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5. After this Court rendered the decision on 18.12.1998, the Government issued a fresh notification vide GOMs. No. 3 dated 10.1.2000 effectively providing for 100% reservation in respect of appointment to the posts of teachers in the scheduled areas. The tribunal set aside the GOMs. Aggrieved thereby, writ petitions were filed in the High Court, a 3­Judge Bench by majority upheld the validity of G.O. Aggrieved by the same, the appeals have been preferred.

6. The majority view opined that historically scheduled areas were treated specially, and affirmative action taken was in the constitutional spirit. The notification was a step for increasing literacy in the scheduled areas and also aimed at providing the availability of teachers in every school in the scheduled areas. 100% reservation can be sustained on the ground that it was based on intelligible differentia, and the classification has nexus with the object sought to be achieved. The G.O. became necessary considering the phenomenal absenteeism of the teachers in the schools situated in the scheduled areas and was a step in aid to promote educational developments of tribals. In extraordinary situations, reservation can exceed 50%. The Governor possessed the power to issue the impugned notification under Schedule V, para 5(1) of the Constitution. The same overrides all other provisions of the Constitution, including Part III of the Constitution of India.

15. Learned counsel for the appellants further argued that providing 100% reservation is not permissible because of the catena of decisions rendered by this Court, to be referred later. Learned counsel vehemently argued that it is an unfortunate reality that the law­ makers are resorting to reservations on political basis catering to vote­ bank, thereby ignoring the constitutional mandate to which they owe allegiance. The reservation so provided is against the wishes of the founding fathers of the Constitution. The reason employed of chronic absenteeism in the schools, could not have been made the fulcrum justifying 100% reservation. Merit has been ignored and whittled down. The noble profession of teaching cannot be demeaned. There cannot be a compromise with the standard of education in the garb of cent percent reservation, and merit is a casualty. It tantamounts to reverse discrimination. It cannot be said to be a case of classification, but it is a case of reservation. It is highly unfair and unreasonable action. The Constitution of India does not permit 100% reservation in respect of any particular class or category to the total exclusion of others. Reservation set out under Article 16 should not exceed the limit of 50%.

50. The A.P. Regulation of Reservation and Appointment to Public Services Act, 1997, deals with reservation in the State in the field of public services. G.O. Ms. No.3 of 2000 did not amend the said Act. The provisions of the other Acts mentioned in the notification did not deal with the extent of reservation. Sections 78 and 79 of the A.P. Education Act, 1982 and Sections 169, 195, and 268 of the A.P. Panchayati Raj Act, 1994, are not related to reservation. The rules were framed under the proviso to Article 309. They were not framed under the main provision by the legislature. The Governor in the exercise of power under Para 5(1) of Schedule V could have amended the Public Services Act, 1997, or direct it not to apply to Scheduled Areas. The creation of 100 per cent reservation had the effect of making a new law under Para 5(1) without reference to the Act of State or Central legislation. Independently of that power could not be exercised within the purview of Para 5(1) of Schedule V to the Constitution of India. Even otherwise, even if the Act of 1997 would have been modified by the Governor, 100% reservation could not have been provided.

90. The Governor is competent to issue an order which is not in conflict with the Presidential Order. The Governor issued the order when the Presidential Order was already in force in the entire State. The Governor could not have issued the order in derogation to the Presidential Order. In our opinion, 100 per cent reservation could not have been provided as that violates the Presidential Order. In Re: Question No.2: whether 100% reservation is permissible under the Constitution?

91. The Constitution has provided for justice – social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the Nation. The framers of the Constitution have taken great care and deliberation so that it reflects the high purpose and noble objectives. It aims at the formation of an egalitarian order, free from exploitation, the fundamental equality of humans and to provide support to the weaker sections of the society and wherefrom there is a disparity to make them equal by providing protective discrimination. The Constitution in the historic perspective leans in favour of providing equality and those aims sought to be achieved by the Constitution by giving special protection to the socially and economically backward classes by providing a protective umbrella for their social emancipation and providing them equal justice, ensuring the right of equality by providing helping hand to them by way of reservation measures. Article 14 guarantees equality before the law or the equal protection of the laws. Be it a matter of distribution of State largesse; the Government is obligated to follow the constitutionalism. State action cannot be arbitrary and discriminatory and cannot be guided by extraneous considerations, which is opposed to equality. The concept of equality is the antithesis of arbitrariness in action. There cannot be any legislation in violation of equality, which violates the basic concept of equality as enshrined in Part III of the Constitution. An administrative order has to be tested on the anvil of non­arbitrariness. Any action of the legislature, administrative or quasi­judicial, is open to challenge if it is in conflict with the Constitution or the Act and applicable general principles of law. The protective discrimination of persons residing in backward areas is permissible, as held in M.P. Oil Extraction & Anr. v. State of M.P. & Ors., (1997) 7 SCC 592. The industrial units were set up in backward areas at the instance of the Government. Special treatment was given to them for the supply of sal seeds at a concessional rate of royalty. It was held in the aforesaid decision that the distinction was reasonable.