M.S. RAMACHANDRA RAO, J.

1. No written statement is filed by the State as on date. Time is sought to file the same by the learned Advocate General.

2. Counsel for petitioner shall implead the Chief Secretary of the State of Haryana as party respondent.

3. Written statement filed on behalf of respondents No.2 to 5 has been filed in the Court today, the same is taken on record.

4. Since the grievance of the petitioner is against the action of respondent no.2 to 5 and since the last date for online submission of applications is 23-1-2023, we are considering the submissions of the parties and considering grant of interim relief.

5. The petitioner claims that he is eligible to apply for the post of Assistant Engineer (Electrical Cadre) and intends to apply for the said posts mentioned in the advertisement dt.20.12.2022 issued by respondents No.2 to 5 and is challenging the selection criteria to a limited extent in this Writ Petition.

6. In this Writ Petition, he has sought for quashing of advertisement dt.20.12.2022 issued by respondents No.2 to 5 for filling up of posts, inter alia, of Assistant Engineers (Electrical Cadre) in the Electrical Discipline, as well as Regulation 11(i) of DHBVNL Service of Engineers (Electrical) Regulations,2020, applicable to DHBVNL (respondent no.3) , other similar amendment dt.9.10.2020 made in PSEB Service of Engineers (Electrical) Regulations,1965 as applicable to HVPNL (respondent No.4), Regulation 10(ii) of HPGCL Service of Engineers (Electrical) Regulations,2022 applicable to HPGCL (respondent No.5) and any such/similar amendment made in the relevant regulations applicable to UHBVNL ( respondent no.2) to the extent that in the Scheme of Marks, 20 marks out of 100 have been earmarked for the “Socio-Economic criteria and Experience”, by making them inter alia dependent on descent or the Domicile of the State of Haryana.

7. In the Advertisement, the said provision is contained in Para 13(iv)(2) and states as under:-

“13 (iv). The scheme of marks in respect of selection to Assistant Engineer ( Group B) post shall comprise of total 100 marks, which is detailed below:

1.Weightage of GATE Exam 80 marks[ The normalized GATE marks ( out of 100) would be converted/scaled out of 80 marks by multiplying with 0.8]

2. Socio-economic criteria and Experience: 20 marks

The marks for experience and some objective socioeconomic criteria are to be allocated as follows:-

(a) If neither the applicant nor any person from among the applicant's family viz. father, mother, spouse, brother, and Son is, was or has been a regular employee in any DepartmentBoard/Corporation/Company/Statutory Body/Commission/Authority of Government of Haryana or any other State Government or Government of India.

(10 marks)

(b) If the applicant is.-

a. a Widow; or

b. the first or the second child and his father had died before attaining the age of 423 years; or

c. the first or the second child and his father had died before the applicant had attained the age of 15 years.

(10 marks)

(c) If the applicant belongs to such a denotified tribe (VimuktJatis and TapriwasJatis) or Nomadic tribe of the State of Haryana which is neither a ScheduledCaste nor a Backward Class.

(10 marks)

(d) Experience: One mark for each year or part thereof exceeding six months of experience, out of a maximum of sixteen years, on the same or a higher post in any Department/ Board/ Corporation/ Company/ Statutory Body/ Commission/ Authority of Government of Haryana. No marks shall be awarded for any period less than six months.

(Maximum of 16 marks)

Note: No applicant shall be given more than 20 marks for Socio-economic criteria and Experience under any circumstances."

8. Contentions of counsel for petitioner

9. Counsel for the petitioner interaliacontends that para 5 (i) makes it clear that “Reservation/Relaxation/Concession, wherever applicable , are applicable to Haryana domicile candidates only, subject to reservation policy.” and thus Concession of extra 20 marks for “Socioeconomic criteria and experience” contained in para 13(iv) (2) is available to applicants of Haryana Domicile only and not persons having domicile other than the State of Haryana.

10. Counsel for the petitioner further contends:

"(i) That grant of such additional marks under the Socio-Economic Criteria and Experience is nothing but a form of reservation;

(ii) That Clause (a) of the Sub-Para 2 of para 13 (iv) of the said advertisement dealing with “socio-economic criteria and experience” provides 10 marks to an applicant if his/her father, mother, spouse, brother and son was not a regular employee in any Department/Board/Corporation/Company / Statutory Body/Commission/ Authority of Government of Haryana or any State Government or Government of India; that it thus disqualifies an applicant if a relative including a parent was a regular employee in any Department / Board / Corporation / Company / Statutory Body / Commission / Authority of Government of Haryana or any State Government or Government of India even if he has high merit; by granting such marks/preferential treatment, a class has been created based on family background simpliciter; that it has no rational nexus to the objective sought to be achieved; and thus it is violative of Art.14 and 16 of the Constitution of India.

(iii) that Clause (b) of the sub para 2 of para 13 (iv) of the said advertisement dealing with “socio-economic criteria and experience” gives 10 extra marks to a Widow or the first or second child whose father had died before attaining the age of 42 years or the first or the second child whose father had died before the applicant had attained the age of 15 years; thus the benefit is linked to the death of the father; that this benefit isalso confined only to the Haryana Domicile candidates; andis so violative ofArticle 16(2) of the Constitution of India as it gives preference in public appointment on the basis of decent, place of birth and residence.

(iv) that Clause (c) of sub para 2 of para 13 (iv) of the said advertisement dealing with “socio-economic criteria and experience” gives the benefit of 10 marks to applicant belonging to denotified tribe ( VimuktJatis and TapriwasJatis) or Nomadic Tribe of the State of Haryana which is neither a Scheduled Caste nor a Backward Class; that in the absence of the notification under the Constitution Scheduled Tribes (Order),1950, no class of persons can be treated as a Tribe, and conferred the benefit of the 10 marks, and this also violates Articles 14 and 16 of the Constitution of India.

(v) That Clause (d) of sub para 2 which gives upto 16 marks @ one mark for each year or part thereof exceeding 6 months of experience in the same or higher post in any Department/Board/ Corporation/Company/Statutory Body/Commission/Authority of the Government of Haryana, that this Clause also restricts the benefits only to persons who have served in the Government of Haryana or it’s agencies and so it violates Articles 14 and 16 of the Constitution of India."

11. Counsel for the petitioner placed reliance on the decisions of the Supreme Court in (i) Kailash Chand Sharma Vs.State of Rajasthan 2002 (6) SCC 562 , (ii) [LQ/SC/2002/734] V.N. Sunanda Reddy Vs.State of Andhra Pradesh 1995 Supp. (2) SCC 235 , (iii) [LQ/SC/1995/150] Telangana Judges Association and Another Vs.Union of India and others (2019) 18 SCC 769 [LQ/SC/2018/1278] and (iv)State of TelanganaVs.B. Subba Rayudu SLP No.156566 of 2021 dt. 14.09.2022 to contend that the marks earmarked for socio-economic criteria and experience in the impugned advertisement cannot be sustained since they are to be given only to applicants having Haryana Domicile and also on basis of descent.

12. Contentions of the respondents

13. Learned State Counsel however refuted the said contentions and contended that 20 marks in respect of “socio economic criteria and experience” have been earmarked in the impugned advertisement since various requests were received from the candidates who had applied in earlier recruitment of Assistant Engineers through GATE-2019 which was cancelled through Public Notice dt.04.10.2019 for considering them also in the present recruitment process; to give fair and equal chance to those candidates who had applied in earlier advertisement of GATE-2019, it was proposed to consider the GATE-19 result and socio economic criteria and experience also as a special case and one time measure in addition to requirement of GATE-2020 result in the present recruitment.

14. It is also sought to be contended that weightage of marks is being given not only on the ground of Domicile.

15. Reliance is placed on the judgment of the Division Bench of this Court in the case of Deepak Kumar Verma Vs. State of Haryana and Others CWP No.10792 of 2018 (PHHC) and other connected cases.

16. It is also stated that the advertisement was issued on the basis of the selection criteria approved by the Government of Haryana, and it is denied that there is any illegality done by respondents No.2 to 5 in advertising 143 posts of Assistant Engineers (Electrical, Mechanical and Civil) vide the impugned advertisement dt.20.12.2022 for selection on the basis of weightage of 80 marks in GATE-2020 result, 20 marks of “socio economic criteria and experience”.

17. Consideration by the Court

18. We have noted the contention of both the sides.

19. A reading of para 5(i) r/w Para 13(2) (iv) of the advertisement makes it prima facie evident that only to Haryana Domicile residents or on basis of descent the benefits of the concession of 20 marks is being given in the impugned advertisement.

20. In the case of State of Telangana (4 Supra), the Supreme Court held that under the Constitution of India, India is a Union of States; every part of every State is an integral and inseverable part of India;. admittedly, the Respondent was born in India and has his domicile in the territory of India; as held by this Court in Dr. Pradeep Jain v. Union of India AIR 1984 SC 1420 [LQ/SC/1984/157] , under the Indian Constitution, there is only one domicile i.e. domicile of the country and there is no separate domicile for a State.It also held that a citizen of Indiahasa fundamental right under Article 19(1)(e) to reside and settle in any part ofthe territory of India; and Article 13 (2) of the Constitution of India prohibits the State from making any law which takes away or infringes the rights conferred by Part III of the Constitution of India and any law made in contravention of Article 13(2), to the extent of the contravention would be void. It also held that all statutes and all rules, regulations and bye-laws framed by the Government, which constitute law have to be construed harmoniously with the fundamental rights guaranteed under Part-III of the Constitution of India.

21. In the case of Telangana Judges Association and Another (Supra 3), the Supreme Court has held that the nativity for public employment runs counter to the fundamental right guaranteed under Article 16(2) except when it is provided by a Parliamentary Law as per exception carved out in Article 16(3) of the Constitution of India.

22. In the case of Kailash Chand Sharma (Supra 1), the Supreme Court held that residence by itself be it be 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 rejected the contention that residence within a district or rural areas of that district could be a valid basis for classification for the purpose of public employment and held 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).It also followed the decision Pradeep Jain(Supra 6) where the Supreme Court had held that Art 16 (2) 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; that so far as employment 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; and that residential requirement would be unconstitutional as a condition of eligibility for employment or appointment to an office under the State.

23. In the case of V.N. Sunanda Reddy (Supra 2), the Supreme Court has held that the provision for weightage of marks to candidates with a particular language as a medium education for recruitment to certain posts in Government is violative of Article 14 and 16 of the Constitution of India. It held that for appointing persons to posts in public services through direct recruitment, the criterion has to be pure merit. Therefore, all candidates who possess minimum educational qualification have to be assessed on the basis of their relative merits. At the stage of assessment, if 5% more marks on the aggregate are added in the assessment of candidates who have passed minimum educational qualification through Telugu medium, the very criterion of relative merit would get frustrated and would become otiose.It held that Article 14 and 16 of the Constitution of India ensures equality to all those who are similarly situated, and all the citizens applying for employment under the State are entitled to be treated alike.

24. Having regard to the principles of law laid down by the Supreme Court in the aforesaid cases cited by the counsel for the petitioner, weprima facie agree with the contentions of the petitionerthat confining of the benefit of Socio Economic criteria and awarding 20 marks therefor on basis of descent or domicile in the State of Haryana is violative of Article 16(2) of the Constitution of India.

25. We are also of the view of the decision of the Deepak Kumar Verma (5 Supra) cited by the learned State Counsel is distinguishable because in that case, the benefit of concession was not limited to persons who are the Domicile of the State of Haryana unlike in the instant case.

26. Therefore, the Clause in the impugned advertisement dt. 20.12.2022 dealing with “socio economic criteria and experience” and providing 20 marks to Haryana domicile applicants or on basis of descent contained in Para 13(iv)(2) is suspended until further orders.

27. Adjourned to 24.07.2023.