A.K Ganguly, C.J:— These three Writ Petitions have been filed with a prayer for declaring Clause 4.1 of the advertisement which is under Annexure 6 to W.P(C) Nos. 14981 and 14133 of 2006 and Annexure-3 to W.P(C) No. 1855 of 2007 as illegal, discriminatory and unconstitutional being violative of Articles' 14 and 16 of the Constitution of India. The Petitioners in these Writ Petitions claim that they have requisite qualification and eligibility for being appointed in the post of Swechhasevi Sikshya Sahayak and they intend to make application for such posts. But, in view of the impugned Clause 4.1 in the advertisement, which seeks to confine such appointment only to the residents of the block in question in which the appointment will take place, they cannot make the application.
2. The advertisement in question is in Oriya language, but the same has been translated into English. The relevant clause which is impugned in these Writ Petitions is as follows:
“4.1 For engagement of block unit wise Sikshya Sahayak, there will be a selection committee under the Chief Executive Officer-cum-Collector under the Zilla Parishad. In the Committee the concerned Inspector of Schools, District Inspector of Schools, District Welfare Officer, District Employment Officer, District Project Co-ordinator (S.S.A) will be the members of the Committee. The concerned District Project Co-ordinator/(SSA) will be the convenor of the Committee.”
3. The said Clause 4.1 came into existence by virtue of the Resolution which was initially dated 31.5.2006, but the same was amended by corrigendum dated 12.10.2006 By the said corrigendum the words “block unit” have been substituted in place of the words “education district”. The expression “block unit” means the Panchayati Raj Block as defined by the Panchayati Raj Department and includes the Urban Local Bodies situated in the same Block headquarters or adjoining to the same block headquarters. Explaining such restriction in the advertisement and corrigendum, in the counter affidavit filed by the State, it has been stated that Swechhasevi Sikhya Sahayaks will be engaged Unit-wise within the block to which they belong.
4. The so called justification for such stipulation in the matter of engagement is that the Swechhasevi Sikhya Sahayaks will remain accountable to Panchayati Raj institutions and Village Education Committee, who will control, certify, monitor and supervise the functioning of the school. It has been further stated that if the persons who are staying at a distance from their native village are engaged that will give rise to absenteeism and poor quality of education.
5. Learned Counsel for the Petitioners has submitted that such stipulation in the advertisement is wholly violative of the provisions contained in Article 16 of the Constitution of India. Learned Counsel for the Petitioners has relied on the provisions of Article 16(2) of the Constitution of India and urged that the Constitution gives fundamental right to every citizen to equal opportunity in the matter of employment or appointment under the State. It has further been asserted that no citizen shall be subjected to any discrimination on the various grounds and one of such ground is the place of residence. In the instant case, the discrimination on the ground of residence which has been prohibited in the Constitution is being introduced at the instance of the State.
6. In support of his aforesaid contention, Learned Counsel for the Petitioners has relied, on several Judgments. The first decision on which reliance is placed was delivered by the Constitution Bench of the Hon'ble Supreme Court in the case of A.V.S Narasimha Rao v. The State of Andhra Pradesh, reported in (1969) 1 SCC 839 : AIR 1970 SC 422. In that Judgment the Learned Judges held that it is only the Parliament which can make the law in a special case under Clause (3) of Article 16 prescribing any requirement as to residence within a State or Union Territory prior to appointment, as a condition of employment in the State or Union Territory. Such power is conferred on the Parliament and is denied to the Legislature of the States under Article 35(a) of the Constitution. The State, therefore, has no right to make a law restricting the appointment on the ground of residence. In the instant case, nothing has been brought to our notice by the Learned Counsel for the State that the Central Government has made any law. In the aforesaid decision, in A.V.S Narasimha Rao (supra), the Hon'ble Supreme Court held 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 while framing the Constitution thought of question of residence in terms of Districts, Taluqas, Cities, Towns or Villages.
7. Learned Counsel for the Petitioners also relied on another decision of the Hon'ble Supreme Court in the case of Nidamarti Maheshkumar v. State of Maharashtra, reported in (1986) 2 SCC 534 : AIR 1986 SC 1362. That was a case relating to admission to the MBBS Course on the basis of Rules framed by the State of Maharashtra. In that case in the Rules which have been framed for admission to the MBBS Course in the State of Maharashtra, it was made clear that the persons from one region should not be allowed to take admission in the medical college or colleges in another region. The Hon'ble Supreme Court held that the region-wise scheme adopted by the State Government in Rule B(2) clearly results in denial of equal opportunity which is violative of Article 14 of the Constitution. This observation is made in paragraph 6 at page 1367 of the report. We are of the opinion that though that was a case relating to admission on the basis of region, same principle will apply in the case of appointment considering the protection as has been given to the citizens of this country under Article 16(1) and Article 16(2) of the Constitution.
8. The next decision on which reliance has been placed by the Learned Counsel for the Petitioners was rendered in the case of Govind A. Mane v. State of Maharashtra, reported in (2000) 4 SCC 200 : AIR 2000 SC 1576. That was also a case of admission to B. Ed. Course on the basis of district-wise quota and its legality was challenged before the Hon'ble Supreme Court. In the said case the Learned Judges of the Supreme Court held that fixation of such quota is violative of Article 14. In delivering the said Judgment, the Learned Judges held that the district-wise distribution of seats is violative of Articles 14 and 15 of the Constitution.
9. Reliance was also placed by the Learned Counsel for the Petitioners on another Judgment of the Hon'ble Supreme Court in the case of Kailash Chand Sharma v. State of Rajasthan, reported in (2002) 6 SCC 562 : AIR 2002 SC 2877. Particular reference was placed on paragraph 38 at page 2892 of the report. That was a case relating to appointment and the Hon'ble Supreme Court made it clear that the weightage on the ground of residence is an impermissible consideration and is violative of Article 16 of the Constitution. The Hon'ble Supreme Court went to the extent of saying that the argument in favour of such reservation which has the overtones of parochialism and is liable to be rejected on the plain terms of Article 16(2) and in the light of Article 16(3). This observation was made by the Hon'ble Supreme Court in paragraph 14 of the report. In that case the reservation was limited to the award of bonus marks to the residents of a particular district. Even that was found by the Supreme Court to be improper. In the instant case, there is total prohibition of appointment of any one staying outside the block unit.
10. Learned Counsel for the State-Opposite Parties has defended the aforesaid restriction on appointment contending that the same is a policy decision of the State Government and in such policy decision the Court's jurisdiction to interfere is limited.
11. This Court accepts that in policy matters Court has to be slow and circumspect before interfering with the same. But the Government's right to frame a policy is always subject to Constitutional mandate. If the complaint, as in this case, is that the said mandate is flouted, it is only the Court which can examine the same and the Court is duty bound to do so.
12. Learned Counsel for the State further submitted that this is not a public service. The appointment is contractual and therefore, Articles 14 and 16 will not apply. This Court is unable to accept the aforesaid contention.
13. This Court finds from the materials which have been annexed to the counter affidavit filed by the State in W.P(C) No. 14133 of 2006 that Swechhasevi Sikhya Sahayaks are engaged in each block unit of every education district by the selection committee headed by the Collector-cum-Chief Executive Officer. After completion of four years the said Sikhya Sahayaks will be entitled to be appointed as Junior Teachers by the Zilla Parishad (para 9 of the Resolution) and after completion of five years of continuous service such Junior Teachers will be eligible for appointment as regular Primary School Teachers by the Zilla Parishad. Therefore, the entry to such appointment may be as Swechhasevi Sikhya Sahayak, but it is those Sikhya Sahayaks who are to become Junior Teachers and subsequently as regular Primary School teachers. Therefore, if the entry to the appointment is made block-wise any person who is staying outside the block is deprived of getting appointed to the post which ultimately matures as regular Primary School Teachers. Therefore, this is a camouflage and actually appointment is made to public service. As such Articles 14 and 16, of the Constitution are clearly attracted. From Clause 8 of the Resolution it appears that teaching is the main duty of Swechhasevi Sikhya Sahayaks and virtually they are given poor remuneration for such contractual appointment and after rendering continuous service for nine years they become are eligible for being appointed as regular primary school teachers and this is in the nature of public service. Learned Counsel for the State has urged that such appointment is made in order to check absenteeism. In other words, it has been said that those persons who are staying away from the block in which they are appointed usually remain absent and the quality of education suffers.
14. Similar argument was advanced by the Learned Counsel for the State to the effect that in the case of Kailash hand Sharma (supra). The Hon'ble Supreme Court after noting such argument in paragraph 37 rejected the same outright by saying that such an argument, does not stand scrutiny. It is well known that if there are cases of unatuthorized absenteeism the matter has to be controlled by the appropriate authority in accordance with service regulations. That apprehension cannot justify State's action of transgressing the Constitutional provisions.
15. Learned Counsel for the State has relied on a few decisions, namely, the decision of the Hon'ble Supreme Court in the case of Dr. Anil Kumar Sinha v. State of Bihar, reported in (1998) 2 SCC 439. This Court fails to appreciate the relevance of the ratio in the said case to the facts of the present case. In that case the Hon'ble Supreme Court held that in the absence of statutory Rules under proviso to Article 309 or any Act of the legislature, the State Government can regulate the service conditions of teachers in private medical colleges by issuing administrative instructions. There can be no doubt about the aforesaid prohibition. But in no circumstances, the State can issue any instruction administratively or otherwise which has the effect of circumventing the Constitutional provision. Therefore, the Judgment in Dr. Anil Kumar Sinha's case has no relevance to the facts of the present case.
16. Learned Counsel also relied on a decision of the Supreme Court in the case of Tata Cellular v. Union Of India., reported in (1994) 6 SCC 651 : AIR 1996 SC 11. That was a decision relating to the extent of judicial review in contractual matters regarding acceptance or refusal of tender. In that case the Hon'ble Supreme Court pointed out the factors which the Court has to consider in such matters. This Court is of the opinion that there is no relevance of those factors to the point with which we are concerned in this case. Here we are concerned with condition of employment to public service. In Tata Cellular the Supreme Court held that the right to refuse the lowest or any other tender is not always violative of Article 14. There may be circumstance in which for very cogent grounds the lowest tender may not be accepted. But in the instant case, those considerations are not at all present when the State Government prohibits any person who stays outside the block from making an application pursuant to the advertisement for appointment as Swechhasevi Sikhya Sahayak in any particular block.
17. Learned Counsel for the State also places reliance on the case of State of Bihar v. Bihar State + 2 Lecturers Association, reported in (2008) 7 SCC 231 : AIR 2007 SC 1948. In that case the Hon'ble Supreme Court held that educational qualification can be the basis for a valid classification in matters of appointment. This proposition is well settled and is not in issue in this case. In the instant case, a debarment to appointment is not made on the basis of any educational qualification but purely on the ground of residence which falls foul of Article 16(2.) of the Constitution as discussed above. Therefore, none of the decisions relied upon by the Learned Counsel for the State has any application to the facts and circumstances of this case.
18. From the discussions above, this Court is of the opinion that Clause 4.1 the advertisement dated 14.10.2006 under Annexure 6 for appointment of Swechhasevi Sikhya Sahayak as amended by the of Corrigendum dated 12.10.2006 is violative of the provisions of Article 16(2) of the Constitution and the same is set aside. This Court, however, declares that any person who satisfies the criteria of educational qualification and other eligibility condition, shall be entitled to apply for appointment to the post of Swechhasevi Sikhya Sahayak despite the fact that he or she does not stay within any block where such appointment will be made. In other words, there can be no disqualification on the ground of residence.
19. This Court has been informed by the Learned Counsel for State that in view of the interim order passed by this Court, no appointment has been made in connection with the advertisement which has been made in these three Writ Petitions. As such, this Court is not required to pass any order for setting aside any appointment order. This Court, therefore, directs that appointment may now be made in the light of the decision given by this Court ignoring any disqualification on the ground of residence. The Writ Petitions are thus allowed to the extent indicated above. There will be no order as to costs.
I. Mahanty, J.:— I agree
21. Writ Petitions allowed
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