JUDGMENT 1. - Petitioner is a resident of Kumher district Bharatpur. He passed Secondary School Examination in the year 1984 from the Board of Secondary Education, Rajasthan, Ajmer. He passed Higher Secondary examination from the same Board in the year 1986. He, thereafter, passed Physical Education Examination in the year 1987 from Physical Education School, Suroth. He is registered with the Employment Exchange, Dholpur. Petitioner has placed on record Exs. 1 to 4 in support of his residence, qualifications and registration with the Employment Exchange. 2. In pursuance of the advertisement issued by the District Education Officer (Elementary Education) Dholpur on 12.5.92, Petitioner submitted his application for selection and appointment as Physical Education Teacher. This application of the petitioner has been rejected by the District Education Officer (Elementary Education), Dholpur vide his communication dated, 19.9.92 only on the ground that the petitioner is not a resident of district Dholpur. 3. Petitioner has asserted that condition No. 11 contained in the advertisement (Ex. 5) is wholly arbitrary, irrational and unconstitutional. His case is that the District Education Officer (Elementary Education), Dholpur was not entitled to restrict the choice of candidates only to those who could produce certificate of bonafide residence of district Dholpur. Petitioner has placed on record advertisements issued by the District Education Officer (Elementary Education) Jaipur and District Education Officer (Elementary Education), Ajmer as also advertisements issued by the District Education Officer (Boys Institutions) Dholpur and District Education Officer (Girls Institutions) Dholpur (Exs. 7 to 10) and has pointed out that in none of these advertisements by which recruitment was made to the posts of Physical Education Teacher Gr. III such condition of eligibility has been incorporated. 4. Petitioner has prayed that the action of the District Education Officer (Elementary Education) Dholpur be declared ultra vires to the provisions of the Constitution and be quashed and the District Education Officer (Elementary Education), Dholpur be directed to consider his candidature for selection and appointment as Physical Education Teacher Gr. III. 5. Respondents have in their reply pleaded that the petitioner is not living in Dholpur district for the last 4 years. It has been asserted that condition of bonafide residence of Dholpur was incorporated in the advertisement (exhibit-6) and since the petitioner did not fulfill this condition his candidature has been rejected. According to the respondents this condition is not ultravires to the provisions of the Constitution. It has been asserted that condition of bonafide residence of Dholpur was incorporated in the advertisement (exhibit-6) and since the petitioner did not fulfill this condition his candidature has been rejected. According to the respondents this condition is not ultravires to the provisions of the Constitution. Reply of the respondents is conspicuously silent about the advertisements issued by the District Education Officers (Elementary Education) of Jaipur and Ajmer as also by the District Education Officers (Boys Institutions) and (Girls Institutions) Dholpur for recruitment of Physical Education Teacher without incorporating any condition that the candidate must be a bonafide resident of a particular district. 6. The only argument advanced by the learned counsel for the petitioner is that condition No. 11 contained in the advertisement is patently unconstitutional and ultravires to the provisions of the Rajasthan Educational Subordinate Service Rules, 1971 and that rejection of the candidature of the petitioner on the ground that he is not a bonafide resident of district Dholpur is illegal and arbitrary and in my opinion argument of the learned counsel deserves acceptance. 7. Condition No. 11 incorporated in the advertisement in question reads as under : " vkosnd /kkSyiqj ftys dk ewy fuoklh gksuh pkfg,A blds leFkZu esa l{ke vf/kdkjh }kjk iznRr izek.k i= layxz gksuk pkfg,A ijUrq mnwZ v/;kid ds in gsrq /kkSyiqj ftys dk vk'kkFkhZ miyC/k u gksus dh fLFkfr esa vU; ftys ds vk'kkFkhZ ds vkosnu i=ksa ij fopkj fd;k tk ldsxkA " Recruitment to the post of Physical Education Teacher is regulated by the provision& contained in the Rajasthan Educational Subordinate Service Rules, 1971. Part-III of these rules deal with recruitment. Rule-6 of these rules specifies the methods of recruitment. Rule-7 provides for reservation of vacancies for the Scheduled Caste and Scheduled Tribes. Rule-8 provides for nationality. Rule-8A contains conditions of eligibility of persons who migrated from other countries to India. Rule-9 provides for year- wise determination of vacancies. Rule-10 contains lower upper age limit. Rule-11 pertains to academic and technical qualifications and experience. Rule-12 contains provision for verification of the character of the candidate. Rule-13 deals with physical fitness. Rules 14 and 15 contain provisions which disentitle a candidate from selection. Part-IV of the rules contains procedure for direct recruitment. Part-V contains procedure for recruitment by promotion. Part-VI deals with appointments,probation and confirmation and Part-WI contains provision regarding pay, increments, leave pension etc. Rule-12 contains provision for verification of the character of the candidate. Rule-13 deals with physical fitness. Rules 14 and 15 contain provisions which disentitle a candidate from selection. Part-IV of the rules contains procedure for direct recruitment. Part-V contains procedure for recruitment by promotion. Part-VI deals with appointments,probation and confirmation and Part-WI contains provision regarding pay, increments, leave pension etc. Rule-8 which deals with nationality reads as under:- "8. Nationality A candidate for appointment to the service must be : (a) a citizen of India, or (b) a subject of Nepal, or (c) a subject of Bhutan, or (d) a Tibetan refugee who came over to India before the 1st January, 1962 with the intention of permanently settling in India, or (e) a person 1 Indian origin who has migrated from Pakistan, Burma, Shri Lanka and East African Countries of Kenya Uganda and the United Republic of Tanzania (formerly Tanganyka and Zanzibar) (Zambia, Malawi, Zaire and Ethiopia) (and Vietnam) with the intention of permanently settling in India. Provided that a candidate belonging to categories (b), (c), (d) and (e) shall be a person is whose favour a certificate of eligibility has been issued by the Government of India. A candidate in whose case a certificate of eligibility is necessary, may be admitted to an examination or interview conducted by the Commission or other recruiting authority and he may also provisionally be appointed subject to the necessary certificate being given to him by the Government." 8. A bare look at the provisions of the rules referred to here in above, shows that no requirement of residence of a particular State is a condition for selection and appointment to a subordinate service post in the Education Department. This is also the position under various other service rules. The District Education Officer (Elementary Education) has acted in total disregard of the rules when he incorporated condition of bonafide residence of a district as a condition of eligibility for the purpose of recruitment on the post of Physical Education Teacher. By his administrative action he has superimposed a condition of eligibility which is beyond the ambit of the statutory rules under which he was making recruitment. It is, therefore, held that the condition No. 11 contained in the advertisement is ultra-vires to the Rules of 1971. 9. The matter deserves to be looked into from another angle. By his administrative action he has superimposed a condition of eligibility which is beyond the ambit of the statutory rules under which he was making recruitment. It is, therefore, held that the condition No. 11 contained in the advertisement is ultra-vires to the Rules of 1971. 9. The matter deserves to be looked into from another angle. Article-14 of the Constitution says that the State shall not deny to any person equality before law or equal protection of the laws within the territory of India. Article 15 prohibits discrimination on the ground of religion, race, caste, sex or place of birth. Article 16 also provides for equality of opportunity in the matters of public employment and imposes a prohibition against the discrimination amongst the citizens on the ground of only religion, race, caste, sex, descent, place of birth, residence or any of them. Articles 14, 15 and 16 also deserve to be quoted for the purpose of proper appreciation of the argument of the learned counsel for the petitioner. "14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws with the territory of India." "15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (1) The State shall not discriminate against any citizen on grounds only of religion race, caste, sex, place of birth or any of them. (2) No citizen shall, on grounds only of religion race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and place of public resort -maintained wholly or partly out of State funds or dedicated to the use of the general public. (3) Nothing in this article shall prevent the State from making any special provision for women and children. (4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Caste and the Scheduled Tribes. "16. (4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Caste and the Scheduled Tribes. "16. Equality of opportunity in matters of public employment: (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office (under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory) prior to such employment or appointment. (4) Nothing is this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, in not adequately represented in the services under the State. (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination." 10. When the constitutional provisions impose negative injunction against discrimination on the ground of residence, State and its functionaries, how so high they may be, are bound to give effect to the constitutional injunctions. What the District Education Officer has done in the present case is clear negation of this constitutional injunction. The District Education Officer has incorporated a condition of eligibility which strikes at the very root of one of the fundamental principles incorporated in the Constitution against discrimination. By placing a condition of bonafide residence of district Dholpur the District Education Officer has imposed an unconstitutional condition of eligibility. Such condition if sustained in law would lead to grave consequences. The selection authorities would device different modes to avoid the constitutional provisions. By placing a condition of bonafide residence of district Dholpur the District Education Officer has imposed an unconstitutional condition of eligibility. Such condition if sustained in law would lead to grave consequences. The selection authorities would device different modes to avoid the constitutional provisions. This may end up in the subversion of the constitution. They very integrity of the nation will then be at stake. 11. In Charles K. Sakaria v. C. Mathew, AIR 1980 S.C. 1230 their Lordships of the Supreme Court examined the provisions of Articles 14 and 15 in the matter of admission to Medical Colleges and held that imposition of a condition that a candidate must be graduate from any University in Kerala was unconstitutional. The Supreme Court made some observations which are extremely apt for the case like one in hand. Their Lordships observed : "To conclude, we hold that the 2% open seats for the candidates from all the Universities of India outside Kerala runs counter to the Constitutional directive of equal opportunity and the preambular emphasis on national integrity and the State will do well to fashion a formula in terms of the guidelines given in Dr. Jagadish Saran's case, AIR 1980 S.C. 820 . After all, lines of poetry may drive home rules of constitutionality vigorously : "Pity the nation Divided into fragments Each fragment deeming itself a nation." 12. On the basis of the above discussion, this writ petition is allowed. Condition No. 11 contained in the advertisement (Ex 5) is declared unconstitutional and ultra-vires to the provisions of the Rajasthan Educational Subordinate Service Rules, 1971 and is struck down. Rejection of the candidature of the petitioner for appointment on the post of Physical Education Teacher is also declared illegal. Exhibit-6 dated, 19.9.92 is therefore, quashed. District Education Officer (Elementary Education) Dholpur is directed to consider the candidature of the petitioner on merit for the purpose of appointment as Physical Education Teacher. If the petitioner is found to be meritorious, he should be appointed as Physical Education Teacher from the date any other person less meritorious than him was appointed in pursuance of advertisement dated 12.5.92 (Ex. 5). The petitioner shall be given benefit of seniority according to his merit. However, for the purpose of pay, benefit of notional fixation shall only be given to him till the date of this order. 5). The petitioner shall be given benefit of seniority according to his merit. However, for the purpose of pay, benefit of notional fixation shall only be given to him till the date of this order. The petitioner shall be entitled to the benefit of actual salary from the date of issue of order of appointment. The District Education Officer (Elementary Education) Dholpur is directed to pass necessary orders within one month of the submission of certified copy of this order. 13. Before parting with the case, I would like to observe that in a number of other writ petitions this Court has come across similar unconstitutional and illegal conditions incorporated in various advertisements issued by different authorities of the Education Department for the purpose of recruitment of Teachers. It is therefore, necessary that the Director, Primary and Secondary Education should issue specific written instructions to various authorities of the Education Department not to incorporate such conditions in future advertisements and they should be directed not to act upon such conditions if the same have been incorporated in other advertisements. This direction is necessary in order to avoid similar type of litigation in the courts in futureWrit Petition Allowed. *******