PETITIONER:
TRILOKI NATH TIKU & ANR.
Vs.
RESPONDENT:
STATE OF JAMMU & KASHMIR & ORS.
DATE OF JUDGMENT:
15/12/1966
BENCH:
RAO, K. SUBBA (CJ)
BENCH:
RAO, K. SUBBA (CJ)
SHAH, J.C.
SIKRI, S.M.
RAMASWAMI, V.
VAIDYIALINGAM, C.A.
CITATION:
1967 AIR 1283 1967 SCR (2) 265
CITATOR INFO :
RF 1971 SC2206 (4)
R 1972 SC1375 (75,87)
RF 1973 SC 930 (4)
E&R 1985 SC1495 (12,49)
ACT:
Constitution of India, Art. 16(4)-Reservation in
favour of backward classes-Requirements of Article-Backward
class, what is.
HEADNOTE:
The petitioners were school teachers in the service of
the State of Jammu & Kashmir. Persons below them in the
seniority list were promoted to the higher grade because the
State Government in making the promotions gave- 50% of the
higher posts to Muslims, 60% of the remain50% to Jammu
Hindus and the rest to Kashmiri Pandits and Sikhs. its
method of reservation was justified under Art. 16 of the
Constitution an the ground that Muslims all over the State
and Hindus in Jammu were backward communities. The
petitioners were Kashmiri Pandits. They came to this Court
under Art. 32.
HELD : The predominant concept underlying Art. 16 is
equality of opportunity in the matter of employment; and
without detriment to that concept, the State is enabled to
make reservations in favour of backward classes to give a
practical content to the concept of equality. It is impli-
cit in the article- that the doctrine of equality of
opportunity shall-be reconciled with that of reservation in
favour of backward classes in such a way that the latter
while serving the cause of backward classes shall not
unreasonably encroach upon the field of equality. [268 G-H]
The power under cl. 4 of Art. 16 can only be exercised in
favour of backward classes of citizens. While the State has
necessarily to ascertain whether a particular class of
citizens are backward or not, having regard to acceptable
criteria its is not the final word on the question, it
is a justifiable issue. The power under cl. (4) is also
conditioned by the fact that in regard any backward classes
of citizens there is no adequate representation in the
services of the State, [269 A-B]
A class cannot be accepted as backward merely because it is
not adequately represented in the services under the State.
Such a contention if accepted would exclude the really
backward classes from the benefit of the provision and
confer the benefit only on a class of citizens who, though
rich and cultured have taken to other avocation in life [270
B-C]
[On the material before it the Court found it impossible to
say whether the Muslims of the entire State of Jammu and
Kashmir and the Hindus of Jammu Province were backward
communities within the meaning of Art. 16. The High Court
was therefore asked to collect the relevant material and to
sent a report.] [270 E-G]
M. R. Balaji v. State of Mysore, [1963] Supp. 1 S.C.R. 439
and R. Chitralekha v. State of Mysore, [1964] 6 S.C.R.
368, referred to.
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 107 of 1965.
Writ Petition under Art. 32 of the Constitution of India for
enforcement of fundamental rights.
Naunit Lal and Vineet Kumar for the petitioners.
266
S. V. Gupte, Solicitor-General of India, Raja Jaswant
Singh, Advocate-General for the State of Jammu and Kashmir,
and R. H. Dhebar, for respondents Nos. 1 and 2.
The Judgment of the Court was delivered by
Subba Rao, C,J. This petition under Art. 32 of the
Constitution of India has been filed by two teachers for the
issue of an appropriate writ to quash the orders of
promotion of respondents 3 to 83 and to direct the State of
Jammu & Kashmir, the 1st respondent, and the Director of
Education, Jammu & Kashmir State, Srinagar, the 2nd
respondent, to promote them to the cadre of gazetted
teachers with retrospective effect.
The facts are simple. The 1st petitioner entered government
service of the erstwhile State of Jammu & Kashmir on May 16,
1943, as a teacher in the Government School, Trehgam. He is
an M.A., B.T., and is at present working as a teacher in the
Government Higher Secondary School, Sopore. The 2nd
petitioner was likewise appointed as a teacher on February
26, 1952, in the Government Middle School, Nigam, Kashmir.
He is a B.A., B.T., and is at present working as a teacher
in the Government High School, Batamallo. In the year 1957,
the 1st respondent prepared a seniority list of teachers of
grade Rs. 80-8-200. From time to time the 1st respondent
prepared the seniority lists of teachers of the said grade
and the last of them was prepared in 1961. Therein the 1st
petitioner was given the serial No. 104, and the 2nd peti-
tioner was given the serial No. 140. Whenever there were
vacancies in the higher grade of Rs. 250-25-350-EB-30-500,
which is a gazetted cadre, they were filled by promotion of
teachers in the lower grade comprised in the said seniority
list. It is alleged that in promoting teachers to the
gazetted cadre, respondents 1 and 2 adopted the following
basis :
(1) 50 % of the gazetted posts to be filled
by promotion are given to Muslims;
(2) about 60% of the remaining 50% of the
posts are filled by Jamvi Hindus (Hindus from
Jammu Province of the State, majority of whom
are Dogras); and
(3) the remaining 40% of the 50% of the
posts are given to Kashmiri Pandits; some time
one or two posts are given to Sikhs out of
turn.
To state it differently, out of every 100 gazetted posts, 50
went to Muslims of the entire State of Jammu, , & Kashmir,
30 went to Hindus from the Province of Jammu, and the
remaining 20 went
267
to Kashmiri Pandits, out of which one or two went to Sikhs.
The, said basis is not disclosed in any order made by the
State, but is arrived at on the footing of recruitments by
promotion made to the gazetted posts of teachers from time
to time. It is also averred that promotions are made not on
the basis of merit and seniority, but purely on the ground
of religion, caste and place of birth. It is further
alleged that though the two petitioners are seniors as per
the aforesaid seniority list, they have been superseded by
respondents 3 to 83 only on the ground that the petitioners
happen to be Kashmiri Pandits and respondents 3 to 83 are
either Muslims or Jammu Hindus.
In the counter-affidavit the State does not deny the fact
that promotions to gazetted posts are made in the manner
indicated by the petitioners but says that 50 %, of the
posts were filled by Muslims of the entire State of Jammu &
Kashmir and 40% of them were filled by Jammu citizens. It
proceeds to support this reservation on the ground that
Muslims of the entire State and the Hindus of Jammu Province
constituted “backward classes”‘ for the purpose of
employment and that it is done in order to reduce gradually
the imbalance between the backward classes and the
progressive ones..
It may be noticed at the outset that though the factual
basis for the promotions to the gazetted posts is admitted,
no order made, by the Government is placed before us either
specifying the backward classes or the criteria for
backwardness or fixing a proportion between backward classes
and others in the matter of promotion. There is also no
acceptable material from which we can gather the relevant
facts, namely, the latest census figures disclosing the
strength of the population in the Provinces of Jammu and
Kashmir, the population figures of the various. religious
groups, the break-up figures of the different communities of
the two major religious groups, the state of their
backwardness-social’, economic and cultural-the criteria
adopted by the State for ascertaining the backwardness of
different groups and other relevant material. What is
placed before us is a general assertion, unsupported by any
acceptable data, that all the Muslims of both the Provinces
of the State are backward and the majority of the Hindus of
the Jammu Province are likewise backward. During the course
of the argument, two statements showing the population
figures communitywise (1961 census) and the population
figures community-wise (1941 census) with literacy figures
and their percentage are placed before us. Apart from the
fact that the petitioners have no opportunity to test the
correctness of the figures, the 1941 census figures may not
afford any workable guide, as a quarter of a century has
passed by since then and there must have been revolutionary
changes during this period.
268
The law on the subject is well settled. The relevant
provision of the Constitution is Art. 16, which reads
(1) There shall be equality of opportunity
for all citizens in matters relating to
employment or appointment to any office under
the State.
(2) No citizen shall, on grounds only of
religion, race, caste, sex, descent, place of
birth, residence or any of them be ineligible
for, or discriminated against in respect of,
any employment or office under the State.
(3) Nothing in this article shall prevent
Parliament from making any law prescribing, in
regard to a class or classes of employment or
appointment to an office under the Government
of, or any local or other authority within, a
State or Union territory, any requirement as
to residence within that State or Union
territory prior to such employment or
appointment.
(4) Nothing in this article shall prevent
the State from making any provision for the
reservation of appointments or posts 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.
(Clauses (1) and (2) of Art. 16 guarantee equality of
opportunity to all citizens in matters relating to
employment or appointment to any office under the State.
But if the said clauses of the article are literally
enforced, instead of giving equality of opportunity to all
citizens, it will lead to glaring inequalities. In a
country where there are different strata of society ranging
from highly sophisticated to lowly backward, the concept of
equality will drive the latter to the wall. Their condition
would become worse than what it is. So, in order to give a
real opportunity to them to compete with the better placed
people, cls. (3) and (4) are introduced in the article.
While clause (2) prohibits the place of birth or residence
as the sole criterion in the matter of employment, clause
(3) permits residential qualification in the State or Union
territory. While clauses (1) and (2) guarantee equal
opportunity to all citizens, clause (4) enables the State to
make a provision for reservation of appointments or posts in
favour of any backward classes of citizens. The predominant
concept underlying the provision is equality of opportunity
in the matter of employment; and, without detriment to the
said concept, the State is enabled to make reservations in
favour of backwarded classes to give a practical content to
the concept of equality. It is implicit in the article that
the doctrine of equality of opportunity shall be reconciled
with that of reservation in favour of backward classes in
such a way that the latter while serving the cause of
backward classes shall not unreasonably
269
the power conferred upon the State under clause (4) can only
be exercised in favour of backward classes of citizens;.
that is to say, whether a particular class of citizens are
backward is. an objective factor to be determined by the
State. While the State has necessarily to ascertain whether
a particular class of citizens are backward or not, having
regard to acceptable criteria, it is not the final word on
the question; it is a justiciable issue. While ordinarily a
court may accept the decision of the State in that regard,
it is open to be canvassed if that decision is based on
irrelevant considerations. The power under clause (4) is
also conditioned by the fact that in regard to any backward
classes of citizens there is. no adequate representation in
the services under the State. The opinion of the State in
this regard may ordinarily be accepted as final, except when
it is established that there is an abuse of power. A fair
reading of Art. 16, therefore, discloses the following in-
gredients for the applicability of the provision : (i) there
shall be equality of opportunity for all citizens in the
matter of employment; (ii) there can be reservations of
appointments or posts in favour of backward classes; and
(iii) the backward classes are not adequately represented in
the services under the State.
Decided cases have laid down certain tests for ascertaining
whether a particular class is a backward class or not.
Though the decision in M. R. Balaji v. State of Mysore(1)
turned upon. Art. 15(4) of the Constitution, the principles
laid down therein, will equally apply to the facts of the
present case. There this Court held that backwardness under
Art. 15(4) must be social and political and that social
backwardness was in the ultimate analysis the result of
poverty to a very large extent. In the context of admission
to educational institutions this Court held that speaking.
generally in a broad way the provision for reservation
should be less than 50% and that actual percentage should
depend upon the prevailing circumstances in each case.
The decision in R. Chitralekha v. State of Mysore(2) also
turned upon the interpretation of, Art. 15(4) of the
Constitution. In that case the Government of Mysore laid
down that classification of socially and educationally
backward classes should be made on the following basis : (i)
economic conditions, and (ii) occupation. But the order of
the Government did not take into consideration the caste of
the applicant as one of the criteria for backwardness. This
Court pointed out that, though the caste of a group of citi-
zens might be a relevant circumstance in ascertaining their
social backwardness, it could not be the sole or the
dominant test in that behalf. This Court accepted the
criteria adopted by the Mysore Government for ascertaining
the backwardness of a class. The.
(1) [1963] Supp. I S. C.R. 439.
(2) [1964] 6 S.C.R. 368..
270
argument advanced on behalf of the State, namely, that the
difference in the phraseology used in Art. 15(4) and Art.
16(4), namely socially and educationally backward classes in
the former and backward. classes ;in the latter, leads to
the inevitable conclusion that “backward classes” of
citizens in Art. 16(4) are only such classes of citizens who
are not adequately represented in the services of the State
does not appeal to us. The sole test of backwardness under
Art. 16(4), the argument proceeds, is the inadequacy of
representation in the services under the State; that is to
say, however advanced a particular class of citizens,
socially and educationally, may be, if that class is not
adequately represented in the services under the State, it
is a backward class. This contention, if accepted, would
exclude the really backward classes from the benefit of the
provision and confer the benefit only on a class of citizens
who, though rich and cultured, have taken to other avoca-
tions of life. It is, therefore, necessary to satisfy two
conditions to attract clause (4) of Art. 16, namely, (i) a
class of citizens is backward, i.e., socially and
educationally, in the sense explained in Balaji’s case(1);
and (ii) the said class is not adequately represented in the
services under the State.
The question therefore is whether Mohammedans of the entire
State of Jammu & Kashmir and the Hindus of the Jammu
Province are backward in the sense explained above and also
whether ,they are not adequately represented in the services
of the State. Secondly, if they are backward, whether the
percentages of reservations provided for them in the
gazetted cadre of teachers are reasonable having regard to
the employment opportunities ‘in that cadre of service to
the general public. We find it very difficult to come to
one conclusion or other on the material placed before us. It
is, therefore, necessary to call for a report before we can
finally dispose of the writ petition. We direct the High
Court of Jammu & Kashmir either directly or through a
District Court to .gather the necessary material, such as,
the total population of the entire State, the break-up
figures of the two provinces, the strength of different
communities and the extent of their social and economic
backwardness and the criteria applied by the State in that
regard. ‘The High Court is directed to submit the report
within two months from the date of receipt of the record.
The parties will have liberty to place necessary material,
oral and documentary, before the High Court or the District
Court, as the case may be. Costs will abide the result.
G. C. Report called for.
(1) [1963] Supp. 1 S.C.R. 439.
271