Research › Search › Judgment

Punjab High Court · body

2011 DIGILAW 1330 (PNJ)

Abhishek Rishi v. State Of Punjab

2011-06-10

AUGUSTINE GEORGE MASIH, KANWALJIT SINGH AHLUWALIA

body2011
Judgment 1. This petition challenges the vires of the Punjab Panchayati Raj Primary Teachers (Recruitment & Conditions of Service) Rules, 2006 along with the amendment in the Rules issued vide Notification dated 18th April, 2011 in pursuance of which the advertisement (Annexure P-7) dated 26th April, 2011 has been issued. We have gone through the pleadings made in the writ petition, contents of Punjab Panchayati Raj Primary Teachers (Recruitment & Conditions of Service) Rules, 2006 as amended in 2011 (Annexures P-4 and P-5) (hereinafter referred to as, the Rules). 2. We have also perused the advertisement (Annexure P-7). We are prima facie of the view that the Rules and the advertisement offend the constitutional scheme and principles of equality which have been guarded by the Courts with zeal and in right earnest. 3. Before we notice the salient features of the Rules and advertisement, which according to us cannot stand judicial scrutiny, it will be necessary for us to give brief facts and our reasons as to why the Rules and the advertisement cannot sustain in the eyes of law. This, in our view, will be necessary to justify the order which we propose to pass. 4. Normally, issuance of notice of motion and grant of stay of further proceedings would have served the purpose. This court cannot ignore that in the present day, a lot of noise is raised that in the matters of private employment to give opportunity to the sons of the soil all migrant workers should return to their native land. Can this be done by the State in the matter of "PUBLIC EMPLOYMENT"? We are not only perturbed but aghast at the way in which the Government proposes to make selection of 7041 teachers in the primary schools of rural s of Punjab. Therefore, even though this petition lacks the necessary pleadings, we have taken suo-motu notice of certain features and the mode of selection which according to us run counter to our well nurtured constitutional ethos and thus, they must be nipped in the bud at the earliest. 5. Briefly stated, the Government of Punjab vide Notification No. 7/14/2004- 05/Education.4/467 dated 3rd March, 2006 transferred the management of 3449 Government primary schools and 232 Government primary schools from Punjab Education Department to the Department of Rural Development and Panchayat, Punjab and the Department of Local Bodies respectively for management and running the schools. 5. Briefly stated, the Government of Punjab vide Notification No. 7/14/2004- 05/Education.4/467 dated 3rd March, 2006 transferred the management of 3449 Government primary schools and 232 Government primary schools from Punjab Education Department to the Department of Rural Development and Panchayat, Punjab and the Department of Local Bodies respectively for management and running the schools. For recruitment of teachers, a Selection Committee at the level of every Zila Parishad has been constituted, which has been named as Zila Parishad Selection Committee. The constitution of the Selection Committee is as under: (i) Chairman, Zila Parishad concerned; Chairperson (ii) Chief Executive Officer, Zila Parishad concerned; Member-Secretary (iii) District Education Officer (Primary); Member (iv) One member, to be nominated by the Department of Welfare of Scheduled Castes and Backward Classes; Member (v) One member, to be nominated by the Department of Sainik Welfare; and Member (vi) One member, to be nominated by the Department of Sports. Member The amended Rule 10 of the Rules reads as under: "10. Qualifications. - (1) No person shall be appointed to the Service, unless, he - (a) has passed Junior Basic Teachers Training Course or Elementary Teachers Training Course, as the case may be, of two years duration, from the State of Punjab or from any other State or the Union Territory, as the case may be, declared equivalent and duly recognized by the Punjab Government; (b) has passed Punjabi as a teaching subject in the said courses; (c) has passed Matriculation Examination with Mathematics, Science, English and Punjabi; and (d) is a domicile of the State of Punjab or the Union Territory of Chandigarh. (2) In case of non-availability of persons, who have passed the Junior Basic Teachers Training Course or Elementary Teachers Training Course, as the case may be, the persons, who possess B.Ed, degree from a recognized university or institution, will be considered for appointment to the Service. However, such persons shall have to undergo orientation training of six months duration within a period of five years from the date of joining the Service from the District Institute of Education and Training, Punjab." 6. Rule 11 envisages the method for making appointments and transfers. We will extract the following portion of the Rule, which according to us is necessary to be noticed : 7. "11. Rule 11 envisages the method for making appointments and transfers. We will extract the following portion of the Rule, which according to us is necessary to be noticed : 7. "11. Method for making appointments and transfers.- (1) Appointment to the Service, shall be made from amongst the eligible persons, in the following manner, namely :- (a) Seventy percent of the posts shall be filled up from amongst the persons, who have obtained the educational qualifications as specified in rule 10, from the institutions situated within the State of Punjab; and (b) Thirty percent of the posts shall be filled up from amongst the persons, who have obtained the educational qualifications as specified in rule 10. from the institutions situated outside the State of Punjab. xxxx xxxx xxxx xxxx xxxx xxxx (2) The merit will be prepared by adding the percentage of marks obtained in 10+2 Examination or its equivalent and the percentage of marks obtained in the Junior Basic Teachers Training Course or Elementary Teachers Training Course, as the case may be. The persons, who have passed the said courses in the previous years but could not get employment in Government Service, will be given weightage of one mark for each completed year subject to maximum of ten marks. The above said period shall be counted from the date of issuance of the relevant diploma certificate till the date of last date of submission of application for appointment under these rules. (3) The persons, who have passed Middle and Matriculation examination from the schools situated in rural s in the State of Punjab, shall be given extra five marks. xxxx xxxx xxxx xxxx xxxx xxxx (3) (iii) passed diploma in 2002 and obtained diploma certificate on May 5, 2002. The last date of submission of the application for the advertised post is May 5, 2011. The relevant period after passing of J.B,T. or E.T.T., thus is 9 years; and.. 09 (iv) passed Middle and Matriculation from the schools situated in rural s of Punjab, if applicable." .. 05 8. The advertisement (Annexure P-7) also specifically states that the candidate who can be selected should be a domicile of the State of Punjab or Union Territory Chandigarh. In consonance with the Rules, the relevant portion of the advertisement (Annexure P-7) is also reproduced below : "2. 05 8. The advertisement (Annexure P-7) also specifically states that the candidate who can be selected should be a domicile of the State of Punjab or Union Territory Chandigarh. In consonance with the Rules, the relevant portion of the advertisement (Annexure P-7) is also reproduced below : "2. Recruitment Process : (A) 70% of the posts will be filled up from amongst those candidates who have passed Junior Basic Teachers Training or Elementary Teachers Training course from the State of Punjab. (B) 30% posts will be filled up from amongst those candidates who have passed Junior Basic Teachers Training or Elementary Teachers Training course from the State other than Punjab or Union Territory. xxxx xxxx xxxx xxxx xxxx xxxx (C) The merit will-be prepared by adding marks obtained in 10+2 or its equivalent examination and the marks obtained in E.T.T.; and (i) Those candidates who had passed the E.T.T. course more than one year back, will be given one additional mark for each year, subject to giving maximum 10 marks: and (ii) The merit of those who have passed Middle and Matriculation examination from the schools situated in the rural s of Punjab, will be prepared by awarding 5 additional marks to them." 9. To sum-up, the following salient features of the Rules and the advertisement, in our view, cannot stand judicial scrutiny: 1. That the applicant/selectee should be a domicile of the State of Punjab or Union Territory, Chandigarh; 2. That 70 percent of the posts be filled up from amongst those candidates who have passed Junior Basic Teachers Training (JBT) or Elementary TeachersTraining (ETT) course from the State of Punjab. 3. The merit of those candidates who have passed Middle and Matriculation examination from the schools situated in the rural s of Punjab will be prepared by awarding five additional marks to them. 4. That those candidates who have passed ETT course more than one year back will be given one additional mark for each year, subject to giving maximum ten marks. 5. That the recruitment of the candidates will be made district- wise. 10. It is time to divulge our reasons as to why the five salient features noticed by us above are bad in the eyes of law. 11. 5. That the recruitment of the candidates will be made district- wise. 10. It is time to divulge our reasons as to why the five salient features noticed by us above are bad in the eyes of law. 11. First, a perusal of the amended Rule 10 as well as the advertisement reveals that no person shall be appointed to the Service until and unless he is a domicile of the State of Punjab or the Union Territory of Chandigarh. In our view, such a qualification would run contrary to the mandate of Article 16 of the Constitution which provides equality of opportunity in matters of public employment. Such a qualification would run contrary to Article 16(2) of the Constitution which categorically states that no person shall be ineligible or discriminated for any employment under the State on ground of place of birth or residence. No doubt, Article 16 (2) is qualified by Article 16 (3) which states that nothing would restrict the Parliament from making any law which prescribes for certain classes of employment/office any requirement as to residence within that State or Union Territory. It is to be noticed that in exercise of power under Article 16 (3) the Parliament has enacted Public Employment (Requirement as to Residence) Act, 1957 wherein special provisions have been made with respect to States of Himachal Pradesh, Manipur and others. However, no such provision has been made which permits State of Punjab to introduce a requirement of domicile in matters of public employment. Reliance can be placed on the constitution bench judgment of the Supreme Court in the case of A.V.S. Narsimhas Rao v. State ofA.P., AIR 1970 SC 422 wherein it has been held that the legislative power to create residential qualification for employment is exclusively conferred on Parliament. In absence of any law passed by the Parliament, such a condition is not only a flagrant violation of Article 16 (2) but is also an assault on the unity and integrity of the country. 12. Secondly, a perusal of the rule as well as the advertisement would reveal that seventy percent of the posts have to be filled up from amongst those candidates who have passed Junior Basic Teachers Training (JBT) or Elementary Teachers Training (ETT) course from the State of Punjab. 12. Secondly, a perusal of the rule as well as the advertisement would reveal that seventy percent of the posts have to be filled up from amongst those candidates who have passed Junior Basic Teachers Training (JBT) or Elementary Teachers Training (ETT) course from the State of Punjab. Thus, after making hundred percent reservation for the domiciles of Punjab and Chandigarh, a further seventy percent quota has been made for those candidates who have passed JBT or ETT course from State of Punjab. One cant fathom as to what purpose is achieved by this exercise. On what basis preference is being given to those persons who have done JBT or ETT course from State of Punjab over those who though domicile of Punjab have done their JBT or ETT course from outside the State of Punjab. Such a condition not only violates Article 16 (2) but also Article 14 of the Constitution. It would be apposite here to reproduce the dicta of Honble the Supreme Court in the case of Pradeep Jain v. Union of India, AIR 1984 SC 1420 wherein such parochial actions came under severe criticism. It was held as under: "But, unfortunately, we find that in the last few years, owing to the emergence of narrow parochial loyalties fostered by interested parties with a view to gaining advantage for themselves, a serious threat has developed to the unity and integrity of the nation and the very concept of India as a nation is in peril The threat is obtrusive at some places while at others it is still silent and is masquerading under the guise of apparently innocuous and rather attractive claptrap. The reason is that the Constitution came into operation, we took the spirit of nationhood for granted and paid little attention to nourish it, unmindful of the fact that it was a hardwon concept. We allowed sons of the soildemands to develop claiming special treatment on the basis of residence in the concemed State, because recognising and conceding such demands had a populist appeal. The result is that sons of the soil claims, though not altogether illegitimate if confined within reasonable bounds, are breaking as under the unity and integrity of the nation by fostering and strengthening narrow parochial loyalties based on language and residence within a State. The result is that sons of the soil claims, though not altogether illegitimate if confined within reasonable bounds, are breaking as under the unity and integrity of the nation by fostering and strengthening narrow parochial loyalties based on language and residence within a State. Today unfortunately, a citizen who has his permanent residence in a State entertains the feeling that he must have a preferential claim to be appointed to an office or post in the State or to be admitted to an educational institution within the State vis-a-vis a citizen who has his permanent residence in another State, because the latter is an outsider and must yield place to a citizen who is a permanent resident of the State, irrespective of merit. This, in our opinion, is a dangerous feeling which, if allowed to grow, indiscriminately: might one day breakup the country into fragments, though, as we shall presently point out, the principle of equality of opportunity for education and advancement itself, may justify, within reasonable limits, a preferential policy based on residence. " 13. In the said case, reservation on the basis of residence was allowed with respect to education institutions as in those cases Article 16 of the Constitution has no application. However with respect to requirement of residence in matters of public appointment, the following opinion was expressed : "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 sub- ordinate services. Yet, in the face of Article 16(2), some of the States are adopting sons of the soilpolicies prescribing reservation or preference based on domicile or residence requirement for employment or appointment to an office under the government of a State or arty 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" 14. 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" 14. Thirdly, a perusal of the rates would reveal that those candidates who have passed Middle and Matriculation examination from the schools situated in rural s of Punjab would be awarded five additional marks. This question has already been answered by the Supreme Court in the case of Kailash Chand Sharma v, State of Rajasthan, 2002(3) S.C.T. 938 : AIR 2002 SC 2877 and Full Bench of Rajasthan High Court in Deepak Kumar Surthar and another v. State of Rajasthan, 2000(2) SCT 171 in the negative. After considering the entire conspectus of law it was held by Honble the Supreme Court in Kailash Chands case (supra) as under : "The above discussion leads us to the conclusion that the award of bonus marks to the residents of the district and the residents of the rural s of the district amounts to impermissible discrimination. There is no rational basis for such preferential treatment on the material available before us. 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, namely, spread of education at primary level. The offending part of Circular has the effect of diluting merit, without in any way promoting the objective. The impugned circular dated 10.6.1998 in so far as the award of bonus marks is concerned, has been rightly declared to be illegal and unconstitutional by the High Court." 15. We are conscious that a Coordinate Bench after considering the judgment rendered in Kailash Chands case (supra) has upheld the grant of bonus marks to students of rural s in the case of Sudesh Rani v. State of Punjab, 2010(3) SCF 1. A perusal of the judgment would reveal that the grant of bonus marks was upheld on the basis of the study conducted by Punjabi University on which extensive reliance was placed. A perusal of the judgment would reveal that the grant of bonus marks was upheld on the basis of the study conducted by Punjabi University on which extensive reliance was placed. In Sudesh Ranis case (supra), a Division Bench of this Court noticed the following contention of the then Advocate General : "It was further submitted that due to terrorism in Punjab, rural s were the worse affected, as most of the terrorist activities had taken place in the rural s of the State of Punjab and rural education centres were the epicentre from where the terrorists exploited the youths for their motives. Those, who were affluent, had shifted their residence to the urban s. Others, who could not afford to do so, had no option but to stay back in the rural s. It was further stated that wards of those families and educational institutions suffered in all respects during that period. It was further stated that by granting weightage of 5 marks to the candidates from the rural s, who are definitely backward in all respects, an attempt has been made to give effect to the Directive Principles of State Policy as enshrined in the Constitution. Specific reliance has been placed upon Article 38(2) which provides for promotion of social order, it reads thus : The State shall, in particular, strive to minimize the inequalities in income, and endeavors to eliminate inequalities in status, facilities and opportunities, not only amongst the individuals, but also amongst the groups of people residing in different s or engaged in different vocations." 16. The Division Bench further noticed the law laid down in State of Maharashtra v. Raj Kumar, AIR 1982 SC 1301, which had rejected such a contention. The following portion of Raj Kumars case (supra) was given due consideration by the Division Bench in Sudesh Ranis case (supra): "......In such a situation there was absolutely no occasion for making an express provision for giving weightage which would virtually convert merit into demerit and demerit into merit and would be per se violative of Article 14 of the Constitution as being an, impermissible classification. The rule of weightage as applied in this case is manifestly unreasonable and wholly arbitrary and cannot be sustained.." xxxx xxxx xxxx xxxx xxxx xxxx "..........Here we are faced with a problem that a candidate by sheer chance of his appearing and passing the examination from rural gets an advantage over all others by arbitrary addition of ten per cent of marks which, as we have indicated above, has no reasonable nexus or connection with the object of getting the best candidates suitably adapted to rural life." 17. Sudesh Ranis case (supra) further noticed the observations made by Honble the Apex Court in V.N. Sunanda Reddy v. State of Andhra Pradesh, 1995(2) S.C.T. 579:1995(3) RSJ 35 as under : "This being a sufficient safeguard to test the ability of candidate the express provision for giving weightage would virtually convert merit into demerit and demerit into merit and would be per se violative of Article 14. In our view the situation in the present case is also similar. We respectfully concur with the views expressed by Fazal Ali, J." 18. The Division Bench in Sudesh Ranis case (supra) further observed as under: "21. While not disputing the position of law laid down by the Honble Supreme Court in the above decisions, Shri H.S. Mattewal, learned Advocate General of the State of Punjab has submitted that in paragraph 48 of the judgment of the Honble Supreme Court in Kailash Chand Sharmas case (supra), it was held that measures taken by the State on considerations of localism are not sanctioned by the constitutional mandate of equality." 19. Having noticed the entire case law in Sudesh Ranis case (supra), following conclusion was drawn : "30. In our view, once Kailash Chand Sharmas case has noted the earlier larger bench judgment of State of Maharashtra v. Raj Kumar (supra) which was followed by V.N. Sunanda Reddys case (supra), the latter judgment in Kailash Chand Sharmas case could not be said to be per incuriaum and this Court was bound by the law laid down in Kailash Chand Sharmas case which had applied the judgment in State of Maharashtra v. Raj Kumar case (supra)." 20. With all humility at our command, we are unable to subscribe to this conclusion and express our doubts. With all humility at our command, we are unable to subscribe to this conclusion and express our doubts. According to us, while arriving at the conclusion in para No.30 of the judgment in Sudesh Ranis case (supra), the following very pertinent observations made and the reasons given by Honble the Supreme Court in Kailash Chand Sharmas case (supra) escaped notice of the Division Bench : "The justifiability of the plea stemming from the premise that uplifting the rural people is an affirmative action to improve their lot can be tested from the concrete situation which confronts us in the present cases. We are here concerned with the selections to the posts of teachers of primary schools, the minimum qualification being SSC coupled with basic training course in teaching. Can the Court proceed on the assumption that the candidates residing in the town s with their education in the schools or colleges located in the towns or its peripheral s stand on a higher pedestal than the candidates who had studied in the rural schools or colleges ? Is the latter comparatively a disadvantaged and economically weaker segment compared to the former ? We do not think so. The aspirants for the teachers jobs, in primary schools - be they from rural or town do not generally belong to affluent class. Apparently they come from lower middle class or poor background. By and large, in the pursuit of education, they suffer and share the same handicaps as their fellow citizens in rural areas. It cannot be said that the applicants from non-rural s have access to best of the school and college which the well to do class may have. Further, without any data, it is not possible to presume that the schools and colleges located in the towns - small or big and their peripheral s 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." 21. We also have our serious reservations regarding the study conducted by the Punjabi University on which the entire edifice has been built in Sudesh Ranis case (supra) to uphold grant of five bonus marks to the candidates who have passed Middle and Matriculation examination from the schools situated in the rural s of Punjab. 22. We also have our serious reservations regarding the study conducted by the Punjabi University on which the entire edifice has been built in Sudesh Ranis case (supra) to uphold grant of five bonus marks to the candidates who have passed Middle and Matriculation examination from the schools situated in the rural s of Punjab. 22. Terrorism in the State of Punjab is now a history. Time has come to move on and make a new beginning. Furthermore, if the reasoning propounded in Sudesh Ranis case (supra) is upheld, it will make inroads into well settled legal position and thereby merit will be converted into demerit and the demerit into merit. 23. Fourthly, the rules provide that the candidates who have passed ETT course more then one year back will be given one additional mark for each year subject to a maximum of ten marks. (Premium over incompetence). In the Advertisement (Annexure P- 7), it is stated that those candidates who have passed ETT more than one year back will be granted one additional mark for each year. It is to be noted that one additional mark is not to be given for their experience. Say, if a candidate who has obtained his qualification nine years ago and has remained unemployed, as he could not be selected on the touchstone of merits, he is granted nine marks to steal march over those who are meritorious, we are unable to understand as to what object respondents intend to achieve. A brilliant person who is a fresh pass-out is being unnecessarily put to disadvantage. Furthermore, as per the reasoning given by a Division Bench in Ashok Kumar v. State of Haryana and others CWP No. 13045 of 2009 decided on 6th April, 2010, grant of such additional marks cannot be sustained. 24. Lastly (fifthly), as per Clause 7 of the advertisement (Annexure P-7) recruitment of the candidates is to be made districtwise. We can understand that after the selection is made, one is appointed to the cadre of district, but to appoint the candidates districtwise is also contrary to the constitutional scheme, especially in view of the observations made in Kailash Chand Sharmas case and Deepak Kumar Surthars case (supra). We can understand that after the selection is made, one is appointed to the cadre of district, but to appoint the candidates districtwise is also contrary to the constitutional scheme, especially in view of the observations made in Kailash Chand Sharmas case and Deepak Kumar Surthars case (supra). In Kailash Chand Sharmas case (supra), it was observed as under : "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 socioeconomic backwardness of the for the purpose of admissions to professional colleges, it has been suggested that residence within a district or rural s 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 in the State were nipped in the bud by this Court since long past. We would like to reiterate that residence by itself - be it be within a State, region, district or lesser 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." 26. Furthermore, distribution of seats in the admission to the educational institutions district-wise has not found favour in GovindA. Mane v. State of Maharashtra, 2000(2) S. C. T. 464; 2000 AIR (SC) 1576. Issue notice of motion for 13th July, 2011. 27. In our view, the disease is dangerous, the remedy has to be drastic. Prima facie, the entire advertisement (Annexure P-7) and the amended rules (Annexure P-5) run foul to the constitutional scheme. Mane v. State of Maharashtra, 2000(2) S. C. T. 464; 2000 AIR (SC) 1576. Issue notice of motion for 13th July, 2011. 27. In our view, the disease is dangerous, the remedy has to be drastic. Prima facie, the entire advertisement (Annexure P-7) and the amended rules (Annexure P-5) run foul to the constitutional scheme. Thus, we are constrained to restrain the respondents to take any further steps in furtherance of advertisement (Annexure P-7).