(2012) 233 KLR 538 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC WEDNESDAY, THE 18TH DAY OF JANUARY 2012/28TH POUSHA 1933 WPC.No. 28055 of 2010 (F) ------------------------------------- PETITIONER: -------------------
RESPONDENTS: -----------------------
APPENDIX PETITIONER'S EXHIBITS:-
RESPONDENTS' EXHIBITS:- NIL. W.P.(C) Nos.28055, 33683, 35927, 36827, 36844, 37474, 37959, 38043, 38060, 38148, 38253, 38254, 38579 & 38537 of 2010, W.P.(C) Nos.64, 135, 788, 874, 950, 1433, 1878, 1959, 2060, 2156, 2538, 2638, 2863, 2923, 3004, 3039, 3042, 3062, 3337, 3851, 4652, 4833, 4900, 5647, 5853, 5985, 7942, 9345, 10849, 10904, 11650, 11914, 12055, 12571, 13226, 13355, 14007, 14447, 14846, 15629, 16455, 16516, 16824, 17001, 17214, 18167, 18692, 18855, 19391, 19471, 19548, 19642, 19677, 19784, 20311, 22333, 22436, 22465, 22984, 23889, 23937, 24459, 24959, 25029, 25030, 25032, 25211, 25287, 25329, 25403, 25575, 25827, 25984, 26107, 26108, 26109, 26302, 26633, 26810, 26981, 27088, 27097 & 28064 of 2011 Dated this the 18th day of January, 2012 Head Note:- Kerala State & Subordinate Services Rules - Rule 5A - district-wise selection - weightage mark - Nativity Certificate - the benefit of Rule 5A of KS & SSR is available only to candidates who are natives of the district concerned. In view of the provisions contained in Articles 16 read with Article 14 of the Constitution of India and in the light of the principles laid down by the Apex Court in Kaiiash Chand Sharma's case, Rule 5A KS&SSR, is unconstitutional and void. For Petitioner :
For Respondents :
J U D G M E N T Antony Dominic, J. 1. Petitioners in these writ petitions are claiming the benefit of Rule 5A of the Kerala State & Subordinate Services Rules (Hereinafter referred to as the "Rules" for short). In W.P. (C) No.11650/11, there is also an alternative prayer to declare the Rule unconstitutional. 2. Issues raised being common, these cases were heard together and are disposed of by this common judgment. 3. The background in which these litigations arise is that by G.O. (P) No.5/1993 dt 15/01/1993, Rule 5A was inserted in the Rules, which read as under; "Where the method of recruitment to any service, class or category is by direct recruitment on district wise basis, such of the candidates belonging to that district who qualify for the interview/become qualified to be included in the ranked list for such of the district-wise posts mentioned in the Annexure to this rule shall be given a weightage of five marks for the selection. Provided that the candidates who are eligible to get the above weightage marks shall produce along with the application a nativity certificate issued by a competent authority not below the rank of Tahsildar of the concerned Taluk". (Annexure is omitted) 4. The Explanatory Note to this notification, being relevant, reads as follows; "At present, the District Offices of the Kerala Public Service Commission are making district-wise selection to certain specified posts. The Kerala Public Service Commission has reported to Government that the candidates belonging to backward district such as erstwhile Malabar area do not get appointment against vacancies to be filled up by district wise selection in their native districts due to tough competition from candidates of other districts. To solve this problem to some extent, the Kerala Public Service Commission has been suggested that weightage of five marks may be given to candidates of native district for district-wise selection for Last Grade and Sub-Clerical posts. Government accept the suggestion of the Kerala Public Service Commission and propose to amend the Kerala State and Subordinate Services Rules, 1950 for this purpose. This notification is intended to achieve the above object." 5. Subsequently by G.O. (P) No. 10/2011/P&ARD dt 28/02/2011, the Rule was substituted, which also being relevant, is extracted as follows; "Where the method of recruitment to any post of any service class or category is by direct recruitment on district wise basis, such candidate belonging to that district shall be given a weightage of 5 marks for selection. Provided that candidates who are eligible to get the above weightage marks shall produce a nativity certificate issued by a competent authority not below the rank of a Tahsildar of the concerned district as and when called for. The entire annexure to Rule 5A in Part II Kerala State and Subordinate Service Rule, 1958 shall be deleted". 6. As is clear from the Rule itself, which is reiterated in the counter affidavits filed by the State and the PSC, both under the rule as it originally stood and as amended, the benefit of weightage is granted only to those candidates who produced Nativity Certificates. In so far as the issuance of the Nativity Certificates is concerned, in the Counter Affidavit filed by the State, it is stated that by G.O. (MS) No. 205/83/RD dt 26/02/1983, guidelines have been prescribed, which are the following; "1) Where father and mother are born natives of Kerala, Nativity Certificate will be issued to them as well as to their children. 2) Where father or mother is a native of another State and on marriage they are permanently residing in Kerala, Nativity Certificate will be issued to their children. 3) In other cases, only residential certificates will be issued". 7. Counter affidavits also reveal that there was no uniform format for the Nativity Certificates and that in order to remove the consequent difficulties, the Public Service Commission (hereinafter referred to as the "PSC" for short) wrote to the Government as per its letter dated 27/06/2000 requesting to prescribe a uniform format for the certificate. Pending receipt of orders in the matter, PSC also issued orders prescribing a format and incorporated it as a condition in the notifications published by it. This format reads thus; NATIVITY CERTIFICATE Certified on enquiry that Shri/Smt……………............................................………………………………(Full address……………………........................................…………………………………………… Village ………...................………. Taluk............ …….............……………… District ……..........………………………...........………..is a permanent resident of ……………......................………….. District and also is a native of the above District in Kerala. This certificate is to be produced before the…………................................. TAHSILDAR 8. Subsequently, the Government issued GO(Rt) 1553/2008 dt 06/05/2008, prescribing formats for the certificate both in English and in Malayalam, which are also extracted below for reference. Model Form of Nativity Certificate (English) No. Place………… Date……….. Nativity Certificate (As per G.O. (M.S) No.205/83 dated 26/02/1983)
നേറ്റിവിറ്റി സർട്ടിഫിക്കറ്റിന്റെ മാത്യക നംബർ സ്ഥലം............... തിയതി............. നേറ്റിവിറ്റി സർട്ടിഫിക്കറ്റ്
വില്ലേജ് ഓഫീസർ 9. According to the PSC, it had received several representations pointing out that after marriage female candidates usually settle at their matrimonial home, which may be in districts other than in their native districts and that such candidates should also be issued nativity certificates entitling them to claim weightage marks provided in the Rules. It is stated that accordingly, PSC took up the matter with the Government and that the Government vide its letter dated 13/08/2009, rejected the request and clarified its position in the matter as follows; "I am to invite your attention to the letter cited. It was informed therein that a petition had been received from Smt.Sandhya Tundiyil stating that female candidates after marriage usually settled in their husband's house in another district and hence they may be issued Nativity Certificate for applying to the district of their spouse or may be awarded weightage marks based on the marriage certificate. It was also informed that in the Indian context a girl on getting married shifts her entire life to her husband's house and she prefers an employment in her husband's place and hence the request of the petitioner seems to be reasonable. (2) Government have examined the case in consultation with the Commissioner, Land Revenue, Thiruvananthapuram. Model forms for issuance of nativity certificate for being produced before the Kerala Public Service Commission were prescribed as per G.O. (Rt) 1553/08/RD dated 06/05/2008. This was done in consultation with the Kerala Public Service Commission. The Commission awards weightage marks to candidates belonging to a particular district for getting preference in that district. Hence the request for awarding weightage marks to married female candidates in the district now residing for appointment through Kerala Public Service Commission is rejected". 10. These writ petitions are filed contending that the petitioners were born in one district and subsequently, for various reasons, such as marriage, migration etc., they had to settle down permanently in other districts in the state. It is argued that such persons are also entitled to the benefit of the rule. This contention is sought to be substantiated by pointing out that the main part of Rule 5A employs only the word "BELONGING TO" and that the word "NATIVITY" has been used only to describe the nature of the certificate which is to be produced. Thus the argument was that when the Legislature prescribed that one should belong to a district to claim the benefit of the Rule, there is no requirement that a candidate should be native of the district concerned to claim the benefit and that confining the benefit only to natives of the district concerned is illegal. It was also argued that nativity indicates place of birth and that if so, the Rule will offend Article 16 of the Constitution of India. According to the petitioners, to save the Rule from the vice of unconstitutionality, it is the duty of this Court to interpret the Rule in such a manner that the validity of the Rule is preserved. It was contended that if the Rule is understood as one which only requires the applicant to belong to the district concerned, such an interpretation will both serve the purpose of the Rule and save it from the vice of unconstitutionality. 11. Having noticed the contentions raised, I shall now proceed to examine whether there is any substance in any one of it. Affidavits filed by both the State and the PSC are perspicuous that what was intended to be achieved by the Rule was to give weightage to the natives of the district concerned in district wise recruitments held by the PSC. Further, in the affidavit filed by the State, it is unambiguously stated that "those persons who took birth in the State of Kerala alone can be issued with a Nativity Certificate" and that "therefore, Nativity Certificate can be issued only with respect to the place of birth". In its affidavit, the PSC also has taken the definite position that "the candidate should belong to that district" to claim the benefit of the Rule. The word "Nativity" has been interpreted by the Constitution Bench of the Apex Court in its judgment in P. Rajendran Vs. State of Madras, AIR 1968 SC 1012 and it was held thus; "But the dictionary meaning of the word nativity is birth and when Rules provide for nativity certificate they really mean the place of birth." 12. Therefore, in all cases where nativity certificate is the requirement of the Rule, such a prescription shall be understood as requiring the production of a certificate indicating the place of birth of the person concerned. In other words, Nativity Certificate can be issued only with reference to the place of birth of the applicant and the place of residence has no relevance at all. 13. Then the question to be answered is, when the Rule only provides that the person concerned should "BELONG" to the district concerned, is it legal to insist that one should be a "NATIVE" of the district to claim the benefit of the Rule? Relying on the meaning of the words "Belong to" in various dictionaries, it was contended by the petitioners that these words do not indicate the place of birth and that it means "to have a place, be located, be situated, be found" etc. On this basis the argument raised was that if a person has a fixed abode at a place other than his place of birth, he belongs to that place and that such a person is entitled to the benefit of weightage as provided in Rule 5A of the Rules with reference to the place where he has his fixed abode. 14. I have considered this submission. It is trite that words of a statute will take its colour and meaning from its context and, this principle cannot be lost sight of while statutes are interpreted. It is true that as rightly argued by the counsel for the petitioners, the expression "belonging to" is more elastic than the word "nativity" and in a given case a person can belong to a place, which is different from his place of birth. But to decide whether the Rule only require that a candidate should belong to the district concerned to claim the benefit of weightage, it is necessary to have a closer look at the Rule. The rule, read in the light of the explanatory note and the object that was sought to be achieved, makes it abundantly clear that what was intended was to extend the benefit of weightage only to the natives of the district concerned. This has been clarified by the Government when it rejected the representations made to it by its letter dated 13/08/2009, extracted above. Further, both the PSC and the State have made it clear in the affidavits filed that the benefit is available only to those who are natives of the district concerned. The usage of the expression "belonging to" in Rule 5A of the Rule also will not improve the case of the petitioners and in my opinion, this word, in the context in which it is used, has the same meaning as the word nativity and any contrary view will be against the purpose and intend of the Rule. Therefore except for the semantics, if appreciated in the context in which it is used, one can certainly see that both expressions, viz., "belonging to" and "nativity" convey the same meaning. 15. Much reliance was placed by the petitioners on the Apex Court judgment in Pradeep Jain v. Union of India, AIR 1984 SC 1420. According to the counsel, in this judgment, dealing with the validity of the residence requirement in a state for admission to Medical Colleges, the Apex Court held that Article 16 of the Constitution only prohibits discrimination on ground of place of birth and not on ground of residence and that therefore this Court should interpret the Rule in such a manner that it permits weightage based on place of residence. First of all, as I have already concluded earlier, the rule provides for weightage only on the basis of place of birth and not residence and for that reason itself this argument is only to be stated and rejected. Even otherwise, having considered this submission, I confess my inability to accept it and in my view, this judgment does not lay down any such principle. In this judgment, it has been held thus; "Any one anywhere, humble or high, agrestic or urban, man or woman, whatever be his language or religion, place of birth or residence, is entitled to be afforded equal chance for admission to any secular educational course for cultural growth, training facility, speciality or employment. It would run counter to the basic principle of equality before the law and equal protection of the law if a citizen by reason of his residence in State A, which ordinarily in the commonality of cases would be the result of his birth in a place situate within that State, should have opportunity for education or advancement which is denied to another citizen because he happens to be resident in State B"……………, 16. Proceeding further, the Court held thus; "19. It will be noticed from the above discussion that though intrastate discrimination between persons resident in different districts or regions of a State has by and large been frowned upon by the Court and struck down as invalid as in Minor P. Rajendran's case (AIR 1968 SC 1012) (supra) and Perukaruppan's case (AIR 1971 SC 2303) (supra), the Court has in D. N. Chanchala's case and other similar cases upheld institutional reservation effected through universitywise distribution of seats for admission to medical colleges. The Court has also by its decisions in D. P. Joshi's case (AIR 1955 SC 334) and N. Vasundhara's case (AIR 1971 SC 1439) (supra) sustained the constitutional validity of reservation based on residence, requirement within a State for the purpose of admission to medical colleges. These decisions which all relate to admission to MBBS course are binding upon us and it is therefore not possible for us to hold, in the face of these decisions, that residence requirement in a State for admission to MBBS course is irrational and irrelevant and cannot be introduced as a condition for admission without violating the mandate of equality of opportunity contained in Art. 14. We must proceed on the basis that at least so far as admission to MBBS course is concerned, residence requirement in a State can be introduced as a condition for admission to the MBBS course. It is of course true that the Medical Education Review Committee established by the Government of India has in its report recommended after taking into account all relevant considerations, that the "final objective should be to ensure that all admissions to the MBBS course should be open to candidates on an All India basis without the imposition of existing domicilary condition", but having regard to the practical difficulties of transition to the stage where admissions to MBBS course in all medical colleges would be on all India basis, the Medical Education Review Committee has suggested "that to begin with not less than 25 per cent seats in each institution may be open to candidates on all India basis." We are not at all sure whether at the present stage it would be consistent with the mandate of equality in its broader dynamic sense to provide that admissions to the MBBS course in all medical colleges in the country should be on all India basis. Theoretically, of course, if admissions are given on the basis of all India national entrance examination, each individual would have equal opportunity of securing admission, but that would not take into account diverse considerations, such as, differing level of social, economic and educational development of different regions, disparity in the number of seats available for admission to the MBBS course in different States, difficulties which may be experienced by students from one region who might in the competition on all India basis get admission to the MBBS course in another region far remote from their own and other allied factors. There can be no doubt that the policy of ensuring admissions to the MBBS course on all India basis is a highly desirable policy, based as it is on the postulate that India is one nation and every citizen of India is entitled to have equal opportunity for education and advancement, but it is an ideal to be aimed at and it may not be realistically possible, in the present circumstances, to adopt it, for it cannot produce real equality of opportunity unless there is complete absence of disparities and inequalities - a situation which simply does not exist in the country today. There are massive social and economic disparities and inequalities not only between State and State but also between region and region within a State and even between citizens and citizens within, the same region. There is a yawning gap between the rich and the poor and there are so many disabilities and injustices from which the poor suffer as a class that they cannot avail themselves of any opportunities which may in law be open to them. They do not have the social and material resources to take advantage of these opportunities which remain merely on paper recognised by law but non-existent in fact. Students from backward States or regions will hardly be able to compete with those from advanced States or regions because, though possessing an intelligent mind, they would have had no adequate opportunities for development so as to be in a position to compete with others. So also students belonging to the weaker sections who have not by reason of their socially or economically disadvantaged position, been able to secure education in good schools would be at a disadvantage compared to students belonging to the affluent or well-to-do families who have had the best of school education and in open All India Competition, they would be likely to be worsted. There would also be a number of students who, if they do not get admission in a medical college near their residence and are assigned admission in a far off college in another State as a result of open All India Competition, may not be able to go to such other college on account of lack of resources and facilities and in the result, they would be effectively deprived of a real opportunity for pursuing the medical course even though on paper they would have got admission in a medical college. It would be tantamount to telling these students that they are given an opportunity of taking up the medical course, but if they cannot afford it, by reason of the medical college, to which they are admitted being far away in another State, it is their bad luck, the State cannot help it, because the State has done all that it could, namely, provide equal opportunity to all for medical education. But the question is whether the opportunity provided is real or illusory? We are therefore of the view that a certain percentage of reservation on the basis of residence requirement may legitimately be made in order to equalise opportunities for medical admission on a broader basis and to bring about real and not formal, actual and not merely legal, equality. 17 Again in paragraph 20 of the judgment, the High Court was approved thus: "We agree wholly with these observations made by the learned Judge and we unreservedly condemn wholesale reservation made by some of the State Governments on the basis of 'domicile' or residence requirement within the State or on the basis of institutional preference for students who have passed the qualifying examination held by the university or the State excluding all students not satisfying this requirement, regardless of merit. We declare such wholesale reservation to be unconstitutional and void as being in violation of Artice 14 of the Constitution." 18. From what is extracted from the judgment in Pradeep Jain's case (supra) it is evident that the Apex Court did not lay down any general principle that for all purposes, reservation either on the basis of place of birth or residence is constitutionally permissible. On the other hand the Court has only held that in matters of admission to Medical Colleges, in view of the binding precedents noticed by the Court, there can be a limited reservation for ensuring equality of opportunity among all groups. This judgment cannot be understood as laying down a general principle that irrespective of Article 16 of the Constitution, in all cases, there can be reservation on the basis of place of birth or residence. 19. In fact, in its judgment in Kailash Chand Sharma v. State of Rajasthan, (2002) 6 SCC 562, the details of which may not be relevant now, relying on Pradeep Jain's case a similar argument was raised and rejecting it the court held as follows; "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." 20. Proceeding further, the Court held thus; "27. These observations, in our view, cannot be legitimately pressed into service for the purpose of justifying reservation or weightage in favour of rural candidates on the ground of nativity/residence for purposes of public employment. The difference in approach in relation to Articles 15 and 16 was indicated by Bhagwati, J. in Pradeep Jain's case and we have quoted the relevant passage extensively. It was made clear in Pradeep Jain Case that in the matter of admissions to professional colleges the considerations were different. As far as public employment is concerned, classification on the basis of residence in a region or locality was broadly held to be constitutionally impermissible. Moreover, the preferential treatment of rural candidates in the instant case is not on the ground that they hail from the backward region. All or most of the villages in the district or the State cannot be resumed to be backward educationally or economically. Such a claim was not accepted in Pradip Tandon case by the three judge Bench. Even in Nidamarti case it was held that in the absence of material, certain region cannot be dubbed as backward." 21. For the aforesaid reasons, the contentions that Rule 5A provides for benefit of weightage based on place of residence and that the Apex Court judgment in Pradeep Jain's case (supra) supports such a claim are wholly misconceived and are only to be rejected and I do so. 22. I shall now proceed to examine the contention that the Rule is unconstitutional. This argument is raised on the basis that any rule providing for preference on the basis of place of birth or residence is hit by Articles 14 and 16 of the Constitution of India. The fact that the rule provides for weightage on the basis of place of birth cannot be a matter of dispute. The claim of the petitioners for the benefit of the rule on the basis of residence, has already been negatived by me in the previous paragraphs of this judgment. Question in this context would be whether such a preference, be it on the basis of place of birth or residence, is constitutionally permissible? In my view, the answer to this question can be only in the negative. 23. Article 16 of the Constitution, to the extent it is relevant, reads thus; 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. (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment. (4) nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens, which in the opinion of the State, is not adequately represented in the services under the State. (5) ………………….. (6) ………………….. 24. Thus Article 16 of the Constitution provides for equality in the matter of public employment and also prohibits discrimination on grounds only those mentioned in clause (2). Further clause (3) empowers only the Parliament to make any law providing residence as a requirement for appointment under the State. In this context, I shall refer to the. Apex Court in Kailash Chand Sharma Vs. State of Rajasthan, (2002) 6 SCC 562, which in my view, is a complete answer to this issue. That case concerned the validity of a circular issued by the Rajasthan Government providing for awarding of bonus marks @ 10 marks. 10 marks and 5 marks to domiciles of Rajasthan, residents of the districts concerned and the residents of rural areas of that district respectively in the recruitment of teachers. In cases filed by candidates from other districts who were ineligible for bonus marks, awarding of bonus marks was sought to be sustained by the State, contending that residence within a district or rural areas of that district could be a valid basis for classification for the purpose of public employment and that the award of bonus marks to the residents of rural areas was a measure of affirmative action or compensatory discrimination to help the disadvantaged sections. It was further contended that unwillingness of teachers recruited from urban districts resulted in teacher absenteeism, and justified award of bonus marks and that recruiting teachers familiar with vernacular dialect was beneficial. Thus, the classification was attempted to be sustained as not one based on residence, but based on considerations having nexus with the object sought to be achieved. 25. The question that was posed by the Apex Court is; "whether the circular dated 10/06/1998 providing for bonus marks for residents of the district concerned and the rural areas within that district is constitutionally valid, tested on the touchstone of Article 16 read with Article 14 of the Constitution" (vide paragraph 11 of the reports). 26. In this judgment rejecting the aforesaid contentions, the Apex Court held thus:- "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 compartmentalise 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". 27. Thereafter reference has been made to the judgment in A.V.S. Narasimha Rao v. State of A.P., (1969) 1 SCC 839, where it was 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 ultravires the Constitution. 28. The aforesaid paragraphs from the Apex Court judgment show that the Rule cannot survive in the light of Articles 14 and 16 of the constitution of India. 29. Now I shall deal with some of the other contentions which were raised at the Bar. One of the contention urged was that candidates recruited from relatively forward districts do not wish to work in relatively backward districts and therefore, soon after joining the posts, requests are made for transfers to convenient places and that absenteeism by such appointees is common. It was therefore contended that in recruitments to posts filled up by district-wise recruitment, it was necessary to give weightage to natives. In other words, the argument is that the weightage given to native candidates is in the interest of the service and hence should be upheld. 30. Though I have given my thoughtful consideration to this contention, I am unable to agree with the Counsel. First of all, a constitutional prohibition cannot be watered down by projecting practical difficulties of the Executive and if this be a permissible course, then any inconvenient provision of the Constitution can be diluted and even nullified by taking refuge under such imaginary administrative exigencies. Constitution binds everyone in this Country and so long as Article 16 of the Constitution remains as such, this argument cannot be accepted. Further this very contention was pressed into service before the Apex Court in Kailash Chand Sharma's case (supra) and was rejected with the following reasoning; "32. Coming then to the next plea that the residents of towns, if appointed will not be willing to serve the rural areas and they will be more interested in getting themselves transferred to "relatively urban area and forward districts", does not in our view, stand a moment's scrutiny. The apprehension that "teacher absenteeism" will be rampant if non-rural candidates are appointed, to say the least, is based on irrelevant and unwarranted assumptions. First of all, as rightly pointed out by Dr A.M. Singhvi, postings and transfers are managerial functions. The authorities in charge concerned cannot be heard to say that there will be undue pressures from the candidates from extraneous sources and they will have to succumb to such pressures. Secondly, the question of non-rural candidates trying to avoid working in villages and seeking transfer to town or urban areas does not arise for the simple reason that the appointees would have no option but to work in villages coming within the jurisdiction of the Panchayat Samiti concerned. The only other possibility is that they may like to have postings in the villages close to the town. If the non-rural candidates would like to have postings at places close to the town, the rural area candidates may equally have the desire to get postings close to their native villages and many of them may even prefer working at places near the town. Thus desire and aspiration in regard to choosing the place of work need not be on a set pattern. Ultimately, it is a matter of regulation of postings of rural as well as non-rural candidates. As regards the candidates coming from other districts, the question of seeking inter-district transfer does not arise, as they are required to work within the particular district in which they are selected and appointed. The factors which may exist in the context of appointments to State-wide cadre does not exist here. The difficulties sought to be projected by the State appear to be more imaginary rather than real. We have, therefore, no hesitation in rejecting this argument". 31. It was also contended that the weightage marks awarded on the basis of nativity is to the advantage of rural candidates and is a measure to help the disadvantaged section viz., the rural people. I am unable to uphold this contention also. First of all, this is not a contention urged by the State in its counter affidavit. Secondly, if at all there is any substance in this plea, the benefit of weightage would not have been made available to the entire state. Otherwise, the State should have a case that the whole state is rural or backward, which is not its case. Further, this plea also has been raised, considered and rejected in Kaiiash Chand Sharma's case (supra) vide paragraph 22 to 28 thereof. 32. From the above discussions, the irresistible conclusions which emerge are:- (1) that the benefit of Rule 5A of KS & SSR is available only to candidates who are natives of the district concerned. (2) that in view of the provisions contained in Articles 16 read with Article 14 of the Constitution of India and in the light of the principles laid down by the Apex Court in Kaiiash Chand Sharma's case (supra), Rule 5A KS&SSR, is unconstitutional and void and there will be a declaration to that effect. 33. However, this judgment shall not affect recruitments already made or any candidate who has already been appointed to any service, giving the benefit of Rule 5A of KS&SSR. All these writ petitions are disposed of accordingly. No costs. |
