TRILOKI NATH TIKU & ANR. versus STATE OF JAMMU & KASHMIR & ORS.

TRILOKI NATH TIKU & ANR.

STATE OF JAMMU & KASHMIR & ORS.

December I 5, I 966

[K. St:BBA RAO, C.J., J.C. SHAH, S. M. SiKRI, V. RA~JASWAMI AND C. A. VAIDIALINGAM, JJ.}

Co11stitutio11 of btdia, Ar•. 16(4)-Resen•ation in favour of backward classes-Require111·:?nts of Article-BackH'<ird class, what is.

The petitioners were school teachers in the service of the State of Jammu & Kashmir. Persons below them in the seniority list were promot-ed to the higher grade because the State Govemment in making the pr<>' 1110tions gave 50% of the higher posts to Muslims, 60% of the remain-ing 50% to Jammu Hindus and the rest to Kashmiri Pandits and Sikhs. This method of reservation was justified under Art. 16 of the Constitution on the ground that Muslims all over the State and Hindus in Jammu were ~ckward communities. The petitioners were Kashmiri Pandi1>1. They came to this Court under Art. 32.

HELD : The predominant concept underlying Art. 16 is equality of opportunity in the matter of employment; and without detriment to that concept, the State is enabled to make reservations in i'avoJr of backward classes to give p·ractical content to the concept of equality, It is impli-cit in the article that the doctrine of equality of opportunity shall be reconciled with that of reservation in favour of backward classes in such way that the latter while serving the cause of backward classes shall not U'.'reasonably encroach upon. the field of equality. [268 G-H]

The power under cl. 4 of Art. 16 can only be exercised in favour of backward classes of citizens. While the State has necessarily to ascertain whether particular class of citizens arc backward or not, having regard to acceptable crit·z.ria, its is not the finJl word on the question, it is justiciable issue. The power under cl. ( 4) is also conditioned by the fact that in regard to any backward classes of citizens thrre is no ade-quate representation in the services of the State. [269 A-Bl

class cannot be accepted as backward merely because it is not adequately represented in the services under the State. Such contention if accepted would exclude the really backward cla>Ses from the benefit of the provisior~ and confer the benefit only on class of citiz~ilS \vho, though rich and cultured have taken to other avocation in life [270 B-C]

[On the material before it the Court found it impossible to say whether the Muslims of the entire State of Jammu and Kashmir and the Hindllll of Jammu Province were backward communities within the meaning of Art. 16. The High Court wa.• therefore asked to Mllect the relevant material and to sent report.] [270 E-G]

M. R. Ba/aji v. State of Mysore, [1963] Supp. 1 S.C.R. 439 and

R. Clutra/ekha v. State of Mysore, [1964] 6 S.C.R. 368, referred to.

ORIGINAL JURISDICTION : Writ Petition No. 107 of 1965.

Writ Petition under Art. 32 of the Constitution of India for enforcement of fundamental rights.

Naunit Lai and Vineet Kumar for the petitioner~.

S. V. Gupte, Solicitur-Ge11cral of India, I«ija Jasll'alll Si11glt, Adl'orate-Ge11cra/ for the State c!f' /011111111 a11d Ka.</imir. and R. H. Dhehar, for respondents Nos. I and 2.

The Judgment of the Court was delivered by

Subba Rao. C.J. This petition under Art. 32 of the Constitution ,,f India has been filed by two teachers for the issue of an appro-rriate writ to quash the or<lers of promotion of respondents 3 to 83 and to direct the State of Jammu & Kashmir, the Jst res-pondent, and the Director of Education, Jammu & Kashmir State, Srinagar, the 2nd respondent, to promote them to the cadre of gazetted teachers \vith retrospective effect.

The facts arc simple. The 1st petitioner entered government senice of the erstwhile State of Jammu & Kashmir on May 16, 1943, as teacher in the Government S.:hool, Trehgam. He is an M.A., B.T .. and is at present working as teacher in the Gover~ ment Higher Secondary School, Sopore. The 2nd petitioner was likewise appointed as teacher on February 26, 1952, in the Govern-ment Middle School, Nigam, Kashmir. He is rl.A., B.T., and is at present working as teacher in the Government High School. Batamallo. In the year 1957, the !st respondent prepared seniority list of teachers of grade Rs. 80-8-200. From time to time the !st respondent prepared the seniority lists of teachers of the said grade and the last of them was prepared in 1961. Therein rhe 1st petitioner was given the serial No. 104, and the 2nd peti-tioner was given the seria' No. 140. Whenever there were vacancies in the higher grade of Rs. 250-25-350-EB-30-500, which is gazetted cadre, they were filled by promotion of teachers in the lower grade comprised in the said seniority list. It is alleged that in promoting teachers to the gazetted cadre, respondents I and 2 adopted the folio\\ ing basis :

(I) 50 % of the gazetted posts to be filled by pro-motion arc given to Muslims;

(2) about 60% of the remaining 50~~ of the posts are filled by Jamvi Hindus (Hindus from Jammu Pro-vincc of the State, majority of whom arc 9ogras); and

(3) the remaining 40% of the 50% of the posts are g. en to Kashmiri Pandits; some time c:·;c or two posts a1 ~ivcn to Sikhs o~t of turn.

To state it differently, out of every 100 gazetted posts, 50 went IO Muslims of the entire State of Jammu. & Kashmir, 30 went to Hindus from the Province of Jammu, and the remaining 20 went

to Kashmiri Pandits, out of which one or two went to Sikhs .. The said basis is not disclosed in any order made by the State, but is arrived at on the footing of recruitments by promotion made to the gazetted posts of teachers from time to time. It is also averred· that promotion> are made not on the basis of merit and seniority. hut purely on the ground of religion, caste and plase of birth. It is further alleged that though the two petitioners are seniors as per the aforesaid seniority list, they have been superseded by res-pondents 3 to 83 only on the ground that the petitioners happen to be Kashmiri Pandits and respondents 3 to 83 are either Muslims or Jammu Hindus.

In the counter-affidavit the State does not deny the fact that promotions to gazetted pmts are made in the manner indicated by the petitioners but says that 50 % of the posts were filled by Muslims of the entire State of Jammu & Kashmir and 40% of them were filled by Jammu citizens. It proceeds to support this reservation cm the ground that Muslims of the entire State and the Hindus of J 1mmu Province constituted "backward classes"' for the purpose of employment and that it is done in order to reduce gradually the imbalance between the backward classes and the progressive ones.It may be noticed at the outset that though the factual basis for the promotions to the gazetted posts is admitted. no order made by the Government is placed before us either specifying the back-E ward classes or the criteria for backwardness or fixing proportion between backward classes and others in the matter of promotion. There is also no acceptable material from which we can gather the relevant facts, namely, the latest census figures disclosing the stre11~t':i of the populati.on in the Provinces of Jammu and Kashmir, the p.Jpulation figures of the various religious groups, the break-up figures of the different communities of the two major religious groups, the state of their backwardness-social. economic and cultural-the criteria adopted by the State for ascertaining the hackwardnes; of different groups and other relevant material. Wb.at is placed before us is general assertion, unsupported by any zcceptable data, that all the Muslims of both the Provinces of the State are backward and the majority of the Hindus of the Jammu Pr0vince are likewise backward. During the course of the argu-ment, two statements showing the population figures community-wise (1961 census) and the population figures community-wise (1941 census) with literacy figures and their percentage are placed before us. Apart from the fact that the petition~rs have no opp.or-· !unity to test the correctness of the figurfs, the 1941 census figures may not afford any workable guide, as quarter of century has passed by since then and there must have been revolutionary changes during this period.

The Jaw on the subject is well settled. The relevant provision ·of the Constitution is Art. 16, which reads :

(I) There shall be equality of opportunity for all citizens in matters relating to employment or appoint-ment to any of!lce under rhe State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them be ineligible for, or discriminated against in respect

of, any employment or office under the State.

(3) Nothing in this article shall prevent Parliament

from making any law prescribing, in regard to class or classes of employment o~ appointment to an office under the Government of, or any local or other authority within, State or Union territory, any requirement as to residence within that State or Union territory prior to such employ-ment or appointment.

(4) Nothing in this article shall prevent the State

from making any provision for the reservation of appoint-ments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately re-presented in the services under the State.

·Clauses (I) and (2) of Art. 16 guarantee equality of opportunity to all citizens in matters relating to employment or appointment to any office under the State. But if the said clauses of the article are literally enforced, instead of giving equality of opportunity to all citizens, it will lead to glaring inequalities. In c0t•ni•Y where there arc different strata of society ranging from highly sophisticated to lowly backward, the concept of equality will drive the latter to the wall. Their condition would become worse than what it is. So, in order to give real opportunity to them to compete with the better placed people, els. (3) and (4) arc introduced in the article. While clause (2) prohibits the place of birth or residence as the sole criterion in the matter of employment, clause (3) permits residential qualification in the State or Union territory. While clauses (I) and (2) guarantee equal opportunity to all citizens, clause (4) enables the State to make provision for reservation of appointments or posts in favour of any backward classes of citi-zens. The predominant concept underlying the provision is equality of opportunity in the matter of employment; and, without detriment .to the said concept, the State is enabled to make reservations in favour of backwardcd classes to give practical content to the .concept of equality. It is implicit in the article that the doctrine of equality of opportunity shall be reconciled with that of reserva-.tion in favour of backward classes in such way that the latter ·while serving the cause of backward classes shall not unreasonably

encroach upon the field of equality. It is also clear from the pro-visions that the power conferred upon the State under clause ( 4} can only be exercised in favour of backward classes of citizens; that is to say, whether particular class of citize~s are backward is an objective factor to be determined by the State. While the State has necessarily to ascertain whether particular class of citizens are backward or not, having regard to acceptable criteria, it is not the final word on the question; it is justiciable issue. While ordinarily court may accept the decision of the State in that regard, it is open to be canvassed if that decision is based on irrelevant considerations. The power under clause ( 4) is also conditioned by the fact that irt regard to any backward classes of citizens there is no adequate representation in the services under the State. The opinion of the State in this regard may ordinarily be accepted as final, except when it is established that there is an abuse of power. fair reading of Art. 16, therefore, discloses the following in-gredients for the applicability of the provision : (i) there shall be equality of opportunity for all citizens in the matter of employ-ment; (ii) there can be reservations of appointments or posts in favour of backward classes; and (iii) the backward classes are not adequately represented in the services under the State.

Decided cases have laid down certain tests for ascertaining whether particular class is backward class or not. Though the decision in M. R. Balaji v. State of Mysore(I) turned upon Art. 15(4) of the Constitution, the principles laid down therein will equally apply to the facts of the present case. There this Court held. that backwardness under Art. 15(4) must be social and political and that social backwardness was in the ultimate analysis the result of poverty to very large extent. In the context of admission to educational institutions this Court held that speaking generally in broad way the provision for reservation should be less than 50 % and that actual percentage should depend upon the prevailing circumstances in each case.The decision in R. Chitralekha v. State of Mysore(2) also turned upon '.he interpretation of Art. 15(4) of the Constitution. In that case the Government of Mysore laid down that classifica-tion of socially and educationally backward classes should be made on the following basis : (i) economic conditions, and (ii) occupation. But the order of the Government did not take into consideration the caste of the applicant as one of the criteria for backwardness. This Court pointed out that, though the caste of group of citi-zens might be relevant circumstance in ascertaining their social backwardness, it could not be the sole or the dominant test in that behalf. This Court accepted the criteria adopted by the Mysore Government for ascertaining the backw~.rdness of cl~ss. The (I) {1963} Supp. I s.c.R .. Supp. I s.c.R .. s.c.R .. .. 439. (2) (1964] 6 S.C.R. 368.

(I) {1963} Supp. I s.c.R .. Supp. I s.c.R .. s.c.R .. .. 439.

argument advanced on behalf of the State. namely, that the differ cnce in the phraseolog} used in Art. 15(4) and Art. 16(4). namely socially and educationally backward classes in the former and backll'ard classes in the latter, leads to the inevitable conclusion that "backward classes" of citizens in Art. 16(4) are only such classes of citizens "ho arc not adequately represented in the services of the State docs not appeal to us. The sole test of backwardness under Art. 16(4 ), the argument proceeds, is the inadequacy of representation in the services under the State; that is to say, how-ever advanced p~rticular class of citizens, socially and educa-tionally, may be, if that class is not adequately represented in the ·scrl'ices under the State, it is backward class. This contention. if accepted. would exclude the really backward classes fron, the benefit of the provision and confer the benefit only on class of citizens who, though rich and cultured,'havc taken to other avoca-tions of life. It is, therefore, necessary to satisfy two conditions to attract clause (4) of Art. 16, namclv, (i) clnss of citizens is backward, i.e., socially and education:1lly, in the sense explained in Balaji's case('); and (ii) the said class i' not adequately rci•re-sented in the sc1'l'iccs under the State.

The question. therefore, is whether \fohammcdans of the entire State of Jammu & Kashmir and the Hindus of the Jammu Province are backward in the sense explained above and also whether rhey arc not adequately represented in the services of the State. Secondly, if they arc backward, whether the percentages of reserva-tions provided for rhcm in the gazelled cadre nf teachers arc rea-sonable, having regard to the employment opportunities in thar cadre of service lo the gcncrnl public. We find it very dillicult to come to one conclusion or other on the matcria! ::laced before us. It is, therefore, necessary to call for report before we can finally dispose of the writ petition. We direct the High Court of .Jammu & Kashmir either directly or through District Court to gather the necessary material, such as, the total population of the entire State, the break-up figures of the two provinces, the strength of different communities and the extent of their socid and economic backwardness and the criteria applied by the State in that regard. The High Court is directed to submit the report within rwo months from the date of receipt of the record. The parties will have liberty to place necessary material, oral and documentary, before the High Court or the District Court, as the case ntay be. Costs will abide th1: result.

Reporl ca/lrdfor.