Allahabad High Court
Arushi Garg vs State Of U.P. And Another on 10 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 117
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 18 Case :- WRIT - A No. - 54969 of 2015 Petitioner :- Arushi Garg Respondent :- State of U.P. and Another Counsel for Petitioner :- S.D. Kautilya,Sa,Tahir Husain,Vashishtha Dhar Shukla Counsel for Respondent :- C.S.C.,Y.S. Bohra with Case :- WRIT - A No. - 42755 of 2014 Petitioner :- Iram Saba Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- S.D. Kautilya Counsel for Respondent :- C.S.C.,Virendra Chaubey with Case :- WRIT - A No. - 55928 of 2015 Petitioner :- Smt. Aabha Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- S.D. Kautilya,Agnihotri Kumar Tripathi,Anil Kumar Singh Bishen,Sa,Vashishtha Dhar Shukla Counsel for Respondent :- C.S.C.,Y.S. Bohra with Case :- WRIT - A No. - 56332 of 2015 Petitioner :- Renu Chaudhary Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Raj Priya Srivastava,Sa,Vashishtha Dhar Shukla,Vikas Mani Srivastava Counsel for Respondent :- C.S.C.,Y.S. Bohra with Case :- WRIT - A No. - 55892 of 2015 Petitioner :- Kumari Shilpi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- D.P. Rajbhar,Mr Ram Badan Maurya,Sa,Vashishtha Dhar Shukla Counsel for Respondent :- C.S.C.,Y.S. Bohra with Case :- WRIT - A No. - 67814 of 2015 Petitioner :- Harshita Rana Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Dinesh Prasad Rajbhar,Vashishtha Dhar Shukla Counsel for Respondent :- C.S.C.,Yogendra Singh Bohra Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri V. D. Shukla, learned counsel for petitioners, learned Standing Counsel for respondent no. 1 and Sri Y. S. Bohra, learned counsel for respondent nos. 2 and 3.
2. In all these six writ petitions, dispute is common, as such they are heard together and being decided by a common order.
3. Petitioners had approached this Court for a direction upon respondent State educational authorities for choice locking of primary school for post of Assistant Teacher (Math/ Science) under control of Basic Education Officer, Aligarh and not to single out them on basis of Clause 2 (Nationality and Domicile) of the Government Order issued by respondent no. 1 on 11.07.2013. Further relief has been sought for quashing of Clause 2 of Government Order dated 11.07.2013.
4. Facts of petitioner of Writ-A No. 54969 of 2015, as disclosed in writ petition are that she is a permanent resident of State since her birth. She completed her High School from U.P. Board in the year 2006 and, thereafter, passed Intermediate examination from same Board in the year 2008. She did her graduation in B.Sc, Honours (Math) from Aligarh Muslim University in the year 2011 and completed her B.Ed in 2012. She has also cleared Central Teacher Eligibility Test conducted by CBSC. All her testimonials have been brought on record as Annexures-2 to 6 to writ petition.
5. It appears that State Government on 11.07.2013 issued Government Order for appointing Assistant Teachers in Maths and Science in higher primary school of Basic Shiksha Parishad in the entire State. The said appointments were to be made in pursuance of U.P. Basic Education (Teachers) Service Rules, 1981.
6. Petitioner applied online on 19.09.2013. According to print out of application form, candidates were required to fill nationality in Column 14 and domicile in Column 18. As domicile certificate was required through Column 18, she applied before S.D.M., Aligarh on 14.10.2013. She appeared for counselling before respondent no. 3 along with her documents and in counselling held on 07.07.2014, she deposited her original certificates. A receipt was issued which has been brought on record as Annexure-11.
7. As per public notice dated 19.09.2015, respondent no. 3 had called upon all women candidates for giving option of school, but when she presented herself for choice locking, she was informed that her name had been deleted on the ground of date of issuance of domicile certificate. As the domicile certificate submitted by petitioner was dated 14.10.2013 i.e. after the date of submission of her online form on 19.09.2013, in view of Clause 2 of Government Order dated 11.07.2013, the same was not entertained.
8. Sri Ashok Khare, learned Senior counsel submitted that there is no requirement of domicile certificate in U.P. Basic Education (Teachers) Service Rules, 1981, except Rule 7 which provides for nationality. Relevant Rule 7 is extracted hereasunder:
7. Nationality. - A candidate for recruitment to a post mentioned in Rule 5 must be :
(a) a citizen of India; or
(b) a Tibetan refugee who came over to India before January 1, 1962 with the intention of permanently settling in India; or
(c) a person of Indian origin who has migrated from Pakistan, Burma, Sri Lanka, and East African countries of Kenya, Uganda and the United Republic of Tanzania (formerly Tanganayika and Zanzibar) with the Intention of permanently settling in India :
Provided that a candidate belonging to category (b) or (c) above must be a person in whose favour a certificate of eligibility has been issued by the State Government:
Provided further that a candidate belonging to category (b) will also be required to obtain a certificate of eligibility granted by the Deputy Inspector-General of Police, Intelligence Branch, Uttar Pradesh:
Provided also that if a candidate belongs to category (c), no certificate of eligibility will be issued for a period of more than one year and such candidate may be retained in service after a period of one year only if he has acquired Indian citizenship.
Note. - A candidate in whose case a certificate of eligibility is necessary but the same has neither been issued nor refused may be admitted to interview and he may also be provisionally appointed subject to the necessary certificate being issued in his favour.
9. He further submitted that by Government Order dated 11.07.2013 an unreasonable condition has been mentioned. He relied upon a judgment of this Court rendered in bunch of cases, Sumit and 14 others vs. State of U.P. and others, decided on 08.05.2019, wherein similarly stipulation has been placed, restricting recruitment process for appointment of Assistant Teachers in Basic Schools only to those who have resided in State of U.P. for a period of five years prior to date of their application. The Court, thereafter, held as under:
"19. Before dealing with the challenge to the impugned clause addressed on a constitutional plane and in light of Article 16(2), the Court is constrained to observe that the impugned stipulation never formed part of the original advertisement and notice inviting applications. Neither the Additional Advocate General nor Sri A.K. Yadav were able to draw the attention of the Court to any part of the advertisement or notice inviting applications which carried such a restriction. The clause admittedly came to be introduced for the first time in the 10 August 2018 communication of the Board and its consequential adoption and incorporation in the impugned Guidelines. By the time that this stipulation was introduced through the Guidelines, the selection process was already underway. All the petitioners had cleared the written examination whose results had been declared prior to its introduction. The respondents evidently chose to change the rules of the game after the recruitment process had commenced.
20. This Court is further of the considered view that the impugned clause cannot be sustained in light of the provisions of the 1981 Rules itself. Undisputedly the 1981 Rules make no provision restricting the field of eligibility of candidates only to those who may be residents of the State of U.P. In fact and to the contrary Rule 7 unambiguously prescribes that a candidate for recruitment to a post mentioned in Rule 5 thereof must be a citizen of India. It is thus manifest that all citizens of the Union irrespective of the State to which they may belong to or reside in are eligible to apply for appointment to posts prescribed under Rule 5. The impugned stipulation clearly restricts and in one sense reinvents the field of eligibility as statutorily prescribed by providing that a candidate must be one who has resided in the State of U.P. for a period of five years prior to application. This condition of eligibility which was introduced by the respondents does not find sanction under the 1981 Rules.
21. The submission made on the anvil of Rule 19(3) is also clearly misconceived. All that sub rule (3) prescribes is that a candidate who is selected for appointment must produce a residence certificate issued by a Tehsildar. Sub Rule (3) does not prescribe that the residence certificate must necessarily evidence the candidate being a resident of the State of U.P. The phrase ".... residence certificate issued by the Tehsildar" cannot possibly be read in aid or support of the impugned condition. A residence certificate can be issued by a Tehsildar of any of the States forming part of the Union. This Court, therefore, finds itself unable to either appreciate or countenance the submission as advanced by learned counsels for the respondents premised on this provision.
22. Additionally the Court notes that Rule 19 merely prescribes the procedure to be followed by the respondents while making an appointment upon culmination of the selection process. This rule neither deals with nor prescribes the eligibility criteria or makes any prescription in respect of residence or domicile. The essential eligibility conditions are prescribed by Rule 7. The educational qualifications are prescribed under Rule 8. The computation of quality point marks which determine inter se merit is controlled by Rule 14 (3) (a) and Appendix I. Rule 7 unambiguously entitles every citizen of India to apply for recruitment to a post mentioned in Rule 5. After completion of the selection process, successful candidates come to be included in the list prepared in terms of the provisions made in Rules 17, 17A and 18. Neither Rule 17 nor 17A or 18 place any restriction on the inclusion of the name of a successful candidate in the lists which are drawn up by providing that he or she must necessarily be a resident of the State of U.P. These rules also, at the cost of being repetitive, do not contain any negative stipulation ousting a candidate who is otherwise qualified on the ground that he is not a resident of the State of U.P.
23. Rule 19 (3) when it places the requirement of a selected candidate submitting a residence certificate must necessarily be read in light of Rule 7 since it is imperative for a selected candidate to establish that he or she is a citizen of India. It is to verify this aspect alone that the statute appears to place this requirement of submission of a residence certificate. It is also pertinent to note that Rule 7 also enables a Tibetan refugee who came over to India before 01 January 1962 with the intent of permanently settling in the Union or a person of Indian origin who had migrated from Pakistan, Burma, Ceylon or East African countries with the intent of permanently settling in India to be also eligible. This also is a clear indicator of the intent of the framers of the statute to expand the right to apply for appointment under the 1981 Rules to not only the citizens of India but also various others who may have come from outside the Union with the intent of permanently settling in India. It is thus evident and manifest that residence in a particular State or for that matter in the State of U.P. is not the determinative criteria for eligibility of candidates who seek employment as Assistant Teachers. Viewed in that light it is evident that the impugned clause in the Guidelines of 19 August 2018 is clearly ultra vires the 1981 Rules.
24. The impugned restriction is not only ultra vires the 1981 Rules but is also abhorrent to fundamental constitutional principles. Article 16(2) in unambiguous terms restrains the State from either discriminating or rendering a person ineligible for appointment or employment under the State only on the ground of residence or place of birth. The constitutional injunction which operates against the State in terms of Article 16(2) is absolute except to the extent that it stands diluted by Article 16(3). From a bare reading of clause (3) of Article 16, it is more than evident that Parliament alone is constitutionally enabled to make a law prescribing a residential requirement within a particular State in regard to a class of employment or appointment. It is thus evident that no individual State has the legislative competence to introduce or impose any such restriction. The intent of Article 16(2) is thus self-evident inasmuch as it is the unambiguous intention of the framers of the Constitution to make every office and employment under the State available to every citizen of the Union. It embodies the aim of the framers of the Constitution to open avenues of employment to all of its citizens irrespective of their residence or place of birth. The only power which stands conferred by the Constitution to impose a residential qualification stands vested exclusively in Parliament. It is in this light that the following observations as made in Kailash Chand Sharma assume significance :-
"13. 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 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 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 the residents of that district on a preferential basis. At this juncture it is appropriate to undertake a brief analysis of Article 16.
14. 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 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. Clauses (3) and (4) of Article 16 dilute the rigour of clause (2) by (i) conferring an enabling power on 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) insofar 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".
15. Let us now turn our attention to some of the decided cases. As far back as in 1969, a Constitution Bench of this Court in A.V.S. Narasimha Rao v. State of A.P. [(1969) 1 SCC 839 : (1970) 1 SCR 115] declared that the law enacted by Parliament in pursuance of clause (3) of Article 16 making a special provision for domicile within Telengana region of the State of Andhra Pradesh for the purpose of public employment within that region and the rules made thereunder as ultra vires the Constitution. Pursuant to the enabling power conferred under Section 3 of the Public Employment (Requirement as to Residence) Act, Rules were made making a person ineligible for appointment to a post within Telengana area under the State Government of A.P. or to a post under a local authority in the said area unless he had been continuously residing within the said area for a period of not less than 15 years immediately preceding the prescribed date. The Government issued an order relieving all "non-domicile" persons appointed on or after 1-11-1956 to certain categories of posts reserved for domiciles of Telengana under the A.P. Public Employment (Requirement as to Residence) Rules. Such incumbent of post was to be employed in Andhra region by creating a supernumerary post, if necessary. This legislative and executive action was struck down by this Court. After referring to Article 16, the Court observed:
"The intention here is to make every office or employment open and available to every citizen, and inter alia to make offices or employment in one part of India open to citizens in all other parts of India. The third clause then makes an exception.
*** 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 Governments."
The argument that a sweeping power was given to Parliament to make any law as regards residential requirement was repelled thus:
"By the first clause equality of opportunity in employment or appointment to an office is guaranteed. By the second clause, there can be no discrimination, among other things, on the ground of residence. Realising, however, that sometimes local sentiments may have to be respected or sometimes an inroad from more advanced States into less developed States may have to be prevented, and a residential qualification may, therefore, have to be prescribed, the exception in clause (3) was made. Even so that clause spoke of residence within the State. The claim of Mr Setalvad that Parliament can make a provision regarding residence in any particular part of a State would render the general prohibition lose all its meaning. The words ''any requirement' cannot be read to warrant something which could have been said more specifically. These words bear upon the kind of residence or its duration rather than its location within the State. We accept the argument of Mr Gupte that the Constitution, as it stands, speaks of a whole State as the venue for residential qualification and it is impossible to think that the Constituent Assembly was thinking of residence in districts, taluqas, cities, towns or villages. The fact that this clause is an exception and came as an amendment must dictate that a narrow construction upon the exception should be placed as indeed the debates in the Constituent Assembly also seem to indicate."
Thus, this Court was not inclined to place too wide an interpretation on Article 16(3), keeping broadly in view the constitutional philosophy."
10. On the other hand, Sri Y.S. Bohra, learned counsel appearing for respondent nos. 2 and 3 submitted that as Government Order dated 11.07.2013 has been issued by respondent no. 1, the same are binding upon U.P. Basic Shiksha Parishad. He further could not dispute the judgment rendered in case of Sumit and others (supra).
11. In reply Sri Khare submitted that in pursuance of judgment dated 08.05.2019, rendered by this Court in case of Sumit and others (supra), State Government had issued Government Order on 07.06.2019, wherein it has been directed that all the appointments shall be made in pursuance to 1981 Rules and requirement of condition of five years domicile has been withdrawn. This fact has not been disputed by counsel appearing for respondent nos. 2 and 3.
12. I have heard learned counsel for the parties and perused the material on record.
13. It is not in dispute that petitioners are not residents of State but their candidature was not considered due to fact that they had submitted domicile certificate after submitting form online. As appointment for the post of Assistant Teacher (Math and Science) are made in view of Rules, 1981 wherein Rule 7 only provides for nationality, while sub-clause 3 to Rule 19 provides only for residence certificate issued by Tehsildar but nowhere stipulates condition as given in Government Order dated 11.07.2013.
14. This Court while dealing with similar issue wherein recruitment process for appointment of Assistant Teachers in Basic Schools was under consideration and communication dated 10.08.2018 for the first time provided restriction which embodied that candidate should belong to State of U.P. and should be resident of the State for continuous five years prior to date of application.
15. This condition was struck down by this Court by judgment dated 08.05.2015 holding that it to be ultra vires the Rules 1981 and unconstitutional.
16. Issue in the present case is also the same and by Government Order dated 11.07.2013, a similar restriction has been placed in Clause 2 of Government Order which is as under:
"2. राष्ट्रीयता एवं निवास :- ऐसे अभ्यर्थी आवेदन हेतु पात्र होँगे जो भारत के नागरिक हो, तथा उत्तर प्रदेश में आवेदन की तिथि के पूर्व निरंतर ०५ वर्ष से निवास कर रहे हो| अभ्यर्थी का निवास प्रमाण पत्र आवेदन करने के तिथि से पूर्व सम्बंधित तहसील से निर्गत किया होना चाहिए | अभ्यर्थी द्वारा निर्धारित प्रारूप पर सक्षम स्तर से निर्गत निवास प्रमाण पत्र/ सत्यापन के समय चयन समिति के समक्ष प्रस्तुत किया जाना अनिवार्य होगा |"
17. Thus, in view of fact that Rules of 1981 does not provide for such restriction as has been brought by State through Government Order dated 11.07.2013, as Rule 7 speaks of only nationality while sub-rule 3 of Rule 19 merely prescribes procedure to be followed while making an appointment upon culmination of selection process. The Rule neither deals with nor prescribes eligibility criteria or makes any prescription in respect of residence or domicile.
18. As this Court in case of Sumit and others (supra) had already dealt this issue in depth ans similar restriction placed in communication dated 10.08.2018, was held to be ultra vires, similarly in view of above, writ petitions are consequently allowed. Clause 2 of Government Order dated 11.07.2013 is declared ultra vires 1981 Rules and unconstitutional.
19. All the candidates who had appeared in interview and were excluded on the ground for not having submitted the residence and domicile certificate, they are held to be eligible to be considered by respondents for appointment in accordance with provisions of Rules, 1981.
Order Date :- 10.1.2020/ V.S.Singh