Choubisa & Ors Vs. State of Rajasthan & Ors  Insc 318 (30 July
Mohapatra & P.Venkatarama Reddi.P.Venkatarama Reddi
are taken on file and are being disposed of by this common judgment.
first five appeals are filed against the judgment of the learned Single Judge
of Rajasthan High Court in Writ Petition No. 6256 of 1999.
writ petition was filed by one Chandan Singh Beniwal who is one of the
respondents herein. He was an applicant for the post of Gram Sewak cum Paden Sachive
in Barmer District. The applications for the said posts were invited by various
Zila Parishads pursuant to the circular issued by the State of Rajasthan (Rural Development and Panchayati Raj
Department) on 22.02.1999. The circular lays down, inter alia, the selection
procedure including the modalities of holding written test and preparation of
said circular was issued in exercise of the power conferred on the Government
under the proviso to Rule 273 of Rajasthan Panchayati Raj Rules, 1996. Para 7 of the Circular provides for addition of certain
marks to the marks scored in the written examination. 10% additional marks are
to be given to the residents of State of Rajasthan, 10% for the residents of
the concerned district and 5% for the residents of rural areas in that
district. It appears that the result of the written examination was declared on
October 30, 1999. As the said Chandan Singh could
not get selected he filed a writ petition questioning the circular dated 22.02.1999
insofar as it provides for bonus marks to the applicants belonging to the
districts and the rural area of the concerned district. By the time the writ
petition came up for hearing before the learned Single Judge, a Full Bench of
the High Court decided on 21.10.1999 in Deepak Kumar Suthar's case that giving
of weightage on the ground of residence in the district and rural areas by
adding bonus marks is unconstitutional. The Full Bench struck down a similar
circular issued in the context of appointment of teachers in the Education
Department. However, the Full Bench gave prospective effect to the judgment and
also declined to grant relief to the writ petitioners for the reason that even
if bonus marks were excluded, they will not stand to gain. This judgment was
followed by another Full Bench which examined the validity of a similar
circular in relation to the selections to the posts of teachers by Zila Parishads.
It may be stated that the correctness of the later Full Bench judgment rendered
on 18.11.1999 has been questioned in this Court either by the State or by the
aggrieved parties. The appeals against the judgment dated 18.11.1999 have been
disposed of today by us by a common judgment.
judgment in Deepak Kumar Suthar's case has been applied to the selection of
Gram Sewaks by the impugned judgment dated 27.02.2001. The High Court directed
preparation of a fresh merit list of candidates without adding bonus marks on
account of residence of any candidate. With this direction, the writ petition was
disposed of on 27.02.2001. Apprehending that this judgment would affect them,
many of the candidates appointed in various Zila Parishads pursuant to the
impugned selection have sought permission of this Court to file SLPs.
Accordingly, the permission has been granted and that is how the first five SLPs/appeals
are before us.
No. 17740/2001 has been filed by Zila Parishad, Bikaner against the order of the Division Bench of the High Court
dated 19.12.2000 in Civil Special Appeal No. 1593 of 2000. That was an appeal
filed by the Zila Parishad against the judgment of learned Single Judge in Writ
Petition No. 5 of 2000 which was disposed of on 27.07.2000. The learned Single
Judge followed the judgment of the Full Bench in Deepak Kumar's case and
disposed of the writ petition with a direction that "whenever respondents
proceed with the selection process, they must ensure compliance of the law laid
down by the Full Bench in Deepak Kumar's case".
wake of the two judgments referred to above, the State Government (Panchayati Raj
Department) by an order dated 12.6.2001 issued instructions to the Chief
Executive Officers of Zila Parishads directing them to recast the merit list of
the Gram Sewaks appointed after 21.10.1999 (i.e.the date of judgment in Deepak
Kumar's case) by excluding the bonus marks and regulate the appointments
accordingly. The question, therefore, turns on the validity of the impugned
notification insofar as it provides for bonus marks of 10% + 5% on the basis of
residence in the district and the rural areas of the district. It may be stated
that the bonus marks provided for the residence in the State has not been
challenged by any of the parties.
counter affidavit filed by the Additional Chief Executive Officer, Zila Parishad,
Chittorgarh on behalf of the State of Rajasthan, the preferential treatment in favour
of residents of the district and rural areas of the district concerned is
sought to be justified on two grounds which are substantially the same as those
urged in the Teachers' cases disposed of today.
it is contended that the persons selected from the urban areas and relatively
forward districts are reluctant to work in far flung areas and areas inhabitated
by tribals. It is stated in the counter :
if the posts are filled from the best available talent, tendency is to migrate
to the urban areas whenever any vacancy arises in urban and forward districts.
The rural areas and areas inhabitated by tribals remain perpetually without
effective Gram Sewaks".
it is submitted that the candidates hailing from the 'local area' know the
local language and dialect well and therefore in a better position to mingle
and communicate with the local populace which in turn leads to good governance
at the grass root level.
two considerations pleaded by the State do not at all appeal to us as they are
based on wrong factual assumptions or sweeping generalizations which have a
tendency to introduce artificial classification without in any way advancing
the avowed objective. We have already rejected such contentions in the judgment
just now delivered in relation to the appointment of primary school teachers.
As it is contended that Gram Sewaks-cum-Secretaries of Panchayats are concerned
with local self governance and therefore different considerations would apply vis--vis
their appointments, we have thought it fit to refer to and deal with this
contention separately in these appeals, though, we are relieved of the need for
detailed discussion in view of our judgment in the Teachers' batch of appeals.
to the first ground pleaded by the State, we have no hesitation in rejecting
the same. The place of posting does not depend on the choice of the public
servant. The posting and transfers could be suitably regulated in administrative
interest by the competent authority if there is a will to do so.
alleged reluctance of the persons hailing from the relatively forward districts
to work in rural areas or remote places and the so-called tendency to 'migrate'
to urban areas and forward districts is only a ruse to find some justification
for the impugned action. We fail to understand how the candidates could avoid
working in the district in which they are selected and appointed and manage to
get postings in urban areas and forward districts. It is not the case of the
appellants that the posts of Gram Sewaks belong to state- wide cadre and they
can be transferred from one district to another and even posted in urban areas.
Obviously, the appointees have no option but to work in Gram Panchayat areas
within the district in which they were appointed and deployed. It is not even
the case of the State that the candidates belonging to other districts have a
tendency to resign and vacate the office after working for some time in a
backward district. No details are furnished in this regard.
therefore, the first reason given by the appellants for giving weightage to the
applicants from the same district is wholly irrelevant and does not stand a
second ground urged by the State is equally irrelevant and untenable. Most of
the reasons given by us in the judgment just delivered in Teachers' cases will
hold good to reject this plea. No factual details nor material has been placed
before us to substantiate that the spoken language and dialect varies from
district to district. It will not be reasonable to assume that an educated
person belonging to a contiguous district or districts will not be able to
effectively communicate with the people of the district in which he is
appointed or that he would be unfamiliar with the living conditions and culture
of that district. He cannot be regarded as an alien in a district other than
his native district. If any classification has to be done in this regard, it
should be based on a scientific study but not on some broad generalization. If
any particular region or area has some peculiar socio-cultural or linguistic
features warranting a differential treatment for the purpose of deploying
personnel therein, that could only be done after conducting a survey and
identifying such regions or districts. That is the minimum which needs to be
done. There is no factual nor rational basis to treat each District as a
separate unit for the purpose of offering public employment. Above all, it is
wrong to assume that the candidates belonging to rural areas will be better
suited to serve those areas than the candidates living in nearby towns. The
criterion of merit cannot be allowed to be diluted by taking resort to such
artificial differentiation and irrelevant assumptions. On the material placed
before us, we have no hesitation in holding that the addition of bonus marks to
the applicants belonging to the same district and the rural areas of that
district would amount to discrimination which falls foul of Article 14 and 16.
come to the question of relief. We are of the view that for the reasons set out
in the judgment delivered by us today in Kailash Chand Sharma's case, the
judgment of the High Court has to be given prospective effect so that its
impact may not fall on the appointments already made prior to the date of
judgment. That is also the view taken in Deepak Kumar Suthar's case which has
been followed in the impugned orders of the High Court. However, in Writ
Petition No. 6256 of 1999, the High Court did not make it clear that the
judgment will operate prospectively, though in the other impugned order the
High Court gave effect to the judgment without touching the appointments made
before 21/10/1999. We are of the view that the date of application of the
judgment should be from 27/7/2000 which was the date on which Writ Petition 5
of 2000 was allowed by the learned Single Judge holding that the notification
in regard to bonus marks for the purpose of selection of Gram Sewaks was invalid.
The other important fact which should be taken into account in moulding the
relief is that at the instance of three persons who applied for the posts
advertised by the Zila Parishads of Barmer and Bikaner, it is not proper to set
aside the entire selection, especially when none of the appointed candidates
were made parties before the High Court.
are, therefore, inclined to confine the relief only to the parties who moved
the High Court for relief under Article 226, subject, however, to the application
of the judgment prospectively from 27/7/2000. Accordingly, we direct as follows
claims of the three writ petitioners who are respondents herein should be
considered afresh in the light of this judgment vis a vis the candidates
appointed on or after 27.07.2000 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 27.07.2000.
appointments of Gram Sewaks made upto 26.07.2000 need not be reopened and
re-considered in the light of the law laid down in the judgment.
appeals arising out of the SLPs are disposed of accordingly.
impugned judgments of the High Court stand modified to that extent.
shall be no order as to costs.