IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 10..6..2008 Coram: The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W. P. Nos. 3156 of 2003, 1955 and 13520 of 2004, 40274 of 2006 and 1521 and 2080 of 2008 and W.P.M.P. No.2157 of 2004 in W.P. No. 1955 of 2004, W.P.M.P. No. 15859 of 2004 in W.P. No. 13520 of 2004, M.P. Nos. 1 and 2 of 2006 in W.P. No. 40274 of 2006 and M.P. No. 1 of 2008 in W.P. No. 1521 of 2008 W.P. No. 3156 of 2003: Union of India Rep. by Director of Education Directorate of Education Pondicherry ... Petitioner vs. 1. The Central Administrative Tribunal Rep. by Registrar Chennai 2. Sindhu Jayarajan .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records pertaining to order of the Tribunal in O.A. No. 168 of 2002 dated 30.8.2002 and quash the same. For Petitioner : Mr. T. Murugesan, GP (P) Assisted by Mr. Syed Mustafa, Spl.GP For R 2 : Mr. V. Ajay Kumar COMMON ORDER K. CHANDRU, J. Heard the arguments of Mr. Murugesan, learned Government Pleader (Puducherry), assisted by Mr. Syed Mustafa, learned Special Government Pleader (Puducherry) representing the Union of India, Government of Puducherry, Ms. R. Vaigai, Mr.V.Ajay Kumar, Ms. G. Thilakavathy learned counsels and Mr. K. Venkataramani, learned Senior Counsel leading Mr.M.Muthappan appearing for the private parties and perused the records. 2. In this batch of writ petitions, the question raised is whether the employment notifications issued by the Government of Puducherry requiring the candidates to produce Certificate of Residence by birth, Certificate of Residence for having residence for the last five years in Puducherry before the date of notification and / or Service Certificate obtained from the respective Head of Office in respect of children / spouse of State Government servants who were working on regular basis as a pre-requisite for considering their applications, is legally permissible. 3. In five writ petitions the Central Administrative Tribunal (CAT) had held that the notification making the production of the certificate as a condition precedent is unconstitutional and violative of Articles 16(2) of the Constitution and granted relief to the contesting respondents. In W.P. No. 40274 of 2006, the grievance of the petitioner was that such a requirement is valid in law and therefore, it has to be strictly enforced and when the CAT negatived the said claim, he has filed independent writ petition challenging the order of the CAT. 4. Since the issues raised in all the writ petitions are common, they were dealt with together and a common order is being passed. 5.1. In W.P. No. 3156 of 2003, the contesting respondent (Tmt. Sindhu Jayarajan) was in possession of M.Sc. Degree in Chemistry as well as M.Phil together with a Degree in Education. Pursuant to the notification in April 2000 issued calling for the post of Lecturers in Higher Secondary Schools run by the Government of Puducherry, she submitted her application. The employment notification, apart from the other requirements, required the candidates to produce the following certificates:- a. Certificate of residence by birth issued after 31.03.97 b. Certificate of residence obtained for having a continuous residence for the last five years as on 31.03.2000 c. Service Certificate obtained from the respective Head of Office in respect of children / spouse of State Government servant. She submitted her application but no appointment was made pursuant to the said notification. 5.2. Subsequently, on 26.5.2000, another notification was issued calling for applications from the residents of the Union Territory of Puducherry for the post of Secondary Grade Teachers (SGT). Since the petitioner was the daughter of a State Government servant, she was eligible to apply for the said post. Though she was selected and given an appointment order, she was not permitted to join duty on the specious plea that her father was not a regular employee of the Government but only a part-time employee. 5.3. Thereafter, on 09.01.2002, a further notification was issued calling for applications for the post of Lecturers for Higher Secondary School and School Assistants Grade II, Physical Education Teachers (PET) and SGTs. In this notification, it was stated that only children / spouse of State Government servants who are working on regular basis alone were made eligible to apply. The respondent submitted her application dated 25.01.2002 and knowing fully that the same may be rejected, she filed O.A. No. 168 of 2002 before the CAT and sought for a direction to consider her application. By an interim order dated 19.3.2002, the CAT directed the petitioner to keep one post of Lecturer vacant pending disposal of the O.A. A reply statement was filed on behalf of the petitioner wherein the prescription of residential qualification was properly justified. 5.4. The CAT, by its order dated 30.8.2002, rejected the stand of the petitioner Government and directed the Government to consider her appointment in accordance with the notification. In paragraph 4 of the order, the CAT held as follows:- "Rejection of applicant's candidature on the ground that her father is a part time employee and consequent denial of appointment is a discrimination on the ground of residence. Whether a person is a full time worker or part time worker he works for the Government and is ordinarily residing in the place where the office in which he works is situated. Therefore, applicant's father is only a part- time worker and is not ordinarily residing in Pondicherry is not accepted and the respondent's rejection on this ground is not sustainable in law." It is against this order, the petitioners have come forward to file the present writ petition and the same was admitted on 03.02.2003 and an interim stay was also granted by this Court which was subsequently modified. 6.1. In W.P. No. 1955 of 2004, the second respondent is one Tmt.R.Vanitha. She had obtained M.A. Degree in English Literature with B.Ed. Degree. Pursuant to the advertisement dated 09.01.2002 issued by the petitioner, she had applied for the post of School Assistant Grade II as well as for the post of SGT. Her husband was employed as a Lecturer in Mathematics in Government Tagore Arts College at Puducherry. He was employed as an hourly rated Lecturer from 1992 and from 1996, he was working on a consolidated pay. She is also a resident of Puducherry from 26.6.1998, ie., the date on which she got married. She got an intimation stating that she was provisionally selected for the post of SGT and her name was kept in the waiting list. She appeared for certificate verification but thereafter, she did not hear anything from the petitioner Government. Therefore, she filed an Original Application being O.A. No. 114 of 2003 seeking for a direction to appoint her in the post of School Assistant Grade II or SGT. 6.2. The CAT, at the time of admission, granted a direction to the petitioner State to keep one post vacant pending the O.A. The petitioner Government filed a reply statement in August 2003 in which it was stated that the respondent's case will not be considered as her husband was only employed on consolidated wages and not on regular basis. The CAT rejected the stand of the petitioner State and after following the judgment of the Supreme Court in Kailash Chand Sharma v. State of Rajasthan and others [2002 (6) SCC 562], allowed the O.A. and directed the petitioner Government to consider the case of the second respondent and give her an appointment order in case any person who had obtained lesser marks than her, was given an appointment. Aggrieved by the said direction, the present writ petition was filed. 6.3. Notice was ordered on 11.02.2004 and an order of status quo was granted till 19.02.2004. Subsequently, by an order dated 18.11.2004, this Court modified the interim order in case of the respondent in W.P. No. 3156 of 2003 as well as the second respondent in this writ petition and made the following order:- "Without prejudice to the contentions raised in the writ petition the order passed by the Tribunal may be implemented in so far as the present second respondent is concerned. It is however made clear that in case the writ petition is allowed the second respondent cannot claim any right on the basis of such interim appointment. The appointment order should be issued within two weeks from today." 7.1. W.P. No. 13520 of 2004 is filed against the order of the CAT made in O.A. No. 717 of 2003. The second respondent Simeera obtained Bachelor Degree in Physical Education and she was born in Mahe. Her father was a permanent employee in the Sub-Treasury office at Mahe. Though her father was employed in Mahe, he was having his residence in Azhiyur Village in Kerala State. During the year 1999, she got married to one P.K. Vivek, who was a resident of Thalachery in Kerala State. Pursuant to the notification dated 09.01.2002, she made an application. She received a letter on 03.5.2002 to produce a Residential Certificate. She accordingly produced a Service Certificate about her father's employment as well as a Nativity Certificate. She also appeared for a written test on 12.7.2003 and obtained 71% marks. She was given a letter dated 12.7.2003 to appear and produce the certificate which she did accordingly. Once again, she was asked to produce a Residential Certificate for having lived in Puducherry State for five years. She was told that her father's certificate cannot be accepted as she was already married to a person, who was not a resident of Puducherry State. She was informed by a letter dated 09.8.2003 that she is not eligible for any appointment due to the non-compliance of residential requirement. As against the said order, she filed O.A. No. 717 of 2003. The petitioner State filed a reply statement in October 2003. 7.2. The CAT held by its order dated 07.01.2004 that the Rule relating to residential requirement was ultra vires of Article 16(2) of the Constitution in the absence of any parliamentary law on the subject. Apart from relying upon Kailash Chand Sharma's case (cited supra), the CAT also relied upon the judgment of the Supreme Court in Harshendra Choubisa and others v. State of Rajasthan and others [2002 (6) SCC 393] and consequently gave a direction to the petitioner State to consider the case of the respondent for the post of PET without the residential requirement. It is against the said order, the present writ petition has been filed. 7.3. The writ petition was admitted on 14.6.2004 and by an interim direction, this Court directed the petitioner to implement the order of the CAT without prejudice to the rights of both parties. Thereafter, the petitioner Government filed Review Application No. 32 of 2004 and this Court, by an order dated 07.10.2004, directed the Government to comply with the order and accordingly, by an order dated 08.10.2004, the said respondent was given an order of appointment as a Physical Education Teacher pending the outcome of the result in the writ petition. 8.1. In W.P. No. 40274 of 2006, the petitioner was qualified to hold the post of School Assistant Grade II. He was a native of Yanam and pursuant to the advertisement dated 10.9.2004, he had applied for the said post. It was his case that respondents 3 and 4 were not residents of Yanam, but, however, were appointed by orders dated 13.5.2005 and, therefore, he moved the CAT with O.A. No. 485 of 2005. 8.2. The CAT, by its order dated 25.8.2006, found that the respondents 3 and 4 had secured higher marks than the petitioner and, therefore, he was not selected. It also found that the third respondent was a resident of Yanam since the date of her marriage on 19.10.2002 and the fourth respondent was living in Yanam after her marriage in the year 2001. In any event, the CAT held that the issue relating to requirement of residential qualification is pending before this Court in W.P. No. 3156 of 2003 and 1955 of 2004 and hence dismissed the O.A. and directed the petitioner to await for the judgment of this Court. Aggrieved by the said order of the CAT, the petitioner has filed the present writ petition, which was admitted on 25.10.2006. 9.1. W.P. No. 1521 of 2008 is filed by the petitioner Government against the order of the CAT dated 19.4.2007 made in O.A. No. 134 of 2006. The second respondent herein had applied for the post of School Librarian pursuant to the notification dated 20.7.2005. The second respondent was not a Government servant but was working in a private concern. Her application was not considered since she had only a residential proof in having resided for a period of 2 years and 11 months and not for 5 years as prescribed. 9.2. Against the non-selection, she filed an O.A. before the CAT and the CAT, by its order dated 19.4.2007, after following its earlier order, directed the consideration of the case of the second respondent for the post of School Librarian. Even though this order was dated April 2007, the Government of Puducherry chose to file the writ petition after a period of eight months. Therefore, when the matter came up for admission, we directed private notice to be given to the counsel for the second respondent. Pursuant to the notice, Mr. V. Ajayakumar, took notice for the second respondent and hence, the matter was directed to be included in the present batch. 10.1. In W.P. No. 2080 of 2008, the second respondent had applied for the post of Staff Nurse pursuant to the notification dated 17.12.2004. The second respondent sent her application on 29.4.2004 claiming that she was a resident of Karaikkal. When she did not have the requirement of 5 years residential status, she moved the CAT challenging paragraph 10 of the advertisement dated 17.12.2004 and also for a consequential direction to consider her case. A reply statement was filed in February 2006 by the petitioner Government. 10.2. The CAT, after following its earlier order in O.A. No. 114 of 2003, allowed the O.A. and directed the petitioner Government to consider the case of the respondent. 10.3. When this matter came up for admission, since the issues raised in this writ petition are identical to the other matters grouped in this batch, we directed the Registry to list this writ petition also in this group. 11. On behalf of the Government of Puducherry, Mr.T.Murugesan, learned Senior Counsel and Government Pleader made the following submissions:- (a) Article 16(2) of the Constitution can be pressed into service in case of a discrimination made only on grounds of residence. (b) The word 'only' found in Article 16(2) gives a scope for special classification based on other factors, such as social, cultural and linguistic features. (c) The judgment of the Supreme Court in Kailash Chand Sharmas case (cited supra) and Harshendra Choubisa's case (cited supra) do not prohibit special classification based on region or area. (d) The Union Territory of Puducherry comprised of four geographical regions. Pondicherry and Karaikkal are situated within the Tamil Nadu State and while Mahe is situated in Kerala State, Yanam is in Andhra Pradesh. While in the first two areas, Tamil is the language, in Mahe, it is Malayalam and Yanam, it is Telugu. The custom of each region is different from one another. Therefore, the Government of Puducherry can make residential requirement as a pre-condition for any employment. (e) The Union Territory of Puducherry was ceded by the Republic of France on 21.10.1954 and these French Establishments came to be administered w.e.f. 16.8.1962 by the Pondicherry Administration Act, 1962. Under Section 4(2) of the said Act, the Central Government has been given the power within three years to make adaptation or modification of any law and on such adaptation, the said law will be brought into force . Since the Central Government has not made any law within the time stipulated and the existing laws of the French region will continue to apply without being offended by Article 16(2) of the Constitution. (f) The requirement of duration or concept of residence is uniform to entire populous within the Territory of Puducherry and, therefore, it is not violative of Article 14 of the Constitution. 12. Per contra, the learned counsels for the contesting respondents placed heavy reliance upon the judgments of the Supreme Court in Kailash Chand Sharma's case (cited supra) and Harshendra Choubisa's case (Cited supra) and contended that the residential requirement has no relevance to the Government employment and such a prescription is unconstitutional and violative of Articles 14 and 16 of the Constitution. They also submitted that any classification made on the basis of residence will be hit by Article 16(2) of the Constitution unless law is made by the Parliament in terms of Article 16(3) of the Constitution. There is no such law made by the Parliament in respect of the Union Territory of Puducherry. They also submitted that the stand of the Government of Puducherry basing upon the agreement with the Republic of France r/w Section 4(2) of the Puducherry Administration Act 1962 has no relevance and such specious plea cannot stand in the light of the overriding effect of the Constitution of India provided under Article 13 of the Constitution. 13. In the light of the rival submissions, it is necessary to deal with the contentions raised by both sides. 14. It is necessary to refer to Articles 16(1) to 16(3) for better appreciation of the legal contentions raised herein. "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." 15. In Kailash Chand Sharma's case, the Supreme Court though permitted a classification based on region, but it should be based upon empirical data or survey or scientific study and not on assumptions as to the existence of the state of affairs. It also held that offering employment in the State Government to the resident of particular district will be hit by Article 16 (3) of the Constitution and the word 'only' found in Article 16(2) means that no violation results if factum of residence is taken into account in addition to other relevant factors. 16. The relevant passages found in paragraphs 11, 13 and 14 may be usefully extracted below: Para 11: "The first and foremost question that would arise for consideration in this group of appeals is, whether the circular dated 10-6-1998 providing for bonus marks for residents of the district concerned and the rural areas within that district is constitutionally valid, tested on the touchstone of Article 16 read with Article 14 of the Constitution. It is on this aspect, learned Senior Counsel appearing for the candidates concerned have argued at length with admirable clarity, making copious reference to several pronouncements of this Court. There can be little doubt that the impugned circular is the product of the policy decision taken by the State Government. Even then, as rightly pointed out by the High Court, such decision has to pass the test of Articles 14 and 16 of the Constitution. If the policy decision, which in the present case has the undoubted effect of deviating from the normal and salutary rule of selection based on merit is subversive of the doctrine of equality, it cannot sustain. It should be free from the vice of arbitrariness and conform to the well- settled norms, both positive and negative, underlying Articles 14 and 16, which together with Article 15 form part of the constitutional code of equality." Para 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. Para 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." 17. In Harshendra Choubisa's case, the supreme Court held that the classification on the basis