Case Note & Summary
The petitioner, an education society running a residential school and junior college under the Social Justice and Special Assistance Department (SJASAD) in Nandurbar district, challenged a communication dated 05/10/2019 issued by the Assistant Commissioner (Backward Cell), Nashik. The communication applied the State Government's Notification dated 09/06/2014 to the petitioner's school, mandating recruitment of teachers from local Scheduled Tribe candidates in Scheduled Areas. The petitioner contended that the notification, issued under paragraph 5(1) of the Fifth Schedule to the Constitution, by its express terms, applied only to schools administered by the School Education and Sports Department or the Tribal Development Department, and not to institutions under SJASAD. The petitioner further argued that a clarificatory communication dated 29/07/2015, which sought to extend the notification to private education societies under SJASAD, was impermissible as it amounted to an amendment of the statutory notification by an executive instruction. In support, the petitioner cited Supreme Court precedents holding that a statutory notification cannot be modified by executive communications. The State respondents opposed the petition, relying on an affidavit filed by a Naib Tahsildar, which asserted that a Corrigendum dated 26/06/2015 and a Government Resolution dated 05/03/2015 made the notification applicable to Class-3 posts of private institutions under the Reservation Act, 2001. The State also placed before the Court amendments to the notification made in 2014 and 2019, along with recommendations of the Tribes Advisory Council regarding percentage-based reservation in villages with varying tribal populations. The Court expressed strong displeasure at the State's decision to authorize a Naib Tahsildar to file the reply in a matter affecting Scheduled Areas across Maharashtra. The Court then examined the provisions of the Fifth Schedule, including the establishment and duties of the Tribes Advisory Council and the Governor's power to make regulations and issue notifications. The judgment text provided ends during the Court's discussion of the constitutional scheme, and does not contain the final decision, ratio decidendi, or operative directions. Therefore, the ultimate outcome of the petition is not mentioned in the extracted text.
Headnote
A) Constitutional Law - Fifth Schedule - Governor's Power to Issue Notifications - Constitution of India, Fifth Schedule, para 5(1) - The Governor may by public notification direct that any Act of Parliament or State Legislature shall not apply or shall apply with exceptions and modifications to a Scheduled Area. The Notification dated 09/06/2014 was issued under this power, providing for reservation in direct recruitment to posts in Scheduled Areas only from local Scheduled Tribe candidates for specified cadres. (Paras 4-5) B) Interpretation of Notifications and Executive Communications - Clarificatory Communication Cannot Expand Notification - General Clauses Act, principles of interpretation, and Supreme Court precedents - Petitioner contended that the clarificatory communication dated 29/07/2015, which sought to extend the Notification to private education societies under SJASAD, is an impermissible addition to the statutory notification. Reliance placed on DDA v. Joginder S. Monga, Union of India v. Somasundaram Viswanath, and Punjab Water Supply & Sewerage Board v. Ranjodh Singh. Court noted that a notification cannot be amended by an executive communication. (Paras 5-6) C) Administrative Law - Reservation in Public Employment - Applicability to Different Government Departments - Constitution of India, Fifth Schedule; Maharashtra Government Resolutions - The core dispute was whether the Notification dated 09/06/2014, which by its terms applies to schools under School Education and Sports Department and Tribal Development Department, also covers residential schools sanctioned and controlled by the Social Justice and Special Assistance Department. Petitioner argued that no addition can be made to the notification, and its school is not obliged to fill posts from local ST candidates. The State relied on a corrigendum and Government Resolution dated 05/03/2015 to argue broader coverage. (Paras 3-4, 7-8) D) Constitutional Law - Fifth Schedule - Tribes Advisory Council - Constitution of India, Fifth Schedule, para 4 - The Court referred to the provisions regarding the Tribes Advisory Council and its role in advising the Governor on matters pertaining to welfare and advancement of Scheduled Tribes. The recommendations of the Council in its 50th meeting, including the percentage-based reservation for local ST candidates based on tribal population in villages, were noted. (Paras 8-9, 11-12)
Issue of Consideration
Whether the Notification dated 09/06/2014, issued under para 5(1) of the Fifth Schedule, mandating recruitment of teachers from local Scheduled Tribe candidates in Scheduled Areas, applies to residential schools administered by the Social Justice and Special Assistance Department (SJASAD), and whether the impugned communication dated 05/10/2019 is valid.
Law Points
- Governor's notification under Fifth Schedule
- para 5(1) can provide for reservation in Scheduled Areas
- clarificatory communication cannot expand scope of statutory notification
- precedent that executive instructions cannot override statutory notifications
- the Fifth Schedule's scheme for administration and control of Scheduled Areas
