1. Since the issues involved in the instant batch of writ petitions are identical, the same were heard together and are being disposed of by this common order.

Prayer made in the writ petitions:

2. These writ petitions have been filed, under Article 226 of the Constitution of India, for the following reliefs:

"(a).To hold and declare the Jharkhand Staff Selection Commission Examination (Graduate Level) Conduct (Amendment) Rules, 2021, as notified and published by the respondents vide the gazette notifications as contained in memo no. 3849 dated 10.08.2021, particularly Rule 2 and 7 as arbitrary, irrational and ultra vires to the provisions of the Constitution of India for abridging the fundamental rights of the aspiring candidates including the petitioners as guaranteed under Article 14 and 16 of the Constitution of India.

(b).To quash and set aside the amendment brought in Rule 5(ii) of Rules, 2015, vide Rule 2 of Rules, 2021, and amendment brought in Rule 10 (2016)

vide Rule 7 of Rules, 2021 through Gazettee Notification as contained in memo no. 3849 dated 10.08.2021 on the ground of being discriminatory, arbitrary and having no reasonable nexus with the object and thereby violative of Article 14 and 16 of the Constitution of India.

(c).The petitioners further pray for a declaration that the respondent State Government cannot put such residential conditions or conditions based on geographical requirement of acquiring of qualification from State institutions from the candidates/aspirants of public employment in the State unless a parliamentary enactments is in place.

(d).The petitioners further pray for quashing of the advertisements which has been published by the respondent JSSC after coming into force of Rules, 2021, for appointments on various posts of Assistant Section Officer, Junior Secretariat Assistant, Block Supply Officer, Planning Assistant etc. and other similar advertisements issued by the respondent JSSC for appointment on other vacancies of various other posts wherein the aforesaid impugned conditions have been incorporated/included which has debarred the petitioners from participating in the recruitment process only on account that they are not pass-out 10th and 12th examination from the State institutions AND upon quashing the advertisement/s the respondents may be directed to issue fresh advertisements by way of deleting the impugned conditions so that the petitioners and likewise other candidates may have opportunity to participate in the recruitment process."

However, writ petition being, W.P. (C) No. 3894 of 2021, has been filed for seeking similar direction but no direction has been sought for quashing of any advertisement issued for the appointment on Class Group C/Class II posts in the State of Jharkhand, however, later on by of filing supplementary affidavit the advertisements have been brought on record.

Brief facts of the case:

3. The brief facts of the case, as per the pleadings made in the writ petitions, read as under:

(I).The State of Jharkhand has come out with a notification, published vide Gazette Notification dated 05.12.2008 by the Law (Legislation) Department, namely, Jharkhand Staff Selection Commission Act, 2008 (hereinafter referred to as ‘Act, 2008’) with an object to bring uniformity in the process of selection of technical and non-technical class III (Group C) posts under the administrative control of the Government of Jharkhand, since, the number of candidates appearing for the competitive examination has remarkably been increased and as such the responsibility upon the Jharkhand Public Service Commission has also increased and hence decision has been taken to create separate Commission so that the recruitment of Group C posts be conducted on the basis of recommendation of such Commission.

The very purpose and underlying philosophy of the Act, 2008 would be evident from the preamble of the Act, 2008, which reads as under:

Preamble

As there has been a large scale increase in the number of candidates appearing for competitive examinations and the responsibilities of Jharkhand Public Service Commission have increased manifold. Therefore it has been considered as expedient to constitute a separate Commission namely “Jharkhand Staff Selection Commission” to take over the responsibility or recruitment of group C posts under the State Government, Corporations, Boards, Authorities and Other Agencies of the State Government;

And, as the Fitment Committee in its report (Vol. IV, Book-2) under chapter-7, Para-7.3-1313 [d] has given its recommendation to consider the probability of constitution of a Commission like Staff Selection Commission.

And, as in these circumstances, it is appropriate to regulate an Ant for the constitution of Jharkhand Staff Selection Commission to bring uniformity in the selection procedure for the appointment of eligible candidates to the post of Class-3.

Now, therefore, be it enacted by the Legislature of the State of Jharkhand in the Fifty ninth year of the Republic of India as follows:”

The Act, 2008 contains a provision, as under Section 12, under the caption ‘Power to Formulate Rules, which reads as under:

“12.POWER TO FORMULATE RULE:

(i).The State Government shall have the power to make Rules for the implementation of provisions of this Act. (ii).The Commission shall have the powers to frame Regulations, with the approval of the State Government, for the conduct and other work of the advertisement, conduct of written examination, publication of results, personality Tests/Interviews, if any.”

(II).Pursuant thereto, the Personnel, Administrative Reforms and Rajbhasha Department, in exercise of power conferred under Section 12 (1) of the Act, 2008, has formulated Rules, vide Notification No. 10507 dated 11.12.2015, namely, ‘Jharkhand Staff Selection Commission (Graduate Level) Conduct Rules, 2015 (hereinafter referred to as ‘Rules, 2015’) which contains a provision under Rule 5 - the eligibility criteria, wherein it has been stipulated as under:

5.Fixation of Eligibility/Qualification:-

(I).The age of the candidates shall be calculated on the first day of August of the year of requisition.

(II).Candidates shall have to obtain the requisite educational qualification till the last date of submission of application form.

Rule 8 of Rules, 2015 speaks about description of examination stating that the examination shall generally be conducted in two stages: (a).Preliminary Examination and (b).Mains Examination of multiple chose questions.

Rule 9 of the Rules, 2015 deals with description and syllabus of Preliminary Test which will contain 150 questions of one Paper.

Likewise, Rule 10 of Rules, 2015 deals with description and syllabus of Mains Examination, which consists of two papers – Paper-1 and Paper-2. Each paper shall have 150 questions. Paper-1 pertains to knowledge of Hindi Language and English Language, 75 questions each. Paper-2 consists of (a).General Study (40 questions), General Science (20 questions), General Math (20 questions), Mental Ability Test (20 questions), Computer Knowledge (20 questions) and General Knowledge related to State of Jharkhand (30 questions) in total 150 questions. On the note, it has been stipulated that minimum qualifying marks for Paper-1 shall be 40% and those candidates who will secure less than minimum qualifying marks shall be declared unsuccessful. Paper-2 will have no qualifying marks. On getting minimum qualifying marks in Paper- 1, merit list shall be prepared on the basis of marks obtained in Paper-1 and Paper-2.

(III).The Rules, 2015 has been modified by way of substitution, by virtue of notification dated 18.04.2016, in exercise of power conferred under Rule 15 of the Rules, 2015, to the Rule 9 and 10 of the Rules, 2015, which relates to Preliminary and Mains Examination respectively.

Under Rule 9-Preliminary Examination, the total question has been reduced to 120 from 150.

Rule 10, which speaks about Main Examination, says that now it will consists of three papers. In Paper-I (Language Proficiency), 30 % marks have been fixed as the minimum qualifying marks and it has been decided that it will be of qualifying in nature. Paper-2 reflects that the candidates have been given option to chose any language of their choice from Hindi/English/Urdu/Santhali/Bangla/Mundari/Ho/ Khariya/Kundukh(Uraon)/Kurmali/Khortha/Nagpuri/ Panchparganeya/Uriya, which will consists of 100 multiple choice questions. Paper-3 consists of 120 questions related to General Study (30 questions), General Knowledge related to State of Jharkhand (40 marks), General Science (20 marks), General Math (10 marks), Mental Ability Test (10 marks) and Computer Knowledge (10 marks).

(IV).Rules, 2015 (Amended Rules, 2016) has further been amended in exercise of power conferred under Rule 12(1) of the Act, 2008, vide notification dated 10.08.2021, which is known as ‘Jharkhand Staff Selection Commission (Graduate Level) Conduct (Amendment) Rules, 2021 (hereinafter referred to as ‘Rules, 2021’).

The petitioners herein are aggrieved with Rule 2 of the Rules, 2021 pertaining to amendments made in Rule 5(ii) of the Rules, 2015 (Amended Rules, 2016) and Rule 7 of the Rules, 2021 pertaining to amendments made in Rule 10 of Rules, 2015.

For ready reference, the amendment by way of substitution so done under Rule 5(ii) and 10 of the Rules, 2015 (Amended Rules, 2016) under Rules 2 and 7 respectively of the Rules, 2021 are quoted hereunder as:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

It is evident that by virtue of Rules, 2021 under Rule 2, the eligibility criteria has been modified to the extent that candidates have to pass graduation or equivalent examination till the last date of submission of application form. Apart from that the candidate has to pass the Matriculation/10th Class and Intermediate/10+2 Class from the recognized educational institution situated in the State of Jharkhand. But the said rule related to passing of Matriculation/10th Class and Intermediate/10+2 Class from the recognized educational institution situated in the State of Jharkhand has been relaxed for the candidates who are covered under the reservation policy of the State of Jharkhand.

Rule 10 of the Rules, 2015 (Amended Rules, 2016) has been modified by way of substitution under Rule 7 of the Rules, 2021, whereby and whereunder Hindi and English language has been deleted from paper-2 and rest 12 regional/tribal language has been earmarked for examination i.e., Urdu/ Santhali/ Bangla/ Mundari (Munda)/ Ho/ Khariya/ Kundukh (Uraon)/Kurmali/Khortha/Nagpuri/Panchparganeya/ Uriya .

(V).The case of the petitioners are that they mostly have passed the Matriculation/10th Class and Intermediate/10+2 Class from the recognized educational institutions situated outside the State of Jharkhand, therefore, after coming into effect of Rules, 2021 in particular Rule 2 of Rules, 2021 [amended Rule of 5(ii) of the Rules, 2015 (amended Rule 2016)] and Rule 7 of Rules, 2021 [amended Rule 10 of the Rules, 2015 (amended Rules, 2016)], they have lost their chance of participation in the process of selection in the Combined Graduate Level Examination conducted by the Commission. Therefore, the condition imposed by way of Rule 2 of Rules, 2021 has been challenged stating it to be arbitrary by which, petitioners have been deprived of their chance for consideration for selection to different posts of Graduate Level Examination to be conducted by Commission.

Further, Hindi/English speaking/knowing candidates have also become aggrieved due to deletion of Hindi/English from the syllabus of Paper-2 while retaining other regional languages in the Syllabus of Paper-2.

(VI).In the aforesaid backdrop, these writ petitions have been filed invoking the jurisdiction of this Court conferred under Article 226 of the Constitution of India for holding the provisions of impugned rules to be invalid and being in the teeth of Articles 14 and 16 of the Constitution of India.

(VII).The writ petitioners have also sought for consequential relief for quashing of the advertisements and the consequential steps for filling up the posts and to advertise the vacancies afresh so that they may be able to participate in the process of selection. (VIII).However, writ petition, being W.P. (S) No. 3894 of 2021 has been filed wherein prayer has been made only to declare the impugned rules to be invalid but there is no consequential reliefs sought for since no advertisement, published by the Jharkhand Staff Selection Commission, is under challenge.

Maintainability of W.P.(C) No. 3894 of 2021:

4. At the outset, the respondents, apart from raising legal issues, have raised preliminary objection regarding maintainability of the writ petition being W.P.(C) No. 3894 of 2021 wherein according to the State of Jharkhand there is no cause of action since the writ petitioners in the aforesaid writ petition have not stated that how the impugned amendments incorporated in Rules, 2021 has given cause of action to challenge the same before this Court by invoking the jurisdiction of this Court conferred under Article 226 of the Constitution of India.

5. In view of the objection, having been raised by the respondents, on the maintainability of writ petition being W.P. (C) No. 3894 of 2021, the issue of maintainability is required to be adjudicated first so that the validity of Rules, 2021 as questioned in all the writ petitions be dealt with together and answered.

Therefore, the Court is proceeding to first examine the issue of maintainability of the writ petition being W.P. (S) No. 3894 of 2021.

6. Learned counsel for the respondents has contended that merely because legislation has been passed it does not give ipso facto a cause of action to assail the legislation before the Court of law unless the parties are able to satisfy the Court that by the legislation chance of consideration of their case have been deprived or taken away. Here, as would appear from the pleading made in the writ petition no advertisement is under challenge meaning thereby the writ petitioners have not yet made application and as such there is no question of depriving their chance for consideration and as such, no cause of action arose to challenge the legislation in question.

Hence, submission has been made that the aforesaid writ petition is fit to be dismissed on the ground of maintainability due to lack of cause of action.

Learned senior counsel, in order to fortify his argument, has relied upon the judgment rendered in Kusum Ingots & Alloys Ltd. Vs. Union of India & Anr. [(2004) 6SCC 254.

7. Learned senior counsel appearing for the petitioners, in W.P.(C) No. 3894 of 2021, has submitted that it is incorrect to say on the part of respondents- State that the legislation can only be challenged when the party concerned is being deprived from the chance of consideration rather the moment the legislation is being enacted or legislated causing any injury to any citizen, the same is required to be protected before causing any injury or infringement of fundamental right as guaranteed under Part III of the Constitution of India, a citizen will have right to invoke the jurisdiction of this Court for protecting fundamental right.

It has been contended that the rule has been brought into force by depriving the petitioners from participating in the process of selection since they have done Matriculation/10th examination and Intermediate/10+2 examination from the institutions outside the State of Jharkhand and as such the writ petitioners, immediately after notification of the Rules, 2021, have filed the writ petition for protection of their fundamental right. Therefore, submission has been made that writ petitioners have valid cause of action.

The learned senior counsel in order to buttress his argument has relied upon the judgment rendered in S.M.D. Kiran Pasha Vs. Government of Andhra Pradesh & Ors [(1990) 1 SCC 328] [LQ/SC/1989/559] .

8. This Court, after having considered the rival submissions advanced on behalf of parties on the issue of maintainability, has considered the prayer and pleading made in the writ petition and found therefrom that the writ petition has been filed challenging the validity of Rule 5 (ii) and 10 of the Rules, 2015 (amended Rules, 2016) by way of its substitution as under Rule 2 and 7 of the Rules, 2021.

Objection has been raised that since the writ petitioners have not pleaded how this impugned legislation has deprived them leading to infringement of fundamental right as guaranteed under Article 14 and 16 of the Constitution of India, the writ petition is not maintainable.

9. We have considered the judgment rendered in Kusum Ingots & Alloys Ltd. Vs. Union of India & Anr. (supra), reliance upon which has been placed by learned counsel for the respondents, and found therefrom that the appellant, a company registered under Indian Companies Act having its registered office at Mumbai, got a loan from the State Bank of India, Bhopal Branch. Respondent no. 2 therein issued a notice for repayment of said loan from Bhopal purported to be in terms of provisions of Securities and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘SARFAESI Act, 2002’). Questioning the vires of the said Act, a writ petition was filed before the Delhi High Court by the appellant, which was dismissed on the ground of lack of territorial jurisdiction.

The Hon’ble Apex Court while dealing with the issue in the aforesaid background, as to whether any cause of action has arisen within the territorial jurisdiction of the territory of High Court of Delhi, has been pleased to hold therein, taking into consideration the provision as contained under Clause 2 of Article 226 of the Constitution of India, that passing of a legislation by itself does not confer such right to file a writ petition unless a cause of action arises therefor.

The Hon’ble Apex Court held that the distinction between legislation and executive action should be borne in mind while determining the said question. A parliamentary legislation when it receives the ascent of the President of India and is published in official gazette, unless specifically excluded, will apply to the entire territory of India. If passing of legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country. It is not so done because if cause of action will arise only when the provision of the Act or some of them were implemented shall give rise to civil or evil consequences to the petitioner. A writ Court, it is well settled would not determine a constitutional question in a vacuum.

Relevant paragraph of the said judgment as under paragraph nos. 18, 19, 20, 21 reads as under:

“18. The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court.

19. Passing of a legislation by itself in our opinion does not confer any such right to file a writ petition unless a cause of action arises therefor.

20. A distinction between a legislation and executive action should be borne in mind while determining the said question.

21. A parliamentary legislation when it receives the assent of the President of India and is published in the Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country. It is not so done because a cause of action will arise only when the provisions of the Act or some of them which were implemented shall give rise to civil or evil consequences to the petitioner. A writ court, it is well settled, would not determine a constitutional question in a vacuum.”

It is evident that in the fact where ‘SARFAESI Act, 2002’ has been challenged before Delhi High Court even though the appellant of the said case took loan from the State Bank of India of its branch at Bhopal. In that pretext, the Hon’ble Apex Court has laid down the principle that merely passing of a legislation does not give any cause of action to the writ petitioner questioning the constitutionality, since a cause of action will arise only when the provision of the Act or some of them which are implemented shall give rise to civil or evil consequences to the petitioner.

10. Herein, in the given facts of the case, the position is quite different since the writ petitioners are residents of the State of Jharkhand and the civil or evil consequences has already arisen contrary to the interest of the petitioners, since they have obtained certificate of Matriculation/10th and Intermediate/10+2 Examination from the institutions situated outside the State of Jharkhand and as such by virtue of aforesaid Rule having been brought in force, the petitioners are now not in position to even fill up the application form. The consequence is that they have been deprived from consideration of their chance to participate in the process of selection to be appointed in Group C posts in different departments of the State of Jharkhand.

The reference of the judgment rendered by Hon’ble Apex Court in S.M.D. Kiran Pasha Vs. Government of Andhra Pradesh & Ors. (supra), reliance upon which has been placed by learned counsel for the petitioners, is also required to be made wherein it has been laid down as under paragraph 14 that the right to life and personal liberty has been guaranteed as a fundamental right and for its enforcement one could resort to Article 226 of the Constitution for issuance of appropriate writ, order or direction. Answering the question that precisely at what stage resort to Article 226 has been envisaged in the Constitution, it has been held that when a right is so guaranteed, it has to be understood in relation to its orbit and its infringement. Conferring the right to life and liberty imposes a corresponding duty on the rest of the society, including the State, to observe that right, that is to say, not to act or do anything which would amount to infringement of that right, except in accordance with the procedure prescribed by law. In other words, conferring the right on a citizen involves the compulsion on the rest of the society, including the State, not to infringe that right.

11. The issue that at what stage the right can be enforced and does a citizen have to wait till the right is infringed, in this regard, the Hon’ble Apex Court has laid down difference in between two situations i.e., the ‘pre-violation protection’ and ‘post-violation remedy’ holding that if a threatened invasion of a right is removed by restraining the potential violator from taking any steps towards violation, the rights remain protected and the compulsion against its violation is enforced. If the right has already been violated, what is left is the remedy against such violation and for restoration of the right. Thus, resort to Article 226 after the right to personal liberty is already violated is different from the pre-violation protection.

For ready reference paragraph 14 of the judgment rendered in S.M.D. Kiran Pasha (supra) is quoted hereunder as:

“14. Article 226(1) of the Constitution of India notwithstanding anything in Article 32, empowers the High Court throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any government within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose; and it also envisages making of interim orders, whether by way of injunction or stay or in any other manner in such a proceeding. Article 21 giving protection of life and personal liberty provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. For enforcement of one's right to life and personal liberty resort to Article 226(1) has thus been provided for. What is the ambit of enforcement of the right The word ‘enforcement’ has also been used in Article 32 of the Constitution which provides the remedy for enforcement of rights conferred by Part III of the Constitution. The word ‘enforcement’ has not been defined by the Constitution. According to Collins English Dictionary to enforce means to ensure observance of or obedience to a law, decision etc. Enforcement, according to Webster's Comprehensive Dictionary, means the act of enforcing, or the state of being enforced, compulsory execution; compulsion. Enforce means to compel obedience to laws; to compel performance, obedience by physical or moral force. If enforcement means to impose or compel obedience to law or to compel observance of law, we have to see what it does precisely mean. The right to life and personal liberty has been guaranteed as a fundamental right and for its enforcement one could resort to Article 226 of the Constitution for issuance of appropriate writ, order or direction. Precisely at what stage resort to Article 226 has been envisaged in the Constitution When a right is so guaranteed, it has to be understood in relation to its orbit and its infringement. Conferring the right to life and liberty imposes a corresponding duty on the rest of the society, including the State, to observe that right, that is to say, not to act or do anything which would amount to infringement of that right, except in accordance with the procedure prescribed by law. In other words, conferring the right on a citizen involves the compulsion on the rest of the society, including the State, not to infringe that right. The question is at what stage the right can be enforced Does a citizen have to wait till the right is infringed Is there no way of enforcement of the right before it is actually infringed Can the obligation or compulsion on the part of the State to observe the right be made effective only after the right is violated or in other words can there be enforcement of a right to life and personal liberty before it is actually infringed What remedy will be left to a person when his right to life is violated When a right is yet to be violated, but is threatened with violation can the citizen move the court for protection of the right The protection of the right is to be distinguished from its restoration or remedy after violation. When right to personal liberty is guaranteed and the rest of the society, including the State, is compelled or obligated not to violate that right, and if someone has threatened to violate it or its violation is imminent, and the person whose right is so threatened or its violation so imminent resorts to Article 226 of the Constitution, could not the court protect observance of his right by restraining those who threatened to violate it until the court examines the legality of the action Resort to Article 226 after the right to personal liberty is already violated is different from the pre-violation protection. Post-violation resort to Article 226 is for remedy against violation and for restoration of the right, while pre-violation protection is by compelling observance of the obligation or compulsion under law not to infringe the right by all those who are so obligated or compelled. To surrender and apply for a writ of habeas corpus is a post-violation remedy for restoration of the right which is not the same as restraining potential violators in case of threatened violation of the right. The question may arise what precisely may amount to threat or imminence of violation. Law surely cannot take action for internal thoughts but can act only after overt acts. If overt acts towards violation have already been done and the same has come to the knowledge of the person threatened with that violation and he approaches the court under Article 226 giving sufficient particulars of proximate actions as would imminently lead to violation of right, should not the court call upon those alleged to have taken those steps to appear and show cause why they should not be restrained from violating that right Instead of doing so would it be the proper course to be adopted to tell the petitioner that the court cannot take any action towards preventive justice until his right is actually violated whereafter alone he could petition for a writ of habeas corpus In the instant case when the writ petition was pending in court and the appellant's right to personal liberty happened to be violated by taking him into custody in preventive detention, though he was released after four days, but could be taken into custody again, would it be proper for the court to reject the earlier writ petition and tell him that his petition has become infructuous and he had no alternative but to surrender and then petition for a writ of habeas corpus The difference of the two situations, as we have seen, have different legal significance. If a threatened invasion of a right is removed by restraining the potential violator from taking any steps towards violation, the rights remain protected and the compulsion against its violation is enforced. If the right has already been violated, what is left is the remedy against such violation and for restoration of the right.

12. Herein also in the given facts of the case, the writ petitioners have pleaded for violation of Article 14 of the Constitution of India read with Article 16 thereof.

Article 14 since provided under Part III, being a part of fundamental right and when there is any infringement of the fundamental right conferred to any citizen of the country he is to be protected and for that purpose mechanism has been evolved under the Constitution itself by carving out the provision under Article 226 of the Constitution of India.

The moment the fundamental right of the petitioners is infringed by inserting a clause, by which writ petitioners have been deprived from participating in the process of selection the same will be said to have civil or evil consequences to be meted out to the writ petitioners and in that view of the matter and for protecting their fundamental right it is well available for the writ petitioners to avail the remedy available under Article 226 of the Constitution of India. Otherwise, when they will be deprived from such fundamental right, will have to approach the Court of law for restoration of the right. Therefore, in both the grounds i.e., ‘for protection of fundamental right’ and ‘for restoration of the right’, jurisdiction conferred under Article 226 can well be availed.

13. This Court, in view of the discussions made hereinabove, is of the view that merely because the writ petitioners have not challenged the advertisement, it will not be proper to hold that writ petition is not maintainable.

Therefore, according to our considered view, the writ petition being W.P. (C) No. 3894 of 2021 is well maintainable.

Argument of the petitioners on the merit of the issue:

14. Learned senior counsel for the petitioners has assailed the validity of statute, in particular impugned Rules, on the following grounds:

(I).Both the amendments, by way of substitution, are arbitrary and discriminatory and as such the same are in the teeth of Article 14 of the Constitution of India.

By the impugned Rule 2 of Rules, 2021 the candidates of one class has been deprived from zone of consideration for appointment in the Graduate Level Examination to the effect that the candidates who have not passed Matriculation/10th Examination and Intermediate/ 10+2 Examination from the recognized educational institutions of the State of Jharkhand will have no chance for consideration of their candidature, but, such embargo has been relaxed for the candidates who are being benefitted from the reservation policy framed by the State of Jharkhand; and thereby unreasonable classification has been made out by discriminating the petitioners, i.e., classification based upon institutions since the certificate either of the Matriculation/10th and Intermediate/10+2 Examination if obtained by a candidate from the recognized school/college situated within the State of Jharkhand will have chance to participate in the process of selection but such chance is not available to the candidates who have obtained certificate of Matriculation/10th or Intermediate/10+2 Examination from the institutions situated outside the State of Jharkhand.

Likewise, by impugned Rule 7 of Rules, 2021, by which, exclusion of Hindi and English from the syllabus of Paper-2 has been made, is also an example of unreasonable classification since deletion of Hindi/English from the syllabus of Paper-2 is based upon no scientific reason and deletion of these two languages ought not to have been done otherwise candidates having proficiency in Hindi/English subject will be in detrimental situation in comparison to that of the candidates who have proficiency in other regional languages i.e., Urdu, Santhali, Bangla, Mundari, Ho, Khariya, Kundukh, Kurmali, Khortha, Nagpuri, Panchparganeya, Uriya, as mentioned under Rule 7 of Rules, 2021.

(II).Such amendment has been made in exercise of power conferred under Section 12 of the Act, 2008 but it is evident from the provisions of Section 12 of the Act, 2008, under the caption ‘Power to Formulate Rule’, that the State Government shall have the power to make Rule for implementation of the provisions of this Act and, further the Commission shall have the powers to frame Regulation, with the approval of the State Government, for the conduct and other work of the advertisement, conduct of written examination, publication of examination results, personality Tests/ Interview, if any. Therefore, the power has been conferred upon the State Government, under the provisions of Section 12 of the Act, 2008 only to make Rules for implementation of the provisions of this Act, as it would be evident from the preamble of the Act, 2008 and as such Rule can be framed in exercise of power conferred under Section 12 of the Act, 2008 only for the purpose of achieving the responsibility of recruitment of Group C Posts by conducting examinations by the Staff Selection Commission and nothing else.

But herein, exercising the power conferred under Section 12 of the Act, 2008, Rules, 2015 (amended Rules, 2016) has been amended by Rules, 2021, which is absolutely incorrect exercise and has been brought in force in exercise of power which is not for the purpose of making amendment in Rule changing the eligibility conditions.

(III).The impugned amendment of the aforesaid Rules is having no rationale nexus with the object that the government wants to achieve i.e., to get meritorious candidate for smooth functioning of the institutions and as such the consequence is class under class.

The classification of depriving a candidate, who has got certificate of Matriculation/10th or Intermediate/10+2 Examination from the institutions situated outside the State of Jharkhand, is nothing but is a resident based classification, which is prohibited under the mandate of the Constitution. Thus institutional classification is bad in the eye of law.

(IV).So far as deletion of Hindi/English from the syllabus of Paper-2 is concerned, no research has been conducted in this regard since as per Census of 2011 Hindi speaking people in the State of Jharkhand is much in number in comparison to most of other local languages prescribed in Syllabus of paper-2 i.e, Urdu, Santhali, Bangla, Mundari,Ho, Khariya, Kundukh, Kurmali, Khortha, Nagpuri, Panchparganeya, Uriya, but no reason has been assigned that what led the formulator of the Rule to delete Hindi/English from the syllabus of Paper-2.

Therefore, the deletion of Hindi/English is nothing but depriving majority of the candidates, who are Hindi/English speaking candidates, from a fair chance to participate in the process of selection.

Further, keeping the other regional language i.e., Urdu, Santhali, Bangla, Mundari,Ho, Khariya, Kundukh, Kurmali, Khortha, Nagpuri, Panchparganeya, Uriya in syllabus of Paper-2, is absolutely illegal and improper since the candidates opting such languages will be in an advantageous position to fetch higher marks in Paper-2 which will be detrimental to the candidates who are having more proficiency either in English or Hindi and thereby the candidates having Hindi or English in paper-2 will be in disadvantageous position.

(V).It has been contended that discrimination based upon language is not permissible under Constitution of India. Furthermore, the amendment either made under Rule 5 or Rule 10 of Rules, 2015 (amended Rules, 2016) is having no basis since there is no reference in the statute as to what necessitated the State Government for such amendment.

Argument of the respondents on the merit of the issue:

15. The respondents have countered the submissions, advanced by learned counsel for the petitioners, on the following grounds:

(I).The amendment, as has been incorporated under Rule 2 of Rules, 2021, cannot be construed to be an example of unreasonable classification, since, the candidates have not been deprived from participating in the process of selection rather the requirement has been made that a candidate is required to pass from the educational institutions situated within the territory of State of Jharkhand, which does not mean that the candidates have been deprived by putting such condition.

The provision has been made that candidate if wants to participate in the process of selection in that circumstance he will have to pass Matriculation/10th and Intermediate/10+2 Examination from the recognized educational institutions of the State of Jharkhand only for the purpose that educational institutions situated in the State of Jharkhand be given more weightage and the students may not go outside the State for doing Matriculation/10th and Intermediate/10+2.

(II).The amendment so made under Rule 2 of Rules, 2021 cannot be treated to be on the basis of resident or birth and as such it will not hit the provision as contained under Article 16(2) of the Constitution of India since Article 16(2) on the Constitution of India only prescribes the discrimination on the ground of religion, race, caste, sex, descent, place or birth, residence or any of them, but herein no such condition has been mentioned rather the requirement has been made to allow such candidates to participate in the process of selection who have completed their Matriculation/10th and Intermediate/10+2 from the educational institutions situated in the State of Jharkhand.

(III).Such amendment will also not come under the purview of unreasonable classification rather it can be treated to be reasonable classification since the same is only for the purpose of giving impetus to the candidates who have passed Matriculation/10th and Intermediate/10+2 Examination from the educational institutions situated in the State of Jharkhand. (IV).Further, deletion of Hindi/English from the syllabus of Paper-2 cannot be treated to be unreasonable, reason being that the Hindi speaking candidates are in majority in the State of Jharkhand and if Hindi/English subject will be allowed to remain in the Syllabus of Paper-2, the same will seriously cause detriment to the candidates having regional languages i.e., Urdu, Santhali, Bangla, Mundari,Ho, Khariya, Kundukh, Kurmali, Khortha, Nagpuri, Panchparganeya, Uriya.

The State of Jharkhand being a poor State where majority of the people are well versed with the regional language and as such the State Government, in order to encourage the local language within the State of Jharkhand, has taken conscious decision to delete Hindi/English from Paper-2 so that the candidate knowing regional language will have chance of their selection at least in Group-C services of the State of Jharkhand.

The State Government, after taking into consideration, the aforesaid aspect of the matter since has taken conscious decision to delete Hindi/English from Paper-2 the same cannot be said to be discriminatory or unconstitutional.

(V).The deletion of Hindi/English from the syllabus of Paper-2 is also for the purpose of achieving the aim and object of the Constitution of India in view of Article 29(1) of the Constitution of India which provides that any section of the citizen residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

Therefore, if the State Government has come with the conscious decision for deletion of Hindi/English from the syllabus of Paper-2, the same is only for providing protection of interest of minorities so that other regional languages may be conserved.

Discussion and Finding of the Court on merit of the issue:

16. This Court, having heard learned counsel for the parties and considering the rival submissions advanced on behalf of parties as also the written note of argument, is of the view that following issues are required to be answered:-

(I).Whether the requirement made under the amendment by way of substitution in the amended Rule, 2021 as under Rule 2 requiring a candidate to pass Matriculation/10th examination and Intermediate/10+2 examination from the recognized educational institutions situated within the territorial jurisdiction of the State of Jharkhand, while, such condition has been relaxed so far as it relates to the candidates who are under the coverage of the benefit of reservation policy framed by the State of Jharkhand, can be considered to be reasonable classification or unreasonable classification within the meaning of Article 14 of the Constitution of India

(II).Whether such classification based upon the institutions is in consonance with Article 16(2) of the Constitution of India depriving a class of candidates who have done their Matriculation/10th and Intermediate/ 10+2 from the educational institutions situated outside the State of Jharkhand

(III).Whether the deletion of Hindi/English from the syllabus of Paper-2, as under Rule 7 of the Rules, 2021, can be considered to be reasonable exercise of power by the State

(IV).Whether the power exercised by the State Government under Section 12 of the Act, 2008 can be said to be conferment of power upon the State Government to make out a Rule depriving a candidate from participating in the process of selection merely because the candidates have completed their Matriculation/10th examination and Intermediate/10+2 from the educational institutions situated outside the State of Jharkhand while such condition has been relaxed to such candidates who are under the coverage of the benefit of reservation policy framed by the State of Jharkhand

(V).Whether the State Government is not required to conduct research by obtaining data while discriminating on the ground of language, deleting Hindi/English from the syllabus of Paper-2 in the examination conducted by the Commission (VI).Whether the validity of statute or the subordinate legislation can be considered to be proper if not legislated or brought into force without any discussion regarding its object and aim

17. Since all the issues are interlinked, the same are being taken up together.

18. This Court, before delving upon the issues, considers it fit and proper to refer herein that what is the history before the Constitution makers to insert Article 14 and 16 under Chapter III of the Constitution to be treated as fundamental right to the citizen of the country.

In the 17th and 18th Century, a system was prevalent in United States of America, in which, the leaders of the political party considered their prerogative to appoint their faithful followers in public offices and remove those who did not support the parties. The said system was known as ‘Spoil System’, which was derived from the phrase ‘to the victor belong to spoils’ by the New York Senator William L. Marcy but the said system has been treated to be an evil and as such efforts have been taken to avoid the evils of the system.

In the territories of India, during the British rule also a large chunk of job went to faithful persons who were considered fit for serving British interest. But to get rid of from vires of ‘Spoil System’, the framers of the Constitution not only made provision of equal opportunity in the matter of public employment as an integral part of the fundamental rights guaranteed to every citizens but also enacted a separate part i.e., Part XIV under the title ‘Services under the Union and the States’.

Article 309 has been incorporated, which confers power upon the Parliament and the State legislature, to regulate the recruitment and condition of service of persons appointed to the public services and post in connection with the affairs of the Union or State. Proviso to this Article says that it shall be competent for the President or such person as he may direct in case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed.

Article 311 has been inserted to give protection to the holders of civil posts against dismissal, removal or reduction in rank of persons employed in civil capacities under the Union of a State. This Article provides that the order of dismissal, removal or reduction in rank can be passed only after holding an inquiry and giving reasonable opportunity of hearing subject to exception as contained therein.

Even the Public Service Commission has been appointed by inserting Article 315 for constitution of a Public Service Commission for the Union, while Public Service Commission for each State.

The purpose of insertion of these provisions, under the Constitution, is to make the process of recruitment and to provide protection to the public servants so that they may be able to work and discharge their duties without any fear from any quarter.

Framer of the Constitution has also thought it proper to provide fundamental rights to the citizens by maintaining equality before the law and to be treated without any difference on the ground of religion, race, caste, sex, descent, place or birth, residence or any of them.

The aforesaid spirit has been considered to be taken by considering Section 87 of the Charter Act, 1883 wherein it has been laid down that no native of the British territories in India shall be any reason by his religion, place of birth, descent, colour or any of them be disabled from holding any place, office or

employment under the company. The substance of this provision was incorporated in Section 96 of the Government of India Act, 1915.

In the Government of India Act, 1935, the guarantee against discrimination was reiterated and given extended meaning. However, in pre-independence era there was no Charter of Fundamental Right of a justiciable nature and even the safeguard provided under various statutes could be taken away by British Parliament or legislative authority in India.

19. The Constituent Assembly prepared draft of the Constitution of India extensively debated on the necessity of having separate chapter relating to fundamental rights. The principle of guarantee to every person ‘equality before the law’ and the ‘equal protection of laws’ was first included in the draft submitted to the sub-committee on fundamental rights by Sri K.M. Munshi and Dr. B.R. Ambedkar.

The final draft of Article 14 was adopted which now reads as under:

“14.Equality before law- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

20. The principle of non-discrimination on grounds of religion, race, colour, caste or language in the matter of public employment was contained in the draft submitted by Sri K.M. Munshi and Dr. B.R. Ambedkar.

Sri K.T. Shah and Sri Harman Singh also incorporated this basic principle in Clause 2 and 8 of their drafts. The sub-committee on fundamental rights discussed the subject. Sri K.T. Shah pressed his view that constitution should guarantee non-discrimination, not only in public employment but also in any enterprise aided or assisted by the State. However, his suggestion was not accepted by the sub-committee. The issue was then debated in the context of the demand by incorporation of a clause enabling the State to provide reservation in favour of backward class. Ultimately, the draft was adopted. Clause 4-A and 4-B were added to the Constitution (77th Amendment), 1995 under Article 16 of the Constitution of India.

Article 16 of the Constitution, which deals with the ‘quality of opportunity in matters of public employments, in its present form reads as under:

“16.Equality of opportunity in matters of public employment.—

(1).There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2).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 respect of, any employment or office under the State.

(3). Nothing in this article shall prevent Parliament from making any 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 within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.

(4).Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

(4A).Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.

(5).Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

(6).Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of then per cent, of the posts in each category.”

21. Now coming to the judicial pronouncements, rendered by the Hon’ble Apex Court in this regard.

The Hon’ble Apex Court in the judgment rendered in E.P. Royappa Vs. State of Tamil Nadu & Anr. [(1974) 4 SCC 3] [LQ/SC/1973/358] , has observed as under paragraph 85 that Articles 14 is genus while Article 16 is one of its species. Article 14 declares that State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 16 gives effect to the doctrine of equality in all matters relating to public employment.

For ready reference paragraph 85 of the judgment is quoted as under:

“85. The last two grounds of challenge may be taken up together for consideration. Though we have formulated the third ground of challenge as a distinct and separate ground, it is really in substance and effect merely an aspect of the second ground based on violation of Articles 14 and 16. Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle It is a founding faith, to use the words of Bose. J., “a way of life”, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.

(Emphasis supplied)

The equality clause enshrined under Article 16 mandates that every appointment to public post or office shall be made by open advertisement so as to enable all eligible persons to compete for selection on merit although the Court has carved out some exception to this Rule, for example, appointment on compassionate ground of the dependent of the deceased employee.

The Hon’ble Apex Court in the judgment rendered in Union Public Service Commission Vs. Girish Jayanti Lal Vaghela & Ors [(2006) 2 SCC 482] [LQ/SC/2006/85] as under paragraph 12 has been pleased to hold that Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices.

For ready reference, paragraph 12 of the judgment is quoted as under:

“12. Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words “employment or appointment” cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation, etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution. (See B.S. Minhas v. Indian Statistical Institute [(1983) 4 SCC 582 [LQ/SC/1983/296] : 1984 SCC (L&S) 26 : AIR 1984 SC 363 [LQ/SC/1983/296] ] .)”

Article 14 provides equality before law under which the State shall not deny to any person equality before law or the equal protection of the laws within the territory of India. But, as would appear from the insertion of Clause 4-A and 4-B under Article 16 by which, exception has been carved out by incorporating these clauses enabling the State to provide reservation in favour backward class etc. Therefore, question of providing equality of opportunity in the matters of public employment as provided under Article 16(1) and 16(2) no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. But along with Clause 1 and 2, provision has been made under Clause 3 thereof that Parliament will not be prevented from making any 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 within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment. Further, the State has also not been prevented from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. While under Clause 4-A, it has been stipulated that nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. Further clause (4B) of Article 16 stipulates that the State has not been prevented from considering any unfilled vacancies of the year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or 4-A as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.

It is, thus, evident that Article 16 does not in absolute term said to have a mandate of providing equality of opportunity in the matter of public employment, rather, subject to exception by making of enabling provision conferred to the State Government to make provisions for benefiting the backward classes.

22. The question is that how the equality before the law, as has been mandated under Article 14 of the Constitution of India, is to be followed in order to achieve the object of the Constitution which has been incorporated in the form of preamble of the Constitution of India, wherein equality of status and opportunity is one of the object and aim to be secured by the Constitution of India and only then the Country will be said to have achieved the goal and object of a good society, but subject to certain exceptions, as carved out under Article 16 (4-A) and (4-B) of the Constitution.

It is equally important that how the State will maintain balance in maintaining equality so as to achieve the mandate of Article 14 of the Constitution of India wherein it has been provided that the State shall not deny to any person equality before the law or the equal protection of laws within the territory of India.

23. The issue fell for consideration before the Hon’ble Supreme Court in which circumstance and on what ground the spirit of Article 14 will be said to be violated. Whether the Article 14 will be on the reasonable classification or it will hit only in a case of unreasonable classification.

24. We have looked into by going through Article 16 of the Constitution of India that the exception has been carved out in order to benefit the other backward classes i.e., SC/ST/OBC etc. by conferring enabling power to the State to make provision to provide special benefits so that they may act at par with the other section of the society, which means if there is a classification based on rationality then certainly it will not said to be in the teeth of Article 14 of the Constitution of India. But if the classification is based upon irrational decision of the State, then it is said to be unreasonable and in the teeth of Article 14 of the Constitution of India; meaning thereby the State can treat different person differently, if the circumstances justifies such treatment.

25. The Hon’ble Apex Court while dealing with the concept of Article 14 of the Constitution of India in the case of Chiranjit Lal Chowdhuri Vs. Union of India & Ors [AIR 1951 SC 41 [LQ/SC/1950/51] ] has held that the law will be constitutional even though it relates to a particular individual differently under specific circumstances and in order to challenge the constitutionality of law one as to show that the law is unreasonable and arbitrary in its application in that particular case.

The issue of reasonable classification also fell for consideration before the Hon’ble Apex Court in the case of State of West Bengal Vs. Anwar Ali Sarkar [AIR 1952 SC 75 [LQ/SC/1952/1] ] wherein it has been held that differentia between the basis of classification and the object of the things are two different things. It is important that there must be nexus between the basis of classification with the object of the Act.

In Shri Ram Krishna Dalmia & Ors Vs. Shri Justice S.R. Tendolkar & Ors [AIR 1958 SC 538 [LQ/SC/1958/32 ;] ], the Hon’ble Apex Court, taking into consideration catena of judgments rendered by Hon’ble Apex Court, has held that Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that

differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.

Relevant passage of paragraph 11 of the said judgment is quoted as under:

“11. ...(a).That a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself;

(b).That there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;

(c).That it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;

(d).That the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest;

(e).That in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and

(f).That while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and un-known reasons for subjecting certain individuals or corporations to hostile or discriminating legislation. ”

The aforesaid principle can further be found from The Special Courts Bill, 1978, which contains that: (1).The basic principle of Article 14 is that the persons in similar circumstances shall be treated similarly both in privileges conferred and liability imposed.

(2).The State shall have the power to determine with regard to the process of classification, which should be regarded as a class for the purpose of legislation and in relation to a law enacted on a particular subject. (3).The classification does not mean arbitrary application of law to certain person instead it means segregation in classes which had a systematic relation, usually found common property and characteristics. (4).The law can make and set apart the classes according to the needs and exigencies of the society and suggested by experience. It can even recognize ‘degrees of evil’ but the classification should never be arbitrary, or artificial.

A mere assumption that the authority which has been conferred with the discretion by law, would act arbitrarily in exercising such law, would not be determinative of the constitutionality of law.

Discretionary power does not necessarily mean discriminatory power. Inequality in the application of law may not question the constitutionality of such law.

A practical evaluation of operation of law in particular circumstances is necessary. A rule of procedure laid down by law derived as much within the purview of Article 14 as in the rule of substantive law.

In R.K. Garg Vs. Union of India & Ors [(1981) 4 SCC 675] [LQ/SC/1981/427] , the Hon’ble Apex Court has held that Article 14 forbids class legislation but does not forbid reasonable classification.

In the judgment rendered in State of Haryana & Anr Vs. Ram Chander & Anr, [(1997) 5 SCC 253] [LQ/SC/1997/876] , the Hon’ble Apex Court held that teachers teaching students of class 11 and 12 in Haryana Government vocational institution and those teachers teaching students of 11th and 12th Standards forming part of higher secondary educational institutions are entitled for the same pay-scale on the principle of ‘equal pay for equal work’. The Hon’ble Apex Court has held that the work performed by the teacher in vocational school and secondary school was qualitatively and quantitatively are the same, therefore, the principle of equal work for equal pay will apply and entitled for equal pay.

In V. Markendeya & Ors. Vs. State of Andhra Pradesh & Ors [(1989) 3 SCC 191] [LQ/SC/1989/219] , the Hon’ble Apex Court has held that in view of the discussion, we are of the opinion that where two classes of employees perform identical or similar duties and carrying out the same functions with the same measure of responsibility having same academic qualifications, they would be entitled to equal pay. If the State denies them equality in pay, its action would be violative of Articles 14 and 16 of the Constitution and the court will strike down the discrimination and grant relief to the aggrieved employees. But before such relief is granted the court must consider and analyse the rationale behind the State action in prescribing two different scales of pay. If on an analysis of the relevant rules, orders, nature of duties, functions, measure of responsibility, and educational qualifications required for the relevant posts, the court finds that the classification made by the State in giving different treatment to the two classes of employees is founded on rational basis having nexus with the objects sought to be achieved, the classification must be upheld. Principle of equal pay for equal work is applicable among equals, it cannot be applied to unequals. Relief to an aggrieved person seeking to enforce the principles of equal pay for equal work can be granted only after it is demonstrated before the court that invidious discrimination is practised by the State in prescribing two different scales for the two classes of employees without there being any reasonable classification for the same. If the aggrieved employees fail to demonstrate discrimination, the principle of ‘equal pay for equal work’ cannot be enforced by court in abstract. The question what scale should be provided to a particular class of service must be left to the executive and only when discrimination is practised amongst the equals, the court should intervene to undo the wrong, and to ensure equality among the similarly placed employees.

It is, thus, evident that Article 14 prohibits discriminatory legislation against an individual or against a class of individual but it does prohibit reasonable classification.

Reference in this regard be made to the judgment rendered by Hon’ble Apex Court in D.S. Nakara & Ors Vs. Union of India [(1983) 1 SCC 305] [LQ/SC/1982/209] , wherein at paragraph 11, it has been held as under:

“11. The decisions clearly lay down that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification, two conditions must be fulfilled viz. (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group; and (ii) that that differentia must have a rational relation to the objects sought to be achieved by the statute in question (see Ram Krishna Dalmia v. Justice S.R. Tendolkar [AIR 1958 SC 538 [LQ/SC/1958/32 ;] : 1959 SCR 279 [LQ/SC/1958/32 ;] , 296 : 1959 SCJ 147 [LQ/SC/1958/32 ;] ] ). The classification may be founded on differential basis according to objects sought to be achieved but what is implicit in it is that there ought to be a nexus i.e. causal connection between the basis of classification and object of the statute under consideration. It is equally well settled by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.”

In the case of State of West Bengal Vs. Anwar Ali Sarkar (supra) the Hon’ble Apex Court has held that to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others; and (2) that differentia must have a rationale relation to the object sought to be achieved by the Act. Thus, the differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. The test must be reasonable and not the arbitrary and irrational.

26. It is, thus, evident from the judgments rendered by Hon’ble Apex Court referred hereinabove that Article 14 granting the fundamental right to equality to every citizen in the country which provides equality to all the people irrespective of religion, race, caste, sex, descent, place or birth, residence or any of them.

27. There are two aspects under Article 14 i.e., ‘equality before the law’ and ‘equal protection of the laws’ and to test the constitutionality in order to know the reasonable classification under which it was tested whether there was a reasonable classification in the legislation. There is no absolute bar in making classification but classification must be based upon the rationality; meaning thereby there must be classification based upon the intelligible differentia.

28. This Court, on the basis of principle laid down by Hon’ble Apex Court to adjudge the discrimination to be hit by Article 14 of the Constitution of India only in a case where classification is unreasonable, is now proceeding to examine the validity of Rule 2 of the Rules, 2021 by which a class of candidates have been deprived chance for their consideration of selection in Group C Graduate Level Examination in order to fill up the vacancies in the different departments of the State of Jharkhand to be conducted by the Jharkhand Staff Selection Commission.

It cannot be denied that the object of recruitment to any service or post is to appoint most suitable person who answers the demands of the requirement of the job. In the case of public employment it is necessary to eliminate arbitrariness and favouritism and introduce the uniformity of standards in the matter of public employment, as has been held by Hon’ble Apex Court in the judgment rendered in Union of India & Ors Vs. N. Hargopal & Ors [(1987) 3 SCC 308] [LQ/SC/1987/379] wherein dealing with principle to be followed in the matter of filling up of the public posts, it has been held that the main object of recruitment is to choose the suitable person so that the condition of merit be allowed to be prevailed for the better functioning of the public administration.

Herein, Rules, 2015 has been made out under Section 12 of the Act, 2008, which contains a provision under Rule 5 wherein only eligibility criteria to possess by one or the other candidates is to have passed graduation examination mandatorily on the last date of submission of application form. Rules, 2015 however was amended in the year 2016 wherein also the similar provision as contained under Rule 5 of the Rules, 2015 has been allowed to be remained but the same has been amended by way of substitution bringing Rules, 2021 whereby and whereunder, one or the other candidate is required to possess Matriculation/10th and Intermediate/10+2 pass certificate from the recognized educational institutes situated in the State of Jharkhand but the said condition has been relaxed to the candidates who are coming under the fold of the Jharkhand Reservation Policy.

29. The question as to why such discrimination, based upon the educational institutions, that too the same has been relaxed with respect to the candidates who are coming under the fold of the Jharkhand Reservation Policy.

The Rule 2 of Rules, 2021 says that a candidate if passed from the institutions within the State of Jharkhand, irrespective of the fact that he is not covered with the reservation policy of the State of Jharkhand, will be eligible to participate in the process of selection. Meaning thereby, if one or the other candidates who has passed Matriculation/10th and Intermediate/10+2 Examination either from Jharkhand Academic Council, the Board recognized by the State of Jharkhand, or from the institutions/schools have central government affiliation i.e. the Central Board of Secondary Education or other Board(s) situated in the territory of Jharkhand, will only be found eligible to participate in the process of selection.

30. Therefore, the question arises that what would happen to such candidates who have passed Matriculation/10th and Intermediate/10+2 from the institutes affiliated by CBSE or ICSE Board or other Boards situated outside the territorial jurisdiction of the State of Jharkhand.

The answer would be that such candidate will be deprived from participating in the process of selection in view of provision of Rule 2 of the Rules, 2021.

31. Thus, by the impugned Rule difference has been carved out amongst one or the other candidates even though such candidates have passed from the institutes recognized by the CBSE or ICSE Board or other Boards but situated outside the territory of the State of Jharkhand. While the candidates who have passed from the schools recognized by the by CBSE or ICSE Board or other Boards but situated within the State of Jharkhand has been allowed to participate in the process of selection.

Will it not be lead to hostile discrimination Will it not be categorized as unreasonable classification on the ground that the candidates who have passed from a Board ie., CBSE or ICSE Board or other Boards from such institutes which are not situated in the State of Jharkhand will be deprived from participating in process of selection

32. Article 14 provides that there must be a reasonable classification but there cannot be an unreasonable classification.

Here, in the instant case, the classification has been made out by classifying one group of candidate from another group who have not passed Matriculation/10th and Intermediate/10+2 from institutes situated in the State of Jharkhand.

33. This Court, therefore, is of the considered view that such difference is based upon unreasonable classification, since, there cannot be any discrimination on the ground of educational institutions. Further, relaxation to said Rule has been given to such candidates who have been benefitted from the reservation policy of the State of Jharkhand.

There is no dispute that Article 16 of the Constitution of India entails provision to make out special policy to provide benefit to the candidates belonging to backward class i.e., Scheduled Caste, Scheduled Tribes etc. Such provision, carved out under Article 16 of the Constitution, is being followed by the State to obtain the Constitutional bounty to benefit such section of society who have been found not at par with the other section of the society, in that circumstance such classification cannot be said to be unreasonable since the same is based upon the rationality i.e., to bring such section of society at par with the other section of society so that they may come in the mainstream of the society and thereby society may develop as a whole.

But giving reservation to such section of society is one thing and giving further protection by carving out exception making the rule is another, as has been made herein that the candidates who are coming under the fold of the Jharkhand Reservation Policy is exempted from embargo of passing of Matriculation/10th and Intermediate/12th from the institutions situated within Jharkhand.

Therefore, in any case, it cannot be said to be based upon reasonable classification reason being that said class of candidates will be treated to have given double benefits i.e., they are being protected by extending the provision of reservation as also provided with benefit of relaxation to the effect that the certificate of Matriculation/10th and Intermediate/10+2 even if obtained outside the territory of State of Jharkhand will not deprive such candidate from their chance of consideration.

Herein, the petitioners have challenged the validity of the aforesaid Rule since they have been deprived from chance of consideration for their selection, if passed Matriculation/10th and Intermediate/10+2 outside the territory of State of Jharkhand. Our Constitution does not say that one or the other candidate will be deprived from their chance of consideration merely on the ground of getting the degree outside the territory of a particular State.

34. This Court on the basis of aforesaid reasoning also considers Rule 2 of Rules, 2021, carving out a provision therein to deprive a class of candidates who have passed Matriculation/10th and Intermediate/10+2 outside the territory of State of Jharkhand from depriving their chance of consideration for selection to the Group C posts of the different departments of the State of Jharkhand, considers it to be unreasonable.

The Hon’ble Apex Court time and again has laid down that getting an appointment is not a fundamental right rather right to consideration for appointment is considered to be fundamental right by providing one or other candidate to be treated on the principle of equality.

35. Further question will arise if such discrimination will be allowed to be continued then what will happen to the object and intent of ‘The Right of Children to Free and Compulsory Education Act, 2009’, which contains one of the objects while framing out the legislation with the belief that the values of equality, social justice and democracy and creation of the just and human society can be achieved only through provision of inclusive elementary education to all and it is in that pretext Act, 2009 has been enacted.

The aforesaid Act contains the meaning of School as under the provision of Section 2 which says that “school” means any recognised school imparting elementary education and includes — (i) a school established, owned or controlled by the appropriate Government or a local authority; (ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority; (iii) a school belonging to specified category; and (iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority.

Therefore, as per definition of ‘School’ under the Act, 2009, school means any recognized school imparting elementary education, as such there cannot be any discrimination on the ground of locality of the school, otherwise the spirit of Act, 2009 will be frustrated.

36. This Court requires to refer herein the judgment rendered by the Hon’ble Apex Court in Union of India & Ors Vs. Sanjay Pant & Ors [(1993) Suppl 2 SCC 494] [LQ/SC/1992/889] wherein considering the issue that a candidate was not selected on the ground that he did not have 10 years continuous education in Andaman and Nikobar, has been pleased to hold that the requirement of residence in a particular territory is opposed to Article 16(2). Under Article 16(3) only a law made by the Parliament can impose such a restriction or requirement, as the case may be.

For ready reference, paragraph nos. 6 and 7 of the judgment are quoted hereunder as:

“6.The Tribunal allowed the O.A. on the following reasoning: In two cases viz., M. Palaniappan v. Union of India [(1987) 3 SLJ (CAT) 611 (Cal)] and (Smt.) Rita Kumari [ O.A. No. 1221 of 1989, decided on 23-11-1990] the Tribunal has already held that termination of ad hoc appointee on the ground of not being a local candidate is illegal. These decisions were followed and applied in P.G. James v. Union of India [(1990) 14 ATC 247(Cal) : (1990) 2 Cal LT 89] where it was held that refusal to offer regular appointment on the said ground is illegal. These cases conclude the issue in this case. Moreover, requirement of residence in a particular territory (in this case, Union Territory of Andaman and Nicobar Islands) is opposed to Article 16(2). Under Article 16(3) only a law made by the Parliament can impose such a restriction or requirement, as the case may be. Admittedly, Parliament has not made any such law. Accordingly, the O.A. was allowed and it was declared that the respondent shall be deemed to have been appointed to the post of Statistical Assistant in a regular capacity with effect from April 8, 1987 (the date on which he was offered an ad hoc appointment) and that his seniority should be determined accordingly.

7. The learned counsel for the appellants contended that the requirement of being a local candidate for the purpose of employment, in the case of Andaman and Nicobar Administration was a provision made under clause (4) of Article 16 of the Constitution and is, therefore, not hit by clause (3) or (2) of Article 16 of the Constitution. The learned counsel, however, could not place before us any order, notification or other proceeding — not even the Circular dated September 12, 1980 struck down in Palaniappan [(1987) 3 SLJ (CAT) 611 (Cal)] — providing that for employment in Andaman and Nicobar Administration, the candidate should be a ‘local candidate’. Only two letters, viz., the letter from the Government of India bearing Reference No. 14011/6/77- A&N addressed to the Chief Commissioner, Andaman and Nicobar Administration and the letter No. U-14011/10 (S. 11)/79-A&N dated February 14, 1984 from the Government of India, Ministry of Home Affairs addressed to the Chief Secretary, Andaman and Nicobar Administration, have been placed before us. We have carefully perused the same. Neither of them provides that only a ‘local’ candidate shall be entitled to be appointed in respect of any or all posts in the Andaman and Nicobar Administration or that only local candidates will be preferred in the matter of such appointment. In such a situation, the question whether they can be justified with reference to clause (4) of Article 16 does not arise. We must say that the appellants have not laid the factual foundation for the argument raised by them before us. This argument, it may be noted, was not raised before the Tribunal.”

Further, the Hon’ble Apex Court in the judgment rendered in Kailash Chand Sharma Vs. State of Rajasthan & Ors [(2002) 6 SCC 562] [LQ/SC/2002/734] , while dealing with the situation as to whether awarding bonus marks for the residents of districts and rural areas within the district is constitutionally valid, when tested on the touchstone of Article 16 read with Article 14 of the Constitution of India in the matters of employment, has been pleased to hold that the said condition of awarding bonus marks amounts to impermissible discrimination.

For ready reference, relevant paragraphs of the judgment as under paragraph nos. 13, 14, 28, 31 and 33 are quoted hereunder as:

“13. 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 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 Article 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 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, save as provided in Article 16(3). 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.

14. Article 16 which under clause (1) guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State reinforces that guarantee by prohibiting under clause (2) discrimination on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. Be it noted that in the allied article — Article 15 — the word “residence” is omitted from the opening clause prohibiting discrimination on specified grounds. Clauses (3) and (4) of Article 16 dilute the rigour of clause (2) by (i) conferring an enabling power on Parliament to make a law prescribing the residential requirement within the State in 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 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) insofar 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. 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 of residence is only taken into account in addition to other relevant factors. This, in effect, is the import of the expression “only”.

28. 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 confronts 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 teaching. Can the 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' jobs in primary schools — be they from rural area or town area — do not generally belong to the affluent class. Apparently they come from the 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 the best of schools and colleges which the well-to-do class may have. 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.

31. 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 Baljeet Kaur case [1992 Raj WLR 83] and Arvind Kumar Gochar case (decided on 6-4-1994). Shri Rajeev Dhavan appearing for the selected candidates who have filed SLP (C) No. 10780 of 2001, did his 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 area falling within the Panchayat Samiti concerned, 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 Panchayat areas comprised therein. He submits that the local candidates can get themselves better assimilated into the local environment and will be in a better position to interact with the students of 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 Panchayat-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, 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 vary 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 should have mentioned in the notification that the candidates should know a 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 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 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 zonewise or regionwise, there could possibly be no justification for giving weightage to the candidates on the basis of residence in a district. The candidates belonging to that zone, irrespective of the fact whether they belong 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 standpoint 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 candidates are more familiar with the dialect of the district rather than the town area candidates of the same district The answer to both the questions in our view cannot but be in the 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 based primarily on residence which is proscribed by Article 16(2).

33. 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 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 the circular has the effect of diluting merit, without in any way promoting the objective. The impugned circular dated 10-6-1998 insofar as the award of bonus marks is concerned, has been rightly declared to be illegal and unconstitutional by the High Court.”

[Emphasis supplied]

The Hon’ble Apex Court in the judgment rendered in State of Maharashtra Vs. Raj Kumar [(1982) 3 SCC 313] [LQ/SC/1982/80] while testing as to whether rule framed by the government and followed by the Public Service Commission for selecting officers laying additional conditions that rural candidates who passed S.S.C. examination from village or ‘C’ type Municipal towns to be awarded a weightage of 10 per cent marks in each subject by Public Service Commission is legally permissible or not, has been pleased to hold that such condition is violative of Article 14 and 16.

For ready reference, paragraph 2 of the judgment is quoted hereunder as:

2. We have gone through the Rules framed by the government and adopted by the Public Service Commission and we find that the Rules framed suffer from clear and serious constitutional infirmities as a result of which the impugned Rules have been rightly struck down by the High Court. In the first place the object of the rule was to take officers who had full knowledge of rural life, its problems, aptitudes, working of the people in villages and the suitability for working as officers in the rural areas so as to be materially useful and in order to make a constructive contribution to the upliftment of rural life. In order to achieve this purpose a rule was made that a candidate coming from the rural areas will be a rural candidate and he must have passed SSC examination which is held from a village or a town having only a ‘C’ type Municipality. This rule, however, when translated into action does not seem to fulfil or carry out 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 in the competitive examination. Thus there is no nexus between the classification made (assuming for the purpose of this case that such a classification is unreasonable) and the object which is sought to be achieved as a result of which the rule is clearly violative of Articles 14 and 16 of the Constitution of India. Another infirmity from which the Rules suffer is that any person who has passed the SSC examination and is supposed to be a rural candidate has to be given particular weightage by the Public Service Commission who has to award 10 per cent marks in each subject for such a candidate. The Rules also provide that Viva Voce Board would put relevant questions to judge the suitability of candidate for working in rural areas and to test whether or not they have sufficient knowledge of 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 an impermissible classification. The rule of weightage as applied in this case is manifestly unreasonable and wholly arbitrary and cannot be sustained. The High Court has fully elaborated these points and has aptly observed thus:

On the contrary, it places a rural candidate in an advantageous position by a sheer accident of his passing the SSC examination from rural area.

Here we are faced with a problem that a candidate by sheer chance of his appearing and passing the examination from rural area gets an advantage over all others by arbitrary addition of 10 per cent of marks which, as we have indicated above, has no reasonable nexus or connection with the object of getting the best candidates suitably adapted to rural life.

In the judgment rendered in V.N. Sunanda Reddy & Ors vs. State of A.P. & Ors [ 1995 Supp (2) SCC 235] [LQ/SC/1995/150] , the Hon’ble Apex Court while testing a rule, which provides to award additional 5% of the total aggregate maximum marks to the candidates who obtained basic educational qualification in Telugu language, has been pleased to hold the said rule violative of Article 14 of the Constitution of India.

The Delhi High Court while dealing with issue of discrimination based upon the institutions, in the judgment rendered in Iqbal Hussain & Ors Vs. MCD & Anr. [2005 SCC Online Del 1009] wherein the issue of consideration was the rule as contained in Note 8 of the Rules, which confines consideration of candidates, who have completed their 10th and 12th Examinations from Delhi, has been to hold that the said Rule (Note 8) is violative of Article 14 of the Constitution of India as the same is not coming under the fold of reasonable classification.

For ready reference, paragraph nos. 4, 9, 10, 11, 14, 16, 21, 23, 25 and 27:

4. All the petitioners are aggrieved by Note 8, which confines consideration of candidates, who are qualified, but completed their 10th and 12th Examinations from Delhi. These petitioners have completed their 10th and/or 12th Examinations from outside Delhi; some of them are Delhi candidates, who finished their schooling from outside; others are candidates hailing from different regions, but living in Delhi, some have completed their teachers' training qualifications from Delhi; all of them allege that they are registered with the Employment Exchanges in Delhi. The impugned restrictive condition has been attacked as discriminatory and arbitrary.

9. Mr. Alok Sangwan, appearing for the petitioners, submitted that the impugned condition violates Articles 14 and 16 of the Constitution of India. Once the essential qualifications relatable to the post are prescribed, the superimposition of a condition that the selected candidate should have graduated his 10th and 12th from Delhi is impermissible in law. It amounts to an irrational, geographical criteria, bearing no nexus with the object of the recruitment.

……….

10. Learned counsel for the petitioner relied upon the decision reported as Kailash Chand Sharma etc., etc., v. State of Rajasthan and Ors., 2002 (6) SCC 562 [LQ/SC/2002/734] to submit that similar criteria, based purely on geographical or residential considerations, has been declared unconstitutional. …....

11. Mr. V. Sudheer, learned counsel for the petitioner, besides reiterating the above submissions, also stated that only Parliament could legislate the conditions, under which, and the category of posts, for which, residence based qualifications could be legitimately imposed, by virtue of Aritlce 16(3) of the Constitution of India. This meant that all other authorities, including State legislatures, were denuded the right to make reservations and prescribe residence based employment conditions.

14. Learned counsel for the respondents submitted that the condition was not an impermissible classification, but an instance of institutional preference, which is permissible under the Constitution of India. …

16. Articles 14 and 16 have been interpreted to permit reasonable classification. Article 16(2) forbids discrimination on the ground, inter alia, of residence, in matters of public employment. This bar is to an extent lifted, by Article 16(3), which enables the parliament to make a law prescribing a residential requirement within the State in regard to a classes of employment or appointment to an office under the State. Residence based classification, in matters of public employment, is therefore, clearly discriminatory, unless it has the sanction of Parliament, under Aritcle 16(3). The issue is whether the impugned condition is a residential condition, falling within the prohibited zone, or a permissible classification, under Article 14 and 16(1).

21. The plea of institutional preference cannot also be taken, to justify a reservation, in public employment, as in the present case. Institutional preference, as understood, is a term used in the context of admissions to educational, often, professional educational institutions. It implies a preference to the students of a particular state. The Supreme Court has recognized this preference, as a constitutionally permissible mechanism. However, “institutional preference” cannot be used in public employment. If the MCD were of the view that all schools and institutions in Delhi offering 10th and 12th standard are a separate and distinct class, and therefore constitute a separate category, it should have supported that conclusion on the basis of objective material. It is not as if all such institutions are homogenous; all kinds of schools, affiliated to different Boards (CBSE, ICSE, National Open Schools, etc) exist in Delhi. There are private schools, (both aided and unaided); Schools managed by autonomous bodies, the MCD, the Government of NCT, etc. Hence, the mere description of schools on the basis of their location does not set them apart from schools in the rest of the country. The plea of institutional preference here, therefore, cannot stand scrutiny as a distinct class or category, justifying a valid classification.

23. There is yet another reason why Note 8 cannot be sustained. Even if it were to be assumed, that it is based upon an intelligible differentia, there is no attempt to show how that has a rational nexus with the object sought to be achieved, viz appointment of most suitable candidates to the post. The rule, one of exclusion, on the contrary works to eliminate potentially merited candidates, who might possess better academic qualifications and also might perform well in the interview as per the MCD'S yardsticks. Hence, the geographical basis of the qualification has no nexus with the object of the recruitment process; it even defeats the object.

25. India is one country with one Constitution, which outlines equal rights, and assures equal opportunities to all. Every citizen is a citizen of the whole country. We are not a confederation of city- states, each of which fiercely guard their independent status, and jealously protect their citizens' local rights. Conceived as the quintessentially Indian metropolis, a microcosm reflecting aspirations of the people of India, Delhi attracts talent from all over the country, and is the beneficiary of vast Union expenditure. Protectionism is not a known trait characterizing the national capital.

27. The impugned note is but a masked residential requirement, which falls foul of Article 16(2) to the extent it insists that the student must have completed 10th and 12th standard from Delhi, thereby implying that for that duration, residence is deemed essential; it is also violative of Article 14 as not amounting to reasonable classification, as the MCD has. not shown the basis of the differentia, and how it furthers the object of the recruitment process. In view of these findings, the impugned note cannot be sustained. [Emphasis supplied]

37. This Court is conscious of the fact that while testing the constitutionality of legislation, the duty of the Court, first is to save it but does not qualify the taste of rationality, only then such legislation can be declared to be invalid.

Reference be made in this regard to the judgment rendered in Government of A.P. Vs. P. Laxmi Devi [(2008) 4 SCC 720] [LQ/SC/2008/487] .

This Court, on the basis of discussions made hereinabove and taking into consideration the spirit of Article 14 of the Constitution of India, is of the considered view that making discrimination in between the similarly situated candidate merely on the ground of obtaining Matriculation/10th and Intermediate/10+2 from the recognized institute situated outside the territory of State of Jharkhand is considered to be unreasonable classification and as such the same is in the teeth of Article 14 of the Constitution of India.

38. Now coming to the issue of validity of provision of Rule 10 of Rules, 2015 (Amended Rules, 2016), which has been amended by way of substitution as under Rule, 7 of Rules, 2021 whereby and whereunder Hindi/English has been deleted from the syllabus of Paper-2 is concerned, rival submission has been advanced on behalf of parties.

39. Argument has been advanced on behalf of petitioners by showing population of persons based upon the language in the State of Jharkhand, as per Census of 2011, wherein Hindi speaking people are shown to be in majority but even then Hindi has been deleted from the syllabus of Paper-2. Likewise, English has also been deleted.

40. Argument has been advanced on behalf of State of Jharkhand that Hindi/English has been deleted for the purpose of providing adequate representation in Group C posts in different departments of the State of Jharkhand based upon the candidates knowing the regional language. It has been argued that since Hindi speaking people are in majority and if the Hindi language/subject will not be deleted from the syllabus of Paper-2 the consequence would be that it is only Hindi knowing candidate who will be selected and finally they would prevail upon the candidates knowing regional languages like Urdu/ Santhali/ Bangla/ Mundari (Munda)/Ho/Khariya/Kundukh(Uraon)/ Kurmali/Khortha/Nagpuri/Panchpar-ganeya/Uriya.

The State has also argued by referring to Article 29 of the Constitution of India, which provides protection of interests of minorities, under which any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

41. This Court, after appreciating the rival submissions made on behalf of parties on the validity of Rule 10 of Rules, 2015 (amended Rules, 2016), which has been substituted by Rule 7 of 2021 by which Hindi/English has been deleted from the syllabus of Paper-2 is again referring to the provision of Rule 10, as was in Rules, 2015 and amended Rule, 2016, wherein Hindi and English language were in syllabus in Paper-2 apart from other language i.e., Urdu/ Santhali/ Bangla/ Mundari/ Ho/ Khariya/ Kundukh (Uraon)/ Kurmali/Khortha/Nagpuri/ Panchparganeya/ Uriya; but the Hindi and English have been deleted by way of amended Rules, 2021.

42. This Court is not questioning the policy of the State Government for improving other regional languages and according to considered view of this Court the regional language is also required to be developed so that people living in the remotest area knowing regional languages may also be a part of the public administration.

But, the question herein is that can it be allowed to be achieved at the cost of other languages i.e., Hindi/English. Developing a language does not mean to discourage other language, since there cannot be discrimination on the basis of language.

Here, by virtue of amended Rule since Hindi and English have been deleted from the syllabus of Paper-2 and marks of the Paper-2 is to be added in determining the merit of one or the other candidate. However, in Paper I, Hindi/English is there but the same is only qualifying in nature and the marks obtained above 30% is not to be added for determining of merit of one or the other candidate; meaning thereby whether a candidate knowing a regional language i.e. Urdu/Santhali/ Bangla/Mundari/Ho/Khariya/Kundukh(Uraon)/Kurma li/Khortha/Nagpuri/Panchparganeya/ Uriya, will also have to pass Hindi/English by way of proficiency test as under Paper-1, but if the marks have been secured more than 30% it will not be added in determining the merit of one or the other candidate.

Therefore, the deletion of Hindi/English from Paper-2 will have serious consequence since the Hindi/English knowing candidate will not be able to participate in the process of selection since they might not be knowing other regional languages i.e., Urdu/ Santhali/ Bangla/ Mundari/ Ho/ Khariya/ Kundukh(Uraon)/ Kurmali/ Khortha/ Nagpuri/ Panchparganeya/ Uriya. As such, in that circumstance, will it not be said to be discriminatory policy decision of the State of Jharkhand Will it not deprive a class of candidate knowing Hindi/English language

The improvement of a class of candidate on the basis of language is not an issue herein rather concern as per pleading made and argument advanced on behalf of petitioners is as to why Hindi/English has been deleted even though Hindi speaking people are in majority in the State of Jharkhand, as would appear from the Census of 2011 and in comparison to the other candidates knowing other regional languages.

43. This Court has perused the Census, 2011 and found therefrom that the extent of the Hindi knowing people is much in number in comparison to the regional language knowing people, as would appear from the comparative chart of the Census, 2011 based upon the language, as provided by counsel for the petitioners in course of hearing of the matter, which is being referred hereinbelow in the tabular form:

Sl No.	Mother Tongue Name	Population
1.	Khortha/Khotta	7738960
2.	Santhali	2895764
3.	Hindi	7059131
4.	Sadan/Sadri	1627083
5.	Urdu	1965438
6.	Magadhi/Magahi	1367337
7.	Nagpuria	757726
8.	Panch Pargania	244290
9.	Bengali	3213423
10.	Bhojpuri	756726
11.	Kurukh/Oraon	952164
12.	Maithili	125877
13.	Odia	531077
14.	Karmali	355046
15.	Ho	994302
16.	Kharia	140148
17.	Malto/Paharia	151565
18.	Mundari	942108

44. It is evident that the Hindi language knowing candidates is larger in comparison to other regional language knowing candidates and in that circumstances, the Hindi has been deleted from the syllabus of Paper-2 as also English, the consequence of which will be that large section of the candidates, who are Hindi knowing candidates, will be deprived from chance of consideration on the ground that they are not knowing the other regional languages.

There may be a case of providing preference to the regional language(s) but preference does not mean ousting the candidate in order to benefit other class of candidates knowing a particular language. If it will be allowed it will lead to hostile discrimination and for no fault of the candidate knowing the Hindi or English language they will be deprived from the chance of consideration.

45. So far as the contention of learned counsel for the respondents-State of Jharkhand that such decision has been taken based upon the mandate of the Constitution as contained under Article 29 (1) thereof, but we, after considering the provision of Article 29(1), have found that the said provision has been carved out to provide protection of the interest of the minorities, who are residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. Here, there is no question that anybody is prohibiting to conserve any distinct language, script or culture, rather, the question is that merely because Hindi/English have been deleted from Paper-2 will it save the right to conserve the same. The answer of this Court is in negative, reason being that conserving the right of any language, script or culture cannot be allowed at the cost of discouraging other language. Otherwise, it will create chaotic situation in the State and that will ultimately lead to hit Article 14 of the Constitution of India, which prohibits hostile discrimination.

46. As we have discussed the principle of classification whether it is reasonable or unreasonable, as per the discussion made by Hon’ble Apex Court in the judgment referred hereinabove, this Court is of the view, with respect to the amendment under Rule 10 by deleting Hindi/English by substitution of Rule 7 in Rules, 2021, that such deletion is also coming under the fold of unreasonable classification since Hindi/English language knowing candidates have been deprived from the chance of consideration.

47. This Court, after having discussed the fact hereinabove along with legal position, as to whether before making amendment what was the object and intent of the State Government and for that purpose this Court has called upon the original record of proceeding, in order to peruse as to what discussion has been made, vide order dated 01.12.2021 wherein this Court has passed following order:

“This Writ petition has been filed inter alia for grant of following reliefs:-

a) To hold and declare the Jharkhand Staff Selection Commission Examination (Graduate Level) Conduct (Amendment) Rules, 2021 as notified and published by the respondents vide the gazette notification as contained in memo no. 3849, dated 10.08.2021 (Annexure-3) particularly its Rule no.2 pertaining to amendments made in Rule 5 (ii) of Jharkhand Staff Selection Commission Examination (Graduate Level) Conduct Rules, 2015 and Rule no. 7 pertaining to amendments made in Rule 10 of the aforesaid Rules of 2015 as arbitrary, irrational and unreasonable and thereby ultra vires provisions of the Constitution of India for abridging the fundamental rights of the aspiring candidates including the petitioners.

b) Consequent upon such declaration as prayed in the foregoing paragraph, the Hon’ble Court may be pleased to quash and set aside the concerned Rule 3 and 7 of the Jharkhand Staff Selection Commission Examination (Graduate Level) Conduct (Amendment) Rules, 2021 whereby amendments have been brought in Rule 5 (ii) and Rule 10 of the Jharkhand Staff Selection Commission Examination (Graduate Level) Conduct Rules, 2015 and consequent thereto direct the respondents to hold the competitive examinations under JSSC as per the original provisions as amended except the above referred Rules/Amendments which are under challenge in the present writ petition.

It appears that the main challenge is firstly to the Rule 2 of the Jharkhand Staff Selection Commission Examination (Graduate Level) Conduct (Amendment) Rules, 2021 substituting the minimum qualification in which it has been inserted that all the candidates belonging to the unreserved category should be mandatorily have the qualifications of Matric/10th and Intermediate/10+2 from a recognized institution of the State of Jharkhand. In addition to that it has also been pointed out that so far as the reserved category candidates are concerned they have been relaxed from the aforesaid condition.

The aforesaid substitution is extracted and quoted hereunder as:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

The next challenge is to Rule 7 of the Jharkhand Staff Selection Commission Examination (Graduate Level) Conduct (Amendment) Rules, 2021 by which from Paper-II which is a compulsory subjects ‘Hindi’ and 3 ‘English’ have been removed. The concerned Rule is extracted and quoted hereunder as:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

Issue notice to the respondents and also to the Learned Advocate General.

Learned Advocate General is present and waives notice on his behalf as well on behalf of the State authorities.

As prayed, put up this matter on 21.12.2021 enabling the State to file appropriate counter affidavit and produce the concerned file for perusal of this Court showing under what circumstances those decisions have been taken by the State as it is being alleged by the writ petitioner that under the garb of these substitution/amendments in the concerned Rules, 100% reservation in State of Jharkhand is contemplated.

In above view of the matter, as serious challenge has been made to the validity of the concerned Rules being in the teeth of the provisions of the Constitution of India, we deem it desirable that all the exams/selection process being done in the concerned amended Rules would be subject to the result of this writ petition and this should be well reflected in the advertisement made for the purpose by the authorities who are engaged in selection process/examination conducting authority.

In pursuance thereto, record has been produced. We have perused the record and found therefrom that originally the decision was taken by the Department of Personnel, Administrative Reforms and Raj Bhasha, Government of Jharkhand for framing a Rule for conducting examination of Graduate Level Examination by the Jharkhand Staff Selection Commission. Such decision has been taken in purported exercise of power conferred under Section 12 (1) of the Act, 2008, which confers power upon the State Government to make Rules for implementation of provision of this Act.

The file proceeded from one stage to another and finally Rules, 2015 has come into being. Thereafter, amendment has been carried out by bringing the amended Rules, 2016 in force.

It further appears from the record that after notification of amendment of Rules, 2016 a fresh proposal was prepared for amendment in Rule 5 of Rules, 2015 (amended Rule, 2016), to the effect that the candidate is required to pass Matriculation/10th and Intermediate/10+2 examination from the recognized institutions situated within the State of Jharkhand, however, such embargo was relaxed for the candidates who are covered under the reservation policy of State of Jharkhand, as also amendement in Rules, 10 thereof, whereby Hindi/English was deleted from paper-2. Accordingly, the file has proceeded from one stage to another and finally the proposal was sent before the Department of Law and Justice, State of Jharkhand.

The Law Department has given contrary view by referring certain decisions of Hon’ble Apex Court and declined to give its approval upon the draft notification.

But the file was sent before the learned Advocate General of the State, who has given its opinion discarding the opinion of the law department, though no valid reason of difference of opinion, as has been given by the Law Department, has been shown.

Thereafter, the State Government has proceeded and sent the file before the Departmental Minister, who gave its nod and consequent thereupon it was sent before the State Legislative Committee for its approval. But it appears that committee has sought for certain documents including the opinion of Law Department but the same was not supplied and without any approval from the committee the Rule has been framed.

Thus, it is evident that the file originally proceeded with an object to make out a Commission in the name of ‘Jharkhand Staff Selection Commission’ for conducting combined competitive examination for filling up the Group C posts in different departments of the State of Jharkhand.

The State of Jharkhand, in exercise of power conferred under Section 12 of the Act, 2008, has also come out with Rules to carry out the provisions of Act, 2008 in the year 2015 and subsequently, it was amended in the year 2016. As such the sole object of the Act, 2008 is to make out a Commission for the purpose of conducting combined competitive examination. But deviating from the said object, Rule has been framed depriving a class of candidate from participating in the process of selection based upon ‘institution’ and ‘language’ based discrimination.

48. The position of law is well settled that before preparing a legislation the object is required to be there and the sole object, as would appear from the preamble of the Act, 2008, is to conduct combined competitive examination for Group C Posts but without any discussion made by the Rule making authority, the impugned Rule has been notified.

In the recent judgment of the Hon’ble Apex Court rendered in State of Tamil Nadu & Anr. Vs. National South Indian River Interlinking Agriculturist Association [(2021) SCC Online SC 1114], while dealing with the classification arbitrariness, which is to be tested based on the proportionality test, has held at paragraph 32 and 33 as under:

“32. While non-classification arbitrariness is tested based on the proportionality test, where the means are required to be proportional to the object, classification arbitrariness is tested on the rational nexus test, where it is sufficient if the means share a ‘nexus’ with the object. The degree of proof under the test would impact the judgment of this Court on whether the law is under-inclusive or over-inclusive. A statute is ‘under-inclusive’ if it fails to regulate all actors who are part of the problem. It is ‘over-inclusive’ if it regulates actors who are not a part of the problem that the statute seeks to address. The determination of under-inclusiveness and over-inclusiveness, and degree of deference to it is dependent on the relationship prong (‘rational nexus’ or ‘proportional’) of the test.

33. The nexus test, unlike the proportionality test, is not tailored to narrow down the means or to find the best means to achieve the object. It is sufficient if the means have a ‘rational nexus’ to the object. Therefore, the courts show a greater degree of deference to cases where the rational nexus test is applied. A greater degree of deference is shown to classification because the legislature can classify based on the degrees of harm to further the principle of substantive equality, and such classification does not require mathematical precision. The Indian Courts do not apply the proportionality standard to classificatory provisions. Though the two-judge Bench in Anuj Garg (supra) articulated the proportionality standard for protective discrimination on the grounds in Article 15; and Justice Malhotra in Navtej Singh Johar (supra) held that less deference must be allowed when the classification is based on the ‘innate and core trait’ of an individual, this is not the case to delve into it. Since the classification in the impugned scheme is based neither on the grounds in Article 15 nor on the ‘innate and core trait’ of an individual, it cannot be struck down on the alleged grounds of under-inclusiveness and over- inclusiveness.”

Even accepting the view of the State that the classification is just and proper, either qualification based upon institution or language, but position of law is well settled that it should be based on scientific study and not on some broad generalization if any particular region or area has peculiar socio-cultural features warranting a differential treatment for the purpose of deploying personal bearing that could only be done after conducting a survey and identifying such region or districts. That is the minimum to be done.

Reference in this regard be made to the judgment rendered by Hon’ble Apex Court in Kailash Chand Sharma Vs. State of Rajasthan & Ors (supra), wherein at paragraphs 31 and 48, it has been held as under:

“31. 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 Baljeet Kaur case [1992 Raj WLR 83] and Arvind Kumar Gochar case (decided on 6-4-1994). Shri Rajeev Dhavan appearing for the selected candidates who have filed SLP (C) No. 10780 of 2001, did his 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 area falling within the Panchayat Samiti concerned, 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 Panchayat areas comprised therein. He submits that the local candidates can get themselves better assimilated into the local environment and will be in a better position to interact with the students of 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 Panchayat-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, 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 vary 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 should have mentioned in the notification that the candidates should know a 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 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 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 zonewise or regionwise, there could possibly be no justification for giving weightage to the candidates on the basis of residence in a district. The candidates belonging to that zone, irrespective of the fact whether they belong 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 standpoint 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 candidates are more familiar with the dialect of the district rather than the town area candidates of the same district The answer to both the questions in our view cannot but be in the 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 based primarily on residence which is proscribed by Article 16(2).

48. 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. 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 germane to constitutional guarantee of equality.”

Herein, also in the facts and circumstance of the case, as would appear from the original record that there is no scientific study rather on the broad generalization the discrimination has been carved out which cannot be said to be justifiable.

49. In these circumstances, the question arises that what led the State Government to exercise the power under Section 12 of the Act, 2008 to deprive a class of candidate from participating in the process of selection to fill up the vacancies in Group C posts in different departments of the State of Jharkhand, and to carve out different class by making class amongst class and can it be said to be object and spirit of the Act, 2008.

50. This Court, after perusing the record has found therefrom that there is no discussion, as the argument has been placed on behalf of State of Jharkhand, narrating the object necessitating the State Government to make such amendment depriving a class of candidates from participating in the process of selection or putting a class of candidates in detrimental situation by deleting Hindi/English from the syllabus of Paper-2, as such it appears to this Court that such amendment has been brought by the State of Jharkhand in exercise of power conferred under Section 12 of the Act, 2008 is having no nexus with the object, which is mandatory requirement for legislating the Act/Rules/Regulations.

51. It is relevant to refer herein that the authority, who is legislating the subordinate legislation, is required to consider its object by applying active mind, considering the purpose for which the subordinate legislation is being enacted.

Though, the same has been tried to be explained by the respondents, by way of filing affidavit or advancing argument orally, but such argument, either mentioned in the affidavit or submitted orally before this Court, cannot be considered to be part of consideration for the purpose for which the subordinate legislation has been enacted rather the same is required to be reflected from the record itself.

Therefore, raising such argument in defence is not acceptable and accordingly, the same is hereby rejected.

52. Further, this Court has found that the object and intent of the Act, 2008 is not to deprive a class of candidates from participating in the process of selection for consideration of their candidatures, rather, object is to conduct Combined Competitive Examination for filling up the Group C posts in different departments of the State of Jharkhand.

53. Argument has been advanced on behalf of respondents-State of Jharkhand that one of the provisions, as contained in the Act, 2008, is to fix the eligibility for recruitment and therefore, the amendment has been carved out by depriving a section of society and hence the same being under the eligibility clause, the power conferred to the State Government under Section 12 of the Act, 2008 has correctly been invoked.

54. This Court is not in agreement with such submission reason being that eligibility does not mean to deprive a class of candidate from participating in the process of selection rather eligibility means to fix the eligibility of one or the other candidates by way of taking a policy decision but certainly not to deprive a class of students on the basis of obtaining the educational qualification from a particular State/territory otherwise the same will lead to regionalism which will be against the spirit of the Constitution of India, as under Part II of the Constitution, which recognizes only one Indian citizenship and when there is one citizenship why there will be category against the same class merely on the ground of obtaining the educational qualification, either Matriculation/10th and Intermediate/10+2 or Graduate level certificate.

In that view of the matter, the same will lead to discrimination and arbitrariness on the part of the State which ultimately be in the teeth of Article 14 of the Constitution of India.

55. The eligibility connotes the minimum criteria for selection that may be laid down by the executive authority/legislature. It is not in dispute that under the Act, 2008 eligibility for recruitment was also the object of the Act to be determined by making a rule in view of provision of Section 12 of the Act, 2008 and that is the reason Rules, 2015 (amended Rules, 2016) has been made, which only contains the eligibility i.e., the minimum criteria for selection, as would appear from the provisions of Rule 5 thereof, but in the impugned provision under the amended Rules, 2021 as under Rule 2, it has been inserted that apart from the minimum eligibility criteria a candidate is required to pass Matriculation/10th and Intermediate/10+2 examination from the recognized institutions situated within the State of Jharkhand.

Inserting of such educational qualification cannot be considered to be ‘eligibility criteria’ rather eligibility criteria within the meaning eligibility come under the fold of qualification since the same is additional norms laid down by the rule making authority.

Difference in between the ‘eligibility’ and ‘qualification’ has been discussed by the Hon’ble Apex Court in the judgment rendered in Dr. Preeti Srivastava & Ors Vs. State of M.P. & Ors. [(1999) 7 SCC 120] [LQ/SC/1999/702] , wherein at paragraph 39 the same has been explained as under:

“39. The respondents have emphasised the observation that admission has to be made by those who are in control of the colleges. But, the question is, on what basis Admissions must be made on a basis which is consistent with the standards laid down by a statute or regulation framed by the Central Government in the exercise of its powers under Entry 66 List I. At times, in some of the judgments, the words “eligibility” and “qualification” have been used interchangeably, and in some cases a distinction has been made between the two words — “eligibility” connoting the minimum criteria for selection that may be laid down by the University Act or any Central statute, while “qualifications” connoting the additional norms laid down by the colleges or by the State. In every case the minimum standards as laid down by the Central statute or under it, have to be complied with by the State while making admissions. It may, in addition, lay down other additional norms for admission or regulate admissions in the exercise of its powers under Entry 25 List III in a manner not inconsistent with or in a manner which does not dilute the criteria so laid down.”

Similar view has been taken by Hon’ble Apex Court in the judgment rendered in State of Gujrat & Ors vrs. Arvind Kumar Tiwari & Anr. [(2012) 9 SCC 545] [LQ/SC/2012/795] , wherein at paragraph 9 it has been held as under:

“9. The eligibility for the post may at times be misunderstood to mean qualification. In fact, eligibility connotes the minimum criteria for selection, that may be laid down by the executive authority/legislature by way of any statute or rules, while the term “qualification”, may connote any additional norms laid down by the authorities. However, before a candidate is considered for a post or even for admission to the institution, he must fulfil the eligibility criteria. (Vide Preeti Srivastava v. State of M.P. [(1999) 7 SCC 120 [LQ/SC/1999/702] : AIR 1999 SC 2894 [LQ/SC/1999/702] ] )”

56. Herein, it has been argued that the insertion of additional qualification, as has been inserted herein, cannot be construed to be eligibility rather the same is in addition to the eligibility criteria, which is evident from the phrase ‘in addition to the eligibility criteria’ by which the candidate is required to pass Matriculation/10th and Intermediate/10+2 examination from the recognized institutions situated within the State of Jharkhand.

Therefore, this Court is of the view that what has been argued on behalf of State of Jharkhand, that the eligibility for the purpose of recruitment will come under the scope of Section 12 of the Act, 2008, is not sustainable.

57. Herein, the rule has been framed, by amending Rule 5 of Rules, 2015 by way of substitution of Rule 2 in Rules, 2021, inserting the phrase ‘in addition to the eligibility criteria’ by which the candidate is required to pass Matriculation/10th and Intermediate/10+2 examination from the recognized institutions situated within the State of Jharkhand. Since the additional qualification is not coming under the fold of eligibility and as such the same is outside the scope of Section 12 and, therefore, the provision which has been inserted to that effect cannot be construed to come under the scope of Section 12 of the Act, 2008.

58. This Court, on the basis of discussions made herein above, is of the view that Section 12 of the Act, 2008 does not confer power upon the State to deprive a class of candidate from participating in the process of selection, since the same will not come under the fold of implementing the provisions of the Act, 2008.

59. This Court, in the entirety of facts and discussions as also judicial pronouncements, is of the considered view that the impugned rules, as contained under Rules, 2021 are discriminatory on the touchstone of Article 14 of the Constitution of India not based upon intelligible differentia rather are unreasonable, and as such the Rule 2 and Rule 7 of the Rules, 2021 are held to be invalid, as the same are in teeth of Article 14 of the Constitution of India.

Accordingly, the issues framed by this Court are answered in favour of petitioners.

60. The question arises now that what will be the consequence, pertaining to the applications already invited of the candidates for their participation in the process of selection, as Rule 2 and Rule 7 of the Rules, 2021 have been declared to be invalid.

61. It requires to refer herein that this Court, considering the fact that serious challenge has been made to the validity of the Rules, has made the examinations/selection process being done as per Rules, 2021 subject to outcome to the writ petitions, vide order dated 01.12.2021. The relevant part of the order is quoted as under:

"As prayed, put up this matter on 21.12.2021 enabling the State to file appropriate counter affidavit and produce the concerned file for perusal of this Court showing under what circumstances those decisions have been taken by the State as it is being alleged by the writ petitioner that under the garb of these substitution/amendments in the concerned Rules, 100% reservation in State of Jharkhand is contemplated.

In above view of the matter, as serious challenge has been made to the validity of the concerned Rules being in the teeth of the provisions of the Constitution of India, we deem it desirable that all the exams/selection process being done in the concerned amended Rules would be subject to the result of this writ petition and this should be well reflected in the advertisement made for the purpose by the authorities who are engaged in selection process/examination conducting authority."

[Emphasis supplied]

62. Since, this Court has made the examination/selection process subject to the outcome of the instant writ petitions vide order dated 01.12.2021 and now the Rule 2 and 7 of the Rules, 2021 have been declared to be invalid by this Court, as such the consequence will be that the selecting agency (JSSC) would have to initiate the process of selection afresh.

63. Therefore, the respondents-State of Jharkhand as also the respondent-JSSC are directed to initiate a fresh process of selection.

64. Accordingly, the writ petitions stand allowed.

65. Consequent upon disposal of the writ petitions, the pending Interlocutory Application(s) stands disposed of.

66. The original record of proceeding, called for by this Court, be returned to the authority concerned.