Yashwant Varma, J. - (1.) Heard Sri Ashok Khare and Sri A.N. Tripathi, learned Senior Counsels in support of these petitions, Sri Ajeet Kumar Singh, the learned Additional Advocate General as well as Sri Ashok Kumar Yadav, learned counsels appearing for the respondents.
(2.) Article 16 (2) of the Constitution in unambiguous terms prohibits the State from either discriminating or rendering ineligible a citizen of the Union from employment or an office under the State only on the ground of religion, race, caste, sex, descent, place of birth, residence or any of them. Despite the Constitution expressly engrafting this prohibition, the State respondents appear to have placed a stipulation restricting a recruitment process for appointment of Assistant Teachers in Basic Schools only to those who have resided in the State of U.P. for a period of 5 years prior to the date of their application.
(3.) James Madison famously forewarned of constitutional guarantees being rendered mere "parchment barriers", (Federalist Paper No. 48) It is to prevent such situations where basic guarantees are infringed and sapped of their spirit that a constitutional Court must remain forever vigilant ensuring that the basic threads which stitch together our Constitution are never violated or torn apart. On 30 November 1948, Sri Jaspat Roy Kapoor member of the Constituent Assembly from the United Provinces moving an amendment to Draft Article 10 [present Article 16 of our Constitution] which would shape the Article as it stands presently stated: - Shri Jaspat Roy Kapoor (United Provinces : General) : Mr. Vice-President, Sir, I beg to move : "That in clause (2) of article 10, after the word 'birth' the words 'or residence' be inserted." Thereafter the clause will read as follows :-- "No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth or residence, or any of them, be ineligible for any office under the State." Sir, the object of my amendment is that every citizen of the country, whereever he might be living, should have equal opportunity of employment under the State. Every citizen irrespective of his place of residence should be eligible for employment under the State anywhere in the country. Sir, there being only one citizenship for the whole country, it should carry with it the unfettered right and privilege of employment in any part and in every nook and corner of the country. A citizen residing in the province of Bengal, Madras, Bombay or C.P. should be eligible for employment in the U.P. and similarly a resident of the U.P. should have the right and privilege of employment in any other province of the country, provided of course he possesses the other necessary qualifications for the office.. Every citizen of the country, Sir, I think, must be made to feel that he is a citizen of the country as a whole and not of any particular province where he resides. He must feel that wheresoever he goes in the country, he shall have the same rights and privileges in the matter of employment as he has in the particular part of the country where he resides. Unfortunately, Sir, for some time past we have been observing that provincialism has been growing in this country. Every now and then we hear the cry. "Bengal for Bengalis", "Madras for Madrasis" and so on and so forth. This cry, Sir, is not in the interests of the unity of the country, or in the interests of the solidarity of the country. We find that some provincial governments have laid it down as a rule that for employment in the province the person concerned should have been living in the province for many years. One of the provinces, Sir, I am told, has laid it as a rule that they will employ only such persons as have resided within the province for fifty-two years. I do not know how far it is correct. Possibly there is some exaggeration in the report that has been conveyed to me but the fact remains that provincial governments are being pressed by the citizens of the province to lay down such rules in order to prevent residents of other provinces from seeking service under that provincial government. I can easily understand a provincial government laying it down as a rule that only those who possess adequate knowledge of the provincial language shall be eligible for employment in the province. I can also understand, Sir, a rule being laid down that a person who wants employment in the province should have adequate knowledge of local conditions. Mr. Vice-President : I am hearing other honourable Members more than the Member who is occupying the rostrum. Shri Jaspat Roy Kapoor : I was submitting, Sir, that I can easily understand provincial governments, in the interests of efficiency of the services, laying it down as a rule that only those who have adequate knowledge of the provincial language shall have employment in the province. I can also understand their laying down that persons seeking employment in the province must have adequate knowledge of the local conditions. All that is easily understandable in the interests of efficiency of the services, but to lay it down as a rule that one should have resided in the province for fifty-two years to become eligible for employment seems to me, Sir, to be simply absurd. If a man of fifty-two seeks employment, he can serve only for three more years. I submit, Sir, that this is a tendency which must be checked with a strong hand. I, therefore, submit-that in the matter of employment there should be absolutely no restriction whatsoever unless it is necessary in the interests of the efficiency of the services. The unity of the country must be preserved at all costs; the solidarity of the country must be preserved at all costs. We must do every thing in our power to preserve the unity of the country, and the amendment that I have moved aims at this and is a step in this direction; and I, therefore, commend it for the acceptance of the House.";