1. In these two writ petitions, Ms. Lalima Gupta, Ms. Kanchan Bala and Mr. Surinder Kumar (minor) through his next friend Mr. Ashwani Kumar say that the selection of candidates on the basis of a "district wise reservation" to the Junior Basic Training Course (hereinafter referred to in short as the J.B.T. Course") is clearly violative of Articles 14 and 15 of the Constitution and consequently pray that it be struck down.
2. The facts are briefly set out. The State of Himachal Pradesh issued an advertisement in the daily edition of the Punjab Kesri on 15th October 1991, inviting applications from interested persons for admission to the two years J. B. T. course for the session 1991-93. The advertisement indicated that application forms could be obtained from the office of the Distrcrict Education Officer of every district, the Principals of the Junior Basic Training Institutions as also from the Primary Block Education Officers' offices. The eligibility requirement of the candidate was that he should be between the age of the 16 to 27 years, a bona fide resident of Himachal Pradesh and a matriculate or its equivalent.
3. Admittedly, there are only a few Junior Basic Training Institutions in the State of Himachal Pradesh. They are located at Solan, Nahan, Mandi, Chowari in Chamba, Sarka-ghat and Dharmshala. The candidates belonging to the districts of Solan, Shimla and Kinnaur had to submit their applications to the Principal, Junior Basic Training Institute, Solan; whereas those belonging to the districts of Sirmur and Una were required to submit their application forms to the Principal, Junior Basic Training Institute, Nahan and the candidates from the districts of Mandi, Kullu and Lauhal Spiti had to submit their applications to the Principal, Junior Basic Training Institute, Mandi. The candidates belonging to Chamba district had to submit their applications to the Principal, Junior Basic Training Institute, Chowari and persons from Bilaspur and Hamirpur district had to submit their applications to the Principal of the Junior Basic Training Institute, Sarkaghat, whereas those belonging to the district of Kangra had to submit their application forms to the Principal, Junior Basic Training Institute at Dharamshala.
4. A procedure for the selection of candidates to the training course for the session 1991-93 had been provided. It was stipulated in the instructions that there would be a selection committee for each training institute, headed by the principal of the institution along with two other members, who would be trained graduate teachers. The select list had to be prepare according to the marks obtained by the candidates in their matriculation examination. The allocation of 1500 available seats was done district wise.
5. Ms. Lalima Gupta is a resident of Kangra, Ms. Kanchan Bala and Mr. Surinder Kumar are residents of Hamirpur. The break up of 1500 seats in the twelve districts of Himachal Pradesh is as follows :
_Name of district_
Lahaula & Spiti
6. The contention of the petitioners is that the classification of candidates on a district wise basis has no nexus with the object sought to achieved and the reservation of seats on a district wise basis also offends Article 15 of the Constitution of India. The incidence of birth in a particular district and/ or belonging to a particular district cannot be basic qualifications and merit alone on a State wise basis should have been the qualification. It is further urged that this compartmentalisation of the State into different regions so that a candidate can apply only in the district of his/her domicile, against the seats allocated district wise, is violative of the mandate of equality; as candidates belonging to one district cannot apply for seats reserved for another district they are denied an equal opportunity to seek admission to a J.B.T. course. It is also submitted that the object of selection of a candidate for admission to the J.B.T. course must be to secure the best possible persons and this object would be defeated if seats are reserved/allocated district by district as the best talent State wise would not be available; as a result a better qualified candidate from one district may be rejected while a less qualified candidate from other district may be admitted.
7. A reply has been filed by the respondents affirmed on 23rd December 1991 by Mr. Shri Niwas Joshi, Director of Primary Education, Himachal Pradesh, Shimla. He has stated therein that all the selection committees have forwarded the list of successful candidates to respondent No. 2, (that is, himself) for approval and approval has been accorded as the selection committees recommended the sames of the candidates in order of merit and in accordance with the procedure/instructions laid down by the Government.
8. It is stated that since the cadre of J.B.T. teachers is a district wise cadre only district wise seniority lists are maintained. The district wise selection for admission to the J.B.T. course has been justified on the ground that the object of maintaining a district wise cadre of only J.B.T. teachers was that they are "supposed to know the local dialect". Since there is a different dialect in every district in Himachal Pradesh, J.B.T. teachers will not be well equipped to communicate with the students of the primary classes unless they know the dialect and the imparting of education would be very difficult if not impossible. It is in this context that the criteria of distributing seats "to the residents belonging to such districts is a reasonable formula which is not based on place of birth". Persons are to be selected for the J.B.T. course only on the basis of "anticipated vacancies" falling in primary schools of various districts, candidates are being selected on such a basis, so that the needs of a particular district and more particularly rural areas are "well met" by distributing teachers, well conversant with the local dialect, customs and manners.
9. It is contended that this is not violative of Articles 14 and 16 of the Constitution and is a reasonable classification made in the interests of the object of achieving cent per cent literacy in the State up to the fifth standard. It is also stated that the reservation of seats for the J.B.T. course on a district wise basis does not offend Article 15 of the Constitution of India as "the training has been scheduled for those who will ultimately form a Distt. Wise cadre in service" and will teach the primary students of that district. It is keeping these factors in view that the district wise distribution of seats in various J.B.T. institutions has been done. Further, there is no arbitrariness as the allocation of seats has been made on the basis of vacancies of J.B.T. teachers in the district. There does not appear to be any better procedure of the selection of candidates for the J.B.T. training course as this procedure brings out the meritorious candidates of the district to do the primary teaching of children who are in Classes 1 to 5. Children learn quickly if they are familiar with the dialect. The procedure has been adopted "after having given good thought to it by the Govt. and to discourage dropping out of the school children".
10. A supplementary affidavit affirmed on 27th April 1992 by the abovementioned Director was also filed. It is stated therein that there are three categories of teachers in the Department of Education in Himachal Pradesh. First, University and college teachers who form a State cadre and the minimum qualifications prescribed are necessarily higher; second, lecturers and principals of senior secondary schools, which though a separate cadre is also a State cadre; and third high school teachers who are trained graduate teachers also have a State cadre. But, primary education has been entrusted to a separate directorate of primary education as it has a different function to discharge. College and high school education is controlled by the Director of Education whereas the primary schools are controlled by the Director of Primary Education and the hierarchy is different.
11. The object of setting up a separate directorate for primary education is to cater to the exclusive needs of rural school going children to primary schools; in view of the directive policy of the Constitution of India regarding compulsory primary education, the State has stressed the need to impart "education to all even in the remotest area" of Himachal Pradesh. The State of Himachal Pradesh is basically backward both economically and educationally as there are places which are nto easily accessible and most of the population is confined to villages. It is mainly primary education in the villages that is being sponsored and conducted by the Directorate of Primary Education as there are very few primary schools in urban areas as most of the town people prefer to send their children to public schools and/or other English medium schools; whereas in the rural areas there are hardly any public schools and consequently, the Directorate of Primary Education is catering for the needs of these children.
12. There are several dialects is Himachal Pradesh and they change from district to district, tehsil to tehsil and sub tehsil to sub-tehsil and children of such places are not exposed to other languages especially Hindi or English. Consequently, to impart primary education to such children and to communicate properly it is necessary that the local dialect, customs and manners of the particular area be known. The cadre of primary education is a district wise cadre. At the grass root is the J.B.T. teacher who teaches the primary classes. The promotional channel for these J.B.T. teachers is as head teachers in a primary school and thereafter as central head teacher incharge of three or four primary schools for the purpose of correspondence and disbursement of pay. The next ladder of promotion is as block primary education officer which is also a district cadre post. In High Schools there is also a district wise cadre of classical and vernacular teachers because of the need to impart such education in middle and High Schools to students in their own dialect for proper communication. This arrangement has been made for the purpose of efficiency in imparting primary education as well as for administrative convenience. Each district is placed under the charge of a district primary education officer, who belongs to the State cadre.
13. This is the background of the facts agaisnt which we have to consider the various contenstions.
14. Mr. Rajiv Sharma, learned counsel for the petitioners has vehemently contended that the district wise reservation is violative of Articles 14, 15 and 29(2) of the Constitution. He has relied on various decisions of the Supreme Court to show that compartmentalisation of the State is not justified.
15. The learned Advocate General has submitted that those decisions are not relevant as they deal with higher education and this is a case of imparting primary education consequently district wise reservation is within the parameters of justified classification.
16. The case on which Mr. Sharma places the strongest reliance is P. Rajendran v. State of Madras, AIR 1968 SC 1012, which was followed in A. Periakaruppan v. State of Tamil Nadu, AIR 1971 SC 2303 (unitwise admission to medical colleges) and Nidamarti Maheshkumar v. State of Maharashtra, AIR 1986 SC 1362 (compartmentalisation of the State for medical admission) which in turn was followed in State of Rajasthan v. Dr. Ashok Kumar Gupta, AIR 198.9 SC 177 (college wise percentage preference).
17. In Rajendran's case (supra), the Supreme Court struck down Rule 8 of the admission rules to the first year integrated MBBS course because it provided for district wise allocation. The argument therein is similar to the argument made by the learned counsel for the petitioners herein.
18. Rules 8 provides for district wise distribution of seats according to the population of the district. It was urged that this district wise distribution violates Article 14 Of the Constitution because it denies equality before law or equal protection of the law in as much as such allocation of seats may result in candidates of inferior calibre being selected in one district while candidates of superior calibre cannot be selection in another district. Though no statistics were available because the mark sheets had been destroyed after the interviews, it was not denied on behalf of the State that such a thing cannot happen. Chief Justice Wanchoo speaking for the Court opined:
"The question whether districtwise allocation is violative of Article 14 will depend on what is the object to be achieved in the matter of admission to medical colleges. Considering the fact that there is a larger number of candidates than seats available, selection has got to be made. The object of selection can only be to secure the best possible material for admission to colleges subject to the provision for socially and educationally backward classes. Further whether selection is from the socially and educationally backward classes or from the general pool, the object of selection must be to secure the best possible talent from the two sources. If that is the object, it must necessarily follow that that object would be defeated if seats are allocated district by district. It cannot be and has not been denied that the object of selection is to secure the best possible talent from the two sources so that the country may have the best possible doctors. If that is the object,the argument on behalf of the petitioner/appellant is that that object cannot possibly be served by allocating seats district wise. It is true that Article 14 does not forbid classification, but the classification has to be justified on the basis of the nexus between the classification and the object to be achieved, even assuming that territorial classification may be a reasonable classification. The fact however that the classification by itself is reasonable is not enough to support it unless there is nexus between the classification and the object to be achieved. Therefore, as the object to be achieved in a case of the kind with which we are concerned is to get the best talent for admission to professional colleges, the allocation of seats districtwise has no reasonable relation with the object to be achieved. If anything such allocation will result in many cases in the object being destroyed, and if that is so, the classification, even if reasonable, would result in discrimination, inasmuch as better qualified candidates from one district may be rejected while less qualified candidates from other districts may be admitted from either of the two sources."
19. The justification given by the State of Madras was found by the Court to be not acceptable and it was held that no case for district wise allocation of seats in medical colleges was made out.
20. From the above decision it is apparent that district wise classification is not per se bad, but can be upheld depending on the object sought to be achieved and the justification for it. In fact, Wanchoo, J. (as he then was) in Ram Sharan v. The Dy. Inspector General of Police Ajmer, AIR 1964 SC 1559 upheld the promotion from head constable to Sub-Inspector "within the range" in Rajasthan. He opined that the system of promotion of head-constables to sub-inspectors within a range can be rationally supported on the basis that inter range transfers of sub-inspectors would be matter of rare occurrence and would not be effected liberally or for ulterior motives.
21. Consequently, it is necessary to examine what is the object sought to be achieved in the present case. What is the justification that the State Government has put forward? As opined by Mr. Justice Krishna Iyer in Dr. Jagdish Saran v. Union of India, AIR 1980 SC 820; "when protective discrimination promotional of equalisation is pleaded", the burden of justifying the ex facie deviation from equality is on the party who seeks to justify it.
22. In the facts as above indicated, the object sought to be achieved is to provide competent primary education, especially for children belonging to rural areas; the justification as pleaded by the State Government is that it is the interests of this object to have a district wise selection; as the purpose of selecting candidates for the J.B.T. course is that they will be available to teach such children at the primary stage and communicate with them in a manner that the children learn well and are interested in staying on in schools.
23. A reading of the two affidavits of the Director of Primary Education, as above noticed, would indicate that the main feature of this scheme of district wise selection to the course is that there should be sufficient J.B.T. teachers as per the vacancies available who are well equipped to communicate with the students of the primary classes in their own dialect, so that they can teach them well. Since there are various dialects in the districts of Himachal Pradcsh, as recognised and demonstrated from the district gazeteers of Chamba, Bilaspur. Sirmur etc., the creating of a district wise cadre is essential so that the teachers are familiar with the dialect, customs and manners and so able to communicate well with the children; administrative efficiency can also be maintained as they are to be under the charge of the District Primary Education Officer.
24. Education of young children is one of the most important factors in the development of a nation. A strong foundation of universal literacy is a must, so that poverty, ignorance and superstition can be done away with. There is an old oriental proverb which says "if you plan one year ahead you plant rice, if you plan ten years ahead you plant trees and if you plan a hundred years ahead you educate children."
25. But what is the best way to educate small children and who are the best teachers ? Is district wise selection of personnel permissible for the purpose? This is the point in issue. What is best for higher education is not necessarily best of primary education. In case of college and university education, the factors to be considered are necessarily different. In the case of higher secondary education or even secondary education in Himachal Pradesh, the cadre is State wise and not district wise. The Supreme Court cases above referred deal mainly with medical education or higher education and different considerations arise. In the case of primary education especially for the children from rural areas, who are normally "first generation learners" it is essential that the teachers are able to communicate with them effectively. This is possible and more likely if they belong to that area or adjacent to it, so that they are familiar with the customs and language. Thus having a greater affinity are more easily accessible to the children.
26. It appears to us, that though in high schools knowledge of the local language may not be relevant, but at the primary stage, where it is the child's first contact with the educational process, knowledge of the language which he knows well, certainly helps the learning process. It is true that there are dialects and sub-dialects but it is not possible nor feasible to further sub-divide, and consequently district wise selection can be justified in the facts of the case.
27. There is no dispute that the children who attend primary schools are between the ages of five to ten, as primary education is from classes 1 to 5. This is a most receptive age and children imitate fast. Most of the children who join the primary education schools in Himachal Pradesh are predominantly from sections of the population in which they are "first generation learners". There is hardly any nursery education or pre-primary education in villages of Himachal Pradesh. A school for a small child should ideally be an extension of his home so that the child can develop in a holistic and natural way.
28. Article 45 of the Constitution provides that the State shall, within ten years from its commencement, endeavour to give free and compulsory education to all children till the age of fourteen years. It is a well known fact that despite more than four decades having elapsed since the Constitution came into existence, this has not become a reality. The results of primary education and literacy have been unsatisfactory. One of the major problems has been the high drop out rate. It is necessary to ensure, as mentioned in the National Policy on Education-1986, that the new thrust in elementary education will emphasise two aspects:
(1) universal enrolment and universal retention of children up to fourteen years of age; and
(2) a substantial improvement in the quality of education.
29. In order to ensure that young children will not drop out from schools, a child centred approach is required; a warm, welcoming and encouraging attitude by the teacher towards the child is the best motivation for him to attend school and learn quickly and happily. He should be allowed to set his own pace and be given supplementary remedial instruction. A non-formal education programme has also been recommended. It is only when the child grows up that "the component of cognitive learning" will be increased and skills organised through practice.
30. It has been suggested in the said Educational Policy that talented and dedicated young men and women "from the local community" be chosen to serve as instructors and particular attention be paid to their training; effective steps be taken to provide a framework for the curriculum on the lines of the national core curriculum but based on needs of the learners and related to their "local environment". The programmes should provide a participatory learning environment and activities such as games and sports, cultural programmes, excursions, etc.
31. A teacher who knows the culture and the language of the student is surely the best person to provide this participatory environment.
32. The highest priority in the new Education Policy has been given to solving the problem of children dropping out of school; this is to be achieved by adopting an array of meticulously formulated strategies based "on micro planning" and applied at the grassroots level to ensure children's retention at schools. This effort is to be fully co-ordinated with the network of non-formal education so that all children who attain the age of about eleven will have had five years of schooling or its equivalent through the non-formal stream and free and compulsory education up to fourteen years of age.
33. The Teacher and Society, a report of the National Commission on Teachers, 1985 has discussed the role of teachers and the problem of drop outs. It has stated that a motivated teacher can do much to retain a student. This can be done by his establishing a better relationship with the students, by establishing communication with the parents and helping them to see the value of education their children, by providing remedial help and encouragement where needed, and above all by making his own teaching interesting, relevant and effective. The teaching of reading in class I is defective as it lays stress on memorisation of a page rather than on reading with understanding and consequently the child becomes totally disinterested in reading. It is only if teaching improves and becomes more interesting that students can be saved and retained.
34. On the subject of reading, it has been observed that it is important to point out that in preparing instructional materials for the primary school child, particularly at the early stages, every care must be taken to use words which are "close to the child's own linguistic background and environment". A research project conducted by the Homi Bhabha Centre for Science Education revealed that simplifying the language of exposition of science texts considerably improved the performance of students and led to a much better teacher-pupil interaction in the classroom. In another project to improve the scholastic achievement of scheduled caste students, it was found that the use of difficult unfamiliar words, lack of visual imagery, and the inability of the teacher to convey clearly to the child the rules of the game prevented concept formation. It was found that once these difficulties are identified and removed, learning becomes smoother and faster.
35. The teacher's involvement must obviously extend also to non-formal education to be provided for children who had dropped out early, in the primary stage, and who are still in the age group of six to thirteen. This also provides the necessary link-ups between formal and non-formal education.
36. There is no doubt that talent is the need of the hour. But what is the best talent is to be seen in the context of the case. Who is the best person to teach or introduce a small child to the learning process. In reality, it should be the mother; but as is the case of most of the children who are first generation learners and whose first exposure to learning is at the primary level, the teacher who can communicate well with the children will be best person to teach them. At this stage the children have to learn the three rules that is reading, writing and arithmetic. Thus taking an extreme example however talented a PhD in mathematics from an American University may be, he will certainly not be the best person to teach a child from a rural area of Himachal Pradesh, who is five years old and has perhaps never been exposed to any of the modern influences or even the Hindi language. Till the stage a child enters the primary school, he has been communicating mainly with his mother and relatives in language that is first spoken to him in the cradle and in which his mother has sung lullabies to him and communicated with him. Consequently we are of the view that district wise selection is a valid and reasonable classification and there is a nexus with the object sought to be achieved which is to educate children at the primary stage.
37. An argument that district wise selection will result in non-equality of education, as noticed by the United Sates Supreme Court in Oliver Brosn et al. v. Board of Education of Topeka et al., 98 L ed 873, wherein it rejected the "separate but equal" doctrine as not tenable in the facts of the case. In that case Negro children were denied admission to State public schools attended by white children under State laws requiring or permitting segregation according to race. It was held unanimously that the Negro children by reason of the segregation complained of, were deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. The "separate but equal" doctrine involving equality in transportation facilities, under which equality of treatment was accorded by providing Negroes and whites substantially equal, though separate, facilities, was held to have no place in the field of public education.
38. There is no doubt that national development is dependent on the expansion of formal education. Consequently universal primary education is the need of the hour in India. Most of the people reside in villages and are first generation learners. In Himachal Pradesh the terrain is difficult and often inaccessible so that exposure is very limited and this is a consideration while planning the education of children at the very first stage. As teachers play the most important role in making the primary educational programmes a success it is essential that a group of persons who can identify and communicate well with the students is prepared. Since the children are mainly from rural backgrounds knowledge of customs, language etc. is certainly an advantage to force the pace of learning.
39. It is admitted that there is no requirement based on place of birth in the admission process for the JBT course, but the district wise allocation is based on persons "belonging to" a particular district. Consequently the prohibition contained in Article 15(1) is not attracted. Nor is Article 29(2) attracted because there is admittedly no denial of admission to the JBT course on the basis of language. The knowledge of a particular language is only a factor which has been taken into consideration in allocating the seats district wise.
40. The petitioners in Writ Petition No. 768 of 1991 have also challenged the procedure of selection of the dependents of freedom fighters but this aspect was neither argued nor pressed.
41. Consequently, for the reasons outlined above we are of the view that district wise selection has to be upheld and, it is not violative of Article 14 in the facts of the case and the justification given.
42. Mr. Rajiv Sharma, learned counsel for the petitioners has made an impassioned plea that the petitioners who were granted provisional admission by the Court on 30th December, 1991 and 10th January, 1992 should be allowed to continue. According to him two or three seats are "a drop in the ocean" when there are 1500 seats in all and this will not dilute the standard of education.
43. He has relied on the judgment of this Court in Anil Minhas v. H. P. University, ILR 1986 HP 10 : (AIR 1987 HP 83). In the said case, after re-examination/ re-checking it was revealed that one of the petitioners had secured 218 marks against 217 marks secured on the original evaluation. The last candidate admitted in the First Year MBBS Course in the academic session 1985-86 had also secured 218 marks; but the relevant rule provided that inter se ranking of candidates obtaining equal aggregate marks would depend on the aggregate marks obtained in Physics, Chemistry and Biology of the qualifying examination (Pre-Medical). Admittedly, the petitioner had obtained higher aggregate marks than the last candidate admitted on the strength of his having secured 218 marks. Consequently, the petitioner became entitled to claim admission in preference to the said candidate. The Court issued notice to the Medical Council of India to show cause why the Court should not direct that one seat be increased in the First Year MBBS Course in the Indira Gandhi Medical College, Shimla in the academic session 1985- 86 in order to give admission to the said petitioner. Since the Medical Council was not agreeable to increase a seat as, according to it, this would adversely affect the standard of medical education, the only other course for granting relief to the petitioner was to quash the admission of the last candidate who had been admitted in the course six months pre viously. The Court felt that to adopt such a course would be "inexpedient in the interest of justice". The Court opined that one more seat to a course for which sixty-five seats are already sanctioned by the Medical Council "cannot possibly disturb the academic balance to such an extent that it can be regarded as adversely affecting the standard of medical education". Consequently, the Court directed that the petitioner be given admission by increasing one seat.
44. In State of Uttar Pradesh v. Dr. Anupam Gupta, AIR 1992 SC 932, the Supreme Court held that to maintain excellence in medical colleges, admissions in midstream would disturb the courses and also work as an handicap to the candidates themselves to achieve excellence. Therefore, vacancies of seats should not be taken as a ground to give admission. Consequently, the High Court's direction to admit candidates in those vacancies was set aside.
45. In Dr. Subodh Nautiyal v. State of U.P., AIR 1991 SC 1131, the Supreme Court held that the course throughout India is intended to commence on a articular date and, therefore, admissions must be over prior to the date of such commencement. Admittedly, the course started in September and is a technical course, and to admit a student four months after its commencement would not be correct. The application was rejected.
46. In U. P. Junior Doctors' Action Committee v. Dr. B. Sheetal Nandwani and Principal, S. N. Medical College, Agra v. Dr. Abdul Latif, 1992 (1) SLR 94 : (AIR 1991 SC 909), the Supreme Court has stated :
"It is well-known rule of practice and procedure that at interlocutory stage a relief which is asked for and is available at the disposal of the matter is not granted. The writ petitioners wanted admission into post-graduate course as the main relief in the writ petition. To have it granted at the threshold creates a lot of difficulties. In a case where the petitioner ultimately loses in a case of this type a very embarrassing situation crops up. If he has by then read for two to three years, there is a claim of equity raised on the plea that one cannot reverse the course of time. In a case of this type equities should not be claimed or granted. Taking an overall picture of the matter we are of the view that unless there is any special reason to be indicated in clear terms in an interlocutory order as a rule no provisional admission should be granted and more so into technical courses."
47. However, though the Supreme Court opined that on "the basis of what we have said the order of the High Court should be reversed" they did not do so, inter alia, as more than nine months had elapsed since the order of admission had been made.
48. In the present case also, Lalima Gupta and Kanchan Bala were granted provisional admission by an order of 30th December, 1991 and Surinder Kumar by an order dated 10th January, 1992, i.e. at the commencement of the course. The order was made after notice to the respondents.
49. Though the petitioners have not succeeded in their challenge to the district wise selection and should automatically be thrown out of the two year JBT course, but as a substantial part of the course is over and three persons out of 1500 will not affect the entire scheme and object of advancement of primary education, we are not setting aside their admission. Though we reiterate what has been said by the Supreme Court that provisional admission should not be granted in such cases.
50. The writ petitions are disposed of accordingly. However, we make no order as to costs.