Shah, J. - (1.) By order dated December 15, 1966, this Court called upon the High Court of Jammu and Kashmir to "gather the necessary material, such as, the total population of the entire State, the break-up figures of the two provinces, the strength of different 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 the opinion of the High Court on the evidence led by the parties pursuant to the previous order.
(2.) The petitioners had by the writ petition claimed that in declining to promote them and others similarly circumstanced 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 place 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 to the gazetted cadre of the Education Department under Art, 16 of the Constitution. By Cl. (1) of Art. 16 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 provision for reservation of appointments or posts in favour of backward classes of citizens, which are not adequately represented in the services under the State.
(3.) The petitioners claimed that they had been discriminated against in the matter of promotion to the gazetted cadre, solely on the ground 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 - belonged to the Muslim community or that they were Hindus belonging to the Jammu province of the State of Jammu and 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 and Kashmir formed 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 as 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 empowers 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 provision making such reservation need not be by a statutory enactment:if may be made by an executive order of direction. But there is not even a formal executive order expressly dealing with reservation of posts and appointments in the Education Department. On behalf of the State it is claimed that as a matter of State policy, in making appointments and promotions, reservations in fact have been made by the State as alleged by the petitioners with some variations as to percentage reserved for the Hindus from the province of Jammu. No opinion need be expressed in this case on the question whether a provision under Art. 16 (4) is not effective, unless it is made by legislation, or by an executive order formally published.;