TMI Blog2002 (7) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... he Zila Parishads of various districts in the State of Rajasthan during the year 1998-1999 have given rise to these appeals. The full Bench judgment of Rajasthan High Court dated 18.11.1999 in Kailash Chand Sharma (Petitioner in first of the appeals corresponding to SLP (C) No. 1824/2000) v. State of Rajasthan and connected Writ Petitions are under challenge in these appeals apart from the Division Bench Judgment in State of Rajasthan v. Naval Kishore Sharma. The full Bench followed its earlier judgment in Deepak Kumar Suthar v. State of Rajasthan (W.P. (C) No. 1917/1995) and disposed of the Writ Petitions on the same terms as in the previous full Bench reference case. At the outset, it may be stated that the judgment of the full Bench rendered on October 21, 1999 in Deepak Kumar's case (reported in 1999 (2) RLR 692 was in relation to the selection of teachers Grade II and Grade III which was pursuant to the advertisement issued by the Director, Primary and Secondary Education Department of the State Government. The second full Bench judgment, as already noted, was in the context of selections to the posts of teachers district wise coming within the fold of respective Zila Pari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he full Bench judgment one more batch of writ petitions came to be disposed of by a learned single Judge of the High Court on 26.2.2001 directing a fresh merit list to be prepared in respect of the candidates who were not appointed on or before 21.10.1999 without regard to the bonus marks. Appeals against this judgment were filed by the State Government and other authorities. The Division Bench by its order dated 13.4.2001 dismissed those appeals. Questioning the same, SLPs were filed by the State as well as certain affected parties who were granted leave to appeal. 5. Coming to the specific facts relevant to the present appeals, at the threshold, we should make a reference to the circular issued by the Department of Rural Development and Panchayat Raj bearing the date 10.6.1998. which deals with the subject of procedure to by followed for appointment to the vacant posts of teachers during the years 1993-1999 by way of direct recruitment. This circular was issued in supersession of earlier orders on the subject. It is seen from the circular that 5847 posts were sanctioned by the Finance Department of the Government and the appointments were to be made to the vacancies for which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sthan with 5 subjects including Sanskrit, Maths, English and Hindi. 9. Some of the candidates hailing from different districts or towns who were not eligible for bonus marks (10+5) filed the Writ Petitions under Article 226 of the Constitution questioning the circular of the State Government (Rural Development and Panchayat Raj Department) prescribing the bonus marks as afore-mentioned and seeking appropriate directions for their consideration without reference to bonus marks. This was done after they appeared for formal interview. By then, the select lists were published in some Districts and in some other Districts, though they were presumably prepared, further action was kept in abeyance for certain reasons, including the pendency of the Writ Petitions. When the matter came up for hearing before a learned single Judge, he felt that earlier Division Bench decisions of the Court in Arvind Kumar Gochar and Baljeet Kaur's case needed reconsideration. Accordingly, the learned single Judge suggested to the learned Chief Justice to constitute full Bench. At the same time, he stayed the final selection pursuant to various advertisements involved in the writ petition for three mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h with admirable clarify, making copious reference to several pronouncements of this Court. There can be little doubt that the impugned circular is the product of the policy decision taken by the State Government. Even then, as rightly pointed out by the High Court, such decision has to pass the test of Articles 14 and 16 of the Constitution. If the policy decision, which in the present case has the undoubted effect of deviating from the normal and salutary rule of selection based on merit is subversive of the doctrine of equality, it cannot sustain. It should be free from the vice of arbitrariness and conform to the well-settled norms both positive and negative underlying Articles 14 and 16, which together with Article 15 form part of the Constitutional code of equality. 13. In order to justify the preferential treatment accorded to residents of the district and the rural areas of the district in the matter of selection to the posts of teachers, the State has come forward with certain pleas either before the High Court or before this Court. Some of these pleas are pressed into service by the learned counsel appearing for the parties who are the possible beneficiaries under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ass 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 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 alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 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 dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 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 publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of ensuring admissions to the MBBS course on all India basis based as it is on the postulate that India is one nation and every citizen of India is entitled to have equal opportunity for education and advancement. But, it was observed that the realization of such ideal may into be realistically possible in the present circumstance. It was then concluded : We are therefore of the view that a certain percentage of reservation on the basis of residence requirement any legitimately be made in order to equalize opportunities for medical admission on a broader basis and to bring about real and not formal, actual and not merely legal, equality. The percentage of reservation made on this count may also include institutional reservation for students passing the PUC or pre-medical examination of the same university or clearing the qualifying examination from the school system of the educational hinterland of the medical colleges in the State. 22. It is not necessary for us to refer is extenso to various other decisions of this Court dealing with the scope of Article 15(1) and 15(4) vis a vis reservations based on residence within a University or other local area for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and that the people in the rural areas are poor is neither supported by facts nor by a division between the urban people on the one hand and the rural people on the other that the rural people are socially and educationally backward class. Some people in the rural areas may be educationally backward, some may be socially backward, there may be few who are both socially and educationally backward, but it cannot be said that all citizens residing in rural areas are socially, and educationally backward. Eighty per cent of the population in the State of Uttar Pradesh in rural areas cannot be said to be a homogeneous class by itself. They are not of the same kind. Their occupation is difference. Their standards are different. Their lives are different. Population cannot be a class by itself. Rural element does no make it a class. To suggest that the rural areas are socially and educationally backward is to have reservation for the majority of the State. It was further observed : The reservation for rural areas cannot be sustained on the ground that the rural areas represent socially and educationally backward classes of citizens. This reservation appears to be made fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound that there was no nexus between classification made and the object sought to be achieved because as the rule stands any person who may not have lived in a village at all can appear for SSC examination from a village and yet become eligible for selection . The rule was held to be violative of Articles 14 and 16. Another point discussed by the Court was about the propriety of giving bonus marks for the rural candidates and the Court held thus : The rules also provide that viva-voce Board would put relevant questions to judge the suitability of candidate for working in rural areas and to test whether or not they have sufficient knowledge of rural problems, and this n doubt amounts to a sufficient safeguard to ascertain the ability of the candidate regarding his knowledge about the affairs of the village. In such a situation there was absolutely no occasion for making an express provision for giving weightage which would virtually convert merit into demerit and demerit into merit and would be per se violative of Article 14 of the Constitution as being an impermissible classification. The rule of weightage as applied in this case is manifestly unreasonable and wholly arbitrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument is that the educated people n the rural areas are economically weaker than those living in towns. None of these assumptions are based upon any data or concrete material. We must say that the argument built up on this plea falls more in the realm of platitudes rather than affording a solid basis for the classification. In Nidamarti Maheshkumar v. State of Maharashtra [1986]2SCR230 , when region wise classification for admissions to medical colleges was sought to be defended on the ground that Vidharbha and Marathwada regions are backward as compared to Punch and Bombay regions, this Court declined to accept such contention. It was observed: In the first place there is no material to show that the entire region within the jurisdiction of the university in Vidharbha is backward or that the entire region within the jurisdiction of Pune University is advanced. There are quite possibly even in the region within the jurisdiction of Pune University predominantly rural areas which are backward and equally there may be in the region within the jurisdiction of the university in Vidharbha, areas which are not backward. We do not think it is possible to categories the regions within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoke Article 16(4). 35. Our attention has however been drawn to the following observations in Nidamarti's case (supra) in reiteration of what was said in Pradeep Jain's case (supra): It is therefore, clear that where the region from which the students of a university are largely drawn is backward either from the point of view of opportunities for medical education or availability of competent and adequate medical services, it would be constitutionally permissible, without violating the mandate of the equality clause, to provide a high percentage of reservation or preference for students coming from that region, because without reservation or preference students from such backward region will hardly be able to compete with those from advanced regions since they would have no adequate opportunity for development so as to be in a position to compete with others. By reason of their socially or economically disadvantaged position they would not have been able to secure education in good schools and they would consequently be at a disadvantage compared to students belonging to the affluent or well-to-do families who have had best school education. There can, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 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 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. 38. We are, therefore, of the view that the first plea raised by the State (SIC) also found in the counter-affidavit filed before the High Court (as (SIC) from the judgment in Deepak Kumar Suthar's case) is untenable. 39. We now turn our attention to two other pleas more vehemently raised by Mr. Rajeev Dhawan as well a the counsel appearing for the State to justify the weightage in favour of District and rural candidates. We may quote the averments in the counter affidavit of the State in one of the cases i.e. SLP 10780/2001: T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 intro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ably 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). 41. Coming then to the next plea that the residents of towns, if appointed will not be willing to serve the rural areas and they will be more interested in getting themselves transferred to relatively urban area and forward districts , does not in our view, stand a moment's scrutiny. The apprehension that 'teacher absenteeism' will be rampant of non-rural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as the award of bonus marks is concerned, has been rightly declared to be illegal and unconstitutional by the High Court. 43. One more serious infirmity in the impugned circular is that it does not spell out any criteria or indicia for determining whether the applicant is a resident of rural area. Everything is left bald with the potential of giving rise to varying interpretations thereby defeating the apparent objective of the rule. On matters such as duration of residence, place of schooling etc., there are bound to be controversies. The authorities, who are competent to issue residential certificates, are left to apply the criteria according to their thinking, which can by no means be uniform. The decision in the State of Maharashtra v. Raj Kumar AIR1982SC1301 is illustrative of the problem created by vague or irrelevant criteria. In that case a rule was made by the State of Maharashtra that a candidate will be considered a rural candidate if he had passed SCC Examination held from a village or a town having only 'C' type municipality. The object of the rule, as noticed by this Court, was to appoint candidates having full knowledge of rural life so that they would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be granted to the petitioners as they will not stand to gain even if the bonus marks are omitted. No separate finding on this aspect has been recorded by the full Bench in the impugned order. 47. Coming to the second batch of cases the learned Judges of the Division Bench while reiterating the directions given by the full Bench in Deepak Kumar's case however, dismissed the appeals, though the directions given by the learned single Judge are somewhat at variance with those granted in Deepak Kumar's case . The learned single Judge quashed the merit list prepared or in existence after 21.10.1999 (the date of judgment in Deepak Kumar's case ) and directed fresh merit lists to be prepared ignoring the provision for award of bonus marks to the district and rural residents and to regulate appointments based on that fresh list, if necessary, after giving show cause notice to the appointees. The affected appointees (who were not parties before the High Court) have filed the SLPs in view of the consequential action taken by the concerned authorities. 48. Whether the judgment should be given prospective application so as not to affect the appointments made prior to the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evalent understanding of the law undergoes a change the Court on considerations of justice and fair deal, restricts the operation of the new found law to the future so that its impact does not fall on the past transactions. The doctrine recognises the discretion of the Court to prescribe the limits of retroactivity of the law declared by it. It is a great harmonizing principle equipping the Court with the power to mould the relief to meet the ends of justice. Justification for invoking the doctrine was also found in Articles 141 and 142 which as pointed out in Golak Nath's case are couched in such wide and elastic terms as to enable this Court to formulate legal doctrines to meet the ends of justice. In the aftermath of Golak Nath case, we find quite an illuminating and analytical discussion of the doctrine by Sawant, J. in Managing Director v. B. Karunakar (1994)ILLJ162SC . The learned Judge prefaced the discussion with the following enunciation:- It is now well settled that the courts can make the law laid down by them prospective in operation to prevent unsettlement of the settled positions, to prevent administrative chaos and to meet and end of justice. 50. Law rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... selection process with the addition of bonus marks could not have been seriously doubted either by the appointing authorities or by the candidates in view of the judicial precedents. The cloud was cast on the said decisions only after the selection process was completed and the results were declared or about to be declared. It is, therefore, a fit case to apply the judgment of the full Bench rendered subsequent to the selection prospectively. One more aspect which is to be taken into account is that in almost all the writ petitions the candidates appointed, not to speak of the candidates selected, were not made parties before the High Court. May be, the laborious and long-drawn exercise of serving notices on each and every party likely to be affected need not have been gone through. At least, a general notice by newspaper publication could have been sought for or in the alternative, at least a few of the last candidates selected/appointed could have been put on notice; but, that was not done in almost all the cases. That is the added reason why the judgment treading a new path should not as far as possible result in detriment to the candidates already appointed. We are not so mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el Mr. Krishnamani raised a subsidiary contention that the High Court was wrong in proceeding on the assumption that his client and other similarly situated petitioners would not have got selected even if the bonus marks were ignored. In the SLP, the said petitioner furnished the particulars relating to marks secured by him and some other selected candidates. Quite rightly, the learned counsel contended that the High Court apparently could not have looked into the particulars of marks in each and every case an it would have been in the fitness of things if it were let to the concerned authorities to go into the factual details. 54. One more point which need mention. Some of the learned counsel argued that the unsuccessful applicants should not be allowed to challenge the selection process to the extent it goes against their interest, after having participated in the selection and waited for the result. It is contended that the discretionary relief under Article 226 should not be granted to such persons. Reliance has been placed on the decision of this Court in Madan Lal v. State of J K [1995]1SCR908 and other cases in support of this argument. On the other hand, it is contended ..... X X X X Extracts X X X X X X X X Extracts X X X X
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