Telangana High Court

The State Of Telangana And 4 Others vs Dharavath Sunitha on 25 March, 2022

Bench: Satish Chandra Sharma, Abhinand Kumar Shavili

THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                               AND
    THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI



 WRIT APPEAL Nos.638, 682, 789, 793, 804, 813 and
                  822 of 2019;
    CONTEMPT APPEAL Nos.49 and 50 of 2019

COMMON JUDGMENT:    (Per the Hon'ble the Chief Justice Satish Chandra Sharma)


     Regard being had to the similitude in the controversy

involved in the present cases, the writ appeals and the

contempt appeals were analogously heard and by a

common judgment, they are being disposed of by this

Court.


     The facts of the W.A.No.638 of 2019 are as follows:-


     The present writ appeal is arising out of an order

dated 07.02.2018 passed by the learned Single Judge in

W.P.No.34724 of 2016.


     The facts of the case reveal that the respondent

before this Court/writ petitioner belongs to Lambada Caste

which is a Scheduled Tribe Community and he is holding a

post graduation degree in Master of Arts, B.Ed. and D.Ed.

qualifications. An advertisement was issued by the District

Collector, Warangal, on 15.07.2012 inviting applications

for the posts of Secondary Grade Teachers (SGTs) at

various places in the agency area. The respondent/writ

petitioner applied for the post in question. He was selected

and an appointment order was issued on 04.08.2016.

Later on, a complaint was received in the matter lodged by

the President of Adivasi Hakkula Porata Samithi

(Tudumdebba), Warangal District, that respondent/writ

petitioner and other persons are not having a local

Scheduled Tribe status and a prayer was made for

cancellation of their appointment orders. The Project

Officer, after enquiring into the matter, has cancelled

appointment of the respondent/writ petitioner and other

identically placed persons. In those circumstances, the

writ petition was preferred. The learned Single Judge has

allowed the writ petition directing reinstatement of the

respondent/writ petitioner.

The facts of the case further reveal that initially a

certificate was issued in respect of the respondent/writ

petitioner and it was cancelled on 01.07.2013 by the

District Level Scrutiny Committee holding that the

community certificate was not genuine. However, later on

the respondent/writ petitioner submitted a fresh

application under the provisions of the Andhra Pradesh

Scheduled Castes, Scheduled Tribes and Backward Classes

(Regulation of Issue of Community Certificate) Act, 1993,

and after conducting a detailed enquiry, a certificate was

issued vide proceedings dated 11.01.2016. The

respondent/writ petitioner, as he was fulfilling the

qualification required for the post in question and armed

with a local Scheduled Tribe caste status certificate,

applied for the post and he was granted appointment. In

those circumstances, the writ petition has been allowed.

Learned counsel for the State Government has

vehemently argued before this Court that once a decision

was taken in the year 2013 that the respondent/writ

petitioner was not having the local Scheduled Tribe status,

a fresh certificate could not have been issued in the year

2016.

This Court has carefully gone through the fresh

certificate issued under the Act of 1993 and after

conducting a detailed enquiry, the certificate was issued.

It is nobody's case that the subsequent certificate issued in

the matter dated 11.01.2016 has been cancelled by the

Collector at any point of time. Otherwise also, the issue of

local Scheduled Tribe status was considered by the Hon'ble

Supreme Court in its landmark judgment in the case of

Chebrolu Leela Prasad Rao and others v. State of

Andhra Pradesh and others1 decided on 22.04.2020. In

the said case, the Hon'ble Supreme Court was dealing with

similar provision of reservation for local Scheduled Tribes

and has arrived at a conclusion that there cannot be a

further reservation for local Scheduled Tribes and the

notification issued in respect of local Scheduled Tribes was

set aside by the Hon'ble Supreme Court. The relevant

portion of the decision rendered by the Hon'ble Supreme

Court in the said case is reproduced as under:-

"154. We answer the questions referred to us thus:

2020 Law Suit (SC) 340 : 2020 SCC OnLine SC 383

Question No. 1: The Governor in the exercise of powers under Para 5(1), Fifth Schedule of the Constitution, can exercise the powers concerning any particular Act of the Parliament or the legislature of the State. The Governor can direct that such law shall not apply to the Scheduled Areas or any part thereof. The Governor is empowered to apply such law to the Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and can also issue a notification with retrospective effect.

Question No. 1(a): The Governor is empowered under Para 5(1), Fifth Schedule of the Constitution, to direct that any particular Act of Parliament or the Legislature of the State, shall not apply to a Scheduled Area or apply the same with exceptions and modifications. The Governor can make a provision within the parameters of amendment/modification of the Act of Parliament or State legislature. The power to make new laws/regulations, is provided in Para 5(2), Fifth Schedule of the Constitution for the purpose mentioned therein, not under Para 5(1) of the Fifth Schedule to the Constitution of India.

Question No. 1(b): The power of the Governor under Para 5(1), Fifth Schedule to the Constitution does not extend to subordinate legislation, it is with respect to an Act enacted in the sovereign function by the Parliament or legislature of the State which can be dealt with.

Question No. 1(c): The Governor's power under Para 5(1) of the Fifth Schedule to the Constitution is subject to some restrictions, which have to be observed by the Parliament or the legislature of the State while making law and cannot override the fundamental rights guaranteed under Part III of the Constitution.

Question No. 1(d): In exercise of power under Para 5(1) of the Fifth Schedule to the Constitution of India, the Governor

cannot override the notification issued by the President in the exercise of powers under Article 371D. The power has to be exercised harmoniously with such an order issued under Article 371D, not in conflict thereof.

Question No. 2: G.O.Ms. No. 3/2000 providing for 100 per cent reservation is not permissible under the Constitution, the outer limit is 50 per cent as specified in Indra Sawhney & Ors. v. Union of India & Ors. (1992 Supp 3 SCC 217).

Question No. 3: The notification in question cannot be treated as classification made under Article 16(1). Once the reservation has been provided to Scheduled Tribes under Article 16(4), no such power can be exercised under Article 16(1). The notification is violative of Articles 14 and 16(4) of the Constitution of India.

Question No. 4: The conditions of eligibility in the notification with a cut-off date, i.e., 26.1.1950, to avail the benefits of reservation, is unreasonable and arbitrary one.

RELIEF:

As a sequel to the quashing of G.O. Ms. No. 3 of 2000, the appointments made in excess of the permissible reservation cannot survive and should be set aside. However, on behalf of State and other respondents, it was urged that appointments may not be set aside. In the peculiar circumstances, the incumbents, who have been appointed, cannot be said to be at fault and they belong to Scheduled Tribes.

We cannot ignore the fact that a similar G.O. was issued by the erstwhile State Government of Andhra Pradesh in the year 1986, which was quashed by the State Administrative

Tribunal, against which an appeal was preferred in this Court, which was dismissed as withdrawn in the year 1998. After withdrawal of the appeal from this Court, it was expected of the erstwhile State of Andhra Pradesh not to resort to such illegality of providing 100% reservation once again. But instead, it issued G.O. Ms. No. 3 of 2000, which was equally impermissible, even if the A.P. Regulation of Reservation and Appointment to Public Services Act, 1997 would have been amended, in that event also providing reservation beyond 50% was not permissible. It is rightly apprehended by appellants that the State may again by way of mis-adventure, resort to similar illegal exercise as was done earlier. 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 Indra Sawhney (supra) 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 to 100% reservation. It is unfortunate that illegal exercise done in 1986 was sought to be protected by yet another unconstitutional attempt by issuing G.O.Ms. No. 3 of 2000 with retrospective effect of 1986, and now after that 20 years have passed. In the peculiar circumstance, we save the appointments conditionally that the reorganised States i.e. the States of Andhra Pradesh and Telangana not to attempt a similar exercise in the future. If they do so and exceed the limit of reservation, there shall not be any saving of the appointments made, w.e.f. 1986 till date. We direct the respondents-States not to exceed the limits of reservation in future. Ordered accordingly.

Resultantly, we allow the appeals, and save the appointments made so far conditionally with the aforesaid riders. The cost of appeal is quantified at Rupees Five Lakhs and to be shared equally by the States of Andhra Pradesh and Telangana."

The entire controversy involved in the present case

stands concluded on account of the aforesaid judgment

and once the posts cannot be reserved for the local

Scheduled Tribes, the question of denying appointment to

the respondent/writ petitioner on the ground that the

earlier certificate in respect of local Scheduled Tribe status

was cancelled does not arise.

While the matter was taken up in the pre-lunch

session, the learned Government Advocate was requested

to inform this Court whether the posts are available or not.

During the post-lunch session, the learned Government

Advocate has brought to the notice of this Court, the fax

message received from the Deputy Director (TW) (FAC),

ITDA Eturnagaram, and the same is reproduced as under:-

"GOVERNMENT OF TELANGANA STATE TRIBAL WELFARE DEPARTMENT INTEGRATED TRIBAL DEVELOPMENT AGENCY ETURNAGARAM

From: To:

Dr.M.Dileep Kumar BDS., The Government Pleader (Ser-II) Deputy Director (TW)(FAC) Hon'ble High Court for ITDA Eturnagaram the State of Telangana Mulugu District Hyderabad

Lr.Rc.No.E/Spl/2022 Dt: 03-2022.

Sir,

Sub: TWD, ITDA, Eturnagaram - DD(TW) -

Education - Estt - Court Cases - WA 682 OF 2019 - the Government Pleader (Ser.II) Hon'ble High Court for the State of Telangana Sought certain information - Furnishing the same - Reg.

Ref: 1. Telephonic instructions of the Government Pleader (Ser.II) Hon'ble High Court for the State of Telangana Dt:25-03-2022.

@@@ I invite your kind attention to the reference cited, where in the Government Pleader (Ser.II) Hon'ble High Court for the State of Telangana has informed that, the Hon'ble Chief Justice of Hon'ble High Court for the State of Telangana on hearing the W.A.No.682 of 2019 and batch has instructed to get the instructions on whether the vacancies are available to reinstate the respondents in the above said Writ Appeals. Hence the Government Pleader (Ser.II) Hon'ble High Court for the State of Telangana has sought for certain information on the vacancy position of the SGT cadre in Agency area of Erstwhile Warangal District.