Shinghal. J. - (1.) This appeal by certificate is directed against the judgment of the High Court of Jammu and Kashmir dated November 1, 1974, in Writ Petition No. 124 of 1969.* That petition was filed against the promotions of respondents Nos. 1 to 46 and others as Professors in supersession of the claims of the writ petitioners who contended that they were senior and more qualified for promotion. The High Court allowed the writ petition and quashed the State Government's Order No. 649 -HTE dated July 25, 1969, in regard to the appointments of respondents Nos. 3 to 46 and directed that it would be open to the State Government to make a fresh selection of Professors in accordance with the law. A review petition was filed against the judgment but was dismissed on September 14, 1972. The State Government is aggrieved and has filed the present appeal.
(2.) When the case was taken up for hearing on November 28, 1978, it was brought to our notice by counsel for the respondents that it will not be possible for them to advance their arguments with reference to Article 16 of the Constitution of India as the various sealed covers containing the date on which the selections were made have not been received from the High Court. Learned Attorney General and the counsel for the respondents were in agreement that as the constitutional point which arises for consideration in this case relates to the interpretation of Section 133 (2) (b) of the Constitution of Jammu and Kashmir, hereinafter referred to as the Constitution, it will be enough to consider, at this stage, whether that section has been correctly interpreted and whether the Public Service Commission for the State of Jammu and Kashmir, hereinafter referred to as the Commission, has been consulted in accordance with its requirement. We have accordingly heard the arguments only on these two points, and will confine ourselves to them, leaving the question of the applicability of Article 16 of the Constitution of India on the merits for consideration by the Bench before which the case may be taken up for hearing hereafter.
(3.) The controversy relates to the interpretation of Cl. (b) of sub-sec. (2) of S. 133 of the Constitution which, when read with the other connected provisions, provides as follows, - "133 (2) The Commission shall be consulted - (a) ............... (b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers; (c) ................. and it shall be the duty of the Commission to advise on any matter so referred to them or on any other matter which the Governor may refer to them: Provided that the Governor may make regulations specifying the matters in which either generally, or in any particular class of cases or in any particular circumstances, it shall not be necessary for the Commission to be consulted." Although it has been urged in the written arguments of the appellant that Section 133 (2) (b) was "not at all attracted in the matters of making promotions in the same service', and its true and correct interpretation would be that "it is applicable only to 'making promotions and transfers from one service to another', learned Attorney General has, with his usual candour and fairness, stated that he does not find it possible to support that contention. He has therefore argued that what Cl. (b) of sub-sec. (2) of S. 133 requires is that the Commission shall be consulted; (i) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another, and (ii) on the suitability of candidates for such appointments, promotions or transfers. He has urged that as this requirement of the Constitution was duly complied with, the High Court erred in taking a contrary view.;