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PETITIONER: TRILOKI NATH & ANR.

       Vs.

RESPONDENT: STATE OF JAMMU & KASHMIR & ORS.

DATE OF JUDGMENT: 23/04/1968

BENCH: SHAH, J.C. BENCH: SHAH, J.C. HIDAYATULLAH, M. (CJ) SIKRI, S.M. RAMASWAMI, V. BHARGAVA, VISHISHTHA

CITATION:  1969 AIR    1            1969 SCR  (1) 103  CITATOR INFO :  RF         1971 SC2206  (1,4)  R          1972 SC1375  (87)  RF         1973 SC 930  (5,33)  RF         1975 SC 563  (21,22)  RF         1985 SC 621  (15,16)  F          1985 SC1495  (12,61,119,120)  RF         1986 SC1224  (9,17)  RF         1992 SC   1  (91)

ACT: Constitution   of  India,  1950  Art.   16-Backward   class- Reservation  of posts on the basis of religion and place  of residence-When protected by Art. 16(4).

HEADNOTE: The petitioners filed a writ petition in this Court claiming that the respondent State had discriminated against them  in the  matter  of  promo(ion  to the  gazetted  cadre  of  the Education  Department  on grounds of religion and  place  of residence and thus violated Art. 16(2) of the  Constitution. The case that junior officers were promoted to the  gazetted cadre over officers senior to them on the ground solely that they-the junior members-belonged to the Muslim community  or that they were Hindus belonging to the Jammu province of the State,  was not denied by the State, but, was sought  to  be justified  on  the  ground  that  the  State  had  acted  in consonance  with the principles of Art. 16(4) on  the  basis that  Muslims as a community formed a backward class in  the State, and similarly, Hindus from the Jammu province  formed a  backward  Community, and that they  were  not  adequately represented in the services of the, State. HELD  :The  expression  ’backward  class’  is  not  used  as synonymous  with ’backward caste’ or  ’backward  community’. The expression ’class’ in its ordinary connotation may  mean a homogenous 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; but, for purposes of Art. 16(4) in determining whether

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a  section  forms  a class. a test solely  based  on  caste, community,  race, religion, sex, descent, place of birth  or residence  cannot  be  adopted, because  it  would  directly offend the Constitution.  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 backward class, but that  is  not because  they  are  members of a  caste  or  community,  but because they form a class. [105 F-H] In the present case, the State has not produced any evidence to  show  that any pro-vision. was made for  reservation  of appointments  or  posts in favour of any backward  class  of citizens.  On the other hand, select;ion of candidates seems to  have been made merely to secure adequate  representation of  such elements as were not adequately represented in  the services.   Therefore, when the State proceeded not to  make reservations  in  favour  of  any  backward  class,  but  to distribute the total number of posts or appointments on  the basis  of community or place of residence.  no  reservation, permitted by Art. 16(4), can be said to have been made,  and the implementation of such a policy would be contrary to the constitutional guarantee tinder Art. 16(1) and (2). [106 A-B F--G; 107 A-C]

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 107 of 1965. Petition under Art. 32 of the Constitution of India for the enforcement of fundamental rights. 104 M.C.  Setalvad,  Naunit Lal and R. Gopalakrishnan,  for  the petitioners. C.   K.  Daphtary, Attorney-General, M. S. K. Sastri, R.  H. Dhebar and R. N. Sachthey, for respondents Nos. 1 and 2. The Judgment of the Court was delivered by Shah, J--By order dated December 15, 1966, this Court called upon  the  High  Court of Jammu &  Kashmir  to  "gather  the necessary  material,  such as, the total population  of  the entire State, the breakup figures of the two provinces, the, strength  of ,different communities and the extent of  their social and economic backwardness and the criteria applied by the  State in that regard", -and to, make a report  in  that behalf.   The  report has now been submitted to  this  Court together  with copies of the evidence oral ,and  documentary produced by the parties.  It is unfortunate that the learned Judge  who heard the matter did not record his  opinion  -on the evidence.  We do not, however, on the view we take, deem it  necessary  to  send back the papers  for  recording  the opinion  ,of  the  High Court on the  evidence  led  by  the parties pursuant to the previous order. The  petitioners  had by the writ petition claimed  that  in declining to promote them and others similarly circumstanced to  the  gazetted  cadre, the State  had  "acted  purely  on communal  basis  inasmuch as senior members of  the  Service belonging"  to  one  community had  been  placed  below  the junior-most  members of other communities only on the  basis of their respective community and on the basis of  residence in  a  locality,  and had thereby denied  the  guarantee  of equality  in  matters of employment and appointment  to  the gazetted cadre of the Education Department under Art. 16  of the  Constitution.   By  cl.  (1) of  Art.  16  equality  of opportunity in matters relating to employment or appointment between  members  of  the  same class  is  guaranteed  by  a positive injunction : cl. (2) enjoins the State not to  dis-

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criminate  against citizens in respect of any employment  or office  ,on  the  ground  of  race,  religion,  caste,  sex, descent, place of birth or residence.  Clause (4) provides a limited  exception to the operation of the other clauses  of Art.  16  : it authorises the State to make  provisions  for reservation  of appointments or posts in favour of  backward classes of citizens, which are not adequately represented in the services under the State. The  petitioners  claimed that they had  been  discriminated against  in the matter of promotion to the  gazetted  cadre, solely  on  the ground of religion and place  of  residence. The case that junior officers were promoted to the  gazetted cadre over officers senior to them on the ground solely that they-the junior members -belonged to the Muslim community or that they were Hindus 105 belonging  to  the Jammu province of the State  of  Jammu  & Kashmir  was not denied.  But this prejudicial treatment  of senior officers was sought to be supported on the plea  that the State had acted in consonance with the principles of cl. (4) of Art. 16 of the Constitution.  It was the case of  the State that Muslims as a community in the whole of the  State of  Jammu & Kashmir formed a backward class of citizens  and they  were not adequately represented in the services  under the  State  : similarly Hindus from the  province  of  Jammu formed   a  backward  community  and  were  not   adequately represented  in  the  services of the  State,  and  on  that account  reservation in the matter of appointments or  posts and  promotions  in the services of the State  was  made  in respect of those classes.  Clause (4) of Art. 16 undoubtedly empowers  the State to make reservation of  appointments  or posts  in favour of any backward class of citizens so as  to give  the class an adequate representation in  the  services under the State.  The provision making such reservation need not  be  by  a statutory enactment: it may  be  made  by  an executive  order  or  direction.  But there is  not  even  a formal  executive order expressly dealing with,  reservation of  posts and appointments in the Education Department.   On behalf of the State it is claimed that as a matter of  State policy, in making appointments and promotions,  reservations in fact have been made by the State -as alleged by the peti- tioners  with some variations as to percentage reserved  for the  Hindus from the province of Jammu.  No opinion need  be expressed  in this case on the question whether a  provision under  Art.  16(4) is not effective, unless it  is  made  by legislation, or by an executive order formally published. 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 an exception to be  made in the matter of reservation in favour of  backward classes of citizens.  The expression "backward class" is not used  as  synonymous  with  "backward  caste"  or  "backward 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  backward 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  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.   But  for the purpose of Art.  16(4)  in  determining whether  a  section forms a class, a test  solely  based  on caste,  community,  race, religion, sex, descent,  place  of

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birth  or  residence  cannot be adopted,  because  it  would directly offend the Constitution. L10 Sup.  C.I./68-8 106 In the voluminous evidence produced before the High Court -a formal order making a provision for reservation of  appoint- ments  or posts in favour of any backward class of  citizens does  not  find  a place.  The only evidence  to  which  our attention has been invited is the statement of Malik  Ghulam Nabi,  who  deposed  "that  the  policy  laid  down  by  the Government  in  matters  of  the  employment  to  the  State services  is that 50% of the vacancies are reserved for  the Muslims  of  Kashmir  (for the entire State).   Out  of  the remaining 50%, 40% are reserved for the Jammu Hindus and  10 per  cent  for the Kashmiri Hindus.  There are a  number  of Government  orders by which this policy has been laid  down, but due to the short time at my disposal, I have, been  able to  get only one copy of such order, which is signed by  the Chief Secretary whose handwriting I know and identify".   In cross-examination  Malik Ghulam Nabi stated that  the  order produced  by him applied to all kinds of services under  the State  and it was "being implemented even now and was  still in force".  The witness was unable, to speak to the criteria on  the basis of which the order was issued.  The  order  of which  a copy was produced by Malik Ghulam Nabi  related  to the  promotion to the posts of Superintendents in the  Civil Secretariat  and other offices.  It purports to be a  record of  the decisions taken by the Council of Ministers  in  the matter  of promotion of Superintendents in the  Secretariat. It was recorded in paragraph 4 of the order that a Selection Board  consisting of four Secretaries to the Government  was set up and they were asked "to prepare a Select List on  the basis of merit-cum-seniority, keeping in view the policy  of adequate   representation  of  such  elements  as  are   not adequately represented in the services and to pay due regard to  Provincial proportions".  There is no reference in  any, of the clauses of the order to selection of officers on  the basis that they belong to backward classes.  The  injunction to the Secretaries to select candidates "keeping in view the policy  of adequate representation of such elements as  were not  adequately  represented  in the  services",  is  not  a provision  making  reservation of appointments or  posts  in favour of backward classes.  Selections made, assuming  that similar   orders  were  passed  enjoining  the   making   of promotions to the gazetted cadre in the Educational Service, could  not  be  deemed to have been made  on  the  basis  of backwardness of the classes to which they belonged. The State of Jammu & Kashmir had, it is admitted, from. time to  time  framed  lists of backward communities  :  that  is evident  from  Ext, Z-3 which is a list of classes  who  are regarded  by the State as backward.  But it is  not  claimed that  in  making  promotions to the gazetted  cadre  in  the Educational  Service, the authorities acted in pursuance  of the  List Ext.  Z-3.  As already observed, the nominal  rule contemplated by the constitutional provi- 107 sion is equality between aspirants to public employment: but in view of backwardness of certain classes it would be  open to  the  State  to  make  a  provision  for  reservation  of appointments  or  posts  in their favour.   When  the  State proceeds not to make reservations in favour of any  backward class,  but  to  distribute the total  number  of  posts  or appointments   on  the  basis  of  community  or  place   of residence,  no reservation permitted by cl. (4) of  Art.  16 can  be said to be made.  In effect the State  policy  which

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Malik  Ghulam Nabi spoke to was a policy not of  reservation of  some  appointments  or  posts  :  it  was  a  scheme  of distribution  of all the posts communitywise.   Distribution of appointments, post,; or promotions made in implementation of  that  State  policy is contrary  to  the  constitutional guarantee  under  Art.  16(1) and (2)and  is  not  saved  by cl.(4). The   promotions  granted  to  respondents  3  to   83   are accordingly  declared  contrary to the provisions  of  Arts. 16(1) and (4) of the Constitution and therefore void.   This will  not 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.  The petitioners will be entitled to  their costs  of  the petition including the costs of  the  hearing which  culminated in the interlocutory order, and the  costs incurred before the High Court. V.P.S.          Petition allowed. 108