CWP No. 6801 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 20th April, 2010. 1. CWP No. 6801 of 2008 Sudesh Rani ...Petitioner VERSUS State of Punjab and others ...Respondents 2. CWP No. 14181 of 2007 Navjit Kaur ..Petitioner Versus State of Punjab and others ..Respondents 3. CWP No. 15210 of 2007 Sukhraj Singh ..Petitioner Versus State of Punjab and others ..Respondents 4. CWP No. 8012 of 2008 Manjeet Singh ..Petitioner Versus State of Punjab and others ..Respondents 5. CWP No. 8296 of 2008 Sudesh Rani ..Petitioner Versus State of Punjab and others ..Respondents CWP No. 6801 of 2008 [2] 6. CWP No. 8278 of 2008 Parveen Lata ..Petitioner Versus State of Punjab and others ..Respondents 7. CWP No. 11690 of 2008 Gurpreet Singh ..Petitioner Versus State of Punjab and others ..Respondents 8. CWP No. 11650 of 2008 Kaushalya Rani ..Petitioner Versus State of Punjab and others ..Respondents 9. CWP No. 12344 of 2008 Gourav Goyal and others ..Petitioners Versus State of Punjab and others ..Respondents 10. CWP No. 18943 of 2008 Parvesh Kumari ..Petitioner Versus State of Punjab and others ..Respondents 11. CWP No. 19971 of 2008 Kamalpreet Kaler ..Petitioner Versus State of Punjab and others ..Respondents CWP No. 6801 of 2008 [3] 12. CWP No. 1140 of 2009 Kiran Deep Kaur ..Petitioner Versus State of Punjab and others ..Respondents 13. CWP No. 3900 of 2008 Smt. Lajjo Devi ..Petitioner Versus State of Punjab and another ..Respondents 14. CWP No. 4364 of 2008 Meenakshi Walia ..Petitioner Versus State of Punjab and others ..Respondents. 15. CWP No. 4776 of 2008 Rama Devi ..Petitioner Versus State of Punjab and others ..Respondents. 16. CWP No. 5032 of 2008 Kumari Neelam ..Petitioner Versus State of Punjab and others ..Respondents. 17. CWP No. 5184 of 2008 Sanjeev Singh ..Petitioner Versus State of Punjab and others ..Respondents. CWP No. 6801 of 2008 [4] 18. CWP No. 5843 of 2008 Harpreet Kaur ..Petitioner Versus State of Punjab and another ..Respondents 19. CWP No. 6183 of 2008 Smt. Tarsemo Devi ..Petitioner Versus State of Punjab and others ..Respondents 20. CWP No. 6221 of 2008 Arvinder Kaur ..Petitioner Versus State of Punjab and others ..Respondents. 21. CWP No. 6245 of 2008 Gagandeep and others ..Petitioners Versus State of Punjab and others ..Respondents 22. CWP No. 6627 of 2008 Rajwant Kaur ..Petitioner Versus State of Punjab and others ..Respondents. 23. CWP No. 6660 of 2008 Sandeep Kaur ..Petitioner Versus State of Punjab and others ..Respondents. CWP No. 6801 of 2008 [5] 24. CWP No. 6697 of 2008 Smt. Sunita Devi ..Petitioner Versus State of Punjab and others ..Respondents 25. CWP No. 7501 of 2008 Balraj Kaur ..Petitioner Versus State of Punjab and others ..Respondents. 26. CWP No. 7599 of 2008 Rajesh Kumar ..Petitioner Versus State of Punjab and others ..Respondents. 27. CWP No. 21415 of 2008 Darshan Singh and others ..Petitioners Versus State of Punjab and others ..Respondents --- CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL,CHIEF JUSTICE HON'BLE MR. JUSTICE JASBIR SINGH. 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present: Mr. Kapil Kakkar, Advocate, for the petitioner in CWP No. 6801 of 2008. Mr. H.S.Baath, Advocate, for the petitioner in CWP No. 14181 of 2007. Mr. C.L.Sharma, Advocate, for the petitioner in CWP No. 15210 of 2007. Dr. M.L.Sachdeva, Advocate, for the petitioners in CWP Nos. 6627, 7599, 8012, 8278, 11650, and 11690 of 2008. CWP No. 6801 of 2008 [6] Mr.. K.K.Garg, Advocate, for the petitioner in CWP No. 6660 of 2008. Mr. C.M.Munjal, Advocate, for the petitioner in CWP No. 8296 of 2008. Ms. Anu Chatrath, Advocate, for the petitioners in CWP No. 12344 of 2008. Mr. Manohar Dadwal, Advocate, for the petitioner in CWP No. 18943 of 2008. Mr. V.K.Shukla, Advocate, for the petitioners in CWP Nos. 19971 of 2008 and 1140 of 2009. Mr. Rajeev Kaswan, Advocate, for the petitioners in CWP Nos. 3900 and 6183 of 2008. Mr. G.S.Sandhu, Advocate, for the petitioner in CWP No. 4364 of 2008. Mr. R.N.Moudgil, Advocate, for the petitioner in CWP No.4776 of 2008. Mr. Raman Sharma, Advocate, for the petitioner in CWP No. 5032 of 2008. Mr. R.S.Manhas, Advocate, for the petitioners in CWP Nos. 5184, 6221, 6245 of 2008. Mr. Veneet Sharma, Advocate, for the petitioner in CWP No. 5843 of 2008. Mr. N.K.Nagar,Advocate, for the petitioner in CWP No. 6697 of 2008. Mr. R.K.Chopra, Sr. Advocate with Ms. Maninder, Advocate, for the petitioner in CWP No. 7501 of 2008. Mr. K.V.Singh, Advocate, for the petitioners in CWP No. 21415 of 2008. Mr. Pardeep Bajaj, Advocate, for respondent No. 5 in CWP No. 6660 of 2008. Mr. H.S. Mattewal, Advocate General, Punjab with Mr. Amol Rattan Singh, Addl. A.G. Punjab for the respondent-State of Punjab in all the petitions. ----- CWP No. 6801 of 2008 [7] MUKUL MUDGAL C.J. 1. This judgment will dispose of Civil Writ Petitions No. 14181 and 15210 of 2007, 3900, 4364, 4776, 5032, 5184, 5843, 6183, 6221, 6245, 6627, 6660, 6697, 6801, 7501, 7599, 8012, 8296, 8278, 11690, 11650, 12344, 18943, 19971, 21415 of 2008 and 1140 of 2009. Since common questions are involved, the facts from CWP No. 6801 of 2008 are taken as illustration. In all these writ petitions, selection to 4000 posts of Educational Services Providers and 9998 posts of Teaching Fellows (against the posts of JBT/ETT Teachers), is in dispute. First we will deal with Civil Writ Petitions No. 14181 and 15210 of 2007, 6801, 8012, 8296, 8278, 11650, 11690, 12344, 18943 and 19971 of 2008 and 1140 of 2009, wherein challenge is to the awarding of 5 additional marks to the candidates who passed their 8th and 10th examination from rural areas. 2. The State of Punjab advertised 4000 Posts of Educational Services Providers vide advertisement dated August 29, 2007 (P-6), against a consolidated pay of Rs. 5400/- per month. The last date for receipt of applications, of the eligible candidates, was fixed as September 17, 2007. In the same manner, by advertisement dated September 5, 2007, 9998 posts of Teaching Fellows were advertised for a period of 3 ½ years against a consolidated salary of Rs. 4550/- per month. The last date to receive applications was fixed as September 30, 2007. 3. In the advertisement for the posts of Educational Services Providers, following mode of selection was provided: CWP No. 6801 of 2008 [8] “Mode of selection: The recruitment shall be strictly made to respective categories only on merit, without any recruitment test or interview marks. Merit will be prepared by adding the percentage of marks obtained in basic minimum prescribed academic qualification and basic minimum prescribed professional qualification and higher qualification and experience as detailed below:- 1. Minimum prescribed qualification (a) B.A./ Bsc (in relevant subjects) 35% of the percentage of the total marks achieved in the Basic Academic qualification: :35 (b) B.T./B.Ed. 35% of the percentage of the total marks achieved in the Professional qualification: :35 70 Higher Qualification Master Degree i.e. M.A./M.Sc/ M.Com / M.Ed. (a) Ist Division: 8 Marks (b) 2nd Division 6 Marks © 3rd Division 4 Marks 3. Rural Area Maximum Marks 5 Marks 4. Experience Maximum Marks 7 Marks Note: Consolidated 5 marks will be given to the candidates who have passed both Middle and Matric examination from the rural schools. For passing these two classes from the rural area, they have to submit a certificate of that school falling in rural area at the time of passing 8th as well as 10th class issued by the Head of the School, duly counter signed by concerned DEO. E. Basic Qualifcation and Professional Qualification:- (i)Graduate from a recognized University with English as an elective subject in all the three years of Graduation. (ii)With teaching of English in B.Ed.” 4. Similar provision was made for selection to the 9998 posts of Teaching Fellows, advertised on September 5, 2007. In the advertisements, rural area was defined as under: CWP No. 6801 of 2008 [9] “Rural area is defined as on the date, in which Gram Panchayat exists, i.e., at the time of passing 8th and 10th classes.” 5. In all these writ petitions, primary grievance of all the petitioners is to the award of 5 additional marks to the candidates, who have passed 8th and 10th classes examinations from Schools, situated in the rural area. It has been alleged that the said weightage runs contrary to the provisions of Articles 14 and 16 of the Constitution of India and as such cannot be sustained. It was further averred that the State Government has failed to set up a rational basis and the weightage to rural students discriminates against the candidates, who have not passed 8th and 10th classes examinations from rural areas. In this writ petition, it was further stated that by issuing corrigendum Annexures P- 7 to P-9 dated August 31, 2007, September 4, 2007, and September 14, 2007, respectively, the State Government has wrongly amended qualification for the posts in question, which runs contrary to the Punjab State Education Class III (School Cadre) Rules, 1978. 6. Upon notice, reply has been filed by the State of Punjab in all these writ petitions. At the time of arguments, it was agreed by counsel for the parties that the reply filed in CWP No. 5723 of 2008, which is exhaustive one, be read as a common reply to all other connected writ petitions. In the reply filed by the State, a preliminary objection has been raised that after putting in appearance before the Interview Board and taking a chance, it is not open to the petitioners to lay challenge to the procedure adopted by the State for making selection to the posts in question. In support of the above plea, reliance was placed upon the ratio of the judgments of the Hon'ble Supreme CWP No. 6801 of 2008 [10] Court in Madan Lal and others V. State of Jammu and Kashmir and others , AIR 1995 Supreme Court 1088, and Dr. G.S.Sarna V. University of Lucknow and others, AIR 1976 Supreme Court 2428. 7. On merits, an attempt was made to justify award of weightage to those candidates who have passed 8th and 10th classes examinations from the rural areas. It was specifically stated that it was not a case of any unfair weightage for those rural candidates, taking note of the conditions, in which rural candidates are living. Only a very small benefit has been provided to them, so that they may compete with others, who are better situated. It was further submitted that due to terrorism in Punjab, rural areas were the worse affected, as most of the terrorist activities had taken place in the rural areas of the State of Punjab and rural education centres were the epicentre from where the terrorists exploited the youths for their motives. Those, who were affluent, had shifted their residence to the urban areas. Others, who could not afford to do so, had no option but to stay back in the rural areas. It was further stated that wards of those families and educational institutions suffered in all respects during that period. It was further stated that by granting weightage of 5 marks to the candidates from the rural areas, who are definitely backward in all respects, an attempt has been made to give effect to the Directive Principles of State Policy as enshrined in the Constitution. Specific reliance has been placed upon Article 38(2) which provides for promotion of social order, it reads thus: “The State shall, in particular, strive to minimize the inequalities in income, and endeavors to eliminate inequalities in status, facilities and opportunities, not only amongst the individuals, CWP No. 6801 of 2008 [11] but also amongst the groups of people residing in different areas or engaged in different vocations.” 8. To support the afore-said contention, reliance has been placed upon the observations made by the Hon'ble Supreme Court in Indira Nehru Gandhi v. Raj Narain, AIR 1975 Supreme Court 2299, I.R. Coelho v. State of Tamil Nadu , AIR 2007 Supreme Court 861 and Shrinivasa Theater v. Government of Tamil Nad u, AIR 1992 Supreme Court 999. 9. It was further stated that identical treatment in unequal circumstances would amount to inequality and the same was never the mandate of Articles 14 and 16 of the Constitution of India. To support the plea, that the State has the power, on the basis of facts / evidence, to grant benefit to a group or group of persons for their upliftment, reliance was placed upon observations made by the Hon'ble Supreme Court in Ashutosh Gupta v. State of Rajasthan , AIR 2002 Supreme Court 1533 to the following effect:- “6. The concept of equality before law does not involve the idea of absolute equality amongst all which may be a physical impossibility. All that Article 14 guarantees is the similarity of treatment and not identical treatment. The protection of equal laws does not mean that all laws must be uniform. Equality before the law means that among equals the law should be equal and should be equally administered and that the likes should be treated alike. Equality before the law does not mean that things which are different shall be treated as though they were the same. It is true that Article 14 enjoins that the people similarly situated should be treated similarly but what amount of dissimilarity would make the people disentitle to be treated equally, is rather a vexed question. A Legislature, which has to deal with diverse problems arising out of an infinite variety of human relations must of necessity, have the power of making special laws to attain particular CWP No. 6801 of 2008 [12] objects; and for that purpose it must have large powers of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not 'per se' amount to discrimination within the inhibition of the equal protection clause. The State has always the power to make classification on a basis of rational distinctions relevant to the particular subject to be dealt with. In order to pass the test of permissible classification, two conditions must be fulfilled, namely(1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the group, and (ii) that that differentia must have a rational relation to the object sought to be achieved by the Act. What is necessary is that there must be a nexus between the basis of classification and the object of the Act. When a law is challenged as violative of Article 14, it is necessary in the first place to ascertain the policy underlying the statute and the object intended to be achieved by it. Having ascertained the policy and the object of the Act, the Court has to apply a dual test in examining the validity, the test being, whether the classification is rational and based upon an intelligible differentia which distinguishes persons or things that are grouped together from others that are left out of the group, and whether the basis of differentiation has any rational nexus or relation with its avowed policy and objects. In order that a law may be struck down under this Article, the inequality must arise under the same piece of legislation or under the same set of laws which have to be treated together as one enactment. Inequality resulting from two different enactments made by two different authorities in relation to the same subject will not be liable to attack under Article 14. It is well settled that Article 14 does not require that the legislative classification should be scientifically or logically perfect. If we examine the impugned provisions of the Emergency Recruitment Rules from the aforesaid standpoint the conclusion is irresistible that the aforesaid set of Rules have been framed for a specific recruitment to the Administrative Service. The provision of Rule 25 dealing with the seniority has been specifically designed to meet all situations under which people from different walks of life could be recruited to the Rajasthan Administrative Service under the Emergency Recruitment Rules. The law-making CWP No. 6801 of 2008 [13] authority must be presumed to have examined pros and cons in making the aforesaid provision for seniority in the cadre which is in pari materia with similar provisions for recruitment to the Indian Administrative Service and, therefore, it is difficult for us to hold that the aforesaid provision is discriminatory in nature.” 10. To further justify weightage to the rural candidates, reliance was placed upon observations made by the Hon'ble Supreme Court in Kailash Chand Sharma v. State of Rajasthan, (2002) 6 Supreme Court Cases 562, and M. Nagaraj and others v. Union of India and others, (2006) 8 Supreme Court Cases 212 and observations made by a Division Bench of this Court in Mahender Kumar and others v. State of Haryana and others, (Civil Writ Petition No. 13887 of 2006), decided on February 27, 2008 (Annexure P-13 with this writ petition). 11. To support the plea that the candidates in the rural areas are a separate class, reliance was placed upon a scientific study conducted by the University of Patiala through its Department of Economics and Centre for Research in Economic Change, which was published in September, 2006, under the heading 'RURAL STUDENTS IN UNIVERSITIES OF PUNJAB: AN EXPLORATORY STUDY' ( hereinafter referred to as 'the study'). It was averred that as per the said study, in the four Universities in the region, namely- Panjab University, Chandigarh, Punjabi University, Patiala, Guru Nanak Dev University, Amritsar; and Punjab Agricultural University, Ludhiana, along with their regional centres, total number of students was 22,360 and proportion of rural students in the afore-said Universities and the Regional Centres constituted a meagre 4.7 % only CWP No. 6801 of 2008 [14] of that strength, i.e. 911 students only. To prove the afore-said averment, reliance was placed upon a study in the form of a record. The same reads as under:- “Number of Students in Universities of Punjab (2005-06): University Campus and Regional Centre. Total Enrollment Rural Students Number Percentage Boys Girls Over all Boys Girls Over all Boy s Girls Over all (a) Campus 9381 (50.44) 9217 (49.56) 18598 (100) 451 (64.80) 245 (25.20) 696 (100.00) 4.81 2.66 3.74 (b) Regional Centres 2560 (68.05) 1202 (31.95) 3762 (100) 141 (65.58) 74 (34.42) 215 (100.00) 5.51 6.16 5.72 Total (a+b) 11941 (53.40) 10419 (46.60) 22360 (100) 592 (65.98) 319 (35.02) 911 (100.00) 4.96 3.06 4.07 Table 3.2 Rural Students in Universities of Punjab: University-wise Scenario. PUNJABI UNIVERSITY PATIALA Total Enrollment Rural Students Number Percentage Boys Girls Over all Boys Girls Over all Boys Girls Over all (a) Campus 2067 2184 4251 217 125 342 10.5 5.72 8.05 (b) Regional Centres 597 433 1030 62 27 89 10.39 6.24 8.64 Total (a+b) 2664 2617 5281 279 431 431 10.47 5.81 8.16 GURU NANAK DEV UNIVERSITY AMRITSAR Total Enrollment Rural Students Number Percentage Boys Girls Over all Boys Girls Over all Boys Girls Over all (a) Campus 2370 2513 4883 89 55 144 3.76 2.19 2.95 (b) Regional Centres 1472 587 2059 41 24 65 2.79 4.09 3.16 Total (a+b) 3842 3100 6942 130 79 209 3.38 2.55 3.01 CWP No. 6801 of 2008 [15] PANJAB UNIVERSITY, CHANDIGARH . Total Enrollment Rural Students Number Percentage Boys Girls Over all Boys Girls Over all Boys Girls Over all (a) Campus 3842 3742 7584 90 31 121 2.34 0.83 1.6 (b) Regional Centres 491 182 673 38 23 61 7.74 12.64 9.06 Total (a+b) 4333 3924 8257 128 54 182 2.95 1.38 2.2 PUNJAB AGRICULTURAL UNIVERSITY LUDHIANA. total Enrollment Rural Students Number Percentage Boys Girls Over all Boys Girls Over all Boys Girls Over all (a) Campus 1102 778 1880 55 34 89 4.99 4.37 4.73 Note: Universities of Punjab here means four Universities, viz, Punjabi University, Patiala, Panjab University, Chandigarh, Punjab Agricultural University, Ludhiana and Guru Nanak Dev University, Amritsar. Source: Primary Survey.” 12. On the strength of facts and figures, shown above, it was stated that the proportion of rural students in the Universities is far less as compared to the rural population, which is 66.05 % in the State (2001 census). Further reference was made to the disparities existing in rural and urban areas in terms of infrastructure. In that regard, it was stated as under:- “There exists a big gap in terms of the facilities, services and opportunities available to the rural and urban people. People living in cities/ towns have better income earning opportunities, better transportation & communication means, etc. On the other hand, the villagers are deprived of such facilities and consequently lagged behind than their urban counterparts. Another factor revealed by the study made by the Punjabi University, Patiala, Department of Economic and Centre for Research in Economic change as referred to above is that a very high proportion of students, who join CWP No. 6801 of 2008 [16] the Universities belong to urban area and this is on account of that the students of rural area do not have better economic conditions and also do not have better facilities as compared to the students belonging to urban area. The schools affiliated to the CBSE/ ICSE are the English Medium Schools and are too costly. Thus these schools are most likely beyond the access and affordability of majority of rural students coming from weaker section of society which mainly form part of rural area. There is a strong relationship between the Education level of Parents and Children. It is in this context that the urban children are having an edge over their rural counterparts. Since most of the present day rural parents are either uneducated or having a very low level of Education, their children are borne to be adversely affected by this phenomena. More so, since education is the ladder for socio economic upliftment, the educated parents have a better capacity to finance the Education of their children. The proportion of fathers and mothers having postgraduate and having professional degrees was 5.38 percent and 1.87 percent; and 11.31 percent and 3.95 percent respectively as per the figures given in the aforesaid report.” 13. It was also stated that marks were granted to rural candidates taking note of their limitations and handicap. To say that inflow of the rural candidates in the public service in the State of Punjab is virtually negligible, reference was made to an affidavit, filed by the Director of Public Instructions (EE), Punjab, Chandigarh, on August 25, 2008 in C.W.P. No. 5723 of 2008, relevant extract of which reads thus: “ITEM NO.1: NUMBER OF PERSONS WHO HAVE ENTERED CIVIL SERVICES FROM RURAL AREAS IN PUNJAB SINCE 2005 S.No NAME OF THE DEPTT. NO. OF PERSONS IN CLASS I & II CATEGORIES 1 Department of Controller Printing and Stationery NIL CWP No. 6801 of 2008 [17] S.No NAME OF THE DEPTT. NO. OF PERSONS IN CLASS I & II CATEGORIES 2 Department of Information and Public Relation Punjab 1 3 Department of Technical Education and Industrial Training (Regular)Nil (Contract Basis) 23 4 Department of Forests NIL 5 Department of Co operation NIL 6 Department of Defence Service Welfare Punjab NIL 7 Department Sainik Welfare Punjab NIL 8 Department of Education Punjab NIL 9 Department of Health and Family Welfare 4 10 PCS Executive 12 out of 46 since 1995. ITEM NO: 2 xxx xxx xxx ITEM NO 3:SHORTAGE OF ETT TEACHERS IN RURAL AND URBAN AREAS OF GOVT SCHOOLS IN THE STATE OF PUNJAB 1. POSITION OF ETT TEACHERS IN PRIMARY SCHOOLS ACCORDING TO ADVERTISED POSTS/ AND AS ON 31ST JULY 2008 S.NO. TOTAL NUMBER OF VACANCIES/ SHORTAGE OF TEACHERS TOTAL NUMBER OF VACANCIES/ SHORTAGE OF TEACHERS IN RURAL AREAS TOTAL NUMBER OF VACANCIES/ SHORTAGE OF TEACHERS IN URBAN AREAS