Deependra Kumar Sharma Ors vs State (Personnel Department)Ors on 30 April, 2012

[Cites 17, Cited by 3]

Rajasthan High Court - Jaipur

Deependra Kumar Sharma Ors vs State (Personnel Department)Ors on 30 April, 2012

Bench: Arun Mishra

    

 
 
 

 
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR

:: ORDER:: 
D.B. CIVIL WRIT PETITION NO.6198/2012
Mahendra Kumar Sonwal
Vs.
State of Rajasthan & Ors.

D.B. CIVIL WRIT PETITION NO.4731/2012

Deependra Kumar Sharma & Ors.
Vs.
State of Rajasthan & Ors.

30.4.2012

HONBLE THE CHIEF JUSTICE MR.ARUN MISHRA
HONBLE MR. JUSTICE MAHESH BHAGWATI


Mr.Ravi Chirania,
Mr.Mahendra Shah with 
Mr.Vigyan Shah, for the petitioners.

Mr.G.S.Bapna, Senior Advocate, Advocate General with 
Mr.V.Garg for the respondents.

Reportable In the writ petitions, common prayer has been made to declare Section 89 of the Rajasthan Panchyati Raj Act, 1994 (hereinafter referred to as the Act of 1994), Rules 259(6) and 274 of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as the Rules of 1996) to be ultra vires. It has also been prayed that the advertisement dated 24.2.2012 issued for selection for the post of Teacher Grade III for special category (Visually Impaired) without providing reservation to the candidates of Scheduled Castes Category be declared illegal and quashed. Further prayer has been made in CWP No.6198/2012 that the State be directed to conduct the examination for the post of Teacher Grade III through Rajasthan Public Service Commission (in short, the RPSC).

The main grievance projected by the writ petitioners is that earlier under Section 89 the appointment of Teacher Grade III used to be made at State level through the RPSC. Petitioners have cleared the Rajasthan Teacher Eligibility Test. Section 89 of the Act of 1994 provides for constitution of Rajasthan Panchayat Samiti and Zila Parishad Service. Proviso to Section 89(1) has been deleted w.e.f.15.9.2010 and the amendment has been incorporated in sub-section (2) of Section 89 to include primary and upper primary school teachers. Sections 89(1) and 89(2) now provide that selection shall be made district-wise. Section 90(2)(a) of the Act of 1994 provides that the District Establishment Committee shall make selection of different grades and categories existing in the service in the Rajasthan Panchayat Samiti and Zila Parishad and districts. Provision of Section 90(2)(a) has also been amended w.e.f.15.9.2010 to confer the authority on the District Establishment Committee to make selection for the posts in different grades and categories, except the posts specified in clause (v) of sub-section (2) of Section 89 i.e.Prabodhak and Senior Prabodhak. It is also submitted that Chapter-12 of the Rules of 1996 deals with the recruitment and other service conditions. Rule 258(1)(c)(iv) provides that Primary and Upper Primary School Teachers shall be appointed by concerned District Establishment Committee. The said post has been included in Ministerial and subordinate post in Panchayat Samiti and Zila Parishad service. Proviso to sub-rule(6) of Rule 259 has been deleted by G.S.R. 61 dated 14.10.2010 w.e.f.19.10.2010. It has also been submitted that Rule 266(3) provides for academic qualification of recruitment as Teacher Grade III (Level-I & Level-II). Rule 270 to Rule 277 deal with the procedure for direct recruitment. Rule 273 provides for written test. It also provides that selection for the various posts shall be made in accordance with general directions given by the State Government from time to time in this regard. Rule 274(1) provides that the committee shall prepare a merit list of candidates found suitable for appointment to each grade or category of posts in the district and on receipt of requisition from the Rajasthan Panchayat Samiti and Zila Parishads allot candidates from list in the order in which their names occur in the list. Simultaneously under Rule 275, the State has reserved the right to allot the candidates in order of merit from the list of district where there are no vacancies to another district where there may be vacancies for appointment provided that the candidates are not available in the merit list of later district.

Petitioners have submitted that by making a provision of selection at district level, the examination shall be held on one day in all districts. Thus, the candidate would be able to apply only in one district out of 33 districts in which posts are available. Thus, the provision is arbitrary and discriminatory and the merit is going to be jeopardized; fair opportunity will not be given to those candidates who are meritorious to get selected; right of fair consideration is going to be hampered. Anomalous situation may arise. The provision for making selection through the RPSC and State-wise selection is appropriate which has been illegally amended/deleted. The candidate may have to travel to farther district to give examination which would also create financial difficulty. There should have been only one examination i.e.State level. It has also been submitted that the vacancies varies from district to district. In certain districts, eligible candidates may be less than the number of vacancies advertised. There is bound to happen regional conflicts. There is no restriction with the State to make State-wise selection. The amendment made is violative of Articles 14 , 16 and 21 of the Constitution of India. In CWP No.6198/2012, it has also been submitted that in Jaipur, vacancies have been advertised for visually impaired category. However in the said category, no reservation for Scheduled Caste category has been made. In case State-wise reservation is made, more posts would be available.

In the reply filed in CWP No.4731/2012, the State Government has contended that Article 243G, which has been brought into force w.e.f.24.4.1993, provides that the Legislature of a State empowers the Panchayat Raj Institutions to function as institutions of self-government and such law may contain provisions for devolution of powers and responsibilities upon panchayats at appropriate level, subject to such conditions as may be specified therein. In the Eleventh Schedule, Entry 17 deals with education including primary and secondary schools. The amendment has been made in Sections 89 and 90 on 15.9.2010. Thereafter, amendment has been made on 14.10.2010 in Rules 259, 266, 273 and 277A of the Rules of 1996. Now as per the amended provision, following consequences ensue:-

(i) employment is district-wise.

(ii) vacancies are district-wise.

(iii) selection and recruitment is district-wise by District Establishment Committee

(iv) Appointment is by Panchayat Raj Institution.

(v) State is not the employer but the employer is Panchayat Raj Institution.

Amended provisions are in consonance with the spirit of Article 243G of the Constitution. Recruitment of 41,000 teachers has to be made in various districts.

Mr.Mahendra Shah and Mr.Ravi Chirania, learned counsel appearing on behalf of the petitioners have submitted that the provisions of Sections 89 and 90 and the Rules which have been amended so as to provide district-wise selection is illegal and arbitrary. Earlier the selection used to be made through RPSC at State level, which was appropriate; meritorious candidates are going to suffer, they will not be able to stake their claim in various districts. They are being deprived of chance of staking claim as examination is going to be held on same day in all the districts. Thus the candidates are going to be deprived of due opportunity to appear in various districts as the examinations are going to be held on same day in all the districts. In view of Rule 275 which authorizes the State Government to allot candidates from one district to another. The selection ought to have been made at the State level. The amendment which has been incorporated suffers from arbitrariness and there is no rationale behind it. Reliance has been placed on decisions of the Apex Court in Radhey Shyam Singh & Ors. Vs. Union of India & Ors., (1997) 1 SCC 60 and P.Rajendran Vs. State of Madras & Ors., AIR 1968 SC 1012. It was also submitted in CWP No.6198/2012 that by not providing reservation to Scheduled Caste category candidates out of posts reserved for visually impaired category in the District of Jaipur is illegal and arbitrary. The reservation to Scheduled Caste category ought to have been provided in the aforesaid physically handicapped category.

Mr.G.S.Bapna, Senior Advocate, Advocate General appearing with Mr.V.Garg on behalf of the State has submitted that the amendment which has been made in the provisions is to confer the rights upon the district level panchayat bodies in consonance with the spirit of Article 243G of the Constitution. The appointing authority is the State level committee and the seniority shall be maintained at the district level. As such, the power of selection has also been conferred upon such bodies. There is no illegality in it and the provision cannot be said to be irrationale or discriminatory. It is open to the candidates to stake their claim in the district of their choice and there is not restriction to apply in any district. He has relied upon decisions of the Apex Court in K.G.Ashok & Ors. Vs. Kerala Public Service Commission & Ors., (2001) 5 SCC 419 and Arun Tewari & Ors. Vs. Zila Mansavi Shikshak Sangh & Ors, (1998) 2 SCC 332, wherein district level selections of such teachers have been upheld.

Provision of Section 89 prior to and after the amendment reads thus:

Prior to amendment:

89. Constitution of the Rajasthan Panchayat Samiti and Zila Parishad Service: (1) There shall be constituted for the State service designated as the Rajasthan Panchayat Samiti and Zila Parishad Service and hereafter in this section referred to as the service and recruitment thereto shall be made district wise.

Provided that selection for the posts specified in clause (iii) of sub-section (2) shall be made at the State level.

(2) The service may be divided into different categories, each category being divided into different grades, and shall consist of -

(i) Village level workers

(ii) Gramsevikas;

(iii) Primary and Upper Primary School teachers;

(iv) Ministerial establishment (except Accountants and Junior Accountants; and

(v) Prabodhak and Senior Prabodhak (3) The State Government may encadre in the service any other category or grade of officers and employees of Panchayat Samitis and Zila Paridhads and not included in Class IV Services.

(4) The State Government may prescribe the duties, functions and powers of each grade and each category of officers and employees encadred in the service.

(5) All appointments to posts in the service shall be made-

(a) by direct recruitment; or

(b) by promotion; or

(c) by transfer, (6) Appointment by direct recruitment on the posts specified in clauses (i), (ii) and (iv) of sub-section (2) and on the posts encadred under sub-section (2) and on the posts encadred under sub-section (3) shall be made by a Panchayat Samiti or Zila Parishad, as the case may be, in accordance with the rules made in this behalf by the State Government, from out of the persons selected for the posts in a grade or category in the district by the District Establishment Committee referred to in sub-section (1) of section 90.

6-A. Appointment by direct recruitment on the posts specified in clause (iii) of sub-section (2) shall be made by a Panchayat Samiti or Zila Parishad, as the case may be, in accordance with the rules made in this behalf by the State Government, from out of the persons selected for the posts by the Rajasthan Public Service Commission in accordance with the rules made by the State Government in this behalf:

Proviso that in case of the posts reserved for widows and divorcee women, selection shall be made in such manner and by such Screening Committee as may be prescribed by the State Government.

6-B. Appointment on the posts specified in clause (v) of sub-section (2) shall be made by Additional Chief Executive Officer cum- District Education Officer (Elementary Education) of the District concern in accordance with the rules made in this behalf by the State Government, from out of persons selected for the posts by the recruitment committee constituted by the Government in accordance with the rules made by the State Government in this behalf:

Provided in case of the posts reserved for widows and divorcee women, selection shall be made in such manner and by such screening committee as may be prescribed by the State Government.

(7) The Appointing Authority may, so long as selection is not made by the District Establishment Committee or selected persons are not available for appointment, make appointments in the prescribed manner on a temporary basis for a period not exceeding six months and the said period may be extended only after consultation with the District Establishment Committee:

Provided that no appointment on temporary basis shall be made on the posts specified in clause (iii) of sub-section(2).

(8) Appointments by -

(i) promotion shall be made by the Panchayat Samiti or the Zila Parishad, as the case may be, in the prescribed manner from amongst the persons whose names have been entered in the list prepared by the District Establishment Committee; and

(ii) transfer shall be made after consultation with the Pradhans or the Pramukhs, as the case may be of the Panchayat Samitis or the Zila Parishads from and to which such transfer is proposed to be made.

(8-A) Notwithstanding anything contained in sub-section (8), the State Government may transfer any member of the service from one Panchayat Samiti to another Panchayat Samiti, whether within the same district or outside it, from one Zila Parishad to another Zila Parishad, or from a Panchayat Samiti to a Zila Parishad or from a Zila Parishad to a Panchayat Samiti, and may also stay the operation of, or cancel, any order of transfer made under sub-section(8) or the rules made thereunder.

(9) Persons holding posts encadred in the service shall also be eligible for appointment or promotion to posts in a State Service or under the State Government in accordance with the rules made in that behalf by the State Government and subject to terms and conditions laid down in such rules, and the persons so appointed or promoted shall count the period of their holding posts in the service constituted under this section for the purposes of seniority and pension.

(10) Persons holding appointment in a state service shall also be eligible for appointment by transfer to a post encadred in the service constituted under this section in accordance with rules made in this behalf by the State Government and on terms and conditions laid down in those rules.

(11) Every person holding a post encadred in the service constituted under this section shall be entitled to the payment of a pension by the State Government out of the consolidated fund of the State in accordance with rules made by it in that behalf.

After amendment:

89. Constitution of the Rajasthan Panchayat Samiti and Zila Parishad Service: (1) There shall be constituted for the State service designated as the Rajasthan Panchayat Samiti and Zila Parishad Service and hereafter in this section referred to as the service and recruitment thereto shall be made district wise.

(2) The service may be divided into different categories, each category being divided into different grades, and shall consist of -

(i) Village level workers

(ii) Gramsevikas;

(iii) Primary and Upper Primary School teachers;

(iv) Ministerial establishment (except Accountants and Junior Accountants; and

(4) The State Government may prescribe the duties, functions and powers of each grade and each category of officers and employees encadred in the service.

(5) All appointments to posts in the service shall be made-

(a) by direct recruitment; or

(b) by promotion; or

6-a. (Deleted) 6-b. Appointment on the posts specified in clause (v) of sub-section (2) shall be made by Additional Chief Executive Officer cum- District Education Officer (Elementary Education) of the District concern in accordance with the rules made in this behalf by the State Government, from out of persons selected for the posts by the recruitment committee constituted by the Government in accordance with the rules made by the State Government in this behalf:

Provided in case of the posts reserved for widows and divorcee women, selection shall be made in such manner and by such screening committee as may be prescribed by the State Government.

(7) The Appointing Authority may, so long as selection is not made by the District Establishment Committee or selected persons are not available for appointment, make appointments in the prescribed manner on a temporary basis for a period not exceeding six months and the said period may be extended only after consultation with the District Establishment Committee:

Provided that no appointment on temporary basis shall be made on the posts specified in clause (iii) of sub-section(2).

(8) Appointments by -

(i) promotion shall be made by the Panchayat Samiti or the Zila Parishad, as the case may be, in the prescribed manner from amongst the persons whose names have been entered in the list prepared by the District Establishment Committee; and

(ii) transfer shall be made after consultation with the Pradhans or the Pramukhs, as the case may be of the Panchayat Samitis or the Zila Parishads from and to which such transfer is proposed to be made.

(8-A) Notwithstanding anything contained in sub-section (8), the State Government may transfer any member of the service from one Panchayat Samiti to another Panchayat Samiti, whether within the same district or outside it, from one Zila Parishad to another Zila Parishad, or from a Panchayat Samiti to a Zila Parishad or from a Zila Parishad to a Panchayat Samiti, and may also stay the operation of, or cancel, any order of transfer made under sub-section(8) or the rules made thereunder.

(9) Persons holding posts encadred in the service shall also be eligible for appointment or promotion to posts in a State Service or under the State Government in accordance with the rules made in that behalf by the State Government and subject to terms and conditions laid down in such rules, and the persons so appointed or promoted shall count the period of their holding posts in the service constituted under this section for the purposes of seniority and pension.

(10) Persons holding appointment in a state service shall also be eligible for appointment by transfer to a post encadred in the service constituted under this section in accordance with rules made in this behalf by the State Government and on terms and conditions laid down in those rules.

(11) Every person holding a post encadred in the service constituted under this section shall be entitled to the payment of a pension by the State Government out of the consolidated fund of the State in accordance with rules made by it in that behalf.

Provision of Section 90 prior to and after the amendment reads thus:

Prior to amendment:

90. Constitution and functions of the District Establishment Committee: (1) For each District, there shall be a District Establishment Committee consisting of the following

(i) Zila Pramukh, as the Chairman;

(ii) Chief Executive Officer; and

(iii)District Elementary Education Offcier (where the matter before the said committee relates to the appointment of, or disciplinary proceedings against, a teacher of a primary school); and

(iv) An officer nominated by the Competent Authority.

(2) The District Establishment Committee shall -

(a) make selection for the posts in different grades and categories [except the posts specified in clause (iii) and (v) of sub-section(2) of section 89] existing in the service in the Panchayat Samiti and the Zila Parishad in the district in accordance with the rules made by the State Government in this behalf;

(b) regulate the mode of temporary appointment and recommend the names of persons for extending such appointment beyond six months;

(d) Advise the Panchayat Samitis of the district and the Zila Parishad on all disciplinary matters affecting the officers and other employees thereof other than those referred to in sections 79 and 82, which may arise under section 91.

After amendment:-

90. Constitution and functions of the District Establishment Committee: (1) For each District, there shall be a District Establishment Committee consisting of the following

(i) Zila Pramukh, as the Chairman;

(ii) Chief Executive Officer; and

(iii)District Elementary Education Offcier (where the matter before the said committee relates to the appointment of, or disciplinary proceedings against, a teacher of a primary school); and

(iv) An officer nominated by the Competent Authority.

(2) The District Establishment Committee shall -

(b) regulate the mode of temporary appointment and recommend the names of persons for extending such appointment beyond six months;

Provisions of Rules 259(6) the Rules of 1996 prior to amendment and after amendment reads thus:

Prior to amendment:

259. Methods of Recruitment :

(6) Recruitment of posts en-cadred in Panchayat Samiti and Zila Parishad Services as per sub-section(2) of Section 89 shall be made districtwise through District Establishment Committee as per provisions of Section 80 and 90 of the Act.

Provided that the recruitment on the posts specified in clause (iii) of sub-section (2) of Section 89, shall be made through Rajasthan Public Service Commission at the State Level.

After amendment :

259. Methods of Recruitment :

(6) Recruitment of posts en-cadred in Panchayat Samiti and Zila Parishad Services as per sub-section(2) of Section 89 shall be made districtwise through District Establishment Committee as per provisions of Section 80 and 90 of the Act.

Provisions of Rules 274 the Rules of 1996 reads thus:

274. Preparation of a merit list by the Committee: (1) The Committee shall prepare a merit list of candidates considered suitable for appointment to each grade or category of posts in the district and shall on receipt of requisition from the Panchayat Samitis or Zila Parishads allot candidates from the listin the order in which their names occur in the list:

Provided that

(i) the number of candidates in the merit list prepared by the Committee shall not exceed one and a half time the number of vacancies actually available at the time of such merit list is prepared; and

(ii) the merit list of candidates so prepared shall remain valid for a period of one year in general and upto end of academic session for teachers, after expiry of such period, it will be deemed to have lapsed.

(2) The Panchayat Samitis or Zila Parishads shall take into consideration the requirement of Rule 261 while sending their requisitions to the Committee.

It is apparent from the provision of Section 89 and 89(1) that prior to amendment, selection for the post in question used to be made at state level through the RPSC. After the amendment made in the aforesaid section that the appointment is to be made at district level not through the RPSC. After amendment, Section 89(6) provides that the appointment by direct recruitment shall be made in accordance with the Rules made in this behalf by the State Government from out of the persons selected for the posts in a grade or category in the district by the District Establishment Committee referred to in sub-section (1) of Section 90. Section 90 which deals with the constitution and functions of the District Establishment Committee, empowers the District Establishment Committee to make selections for the posts in different grades and categories, except for the post of Prabodhak and Senior Prabodhak, as provided in Section 90(2)(a). Amended Rule 259(6) provides that recruitment of posts en-cadred in panchayat samiti and zila parishad services as per sub-section (2) of Section 89 shall be made district-wise through District Establishment Committee as per provisions of Sections 80 and 90 of the Act. Amended Rule 273 provides for written test. Earlier the proviso which was existing in Rule 259(6) of the Rules of 1996 has been deleted which provided for selection of such teachers through RPSC at State level.

Article 243G of the Constitution of India provides that the State may by law, endow the panchayats with such powers and authority as may be necessary to enable them to functions as institutions of self governance. Article 243G is quoted below:-

243G.Powers, authority and responsibilities of Panchayats- Subject to the provisions of this Constitution, the legislature of a State may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at appropriate level, subject to such conditions as may be specified therein, with respect to-

(a) the preparation of plans for economic development and social justice;

(b) the implementation of schemes for economic developments and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.

Powers which can be entrusted to panchayats include the matter listed in Eleventh Schedule and Entry 17 provides education, including primary and secondary schools.

It is open to the State Legislature to confer the powers to panchayats so as to enable them to act as an independent body in the matter of education, including primary and secondary schools which are included in Eleventh Schedule of Constitution Entry 17 which provides for primary and secondary education. The provision has been made in furtherance of the aforesaid objective.

It is not in dispute that earlier also appointments used to be made by the District Establishment Committee; selection which has to be made at State level through the RPSC of teachers Grade III (Level-I and Level-II). Admittedly, the post are not gazetted post. Seniority of such employees is maintained at district level, which is also not in dispute. Appointment used to be made district-wise and seniority of the incumbent used to be maintained at the district level. Since the posts are not gazetted, there is no rhyme or reason to conduct the selection through the RPSC. To confer such powers of appointment on panchayats is in consonance with the spirit of Article 243G of the Constitution, amendment has been made in Section 89, 90 and Rules 259(6), 266 and 277. Thus, the State cannot be said to have acted arbitrarily.

Learned counsel appearing on behalf of the petitioners have submitted that the Apex Court in Radhey Shyam Singh case(supra) has laid down that zone-wise selection would result in devaluation of merit at the selection examination by selecting a candidate having lesser marks over the meritorious candidate who has secured more marks and consequently rule of equal chance for equal marks would be violated. Such a process would not only be against the principles enunciated in Articles 14 and 16 of the Constitution but it would also result in heartburning and frustration amongst the young men. The Apex Court has laid down thus:-

6. Shri P.P. Rao, learned senior Counsel appearing for the appellants contended that the zone-wise process of selection adopted by the Commission did not provide equal opportunity to the candidates appearing in different zones though the competitive examination was same in all the zones. He submitted that since the vacancies available in each zone were not indicated, the appellants were denied the opportunity of appearing at the competitive examination from a center of a zone where the number of the vacancies was large there being more and better chances of selection. The appellants were thus denied the opportunity of competing with the candidates of other centers. It was submitted that the candidates appearing in a zone having large number of vacancies were declared selected though they had secured marks less than the candidates in other zones where the vacancies were less by reason of which the candidates securing even more marks than the candidates in other zones could not be selected. He, therefore, urged that the process and method of zone-wise selection of candidates adopted by the Commission was violative of Article14and16of the Constitution of India as it had resulted in selection of candidates of inferior quality in one zone while the candidates of superior merit in the other zones could not be selected. These arrangements were also adopted by the learned Counsel appearing in the other appeal and writ petitions. On the other hand Shri K.N. Shukla, learned senior counsel appearing for the respondents supported the process of selection and the impugned order of the Tribunal by contending that the zonewise selection was adopted in order to enable the candidates from a particular zone to be absorbed in the job in the same zone and the Commission has been recruiting the candidates to various posts on zonal basis right from 1975 and this process of selection has stood the test of time and, therefore, it could not be disturbed. He submitted that the composition of zone and scheme of holding the examination on zonal basis was given in the advertisement and the candidates were free to choose the zone from which they desired to appear in the recruitment examination and to choose the center. It was stated that since the appellants and the petitioners had appeared in the examination, but could not be selected and as such they cannot be permitted to challenge the process of selection now.

8. It is needles to emphasis that the purpose and object behind holding a recruitment examination is to select suitable and best candidates out of the lot and such an object can only be achieved by making a common select list of the successful candidates belonging to all the zones. On the other hand if zone-wise selection is made then various candidates who appeared in some of the zones and secured more marks than those who are selected from other zones would be deprived of their selection resulting into great injustice and consequent discrimination. Thus there can be said to exist no nexus between the aforesaid process of zone-wise selection and the object to be achieved, that is, the selection of the best candidates. That being so the process of selection as envisaged in paragraph 16 of the advertisement in question and reproduced in the earlier part of this judgment would lead to discriminatory results because by adopting the said process of zone-wise selection would result in the devaluation of merit at the selection examination by selecting a candidate having lesser marks over the meritorious candidate who has secured more marks and consequently the rule of equal chance for equal marks would be violated. Such a process would not only be against the principles enunciated in Article14and16of the Constitution but it would also result in heart burning and frustration amongst the young men of the country. The rule of equality of opportunity for every individual in the country is an inalienable part of our constitutional guarantee and that being so a candidate who secures more marks than another is definitely entitled to get preference for the job as the merit must be the test when selecting a candidate for recruitment for the posts which are advertised. In the present case admittedly the process of selection as envisaged in paragraph 16 of the advertisement in question is violative of Article14and16of the Constitution of India as it has been demonstrated from the marks list of the appellants placed before us at the Bar during the course of arguments that they had secured more marks than those secured by some of the selected candidates.

In the aforesaid case, when we consider the facts, scheme provided for holding examination as far as possible on zonal basis. There was no such policy to mandatorily providing the same at zonal basis. It was not a case dealing with power of Panchayats. The Apex Court has laid down in the said decision in para 10 of the report that if the government is keen to make zonewise selection after allocating some posts for each zone, it may make such scheme or rules or adopt such process of selection which may not clash with the provisions contained in Articles 14 and 16 of the Constitution of India having regard to the guidelines laid down by this Court from time to time in various pronouncements. Thus, the Apex Court itself has given the room for making the scheme or rules or adopt such process of selection which may not clash with the provisions of Articles 14 and 16 of the Constitution. Relevant portion of para 10 of the aforesaid decision is quoted below:-

. . . . .If the Government is keen to make zonewise selection after allocating some posts for each zone, it may make such scheme or rules or adopt such process of selection which may not clash with the provisions contained in Articles 14 and 16 of the Constitution of India having regard to the guidelines laid down by this Court from time to time in various pronouncements. . . .

Reliance has also been placed on decision of the Apex Court in P.Rajendran case (supra) wherein district-wise admission was made to the MBBS Course . The Apex Court has laid down that there was no clear violation of Article 15(1) for the district which the candidate may claim does not depend upon the place of his birth. Thus, Rule 8 cannot be struck down on the ground that it discriminates on the basis of place of birth of the candidate concerned. However at the same time, considering the fact that the object of selection is to secure best possible talent from the two sources so that the country may have the best possible doctors. Article 14 does not forbid classification but the classification has to be justified on the basis of the nexus between the classification and the object to be achieved, even assuming that the territorial classification may be a reasonable classification. Therefore as the object to be achieved in a case of the kind with which we are concerned is to get the best talent for admission to professional colleges, the allocation of seats district-wise has no reasonable relation with the object to be achieved. It is pertinent to reiterate that the Apex Court was considering the question of admission to MBBS Course which qualifies the process to be adopted. The Apex Court thus has observed that considering the case of the kind it has to be considered whether the provision violates Article 14. In the instant case, when we consider the facts, Panchyat Raj institutions have to act as an independent body, as per Article 243G appointment is to be made by them and seniority is to be maintained at district level, appointment was to Teacher Grade III there was no rhyme or reason to deny them power to select also. In furtherance of the objective of Article 243G of the Constitution, powers have been conferred upon such bodies which cannot be said to be in violation of Articles 14 or 16. Since it is open to each of the candidate to apply in any of the district of their choice, it cannot be said that they are being deprived of the fair opportunity to stake their claim. They have the choice to select any district where they want to stake their claim. However, since the examination is going to be held on same day in all the districts obviously, they cannot participate in various districts. Such a provision cannot be said to be discriminatory as it is equal for all giving choice to the candidate to stake claim at a particular district is available. Same question has come up for consideration before the Apex Court in K.G.Ashok case (supra) in which the Apex Court has considered district-wise selection to be made as the government has introduced decentralization of recruitment to the lower ministerial cadre in various departments to district level vide order dated 27.5.1971. The problem came up was that if the candidates are allowed to apply to more than one district in response to the same notification, they have to be allowed to appear in the tests to be conducted in different districts on different dates and subsequently, if they find a berth in the ranked list relating to more than one district, they will have to forego appointment in district/districts other than one when the occasion arise and the same would defeat the very purpose of the government order and would put the Commission in an embarrassing situation and cause administrative difficulties. Therefore, the candidates are permitted to apply for one district only in one notification. The Apex Court has, therefore, laid down that though a candidate is prohibited from applying in more than one district, he is free to choose any district of his choice. The right of the candidate is not curtailed as he/she is not prevented from choosing the district. At the same time, if every person is permitted to apply for all districts the number of applications received by the Commission will be 14 times the number of applications now being received, It would result in futile exercise being performed in several districts. The restriction in question does not tantamount to denial of opportunity to a candidate for applying to any post. The Apex Court in K.G. Ashok(supra) has laid down thus:

12. It appears that the government introduced decentralisation of recruitment to the lower ministerial cadre in various departments and teaching posts in Education Department to district level vide G.O. (MS) No.154/71 dated 27.5.1971 with a view of avoid administrative inconvenience caused due to dearth of recruits in such cadres in northern districts of Kerala. It was with this intention that Government stipulated conditions restricting inter district transfers vide Government Order dated 27.5.1971. However, while implementing the decentralisation, a lot of practical problems cropped up before the Commission. If candidates are allowed to apply to more than one district in response to the same notification, they have to be allowed to appear in the test to be conducted in different districts on different dates and subsequently, if they find a berth in the ranked list relating to more than one district, they will have to be advised for recruitment from more than one district if the occasion arises. A candidate who is appointed in one district will have to forego appointment in another district and the same defeats the very purpose of the aforementioned Government Order. The circumstances as detailed above would put the Commission in an embarrassing situation and cause administrative difficulties. The situation would assume fresh dimensions if it allowed to prevail in the present day district-wise selections. Therefore, the candidates are permitted to apply for one district only in one notification. It is in order to avoid such exigencies and to facilitate a feasible selection process, the Commission issued orders to the effect thatcandidates are prohibited from applying to more than one district for the post notified in one and the same notification. Accordingly, in the notification inviting applications for district-wise selection, specific instructions are incorporated to the effect that candidates should not send applications for the post in more than one district and his failure to observe the same would entail rejection of application of such a person apart from taking other actions enumerated above.

13. Though a candidate is prohibited from applying in more than one district, he is free to choose any district of his choice and thus the only thing is that the candidate is not entitled to apply for the same post in more than one district at a time. Here, the right of the candidate is not curtailed as he/she is not prevented from choosing the district of his/her choice. At the same time, if every person is permitted to apply for all districts the number of applications received by the Commission will be 14 times the number of applications now being received with the result that the Commission will be doing a futile exercise of selection work in the other 13 districts, as a candidate can after all accept appointment in only one District. Considering all these aspects the Commission has imposed the restriction on candidates from applying in more than one district in response to one and the same notification. The restriction does not tantamount to the denial of opportunity to a candidate for applying to any post.

The Apex Court has also considered the decisions in the cases of Radhey Shyam Singh (supra) and P.Rajendran (supra) and has held that none of the decisions has any application to the facts of that case as there is nothing to show that more meritorious persons have been deprived of employment whereas persons of inferior merit have been selected. The Apex Court further held that apart from the fact that necessary facts leading to discrimination have not been pleaded, there is absolutely no material to show that a case of discrimination is made out and accordingly, the submission raised was found to be without substance.

In the instant case, it has been submitted by Mr.Shah, learned counsel appearing on behalf of the petitioners that they have placed on record the record result of the Rajasthan Patwar Examination which was held in various districts and other documents to indicate that the merit was affected as lesser meritorious candidates have been selected in various districts in similar procedure for selection.

In our opinion, the submission which has been raised on the basis of patwar examination cannot be accepted. Firstly, the post in question is different and when the examination is going to be held in all the districts, merit and performance of each district has to be taken into consideration and the petitioners cannot compare their merit on the basis of performance and marks obtained in various other districts by some other candidates. Thus we find the submission to be baseless especially when the examination has not been held so far and the plea raised has no legs to stand.

The Apex Court in Arun Tewari case (supra) has considered the question of recruitment of Assistant Teachers under Operation Black Board Scheme. Statutory recruitment rules providing for recruitment of Assistant Teachers through a competitive examination and after interviewing them, normal channel was Junior Service Selection Board. However in order to fill up about 7000 posts under a time-bound scheme (Operation Blackboard), statutory rules were amended and decision was taken to fill up vacancies districtwise by calling candidates from district employment exchanges without involving the Selection Board. Selection process was challenged by the candidates who did not possess the prescribed qualifications. It was held by Their Lordships of the Apex Court that the method adopted in the exigencies of service was not unfair. The Apex Court has laid down thus:-

20. The next contention relates to inviting applications from Employment Exchange instead of by advertisement. This procedure has been resorted to looking to the requirements of a time-bound scheme. The original applicants contended that if the posts had been advertised, many other like them could have applied. The original applicants who so complain, however, do not possess the requisite qualifications for the post. As far as we can see from the record, nobody who had the requisite qualifications, has complained that he was prevented from applying because advertisement was not issued. What is more important, in the special circumstances requiring a speedier process of selection and appointment, applications were invited through employment exchanges for 1993 only. In this context, the special procedure adopted is not unfair. The State has relied upon the case of Union of India and Ors. v.N. Hargopal where Government instruction enjoining that the field of choice should, in the first instance, be restricted to candidates sponsored by the Employment Exchanges, was upheld as not offending Articles14and16of the Constitution. In the case of Delhi Development Horticulture Employees' Union v.Delhi Administration, this Court approved of recruitment through Employment Exchanges as a method of preventing malpractices. But in the Subsequent and more recent case of Excise Superintended Malkapatnam, Krishna District A. P. v.K.B.N. Visweshwara Rao this Court has distinguished 'Union of India v. Hargopal on the basis of special facts of that case. It has observed that the better course for the State would be to invite applications from employment exchanges as well as to advertise and also give wide publicity through TV, Radio etc. The Court had to consider whether persons who had applied directly and not through employment exchange should be considered. This Court upheld their claim for consideration.

21. There are different methods of inviting applications. The method adopted in the exigencies of the situation in the present case cannot be labelled as unfair, particularly when, at the relevant time, the two earlier decisions of this Court were in vogue.

In view of the aforesaid discussion, we are of the considered opinion that the amendment made in Section 89 and 90 and Rules 259(6) & 274 of the Rules of 1996 cannot be said to be ultra vires to Articles 14 and 16 of the Constitution of India; the same is in consonance with the spirit of Article 243G of the Constitution.

It was also submitted that Rule 275 of the Rules of 1996 provides that allotment of the candidates shall be made by the State Government in order of merit from the list of a district where there are no vacancies to another district where they may be vacancies for appointment, provided that the candidates are not available in the merit list of the latter district. Now appointment is being made on the basis of district level selection this provision of Rule 275 was enacted when state-wise selection used to be made and the candidates used to be allotted district of their choice. The submission raised is baseless as now the selections are going to be made on district level and exigency as on today of making such allotment from one district to another district has not arisen and State has not invoked the said provision. Thus, the submission raised on Rule 275 is untenable.

It was also submitted that the provision has not been made for providing reservation to Schedule Caste category candidates in posts reserved for visually impaired category in Jaipur. Physically handicapped reservation is horizontal reservation; vertical reservation cannot be claimed by such categories as posts have been reserved for physically handicapped persons. Petitioners can stake claim and get selected in the said category after vertical reservation is worked out. Horizontal one has to be applied as laid down by Hon'ble Supreme Court in Rajesh Kumar Daria Vs. Rajasthan Public Service Commission & Ors., (2007) 8 SCC 785. In State level exam more number of posts would have been available cannot make the provision of Sections 89 & 90 of the Act of 1994 and Rules 259(6) & 274 of the Rules of 1996 as ultra vires. Reservation has to depend upon number of posts available in District and as per that reservation has been made.

In view of the above discussion, we find no merit in the writ petitions and the same are hereby dismissed. Stay application No.5210/2012 is also dismissed.

(MAHESH BHAGWATI),J. (ARUN MISHRA), CJ.

Skant/-

All the corrections made in the judgment/order have been incorporated in the judgment/order being emailed.

Shashi Kant Gaur, PA

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Rajasthan High Court - Jaipur