Hon'ble SHARMA, J. - (1.) THE twenty-seven petitioners have challenged the circular dated February 26, 1991 (Schedule 'b' to the petition) issued by the Government of Rajasthan in exercise of the powers conferred on it under the second proviso to rule 17 of the Rajasthan Panchayat Samitis & Zila Parishads Service Rules, 1959 (for short, the Rules ). In fact the challenge is to para 3 of the aforesaid circular under which while determining the merit of the candidates for appointment as Teacher Grade-Ill in the various Panchayat Samitis, 20 marks out of 100 marks are allotted for the bonafide residents of Rajasthan and/or residents of urban or rural area in the district where the appointment as a Teacher is to be given.
(2.) ALL the twenty seven petitioners whose particulars including educational qualifications are contained in Schedule 'a' to the writ petition have passed their graduation and also B. Ed. from a recognised institution and in so far as their B. Ed. examination is concerned, each of them has passed from the State of Madhya Pradesh and the said degree (B. Ed.) is recognised by the State of Rajasthan as equivalent to B. Ed. and thus they are eligible for appointment to the posts of Teachers Grade III under the Rules. The post of Primary School Teacher under the scheme of the Rules as per Schedule appended to it is to be filled in by direct recruitment. A Distt. Establishment Committee is constituted and it invites applications and considers the candidature of the applicants who are eligible and they are appointed in order of their merit as awarded by the said Committee. The second proviso to rule 17 of the Rules vests powers in the State Government to issue guidelines or lay down criteria for determination of merit of the candidates and in exercise of the said powers the State Government issued the guidelines/circular No. F. 13 (14/15) Gr. Vi. P. /edu. /89/476 dated February 26, 1991. In the aforesaid circular it was provided that for determination of the merit of the candidates 100 marks will be awarded and out of those 100 marks, 20 marks are to be allotted under para 3 of the circular. Said para 3 of the aforesaid circular reads as under: ...[Vernacular Text Ommited]... Vacancies were advertised for the post of Teachers Grade III by the Zila Parishad Jhalawar and the petitioners also applied for those vacancies. Inspite of they being eligible, the petitioner's case was not considered and extra-benefit of 20 marks was given to those persons who are residents of the district of Jhalawar and thereby the petitioners were deprived of their right of consideration for the post of Teachers Grade III. The contention of the learned counsel for the petitioners is that by providing extra benefit of 20 marks there is 100% reservation on the basis of residence, urban/rural, for the candidates of Jhalawar district, in so far as the appointments, on the post of Teachers Grade III are concerned. The said condition of residence in the State/area and giving the benefit of 20 marks on the basis of residence has no nexus with the object sought to be achieved and the residence of the candidates has no co-relationship so far as the appointment to the said post of Teacher Grade III is concerned and there is no such provision in the Rules. The writ petition is contested on behalf of the State and while determining the merit of the candidates for appointment as Teacher Grade III the award of 20 marks under para 3 of the circular extracted above has been justified. It is not disputed that for determination of merit of the candidates 20 marks have been fixed for the residents of Rajasthan/area on submission of such certificate. Ten marks are allotted for bonafide residents of Rajasthan, five marks are allotted for the district for which selection/appointment is to be made and five marks are allotted to those candidates who belong to the rural area. It is also the case of the State in its reply that the petitioners are not residents of district Jhalawar as alleged by them because each of the petitioners has passed his B. Ed. examination from an institution situated in Madhya Pradesh and according to the Rules for admission to B. Ed. in Madhya Pradesh only those candidates who are residents of Madhya Pradesh are eligible to apply for B. Ed. course there and all the candidates have passed then- B. Ed. from Madhya Pradesh and obviously they must have secured admission there on the basis of bonafide resident certificates of Madhya Pradesh and therefore none of them is entitled to award of marks under the aforesaid para of the circular dated February 26,1991. It has also been submitted that each of them has concealed this fact. So far as justification for awarding 20 marks under para 3 of the aforesaid circular is concerned, it has been said by the respondents in the reply that the teachers are to be selected for rural/urban areas and as they are to be posted in the rural areas of the district, preference is to be given to the residents of those areas so that they may serve better in the rural or urban areas for which they are selected and according to the respondents the experience shows that the candidates belonging to other States manage to get themselves either transferred to nearby district neighbouring their home State or leave the job as and when they get employment in their home State. It has also been experienced that even the candidates who are bonafide residents of Rajasthan but they come from urban areas do not like to stay in the rural areas and always search for their appointment or posting in the urban areas. As soon as they succeed in securing a job in the urban areas they resign from the post of teachers in the Panchayat Samiti Primary School and thus a problem of shortage of the teachers is created in the rural Primary Schools. The weightage given in the circular to the bonafide residents of Rajasthan and moreso to such candidates who are residents of rural areas in the district for which they are selected is not contrary to the fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India. The condition has been imposed looking to the circumstances of local character, culture etc. of the persons who are going to be appointed as teachers and looking to the local conditions of the area, and they alone can serve the students better. I have heard learned counsel for the parties. Learned Addl. Advocate General, Mr. S. M. Ali, has Drought to my notice a D. B. decision of this Court in the case of Smt. Daljit Kaur and others vs. State of Rajasthan along with five other writ petitions decided on December 18, 1991, (1) by the principal seat of this Court at Jodhpur. He contends that the circular dated February 26, 1991 came up for consideration before the Division Bench of this Court in the aforesaid case of Smt. Daljit Kaur and the validity of the said circular has been upheld by the Division Bench and therefore, it is no longer open to question. It will be seen from a perusal of the aforesaid order of this court that In the case of Rajvendra & Others vs. State of Rajasthan and Others (2), the selections made earlier by the Zila Parishad were held to be illegal as they were made on the instructions issued by the State Government which were found to be illegal. Thereafter, in order to over-come of that judgment of this court the State Government amended rule 17 of the Rules and added a new proviso vide notification dated February 22, 1991 and the said proviso reads as under : " Provided further that the District Establishment Committee shall make Selections for the various posts in accordance with the general directions given by the Government from time to time without calling for interview if so provided in those instructions." It was after the insertion of the aforesaid proviso to rule 17 of the Rules that the impugned circular dated February 26, 1991 was issued. The said circular was again challenged in the aforesaid case of Smt. Daljit Kaur and a Division Bench of this Court upheld the validity of the proviso added to the aforesaid rule 17. The court referred to clause 7 of the aforesaid circular which lays down how the merit of the candidates is to be determined and how the marks are to be awarded out of total 100 marks. The marks are to be awarded as under Educational Qualifications -50 Other activities -20 Bonafide Residents -20 Teaching Experience- -10 The court then extracted para 3 of the aforesaid circular with which we are presently concerned. The Court upheld the validity of the circular. Despite the aforesaid decision of the Division Bench of this Court, learned counsel for the petitioners has contended that firstly the Division Bench of this Court did not consider the award of 20 marks on the ground of bonafide residents of Rajasthan will amount to 100% reservation for the candidates belonging to Rajasthan and secondly expressly and categorically it has not been said that para 3 of the aforesaid circular in so far as awarding 20 marks for determination of merit of the candidates is concerned does not violate Article 14 and 16 of the Constitution of India. Learned counsel contends that the award of 20 marks to the bonafide residents of Rajasthan as well as urban/rural areas virtually amounts to 100% reservation and no such reservation for appointment on the post can be made. According to the learned counsel for the appointment on the post of teachers grade III the merit should be the sole criteria so that the object of appointment is achieved. According to the learned counsel award of marks under para 3 of the circular has no nexus with the object sought to be achieved, rather it excludes the merit and therefore it is not permissible under the Constitution. Learned counsel has referred to a D. B. decision of this Court in the case of Om Prakash Sharma and others vs. State of Rajasthan and another. In that case the court was considering the validity of the policy of district-wise merit list for selection of the LDCs as provided in rule 24 of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (for short, Rules of 1957 ). Under rule 24(1) of the Rules of 1957 the Commission was required to prepare a merit lists district-wise of the candidates declared successful according to the minimum qualifying marks obtained by them in the Lower Division Clerks Examination. The court struck down the district-wise selection and said that by making selections district-wise of the LDCs those who have secured much less marks have been given appointment whereas meritorious candidates have been excluded and the policy of preparation of district-wise merit list is violative of Article 14 and 16 of the Constitution. The court also said that the constitutionality of the policy is to be judged by considering whether it is fair, reasonable and does justice to the majority of the employees and fortunes of some individuals is not the touchstone. The court therefore struck down the said policy on the ground that it has no nexus with the object sought to be achieved. Under rule 18 of the Rules a district-wise merit list of candidates considered suitable for appointment to each grade or category of posts in the district is to be forwarded by the Commission to the Distt. Establishment Committee. Under rule 18a the State Government may allot candidates in order of merit, from the list of a district, where there are no vacancies, to another district where there may be vacancies for appointment provided that the candidates are not available in the district-wise merit list of the latter district. Therefore, under the Scheme of the Rules a district-wise merit list of the candidates considered suitable for appointment is to be forwarded to the Distt. Establishment Committee but there is no bar for appointment of the candidates out of list of one district in another district in case there are no vacancies in the district and there are vacancies in the other district provided in the latter district candidates are not available in the merit list. Under Article 15(1) of the Constitution of India the State shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them. Under Article 16 (1) there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Further under Article 16 (4) of the Constitution nothing in Article 16 shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State. It will therefore be clear from the aforesaid constitutional provisions that in the matter of public employment the State cannot discriminate only on the ground of place of birth or residence or any of them. Firstly no law has been made by the State Legislature for reservation for appointments, if under para 3 of the Circular dated February 26, 1991 it can be inferred that it is reservation and secondly all Acts and Rules have to be in conformity with the provisions of Constitution and if not they are to be struck down. Under Article 16 (3) nothing in Art. 16 shall prevent Parliament from making any law prescribing in regard to a class or classes of employment or appointment to an office under the Government, or any local or other authority within State or Union territory any requirement as to residence within that State or Union territory prior to such employment or appointment. But the Parliament has not made any law under Art. 16 (3) so far as appointment as teachers grade III under the Panchayat Samitis and Zila Parishads is concerned.
(3.) IN the earlier part of this order I have already extracted para 3 of the circular dated February 26, 1991 and a bare reading of the same will show that for bonafide residents of Rajasthan 10 marks are to be awarded and if a candidate is resident of district for which the recruitment is held or the candidate is from urban area (Municipal Council or Municipal Board) he will be entitled to 5 marks and in case the candidate is resident of rural area of the district for which recruitment is to be held 10 marks will be awarded to him. It will therefore be clear that under para 3 of the aforesaid circular dated February 26, 1991 depending on the fact whether a candidate is bonafide resident of Rajasthan and is also a resident of rural area of the district for which the recruitment is to be held he will be awarded 20 marks. If the candidate is bonafide resident and belongs to urban area of the District for which recruitment is to be held he is entitled for 15 marks. If a candidate is bonafide resident of Rajasthan and is not a resident of either urban or rural area of the district for which the recruitment is to be held, he will still be entitled to 10 marks. It can therefore be said that out of 100 marks so far as bonafide residents of Rajasthan are concerned even if the candidate is not resident of urban/rural area, he will be entitled to 10 marks out of 100 which is bound to make tremendous difference in so far as the merits of the candidates are concerned. IN case where the recruitment is being held for rural areas for the post of Teacher Grade III in one district of Rajasthan and a candidate not belonging to that district, though bonafide resident of Rajasthan, will be handicapped and though more meritorious will be deprived from appointment as a Teacher and a less meritorious candidate will be recruited and appointed. IN a case where the candidate is a bonafide resident of Rajasthan and also the resident of rural area of the district for which the recruitment is made he will be entitled to 20 marks out of 100, though less meritorious, so far as educational qualifications are concerned, he will take march-over in merit than others. At any rate the award of 20 marks out of 100 to the bonafide residents of Rajasthan as well as residents of urban/rural area of the district for which recruitment is being made on a higher side is arbitrary and it has no nexus with the object sought to be achieved and the object is to select more meritorious teachers so that they may impart better education to the students and thereby better citizens turn out of the schools and further by awarding 20 marks as aforesaid out of 100 marks in my opinion amounts to 100% reservation for the candidates who are bonafide residents of Rajasthan and residents of urban/rural area of the district for which the recruitment is made. It also amounts to indirect 100% reservation on the ground of place of birth and is, therefore, hit by Article 16 of the Constitution. The matter would have been different if reasonable percentage of vacancies of teachers would have been reserved for the candidates of the district where the recruitment is to be made or some weightage, say 5 to 10 marks would have been given to the residents of that district but in the manner the marks are awarded under para 3 it amounts to 100% reservation on the ground of place of birth which is not permissible under the Constitution of INdia. IN the case of Smt. Daljit Kaur (supra) this aspect of the matter does not appear to have been examined by the Division Bench of this Court and a perusal of the aforesaid order will snow that the court only considered the award of marks on educational qualifications. In my opinion under the Scheme of the Rules the recruitment and appointment has to be made district-wise but there cannot be 100% reservation even indirectly as aforesaid and 20 marks could not have been kept for being awarded on the ground of place of birth/residence. Consequently, I allow this writ petition, quash para 3 of the circular dated February 26, 1991, but this will be prospective and not retrospective. Costs made easy. ;