{"id":249701,"date":"2002-07-30T00:00:00","date_gmt":"2002-07-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kailash-chand-sharma-vs-state-of-rajasthan-ors-on-30-july-2002"},"modified":"2017-03-15T02:46:00","modified_gmt":"2017-03-14T21:16:00","slug":"kailash-chand-sharma-vs-state-of-rajasthan-ors-on-30-july-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kailash-chand-sharma-vs-state-of-rajasthan-ors-on-30-july-2002","title":{"rendered":"Kailash Chand Sharma vs State Of Rajasthan & Ors on 30 July, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kailash Chand Sharma vs State Of Rajasthan & Ors on 30 July, 2002<\/div>\n
Author: P Reddi<\/div>\n
Bench: D.P. Mohapatra, P.Venkatarama Reddi.<\/div>\n
           CASE NO.:\nAppeal (civil) 4417  of  2002\n\n\n\nPETITIONER:\nKAILASH CHAND SHARMA\n\n\tVs.\n\nRESPONDENT:\nSTATE OF RAJASTHAN & ORS\n\nDATE OF JUDGMENT:\t30\/07\/2002\n\nBENCH:\nD.P. Mohapatra & P.Venkatarama Reddi.\n\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t(Arising out of S.L.P. No. 1824 of 2000).\n<\/p>\n
\t\t\t\tWith
\nCA Nos.4418-21, 4423, 4427-4429, 4431, 4432, 4437, 4438-39, 4434, 4443,
\n4444, 4445, 4446-47, 4449, 4450, 4451, 4452, 4453, 4454, 4455, 4456,
\n4457, 4458-60, 4461, 4462, 4463, 4464, 4465, 4466, 4435, 4436\/02  @
\nSLP  Nos. 10778-81\/2001, 10929, 14560-63\/2001, 15579, 4979, 5017-18,
\n5021, 20286, 20297, 20296, 20293-94, 20298, 11496, 11642, 11619, 11618,
\n11614, 20300, 11789, 11620, 12011-13, 11879, 20289, 12289, 20290,
\n11359, 20292  of 2001 and SLP  Nos.2297, 2503 of 2000 and  W.P.\t No.
\n542\/2000 and CA Nos.4440 & 4441-4442 @ SLP Nos. 23010, 23011-
\n12\/2001.\n<\/p>\n
P.Venkatarama Reddi, J.\n<\/p>\n
\tLeave to appeal granted.  Consequently, the appeals are taken on file
\nand being disposed of by this common Judgment.\n<\/p>\n
\tThe selections held and the consequential appointments made to the
\nposts of primary school teachers by the Zila Parishads of various districts in
\nthe State of Rajasthan during the year 1998-1999 have given rise to these
\nappeals.  The full Bench judgment of Rajasthan High Court dated
\n18.11.1999 in Kailash Chand Sharma (Petitioner in first of the appeals
\ncorresponding to SLP  No. 1824\/2000) Vs. State of Rajasthan  and
\nconnected Writ Petitions are under challenge in these appeals apart from the
\nDivision Bench Judgment in State of Rajasthan Vs. Naval Kishore Sharma.
\nThe full Bench followed its earlier judgment in Deepak Kumar Suthar Vs.
\nState of Rajasthan (W.P.  No. 1917\/1995) and disposed of the Writ
\nPetitions on the same terms as in the previous full Bench reference case.  At
\nthe outset, it may be stated that the judgment of the full Bench rendered on
\nOctober 21, 1999 in Deepak Kumar’s case (reported in 1999(2), RLR 692)
\nwas in relation to the selection of teachers Grade II and Grade III which was
\npursuant to the advertisement issued by the Director, Primary and Secondary
\nEducation during the year 1995.\t The said posts of teachers Grade II and
\nGrade III are borne in State cadre under the administrative control of
\nEducation Department of the State Government.  The second full Bench
\njudgment, as already noted, was in the context of selections to the posts of
\nteachers district-wise coming within the fold of respective Zila Parishads.  In
\nthe impugned judgment the full Bench, however, did not see any
\nimpediment in applying the ratio of the previous judgment.  The full Bench
\nobserved that “merely because  the employment relates to the Panchayats,
\nthat does not make any difference in the light of the law laid down in the full
\nBench judgment aforementioned”.\t What was called in question by the
\nunsuccessful candidates\t who filed their applications and appeared before
\nthe o.1 Selection Boards  was the award of bonus marks to the applicants
\nbelonging to the District and the rural areas of the district concerned.  The
\nfirst full Bench (in the case of Deepak Kumar Vs. State) held that award of
\nsuch bonus marks was unconstitutional and the relevant clause in the circular
\nproviding for bonus marks was void.  The learned Judges observed that “this
\nkind of weightage would give a complete go-bye to the merit of the
\ncandidates and would seriously affect the efficiency of
\nadministration\/teaching”.  The full Bench answered the reference holding
\nthat “any kind of weightage\/advantage in public employment in any State
\nservice is not permissible on the ground of place of birth or residence or on
\nthe ground of being a resident of urban area or rural area.”.  Having so
\ndeclared the law, the full Bench gave the following directions in the
\nconcluding para of the judgment :\n<\/p>\n
“Instead of sending the matter to the appropriate
\nbench, we think it proper to dispose of this petition
\nwith a direction that no relief can be granted to the
\npetitioners as they could not succeed to get the
\nplace in the merit list even by getting 10 bonus
\nmarks being residents of urban area, for which
\nthey are certainly not entitled.  More so, the
\npetitioners have not impleaded any person from
\nthe select list, not even the last selected candidate.
\nThus, no relief can be granted to them inspite of
\nthe fact that the appointments made in conformity
\nof the impugned Circular have not been in
\nconsonance with law.  However,\t we clarify that
\nany appointment made earlier shall not be affected
\nby this judgment and it would have prospective
\napplication”.\n<\/p>\n
\tIt is this decision that was followed by the full Bench in the impugned
\njudgment and the batch of  Writ Petitions were disposed of accordingly.
\nAgainst this judgment SLPs were filed by the original writ petitioners (six in
\nnumber) as well as the State Government and the Zila Parishad.
\n\tAfter the full Bench judgment one more batch of writ petitions came
\nto be disposed of by a learned single Judge of the High Court on 26.2.2001
\ndirecting a fresh merit list to be prepared in respect of the candidates who
\nwere not appointed on or before 21.10.1999 without regard to the bonus
\nmarks.\tAppeals against this judgment were filed by the State Government
\nand other authorities.\tThe Division Bench by its order dated 13.4.2001
\ndismissed those appeals.  Questioning the same,\t SLPs were filed by the
\nState as well as certain affected parties who were granted leave to appeal.
\n\tComing to the specific facts relevant to the present appeals, at the
\nthreshold, we should make a reference to the circular issued by the
\nDepartment of Rural Development and Panchayat Raj bearing the date
\n10.6.1998,  which deals with the subject of procedure to be followed for
\nappointment to the vacant posts of teachers during the years 1998-1999 by
\nway of direct recruitment.  This circular was issued in supercession of
\nearlier orders on the subject.\tIt is seen from the circular that 5847 posts
\nwere sanctioned by the Finance Department of the Government and the
\nappointments were to be made to the vacancies for which sanction was
\naccorded.  The Chief Executive Officers-cum-Secretaries of Zila Parishads
\nwere required to issue the advertisements by 15.6.1998 and to have them
\npublished in the newspapers by 20.6.1998.  According to the schedule given
\nin the circular, the process of issuing appointment orders was to be
\ncompleted by 14.8.1998.\t That it did not actually happen is a different
\nmatter.\t The circular which is quite comprehensive deals with various
\naspects.  We are only concerned with the following provisions in the circular
\nhaving a bearing on the determination of merit of the applicant\/candidate.  It
\nreads as follows :\n<\/p>\n
“This year, determination of merit has been
\namended and determination of merit will be done
\nas follows :-\n<\/p>\n
I.\tMarks for educational qualification :-<\/p>\n
\nS.No.\t\tQualification\t\t Weightage\n1.\tSecondary Examination\t\t50%\n2.\tSenior Secondary Examination\t20%\n3.\tS.T.C.\/B.Ed.\t\t\t\t30%\n\nII.\tFixation of Bonus marks for domiciles\n\nDomiciles of Rajasthan\t\t     - 10 marks\nResident of District\t\t   - 10 marks\nResident of Rural area of Distt.\t   -   5 marks\n\n<\/pre>\n
\tThe other criteria evolved for award of marks under the head
\n‘academic achievements’, bonus marks for sports etc. need not be quoted.
\nMore particularly, we are concerned with Para II (supra) i.e., bonus marks
\nfor ‘domiciles’.  It may be mentioned that there is no dispute in so far as the
\naward of bonus marks to the ‘domiciles’ of the State of Rajasthan.  The
\ncontroversy is only with regard to Items 2 and 3 i.e. 10 marks for residence
\nin the District concerned and 5 marks for residence in rural areas of the
\nconcerned district.  It may be noted that there was no written examination.
\nThe interview was of a formal nature as there was no assessment of
\ncomparative merit therein.\n<\/p>\n
\tThe above Circular is traceable to the power conferred on the State
\nGovernment under the  proviso to Rule 273 occurring in Chapter XII of the
\nRajasthan Panchayat Raj Rules 1996, according to which the selection for
\nvarious posts shall be made in accordance with the general directions given
\nby the State Government from time to time in this respect.
\n\tIn order to give effect to the orders of the State Government the Zila
\nParishads issued advertisements round about 15th June, 1998 calling for
\napplications. It is seen from the advertisement issued by the Zila Parishad,
\nBarmer,\t the following qualifications are mentioned therein:-
\n“1. Senior secondary under New (10+2) scheme from
\nSecondary Education Board, Rajasthan or Higher
\nsecondary or equivalent under the old scheme or
\nsecondary school certificate or equivalent from
\nsecondary school Education Board Rajasthan with 5
\nsubjects including Sanskrit, Maths, English and Hindi.”\n<\/p>\n
\tSome of the candidates hailing from different districts or towns who
\nwere not eligible for bonus marks (10+5) filed the Writ Petitions under
\nArticle 226<\/a> of the Constitution questioning the circular of the State
\nGovernment (Rural Development and Panchayat Raj Department)
\nprescribing the bonus marks as afore-mentioned and seeking appropriate
\ndirections for their consideration without reference to bonus marks.  This
\nwas done after they appeared for  formal interviews.  By then, the select lists
\nwere published in some Districts and in some other Districts, though they
\nwere presumably prepared, further action was kept in abeyance for certain
\nreasons, including the pendency of the Writ Petitions.\tWhen the matter
\ncame up for hearing before a learned single Judge, he felt that earlier
\nDivision Bench decisions of the Court in Arvind Kumar Gochar and Baljeet
\nKaur’s case needed reconsideration.  Accordingly, the learned single Judge
\nsuggested to the learned Chief Justice to constitute full Bench.   At the same
\ntime, he stayed the final selection pursuant to various advertisements
\ninvolved in the writ petition for three months in the hope that in the
\nmeanwhile the larger Bench will decide the issue.  That is how the full
\nBench was constituted.\tTo recapitulate the sequence, it may be noted that
\nthe first full Bench decision in Deepak Kumar’s case relating to
\nappointments in the Education Department was decided on 21.10.1999.  The
\nsecond full Bench dealing with the cases on hand gave its verdict on
\n18.11.1999.  During the interregnum between the first full Bench judgment
\nand the second full Bench decision, it appears that appointment orders were
\nissued to the selected candidates in some of the districts.   The process of
\nissuing\t appointment letters seems to have continued even after the second
\nfull Bench judgment i.e. after 18.11.1999.\n<\/p>\n
\tIn this factual background, the S.L.Ps came to be filed in this Court.
\nThose who have filed S.L.Ps fall under four categories:
\n(1)\tThose filed by the original writ petitioners who
\nwere aggrieved by the direction in the judgment
\neither confining its application prospectively or
\ndenying relief on the ground that writ petitioners
\nwould not have been selected even if 10 or 15
\nbonus marks are excluded.  The appellant in the
\nfirst of these appeals\tKailash Chand Sharma
\nbelongs to this category.  He hails from the district
\nof Karouli and he applied for the job in Barmer
\ndistrict.\n<\/p>\n
(2)\tThose candidates who have not been offered
\nappointment, though selected on the strength of the
\nweightage accorded for residents of the district and
\nrural areas comprised therein.\n<\/p>\n
(3)\tThose selected on the basis of weightage and
\nappointed after 21-10-99, whose appointments
\nwere likely to be cancelled in view of the
\ndirections in the impugned judgments.\n<\/p>\n
(4)\tOfficial respondents in the Writ Petitions, viz.,
\nState of Rajasthan and Zila Parishads.\n<\/p>\n
\tIn categories 2 and 3 above, persons who were not parties in the High
\nCourt have  sought permission of this Court to file SLPs, which was granted.
\n\tThe first and foremost question that would arise for consideration in
\nthis group of appeals is, whether the circular dated 10.6.1998 providing for
\nbonus marks for residents of the concerned district and the rural areas within
\nthat district is constitutionally valid tested on the touch stone of Article 16<\/a>
\nread with Article 14<\/a> of the Constitution?  It is on this aspect, learned senior
\ncounsel appearing for the candidates concerned have argued at length with
\nadmirable clarity, making copious reference to several pronouncements of
\nthis Court.\n<\/p>\n
There can be little doubt that the impugned circular is the product of
\nthe policy decision taken by the State Government.  Even then, as rightly
\npointed out by the High Court, such decision has to pass the test of Articles
\n14 and 16 of the Constitution.\tIf the policy decision, which in the present
\ncase has the undoubted effect of deviating from the normal and salutary rule
\nof selection based on merit is subversive of the doctrine of equality, it cannot
\nsustain.  It should be free from the vice of arbitrariness and conform to the
\nwell-settled norms  both positive and negative underlying Articles 14 and
\n16, which together with Article 15<\/a> form part of the Constitutional code of
\nequality.\n<\/p>\n
\tIn order to justify the preferential treatment accorded to residents of
\nthe district  and the  rural areas of the district in the matter of selection to the
\nposts of teachers, the State has come forward with certain pleas either before
\nthe High Court or before this Court.   Some of these pleas are pressed into
\nservice by the learned counsel appearing for the parties who are the possible
\nbeneficiaries under the impugned order of the Govt. Such pleas taken by the
\nState Government and from which support is sought to be drawn by the
\nindividual parties concerned will be referred to a little later.
\nBefore proceeding further we should steer clear of a misconception
\nthat surfaced in the course of arguments advanced on behalf of the State and
\nsome of the parties.  Based on the decisions which countenanced
\ngeographical classification for certain weighty reasons such as socio-
\neconomic backwardness of the area for the purpose of admissions to
\nprofessional colleges, it has been suggested that residence within a district or
\nrural areas of that district could be a valid basis for classification for the
\npurpose of public employment as well.  We have no doubt that such a
\nsweeping argument which has the overtones of parochialism is liable to be
\nrejected on the plain terms of Article 16(2)<\/a> and in the light of Art. 16(3).<\/a>  An
\nargument of this nature flies in the face of the peremptory language of
\nArticle 16 (2)<\/a> and runs counter to our constitutional ethos  founded on unity
\nand integrity of the nation.  Attempts to prefer candidates of a local area in
\nthe State were nipped in the bud by this Court since long past.\t We would
\nlike to reiterate that residence by itself  be it be within a State, region,
\ndistrict or lesser area within a district cannot be a ground to accord
\npreferential treatment or reservation, save as provided in Article 16(3).<\/a> It is
\nnot possible to compartmentalize the State into Districts with a view to offer
\nemployment to the residents of that District on a preferential basis.  At this
\njuncture it is appropriate to undertake a brief analysis of Article 16.<\/a>
\n   Article 16<\/a> which under clause (1)  guarantees equality of
\nopportunity for all citizens in matters relating to employment or appointment
\nto any office under the State reinforces that guarantee by prohibiting under
\nclause (2) discrimination on the grounds only of religion, race, caste, sex,
\ndescent, place of birth, residence or any of them.  Be it noted that in the
\nallied Article\tArticle 15<\/a>, the word ‘residence’ is omitted from the opening
\nclause prohibiting discrimination on specified grounds.\t Clauses (3) and (4)
\nof Article 16<\/a> dilutes the rigour of clause (2) by  (i) conferring an enabling
\npower on the Parliament to make a law prescribing the residential
\nrequirement within the State in regard to a class or classes of employment or
\nappointment to an office under the State and (ii) by enabling the State to
\nmake a provision for the reservation of appointments or posts in favour of
\nany backward class of citizens which is not adequately represented in the
\nservices under the State.  The newly introduced clauses (4-A) and (4-B),
\napart from clause (5) of Article 16<\/a> are the other provisions by which the
\nembargo laid down in Article 16 (2)<\/a> in somewhat absolute terms is lifted to
\nmeet certain specific situations with a view to promote the overall objective
\nunderlying the Article. Here, we should make note of two things: firstly,
\ndiscrimination only on the ground of residence (or place of birth) in so far as
\npublic employment is concerned is prohibited; secondly, Parliament is
\nempowered to make the law prescribing residential requirement within a
\nState or Union Territory, as the case may be, in relation to a class or classes
\nof employment.\tThat means, in the absence of parliamentary law, even the
\nprescription of requirement as to residence within the State is a taboo.
\nComing to the first aspect, it must be noticed that the prohibitory mandate
\nunder Article 16(2)<\/a> is not attracted if the alleged discrimination is on
\ngrounds not merely related to residence,  but  the factum of residence is only
\ntaken into account in addition to other relevant factors.  This, in effect, is the
\nimport of the expression ‘only’.\n<\/p>\n
Let us now turn our attention to some of the decided cases.  As far
\nback as in 1969 a Constitution Bench of this Court in A.V.S Narasimha Rao
\nVs. State of A.P. (1970 (1) SCR 115) declared that the law enacted by the
\nParliament in pursuance of Clause (3) of Article 16<\/a> making a special
\nprovision for domicile\twithin\tthe Telegana  region  of   the State of Andhra
\nPradesh\t for   the   purpose   of     public  employment  within  that\tregion
\nand  the  rules\t  made\tthereunder  as\tultra  vires   the  Constitution.
\nPursuant to the enabling power conferred under Section 3 of the Public
\nEmployment (Requirement as to Residence) Act<\/a>, Rules were made making a
\nperson ineligible for appointment to a post within the Telengana area under
\nthe State Government of A.P. or to a post under a local authority in the said
\narea unless he has been continuously residing within the said area for a
\nperiod of not less than 15 years immediately preceding the prescribed date.
\nThe Government issued an order relieving all ‘non-domicile’ persons
\nappointed on or after 1.11.1956 to certain categories of posts reserved for
\ndomiciles of Telengana under the A.P. public employment (Requirement as
\nto Residence) Rules. Such incumbent of post was to be employed in the
\nAndhra region by creating a supernumerary post, if necessary. This
\nlegislative and executive action was struck down by this Court. After
\nreferring to Article 16<\/a>, the Court observed:\n<\/p>\n
“The intention here is to make every office or
\nemployment open and available to every citizen,
\nand inter alia to make offices or employment in
\none part of India open to citizens in all other parts
\nof India.  The third clause then makes an
\nexception..\n<\/p>\n
\tThe legislative power to create residential
\nqualification for employment is thus exclusively
\nconferred on Parliament.  Parliament can make any
\nlaw, which prescribes any requirement as to
\nresidence within the State or Union territory prior
\nto employment or appointment to an office in that
\nState or Union territory.  Two questions arise here,
\nfirstly, whether Parliament, while prescribing the
\nrequirement, may prescribe the requirement of
\nresidence in a particular part of the State and,
\nsecondly, whether Parliament can delegate this
\nfunction by making a declaration and leaving the
\ndetails to be filled in by the rule making power of
\nthe Central and State Governments.”\n<\/p>\n
The argument that a sweeping power was given to the Parliament to make
\nany law as regards residential requirement was repelled thus:
\n” By the first clause equality of opportunity in
\nemployment or appointment to an office is
\nguaranteed.  By the second clause, there can be no
\ndiscrimination, among other things, on the ground
\nof residence.  Realising, however, that sometimes
\nlocal sentiments may have to be respected or
\nsometimes an inroad from more advanced States
\ninto less developed States may have to be
\nprevented, and a residential qualification may,
\ntherefore, have to be prescribed, the exception in
\nclause (3) was made.  Even so, that clause spoke of
\nresidence within the State. The claim of Mr.
\nSetalvad that Parliament can make a provision
\nregarding residence in any particular part of a State
\nwould render the general prohibition lose all its
\nmeaning.  The words ‘any requirement’ cannot be
\nread to warrant something which could have been
\nsaid more specifically.\t These words bear upon the
\nkind of residence or its duration rather than its
\nlocation within the State.  We accept the argument
\nof Mr. Gupte that the Constitution, as it stands,
\nspeaks of a whole State as the venue for residential
\nqualification and it is impossible to think that the
\nConstituent Assembly was thinking of residence in
\nDistricts, Taluqas, cities, towns or villages.\tThe
\nfact that this clause is an exception and came as an
\namendment must dictate that a narrow construction
\nupon the exception should be placed as indeed the
\ndebates in the Constituent Assembly also seem to
\nindicate.”\n<\/p>\n
\tThus, this Court was not inclined to place too wide an interpretation
\non Art. 16(3<\/a>), keeping broadly in view the constitutional philosophy.
\n\tIn Pradeep Jain Vs. Union of India (AIR 1984 SC 1420) though the
\nCourt was concerned with the question whether residential requirement or
\ninstitutional preference in admissions to technical and medical colleges can
\nbe  constitutionally permissible in the light of Article 15 (1)<\/a> and 15 (4<\/a>),
\nBhagwati, J. speaking for the Court expressed his prima facie opinion thus
\nas regards residential requirement in the field of public employment:
\n” We may point out at this stage that though Art.\n<\/p>\n
15(2) bars discrimination on grounds, not only of
\nreligion, race, caste or sex but also on place of
\nbirth, Art 16 (2) goes further and provides that no
\ncitizen shall on grounds only of religion, race,
\ncaste, sex, descent, place of birth, residence or any
\nof them be ineligible for or discriminated against
\nin State employment.  So far as employment under
\nthe State or any local or other authority is
\nconcerned, no citizen can be given preference nor
\ncan any discrimination be practised against him on
\nthe ground only of residence.  It would thus appear
\nthat residential requirement would be
\nunconstitutional as a condition of eligibility for
\nemployment or appointment to an office under the
\nState . But, Art. 16(3)<\/a> provides
\nan exception to this rule by laying down that
\nParliament may make a law “prescribing, in regard
\nto a class or classes of employment or appointment
\nto an office under the government of, or any local
\nor other authority in, a State or Union Territory,
\nany requirement as to residence within that State or
\nUnion territory prior to such employment or
\nappointment.”\tParliament alone is given the right
\nto enact an exception to the ban on discrimination
\nbased on residence and that too only with respect
\nto positions within the employment of a State
\nGovernment.  But even so, without any
\nparliamentary enactment permitting them to do so
\nmany of the State Governments have been
\npursuing policies of localism since long and these
\npolicies are now quite widespread.  Parliament has
\nin fact exercised little control over these policies
\nformulated by the States.  The only action, which
\nParliament has taken under Art. 16(3)<\/a> giving it the
\nright to set a residence requirement has been the
\nenactment of the Public Employment (requirement
\nas to Residence) Act<\/a>, 1957 ..\n<\/p>\n
There is therefore, at present no parliamentary
\nenactment permitting preferential policies based on
\nresidence requirement except in the case of Andhra
\nPradesh, Manipur, Tripura and Himachal Pradesh
\nwhere the Central government has been given the
\nright to issue directions setting residence
\nrequirements in the subordinate services.  Yet, in
\nthe face of Art. 16(2)<\/a> some of the States are
\nadopting ‘sons of the soil’ policies prescribing
\nreservation or preference based on domicile or
\nresidence requirement for employment or
\nappointment to an office under the Government  of
\na State or any local or other authority or public
\nsector corporation or any other corporation which
\nis an instrumentality or agency of the State.  Prima
\nfacie this would seem to be constitutionally
\nimpermissible though we do not wish to express
\nany definite opinion upon it, since it does not
\ndirectly arise for consideration in these writ
\npetitions and civil appeal.”\n<\/p>\n
However, in so far as admissions to educational institutions such as medical
\ncolleges are concerned, it was pointed out that Article 16(2)<\/a> has no
\napplication and residential requirement cannot per se be condemned as
\nunconstitutional.  It was observed that the only provision of the Constitution
\non the touchstone of which such residence requirement can be tested is
\nArticle 14.<\/a>  On a conspectus of earlier decisions of this Court, the learned
\nJudge summarised the position thus in so far as admissions to professional
\neducation colleges are concerned: –\n<\/p>\n
 “It will be noticed from the above discussion that
\nthough intra-State discrimination between persons
\nresident in different districts or regions of a state
\nhas by and large been frowned upon by the Court
\nand struck down as invalid as in Minor P.\n<\/p>\n
Rajendran’s case (AIR 1968 SC 1012) (supra) and
\nPerukaruppan’s case (AIR 1971 Sc 2303) (supra),
\nthe Court has in D. N. Chanchala’s case and other
\nsimilar cases upheld institutional reservation
\neffected through universitywise distribution of
\nseats for admission to medical colleges.  The Court
\nhas also by its decisions in D.P. Joshi’s case (AIR
\n1955 SC 334) and N. Vasundhara’s case (AIR
\n1971 SC 1439) (supra) sustained the constitutional
\nvalidity of reservation based on residence
\nrequirement within a State for the purpose of
\nadmission to medical colleges.\tThese decisions
\nwhich all relate to admission to MBBS course are
\nbinding upon us and it is therefore not possible for
\nus to hold, in the face of these decisions that
\nresidence requirement in a State for admission to
\nMBBS course is irrational and irrelevant and
\ncannot be introduced as a condition for admission
\nwithout violating the mandate of equality of
\nopportunity contained in Art. 14.<\/a>   We must
\nproceed on the basis that at least so far as
\nadmission to MBBS course is concerned, residence
\nrequirement in a State can be introduced as a
\ncondition for admission to the MBBS course.”\n<\/p>\n
Bhagwati, J. underscored the need for evolving a policy of ensuring
\nadmissions to the MBBS course on all India basis “based as it is on the
\npostulate that India is one nation and every citizen of India is entitled to have
\nequal opportunity for education and advancement.”  But, it was observed
\nthat the realization of such ideal may not be realistically possible in the
\npresent circumstances.\tIt was then concluded:\n<\/p>\n
“We are therefore of the view that a certain
\npercentage of reservation on the basis of residence
\nrequirement may legitimately be made in order to
\nequalize opportunities for medical admission on a
\nbroader basis and to bring about real and not
\nformal, actual and not merely legal, equality.\tThe
\npercentage of reservation made on this count may
\nalso include institutional reservation for students
\npassing the PUC or pre-medical examination of the
\nsame university or clearing the qualifying
\nexamination from the school system of the
\neducational hinterland of the medical colleges in
\nthe State.”\n<\/p>\n
It is not necessary for us to refer in extenso to various other decisions of this
\nCourt dealing with the scope of Article 15 (1)<\/a> and 15 (4)<\/a> vis a vis
\nreservations based on residence within a University or other local area for
\nthe purpose of admissions to professional colleges.  A summary of those
\ndecisions has been given by Bhagwati, J. in the passage extracted (supra).
\nThe requirement of residence and education within the university area for
\nallocation of seats in medical colleges affiliated to that university was upheld
\non special considerations noticed in that judgment.
\n We may, however, advert to one recent decision wherein the view
\ntaken in Rajendran’s case (supra) was reiterated.   In Govind A. Mane Vs.
\nState of Maharashtra,  (2000 (4) SCC 200) it was laid down:\n<\/p>\n
\t\t“Since it is not disputed by the respondents that for the
\npurpose of admission to B.Ed course,  seats were distributed
\ndistrictwise without indicating any material to show the nexus
\nbetween such distribution and the object sought to be achieved,
\nit would be violative of Article 14<\/a> of the Constitution.”\n<\/p>\n
The lack of material to establish nexus between the geographical
\nclassification and the object sought to be achieved  thereby was thus held to
\nbe violative of Article 14.<\/a>\n<\/p>\n
  The question which fell for consideration of this Court  whether the
\naction of the State in Pradip Tandon vs. State of U.P<\/a>. (1975 (1) SCC 267)
\nwas  in reserving certain percentage of seats available in medical colleges in
\nfavour of candidates from rural areas, hill areas and Uttarakhand was
\njustified?  The reservation was sought to be justified from the stand point of
\nArticle 15(4).<\/a>\tRepelling the contention, Ray, C.J., speaking  for a three-
\nJudge Bench observed that “the Constitution does not enable the State to
\nbring socially and educationally backward areas within the protection of
\nArticle 15(4)”.<\/a>\t It was pointed out that the accent in Article 15(4)<\/a> is on
\nclasses of citizens :\n<\/p>\n
“The expression “classes of citizens” indicates a
\nhomogeneous section of the people who are
\ngrouped together because of certain likenesses and
\ncommon traits and who are identifiable by some
\ncommon attributes.  The homogeneity of the class
\nof citizens is social and educational backwardness.
\nNeither caste nor religion nor place of birth will be
\nthe uniform element of common attributes to make
\nthem a class of citizens.”\n<\/p>\n
\tEschewing the test of poverty as the determining factor of social
\nbackwardness this Court made the following pertinent observations :
\n”  A division between the population of our
\ncountry on the ground of poverty that the people in
\nthe urban areas are not poor and that the people in
\nthe rural areas are poor is neither supported by
\nfacts nor by a division between the urban people
\non the one hand and the rural people on the other
\nthat the rural people are socially and educationally
\nbackward class.\n<\/p>\n
\tSome people in the rural areas may be
\neducationally backward, some may be socially
\nbackward, there may be few who are both socially
\nand educationally backward, but it cannot be said
\nthat all citizens residing in rural areas are socially
\nand educationally backward.\n<\/p>\n
\tEighty per cent of the population in the State
\nof Uttar Pradesh in rural areas cannot be said to be
\na homogeneous class by itself.\tThey are not of the
\nsame kind.  Their occupation is different.  Their
\nstandards are different.  Their lives are different.
\nPopulation cannot be a class by itself.\t Rural
\nelement does not make it a class.  To suggest that
\nthe rural areas are socially and educationally
\nbackward is to have reservation for the majority of
\nthe State.”\n<\/p>\n
It was further observed :\n<\/p>\n
“The reservation for rural areas cannot be
\nsustained on the ground that the rural areas
\nrepresent socially and educationally backward
\nclasses of citizens.  This reservation appears to be
\nmade for majority population of the State.  Eighty
\nper cent of the population of the State cannot be a
\nhomogeneous class.  Poverty in rural areas cannot
\nbe the basis of classification to support reservation
\nfor rural areas.”\n<\/p>\n
It was then observed that “the present case of classification of rural areas is
\nnot one of under-classification.  This is a case of discrimination in favour of
\nthe majority of rural population to the prejudice of the students drawn from
\nthe general category”.\n<\/p>\n
\tHowever, the learned Judges took the view that the hill and
\nUttarakhand areas in U.P. State are ‘instances’ of socially and educationally
\nbackward classes of citizens and that those living in the hill and Uttarakhand
\nareas can be considered to be socially and educationally backward classes of
\ncitizens.   The social, economic and educational factors justifying such
\nconclusion were set out succinctly by the learned Judges.  Ultimately the
\nreservation in favour of candidates from rural areas was declared
\nunconstitutional while upholding reservation for the candidates from hill and
\nUttarakhand areas.  The principle laid down in the above decisions, though
\nin the context of interpretation of Article 15(4)<\/a> is an answer to the contention
\nof the State  that bonus marks are provided for uplifting the rural educated
\npersons so as to utilize their services for the upliftment of the fellow rural
\npeople through the spread of education.\t  Prohibition of discrimination on
\nthe basis of place of residence in the context of public employment is an
\nadditional factor which makes it well nigh impossible to accept the above
\nplea.\n<\/p>\n
\t\tBefore examining the further pleas in support of the impugned
\naction taken by the State it would be apposite to refer to the decision in State
\nof Maharashtra Vs. Raj Kumar (AIR 1982 SC 1301), on which reliance has
\nbeen placed by the High Court and reference has been made in the course\t of
\narguments before us.  In that case a rule was made by the State of
\nMaharashtra that a candidate in order to be treated as a rural candidate  must
\nhave passed SSC Examination which is held from a village or a town having
\nonly ‘C’ type municipality.  The object of the rule, as pointed out by this
\nCourt, was to appoint candidates having full knowledge of rural life and its
\nproblems so that they would be more suitable for working as officers in rural
\nareas.\tThe rule was struck down on the ground that there was no nexus
\nbetween classification made and the object sought to be achieved because
\n“as the rule stands any person who may not have lived in a village at all can
\nappear for SSC examination from a village and yet become eligible for
\nselection”.  The rule was held to be violative of Articles 14 and 16.  Another
\npoint discussed\t by the Court was about the propriety of giving\t bonus marks
\nfor the rural candidates and the Court held thus :\n<\/p>\n
“The rules also provide that viva-voce Board would put
\nrelevant questions to judge the suitability of candidate for
\nworking in rural areas and to test whether or not they have
\nsufficient knowledge of rural problems, and this no doubt
\namounts to a sufficient safeguard to ascertain the ability of
\nthe candidate regarding his knowledge about the affairs of
\nthe village.  In such a situation there was absolutely no
\noccasion for making an express provision for giving
\nweightage which would virtually convert merit into demerit
\nand demerit into merit and would be per se violative of
\nArticle 14<\/a> of the Constitution as being an impermissible
\nclassification.\t The rule of weightage as applied in this case
\nis manifestly unreasonable and wholly arbitrary and cannot
\nbe sustained.”\n<\/p>\n
\tThis decision is not a direct authority for the proposition that a citizen
\ncannot be preferred for employment under the State on the ground that he or
\nshe hails from rural area.  However, what has been laid down in regard to the
\nfirst point assumes some relevance in the cases on hand.  The criterion for
\nidentifying a rural candidate was held to be irrelevant as it had no nexus with
\nthe object sought to be achieved.  In the present case, the position is much
\nworse as the impugned circular does not spell out any criteria or indicia to
\ndetermine whether an applicant is a rural candidate.
\n\tRealising the difficulty in sustaining the impugned circular of the
\nGovernment merely on the basis of classification between persons residing
\nin rural areas and towns, Mr. Rajeev Dhawan, learned Senior counsel as well
\nas the learned counsel appearing for the State, sought to draw support from
\nthe plea taken by the State in the counter affidavit filed in SLP  No.
\n10780\/2001 that the award of bonus marks to the residents of rural areas is a
\nmeasure of affirmative action or compensatory discrimination to help the
\ndisadvantaged sections,\t namely, the rural people.  It is trite to say that India
\nlives in villages and inhabited predominantly by poorer sections of people.
\nThe people in the rural areas suffer many handicaps especially in the sphere
\nof education.  These factors,  according to the learned counsel justify the
\nState action to throw up better employment opportunities to the rural citizens
\nand such act of levelling, it is contended, is nothing but an instance of
\nprotective discrimination.  According to the learned counsel, the State, in the
\ninstant case, has resorted to least offensive and least obtrusive method of
\nprotecting the interests of the rural citizens instead of going in for wholesale
\nreservation and it does not in any way violate the  mandate of Art. 14<\/a> or
\nArt.16.<\/a>\t  The learned counsel reminds us that giving relaxations and
\nconcessions to disadvantaged people are an integral part of the equality
\nclause enshrined in Article 14.<\/a>\n<\/p>\n
\tThis plea proceeds on the supposition that the proportion of
\nemployment of rural residents is much less than that of the residents in the
\ntowns; in other words, the major chunk of appointments in State services are
\ngoing to those born in and brought up in towns.\t The other assumption
\nunderlying this argument is that  the educated people in the rural areas are
\neconomically weaker than those living in towns.\t None of these assumptions
\nare based upon any data or concrete material. We must say that the argument
\nbuilt up on this plea falls more in the realm of platitudes rather than
\naffording a solid basis for the classification.\t In Nidamarti Maheshkumar Vs.
\nState of Maharashtra (1986 (2) SCC 534), when regionwise classification for
\nadmissions to medical colleges was sought to be defended on the ground that
\nVidharbha and Marathwada regions are backward as compared to Pune and
\nBombay regions, this Court declined to accept such contention.\tIt was
\nobserved :\n<\/p>\n
“In the first place there is no material to show that
\nthe entire region within the jurisdiction of the
\nuniversity in Vidharbha is backward or that the
\nentire region within the jurisdiction of Pune
\nUniversity is advanced.\t There are quite possibly
\neven in the region within the jurisdiction of Pune
\nUniversity predominantly rural areas which are
\nbackward and equally there may be in the region
\nwithin the jurisdiction of the university in
\nVidharbha, areas which are not backward.  We do
\nnot think it is\t possible to categorise the regions
\nwithin the jurisdiction of the various universities as
\nbackward or advanced as if they were exclusive
\ncategories and in any event there is no material
\nplaced before us which would persuade us to reach
\nthat conclusion.”\n<\/p>\n
\tHere too, in the absence of any material, we cannot take it for granted
\nthat the premise on which the argument is sought to be built up is correct.
\nSimilarly, when the reservations of certain percentage of seats in medical
\ncolleges in favour of candidates from rural areas was sought to be justified
\non economic considerations, a three Judge Bench of  this Court speaking
\nthrough Ray, C.J., in State of U.P. vs. Pradip Tandon<\/a> (1975 (1) SCC 267)
\nemphatically rejected the plea.\t We quote:\n<\/p>\n
 ”  A division between the population of
\nour country on the ground of poverty that the
\npeople in the urban areas are not poor and that the
\npeople in the rural areas are poor is neither
\nsupported by facts nor by a division between the
\nurban people on the one hand and the rural people
\non the other that the rural people are socially and
\neducationally backward class.\n<\/p>\n
\tSome people in the rural areas may be
\neducationally backward, some may be socially
\nbackward, there may be few who are both socially
\nand educationally backward, but it cannot be said
\nthat all citizens residing in rural areas are socially
\nand educationally backward.\n<\/p>\n
The following observations may also be noticed :\n<\/p>\n
“The reservation for rural areas cannot be
\nsustained on the ground that the rural areas
\nrepresent socially and educationally backward
\nclasses of citizens.  This reservation appears to be
\nmade for majority population of the State.  Eighty
\nper cent of the population of the State cannot be a
\nhomogeneous class.  Poverty in rural areas cannot
\nbe the basis of classification to support reservation
\nfor rural areas .  The incident of birth
\nin rural areas is made the basic qualification.\t No
\nreservation can be made on the basis of place of
\nbirth as that would offend Art. 15″.<\/a>\n<\/p>\n
\tThough the Court was primarily dealing with an argument based on
\nArticle 15(4)<\/a> and the import of the expression “socially and educationally
\nbackward classes of citizens” occurring in that sub-Article, the observations
\nquoted above are quite relevant in testing the plea raised on behalf of the
\nState to save the classification. In the face of what has been laid down in
\nPradip Tandon’s case, the State cannot possibly invoke Article 16(4).<\/a>
\n Our attention has however been drawn to the following observations
\nin Nidamarti’s case (supra) in reiteration of what was said in Pradeep Jain’s
\ncase (supra) :\n<\/p>\n
“It is therefore, clear that where the region from
\nwhich the students of a university are largely
\ndrawn is backward either from the point of view of
\nopportunities for medical education or availability
\nof competent and adequate medical services, it
\nwould be constitutionally permissible, without
\nviolating the mandate of the equality clause, to
\nprovide a high percentage of reservation or
\npreference for students coming from that region,
\nbecause without reservation or preference students
\nfrom such backward region will hardly be able to
\ncompete with those from advanced regions since
\nthey would have no adequate opportunity for
\ndevelopment so as to be in a position to compete
\nwith others.  By reason of their socially or
\neconomically disadvantaged position they would
\nnot have been able to secure education in good
\nschools and they would consequently be at a
\ndisadvantage compared to students belonging to
\nthe affluent or well-to-do  families who have had
\nbest of school education.  There can, therefore,
\nlegitimately be reservation or preference in their
\nfavour so far as admissions are concerned in case
\nof a medical college which is set up or intended to
\ncater to the needs of a region which is backward or
\nwhose alumni are largely drawn from such
\nbackward region.”\n<\/p>\n
\tThese observations, in our view, cannot be legitimately pressed into
\nservice for the purpose of justifying reservation or weightage in favour of
\nrural candidates on the ground of nativity\/residence for purposes of public
\nemployment.  The difference in approach in relation to Articles 15 and 16
\nwas indicated by Bhagwati, J. in Pradeep Jain’s case and we have quoted the
\nrelevant passage extensively.  It was made clear in Pradeep Jain’s case\t that
\nin the matter of admissions to professional colleges the considerations were
\ndifferent.  As far as public employment is concerned, the classification on
\nthe basis of residence in a region or locality was broadly held to be
\nconstitutionally impermissible.\t Moreover, the preferential treatment of rural
\ncandidates in the instant case is not on the ground that they hail from the
\nbackward region.  All or most of  the villages in the district or the State
\ncannot be presumed to be backward educationally or economically.  Such a
\nclaim was not accepted\tin Pradip Tandon’s case by a three Judge Bench.
\nEven in Nidamarti’s case, it was held that in absence of material, certain
\nregions cannot be dubbed as backward.\n<\/p>\n
  The justifiability of the plea stemming from the premise that
\nuplifting the rural people is an affirmative action to improve their lot can be
\ntested from the concrete situation which confront us in the present cases.
\nWe are here concerned with the selections to the posts of teachers of primary
\nschools, the minimum qualification being SSC coupled with basic training
\ncourse in teaching.  Can the Court proceed on the assumption that the
\ncandidates residing in the town areas with their education in the schools or
\ncolleges located in the towns or its peripheral areas stand on a higher
\npedestal than the candidates who  had studied  in the rural area schools or
\ncolleges?  Is the latter comparatively a disadvantaged and economically
\nweaker segment when compared to the former?  We do not think so.  The
\naspirants for the teachers jobs in primary schools  be they from rural area or
\ntown area do not generally belong to affluent class.  Apparently they come
\nfrom lower middle class or poor background.  By and large, in the pursuit of
\neducation, they suffer and share the same handicaps as their fellow citizens
\nin rural areas.\t  It cannot be said that the applicants from non-rural areas
\nhave access to best of the schools and colleges\t which the well to do class
\nmay have.  Further, without any data, it is not possible to presume that the
\nschools and colleges located in the towns- small or big and their peripheral
\nareas are much better qualitatively, that is to say, from the point of view of
\nteaching standards or infrastructure facilities so as to give an edge to the
\ntown candidates over the rural candidates.\n<\/p>\n
\tWe are, therefore, of the view that the first plea raised by the
\nState which is also found in the counter-affidavit filed before the High
\nCourt (as seen from the judgment in Deepak Kumar Suthar’s case) is
\nuntenable.\n<\/p>\n
\tWe now turn our attention to two other pleas more vehemently raised
\nby Mr. Rajeev Dhawan as well as the counsel appearing for the State to
\njustify the weightage in favour of District and rural candidates..  We may
\nquote the averments in the counter affidavit of the State in one of the cases
\ni.e. SLP 10780\/2001:\n<\/p>\n
“These teachers were primarily recruited for primary
\neducation of the children in backward and rural districts.
\n  It is bounden duty of the State to provide free
\nand compulsory education to the children upto 14 years
\nirrespective of their place and status.\n<\/p>\n
It has been empirically found that the teachers recruited
\nfrom urban and relatively from forward districts do not
\nwish to go to the rural and relatively backward districts.
\nThe result is that ‘teacher absenteeism’ is rampant and
\nthe teachers are more interested in getting themselves
\ntransferred to relatively urban areas and forward districts.
\nThe situation is most appalling in the district of Barmer
\nwhere the literacy rates is only 18.33%.  Thus it had
\nbecome imperative that the teachers belonging to the
\nrural areas and belonging to certain districts should be
\npreferred by granting certain additional marks so that
\nthere is teacher retention in those districts and rural areas
\nand there is no depletion in the teacher strength even in
\nthe rural and backward districts.  This grant of additional
\nmarks is based upon a very noble objective of providing
\neducation to all.\n<\/p>\n
The other reason for differentia is based upon the
\nvernacular language which the teachers are going to
\nteach at the primary stage.  It has been repeatedly
\nstressed by various educational surveys that medium of
\ninstruction should be mother tongue as far as possible.
\nThe State of Rajasthan is the largest state in the country
\nand has diverse climatic and socio-cultural zones.  The
\ndialects\/languages vary according to the topography of
\nthe region ranging from the Thar Desert of the West to
\nthe sub-humid climate of the East.  Each zone has its
\ndistinct language which is barely similar to that of the
\nother regions.\tBy enacting a policy of granting some
\nadditional marks to persons belonging to particular
\ndistricts shall lead to teachers conversant in local
\nvernacular teaching the children who some times only
\nknow the local language.  That shall establish easy
\nrapport and understanding of the children at the tender
\nage.  Thus the objective of granting additional marks
\nshall not only lead to retention of teacher in a rural and
\nbackward district but it shall also benefit the student
\ncommunity as they shall have a teacher who shall be able
\nto understand them and converse with them easily.”\n<\/p>\n
\tThe two grounds pleaded in justification of preferential treatment
\naccorded to rural area candidates found favour with the Division Bench of
\nthe High Court in Baljit Kaur’s case (1992 WLR Raj. P.83) and Arvind
\nKumar Gochar’s case (decided on 6.4.94). Shri Rajeev Dhawan appearing
\nfor the selected candidates who have filed SLP\tNo. 10780\/2001, did his
\nbest to support the impugned circular mainly on the second ground, namely,
\nbetter familiarity with the local dialect.   The learned counsel contends that
\nwhen the teachers are being recruited to serve in Gram Panchayat areas
\nfalling within the concerned Panchyat Samiti, those hailing from the
\nparticular district and the rural areas of that district are better suited to teach
\nthe students within that district and the Panchyat areas comprised therein. He
\nsubmits that the local candidates can get themselves better assimilated into
\nthe local environment and will be in a better position to interact with the
\nstudents at primary level.  Stress is laid on the fact that though the
\nlanguage\/mother tongue is the same, the dialect varies from district to
\ndistrict and even within the district.\tBy facilitating\t selection of local
\ncandidates to serve the Panchyat run schools, the State has  not introduced
\nany discrimination on the ground of residence but acted in furtherance of the
\ngoal to impart education.  Such candidates will be more effective as primary
\nschool teachers and more suitable for the job.\tIt is therefore contended that
\nthe classification is grounded on considerations having nexus with the object
\nsought to be achieved and is not merely related to residence.  We find it
\ndifficult to accept this contention, though plausible it is.  We feel that undue
\naccent is being laid on the dialect theory without factual foundation.\tThe
\nassertion that dialect and nuances of the spoken language varies from district
\nto district is not based upon empirical study or survey conducted by the
\nState.\tNot even specific particulars are given in this regard.\t The stand in the
\ncounter affidavit (extracted supra) is that “each zone has its distinct
\nlanguage”.  If that is correct, the Zila Parishad should have mentioned in the
\nnotification that the candidates should know particular language to become
\neligible for consideration.  We are inclined to think that reference has been
\nmade in the counter to ‘language’ instead of ‘dialect’ rather inadvertently.
\nAs seen from the previous sentence, the words dialect and language are used
\nas interchangeable expressions, without perhaps understanding the
\ndistinction between the two. We therefore take it that what is meant to be
\nconveyed in the counter is that each Zone has a distinct dialect or vernacular
\nand therefore local candidates of the district would be in a better position to
\nteach and interact with the students.  In such a case, the State Government
\nshould have identified the zones in which vernacular dissimilarities exist and
\nthe speech and dialect vary.  That could only be done on the basis of
\nscientific study and collection of relevant data.  It is nobody’s case that such
\nan exercise was done.  In any case, if these differences exist zone-wise or
\nregion-wise, there could possibly be no justification for  giving weightage to
\nthe candidates on the basis of residence in a district.\t  The candidates
\nbelonging to that zone, irrespective of the fact whether they belong to x, y or
\nz district of the zone could very well be familiar with the allegedly different
\ndialect peculiar to that zone. The argument further breaks down, if tested
\nfrom the stand point of award of bonus marks to the rural candidates.  Can it
\nbe said reasonably that candidates who have settled down in the towns will
\nnot be familiar with the dialect of that district?  Can we reasonably proceed
\non the assumption that rural area candidate are more familiar with the dialect
\nof the district rather than the town area candidates of the same district?  The
\nanswer to both the questions in our view cannot but be in the negative.\t To
\nprefer the educated people residing in villages over those residing in towns
\nbig or small of the same district, on the mere supposition that the former
\n(rural candidates) will be able to teach the rural students better would only
\namount to creating an artificial distinction having no legitimate connection
\nto the object sought to be achieved. It would then be a case of discrimination
\nbased primarily on residence which is proscribed by Art. 16(2).<\/a>
\n\tComing then to the next plea that the residents of towns, if appointed
\nwill not be willing to serve the rural areas and they will be more interested in
\ngetting themselves transferred to “relatively urban area and forward
\ndistricts”, does not in our view, stand a moment’s scrutiny.  The
\napprehension that ‘teacher absenteeism’ will be rampant if non-rural
\ncandidates are appointed, to say the least, is based on irrelevant and
\nunwarranted assumptions.  First of all, as rightly pointed out by Dr. A.M.
\nSinghvi, postings and transfers are managerial functions.   The\t concerned
\nauthorities in-charge cannot be heard to say that there will be undue
\npressures from the candidates from extraneous sources and they will have to
\nsuccumb to such pressures.  Secondly the question of non rural candidates
\ntrying to avoid working in villages and seeking transfer to town or urban
\nareas does not arise for the simple reason that the appointees would have no
\noption\tbut  to\t work  in  villages  coming within the jurisdiction of the
\nconcerned Panchayat Samiti.  The only other possibility is that they may like
\nto have postings in the villages close to the town.   If the non-rural
\ncandidates would like to have postings at places close to the town, the rural
\narea candidates may equally have the desire to get  postings close to their
\nnative villages and many of them may even prefer working at places near the
\ntown. Thus desire and aspiration in regard to choosing the place of work
\nneed not be on a set pattern. Ultimately, it is a matter of regulation of
\npostings of rural as well as non-rural candidates.  As regards the candidates
\ncoming from other districts, the question of seeking inter-district transfer
\ndoes not arise, as they are required to work within the particular district in
\nwhich they are selected and appointed.\tThe factors which may exist in the
\ncontext of appointments to State-wide cadre does not exist here.  The
\ndifficulties sought to be projected by the State appear to be more imaginary
\nrather than real.  We have, therefore, no hesitation in rejecting this argument.
\n\tThe above discussion leads us to the conclusion that the award of
\nbonus marks to the residents of the district and the residents of the rural
\nareas of the district amounts to impermissible discrimination.\t There is no
\nrational basis for such preferential  treatment on the material available before
\nus.  The ostensible reasons put forward to distinguish the citizens residing in
\nthe State are either non-existent or irrelevant and they have no nexus with
\nthe object sought to be achieved, namely, spread of education at primary
\nlevel.\tThe offending part of Circular has the effect of diluting merit, without
\nin any way promoting the objective.  The impugned circular dated 10.6.1998
\nin so far as the award of bonus marks is concerned, has been rightly declared
\nto be illegal and unconstitutional by the High Court.
\n\tOne more serious infirmity in the impugned circular is that it does not
\nspell out any criteria or indicia for determining whether the applicant is a
\nresident of rural area.\t Everything is left bald with the potential of giving rise
\nto varying interpretations  thereby defeating the apparent objective of the
\nrule.  On matters such as duration of residence, place of schooling etc., there
\nare bound to be controversies.\tThe authorities, who are competent to issue
\nresidential certificates, are left to apply the criteria according to their
\nthinking, which can by no means be uniform.  The decision in the State of
\nMaharashtra vs. Raj Kumar<\/a>  (AIR 1982 SC 1301) is illustrative of the
\nproblem created by vague or irrelevant criteria.  In that case a rule was made
\nby the State of Maharshtra that a candidate will be considered a rural
\ncandidate if he had passed SSC Examination  held from a village or a town
\nhaving only ‘C’ type municipality. The object of the rule, as noticed by this
\nCourt, was to appoint candidates having full knowledge of rural life  so that
\nthey would be more suitable for working as officers in rural areas.  The rule
\nwas struck down on the ground that there was no nexus between
\nclassification made and the object sought to be achieved because “as the rule
\nstands, any person who may not have lived in a village at all can appear for
\nSSC Examination from a village and yet become eligible for selection”.\tThe
\nrule was held to be violative of Article 14<\/a> and 16.<\/a>  When no guidance at all
\nis discernible from the impugned circular as to the identification of the
\nresidence of the applicants especially\thaving regard to the indefinite nature
\nof the concept of residence, the provision giving the benefit of bonus marks
\nto the rural residents will fall foul of Art. 14.<\/a>\n<\/p>\n
\t   We have now come to the close of discussion on the constitutional
\nissue arising in the case.  Now, we shall proceed to consider the question of
\nrelief.\t We have to recapitulate at this juncture, how the High Court in the
\ntwo impugned judgments before us, addressed itself to the question of relief.
\n\tThere are two judgments under appeal in this batch of cases.  The first
\nis the judgment of the Full Bench dated 18.11.1999 in Kailash Chand’s case.
\nThe second is the judgment of the Division Bench dated 13.4.2002 in a batch
\nof appeals filed by the State against the decision of the learned single Judge
\ndisposing of the Writ Petitions.\n<\/p>\n
\t In Kailash Chand’s case, the earlier Full Bench judgment in Deepak
\nKumar’s case rendered a month earlier, the operative part of which  has been
\nextracted at para 3 (supra) of this judgment, was implicitly followed.\t No
\nseparate directions or observations are found in the full Bench judgment in
\nKailash Chand’s case which is under appeal now.\t However, it has been
\nmade clear by the full Bench that the cases before it were being disposed of
\n“in the same terms” as those contained in the earlier full Bench decision.
\nThe writ petitions were “ordered accordingly”.\tTherefore, the operative part
\nof the judgment in Deepak Kumar’s case applies “mutatis mutandis” to the
\ncases disposed of by the full Bench by its judgment dated 18.11.1999.
\nAccording to those directions, the appointment made earlier to the judgment
\nshall not be affected and the judgment should have prospective application
\nin that sense.\tThe second part to be noticed is that the full Bench (in Deepak
\nKumar’s case) made it clear that no relief can be granted to the petitioners as
\nthey will not stand to gain even if the bonus marks are omitted.   No separate
\nfinding on this aspect has been recorded by the full Bench in the impugned
\norder.\n<\/p>\n
\tComing to the second batch of cases, the learned Judges of the
\nDivision Bench while reiterating the directions given by the full Bench in
\nDeepak Kumar’s case, however, dismissed the appeals, though the directions
\ngiven by the learned single Judge are somewhat at variance with those
\ngranted in Deepak Kumar’s case.\t The learned single Judge quashed the
\nmerit list prepared or in existence after 21.10.1999 (the date of judgment in
\nDeepak Kumar’s case) and directed fresh merit lists to be prepared ignoring
\nthe provision for award of bonus marks to the district and rural residents and
\nto regulate  appointments based on that fresh list, if necessary, after giving
\nshow cause notice to the appointees.  The affected appointees (who were not
\nparties before the High Court) have filed the SLPs in view of the
\nconsequential action taken by the concerned authorities.
\n\tWhether the judgment should be given prospective application so as
\nnot to affect the appointments made prior to the date of the judgment i.e.
\n18.11.1999 is one question that has been debated before us in the
\nbackground of direction given by the High Court.    Counsel appearing for
\nthe original writ petitioners who succeeded in principle before the High
\nCourt contended that there is no warrant to invoke the theory of prospective
\noverruling to validate unconstitutional appointments especially when such
\nappointments were made during the pendency of the writ petitions and some
\nof the appointments were made after the matter was referred to the full
\nBench.\tAt any rate, it is contended that the appointments orders issued after
\nthe first full Bench judgment which was rendered on 21.10.1999\t should not
\nbe validated.  On the other hand, it is contended by the learned counsel
\nappearing for the successful candidates who have been either appointed or
\nyet to receive appointment orders that there is every justification for the
\nprospective application of the judgment.  While so contending, the learned
\ncounsel find fault with the direction of the High Court\t in so far as it
\nimpliedly restrains further appointments subsequent to the date of the
\njudgment.  In this connection, it is pointed out that the selections were
\nfinalized long prior to the judgment  either of the first full Bench or of the
\nsecond full Bench, and\tif there was delay in issuing appointment orders
\neither on account of the stay order or administrative delays, the candidates
\nselected should not be placed at a disadvantageous position when compared
\nto the candidates appointed earlier.   In other words, these parties contend
\nthat the creation of a cut-off date with reference to the appointments already
\nmade and yet to be made is unjustified and it would have been in the fitness
\nof things if all the selected candidates are excluded from the rigour of the
\njudgment as a one time measure instead of creating two classes amongst
\nthem.\n<\/p>\n
\tArguments were addressed before us on the contours and limitations
\nof the doctrine of prospective overruling applied in our country for the first
\ntime in Golak Nath Vs. State of Punjab (1967 (2) SCR 762) in the context of
\ninvalidity of certain constitutional amendments and extended gradually to
\nthe laws found unconstitutional or even to the interpretation of ordinary
\nstatutes.  The sum and substance of this innovative principle is that when the
\nCourt finds or lays down the correct law in the process of which the
\nprevalent understanding of the law undergoes a change, the Court,  on
\nconsiderations of justice and fair deal, restricts the operation of the new
\nfound law to the future\t so that its impact does not fall on the past
\ntransactions.  The doctrine recognises the discretion of the  Court to
\nprescribe the limits of retroactivity of the law declared by it.  It is a great
\nharmonizing principle equipping the Court with the power to mould the
\nrelief to meet the ends of justice.  Justification for invoking the doctrine was
\nalso found in Articles 141 and 142 which as pointed out in Golak Nath’s
\ncase are couched in such wide and elastic terms as to enable this Court to
\nformulate legal doctrines to meet the ends of justice.\tIn the aftermath of
\nGolak Nath case, we find quite an illuminating and analytical discussion of
\nthe doctrine by Sawant, J. in Managing Director Vs. B. Karunakar (1993 (4)
\nSCC 727).  The learned Judge prefaced the discussion with the following
\nenunciation:-\n<\/p>\n
“It is now well settled that the courts can make the
\nlaw laid down by them prospective in operation to
\nprevent unsettlement of the settled positions, to
\nprevent administrative chaos and to meet the end
\nof justice.”\n<\/p>\n
\t Law reports are replete with cases where past actions and transactions
\nincluding appointments and promotions, though made contrary to the law
\nauthoritatively laid down by the Court were allowed to remain either on the
\nprinciple of prospective overruling or in exercise of the inherent power of
\nthe Court under Article 142.<\/a>  The learned senior counsel Mr. P.P. Rao
\nreminds us that this power is only available to the Supreme Court by virtue
\nof Article 142<\/a> and it is not open to the High Court to neutralize the effect of
\nunconstitutional law by having resort to the principle of prospective
\noverruling or analogous principle.  The argument of the learned counsel,
\nthough not without force, need not detain us for the simple reason that as this
\nCourt is now seized of the matter, can grant or mould the relief, without in
\nany way being  fettered by the limitations which the High Court may have
\nhad.  We are of the view that there is sufficient justification for the
\nprospective application of the law declared in the instant cases for more than
\none reason and if so, the declaration of the High Court to that extent need
\nnot be disturbed.\n<\/p>\n
\tFor nearly one decade the selections made by applying bonus marks
\nto the residents of the concerned districts and the rural areas therein were
\nupheld by the High Court of Rajasthan.\tThe first decision is the case of
\nBaljeet Kaur decided in the year 1991 followed by Arvind Kumar Gochar’s
\ncase decided in 1994.  By the time the selection process was initiated and
\ncompleted, these decisions were holding the field.  However, when the writ
\npetitions filed by Kailash Chand and others came up for hearing before a
\nlearned single Judge, the correctness of the view taken in those two
\ndecisions was doubted and he directed the matters to be placed before the
\nlearned Chief Justice for constituting a full Bench.  By the time this order
\nwas passed on 19.7.1999, we are informed that the select lists of  candidates
\nwere published in many districts.  On account of the stay granted for a
\nperiod of three months and for other valid reasons, further lists were not
\npublished.  It should be noted that in a case where the law on the subject was
\nin a state of flux, the principle of prospective overruling was invoked by this
\nCourt.\tThe decision in Managing Director ECIL Vs. B. Karunakar (supra) is
\nillustrative of this view- point.   In the present case, the legality of the
\nselection process with the addition of bonus marks could not have been
\nseriously doubted either by the appointing authorities or by the candidates in
\nview of the judicial precedents.  The cloud was cast on the said decisions
\nonly after the selection process was completed and the results were declared
\nor about to be declared.  It is, therefore, a fit case to apply the judgment of
\nthe full Bench rendered subsequent to the selection prospectively.   One
\nmore aspect which is to be taken into account is that in almost all the writ
\npetitions the candidates appointed, not to speak of the candidates selected,
\nwere not made parties before the High Court.   May be, the laborious and
\nlong-drawn exercise of serving notices on each and every party likely to be
\naffected need not have been gone through.  At least, a general notice by
\nnewspaper publication could have been sought for or in the alternative, at
\nleast a few of the last candidates selected\/appointed could have been put on
\nnotice; but, that was not done in almost all the cases.\t That is the added
\nreason why the judgment treading a new path should not as far as possible
\nresult in detriment to the candidates already appointed.  We are not so much
\non the question whether the writ petitioners were legally bound to implead
\nall the candidates selected\/appointed  during the pendency of the petitions
\nhaving regard to the fact that they were challenging the notification or the
\npolicy decision of general application; but, we are taking this fact into
\nconsideration to lean towards the view of the High Court that its judgment
\nought to be applied prospectively,  even if the non-impleadment is not a fatal
\nflaw.\n<\/p>\n
\tProspectivity to what extent is the next question.  Counsel argues that
\nwhen once it is accepted in principle that past actions should not be
\nunsettled, there is no rationale in prescribing a cut off date with reference to
\nthe date of judgment, so as to save the appointments already made and to bar
\nthe appointments to be made.  It is contended that the entire selection
\nprocess and the consequential appointments should be out of clutches of the
\njudgment rendered on 18.11.99 and it would be more rational and logical to
\napply it to further selections.\t The fortuitous circumstance of not being in a
\nposition of securing appointment orders for a variety of administrative
\nreasons should not stand in the way of candidates appointed or to be
\nappointed after the date of judgment; otherwise, it would result in injustice
\nand hardship to the selected candidates without any tangible benefit to the
\npetitioners who moved the High Court for relief.  It is pointed out that in
\nsome districts like Chittorgarh, Lok Sabha election programme came in the
\nway of formal appointments orders being issued.\t It is further pointed out
\nthat in any case, if the judgment is to be prospectively applied  as it ought
\nto be, the  application of judgment should be from the date of its
\npronouncement i.e. 18.11.1999 but not from 21.10.99 which is the date of
\ndecision in Deepak Kumar’s case pertaining to a different selection held five
\nyears earlier.\n<\/p>\n
\tThe above argument was countered by the learned counsel appearing
\nfor the original writ petitioners contending that after the judgment of the
\nHigh Court in Deepak Kumar’s case (21.10.1999 is the date of judgment) in
\nwhich similar provision in another circular was struck down, there was
\nneither legal nor moral justification for making further appointments, though
\nthe impugned judgment in  Kailash Chand,  was rendered on  18.11.1999.\tIn
\nthe first SLP filed by Kailash Chand, the senior counsel Mr. Krishnamani
\nraised a subsidiary contention that the High Court was wrong in proceeding
\non the assumption that his client and other similarly situated\tpetitioners
\nwould not have got selected even  if the bonus marks were ignored.  In the
\nSLP, the said petitioner furnished the particulars relating to marks secured
\nby him and some other selected candidates. Quite rightly, the learned
\ncounsel contended that the High Court apparently  could not have looked
\ninto the particulars of marks in each and every case and  it would have been
\nin the fitness of things if it were left to the concerned authorities to go into
\nthe factual details.\n<\/p>\n
\tOne more point which need mention.  Some of the learned counsel
\nargued that the unsuccessful applicants should not be allowed to challenge
\nthe selection process to the extent it goes against their interest, after having
\nparticipated in the selection and waited for the result.  It is contended that the
\ndiscretionary relief under Article 226<\/a> should not be granted to such persons.
\nReliance has been placed on the decision of this Court in Madan Lal Vs.
\nState of J & K 1995 (3) SCC 486 and other cases in support of this
\nargument.  On the other hand, it is contended that in a case of challenge to
\nunconstitutional discrimination, the doctrine of acquiescence, estoppel and
\nthe like does not apply and the writ petitioners cannot be expected to know
\nthe constitutional implications of the impugned circular well before the
\nselections.  We are not inclined to go into this question for the reason that
\nsuch a plea was not raised nor any argument was advanced before the High
\nCourt.\n<\/p>\n
\tHaving due regard to the rival contentions adverted to above and
\nkeeping in view the factual scenario and the need to balance the competing
\nclaims in the light of acceptance of prospective overruling in principle, we
\nconsider it just and proper to confine the relief only to the petitioners who
\nmoved the High Court  and  to make appointments made on or after
\n18.11.1999 in any of the districts subject to the claims of the petitioners.
\nAccordingly, we direct :\n<\/p>\n
1.\tThe claims of the writ petitioners should be considered afresh in the
\nlight of this judgment vis a vis the candidates appointed on or after
\n18.11.99 or those in the select list who are yet to be appointed.   On
\nsuch consideration, if those writ petitioners are found to have\t superior
\nmerit in case the bonus marks of 10% and\/or 5% are excluded, they
\nshould be offered appointments, if necessary, by displacing the
\ncandidates appointed on or after 18.11.1999.\n<\/p>\n
2.\tThe appointments made upto 17.11.1999 need not be reopened and
\nre-considered  in  the\tlight  of  the\tlaw  laid  down\t in this judgment.\n<\/p>\n
3.\tWrit Petition No. 542\/2000  filed in this Court under  Article 32<\/a>  is
\nhereby dismissed as it was filed nearly one year after\tthe judgment of
\nthe High Court and  no explanation has been tendered for not
\napproaching the High Court under Article 226<\/a> at an earlier point of
\ntime.\n<\/p>\n
\tBefore parting, we must say that we have moulded the relief as above
\non a consideration of special facts and circumstances of this case acting
\nwithin the frame-work of powers vested in this Court under Article 142<\/a> of
\nthe Constitution.   In so far as the relief has been granted or modified in the
\nmanner aforesaid, this judgment may not be treated as a binding precedent in
\nany case that may arise in future.\n<\/p>\n
\tAnother parting observation.  While we realize the need to generate
\nbetter employment opportunities to the people of rural backward areas and
\nan affirmative action in this regard is not ruled out, any such action should
\nbe within the framework of constitutional provisions relating to equality.
\nEqualising unequals by taking note of their handicaps and limitations is not
\nimpermissible under the Constitution provided that it seeks to achieve the
\ngoal of promoting overall equality.  However, measures taken by the State
\non considerations of localism are not sanctioned by the constitutional
\nmandate of equality.  As indicated in the judgment, any attempt at giving
\nweightage to the rural candidates should be backed up by scientific study
\nand considerations germane to constitutional guarantee of equality.
\n\tThe appeals arising out of the SLPs are disposed of accordingly. The
\nimpugned judgments of the High Court stand modified to that extent. The
\nwrit petition mentioned above is dismissed.  There shall be no order as to
\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kailash Chand Sharma vs State Of Rajasthan & Ors on 30 July, 2002 Author: P Reddi Bench: D.P. Mohapatra, P.Venkatarama Reddi. CASE NO.: Appeal (civil) 4417 of 2002 PETITIONER: KAILASH CHAND SHARMA Vs. RESPONDENT: STATE OF RAJASTHAN & ORS DATE OF JUDGMENT: 30\/07\/2002 BENCH: D.P. Mohapatra & P.Venkatarama Reddi. JUDGMENT: (Arising […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-249701","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKailash Chand Sharma vs State Of Rajasthan & Ors on 30 July, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kailash-chand-sharma-vs-state-of-rajasthan-ors-on-30-july-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kailash Chand Sharma vs State Of Rajasthan & Ors on 30 July, 2002 - 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