Anil Kumar v. Chief Secretary To The State Government Of Bihar, Patna And Others

N.P Singh, J.:— The petitioner has questioned the validity of an advertisement dated 7.5.1985 issued by the District Superintendent of Education, Hazaribagh, inviting applications for preparation of a panel of candidates for appointment to the posts of assistant teachers in the Primary Schools of the district and the order dated 31.1.1986 issued by the Special Secretary, Department of Education, Government of Bihar, laying down the requisite qualifications/conditions for being considered for appointment to the aforesaid posts.

2. In the advertisement aforesaid, one of the conditions for eligibility to apply for the posts aforesaid was that the applicant must be a trained teacher from the district of Hazaribagh or he must have passed the Matric or higher education from the district of Hazaribagh or his parent must be living in the said district for the last ten years. It is the case of the petitioner that he became a trained teacher having received training in an institution in the district of Hazaribagh and as such he was eligible for making application for one of the posts advertised. Later, by an order dated 31.1.1986, the Special Secretary, Department of Education, Government of Bihar, while purporting to exercise power under section 8 of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976 (Bihar Act 30 of 1976), defined “residents of the district” to mean (i) the original or permanent residents of the district, (ii) persons whose parents were living in the district in question for more than ten years. About the female candidates it was mentioned that they shall be deemed to be the permanent residents of the district if their husbands or fathers were the residents of the district.

3. The petitioner, although not fulfilling the criteria of the resident of the district given above, had received training from an institution in the district of Hazaribagh and as such he fulfilled the condition as mentioned in the aforesaid advertisement dated 7.5.1985 But, after the issuance of the order of the Special Secretary dated 31.1.1986, he was disqualified as he was not a resident of the district of Hazaribagh in terms of the definition given in the aforesaid order.

4. From time to time, the different State Governments and the institutions in order to provide employment and admission in the institutions to the local residents of the area have made provisions restricting the invasion from outsiders. Even if such attempts are held to be bona fide before they can be upheld by Courts they have to pass the tests of Articles 14 and 16 of the Constitution. Normally, a citizen of India is entitled to be considered for any employment or admission in any educational institution irrespective of the area of his birth or residence. This right guaranteed to him by Constitution can be restricted by any provision which can be held to have treated a group of persons as a class separate from the race and this classification has nexus with any reasonable object which is sought to be achieved.

5. Now so far the present case is concerned, the question which has to be answered is as to whether it was open to the State Government in order to provide employment to the residents of the district of Hazaribagh to put a condition which is under challenge. It is apparent that, in view of the condition imposed, the residents of other districts of the State of Bihar have been denied an opportunity of being considered for appointment to the posts in the different Primary Schools in the district of Hazaribagh.

6. The relevant part of Article 16 of the Constitution is as follows:—

“16. Equality of opportunity in matters of public employment.

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.”

7. On a plain reading, Article 16(2) says that no citizen shall, on grounds only of place of birth or residence, be discriminated in respect of any employment under the State.

8. A rule promulgated by the State of Madras allocating seats district-wise was challenged in the case of P. Rajendran v. State of Madras (AIR 1968 Supreme Court 1012). In that connection it was observed by the Supreme Court as follows:—

“The question whether districtwise allocation is violative of Article 14 will depend on what is the object to be achieved in the matter of admission to medical colleges. Considering the fact that there is a larger number of candidates than seats available, selection has got to be made. The object of selection can only be to secure the best possible material for admission to colleges subject to the provision for socially and educationally backward classes. Further whether selection is from the socially and educationally backward classes or from the general pool, the object of selection must be to secure the best possible talent from the two sources. If that is the object, it must necessarily follow that object would be defeated if seats are allocated district by district. It cannot be and has not been denied that the object of selection is to secure the best possible talent from the two sources so that the country may have the best possible doctors. If that is the object, the argument on behalf of the petitioners/appellant is that object cannot possibly be served by allocating seats districtwise. It is true that 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 territorial classification may be a reasonable classification. The fact however that the classification by itself is reasonable is not enough to support it unless there is nexus between the classification and the object to be achieved. 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 districtwise has no reasonable relation with the object to be achieved. If anything, such allocation will result in many cases in the object being destroyed, and if that is so, the classification, even if reasonable, would result in discrimination, inasmuch as better qualified candidates from one district may be rejected while less qualified candidates from other districts may be admitted from either of the two sources.”

9. The Supreme Court again in the case of A.V.S.N Rao v. State of A.P ((1969) 1 SCC 839 : AIR 1970 Supreme Court 422) pointed out that any law made by Parliament under Article 16(3) must be consistent with the right guaranteed by Article 16(1) and (2). In that connection it was observed as follows:—

“The claim for supremacy of Parliament is misconceived. Parliament, in this, as in other matters, is supreme only in so far as the Constitution makes it. Where the Constitution does not concede supremacy, Parliament must act within its appointed functions and not transgress them. What the Constitution says is a matter for construction of the language of the Constitution. Which is the proper construction of the two suggested? 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. Gupta 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. We accordingly reject the contention of Mr. Retalvad seeking to put a very wide and liberal construction upon the words ‘any law’ and ‘any requirement’. These words are obviously controlled by the words, ‘residence within the State or Union Territory’ which words mean what they say, neither more nor less. It follows, therefore that Section 3 of the Public Employment (Requirement as to Residence) Act, 1957, in so far as it relates to Telangana (and we say nothing about the other parts) and Rule 3 of the Rules under it are ultra vires the Constitution.”

10. In the aforesaid judgment, the Supreme Court clearly depricated a residential qualification linked with Districts, Taluqas, Cities, Towns or Villages, pointing out that Article 16(3) speaks only about a State of Union Territory.

11. A condition regarding residence for a particular period in a particular State, before such person can be held eligible for being considered for admission to an educational institution has been upheld by Courts because such power can be exercised in view of Article 16(3) of the Constitution. Reference in this connection may be made to the case of N. Vasundara v. State of Mysore ((1971) 2 SCC 22 : AIR 1971 Supreme Court 1439) where it was observed as follows:—

“The State has therefore to formulate with reasonable foresight a just scheme of classification for imparting medical education to the available candidates which would serve the object and purpose of providing broad-based medical aid to the people of the State and to provide medical education to those who are best suited for such education. Proper classification inspired by this consideration and selection on merit from such classified groups therefore cannot be challenged on the ground of inequality violating Article 14. The impugned rule has not been shown by the petitioner to suffer from the vice of unreasonableness. The counter-affidavit filed by the State on the other hand discuses the purpose to be that of serving the interests of the residents of the State by providing medical aid for them.”

12. But no such restriction ‘either for admission in any educational institution or in respect of employment can be made district-wise or Taluqa-wise.

13. In the instant case, the Special Secretary, Department of Education, Government of Bihar, by the impugned order dated 31.1.1986, has purported to restrict the persons residents of other district of the State of Bihar from being considered for appointment to the posts of teachers in the Primary Schools and has made the posts available only to the residents of the district of Hazaribagh. The order per se is violative of Articles 14 and 16 of the Constitution because it discriminates the residents of other districts without any rational basis. It need not be pointed out that the residents of Hazaribagh neither form a class separate from the residents of other districts of the State nor there is any reasonable object which is sought to be achieved by the order which is under challenge. It has been repeatedly pointed out by the Courts that the framers of the Constitution under Article 16 desired that persons of merit should be selected for appointment in public services irrespective of their caste, creed, religion or residence. This object is frustrated when any reservation is made on the basis of the district because persons who have better merit but not being residents of the district in question are deprived of the opportunity of being considered for appointment to the posts in question. In such a situation I am left with no option but to hold that in the advertisement dated 7.5.1985 and the order dated 31.1.1986 putting any condition regarding being resident of the district of Hazaribagh or having received training in the district of Hazaribagh is violative of Articles 14 and 16 of the Constitution and as such liable to be quashed. This writ application is, accordingly, allowed. But, as the persons who have already been appointed are not party to this application, their appointments cannot be held to be invalid in their absence. However, the respondents are restrained from making any appointment from the panel prepared on the basis of the advertisement and the order aforesaid. In the circumstances of the case, there will be no order as to costs.

Yadunath Sharan Singh, J.:— I agree.