Andhra & Telangana: SC’s refusal to review case for 100% ST reservation in teaching posts across states’ tribal areas is concerning

The Supreme Court has refused to reconsider its April 2020 verdict passed by a five-judge bench which had quashed the government’s proposal to enable 100 per cent reservation to local Scheduled Tribes (STs) for teachers’ posts in the Scheduled Area of united Andhra Pradesh. 

Deciding on the review petitions filed by both the Telangana and Andhra governments as well as some tribal groups, the apex court held on April 3 that ‘no case for review of its earlier judgment is made out’. 

This is a cause of grave  concern for the tribal populations living in the Scheduled Areas of Andhra Pradesh and Telangana.

Court litigations since 1986

Initially, the litigation started with the issuance of a government order in 1986 by the governor in exercise of powers under 5(1) of Fifth Schedule to the Constitution; this reserves teaching posts in educational institutions of the Scheduled Area for STs only.

The order was quashed by the Administrative Tribunal in 1989. 

There is little explanation as to why the government challenged the said order in the Supreme Court to later withdraw in 1998.  

A parallel litigation started in 1993, allowing non–tribals to hold the posts of teachers till such time qualified local tribals are available. 

The Single Bench of High Court of Andhra Pradesh quashed the order in 1996 at the instance of a writ petition filed by non-tribal teachers when their services were terminated. 

However, the said government order was upheld by a Division Bench in a Writ Appeal filed by the government in 1997. In another round of litigation, the non-tribal appointees filed a civil appeal in the Supreme Court which was allowed in their favour in 1998.  

Instead of taking legal recourse to justice, the Government of Andhra Pradesh had again come up with a fresh notification in 2000 under 5(1) of the Fifth Schedule. This effectively provided 100 per cent reservation to local STs for teaching posts in the Scheduled Area, thereby opening a new window for further litigation. 

However the Tribunal set aside the order in September 2000.

Aggrieved by that Tribunal order, writ petitions were filed by tribals in the High Court. A three-judge Bench upheld the validity of the government order by majority.

In the wake of the Tribunal order, civil appeals were filed in 2002 by Chebrolu Leela Prasad along with a group of non-tribal people.

Finally, a five-judge Bench of the Supreme Court struck down the order while staying the tribal teacher appointments already made in April 2020 with a warning to both state governments to not attempt a similar exercise in the future.

Findings of the five judges bench

A five-judge Bench of the Supreme Court held in G.O Ms no. 3 case that the governor’s power under Para 5(1) of Fifth Schedule is limited only to modify the laws made by Parliament or state legislatures. 

This power does not extend to the subordinate legislations covered by Article 309 of the Constitution in relation to the condition of recruitment and public services of persons in the state.

The Supreme Court further held that the power of governor cannot override the fundamental rights guaranteed under Part III of the Constitution or the Presidential order Article 371D which provides reservation in direct recruitment for local candidates. Moreover, the 100 per cent  quota in jobs for local tribals is impermissible as the outer limit is 50 per cent as specified in the Indra Sawhney & Ors v. UOI & Ors. (1992) case. 

Impact of ruling

Now this ruling of Supreme Court has become a precedent to overturn the reservation rule made to benefit STs in Chhattisgarh State (Nandakumar Gupta Vs State of Chhattisgarh held in High Court in May 2022) and Jharkhand State (Satyajit Kumar vs The State Of  Jharkhand in August, 2022 by Supreme Court). 

The ruling of the Supreme Court, which allows non-tribals to apply for jobs in the Scheduled Area, will aggravate the problem of tribal land alienation and resources. 

The tribal protective Land Transfer Regulations 1 of 70 in both Telangana and Andhra prohibits transfer of land in favour of non-tribals, either from tribals or non-tribals, in the Scheduled Area.

Also, government records show that more than 50 per cent of land is held by non-tribals in the Scheduled Area of united Andhra Pradesh. 

Paving way for demographic shifts?

The ruling of the Supreme Court can bring a radical demographic change of tribal and non-tribal population in the Scheduled Area, which would invariably lead to the demand for de-scheduling of the area, thereby robbing STs of their special constitutional rights. 

In fact, the Scheduled Areas have been treated specially and special constitutional provisions were made to safeguard the interest of STs. The G.O No. 3 was issued to improve the  literacy levels of STs by overcoming the phenomenal absenteeism of  teachers in schools by making local tribal teachers available. 

Providing 100 per cent reservations in local jobs for tribals cannot be seen as a part of quota in jobs, but improving the literacy levels of tribal children through teaching by local tribal teachers who are able to teach in their language and idioms known to them, aligning with local traditions and cultural context.

The verdict of the Supreme Court would, in all likelihood, lead to the tense situation experienced in earlier years in the hypersensitive areas of the Scheduled Areas.  The situation may also stand in the way of taking up other socio-economic development schemes for STs.

Available legal remedies

Therefore, the final legal recourse against the dismissal of the review petitions is a curative plea, or taking a legislative route to uphold 100 per cent local ST quota in jobs. 

In this context, there is a need to bring a new law repealing the existing law under 5(2) of Fifth Schedule of the Constitution which empowers the governor to promulgate a regulation to maintain peace and good governance in the Scheduled Area, with the assent of the President of India to provide 100 per cent quota in jobs to the local STs. 

The Tribes Advisory Council in Andhra Pradesh already passed resolutions in its 111th, 112th and 113th meetings held between 2020 and 2022. These recommended the government bring a new law under 5(2) of Fifth Schedule to safeguard the interest of tribals.

On the request of the Tribal Welfare Department, Government of Andhra Pradesh, the author of this article drafted a new regulation and also a presidential notification to amend the Article 371 D of the Constitution which is coming in the way of providing special quota for local tribes in the Scheduled Area of the state. 

These draft laws are awaiting the opinion of the Advocate General for taking them up further.  

It is relevant to cite here that the Supreme Court in G Mohanarao & others Vs State of Tamil Nadu cited the judgement of its ruling  in Ujagar Prints & Ors. (II) vs. Union of India & Ors. 34, a five-judge Bench of Supreme Court said, “A competent legislature can always validate a law which has been declared by courts to be invalid, provided the infirmities and vitiating factors noticed in the declaratory judgment are removed or cured….”  

Therefore, the governments of Andhra Pradesh and Telangana should take immediate steps to contain the unrest among the tribals in the Scheduled Area and consider taking a legislative route to uphold the intent in letter and spirit of the Fifth Schedule of the Constitution and remove the material basis of a verdict by correcting the anomalies pointed out by the Supreme Court. This may be considered as a separate legal measure.

Palla Trinadha Rao is a practicing lawyer and tribal rights activist. Views expressed are the author’s own and don’t necessarily reflect those of Down To Earth.