Full Judgment Text
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PETITIONER:
HARI DATT KAINTHLA & ANR.
Vs.
RESPONDENT:
STATE OF HIMACHAL PRADESH & ORS.
DATE OF JUDGMENT09/04/1980
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
VENKATARAMIAH, E.S. (J)
CITATION:
1980 AIR 1426 1980 SCR (3) 364
1980 SCC (3) 189
CITATOR INFO :
R 1982 SC1579 (17,29)
ACT:
Promotion claim for-Appellants admittedly juniors in
the gradation list of Subordinate Judges in the State of
Himachal Pradesh to Respondents 3, 4 and 5-Whether
appellants could question the legality and validity of the
promotion of respondents 3, 4 and 5 to the cadre of
District/Additional District & Sessions Judges and also the
promotion of respondents 6 & 7 to the selection grade post
subordinate Judges in accordance with Chapter VI of Part VI
of Constitution-Constitution of India Article 16, whether
offended-Constitution of India Articles 233, 235 and 236.
Necessary parties to the proceedings-Whether Government
and High Court, should necessarily appear before the High
Court, when they are made parties challenging their action.
HEADNOTE:
Himachal Pradesh was a Union Territory till January 25,
1971, when at the apex of the Judicial hierarchy there was a
court of Judicial Commissioner. On the introduction of the
Punjab Reorganization Act, 1966 effective from November 1,
1966, certain territories were transferred and added to the
Union Territory of Himachal Pradesh simultaneously extending
the jurisdiction of the Court of Judicial Commissioner of
Himachal Pradesh to the transferred territories.
Consequently provision was made for allocation of persons
belonging to different services in pre-reorganized State of
Punjab (Respondent 4 to 7 being such officers) to Union
Territory of Himachal Pradesh. On May 2, 1967, the judiciary
of Union Territory of Himachal Pradesh was placed under the
jurisdiction of Delhi High Court which continued till
January 25, 1971, when state-hood was conferred on the Union
Territory and a full fledged High Court of Himachal Pradesh
was set up.
Promotional avenues in Himachal Pradesh Subordinate
Judicial service moved vertically from the grass root entry
as subordinate judge promoted as senior sub-Judge-cum-
Assistant Sessions Judge and when the further promotional
avenue is DSJ/ADSJ. They were initially governed by the
Himachal Pradesh (Courts) Order, 1948 issued by the Union
Government in exercise of the power conferred by sections 3
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and 4 of the Extra Provincial Jurisdiction Act, 1947. This
order remained in force till it was replaced by the Himachal
Pradesh Subordinate Judicial Service Rules, 1962. Rule 16(2)
of the 1948 Order provided for the appointment of District
and Sessions Judges. The Chief Commissioner had power to
appoint as many persons as he considered necessary to be
District Judges. In the 1962 Rules, there was no change in
this regard. Effective from January 25, 1971 when statehood
was conferred on the Union Territory of Himachal Pradesh,
the Chief Commissioner was replaced by the Governor and the
Judicial Commissioner by High Court.
Both the appellants were working as Senior Sub-Judge-
cum-Assistant Sessions Judge and they questioned the
validity and legality of promotion of respondents 3, 4 and 5
given on May 18, 1971 as DSJ/ADSJ on the ground that the
365
post of DSJ/ADSJ is a selection post and the criterion for
selection must be merit alone, seniority being treated as
thoroughly irrelevant and therefore, all those who were
within the zone of eligibility should have been considered
before selecting respondents 3, 4 and 5 and this having not
been done the promotion having been purely as the basis of
seniority, their promotion is invalid. Simultaneously they
contended that same criterion would mutatis-mutandis apply
while giving promotion to senior sub-Judge cum Assistant
Sessions Judge to selection grade post and that having not
been done and the promotion having been given only on the
basis of seniority, the same is invalid, as per the
memorandum dated June 15, 1957 issued by the Himachal
Administration. The High Court through its Registrar did not
appear and participate in the proceedings, though made a
party. Nor did the Bench hearing the matter call for the
relevant files from the office of the High Court though a
prayer was made to that effect in the writ petition.
The State of Himachal Pradesh, Respondent No. 1
contended that appointment to the post of D.S.J. was
governed by Art. 233 of the Constitution under which
appointments were to be made by the Governor in consultation
with the High Court and since respondents 3, 4 and 5 were
promoted and appointed as DSJ/ADSJ on the recommendation of
the High Court, the appointments were not open to challenge.
The High Court accepted this plea of the State Government
and dismissed the writ petitions. Hence the appeal by
special leave.
Dismissing the appeal the Court,
^
HELD: (1) Article 309 of the Constitution confers power
on the legislature by appropriate legislation to regulate
the recruitment and conditions of service of persons
appointed to public services and posts in connection with
the affairs of the Union or of a State and till such
legislation is enacted the power is conferred by the proviso
to Article 309 of the President and the Governor, as the
case may be, to make rules in that behalf. Undoubtedly such
rules will have to be in conformity with other provisions of
the Constitution such as Article 16 and the provisions
included in Chapter VI of Part VI of the Constitution. No
rules have been enacted under Article 309 proviso regulating
the recruitment and conditions of service of DSJ/ADSJ till
such rules are framed appointment to the post of DSJ/ADSJ
will have to be made in accordance with the provisions of
Articles 233 and 235 of the Constitution.
[371 F-H, 372 A]
Article 233 confers power on the Governor of the State
to appoint persons either by direct recruitment or by
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promotion from amongst those in the judicial service as
District Judges but this power is hedged in with the
condition that it can be exercised by the Governor in
consultation with the High Court. In order to make this
consultation meaningful and purposive the Governor has to
consult High Court in respect of appointment of each person
as District Judge which includes an Additional District
Judge and the opinion expressed by the High Court must be
given full weight. Article 235 invests control over
subordinate courts including the officers manning
subordinate courts as well as the ministerial staff attached
to such courts in the High Court. Therefore, when promotion
is to be given to the post of District Judge from amongst
these
366
belonging to subordinate judicial service, the High Court
unquestionably will be competent to decide whether a person
is fit for promotion and consistent with its decision to
recommend or not to recommend such person. The Governor who
would be acting on the advice of the Minister would hardly
be in a position to have intimate knowledge about the
quality and qualification of such person for promotion.
Similarly, when a person is to be directly recruited as
District Judge from the Bar the reasons for attaching full
weight to the opinion of the High Court for its
recommendation in the case of subordinate judicial service
would mutatis mutandis apply because the performance of a
member of the Bar is better known to the High Court than the
Minister or the Governor. [372 A-F]
Chandra Mohan v. State of Uttar Pradesh [1967] SCR 77
at 83, Chandramouleshwar Prasad v. Patna High Court & Ors.
[1970] 2 S.C.R. 666 and A. Panduranga Rao v. State of Andhra
Pradesh [1976] 1 S.C.R. 620; followed.
2. Right to be considered for selection is distinct
from an assertion that if considered the person so
considered would of necessity be selected and then alone his
grievance that he was not considered even though eligible
could be examined by the court. And it is impossible to
expect a person to aver that if along with others eligible
he was considered he would have been selected.
[376 B-C]
In the instant case, as the situation stood at the time
of the impugned recommendations for promotion and the
consequent appointment made by Governor there was no such
rule providing merit alone as the criterion for promotion
and the High Court, though it does not reveal its mind,
appears to have proceeded on the criterion of seniority-cum-
merit which is a valid criterion under Article 16 and not
violative of Art. 233 and the appellants, therefore, who
were juniors to respondents 3, 4 and 5 cannot be heard to
make a grievance about the promotion of respondents 3, 4 and
5 who as and when their turn came were considered and on
being found fit were recommended for promotion and the
Governor appointed them. [376 C-E]
3. It is true that the Office Memorandum No.
F.1/4/55/RPS dated May 16, 1957, issued by the Government of
India Ministry of Home Affairs did contain certain
guidelines laying down criterion in giving promotions to
selection posts. In the absence of any material as to
whether the Memorandum was endorsed to the High Court or
whether the High Court adopted or acted upon the same or not
it is difficult to accept that it was binding on the High
Court and any recommendation for promotion made in breach of
contravention thereof would render the promotion invalid.
Even apart from this, the impugned promotions were made on
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May 18, 1971, after Himachal Pradesh became a full fledged
State with a High Court at the apex of judiciary and the
memorandum would cease to have any force or binding effect.
[377 G, 378 C-E]
4. Promotion from the post of subordinate Judge to the
selection grade post of subordinate Judge is a promotion
from one post in subordinate judicial service to another
post in the same service. This promotion would definitely be
under the control of the High Court as provided in Art. 235
of the Constitution. In the absence of a statutory rule, the
High Court would be the sole authority to decide the
question of promotion in exercise of its control under Art.
235. By Art. 235 the High Court has been vested with
complete
367
control over the subordinates courts and this exercise of
control comprehends the power to decide eligibility for
promotion from one post in the subordinate judicial service
to higher post in the same service except where one reaches
the stage of giving promotion as DSJ/ADSJ when Art. 233
would be attracted and the power to give promotion would be
in Governor hedged in with the condition that the Governor
can act after consultation with the High Court which has
been understood to mean on the recommendation of the High
Court. But when it comes to promotion in the judicial
service under the Distt. Judge the High Court would be the
sole authority to decide the question of promotion.
[378 F-H, 379 A-B]
While promotion to the post of Distt. Judge which
includes various posts as set out in Art 236, is with the
Governor, the High Court would be competent to decide the
promotion from one post in subordinate judicial service to
any higher post in subordinate judicial service under the
District Judge. In the present case promotions of
respondents 6 and 7 from the rank of subordinate Judge to
the selection grade post of subordinate Judge is also valid.
[379 G-H, 380 A]
High Court of Calcutta v. Amal Kumar Roy [1963] 1
S.C.R. 437 at 454; State of Assam & Anr. v. Kuseswar Saikia
JUDGMENT:
5. The power to confirm any one in the subordinate
judicial service vests in the High Court in exercise of the
control vested in the High Court under Art. 235; in fact the
power to promote to various posts in the subordinate
judicial service under the District Judge comprehends also
the power to confirm and that vests in the High Court. [380
D-E]
The impugned appointments were made by promotion as
DSJ/ADSJ of those belonging to subordinate judicial service
by the Governor on the recommendation of the High Court as
envisaged by Art. 233 and in the absence of any other valid
rule promotion made on the generally well accepted principle
of seniority-cum-merit is valid. Therefore the promotion of
respondents 3, 4 and 5 to the post of DSJ/ADSJ and
promotions of respondents 6 and 7 to the selection grade
post are valid. [381 A-C]
State of Assam & Anr. v. S. N. Sen & Anr. [1972] 2
S.C.R. 251; State of Bihar v. Madan Mohan Prasad & Ors.
[1976] 3 SCR 110; followed.
6. Where the Government acts on the recommendation of
the High Court and the action of the Government is
challenged by way of a writ petition, in order to facilitate
appreciation of issues raised, the administrative side of
the High Court, if joined as a party, must appear and place
before the Court the entire record for a fair and judicial
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adjudication of the issues on the judicial side of the High
Court. In this case the appellants in their writ petition
requested the High Court to produce the proceedings which
culminated in the recommendation of the High Court to the
Governor for appointment of respondents 3, 4 and 5 as
DSJ/ADSJ. No action appears to have been taken on this
request because no such record appears to have been produced
before the High Court. Such silence militates against fair
adjudication of the issues. Just and fair adjudication must
not only inform the administrative side of the High Court
368
but in order to put its record beyond the slightest pale of
controversy it must avoid any secrecy in this behalf
consistent with public interest. [381 C-F]
&
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 991 of
1975.
From the Judgment and Order dated 25-9-1973 of the
Himachal Pradesh High Court in Civil Writ Petition No.
158/71.
Yogeshwar Prasad, A. K. Srivastava and Mrs. Rani
Chhabra for the Appellant.
Dr. S. Chitale, R. N. Sachthey and S. K. Dhingra for
Respondent No. 1.
S. K. Mehta, P. N. Puri and EME Anam for Respondent No.
4.
K. R. Nagaraja for Respondent No. 6.
The Judgment of the Court was delivered by
DFSAI, J.-Would Article 16 of the Constitution come to
the rescue and be successfully invoked by appellants,
admittedly juniors in the gradation list of Subordinate
Judges in the State of Himachal Pradesh to respondents 3, 4
and 5, questioning the legality and validity of their
promotion to the cadre of District/Additional District &
Sessions Judges (’DSJ/ADSJ’ for short), as also questioning
the legality and validity of promotion of respondents 6 and
7 to the selection grade post of Subordinate Judge ?
Uncontroverted facts are that Himachal Pradesh was a
Union Territory till January 25, 1971, when at the apex of
judicial hierarchy there was a Court of Judicial
Commissioner. On the introduction of the Punjab
Reorganization Act, 1966, (’Reorganization Act’ for short)
effective from November 1, 1966, certain territories were
transferred and added to the Union Territory of Himachal
Pradesh simultaneously extending the jurisdiction of the
Court of Judicial Commissioner of Himachal Pradesh to the
transferred territories. Consequently, provision was made
for allocation of persons belonging to different services in
pre-reorganised State of Punjab (Respondents 4 to 7 being
such allocated officers) to Union Territory of Himachal
Pradesh. On May 2, 1967, the Union Territory of Himachal
Pradesh was placed under the jurisdiction of Delhi High
Court which continued till January 25, 1971, when statehood
was conferred on the Union Territory and a full-fledged High
Court of Himachal Pradesh was set up.
Himachal Pradesh (Courts) Order, 1948, (’1948 Order’
for short), was issued by the Union Government in exercise
of the power conferred by sections 3 and 4 of the Extra
Provincial Jurisdiction
369
Act, 1947, and this Order remained in force till it was
replaced by the Himachal Pradesh Subordinate Judicial
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Service Rules, 1962 (’1962 Rules’ for short). Para 16 (2) of
the 1948 Order provided for the appointment of District &
Sessions Judges. The Chief Commissioner had power to appoint
as many persons as he considered necessary to be District
Judges. 1962 Rules appear not to have made any departure in
this behalf.
Promotional avenue in Himachal Pradesh Subordinate
Judicial Service moves vertically from the grass-root entry
as Subordinate Judge promotable as Senior Sub-Judge-cum-
Assistant Sessions Judge and then the further promotional
avenue is DSJ/ADSJ.
Both the appellants were working as Senior Sub-Judge-
cum-Assistant Sessions Judge and they questioned the
validity and legality of promotion of respondents 3, 4 and 5
given on May 18, 1971, as DSJ/ADSJ on the ground that the
post of DSJ/ADSJ is a selection post and the criterion for
selection must be merit alone, seniority being treated as
thoroughly irrelevant and, therefore, all those who were
within the zone of eligibility should have been considered
before selecting respondents 3, 4 and 5 and this having not
been done, the promotion having been given purely on the
basis of seniority, their promotion is invalid.
Simultaneously they contended that same criterion would
mutatis mutandis apply while giving promotion to Senior-sub-
Judge-cum-Assistant Sessions Judge to selection grade post
and that having not been done and the promotion having been
given only on the basis of seniority, the same is invalid.
In support of the contention reliance has been placed
amongst other thing on a Memorandum dated June 15, 1957,
issued by the Himachal Pradesh Administration. There is a
serious controversy whether this memorandum was effective
and in force on the date of impugned promotions and whether
the same would apply to the case of judicial officers.
Appellants impleaded the State of Himachal Pradesh as
respondent 1 and the High Court of Himachal Pradesh as
respondent 2. Though the High Court would be the most
competent to throw light on the vexed question as to by what
criterion it selected respondents 3, 4 and 5 for promotion
to the post of DSJ/ADSJ and recommended their names for
appointment to the Governor, surprisingly the High Court
through its Registrar did not appear and participate in the
proceedings. Nor did the Bench hearing the matter call for
the relevant files from the office of the High Court though
a prayer to that effect was made in the writ petition.
370
Respondent 1 State of Himachal Pradesh filed the return
to the writ as per the affidavit of Shri A. K. Goswami,
Joint Secretary to the Government, Department of Personnel,
Simla. State Law Department also appears to have
scrupulously kept out from the arena of controversy. In the
return it was admitted that appointments to the post of
Subordinate Judges were made in accordance with the
provisions of para 18 of the 1948 Order till the 1962 Rules
were enacted and brought into force on April 10, 1962. It
was averred that the appointment to the post of Distt. Judge
used to be made under the provisions of para 16 (2) of the
1948 Order which conferred power on the Chief Commissioner
after consultation with the Judicial Commissioner to appoint
as many persons as he thought necessary to be District
Judges. It was further contended that since Himachal Pradesh
attained full statehood on January 25, 1971, appointment to
the post of DSJ was governed by Art. 233 of the Constitution
and, therefore, the appointments were to be made by the
Governor in consultation with the High Court and accordingly
respondents 3, 4 and 5 were promoted and appointed as
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DSJ/ADSJ on the recommendation of the High Court. The
averment to that effect in para 12 of the writ petition was
admitted in the return. Identical position was adopted
supporting the promotion to selection grade given to
respondents 6 and 7.
The return leaves no room for doubt that the promotions
to the post of DSJ/ADSJ were given by the Governor on the
recommendation made by the High Court to the Governor and
the Governor acted upon the recommendation. It was,
therefore, absolutely incumbent upon the High Court to have
pointed out what criterion it adopted in selecting
respondents 3, 4 and 5 for promotion before it went in
search of what principle ought to be adopted in selecting
persons from Sub-ordinate Judicial Service for promotion to
the post of DSJ/ADSJ. There is not even a whimper as to what
criterion was adopted by the High Court in formulating its
recommendations both for promotion as DSJ/ADSJ and to
selection grade in the scale of Subordinate Judge cum-
Assistant Sessions Judge, the latter having been given by
the High Court itself evidenced by the notification dated
March 19, 1971.
Relevant provisions of the Constitution bearing on the
question of appointment of District Judges and control of
the High Court over the subordinate courts may be noticed.
Article 233 reads as under:
"233. Appointment of district judges-(1)
Appointments of persons to be, and the posting and
promotion of,
371
district judges in any State shall be made by the
Governor of the State in consultation with the High
Court exercising jurisdiction in relation to such
State.
(2) A person not already in the service of the
Union or of the State shall only be eligible to be
appointed a District Judge if he has been for not less
than seven years an advocate or a pleader and is
recommended by the High Court for appointment".
Article 235 reads as under:
"235. Control over subordinate courts-The control
over district courts and courts subordinate thereto
including the posting and promotion of, and the grant
of leave to, persons belonging to the judicial service
of a State and holding any post inferior to the post of
district judge shall be vested in the High Court, but
nothing in this article shall be construed as taking
away from any such person any right of appeal which he
may have under the law regulating the conditions of his
service or as authorising the High Court to deal with
him otherwise than in accordance with conditions of his
service prescribed under such law".
Article 236 provides that in Chapter VI of Part VI of
the Constitution the expression ’District Judge’ includes a
judge of a city civil court, additional district judge,
joint district judge, assistant district judge, chief judge
of a small cause court, chief presidency magistrate,
additional chief presidency magistrate, sessions judge,
additional sessions judge and assistant sessions judge. The
expression ’Judicial Service’ in the chapter means a service
consisting exclusively of persons intended to fill the post
of district judge and other civil judicial posts inferior to
the post of district judge. Article 309 confers power on the
legislature by appropriate legislation to regulate the
recruitment and conditions of service of persons appointed
to public services and posts in connection with the affairs
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of the union or of a State and till such legislation is
enacted the power is conferred by the proviso to Article 309
on the President and the Governor, as the case may be, to
make rules in that behalf.
At the outset it must be noticed that no Rules appear
to have been enacted under Art. 309 proviso regulating
recruitment and conditions of service of DSJ/ADSJ.
Undoubtedly such rules will have to be in conformity with
other provisions of the Constitution such as Art. 16, and
the provisions included in Chapter VI of Part VI of the
372
Constitution. Till such rules are framed appointment to the
post of DSJ/ADSJ will have to be made in accordance with the
provisions of Arts. 233 and 235 of the Constitution.
Article 233 confers power on the Governor of the State
to appoint persons either by direct recruitment or by
promotion from amongst those in the judicial service as
District Judges but this power is hedged in with the
condition that it can be exercised by the Governor in
consultation with the High Court. In order to make this
consultation meaningful and purposive the Governor has to
consult High Court in respect of appointment of each person
as District Judge which includes an Additional District
Judge and the opinion expressed by the High Court must be
given full weight. Article 235 invests control over
subordinate courts including the officers manning
subordinate courts as well as the ministerial staff attached
to such courts in the High Court. Therefore, when promotion
is to be given to the post of District Judge from amongst
those belonging to subordinate judicial service, the High
Court unquestionably will be competent to decide whether a
person is fit for promotion and consistent with its decision
to recommend or not to recommend such person. The Governor
who would be acting on the advice of the Minister would
hardly be in a position to have intimate knowledge about the
quality and qualification of such person for promotion.
Similarly when a person is to be directly recruited as
District Judge from the Bar the reasons for attaching full
weight to the opinion of the High Court for its
recommendation in case of subordinate judicial service would
mutatis mutandis apply because the performance of a member
of the Bar is better known to the High Court than the
Minister or the Governor. In Chandra Mohan v. State of Uttar
Pradesh & Ors.,(1) a Constitution Bench of this Court
observed as under:
"The constitutional mandate is clear. The exercise
of the power of appointment by the Governor is
conditioned by his consultation with the High Court,
that is to say, he can only appoint a person to the
post of District Judge in consultation with the High
Court. The object of consultation is apparent. The High
Court is expected to know better than the Governor in
regard to the suitability or otherwise of a person,
belonging either to the ’judicial service’ or to the
Bar, to be appointed as a district judge. Therefore, a
duty is enjoined on the Governor to make the
appointment in consultation with a body which is the
appropriate authority to give advice to him".
373
This view was reaffirmed in Chandramouleshwar Prasad v.
Patna High Court & Ors.(1) observing:
"The High Court is the body which is intimately
familiar with the efficiency and quality of officers
who are fit to be promoted as District Judges. The High
Court alone knows their merits as also demerits".
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In A. Panduranga Rao v. State of Andhra Pradesh & Ors.
(2) this Court observed that there are two sources of
recruitment to the post of District Judge, viz., judicial
service in subordinate rank and members of the Bar. In
either case the consultation would assume the form of
recommendation made by the High Court.
It is thus incontrovertible that appointment to the
post of DSJ/ADSJ in Himachal Pradesh will have to be made in
accordance with the provisions contained in Art. 233. If any
rules are enacted under Art. 309 for regulating recruitment
and conditions of service of DSJ/ADSJ, the rules will have
to be in conformity with Art. 233 and if they violate the
constitutional mandate of Art. 233 of the rules will be held
ultra vires as succinctly laid dow in Chandra Mohan’s case
(supra). To be precise so as to leave no ambiguity, in that
case rule 13 of U.P. Higher Judicial Services Rules provided
for procedure for selection by promotion to the post of
District Judge from the subordinate judicial service and
amongst others, the procedure provided for selection to be
made by a Committee consisting of two judges of the High
Court and the Judicial Secretary to Government. This rule
was held to be ultra vires as being violative of Art. 233
inasmuch as the High Court could be said to have abdicated
its constitutional function of making recommendation to an
outside authority not known to Constitution.
Turning to the facts of the case, save and except the
1948 Order no rules appear to have been enacted regulating
recruitment and conditions of service DSJ/ADSJ in Himachal
Pradesh. Therefore, appointment to the post of DSJ/ASDJ in
Himachal Pradesh will have to be made in conformity with
Art. 233. Even if para 16(2) of the 1948 Order held the
field it merely provided for appointment by the Chief
Commissioner (now replaced by the Governor) in consultation
with the Judicial Commissioner (now replaced by the High
Court). That provision would be in conformity with Art. 233.
The High Court in this case recommended the names of
respondents 3, 4 and 5 for promotion to the post of DSJ/ADSJ
as averred by appellants
374
themselves and the Governor accepted the recommendation and
the appointments were made consistent with the
recommendation. It cannot be gainsaid that this is in
conformity with Art. 233 and the constitutional mandate is
complied with and no statutory rule in the absence of any
could be said to have been violated by promotion being given
in this manner. In our opinion the matter should have ended
there.
The High Court, however, completely obliterating from
its mind the criterion it must have followed in making the
recommendation which prima facie appears to be one of the
seniority-cum-merit, under-took an exercise of a search of
what ought to be the criterion for promotion from the
subordinate judicial service to the responsible post of
District Judge. The High Court framed the question thus:
"The first question is whether in law appointment
to the post of District Judge/Addl. District Judge must
be made by selection of most meritorious officer upon
an appraisal of the comparative merit of eligible
subordinate judges or is it sufficient that it is made
on the basis of seniority-cum-fitness ?"
We find it a bit difficult to follow and appreciate how the
High Court could proceed on such a fruitless and bizarre
enquiry unconnected with and wholly unnecessary in the fact
of the case before it. The same High Court on its
administrative side must have known its own mind when while
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making recommendation for promotion, the principle or
criterion it adopted. The High Court must be presumably
aware even while making recommendation for promotion to the
post of DSJ/ADSJ that it was a responsible post and merit
alone must guide it in making recommendation. Presumably the
full court made the recommendation. The High Court took
notice of the fact that there were no rules at the relevant
time in Himachal Pradesh formulating the principle or
criterion on which such promotion as Distt. Judge was to be
recommended. If thus there was no rule and the High Court
proceeded to adopt merit-cum-seniority, or seniority-cum-
fitness’ as a criterion for recommending promotions from
subordinate judges to the post of district judge neither of
which appears to violate either Art. 233 or Art. 16 or any
other constitutional mandate or any statutory rule, it would
be futile to proceed to examine what ought or possible
criterion should really govern the decision for recommending
persons from subordinate judicial service for promotion to
the post of DSJ/ADSJ. If the High Court felt that the post
of district judge is a very responsible post and merit alone
should govern promotion from subordinate judicial service to
the post of district judge it was
375
incumbent upon the High Court to propose necessary rules and
get them enacted under Art. 309. That appears not to have
been done. Alternatively, High Court should while making
recommendation for promotion put the principle of merit-cum-
seniority in the forefront and act accordingly. The High
Court and the Governor appear to be agreed that the
recommendation for promotion made was proper and the same
was accepted without a demur. In our opinion it is then
futile to examine what ought to be the criterion for such
promotion, unless there is no discrenible principle on which
recommendation can be justified or the recommendation is
attacked as arbitrary, malafide or vitiated by bias. There
is no such allegation.
The High Court after referring to some books on public
administration and public services and keeping in view the
status and responsibility attaching to the post of District
Judge, concluded as under:
"I would therefore hold that having regard to the
duties and responsibilities attaching to the post of
District Judge and the position occupied by the
District Judge in the judicial hierarchy, appointment
to that post must be made by selection of the most
meritorious officer upon an appraisal of the
comparative merit of eligible Subordinate Judges. In my
opinion, the principle of seniority-cum-fitness would
not be a valid principle".
It is difficult to appreciate how such a principle can
be enunciated in abstract. If for regulating recruitment and
conditions of service of district judges it was considered
essential by the High Court that promotion to the post of
District Judge from the subordinate judicial service shall
be on merit alone and seniority having no place in the
consideration unless two are considered equally meritorious,
it was incumbent upon the High Court to have proposed such a
rule to be enacted under Art. 309. Neither the High Court
nor the Government have proposed such rules. And
surprisingly, after reaching this conclusion the High Court
rejected the writ petition, frankly, on an untenable ground
that the petitioners have failed to show that if they had
been considered at the time when the impugned promotions
were made they would have stood a fair choice of being
preferred over respondents 3, 4 and 5. This is an
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unsustainable conclusion. If the High Court is otherwise
right that when promotion is to be given on the criterion of
merit alone, all those in the zone of selection or field of
eligibility must be simultaneously considered and the best
among them should be selected and recommended for promotion.
The silence of the High Court on the most important question
as to what
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criterion it adopted while formulating its recommendation
coupled with the fact that those at the top of gradation
list according to their seniority were recommended is
eloquent enough to conclude that principle of seniority-cum-
merit was adopted by the High Court. What the High Court
appears to have done is as and when the vacancy occurred the
seniormost in the cadre of subordinate judges was considered
and if found fit was recommended. The present grievance is
by persons junior to respondents 3, 4 and 5 whose promotion
is questioned and the grievance is that they were not
considered along with other eligible. It is impossible to
expect a person to aver that if along with others eligible
he was considered he would have been selected. Right to be
considered for selection is distinct from an assertion that
if considered the person so considered would of necessity be
selected and then alone his grievance that he was not
considered even though eligible could be examined by the
Court. It is, however, not necessary to dilate on this point
because in our opinion as the situation stood at the time of
the impugned recommendation for promotion and the consequent
appointments made by Governor there was no such rule
providing merit alone as the criterion for promotion and the
High Court, though it does not reveal its mind, appears to
have proceeded on the criterion of seniority-cum-merit which
is a valid criterion under Art. 16 and not violative of Art.
233 and the appellants, therefore, who were junior to
respondents 3, 4 and 5, cannot be heard to make a grievance
about the promotion of respondents 3, 4 and 5 who as and
when their turn came were considered and on being found fit
were recommended for promotion and the Governor appointed
them.
It was, however, said that Office Memorandum No.
F.1/4/55-RPS dated May 16, 1957, issued by the Government of
India, Ministry of Home Affairs, was applicable to the
services including subordinate judicial service under the
Union Territory of Himachal Pradesh before it attained
statehood and that even if an office memorandum of the
Government of India may not be directly applicable, it
appears to have been adopted by the Union Territory of
Himachal Pradesh because the same was issued by the
Assistant Secretary to the Himachal Pradesh Administration
as per his Memorandum No. Apptt.1/350/57, dated June 15,
1957, with a request that the contents of the Memorandum may
also be brought to the notice of each member of the
Departmental Promotion Committee for Class I, II and III
posts constituted for each Department under the Union
Territory of Himachal Pradesh. This Memorandum, appellants
say, prescribes guideline and lays down criterion in giving
promotions to posts which are styled as ’selection posts’ as
also to selection grades. Broadly
377
stated, the guidelines are that appointments to selection
post and selection grade should be made on the basis of
merit with regard to seniority only to the extent indicated
in the memorandum. It further provided that Departmental
Promotion Committee or other selecting authority should
first decide the field of choice, i.e., the number of
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eligible officers awaiting promotion who should be
considered for inclusion in the selection list provided,
however, that an officer of outstanding merit may be
included in the list of eligible candidates even if he is
outside the normal field of choice. Field of choice was to
be confined to five or six times the number of vacancies
expected within a year. It was indicated that those found
unfit should be excluded. Even in respect of those who are
included in the field of choice each officer should be
classified as outstanding, very good, good, on the basis of
merit as determined by the respective records of service and
thereafter a select list should be drawn up by placing the
names in the order of merit as indicated earlier without
disturbing the seniority inter se within each cadre.
Promotion should thereafter be confined, it was suggested,
to the select list and by following the order in which the
names are finally arranged. It was considered desirable to
periodically revise the select list.
Appellants contend that the memorandum laying these
guidelines was issued, no doubt, by the Government of India
when Himachal Pradesh was a Union Territory and, therefore,
Government of India was competent to issue such directions
in respect of services under the Union Territory of Himachal
Pradesh but even if there is any doubt, once the same was
adopted by Himachal Pradesh Administration, in the absence
of any statutory rule it is binding and any promotion made
in breach or violation of the prescribed guidelines would be
invalid. There is nothing to show that that office
memorandum was endorsed to the High Court and that the
Administration suggested that the High Court should adopt it
while making recommendations for promotion to the post of
DSJ/ADSJ. In the absence of a return by the High Court to
writ petition it is difficult to say whether the
Administration desired that the guidelines prescribed in the
memorandum should also be accepted or adopted by the High
Court. In the return filed on behalf of the Himachal Pradesh
Government it has been stated that the memorandum was
received from the Government of India and that the
memorandum did contain some guiding principles for
appointment to selection posts and selection grade but they
were merely directory in nature and were only issued for the
sake of guidance implying that if the facts and
circumstances of any particular case so warranted, the
concerned authority could make deviation therefrom. It was,
further stated that after Himachal Pradesh attained
statehood on
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January 25, 1971, the memorandum ceased to have any force
and in the absence of any other statutory rule promotions
and appointments to the posts of DSJ/ADSJ can only be made
in conformity with Art. 233 of the Constitution and any
other direction to the contrary would be void and of no
effect.
The High Court disposed of the memorandum by a cryptic
observation that there has been a serious debate before the
Court on the question whether the direction contained in the
aforesaid memorandum had to be complied with by the High
Court and the State Government when the impugned
appointments were made. After noting this debate the High
Court did not proceed to dispose of the contention and did
not record a finding whether the memorandum was or was not
required to be complied with by the High Court while making
recommendations for promotion to the posts of DSJ/ADSJ. In
the absence of any material as to whether the memorandum was
endorsed to the High Court or whether the High Court adopted
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or acted upon the same or not it is difficult to accept that
it was binding on the High Court and any recommendation for
promotion made in breach or contravention thereof would
render the promotion invalid. Even apart from this, the
impugned promotions were made on May 18, 1971, after
Himachal Pradesh became a full fledged State with a High
Court at the apex of judicial and the memorandum would cease
to have any force or binding effect.
The same memorandum was relied on in support of the
contention that in giving promotion to selection grade to
respondents 6 and 7 the guidelines in the memorandum of 1957
were not only not followed but the promotions were made
completely overlooking the guidelines or in contravention of
the guidelines. Reasons for rejecting the efficacy of
memorandum in relation to promotion to the post of DSJ/ADSJ
will mutatis mutandis apply and the contention will have to
be negatived. This contention must also be negatived for the
additional reason that promotion from the post of
subordinate judge to the selection grade post of subordinate
judge is a promotion from one post in subordinate judicial
service to another post in the same service. This promotion
would definitely be under the control of the High Court as
provided in Art. 235 of the Constitution. No statutory rule
was pointed out as to how such promotion was to be given. In
the absence of a statutory rule the High Court would be the
sole authority to decide the question of promotion in
exercise of its control under Art. 235. By Art. 235 the High
Court has been vested with complete control over the
subordinate courts and this exercise of control comprehends
the power to decide eligibility for promotion
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from one post in the subordinate judicial service to higher
post in the same service except where one reaches the stage
of giving promotion as DSJ/ADSJ when Art. 233 would be
attracted and the power to give promotion would be in
Governor hedged in with the condition that the Governor can
act after consultation with the High Court which has been
understood to mean on the recommendation of the High Court.
But when it comes to promotion in the judicial service under
the Distt. Judge the High Court would be the sole authority
to decide the question of promotion (see The High Court,
Calcutta v. Amal Kumar Roy). This becomes manifestly clear
from State of Assam & Anr. v. Kuseswar Saikia & Ors. In that
case one Upendra Nath Rajkhowa was promoted by the Governor
as Addl. District Judge purporting to act under Art. 233 and
a writ of quo warranto was sought challenging the
appointment on the ground that the promotion as Addl.
District Judge could only be made by the High Court acting
under Art. 235. It was also contended that his further
appointment as District Judge by the Governor would be void.
It was so held by the High Court. On appeal when the matter
came to this Court, analysing Art. 233 this Court held as
under:
"It means that appointment as well as promotion of
persons to be District Judges is a matter for the
Governor in consultation with the High Court and the
expression ’District Judge’ includes an additional
district judge and an additional sessions judge. It
must be remembered that District Judges may be directly
appointed or may be promoted from the subordinate ranks
of the judiciary. The article is intended to take care
of both. It concerns initial appointment and initial
promotion of persons to be either District Judges or
any of the categories included in it. Further promotion
of District Judges is a matter of control of the High
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Court. What is said of District Judges here applies
equally to additional District Judges and Additional
Sessions Judges."
This Court accordingly held that the promotion of
Rajkhowa as Addl. District Judge by the Governor was made
under Art. 233 and that it was a valid appointment.
Accordingly the appeal was allowed. It thus becomes crystal
clear that while promotion to the post of District Judge
which includes various posts as set out in Art. 236, is with
the Governor, the High Court alone would be competent to
decide the promotion from one post in subordinate judicial
service to any higher post in subordinate judicial service
under the District
380
Judge. Appellants contend that promotion of respondents 6
and 7 from the rank of subordinate judge to the selection
grade post of subordinate judge is invalid as being in
contravention first of the memorandum and secondly such
promotion must only be on the basis of merit and not
seniority. This contention must fail because no statutory
rule is pointed out as to how the promotion was to be given
and the High Court having given the promotion it was most
competent to do so. The challenge must accordingly fail.
Appellants also contended that even if the criterion
for recommendation for promotion to the post of DSJ/ADSJ is
seniority-cum-merit, respondents 3, 4 and 5 did not deserve
to be promoted because their unfitness stares in the face
inasmuch as they were not considered suitable for
confirmation as subordinate judge as and when their turn
came for confirmation and that would show that they were not
men of merits. It was pointed out that respondents 4 and 5
were not confirmed due to their unsatisfactory performance
in discharge of duties while their colleagues in the same
batch were confirmed earlier. It was further pointed out
that respondent 4 was not even allowed to cross the
efficiency bar for a period of about 10 years and that he
was allowed to cross it for the first time in 1970. These
averments have hardly any relevance. The power to confirm
any one in the subordinate judicial service vests in the
High Court in exercise of the control vested in the High
Court under Art. 235. In fact the power to promote to
various posts in the subordinate judicial service under the
District Judge comprehends also the power to confirm and
that vests in the High Court. It is not necessary to dilate
on this point because it is concluded by a decision of this
Court in State of Assam & Anr. v. S. N. Sen & Anr., wherein
this Court held that under Art 235 of the Constitution the
power of promotion of persons holding posts inferior to that
of the District Judge being in the High Court, the power to
confirm such promotees is also in the High Court and any
rule in conflict with Art. 235 must be held to be invalid.
This view was affirmed in State of Bihar v. Madan Mohan
Prasad & Ors. This Court held that since Art. 235 of the
Constitution vests the power of confirmation in the High
Court, the power of determining the seniority in the service
is also with the High Court. Of course, in doing so the High
Court is bound to act in conformity with any rules made by
the Governor under the provisions of Art. 309 of the
Constitution, if there be a rule.
381
The administrative side of the High Court having chosen
not to participate in the proceedings this Court must
dispose of the appeal on the scanty material available on
record. On the available material the appellants failed to
establish violation of any existing rule, statutory or
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otherwise, governing promotion of persons to the post of
DSJ/ADSJ as there is no such rule. The impugned appointments
appear to have been made by promotion of those belonging to
subordinate judicial service by the Governor on the
recommendation of the High Court as envisaged by Art. 233
and in the absence of any other valid rule, promotions made
on the generally well accepted principle of seniority-cum-
merit appear to be valid. There is, therefore, no substance
in the contention that the promotion of respondents 3, 4 and
5 to the post of DSJ/ADSJ and the promotion of respondents 6
and 7 to the selection grade post were in any manner
invalid.
Before we conclude it must be pointed out that where
the Government acts on the recommendation of the High Court
and the action of the Government is challenged by way of a
writ petition, in order to facilitate appreciation of issues
raised, the administrative side of the High Court, if joined
as a party, must appear and place before the Court the
entire record for a fair and judicial adjudication of the
issues on the judicial side of the High Court. In this case
the appellants in their writ petition requested the High
Court to produce the proceedings which culminated in the
recommendation of the High Court to the Governor for
appointment of respondents 3, 4 and 5 as DSJ/ADSJ. No action
appears to have been taken on this request because no such
record appears to have been produced before the High Court.
Such silence militates against fair adjudication of the
issues. Just and fair adjudication must not only inform the
administrative side of the High Court but in order to put
its record beyond the slightest pale of controversy it must
avoid any secrecy in this behalf consistent with public
interest.
If the High Court felt that the criterion for promotion
to the post of District Judge being a post of status and
responsibility in the judicial hierarchy must only be merit,
seniority having no or very little place, it was incumbent
upon the High Court to propose such a rule to be made under
Art. 309 or adopt to itself such a rule and conform to it.
But if the High Court on the one hand recommended
respondents 3, 4 and 5 according to their seniority as it
appears to be the case, when the vacancies occurred and
accepted their appointment and on the other hand when such
appointments were challenged it went in search of a
principle on the basis of which promotion to the
382
post of DSJ/ADSJ should be given, it is rather difficult to
reconcile these diametrically opposite actions. The High
Court also was in error in proceeding to reject the
appellants petition without recording a finding regarding
the basis on which recommendations were made by it. We have,
however, on the basis of the material before us tried to
resolve the said question.
Having examined the matter in all its ramifications we
are no substance in this appeal and the same is dismissed
with no order as to costs.
S.R. Appeal dismissed.
383