Punjab-Haryana High Court
Abhishek Rishi vs State Of Punjab And Others on 3 April, 2013
Bench: Hemant Gupta, Rajiv Narain Raina
CWP No.11071 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1. CWP No.11071 of 2011
Abhishek Rishi ... Petitioner
Versus
State of Punjab and others ... Respondents
2. CWP No.9284 of 2011
Hatinder Singh and others ... Petitioners
Versus
The State of Punjab and others ... Respondents
3. CWP No.10442 of 2011
Kamaljit Kaur and others ... Petitioners
Versus
State of Punjab and others ... Respondents
4. CWP No.8069 of 2012
Vanik and others ... Petitioners
Versus
State of Punjab and others ... Respondents
5. CWP No.10297 of 2011
Baltej Singh and others ... Petitioners
Versus
State of Punjab and others ... Respondents
6. CWP No.10848 of 2011
Joginder Singh and another ... Petitioners
Versus
State of Punjab and others ... Respondents
7. CWP No.12988 of 2011
Kuldeep Singh and another ... Petitioners
Versus
State of Punjab and others ... Respondents
8. CWP No.16316 of 2011
Sarabjit Kuar ... Petitioner
Versus
State of Punjab and others ... Respondents
9. CWP No.16844 of 2011
Satnam Singh ... Petitioner
Versus
State of Punjab and others ... Respondents
CWP No.11071 of 2011 -2-
10. CWP No.3752 of 2012
Balbir Singh and others ... Petitioners
Versus
State of Punjab and others ... Respondents
11. CWP No.3922 of 2012
Lakhvir Singh and another ... Petitioners
Versus
State of Punjab and others ... Respondents
12. CWP No.4212 of 2012
Dr. Nammita Singh ... Petitioner
Versus
State of Punjab and others ... Respondents
13. CWP No.22841 of 2011
Lajjo Devi ... Petitioner
Versus
State of Punjab and others ... Respondents
14. CWP No.22837 of 2011
Reena Kumari and others ... Petitioners
Versus
State of Punjab and others ... Respondents
15. CWP No.9272 of 2012
Raman Deep Singh ... Petitioner
Versus
State of Punjab and others ... Respondents
16. CWP No.11844 of 2012
Anil Kumar Sharma ... Petitioner
Versus
Punjab State Agriculture Marketing Board and others ... Respondents
Date of Decision:03.04.2013
CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE AJAY TEWARI
HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: M/s D.S. Patwalia and Salil Sabhlok, Advocates,
Amicus Curiae.
Mr. Vikas Chatrath, Advocate, for the petitioner.
(CWP No.11071 of 2011)
Ms. Alka Chatrath, Advocate for the petitioners.
(CWP Nos.10848 and 10297 of 2011)
Mr. Ramdeep Partap Singh, Advocate, for the petitioner.
(CWP No.10442 of 2011)
Mr. B.R. Mahajan, Advocate and
Ms. Gaganpreet Kaur, Advocate, for the petitioner.
CWP No.11071 of 2011 -3-
(CWP No.3752 of 2012)
Mr. Kapil Kakkar, Advocate for the petitioner.
(CWP Nos.22837 and 22841 of 2011)
Mr. Gurinder Pal Singh, Addl. A.G., Punjab.
Mr. R.D. Anand, Advocate for respondent No.4.
(CWP No.9284 of 2011)
1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in the Digest? Yes
RAJIV NARAIN RAINA, J.
The Constitution (Seventy Third) Amendment Act, 1992 (for short the "73rd Amendment") introduced Part IX in the Constitution of India relating to Panchayats, the provisions of which were promulgated on 24.4.1993. Articles 243 to 243-O were, inter alia, incorporated by the said amendment in the Constitution under the heading "The Panchayats". The underlying objective of inserting Part IX was to create democratic decentralization and devolution of the powers of the legislature upon panchayats with respect inter alia to the preparation and implementation of plans for economic development and social justice for ensuring that traditionally marginalized groups in rural settings should progressively gain foothold in local self-government.
2. Article 243(d) of the Constitution defines 'Panchayat' to mean an institution (by whatever name called) of self-government constituted under Article 243B for the rural areas. Article 243B reads as follows:
"243B. Constitution of Panchayats.-(1) There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part.
(2) Notwithstanding anything in clause (1), Panchayats at the intermediate level may not be constituted in a State having a population not exceeding twenty lakhs."
3. The 73rd amendment clearly envisages a three tier system of governance in rural areas, that is at the village, intermediate and district levels. The term 'intermediate level' has been employed and is found, apart from in Article 243B, in Article 243C as well to indicate:
CWP No.11071 of 2011 -4-
"243C. Composition of Panchayats.-(1) Subject to the provisions of this Part, the Legislature of a State may, by law, make provisions with respect to the composition of Panchayats:
Provided that the ratio between the population of the territorial area of a Panchayat at any level and the number of seats in such Panchayat to be filled by election shall, so far as practicable, be the same throughout the State.
(2) All the seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area and for this purpose, each Panchayat area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area. (3) The Legislature of a State may, by law, provide for the representation-
(a) of the Chairpersons of the Panchayats at the village level, in the Panchayats at the intermediate level or, in the case of a State not having Panchayats at the intermediate level, in the Panchayats at the district level;
(b) of the Chairpersons of the Panchayats at the intermediate level, in the Panchayats at the district level;
(c) of the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly a Panchayat area at a level other than the village level, in such Panchayat;
(d) of the members of the Council of States and the members of the Legislative Council of the State, where they are registered as electors within-
(i) a Panchayat area at the intermediate level, in Panchayat at the intermediate level;
(ii) a Panchayat area at the district level, in Panchayat at the district level.
(4) The Chairperson of a Panchayat and other members of a Panchayat whether or not chosen by direct election from territorial constituencies in the Panchayat area shall have the right to vote in the meetings of the panchayats.
(5) The Chairperson of-
(a) a Panchayat at the village level shall be elected in such manner as the Legislature of a State may, by law, provide; and
(b) a Panchayat at the intermediate level or district level shall be elected by, and from amongst, the elected members thereof."
4. The powers, authority and responsibilities of Panchayats are adumbrated in Article 243G which are as follows:
"243G. Powers, authority and responsibilities of Panchayats.-Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow the Panchayats with such powers and authority and may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as may be specified therein, with respect to-
(a) the preparation of plans for economic development and social justice;
(b) The implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule."
5. Article 243G (b) makes it the responsibility of Panchayats at the CWP No.11071 of 2011 -5- village, intermediate and district level to implement schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule to the Constitution. Entry 17 of the Eleventh Schedule to the Constitution added by the 73rd Amendment reads:
"Education, including primary and secondary schools".
6. To give effect to the 73rd amendment, the Punjab legislature enacted the Punjab Panchayati Raj Act, 1994 (for short "the Act") which received the assent of the President of India on 20.4.1994. This comprehensive new enactment replaced the old Punjab Gram Panchayat Act, 1952, relating to Gram Panchayats, and the Punjab Panchayat Samities and Zila Parishads Act 1961, relating to the Panchayat Samitis and Zila Parishads. The Act was notified in the Gazette on 21.4.1994.
7. The Constitution does not use the words Zila Parishad. Zila Parishad has, however, been defined in Section 2 (zzd) of the Act to mean a Zila Parishad of a district constituted under that Act. Section 161 of the Act deals with establishment of Zila Parishads while Section 162 lays down the composition of Zila Parishads. A Zila Parishad constituted under the Act is a democratically elected body of directly elected members and certain non elected members as specified. Section 172 of the Act deals with powers of Chairman and Vice- Chairman of Zila Parishad. Section 180 defines the functions of Zila Parishads and twenty two functions have been enumerated thereunder which the Zila Parishads are expected to perform, one of which is specified in Sub Section (17) of Section 180 of the Act which calls upon on the Zila Parishads in relation to the field of "Education" and reads as follows:
"(17) Education:-
(a) Promotion of educational activities including the establishment and maintenance of primary and secondary schools;
(b) planning of programme for adult education and library facilities;
(c) extension work for propagation of science and technology to rural areas;
(d) survey and evaluation of educational activities;
(e) establishment and maintenance of general hostels, ashram schools
and orphanages."
CWP No.11071 of 2011 -6-
8. The field of Education is also dealt with in Section 181(6)(b) of the Act which reads in relevant extract as follows:
"181. Duties and Powers of Zila Parishad.--
(6) Subject to the general or special orders of the State Government, the Zila Parishad may-
(a) xxxxxx
(b) provide for carrying out any work or measures likely to promote
health, safety, education, comfort, convenience or social or economic or cultural well-being of the inhabitants of the district;"
9. The power to make Rules lies under Section 227 of the Act 1994 and vests exclusively with the State Government. Section 227 (zc) confers power on the State Government to make rules with respect to the services to be constituted under sub-section (2) of Section 196 of the Act 1994.
10. Section 196 of the Act 1994 deals with the staff of the Zila Parishads and the provision lays down as follows:
"196. Staff of the Zila Parishad.-(1) Subject to rules made by the State Government, Zila Parishad may employ such employees as it may consider necessary for the efficient performance of its duties and functions imposed upon it by this Act or rules or bye-laws made thereunder or any other law for the time being in force.
(2) The State Government may constitute in the prescribed manner such services for each Zila Parishad as may be considered necessary. (3) The provisions of sections 155, 156, 157, 158, 159 and 160 as far as may apply to the employees of the Zila Parishad in same manner and to the same extent as they apply to the employees of the Panchayat Samitis."
11. The power to make rules is found in Section 227 of the Act. The relevant provision for the purposes of this matter is Section 227(2)(zc). It reads:
"227. Power to make Rules.-- (1) The State Government may, by notification, in the Official Gazette and subject to the condition of previous publication, make rules for carrying out the purpose of this Act. (2) In particular and without prejudice to the generality or foregoing powers such rules may provide for all or any of the following matters, namely:
(a) to (zb) x x x (zc) Services to be constituted under sub-section (2) of Section 196; (zd) x x x (3) x x x"
12. The general powers of the State Government are defined in Section 207 of the Act 1994, which read as follows:
"207. General powers of State Government and Commissioners- in all CWP No.11071 of 2011 -7- matters connected with this Act, the State Government shall have an exercise over Commissioners and the Commissioners shall have an exercise over the Deputy Commissioners, the same authority and control as they respectively have an exercise over them in general and revenue administration."
13. Section 221 of the Act 1994 deals with delegation of powers and lays down that the State Government may by notification, direct that any power exercisable by it under this Act, except the power to make rule, can also be exercised as granted by the State Government.
14. Section 222 of the Act 1994 defines over-riding effect on other laws except as otherwise provided by the Act and the provisions of the rules or regulations of bye-laws made under the Act will have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
15. The cadre controlling authority of posts and services under the Zila Parishads would be the State Government through the Department of Rural Development and Panchayats, Punjab.
16. The Government of Punjab by notification dated 3.3.2006 transferred the management of 3449 Government Primary Schools and 232 Government Secondary Schools from under the control of the Punjab Education Department and handed them over to the Department of Rural Development and Panchayats and the Department of Local Bodies for all intents and purposes. After transferring these schools to Zila Parishads the rules of service governing employment under the new department were notified by the State Government on 25.5.2006. These service rules were framed in exercise of powers conferred by Section 227 read with Sub-Section (2) of Section 196 of the Punjab Panchayati Raj Act, 1994 known as the Punjab Panchayati Raj Primary Teachers (Recruitment & Conditions of Service) Rules, 2006 (in short "2006 Rules"). These rules were amended vide impugned notification dated 18.4.2011 called the Punjab Panchayati Raj Primary Teachers (Recruitment & Conditions of Service) First Amendment Rules, 2011.
CWP No.11071 of 2011 -8-
17. For deciding the present matter, we are concerned with Rule 10 which deals with qualifications and Rule 11 which lays down the criteria for appointments to the posts of ETT Teachers. The original Rules 10 and 11 and the amended Rules are placed alongside to understand the departure. The original provisions read as follow:
"Rule 10. Qualifications:(1) No person shall be appointed to the Service, unless, he,-
(a) possesses a Diploma in Elementary Teachers Training Course (hereinafter called the E.T.T.) recognised by the School Education Board of any State Government or the Central Government or a certificate of an equivalent course from the Defence Services of the Union of India;
(b) is a domicile of the State of Punjab or Union Territory of Chandigarh; and
(c) obtains a minimum score of 100, as per the criteria laid down in the example given in sub-rule (3) of rule 11 of these rules. (2) In case of non-availability of E.T.T. candidates, the candidates having B.A./B.Sc./B.Com. and B.Ed. qualifications from a recognised university or institution will be considered for appointment to the Service. However, such candidates shall have to undergo orientation training of six months within a period of five years from the date of joining the Service. (3) No person shall be appointed to any post in the Service by direct appointment unless he possesses a certificate of having passed Punjabi language in Matriculation Examination.
11. Criteria for appointments and transfer.- (1) Appointment to the Service, shall be made school-wise from amongst the eligible candidates from the area in the following order, namely:-
(a) village in which the school is situated;
(b) adjoining villages and towns;
(c) block and towns contiguous with block;
(d) adjoining blocks and contiguous towns; and
(e) district.
(2) No appointment shall be made from outside the district. No transfer shall be made, except in the following circumstances, namely;-
(a) on promotion against vacancy within district;
(b) in case of marriage, against vacancy; and
(c) within the block, in case sanctioned teacher strength in the school is revised as per the norm of Government.
(3) The merit will be prepared by adding the percentage of marks obtained in 10+2 Examination or its equivalent and in E.T.T. In case of non-availability of eligible E.T.T. Candidates, the candidates having B.A./B.Sc./B.Com. and B.Ed. Qualifications, will be considered.
Example: A candidate having 62% in 10+2 Examination and 72% in E.T.T. will have 62+72=134 scores. No other marks shall be given for any other qualifications or activities. In case of equal marks, older in age, shall be placed higher in merit. To be eligible, a candidate must have a minimum score of 100, as per the above criteria. In the same way, separate merit shall be prepared for B.A./B.Sc./B.Com. and B.Ed. Candidates by adding the percentage of marks obtained in B.A./B.Sc./B.Com. and B.Ed. A joint merit, applying the same criteria will be prepared for the purposes of seniority." (underlined for emphasis)
18. Amended Rules 10 and 11 read as follows:
CWP No.11071 of 2011 -9-
"Rule 10. Qualifications:(1) No person shall be appointed to the Service, unless, he-
(a) has passed Junior Basic Teachers Training Course or Elementary Teachers Training Course, as the case may be, of two years' duration, from the State of Punjab or from any other State or the Union Territory, as the case may be, declared equivalent and duly recognized by the Punjab Government;
(b) has passed Punjabi as a teaching subject in the said courses;
(c) has passed Matriculation Examination with Mathematics Science, English and Punjabi; and
(d) is a domicile of the State of Punjab or the Union Territory of Chandigarh.
(2) In case of non-availability of persons, who have passed the Junior Basic Teachers Training Course or Elementary Teachers Training Course, as the case may be, the persons, who possess B.Ed. Degree from a recognized university or institution, will be considered for appointment to the Service. However, such persons shall have to undergo orientation training of six months duration within a period of five years from the date of joining the Service from the District Institute of Education and Training, Punjab.
11. Method for making appointments and transfers-
(1) Appointment to the Service, shall be made from amongst the eligible persons, in the following manner, namely:-
(a) Seventy percent of the posts shall be filled up from amongst the persons, who have obtained the educational qualifications as specified in rule 10, from the institutions situated within the State of Punjab; and
(b) Thirty percent of the posts shall be filled up from amongst the persons, who have obtained the educational qualifications as specified in rule 10, from the institutions situated outside the State of Punjab:
Provided that the said limit of seventy percent or thirty percent, as the case may be, shall not be applicable, if the requisite number of persons are not available for appointment as specified either in clause (a) or clause (b) above. In such a situation, the appointments can be made over and above the aforesaid limit, from amongst the persons, who are available for appointment in either of the categories in order to fill all the available vacancies.
(2) The merit will be prepared by adding the percentage of marks obtained in 10+2 Examination or its equivalent and the percentage of marks obtained in the Junior Basic Teachers Training Course or Elementary Teachers Training Course, as the case may be. The persons, who have passed the said courses in the previous years but could not get employment in Government Service, will be given weightage of one mark for each completed year subject to maximum of ten marks. The above said period shall be counted from the date of issuance of the relevant diploma certificate till the date of last date of submission of application for appointment under these rules.
(3) The persons, who have passed Middle and Matriculation examination from the schools situated in rural areas in the State of Punjab, whall be given extra five marks.
Example.- A person, who has---
(i) obtained 62% in 10+2 examination
.. 62
(ii) obtained 72% in J.B.T. Or E.T.T, as the case may be
.. 72
(iii) passed diploma in 2002 and obtained diploma certificate on May 5, 2002. The last date of submission of the application for the advertised post is May 5, 2011. The relevant period after passing of J.B.T. Or E.T.T., thus is 9 years; and .. 09 CWP No.11071 of 2011 -10-
(iv) passed Middle and Matriculation from the schools situated in rural areas of Punjab, if applicable, .. 05 Shall be considered to have obtained total marks .. 148 (i.e. (i)+(ii)+(iii)+(iv))=(62+72+09+05=148) (4) In case of equal marks in the final merit list, the person older in age shall be placed higher in merit.
(5) In case of non-availability of eligible persons, who have passed the Junior Basic Teachers Training Course or the Elementary Teachers Training Course, the persons, who possess B.Ed. Degree, will be considered for appointment and a separate merit list will be prepared by adding the percentage of marks obtained in graduation and the percentage of marks obtained in B.Ed. Degree.
(6) The members of the Service may be transferred from one place to another in accordance with the transfer policy, framed by the Government in the Department of School Education from time to time."
19. The original and amended Rule 10 is more or less the same with the difference that by the amendment notified on 18.4.2011 the passing of Punjabi as a "teaching subject" in J.B.T and E.T.T. courses has been added. Earlier the rule laid down minimum qualifications as Diploma in Elementary Teachers Training Course while the amended rule 10 adds Elementary Teachers Training Course as one of the essential qualifications. This is not subject matter of challenge in the present petition as the State is entitled to lay down qualifications for posts under it. What has also added further is that the matriculation examination would have to be passed with Mathematics, Science, English and Punjabi to make a person eligible for appointment. Earlier the essential requirement was of possessing a certificate of passing matriculation examination in 'Punjabi language' for eligibility for direct appointment. This also does not concern us with in this matter.
20. The salient features of the rules and the public advertisement notifying vacancies for being filled up and impugned in this petition have been summed up in the interim order dated 10.6.2011 as follows:
"1. That the applicant/selectee should be a domicile of the State of Punjab or Union Territory, Chandigarh;
2. That 70 percent of the posts be filled up from amongst those candidates who have passed Junior Basic Teachers' Training (JBT) or Elementary Teachers' Training (ETT) course from the State of Punjab.
3. The merit of those candidates who have passed Middle and Matriculation examination from the schools situated in the rural areas of Punjab will be prepared by awarding five additional marks to them.
4. That those candidates who have passed ETT course more than one year back will be given one additional mark for each year, subject to CWP No.11071 of 2011 -11- giving maximum ten marks.
5. That the recruitment of the candidates will be made district-wise."
Articles 14,15,16 and 35(a)(i) and 38(2) of the Constitution and their impact on the Rules as amended in 2011.
21. Article 14 is all encompassing on the subject of equality of citizens before the law. Article 15 prohibits discrimination inter alia on the ground of 'place of birth'. Article 15 (4) enables the State inter alia from making special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled castes and the Scheduled Tribes. Article 16 (2) grants equal opportunity to all citizens of India in matters of public employment and prohibits discrimination not only on ground of place of birth but in addition on grounds of residence as well.
22. Articles 14, 15 and 16 form the complete equality code under the Constitution including horizontal and vertical reservations. Article 14 is the Godfather and Godmother of Articles 15 and 16. There is, however, an exception carved out by Article 16 (3) from Articles 16 (1) and 16 (2) to dispense with any requirement as to residence for purposes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory prior to such employment or appointment but Parliament alone is competent to the exclusion of the State to make laws departing from the equal opportunity clause of right of consideration in public employment and restricting it to within a province. Such power, however, has not been vested by the Constitution in the State legislature and therefore, neither any form of subordinate legislation or exercise of rule making authority with reference to the extent of the legislative power of the State extending to its executive power can transgress limits or the Lakshman rekha set in the Constitution and specially with regard to Article 16 (3). Parliament has in fact exercised such power by protecting certain States like Himachal Pradesh, Manipur, Tripura and the Telangana area of Andhra Pradesh by enacting special provisions permitting preferential policies based on CWP No.11071 of 2011 -12- residence requirement for public employment with respect to those States in exercise of powers conferred by Article 16(3) by enacting protective law in the shape of Public Employment (Requirement as to Residence) Act, 1957. But that does not hold true for the State of Punjab.
23. Articles 14,15,16, 35(a)(i) and 38(2) of the Constitution relevant for the purposes of this case are reproduced below for ready reference since the prime thrust of the arguments advanced by the learned counsel have revolved round inter alia the aforesaid constitutional provisions:
"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) x x x (3) x x x (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."
16. Equality of opportunity in matters of public employment.-(1) There shall be equality of opportunity for all citizens in matters relating to employment for appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place or 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 (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) x x x ((4B) x x x (5) x x x (emphasis supplied) Article 35(a)(i)
35. Legislation to give effect to the provisions of this Part- notwithstanding anything in this Constitution-
CWP No.11071 of 2011 -13-
(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws-
(i) with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33 and article 34 may be provided for by law made by Parliament; and..."
38. State to secure a social order for the promotion of welfare of the people.-
(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations."
24. To return to the rules and the impugned amendment carried out to the statutory rules of recruitment framed under the Act governing the case in hand. The impugned amendment in the rules, makes it mandatory for a candidate to be a domicile of the State of Punjab or U.T. Chandigarh; 70% of the posts are to be filled up from amongst those persons, who have passed Junior Basic Teachers Training Course or Elementary Teachers Training Course from the recognized institutions in the State of Punjab; the merit of candidates who have passed middle and matriculation examination i.e. 8th and 10th Standard from the schools situated in the rural areas of Punjab will be granted five additional marks towards merit; Those candidates who have passed the ETT course more than a year ago will be given one additional mark for each completed year of non-employment subject to maximum of ten marks and lastly, that the recruitment of candidates will be made district wise.
25. After the rules stood amended on 18.4.2011, the process of recruitment of Elementary Teachers against 7041 available vacancies was initiated through public advertisements inter alia issued in The Tribune in its issue dated 26.4.2011 for appointment of ETT Teachers to Primary Schools located in areas falling within the jurisdiction and administration of Zila Parishads in the State of Punjab. A bunch of writ petitions were filed before this Court challenging the vires of the rules. This Court by an elaborate interim order dated 10.6.2011 passed CWP No.11071 of 2011 -14- in CWP No.11071 of 2011 stayed the recruitment process on expressing prima facie opinion that the advertisement and the amended rules run foul of the constitutional scheme of public appointments for various reasons stated in the interim order. The Division Bench that passed the interim order was of the view that an earlier Division Bench decision of this Court rendered in Sudesh Rani v. State of Punjab; 2010 (5) SLR 768 upholding grant of bonus marks to candidates from rural areas to be added to their merit was doubtful in its correctness.
26. The Division Bench in Sudesh Rani extensively relied on a joint study conducted and authored by three academicians under the aegis of the Punjabi University, Patiala. The Division Bench in the present case found vital issues of public importance involving public employment arising out of the aforesaid rules, the vires of which were challenged by the petitioners before this Court. The Division Bench while restraining the State to take any further steps in pursuance to the advertisement, issued notice of motion to the respondent-State. Thereafter, the present petition involving recruitment of Elementary Teachers in Zila Parishad service were clubbed with other writ petitions involving recruitment of Staff Nurses and Psychiatric Medical Officers (Dental) and Block Education Instructors and Secretary Marketing Committee in Zila Parishads wherein also advantage was given to rural candidates for recruitment in the light of the service rules governing those posts. The cases were bunched together for hearing.
27. When the bunch of writ petitions came up for hearing before the Division Bench on 13.7.2012, the Bench took notice of the prima facie opinion expressed by the previous co-ordinate Bench in its detailed interim order in respect of reservation afforded to candidates belonging to rural areas in Punjab as upheld in Sudesh Rani (supra) and deemed it fit to place the matter before Hon'ble the Acting Chief Justice for constitution of a Larger Bench for considering the following five issues as were perceived arising in the cases the answers to which would have wide ramifications. That is how this matter has been placed before the CWP No.11071 of 2011 -15- Full Bench for opinion on the issues raised, canvassed and debated by the respective counsel. The vires of the 2011 amendment to the Service rules is, therefore, subject matter of challenge in this petition.
28. In the above background, the following questions were framed by the Division Bench of this Court by order dated 13.7.2012 to be answered by the Larger Bench:
"1. Whether the grant of 5 additional marks to the candidates, who have passed Middle and Matriculation examination from the schools situated in rural areas of Punjab, is sustainable?
2. Whether conditions in Rules or in advertisements that the applicants should be domicile of State of Punjab or Union Territory of Chandigarh, is legal and valid?
3. Whether the reservation to the extent of 70% of the posts amongst those candidates, who have passed Junior Basic Teachers Training or Elementary Teachers Training Course from the State of Punjab is sustainable when the candidates from the other States possess the same or equivalent qualifications?
4. Whether the condition of granting one additional mark for each year of unemployment subject to maximum of 10 marks, is legal and justified?
5. Whether the District-wise recruitment is legal and justified?"
29. These questions would have to be answered not only in the light of 2006 Rules and its impugned amendment in 2011 but also keeping in view the Constitution 73rd amendment, 1992 enforced w.e.f. 24.4.1993 introducing inter alia Part 1X dealing with Panchayats in the context of education, rural schools and recruitment of ETT teachers in those schools, together with the provisions of Articles 14, 15, 16, 35 and 38 (2) of the Constitution of India.
30. The foremost question is:
Whether the Division Bench in Sudesh Rani (supra) case was correctly decided upholding service rules granting benefit of 5 additional marks towards merit in recruitment of ETT teachers by relying on a study conducted by three academicians/co-authors in September 2006 titled "Rural Students in Universities of Punjab" printed by the Publication Bureau, Punjabi University, Patiala.
31. To begin with, a word of caution deserves to be sounded since we find in the publication which was heavily relied upon in Sudesh Rani a disclaimer CWP No.11071 of 2011 -16- of the Punjabi University, Patiala on the first page that it is not responsible in any manner with respect to findings, interpretation and suggestions contained in the publication and the findings expressed therein are of the authors, though the study is sponsored by the University through its Department of Economics & Centre for Research in Economic Change.
32. Be that as it may, it appears that the three academicians conducted a study to find out the proportion of rural students studying in the four universities established in Punjab and their regional campuses during the academic Session 2005-06. The study found that a mere 4.07% of rural students reached university level for further studies. It was deduced that this figure was revealing in the sense that out of 66% rural population, only 8% students were able to enter the universities for higher studies. The objective of the study was to understand the hiatus which exists between the rural and urban Punjab where 66% of the State population and 70% of its work force as per census 2001 lived in rural areas. This big gap was found in terms of facilities, services and opportunities available to the rural and urban people. People living in cities/towns had access to better schools and colleges, better teachers, better income earning opportunities, better transportation and communication means, etc. On the other hand, the villagers are deprived of such facilities and consequently have lagged behind their urban counterparts. There has been a wide spread exclusion of rural students in Punjab from higher education, particularly from professional and engineering education, over the last two decades or so, whatever may be the reasons. Collapse of school education in rural Punjab, admission through entrance tests, costly education in private schools beyond the reach of a majority of ruralites, the rural-urban divide, lack of amenities and levels of awareness, the information gap, lack of proper guidance and coaching may be some of the reasons. One of the serious implications of all this is that rural students are unable to enter the higher education system through the present mode of entrance examinations. CWP No.11071 of 2011 -17-
33. From the study extensively relied upon in Sudesh Rani, it may be appropriate to reproduce the words of the authors themselves, relevant to cull out the ratio from the judgment. In paragraphs 27 & 28 of the judgment the Court held:
"27. In our view, weightage to a rural candidate would achieve such a purpose to neutralize the disadvantages suffered by a rural student and in fact achieve equality by bringing unequals at par.
28. In the light of the above and the conclusions based on a scientific study and spread over State of Punjab and academic institutions in the State of Punjab, we are satisfied that State of Punjab has been able to satisfy the mandate of the judgment of Kailash Chand Sharma's case which has not ruled out the weightage to rural students provided it was backed up by the scientific study and data. The wide CWP No. 6801 of 2008 [34] ranging empirical study done by the Punjab Uniersity in our opinion constitutes sufficient material so as to furnish a scientific basis for granting weightage to the rural students. We are also satisfied that since the study finds the rural students, by deprivation of equal opportunity and infrastructure, to be unequal to those coming from the urban background by virtue of their location in a rural setting, this weightage, far from promoting inequality, in fact seeks to restore equality between unequals and thus fulfills the mandate of Article 14."
(emphasis supplied)
34. The relevant parts of the publication are as follows:
"1.4 Research Design and Methodology 1.4.1 Coverage and scope of study Keeping in view the specific objectives and scope of the study, it has been decided to conduct a comprehensive survey of the various universities of Punjab and their regional centres to know the ground realities. The study is confined to four universities, namely, Punjabi University, Patiala; Guru Nanak Dev University, Amritsar; Punjab Agricultural University, Ludhiana; and Panjab University, Chandigarh. Besides the university campuses, the regional centres of all these four universities have also been covered. In all, ten regional centres have been included. These are:
(i) five regional centres of Punjabi University, i.e. Guru Kashi Regional Centre, Talwandi Sabo; Punjabi University Regional Centre, Bathinda;
Punjabi University Regional Centre for Information Technology and Management (Mohali): Punjabi University College of Education, Bathinda; Nawab Sher Mohamad Khan Institute of Advanced Studies, Malerkotla; (ii) two regional centres of Guru Nanak Dev University, i.e. Guru Nanak Dev University Regional Centre Gurdaspur, and Guru Nanak Dev University Regional Centre, Jalandhar; and (iii) three regional centres of Panjab University, i.e. Panjab University Regional Centre, Muktsar; Panjab University Regional Centre, Hoshiarpur and Panjab University Regional Centre, Ludhiana. There has been no institution attached with Punjab Agricultural University, Ludhiana ian the form of regional centre comprising any teaching programme. Thus, in the study, the term "Universities of Punjab" refer to the set of above mentioned institutions.
In order to get a genuine approximation of rural students in terms of number and other characteristics, a survey was conducted for each and every class and course from all of the campus teaching departments and regional centres through a pre-tested questionnaire (Appendix I). The survey was executed through the help of the various officials/administrators, heads of the departments, concerned teachers, CWP No.11071 of 2011 -18- student representatives and other known and effective persons besides the members of the study team. In the first round, a list of rural students was prepared from every class, and then questionnaires were got filled from all these rural students. In all, the universe of study comprises of 177 teaching departments as follows: Punjabi University (43 departments), Guru Nanak Dev University (35 departments), Panjab University (44 departments) and Punjab Agricultural University (55 departments). Further, the study has been confined to the departments admitting regular students only. The students of distance education and those appeared privately in various university examinations have been excluded. Moreover, the students registered in doctorate programs are also excluded. Thus, the study is confined to regularly admitted bonafide rural students admitted in various courses of all of the teaching departments on the university campuses and their regional centres. There are some differences in the composition of faculties in terms of departments across the universiteis of the state. To solve this problem, the Punjabi University's composition of faculties has been taken as the base and the faculties of the rest of the universities have been adjusted accordingly. 1.4.2 Objectives of Study The specific objectives of the study are:
1. to work out the share of rural students in the Universities of Punjab;
2. to study the educational background of the rural students admitted in the Universities of Punjab;
3. to explore the educational background and occupation status of the siblings (brothers/sisters) of rural students;
4. to examine the educational background of the parents of rural students;
5. to analyse the socio-economic status of the parents of rural students; and
6. to suggest policy recommendations.
1.4.3 Rural Students:Definition The idea to conduct the study, in fact, originated out of the general feeling and concern emanating from four factors, viz. (i) declining standards of rural schooling, (ii) widening gap between rural and urban educational standards. (iii) systematic exclusion of masses from the quality education under the operation of the new economic policy regime, and (iv) growing tendency on the part of rurally based influential parents to shift their wards to urban schools, mainly on daily-commuting basis.
So, it is held that the share of rural students from the typically rurally located schools declined, over the time period, in the state and national level educational institutions and education based job markets under the cumulative pressure of entrance tests; academic merits; lack of exposure; and deficiency of human, material and social capital on the part of their parents. Thus, these specificities have been given paramount importance in the adoption of the definition of the rural students. So, in this study, the rural student has been defined as below:
In the study, only those students are treated as rural students who have passed either of their matriculation or senior secondary (plus two) examination or both from the rural schools situated anywhere in India. Only those schools are considered as rural schools which do not fall in the area of a Municipal Corporation/Municipal Committee/Nagar Council/Notified Area Committee. It is to be noted that the central thrust of the study was to assess the number of students passed out from rurally located schools entering the universities of the state. Therefore, the present place of residence/stay of the student during study in the universities does not matter so far as the identification of the rural students is concerned. During the study in universities, the student may be residing either in the village or in the hostel or in any urban location. Thus, what matters most for the purpose of identification, main objective of the study, is the location of the school from where a student passed out CWP No.11071 of 2011 -19- either the matriculation or plus two examination or the both." The study summed up as follows:
"To sum up, it is apparent that the rural students from relatively better off sections of society succeeded in entering the university campus departments and regional centres for their higher studies. Their families are found to be better placed in rural society in terms of the educational, social and economic factors. While at the most of undergraduate courses, majority of rural students were doing undergraduate professional courses, whereas the majority of their counterparts in the post-graduate courses were studying Arts and Humanities courses. The majority of rural students who entered the universities were the product of government schools affiliated to the state examination bodies. Only, a small proportion of rural students are able to get scholarships and fee concession. The parental resources were almost the only source of educational finance for the rural students in the universities. Thus, a unique equilibrium has been got established, which works in a systematic manner against the educational interests and higher educational security of the ruralites in the case of higher education. Hence, only a multi pronged strategy pertaining to rural economy, rural education and higher education could mitigate problem of educational deficit at the rural level."
The findings were summed up as follows:
"The study establishes that the presence of rural students, passed-out from the typically rurally located schools, has been very low in the universities of Punjab State. Further, the students from the relatively better off sections of rural society (educationally, economically and socially) succeeded in getting entry in the university campuses and regional centres. The situation as a whole warrants radical changes in the public policy pertaining to the rural school/college education as well as the university level higher education. The policy interventions on the following lines are of dire and immediate necessity:
1. The State must allocate at least six per cent of the state income to the education sector and 30 per cent of it to the higher education in a specified time and systematic manner. This requires doubling of education budget in the state. It can be achieved within a period of five years by increasing it at least twenty per cent per annum.
2. Out of total budget of higher education, the share of universities, government colleges and aided colleges be specifically raised keeping in view the global demands and resource requirements of these sub-sectors.
Moreover, rural sector institutions should get more allocation of funds, even more than the proportion of rural population to bridge the rural- urban divide.
3. The ongoing education system has definitely been showing the strong signs of exclusion process, particularly from the quality education, and that too of the weaker sections consisting of landless labourers; marginal, small and medium sizzed farmers; factory workers; slum dwellers, low level technicians, and low income earners in self employment activities. There is a need to mitigate the educational vulnerability of such sections by strengthening the public provisioning along with the more effective ways of motivation and involvement of the stakeholders.
4. There is a strong need to provide special incentives to students from the weaker sections of society that pass out from the rural schools, and get admission in the universities and other prestigious institutions. The State should finance the study cost of such students by creating a special fund, and reimburse the fees, funds and hostel charges of such students to the concerned institutions.
5. Since there is an organic link among all levels of education- elementary, secondary and tertiary- there is a need to strengthen and improve the quality of education at all the levels. It is recommended that instead of allowing a mushrooming growth of private schools (sub- CWP No.11071 of 2011 -20- standard, ill-equipped and for-profit, albeit teaching shops) without social responsibility, there is a need to strengthen the existing government and private adided-schools in the rural areas.
6. Education at all levels in general, and higher education in particular, deserves a public funding to a large extent due to its social benefits, public returns and externalities. As such public investment in education sector should not be treated as a wasteful expenditure. It is, rather, the most productive investment in human capital. The government must not withdraw from the education sector considering it a soft-target. The history of economic development of various countries testifies that investment in human capital has played most important role in their development.
7. Instead of the lame excuse of resource crunch for justifying government withdrawal from education, the state should resort to more resource mobilization through better tax-compliance (plug tax evasion), bringing more services under tax-net and lowering the size of black economy in the state. It has been often admitted by the successive Finance Ministers of Punjab that there is an under mobilization of tax resources ranging between Rs. 2500 crore to 3000 crore per annum. Keeping in view the proportion of black economy (40 to 45 per cent), it is estimated that the size of black economy in the state during 2004-05 ranged between Rs.31600 crores and Rs.35550 crores per annum. The downsizing of black economy would generate enough resources to finance education and other development activities in the state.
8. The present mechanism of recruitment, administration and control in government owned schools has almost been discredited; as such the recruitment, administration and control of these schools should be vested with some independent, autonomous and transparent authority. Alternatively, all these functions of rural government schools along with full budgetary allocations be handed over to the concerned university (Punjabi University, Patiala; Guru Nanak Dev University, Amritsar; and Panjab University, Chandigarh) as per their jurisdictional areas.
9. The present practice of freezing the aided posts in the private aided colleges/schools must be stopped with immediate effect, and all the posts which were freezed/abolished in the past decade because of retirement of the incumbents must be revived and filled in immediately. The level of aid to private aided college/schools must be restored to its previous level of 95 per cent from the present level of 65 per cent.
10. The state must show more administrative sensitivity to the education sector and should not put it into unnecessary experimentation, uncoordinated policy changes and adhocism. The regular mode of employment of teachers- an accepted practice throughout the world-must be followed more vigorously in the state.
11. Grants and funds to the education sector be released on priority basis and in advance. The aided sector should not suffer on account of delays and squeezes in the release of grants-in-aid and other bureucratic hindrances.
12. Out of the total education budget, some proportion of it be reserved exclusively for capital account to provide physical infrastructure in the schools, colleges and universities. At the university level, sufficient resources be provided for funding research and development activities.
13. For the purpose of enhancing the participation and performance of rural students, particularly from the weaker sections of rural society, a Rural Education Commission be established to workout the modalities and other ways and means to ensure equity in accessibility and affordability of higher education to rural children.
14. The state and educational institutions must make efforts to strengthen the voluntary, philanthropic, diasporic and community funding in the education sector through various forms (incentives, concessions, etc.), particularly in the typically rural, backward and other disadvantageous areas and sections of the society. The state has not yet CWP No.11071 of 2011 -21- realized the full potential of these sources of funding to the education sector. The funds collected by the state under education cess needs to be transferred fully to the education sector.
15. The government colleges in the state have been confronting with severe shortage of teaching staff because no recruitment has been made during the past so many years. So, there is a crying need to fill-up the vacancies immediately.
16. It is imperative to enhance the enrollment in higher education from a very low level of 6-7 per cent. For this purpose, strengthen the school/college education in government sector by (i) allocating more funds; (ii) appointing more regular teachers; (iii) shifting no teacher/post from rural to urban centres; (iv) attracting & retaining the talented teachers through incentives; and (v) punishing work-shirkers at all stages of education.
17. The need is to fine tune and enhance the efficiency of all the government departments dealing with the higher education sector. The universities, too, should earnestly implement the quality control mechanism mandated by the UGC and other statutory agencies in their affiliated colleges.
18. The establishment of neighbourhood campuses/regional centres in the rural areas by the universities would certainly make the higher education more cost effective and accessible to rural students. The experiments of Punjabi University, Patiala during the last couple of years are worth replicating.
19.Education of ruralites in the state is sine qua non for shifting the workforce from agriculture to non-agricultural sectors and for reaping the benefits/dividends of changing global economic scenario. As such, education sector in general and rural education in particular should not be left to the mercy and vagaries of market forces. Public funding and policy intervention along with public-private partnership (in an accountable and transparent manner) are of great necessity. Even the World Bank Reports support the public funding of education.
20. There is a need to establish a School Education Development and Regulatory Authority (SERDA) to prevent excessive commercialization and profiteering in the non-aided private schools. This statutory body should regulate the fee structure, service conditions of teachers & non- teaching staff, and profiteering in the non-aided private schools/colleges.
21. In order to take stock of the ground reality regarding the presence of rural students in other courses, there is a need to conduct such studies in all the degree colleges of the stage, and also in the college/institutes affiliated with Punjab Technical University, Baba Farid University of Health Sciences, Rajiv Gandhi National University of Law, Guru Angad Dev University of Veterinary & Animal Sciences and Thapar Institute of Engineering and Technology (deemed university)."
35. In Sudesh Rani the challenge was to the grant of five additional marks to candidates who had passed eighth and tenth standard examination from schools established and imparting education in the rural areas of Punjab. A large number of writ petitions had then been filed questioning the advertisement for selection of four thousand Educational Service Providers issued on 29.8.2007 against a consolidated salary of Rs. 5400/- per month. The mode of selection specified in the advertisement was that the recruitment would be made strictly on CWP No.11071 of 2011 -22- merit determined under a criteria designed by calculating marks for educational qualifications, experience and the offending five marks for study in the rural areas which was defined as passing the eighth and tenth classes from schools where Gram Panchayats exist. Neither written test nor interview marks were made part of the criteria. It was portrayed before the bench on the strength of the study that there was acute shortage of ETT teachers in Punjab. The learned counsel appearing for the petitioner conceded before the Court that the facts given in the study were not disputed. The learned Advocate General, Punjab appearing for the State in Sudesh Rani while relying upon paragraph 48 of Kailash Chand Sharma v. State of Rajasthan and others; (2002) 6 SCC 562 conceded that appointments on the basis of localism are not sanctioned by the constitutional mandate of equality yet if the attempt of the State to give weightage to the rural candidates, if backed by scientific data, the result could be achieved by relying on the aforesaid study. Paragraph 48 of the judgment of the Supreme Court reads as follows:
"48. Another parting observation. While we realize the need to generate better employment opportunities to the people of rural backward areas and an affirmative action in this regard is not ruled out, any such action should be within the framework of constitutional provisions relating to equality. Equalising unequals by taking note of their handicaps and limitations is not impermissible under the Constitution provided that it seeks to achieve the goal of promoting overall equality. However, measures taken by the State on considerations of localism are not sanctioned by the constitutional mandate of equality. As indicated in the judgment, any attempt at giving weightage to the rural candidates should be backed up by scientific study and considerations germane to constitutional guarantee of equality."
(emphasis supplied)
36. There is no doubt that the study published in September 2006 came into existence after the promulgation of the service rules, 2006. It is also borne on record that the study did not form material or basis in support of grant of five additional marks as defence either on government record or in the written statement and the study was produced by the State at the fag end of arguments at the time of conclusion of the case by the Learned Advocate General, Punjab.
37. The Division Bench made the study as relevant authentic material qualifying as quantifiable data and scientific study as sufficient ground to justify CWP No.11071 of 2011 -23- the action of the State in terms of the exception carved out by the Supreme Court in Kailash Chand Sharma's case in para 48. In Para 32 in Sudesh Rani's case it was observed as follows:
"32. We are also satisfied that the study eloquently sums up the disadvantages suffered by a rural student due to shortage/absence of infrastructure, teachers and the large distances required to be covered for attending school. The weightage impugned in these petitions seeks to redress such disadvantages. In fact, treating unequals such as the urban students as equals to the rural students would obviate against the principles of equality enshrined under Articles 14 and 16 of the Constitution, as laid down by the Hon'ble Supreme Court's judgment in U.P Power Corporation Ltd. v. Ayodhya Prasad Mishra and Anr., 2008 (4) S.C.T. 609: 2008(10) SCC 139, as follows:
" It is well settled that equals cannot be treated unequally. But it is equally well settled that unequals cannot be treated equally. Treating of unequals as equals would as well offend the doctrine of equality enshrined in Articles 14 and 16 of the Constitution."
This measure is also supported by the mandate of Article 38(2) of the Directive Principles which provides that the State shall endeavour to eliminate inequalities in status, facilities and opportunities amongst groups of people residing in different areas.
Consequently, we are of the view that the weightage of 5 additional marks to rural students is fully justified in the facts and circumstances of the case and is not only permitted by the decision of the Supreme Court in Kailash Chand Sharma's case (supra) but the study of the Punjabi University also fulfills the requirements for such weightage set out in the said judgment."
38. In the result, the Division bench took the view firstly, that the Study was found to constitute sufficient material for grant of weightage of five additional marks to rural students and secondly, that due to terrorism in Punjab rural areas were affected the most and youth belonging to those areas were exploited by terrorists which led the affluent to move into the safer havens in urban areas, whereas others who had no option had to stay back.
What is the jurisprudential value of the publications:
39. This question has to be examined from the stand point of quantifiable data as enunciated in Kailash Chand Sharma and M. Nagaraj cases sufficient to uphold reservation and concessions to rural people on principles of domicile and residence and school education imparted in rural areas. Though the credentials of the authors of the report are not doubted, it still remains a private study by three academicians with a disclaimer of the Punjabi University, Patiala that the CWP No.11071 of 2011 -24- University should not be taken as subscribing to the views and suggestions expressed in the study. The University had, however, sponsored the study involving deficient upward academic mobility of rural students to reach university education in Punjab, an idea that was conceived by its Vice Chancellor, S. Swaran Singh Boparai. A perusal of the foreward to the publication reveals that the Vice Chancellor had tasked the academic group from its department of economics to work out the exact proportion of rural students in the Universities of Punjab so that the rural education problems could be highlighted with empirical support, more comprehensively and logically at the highest levels. If legal sanctity were to be attached to the publication/report then the data authentically gathered and analyzed by private persons then such material must be tried and tested by State Government machinery before it can be acted upon. There could possibly be another acceptable way of attaching State sanctity to the study is by the process of adoption of the report by the State Government in terms of its Rules of Business as part of its record of material relied upon in the decision making process with all its checks and balances. In any case, Mr. G.P. Singh, learned Additional Advocate General, Punjab was at pains to persuade us to accept the publication as quantifiable data at the level of ETT for the purposes of employment, recruitment and appointment to public service. The study in any case is not at the level of ETT. There is another publication by the same authors titled "Professional Education in Punjab-Exclusion of Rural Students" published by Punjabi University, Patiala in 2009. This study revealed that during the academic session 2007-08, the proportion of rural students was 3.71% in the higher professional courses run by the five universities of Punjab as against the earlier study of 2006 which highlighted the low share of rural students being 4.07% in the four universities that, i.e., Panjab University, Chandigarh, Punjabi University, Patiala, GNDU, Amritsar and PAU, Ludhiana, during 2005-06. We have been shown table 3.2 at page 37 of the second study which tabulates gender wise number and CWP No.11071 of 2011 -25- proportion of rural students in Professional Education in Selected Universities of Punjab (2007-08) which shows that few rural students make it to professional education as compared to non rural.
40. The recommendations of the authors in the second study are found from pages 103 to 106 of the publication. It has been argued by the same set of authors that freebies alone to the ruralities in different forms will not help the rural-urban divide. Some of the ground level recommendations are reproduced:
"4. There is a strong need to provide special incentives to students from the weaker sections of society that passed-out from the rural schools, and get admission in the universities and other prestigious institutions. The state should finance the cost of study of such students by creating a special fund, and reimburse their fees, funds and hostel charges to the concerned institutions. The state must sponsored the higher study of students getting first division from the rural government school of Punjab.
5. Since all levels of education-elementary, secondary and tertiary-are organically linked with each other there is a need to strengthen and improve the delivery as well as quality of education at all the three levels. It is, thus, recommended that, instead of allowing a mushrooming growth of private schools (sub-standard, ill-equipped and for-profit, albeit teaching shops) without social responsibility, the existing government and private aided schools be strengthened and monitored on regular basis in the rural areas. Further, there must be a regulatory system for the private schools.
6. Education at all levels in general, and higher education in particular, deserves a public funding to a large extent due to its social benefits, public returns and externalities. As such public investment in education sector should not be treated as a wasteful expenditure. It is, rather, the most productive investment in the human resource capital. The government must not withdraw from the education sector considering it a soft-target. The history of economic development of various countries testifies that investment in human capital has played most important role in development.
8. The present mechanism of recruitment, administration and control in government owned schools has almost been discredited; as such the recruitment, administration and control of these schools should be vested with some independent, autonomous, accountable and transparent authority. The present practice of freezing aided posts in the private aided colleges/schools must be stopped with immediate effect and all the posts which were freezed/abolished in the past decade because of retirement of the incumbents must be revived and filled in immediately. The level of aid to private aided college/schools must be restored to its previous level of 95 per cent from the present level of 65 per cent.
12. For the purpose of enhancing the participation and performance of rural students, particularly from the weaker sections of rural society, a Rural Education Commission be established to workout the modalities and other ways and means to ensure equity in accessibility and affordability of higher education to rural children."
41. It has been suggested that there is need to establish a Punjab Education Development and Regulatory Authority (PERDA). This statutory body CWP No.11071 of 2011 -26- if created could deal effectively with the fee structure, service conditions of teachers and non-teaching staff, and the bane of profiteering in the non-aided private schools and colleges in Punjab. Last but not the least, the Authors have recommended that regular sensitization of the political leadership, policy makers, administrators (bureaucracy & judiciary), stake holders (teachers, parents & students) and society at large about the relevance and importance of higher education which is imperative to attain any meaningful results. All the people comprising the aforesaid groups must be conscious about their societal responsibilities and concerns. Work culture at all levels needs to be improved and strengthened. All this would require effective transparent, responsive, accountable and sensitive governance.
42. In our view both the studies can at best be seen as symptomatic of the ills that rural students may face to reach the level of university education in the miniscule proportion. The studies do not address the question of public employment which is required to be governed by constitutional and statutory provisions. In the present case, our concern is with employment and service rules framed under the Panchayti Raj Act, 1994. The Division Bench in Sudesh Rani did not consider the effect of Article 16(3) and Article 35 of the Constitution of India. The Award of 5 additional marks to the candidates who passed 8th and 10th standard examination from rural areas was upheld solely on the basis of the publication of the University which did not form material before the Government for grant of concessions inter alia involving residence and domicile. The studies to our mind do not form quantifiable data and empirical , scientific study originating or sponsored through it own official agencies bearing the stamp of the Government in the matter of public employment to fall in the exception carved out in Kailash Chand Sharma case, and therefore, has not been correctly decided and is not good law. Data culled out from contact with a small group of university students is not the best material to sustain validity of rules of employment and confer benefits of CWP No.11071 of 2011 -27- far reaching consequences or to safely rely upon it. These academic studies did not make any recommendation for employment or grant of marks for rural education at the level of eighth and tenth standard. The ratio of law laid down in Pradeep Jain v. Union of India; AIR 1984 SC 1420 is applicable for purposes of admission to colleges and is not intended to be the law of employment in public services.
43. We now proceed to examine the matter and to answer the questions framed by the Division Bench.
"1. Whether the grant of 5 additional marks to the candidates, who have passed Middle and Matriculation examination from the schools situated in rural areas of Punjab, is sustainable?
2. Whether conditions in Rules or in advertisements that the applicants should be domicile of State of Punjab or Union Territory of Chandigarh, is legal and valid?
3. Whether the reservation to the extent of 70% of the posts amongst those candidates, who have passed Junior Basic Teachers Training or Elementary Teachers Training Course from the State of Punjab is sustainable when the candidates from the other States possess the same or equivalent qualifications?
4. Whether the condition of granting one additional mark for each year of unemployment subject to maximum of 10 marks, is legal and justified?
5. Whether the District-wise recruitment is legal and justified?"
44. Questions No.1 to 3 are essentially issues arising out of requirements as to residence within the State and whether the State legislature or its subordinate rule making authority governing employment can pass a parochial law restricting eligibility of candidates in the manner prescribed in the impugned rules as an exception to Articles 16(1) and 16(2) of the Constitution in the light of Article 15 which empowers the State for making special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.
45. This issue came into sharp focus and engaged the attention of the CWP No.11071 of 2011 -28- Constitution Bench of the Supreme Court in AVS Narsimhas Rao and others v. State of Andhra Pradesh and another; AIR 1970 SC 422. A decision taken by the legislature of the State of Andhra Pradesh to implement what was called Telangana Safeguards was in question whereby all non domicile persons, who had been appointed either directly, by promotion or by transfer to posts reserved under the Andhra Pradesh Public Employment (Requirement as to Residence) Rules, 1959 for domicile of Telangana region would be immediately relieved from service. The vacant post would be filled by qualified candidates possessing domicile qualification etc. All non domicile employees so relieved would become employees of the Andhra region by creating supernumerary posts if necessary. The Telangana area was defined as comprising of territories specified in Section 8 (1) of the States Re-organisation Act, 1956. Persons affected by the decision challenged the Act and the Rules and the proposed action as ultra vires to the Constitution. Interpretation of Article 16 (1) to (3) and its construction was debated to find out the ambit of the law making power of Parliament. The intention of Article 16(1) and (2) is to make every office or employment open and available to every citizen, and inter alia, to make office or employment in one part of India open to citizens in all other parts of India. The third clause then makes an exception. It was amended by the Constitution (Seventh Amendment) Act, 1956. The original words of the clause "under any State specified in the first schedule or any local or other authority within its territory any requirement as to residence within that State" was substituted to read "under the Government" and "State of Union Territory, any requirement as to residence within that State or Union Territory". The Court posed two questions in para 7 of the report which reads thus:
"7. 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 CWP No.11071 of 2011 -29- 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 or State Governments."
46. The first question was answered by the Constitution Bench but the second question posed was left unanswered as it was not found necessary to express any opinion on it in view of the conclusion reached on the first point. On the first question, it was held:-
"10. The claim for supremacy of Parliament is misconceived. Parliament, in this, as in other matters, is supreme only in so far as the Constitution makes it. Where the Constitution does not concede supremacy, Parliament must act within its appointed functions and not transgress them. What the Constitution says is a matter for construction of the language of the Constitution. Which is the proper construction of the two suggested? By the first clause equality of opportunity in employment or appointed 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 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 States 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 an 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. We accordingly reject the contention of Mr. Setalvad seeking to put a very wide and liberal construction upon the words "any law" and "any requirement". These words are obviously controlled by the words " residence within the State or Union Territory" which words mean what they say, neither more nor less. It follows, therefore, that Section 3 of the Public Employment (Requirement as to Residence) Act, 1957, in so far as it relates to Telengana (and we say nothing about the other parts) and Rule 3 of the Rules under it are ultra vires the Constitution."
47. The next decision of importance is Kailash Chand Sharma etc. v. State of Rajasthan and others; 2002 (6) SCC 562. The issue before the Court related to the validity of the selection and consequential appointments made to the posts of primary school teachers by the Zila Parishads of various districts of State of Rajasthan during the year 1998-99. These appeals arose out of a Full Bench judgment of the Rajasthan High Court. The validity of a circular dated 10.6.1998 CWP No.11071 of 2011 -30- issued by the Department of Rural Development and Panchayat Raj, Government of Rajasthan under proviso to Rule 73, Chapter XII of the Rajashthan Panchayati Raj Rules, 1996 which laid down the eligibility criteria for determining merit of a candidate, inter alia Part II of the criteria evolved for fixation of bonus marks for domiciles was as follows:
Domiciles of Rajasthan 10 Marks Residents of District 10 Marks Resident of Rural area of District 05 Marks
48. The validity of this part of the circular was challenged before the Rajasthan High Court which came to be decided by the Full Bench from which the Special Leave Petition in Kailash Chand Sharma arose. The Supreme Court held as follows:
"23. 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 SSC 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 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.
We are, therefore, of the view that the first plea raised by the State which is also found in the counter-affidavit filed before the High Court (as seen from the judgment in Deepak Kumar Suthar's case) is untenable.
27. The above discussion leads us to the conclusion that the award of bonus marks to the residents of the district and the residents of the rural areas of the district amounts to impermissible discrimination. There is no rational basis for such preferential treatment on the material available before us. The ostensible reasons put forward to distinguish the citizens residing in the State are either non-existent or irrelevant and they have no nexus with the object sought to be achieved, namely, spread of education at primary level. The offending part of Circular has the effect of diluting CWP No.11071 of 2011 -31- merit, without in any way promoting the objective. The impugned circular dated 10.6.1998 in so far as the award of bonus marks is concerned, has been rightly declared to be illegal and unconstitutional by the High Court.
28. 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 vs. Raj Kumar (AIR 1982 SC 1301) is illustrative of the problem created by vague or irrelevant criteria. In that case a rule was made by the State of Maharshtra that a candidate will be considered a rural candidate if he had passed SSC Examination held from a village or a town having only 'C' type municipality. The object of the rule, as noticed by this Court, was to appoint candidates having full knowledge of rural life so that they would be more suitable for working as officers in rural areas. The rule was struck down on the ground that there was no nexus between classification made and the object sought to be achieved because "as the rule stands, any person who may not have lived in a village at all can appear for SSC Examination from a village and yet become eligible for selection". The rule was held to be violative of Article 14 and 16. When no guidance at all is discernible from the impugned circular as to the identification of the residence of the applicants especially having regard to the indefinite nature of the concept of residence, the provision giving the benefit of bonus marks to the rural residents will fall foul of Art. 14." (underlined for emphasis)
49. In Pradeep Jain the Supreme Court was concerned with the question whether residential requirement or institutional preference in admissions to technical and medical colleges was constitutionally permissible in the light of Articles 15(1) and 15(4). P.N. Bhagwati J. speaking for the Court expressed prima facie opinion with respect to residential requirement in the field of public employment in the following words:
"We may point out at this stage that though Article 15 (2) clauses (1) and (2) bars discrimination on grounds not only of religion, race, caste or sex but also of 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 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 and having regard to the expansive meaning given to the word `State' in Ramana Dayaram Shetty v.
International Airport Authority of India & Ors., it is obvious that this constitutional prohibition would also cover an office under any local or other authority within the State or any corporation, such as a public sector corporation which is an instrumentality or agency of 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 CWP No.11071 of 2011 -32- 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 wide spread. Parliament has in fact exercised little control over these policies of States. The only action which Parliament has taken under Article 16 (3) giving it the right to set residence requirements has been the enactment of the Public Employment (Requirement as to Residence) Act, 1957 aimed at abolishing all existing residence requirements in the States and enacting exceptions only in the case of the special instances of Andhra Pradesh, Manipur, Tripura and Himchal Pradesh. There is therefore at present no parliamentary enactment permitting preferential policies based on residence requirement except in the case of Andhra Pradesh, Manipur 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 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." (emphasis added)
50. Pradeep Jain involved interpretation of Articles 15 (1) and 15 (4) of the Constitution in a case of admission to medical seats yet the opinion expressed on Article 16 (3) though may be obiter dicta but due weight has to be attached to it. The refrain of the Supreme Court in the paragraph reproduced above is that Parliament has exercised little control over policies of localism. We feel that such insular policies have potential to break the federal structure gifted by the makers of the Constitution for a united India which is a sacrosanct and onerous duty of the constitutional Courts to preserve and to strike down and stub parochialism wherever and whenever it raises its ugly head.
51. In Deepak Kumar Surthar and another v. State of Rajasthan and others; 2000 (2) S.C.T. 171, B.S. Chauhan J. (as his Lordship then was) speaking for the Full Bench of the Rajasthan High Court, from which decision connected SLPs were carried and decided in Kailash Chand Sharma held lucidly in paragraphs 25, 26, 28, 35, 40, 42 and 43 as follows:
CWP No.11071 of 2011 -33-
25. The Court further held that a rule placing a rural candidate in advantageous position by a sheer incident of his passing the S.S.C. Examination from the rural area, or being a candidate from rural area, and as it prefers an advantage over all others by arbitrary addition of 10% of marks, which has no rational nexus or connection with the object of getting the best candidate suitably adapted to the rural area and such a rule cannot be held to be valid.
26. The said judgment was considered, approved and followed by the Hon'ble Supreme Court in V.N. Sunanda Reddy v. State of Andhra Pradesh, AIR 1995 SC 914: 1995 Lab IC 415: (SC) 1995(2) SCT 579 wherein the Hon'ble Apex Court struck down the Government Order providing for 5% weightage to the candidates who had passed the examination in Telugu language for the public employment, being arbitrary and unconstitutional for the reason that the rule did not have any rational nexus to the object sought to be achieved, and providing any weightage on such a consideration was found to be violative of Clauses (1) and (2) of Article 16 of the Constitution. All the candidates possessing the minimum requisite educational qualification and otherwise eligible, who applied in response to an advertisement, had to be assessed on the basis of their relative merit and providing for such a weightage on the consideration of medium of examination would change the criteria of selection and relative merit would stand frustrated and would become otiose. A candidate by gaining weightage on the ground of medium of examination, cannot be permitted to steal a march over other meritorious candidates standing higher up in the merit. The Apex Court also referred to the judgment of Nine Judges' Bench of the Hon'ble Supreme Court in Indra Sawhney v. Union of India (Mandal Commission), AIR 1993 SC 477: 1993 Lab IC 129: (SC) 1993(1) SCT 448 wherein it has held that it has to be borne in mind that "weightage may be given only as per the Constitutional Sanction and not beyond it."
28. Thus, it was clearly held that the requirement of residence in a particular place, would be unconstitutional as a condition of eligibility or for giving any weightage for employment under the State.
35. Therefore, the object being selection of the meritorious and deserving, tilting of the scale against the more meritorious by providing for weightage for being resident of the same district or being an agristic, is arbitrary, unreasonable and invalid. The incident, on the basis of which the bonus marks are provided, is inherent and uncertain but has the potentiality of converting the merit into de-merit and de-merit into merit. Such a provision must not be countenanced and deserves to be empathetically rejected. Giving any weightage which has no relation to and connection with the merit and excellence of a candidate, is undesired and Court cannot have any hesitation to declare it invalid for the reason that it will out-strip the more meritorious candidates. There i no guarantee that a person belonging to the same district for which the posts have been advertised, or a resident of a rural area, would work with zeal and enthusiasm and would spread education in rural area. It depends upon the nature of the person and his convictions and self-imposed discipline. Such expectations are not based on any valid reason and if "the best potential in these field is cold-shouldered for populist considerations garbed as ''weightage', the victims in the long run may be the people themselves." Thus, the explanation furnished by the respondents in support of the policy decision cannot be said to be valid and the Circular has been issued in flagrant violation of the Constitution mandate and is ultra vires.
40. Thus, in view of the above, we are of the considered opinion that the rural masses, which form 80% of the total population of this country, do not constitute homogeneous class in itself, nor can they be treated as a class. Any classification on the ground of being "rural" or "urban" is CWP No.11071 of 2011 -34- not permissible in our Constitutional Scheme. The object to be achieved by the Circular that it would attract the rural people to get education or after giving employment, to serve the rural population, cannot be achieved by giving those candidates any weightage. In public employment, every applicant knows that transfer is an incident of service and if he joins the service, he can be asked to serve in rural area and if he joins it voluntarily and willingly, he cannot refuse to serve in rural area, as in case of non- compliance of transfer/posting order, he would expose himself to the disciplinary proceedings under the relevant Statutory Rules. (Vide Gujarat Electricity Board. v. Atmaram Sungomal Poshani, AIR 1989 SC 1433: 1989 LAB IC 1374: 1989(2) R.C.R. (Criminal) 210). Even to give any bonus marks to urban candidate, has no nexus to the object to be achieved. There can be no ground of preference/weightage/advantage by any means on the ground of place of birth or residence as it would be violative Arts. 14, 15 and 16 of the Constitution and, thus, void.
42. The criteria laid down as per the policy decision provided for 10% weightage to the candidates of the district for which the posts are advertised and a further weightage of 5% for an agristic. The merit list has to be prepared according to the marks obtained by him throughout his academic career. A candidate who secured throughout First Division, if could secure 65% marks in selection he would be superseded by a candidate belonging to rural area even if latter secured only 50% marks by getting 15% bonus marks and even by a candidate belonging to urban area, who could secure 55% marks in selection. The merit of the candidate is converted into demerit merely by an incident that he is not a resident of the district for which the posts have been advertised or an agristic. Unfortunately merit of the suitable candidate is being ignored on unconstitutional and relevant consideration, which may lead to total subservience and further to a large deep malaise in the efficiency of the administration. It also leaves meritorious candidates frustrated and demoralised. Mutilation of the country on such irrelevant consideration is not permissible as it would run counter to the principle of equality which clearly provides that no person can have any weightage/preference on the ground of place of birth or residence. The doctrine of equality enshrined under Article 16 of the Constitution provides for a dynamic concept and it cannot be let loose on considerations not permissible under the Constitutional provisions. In public employment, there has to be an effort to select most meritorious excellent candidates. The only limitation which this criteria can be subjected to is the reservations provided under the Constitution. The State has already protected the interests of not only of the candidates belonging to scheduled castes, scheduled tribes and other backward classes but also of women. This kind of weightage would lead to a complete go-bye to the merit of the candidates and would seriously affect the efficiency of administration/teaching. The concept of equality cannot be permitted to be converted into an empty slogans, nor the State can be permitted to render the said doctrine nugatory on any unconstitutional criteria.
43. In view of the above, we answer the reference holding that any kind of weightage/advantage in public employment in any State Service is not permissible on the ground of place of birth or residence and the Clause in the Circular providing for bonus marks on the ground of being resident of the same district, for which the posts are advertised, or on the ground of being a resident of urban area or rural area, is void ab initio."
(emphasis supplied)
52. In Dr. Narayan Sharma and another v. Dr. Pankaj Kumar Lekhar; (2000) 1 SCC 44, the Supreme Court dealt with the question of reservation of CWP No.11071 of 2011 -35- seats for doctors, who had worked at least for five years on regular basis in any Health Centre/Institution, which was not situated in the municipal area, held that a provision for reservation must be within reasonable limits; reasonable classification based on intelligible differentia is permissible to give effect to Articles 15(1), 15(4) and 29(2); There can be reservation for person belonging to areas which are socially and educationally backward; admission to post graduate courses should be based strictly on merit; the measurement of merit must be on uniform standard; no dilution of standards in higher educational courses and in particular, post graduate courses can be tolerated and the final dictum laid down is that a rural area is not a class by itself and cannot be considered to be socially and educationally backward merely because it is a rural area.
53. In Mahender Kumar and another v. State of Haryana; 2008 (4) SLR 451, the Division Bench of this Court struck down a provision in the Haryana Primary Education (Group-C) District Cadre Service Rules, 1994, the Haryana State Education School Cadre (Group-C), Service Rules 1998 and the Haryana State Education Lecturer School Cadre (Group-C), Service Rules, 1998 conferring 50% reservation in favour of rural candidates and 33% for women who had acquired matriculation qualification from a school situated in a rural area of Haryana as unconstitutional and violative of fundamental rights of candidates left out. However, 33% reservation of posts in favour of women was upheld being horizontal in nature. This Court after noticing several judgments also relied upon the Constitution Bench decision in M. Nagaraj and others v. Union of India and others; (2006) 8 SCC 212 on the question of 'extent of reservation' while dealing with reservation for Scheduled Castes and Scheduled Tribes where the Supreme Court held that the State was not bound to make reservation but if it wished to exercise its discretion and make such provision, it had to collect quantifiable data showing backwardness of class and inadequacy of representation of that class in public employment in addition to compliance of Article 335, held as follows: CWP No.11071 of 2011 -36-
"17. In the case in hand, the State has failed to apprise the Court of any quantifiable date, if any, collected by it so as to show that those youths, who had acquired matriculation qualification from a school situated in a rural area of the State, were socially and educationally backward. In the absence of such a data being made available, this Court will find it difficult to uphold the reservation made by the State to the extent of 50% of the seats by reserving them for such like youth, whom it addresses as rural youth."
54. Grant of five additional marks to candidates who have passed middle and matriculation examination from school situated in rural areas of Punjab can be justified only on the touchstone of Article 15(5) which enables the State to make special provision for advancement of any socially and educationally backward classes. This would necessitate a finding that all students of eighth and tenth standard passing out of school situated in rural areas would form a single homogenous class of socially and educationally backward classes. Mere fact that a student has passed out from the rural school would not make him per se socially and educationally backward by virtue of residence in rural area. A distinction would have to be drawn between the purpose and object of Articles 15(4) and 16 (3) & (4). The expression socially and educationally backward classes has been used in Article 15(4) whereas these words have not been so used in Article 16(4) which deals with equality of opportunity in matters of public employment. It is one thing to give preference to rural students in rural schools but it is another matter to give an advantage to rural students by awarding five marks as the impugned rule grants in matters of public employment putting other eligible candidates to disadvantage. It has been argued before us by the learned counsel for the petitioners that there are many schools in Punjab technically falling in rural areas which adjoin major cities and draw students from urban areas and they would also have the advantage of five additional marks in recruitment to public service. Therefore, the so called rural-urban divide would get smudged and amount to reverse discrimination. Place of residence in urban or rural area would lose significance.
55. Mr. G.P. Singh, learned Additional Advocate General, Punjab, CWP No.11071 of 2011 -37- appearing for the State has argued that the objective of classification amongst rural and urban students and granting of five marks to the rural background (who have passed their 8th and 10th Classes from rural area) is based upon intelligible differentia with the object sought to be achieved and was intended to bring them at par with the urban candidates and in order to provide them equality of opportunity as provided under Articles 14 and 16 (1) of the Constitution. He further argued that the considerations of adequate representation as required under Article 16(4) are not necessarily the same as required under Article 16(1). He submits that the five marks would remove the handicap the rural students face in seeking employment under the State as levels of education in rural areas is of much lower standard than urban schools and would give them a head start. We are unable to persuade ourselves to accept the contentions for the reason that we have no material or data on the basis of which such a conclusion can be reached. A well intended act may not be lawful. To quote T.S. Eliot- 'Most of the evil in this world is done by people with good intentions'. We do not see how grant of five additional marks for those passing out from rural schools would bridge the gap between the rural and urban folk or bring them at par with each other in absence of any empirical and quantifiable scientific data to determine the question. Principles underlying admission to schools and colleges and the protection afforded by Article 15(4) in favour of the State are different when applied to appointments to public posts governed by Article 16 and the equality clause of Article 14. We tend to think that grant of five additional marks is anti-meritarian which has no nexus with the object sought to be achieved for finding the best teachers to teach in Panchayati Raj schools. Therefore, the impugned rule which grants these additional marks is unsustainable. There is a further argument canvassed by the learned counsel for the petitioners that in working out the percentage of marks, say five additional for studying in rural schools in 8th and 10th standard measuring them where total marks are different for different posts of say 100 and 214 marks etc. there is a stark and CWP No.11071 of 2011 -38- destructive variation resulting from 2% to 20%. This phenomena could not be satisfactorily explained by Mr G.P.Singh.
56. We should not fail to note that the amended rule 10 (1) (b) of the impugned rules which requires passing of Punjabi as a teaching subject in J.B.T and E.T.T courses as an essential qualification for appointment is itself a salutary provision for imparting teaching to children studying in Zila Parishad schools in Punjab whose first language and mother tongue is Punjabi and is eminently legal and valid and without doubt within the competence of the rule making authority. This provision would itself act as a barrier in the process of elimination of candidates to carry out the purpose of the rules in search of talent if that is what the Government of Punjab ultimately meant in esssence, in overhauling the rules.
57. Questions No.2 and 3 are connected and can be dealt with together since both are founded in one way or the other to our mind on domicile and residence.
Question No.2: Whether conditions in Rules or in advertisements that the applicants should be domicile of State of Punjab or Union Territory of Chandigarh, is legal and valid?
& Question No.3: Whether the reservation to the extent of 70% of the posts amongst those candidates, who have passed Junior Basic Teachers Training or Elementary Teachers Training Course from the State of Punjab is sustainable when the candidates from the other States possess the same or equivalent qualifications?
58. The impugned amended Rule 11 reserves 70% of the posts for such candidates as have passed J.B.T or E.T.T courses of two years duration as specified in Rule 10 from institutions situated in the State of Punjab excluding consideration of candidates from other States altogether but with the rider that the aforesaid two courses if earned from any other State would be treated at par if it is declared equivalent and duly recognized by the Punjab Government. The door for entry of outsiders is restricted to 30% of the posts under Rule 11 (b) who may have done the aforesaid two course from outside the State which have been declared equivalent and duly recognized by the Punjab Government but the door is CWP No.11071 of 2011 -39- virtually shut by application of Rule 10 (d) which lays down the further qualifications that a candidate has also to be domicile of the State of Punjab or the Union Territory of Chandigarh even if he has obtained the minimum qualification from another State. We have no doubt that a combined reading of Rules 10 and 11 of 2006 Rules as amended by notification dated 18.4.2011 is domicile and residence based reservation which only Parliament can legislate in terms of Article 16(3). The word "State" has not been employed in Article 16(3). Parliament in its wisdom has reserved power only unto itself to foster the concept of one India and to marginalize the "sons of the soil theory" and to give meaningful effect to Article 14 and 16 of the Constitution. The Punjab Panchayati Raj Primary Teachers (Recruitment & Conditions of Service) Rules, 2006 have been framed in exercise of power under Section 196 read with Section 227(zb) for services to be constituted under sub-section (2) of Section 196 which former provision confers power on the State Government to make rules including rules of service. These rules though cannot be elevated to the status of service rules framed under proviso to Article 309 of the Constitution nonetheless they are statutory and their validity would have to be tested on the anvil of fundamental rights enshrined in Part-III of the Constitution of India.
59. A similar issue has been examined by the Supreme Court in the State of Andhra Pradesh and others versus U.S.V. Balaram; AIR 1972 SC 1375 though in the context of admission to professional colleges. The validity of a Government order regulating admission to Government Colleges to the Integrated M.B.B.S course in the State of Andhra Pradesh was under challenge. The impugned order laid down the method of admissions by holding an entrance test and providing a pattern of allotment of seats by reference to certain qualifying examinations and dividing eligibility based largely of students who had passed the qualifying examination for the Pre-University Course (PUC) and those who had passed the Higher Secondary Course (Multipurpose) (HSC) accordingly ear CWP No.11071 of 2011 -40- marking seats on the basis of the qualifying examination taken by them. The challenge was on the ground that the State has no power or authority to determine admission by reference only to the result of the entrance test thereby ignoring the result of the qualifying examination taken by the candidate. The Division Bench of the High Court reversed the judgment of the learned Single Judge and struck down the provisions as illegal. The State of Andhra Pradesh appealed against the order before the Supreme Court. The Supreme Court held as follows:
47. Mr. Tarkunde referred us to AIR 1968 SC 1012 where the validity of the scheme of districtwise distribution of seats as per the rules framed by the State of Madras, to the Medical Colleges, was challenged as violative of Art. 14. The State attempted to justify the said method of districtwise distribution on the ground that if districtwise distribution is not made, the candidates from Madras City would have an advantage and would secure the largest number of seats in the Medical Colleges, which will not be justified on the basis of the proportion of population of the Madras City.
The challenge based on discrimination under Art. 14 was accepted by this Court and it was held that the allocation of seats districtwise results in discrimination and there is no nexus between the districtwise distribution and the object to be achieved, namely, admission of the best talent from the sources indicated in the rules. On this ground, the allo- cation of seats on districtwise basis was struck down as violative of Art. 14.
48. Similarly unitwise distribution of seats in the Medical Colleges in Tamil, Nadu was declared by this Court in A. Periakeruppan v. State of Tamil Nadu; A.I.R. 1971 S.C. 2303 as violative of Arts. 14 and 15.
49. These two decisions clearly establish that a classification which has no rational basis and has no relation to the object sought to be achieved is violative of Art. 14.
50. It is not necessary for us to refer to the various decisions laying down the contents of Art. 14. Suffice it to say that it does not forbid reasonable classification. In order to pass the test of permissible classification, two conditions must be fulfilled : (1) The classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from those left out of the group, and (2) the differentia must have a rational relation to the object sought to be achieved.
51.It is no doubt open to the State to prescribe the sources from which the candidates are declared eligible for applying for admission to the Medical College; but when once a common Entrance Test has been prescribed for all the candidates on the basis of which selection is to be made, the rule providing further that 40% of the seats will have to be reserved for the H.S.C. candidates is arbitrary. In the first place, after a common test has been prescribed there cannot be a valid classification of the P.U.C. and H.S.C. candidates. Even assuming that such a classification is valid, the said classification has no reasonable relation to the object sought to be achieved. namely, selecting the best candidates for admission to the Medical Colleges. The reservation of 40% to the H.S.C. candidates has . no reasonable relation or nexus to the said object.1. Hence we agree with the High Court, when it struck down this reservation under rule 9 contained in G. No. 1648 of 1970 as violative of Art. 14"
60. Reserving a certain percentage of posts/vacancies under the CWP No.11071 of 2011 -41- impugned rules to accord preferential treatment to such candidates who have passed the J.B.T or E.T.T. Courses from within the State of Punjab is another facet of localism based on domicile and residence within the State and the issue needs to be examined from the perspective of overarching Article 16 (3) operating as an exception to Articles 16 (1) and 16 (2) of the Constitution. J.B.T and E.T.T qualifications or qualifications equivalent thereto can well be possessed by candidates from other States as well. The process of granting equivalence is a tardy process which would have to go through the mill of official machinery and many lives meanwhile may be lost to Government jobs in antithesis to just what the State intends by awarding 1 mark for every year of service lost without a job and to remove the handicap of non-filling of posts for a long time. Though it cannot be disputed that the State has unbridled power to grant equivalence to academic qualifications of degrees, diplomas and certificates etc. earned from institutions outside the State for purposes of recruitment of public posts under the State and in connection with the affairs of the State yet if such preferential and insular treatment is substantially residence or domicile based it would run foul of the principles laid down in Kailash Chand Sharma. Here is a rule which goes beyond equivalence and recognition of E.T.T and J.B.T courses by putting further burden of domicile under Rule 10(1) (d) restricting domicile to State of Punjab or Union Territory, Chandigarh. The rule would give unfair advantage to candidates from Punjab restricting the competition to the exclusion of other eligible candidates protected by Articles 16 (1) and 16(2) and by the equal opportunity clause protecting outsiders who may wish to compete for public office under the State.
Such rule would be sustainable only in case Parliament authorizes it. The State legislature and the subordinate rule making authority under the Punjab Panchayati Raj Act would transgress its authority and invade the field occupied by Article 16 (3). All eligible candidates have a fundamental right under Articles 14 and 16 to compete for direct recruitment to public office in any State, other than the CWP No.11071 of 2011 -42- exempted States under Article 16 (3) on an all India basis or if Parliament ordains as it has done for States like Himachal Pradesh, Manipur, Tripura and the Telangana area of Andhra Pradesh by enacting special provisions through the Public Employment (Requirement as to Residence) Act, 1957. The two groups insiders and outsiders form a single homogenous class for employment. Reserving 70% of the posts to Punjab candidates is not only discriminatory but has apparently no nexus with the object sought to be achieved which is not merely employment or recruitment but the larger canvas of employability after 'education' for which the rule is meant to serve consistent with the efficiency of administration in the field of education, the mother of all human endevour and progress. The respondent-
State cannot be permitted to breed localism, insularity or fear of 'foreigners' or what is described as xenophobia. We are inclined to think that State sponsored xenophobia is anathema to the Constitution. We had called for the file containing the original record to examine the decision making process leading to the impugned amendments. The record was produced by Mr. G.P. Singh. We have examined the same on the question of 70%:30% qua question No.3 and award of 5 additional marks qua question No.1 and 1 additional mark for unemployment but have not been enlightened much by it.
61. In Roshan Lal Tandon v. Union of India; AIR 1967 SC 1889, The Supreme Court dealt with an offending rule of promotion based on reservation of posts which ear marked 50% of the vacancies to be filled from Apprentice Train Examiners in the Railways who successfully have completed the prescribed four years apprenticeship and the remaining 50% of the vacancies being filled by promotion of skilled artisans. In para 5 of the report, the Court held:
"In the counter-affidavit respondent No. 1 has denied that there was any violation of the guarantee under Arts. 14 and 16 of the Constitution. It was conceded that prior to April 1, 1966 promotion to the post of Grade 'C' Train Examiner was on the basis of seniority-cum-suitability but the impugned notification was issued by the first respondent because it Was decided that the posts of senior Train Examiners in Grade 'C' should be filled by men possession adequate technical knowledge and so the period of training of senior Train Examiners was increased and it was decided that in future 80 per cent of the vacancies in 'C' grade should be filled CWP No.11071 of 2011 -43- directly by Apprentice Train Examiners and the remaining 20 per cent was to be made available for recruitment from the category of Train Examiners to which the petitioner belonged. This recruitment of 20 per cent vacancies was to be made on the basis of merit. It was said that the reorganisation of the Service was made with a view to obtain a better and more technically trained class of Train Examiners. The reason was that there were more complicated designs. of Carriages and Wagons, acquisition of modern type of Rolling Stock and greater speed of trains under dieselisation and electrification programmes. It was. considered that there should be a better calibre of technically trained and technically qualified personnel for proper maintenance and safety of the Rolling Stock. In view of the decision to recruit Apprentice Train Examiners directly in 'C' Grade with effect from April 1, 1966 those who were Apprentice Train Examiners in Grade 'D' before that date had to be upgraded in the scale of Rs. 205-280. It was therefore thought that these posts should be upgraded "so that there should be parity of treatment with the Apprentice Train Examiners who were to join after April 1, 1966".
The first respondent has also controverted the allegation of the petitioner that the procedure outlined in the impugned notification dated October 27, 1965 in regard to theupgraded vacancies was discriminatory. The main question to be considered in this case is whether the notification by the first respondent dated October 27, 1965 is violative of Arts. 14 and 16 of the Constitution in so far as it makes a discrimination against the petitioner for promotion to Grade 'C'. According to the impugned notification the existing Apprentice Train Examiners who had already been absorbed in grade 'D' by March 31. 1966 should first be accommodated in grade 'C' in 80% of the vacancies reserved for them without undergoing any selection. With regard to 20% of the vacancies there is a reservation in favour of the departmental Train Examiners, but the promotion is by selection and not by the test of seniority- cum- suitability which prevailed before the date of the impugned notification. It was not disputed by Mr. Mehta on behalf of the petitioner that the Railway Board was competent to say that with effect from April 1, 1966 vacancies in the Entry grade posts of Train Examiners should not be filled from Apprentice Train Examiners upto 50% but should be exclusively filled by promotion from amongst artisan staff. As regards the recruitment to grade 'C', the impugned notification states that with effect from April 1, 1966 all the Apprentice. Train Examiners on successful completion of their training should be straightaway brought on to the scale Rs. 205-280 instead of being first absorbed in scale Rs. 180-6-240 as at present. The period of training was also increased to 5 years on completion of which they should be put on to the working posts in scale Rs. 205-280. So far as this portion of the notification is concerned, Counsel for the petitioner did not raise any constitutional objection. But the contention of the petitioner is that the following portion of the notification was. constitutionally invalid:
"The Apprentice TXRS. who have already been or will be absorbed in scale Rs. 180-240 upto 31- 3-66 should first be accommodated in scale Rs. 205-280 against the quota 80% vacancies reserved for them. Such staff should not be required to undergo a 'Selection' before being absorbed in that grade. The upgraded vacancies in scale Rs. 205-280 left over after earmarking those for the apprentices under training on 2-4-66 should be filled by promotion of TXRs in scale Rs. 180-240 on a selection basis."
In our opinion, the constitutional objection taken by the petitioner to this part of the notification is well-founded and must be accepted as correct."
62. Mr. Patwalia in his address before the Court has extensively referred to Indira Sawhney v. Union of India, 1992 (Supp) 3 SCC 217 and especially its CWP No.11071 of 2011 -44- paragraphs 74, and 741, 743, 744, 746, 786 ,787, 796, 797 of the majority view to broadly outline the interplay and intertwining of Articles 15 and 16 of the Constitution in the context of service jurisprudence and to draw distinction between the expressions 'socially and educationally backward classes' employed in Article 15(4) and 'backward class' used in Article 16. Mr. Patwalia and Mr. Chatrath submit that Article 16 (4) enables the State to make provision for reservation in appointments in favour of any backward class of citizens but when the concept of requirement of residence is introduced for making public appointments, the State loses power to legislate to the will of Parliament exercisable exclusively by it under Article 16 (3) read with Article 35(a)(i). This would necessitate reproduction of the aforesaid paragraphs. They read:
"74. In Triloki Nath v. State of J&K(II) AIR 1969 SC 1 Shah, J speaking for the Constitution Bench has reiterated the meaning of the word 'class' as defined in the case of Sagar14 and added that "for the purpose of Article 16(4) in determining whether a section forms a class, a test solely based on caste, community, race, religion, sex, descent, place of birth or residence cannot be adopted, because it would directly offend the Constitution."
741. In M.R.Balaji v. State of Mysore AIR 1963 SC 649 it was held
-- "there is no doubt that Article 15(4) has to be read as a proviso or an exception to Articles 15(1) and 29(2)". It was observed that Article 15(4) was inserted by the First Amendment in the light of the decision in State of Madras v. Smt. Champakam Do Rai Rajan AIR 1951 SC 226, with a view to remove the defect pointed out by this court namely, the absence of a provision in Article 15 corresponding to clause (4) of Article 16. Following Balaji it was held by another Constitution Bench (by majority) in T. Devadasan v. Union of India AIR 1964 SC 179 -- "further this Court has already held that clause (4) of Article 16 is by way of a proviso or an exception to clause (1)". Subba Rao, J, however, opined in his dissenting opinion that Article 16(4) is not an exception to Article 16(1) but that it is only an emphatic way of stating the principle inherent in the main provision itself. Be that as it may, since the decision in Devadasan, it was assumed by this Court that Article 16(4) is an exception to Article 16(1). This view, however, received a severe setback from the majority decision in State of Kerala v. N.M. Thomas (1976) 2 SCC 310. Though the minority (H.R. Khanna and A.C. Gupta, JJ) stuck to the view that Article 16(4) is an exception, the majority (Ray, CJ, Mathew, Krishna Iyer and Fazal Ali, JJ) held that Article 16(4) is not an exception to Article 16 (1) but that it was merely an emphatic way of stating a principle implicit in Article 16(1). (Beg, J took a slightly different view which it is not necessary to mention here.) The said four learned Judges -- whose views have been referred to in para 713 -- held that Article 16(1) being a facet of the doctrine of equality enshrined in Article 14 permits reasonable classification just as Article 14 does. In our respectful opinion, the view taken by the majority in Thomas is the correct one. We too believe that Article 16(1) does permit reasonable classification for ensuring attainment of the equality of opportunity assured by it. For assuring equality of opportunity, it may well be necessary in certain situations to CWP No.11071 of 2011 -45- treat unequally situated persons unequally. Not doing so, would perpetuate and accentuate inequality. Article 16(4) is an instance of such classification, put in to place the matter beyond controversy. The "backward class of citizens" are classified as a separate category deserving a special treatment in the nature of reservation of appointments/posts in the services of the State. Accordingly, we hold that clause (4) of Article 16 is not exception to clause (1) of Article 16. It is an instance of classification implicit in and permitted by clause (1). The speech of Dr Ambedkar during the debate on draft Article 10(3) [corresponding to Article 16(4)] in the Constituent Assembly -- referred to in para 693 -- shows that a substantial number of members of the Constituent Assembly insisted upon a "provision (being) made for the entry of certain communities which have so far been outside the administration", and that draft clause (3) was put in in recognition and acceptance of the said demand. It is a provision which must be read along with and in harmony with clause (1). Indeed, even without clause (4), it would have been permissible for the State to have evolved such a classification and made a provision for reservation of appointments/posts in their favour. Clause (4) merely puts the matter beyond any doubt in specific terms.
743. The question then arises whether clause (4) of Article 16 is exhaustive of the topic of reservations in favour of backward classes. Before we answer this question it is well to examine the meaning and content of the expression "reservation". Its meaning has to be ascertained having regard to the context in which it occurs. The relevant words are "any provision for the reservation of appointments or posts". The question is whether the said words contemplate only one form of provision namely reservation simplicitor, or do they take in other forms of special provisions like preferences, concessions and exemptions. In our opinion, reservation is the highest form of special provision, while preference, concession and exemption are lesser forms. The constitutional scheme and context of Article 16(4) induces us to take the view that larger concept of reservations takes within its sweep all supplemental and ancillary provisions as also lesser types of special provisions like exemptions, concessions and relaxations, consistent no doubt with the requirement of maintenance of efficiency of administration -- the admonition of Article 335. The several concessions, exemptions and other measures issued by the Railway Administration and noticed in Akhil Bharatiya Soshit Karamchari Sangh v. Union of India (1981) 1 SCC 246 are instances of supplementary, incidental and ancillary provisions made with a view to make the main provision of reservation effective i.e., to ensure that the members of the reserved class fully avail of the provision for reservation in their favour. The other type of measure is the one in Thomas. There was no provision for reservation in favour of Scheduled Castes/Scheduled Tribes in the matter of promotion to the category of Upper Division Clerks. Certain tests were required to be passed before a Lower Division Clerk could be promoted as Upper Division Clerk. A large number of Lower Division Clerks belonging to SC/ST were not able to pass those tests, with the result they were stagnating in the category of LDCs. Rule 13-AA was accordingly made empowering the Government to grant exemption to members of SC/ST from passing those tests and the Government did exempt them, not absolutely, but only for a limited period. This provision for exemption was a lesser form of special treatment than reservation. There is no reason why such a special provision should not be held to be included within the larger concept of reservation. It is in this context that the words "any provision for the reservation of appointments and posts" assume significance. The word "any" and the associated words must be given their due meaning. They are not a mere surplusage. It is true that in Thomas it was assumed by the majority that clause (4) permits only one form of provision namely CWP No.11071 of 2011 -46- reservation of appointments/posts and that if any concessions or exemptions are to be extended to backward classes it can be done only under clause (1) of Article 16. In fact the argument of the writ petitioners (who succeeded before the Kerala High Court) was that the only type of provision that the State can make in favour of the backward classes is reservation of appointments/posts provided by clause (4) and that the said clause does not contemplate or permit granting of any exemptions or concessions to the backward classes. This argument was accepted by Kerala High Court. This Court, however, by a majority (Ray, CJ, Mathew, Krishna Iyer and Fazal Ali, JJ) reversed the view taken by Kerala High Court, holding that such exemptions/concessions can be extended under clause (1) of Article 16. Beg, J who joined the majority in upholding the validity of notification rested his opinion on a different basis. According to him, the exemption provided by impugned notification was indeed a kind of reservation and was warranted by and relatable to clause (4) of Article 16 itself. This was because -- according to the learned Judge -- clause (4) was exhaustive of the provisions that can be made in favour of the backward classes in the matter of employment. We are inclined to agree with the view taken by Beg, J for the reasons given hereinabove. In our opinion, therefore, where the State finds it necessary
-- for the purpose of giving full effect to the provision of reservation to provide certain exemptions, concessions or preferences to members of backward classes, it can extend the same under clause (4) itself. In other words, all supplemental and ancillary provisions to ensure full availment of provisions for reservation can be provided as part of concept of reservation itself. Similarly, in a given situation, the State may think that in the case of a particular backward class it is not necessary to provide reservation of appointments/posts and that it would be sufficient if a certain preference or a concession is provided in their favour. This can be done under clause (4) itself. In this sense, clause (4) of Article 16 is exhaustive of the special provisions that can be made in favour of "the backward class of citizens". Backward Classes having been classified by the Constitution itself as a class deserving special treatment and the Constitution having itself specified the nature of special treatment, it should be presumed that no further classification or special treatment is permissible in their favour apart from or outside of clause (4) of Article
16.
744. The aspect next to be considered is whether clause (4) is exhaustive of the very concept of reservations? In other words, the question is whether any reservations can be provided outside clause (4) i.e., under clause (1) of Article 16. There are two views on this aspect. On a fuller consideration of the matter, we are of the opinion that clause (4) is not, and cannot be held to be, exhaustive of the concept of reservations; it is exhaustive of reservations in favour of backward classes alone. Merely because, one form of classification is stated as a specific clause, it does not follow that the very concept and power of classification implicit in clause (1) is exhausted thereby. To say so would not be correct in principle. But, at the same time, one thing is clear. It is in very exceptional situations, -- and not for all and sundry reasons -- that any further reservations, of whatever kind, should be provided under clause (1). In such cases, the State has to satisfy, if called upon, that making such a provision was necessary (in public interest) to redress a specific situation. The very presence of clause (4) should act as a damper upon the propensity to create further classes deserving special treatment. The reason for saying so is very simple. If reservations are made both under clause (4) as well as under clause (1), the vacancies available for free competition as well as reserved categories would be a correspondingly whittled down and that is not a reasonable thing to do.
746. What does the expression "backward class of citizens" in Article 16 (4) signify and how should they be identified? This has been the single CWP No.11071 of 2011 -47- most difficult question tormenting this nation. The expression is not defined in the Constitution. What does it mean then? The arguments before us mainly revolved round this question. Several shades of opinion have been presented to us ranging from one extreme to the other. Indeed, it may be difficult to set out in full the reasoning presented before us orally and in several written propositions submitted by various counsel. We can mention only the substance of and the broad features emerging from those submissions. At one end of the spectrum stands Shri N.A. Palkhivala (supported by several other counsel) whose submissions may briefly be summarised in the following words: a secular, unified and casteless society is a basic feature of the Constitution. Caste is a prohibited ground of distinction under the Constitution. It ought be erased altogether from the Indian society. It can never be the basis for determining backward classes referred to in Article 16(4). The Report of the Mandal Commission, which is the basis of the impugned Memorandums, has treated the expression "backward classes" as synonymous with backward castes and has proceeded to identify backward classes solely and exclusively on the basis of caste, ignoring all other considerations including poverty. It has indeed invented castes for non-Hindus where none exist. The Report has divided the nation into two sections, backward and forward, placing 52% of the population in the former section. Acceptance of the Report would spell disaster to the unity and integrity of the nation. If half of the posts are reserved for backward classes, it would seriously jeopardise the efficiency of the administration, educational system, and all other services resulting in backwardness of the entire nation. Merit will disappear by deifying backwardness. Article 16(4) is broader than Article 15(4). The expression "backward class of citizens" in Article 16(4) is not limited to "socially and educationally backward classes" in Article 15(4). The impugned Memorandum, based on the said report must necessarily fall to the ground along with the Report. In fact the main thrust of Shri Palkhivala's argument has been against the Mandal Commission Report.
786. The other aspect to be considered is whether the backwardness contemplated in Article 16(4) is social backwardness or educational backwardness or whether it is both social and educational backwardness. Since the decision in Balaji it has been assumed that the backward class of citizens contemplated by Article 16(4) is the same as the socially and educationally backward classes, Scheduled Castes and Scheduled Tribes mentioned in Article 15(4). Though Article 15(4) came into existence later in 1951 and Article 16(4) does not contain the qualifying words "socially and educationally" preceding the words "backward class of citizens" the same meaning came to be attached to them. Indeed, it was stated in Janki Prasad Parimoo v. State of J & K, (1973) 1 SCC 420 (Palekar, J speaking for the Constitution Bench) that:
"Article 15(4) speaks about 'socially and educationally backward classes of citizens' while Article 16(4) speaks only of 'any backward class citizens'. However, it is now settled that the expression 'backward class of citizens' in Article 16(4) means the same thing as the expression 'any socially and educationally backward class of citizens' in Article 15(4). In order to qualify for being called a 'backward class citizen' he must be a member of a socially and educationally backward class. It is social and educational backwardness of a class which is material for the purposes of both Articles 15(4) and 16(4)."
787. It is true that no decision earlier to it specifically said so, yet such an impression gained currency and it is that impression which finds expression in the above observation. In our respectful opinion, however, the said assumption has no basis. Clause (4) of Article 16 does not contain the qualifying words "socially and educationally" as does clause (4) of Article 15. It may be remembered that Article 340 (which has remained unamended) does employ the expression 'socially and CWP No.11071 of 2011 -48- educationally backward classes' and yet that expression does not find place in Article 16(4). The reason is obvious: "backward class of citizens" in Article 16(4) takes in Scheduled Tribes, Scheduled Castes and all other backward classes of citizens including the socially and educationally backward classes. Thus, certain classes which may not qualify for Article 15(4) may qualify for Article 16(4). They may not qualify for Article 15(4) but they may qualify as backward class of citizens for the purposes of Article 16(4). It is equally relevant to notice that Article 340 does not expressly refer to services or to reservations in services under the State, though it may be that the Commission appointed thereunder may recommend reservation in appointments/posts in the services of the State as one of the steps for removing the difficulties under which SEBCs are labouring and for improving their conditions. Thus, SEBCs referred to in Article 340 is only of the categories for whom Article 16(4) was enacted: Article 16(4) applies to a much larger class than the one contemplated by Article 340. It would, thus, be not correct to say that 'backward class of citizens' in Article 16(4) are the same as the socially and educationally backward classes in Article 15(4). Saying so would mean and imply reading a limitation into a beneficial provision like Article 16(4). Moreover, when speaking of reservation in appointments/posts in the State services -- which may mean, at any level whatsoever -- insisting upon educational backwardness may not be quite appropriate.
796.-797. We may now summarise our discussion under Question No. 3.
(a) A caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons are socially backward. They too represent backward social collectivities for the purposes of Article 16(4). (b) Neither the constitution nor the law prescribe the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify. It can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the backward classes can certainly be done with reference to castes among, and along with, other groups, classes and sections of people. One can start the process with the castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out whether it satisfies the criteria. If it does -- what emerges is a "backward class of citizens" within the meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire populace. The central idea and overall objective should be to consider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group/class encompassing an overwhelming majority of the country's population, one can well begin with it and then go to other groups, sections and classes. (c) It is not necessary for a class to be designated as a backward class that it is situated similarly to the Scheduled Castes/Scheduled Tribes. (d) 'Creamy layer' can be, and must be, excluded. (e) It is not correct to say that the backward class contemplated by Article 16(4) is limited to the socially and educationally backward classes referred to in Article 15(4) and Article 340. It is much wider. The test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes, who indubitably fall within the expression "backward class of citizens". The accent in Article 16(4) appears to be on social backwardness. Of course, social, educational and economic backwardness are closely intertwined in the Indian context. The classes contemplated by Article 16(4) may be wider than those contemplated by CWP No.11071 of 2011 -49- Article 15(4)."
The vexed questions of domicile, place of residence and place of birth with reference to Articles 5, 15 and 16 of the Constitution in the context of employment/appointment to public posts under the State or in connection with the affairs of the State.
63. The examination of questions 2 & 3 thus far would remain incomplete without further trying to understand the implications of the words domicile, place of residence and place of birth. To a layman the three may appear synonymous. However, the makers of the Constitution have used them differently in different contexts in different provisions with different results. The word 'domicile' is not used in either Article 15 or 16. In Article 15 the expression 'place of birth' is used but 'residence' is not. In Article 16 (2) both the expressions 'place of birth' and 'residence' are employed. The word 'domicile' is found in Article 5 of the Constitution where citizenship at the commencement of the Constitution is dealt with. In the midst of this complexity we would need to go to case law to find answers.
64. In Saurabh Chaudri and others vs. Union of India and others, (2003) 11 SCC 146, the Constitution Bench of the Supreme Court was dealing with medical admissions in which the challenge was to the constitutional validity of reservation and whether it could be based on domicile or institution in the matter of admission to Post Graduate courses in government run medical colleges in terms of Article 15(1) of the Constitution. In paragraph 29 of the report, the Supreme Court observed:-
"29. The first question that arises for consideration is, whether the reservation on the basis of domicile is impermissible in terms of Clause (1) of Article 15 of the Constitution of India? The term 'place of birth' occurs in Clause (1) of Article 15 but not 'domicile'. If a comparison is made between Article 15(1) and Article 16(2) of the Constitution of India, it would appear that whereas the former refers to 'place of birth' alone, the latter refers to both 'domicile' and 'residence' apart from place of birth. A distinction, therefore, has been made by the makers of the Constitution themselves to the effect that the expression 'place of birth' is not synonymous to the expression "domicile" and they reflect two different concepts. It may be true, as has been pointed out by Shri Salve CWP No.11071 of 2011 -50- and pursued by Mr. Nariman, that both the expressions appeared to be synonymous to some of the members of the Constituent Assembly but the same, in our opinion, cannot be a guiding factor. In D.P. Joshi's case (supra), a Constitution Bench held so in no uncertain terms."
The Court went on to observe as follows:-
"39. The Ideal situation, although it might have been to see that only meritorious students irrespective of caste, creed, sex, place of birth, domicile/residence are treated equally but historyis replete with situations to show that India is not ready therefore. Sociological condition prevailing in India compelled the makers of the Constitution to bring in Articles 15 and 16 in the Constitution. The said Articles for all intent and purport are species of Article 14 which is the genies in a sense that they provide for exception to the equality clause also. Preference to a class of persons whether based on caste, creed, religion, place of birth, domicile or residence is embedded in- cur constitutional scheme. Whereas larger interest of the country must be perceived, the law makers cannot shut their eyes to the local needs also. Such local needs must receive due consideration keeping in view the duties of the State contained in Articles 41 and 47 of the Constitution of India.
41.Constitutional interpretation is a difficult task. Its concept varies from statute to statute, fact to fact, situation to situation and subject matter to subject matter. Perceptions are yet to be perceived by the court which would moot all situations while laying down emphasis for achieving excellence in all spheres of life keeping in view Chapter IV-A of the Constitution of India which provide for fundamental duties, circumstances and compulsions faced by the State in this behalf led the courts to uphold a statute providing for reservation for a special class of people. Mostly they suffer from disability either being belonging to an op pressed community or by way of economical, cultural or social imbalances. The courts shall all along strive hard for maintaining a balance. While interpreting the Constitution, we must notice the following view of Justice Holmes expressed in Missouri v. Holland [252 US 416 (433)] :"
"When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realise or to hope that they had created an organism, it has taken a century and has cost their successors must sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago." [Emphasis supplied].
65. In the main, the Court held that institutional reservation or preference is not destructive of the equality clause of Articles 14 and 15 and is not unconstitutional provided it is within reasonable limits and extent.
66. In Kuldip Nayar vs. Union of India, (2006) 7 SCC 1, the Supreme Court observed while dealing with the issue of disqualification from the member of Rajya Sabha and the removal of requirement of residence or domicile in the CWP No.11071 of 2011 -51- electing State as a qualification for election to Rajya Sabha in the background of federalism and bicameralism observed that the matter of residence or domicile in the matter of qualifications becomes a constitutional requirement only if it is stated so expressly in the Constitution and not otherwise.
67. In D.P.Joshi (Dr) vs. State of Madhya Bharat, AIR 1955 (SC) 334, the Constitution Bench of the Supreme Court dealt with the provisions of an executive order passed by the Government of Madhya Bharat which charged in addition to tuition fees for admission to a medical college run by the State, a capitation fee of Rs.1500/- per annum from students who were not bona fide residents of Madhya Bharat. Capitation fee is abjured today and had not then earned notoriety as a lucrative parallel industry, and it was thus held relevant consideration of insulation and State protection on the interpretation and construction of Clauses (a) and (b) of the impugned Government order which required a candidate to be a citizen of India whose original domicile is in Madhya Bharat provided he has not acquired domicile elsewhere, or if he is an Indian citizen whose original domicile is not Madhya Bharat but has acquired a domicile in Madhya Bharat and has resided there for not less than five years as on the date on which he applied for admission, held that the rule is clearly not open to attack as infringing Article 15(1). The Court found that residence and place of birth are two distinct constructions with different connotation both in law and fact and when Article 15(1) prohibits discrimination based on place of birth, it cannot be read as prohibiting discrimination based on residence. But what is of importance is that the Supreme Court found merit and force in the contention that when the rule making authorities referred to exemption based on 'domicile' in Clauses (a) and
(b), "they were thinking really of residence". The capitation fee was upheld under Article 15(1) since the "word" residence was not used demanding the charge. In this manner, classification based on residence within the State was found having sufficient object of the classification to help to some extent the students who were CWP No.11071 of 2011 -52- resident of Madhya Bharat in the prosecution of their studies. If the State had to spend money on its medical college, then to some extent protection was found to be justified.
68. The issue of residence qualification for admission to Medical Colleges again engaged the attention of the Supreme Court in Yogesh Bhardwaj vs. State of UP and others, (1990) 3 SCC 355. The Court dealt with the concept of domicile. In paragraphs 14, 17 and 21, their Lordships held:-
"14.This is, however, not the position in India. Though a Union of States, and a federation in that sense, the whole country is governed by a single unified system of law, with a unified system of judicial administration, notwithstanding the constitutional distribution of legislative powers between the Centre and the States. There is no State- wise domicile within the territory of India. A man who is domiciled in India is domiciled in every State in India and is identified with a territorial system of legal rules pervading throughout the country. He is 'domiciled' in the whole of this country, even though his permanent home may be located in a particular spot within it. Udny v. Udny, [1869] LR 1 Sc & Div 441, H.L.; Bell v. Kennedy, i18681 LR 1 Sc & Div 307, H.L. The expression, as understood in private international law, makes no sense in the context of Clause 4, for Indian domicile cannot be limited to any particular State within India. The full import of 'domicile' is, therefore, inapplicable to the construction of clause 4. We would in this connection recall the words of this Court in Dr. Pradeep Jain & Ors. v. Union of India & Ors., [1984] 3 SCC 654 at 668, See also D.P. Joshi v. The State of Madhya Bharat and Another, [1955] 1 SCR 1215:
"It would be absurd to suggest that the legal system varies from State to State or that the legal system of a State is different from the legal system of the Union of India, merely because with respect to the subjects within their legislative competence, the States have power to make laws. The concept of 'domicile' has no relevance to the applicability of municipal laws, whether made by the Union of India or by the States. It would not, therefore, in our opinion be right to say that a citizen of India is domiciled in one State or another forming part of the Union of India. The domicile which he has is only one domicile, namely, domicile in the territory of India."
17.Residence is a physical fact. No volition is needed to establish it. Unlike in the case of a domicile of choice, animus manendi is not an essential requirement of residence. Any period of physical presence, however short, may constitute residence provided it is not transitory, fleeting or casual. Intention is not relevant to prove the physical fact of residence except to the extent of showing that it is not a mere fleeting or transitory existence To insist on an element of volition is to confuse the features of 'residence' with those of 'domicile'.
21.While residence and intention are the two essential elements constituting the 'domicile of choice' residence in its own right is a connecting factor in a national legal system for purposes of taxation, jurisdiction, service of summons, voting etc. To read into residence volition as a necessary element is, as stated above, to mistake CWP No.11071 of 2011 -53- residence for domicile of choice, and that is the error which the High Court appears to have committed. Where residence is prescribed within a unified legal system as a qualifying condition, it is essential that the expression is so understood as to have the widest room for the full enjoyment of the right of equality before the law. Any construction which works to the disadvantage of the citizen lawfully seeking legitimate avenues of progress within the country will be out of harmony with the guaranteed rights under the Constitution, and such a construction must necessarily be avoided."
69. In Dr. Parag Gupta vs. University of Delhi and others, (2000) 5 SCC 684, the Court held that preference on the basis of domicile and requirement of residence in the matter of admissions to medical colleges is not bad provided it is within reasonable limits. The Court held that though University-wise preference is permissible, college-wise preference is not. The Court, however, sounded a note of caution in paragraph 15 which reads:-
"15.Before parting with this case, we make it clear that we are not deciding that vexed question of attaining uniformity in all P.G.courses all over the country except to the extent indicated earlier nor we are in a position to say whether institutional preference based on any study in an institution or requirement of residence or both fully complies with the various directions issued by this Court from time to time. We, therefore, think that it would be appropriate for the concerned States or other authorities to achieve uniformity by adopting institutional and/or residential preference in terms of the decisions referred to by us as otherwise, if challenged, may not stand scrutiny of the Court."
70. In Louis De Raedt vs. Union of India, (1971) 3 SCC 554, the Court explained that domicile of choice requires animus manendi as an essential ingredient. There is a domicile of origin and domicile of choice. Every person must have a personal law and accordingly every one must have a domicile. He receives at birth a domicile of origin which remains a domicile, wherever he goes, unless and until he acquires a new domicile. The new domicile acquired subsequently is generally called a domicile of choice, residence alone, unaccompanied by a state of mind is insufficient.
71. In Abdus Samad vs. State of West Bengal, (1973) 1 SCC 451, the Court explained that the domicile of choice is that every person of full age is free to acquire in substitution for that which he possesses at the time of choice, but by domicile is meant a permanent home. Domicile means the place which a person has fixed as habitation to himself and his family, not for a mere special and CWP No.11071 of 2011 -54- temporary purpose, but with present intention of making it his permanent home. Domicile of choice is thus a result of voluntary choice. Every person must have a domicile. A person cannot have two simultaneous domiciles. Domicile denotes connection with the territorial system of law.
72. None of the above matters deal with employment or appointment to public service. They are, however, instructive in understanding of the concept of domicile and residence. What is true for Article 15 (1) while dealing with horizontal reservations is not true for Article 16. When the rule making authority in the present case speaks of domicile, then the above judgments are of help. We believe that when rule 10 (1) (d) talks of domicile, it actually uses that word simultaneously and synonymously with residence and therefore to our mind runs foul of the constitutional scheme of Article 16 thereby inviting the prohibition of Article 16 (3) as beyond the State's legislative or subordinate rule making authority.
Question No.4: Whether the condition of granting one additional mark for each year of unemployment subject to maximum of 10 marks, is legal and justified?
73. The criteria adopted to make selection to the posts in question do not demand either written examination or interview. A straight jacket formula has been adopted based on award of marks, therefore, award of marks under different heads assumes greater significance. Mr. G.P. Singh, would submit that the State is aware of and is the best judge of the needs of its people and merit is a relative concept depending on the type of service to which the selection pertains. We have no doubt that the State is the best judge of the needs of its people but its actions touching upon rights and disabilities of citizens arising therefrom are amenable to judicial scrutiny and the testing of those on grounds of reasonableness and non- arbitrariness and on the broader principles of justice, equity and good conscience on the anvil of the provisions of the supreme document, the Constitution is the business of Courts exercising constitutional jurisdiction. The action of the State CWP No.11071 of 2011 -55- Government in award of one additional mark for every year of unemployment to a maximum of 10 marks would appear to us rather difficult to swallow. The State is after all selecting teachers under the impugned advertisement to impart education in rural areas to give meaningful effect to its duties towards promotion of education, a statutory duty found in Section 180 (17) and Section 181 of the 2006 Act, besides an over-arching constitutional duty and responsibility under Entry 17 of the Eleventh Schedule to the Constitution introduced by the 73rd Amendment for Panchayati Raj schools at the primary and secondary levels run in rural settings. If recruitment was not made for whatever reason in the past or at short intervals to fill up vacancies that may not truly justify the cap of premium put on unemployment or incompetence or inexperience by giving one mark for sitting idle for one to ten years after passing the qualifying examination. Ten years of inactivity when new systems of modern methods of teaching and education are continuously evolving would not justify the concession in the face of emerging talent everyday becoming eligible for appointment. Let us assume that a candidate is given 10 marks for ten years of sitting and doing nothing from the date of passing the qualifying test, he may have forgotten much of what he learnt 10 years ago. This may be counter productive to education itself and other services and ultimately in the quality of public appointments that may be made in rural panchayati raj run schools and the terrible impact it may have on the next generation of school-children who would form the nursery of future school teachers. This might create a vicious circle difficult to get out of. The remedy, if any, lies today for the Government of Punjab to think of and not be carried by misdirected compulsion merely to fill vacancies because they exist. Brother K.S.Ahluwalia, J. in Division Bench, had in the order dated 13.7.2012, which led to this reference, spoke his anguish against the impugned rules when he said that when the disease is dangerous, the remedy has to be drastic.
74. The State albeit is not under an imperative constitutional duty to give CWP No.11071 of 2011 -56- public employment though it remains under both a Constitutional and statutory duty to impart education under the 73rd amendment and Entry 17 of the Eleventh Schedule added by it and under Section 181 (6) (b) of the Punjab Panchayati Raj Act, 1994.
75. Article 16 is an enabling provision which lays down the basic rules of the game of public employment. It means that when State offers appointment then its actions must be consistent with Article 14 and 16 of the Constitution and the reasonable departures of classification contained therein otherwise power remains inactivated. We cannot support grant of such marks which would tend to warp merit and create heart-burn as well for new aspirants waiting with bated breath in search of an opening, a vocation and a livelihood. Fresh graduates may be available in the job market who may be more brilliant but may be left out in the calculation of marks over which they can have no control in the grim scenario of merit being determined under the impugned rules without written test or interview with no opportunity to display their real edge over others by show of skill before experts to which the logic of cold lifeless marks would not penetrate. Teachers have to manage classroom work for which they need special abilities, speaking skills, temperament, suitability, psychological testing etc. which cannot by the very nature of things be fathomed or evaluated without an interview, personal interaction or the like without experts in the field. The criteria lacks probity and leaves much to be desired. The interest of those teachers who have been unable to secure government jobs due to delays in filling up posts could have been balanced out in favour of such persons who took up and pursued teaching as a vocation in right earnest in private institutions or in Government schools run within or outside the State of Punjab and continued to do so till the date of the advertisement. They could well have been granted additional marks for experience but not for those sitting idle and wasting themselves, lessons long forgotten. This is of course a matter for the State Government to ponder over and is not within the domain of CWP No.11071 of 2011 -57- this Court. We have, however, not been able to discern the raison d'être behind this provision in the amended rules and consequently in the advertisement despite our best effort. We are, therefore, unable to uphold its constitutional validity, consequently, the grant of ten marks is set-aside being irrational and arbitrary. Question No.5: Whether the District-wise recruitment is legal and justified?
76. The impugned clause 7 in the advertisement dated 26.4.2011 (P-7) reads as follows:
"'The recruitment of the candidates will be made district wise. The candidates can submit application for recruitment in any one district of Punjab."
77. The break up of vacant posts in each district has been tabulated for the 20 districts separately totalling 7041 posts. According to clause 7, a candidate can apply in any one district of Punjab and the recruitment would be offered within the district of choice. The question is whether the rules support a district-cadre or a state-cadre. Appendix-A to the 2006 rules indicates that there is a unified cadre of E.T.T teachers with 9384 permanent posts carrying a scale of pay of Rs 4550- 150-5000-160-5800-2000-7000-220-7220/-. Rule 3 of the Rules deals with constitution of service and lays down that the State Government constitutes the service comprising of posts as specified in Appendix-A. The original Rule 11 dealt with criteria for appointment and laid down that appointment to service shall be made school-wise from amongst the eligible candidates from the areas in the manner provided which indicated district-cadre. The substituted Rule 11 in the 2011 amendment does away with the prohibition of appointments outside the district applied for school-wise and tunes it with the original Appendix-A. The seniority rule 14 is based on length of continuous service on such posts in that cadre of the service. The seniority rule is neither designed school-wise nor district-wise. However, the offending clause 7 of the advertisement goes beyond rule and calls for recruitment of candidates district-wise. We find that this is not permissible being contrary to rule. Therefore, clause 7 of the impugned CWP No.11071 of 2011 -58- advertisement is unsustainable. Besides, clause 7 would result in discrimination and arbitrariness in terms of merit. If district-wise recruitment is permitted, a situation may arise that a person lower in merit in one district may secure appointment in another district on comparative basis. Nothing would harm education greater to our mind than this provision in the advertisement. The competition in each district would vary depending on the number of applicants which would be a fortuitous circumstance and therefore, arbitrary and the recruitment process capable of being manipulated and result in incalculable harm to the system and the institution of learning and of imparting education in rural schools of what this case is all about. We are conscious that merely because a provision is capable of manipulation or open to mischief would itself not be ground to strike it down if it satisfies the tests of reasonableness.
78. The issue of district-wise distribution of seats for admission to medical colleges was first considered by the Supreme Court in the context of Article 14 in Minor P. Rajendran v. State of Madras and others; AIR 1968 SC 1012. The Court held that such distribution would be destructive of merit and discriminatory in the following words:
"11.The question whether district-wise allocation is violative of Art. 14 will depend on what is the object to be achieved in the matter of admission to medical colleges. Considering the fact that there is a larger number of candidates than seats available, selection has got to be made. The object of selection can only be to secure the best possible material for admission to colleges subject to the provision for socially and educationally backward classes. Further whether selection is from the socially and educationally backward classes or from the general pool, the object of selection must be to secure the best possible talent from the two sources. If that is the object, it must necessarily follow that that object would be defeated if seats are allocated district by district. It cannot be and has not been denied that the object of Selection is to secure the best possible talent from the two sources so that the country may have the best-possible doctors. If that is the object, the argument on behalf of the petitioners/appellant is that that object cannot possibly be served by allocating seats district-wise. It is true that Art. 14 does not forbid classification, but the classification has to be justified on the basis of the nexus between the classification and the object to be achieved, even assuming that territorial classification may be a reasonable classification. The fact however that the classification by itself is reasonable is not enough to support it unless there is nexus between the classification and the object to be achieved. Therefore, as the object to be achieved in a case of the kind with which we are concerned is to get the best talent for admission to professional colleges, the allocation of CWP No.11071 of 2011 -59- seats district-wise has no reasonable relation with the object to be achieved. If anything, such allocation will result in many cases in the object being destroyed, and if that is so, the classification, even if reasonable, would result in discrimination, inasmuch as better qualified candidates from one district may be rejected while less qualified candidates from other districts may be admitted from either of the two Sources."
79. In (Minor) A. Periakaruppan v. State of Tamil Nadu and others; (1971) 1 SCC 38 the method adopted of unit wise distribution of seats for admission to medical colleges was held violative of Articles 14 and 15, the Court observed:
"Before a classification can be justified, it must be based on an objective criteria and further it must have reasonable nexus with the object intended to be achieved. The object intended to be achieved in the present case is to select the best candidates for being admitted to Medical Colleges. That object cannot be satisfactorily achieved by the method adopted. The complaint of the petitioners is that unit-wise distribution of seats is but a different manifestation of the district-wise distribution sought in 1967-68 has some force though on the material on record we will not be justified in saying that the unit-wise distribution was done for collateral purposes. Suffice it to say that the unit-wise distribution of seats is violative of Articles 14 and 15 of the Constitution. The fact that an applicant in free to apply to any one unit does not take the scheme outside the mischief of Articles 14 and 15. It may be remembered that the students were advised as far as possible to apply to the unit nearest to their place of residence."
80. In the same theme territorial reservation based district-wise without indicating any connection between such reservation with the object sought to be achieved was held constitutionally bad and violative of Article 14 of the Constitution in Govind A Mane and others v. State of Maharashtra and others; (2000) 4 SCC 200. The Supreme Court applied its earlier dicta in Minor P. Rajendran and (Minor) A. Periakaruppan cases.
81. For the reasons recorded above and to summarize what we have said, we hold:
(1) The Division Bench decision of this Court in Sudesh Rani v.
State of Punjab and connected cases reported in 2010 (5) SLR 768:
2010 (3) SCT 1 decided on 20.4.2010 (CWP No.6801 of 2008 etc.) sustaining grant of five additional marks to the candidates who have passed middle and matriculation examinations from schools situated in rural areas of Punjab does not lay down the correct law. (2) As a consequence of (1) above and in absence of any CWP No.11071 of 2011 -60- quantifiable data available with the State Government as explained in Kailash Chand Sharma v. State of Rajasthan and others AIR 2002 SC 2877:(2002) 6 SCC 562 and in M. Nagaraj and others v.
Union of India and others; (2006) 8 SCC 212, the grant of five additional marks to candidates who have passed the 10th and 12th standard examinations from schools situated in rural areas of Punjab is ultra vires the constitution. Resultantly, Rule 11 (3) of the impugned rules is struck down.
(3) The qualifications laid down in the impugned amendment vide notification dated 18.4.2011 carried out in Rule 10 to the extent it restricts eligibility on the basis of domicile and residence within the State of Punjab and Union Territory, Chandigarh, that is, Rule 10 (1) (a) & (d) are declared unconstitutional and beyond the legislative competence of the State as only Parliament under Article 16 (3) can make law prescribing with regard to a class or classes of employment or appointment to an office under the Government of a State or any local or other authority within the State to provide any requirement as to residence within that State prior to such employment or appointment. Article 35 (i) (a) of the Constitution provides that Parliament shall have, and the legislature of a State shall not have, power to make laws with respect to any matter provided in Article 16 (3).
(4) Rules 11(1) (a) and (b) based on offending qualifications laid down in Rule 10 (a) and (d) providing 70% of the posts of E.T.T teachers to be filled from amongst persons who have obtained the educational qualifications prescribed in Rule 10 from institutions situated within the State of Punjab is declared ultra vires Articles 14, 16 and 35 (i) (a) of the Constitution of India as they are founded on domicile and residence and the contest limited to basic qualifications earned from within the State of Punjab subject to the same qualifications earned from other States which have been declared equivalent and duly recognized by the Punjab Government. State sponsored xenophobia is constitutional anathema and the principle of one India; subject to Parliamentary legislative intervention under Article 16 (3) with respect to "any requirement as to residence within that State or Union territory prior to such employment or appointment.", is the governing principle of public employment throughout the land. Therefore, such reservation is declared illegal. CWP No.11071 of 2011 -61- (5) The principle of determining merit laid down in Rule 11(2) amongst such persons as have passed the E.T.T and J.B.T course examinations in the yesteryears but were unable to secure employment in Government service for lack of recruitment, will be given weightage of one mark for each completed year of idleness subject to maximum of 10 marks is declared anti-meritarian, arbitrary and ultra vires Articles 14 and 16 the Constitution of India. The State is Constitutionally and statutorily bound to provide education but it is not constitutionally bound to make public appointments de hors constitutional mandates of Part III of the Constitution. It is only enabled to do so provided it acts within the dictates of Articles 14, 16 and other regulatory laws.
(6) The District-wise recruitment of E.T.T teachers is declared legally bad and not supported by the provisions of the Punjab Panchayati Raj Primary Teachers (Recruitment & Conditions of Service) Rules, 2006 and Appendix-A thereto which indicates existence of a State-cadre. Consequently, clause-7 of the impugned advertisement dated 26.4.2011 (P-7) calling applications district- wise is foul and is quashed. There is no place for inter district discrimination. Punjab is one under the impugned rules of service.
82. The reference is answered accordingly and the present and the connected cases would now go before the learned Single Judge for decision on merits.
(HEMANT GUPTA) (AJAY TEWARI) (RAJIV NARAIN RAINA)
JUDGE JUDGE JUDGE
April 3, 2013
rajeev