JUDGMENT
S. Ravindra Bhat, J.
Page 1313
1. The petitioners, in these proceedings under Article 226 of the Constitution of India, seek a quashing of a condition, contained in an advertisement/ notification inviting applications for the post of Primary Teachers, on contract basis, issued by the respondent, Municipal Corporation of Delhi (hereafter “MCD”).
2. The MCD issued an advertisement on 3rd August, 2005, inviting applications from amongst eligible candidates for the post of Primary teachers. The notification set out the qualifications, and other eligibility criteria. This included a condition that the applicant must be registered with an Employment Exchange in Delhi. The present petitioners impugn Note 8 in the advertisement.
3. The relevant portions of the notification issued by MCD are extracted below:
” MUNICIPAL CORPORATION OF DELHI
Engagement of Teachers in MCD on Contract Basis
Applications are invited from desirous candidates, who fulfilll the eligibility conditions Page 1314
stipulated in the Recruitment Regulations of the post concerned, for engagement as Teacher (Primary) General/Urdu/Bengali/Tamil/Nursery Teacher, Physical Education Teacher, Assistant Teacher (Music) and Assistant Teacher/(Drawing & Painting) on contract basis for a short period varying form one month to six months or till the select list is received from the DSSSB whichever is earlier, on a fixed monthly remuneration of Rs.5000/- Duly filled in application from in the prescribed format as given below along with attested copies if certificates/documents in support of educational qualifications & age should reach the office of DEO/AEO of the zone on or before 12.08.05 by 3.00 PM by registered post/speed post or in person. Candidates seeking reservation under the categories should submit a copy of the caste certificate, with the application form, issued by competent authority (in case of OBC candidate caste certificate should be issued by the Competent authority of GNCTD) on or before the last date of submission of application from candidates belonging to Orthopedic/visally disabled person (low vision only) and ex-servicemen category should also submit the requite certificate along with application form in support of their claim. A copy of valid registration certificate from the Employment Exchange of Delhi issued on or before the last date of submission of application from should also be enclosed with the application form. Experience certificate wherever require should be enclosed with the application form.
* * * * * * * * PRIMARY TEACHER (Gen/Urdu/Tamil/Bengali) Qualifications : (a) (i) Higher Secondary pass of a recognized Board/University with an elective subject in the required language at the matric level. (ii)Two years Teacher Training Certificate from the recognized institution. Or (b) (i) Intermediate or equivalent form recognized Board/University with an elective subject in the required language at the matric level. (ii)One year teachers Traning Certificate from a recognized institution. Note :- 1.Certificate should have studied Hindi/Tamil/Bengali/Urdu at matric or higher level in the case of primary Teacher (General/Tamil/Bengali/Urdu) respectively. 2.Candidates holding B.EI. Ed degree can also apply. 3.Candidates holding only B.Ed degree are not eligible. (Nursery Teacher) Essential Qualification : (a) (i) Higher Secondary School certificate or equivalent. (ii)Nursery Teacher Training Certificate from a recognized institutionor equivalent. Desirable : i)Knowledge of Hindi (ii) Experience as a Nursery Teacher. Page 1315 Physical Education Teacher (Essential Qualification) : i)Higher Secondary School Certificate of a recognized University/ Board or equivalent. ii)Certificate in Physical Education from a recognized institution or equivalent. iii)2 years practical experience of producing and presenting programme or imparting training in vocal and instrumental music. * * * * * * * * * Note: 1.The candidates so engaged on contract basis shall not claim for regular appointment in the MCD . For these vacancies requisition has already been sent to Delhi Subordinate Services Selection Board. This is a stop gap arrangement . 2. The candidates so engaged on contract basis shall not file any court case regarding salary and regularization. * * * * * * * * * * 7. Zone wise select list will be prepared on the basis of academic qualifications, professional qualifications and interview.
8. Selection will be done out of trained candidates from recognized institutes from Delhi and other states on interview and performance in academic and professional qualifications basis provided they have passed their 10th & 12th examinations from Delhi. Further priority will be given to the candidates of Delhi.”
4.All the petitioners are aggrieved by Note 8, which confines consideration of candidates, who are qualified, but completed their 10th and 12th Examinations from Delhi. These petitioners have completed their 10th and/or 12th Examinations from outside Delhi; some of them are Delhi candidates, who finished their schooling from outside; others are candidates hailing from different regions, but living in Delhi, some have completed their teachers(tm) training qualifications from Delhi; all of them allege that they are registered with the Employment Exchanges in Delhi. The impugned restrictive condition has been attacked as discriminatory and arbitrary.
5. Note 8 is challenged as amounting to an unreasonable classification as it ignores, and completely excludes candidates who possess the prescribed qualifications and are registered with the Employment Exchange at Delhi, but have completed their schooling from outside Delhi. It is contended that the recruitment process followed by the respondents in the past many years for appointment on contract basis had been that any one who is registered with the employment exchange at Delhi and possessing the requisite qualifications to be appointed as a primary teacher, either qualified from DIET or any other equivalent qualification recognized by National Council for Teacher Education (in short NCTE) may apply for the post of Primary Teachers in the Schools of Municipal Corporation of Delhi. However, in the present advertisement, which is under challenge before this Court, the respondents abruptly included a condition, which has no rational nexus with its object, therefore, the same deserves to be set aside. It is alleged that the basis of appointment for the post of teacher is diploma in Elementary Education and not 10th and 12th therefore the condition Page 1316 imposed by the MCD is irrational; if the Diploma in Elementary Education is relevant for the appointment to the post of teachers, then, insisting that an individual has to be 10 & 12th from Delhi is not sustainable. It is further averred that Delhi being a metropolitan city, equal opportunity should be given to the qualified candidates on the basis of merit for contractual appointment and there should not be any bar for candidates who have done their 10th and 12th outside Delhi. Selection being made on merit, a residence based criteria has no co-relation to the object of the recruitment process. It is averred that whether a candidate passed 10th or 12th from one particular state or the other, when both qualifications are recognized on equal, a further classification on the basis of geographical location of the institution from where the candidate finishes his schooling, is contrary to Article 14 of the Constitution. The categorization of the candidates in two classes, one who have passed their 10th and 12th from Delhi and others who have passed the same from other states is challenged as arbitrary and discriminatory and does not pass the test of permissible classification. The petitioners also rely on Article 16 of the Constitution of India to say that all citizens have equal opportunity in matters of public employment.
6. Notice was issued in some of the matters, and the petitioners who had initially approached the court were permitted to apply and be considered by the MCD, in the recruitment process. Later, many more petitioners approached the court, and the interim orders were broadened to encompass those who did not, or could not approach the court; the MCD was directed to entertain and consider the applications of all those who approached MCD on or by 2nd September, 2005, in one Zone, since the interview/ selection process had been completed in all other zones. With consent of parties, the matter was set down for hearing on a working Saturday, viz 10th September, 2005. Hearing on behalf of MCD was adjourned at its request; ultimately, the matter was heard, and with consent of parties, WP 13051-76/05 was treated as the lead case, and MCD filed its return. The MCD filed an additional affidavit in the proceedings, indicating the total number of vacancies involved in the recruitment process, and the number of persons whose names were included in the select list, etc.
7. The MCD states, in its counter affidavit, states that by Resolution No.449 dated 24th November 2004 it resolved as follows :
“Whereas, Municipal Corporation of Delhi vide its Resolution No. 835 dated 5/3/2002, approved the appointment of teachers on contract and merit basis.
Whereas appointments are made to the vacant posts of teachers on contract basis for a fixed period due to the inability of Delhi Subordinate Staff Selection Board in sending the list of selected candidates in time.
Whereas presently these vacant posts are to be filed up on contract basis, therefore, it would in the public interest that approval for selection of trained candidates from the recognized institutes from Delhi and other states on the basis of interviews be accorded provided that priority should be given to those candidates who have passed their 10th and 12tth class examination from Delhi.
Therefore, this meeting of Municipal Corporation of Delhi resolves that after effecting amendment in the Resolution No. 835 dated 5.3.2002, Page 1317 approval be accorded for selection of trained candidates from recognised institutes from Delhi and other States on interview basis provided they have passed their 10th and 12th class examination from Delhi.
It is further resolved that priority be given to the candidates of Delhi.
Further resolved that at present and future out of the total number of teachers to be engaged on contract basis, 10% special teachers (Physical Teacher, Music Teacher and Art Teacher in the ratio of 5:3:2) respectively be also engaged on contract basis.
The Resolution was carried.”
8. The classification upon which the exclusion/ restrictive condition of having to qualify in 10th or 12th standard, from Delhi, is sought to be justified on the basis of the resolution. The Corporation has taken a policy decision to give preference to those who completed their 10th and 12th standard from Delhi. Being a policy decision, arrived at in larger public interest, no exception can be taken to it.
9. Mr. Alok Sangwan, appearing for the petitioners, submitted that the impugned condition violates Articles 14 and 16 of the Constitution of India. Once the essential qualifications relatable to the post are prescribed, the superimposition of a condition that the selected candidate should have graduated his 10th and 12th from Delhi is impermissible in law. It amounts to an irrational, geographical criteria, bearing no nexus with the object of the recruitment. Learned counsel also submitted that the condition acts hostilely against all candidates who hold recognized qualifications, both in respect of schooling, as well as in relation to the qualification of a diploma, in teachers training, but were “outsiders” in the sense that they completed schooling from other places. It was submitted that all the petitioners fulfill the requirements spelt out by the National Council for Teacher Education; therefore, the insistence that a candidate should have finished his 10th and 12th standard from Delhi is arbitrary.
10. Learned counsel for the petitioner relied upon the decision reported as Kailash Chand Sharma etc., etc., v. State of Rajasthan and Ors. to submit that similar criteria, based purely on geographical or residential considerations, has been declared unconstitutional. He also relied upon the decision of this court in Kavita & Others Vs. M.C.D., 2000 III AD (Delhi) 1 to submit that on another occasion, when the MCD had sought to impose a criteria of candidates having qualifications only from one category of institutions, whereas other categories too were recognized, such classification was held as discriminatory, and violative of Article 14 of the Constitution of India.
11. Mr. V. Sudheer, learned counsel for the petitioner, besides reiterating the above submissions, also stated that only Parliament could legislate the conditions, under which, and the category of posts, for which, residence based qualifications could be legitimately imposed, by virtue of Aritlce 16(3) of the Constitution of India. This meant that all other authorities, including State legislatures, were denuded the right to make reservations and prescribe residence based employment conditions.
Page 1318
12. Other counsel appearing on behalf of the petitioners adopted the submissions of Mr.Sangwan, and Mr. Sudheer. It was also urged that once the qualifications were prescribed specifically, and the MCD had also articulated its policy to call only those registered with the Employment Exchanges in Delhi, the further insistence on the impugned condition was onerous, oppressive, and hence arbitrary. It was also attacked on the ground of lacking in nexus with the object of the recruitment, namely ensuring that the best, and most merited candidates were appointed.
13. Mr. Vinay Sabharwal, learned counsel appearing for the MCD, defended the criteria, by stating that it was based on policy considerations; the corporation had resolved to impose such a condition. The policy was not impugned by the petitioners; therefore, the condition in the advertisement could not be faulted. It was also submitted that the recruitment itself was for contract teachers, on the express condition that they were to yield place to regularly recruited candidates. Hence, the imposition of such a condition in respect of an extremely short-term employment could not be called discriminatory. The arrangement of engaging contract teachers was to tide over an emergent situation, so that the larger public interest of having teachers was not adversely affected.
14. Learned counsel for the respondents submitted that the condition was not an impermissible classification, but an instance of institutional preference, which is permissible under the Constitution of India. He relied upon the decision of the Constitution bench of the Supreme Court in Saurabh Chaudhari “vs- Union of India 2003(11) SCC 246. No other contentions were raised on behalf of the parties.
15. The only issue which arises for consideration in these proceedings, is whether the impugned condition, Note 8 violates the equality clause. The condition lays down that each selected candidate:
a)should possess the requisite teachers(tm) training qualification from Delhi or outside;
b)would be assessed on the basis of his performance in interview and qualifications;
c)should have passed his 10th and 12th standard examination from Delhi
These are in addition to the conditions of eligibility spelt out in the advertisement, which stipulate the basic educational qualifications and that each candidate should be registered with Employment Exchanges in Delhi. Over and above the three conditions mentioned, the last sentence of Note 8 states that priority would be given to Delhi candidates.
16. Articles 14 and 16 have been interpreted to permit reasonable classification. Article 16(2) forbids discrimination on the ground, inter alia, of residence, in matters of public employment. This bar is to an extent lifted, by Article 16(3), which enables the parliament to make a law prescribing a residential requirement within the State in regard to a classes of employment or appointment to an office under the State. Residence based classification, in matters of public employment, is therefore, clearly discriminatory, unless it has the sanction of Parliament, under Aritcle Page 1319 16(3). The issue is whether the impugned condition is a residential condition, falling within the prohibited zone, or a permissible classification, under Article 14 and 16(1).
17. The issue of giving weightage to, or reserving posts, in favor of candidates belonging to zones or regions, or areas, in matters of public employment under the State, has often been considered by the Supreme Court. ( Ref Pradip Tandon v. State of UP ; State of Maharashtra v. Raj Kumar ; Govind A. Mane v. State of Maharashtra. ; and Kailash Chand Sharma etc., etc., v. State of Rajasthan and Ors. ). In Kailash Chand(tm)s case, the entire law was reviewed. It would be necessary to reproduce some of the passages from that judgment:
” 15.Article 16 which under clause (1) guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State reinforces that guarantee by prohibiting under Clause (2) discrimination on the grounds only of religion, race,caste, sex, descent, place of birth, residence or any of them. Be it noted that in the alied Article- 15, the word ‘residence’ is omitted from the opening clause prohibiting discrimination on specified grounds. Clauses (3) and (4) of Article 16 dilutes the rigour of Clause (2) by (i) conferring an enabling power on the parliament to make a law prescribing the residential requirement within the State in regard to a classes of employment or appointment to an office under the State and (ii) by enabling the State to make a provision for the reservation of appointments or posts in favor of any backward class of citizens which is not adequately represented in the services under the State. They newly introduced Clauses (4-A) and (4-B), apart from Clause (5) of Article 16 are the other provisions by which the embargo laid down in Article 16(2) in somewhat absolute terms is lifted to meet certain specific situations with a view to 16 (2) in somewhat absolute terms is lifted to meet certain specific situations with a view to promote the overall objective underlying the Article. Here, we should make note of two things:firstly, discrimination only on the ground, of residence (or place of birth) in so far 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.
* * * * * * * * Page 1320
22. It is not necessary for us to refer is extenso to various other decision of this Court dealing with the scope of Article 15(1) and 15(4) vis a vis reservations based on residence within a University or other local area for the purpose of admission to professional colleges. A summary of those decisions has been given by Bhagwati. J, in the passage extracted (supra). The requirement of residence and education within the university area for allocation of seats in medical colleges affiliated to that university was upheld on special considerations noticed in that judgment.
23.We may, however, advert to one recent decision wherein the view taken in Rajendra’s case (supra) was reiterated. ‘In Govind A. Mane v. State of Maharashtra. it was laid down :
“Since it is not disputed by the respondents that for the purpose of admission to B.Ed course, seats were distributed disctrictwise without indicating any material to show the nexus between such distribution and the object sought to be achieved, it would be violative of Article 14 of the Constitution ”
24.The lack of material to establish nexus between the geographical classification and the object sought to be achieved thereby was thus held to be violative of Article 14.
25.The question which fell for consideration of this court whether the action of the state in Pradip Tandon v. State of UP was in reserving certain percentage of seats available in medical colleges in favor of candidates from rural areas, hill areas and Uttarakhand was justified ? The reservation was sought to be justified from the stand point of Article 15(4). Repelling the contention, Ray, C.J. Speaking for a three-judge Bench observed that “the Constitution does not enable the State to bring socially and educationally backward areas within the protection of Article 15(4)”. It was pointed out that the accent in Article 15(4) is on classes of citizens :
“The expression “classes of citizens” indicates a homogeneous section of the people who are grouped together because of certain likenesses and common traits and who are identifiable by some common attributes. The homogeneity of the class of citizens social and education backwardness. Neither caste nor religion nor place of birth will be the uniform element of common attributes to make them a class of citizens.:
26.Eschewing the test of poverty as the determining factor of social backwardness this Court made the following pertinent observations :
“… A division between the population of our country on the ground of poverty that the people in the urban areas are not poor and that people in the rural areas are poor is neither supported by facts nor by a division between the urban people on the hand and the rural people on the other that the rural people are socially and educationally backward, some may be socially backward, there may be few who are both socially and educationally backward, but it cannot be said that all citizens residing in rural areas are socially and educationally backward.
Eighty per cent of the population in the state of Uttar Pradesh in rural areas cannot be said to be a homogeneous class by itself. Page 1321 They are not of the same kind. They are not of the same kind. Their occupation is difference. Their standards are different. Their lives are different. Population cannot be a class by itself. Rural element does no make, it a class. To suggest that the rural areas are socially and educationally backward is to have reservation for the majority of the State.”
it was further observed :
“The reservation for rural areas canot be sustained on the ground that the rural areas represent socially and educationally backward classes of citizens. This reservation appears to be made for majority population of the State. Eighty per cent of the population of the State cannot be a homogeneous class. Poverty in rural areas cannot be the basis of classification to support reservation for rural areas”.
* * * * * *
29. Before examining the further pleas in support of the impugned action taken by the State it would be apposite to refer to the decision in state or Maharashtra v. Raj Kumar, on which reliance has been placed by the High Court and reference has been made in the course of arguments before us. In that case a rule was made by the State of Maharashtra that a candidate in order to be treated as a rural candidate must have passed SSC Examination which is held from a village or a town having only ‘C’ type municipality. The object of the rule, as pointed out by this Court, was to appoint candidates having full knowledge of rural life and its problems so that they would be more suitable for working as officers in rural areas. The rule was struck down on the ground that there was no nexus between classification made and the object sought to be achieved because “as the rule stands any person who may not have lived in a village at all can appear for SSC examination from a village and yet become eligible for selection”. The rule was held to be violative of Article 14 and 16. Another point discussed by the Court was about the propriety of giving bonus marks for the rural candidates and the Court held thus :
“The rules also provide that viva-voce Board would put relevant to judge the suitability of candidate for working in rural areas and to test whether or not they have sufficient knowledge of rural problems, and this doubt amounts to a sufficient safeguard to ascertain the ability of the candidate regarding his knowledge about the affairs of the village. In such a situation there was absolutely no occasion for making an express provision for giving weightage which would virtually convert merit into demerit and demerit into merit and would be per se violative of Article 14 of the Constitution as being an impermissible classification. The rule of weightage as applied in this case is manifestly and wholly arbitrary and cannot be sustained.”
* * * * * * * * * *
42. The above discussion leads us to the conclusion that the award of bonus marks to the residents of the district and residents of the rural areas of the district amounts to impermissible discrimination. There is no rational basis for such preferential treatment on the material available before us. The ostensible reasons put forward to distinguish the citizens Page 1322 residing in the State are either non-existent or irrelevant and they have no nexus with the object sought to be achieved namely, spread of education at primary level. The offending part of Circular has the effect of diluting merit, without in any way promoting the objective. The impugned circular dated 10.06.1998 in so far as the award of bonus marks is concerned, has been rightly declared to be illegal and unconstitutional by the High Court.
43. One more serious infirmity in the impugned circular is that it does not spell out any criteria or indicia for determining whether the applicant is a resident of rural area. Everything is left bald with the potential of giving rise to varying interpretations thereby defeating the apparent objective of the rule. On matters such as duration of residence, place of schooling etc., there are bound to be controversies. The authorities, who are competent to issue residential certificates, are left to apply the criteria according to their thinking, which can by no means be uniform. The decision in the State of Maharashtra v. Raj Kumar (AIR SC 1301) is illustrative of the problem created by vauge or irrelevant criteria. In that case a rule was made by the State of Maharashtra that a candidate, will be considered a rural candidate if he had passed SCC Examination held from a village or a town having only ‘C’ type municipality. The object of the rule, as noticed by this Court, was to appoint candidates having full knowledge of rural life so that they would be more suitable for working as officers in rural areas. The rule was struck down on the ground that thee was no nexus between classification made and the object sought to be achieved because “as the rule stands any person who may not have lived in a village at all can appear for SSC Examination from a village and yet become eligible for selection”. The rule was held to be violative of Article 14 and 16. when no guidance at all is discernible from the impugned circular as to the identification of the residence of the applicants especially having regard to the indefinite nature of the concept of residence, the provision giving the benefit of bonus marks to the rural residents will fall foul of Article 14.”
18. It is evident that the court was concerned with the validity of a measure that gave advantage to rural candidates, in recruitment to posts under the State. The previous decisions too dealt with similar regulations. The Supreme Court held that such advantages or preferences were discriminatory, since they did not disclose any rational criteria; nor did the state, in the absence of any scientific or systematic study disclose the nexus with the object sought to be achieved.
19. Closer home, in a judgment reported as Ashik Abbas and Ors. v. Govt. of National Capital Territory of Delhi and Other 1999 V AD. (Delhi) 74) this court was called upon to decide the vires of a measure that mandated recruitment to be confined to candidates possessing qualifications from one category of institutions. The court held as follows:
“16. There appears to be no reasonable classification based on any rationale or intelligible differentia, whereby students who passed a particular course from DIET are to be considered for appointment to the post of Primary Teacher of MCD an other stu- dents who passed from other institutes, although duly recognised, are to be excluded. The appointment with MCD Page 1323 is appointment to a Public Office and MCD has to treat equally in the matter of public appointment of all such persons. Whether a candidates passes a particular course from one institute or the other insti- tute, when both are recognised is on equal footing and pertains to same class. Article 14 of the Constitution forbids class legislation. The categorisation of the candidates in two classes, one who are passing the course from DIET and other passing the course from other institutes is clearly arbitrary and discrimina- tory and does not pass the test or permissible classification. It is now well settled that to pass the test of permissible classi- fication two conditions must be fulfillled, namely: (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from other left out of the Group and (ii), that the classifica- tion must have a rational relation to the object sought to be achieved by the statute in question. Candidates of both the categories form one class for the purposes of seeking appointment and they have right to be considered for the same. In fact, considering the candidates who passed a particular course from DIET and excluding those who passed from other recognised insti- tutions amounts to irrational classification and also amounts to depriving such candidates, who passes their course from insti- tutes other than DIET, right to be considered for public appoint- ment and is, therefore, violative of Article 16 of the Constitution as well.”
This reasoning was followed in a subsequent judgment, Kavita & Others v. M.C.D., 2000 III AD (Delhi)1.
20. In this case, the MCD has not justified the classification on any basis, except that it is a policy measure, amounting to institutional preference. Counsel had relied upon Suarabh Chaudhri(tm)s case (supra) in that regard. In my opinion, the decision cannot be used as an authority in matters of public employment. This is evident from the following passage, where the difference between Articles 15 and 16 was noticed:
“29. The first question that arises for consideration is, whether the reservation on the basis of domicile is impermissible in terms of clause (1) of Article 15 of the Constitution of India. The term “place of birth” occurs in clause (1) of Article 15 but not “domicile”. If a comparison is made between Article 15(1) and Article 16(2) of the Constitution of India, it would appear that whereas the former refers to “place of birth” alone, the latter refers to both “domicile” and “residence” apart from place of birth. A distinction, therefore, has been made by the makers of the Constitution themselves to the effect that the expression “place of birth” is not synonymous to the expression “domicile” and they reflect two different concepts. It may be true, as has been pointed out by Shri Salve and pursued by Mr Nariman, that both the expressions appeared to be synonymous to some of the members of the Constituent Assembly but the same, in our opinion, cannot be a guiding factor. In D.P. Joshi case4 a Constitution Bench held so in no uncertain terms.
30. This Bench is bound by the said decision.”
21. The plea of institutional preference cannot also be taken, to justify a reservation, in public employment, as in the present case. Institutional Page 1324 preference, as understood, is a term used in the context of admissions to educational, often, professional educational institutions. It implies a preference to the students of a particular state. The Supreme Court has recognized this preference, as a constitutionally permissible mechanism. However, “institutional preference” cannot be used in public employment. If the MCD were of the view that all schools and institutions in Delhi offering 10th and 12th standard are a separate and distinct class, and therefore constitute a separate category, it should have supported that conclusion on the basis of objective material. It is not as if all such institutions are homogenous; all kinds of schools, affiliated to different Boards (CBSE, ICSE, National Open Schools, etc) exist in Delhi. There are private schools, (both aided and unaided); Schools managed by autonomous bodies, the MCD, the Government of NCT, etc. Hence, the mere description of schools on the basis of their location does not set them apart from schools in the rest of the country. The plea of institutional preference here, therefore, cannot stand scrutiny as a distinct class or category, justifying a valid classification.
22. The requirement of a selected candidate to have “graduated” as it were from a school in Delhi, is also not rational. The eligibility criteria, admittedly, is 10th and 12th standard and teachers(tm) training certificate/ diploma. This is in line with the qualifications prescribed by the National Council for Teachers Education (NCTE). The requirement of teachers(tm) training qualifications, in the impugned advertisement, even states that the candidates(tm) qualification should be from Delhi or outside. There is an added condition of the candidate having to be registered in an Employment Exchange in Delhi. However, in the case of 10th and 12th standard, there is insistence for having completed it from Delhi. There is no attempt to sustain the differentia, particularly when the qualifications and all other eligibility criteria, save the impugned note requiring schooling from Delhi, are the same.
23. There is yet another reason why Note 8 cannot be sustained. Even if it were to be assumed, that it is based upon an intelligible differentia, there is no attempt to show how that has a rational nexus with the object sought to be achieved, viz appointment of most suitable candidates to the post. The rule, one of exclusion, on the contrary works to eliminate potentially merited candidates, who might possess better academic qualifications and also might perform well in the interview as per the MCD(tm)S yardsticks. Hence, the geographical basis of the qualification has no nexus with the object of the recruitment process; it even defeats the object.
24. Long ago, in the decision reported as Pradeep Jain v. Union of India, it was held as follows:
“What is fundamental, as an enduring value of our polity, is guarantee to each of equal opportunity to unfold the full potential of his personality. Anyone anywhere, humble or high, agrestic or urban, man or woman, whatever be his language or religion, place of birth or residence, is entitled to be afforded equal chance for admission to any secular Page 1325 educational course for cultural growth, training facility, speciality or employment. It would run counter to the basic principle of equality before the law and equal protection of the law if a citizen by reason of his residence in State A, which ordinarily in the commonality of cases, would be the result of his birth in a place situate within that State, should have opportunity for education or advancement which is denied to another citizen because he happens to be resident in State B. It is axiomatic that talent is not the monopoly of the residents of any particular State; it is more or less evenly distributed and given proper opportunity and environment, everyone has a prospect of rising to the peak. What is necessary is equality of opportunity and that cannot be made dependent upon where a citizen resides. If every citizen is afforded equal opportunity, genetically and environmentally, to develop his potential, he will be able in his own way to manifest his faculties fully leading to all round improvement in excellence. The philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of our founding faith and constitutional creed. The effort must, therefore, always be to select the best and most meritorious.”
25. India is one country with one Constitution, which outlines equal rights, and assures equal opportunities to all. Every citizen is a citizen of the whole country. We are not a confederation of city-states, each of which fiercely guard their independent status, and jealously protect their citizens(tm) local rights. Conceived as the quintessentially Indian metropolis, a microcosm reflecting aspirations of the people of India, Delhi attracts talent from all over the country, and is the beneficiary of vast Union expenditure. Protectionism is not a known trait characterizing the national capital.
26. The non-discrminatory rights specifically engrafted under Article 16(2) have an underlying purpose; in matters of public employment, differentiation, on certain grounds, are taboo. Every citizen has the fundamental right to move throughout the territory of India, and set up residence. Rabindranath Tagore, in his oft quoted passage from Gitanjali, yearned for a land
Where the mind is without fear and the head held high;
Where knowledge is free;
Where the world is not broken into fragments
By narrow domestic walls..
27. The impugned note is but a masked residential requirement, which falls foul of Article 16(2) to the extent it insists that the student must have completed 10th and 12th standard from Delhi, thereby implying that for that duration, residence is deemed essential; it is also violative of Article 14 as not amounting to reasonable classification, as the MCD has not shown the basis of the differentia, and how it furthers the object of the recruitment process. In view of these findings, the impugned note cannot be sustained.
28. That brings me to the question of relief. As per the additional affidavit filed by the MCD, there were a total of 3150 vacancies, in all the posts. 2154 candidates were included in the select list (of them 562 were issued with appointment letters). 986 total vacancies are unfilled.
29. In the present case, the recruitment is on contract and emergent basis, Page 1326 to the post of Primary teachers, with the condition that the candidates selected and appointed would make way to those who are regularly appointed. The need to appoint contract teachers is to meet the exigencies of having to ensure trained teachers in the schools of MCD. Having regard to the admitted public purpose, It would not therefore, be appropriate to set aside the entire selection process. The facts in the additional affidavit show that there are sufficient vacancies, which can be filled. Therefore it would not be appropriate to disturb the select list. The MCD is therefore at liberty to fill the unfilled vacancies on the basis of the select list. Appointments made till date are, likewise are unaffected. The remaining, 986 or so vacancies, however shall be filled through a fresh recruitment process, in which the impugned note shall not be made a condition for appointment. The note is declared unconstitutional to that extent. The MCD shall call for and consider fresh applications from amongst all eligible candidates, including those who complete their 10th and 12th standard from schools outside Delhi. It is open to the petitioners as well as all other candidates who did not approach the court, or the MCD, and were otherwise eligible, but for the impugned Note, to apply in the fresh process.
30. The writ petitions are allowed to the extent indicated above. No costs. Order dusty.