Rajasthan High Court
Puran Mal Swami S/O Prabhu Dayal Swami vs The State Of Rajasthan on 11 November, 2024
Author: Anoop Kumar Dhand
Bench: Anoop Kumar Dhand
[2024:RJ-JP:44915]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No.14474/2024
1. Mohan Lal Sharma S/o Prabhu Dayal Sharma, Aged About
39 Years, R/o Kishanpura, Post Padasoli, Tehsil Bassi,
District Jaipur, Rajasthan.
2. Shiv Charan Gurjar S/o Om Prakash Gurjar, Aged About
31 Years, R/o Kathmana, District Tonk, Rajasthan.
3. Suman D/o Ram Kumar, Aged About 39 Years, R/o 2125,
Sector-1-4, Hisar, Haryana.
4. Arjun Lal Jat S/o Mangu Ram Jat, Aged About 56 Years,
R/o Muwalo Kee Dhani, Tehsil Amer, Bilochi, Jaipur,
Rajasthan.
5. Vipin Kumar Mamodia S/o Subhash Chand, Aged About
35 Years, R/o Vpo Antela, Tehsil Virat Nagar, District
Jaipur, Rajasthan.
6. Priyenka Gurjar D/o Ram Prahlad Gurjar, Aged About 28
Years, R/o Vpo Indergarh, Tehsil Jamwaramgarh, District
Jaipur, Rajasthan.
7. Mazhar Khan S/o Abdurrahman, Aged About 33 Years,
R/o 25501, Nath Ji Ki Bagichi, Paharganj, Ghatgate,
Jaipur, Rajasthan.
8. Deepti Jain D/o Arvind Kumar Jain, Aged About 30 Years,
R/o Ward No. 11, Hindaun Road, Kherli Ganj, Alwar,
Rajasthan.
9. Chandra Shekhar S/o Om Prakash, Aged About 28 Years,
R/o Nayapura, Atpara, District Pali, Rajasthan.
10. Jasoda Kilaka D/o Sugnaram Kilaka, Aged About 30
Years, R/o Ghumanda, Ratangarh, District Churu,
Rajasthan.
11. Sangeeta Nagar D/o Hansraj Nagar, Aged About 28 Years,
R/o Mundla, Tehsil Chhabra, District Baran, Rajasthan.
12. Sunil Kumar S/o Surjeet Singh, Aged About 36 Years, R/o
Ward No. 24, Bishnoi Bass, Khetrapal Mandir Ke Piche,
Rawatsar, District Hanumangarh, Rajasthan.
13. Jyoti Chugh D/o Preetam Dass, Aged About 33 Years, R/o
Ward No. 5, Village Kundalawala, 6 Lnp, Khayaliwala,
Ganganagar, Rajasthan.
14. Kapoor Chand Sain S/o Ghayan Chand Sain, Aged About
32 Years, R/o Sodala, Dausa, Rajasthan.
15. Monika Choudhary D/o Sharwan Kumar, Aged About 27
Years, R/o Ward No. 2, Bambalwas, 2 Bbm,
Hanumangarh, Rajasthan.
----Petitioners
Versus
1. The State Of Rajasthan, Through Its Principal Secretary,
School Education Department, Govt. Of Rajasthan,
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Secretariat, Jaipur.
2. The Director, Secondary Education, Rajasthan, Bikaner.
----Respondents
Connected With
S.B. Civil Writ Petition No.14208/2024
1. Priyanka Yadav D/o Bhag Chand Yadav, Aged About 36
Years, R/o 26, Sushant City-I, Kalwar Road, Jhotwara,
Jaipur, Rajasthan.
2. Taresh Chandra Gupta S/o Chandra Kant Gupta, Aged
About 38 Years, R/o Plot No. 48, Behind Govt. Iti College,
Moti Nagar, Alwar, Rajasthan.
3. Sanjeev Kumar Saini S/o Banwari Lal Saini, Aged About
48 Years, R/o Mohalla Khohara, Near Ashok Circle, Alwar
Rajasthan.
4. Richa Sharma D/o Narendra Swaroop Sharma, Aged
About 38 Years, R/o 427, Bhatt Bhawan, Shuklapuri,
Mangla Marg, Brahmpuri, Jaipur, Rajasthan.
—-Petitioners
Versus
1. The State Of Rajasthan, Through Its Principal Secretary,
School Education Department, Govt Of Rajasthan,
Secretariat, Jaipur.
2. The Director, Secondary Education, Rajasthan Bikaner.
—-Respondents
S.B. Civil Writ Petition No.14246/2024
1. Puran Mal Swami S/o Prabhu Dayal Swami, Aged About
38 Years, R/o Mohan Das Ki Dhani, Kishor Pura, Sikar,
Rajasthan.
2. Arun Sarswat S/o Jagmohan Sarswat, Aged About 42
Years, R/o C-2, Janakpuri, Dhawas, Jaipur, Rajasthan.
3. Vikas Oswal S/o Mali Ram, Aged About 43 Years, R/o 205,
Rani Sati Nagar, Shyam Nagar, Ajmer Road, Jaipur,
Rajasthan.
4. Nehru Lal Meena S/o Ramshay Meena, Aged About 47
Years, R/o Village Biharipura, Mansar Kheri, Jaipur,
Rajasthan.
5. Prabhu Narayan Meena S/o Kalyan Sahay Meena, Aged
About 39 Years, R/o Village Hardi, Post Kunthada Khurd,
Lahariyo Ki Dhani, Jaipur, Rajasthan.
6. Surendra Kumar Meena S/o Jay Narayan Meena, Aged
About 34 Years, R/o Lamba Ki Dhani, Dhamsya, Jhajhwar,
Jaipur, Rajasthan.
—-Petitioners
Versus
1. The State Of Rajasthan, Through Its Principal Secretary,
School Education Department, Govt. of Rajasthan,
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Secretariat, Jaipur.
2. The Director, Secondary Education, Rajasthan, Bikaner.
—-Respondents
S.B. Civil Writ Petition No.14276/2024
1. Suman Khambra D/o Girdhari Khambra, Aged About 42
Years, R/o R-225, Narayan Vihar, R-Block, Mansarovar,
Jaipur, Rajasthan.
2. Sumna Devi D/o Jai Chand, Aged About 33 Years, R/o
Ward No. 9, 34 Rwd, Gandheli, Hanumangarh, Rajasthan.
3. Trapti Chaudhary D/o Gambhir Singh, Aged About 34
Years, R/o 8, Bapu Nagar, Bharatpur, Rajasthan.
4. Anita D/o Dharamvir Singh, Aged About 32 Years, R/o C/o
Madhu Sudan, 236, Rewari, Haryana.
5. Neelam D/o Suman Singh, Aged About 29 Years, R/o
Punjabi Mohalla, Khoh, Bharatpur, Rajasthan.
6. Rohitash Kumar Meena S/o Badri Prasad Meena, Aged
About 29 Years, R/o Village Govindpura, Post Kishori,
Tehsil Thanagazi, District Alwar, Rajasthan.
7. Sameem Khan S/o Ruzdar Khan, Aged About 29 Years,
R/o Village Niwali, Tehsil Ramgarh, District Alwar,
Rajasthan.
8. Sarita D/o Vastu Ram, Aged About 41 Years, R/o Ward
No. 6, Nijampura, Jhunjhunu, Rajasthan.
9. Pramod Kumar Sharma S/o Nathu Lal Sharma, Aged
About 38 Years, R/o Chomun, Govindgarh, Jaipur,
Rajasthan.
10. Tejpal Meena S/o Chhaju Ram Meena, Aged About 33
Years, R/o Village Gopalpura, Post Kishori, Tehsil
Thanagazi, District Alwar, Rajasthan.
11. Om Prakash Alwariya S/o Chet Ram Alwariya, Aged About
40 Years, R/o Ward No. 21, Nagaji Ki Gaur, Mohalla
Buchahera, Post Kotputli, District Jaipur, Rajasthan.
12. Devendar S/o Lal Chand, Aged About 26 Years, R/o Ward
No. 8, Chak 2 Ttd, Thethar, District Sriganganagar,
Rajasthan.
13. Amar Singh S/o Hari Singh, Aged About 35 Years, R/o
New Abada Bera, Pali, Rajasthan.
14. Ratan Lal Meghwal S/o Bheru Lal Meghwal, Aged About
31 Years, R/o Sangwa, District Udaipur, Rajasthan.
15. Sandeep Kumar S/o Nanu Ram, Aged About 32 Years, R/o
Ward No. 07, Ellenabad, Sirsa, Haryana.
16. Saurabh Kumar S/o Gangi Ram, Aged About 26 Years,
R/o Petrol Pump Wali Sadak Ke Piche, Kathumar, Dsitrict
Alwar, Rajasthan.
17. Bintosh Kumari Nagar D/o Dwarka Lal Nagar, Aged About
27 Years, R/o Vpo Shahpura, Tehsil Mangrol, District
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Baran, Rajasthan.
18. Anjum Parveen D/o Haneef Mohammad, Aged About 31
Years, R/o Ward No. 15, Subhash Colony, Nainwa, District
Bundi, Rajasthan.
—-Petitioners
Versus
1. The State Of Rajasthan, Through Its Principal Secretary,
School Education Department, Govt. Of Rajasthan,
Secretariat, Jaipur.
2. The Director, Secondary Education, Rajasthan, Bikaner.
----Respondents
For Petitioner(s) : Mr. R.P. Saini
Mr. Rishi Raj Maheshwari
Mr. Gopesh Kumar
Mr. Aamir Khan
For Respondent(s) : Mr. Rajendra Prasad, Advocate
General assisted by
Ms. Harshita Thakral
Mr. B.S. Chhaba, AAG assisted by
Mr. Avinash Choudhary
JUSTICE ANOOP KUMAR DHAND
Order
Reserved on 24.10.2024
Pronounced on 11.11.2024
Reportable
1. The law of the land must be enforced in a manner that puts
all citizens on the same footing. If the law favours any citizen on
any unreasonable ground such as class, status, gender or place of
residence etc., the law is unfair and fails to perform its purpose,
which is to uphold justice. Every subject of a state must be
considered an equal before law and no subject must be treated
with some special consideration on an unreasonable ground such
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as gender, race, class, religion or place of residence, etc. This
concept can be summed up in the phrases “equality before law”
and “equal protection of law”.
2. This concept can also be found in Article 7 of the Universal
Declaration of Human Rights, of which India was a signatory. This
provision states that “All are equal before the law and are entitled
without any discrimination to equal protection of the law. All are
entitled to equal protection against any discrimination in violation
of this Declaration and against any incitement to such
discrimination.”
3. The legal issue involved in these writ petitions is “whether 10
additional bonus marks can be granted to the
candidates/personnels, for opting their present place of posting?”
Whether grant of additional bonus marks to such candidates
amounts to violation of the Fundamental Rights of other
candidates contained under Articles 14, 15 & 16 of the
Constitution of India? It is in this background the issue involved in
these writ petitions is required to be considered.
4. Common cause of action and identical question of law and
facts are involved in these writ petitions, hence, with the consent
of counsel for the parties, final arguments have been heard and
the same are being decided by this common order.
5. For the sake of convenience, the facts and prayer pleaded in
S.B. Civil Writ Petition No.14474/2024 are taken into
consideration.
6. By way of filing of this writ petition, a challenge has been
made against condition No.9 of the advertisement issued by the
Director, Secondary Education on 11.07.2024 for selection and
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appointment on the post of Teachers in the Mahatma Gandhi
Government English Medium Schools and Swami Vivekanand
Government Model Schools (SVGMS) and all other Government
English Medium Schools.
7. Learned counsel for the petitioners submits that as per
Condition No.9 of the advertisement, for selection in English
Medium Schools, a written examination would be organised by the
respondent-department. The said written examination would
consist of 100 marks and if the personnel/candidate gives the
option of posting to the district where he/she is currently posted,
10 additional bonus marks will be given to him/her for
selection/posting in the said district. Learned counsel submits that
the aforesaid condition is not in consonance with Rule 10 of the
Rajasthan Civil Services (Special Selection and Special Conditions
of Service for Appointment of Personnel in the English Medium
Schools) Rules, 2023 (for short ‘the Rules of 2023’). Learned
counsel submits that it is settled proposition of law that a
condition in the advertisement cannot be contrary to the Rules
and Regulations of Service and Appointment. Learned counsel
submits that without there being any provision for grant of bonus
marks under the Rules, the impugned Condition No.9 has been
incorporated in the advertisement. Learned counsel submits that,
under these circumstances, the impugned condition is not
sustainable and is liable to be quashed and set aside by this Court.
Learned counsel submits that the aforesaid action of the
respondents is in violation of Article 14 of the Constitution of
India.
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8. In support of his submissions, he has placed reliance upon
the judgment passed by the Apex Court in the cases of Kailash
Chand Sharma Versus State of Rajasthan & Others reported
in (2002) 6 SCC 562 and The Employees’ State Insurance
Corporation Versus Union of India & Others reported in 2022
SCC ONLINE SC 70.
9. Per contra, learned Advocate General opposed the
arguments raised by learned counsel for the petitioners and
submitted that the advertisement in question has been issued in
consonance with the Rules of 2023. Learned Advocate General
submits that Rule 7 deals with Source of Selection and Rule 8
deals with Eligibility for selection. He submits that the entire
selection process is based on these Rules and unless and until
legal validity of the same is challenged by the petitioners, they are
not entitled to get any relief. He submits that the selection
process, arising out of the advertisement in question, is not a
general recruitment process rather it is a recruitment procedure
adopted by the government to identify suitability of already
employed Teachers/other staff members, and as per the Rules,
preference is given to the candidates, who opt for the same
district where they are currently posted. The condition of awarding
10 additional bonus marks has been put in the advertisement for
granting the bonus marks to those Teachers, who are posted in
the same district, which they have opted for. He submits that
condition No.9 does not suffer from any infirmity, hence, under
these circumstances, interference of this Court is not warranted.
10. Heard and considered the submissions made at Bar and
perused the material available on record.
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11. In exercise of the powers conferred by the proviso to Article
309 of the Constitution of India, the Governor of the State of
Rajasthan made the Rajasthan Civil Services (Special Selection
and Special Conditions of Service for Appointment of Personnel in
the English Medium Schools) Rules, 2023 (for short “the Rules of
2023”), wherein Rule 6 provides for determination of vacancies for
the post of Teacher in English Medium Schools. Rule 7 provides for
Source of Selection. Rule 8 provides for Eligibility for Selection.
Rule 10 provides for Criteria for Selection. Rule 11 provides for
Procedure for Selection and Rule 14 provides for Other conditions
of service. For ready reference, these Rules are extracted as
under:-
“6. Determination of vacancies.- The
Appointing Authority shall determine on 1 st April
every year, the number of vacancies anticipated to be
filled in English Medium Schools of each district during
the year or as and when such contingency arises.
7. Source of selection.- Selection for
appointment to the posts as specified in column
number 2 of Schedule-I, after the commencement of
these rules shall be made on the recommendation of
the Selection Committee from amongst the eligible
personnel of the department, preferably of the district
in which vacancies are to be filled, mentioned in
column number 3 of Schedule-I.
8. Eligibility for selection.- Only such persons
shall be eligible for consideration for appointment to
the posts specified in Schedule-I, who are incumbents
of the department, preferably of the district in which
vacancies are to be filled, and eligible for(Downloaded on 11/11/2024 at 10:47:44 PM)
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on the posts specified in Schedule-I.
10. Criteria for selection.- Selection shall be
made by the Selection Committee, concerned after an
interview having regard to the personality, character,
previous record of service and previous experience in
respective services or any other criteria of selection
e.g. proficiency in English language communication
skill and teaching his/her subject well through English
medium or whatever the committee considers to be
appropriate. The Director shall be empowered to
formulate, amend and issue the further detailed
instruction as per the exigency.
11. Procedure for selection.- (1) As soon as it
is decided that selection is to be made to fill a certain
number of vacant posts as specified in column
number 2 of the Schedule-I, from amongst the
eligible candidate mentioned in column number 3 of
the Schedule-I, the Director or any other officer
authorized for this purpose shall invite application
from all eligible candidates by a stipulated date
through a way as he considers to be appropriate.
(2) The eligible candidates may apply for the
posts as advertised by the Appointing Authority in
accordance with the procedure as decided by the
Director.
(3) The candidates may mention as many
choices as decided for the time being for posting on
the advertised posts/vacancies.
(4) After screening of the applications received,
pending departmental inquiries, prosecution reports,
other service records or any other information which
is considered to be appropriate may be sought. After
due consideration over such information, the decision
of the Appointing Authority shall be final.
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(5) The Appointing Authority shall issue the
schedule for interview of the eligible candidates as per
their post/subjects. Selection of the candidates shall
be done on the basis of merit list prepared in
accordance with the performance in the interview and
the norms as prescribed by the Director. The selection
of the candidates, equal to the number of vacancies
likely to be filled in, shall be made as per their
suitability and a list of the names of the suitable
candidates shall be prepared accordingly:
Provided that the Selection Committee may, if
suitable persons are available, keep on reserve list
more candidates whose number shall not exceed 50%
of the vacancies determined. The name of such
candidates may be considered for posting until new
selection process is initiated.
14. Other conditions of service.- (1)
Personnel shall be posted after selection to the post
enumerated in Schedule-I generally for a period of
one year which shall be extendible by a process
specified by the Director after review of the
performance of the services rendered. The Appointing
Authority shall have right of relieving a personnel for
office of the previous Appointing Authority before
completion of the such service duration without
assigning any reasons. The Appointing Authority other
than the Director shall seek approval from the
Director before such action.
(2) Annual review of the performance of all
personnel posted after selection in the English
Medium Schools shall be done by the Appointing
Authority by the manner and process specified by the
Director, from time to time.
(3) As soon as the personnel posted after
selection in the English Medium Schools is promoted
to a higher post in the parent cadre, he/ she shall be
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deemed reverted for posting on promotion. In case of
having the desirable qualifications for posting in the
English Medium Schools, the Appointing Authority
may take a decision for retention of posting of the
promoted personnel in any of the English Medium
Schools in accordance with the vacancies and
exigency.
(4) Except as provided in these rules, other
service conditions to the post as specified in column 2
of Schedule-I, shall be regulated by other rules
applicable to the employees of the State Government
made under the proviso to Article 309 of the
Constitution of India.
(5) An additional allowance may be made
admissible as an incentive as per exigency to
personnel to be posted in the schools situated in
remote rural areas as specified in Schedule-II, if
adequate number of candidates does not apply for the
post concerned, as specified by the State
Government, from time to time.
(6) The personnel working in the English Medium
Schools may be posted/transferred to any other
English Medium Schools across the state according to
their post/subject. The original seniority of the
candidate concerned shall remain unaffected due to
the said change in posting.
(7) In case of posting of the personnel working
on posts whose seniority is maintained at
range/district level, even after selection in the English
Medium Schools of other range/district jurisdiction,
the seniority of the candidate concerned shall be
protected in the parent range/district and they shall
be entitled to a lien in the parent range/district for
further promotion.
(8) In case of the posts where seniority is
maintained at range/district level, the probationer
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trainees/probationers being posted after selection in
the English Medium Schools of other range/district,
the confirmation after successful completion of the
probation period shall be done by the previous
Appointing Authority of parent range/district where
his/her seniority is maintained before being posted in
the English Medium Schools.
(9) The incumbents of the Rajasthan Voluntary
Rural Service Rules, 2010 shall not be eligible for
posting in the urban/municipal areas.”
Perusal of the entire scheme of Rules of 2023 nowhere
indicates the provision for grant of 10 additional bonus marks to
the Teacher/personnel, as provided in the condition No.9 of the
advertisement.
12. The Director, Secondary Education, Rajasthan, Bikaner
issued an advertisement on 11.07.2024 for selection and
appointment of various personnel/Teachers in Mahatama Gandhi
Government (English Medium) Schools, Swami Vivekanand
Government Model Schools (SVGMS) and all other Government
English Medium Schools of the State. Several terms and conditions
were imposed, for the purpose of selection and appointment
wherein Condition No.9 was incorporated in the advertisement,
which is extracted In English Language as under:-
“9- A written examination would be conducted by the
department for selection in English Medium Schools,
consisting of 100 marks and in case the employee gives
option of his/her district of posting, 10 additional bonus
marks would be given for selection/posting in the said
district.”
13. Feeling aggrieved and dissatisfied by the above condition
No.9 of the advertisement, the petitioners have approached this
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Court by way of filing of the present batch of writ petitions mainly
on two grounds; (1) Condition No.9 is not in consonance and
conformity with Rules of 2023; and (2) grant of 10 additional
bonus marks causes distinction between two equals, because no
particular benefit should be granted to the personnel on the basis
of opting their present place of posting and grant of such 10
additional bonus marks amounts to violation of fundamental
rights, contained under Articles 14 and 16 of the Constitution of
India.
14. Rule 10 of the Rules of 2023 deals with the criteria for
selection and the same does not prescribe any provision for
granting 10 additional bonus marks to the personnel on the basis
of opting the same districts wherein they are presently posted.
There cannot be any distinction between the personnel who have
opted and personnel who have not opted for posting more
particularly when the teaching or working experience acquired by
each one of them is same and common. What is required under
the Scheme of Rules of 2023 is that the incumbent must have
previous record of service and experience e.g. proficiency in
English Language & communication skill of teaching his/her
subject well through English Medium.
It is worthy to note here that no distinction has been made
by the Rule making authority between different personnel, posted
in different schools, in different districts of the State of Rajasthan.
No provision for grant of 10 additional bonus marks has been kept
under the scheme of Rules of 2023. Hence, the act of granting 10
additional bonus marks to personnel of a particular district is
arbitrary, wholly unjustified and contrary to the scheme of Rules of
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2023. Hence, the condition No.9 of the advertisement is not
sustainable in the eye of law.
15. As per the settled principles of service jurisprudence, if there
is any conflict between the terms & conditions provided in any
advertisement and Rules or Regulations of service and
appointment, then the provision contained under the Rules or
Regulations shall prevail.
16. The Hon’ble Apex Court in the case of the Employees’ State
Insurance Corporation (supra) has held in para 20 as under:-
“20. The advertisements issued by the appellant
mentioned that the DACP Scheme would be applicable
for its recruits. However, it is a settled principle of
service jurisprudence that in the event of a conflict
between a statement in an advertisement and service
regulations, the latter shall prevail. In Malik Mazhar
Sultan v. U.P. Public Service Commission23 a two-judge
Bench of this Court clarified that an erroneous
advertisement would not create a right in favour of
applicants who act on such representation. The Court
considered the eligibility criteria for the post of Civil
Judge (Junior Division) under the U.P. Judicial Service
Rules, 2001 against an erroneous advertisement issued
by the U.P. Public Service Commission and held:
“21. The present controversy has arisen
as the advertisement issued by PSC stated that
the candidates who were within the age on 1-
7-2001 and 1-7-2002 shall be treated within
age for the examination. Undoubtedly, the
excluded candidates were of eligible age as per
the advertisement but the recruitment to the
service can only be made in accordance with
the Rules and the error, if any, in the
advertisement cannot override the Rules and
create a right in favour of a candidate if
otherwise not eligible according to the Rules.
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basis of the advertisement. If the interpretation
of the Rules by PSC when it issued the
advertisement was erroneous, no right can
accrue on basis thereof. Therefore, the answer
to the question would turn upon the
interpretation of the Rules.”
17. Similarly in the case of Ashish Kumar Vs. State of Uttar
Pradesh reported in 2018 (3) SCC 55, the Hon’ble Supreme
Court has held that if any part of the advertisement is contrary to
the statutory Rules, then the later would prevail, as has been held
in para 27 of the judgment, which reads as under:-
“27. Any part of the advertisement which is
contrary to the statutory rules has to give way to the
statutory prescription. Thus, looking to the qualification
prescribed in the statutory rules, the appellant fulfils the
qualification and after being selected for the post
denying appointment to him is arbitrary and illegal. It is
well settled that when there is variance in the
advertisement and in the statutory rules, it is the
statutory rules which take precedence….”
18. Looking to the proposition of law as laid down by the Hon’ble
Apex Court, it can be safely concluded that there is a conflict
under the scheme of the Rules of 2023 and Condition No.9 of the
advertisement with regard to grant of 10 additional bonus marks
to the candidates/personnel, for opting their present place of
posting. The Condition No.9 is not in consonance and conformity
with the Scheme of Rules of 2023. Hence, the impugned Condition
No.9 of the advertisement dated 11.07.2024 is legally not
sustainable in the eye of law.
19. Now this Court proceeds to decide the issue “whether the
condition No.9 of the advertisement causes any discrimination
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between two equals on the basis of giving option to choose their
present place of posting for providing them 10 additional bonus
marks or not?”
20. The Constitution of India offers all the citizens, individually
and collectively various fundamental rights. All these rights are
guaranteed under Part III of the Constitution of India.
Article 14 defines Equality before Law. Article 15 deals with
Prohibition of Discrimination on the grounds of religion, race,
caste, sex or place of birth and Article 16 says that there would be
equality of opportunity in the matters of public employment.
These Articles of the Constitution of India are extracted as under:-
“14. Equality before law.–The State shall not
deny to any person equality before the law or the
equal protection of the laws within the territory of
India.
15. Prohibition of discrimination on grounds
of religion, race, caste, sex or place of birth.–(1)
The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth
or any of them.
(2) No citizen shall, on grounds only of religion,
race, caste, sex, place of birth or any of them, be
subject to any disability, liability, restriction or
condition with regard to–
(a) access to shops, public restaurants, hotels
and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads
and places of public resort maintained wholly or partly
out of State funds or dedicated to the use of the
general public.
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[2024:RJ-JP:44915] (17 of 33) [CW-14474/2024]
(3) Nothing in this article shall prevent the State
from making any special provision for women and
children.
(4) Nothing in this article or in clause (2) of
article 29 shall prevent the State from making any
special provision for the advancement of any socially
and educationally backward classes of citizens or for
the Scheduled Castes and the Scheduled Tribes.]
(5) Nothing in this article or in sub-clause (g) of
clause (1) of article 19 shall prevent the State from
making any special provision, by law, for the
advancement of any socially and educationally
backward classes of citizens or for the Scheduled
Castes or the Scheduled Tribes in so far as such special
provisions relate to their admission to educational
institutions including private educational institutions,
whether aided or unaided by the State, other than the
minority educational institutions referred to in clause
(1) of article 30.]
(6) Nothing in this article or sub-clause (g) of
clause (1) of article 19 or clause (2) of article 29 shall
prevent the State from making,–
(a) any special provision for the advancement of
any economically weaker sections of citizens other
than the classes mentioned in clauses (4) and (5); and
(b) any special provision for the advancement of
any economically weaker sections of citizens other
than the classes mentioned in clauses (4) and (5) in so
far as such special provisions relate to their admission
to educational institutions including private educational
institutions, whether aided or unaided by the State,
other than the minority educational institutions
referred to in clause (1) of article 30, which in the case
of reservation would be in addition to the existing
reservations and subject to a maximum of ten per
cent. of the total seats in each category.
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[2024:RJ-JP:44915] (18 of 33) [CW-14474/2024]
Explanation.–For the purposes of this article and
article 16, “economically weaker sections” shall be
such as may be notified by the State from time to time
on the basis of family income and other indicators of
economic disadvantage.
16. Equality of opportunity in matters of
public employment.–(1) There shall be equality of
opportunity for all citizens in matters relating to
employment or appointment to any office under the
State.
(2) No citizen shall, on grounds only of religion,
race, caste, sex, descent, place of birth, residence or
any of them, be ineligible for, or discriminated against
in respect of, any employment or office under the
State.
(3) Nothing in this article shall prevent
Parliament from making any law prescribing, in regard
to a class or classes of employment or appointment to
an office 1 [under the Government of, or any local or
other authority within, a State or Union territory, any
requirement as to residence within that State or Union
territory] prior to such employment or appointment.
(4) Nothing in this article shall prevent the State
from making any provision for the reservation of
appointments or posts in favour of any backward class
of citizens which, in the opinion of the State, is not
adequately represented in the services under the
State.
(4A) Nothing in this article shall prevent the
State from making any provision for reservation 3 [in
matters of promotion, with consequential seniority, to
any class] or classes of posts in the services under the
State in favour of the Scheduled Castes and the
Scheduled Tribes which, in the opinion of the State,
are not adequately represented in the services under
the State.
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[2024:RJ-JP:44915] (19 of 33) [CW-14474/2024]
(4B) Nothing in this article shall prevent the
State from considering any unfilled vacancies of a year
which are reserved for being filled up in that year in
accordance with any provision for reservation made
under clause (4) or clause (4A) as a separate class of
vacancies to be filled up in any succeeding year or
years and such class of vacancies shall not be
considered together with the vacancies of the year in
which they are being filled up for determining the
ceiling of fifty per cent. reservation on total number of
vacancies of that year.
(5) Nothing in this article shall affect the
operation of any law which provides that the
incumbent of an office in connection with the affairs of
any religious or denominational institution or any
member of the governing body thereof shall be a
person professing a particular religion or belonging to
a particular denomination.
(6) Nothing in this article shall prevent the State
from making any provision for the reservation of
appointments or posts in favour of any economically
weaker sections of citizens other than the classes
mentioned in clause (4), in addition to the existing
reservation and subject to a maximum of ten per cent.
of the posts in each category.”
21. As per Article 16(1) of the Constitution of India, there shall
be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.
22. The argument raised by the respondents justifying the grant
of 10 additional bonus marks to the personnel opting the district
of their current place of posting is liable to be rejected on the plain
terms of Article 16(3) of the Constitution of India. The attempts to
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[2024:RJ-JP:44915] (20 of 33) [CW-14474/2024]
prefer candidates of a local area in the State were nipped in the
bud by the Hon’ble Apex Court since long past.
23. Being a resident of a particular area or posted in a particular
place itself–be it in a State or in a particular area, cannot be a
ground to accord preferential treatment or reservation, save as
provided under Articles 14 and 16 of the Constitution of India.
24. The issue of grant of bonus marks to the candidates of
particular districts and rural areas came up before the Hon’ble
Apex Court in the case of Kailash Chand Sharma (supra) and
the same was dealt with and decided in Paras 14 to 19 and 28, 31
as under:-
“14. Before proceeding further we should steer clear of
a misconception that surfaced in the course of
arguments advanced on behalf of the State and some
of the parties. Based on the decisions which
countenanced geographical classification for certain
weighty reasons such as socio-economic backwardness
of the area for the purpose of admissions to
professional colleges, it has been suggested that
residence within a district or rural areas of that district
could be a valid basis for classification for the purpose
of public employment as well. We have no doubt that
such a sweeping argument which has the overtones of
parochialism is liable to be rejected on the plain terms
of Article 16(2) and in the light of Article 16(3). An
argument of this nature flies in the face of the
peremptory language of Article 16(2) and runs counter
to our constitutional ethos founded on unity and
integrity of the nation. Attempts to prefer candidates
of a local area in the State were nipped in the bud by
this Court since long past. We would like to reiterate
that residence by itself – be it be within a State region,(Downloaded on 11/11/2024 at 10:47:44 PM)
[2024:RJ-JP:44915] (21 of 33) [CW-14474/2024]district or lesser area within a district cannot be a
ground to accord preferential treatment or reservation,
save as provided in Article 16(3). It is not possible to
compartmentalize the State into Districts with a view
to offer employment to the residents of that District on
a preferential basis. At this juncture it is appropriate to
undertake a brief analysis of Article 16.
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 allied Article 14 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 class or
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 favour of any backward class of citizens which
is not adequately represented in the services under
the State. The 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 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(Downloaded on 11/11/2024 at 10:47:44 PM)
[2024:RJ-JP:44915] (22 of 33) [CW-14474/2024]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. Coming to the first aspect, it must be noticed
that the prohibitory mandate under Article 16(2) is not
attracted if the alleged discrimination is on grounds
not merely related to residence, but the factum of
residence is only taken into account in addition to
other relevant factors. This, in effect, is the import of
the expression ‘only’.
16. Let us now turn our attention to some of the
decided cases As far back as in 1969 a Constitution
Bench of this Court in A.V.S. Narasimha Rao v. State of
A.P.: [1970] 1 SCR 115 declared that the law enacted
by the Parliament in pursuance of Clause (3) of Article
16 making a special provision for domicile within the
Telegana region of the State of Andhra Pradesh for the
purpose of public employment within that region and
the rules made thereunder as ultra vires the
Constitution. Pursuant to the enabling power conferred
under Section 3 of the Public Employment
(Requirement as to Residence) Act, Rules were made
making a person ineligible for appointment to a post
within the Telengana area under the State Government
of A.P. or to a post under a local authority in the said
area unless he has been continuously residing within
the said area for a period of not less than 15 years
immediately proceeding the prescribed date. The
Government issued an order relieving all non-domicile
the persons appointed on or after 1.11.1956 to certain
categories of posts reserved for domiciles of
Telecngana under the A.P. public employment
(Requirement as to Residence) Rules. Such incumbent
of post was to be employed in the Andhra region by(Downloaded on 11/11/2024 at 10:47:44 PM)
[2024:RJ-JP:44915] (23 of 33) [CW-14474/2024]creating a supernumerary post, if necessary. This
legislative and executive action was struck down by
this Court. After referring to Article 16, the Court
observed:
“The intention here is to make every office or
employment open and available to every citizen, and
inter alia to make offices or employment in one part of
India open to citizens in all other parts of India. The
third clause then makes an exception…..
The legislative power to create residential
qualification for employment is thus exclusively
conferred on Parliament. Parliament can make any law,
which prescribes any requirement as to residence
within the State or Union territory prior to employment
or appointment to an office in that State or Union
territory. Two questions arise here, firstly, whether
Parliament, while prescribing the requirement, may
prescribe the requirement of residence in a particular
part of the State and, secondly, whether Parliament
can delegate this function by making a declaration and
leaving the details to be filled in by the rule making
power of the Central and State Governments.”
17. The argument that a sweeping power was given to
the Parliament to make any law as regards residential
requirement was replied thus :
“By the first clause equality of opportunity in
employment or appointment to an office is guaranteed.
By the second clause there can be no discrimination,
among other things, on the ground of residence.
Realising, however, that sometimes local sentiments
may have to be respected or sometimes an inroad
from more advanced States into less developed States
may have to be prevented, and a residential
qualification may, therefore, have to be prescribed, the
exception in Clause (3) was made. Even so, that
clause spoke of residence within the State. The claim(Downloaded on 11/11/2024 at 10:47:44 PM)
[2024:RJ-JP:44915] (24 of 33) [CW-14474/2024]of Mr. Setalvad that Parliament can make a provision
regarding residence in any particular part of a State
would render the general prohibition lose all its
meaning. The words ‘any requirement’ cannot be read
to warrant something which could have been said
more specifically. These words bear upon the kind of
residence or its duration rather than its location within
the State. We accept the argument of Mr. Gupte that
the Constitution, as it stands, speaks of a whole State
as the venue for residential qualification and it is
impossible to think that the Constituent Assembly was
thinking of residence in Districts, Taluqas, cities, towns
or villages. The fact that this clause is an exception
and came as un-amendment must dictate that a
narrow construction upon the exception should be
placed as indeed the debates in the Constituent
Assembly also seem to indicate.”
18. Thus, this Court was not inclined to place too wide
an interpretation on Article 16(3), keeping broadly in
view the constitutional philosophy.
19. In Pradeep Jam v. Union of India:
(1984)IILLJ481SC though the Court was concerned
with the question whether residential requirement or
institutional preference in admissions to technical and
medical colleges can be constitutionally permissible in
the light of Article 15(1) and 15(4) Bhagwati, J.
speaking for the Court expressed his prima facie
opinion thus as regards residential acquirement in the
field of public employment :
“We may point out at this stage that though
Article 15(2) bars discrimination on grounds, not only
of religion, race, caste or sex but also on place of
birth, Article 16(2) goes further and provides that no
citizen shall on grounds only of religion, race, caste,
sex, descent, place of birth, residence or any of them
be ineligible for or discriminated against in State(Downloaded on 11/11/2024 at 10:47:44 PM)
[2024:RJ-JP:44915] (25 of 33) [CW-14474/2024]employment. So far as employment under the State or
any local or other authority is concerned, no citizen
can be given preference nor can any discrimination be
practised against him on the ground only of residence.
It would thus appear that residential requirement
would be unconstitutional as a condition of eligibility
for employment or appointment to an office under the
State….. But, Article 16(3) provides an exception to
this rule by laying down that Parliament may make a
law “prescribing, in regard to a class or classes of
employment or appointment to an office under the
government of or any local or other authority in, a
State or Union Territory, any requirement as to
residence within that State or Union territory prior to
such employment or appointment.” Parliament alone is
given the right to enact an exception to the ban on
discrimination based on residence and that too only
with respect to positions within the employment of a
State Government. But even so, without any
parliamentary enactment permitting them to do so
many of the State Governments have been pursuing
policies of localism since long and these policies are
now quite widespread. Parliament has in fact exercised
little control over these policies formulated by the
States. The only action, which Parliament has taken
under Article 16(3) giving if the right to set a
residence requirement has been the enactment of the
Public Employment (requirement as to Residence) Act,
1957…..
There is therefore, at present no parliamentary
enactment permitting preferential policies based on
residence requirement except in the case of Andhra
Pradesh, Manupur, Tripura and Himachal Pradesh
where the Central government has been given the
right to issue directions setting residence requirements
in the subordinate services. Yet, in the face of Article(Downloaded on 11/11/2024 at 10:47:44 PM)
[2024:RJ-JP:44915] (26 of 33) [CW-14474/2024]16(2) some of the States are adopting ‘sons of the soil’
policies prescribing reservation or preference based on
domicile or residence requirement for employment or
appointment to an office under the Government of a
State or any local or other authority or public sector
corporation or any other corporation which is an
instrumentality or agency of the State. Prima facie this
would seem to be constitutionally impermissible
though we do not wish to express any definite opinion
upon it, since it does not directly arise for
consideration in these writ petitions and civil appeal.”
28. The justifiability of the plea stemming from the
premise that uplifting the rural people is an affirmative
action to improve their lot can be tested from the
concrete situation which confront us in the present
cases. We are here concerned with the selections to
the posts of teachers of primary schools, the minimum
qualification being SCC coupled with basic training
course in teaching. Can the Court proceed on the
assumption that the candidates residing in the town
areas with their education in the schools or colleges
located in the towns or its peripheral areas stand on a
higher pedestal than the candidates who had studied
in the rural area schools or colleges? Is the latter
comparatively a disadvantaged and economically
weaker segment when compared to the former? We do
not think so. The aspirants for the teachers jobs in
primary schools–be they from rural area or town area
do not generally belong to affluent class. Apparently
they come from lower middle class or poor
background. By and large, in the pursuit of education,
they suffer and share the same handicaps as their
fellow citizens in rural areas. It cannot be said that the
applicants from non-rural areas have access to best of
the schools and colleges which the well to do class
may have. Further, without any data, it is not possible
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[2024:RJ-JP:44915] (27 of 33) [CW-14474/2024]
to presume that the schools and colleges located in the
towns-small or big and their peripheral areas are much
better qualitatively, that is to say, from the point of
view of teaching standards or infrastructure facilities
so as to give an edge to the town candidates over the
rural candidates.
31. The two grounds pleaded in justification of
preferential treatment accorded to rural area
candidates found favour with the Division Bench of the
High Court in Baljit Kaur’s case 1992 WLR Raj. 83 and
Arvind Kumar Gochar’s case (decided on 6.4.94). Shri
Rajeev Dhawan appearing for the selected candidates
who have filed SLP (SIC) No. 10780/2001, did his best
to support the impugned circular mainly on the second
ground, namely, better familiarity with the local
dialect. The learned counsel contends that when the
teachers are being recruited to serve in Gram
Panchayat area falling within the concerned Panchayat
Samiti, those hailing from the particular district and
the rural areas of that district are better suited to
teach the students within that district and the
Panchayat areas comprised therein. He submits that
the local candidates can get themselves better
assimilated into the local environment and will be in a
better position to interact with the students at primary
level. Stress is laid on the fact that though the
language/mother tongue is the same, the dialect
varies from district to district and even with the
district. By facilitating selection of local candidates to
serve the Panchayat run schools, the State has not
introduced any discrimination on the ground of
residence but acted in furtherance of the goal to
impart education. Such candidates will be more
effective as primary school teachers and more suitable
for the job. It is therefore contended that the
classification is grounded on considerations having
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[2024:RJ-JP:44915] (28 of 33) [CW-14474/2024]
nexus with the object sought to be achieved and is not
merely related to residence. We find it difficult to
accept this contention, though plausible it is. We feel
that undue accent is being laid on the dialect theory
without factual foundation. The assertion that dialect
and nuances of the spoken language varies from
district to district is not based upon empirical study or
survey conducted by the State. Not even specific
particulars are given in this regard. The stand in the
counter affidavit (extracted supra) is that “each zone
has its distinct language”. If that is correct, the Zila
Parishad should have mentioned in the notification that
the candidates should know particular language to
become eligible for consideration. We are inclined to
think that reference has been made in the counter to
‘language’ instead of ‘dialect’ rather inadvertently. As
seen from the previous sentence, the words dialect
and language are used as interchangeable
expressions, without perhaps understanding the
distinction between the two. We therefore take it that
what is meant to be conveyed in the counter is that
each Zone has a distinct dialect or vernacular and
therefore local candidates of the district would be in a
better position to teach and interact with students. In
such a case, the State Government should have
identified the zones in which vernacular dissimilarities
exist and the speech and dialect vary. That could only
be done on the basis of scientific study and collection
of relevant data. It is nobody’s case that such an
exercise was done. In any case, if these differences
exist zone-wise or region-wise, there could possibly be
no justification for giving weightage to the candidates
on the basis of residence in a district. The candidates
belonging to that zone, irrespective of the fact whether
they belong to x, y or z district of the zone could very
well be familiar with the allegedly different dialect
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[2024:RJ-JP:44915] (29 of 33) [CW-14474/2024]
peculiar to that zone. The argument further breaks
down, if tested from the stand point of award of bonus
marks to the rural candidates. Can it be said
reasonably that candidates who have settled down in
the towns will not be familiar with the dialect of that
district? Can we reasonably proceed on the assumption
that rural area candidate are more familiar with the
dialect of the district rather than the town area
candidates of the same district? The answer to both
the questions in our view cannot but be in the
negative. To prefer the educated people residing in
villages over those residing in towns– big or small of
the same district, on the mere supposition that the
former (rural candidates) will be able to teach the rural
students better would only amount to creating an
artificial distinction having no legitimate connection to
the object sought to be achieved. It would then be a
case of discrimination based primarily on residence
which is proscribed by Article 16(2).”
25. The issue of grant of weightage of additional marks for
candidates belonging to a family, which has no member in the
organised employment came before the Hon’ble Apex Court in the
case of Himachal Pradesh Vs. Amar Nath Sharma & Ors.
reported in 1994 (4) SLR 436, where the Apex Court has held
that there is no justification in providing any weightage or
incentive to a particular class of citizens, who are not socially and
educationally backward. It was held in paras 8 and 9 of the
judgment as under:-
“8. So far as the weightage provided for the
candidates belonging to a family which has no member
in the organised employment, we are of the view that
the High Court was justified in holding the same to be(Downloaded on 11/11/2024 at 10:47:44 PM)
[2024:RJ-JP:44915] (30 of 33) [CW-14474/2024]arbitrary. There is no justification for providing any
weightage or incentive for a class of citizens which is
not socially and educationally backward. An affluent
family having education and social status cannot be
given any preference is the matters relating to
employment or appointment to any office under the
State in the scheme of Articles 14 and 16 of the
Constitution of India. We, therefore, agree with the
High Court and set aside the weightage of 10 marks for
a candidate “belonging to a family for whom not even
one member is in organised employment.” This shall
operate prospectively from the date of this judgment.
Any selection made prior to the date of this judgment,
on the basis of the memorandum shall be considered
valid.
9. The High Court, in our view, was not justified in
quashing the selection – procedure. The High Court has
acted merely on surmises and conjectures. We have
not been able to find any material illegality in the
conduct of interviews. Simply because a candidate
obtained less marks for educational qualifications and
more marks in the interview. It is no ground to reach
the conclusion that the candidate was favoured. The
special selection committees at various district levels
adopted their own procedure to hold the interviews. At
some places lump sum marks were awarded in respect
of general knowledge and personality whereas at other
places 20 marks were divided into general knowledge
and personality separately. We see no illegality in the
manner of holding the interviews. We, therefore, set
aside the findings of the High Court and hold that the
interviews were held properly.”
26. Here, in the present case the respondents have put the
condition No.9 in the advertisement for grant of 10 additional
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[2024:RJ-JP:44915] (31 of 33) [CW-14474/2024]
bonus marks in the written examination to the personnel in case
they opt for their current district of posting, but this condition is
not backed by any Rules framed in exercise of the powers
conferred under the proviso to Article 309 of the Constitution of
India.
27. This Court is of a clear and specific view that the State has to
follow the provisions which are meant for the welfare of the
people, but the State cannot create any artificial classification
which results in discrimination between two equals and similarly
situated persons. All the candidates, who apply for getting
appointment, are entitled for selection on the basis of similar
criteria of selection, as prescribed under the Rules. Granting
additional bonus marks to a particular set of individual is not
justified.
28. Hence, this Court finds that granting of 10 additional bonus
marks to a particular group of personnel of the district, if they opt
their present place/district of posting, is violative of Articles 14, 15
and 16 of the Constitution of India when tested on the anvil of
Right to Equality and it creates a class of unequals amongst
equals. There is no nexus between the Rules of 2023 and
aforesaid condition No.9 of the advertisement as to grant of 10
additional bonus marks in the written examination.
29. It is worthy to note here that last year also, the similar
advertisement was issued by the respondents on 17.06.2023, in
pursuance of the same scheme of Rules of 2023 for appointment
in English Medium Schools but no such condition was put in the
said advertisement of granting 10 additional bonus marks. Hence,
under such circumstances, there was no occasion or reason
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[2024:RJ-JP:44915] (32 of 33) [CW-14474/2024]
available with the respondents to introduce the impugned
Condition No.9 in the advertisement dated 11.07.2024.
30. The above discussions lead this Court to the conclusion that
awarding any bonus marks to the personnel who are posted in a
particular district and opted for the same place/district of posting,
in terms of condition No.9 of advertisement dated 11.07.2024,
amounts to impermissible discrimination. There is no rational basis
for such preferential treatment, on the material available before
this Court. The ostensible reasons put forward to distinguish the
candidates by way of awarding 10 additional bonus marks, as
provided under Condition No.9 of the advertisement are either
non-existent or irrelevant, having no nexus with the object sought
to be achieved. The offending part of Condition No.9 of the
advertisement dated 11.07.2024 has the effect of diluting merit,
without in any way promoting the objective. The impugned
condition No.9 of the advertisement is violative of Articles 14, 15
and 16 of the Constitution of India. Hence, the impugned condition
No.9 of the advertisement dated 11.07.2024, insofar as the award
of 10 additional bonus marks is liable to be and is hereby declared
illegal and unconstitutional.
31. In view of the discussions made herein above, these writ
petitions are liable to be and are hereby allowed. The Condition
No.9 of the advertisement dated 11.07.2024 stands quashed and
set aside. The respondents are at liberty to proceed with the
selection process on the basis of merit and other criteria, fixed in
the Scheme of Rules of 2023 and strictly as per the terms and
conditions of the advertisement without giving 10 additional bonus
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[2024:RJ-JP:44915] (33 of 33) [CW-14474/2024]
marks to any of the candidates, on the basis of the impugned
condition No.9.
32. Stay application and all applications (pending, if any) stand
disposed of. The parties are left to bear their own costs.
(ANOOP KUMAR DHAND),J
Karan/282-285
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