Full Judgment Text
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PETITIONER:
MAKHANLAL WAZA & ORS.
Vs.
RESPONDENT:
STATE OF JAMMU & KASHMIR & ORS.
DATE OF JUDGMENT23/02/1971
BENCH:
GROVER, A.N.
BENCH:
GROVER, A.N.
SIKRI, S.M. (CJ)
MITTER, G.K.
HEGDE, K.S.
REDDY, P. JAGANMOHAN
CITATION:
1971 AIR 2206 1971 SCR (3) 832
1971 SCC (1) 749
ACT:
Constitution of India, 1950, Art,. 16-Jammu & Kashmir Civil
Service (Classification Control & Appeals). Rules 1956, r.
25-Promotion of Teachers to the Gazetted cadre on the basis
of "communal policy"Communal policy struck down by courts as
unconstitutional-Thereafter Government reverting teachers to
non-gazetted grade but giving same emoluments as in gazetted
grade under different nomenclature-Also promoting those not
parties before the court to gazetted grade on the basis of
communal policy-Promotions violative of Art. 16-Judgment-Law
declared by court binding on State Government with respect
to those not parties before Court.
HEADNOTE:
Teachers and other officers of the Education Department of
the State of Jammu & Kashmir were governed by the Jammu and
Kashmir Civil Services (Classification, Control & Appeals)
Rules, 1956. According to r. 25 promotions to a service or
class or to a selection category or to a grade in such
service or class were to be made on grounds of merit and
ability. Rule 19 provided for reservations to be made in
favour of any backward class which in the opinion of the
Government was not adequately represented in the services.
This rule was abrogated in 1958. But in promoting teachers
to the gazetted cadre respondents 1 and 2 adopted the
following basis (i) 50% of the ’Vacancies were filled from
among the Muslims of the entire State; (ii) 40% out of the
remaining 50% were filled by Jamvi Hindus of the province of
Jammu and (iii) the remaining 10% were given to others
including Kashmiri Pandits. This was purpohed to be done on
the ground that the Muslims of the entire state and the
Hindus of Jammu Province constituted "backward class". In
December 1965, the present petitioners 2 and 4 filed a writ
petition in this Court, and in Triloki Nath & Anr. v. State
of Jammu & Kashmir, [1969] 1 S.C.R. 103, this Court held
that in effect the basis of promotion was not of reservation
of some posts; it was a scheme of distribution of all the
posts community-wise and such distribution was contrary to
the constitutional guarantee under Art. 16(1) & (2) and was
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not saved by cl. (4). The promotions granted to respondents
3 to 83 in that petition were declared void, but it was left
open to the State to devise a scheme consistent with the
constitutional guarantee for reservation of appointments to
posts or promotions in favour of any backward class of
citizens. No such scheme was devised. Instead those
teachers who were respondents in the previous writ petition
and whose promotions became illegal were ordered to be
adjusted in a non-gazetted cadre. They were "allowed to
work against the posts they were holding prior to the
reversion’ on temporary basis. A new nomenclature was
evolved for the post of ’Head Masters’; they ’were called
’Teachers-in-charge’. They were to get the same salary
which they were getting when they were in the gazetted
cadre. Ordinarily such a teacher could not have been
appointed to that post being far junior to the petitioners
according to the seniority list of the non-gazetted cadre to
which he and the petitioners belonged. Again, the other
respondentteachers who did not figure in the earlier writ
petition were all promoted
833
to the gazetted cadre prior and subsequent to the decision
in Triloki nath case on the basis of the comnmnal policy.
The present petition was filed challenging the promotion of
all the respondent-teachers as illegal and unconstitutional.
Allowing the petition,
HELD : (i) Respondents 38 to 107 who were parties to the
previous petition, were reverted to the non-gazetted grade
but they were still retained in the posts which they were
holding when they had been promoted in gazetted grade
although in some cases the nomenclature was changed from
’Headmaster’ to ’teacher-in-charge . In the absence of any
rules lawfully promulgated for employment of backward
classes promotions could be made only in accordance with r.
25 and there was absolute non-compliance with the provisions
of that rule. [839 C]
(ii)The promotions of the respondents who were not parties
to the previous petition were based not purely on merit but
were made on account of the communal policy which had been
struck down by this Court as unconstitutional. The judgment
which was delivered did not merely declare the promotions
granted to the respondents in the writ petition filed at the
previous stage as unconstitutional, but also laid down in
clear and unequivocal terms that the distribution of
appointments, posts or promotions made in implementation of
the communal policy was contrary to the constitutional
guarantee of Art. 16. The law declared by this Court was
binding on the respondent, State and its officers and they
were bound to follow it whether a majority of the present
respondents were parties or not to the previous petition.
[839 B; 837 H]
(iii)Therefore, the promotions made of all the
respondent teachers were illegal and unconstitutional being
violative of Art. 16 of the Constitution.
Triloki Nath & Anr. v. State of Jammu & Kashmir & Ors.,
[1969] 1 S.C.R. 103, M. R. Balaji & ’Ors. v. State of
Mysore, [1963] Supp. 1S.C.R. 439 and Triloki Nath Tiku v.
State of Jammu & Kashmir & Ors., [1967] 2 S.C.R. 265.
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 108 of 1969.
Petition under Art. 32 of the Constitution of India for the
enforcement of fundamental rights.
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A. K. Sen and Naunit Lal, for the petitioners.
C. K. Daphtary, N. S. Bindra and R. N. Sachthey, for
respondents Nos. 1 and 2.
0.C. Mathur and P. N. Tiwari, for respondents Nos. 7 to
9, 12, 13, 19 to 21,27 to 29, 33, 34, 41, 47, 49, 57 to 59,
63, 64, 67, 68, 70, 110 to 113, 115, 117, 118, 121 to 124,
128, 130, l23, 134, 136, 142, 145, 146, 157, 164, 174, 182,
186, 198, 219, 232 to 236, 240, 245 to 250.
The Judgment of the Court was delivered by
Grover, J.-This petition under Article 32 of the
Constitution illustrates how an attempt has been made to
circumvent
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the law declared by this Court in Triloki Nath & Another v.
State of Jammu & Kashmir & Others(1) by which the St-ate
policy of reserving 50% of the vacancies among the teachers
in the employment of the respondent State for the Muslims of
Kashmir and out of the remaining 50%, 40% for the Jamvi
Hindus and 10% for others including Kashmiri Pandits was
struck down as contrary to the constitutional guarantee
under Art. 16.
The petitioners, who are, 10 in number, are in the service
of the Education Department of the State of Jammu & Kashmir.
According to the petition, petitioner No. 1 joined service
in 1952 as a teacher in the Government High School, Poonch.
He had passed the Bachelor of Teaching Examination and was
given the grade of Rs. 80-8-200. This grade, which was of a
non-gazetted post was later revised sometimes before 1964 to
Rs. 150-500. The gazetted post carried a grade of Rs. 300-
600, Petitioner No. 2 entered service of the erstwhile State
of Jammu & Kashmir in 1943 as teacher in the Government
School, Tregham. He later on passed the examinations of
Bachelor of Teaching and the Master of Arts and was selected
in July 1968 for teaching in the Higher Secondary School.
Petitioners 3 to 10 were trained graduates holding degrees
of Bachelor of Education. Petitioners 3,4,6,7,9, and 10 had
also passed the Master of Arts examination and with the
exception of petitioner No. 10 were selected for teaching
in Higher Secondary Schools in July 1968.
All the teachers and other officers of the Education Depart-
ment of the State were governed by the Jammu & Kashmir Civil
Services (Classification, Control and Appeals) Rule& 1956
which were promulgated on June 14, 1956. Rule 9 relates to
first. appointment to a service or class. According to rule
19 in making the appointment to a service or class
reservation may be made in favour of any backward class
which, in the opinion of the Government, is not adequately
represented in the services. Rule 24 dealt with seniority.
Rule 25 to the extent it is material reads
"Promotions : (1) All promotions shall be made
by the appointing authority.
(2)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 test that Government may prescribe in this
behalf, seniority being considered only where
the merit and ability are approximately equal.
(1) [1969] 1 S.C.R. 103.
8 3 5
(3)All other promotions shall be made in
accordance with seniority and subject to any
test or special qualifications prescribed by
Government unless-
(a) the promotion of a member has been with-
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held as a penalty; or
(b) a member is given special promotion for
conspicuous merit and ability."
Articles 14 and 16 of the Constitution were made applicable
to the, State of Jammu & Kashmir in 1954. Rule 19 is stated
to have been abrogated in the year 1958. But in giving pro-
motions to the teachers in the gazetted cadre respondents 1
and 2 adopted the following basis, which will be called the
communal policy hereafter :-
(1) 50% of the vacancies were filled from
among the Muslims of the entire State;
(2) 40% out of the remaining 50% vacancies
were filled by Jamvi Hindus (Hindus from the
Jammu Province of the State majority of whom
are Dogras) and;
(3) the remaining 10% of the posts were
given to others including Kashmiri Pandits.
This was purported to be done on the ground that Muslims of
the entire State and the Hindus of Jammu Province
constituted "backward classes" for the purpose of
employment.
In December 1965 Triloki Nath and Shambu Nath the present
petitioners 2 and 4 filed a writ petition in this Court. In
all 81 respondents were impleaded which included the present
respondents Nos. 38 to 107. In that: petition it was
alleged that the communal policy of promoting teachers to
the gazetted cadre was not disclosed in any order made by
the State but had been arrived at on the footing of the
recruitment by promotion made to the gazetted post of
teachers from time to time. The promotions had been made on
the basis of merit and seniority but purely on the ground of
religion, caste and place of birth. This Court called for a
report from the High Court on the question whether the
Muslims of the entire State of Jammu & Kashmir and the
Hindus of the Jammu Province constituted backward class in
the sense explained in M. R. Balaji & Ors. v. The State of
Mysore(1) and also whether they were not adequatly re-
presented in the services of the State. (See Triloki Nath
Tiku & Anr. v. State of Jammu & Kashmir & Ors. (2 ) After
the report was received it was found that the High Court did
not record its
(1) [1963] Suppi. I S.C.R. 439.
(2) [1967] 2 S.C.R.265.
836
opinion on the evidence. But this Court proceeded to give
its decision on the material before it. This is what was
observed at page 105 (1969) 1 S.C.R. 1031 by Shah, J.
"Article 16 in the first instance by- cl.(2)
prohibits discrimination on the ground, inter
alia, of religion, race, caste, place of birth
residence and permits and exception to be made
in the matter of reservation in favour of
backward classes of citizens. The expression
ward class" is not used as synonymous with "b
caste" or "back-ward community". The members
of an entire caste or community may in the
social, economic and educational scale of
values at a given time be backward and may on
that account be treated as a back ward class
but that is not because they are members of a
caste or community, but because they form a
class. In its ordinary connotation the
expression "class " means a homogeneous
section of the people grouped together because
of certain likeness or common traits, and who
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are identifiable by some common attributes
such as status, rank, occupation, residence in
a locality, race, religion and the like. But
for the purpose of Art. 16(4) in determining
whether a section forms a class, a test solely
based on caste, comunity, race, religion, sex,
descent place of birth or residence cannot be
adopted because it would directly offend the
Constitution."
It was pointed out that no formal order making a provision
for reservation of appointment to posts in favour of any
backward class of citizens had been produced There were a
number of government orders by which the promotions had been
made according to the communal policy. There was no
reference in any of the orders to selection of officers on
the basis that they belonged to backward classes. It was
held that in effect the communal policy was not of
reservation of some posts; it was a a scheme of distribution
of all the posts community-wise. Such distribution made in
implementation of the so called policy was contrary to the
constitutional guarantee under Art. 16(1) and (2) and was
not saved by clause (4). The promotions granted to
respondents 3 to 83 in that petition were declared void, It
was left open to the State to devise a scheme consistent
with the constitutional guarantee for reservation of
appointments to posts Or Promotions in favour of any
backward class of citizens which, in the opinion of the
State, was not adequately represented in the services.
It is common ground that no such scheme as was envisaged was
devised. It has, however, been stated in the present return
83 7
that certain rules have been promulgated by a notification
NoS.R.O. 460 dated August 19, 1969. In the meantime the
officers concerned of the Education Department of the State
thought of an ingenious device of giving ostensible effect
to the decision of this Court. Those teachers who were
respondents in the previous writ petition and whose protions
became illegal in view of the pronouncement of this Court
were ordered to be adjusted in non-gazetted cadre of which
the grade was Rs. 150-500. They were "allowed to work
against the posts they were holding prior to their
reversion" on temporary basis. Numerous copies of the
orders which have been annexed to the petition show that
this was the common pattern that was followed. A new
nomenclature, was evolved for the post of Head Masters.
They were called Teachersin-charge. They were to get the
same salary which they were getting when they were in the
gazetted cadre of Rs. 300-600. For instance, if A was
working as Head Master in the gazetted post and was drawing
a salary of Rs. 300/- per month according to. the scale of
Rs. 360-600 he was stated to have been adjusted in his own
grade and on his own pay i.e.,, in the grade of Rs. 150-500.
He was still to get a salary of Rs. 350/- which he would’
not have got if he had originally not been promoted to the
gazetted cadre. In other words although such a teacher was
brought into the non-gazetted cadre from the gazetted grade
his emoluments and his posting as Head of an institution
were not affected. It is not disputed’ that ordinarily he
could not have been appointed to that post being far junior
to the petitioners according to the seniority list of the
non-gazetted cadre to which, originally he and the
petitioners belonged. It has been stated somewhat tamely in
the return of respondents 1 and 2 that when, these teachers
who were affected by the decision of this Court had been
promoted to the gazetted cadre not only seniority but merit
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had also been taken into consideration. But it has not been
denied and this fact has been admitted before us in the
course of arguments that but for the so called communal
policy these teachers would not have been,-promoted to the
gazetted cadre eventhough merit and other factors had
entered into their promotion inter-se. As regards the other
respondent teachers who did not figure in the earlier
petition, they were all promoted to the gazetted cadre prior
and subsequent to the previous decision in complete defiance
of the law laid down by this, Court. Such a course has been
sought to be justified on the tenuous ground that they were
not parties to the previous petition and therefore their
case.-. would not be governed, by the decision given in that
petition. It may be observed immediately that such a
position is wholly untenable and misconceived. The judgment
which was delivered did not merely declare the promotions
granted to the respondents in the petition filed at the
previous stage as unconstitutional but also laid down in
clear and, unequivocal terms that the distribution
838
of appointments, posts or promotions made in implementation
of the communal policy was contrary to the constitutional
guarantee of Article 16. The law so declared by this Court
was binding on the respondent State and its officers and
they were bound to follow it whether a majority of the
present respondents were parties or not to the previous
petition.
In para 20 of the petition instances have been given which
show that in spite of the judgment of this Court certain
teachers who had been promoted to the post of Head Masters
are still Head Masters though they are very much below
Kashmiri Pandit teachers in the list of seniority. For
instance, Mohd. Yusuf Masoodi who was- respondent No. 52 in
the previous writ petition had been promoted to the post of
Had Master, Nowhatta. Even ,after the judgment he was
continuing as Head Master although ,he was placed at No. 243
in the seniority list of 1961. Messrs. Deva Kaul and
Dwarika Nath were 68 and 76 respectively in that seniority
list were working as _teachers under him in the same school,
Masoodi was drawing a salary above Rs. 350/per month whereas
the two Kashmiri Pandit teachers were drawing ,only Rs.
300/- though both of them were senior to him and were not in
the same grade of Rs. 150-500 to which Masoodi is stated to
have been reverted. Similarly those teachers who were given
promotions after the appointments on communal basis had been
struck down had been promoted following the same rule. In
para 22 an instance is given of Ghulam Mohiuddin Wani who
had been promoted as Teacher-in-Charge High School
Shogapor,. It is stated that his name did not appear in the
seniority list whereas Triloki Nath Kaul was much senior to
him but was working as a teacher under him although the
salary which Kaul was getting was Rs. 250/- per month and
the salary which Wani was drawing was only Rs. 210/- per
month. In the return respondents 1 and 2 have not
contradicted the facts stated in para 20 of the petition but
have taken certain pleas of general nature and of legal
character. Similarly with regard to para 22 it has been
stated inter alia in the return
"As regards the individual cases referred to
in para 22 of the writ petition the averments
and submissions made therein are misconceived
and unwarranted and misleading".
Our attention has, however, not been invited to any facts or
particulars relating to the aforesaid instances in the
return which would throw doubt on the correctness of the
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instances given in the petition in paras 20 and 22.
According to the petitioners the present respondents 3 to 27
were not parties to the previous proceedings but they were
pro-
8 39
moted to the gazetted grade in an officiating capacity
though they were junior to petitioner No. 1. Respondents 38
to 107 were parties to the previous petition and their
promotions were expressly quashed by this Court.
Respondents 108 to 218 were promoted during the pendency of
the writ petition and respondents 219 to 251 were promoted
after the decision of this Court in an officiating capacity.
It is abundantly clear and this position has not been
controverted that all the promotions which were made of the
respondents who were not parties to the previous petition
were based not purely on merit but were made on account of
the communual policy which had been struck down by this
Court as unconstitutional. Respondents 38 to 107 who were
parties to the previous petition were reverted to the non-
gazetted grade but they were still retained in the posts
which they were holding when they had been promoted to the
gazetted grade although in some cases the nomenclature Was
changed from Head Master to Teacher-in-Charge. In the
absence of any rules 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 absolute non-compliance with the provisions of that
rule. The promotions thus =de 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 law. The new rules
stated to have been framed have not been shown to us and we
wish to express no opinion on their applicability.
The present petition shall stand allowed in the manner indi-
cated above. The petitioners shall be entitled to their
costs in this Court.
K.B.N. Petition allowed.
840