Judgement

SUBBA RAO, CJI. : this petition under Art.32 of the Constitution of India has been filed by two teachers for the issue of an appropriate writ to quash the orders of promotion of respondents 3 to 83 and to direct the State of Jammu and Kashmir, the 1st respondent, and the Director of Education, Jammu and Kashmir State, Srinagar, the 2nd respondent, to promote them to the cadre of gazetted teachers with retrospective effect.

2. The facts are simple. The 1st petitioner entered Government service of the erstwhile State of Jammu and Kashmir on May 16, 1943, as a teacher in the Government School, Trehgam. He is an M.A.B.,T., and is at present working as a teacher in the Government Higher Secondary School, Sopore. The 2nd petitioner was likewise appointed as a teacher on February 26, 1952, in the Government Middle School, Nigam, Kashmir. He is a B.A.B.T., and is at present working as a teacher in the Government High School Batamallo. In the year 1957, the 1st respondent prepared a seniority list of teachers of grade Rs. 80-8-200. From time to time the 1st respondent prepared the seniority lists of teachers of the said grade and the last of them was prepared in 1961. Therein the 1st petitioner was given the serial No. 104, and the 2nd petitioner was given the serial No. 140. Whenever there were vacancies in the higher grade of Rs. 250-25-350-EB-30-500, which is a gazetted cadre, they were filled by promotion of teachers in the lower grade comprised in the said seniority list. It is alleged that in promoting teachers to the gazetted cadre, respondents 1 and 2 adopted the following basis:

(1) 50 per cent of the gazetted posts to be filled by promotion are given to Muslims;

(2) about 60 per cent of the remaining 50 per cent of the posts,, are filled by Jamvi Hindus (Hindus from Jammu Province of the State, majority of whom are Dogras): and

(3) the remaining 40 per cent of the 50 per cent of the posts are given to Kashmiri Pandits; some time one or two posts are given to Sikhs out of turn.

To state it differently, out of every 100 gazetted posts, 50 went to Muslims of the entire State of Jammu and Kashmir, 30 went to Hindus from the Province of Jammu, and the remaining 20 went to Kashmiri Pundits out of which one or two went to Sikhs. The said basis is not disclosed in any order made by the State, but is, arrived at on the foot of recruitments by promotion made to the gazetted posts of teachers from time to time. It is also averred that promotions are made not on the basis of merit and seniority, but purely on the ground of religion, caste an place of birth. It is further alleged that though the two petitioners ale seniors as per the aforesaid seniority list, they have been superseded by respondents 3 to 83only on the ground that the petitioners happen to be Kashmiri Pandits and respondents 3 to 83 are either Muslims or Jammu Hindus.

3. In the counter-affidavit the State does not deny the fact that promotions to gazetted posts are made in the manner indicated by the petitioners but says that 50 per cent of the posts were filled by Muslims of the entire State of Jammu and Kashmir and 40 per cent of them were filled by Jammu citizens. It proceeds to support this reservation on the ground that Muslims of the entire State and the Hindus of Jammu Province constituted "backward classes" for the purpose of employment and that it is done in order to reduce gradually the imbalance between the backward classes and the progressive ones.

4. It may be noticed at the outset that though the factual basis for the promotions to the gazetted posts is admitted, no order made by the Government is placed before us either specifying the backward classes or the criteria for backwardness or fixing a proportion between backward classes and others in the matter of promotion. There is also no acceptable material from which we can gather the relevant facts, namely, the latest census figures disclosing the strength of the population in the Provinces of Jammu and Ka