Rajesh Bindal, J.@mdashAdditional affidavit of Lajvinder Singh Brar, Director of Horticulture, Punjab, Chandigarh on behalf of respondents No. 1 and 2 filed in court in all the three petitions, is taken on record. This order will dispose of three petitions bearing CWP Nos. 24097, 24427 and 24680 of 2013, as common questions of law and facts are involved.
2. The petitioners herein are applicants for the post of Horticulture Development Officer, the advertisement for which was issued on 6.7.2013. The qualifications required for the post, as laid down in the advertisement, are reproduced as under:
"Essential
(i) B.Sc. Agriculture degree with Horticulture as Elective subject from recognized University or Institution.
(ii) Pass in Punjabi upto Matric standard.
Desirable
(i) Candidate possessing M.Sc. Horticulture degree from recognized university or Institution.
3. Subsequent to the publication of the aforesaid advertisement, a corrigendum was published on 9.7.2013, whereby a condition was imposed that domicile certificate regarding residence of Punjab is also required for all posts of Horticulture Development Officers.
4. The grievance of the petitioners in the present set of petitions is that imposition of condition of production of domicile certificate regarding resident of Punjab only, is unconstitutional. In support of the contention, learned counsel for the petitioners has placed reliance upon a Full Bench judgment of this Court in
5. The only stand taken by learned counsel for the State is that in terms of the explanation to Rule 6(2)(a) of the Punjab Subordinate Agricultural Service Rules, 1933 (for short, ''the Rules''), preference is to be given to persons belonging to ''notified agricultural tribes'' in the State of Punjab. In terms of the aforesaid enabling provision that it was decided to appoint the candidates of domiciles of Punjab. In the additional affidavit filed today, it is stated that there is no notification traceable, which has been issued under the aforesaid Rules, notifying any ''agricultural tribes in the State of Punjab''. It is sought to be claimed that it should be inferred that "notified Agricultural Tribes" includes, besides the farmers community, persons belonging to other classes or categories, who are dependent upon the profession of agricultural cultivation. However, he did not dispute the judgment of Full Bench of this court in Abhishek Rishi''s case (supra). He merely tried to distinguish the same stating that as there is enabling provision in the Rules in the present case, unless the vires thereof is challenged, the judgment as such would not be applicable. He further submitted that till date, no separate service rules have been framed by the Department of Horticulture, Punjab in respect of the post of Horticulture Development Officer. The recruitment on the said post is being made in terms of the aforesaid Rules.
6. In response to the contentions raised by learned counsel for the State, learned counsel for the petitioners submitted that though the Rules pertaining to recruitment of Agricultural Assistant ''A'' class have been adopted by the State to make recruitment for Horticulture Development Officer, but insistence is being made on the production of domicile certificate. In the year 2012, recruitments were made on the post of Agriculture Development Officer in the State of Punjab, which included candidates from outside the State of Punjab, namely, Madhya Pradesh, Bihar and Chandigarh, though the Rules applicable were same.
7. The aforesaid fact is not disputed by learned counsel for the State.
8. Heard learned counsel for the parties and perused the paper book.
9. The provisions of the Rules, on which the State is seeking to place reliance to restrict employment of Horticulture Development Officer to the domicile of the State of Punjab are extracted below:
6(2) - No person, who is not already in Government service, shall be appointed to the service unless he holds the educational or technical qualifications prescribed below for the various classes of appointments:-
(a) Agricultural Assistant ''A'' class of Demonstrator:-
The degree of B.Sc. (Agri.) of the Punjab University or such other similar qualification as may be required for the post to be filled:
(Explanation:- Preference will be given to persons belonging to notified agricultural tribes in the Punjab).
10. A perusal of the aforesaid Rule shows that in explanation to Rule 6(2)(a), all what has been mentioned is that preference will be given to the persons belonging to ''notified agricultural tribes in the State of Punjab''.
11. In the additional affidavit filed today in court, the stand of the State is that there is no notification available specifying any agricultural tribe in the State of Punjab. In the absence thereof, the contention raised in the additional affidavit that the aforesaid explanation should be given expanded meaning by inferring that the persons of other categories, who are dependent upon the profession of agricultural cultivation, should also be considered falling in that class and be given preference, is totally misconceived. In fact, there is no such condition in the advertisement also. In the corrigendum issued, domicile was required to be produced by all the candidates.
12. Still further, as the stand of the State is that Rules pertaining to recruitment of Agricultural Assistant ''A'' class are being followed for recruitment of Horticulture Development Officer, but still the fact remains that in the Agriculture Department, the appointment of Agriculture Development Officers was made even of the candidates belonging to the States other than the State of Punjab, as is clear from the order dated 17.12.2013, which has been produced on record by the petitioner(s) as Annexure P-13, i.e., list of appointees in the year 2012.
13. Still further, the issue as to whether employment in a State can be restricted to the domicile of that particular State has been gone into by the Full Bench of this Court in Abhishek Rishi''s case (supra), wherein it was opined that such a condition is unconstitutional:
81. For the reasons recorded above and to summarize what we have said, we hold:
(1) and (2) xx xx xx xx xx xx xx
(3) The qualifications laid down in the impugned amendment vide notification dated 18.4.2011 carried out in Rule 10 to the extent it restricts eligibility on the basis of domicile and residence within the State of Punjab and Union Territory, Chandigarh, that is, Rule 10(1)(a) & (d) are declared unconstitutional and beyond the legislative competence of the State as only Parliament under Article 16(3) can make law prescribing with regard to a class or classes of employment or appointment to an office under the Government of a State or any local or other authority within the State to provide any requirement as to residence within that State prior to such employment or appointment. Article 35(i)(a) of the Constitution provides that Parliament shall have, and the legislature of a State shall not have, power to make laws with respect to any matter provided in Article 16(3).
14. For the reasons mentioned above, the condition imposed by the official respondents to deny employment to the petitioners on the ground that they are not domicile of the State of Punjab is held to be illegal. In case the petitioners are more meritorious than the candidates, who have already been appointed, they be offered appointment. The needful be done within a period of one month from the date of receipt of a copy of the order. No one will be required to be disturbed for the reason that at the time of issuance of notice of motion in all the three petitions, one post in the category to which the petitioners belong, was directed to be kept reserved. It is further directed that the petitioners shall be entitled to all the benefits notionally from the date persons, who were lower to them in the merit list, were appointed. However, actual benefit will accrue to them from the date they join service.
The petitions stand disposed of.
