LexMAKHANLAL WAZA & ORS. versus STATE OF JAMMU & KASHMIR & ORS.
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832 MAKHANLAL WAZA & ORS. v. STATE OF JAMMU & KASHMIR & ORS. Februaiy 23, 1971 [S. M. SJKRI, C.J., G. K. MITTER, K. S. HEGDE, A. N. GROVER AND P. JAGANMOHAN REDDY, JJ.J Constitution of India, 1950, Ar~ .. 16--Janunu & Kashmir Civil Service (Classification Control & Appeals) Rules 1956, r. · 25-Promotion of Teachers to the Gazetted cadre on the basis of "con1munal po/icy"- Communal policy struck down by courts as unconstitutional-Thereafter Govenment reverting f(!achers to non~gazetted grade but giving sanze emo~ luments as in gazetted grade under different nomenclature-Also promot~ ing those not parties before the COUl'o to gazetted grade Oil the basis ofi communal po/icy-Promotions violative of Art. 16--Judgmen·t-Law dec- lared by court binding on State Governn1ent 1vith respect to those not parties before Court. Teachers and other officers of the Education Department of the State of J ammu & Kashmir were govc'rned by the J ammu and Kashmir Civil Services (Classification, Control & Appeals) Rules, 1956. According to r. 25 promotions to a service or class or to a sel~ction category or to a grade in such se'rvice or class \Vere to -be n1adc on grounds of merit and ability. Rule 19 provided for reservations to be made in favour of any backward class which in the opinion of the Government was not adeqnately represented in the services. This rule was abrogated in 1958. But in p'romoting teachers to the gazetted cadre respondents I and 2 adopted the following basis : (i) 50% of the vacancies were filled from among the Muslims of the entire State; (ii) 40% out of the remaining 5()% were filled by Jamvi Hindus of the province of Jammu and (iii) the remaining 10% were given to others including Kashmiri Pandits. This was purported to be done on the ground that the Muslims of the entire state and the Hindus of Jammu Province constituted "back\Vard class". In December 1965. the present petitioners 2 and 4 filed a writ petition in this Court, and in Triloki Nath & Anr. v. State of Jammu & Kashmir, (1969] I S.C.R. 103, this Court held that in effect the basis of promotion was not of reservation of some posts; it was a sche1ne of distribution of all the posts community-wise and such distribution was contrary to ejie constitutional guarantee under Art. 16(1) & (2) and \\as not saved by cl. (4). The promotions granted to respondents 3· to 83 in that petition were declared Yoid, but it \Vas left open to the State to devise a scheme consistent with the constitutional guarantee for reservation of appointments to posts or promotions in favour of any backward class of citizens. No such scheme \Vas devised. Instead those teachers 'vho were respondents in the previous \\Tit petition and \\'hose promotions became illegal \Vere ordered to be adjusted in a non-gazetted cadre. They \Vere "allowed to work against 1he posts they v.;e~re holding prior to the reversion" on temporary basis. A new nomenclature was evolved for the post of 'Head Masters'; they were called 'Teachers-in-charge'. They were to get the same salary which they were getting when they were· in the gazetted cadre. Ordinarily such a teacher could not have been appointed to that post being far junior to the petitioners according to the seniority list of the non-gazetted cadre to which he and. the petitioners belonged. Again, the other respondent- teachers who did not figure in the ea'rlier writ petition were all promoted A B ·- :i • ~ c 'ti)li ~ ,., D E F G H A B c D MAKHANLAL v. J. & K. STATE (Grover, 1.) 833 to the gazetted cadre prior and subsequent'to the decision in Triloki Nath's case on the basis of the communal policy. · The present ~tion was filed challenging the promotion of all the respondent-teachers as illegal and un- constitutional. Allowing the petition, HELD : (i) Respondents 38 to 107 who were parties to the previous petition, were reverted to the non-gazetted grade but they were still re- tained in the posts which they were holding when they had been pro- moted in gazetted grade although in some cases the nomenclature was changed from 'Headmaster' to 'teacher-in-charge'. In the absence of any rules lawfully promulgated for employment of backward classes promo-_ tions could be made only in accordance with r. 25 and there was absolute non-compliance with the provisions of that rule. [839 CJ (ii) The promotions of the respondents who were not parties to the previous petition were b
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