ARVIND KUMAR GOCHAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(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.

(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.