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