Supreme Court of India

KAILASH CHAND SHARMA ETC. ETC.versusSTATE OF RAJASTHAN AND ORS.

Citation: 2002 INSC 315
Decided: 30 July 2002
Disposal: Disposed off
Bench: D P MOHAPATRA

Holding

Award of bonus marks to district and rural residents in public employment is unconstitutional as it constitutes impermissible discrimination violating Articles 14 and 16, and relief is to be applied prospectively from 18 Nov 1999.

Summary

The Supreme Court examined a 1998 circular issued under the Rajasthan Panchayati Raj Rules that granted 10% bonus marks to district residents and 5% to rural‑area residents in the selection of primary‑school teachers. Unsuccessful candidates challenged the circular, arguing it violated Articles 14 and 16 of the Constitution. The Court held that the classification based solely on residence had no rational nexus with the objective of spreading primary education and amounted to impermissible discrimination, rendering the circular unconstitutional. It applied the doctrine of prospective overruling, limiting relief to appointments made after 18 November 1999 and preserving those made on or before 17 November 1999. The Court dismissed the writ petition and the appeals, modifying the High Court’s orders, and clarified that the judgment does not constitute binding precedent for future cases.

Issues considered

The circular granting bonus marks to district and rural residents violates Articles 14 and 16 of the Constitution.
Whether the classification has a sufficient nexus with the objective of spreading primary education.
Whether the State can invoke affirmative‑action provisions under Article 16(3) or Article 15(4) for rural residents.
The appropriate temporal scope of relief – prospective overruling versus retrospective invalidation of appointments.
Whether the relief should be confined to the original writ petitioners.

Legislation cited

Constitution of Indias. Article 14, s. Article 142, s. Article 16(1), s. Article 16(2), s. Article 16(3)
Rajasthan Panchayati Raj Rules, 1996s. Rule 273 and its proviso

Subjects

public employmentreservationaffirmative actionArticle 14Article 16prospective overrulingbonus marksRajasthan Panchayati Raj Rulesdiscriminationequality

Judgment

KAILASH CHAND SHARMA ETC. ETC. A
v.
STATE OF RAJASTHAN AND ORS.

JULY 30, 2002

[D.P. MOHAPATRA AND P. VENKATARAMA REDDI, JJ.] B

Rajasthan Panchayati Raj Rules, 1996-Rule 273 and its proviso--
Circular providing bonus marks to the residents of district and of rural areas
<?fthe district/or selection to public employment-Validity of-Held, amounts C
to impermissible discrimination-Reasons for classification are either non-
existent or irrelevant and have no nexus with the object sought to be achieved-
High Court Judgment to have prospective effect in view of the fact that the
Circular was challenged only after selection process was completed and in
view of earlier decisions of the High Court holding the field-Relief confined
only to writ petitioners before High Court-Relief granted under Article I 42 D
of the Constitution of India in special facts and circumstances of the case-
Constitution of India, I 950-Articles 14, I 6 and 142.

Constitution of India, 1950:

Article 16 (1),(2) and (3)-Preferential treatment in public employment E
on the ground ofresidence in particular areo-Held residence by itselfcannot
be a ground to accord preferential treatment or reservation, save as provided
in Article I 6(3).

Article 16(2)-Prohibitory mandate under-Held is not attracted if the
alleged discrimination is on grounds not merely related to residence, but the F
factum of residence is only taken into account in addition to other relevant
factors.

Policy Decision of Government-Propriety of and interference with-If
it is subversive of the doctrine of equality, it cannot sustain-It should be free G
from the vice of arbitrariness and conform to the norms both positive and
negative underlying Articles 14 and 16 of the Constitution.

Prospective overruling:

Public employment-Circular providing for bonus marks to rural H
317
318 SUPREME COURT REPORTS [2002] SUPP. 1 S.C.R.

A candidates-Challenge thereto upheld by High Court-Since challenge was
made after selection process was completed and in view of earlier decisions
of the High Court holding the field, the judgment will operate prospectively-
Precedents-Judgment-Operation of

Precedents-Reliefmoulded in order to render complete justice in specific
B cases based on special facts and circumstances-Not to be treated as precedent.

A Circular was issued providing for bonus marks of 10%+5% for
the residents of districts and rural areas of districts for selection to the
posts of primary school teachers. Unsuccessful candidates-petitioners filed
C writ petition before High Court challenging the Circular. In the meantime,
select lists were published in some districts. Full Bench of High Court
declared the Circular illegal and unconstitutional following the decision
in Deepak Kumar Suthar v. State ofRajasthan, (1999) 2 RLR 692. Thereafter
one more batch of writ petitions was disposed of by Single Judge of High
Court directing fresh merit list to be prepared in respect of the candidates
D who were appointed on or before 21.10.1999 (i.e. the date of judgment in
Deepak Kumar's case) without considering the bonus marks.

In appeal to this Court, the State and the counsel appearing for
successful candidates contended that in view of social, economic '
·E backwardness of the area residence within the district or rural areas of
that district could be a valid basis for classification for the purpose of
public employment as well; that the award of bonus marks to the residents
of rural areas is a measure of affirmative action or c'ompensatory
discrimination to help a disadvantaged section namely the rural people;
that the classification is grounded on considerations having nexus with the
F object sought to be achieved and is not merely related to residence; that
residents of town and other districts if appointed will not be willing to serve
the rural areas and they will be more interested in getting themselves
transferred to relatively urban areas and forward districts; and that those
belonging to the same district and rural areas in that district will be better
G familiar with local dialect. It is also contended that there is no rationale
prescribing a cut off date with reference to the date of judgment and hence
the entire selection process should be kept out of the clutches of the
impugned judgment.

The petitioners-unsuccessful candidates contended that the impugned
H circular is unconstitutional, as held by the High Court and that there is
KAILASH CHAND SHARMA v. STATE 319
no warrant to invoke the theory of prospective overruling to validate A
unconstitutional appointments especially when such appointments were
made during the pendency of the writ petitions and some of the
appointments were made after the matter was referred to the full Bench;
and that the appointment orders issued after the first Full Bench judgment
which was rendered on 21.10.99 should not be validated.
B
Disposing of the appeals and dismissing the writ petition filed in
Supreme Court belatedly, the Court

HELD: I.I. Award of bonus marks to the residents of the district
and the residents of the rural areas of the district amounts to impermissible C
discrimination. There is no rational basis for such preferential treatment
on the material available before the Court. The ostensible reasons put
forward to distinguish the citizens residing in the State are either non-
existent or irrelevant and they have no nexus with the object sought to be
achieved, aamely, spread of education at primary level. The offending part
of Circular has the effect of diluting merit, without in any way promoting D
the objective. The impugned Circular in so far as the award of bonus
marks is concerned, has been rightly declared to be illegal and
unconstitutional by the High Court. [343-H; 344-A-B]

1.2. Though the impugned Circular is the product of the policy
decision taken by the State Government, even then, such decision has to E
pass the test of Articles 14 and 16 of the Constitution. If the policy decision,
which in the present case has the undoubted effect of deviating from the
normal and salutary rule of selection based on merit is subversive of the
doctrine of equality, it cannot sustain. It should be free from the vice of
arbitrariness and conform to the well-settled norms, both positive and F
negative, underlying Articles 14 and 16, which together with Article 15
form part of the Constitutional code of equality. [327-H; 328-A-B)

1.3. Residence by itself - be it within a State, region, district or lesser
area within a district - cannot be a ground to accord preferential treatment
or reservation, save as provided in Article 16(3). It is not possible to G
compartmentalize the State into Districts with a view to offer employment
to the residents of that District on a preferential basis. An argument to
this effect flies in the face of the peremptory language of Article 16(2) and
runs counter to constitutional ethos founded on unity and integrity of the
nation. (328-D-F-G)
H
320 SUPREME COURT REPORTS [2002] SUPP. 1 S.C.R.

A 1.4. On a reading _of Article 16, two things are clear: firstly,
discrimination only on the ground of residence (or place of birth) in so
far as public employment is concerned is prohibited; secondly, Parliament
-is empowered to make the law prescribing residential requirement within
a State or Union Territory, as the case may be, in relation to a class or
classes of employment. In the absence of parliamentary law, even the
B prescription of requirement as to residence within the State is a taboo.
Coming to the first aspect, it must be noticed that the prohibitory mandate
under Article 16(2) is not attracted if the alleged discrimination is on
grounds not merely related to residence, but the factum of residence is
only taken into account in addition to other relevant factors. This, in effect,
C is the import of the expression 'only'. [329-C-D-E)
A. V.S. Narsimha Rao v. State ofA.P., [1970) 1 SCR 115; Pradeep Jain
v. Union of India, AIR (1984) SC 1420 and Govind A. Mane v. State of
Maharashtra, [2000) 4 SCC 200, referred to.

D 1.5. It is trite to say that India lives in villages and inhabited
predominantly by poorer sections of people. The people in the rural areas
suffer many handicaps especially in the sphere of education. But the
assumption that the proportion of employment of rural residents is much
less than that of the residents in the towns and that the educated people
in the rural areas are economically weaker than those living in towns are
E not based upon any data or concrete material. Argument built up on this
plea falls more in the realm of platitudes rather than affording a solid basis
for the classification. [337-A, B-D, E]

1.6. Court cannot proceed on the assumption that the candidates
residing in the town areas with their education in the schools or colleges
F located in the towns or its peripheral areas stand on a higher pedestal than
the candidates who had studied in the rural area schools or colleges and
that the latter is comparatively a disadvantaged and economically weaker
segment when compared to the former. The aspirants for the teachers'
jobs in primary schools-be they from rural area or town area-do not
G generally belong to affluent class. Further, without any data, it is not
possible to presume that the schools and colleges located in the towns-small
or big and their peripheral areas are much better qualitatively, that is to
say, from the point of view of teaching standards or infrastructure facilities
so as to give an edge to the town candidates over the rural candidates.
(340-B-C-D]
H
KAILASH CHAND SHARMA v. STATE 321
Nidamarti Maheshkumar v. State of Maharashtra, (1986) 2 SCC 534; A
State of U.P. v. Pradip Tandon, (1975) I SCC 267 and Pradeep Jain v.
Union of India. AIR (1984) SC 1420, relied on

State of Maharashtra v. Raj Kumar, AIR (1982) SC 1301, referred to.

I. 7. The assertion that dialect and nuances of the spoken language B
varies from district to district is not based upon empirical study or survey
conducted by the State. Not even specific particulars are given in this
regard. The stand that "each zone has its distinct language", if is correct,
the Zila Parishad should have mentioned in the notification that the
candidates should know particular language to become eligible for
consideration. The State Government should have identified·the zones in C
which vernacular dissimilarities exist and the speech and dialect vary. That
could only be done on the basis of scientific study and collection of relevant
data. It is nobody's case that such an exercise was done. If these differences
exi.st zone-wise or region-wise, there could possibly be no justification for
giving weightage to the candidates on the basis of residence in a district. D
Court cannot reasonably proceed on the assumption that rural area
candidates are more familiar with the dialect of the district rather than
the town area candidates of the same district. To prefer the educated
people residing in villages over those residing in towns- big or small of
the same district, on the mere supposition that the former (rural
candidates) will be able to teach the rural students better would only E
amount to creating an artificial distinction having no legitimate connection
to the object sought to be achieved. It would then be a case of
discrimination based primarily on residence which is prescribed by Art.
16(2). (342-C-H; 343-A, BJ

1.8. Residents of towns, if appointed will not be willing to serve the F
rural areas and they will be more interested in getting themselves
transferred to "relatively urban areas and forward districts", does not
stand scrutiny. The apprehension that 'teacher absenteism' will be
rampant if non-rural candidates are appointed, is based on irrelevant and
unwarranted assumptions. First of all, postings and transfers are G
managerial functions. The concerned authorities in-charge cannot be heard
to say that there will be undue pressures from the candidates from
extraneous sources and they will have to succumb to such pressures.
Secondly the question of non-rural candidates trying to avoid working in
villages and seeking transfer to town or urban areas does not arise for
the reason that the appointees would have no option but to work in villages H
322 SUPREME COURT REPORTS [2002) SUPP. 1 S.C.R.

A coming within the jurisdiction of the concerned Panchayat Samiti.
[343-C, DJ

1.9. When no guidance at all is discernible from the impugned
Circular as to the identification of the residence of the applicants especially
having regard to the indefinite nature of the concept of residence, the
B provision giving the benefit of bonus marks to the rural residents will fall
foul of Article 14 in this ground also. [344-FJ

2. I. Moreover, in almost all the writ petitions the candidates •'
appointed or selected, were not made parties before the High Court. That
is the added reason why the judgment treading a new path should not as
C far as possible result in detriment to the candidates already appointed.
(348-B-D)

2.2. In view of the rival contentions, the factual scenario and the need
to balance the competing claims in the light of acceptance of prospective
D overruling in principle, it is just and proper to confine the relief only to
the petitioners who moved the High Court. The claims of the writ
petitioners should be considered afresh in the light of this judgment vis a
vis the candidates appointed on or after 18.11.99 or those in the select list
who are yet to be appointed; and that the appointments made upto
17.11.1999 need not be reopened and re-considered. [349-H; 350-A, B, C)
E
2.3. The relief, in these matters is moulded on the special facts and t
circumstances of the case, acting within the framework of the power under r
Article 142 of the Constitution. In so far as the relief has been granted or
modified in the manner aforesaid, this judgment may not be treated as a
binding precedent. (350-E)
F
Golak Nath, State of Punjab, (1967) 2 SCR 762; Managing Director v.
B. Karunakar, [1993) 4 SCC 727, referred to.

CIVIL APPEL LA TE JURISDICTION : Civil Appeal No. 4417 of
2002.
G From the Judgment and Order dated 18.11.1999 of the Rajasthan High
Court in S.B.C.W.P. Nos. 3928 of 1998.

WITH

CA Nos.4418-21, 4423, 4427-4429, 4431, 4432, 4437, 4438-39, 4434,
H 4443, 4444, 4445, 4446-47, 4449, 4450, 4451, 4452, 4453, 4454, 4455,
KAILASH CHAND SHARMA v. STATE [P. VENKATARAMA REDDI, J.]323

4456, 4457, 4458-60, 4461, 4462, 4463, 4464, 4465, 4466, 4435, 4436/02 A
W.P. (C) No. 542/2000 4440 and 4441-4442 of 2002.

M.N. Krishnamani, Dr. Rajeev Dhawan, U.N. Bachawat, Dr. A.M.
Singhvi, P.P. Rao and Vijay Bahuguna, P.K. Jain, P.K. Goswami, Ms. Pratibha
Jain, A. Mishra, Ms. Ruchi Kohli, Sushi! Kumar Jain, Manish Singhvi for
Ranji Thomas, Javed M. Raom Ranbir Yadav, Ajay Kumar, Kanhiya B
Priyadarshi, Pallav Shishodia, Hemani Shanna, Ms. Shalini Shishodia, Ms.
Shobha, Manu Mridul, Devendra Nagar, Surya Kant, Bhava Dutt Shatma,
Mahabir Singh, Manoj Prasad, Atul Kumar, Prashant Kumar, Prashenjit
Keswani, Joseph Pookkatt, Rakesh Garg, K.S. Rana, C.N. Sree Kumar, Dr.
Surat Singh, Ashok Mahajan, Jagdev Singh, K.K. Gupta, Ashok K. Chauhan C
and Jagdev Singh for the appearing parties.

. The Judgment of the Court was delivered by

P.VENKATARAMA REDD!, J. Leave to appeal granted.
Consequently, the appeals are taken on file and being disposed of by this D
common Judgment.

The selections held and the consequential appointments made to \he
posts of primary school teachers by the Zila Parishads of various districts' in
the State of Rajasthan during the year 1998-1999 have given rise to these
appeals. The full Bench judgment of Rajasthan High Court dated 18.11.1999 E
in Kai/ash Chand Sharma (Petitioner in first of the appeals corresponding to
SLP (C) No. 1824/2000) v. State of Rajasthan and connected Writ Petitions
are under challenge in these appeals apart from the Division Bench Judgment
in State of Rajasthan v. Naval Kishore Sharma. The full Bench followed its
earlier judgment in Deepak Kumar Suthar v. State of Rajasthan (W.P. (C)
No. 191711995) and disposed of the Writ Petitions on the same tetms as in F
the previous full Bench reference case. At the outset, it may be stated that the
judgment of the full Bench rendered on October 21, 1999 in Deepak Kumar's
case (reported in 1999 (2) RLR 692) was in relation to the selection of
teachers Grade II and Grade III which was pursuant to the advertisement
issued by the Director, Primary and Secondary Education during the year G
1995. The said posts of teachers Grade II and Grade III are borne in State
cadre under the administrative control of Education Department of the State
Government. The second full Bench judgment, as already noted, was in the
context of selections to the posts of teachers district-wise coming within the
fold of respective Zita Parishads. In the impugned judgment the full Bench,
however, did ~ot see any impediment in applying the ratio of the previous H
324 SUPREME COURT REPORTS (2002] SUPP. l S.C.R.

A judgment. The full Bench observed that "merely because the employment
relates to the Panchayats, that does not make any difference in the light of
the law laid down in the full Bench judgment aforementioned". What was
called in question by the unsuccessful candidates who filed their applications
and appeared before the o. l Selection Boards was the award of bonus marks
B to the applicants belonging to the District and the rural areas of the district
concerned. The first full Bench (in the case of Deepak Kum'2r v. State) held
that award of such bonus marks was unconstitutional and the relevant clause
in the circular providing for bonus marks was void. The learned Judges
observed that "this kind of weightage would give a complete go-bye to the
merit of the candidates and would seriously affect the efficiency of
C administration/teaching". The full Bench answered the reference holding that
"any kind of weightage/advantage in public employment in any State service
is not permissible on the ground of place of birth or residence or on the
ground of being a resident of urban area or rural area.". Having so declared
the law, the full Bench gave the following directions in the concluding para
of the judgment :
•
I
D
"Instead of sending the matter to the appropriate bench, we think it
proper to dispose of this petition with a direction that no relief can
be granted to the petitioners as they could not succeed to get the
place in the merit list even by getting 10 bonus marks being residents
of urban area, for which they are certainly not entitled. More so, the
E petitioners have not impleaded any person from the select list, riot
even the last selected ·candidate. Thus, no relief can be granted to
them inspite of the fact that the appointments made in conformity of
the impugned Circular have not been in consonance with law.
However, we clarify that any appointment made earlier shall not be
F affected by this judgment and it would have prospective application".

It is this decision that was followed by the full Bench in the impugned
judgment and the batch of Writ Petitions were disposed ofaccordingly. Against
this judgment SLPs were filed by the original writ petitioners (six in number)
as well as the State Government and the Zita Parishad.
G
After the full Bench judgment one more batch of writ petitions came
to be disposed of by a learned single Judge of the High Court on 26.2.2001
directing a fresh merit list to be prepared in respect of the candidates who
were not appointed on or before 21.10.1999 without regard to the bonus
marks. Appeals against this judgment were filed by the State Government
H and other authorities. The Division Bench by its order dated 13.4.2001
KAILASH CHAND SHARMA v. STATE [P. VENKAT ARAMA REDD!, J. J325

dismissed those appeals. Questioning the same, SLPs were filed by the State A
as well as certain affected parties who were granted leave to appeal.

Coming to the specific facts relevant to the present appeals, at the
threshold, we should make a reference to the circular issued by the Department
of Rural Development and Panchayat Raj bearing the date 10.6.1998, which
deals with the subject of procedure to be followed for appointment to the B
vacant posts of teachers during the years 1998-1999 by way of direct
recruitment. This circular was issued in supercession of earlier orders on the
subject. It is seen from the circular that 584 7 posts were sanctioned by the
Finance Department of the Government and the appointments were to be
made to the vacancies for which sanction was accorded. The Chief Executive C
Officers-cum-Secretaries of Zila Parishads were required to issue the
advertisements by 15.6.1998 and to.have them published in the newspapers
by 20.6.1998. According to the schedule given in the circular, the process of
issuing appointment orders was to be completed by 14.8.1998. That it did not
actually happen is a different matter. The circular which is quite comprehensive
deals with various aspects. We are only concerned with the following D
provisions in the circular having a bearing on the determination of merit of
the applicant/candidate. It reads as follows :

"This year, determination of merit has been amended and determination
of merit will be done as follows:-
E
I. Marks for educational qualification :-
S.No. Qualification Weightage
I. Secondary Examination 50%
2. Senior Secondary Examination 20%
3. S.T.C./B.Ed. 30%
F
II. Fixation of Bonus marks for domiciles
Domiciles of Rajasthan - IO marks
Resident of District - 10 marks
Resident of Rural area of Distt. - 5 marks G
The other criteria evolved for award of marks under the head 'academic
achievements', bonus marks for sports etc. need not be quoted. More
particularly, we are concerned with Para II (supra) i.e., bonus marks for
'domiciles'. It may be mentioned that there is no dispute in so far as the
award of bonus marks to the 'domiciles' of the State of Rajasthan. The H
326 SUPREME COURT REPORTS (2002] SUPP. I S.C.R.

A controversy is only with regard to Items 2 and 3 i.e. l 0 marks for residence
in the District concerned and 5 marks for residence in rural areas of the
concerned district. It may be noted that there was no written examination.
The interview was of a formal nature as ·there was no assessment of
comparative merit therein.

B The above Circular is traceable to the power conferred on the State
Government under the proviso to Rule 273 occurring in Chapter XII of the
Rajasthan Panchayat Raj Rules I 996, according to which the selection for
various posts shall be made in accordance with the general directions given
by the State Government from time to time in this respect.
c In order to give effect to the orders of the State Government the Zila
Parishads issued advertisements round about 15th June, 1998 calling for
applications. It is seen from the advertisement issued by the Zila Parishad,
Barmer, the following qualifications are mentioned therein:-"
*
l. Senior secondary under New (10+2) scheme from Secondary
D
Education Board, Rajasthan or Higher secondary or equivalent under
the old scheme or secondary school certificate or equivalent from
secondary school Education Board Rajasthan with 5 subjects including
Sanskrit, Maths, English and Hindi."

E Some of the candidates hailing from different districts or towns who
were not eligible for bonus marks (l 0+5) filed the Writ Petitions under Article
226 of the Constitution questioning the circular of the State Government
(Rural Development and Panchayat Raj Department) prescribing the bonus
marks as afore-mentioned and seeking appropriate directions for their
consideration without reference to bonus marks. This was done after they
F appeared for formal interviews. By then, the select lists were published in
some Districts and in some other Districts, though they were presumably
prepared, further action was kept in abeyance for certain reasons, including
the pendency of the Writ Petitions. When the matter came up for hearing
before a learned single Judge, he felt that earlier Division Bench decisions of
G the Court in Arvind Kumar Gochar and Baljeet Kaur's case needed
reconsideration. Accordingly, the learned single Judge suggested to the learned
Chief Justice to constitute full Bench. At the same time, he stayed the final
selection pursuant to various advertisements involved in the writ petition for
three months in the hope that in the meanwhile the larger Bench will decide
the issue. That is how the full Bench was constituted. To recapitulate the
H sequence, it may be noted that the first full Bench decision in Deepak Kumar's
KAI LASH CHAND SHARMA v. STATE [P. VENKATARAMA REDD!, J.]327

case relating to appointments in the Education Department was decided on A
21.10.1999. The second full Bench dealing with the cases on hand gave its
verdict on 18.11.1999. During the interregnum between the first full Bench
judgment and the second full Bench decision, it appears that appointment
orders were issued to the selected candidates in some of the districts. The
process of issuing appointment letters seems to have continued even after the B
second full Bench judgment i.e. after 18. l l.1999.

In this factual background, the S.L.Ps came to be filed in this Court.
Those who have filed S.L.Ps fall under four categories:

(1) Those filed by the original writ petitioners who were aggrieved
by the direction in the judgment either confining its application
c
prospectively or denying relief on the ground that writ petitioners
would not have been selected even if I 0 or 15 bonus marks are
excluded. The appellant in the first of these appeals Kailash
Chand Sharma-belongs to this category. He hails from the
district of Karouli and he applied for the job in Barmer district. D
(2) Those candidates who have not been offered appointment, though
selected on the strength of the weightage accorded for residents
of the district and rural areas comprised therein.

(3) Those selected on the basis of weightage and appointed after 21- E
10-99, whose appointments were likely to be cancelled in view
of the directions in the impugned judgments.

(4) Official respondents in the Writ Petitions, viz., State of Rajasthan
and Zila Parishads.
F
In categories 2 and 3 above, persons who were not parties in the High
Court have sought permission of this Court to file SLPs, which was granted.

The first and foremost question that would arise for consideration in
this group of appeals is, whether the circular dated 10.6.1998 providing for
bonus marks for residents of the concerned district and the rural areas within G
that district is constitutionally valid tested on the touch stone of Article 16
read with Article 14 of the Constitution? It is on this aspect, learned senior
counsel appearing for the candidates concerned have argued at length with
admirable clarity, making copious reference to several pronouncements of
this Court. There can be little doubt that the impugned circular is the product H
of the policy decision taken by the State Government. Even then, as rightly
328 SUPREME COURT REPORTS [2002) SUPP. I S.C.R.

A pointed out by the High Court, such decision has to pass the test of Articles
14 and 16 of the Constitution. If the policy decision, which in the present
case has the undoubted effect of deviating from the normal and salutary rule
of selection based on merit is subversive of the doctrine of equality, it cannot
sustain. It should be free from the vice of arbitrariness and conform to the
B well-settled norms both positive and negative underlying Articles 14 and 16,
which together with Article 15 form part of the Constitutional code of equality.

In order to justify the preferential treatment accorded to residents of the
district and the rural areas of the district in the matter of selection to the posts
of teachers, the State has come forward with certain pleas either before the
C High Court or before this Court. Some of these pleas are pressed into service
by the learned counsel appearing for the parties who are the possible
beneficiaries under the impugned order of the Govt. Such pleas taken by the
State Government and from which support is sought to be drawn by the
individual parties concerned will be referred to a· little later.

D Before proceeding further we should steer clear of a misconception that
surfaced in the course of arguments advanced on behalf of the State' and
some of the parties. Based on the decisions which countenanced geographical
classification for certain weighty reasons such as socio-economic backwardness
of the area for the purpose of admissions to professional colleges, it has been
E suggested that residence within a district or rural areas of that district could
be a valid basis for classification for the purpose of public employment as
well. We have no doubt that such a sweeping argument which has the overtones
of parochialism is liable to be rejected on the plain terms of Article 16(2) and
in the light of Art. 16(3). An argument of this nature flies in the face of the
peremptory language of Article 16 (2) and runs counter to our constitutional
F ethos founded on unity and integrity of the nation. Attempts to prefer
candidates of a local area in the State were nipped in the bud by this Court
since long past. We would like to reiterate that residence by itself-be it within
a State, region, district or lesser area within a district cannot be a ground to
accord preferential treatment or reservation, s~ve as provided in Article 16(3).
G It is not possible to compartmentalize the State into Districts with a view to
offer employment to the residents of that District on a preferential basis. At
this juncture it is appropriate to undertake a brief analysis of Article 16.

Article 16 which under clause (1) guarantees equality of opportUnity
for all citizens in matters relating to employment or appointment to any
H office under the State reinforces that guarantee by prohibiting under clause
KAILASH CHAND SHARMA v. STATE [P. VENKATARAMA REDDI, J. J329

(2) discrimination on the grounds only of religion, race, caste, sex, descent, A
place of birth, residence or any of them. Be it noted that in the allied Article--
Art. 15, the word 'residence' is omitted from the opening clause prohibiting
discrimination on specified grounds. Clauses (3) and (4) of Article 16 dilutes
the rigour of clause (2) by (i) conferring an enabling power on the Parliament
to make a law prescribing the residential requirement within the State in B
regard to a class or classes of employment or appointment to an office under
the State and (ii) by enabling the State to make a provision for the reservation
of appointments or posts in favour of any backward class of citizens which
is not adequately represented in the services under the State. The newly
introduced clauses (4-A) and (4-B), apart from clause (5) of Article 16 are
the other provisions by which the embargo laid down in Article 16 (2) in C
somewhat absolute terms is lifted to meet certain specific situations with a
view to promote the overall objective underlying the Article. Here, we should
make note of two things: firstly, discrimination only on the ground of residence
(or place of birth) in so far as public employment is concerned is prohibited;
secondly, Parliament is empowered to make the law prescribing residential
requirement within a State or Union Territory, as the case may be, in relation D
to a class or classes of employment. That means, in the absence of
parliamentary law, even the prescription of requirement as to residence within
the State is a taboo. Coming to the first aspect, it must be noticed that the
prohibitory mandate under Article 16(2) is not attracted if the alleged
discrimination is on grounds not merely related to residence, but the factum E
of residence is only taken into account in addition to other relevant factors.
This, in effect, is the import of the expression 'only'.

Let us now turn our attention to some of the decided cases. As far back
as in 1969 a Constitution Bench of this Court in A. V.S Narasimha Rao v.
State of A.P., [1970] 1 SCR 115 declared that the law enacted by the Parliament F
in pursuance of Clause (3) of Article 16 making a special provision for
domicile within the Telengana region of the State of Andhra Pradesh for the
purpose of public employment within that region and the rules made thereunder
as ultra vires the Constitution. Pursuant to the enabling power conferred
under Section 3 of the Public Employment (Requirement as to Residence) G
Act, Rules were made making a person ineligible for appointment to a post
within the Telengana area under the State Government of A.P. or to a post
under a local authority in the said area unless he has been continuously
residing within the said area for a period of not less than 15 years immediately
preceding the prescribed date. The Government issued an order relieving all
'non-domicile' persons appointed on or after 1.11.1956 to certain categories H
330 SUPREME COURT REPORTS [2002) SUPP. I S.C.R.

A of posts reserved for domiciles ofTelengana under the A.P. public employment
(Requirement as to Residence) Rules. Such incumbent of post was to be
employed in the Andhra region by creating a supernumerary post, if necessary.
This legislative and executive action was struck down by this Court. After
referring to Article 16, the Court observed:

B "The intention here is to make every office or employment open and
available to every citizen, and inter alia to make offices or employment
in one part of India open to citizens in all other parts of India. The
third clause then makes an exception ................................................... .

The legislative power to create residential qualification for
c employment is thus exclusively conferred on Parliament. Parliament
can make any law, which prescribes any requirement as to residence
within the State or Union territory prior to employment or appointment
to an office in that State or Union territory. Two questions arise here,
firstly, whether Parliament, while prescribing the requirement, may
prescribe the requirement of residence in a particular part of the State
D
and, secondly, whether Parliament can delegate this function by making
a declaration and leaving the details to be filled in by the rule making
power of the Central and State Governments."

The argument that a sweeping power was given to the Parliament to make
E any. law as regards residential requirement was repelled thus:

"By the first clause equality of opportunity in employment or
appointment to an office is guaranteed. By the second clause, there
can be no discrimination, among other things, on the ground of
residence. Realising, however, that sometimes local sentiments may
F have to be respected or sometimes an inroad from more advanced
States into less developed States may have to be prevented, and a
residential qualification may, therefore, have to be prescribed, the
exception in clause (3) was made. Even so, that clause spoke of
residence within the State. The claim of Mr. Setalvad that Parliament
can make a provision regarding residence in any particular part of a
G _State would render the general prohibition lose all its meaning. The
words 'any requirement' cannot be read to warrant something which
could have been said more specifically. These words bear upon the
kirld .of residence or its duration rather than its location within the
State. We accept the argument of Mr. Gupta that the Constitution, as
H it stands, speaks of a whole State as the venue for residential
KAILASH CHAND SHARMA v. STATE [P. VENKATARAMA REDD!, J.]331

qualification and it is impossible to think that the Constituent Assembly A
was thinking of residence in Districts, Taluqas, cities, towns or villages.
The fact that this clause is an exception and came as an amendment
must dictate that a narrow construction upon the exception should. be
placed as indeed the debates in the Constituent Assembly also seem
to indicate."
B
Thus, this Court was not inclined to place too wide an interpretation on
Art. 16(3), keeping broadly in view the constitutional philosophy.

In Pradeep Jain v. Union of India, AIR (1984) SC 1420 though the
Court was concerned with the question whether residential requirement or C
institutional preference in admissions to technical and medical colleges can
be constitutionally permissible in the light of Article 15 (I) and 15 (4),
Bhagwati, J. speaking for the Court expressed his prima facie opinion thus
as regards residential requirement in the field of public employment:

"We may point out at this stage that though Art. 15(2) bars D
discrimination on grounds, not only of religion, race, caste or sex but
also on place of birth, Art 16 (2) goes further and provides that 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 State employment. So far as employment E
under the State or any local or other authority is concerned, no citizen
can be given preference nor can any discrimination be practised against
him on the ground only of residence. It would thus appear that
residential requirement would be unconstitutional as a condition of
eligibility for employment or appointment to an office under the State
.......................... But, Art. 16(3) provides an exception to this rule by F
laying down that Parliament may make a law "prescribing, in regard
to a class or classes of employment or appointment to an office under
the government of, or any local or other authority in, a State or Union
Territory, any requirement as to residence within that State or Union
territory prior to such employment or appointment." Parliament alone G
is given the right to enact an exception to the ban on discrimination
based on residence and that too only with respect to positions 'within
the employment of a State Government. But even so, wil4out any
parliamentary enactment permitting them to do so many of the State
Governments have been pursuing policies of localism since long and
these policies are now quite widespread .. Parliament has in fact H
332 SUPREME COURT REPORTS [2002) SUPP. I S.C.R.

A exercised little control over these policies formulated by the States.
The only action, which Parliament has taken under Art. 16(3) giving
it the right to set a residence requirement has been the enactment of
the Public Employment (requirement as to Residence) Act, 1957 ..
There is therefore, at present no parliamentary enactment permitting
preferential policies based on residence requirement except in the
B case of Andhra Pradesh, Manipur, Tripura and Himachal Pradesh
where the Central government has been given the right to issue
directions setting residence requirements in the subordinate services.
Yet, in the face of Art. 16(2) some of the States are adopting 'sons
of the soil' policies prescribing reservation or preference based on
c domicile or residence requirement for employment or appointment to
an office under the Government of a State or ariy local or other
authority or public sector corporation or any other corporation which
is an instrumentality or agency of the State. Prima facie this would
seem to be constitutionally impermissible though we do not wish to
express any definite opinion upon it, since it does not directly arise
D foi consideration in these writ petitions and civil appeal."

However, in so far as admissions to educational institutions such as
medical colleges are concerned, it was pointed out that Article 16(2) has no
application and residential requirement cannot per se be condemned as
E unconstitutional. It was observed that the only provision of the Constitution
on the touchstone of which such residence requirement can be tested is Article
14. On a conspectus of earlier decisions of this Court, the learned Judge
summarised the position thus in so far as admissions to professional education
colleges are concerned: -

F "It will be noticed from the above discussion that though intra-State
discrimination between persons resident in different districts or regions
of a state has by and large beeri frowned upon by the Court and
struck down as invalid as in Minor P. Rajendran's case AIR (1968)
SC 1012 (supra) and Perukaruppan's case AIR (1971) SC 2303
(supra}, the Court has in D.N. Chancha/a 's case and other similar
G cases upheld institutional r.eservation effected through university wise
distribution of seats for admission to medical colleges. The Court has
also by its decisions in D.P. Joshi's case AIR (1955) SC 334 and N.
Vasundhara's case AIR (1971) SC 1439 (supra) sustained the
constitutional validity of reservation based on residence requirement
H within a State for the purpose of admission to medical colleges. These
KAI LASH CHAND SHARMA v. STATE [P. VENKATARAMA RED DI, J.]333

decisions which all relate to admission to MBBS course are binding A
upon us and it is therefore not possible for us to hold, in the face of
these decisions that residence requirement in a State for admission to
MBBS course is irrational and irrelevant and cannot be introduced as
a condition for admission without violating the mandate of equality
of opportunity contained in Art. 14. We must proceed on the basis B
that at least so far as admission to MBBS course is concerned,
residence requirement in a State can be introduced as a condition for
admission to the MBBS course."

Bhagwati, J. underscored the need for evolving a policy of ensuring admissions
to the MBBS course on all India basis "based as it is on the postulate that C
India is one nation and every citizen of India is entitled to have equal
opportunity for education and advancement." But, it was observed that the
realization of such ideal may not be realistically possible in the present
circumstances. It was then concluded:

"We are therefore of the view that a certain percentage of reservation D
on the basis of residence requirement may legitimately be made in
order to equalize opportunities for medical admission on a broader
basis and to bring about real and not formal, actual and not merely
legal, equality. The percentage ofreservation made on this count may
also include institutional reservation for students passing the PUC or
pre-medical examination of the same university or clearing the E
qualifying examination from the school system of the educational
hinterland of the medical colleges in the State."

It is not necessary for us to refer in extenso to various other decisions of this
Court dealing with the scope of Article 15 (I) and 15 (4) vis a vis reservations
based on residence within a University or other local area for the purpose of F
admissions to professional colleges. A summary of those decisions has been
given by Bhagwati, J. in the passage extracted (supra). The requirement of
residence and education within the university area for allocation of seats in
medical colleges affiliated to that university was upheld on special
considerations noticed in that judgment. G
We may, however, advert to one recent decision wherein the view
taken in Rajendran's case (supra) was reiterated. In Govind A. Mane v. State
of Maharashtra, [2000] 4 SCC 200 it was laid down:

"Since it is not disputed by the respondents that for the purpose H
334 SUPREME COURT REPORTS [2002) SUPP. 1 S.C.R.

A of admission to B.Ed course, seats were distributed district wise without
indicating any material to show the nexus between such distribution
and the object sought to be ·achieved, it would be violative of Article
14 of the Constitution."

The lack of material to establish nexus between the geographical
B classification and the object sought to be achieved thereby was thus held to
be violative of Article 14.

The question which fell for consideration of this Court whether the
action of the State in Pradip Tandon v. State of U.P., [1975] l SCC 267 was
C in reserving certain percentage of seats available in medical colleges in favour
of candidates from rural areas, hill areas and Uttarakhand was justified? The
reservation was sought to be justified from the stand point of Article 15(4).
Repelling the contention, Ray, C.J., speaking for a three·Judge Bench observed
' that "the Constitution does not enable .the State to bring socially and
educationally backward areas within the protection of Article 15(4)". It was
D pointed out that the accent in Article 15(4) is on classes of citizens :
"The expression "classes of citizens" indicates a homogeneous section
of the people who are grouped together because of certain likenesses
and common traits and who are identifiable by some common
attributes. The homogeneity of the class of citizens is social and
E educational backwardness. Neither caste nor religion nor place of
birth will be the uniform element of common attributes to make them
a class of citizens."

Eschewing the test of poverty as the determining factor of social
backwardness this Court made the following pertinent observations :
F
" .......................A division between the population of our country on
the ground of poverty that the people in the urban areas are not poor
and that the people in the rural· areas are poor is neither supported by
facts nor by a division between the urban people on the one hand and
G the rural people on the other that the rural people are socially and
. educationally backward class.

Some people in the rural areas may be educationally backward,
some may be socially backward, there may be few who are both
socially and educationally backward, but it cannot be said that all
H citizens residing in rural areas are socially and educationally backward.
KAILASH CHAND SHARMA v. STATE [P. VENKATARAMA REDD!, J.]335

Eighty per cent of the population in the State of Uttar Pradesh in A
rural areas cannot be said to be a homogeneous class by itself. They
are not of the same kind. Their occupation is different. Their standard~
are different. Their lives are different. Population cannot be a class
by itself. Rural element does not make it a class. 'fo suggest that the
rural areas are socially and educationally backward is to have
reservation for the majority of the State."
B

It was further observed :

"The reservation for rural areas cannot be sustained on the ground
that the rural areas represent socially and educationally backward
classes of citizens. This reservation appears to be made for majority C
population of the State. Eighty per cent of the population of the State
cannot be a homogeneous class. Poverty in rural areas cannot be the
basis of classification to support reservation for rural areas."

It was then observed that "the present case of classification of rural areas is
not one of under-classification. This is a case of discrimination in favour of D
the majority of rural population to the prejudice of the students drawn from
the general category".

However, the learned Judges took the view that the hill and Uttarakhand
areas in U.P. State are 'instances' of socially and educationally backward
classes of citizens and that those living in the hill and Uttarakhand areas can E
be considered to be socially and educationally backward classes of citizens.
The social, economic and educational factors justifying such conclusion were
set out succinctly by the learned Judges. Ultimately the reservation in favour
of candidates from rural areas was declared unconstitutional while upholding
reservation for the candidates from hill and Uttarakhand areas. The principle F
laid down in the above decisions, though in the context of interpretation of
Article 15(4) is an answer to the contention of the State that bonus marks are
provided for uplifting the rural educated persons so as to utilize their services
for the upliftment of the fellow rural people through the spread of education.
Prohibition of discrimination on the basis of place of residence in the context
of public employment is an additional factor which makes it well nigh G
impossible to accept the above plea.

Before examining the further pleas in support of the impugned action
taken by the State it would be apposite to refer to the decision in State of
Maharashtra v. Raj Kumar, AIR (1982) SC 130I, on which reliance has been
placed by the High Court and reference has been made in the course of H
336 SUPREME COURT REPORTS (2002] SUPP. l S.C.R.

A arguments before us. In that case a rule was made by the State of Maharashtra
that a candidate in order to be treated as a rural candidate must have passed
SSC Examination which is held from a village or a town having only 'C'
type municipality. The object of the rule, as pointed out by this Court, was
to appoint candidates having full knowledge of rural life and its problems so
B that they would be more suitable for working as officers in rural areas. The
rule was struck down on the ground that there was no nexus between
classification made and the object sought to be achieved because "as the rule
stands any person who may not have lived in a village at all can appear for
SSC examination from a village and yet become eligible for selection". The
rule was held to be violative of Articles 14 and 16. Another point discussed
C by the Court was about the propriety of giving bonus marks for the rural
candidates and the Court held thus :

"The rules also provide that viva-voce Board would put relevant
questic;ns to judge the suitability of candidate for working in rural
areas and to test whether or not they have sufficient knowledge of
D rural problems, and this no doubt amounts to a sufficient safeguard
to ascertain the ability of the candidate regarding his knowledge about
the affairs of the village. In such a situation there was absolutely no
occasion for making an express provision for giving weightage which
would virtually convert merit into demerit and demerit into merit and
would.be per se violative of Article 14 of the Constitution as being
E an impermissible classification. The rule of weightage as applied in
this case is manifestly unreasonable and wholly arbitrary and cannot
be sustained.

This decision is not a direct authority for the proposition that a citizen
cannot be preferred for employment under the State on the ground that he or
F she hails from rural area. However, what has been laid down in regard to the
first point assumes some relevance in the cases on hand. The criterion for
identifying a rural candidate was held to be irrelevant as it had no nexus with
the object sought to be achieved. In the present case, the position is much
worse as the impugned circular does not spell out any criteria or indicia to
G determine whether an applicant is a rural candidate.

Realising the difficulty in sustaining the impugned circular of the
Government merely on the basis of classification between persons residing in
rural areas and towns, Mr. Rajeev Dhawan, learned Senior counsel as well as
the learned counsel appearing for the State, sought to draw support from the
H plea taken by the State in the counter affidavit filed in SLP (C) No. l 0780/
KAILASH CHAND SHARMA v. STATE [P. VENKATARAMA REDD!, J.]337

200 I that the award of bonus marks to the residents of rural areas is a A
measure of affirmative action or compensatory discrimination to help the
disadvantaged sections, namely, the rural people. It is trite to say that India
lives in villages and inhabited predominantly by poorer sections of people ..
The people in the rural areas suffer many handicaps especially in the sphere
of education. These factors, according to the learned counsel justify the State B
action to throw up better employt)lent opportunities to the rural citizens and
such act of levelling, it is contended, is nothing but an instance of protective
discrimination. According to the learned _counsel, the State, in the instant
case, has resorted to least offensive and least obtrusive method of protecting
the interests of the rural citizens instead of going in for wholesale reservation
and it does not in any way violate the mandate of Art. 14 or Art.16. The C
learned counsel reminds us that giving relaxations and concessions to
disadvantaged peopie are an integral part of the equality clause enshrined in
Article 14.

This plea proceeds on the supposition that the proportion of employment
of rural residents is much less than that of the residents in the towns; in other D
words, the major chunk of appointments in State services are going to those
born in and brought up in towns. The other assumption underlying this
argument is that the educated people in the rural areas are economically
weaker than those living in towns. None of these assumptions are based upon
any data or concrete material. We must say that the argument built up on this E
plea falls more in the realm of platitudes rather than affording a solid basis
for the classification. In Nidamarti Maheshkumar v. State of Maharashtra,
(1986] 2 sec 534, when region wise classification for admissions to medical
colleges was sought to be defended on the ground that Vidharbha and
Marathwada regions are backward as compared to Pune and Bombay regions,
this Court declined to accept such contention. It was observed : F
"In the first place there is no material to show that the entire region
within the jurisdiction of the university in Vidharbha is backward or
that the entire region within the jurisdiction of Pune University is
advanced. There are quite possibly even in the region within the G
jurisdiction of Pune University predominantly rural areas which are
backward and equally there may be in the region within the jurisdiction
of the university in Vidharbha, areas which are not backward. We do
not think it is possible to categorise the regions within the jurisdiction
of the various universities as backward or advanced as if they were
exclusive categories and in any event there is no material placed H
338 SUPREME COURT REPORTS [2002] SUPP. l S.C.R.

A before us which would persuade us to reach that conclusion."

Here too, in the absence of any material, we· cannot take it for granted
that the premise on which the argument is sought to be built up is correct.
Similarly, ~hen the reservations of certain percentage of seats in medical
co'lleges in favour of candidates from rural areas was sought to be justified
B on economic considerations, a three Judge Bench of this Court speaking
through Ray, C.J., in State of U.P. v. Pradip Tandon, [1975] 1 SCC 267)
(
~-
emphatically rejected the plea. We quote:

" ............... A division between the population of our country on the
ground of poverty that the people in the urban areas are not poor and
c that the people in the rural areas are poor is neither supported by facts
nor by a division between the urban people on the one hand and the
rural people on the other that the rural people are socially and
educationally backward class.
J
Some people in the rural areas may be educationally backward, '
D some may be socially backward, there may be few who are lioth
socially, and educationally backward, but it cannot be said that all
citizens residing in rural areas are socially and educationally backward.

E
The following observations may also be noticed :

"The reservation for rural areas cannot be sustained on the ground
that the rural areas represent socially and educationally backward
,
classes of citizens. This reservation appears to be made for majority
population of the State. Eighty per cent of the population of the State
cannot be a homogeneous class. Poverty in rural areas cannot be the
basis of classification to support reservation for mral areas . The
F
incident of birth in rural areas is made the basic qualification. No
reservation can be made on the basis of place of birth as that would
offend Art. 15".

Though the Court was primarily dealing with an argument based on
G Article 15(4) and the import of the expression "socially and educationally
backward classes of citizens" occurring in that sub~Article, the observations
quoted above are quite relevant in testing the plea raised on behalf of the
State to save the classification. In the face of what has been laid down in
Pradip Tandon 's case, the State cannot possibly invoke Article 16(4).

H Our attention has however been drawn to the following observations in
KAILASH CHAND SHARMA v. STATE [P. VENKATARAMA REDDI, J.)339

Nidamarti's case (supra) in reiteration of what was said in Pradeep Jain's A
case (supra) :

"It is therefore, clear that where the region from which the students
of a university are largely drawn is backward either from the point of
view of opportunities for medical education or availability of
competent and adequate medical services, it would be constitutionally B
permissible, without violating the mandate of the equality clause, to
provide a high percentage of reservation or preference for students
coming from that region, because without reservation or preference
students from such backward region will hardly be able to compete
with those from advanced regions since they would have no adequate C
opportunity for development so as to be in a position to compete with
others. By reason of their socially or economically disadvantaged
position they would not have been able to secure education in good
schools and they would consequently be at a disadvantage compared
to students belonging to the affluent or well-to-do families who have
had best of school education. There can, therefore, legitimately be D
reservation or preference in their favour so far as admissions are
concerned in case of a medical college which is set up or intended to
cater to the needs of a region which is backward or whose alumni are
largely drawn from such backward region."
E
These observations, in our view, cannot be legitimately pressed into
service for the purpose of justifying reservation or weightage in favour of
rural candidates on the ground of nativity/residence for purposes of public
employment. The difference in approach in relation to Articles 15 and 16 was
indicated by Bhagwati, J. in Pradeep Jain's case and we have quoted the
relevant passage extensively. It was made clear in Pradeep Jain's case that in F
the matter of admissions to professional colleges the considerations were
different. As far as public employment is concerned, the classification on the
basis of residence in a region or locality was broadly held to be constitutionally
impermissible. Moreover, the preferential treatment of rural candidates in the
instant case is not on the ground that they hail from the backward region. All G
or most of the villages in the district or the State cannot be presumed to be
backward educationally or economically. Such a claim was not accepted in
Pradip Tandon's case by a three Judge Bench. Even in Nidamarti's case, it
was held that in absence of material, certain regions cannot be dubbed as
backward.
H
340 SUPREME COURT REPORTS (2002] SUPP. 1 S.C.R.

A The justifiability of the plea stemming from the premise that uplifting
the rural people is an affirmative action to improve their lot can be tested
from the concrete situation which confront us in the present cases. We are
here concerned with the selections to the posts of teachers of primary schools,
the minimum qualification being SSC coupled with basic training course in
B teaching. Can he Court proceed on the assumption that the candidates residing
in the town areas with their education in the schools or colleges located in
the towns or its peripheral areas stand on a higher pedestal than the candidates
who had studied in the rural area schools or colleges? Is the latter
comparatively a disadvantaged and economically weaker segment when
compared to the former? We do not think so. The aspirants for the teachers
C jobs in primary schools be they from rural area or town area do not generally
belong to affluent class. Apparently they come from lower middle class or
poor background. By and large, in the pursuit of education, they suffer and
share the same handicaps as their fellow citizens in rural areas. It cannot be
said that the applicants from non-rural areas have access to best of the schools
and colleges which the well to do class may ha:ve. Further, without any data,
D it is not possible to presume that the schools and colleges located in the
towns- small or big and their peripheral areas are much better qualitatively,
that is to say, from the point of view of teaching standards or infrastructure
facilities so as to give an edge to the town candidates over the rural candidates.

We are, therefore, of the view that the first plea raised by the State .
E which is also found in the counter-affidavit filed before the High Court (as
seen from the judgment in Deepak Kumar Suthar 's case) is untenable.

We now turn our attention to two other pleas more vehemently raised
by Mr. Rajeev Dhawan as well as the counsel appearing for the State to
F justify the weightage in favour of District and rural candidates .. We may
quote the averments in the counter affidavit of the State in one of the cases
i.e. SLP 10780/2001:

· "These teachers were primarily recruited for primary education of the
children in backward and rural districts. It is bounden duty of the
G State to provide free and compulsory education to the children upto
14 years irrespective of their place and status .

..... .................. It has been empirically found that the teachers recruited
from urban and relatively from forward districts do not wish to go to
the rural and relatively backward districts. The result is that 'teacher
H absenteeism' is rampant and the teachers are more interested in getting
KAILASH CHAND SHARMA v. STATE [P. VENKATARAMA REDD!, J.)341

themselves transferred to relatively urban areas and forward districts. A
The situation is most appalling in the district of Barmer where the
literacy rates is only 18.33%. Thus it had become imperative that the
teachers belonging to the rural areas and belonging to certain districts
should be preferred by granting certain additional marks so that there
is teacher retention in those districts and rural areas and there is no
depletion in the teacher strength even in the rural and backward B
districts. Thi~ grant of additional marks is based upon a very noble
objective of providing education to all.

The other reason for differentia is based upon the vernacular language
which the teachers are going to teach at the primary stage. It has been C
repeatedly stressed by various educational surveys that medium of
instruction should be mother tongue as far as possible. The State of
Rajasthan is the largest state in the country and has diverse climatic
and socio-cultural zones. The dialects/languages vary according to
the topography of the region ranging from the That Desert of the
West to the sub-humid climate of the East. Each zone has its distinct D
language which is barely similar to that of the other regions. By
enacting a policy of granting some additional marks to persons
belonging to particular districts shall lead to teachers conversant in
local vernacular teaching the children who some times only know the
local language. That shall establish easy rapport and understanding of E
the children at the tender age. Thus the objective of granting additional
marks shall not only lead to retention of teacher in a rural and backward
district but it shall also benefit the student community as they shall
have a teacher who shall be able to understand them and converse
·with them easily."
F
The two grounds pleaded in justification of preferential treatment
accorded to rural area candidates found favour with the Division Bench· of
the High Court in Baljit Kaur 's case (1992 WLR Raj. P.83) an~ Arvind
Kumar Gachar's case (decided on 6.4.94). Shri Rajeev Dhawan appearing
for the selected candidates who have filed SLP (C) No. 10780/2001, did his G
best to support the impugned circular mainly on the second ground, namely,
better familiarity with the local dialect. The learned counsel contends that
when the teachers are being recruited to serve in Gram Panchayat areas
falling within the concerned Panchyat Samiti, those hailing from the particular
district and the rural areas of that district are better suited to teach the students
within that district and the Panchyat areas comprised therein. He submits that H
342 SUPREME COURT REPORTS [2002) SUPP. I S.C.R.

A the local candidates can get themselves better assimilated into the local
environment and will be in a better position to interact with the students at
primary level. Stress is laid on the fact that though the language/mother
tongue is the same, the dialect varies from district to district and even within
the district. By facilitating selection of local candidates to serve the Panchyat
B run schools, the State has not introduced any discrimination on the ground of
residence but acted in furtherance of the goal to impart education. Such
candidates will be more effective as primary school teachers and more suitable
for the job. It is therefore contended that the classification is grounded on
considerations having nexus with the object sought to be achieved and is not
merely related to residence. We find it difficult to accept this contention,
C though plausible it is. We feel that undue accent is being laid on the dialect
· theory without factual foundation. The assertion that dialect and nuances of
the spoken language varies from district to district is not based upon empirical
study or survey conducted by the State. Not even specific particulars are
given in this regard. The stand in the counter affidavit (extracted supra) is
that "each zone has its distinct language". If that is correct, the Zila Parishad
D should have mentioned in the notification that the candidates should know
particular language to become eligible for consideration. We are inclined to
think that reference has been made in the counter to 'language' instead of
'dialect' rather inadvertently. As seen from the previous sentence, the words
dialect and language are used as interchangeable expressions, without perhaps
E understanding the distinction between the two. We therefore take it that what
is meant to be conveyed in the counter is that each Zone has a distinct dialect
or vernacular and therefore local candidates of the district would be in a
better position to teach and interact with the students. In such a case, the
State Government should have identified the zones in which vernacular
dissimilarities exist and the speech and dialect vary. That could only be done
F on the basis of scientific study and collection of relevant data. It is nobody's
case that such an exercise was done. In any case, if these differences exist
zone-wise or region-wise, there could possibly be no justification for giving
weightage to the candidates on the basis of residence in ~ district. The
candidates belonging to that zone, irrespective of the fact whether they belong
G to x, y or z district of the zone could very well be familiar with the allegedly
different dialect peculiar to that zone. The argument further breaks down, if
tested from the stand point of award of bonus marks to the rural candidates.
Can it be said reasonably that candidates who have settled down in the towns
will not be familiar with the dialect of that district? Can we reasonably
proceed on the assumption that rural area candidate are more familiar with
H the dialect of the district rather than the town area candidates of the same
KAILASHCHANDSHARMAv. STATE [P. VENKATARAMAREDDI,J.)343

district? The answer to both the questions in our view cannot but be in the A
negative. To prefer the educated people residing in villages over those residing
in towns big or small of the same district, on the mere supposition that the
former (rural candidates) will be able to teach the rural students better would
only amount to creating an artificial distinction having no legitimate connection
to the object sought to be achieved. It would then be a case of discrimination B
based primarily on residence which is prescribed by Art. 16(2).

Coming then to the next plea that the residents of towns, if appointed
will not be willing to serve the rural areas and they will be more interested
in getting themselves transferred to "relatively urban area and forward
districts", does not in our view, stand a moment's scrutiny. The apprehension C
that 'teacher absenteeism' will be rampant if non-rural candidates are
appointed, to say the least, is based on irrelevant and unwarranted assumptions.
First of all, as rightly pointed out by Dr. A.M. Singhvi, postings and transfers
are managerial functions. The concerned authorities in-charge cannot be heard
to say that there will be undue pressures from the candidates from extraneous
sources and they will have to succumb to such pressures. Secondly the question D
of non rural candidates trying to avoid working in villages and seeking transfer
to town or urban areas does not arise for the simple reason that the appointees
would have no option but to work in villages coming within the jurisdiction
of the concerned Panchayat Sarniti. The only other possibility is that they
may like to have postings in the villages close to the town. If the non-rural E
candidates would like to have postings at places close to the town, the rural
area candidates may equally have the desire to get postings close to their
native villages and many of them may even prefer working at places near the
town. Thus desire and aspiration in regard to choosing the place of work
need not be on a set pattern. Ultimately, it is a matter of regulation of
postings of rural as well as non-rural candidates. As regards the candidates F
coming from other districts, the question of seeking inter-district transfer
does not aris~, as they are required to work within the particular district in
which they are selected and appointed. The factors which may exist in the
context of appointments to State-wide cadre does not exist here. The difficulties
sought to be projected by the State appear to be more imaginary rather than G
real. We have, therefore, no hesitation in rejecting this argument.

The above discussion leads us to the conclusion that the award of
bonus marks to the residents of the district and the residents of the rural areas
of the district amounts to impermissible discrimination. There is no rational
basis for such preferential treatment on the material available before us. The H
344 SUPREME COURT REPORTS [2002) SUPP. I S.C.R.

A ostensible reasons put forward to distinguish the citizens residing in the State
are either non-existent or irrelevant and they have no nexus with the object
sought to be achieved, namely, spread of education at primary level. The
offending part of Circular has the effect of diluting merit, without in any way
promoting the objective. The impugned circular dated l 0.6.1998 in so far as
B the award of bonus. marks is concerned, has been rightly declared to be
illegal and unconstitutional by the High Court.

One more serious infirmity in the impugned circular is.that it does not
spell out any criteria or indicia for determining whether the applicant is a
resident of rural area. Everything is left bald with the potential of giving rise
C to varying interpretations thereby defeating the apparent objective of the rule.
On matters such as duration of residence, place of schooling etc., there are
bound to be controversies. The authorities, who are competent . to issue
residential certificates, are left to apply the criteria according to their thinking,
which can by no means be uniform. The decision in the State of Maharashtra
v. Raj Kumar, AIR (1982) SC 1301 is illustrative of the problem created by
D vague or irrelevant criteria. In that case a rule was made by the State of
Maharshtra that a candidate will be considered a rural candidate if he had
passed SSC Examination held from a village or a town having only 'C' type
municipality. The object of the rule, as noticed by this Court, was to appoint
candidates having full knowledge of rural life so that they would be more
E suitable for working as officers in rural areas. The rule was struck down on
the ground that there was no nexus between classification made and the
object sought to be achieved because "as the rule stands, any person who
may not have lived in a village at all can appear for SSC Examination from
a village and yet become eligible for selection". The rule was held to be
violative of Articles 14 and 16. When no guidance at all is discernible from
F the impugned circular as to the identification of the residence of the applicants
especially having regard to the indefinite nature of the concept of residence,
the provision giving the benefit of bonus marks to the rural residents will fall
foul of Art. 14.

We have now come to the close of discussion on the constitutional
G issue arising in the case. Now, we shall proceed to consider the question of
relief. We have to recapitulate at this juncture, how the High Court in the two
impugned judgments before us, addressed itself to the question of relief.

There are two judgments under appeal in this batch of cases. The first
H is the judgment of the Full Bench dated l 8. l l. l 999 in Kai/ash Chand's case.
KAILASH CHAND SHARMA v. STATE [P. VENKATARAMA REDD!, J.]345

The second is the judgment of the Division Bench dated 13.4.2002 in a batch A
of appeals filed by the State against the decision of the learned single Judge
disposing of the Writ Petitions.

In Kai/ash Chand's case, the earlier full Bench judgment in Deepak
Kumar's case rendered a month earlier, the operative part of which has been
extracted at para 3 (supra) of this judgment, was implicitly followed. No B
separate directions or observations are found in the full Bench judgment in
Kai/ash Chand's case which is under appeal now. However, it has been made
clear by the full Bench that the cases before it were being disposed of "in the
same terms" as those contained in the earlier full Bench decision. The writ
petitions were "ordered accordingly". Therefore, the operative part of the C
judgment in Deepak Kumar's case applies "mutatis mutandis" to the cases
disposed of by the full Bench by its judgment dated 18.11.1999. According
to those directions, the appointment made earlier to the judgment shall not be
affected and the judgment should have prospective application in that sense.
The second point to be noticed is that the fu II Bench (in Deepak Kumar's
case) made it clear that no relief can be granted to the petitioners as they will D
not stand to gain even if the bonus marks are omitted. No separate finding
on this aspect has been recorded by the full Bench in the impugned order.

Coming to the second batch of cases, the learned Judges of the Division
Bench while reiterating the directions given by the full Bench in Deepak E
Kumar's case, however, dismissed the appeals, though the directions given
by the learned single Judge are somewhat at variance with those granted in
Deepak Kumar's case. The learned single Judge quashed the merit list prepared
or in existence after 21.10.1999 (the date of judgment in Deepak Kumar's
case) and directed fresh merit lists to be prepared ignoring the provision for
award of bonus marks to the district and rural residents and to regulate F
appointtnents based on that fresh list, if necessary, after giving show cause
notice to the appointees. The affected appointees (who were not parties before
the High Court) have filed the SLPs in view of the consequential action taken
by the concerned authorities.

Whether the judgment should be given prospective application so as G
not to affect the appointtnents made prior to the da'i" of the judgment i.e.
18.11.1999 is one question that has been debated befo~e us in the background
of direction given by the High Court. Counsel appear/ng for the original writ
petitioners who succeeded in principle before the Hi~h Court contended that
there is no warrant to invoke the theory of prospecti~e overruling to validate H
346 SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A unconstitutional appointments especially when such appointments were made
during the pendency of the writ petitions and some of the appointments were
made after the matter was referred to the full Bench. At any rate, it is contended
that the appointments orders issued after the first full Bench judgment which
was rendered on 21.10.1999 should not be validated. On the other hand, it
is contended by the learned counsel appearing for the successful candidates
B who have been either appointed or yet to receive appointment orders that
there is every justification for the prospective application of the judgment.
While so contending, the learned counsel find fault with the direction of the
High Court in so far as it impliedly restrains further appointments subsequent
to the date of the judgment. In this connection, it is pointed out that the
C selections were finalized long prior to the judgment either of the first full
Bench or of the second full Bench, and if there was delay in issuing
appointment orders either on account of the stay order or administrative
delays, the candidates selected should not be placed at a disadvantageous
position when compared to the candidates appointed earlier. In other words,
these parties contend that the creation of a cut-off date with reference to the
D appointments already made and yet to be made is unjustified and it would
have been in the fitness of things if all the selected candidates are excluded
from the rigour of the judgment as a one time measure instead of creating
two classes amongst them.

Arguments were addressed before us on the contours and limitations of
E
the doctrine of prospective overruling applied in our country for the first time
in Golak Nath v. State of Punjab, [1967] 2 SCR 762 in the context of
invalidity of certain constitutional amendments and extended gradually to the
laws found unconstitutional or even to the interpretation of ordinary statutes.
The sum and substance of this innovative principle is that when the Court
F finds or lays down the correct law in the process of which the prevalent
understanding of the law undergoes a change, the Court, on considerations of
justice and fair deal, restricts the operation of the new found law to the future
so that its impact does not fall on the past transactions. The doctrine recognises
the discretion of the Court to prescribe the limits of retroactivity of the law
G declared by it. It is a great harmonizing principle equipping the Court with
the power to mould the relief to meet the ends of justice. Justification for
invoking the doctrine was also found in Articles 141 and 142 which as
pointed out in Golak Nath 's case are couched in such wide and elastic terms
as to enable this Court to formulate legal doctrines to meet the ends of
justice. In the aftermath of Golak Nath case, we find quite an illuminating
H and analytical discussion of the doctrine by Sawant, J. in Managing Director
KAILASH CHAND SHARMA v. STATE [P. VENKATARAMA REDD!, l.]347

v. B. Karunakar, [I 993] 4 SCC 727. The learned Judge prefaced the discussion A
with the following enunciation:-

"lt is now well settled that the courts can make the law laid down by
them prospective in operation to prevent unsettlement of the settled
positions, to prevent administrative chaos and to meet the end of
justice." B
Law reports are replete with cases where past actions and transactions
including appointments and promotions, though made contrary to the law
authoritatively laid down by the Court were allowed to remain either on the
principle of prospective overruling or in exercise of the inherent power of the C
Court under Article 142. The learned senior counsel Mr. P.P. Rao reminds us
that this power is only available to the Supreme Court by virtue of Article
142 and it is not open to the High Court to neutralize the effect of
unconstitutional law by having resort to the principle of prospective overruling
or analogous principle. The argument of the learned counsel, though not
without force, need not detain us for the simple reason that as this Court is D
now seized of the matter, can grant or mould the relief, without in any way
being fettered by the limitations which the High Court may have had. We are
of the view that there is sufficient justification for the prospective application
of the law declared in the instant cases for more than one reason and if so,
the declaration of the High Court to that extent need not be disturbed.
E
For nearly one decade the selections made by applying bonus marks to
the residents of the concerned districts and the rural areas therein were upheld
by the High Court of Rajasthan. The first decision is the case of Baljeet Kaur
decided in the year 1991 followed by Arvind Kumar Gochar 's case decided
in 1994. By the time the selection process was initiated and completed, these p
decisions were holding the field. However, when the writ petitions filed by
Kailash Chand and others came up for hearing before a learned single Judge,
the correctness of the view taken in those two decisions was doubted and he
directed the matters to be placed before the learned Chief Justice for
constituting a full Bench. By the time this order was passed on 19.7.1999, we
are informed that the select lists of candidates were published in many districts. G
On account of the stay granted for a period of three months and for other
valid reasons, further lists were not published. It should be noted that in a
case where the law on the subject was in a state of flux, the principle of
prospective overruling was invoked by this Court. The decision in Managing
Director EClL v. B. Karunakar (supra) is illustrative of this view-point. In H
348 SUPREME COURT REPORTS (2002) SUPP. 1 S.C.R.

A the present case, the legality of the selection process with the addition of
bonus marks celuld not have been seriously doubted either by the appointing
authorities or by the candidates in view of the judicial precedents. The cloud
was cast on the said decisions only after the selection process was completed
and the results were declared or about to be declared. It is, therefore, a fit
case to apply the judgment of the full Bench rendered subsequent to the
B selection prospectively. One more aspect which is to be taken into account
is that in almost all the writ petitions the candidates appointed, not to speak
of the candidates selected, were not made parties before the High Court. May
be, the laborious and long-drawn exercise of serving notices on each and
every party likely to be affected need not have been gone through. At least,
C a general notice by newspaper publication could have been sought for or in
the alternative, at least a few of the last candidates selected/appointed could
have been put on notice; but, that was not done in almost all the cases. That
is the added reason why the judgment treading a new path should not as far
as possible result in detriment to the candidates already appointed. We are
D not so much on the question whether the writ petitioners were legally bound
to implead all the candidates selected/appointed during the pendency of the
petitions having regard to the fact that they were challenging the notification
or the policy decision of general application; but, we are taking this fact into
consideration to lean towards the view of the High Court that its judgment
ought to be applied prospectively, even if the non-impleadment is not a fatal
E flaw.

Prospectivity to what extent i~ the next question. Counsel argues that
when once it is accepted in principle that past actions should not be unsettled,
there is no rationale in prescribing a cut off date with reference to the date
F of judgment, so as to save the appointments already made and to bar the
appointments to be made. It is contended that the entire selection process and
the consequential appointments should be out of clutches of the judgment
rendered on 18.11.99 and it would be more rational and logical to apply it
to further selections. The fortuitous circumstance of not being in a position
of securing appointment orders for a variety of administrative reasons should
G not stand in the way of candidates appointed or to be appointed after the date
of judgment; otherwise, it would result in injustice and hardship to the selected
candidates without any tangible benefit to the petitioners who moved the
High Court for relief. It is pointed out that in some districts like Chittorgarh,
Lok Sabha election programme came in the way of formal appointments
H orders being issued. It is further pointed out that in any case, if the judgment
KAILASH CHAND SHARMA v. STATE [P. VENKATARAMA REDD!, J.)349

is to be prospectively applied - as it ought to be, the application of judgment A
should be from the date of its pronouncement i.e. 18.11.1999 but not from
21.10.99 which is the date of decision in Deepak Kumar's case pertaining to
a different selection held five years earlier.

The above argument was countered by the learned counsel appearing
for the original writ petitioners contending· that after the judgment of the B
High Court in Deepak Kumar's case (21. 10.1999 is the date of judgment) in
which similar provision in another circular was struck down, there was neither
legal nor moral justification for making further appointments, though the
impugned judgment in Kailash Chand, was rendered on 18.11.1999. In the
first SLP filed by Kailash Chand, the senior counsel Mr. Krishnarnani raised C
a subsidiary contention that the High Court was wrong in proceeding on the
assumption that his client and other similarly situated petitioners would not
have got selected even if the bonus marks were ignored. In the SLP, the said
petitioner furnished the particulars relating to marks secured by him and
some other selected candidates. Quite rightly, the learned counsel contended D
that the High Court apparently could not have looked into the particulars of
marks in each and every case and it would have been in the fitness of things
if it were left to the concerned authorities to go into the factual details.

One more point which need mention. Some of the learned counsel
argued that the unsuccessful applicants should not be allowed to challenge E
the selection process to the extent it goes against their interest, after having
participated in the selection and waited for the result. It is contended that the
discretionary relief under Article 226 should not be granted to such persons.
Reliance has been placed on the decision of this Court in Madan Lal v. State
of J & K, [1995) 3 SCC 486 and other cases in support of this argument. On F
the other hand, it is contended that in a case of challenge to unconstitutional
discrimination, the doctrine of acquiescence, estoppel and the like does not
apply and the writ petitioners cannot be expected to know the constitutional
implications of the impugned circular well before the selections. We are not
inclined to go into this question for the reason that such a plea was not raised
nor any argument was advanced before the High Court. G

Having due regard to the rival contentions adverted to above and keeping
in view the factual scenario and the need to balance the competing claims in
the light of acceptance of prospective overruling in principle, we consider it
just and proper to confine the relief only to the petitioners who moved the H
350 SUPREME COURT REPORTS [2002) SUPP. I S.C.R.

A High Court and to make appointments made on or after 18.11.1999 in any
of the districts subject to the claims of the petitioners. Accordingly, we direct:

I. The claims of the writ petitioners should be considered afresh in
the light of this judgment vis a vis the candidates appointed on
or after 18.11.99 or those in the select list who are yet to be
B appointed. On such consideration, if those writ petitioners are
found to have superior merit in case the bonus marks of I 0%
and/or 5% are excluded, they should be offered appointments, if
necessary, by displacing the candidates appointed on or after
18.11.1999.
c 2. The appointments made upto 17 .11.1999 need not be reopened
and re-considered in the light of the law laid down in this
judgment.

3. Writ Petition No. 542/2000 filed in this Court under Article 32
D is hereby dismissed as it was filed nearly one year after the
judgment of the High Court and no explanation has been tendered
for not approaching the High Court under Article 226 at an
earlier point of time. '
Before parting, we must say that we have moulded the relief as above
E on a consideration of special facts and circumstances of this case acting
within the frame-work of powers vested in this Court under Article 142 of
the Constitution. In so far as the relief has been granted or modified in the
manner aforesaid, this judgment may not be treated as a binding precedent
in any case that may arise in future.
F
Another parting observation. While we realize the need to generate
better employment opportunities to the people of rural backward areas and an
affirmative action in this regard is not ruled out, any such action should be
within the framework of constitutional provisions relating to equality.
G Equalising unequals by taking note of their handicaps and limitations is not
impermissible under the Constitution provided that it seeks to achieve the
goal of promoting overall equality. However, measures taken by the State on
considerations of localism are not sanctioned by the constitutional mandate
of equality. As indicated in the judgment, any attempt at giving weightage to
the rural candidates should be backed up by scientific study and considerations
H germane to constitutional guarantee of equality.
D.P. NANJJAPPA v. S.A. RAMAPPA [PHUKAN, !.) 351

The appeals arising out of the SLPs are disposed of accordingly. The· A
impugned judgments of the High Court stand modified to that extent. The
writ petition mentioned above is dismissed. There shall be no order as to
costs.

K.K.T. Appeals disposed of and Petition dismissed.
B

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