JANKI PRASAD PARIMOO & ORS. ETC. ETC.

v:.

STATE OF JAMMU & KASHMIR & ORS.

January 10, 1973

{S, M. SIKRI, C.J., A. N. RAY, D. G. PALEKAR, M. H. BEG AND

S. N, DWIVEDI, JJ.] The Jammu & Kashmir Civil Services Classification Control and Appeals) Rules 1969-Selection for promotion of teachers to JJOtlS of Jieadmaster and higher posts-Selection to be on merit-c="'eniority basis--Selection on basis of interview only without taking into aceount .character roll and confidential reports of candidates and by adopting o very

/ow curting score cannot he upheld.

Jammu & Kashmir Scheduled Castes and Backward Classes (Restl"' vation Rules) 1910-Backward clarses, what are-Principles for deter- mining-Rules whether violative A.rt. 16(4), Constitution of India.

On 14·6-1956 the State of Jammu & Kashmir promulgated the Jammu & Keshmir Civil Services (Classification O>ntrol & Appeals) Rules 1956. Rule 19 provided that re,.rvation 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 a8 a backward clasa gave them a reservatio, n of 50% in the matter of promotion of teachers to the post of headmasters. This Court in Triloki Nath v. State of Jam1nu &: Kashmir, [1967] 2 S.C.R. 265 and Makhan/al Woza & Ors. v. State of Jammu & Kashmir & Ors,, [1971] 3 S.v.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 Mak/Jan/al 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 Departme:ntal Promotion Committee was appointed in accordance with the rules and the Committee was directed to interview the candidates. The interviews were held rom March to July 1971. The selections were to be made in accordance with the Jammu & Kashmir Civil Services (Clossification Central and Appeals) Rules 1969 which had replaced the old rules of 1956.

Meanwhile In accordance with the recommendations of the Backward Cldsses Committee the State Governme'llt had also issued on April 18, 1970 the Jammu & Kashmir Scheduled Castes & Backward Cfasses (Reservation Rules) 1970. Later, on August 8 .• 1970, a further order was passed known as Jarnmu & Kashmir Scheduled Castes & Backward Classes (Reservation of appointment by Promotion) Rules 1970.

The present petitioners were adversely affected by the selections made by the aforesaid Departmntal Promotion' O>mmittee In 1971. l:n their petitions under Art. 32 of the Constitution the ques lions that fell fulconsideration 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 asic1t:.

HELD : (i) Undoubtedly wht!ll> 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 aole test lll

J, P, PAll!MOO V, J, & K. STATE 237

cases of this kind. The efficiency of a teacher and hi~ qucatio~ to be appointed as Headmaster depend on several cons1derations. HIS character, his teachi:ng experience, ability to manage his class, his popularity with, the students and the high proportion of successful students be 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 mnke a seLection after interview should insist that the character roll and the service record of the teacher should be befdre it.

In the present case however the Comm:ittee did t 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.

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 ma:ay 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 Mong ali:d 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" i; n Art. 16( 4) m011ns 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 povrty cannot be the test of backwardness because in this country except for a small percentage of the population the people are ge; nerally poor-some being more poor, others less poor.

In the rural areas some sectors of the population are advancing socially and educa~ tiona1ly while other sectors are e.pathetic.

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 explai:oi.!d in Balc.ji's case which pointed out that backward classes for whose improvement specifil provision was contemplated by Art. 15(4) must be comparable to Sche duled 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 determinin2 which other classes should be ranked as backward classes will be considerably lased (252 DJ

Jn identifying ba>kward classes one has to guard oneself against including therein sections which are sociaUy and educatio.nally advanced because the whole object of reservation would otherwise be frustrated.

[253 D] H M. R. Balaji and Ors. v. State of Mysore, [1963] Supp. 1 S.C.R.

Smte of Mysore. [1%4] 6

S.C.R. 368 referred to.

(iii) The Jammu & Kashmir Scheduled Castes and Backward Classes (Reservation Rules) 1970 were defective ood incapable of being given effect to for the followg 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 occupatiom.

Similarly it is difficult to say that the occupations mentioned in items (5), (7), (11), (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 bis 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 uinder Articles 15 ( 4) ood

16( 4) has given up his low income occupation and become a trader or Government Servant it will be wrong to give the persons the special benefit merely on the ground that his grandfather was following a certaiin traditional occupation.

(d) It was not known on what basis the Government in Rule 5 had included cast.es mentioned at serial Nos. 20 to 23 as socially and educationally backward.

( e) The designation of cultivators of la."'1 as backward on the basis of the sire of the holding, as bad been dooe in Chapter III of the Rules must be held to be erroneou_s.

The error in such a case lies in placing economic consideraion alone above considetations wb.'ich 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 peinsioner is supposed to belong to the backward class if such

pensioner has retired from certain Government posts mtioned in Appendix I and if the maximum of the scale of pay of these wsts 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 resideu>ts of certain areas specified in Chapter V and VI of the Rules are rightly da.ignated as backwa; rd, Rules 10 Gnd. 11 have been framed that the advantage. is likely to be misused by unporters.

Outsiders who, in the course of their trade or business happened to live in these areas for 10 years out of the pa.st 20 years would be able to claim the benefit. This loophole must be plugged and till that is done, tbe production of a certificate from tbe Tehsildar as fo the backwardness of any person will be of little avail.

Ln view of the abGve findings the selections made by the Departmental Promotion Committee must be set aside. [260 CJ

J. "· PAR!MOO v. J. & K. STATE (Palekar, J.) 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, 0. C. Mathur, P. C. Bhartari and Bhuvanesh Kumari, for respondents Nos. 1 and 2 (in W. P. Nos. 175 and 359)

0. 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, D 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

P ALEKAR, J.

These three petitions under Article 32 are a sequel to the action taken by the State of J ammu & 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 aliove 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 totlll population of the State.

In cours' 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 modi5cations was made applicable to the State. In spite of it representation in the services followed the communal pattern. On 14th June 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

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 aQ.d ability and hall 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 communitie3. 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 allegingthat 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 J ammu 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 directd 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 lammu & Kashmir.(')

After the material. was collected the case again came before this Court for consideration and this Court held (See : Triloki Nath G

v. State of J&K.}( 2) that on the material before it it was clear that there was no reservation as penhitted 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 bCen promoted

conacy to the provisions. of Article 16 (l ) and ( 4) . Their pt!>- H motions were declared void.

The Court observed "this will not, .

(I) f1951] .2 S.C.R. 26S.

(2) [1969] !S.C.R.103

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 o' th~ petitioners that teachers-in-charge were, for all purposes, includi'.1g pay, Head Masters while, on the other hand, it is stated for the State that they were entitled 0nly 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 wern made respondents.

This Court found that al! the promotions of the respondents in that case were made not purely on m.erit as requiroo 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

clascs, promotions could be made only in accordance with rule 25 and there can be no manner of doubt that there was absolutelv 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 Officer, from the eligible teachers. As a preliminarv to the same the State reverted by an order dated 23-2-1971 all those teacher.s who had officiated as Head Masters or had been designated as teacher;·in-charne.

All of them were asked to hand over' charge to the second teacher

17-ll!SupCT/73

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 acc0rdance 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 officiatiiig 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 promi"tlY 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 tmder the Rules for backward classes, but the whole exercise was merely to secure about 90% of the posts to Muslims. ln 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 iri 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 had. boycotted the interviews on the ground that the interviews were bound to be a fraud. The respondents 3 to 3 25 are the teachers who had been selected at the interview.

H ...

It must be stated here that in 1967 the Government of Jammu & Kashmir had appointed the J ammu & 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 high-powered 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 J ammu & 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 backward.

Acting substantially on the recommendations of the Committee the State Government issued on April 18, 1970 the Jammu & Kashmir Scheduled Castes and Backward Classes (Reservatioa 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 & Kash mir 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

und 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 inthe 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 appe&r 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 m!Jde 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 tum in the 10% seats earmarked for Kashmiri Pandits and others and, therefore, although they were senioi:s 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 petitionern 4 to 7 in 1964. Thev 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 Officer• 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 notbeen 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 dlthough 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 ; nost of them were also confirmed in the posts.

There may be sonie substance in the petitioners' contention that the earlier appointment of these respondents, being based on the communal principle, was not a

J, P. PAIUMOO v. ; J, & K. STATE (Palekar, I.) 245

valid appointment and, therefore, their confinnation 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, !herefore, 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 l 08/ 1969 (Makhanlal's case) in which his appointment as He<1_d Master had been set aside as invalid, his case will have to be treated like that of any other offi, ciating 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 tum 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-cum-seniority 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 fo• interviews.

We are not concerned with these allegations.

It was also alleged that the selections were stagemanaged 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

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 Jam vi Hindus had been selected.

There are, however, two important considerations which show that the selections by interview were thoroughly unsatis factory.

The candidates for selection included a large number of senior teachers many of whom liad officiated as Head Masters over long periods.

They were asked to appear before a Com-·· mittee consisting of 4 officials. One was a Member of the Public Service Commission, the second was the Secretarv 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 con- E siderations.

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 <hem.

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." H

It is rather extraordinary that such a statement should be made by a high official of the Government. It is difficult 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 Serviee 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 satifactory. 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 ca!l 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 Educa tion 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 6ehalf 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 voce test.

For this purpose the service rcord and personal files of the candidates were the bet 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 cat"'.er in the service, teaching and administrative quality. discipline, punctuality, regularity, popularity ability to carry on

with staff, qualities to tone up the schools to create healthy tradition and create interest among the students in extra curricular 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 th.e 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 candi" dates 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 tl)e Educational erts who assisted the Committee that he had iuggested "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 cuting 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 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 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 tum 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 classei. 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

of Mysore(') is generally regarded as the locus classicus on the A 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 co=on 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 ground~ 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 cl. ( 1). 'fl!e 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 benefidaries 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 dging so, care must be taken to see thaf 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. an; the principles

(1) [1963] Suppl. 1 S.C.R. 439.

,.. ..

~ ~; '-'

f ·

which have been enunciated in the decision of this coun in M. R. ffalaji'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 c( 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 ca5e 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 genera!ly 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 educationaily backward.

In the report submitted by the Backward Classes Committee to the ate 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 oor.ulation that rural India of a past generation has no relevance today. Facilities for education which were practiclly non-existent a generation ago are now available at the villagers door-step. In a fonner age it was only the fortunate few 'Yho .got. thi; ough Secondarv education because of paucity of

teachin~ mshtutions. but now the rural areas are studed with Secondary schools at comparatively easy distances.

Except in

wholly inacceable areas, ev<n 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 d'etre of the principle explained in Balaji's case which pointed out that , backward classes fo~ 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 distortecNnvestigations 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.(') Subba Rao, J (as he then was), speaking for the majority, discarded caste as the dominant criterion in the following words t 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 wi]] carry out the intention of the Constitution exoressed in the aforesaid Articles. It helps the really backward classes instead of promoting: the interests of individuals or grouos who, though they belong to a particular caste amajority whereof is socially and educationallv backward. really belong to a class which is sociallv and educationallv advanced. To illustrate_. take a cas-te in a State which is numerically

--~---

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._.,, H

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 ba!iinced

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 II mentions 23 social castes, and persons belom;- ing to these social castes are regarded as backward. Chaoter Ill _describes small cultivators as bkward. Chapter IV groups low paid pensioners as backward.

Chaoter V puts residents in an area adjoining the ceasefire line in the backward class.

Chapter VI specifies some areas in the State as "bad pockets~ and every.

person belonging .to that area is to be regarded as belonging to the

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 <; lass 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 hirn 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 grand-father did.

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 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, '!IS is well-known, it is the last refuge of the landless unskilled labourer who has no other source of employment in the rural ounity .. 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 hama!s 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.

Cll) Cook.

(20) Grass seller.

(21) Hawkers, pedlars.

(23) Load carriers. ( 29) Old garment sellers. ( 48) Watch repairers .. c ( 51) Grocers in rural areas .. ( 53) Mille-sellers in rural areas.

(58) Vegetable sellers in rural areas. ( 62) Drivers of Ton gas 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 agairi 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, thirik 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" iri respect of a person means .the mairi occupation of his living or late grand- _father and does not include casual occupation. This would mean F 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 iri 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 spe cial benefit merely on the ground that his grandfather was following a certain traditional occupation. It was against such misuse .

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 notby 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 II 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 Chanter 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.

Chanter 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. He may even be a non-cultivator provided he whol'y depends on land for . his livelihood. The cultivator is designated as a class on the basis ·

of. the recommendations made bv the Committee in Chapter XII 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 peoole with common traits and identifiable by som~ 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 thev hold land below a certain ceiling is sunnosed to make them a class. In such a case the relevance of social and educational backwardness takes a subordinate place. · Jn soine areas as in Kashmir valley the ceiling for a cultivator is 10 Kanals

A of irri2ated land. If a cultivator holds 10 Kanals of land or less he is to be regarded as backward i.e. to §_ay socially and educationaliy backward.

But if his own brother living in the same village owns half a Kanai 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 B of land he should be considered socially and educationally backward while his brother owning half a Kanai 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 dependant of a pen <: sioner is suppooed to belong to the b_ackward class if such pensioner had retired from certain Govt. posts mentioned in Appendix I 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. :rhis again is based upon the recommendation of the Committee which in Chapter II of the report says "Among others, representatives of D pensioners also called on the Committee. and explained the difficulties faced by them because of being in receipt of a meagre income in ihe 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 not been enhanced as is being done from time to time in the case of Govern- E ment 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 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 are about 90,000 Fand civil posts pensioners are about 15,000. It is diffic.ult 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 ex-servicemen of certain grades are pushed into an artifically created body. It may be that they belong to class IV or similar grade service of the State. But that G is not the test of their social and educational backwardness. In days when sources of employment were few, manv 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 ff 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, . 18-631Sup.CJ/73 .

also a Government servant, has the misfortune o[ retiring when holding a po>t 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 concernecJ 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 backwatd 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 !;()me 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 Comtitution instead of identifying socially and educatiol)a lly 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 II 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 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 thes,: Jrc:ts according to 1961 census was about three lakh<. The Co1nsJ:inee reports as follov.s :

"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 bi. cause 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 sandy and irrigation facilities being scanty and inadequate. Besides these, there are areas where due to nonavailability 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, \naccessibility, lack of material resources and the like the residents of these areas are living in almost primitive conditio11~ 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.

Simiiar 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 tl:e living conditions in these areas had inevitably lead the inhabitants of these areas living in economic and educational backward-

•nes~. 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 occasiona]]y. 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, verv much behind the rest of the State. We thus find that soecial 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 JO and 12 have been so framed that the advanta2e is likely to be misused by imposters. A person wanting the advanta!!e of reservation would be regarded as belonging to these areas if.liis father is or has been resident of the area for a period of not 11!9!1 than JO years in a period of 20 year< preceding the year in which the certificate of backwardness is obtained. The rules do nOj; 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. Anv tradl!r or Government servant from outside who is ?e&iding for about 10 years in these areas within 20 vears of the date when the vantal!e i< claimed would, be entitled to be regarded as belonl!Ulg to the backward class. In order that the benefit may f1;0 to the: residents of these areas, Government ought to frame rales

with adequate safeguards that only genuine residents will get the A advantage of wecial reservation and not outsiders. As the rules . stand, outsiders who, in the course of their trade or busines5

happened to live in these areas for l 0 years out o( past 20 years would be able to claim the benefit; This loophole must be plugged and tlll that 1s done, the production of a certificate from the Tehsildar as to the backwardness of any person would be of g 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 suggsetion 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 bacl..-ward classes be made for future vacancies as the.y occur after the backward class reservation rules are properly revised. Accordingly, the following directions are given as result of our findings in the three petitions :

( 1) All those Head Masters and Tehsil Education Officers

who have been confinned as such or promoted to yet G higher posts with effect from the date prior to the filing of the Writ Petition No. 107 /1965 (Tri/okl 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 E<luca- H tion 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

J. I'. PAlUMOO v. J, & K; STATE (Palekar, J.) 261

only test.

T)l.e 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 th~ teachers' performance and character.

(3) Pending selection as per (2) above, the following in

tcrim arrangement for filling the vacant posts of Head Masters and Tehsil Education Officers is directed :

(a) Those Head Masters and Tehsil Education Olli

cers 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 He11d Mum

and Tehsil Education Officers will be filled by those selected in 1971 interviews, provided that each one of those selected had obtained at least 503 arks from the Departmental Promoon Committee and 50% marks from the Expert.

As between them, seniority will be respected. ( c) U in spite of following (b) above, all the vacancies are not filled the remaining vacancies shall be filled by teachers in order of their senioritr.

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.

JANKI PRASAD PARIMOO & ORS. ETC. ETC

STATE OF JAMMU & KASHMIR & ORS

M. SIKRI, C.J.

A. N. RAY

D. G. PALEKAR

M. H. BEG

DWIVEDI, JJ.

Constitution of India

State of Jammu & Kashmir

[1967] 2 S.C.R. 265

Mak/Jan/al Maza

April 18, 1970

August 8 .• 1970

Art. 32

Art. 15(4)

Art. 16(4)

Art. 16( 4)

Art. 15(4)

Articles 15(4) and 16(4)

Balc.ji

Art. 15(4)

Articles 15

Chapter III of the Rules

Chapter V and VI of the Rules

Article 32

Constitution of India

A. K. Sen

Naunit Lal

I. N. Shroff

S. V. Gupte

C. Mathur

P. C. Bhartari

Bhuvanesh Kumari

M. C. Chagla

S. N. Prasad

E. C. Agarwala

Jagmohan Khanna

P ALEKAR

Article 32

State of J ammu & Kashmir

14th June 1956

Jammu

Triloki Nath Tikoo

Shambu Nath

Article 16

J ammu province

Article 16

December 15, 1966

High Court of Jammu & Kashmir

Article 16( 4)

Article 16

April 23, 1968

Triloki Nath Tikko

Article 16

February 23, 1971

Government of Jammu & Kashmir

J ammu & Kashmir Commission of Enquiry

P. B. Gajendragadkar

Jammu & Kashmir

J. N. Wazir

J ammu & Kashmir High Court

August 8, 1970

Kashmir

Article 16

Triloki Nath Tikoo

Makhanlal

Mar. 15, 1971

July 18, 1971

N. K. Dutt

Central Institute of Education, Delhi

Dutt

Articles 15

Article 15

Article 16(4)

Article 16

Article 15

Article 15

Shah

Art. 15

Art. 15

Parliament

M. R. ffalaji

India

Balaji

ate of Jammu & Kashmir

Article 15

Subba Rao

Sen

Articles 15(4) and 16(4)

Naik Havaldars

okl Nath Tikoo


RAMACHANDRAIAH ETC. v.

LAND ACQUISITION OFFICER, SAGAR

January 10, 1973 [J, M. SHl.LAT ANDY. V. CHANDRACHUD, JJ.]

Land acquisition-Lands under personal cultivation of o>vner t11fd rflnds under cu!tivacion of tenants-Principles of co1npensation.

The respondent acquired the lands of the appellants.

Some of th.e lands were cultivated by the appellants themselves and others by ter.ants.

As a result of the Mysore Ten"lncy Act, 1952, which was amended by Mysore Acts 16 of 1957, 24 of 1962 and 12 of 1963. and, the Mysore Tenant, (Temporary Protection From Eviction) Act, 1%1, the tenants, though they were inducted originally as annual tc; nants, they got as deemed 1"nants. a fixed and secured tenure for additional periods.

The respondent rtxed compensation at Rs. 600 per acre for tankfed la:ndo and Rs. 500 per acre for rain-fed lands.

On a reference under s. 18 of. the Land Acquisition Act, 1894, the compcnsatiori was :ncreascd to Rs. 2500 per acre for tankfed lands and Rs. 2000 for rain-kd lands. On appeal, the High Court fixed a uniform rate of compensation at. Rs. 1250 for all lands, whether tank-fed or rain-fed, and whether atf•cultivated or cultivated by tenants,

"' Qn the question whether the High Court followed a correct principle, ,,.. Court, in appeal,

HELD The matter should be remanded to the High Court for a E fresh calculation of th.e compensation.

(I) The High Court was in error in equating lands cultivated by die tenants and those under the personal cultivaton of the appellants and. applying to both a uniform measure.

The two kinds of lands Ouaht to have been separately treated a; nd even if the rent in the case of tenant occupied lnd was taken as a. measure for such Jand, that could not properly be the measure for arriving at the market value of the land under the appellants' personal cultivation, because, the net F return to the appellants from each of the two klnds of lands is bound to differ.

The annual rent paid by the tenant n1ay not he the correct or real inoome obtainable bv the appellants. the rent agfeed upon several years ago may not be the fair rent by reason of seven\} factors a:nd the lands themselves may not be equal in quality, situation or productivity. [265 C]

(2) In view Of the provisions of the Mysore Act. it should have been G asce-ttained whether the tenant'i h<.1d anv interest in the lnnd and whether they were entitled to any share in the con1pcnsution payable in respect of lands under their cultivation. subject to any har of limitation under s. 18 cf the Land Acquisition Act. lf the tenants are entitled to ttl"fY share of the compensation, it should be allocated to them. If this were to be done, the annual income of the land~ will have to he ascertained afresh froro the evidence on record 1.)r otherwise to arrive at the correct market value. [266 Fl II

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1353 (0 1355 of 1967.

RMHCHANIJRAL\H v. LANIJ ACQUISITION OFFICER (Site/al, J.) 26:1

Appeals by certificate from the judgment and Awan'. dated 15th September 1966 of the Mysore High Court at Bangalore in Misc. First Appeals Nos. 199 to 201 of 1963.

R. B. Datar, for the appellants.

M. Veerappa, for the respondent.

The Judgment of the Court was delivered by

SHELAT, J.

Thes~. three appeals, by certificate. are by three Khatedars, whose land.s were acquired for the submersion area of the Linganmakki reservoir ii; i Mysore State.

The areas so acquired were all wet lands and measured 29 acres and 3 7 guntas, 3.32 acres and 8.20 acres respectively. The Special Land Acquisition Officer classified these lands into rain-fed and tank-fed lands, i.e. one crop and two crop lands, and adopting the method of valuation of capitalising the annual rent paid to the appellants fixed Rs. 600 per acre for the tank-fed, i.e., perertially irrjgated wet lands, and Rs, 500 per acre for the rain-fed wet lands. He arrived at these figures on a finding that the average annual rent in respect of these lands was H pallas of paddy per acre which meant that the gross rent was Rs. 37.50 at the rate of Rs. 25 per pa1Ja. Deducting land revenue and bad debts he found that. the net annual income was Rs. 30 per acre. On a reference by the appel!ants under sec. 18 of the Land Acquisition Act, I 894, the District Judge increased the valuation to Rs. 2500 per acre for tank-fed lands and Rs. 2000 per acre for the rain-fed lands. The District Judge also adopted the method of valuation by capitalising the income by 20 years. But what he did was to take the whole of the net income arisin~ from the lands instead of capitalising only the rent payable to the appellants by the tenants of some of the lands.

In appeals filed by the Acquisition Officer against the awards by the District Judge, the High Court of Mysore reduced the compensation to Rs. 1250 oer ac're for alI the ]ands, irrespective of whether they wer.e tank-fed or rain-fed lands or whether they were self-cultivated or cultivated by tenants. This. the High Court did on the footinj! that the income from the land was represented by the rent paid bv the tenants iii resnect of some of the lands, that such rent on aii average came to 2J pallas of paddy and that at the rate of Rs. 25 per onlla. by capitalisin!! the rent by 20 years. the com1Jensation would come to Rs. 1250 an acre. The Hih

Court. in addition. awarded interest at 63 oer annum on the amount of compensation awarded by it. In modifving the District Judge's award and reducin!! the rate of comoensation-to Rs. 1250 an acre. the High Court rejected the measure adopted bv the nistrict Jud2e. vi: .. "that the genT (rent) nlu". the quantitv which the tenant would rtain fnr himself would be the net averng~ in

come of the land''.

According to the High Court, the District . Jud~ overlooked the fact that the tenant who get some income by cultivating the land did so because he and the members of his family had to expend labour thereon, and that therefore, both the t-xpenses of cultivation as also the value of such labour expended L)' the tenant ought to be taken into consideration. The High Cou_t held :

"In assessing compensation for lands acquired, on the basis of capitalisation of annual income the usual method adopted is to capitalise the annual rent on the basis of certain number of years purchase."

The High Court also rejected the argument that the land measurc ing 7 acres 10 guntas, which is the subject-matter of Civil Appeal No. 1354 of 1967 and part of the lands which are the subjectmatter of C.A. No. 1353 of 1957 were not cultivated by any tenant and were in fact under the Khatedars' personal cultivation and that therefore compensation in regard to them could not be fixed by capitalising the annual rent only. The High Court held D that if the measure of capitalised annual rent "is good in respect "" of the lands leased, it is equally good in respect of the lands personally cultivated by the claimants". On this basis, the High Court allowed the Land Acquisition Officer's appeals, reduced the compensation to Rs. 1250 per acre in respect of all the lands, irrespective of whether they were under tenants' cultivation or under the pernonal cultivation of the claimants.

The question raised before us is whether the High Court followed a correct principle while awarding an uniform rate of comoensation for all. the acquired lands.

It may be that resort , may be had to fair rent as a true measure of income derived from a particular land bv its proprietor for fixing the compensation bv multiolving it by 20 years as has been done here by the High Court where no other method of valuation is oossible. But where the acquired land has been under the oersonal cultivation of a claimant. the annual rent obtained by him from a tenant from another land mav not be the correct or real income obtainable by the claimant. The rent of the land under a tenant's cultivation may have been agreed uoon several vears ago or mav not otherwise be the fair rent bv reason of several factors. Ouite apart from that, the two lands mav not be equal in oualitv, situation and productivitv and therefore the rent obtained for one cannot be the same for the other. Obviouslv. therefore. the annual rent obtained bv a claimAnt from his tenant for one acouired niece Of land cannot be annlierl as " measure for another niece of land which is nersonallv cultivated bv the claimant. The net return to the claimant from each of the two land< is bound to differ. Ordinarilv, rent payable by a tenant would he fi11ed after calculating apprmd-

RAMACHANDRAIAH v. LAND ACQUISITION OFFICER (She/at, J.) 265

mately the gross income less the tenant's costs of cultivation, cost of labour expended by him and a certain amount of retum for all the labour thrown in by him. In the case of land personally cultivated by a claimant, on the other .hand, the income derived by such a claimant is arrived at by taking the gross income and deducting therefrom his expenses of cultivation, other expenses and outgoings. The net income thu~ arrived at is usually multiplied by 20 years purchase and the amount so calculated would be considered as equivalent to market value. In our view, the High Court was in error in equating the lands cultivated by the tenants and those under the personal cultivation of the claimants and applying to both a uniform measure, viz., the annual rent obtained from the former for fixing compensation. The two kinds of lands ought to have been separately treated and even if the rent in the cases of tenant-occupied land was taken as a measure for such land, that could not properly be the measure for arriving at the market value of the land under the claimant's personal cultivation.

Even in respect of lands cultivated by tenants, no notices appear to have been issued to them either by the Special Acquisition Officer or by District Judge though some of them did appear as witnesses for the claimants for deposing to the income of the land. Presumably, no such notices were issued to them on the ground that they were annual tenants and had, therefore, no alienable interest in the lands cultivated by them.

We do not know whether by the expression 'ammal tenants' we meant that their tenancy was for one year only and would lapse on the expiry of the year. Even if it were so, by the time the notifications under secs. 4 and 6 of the Act were issued, (in April and August 1960), the Mysore Tenancy Act XIII of 1952 had come into force. Sec. 4 of that Act provided that a person lawfully cultivating any land belonging to another person shall be deemed. to be a tenant if the conditions there set out are satisfied. Under s. 5 (1), there can be no .tenancy for less than five years and all tenancies in force' on the date of the commencement of the Act shall be deemed to be tenancies for a further period of five years from such date of the commencement of the Act. Under sub-s. 2 of s. 5. no tenancy is terminable before exoiry of the oeriod of five years exceot on the grounds set out in s. 15, e.g., default by such a tenant in paying rent or the fair rent fixed under the Act as the case may be.

The Mysore Tenancy Act, 13 of 1952 was amended first by Mysore Act, 16 of 1957, and again by Mvsore Ats 24 of 1962 and 12 of 1963. Sec. 4 of Act 16 of 1957 provided that every tenancv in rei; nect of which the oeriod of five veal'lO snecified in s.

S of Act 13 of 1952 was due to exoire during 1957 shall be deemed to be a tenancy for a further period of one year rom the date on which the said period of five years was due to eptre. Sub-

'" /

• I sec. 3 of sec. 4 further provided that notwithstanding anything contained in any Jaw, notices given before the 1 lth day of March, 1957 by landlords to tenants terminating their tenancies at the expiry of the said period of five years referred to in sub-sec. 1 on the ground of such expiry or on the ground that the landlord required the land for his personal cultivation shall be deemed to have been cancelled and shall have no effect and all applications made by landlords for possession of lands in pursuance of rent notices shall on the 1 lth March, 1957 stand dismissed. In 1961, the Mysore Legislature passed tlie Mysore Tenants (Temporary Protection From Eviction) Act, 37 of 1961.

The Act was to remain in force till March 31, 1962 or such other date not later than one year after that date as the State Government may by notification specify.

Sec. 3 of the Act provided that notwithstanding any thing contained in any law or agreement,· decree or order of a civil or revenue court or a tribunal, no tenant shall be evicted from the land held by him as a tenant during the period that the Act remained in force.

Sec. 4 of-the Act stayed durin)! the operation of the Act al] suits and proceedings in execution of decree or orders and other proceedings for the eviction of tenants from the lands held by them as such. The result of these provisions would appear to be that though the tenants of the .lands in these appeals were inducted thereon originally as annual tenants, they got a fixed and .secured tenure for additional periods and as deemed tenants they ceased to be persons entitled to possession only for one year as provided by their original leases. The point, therefore, is whether they acquired as a result of these provisions any share in the compensation.

In view of these provisions the Special Land .Acquisition Officer and the District Judge ought to have ascertained (which neither of them did) whether the tenants had any interest in the land and whether. they were entitled to any share in the compensation payable in respect of lands under their cultivation. In the absence cf the tenants before us, we find it difficult to go into these ouestions. Nonetheless, we do feel that in fairness to the tenants (if thev are sti11 on the land) their interests ought to have been ascertained and if thev are entitled in Jaw to any share. compensation according to the mai'l<et value of the land should be ascertained afresh and their share. -if allowable to them. should be allocated to them. If this were to be done. the annual income of the lands in auestion will have to be ascertained afresh from the evidence on record or otherwise and the net total income after deductinl! the costs of cultivation an<l other outgoing ascertained in or<ler to arrive at the correct market value.

Tf the nosition of the tenants as a result of the oneration of the Tenancv Act has. changed so as to make them entitle<l to a part of the comnensation, that also will require to be ascertained. This is, of-course, sub-

RAMACHANDRAIAH I', LAND ACQLllSITION OFFICER (She/at, I.) 267

ject to the bar ot limitation under s. 18 of the Act, for, it would prima facie appear that the tenants by appearing as witne; scs for the claimants knew of the acquisition and the award and yet had made no application to be made parties to the reference before the District Judge.

Even if it is found *at the tenants are not entitled to. any share in the compensation, the lands under tenant's cultivation and those personally cultivated by the claimants cannot be valued on the same footing for the grounds sot out earlier.

A fresh calculation of compensation in any event of brds under the claimants' cultivation is called for on the principle.; set out hereinabove.

We, therefore, allow the appeals, set aside the judgment of the High Court and remand these appeals to the High Court for a fresh calculation of compensation in the light of the obervutions hereinabove made and in accordance with law. If for th1t purpose it may become necessary in the opinion of the High Court for fresh evidence to be led, parties may be given libe.rty to adduce

uch further evidence.

Costs of these appeals will abide by the result in the High Court.

V.P.S.

Appeals allowed.

2-l796SuoCI ;; J

RAMACHANDRAIAH ETC

LAND ACQUISITION OFFICER, SAGAR

January 10, 1973

M. SHl.LAT ANDY. V. CHANDRACHUD, JJ.

s. 18

Land Acquisition Act, 1894

s. 18

Mysore High Court at Bangalore

R. B. Datar

M. Veerappa

SHELAT

Mysore State

sec. 18

High Court of Mysore

Tenancy Act XIII of 1952

Sec. 4

s. 5

s. 2

s. 5

s. 15

Sec. 4

sec. 3

sec. 4

sec. 1

1 lth March, 1957

March 31, 1962

Sec. 3

Sec. 4

s. 18