Allahabad High Court
Ambrish Kumar & 20 Ors. vs State Of U.P. Thru. Prin. Secy. Basic ... on 13 January, 2020
Bench: Govind Mathur, Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Judgment Reserved on 26.07.2019 Judgment Delivered on 13.01.2020 Case :- MISC. BENCH No. - 5320 of 2017 Petitioner :- Ambrish Kumar & 20 Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education & Ors. Counsel for Petitioner :- Himanshu Raghave,Apoorva Tewari,Durga Prasad Shukla Counsel for Respondent :- C.S.C.,Amrendra Nath Tripathi,Neeraj Chaurasiya,Pt. S. Chandra,Shashi Bajpai ALONG WITH Case :- MISC. BENCH No. - 11652 of 2018 Petitioner :- Sachin Kumar And Others Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education And Others Counsel for Petitioner :- Durga Prasad Shukla,Apoorva Tiwari Counsel for Respondent :- C.S.C.,Ajay Kumar,Amrendra Nath Tripathi,M.M.Asthana,Mukund Madhava Asthana,Shashi Bajpai AND Case :- MISC. BENCH No. - 18653 of 2016 Petitioner :- Udit Narayan Verma & Ors Respondent :- State Of U.P Thru Prin Secy Basic Edu Lko & Ors Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C,Ajai Kumar,Sharad Pathak,Shashi Bajpai,Shobhit Mohan Shukla AND Case :- MISC. BENCH No. - 19580 of 2016 Petitioner :- Ambrish Kumar & Ors Respondent :- State Of U.P Thru Prin Secy Basic Edu Lko & Ors Counsel for Petitioner :- Himanshu Raghave Counsel for Respondent :- C.S.C,Ajay Kumar,Sharad Pathak,Shashi Bajpai AND Case :- MISC. BENCH No. - 18624 of 2016 Petitioner :- Smt. Mamta Chaudhary And 3 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Of Basic Edu. Lucknow & Ors. Counsel for Petitioner :- Girish Chandra Verma Counsel for Respondent :- C.S.C.,Ghaus Beg,Jaibind Singh Rathour,Navendu Srivastava,Sharad Pathak AND Case :- MISC. BENCH No. - 30621 of 2016 Petitioner :- Preeti Mishra And Another Respondent :- State Of U.P.Thru Prin.Secy.Deptt.Of Basic Edu. Lko. & Ors. Counsel for Petitioner :- Kshemendra Shukla Counsel for Respondent :- C.S.C.,Ajay Kumar,Shobhit Mohan Shukla AND Case :- MISC. BENCH No. - 6143 of 2018 Petitioner :- Piyush Pandey & Others Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education & Others Counsel for Petitioner :- Ramesh Kumar Dwivedi Counsel for Respondent :- C.S.C.,Neeraj Chaurasiya AND Case :- MISC. BENCH No. - 4349 of 2016 Petitioner :- Tilak Pal Singh & 48 Others Respondent :- State Of U.P. Thru. Prin.Secy., Basic Education & 2 Others Counsel for Petitioner :- Himanshu Raghave,Ajay Kumar Counsel for Respondent :- C.S.C. AND Case :- SERVICE SINGLE No. - 19196 of 2016 Petitioner :- Shailendra Pandey & 12 Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Basic Edu. U.P. & 2 Ors. Counsel for Petitioner :- Himanshu Raghave,Ramesh Kumar Dwivedi,Upendra Nath Misra Counsel for Respondent :- C.S.C,Ajay Kumar,Sharad Pathak,Shashi Bajpai AND Case :- SERVICE SINGLE No. - 20082 of 2016 Petitioner :- Ashutosh Kumar Mishra And 8 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Basic Edu.Civil Sectt.Lko.& Ors Counsel for Petitioner :- Kushendra Kumar Singh Rat,Sameer Kalia,Srideep Chatterjee Counsel for Respondent :- C.S.C.,Ajay Kumar,Sharad Pathak,Shashi Bajpai,Shobhit Mohan Shukla AND Case :- SERVICE SINGLE No. - 18406 of 2016 Petitioner :- Gyanesh Giri & Ors. Respondent :- State Of U.P. Thru. Secy. Basic Edu. Civil Sectt. & Ors. Counsel for Petitioner :- Dr. V.K. Singh,Smt. Manisha Singh Counsel for Respondent :- C.S.C,Ajay Kumar,Sharad Pathak,Shashi Bajpai AND Case :- SERVICE SINGLE No. - 17366 of 2016 Petitioner :- Saurabh Patel & Another [Vires] Respondent :- State Of U.P. Thru. Prn. Secy. Basic Edu. U.P. & Ors. Counsel for Petitioner :- Himanshu Raghave Counsel for Respondent :- C.S.C,Ajay Kumar,Sameer Kalia,Sashi Bajpai,Sharad Pathak,Srideep Chatterjee AND Case :- SERVICE SINGLE No. - 11220 of 2016 Petitioner :- Om Prakash Singh And Ors. Respondent :- State Of U.P.Thru Prin.Secy.Basic Edu.Lko.And Ors. Counsel for Petitioner :- Himanshu Raghave,B.R. Singh,Himanshu Raghave,Sameer Kalia,Srideep Chatterjee,Upendra Nath Misra Counsel for Respondent :- C.S.C.,Ajay Kumar,B.R.Singh,Durga Prasad Shukla AND Case :- SERVICE BENCH No. - 36698 of 2018 Petitioner :- Rishi Katiyar And Ors. Respondent :- State Of U.P.Throu.Prin.Secy.Basic Education Lucknow And Ors Counsel for Petitioner :- Durga Prasad Shukla,Himanshu Raghave Counsel for Respondent :- C.S.C,,Ajay Kumar AND Case :- SERVICE BENCH No. - 36694 of 2018 Petitioner :- Saurabh Kumar Verma And Ors. Respondent :- State Of U.P.Throu.Prin.Secy.Basic Education Lucknow And Ors Counsel for Petitioner :- Durga Prasad Shukla,Himanshu Raghave Counsel for Respondent :- C.S.C,,Ajay Kumar AND Case :- SERVICE BENCH No. - 4234 of 2019 Petitioner :- Surbhi Omar And Ors. Respondent :- State Of U.P.Throu.Prin.Secy.Basic Education Lko.And Ors. Counsel for Petitioner :- Himanshu Raghave,Durga Prasad Shukla Counsel for Respondent :- C.S.C.,Ajay Kumar AND Case :- SERVICE BENCH No. - 18370 of 2019 Petitioner :- Mohan Lal Yaduwanshi And 5 Ors. Respondent :- State Of U.P. Thru Prin. Secy. Basic Edu. Lucknow & Ors. Counsel for Petitioner :- Onkar Singh Kushwaha Counsel for Respondent :- C.S.C.,Ajay Kumar Hon'ble Govind Mathur,Chief Justice Hon'ble Chandra Dhari Singh,J.
(Per: Chandra Dhari Singh, J)
1. As common questions of law and facts arise in all writ petitions and as such all these writ petitions are being decided together by this common judgment and order.
2. In the instant bunch of writ petitions, all petitioners have assailed the validity of the Rule (14(1)(a) of the U.P. Basic Education (Teachers) Service Rules, 1981, (in short '1981 Rules') which provides the appointing authority to invite applications from candidates possessing prescribed training qualification from the district concerned.
3. Petitioners, inter alia, have also challenged the condition 6 (Kha) as contained in the guideline dated 26.12.2016 issued by the Secretary, U.P. Basic Shiksha Parishad, Allahabad to the extent that the candidates doing B.T.C. Training shall be allowed to apply in the district of their training alone in the first instance. They have also prayed that they may be permitted to appear in the counselling of the other district of their choice removing "District Preference".
4. Brief facts of the case are that vide Government Order No.3300/ 79-5-201604127/ 2013 dated 15.12.2016, a selection process for appointing 12,460 Assistant Teachers in the Primary Schools run under U.P. Basic Shiksha Parishad, Allahabad was initiated. In pursuance of the aforesaid Government Order dated 15.12.2016, the Secretary, U.P. Basic Shiksha Parishad, Allahabad issued a Letter No.Ba.Sh.Pa./ 12836 - 12932/ 2016-17 dated 20.12.2016 declaring the schedule as also the vacancies in the districts across the State of U.P. A guideline was also issued by the Secretary, U.P. Basic Shiksha Parishad, Allahabad in pursuance to the Government Order dated 15.12.2016. Thereafter, in compliance of the letter dated 20.12.2016, online applications were invited from the eligible candidates for the post of Assistant Teachers by the respective District Basic Education Officers. All the petitioners have applied in various districts against notified vacancies.
5. Vide Circular No.Ba.Sh.Pa./ 16887 - 17056/ 1216 - 17 dated 02.03.2017, the Secretary, U.P. Basic Shiksha Parishad, Allahabad had issued a definite schedule fixing 18.03.2017 to 20.03.2017 for First Counselling, 25.03.2017 for Second Counselling and 31.03.2017 was fixed for issuing appointment letters. In paragraph 2 of the Circular dated 02.03.2017, it has been provided that only such candidates shall be called for counselling in the district who have completed Training (B.T.C., V.B.T.C., Urdu B.T.C.) from the very district.
6. Petitioners have submitted on-line applications against the notified vacancies at various districts. Vide Circular No.Ba.Sha.Pa./16887-17056/1216-17 dated 02.03.2017, the Secretary, U.P. Basic Shiksha Parishad, Allahabad has issued a definite schedule fixing 18.03.2017 to 20.03.2017 for first counsel, 25.03.2017 for second counselling and 31.03.2017 for issuing appointment letters. In para 2 of the said Circular, it is provided that only such candidates shall be called for counselling in the district who have done Training (BTC, VBTC, Urdu BTC) from the very district.
7. The instant bunch of writ petitions has been filed by petitioners with the object that the children are entitled for good quality of education under the provisions of Free and Compulsory Education Act, 2009 and the same cannot be achieved without appointing meritorious candidates.
8. Sri Anil Tiwari, learned Senior Advocate assisted by Sri Apoorva Tewari along with other learned Advocates appearing for petitioners has contended that the fundamental right to free and compulsory education to all children of 6 to 14 years of age is guaranteed by Article 21-A of the Constitution of India. The purpose of enacting Free and Compulsory Education is to provide good quality of education to the children but the same cannot be achieved without appointing meritorious teachers. If the procedure adopted for appointing Assistant Teachers fails to ensure the appointments of meritorious Teachers, it depicts arbitrariness and hit by Article 14 of the Constitution of India.
9. In support of his contention, learned Counsel has placed reliance to para 8 of Radhey Shyam Singh v. Union of India; (1997) 1 SCC 60, which is as follows:
"8. It is needless to emphasis that the purpose and object behind holding a recruitment examination is to select suitable and best candidates out of the lot and such an object can only be achieved by making a common select list of the successful candidates belonging to all the zones. On the other hand if zone-wise selection is made then various candidates who appeared in some of the zones and secured more marks than those who are selected from other zones would be deprived of their selection resulting into great injustice and consequent discrimination. Thus there can be said to exist no nexus between the aforesaid process of zone-wise selection and the object to be achieved, that is, the selection of the best candidates. That being so the process of selection as envisaged in paragraph 16 of the advertisement in question and reproduced in the earlier part of this judgment would lead to discriminatory results because by adopting the said process of zone-wise selection would result in the devaluation of merit at the selection examination by selecting a candidate having lesser marks over the meritorious candidate who has secured more marks and consequently the rule of equal chance for equal marks would be violated. Such a process would not only be against the principles enunciated in Articles 14 and 16 of the Constitution but it would also result in heart burning and frustration amongst the young men of the country. The rule of equality of opportunity for every individual in the country is an inalienable part of our constitutional guarantee and that being so a candidate who secures more marks than another is definitely entitled to get preference for the job as the merit must be the test when selecting a candidate for recruitment for the posts which are advertised. In the present case admittedly the process of selection as envisaged in paragraph 16 of the advertisement in question is violative of Articles 14 and 16 of the Constitution of India as it has been demonstrated from the marks st of the appellants placed before us at the Bar during the course of arguments that they had secured more marks than those secured by some of the selected candidates."
10. Learned Counsel appearing for petitioners has also placed reliance to paragraph 58 of Subramaniam Swamy v. Director, CBI; (2014) 8 SCC 682, which is as follows:
"58. The Constitution permits the State to determine, by the process of classification, what should be regarded as a class for purposes of legislation and in relation to law enacted on a particular subject. There is bound to be some degree of inequality when there is segregation of one class from the other. However, such segregation must be rational and not artificial or evasive. In other words, the classification must not only be based on some qualities or characteristics, which are to be found in all persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. Differentia which is the basis of classification must be sound and must have reasonable relation to the object of the legislation. If the object itself is discriminatory, then explanation that classification is reasonable having rational relation to the object sought to be achieved is immaterial."
11. During the course of argument, learned Counsel for the petitioner has also invited the attention of this Court towards "The Right of Children to Free and Compulsory Education Act, 2009" (in short RTE Act, 2009) and submitted that the Parliament has enacted the said Act with the following objects:
"1. and 2. ....
3. Consequently, the Right of Children to Free and Compulsory Education Bill, 2008 is proposed to be enacted which seeks to provide -
(a) that every child has a right to be provided full time elementary education of satisfactory and equitable quality in a formal school which satisfied certain essential norms and standards;
(b) to (d) .....
4. The proposed legislation is anchored in the belief that the values of quality, social justice and democracy and the creation of a just and humane society can be achieved only through provision of inclusive elementary education to all. Provision of free and compulsory education of satisfactory quality to children from the disadvantaged and weaker sections is, therefore, not merely the responsibility of schools run or supported by the appropriate Governments, but also of schools which are not dependent on Government Funds.
5. and 6. ...
Further, Section 8(g) of the aforesaid Act is as under:
8. Duties of appropriate Government. - The appropriate Government shall -
(a) to (f) ....
(g) ensure good quality elementary education conforming to the standards and norms specified in the Schedule;
(h) & (i) ..."
12. Learned Counsel appearing for the petitioner has next contended that the aforesaid discrimination shall defeat the intent of RTE Act, 2009. The petitioners apprehend that the instant selection process for appointment of 12,460 Assistant Teachers, due to strict adherence to Clause (a) of sub-Rule (1) of Rule 14 of 1981 Rules, would be plagued by the same illegal, unreasonableness and arbitrariness as were the earlier selection process for appointment of Assistant Teachers.
13. The learned Counsel appearing for petitioners has submitted that the condition for "inviting applications from candidates possessing prescribed training qualification from the district concerned" as contained in Clause (a) of sub-Rule (1) of Rule 14 of 1981 Rules is absolutely arbitrary as there is no reasonable nexus between the classification and the object sought to be achieved by inclusion of the condition. It is absolutely unreasonable and violation of Articles 14 and 16 of the Constitution. It has further been submitted that strict adherence to the aforesaid conditions amounts to violation of reservation policy which is detrimental to the General Category candidates as provided in Section 3(1) of the U.P. Public Service Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes Act, 1994.
14. Learned Counsel appearing for petitioners has invited attention of this Court towards paras 6 & 7 of the judgment of Hon'ble Supreme Court rendered in Govind A Mane v. State of Maharashtra; (2000) 4 SCC 200. Para 6 and 7 read as under:
"6. The law, thus, having been laid down clearly by this Court, the High Court was not justified in dismissing the Writ Petition. Since it is not disputed by the respondents that for the purpose of admission to B.Ed Course, seats were distributed districtwise without indicating any material to show the nexus between such distribution and the object sought to be achieved, it would be violative of Article 14 of the Constitution.
7. Unfortunately, the whole matter relates to the year 1995 and, today, after a lapse of five years, it would not be possible to direct that the appellants may be admitted in B.Ed Course. All that can be said is that if any further steps are taken by the respondents for fresh admission to B.Ed Course, the appellants should also be given an opportunity to seek admission in that Course."
15. Learned Counsel appearing for petitioners has further submitted that vide Government Order dated 12.09.2012, online applications were invited for B.T.C., V.B.T.C. and Urdu B.T.C. Training but in paragraph 2 of the said Government Order, it has clearly been provided that for the aforesaid training, the applicant shall apply in the Training Institute located in the district of his domicile/ residence. It is compulsory to present domicile certificate from the district concerned or else the candidature shall be deemed cancelled. Thus necessarily the basis for B.T.C. Training in a district would remain the domicile/ residence in that district.
16. Sri Anil Tiwari, learned Senior Advocate has submitted that the preparation of merit list at district wise and restricting the selection of meritorious candidates, who belongs to other districts, amounts to a discrimination and such act of the State Government is in violation of Articles 15(1) and 16(2). In support of his submissions, Sri Anil Tiwari, learned Senior Advocate has relied upon paras 44 to 50 of State of U.P. Vs. Anant Kumar Tiwari; 2003 (3) AWC 2060. Paras 44 to 50 reads as under:
"44. A merit list of all the applications received will be prepared on the basis of quality points of the educational and other qualifications in accordance with the provisions given in the Government orders mentioned above at the State level, which will be prepared in proportion to the total vacancies for training. The above list will be arranged district-wise, in conformity with the vacancies available in the district and a provision of reservation as per the rules will be ensured. The candidates on the merit list shall be allotted as per the following, in order of merit:
(a) Home district of the candidate ;
(b) Another district of the Division, wherein home district is located ;
(c) Nearest Division to the home district Division of the candidate where the vacancy is available.
45. The plea taken by learned Advocate General that the students ought to be taught in the local dialect which differs from region to region in the State of U.P. is misconceived, inasmuch as, by restricting the prospective applicants of the home district to apply in that district only presumably by virtue of birth alone in that district does not serve the purpose, as that person may have studied elsewhere and may have forgotten the dialect of the home district. Further Art.15(1) and Art.16(2) of the Constitution put a complete prohibition upon the State from discriminating persons on the basis of birth and place of residence in the matter of employment within the State. In the case of English Medium Students Parents Association, ((1994) 1 SCC 550 : AIR 1994 SC 1702) (supra), the Hon'ble Supreme Court had held that:
"All educational experts are uniformly of the opinion that pupils should begin their schooling through the medium of their mother tongue. There is great reason and justice behind this. Where the tender minds of the children are subject to an alien medium the learning process becomes unnatural, If inflicts a cruel strain on the children which makes the entire transaction mechanical. Besides, the educational process becomes artificial and torturous. The basic knowledge can easily be garnered through the mother tongue. The introduction of a foreign language tends to threaten to atrophy the development of mother tongue. When the pupil comes of age and reaches the Vth standard level, the second language is required to take it as a second language. At the secondary stage the three-language formula is introduced. However, in cases of non-Kannada speaking students grace marks up to 15 are awarded. Certainly, it cannot be contended that a student studying in a school from Karnataka need not know the regional language. It should be the endeavour of every State to promote the regional language of the State. In fact, the Government of Karnataka has done commendably well in passing this Government order. Therefore, to contend that the Imposition of study of Kannada throws an undue burden on the students is untenable. Again to quota Mahatma Gandhi :
"The medium of instruction should be altered at once and at any cost, the provincial languages being given their rightful place. I would prefer temporary chaos in higher education to the criminal waste that is daily accumulating."
As rightly contended by the learned Advocate General where the State by means of the Impugned Government order desires to bring about academic discipline as a regulatory measure it is a matter of policy. The State knows how best to implement the language policy. It is not for the Court to interfere."
46. Here, it is not the case that a different regional language is to be taught to the students in different local areas. The subject in the course is same throughout the State. The medium of teaching is also the same. Only the dialect differs which too has been taken care of by providing allocation of seats in the home district to the candidates under the Government order dated 14.9.2001 out of the merit list prepared at the State level. In the case of Arun Tiwari (supra), the facts were that the assistant teachers in Madhya Pradesh are governed by the Madhya Pradesh Non-Gazetted Class III Education Service (Non-Collegiate Service) Recruitment and Promotion Rules, 1973, which provided for direct recruitment by competitive examination followed by an interview. During the Eighth Plan period, i.e., from 1992 to 1997 the Central Government sponsored a scheme known as Operation Blackboard Scheme. Under this scheme the Government of India gave financial clearance to the State of Madhya Pradesh to implement this scheme by appointing additional teachers in all primary middle schools which had only one teacher In order to improve the standards of education. In order to implement the scheme the State of Madhya Pradesh decided to fill in about 7,000 to 11,000 posts of Assistant Teachers in such schools. The recruitment Rules of 1973 were amended on 10.5.1993 by adding a proviso, which empowers the State Government to prescribe the criteria and procedure for selection of candidates in any circumstances. The State Government provided that selection of Arts teachers in 1993 will be made by committee instead of Junior Service Selection Board by inviting applications from employment exchange and making selection district-wise. Certain persons, who did not even possess the prescribed qualifications, challenged the selection process. The Hon'ble Supreme Court held as follows :
"The next contention relates to inviting applications from employment exchanges Instead of by advertisement. This procedure has been resorted to looking to the requirements of a time bound scheme. The original applicants contended that if the posts had been advertised, many others like them could have applied. The original applicants, who so complain, however, do not possess the requisite qualifications for the post. As far as we can see from the record, nobody, who had the requisite qualifications has complained that he was prevented from applying because advertisement was not issued. What is ; more important, in the special circumstances requiring a speedier process of selection and appointment, applications were invited through employment exchanges for 1993 only. In this context, the special procedure adopted is not unfair. The State has relied upon the case of Union of India Vs. Hargopal, ((1987) 3 SCC 308 : AIR 1987 SC 1227) where Government institution enjoining that the field of choice should, in the first instance, be restricted to candidates sponsored by the employment exchanges, was upheld as not offending Arts. 14 and 16 of the Constitution. In the case of Delhi Development Horticulture Employees' Union v. Delhi Admn., ((1992) 4 SCC 99) (SCC at p 111) : (AIR 1992 SC 789), this Court approved of recruitment through employment exchanges as a method of preventing malpractices. But in the subsequent and more recent case of Excise Supdet. V. K.B.N. Visweshwara Rao, (1996 AIR SCW 3979) this Court has distinguished Unionof India v. Hargopal,((1987) 3 SCC 308 : AIR 1987 SC 1227), on the basis of special facts of that case. It has observed that the better course for the State would be to Invite applications from employment exchanges as well as to advertise and also give wide publicity through T.V., Radio, etc. The Court had to consider whether persons, who had applied directly and not through employment exchanges should be considered. This Court upheld their claim for consideration.
There are different methods of inviting applications. The method adopted in the exigencies of the situation in the present case cannot be labelled as unfair, particularly when, at the relevant time, the two earlier decisions of this Court were in vogue." 46. The Apex Court in the case of Kailash Chand Sharma V. State of Rajasthan, (2002) 5 JT (SC) 591 : ((2002) 6 SCC 562 : AIR 2002 SC 2877) had 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 and there is no rational basis for such preferential treatment. In paragraphs 14 and 15 of the reports, the Apex Court has held as follows : "Before proceeding further we should steer clear of a misconception that surfaced in the course of arguments advanced on behalf of the State and some of the parties. Based on the decisions which countenanced geographical classification for certain weighty reasons such as socio-economic backwardness' of the area for the purpose of admission to professional colleges, it has been suggested that residence within a district or rural area of that district could be a valid basis for classification for the purpose of public employment as well. We have no doubt that such a sweeping argument which has the overtones of parochialism is liable to be rejected on the plain terms of Art. 16(2) and in the light of Art. 16(3). An argument of this nature files in the face of the peremptory language of Art. 16(2) and runs counter to our constitutional ethos founded on unity and integrity of the nation. Attempts to prefer candidates of a local area in the State were nipped in the bud by this Court since long past. We would like to reiterate that residence by itself-be it be within a State, region, district or less area within a district cannot be a ground to accord preferential treatment or reservation, save as provided in Art. 16(3). It is not possible to compartmentalize the State into district with a view to offer employment to the residents of that district on a preferential basis. At this juncture it is appropriate to undertake a brief analysis of Art. 16".
Article 16, which under Clause (1) guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State reinforces that guarantee by prohibiting under Clause (2) discrimination on the ground only of religion, race, caste, sex, descent, place of birth, residence or any of them. Bee it noted that in the allied Article 15, the word 'residence' is omitted from the opening clause prohibiting discrimination on specified grounds. Clauses (3) and (4) of Article 16 dilute the rigour of Clause (2) by (i) conferring an enabling power on the Parliament to make a law prescribing the residential requirement within the State in regard to a class or classes of employment or appointment to an office under the State and (ii) by enabling the State to make a provision for the reservation of appointments or posts in favour of any backward class of citizens which is not adequately represented in the services under the State. The newly introduced Clauses (4A) and (4B), apart from Clause (5) of Article 16 are the other provisions by which the embargo laid down in Article 16(2) in somewhat absolute terms is lifted to meet certain specific situations with a view to promote the overall objective underlying the Article. Here, we should make note of two things, firstly, discrimination only on the ground of residence (for place of birth) in so far as public employment is concerned is prohibited ; secondly, Parliament is empowered to make the law prescribing residential requirement within a State or Union Territory as the case may be, in relation to a class or classes of employment. That means, in the absence of Parliamentary law, even the prescription of requirement as to residence within the State is a taboo. Coming to the first aspect, it must be noticed that the prohibitory mandate under Article 16(2) is not attracted if the alleged discrimination is on grounds not merely related to residence, but the factum of residence is only taken into account in addition to other relevant factors. This effect, is the import of the expression 'only'."
47. In paragraphs 24, 25 and 32 the Apex Court further held as follows :
"24. Before examining the further pleas in support of the impugned action taken by the State it would be apposite to refer to the decision in State of Maharashtra v. Raj Kumar, on which reliance has been placed by the High Court and reference has been made in the course of arguments before us. In that case a rule was made by the State of Maharashtra that a candidate in order to be treated as a rural candidate must have passed S.C.C. examination which is held from a village or a town having only 'C' type municipality: The object of the rule, as pointed out by this Court, was to appoint candidates having full knowledge of rural life and its problems so that they would be more suitable for working as officers in rural areas. The rule was struck down on the ground that there was no nexus between classification made and the object sought to be achieved because "as the rule stands any person, who may not have lived in a village at all can appear for S.C.C. examination from a village and yet become eligible for selection,"The rule was held to be violative of Articles 14 and 16. Another point discussed by the Court about the propriety of giving bonus marks for the rural candidates and the Court held thus :
"The rules also provide that viva-voce board would put relevant questions to judge the suitability of candidate for rural areas and to test whether or not they have sufficient knowledge of rural problems, and this no doubt amounts to a sufficient safeguard to ascertain the ability of the candidate regarding his knowledge about the affairs of the village. In such a situation there was absolutely no occasion for making an express provision for giving weightage, which would virtually convert merit into demerit and demerit into merit and would be per se violative of Article 14 of the Constitution as being an impermissible classification. The rule of weightage as applied in this case is mainly unreasonable and wholly arbitrary and cannot be sustained."
25. This decision is not a direct authority for the proposition that a citizen cannot be preferred for employment under the State on the ground that he or she hails from rural area. However, what has been laid down in regard to the first point assumes some relevance in the cases on hand. The criterion for Identifying a rural candidate was held to be irrelevant, as it had no nexus with the object sought to be achieved. In the present case, the position is much worse as the impugned circular does not spell out any criteria or indicia to determine whether an applicant is a rural candidate."
32. 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 confronts us in the present cases. We are here concerned with the selections to the posts of teachers of primary schools, the minimum qualification being S.C.C. 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 pedestral 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 town-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."
48. The Apex Court also repelled the plea regarding local dialect and residence of rural area with the following observations ((2002) 6 SCC 562 : AIR 2002 SC 2877, Paras 36, 39):
"Shri Rajeev Dhawan appearing for the selected candidates, who have filed S.L.P. (C) No. 10780 of 2001, did his best to support the impugned circular mainly on the second ground, namely, better familiarity with the local dialect. The learned counsel contends that when the teachers are being recruited to serve in gram panchayat areas falling within the concerned panchayat samiti, those hailing from the particular district and the rural areas of that district are better suited to teach the students within that district and the panchayat areas comprised therein. He submits that the local candidates can get themselves better assimilated into the local environment and will be in a better position to interact with the students at primary level. Stress is laid on the fact that though the language/mother tongue is the same, the dialect varies from district to district and even within the district. By facilitating selection of local candidates to serve the panchayat run schools, the State has not introduced any discrimination on the ground of residence but acted in furtherance of the goal to impart education. Such candidates will be more effective as primary school teachers and more suitable for the Job. It is therefore, contended that the classification is grounded on considerations having nexus with the object sought to be achieved and is not merely related to residence. We find it difficult to accept this contention, though plausible it is. We feel that undue accent is being laid on the dialect theory without factual foundation. The assertion that dialect and nuisances of the spoken language varies from district to district is not based upon empirical study or survey conducted by the State. Not even specific particulars are given in this regard. The stand in the counter-affidavit (extracted supra) is that each zone has its distinct language. "If that is correct the Zila Parishad should have mentioned in the notification that the candidates should know particular language to become eligible for consideration. We are inclined to think that reference has been made in the counter to 'language' ; instead of dialect rather inadvertently. As seen from the previous sentence, the words dialect and language are used as Inter-changeable expressions, without perhaps understanding the distinction between the two. We therefore, take it that what is meant to be conveyed in the counter is that each zone has a distinct dialect or vernacular and therefore local candidates of the district would be in a better position to teach and interact with the students. In such a case, the State Government should have identified the zones in which vernacular dissimilarities exist and the speech and dialect vary. That could only be done on the basis of scientific study and collection of relevant data. It is nobody's case that such an exercise was done. In any case, if these differences exist zone-wise or region-wise, there could possibly be no justification for giving weightage to the candidates on the basis of residence in a district. The candidates belonging to that zone, irrespective of the fact whether they belong to X, Y or Z district of the zone could very well be familiar with the allegedly different dialect peculiar to that zone. The argument further breaks down, if tested from the standpoint of award of bonus marks to the rural candidates. Can it be said reasonably that candidates, who have settled down in the town will not be familiar with the dialect of that district? Can we reasonably proceed on the assumption that rural area candidates are more familiar with the dialect of the district rather than the town area candidates of the same district? The answer to both the questions in our view cannot be in the negative. To prefer the educated people residing in villages over those residing In towns-big or small of the district, on the mere supposition that the former (rural) candidates will be able to teach the rural students better would only amount to creating an artificial distinction having no legitimate connection to the object sought to be achieved. It would then be a case of discrimination based primarily on residence which is prescribed by Article 16(2)". "38. 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 held 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 State of Maharashtra v. Raj Kumar, is illustrative of the problem created by vague or irrelevant criteria. In that case a rule was made by the State of Maharashtra that a candidate will be considered a rural candidate if he had passed S.S.C. 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 S.S.C. examination from village and yet become eligible for selection." The rule was held to be violative of Articles 14 and 16. When no guidance at all is discernible from the Impugned circular as to the identification of the residence of the applicants especially having regard to the Indefinite nature of the concept of residence, the provision giving the benefit of bonus marks to the rural residents will fall foul of Article 14.
49. The aforementioned decision has been subsequently followed by the Apex Court in the case of Harshendra Choubissa v. State of Rajasthan, (2002) 6 JT (SC) 553: ((2002) 6 SCC 393 : AIR 2002 SC 2897). In paragraph 12 of the report, the Apex Court has held as follows :
"12. The second ground urged by the State is equally Irrelevant and untenable. Most of the reasons given by us in the judgment just delivered in teachers' cases will hold good to reject this plea. No factual details nor material has been placed before us to substantiate that the spoken language and dialect varies from district to district. It will not be reasonable to assume that an educated person belonging to a contiguous district or districts will not be able to effectively communicate with the people of the district in which he is appointed or that he would be unfamiliar with the living conditions and culture of that district. He cannot be regarded as an alien in a district other than his native district. If any classification has to be done in this regard, it should be based on a scientific study but not on some broad generalization. If any particular region or area has some peculiar socio-cultural or linguistic features warranting a differential treatment for the purpose of deploying personnel therein, that could only be done after conducting a survey and identifying such regions or districts. That is the minimum, which needs to be done. There is no factual nor rational basis to treat each district as a separate unit for the purpose of offering public employment. Above all, it is wrong to assume that the candidates belonging to rural areas than the candidates living in nearby towns. The criteria of merit cannot be allowed to be diluted by taking resort to such artificial differentiation and irrelevant assumptions. On the material placed before us, we have no hesitation in holding that the addition of bonus marks to the applicants belonging to the same district and the rural areas of that district would amount to discrimination, which falls foul of Articles 14 and 16."
50. Applying the principles laid down by the Apex Court in the aforementioned cases to the present case, we find that restricting the selection and preparation of merit list at the District level are not all justified and it amounts to discrimination. In the present case taking into consideration the exigencies the State Government had decided to prepare the merit list at the State level and for restoring it to District level the reasons advanced by the State Government are irrelevant. Thus, the action of the State in restoring the preparation of merit list from State level to District level is arbitrary and is violative of Articles 15(1) and 16(2) of the Constitution of India."
17. Sri Anil Tiwari, learned Senior Advocate has next submitted that the merit of a candidate cannot be demerit merely on the ground that he is not the resident of the district for which the post has been advertised. The doctrine of equality enshrined under Article 16 cannot be let loose on considerations that are not permissible under the Constitution. Learned Senior Advocate has placed reliance in the case of Deepak Kumar Suthar v. State of Rajasthan; (1992) 2 RLR 692 (Paras 35, 39, 40 & 42). He has further submitted that awarding bonus marks to the candidates who belongs to the same district is also violation of Articles 14 and 16. He has again placed reliance to para 12 and 13 of Harshendra Choubissa v. State of Rajasthan; (2002) 6 SCC 393, which reads as under:
"12. The second ground urged by the State is equally irrelevant and untenable. Most of the reasons given by us in the judgment just delivered in teachers' cases will hold good to reject this plea. No factual details nor material has been placed before us to substantiate that the spoken language and dialect varies from district to district. It will not be reasonable to assume that an educated person belonging to a contiguous district or districts will not be able to effectively communicate with the people of the district in which he is appointed or that he would be unfamiliar with the living conditions and culture of that district. He cannot be regarded as an alien in a district other than his native district. If any classification has to be done in this regard, if should be based on a scientific study but not on some broad generalization. If any particular region or area has some peculiar socio-cultural or linguistic features warranting a differential treatment for the purpose of deploying personnel therein, that could only be done after conducting a survey and identifying such regions or districts. That is the minimum which needs to be done. There is no factual nor rational basis to treat each district as a separate unit for the purpose of offering public employment. Above all, it is wrong to assume that the candidates belonging to rural areas will be better suited to serve those areas than the candidates living in nearby towns. The criterion of merit cannot be allowed to be diluted by taking resort to such artificial differentiation and irrelevant assumptions. On the material placed before us, we have no hesitation in holding that the addition of bonus marks to the applicants belonging to the same district and the rural areas of that district would amount to discrimination which falls foul of Articles 14 and 16.
13. We now come to the question of relief. We are of the view that for the reasons set out in the judgment delivered by us today in Kailash Chand Sharma case [(2002) 6 SCC 562] the judgment of the High Court has to be given prospective effect so that its impact may not fall on the appointments already made prior to the date of judgment. That is also the view taken in Deepak Kumar Suthar case which has been followed in the impugned order of the High Court. However, in Writ Petition (C) No. 6256 of 1999, the High Court did not make it clear that the judgment will operate prospectively, though in the other impugned order the High Court gave effect to the judgment without touching the appointments made before 21-10-1999. We are of the view that the date of application of the judgment should be from 27-7-2000 which was the date on which Writ Petition No. 5 of 2000 was allowed by the learned Single Judge holding that the notification in regard to bonus marks for the purpose of selection of Gram Sewaks was invalid. The other important fact which should be taken into account in moulding the relief is that at the instance of three persons who applied for the posts advertised by the Zila Parishads of Barmer and Bikaner, it is not proper to set aside the entire selection, especially when none of the appointed candidates were made parties before the High Court. We are, therefore, inclined to confine the relief only to the parties who moved the High Court for relief under Article 226, subject, however, to the application of the judgment prospectively from 27-7-2000. Accordingly, we direct as follows:
1. The claims of the three writ petitioners who are respondents herein should be considered afresh in the light of this judgment vis-a-vis the candidates appointed on or after 27-7-2000 or those in the select list who are yet to be appointed. On such consideration, if those writ petitioners are found to have superior merit in case the bonus marks of 10% and/or 5% are excluded, they should be offered appointments, if necessary, by displacing the candidates appointed on or after 27-7-2000.
2. The appointments of Gram Sewaks made up to 26-7-2000 need not be reopened and reconsidered in the light of the law laid down in the judgment."
18. Per contra, learned Counsel appearing on behalf of the respondents has vehemently opposed the contentions made by the learned Counsel appearing on behalf of petitioners.
19. Sri Upendra Nath Misra, learned Senior Advocate assisted by Sri Neel Kamal Misra, learned Counsel appearing for private respondents has raised a preliminary objection towards the maintainability of the writ petitions on the ground that after participating in selection process, the petitioners cannot challenge the validity of selections. In support of his contention, he has placed reliance in the case of Dhanjay Malik and others Vs. State of Uttaranchal and others; (2008) 4 SCC 171, wherein the Hon'ble Apex Court has categorically held that where a person participates in a selection process without any demur, then in such a case, he is stopped from challenging the same.
20. Sri Upendra Nath Misra, learned Senior Advocate has further submitted that the petitioners are the participants of the selection held for the post of Assistant Teachers, which was advertised on 25.06.2016 against 16,448 vacancies. At that time the then existing Rule 14(1)(a) of U.P. Basic Education (Teachers) Service Rules, 1981, the candidates who were possessing the prescribed qualification and training, were asked to submit their applications for appointments from the concerned district. The petitioners who had already participated in the selection challenged the Circular dated 03.08.2016 whereby counselling was convened for the aforesaid selection. Simultaneously the petitioners had challenged the vires of Rule 14 (1)(a) of U.P. Basic Education (Teachers) Service Rules, 1981, as it was then existing. A writ of certiorari was prayed for quashing para 6 (Kha) of the guidelines dated 25.06.2016, inasmuch as, it provides that the candidates with BTC training will be considered in the district of training in the first counselling. Apart from that, a writ of mandamus was also prayed for allowing the petitioners to appear in the counselling of the district of their choice, instead of compelling to approach only in the district, from where they completed their BTC Training. The process of the selection was completed in August, 2016 in which all the answering respondents herein were duly selected for appointment as Assistant Teachers for different districts according to the then existing Rules. Therefore, it is not open for petitioners to challenge their appointment after participating in the aforesaid selection.
21. Sri Mishra has again submitted that the factual matrix of the case is that 1981 Rules was promulgated on 03.01.1981 and in the original Rule itself, provision for district preference was contained in Rule 14(1) (a). Rule 14 and 15(2) were amended on 17.07.1981 in which it was provided that for preparation of select list according to the place of residence, but under special circumstances, the candidate could have been sent to the other district but would be placed at the bottom of seniority. On 09.11.2011, 12th amendment took place and Rule 14(3) was amended providing weightage to the marks obtained by the candidate in the Teachers Eligibility Text (TET). On 30.11.2011 an advertisement for recruitment of 72,825 vacancies of assistant teachers was issued, which was to be held on the basis of Teachers Eligibility Test marks but in March 2012, the said advertisement was subsequently cancelled. After the change of Government in State of U.P. in March 2012, 15th amendment of the Service Rules took place on 31.08.2012, which changed the basis of selection from giving weightage to TET marks to "quality point marks" to be calculated on the basis of academic qualification. On 07.12.2012, a fresh advertisement was issued for recruitment for 72,825 vacancies of Assistant Teachers but then it was made on the basis of quality point marks, instead of TET marks. The said procedure of selection made on basis of quality point marks was challenged in the case of Shiv Kumar Pathak Vs. State which was allowed and Rule 14(3) was set aside as being ultra vires and simultaneously advertisement dated 7.12.2012 was also quashed. The Special Leave Petition against the aforesaid judgment dated 07.12.2012 was filed by the State, wherein Hon'ble Apex Court as an interim measure directed the State to fill up the vacancies as per advertisement dated 30.11.2011. In the year, 2015, the recruitment of 66,655 candidates was made against the advertised vacancies of 72,825 on the basis of TET marks. During the pendency of the aforesaid bunch of case (title State Vs. Shiv Kumar Pathak) pending in Hon'ble Apex Court, the State Government made about 99,132 more appointments in parts. The aforesaid appointment of 99,132 teachers was also challenged before this Hon'ble Court in the case of Deepak Sharma v. State, in which 15th and 16th amendment of the Rules were challenged and simultaneously the said appointment was also challenged on the ground that no weightage of TET marks was given though it was prescribed by NCTE under clause 9(b) of its statutory guidelines dated 11.02.2011. On 1.12.2016, a Division Bench of this Hon'ble Court, had struck down Rule 14(3) (a) in the case of Deepak Sharma Vs. State, on the ground that not giving weightage of TET marks was against the mandatory guidelines of National Council for Teachers Education (NCTE) and the said special appeals were disposed of and the selection of 99,132 teachers was not upheld by this Hon'ble Court, but status quo was directed to be maintained till disposal of pending special leave petitions in the case of State v. Shiv Kumar Pathak. Against the aforesaid judgment dated 01.12.2016, several special leave petitions were filed by the selected candidates of both 1st and 2nd selections, leading of which was Ram Kumar Patel Vs. State of U.P. Meanwhile, the NCTE filed an affidavit before Hon'ble the Apex Court for saying that the stipulation regarding weightage to TET marks under clause 9(B) of the NCTE guidelines was not mandatory. Thus, the Hon'ble Apex Court vide order dated 25.07.2017 held that since the notification of the NCTE dated 11.02.2011 to the extent of suggesting weightage to TET marks can be held to be merely a guideline, therefore, weightage to TET marks was not mandatory and therefore, State Rules may not be held to be void. Thus, the judgment of the Divisions Bench of this Court dated 01.12.2016 was set aside vide order dated 25.07.2017. As a result of the aforesaid judgment, both 1st Selection (for 15,000 vacancies) and 2nd Selection (for 16,448 vacancies) stand protected/ saved by the Apex Court in which the applicants were appointed.
22. It is also submitted that in the meantime, the judgment in the pending case of State Vs. Shiv Kumar Pathak was also pronounced, in which, it was held that the computation of quality point marks was not violative of Article 14. Though 15th amendment about introducing quality point marks was upheld but since the 66,655 appointments were already made under the interim order of Hon'ble Apex Court against 72,825 post on the basis of the advertisement dated 30.11.2011 (i.e. on the basis of TET marks only therefore the same were protected without any interference).
23. Sri Upendra Nath Misra has urged that even if vires of any provision granting any preference is not approved and declared unconstitutional, the selections already made should not be disturbed in order to avoid multiplicity of litigation, therefore, the appointment already made in the first and second selection need not be disturbed and deserve to be protected without any interference. He also urged that despite declaring a particular provision as ultra vires, the Courts have protected the selections and appointments already made before the pronouncement of the judgment. He has relied upon the following judgments:
"V.N. Sunanda Reddy and others Vs. State of A.P. and others; 1995 Supp (2) SCC 235.
15. Before parting we may mention one submission on behalf of the Telugu medium students. It was submitted that if the weightage given to them in recruitment is to be found fault with, those Telugu medium candidates who have already been appointed may not be disturbed otherwise irreparable injury will be caused to them. It was also submitted that those Telugu medium students whose appointments could not be made on account of the pendency of these proceedings may be given one more chance to compete for future recruitment on such posts and for that purpose suitable age relaxation may be given to them as otherwise they will be out of the employment market. In our view this request is quite reasonable and deserves to be granted. We, therefore, direct that despite our finding that 5 per cent weightage given to the Telugu medium graduates in the present case is violative of Articles 14 and 16(1) of the Constitution, those Telugu medium graduates who have already been appointed on the strength of such weightage and who are working on their posts concerned should not be disturbed and their appointments will not be adversely affected by the present judgment. On the other hand, those Telugu medium graduates who have been selected on the strength of the weightage but to whom actual appointments have not been given on account of pendency of the present proceedings should be given a chance to compete for such posts as and when future recruitment to such posts is resorted to and for that purpose only once suitable age relaxation may be given to them in case they are otherwise found suitable on merits to be appointed in such future direct recruitment to such posts. In other words, only on account of the fact that they have become age barred, they should not be enied appointments on the strength of their meritorious performance. This will be by way of only one-time concession about age relaxation.
Radhey Shyam Singh and others Vs. Union of India and others; (1997) 1 SCC 60
10. The argument advanced by the learned counsel for the respondents that this process of zonewise selection has been in vogue since 1975 and has stood the test of time cannot be accepted for the simple reason that it was never challenged by anybody and was not subjected to judicial scrutiny at all. If on judicial scrutiny it cannot stand the test of reasonableness and constitutionality it cannot be allowed to continue and has to be struck down. But we make it clear that this judgment will have prospective application and whatever selections and appointments have so far been made in accordance with the impugned process of selection shall not be disturbed on the basis of this judgment. But in future no such selection shall be made on the zonal basis. If the Government is keen to make zonewise selection after allocating some posts for each zone, it may make such scheme or rules or adopt such process of selection which may not clash with the provisions contained in Articles 14 and 16 of the Constitution of India having regard to the guidelines laid down by this Court from time to time in various pronouncements. In the facts and circumstances of the case we make no order as to costs. The appeals and writ petitions are allowed as indicated above.
Triveni Chandra Pandey Vs. State of Jharkhand (Uttarakhand High Court); Special Appeal No.360 of 2012 decided on 26.11.2013
25. This Court has been informed that pursuant to the selections of the year 2011-2012, which have been challenged before this Court appointment has already been made and such appointed candidates are presently teaching as Primary School Teacher. Although the criteria fixed by the State authorities of residence was patently in violation of Article 16(2) of the Constitution of India, the fact remains that such teachers who have been teaching, their appointment will not be disturbed, but in future, the State Authorities shall not fix residence or place of birth, as a criteria of appointment in any public job. To that extent this order is made applicable prospectively. However, since the challenge to the criteria of residence was primarily by the appellant - Triveni Chandra Pandey, it is hereby directed that subject to the marks, which he has received and vacancy, candidature of the petitioner shall also be considered for appointment as a Primary School Teacher, in any other district in Uttarakhand as well, where a candidate having lower quality points then him has been given appointment. Needful be done within a reasonable time."
24. Dr. L.P. Mishra, learned Counsel appearing for private respondents has argued that the children have right to free and compulsory education up to the age of 14 years and the said object can only be fulfilled if such children are imparted education in their mother tongue based on the local dialect of concerned district where children reside and take primary education. Section 29(2)(f) of the RTE Act, 2009 casts a duty on the teachers to impart education in mother tongue and in view of the duties and functions in Section 24 of the RTE Act, 2009, every teacher can only fulfill the said object if such teacher is of the concerned district from where he has obtained the training because such person are already acquainted with the demographic conditions, local dialect and traditions, from where the children who are to be taught come from. The knowledge and understanding of local dialect is essential for a teacher in the rural areas for a better classroom transaction with small children and their parents.
25. Sri L.P. Mishra, learned Senior Advocate has submitted that the parliament had enacted the RTE Act, 2009 with an object to provide free and compulsory education to all children of the age of six to fourteen years. Section 2(c) defines the child and Chapter II provides for the right to free and compulsory education. Chapter III provides for the duties of the appropriate Government, local authority and parents. Chapter IV defines the responsibilities of schools and teachers whereas Chapter V provides curriculum and completion of elementary education. Chapter VI provides protection of rights of children and Chapter VII contains miscellaneous provisions.
26. Dr. L.P. Mishra, learned Senior Advocate has relied and emphasized on the provisions of Section 29 of the RTE Act, 2009 which is as follows:
"Curriculum and evaluation procedure.-(1) The curriculum and the evaluation procedure for elementary education shall be laid down by an academic authority to be specified by the appropriate Government, by notification.
(2) The academic authority, while laying down the curriculum and the evaluation procedure under sub-section (1), shall take into consideration the following, namely:-
(a) conformity with the values enshrined in the Constitution;
(b) all round development of the child;
(c) building up child's knowledge, potentiality and talent;
(d) development of physical and mental abilities to the fullest extent;
(e) learning through activities, discovery and exploration in a child friendly and child-centered manner;
(f) medium of instructions shall, as far as practicable, be in child's mother tongue:
(g) making the child free of fear, trauma and anxiety and helping the child to express views freely:
(h) comprehensive and continuous evaluation of child's understanding of knowledge and his or her ability to apply the same."
27. Dr. L.P. Mishra, learned Senior Advocate has also invited the attention of this Court towards relevant sections of The Right of Children to Free and Compulsory Education Rules, 2010, which is as under:
"3. Composition and functions of the School Management Committee (1) A School Management Committee (hereinafter in this rule referred to as the said Committee) shall be constituted in every school other than an unaided school within six months of the appointed date, and reconstituted every two years.
(2) Seventy five percent of the strength of the said Committee shall be from amongst parents or guardians of children.
(3) The remaining twenty-five percent of the strength of the said Committee shall be from amongst the following persons, namely:
(a) one-third members from amongst the elected members of the local authority, to be decided by the local authority:
(b) one-third members from amongst teachers from the school, to be decided by the teachers of the school;
(c) one-third members from amongst local educationists or children in the school, to be decided by the parents in the said Committee.
x x x x x x x x x x x x x x x x x x"
28. Dr. L.P. Misrha, learned Senior Advocate has contended that in an International research published in International Journal of Humanities and Management Sciences after an elaborate studies and recommendations of United Nations Organization, The United Nations Educational, Scientific and Cultural Organization and other International Agencies have recommended the Mother Tongue to be the medium of instructions for the children at Primary Level. Mother tongue is the first language which a child speaks. The mother tongue is used at home and in the community. He has further contended that the celebration of International Mother Language Day proclaimed in 1999 by UNESCO and marked on 21 February each year, is one of the examples. Encouraging education in the mother tongue, alongside bilingual or multilingual education, is one of the principles set out by UNESCO.
29. It has again been contended by Dr. L.P. Misrha, learned Senior Advocate that it is also a right of a child to be taught in his/her mother tongue at least at primary level because it is a language that he/she knows well and can use to form sentences and expresses himself/ herself. Those children understanding the instruction in mother tongue are more likely to enter the school at proper age, appropriate times, attend school regularly and less likely to drop out as compared to those who receive instruction in a foreign language. Experiments proved that a lack of education in a first language was a reason for children dropping out, while children having access to instruction in their mother tongue were more likely to be enrolled and attending school. Classroom using first language of children as instruction language were more than three times less likely to drop out and five times less likely to repeat the year. Thus mother tongue is the best key to success in education and to achieve the goal of RTE Act. So it is advised that the mother tongue should be used as a medium of instruction for educational achievements and growth as well as for national development and reconstruction.
30. Mr. Ramesh Kumar Singh, Learned Additional Advocate General has supported the arguments advanced by Sri Upendra Nath Misra and Sri L.P. Mishra and submitted that the State Government is well within its right to prepare merit list at the district level for the special reasons that teaching in Basic Primary Schools has to be made in the local dialect and the persons belonging to that district alone are well versed in the local dialect.
31. We have heard learned Counsel for the parties and perused the material available on record including the affidavits exchanged between the parties.
32. Petitioners have challenged the the provisions of Clause (a) of sub-Rule (1) of Rule 14 of the U.P. Basic Education (Teachers) Service Rules, 1981, by which applications were invited from the applicants/ candidates possessing prescribed training qualifications from the district wise only, on the ground that it violates Articles 14, 15, 16, and 21-A of the Constitution of India as also the aim and objects of The Right of Children to Free and Compulsory Education Act, 2009.
33. The object of the RTE Act, 2009 is that every Indian citizen should have the right to get education which is not inferior to another and also to provide primary education to the children in their own local language as well as to ensure that the persons who have been appointed for giving the education at the primary stage should be familiar with the atmosphere and local culture and understanding. The moot question before us to consider is whether the provisions of the scheme are in violation of Article 21-A of the Constitution of India and whether the State has failed to establish just and reasonable classification with intelligible differentia to achieve the objects enshrined.
34. The instant bunch of writ petitions have been filed before this Court to answer the following substantial questions:
"(1) Whether in view of the frame and purport of The Right of Children to Free and Compulsory Education Act, 2009, the engagement or appointment of Assistant Teachers (Primary) by preparing a merit list at District Level, not at State Level is against the provisions of Articles 14, 15, 16 and 21-A of the Constitution of India as stated by the petitioners?
(2) Whether in view of the frame and purport of The Right of Children to Free and Compulsory Education Act, 2009, the engagement of the Assistant Teachers (Primary) giving preference to the place of domicile or residence and/ or local area is permissible in law?"
35. The crux of the argument advanced by learned Counsel appearing for the petitioners is that the district wise process of selection adopted by the State did not provide equal opportunity to the candidates appearing in different districts though the competitive examination was same in all the districts. Since the vacancies available in each districts were not indicated, the petitioners were denied the opportunity of appearing at the competitive examination from a centre of a district where the number of the vacancies was large there being more and better chances of selection. Thus the petitioners were denied the opportunity of competing with the candidates of other centres. It has also been submitted that the candidates appearing in a district having large number of vacancies were declared selected though they had secured marks less than the candidates in other district where the vacancies were less by reason of which the candidates securing even more marks than the candidates in other district could not be selected. He, therefore, urged that the process and method of district-wise selection of candidates adopted by the Commission was violative of Articles 14 and 16 of the Constitution of India as it had resulted in selection of candidates of inferior quality in one district while the candidates of superior merit in the other district could not be selected. On the other hand, learned counsel appearing for the respondents supported the process of selection and submitted that the district wise selection was adopted in order to enable the candidates from a particular district to be absorbed in the same district and the State Government recruiting the candidates to the post of Assistant Teachers for primary schools on district basis and they were completed the same and the person who was selected has already been appointed and serving as Assistant Teacher in the same district since long, therefore, they could not be disturbed. It has also been submitted that the composition of district and scheme of holding the examination on district basis was given in the advertisement and the candidates were free to choose the district from which they desired to appear in the recruitment examination and to choose the centre. It has also been stated that since the petitioners had appeared in the examination, but could not be selected and as such they cannot be permitted to challenge the process of selection now.
36. The primary schools in the State of U.P. run by the U.P. Basic Education Board (hereinafter referred to as the Board) in the State of U.P. for the last several years and there had been a shortage of teachers, as a result of which, the State Government was finding it difficult to fulfill its obligations as mandated by Article 45 of the Constitution of India to provide free and compulsory education for all children until they complete the age of 14 years. It appears that in the State of U.P., the State Government runs a training college in each district, where the persons are given training in teaching and on successful completion thereof are awarded Basic Teacher's Certificate (in short "BTC").
37. As per the Government Order No.3300/ 79-5-201604127/ 2013 dated 15.12.2016, the selection process for appointing 12,460 Assistant Teachers in primary schools run by the Parishad/ Board in the State of U.P. was initiated. In pursuance of the aforesaid Government Order dated 15.12.2016, the Secretary, U.P. Basic Shiksha Parishad/ Board issued Letter No.Ba.Sh.Pa./ 12836 - 12932/ 2016-17 dated 20.12.2016 declaring the Schedule as also the vacancies in the district across the State. The Board has also issued Guidelines on 28.12.2016.
38. In pursuance of the aforesaid letter dated 20.12.2016 of the Secretary, U.P. Basic Shiksha Parishad, Allahabad, advertisement inviting on-line applications against the notified vacancies of Assistant Teachers were published by the respective District Basic Education Officer(s).
39. Advertisement published by the District Basic Education Officer, Varanasi is reproduced below for ready reference:
"dk;kZy; ftyk csfld f'k{kk vf/kdkjh tuin&okjk.klh i=kad% 17604&05@2016&17 fnukad 21 fnlEcj] 2016 foKfIr tuin okjk.klh esa mRrj izns'k csfld f'k{kk ifj"kn }kjk lapkfyr ifj"knh; izkFkfed fo|ky;ksa esa 'kklukns'k la[;k 3300@79&5&2016&4127@2013 fnukad 15 fnlEcj 2016 ds vuqdze esa 12460 lgk;d v/;kidksa ds fjDr inksa ds lkis{k 'kklukns'k fuxZr gksus dh frfFk fnukad 15-12-2016 rd 'kSf{kd@izf'k{k.k f}o"khZ; ch0Vh0lh0@f}o"khZ; mnwZ ch0Vh0lh0@fof'k"V ch0Vh0lh izf'k{k.k@Mh0,M0 ¼fo'ks"k f'k{kk½@pkj o"khZ; ch0,y0,M0 mikf/k/kkjh rFkk mRrj izns'k jkT; vFkok dsUnz ljdkj }kjk vk;ksftr d{kk 1 ls 5 gsrq v/;kid ik=rk ijh{kk lQyrkiwoZd mRrh.kZ dj pqds vH;fFkZ;ksa ls dqy 36 fjDr inkssa ij fu;qfDr gsrq vkWuykbu bZ&vkosnu i= vkef=r fd;s tkrs gSA foKkfir inksa ds izfr fjfDr;ksa dh la[;k c<+&?kV ldrh gSA vkWuykbu bZ&vkosnu i= dk izk:i] vko';d fn'kk funsZ'k ,oa tuinokn fjfDr;ksa dk fooj.k osclkbZV http://upbasiceduparishad.gov.in ij fnukad 28-12-2016 vijkUg ls fnukad 09-01-2017 lk;a 5 cts rd miyC/k jgsxkA rnksijkUr vH;FkhZ 17-01-2017 ls 19-01-2017 lk;a 5 cts rd Hkjs x;s vkWuykbu vkosnu i= esa =qfV lq/kkj dj ldsxsaA ifj"knh; izkFkfed fo|ky;ksa esa lgk;d v/;kid ds inksa ij p;u@fu;qfDr v/;kid lsok fu;ekoyh&1981 ¼v|ru ;Fkk la'kksf/kr½ ds vuqlkj dh tk;sxhA ifj"knh; izkFkfed fo|ky;ksa esa lgk;d v/;kid in ij bPNqd vgZ vH;fFkZ;ksa }kjk loZ izFke fufnZ"V osclkbV ij fu/kkZfjr izfdz;kuqlkj jftLVªs'ku dj okafNr izfof"V;ksa dks iw.kZ djuk gksxkA jftLVªs'ku ds mijkUr bZ&pkyku ls fdlh Hkh tuin ds fdlh Hkh Hkjrh; LVsV cSad dh 'kk[kk esa lfpo] m0iz0 csfld f'k{kk ifj"kn ds in uke ij fu/kkZfjr 'kqYd tek dj bZ&pkyku vkbZ&Mh@tuZy ¼Journal½ uEcj izkIr djuk gksxkA blds vfrfjDr vH;FkhZ lHkh cSadks ds ATM Cum Debit Cards/Cradits Cards rFkk SBI Internet Banking }kjk Hkh vkosnu 'kqYd dk Hkqxrku dj ldrs gSA rnksijkur vH;FkhZ }kjk iqu% fufnZ"V osclkbV ij bZ&pkyku vkbZ&Mh@tuZy ¼Journal½ uEcj Hkjrs gq, vkWuykbu vkosnu i= dk fizUV ysuk vfuok;Z gksxkA vH;FkhZ }kjk dkmfUlfyax ds le; jftLVªs'ku bZ&pkyku jlhn] rFkk vkosnu i= dk fizUV vkmV izLrqr djuk vko';d gksxkA ¼t;dju ;kno½ ftyk csfld f'k{kk vf/kdkjh okjk.klh"
40. Before us, the grounds of challenge is two-fold, firstly, whether the preparation of merit list district-wise is arbitrary and violative of Articles 14, 15, 16 and 21 of the Constitution of India and also contrary to the provisions of 1981 Rules. Secondly, whether causing discrimination on the basis of domicile or place of residence in the selection process is violative of Articles 14 and 16 of the Constitution of India.
41. Before us, it was argued by the State as well as by the private respondents that the petitioners, who have participated and remained unsuccessful cannot challenge the impugned advertisement and the selection process by filing the present bunch of writ petitions, the Government has taken a policy decision of recruitment and appointment of such persons, who possessed the qualifications as mentioned in the advertisement, which cannot be open to challenge being the policy decision, the successful candidates have not been impleaded and the writ petitions are liable to be thrown away on this ground alone and lastly that the State Government has also taken policy decision by issuing the Government order dated 15.12.2016 and the advertisement is in discharge of the State obligation under Article 45 the Constitution and cannot be challenged.
42. The petitioners are aggrieved by the Government order dated 15.12.2016 issued by the State Government by which the merit list was to be prepared at the district level. It is an admitted fact that the petitioners have appeared in the examination knowing the guidelines/ conditions as mentioned in the Government Order and the advertisement and after being unsuccessful, they approached this Court challenging the same.
43. Before analysis of legal issues involved, it is necessary to first address the preliminary issue. The maintainability of the very challenge by the respondents has been questioned on the ground that petitioners having partaken in the selection process cannot later challenge it due to mere failure in the selection. It is well settled that the principle of estoppel prevents a candidates from challenging the selection process after having failed in it as reiterated by the Hon'ble Supreme Court in plethora of judgments.
44. Hon'ble Supreme Court in the case of Union of India and others. v. N. Chandra Shekharan and others. 1998 (3) SCC 594, has held as under:
"It is not in dispute that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. Therefore, they cannot turn around and contend later when they found they were not selected by challenging that procedure and contending that the marks prescribed for interview and confidential reports are disproportionately high and that the authorities cannot fix a minimum to be secured either at interview or in the assessment or confidential report."
45. In the case of Inder Sen Mittal v. Housing Board, Haryana and others; 2002 (3) SCC 175, the Hon'ble Supreme Court has also held as follows :
"In case the ground of attack flows from agreement between the parties which would undoubtedly be a lawful agreement, and the same is raised at the initial stage, the Court may set it right at the initial stage or even subsequently in case the party objecting has not participated in the proceedings or participated under protest. But if a party acquiesced to the invalidity by his conduct by participating in the proceedings and taking a chance therein cannot be allowed to turn round after the award goes against him and is estopped from challenging validity or otherwise of reference, arbitration proceedings and/or award inasmuch as right of such a party to take objection is defeated.
Where ground is based upon breach of mandatory provision of law, a party cannot be estopped from raising the same in his objection to the award even after he participated in the arbitration proceedings in view of the well-settled maxim that there is no estoppel against statute.
If, however, basis for ground of attack is violation of such a provision of law which is not mandatory but directory and raised at the initial stage, the illegality, in appropriate case, may be set right, but in such an eventuality if a party participated in the proceedings without any protest, he would be precluded from raising the point in the objection after making of the award."
46. In the case of Manish Kumar Sahi v. State of Bihar and others; (2010) 12 SCC 576, in para 16, Hon'ble Supreme Court has held as under:
"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal v. State of J&K [(1995) 3 SCC 486 : 1995 SCC (L&S) 712 : (1995) 29 ATC 603] , Marripati Nagaraja v. Govt. of A.P. [(2007) 11 SCC 522 : (2008) 1 SCC (L&S) 68] , Dhananjay Malik v. State of Uttaranchal [(2008) 4 SCC 171 : (2008) 1 SCC (L&S) 1005] , Amlan Jyoti Borooah v. State of Assam [(2009) 3 SCC 227 : (2009) 1 SCC (L&S) 627] and K.A. Nagamani v. Indian Airlines [(2009) 5 SCC 515 : (2009) 2 SCC (L&S) 57] ."
47. In the instant case, it is clear that petitioners have impugned the legislation/ Scheme of the Government in question after having participated in the recruitment process. In D. Sarojakumari v. K. Helen Thilakom and others; (2017) 9 SCC 478, Hon'ble Supreme Court has held as under:
"4. The main ground urged on behalf of the appellant is that Respondent 1 having taken part in the selection process could not be permitted to challenge the same after she was unsuccessful in getting selected. The law is well settled that once a person takes part in the process of selection and is not found fit for appointment, the said person is estopped from challenging the process of selection.
5. In G. Sarana v. University of Lucknow [G. Sarana v. University of Lucknow, (1976) 3 SCC 585 : 1976 SCC (L&S) 474] , the petitioner after appearing in the interview for the post of Professor and having not been selected pleaded that the experts were biased. This Court did not permit the petitioner to raise this issue and held as follows: (SCC p. 591, para 15) "15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee."
6. In Madan Lal v. State of J&K [Madan Lal v. State of J&K, (1995) 3 SCC 486 : 1995 SCC (L&S) 712] , the petitioner laid challenge to the manner and method of conducting viva voce test after they had appeared in the same and were unsuccessful. This Court held as follows: (SCC p. 493, para 9) "9. ... Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted."
48. In the latest judgment rendered in the case of Dr. (Major) Meeta Sahi Vs. State of Bihar and others; 2019 SCC Online SC 1632, Hon'ble Supreme Court has held as under:
"19. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process."
49. However, this exception does not apply in the present case because no illegality or discrimination has been established by the petitioning candidates.
50. The cadre of Assistant Teachers in primary schools run by the Board, as mentioned in 1981 Rules, is a local cadre. The training in District Institute of Educational Training is a district-based training of teachers education at district level. It is to feed and provide teachers duly trained for primary education in its localities. The very purpose of District Institute is to establish an institute at District level so that sufficient number of local teachers are available to provide primary education in the vicinity. The very purpose is to localise the primary education and the area is also localised. After training, in case any candidate applies for appointment in any junior basic school, the application is to be moved to the District Basic Education Officer of the district and the selection committee is also comprised of the District Level education officers. The very purpose of the present special training is to have primary teachers of the District available to teach in primary schools in far remote areas of the district. Moreover, all the educational experts are uniformly of the opinion that pupils should begin their schooling through the medium of their mother tongue and there is a great reason of thinking behind this. Where the tender minds of the children are subjected to an alien medium, the learning process becomes unnatural and inflicts a cruel strain on the children, which makes the entire transaction mechanical. Besides, the educational process becomes artificial and torturous. The basic knowledge can easily be garnered through the mother tongue. It should be the endeavour of every State to promote the regional language of that State and that is why the Government Order provided for a district level selection of the candidates for being given training in special B.T.C. In view of above facts and prevailing situations, the State Government's decision to make selection on the basis of merit list prepared at the district level is justified.
51. In the instant case, the petitioners have challenged the vires of Rule 14(1)(a) of 1981 Rules and the guidelines issued on 26.12.2016 after having participated in the recruitment process. It is settled law that petitioners having taken part in the selection process and being found lower in merit to the selected candidates could not at this stage be permitted to turn around and that once a person takes part in the process of selection and is not found fit for appointment, the said person is estopped from challenging the process of selection. Therefore, having failed to challenge the legislation prior to taking part in the selection process, the present petition must fail.
52. In the instant case, an issue was also raised that whether the petitioners were placed in a disadvantageous position, as compared to other candidates, simply because the qualifying/ cut-off marks may be different in different districts of the State.
53. In fact, in Balbir Kaur v. U.P. Secondary Education Services Selection Board, (2008) 12 SCC 1, the Hon'ble Supreme Court held that:
"there is no warrant for accepting as a general proposition that a region wise or district wise selection is per se violative of equality clause enshrined in Articles 14 and 16 of the Constitution. It would be discriminatory only when the person, who alleges discrimination, demonstrates certain appreciable disadvantages, qua similarly situated persons, which he would not have faced but for the impugned State action. Therefore, the onus was on the writ petitioners to show by cogent material that by resorting to region wise selection, they were placed in some disadvantageous position as compared to their counterparts or that in this process merit was the casualty."
54. In the present case, it is understood that the petitioners have failed to discharge this onus since the region/ district wise selection process is open to all candidates. Therefore, it cannot be said that the petitioners were placed in a disadvantageous position, as compared to other candidates, simply because the qualifying/cut-off marks may be different in different districts of the State.
55. Now we have to examine that whether the Scheme of the Government for selection of the Assistant Teachers in the State on merit list prepared at District Level and not at State Level is violative of Articles 14, 15, 16 and 21-A of the Constitution of India.
56. To adjudicate the issue, it is necessary to examine the entire scheme floated by the Government of U.P.
57. The Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 was framed in exercise of the powers conferred under sub-section (1) of Section 19 of the Uttar Pradesh Basic Education Act, 1972. The relevant provisions of the said 1981 Rules are given below:
"2. Definitions - (1) In these rules unless the context otherwise requires:
(a) ...
(b) ...
(c) ...
(d) 'Board' means the Uttar Pradesh Board of Basic Education constituted under Section 3 of the Act;
(e) ...
(f) 'District Basic Education Officer and 'Additional District Basic Education Officer (Women)' means the officer appointed by the State Government as such for a particular district;
(2) The strength of the cadre of the teaching staff pertaining to a local area and the number of the posts in the cadre shall be such as may be determined by the Board from time to time with the previous approval of the State Government:
Provided that the appointing authority may leave unfilled or the Board may hold in abeyance any post or class of posts without thereby entitling any person to compensation:
Provided further that the Board may, with the previous approval of the State Government, create from time to time such number of temporary posts as it may deem fit.
14. Determination of vacancies and preparation of list.-(1) In respect of appointment, by direct recruitment to the post of Mistress of Nursery Schools and Assistant Master or Assistant Mistress of Junior Basic Schools under clause (a) of Rule 5, the appointing authority shall determine the number of vacancies as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes; Other Backward Classes and other categories under Rule 9 and notify the vacancies in at least two leading news papers having adequate circulation in the State as well as in the concerned district inviting application from candidates possessing prescribed training qualification from the district concerned and who have passed Teacher eligibility test, conducted by Government of Uttar Pradesh.
(2) The appointing authority shall scrutinize the applications received in pursuance of the advertisement and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment. (3) The names of candidates in the list prepared under sub-rule (2) shall then be arranged in such manner that their names shall be placed in descending order on the basis of the marks obtained in Teacher Eligibility Test conducted by the Government of Uttar Pradesh:
Provided that if two or more candidates obtain equal marks, the can didates senior in age shall be placed higher.
(4) No person shall be eligible for appointment unless his or her name is included in the list prepared under sub-rule (2).
(5) The list prepared under sub-rule (2) and arranged in accordance with sub rule (3) shall be forwarded by the appointing authority to the Selection Committee.)
17. Procedure for direct recruitment to a post for teaching a langauge.-(1) The Selection Committee shall require the candidates mentioned in the lists referred to in sub-rule (6) of Rule 14 and sub-rule (2) of Rule 15, as the case may be, to appear at a written examination which shall be of one hundred marks.
(2) In the written examination under sub-rule (1). the candidates will be required to write an essay on a current topic in the language in respect of which the post is to be filled. A candidate who obtained less than fifty marks in the written examination shall be disqualified for appointment.
(3) The marks obtained by a candidate, who is not disqualified under sub-rule (2) in the written examination shall be added to his quality points awarded in accordance with the Appendix.
(4) The Selection Committee shall prepare a list of candidates, qualified in the written examination under Sub-rule (2) in such manner that the candidates who have passed the required training course carlier in point of time shall be placed higher than those who have passed the said training course later and the candidates who have passed the training course in a particular year shall be arranged in accordance with the aggregate of marks obtained by the said candidates in the written examination and quality points. If two or more such candidates obtain equal marks, the candidate senior in age shall be placed higher in the list. The number of names in the list shall be larger (but not larger by more than twenty-five per cent) than the number of vacancies. The Selection Committee shall forward the list to the appointing authority.
(5) The list prepared under sub-rule (4) shall remain valid for one year from the date of its preparation.
'[17-A. Procedure for direct recruitment to a post for teaching sub-objects other than language.-(1) The Selection Committee shall consider the candidates for selection on the basis of the list referred to in sub-rule (6) of Rule 14 or sub-rule (2) of Rule 15, as the case may be, and prepare a list of selected candidates in the order in which their names appear in the said list. If two or more candidates have equal quality points, the name of the candidate who is senior in age shall be placed higher in the list. The Selection Committee shall forward the list to the appointing authority.
(2) The list prepared under sub-rule (1) shall remain valid for one year from the date of its preparation.
(3) Where the number of selected candidates is more than the number of vacancies and all the selected candidates do not get appointments under sub-rule (1) of Rule 19, the District Basic Education Officer shall forward the list of such selected candidates as have not been able to get appointment due to non-availability of vacancies, along with their applications and other particulars, to the Regional Assistant Director of Education (Basic), for the purposes of utilising the list in a district within his region where sufficient number of selected candidates are not available to fill the vacancies in such district.
(4) On receiving the list referred in sub-rule (3), the Regional Assistant Director of Education (Basic), shall forward the list along with the applications and other particulars of the selected candidates, to a District Basic Education Officer within his region, where sufficient number of candidates are not available to fill the vacancies. In so forwarding the list, the Regional Assistant Director of Education (Basic) shall take into account the options given by selected candidates in regard to his posting in districts.
(5) On receiving the list referred to in sub-rule (4), the District Basic Education Officer shall place the list along with applications and other particulars of the candidates, before the Selection Committee constituted under Rule 16.
(6) The Selection Committee shall consider the candidates mentioned in the list referred to in sub-rule (4) and prepare a list of selected candidates in accordance with sub-rule (1) and include their names at the bottom in the list prepared under sub-rule (1) and forward the entire list to the appointing authority.
(7) Where the list forwarded to the Regional Assistant Director of Education (Basic) under sub-rule (3) cannot be utilized in his region due lo non-availability of vacancies, the Regional Assistant Director of Education (Basic) shall forward the list to the Secretary of the Board who shall thereafter forward the list to a District Basic Education Officer in whose district sufficient number of candidates are not available to fill the vacancies. In so forwarding the list, the Secretary of the Board shall take into account the options given by selected candidates in regard to their postings in districts.
(8) On receiving the list referred to in sub-rule (7), the District Basic Education Officer shall place the list along with applications and other particulars of the candidates, before the Selection Committee constituted under Rule 16.
(9) The Selection Committee shall consider the candidates mentioned in the list referred to in sub-rule (7), and prepare a list of selected candidates in accordance with sub-rule (and include their names at the bottom in the list prepared under sub-rule (1) and forward the entire list to the appointing authority.]"
58. In exercise of the powers under sub-section (1) of Section 19 of the Uttar Pradesh Basic Education Act, 1972, the 1981 Rules was amended as The Uttar Pradesh Basic Education (Teachers) Service (Twenty Five Amendments) Rules, 2018. For ready reference, Rule 14 (1)(a) of 1981 Rules reproduced as under:
[14. Determination of vacancies and preparation of list - (1) (a) in respect of appointment, by direct recruitment to the post of Mistress of Nursery Schools and Assistant Master or Assistant Mistress of Junior Basic Schools under clause (a) of Rule 5, the appointing authority shall determine the number of vacancies as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes and other categories under Rule 9 and in at least two newspapers having adequate circulation in the State as well as in the concerned district inviting applications from candidates possessing prescribed training qualification and Teacher Eligibility Test passed, conducted by the Government or by the Government of India and passed Assistant Teacher Recruitment Examination conducted by the Government.
(b) The Government may from time to time decide to appoint the candidates, who are graduates along with B.Ed./ B.Ed. (Special Education)/ D.Ed. (Special Education) and who have also passed Teacher Eligibility Test conducted by the Government or by the Government of India, as Trainee Teachers. These candidates after appointment will have to undergo six months special training programme in elementary education recognised by National Council of Teacher Education (NCTE). The appointing authority shall determine the number of vacancies as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, and other categories under Rule 9 and advertisement would be issued in at least two leading daily news papers having adequate circulation in the State as well as in concerned district inviting applications from candidates who are graduates along with B.Ed./B.Ed. (Special Education)/ D.Ed. (Special Education) and who have also passed Teacher Eligibility Test conducted by the Government or by the Government of India.
(c) The trainee teachers, after obtaining the certificate of successful completion of six months special training in elementary education, shall be appointed as assistant teachers in junior basic schools against substantive post in regular pay-scale. The appointing authority will be duty bound to appoint the trainee teachers as assistant teachers within one month of issue of certificate of successful completion of said training.
(2) The appointing authority shall scrutinise the applications received in pursuance of the advertisement under clause (a) or clause (b) of sub-rule (1) of Rule 14 and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment.
(3)(a). The names of candidates in the list prepared under sub-rule (2) in accordance with clause (h) of sub-rule (1) of Rule 14 shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points and weightage as specified in the Appendix I:
Provided that if two or more candidates obtain equal marks, the candidate senior in age shall be placed higher:
(b) The names of candidates in the list prepared under sub-rule (2) in accordance with clause (c) of sub-rule (1) of Rule 14 shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points specified in the Appendix II:
Provided that if two or more candidates obtain equal marks, the candidate senior in age. shall be placed higher.
(c) The names of candidates in the list prepared in accordance with clause (d) of sub-rule (1) of Rule 14 for appointment as assistant teacher shall be same as the list prepared under clause (b) of sub-rule (3) of Rule 14 unless the candidate under the said list is unable to successfully complete the six months special training course in elementary education in his first attempt. If the candidate successfully completes the six months special training in his second and final attempt, the candidate's name shall be placed under the names of all those candidates who have completed the said six months special training in their first attempt.
(4) No person shall be eligible for appointment unless his or her name is included in the list prepared under sub-rule (2).
(5) The list prepared under sub-rule (2) and arranged in accordance with clauses (a) and (b) of sub-rule (3) of Rule 14 shall be forwarded by the appointing authority to the Selection Committee.]"
59. From perusal of entire Scheme, it is apparent that the Scheme is to be implemented by taking care of the basic units of local areas with a view to teach the children in their mother tongue for developing their personalities and confidence. The Scheme is having a very wide amplitude with an aim and object to create an interest of education in the children below 14 years of age and to achieve the goal of education in the State of U.P. as per the Right to Education Act at foundation level. It is also found necessary in the Scheme that such an ambitious project to educate all the children even in most backward areas of the State of U.P., for implementation of such scheme, it is necessary that the children of such local areas should be taught in their own dialect and preferably by their own people. The Scheme requires knowledge of the area concerned from various aspects including its social, economical, local, cultural and specific regional dialect.
60. The same issue was already adjudicated by a Full Bench of Rajasthan High Court in the case of Rajkumar and others vs. Stae of Rajasthan and others; AIR 2016 Rajasthan 176. Paras 26 to 32 reads as under:
"26. In Chiranji Lal v. Union of India (AIR 1951 SC 41), Hon'ble Supreme Court held that mere differentiation or inequality of treatment does not per se amount to discrimination with the inhabitation of the equal protection clause. To attract the operation of the clause, it is necessary to show that the selection or differentiation is unreasonable or arbitrary, that it does not rest on any rational basis having regard to the object which the Legislature has in view. In the same case it was observed that the Court should not adopt a doctrinaire approach which might choke all beneficial legislation.
27. The U.S. Supreme Court in Arkansas Gas Co. v. Railroad Commission (261 US 379, while discussing the concept of equality, held that mere production of inequality is not enough to hold that equal protection has been denied. For, every selection of person for regulation produces inequality in some degree. The inequality produced, in order to encounter the challenge of the Constitution, must be "actually and palpably unreasonable and arbitrary". The governance is not a simple thing. It encounters and deals with the problems which come from persons in an infinite variety of relations. Classification is the recognition of those relations, and, in making it a wide latitude of discretion and judgment must be given.
28. As already discussed, the object of the NRHM is to provide accessible, affordable and accountable quality health service to the poorest households in the remotest rural regions. To achieve this object the thrust of the mission is on establishing a fully functional community owned, decentralised health delivery system with inter sectoral conversance at all levels to ensure simultaneous action on a wide range of determinants of health like water, sanitation, education, nutrition, social and general quality. The scheme is having multi tasks and for that purpose local team headed by health and sanitation committee at panchayat level are to be formed. The scheme in so many words emphasise aid and assistance of local residents in its implementation and further to have their service as experts and resource persons. The scheme demands uninterrupted availability of the staff responsible to execute different programmes. It also requires setting up of planning teams and committees by local residents on habitation/village, gram panchayat, primary health centre and cluster level basis. Further pertinent to notice that the engagement of the staff in NRHM from locals is neither a concession nor a reservation, but a tactics for effective implementation of the scheme. The locals are certainly in better position to identify the specific health issues of the area concern with more effective persuasive value to bring the inhabitants of area within the fold of NRHM. The needs noticed indicate that engagement of para-medical staff by examining merit at district level is in accordance with the frame and purport of the National Rural Health Mission. It is a just and reasonable classification with intelligible differentia to achieve the objects enshrined. Accordingly, the first question referred to us is answered by holding that engagement of para medical staff with preparation of merit at District level does not violate Article 14 of the Constitution of India.
29. The second question is that whether while engaging para-medical staff in National Rural Health Mission, any reference the place of residence and or local criteria is permissible in law or not?
30. We are of the view that in light of the complete scheme of NRHM as discussed, the assistance and support of the locals in its implementation is essential and, therefore, for the purpose of engagement of staff, if preference is given on basis of the place of residence and/or local criteria among the equals, then that is not irrational or in violation of Article 14 of the Constitution of India. The engagement of staff under National Rural Health Mission at district level and by providing preference to the locals, equals have not been treated differently without any justifiable reasons. As such there is no violation of Articles 14 and 16 of the Constitution of India. The second question referred is also answered accordingly.
31. The judgments given by learned single Bench in Dema Ram (supra) (SB Civil Writ Petition No.1120/2008), Manoj Kumar Sharma (Supra) (SB Civil Writ Petition No.4298/ 2008), Santh Lal Yadav (Supra) (SB Civil Writ Petition No.741/2008) and Division Bench in Dinesh Kumar (Supra) (DB Civil Special Appeal No.615/2008) do not lay down correct law.
32. Let the writ petitions SB Civil Writ Petition Nos.6207/ 2009, 6632/2009, 6770/2009, 6943/2009, 6978/ 2009, 9163 /2010 and 7995/2011 be listed before single Bench and DB Civil Special Appeals (Writ) No.113/2013, 114/2013 and 115/2013 be listed before Division Bench for their disposal on merits by keeping in mind the answers to the questions referred to the Larger Bench."
61. In the case of Kumari Shrilekha Vidyarthi and Others v. State of U.P. and Others, (1991) 1 SCC 212, Hon'ble Apex Court has held that "the question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness" and that: "it is for the person alleging arbitrariness who has to prove it. This can be done by showing in the first instance that the impugned State action is uninformed by reason inasmuch as there is no discernible principle on which it is based or it is contrary to the prescribed mode of exercise of the power or is unreasonable. If this is shown, then the burden is shifted to the State to repel the attack by disclosing the material and reasons which led to the action being taken in order to show that it was an informed decision which was reasonable.
62. Being a big State like Uttar Pradesh, several local dialects are in use in different zones and areas of the State. There are some important dialects which are spoken in the State of U.P. in different zones/ districts or local areas like Awadhi, Braj, Bundeli, Bagheli, Kannauji, Khadi Boli and Bhojpuri.
63. We have also considered the reasons behind the impugned legislation and Scheme. A number of educational experts are uniformly of the opinion that children should begin their schooling through the medium of their mother tongue. There is great reason and justice behind this. Where the tender minds of children are subjected to an alien medium, the learning process becomes artificial. It inflicts a cruel strain on the children which makes the entire transaction mechanical. The basic knowledge can easily be garnered through the mother tongue. It is a well settled law that Article 14 of the Constitution forbids class legislation but it does not forbids reasonable classification. The applications for appointment of Assistant Teachers in basic schools run and managed by the U.P. Basic Shiksha Parishad, Allahabad are invited at the district level because there exists separate cadre of service of teachers under the 1981 Rules for each local area. The term local area as defined in Rule 2(i) means the area over which a local body exercises jurisdiction.
64. In view of the aforesaid discussions, we are of the view that the 1981 Rules contains a provision that a candidate who has obtained training from a district will be given preference in selection and appointment on the post of Assistant Teacher in the district concerned. The said provision has got a purpose and object i.e. the children are taught by a person who is very well familiar with the local habitat and also speaks local dialect. Further the first preference for appointment is given to the candidates who have undergone the training qualification from the district concerned because such candidates are already acquainted with the demographic conditions, local dialect and traditions from where the children who are to be taught come from. The knowledge and understanding of local dialect is essential for a teacher in the rural areas for a better classroom transaction with small children and their parents. The preference in appointment of a candidate who completed his training from a particular district is justified for the reason that if a candidate who has completed his training from Mathura where Braj Bhasha is spoken, is appointed in Gorakhpur where Bhojpuri is spoken will face difficulty in communicating the small children of that area and also their parents and due to lack of communication between the teacher and the child including parents, the quality of education will certainly be affected and, therefore, the provisions of preference is not at all violative of Article 14 and 16 of the Constitution of India.
65. In the present case, the State has shown that the purpose of a region/ district wise recruitment is to ensure that the teachers in local primary schools are attuned to the local requirements, which, needless to say, differs from district to district and region to region in a vast state like Uttar Pradesh. Moreover, to reiterate, the petitioners cannot contest that any discrimination has been meted out to them, since the region/ district wise selection process was open to all candidates. Therefore, the State has discharged its burden by demonstrating that there were cogent reasons for prescribing region/ district wise recruitment, which is open to all candidates, and that no discrimination/ arbitrariness resulted from prescribing such a process.
66. In view of the discussions made above, the preparation of merit list at District Level is not against the provisions of Articles 14, 15, 16 and 21-A of the Constitution of India and the engagement of the Assistant Teachers (Primary) on the basis of domicile or place of residence in the selection process is not violative of Articles 14 and 16 Constitution of India.
67. Accordingly, all the writ petitions being devoid of merit are hereby dismissed. No order as to costs.
Order Date:13/01/2020
akverma
(Chandra Dhari Singh,J) (Govind Mathur,CJ)
The judgment and order has been pronounced under Chapter VII Rule 1(2) of Allahabad High Court Rules, 1952.
Dated:13.01.2020 (Chandra Dhari Singh, J)