JUDGMENT
P.S. Mishra, J.
1. The petitioners herein have prayed for a direction to the respondents to consider their respective cases for appointment on the posts of Assistant Teachers in elementary schools on preference over other candidates on the ground that they are children of the employees of the respondent-State, who died in harness. They have disclosed their respective qualifications and alleged that they, have to cater their family consisting of several members including minors and old ones which they are not able to provide with their gross income from all sources falling below Rs. 6,000/- per annum. They have pointed out that their fathers, who were Assistant Teachers and Headmasters in the elementary schools, died, except petitioner No. 9 whose mother was in Government service as a lady teacher, who died in harness.
2. A Government resolution contained in memo No. 12754 dated 12th July, 1977 was circulated to all concerned conveying that it had been decided to give preference for the
appointments in Class III and Class IV posts in different services of the State Government on compassionate grounds to the dependents of the Government servants who died in harness. The resolution spelt out the dependants who could be given such preference as wife, sons and unmarried daughters of the servants dying in harness and also that the Government had decided to give relaxation in upper age limit to such persons who qualified in this category. That the said Government resolution has held the field and has been reiterated by subsequent orders is not in dispute.
3. The petitioners have stated that as a follow up, since they all belonged to the category of the dependents of the Government servants who died in harness, a Committee consisting of the District Magistrate, District Development Officer and others entertained their applications and considered their cases for such appointments. The Committee recommended their names for appointments as Assistant Teachers in the elementary schools as their parents were servants in the Education Department. The selection, however, received a set back and the petitioners could not be appointed because the Director, Primary Education, took the stand that no untrained teacher could be appointed even on compassionate grounds. They have asserted that the Director, Primary Education’s letter dated 15-3-1988 (Annex-ure 2) has no application to the appointments on compassionate grounds and that the basic qualification having been satisfied, the petitioners have to be appointed as others have been appointed in preference to other candidates for the reason that their parent were servants of the State Government and died in harness.
4. The only return on the record is one filed by respondent No. 4. He has maintained
that-
(a) The Government’s decision to give preference to the dependents of the Government servants, who died in harness has got no binding effect;
(b) The petitioners names were returned as they did not fulfil the qualifications of
eligibility for appointment as teachers in
elementary schools; and
(c) They may be appointed in Class III Class IV posts in any service of the State of Bihar in accordance with their respective qualifications but not as teachers in the elementary schools.
5. Articles 14, 15 and 16 of the Constitution of India enjoin upon the State that it shall not deny to any person equality before the law or the equal protection of the law within the territory of India, shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them and that there shall be equality of opportunity for all citizens in matters relating to, employment or appointment to any office under the State. There are two exceptions to the rule of equality in Article 15, one for making any special provisions for women or children and the other for making any special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes; and three exceptions to the rule as to the equality of opportunity for all citizens in matters relating to employment or appointment- (i) Parliament’s power for making any law prescribing in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within a State or Union Territory with respect to any requirement as to residence within that State or Union territory prior to such employment or appointment; (ii) the States for making any special provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State; and (iii) for operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination. The guarantee as to the equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State has been further enforced by a provision
in clause (2) of Article 16 of the Constitution of India. On a strict view so, the Government circular extending a preference to the dependents of a Government servant, who died in harness, shall be hit by Articles 16 and 14 of the Constitution of India. That, it appears, was the view which this Court took in Sukhnandan Thakur v. The State of Bihar (AIR 1957 Pat 617). Sukhnandan Thakur’s case was decided by Ramaswami J. on a difference between Das, C.J. and Ahmad, J. (as he then was). Ramaswamy, J. has stated in his judgment-
“Articles 16(3), 16(4) and 16(5) are exceptions to Article 16(2) and Article 16(1). It is clear that in the present case there has been no discrimination of the kind mentioned in Article 16(2). But I think that Article 16(1) is much Wider in scope than Article 16(2) and that the items of discrimination expressly mentioned in Article 16(2) are not exhaustive. That was also the view taken both by the Chief Justice and Ahmad J., and I respectfully concur in that view. The question, therefore, still remains-whether the petitioner has been denied equality of opportunity under Article 16(1) because of the action taken in pursuance of that circular. It is manifest that equality of opportunity mentioned in Article 16(1) is not a mathematical equality.
It is equally manifest that Article 16(1) does not preclude the administrative authority from making a selection from numerous candidates before making appointments; but the selective test employed must be reasonable and not arbitrary. The selective test must be based upon some reasonable principle. Otherwise, the principle of equality of opportunity would be infringed. In my opinion no selective test can be reasonable unless there is some proximate connection between the selective test and the sufficient performance of the duties and obligations of the particular office. I must make it clear that the administrative authority has a wide range of discretion in making the appointment. The administrative authority may lay down qualifications for the office – qualifications not only of mental excellence but also of physical fitness, sense of discipline, moral integrity and
loyalty to the State. In the case of technical appointments the administrative authorities may further require evidence of technical qualification and standard In the present case, the question arises with regard to the appointment of Supply Inspector. I find it difficult to understand how the circumstance that a candidate is a political sufferer or “displaced person” has any material relation or bearing on the efficiency or proper per-formance of his duties as a Supply Inspector.”
6. Minority view or the view of dissent, however, of Das, C. J. on the subject is expressed in the following words-
“It is worthy of note that clause (1) of Article 16 is expressed in ‘terms similar to Article 14. Both are general statements of fundamental rights; under Article 14 reasonable classification is permissible and, in my opinion, under clause (1) of Article 16 a reasonable selective principle can be adopted by the State Government. The position, however, will be different if a discrimination is made on a ground on which no discrimination can be made, and this is mentioned in clause (2) of Article 16 of the Constitution………….
If I had held the view that the classification of displaced persons and political sufferers was arbitrary and unreasonable, then it would have been my duty to issue an appropriate writ in favour of the petitioner, though I do not think that the appropriate writ in such a case would be a writ of certiorari….”……..”
7. Anything arbitrary or discriminatory done by the State in the name of enforcement or application of any law or in respect of employment or appointment to any office under a State shall ordinarily be in the teeth of Articles 14 and 16(1) and (2) of the Constitution of India, except the exceptions enumerated in Articles 15(3) and (4) and Articles 16(3), (4) and (5). The rule of equality, however, applied to unequals may destroy the very object for which it has been engrafted in the Constitution. Unequals shall always stand in different classes. Equality shall be the rule for those who stand together. A candid evaluation how and when a classification shall be justifiable and even if there is some element of discrimination, unless it is destructive of the rule of equality, it may not be in the teeth of Arts. 14 and 16(1) and (2) of the Constitution, has been made. In State of Punjab v. Hira Lal (AIR 1971 SC 1777) and again in Ramesh Prasad Singh v. State of Bihar (AIR 1978 SC 327): 1978 Lab IC 173. Considering whether while laying down standards of eligibility there could by prescriptions for University distribution of seats or not in D. N. Chanchala v. State of Mysore (AIR 1971 SC 1762), the Supreme Court has said-
“……………. A provision laying down such
sources is strictly speaking not a reservation. It is not a reservation as understood by Article 15 against which objection can be taken on the ground that it is excessive. The reservation, as contemplated by Article 15, is the one which is made under Rule 5. Under that Rule, 15% reservation is for persons belonging to the Scheduled castes, 3% for Scheduled Tribes and 30% for socially and educationally backward classes, that is to say, 48% in all against 690 available seats after deducting 60 seats set apart under Rule 4. But, setting apart 15 seats under Rule 4(g) for candidates who take family planning programme does not constitute a reservation as any one of the lady candidates can take up that programme…..
No materials have been placed before us which would show that in the circumstances prevailing in Mysore State reservation made under Rule 5 is unreasonably excessive. Setting apart 60 seats under Rule 4 is, already stated, not a reservation but laying down sources for selection necessitated by certain overriding considerations, such as obligations towards those who serve the interests of the country’s security, certain reciprocal obligations and the like. The reservation under Rule 5, though apparently appearing on the high side, not having been shown an unreasonably excessive, the contention in regard to it must fail.”
8-9. The Supreme Court has, thus, held (at page 1775) :-
“Once the power to lay down classifications or categories of persons from whom admission is to be given is granted, the only question which would remain for consideration would be whether such categorisation has an intelligible criteria and whether it has a reasoanble relation with the object for which the rules for admission are made.,………….”
The Court upheld the classifications and categorisation of persons having recognised as a source, children of political sufferers and of defence personnel and ex-defence personnel. In Ramesh Prasad’s case (supra), the Supreme Court has said-
“…………..The guarantee of equality does
not imply that the same rules should be made applicable to all persons in spite of differences in their circumstances and conditions…………
It is also well recognised that although Articles 14 and 16 of the Constitution forbid, reasonable classification and equality of opportunity in matters of promotion means equality between the members of the same class of employees and not equality between the members of separate and independent classes……….”
10. A Bench of this Court in Deota Nath Tiwari v. State of Bihar (1989 PUR 580) has said-
“………….it is always open to the State
Government to treat a group of persons as a separate class for the purpose of any special treatment including in matters of appointment. Any such classification shall not be violative of Arts. 14 and 16 of the Constitution if they really belong to a class by themselves………,”
11. Clause (2) of Article 16 of the Constitution, however, extends bar upon discrimination on grounds of religion, race, caste, sex, descent, place of birth, residence or any of them. Unless falling in the exceptions enumerated in clauses (3) and (4) of Article 15 and (3) to (5) of Article 16 only because some one was born at a particular place or his parents stood above others cannot be treated as a class and employed or appointed to any office under the State. Thus, any preferential right to appointment to the children or wards of certain section of employees or reservation in
any service under the State for any section of the people shall be contrary to Article 16 of the Constitution.
12. In Yogendra Pal Singh v. Union of India (AIR 1987 SC 1015) a rule which provided that sons and near relatives of persons who had done good service in the Punjab Police or in the Army would have preference over other candidates for police employment has been held to be contrary to Articles 16 of the Constitution. The Court has said (at page 1023)-
“We are of opinion that the claim made by appellants for the relxation of the Rules in their cases only because they happen to be the wards or children or relatives of the police officers has got to the negatived sinice their claim is based on ‘descent’ only and others will thereby be discriminated against as they do not happen to be the sons of police officer. Any preference shown in the matter of public employment on the grounds of descent only , has to be declared as unconstitutional………”
13. The impugned circular, however, is not a bald preference to the dependents of the employees of the State Government. It has not gone to the descent of the persons preferred for appointment. It has taken notice of a sudden demise resulting in cessation of source which earned bread for them. It has emphasised that those who fall in an income group below Rs. 6,000/- per year and lost their bread earner should be preferred. It is not a general concession to all the dependents of the deceased employees. It is confined to the selection to one to compensate the loss by giving employment to him. If one bread earner is there, another is not allowed to enter in the preference. The circular is, thus, one which has conferred a preferential right to appointment to the dependents of a deceased employee who died in harness by identifying the economic backwardness and also the loss which unless compensated shall force the family to go further down. The Supreme Court has also said in Yogendra Pal’s case that (at page 1022)-
“While it may be permissible to appoint a person who is the son of a police officer who
dies in service or who is incapacitated while rendering service in the Police Department, a provision which confers a preferential right to appointment on the children or wards or other relatives of the police officers either in service or retired merely because they happen to be the children or wards or other relatives of such police officers would be contrary to Article 16 of the Constitution………….”
14. The circular extends a preference which in my view is not contrary to Article 16(1) and (2) read with Article 14 of the Constitution of India.
15. I am aware that the circular referred to above is an executive instrument of the State and not a statutory provision. Still as Article 162 of the Constitution of India states, subject to the provisions of the Constitution executive power of State shall extend to the matters with respect to which the Legislature of the State has power to make law. The instrument in question, thus is a document in lieu of law. No law is in operation on the subject. Nothing has been shown to us from which it can be inferred that the circular has violated any other law, except Articles 14 and 16 of the Constitution. Since I am of the view that it does not violate Articles 14 and 16 of the Constitution, I have no hesitation in holding that the petitioners are entitled to be considered as dependents of their respective parents who died in harness if they are otherwise eligible for appointment in any class III or class IV posts in any service of the State of Bihar.
16. The respondents have pointed out that the petitioners have not been fulfilling one of the essential qualifications for appointment as teachers in the elementary schools of the State of Bihar, This, however, shall not discharge the respondents from the obligation of considering the cases of the petitioners for suitable posts available in class III and/or class IV for which they qualify. The petitioners, in my view, are entitled to a mandamus accordingly.
17. In the result, the application is allowed. Let a rule in the nature of mandamus issue to the respondents to consider the cases
of the petitioners for appointment as indicated above without any unreasonable delay, preferably within a period of four months. There shall, however, be no order as to costs.
B. K. Roy, J.
18. In agree.