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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 376 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 378 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 379 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