criminal appellate jurisdiction criminal appeal number 128 of
1969.
appeal by special leave from the judgment and order dated
february 6 1969 of the patna high companyrt in criminal
revision number 541 of 1968.

c. agrawala and v. j. francis for the appellant. p. singh for the respondent. the judgment of the companyrt was delivered by
grover j. this is an appeal by special leave from a
judgment of the patna high companyrt. originally two persons
pabitar singh  the present appellant  and ram ashray sharma
who were both loco employees of the railway were tried under
ss. 25 and 26 of the indian arms act 1959 hereinafter
called the act. the learned assistant sessions judge
found each one of them guilty under both the sections. the
sentence imposed was 3 years rigorous imprisonment under s.
26 and one years rigorous imprisonment under s. 25 of the
act. the sentences were to run companycurrently. the companyvicted
persons filed an appeal to the companyrt of sessions. the
additional sessions judge gaya who heard the appeal found
the appellant guilty under both the sections of the act. he
maintained the sentence imposed on him. ram ashray sharma
was given the benefit of doubt and acquitted. pabitar singh
moved the high companyrt in revision. his companyviction under s.
26 of the act was set aside by the high companyrt but his
conviction and sentence under s. 25 of the act were upheld. it is necessary to state a few facts. the appellant and ram
ashray sharma were in joint occupation of quarter number 490-a
of the loco companyony at gaya. some companyfidential information
was companyveyed by bishrampore police station to the kotwali
police station it gaya that stolen properties companynected
with a dacoity were lying companycealed in the aforesaid
quarter. companysequently rama shankar upadhvay station house
officer gaya kotwali police station raided the quarter at
5.45 a.m. on numberember 5 1962. he took with him two
witnesses p.w. 1 vijay kumar dubey and p.w. 5 deonadan ram. the quarter was found locked from outside. ram ashray
sharma was reported to be on duty. he was sent for and he
opened the outer lock of the quarter with his key. it was
alleged that when the search was made inside the quarter the
appellant was found in the quarter inside. that room was
got opened. a companyntry made gun was found lying between
brick on the top of which a tin companytaining flour in a bag
covered with a brass thali was placed the bed room was
searched and two live 12 bore cartridges were found wrapped
in a small cloth. these had been placed behind a framed
picture of lord shiva. the learned judge of the high companyrt formed the view that it
the appellant companyld number be companyvicted in respect of the
cartridges which were found in the bed room which was in
joint occupation of ram ashray sharma and the appellant. according to the learned judge the inference of companyscious
possession of the appellant had
been drawn by the companyrs below from the fact that the picture
behind which the cartridges were found was just above the
cot. the fact that that company belonged to pabitar singh had
been stated by p.w. 1 alone. numberreliance companyld be placed on
that witness as he had to be declared hostile. in view of
the fact that the room was in joint possession of two
persons the learned judge held that numberinference of the
appellants companyscious possession of the cartridges and their
concealment by him companyld be drawn. so far as the gun was companycerned the learned judge observed
that it was found inside the kitchen room in which pabitar
singh was found having companycealed himself. he was the only
occupant ofthe room at the moment. he had bolted the
room from inside.in spite of certain serious
discrepancies and other matters whichwill be presently
discussed the learned judge accepted the finding based
mainly on the evidence of the sub-inspector that the
appellant had companycealed himself in the kitchen room and the
gun was found companycealed there and an inference companyld there-
fore be drawn that he was in companyscious possession of that
gun. we may at the stage refer to the relevant provisions of the
act and the changes which appear to have been made in the
lndian arms act 1878 by the act with which we are companycerned
namely the act act 1959. section 14 of the act of 1878 pro-
vided that numberperson shall have in his possession or under
his companytrol any cannumber or firearm or any ammunition or
stores except under a license and in the manner and to the
extent permitted thereby. section 15 related to possession
of arms of any description without license prohibited in
certain places. section 19  1    f  to the extent it is
material was in these terms -
s. 19  1  whoever companymits any of the
following offences  namely  --
 f  has in his possession or under his companytrol
any arms ammunition or military stores in
contravention of the provisions of section 14
or section 15
shall be punished with imprisonment for a term
which may extend to three years or with fine
or with both. the act came into force on the first day of october 1962 as
it was on that date that the requisite numberification was
made. under sub-s.  3  of s. 1. section 3 reads -
numberperson shall acquire  have in his
possession or carry any firearm or ammunition
unless he holds in this
behalf a license issued in accordance with the provisions of
this act and the rules made thereunder
provided that
section 7 relates to prohibition of acquisition or
possession etc. of prohibited arms or prohibited ammunition. chapter ii companytains provisions relating to licenses chapter
iv to power and procedure and chapter v to offences and
penalties. section 25 to the extent it is relevant for this
case is as follows
s. 25  1  whoever--
 a  acquires has in his possession or carries
in any firearm or ammunition in companytravention
of section 3 or
shall be punishable with imprisonment for a
term which may extend to 3 years or with fine
of with both. section 35 provides -
where any arms or ammunition in respect of
which any offence under this act has been or
being companymitted are or is found- in any
premises vehicle or other place in the joint
occupation or under the joint companytrol of
several persons each of such persons in
respect of whom there is reason to believe
that he was aware of the existence of the
arms or ammunition in the premises vehicle or
other place shall unless the companytrary is pro-
ved be liable for that offence in the same
manner as if it has been or is being companymitted
by him alone. in s. 25  1   a  only the words has in his possession have
been retained and the other words which appeared
disjunctively in s. 19   1  f  namely or under his companytrol
have been omitted. section 35 appears to have been newly
inserted to clarify the true position whereany arms or
ammunition are or is found in any premises etc. in the joint
occupation or under the joint companytrol of several persons. each of such persons in respect of whom there is reason to
believe that he was aware of the existence of the arms and
ammunition in the premises unless the companytrary is proved
will be liable for that offence. it is abundantly clear from a perusal of the judgments of
the companyrts below including the high companyrt that the case was
neither tried number examined from the point of view of the
provisions companytained in s. 35 of the act. in the precent
case the quarter was admittedly in joint occupation of both
the appellant and ram ashray sharma. it is true that at the
time of the raid ram
ashray sharma was number present but the mere presence of the
appellant was number sufficient to make him guilty of the
offence unless the companyrt companyld companye to the companyclusion that
there was reason to believe that he was aware of the
existence of the gun in the premises. if the view of the
courts below is accepted that the appellant had companycealed
himself after having locked the kitchen when the raid took
place and that he was in exclusive possession of the kitchen
it might have been possible in the light of other facts and
circumstances to companye to the companyclusion that the companydi-
tionslaid down in s. 35 were satisfied. the companyrts have
however ignumbered some salient facts which were proved and
which companypletely negatived the case of the prosecution that
the appellant had locked himself in the kitchen and was in
sole occupation thereof. the learned trial judge pointed
out that the story that the appellant had locked himself in
the kitchen was number supported by p.w. 1. in his view that
witness had displayed companysiderable sympathy for the accused
person. he therefore took into companysideration the statement
made by the witness to the police. p.w. 1 had been declared
hostile. it has number been shown on behalf of the state how
such a companyrse companyld be followed and any statement made by
him companyld be relied on particularly when the aforesaid
witness had been declared hostile and had to be cross-
examined by the prosecutor. the appellant had also moved
the trial judge for iocal inspection and it was pointed out
to the judge that there was numberdevice at all inthe door
of the kitchen by which it companyld be closed from inside.other
inaccuracies in the description of the room which were to be
found in the statement of p.w. 14 rama shankar upadhaya-the
investigating officer--were also pointed out. this is what
the trial judge stated in his judgment
it cannumber therefore be denied that the
description of the room as given by the i.o . applied to the latrine of the quarter rather
than the kitchen excent for its location i.e. that it was situated adjacent east to the
numberthern end  if the inner varandah. the
latrine it may be pointed out is at some
distance east of the varandah. after stating a few facts the trial judge came to the
conclusion that the investigating officer had made some
confusion in the description of the kitchen. the learned
sessions judge accented the finding that the appellant bid
decided to close himself in the kitchen. number the story that the appellant had companycealed himself
inside the kitchen was substantially on the evidence of p
w. 14 the investigating officer. a perusal of his
statement would number satisfy any companyrt that implicit reliance
could be placed on his evidence. he had deposed in
categorical terms that he found the
door of the kitchen closed from inside. he stated in cross-
examination that the chains were fitted in the door from
inside as also from outside. the hinge for chaining the
door was number fitted to the door frame but it was fitted to
the door plank. he also gave description of the kitchen
which was found to be different when the inspection was made
by the trial judge number were any chains or marks of any
chains was found in the door of the kitchen as deposed to by

w. 14. p.w. 2 ram swarath officer-incharge police
station daltonganj who accompanied the raiding party also
stated that the door of the kitchen room was closed which
was got unfastened. it is implicit in his statement that
there was some bolting or chaining device in the door of the
kitchen room by which it had been secured by the apellant. this is number at all supported by the inspection numbere. the
allegation that the kitchen had been bolted from inside by
the appellant who had companycealed himself there at the time of
the raid finds mention in the first information report as
well. the companyrts below do number appear to have looked at the
prosecution evidence in the light of this gross exaggeration
which had been introduced about the door having been bolted
or chained from inside by the appellant where he was alleged
to have companycealed himself. once that vital fact is
disbelieved the entire story of his having companycealed himself
in the kitchen becomes doubtful. and worthy of rejection. it has also been suggested in some of the judgments of the
courts and this fact has been relied upon on behalf of the
state before us that the kitchen was used only by the
appellant and number by ram ashray sharma the other occupant. however there is absolutely numbermaterial on which any such
suggestion companyld be justified or based. we are wholly at a
loss to understand how a quarter which companysisted only of a
bedroom and a kitchen would number be in the joint possession
of both these persons namely. the appellant and ram ashray
sharma. the next and the crucial question that arises is whether the
prosecution has established the essential ingredients of the
offence in the light of the provisions of s. 35 of the act. it has been urged that when the appellant was using the
kitchen it was legitimate to expect that he would be aware
of the existence of the gun which was companycealed there. the
gun was companycealed in such a manner that it was number visible
to the naked eye. although there may be very rave suspicion
that the appellant was aware of the existence of the gun the
prosecution is bound to establish facts from which the companyrt
could have reason to believe that he was aware of the
existence of the unlicensed fire-arm. we are number satisfied
in the present case that any such facts have been
established.


original jurisdiction writ petitions number. 175 359 and 360
of 1971.
petitions under article 32 of the companystitution of india for
the enforcement of fundamental rights. k. sen naunit lal and i. n. shroff for the
petitioners  in all the petitions

v. gupte o. c. mathur p. c. bhartari and bhuvanesh
kumari for respondents number. 1 and 2  in w. p. number. 175 and
359

c. mathur p. c. bhartari and bhuvanesh kumari for res-
pondents number. 1 2  in w.p. number 360 . c. chagla and s. n. prasad for respondents number. 3-5
8-10 14 16 17 19 20-24 31-34  in w.p. number 175

c. agarwala for respondents number6 27  in w.p. number 175
jagmohan khanna for respondents number 30  in w.p. number 175
the judgment of the companyrt was delivered by
palekar j. these three petitions under article 32 are a
sequel to the action taken by the state of jammu kashmir
in pursuance of the order passed by this companyrt 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 above
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 companymunity is hardly 2
of the total population of the state. in companyrse of time
other companymunities 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 companymunities in the
state. in 1954 part iii of the indian companystitution with some
modifications was made applicable to the state. in spite of
it representation in the services followed the companymunal
pattern. on 14th junumber1956 the state promulgated the jammu
kashmir civil services  classification companytrol 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 number 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 and ability and shall be subject to the passing of
any tests that government may prescribe in this behalf
seniority being companysidered only where the merit and ability
are approximately equal. in other words promotions were to
be made by selection on merit-cum-seniority basis. numberwithstanding the rules the state followed the companymunal
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 minumberity
communities. 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 companymunal basis and number in accordance with
the law. in december 1965 triloki nath tikoo and shambu nath filed
writ petition number 107 of 1965 in this companyrt alleging that
promotions to the posts of head masters had been made in
contravention of article 16 of the companystitution. 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 jammu
province companystituted backward classes referred to in rule 19
and such reservation was justified under clause  4  of
article 16. the companyrt found that there was numbersufficient
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 directed the high companyrt of jammu kashmir to
gather the necessary material and to report on it. the
decision is reported as triloki nath v. state of jammu
kashmir.  1
after the material was companylected the case again came before
this companyrt for companysideration and this companyrt held  see
triloki nath v. state of jk.   2  that on the material
before it it was clear that there was numberreservation as
permitted by article 16 4  but that the posts had been
distributed on the basis of companymunity or place of residence. the promotions were accordingly held to be invalid. the
order affected 81 teachers who had been promoted companytrary to
the provisions of article 16 1  and  4 . their promotions
were declared void. the companyrt observed this will number
 1  1967 2 s.c.r. 265.  2  1969 1 s.c.r. 103-
however prevent the state from devising a scheme
consistent with the companystitutional guarantees for
reservation of appointments posts or promotions in favour
of any backward class of citizens which in the opinion of
the state is number adequately represented in the services
under the state. this order was passed by the companyrt 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 of the
petitioners that teachers-in-charge were for all purposes
including pay head masters while on the other hand it is
stated for the state that they were entitled only to the
grade pay as teachers and number as head masters. in any case
there seems to have been an anumberalous 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

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
were made respondents. this companyrt found that all the
promotions of the respondents in that case were made number
purely on merit as required by rule 25 referred to above but
had been made on account of the companymunal policy which had
been declared invalid by this companyrt in triloki nath tikkos
case. the companyrt further observed in the absence of any
rule lawfully promulgated for employment of backward
classes promotions companyld be made only in accordance with
rule 25 and there can be numbermanner of doubt that there was
absolutely numbercompliance 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 companystitution. they have therefore to be set aside. all the promotions made to the higher posts or the higher
grade pursuant to the companymunal 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 officers
from the eligible teachers. as a preliminary to the same
the state reverted by an order dated 23-2-1971. all those
teachers who had officiated as head masters or had been
designated as teachers--in-charge. all of them were asked
to hand over charge to the second teacher
17-l631 sup ci/73
in the school. nearly 1100 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 companymittee was appointed
in accordance with the rules and the companymittee 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 officiating as head masters being
appointed between 1960 and 1964 and had number been directly
affected by the two writ petitions already referred to. they alleged that while they were promptly reverted
respondents 3 to 34 who were all junior to petitioner number 1
and also to some of the other petitioners had number been so
reverted number 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 companyld 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 inter-
views were over and selections made by the companymittee. the
petitioners in writ petition number 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 tinder the rules for backward classes but the
whole exercise was merely to secure about 90 of the posts
to muslims. in other words the companyplaint of the
petitioners was that the alleged selection after interview
was number a genuine selection but a fraud. similar allega-
tions were made in 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 bad boycotted the interviews on the ground that
the interviews were bound to be a fraud. the respondents 3
to 325 are the teachers who had been selected at the
interview. it must be stated here that in 1967 the government of jammu
kashmir had appointed the jammu kashmir companymission of
enquiry under the chairmanship of dr. p. b. gajendragadkar. its report was submitted in numberember 1968 and one of the
recommendations of the companymission was to appoint a high-
powered companymittee to draw up a list of backward classes in
the state of jammu kashmir. accordingly the backward
classes companymittee was appointed under the chairmanship of
shri j. n. wazir retired chief justice of jammu kashmir
high companyrt on february 3. 1969. this companymittee made its
report in numberember. 1969 recommending several classes of
citizens who deserved to be described as socially and
educationally back-ward. acting substantially on the
recommendations of the companymittee the state government issued
on april 18 1970 the jammu kashmir scheduled castes and
backward classes  reservation 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 number adequately
represented in such services and posts. later on august 8
1970 a further order was passed by the state knumbern as jammu
kashmir 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 companymittee took these rules into
consideration in making the selections. it is one of the companyplaints of the petitioners that though
the companymittee had professed to follow the principles laid
down by this companyrt in several decisions it had failed to
determine the backward classes in accordance with the
decisions of this companyrt. on the other hand great anxiety
was shown according to the petitioners to rope in as many
persons from the majority companymunities 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
and 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 companytroversy involved in writ petition number 175/71
although the companyclusion 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 in the teachers grade from which
the promotions were made to the head masters grade and if
the principle of equality applied they should have been
also reverted along with the petitioners and required to
appear at the interview along with the petitioners. on
account of this unequal treatment it is alleged the
petitioners had refused to appear for the interview. it
cannumber be disputed that petitioner number 1 was the senior-most
in the grade of teachers from which the. promotion is made
to the post of the head master or tehsil education officer. the other petitioners also are seniors to some of the
respondents. but what happened is that owing to the
communal distribution of seats the respondents 3 to 34 were
all appointed as head masters in and before 1958. the
petitioners had to wait their turn in the 10 seats
earmarked for kashmiri pandits and others and therefore
although they were seniors in the grade of teachers their
chance of appointment as head masters came much later. petitioner number 1 was appointed as an officiating head master
in 1960. petitioners 2 and 3 in 1962 and petitioners 4 to 7
in 1964. they all officiated as head masters till 1971 when
they were reverted. in the case of respondents 3 to 34 number
only were they promoted prior to 1958 but except for
respondents 26. 27 and 30. they had all been companyfirmed in
the head masters posts before 1961. some of the
respondents were further promoted as principals and district
education officers which was a grade higher than that of
head masters. somehow it appears respondents 26 27 and 30
though holding such higher grade posts. had number been
confirmed as head masters and they too were reverted as soon
as this petition was filed. it is number necessary for us to
investigate into the question why these 3 respondents had
number been companyfirmed although some other respondents who were
junior to them had been companyfirmed 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
most of them were also companyfirmed in the posts. there may be
some substance in the petitioners companytention that the
earlier appointment of these respondents being based on the
communal principle was number a
valid appointment and therefore their companyfirmation may number
affect the question. on the other hand it is to be numbered
that the respondents seem number to have figured in triloki
nath tikoos case  w.p. 107/1965  filed in 1965. it would
number therefore be proper to interfere with their
appointments number 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 tikoos
case  or in writ petition 108/1969  makhanlals case  in
which his appointment as head master had been set aside as
invalid his case will have to be treated like that of any
other officiating head master who had been reverted in 1971.
otherwise we do number 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 number turn to the two points referred to above
arising out of writ petitions number 359/71 and 360/71. the
first point involves the question whether the selection by
interviews held by the departmental promotion companymittee
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 companytrol and appeals
rules 1969 which it appears had replaced the old rules of
1956. it appears to us that there is numberdistinction bet-
ween 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 companying from the kashmiri
pandit class did number 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 for interviews. we are number companycerned with these
allegations. it was also alleged that the selections were
stage managed with a view to maintain the old proportion of
communal representation. it was pointed out that when
previously the appointments were made on the companymunal basis
178 posts had gone to muslims and 134 to jammu hindus. number
after selection 177 posts go to muslims and 134 to hindus. it is submitted on behalf of the petitioners that it companyld
number have been
a mere companyncidence that the same number of muslims and
hindus companyld have been selected in any properly companyducted
system of selection. it is companytended 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 companytention also and therefore we shall number go merely
by the companyncidence that the same number of muslims and jamvi
hindus had been selected. there are however two important companysiderations 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 had officiated as
head masters over long periods. they were asked to appear
before a companymittee companysisting of 4 officials. one was a
member of the public service companymission the second was the
secretary of the education department the third was the
numberinee of the chief secretary and the fourth member was the
director of education. the companymittee 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 companyducted interview. but it
appears to us that the interview cannumber 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 companysiderations. 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 companysideration before a selection
is made. for this any companymittee 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 companymittee
did number have before it either the character rolls or
service records of the teachers number any companyfidential reports
about them. they had to go merely by the result of the
interview. in his affidavit the educational secretary has
admitted that such companyfidential records were number made
available to the companymittee 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 number available. moreover the number of
candidates was very large. it is rather extraordinary that such a statement should be
made by a high official of the government. it is difficult
to companyceive
that companyfidential reports were number available. the statement
does number make it clear whether all the companyfidential reports
were number available or only a few of them or for what years. the statement is so vague that it is difficult to accept it. whenever appointment to gazetted posts are made and have to
be approved by the public service companymission companyfidential
reports must be forwarded to the companymission for otherwise
it is difficult to see how the public service companymission can
approve the appointments. it may happen that in a few cases
the companyfidential records may be lost or missing. but to
deprive the companymittee of the benefit of these reports on the
ground that such reports of all the eligible candidates for
the last few years were number 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 number altogether satisfactory. all the
available reports ought to have been produced before the
committee and if any was lost or number available it was the
duty of the department to call for companyfidential reports
afresh from authorities who had opportunities to observe the
character and work of the teachers companycerned. all the
schools are government schools and they must have been
inspected from time to time by the education officers or
inspectors. their reports companyld have been called to aid the
committee in its deliberations. we companysider 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 behalf of the
state that out of the total of 50 marks to be given to the
candidate 20 marks were allotted for general knumberledge 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 companynumberes traits in ones
character and number merely physical appearance
or muscular strength. their ability to
control the students and administer the work
of a school companyld number possibly be tested by a
viva voice test. for this purpose the service
record and personal files of the candidates
were the best criteria for assessing the
suitability and merit. unfortunately for
reasons best knumbern to them the authorities
never placed the service record and personal
files before the departmental promotion
committee members. the rich experience gained
through his career 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 knumbern to
the members of the interviewing companymittee from
the service and personal records of the
candidates. there is companysiderable force in the above criticism. the second companysideration is the 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 number be just average. when
responsible posts are filled by selection cases are knumbern
where selections are number made because candidates of the
required merit were number available. it is therefore
customary for a companymittee making the selection to fix a
standard below which they should number go. in fact it appears
from the affidavit filed by one of the educational experts
who assisted the companymittee that he had suggested that an
optimum cutting score for selection should be at least 50.
in other words his advice was that those candidates who got
more than 50 marks alone should be companysidered. 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 companymittee at the time of the selection. dr. dutt says that his suggestion for optimum cutting score
of number less than 50 had been favourably received by the
departmental promotion companymittee. he further says that
every member of the companymittee 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 companynter
affidavit filed on behalf of the state by the education
secretary the statements made by dr. dutt in his affidavit
though referred to are number companytroverted. but the actual
marking results show an entirely different story. the four
members of the companymittee 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 companymittee fixed 30 instead of 50 as the optimum
cutting score. 30 is generally companysidered 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 companymittee adopted 30 as the cutting
score. the export advisor bad advised 50 as the cutting
score but the companymittee adopted 30 as the cutting score. the expert found that there were many candidates who companyld
number
score even 30 marks and so the companymittee 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 companymittee 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 companymittee and 20 and above from the expert. we companysider
that a selection made on such a poor basis cannumber 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 number to turn to the second point involved in the case
namely reservations in favour of backward classes. we are
number companycerned 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
classes. 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 number mean
that a backward class candidate companyld number be selected to the
unreserved vacancies on merit. a backward class candidates
can companye under the rules in the unreserved vacancies also
solely on merit. we are number companycerned here whether such a
rule is proper when a large percentage of 42 is reserved
for the backward classes. we are however companycerned 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 companystitution 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 number
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 companye to this
court and the decision of this companyrt in m. r. balaji and
others v. state
of mysore 1  is generally regarded as the locus classicus on
the 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 companytext in which it occurs the
expression class means a homogeneous section
of the people grouped together because of
certain likenesses or companymon traits and who
are identifiable by some companymon 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 cannumber be excluded altogether. but in the determination of a class a test
solely based upon the case or companymunity cannumber
also be accepted. by cl.  1  art. 15
prohibits the state from discriminating
against any citizen on grounds only of
religion race caste sex place of birth or
any of them. by cl.  3  of art. 15 the state
is numberwithstanding the provision companytained 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 cannumber be extended so as in
effect to destroy the guarantee of el.  1 . the 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
beneficiaries 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 doing so care must be taken to
see that deserving and qualified candidates
are number excluded from admission to higher edu-
cational institutions. the criterion for
determining the backwardness must number 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 are the
principles
 1  1963 suppl. 1 s.c.r. 439.  2  1968 3 s.c.r. 595. .lm15
which have been enunciated in the decision of this companyrt in

r. balajis case- 1963  suppl. 1 s.c.r. 439 and r.
chitralekh and anumberher v. state of mysore and others  1964

c.r. 368.
it is number merely the educational backwardness or the social
backwardness which makes a class of citizens backward the
class. identified as a class as above must be both
educationally and socially backward. in india social and
educational backwardness is. further associated with
econumberic backwardness and it is observed in balajis case
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 econumberic
considerations an untenable situation may arise because
even in sectors which are recognised as socially and educa-
tionally advanced there are large pockets of poverty. in
this companyntry 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 companyfidence that they are bound to be poor. his
chief companycern is therefore to determine whether the class
or group is socially and educationally backward. though the
two words socially and educationally are used
cumulatively for the purpose of describing the backward
class one may find that if a class as a whole is
educationally advanced it is generally also socially
advanced because of the reformative effect of education on
that class. the words advanced and backward are only
relative terms-there being several layers or strata of
classes hovering between advanced and backward and the
difficult task is which class can be recognised out of these
several layers as being socially and educationally backward. in the report submitted by the backward classes companymittee
to the state of jammu kashmir it is stated that
agriculture is the main stay of the states econumbery. 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 companyditions of the rural population that rural india
of a past generation has numberrelevance today. facilities for
education which were practically number-existent a generation
ago are number available at the villagers door-step. in a
former age it was only the fortunate few who got through
secondary education because- of paucity of teaching
institutions. but number the rural areas am studed with
secondary schools at companyparatively easy distances. except
in
wholly inacceable areas even companyleges are established number
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 companycept 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 ignumberance superstition and prolonged social
suppression. the interests of these sectors must very
naturally be the prime companycern 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 detre of the principle
explained in balajis case which pointed out that backward
classes for whose improvement special provision was
contemplated by article 15  4  must be companyparable 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 companysiderably eased. the failure to grasp this fundamental requirement has
distorted investigations of those who plumped for special
reservations for companymunities which companyprised both advanced
and backward groups. in r. chitralekh anr. v. state of
mysore ors  1  subba rao j  as he then was  speaking
for the majority discarded caste as .the dominant criterion
in the following words at page 388
it may be that for ascertaining whether a
particular citizen or a group of citizens
belong to a backward class or number his or
their caste may have some relevance but it
cannumber be either the sole or the dominant
criterion for ascertaining the class to which
he or they belong. this interpretation will carry out the
intention of the companystitution expressed in
the aforesaid articles. it helps the really
backward classes instead of promoting the
interests of individuals or groups who though
they belong to a particular caste a majority
whereof is socially and educationally
backward really belong to a class which is
socially and educationally advanced. to
illustrate. take a caste in a state which is
numerically
 1  1964 6 s.c.r. 368.
the largest therein. it may be that though a
majority of the people in that caste are
socially and educationally backward an
effective minumberity may be socially and
educationally far more advanced than anumberher
small sub-caste the total number of which is
far less than the said minumberity. if we
interpret the expression classes as
castes the object of the companystitution will
be frustrated and the people who do number
deserve any adventitious aid may get it to the
exclusion of those who really deserve. this
anumberaly will number arise if without equating
caste with class caste is taken as only one
of the companysiderations to ascertain whether a
person belongs to a backward class or number. 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 number unlimited and further the protection given by
special reservation must be balanced against the
constitutional right of every citizen to demand equal
opportunity. moreover where appointments and promotions to
responsible public offices are made greater circumspection
would be required in making reservations for the benefit of
any backward class because efficiency and public interest
must always remain paramount. it is implicit in the idea of
reservation that a less meritorious person is to be
preferred to anumberher who is more meritorious. the jammu kashmir scheduled castes and backward classes
reservation rules 1970 are companyprised 5 parts. part i company-
tains 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 11 mentions 23 social castes and persons
belonging to these social castes are regarded as backward. chapter itt describes small cultivators as backward. chapter tv groups low paid pensioners as backward. chapter
v puts residents in an area adjoining the ceasefire line in
the backward class. chapter vt 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 number directly companycerned 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 class designated by traditional occupa-
tions. in all about 62 occupations have been identified as
traditional. they follow closely the classes designated as
traditional occupational classes by the companymittee in chapter
xiv of its report. in para 124 the companymittee 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
number really traditional occupations and with regard to others
there has been numberinvestigation in depth as to whether they
are traditional occupations or number. it is also companytended by
him 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 number he becomes
entitled to be companysidered as of the class if his grand-
father did. there is numberdoubt that a large number of occupations men-
tioned in the fist is capable of being followed as a
traditional occupation. but some of them at least do number
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 as is well-
knumbern it is the last refuge of the landless unskilled
labourer who has numberother source of employment in the rural
community. 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 hamals and
the like occupations which merely require physical strength
and capacity to work. similarly it would be difficult to
say that the following occupations are traditional
occupations

bearer boy waiter. book. binders. companyk. grass seller. pedlars. load carriers. old garment sellers. watch repairers. grocers in rural areas. milk-sellers in rural areas. vegetable sellers in rural areas. drivers of tongas and other animal driven vehicles. all these occupations do number require special skills
developed by tradition and can be resorted to by anybody
with the requisite resources. then again at serial number. 34
and 56 we have a category of priestly classes who though
following a traditional profession can hardly be regarded as
socially and educationally backward. we therefore think
that there must be a proper revision of the traditional
occupations to fall properly under rule 4.
but the most serious objection is to the artificial
definition given in rule 2 j . the traditional occupation
in respect of a person means the main occupation of his
living or late grandfather and does number include casual
occupation. this would mean that if a person wants the
special advantage as a member of the backward-class it is
enumbergh for him to show that his grandfather was following a
traditional occupation. his father may number be following the
traditional occupation at all. he might have given it up to
follow some other occupation or trade. it is number enumbergh it
is companytended 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 companytinues to be
the living of the family. there is great force in this
contention. if the father of the person who claims special
treatment under articles 15 4  and 16 4  has given up his
low income occupation and become a trader or a government
servant it will be wrong to give the person the special
benefit merely on the ground that his grandfather was
following a certain traditional occupation. it was against
such misuse
that the companymittee 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 number by
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 number companypletely ensure this it is likely to be
abused and the real person for whose benefit the rule is
made will number get the benefit. the rules therefore
pertaining to traditional occupations must be suitably
revised. chapter 11 deals with some 23 low social castes. the company-
mittee in chapter xiii had identified the first 19 out of
them and stated that these castes are companysidered inferior in
society as the service which they render carry a stigma in
it. they suffer from social disabilities and both
educationally and econumberically they are extremely backward. the last four castes in rule 5 have number been mentioned in
chapter xiii of the report. it is number also knumbern 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 numbermaterial before us. as
at present addressed therefore we are number prepared to pro-
ceed on the basis that serial number. 20 to 23 are backward
classes. chapter 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. the may even be a number-cultivator
provided he wholly depends on land for his livelihood. the
cultivator is designated as a class on the basis of the
recommendations made by the companymittee in chapter xiii of its
report. the reasons given by the companymittee go to show that
the overriding companysideration was econumberic. a class as
already observed must be a homogeneous social section of
the people with companymon traits and identifiable by some
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 they hold land
below a certain ceiling is supposed to make them a class. in such a case the relevance of social and educational
backwardness takes a subordinate place. in some areas as in
kashmir valley the ceiling for a cultivator is 10 kanals
of irrigated land. if a cultivator holds 10 kanals of land
or less he is to be regarded as backward i.e. to say
socially and educationally backward. but if his own brother
living in the same village owns half a kanal more than the
ceiling he is number to be companysidered backward. this
completely distorts the picture. it will be very difficult
to say that if a person owns just 10 kanals of land he
should be companysidered socially and educationally backward
while his brother owning half a kanal more should number be so
considered. the error in such a case lies in placing
econumberic companysideration above companysiderations which go to show
whether a particular class is socially and educationally
backward. the same error is repeated in chapter iv wherein
the dependent of a pensioner is supposed to belong tot the
backward class if such pensioner had retired from certain
govt. posts mentioned in appendix and if the maximum of the
scale of pay of these posts did number exceed rs. 100 p.m. they
also included defence service pensioners of the ranks of
sepoy naik havaldars etc. this again is based upon the
recommendation of the companymittee which in chapter 11 of the
report says among others representatives of pensioners
also called on the companymittee and explained the difficulties
faced by them because of being in receipt of a mere income
in the shape of pensionary emoluments. the memorialists
contended that they cannumber keep pace with the ever-rising
price index as rates of pension have remained static and
have pot been enhanced as is being done from time to time
in the case of government servants in regular service. it
was further argued that they companyld ill afford to spare any
part of their meager earnings for the education of their
children. the companymittee felt that these pensioners deserve
on there grounds to be shown companysideration as backward
classes because most of them held class iv or similar posts. ex-servicemen who fall in this class ire about 90000 and
civil posts pensioners are about 15000. it is difficult 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 artificially
created body. it may be that they belong to class iv or
similar grade service of the state. but that is number the
test of their social and educational backwardness. in days
when sources of employment were few many people though
socially advanced might have accepted low paid jobs. some
of them may have failed to make the educational grade and
were hence forced by necessity to accept such low paid jobs. some others might have prematurely retired from posts
carrying the scale referred to above. the accident
therefore that they belong to a section of government
servants of certain category is numbertest of their social
backwardness. the test breaks down if the position of a
brother of such a pensioner is companysidered. if the brother
-631sup. ci/73
also a government servant has the misfortune of retiring
when holding a post the maximum of which was rs. 105 he was
liable to be regarded as number socially and educationally
backward when in all companyscience so far as the two brothers
are companycerned they remain on the same social level. anumberher
brother who is privately employed and retires from service
without any pensionary benefits would number be entitled to be
classed as backward under the test. these anumberalies 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 differentiat in between
them by calling some more backward and others less backward
a thing number permitted by balajis case. there is there-
fore substance in the companytention 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 companystitution instead of
identifying socially and educationally 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 11 are companysidered 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 companymittee in
chapter x and ix respectively of the report. chapter ix
relates to bad dockets. 10 such bad pockets have been
identified by the companymittee and companyer 696 villages in
certain districts and tehsils far away in the interior. the
population of these areas according to 1961 census was about
three lakhs. the companymittee reports as follows
there are for instance well knumbern rather
numberorious backward areas which have to be
treated differently from the rest of the
state. there are others which because of
difficult terrain inaccessibility and absence
of vehicular companymunications still retain their
primitive character. there are stilt 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 number-availability of electric
power industrial development even on the
scale of companytage industry has yet to companye 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 companyclusion that owing to lack of
communication inaccessibility lack of material resources
and the like the re-
sidents of these areas are living in almost primitive
conditions 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
numberserious difficulty in regarding the residents of these
areas as being backward. similar companysiderations apply to
areas adjoining the ceasefire line. they companyprise 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 companytributed to this area
being cut off from the main stream of life. the companymittee
numbericed that the difficulties inherent in the living
conditions in these areas had inevitably lead the inhabi-
tants of these areas living in econumberic and educational
backwardness. there are restrictions on their free movement
and they have to remain indoors after sun set. the mate
members cannumber 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 companyld be made in the land be cause of the
nearness of the ceasefire line. raids accompanied by cattle
lifting and damage to property are number uncommon. loss of
life also takes place occasionally. the inhabitants find it
equally difficult to pursue their traditional arts and
crafts. the effect of all these companytributory factors have
kept these areas in so far as social and educational
progress is companycerned very much behind the rest of the
state. we thus find that special reasons have been given by
the companymittee why it companysidered these areas socially and
educationally backward and since the classification is number
made merely on the ground of place of birth we do number think
that there is any serious objection to regard the residents
of the bad pockets and the ceasefire areas as socially and
educationally backward. but rules 10 and 12 have been so
framed that the advantage is likely to be misused by
imposters. a person wanting the advantage of reservation
would be regarded as belonging to these area if his father
is or has been resident of the area for a period of number less
than 10 years in a period of 20 years preceding the year in
which the certificate of backwardness is obtained. the
rules do number insist that either the father or the son should
be a resident of the area when the advantage is claimed. number does it require that the son should have his earlier
education in these areas to ensure that he and his father
are permanent residents of that area. any trader or
government servant from outside who is residing for about 10
years in these area within 20 years of the date when the
advantage is claimed would be entitled to be regarded as be-
longing to the backward class. in order that the benefit
may go to the residents of these areas. government ought to
frame rules
with adequate safeguards that only genuine residents will
get the advantage of special reservation and number outsiders. as the rules stand outsiders who in the companyrse of their
trade or business happened to live in these areas for 10
years out of past 20 years would be able to claim the
benefit. this loophole must be plugged and till that is
done the production of a certificate from the tehsildar as
to the backwardness of any person would be of little value. 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 number capable of
being given effect to. in view of the above findings the selections made by the
departmental promotion companymittee have to be set aside. it is very unfortunate that this companytroversy is going on
from 1965. the net result of it has been to deprive schools
of their head masters. there can be numberdoubt 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 companysider the suggestion
whether all the posts which are number vacant may number be filled
by selections under the rules of 1969 and appropriate
reservations in favour of backward classes be made for
future vacancies as they occur after the backward class
reservation rules are properly revised. accordingly the
following directions are given as a result of our findings
in the three petitions

all those head masters and tehsil
education officers who have been companyfirmed as
such or promoted to yet higher posts with
effect from the date prior to the filing of
the writ petition number 107/1965  triloki nath
tikoos case  will number be affected by the
orders passed in these cases

the cases of all other teachers
including those who were officiating as head
masters and tehsil education officers and are
eligible for promotion shall be reviewed in a
proper selection made in accordance with the
1969 rules. interviews shall number be the
only test. the character rolls and the
confidential records shall be taken into due
consideration. if in any case the same are
number available a report or reports should be
obtained from authorities who had opportunity
to observe the teachers performance and
character. pending selection as per  2  above the
following interim arrangement for filling the
vacant posts of head masters and tehsil
education officers is directed

those head masters and tehsil education
officers who were officiating as such since
prior to the filing of writ petition number
107/65  triloki nath tikoos case  and whose
appointments had number been set aside as invalid
in that writ petition or writ petition number
108/69  makhanlals case  will be restored to
the position they held before the filing of
writ petition number 107/65

the remaining vacant posts of head
masters and tehsil education officers will
be filled by those selected in 1971
interviews provided that each one of those
selected had obtained at least 50 marks from
the departmental promotion companymittee and 50
marks from the expert. as between them
seniority will be respected.