MANJULATA KANTH Vs. STATE OF BIHAR

JUDGEMENT

(1.) On 15th of May, 1987, an advertisement was published in the 'Indian Nation' an English daily published from Patna under the signature of District Magistrate-cum-Collector, Katihar inviting application to the post of clerks (correspondence clerk) Junior Accounts clerk. The qualifications required were that the candidates must have passed secondary school examination from Board, University recognised by the Government or its equivalent and should have good knowledge of Hindi in Devnagri script. For being eligible for appointment, it was made essential that "candidates must be domicile of Katihar district; persons who have worked as clerks during the last strike will be given preference". The advertisement also mentions that "preference will be given to the residents of Katihar district." 221 application were received, A merit list was prepared of those candidates who were residents of Katihar district. The merit list thus prepared included the names of 84 general candidates including 6 for Scheduled Castes and four for Scheduled Tribes. Since the petitioner belonged to another district, her application was not considered. According to the counter-affidavit filed on behalf of respondent No. 2, the District Magistrate- cum-Collector of Katihar, the Government had issued an instruction under letter No. 1918 dated 28-1-1976, according to which appointments to Class HI posts should be filled up by candidates who were residents or domicile of the district where the appointments had to be made. In the Government letter mentioned above, which is Annexure-I to the counter-affidavit of respondent No. 2, the vacancies should be notified to the nearest Employment Exchange in whose area the office where appointments were going to be made was situate. Thus, local candidates would get preference in employment and there shall be less number of applications. In fact, this does not lay down any criteria as regards district- wise residential qualification of candidates but it was emphatically stated on behalf of the respondents-State that this Government instruction was followed in order to give preference to the candidates belonging to Katihar district and the petitioner not being a resident of Katihar district, her application was not considered. This is also evident from the merit list prepared by the District Establishment Committee which is Annexurs-V to the counter-affidavit of respondent No. 2. In the end of this merit list, there is a note that petitioner Smt. Manjulata Kanth is not a resident of Katihar district. The admitted position, therefore, is that the petitioner was not considered foi being appointed as she was not a resident of Katihar district. The petitioner has stated in one of her affidavits that her husband is a clerk in the Katihar Collectorate and her father-in-law holds any possesses a residential home in Katihar town and thus she is a resident of Katihar. But according to'the counter- affidavit of respondent No. 2, the petitioner's husband is a premanent resident of Madhubani district and not Katihar. The stand of respondent-State is that in order to give preference to the sons of the soil, who were conversent with the local problems and situations, this method was adopted. Respondents 3 to13 were appointed to the post of clerks by the Katihar Collector.

(2.) The petitioner has filed this writ petition challenging the appointments of respondents 3 to 13 and praying that she should be appointed against one of the posts having secured very high marks. At the time of hearing of the writ petition, the main contention raised on behalf of the petitioner was that the appointments of respondents 3 to 13 based on the ground that they were residents of Katihar district and non-consideration of the petitioner's case on the ground that she was a resident of another district is clearly in violation of Articles 14 and 16 of the Constitution of India. Learned counsel submitted that such a restriction as regards residence in the matter of appointment to public posts is not permissible at all and is without any reasonable basis. Thus the question which has fallen for consideration in this case is whether such a restriction can be put and whether the authorities can omit persons of another district from being considered for appointment to public posts.

(3.) Article 14 of the Constitution guarantees equality of opportunity in 1 matters of public employment. The relevant part of Article 16 of the Consti- I tution reads thus : "(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State." It is well established that the scope of Clause (1) of Article 16 is wider than Clause (2) of that Article. The Government is not prevented from laying down the qualifications for a service, within which term they can include not only educational qualifications but also physical fitness, age, character, sense of discipline etc. The discretion is with the Government but that discretion is confined to what has been laid down in Clause (2) of Article 16 of the Constitution. To that extent a discrimination may be permissible but discrimination on the grounds other than those mentioned in Clause (2) of Article 16 have to be weighed and judged in the light of general principles laid down in Clause (1) of Article 16. The question, therefore, is whether any preference shown to the residents of the district violates the guarantee of equity of opportunity under Article 16 (1) of the Constitution ? '