Sumit And 14 Others vs State Of U.P. And 2 Others
2019 Latest Caselaw 4231 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Reserved on: 2 May 2019
 
Delivered on: 8 May 2019
 

 
Court No. - 6
 

 
Case :- WRIT - A No. - 4714 of 2019
 

 
Petitioner :- Sumit And 14 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Siddharth Khare,Ashok Khare, Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
 

 
With
 

 
Case :- WRIT - A No. - 18571 of 2018
 

 
Petitioner :- Puneet Kumar And 103 Others
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Ramesh Kumar Shukla
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
 

 
With
 

 
Case :- WRIT - A No. - 18851 of 2018
 

 
Petitioner :- Vinod And 20 Others
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Som Veer
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav,Ram Bilas Yadav
 

 
With
 

 
Case :- WRIT - A No. - 19887 of 2018
 

 
Petitioner :- Smt. Poonam Devi And 25 Others
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Mohd. Arshad
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
 

 
With
 

 
Case :- WRIT - A No. - 20008 of 2018
 

 
Petitioner :- Neer And 14 Others
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Ramesh Kumar Shukla
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
 

 
With
 

 
Case :- WRIT - A No. - 20021 of 2018
 

 
Petitioner :- Ishwar Singh And 27 Others
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Ramesh Kumar Shukla
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
 

 

 
With
 

 
Case :- WRIT - A No. - 20024 of 2018
 

 
Petitioner :- Jyoti Sharma And 14 Others
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Ramesh Kumar Shukla
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
 

 

 
With
 

 
Case :- WRIT - A No. - 20334 of 2018
 

 
Petitioner :- Rashmi Sharma
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Satyendra Chandra Tripathi
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
 

 

 
With
 

 
Case :- WRIT - A No. - 21114 of 2018
 

 
Petitioner :- Shakuntala
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Som Veer
 
Counsel for Respondent :- C.S.C.,Ram Bilas Yadav
 

 
With
 

 
Case :- WRIT - A No. - 22640 of 2018
 

 
Petitioner :- Nitasha And 21 Others
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Ramesh Kumar Shukla
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
 

 

 
With
 

 
Case :- WRIT - A No. - 23219 of 2018
 

 
Petitioner :- Sunita Rao And 3 Others
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Mohd. Arshad
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
 

 
With
 

 
Case :- WRIT - A No. - 24453 of 2018
 

 
Petitioner :- Asha Kumari And 12 Others
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Ramesh Kumar Shukla
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
 

 

 
With
 

 
Case :- WRIT - A No. - 3263 of 2019
 

 
Petitioner :- Prem Prakash Dixit
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Ramesh Kumar Shukla
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
 

 
With
 

 
Case :- WRIT - A No. - 4715 of 2019
 

 
Petitioner :- Tamanna Kumari
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Ramesh Kumar Shukla
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
 

 
With
 

 
Case :- WRIT - A No. - 4717 of 2019
 

 
Petitioner :- Manish And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Raghwendra Prasad Mishra,A.N. Tripathi, Sr. Advocate,Arvind Kumar Mishra
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
 

 

 

 
Hon'ble Yashwant Varma, J.

Heard Sri Ashok Khare and Sri A.N. Tripathi, learned Senior Counsels in support of these petitions, Sri Ajeet Kumar Singh, the learned Additional Advocate General as well as Sri Ashok Kumar Yadav, learned counsels appearing for the respondents.

Article 16 (2) of the Constitution in unambiguous terms prohibits the State from either discriminating or rendering ineligible a citizen of the Union from employment or an office under the State only on the ground of religion, race, caste, sex, descent, place of birth, residence or any of them. Despite the Constitution expressly engrafting this prohibition, the State respondents appear to have placed a stipulation restricting a recruitment process for appointment of Assistant Teachers in Basic Schools only to those who have resided in the State of U.P. for a period of 5 years prior to the date of their application.

James Madison famously forewarned of constitutional guarantees being rendered mere "parchment barriers"1. It is to prevent such situations where basic guarantees are infringed and sapped of their spirit that a constitutional Court must remain forever vigilant ensuring that the basic threads which stitch together our Constitution are never violated or torn apart. On 30 November 1948, Sri Jaspat Roy Kapoor member of the Constituent Assembly from the United Provinces moving an amendment to Draft Article 10 [present Article 16 of our Constitution] which would shape the Article as it stands presently stated: -

Shri Jaspat Roy Kapoor (United Provinces : General) : Mr. Vice-President, Sir, I beg to move :

"That in clause (2) of article 10, after the word 'birth' the words 'or residence' be inserted."

Thereafter the clause will read as follows :--

"No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth or residence, or any of them, be ineligible for any office under the State."

Sir, the object of my amendment is that every citizen of the country, whereever he might be living, should have equal opportunity of employment under the State. Every citizen irrespective of his place of residence should be eligible for employment under the State anywhere in the country. Sir, there being only one citizenship for the whole country, it should carry with it the unfettered right and privilege of employment in any part and in every nook and corner of the country. A citizen residing in the province of Bengal, Madras, Bombay or C.P. should be eligible for employment in the U.P. and similarly a resident of the U.P. should have the right and privilege of employment in any other province of the country, provided of course he possesses the other necessary qualifications for the office.. Every citizen of the country, Sir, I think, must be made to feel that he is a citizen of the country as a whole and not of any particular province where he resides. He must feel that wheresoever he goes in the country, he shall have the same rights and privileges in the matter of employment as he has in the particular part of the country where he resides. Unfortunately, Sir, for some time past we have been observing that provincialism has been growing in this country. Every now and then we hear the cry. "Bengal for Bengalis", "Madras for Madrasis" and so on and so forth. This cry, Sir, is not in the interests of the unity of the country, or in the interests of the solidarity of the country. We find that some provincial governments have laid it down as a rule that for employment in the province the person concerned should have been living in the province for many years. One of the provinces, Sir, I am told, has laid it as a rule that they will employ only such persons as have resided within the province for fifty-two years. I do not know how far it is correct. Possibly there is some exaggeration in the report that has been conveyed to me but the fact remains that provincial governments are being pressed by the citizens of the province to lay down such rules in order to prevent residents of other provinces from seeking service under that provincial government. I can easily understand a provincial government laying it down as a rule that only those who possess adequate knowledge of the provincial language shall be eligible for employment in the province. I can also understand, Sir, a rule being laid down that a person who wants employment in the province should have adequate knowledge of local conditions.

Mr. Vice-President : I am hearing other honourable Members more than the Member who is occupying the rostrum.

Shri Jaspat Roy Kapoor : I was submitting, Sir, that I can easily understand provincial governments, in the interests of efficiency of the services, laying it down as a rule that only those who have adequate knowledge of the provincial language shall have employment in the province. I can also understand their laying down that persons seeking employment in the province must have adequate knowledge of the local conditions. All that is easily understandable in the interests of efficiency of the services, but to lay it down as a rule that one should have resided in the province for fifty-two years to become eligible for employment seems to me, Sir, to be simply absurd. If a man of fifty-two seeks employment, he can serve only for three more years. I submit, Sir, that this is a tendency which must be checked with a strong hand. I, therefore, submit-that in the matter of employment there should be absolutely no restriction whatsoever unless it is necessary in the interests of the efficiency of the services. The unity of the country must be preserved at all costs; the solidarity of the country must be preserved at all costs. We must do every thing in our power to preserve the unity of the country, and the amendment that I have moved aims at this and is a step in this direction; and I, therefore, commend it for the acceptance of the House."

Sri Alladi Krishnaswami Ayyar another renowned member of the Constituent Assembly while moving an amendment which now stands as Article 16 (3) of the Constitution spoke thus: -

"Shri Alladi Krishnaswami Ayyar (Madras : General) : The amendment which I have the honour to move runs in these terms :

That with reference to amendment No. 340. after clause (2) of article 10, the following new clause be inserted :--

"(2a) 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 any State for the time being specified in the First Schedule or any local or other authority within its territory, any requirement as to residence within that State prior to such employment or appointment."

The object of the amendment is clear from the terms and the wording of it. In the first part of the article, the general rule is laid down that there shall be equal opportunity for all citizens in matters of employment under the State and thereby the universality of Indian citizenship is postulated. In paragraph 2 of article 10, it is expressed in the negative, namely that no citizen shall be ineligible for any office under the State by reason of race, caste, sex descent, place of birth and so on. The next two clauses are in the nature of exceptions to the fundamental and the general rule that is laid down in the first part of the article. Now what the present amendment provides for is this that in case of appointments under the State for particular reasons, it may be necessary to provide that residence within the State is a necessary qualification for appointment by and within the State. That is the object of this amendment and in stead of leaving it to individual states to make any rule they like in regard to residence, it was felt that it would be much better if the Parliament lays down a general rule applicable to all states alike, especially having regard to the fact that in any matter concerning fundamental rights, it must be the parliament alone that has the power to legislate and not the different Units in India. Under these circumstances, I propose this amendment for the consideration of the House."

It is these core values and beliefs on which Article 16 arose and stood engrafted in our Constitution that must guide us to decide the issue raised in this batch of writ petitions.

This batch of writ petitions assail Clause (2) of the Guidelines dated 19 August 2018 as framed by the Secretary of U.P. Basic Education Board [hereinafter referred to as "the Board]. The Guidelines are challenged to the extent that they restrict the field of eligibility of candidates applying for appointment as Assistant Teachers in various basic schools of the State by providing that the applicant must necessarily be one who was continuously residing in the State of U.P. in the period of five years immediately preceding the date of application. Pursuant to the orders passed on the writ petition the respondents were called upon to furnish their replies. Although a Counter Affidavit has been filed in the leading writ petition on behalf of the third respondent, no Affidavit has been filed on behalf of the Secretary, Department of Basic Education. The stipulation and restriction which is impugned is assailed principally on the ground of being in violation of Article 16 of the Constitution. However, before dealing with the legal challenge which is raised it would be appropriate to briefly notice the following salient facts.

On 9 January 2018, the State Government addressed a communication to the Director of Education (Basic) and the Secretary of the Board to initiate a recruitment process for appointment of 68,500 Assistant Teachers in accordance with the provisions of the U.P. Basic Education (Teachers) Service Rules, 19812 as amended in 2017. Pursuant to the permission so accorded by the State Government, the Secretary of the State Examination Regulatory Authority issued an advertisement on 23 January 2018 calling for online registration of interested candidates. The online registration process was to commence on 25 January 2018 and conclude on 15 February 2018. All the petitioners in this batch registered online for being considered in the selection process so initiated by the respondents. In the first leg of the recruitment process a written examination was held on 27 May 2018 in which all the petitioners were declared successful. The results of the written examination were published on 13 August 2018.

The Board in its Counter Affidavit refers to a communication dated 10 August 2018 addressed to the Special Secretary in the Department of Basic Education in the State Government detailing the procedure which the Board intended to adopt in order to complete the recruitment exercise which stood initiated. After delineating the steps that the Board proposed to take in this regard, this communication sought the necessary advice and further direction of the State Government. The communication significantly in its introductory paragraph states that the procedure of recruitment detailed thereafter had been formulated as per the "intention" of the State Government. However, it is pertinent to mention here that no direction or communication of the State Government in which it may have detailed the procedure to be adopted or required the Board to introduce the impugned stipulation was either placed on the record or brought to the attention of this Court. This aspect assumes significance for the following reasons.

It is this communication of 10 August 2018 which for the first time prescribed the impugned restriction. The relevant clause of the communication which embodied the restriction that candidates should belong to the State of U.P. only, read thus:

"2- राष्ट्रीयता एवं निवास- ऐसे अभ्यर्थी आवेदन हेतु पात्र होंगे जो भारत के नागरिक हों तथा उत्तर प्रदेश में आवेदन की तिथि के पूर्व निरंतर 05 वर्ष से निवास कर रहे हों । अभ्यर्थी द्वारा निर्धारित प्रारूप पर सक्षम स्तर से निर्गत निवास प्रमाण पत्र चयन/ सत्यापन के समय चयन समिति के समक्ष प्रस्तुत किया जाना अनिवार्य होगा ।"

Reverting to the proceedings in the selection process, the petitioners upon being declared successful in the written examination were also permitted to participate in the counseling which was initiated thereafter by the respondents. From the second communication of the Board dated 16 August 2018 it comes to light that 41,556 candidates cleared the written examination. The petitioners were part of this batch of 41,556 candidates. The counseling as per the communication dated 16 August 2018 was to be held between 1 September 2018 to 3 September 2018. This communication detailed the processes to be followed by the respondents to conclude the selection process including the computation of quality point marks of each individual candidate. As per this communication the final select list was to be prepared upon conclusion of the counselling process and appointment letters issued on 5 September 2018.

On 18 August 2018, the Special Secretary in the Government of U.P. accorded approval to the procedure formulated and embodied in the communication of the Board dated 16 August 2018. Pursuant to the approval so granted the impugned Guidelines appear to have been framed, circulated and published on the website of the Board. The guidelines so published carried the restriction with respect to residence in terms identical to those extracted above and introduced for the first time by the communication of the Board dated 10 August 2018.

All the petitioners in this batch except for petitioner Nos. 8 and 10 in Writ -A No. 4714 of 2019 were permitted to participate in the counseling process and their district wise preferences also obtained. The Board around the time of commencement of counseling appears to have raised the issue of various candidates not residing in the State of U.P. being ineligible to participate in the selection process in terms of the Guidelines impugned. The petitioners here and various other candidates consequently instituted Writ -A No. 18571 of 20183. On this writ petition an interim order was passed by a learned Judge on 31 August 2018 in the following terms:

"3. ..... . As an interim measure, it is provided that if the petitioners are otherwise eligible, they shall be allowed to participate in the counselling. However, their result shall be subject to final outcome of this petition and it should be declared only with the leave of the Court."

Although the petitioners, as noted above, participated in the counseling, their appointment orders were not issued and the instant writ petitions consequently came to be instituted challenging the Guidelines dated 19 August 2018 and seeking a further direction for appointment orders being issued to the petitioners here.

The submissions on behalf of the petitioners have been led by Sri Ashok Khare and Sri A.N. Tripathi, learned Senior Counsels, who urged that the impugned restriction with respect to residence is violative of Article 16(2) of the Constitution which prohibits any citizen being discriminated against or being held to be ineligible for employment or an office under the State only on the ground of place of birth or residence. It was submitted that the State clearly lacked the legislative competence to introduce the restriction impugned since in terms of Article 16(3) it was Parliament alone which could make a law prescribing in regard to a class or classes of employment or appointment to offices under the State a requirement as to residence within that State or Union Territory prior to employment or appointment. Reliance was also placed upon the decision of the Supreme Court in Kailash Chand Sharma Vs. State of Rajasthan4, to contend that the impugned stipulation insofar as it renders non-residents of the State of U.P. ineligible to be considered for appointment was ex facie ultra vires Article 16(2) of the Constitution. It was also urged that the stipulation as introduced by the respondents was ultra vires the 1981 Rules itself since no such prohibition stood engrafted therein in terms of which only residents of the State of U.P. could be recognized as being eligible to be appointed as Assistant Teachers. The attention of the Court was drawn to Rule 7 of those Rules to submit that every citizen of India was entitled to apply and be considered for appointment as an Assistant Teacher in schools administered by the Board.

Sri Ajeet Kumar Singh, the learned Additional Advocate General as well as Sri A.K. Yadav, who appeared for the Board attempted to justify the impugned stipulation on the strength of Rule 19 (3) of the 1981 Rules and submitted that since this rule clearly mandated a selected candidate producing a residence certificate issued by a Tahsildar, it follows as a necessary corollary that a candidate must necessarily be a resident of the State of U.P. According to Sri Singh and Sri Yadav the clause which is impugned in the instant batch of writ petitions is referable to and saved by the provision of Rule 19 (3). Sri Singh, the learned Additional Advocate General has also placed reliance upon a decision rendered by a Division Bench of the Court in Pushpak Jyoti Vs. State of U.P. And Others5, to contend that a similar restriction as imposed was upheld by this Court. Sri Singh has also referred to a decision of the Constitution Bench of the Supreme Court in Saurabh Chaudhri And Others Vs. Union of India And Others6, to submit that reservation and a restriction which confines the field of eligibility to residents of a particular State is constitutionally permissible. It is these rival submissions, which fall for consideration.

Before proceeding further it would be appropriate to extract Rules 7 and 19 of the 1981 Rules, which have been referred to by learned counsels in support of the submissions noted above.

Rule 7 which speaks of nationality and sets forth the prescription of eligibility of a candidate for recruitment reads thus:

"7. Nationality- A candidate for recruitment to a post mentioned in Rule 5 must be-

(a) a citizen of India, or

(b) a Tibetan refugee who came over to India before January 1, 1962 with the intention of permanently settling in India, or

(c) a person of Indian origin who has migrated from Pakistan, Burma, Ceylon and East African countries of Kenya, Uganda and the United Republic of Tanzania (formerly Tanganyika and Zanzibar) with the Intention of permanently settling in India:

Provided that a candidate belonging to category (b) or (c) above must be a person in whose favour a certificate of eligibility has been issued by the State Government:

Provided further that a candidate belonging to category (b) will also be required to obtain a certificate of eligibility granted by the Deputy Inspector-General of Police, Intelligence Branch, Uttar Pradesh;

Provided also that if a candidate belongs to category (c), no certificate of eligibility will be issued for a period of more than one year and such candidate may be retained in service after a period of one year only if he has acquired Indian citizenship."

Rules 19 which deals with the procedure for appointment is in the following terms:

"[19. Appointment.-(1) The appointing authority shall make appointment to any post referred to in Rule 5 by taking the names of the candidates in the order in which they stand in the list prepared under Rule 17 or 17-A or 18, as the case may be.

(2) The appointing authority may make appointments in the temporary and officiating vacancies also from the lists referred to in sub-rule (1).

(3) No appointment shall be made except with the recommendation of the Selection Committee, and in the case of direct recruitment except on production of residence certificate issued by the Tahsildar.]"

Before dealing with the challenge to the impugned clause addressed on a constitutional plane and in light of Article 16(2), the Court is constrained to observe that the impugned stipulation never formed part of the original advertisement and notice inviting applications. Neither the Additional Advocate General nor Sri A.K. Yadav were able to draw the attention of the Court to any part of the advertisement or notice inviting applications which carried such a restriction. The clause admittedly came to be introduced for the first time in the 10 August 2018 communication of the Board and its consequential adoption and incorporation in the impugned Guidelines. By the time that this stipulation was introduced through the Guidelines, the selection process was already underway. All the petitioners had cleared the written examination whose results had been declared prior to its introduction. The respondents evidently chose to change the rules of the game after the recruitment process had commenced.

This Court is further of the considered view that the impugned clause cannot be sustained in light of the provisions of the 1981 Rules itself. Undisputedly the 1981 Rules make no provision restricting the field of eligibility of candidates only to those who may be residents of the State of U.P. In fact and to the contrary Rule 7 unambiguously prescribes that a candidate for recruitment to a post mentioned in Rule 5 thereof must be a citizen of India. It is thus manifest that all citizens of the Union irrespective of the State to which they may belong to or reside in are eligible to apply for appointment to posts prescribed under Rule 5. The impugned stipulation clearly restricts and in one sense reinvents the field of eligibility as statutorily prescribed by providing that a candidate must be one who has resided in the State of U.P. for a period of five years prior to application. This condition of eligibility which was introduced by the respondents does not find sanction under the 1981 Rules.

The submission made on the anvil of Rule 19(3) is also clearly misconceived. All that sub rule (3) prescribes is that a candidate who is selected for appointment must produce a residence certificate issued by a Tehsildar. Sub Rule (3) does not prescribe that the residence certificate must necessarily evidence the candidate being a resident of the State of U.P. The phrase ".... residence certificate issued by the Tehsildar" cannot possibly be read in aid or support of the impugned condition. A residence certificate can be issued by a Tehsildar of any of the States forming part of the Union. This Court, therefore, finds itself unable to either appreciate or countenance the submission as advanced by learned counsels for the respondents premised on this provision.

Additionally the Court notes that Rule 19 merely prescribes the procedure to be followed by the respondents while making an appointment upon culmination of the selection process. This rule neither deals with nor prescribes the eligibility criteria or makes any prescription in respect of residence or domicile. The essential eligibility conditions are prescribed by Rule 7. The educational qualifications are prescribed under Rule 8. The computation of quality point marks which determine inter se merit is controlled by Rule 14 (3) (a) and Appendix I. Rule 7 unambiguously entitles every citizen of India to apply for recruitment to a post mentioned in Rule 5. After completion of the selection process, successful candidates come to be included in the list prepared in terms of the provisions made in Rules 17, 17A and 18. Neither Rule 17 nor 17A or 18 place any restriction on the inclusion of the name of a successful candidate in the lists which are drawn up by providing that he or she must necessarily be a resident of the State of U.P. These rules also, at the cost of being repetitive, do not contain any negative stipulation ousting a candidate who is otherwise qualified on the ground that he is not a resident of the State of U.P.

Rule 19 (3) when it places the requirement of a selected candidate submitting a residence certificate must necessarily be read in light of Rule 7 since it is imperative for a selected candidate to establish that he or she is a citizen of India. It is to verify this aspect alone that the statute appears to place this requirement of submission of a residence certificate. It is also pertinent to note that Rule 7 also enables a Tibetan refugee who came over to India before 01 January 1962 with the intent of permanently settling in the Union or a person of Indian origin who had migrated from Pakistan, Burma, Ceylon or East African countries with the intent of permanently settling in India to be also eligible. This also is a clear indicator of the intent of the framers of the statute to expand the right to apply for appointment under the 1981 Rules to not only the citizens of India but also various others who may have come from outside the Union with the intent of permanently settling in India. It is thus evident and manifest that residence in a particular State or for that matter in the State of U.P. is not the determinative criteria for eligibility of candidates who seek employment as Assistant Teachers. Viewed in that light it is evident that the impugned clause in the Guidelines of 19 August 2018 is clearly ultra vires the 1981 Rules.

The impugned restriction is not only ultra vires the 1981 Rules but is also abhorrent to fundamental constitutional principles. Article 16(2) in unambiguous terms restrains the State from either discriminating or rendering a person ineligible for appointment or employment under the State only on the ground of residence or place of birth. The constitutional injunction which operates against the State in terms of Article 16(2) is absolute except to the extent that it stands diluted by Article 16(3). From a bare reading of clause (3) of Article 16, it is more than evident that Parliament alone is constitutionally enabled to make a law prescribing a residential requirement within a particular State in regard to a class of employment or appointment. It is thus evident that no individual State has the legislative competence to introduce or impose any such restriction. The intent of Article 16(2) is thus self-evident inasmuch as it is the unambiguous intention of the framers of the Constitution to make every office and employment under the State available to every citizen of the Union. It embodies the aim of the framers of the Constitution to open avenues of employment to all of its citizens irrespective of their residence or place of birth. The only power which stands conferred by the Constitution to impose a residential qualification stands vested exclusively in Parliament. It is in this light that the following observations as made in Kailash Chand Sharma assume significance :-

"13. 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 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. 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 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.

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".

15. 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. [(1969) 1 SCC 839 : (1970) 1 SCR 115] 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 ultra vires the Constitution. Pursuant to the enabling power conferred under Section 3 of the Public Employment (Requirement as to Residence) Act, Rules were made making a person ineligible for appointment to a post within Telengana area under the State Government of A.P. or to a post under a local authority in the said area unless he had 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 of posts reserved for domiciles of Telengana under the A.P. Public Employment (Requirement as to Residence) Rules. Such incumbent of post was to be employed in 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:

"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 or State Governments."

The argument that a sweeping power was given to Parliament to make any law as regards residential requirement was repelled thus:

"By the first clause equality of opportunity in employment or appointment to an office is guaranteed. By the second clause, there can be no discrimination, among other things, on the ground of residence. Realising, however, that sometimes local sentiments may have to be respected or sometimes an inroad from more advanced States into less developed States may have to be prevented, and a residential qualification may, therefore, have to be prescribed, the exception in clause (3) was made. Even so that clause spoke of residence within the State. The claim of Mr Setalvad that Parliament can make a provision regarding residence in any particular part of a State would render the general prohibition lose all its meaning. The words ''any requirement' cannot be read to warrant something which could have been said more specifically. These words bear upon the kind of residence or its duration rather than its location within the State. We accept the argument of Mr Gupte that the Constitution, as it stands, speaks of a whole State as the venue for residential qualification and it is impossible to think that the Constituent Assembly was thinking of residence in districts, taluqas, cities, towns or villages. The fact that this clause is an exception and came as an amendment must dictate that a narrow construction upon the exception should be placed as indeed the debates in the Constituent Assembly also seem to indicate."

Thus, this Court was not inclined to place too wide an interpretation on Article 16(3), keeping broadly in view the constitutional philosophy."

It would also be pertinent to note here that Sri Ajit Kumar Singh learned Additional Advocate General made a feeble attempt to support the impugned clause by referring to certain decisions rendered by the Supreme Court in the context of Article 15 of the Constitution. However in all fairness to the learned Additional Advocate General upon the Court pointing out the intrinsic and significant distinction between the two Articles, the argument was not pressed as such. However since that issue was raised, the Court deems it apposite to recollect the succinct opinion as penned by P.N. Bhagwati, J. in Pradeep Jain v. Union of India7 which is even today recognised as the classic exposition on the distinction which under lies Article 15 and 16 of the Constitution:

"5. We may point out at this stage that though Article 15(2) bars discrimination on grounds not only of religion, race, caste or sex but also a place of birth, Article 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 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 Article 16(3) provides an exception to this rule by 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 within, a State or Union Territory, any requirement as to residence within that State or Union Territory prior to such employment or appointment'. Parliament alone 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, without 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 exercised little control over these policies formulated by the States. The only action which Parliament has taken under Article 16(3) giving it the right to set residence requirements 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 Article 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 any 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 for consideration in these writ petitions and civil appeal."

"19. It will be noticed from the above discussion that though intra-State 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 case [Minor P. Rajendran v. State of Madras, AIR 1968 SC 1012] and Peeriakaruppan case [Minor A. Peeriakaruppan v. State of T.N., (1971) 1 SCC 38 : AIR 1971 SC 2303] , the Court has in D.N. Chanchala case [D.N. Chanchala v. State of Mysore, (1971) 2 SCC 293] 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 case [D.P. Joshi v. State of M.B., AIR 1955 SC 334] and N. Vasundara case [N. Vasundara v. State of Mysore, (1971) 2 SCC 22 : AIR 1971 SC 1439] 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 Article 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."

"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 equalize opportunities for medical admission on a broader basis and to bring about real and not formal, actual and not merely legal, equality. The percentage of reservation made on this count may also include institutional reservation for students passing the PUC or pre-medical examination of the same university or clearing the qualifying examination from the school system of the educational hinterland of the medical colleges in the State...."

It is therefore, evident that residential requirements in respect of admissions to technical and medical colleges are constitutionally permitted in light of the language employed by Articles 15(1) and 15(4) and the special conditions which were noticed in these decisions. Regard must also be had to the fact that the decisions of the Supreme Court dealing with residence requirement or institutional reservation rendered in the context of admissions to professional colleges and institutions must therefore be understood as having been rendered in light of Article 15 alone and where the Supreme Court found that the residence requirements satisfied the tests of a social and educational backward class of citizens. The decisions rendered in the context of Article 15 can have no application nor can they be read in the manner suggested by the learned Additional Advocate General. In any view of the matter, the decisions rendered in the backdrop of Article 15(4) do not dilute the constitutional fiat as comprised in Article 16(2). It is for the aforesaid reason that the Court finds itself unable to recognise the decision in Saurabh Chaudhri as coming to the aid of the respondents. Pushpak Jyoti did not deal with the issue which arises for consideration at all. It was merely concerned with certain orders passed by the State Government and the Union for allocation of cadre upon creation of the State of Uttarakhand under the U.P. Re-organisation Act, 2000.

Viewed in that backdrop, it is evident that the impugned clause is ultra vires Article 16(2) and constitutionally invalid. The clause is even otherwise beyond the legislative competence of the State since as noted above the power to introduce a residence requirement in respect of appointment or employment under the State stands conferred exclusively on Parliament.

On an overall consideration of the aforesaid, this Court comes to the irresistible conclusion that Clause 2 of the Guidelines dated 19 August 2018 is not only ultra vires the 1981 Rules, it is wholly unconstitutional and in violation of Article 16 (2). All the petitioners here are thus entitled to be considered for appointment as Assistant Teachers in accordance with the provisions of the 1981 Rules.

While proceedings to dispose of this batch of writ petitions, this Court additionally notes that all the petitioners in this batch of writ petitions except petitioner Nos. 8 and 10 in Writ-A No. 4714 of 2019 were permitted to participate in the counseling process. They had also been permitted to submit their district wise preferences. The Court is further informed and apprised that although initially 68500 posts were advertised, only 41556 candidates qualified the Assistant Teacher Recruitment Examination[ the written examination]. Evidently therefore, 27000 vacancies covered under the original advertisement continue to exist. These facts which are averred in paragraph-32 of Writ-A No. 4714 of 2019 are neither denied in the counter affidavit filed on behalf of the respondents nor were these facts disputed either by the learned Additional Advocate General or Sri Yadav who appears for the Board. No other legal impediment to fill up the remaining vacancies was also pointed out or stated by the respondents.

In view thereof, this Court is of the considered view that the respondents must be commanded to fill up the vacant posts by permitting all those candidates who were not residents of the State of U.P. and who had qualified the written examination for further consideration for appointment as Assistant Teachers. The Court is conscious of the fact that relief in these situations cannot be restricted to or based upon litigative persistence alone. Consequently the Board must be commanded to invite not just the petitioners here but also all other candidates who were ultimately excluded from the recruitment process only on the ground that they were not residents of the State of U.P.

The writ petitions consequently stand allowed. Clause 2 of the Guidelines dated 19 August 2018 is declared ultra vires the 1981 Rules and unconstitutional. All applicants who had cleared the written examination conducted by the respondents and were ultimately excluded only on the ground of being non-residents of the State of U.P. are therefore, held to be eligible to be considered by the respondents for appointment in accordance with the provisions of the 1981 Rules.

The Board is hereby commanded to publish notices in leading newspapers having wide circulation in different States inviting all applicants who were non-suited on account of the impugned clause to participate in the further steps which the respondents shall now undertake. Apart from public notices being carried in the leading newspapers, the Board shall also upload notices to similar effect on its official website. The State Examination Regulatory Authority may also take similar steps of uploading notices on its website.

In case any of the non-suited applicants were not permitted to participate in the counseling process initially undertaken, it shall be incumbent upon the Board to initiate a fresh counseling exercise in which such applicants shall be permitted to participate. The Board shall thereafter draw up a merit list of all excluded candidates who may choose to apply pursuant to the notices to be issued by the Board. The Board shall proceed further in accordance with the provisions of the 1981 Rules and process the claims of the petitioners and other similarly situate non-suited applicants who may respond pursuant to the public notice which shall be issued in accordance with law.

Order Date :- 8.5.2019

Arun K. Singh/faraz

(Yashwant Varma, J.)