Jharkhand High Court
Prashant Vidyarthy And Suman Kr. Singh vs State Of Jharkhand And Ors. on 27 November, 2002
Bench: S.J. Mukhopadhaya, M.Y. Eqbal, Lakshman Uraon
JUDGMENT V.K. Gupta, C.J.
1. What perhaps might have started in the original petition as a non-issue (the order passed on 3rd March, 1982 by Bihar Government) ultimately turned out to be an issue worthy of examination on the basis of two Notifications issued by the Government of Jharkhand on 8th August, 2002 and 19th August, 2002, these both having been issued during the pendency of this writ application.
2. The present writ application by way of a Public Interest Litigation (PIL) has been filed seeking the following relief :--
"For the issuance of an appropriate writ(s)/order(s) direction(s) or a writ in the nature of certiorari quashing the letter dated 15.3.1982 issued by the Secretary to the Government of Bihar, Patna, Department of Labour & Employment which has been adopted by the Government of Jharkhand vide the notification dated 22.9.01 by declaring it ultra vires Articles 14 and 16 and provisions of the Constitution of India."
3. Since the writ application as originally filed on 22nd July, 2002, sought to challenge the Bihar Government Notification dated 3rd March, 1982, as adopted by the Government of Jharkhand vide Notification dated 22nd September, 2001, it shall be advantageous at the very outset to quote hereinbelow verbatim these two Notifications. These read as under :--
Bihar Government communication dated 3rd March, 1982 "Government, of Bihar Labour & Employment Deptt.
Directorate, Employment and Training (Employment), Bihar New Secretariat, Patna 15 Patna, 15 dated 3rd March, 1982.
Letter No. 3/Local/Ni/5014/81-806 From : Shri Mukhtyar Singh, Joint Secretary to Government.
To Secretary to Chief Minister, Secretary to Chief Secretary, Shri Karpoori Thakur, Leader of Opposition, Sub : Regarding fixing the definition of 'local persons'.
Sir, With respect to the aforesaid subject, a meeting under the Chairmanship of the Chief Minister was called on 28.4.1981 to decide about the issue relating to the definition of 'local persons'. In the aforesaid meeting, after deliberations and consultations with representatives of different political parties, and the representatives of the recognized Labour Organizations, it has been decided that in the matter of employment, the nodal (base) of the definition of 'local persons' should be a 'district'. In so far as the district, therefore, is concerned, only such persons be considered to come within the definition of 'local persons' whose or whose forefathers' name appear in the record of rights linked with the last survey conducted for this purpose.
It is accordingly requested that in the light of this decision of the Government in the matter of employment, local persons be accorded preferential treatment.
Sd/- Mukhtyar Singh Joint Secretary to Government of Bihar, Patna.
Notification dated 22nd September, 2001 of the Government of Jharkhand Department of Personnel, Administrative Reforms and Rajbhasha.
Notification.
Dated 22nd September, 2001 No. 5/vivid/09/2001-3389. In exercise of the powers conferred upon him under Section 85 of the Bihar Re-organization Act, 2000, the Governor of Jharkhand adopts the Government of Bihar Notification dated 3rd March, 1982 with the modification that in the said Notification, the word "Jharkhand" shall stand substituted for the word 'Bihar' wherever it is occurring.
Based on the aforesaid Bihar Notification, accordingly, in Jharkhand State "local persons" shall be defined accordingly.
By order of the Governor of Jharkhand, Sd/- M.P. Mishra, Joint Secretary to Government."
(the text of both the aforesaid Notifications as have been made available to us, being in Hindi, we have attempted their English translation ourselves. The English translation omits unnecessary details.)
4. As perhaps would be clearly evident, the Notification dated 3rd March, 1982, issued by the Government of Bihar (Bihar Notification, for short) and the Notification dated 22nd September, 2001 issued by the Government of Jharkhand adopting the Bihar Notification with modification (22nd September, 2001 Notification, for short), perhaps, in the context of the subject matter of this petition, as it ultimately turned out, did not come out to be purposeful or meaningful and had no apparent and manifest relevance with any issue of controversy or dispute involved in this petition. We are saying so because even though in the petition, the petitioner complained of discrimination, on the touch-stone of Articles 14 and 16 of the Constitution of India by alleging that 'local residents' were being preferred at the cost of the interests of the "outsiders" who are being singled out for hostile discrimination. Bihar Notification on a careful perusal, clearly indicated that it merely tended to loosely define a 'local person', that too in an abstract form and even this definition of a 'local person' (in abstract) was not by way of any Government order or a Government Notification as such duly issued under law, but through a mere communication, recording that in a meeting of Chief Minister with certain individuals, an informal decision was taken to define a 'local resident' in a particular manner. Since, therefore, Bihar Notification by itself did not either create any right, visa-vis either the employment, any property or any other subject matter which could be relevant for creation or violation of any right, 22nd September, 2001 Notification by merely adopting Bihar Notification also surely could not be called as having either created any right or for that matter violating any right conferred upon anyone. It is in the aforesaid background that we now look at the subsequent developments which occurred during the pendency of this petition.
5. In order to get a clear insight to the aforesaid background relating to the Bihar Notification and 22nd September, 2001 Notification and also to link the purpose and spirit of the subsequent Notifications, we reproduce hereinbelow the following averments in the counter affidavit filed by the Secretary, Deptt. of Personnel, Administrative Reforms and Rajbhasna, Government of Jharkhand on behalf of the State-respondents :--
"(iv) That the petitioner has referred to Government of Bihar, letter dated 15.5.1982 which is not correct. In fact, the Government of Jharkhand, has adopted letter No. 806 dated 3rd March, 2001, vide Notification No. 3389 dated 22.9.2001.
(v) That to the best of the knowledge of the deponent the said circular of Government of Bihar was always in force in Bihar and there is nothing contrary to show that the letter was ever modified or withdrawn.
(vi) That the said circular was in any case in force in Jharkhand as per the provisions of Section 84 of the Bihar Reorganization Act, 2000. However, the State Government adopted the said Circular and issued Notification on 22.9.2001 as per the provisions of Section 85 of Bihar Re-organization Act, 2000 by only substituting the word 'Bihar' with 'Jharkhand'.
(vii) That the Government of Jharkhand neither framed any new policy nor changed the policy already in force in Bihar and now in Jharkhand and it is also not correct that the Government of Jharkhand framed any policy of 'Domicile'.
(viii) That the said Government of Bihar letter defines 'Local Person' and the 'Local Person' with respect to a district will be the whose own name or whose ancestor's name figured as landowner or owner of a homestead in the last survey Record of Rights with respect to that district. This definition of 'Local Person' therefore cannot be said to be truly synonymous with the definition of 'domicile' of a person in its normal legal factual sense.
(ix) That the letter further gives only priority in employment to the such defined 'Local Person' and does not preclude any other person who is not covered under this definition to apply and participate in appointment process.
(x) That it was subsequently felt that many persons who are living in this State from many generations may not find entries of their own or their ancestors, in the last Record of Right for various reasons like landlessness, the area of residence remaining unsurveyed etc. Therefore, in the interest of such persons the scope of definition of 'local person' required to be expanded.
(xi) That an All Party Meeting was, therefore, convened by the Chief Minister on 1.8.2002 to arrive at a consensus. Barring a few representative of political parties present in the meeting, next of the other representatives present agreed to partially modify the policy but also indicated that care should be taken to ensure that the only those persons should receive benefits of preference in employment who lived in Jharkhand since generations.
(xii) Under the above circumstances, after due deliberation the Government of Jharkhand, retaining the definition of 'local person' who are to be given preference in employment vide Notification No. 5/Vividh-09/2001-3389 dated 22.9.2001, has decided to further extend the same for following categories of persons vide Resolution dated 8th August, 2002."
6. As would be thus, evident, it was during the pendency of this petition that the Chief Minister of Jharkhand convened an all- party meeting on 1st August, 2002 to arrive at a consensus with respect to the definition of a 'local person' and that based upon the deliberations in this meeting, the Government of Jharkhand, while 'retaining' the definition of 'local person' as originally made, decided to 'further extend the same' vide resolution (or it is notification) dated 8th August, 2002. The salient features of the Notification dated 8th August, 2002 have been explained in the aforesaid affidavit of the Secretary, Department of Personnel in the following manner :--
"Such persons who himself or his ancestors are not mentioned in the last survey due to various reasons such as, being landless, the area being urban and unsurveyed, but who are living from many generations in Jharkhand, the local person certificate can be issued by competent authority after due enquiry on the following grounds :--
(i) If the applicant lives in rural area and produces written certificates of 5 such persons of his revenue village whose own name or the names of their ancestors of the relevant district/village are entered in last Survey Records of Rights to the effect that the applicant lived in the village since generations.
(ii) In many cases, the last Survey Records of Rights wee not prepared for some town urban areas, but surely the municipal/local bodies records of the said town still existed when the Record of Right were prepared for the rest of the district. In such cases the applicant will have to produce written certificate of 5 such persons of the said town/urban area in whose names or their ancestors name land, homestead etc. are recorded in the then records of such municipal/local bodies for the period cor-respopding to the last Survey Records of Rights. Such 5 persons will also have to certify in writing that the applicant is living in the said town/urban area from generation to generation.
(iii) For employment 'local person' certificate can be issued only to such applicants who are not covered by Sthaniya Niwasi/Moolwasi/Adhiwasi/ Sthai (permanent) Niwasi certificate from other States (other than Jharkhand).
(iv) It was also decided that preference in employment under State Government for district level Class III and IV posts for which the appointing authorities are district level officers will be given to such "local person" who belongs to the district for which the vacancy existed."
7. The matter did not rest there. It was on 20th August, 2002 when the hearing of these cases had started before this Bench, that Mr. P.P. Rao, learned senior counsel appearing for the State of Jharkhand produced before the Court a copy of Notification No. 5/vivid-09/2001 Ka-4737 dated 19th August, 2002, whereby the Notification dated 8th August, 2002, was also amended. We shall deal with the amendments as incorporated in the Notification dated 19th August, 2002 and their relevance a little later.
8. .What, therefore, emerged during the course of hearing of this case on 20th August, 2002 and 21st August, 2002 was that the Government of Jharkhand actually came out with two Notifications; one dated 8th August, 2002 and the other dated 19th August, 2002, whereby inter alia a definite meaning was assigned to the definition of a 'local person', perhaps to some extent distinct from the meaning as originally assigned in the Bihar Notification and after explaining the scope of the definition of 'local person', to prescribe the procedure for obtaining a certificate of being such a 'local person' as also the Authority competent to grant such certificate and then to lay down that local persons in the matter of employment in Class III and Class IV posts at the district level, the divisional level and the State level would be given preference, "all other things being equal". Because the aforesaid two Notifications, therefore, in effect and substance superseded the Notification dated 22nd September, 2001, thus, also setting at naught the Bihar Notification, the petitioner filed an application for amendment of the writ application seeking leave of this Court to challenge the aforesaid two Notifications, and rightly so. Vide our order dated 21st August, 2002, we allowed the aforesaid Amendment Application incorporating the challenges to the aforesaid two Notifications and directed that the amendments as prayed for would stand incorporated in the main writ application.
9. It is in the aforesaid background that we proceed to examine the issues involved in this case for our consideration. But before we do so, it should be advantageous to have a look at what Article 16 of the Constitution of India has to say with respect to some vital aspects of equality of opportunity in matters of public employment. In this case we are mainly concerned with Clauses (1) to (3) of Article 16. We reproduce them as hereinbelow :--
"16. Equality of opportunity in matters of public employment.--(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment........"
10. Clause (2) of Article 16 clearly lays down that no citizen, only on grounds, inter alia, of residence etc. shall be ineligible for, or discriminated against, in respect of any employment or office under the State. Clause (3) of Article 16 then stipulates that it shall be open for the Parliament to make any law prescribing in regard to a class or classes of employment or appointment to an office any requirement as to residence within a State prior to the event of such employment or appointment taking place.
11. It is the admitted case of the parties before us that with respect to the issues involved in this petition or the subject matter of this petition, the Parliament has not enacted any law and that we are dealing only with the executive orders issued by the Government of Jharkhand and, therefore, in the absence of any enactment passed by the Parliament in the exercise of its power under Clause (3) of Article 16, we have to examine the constitutional validity and the legality of the aforesaid two Government Notifications on the touch-stone of Clauses (1) and (2) of Article 16. The question, therefore, which would arise for our consideration in this petition are :--
1. Whether constitutionally it is permissible for the State, in the exercise of its executive power, to provide for giving preferential treatment to "local residents"? In other words can the concept or requirement of "local residence" only be made the basis of giving preferential treatment in the matter of employment or appointments in public offices?;
(2) Does the knowledge of local custom and conditions and local language, as has now been incorporated in the two Notifications dated 8th August, 2002, and 19th August, 2002, in addition to the requirement of 'local residence' clothe these two Notifications with constitutional validity?:
(3) Even if the first question is answered in the negative (as against the State) and the second question is answered in the affirmative (in favour of the State), in other words, the impugned Notifications are held to be constitutionally valid to the extent of the 'local residence' requirement and the knowledge of local conditions etc. both being valid or the latter alone being valid, does the provision with regard to the definition of 'local residence' not suffer from the vice of arbitrariness, unreasonableness, irrationality and subjectivity, especially in view of the conditions incorporated in the impugned Notifications relating to two important aspects, namely : (a) that only such persons can be termed as 'locals' whose names or whose fore-fathers' name stood entered in the Record of Rights based on the last surveys conduct; and (b) that, if for some reason the names are not entered in the Record of Rights, the competent prescribed Authority may still issue the certificate of being a 'local resident' but on the basis of the identification by five 'local persons' whose names do appear in the Record of Rights to the effect that the applicant, to their knowledge, has been residing in the area from generation to generation? (The expression "generation to generation" on a clarification sought by us was explained by Mr. Rao, learned Sr. Counsel appearing for the State of Jharkhand, to mean at least three generations, each generation of 25-30 years).
12. In other words, what the aforesaid two aspects relating to the conditions meant is that the applicant's name or his forefather's names either should be appearing in the Record of Rights or if, for some reason it is not there, then the applicant should be certified by Five local persons to have been residing in the local area at least for the past 75-90 years. We are told at the Bar that the last survey in most of the districts conducted, based on which the Records of Rights were prepared, was in the year 1932 or thereabout. It thus on the very face of it, effectively takes away from the purview and ambit of the definition of 'local residents', such citizens of India at least who as on the date of commencement of the Constitution legitimately and by constitutionally permissible and prescribed means and methods became full-fledged citizens of India, (such as the persons who, because of the partition of the Country had to migrate from either West Pakistan (as it then was) or from East Pakistan (as it then was) to the territories forming part of the Dominion of India, as it then was, after independence). It is only if we uphold the aforesaid definition of 'local residents' that we may have to consider the legality, validity and effectiveness of the procedure prescribed, in the impugned Notifications for the issuance of the certificates by the competent Authority based on the recommendation of five persons.
13. First of all, let us deal with the most basic issue and the elementary question, touching upon the very edifice of the controversy, on the touch-stone of Article 16 of the Constitution. The basic issue and the elementary question, thus, which would fall for or consideration is whether it is permissible for the Government, by issuance of an executive order, to accord preferential treatment on the basis of 'residence' by itself be it within the State as a whole, the Divisional territories of a State as its distinct units, or the separate territory of each District. In the latest judgment of the Supreme Court in he case of Kailash Chand Sharma etc. etc. v. State of Rajasthan and others. Reported in JT 2002 (5) SC 591: 2003 (1) JCR 87 (SC), their Lordships of the Supreme Court had the following observations to make (See Paras 14 & 15):--
"Before proceeding further we should steer clear of a misconception that surfaced in the course of arguments advanced on behalf of the State and some of the parties. Based on the decisions which countenanced geographical classification for certain weighty reasons such as socio-economic backwardness of the area for the purpose of admissions, to professional colleges, it has been suggested that residence within a district or rural areas of that district could be a valid basis for classification for the purpose of public employment as well. We have no doubt that such a sweeping argument which has the overtones of parochialism is liable to be rejected on the plain terms of Article 16(2) and in the light of Article 16(3). An argument of this nature flies in the face of the peremptory language of Article 16(2) and runs counter to our constitutional ethos founded on unity and integrity of the nation. Attempts tc 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 within a state, region, district or lesser area within a district cannot be a ground to accord preferential treatment or reservation, save as provided in Article 16(3). It is not possible to compartmentalize the state into 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 Article 16.
"Article 16 which under Clause (1) guarantees equality of opporturity for all citizens in matters relating to employment or appointment to any office under the state reinforces that guarantee by prohibiting under Clause (2) discrimination on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. Be it noted that in the allied Article-Article 15, the word 'residence' is omitted from the opening clause prohibiting discrimination on specified grounds. Clause (3) and (4) of Article 16 dilutes the rigour of Clause (2) by (i) conferring an enabling power on the Parliament to make a law prescribing the residential requirement within the state in regard to a class or classes of employment or appointment to an office under the state and (ii) by enabling the state to make a provision for the reservation of appointments or posts in favour of any backward class of citizens which is not adequately represented in the services under the state. The newly introduced Clauses (4-A) and (4-B), apart from Clause (5) of Article 16 are the other provisions by which the embargo laid down in Article 16(2) in somewhat absolute terms is lifted to meet certain specific situations with a view to promote the overall objective underlying the Article. Here, we should make note of two things; firstly, discrimination only on the ground of residence (or place of birth) in so far as public employment is concerned is prohibited; secondly, Parliament is empowered to make the law prescribing residential requirement within a state or union territory, as the case may be, in relation to a class or classes of employment. That means, in the absence of parliamentary law, even the prescription of requirement as to residence within the state is a taboo. Coming to the first aspect, it must be noticed that the prohibitory mandate under Article 16(2) is not attracted if the alleged discrimination is on grounds not merely related to residence, but the factum of residence is only taken into account in addition to other relevant factors. This, in effect, is the import of the expression 'only'."
At another place in the same judgment, their Lordships had the following observations to make (See Paras 31 to 33) :--
"These observations, in our view, cannot be legitimately pressed into service for the purpose of justifying reservation or weightage in favour of rural candidates on the ground of nativity/ residence for purposes of public employment. The difference in approach in relation to Articles 15 and 16 was indicated by Bhagwati, J. in Pradeep Jain's case and we have quoted the relevant passage extensively. It was made clear in Pradeep Jain's case that in the matter of admissions to professional colleges the considerations were different, as far as public employment 'is concerned, the classification on the basis of residence in a region or locality was broadly held to be constitutionally impermissible. Moreover, the preferential treatment of rural candidates in the instant case is not on the ground that they hall from the backward region. All or most of the villages in the district or the state cannot be presumed to be backward educationally or economically. Such a claim was not accepted in Pradip Tandon's case by a three judge bench. Even in Nidamarti's case, it was held that in absence of material, certain regions cannot be dubbed as backward."
'The justifiability of the plea stemming from the premises that uplifting the rural people is an affirmative action to improve their lot can be tested from the concrete situation which confront us in the present case. We are here concerned with the selections to the posts of teachers of primary schools, the minimum qualification being SSC coupled with basic training course in teaching. Can the court proceed on the assumption that the candidates residing in the town areas with their education in the schools or colleges located in the towns or its peripheral areas stand on a higher pedestal than the candidates who had studied in the rural area schools or colleges? Is the latter comparatively a dis-advantaged and economically weaker segment when compared to the former? We do not think so. The aspirants for the teachers jobs in primary schools -be they from rural area or town area do not generally belong to affluent class. Apparently they come from lower middle class or poor background. By and large, in the pursuit of education, they suffer and share the same handicaps as their fellow citizens in rural areas. It cannot be said that the applicants from non-rural areas have access to best of the schools and colleges which the well to do class may have. Further, without any data, it is not possible to presume that the schools and colleges located in the towns-small or big and their peripheral areas are much better qualitatively, that is to say, from the point of view of teaching standards or infrastructure facilities so as to give an edge to the town candidates over the rural candidates.
We are, therefore, of the view that the first plea raised by the state which is also found in the counter-affidavit filed before the High Court (as seen from the judgment in Deepak Kumar Suthar's case) is untenable."
14. On the question of ineligibility of a citizen of India only on the ground of 'residence' etc., we may also refer to the debates of the Constituent Assembly (Vol. VII Book No. 2) The following illuminating extracts from these debates reveal the minds of the Constitution makers. We quote :--
"Sir, the object of my amendment is that every citizen of the country, where ever he might be living, should have equal opportunity of employment under the State. (Every citizen irrespective of his place of residence should be eligible for employment under the State anywhere in the country. Sir, there being only one citizenship for the whole country, it should carry with if the unfettered right and privilege of employment: in any part and in every nook and corner of the country. A citizen residing in the province of Bengal. Madras, Bombay or C.P. should be eligible for employment in the U.P. and similarly a resident of the U.P. should have the right and privilege of employment in any other province of the country, provided of course he possesses the other necessary qualification for the office. Every citizen of the country, Sir, I think, must be made to feel that he is a citizen of the country as a whole and not of any particular province where he resides. He must feel that wheresoever he goes -in the country, he shall have the same rights and privileges in the matter of employment as he has in the particular part of the country where he resides. Unfortunately, Sir, for some time past we have been observing that provincialism has been growing in this country. Every now and then we hear the cry, "Bengal for Bengalis", "Madras for Madrasis" and so on and so forth. This cry, Sir, is not in the interests of the unity of the country, or in the interests of the solidarity of the country. We find that some provincial governments have laid it down as a rule that for employment in the province the person concerned should have been living in the province for many years. One of the provinces, Sir, I am told, has laid it as a rule that they will employ only such persons as have resided within the province for fifty two years. I do not know how far it is correct. Possibly there is some exaggeration in the report that has been conveyed to me, but the fact remains that provincial governments are being pressed by the citizens of the province to lay down such rules in order to prevent residents of other provinces from seeking service under that provincial government. I can easily understand a provincial government laying it down as a rule that only those who possess adequate knowledge of the provincial language shall be eligible for employment in the province. I can also understand. Sir, a rule being laid down that a person who wants employment in the province should have adequate knowledge of local conditions."
* * * * "I submit, Sir, that this is a tendency which must be checked with a strong hand. I, therefore, submit that in the matter of employment there should be absolutely no restriction whatsoever unless it is necessary in the interests of the efficiency of the services. The unity of the country, must be preserved at all costs; the solidarity of the country must be preserved at all costs. We must do everything In our power to preserve the unity of the country, and the amendment that I have moved aims at this and is a step in this direction, and I, therefore, commend it for the acceptance of the House."
* * * * 'The object of the amendment is clear from the terms and the wording of it. In the first part of the Article, the general rule is laid down that there shall be equal opportunity for all citizens in matters of employment under the State and thereby the universality of Indian citizenship is postulated. In paragraph 2 of Article 10, it is expressed in the negative, namely that no citizen shall be ineligible for any office under the State by reason of race, caste, sex, descent, place of birth and so on. The next two clauses are in the nature of exceptions to the fundamental and the general rule that is laid down in the first part of the article. Now what the present amendment provides for is this that in case of appointments under the State for particular reasons, it may be necessary to provide that residence within the State is a necessary qualification for appointments (sic) and within the State. That is the object of this amendment and instead of leaving it to individual states to make any rule they like in regard to residence, it was felt that it would be much better if the Parliament lays down a general rule applicable to all states alike, especially having regard to the fact that in any matter concerning fundamental rights, it must be the parliament alone that has the power to legislate and not the different Units in India Under these circumstances, I propose this amendment for the consideration of the House."
* * * * "The Provincial Legislature, however, will not have the power to do so unless the House accepts the amendment which has been moved by my honourable friend Shri Alladi. All that amendment No. 82 seeks to do is this : If the clause with regard to residence has to be qualified and a residential qualification has to be imposed, it can only be done by tne Parliament, that is by the Central Legislature. The reason of this change is that there should be uniformity with regard to this qualification throughout the whole country and that this provision should not be abused by some Legislature by imposing an impossible residential qualification."
* * * * "The Honourable Dr. B.R. Ambedkar.--I did not quite follow : I shall explain the purpose of this amendment. (It is the feeling of many persons in this House that, since we have established a common citizenship throughout India, irrespective of the local jurisdiction of the provinces and the Indian States, it is only a concomitant thing that residence should not be required for holding a particular post in a particular State because, in so far as you make residence a qualification, you are really subtracting from the value of a common citizenship which we have established by this Constitution or which we propose to establish by this Constitution. Therefore, in my judgment, the argument that residence should not be a qualification to held appointments under the State is a perfectly valid and a perfectly sound argument.) At the samp time, it must be realized that you cannot allow people who are flying from ore province to another, from one State to another, as mere birds of passage without any roots, without any connection with that particular province, just to come, apply for posts and, so to say, take the plums and walk away. Therefore, some limitation is necessary. It was found, when this matter was investigated, that already today in very many provinces rules have been framed by the provincial governments prescribing a certain period of residence as a qualification for a post in that particular province. Therefore, the proposal in the amendment that, although as a general rule residence should not be a qualification, yet some exception might be made, is not quite out of the ordinary. We are merely following the practice which has been already established in the various provinces. However, what we found was that while different provinces were laying down a certain period as qualifying period for posts, the periods varied considerably. Some provinces said that a person must be actually domiciled. What that means, one does not know. Others have fixed ten years, some seven years and so on. It was, therefore, felt that while it might be desirable to fix a period as a qualifying test, that qualifying test should be uniform throughout India. Consequently, if that object is to be achieved, viz., that the qualifying residential period should be uniform, that object can be achieved only by giving the power to Parliament and not giving it to the local units, whether provinces or States. That is the underlying purpose of this amendment putting down residence as a qualification."
15. A five-Judge Bench of the Supreme Court in the case of A.V.S. Narasimha Rao and Ors. v. The State of Andhra Pradesh and Anr., reported in AIR 1970 SC 422, on the question of the legislative competence of the Parliament vis-a-vis that of the State legislature and the extent of the other powers of the State, had the following observations to make :--
"The clause thus enables Parliament to make a Law in a special case prescribing any requirement as tc residence within a State or Union Territory prior to appointment, as a condition of employment in the State or Union Territory. Under Article 35(a) this power is conferred upon Parliament but is denied to the Legislatures of the States, notwithstanding anything in the Constitution, and under (b) any law in force immediately before the commencement of the Constitution in respect of the matter shall subject to the terms thereof and subject to such adaptations that may be made under Article 373 is to continue in force until altered or repealed or amended by Parliament."
"The legislative power to create residential qualification for employment is thus exclusively conferred on Parliament. Parliament can make any law which prescribes any requirement as to residence within the State or Union Territory prior to employment or appointment to an office in that State or Union Territory. Two questions arise here. Firstly, whether Parliament, while prescribing the requirement, may prescribe the requirement of residence in a particular part of the state; and, secondly, whether Parliament can delegate this function by making a declaration and leaving the details to be filled in by the rule- making power of the Central or State Government."
16. In the case of Union of India and Ors. v. Sanjay Pant and Ors., reported in 1993 Supp (2) SCC 494, with respect to the applicability of Clauses (2) and (3) of Article 16 of the Constitution of India, their Lordships of the Supreme Court made the following observations .--
"The Tribunal allowed the O.A. on the following reasoning : In two cases viz. M. Palaniappan v. Union of India and (Smt.) Rita Kumari, the Tribunal has already held that termination of ad hoc appointee on the ground of not being a local candidate is illegal. These decisions were followed and applied in P.O. James v. Union of India, where it was held that refusal of offer regular appointment on the said ground is illegal. These cases conclude tne issue in this case. Moreover, requirement of residence in a particular territory (in this case, Union Territory of Andaman and Nicobar Islands) is opposed to Article 16(2). Under Article 16(3) onlyalaw made by the Parliament can impose such a restriction or requirement, as the case may be. Admittedly, Parliament has not made any such law. Accordingly, the O.A. was allowed and it was declared that the respondent shall be deemed to have been appointed to the post of Statistical Assistant in a regular capacity with effect from April 8, 1987 (the date on which he was offered an ad hoc appcintment) and that his seniority should be determined accordingly."
17. What, therefore, clearly emerges is that in the face cf Clauses (2) and (3) of Article 16 of the Constitution, the State Government by a mere issuance of an executive order cannot prescribe 'residence' "as a condition" for according either preferential treatment or fixing the same as an eligibilify criteria by itself, being the "only guiding factor" in the matter of public employment. On a reading of the impugned two Notifications, however, what we find is that even though originally in the Bihar Notifications as it is read alongwith 22nd September, 2001, Notification, 'residence' was the only eligibility criteria warranting the accord of preferential treatment, the respondent-State substituted those two Notifications by the present impugned two Notifications dated 8th August, 2002 and 19th August, 2002. Undoubtedly the Bihar Notification and the Notification dated 22nd September, 2001 were patently unconstitutional being ultra vires Clauses (2) and (3) of Article 16 of the Constitution of India because in these two Notifications, 'residence' alone was made the criteria for according a preferential treatment. However, in the two impugned Notifications, 'residence' by itself is not the only criteria for according preferential treatment. What the Government has done is to incorporate two criteria; one being the 'residence' and the other being the 'knowledge of local custom, language and conditions'. In our considered opinion, it is permissible for the State to prescribe these two conditions for according preferential treatment in the matter of employment in Classes III and IV posts at the District. Divisional and State levels, because we find that the prescription of these two conditions is not violative of Article 16 in any manner whatsoever. In fact, what we find is that because of the backwardness of the area and the lack of employment opportunities over the past few decades, the State has done well in prescribing that local residents who have the knowledge'of local conditions, local customs and local language should be given preference. Actually the preference would be given to such local residents (having the knowledge of local conditions, language and customs) if they, alongwith non-locals come out on equal footing. We are saying so, because the impugned Notifications clearly mention that if "all other things are equal", preference will be given to local residents. In other words, if such 'local residents' and non-local residents compete for a job, be it against a Class III post or a Class IV post and if the non-local resident secures a better merit than the local resident, undoubtedly the non-local would be appointed, but if by fixing objective and fair criteria in the selection process, the local resident and the non-local resident are both found equally placed, having equal merit, then naturally the local resident would be given preference. We find nothing illegal, unconstitutional or wrong in such approach of the State.
18. The difficulty, however, has arisen with respect to the definition of the local resident' and the procedure prescribed for identification of such 'local residents'.
19. The word 'reside' has been defined in Oxford Dictionary, to mean -"dwell permanently or for a considerable time; to have one's settled or usual abode; to live in or at a particular place." This meaning, therefore, covers not only the place where the person has his permanent residence, but also the place where the person has resided for a "considerable time."
In Black's Law Dictionary, 5th Edn., the word 'reside' has been given the following meaning :
"Live, dwell, abide, sojourn, stay, remain, lodge. To settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one's residence or domicile; specifically, to be in residence, to have an abiding place to be present as an element, to inhere as a quality to be vested as a right."
In the same Dictionary, the word 'residence' has been defined as under :--
"Personal presence at some place of abode with no present intention of definite and early removal and with purpose to remain for undetermined period, not infrequently, but not necessarily combined with design to stay permanently. Bodily presence and the intention of remaining in a place, to sit down, to stay in a place, to settle, to remain and is made up of fact and intention, the fact of abode and the intention of remaining, and is a combination of acts and intention. Residence implies something more than mere physical presence and something less than domicile."
20. What is of paramount importance, therefore, is that intention to stay at a particular place for a considerably long time must be there, as opposed to a casual visit or what is popularly called a 'flying visit' or as Dr. B.R. Ambedkar referred in the Constituent Assembly as the 'birds of passage without any roots, without any connection with that particular Province who just come, apply for a post and take the plums and walk away." In the case of Jagir Kaur v. Jaswant Singh, reported in AIR 1963 SC 1521, their Lordships of the Supreme Court gave the following meaning to the word 'reside' :--
'The said meaning, therefore, takes in both a permanent dwelling as well as a temporary living in a place. It is, therefore, capable of different meanings, including domicile in the strictest and the most technical sense and a temporary residence. Whichever meaning is given to it, one thing is obvious and it is that it does not include a casual stay in, or a flying visit to, a particular place. In short, the meaning of the word would, in the ultimate analysis depend upon the context and the purpose of a particular statute. In this case the context and purpose of the present statute certainly do not compel the importation of the concept of domicile in its technical sense."
21. Viewed thus, the definition of the 'local residents' as occurring in the impugned Notifications appears to us to be unreasonable, arbitrary and not based on any intelligible differentia, also not linked with any fair nexus. To recall the statement of Mr. P.P. Rao, learned Sr. Counsel appearing for the respondent-State, that a person who has been living or whose forefathers have been living in the State for three generations, each generation of 30 years should be eligible to be called a 'local resident', we feel that the State has gone too far in excluding genuine, bona fide, and well intentioned local residents who had established themselves in the State in the after-math of the circumstances leading to the creation of the State as late as on 15th November, 2000 or who had been living here for a considerable period of time even before 15.11.2000. This definition also takes away from its ambit and scope such citizens of India who because of the unfortunate event of the Partition of Indian Sub-continent in 1947 had to migrate from such Indian territories which because of the event of partition had to go to the then Dominion of Pakistan. As we made a brief reference in an earlier part of this judgment, persons who in or before 1947 belonged to and lived in the territories now in Bangladesh or Pakistan and had to migrate and settle in such parts of India in 1947 itself which has now become the State of Jharkhand, the impugned two Notifications would exclude even such persons from the definition of 'local resident'. To say the least, this is wholly unexplainable, untenable and runs counter to the basic concept of citizenship as is enshrined in and attributable to Articles 5 and 6 of the Constitution of India. Whatever be the other considerations, relevant or otherwise, no State can be permitted to exclude from the definition of "local resident" (for any purpose whatsoever) any such person who being a citizen of India or on becoming a citizen of India in accordance with the provisions of the Constitution or other relevant laws, has set up his residence in any part or territory of such State, notwithstanding the fact that the period for which the residence has been set up is shorter as compared to the natives, originals or the ab-originals. The State has to prescribe a more meaningful, more purposeful, more rationable definition of local resident'.
22. When in the aforesaid backdrop, therefore, we examine the correctness of the two impugned Notifications, what we find is that these Notifications in so far as the definition of the "local resident" and, therefore, correspondingly the procedure prescribed for obtaining the Certificate etc. are concerned, suffer from the vice of arbitrariness, subjectivity and non-application of mind as also hostile discrimination against such persons who otherwise have been bona fide residents of Jharkhand State after its formation on 15th November, 2000 and even for a considerable length of time before 15th November, 2000 when the territories now constituting Jharkhand State were part of the erstwhile State of Bihar. By insisting upon defining "local residents" only such persons who have been living in Jharkhand area for three generations, each generation spanning about 25-30 years, the impugned Notifications have excluded such other persons who have been living in Jharkhand area for, say 20 years, 30 years 40 years or even practically 55 years now (those who settled here consequent upon the event of partition in 1947). We have to clearly distinguish between natives, the originals or the ab-originals on the one hand, and the "ordinary" residents on the other. There may be classes of residents who may come in the categories of "natives", "originals" or "ab-originals", but to term them alone local as "local residents" and in the process to exclude the so-called non-natives, the so-called non-originals or the so-called non-aboriginals who have been residing in Jharkhand for decades and decades would clearly be a patent violation of Article 14 of the Constitution and would also run counter to the spirit of Articles 5 and 6 of the Constitution, depriving the natural citizens of this Country the status of "residents" in a particular State and the rights that flow from such status. After all the persons who have been residing in Jharkhand for few decades or even few years cannot be asked to move out of the State tc other areas because there also they might face the same problem. The concept of "local residence", therefore, has to be made more broad pased. Whereas casual visitor or the flying bird, of course, cannot become a "local resident"; depriving, in the process, however, even such a person who has settled his home in Jharkhand, who has made Jharkhand his State, who has grown his roots here for years or decades, whose children were born here, who has taken up vocations here on permanent basis by holding an employment or by being self-employed or who has set up his business here cannot be excluded from the concept, status and definition of "local resident" because excluding him, perhaps, might drive out millions and millions of people from the State, in the process rendering them homeless, what in other term is called "refugees". We, therefore, have no doubt whatsoever in our minds that the definition of "local residents" in the two impugned Notifications is too narrow, too pedantic, too constricted and so arbitrary that on the touch-stone of Article 14 of the Constitution of India, it must fall.
We have also to drav a clear distinction between regular bona fide residents in a place and what Dr. Ambedkar referred to as "mere birds of passage" or such persons "who are flying from one Province to another, from one State to another" but "without any roots, without any connection with that particular province, just to come, apply for posts and, so to say, take the plums and walk away." The former are those who live here in a regular and usual manner who have chosen this place as their abode, who give birth to, and rear their children here and who have developed a social, cultural and personal ties with the people and the place and whose relationship here over a period of time becomes so well entrenched and deep-rooted that this becomes their permanent home. Tn the former category also are those persons who have developed interest, everlasting and deep-rooted, at social and cultural levels as well as have inter-linked themselves inextricably with their commerce, business, vocations, profession or job-orientation. The former category, therefore, by no stretch of imagination can be excluded from the definition of 'local resident'. It is the latter category alone which may be termed as non-locals.
23. In our considered opinion, therefore, the two impugned Notifications in so far as these relate to the definition of the term "local resident" and the procedure prescribed therefore, are unconstitutional and on this ground and to this limited extent deserve to be struck down.
24. If we, therefore, have decided to Strike down the impugned Notifications in so far as these covered the subject of defining the "local resident" and the procedure prescribed therefore, we have to find an alternative route for evolving a more rational, purposeful and effective way and method of defining a 'local resident'. Even though it is not strictly for us to embark upon the task of rendering such definition or even prescribing the procedure for the same, we may with advantage (and to facilitate the evolution of such a meaningful definition) refer to a Resolution issued by the Government of Jharkhand on 29th April, 2002, being Resolution No. 5/Misc. 09/2001 (Domicile) Ka-269 dated 29.4.02 issued under the signatures of Mr. S.K. Chaudhury, Secretary to Government of Jharkhand, Department of Personnel, Administrative Reforms and Rajbhasha in which, while dealing with the definition and identification of the term "local residents" with respect to their admission in the Commercial/Technical Educational Institutions, the State Government (on and after compilation of information from the State of Madhya Pradesh, Orissa, Karnataka, Uttar Pradesh and Andhra Pradesh) indicated and prescribed the following parameters, based upon which a person may be declared and classified as a "local resident", namely :--
(i) The person is born in Jharkhand State; or
(ii) (a) He, or
(b) Either of his parents or
(c) If none of his parents is alive, his lawful guardian has been residing in Jharkhand for the last 15 years;
(iii) Either of his parents is--
(a) a serving or a retired State Government servant or
(b) either of his parents is an employee of Government of India and on deputation is in Jharkhand State in connection with the affairs of Jharkhand Government or of the Central Government Undertakings situated/located in Jharkhand State;
(iv) (a) he himself, or
(b) either of his parents has been holding any immovable property, or is engaged in a trade or commerce in the State of Jharkhand for the last five years.
(v) But in addition to the above :
(a) He has got his education in any educational Institution of Jharkhand for at least seven years, or he has passed the following examinations from any educational Institution situated within Jharkhand, that is, if the minimum educational qualification for admission in any educational Institution has been fixed as Graduation degree from a recognized University, then higher secondary examination;
(b) If the minimum educational qualification for admission in any Institution has been fixed as intermediate from University or Higher Secondary or other and equivalent examination, then class eight examination;
(c) In other cases, class IV examination;
(d) In addition to the above, children and wives of the Officers of All India Services, allocated to the Jharkhand shall be deemed as local persons;
(e) Wives of the persons who come within the definition of the local persons as determined by the State Government shall be deemed as local persons;
(f) If a student's father comes within the definition of original resident and if he is not posted in Jharkhand because of his remaining in Military Service in that case his son/daughter shall be deemed as original resident of Jharkhand irrespective of the fact that he has not received education in any educational Institution of the State. This facility shall be available only to the Officers/staff of the Military service.
(g) For the children of the ex-service men, there shall be relaxation in the local resident certificate for taking admission in Vocational Colleges/Institutions.
(h) In view of the difficulties of the displaced Kashmiri families who have come from Kashmir, they shall be exempted from meeting the requirements of being original residents in respect of Projects for which the requirement of original resident of Jharkhand is essentially to be conformed.
(i) Either of his parents has been registered as a refugee in Jharkhand.
(j) They are the sons/daughters of Hon'ble M.Ps., Ex- M.Ps., M.L.As., Ex-M.L.As., Ex-councillors and Councillors of Jharkhand State in the light of Bihar State Re-organization Act, 2000.
(vi) Only those applicants for admission in educational institutions will be issued residential certificates who do not hold residential certificates of any other State."
25. Taking a cue from the aforesaid definition of the term "local resident", perhaps, we find that this is more conducive to the aspirations of the people, fits in with the ethos and culture of local conditions and appears to be based on more rational and objective criteria. If we compare this Notification dated (29th April, 2002) with the two impugned Notifications, we find that the impugned Notifications are illogical, irrational, unreasonable and arbitrary and are based on such classification which is wholly artificial and whimsical and has nothing to do with the object sought to be achieved and has neither any basis nor any nexus with the noble purpose of affording preferential treatment to the "local residents". We, therefore, may have no hesitation in observing that the impugned Notifications violate both Articles 14 and 16 of the Constitution of India being discriminatory and arbitrary. On the other hand, the Notification dated 29th April, 2002 (supra) appears to be well conceived and is based on a fair and objective criteria. In our considered opinion, the State Government may be well advised in considering the question of adopting the aforesaid Notification or the parameters and guidelines contained therein with suitable modifications (wherever they are needed) with respect to employment in Class III and Class IV posts which form the subject matter of the impugned Notifications.
26. Based upon the aforesaid reasoning, therefore, and in the light of the discussions rendered hereinabove, in conclusion, whereas we uphold the impugned Notifications in so far as these seek to accord preferential treatment to "local residents" (all other things being equal) who also have the knowledge of local customs, conditions and language etc., the impugned Notifications in so far as these define the expression "local residents" and prescribe the procedure therefore are held and declared to be unconstitutional and illegal, being ultra vires Articles 14 and 16 of the Constitution and, thus, are hereby struck down. In the light of the observations, made in this judgment, we leave it open to the State Government to re-define, give and describe a proper meaning to the term "local residents".
27. The Writ Application to the extent indicated above is accordingly allowed. In the peculiar circumstances of the case, there shall be no order as to costs.
S.J. Mukhopadhaya, J.
1. I have gone through a very well reasoned and elaborately prepared judgment written by Hon'ble the Chief Justice. While I am in full agreement with the judgment of Hon'ble the Chief Justice with regard to all the issues involved, the findings given and the pronouncements of law and also concur with the same, in view of the important questions of Constitutional law involved, I venture to write a few words of my own.
After, creation of the State of Jharkhand, the Government of Jharkhand have decided to give preference to local persons' in the matter of employment against Class III and IV posts. However, when the advertisement No. 1/2002 was published in the newspaper for appointment to the post of Constables, were called for only from the 'local persons", excluding the non-residents and the outsiders. This gave rise to strong objections from different corners of the State against the decision, as also support-in favour of the Government policy.
The present writ petitions in the shape of 'Public Interest Litigations' arise out of the Government policy to give preference to 'local persons' in the matter of employment against Class III and IV posts and against the Advertisement No, 1/2002 which are alleged to be ultra vires and violative of Articles 14 and 16 of the Constitution of India.
2. Before discussions of the rival contentions made by the parties and the relevant facts, it is desirable to look into the Jharkhand problems, which is more than five decades old, if not older, as was reported by a Committee in May, 1990 constituted on Jharkhand matters by the Government of India, Ministry of Home Affairs, vide their letter No. II-18015/17/ 89-ISDI(B), New Delhi, dated the 23rd August. 1989.
3. The Committee noticed that the Jharkhand region is comprised of Chhotanagpur Plateau and the Santhal Parganas covering an area of 1.90 lakhs squire K.Ms, having population of 1.80 crores according to 1981 Census. The overall per centage of Tribal was 30.26% ranging from 9% to 15% in Hazaribagh, Dhanbad, Deoghar and Giridih Districts; from 16% to 30% in Palamau and Godda Districts; from 30% to 50% in Ranchi, Singhbhum, Dumka and Sahebganj Districts; and 59% in Lohardaga, as well as 74% in Gumla-districts.
In Chhotanagpur, the concept of 'Sadan' has been applied to cover all sections of non-tribals, except those who have come recently. The termology 'Sadan' is used for "Sadavasi"; "Anadivasi" and so on, to trace their status as very old inhabitants, as old as Tribals themselves. They are called "Mulvasis".
The contempt of non-tribal 'Sadan' is not there in santhal Parganas or in adjoining areas of Orissa, West Bengal and Madhya Pradesh, though they were in sympathy with the demand for autonomy. The Committee reported that the concept of the 'son of the soil' had not crystallized (as in May, 1990), though there were demands that those who came to Chhotanagpur, Santhal Parganas region after the last revisional settlement, should be declared as 'outsiders'. Some people demanded that the dividing line should be the year of independence.
It came to the notice of the Committee, as back as in May, 1990 that the Jharkhand region is a neglected, backward area within the then State of Bihar. The 'local persons' have been discriminated against in the matter of employment in Government, Public and Private Sectors. The discrimination in employment, is one of the most important ' cause of discontentment and resentment as it affected the conscious and articulate structure of Society.
As per 1981 census, against 26.2% of literacy in the State of Bihar, for Jharkhand region it was 28.01%. In spite of higher literacy while the Mega Projects like Heavy Engineering Corporation (HEC); Steel Plant; MECON; Coal India Limited etc. Public and Private Sectors started the expectation of employment amongst these regions began to soar. The complaint commonly heard was that, by and large, not only have the employment opportunities passed them by, but they have mostly been seized by 'DIKUS' i.e. the people coming from outside the region.
The Committee reported that there was a common demand that at least Class III and IV posts should be reserved for the 'local people'. While no agreed definition of 'local people' was forthcoming, the people, in general, wanted that the people from North Bihar should be excluded from considerations for appointment against the Class III and IV.
4. The State of Jharkhand in their counter affidavit have highlighted the aforesaid report and reasons to come out with the Notification under challenge.
5. It appears that the Joint Secretary, Labour and Employment department from its Directorate of Employment and Training (Employment), Bihar issued a Letter No. 3/Stha.Ni-5014/91-806 dated 3rd March, 1982 to the Secretary to Chief Minister; Secretary to the Chief Secretary; Personal Secretary to the Leader of Opposition and Secretaries of all other Departments of the Government, informing of the decisions taken in the meeting of the Political leaders held on 28th April, 1981 under the Chairmanship of the Chief Minister, wherein it was decided that those whose or their ancestors' name is/are appearing in the last Survey record of the District, they should be treated as locals' and the officers were requested to give preference to the 'local persons' in the matter of employment.
From the Committee's report of May, 1990 (Annexure-A, Para 17, at page 24), it appears that the aforesaid letter issued in response to the sentiment of the locals was not given effect, consequential orders having been struck down by the High Court.
In fact in the case of Anil Kumar v. State of Bihar, reported in 1987 PLJR 846, a Division Bench of Patna High Court set aside an advertisement, whereby applications were called for, for appointment to the post of Teachers only from the district of Hazaribagh, being violative of Articles 14 and 16 of the Constitution of India.
6. In spite of aforesaid report of Committee that the letter relating to appointment of local persons' against Class-III and IV posts was not given effect, letter No. 5014/81-806 dated 3rd March, 1982, was adopted by the State of Jharkhand under Section 85 of the Bihar Reorganisation Act, 2000, by Notification No. 5/vividh-09/2001-3389 dated 22nd September, 2001.
7. The aforesaid letter No. 3/Stha-Ni-5014/81-806 of Joint Secretary, Labour & Employment Department, Government of Bihar dated 3rd March, 1982 by no stretch of imagination can be termed as 'a law' laid down by the State of Bihar. It was not an authentic order of the Government, nor it is a notification or any other instrument of the State of Bihar. It only gives reference to a meeting held under the Chairmanship of Chief Minister with leaders of the various political parties. Thus, the letter No. 3/ Stha-Ni-5014/81-806 dated 3rd March, 1982 do not fall within the ambit of Section 85 of the Bihar Reorganization Act, 2000 for adoption by the State of Jharkhand. Therefore, the Notification No. 5/Vividh-90/2001-3389 dated 22nd September, 2001 issued by the State of Jharkhand purportedly in exercise of power under Section 85, does not appear to be sound because what has been sought to be adopted is not 'a law' and, therefore, Notification No. 5/Vividh-09/2001-3389 dated 22nd September, 2001 can be termed as non est in the eye-of law.
8. An advertisement No. 1/2002 published by the Respondents, canceling the earlier advertisement No. 1/2001 for appointment to the post of Constables. This time, applications were called for only from 'local persons', excluding the non-residents/ outsiders.
Subsequently, a notice was published in the newspaper by D.I.G. Police (Personnel), Jharkhand, whereby the non-residents/ outsiders were also allowed to apply for appointment to the posts of constable. The State of Jharkhand thereafter issued a Resolution circulated vide Notification No. 5/Vividh-09/200l-Ka-4536/Ranchi, dated 8th August, 2002 laying down the definition of 'local persons' for employment. It followed by Resolution bearing Memo No. 5/Vividh-09/200l Ka-4737/Ranchi, dated 19th August, 2002, whereby Paragraph Nos. 5A and B of Resolution No. 5/Vividh-09/2001-Ka-4536/Ranchi dated 8th August, 2002 was modified to include some other class of residents of the State of Jharkhand within the ambit of local persons', as quoted hereunder :
Government of Jharkhand Department of Personnel, Administrative reforms and Raj Bhasha RESOLUTION Sub : Regarding definition of "Local Person" for employment The following paragraph of the resolution No. 5/Misc.- 09/20Ol/Per-sonnel-4536/Ranchi dated 8th August, 2O02 issued by the Department of Personnel, Administrative Reforms Si Raj Bhasha, Jharkhand on the above mentioned subject are partially amended/varied as under :
1. Paragraph I of the above mentioned Resolution is substituted for word Memorandum (Sanlekh). Therefore, this paragraph now may be read as under :
In exercise of power conferred under Section 85 of Bihar Reorganization Act, 2000, Government of Jharkhand adopted Government of Bihar, Labour, Employment and Training Department's Circular No. 3/Estab. Employment-5014/81-806, Patna dated 3.3.1982 after obtaining the approval of Council of Ministers in their meeting dated 20.9.2001 and issued a Notification number 5/Misc.-09/2001-3389 dated 22.9.2001. A copy of the said Circular and Notification are enclosed herewith, (the Resolution marked as Annexure 1 and 2).
2. Paragraph 5(a) and 5(b) of the said Resolution are varied as under ;
"5" In the above mentioned background, the Government of Jharkhand after due deliberation and after considering all aspects of the matter have decided to continue with the definition of "local person" as contained in the notification of Government of Jharkhand bearing No. 5/Misc.-09/2001 -3389 dated 22.9.2001 and Government of Bihar, Department of Labour, Employment and training Circular No. 3/Estab. Employment 5014/81-806 dated 3.3.1982, Patna and have decided to expand the connotation of definition keeping the policy of giving priority in employment to the "Local Person" in fact, on the following manner :
(a) The persons whose name or his ancestor's name does not find mention in the last survey due to various reasons such as landless, the area being Urban and unsur-veyed but he or his ancestor have been living within the State of Jharkhand generation after generation in their respect the authorized officials can issue a certificate to the effect of "Local Person" on the basis of following evidence and after local enquiry.
If the applicant belong to rural areas, the applicant will produce the name of five such persons as evidence of his own revenue village in their names or in the name of their ancestors has been entered in the last Survey as land owner or Homestead and those five persons give certificate in writing that the particular person or his ancestors has been living in that area since generations and are familiar with local conditions like local language, customs etc. There are several district as well wherein the rural areas "Records-of-Rights" has been prepared but in some urban areas the Records-of-Rights have not been prepared. But in these districts, Records of Municipals/local Bodies corresponding to the last survey of the districts must have been existed which find mention about the land, homestead etc. of the person of the said town. In order to obtain certificate of "Local Person" in such unsurveyed urban areas the applicants have to produce the names of five such persons who are residents of that urban area and in their name themselves or in the name of their ancestors, their land, homestead Jind mention in the Records of Local Bodies which have been discussed above. If such five persons certify that the applicant or his ancestors have been living in that urban areas since generation after generation and are familiar with the local conditions like local language, customs etc. then their evidence will be sufficient to obtain certificate of "Local Person".
For employment, the certificate of "Local Person" will be issued to those applicants only who are not covered by the Certificate of "Sthaniya Niwasi"/"Mul Niwasi"/ "Adhiwasi"/' 'Sthai Niwasi" of the other States.
(b) It has also been decided that under the State Government the district level Class III and IV posts where the district level officers are appointing authority the priority in employment will be given to the "Local Persons" and the persons familiar with the local condition like local language, customs etc. for those districts only for which the vacancies have been advertised.
The same arrangements will be made applicable for the Division level Class-III and IV posts under the State Government meaning thereby that the "Local Persons" and those who are familiar with the local conditions like local language, customs etc. of the said Division will get priority in the employment.
In the State level Class III and IV posts where the appointing authorities are State level officers such as Secretaries of the Departments/Head of the Departments etc. then the priority will be given to all "Local Persons" of all the districts and who are familiar with the local conditions like local language, customs etc. But in case of Class in posts of the State level barring those where the appointments are to be made on the recommendations of J.P.S.C., Ranchi, priority will be given to the "Local Persons" of all the districts of the State and who are familiar with the local conditions like local language customs etc.
3. The rest of the paragraphs of the Resolution No. 05/Misc./09/200l Personnel-4536/Ranchi dated 8.8.2002 will remain as it is.
ORDER : It is being ordered that this may be published in the Official Gazette for information to the general public, its copy may be sent to the Accountant General, Ranchi, Registrar General, Jharkhand High Court, Ranchi/ Copy to all Departments/All Heads of the Departments, Jharkhand/Chairman, J.P.S.C., Ranchi/All Divisional Commissioners/All Deputy Commissioners, Jharkhand for their information and necessary action.
By the Order of the Governor Jharkhand Memo No. 05/Vividh-09/2001 Ka-4737/Ranchi, dated 19th August, 2002"
9. Three basic and broad issues arise for consideration in these cases, which can be referred to as the broad and general questions of law of paramount constitutional importance, as mentioned hereunder :
(i) Whether constitutionally, especially in view of language employed in Article 16(2) of the Constitution of India, it is permissible for the state, in exercise of its executive power, to give preferential treatment on the basis of 'Residents' coupled with the requirement of the knowledge of local conditions, i.e., the 'local language' and the 'local customs'?
If the first question as raised above, is answered in affirmative and is constitutionally permissible, the next question is :
(ii) Whether the definition of 'local persons' made by the State, vide resolution No. 4737 dated 19th August, 2002 is just, proper and valid or arbitrary and unreasonable in view of different definitions of 'local persons' having given for appointment against district level, divisional level and State level Class-III and IV posts? The third and last question as raised is :
(iii) Whether the procedure prescribed for issuance of the certificate by the Officer(s) vide resolution No. 4737 dated 19th August, 2002 is just, proper, valid or is arbitrary, unworkable and unreasonable, being based on the Records-of-Right prepared about 70 years back or on the re commendation/identification by five khatiyanis, i.e. persons whose or their ancestors' names are appearing in the Records-of-Rights to the effect that the concerned person has been residing in the area for generation after generation (PIRHI DAR PIRHI) which, according to Mr. P.P. Rao, counsel for the State, means three generations, each accounting for thirty years i.e. 90 (ninety) years.
10. The counsel for the petitioners highlighted the salient features of the policy of State to give preference to 'local persons' in State employment against Class III and IV posts.
11. According to the counsel for the petitioners, Article 14 grants equality to all persons within the territory of India. Article 16 stipulates equality of opportunity in the matter of public employment. No citizen can be discriminated nor can be made ineligible for any employment under the State on the ground of religion, race, caste, sex, descent, place of birth, residence or any of them.
Article 16(3), however, enables the Parliament to legislate and make a law in regard to class or classes for employment under the State prescribing any requirement as to 'residence' within that State, according to the counsel for the petitioners, the State Government is wholly incompetent to legislate or to make any provision prescribing 'residence' as a requirement for any State employment.
The counsel for the petitioners further submitted that the State Government's decision to give preference in State employment to 'local persons' whose or their ancestors' names recorded as land holders in the last survey records of right, as diluted to include certain other class of persons by allowing five Khatiyanis (those whose names are in the records of right) to identify and give a certificate that they or their ancestors are living generation after generation in the State is arbitrary, ultra vires, being violative of Articles 14 and 16(2) of the Constitution of India. In a logical corollary, the State Government is incompetent to issue any each executive instructions or notifications making requirements as to 'residents' in a district or in the State as 'eligibility' for the State employment.
The counsel for the petitioners relied on debate of constituent assembly at the time of preparation of the draft constitution and submitted that the framers of our constitution as well as the custodian of our constitution engrafted the Article 16(1) and (2) to make India a free State, free from parochialism, regionalism so that the slogans of 'sons of the soil' such as Bengal for Bengalis; Madras for Madrasis etc. would never raise in independent India. Here, the State of Jharkhand indirectly beset with the slogans Jharkhand for Jharkhandis.
12. Mr. P.P. Rao, on behalf of the State of Jharkhand submitted that the Resolution No. 05/Vividh-09/2001 Ka-4737 dated 19th August, 2002 is holding the field as on the day, earlier Notifications and resolutions having superseded or amended.
13. In support of the Resolution No. 05/Vividh-09/2001 Ka-4737 dated 19th August, 2002, the submissions as were made by Mr. P.P. Rao, Senior Advocate on behalf of the State, are summarized, as follows :
(i) The Resolution No. 05/Vividh-09/2001 Ka-4737 dated 9th August, 2002 is comprehensive. The sum and substance of the Resolution is that all things being equal, preference be given to 'local persons' who are familiar with the local conditions like local language, customs etc.' This preference will be given only in the event of a tie between two or more candidates whose performance at the selection is found to be equal.
(ii) Familiar with the local conditions like local language, customs etc. is an intelligible differentia which has reasonable nexus with the object of recruitment at the district level against Class-III and IV posts.
(iii) Classification is primarily for the competent authority to make. So long as the classification made is not irrational or arbitrary, it has to be upheld,
(iv) Article 16(2) of the Constitution of India prohibits discrimination 'only' on any ground mentioned therein, e.g. 'residence'. In the instant cases, the classification made is 'not only' on the ground of 'residence' but on the ground of 'local candidates' who are familiar with the local conditions like local language customs. Persons who are familiar with the local conditions are more suitable for the posts in Class III and IV at the district level. Article 16(2), is, therefore, not violated.
(v) The classification made is based on intelligible differentia which has a reasonable nexus with the object of recruitment to lower level posts such as (Class III and IV) at the district level and divisional level.
(vi) So far as the recruitment at the Divisional level is concerned, there is no discrimination amongst 'local persons' belonging to the districts comprising the Division concerned, so long as they satisfy the additional requirement of being familiar with the local conditions of any one of the districts which is a part of the Division.
(vii) So far as the recruitment to Class III and IV posts by State level Officers or Heads of the Department, and 'local persons' who are familiar with the local conditions of any one district of the State of Jharkhand are equally entitled to preference in the event of a tie between the candidates who is not a 'local person' and the candidate who is a 'local person' familiar with the local conditions of any one district.
(viii) The classification has to be decided with reference to vast majority of the cases and not on the touch- stone of fortunes of two individuals.
14. Mr. Rao submitted that in an unlikely event that either of the two criteria, namely, 'local persons who are familiar with the local conditions like local language, customs etc.' or both the criteria are declared unconstitutional, the State Government would welcome the guidance from this Court so as to enable the State Government to protect the interest of the 'local persons' in a manner which will sub-serve the object of recruitment at the district and divisional level.
15. The counsel for the Interveners supported the stand of the State and most of them adopted the argument as was advanced on behalf or the State of Jharkhand.
16. Mr. Raju Ramchandran, Senior Advocate on behalf of the Intervener, Jagdish Lohra, submitted that the Resolution No. 05/Vividh-09/2001/Ka-4737 dated 19th August, 2002 does not contravene Article 16(3) of the Constitution of India. Under the said provisions, it is only a 'requirement' as to the residence which requires legislation by the Parliament. In the cases at hands, a person who is a 'non-resident', is not prevented from applying rather it is only preference to the 'local persons', rest of the things being equal. Therefore, according to him, Article 35(a)(i) of the Constitution is also not contravened.
Further, according to Mr. Ramchandran, the provisions of Article 16(2) of the Constitution of India are not contravened either, because what those provisions prohibit is 'discrimination', which is not mere difference in result, but has to have a 'hostile' element to it to be branded unconstitutional. A preference to 'locals', other things being equal, does not result discrimination against others. Classification, if any, is not only on the basis of place of residence, nor it can be alleged discriminatory. The impugned Resolution No. 05/Vividh-09/2001-Ka- 4737 dated 19th August, 2002, embodied a reasonable classification having a rational nexus with the object sought to be achieved, viz. upliftment of the residents of the Jharkhand regions, to redress whose grievances the State of Jharkhand has been created after a long struggle.
17. Further case of the Interveners is that a share in public employment creates empowerment and reduces alienation. This ultimately strengthens democracy which is a basic feature of the Constitution. In its interpretation, the Court would whatever possible adopt a construction which will strengthen the basic features of the Constitution. The Court should not go into the question of the relevance of familiarity with the local language, customs etc. because of the well settled practice that in constitutional matters, the Court do not decide matters which do not immediately arise for a decision. This Court would like to go into only in the context of particular advertisement where the petitioners may question such relevance in the context of the particular post which has been advertised.
As far as granting of certificate of residents on the basis of certificate from five persons whose names are there in the relevant records of right is concerned, according to the counsel for the Interveners, the competent authority is not bound to grant such certificate, where there is room for any suspicion. Also, the possibility of abuse is not the determining factor as any individual instance of abuse of power can always be challenged,
18. Almost similar stand was taken by the other Interveners as was taken by the State and Intervener Jagdish Lohra, as referred above.
19. On behalf of one of the Interveners Adivasi Jharkhand Janadhikar Manch, reference has been made to the policy decision of the Government of Andhra Pradesh for recruitment from amongst 'local persons'. It is also submitted that the advertisement for appointment to the post of Constable as was made vide Advertisement No. 1/2001 having cancelled and modified vide subsequent notification published on 29th July, 2002 (Advertisement No. 1/2002) the petitioners have no cause of action and the writ petitions have become infructuous.
20. By the first clause of Article 16 of the Constitution, equality of opportunity in employment or appointment to an Office is guaranteed. By the second clause, there can be no discrimination amongst other things on the ground of residence. Realising however, that some time local sentiments may have to be respected or some times, an inroad from more advance States into less developed States may have to be prevented and a residential qualification may, therefore, have to be prescribed, the exception Clause (3) to Article 16 was made.
The aforesaid view was expressed by the Supreme Court in the case of A.V.S. Narsimha Rao v. State of Andhra Pradesh, reported in 1969(1) SCC 839.
21. The requirement of residence in a territory is opposed to the Article 16(2) of the Constitution of India. Only under Article 16(3), a law made by the Parliament can impose such a restriction of requirement, as the case may be. Such view was expressed by the Supreme Court in the case of Director of Industries & Commerce v. Venkata Reddy and Ors. reported in (1973) 1 SCC 99 and in the case of Union of India v. Sanjay Pant, reported in 1993 Supp. (2) SCC 494.
22. In the case of Kailash Chandra Sharma etc. v. State of Rajasthan, reported in JT 2002 (5) SC 291 : 2003 (1) JCR 87 (SC), a Circular dated 10th June, 1998 prescribing weightage/bonus marks for residents of concerned State and rural area of such districts, fell for consideration before the Supreme Court.
In the said case of Kailash Chandra Sharma, (2003) 1 JCR 87 (SC) the suggestion as was made by the parties that residence within a district or rural areas of that district would be a valid basis for classification for the purpose of public employment, was rejected by the Supreme Court with the following observations :
"We have no doubt that such a sweeping argument which has the overtones of parochialism is liable to be rejected on the plain terms of Article 16(2) and in the light of Article 16(2). An argument of this nature flies in the fact of the peremptory language of Article 16(2) and runs counter to our constitutional ethos founded on unity and integrity of the nation. Attempts to prefer candidates of a local area in the State were nipped in the bud by this Court since long past. We would like to reiterate that resident by itself - be it be within a State, region, district or lesser area within a district cannot be a ground to accord preferential treatment or reservation, save as provided in Article 16(3)....."
23. The stand of the Respondents, in the cases at hands, is that the question of preference to local persons arises only when all things being equal i.e. in the event of tie between two or more candidates whose performance at the selection is found to be equal, the preference is not given to a local person only because the person is 'local resident'. It is to be given to local persons' who are familiar with local conditions like local language, customs etc.
24. Article 16(2) of the Constitution of India fell for consideration before the Punjab and Haryana High Court in the case of Raghubans v. State, reported in AIR 1972 P&H 117. In the said case, the Division Bench of the Court held, as follows :
"Article 16(2) has to be viewed and construed in the particular context of the requirements of the public service. One of the paramount considerations for the public service must necessarily be the efficiency of its employees. The State must select and appoint persons most suitable to discharge the duties of a particular job which they are to hold.............. Though no discrimination on the ground of sex alone is permissible in the public service under Article 16(2), it is evident that where disparities of either sex, patently add to or detract from, the capacity and suitability to hold a particular post or posts, then the State would be entitled to take this factor into consideration in conjunction with the other............."
(emphasis given by me)
25. By a Notification dated 17th March. 1979, linguistic concessions were given to candidates hailing from remote regions for Combined Competitive Civil Services Examination. The said Notification fell for consideration before the Supreme Court in the case of Javed Niaz Beg v. Union of India, reported in AIR 1981 SC 794. The Supreme Court held the concession given to those linguistically less advanced group not in contravention of equality but conductive to equality.
The Supreme Court in the case of Air India v. Nergesh Meerza, reported in AIR 1981 SC 1829, noticed the earlier decisions in Yusuf Abdul Aziz v. State of Bombay & Hussainbhai Laljee, reported in 1951 (4) SCR 930 : AIR 1954 SC 321 and decision in C.B. Muthamma v. Union of India, (1979) 4 SCC 260 : AIR 1979 SC 1868, wherein sex was held to be a permissible classification, as quoted hereunder :
"Even otherwise, what Article 15(1) and 16(2) prohibit is that discrimination should not be made only and only on the ground of sex. These Articles of the Constitution do not prohibit the State from making discrimination on the ground of sex coupled with other considerations."
26. As referred earlier, in the case of Kailash Chandra Sharma, (supra), the Supreme Court while made brief analysis of Article 16, observed, as follows See 2003 (1) JCR(SC) Para 15 :
"Article 16 which under Clause (1) guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State reinforces that guarantee by prohibiting under Clause (2) discrimination on the ground only of religion, race, caste, sex, descent, place of birth, residence or any of them. Be it noted that in the allied Article -- Article 15, the word 'residence' is omitted from the opening clause prohibiting discrimination on specified grounds. Clause (3) and (4) of Article 16 dilutes the rigor of Clause (2) by (i) conferring an enabling the residential requirement within the State in regard to a class or classes of employment or appointment to an office under the State and (ii) by enabling the State to make a provision for the reservation of appointments or posts in favour of any backward class of citizens which is not adequately represented in the services under the State. The newly introduced Clauses (4-A) and (4-B), apart from Clause (5) of Article 16 are the other provisions by which the embargo laid down in Article 16(2) in somewhat absolute terms is lifted to meet certain specific situations with a view to promote the overall objective underlying the Article. Here, we should make note of two things; firstly, discrimination only on, the ground of residence (or place of birth) in so far as public employment is concerned is prohibited. Secondly, Parliament is empowered to make the law prescribing residential requirements within a State or Union Territory, as the case may be, in relation to a class or classes of employment. That means, in 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, bat the factum of residence is only taken into account in addition to other relevant factors. This, in effect, is the import of the expression 'only'."
(emphasis given by me)
27. In the case of Kamal Kanti v. Union of India, reported in AIR 1980 SC 2056, the Supreme Court noticed the individual instances of injustice caused to a group of employees but held that no matter with what care of objectivity and foresight, a rule is framed, some hardship, inconvenience or injustice is bound to result to some members of the service.
In the case of Reserve Bank of India v. C.N. Saharsranaman, AIR 1986 SC 1830, the Supreme Court observed that in service jurisprudence there cannot be any service rule which would satisfy each and every employee and its constitutionality to be judged by considering whether it is fair, reasonable as does justice to the majority of the people.
28. In view of the decisions rendered by the Courts, including the Supreme Court, the State Government's decision to give preference to 'local persons who are familiar with the local conditions like language, customs etc. in the event of a tie between two or more candidates whose performance at the selection is bound to be equal, cannot be said to be discriminatory being not based on 'residence alone' and is valid, being just, proper and is immune from challenge.
29. The first question is, accordingly answered in affirmative, in favour of the State and against the petitioners.
30. So far as local persons' are concerned, they have been classified in three groups for appointment against Class III and IV posts, by Resolution No. 05/vividh-09/2001 Ka-4737 dated 19th August, 2002 :
(1) 'Local persons' for the purpose of appointment against district level posts;
(2) 'Local persons' for the purpose of appointment against Divisional level posts; and (3) 'Local persons' for the purpose of appointment against State level posts.
One set of 'Local person' is different to other set ('Local person') for appointment against District level. Divisional level and State level posts.
31. To answer the second question, it is necessary to look into and discuss the meaning of 'residence', as in the Dictionary and held by the Courts from time to time.
32. In the case of Yogesh Bhardwaj v. State of U.P., (1990) 3 SCC 355. Supreme Court observed :
"Residence" which is a physical fact means "bodily presence as an inhabitant". Such residence must be combined with intention to reside permanently or for an unlimited time in a country. It is such intention coupled with residence that acquires him a new domicile. It is immaterial for this purpose that, the residence is for a short duration, provided it is coupled with the requisite state of the mind, namely the intention to reside there permanently."
33. In the case of Union of India v. Dudhnath Prasad, reported in AIR 2000 SC 525, the Supreme Court held that the concept of domicile cannot be used for determining 'ordinary residence'.
The Court further observed that, etymologically 'residence' and 'domicile carry the same meaning, inasmuch as both refer to 'permanent home', but under the Private International Law 'domicile' carries a little difference cone and except the many facets. 'Domicile' and 'Residence' are relative concepts and have to be understood in the context of knowledge they arc used, having regard to the nature and purpose of statute in which these words are used.
The word 'residence' has been defined in the Oxford Dictionary' as 'dwell permanently or for a considerable time to have once settled or usually abode; to live in or at a particular place."
34. In the aforesaid case, the Supreme Court, held that the meaning of 'residence', therefore, covers not only the place where the person has a permanent residence but also the place where the person has resided for a 'considerable time'.
35. In the aforesaid ease of Dudhnath Frasad, (supra), the Supreme Court noticed the Dictionary meaning of the word 'residence' as defined in Black's Law Dictionary, 5th Edition, as quoted hereunder :
"Personal presence at some place of abode, with no present intention of definite and early removal and with purpose to remain for undetermined period, not infrequently, but not necessarily combined with design to stay permanently. Bodily presence and the intention of remaining in a place to sit down, to settle in a place, to settle, to remain, and is made up of fact and intention, the fact of abode and the intention of remaining, and is a combination of acts and intention. Residence implied something more than mere physical presence and something (less) than domicile."
Taking into consideration the fact that the parents of respondent Dudhnath Prasad were residing for more than thirty years in the district of Howrah in West Bengal, the Supreme Court held his parents as 'ordinary residence' of the State of West Bengal.
(emphasis given by me)
36. This question does not require much discussion in view of specific decisions of the Supreme Court.
In the case of A.V.S. Narsimha Rao v. State of Andhra Pradesh, reported in 1969 (1) SCC 839, the Supreme Court held that the Article 16 speaks of 'residence' in a State and means only that. It further observed :--
If it chooses to speak of residence in parts of State, such as Districts, Taluqas, Cities. Towns etc., more appropriate and specific language could have been used such as requirement as to the residence within that State or Union Territory or part of that State or part of that Stale or Union Territory. Having used the word 'State', the unit -- State is only means and not any part thereof.
There can be no discrimination as between person and person within a State. 'Residence' is with reference to State as a whole and not part: of it.
37. Similar was the view of Supreme Court taken in the case of Director of Industries and Commerce v. V. Venkata Reddy, (1973) 1 SCC 99, wherein Article 16 was interpreted to mean that it speaks of a whole State as the venue for residential qualifications.
38. In the case of Kailash Chandra Sharma v. State of Rajasthan, reported in JT 2002 (5) SC 591 : 2003 (1) JCR 87 (SC) (Para 37), the Supreme Court held that the award of bonus marks to the residence of the district and the residence of rural areas of the district amounts to impermissible discrimination. There is no rational basis of such preferential treatment. It has no nexus with the object sought to be achieved.
39. In view of authoritative pronouncement of Supreme Court that 'residence' is with reference to a State as a whole and not a part of it, as there cannot be a 'local residence' of a district or a division, the definition of 'local persons' as stipulated vide Resolution No. 05/Vividh-09/2001-Ka-4737 dated 19th August, 2002 cannot be upheld being arbitrary and unreasonable having no nexus with object sought to be achieved.
The second question is answered, accordingly, against the State.
40. The third and the last question relates to guidelines prescribed for issuance of a certificate of 'local persons' by the competent authority.
The guidelines prescribed under Resolution No. 05/vividh-09/2001 /Ka-4737 dated 19th August, 2002 is mainly based on records of right or on the identification by five Khatiyanis i.e. those whose or their ancestors' names are appearing in the records of right. They will give certificate to the effect that the concerned person is residing in the area for generation after generation (Pirhi dar Pirhi).
41. According to the petitioners, the criteria for determination of 'local persons' on the basis of last survey records of right is itself arbitrary and strikes at the very route of Article 14 of the Constitution of India and is unreasonable having no nexus with the object sought to be achieved.
42. Mr. Rajiv Ranjan, counsel for the petitioner, Prashant Vidyarthy referred to some historical perspective of the nature of survey settlement for different districts upon which the records of rights were prepared.
According to him, survey was made under Chhotanagpur Tenancy Act for the Chhotanagpur area/region and under Regulation-III of 1872 for the Santhal Par-ganas. In the Santhal Parganas region of Jharkhand, the records of rights have been prepared on the basis of report prepared by J.F. Gantzer popularly known as Gantzer's Report. The survey operation commenced in October, 1922 and concluded in February, 1935 excluding the following areas :
(i) "Sauria Paharia hills of the Raj-mahal and Godda Sub division.
(ii) The "Ganges Diara Trackts" of Rajmahal.
(iii) The Municipal Town of Dumka, Sahebganj, Deoghar and
(iv) The Jungle Trackts of Santhal Pargana.
Thus, if the definition of 'local persons' is based on last survey records of rights, the Santhals of Raj Mahal, Godda, Dumka, Sahebganj, Deoghar and Madhupur never be able to secure certificates of 'local persons', though they are the original inhabitants of Jharkhand.
43. The petitioner, Prashant Vidyarthy in his written argument has stated that the years of the last survey settlement is different for different districts, such as; for Dalbhum, it was between 1906 to 1911; for Seraikela between 1925 to 1928; for Hazaribagh between 1908 to 1915; and for Palamau between 1913 to 1920. After the aforesaid surveys, fresh survey settlement is also in operation, in many of the districts, such as Palamau, Ranchi, Santhal Parganas and Hazaribagh. The survey settlement report for Singhbhum district is of the year 1964. Therefore, according to the counsel for the petitioner, the last records of rights is that of the year 1964 for the district of Singhbhum.
44. From the last Gazetter of Singhbhum district as produced by petitioners, it appears that the areas of Chandil, Patamda and Ishagar Police stations which were in the district of Manbhum (West Bengal) were integrated to the Singhbhum district in the year 1956, as a result of the recommendations of the State Reorganisation Commission.
45. The 'Seraikela' and 'Kharsawa' which were part of the State of Orissa were integrated in the district of Singhbhum in the year 1948.
46. The instance of 'emigration' has a particular feature of the Chhotanagpur region. The emigration of several types took place such as emigration to the Coalfields and to the Tea Gardens. It is hardly any part of India from where the people have not come to Jamshedpur to earn their bread since the inception of the steel Factories of the TATAS in the-year 1907.
47. The last Gazetteer of Singhbhum, details of rehabilitation of displaced persons in the district of Singhbhum has been given. Since partition of India in 1947, displaced persons both from East and West Pakistan were settled in the region.
The first batch of displaced persons numbering 3000 (three thousand) had arrived only in the district of Singhbhum from West Pakistan in the later part of 1947 and were housed in the liquidated Military Camp at Chakulia Airfield. Later on, they were shifted to Jamshedpur and were rehabilitated.
The second batch numbering 1170 (one thousand one hundred and seventy) arrived in the district of Singhbhum from East Pakistan in May, 1950 and were housed in Jamshedpur, The third batch of East Pakistan refugees arrived in July, 1951 from Bihta Camp, considered of 420 (four hundred and twenty) persons, were settled in the Colony at Chakradharpur (district - Singhbhum).
The fourth batch of displaced persons consisted of 318 (three hundred and eighteen) persons arrived in the district of Sinhbhum in November, 1952 from East Pakistan. However, they were sent to Purnia district.
The fifth batch of refugees from East Pakistan came in March, 1957, who were agriculturists and were rehabilitated at Village Tentuldanga about two miles from Ghatshila (district- Singhbhum).
An area of 20.21 acres were taken from the TISCO in Jamshedpur on Golmurhi Road where refugees were settled. They are divided into three blocks, known as Punjabi Block, Sindhi Block and Bengali block.
In West Pakistan Colony in the district of Singhbhum, 220 houses had been constructed by giving liberal loans.
48. It is, therefore, evident that there is no fixed cut off year in the district which can be taken as the base year for the purpose of determination of local persons' of a State, nor there is anything on the record to suggest the exact year of publication of records of rights.
49. The person who or whose ancestors have settled in the State for more than 70 (seventy) years, even amongst them, discrimination has been made there being wide gap of preparation and publication of survey records in one or other district. There are districts or towns where even no such survey record was prepared.
50. Even the Government of Jhar-khand have accepted, vide their Resolution No. 05/Vividh-09/2001-Ka-4737 dated 19th August, 2002 that there are districts/ urban areas, where the records of rights have not been prepared though there may be the records of municipal/local bodies corresponding to the last survey are existing. In spite of the aforesaid facts, for the reasons best known to the State of Jharkhand, no benefits given to those whose or whose ancestors' names are appearing in the municipal or local bodies records.
51. Further, it will be evident that the Government of Jharkhand while issued Resolution No. 05/Vividh-09/2001-Ka-4737 dated 19th August, 2002, failed to notice the Reorganisation of State, as took from time to time, i.e. since the year, 1948. It is also failed to take into consideration the emigration as took place since long i.e. for more than fifty years and the refugees who were settled by the State in between the year 1947 and March, 1957.
52. The counsel for the State of Jharkhand also failed to satisfy as to how the concerned authority can determine the question of 'local persons' merely on the basis of identification by five Khatiyanis i.e. those whose or whose ancestors' names appearing in the records of rights, stated to have been prepared more than 70 (seventy) years back.
53. If the argument of Mr. P.P. Rao is accepted that a person residing for generation after generation (Pirhi dar Pirhi), means three generations, each accounting to thirty years i.e. ninety years in a row, it is not clear how such identification can be made by any person or fact can be verified by the competent authority, the maximum life period in India being much less than seventy five years.
54. For the reasons aforesaid, I have no hesitation to hold that the guidelines prescribed for determination of local persons' and issuance of certificate by the competent officer, vide Resolution No. 05/ Vividh-09/2001-Ka-4737 dated 19th August, 2002 is unjust, improper, arbitrary, unreasonable and unworkable.
Thus, the third question is answered, accordingly, against the State, in favour of the petitioners.
55. In view of the discussions and findings given above, I am of the opinion that :
(i) a person who is a non-resident -not a local person or is outsider, is not prevented from applying for consideration of his case for appointment against any Class III or IV posts in the State of Jharkhand, if otherwise eligible;
(ii) the part of the Resolution No. 05/Vividh-09/2901-Ka-4737 dated 19th August, 2002, giving preference to 'local persons' who are familiar with the local conditions such as local language, customs etc., is valid being constitutional and within the ambit of State Government to frame such guidelines/ rules; and
(iii) the definition of 'local persons' and guidelines prescribed for determination of 'local persons' vide Resolution No. 05/vividh-09/2001-Ka-4737 dated 19th August, 2002, both are unjust, unreasonable, unworkable, arbitrary, discriminatory and ultra vires to Articles 14 and 16 of the Constitution of India.
56. The definition of 'local persons' and guidelines prescribed for determination of local persons under the Resolution dated 19th August, 2002 are, accordingly, set aside.
57. However, it is open to the State of Jharkhand to redefine the 'local persons' and to re-prescribe the guidelines for determination of 'local persons' taking into account the relevant history of the State, such as, reorganization as taken from time to time; emigration of persons; as taken place during the last fifty years, settlement of refugees etc., as discussed above.
58. Both the writ petitions stand disposed of with the aforesaid observations. However, there shall be no order as to costs. Writ applications disposed of with observation.
M.Y. Eqbal, J.
I have had the privilege to go through the reasoned, lucid and elaborate judgment written by Hon'ble the Chief Justice. I have also gone through the judgment of Hon'ble Justice Mukhopadhaya who after concurring with judgment of the Hon'ble Chief Justice expressed his own views also. I fully concur and agree with the judgment written by the Hon'ble the Chief Justice and also the views expressed by brother Justice Mukhopadhaya.
Gurusharan Sharma, J.
I agree.
Lakshman Uraon, J.
I agree.