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PETITIONER: M.M. GUPTA AND ORS. ETC. ETC,

       Vs.

RESPONDENT: STATE OF JAMMU & KASHMIR & ORS.

DATE OF JUDGMENT15/10/1982

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. BHAGWATI, P.N. SEN, AMARENDRA NATH (J)

CITATION:  1982 AIR 1579            1983 SCR  (1) 593  1982 SCC  (3) 412        1982 SCALE  (2)913  CITATOR INFO :  R          1987 SC 331  (19,22,24,26)  RF         1992 SC1546  (17)

ACT:      Constitution   of    Jammu   &    Kashmir-Article   109 (corresponding to Article 233 of the Constitution of India)- Scope of-Promotion of subordinate judges as District Judges- High  Court’s   recommendations  rejected   by   the   State Government-Promotions    and     appointments    made     on recommendations of Cabinet Sub-Committee-Validity of.      Consultation-What amounts to-Counter-proposals of State Government without  communicating them  to the  High  Court- Whether could be treated as consultation.      Seniority-Whether  could  be  the  only  criterion  for promotions.      Procedure-High Court  declined to  hear  writ  petition against  its  own  administrative  decision  on  grounds  of propriety-Granted certificate  of  fitness  to  appeal  with consent of  both parties-State,  if could raise objection as to validity  of certificate  at the  time of  appeal-Supreme Court, if  has power  to revoke  the certificate  and  grant special leave and hear the appeal.      Per Bhagwati  and Amarendra  Nath Sen,  JJ. (Pathak, J. concurring in the result)

HEADNOTE:      Independence of  the judiciary  is  one  of  the  basic tenets and  a fundamental  requirement of  our Constitution. Various articles of the Constitution provide or safeguarding the independence  of  the  judiciary.  Article  50  provides separation of the judiciary from the executive.      For some  time past  there appears  to be  a  trend  of interference by the executive, both at the State and Central levels, in  judicial  appointments.  This  has  resulted  in prolonged and  unnecessary delay  in making the appointments to judicial  offices. For  various reasons  judicial offices have ceased  to attract talented members of the Bar and even when competent  members of  the Bar  are persuaded to accept the office of a High Court Judge or of a District Judge they eventually  withdraw  their  consent  both  because  of  the inordinate delay  in making  the appointments  as well as of

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the various restrictions sought to be imposed. 594      Article 235  of the  Constitution vests  control of the judicial administration  completely in the High Court except in   certain    circumstances.   In    these   matters   the constitutional requirement  is that the Governor must act in consultation with the High Court. If, in the matter of these appointments, the High Court is sought to be ignored and the executive chooses to make the appointments, the independence of the  judiciary would  be affected.  It is  necessary that healthy conventions  and proper  norms should be evolved for safeguarding the independence of the judiciary in conformity with the requirements of the Constitution.      Normally, as a matter of rule, the recommendations made by the  High Court  for the  appointment of a District Judge should be  accepted by the State Government and the Governor should act  on the same. Where the State Government does not agree with  the recommendations  of the High Court it should communicate its  views to  the High  Court so  that the High Court  may   consider  the  matter  once  again.  The  State Government must  have complete  and  effective  consultation with the  High Court  in the  matter. Efficient  and  proper judicial administration  being  the  main  object  of  these appointments, there should be no difficulty in arriving at a consensus as  both the  High Court  and the State Government must necessarily  approach the question in a detached manner for achieving  the  objective  of  getting  proper  District Judges for the due administration of justice. Facts :      To fill  up four  vacancies of  District Judges  in the State, the  High Court,  after  considering  the  merit  and suitability of  12 eligible  officers in  the cadre  of Sub- Judges, recommended  four names  to the  Governor. The State Government asked  the High  Court to  send the  confidential reports of  all the  officers considered for the post. While sending the  reports, the  High  Court  had  also  sent  its comments justifying  the selection and set out in detail the reasons for  supersession of senior officers. However on the basis of  the recommendations  of  a  Cabinet  Sub-Committee constituted  by   the   State   Government   to   make   its recommendations   on   this   point,   the   Law   Secretary communicated to  the Registrar of the High Court approval of the Governor  for the  promotion and appointment as District and  Sessions  Judges  certain  officers  other  than  those recommended by the High Court. While giving postings to them the High Court recorded a minute that their postings "should not be  deemed as  consultation with  it in terms of Article 109 of Jammu & Kashmir Constitution.      Four of the Sub-Judges whose names had been recommended by the  High Court  for appointment as District and Sessions Judges but  were rejected  by the  Government, filed  a writ petition in  the High  Court questioning the validity of the Government’s action.  In that  petition, the  High Court was made one of the respondents.      On the question whether it would be proper for the High Court to  hear a  writ petition impugning an order passed by it in  its administrative capacity, with the consent of both the petitioners  and the  respondent-State, the  High  Court declined  to   hear  the   petition.  Since,   however,  the respondent-State did not 595 have any objection to grant to the petitioners a certificate of fitness  to file  an appeal in this Court, the High Court granted the  certificate holding  that the petition involved interpretation of Article 109 of the Constitution of Jammu &

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Kashmir and  also that  it raised  a substantial question of law of general public importance.      Meanwhile the  State obtained  special leave  to appeal against the  order of  the High Court alleging that the High Court had  not decided any point raised in the writ petition on the  ground of  judicial propriety and that therefore the High Court  should  not  have  granted  the  certificate  of fitness to appeal.      The petitioners in the High Court had also filed a writ petition  under   Article  32   of  the   Constitution   for substantially the same reliefs claimed by them in their writ petition in High Court.      It was  contended on  behalf  of  the  appellants  that Article  233  (which  corresponds  to  Article  109  of  the Constitution  of   Jammu  &   Kashmir  and  which  has  been judicially interpreted  by this  Court in a number of cases) deals with  appointment, posting  and promotion  of District Judges but  does not  deal  with  promotion  of  subordinate judges to  the post of District Judges and that promotion of subordinate judges  is vested  in the  High Court  and  that therefore  appointments   made  by  the  Government  without consulting the High Court were void      The State on the other hand contended that consultation contemplated  by   this  Article   does  not   mean   either concurrence or  recommendation and  no  particular  form  or procedure was  necessary to  be followed by the Governor for consultation with  the High  Court and that in this case all the material  which the  High Court  had  submitted  to  the Governor amounted  to consultation within the meaning of the Article.      Allowing the appeal, ^      HELD :  On a  proper interpretation of Articles 109 and 111 of  the Constitution of Jammu & Kashmir, the Governor is the competent  authority to  appoint District Judges and the power of  appointment is  not vested in the High Court. This is settled  by a  long line of decisions of this Court. [609 E-F]      Merely because  the power  of appointing these officers is vested  in the  Governor, it cannot be said that it would lead to  the subservience  of the judiciary to the executive and the  independence of  the judiciary would be undermined. The power to make the appointments conferred on the Governor has to  be exercised  by him  in consultation  with the High Court.  This   provision  has   been  incorporated   in  the Constitution to safeguard the independence of the judiciary. [609 C-D]      It  is   equally  well  settled  that  consultation  or deliberation is not complete or effective before the parties thereto make  their respective  points of  view known to the other or  others and discuss and examine the relative merits of 596 their views.  If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the  proposer,  the  direction  to  give  effect  to  the counter-proposal, without  anything more,  cannot be said to have been done after consultation. [625 B-C]      Chandra Mohan  v. State  of  Uttar  Pradesh,  [1967]  1 S.C.R.77, Chandra  mouleshwar Prasad  v. Patna  High Court & Ors., [1970]  2 S.C.R.  66, High Court of Punjab and Haryana etc. v. State of Haryana, [1975]3 S.C.R. 368; followed.      In the  instant case the counter-proposals sought to be made by  the Government  in the matter of these appointments were never  communicated to  the High  Court  and  the  High

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Court’s views  on these  proposals were never asked for. The High Court  was not  at all  consulted in  the matter of the Government’s proposal to appoint the respondents as District Judges. [624 G-H; 625A]      Secondly, the  Government, without  any  discussion  or deliberation with  the High  Court, refused  to  accept  its recommendation and  made the  appointment on  the  basis  of seniority.  Though   seniority  is   a  relevant  factor  in promoting subordinate  judges as  District Judges  it is not the only  criterion. The true test is the suitability of the candidate. If on a consideration of all the relevant factors the High Court comes to a conclusion that the performance of a senior  officer was  not meritorious enough to entitle him to promotion,  it cannot  be compelled  to recommend such an officer merely  on the  ground of seniority because the High Court   is    primarily   entrusted    with   the   judicial administration  in   the  State.  The  High  Court  has  the advantage of  judging the  suitability of  a person,  taking into consideration  his overall  performance in the previous job over a long period of time. [627 B-F]      After declining  to hear  the petition  on  grounds  of judicial propriety,  the High  Court granted the certificate with the  consent of the parties since the petition involved interpretation of Article 109 of the Constitution of Jammu & Kashmir. It  is unfortunate  that the  State,  after  having agreed to the course adopted by the High Court, should raise objections as  to the  validity of  the certificate  at  the stage of  appeal in  this Court.  Undoubtedly  the  question raised is  a substantial  question of  law of general public importance. Even  assuming that  the certificate  granted by the High  Court was not proper this Court could always grant special leave  where the  question  raised  deserves  to  be considered by it. [600 F-H; 601 A-B]      In the  instant case while declining to hear the matter the High  Court vacated the stay granted earlier, the result of which  was an  eventual refusal  to  entertain  the  writ petition, In  the facts  and circumstances of this case this is a  special case  in  which  this  Court  can  revoke  the certificate and  grant special  leave to the petitioners for filing an appeal, [601 D-E]      Since  the   question  involved   in   this   case   is substantially the same, both in the appeal as well as in the petition under  Article 32  of the Constitution the question of maintainability  of  the  writ  petition  becomes  purely academic. [601 H] 597      [Pathak,  J.   agreed  with  the  observations  of  the majority in  concurring the  incompetence of the certificate granted by  the High  Court and  the maintainability  of the writ petition  and in  the order  granting special  leave to appeal. On merits his Lordship agreed with the majority that the promotions made by the State Government were contrary to law inasmuch  as there was no consultation between the State Government and  the High  Court before  the promotions  were made.                                             [628 G-H; 629 A]      His Lordship,  however, did  not propose to express any opinion on  the appellants’  contention that  the promotions fall outside  the scope  of Article 233 of the Constitution. [629 B]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1349 of

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1982.      (From the  judgment and order dated the 8.3.1982 of the Jammu & Kashmir High Court in W.P. No. 668 of 1981.                             AND                Civil Appeal No. 1997 of 1982.      Appeal by  special leave  from the  judgment and  order dated the  8th March, 1982 of the Jammu & Kashmir High Court in W.P. No. 668 of 1982.                             AND             Writ Petitions Nos. 2186-82 of 1982.       (Under article 32 of the Constitution of India)      K.K. Venugopal  S.P. Gupta,  R. Satish,  E.C. Aggarwala and Krishnamanan,  for the  appellants in C.A. 1349/82 & for the Petitioners in WP. Nos. 2186-89 of 1982.      P.R. Mridul and Vimal Dave for the Respondents in Civil Appeals.      S.N. Kacker  and Altaf  Ahmed, for  the Respondents  in W.Ps.      S.N. Kackar  and Altaf  Ahmed for the Appellant in C.A. 1997/82.      The following Judgments were delivered      AMARENDRA NATH  SEN, J.  Four Petitioners  belonging to the cadre  of Subordinate  Judicial Service  in the State of Jammu & Kashmir and whose names were recommended by the High Court 598 for appointment as District Judges, filed a Writ Petition in the High  Court of Jammu & Kashmir (Writ Petition No. 668 of 1982) challenging  the validity  of appointment  as District Judges of  the Respondents  Nos. 3,4,5  and 6  made  by  the Governor of  the State.  In the said Writ Petitions had made the State through the Chief Secretary, Respondent No, 1, the High Court  of Jammu  & Kashmir  through the  Registrar, the Respondent No.  2 and  the four  persons who  were appointed District Judges by the Governor, as Respondents 3, 4, 5, and 6. A  learned Single Judge of the High Court directed notice to issue  to Respondents Nos 1 to 2 in the first Instance to show cause as to why the Petition should not be admitted and the Learned  Single Judge  further directed  that the matter should be  listed before  a larger  Bench for admission. The Learned Single  Judge also  granted stay of the operation of the order  appointing the  Respondents Nos.  3 to  6 pending disposal of  the admission matter. The matter came up before a Division  Bench on 27.2.1982 for admission of the petition and at  that time  a question  was raised  as to  whether it would be proper for the High Court to hear the Writ Petition since the Court on the administrative side had already taken a decision  which forms  the  basis  of  the  claim  of  the petitioners in  the Writ  Petition. On  27.2.1982 after  the arguments had been heard at length, the matter was adjourned to 8.3.1982  for  further  arguments.  It  appears  that  on 8.3.1982 when  the matter  came  up  for  further  arguments learned  Counsel  for  the  Respondents  submitted  that  in fairness and  on the grounds of judicial propriety, the High Court might  not hear  the Writ Petition. It appears that it was submitted  by the  learned counsel  for the  Petitioners that they  would have  no objection  to  that  course  being adopted provided  a certificate of fitness to file an appeal in the Supreme Court was granted in their favour. It appears that the  learned Counsel  for the  Respondents did not have any  objection   to  the   grant  of   this  prayer  of  the Petitioners. In  view of  the agreement  between the learned Counsel for the parties, the High Court declined to hear the petition on the ground of judicial propriety and vacated the order for  stay passed  on 27.11.1981;  and the  High  Court

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granted a  certificate of fitness to the Petitioners to file an appeal  in the  Supreme Court,  holding  that  the  point involved in the Writ Petition relating to the interpretation of Art. 109 of the Constitution of Jammu & Kashmir, raises a substantial question of law of general public importance and the case  was a  fit one  in which  a certificate of fitness should be granted, 599 Civil Appeal  No. 1349  of 1982  is the  Appeal filed by the Appellants on the strength of the certificate granted by the High Court.      Against the  Judgment and Order of the High Court dated 8.3.1982 granting  certificate  of  fitness  for  filing  an appeal in  this Court  after  declining  to  hear  the  Writ Petition and  after vacating  the stay,  the State  obtained Special Leave  from this Court to prefer an appeal and Civil Appeal No.  1997 of  1982 has  been filed  by the State with leave of  this Court  against this judgment and Order of the High Court dated 8.3.1982.      The Writ Petitioners in the High Court who are also the Appellants in Civil Appeal No. 1349 of 1982 in this Court by certificate granted  by the  High Court,  have filed  a Writ Petition in  this Court  under Art.  32 of  the Constitution substantially for  the same  reliefs  claimed  in  the  Writ Petition in  the High  Court and  now forming  the  subject- matter of  Civil Appeal  No. 1349  of 1982 in this Court. In the Writ  Petition filed  in this Court the Petitioners have prayed for  the issue  of a  Writ of  Certiorari or  in  the nature  thereof,   quashing  the  order  of  appointment  of respondents nos.  3 to  6 as  District Judges,  for a  Writ, Order or  Direction in  the nature  of quo warranto quashing the appointment  of Respondents  Nos. 3  to  6  as  District Judges and a Writ of Mandamus directing the State to appoint the  Petitioners   as  District   and  Sessions   Judges  in accordance with  the recommendations  made by the High Court of  Jammu   &  Kashmir.  The  Writ  Petition  filed  by  the Petitioners bears  writ Petition  Nos. 2186 to 2189 of 1982. This judgment will dispose of all the three matters.      As certain  preliminary objections have been raised, we consider it proper to deal with the same in the first place.      An  objection   has  been  taken  with  regard  to  the maintainability of  Civil Appeal  No. 1349  of 1982 filed in this Court  with certificate  granted by  the High Court. It has been  urged that  this  appeal  is  incompetent  as  the certificate  granted  by  the  High  Court  is  invalid  and improper. The  argument  is  that  the  High  Court  in  its judgment has  not decided  any  point  raised  in  the  Writ Petition and  the High  Court has  declined to deal with the matter on  the ground of judicial propriety. It is commented that the  only decision  of the High Court is the refusal on the part  of the High Court to hear the Writ Petition on the ground of judicial pro- 600 priety and  this decision  cannot be the subject matter of a certificate for  fitness for filing an appeal in the Supreme Court.      It is  on this  ground that  the State obtained Special Leave from this Court against the judgment of the High Court and Civil  Appeal No.  1997 of  1982 has  been filed  by the State with leave granted by this Court.      It is,  no doubt, true that the High Court did not deal with the  Writ  Petition  on  its  merits  as  it  had  been submitted before the High Court on behalf of the Respondents that the High Court should not hear the Writ Petition on the ground of  judicial propriety, because the decision taken by

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the High Court on the administrative side forms the basis of the claim  of the  Petitioners in  the Writ Petition and the Petitioners were  agreeable to  the course  being adopted by the High  Court, provided  certificate of fitness to file an appeal in the Supreme Court was granted in their favour. The judgment of  the High Court records that the counsel for the Respondents had stated that the respondents had no objection to the  grant of  the said prayer of the Petitioners and the judgment further  records that  in  view  of  the  agreement between the  counsel for  the  parties,  the  Court  granted certificate of  fitness to the Petitioners to file an appeal in the Supreme Court while declining to hear the petition on the ground of judicial propriety.      It is  true that  the High  Court  while  granting  the certificate had  not  gone  into  the  merits  of  the  writ petition, as  the  High  Court  had  declined  to  hear  the petition  on  the  ground  of  judicial  propriety.  It  is, however, to  be noted  that the  High Court  had adopted the said course  as the  said course  was  agreed  upon  by  the learned counsel  for the  parties. It may also be noted that the High  Court in  its judgment  has pointed  out that  the interpretation of  Art. 109  of the  Constitution of Jammu & Kashmir is  involved in  the  writ  petition  and  the  said question is  a substantial question of law of general public importance. It  appears to  us to be rather unfortunate that the State  should adopt this attitude and should raise these objections particularly  after having agreed before the High Court to  the certificate  being granted. It appears that in the peculiar  facts and circumstances of this case, the High Court which  found it  embarrassing to  deal with  the  writ petition particularly  in view  of the  objection raised  on behalf of the 601 State  on   the  ground   of  judicial   propriety,  granted certificate with  the agreement  of the parties and declined to hear  the matter.  We have  no doubt in our mind that the question raised  in  the  writ  petition  is  a  substantial question of  law of  general public  importance. If  on  the ground of  any technicality,  the certificate granted by the High Court  can be  said to  be not a proper one, this Court can always  grant special  leave  in  a  proper  case  which deserves to be considered by this Court. We may further note that the  High Court  while declining  to hear the matter on the ground  of judicial  propriety had also vacated the stay which had  been earlier  granted by the High Court. The real effect  of  the  order  amounts  to  a  virtual  refusal  to entertain the  writ petition.  The certificate  granted by a High Court  in any  case after declining to hear the same on any ground  may not be appropriate and may not be held to be valid and may have to be revoked. The present case, however, is a  fit case,  particularly in  view of the peculiar facts and circumstances of this case and the important question of law of  general public importance involved, where this Court should grant  special leave to the Petitioners. Accordingly, we revoke  the certificate  granted by the High Court and we grant special  leave to  the Petitioners  for the  filing of this appeal.  We treat  this appeal  as one filed with leave granted by this Court.      The other  preliminary objection  is with regard to the maintainability  of   the  Writ   Petition  filed   by   the Petitioners under  Art. 32  of the Constitution. It is urged that there  is no  violation of  fundamental rights  of  the Petitioners and the jurisdiction of this Court under Art. 32 of the  Constitution is  not, therefore,  attracted and  the writ petition  filed in  this Court  is not maintainable. It

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has, however,  been pointed out on behalf of the Petitioners that the  violation of  Arts. 14  and 16 of the Constitution has been  alleged and  the Writ  Petition under  Art. 32 is, therefore,  competent.   The  subject  matter  of  the  writ petition is  absolutely the  same as  that of the appeal No. 1349 of  1982 and  identical questions are involved in these two proceedings.  As we  have granted  special leave  to the Petitioners in  Civil Appeal No. 1349 of 1982, the merits of the case  have in  any event  to be decided. The question of maintainability of the writ petition involving the very same questions   becomes   purely   academic,   The   preliminary objections are  accordingly disposed  of. We  now proceed to deal with the case on its merits. 602      The validity  of the appointment of respondents 3, 4, 5 and 6  as District Judges is the subject matter of challenge in the  writ petition  filed in  the High  Court and also in this Court.      Mr. Venugopal,  learned counsel  appearing on behalf of the appellants who filed the writ petition in the High Court and who  have also  filed the  writ petition  in this Court, have urged  two main  grounds in support of their contention that the  appointment of  respondents nos. 3, 4, 5 and 6 are illegal and invalid.      (1) The  first ground  of attack  is that  on a  proper consideration of  Art. 109  and Art. 111 of the Constitution of Jammu  and Kashmir,  the Governor does not have any power to appoint  District Judges  from the  cadre of  Subordinate Judges of  the State  and this  power is  vested in the High Court.      (2) The  second ground  of attack is that even if it be held on  a consideration  of the aforesaid Articles that the Governor is the authority competent to make the appointment, the appointment must be made by the Governor in consultation with the  High Court;  and, as  in  the  instant  case,  the appointments have  been made  without any  consultation with the High  Court, the  appointments must  be held  to  be  in breach of  the  constitutional  provisions  and,  therefore, illegal and invalid.      Mr. Venugopal  has drawn  our attention to Art. 109 and Art. 111  of the Constitution of Jammu and Kashmir. The said two Articles read as follows:-           "109.  Appointment   of   district   Judges.   (1)      Appointment of  persons to  be,  and  the  posting  and      promotion of district Judges in the State shall be made      by the Governor in consultation with the High Court.           (2) A  person not  already in  the service  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  pleader and  is recommended  by  the  High      Court for appointment."           "111. Control  over subordinate courts-The control      over district  courts and  courts  subordinate  thereto      includ- 603      ing the  posting and  promotion of,  and the  grant  of      leave to,  persons belonging to the judicial service of      the State  and holding any post inferior to the post of      district judge  shall be  vested in the High Court, but      nothing in  this section  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 the conditions of      his service prescribed under such law.

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    Mr.  Venugopal   has  rightly   pointed  out  that  the aforesaid two  Articles of  the Constitution  of  Jammu  and Kashmir  correspond   to  Art.  233  and  Art.  235  of  the Constitution of  India. Mr.  Venugopal has  fairly submitted that though  the aforesaid  two Articles  109 and 111 of the Constitution of  Jammu  &  Kashmir  have  not  come  up  for consideration in  any particular decision, the corresponding two  articles   in  the  Constitution  of  India  have  been considered and  interpreted in a number of decisions of this Court and  the view that has been expressed by this Court on the interpretation  of Arts. 233 and 235 of the Constitution of India  is contrary to the view he wants us now to accept. Mr. Venugopal  has submitted  that the  view that  has  been expressed by  this Court  in the  earlier decision should be reconsidered in  the interest of judicial administration and for safeguarding  the independence  of the  judiciary. It is his submission  that when a judicial officer in the category of  subordinate  Judges  is  promoted  to  the  category  of District Judges  and becomes  a District  Judge, the Officer concerned is  so appointed  as District  Judge by promotion. Such appointment  by promotion,  according to Mr. Venugopal, clearly comes  within Art.  235 of the Constitution of India which  deals   with  control  over  subordinate  courts  and provides:-           "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 604      service or  as authorising  the High Court to deal with      him otherwise than in accordance with the conditions of      his service prescribed under such law."      Mr. Venugopal  has also drawn our attention to Art. 233 which corresponds to Art. 109 of the Constitution of Jammu & Kashmir. Art. 233 reads as follows:           "(1) Appointment of persons to be, and the posting      and promotion of, 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."      Mr. Venugopal  argues that  Art.  233  is  intended  to govern the  appointment of persons to the District Judges in any State  and the posting and promotion of District Judges. It is his argument that Art. 233 does not deal with the case of promotion of subordinate Judges to the post of a District Judge and  the promotion of person belonging to the judicial service of  the State  and holding  any post inferior to the post of  a District  Judge is  vested in  the High  Court by virtue of  the provisions  contained  in  Art.  235  of  the Constitution of  India which  corresponds to Art. 111 of the Constitution of Jammu & Kashmir.      It is  to be  noted that  in the case of State of Assam and Anr.  v. Kuseswar  Saikia and  ors.(1) this Court had to deal  with   a  similar   situation  and   consider  similar arguments. The State of Assam and the Legal Secretary to the

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Govt. of  Assam filed  an appeal  in this  Court against the judgment and order of the High Court of Assam, challenging a writ of  quo warranto  issued  by  the  High  Court  against Upendra Nath Rajakhowa, District and Sessions Judge, Darrang at Tejpur,  declaring that  he was not entitled to hold that office. 605 The writ  was issued  by the  High Court  at the instance of Respondents Nos.  1, 2,  3 in  the appeal before the Supreme Court and  these Respondents  on conviction  by Upendra Nath Rajakhowa in  a Sessions  Trial challenged  their conviction inter alia  on  the  ground  that  Shri  Rajakhowa  was  not entitled to  hold the  post of  District and Sessions Judge, Darrang as  his appointment  as District  Judge was invalid. The High  Court held  that the  appointment of  Rajakhowa as District and  Sessions Judge  was void  because the Governor had no  power to  make the  appointment under Article 233 of the Constitution  and Shri  Rajakhowa could only be promoted by the  High Court  under Article 235. According to the High Court, this  was a case of ’promotion’ of a person belonging to the  judicial service of the State and the High Court was the authority  to make  the ’promotion’  under Article  235. This view  of the High Court was negatived by this Court and this Court allowed the appeal and held at pp. 931-33:           "Chapter VI  of Part  VI of the Constitution deals      with Subordinate  Courts. The  history of  this Chapter      and why  judicial services  came  to  be  provided  for      separate from  other services has been discussed in The      State of  West Bengal v. Nripendra Nath Bagchi(1). This      service was  provided for separately to make the office      of  a  District  Judge  completely  free  of  executive      control. The  Chapter contains  six  articles  (233  to      237). We are not concerned with Art. 237 in the present      case. Article  235 vests  in the High Court the control      over District  Courts and  Courts subordinate  thereto,      including the  posting and promotion and grant of leave      to persons belonging to the judicial service of a State      and holding  any post  inferior to the post of District      Judge. By  reason of  the definitions given in Art. 236      the  expression  ’judicial  service’  means  a  service      consisting exclusively  of persons intended to fill the      post of  District Judge  and other Civil Judicial posts      inferior to  the District  Judge,  and  the  expression      ’District Judge’  includes among  others an  additional      District Judge  and an  additional Sessions  Judge. The      promotion of  persons belonging to the judicial service      but holding  post inferior to a District Judge vests in      the High Court. As the 606      expression  ’District  Judge’  includes  an  Additional      District Judge  and an  Additional Sessions Judge, they      rank above  those persons  whose promotion is vested in      the High Court under Art. 235. Therefore, the promotion      of  persons   to  be   additional  District   Judge  as      Additional Sessions  Judges is  not vested  in the High      Court. That  is the function of the Governor under Art.      233. This  follows from  the language  of  the  Article      itself:      (a)  Appointments of persons to be, and the posting and           promotion of,  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. The language  seems to have given trouble to the High Court. The High Court holds:

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         (1) ’appointment  to be’ a District Judge is to be      made by  the Governor  in consultation  with  the  High      Court vide Art. 233; and           (2)  ’promotion  of’  a  District  Judge  and  not      promotion ’to  be a  District Judge’ is also to be made      by the  Governor in  consultation with  the High  Court      vide Art. 233.           The High  Court gives  the  example  of  selection      grade posts  in the  Cadre  of  District  Judges  which      according to  it is  a case  of promotion of a District      Judge.           The reading  of the  article by  the High Court is      with respect,  contrary to  the grammar and punctuation      of the  article. The  learned Chief  Justice  seems  to      think  that   the  expression  ’promotion  of’  governs      ’District Judges’  ignoring the  comma that follows the      word ’of’.  The article, if suitably expanded, reads as      under:           ’Appointments of  persons to  be, and  the posting           and promotion  of (persons to be), District Judges           etc.’ 607           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      Court. What  is said  of District  Judges here  applies      equally to  additional District  Judges and  Additional      Sessions Judges. Therefore, when the Governor appointed      Rajkhowa an  Additional District Judge, it could either      be an  ’appointment’ or  a promotion under Article 233.      If it  was an appointment is was clearly a matter under      Art. 233. If the notification be treated as ’promotion’      of Rajkhowa  from the  junior  service  to  the  senior      service it  was a  ’promotion’ of  a  person  to  be  a      District  Judge   which  expression,  as  shown  above,      includes an  Additional District  Judge. In our opinion      it was  the latter.  Thus there  is no  doubt that  the      appointment of Rajkhowa as Additional District Judge by      the Governor  was a  promotion and  was made under Art.      233, it  could not  be made  under Art. 235 which deals      with posts subordinate to a District Judge including an      additional District  Judge and  an additional  Sessions      Judge. The  High Court was in error in holding that the      appointment  of   Rajkhowa  to   the  position   of  an      additional District Judge was invalid because the order      was made by the Governor instead of the High Court. The      appointment  or   promotion  was  perfectly  valid  and      according to the constitution."      In the  case of  State of West Bengal v. Nripendra Nath Bagchi (1),  this Court  while considering Arts. 233 and 235 of the  Constitution elaborately  traced the  background and the history of the constitu- 608 tional provisions  relating to  the judiciary and this Court held at page 786:           "Articles  233  to  235  make  a  mention  of  two

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    distinct powers,  The first is power of appointments of      persons, their  postings and promotion and the other is      power of  control. In  the case of the District Judges,      appointments of persons to be and posting and promotion      are to be made by the Governor but the control over the      District Judge is of the High Court." The view  that on proper construction of Article 233 and 235 the  appropriate   authority  to  make  the  appointment  of District Judges  is the  Governor and not the High Court has also been reiterated by this Court in later decision of this Court. In a  recent decision  of this  Court in  the case  of Chief Justice of  Andhra Pradesh  and Ors.  v. V.A.  Dixitulu  and Ors.(1) 5 Judges Bench of this Court held at page 46:           "Article 233  gives the  High Court  an  effective      voice in the appointment of District Judges. Clause (1)      of the  Article peremptorily requires that appointments      of persons  to be,  and the  posting and  promotion  of      district judges’  shall be  made  by  the  Governor  in      consultation with  the High  Court. Clause  (2) of  the      Article provides  for direct  appointment  of  District      Judges from  Advocates or  pleaders of  not  less  than      seven years  standing,  who  are  not  already  in  the      service of  the State or of the Union. In the matter of      such direct  appointments, also,  the Governor  can act      only  on   the  recommendation   of  the   High  Court.      Consultation with  the High  Court under Article 233 is      not an  empty formality.  An appointment made in direct      or  indirect   disobedience  of   this   constitutional      mandate, would be invalid. ’Service’ which under clause      (1) of  Article 233  is the first source of recruitment      of District  Judges by  promotion means  the  ’Judicial      services’ as defined in Article, 236." In another recent decision of this Court in the case of Hari Datt Kainthla  & Anr.  v.  State  of  Himachal  Pradesh  and Ors.(2) 609 this Court  referred to  earlier decision  of this Court and observed at page 372:           "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...."      We have to note that on a proper interpretation of Art. 233 and  235 of the Constitution this Court has consistently held that  the appointing authority is the Governor and this view has held the field for ever two decades. In our opinion this is  the correct  view on  proper interpretation  of the said articles  and requires no reconsideration. The argument of Mr.  Venugopal that  this interpretation will lead to the subservience of  the judiciary  and the  independence of the judiciary will be undermined is not convincing, as the power to make  the appointment conferred on the Governor has to be exercised by  him in  consultation with the High Court. This provision regarding  exercise of  power by  the Governor  in consultation  with   the  High   Court  is  incorporated  to safeguard the independence of the judiciary. We have earlier pointed out  that Art.  109 and Art. 111 of the constitution of Jammu  & Kashmir  correspond to  Art. 233  and 235 of the Constitution of India. In view of the interpretation of Art. 233 and  235 of the Constitution of India consistently given by this Court, and with which we are in entire agreement, we hold that  on a proper interpretation of Art. 109 and 111 of the Constitution  of Jammu  and Kashmir, the Governor is the authority competent  to appoint  the District Judges and the

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power of appointment of District Judges is not vested in the High Court.  The first  contention of  Mr. Venugopal cannot, therefore, be accepted and is negatived.      We now  proceed  to  deal  with  other  contentions  of Mr.Venugopal, namely, even if the Governor be held to be the appointing authority the appointment by the Governor must be made in  consultation with the High Court and in the instant case, the  appointments of the District Judges have not been made  in   consultation  with   the  High   Court  and   the appointments must,  therefore, be  held to  be  invalid  and illegal.      It is  necessary  to  state  certain  facts  before  we proceed to  consider this  question. Four  vacancies for the posts of  District and  Sessions Judges  in the State became available for being filled up 610 out of  12 Judicial Officers who were eligible for selection to the  posts in  questions. The  Judicial Officers eligible for selection in the order of seniority are:           1. Shri Qazi Mohd. Muzaffar-Ud-Din           2. Th. Pavitar Singh           3. Shri Harcharan Singh Bahri           4. Shri Sheikh Maqbool Hussain           5. Shri G.L. Manhas           6. Shri M.M. Gupta           7. Shri H.N. Mehra           8. Shri Jagmohan Gupta           9. Shri Mohd Yasin Kawoosa           10. Shri O.P. Sharma           11. Shri Bashir-Ud-Din           12. Shri Sudesh Kumar Gupta      The High  Court at  a meeting of all the Judges held on 29.8.1981 considered  the matter  and the  High Court taking into consideration  the merit  and suitability of all the 12 eligible officers  in the  cadre of  sub-judges,  found  the following Sub-Judges  fit to  be promoted  as  District  and Sessions Judges against the available vacancies:           1. Shri M.M. Gupta           2. Shri O.P. Sharma           3. Shri Bashir-Ud-Din           4. Shri Sudesh Kumar Gupta      It is to be noticed that the respective position of the aforesaid officers  in the  seniority list was 6, 10, 11 and 12. On  31.8.1981 the  Registrar of the High Court forwarded to the  Government the  recommendations of the High Court of the said  four Judicial Officers for filling up the said for vacancies. The  letter of the Registrar to the Law Secretary to the Government reads as follows: 611      "Shri G.H. Nehvi,      Secretary to Govt.,      Law Department,      Jammu & Kashmir Govt.,      Srinagar.      No. 9245/GS dated 31.8.1981      Sub :-    Appointments  and   posting  of   District  &                Sessions Judges      Sir,           There are four vacancies available in the cadre of      District & Sessions Judges: two of them being available      on account of deputation of Shri Ghulam Hassam Nehvi as      Law Secretary and the creation of Additional District &      Sessions Judge’s  Court at  Ramben and,  two others  on      account of  the proposed  retirement of  M/s.  Mohammad      Saleem  Durrani   and  Mohammad   Shaffi.  The   matter

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    regarding replacement  was considered in the meeting of      the Court  held on  28.8.1981. The Court considered the      comparative merit,  ability and  suitability of all the      eligible officers  in the cadre of Sub-Judges and found      the following sub-judges fit to be promoted as District      & Sessions Judges against the available vacancies:      (1)  Shri M.M. Gupta at present Third Civil Subordinate           Judge, (Excise Magistrate), Jammu;      (2)  Shri O.P.  Sharma, at  present Sub  Judge (C.J.M.)           Jammu.      (3)  Shri Bashir-ud-Din, at present, Sub-Judge, Special           Judicial Mobile Magistrate, Traffic, Kashmir.      (4)  Shri S.K.  Gupta, at  present,  Sub-Judge  (Deputy           Registrar, Jammu Wing), Jammu.      The four  therefore  may  be  promoted  as  officiating District and  Sessions Judges and that their postings may be ordered as under :- 612      (1)  Shri M.M.  Gupta,  Second  Additional  District  &           Sessions Judge,  Srinagar (Single  Member Tribunal           for Anti-Corruption Cases, Kashmir)      (2)  Shri  O.P.  Sharma,  District  &  Sessions  Judge,           Rajouri;      (3)  Shri Bashir-ud-Din,  Second Additional  District &           Sessions Judge,  Jammu (Single Member Tribunal for           Anti-Corruption cases, Jammu Province);      (4)  Shri  S.K.  Gupta,  1st  Additional  District  and           Sessions  Judge,   Srinagar  (Special  Judge  Anti           Corruption, Kashmir)      I am,  therefore, to  request you  kindly to obtain the sanction of  the competent  authority and convey the same to me as early as possible, Yours faithfully      Sd/-      (S.M. Rizvi)      Registrar 31.8.1981      In reply  to the  said letter of the Registrar, the Law Secretary addressed as follows :-      No. LD (A) 81/143                                            Sept. 15,1981, My dear Rizvi,           Please refer  to your  letter  No.  9245/GS  dated      31.8.1981,  regarding   appointment  and   posting   of      District &  Sessions Judges.  I have  been directed  to      request you kindly to send us copy of the resolution of      the Hon’ble  High Court  on the  subject and  also  the      Annual  Confidential  Reports  for  the  last  5  years      pertaining to  the officers  proposed for promotion and      also those who are superseded. 613      With regards,      Yours      Sd/- (G.H. Nehvi)      Shri S.M. Rizvi.      Registrar,      High Court of J & K,      Srinagar"      It appears  that on  24.9.1981, the  Under Secretary to      the Government,  Law Department, had sent a reminder to      the Registrar  of the  High Court drawing his attention      to the  earlier letter  dated 15.9.1981. On 5.10.81 the      High Court  sent a  detailed letter  to the  Government      justifying the selection made by the High Court setting

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    out in  detail the  reasons  for  supersession  of  the      senior Officers.  In this  long letter, running into 15      pages (pp.  24-39) in  paper book  of C.A.  No. 1997 of      1982), the  High Court  made its  comments on  all  the      officers who  have been superseded. The High Court also      forwarded a copy of the resolution dated 29.8.1981. The      concluding portion of this long letter reads :-           "I would,  therefore, request  you kindly  to have           the matter  expedited and communicate the sanction           of the  Governor to  the proposal  already made as           early  as  possible.  The  ACRs  of  the  Officers           concerned for the years 1976-77, 1977-78 and 1978-           79 as  also the  court resolution  dated 29.8.1981           are enclosed herewith as desired." The resolution  of the  Full Court which was sent along with the letter may be set out: 614 LIST OF ITEMS DISCUSSED IN JUDGES MEETING HELD ON 29.8.1981                           PRESENT: The Hon’ble Mufti Baha-Ud-Din              Acting Chief Farooqui                                   Justice The Hon’ble Justice Dr. A.S. Anand              Judge The Hon’ble Mr. Justice I.K. Kotwal             Judge The Hon’ble Mr. Justice G.M. Mir                Judge             Preamble                            Resolved 3/-Appointment of Shri Ghulam        3/- After having consi- Hassan Nehvi, Distt. & Sessions      dered the comperative Judge, as Law Secretary and crea-    merit, ability and sui- of Additional  District Court  at        tability of all the officers in Ramber filling up of     officers in the cadre the vacancy in this behalf           of Sub-Judges we are of                                             the opinion that                                      the following sub-                                      Judges are fit to be                                       promoted  as  District                                         &  Sessions  Judges,                                        against the available                                      vacancies:-      1.   Shri M.M. Gupta at present Third Civil Subordinate           Judge (Excise Magistrate, Jammu)      2.   Shri O.P. Sharma, Sub-Judge, C.J.M. Jammu.      3.   Shri  Bashir-Ud-Din,   Sub-Judge  (Special  Mobile           Magistrate Traffic), Srinagar.      4.   Shri  Sudesh   Kumar  Gupta,   Sub-Judge   (Deputy           Registrar, Jammu). We direct  that recommendation shall be made to the Governor accordingly. We further  direct that  their place of postings shall be as follows:-      1.   Shri M.M.  Gupta, Second Addl. Dist. Judge (Single           Member Tribunal), Srinagar. 615      2.   Shri  O.P.  Sharma,  District  &  Sessions  Judge,           Rajouri.      3.   Shri Bashir-Ud-Din,  2nd Addl. District & Sessions           Judge, SM. T. Jammu)      4.   Shri  S.K.  Gupta  (Ist  Additional  District  and           Sessions Judge)  Special  Judge,  Anti  Corruption           Srinagar.      The further  recommendation shall  go to  the  Governor accordingly.                          Sd/- Hon’ble Acting Chief Justice                          Sd/- Hon’ble Justice Dr. A.S. Anand                Sd/- Hon’ble Mr. Justice I.K. Kotwal                          Sd/- Hon’ble Mr. Justice G.M. Mir

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    It appears  that the  meeting was  attended by  all the Judges of the High Court.      On the  16th  November,  1981,  the  Secretary  to  the Government, Law  Department, addressed  the following letter to the Registrar of the High Court:-                                            No. LD (A) 81/143 Dated: 16.11.1981 The Registrar, High Court of J & K, Jammu.      Subject:-Appointment of District and Sessions Judges. Sir,      The Governor  has been pleased to approve the promotion of the  following Judicial Officers as District and Sessions Judges:      1. Qazi Mohammad Muzaffar-Ud-Din.      2. Shri Pavitar Singh. 616      3. S. Harcharan Singh Bahri.      4. Sheikh Maqbool.           The appointment  of Qazi  Mohammed Muzaffar-ud-Din      will however,  be deferred  till he  is cleared  of the      charges against  him. A  post for  this purpose will be      kept vacant  and  in  case  he  is  exonerated  of  the      charges, his  appointment will  be given  retrospective      effect from  the  date  of  the  issue  of  the  orders      regarding other three.           Accordingly, a  separate proposal  may be  sent by      the High  Court regarding  the  post  of  the  promoted      Officers.                                            Yours faithfully. Sd/- Secretary                   to                    Government Law Department.      It appears  that after  the recommendations made by the High Court  and the  detailed reasons  by the High Court for recommending the  petitioners in  supersession of  the other officers had  been for-warded to the State Government by the High Court,  the State  Cabinet constituted  a sub-Committee which  had   gone  into   the  matter   and  had   made  its recommendations.  It  appears  that  on  the  basis  of  the recommendations made  by  the  Sub-committee  of  the  State Cabinet the  letter of the Law Secretary dated 16th November 1981 to  the Registrar  of the  High  Court  was  addressed, informing the  High Court  of the Governor’s approval to the promotion of  Respondents Nos. 3, 4, 5 and 6 as District and Sessions Judges.      On receipt  of the  aforesaid  communication  from  the Government dated 16.11.1981 the High Court on 24.11.1981, at a meeting of the Judges recorded the following minutes:-           "Copy  of  extract  from  the  Minutes  of  Judges      meeting held on 24.11.1981              Preamble                          Resolved      1. Law Secretary’s letter     1) Considered.The posting         No. LD(A) 81/143 dated        of the Offices is pro-         16.11.1981 regarding          posed as under :- 617         appointment of S/Shri     i)  Shri Pavitar Singh         Qazi Mohd. Muzaffar-          -District and Sessions         UD-Din, Pavitar Singh,        Judge, Leh-Kargil.         H.S. Bahri and Sheikh    ii)  S.Harcharan Singh         Maqbool Hussain as            Bahri-District &         District and Sessions         Sessions Judge,         Judge...Submission of         Rajouri.         proposal regarding their iii) Sheikh Maqbool Hussain

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       posting.                      1st Addl. District &                                       Sessions Judge,                                       Srinagar. It shall be                                       pointed out to the                                       Government that the                                       Communication of the                                       posting shall not be                                       deemed as consultation                                       with the Court in                                       terms of Section 109                                       of the Constitution of                                       Jammu and Kashmir in                                       so far as the                                       promotion of these                                       officers is concerned. Thereafter, on 26.11.1981, the following order was passed by the State Government:-           "Government   of    Jammu   and    Kashmir   Civil           Secretariat: Law Department Sub:-Officiating appointment of District & Sessions Judges.        ORDER NO. 717-LD (A) of 1981 dated 26.11.1981      Sanction is  accorded to  the officiating appointing of the following  sub-Judges as District and Sessions Judges in the scale  of Rs. 1100-1600 against available vacancies with the posting  as shown  against each in consultation with the Hon’ble High Court:-      (1) Shri Pavitar Singh -  District and Sessions Judge,                                Leh-Kargil      (2) Shri Harchran Singh -  District and Sessions Judge,                                 Rajouri 618      (3) Sheikh Maqbool      -  Ist Additional District and          Hussain                Sessions Judge, Srinagar,                                 Special Judge, Anti Corrup-                                 tion, Kashmir, Srinagar.           By order of the Governor                                     Sd/- G.H. Nehvi                                   Secretary to Government                                      Law Department.      Mr. Venugopal,  learned counsel for the Petitioners has argued that  the High  Court after  due consideration of the respective merits  and  suitability  of  all  the  officers, recommended the  names of the petitioners for appointment as District  Judges  and  thereafter  at  the  request  of  the Government, the High Court had on 5.10.1981 forwarded to the Government detailed  reasons and  the High  Court  had  also forwarded the  confidential reports  of the  officers  which were in  the possession  of the  High Court.  Mr.  Venugopal points out  that without  any further  reference to the High Court, the  State Government on the basis of the report of a Cabinet   Sub-Committee,   chose   not   only   ignore   the recommendations made  by the  High Court but also to appoint respondents nos.  3 to  6 without  any kind  of consultation with the  High Court  about  the  appointment  of  the  said respondents.  Mr.   Venugopal  has  argued  that  the  State Government should  as a rule accept the recommendations made by the  High Court.  He contends that in any event the State Govt. cannot  appoint any  officer as  District and Sessions Judge  without   consultation  with   the  High   Court   as consultation  with   the  High   Court  is   the   mandatory requirement of  Art. 109  of the  Constitution of  Jammu and Kashmir which empowers the Governor to make the appointments in consultation with the High Court. It is the contention of Mr. Venugopal that this requirement of consultation with the High Court  constitutes a  salutary safeguard for preserving

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the  independence   of  the   judiciary.  The   consultation envisaged must  be full  and effective and the point of view of the  High Court  in the  matter of  appointment has to be discussed, understood and properly appreciated and generally accepted. Mr.  Venugopal has  argued that the responsibility of judicial  administration in  the State basically rests on the High  Court and  the High Court for properly discharging its  functions,   must  necessarily   have  proper  judicial officers competent  to discharge  the duties to be entrusted to them.  It is  the argument of Mr. Venugopal that the High Court which has complete control over its judicial officers 619 has all  relevant records of the officers and is in a proper position to  understand and appreciate their performance and merits, must  necessarily  be  the  best  Judge  as  to  the suitability for  promotion of  these  officers  as  District Judges.      In this  connection Mr.  Venugopal has  referred  to  a number  of  decisions  of  this  Court.  Mr.  Venugopal  has submitted that  in  the  instant  case,  in  the  matter  of appointment of  the Respondents Nos. 3, 4, 5 and 6 there has not been  any kind  of consultation  with the High Court and the  said   respondents  have  been  appointed  without  any reference to  the High  Court  and  even  without  a  formal intimation to  the High  Court that the recommendations made by  the  High  Court  were  not  acceptable  and  the  State Governments was  going to  appoint Respondents  Nos. 3  to 6 herein. It  is the  submission of  Mr. Venugopal  that these appointments must  therefore, be held to be violative of the Constitution and  must, therefore, be held to be invalid and illegal and should be quashed.      Mr. Kacker,  learned counsel appearing on behalf of the State, has submitted that it is open to the State Government not to  accept the recommendations of the High Court and the Governor may  refuse to  accept the  recommendations made by the High Court with out assigning any reason whatsoever. Mr. Kackar argues  that the  requirement of  the Constitution is that the  appointment of  District Judges by the Governor of the State  must be made by him in consultation with the High Court. It  is his  argument that  the consultation  does not mean either  concurrence or recommendation and no particular form or  procedure is  also necessary  to be followed in the matter of  this consultation. He submits that in the instant case, the  State Government  had asked  for all the relevant materials which were in the possession of the High Court and the High  Court had  forwarded to  the State  Government the annual confidential reports and other materials and also the comments of  the High  Court with  regard to  each and every candidate on  the eligible  list. Mr.  Kacker contends  that consideration by the State Government of all these materials placed  by   the  High  Court  results  in  and  amounts  to consultation within  the meaning  of the Article. Mr. Kacker submits that  on a consideration of all the materials issued by the  High Court,  the State  Government  decided  not  to accept the  recommendations  made  by  the  High  Court  and decided to appoint Respondent Nos. 3, 4, 5 and 6 as District Judges. It is the submission of Mr. 620 Kacker that  there has  been consultation within the meaning of the Article and there has been sufficient compliance with the Constitutional requirement as to consultation.      In  the  case  of  Chandra  Mohan  v.  State  of  Uttar Pradesh,(1) this  Court while  considering Art.  233 of  the Constitution observed  after setting out Art. 233 (1) at pp. 82-83 :-

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         "We are  assuming for the purpose of these appeals      that the  ’Governor’ under  Art. 233  shall act  on the      advice of  the Ministers.  So the expression ’Governor’      used in  the Judgment  means  Governor  acting  on  the      advice of  the Ministers. 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      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.  This mandate  can be disobeyed by the Governor      in two  ways, namely,  (i) by  not consulting  the High      Court at all, and (ii) by consulting the High Court and      also other  persons. In  one case he directly infringes      the mandate  of the  Constitution and  in the  other he      indirectly does  so far  his mind  may be influenced by      other persons  not entitled  to advise  him. That  this      constitutional mandate has both a negative and positive      significance is  made clear  by the other provisions of      the Constitution. Wherever the Constitution intended to      provide more  than one  consultant, it has said so: See      Arts. 124  (2) and  217 (1)  Wherever the  Constitution      provided  for   consultation  of   a  single   body  or      individual it  said so: See Art. 222, Art. 124 (2) goes      further and  makes a  distinction between  persons  who      shall be  consulted and  persons who  may be consulted.      These provisions  indicate that  the duty to consult is      so integrated  with the  exercise of the power that the      power can  be exercised  only in  consultation with the      person or persons designated therein. To state it 621      differently,  if   A  is  empowered  to  appoint  B  in      consultation with C he will not be exercising the power      in  the   manner  prescribed   if  he   appoints  B  in      consultation with C and D". In the  case of Chandramouleshwar Prasad v. Patna High Court & Ors.,(1) a 5 Judge Bench of this Court held at p. 674-675:           "consultation with  the High  Court under Art. 233      is not  an empty  formality. So  far  as  promotion  of      Officers to  the cadre  of District  Judge is concerned      the High Court is best fitted to adjudge the claims and      merits of  persons to  be considered for promotion. The      Governor cannot  discharge the  function under Art. 233      if  he  makes  an  appointment  of  a  persons  without      ascertaining the  High Court’s  views in regard thereto      It was  strenuously contended on behalf of the State of      Bihar  that   the  materials  before  the  Court  amply      demonstrate that  there had  been consultation with the      High Court  before the  issue of  the  notification  of      October 17,  1968. It  was said that the High Court had      given the  Government its  views  in  the  matter;  the      Government was  posted with all the facts and there was      consultation sufficient for the purpose of Art. 233. We      cannot accept this. Consultation or deliberation is not      complete or  effective before  the parties thereto make      their respective  points of  view  known  to  other  or      others and  discuss and  examine the relative merits of      their views. If one party makes a proposal to the other

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    who has  a counter  proposal in  his mind  which is not      communicated to  the proposer  the  direction  to  give      effect to  the counter  proposal without anything more,      cannot be  said to have been issued after consultation.      In our  opinion, the  notification of  October 17, 1968      was  not   in  compliance   with  Art.   233   of   the      Constitution.  In   the  absence  of  consultation  the      validity of  the notification  of  17th  October,  1968      cannot be sustained.      In the  case of High Court of Punjab and Haryana etc.v. State of  Haryana,(2) the  view expressed  by this  Court in Chanderamouleshwar 622 prasad’s case (supra) noted by another Constitution Bench of 5 Judges at p. 377:           "In Chandramouleshwar Prasad v. Patna High Court &      Ors. [1970]  2 SCR  666 it was said that under Art. 233      the appointment  of person  to be  District Judge rests      with the  Governor but  he must make the appointment in      consultation with  the High  Court. The Governor should      make up his mind after there has been deliberation with      the High  Court. The  consultation is  not complete  or      effective  before   the  parties   thereto  make  there      respective points of view known to the other or others.      It was  said that  the Governor  cannot  discharge  his      functions under Article 233 if he makes the appointment      of a  person without ascertaining the points of view of      the High Court with regard thereto."      In the case of Chief Justice of Andhra Pradesh and Ors. v. V.A.  Dixitulu and  Ors. (supra),  the same view has been reiterated in the following observation at p. 46:-           "Article 233  gives the  High Court  an  effective      voice in the appointment of District Judges. Clause (1)      of the Article peremptorily requires that ’appointments      of persons  to be,  and the  posting and  promotion of,      district Judges"  shall be  made by  the  Governor  ’in      consultation with  the High  Court. "Clause  (2) of the      Article provides  for direct  appointment  of  District      Judges from  advocates or  pleaders of  not  less  than      seven years  standing,  who  are  not  already  in  the      service of  the State or of the Union. In the matter of      such direct  appointments, also,  the Governor  can act      only  on   the  recommendation   of  the   High  Court.      Consultation with  the High Court under Art. 233 is not      an empty  formality. An  appointment made  in direct or      indirect disobedience  off his  constitutional mandate,      would be invalid (See Chandra Mohan v. State of U.P.(1)      and Chandramouleshwar  v. Patna High Court(2) ’Service’      which under  clause (1)  of Article  233 is  the  first      source of  recruitment of District Judges by promotion,      means the  ’judicial services’  as defined  in  Article      236." 623      In a  recent  decision  of  this  Court  in  Hari  Datt Kainthla &  Anr. v. State of Himachal Pradesh & Ors. (supra) this Court reaffirmed the views earlier expressed at p. 372- 373:           "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

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    appointment  of  each  person  as  Distt.  Judge  which      includes an  Additional Distt  Judge  and  the  opinion      expressed by  the High Court must be given full weight.      Art.  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 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 that  the      Minister or  the Governor.  In Candra Mohan v. State of      Uttar  Pradesh   and  Ors.   (supra)  at   page  83,  a      Constitution Bench of the Court observed as under:           "The Constitutional mandate is clear. The exercise      of the power of appointment by the Governor is condi- 624      tioned 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."      This view was reaffirmed in Chandramouleshwar Prasad v. Patna High Court & Ors. (supra) 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."      The facts  which we have earlier set out establish that after the  High Court  had forwarded its recommendations and thereafter sent  the detailed  comments alongwith  a copy of the resolution  as requested  by the  Government. The  State Government without  any further intimation to the High Court or without  any kind  of discussion  with the High Court had made the  appointment of  respondents Nos.  3, 4,  5 and  6, ignoring the  recommendations made  by the  High Court.  The facts further go to indicate that on receipt of the detailed comments and  the resolution  a  cabinet  sub-committee  had considered the matter and on the recommendations made by the Cabinet sub-committee,  the Governor  did  not  act  on  the recommendations  made   by  the  High  Court  but  made  the appointments on  the recommendations  of the  sub committee. The  recommendations   of  the   sub-committee  were   never communicated to  the High Court and the State Government had not discussed  or sought  the views of the High Court on the findings and  recommendations of  the cabinet sub-committee. It is,  therefore, abundantly  clear from  the facts  of the present case that the counter-proposals sought to be made by

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the Government  in the  matter  of  appointment  were  never communicated to the High Court and the High Court’s views on the said  proposals of  the Government  were never asked for and the 625 High Court  was not  at  all  consulted  in  the  matter  of Government’s proposals  to appoint  respondents Nos. 3, 4, 5 and  6   as  District   Judges.  It  is  well  settled  that consultation or  deliberation is  not complete  or effective before the  parties thereto  make their respective points of view known  to the  other or  others and discuss and examine the relative  merits of  their views.  If one  party makes a proposal to  the other  who has  a counter  proposal in  his minds  which  is  not  communicated  to  the  proposer,  the direction to  give effect  to the  counter proposal  without anything more,  cannot be  said  to  have  been  done  after consultation. We  are, therefore, of the opinion that in the instant case  there  has  not  only  been  no  effective  or complete consultation  but, in fact, there has been complete lack  of  consultation  in  the  matter  of  appointment  of Respondents Nos.  3, 4,  5 and  6. We  must, therefore, hold that the  appointment of  the Respondents Nos. 3, 4, 5 and 6 in the  absence of  consultation with the High Court must be held to  be violative  of the constitutional requirement and therefore,   invalid.    The   impugned   order   appointing respondents Nos.  3, 4,  5 and 6 has, therefore, necessarily to be quashed.      Before concluding we consider it necessary to emphasize that independence  of the  judiciary is  one  of  the  basic tenets and  a fundamental  requirement of  our Constitution. Various Articles  in our  Constitution contain  the relevant provisions  for   safeguarding  the   independence  of   the Judiciary. Art  50 of  the Constitution which lays down that "the State  shall take  steps to separate the judiciary from the  executive   in  the  public  services  of  the  State", postulates separation of the judiciary from the executive.      Unfortunately, for  some time  past there appears to be an unhappy  trend of  interference in the matter of judicial appointments by  the executive  both at  the State  and  the Central level. The unfortunate interference by the executive results in  prolonged and  unnecessary delay  in making  the appointments and  judicial vacancies continue for months and in cases for years with the result that the cause of justice suffers. It  is common knowledge that members of the Bar who are considered  suitable to be on the Bench are reluctant to join the  Bench and  the Office  of a  Judge has for various reasons ceased  to attract  the tenanted members of the Bar. The further  unfortunate fact  is that  even in  cases  when competent 626 members of  the Bar may be persuaded to accept the office of a High Court Judge or join the higher judicial service, they ultimately withdraw  their consent  in view  of the delay in making the  appointments and because of various restrictions sought to  be imposed.  As in  the present  case we  are not really concerned with the appointment of a Judge of the High Court or  of a  direct appointment  to the  higher  judicial service from  the Bar,  we do  not purpose to dilate on this subject. Article  235 of  the Constitution vests the control of judicial  administration completely  in  the  High  Court excepting in  the matter  of initial appointment and posting of district judges and the dismissal, removal or termination of services  of these  officers. Even  in these  matters the requirement of  the Constitution  is that  the Governor must act in consultation with the High Court. If in the matter of

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appointment, the  High Court is sought to be ignored and the executive  authority   chooses  to   make  the  appointment, independence of  the judiciary will be affected. Persons who are interested  in being  appointed District Judges, whether directly or  by  promotion,  will  try  to  lobby  with  the executive and  curry favour  with the Government for getting these appointments  and there  is every  possibility of  the independence of  such persons  so appointed being undermined with the  consequence that the cause of justice will suffer. We are  of the  opinion that  healthy convention  and proper norms should  be evolved in the matter of these appointments for  safeguarding  the  independence  of  the  judiciary  in conformity with the requirements of the constitution. We are of the  opinion that  normally, as  a matter  of  rule,  the recommendations made  by the  High Court for the appointment of  a  District  Judge  should  be  accepted  by  the  State Government and  the Governor  should act  on the same. If in any particular  case, the  State  Government  for  good  and weighty   reason   find   it   difficult   to   accept   the recommendations of  the High  Court,  the  State  Government should communicate its views to the High Court and the State Government must  have complete  and  effective  consultation with the  High Court  in the  matter. There  can be no doubt that if  the High  Court is  convinced that  there are  good reasons  for  the  objections  on  the  part  of  the  State Government, the  High Court  will undoubtedly reconsider the matter and  the recommendations  made  by  the  High  Court. Efficient and  proper judicial administration being the main object of  these appointments, there should be no difficulty in arriving  at a  consensus as  both the High Court and the State Government must necessarily approach the 627 question  in  a  detached  manner  for  achieving  the  true objective  of   getting  proper   District  Judges  for  due administration of justice.      It  appears   that  in  the  instant  case,  the  State Government without  any kind of intimation to the High Court or any  discussion  or  deliberation  with  the  High  Court refused to accept the recommendations made by the High Court and proceeded  to make the appointments only on the basis of seniority without  any kind  of consultation  with the  High Court. Seniority,  undoubtedly,  is  a  relevant  factor  in considering promotion.  It is,  however, to be borne in mind that in  the matter  of promoting the Subordinate Judge to a District Judge,  seniority is not the only criterion, though it is  a material  factor to be considered. The true test in the matter of promotion is the suitability of the candidate. In considering  the suitability,  no  doubt,  the  seniority plays a  very important role. A senior Subordinate Judge may by virtue  of the  longer period  of his  service and  wider experience be  normally considered  to be more suitable than any junior Officer. The greater length of service also gives the High Court an opportunity of judging his performance and merit for  a longer  period.  If,  howsoever,  on  a  proper consideration of  the performance  and merit  of the officer for  this  longer  period,  the  High  Court  comes  to  the conclusion that  the performance  of the  officer  concerned though for a period longer than any officer junior to him is not satisfactory  and meritorious  enough, to entitle him to be promoted, the High Court cannot be compelled to recommend such an  officer only  on the  ground of  his seniority  for promotion. It  has to  be borne  in mind that in such a case the High  Court has  the further  advantage of  judging  the suitability of  the officer,  taking into  consideration his performance over  a longer period of time. The High Court by

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virtue of  its control  over the officers must be considered to be  the best  judge of the ability and suitability of any officer as the High Court has in its possession all relevant materials regarding the performance of the officer. The High Court of  the State is primarily entrusted with the judicial administration in  the State;  and  for  efficient  and  due discharge of  its responsibility,  the High  Court needs  to have proper  officers in  proper places. The High Court must be recognised  to be  the best judge of the requirements for proper and efficient administration of justice and it should generally be left to the High Court to decide as to which of 628 the officers will best serve the requirements in furtherance of the  cause of  justice.  High  Court’s  main  concern  is efficient judicial  administration in the State for properly serving   the   cause   of   justice.   While   making   any recommendation, no  other extraneous  matter weighs with the High Court.  The  High  Court  judges  the  suitability  for promotion in a detached manner taking into consideration all material facts  and relevant factors for promoting the cause of justice  and efficient  judicial  administration  in  the State. It  may be  a problem  for the High Court to properly post a  person as  a District  Judge  whom  the  High  Court considers not  be suitable  for the  post and to entrust him with the responsibility of a District Judge.      The appointment  of Respondent  Nos. 3, 4, 5 and 6 made by the  State Government  in violation of the constitutional provisions are, therefore, set aside. The said vacancies are directed to  be  filled  up  in  accordance  with  law.  We, however,  wish   to  make   it  clear   that  quashing   the appointments of  Respondents Nos.  3, 4,  5 and  6 will  not render any  orders passed  and judgments  delivered by  them during  the  period  they  have  continued  to  function  as District Judge  on the  basis of  the  invalid  appointments made, illegal,  invalid and  void. To  prevent any  kind  of confusion in  the matter of administration of justice and in the larger  interest of  justice order  passed and judgments delivered by  the Respondents  Nos. 3, 4, 5 and 6 have to be held valid  and binding, as if their appointments so long as the same  have not  been  set  aside,  were  valid  for  the purposes of  dealing the  matters disposed  of by  them. The appeal filed  by the  appellants and the writ petition filed by  them  in  the  High  Court  of  Jammu  and  Kashmir  are accordingly allowed to the extent indicated above with costs against the State Government. In view of this order no order is necessary on the writ petition filed in this Court.      PATHAK, J. I entirely agree with my learned brother Sen in his  observations  concerning  the  incompetence  of  the certificate   granted    by   the   High   Court   and   the maintainability of  the  writ  petition  and  in  the  order granting special leave to appeal to the appellants.      On the  merits I agree with my learned brother that the promotions of respondents Nos. 3, 4, 5 and 6 as District and Sessions 629 Judges by  the State  Government is contrary to law inasmuch as there  was no  consultation between  the State Government and the High Court before the promotions were effected. This contention of  the appellants must succeed. I do not propose to express  any opinion  on  the  other  contention  of  the appellants that  the promotions  fall outside  the scope  of Article 233 of the Constitution. P.B.R.                                       Appeal allowed. 630

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