Judgment

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 Court in Makhanlal Waza v. State of Jammu & Kashmir, on 23-2-1971. 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) SCR 832.

2. 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 community is hardly 2 of the total population of the State. In course of time other communities 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 communities in the State.

3. In 1954 Part III of the Indian Constitution with some modifications was made applicable to the State. In spite of it representation in the services followed the communal pattern. On 14-6-1956 the State promulgated the Jammu & Kashmir Civil Services (Classification Control & 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 not 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 considered only where the merit and ability are approximately equal. In other words, promotions were to be made by selection on merit-cum-seniority basis. Notwithstanding the rules, the State followed the communal pattern of appointments and promotions, reserving 50 of the posts for Muslims, 40 mainly to the Hindus of Jammu and the remaining 10 for Sikhs, Kashmiri Pandits and other minority 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 communal basis and not in accordance with the law.

4. In December 1965 Triloki Nath Tikoo and Shambhu Nath filed Writ Petition No. 107 of 1965 in this Court alleging that promotions to the posts of Head Masters had been made in contravention of Article 16 of the Constitution. The State admitted that 50 of the posts were filled by the Muslims 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 constituted backward classes referred to in Rule 19 and such reservation was justified under clause (4) of Article 16. The Court found that there was no sufficient material before it to decide if the claim made on behalf of the State was justified and so by an Order D/- 15-12-1966 directed the High Court of Jammu & Kashmir to gather the necessary material and to report on it. The decision is reported as Triloki Nath v. State of J & K., (1967) 2 SCR 265.

5. After the material was collected the case again came before this Court for consideration and this Court held (See : Triloki Nath v. State of J & K.) (1969) 1 SCR 103 that on the material before it it was clear that there was no reservation as permitted by Article 16 (4) but that the posts had been distributed on the basis of community or place of residence. The promotions were accordingly held to be invalid. The order affected 81 teachers who had been promoted contrary to the provisions of Article 16 (1) and (4). Their promotions were declared voi