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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 8 34 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