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CASE NO.:

Appeal (civil) 4417 of 2002

PETITIONER:

KAILASH CHAND SHARMA

Vs.

RESPONDENT:

STATE OF RAJASTHAN & ORS

DATE OF JUDGMENT: 30/07/2002

BENCH:

D.P. Mohapatra & P.Venkatarama Reddi.

JUDGMENT:

(Arising out of S.L.P. No. 1824 of 2000).

With

CA Nos.4418-21, 4423, 4427-4429, 4431, 4432, 4437, 4438-39, 4434, 4443,

4444, 4445, 4446-47, 4449, 4450, 4451, 4452, 4453, 4454, 4455, 4456,

4457, 4458-60, 4461, 4462, 4463, 4464, 4465, 4466, 4435, 4436/02 @

SLP Nos. 10778-81/2001, 10929, 14560-63/2001, 15579, 4979, 5017-18,

5021, 20286, 20297, 20296, 20293-94, 20298, 11496, 11642, 11619, 11618,

11614, 20300, 11789, 11620, 12011-13, 11879, 20289, 12289, 20290,

11359, 20292 of 2001 and SLP Nos.2297, 2503 of 2000 and W.P. No.

542/2000 and CA Nos.4440 & 4441-4442 @ SLP Nos. 23010, 23011-

12/2001.

P.Venkatarama Reddi, J.

Leave to appeal granted. Consequently, the appeals are taken on file

and being disposed of by this common Judgment.

The selections held and the consequential appointments made to the

posts of primary school teachers by the Zila Parishads of various districts in

the State of Rajasthan during the year 1998-1999 have given rise to these

appeals. The full Bench judgment of Rajasthan High Court dated

18.11.1999 in Kailash Chand Sharma (Petitioner in first of the appeals

corresponding to SLP No. 1824/2000) Vs. State of Rajasthan and

connected Writ Petitions are under challenge in these appeals apart from the

Division Bench Judgment in State of Rajasthan Vs. Naval Kishore Sharma.

The full Bench followed its earlier judgment in Deepak Kumar Suthar Vs.

State of Rajasthan (W.P. No. 1917/1995) and disposed of the Writ

Petitions on the same terms as in the previous full Bench reference case. At

the outset, it may be stated that the judgment of the full Bench rendered on

October 21, 1999 in Deepak Kumar's case (reported in 1999(2), RLR 692)

was in relation to the selection of teachers Grade II and Grade III which was

pursuant to the advertisement issued by the Director, Primary and Secondary

Education during the year 1995. The said posts of teachers Grade II and

Grade III are borne in State cadre under the administrative control of

Education Department of the State Government. The second full Bench

judgment, as already noted, was in the context of selections to the posts of

teachers district-wise coming within the fold of respective Zila Parishads. In

the impugned judgment the full Bench, however, did not see any

impediment in applying the ratio of the previous judgment. The full Bench

observed that "merely because the employment relates to the Panchayats,

that does not make any difference in the light of the law laid down in the full

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Bench judgment aforementioned". What was called in question by the

unsuccessful candidates who filed their applications and appeared before

the o.1 Selection Boards was the award of bonus marks to the applicants

belonging to the District and the rural areas of the district concerned. The

first full Bench (in the case of Deepak Kumar Vs. State) held that award of

such bonus marks was unconstitutional and the relevant clause in the circular

providing for bonus marks was void. The learned Judges observed that "this

kind of weightage would give a complete go-bye to the merit of the

candidates and would seriously affect the efficiency of

administration/teaching". The full Bench answered the reference holding

that "any kind of weightage/advantage in public employment in any State

service is not permissible on the ground of place of birth or residence or on

the ground of being a resident of urban area or rural area.". Having so

declared the law, the full Bench gave the following directions in the

concluding para of the judgment :

"Instead of sending the matter to the appropriate

bench, we think it proper to dispose of this petition

with a direction that no relief can be granted to the

petitioners as they could not succeed to get the

place in the merit list even by getting 10 bonus

marks being residents of urban area, for which

they are certainly not entitled. More so, the

petitioners have not impleaded any person from

the select list, not even the last selected candidate.

Thus, no relief can be granted to them inspite of

the fact that the appointments made in conformity

of the impugned Circular have not been in

consonance with law. However, we clarify that

any appointment made earlier shall not be affected

by this judgment and it would have prospective

application".

It is this decision that was followed by the full Bench in the impugned

judgment and the batch of Writ Petitions were disposed of accordingly.

Against this judgment SLPs were filed by the original writ petitioners (six in

number) as well as the State Government and the Zila Parishad.

After the full Bench judgment one more batch of writ petitions came

to be disposed of by a learned single Judge of the High Court on 26.2.2001

directing a fresh merit list to be prepared in respect of the candidates who

were not appointed on or before 21.10.1999 without regard to the bonus

marks. Appeals against this judgment were filed by the State Government

and other authorities. The Division Bench by its order dated 13.4.2001

dismissed those appeals. Questioning the same, SLPs were filed by the

State as well as certain affected parties who were granted leave to appeal.

Coming to the specific facts relevant to the present appeals, at the

threshold, we should make a reference to the circular issued by the

Department of Rural Development and Panchayat Raj bearing the date

10.6.1998, which deals with the subject of procedure to be followed for

appointment to the vacant posts of teachers during the years 1998-1999 by

way of direct recruitment. This circular was issued in supercession of

earlier orders on the subject. It is seen from the circular that 5847 posts

were sanctioned by the Finance Department of the Government and the

appointments were to be made to the vacancies for which sanction was

accorded. The Chief Executive Officers-cum-Secretaries of Zila Parishads

were required to issue the advertisements by 15.6.1998 and to have them

published in the newspapers by 20.6.1998. According to the schedule given

in the circular, the process of issuing appointment orders was to be

completed by 14.8.1998. That it did not actually happen is a different

matter. The circular which is quite comprehensive deals with various

aspects. We are only concerned with the following provisions in the circular

having a bearing on the determination of merit of the applicant/candidate. It

reads as follows :

"This year, determination of merit has been

amended and determination of merit will be done

as follows :-

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I. Marks for educational qualification :-

S.No. Qualification Weightage

1. Secondary Examination 50%

2. Senior Secondary Examination 20%

3. S.T.C./B.Ed. 30%

II. Fixation of Bonus marks for domiciles

Domiciles of Rajasthan - 10 marks

Resident of District - 10 marks

Resident of Rural area of Distt. - 5 marks

The other criteria evolved for award of marks under the head

'academic achievements', bonus marks for sports etc. need not be quoted.

More particularly, we are concerned with Para II (supra) i.e., bonus marks

for 'domiciles'. It may be mentioned that there is no dispute in so far as the

award of bonus marks to the 'domiciles' of the State of Rajasthan. The

controversy is only with regard to Items 2 and 3 i.e. 10 marks for residence

in the District concerned and 5 marks for residence in rural areas of the

concerned district. It may be noted that there was no written examination.

The interview was of a formal nature as there was no assessment of

comparative merit therein.

The above Circular is traceable to the power conferred on the State

Government under the proviso to Rule 273 occurring in Chapter XII of the

Rajasthan Panchayat Raj Rules 1996, according to which the selection for

various posts shall be made in accordance with the general directions given

by the State Government from time to time in this respect.

In order to give effect to the orders of the State Government the Zila

Parishads issued advertisements round about 15th June, 1998 calling for

applications. It is seen from the advertisement issued by the Zila Parishad,

Barmer, the following qualifications are mentioned therein:-

"1. Senior secondary under New (10+2) scheme from

Secondary Education Board, Rajasthan or Higher

secondary or equivalent under the old scheme or

secondary school certificate or equivalent from

secondary school Education Board Rajasthan with 5

subjects including Sanskrit, Maths, English and Hindi."

Some of the candidates hailing from different districts or towns who

were not eligible for bonus marks (10+5) filed the Writ Petitions under

Article 226 of the Constitution questioning the circular of the State

Government (Rural Development and Panchayat Raj Department)

prescribing the bonus marks as afore-mentioned and seeking appropriate

directions for their consideration without reference to bonus marks. This

was done after they appeared for formal interviews. By then, the select lists

were published in some Districts and in some other Districts, though they

were presumably prepared, further action was kept in abeyance for certain

reasons, including the pendency of the Writ Petitions. When the matter

came up for hearing before a learned single Judge, he felt that earlier

Division Bench decisions of the Court in Arvind Kumar Gochar and Baljeet

Kaur's case needed reconsideration. Accordingly, the learned single Judge

suggested to the learned Chief Justice to constitute full Bench. At the same

time, he stayed the final selection pursuant to various advertisements

involved in the writ petition for three months in the hope that in the

meanwhile the larger Bench will decide the issue. That is how the full

Bench was constituted. To recapitulate the sequence, it may be noted that

the first full Bench decision in Deepak Kumar's case relating to

appointments in the Education Department was decided on 21.10.1999. The

second full Bench dealing with the cases on hand gave its verdict on

18.11.1999. During the interregnum between the first full Bench judgment

and the second full Bench decision, it appears that appointment orders were

issued to the selected candidates in some of the districts. The process of

issuing appointment letters seems to have continued even after the second

full Bench judgment i.e. after 18.11.1999.

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In this factual background, the S.L.Ps came to be filed in this Court.

Those who have filed S.L.Ps fall under four categories:

(1) Those filed by the original writ petitioners who

were aggrieved by the direction in the judgment

either confining its application prospectively or

denying relief on the ground that writ petitioners

would not have been selected even if 10 or 15

bonus marks are excluded. The appellant in the

first of these appeals Kailash Chand Sharma

belongs to this category. He hails from the district

of Karouli and he applied for the job in Barmer

district.

(2) Those candidates who have not been offered

appointment, though selected on the strength of the

weightage accorded for residents of the district and

rural areas comprised therein.

(3) Those selected on the basis of weightage and

appointed after 21-10-99, whose appointments

were likely to be cancelled in view of the

directions in the impugned judgments.

(4) Official respondents in the Writ Petitions, viz.,

State of Rajasthan and Zila Parishads.

In categories 2 and 3 above, persons who were not parties in the High

Court have sought permission of this Court to file SLPs, which was granted.

The first and foremost question that would arise for consideration in

this group of appeals is, whether the circular dated 10.6.1998 providing for

bonus marks for residents of the concerned district and the rural areas within

that district is constitutionally valid tested on the touch stone of Article 16

read with Article 14 of the Constitution? It is on this aspect, learned senior

counsel appearing for the candidates concerned have argued at length with

admirable clarity, making copious reference to several pronouncements of

this Court.

There can be little doubt that the impugned circular is the product of

the policy decision taken by the State Government. Even then, as rightly

pointed out by the High Court, such decision has to pass the test of Articles

14 and 16 of the Constitution. If the policy decision, which in the present

case has the undoubted effect of deviating from the normal and salutary rule

of selection based on merit is subversive of the doctrine of equality, it cannot

sustain. It should be free from the vice of arbitrariness and conform to the

well-settled norms both positive and negative underlying Articles 14 and

16, which together with Article 15 form part of the Constitutional code of

equality.

In order to justify the preferential treatment accorded to residents of

the district and the rural areas of the district in the matter of selection to the

posts of teachers, the State has come forward with certain pleas either before

the High Court or before this Court. Some of these pleas are pressed into

service by the learned counsel appearing for the parties who are the possible

beneficiaries under the impugned order of the Govt. Such pleas taken by the

State Government and from which support is sought to be drawn by the

individual parties concerned will be referred to a little later.

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 Art. 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

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like to reiterate that residence by itself be it be 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.

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 dilutes the rigour of clause (2) by (i) conferring an enabling

power on the Parliament to make a law prescribing the residential

requirement within the State in 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) in so far as

public employment is concerned is prohibited; secondly, Parliament is

empowered to make the law prescribing residential requirement within a

State or Union Territory, as the case may be, in relation to a class or classes

of employment. That means, in the absence of parliamentary law, even the

prescription of requirement as to residence within 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'.

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

Vs. State of A.P. (1970 (1) SCR 115) declared that the law enacted by the

Parliament in pursuance of Clause (3) of Article 16 making a special

provision for domicile within the Telegana 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 the Telengana area under

the State Government of A.P. or to a post under a local authority in the said

area unless he has been continuously residing within the said area for a

period of not less than 15 years immediately preceding the prescribed date.

The Government issued an order relieving all 'non-domicile' persons

appointed on or after 1.11.1956 to certain categories 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 the

Andhra region by creating a supernumerary post, if necessary. This

legislative and executive action was struck down by this Court. After

referring to Article 16, the Court observed:

"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

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residence within the State or Union territory prior

to employment or appointment to an office in that

State or Union territory. Two questions arise here,

firstly, whether Parliament, while prescribing the

requirement, may prescribe the requirement of

residence in a particular part of the State and,

secondly, whether Parliament can delegate this

function by making a declaration and leaving the

details to be filled in by the rule making power of

the Central and State Governments."

The argument that a sweeping power was given to the Parliament to make

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 Art. 16(3), keeping broadly in view the constitutional philosophy.

In Pradeep Jain Vs. Union of India (AIR 1984 SC 1420) though the

Court was concerned with the question whether residential requirement or

institutional preference in admissions to technical and medical colleges can

be constitutionally permissible in the light of Article 15 (1) and 15 (4),

Bhagwati, J. speaking for the Court expressed his prima facie opinion thus

as regards residential requirement in the field of public employment:

" We may point out at this stage that though Art.

15(2) bars discrimination on grounds, not only of

religion, race, caste or sex but also on place of

birth, Art 16 (2) goes further and provides that no

citizen shall on grounds only of religion, race,

caste, sex, descent, place of birth, residence or any

of them be ineligible for or discriminated against

in State employment. So far as employment 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

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employment or appointment to an office under the

State . But, Art. 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 in, a State or Union Territory,

any requirement as to residence within that State or

Union territory prior to such employment or

appointment." Parliament alone 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 Art. 16(3) giving it the

right to set a residence requirement has been the

enactment of the Public Employment (requirement

as to Residence) Act, 1957 ..

There is therefore, at present no parliamentary

enactment permitting preferential policies based on

residence requirement except in the case of Andhra

Pradesh, Manipur, Tripura and Himachal Pradesh

where the Central government has been given the

right to issue directions setting residence

requirements in the subordinate services. Yet, in

the face of Art. 16(2) some of the States are

adopting 'sons of the soil' policies prescribing

reservation or preference based on domicile or

residence requirement for employment or

appointment to an office under the Government of

a State or 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."

However, in so far as admissions to educational institutions such as medical

colleges are concerned, it was pointed out that Article 16(2) has no

application and residential requirement cannot per se be condemned as

unconstitutional. It was observed that the only provision of the Constitution

on the touchstone of which such residence requirement can be tested is

Article 14. On a conspectus of earlier decisions of this Court, the learned

Judge summarised the position thus in so far as admissions to professional

education colleges are concerned: -

"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's case (AIR 1968 SC 1012) (supra) and

Perukaruppan's case (AIR 1971 Sc 2303) (supra),

the Court has in D. N. Chanchala's case 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's case (AIR

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1955 SC 334) and N. Vasundhara's case (AIR

1971 SC 1439) (supra) 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 Art. 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."

Bhagwati, J. underscored the need for evolving a policy of ensuring

admissions to the MBBS course on all India basis "based as it is on the

postulate that India is one nation and every citizen of India is entitled to have

equal opportunity for education and advancement." But, it was observed

that the realization of such ideal may not be realistically possible in the

present circumstances. It was then concluded:

"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 not necessary for us to refer in extenso to various other decisions of this

Court dealing with the scope of Article 15 (1) and 15 (4) vis a vis

reservations based on residence within a University or other local area for

the purpose of admissions to professional colleges. A summary of those

decisions has been given by Bhagwati, J. in the passage extracted (supra).

The requirement of residence and education within the university area for

allocation of seats in medical colleges affiliated to that university was upheld

on special considerations noticed in that judgment.

We may, however, advert to one recent decision wherein the view

taken in Rajendran's case (supra) was reiterated. In Govind A. Mane Vs.

State of Maharashtra, (2000 (4) SCC 200) it was laid down:

"Since it is not disputed by the respondents that for the

purpose of admission to B.Ed course, seats were distributed

districtwise without indicating any material to show the nexus

between such distribution and the object sought to be achieved,

it would be violative of Article 14 of the Constitution."

The lack of material to establish nexus between the geographical

classification and the object sought to be achieved thereby was thus held to

be violative of Article 14.

The question which fell for consideration of this Court whether the

action of the State in Pradip Tandon vs. State of U.P. (1975 (1) SCC 267)

was in reserving certain percentage of seats available in medical colleges in

favour of candidates from rural areas, hill areas and Uttarakhand was

justified? The reservation was sought to be justified from the stand point of

Article 15(4). Repelling the contention, Ray, C.J., speaking for a three-

Judge Bench observed that "the Constitution does not enable the State to

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bring socially and educationally backward areas within the protection of

Article 15(4)". It was pointed out that the accent in Article 15(4) is on

classes of citizens :

"The expression "classes of citizens" indicates a

homogeneous section of the people who are

grouped together because of certain likenesses and

common traits and who are identifiable by some

common attributes. The homogeneity of the class

of citizens is social and educational backwardness.

Neither caste nor religion nor place of birth will be

the uniform element of common attributes to make

them a class of citizens."

Eschewing the test of poverty as the determining factor of social

backwardness this Court made the following pertinent observations :

" A division between the population of our

country on the ground of poverty that the people in

the urban areas are not poor and that the people in

the rural areas are poor is neither supported by

facts nor by a division between the urban people

on the one hand and the rural people on the other

that the rural people are socially and educationally

backward class.

Some people in the rural areas may be

educationally backward, some may be socially

backward, there may be few who are both socially

and educationally backward, but it cannot be said

that all citizens residing in rural areas are socially

and educationally backward.

Eighty per cent of the population in the State

of Uttar Pradesh in rural areas cannot be said to be

a homogeneous class by itself. They are not of the

same kind. Their occupation is different. Their

standards are different. Their lives are different.

Population cannot be a class by itself. Rural

element does not make it a class. To suggest that

the rural areas are socially and educationally

backward is to have reservation for the majority of

the State."

It was further observed :

"The reservation for rural areas cannot be

sustained on the ground that the rural areas

represent socially and educationally backward

classes of citizens. This reservation appears to be

made for majority population of the State. Eighty

per cent of the population of the State cannot be a

homogeneous class. Poverty in rural areas cannot

be the basis of classification to support reservation

for rural areas."

It was then observed that "the present case of classification of rural areas is

not one of under-classification. This is a case of discrimination in favour of

the majority of rural population to the prejudice of the students drawn from

the general category".

However, the learned Judges took the view that the hill and

Uttarakhand areas in U.P. State are 'instances' of socially and educationally

backward classes of citizens and that those living in the hill and Uttarakhand

areas can be considered to be socially and educationally backward classes of

citizens. The social, economic and educational factors justifying such

conclusion were set out succinctly by the learned Judges. Ultimately the

reservation in favour of candidates from rural areas was declared

unconstitutional while upholding reservation for the candidates from hill and

Uttarakhand areas. The principle laid down in the above decisions, though

in the context of interpretation of Article 15(4) is an answer to the contention

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of the State that bonus marks are provided for uplifting the rural educated

persons so as to utilize their services for the upliftment of the fellow rural

people through the spread of education. Prohibition of discrimination on

the basis of place of residence in the context of public employment is an

additional factor which makes it well nigh impossible to accept the above

plea.

Before examining the further pleas in support of the impugned

action taken by the State it would be apposite to refer to the decision in State

of Maharashtra Vs. Raj Kumar (AIR 1982 SC 1301), on which reliance has

been placed by the High Court and reference has been made in the course of

arguments before us. In that case a rule was made by the State of

Maharashtra that a candidate in order to be treated as a rural candidate must

have passed SSC Examination which is held from a village or a town having

only 'C' type municipality. The object of the rule, as pointed out by this

Court, was to appoint candidates having full knowledge of rural life and its

problems so that they would be more suitable for working as officers in rural

areas. The rule was struck down on the ground that there was no nexus

between classification made and the object sought to be achieved because

"as the rule stands any person who may not have lived in a village at all can

appear for SSC examination from a village and yet become eligible for

selection". The rule was held to be violative of Articles 14 and 16. Another

point discussed by the Court was about the propriety of giving bonus marks

for the rural candidates and the Court held thus :

"The rules also provide that viva-voce Board would put

relevant questions to judge the suitability of candidate for

working in rural areas and to test whether or not they have

sufficient knowledge of rural problems, and this no doubt

amounts to a sufficient safeguard to ascertain the ability of

the candidate regarding his knowledge about the affairs of

the village. In such a situation there was absolutely no

occasion for making an express provision for giving

weightage which would virtually convert merit into demerit

and demerit into merit and would be per se violative of

Article 14 of the Constitution as being an impermissible

classification. The rule of weightage as applied in this case

is manifestly unreasonable and wholly arbitrary and cannot

be sustained."

This decision is not a direct authority for the proposition that a citizen

cannot be preferred for employment under the State on the ground that he or

she hails from rural area. However, what has been laid down in regard to the

first point assumes some relevance in the cases on hand. The criterion for

identifying a rural candidate was held to be irrelevant as it had no nexus with

the object sought to be achieved. In the present case, the position is much

worse as the impugned circular does not spell out any criteria or indicia to

determine whether an applicant is a rural candidate.

Realising the difficulty in sustaining the impugned circular of the

Government merely on the basis of classification between persons residing

in rural areas and towns, Mr. Rajeev Dhawan, learned Senior counsel as well

as the learned counsel appearing for the State, sought to draw support from

the plea taken by the State in the counter affidavit filed in SLP No.

10780/2001 that the award of bonus marks to the residents of rural areas is a

measure of affirmative action or compensatory discrimination to help the

disadvantaged sections, namely, the rural people. It is trite to say that India

lives in villages and inhabited predominantly by poorer sections of people.

The people in the rural areas suffer many handicaps especially in the sphere

of education. These factors, according to the learned counsel justify the

State action to throw up better employment opportunities to the rural citizens

and such act of levelling, it is contended, is nothing but an instance of

protective discrimination. According to the learned counsel, the State, in the

instant case, has resorted to least offensive and least obtrusive method of

protecting the interests of the rural citizens instead of going in for wholesale

reservation and it does not in any way violate the mandate of Art. 14 or

Art.16. The learned counsel reminds us that giving relaxations and

concessions to disadvantaged people are an integral part of the equality

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clause enshrined in Article 14.

This plea proceeds on the supposition that the proportion of

employment of rural residents is much less than that of the residents in the

towns; in other words, the major chunk of appointments in State services are

going to those born in and brought up in towns. The other assumption

underlying this argument is that the educated people in the rural areas are

economically weaker than those living in towns. None of these assumptions

are based upon any data or concrete material. We must say that the argument

built up on this plea falls more in the realm of platitudes rather than

affording a solid basis for the classification. In Nidamarti Maheshkumar Vs.

State of Maharashtra (1986 (2) SCC 534), when regionwise classification for

admissions to medical colleges was sought to be defended on the ground that

Vidharbha and Marathwada regions are backward as compared to Pune and

Bombay regions, this Court declined to accept such contention. It was

observed :

"In the first place there is no material to show that

the entire region within the jurisdiction of the

university in Vidharbha is backward or that the

entire region within the jurisdiction of Pune

University is advanced. There are quite possibly

even in the region within the jurisdiction of Pune

University predominantly rural areas which are

backward and equally there may be in the region

within the jurisdiction of the university in

Vidharbha, areas which are not backward. We do

not think it is possible to categorise the regions

within the jurisdiction of the various universities as

backward or advanced as if they were exclusive

categories and in any event there is no material

placed before us which would persuade us to reach

that conclusion."

Here too, in the absence of any material, we cannot take it for granted

that the premise on which the argument is sought to be built up is correct.

Similarly, when the reservations of certain percentage of seats in medical

colleges in favour of candidates from rural areas was sought to be justified

on economic considerations, a three Judge Bench of this Court speaking

through Ray, C.J., in State of U.P. vs. Pradip Tandon (1975 (1) SCC 267)

emphatically rejected the plea. We quote:

" A division between the population of

our country on the ground of poverty that the

people in the urban areas are not poor and that the

people in the rural areas are poor is neither

supported by facts nor by a division between the

urban people on the one hand and the rural people

on the other that the rural people are socially and

educationally backward class.

Some people in the rural areas may be

educationally backward, some may be socially

backward, there may be few who are both socially

and educationally backward, but it cannot be said

that all citizens residing in rural areas are socially

and educationally backward.

The following observations may also be noticed :

"The reservation for rural areas cannot be

sustained on the ground that the rural areas

represent socially and educationally backward

classes of citizens. This reservation appears to be

made for majority population of the State. Eighty

per cent of the population of the State cannot be a

homogeneous class. Poverty in rural areas cannot

be the basis of classification to support reservation

for rural areas . The incident of birth

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in rural areas is made the basic qualification. No

reservation can be made on the basis of place of

birth as that would offend Art. 15".

Though the Court was primarily dealing with an argument based on

Article 15(4) and the import of the expression "socially and educationally

backward classes of citizens" occurring in that sub-Article, the observations

quoted above are quite relevant in testing the plea raised on behalf of the

State to save the classification. In the face of what has been laid down in

Pradip Tandon's case, the State cannot possibly invoke Article 16(4).

Our attention has however been drawn to the following observations

in Nidamarti's case (supra) in reiteration of what was said in Pradeep Jain's

case (supra) :

"It is therefore, clear that where the region from

which the students of a university are largely

drawn is backward either from the point of view of

opportunities for medical education or availability

of competent and adequate medical services, it

would be constitutionally permissible, without

violating the mandate of the equality clause, to

provide a high percentage of reservation or

preference for students coming from that region,

because without reservation or preference students

from such backward region will hardly be able to

compete with those from advanced regions since

they would have no adequate opportunity for

development so as to be in a position to compete

with others. By reason of their socially or

economically disadvantaged position they would

not have been able to secure education in good

schools and they would consequently be at a

disadvantage compared to students belonging to

the affluent or well-to-do families who have had

best of school education. There can, therefore,

legitimately be reservation or preference in their

favour so far as admissions are concerned in case

of a medical college which is set up or intended to

cater to the needs of a region which is backward or

whose alumni are largely drawn from such

backward region."

These observations, in our view, cannot be legitimately pressed into

service for the purpose of justifying reservation or weightage in favour of

rural candidates on the ground of nativity/residence for purposes of public

employment. The difference in approach in relation to Articles 15 and 16

was indicated by Bhagwati, J. in Pradeep Jain's case and we have quoted the

relevant passage extensively. It was made clear in Pradeep Jain's case that

in the matter of admissions to professional colleges the considerations were

different. As far as public employment is concerned, the classification on

the basis of residence in a region or locality was broadly held to be

constitutionally impermissible. Moreover, the preferential treatment of rural

candidates in the instant case is not on the ground that they hail from the

backward region. All or most of the villages in the district or the State

cannot be presumed to be backward educationally or economically. Such a

claim was not accepted in Pradip Tandon's case by a three Judge Bench.

Even in Nidamarti's case, it was held that in absence of material, certain

regions cannot be dubbed as backward.

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 confront 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 areas with their education in the schools or

colleges located in the towns or its peripheral areas stand on a higher

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pedestal than the candidates who had studied in the rural area schools or

colleges? Is the latter comparatively a disadvantaged and economically

weaker segment when compared to the former? We do not think so. The

aspirants for the teachers jobs in primary schools be they from rural area or

town area do not generally belong to affluent class. Apparently they come

from lower middle class or poor background. By and large, in the pursuit of

education, they suffer and share the same handicaps as their fellow citizens

in rural areas. It cannot be said that the applicants from non-rural areas

have access to best of the schools and colleges which the well to do class

may have. Further, without any data, it is not possible to presume that the

schools and colleges located in the towns- small or big and their peripheral

areas are much better qualitatively, that is to say, from the point of view of

teaching standards or infrastructure facilities so as to give an edge to the

town candidates over the rural candidates.

We are, therefore, of the view that the first plea raised by the

State which is also found in the counter-affidavit filed before the High

Court (as seen from the judgment in Deepak Kumar Suthar's case) is

untenable.

We now turn our attention to two other pleas more vehemently raised

by Mr. Rajeev Dhawan as well as the counsel appearing for the State to

justify the weightage in favour of District and rural candidates.. We may

quote the averments in the counter affidavit of the State in one of the cases

i.e. SLP 10780/2001:

"These teachers were primarily recruited for primary

education of the children in backward and rural districts.

It is bounden duty of the State to provide free

and compulsory education to the children upto 14 years

irrespective of their place and status.

It has been empirically found that the teachers recruited

from urban and relatively from forward districts do not

wish to go to the rural and relatively backward districts.

The result is that 'teacher absenteeism' is rampant and

the teachers are more interested in getting themselves

transferred to relatively urban areas and forward districts.

The situation is most appalling in the district of Barmer

where the literacy rates is only 18.33%. Thus it had

become imperative that the teachers belonging to the

rural areas and belonging to certain districts should be

preferred by granting certain additional marks so that

there is teacher retention in those districts and rural areas

and there is no depletion in the teacher strength even in

the rural and backward districts. This grant of additional

marks is based upon a very noble objective of providing

education to all.

The other reason for differentia is based upon the

vernacular language which the teachers are going to

teach at the primary stage. It has been repeatedly

stressed by various educational surveys that medium of

instruction should be mother tongue as far as possible.

The State of Rajasthan is the largest state in the country

and has diverse climatic and socio-cultural zones. The

dialects/languages vary according to the topography of

the region ranging from the Thar Desert of the West to

the sub-humid climate of the East. Each zone has its

distinct language which is barely similar to that of the

other regions. By enacting a policy of granting some

additional marks to persons belonging to particular

districts shall lead to teachers conversant in local

vernacular teaching the children who some times only

know the local language. That shall establish easy

rapport and understanding of the children at the tender

age. Thus the objective of granting additional marks

shall not only lead to retention of teacher in a rural and

backward district but it shall also benefit the student

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community as they shall have a teacher who shall be able

to understand them and converse with them easily."

The two grounds pleaded in justification of preferential treatment

accorded to rural area candidates found favour with the Division Bench of

the High Court in Baljit Kaur's case (1992 WLR Raj. P.83) and Arvind

Kumar Gochar's case (decided on 6.4.94). Shri Rajeev Dhawan appearing

for the selected candidates who have filed SLP No. 10780/2001, did his

best to support the impugned circular mainly on the second ground, namely,

better familiarity with the local dialect. The learned counsel contends that

when the teachers are being recruited to serve in Gram Panchayat areas

falling within the concerned Panchyat Samiti, those hailing from the

particular district and the rural areas of that district are better suited to teach

the students within that district and the Panchyat areas comprised therein. He

submits that the local candidates can get themselves better assimilated into

the local environment and will be in a better position to interact with the

students at primary level. Stress is laid on the fact that though the

language/mother tongue is the same, the dialect varies from district to

district and even within the district. By facilitating selection of local

candidates to serve the Panchyat run schools, the State has not introduced

any discrimination on the ground of residence but acted in furtherance of the

goal to impart education. Such candidates will be more effective as primary

school teachers and more suitable for the job. It is therefore contended that

the classification is grounded on considerations having nexus with the object

sought to be achieved and is not merely related to residence. We find it

difficult to accept this contention, though plausible it is. We feel that undue

accent is being laid on the dialect theory without factual foundation. The

assertion that dialect and nuances of the spoken language varies from district

to district is not based upon empirical study or survey conducted by the

State. Not even specific particulars are given in this regard. The stand in the

counter affidavit (extracted supra) is that "each zone has its distinct

language". If that is correct, the Zila Parishad should have mentioned in the

notification that the candidates should know particular language to become

eligible for consideration. We are inclined to think that reference has been

made in the counter to 'language' instead of 'dialect' rather inadvertently.

As seen from the previous sentence, the words dialect and language are used

as interchangeable expressions, without perhaps understanding the

distinction between the two. We therefore take it that what is meant to be

conveyed in the counter is that each Zone has a distinct dialect or vernacular

and therefore local candidates of the district would be in a better position to

teach and interact with the students. In such a case, the State Government

should have identified the zones in which vernacular dissimilarities exist and

the speech and dialect vary. That could only be done on the basis of

scientific study and collection of relevant data. It is nobody's case that such

an exercise was done. In any case, if these differences exist zone-wise or

region-wise, there could possibly be no justification for giving weightage to

the candidates on the basis of residence in a district. The candidates

belonging to that zone, irrespective of the fact whether they belong to x, y or

z district of the zone could very well be familiar with the allegedly different

dialect peculiar to that zone. The argument further breaks down, if tested

from the stand point of award of bonus marks to the rural candidates. Can it

be said reasonably that candidates who have settled down in the towns will

not be familiar with the dialect of that district? Can we reasonably proceed

on the assumption that rural area candidate are more familiar with the dialect

of the district rather than the town area candidates of the same district? The

answer to both the questions in our view cannot but be in the negative. To

prefer the educated people residing in villages over those residing in towns

big or small of the same district, on the mere supposition that the former

(rural candidates) will be able to teach the rural students better would only

amount to creating an artificial distinction having no legitimate connection

to the object sought to be achieved. It would then be a case of discrimination

based primarily on residence which is proscribed by Art. 16(2).

Coming then to the next plea that the residents of towns, if appointed

will not be willing to serve the rural areas and they will be more interested in

getting themselves transferred to "relatively urban area and forward

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districts", does not in our view, stand a moment's scrutiny. The

apprehension that 'teacher absenteeism' will be rampant if non-rural

candidates are appointed, to say the least, is based on irrelevant and

unwarranted assumptions. First of all, as rightly pointed out by Dr. A.M.

Singhvi, postings and transfers are managerial functions. The concerned

authorities in-charge cannot be heard to say that there will be undue

pressures from the candidates from extraneous sources and they will have to

succumb to such pressures. Secondly the question of non rural candidates

trying to avoid working in villages and seeking transfer to town or urban

areas does not arise for the simple reason that the appointees would have no

option but to work in villages coming within the jurisdiction of the

concerned Panchayat Samiti. The only other possibility is that they may like

to have postings in the villages close to the town. If the non-rural

candidates would like to have postings at places close to the town, the rural

area candidates may equally have the desire to get postings close to their

native villages and many of them may even prefer working at places near the

town. Thus desire and aspiration in regard to choosing the place of work

need not be on a set pattern. Ultimately, it is a matter of regulation of

postings of rural as well as non-rural candidates. As regards the candidates

coming from other districts, the question of seeking inter-district transfer

does not arise, as they are required to work within the particular district in

which they are selected and appointed. The factors which may exist in the

context of appointments to State-wide cadre does not exist here. The

difficulties sought to be projected by the State appear to be more imaginary

rather than real. We have, therefore, no hesitation in rejecting this argument.

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

areas 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 non-existent 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.

One more serious infirmity in the impugned circular is that it does not

spell out any criteria or indicia for determining whether the applicant is a

resident of rural area. Everything is left bald with the potential of giving rise

to varying interpretations thereby defeating the apparent objective of the

rule. On matters such as duration of residence, place of schooling etc., there

are bound to be controversies. The authorities, who are competent to issue

residential certificates, are left to apply the criteria according to their

thinking, which can by no means be uniform. The decision in the State of

Maharashtra vs. Raj Kumar (AIR 1982 SC 1301) is illustrative of the

problem created by vague or irrelevant criteria. In that case a rule was made

by the State of Maharshtra that a candidate will be considered a rural

candidate if he had passed SSC Examination held from a village or a town

having only 'C' type municipality. The object of the rule, as noticed by this

Court, was to appoint candidates having full knowledge of rural life so that

they would be more suitable for working as officers in rural areas. The rule

was struck down on the ground that there was no nexus between

classification made and the object sought to be achieved because "as the rule

stands, any person who may not have lived in a village at all can appear for

SSC Examination from a village and yet become eligible for selection". The

rule was held to be violative of Article 14 and 16. When no guidance at all

is discernible from the impugned circular as to the identification of the

residence of the applicants especially having regard to the indefinite nature

of the concept of residence, the provision giving the benefit of bonus marks

to the rural residents will fall foul of Art. 14.

We have now come to the close of discussion on the constitutional

issue arising in the case. Now, we shall proceed to consider the question of

relief. We have to recapitulate at this juncture, how the High Court in the

two impugned judgments before us, addressed itself to the question of relief.

There are two judgments under appeal in this batch of cases. The first

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is the judgment of the Full Bench dated 18.11.1999 in Kailash Chand's case.

The second is the judgment of the Division Bench dated 13.4.2002 in a batch

of appeals filed by the State against the decision of the learned single Judge

disposing of the Writ Petitions.

In Kailash Chand's case, the earlier Full Bench judgment in Deepak

Kumar's case rendered a month earlier, the operative part of which has been

extracted at para 3 (supra) of this judgment, was implicitly followed. No

separate directions or observations are found in the full Bench judgment in

Kailash Chand's case which is under appeal now. However, it has been

made clear by the full Bench that the cases before it were being disposed of

"in the same terms" as those contained in the earlier full Bench decision.

The writ petitions were "ordered accordingly". Therefore, the operative part

of the judgment in Deepak Kumar's case applies "mutatis mutandis" to the

cases disposed of by the full Bench by its judgment dated 18.11.1999.

According to those directions, the appointment made earlier to the judgment

shall not be affected and the judgment should have prospective application

in that sense. The second part to be noticed is that the full Bench (in Deepak

Kumar's case) made it clear that no relief can be granted to the petitioners as

they will not stand to gain even if the bonus marks are omitted. No separate

finding on this aspect has been recorded by the full Bench in the impugned

order.

Coming to the second batch of cases, the learned Judges of the

Division Bench while reiterating the directions given by the full Bench in

Deepak Kumar's case, however, dismissed the appeals, though the directions

given by the learned single Judge are somewhat at variance with those

granted in Deepak Kumar's case. The learned single Judge quashed the

merit list prepared or in existence after 21.10.1999 (the date of judgment in

Deepak Kumar's case) and directed fresh merit lists to be prepared ignoring

the provision for award of bonus marks to the district and rural residents and

to regulate appointments based on that fresh list, if necessary, after giving

show cause notice to the appointees. The affected appointees (who were not

parties before the High Court) have filed the SLPs in view of the

consequential action taken by the concerned authorities.

Whether the judgment should be given prospective application so as

not to affect the appointments made prior to the date of the judgment i.e.

18.11.1999 is one question that has been debated before us in the

background of direction given by the High Court. Counsel appearing for

the original writ petitioners who succeeded in principle before the High

Court contended that there is no warrant to invoke the theory of prospective

overruling to validate unconstitutional appointments especially when such

appointments were made during the pendency of the writ petitions and some

of the appointments were made after the matter was referred to the full

Bench. At any rate, it is contended that the appointments orders issued after

the first full Bench judgment which was rendered on 21.10.1999 should not

be validated. On the other hand, it is contended by the learned counsel

appearing for the successful candidates who have been either appointed or

yet to receive appointment orders that there is every justification for the

prospective application of the judgment. While so contending, the learned

counsel find fault with the direction of the High Court in so far as it

impliedly restrains further appointments subsequent to the date of the

judgment. In this connection, it is pointed out that the selections were

finalized long prior to the judgment either of the first full Bench or of the

second full Bench, and if there was delay in issuing appointment orders

either on account of the stay order or administrative delays, the candidates

selected should not be placed at a disadvantageous position when compared

to the candidates appointed earlier. In other words, these parties contend

that the creation of a cut-off date with reference to the appointments already

made and yet to be made is unjustified and it would have been in the fitness

of things if all the selected candidates are excluded from the rigour of the

judgment as a one time measure instead of creating two classes amongst

them.

Arguments were addressed before us on the contours and limitations

of the doctrine of prospective overruling applied in our country for the first

time in Golak Nath Vs. State of Punjab (1967 (2) SCR 762) in the context of

invalidity of certain constitutional amendments and extended gradually to

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the laws found unconstitutional or even to the interpretation of ordinary

statutes. The sum and substance of this innovative principle is that when the

Court finds or lays down the correct law in the process of which the

prevalent understanding of the law undergoes a change, the Court, on

considerations of justice and fair deal, restricts the operation of the new

found law to the future so that its impact does not fall on the past

transactions. The doctrine recognises the discretion of the Court to

prescribe the limits of retroactivity of the law declared by it. It is a great

harmonizing principle equipping the Court with the power to mould the

relief to meet the ends of justice. Justification for invoking the doctrine was

also found in Articles 141 and 142 which as pointed out in Golak Nath's

case are couched in such wide and elastic terms as to enable this Court to

formulate legal doctrines to meet the ends of justice. In the aftermath of

Golak Nath case, we find quite an illuminating and analytical discussion of

the doctrine by Sawant, J. in Managing Director Vs. B. Karunakar (1993 (4)

SCC 727). The learned Judge prefaced the discussion with the following

enunciation:-

"It is now well settled that the courts can make the

law laid down by them prospective in operation to

prevent unsettlement of the settled positions, to

prevent administrative chaos and to meet the end

of justice."

Law reports are replete with cases where past actions and transactions

including appointments and promotions, though made contrary to the law

authoritatively laid down by the Court were allowed to remain either on the

principle of prospective overruling or in exercise of the inherent power of

the Court under Article 142. The learned senior counsel Mr. P.P. Rao

reminds us that this power is only available to the Supreme Court by virtue

of Article 142 and it is not open to the High Court to neutralize the effect of

unconstitutional law by having resort to the principle of prospective

overruling or analogous principle. The argument of the learned counsel,

though not without force, need not detain us for the simple reason that as this

Court is now seized of the matter, can grant or mould the relief, without in

any way being fettered by the limitations which the High Court may have

had. We are of the view that there is sufficient justification for the

prospective application of the law declared in the instant cases for more than

one reason and if so, the declaration of the High Court to that extent need

not be disturbed.

For nearly one decade the selections made by applying bonus marks

to the residents of the concerned districts and the rural areas therein were

upheld by the High Court of Rajasthan. The first decision is the case of

Baljeet Kaur decided in the year 1991 followed by Arvind Kumar Gochar's

case decided in 1994. By the time the selection process was initiated and

completed, these decisions were holding the field. However, when the writ

petitions filed by Kailash Chand and others came up for hearing before a

learned single Judge, the correctness of the view taken in those two

decisions was doubted and he directed the matters to be placed before the

learned Chief Justice for constituting a full Bench. By the time this order

was passed on 19.7.1999, we are informed that the select lists of candidates

were published in many districts. On account of the stay granted for a

period of three months and for other valid reasons, further lists were not

published. It should be noted that in a case where the law on the subject was

in a state of flux, the principle of prospective overruling was invoked by this

Court. The decision in Managing Director ECIL Vs. B. Karunakar (supra) is

illustrative of this view- point. In the present case, the legality of the

selection process with the addition of bonus marks could not have been

seriously doubted either by the appointing authorities or by the candidates in

view of the judicial precedents. The cloud was cast on the said decisions

only after the selection process was completed and the results were declared

or about to be declared. It is, therefore, a fit case to apply the judgment of

the full Bench rendered subsequent to the selection prospectively. One

more aspect which is to be taken into account is that in almost all the writ

petitions the candidates appointed, not to speak of the candidates selected,

were not made parties before the High Court. May be, the laborious and

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long-drawn exercise of serving notices on each and every party likely to be

affected need not have been gone through. At least, a general notice by

newspaper publication could have been sought for or in the alternative, at

least a few of the last candidates selected/appointed could have been put on

notice; but, that was not done in almost all the cases. That is the added

reason why the judgment treading a new path should not as far as possible

result in detriment to the candidates already appointed. We are not so much

on the question whether the writ petitioners were legally bound to implead

all the candidates selected/appointed during the pendency of the petitions

having regard to the fact that they were challenging the notification or the

policy decision of general application; but, we are taking this fact into

consideration to lean towards the view of the High Court that its judgment

ought to be applied prospectively, even if the non-impleadment is not a fatal

flaw.

Prospectivity to what extent is the next question. Counsel argues that

when once it is accepted in principle that past actions should not be

unsettled, there is no rationale in prescribing a cut off date with reference to

the date of judgment, so as to save the appointments already made and to bar

the appointments to be made. It is contended that the entire selection

process and the consequential appointments should be out of clutches of the

judgment rendered on 18.11.99 and it would be more rational and logical to

apply it to further selections. The fortuitous circumstance of not being in a

position of securing appointment orders for a variety of administrative

reasons should not stand in the way of candidates appointed or to be

appointed after the date of judgment; otherwise, it would result in injustice

and hardship to the selected candidates without any tangible benefit to the

petitioners who moved the High Court for relief. It is pointed out that in

some districts like Chittorgarh, Lok Sabha election programme came in the

way of formal appointments orders being issued. It is further pointed out

that in any case, if the judgment is to be prospectively applied as it ought

to be, the application of judgment should be from the date of its

pronouncement i.e. 18.11.1999 but not from 21.10.99 which is the date of

decision in Deepak Kumar's case pertaining to a different selection held five

years earlier.

The above argument was countered by the learned counsel appearing

for the original writ petitioners contending that after the judgment of the

High Court in Deepak Kumar's case (21.10.1999 is the date of judgment) in

which similar provision in another circular was struck down, there was

neither legal nor moral justification for making further appointments, though

the impugned judgment in Kailash Chand, was rendered on 18.11.1999. In

the first SLP filed by Kailash Chand, the senior counsel Mr. Krishnamani

raised a subsidiary contention that the High Court was wrong in proceeding

on the assumption that his client and other similarly situated petitioners

would not have got selected even if the bonus marks were ignored. In the

SLP, the said petitioner furnished the particulars relating to marks secured

by him and some other selected candidates. Quite rightly, the learned

counsel contended that the High Court apparently could not have looked

into the particulars of marks in each and every case and it would have been

in the fitness of things if it were left to the concerned authorities to go into

the factual details.

One more point which need mention. Some of the learned counsel

argued that the unsuccessful applicants should not be allowed to challenge

the selection process to the extent it goes against their interest, after having

participated in the selection and waited for the result. It is contended that the

discretionary relief under Article 226 should not be granted to such persons.

Reliance has been placed on the decision of this Court in Madan Lal Vs.

State of J & K 1995 (3) SCC 486 and other cases in support of this

argument. On the other hand, it is contended that in a case of challenge to

unconstitutional discrimination, the doctrine of acquiescence, estoppel and

the like does not apply and the writ petitioners cannot be expected to know

the constitutional implications of the impugned circular well before the

selections. We are not inclined to go into this question for the reason that

such a plea was not raised nor any argument was advanced before the High

Court.

Having due regard to the rival contentions adverted to above and

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keeping in view the factual scenario and the need to balance the competing

claims in the light of acceptance of prospective overruling in principle, we

consider it just and proper to confine the relief only to the petitioners who

moved the High Court and to make appointments made on or after

18.11.1999 in any of the districts subject to the claims of the petitioners.

Accordingly, we direct :

1. The claims of the writ petitioners should be considered afresh in the

light of this judgment vis a vis the candidates appointed on or after

18.11.99 or those in the select list who are yet to be appointed. On

such consideration, if those writ petitioners are found to have superior

merit in case the bonus marks of 10% and/or 5% are excluded, they

should be offered appointments, if necessary, by displacing the

candidates appointed on or after 18.11.1999.

2. The appointments made upto 17.11.1999 need not be reopened and

re-considered in the light of the law laid down in this judgment.

3. Writ Petition No. 542/2000 filed in this Court under Article 32 is

hereby dismissed as it was filed nearly one year after the judgment of

the High Court and no explanation has been tendered for not

approaching the High Court under Article 226 at an earlier point of

time.

Before parting, we must say that we have moulded the relief as above

on a consideration of special facts and circumstances of this case acting

within the frame-work of powers vested in this Court under Article 142 of

the Constitution. In so far as the relief has been granted or modified in the

manner aforesaid, this judgment may not be treated as a binding precedent in

any case that may arise in future.

Another parting observation. While we realize the need to generate

better employment opportunities to the people of rural backward areas and

an affirmative action in this regard is not ruled out, any such action should

be within the framework of constitutional provisions relating to equality.

Equalising unequals by taking note of their handicaps and limitations is not

impermissible under the Constitution provided that it seeks to achieve the

goal of promoting overall equality. However, measures taken by the State

on considerations of localism are not sanctioned by the constitutional

mandate of equality. As indicated in the judgment, any attempt at giving

weightage to the rural candidates should be backed up by scientific study

and considerations germane to constitutional guarantee of equality.

The appeals arising out of the SLPs are disposed of accordingly. The

impugned judgments of the High Court stand modified to that extent. The

writ petition mentioned above is dismissed. There shall be no order as to

costs.