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Published in the 16-31 Jan 2004 print edition of MG; send me the print edition

‘Domicile’ in Public Employment
Need for rethinking and systemic change
By Syed Shahabuddin

The recent storm on the State Government’s refusal to impose requirement of domicile for public employment in Jharkhand, the revival of agitation by the Shiv Sena in Mumbai against ‘outsiders’ and violent outbursts in Assam against Biharis are in essence manifestations of economic under development, employment opportunity not keeping pace with the rise in population and education and the increasing gap between the number of persons entering the job market and its relative stagnation. Invariably the local people murmur and complain against the outsiders, inundating the job market. In Jammu and Kashmir a major public grievance has been that all central government offices, even at the category C and D levels, are exclusively manned by non-Kashmiris. The recent agitation in West Bengal and Bihar for the transfer of the headquarter of a railway division to Hajipur had nothing but rivalry in employment at its root.

Constitutional Position
The word ‘domicile’ is used in Article 5 of the Constitution to define citizenship, in relation to the territory of India and not in relation to any constituent State or territory or part thereof. Domicile combines the fact of residence with the intention of not moving in future. In this wider sense, every person has a domicile of origin by birth but he can acquire a new domicile. 

Article 15 Clause (1) of the Constitution prohibits discrimination against any citizen on ground only of religion, race, caste, sex, place of birth or any of them. The word ‘only’ is significant as discrimination or difference in treatment based on two or more of these grounds (such as language) is not barred.

Article 16 Clause (I) prescribed equality of opportunity for all citizens in public employment and the subsequent clause (2) says that no citizen shall on ground only of religion, race, caste, sex, descent, place of birth, residence or any of them be discriminated against in employment or office under the State. Again the word ‘only’ needs to be noted.

It may be noted that the phrase ‘place of birth’ occurs in both Clauses (1) and (2) of Article 15 and Clause (2) of the Article 16. This clearly bars ‘provincialism’ or regionalism or localism even at the lowest level of district or block or panchayat. Article 16(2) , unlike Article 15(1) or 15(2) adds the word ‘residence’. Thus while it becomes constitutionally permissible for the State to discriminate on the ground of residence in the State in matters other than public employment, for example, admission to University/professional college, residence in the state cannot be a ground for discrimination in public employment against the non-residents! This means that as a matter of general rule domicile cannot be a condition for employment under the State.

However, Clause (3) of Article 15 empowers the Parliament, though not the State legislature, to make any law in regard to a class or classes of employment, prescribing residence in a particular state a requirement for such employment within that State. In the absence of any such law, the State cannot give preference to a local candidate.

However, the pre-Constitution rules and regulations giving preference to local candidates were upheld under Article 35(b), unless altered or repealed or amended by the Parliament.

In 1957, the Parliament adopted the Public Employment (Requirement as to Residence) Act 1957. This Act repealed all existing laws prescribing requirements as to residence but empowered the Government to make exceptions in special circumstances as in A.P., Himachal Pradesh, Manipur and Tripura for appointment in subordinate services largely on linguistic grounds for a period not exceeding 5 years. This was extended by subsequent amendments.

To sum up, the Constitution in Article 16 bars discrimination in public employment on the basis of residence and thus prohibits ‘provincialism’. The Public Employment (Requirement as to Residence) Act, 1957 generally repeals all pre-Constitution laws, rules and regulations in this regard with a few limited exceptions. For all practical purposes, the whole national territory is a common job market just as there is a common citizenship.

Also, the Constitution grants all citizens the right to move freely throughout the national territory and to reside and settle anywhere and to practise any profession or to carry on any occupation, trade or business under Article 19(1)(d), (e) and (g), subject to reasonable restrictions in public interest. Thus, on the face of it, the domicile movement against economically propelled migration from other parts of the country has no notional logic or legal merit to stand on.

Plea to Reconsider Relevance of Domicile in Public Employment
But in the light of the experience of over 50 years, it is time to reconsider the requirement of domicile in public employment, so as to satisfy local urges, in a graded manner, in a country of continental dimensions and great diversities.

With development, the scope of governance and, therefore, the number of government jobs have increased though they may have already peaked and be on the decline at present. For various sociological reasons, government service, even in the lowest category, continues to be the biggest draw. There were more than 25 lakh applicants for about 20,000 Railway jobs in Category D in Secunderabad. Applicants included holders of Master’s degree though the minimum qualification was class VIII. The mass competition for government service among the educated unemployed is a combination of many factors – the social status it brings, the relative security it enjoys, particularly compared to private service, the opportunity for making additional income and the prospect of life time family pension and protection against inflation. In fact, offer of one government job to every family has become the standard and typical promise of every government in case of man-made or natural disasters and of every political party in election. Government service has even become part of the ‘dowry’ in many arranged marriages.

The institution of reservation in favour of the SC’s, ST’s and OBC’s has brought it within the striking distance of every enterprising youth. Public employment remains the most sought after avenue of opportunity and perhaps the most competitive in which no holds are barred.

‘Sifarish and pairvi’, the classical and conventional modes of influencing decision-making at the lower level of employment, have now touched the top of the ladder and are now visible in the upper reaches, propelled by huge sums of money which is not all pocketted by the middleman but reaches right to the top.

The rising demand shows that with the exception of highly technical appointments requiring special qualification or expertise, the number of the candidates who have the minimum qualification is sometimes thousands times the number of vacancies. It also means an abundance of over-qualified candidates. It also signifies that with the contraction of space and expansion of communication, potential candidates from one end of the country or the State apply against vacancies at the other end, for clerical and even menial government jobs, and jam the levers of the selection system everywhere.

It may be argued that the present system of recruitment for public employment, though prima facie wasteful, promotes national integration through interaction among the people of various regions. In actual fact, the government servant cut off from his cultural moorings is no more than a transient, a bird of passage; he has little social interaction with and almost no interest in the development of the local people. Many a time he keeps his family and children back home, maintains two establishments and invests his savings and ‘loot’ in his village or town he comes from. Posting becomes no more than an opportunity to make as much money as possible in the shortest time. 

For the local community he remains a stranger; his very presence is resented. The ambience is uncomfortable. There is no social intercourse and, therefore, no social control on public dealings or mercenary approach. Aloofness coupled with resentment promotes alienation and separateness, not integration.

But what is more important is the human cost. Imagine the waste of energy and money in obtaining application forms, submitting it in time, travelling for tests or interview, if called. Imagine the lakhs of hopeful youth criss-crossing the national territory, in rain and shine, in search of the elusive job, with a very small success ratio; imagine the disappointment and frustration at the end of it all.

And, then, look at the additional cost incurred by the State for employing a person from another end of the country or the State, the outlay on leave and holiday travel concessions, on children’s education. Imagine the disturbance to the education of the children if an employee takes his family with him to the place of posting.

Other facts may be kept in view. Education is expanding and persons with minimum qualification are available everywhere for practically all jobs. Even the concept of special eligibility in terms of martial races for the defence forces or imported toughs for the police force is dying.

Proposal for Decentralization of Recruitments
Since the Constitution proposes decentralization and, in particular, it envisages Panchayat Raj as a form of Self-government (Article 40) and since public employment has been classified into 4 grades or classes or categories, it is possible for the state to prescribe a Zone of Selection for each. These Zones should be based on the administrative divisions and prescribe linguistic qualification for each administrative unit in terms of the principal languages spoken in the area and thus escape the constitutional bar.

The recruitment to all public employment against vacancies in each zone should be from among the eligible persons/applicants residing within the zone.

The Zone of Selection should also serve as the Zone of Transfer and the employee should be transferable only within the Zone until he is promoted to the next higher category and, therefore, has a bigger zone to move around. Specifically, 

Grade D Central Government employees should be recruited from within the district where the posts are located;

Grade C should be recruited from the administrative Divisions/Regions of a big State;

Grade B should be recruited from the State as a whole or from a group of neighbouring States.

Grade A from the country, as a whole.
The same recruitment policy should apply to such Central institutions as the public sector undertakings, banks, railways, armed forces, para-military forces and central government offices located in the States.

In the case of State Government employees, the four Recruitment Zones should consist of tehsils/blocks, districts, administrative divisions and the State as whole.

Thus the recruitment system shall stand decentralized. The Central and State Public Service Commissions should be charged with recruitment exclusively for category A cadres/posts. There should be Selection Boards at divisional and district headquarters. The Railway Service Boards, the Army Selection Boards, the Banking Service Selection Board should all be decentralized in the same manner. Non-executive, clerical and menial posts in the central and regional offices of the Central Government should be manned by proportional deputation from the next lower levels, so that proximity does not give undue advantage to the residents of the places where these offices are situated. At all levels, recruitment should remain subject to the reservation regime in force as modified by the social demography of the Zone of Selection.

The recent experience of mismanagement of recruitment by the Railways has also brought out one aspect. The examination for a particular category should be held on the same date throughout the country or the state so that a candidate is limited to one examination centre and one chance only and he is stopped from trying his luck in all centres on different dates! Inter alia, this should reduce the pressure on the examination infra-structure. This step alone should bring down the number of applicants from outside.

Advantages of Decentralization
» Tension between the people of a State and the outsiders as well as among different regions/districts/tehsils/Panchayats of the State shall cease.

» Heart burning about the domination of local offices by the outsiders will cease.

» Government employees posted closer to home will interact more intimately with the local people and the level of social control will rise.

» Administrative cost per employee will go down as well as the financial burden on the employee.

» Unfair preferences, in discretionary appointments, by the recruiting authorities and the tendency to inundate selection in lower posts with candidates from their own areas or group affinity will be moderated, if not entirely eliminated.

» The Panchayati Raj Institutions shall emerge as the kingpin by associating local talent with the development process and also wield disciplinary control over the staff they recruit. Both will improve social delivery.

» There is absolutely no reason why the primary school teacher, the local constable, the village level worker, the panchayat accountant, the medical and para-medical staff in the primary health centres, the junior engineer for the maintenance of rural roads etc., should not either be the appointees of the Gram Panchayat or on deputation from Block Panchayat or Zila Panchayat.

» The proposed system will provide real and not just notional equality of opportunity to all candidates as they would come from the same Zone. There shall be keen competition among locals, unshackled by consideration of money or distance.

Need for Constitutional Amendment

This systematic change can be achieved obviously only with an amendment to the Constitution which should permit discretion by the State on ground of residence/domicile/language in respect of recruitment to all public employment, except to the highest gazetted level. Once upon a time the Central Secretariat was Bengali dominated; then came a time when it was ‘Madrasi’ dominated. In fact it was said to suffer from ‘Menon-gitis’. Now the ‘Punjabis’ have come to dominate it – perhaps by virtue of geographical proximity but by the pull and pressure exercised by the insiders to get more of their own kin inducted. This is a universal phenomenon, perhaps a deficit in our Indianness but the only way to contain it within manageable limits is through prescription of law, rules and regulations which make for equality social justice.

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