# Ambrish Kumar & Ors v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 1536
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-13
- **Case number:** Service Bench No. 36698 of 2018, 36694 of 2018, 4234 of 2019, 18370 of 2019
- **Bench:** Govind Mathur, C.J. Chandra Dhari Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ambrish-kumar-ors-v-state-of-u-p-ors-45670
- **Pages:** 33

## Headnote

A. Appointment- The Constitution of
India- Art. 14, 15, 16 and 21-A - Assistant
teachers
in
primary
school-such
candidates called for counselling in the
district who have completed training
from the very same district-a reasonable
classification-children should begin their
schooling through the medium of their
mother tongue.

Held, the said provision has got a purpose and
object i.e. the children are taught by a person
who is very well familiar with the local habitat
and also speaks local dialect. Further the first
preference for appointment is given to the
candidates who have undergone the training
qualification
from
the
district
concerned
because
such
candidates
are
already
acquainted with the demographic conditions,
local dialect and traditions from where the
children who are to be taught come from. (Para
64)

Writ Petition dismissed. (E-9)

List of cases cited: -

## Text

_Characters 0–39,966 of 113,557. This is a partial read: ask again with offset=39966 for what follows._

1 All. Mahindra & Mahindra Financial Service Ltd. Vs. State of U.P. & Ors.
1537
(2020)1ILR 1536

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.01.2020

BEFORE
THE HON'BLE GOVIND MATHUR, C.J.
THE HON'BLE CHANDRA DHARI SINGH, J.

Misc. Bench No. 5320 of 2017, 11652 of 2018,
18653 of 2016, 19580 of 2016, 18624 of 2016,
30621 of 2016, 6143 of 2018, 4349 of 2016
&
Service Single No. 19196 of 2016, 20082 of
2016, 18406 of 2016, 17366 of 2016, 11220 of
2016
&
Service Bench No. 36698 of 2018, 36694 of
2018, 4234 of 2019, 18370 of 2019

Ambrish Kumar & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Himanshu
Raghave,
Apoorva
Tewari,
Durga Prasad Shukla

Counsel for the Respondents:
C.S.C., Amrendra Nath Tripathi, Neeraj
Chaurasiya, Pt. S. Chandra, Shashi Bajpai

A. Appointment- The Constitution of
India- Art. 14, 15, 16 and 21-A - Assistant
teachers
in
primary
school-such
candidates called for counselling in the
district who have completed training
from the very same district-a reasonable
classification-children should begin their
schooling through the medium of their
mother tongue.

Held, the said provision has got a purpose and
object i.e. the children are taught by a person
who is very well familiar with the local habitat
and also speaks local dialect. Further the first
preference for appointment is given to the
candidates who have undergone the training
qualification
from
the
district
concerned
because
such
candidates
are
already
acquainted with the demographic conditions,
local dialect and traditions from where the
children who are to be taught come from. (Para
64)

Writ Petition dismissed. (E-9)

List of cases cited: -

1. Radhey Shyam Singh v. Union of India;
(1997) 1 SCC 60

2. Subramaniam Swamy v. Director, CBI;
(2014) 8 SCC 682

3. Govind A Mane v. State of Maharashtra;
(2000) 4 SCC 200

4. State of U.P. Vs. Anant Kumar Tiwari; 2003
(3) AWC 2060

5. Deepak Kumar Suthar v. State of Rajasthan;
(1992) 2 RLR 692

6. Harshendra Choubissa v. State of Rajasthan;
(2002) 6 SCC 393

7. Dhanjay Malik and others Vs. State of
Uttaranchal and others; (2008) 4 SCC 171

8. V.N. Sunanda Reddy and others Vs. State of
A.P. and others; 1995 Supp (2) SCC 235

9. Union of India and others. v. N. Chandra
Shekharan and others. 1998 (3) SCC 594

10. Inder Sen Mittal v. Housing Board, Haryana
and others; 2002 (3) SCC 175

11. Manish Kumar Sahi v. State of Bihar and
others; (2010) 12 SCC 576

12. D. Sarojakumari v. K. Helen Thilakom and
others; (2017) 9 SCC 478

13. Dr. (Major) Meeta Sahi Vs. State of Bihar
and others; 2019 SCC Online SC 1632

14. Balbir Kaur v. U.P. Secondary Education
Services Selection Board, (2008) 12 SCC 1

15. Rajkumar and others vs. Stae of Rajasthan
and others; AIR 2016 Rajasthan 176
1538 INDIAN LAW REPORTS ALLAHABAD SERIES
16. Kumari Shrilekha Vidyarthi and Others v.
State of U.P. and Others, (1991) 1 SCC 212

(Delivered by Hon'ble Chandra Dhari
Singh, J.)

1. As common questions of law and
facts arise in all writ petitions and as such
all these writ petitions are being decided
together by this common judgment and
order.

2. In the instant bunch of writ
petitions, all petitioners have assailed the
validity of the Rule (14(1)(a) of the U.P.
Basic Education (Teachers) Service Rules,
1981, (in short '1981 Rules') which
provides the appointing authority to invite
applications from candidates possessing
prescribed training qualification from the
district concerned.

3. Petitioners, inter alia, have also
challenged the condition 6 (Kha) as
contained
in
the
guideline
dated
26.12.2016 issued by the Secretary, U.P.
Basic Shiksha Parishad, Allahabad to the
extent that the candidates doing B.T.C.
Training shall be allowed to apply in the
district of their training alone in the first
instance. They have also prayed that they
may be permitted to appear in the
counselling of the other district of their
choice removing "District Preference".

4. Brief facts of the case are that vide
Government
Order
No.3300/
79-5201604127/ 2013 dated 15.12.2016, a
selection process for appointing 12,460
Assistant Teachers in the Primary Schools
run under U.P. Basic Shiksha Parishad,
Allahabad was initiated. In pursuance of
the aforesaid Government Order dated
15.12.2016, the Secretary, U.P. Basic
Shiksha Parishad, Allahabad issued a
Letter No.Ba.Sh.Pa./ 12836 - 12932/ 201617
dated
20.12.2016
declaring
the
schedule as also the vacancies in the
districts across the State of U.P. A
guideline was also issued by the Secretary,
U.P. Basic Shiksha Parishad, Allahabad in
pursuance to the Government Order dated
15.12.2016. Thereafter, in compliance of
the
letter
dated
20.12.2016,
online
applications were invited from the eligible
candidates for the post of Assistant
Teachers by the respective District Basic
Education Officers. All the petitioners
have applied in various districts against
notified vacancies.

5. Vide Circular No.Ba.Sh.Pa./
16887 - 17056/ 1216 - 17 dated
02.03.2017, the Secretary, U.P. Basic
Shiksha Parishad, Allahabad had issued a
definite schedule fixing 18.03.2017 to
20.03.2017
for
First
Counselling,
25.03.2017 for Second Counselling and
31.03.2017
was
fixed
for
issuing
appointment letters. In paragraph 2 of the
Circular dated 02.03.2017, it has been
provided that only such candidates shall be
called for counselling in the district who
have
completed
Training
(B.T.C.,
V.B.T.C., Urdu B.T.C.) from the very
district.

6. Petitioners have submitted on-line
applications against the notified vacancies
at
various
districts.
Vide
Circular
No.Ba.Sha.Pa./16887-17056/1216-17
dated 02.03.2017, the Secretary, U.P.
Basic Shiksha Parishad, Allahabad has
issued
a
definite
schedule
fixing
18.03.2017 to 20.03.2017 for first counsel,
25.03.2017 for second counselling and
31.03.2017 for issuing appointment letters.
In para 2 of the said Circular, it is provided
that only such candidates shall be called
for counselling in the district who have
1 All. Ambrish Kumar & Ors. Vs. State of U.P. & Ors.
1539
done Training (BTC, VBTC, Urdu BTC)
from the very district.

7. The instant bunch of writ petitions
has been filed by petitioners with the
object that the children are entitled for
good quality of education under the
provisions of Free and Compulsory
Education Act, 2009 and the same cannot
be
achieved
without
appointing
meritorious candidates.

8. Sri Anil Tiwari, learned Senior
Advocate assisted by Sri Apoorva Tewari
along with other learned Advocates
appearing for petitioners has contended
that the fundamental right to free and
compulsory education to all children of 6
to 14 years of age is guaranteed by Article
21-A of the Constitution of India. The
purpose of enacting Free and Compulsory
Education is to provide good quality of
education to the children but the same
cannot be achieved without appointing
meritorious teachers. If the procedure
adopted for appointing Assistant Teachers
fails to ensure the appointments of
meritorious
Teachers,
it
depicts
arbitrariness and hit by Article 14 of the
Constitution of India.

9. In support of his contention, learned
Counsel has placed reliance to para 8 of
Radhey Shyam Singh v. Union of India;
(1997) 1 SCC 60, which is as follows:

"8. It is needless to emphasis
that the purpose and object behind holding
a recruitment examination is to select
suitable and best candidates out of the lot
and such an object can only be achieved
by making a common select list of the
successful candidates belonging to all the
zones. On the other hand if zone-wise
selection is made then various candidates
who appeared in some of the zones and
secured more marks than those who are
selected from other zones would be
deprived of their selection resulting into
great
injustice
and
consequent
discrimination. Thus there can be said to
exist no nexus between the aforesaid
process of zone-wise selection and the
object to be achieved, that is, the selection
of the best candidates. That being so the
process of selection as envisaged in
paragraph 16 of the advertisement in
question and reproduced in the earlier
part of this judgment would lead to
discriminatory results because by adopting
the said process of zone-wise selection
would result in the devaluation of merit at
the selection examination by selecting a
candidate having lesser marks over the
meritorious candidate who has secured
more marks and consequently the rule of
equal chance for equal marks would be
violated. Such a process would not only be
against the principles enunciated in
Articles 14 and 16 of the Constitution but it
would also result in heart burning and
frustration amongst the young men of the
country. The rule of equality of opportunity
for every individual in the country is an
inalienable part of our constitutional
guarantee and that being so a candidate
who secures more marks than another is
definitely entitled to get preference for the
job as the merit must be the test when
selecting a candidate for recruitment for the
posts which are advertised. In the present
case admittedly the process of selection as
envisaged
in
paragraph
16
of
the
advertisement in question is violative of
Articles 14 and 16 of the Constitution of India
as it has been demonstrated from the marks st
of the appellants placed before us at the Bar
during the course of arguments that they had
secured more marks than those secured by
some of the selected candidates."
1540 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Learned Counsel appearing for
petitioners has also placed reliance to
paragraph 58 of Subramaniam Swamy v.
Director, CBI; (2014) 8 SCC 682, which
is as follows:

"58. The Constitution permits the
State to determine, by the process of
classification, what should be regarded as
a class for purposes of legislation and in
relation to law enacted on a particular
subject. There is bound to be some degree
of inequality when there is segregation of
one class from the other. However, such
segregation must be rational and not
artificial or evasive. In other words, the
classification must not only be based on
some qualities or characteristics, which
are to be found in all persons grouped
together and not in others who are left out
but those qualities or characteristics must
have a reasonable relation to the object of
the legislation. Differentia which is the
basis of classification must be sound and
must have reasonable relation to the
object of the legislation. If the object itself
is discriminatory, then explanation that
classification
is
reasonable
having
rational relation to the object sought to be
achieved is immaterial."

11. During the course of argument,
learned Counsel for the petitioner has also
invited the attention of this Court towards
"The Right of Children to Free and
Compulsory Education Act, 2009" (in
short RTE Act, 2009) and submitted that
the Parliament has enacted the said Act
with the following objects:

"1. and 2. ....

3. Consequently, the Right of
Children
to
Free
and
Compulsory
Education Bill, 2008 is proposed to be
enacted which seeks to provide -

(a) that every child has a right to
be provided full time elementary education
of satisfactory and equitable quality in a
formal school which satisfied certain
essential norms and standards;

(b) to (d) .....

4. The proposed legislation is
anchored in the belief that the values of
quality, social justice and democracy and
the creation of a just and humane society
can be achieved only through provision of
inclusive elementary education to all.
Provision
of
free
and
compulsory
education
of
satisfactory
quality
to
children from the disadvantaged and
weaker sections is, therefore, not merely
the responsibility of schools run or
supported
by
the
appropriate
Governments, but also of schools which
are not dependent on Government Funds.

5. and 6. ...

Further, Section 8(g) of the
aforesaid Act is as under:

8.
Duties
of
appropriate
Government.
-
The
appropriate
Government shall -

(a) to (f) ....

(g)
ensure
good
quality
elementary education conforming to the
standards and norms specified in the
Schedule;

(h) & (i) ..."

12. Learned Counsel appearing for
the petitioner has next contended that the
aforesaid discrimination shall defeat the
intent of RTE Act, 2009. The petitioners
apprehend
that
the
instant
selection
process
for
appointment
of
12,460
Assistant Teachers, due to strict adherence
to Clause (a) of sub-Rule (1) of Rule 14 of
1981 Rules, would be plagued by the same
illegal, unreasonableness and arbitrariness
as were the earlier selection process for
appointment of Assistant Teachers.
1 All. Ambrish Kumar & Ors. Vs. State of U.P. & Ors.
1541

13.

The
learned
Counsel
appearing for petitioners has submitted
that the condition for "inviting applications
from candidates possessing prescribed
training qualification from the district
concerned" as contained in Clause (a) of
sub-Rule (1) of Rule 14 of 1981 Rules is
absolutely
arbitrary
as
there
is
no
reasonable
nexus
between
the
classification and the object sought to be
achieved by inclusion of the condition. It
is absolutely unreasonable and violation of
Articles 14 and 16 of the Constitution. It
has further been submitted that strict
adherence to the aforesaid conditions
amounts to violation of reservation policy
which is detrimental to the General
Category
candidates
as
provided
in
Section 3(1) of the U.P. Public Service
Reservation
for
Scheduled
Castes,
Scheduled Tribes and Other Backward
Classes Act, 1994.

14. Learned Counsel appearing for
petitioners has invited attention of this
Court towards paras 6 & 7 of the judgment
of Hon'ble Supreme Court rendered in
Govind A Mane v. State of Maharashtra;
(2000) 4 SCC 200. Para 6 and 7 read as
under:

"6. The law, thus, having been
laid down clearly by this Court, the High
Court was not justified in dismissing the
Writ Petition. Since it is not disputed by
the respondents that for the purpose of
admission to B.Ed Course, seats were
distributed districtwise without indicating
any material to show the nexus between
such distribution and the object sought to
be achieved, it would be violative of
Article 14 of the Constitution.

7. Unfortunately,
the
whole
matter relates to the year 1995 and, today,
after a lapse of five years, it would not be
possible to direct that the appellants may
be admitted in B.Ed Course. All that can
be said is that if any further steps are
taken by the respondents for fresh
admission to B.Ed Course, the appellants
should also be given an opportunity to
seek admission in that Course."

15. Learned Counsel appearing for
petitioners has further submitted that vide
Government Order dated 12.09.2012,
online applications were invited for
B.T.C.,
V.B.T.C.
and
Urdu
B.T.C.
Training but in paragraph 2 of the said
Government Order, it has clearly been
provided that for the aforesaid training, the
applicant shall apply in the Training
Institute located in the district of his
domicile/ residence. It is compulsory to
present domicile certificate from the
district concerned or else the candidature
shall
be
deemed
cancelled.
Thus
necessarily the basis for B.T.C. Training in
a district would remain the domicile/
residence in that district.

16. Sri Anil Tiwari, learned Senior
Advocate
has
submitted
that
the
preparation of merit list at district wise and
restricting the selection of meritorious
candidates, who belongs to other districts,
amounts to a discrimination and such act
of the State Government is in violation of
Articles 15(1) and 16(2). In support of his
submissions, Sri Anil Tiwari, learned
Senior Advocate has relied upon paras 44
to 50 of State of U.P. Vs. Anant Kumar
Tiwari; 2003 (3) AWC 2060. Paras 44 to
50 reads as under:

"44. A merit list of all the
applications received will be prepared on
the basis of quality points of the
educational and other qualifications in
accordance with the provisions given in
1542 INDIAN LAW REPORTS ALLAHABAD SERIES
the Government orders mentioned above
at the State level, which will be prepared
in proportion to the total vacancies for
training. The above list will be arranged
district-wise, in conformity with the
vacancies available in the district and a
provision of reservation as per the rules
will be ensured. The candidates on the
merit list shall be allotted as per the
following, in order of merit:

(a)
Home
district
of
the
candidate ;

(b) Another district of the
Division, wherein home district is located
;

(c) Nearest Division to the home
district Division of the candidate where
the vacancy is available.

45. The plea taken by learned
Advocate General that the students ought
to be taught in the local dialect which
differs from region to region in the State of
U.P. is misconceived, inasmuch as, by
restricting the prospective applicants of
the home district to apply in that district
only presumably by virtue of birth alone in
that district does not serve the purpose, as
that person may have studied elsewhere
and may have forgotten the dialect of the
home district. Further Art.15(1) and
Art.16(2) of the Constitution put a
complete prohibition upon the State from
discriminating persons on the basis of
birth and place of residence in the matter
of employment within the State. In the case
of English Medium Students Parents
Association, ((1994) 1 SCC 550 : AIR
1994 SC 1702) (supra), the Hon'ble
Supreme Court had held that:

"All educational experts are
uniformly of the opinion that pupils should
begin their schooling through the medium
of their mother tongue. There is great
reason and justice behind this. Where the
tender minds of the children are subject to
an alien medium the learning process
becomes unnatural, If inflicts a cruel
strain on the children which makes the
entire transaction mechanical. Besides, the
educational process becomes artificial and
torturous. The basic knowledge can easily
be garnered through the mother tongue.
The introduction of a foreign language
tends
to
threaten
to
atrophy
the
development of mother tongue. When the
pupil comes of age and reaches the Vth
standard level, the second language is
required to take it as a second language.
At the secondary stage the three-language
formula is introduced. However, in cases
of non-Kannada speaking students grace
marks up to 15 are awarded. Certainly, it
cannot be contended that a student
studying in a school from Karnataka need
not know the regional language. It should
be the endeavour of every State to promote
the regional language of the State. In fact,
the Government of Karnataka has done
commendably
well
in
passing
this
Government order. Therefore, to contend
that the Imposition of study of Kannada
throws an undue burden on the students is
untenable. Again to quota Mahatma
Gandhi :

"The
medium
of
instruction
should be altered at once and at any cost,
the provincial languages being given their
rightful place. I would prefer temporary
chaos in higher education to the criminal
waste that is daily accumulating."

As rightly contended by the
learned Advocate General where the State
by means of the Impugned Government
order desires to bring about academic
discipline as a regulatory measure it is a
matter of policy. The State knows how best
to implement the language policy. It is not
for the Court to interfere."

46. Here, it is not the case that a
different regional language is to be taught
1 All. Ambrish Kumar & Ors. Vs. State of U.P. & Ors.
1543
to the students in different local areas. The
subject in the course is same throughout the
State. The medium of teaching is also the same.
Only the dialect differs which too has been taken
care of by providing allocation of seats in the
home district to the candidates under the
Government order dated 14.9.2001 out of the
merit list prepared at the State level. In the case
of Arun Tiwari (supra), the facts were that the
assistant teachers in Madhya Pradesh are
governed by the Madhya Pradesh Non-Gazetted
Class III Education Service (Non-Collegiate
Service) Recruitment and Promotion Rules,
1973, which provided for direct recruitment by
competitive
examination
followed by
an
interview. During the Eighth Plan period, i.e.,
from 1992 to 1997 the Central Government
sponsored a scheme known as Operation
Blackboard Scheme. Under this scheme the
Government of India gave financial clearance to
the State of Madhya Pradesh to implement this
scheme by appointing additional teachers in all
primary middle schools which had only one
teacher In order to improve the standards of
education. In order to implement the scheme the
State of Madhya Pradesh decided to fill in about
7,000 to 11,000 posts of Assistant Teachers in
such schools. The recruitment Rules of 1973
were amended on 10.5.1993 by adding a proviso,
which empowers the State Government to
prescribe the criteria and procedure for selection
of candidates in any circumstances. The State
Government provided that selection of Arts
teachers in 1993 will be made by committee
instead of Junior Service Selection Board by
inviting applications from employment exchange
and making selection district-wise. Certain
persons, who did not even possess the prescribed
qualifications, challenged the selection process.
The Hon'ble Supreme Court held as follows :

"The next contention relates to
inviting applications from employment
exchanges Instead of by advertisement.
This procedure has been resorted to
looking to the requirements of a time
bound scheme. The original applicants
contended that if the posts had been
advertised, many others like them could
have applied. The original applicants, who
so complain, however, do not possess the
requisite qualifications for the post. As far
as we can see from the record, nobody,
who had the requisite qualifications has
complained that he was prevented from
applying because advertisement was not
issued. What is ; more important, in the
special circumstances requiring a speedier
process of selection and appointment,
applications
were
invited
through
employment exchanges for 1993 only. In
this context, the special procedure adopted
is not unfair. The State has relied upon the
case of Union of India Vs. Hargopal,
((1987) 3 SCC 308 : AIR 1987 SC 1227)
where Government institution enjoining
that the field of choice should, in the first
instance, be restricted to candidates
sponsored by the employment exchanges,
was upheld as not offending Arts. 14 and
16 of the Constitution. In the case of Delhi
Development
Horticulture
Employees'
Union v. Delhi Admn., ((1992) 4 SCC 99)
(SCC at p 111) : (AIR 1992 SC 789), this
Court approved of recruitment through
employment exchanges as a method of
preventing
malpractices.
But
in
the
subsequent and more recent case of Excise
Supdet. V. K.B.N. Visweshwara Rao,
(1996 AIR SCW 3979) this Court has
distinguished
Unionof
India
v.
Hargopal,((1987) 3 SCC 308 : AIR 1987
SC 1227), on the basis of special facts of
that case. It has observed that the better
course for the State would be to Invite
applications from employment exchanges
as well as to advertise and also give wide
publicity through T.V., Radio, etc. The
Court had to consider whether persons,
who had applied directly and not through
employment
exchanges
should
be
1544 INDIAN LAW REPORTS ALLAHABAD SERIES
considered. This Court upheld their claim
for consideration.

There are different methods of
inviting applications. The method adopted
in the exigencies of the situation in the
present case cannot be labelled as unfair,
particularly when, at the relevant time, the
two earlier decisions of this Court were in
vogue." 46. The Apex Court in the case of
Kailash Chand Sharma V. State of
Rajasthan, (2002) 5 JT (SC) 591 : ((2002)
6 SCC 562 : AIR 2002 SC 2877) had that
the award of bonus marks to the residents
of the district and the residents of the rural
areas
of
the
district
amounts
to
Impermissible discrimination and there is
no rational basis for such preferential
treatment. In paragraphs 14 and 15 of the
reports, the Apex Court has held as
follows : "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 admission to
professional
colleges,
it
has
been
suggested that residence within a district
or rural area 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 Art. 16(2) and in the light of
Art. 16(3). An argument of this nature files
in the face of the peremptory language of
Art. 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 be within a State,
region, district or less area within a
district cannot be a ground to accord
preferential treatment or reservation, save
as provided in Art. 16(3). It is not possible
to compartmentalize the State into district
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 Art. 16".

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 ground only of
religion, race, caste, sex, descent, place of
birth, residence or any of them. Bee it
noted that in the allied 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 the
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 (4A) and (4B), 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 (for place of birth) in so far as
1 All. Ambrish Kumar & Ors. Vs. State of U.P. & Ors.
1545
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 effect, is the
import of the expression 'only'."

47. In paragraphs 24, 25 and 32
the Apex Court further held as follows :

"24.
Before
examining
the
further pleas in support of the impugned
action taken by the State it would be
apposite to refer to the decision in State of
Maharashtra v. Raj Kumar, on which
reliance has been placed by the High
Court and reference has been made in the
course of arguments before us. In that case
a rule was made by the State of
Maharashtra that a candidate in order to
be treated as a rural candidate must have
passed S.C.C. examination which is held
from a village or a town having only 'C'
type municipality: The object of the rule,
as pointed out by this Court, was to
appoint candidates having full knowledge
of rural life and its problems so that they
would be more suitable for working as
officers in rural areas. The rule was struck
down on the ground that there was no
nexus between classification made and the
object sought to be achieved because "as
the rule stands any person, who may not
have lived in a village at all can appear
for S.C.C. examination from a village and
yet become eligible for selection,"The rule
was held to be violative of Articles 14 and
16. Another point discussed by the Court
about the propriety of giving bonus marks
for the rural candidates and the Court
held thus :

"The rules also provide that
viva-voce board would put relevant
questions to judge the suitability of
candidate for rural areas and to test
whether or not they have sufficient
knowledge of rural problems, and this no
doubt amounts to a sufficient safeguard to
ascertain the ability of the candidate
regarding his knowledge about the affairs
of the village. In such a situation there was
absolutely no occasion for making an
express provision for giving weightage,
which would virtually convert merit into
demerit and demerit into merit and would
be per se violative of Article 14 of the
Constitution as being an impermissible
classification. The rule of weightage as
applied
in
this
case
is
mainly
unreasonable and wholly arbitrary and
cannot be sustained."

25. This decision is not a direct
authority for the proposition that a citizen
cannot be preferred for employment under
the State on the ground that he or she hails
from rural area. However, what has been
laid down in regard to the first point
assumes some relevance in the cases on
hand. The criterion for Identifying a rural
candidate was held to be irrelevant, as it
had no nexus with the object sought to be
achieved. In the present case, the position
is much worse as the impugned circular
does not spell out any criteria or indicia to
determine whether an applicant is a rural
candidate."

32. The justifiability of the plea
stemming from the premise that uplifting
the rural people is an affirmative action to
improve their lot can be tested from the
1546 INDIAN LAW REPORTS ALLAHABAD SERIES
concrete situation which confronts us in
the present cases. We are here concerned
with the selections to the posts of teachers
of
primary
schools,
the
minimum
qualification being S.C.C. coupled with
basic training course in teaching. Can the
Court proceed on the assumption that the
candidates residing in the town areas with
their education in the schools or colleges
located in the towns or its peripheral
areas stand on a higher pedestral than the
candidates, who had studied in the rural
area schools or colleges? Is the latter
comparatively
a
disadvantaged
and
economically
weaker
segment
when
compared to the former? We do not think
so. The aspirants for the teachers jobs in
primary schools be they from rural area or
town area do not generally belong to
affluent class. Apparently they come from
lower middle class or poor background.
By and large, in the pursuit of education,
they suffer and share the same handicaps
as their fellow citizens in rural areas. It
cannot be said that the applicants from
non-rural areas have access to best of the
schools and colleges which the well-to-do
class may have. Further, without any data,
it is not possible to presume that the
schools and colleges located in the townsmall or big and their peripheral areas are
much better qualitatively, that is to say,
from the point of view of teaching
standards or infrastructure facilities so as
to give an edge to the town candidates
over the rural candidates."

48. The Apex Court also repelled
the plea regarding local dialect and
residence of rural area with the following
observations ((2002) 6 SCC 562 : AIR
2002 SC 2877, Paras 36, 39):

"Shri Rajeev Dhawan appearing
for the selected candidates, who have filed
S.L.P. (C) No. 10780 of 2001, did his best
to support the impugned circular mainly
on the second ground, namely, better
familiarity with the local dialect. The
learned counsel contends that when the
teachers are being recruited to serve in
gram panchayat areas falling within the
concerned panchayat samiti, those hailing
from the particular district and the rural
areas of that district are better suited to
teach the students within that district and
the panchayat areas comprised therein. He
submits that the local candidates can get
themselves better assimilated into the local
environment and will be in a better
position to interact with the students at
primary level. Stress is laid on the fact that
though the language/mother tongue is the
same, the dialect varies from district to
district and even within the district. By
facilitating selection of local candidates to
serve the panchayat run schools, the State
has not introduced any discrimination on
the ground of residence but acted in
furtherance
of
the
goal
to
impart
education. Such candidates will be more
effective as primary school teachers and
more suitable for the Job. It is therefore,
contended
that
the
classification
is
grounded on considerations having nexus
with the object sought to be achieved and
is not merely related to residence. We find
it difficult to accept this contention, though
plausible it is. We feel that undue accent is
being laid on the dialect theory without
factual foundation. The assertion that
dialect and nuisances of the spoken
language varies from district to district is
not based upon empirical study or survey
conducted by the State. Not even specific
particulars are given in this regard. The
stand in the counter-affidavit (extracted
supra) is that each zone has its distinct
language. "If that is correct the Zila
Parishad should have mentioned in the
notification that the candidates should
know particular language to become
1 All. Ambrish Kumar & Ors. Vs. State of U.P. & Ors.
1547
eligible for consideration. We are inclined
to think that reference has been made in
the counter to 'language' ; instead of
dialect rather inadvertently. As seen from
the previous sentence, the words dialect
and
language
are
used
as
Interchangeable expressions, without perhaps
understanding the distinction between the
two. We therefore, take it that what is
meant to be conveyed in the counter is that
each zone has a distinct dialect or
vernacular and therefore local candidates
of the district would be in a better position
to teach and interact with the students. In
such a case, the State Government should
have identified the zones in which
vernacular dissimilarities exist and the
speech and dialect vary. That could only
be done on the basis of scientific study and
collection of relevant data. It is nobody's
case that such an exercise was done. In
any case, if these differences exist zonewise or region-wise, there could possibly
be no justification for giving weightage to
the candidates on the basis of residence in
a district. The candidates belonging to that
zone, irrespective of the fact whether they
belong to X, Y or Z district of the zone
could very well be familiar with the
allegedly different dialect peculiar to that
zone. The argument further breaks down,
if tested from the standpoint of award of
bonus marks to the rural candidates. Can
it be said reasonably that candidates, who
have settled down in the town will not be
familiar with the dialect of that district?
Can we reasonably proceed on the
assumption that rural area candidates are
more familiar with the dialect of the
district rather than the town area
candidates of the same district? The
answer to both the questions in our view
cannot be in the negative. To prefer the
educated people residing in villages over
those residing In towns-big or small of the
district, on the mere supposition that the
former (rural) candidates will be able to
teach the rural students better would only
amount to creating an artificial distinction
having no legitimate connection to the
object sought to be achieved. It would then
be a case of discrimination based
primarily on residence which is prescribed
by Article 16(2)". "38. One more serious
infirmity in the impugned circular is that it
does not spell out any criteria or indicia
for determining whether the applicant is a
resident of rural area. Everything is left
held with the potential of giving rise to
varying interpretations thereby defeating
the apparent objective of the rule. On
matters such as duration of residence,
place of schooling etc. there are bound to
be controversies. The authorities, who are
competent to issue residential certificates
are left to apply the criteria according to
their thinking which can by no means be
uniform.
The
decision
in
State
of
Maharashtra v. Raj Kumar, is illustrative
of the problem created by vague or
irrelevant criteria. In that case a rule was
made by the State of Maharashtra that a
candidate will be considered a rural
candidate if he had passed S.S.C.
examination held from a village or a town
having only 'C' type municipality. The
object of the rule, as noticed by this Court,
was to appoint candidates having full
knowledge of rural life so that they would
be more suitable for working as officers in
rural areas. The rule was struck down on
the ground that there was no nexus
between classification made and the object
sought to be achieved because "as the rule
stands, any person, who may not have
lived in a village at all can appear for
S.S.C. examination from village and yet
become eligible for selection." The rule
was held to be violative of Articles 14 and
16. When no guidance at all is discernible
1548 INDIAN LAW REPORTS ALLAHABAD SERIES
from the Impugned circular as to the
identification of the residence of the
applicants especially having regard to the
Indefinite nature of the concept of
residence, the provision giving the benefit
of bonus marks to the rural residents will
fall foul of Article 14.

49. The aforementioned decision
has been subsequently followed by the
Apex Court in the case of Harshendra
Choubissa v. State of Rajasthan, (2002) 6
JT (SC) 553: ((2002) 6 SCC 393 : AIR
2002 SC 2897). In paragraph 12 of the
report, the Apex Court has held as follows
:

"12. The second ground urged
by the State is equally Irrelevant and
untenable. Most of the reasons given by us
in the judgment just delivered in teachers'
cases will hold good to reject this plea. No
factual details nor material has been
placed before us to substantiate that the
spoken language and dialect varies from
district to district. It will not be reasonable
to assume that an educated person
belonging to a contiguous district or
districts will not be able to effectively
communicate with the people of the district
in which he is appointed or that he would
be unfamiliar with the living conditions
and culture of that district. He cannot be
regarded as an alien in a district other
than
his
native
district.
If
any
classification has to be done in this
regard, it should be based on a scientific
study
but
not
on
some
broad
generalization. If any particular region or
area has some peculiar socio-cultural or
linguistic
features
warranting
a
differential treatment for the purpose of
deploying personnel therein, that could
only be done after conducting a survey
and identifying such regions or districts.
That is the minimum, which needs to be
done.