Rajasthan High Court - Jaipur
Dinesh Singh vs Rajasthan State Electricity Board And ... on 14 July, 2003
Equivalent citations: RLW2004(1)RAJ320
JUDGMENT Garg, J.
1. Both the above writ petitions are being decided by this common order as in both of them common questions of law are involved.
FACTS OF WRIT PETITION NO. 2319/1998
2. This writ petition has been filed by the petitioner under Article 226 of the Constitution of India against the respondents on 13.7.97 with a prayer that by an appropriate writ, order or direction the respondents be directed to offer appointment to the petitioner on the post of Electrician as the appointment had already been given to the less meritorious candidates to the petitioner and further the appointment of respondent No. 4 to 6 who were less meritorious than the petitioner be declared illegal and be quashed.
3. The facts of the case as put forward by the petitioner are as under:
i) That the petitioner passed the High School Examination from the Secondary Education Council, Uttar Pradesh in the year 1987 and the Intermediate examination from the same Board in the year 1995. The petitioner also possessed the ITI certificate in electrical issued by the Principal of ITI, Barely, Uttar Pradesh which is under the control of State Vocational Training Council, Uttar Pradesh. Copies of mark-sheets of the High School, Intermediate and ITI have been produced as Annex. P/1 to P/3 respectively.
ii) That the petitioner got registered his name with the Employment Exchange, Hanumangarh in the year 1997 vide registration card (Annex. P/4).
iii) That further case of the petitioner is that he was also having experience certificate dtd. 26.6.1997 (Annex. P/5) as electrician issued by the Rajasthan State Sahkari Spinning and Ginning Mills Federation, Hanumangarh.
iv) Further case of the petitioner is that in the month of January, 1998, the respondent No. 2 (Joint Director Personnel (I.R.), RSEB, Jaipur) invited applications for the post of Electrician to be posted under the respondent No. 3 (Chief Engineer (STPS), RSEB, Suratgarh).
v) Further case of the petitioner is that panel of suitable candidates was called from the employment exchange Hanumangarh and Sri Ganganagar. The said panel was called for 40 vacancies of Electrician which were under the respondent No. 3 (Chief Engineer (STPS), RSEB, Suratgarh). As the name of the petitioner was registered with the Employment Exchange, Hanumangarh, his name was sent by the employment exchange to the respondent No. 2 (Joint Director Personnel (I.R.), RSEB, Jaipur) for the post of Electrician.
vi) That on 7.2.98, the petitioner was intimated by the respondent No. 2 (Joint Director Personnel (I.R.) RSEB, Jaipur) to fill up the application form for the post of Electrician and to appear for interview on 24.2.1998 along with the requisite documents mentioned in the letter dtd. 7.2.98 (Annex. P/6).
vii) Further case of the petitioner is that in pursuance of letter dtd. 7.2.98, the petitioner submitted his application form along with all the requisite documents desired by the respondent No. 2 (Joint Director Personnel (I.R.), RSEB, Jaipur) and he was interviewed on 5.3.98 for the post of Electrician.
viii) Further case of the petitioner is that the selection on the post of Electrician was to be made purely on the merit basis i.e. the marks obtained by the candidates in their educational qualifications, but there were no marks for the interview.
ix) Further case of the petitioner is that as per the educational qualification, the petitioner's total percentage was 68.28, whereas respondent No. 5 (Pawan Kumar) was having 67.85% and respondent No. 6 (Ram Dass) was having 67.14%, Further respondent No. 4 (Jagdish Prasad) was having equal marks with the petitioner, but he had no experience. Thus, the petitioner was having more marks than respondents No. 5 and 6 and equal marks with respondent No. 4.
x) Further case of the petitioner is that the respondents issued a list (Annex. P/7) of selected candidates in which the names of respondents No. 4 to 6 were shown at serial No. 20, 21 and 25.
xi) Further case of the petitioner is that the persons having less marks than the petitioner were selected for the post of Electrician whereas the name of the petitioner had not been included in the select list. Hence, this writ petition with the abovementioned prayer.
4. In this writ petition, the main submission of the learned counsel for the petitioner is that since respondents No. 4 to 6 who were less meritorious than the petitioner, had been selected on the post of Electrician, denial of appointment to the petitioner on the post of Electrician is violative of Articles Hand 16 of the Constitution of India.
5. Reply to the writ petition was filed by the respondent No. 1 to 3 admitting that no doubt the petitioner had secured more marks in comparison to respondents No. 5 and 6 and the petitioner had equal marks with the respondent No. 4, but since the petitioner was not bonafide resident of Hanumangarh/Sri Ganganagar and since he had passed the examinations of High School, Intermediate and ITI from Uttar Pradesh, therefore, he was not selected and hence writ petition be dismissed.
6. Heard the counsel for the parties.
7. There is no dispute on the point that the petitioner's percentage was higher than the percentage of respondents No. 5 and 6 and he was having equal marks with the respondent No. 4.
8. There is also no dispute on the point that the petitioner passed his High School, Intermediate and ITI from Uttar Pradesh.
9. There is also no dispute on the point that his name was registered with the employment Exchange, Hanumangarh vide registration card (Annex. P/4).
10. There is also no dispute on the point that through letter dtd. 7.2.98 (Annex. P/6) issued by the respondent No. 2 (Joint Director Personnel (I.R.), RSEB, Jaipur) the petitioner was called for interview and as per letter dtd. 7.2.98 (Annex. P/6) the conditions which were required to be fulfilled by the petitioner were that he must have passed Secondary, Higher Secondary and certificate of ITI etc. The petitioner had fulfilled all these three conditions, but no doubt he had passed all the above three examinations from Uttar Pradesh. However, in the letter dtd. 7.2.98 (Annex. P/6) there is no mention of the fact that the petitioner must have passed the above examinations from Rajasthan.
11. The condition No. 6 of the letter dtd. 7.2.98 (Annex. P/6) is that the candidate must be bonafide resident of Hanumangarh/Sri Ganganagar. On the basis of condition No. 6 mainly, the petitioner was denied appointment.
12. The question which arises for consideration is whether in the facts and circumstances of the present case, denial of appointment to the petitioner on the basis of residence is violative of Article 14 and 16 of the Constitution of India or not.
13. So far as the argument that the petitioner did not pass Secondary a Higher Secondary from Rajasthan is concerned, such a condition is not found in the letter dtd. 7.2.98 (Annex. P/6) and apart from this Court in the case of Gauri Shankar v. State Bank of India (1) has held that denial of employment on the ground of not passing secondary or higher examination from the State of Rajasthan is the condition which denies equal opportunity of employment and hence runs counter to the provisions of Article 14 and 16 of the Constitution of India. Thus, this argument raised by the learned counsel for the respondents does not stand to scrutiny and is rejected.
14. Full Bench of this Court in the case Deepak Kumar Suthar v. State of Rajasthan (2), has held that awarding of bonus marks on the ground of residence in urban and rural areas for recruitment in public employment in the State Services is not permissible on the ground of place of birth of residence and is void ab initio. From this point of view, the condition No. 6 contained in the letter dtd. 7.2.98 (Annex. P/6) becomes violative of Articles 14 and 16 of the Constitution of India and thus, carries no weight.
15. The Hon'ble Supreme Court in the case of Kailash Chand Sharma v. State of Rajasthan (3), while interpreting Articles 14 and 16 of the Constitution of India has observed as under:
"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. We have not 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 the constitutional ethos founded on unity and integrity of nation. Attempts to prefer candidates of a local area in the State were nipped in the bud by this Court since long past. We would like to reiterate that residence by itself be it be within a State, region, district or 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 Districts with a view to offer employment to tilt residents of that district on a preferential basis."
16. Thus, classification on the basis of residence for the purpose of offering public employment is violative of Article 14 and 16 of the Constitution of India.
17. In view of the law laid down by the Hon'ble Supreme Court in the case of Kailash Chandra (supra) and in view of the law laid down by full bench of this Court in the case of Deepak Kumar Suthar (supra) the submission of the learned counsel for the respondents that the petitioner was denied appointment on the ground that he was not bonafide resident of Hanumangarh/Sri Ganganagar cannot be accepted and is rejected.
18. Thus, since the petitioner was having more marks than respondents No. 5 and 6 and equal marks with respondent No. 4, the petitioner's right to be appointed to the post has been illegally taken away by the respondents, and therefore, the petitioner is also entitled to be offered appointment on the post of Electrician as his legal right has been infringed.
19. Before parting with the judgment, it may be stated here that so far as question of appointment to respondents No. 4 to 6 is concerned, since they are in service for more than 5 years, therefore, it would not be proper now to quash their appointment and it would be in the interest of justice that the petitioner is also offered appointment in the same manner as was given to respondents No. 4 to 6.
20. For the reasons mentioned above, the present writ petition deserves to be allowed in the manner that the respondents No. 1 to 3 are directed to offer appointment to the petitioner in the same manner as was given to the respondents No. 4 to 6.
Accordingly this writ petition is allowed and the respondents No. 1 to 3 are directed to offer appointment to the petitioner on the post of Electrician pursuant to letter dtd. 7.2.98 (Annex. P/6) issued by the respondent No. 2 (the Joint Director Personnel (I.R.), RSEB, Jaipur within a period of 2 months from today, subject to other eligibility criterion. It is however made clear that on his appointment, the petitioner shall not be entitled for the emoluments of the post for the past, but he will be entitled to claim seniority over the persons who were lower in merit but have been offered appointment prior to him.
No order as to costs.
WRIT PETITION NO. 4963/200021. In this writ petition, the learned counsel for the petitioners have made a prayer that selection on the post of Technician Grade III should have been made on the basis of residence. In other words the plea which was taken by the respondents in writ petition No. 2319/1998 has been taken by the petitioners in the present writ petition. Since the plea taken by the petitioners in this writ petition has been rejected while deciding writ petition No. 2319/1998, therefore, this writ petition deserves to be dismissed in light of the observations made in writ petition No. 2319/1998.
Accordingly, this writ petition No. 4963/2002 is dismissed in light of the observations made in writ petition No. 2319/1998.
No order as to costs.