Rajendra Pandurang Pagare and Sk. AnisoddhIn Sk. KamroddhIn Vs. the State of Maharashtra Through Chief Secretary, - Court Judgment

Excerpt:
service - appointment - principles of equality - violation of - reference - maharashtra project affected persons rehabilitation act, 1999 - some project affected persons vide writ petition challenged advertisement issued by the district collector and the district selection committee for jalgaon, with regard to requirement of submitting application and competing with other candidates from the said category as provided in the said advertisement - division bench held that project affected persons were not required to go through regular selection process, for appointments to the posts from 'priority quota' offered to them - hence, the present reference - whether project affected persons can be appointed without advertising the posts, ignoring their qualifications and merit - held,.....orderb.r. gavai, j.1. the following issue is referred to this larger bench:whether project affected persons can be appointed without advertising the posts, ignoring their qualifications and merit.2. writ petition no. 7472/2007 was filed in this court by some project affected persons, challenging the advertisement dated 17th august 2007, issued by the district collector, jalgaon, and the district selection committee for jalgaon, challenging the requirement of submitting application and competing with other candidates from the said category as provided in the said advertisement. a direction was also sought to fill in 5% of the posts of clerk-cum-typist and talathi from the project affected persons category, on the basis of seniority as mentioned in the register maintained by the respondent.....

Judgment:
ORDER

B.R. Gavai, J.

1. The following issue is referred to this Larger Bench:

Whether project affected persons can be appointed without advertising the posts, ignoring their qualifications and merit.

2. Writ Petition No. 7472/2007 was filed in this court by some project affected persons, challenging the advertisement dated 17th August 2007, issued by the District Collector, Jalgaon, and the District Selection Committee for Jalgaon, challenging the requirement of submitting application and competing with other candidates from the said category as provided in the said advertisement. A direction was also sought to fill in 5% of the posts of Clerk-cum-Typist and Talathi from the project affected persons category, on the basis of seniority as mentioned in the register maintained by the respondent No. 2 (District Collector, Jalgaon).

3. The Division Bench of this court, after considering the provisions of the Maharashtra Project Affected Persons Rehabilitation Act, 1999 (For short, hereinafter referred to as 'the said Act') and various Government Resolutions/Circulars issued in that regard, upheld the contention of the petitioners, that the project affected persons were not required to go through regular selection process, for appointments to the posts from 'priority quota' offered to them by the said Act, and allowed the petition with the following directions:

We, therefore, allow the writ petition although not strictly in terms of prayer clauses.

(1) We uphold the contention advanced on behalf of the petitioner, that so far as appointments of PAPs to 5% priority quota, they are not required to apply, as if open market candidates; in response to an advertisement nor they are required to compete with open market candidates. They are also not required to compete between themselves and ordinarily they should be appointed in order of seniority. The only occasion for making an exception would be for observation of compartmentalised reservations e.g. if there are 10 posts in a Department for PAPs category and 5 posts are already filled in by open category and, therefore, there are vacancies only of reserved category, open category PAP in the wait list will have to make a room for candidate below him of reserved category.

(2) The recruitment, if any, carried out by the respondents pursuant to advertisement dated 17-8-2007, so far as it relates to PAPs category, must be held vitiated and quashed.

(3) In the light of view taken by us as above, it is desirable to direct learned A.G.P. to place a copy of this judgment before the Chief Secretary of the State for appropriate directions to all appointing authorities referred in Clauses (a) and (b) of Sub-section (6) of Section 10 of Act XI of 2001. They should be directed to:

(i) Take an assessment of total cadre strength in Class III and IV (Class 'C' and 'D') (non technical) of each Departments, find out how many seats are available to PAPs as 'priority quota' and how many are vacant.

(ii) For vacancies identified, all the appointing authorities should ask for the names of PAP candidates registered with Collector/Resettlement Officer, who are eligible for appointment as per rules (by giving due consideration to social reservations i.e. to vacancies of reserved category, the first candidate from that category in the seniority list should be sponsored) and issue appropriate appointment orders to such candidates sponsored from seniority list.

(iii) Now onwards there should be no need to advertise the vacancies available for PAPs and appointments of PAPs should be carried out strictly in accordance with the instructions so far issued by the Government from time to time, i.e. strictly from the seniority list maintained by Collector/Resettlement Officer on verifying the eligibility according to rules for the post and without any competitive examination.

(iv) The exercise of identifying the vacancies and filling those, all over the State and with all appointing authorities, should be completed within a period of 18 months from today.

(4) Needless to say that benefit of observations and directions in this judgment should be available to all the PAPs irrespective of the fact that they are not party to present petition.

(5) Rule made absolute accordingly.

4. Writ Petition No. 6100 of 2008 came to be filed before this court, challenging the order of termination from service of the petitioner, dated 31st July 2008, whose services came to be terminated by the District Collector, Jalgaon, in pursuance to the direction No. 2 issued by the Division Bench of this court (cited supra).

5. When the said Writ Petition No. 6100 of 2008 was heard by the Division Bench, it doubted correctness of the view expressed by the Division Bench in Writ Petition No. 7472/2007 (hereinafter referred to as 'Sunil's Case') and, therefore, directed the matter to be placed before the learned Chief Justice in order to constitute Larger Bench to decide the issue, 'as to whether project affected persons can be appointed without advertising the posts, ignoring their qualifications and merit.' That is how the matter is placed before us.

6. In order to decide the aforesaid issue, we have heard the learned Counsel appearing for parties in the matter referred to the Larger Bench. We have also heard the learned Counsel, who have made their submissions, either supporting the view in Sunil's Case or doubting its correctness. At the outset, we must record our appreciation for the valuable assistance rendered by all of them.

7. Mr. S.B. Talekar, learned Counsel appearing for the petitioners in Writ Petition No. 6100/2008, submits that the directions which are given by this court in Sunil's Case are totally contrary to the mandate of Article 14 and 16 of the Constitution of India. It is submitted that the Division Bench has also not construed the provisions of the said Act in its proper perspective. It is submitted that the said Act does not provide that the appointment has to be made in accordance with seniority maintained by the Collector dehors recruitment rules and the merits of the candidate.

8. Mr. V.D. Sapkal, learned Counsel appearing for the petitioner in Writ Petition No. 7185/2008, submits that by the directions issued in Sunil's Case, the Division Bench has also directed as to how recruitment of the project affected persons is to be done. It is submitted that such an exercise would not be permissible for this court in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. He further submits that the directions in Sunil's Case, if implemented, would amount to districtwise reservation which would be violative of mandate of Article 16 of the Constitution of India. He further submits that the discrimination on the ground of residence is prohibited only under Article 16 and not under Article 15 and, therefore, if the direction which provides that the project affected persons should be appointed on the basis of the seniority list maintained by the Collector of the respective districts is to be implemented, it would be violative of the provisions of Article 16(2) of the Constitution of India. He relies on the judgments of the Apex Court, in the cases of (i) Kailash Chand Sharma, etc. etc. v. State of Rajasthan and Ors. : AIR 2002 SC 2877, (ii) Radhey Shyam Singh and Ors. etc. v. Union of India and Ors. : AIR 1997 SC 1610, (iii) J.& K. Public Service Commission, etc. v. Dr. Narinder Mohan and Ors. etc. etc. : AIR 1994 SC 1808, (iv) Rajesh Kumar Daria v. Rajasthan Public Service Commission and Ors. : AIR 2007 SC 3127, (v) Union of India v. Pushpa Rani and Ors. (2008) 9 SCC 242.

9. Mr. N.B. Khandare, learned Government Pleader appearing on behalf of the State, also submits that the view taken by the Division Bench in Sunil's Case is not correct. He submits that the finding of the Division Bench in Sunil's Case, that the provision for providing employment to project affected persons is not a horizontal reservation, but 'priority quota', is not correct. The learned Government Pleader, relying on certain observations of the Apex Court, in the case of Indra Sawhney and Ors. v. Union of India and Ors. 1992 Supp (3) Supreme Court Cases 217, submits that the provision for employment of project affected persons on priority basis, is nothing but horizontal reservation. He, therefore, submits that the posts for project affected persons which are reserved, are also required to be filled in, in accordance with the relevant recruitment rules. The learned Government Pleader relying on various judgments of the Apex Court, submits that the object of any selection process for recruitment into public service is to provide most suitable persons and to avoid patronage and favoritism. He, therefore, submits that though quota is prescribed for project affected persons under the said Act, concerned recruitment rules cannot be given a go by. He submits that the persons from the said category are required to compete amongst themselves and the best suitable candidates are entitled for appointment on the posts reserved for the said category.

10. Mr. R.R. Mantri, learned Counsel appearing for the petitioners in Writ Petition No. 5266/2008, who supports the view taken by the Division Bench in Sunil's Case, submits that in view of Section 27 of the said Act, read with Articles 39(b) and 39(c) of the Constitution of India, challenge to the said Act, on the ground of being violative of Article 14 or 16 of the Constitution, is without substance. He submits that the provision of providing employment to the project affected persons is to enable such a family to come out of hardship caused to them on account of their uprooting from the place of their origin. He, therefore, submits that the Division Bench in Sunil's Case has rightly held that the person, who is uprooted first, is entitled to be rehabilitated first and, therefore, the employments are required to be given on the basis of seniority contained in the list maintained by the respective Collectors. Relying on the various judgments of the Apex Court, he submits that when reservation for handicapped persons or appointment on compassionate ground is upheld by the Apex Court, there is no reason why such a reservation should not be provided to project affected persons. He relies on the judgments of the Apex Court in the cases of (i) Javed Niaz Beg and Anr. v. Union of India and Anr. : AIR 1981 SC 794 (ii) Auditor General of India and Ors. v. G. Ananta Rajeswara Rao : (1994) 1 Supreme Court Cases 192, (iii) Mahesh Gupta and Ors. v. Yashwant Kumar Ahirwar and Ors. : AIR 2007 SC 3136, and (iv) State of Kerala v. Kumari T.P. Roshana and Ors. : AIR 1979 SC 765.

11. Before referring to the various judgments cited supra, we feel that it would be appropriate first to refer to certain provisions of the said Act.

(i) Section 6 of the said Act reads thus:

Duties and functions of project authority - It shall be the duty of the project authority,-

(a)....

(b)....

(c) subject to any reservations validly made and subject to availability of posts, to give highest priority in Class III and Class IV category of service on the project establishment, to one member of the affected family nominated by the affected person, if such member is eligible for such employment according to the recruitment rules for such posts.

(ii) It would also be appropriate to refer to Sub-section 6 of Section 10 of the said Act, which reads thus:

Rehabilitation of affected persons-

(1) to (5)....

(6) (a) In all Class III and Class IV category of services under the establishment of the State Government Departments, public sector undertakings, local self government, government-aided institutions and cooperative societies specified under Section 73A of the Maharashtra Cooperative Societies Act, 1960, there shall be not less than five per cent priority quota for the employment of nominees of the affected persons.

(b) The beneficiary persons, societies, companies, factories, sugar-factories, spinning- mills assisted by the State Government in the form of matching share contribution etc., shall provide employment to not less than five per cent of the cadre strength of Class-III and Class-IV or equivalent of non-technical employees to the nominees of the affected persons :

Provided that, the above priority shall be treated as preference among the open and different reservation categories in pro-rata manner.

(c) The Collector shall maintain a register showing the recruitment position in the District and ensure removal of the backlog in recruitment of the nominees of the affected persons. However, at any recruitment, the percentage of the persons so recruited from amongst the nominees shall not exceed fifty.

12. Though the Division Bench in Sunil's Case has also made reference to certain Government Resolutions which have been issued prior to enactment of the aforesaid Act of 2001, we do not feel that it would be necessary to refer to the said Government Resolutions/Circulars which are issued prior to the said Act coming into force. A reference to the Government Resolution concerning the appointment of project affected persons which are issued pursuant to the said Act coming into force i.e. 14th March 2001, would only be relevant, in our view. The Government Circular dated 7th April 2001, reads thus:

The procedure to be adopted while appointing the project affected persons or their dependents on the posts of Group'C' and 'D' in Government service.

Government of Maharashtra

General Administration Department

Govt. Resolution No. Project-1001/109/C.N.-13/2001/16-A,

Mantralaya, Mumbai 400 032.

Dated: 7th April 2001.

Ref.: 1) Govt. Resolution, General Administrative Department No. RPA-1080/34/16-A, Dated 21-01-1980.

2) Govt. Circular, Revenue and Forest Department, No. RPA-1093/C. No.-139/R-1, Dated 22.09.1993.

3) Govt. Resolution, General Administrative Department No. SRV-1094/1004/C. No. 30/16-A, Dated 17-11-1994.

4) Govt. Circular, General Administration Department No. RSB-1296/C. No. 149/96/13-A, Dated 3-1-1997.

5) Govt. Circular No. Project-1000/C.No.27/2000/16-A, Dated 13-9-2000.

Government Circular

1) As per above mentioned Government Resolution dated 21-1-1980, top priority upto 5% of the total posts is given while making appointments of the project affected persons or their dependents on the post of Group 'C' (excluding the posts under the purview of Maharashtra Public Service Commission) and Group'D' on the establishment of Government Services and Govt. Recognised Corporations, Govt. aided Corporations, Institutions run by the Government, Zilla Parishad, Municipal Corporation, Municipality and such all other Authorities and Institutions to whom the Government is empowered to give directives. As per Govt. Resolution dated 17-11-1994, Earthquake affected persons are also included in the 5% top priority of project affected persons. As per Govt. Circular dated 3-1-1997, in respect of appointments of the project affected persons, it was informed to the appointing Authorities to make appointment of project affected persons directly from the applications received by them.

2) As the powers to give appointment to the Project Affected Person or his dependents in a Government Service in Group 'C' (excluding the posts within the powers of Maharashtra Public Service Commission) and Group 'D' posts are vested with the Appointing Authority and as it has come to the notice of the Government that the appointments are not being given as per seniority in the project affected persons' waiting list maintained in this respect by the Collector office, hence by modifying the Government Circular dated 3-1-1997 partially, instructions have been given to the Appointing Authorities vide Circular dated 13-9-2000 not to make any appointment of project affected persons directly. As per this circular, it has been instructed that all the Appointing Authorities shall, for filling up the posts of Project Affected persons out of the posts lying vacant with them, by taking care that it will not prejudice the reservation of Backward Class, make a requisition to the Collector Office for the candidates from the list of Project Affected persons and then the Collector Office shall recommend to the Appointing Authority the required candidates from the project affected persons' list as per the seniority.

3) As in some of the matters of appointments of project affected persons, steps have been taken by the Appointing Authority before 13-9-2000, a question as to whether the directions contained in the Circular dated 13-9-2000 should be made applicable or not in these matters, was under the consideration of the Government. In this respect, the Government is now issuing such directions, that if the project affected persons have applied to the Appointing Authority before 13-9-2000 and at that time, as per the top priority post/posts are lying vacant and if the Appointing Authority has taken steps for the appointment of project affected persons before 13-9-2000, in such matters, the instructions in the Circular dated 13-9-2000 of General Administration Department will not be applicable. In these matters, the Appointing Authority shall take steps as per the instructions in the Circular dated 3-1-1997, for the appointment to be made from the applications received by him directly from the project affected persons. In the remaining matters and also in respect of making appointment from the applications received on 13-9-2000 or thereafter, the steps shall be taken as per the Government Circular dated 13-9-2000.

4) The copy of up-to-date seniority list of the project affected persons should be displayed on the notice board at proper place in the collector office, so that the project affected persons can get information about their seniority in the waiting list. Similarly, up-to-date information in respect of demand coming from the Appointing Authority and the names of the candidates communicated by the Collector or the action taken in this behalf should be displayed on the notice board of the Collector Office. These orders are being issued subject to the Government Resolution dated 29-6-2000 of the Finance Department. Even though there is a vacant post, appointment of project affected person should not be made on that post, without prior permission of the Government.

In the name and order of Governor of Maharashtra.

(Sd/-)

(D.D. Deshpande)

Under Secretary, Govt. of Maharashtra.

13. Perusal of the said Government Circular would clearly reveal that if the appointing authority has initiated procedure for appointment of project affected persons, prior to 13th September 2000, the procedure prescribed under Circular dated 13th September 2000 would not be applicable. However, it has been specifically provided that in all other cases, the appointments, in so far as project affected persons are concerned, are to be made in accordance with Government Circular dated 13th September 2000. It will, therefore, be necessary to refer to the said Government Circular dated 13th September 2000, which reads thus:

The Procedure to be adopted while appointing the project affected persons or their dependents on the posts of Group'C' and 'D' in Government service.

Government of Maharashtra

General Administration Department,

Govt. Circular No.: Project-1001/F. No. 27/ 2000/16-A,

Mantralaya, Mumbai - 400 032.

Dated: 13th September 2000

Reference: 1) Government Resolution, General Administration Department, No. RPA-1080/34/16-A, dated 21st January, 1980.

2) Govt. Circular, General Administration Department, No. PNM-1290/C. No. 38/90/13-A, dated 18th June 1990.

3) Govt. Circular, Revenue and Forest Department, No. RPA-1093/C. No. 139/R-1, dated 22nd September, 1993.

4) Govt. Resolution, General Administration Department, No. SRV-1094/1004/C.No.30/16-A, dated 17-11-1994.

5) Govt. Circular, General Administration Department, No. RSB-1296/C. No. 149/96/13-A, dated 3rd January 1997.

Government Circular

1) As per Government Resolution cited under Reference No. 1, the project affected and their dependents are given top priority upto minimum 5% of total posts for the appointment on the posts in Group'C' (excluding the posts coming under the purview of M.P.S.C.) and Group 'D' on the establishment in Government Services and in the Corporations sponsored by the Government, the Corporations receiving aids from the Government, the Societies run by the Government, Zilla Parishad, Municipal Corporations, Municipality and such authorities to whom the Government is having power to issue directives. In accordance with the Government Circular at Reference No. 3, a procedure is prescribed in respect of appointment of project affected persons. As per circular at Ref. No. 5, it is necessary for the project affected persons to make application directly to the Appointing Authority.

2) As the powers to give appointment to the Project Affected Person or his dependents in a Government Service in Group 'C' (excluding the posts within the powers of Maharashtra Public Service Commission) and Group 'D' posts are vested with the Appointing Authority and as it is noticed by the Government that the appointments are not being given as per seniority in the project affected persons' waiting list maintained in this respect by the Collector Office, therefore, by modifying the Government Circular under reference following instructions are being given to the Collectors and the Appointing Authorities:

1. The Collector while preparing the waiting list of Project affected persons, should ascertain the seniority as per the date of the first application submitted by the project affected and for that purpose shall maintain a entry register.

2. Henceforth, the appointing authority shall not directly make the appointment of project affected candidates. All the Appointing Authorities shall for filling up the posts of Project Affected persons out of the posts lying vacant with them, by taking care that it will not prejudice the reservation of Backward class, make requisition to the Collector Office for the candidates from the list of Project Affected persons as per the Service Recruitment Rules.

3. The Collector Office shall as per Instruction No. 2, recommend the names of required candidates to the concerned Appointing Authority.

4. The Appointing Authority after giving appointment to the Project Affected Person shall inform the Collector office accordingly and the concerned Collector shall delete the names of those candidates from the waiting list.

3) The Appointing Authority and the Collector shall take steps as per above instructions for giving appointment to the eligible candidates as per the waiting list of project affected persons of the District and as per the Service Recruitment Rules.

In the name and order of Governor of Maharashtra.

(Sd/-)

(D.D. Deshpande)

Under Secretary, Govt. of Maharashtra.

From the perusal of the said Government Circular dated 13th September 2000 also, it would be clear that the appointing authorities are directed not to make any direct appointment of any project affected persons. They are required to call for the candidates from the waiting list in the office of the Collector in accordance with requisite recruitment rules. The concerned Collector's office is required to make recommendation in accordance with seniority, to the concerned appointing authority. After the appointment, the recruitment authorities are required to inform the name of the appointed candidate to the Collector and the concerned Collector has to delete the name of the appointed candidate from the waiting list.

14. Vide Government Resolution dated 23rd October 2002, it has been provided that while making recruitment at the regional level, the recruitment authorities are required to take into consideration the project affected person from all the district falling in the said Division. The Government Resolution dated 30th May 2003 provides for relaxation of age up to 35 years for the project affected persons belonging to general category and 40 years for the project affected persons belonging to reserved category, in so far as posts in Group-C and Group-D are concerned. Vide Government Resolution dated 3rd February 2007, the said upper age limit has been increased to 45 years, for general as well as reserved category, in so far as the project affected persons are concerned.

15. Vide the Circular issued by the State Government, General Administration Department, dated 25th October 2005, wherein general guidelines for recruitment of all categories are issued, it has been directed that the recruitment in so far as project affected persons is concerned, has to be done in accordance with the Government Circular dated 13th September 2000 (cited supra).

16. We are afraid, as to whether upon perusal of the provisions in the said Act or the Government Circular/Resolutions referred to herein above, it could be held that they provide that the appointment, in so far as project affected persons, are required to be made in accordance with the seniority maintained by the Collector for project affected persons dehors the recruitment rules. On the contrary, perusal of Sub-section 'c' of Section 6 of the said Act provides that the priority is to be given in Class III and Class IV category of service on the project establishment, to one member of the affected family nominated by the affected person, if such member is eligible for such employment according to the recruitment rules for such posts. Not only this, but the Government Circular dated 13th September 2000, which is to be followed as per Government Circular dated 7th April 2001, also provides that the names are to be called by the recruitment agency and forwarded by the Collector in accordance with the concerned recruitment rules.

17. The Constitution Bench of the Apex Court, in the case of Indra Sawhney and Ors. (supra), has observed thus:

If, however, Clause (4) is treated as an exception to Clause (1), an important but unintended consequence may follow. There would be no other classification permissible under Clause (1), and Clause (4) would be deemed to exhaust all the exceptions that can be made to Clause (1). It would then not be open to make provision for reservation in services in favour of say, physically handicapped, army personnel and freedom fighters and their dependents, project affected persons, etc. The classification made in favour of persons belonging to these categories is not hit by Clause (2). Apart from the fact that they cut across all classes, the reservations in their favour are made on considerations other than that of backwardness within the meaning of Clause (4). Some of them may belong to the backward classes while some may belong to forward classes or classes which have an adequate representation in the services. They are, however, more disadvantaged in their own class whether backward or forward. Hence, even on this ground it will have to be held that Article 16(4) carves out from various classes for whom reservation can be made, a specific class, viz., the backward class of citizens, for emphasis and to put things beyond doubt.

The Apex Court has further observed thus:

Article 46 enjoins upon the State to promote with special care, the educational and economic interests of the 'weaker sections' of the people, and, in particular, of the SCs/STs, and to protect them from social injustice and all forms of exploitation. The expression 'weaker sections' of the people is obviously wider than the expression 'backward class' of citizens in Article 16(4) which is only a part of the weaker sections. As has been discussed above, the expression 'backward class' of citizens is used there in a particular context which is germane to the reservations in the services under the State for which that article has been enacted. It has also been pointed out that in that context, read with Articles 15(4) and 340, the said expression means only those classes which are socially backward and whose educational and economic backwardness is on account of their social backwardness and which are not adequately represented in the services under the State. Hence, the expression 'backward class' of citizens in Article 16(4) does not comprise all the weaker Sections of the people, but only those which are socially and, therefore, educationally and economically backward, and which are inadequately represented in the services. The expression 'weaker Sections of the people' used in Article 46, however, is not confined to the aforesaid classes only but also includes other backward classes as well, whether they are socially and educationally backward or not and whether they are adequately represented in the services or not. What is further, the expression 'weaker sections' of the people does not necessarily refer to a group or a class. The expression can also take within its compass, individuals who constitute weaker Sections or weaker parts of the society. This weakness may be on account of factors other than past social and educational backwardness. The backwardness again may be on account of poverty alone or on account of the present impoverishment arising out of physical or social handicaps. The instances of such weaker Sections other than SCs/STs and socially and educationally backward classes may be varied, viz., flood, earthquake, cyclone, fire, famine and project affected persons, war and riot-torn persons, physically handicapped persons, those without any or adequate means of livelihood, those who live below the poverty line, slum-dwellers etc. Hence the expression 'weaker sections' of the people is wider than the expression 'backward class' of citizens or 'socially and educationally backward classes' and 'SCs/STs'. It connotes all Sections of the society who are rendered weaker due to various causes. Article 46 is aimed at promoting their educational and economic interests and protecting them from social injustice and exploitation. This obligation cast on the State is consistent both with the Preamble as well as Article 38 of the Constitution.

18. It can thus be clearly seen that the Apex Court has held that there could be reservation for certain weaker Sections other than Scs/STs and socially and educationally backward classes may be varied viz. flood, earthquake, cyclone, fire, famine and project affected persons, war and riot-torn persons, etc.

19. We are, therefore, of the considered view that the quota which has been prescribed under Sub-section 6 of Section 10 of the said Act is nothing else but a horizontal reservation provided by the State under Article 16(4) of the Constitution of India to the weaker Section of the society, namely, project affected persons.

20. We are unable to agree with the findings of the Division Bench in Sunil's Case, that what is provided by the Government is a right to priority appointment and not a horizontal reservation. As held by the Apex Court, in the case of Indra Sawhney (supra), it is permissible for the State to provide reservation for a weaker Section of the society like project affected persons, we are of the considered view that the quota which is prescribed under Sub-section 6 of Section 10 of the said Act is nothing else but a horizontal reservation provided for the category of project affected persons. We find that the 5% of the seats provided for the project affected persons are nothing but a horizontal reservation provided for the said category. As a natural corollary, it will have to be held that the suitable candidates from the said category will have to compete amongst themselves for the posts reserved and the best suitable candidate amongst themselves would be entitled to be appointed.

21. In our view, appointments of the persons only on the basis of the seniority in the register maintained by the respective Collectors would violate the mandate of Article 14 and 16 of the Constitution of India. No doubt, that Article 16(4) would permit a horizontal reservation to be made in favour of a weaker Section of the society which is socially and educationally backward, like the project affected persons. However, the mandate of Article 14 and 16 would not permit an appointment to be made of the persons from the reserved category by ignoring the relevant recruitment rules and the inter se merit. As a matter of fact, as we have already held, even the said Act and the relevant Government Resolutions do not provide for that.

22. From the perusal of operative paragraph 3(iii), it would reveal that the Division Bench in Sunil's Case has directed that the appointments shall be made strictly from the seniority list maintained by Collector / Resettlement Officer of the respective Districts on verifying the eligibility according to rules for the post and without any competitive examination. In effect, the direction, in our view, would amount to district-wise reservation. The Apex Court, in the case of Kailash Chand Sharma (supra) has observed thus:

The first and foremost question that would arise for consideration in this group of appeals is, whether the circular dated 10-6-1998 providing for bonus marks for residents of the concerned district and the rural areas within 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.

The Apex Court has further observed thus:

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 be within a State, region, district or lesser area within a district cannot be a ground to accord preferential treatment or reservation, save as provided in Article 16(3). It is not possible to compartmentalize the State into Districts with a view to offer employment to the residents of that district on a preferential basis. At this juncture, it is appropriate to undertake a brief analysis of Article 16.

Article 16 which under Clause (1) guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any 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 dilutes the rigour of Clause (2) by (i) conferring an enabling power on the Parliament to make a law prescribing the residential requirement within the State in 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'.

23. In our view, the directions issued by the Division Bench in Sunil's Case, which in effect result in district-wise reservation for project affected persons, would not be permissible in view of the law laid down by the Apex Court in the case of Kailash Chand Sharma (supra) while interpreting the provisions of Article 16 of the Constitution of India.

24. We also find that the directions issued by the Division Bench in Sunil's Case also amount to framing of recruitment rules in so far as project affected persons are concerned. We are afraid, as to whether such an exercise would be permissible in the extraordinary jurisdiction under Article 227 of the Constitution of India. In this respect, we may refer to the observations of the Apex Court, in the case of Union of India v. Pushpa Rani and Ors. (supra). The Apex Court has observed thus:

Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open to the court to make comparative evaluation of the merit of the candidates. The court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration.

25. A reference in this respect could also be made to the judgment of the Apex Court in the case of J. & K. Public Service Commission, etc. v. Dr. Narinder Mohan and Ors. (supra), wherein the Apex Court has held that the High; Court cannot issue directions in negation of Articles 14 and 16 of the Constitution and in violation of statutory rules.

26. Though reliance is placed on various pronouncements of the Apex Court, by the learned Counsel and the learned Government Pleader to substantiate their submission, that the decision in Sunil's Case does not lay down correct law, we do not find it necessary to refer to all of them.

27. The object of the process of selection has been explained by the Apex Court in the case of Lila Dhar v. State of Rajasthan and Ors. : (1981) 4 Supreme Court Cases 159

The object of any process of selection for entry into a public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So, open competitive examination has come to be accepted almost universally as the gateway to public services.

The ideal in recruitment is to do away with unfairness (United Nations Handbook on Civil Service Laws and Practice.

Competitive examinations were the answer to the twin problems represented by democracy and the requirements of good administration. They were the means by which equality of opportunity was to be united with efficiency.... By this means favouritism was to be excluded and the goal of securing the best man for every job was to be achieved (O. Glenn Stahl: Public Personnel Administration).

Open competitive examinations are a peculiarly democratic institution. Any qualified person may come forward. His relative competence for appointment is determined by a neutral, disinterested body on the basis of objective evidence supplied by the candidate himself. No one has 'pull'; everyone stands on his own feet. The system is not only highly democratic, it is fair and equitable to every competitor. The same rules govern, the same procedures apply, the same yardstick is used to test competence (Leonard White: Introduction to the Study of Public Administration).

28. At the cost of repetition, we reiterate that what has been provided under the said Act is a horizontal reservation for project affected persons and not right to be appointed without competing with the candidates from that category. We find that in consonance with the equality rule enshrined under Articles 14 and 16 of the Constitution, the candidates from project affected persons category are required to compete amongst themselves in accordance with the relevant recruitment rules and the best candidate is entitled to be selected.

29. In so far as the submission made by Mr. R.R. Mantri, learned Counsel appearing for the petitioner in Writ Petition No. 5266/2008, on the basis of Section 27 of the said Act, read with Articles 39(b) and 39(c) of the Constitution of India, is concerned, we find that the submission is without substance. The validity of the Act is not under challenge before us. As we have already held herein above, the Act also does not prescribe that the appointments will have to be made dehors the recruitment rules only on the basis of the seniority in the list maintained by the Collector.

30. Now, let us deal with the judgments relied on by Mr. Mantri. In the case of B. Venkataramana v. The State of Madras and Anr. : AIR (38) 1951 SC 229, the Apex Court has held that the Government orders issued by the Government of Madras, which besides making reservation of posts for Harijans & backward Hindus, also makes reservation of posts for other communities viz. Muslims, Christians, Non-Brahmin Hindus and Brahmins, was not permissible under Article 16 of the Constitution.

31. In so far as the reliance placed by Mr. Mantri, on the judgment of the Apex Court, in the case of Triloki Nath Tika and Anr. v. State of Jammu and Kashmir and Ors. AIR 1967 SC 1283, is concerned, it is difficult to understand, as to how the judgment is applicable to the facts of the present case, inasmuch as, what was held in the aforesaid case was that the distribution of posts by the State on the basis of caste, community, race, religion, sex, descent, place of birth or residence was not permissible under Article 16 of the Constitution.

32. We also fail to understand, how the judgment of the Apex Court, in the case of Javed Niaz Beg and Anr. (supra), would support the submission made by Shri Mantri. In the said case, the Government Notification making amendment to the rules for competitive examinations of civil services, thereby giving option to the candidates to the North Eastern States/Union Territories to take or not to take Paper I on Indian languages was challenged. The Apex Court found that the students from this region may suffer serious disabilities if forced to take examinations in the languages set out in Scheduled Eight and, therefore, the option given to them to take or not to take Paper I on Indian languages is a facility which puts them on par with the rest. The Apex Court has held that it helps a handicapped group and does not hamper those who are ahead.

33. We are conscious of the fact that Article 14 recognizes equality amongst equals and not equality amongst unequals. A preferential treatment to the disadvantaged groups is always permissible under Article 14 of the Constitution. However, here we are not considering the validity of the reservation in favour of the project affected persons. We are only considering as to whether there can be denial of competition amongst the candidates from the said group, resulting in a merit amongst the said group being not recognized.

34. In so far as the reliance placed by Mr. Mantri, on the judgment of the Apex Court in the case of Auditor General of India and Ors. v. G. Ananta Rajeswara Rao (supra) is concerned, the same pertains appointment on compassionate ground to son, daughter or widow of government servant who died in harness and, therefore, we do not find that it would be applicable to the facts of the present case. In so far as the judgment of the Apex Court, in the case of Mahesh Gupta and Ors. (supra), is concerned, in the said case, the question was whether the reservation in favour of handicapped could exceed the quota of 50% reservation, or not. The Apex Court has found that the rule, that the reservation must not exceed 50%, would not be applicable to reservation for handicapped and women, being horizontal reservation under Article 16 of the Constitution.

35. It is also difficult to understand, as to how the judgment of the Apex Court, relied upon by Mr. Mantri, in the case of State of Kerala v. Kumari T.P. Roshana and Ors. (supra) would be applicable to the facts of the present case, wherein challenge was to the linkage of division of seats with registered student-strength while considering admission.

36. Mr. Mantri, learned Counsel, has also relied on the judgments of this court, in the case of (i) Subhash Ramrao Thorat v. The State of Maharashtra and Ors. dated 8th November 2006, delivered in Writ Petition No. 545/2001 (Unreported), (ii) Suresh s/o. Tikaram Pustode v. State of Maharashtra and Ors. : 2004(1) Mh.L.J. 157 and Shailendra Prakashchandra Darda v. State of Maharashtra and Ors. : 2007(3) Mh.L.J. 170, wherein directions were issued by this court, that the project affected persons whose names appear in the seniority list, should be recommended for appointment. However, since the said directions were issued by the respective Benches, in the facts of the case, without considering the larger issue, we do not find that the reliance placed by Mr. Mantri would support the view, he persuades us to agree.

37. In so far as the contention raised by Mr. Mantri, that the provision of providing jobs to project affect persons is on account of their uprooting and, therefore, the jobs have to be provided on the basis of the criteria as to 'who is uprooted first, should get the appointment first', is concerned, the same is also without substance. Perusal of Section 10 of the said Act would reveal that apart from Sub-section 6, which provides for providing 5% quota, the State is also mandated to take various other steps for rehabilitation of the persons who are affected by the projects. Sub-section 3 of Section 10 reads thus:

The State Government shall provide civic amenities in the prescribed scale and manner in the new gaothan or in the extended part of any existing gaothan established for the purpose of rehabilitation of affected persons and such amenities shall include the following, namely:

(a) permanent provision for drinking water, in proportion to the population, by open well, bore well, tube well, piped water supply scheme or by any other mode;

(b) school with playground of appropriate level as prescribed by the Education Department of the State Government with toilets facilities;

(c) construction of Village Panchayat Office and Chavdi or Samaj Mandir;

(d) internal metal roads and asphalted approach road of appropriate standard;

(e) an access to the farm lands of the affected persons, if required;

(f) electric supply along with street lights, and three phase connections, wherever required;

(g) cremation ground with a shed, platform, electric supply, water supply and burial ground, as may be required with an approach road;

(h) open built-up gutters;

(i) financial assistance for individual latrines and public latrines, wherever necessary;

(j) land for cattle stand with a water cistern;

(k) land with pick up shed for Maharashtra State Road Transport Corporation bus services;

(l) land for threshing floor, that is to say, khalwadi

(m) pasture land (if Government land is available);

(n) developed land for market;

(o) land for future expansion of gaothan;

(p) land for a secondary school and a dispensary or primary health centre, bank, post-office, garden for children, etc., depending on the population of the new gaothan;

(q) land for registered bodies for public purposes in the old gaothan,

(r) land for play ground.

It can thus be seen that the State is required to provide all these facilities to the project affected persons while rehabilitating them. Not only this, under Sub-section 4 of the said Section, the State is also required to provide various other amenities in addition to the one listed above which existed in the old gaothan.

38. Perusal of Section 16 of the said Act would also reveal that an eligible affected person is also entitled to get land acquired by the State Government under Section 14 with the occupancy status held by such a project affected person earlier. It can thus be seen that an affected person does not come on the roads on the execution of the projects. Under Section 6 of the said Act, a duty is cast upon the State Government for complete rehabilitation of the project affected persons. Not only this, but under Section 16, a person whose land has been acquired for the project, is also entitled to get land in the benefited zone on the conditions stipulated under Section 16. It would thus be difficult to appreciate the contention of Mr. Mantri, learned Counsel, that a person whose name appears in the register maintained by the Collector, must be given an appointment on the basis of seniority in the register, without calling him for interview or competing with others.

39. We are, therefore, of the considered view that the directions given by the Division Bench in Sunil's Case, that the project affected persons should be appointed strictly according to the seniority list maintained by the Collector and that, they are not required to compete between themselves and that they are entitled to be appointed without any competitive examinations, are inconsistent with the mandate of the Constitution of India under Articles 14 and 16. We find, that the same is also not permissible under the said Act and the relevant Government Resolutions. As we have already held, the quota of 5% fixed for project affected persons is nothing but a horizontal reservation provided for project affected persons and the candidates from that category will have to compete amongst themselves under the recruitment rules and the best amongst them would be entitled to be appointed.

40. Now, let us consider whether it is necessary for publishing an advertisement, calling applications from candidates belonging to project affected person, while filling up vacancies reserved for the said category. The Apex Court, in the case of Excise Superintendent, Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao and Ors. 1996 AIR SCW 3979 has considered the requirement of calling applications by advertisement. It has been observed thus:

Having regard to the respective contentions, we are of the view that contention of the respondents is more acceptable which would be consistent with the principles of fair-play, justice and equal opportunity. It is common knowledge that many a candidate are unable to have the names sponsored, though their names are either registered or are waiting to be registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidate are deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning Departments for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate Department or undertaking or establishment, should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news-bulleltins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates.

41. No doubt, that under the Government Circulars, the Collectors are also required to sponsor the names of eligible candidates to the recruitment authority. However, since we have already held herein above, that the district-wise reservation is not permissible under the Constitution, the candidates from the other districts, who are project affected persons, would also be entitled to compete with the candidates who are sponsored by the Collector. In the absence of the advertisement, it will not be possible for them to get knowledge about recruitment process initiated in the areas beyond their district. We, therefore, find that in order to ensure the equality of opportunity which is guaranteed in the matter of employment under Article 16 of the Constitution, it would be necessary that the posts reserved for project affected persons are advertised so that all the eligible candidates can submit their applications and get an opportunity to compete with others in their category.

42. We accordingly answer the issue referred to us, as under:

That, the project affected persons cannot be appointed without advertising the posts ignoring their qualifications and merit.

43. The Writ Petitions be placed before the Division Bench, for disposal, in accordance with the issue answered by us.