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

2. The Petitioners, who are 10 in number, are in the service of the Education Department of the State of Jammu and Kashmir. According to the petition, petitioner No. 1 joined service in 1952 as a teacher in the Government High School, Poonch. He had passed the Bachelor of Teaching Examination and was given the grade of Rs. 80-8-200. This grade which was of a non-gazetted post was later revised sometimes before 1964 to Rs. 150-500. The gazetted post carried a grade of Rs. 300-600. Petitioner No. 2 entered service of the erstwhile State of Jammu and Kashmir in 1943 as teacher in the Government School. Tregham. He later on passed the examinations of Bachelor of Teaching and the Master of Arts and was selected in July 1968 for teaching in the Higher Secondary School. Petitioners 3 to 10 were trained graduates holding degrees of Bachelor of Education. Petitioners 3, 4, 6, 7, 9 and 10 had also passed the Master of Arts examination and with the exception of petitioner No. 10 were selected for teaching in Higher Secondary Schools in July 1968.3. All the teachers and other officers of the Education Department of the State were governed by the Jammu and Kashmir Civil Services (Classification, Control and Appeals) Rules, 1956 which were promulgated on June 14, 1956. Rule 9 relates to first appointment to a service or class. According to rule 19 in making the appointment to a service or class reservation may be made in favour of any backward class which, in the opinion of the Government, is not adequately represented in the services. Rule 24 dealt with seniority. Rule 25 to the extent it is material(1) All promotion shall be made by the appointing authority.(2)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 test that Government may prescribe in this behalf seniority being considered only where the merit and ability are approximately equal.(3) All other promotions shall be made in accordance with seniority and subject to any test or special qualifications prescribed by Government unless -(a) the promotion of a member has been withheld as a penalty; or(b)a member is given special promotion for conspicuous merit and14 and 16 of the Constitution were made applicable to the State of Jammu and Kashmir in 1954. Rule 19 is stated to have been abrogated in the year 1958. But in giving Promotions to the teachers in the gazetted cadre respondents I and 2 adopted the following basis, which will be called the communal policy hereafter :(1) 50 per cent of the vacancies were filled from among the Muslims of the entire State.(2) 40 per cent out of the remaining 50 per cent vacancies were filled by Jamvi Hindus (Hindus from the Jammu Province of the State, majority of whom are Dogras) and(3) the remaining 10 per cent of the posts were given to others including Kashmiri Pandits.This was purported to be done on the ground that Muslims of the entire State and the Hindus of Jammu Province constituted "backward classes" for the purpose of employment.4. In December 1965 Triloki Nath and Shambu Nath, the present petitioners 2 and 4 filed a writ petition in this court. In all 81 respondents were impleaded which included the present respondents Nos. 38 to 107. In that petition it was alleged that the communal policy of promoting teachers to the gazetted cadre was not disclosed in any order made by the State but had been arrived at on the footing of the recruitment by promotion made to the gazetted post of teachers from time to time. The promotions had been made not on the basis of merit and seniority but purely on the ground of religion, caste and place of birth. This court called for a report from the High Court on the question whether the Muslims of the entire State of Jammu and Kashmir and the Hindus of the Jammu Province constituted backward class in the sense explained in M. R. Balaji v. State of Mysore, (1963) Suppl. 1 SCR 439   = (AIR 1963 SC 649  ) and also whether they were not adequately represented in the services of the State. (See Triloki Nath Tiku v. State of Jammu. and Kashmir, (1967) 2 SCR 265   = (AIR 1967 SC 1283  ) ). After the report was received it was found that the High Court did not record its opinion on the evidence. But this court proceeded to give its decision on the material before it. This is what was observed at page 105 ((1969) 1 SCR 103  ) = (AIR 1969 SC 1   at pp. 2, 3) by Shah16 in the first instance by cl. (2) prohibits discrimination on the ground, inter alia, of religion, race, caste, place of birth, residence and permits an exception to be made in the matter of reservation in favour of backward classes of citizens. The expression "backward class" is not used as synonymous with "backward caste" or "backward community". The members of an entire caste or community may in the social, economic and educational scale of values at a given time be backward and may on that account be treated as a backward class but that is not because they are members of a caste or community, but because they form a class. In its ordinary connotation the expression "class" means a homogeneous section of the people grouped together because of certain likeness or common traits, and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race, religion and the like. But for the purpose of Art. 16 (4) in determining whether a section forms a class a test solely based on caste, community, race, religion, sex, descent place of birth or residence cannot be adopted because it would directly offend thewas pointed out, that no formal order making a provision for reservation of appointment to posts in favour of any backward class of citizens had been produced. There were a number of government orders by which the promotions had been made according to the communal policy. There was no reference in any of the orders to selection of officers on the basis that they belonged to backward classes. It was held that in effect the communal policy was not of reservation of some posts: it was a scheme of distribution of all the posts community-wise. Such distribution made in implementation of the so called policy was contrary to the constitutional guarantee under Art. 16 (1) and (2) and was not saved by clause (4). The promotions granted to respondents 3 to 83 in that petition were declared void. It was left open to the State to devise a scheme consistent with the constitutional guarantee for reservation of appointments to posts or promotions in favour of any backward class of citizens which, in the opinion of the State, was not adequately represented in the services.

Reasoning:
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.