Case: Janki Prasad Parimoo &amp; Others Vs. State of Jammu &amp; Kashmir &amp; Others

more backward and others less backward, a thing not permitted by Balajis case, 1963 Supp (1) SCR 439 = (AIR 1963 SC 649 ). 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.34. Chapters V and VI of the Rules identify residents of certain areas as backward. In Chapter V the residents of certain villages mentioned in Appendix II are considered as backward these villages being within five miles of the ceasefire line. In Chap. 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 Chapters X and IX respectively of the report. Chapter IX relates to "bad pockets". 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 still some others which suffer from deficient production on account of soil being rocky and scandy and irrigation facilities being scanty and inadequate. Besides these, there are areas where due to non-availabildity 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."35. 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 residents of these areas are living in almost primitive conditions and they are all socially and educationally backward. The civilizing 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 and 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 male 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 because 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.36. 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 areas 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 areas 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 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.37. 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.38. In view of the above findings the selections made by Departmental Promotion Committee have to be set aside.

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

Explanation:
1[ds]18. 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.e second consideration is the wholly inept way of makingselections. 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 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 absurd to make selections with such a cutting score. The expert advisor had advised 50 % of 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 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.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 Balajis case referred to above 1963 Supp (1) SCR 439 = (AIR 1963 SC 649  ) 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.Before dealing with those points, we shall dispose of the limited controversy involved in Writ Petn. No. 175 of 1971 although the conclusion on the above two points may indirectly affect the parties in this 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 juniors 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 post 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 wasthese 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 valid appointment and, therefore, their confirmation may not affect the question.the other hand,it is to be noted that the respondents seem not to have figured in Triloki Nath Tikoos case, (W. P. No. 107 of 1965) filed in 1965, (reported in AIR 1967 SC 1283  ). 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 Petn. No. 107 of 1965 (Triloki Nath Tikoos case) or in Writ Petn. 108 of 1969 (Makhanlals case) = (reported in AIR 1971 SC 2206  ) 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 beforeis 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.17. 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 thehis affidavit the Educational Secretary has admitted that such confidential records were not made available to the Committee and the reason given was as followsservice 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 veryis rather extraordinary that such a statement should be made by a high official of the Government. It is impossible to conceive 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 appointments 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 selections on the basis of mereis, therefore, customary for a Committee making the selection 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 beThe 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 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.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.27. The Jammu and Kashmir Scheduled Castes and Backward Classes Reservation Rules, 1970 are comprised of 5 parts.29. There is no doubt that a large number of occupations mentioned in the list is capable of being followed as a traditional occupation. But some of them, at least, do not deserve to be called traditionalthese 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 4.30. 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 the date when the grand-son 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.The memorialists contended that they cannot keep pace with the ever-rising price index as rates of pension have remained static and have not 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 meagre earnings for the education of their children." The Committee felt that these pensioners deserve on these 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 are about 90,000 and civil posts pensioners are about 15,000. It is difficult to say that these pensioners are a class in the sense that they are a homogeneous group. They are an amorphous section of Government servants who by the accident of receiving Rs. 100/- or less as pay at the time of retirement or being ex-servicemen of certain grades are pushed into an artificially created body. It may be that they belong to class IV or similar grade service of the State. But that is not the test of their social and educational backwardness. In days when sources of employment were few, many people though socially advanced might have accepted low paid jobs. Some of them may have failed to make the educational grade and were hence forced by necessity to accept such low paid jobs. Some others might have pre-maturely 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, 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 differentiating between them by calling some more backward and others less backward, a thing not permitted by Balajis case, 1963 Supp (1) SCR 439 = (AIR 1963 SC 649  ). 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 backwardChap. 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 Chapters X and IX respectively of the report. Chapter IX relates to "bad pockets". 10 such bad pockets have been identified by the Committee and cover 696 villages in certain Districts and Tehsils far away in the interior.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 residents of these areas are living in almost primitive conditions and they are all socially and educationally backward. The civilizing 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 and 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 male 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 because 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.36. 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 areas 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 areas 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 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.37. 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.