# TRILOKI NATH & ANR v. STATE OF JAMMU & KASHMIR & ORS

- **Citation:** [1969] 1 S.C.R. 103
- **Court:** Supreme Court of India
- **Decided:** 1968-04-23
- **Case number:** Writ Petition No. 107 of 1965
- **Bench:** M. Hidayatullah, J. C. :iHAH, S. M. S!Kri, V. Ramaswam!, V. Bhargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/triloki-nath-anr-v-state-of-jammu-kashmir-ors-4369
- **Pages:** 5

## Headnote

Co11sri1111ion of India, 1950 Art.
16--Backward
cla.~s-Reservation
of posts 011 the basis of religion and place of residence-When protected
by Art. 16(4).
The pe.titioncrs filed a \Vriit petition in this Court claiming that the
respondent Staitc had discriminated against them in the matter of promo·
tion to the gazetted cadre of the Education Department on grounds of
religion and place of reside.nee and thus
violated Art.
16(2) of the
Constitution. The. case that junior officers were pron1oted to the gazetted
cadre
over officers senior to them on the ground solely that they-the
junior members-belonged to the Muslim community or that they were
Hindus belonging to the Jan1mu province of the State, was not denied by the
State, but, was sought to be justified on the ground that the State had
acted in consonance with the. principles of Art. 16(4) on 1the basis that
Yluslims as a community formed a backward class in the State, and
similarly, Hin.dus from the Jammu province formed a backward com~
munit)\ and that they were not adequately represented in the services. of
the State.
HELD : The expression 'backward class' is not used as synonymous
\\·ith 'back\vard caste' or 'back\vard community'.
The expression 'class'
in its ordinary connotation may mean a homogcnous section of the people
grouped together because of certain likenesses or common traits, and
\Vho arc identifiable by some common attributes such as
status,
rank,
occupation_. residence in a locality. race, religion and the like; but,
for
purposes of Art. 16(4) in determining whether a section forms a class,
a test solelv based on caste. community,
race,
relh?ion,
sex,
descent
place of birth or residence cannot be ·adopted. because it \vould directlv
offend the Constitution. The members of an entire caste, or community
may, in the social, economic and educational scale of values at a given
time, be backward and may, on that ·account be treated as a backward
class. blllt that is not because they are members of a caste or community,
but because they form a clas.<. [105 F-H]
In the present case, the State has not produced any evidence to show
that any provision \Vas made for reservation of appointments or posts
in. favour of any backward class of citizens. On the other hand, selec-
.::ion of candidates seems to have been made merely to secure adequate
representation of such elements as were not adequately represented in
the services.
Therefore, when the State proceeded not to make reservations in. favour of any backward class, but to distribute ithc total . num~
be·r of posts or appointments on the basis of community or place of
residence. no reservation. permitted by Art. 16(4). can be said to have
been made. and the implementaition of such a policy would be contrary
to' the constitutional guarantee under Art. 16(1) and (2). [106 A-B.
F--G: 107 A-Cl
H
ORIGINAL JURISDICTION : Writ Petition No. 107 of 1965.
Petition under Art. 32 of the Constittuion of India for the
enforcement of fundamental rights.
•
104
SUPREME COURT REPORTS
[ 1969] I S.C.R.
M. C. Setalvad, Na1111i1 I.al ;u1d R. Gopalakris/111a11, for the
petitioners.
C. K. Daphtary, Attorney-General, M. S. K. Saw·i, R. If.
Dlzebar and R. N. Sachtiley, for respondents Nos. I and 2.
The Judgment of the C<mrt wa> delivered by
Shah, J.-By order dated December 15, 1966, this
Court
called upon the High Court of J ammu & Kashmir to '"gather the
necessary material, such as, the total population of the entir.:
State, the breakup tigurcs of the two provinces, the strength of
d1ffcrem communities and the extent of their social and economic
backwardness and the criteria applied by the State in that regard ...
and to make a report in that behalf. The report has now been
submitted to this Court together with copies of the evidence oral
and documentary produced by the parties. It is unfortunate that
the learned Judge who heard the matter did not record his opinion
on the evidence. We do not, however, on the view we take, deem
it necessary

## Text

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TRILOKI NATH & ANR.
v.
STATE OF JAMMU & KASHMIR & ORS.
April 23, 1968
(M. HIDAYATULLAH, C.J., J. C. :iHAH, S. M. S!KRI,
V. RAMASWAM! AND V. BHARGAVA, JJ.]
Co11sri1111ion of India, 1950 Art.
16--Backward
cla.~s-Reservation
of posts 011 the basis of religion and place of residence-When protected
by Art. 16(4).
The pe.titioncrs filed a \Vriit petition in this Court claiming that the
respondent Staitc had discriminated against them in the matter of promo·
tion to the gazetted cadre of the Education Department on grounds of
religion and place of reside.nee and thus
violated Art.
16(2) of the
Constitution. The. case that junior officers were pron1oted to the gazetted
cadre
over officers senior to them on the ground solely that they-the
junior members-belonged to the Muslim community or that they were
Hindus belonging to the Jan1mu province of the State, was not denied by the
State, but, was sought to be justified on the ground that the State had
acted in consonance with the. principles of Art. 16(4) on 1the basis that
Yluslims as a community formed a backward class in the State, and
similarly, Hin.dus from the Jammu province formed a backward com~
munit)\ and that they were not adequately represented in the services. of
the State.
HELD : The expression 'backward class' is not used as synonymous
\\·ith 'back\vard caste' or 'back\vard community'.
The expression 'class'
in its ordinary connotation may mean a homogcnous section of the people
grouped together because of certain likenesses or common traits, and
\Vho arc identifiable by some common attributes such as
status,
rank,
occupation_. residence in a locality. race, religion and the like; but,
for
purposes of Art. 16(4) in determining whether a section forms a class,
a test solelv based on caste. community,
race,
relh?ion,
sex,
descent
place of birth or residence cannot be ·adopted. because it \vould directlv
offend the Constitution. The members of an entire caste, or community
may, in the social, economic and educational scale of values at a given
time, be backward and may, on that ·account be treated as a backward
class. blllt that is not because they are members of a caste or community,
but because they form a clas.<. [105 F-H]
In the present case, the State has not produced any evidence to show
that any provision \Vas made for reservation of appointments or posts
in. favour of any backward class of citizens. On the other hand, selec-
.::ion of candidates seems to have been made merely to secure adequate
representation of such elements as were not adequately represented in
the services.
Therefore, when the State proceeded not to make reservations in. favour of any backward class, but to distribute ithc total . num~
be·r of posts or appointments on the basis of community or place of
residence. no reservation. permitted by Art. 16(4). can be said to have
been made. and the implementaition of such a policy would be contrary
to' the constitutional guarantee under Art. 16(1) and (2). [106 A-B.
F--G: 107 A-Cl
H
ORIGINAL JURISDICTION : Writ Petition No. 107 of 1965.
Petition under Art. 32 of the Constittuion of India for the
enforcement of fundamental rights.
•
104
SUPREME COURT REPORTS
[ 1969] I S.C.R.
M. C. Setalvad, Na1111i1 I.al ;u1d R. Gopalakris/111a11, for the
petitioners.
C. K. Daphtary, Attorney-General, M. S. K. Saw·i, R. If.
Dlzebar and R. N. Sachtiley, for respondents Nos. I and 2.
The Judgment of the C<mrt wa> delivered by
Shah, J.-By order dated December 15, 1966, this
Court
called upon the High Court of J ammu & Kashmir to '"gather the
necessary material, such as, the total population of the entir.:
State, the breakup tigurcs of the two provinces, the strength of
d1ffcrem communities and the extent of their social and economic
backwardness and the criteria applied by the State in that regard ...
and to make a report in that behalf. The report has now been
submitted to this Court together with copies of the evidence oral
and documentary produced by the parties. It is unfortunate that
the learned Judge who heard the matter did not record his opinion
on the evidence. We do not, however, on the view we take, deem
it necessary to send back the papers for recording lhc opinion
of the High Court on the evidence led by the parties pur;uant to
the previous order.
The petitioners had by the writ petition claimed lhat in declining to promote them and others similarly circumst;mccd to the
gazetted cadre, the State had "acted purely on
communal basis
inasmuch as senior members of the Service belonging" to one
community had been placed below the junior-most members of
other communities only on the basis of their respective community and on the basis of residence in a locality, and had thereby
denied the guarantee of equality in matters of employment and
appointment lo the gazetted cadre of the Educ<ilion Department
under Art. 16 of the
Constitution.
By cl.
(I) of
Art.
J 6
equality of opportunity in
matters relating to employment or
appointment between members of the same class is guaranteed
by a positive injunction : cl. (2) enjoins the State not to discriminate against citizens in respect of any employment or office
on the ground of. race, religion. caste, sex, descent, place of birth
or residence.
Clause ( 4) provides a limited exception to the
operation of the other clauses of Art. 16 : it authorises the State
to make provisions for reservation of appointments or posts in
favour of backward classes of citizens. which are not adequately
represented in the services under the State.
The petitioners claimed that
they had been
discriminated
agains1 in the matter of promotion to the gazetted cadre. solely
on the ~round of religion and place of residence.
The case that
junior officers were .promoted to the gazetted cadre over officers
senior to them on the-ground solely that they-the junior members
-belon.~cd to the Muslim community or that they were Hindus
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TRILOKI NATH v. J. & K. STATE (Shah, J.)
105
belonging to the Jammu province of the State of Jammu &
Kashmir was not denied. But this prejudicial treatment of_ senior
officers was sought .to be supported on the plea that the State had
acted in consonance with the principles of cl.
( 4) of Art. 16
of the Constitution. It was the case 'Of the State that Muslims
as a community in the whole of the State of Jammu & Kashmir
fonned a backward class of citizens and they were not adequately
represented in the services under the State :
similarly Hindus
from the province of Jammu formed a backward community and
were not adequately represented in the services of the State, ·and
on that account reservation in the matter of appointments or posts
and promotions in the services of the State was made in respect
of those classes. Clause ( 4) of Art. 16 undoubtedly empowe(l;
the State to make reservation of appointments or posts in favour
of any backward. class of citizens so as to give the class an adequate representation in the services under the State. _ The provi~
sion making such reservation need not be by a statutory enactment : it may be made by an executive order or direction. . Bl\l
there is ·not even a formal executive order expres~ly dealing. with
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reservation of posts and appointments in the Education Department. On behalf of the State it is claimed t):iat as a matter of
State policy, in making appointments and promotions,
reserva'-
. lions in fact have been n;iade by the State as alleged by the peti_tioners with some variations as to percentage reserv.ed for the
Hindus from the province of Jammu, No opinion need be e)\-
-pressed in this case on the question whether a provision unde_r
E
Art.
16 ( 4) is not effective, unless it is made by legislation, or
_by an executive order formally published.
Article 16 in, the first instance by cl. (2) prohibits discrimin~tion on. the ground, inte!" alia, of reli~ion, race, caste, place of
-birth, residence and pefllllts an exception .to be made in the
F · matter of reservation in favour of backward classes of citizens.
The expression "backward class" ~ not used as ~onymeius· with
"backward caste" or "backward community".· -The members .of
-an entire caste or communify may in the social, economic-- and
educational scale of values at a given time be backward and· may
·on that account be treated as a backward class, but that iS not
G
because they are members of. a caste or community, but because
they form a class.
In its ordinary connotation -the expressiQ!l
"class" means a homogeneous section of the people grouped together because of certain likenesses- or commotf traits, and· who
are identifiable by some common atrributes such· as status ·rank.
occupation, resid.ence in a locality, race, religion and the . like.
u
But for the -purpose ·ef Art. 16 ( 4) in determining whether a section forms a class, a test solely based on caste; -community, race,
religion, sex, -descent,. place of birth- or residence cannot ·be
adopted, bepause j.t "\V()Uld directly pffe_n<l t_l)e· Constit'l!tion.
LIO Sup. C.l./68-8
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SUPREME COURT REPORTS
(1969) I S.C.R.
· In the voluminous evidence produced before the High Court
a fonnal order making a provision for reservation of appoint·
ments or posts in favour of any backward class of citizens dOC6
not find a place. The only evidence to which our attention has
been invited is the statement of Malik Ghulam Nabi, who deposed
"that the policy laid down by the Government in matters of the
employment to the· State services is that 50% of the vacancies
are reserved for the Muslims of Kashmir (for the entire Sta:e).
Out of the remaining 50%, 40% arc reserved for the Jammu
Hindus and I 0 per cent for the Kashmiri Hindus. There are
a number of Government orders by which this policy has been
laid down, but due to the short time at my disposal, I have been
able to get only one copy of such order, which is signed by the
Chief Secretary whose handwriting I know and identify".
In
cross-examination Malik Ghulam Nabi stated that the order produced by him applied to all kinds of services under the State and
it was "being implemented even now and was still in force''. The
witness was unable to speak to the criteria on the basis of which
the order was issued. The order of which a copy was produced
by Malik Ghulam Nabi related to the promotion to the pests of
Superintendents in the Civil Secretariat and other offices.
It
purpons to be a record of the decisions taken by the Council of
Ministers in the matter of promotion of Superintendents in the
Secretariat. It was recorded in paragraph 4 of the order that a
Selection Board consisting of four Secretaries to the Government
was set up and they were asked "to prepare a Select List on the
basis of merit-cum-seniority, keeping in view the policy of adequate representation of such clements as are not adequately re·
presented in the services and to pay due regard to Provincial proportions".
There is no reference in any of the clauses of the
order to selection of officers on the basis that they belong to backward classes.
The injunction to the Secretaries to select candidates "keeping in view the policy of adequate representation of
such elements as were not adequately represented in the services",
is not a provision making reservation of appointments or posts
in favour of backward classes. Selections made, assuming that
similar orders were passed enjoining the making of promotions
to the gazetted cadre in the Educational Service, could not be
deemed to have been made on the basis of backwardness of the
classes to which they belonged.
The State of Jammu & Kashmir had, it is admitted, from time
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10 time framed lists of backward communities : that is evident
from Ext. Z-3 which is a list of classes who are regarded by the
State as backward. But it is not claimed that in making promoH
tions to the gazetted cadre in the Educational Service, the authorities acted in pursuance of the List Ext. Z-3.
As already ol>-
servcd, the nonnal r,μle contemplated by the constitutional provi-
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TR!LOKl NATH V, J, & K. STATE (Shaih, J.)
107
sion is equality between aspirants to public employment
bq.t
in view of backwardness of certain classes it would be open to
the Siate to make a provision for reservation of appointments or
posts in their favour. When the State proceeds not to make reservations in favour of any backward class, but to distribute tjie
total number of posts or appointments on the basis of community
or place of residence, no reservation permitted by cl. ( 4) of
Art. 16 can be said to be made.
In effect the State policy whic)l
Malik Ghulam Nabi spoke to was a policy not of reservation of
some appointments or posis : it was a scheme of distribution of
all the posts communitywise. Distribution of appointments, posts
or promotions made in implementation of that State policy is
contrary to the constitutional guarantee under Art. 16 ( 1)
and
(2) and is not saved by cl. (4).
The promotions granted to respondents 3 to 83 are accordingly declared contrary to the provisions of Arts. 16(1) and {4)
of .the/Constitution and therefore void. This will not however
prevent the S.tate from devising a scheme, consistent with the
constitutional guarantees, for reservation of appointments, posts
or promotions in favour of any backward class of citizens which
in the opinion of the State is not adequately represented in the
services under the State. The petitioners will be entitled to their
costs of the petition including the costs of the hearing which culminated in :the interlocutory order, and the costs incurred before the
High Court.
V.P.S.
Petition allowed.
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