Case: Hari Datt Kainthla &amp; Anr Vs. State Of Himachal Pradesh &amp; Ors

judicial service under the District Judge. Appellants contend that promotion of respondents 6 and 7 from the rank of subordinate judge to the selection grade post of subordinate judge is invalid as being in contravention first of the memorandum and secondly such promotion must only be on the basis of merit and not seniority. This contention must fail because no statutory rule is pointed out as to how the promotion was to be given and the High Court having given the promotion it was most competent to do so. The challenge must accordingly fail.Appellants also contended that even if the criterion for recommendation for promotion to the post of DSJ/ADSJ is seniority-cum-merit, respondents 3, 4 and 5 did not deserve to be promoted because their unfitness stares in the face inasmuch as they were not considered suitable for confirmation as subordinate judge as and when their turn came for confirmation and that would show that they were not men of merits. It was pointed out that respondents 4 and 5 were not confirmed due to their unsatisfactory performance in discharge of duties while their colleagues in the same batch were confirmed earlier. It was further pointed out that respondent 4 was not even allowed to cross the efficiency bar for a period of about 10 years and that he was allowed to cross it for the first time in 1970. These averments have hardly any relevance. The power to confirm any one in the subordinate judicial service vests in the High Court in exercise of the control vested in the High Court under Art. 235. In fact the power to promote to various posts in the subordinate judicial service under the District Judge comprehends also the power to confirm and that vests in the High Court. It is not necessary to dilate on this point because it is concluded by a decision of this Court in State of Assam &Anr. v. S. N. Sen &Anr., wherein this Court held that under Art 235 of the Constitution the power of promotion o f persons holding posts inferior to that of the District Judge being in the High Court, the power to confirm such promotees is also in the High Court and any rule in conflict with Art. 235 must be held to be invalid. This view was affirmed in Stat e of Bihar v. Madan Mohan Prasad &Ors. This Court held that since Art. 235 of the Constitution vests the power of confirmation in the High Court, the power of determining the seniority in the service is also with the High Court. Of course, in doing so the High Court is bound to act in conformity with any rules made by the Governor under the provisions of Art. 309 of the Constitution, if there be a rule.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 DSJ/ADSJ as there is no such rule. The impugned appointments appear to have been made by promotion of those belonging to subordinate judicial service by the Governor on the recommendation of the High Court as envisaged by Art. 233 and in the absence of any other valid rule, promotions made on the generally well accepted principle of seniority-cum- merit appear to be valid. There is, therefore, no substance in the contention that the promotion of respondents 3, 4 and 5 to the post of DSJ/ADSJ and the promotion of respondents 6 and 7 to the selection grade post were in any manner invalid.18. Before we conclude it must be pointed out that where the Government acts on the recommendation of the High Court and the action of the Government is challenged by way of a writ petition, in order to facilitate appreciation of issues raised, the administrative side of the High Court, if joined as a party, must appear and place before the Court the entire record for a fair and judicial adjudication of the issues on the judicial side of the High Court. In this case the appellants in their writ petition requested the High Court to produce the proceedings which culminated in the recommendation of the High Court to the Governor for appointment of respondents 3, 4 and 5 as DSJ/ADSJ. No action appears to have been taken on this request because no such record appears to have been produced before the High Court. Such silence militates against fair adjudication of the issues. Just and fair adjudication must not only inform the administrative side of the High Court but in order to put its record beyond the slightest pale of controversy it must avoid any secrecy in this behalf consistent with public interest.If the High Court felt that the criterion for promotion to the post of District Judge being a post of status and responsibility in the judicial hierarchy must only be merit, seniority having no or very little place, it was incumbent upon the High Court to propose such a rule to be made under Art. 309 or adopt to itself such a rule and conform to it. But if the High Court on the one hand recommended respondents 3, 4 and 5 according to their seniority as it appears to be the case, when the vacancies occurred and accepted their appointment and on the other hand when such appointments were challenged it went in search of a principle on the basis of which promotion to the post of DSJ/ADSJ should be given, it is rather difficult to reconcile these diametrically opposite actions. The High Court also was in error in proceeding to reject the appellants petition without recording a finding regarding the basis on which recommendations were made by it. We have, however, on the basis of the material before us tried to resolve the said question.19.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 DSJ/ADSJ that it was a responsible post and merit alone must guide it in making recommendation. Presumably the full court made the recommendation. The High Court took notice of the fact that there were no rules at the relevant time in Himachal Pradesh formulating the principle or criterion on which such promotion as Distt. Judge was to be recommended. If thus there was no rule and the High Court proceeded to adoptfitness as a criterion for recommending promotions from subordinate judges to the post of district judge neither of which appears to violate either Art. 233 or Art. 16 or any other constitutional mandate or any statutory rule, it would be futile to proceed to examine what ought or possible criterion should really govern the decision for recommending persons from subordinate judicial service for promotion to the post of DSJ/ADSJ. If the High Court felt that the post of district judge is a very responsible post and merit alone should govern promotion from subordinate judicial service to the post of district judge it was incumbent upon the High Court to propose necessary rules and get them enacted under Art. 309. That appears not to have been done. Alternatively, High Court should while making recommendation for promotion put the principle ofseniority 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 suchis difficult to appreciate how such a principle can be enunciated in abstract. If for regulating recruitment and conditions of service of district judges it was considered essential by the High Court that promotion to the post of District Judge from the subordinate judicial service shall be on merit alone and seniority having no place in the consideration unless two are considered equally meritorious, it was incumbent upon the High Court to have proposed such a rule to be enacted under Art. 309. Neither the High Court nor the Government have proposed such rules. And surprisingly, after reaching this conclusion the High Court rejected the writ petition, frankly, on an untenable ground that the petitioners have failed to show that if they had been considered at the time when the impugned promotions were made they would have stood a fair choice of being preferred over respondents 3, 4 and 5. This is an 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 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 ofwas 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, ap pears to have proceeded on the criterion ofwhich is a valid criterion under Art. 16 and not violative of Art. 233 and the appellants, therefore, who were junior to respondents 3, 4 and 5, cannot be heard to make a grievance about the promotion of respondents 3, 4 and 5 who as and when their turn came were considered and on being found fit were recommended for promotion and the Governor appointed them.It was, however, said that Office Memorandum No. F.1/4/55RPS dated May 16, 1957, issued by the Government of India, Ministry of Home Affairs, was applicable to the services including subordinate judicial service under the Union Territory of Himachal Pradesh before it attained statehood and that even if an office memorandum of the Government of India may not be directly applicable, it appears to have been adopted by the Union Territory of Himachal Pradesh because the same was issued by the Assistant Secretary to the Himachal Pradesh Administration as per his Memorandum No. Apptt.1/350/57, dated June 15, 1957, with a request that the contents of the Memorandum may also be brought to the notice of each member of the Departmental Promotion Committee for Class I, II and III posts constituted for each Department under the Union Territory of Himachalis nothing to show that that office memorandum was endorsed to the High Court and that the Administration suggested that the High Court should adopt it while making recommendations for promotion to the post of DSJ/ADSJ. In the absence of a return by the High Court to writ petition it is difficult to say whether the Administration desired that the guidelines prescribed in the memorandum should also be accepted or adopted by the HighHigh Court disposed of the memorandum by a cryptic observation that there has been a serious debate before the Court on the question whether the direction contained in the aforesaid memorandum had to be complied with by the High Court and the State Government when the impugned appointments were made. After noting this debate the High Court did not proceed to dispose of the contention and did not record a finding whether the memorandum was or was not required to be complied with by the High Court while making recommendations for promotion to the posts of DSJ/ADSJ. In the absence of any material as to whether the memorandum was endorsed to the High Court or whether the High Court adopted 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 bindingfor rejecting the efficacy of memorandum in relation to promotion to the post of DSJ/ADSJ will mutatis mutandis apply and the contention will have to be negatived. This contention must also be negatived for the additional reason that promotion from the post of subordinate judge to the selection grade post of subordinate judge is a promotion from one post in subordinate judicial service to another post in the same service. This promotion would definitely be under the control of the High Court as provided in Art. 235 of the Constitution. No statutory rule was pointed out as to how such promotion was to be given. In t he absence of a statutory rule the High Court would be the sole authority to decide the question of promotion in exercise of its control under Art. 235. By Art. 235 the High Court has been vested with complete control over the subordinate courts and this exercise of control comprehends the power to decide eligibility for promotion from one post in the subordinate judicial service to higher post in the same service except where one reaches the stage of giving promotion as DSJ/ADSJ when Art. 233 would be attracted and the power to give promotion would be in Governor hedged in with the condition that the Governor can act after consultation with the High Court which has been understood to mean on the recommendation of the High Court. But when it comes to promotion in the judicial service under the Distt. Judge the High Court would be the sole authority to decide the question of promotion (see The High Court, Calcutta v. Amal Kumar Roy). This becomes manifestly clear from State of Assam &Anr. v. Kuseswar Saikia &Ors. In that case one Upendra Nath Rajkhowa was promoted by the Governor as Addl. District Judge purporting to act under Art. 233 and a writ of quo warranto was sought challenging the appointment on the ground that the promotion as Addl. District Judge could only be made by the High Court acting under Art. 235. It was also contended that his further appointment as District Judge by the Governor would be void. It was so held by the Highthus becomes crystal clear that while promotion to the post of District Judge which includes various posts as set out in Art. 236, is with the Governor, the High Court alone would be competent to decide the promotion from one post in subordinate judicial service to any higher post in subordinate judicial service under the Districtcontention 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 accordinglyaverments have hardly any relevance. The power to confirm any one in the subordinate judicial service vests in the High Court in exercise of the control vested in the High Court under Art. 235. In fact the power to promote to various posts in the subordinate judicial service under the District Judge comprehends also the power to confirm and that vests in the High Court. It is not necessary to dilate on this point because it is concluded by a decision of this Court in State of Assam &Anr. v. S. N. Sen &Anr., wherein this Court held that under Art 235 of the Constitution the power of promotion o f persons holding posts inferior to that of the District Judge being in the High Court, the power to confirm such promotees is also in the High Court and any rule in conflict with Art. 235 must be held to be invalid. This view was affirmed in Stat e of Bihar v. Madan Mohan Prasad &Ors. This Court held that since Art. 235 of the Constitution vests the power of confirmation in the High Court, the power of determining the seniority in the service is also with the High Court. Of course, in doing so the High Court is bound to act in conformity with any rules made by the Governor under the provisions of Art. 309 of the Constitution, if there be a rule.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 DSJ/ADSJ as there is no such rule. The impugned appointments appear to have been made by promotion of those belonging to subordinate judicial service by the Governor on the recommendation of the High Court as envisaged by Art. 233 and in the absence of any other valid rule, promotions made on the generally well accepted principle ofmerit appear to be valid. There is, therefore, no substance in the contention that the promotion of respondents 3, 4 and 5 to the post of DSJ/ADSJ and the promotion of respondents 6 and 7 to the selection grade post were in any mannerwe conclude it must be pointed out that where the Government acts on the recommendation of the High Court and the action of the Government is challenged by way of a writ petition, in order to facilitate appreciation of issues raised, the administrative side of the High Court, if joined as a party, must appear and place before the Court the entire record for a fair and judicial adjudication of the issues on the judicial side of the High Court. In this case the appellants in their writ petition requested the High Court to produce the proceedings which culminated in the recommendation of the High Court to the Governor for appointment of respondents 3, 4 and 5 as DSJ/ADSJ. No action appears to have been taken on this request because no such record appears to have been produced before the High Court. Such silence militates against fair adjudication of the issues. Just and fair adjudication must not only inform the administrative side of the High Court but in order to put its record beyond the slightest pale of controversy it must avoid any secrecy in this behalf consistent with public interest.If the High Court felt that the criterion for promotion to the post of District Judge being a post of status and responsibility in the judicial hierarchy must only be merit, seniority having no or very little place, it was incumbent upon the High Court to propose such a rule to be made under Art. 309 or adopt to itself such a rule and conform to it. But if the High Court on the one hand recommended respondents 3, 4 and 5 according to their seniority as it appears to be the case, when the vacancies occurred and accepted their appointment and on the other hand when such appointments were challenged it went in search of a principle on the basis of which promotion to the post of DSJ/ADSJ should be given, it is rather difficult to reconcile these diametrically opposite actions. The High Court also was in error in proceeding to reject the appellants petition without recording a finding regarding the basis on which recommendations were made by it. We have, however, on the basis of the material before us tried to resolve the said question.