UNIVERSITY OF KASHMIR

DEPARTMENT OF LAW

ASSIGNMENT ON
CONSTITUTIONAL LAW
 1. Satyajit Kumar & Ors. v. The State of Jharkhand & Ors

SUMMARY:
The appeals were filed against the judgment of the Division Bench of the Jharkhand High Court dated
21-9-2020, through which notifications issued by the Governor, State of Jharkhand and the
consequential advertisements notifying the vacancies and letter of appointment issued qua posts of
trained graduate teachers in government schools of 13 Scheduled areas as illegal, ultra vires and
unconstitutional. The Division Bench had quashed the notification and all the appointments
consequently made, whilst accepting a challenge to the 100% reservation made for the posts of
those 13 districts. The 13 districts in the scheduled areas are these areas notified through
Presidential Notification dated 11-4-2007, in which whilst issuing the posts, 100% reservation was
made for local residents of these local districts, which fell for challenge on various grounds of being
violative of Article 13, 14, 16(2), 19 of the Constitution of India.
The Court formulated the following three issues for resolution and consideration:
1. Whether in exercise of powers conferred under Para 5(1) of the Fifth Schedule to the Constitution
of India, the Governor can provide for 100% reservation contrary to Part III of the Constitution of
India, more particularly, guaranteed under Articles 16(1) and (2)
2. Whether in exercise of powers under Para 5(1) of the Fifth Schedule to the Constitution of India,
the Governor has the power to modify the relevant recruitment rules framed under Article 309 of
the Constitution of India.
3. Whether the appointments that were already made against the notified vacancies and posts ought
to be disturbed or left undisturbed.
For answering the aforesaid issues, the Apex Court referred to Articles 13, 16, 46, 244, 246, 254, 309
and Para 5 of the Fifth Schedule of the Constitution which states the law applicable to Scheduled
Areas. The Court then placed reliance on of Chebrolu Leela Prasad Rao & Ors and after taking into
consideration the relevant provisions of the Constitution, held that the Governor's power to make
new law is not available in view of the clear language of Para 5(1) Fifth Schedule does not recognize
or confer such power, but only power is not to apply the law or to apply it with exceptions or
modifications.

CONCLUSION:
Applying law laid down by the Constitution Bench of this Court in the case of Chebrolu Leela Prasad
Rao to the facts of the case on hand, the impugned Order/ Notification No.5938 and the Order
No.5939 dated 14.07.2016 providing 100% reservation for the local residents of concerned
Scheduled Districts/ Areas only can be said to be:
i) Beyond the scope and ambit of powers conferred upon the Governor under para 5(1) of the
Fifth Schedule of the Constitution of India.
ii) 100% reservation provided for the local residents of the concerned Scheduled Districts /
Areas only would be violative of Article 16(2) of the Constitution of India and affecting rights
of the other candidates / citizens of non-scheduled areas / Districts guaranteed under Part
III of the Constitution of India.
iii) The exercise of powers by the Governor under para 5(1) of the Fifth Schedule of the
Constitution of India modifying Recruitment Rules, 2015 which are framed under Article 309
of the Constitution of India which can be said to be subordinate legislation and cannot be
said to be an Act or the Law made by the Parliament and or State Legislature is beyond the
 scope and ambit of Governor's power under para 5(1) of the Fifth Schedule of the
Constitution of India.

The Court also noted that selected candidates are already working since last about three
years, in case appointments already made are not protected then thousands of schools in
the State of Jharkhand would be without teachers and the ultimate sufferers would be the
children of tribal areas, thus the Bench held.
Hence, we are of the opinion that while moulding the relief, instead of initiating a fresh
recruitment process, if directions are issued for preparation of fresh selection list based on
revised merit and based on already published cut off obtained by the last selected candidate
in each TGT subject against respective categories.
In the light of these observations, the Court upheld the order of the High Court declaring
the impugned Notification/Order as unconstitutional and ultra vires Articles 14, 16(2), 16(3)
and 35(ais) of the Constitution of India and dismissed the appeals challenging the impugned
judgment of the High Court.

COMMENTARY:
The Supreme Court's decision to quash the 100% quota for local candidates from scheduled
districts in Jharkhand is based on a principle of non-discrimination and equal opportunity for
all citizens, as enshrined in the Indian Constitution. The Court's view is that such a high level
of reservation goes against the fundamental principles of equal rights and equal opportunity
for all citizens. The Court also emphasized that public employment should not be unjustly
denied to certain individuals and should be open to all citizens.

The case raises significant constitutional and legal questions regarding the power of the
Governor under the Fifth Schedule of the Indian Constitution, which governs scheduled
areas. The Court's interpretation suggests that the Governor's power is not absolute and
should not override the core principles of the Constitution.

The decision highlights the need to balance the interests of local residents in scheduled
areas with the broader principles of equality and non-discrimination under the Constitution.
It also underscores the importance of adhering to constitutional provisions and ensuring
that reservations do not become overly exclusive and discriminatory.

Ultimately, the Supreme Court's judgment aims to strike a balance between promoting the
interests of local residents in scheduled areas and upholding the fundamental principles of
equality and non-discrimination enshrined in the Indian Constitution. It serves as an
important legal precedent for future cases involving reservations and affirmative action in
India.

2. AHMEDNAGAR MAHANAGAR PALIKA VS KAMGAR UNION

 SUMMARY:

Ahmednagar Municipal Council was converted to Ahmednagar Mahanagar Palika in 2003, and an
important demand on the part of employees was the assurance that their heirs would be employed
by the Ahmednagar Mahanagar Palika. As a major demand of its employees, it was agreed upon by
the Municipal Council. Hence, the Industrial Court administered that the employees in Class-IV
category (if they die before their retirement, if they become invalid, or if they retire), their heirs
should be given employment in their stead. When some further demands were raised and the
decision was supposed to be modified, the Industrial Court changed the condition. This led to the
Ahmednagar Mahanagar Palika being instructed to (1) provide employment to heirs of ‘CLASS-IV’
employees working in healthcare only, (2) provide employment to heirs of all the classes on
compassionate grounds as per government regulations and directions. This meant that the heirs of
employees won’t be rewarded with employment on compassionate grounds on retirement and only
provided to heirs of deceased employees of the Class-IV category.

Later on, Ahmednagar Mahanagar Palika Kamgar Union went on to demand the employment of
heirs of the retired employees according to the previous judgment. Under the guidance of the High
court, the Industrial court changed the course of action and provided the legal heirs of the
employees with work on grounds of retirement and superannuation. Dissatisfied with the decision,
Ahmednagar Mahanagar Palika presented the appeals.

CONCLUSION:

The Hon’ble court in the case held that regarding the present situation of the country as opposed to
when the first judgment came out in 1979, it is unreasonable to provide employment to heirs of
employees on compassionate grounds as observed by both the Industrial Court and the High Court.
After the conversion of the institution, it is now under the jurisdiction of the State government and
there is no provision for any such heirs’ rights. Compassionate employment is already considered as
an exception and cannot be provided as it opposes Article 14 of the Indian Constitution. Even if it is
known as ‘varas hakka’, it is not provided by any act or employment scheme. It was observed

“The employees of the Mahanagar Palika/Municipal Corporation shall be governed by the scheme of
the State Government at par with the government employees, which does not provide for
appointment on compassionate grounds to the heirs of the employees on their retirement and/or
superannuation. Even otherwise, such an appointment to the heirs of the employees on their
retirement and/or superannuation shall be contrary to the object and purpose of appointment on
compassionate grounds and is hit by Article 14 of the Constitution of India.”

The court also observed that if the compassionate employment is not scrutinized properly, it may be
unfair to the outsiders who are more qualified, as only the heirs will be reappointed. Therefore, the
appeal was allowed.

COMMENTARY:

The court's decision appears to be based on a revaluation of the compassionate employment policy
in light of changing circumstances. It highlights that compassionate employment is an exception to
the general rules of recruitment and that providing employment to heirs on grounds of retirement
and superannuation may not be justifiable or fair in the present context. The court's observation
that compassionate employment should not be extended to retired employees' heirs is grounded in
the notion that it could potentially be unfair to other more qualified job seekers, as it might favor
the heirs based on their relationship rather than merit.

From a legal and constitutional perspective, the court's decision seems to be in alignment with the
principle of equality enshrined in Article 14 of the Indian Constitution. It underscores the need for
fair and non-discriminatory hiring practices, ensuring that employment opportunities are offered
based on qualifications and merit rather than family connections.

However, from the perspective of the Ahmednagar Mahanagar Palika Kamgar Union and the heirs of
retired employees, the decision may be viewed as a setback, as they were seeking compassionate
employment opportunities for the heirs. They may argue that compassionate employment is a form
of support provided to families who lose their primary breadwinners and that, while it is an
exception, it serves an important social and welfare function.

In summary, the opinion on this case is likely to be divided between those who prioritize fairness in
employment practices and those who view compassionate employment as a valuable support
mechanism for families in need. The court's decision reflects a balance between these perspectives
while considering the changing social and legal context.

3. AISHAT SHIFA VS STATE OF KARNATAKA & Ors.

The primary issue in this case was whether the State can impose restrictions on the fundamental
rights of students, including the right to dignity, privacy and freedom of expression, on the grounds
of ensuring ‘uniformity and equality’. The Appellant approached the Court to determine the
constitutionality of the Government Order issued under the Karnataka Education Act, 1983. The
Order stated that wearing religious symbols, including headscarves, posed an obstacle to unity and
uniformity amongst students. Moreover, it claimed that the prohibition on wearing headscarves in
schools and colleges was not violative of Article 25 of the Constitution.
The Supreme Court of India examined the constitutionality of a government order which prohibited
female Muslim students from wearing a headscarf or hijab inside schools and colleges.
The Appellant was aggrieved by a government order issued by the Education Department of
Karnataka which mandated educational institutions to abide by the applicable official uniform in
order to ensure unity, equality and public order.
The division bench of the Supreme Court delivered a split verdict. Justice Hemant Gupta upheld the
validity of the Order and opined that it reinforced the fundamental right to equality under Article 14
of the Constitution. He reasoned that the Order met the constitutional requirements to impose a
restriction on the freedom of expression and right to privacy of the students. Conversely, Justice
Sudhanshu Dhulia held that the Government Order was unconstitutional. Justice Dhulia reasoned
that a student's rights to dignity, privacy, and freedom of expression were inalienable rights, and
they could not be restricted on the basis of maintaining discipline and uniformity.
CONCLUSION:
The division bench of the Supreme Court presiding over this case, Justice Hemant Gupta and Justice
Sudhanshu Dhulia, delivered a split verdict. Hence, the Court sought for the matter to be placed
before a larger bench of the Court which may be constituted by the Chief Justice of India.
Justice Gupta, in his opinion, concurred with the judgement of the High Court, and upheld the
constitutional validity of the Government Order. Justice Gupta posited that the State did not restrict
the students from exercising the right to privacy and freedom of expression, since it has only
regulated the exercising of these rights during school hours on working days. Furthermore, Justice
Gupta opined that the Government Order was in-line with the right to equality enshrined under
Article 14 of the Constitution, as the Government Order intended to ensure uniformity, fraternity,
and equality amongst the students. On these grounds, he found the Government Order to be
constitutionally tenable, and not violative of the right to freedom of expression and the right to
privacy guaranteed under Articles 19(1)(a) and 21 of the Constitution.
On the other hand, Justice Dhulia found the Government Order to be violative of Article 19(1)(a) and
Article 21 of the Constitution. Justice Dhulia’s analysis was predicated on the inalienable nature of an
individual’s right to privacy and dignity guaranteed under Article 21 of the Constitution. Justice
Dhulia emphasised that a girl child’s right to wear a hijab extended both within and beyond the
confines of her house, and this right was inextricably tied to her privacy and dignity. Therefore, the
Government Order, which required her to remove her hijab in order to enter her school, was an
invasion of her privacy and dignity.
Lastly, Justice Dhulia expressly disagreed with the analysis provided by the High Court in the original
petition. He stated that it was incorrect to classify the Government Order as merely regulating the
exercise of the right to privacy and freedom of expression within schools. Per Justice Dhulia, it was
crucial for the High Court to first examine whether the Government Order withstood the established
constitutional test of reasonableness in order to find it constitutionally tenable. Since the State did
not provide any valid or reasonable justifications for restricting the fundamental rights to freedom of
expression and privacy of the students, Justice Dhulia found the Government Order to be
unconstitutional.
COMMENTARY:
This case highlights a significant and complex issue that revolves around the balance between
individual fundamental rights and the state's interest in maintaining discipline, uniformity, and public
order within educational institutions. The case underscores the importance of Article 14 (Right to
Equality), Article 19(1)(a) (Freedom of Expression), and Article 21 (Right to Life and Personal Liberty)
of the Indian Constitution.
Justice Hemant Gupta's opinion emphasizes the need to ensure uniformity, fraternity, and equality
among students within educational institutions. He argues that the government order, which restricts
the wearing of religious symbols, including headscarves, during school hours on working days, does
not fundamentally infringe upon the students' rights to privacy and freedom of expression. He
believes that this restriction is justifiable and meets the constitutional requirements, thereby
upholding the order's validity.
On the other hand, Justice Sudhanshu Dhulia's opinion takes a different perspective. He argues that
students have inalienable rights to dignity, privacy, and freedom of expression, which extend both
inside and outside their homes. He asserts that forcing a student to remove her hijab in order to
attend school is a direct violation of her privacy and dignity. Justice Dhulia believes that the
government's order fails the constitutional test of reasonableness because it lacks valid and
reasonable justifications for restricting fundamental rights. He finds the order unconstitutional based
on these grounds.
The case ultimately highlights a tension between two important constitutional principles: the right to
equality and the protection of individual fundamental rights. It also underscores the importance of a
nuanced analysis to strike a balance between these competing interests. The fact that the division
bench delivered a split verdict indicates the complexity of the matter and its significance,
necessitating a larger bench to further deliberate on this matter.
The final resolution of the case will likely have broader implications for the interpretation of
fundamental rights and their limitations in the context of educational institutions and religious
practices. The decision of the larger bench will be crucial in providing clarity on this complex issue.