Case: Makhanlal Waza &amp; Ors Vs. State Of Jammu &amp; Kashmir &amp; Ors

originally he and the petitioners belonged. It has been stated somewhat tamely in the return of respondents 1 and 2 that when these teachers who were affected by the decision of this court had been promoted to the gazetted cadre not only seniority but merit had also been taken into consideration. But it has not been denied and this fact has been admitted before us in the course of arguments that but for the so-called communal policy these teachers would not have been promoted to the gazetted cadre even though merit and other factors had entered into their promotion inter se. As regards the other respondent teachers who did not figure in the earlier petition, they were all promoted to the gazetted cadre prior and subsequent to the previous decision in complete defiance of the law laid down by this Court. Such a course has been sought to be justified on the tenuous ground that they were not parties to the previous petition and therefore their cases would not be governed by the decision given in that petition. It may be observed immediately that such a position is wholly untenable and misconceived. The Judgment which was delivered did not merely declare the promotions granted to the respondents in the writ petition filed at the previous stage as unconstitutional but also laid down in clear and unequivocal terms that the distribution of appointments, posts or promotions made in implementation of the communal policy was contrary to the constitutional guarantee of Article 16. The law so declared by this court was binding on the respondent State and its officers and they were bound to follow it whether a majority of the present respondents were parties or not to the previous petition.6. In para 20 of the petition instances have been given which show that in spite of the judgment of this court certain teachers who had been promoted to the post of Head Masters are still Head Masters though they are very much below Kashmiri Pandit teachers in the list of seniority. For instance, Mohd. Yusuf Masoodi who was respondent No. 52 in the previous writ petition had been promoted to the post of Head Master, Nowhatta. Even after the judgment he was continuing as Head Master although he was placed at No. 243 in the seniority list of 1961. Messrs. Deva Kaul and Dwarwa Nath who were 68 and 76 respectively in that seniority list were working as teachers under him in the same school. Masoodi was drawing a salary above Rs. 350/- per month whereas the two Kashmiri Pandit teachers were drawing only Rs. 300/though both of them were senior to him and were not in the same grade of Rs. 150-500 to which Masoodi is stated to have been reverted. Similarly those teachers who were given promotions after the appointments on communal basis had been struck down had been promoted following the same rule. In para 22 an instance is given of Ghulam Mohiuddin Wani who had been promoted as Teacher-in-Charge High School Shogapore. It is stated that his name did not appear in the seniority list whereas Triloki Nath Kaul was much senior to him but was working as a teacher under him although the salary which Kaul was getting was Rs. 250/- per month and the salary which Wani was drawing was only Rs. 210/- per month. In the return respondents I and 2 have not contradicted the facts stated in para 20 of the petition but have taken certain pleas of general nature and of legal character. Similarly with regard to para 22 it has been stated inter alia in the return."As regards the individual cases referred to in para 22 of the writ petition the averments and submissions made therein are misconceived and unwarranted and misleading"Our attention has, however, not been invited to any facts or particulars relating to the aforesaid instances in the return which would throw doubt on the correctness of the instances given in the petition in paras 20 and 22.7. According to the petitioners the present respondents 3 to 27 were not parties to the previous proceedings but they were promoted to the gazetted grade in an officiating capacity though they were junior to petitioner No. 1. Respondents 38 to 107 were parties to the previous petition and their promotions were expressly quashed by this court. Respondents 108 to 218 were promoted during the pendency of the writ petition and respondents 219 to 251 were promoted after the decision of this court in an officiating capacity. It is abundantly clear and this position has not been controverted that all the promotions which were made of the respondents who were not parties to the previous petition were based not purely on merit but were made on account of the communal policy which had been struck down by this court as unconstitutional. Respondents 38 to 107 who were parties to the previous petition were reverted to the non-gazetted grade but they were still retained in the posts which they were holding when they had been promoted to the gazetted grade although in some cases the nomenclature was changed from Head Master to Teacher-in-Charge. In the absence of any rules lawfully promulgated for employment of backward classes promotions could be made only in accordance with rule 25 and there can be no manner of doubt that there was absolute non-compliance with the provisions of that rule. The promotions thus 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 law. The new rules stated to have been framed have not been shown to us and we wish to express no opinion on their applicability.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It is abundantly clear and this position has not been controverted that all the promotions which were made of the respondents who were not parties to the previous petition were based not purely on merit but were made on account of the communal policy which had been struck down by this court as unconstitutional. Respondents 38 to 107 who were parties to the previous petition were reverted to the non-gazetted grade but they were still retained in the posts which they were holding when they had been promoted to the gazetted grade although in some cases the nomenclature was changed from Head Master to Teacher-in-Charge. In the absence of any rules lawfully promulgated for employment of backward classes promotions could be made only in accordance with rule 25 and there can be no manner of doubt that there was absolute non-compliance with the provisions of that rule. The promotions thus 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 law. The new rules stated to have been framed have not been shown to us and we wish to express no opinion on their applicability.