n the recommendation of the High Court and the action of the Government is challenged by way of a writ petition in order to facilitate appreciation of issues raised the administrative side of the High Court if joined as a party must appear and place before the Court the entire record for a fair and judicial adjudication of the issues on the judicial side of the High Court
In this case the appellants in their writ petition requested the High Court to produce the proceedings which culminated in the recommendation of the High Court to the Governor for appointment of respondents 3 4 and 5 as DSJADSJ
No action appears to have been taken on this request because no such record appears to have been produced before the High Court
Such silence militates against fair adjudication of the issues
Just and fair adjudication must not only inform the administrative side of the High Court 368 but in order to put its record beyond the slightest pale of controversy it must avoid any secrecy in this behalf consistent with public interest
381 C F  CIVIL APPELLATE JURISDICTION Civil Appeal No 991 of 1975
From the Judgment and Order dated 25 9 1973 of the Himachal Pradesh High Court in Civil Writ Petition No 15871
Yogeshwar Prasad A K Srivastava and Mrs Rani Chhabra for the Appellant
Dr section Chitale R N Sachthey and section K Dhingra for Respondent No 1 section K Mehta P N Puri and EME Anam for Respondent No 4
K R Nagaraja for Respondent No 6
The Judgment of the Court was delivered by DFSAI J
Would Article 16 of the Constitution come to the rescue and be successfully invoked by appellants admittedly juniors in the gradation list of Subordinate Judges in the State of Himachal Pradesh to respondents 3 4 and 5 questioning the legality and validity of their promotion to the cadre of DistrictAdditional District  Sessions Judges  DSJADSJ  for short as also questioning the legality and validity of promotion of respondents 6 and 7 to the selection grade post of Subordinate Judge  Uncontroverted facts are that Himachal Pradesh was a Union Territory till January 25 1971 when at the apex of judicial hierarchy there was a Court of Judicial Commissioner
On the introduction of the Punjab Reorganization Act 1966  Reorganization Act  for short effective from November 1 1966 certain territories were transferred and added to the Union Territory of Himachal Pradesh simultaneously extending the jurisdiction of the Court of Judicial Commissioner of Himachal Pradesh to the transferred territories
Consequently provision was made for allocation of persons belonging to different services in pre reorganised State of Punjab Respondents 4 to 7 being such allocated officers to Union Territory of Himachal Pradesh
On May 2 1967 the Union Territory of Himachal Pradesh was placed under the jurisdiction of Delhi High Court which continued till January 25 1971 when statehood was conferred on the Union Territory and a full fledged High Court of Himachal Pradesh was set up
Himachal Pradesh Courts Order 1948  1948 Order  for short was issued by the Union Government in exercise of the power conferred by sections 3 and 4 of the Extra Provincial Jurisdiction  and this Order remained in force till it was replaced by the Himachal Pradesh Subordinate Judicial Service Rules 1962  1962 Rules  for short
Para 16 2 of the 1948 Order provided for the appointment of District  Sessions Judges
The Chief Commissioner had power to appoint as many persons as he considered necessary to be District Judges
1962 Rules appear not to have made any departure in this behalf
Promotional avenue in Himachal Pradesh Subordinate Judicial Service moves vertically from the grass root entry as Subordinate Judge promotable as Senior Sub Judge cum Assistant Sessions Judge and then the further promotional avenue is DSJADSJ
Both the appellants were working as Senior Sub Judge cum Assistant Sessions Judge and they questioned the validity and legality of promotion of respondents 3 4 and 5 given on May 18 1971 as DSJADSJ on the ground that the post of DSJADSJ is a selection post and the criterion for selection must be merit alone seniority being treated as thoroughly irrelevant and therefore all those who were within the zone of eligibility should have been considered before selecting respondents 3 4 and 5 and this having not been done the promotion having been given purely on the basis of seniority their promotion is invalid
Simultaneously they contended that same criterion would mutatis mutandis apply while giving promotion to Senior sub Judge cum Assistant Sessions Judge to selection grade post and that having not been done and the promotion having been given only on the basis of seniority the same is invalid
In support of the contention reliance has been placed amongst other thing on a Memorandum dated June 15 1957 issued by the Himachal Pradesh Administration
There is a serious controversy whether this memorandum was effective and in force on the date of impugned promotions and whether the same would apply to the case of judicial officers
Appellants impleaded the State of Himachal Pradesh as respondent 1 and the High Court of Himachal Pradesh as respondent 2
Though the High Court would be the most competent to throw light on the vexed question as to by what criterion it selected respondents 3 4 and 5 for promotion to the post of DSJADSJ and recommended their names for appointment to the Governor surprisingly the High Court through its Registrar did not appear and participate in the proceedings
Nor did the Bench hearing the matter call for the relevant files from the office of the High Court though a prayer to that effect was made in the writ petition
370 Respondent 1 State of Himachal Pradesh filed the return to the writ as per the affidavit of Shri A K Goswami Joint Secretary to the Government Department of Personnel Simla
State Law Department also appears to have scrupulously kept out from the arena of controversy
In the return it was admitted that appointments to the post of Subordinate Judges were made in accordance with the provisions of para 18 of the 1948 Order till the 1962 Rules were enacted and brought into force on April 10 1962
It was averred that the appointment to the post of Distt
Judge used to be made under the provisions of para 16 2 of the 1948 Order which conferred power on the Chief Commissioner after consultation with the Judicial Commissioner to appoint as many persons as he thought necessary to be District Judges
It was further contended that since Himachal Pradesh attained full statehood on January 25 1971 appointment to the post of DSJ was governed by article 233 of the Constitution and therefore the appointments were to be made by the Governor in consultation with the High Court and accordingly respondents 3 4 and 5 were promoted and appointed as DSJADSJ on the recommendation of the High Court
The averment to that effect in para 12 of the writ petition was admitted in the return
Identical position was adopted supporting the promotion to selection grade given to respondents 6 and 7
The return leaves no room for doubt that the promotions to the post of DSJADSJ were given by the Governor on the recommendation made by the High Court to the Governor and the Governor acted upon the recommendation
It was therefore absolutely incumbent upon the High Court to have pointed out what criterion it adopted in selecting respondents 3 4 and 5 for promotion before it went in search of what principle ought to be adopted in selecting persons from Sub ordinate Judicial Service for promotion to the post of DSJADSJ
There is not even a whimper as to what criterion was adopted by the High Court in formulating its recommendations both for promotion as DSJADSJ and to selection grade in the scale of Subordinate Judge cum Assistant Sessions Judge the latter having been given by the High Court itself evidenced by the notification dated March 19 1971
Relevant provisions of the Constitution bearing on the question of appointment of District Judges and control of the High Court over the subordinate courts may be noticed
Article 233 reads as under 233
Appointment of district judges 1 Appointments of persons to be and the posting and promotion of 371 district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State
2 A person not already in the service of the Union or of the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment
Article 235 reads as under 235
Control over subordinate courts The control over district courts and courts subordinate thereto including the posting and promotion of and the grant of leave to persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with conditions of his service prescribed under such law
Article 236 provides that in Chapter VI of Part VI of the Constitution the expression District Judge  includes a judge of a city civil court additional district judge joint district judge assistant district judge chief judge of a small cause court chief presidency magistrate additional chief presidency magistrate sessions judge additional sessions judge and assistant sessions judge
The expression Judicial Service  in the chapter means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge
Article 309 confers power on the legislature by appropriate legislation to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the union or of a State and till such legislation is enacted the power is conferred by the proviso to Article 309 on the President and the Governor as the case may be to make rules in that behalf
At the outset it must be noticed that no Rules appear to have been enacted under article 309 proviso regulating recruitment and conditions of service of DSJADSJ
Undoubtedly such rules will have to be in conformity with other provisions of the Constitution such as article 16 and the provisions included in Chapter VI of Part VI of the 372 Constitution
Till such rules are framed appointment to the post of DSJADSJ will have to be made in accordance with the provisions of articles 233 and 235 of the Constitution
Article 233 confers power on the Governor of the State to appoint persons either by direct recruitment or by promotion from amongst those in the judicial service as District Judges but this power is hedged in with the condition that it can be exercised by the Governor in consultation with the High Court
In order to make this consultation meaningful and purposive the Governor has to consult High Court in respect of appointment of each person as District Judge which includes an Additional District Judge and the opinion expressed by the High Court must be given full weight
Article 235 invests control over subordinate courts including the officers manning subordinate courts as well as the ministerial staff attached to such courts in the High Court
Therefore when promotion is to be given to the post of District Judge from amongst those belonging to subordinate judicial service the High Court unquestionably will be competent to decide whether a person is fit for promotion and consistent with its decision to recommend or not to recommend such person
The Governor who would be acting on the advice of the Minister would hardly be in a position to have intimate knowledge about the quality and qualification of such person for promotion
Similarly when a person is to be directly recruited as District Judge from the Bar the reasons for attaching full weight to the opinion of the High Court for its recommendation in case of subordinate judicial service would mutatis mutandis apply because the performance of a member of the Bar is better known to the High Court than the Minister or the Governor
In Chandra Mohan vs State of Uttar Pradesh  Ors1 a Constitution Bench of this Court observed as under The constitutional mandate is clear
The exercise of the power of appointment by the Governor is conditioned by his consultation with the High Court that is to say he can only appoint a person to the post of District Judge in consultation with the High Court
The object of consultation is apparent
The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person belonging either to the judicial service  or to the Bar to be appointed as a district judge
Therefore a duty is enjoined on the Governor to make the appointment in consultation with a body which is the appropriate authority to give advice to him
373 This view was reaffirmed in Chandramouleshwar Prasad vs Patna High Court  Ors1 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
In A Panduranga Rao vs State of Andhra Pradesh  Ors
2 this Court observed that there are two sources of recruitment to the post of District Judge viz judicial service in subordinate rank and members of the Bar
In either case the consultation would assume the form of recommendation made by the High Court
It is thus incontrovertible that appointment to the post of DSJADSJ in Himachal Pradesh will have to be made in accordance with the provisions contained in article 233
If any rules are enacted under article 309 for regulating recruitment and conditions of service of DSJADSJ the rules will have to be in conformity with article 233 and if they violate the constitutional mandate of article 233 of the rules will be held ultra vires as succinctly laid dow in Chandra Mohan s case supra
To be precise so as to leave no ambiguity in that case rule 13 of UP Higher Judicial Services Rules provided for procedure for selection by promotion to the post of District Judge from the subordinate judicial service and amongst others the procedure provided for selection to be made by a Committee consisting of two judges of the High Court and the Judicial Secretary to Government
This rule was held to be ultra vires as being violative of article 233 inasmuch as the High Court could be said to have abdicated its constitutional function of making recommendation to an outside authority not known to Constitution
Turning to the facts of the case save and except the 1948 Order no rules appear to have been enacted regulating recruitment and conditions of service DSJADSJ in Himachal Pradesh
Therefore appointment to the post of DSJASDJ in Himachal Pradesh will have to be made in conformity with article 233
Even if para 162 of the 1948 Order held the field it merely provided for appointment by the Chief Commissioner now replaced by the Governor in consultation with the Judicial Commissioner now replaced by the High Court
That provision would be in conformity with article 233
The High Court in this case recommended the names of respondents 3 4 and 5 for promotion to the post of DSJADSJ as averred by appellants 374 themselves and the Governor accepted the recommendation and the appointments were made consistent with the recommendation
It cannot be gainsaid that this is in conformity with article 233 and the constitutional mandate is complied with and no statutory rule in the absence of any could be said to have been violated by promotion being given in this manner
In our opinion the matter should have ended there
The High Court however completely obliterating from its mind the criterion it must have followed in making the recommendation which prima facie appears to be one of the seniority cum merit under took an exercise of a search of what ought to be the criterion for promotion from the subordinate judicial service to the responsible post of District Judge
The High Court framed the question thus The first question is whether in law appointment to the post of District JudgeAddl
District Judge must be made by selection of most meritorious officer upon an appraisal of the comparative merit of eligible subordinate judges or is it sufficient that it is made on the basis of seniority cum fitness  We find it a bit difficult to follow and appreciate how the High Court could proceed on such a fruitless and bizarre enquiry unconnected with and wholly unnecessary in the fact of the case before it
The same High Court on its administrative side must have known its own mind when while making recommendation for promotion the principle or criterion it adopted
The High Court must be presumably aware even while making recommendation for promotion to the post of DSJADSJ that it was a responsible post and merit alone must guide it in making recommendation
Presumably the full court made the recommendation
The High Court took notice of the fact that there were no rules at the relevant time in Himachal Pradesh formulating the principle or criterion on which such promotion as Distt
Judge was to be recommended
If thus there was no rule and the High Court proceeded to adopt merit cum seniority or seniority cum fitness  as a criterion for recommending promotions from subordinate judges to the post of district judge neither of which appears to violate either article 233 or article 16 or any other constitutional mandate or any statutory rule it would be futile to proceed to examine what ought or possible criterion should really govern the decision for recommending persons from subordinate judicial service for promotion to the post of DSJADSJ
If the High Court felt that the post of district judge is a very responsible post and merit alone should govern promotion from subordinate judicial service to the post of district judge it was 375 incumbent upon the High Court to propose necessary rules and get them enacted under article 309
That appears not to have been done
Alternatively High Court should while making recommendation for promotion put the principle of merit cum seniority in the forefront and act accordingly
The High Court and the Governor appear to be agreed that the recommendation for promotion made was proper and the same was accepted without a demur
In our opinion it is then futile to examine what ought to be the criterion for such promotion unless there is no discrenible principle on which recommendation can be justified or the recommendation is attacked as arbitrary malafide or vitiated by bias
There is no such allegation
The High Court after referring to some books on public administration and public services and keeping in view the status and responsibility attaching to the post of District Judge concluded as under I would therefore hold that having regard to the duties and responsibilities attaching to the post of District Judge and the position occupied by the District Judge in the judicial hierarchy appointment to that post must be made by selection of the most meritorious officer upon an appraisal of the comparative merit of eligible Subordinate Judges
In my opinion the principle of seniority cum fitness would not be a valid principle
It is difficult to appreciate how such a principle can be enunciated in abstract
If for regulating recruitment and conditions of service of district judges it was considered essential by the High Court that promotion to the post of District Judge from the subordinate judicial service shall be on merit alone and seniority having no place in the consideration unless two are considered equally meritorious it was incumbent upon the High Court to have proposed such a rule to be enacted under article 309
Neither the High Court nor the Government have proposed such rules
And surprisingly after reaching this conclusion the High Court rejected the writ petition frankly on an untenable ground that the petitioners have failed to show that if they had been considered at the time when the impugned promotions were made they would have stood a fair choice of being preferred over respondents 3 4 and 5
This is an unsustainable conclusion
If the High Court is otherwise right that when promotion is to be given on the criterion of merit alone all those in the zone of selection or field of eligibility must be simultaneously considered and the best among them should be selected and recommended for promotion
The silence of the High Court on the most important question as to what 376 criterion it adopted while formulating its recommendation coupled with the fact that those at the top of gradation list according to their seniority were recommended is eloquent enough to conclude that principle of seniority cum merit was adopted by the High Court
What the High Court appears to have done is as and when the vacancy occurred the seniormost in the cadre of subordinate judges was considered and if found fit was recommended
The present grievance is by persons junior to respondents 3 4 and 5 whose promotion is questioned and the grievance is that they were not considered along with other eligible
It is impossible to expect a person to aver that if along with others eligible he was considered he would have been selected
Right to be considered for selection is distinct from an assertion that if considered the person so considered would of necessity be selected and then alone his grievance that he was not considered even though eligible could be examined by the Court
It is however not necessary to dilate on this point because in our opinion as the situation stood at the time of the impugned recommendation for promotion and the consequent appointments made by Governor there was no such rule providing merit alone as the criterion for promotion and the High Court though it does not reveal its mind appears to have proceeded on the criterion of seniority cum merit which is a valid criterion under article 16 and not violative of article 233 and the appellants therefore who were junior to respondents 3 4 and 5 cannot be heard to make a grievance about the promotion of respondents 3 4 and 5 who as and when their turn came were considered and on being found fit were recommended for promotion and the Governor appointed them
It was however said that Office Memorandum No F1455 RPS dated May 16 1957 issued by the Government of India Ministry of Home Affairs was applicable to the services including subordinate judicial service under the Union Territory of Himachal Pradesh before it attained statehood and that even if an office memorandum of the Government of India may not be directly applicable it appears to have been adopted by the Union Territory of Himachal Pradesh because the same was issued by the Assistant Secretary to the Himachal Pradesh Administration as per his Memorandum No Apptt135057 dated June 15 1957 with a request that the contents of the Memorandum may also be brought to the notice of each member of the Departmental Promotion Committee for Class I II and III posts constituted for each Department under the Union Territory of Himachal Pradesh
This Memorandum appellants say prescribes guideline and lays down criterion in giving promotions to posts which are styled as selection posts  as also to selection grades
Broadly 377 stated the guidelines are that appointments to selection post and selection grade should be made on the basis of merit with regard to seniority only to the extent indicated in the memorandum
It further provided that Departmental Promotion Committee or other selecting authority should first decide the field of choice ie the number of eligible officers awaiting promotion who should be considered for inclusion in the selection list provided however that an officer of outstanding merit may be included in the list of eligible candidates even if he is outside the normal field of choice
Field of choice was to be confined to five or six times the number of vacancies expected within a year
It was indicated that those found unfit should be excluded
Even in respect of those who are included in the field of choice each officer should be classified as outstanding very good good on the basis of merit as determined by the respective records of service and thereafter a select list should be drawn up by placing the names in the order of merit as indicated earlier without disturbing the seniority inter se within each cadre
Promotion should thereafter be confined it was suggested to the select list and by following the order in which the names are finally arranged
It was considered desirable to periodically revise the select list
Appellants contend that the memorandum laying these guidelines was issued no doubt by the Government of India when Himachal Pradesh was a Union Territory and therefore Government of India was competent to issue such directions in respect of services under the Union Territory of Himachal Pradesh but even if there is any doubt once the same was adopted by Himachal Pradesh Administration in the absence of any statutory rule it is binding and any promotion made in breach or violation of the prescribed guidelines would be invalid
There is nothing to show that that office memorandum was endorsed to the High Court and that the Administration suggested that the High Court should adopt it while making recommendations for promotion to the post of DSJADSJ
In the absence of a return by the High Court to writ petition it is difficult to say whether the Administration desired that the guidelines prescribed in the memorandum should also be accepted or adopted by the High Court
In the return filed on behalf of the Himachal Pradesh Government it has been stated that the memorandum was received from the Government of India and that the memorandum did contain some guiding principles for appointment to selection posts and selection grade but they were merely directory in nature and were only issued for the sake of guidance implying that if the facts and circumstances of any particular case so warranted the concerned authority could make deviation therefrom
It was further stated that after Himachal Pradesh attained statehood on 378 January 25 1971 the memorandum ceased to have any force and in the absence of any other statutory rule promotions and appointments to the posts of DSJADSJ can only be made in conformity with article 233 of the Constitution and any other direction to the contrary would be void and of no effect
The High Court disposed of the memorandum by a cryptic observation that there has been a serious debate before the Court on the question whether the direction contained in the aforesaid memorandum had to be complied with by the High Court and the State Government when the impugned appointments were made
After noting this debate the High Court did not proceed to dispose of the contention and did not record a finding whether the memorandum was or was not required to be complied with by the High Court while making recommendations for promotion to the posts of DSJADSJ
In the absence of any material as to whether the memorandum was endorsed to the High Court or whether the High Court adopted or acted upon the same or not it is difficult to accept that it was binding on the High Court and any recommendation for promotion made in breach or contravention thereof would render the promotion invalid
Even apart from this the impugned promotions were made on May 18 1971 after Himachal Pradesh became a full fledged State with a High Court at the apex of judicial and the memorandum would cease to have any force or binding effect
The same memorandum was relied on in support of the contention that in giving promotion to selection grade to respondents 6 and 7 the guidelines in the memorandum of 1957 were not only not followed but the promotions were made completely overlooking the guidelines or in contravention of the guidelines
Reasons for rejecting the efficacy of memorandum in relation to promotion to the post of DSJADSJ will mutatis mutandis apply and the contention will have to be negatived
This contention must also be negatived for the additional reason that promotion from the post of subordinate judge to the selection grade post of subordinate judge is a promotion from one post in subordinate judicial service to another post in the same service
This promotion would definitely be under the control of the High Court as provided in article 235 of the Constitution
No statutory rule was pointed out as to how such promotion was to be given
In the absence of a statutory rule the High Court would be the sole authority to decide the question of promotion in exercise of its control under article 235
By article 235 the High Court has been vested with complete control over the subordinate courts and this exercise of control comprehends the power to decide eligibility for promotion 379 from one post in the subordinate judicial service to higher post in the same service except where one reaches the stage of giving promotion as DSJADSJ when article 233 would be attracted and the power to give promotion would be in Governor hedged in with the condition that the Governor can act after consultation with the High Court which has been understood to mean on the recommendation of the High Court
But when it comes to promotion in the judicial service under the Distt
Judge the High Court would be the sole authority to decide the question of promotion see The High Court Calcutta vs Amal Kumar Roy
This becomes manifestly clear from State of Assam  Anr
vs Kuseswar Saikia  Ors
In that case one Upendra Nath Rajkhowa was promoted by the Governor as Addl
District Judge purporting to act under article 233 and a writ of quo warranto was sought challenging the appointment on the ground that the promotion as Addl
District Judge could only be made by the High Court acting under article 235
It was also contended that his further appointment as District Judge by the Governor would be void
It was so held by the High Court
On appeal when the matter came to this Court analysing article 233 this Court held as under It means that appointment as well as promotion of persons to be District Judges is a matter for the Governor in consultation with the High Court and the expression District Judge  includes an additional district judge and an additional sessions judge
It must be remembered that District Judges may be directly appointed or may be promoted from the subordinate ranks of the judiciary
The article is intended to take care of both
It concerns initial appointment and initial promotion of persons to be either District Judges or any of the categories included in it
Further promotion of District Judges is a matter of control of the High Court
What is said of District Judges here applies equally to additional District Judges and Additional Sessions Judges
 This Court accordingly held that the promotion of Rajkhowa as Addl
District Judge by the Governor was made under article 233 and that it was a valid appointment
Accordingly the appeal was allowed
It thus becomes crystal clear that while promotion to the post of District Judge which includes various posts as set out in article 236 is with the Governor the High Court alone would be competent to decide the promotion from one post in subordinate judicial service to any higher post in subordinate judicial service under the District 380 Judge
Appellants contend that promotion of respondents 6 and 7 from the rank of subordinate judge to the selection grade post of subordinate judge is invalid as being in contravention first of the memorandum and secondly such promotion must only be on the basis of merit and not seniority
This contention must fail because no statutory rule is pointed out as to how the promotion was to be given and the High Court having given the promotion it was most competent to do so
The challenge must accordingly fail
Appellants also contended that even if the criterion for recommendation for promotion to the post of DSJADSJ is seniority cum merit respondents 3 4 and 5 did not deserve to be promoted because their unfitness stares in the face inasmuch as they were not considered suitable for confirmation as subordinate judge as and when their turn came for confirmation and that would show that they were not men of merits
It was pointed out that respondents 4 and 5 were not confirmed due to their unsatisfactory performance in discharge of duties while their colleagues in the same batch were confirmed earlier
It was further pointed out that respondent 4 was not even allowed to cross the efficiency bar for a period of about 10 years and that he was allowed to cross it for the first time in 1970
These averments have hardly any relevance
The power to confirm any one in the subordinate judicial service vests in the High Court in exercise of the control vested in the High Court under article 235
In fact the power to promote to various posts in the subordinate judicial service under the District Judge comprehends also the power to confirm and that vests in the High Court
It is not necessary to dilate on this point because it is concluded by a decision of this Court in State of Assam  Anr
vs section N Sen  Anr wherein this Court held that under Art 235 of the Constitution the power of promotion of persons holding posts inferior to that of the District Judge being in the High Court the power to confirm such promotees is also in the High Court and any rule in conflict with article 235 must be held to be invalid
This view was affirmed in State of Bihar vs Madan Mohan Prasad  Ors
This Court held that since article 235 of the Constitution vests the power of confirmation in the High Court the power of determining the seniority in the service is also with the High Court
Of course in doing so the High Court is bound to act in conformity with any rules made by the Governor under the provisions of article 309 of the Constitution if there be a rule
381 The administrative side of the High Court having chosen not to participate in the proceedings this Court must dispose of the appeal on the scanty material available on record
On the available material the appellants failed to establish violation of any existing rule statutory or otherwise governing promotion of persons to the post of DSJADSJ as there is no such rule
The impugned appointments appear to have been made by promotion of those belonging to subordinate judicial service by the Governor on the recommendation of the High Court as envisaged by article 233 and in the absence of any other valid rule promotions made on the generally well accepted principle of seniority cum merit appear to be valid
There is therefore no substance in the contention that the promotion of respondents 3 4 and 5 to the post of DSJADSJ and the promotion of respondents 6 and 7 to the selection grade post were in any manner invalid
Before we conclude it must be pointed out that where the Government acts on the recommendation of the High Court and the action of the Government is challenged by way of a writ petition in order to facilitate appreciation of issues raised the administrative side of the High Court if joined as a party must appear and place before the Court the entire record for a fair and judicial adjudication of the issues on the judicial side of the High Court
In this case the appellants in their writ petition requested the High Court to produce the proceedings which culminated in the recommendation of the High Court to the Governor for appointment of respondents 3 4 and 5 as DSJADSJ
No action appears to have been taken on this request because no such record appears to have been produced before the High Court
Such silence militates against fair adjudication of the issues
Just and fair adjudication must not only inform the administrative side of the High Court but in order to put its record beyond the slightest pale of controversy it must avoid any secrecy in this behalf consistent with public interest
If the High Court felt that the criterion for promotion to the post of District Judge being a post of status and responsibility in the judicial hierarchy must only be merit seniority having no or very little place it was incumbent upon the High Court to propose such a rule to be made under article 309 or adopt to itself such a rule and conform to it
But if the High Court on the one hand recommended respondents 3 4 and 5 according to their seniority as it appears to be the case when the vacancies occurred and accepted their appointment and on the other hand when such appointments were challenged it went in search of a principle on the basis of which promotion to the 382 post of DSJADSJ should be given it is rather difficult to reconcile these diametrically opposite actions
The High Court also was in error in proceeding to reject the appellants petition without recording a finding regarding the basis on which recommendations were made by it
We have however on the basis of the material before us tried to resolve the said question
Having examined the matter in all its ramifications we are no substance in this appeal and the same is dismissed with no order as to costs
SR Appeal dismissed


Summary:
Himachal Pradesh was a Union Territory till January 25 1971 when at the apex of the Judicial hierarchy there was a court of Judicial Commissioner
On the introduction of the Punjab Reorganization Act 1966 effective from November 1 1966 certain territories were transferred and added to the Union Territory of Himachal Pradesh simultaneously extending the jurisdiction of the Court of Judicial Commissioner of Himachal Pradesh to the transferred territories
Consequently provision was made for allocation of persons belonging to different services in pre reorganized State of Punjab Respondent 4 to 7 being such officers to Union Territory of Himachal Pradesh
On May 2 1967 the judiciary of Union Territory of Himachal Pradesh was placed under the jurisdiction of Delhi High Court which continued till January 25 1971 when state hood was conferred on the Union Territory and a full fledged High Court of Himachal Pradesh was set up
Promotional avenues in Himachal Pradesh Subordinate Judicial service moved vertically from the grass root entry as subordinate judge promoted as senior sub Judge cum Assistant Sessions Judge and when the further promotional avenue is DSJADSJ
They were initially governed by the Himachal Pradesh Courts Order 1948 issued by the Union Government in exercise of the power conferred by sections 3 and 4 of the Extra Provincial Jurisdiction Act 1947
This order remained in force till it was replaced by the Himachal Pradesh Subordinate Judicial Service Rules 1962
Rule 162 of the 1948 Order provided for the appointment of District and Sessions Judges
The Chief Commissioner had power to appoint as many persons as he considered necessary to be District Judges
In the 1962 Rules there was no change in this regard
Effective from January 25 1971 when statehood was conferred on the Union Territory of Himachal Pradesh the Chief Commissioner was replaced by the Governor and the Judicial Commissioner by High Court
Both the appellants were working as Senior Sub Judge cum Assistant Sessions Judge and they questioned the validity and legality of promotion of respondents 3 4 and 5 given on May 18 1971 as DSJADSJ on the ground that the 365 post of DSJADSJ is a selection post and the criterion for selection must be merit alone seniority being treated as thoroughly irrelevant and therefore all those who were within the zone of eligibility should have been considered before selecting respondents 3 4 and 5 and this having not been done the promotion having been purely as the basis of seniority their promotion is invalid
Simultaneously they contended that same criterion would mutatis mutandis apply while giving promotion to senior sub Judge cum Assistant Sessions Judge to selection grade post and that having not been done and the promotion having been given only on the basis of seniority the same is invalid as per the memorandum dated June 15 1957 issued by the Himachal Administration
The High Court through its Registrar did not appear and participate in the proceedings though made a party
Nor did the Bench hearing the matter call for the relevant files from the office of the High Court though a prayer was made to that effect in the writ petition
The State of Himachal Pradesh Respondent No 1 contended that appointment to the post of DSJ was governed by article 233 of the Constitution under which appointments were to be made by the Governor in consultation with the High Court and since respondents 3 4 and 5 were promoted and appointed as DSJADSJ on the recommendation of the High Court the appointments were not open to challenge
The High Court accepted this plea of the State Government and dismissed the writ petitions
Hence the appeal by special leave
Dismissing the appeal the Court  HELD 1 Article 309 of the Constitution confers power on the legislature by appropriate legislation to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State and till such legislation is enacted the power is conferred by the proviso to Article 309 of the President and the Governor as the case may be to make rules in that behalf
Undoubtedly such rules will have to be in conformity with other provisions of the Constitution such as Article 16 and the provisions included in Chapter VI of Part VI of the Constitution
No rules have been enacted under Article 309 proviso regulating the recruitment and conditions of service of DSJADSJ till such rules are framed appointment to the post of DSJADSJ will have to be made in accordance with the provisions of Articles 233 and 235 of the Constitution
371 F H 372 A Article 233 confers power on the Governor of the State to appoint persons either by direct recruitment or by promotion from amongst those in the judicial service as District Judges but this power is hedged in with the condition that it can be exercised by the Governor in consultation with the High Court
In order to make this consultation meaningful and purposive the Governor has to consult High Court in respect of appointment of each person as District Judge which includes an Additional District Judge and the opinion expressed by the High Court must be given full weight
Article 235 invests control over subordinate courts including the officers manning subordinate courts as well as the ministerial staff attached to such courts in the High Court
Therefore when promotion is to be given to the post of District Judge from amongst these 366 belonging to subordinate judicial service the High Court unquestionably will be competent to decide whether a person is fit for promotion and consistent with its decision to recommend or not to recommend such person
The Governor who would be acting on the advice of the Minister would hardly be in a position to have intimate knowledge about the quality and qualification of such person for promotion
Similarly when a person is to be directly recruited as District Judge from the Bar the reasons for attaching full weight to the opinion of the High Court for its recommendation in the case of subordinate judicial service would mutatis mutandis apply because the performance of a member of the Bar is better known to the High Court than the Minister or the Governor
372 A F Chandra Mohan vs State of Uttar Pradesh at 83 Chandramouleshwar Prasad vs Patna High Court  Ors  and A Panduranga Rao vs State of Andhra Pradesh   followed
Right to be considered for selection is distinct from an assertion that if considered the person so considered would of necessity be selected and then alone his grievance that he was not considered even though eligible could be examined by the court
And it is impossible to expect a person to aver that if along with others eligible he was considered he would have been selected
376 B C In the instant case as the situation stood at the time of the impugned recommendations for promotion and the consequent appointment made by Governor there was no such rule providing merit alone as the criterion for promotion and the High Court though it does not reveal its mind appears to have proceeded on the criterion of seniority cum merit which is a valid criterion under Article 16 and not violative of article 233 and the appellants therefore who were juniors to respondents 3 4 and 5 cannot be heard to make a grievance about the promotion of respondents 3 4 and 5 who as and when their turn came were considered and on being found fit were recommended for promotion and the Governor appointed them
376 C E 3
It is true that the Office Memorandum No F1455RPS dated May 16 1957 issued by the Government of India Ministry of Home Affairs did contain certain guidelines laying down criterion in giving promotions to selection posts
In the absence of any material as to whether the Memorandum was endorsed to the High Court or whether the High Court adopted or acted upon the same or not it is difficult to accept that it was binding on the High Court and any recommendation for promotion made in breach of contravention thereof would render the promotion invalid
Even apart from this the impugned promotions were made on May 18 1971 after Himachal Pradesh became a full fledged State with a High Court at the apex of judiciary and the memorandum would cease to have any force or binding effect
377 G 378 C E 4
Promotion from the post of subordinate Judge to the selection grade post of subordinate Judge is a promotion from one post in subordinate judicial service to another post in the same service
This promotion would definitely be under the control of the High Court as provided in article 235 of the Constitution
In the absence of a statutory rule the High Court would be the sole authority to decide the question of promotion in exercise of its control under article 235
By article 235 the High Court has been vested with complete 367 control over the subordinates courts and this exercise of control comprehends the power to decide eligibility for promotion from one post in the subordinate judicial service to higher post in the same service except where one reaches the stage of giving promotion as DSJADSJ when article 233 would be attracted and the power to give promotion would be in Governor hedged in with the condition that the Governor can act after consultation with the High Court which has been understood to mean on the recommendation of the High Court
But when it comes to promotion in the judicial service under the Distt
Judge the High Court would be the sole authority to decide the question of promotion
378 F H 379 A B While promotion to the post of Distt
Judge which includes various posts as set out in Art 236 is with the Governor the High Court would be competent to decide the promotion from one post in subordinate judicial service to any higher post in subordinate judicial service under the District Judge
In the present case promotions of respondents 6 and 7 from the rank of subordinate Judge to the selection grade post of subordinate Judge is also valid
379 G H 380 A High Court of Calcutta vs Amal Kumar Roy  at 454 State of Assam  Anr
vs Kuseswar Saikia 5
The power to confirm any one in the subordinate judicial service vests in the High Court in exercise of the control vested in the High Court under article 235 in fact the power to promote to various posts in the subordinate judicial service under the District Judge comprehends also the power to confirm and that vests in the High Court
380 D E The impugned appointments were made by promotion as DSJADSJ of those belonging to subordinate judicial service by the Governor on the recommendation of the High Court as envisaged by article 233 and in the absence of any other valid rule promotion made on the generally well accepted principle of seniority cum merit is valid
Therefore the promotion of respondents 3 4 and 5 to the post of DSJADSJ and promotions of respondents 6 and 7 to the selection grade post are valid
381 A C State of Assam  Anr
vs section N Sen  Anr   State of Bihar vs Madan Mohan Prasad  Ors   followed