Swapnil Pandey (Student of Dharmashastra national Law University ,Jabalpur). Amide all the contemporary issues that India is Facing, The issue of reservation in is one of the most fundamental topic of discourse in the Country from very beginning of the modern day Independence India, with aim of bringing those section of society which are laid as backward in the country, toward the main stream of the society the reservation has been a tool to create equality in the society and that same time has also gone through a series of reforms by the Judicial pronouncement in the country. From the Case of “Champakam Dorairajan”1 to “Indira Sawhney”2 case, a large number of judicial Decision has laid down the reservation in a more systematic form, and now the recent change that happen is in the policy of Reservation related to the service matters, the supreme court of India through significant judgement has now specified the power of governor and state governments and this judgement is unique in its own kind. In the case of “ Chebrolu Leela Prasad Rao and others v. State of Andhra Pradesh” and others the
supreme court laid by 5 judges constitutional bench has struck down the order of the Andhra Pradesh government which allowed for 100% reservation in teaching post for scheduled tribes in schedule area as illegal and in permissible.
The Bench headed by Justice. Arun Mishra held that-
It was least expected from the functionary like government to act in aforesaid manner as they were bound by the dictum laid down by this court in Indira Sawhney and other decisions holding that the limit of reservation not to exceed 50%. There was no rhyme or reason with the state government to resort 100% reservation.1
This case was started in year 2000 when governor of the undivided Andhra Pradesh passed order which provide 100% reservation to the candidate who belong to scheduled tribe in the teaching post which came under scheduled area provided under schedule V2 of constitution of India. The schedule V of the Constitution in general term provide the power to governor to have special responsibility with respect to the tribal population of the area and also can repeal or amend any act of parliament or of legislation of the state or any existing law which is for the time being applied to the area in question.
Also by the power that is specified in schedule V the governor of a state which has schedule area shall annually or when required can make a report to the president regarding the administration of the area.
By schedule V the union government has power to bring special provisions for administration through the governor and also it provides power to establish Tribal Advisory Council (TAC).
THE GREAT DEFENCES
The Andhra Pradesh government has cited many reasons behind this order and the three main defence that was given by Andhra Pradesh government in the apex Court are as follows:-
The promotion of educational development of tribal .(Education oriented Approach)
To solve the problem of phenomenal absenteeism of teachers in the school situated in scheduled area. (Discipline Oriented Approach) And to protect the interest of local tribal.(Job Oriental Approach)
Before considering reasons it is to be noted that the order was earlier had also been passed by Andhra Pradesh government in 1986 but it was struck down by the supreme court 1998 , but Andhra Pradesh government by taking advantage of schedule 5 paragraph 5 (1) introduced the same order in year 2000.1
But as we know each state has some local laws to regulate the services matter in the state and on that basis, the state of Andhra Pradesh has also laws like "Andhra Pradesh regulation of reservation and appointment to public services act 1997" and "Andhra Pradesh state and subordinate service rules 1996 " which clearly say that there can be 6% reservation for Schedule Tribe in the state. And it is reasonably right as in present time period, in the state of Telangana and Andhra Pradesh there is approx 9% and 6% of schedule tribe population respectively so the 6% reservation is reasonably right, and on that bases the 100 % reservation order what challenge in the Andhra Pradesh administrative tribunal and it was set aside by respected tribunal but later the Andhra Pradesh High court allowed this Order of the State Government by citing Indira Sawhney judgement calling this case as extra ordinary circumstances which allow reservation above 50%.
SUPREME COURT REASONING
In the recent ruling of the supreme court the constitutional bench Interpreted the Subject matter of Schedule V that the governor has power to stop the implementation of any law for the benefit of local tribes in the scheduled area, but it is noted that the governor is not allowed to make any new laws, so giving order for 100% reservation in teaching posts is like making a new law and it is unconstitutional .
Here, it is clearly visible that this law violate the fundamental right of citizens under article 142, article 15(1)3 and article 164 of Indian Constitution which provide equality before law, prohibition against discrimination and providing equal opportunity respectively. But it is crystal clear that this law is openly discriminating not only against the Open category candidates but also against other backward caste and scheduled caste candidates the government argued in front of court that it is better that only tribal should teach tribal as they better understand each other but this reasoning was not accepted by Apex court as other also Resides in the area along with Schedule Tribe. The court declared that here there is a clear violation of supreme court order of Indira Sawhney vs Union of India Case5 in which supreme court 50% kept in reservation and said that if more than 50% reservation is provided it should be extra ordinary circumstances or a special case, but in this case the code has rejected the argument of the government that absenteeism of teacher is extra ordinary circumstances the court given the verdict that the government is enough capable of dealing the problem of absenteeism by imposing punishments like files for making laws on this issue and it is not reasonable to debar all the other candidates of other caste groups. Also the Supreme Court has imposed fine of 5 lakh each on the government of state of Telangana and Andhra Pradesh .
EFFECT ON PREVIOUSLY APPOINTED EMPLOYEES
Also it is noted that this order of the supreme court will not affect those teachers who were already been appointed in that post as the apex court has already made it clear that the effect should be Retrospective and not Prospective. After this judgement it is clear that in future if government breached the limit of 50% reservation in the service matter then that rule will automatically become void but still after that one important thing that remains unanswered that how a extra-ordinary circumstance will be defined and what are the criteria to define that state when we can call a circumstance as ordinary or extra-ordinary .