# KAILASH CHAND SHARMA ETC. ETC v. STATE OF RAJASTHAN AND ORS

- **Citation:** [2002] Supp. 1 S.C.R. 317
- **Court:** Supreme Court of India
- **Decided:** 2002-07-30
- **Bench:** D.P. Mohapatra, P. Venkatarama Reddi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kailash-chand-sharma-etc-etc-v-state-of-rajasthan-and-ors-18618
- **Pages:** 35

## Headnote

B
Rajasthan Panchayati Raj Rules, 1996-Rule 273 and its proviso--
Circular providing bonus marks to the residents of district and of rural areas
<?fthe district/or selection to public employment-Validity of-Held, amounts C
to impermissible discrimination-Reasons for classification are either nonexistent or irrelevant and have no nexus with the object sought to be achievedHigh Court Judgment to have prospective effect in view of the fact that the
Circular was challenged only after selection process was completed and in
view of earlier decisions of the High Court holding the field-Relief confined
only to writ petitioners before High Court-Relief granted under Article I 42 D
of the Constitution of India in special facts and circumstances of the caseConstitution of India, I 950-Articles 14, I 6 and 142.
Constitution of India, 1950:
Article 16 (1),(2) and (3)-Preferential treatment in public employment E
on the ground of residence in particular areo-Held residence by itself cannot
be a ground to accord preferential treatment or reservation, save as provided
in Article I 6(3).
Article 16(2)-Prohibitory mandate under-Held is not attracted if the
alleged discrimination is on grounds not merely related to residence, but the F
factum of residence is only taken into account in addition to other relevant
factors.
Policy Decision of Government-Propriety of and interference with-If
it is subversive of the doctrine of equality, it cannot sustain-It should be free G
from the vice of arbitrariness and conform to the norms both positive and
negative underlying Articles 14 and 16 of the Constitution.
Prospective overruling:
Public employment-Circular providing for bonus marks to rural H
317
318
SUPREME COURT REPORTS [2002] SUPP. 1 S.C.R.
A candidates-Challenge thereto upheld by High Court-Since challenge was
made after selection process was completed and in view of earlier decisions
of the High Court holding the field, the judgment will operate prospectivelyPrecedents-Judgment-Operation of
Precedents-Relief moulded in order to render complete justice in specific
B cases based on special facts and circumstances-Not to be treated as precedent.
A Circular was issued providing for bonus marks of 10%+5% for
the residents of districts and rural areas of districts for selection to the
posts of primary school teachers. Unsuccessful candidates-petitioners filed
C writ petition before High Court challenging the Circular. In the meantime,
select lists were published in some districts. Full Bench of High Court
declared the Circular illegal and unconstitutional following the decision
in Deepak Kumar Suthar v. State of Rajasthan, (1999) 2 RLR 692. Thereafter
one more batch of writ petitions was disposed of by Single Judge of High
Court directing fresh merit list to be prepared in respect of the candidates
D who were appointed on or before 21.10.1999 (i.e. the date of judgment in
Deepak Kumar's case) without considering the bonus marks.
·E
F
In appeal to this Court, the State and the counsel appearing for
successful candidates contended that in view of social, economic '
backwardness of the area residence within the district or rural areas of
that district could be a valid basis for classification for the purpose of
public employment as well; that the award of bonus marks to the residents
of rural areas is a measure of affirmative action or c'ompensatory
discrimination to help a disadvantaged section namely the rural people;
that the classification is grounded on considerations having nexus with the
object sought to be achieved and is not merely related to residence; that
residents of town and other districts if appointed will not be willing to serve
the rural areas and they will be more interested in getting themselves
transferred to relatively urban areas and forward districts; and that those
belonging to the same district and rural areas in that district will be better
G familiar with local dialect. It is also contended that there is no rationale
prescribi

## Text

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KAILASH CHAND SHARMA ETC. ETC.
A
v.
STATE OF RAJASTHAN AND ORS.
JULY 30, 2002
[D.P. MOHAPATRA AND P. VENKATARAMA REDDI, JJ.]
B
Rajasthan Panchayati Raj Rules, 1996-Rule 273 and its proviso--
Circular providing bonus marks to the residents of district and of rural areas
<?fthe district/or selection to public employment-Validity of-Held, amounts C
to impermissible discrimination-Reasons for classification are either nonexistent or irrelevant and have no nexus with the object sought to be achievedHigh Court Judgment to have prospective effect in view of the fact that the
Circular was challenged only after selection process was completed and in
view of earlier decisions of the High Court holding the field-Relief confined
only to writ petitioners before High Court-Relief granted under Article I 42 D
of the Constitution of India in special facts and circumstances of the caseConstitution of India, I 950-Articles 14, I 6 and 142.
Constitution of India, 1950:
Article 16 (1),(2) and (3)-Preferential treatment in public employment E
on the ground of residence in particular areo-Held residence by itself cannot
be a ground to accord preferential treatment or reservation, save as provided
in Article I 6(3).
Article 16(2)-Prohibitory mandate under-Held is not attracted if the
alleged discrimination is on grounds not merely related to residence, but the F
factum of residence is only taken into account in addition to other relevant
factors.
Policy Decision of Government-Propriety of and interference with-If
it is subversive of the doctrine of equality, it cannot sustain-It should be free G
from the vice of arbitrariness and conform to the norms both positive and
negative underlying Articles 14 and 16 of the Constitution.
Prospective overruling:
Public employment-Circular providing for bonus marks to rural H
317
318
SUPREME COURT REPORTS [2002] SUPP. 1 S.C.R.
A candidates-Challenge thereto upheld by High Court-Since challenge was
made after selection process was completed and in view of earlier decisions
of the High Court holding the field, the judgment will operate prospectivelyPrecedents-Judgment-Operation of
Precedents-Relief moulded in order to render complete justice in specific
B cases based on special facts and circumstances-Not to be treated as precedent.
A Circular was issued providing for bonus marks of 10%+5% for
the residents of districts and rural areas of districts for selection to the
posts of primary school teachers. Unsuccessful candidates-petitioners filed
C writ petition before High Court challenging the Circular. In the meantime,
select lists were published in some districts. Full Bench of High Court
declared the Circular illegal and unconstitutional following the decision
in Deepak Kumar Suthar v. State of Rajasthan, (1999) 2 RLR 692. Thereafter
one more batch of writ petitions was disposed of by Single Judge of High
Court directing fresh merit list to be prepared in respect of the candidates
D who were appointed on or before 21.10.1999 (i.e. the date of judgment in
Deepak Kumar's case) without considering the bonus marks.
·E
F
In appeal to this Court, the State and the counsel appearing for
successful candidates contended that in view of social, economic '
backwardness of the area residence within the district or rural areas of
that district could be a valid basis for classification for the purpose of
public employment as well; that the award of bonus marks to the residents
of rural areas is a measure of affirmative action or c'ompensatory
discrimination to help a disadvantaged section namely the rural people;
that the classification is grounded on considerations having nexus with the
object sought to be achieved and is not merely related to residence; that
residents of town and other districts if appointed will not be willing to serve
the rural areas and they will be more interested in getting themselves
transferred to relatively urban areas and forward districts; and that those
belonging to the same district and rural areas in that district will be better
G familiar with local dialect. It is also contended that there is no rationale
prescribing a cut off date with reference to the date of judgment and hence
the entire selection process should be kept out of the clutches of the
impugned judgment.
The petitioners-unsuccessful candidates contended that the impugned
H circular is unconstitutional, as held by the High Court and that there is
KAILASH CHAND SHARMA v. STATE
319
no warrant to invoke the theory of prospective overruling to validate A
unconstitutional appointments especially when such appointments were
made during the pendency of the writ petitions and some of the
appointments were made after the matter was referred to the full Bench;
and that the appointment orders issued after the first Full Bench judgment
which was rendered on 21.10.99 should not be validated.
Disposing of the appeals and dismissing the writ petition filed in
Supreme Court belatedly, the Court
B
HELD: I.I. Award of bonus marks to the residents of the district
and the residents of the rural areas of the district amounts to impermissible C
discrimination. There is no rational basis for such preferential treatment
on the material available before the Court. The ostensible reasons put
forward to distinguish the citizens residing in the State are either nonexistent or irrelevant and they have no nexus with the object sought to be
achieved, aamely, spread of education at primary level. The offending part
of Circular has the effect of diluting merit, without in any way promoting D
the objective. The impugned Circular in so far as the award of bonus
marks is concerned, has been rightly declared to be illegal and
unconstitutional by the High Court. [343-H; 344-A-B]
1.2. Though the impugned Circular is the product of the policy
decision taken by the State Government, even then, such decision has to E
pass the test of Articles 14 and 16 of the Constitution. If the policy decision,
which in the present case has the undoubted effect of deviating from the
normal and salutary rule of selection based on merit is subversive of the
doctrine of equality, it cannot sustain. It should be free from the vice of
arbitrariness and conform to the well-settled norms, both positive and F
negative, underlying Articles 14 and 16, which together with Article 15
form part of the Constitutional code of equality. [327-H; 328-A-B)
1.3. 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 G
compartmentalize the State into Districts with a view to offer employment
to the residents of that District on a preferential basis. An argument to
this effect flies in the face of the peremptory language of Article 16(2) and
runs counter to constitutional ethos founded on unity and integrity of the
nation. (328-D-F-G)
H
320
SUPREME COURT REPORTS [2002] SUPP. 1 S.C.R.
A
1.4. On a reading _of Article 16, two things are clear: firstly,
discrimination only on the ground of residence (or place of birth) in so
far 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. In the absence of parliamentary law, even the
B 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,
C is the import of the expression 'only'. [329-C-D-E)
A. V.S. Narsimha Rao v. State of A.P., [1970) 1 SCR 115; Pradeep Jain
v. Union of India, AIR (1984) SC 1420 and Govind A. Mane v. State of
Maharashtra, [2000) 4 SCC 200, referred to.
D
1.5. It is trite to say that India lives in villages and inhabited
predominantly by poorer sections of people. The people in the rural areas
suffer many handicaps especially in the sphere of education. But the
assumption that the proportion of employment of rural residents is much
less than that of the residents in the towns and that the educated people
in the rural areas are economically weaker than those living in towns are
E not based upon any data or concrete material. Argument built up on this
plea falls more in the realm of platitudes rather than affording a solid basis
for the classification. [337-A, B-D, E]
F
1.6. Court cannot 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 pedestal than
the candidates who had studied in the rural area schools or colleges and
that the latter is comparatively a disadvantaged and economically weaker
segment when compared to the former. The aspirants for the teachers'
jobs in primary schools-be they from rural area or town area-do not
G generally belong to affluent class. Further, without any data, it is not
possible to presume that the schools and colleges located in the towns-small
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.
H
(340-B-C-D]
KAILASH CHAND SHARMA v. STATE
321
Nidamarti Maheshkumar v. State of Maharashtra, (1986) 2 SCC 534; A
State of U.P. v. Pradip Tandon, (1975) I SCC 267 and Pradeep Jain v.
Union of India. AIR (1984) SC 1420, relied on
State of Maharashtra v. Raj Kumar, AIR (1982) SC 1301, referred to.
I. 7. The assertion that dialect and nuances of the spoken language B
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 that "each zone has its distinct language", if is correct,
the Zila Parishad should have mentioned in the notification that the
candidates should know particular language to become eligible for
consideration. The State Government should have identified·the zones in C
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. If these differences
exi.st zone-wise or region-wise, there could possibly be no justification for
giving weightage to the candidates on the basis of residence in a district. D
Court cannot 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. To prefer the educated
people residing in villages over those residing in towns- big or small of
the same district, on the mere supposition that the former (rural
candidates) will be able to teach the rural students better would only E
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 Art.
16(2). (342-C-H; 343-A, BJ
1.8. Residents of towns, if appointed will not be willing to serve the F
rural areas and they will be more interested in getting themselves
transferred to "relatively urban areas and forward districts", does not
stand scrutiny. The apprehension that 'teacher absenteism' will be
rampant if non-rural candidates are appointed, is based on irrelevant and
unwarranted assumptions. First of all, postings and transfers are G
managerial functions. The concerned authorities in-charge 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 reason that the appointees would have no option but to work in villages H
322
SUPREME COURT REPORTS [2002) SUPP. 1 S.C.R.
A coming within the jurisdiction of the concerned Panchayat Samiti.
[343-C, DJ
1.9. When no guidance at all is discernible 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
B provision giving the benefit of bonus marks to the rural residents will fall
foul of Article 14 in this ground also. [344-FJ
2. I. Moreover, in almost all the writ petitions the candidates
appointed or selected, were not made parties before the High Court. That
is the added reason why the judgment treading a new path should not as
C far as possible result in detriment to the candidates already appointed.
(348-B-D)
2.2. In view of the rival contentions, the factual scenario and the need
to balance the competing claims in the light of acceptance of prospective
D overruling in principle, it is just and proper to confine the relief only to
the petitioners who moved the High Court. The claims of the writ
petitioners should be considered afresh in the light of this judgment vis a
vis the candidates appointed on or after 18.11.99 or those in the select list
who are yet to be appointed; and that the appointments made upto
17.11.1999 need not be reopened and re-considered. [349-H; 350-A, B, C)
E
F
G
2.3. The relief, in these matters is moulded on the special facts and
circumstances of the case, acting within the framework of the power under
Article 142 of the Constitution. In so far as the relief has been granted or
modified in the manner aforesaid, this judgment may not be treated as a
binding precedent. (350-E)
Golak Nath, State of Punjab, ( 1967) 2 SCR 762; Managing Director v.
B. Karunakar, [1993) 4 SCC 727, referred to.
CIVIL APPEL LA TE JURISDICTION : Civil Appeal No. 4417 of
2002.
From the Judgment and Order dated 18.11.1999 of the Rajasthan High
Court in S.B.C.W.P. Nos. 3928 of 1998.
WITH
CA Nos.4418-21, 4423, 4427-4429, 4431, 4432, 4437, 4438-39, 4434,
H 4443, 4444, 4445, 4446-47, 4449, 4450, 4451, 4452, 4453, 4454, 4455,
•'
t r
..
KAILASH CHAND SHARMA v. STA TE [P. VENKATARAMA REDDI, J.]323
4456, 4457, 4458-60, 4461, 4462, 4463, 4464, 4465, 4466, 4435, 4436/02 A
W.P. (C) No. 542/2000 4440 and 4441-4442 of 2002.
M.N. Krishnamani, Dr. Rajeev Dhawan, U.N. Bachawat, Dr. A.M.
Singhvi, P.P. Rao and Vijay Bahuguna, P.K. Jain, P.K. Goswami, Ms. Pratibha
Jain, A. Mishra, Ms. Ruchi Kohli, Sushi! Kumar Jain, Manish Singhvi for
Ranji Thomas, Javed M. Raom Ranbir Yadav, Ajay Kumar, Kanhiya B
Priyadarshi, Pallav Shishodia, Hemani Shanna, Ms. Shalini Shishodia, Ms.
Shobha, Manu Mridul, Devendra Nagar, Surya Kant, Bhava Dutt Shatma,
Mahabir Singh, Manoj Prasad, Atul Kumar, Prashant Kumar, Prashenjit
Keswani, Joseph Pookkatt, Rakesh Garg, K.S. Rana, C.N. Sree Kumar, Dr.
Surat Singh, Ashok Mahajan, Jagdev Singh, K.K. Gupta, Ashok K. Chauhan C
and Jagdev Singh for the appearing parties.
The Judgment of the Court was delivered by
P.VENKATARAMA REDD!, J. Leave to appeal granted.
Consequently, the appeals are taken on file and being disposed of by this D
common Judgment.
The selections held and the consequential appointments made to \he
posts of primary school teachers by the Zila Parishads of various districts' in
the State of Rajasthan during the year 1998-1999 have given rise to these
appeals. The full Bench judgment of Rajasthan High Court dated 18.11.1999 E
in Kai/ash Chand Sharma (Petitioner in first of the appeals corresponding to
SLP (C) No. 1824/2000) v. State of Rajasthan and connected Writ Petitions
are under challenge in these appeals apart from the Division Bench Judgment
in State of Rajasthan v. Naval Kishore Sharma. The full Bench followed its
earlier judgment in Deepak Kumar Suthar v. State of Rajasthan (W.P. (C)
No. 191711995) and disposed of the Writ Petitions on the same tetms as in F
the previous full Bench reference case. At the outset, it may be stated that the
judgment of the full Bench rendered on October 21, 1999 in Deepak Kumar's
case (reported in 1999 (2) RLR 692) was in relation to the selection of
teachers Grade II and Grade III which was pursuant to the advertisement
issued by the Director, Primary and Secondary Education during the year G
1995. The said posts of teachers Grade II and Grade III are borne in State
cadre under the administrative control of Education Department of the State
Government. The second full Bench judgment, as already noted, was in the
context of selections to the posts of teachers district-wise coming within the
fold of respective Zita Parishads. In the impugned judgment the full Bench,
however, did ~ot see any impediment in applying the ratio of the previous H
324
SUPREME COURT REPORTS (2002] SUPP. l S.C.R.
A judgment. The full Bench observed that "merely because the employment
relates to the Panchayats, that does not make any difference in the light of
the law laid down in the full Bench judgment aforementioned". What was
called in question by the unsuccessful candidates who filed their applications
and appeared before the o. l Selection Boards was the award of bonus marks
B to the applicants belonging to the District and the rural areas of the district
concerned. The first full Bench (in the case of Deepak Kum'2r v. State) held
that award of such bonus marks was unconstitutional and the relevant clause
in the circular providing for bonus marks was void. The learned Judges
observed that "this kind of weightage would give a complete go-bye to the
merit of the candidates and would seriously affect the efficiency of
C administration/teaching". The full Bench answered the reference holding that
"any kind of weightage/advantage in public employment in any State service
is not permissible on the ground of place of birth or residence or on the
ground of being a resident of urban area or rural area.". Having so declared
the law, the full Bench gave the following directions in the concluding para
of the judgment :
D
E
F
G
"Instead of sending the matter to the appropriate bench, we think it
proper to dispose of this petition with a direction that no relief can
be granted to the petitioners as they could not succeed to get the
place in the merit list even by getting 10 bonus marks being residents
of urban area, for which they are certainly not entitled. More so, the
petitioners have not impleaded any person from the select list, riot
even the last selected ·candidate. Thus, no relief can be granted to
them inspite of the fact that the appointments made in conformity of
the impugned Circular have not been in consonance with law.
However, we clarify that any appointment made earlier shall not be
affected by this judgment and it would have prospective application".
It is this decision that was followed by the full Bench in the impugned
judgment and the batch of Writ Petitions were disposed ofaccordingly. Against
this judgment SLPs were filed by the original writ petitioners (six in number)
as well as the State Government and the Zita Parishad.
After the full Bench judgment one more batch of writ petitions came
to be disposed of by a learned single Judge of the High Court on 26.2.2001
directing a fresh merit list to be prepared in respect of the candidates who
were not appointed on or before 21.10.1999 without regard to the bonus
marks. Appeals against this judgment were filed by the State Government
H and other authorities. The Division Bench by its order dated 13.4.2001
•
I
KAILASH CHAND SHARMA v. STA TE [P. VENKAT ARAMA REDD!, J. J325
dismissed those appeals. Questioning the same, SLPs were filed by the State A
as well as certain affected parties who were granted leave to appeal.
Coming to the specific facts relevant to the present appeals, at the
threshold, we should make a reference to the circular issued by the Department
of Rural Development and Panchayat Raj bearing the date 10.6.1998, which
deals with the subject of procedure to be followed for appointment to the B
vacant posts of teachers during the years 1998-1999 by way of direct
recruitment. This circular was issued in supercession of earlier orders on the
subject. It is seen from the circular that 584 7 posts were sanctioned by the
Finance Department of the Government and the appointments were to be
made to the vacancies for which sanction was accorded. The Chief Executive C
Officers-cum-Secretaries of Zila Parishads were required to issue the
advertisements by 15.6.1998 and to.have them published in the newspapers
by 20.6.1998. According to the schedule given in the circular, the process of
issuing appointment orders was to be completed by 14.8.1998. That it did not
actually happen is a different matter. The circular which is quite comprehensive
deals with various aspects. We are only concerned with the following D
provisions in the circular having a bearing on the determination of merit of
the applicant/candidate. It reads as follows :
"This year, determination of merit has been amended and determination
of merit will be done as follows:-
I. Marks for educational qualification :-
S.No.
Qualification
Weightage
I.
Secondary Examination
50%
2.
Senior Secondary Examination
20%
3.
S.T.C./B.Ed.
30%
II.
Fixation of Bonus marks for domiciles
Domiciles of Rajasthan
Resident of District
Resident of Rural area of Distt.
- IO marks
- 10 marks
- 5 marks
E
F
G
The other criteria evolved for award of marks under the head 'academic
achievements', bonus marks for sports etc. need not be quoted. More
particularly, we are concerned with Para II (supra) i.e., bonus marks for
'domiciles'. It may be mentioned that there is no dispute in so far as the
award of bonus marks to the 'domiciles' of the State of Rajasthan. The H
326
SUPREME COURT REPORTS (2002] SUPP. I S.C.R.
A controversy is only with regard to Items 2 and 3 i.e. l 0 marks for residence
in the District concerned and 5 marks for residence in rural areas of the
concerned district. It may be noted that there was no written examination.
The interview was of a formal nature as ·there was no assessment of
comparative merit therein.
B
c
D
The above Circular is traceable to the power conferred on the State
Government under the proviso to Rule 273 occurring in Chapter XII of the
Rajasthan Panchayat Raj Rules I 996, according to which the selection for
various posts shall be made in accordance with the general directions given
by the State Government from time to time in this respect.
In order to give effect to the orders of the State Government the Zila
Parishads issued advertisements round about 15th June, 1998 calling for
applications. It is seen from the advertisement issued by the Zila Parishad,
Barmer, the following qualifications are mentioned therein:-"
*
l. Senior secondary under New (10+2) scheme from Secondary
Education Board, Rajasthan or Higher secondary or equivalent under
the old scheme or secondary school certificate or equivalent from
secondary school Education Board Rajasthan with 5 subjects including
Sanskrit, Maths, English and Hindi."
E
Some of the candidates hailing from different districts or towns who
were not eligible for bonus marks (l 0+5) filed the Writ Petitions under Article
226 of the Constitution questioning the circular of the State Government
(Rural Development and Panchayat Raj Department) prescribing the bonus
marks as afore-mentioned and seeking appropriate directions for their
consideration without reference to bonus marks. This was done after they
F appeared for formal interviews. By then, the select lists were published in
some Districts and in some other Districts, though they were presumably
prepared, further action was kept in abeyance for certain reasons, including
the pendency of the Writ Petitions. When the matter came up for hearing
before a learned single Judge, he felt that earlier Division Bench decisions of
G the Court in Arvind Kumar Gochar and Baljeet Kaur's case needed
reconsideration. Accordingly, the learned single Judge suggested to the learned
Chief Justice to constitute full Bench. At the same time, he stayed the final
selection pursuant to various advertisements involved in the writ petition for
three months in the hope that in the meanwhile the larger Bench will decide
the issue. That is how the full Bench was constituted. To recapitulate the
H sequence, it may be noted that the first full Bench decision in Deepak Kumar's
KAI LASH CHAND SHARMA v. STATE [P. VENKATARAMA REDD!, J.]327
case relating to appointments in the Education Department was decided on A
21.10.1999. The second full Bench dealing with the cases on hand gave its
verdict on 18.11.1999. During the interregnum between the first full Bench
judgment and the second full Bench decision, it appears that appointment
orders were issued to the selected candidates in some of the districts. The
process of issuing appointment letters seems to have continued even after the B
second full Bench judgment i.e. after 18. l l.1999.
In this factual background, the S.L.Ps came to be filed in this Court.
Those who have filed S.L.Ps fall under four categories:
(1) Those filed by the original writ petitioners who were aggrieved
by the direction in the judgment either confining its application
prospectively or denying relief on the ground that writ petitioners
would not have been selected even if I 0 or 15 bonus marks are
excluded. The appellant in the first of these appeals Kailash
Chand Sharma-belongs to this category. He hails from the
district of Karouli and he applied for the job in Barmer district.
(2) Those candidates who have not been offered appointment, though
selected on the strength of the weightage accorded for residents
of the district and rural areas comprised therein.
(3) Those selected on the basis of weightage and appointed after 2110-99, whose appointments were likely to be cancelled in view
of the directions in the impugned judgments.
(4) Official respondents in the Writ Petitions, viz., State of Rajasthan
and Zila Parishads.
In categories 2 and 3 above, persons who were not parties in the High
Court have sought permission of this Court to file SLPs, which was granted.
The first and foremost question that would arise for consideration in
c
D
E
F
this group of appeals is, whether the circular dated 10.6.1998 providing for
bonus marks for residents of the concerned district and the rural areas within G
that district is constitutionally valid tested on the touch stone of Article 16
read with Article 14 of the Constitution? It is on this aspect, learned senior
counsel appearing for the candidates concerned have argued at length with
admirable clarity, making copious reference to several pronouncements of
this Court. There can be little doubt that the impugned circular is the product H
of the policy decision taken by the State Government. Even then, as rightly
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A pointed out by the High Court, such decision has to pass the test of Articles
14 and 16 of the Constitution. If the policy decision, which in the present
case has the undoubted effect of deviating from the normal and salutary rule
of selection based on merit is subversive of the doctrine of equality, it cannot
sustain. It should be free from the vice of arbitrariness and conform to the
B well-settled norms both positive and negative underlying Articles 14 and 16,
which together with Article 15 form part of the Constitutional code of equality.
In order to justify the preferential treatment accorded to residents of the
district and the rural areas of the district in the matter of selection to the posts
of teachers, the State has come forward with certain pleas either before the
C High Court or before this Court. Some of these pleas are pressed into service
by the learned counsel appearing for the parties who are the possible
beneficiaries under the impugned order of the Govt. Such pleas taken by the
State Government and from which support is sought to be drawn by the
individual parties concerned will be referred to a· little later.
D
Before proceeding further we should steer clear of a misconception that
surfaced in the course of arguments advanced on behalf of the State' and
some of the parties. Based on the decisions which countenanced geographical
classification for certain weighty reasons such as socio-economic backwardness
of the area for the purpose of admissions to professional colleges, it has been
E 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 Art. 16(3). An argument of this nature flies in the face of the
F
peremptory language of Article 16 (2) and runs counter to our constitutional
ethos founded on unity and integrity of the nation. Attempts to prefer
candidates of a local area in the State were nipped in the bud by this Court
since long past. We would like to reiterate that residence by itself-be it within
a State, region, district or lesser area within a district cannot be a ground to
accord preferential treatment or reservation, s~ve as provided in Article 16(3).
G It is not possible to compartmentalize the State into Districts with a view to
offer employment to the residents of that District on a preferential basis. At
this juncture it is appropriate to undertake a brief analysis of Article 16.
Article 16 which under clause (1) guarantees equality of opportUnity
for all citizens in matters relating to employment or appointment to any
H office under the State reinforces that guarantee by prohibiting under clause
KAILASH CHAND SHARMA v. STATE [P. VENKA TARAMA REDDI, J. J329
(2) discrimination on the grounds only of religion, race, caste, sex, descent, A
place of birth, residence or any of them. Be it noted that in the allied Article--
Art. 15, the word 'residence' is omitted from the opening clause prohibiting
discrimination on specified grounds. Clauses (3) and (4) of Article 16 dilutes
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 B
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 C
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) in so far 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
D
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 E
of residence is only taken into account in addition to other relevant factors.
This, in effect, is the import of the expression 'only'.
Let us now turn our attention to some of the decided cases. As far back
as in 1969 a Constitution Bench of this Court in A. V.S Narasimha Rao v.
State of A.P., [1970] 1 SCR 115 declared that the law enacted by the Parliament F
in pursuance of Clause (3) of Article 16 making a special provision for
domicile within the Telengana region of the State of Andhra Pradesh for the
purpose of public employment within that region and the rules made thereunder
as ultra vires the Constitution. Pursuant to the enabling power conferred
under Section 3 of the Public Employment (Requirement as to Residence) G
Act, Rules were made making a person ineligible for appointment to a post
within the Telengana area under the State Government of A.P. or to a post
under a local authority in the said area unless he has been continuously
residing within the said area for a period of not less than 15 years immediately
preceding the prescribed date. The Government issued an order relieving all
'non-domicile' persons appointed on or after 1.11.1956 to certain categories H
330
SUPREME COURT REPORTS [2002) SUPP. I S.C.R.
A of posts reserved for domiciles ofTelengana under the A.P. public employment
(Requirement as to Residence) Rules. Such incumbent of post was to be
employed in the Andhra region by creating a supernumerary post, if necessary.
This legislative and executive action was struck down by this Court. After
referring to Article 16, the Court observed:
B
c
D
"The intention here is to make every office or employment open and
available to every citizen, and inter alia to make offices or employment
in one part of India open to citizens in all other parts of India. The
third clause then makes an exception ................................................... .
The legislative power to create residential qualification for
employment is thus exclusively conferred on Parliament. Parliament
can make any law, which prescribes any requirement as to residence
within the State or Union territory prior to employment or appointment
to an office in that State or Union territory. Two questions arise here,
firstly, whether Parliament, while prescribing the requirement, may
prescribe the requirement of residence in a particular part of the State
and, secondly, whether Parliament can delegate this function by making
a declaration and leaving the details to be filled in by the rule making
power of the Central and State Governments."
The argument that a sweeping power was given to the Parliament to make
E any. law as regards residential requirement was repelled thus:
F
G
H
"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
kirld . 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
KAILASH CHAND SHARMA v. STATE [P. VENKATARAMA REDD!, J.]331
qualification and it is impossible to think that the Constituent Assembly A
was thinking of residence in Districts, Taluqas, cities, towns or villages.
The fact that this clause is an exception and came as an amendment
must dictate that a narrow construction upon the exception should. be
placed as indeed the debates in the Constituent Assembly also seem
to indicate."
Thus, this Court was not inclined to place too wide an interpretation on
Art. 16(3), keeping broadly in view the constitutional philosophy.
B
In Pradeep Jain v. Union of India, AIR (1984) SC 1420 though the
Court was concerned with the question whether residential requirement or C
institutional preference in admissions to technical and medical colleges can
be constitutionally permissible in the light of Article 15 (I) and 15 (4),
Bhagwati, J. speaking for the Court expressed his prima facie opinion thus
as regards residential requirement in the field of public employment:
"We may point out at this stage that though Art. 15(2) bars D
discrimination on grounds, not only of religion, race, caste or sex but
also on place of birth, Art 16 (2) goes further and provides that 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 State employment. So far as employment E
under the State or any local or other authority is concerned, no citizen
can be given preference nor can any discrimination be practised against
him on the ground only of residence. It would thus appear that
residential requirement would be unconstitutional as a condition of
eligibility for employment or appointment to an office under the State
.......................... But, Art. 16(3) provides an exception to this rule by F
laying down that Parliament may make a 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 in, a State or Union
Territory, any requirement as to residence within that State or Union
territory prior to such employment or appointment." Parliament alone G
is given the right to enact an exception to the ban on discrimination
based on residence and that too only with respect to positions 'within
the employment of a State Government. But even so, wil4out any
parliamentary enactment permitting them to do so many of the State
Governments have been pursuing policies of localism since long and
these policies are now quite widespread .. Parliament has in fact H
A
B
c
D
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SUPREME COURT REPORTS [2002) SUPP. I S.C.R.
exercised little control over these policies formulated by the States.
The only action, which Parliament has taken under Art. 16(3) giving
it the right to set a residence requirement has been the enactment of
the Public Employment (requirement as to Residence) Act, 1957 ..
There is therefore, at present no parliamentary enactment permitting
preferential policies based on residence requirement except in the
case of Andhra Pradesh, Manipur, Tripura and Himachal Pradesh
where the Central government has been given the right to issue
directions setting residence requirements in the subordinate services.
Yet, in the face of Art. 16(2) some of the States are adopting 'sons
of the soil' policies prescribing reservation or preference based on
domicile or residence requirement for employment or appointment to
an office under the Government of a State or ariy local or other
authority or public sector corporation or any other corporation which
is an instrumentality or agency of the State. Prima facie this would
seem to be constitutionally impermissible though we do not wish to
express any definite opinion upon it, since it does not directly arise
foi consideration in these writ petitions and civil appeal."
However, in so far as admissions to educational institutions such as
medical colleges are concerned, it was pointed out that Article 16(2) has no
application and residential requirement cannot per se be condemned as
E unconstitutional. It was observed that the only provision of the Constitution
on the touchstone of which such residence requirement can be tested is Article
14.