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HIGH COURT OF JUDICATURE AT ALLAHABAD
Yashwant Varma, J.
Sumit and Others – Appellants
Versus
State of U.P. and Others – Respondents
Writ Appeal Nos. 3263, 4714, 4715, 4717 of 2019, 18571, 18851, 19887, 20008, 20021, 20024, 20334, 21114, 22640, 23219, 24453 of 2018
Decided On : 08-05-2019
Constitution of India,1950 – Article 16 (2) – Discriminating or rendering ineligible a citizen of Union from employment or an office under State only on the ground of religion, race, caste, sex, descent, place of birth, residence or any of them – Despite the Constitution expressly engrafting this prohibition, the State respondents appear to have placed a stipulation restricting a recruitment process for appointment of Assistant Teachers in Basic Schools only to those who have resided in the State of U.P. for a period of 5 years prior to the date of their application – Challenged – Held, Court is of the considered view that the respondents must be commanded to fill up the vacant posts by permitting all those candidates who were not residents of the State of U.P. and who had qualified the written examination for further consideration for appointment as Assistant Teachers – The Court is conscious of the fact that relief in these situations cannot be restricted to or based upon limitative persistence alone – Consequently the Board must be commanded to invite not just the petitioners here but also all other candidates who were ultimately excluded from the recruitment process only on the ground that they were not residents of the State of U.P. – Guidelines declared ultra vires the 1981 Rules and unconstitutional – All applicants who had cleared the written examination conducted by the respondents and were ultimately excluded only on the ground of being non-residents of the State of U.P. are therefore, held to be eligible to be considered by the respondents for appointment in accordance with the provisions of the 1981 Rules –In case any of the non-suited applicants were not permitted to participate in the counseling process initially undertaken, it shall be incumbent upon the Board to initiate a fresh counseling exercise in which such applicants shall be permitted to participate –Writ petitions allowed. (Para 31,32 and 33)
Facts of the case:
Article 16 (2) of the Constitution in unambiguous terms prohibits the State from either discriminating or rendering ineligible a citizen of the Union from employment or an office under the State only on the ground of religion, race, caste, sex, descent, place of birth, residence or any of them. Despite the Constitution expressly engrafting this prohibition, the State respondents appear to have placed a stipulation restricting a recruitment process for appointment of Assistant Teachers in Basic Schools only to those who have resided in the State of U.P. for a period of 5 years prior to the date of their application.
Findings of the case:
Court is of the considered view that the respondents must be commanded to fill up the vacant posts by permitting all those candidates who were not residents of the State of U.P. and who had qualified the written examination for further consideration for appointment as Assistant Teachers – The Court is conscious of the fact that relief in these situations cannot be restricted to or based upon limitative persistence alone – Consequently the Board must be commanded to invite not just the petitioners here but also all other candidates who were ultimately excluded from the recruitment process only on the ground that they were not residents of the State of U.P. – Guidelines declared ultra vires the 1981 Rules and unconstitutional – All applicants who had cleared the written examination conducted by the respondents and were ultimately excluded only on the ground of being non-residents of the State of U.P. are therefore, held to be eligible to be considered by the respondents for appointment in accordance with the provisions of the 1981 Rules –In case any of the non-suited applicants were not permitted to participate in the counseling process initially undertaken, it shall be incumbent upon the Board to initiate a fresh counseling exercise in which such applicants shall be permitted to participate.
Result: Writ petitions allowed
Yashwant Varma, J.
1. Heard Sri Ashok Khare and Sri A.N. Tripathi, learned Senior Counsels in support of these petitions, Sri Ajeet Kumar Singh, the learned Additional Advocate General as well as Sri Ashok Kumar Yadav, learned counsels appearing for the respondents.
2. Article 16 (2) of the Constitution in unambiguous terms prohibits the State from either discriminating or rendering ineligible a citizen of the Union from employment or an office under the State only on the ground of religion, race, caste, sex, descent, place of birth, residence or any of them. Despite the Constitution expressly engrafting this prohibition, the State respondents appear to have placed a stipulation restricting a recruitment process for appointment of Assistant Teachers in Basic Schools only to those who have resided in the State of U.P. for a period of 5 years prior to the date of their application.
3. James Madison famously forewarned of constitutional guarantees being rendered mere "parchment barriers" (Federalist Paper No. 48) it is to prevent such situations where basic guarantees are infringed and sapped of their spirit that a constitutional Court must remain forever vigilant ensuring that the basic threads which stitch together our Constitution are never violated or torn apart. On 30 November 1948, Sri Jaspat Roy Kapoor member of the Constituent Assembly from the United Provinces moving an amendment to Draft Article 10 [Present Article 16 of our Constitution] which would shape the Article as it stands presently stated:-
Shri Jaspat Roy Kapoor (United Provinces: General): Mr. Vice-President, Sir, I beg to move :
"That in clause (2) of article 10, after the word birth the words or residence be inserted."
Thereafter the clause will read as follows:-
"No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth or residence, or any of them, be ineligible for any office under the State."
Sir, the object of my amendment is that every citizen of the country, whereever he might be living, should have equal opportunity of employment under the State. Every citizen irrespective of his place of residence should be eligible for employment under the State anywhere in the country. Sir, there being only one citizenship for the whole country, it should carry with it the unfettered right and privilege of employment in any part and in every nook and corner of the country. A citizen residing in the province of Bengal, Madras, Bombay or C.P. should be eligible for employment in the U.P. and similarly a resident of the U.P. should have the right and privilege of employment in any other province of the country, provided of course he possesses the other necessary qualifications for the office.. Every citizen of the country, Sir, I think, must be made to feel that he is a citizen of the country as a whole and not of any particular province where he resides. He must feel that wheresoever he goes in the country, he shall have the same rights and privileges in the matter of employment as he has in the particular part of the country where he resides. Unfortunately, Sir, for some time past we have been observing that provincialism has been growing in this country. Every now and then we hear the cry. "Bengal for Bengalis" and "Madras for Madrasis" and so on and so forth. This cry, Sir, is not in the interests of the unity of the country, or in the interests of the solidarity of the country. We find that some provincial governments have laid it down as a rule that for employment in the province the person concerned should have been living in the province for many years. One of the provinces, Sir, I am told, has laid it as a rule that they will employ only such persons as have resided within the province for fifty-two years. I do not know how far it is correct. Possibly there is some exaggeration in the report that has been conveyed to me but the fact remains that provincial governments are being pressed by the citizens of the province to lay
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