JAGAN NATH BABU Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is a writ petition submitted under Art. 32 2 -A of the Constitution of India and further purports to be under S. 103 of the Constitution of Jammu and Kashmir, for the grant of a writ of Mandamus or any other appropriate writ along with a declaration that the appointments of respondents 3 -14 as SPT Superintendents -cum -senior grade Accountants under Order No. 149/A of 1957, dated 16 -2 -1957 are ultra vires and ineffective and for a further declaration that the petitioners are,in preference to respondents 3 to 14, eligible for the posts on which these respondents have been appointed. As the matter involved very important points of law, I heard the parties quite at length and further permitted the parties to submit written arguments, which they did. In addition to the written arguments the Accountant General submitted an affidavit. All this forms part of the record.

(2.) IT appears that the Cabinet passed Order No. 2014 -C, dated 8 -11 -56 with the avowed object of securing of "rationalization of work and increase in the staff of the Audit and Accounts Department." In this order provision was made for direct recruitment of persons including the officials of the Audit Department to the scales of Rs.150 -15 -300 and Rs.100 -7 E. B. 8 -175, in the Audit and Accounts so as to remove the "communal disparity" in the Department. In pursuance of this order, the Accountant General passed Order No. 149/A, dated 16 -2 -57 with a view, as he says, to implement the reorganization scheme sanctioned by the said Cabinet Order No. 2014 -C of 1956. The implementation of the said Cabinet Order was made by the Accountant general by promoting respondents 3 to 14 as S. P. T. Superintendents in the Accountant Generals office. The allegation by the petitioners against these respondents is that they do not possess the minimum qualifications needed for being appointed to the posts of Superintendents, and as against them the petitioners possess the necessary qualifications. The petitioners, have, therefore, challenged both the Cabinet Order No. 2014 -C and also the order passed by the Accountant General by which the Cabinet Order has been implemented as being ultra vires of the provisions of the Constitution and the rules having the force of law. The petitioners have further submitted in their writ petition that all of them unlike respondents 3 to 14 are seniors in the list, possess the requisite qualifications, and are otherwise also highly qualified, and have passed the necessary departmental examinations, and that some of them were acting as Superintendents when they were reverted as a result of the order referred to above and that their superior merit and claims have been brushed aside on communal considerations which in their submission is a violation of the fundamental rights as guaranteed by the Indian Constitution and also by the Constitution of Jammu and Kashmir. This fact has not been denied by the respondents that all the petitioners belong to one -community and that they are senior in the list and had passed the requisite tests laid down by the rules governing promotions to the posts of Superintendents and senior examiners and that as against all this, the respondents 3 to 14 belong to other communities and do not possess the qualifications needed. On these facts the petitioners have now sought the relief, which has been given in detail in the beginning of this order.

(3.) THE petitioners learned counsel has in course of his arguments submitted that Art hits the above -mentioned Cabinet Order. 14 of the Constitution. Art. 14 of the Constitution, briefly speaking, lays down that nobody shall be denied equality before law or equal protection of law, and thus puts all citizens in the State on a footing of equality without distinction of colour, creed or caste. The evolution of a common citizenship is the sheet anchor of our constitution. The constituent Assembly of our State was Fully alive to this constitutional requirement and has therefore incorporated various provisions in our Constitution for securing this purpose. The State has been directed to take upon itself the removal of fissiparous tendencies amongst people and also fostering of a spirit of brotherhood amongst people. In S. 25 of the Jammu and Kashmir Constitution it has been laid down that the State shall combat ignorance, superstition, fanaticism, communalism, racialism, etc., and shall seek to foster brotherhood and equality amongst all communities under the aegis of a secular State. Needless to add that treating all citizens cans foster a spirit of brotherhood equally not only before law but also in all walks of life. It is common experience that if even brothers are treated unequally, a disruption in the family will be inevitable. "The equal protection of laws" clause has formed the subject matter of many a judicial discussion in many American decisions. Reference -may be made to Nixon v. Herndon 1927 273 US 536 A, which pertained to a case in which Negroes in the Texas State were debarred from Participating in a primary election of a political party. It was held to be recial discrimination, and contrary to the "equality before law" clause, The learned Judge who delivered the Judgment referring to this clause observed that "it applies to all, was passed as we know with special intention to protect the blacks from discrimination against them. It not only gave citizenship and privileges of citizenship to persons of colour, but it denied to any State the power to withhold from them the equal protection of the law. What is this but declaring that the law in the State shall be the same for the Black as for the White? In Yuck Wo v. Hopkins, 1886 118 US 356 B,an Ordinance was passed which made it impossible for Chinese laundrymen to ply their trade, while others not Chinese were free to pursue their trade. Mr. Justice Mathews of the US. Supreme Court observed that "No reason whatsoever except the will of the Supervisors is assigned, why they should not be permitted to carry on in their accustomed manner their harmless and useful occupation or they depend for a livelihood. And while the consent of the Supervisors is withheld from them and two hundred other petitioners - all of who happened to be Chinese subjects and eighty others who are not Chinese subjects are permitted to carry on the same business under similar conditions. The fact of this discrimination is admitted. No reason for this is shown and the conclusion cannot be resisted that no reason for this exists except hostility to the race and nationality to which the petitioners belong and which in the eye of law is not justified."