Janki Prasad Parimoo & Ors Vs.
State of Jammu & Kashmir & Ors [1973] INSC 6 (10 January 1973)
PALEKAR, D.G.
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 arePrinciples
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 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 recordsof 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 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 person’s 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 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 for10 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].
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 respondents 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 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. 103241 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 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 interviews 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 allegations 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 highpowered
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 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
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 between the two rules because even as under the 1956 rules the
posts of Head Masters had to be filled on the merit-cumseniority 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
unsatisfactory. 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
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.
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 extracurricular 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 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 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 educational
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 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 educationally 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 becauseof 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
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 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 contains
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 occupations. 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 grandfather did.
There is no doubt that a large number of
occupations mentioned in the fist is capable of being followed as a 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 wellknown, 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
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 Committee 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 proceed 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 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 exservicemen 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, therefore;
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 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
re259 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 inhabitants 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
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 belonging 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 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.
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