M.M. Gupta & Ors Vs. State of
Jammu & Kashmir & Ors [1982] INSC 73 (15 October 1982)
PATHAK, R.S.
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 the
various restrictions sought to be imposed.
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 & 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 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]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1349 of 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 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 propriety 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 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 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.
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 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:
(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 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 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 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 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:
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.
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 (1st 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 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 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 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 :- "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 person’s
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 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 their
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 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 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." 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 subcommittee.
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 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
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 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 affected. 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.
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