Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 22
PETITIONER:
JANKI PRASAD PARIMOO & ORS. ETC. ETC.
Vs.
RESPONDENT:
STATE OF JAMMU & KASHMIR & ORS.
DATE OF JUDGMENT10/01/1973
BENCH:
PALEKAR, D.G.
BENCH:
PALEKAR, D.G.
SIKRI, S.M. (CJ)
RAY, A.N.
BEG, M. HAMEEDULLAH
DWIVEDI, S.N.
CITATION:
1973 AIR 930 1973 SCR (3) 236
1973 SCC (1) 420
CITATOR INFO :
RF 1975 SC 446 (19)
RF 1975 SC 563 (24)
RF 1980 SC1975 (7,9)
R 1985 SC1495 (15,64,144)
R 1992 SC 1 (92)
ACT:
The Jammu & Kashmir Civil Services Classification Control
and Appeals) Rules 1969-Selection for promotion of teachers
to posts of headmaster and higher posts-Selection to be on
merit-cum-seniority basis-Selection on basis of interview
only without taking into account character roll and
confidential reports of candidates and by adopting a very
low cutting score cannot be upheld.
Jammu & Kashmir Scheduled Castes and Backward Classes
(Reservation Rules) 1970-Backward classes, what are-
Principles for determining-Rules whether violative Art.
16(4), Constitution of India.
HEADNOTE:
On 14-6-1956 the State of Jammu & Kashmir promulgated the
Jammu & Kashmir Civil Services (Classification Control &
Appeals) Rules 1956. Rule 19 provided that reservation was
permitted to be made in favour of any backward class which
in the opinion of the Government, was not adequately
represented in service. Rule 25(2) related to promotions
which were to be made on merit-cum-seniority basis. The
State, relating Muslims as a backward class gave them a
reservation of 50% in the matter of promotion of teachers to
the post of headmasters. This Court in Triloki Nath v.
State of Jammu & Kashmir, [1967] 2 S.C.R. 265 and Makhanlal
Waza & Ors. v. State of Jammu & Kashmir & Ors., [1971] 3
S.C.R. 832 held that the ,promotions of muslims to the posts
of headmasters or teachers-in-charge were made on the basis
of a communal policy and against the aforesaid 1956 Rules.
After the decision in Makhanlal Maza’s case the State by an
order dated 23-2-1971 reverted all those teachers who had
officiated as headmasters or had-been designated as
teachers-in-charge. A Departmental Promotion Committee was
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 22
appointed in accordance with the rules and the Committee was
directed to interview the candidates. The interviews were
held from March to July 1971. The selections were to be
made in accordance with the Jammu & Kashmir Civil Services
(Classification Central and Appeals) Rules 1969 which had
replaced the old rules of 1956. Meanwhile in accordance
with the recommendations of the Backward Classes Committee
the State Government had also issued on April 18, 1970 the
Jammu & Kashmir Scheduled Castes & Backward Classes
(Reservation Rules) 1970. Later, on August 8, 1970, a
further order, was passed known as Jammu & Kashmir Scheduled Caste
s & Backward Classes (Reservation of appointment by
Promotion) Rules 1970. The present petitioners were
adversely affected by the selections made by the aforesaid
Departmental Promotion Committee in 1971. In their
petitions under Art. 32 of the Constitution the questions
that fell for consideration were : (i) whether the
selections made after interviews were improper and illegal
and should be set aside; (ii) whether the Rules of
reservation of posts in favour of backward classes are in
violation of Art. 16 of the Constitution and should be set
aside.
HELD : (i) Undoubtedly when appointments to higher posts are
made it may be perfectly legitimate to test the candidates
at a Properly .conducted interview. But interview cannot be
made the sole test in
237
cases of this kind. The efficiency of a teacher and his
qualifications, to be appointed as Headmaster depend on
several considerations. His character’ his teaching
experience, ability to manage his class, his. popularity
with the students and the high proportion of successful
students he is able to produce are all matters which must IV
necessarily taken into consideration before a selection is
made. For this any Committee which desires to make a
selection after interview should insist that the character
roll and the service record of the teacher should be before
it. In the present case however the Committee did not have
before it either the character rolls or service records- of
the teachers nor any confidential reports about them. They
had to go merely by the result of the interview. The
Committee was wrong in undertaking to make the selections on
the basis of mere interviews. [246 D]
Further, the expert adviser had advised 50% as the cutting
score,. but the Committee adopted 30% as the cutting score.
The expert found that there were many candidates who could
not score even 30% marks and so the Committee decided that
even candidates who got only 20% marks from the expert may
be considered. In this way those who got more than 30%
marks from the Committee and more than 20% marks from the
expert were declared eligible for selection. This was
indeed a travesty of selection. A selection made on such a.
poor basis cannot be called a selection at all. [248 H]
For the reasons given above the whole process of selection
must be held to be wrong and unsatisfactory.
(ii) Art. 15(4) speaks about "socially and educationally
backward. classes citizens" while Art. 16(4) speak only of
"any backward classes of citizens". However it is now
settled that the expression "backward. class of citizens" in
Art. 16(4) means the same thing as the expression. ,, any
socially and educationally backward class of citizens" in
Art. 15(4). It is social and educational backwardness of a
class which is material, for the purposes of both Articles
15(4) and 16(4). [249 G]
Mere poverty cannot be the test of backwardness because in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 22
this. country except for a small percentage of the
population the people are generally poor-some being more
poor, others less poor. In the rural’ areas some sectors of
the population are advancing socially and educationally
while other sectors are apathetic. These sectors require to
be goaded into the social stream by positive efforts by the
State. That accounts for the raison d’etre of the principle
explained in Balaji’s case which pointed out that backward
classes for whose improvement special provision was
contemplated by Art. 15(4) must be comparable to Scheduled
Castes and Scheduled Tribes who are standing examples of
backwardness socially and educationally. If those examples
are steadily kept before the mind the difficulty in
determining which other class is should be ranked as
backward classes will be considerably lased [252 D]
In identifying backward classes one has to guard oneself
against including therein sections which are socially and
educationally advanced’ because the whole object of
reservation would otherwise be frustrated. [253 D]
M. R. Balaji Ors. v. State of Mysore, [1963] Supp. 1
S.C.R. 439. State of Andhra Pradesh v. P. Sagar, [1968] 3
S.C.R. 595 and R. Chitralekha & Anr. v. State of Mysore.
[1964] 6 S.C.R. 368 referred to.
238
(iii) The Jammu & Kashmir Scheduled Castes and Backward
Classes (Reservation Rules) 1970 were defective and
incapable of being given effect to for the following reasons
(a) Several of the occupations mentioned as traditional in
Rule 4 Chapter I cannot be regarded as traditional. An
agricultural labourer is just a labourer whose services are
utilised wherever unskilled labour is required. His
occupation cannot be identified as a traditional occupation.
Similarly it is difficult to say that the occupations
mentioned in items (5), (7), (1 1), (20), (21), (23), (29),
(48), (51), (53), (58) and (62) of Rule 4 are traditional.
These occupation do not require special skills developed
by tradition and can be resorted to by any body with the
requisite resources.
(b) Priestly classes listed at Serial Nos. 34 and 56 though
following a traditional profession can hardly be regarded as
socially and educationally backward,
(c) The definition of ’traditional occupation’ in rule 2(j)
is open to serious objection. Under it if a person wants
the special advantage as a member of the backward class it
is enough for him to show that his grand father was
following a traditional occupation. His father may not be
following the traditional occupation at all. If the father
of the person who claims special treatment under Articles
15(4) and 16(4) has given up his low income occupation and
become a trader or Government Servant it will be wrong to
give the persons the, special benefit merely on the ground
that his grandfather was following a certain traditional
occupation.
(d) It was not known on what basis the Government in Rule 5
had included castes mentioned at serial Nos. 20 to 23 as
socially and educationally backward.
(e) The designation of cultivators of land as backward on
the basis of the size of the holding, as had been done in
Chapter III of the Rules must be held to be erroneous. The
error in such a, case lies in placing economic consideration
alone above considerations which go to show whether a
particular class is socially and educationally ,backward.
(f) The same error is repeated in Chapter IV wherein the
dependent ,,Of a. pensioner is supposed to belong to the
backward class if such pensioner has retired from certain
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 22
Government posts mentioned in Appendix I and if the maximum
of the scale of pay of these posts did not exceed Rs. 100/-
p.m. In days when sources of employment were few many people
though socially advanced might have accepted low paid jobs.
(g) Although the residents of certain areas specified in
Chapter and VI of the Rules are rightly designated as
backward, Rules 10 and 11 have been so framed that the
advantage is likely to be misused by importers. Outsiders
who, in the course of their trade or business happened to
live in these areas for- 10 years out of the past 20 years
would be able to claim the benefit. This loophole must be
plugged and till that is done, the production of a
certificate from the Tehsildar as to the backwardness of any
person will be of little avail.
In view of the above findings the selections made by the
Departmental Promotion Committee must be set aside. [260 C]
239
[Since it would take time to revise the rules and to make
new selections the Court gave directions to be followed by
the State authorities].
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petitions Nos. 175, 359 and 360
of 1971.
Petitions under Article 32 of the Constitution of India for
the enforcement of fundamental rights.
A. K. Sen, Naunit Lal and I. N. Shroff, for the
Petitioners (in all the petitions)
S. V. Gupte, O. C. Mathur, P. C. Bhartari and Bhuvanesh
Kumari, for respondents Nos. 1 and 2 (in W. P. Nos. 175 and
359)
O. C. Mathur, P. C. Bhartari and Bhuvanesh Kumari for res-
pondents Nos. 1 & 2 (in W.P. No. 360).
M. C. Chagla and S. N. Prasad, for respondents Nos. 3-5,
8-10, 14, 16, 17, 19, 20-24, 31-34 (in W.P. No. 175)
E. C. Agarwala, for respondents No 6, 27 (in W.P. No. 175)
Jagmohan Khanna, for respondents No. 30 (in W.P. No. 175)
The Judgment of the Court was delivered by
PALEKAR, J. These three petitions under Article 32 are a
sequel to the action taken by the State of Jammu & Kashmir
in pursuance of the order passed by this Court in Makhanlal
Waza & Ors. v. State of Jammu & Kashmir & Ors. on February
23, 1971. In order to understand the background of these
cases it would be sufficient to state here in bare outline
the facts which are given in greater detail in the above
case reported in [1971](3) S.C.R. 832.
Owing to historical reasons there was a large proportion of
Kashmiri Pandits in the services of the State, especially,
in the teaching line, although that community is hardly 2%
of the total population of the State. In course of time
other communities who were in a majority in the State
agitated for a larger share in the services, with the result
that prior to 1954 recruitment was made to the services in
proportion to the population of the major communities in the
State.
In 1954 Part III of the Indian Constitution with some
modifications was made applicable to the State. In spite of
it representation in the services followed the communal
pattern. On 14th Juno 1956 the State promulgated the Jammu
& Kashmir Civil Services (Classification Control & Appeals)
Rules, 1956. Rule 19 provided that reservation was
permitted to be made in favour
240
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 22
of any backward class which, in the opinion of the
Government, was not adequately represented in the service.
Rule 25(2) related to promotions. It provided that
promotions to a service or class or to a selection category
or grade in such service or class shall be made on grounds
of merit and ability and shall be subject to the passing of
any tests that Government may prescribe in this behalf,
seniority being considered only where the merit and ability
are approximately equal. In other words, promotions were to
be made by selection on merit-cum-seniority basis.
Notwithstanding the rules, the State followed the communal
pattern of appointments and promotions, reserving 50% of the
posts for Muslims, 40% mainly to the Hindu of Jammu and the
remaining 10% for Sikhs, Kashmiri Pandits and other minority
communities. This led to an agitation, especially, by the
teachers in the Secondary High Schools of the State who
comprised a large proportion of Kashmiri Pandits. They
found that in spite of their seniority in the service as
teachers, promotions to the post of Head Masters and Tehsil
Education Officers which are gazetted posts in the service,
were being made on communal basis and not in accordance with
the law.
In December 1965 Triloki Nath Tikoo and Shambu Nath filed
Writ Petition No. 107 of 1965 in this Court alleging that
promotions to the posts of Head Masters had been made in
contravention of Article 16 of the Constitution. The State
admitted that 50% of the posts were filled by the Muslim of
the State and 40% principally by the Hindus of Jammu. It
was. however, claimed that this reservation was made on the
ground that the Muslims of the State and Hindus of Jammu
province constituted backward classes referred to in Rule 19
and such reservation was justified under clause (4) of
Article 16. The Court found that there was no sufficient
material before it to decide if the claim made on behalf of
the State was justified and so by an order dated December
15, 1966 directed the High Court of Jammu & Kashmir to
gather the necessary material and to report on it. The
decision is reported as Triloki Nath v. State of Jammu &
Kashmir. (1)
After the material was collected the case again came before
this Court for consideration and this Court held (See :
Triloki Nath v. State of J&K.) (2) that on the material
before it it was clear that there was no reservation as
permitted by Article 16(4) but that the posts had been
distributed on the basis of community or place of residence.
The promotions were accordingly held to be invalid. The
order affected 81 teachers who had been promoted contrary to
the provisions of Article 16(1) and (4). Their promotions
were declared void. The Court observed "this will not,
(1) [1967] 2 S.C.R. 265. (2) [1969] 1 S.C.R. 103-
241
however, prevent the State from devising a scheme,
consistent with the constitutional guarantees, for
reservation of appointments, posts or promotions in favour
of any backward class of citizens which in the opinion of
the State is not adequately represented in the services
under the State." This order was passed by the Court on
April 23, 1968.
In view of the order, the above mentioned 81 teachers had to
revert. Along with them some others’ who had been promoted
in the meantime had also to revert. All of them were,
however, designated as teachers-in-charge because actually
they held the charge of the schools. There is a difference
between the parties before us as to whether there was any
actual reversion. It is alleged on behalf of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 22
petitioners that teachers-in-charge were, for all purposes,
including pay, Head Masters while, on the, other hand, it is
stated for the State that they were entitled only to the
grade pay as teachers and not as Head Masters. In any case
there seems to have been an anomalous situation which gave
rise to the second Writ Petition by the teachers. That is
Writ Petition 108/1969 filed by Makhanlal Waza and 10 Others
v. State of Jammu and Kashmir already referred to. To this
petition a large number of so called teachers-in-charge were
made parties. Actually there were about 249 teachers who
were made respondents. This Court found that all the
promotions of the respondents in that case were made not
purely on merit as required by rule 25 referred to above but
had been made on account of the communal policy which had
been declared invalid by this, Court in Triloki Nath Tikko’s
case. The Court further observed "in the absence of any
rule lawfully promulgated for employment of backward
classes, promotions could be made only in accordance with
rule 25 and there can be no manner of doubt that there was
absolutely no compliance with the provisions of that rule.
Promotions thus made of all the respondent teachers were
illegal and unconstitutional being violative of Article 16
of the Constitution. They have, therefore, to be set aside.
All the promotions made to the higher posts or the higher
grade pursuant to the communal policy would have to be
revised and reconsidered and appropriate orders must be
passed by respondents 1 and 2 with regard to them as also
the petitioners in accordance with the law". This order was
passed on February 23, 1971.
In view of the above decision the State had to take steps
for making proper selections on the basis of merit to the
gazetted posts of Head Masters and Tehsil Education Officers
from the eligible teachers. As a preliminary to the same
the State reverted by an order dated 23-2-1971. all those
teachers who had officiated as Head Masters or had been
designated as teachers--in-charge. All of them were asked
to hand over charge to the second teacher
17-L631 Sup CI/73
242
in the school. Nearly 1,100 teachers were found eligible
for promotion and all of them, including those who were
officiating Head Masters, were required to appear for an
interview. A Departmental Promotion Committee was appointed
in accordance with the rules and the Committee was directed
to interview the candidates. These interviews were held
from March to July, 1971.
But before the interviews were over the first of the Writ
Petitions before us namely Writ Petition 175/71 was filed by
7 Kashmiri Pandit teachers who had been affected by the
order reverting them on 23-3-1971. They were senior
teachers who were officiating as Head Masters being
appointed between 1960 and 1964 and had not been directly
affected by the two Writ Petitions already referred to.
They alleged that while they were promptly reverted
respondents 3 to 34 who were all junior to petitioner No. 1
and also to some of the other Petitioners had not been so
reverted nor were they asked to appear for the interview.
Therefore, they claimed, the petitioners should be either
restored to their former posts or the respondents should be
reverted like them in which case alone, all of them could be
regarded as having been equally treated. They justified
their refusal to appear for the interview on the ground that
respondents had been exempted from the interview and
continued in their former posts.
Writ Petitions 359 and 360/1971 were filed after the inter-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 22
views were over and selections made by the Committee. The
petitioners in Writ Petition No. 359/71 are 37 in number and
all of them belong to the Jammu region. Respondents 3 to
295 are some of the teachers selected for appointment to the
higher posts by promotion: The grievance of the petitioners
was that although they were seniors and had officiated as
Head Masters for a number of years they had been
deliberately dropped to make room for the respondents who
were very much junior to them. They alleged that the
selection by interview was a farce, the device being adopted
to manipulate the selections in such a way that the old
communal proportion was maintained. They further alleged
that a large number of posts was claimed to have been
reserved tinder the Rules for backward classes, but the
whole exercise was merely to secure about 90% of the posts
to Muslims. In other words, the complaint of the
petitioners was that the alleged selection after interview
was not a genuine selection but a fraud. Similar allega-
tions were made in the other petition, namely, Writ Petition
360/ 71. This was filed by 13 Kashmiri Pandit teachers in a
representative capacity on behalf of 400 other Kashmiri
Pandits who bad boycotted the interviews on the ground that
the interviews were bound to be a fraud. The respondents 3
to 325 are the teachers who had been selected at the
interview.
243
It must be stated here that in 1967 the Government of Jammu
& Kashmir had appointed the Jammu & Kashmir Commission of
Enquiry under the Chairmanship of Dr. P. B. Gajendragadkar.
Its report was submitted in November, 1968 and one of the
recommendations of the Commission was to appoint a high-
powered Committee to draw up a list of backward classes in
the State of Jammu & Kashmir. Accordingly, the Backward
Classes Committee was appointed under the Chairmanship of
Shri J. N. Wazir, Retired Chief Justice of Jammu & Kashmir
High Court, on February 3. 1969. This Committee made its
report in November. 1969 recommending several classes of
citizens who deserved to be described as socially and
educationally back-ward. Acting substantially on the
recommendations of the Committee the State Government issued
on April 18, 1970 the Jammu & Kashmir Scheduled Castes and
Backward Classes (Reservation Rules), 1970. These rules
purported to make provision for reservations of appointments
and posts in favour of certain classes of permanent resident
of the State who were backward and not adequately
represented in such services and posts. Later on August 8,
1970 a further order was passed by the State known as Jammu
& Kashmir Scheduled Castes and Backward Classes (Reservation
of appointment by Promotion) Rules. 1970. By these rules
the principles laid down for appointments under the earlier
rules were made applicable mutatis mutandis to promotions
also. The net result of the recommendations of the
Committee as accepted by the State was to make reservations
in appointments and promotions to the extent of 8 % of the
posts for Scheduled Castes and 42% in favour of the Backward
classes.
Since the above interviews had taken place after the
application of the above named Reservation Rules, the
Departmental Promotion Committee took these rules into
consideration in making the selections.
It is one of the complaints of the petitioners that though
the Committee had professed to follow the principles laid
down by this Court in several decisions, it had failed to
determine the backward classes in accordance with the
decisions of this Court. On the other hand, great anxiety
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 22
was shown, according to the petitioners, to rope in as many
persons from the majority communities as possible so that in
the selections made thereafter a disproportionate share in
the appointments and promotions would go to the majority
communities in Kashmir and Jammu.
In their affidavit in reply to the petitions the State
denied all the allegations made by the petitioners.
The principal points which were involved in these two
petitions are (1) whether the selections made after
interviews are improper
244
and illegal and should be set aside, (ii) whether the Rules
of reservation of posts in favour of backward classes are in
violation of Article 16 and should be set aside.
Before dealing with these points, we shall dispose of the
limited controversy involved in Writ Petition No. 175/71
although the conclusion on the above two points may
indirectly affect the parties in the Writ Petition. The
latter is filed by 7 Kashmiri Pandit teachers. They were
all officiating Head Masters when they were. reverted in
1971. Their grouse is that respondents 3 to 34 were junior
to them when they were in the teachers’ grade’ from which
the promotions were made to the Head Masters’ grade, and, if
the principle of equality applied, they should have been
also reverted along with the petitioners and required to
appear at the interview along with the petitioners. On
account of this unequal treatment, it is alleged, the
petitioners had refused to appear for the interview. It
cannot be disputed that petitioner No. 1 was the senior-most
in the grade of teachers from which the. promotion is made
to the post of the Head Master or Tehsil Education Officer.
The other petitioners also are seniors to some of the
respondents. But what happened is that owing to the
communal distribution of seats the respondents 3 to 34 were
all appointed as Head Masters in and before 1958. The
petitioners had to wait their turn in the 10% seats
earmarked for Kashmiri Pandits and others and, therefore,
although they were seniors in the grade of teachers, their
chance of appointment as Head Masters came much later.
Petitioner No. 1 was appointed as an officiating Head Master
in 1960. Petitioners 2 and 3 in 1962 and petitioners 4 to 7
in 1964. They all officiated as Head Masters till 1971 when
they were reverted. In the case of respondents 3 to 34 not
only were they promoted prior to 1958 but, except for
respondents 26. 27 and 30. they had all been confirmed in
the Head Masters’ posts before 1961. Some of the
respondents were further promoted as Principals and District
Education Officers which was a grade higher than that of
Head Masters. Somehow it appears respondents 26, 27 and 30,
though holding such higher grade posts. had not been
confirmed as Head Masters and they too were reverted as soon
as this petition was filed. It is not necessary for us to
investigate into the question why these 3 respondents had
not been confirmed although some other respondents who were
junior to them had been confirmed as Head Masters. It might
be simply an administrative omission or something also. But
one thing is clear. All these respondents 3 to 34 had been
appointed as Head Masters much before the petitioners and
most of them were also confirmed in the posts. There may be
some substance in the petitioners’ contention that the
earlier appointment of these respondents, being based on the
communal principle, was not a
245
valid appointment and, therefore, their confirmation may not
affect the question. On the other hand, it is to be noted
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 22
that the respondents seem not to have figured in Triloki
Nath Tikoo’s case (W.P. 107/1965) filed in 1965. It would
not, therefore, be proper to interfere with their
appointments now, especially, as in the meantime they have
been promoted to posts which are higher than of Head
Masters. Indeed if any one of the respondents was a
respondent in Writ Petition 107/1965 (Triloki Nath Tikoo’s
case) or in Writ Petition 108/1969 (Makhanlal’s case) in
which his appointment as Head Master had been set aside as
invalid, his case will have to be treated like that of any
other officiating Head Master who had been reverted in 1971.
Otherwise we do not think that it would be right to
interfere, at the instance of the petitioners, with these
respondents whose appointments as Head Masters had been made
in or before 1958.
We shall now turn to the two points referred to above
arising out of Writ Petitions No. 359/71 and 360/71. The
first point involves the question whether the selection by
interviews held by the Departmental Promotion Committee
between Mar. 15, 1971 and July 18, 1971. for the purposes of
making promotions to the posts of Head Masters and Tehsil
Education Officials was a valid and proper exercise. The
Department found more than 1100 teachers qualified for
promotion and they were all called for interviews. The
selection was to be made in accordance with the Jammu &
Kashmir Civil Services (Classification Control, and Appeals)
Rules, 1969 which, it appears, had replaced the old rules of
1956. It appears to us that, there is no distinction bet-
ween the two rules because even as under the 1956 rules the
posts of Head Masters had to be filled on the merit-cum-
seniority basis, under the 1969 rules also selections had to
be made on that basis only. From the beginning, it appears,
some of the senior teachers, mostly coming from the Kashmiri
Pandit class, did not have any faith in this system of
selection and actually more than 400 of them boycotted the
interview. Several allegations have been made that even
before and during the period when the interviews were going
on many in high authority were giving assurances to some of
the reverted teachers that whatever happens those who had
been reverted would get their posts back if only they
appeared for interviews. We are not concerned with these
allegations. It was also alleged that the selections were
stage managed with a view to maintain the old proportion of
communal representation. It was pointed out that when
previously the appointments were made on the communal basis,
178 posts had gone to Muslims and 134 to Jammu Hindus. Now
after selection, 177 posts go to Muslims and 134 to Hindus.
It is submitted on behalf of the petitioners that it could
not have been
246
a mere coincidence that the same number of Muslims and
Hindus could have been selected in any properly conducted
system of selection. It is contended on behalf of the State
that if only the Kashmiri Pandit teachers had taken part in
the interview, it was very likely that the results might
have been somewhat different. There is some substance in
that contention also and, therefore, we shall not go merely
by the coincidence that the same number of Muslims and Jamvi
Hindus had been selected.
There are, however, two important considerations which show
that the selections by interview were thoroughly unsatis-
factory. The candidates for selection included a large
number of senior teachers many of whom had officiated as
Head Masters over long periods. They were asked to appear
before a Committee consisting of 4 officials. One was a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 22
Member of the Public Service Commission, the second was the
Secretary of the Education Department, the third was the
nominee of the Chief Secretary and the fourth member was the
Director of Education. The Committee was also assisted by
an Educational expert from outside the State and this body
was expected to make the selection after interviewing the
candidates. Undoubtedly when appointments to higher posts
are made it may be perfectly legitimate to test the
candidates at a properly conducted interview. But it
appears to us that the interview cannot be made the sole
test in cases of this kind. The efficiency of a teacher and
his qualifications to be appointed as Head Master depend
upon several considerations. His character his teaching
experience, ability to manage his class, his popularity
with the, students and the high percentage of successful
students he is able to produce are all matters which must
be necessarily taken into consideration before a selection
is made. For this any Committee which desires to make a
selection after interview should insist that the character
roll and the service record of the teachers should be before
it. At the time of these interviews, however, the Committee
did not have before it either the, character rolls or
service records of the teachers nor any confidential reports
about them. They had to go merely by the result of the
interview. In his affidavit the Educational Secretary has
admitted that such confidential records were not made
available to the Committee and the reason given was as
follows :
"Necessary service records in respect of
confidential rolls or character rolls of all
the eligible candidates for the last few years
were not available. Moreover the number of
candidates was very large."
It is rather extraordinary that such a statement should be
made by a high official of the Government. It is difficult
to conceive
247
that confidential reports were not available. The statement
does not make it clear whether all the confidential reports
were not available or only a few of them or for what years.
The statement is so vague that it is difficult to accept it.
Whenever appointment& to gazetted posts are made and have to
be approved by the Public Service Commission, confidential
reports must be forwarded to the Commission, for otherwise
it is difficult to see how the Public Service Commission can
approve the appointments. It may happen that in a few cases
the confidential records may be lost or missing. But to
deprive the Committee of the benefit of these reports on the
ground that such reports of all the eligible candidates for
the last few years were not available would be ridiculous.
The very fact that some other reason was necessary to be
given, namely, that the number of candidates was very large
goes to show that the first reason given by the official was
considered by him as not altogether satisfactory. All the
available reports ought to have been produced before the
Committee and if any was lost or not available it was the
duty of the Department to call for confidential reports
afresh from authorities who had opportunities to observe the
character and work of the teachers concerned. All the
schools are Government schools and they must have been
inspected from time to time by the Education Officers or
Inspectors. Their reports could have been called to aid the
Committee in its deliberations. We consider that the
Committee was wrong in undertaking to make the selection on
the basis of mere interviews.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 22
It would appear from the affidavit filed on behalf of the
State that out of the total of 50 marks to be given to the
candidate, 20 marks were allotted for general knowledge, 20
marks for aptitude and 10 marks for personality. An
assessment of the merit of a teacher was to be made in a
short half hour or even less. The petitioners have
criticised the system of interviews in these words :
"Personality connotes traits in one’s
character and not merely physical appearance
or muscular strength. Their ability to
control the students and administer the work
of a school could not possibly be tested by a
viva voice test. For this purpose the service
record and personal files of the candidates
were the best criteria for assessing the
suitability and merit. Unfortunately for
reasons best known to them the authorities
never placed the service record and personal
files before the Departmental Promotion
Committee members. The rich experience gained
through his career in the service, teaching
and administrative quality, discipline,
punctuality, regularity, popularity ability to
carry on
248
with staff, qualities to tone up the schools
to create healthy tradition and create
interest among the students in extra
curricular activities which were the most
relevant aspects and would have been known to
the members of the interviewing committee from
the service and personal records of the
candidates."
There is considerable force in the above criticism.
The second consideration is the wholly inept way of making
selections Selection means that the man selected for
promotion must be of merit. Where promotion is by
seniority, merit takes the second place but when it is a
selection, merit takes the first place and it is implicit in
such selection that the man must not be just average. When
responsible posts are filled by selection, cases are known
where selections are not made because candidates of the
required merit were not available. It is, therefore,
customary for a Committee making the selection to fix a
standard below which they should not go. In fact it appears
from the affidavit filed by one of the Educational experts
who assisted the Committee that he had suggested "that an
optimum cutting score for selection should be at least 50%."
In other words, his advice was that those candidates who got
more than 50% marks alone should be considered. The
affidavit is of Dr. N. K. Dutt, Reader in Education, Central
Institute of Education, Delhi who was the very first expert
who sat with the Committee at the time of the selection.
Dr. Dutt says that his suggestion for optimum cutting score
of not less than 50% had been favourably received by the
Departmental Promotion Committee. He further says that
every member of the Committee and the advisor were each
required to. make his own assessment and give the marks out
of the maximum 50 marks fixed for a candidate. In a counter
affidavit filed on behalf of the State by the Education
Secretary the statements made by Dr. Dutt in his affidavit,
though referred to, are not controverted. But the actual
marking results show an entirely different story. The four
members of the Committee made their independent assessment
and an average was taken representing the marks received by
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 22
a candidate.. According to the affidavit filed on behalf of
the State instead of following the suggestion of the expert,
the Committee fixed 30% instead of 50% as the optimum
cutting score. 30% is generally considered to be less than
just pass marks, being less than one third of the maximum,
and it would be absured to make selections with such a
cutting score. The expert adviser had advised 50% as the
cutting score but the Committee adopted 30% as the cutting
score. The export advisor bad advised 50% as the cutting
score but the Committee adopted 30% as the cutting score.
The expert found that there were many candidates who could
not
249
score even 30% marks and so the Committee decided that even
candidates who got only 20% marks from the expert may be
considered. In this way those who got more than 30% marks
from the Committee and more than 20% marks from the expert
were declared eligible for selection. This is indeed a
travesty of selection. The Secretary has clearly stated in
his affidavit that in fixing the qualifying minimum
percentage to determine the suitability of the candidate,
the candidate need have obtained 30% marks and above from
the Committee and 20% and above from the expert. We consider
that a selection made on such a poor basis cannot be called
a real selection at all. For the reasons given above
therefore we think that the whole process of selection is
wrong and unsatisfactory and must be set aside.
We have now to turn to the second point involved in the case
namely, reservations in favour of backward classes. We are
not concerned in this case with reservations made in favour
of the Scheduled castes. According to the reservation rules
already referred to, 8% of the posts are reserved for
Scheduled Caste candidates and 42% in favour of backward
classes. According to the figures given by the State, 163
candidates were selected against unreserved vacancies and
136 candidates were selected against reserved vacancies in
favour of backward classes. This, however, did not mean
that a backward class candidate could not be selected to the
unreserved vacancies on merit. A backward class candidates
can come under the rules in the unreserved vacancies also
solely on merit. We are not concerned here whether such a
rule is proper when a large percentage of 42% is reserved
for the backward classes. We are, however, concerned with
the fundamental question as to whether the Rules by which
backward classes are determined for the purpose of Articles
15 (4) and 16(4) of the Constitution are violative of
those Articles.
Article 15(4) speaks about "socially and educationally
backward classes of citizens" while Article 16(4) speaks
only of "any backward class of citizens." However, it is now
settled that the expression "backward class of citizens" in
Article 16(4) means the same thing as the expression "any
socially and educationally backward class of citizens" in
Article 15(4). In order to qualify for being called a
’backward class citizen’ he must be a member of a socially
and educationally backward class. It is social and
educational backwardness of a Class which is material for
the purposes of both Article 15(4) and 16(4).
Many State Governments had found it difficult to determine
which class of citizens can be properly regarded as socially
and educationally backward. Several cases have come to this
Court and the decision of this Court in M. R. Balaji and
others v. State
250
of Mysore(1) is generally regarded as the locus classicus on
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 22
the subject. Several other decisions have been rendered
thereafter and the passage in a judgment delivered by Shah,
J (as he then was) in State of Andhra Pradesh & Anr. v. P.
Sagar(2) summarises the general principles at page 600. It
is as follows
"In the context in which it occurs the
expression "Class" means a homogeneous section
of the people grouped together because of
certain likenesses or common traits and who
are identifiable by some common attributes
such as status, rank, occupation, residence in
a locality, race, religion and the like. In
determining whether a particular section forms
a, class, caste cannot be excluded altogether.
But in the determination of a class a test
solely based upon the case or community cannot
also be accepted. By cl. (1), Art. 15
prohibits the State from discriminating
against any citizen on grounds only of
religion, race, caste, sex, place of birth or
any of them. By cl. (3) of Art. 15 the State
is, notwithstanding the provision contained in
cl. (1), permitted to make special provision
for women and children. By cl. (4) a special
provision for the advancement of any socially
and educationally backward classes of citizens
or for the Scheduled Castes and Scheduled
Tribes is outside the purview of clause (1).
But cl. (4) is an exception to cl. (1) Being
an exception, it cannot be extended so as in
effect to destroy the guarantee of el. (1).
The Parliament has by enacting cl. (4)
attempted to balance as against the right of
equality of citizens the special necessities
of the weaker sections of the people by
allowing a provision to be made for their
advancement. In order that effect may be
given to cl. (4), it must appear that the
beneficiaries of the Special provision are
classes which are backward socially and
educationally and they are other than the
Scheduled Castes and Scheduled Tribes, and
that the provision made is for their
advancement. Reservation may be adopted to
advance the interests of weaker sections of
society, but in doing so care must be taken to
see that deserving and qualified candidates
are not excluded from admission to higher edu-
cational institutions. The criterion for
determining the backwardness must not be based
solely on religion, race, caste, sex, or place
of birth, and the backwardness being social
and educational must be similar to the
backwardness from the Scheduled Castes and the
Scheduled Tribes suffer. These are the
principles
(1) [1963] Suppl. 1 S.C.R. 439.
(2) [1968] 3 S.C.R. 595.
251
.lm15
which have been enunciated in the decision of this court in
M. R. Balaji’s case-(1963) Suppl. 1 S.C.R. 439 and R.
Chitralekh and Another v. State of Mysore and others (1964)
S.C.R. 368."
It is not merely the educational backwardness or the social
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 22
backwardness which makes a class of citizens backward; the
class. identified as a class as above must be both
educationally and socially backward. In India social and
educational backwardness is. further associated with,
economic backwardness and it is observed in Balaji’s case
referred to above that backwardness, socially and.
educationally, is ultimately and primarily due to poverty.
But if, poverty is the exclusive test, a very large
proportion of the population in India would have to be
regarded as socially and educationally backward, and if
reservations are made only on the ground; of economic
considerations, an untenable situation may arise because
even in sectors which are recognised as socially and educa-
tionally advanced there are large pockets of poverty. In
this country except for a small percentage of the population
the people are, generally Poor-some being more poor, others
less poor. Therefore, when a social investigator tries to
identify socially and educationally backward classes, he may
do it with confidence that they are bound to be poor. His
chief concern is, therefore, to determine whether the class
or group is socially and educationally backward. Though the
two words ’socially’ and ’educationally’ are used
cumulatively for the purpose of describing the backward
class, one may find that if a class as a whole is
educationally advanced, it is generally also socially
advanced because, of the reformative effect of education on
that class. The words "advanced" and "backward" are Only
relative terms-there being several layers, or strata of’
classes, hovering between "advanced" and "backward", and the
difficult task is which class can be recognised out of these
several layers as being socially and educationally backward.
In the, report submitted by the Backward Classes Committee
to the State of Jammu & Kashmir it is stated that
agriculture is the main stay of the State’s economy. 90% of
the _population depends for its living on land. See :
Chapter IV para 38 of the Report. Therefore, the problem of
social backwardness in the State. as elsewhere, is the
problem of rural India. Nevertheless so much has been
accomplished during the past 25 years for the amelioration
of the conditions of the rural ’population that rural India
of a past generation has no relevance today. Facilities for
education which, were practically non-existent a generation
ago are now available at the villagers’ door-step. In a
former age it was only the fortunate few who got through
Secondary education because- of paucity of teaching
institutions. but now the rural areas am studed with
Secondary schools at comparatively easy distances. Except
in
252
wholly inacceable areas, even colleges are established not
far from the rural population. There is hence a growing
sector in the village population which firmly believes in
education as an instrument of social advancement and more
and more of them are receiving education in these
institutions. As a matter of fact, the concept of education
as a cardinal element in social equipment has so much
permeated these sectors that it is almost the measure of
social ,advance they have made recently. However, side by
side with these sectors there are still some sectors of the
population which show extreme apathy towards education due
to age-old customs ,and habits of living, fostered by
poverty, ignorance, superstition and prolonged social
suppression. The interests of these sectors must very
naturally be the prime concern of the State,. Indeed
all .sectors in the rural areas deserve encouragement but
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 22
whereas the ,former by their enthusiasm for education can
get on without special ,treatment, the latter require to be
goaded into the social stream by positive efforts by the
State. That accounts for the raison detre of the principle
explained in Balaji’s case which pointed out that backward
classes for whose improvement special provision was
contemplated by Article 15 (4) must be comparable to
Scheduled castes and Scheduled tribes who are standing
examples of backwardness socially and educationally. If
those examples are steadily kept before the mind the
difficulty in determining which other ,classes should be
ranked as backward classes will be considerably ,eased.
The failure to grasp this fundamental requirement has
distorted investigations of those who plumped for Special
reservations for ,communities which comprised both advanced
and backward groups. In R. Chitralekh & Anr. v. State of
Mysore & Ors, (1) Subba Rao, J (as he then was), speaking
for the majority, discarded caste as .the dominant criterion
in the following words at page 388 :
"It may be that for ascertaining whether a
particular citizen or a group of citizens
belong to a backward class or not, his or
their caste may have some relevance, but it
cannot be either the sole or the dominant
criterion for ascertaining the class to which
he or they belong.
This interpretation will carry out the
intention of ’the Constitution expressed in
the aforesaid Articles. It helps the really
backward classes instead of promoting the
interests of individuals or groups who, though
they belong to a particular caste a majority
whereof is socially and educationally
backward, really belong to a class which is
socially and educationally advanced. To
illustrate. take a caste in a State which is
numerically
(1) [1964] 6 S.C.R. 368.
253
the largest therein. It may be that though a
majority of the people in that caste are
socially and educationally backward, an
effective minority may be socially and
educationally far more advanced than another
small sub-caste the total number of which is
far less than the said minority. If we
interpret the, expression "classes" as
"castes", the object of the Constitution will
be frustrated and the people who do not
deserve any adventitious aid may get it to the
exclusion of those who really deserve. This
anomaly will not arise if, without equating
caste with class, caste is taken as only one
of the considerations to ascertain whether a
person belongs to a backward class or not. On
the other hand, if the entire sub-caste, by
and large, is backward, it may be included in
the Scheduled Castes by following the
appropriate procedure laid down by the
Constitution."
In identifying backward classes, therefore, one has to guard
oneself against including therein sections which are
socially and educationally advanced because the whole object
of reservation would otherwise be frustrated. In this
connection it must also be remembered that State resources
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 22
are not unlimited and, further, the protection given by
special reservation must be balanced against the
constitutional right of every citizen to demand equal
opportunity. Moreover, where appointments and promotions to
responsible public offices are made, greater circumspection
would be required in making reservations for the benefit of
any backward class because efficiency and public interest
must always remain paramount. It is implicit in the idea of
reservation that a less, meritorious person is to be
preferred to another who is more meritorious.
The Jammu & Kashmir Scheduled Castes and Backward Classes
Reservation Rules, 1970 are comprised 5 parts. Part I con-
tains 6 Chapters and rule 3 says that the permanent
residents of’ the State belonging to the categories of
persons in these six Chapters are declared as socially and
educationally backward classes of citizens. Chapter I
enumerates occupations which are regarded as traditional
occupations and rule 4 says that every person whose
traditional occupation is one of the 62 mentioned therein
must be regarded as a person belonging to the backward
class. Chapter 11 mentions 23 social castes, and persons
belonging to these social castes are regarded as backward.
Chapter ITT describes small cultivators as backward.
Chapter TV groups low paid pensioners as backward. Chapter
V puts residents in an area adjoining the ceasefire line in
the backward class. Chapter VT specifies some areas in the
State as "bad pockets" and every person belonging to that
area is to be regarded as belonging to the
254
backward class. We are not directly concerned with the
other parts of these rules. Objection is taken by Mr. Sen,
on behalf ,of the petitioners, to the several types of
backward classes designated under the rules and also to the
peculiar manner in which the ,definitions have been framed.
Chapter I gives the class designated by traditional occupa-
tions. In all about 62 occupations have been identified as
traditional. They follow closely the classes designated as
traditional occupational classes by the Committee in Chapter
XIV of its report. In para 124 the Committee has stated
that with a view to sorting out backward classes from others
the claim of each and every occupational and industrial
category listed in the census report of 1961 had been
carefully examined and it is obvious that the list of
traditional occupations is made as exhaustive as possible.
A class can be identified on the basis of traditional
occupation. A traditional occupation means an occupation
followed in .a family in which it is handed down by an
ancestor to his posterity. If there is a section of the
population following an occupation of that description that
section can be regarded as a class. Such occupations are
generally occupations in which some, special skills are
necessary like those of an artisan or a craftsman. It is
contended by Mr. Sen that though 62 occupations have been
mentioned as traditional occupations a good many of them are
not really traditional occupations and with regard to others
there has been no investigation in depth as to whether they
are traditional occupations or not. It is also contended by
him that the definition of ’traditional occupation given in
the rules actually distorts the whole picture because
whether the father of the person claiming reservation
follows the traditional occupation or not, he becomes
entitled to be considered as of the class if his grand-
father did.
There is no doubt that a large number of occupations men-
tioned in the fist is capable of being followed as a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 22
traditional occupation. But some of them, at least, do not
deserve to be called traditional occupations. Take for
example an "agricultural labourer". We have grave doubts if
agricultural labour can be regarded as a traditional
occupation. The occupation is seasonal and, as is well-
known, it is the last refuge of the landless unskilled
labourer who has no other source of employment in the rural
community. Indeed, if any one deserved special
consideration it is the agricultural labourer, but the
objection is to its identification as a traditional
occupation. An agricultural labourer is just a labourer
whose services are utilized wherever unskilled labour is
required. In fact he is the source material for hamals and
the like occupations which merely require physical strength
255
and capacity to work. Similarly it would be difficult to
say that the following occupations are traditional
occupations
(5) Bearer.. Boy, waiter.
(7) Book. binders.
(11) Cook.
(20) Grass seller. pedlars.
(23) Load carriers.
(29) Old garment sellers.
(48) Watch repairers.
(51) Grocers in rural areas.
(53) Milk-sellers in rural areas.
(58) Vegetable sellers in rural areas.
(62) Drivers of Tongas and other animal driven vehicles.
All these occupations do not require special skills
developed by tradition and can be resorted to by anybody
with the requisite resources. Then again at serial nos. 34
and 56 we have a category of priestly classes who, though
following a traditional profession can hardly be regarded as
socially and educationally backward. We, therefore,, think
that there must be a proper revision of the traditional
occupations to fall properly under rule 4.
But the most serious objection is to the artificial
definition given in rule 2(j). The "traditional occupation"
in respect of a person means the main occupation of his
living or late grandfather and does not include casual
occupation. This would mean that if a person wants the
special advantage as a member of the backward-class it is
enough for him to show that his grandfather was following a
traditional occupation. His father may not be following the
traditional occupation at all. He might have given it up to
follow some other occupation or trade. It is not enough, it
is contended, that a traditional occupation was followed by
the grandfather but that the occupation should have
descended to his son also so that at date when the grandson
is asking for the benefit of reservation the traditional
occupation must be still in the family and continues to be
the living of the family. There is great force in this
contention. If the father of the person who claims special
treatment under Articles 15(4) and 16(4) has given up his
low income occupation and become a trader or a Government
servant it will be wrong to give the person the special
benefit merely on the ground that his grandfather was
following a certain traditional occupation. It was against
such misuse
256
that the Committee had issued a warning in para 129 of its
report. It observed.
"While making the foregoing provisions, every possible care
should be taken by the State to ensure that the benefit of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 22
such provisions is availed of only by those who are bonafide
members of the classes declared backward and not by
imposters." As already stated it is quite open to the State
to declare that persons belonging to low income families
following a traditional occupation should be regarded as
persons belonging to a backward class if, on the whole, that
class is socially and educationally backward. But it is
equally essential that at the time when a person belonging
to that class claims the special treatment his family must
be still following the traditional occupation. Since the
rule does not completely ensure this it is likely to be
abused and the real person for whose benefit the rule is
made will not get the benefit. The rules, therefore,
pertaining to traditional occupations must be suitably
revised.
Chapter 11 deals with some 23 low social castes. The Com-
mittee in Chapter XIII had identified the first 19 out of
them and stated that these castes are considered inferior in
society as the service which they render carry a stigma in
it. They suffer from social disabilities and both
educationally and economically they are extremely backward.
The last four castes in rule 5 have not been mentioned in
Chapter XIII of the report. It is not also known on what
basis they have been included as socially and educationally
backward. There may be good reasons for the, State
Government to do so. but we have no material before us. As
at present addressed, therefore, we are not prepared to pro-
ceed on the basis that serial nos. 20 to 23 are backward
classes.
Chapter III identifies cultivators of land with small
holdings as a backward class. The limits of his holding
differ according to, the type of land cultivated and the
region in which such land is situated. The cultivator may
be an owner or a tenant. The may even be a non-cultivator
provided he wholly depends on land for his livelihood. The
cultivator is designated as a class on the basis of the
recommendations made by the Committee in Chapter XIII of its
report. The reasons given by the Committee go to show that
the overriding consideration was economic. A class, as
already observed, must be a homogeneous social section of
the people, with common traits and identifiable by some
common attributes. All that can be said about the
cultivators is that they are persons who cultivate land or
live on land, and the simple accident that they hold land
below a certain ceiling is supposed to make them a class.
In such a case the relevance of social and educational
backwardness takes a subordinate place. In some areas as in
Kashmir valley the ceiling for a cultivator is 10 Kanals
257
of irrigated land. If a cultivator holds 10 Kanals of land
or less he is to be regarded as backward i.e. to say
socially and educationally backward. But if his own brother
living in the same village owns half a Kanal more than the
ceiling he is not to be considered backward. This
completely distorts the picture. It will be very difficult
to say that if a person owns just 10 Kanals of land he
should be considered socially and educationally backward
while his brother owning half a Kanal more should not be so
considered. The error in such a case lies in placing
economic consideration above considerations which go to show
whether a particular class is socially and educationally
backward. The same error is repeated in Chapter IV wherein
the dependent of a pensioner is supposed to belong tot the
backward class if such pensioner had retired from certain
Govt. posts mentioned in Appendix and if the maximum of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 22
scale of pay of these posts did not exceed Rs. 100 p.m. They
also included defence service pensioners of the ranks of
sepoy, Naik Havaldars etc. This again is based upon the
recommendation of the Committee which in Chapter 11 of the
report says "Among others, representatives of pensioners
also called on the Committee and explained the difficulties
faced by them because of being in receipt of a mere income
in the, shape of pensionary emoluments. The memorialists
contended that they cannot keep pace with the ever-rising
price index as rates of pension have remained static and
have Pot been enhanced as is being done, from time to time
in the case of Government servants in regular service. It
was further argued that they could ill afford to spare any
part of their meager earnings for the: education of their
children." The Committee felt that these pensioners deserve
on there grounds to be shown consideration as backward
classes because most of them held class IV or similar posts.
Ex-servicemen who fall in this class ire about 90,000 and
civil posts pensioners are about 15,000. It is difficult to
say that those pensioners are a class in the sense that they
are a homogeneous group. They are an amorphous section of
Government servants who by the accident of receiving Rs.
100/- or less as pay at the time of retirement or being ex-
servicemen of certain grades are pushed into an artificially
created body. It may be that they belong to class IV or
similar grade service of the State. But that is not the
test of their social and educational backwardness. In days
when sources of employment were few, many people though
socially advanced might have accepted low paid jobs. Some
of them may have failed to make the educational grade and
were hence forced by necessity to accept such low paid jobs.
Some others might have prematurely retired from posts
carrying the scale referred to above. The accident,
therefore, that they belong to a section of Government
servants of certain category is no test of their social
backwardness. The test breaks down if the position of a
brother of such a pensioner is considered. If the brother,
-631Sup. CI/73
258
also a Government servant, has the misfortune of retiring
when holding a post the maximum of which was Rs. 105 he was
liable to be regarded as not socially and educationally
backward when, in all conscience, so far as the two brothers
are concerned they remain on the same social level. Another
brother who is privately employed and retires from service
without any pensionary benefits would not be entitled to be
classed as backward under the test. These anomalies arise
because of the artificial nature of the group created by the
Committee. If all the brothers are socially and
educationally backward, you will be differentiat in between
them by calling some more backward and others less backward,
a thing not permitted by Balaji’s case. There is, there-
fore; substance in the contention of Mr. Sen that the
Committee has created these two artificial groups of
"cultivators" and "pensioners" for the purpose of affording
certain benefits under the Constitution instead of
identifying socially and educationally backward classes.
Chapter V & VI of the Rules identify residents of certain
areas as backward. In Chapter V the residents of certain
villages mentioned in Appendix 11 are considered as
backward, these villages being within five miles of the
ceasefire line. In Chapter VI some areas in the State are
regarded as "bad pockets" and all the residents of those
areas are stated to be backward. These two Chapters
incorporate the recommendations made by the Committee in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 22
Chapter X and IX respectively of the report. Chapter IX
relates to "bad Dockets". 10 such bad pockets have been
identified by the Committee and cover 696 villages in
certain Districts and Tehsils far away in the interior. The
population of these areas according to 1961 census was about
three lakhs. The Committee reports as follows :
"There are, for instance well known rather
notorious backward areas which have to be
treated differently from the rest of the
State. There are others which because of
difficult terrain, inaccessibility and absence
of vehicular communications still retain their
primitive character. There are stilt some
others which suffer from deficient production
on account of soil being rocky and sandy and
irrigation facilities being scanty and
inadequate. Besides these, there are areas
where due to non-availability of electric
power, industrial development even on the
scale of cottage industry has yet to come into
existence. There are certain areas which
combine all or some of these characteristics."
Ten such pockets were then examined in detail and the
Committee came to the conclusion that owing to lack of
communication, inaccessibility, lack of material resources
and the like the re-
259
sidents of these areas are living in almost primitive
conditions and they are all socially and educationally
backward. The civilzing influence of modern life is yet to
reach them. These areas are carefully mapped. They are
situated in the recesses of inaccessible mountains which
have primarily led to the residents therein being almost in
a primitive state. The population is about 8% of the total
population of Jammu & Kashmir and, in our opinion, there is
no serious difficulty in regarding the residents of these
areas as being backward. Similar considerations apply to
areas adjoining the ceasefire line. They comprise about 179
villages with a population of about a lakh. The
difficulties of their situation near the ceasefire line for
the last 25 years seem to have contributed to this area
being cut off from the main stream of life. The Committee
noticed that the difficulties inherent in the living
conditions in these areas had inevitably lead the inhabi-
tants of these areas living in economic and educational
backwardness. There are restrictions on their free movement
and they, have to remain indoors after sun set. The mate
members cannot leave their villages in search of livelihood
elsewhere for fear of their wives and children being left
behind unprotected. The land is unproductive, no
investments could be made in the land be, cause of the
nearness of the ceasefire line. Raids accompanied by cattle
lifting and damage to property are not uncommon. Loss of
life also takes place occasionally. The inhabitants find it
equally difficult to pursue their traditional arts and
crafts. The effect of all these contributory factors have
kept these areas, in so far as social and educational
progress is concerned, very much behind the rest of the
State. We thus find that special reasons have been given by
the Committee why it considered these areas socially and
educationally backward and since the classification is not
made merely on the ground of place of birth, we do not think
that there is any serious objection to regard the residents
of the bad pockets and the ceasefire areas as socially and
educationally backward. But Rules 10 and 12 have been so
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 22
framed that the advantage is likely to be misused by
imposters. A person wanting the advantage of reservation
would be regarded as belonging to these area% if his father
is or has been resident of the area for a period of not less
than 10 years in a Period of 20 years preceding the year in
which the certificate of backwardness is obtained. The
rules do not insist that either the father or the son should
be a resident of the area when the advantage is claimed.
Nor does it require that the son should have his earlier
education in these areas to ensure that he and his father
are permanent residents of that area. Any trader or
Government servant from outside who is residing for about 10
years in these area,, within 20 years of the date when the
advantage is claimed would be entitled to be regarded as be-
longing to the backward class. In order that the benefit
may go to the residents of these areas. Government ought to
frame rules
260
with adequate safeguards that only genuine residents will
get the advantage of special reservation and not outsiders.
As the rules stand, outsiders who, in the course of their
trade or business happened to live in these areas for 10
years out of past 20 years would be able to claim the
benefit. This loophole must be plugged and till that is
done, the production of a certificate from the Tehsildar as
to the backwardness of any person would be of little value.
We have shown above the defects in the rules which purport
to identify certain residents of the State as backward.
Till the defects are cured, the rules are not capable of
being given effect to.
In view of the above findings the selections made by the
Departmental Promotion Committee have to be set aside.
It is very unfortunate that this controversy is going on
from 1965. The net result of it has been to deprive schools
of their Head Masters. There can be no doubt also that on
account of various changes effected during the past years,
considerable damage must have been done to overall
discipline in the schools. The rules of 1969 provide for
promotions to the posts of Head Masters and Tehsil Education
Officers by selection. Therefore, it is essential that
these selections must be made on a proper basis. That will
take some time. In the meantime the schools must have a
proper administrative set up and we, therefore, propose an
interim arrangement. Since’ the selections made on the
basis of the present backward class reservations rules are
illegal and it would take sometime before those rules are
properly revised the State may consider the suggestion
whether all the posts which are now vacant may not be filled
by selections under the rules of 1969 and appropriate
reservations in favour of backward classes be made for
future vacancies as they occur after the backward class
reservation rules are properly revised. Accordingly, the
following directions are given as a result of our findings
in the three petitions :
(1) All those Head Masters and Tehsil
Education Officers who have been confirmed as
such or promoted to yet higher posts with
effect from the date prior to the filing of
the Writ, Petition No. 107/1965 (Triloki Nath
Tikoo’s case) will not be affected by the
orders passed in these cases;
(2) The cases of all other teachers
including those who were officiating as Head
Masters and Tehsil Education Officers and are
eligible for promotion shall be reviewed in a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 22
proper selection made in accordance with the
1969 rules. Interviews shall not be the
261
only test. The character rolls and the
confidential records shall be taken into due
consideration. If in any case the same are
not available, a report or reports should be
obtained from authorities who had opportunity
to observe the teachers’ performance and
character.
(3) Pending selection as per (2) above, the
following interim arrangement for filling the
vacant posts of Head Masters and Tehsil
Education Officers is directed :
(a) Those Head Masters and Tehsil Education
Officers who were officiating as such since
prior to the filing of Writ Petition No.
107/65 (Triloki Nath Tikoo’s case) and whose
appointments had not been set aside as invalid
in that Writ Petition or Writ Petition No.
108/69 (Makhanlal’s case) will be restored to
the position they held before the filing of
Writ Petition No. 107/65;
(b) The remaining vacant posts of Head
Masters and Tehsil Education Officers will
be filled by those selected in 1971
interviews, provided that each one of those
selected had obtained at least 50% marks from
the Departmental Promotion Committee and 50%
marks from the Expert. As between them,
seniority will be respected.
(c) If in spite of following (b) above, all
the vacancies are not filled the remaining
vacancies shall be filled by teachers in order
of their seniority.
The petitioners in the three petitions shall get their costs
from respondent no. 1 (i,e. State) in one set of hearing
fees.
G.C. Petitions allowed.
262