SUMAN K SHRIVASTAVA
Ranchi, Jan 31: Jharkhand Chief Minister Hemant Soren should have gone through the notes written by the state’s law department on the 1932 domicile bill file before spitting venom against Governor Ramesh Bais and the BJP government in Delhi.
For, the Governor returned the bill a couple of days back for a review of its legality citing the law department’s noting on the file sent to it for its opinion on the bill passed by the State Assembly. It provoked Hemant Soren who declared at a public rally on Monday that “Rajyapal jo chahenge, wah nahi hoga…Rajya Sarkar jo chaehgi, wahi hoga.”
Notably, there was no provision for giving class III and IV jobs to the locals defined on the basis of the 1932 khatiyan (land records) in the draft Jharkhand Definition of Local Persons and for Extending the Consequential Social, Cultural and Other Benefits to such Local Persons Bill, 2022 tabled in the Assembly.
It was added and passed by the State Assembly after such an amendment was moved to this effect by the CPI (ML) member Vinod Singh.
Notably, the bill was rushed in a special session on November 11 last year in view of the JMM election promise to define locals on the basis of the 1932 land records. The earlier cut-off date was 1985. The bill was passed amid the Enforcement Directorate’s probe against Chief Minister Hemant Soren in an illegal mining case.
Incidentally, the personnel department sought the opinion on the bill after the assembly passed it. The action bemused many as the opinion of the law department is generally sought before a bill is tabled in the Assembly. And once the Assembly passes the bill, it is supposed to be final and fit to be sent to the Governor for his assent.
There was no problem with the original 1932 domicile bill tabled in the Assembly. However, when the law department made its scrutiny second time it found that the amendment of giving 100 percent class III and IV jobs to the locals defined under the Act was contrary to several judgements of the Supreme court.
According to the amendment, only local persons as defined under the Act shall be eligible for appointment against class III and class IV posts under the State government.
It implied that other citizens/candidates whether STs/SCs/OBCs/General candidates who are not local persons as defined under the Act shall be absolutely excluded/prevented from getting equality of opportunity in matters of public employment as guaranteed by Article 16.
The law department, in its note, says that reserving class III and IV jobs for only the locals, defined on the basis of the 1932 land records (Khatiyan) amounts to making 100 percent reservation for the locals and it is not permissible under the Constitution.
However, the government ignored it and sent the Bill to the Governor to be forwarded for the assent of the President and to be placed in the Ninth Schedule.
Not surprisingly, the Governor returned the bill citing the opinion of the law department which the department of personnel ignored. It should have pointed it out to the chief minister but it did not apparently want to invite the wrath of the Chief Minister.
The chief minister also knew that he cannot legislate such a law as was evident from his remark on the floor of the House a few months back before he rushed the 1932 bill. So, this time, he said that the law will be effective after the Centre puts it in the Ninth Schedule of the Constitution.
The law department has said that under Article 16 of the Constitution, all citizens have equal rights in the matter of employment. According to Article 16(3) of the Constitution, only the Parliament has been empowered to impose any kind of conditions in the matter of employment under Section 35(A) under special provision. The State Legislature does not have this power, it added.
Citing the Supreme Court judgement in AVS Narasimha Rao and others vs. Andhra Pradesh and others (AIR 1970 SC 422), it pointed out that the right to impose any kind of conditions in the matter of employment is vested only in the Indian Parliament.
Moreover, the powers vested in the Governor to impose conditions for appointments in the Scheduled Areas were also declared by the Supreme Court to be contrary to Article 16 of the Constitution.
The Supreme Court, in Soni Kumari vs Jharkhand government, has already set aside the Jharkhand government’s policy to reserve all the posts under Schedule Areas for the local residents.
In the case of Satyajit Kumar vs. the State of Jharkhand, the Supreme Court again declared 100 percent reservation given by the state in scheduled areas as unconstitutional.
Notably, the Supreme Court had reprimanded the Andhra Pradesh Government in Chebrolu Leela Prasad Rao vs State Of A.P case for making such a move.
“It was least expected from a functionary like Government… 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… We direct the respondents-States not to exceed the limits of reservation in future. Ordered accordingly.”
The Supreme Court, in another judgement, says that “the legislative power to create residential qualification for employment is thus exclusively conferred on Parliament. Parliament can make any law, which prescribes any requirement as to residence within the State or Union territory prior to employment or appointment to an office in that State or Union territory.
Incidentally, the apex court has also set aside Parliament’s sweeping power to make ‘any law’ as regards residential requirements.