SUMAN K SHRIVASTAVA
Ranchi, Dec. 7: The Jharkhand law department has thrown a spanner into the Hemant Soren government’s plan 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 on November 11.
The personnel department had sought the law department’s opinion on the bill passed by the Assembly before sending it to the Governor for approval. The law department has sent its opinion to the personnel department.
Notably, the Assembly had passed two bills related to the domicile policy proposing to use 1932 land records to determine people’s domicile status and reserving 100 percent government jobs in third and fourth grade for the locals, and increasing Other Backward Classes’ (OBC) reservation from 14 to 27 percent.
The assembly also passed a resolution to include both these bills in the Ninth Schedule of the Constitution. Both these bills will take the form of law if the Centre includes them in the Schedule.
The Jharkhand Definition of Local Persons and for Extending the Consequential Social, Cultural and Other Benefits to such Local Persons Bill, 2022, was passed in a special session following a demand by tribal bodies who had urged that the last land survey conducted by the British in 1932 be used as the basis for defining ‘locals’. The earlier cut-off date was 1985.
The bills were passed amid the Enforcement Directorate’s probe against Chief Minister Hemant Soren in an illegal mining case. Soren had alleged that he was being targeted out of political compulsions by the Bharatiya Janata Party, which is in power in the Union government and thus in direct charge of the ED.
According to sources, the law department, in its note, says 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.
The department says that the proposed bill violates Article 16 of the Constitution.
The personnel department will now send the bill to the Governor for approval and send the same to the Centre for placing it in the Ninth Schedule of the Constitution.
Accirding to sources, the department has cited several Supreme Court judgements, including A. V. S. Narasimha Rao And Others vs The State Of Andhra Pradesh, Chebrolu Leela Prasad Rao vs State Of A.P and Kailash Chand Sharma vs State Of Rajasthan to buttress its opinion.
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.
However, the apex court has also set aside Parliament’s sweeping power to make ‘any law’ as regards residential requirements.
Moreover, 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.
