1993 Supreme(Raj) 608
RAJASTHAN HIGH COURT AT JAIPUR BENCH
G.S.Singhvi, J.
Nand Kishore Dubey - Appellant
Versus
State of Rajasthan and others - Respondent
S.B. Civil Petition No. 7082 of 1992.
Decided On : 3-08-1993
A condition of bonafide residence for appointment to a subordinate service post in the Education Department is unconstitutional and ultra vires to the Rajasthan Educational Subordinate Service Rules, 1971, and violative of Articles 14, 15, and 16 of the Constitution.
Headnote:
CONSTITUTIONAL LAW - ARTICLE 14, 15, 16 - RAJASTHAN EDUCATIONAL SUBORDINATE SERVICE RULES, 1971 - CONDITION OF BONAFIDE RESIDENCE FOR APPOINTMENT AS PHYSICAL EDUCATION TEACHER - HELD UNCONSTITUTIONAL AND ULTRA VIRES - WRIT PETITION ALLOWED.
Fact of the Case:
Petitioner, a resident of Kumher district Bharatpur, applied for selection and appointment as Physical Education Teacher in response to an advertisement issued by the District Education Officer (Elementary Education) Dholpur. His application was rejected solely on the ground that he was not a resident of Dholpur district. Petitioner challenged the rejection, arguing that the condition of bonafide residence was arbitrary, irrational, and unconstitutional.
Finding of the Court:
The court held that the condition of bonafide residence incorporated in the advertisement was ultra vires to the provisions of the Rajasthan Educational Subordinate Service Rules, 1971, and that the rejection of the petitioner's candidature on this ground was illegal and arbitrary. The court further held that the condition violated Articles 14, 15, and 16 of the Constitution, which prohibit discrimination on the ground of residence.
Issues: 1. Whether the condition of bonafide residence for appointment as Physical Education Teacher was constitutional and valid. 2. Whether the rejection of the petitioner's candidature on the ground of non-residence was legal and justified.
Ratio Decidendi: 1. The court relied on the provisions of the Rajasthan Educational Subordinate Service Rules, 1971, which do not impose any requirement of residence for selection and appointment to a subordinate service post in the Education Department. 2. The court also relied on Articles 14, 15, and 16 of the Constitution, which prohibit discrimination on the ground of residence. The court held that the condition of bonafide residence imposed by the District Education Officer was a clear violation of these constitutional provisions.
Final Decision: The writ petition was allowed. The condition of bonafide residence contained in the advertisement was declared unconstitutional and ultra vires to the Rajasthan Educational Subordinate Service Rules, 1971. The rejection of the petitioner's candidature was also declared illegal. The District Education Officer (Elementary Education) Dholpur was directed to consider the petitioner's candidature on merit for the purpose of appointment as Physical Education Teacher.
JUDGMENT
1. - Petitioner is a resident of Kumher district Bharatpur. He passed Secondary School Examination in the year 1984 from the Board of Secondary Education, Rajasthan, Ajmer. He passed Higher Secondary examination from the same Board in the year 1986. He, thereafter, passed Physical Education Examination in the year 1987 from Physical Education School, Suroth. He is registered with the Employment Exchange, Dholpur. Petitioner has placed on record Exs. 1 to 4 in support of his residence, qualifications and registration with the Employment Exchange.
2. In pursuance of the advertisement issued by the District Education Officer (Elementary Education) Dholpur on 12.5.92, Petitioner submitted his application for selection and appointment as Physical Education Teacher. This application of the petitioner has been rejected by the District Education Officer (Elementary Education), Dholpur vide his communication dated, 19.9.92 only on the ground that the petitioner is not a resident of district Dholpur.
3. Petitioner has asserted that condition No. 11 contained in the advertisement (Ex. 5) is wholly arbitrary, irrational and unconstitutional. His case is that the District Education Officer (Elementary Education), Dholpur was not entitled to restrict the choice of candidates only to those who could produce certificate of bonafide residence of district Dholpur. Petitioner has placed on record advertisements issued by the District Education Officer (Elementary Education) Jaipur and District Education Officer (Elementary Education), Ajmer as also advertisements issued by the District Education Officer (Boys Institutions) Dholpur and District Education Officer (Girls Institutions) Dholpur (Exs. 7 to 10) and has pointed out that in none of these advertisements by which recruitment was made to the posts of Physical Education Teacher Gr. III such condition of eligibility has been incorporated.
4. Petitioner has prayed that the action of the District Education Officer (Elementary Education) Dholpur be declared ultra vires to the provisions of the Constitution and be quashed and the District Education Officer (Elementary Education), Dholpur be directed to consider his candidature for selection and appointment as Physical Education Teacher Gr. III.
5. Respondents have in their reply pleaded that the petitioner is not living in Dholpur district for the last 4 years. It has been asserted that condition of bonafide residence of Dholpur was incorporated in the advertisement (exhibit-6) and since the petitioner did not fulfill this condition his candidature has been rejected. According to the respondents this condition is not ultravires to the provisions of the Constitution. Reply of the respondents is conspicuously silent about the advertisements issued by the District Education Officers (Elementary Education) of Jaipur and Ajmer as also by the District Education Officers (Boys Institutions) and (Girls Institutions) Dholpur for recruitment of Physical Education Teacher without incorporating any condition that the candidate must be a bonafide resident of a particular district.
6. The only argument advanced by the learned counsel for the petitioner is that condition No. 11 contained in the advertisement is patently unconstitutional and ultravires to the provisions of the Rajasthan Educational Subordinate Service Rules, 1971 and that rejection of the candidature of the petitioner on the ground that he is not a bonafide resident of district Dholpur is illegal and arbitrary and in my opinion argument of the learned counsel deserves acceptance.
7. Condition No. 11 incorporated in the advertisement in question reads as under :
"vkosnd /kkSyiqj ftys dk ewy fuoklh gksuh pkfg,A blds leFkZu esa l{ke vf/kdkjh }kjk iznRr izek.k i= layxz gksuk pkfg,A ijUrq mnwZ v/;kid ds in gsrq /kkSyiqj ftys dk vk'kkFkhZ miyC/k u gksus dh fLFkfr esa vU; ftys ds vk'kkFkhZ ds vkosnu i=ksa ij fopkj fd;k tk ldsxkA"
Recruitment to the post of Physical Education Teacher is regulated by th
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