SUMAN K SHRIVASTAVA
Ranchi, Dec. 21: This mistake the Chief Minister of Jharkhand, Hemant Soren, and his allies will not publicly accept, but his government will do when it has to be in black and white.
The Jharkhand government, in a letter to the Raj Bhawan, has admitted that the State Legislature is not competent to enact a law which prescribes ‘any requirement as to residence within the State prior to employment or appointment to an office in that state.
It is related to a provision in the ‘Jharkhand Definition of Local Persons and for Extending the Consequential, Social, Cultural and Other Benefits to Such Local Persons Bill, 2022’ passed by the Assembly on November 11.
The Bill stipulated to define locals on the basis of the 1932 khatiyan (land records) and reserve jobs in grade III and IV for such locals.
According to sources in the personnel department, the Jharkhand Government, while sending the Bill to the Governor, has written to the Raj Bhawan to request the Central government to move the President to accord her assent to the above bill.
A couple of days back, the chief minister, in a bid to put pressure on the Raj Bhawan, also led a delegation to the Governor to send the bill to the President sooner than later.
The department of personnel, according to sources, has referred to a Supreme Court judgement in the case of AVS Narasimha Rao and others vs State of Andhra Pradesh delivered on March 28, 1969 saying that the legislative power to create residential qualification for employment is exclusively conferred on Parliament. “Parliament can make any law which prescribes any requirement as to residence within the State or Union Territory to employment or appointment to an office in that state or union territory,” it added.
Ironically, none of the MLAs, not even the BJP pointed it out that Parliament has power to make law in such cases when the bill was debated in the State Assembly apparently fearing backlash from tribals and Moolvasis (Natives). No wonder, the bill was passed with a voice vote.
Notably, the State law department has already objected to a provision in the bill to reserve 100 percent government jobs in third and fourth grade for the locals in the State.
This provision had been added to the bill passed by the Jharkhand Assembly through an amendment moved by CPI (ML) MLA Vinod Singh.
According to sources, the law department, in its note, said that reserving class III and IV jobs for 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.
Incidentally, the Jharkhand High Court too in its order scrapping the recruitment policy, referred to another Supreme Court judgement in Kailash Chand Sharma Vs. State of Rajasthan & Ors case saying “Attempts to prefer candidates of a local area in the State were nipped in the bud by this Court since long past. We would like to reiterate that residence by itself — be it within a State, region, district or lesser area within a district — cannot be a ground to accord preferential treatment or reservation, save as provided in Article 16(3).”
The Apex court further said: “we should make note of two things: firstly, discrimination only on the ground of residence (or place of birth) insofar as public employment is concerned, is prohibited; secondly, Parliament is empowered to make the law prescribing residential requirement within a State or Union Territory, as the case may be, in relation to a class or classes of employment. That means, in the absence of parliamentary law, even the prescription of requirement as to residence within the State is a taboo.”
Assembly resolution a way out
According to legal experts, the Government in such cases where it can’t get a legislation passed by the State Legislature, resort to get a resolution passed by the Assembly on the subject. Or the Chief Minister should have taken a delegation to the Centre demanding legislation of such a law in Parliament.
For example, the Jharkhand Assembly passed a resolution seeking the inclusion of Sarna as a separate religion in Census 2021 and sent it to the Centre for approval.
Then the question arises as to why did the Hemant Soren government get such a bill passed by the Assembly which it was not empowered to do so under the Constitution. The obvious answer is: For public posturing and nothing else.
And will the Governor send such a bill which had been passed by the Assembly going beyond the constitutional jurisdiction? Let us wait.
