Judgment

GROVER, J.: This petition under Article 32 of the Constitution illustrates how an attempt has been made to circumvent the law declared by this Court in Triloki Nath v State of Jammu and Kashmir, (1969) 1 SCR 103 = (AIR 1969 SC 1 ) by which the State policy of reserving 50% of the vacancies among the teachers in the employment of the respondent State for the Muslims of Kashmir and out of the remaining 50 per cent, 40 Per cent for the Jamvi Hindus and 10 per cent for others including Kashmiri Pandits was struck down as contrary to the constitutional guarantee under Art. 16.

2. The Petitioners, who are 10 in number, are in the service of the Education Department of the State of Jammu & Kashmir. According to the petition, petitioner No. 1 joined service in 1952 as a teacher in the Government High School, Poonch. He had passed the Bachelor of Teaching Examination and was given the grade of Rs. 80-8-200. This grade which was of a non-gazetted post was later revised sometimes before 1964 to Rs. 150-500. The gazetted post carried a grade of Rs. 300-600. Petitioner No. 2 entered service of the erstwhile State of Jammu & Kashmir in 1943 as teacher in the Government School. Tregham. He later on passed the examinations of Bachelor of Teaching and the Master of Arts and was selected in July 1968 for teaching in the Higher Secondary School. Petitioners 3 to 10 were trained graduates holding degrees of Bachelor of Education. Petitioners 3, 4, 6, 7, 9 and 10 had also passed the Master of Arts examination and with the exception of petitioner No. 10 were selected for teaching in Higher Secondary Schools in July 1968.

3. All the teachers and other officers of the Education Department of the State were governed by the Jammu & Kashmir Civil Services (Classification, Control and Appeals) Rules, 1956 which were promulgated on June 14, 1956. Rule 9 relates to first appointment to a service or class. According to rule 19 in making the appointment to a service or class reservation may be made in favour of any backward class which, in the opinion of the Government, is not adequately represented in the services. Rule 24 dealt with seniority. Rule 25 to the extent it is material reads:

"Promotions: (1) All promotion shall be made by the appointing authority.

(2)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 test that Government may prescribe in this behalf seniority being considered only where the merit and ability are approximately equal.

(3) All other promotions shall be made in accordance with seniority and subject to any test or special qualifications prescribed by Government unless -

(a) the promotion of a member has been withheld as a penalty; or

(b)a member is given special promotion for conspicuous merit and ability."

Articles 14 and 16 of the Constitution were made applicable to the State of Jammu & Kashmir in 1954. Rule 19 is stated to have been abrogated in the year 1958. But in giving Promotions to the teachers in the gazetted cadre respondents I and 2 adopted the following basis, which will be called the communal policy hereafter :

(1) 50 per cent of the vacancies were filled from among the Muslims of the entire State.

(2) 40 per cent out of the remaining 50 per cent vacancies were filled by Jamvi Hindus (Hindus from the Jammu Province of the State, majority of whom are Dogras) and

(3) the remaining 10 per cent of the posts were given to others including Kashmiri Pandits.

This was purported to be done on the ground that Muslims of the entire State and the Hindus of Jammu Province constituted "backward classes" for the purpose of employment.

4. In December 1965 Triloki Nath and Shambu Nath, the present petitioners 2 and 4 filed a writ petition in this court. In all 81 respondents were impleaded which included the present respondents Nos. 38 to 107. In that petition it was alleged that the communal policy of prom