MAKHANLAL WAZA & ORS. versus STATE OF JAMMU & KASHMIR & ORS.

MAKHANLAL WAZA & ORS.

STATE OF JAMMU & KASHMIR & ORS.

Februaiy 23, 1971

[S. M. SJKRI, C.J., G. K. MITTER, K. S. HEGDE, A. N. GROVER AND P. JAGANMOHAN REDDY, JJ.J

Constitution of India, 1950, Ar~ .. 16--Janunu & Kashmir Civil Service (Classification Control & Appeals) Rules 1956, r. · 25-Promotion of Teachers to the Gazetted cadre on the basis of "con1munal po/icy"-Communal policy struck down by courts as unconstitutional-Thereafter Govenment reverting f(!achers to non~gazetted grade but giving sanze emo~ luments as in gazetted grade under different nomenclature-Also promot~ ing those not parties before the COUl'o to gazetted grade Oil the basis ofi communal po/icy-Promotions violative of Art. 16--Judgmen·t-Law dec-lared by court binding on State Governn1ent 1vith respect to those not parties before Court.

Teachers and other officers of the Education Department of the State of J ammu & Kashmir were govc'rned by the J ammu and Kashmir Civil Services (Classification, Control & Appeals) Rules, 1956. According to r. 25 promotions to service or class or to sel~ction category or to grade in such se'rvice or class \Vere to -be n1adc 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 adeqnately represented in the services. This rule was abrogated in 1958. But in p'romoting teachers to the gazetted cadre respondents I 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 5()% were filled by Jamvi Hindus of the province of Jammu and (iii) the remaining 10% were given to others including Kashmiri Pandits. This was purported to be done on the ground that the Muslims of the entire state and the Hindus of Jammu Province constituted "back\Vard class". In December 1965. the present petitioners 2 and 4 filed writ petition in this Court, and in Triloki Nath & Anr. v. State of Jammu & Kashmir, (1969] I S.C.R. 103, this Court held that in effect the basis of promotion was not of reservation of some posts; it was sche1ne of distribution of all the posts community-wise and such distribution was contrary to ejie constitutional guarantee under Art. 16(1) & (2) and \\as not saved by cl. (4). The promotions granted to respondents 3· to 83 in that petition were declared Yoid, but it \Vas left open to the State to devise 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 \Vas devised. Instead those teachers 'vho were respondents in the previous \\Tit petition and \\'hose promotions became illegal \Vere ordered to be adjusted in non-gazetted cadre. They \Vere "allowed to work against 1he posts they v.;e~re holding prior to the reversion" on temporary basis. 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 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 respondent-teachers who did not figure in the ea'rlier writ petition were all promoted

~c 'ti)li~,.,

to the gazetted cadre prior and subsequent'to the decision in Triloki Nath's case on the basis of the communal policy. · The present ~tion was filed challenging the promotion of all the respondent-teachers as illegal and un-constitutional. 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 re-B tained in the posts which they were holding when they had been pro-moted 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 promo-_ tions could be made only in accordance with r. 25 and there was absolute non-compliance with the provisions of that rule. [839 CJ

(ii) The promotions of the respondents who were not parties to the previous petition were based not purely on J:ll(lrlt but were mtde on · account of the communal policy which had been 'Struck down ·by this Court as unconstitutional. The judgment which was delivered did not inerely declare the promotions granted to the respondents in the Wl'it petition filed at the previous stage as unconstitutional, hut also laid down in clear and unequivocal terms that the distribution of appointments, posts or promotions made in implementation of the communal policy was con-trary to the constitutional guarantee or Art. 16. The law declared by this Court was binding on the respondent State aud its offic~rs aud they were bound to follow it whether majority of the present •respondents were parties or not to the previous petition. [839 B; 837 HJ '

(iii) Therefore, the promotions made of all the re)pondent teachers were illegal and unconstitutional being violative of Art. 16 of the Con-stitution.

Tri/oki Nath & Anr, v. S(ate of Jammu & Kashmir & Ors., [1969]

1 S.C.R. 103, M. R. Bc.laji & Ors. v. State of Mysore, [1963] Supp. 1 S.C.R. 439 aud T11loki Nath Tiku v. State of Jammu & Kashmir & Ors., [19671 2 S.C.R. 265.

ORIGINAL Ju&1smcnoN : Writ Petition No. 108 of 1969.

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

A. K. Sen and Naunit Lal, for the petitioners.

C. K. Daphtary, N. S. Bindra and R. N. Sachthey, for respon-de.nts 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, 121to124, 128, 130, 133, 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 Constitu-tion illustrates how an attempt has been made to circumvent

[1971)3 S.C.R.

the law declared by this Court in Triloki Nath & A11other v. State of /ammu & Kashmir & Others(') by which the Sfate policy of reserving 50%·of the vacancies among the teachers in the employ-ment of the respondent State for .'¢.e 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. Acc<Jrding to the petition, petitioner No. 1 joined service in 1952 as 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 non-gazetted post was later revised sometimes before 1964 to Rs. 150-· 500: The gazetted p()st carried 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 examinatfon 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 ;md Appeals) Rules 1956 which were promulgated on June· 14, 1956. Rule 9 relates to first appointment to service or class. According to rule 19 in'making the appointment to service or class reservation may be made in favour of any backward class which, in the opinion of the Gov-ernment, is not adequately represented in the services. Rule 24 dealt with seniority. Rule 25 to the extent it is material re<tds :-

"Promotions : (1) Alf promotions shall be made by the appointing authority. '

( 2) Promotions to service or class or to 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.

( 3) All other promotions shall be nµide in accord-

ance with seniority and subject to any test or special qualifications prescribed by Government unles~

(a) the promotion of member has been with-held as penalty; or -

(b) member is given special promotion for con-spicuous ,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-·C motions to the teachers in the gazetted cadre respondents 1 and 2 adopted tb~ 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 Jarnvi Hindus (Hindus from the Jammu Province of the State majority of whont are Do-gras) 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 J ammu Province constituted "backward classes" for the purpose of employment.

In December 1965 Triloki Nath and Shambu Nath the pre-sent petitioners 2 and 4 filed writ petition in this Couri. In all 81 respondents were impleadled which included the present res-F pondents 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 promo-tions had been made on the basis of merit and seniority but purely on the ground of religion, caste ana place of birth. This Court called for report from the High eourt on the question whether the M11slims of the entire State of Jammu & Kashmir .and the Hindus of the J aminu Province constituted backward dass iu the sense explained in M. R. Balaji & !f)rs. v. The State of Mysore ([1]) and also whether they were not adequately re-H presented in the services of the State. (See Triloki Nath Tiku & Anr. v. State of /ammu & Kashmir & Ors.([2 ]) After the report was received it was found that the High Court did not record its · . (I) [1963] Suppl. I S.C.R. 439. · (2) [1967] 2 S.C.R.265. I '

opinion on the evidence. But t~s Co11;rt decision on the material before 1t. This 1s at page 105 [(1969) 1 S.C.R. 103] by Shah, J.

But t~s Co11;rt .Proceeded to give its 1t. This 1s what was observed _

"Article 16 in the first instance by cL '('2) prohibits discrimination on the ground, inter alia, of religion, r~ce, caste, place of birth residence and pe~its :ind exception to be made in the matter of reservation m favour of backward classes of citizens. The expression "back-ward class" is not used as synonymous with "backward caste" or "backward community". The members of an entire caste or community may in the social, econo-mic and educational scale of values at given time be backward and may on that account be treated as back ward class but that is· not because they are members of caste or community, but because they form class. In its ordinary connotation the expression "class"means .homogenous section of the people grouped together because of certain likeness or common traits, and who are identifiable by some common attributes such as status, rank, occupation, residence in locality, race, re-ligion and the like. But for the purpose of Art. 16(A) -in determining whether section forms class, test solely based on caste, community, 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 provision for reservation of appointment to posts in favour of any back-ward class of ci1izens had been produced. There were ,a number of government orders by which the proiµotions 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 scheme of distribution o4' all the posts communitytwise. 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 cl1rnse (4). The promotions granted to respondents 3 to 83 in that petition were declared void. It was left open to the State to devise >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

that certain rules have been promulgated by notification No. S.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 giv~g ostep.sible effect to ~e decisio!l of this Court. Those teachers who were respondents m the previous writ. petition and whose promotions became illegal in . view . ~f the pronouncement of this Court were ordered to be ad1usted m non-gazetted cadre of which the grade was Rs. 150-5~. ~ey were "allowed to work against the posts they were hol~mg pnor to their reversion" on temporary basis. Numerous copies of the orders which have been annexed fo the petition show that this was the common pattern that was followed. new nomenclature was evolved·for the post of Head Masters. They were called Teachers-c in-charge. They were to get the srufle salary which they were getting when they were in 1he gazetted cadre of Rs. 300-600. For instance, if was working as Head Master in the gazetted post and was drawing 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 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 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 disputedl that ordinarily he could not hiwe 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 soniewhat 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 npt only seniority but merit 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 tea-chers would not have been promoted to the gazetted cadre even , ~ough merit and other factors had entered into their promotion mter-se. As regards the other respondent teachers who did not . figure in the .earlier petition, they were all promoted to the gazet-G ted cadre pnor and subsequent to the previous decisiott in com-plete defiance of the law laid down by this Court. Such 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 give!) in tli.at petition. It may be observed immediately that such position is wholly un· t~nable and misconceived. The judgment which was delivered ~d not m~~ely declare the promotions granted to the respondents m the petition filed at the previous stage as unconsiitutional but also laid down in clear and unequivocal tenns that the distribution

-0f appointments, posts or promotions made in implementation of the communal policy was contrary to the constitutional guarantee of Article 16. The law so de.clared by this Court was binding Ql1 the respondent State and its officers and they were bound to follow it whether 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 al the judgmi:mt 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 tea-chers in the list of seniority. Fot instance, Mohd. Yusuf Masoodi who was respondent No. 52 in the previous writ petition had been promoted to the post gf Head 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 w·~re working as teachers under him in the same school. Masoodi was drawing salary above Rs. 3~0/­per month whereas the two Kashmiri Pandit teachers were d~awing -0nly 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 insiance is given of Ghulam Mohiuddin Wani-who had been promoted as Teacher-in-Charge High School Shogapore. It is stated that his name did not appear in the seniority list whereas Triloki ·Nath Kaul was much senior to him but was workfog as 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 contr,adicted the facts stated in para 20 of the petition but have taken .certain pleas of general nature and of legal charac-ter. 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 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 Dro-

moted tu 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 ex-pressly quashed by this Court. Respondents 108 to 218 were promoted during the pendency of the writ petition and respondents 219 tu 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 !"..Spondents 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. Respondents 3.8 to 107 who were parties to the previous petition were reverted to the non-gazetted grade but ·C they were still retained in the posts whiCh they were holding when they had been promoied to the gazetted grade although in some cases the nomenclature was changed from Head Master to Tea-cher·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 th.ere was absolute non-compliance with the provisions of that r..;Je. The promotions thus made of all the respondent· teachers were illegal and unconstitutional being violative of Arti· cle 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 oo revised amJ reconsidered and appropriate orders must be passed by respon· dents l and 2 with regard to them as also the petitioners in accord-ance with law. The new rules stated to have bP..<m framed have not been shown to us and we wish to express no opinion on their applicability.

l!' The present petition shall stand allowed in the manner mdi· cated above. The petitioners shall be entitled to their costs in this Court.