Holding

In the absence of any rule mandating merit‑only selection, promotions to DSJ/ADSJ and to selection‑grade subordinate judge posts may validly be made on a seniority‑cum‑merit basis, rendering the challenged promotions lawful.

Summary

The appellants, junior subordinate judges in Himachal Pradesh, challenged the promotions of three officers to District/Additional District & Sessions Judge (DSJ/ADSJ) and two officers to a selection‑grade subordinate judge post, arguing that such promotions are selection posts that must be based solely on merit and not seniority, and that a 1957 Government memorandum prescribing merit‑only criteria was binding. The Supreme Court held that no statutory rule required merit‑only selection; therefore seniority‑cum‑merit, a principle consistent with Article 16, was a valid criterion under Articles 233 and 235 of the Constitution. Consequently, the promotions made by the Governor on the High Court’s recommendation were lawful. The Court also noted that the High Court, as a party, should have produced its records but its omission did not affect the validity of the promotions. The appeal was dismissed.

Issues considered

Whether promotion to the post of District/Additional District & Sessions Judge is a selection post requiring merit alone, or seniority‑cum‑merit is permissible under Articles 233, 235 and 16 of the Constitution.
Whether the 1957 Office Memorandum issued by the Government of India is binding on promotion decisions after Himachal Pradesh attained statehood.
Whether the High Court, as a necessary party, must appear and produce its records in a writ petition challenging promotions made on its recommendation.
Whether promotion to a selection‑grade subordinate judge post falls under the control of the High Court under Article 235 and is valid in the absence of a statutory rule.

Legislation cited

Constitution of Indias. Article 16, s. Article 233, s. Article 235, s. Article 236, s. Article 309
Extra Provincial Jurisdiction Act, 1947s. Section 3, s. Section 4

Subjects

judicial promotionselection postsenioritymeritArticle 233Article 235High Court consultationconstitutional lawwrit petitionHimachal Pradesh

Judgment

364

A HAR! DATT KAINTHLA & ANR.
v.
STATE OF IDMACHAL PRADESH & ORS.
April 9, 1980
•
[D. A. DESAI AND E. S. VENKATARAMIAH, JJ.J
B
Promotion claim for-Appellants admittedly juniors in the gradation list of
Subordinate Judges in the State of Himachal Pradesh to Respondents 3, 4 and 5-
Whether apj,ellants could question the legality and validity of the promotion of
respondents 3, 4 and 5 to the cadre of District/ Additional District & Sessions
Judges and also the promotion of respondents 6 & 7 to the selection grade post
subordinate Judges in accordance lvith Chapter VI of Part VT of Constitution-
c Constitution of India Article 16, whether offended-Constitution of India
Articles 233, 235 and 236.
Necessary parties to the proceedings-Whether Govern111§nt and H1'gh Court,
should necessarily appear before the High Court, 1vhen they are made parties
challenging their action.

D 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 Himacbal Pradesh simultaneously extending the jurisdiction of the·
Court of Judicial Commissioner of Himachal Pradesh to the transfeITed teni-
tories. Consequently provision was made for allocation of persons belonging
to different services in pre-reorganized State of Punjab (Respondent 4 to
\
E
7 being such officers) to Union Tenitory of Himachal Pradesh. On May
2, 1967, the judiciary of Unioru Territory of Himachal Pradesh was placed under
the jurisdiction of Delhi J!igh C'ourt which continued till January 25, 1971, when
state-hocxl was conferred on the Union Territory and a full fledged High Court
of Himachal Pradesh was set up.
Promotional avenues in Himacha·l Pradesh Subordinate Judicial servicei moved
F vertically from the grass root entry as subordinate judge promoted as senior
sub-Judge-cum-Assistant Sessions Judge. and when the further prontotional avenue
is DSJ /ADSJ. They \'Vere initia·lly governed by the Himachal Pradesh (Courts)
Order, 1948 issued by the Union Government in exercise of the po·wer cenferred·
by sections 3 and 4 of the Extra Provincia·l Jurisdiction Act, 1947. This ordet
remained in force till it was replaced by the1 Himachnl Pradesh Subordinate
Judicial Service Rules, 1962. Rule 16(2) of the 1948 Order provided for the
G appointment of District and Sessions Judges,, The Chief Commissioner had
power to appoint as many parsons 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 Commisisoner was replaced by the Governor
and the Judicial Commissioner by High Court.
B Both the appellants were working as Senior Sub-Judge-cum-Assistant Sessions
Judge and they questioned the validity and legality of promotion of respondents
3, 4 and 5 given on May 18, 1971 as DSJ/ADSJ on the ground that the-
HAR! DATT V. HIMACHAL PRADESH 365

post of DSJ I ADSJ is a selection post and the criterion for selection must be
merit alone, seniority being treated as thoroughly irreilevant 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 pro-
• motion having been purely as the basis of seniority, their promotion: is inv&lid .
Simultaneously they contended that same. criterion would 1nutatis-muta11di~ apply
while giving promotion to senior sub-Judge cum Assistant Sessions Judge tD
selection grade post and that having not been done and the promotion having B
been given only on the basis of seniority, the, same is invalid, as per the
rnemorandum 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. Noc did the Bench hearing the rna<ter call
for the relevant files from the office' of the High Court though a prayer was
made to that effect in the writ petition.
c
The State of Himachal Pradesh, Respondent No. 1 contended that appointment
to the post of D.S.J. was governed by Art. 233 of the Constitution under
v. hich appointments were to be made by the Governor in consultation with
1

the High Court and since respondents 3, 4 and 5 were promoted and ·appointed
as DSJ I ADSJ on the recommendation of the High Court, the appointments
were not open to challenge. The High Court accepted this plea of the State D
Government and dismissed the v.rrit petitions. Hence the appeal by special
leave.

DismiS$ing thet appeail the Court,

I HELD : ( 1) Article 309 of the Constitution confers power on the legislature
by appropriate legislation to regulate the recruitment and conditions of service E
of persons appointed to public services ~nd 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 Constitu-
tion. No rules have been enacted under Article 309 proviso regulating the P
recruitment and conditions of service of DSJ I ADSJ till such rules are framed
appointment to the post of DSJ I ADSJ will have to be made in accordance with
the provisions of Articles 233 and 235 of the Constitution.
[371 F-H, 372 A]

Article 233 confers power on the Governor of the State to appoint persons
either by direct recruitment or by promotion from amongst those in the judicial G
service as Dhtrict 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 inake this consultation meaningful and purposive the Governor has to
consult High Cou1t in respect of appointment of each person as District Judge
which includes an Additional District Judge amd the opinion expressed by the
lligh Court must be given full weight. Article 235 invests control over sub-
ordinate courts including the officers manning subordinate courts as v.'ell as thei H
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 SUPREME COURT REPORTS (1980] 3 S.C.R.

A belonging to subordinate judicial service, the High Court unquestioniibly will
be competent to decide "'hether 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
B to the opinion of the High Court for its recommendation in the case of sub:.
ordinaite judicial service would niutatis n1uta11dis apply because the performance
of a member of thei Bar is better known to the High Court than the' };finister
or the Governor. [372 A-FJ '
Chandra Mohan v. State of Uttar Pradesh [1967] SCR 77 at 83. Chandra-
rnou!e.shwar Prasad v. Patna lligh Court & Ors. [1970] 2 S.C.R. 666 and -~·
c A. Pa•1duranga Rao v. State of Andhra Pradesh [1976] I S.C.R. 620; followed.

2. Right to be considered for selection is distinct from a·n 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 \VOuld have, been selected.
D [376 B-C]
In the instant casei as the situation stood not the time of the impugned
rec01nmendations for promotion and the consequent appointment made by
- Governor lhere was no such rule providing merit alone as the criterion for
promotion and the High Cburt, though it does .not reveal its 1nind, appears to
have proceeded on the criterion of seniority.cum-merit which is a valid criterion \
E under Article 16 and not violative of Art. 233 and the appellants, therefore,
who were juniors to respond.ents 3, 4 and 5 cannot be. heard to make al grievance
about the promotion of respondents 3, 4 and 5 who as and when their turn
canle \\'ere considered and on being found fit were recon1n1ended for promotion
ond the Govern;,r appointed them. [376 C-E]
3. It is true that the.Office Memorandum No. F.1/4/55/RPS dated May 16,
1957, issued by the Govennent of Indra I\1inistry of Home Affairs did contain
F 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 made1 in breac.h of contravention thereof would
render the promotion invalid. Even apart from this, the impugned promotions
T"v'ere made on May 18, 1971, after Himachal Pradesh became a full fledged
G State \Vith a High Court at the apex of judiciary and. the memora.ndum ~·ould
cease to have any force or binding effect. [377 G, 378 C·EJ

4.· Promotion from the post of subordinate Judge to the selection! grade post
of subordinate Judge is a promotion from one post in subordinate judici:il
service to another post in the same service. This promotion V.'ould definitely
be under the control of the High Court as provided in Art. 235 of the COn.stitu-
H tion. In the absence of a sta-tutory 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 Jfigh Court has been vested with complete
HARI DATT v. HIMACHAL PRADESH 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 samej service except where one reaohes 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:
cvndition that the Governor can act a.fter 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.
B

[378 F-H, 379 A-BJ

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 po5t in subordinate judicial service under the District Judge. In the
c
present case promotions of respondents 6 and 7 from the rank of subordinate
Judge to the selection grade post of subonlinate fudge is also valid.
[379 G-H, 380 A]

High Court of Calcutta v. Amal Kumar Ray [1963] I S.C.R. 437 al 454;
State of Assam & Anr. v. Kuseswar Saikia & Ors. [1970] 2 SCR 923 applied. D
5. The power to confirm any one in the sµbordllmte judicial service vests in
tho High Court in exercise of the colltrol vest_ed ·in .the High Court under Art.
235; in fact the power to promote to va~_ious poSts in the1 sllbordina-te judicial\
service under the District· Judge comprehends. also the power to confirm arid
that veet<> in the High Court. [3SO-D-E]
E
The in1pugncd appoint_ments \Vere µiade by promoti_on as DS~/ ADSJ ot"
those belonging to subordinate judicial service by the Governor on the recom-
mendation of the I-ligh Court as envisaged· by Arf. 2"33 ·and in the absence of
any other valid rule promotion made on the generally well accepted principle
of seniority-cum-merit is va·lid. Therefore the promotion of respondents 3, 4
and 5 to the post of DSJ I ADSJ and promotions of respondents 6 and 7 to the
selection grade post are valid. [381 A-CJ F
Stat'' "f Assam & Anr. v. S. N. Sen & Anr. [1972] 2 S.C.R. 251; State of
Bihar v. Madan Mohan Prasad & Ors. [1976] 3 SCR 110; followed.

6. Where the Governn1ent acts on the recommendation of the High Court
and the action of the Government j_s challenged by way of a writ petition, ill
order to facilitate appreciation of issues raised, the administratiVe side of thei G
High Court, if joined as a P"rty, must appear and place bef6re the Court !lie
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 recom-
mendation of the High Court to the Governor for -appointme:Dt 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 B
Court. Such silence militates against fair adjudication of. t.he iss:ues. Just and
fair adjudication must not only inform the administrative side oJ\ the· High Court
368 SUPREME COURT REPORTS [1980] 3 S.C.R.

A but in order to put its record beyond the slightest pale of controversy it musi:
avoid any secrecy in this behalf consistent with public interest. [381 CF]

CIVIL APPELLATE JURISDICTION : Civil Appeal No., 991 of 1975.
From the Judgment and Order dated 25-9-1973 of the Hirnachal
Pradesh High Court in Civil Writ Petition No. 158/71.
B
Yogeshwar Prasad, A. K. Srivastava and Mrs. Rani Chhabra for
the Appellant
Dr. S. Chitale, R. N. Sachthey and S. K. Dhingra for Respondent ,.
No. 1.

c S. K. Mehta, P. N. Puri and EME Anam for Respondent No. 4.
K. R. Nagaraja, for Respondent No. 6. ··~
The Judgment of the Court was delivered by
DESAI, J.-Would Article 16 of the Constitution come to the
rescue and be successfully invoked by appellants, admittedly juniors
D in th0 gradation list of Subordinate Judg_es in the State of Him.achal
Pradesh to respondents 3, 4 and 5, questioning the legality and
validity of their promotion to the cadre of District/ Additional District
& Sessions Judges ('DSJ/ADSJ' for short), as also questioning the
legality and validity of promotion of respondents 6 nnd 7 to the
selection grade post of Subordinate Judge?
E
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 Re-organisation Act, 1966, ('Re-organisation Act' for
short) effective from November 1, 1966, certain territories were
F transferred and added to the Union Territory of Himachal i'radesh
simultaneously extending the jurisdiction of the Court of Judicial Com.-
missioner of Himachal Pradesh to the transferred territories. Conse-
quently, provision was made for allocation of persons belonging to
different services in pre-reorganised State of Punjab (Respendents 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.
tB 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
HARi DATT v. HIMACHAL PRADESH (Desai, J.) 369

A
Act, 1947, and this Order remained in force till it was replaced by
the Himachal Pradesh Subordinate Judicial Service Rules, 1962 ('1962
I 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 B
departure in this behalf.
Promotional avenue in Himachal Pradesh Subordinate Judicial
Service moves vertically from the grass-root entry as Subordinat~,
Judge promotable as Senior Sub-Judge-cum-Assistant Sessions Judge
and then the further promotional avenue is DSJ I ADSJ. c
Both U1e appellants were working as Senior Sub-Judge-cum-Assis-
tant Sessions Judge and they questioned the validity and legality of
promotion of respondents 3, 4 and 5 given on May 18, 1971, as
DSJ j ADSJ on the ground that the post of DSJ / ADSJ Is a selection
post and ilie criterion for selection must be merit alone, seniority being D
treated as thoronghly 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. Simult~neously they contended that same criterion
would mutatis mutandis apply while giving promotion to Senior-sub- E
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 Memo-
randum dated June 15, 1957, issued by the Himachal Pradesh Ad·
ministration. There is a serious controversy whether this memoran-
dum was effective and in force on the date of impugned promotions
and whether the same would apply to the case of judicial officers.

Appell~ts inlpleaded the State of Himachal Pradesh as respon-
dent l and the High Court of Himachal Pradesh as respondent 2. G
Though the High Court would be the most competent to throw light
on the vexed question as to by what criterion it selected respoi!dents
3. 4 and S for promotion to the post of DSJ / ADSJ and recommended
their names for appointment to the Governor, surprisingly the IDgh
Court through its Registrar did not appear and participate in the
proceedings. Nor did the Bench hearing the matter call for the rele-
vant files from the office of the High C~urt though a prayer to that
effect was made in the writ petition.
•
370 SUPREME COURT REPORTS (1980] 3 S.C.1'>

Respondent 1 State of Himachal Pradesh filed the return to the
wrii as per the affidavit of Shri A. K. Goswami, Joint Secretary to the '
.Goiernment, Department of Personnel, Simla. State Law Dcpart-
went 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 provi-
B
sions of para 18 of the 1948 Order till the 1962 Rules were e•acted
!Ind brought into force on April 10, 1962. It was averu.d that the
appointment to the post of Dist!. Judge used to be made under the
provisions of para 16 (2) of the 1948 Order which conferred power
on the Grief Commissioner after consultation with the Judicial Com-
(! missioner to appoint as many pen>ons as he thought necessary to be j
District Judges. It was furth,er contended that since Himachal Pra- ~
desh attained full statehood on January 25, 1971,. appointment to the
post of DSJ was governed by Art. 233 of the Constitution and, therec
fore, the appointments were to be made by the Governor in consulta-
tion with the Iligh Court and accordingly respondents 3, 4 and 5
D were. promoted ·and appointed as DSJ/ ADSJ on the recommendation
of the High Court. The averment to that effect in para 12 of the writ
petition was admitted in the return. Identical position was iidopted
§Upporting the promotion to selection grade give~ to respondents 6
and 7.
II
E The return leaves no roor:i for doubt that the promotions to the
post of DSJ I ADSJ were given by the Governor on the recommenda-
\ .
yon: made by the High Court to the Governor and the Governor acted
upbn °thti'' recoilllilenctaticln. It was, therefore, absolntely incuri1benl ·
upon t11e· High Court to' have pointed out what criterion if adopted in
I
F selecting 'respondents 3, 4 and.$ for promotion before fr went hi searcli
of what principle ought to be adopted in selecting persons from Sub-
Iii
orclinate Juclicial Service for promotion to the post of DSJ/ ADSJ.
There is not even a whinlper as to what criterion was adopted by:the
High Court in formulating its recommendations both for promotion
~ \I!
as'DSJ I ADSJ and to selection grade in the seal~ ·of Sµb0;djnate _jadge
1·
cum=Alisistant Sessions Judge, the latter having :Qee!l given~ by · the '
G High. ·coW:t
. itself evidenced by the notifi~ati0n
.. -- dated MarJ:h 19, 1971.
.,. '
. ~-

Rele!'ant provisions_of the Constitution bearing on the questiQU of
appointment of District Judges and control of the High Court over !
the snbordini\te courts may be noticed. Article 233 reads as under :
Iii ~
"233, Appointment of i:lisfrict' judgeS---(1) Appoint-
ments of pen>ons to be, and the ;pqstfng and promotion of,-

"'
"
HAR! DATT v. HIMACHAL PRADESH (Desai, J.) 3 71

district judges in any State shall be made by the Governo~· A
of the State in consultation with the High Court exercising
I juri5diction 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 Jess than seven years an advo- 8
~ate 0r 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 c
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
D
of appeal which he m~y have under the Jaw regulating the
conditions of his service or as authorising the High Court to
deal with him otherwise than in accordl!_nce with conditions
of hi> service prescribed under such Jaw".
Article 236 provides that in Chapter VI of Part VI of the Consti-
tution the expression 'District Judge' includes a judge of ~ city civil E
court, additional district judge, joint district judge, assistant district
judge, cbiet 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 per-
F
sons 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 recruit-
ment and conditions of service of persons appointed to public ,;ervices
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 G
Article 309 on the President and the Governor, as the case may be, to
make rules in that behalf.

At the outset it must be noticed that no Rules appear to have
been enacted under Art. 309 proviso regulating recruitment and con·
ditions of service of DSJ/ADSJ. Undoubtedly such rules will have H
to be in conformity with other provisions of the Constitution such as
Art. 16, and the provisions included in Chapter VI of Part VI of the
4-·289SCI/80
372 SUPREME COURT REPORTS [1980] 3 s.c.R.

A Constitutio'n. Till such rules are framed appointment to the post of
DSJ./ADSJ will have to be made in accordajice with the provisions of
Arts. 233 and 235 of the Constitution.
\
Article 233 confers power on the Governor of the State to appoint
persons either by direct recruitment or by promotion front amongst
B 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 con-
sultation with the High Court. In order to make this consultation
iµeaningful and purposive the Governor has to consult High Conrt in
respect of appointment of each person as District Judge which ir1cludes
'
an Additional District Judge and the opinion expressed by the High
c 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 b~ given to the poot of
District Judge from amongst those belonging to subordinate judicial
service, tne High Conrt unquestionably will be competent to decide
I> whether a person is fit for promotion and consistent with its decision
to recommend or not to rc_tommend such person. The Governor
who would be acting on the advice of the Minister would hardly be t
in a position to have intimate knowledge about the quality and quali-
fication of such person for promotion. Similarly when a person is
E 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 recom-
mendation 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 Mo/zan v. State of Uttar Pradesh & Ors.,(') a Constitu-
tion Bench of this Conrt observed as under :
"The constitutional mandate is clear. The exercise of
the power of appointment by the Governor is conditioned by
his ccnsultation with the High Court, that is to say, he can
only appoint a person to the post of District Judge in con.
sultation with the High Court. The obiect of consulta-
G
tion is apparent. Tho 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 dutv is enioined on the Governor to make the
II apoointment in consultation with a body which is the appro-
priate authority to cive advice to him".
(1) [1967] ls. c. R. 77 at 83.
HAR! DATT v. HIMACHAL PRADESH (Desai, !.) 373

This view was reaffirmed in Chandramouleshwar Prasad v. Patna A
High Court & Ors.(') observing:
I
"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". B
In A. Panduranga Rao v. State of Andhra Pradesh & Ors.(')
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. c
It is thus incontrovertible that appointment to the post of DSJ/
ADSJ in Himachal Pradesh will have to be made in accordance with
the provisions contained in Art. 233. If any rules are enacted under
Art. 309 for regulating recruitment and conditions of service of DSJ I
ADSJ, the rules will have to be in conformity with Art. 233 and if D
they violate the constitutional mandate of Art. 233 of the rules will be
held ultra vires as succinctly laid dow in Chandra Mohan's case
(supra). To be precise so as to leave no ambiguity, in that case rule
13 of U .P. Higher Judicial Services Rules' provided for procedure for
selection by promotion to the post of District Judge from thei subordi-
nate judicial service and amongst others, the procedure provided for E
selection to be made by a Committee consisting of two judges of the:
High Court and the Judicial Secretary to Government. This rulc was
held to be ultra vires as being violative of Art. 233 inasmuch as the
High Court could be said to have abdicated its constitutional function
of making recommendation to au outside authority not known to Cons-
titution. F
Turning to the facts of the case, save and except the 1948 Orde~
no rules' appear to have been enacted regulating recruitment and con-
ditions of service DSJI ADSJ in Himachal Pradesh. Therefore, ap-
, pointment to the post of DSJI ASDJ in Himachal Pradesh will have
to be made in conformity with Art. 233. Even if para 16(2) of the G
1948 Order held the field it merely provided for appointment by the
Chief Commissioner (now replacect by the Governor) in consultation
with the Judicial Commissioner (now replaced by the High Court).
That provision would be in confonnity with Art. 233. The High
Court in this case recommended the names of respondents 3, 4 and
5 for promotion to the post Of DSJ I ADSJ as averred by appellants H
' (I) [1970] 2 S. C.R. 666.
(2) [1976] I S C. R. 620.
374 SUPREME COURT REPOlUS [1980] 3 S.C.R.
A
thelllSelves and the Governor accepted the recommendation and the
appointments were made consistent with the recommendation. It
cannot be gainsaid that this is in conformity with Art. 233 and the
constitutional mandate is complied with and no statutory rule in the
ab~ence. of any c?uld be said to have been violated by promotion'
betng given m this manner. In our opinion the matter should have
ended there.

The High Court, however, completely oblitera_ting from its mind
the criterion it mnst 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
c promotion from the subordinate jndicial s_ervice to the responsible
post of District Judge. The High Court framed the question thus :
"The first question is whether in law appointment to
the post of District Judge/Addl District Judge must be
made by selection of most meritorious officer upon an
D 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 Cour~
could proceed on such a fruitless and bizarre enquiry unconnected
with and wholly unnecessary in the fact of the case before it. The
E same High Court on its admicistrative side must have known its own
mind when while maldng 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
F 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 pnxeeded to adopt merit-cum-seniority, or seniority-cum-fit-
G ness 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
H 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
HAR! DATT v. HIMACHAL PRADESH (Desai,!.) 375

incumbent upou the High Conrt to propose necessary rules and get A
th~ en'icted under Art. 309. That appears not to have been done.
Alternatively, High Court should while making recommendation for
promotion put the principle of merit-cum-seniority iq 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 B
then futile to examine what ought to be the criterion for such promo-
tion, unless there is no discrenible principle on which recommenda-
tion can be justified or the recommendation is attacked as arbitrary,
ma/afide or vitiated by bias. There is no such allegation.

The High Court after referring to some books on public adminis- c
trati:Qn and public services and keeping in view the status and respon-
sibility attaching to the post al'. 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 D
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-fitnesg would not
be a valid principle".
E
It is difficult to appreciate how such a principle can be enunciated
in abstract. If for regulating recruittnent 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
F
incumbent upon the High Court to have proposed such a rule to be
enacted under Art. 309. Neither the High Court nor the Governmcnfl
; have propooed such rules. And 6urprisingly, after reaching thi~
conclusion the High Court rejected the writ petition, frankly, on an
untenable ground that the petitioners have failed to show that if they G
had been considered at the time when the impugned promotions were
made they would have stood ru fair choice of being preferred over
rei;pondents 3, 4 and 5. This is an unsiistainable 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 R
them dlould be selected and recommended for promotion. The
silence of the High Court on the most important question as to whati
376 SUPREME COURT REPORTS [1980] 3 s.c.R.

A 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 prin-
ciple of seniority-cum-merit was adopted by the High Court. Wha~
the High Court appears to have done is as and when the vacancy
occurred the seniormost in the cadre of subordinate judges was consi-
B dered and if found fit was recommended. The present grievance is
by persons junior to respondents 3, 4 and 5 whose promotion is ques-
tioned 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 bavc been\
s'electcd. Right to be considered for selection is distinct from an
c '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
D
was no such rule providing merit alone as the criterion for promotion
and the High Court, though it does not reveal its mind, appears to
have proceeded on the criterion of seniority-cum-merit which is a valid
criterion under Art. 16 and not violative of Art. 233 a!'d the appellants,
therefore, who were junior to respondents' 3, 4 and 5, cannot be heard
E to make a grievance about the promotion of respondents 3, 4 and 5
who as and when their turn came were considered, and on being found
fit were recommended for promotion and the Governor appointed
them.

It was', however, said that Office Memorandum No. F.1/4/55-RPS
F dated May 16, 1957, issued by the Government of India, Ministry of
Home Affairs, was applicable to the services including subordinate
judicial service nuder 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 be-
G cause 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
B Himachal Pradesh. This Memorandum, appellants say, prescribes
gudielines and lays down criterion in giving promotions to posts which
are styled as 'selection posts' as also to selection grades. Broadly
HARI DATT v. HIMACHAL PRADESH (Desai, J.) 377

sfated, the guidelines are that appointments to selection post and A
selection grade shonld be made on the basis of merit with regard to
seniority only to the extent indicated in the memorandum. It further
provided that Departmental Promotion Committee or other selecting
)
authority should first decide the field of choice, i.e., the number of
eligible officers awaiting promotion who should be considered for
inclusion in the selection list provided, however, that an officer of B
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,
c
on the basis of merit as determined by the respective records of service
and thereafter a select list should be drawu 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 D
the names are finally arranged. It was considered desirable to periodi-
cally 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 E
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 (1
1o the High Court and that the Administration suggested tht the High
Court should adopt it while making recommendations for promotion
to the post of DSJ / ADSJ. Jn the absence of a return by the High
Court to writ petition it is difficult to say whether the Administra-
tion desired that the guidelines prescribed in the memorandum should
also be accepted or adopted by the High Court. In the return filed G
on behalf of the Himachal Pradesh Government it has been staled
that the memorandum was received from the Government of India and
that the memorandum did contain some guiding principles for appoint-
ment to selection posts and selection grade but they were merely
directory in nature and were only issued for the sake of guidance im-
plying that if the facts and circumstances of any particular case so war- H
ranted, the concerned authority could make deviation therefrom. It
was, further stated that after Himachal Pradesh attained statehood on
378 SUPREME COURT REPORTS [1980] 3 S.C.R.

A January 25, 1971, the memorandum ceased to have any force and in
the absence of any other statutory rule promotions and appointments
to the posts of DSJ / ADSJ can only be made in conformity with Art.
233 of the Constitution and any other direction to the contrary would
be void and of no effect.
B The High Court disposed of the memorandum by a cryptic obser-
vation 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
c not record a finding whether the memorandum was or was not required
to be complied with QY 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
D
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
j·~dicial and the memorandt1m would cease to have any force or bind-

E ing 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 follow-
ed but the promotions were made completely overlooking the guide-
F lines or in contravention of the guidelines. Reasons for rejecting the
efficacy of memorandum in relation to promotion to the post of DSJ /
ADSJ will mutatis mutandis apply and the contention will have to be
negatived. This contention must also be negatived for the additional
reason that promotion from the post of subordinate judge to the selec-
tion grade post of subordinate judge is a promotion from one post '
G in subordinate judicial service to another post in the same service.
This promotion would definitely be under the control of the High
Court as provided in Art. 235 of the Constitution. No statutory rule
was pointed out as to how such promotion was to be given. . In the
absence of a statutory rule the High Court would be the sole autho-
rity to decide the question of promotion in exercise of its control
H 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
HAR! DATT v. HIMACHAL PRADESH (Desai, J.) 379

from one post in the subordinate judicial service to higher post in the A
same ilervice 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
ha• been understood to mean on the recommendation of the High
B
Court. But when it comes to promotion in the judicial service unde~
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.('). Jn that case one Upendra
Nath Rajkhowa was promoted by the Governor as Addi. District Judge c
purporting to act under Art. 233 a;id a writ of <JUO warranto waSi
sought challenging the appointment on the ground that the promotion
as Addi. District Judge could only be made by the High Court acting
undoc Art. 235. It was also contended that his further appointment
as District Judge by the Governor would be void. It was so held by
the High Court. On appeal when the matter came to this Court, D
analysing Art. 233 this Court held as under:
"It means that appointment as well as promotion of
persons to be District Judges is a matter for the Governor in
consultation with the High Court and the expression 'District
Judge' includes an additional district judge and an additional
E
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 or the categories included in it. Further promotion of F
District Judges is a matter of control of the High Court. What
is said of District Judges here applies equally to additional Dis-
trict Judges and Additional Sessions Judges."
;
This Court accordingly held that the promotion of Rajkhowa as
Addl. District Judge by the Governor was made under Art. 233 and G
that it was a valid appointment. Accordingly the appeal was allowed.
It thus becomes crystal clear that while promotion to the post cf
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 hij!her post in subordinate judicial service under the District H
(I) [1963] 1 S. C. R. 437 at 454.
(2) [1970] 2 S. C. R. 928.
380 SUPREME COURT REPORTS [1980] 3 S.C.R.

A 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 ihe
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
B
and the High Court having given the promotion it was most competent
to do so. The challenge must accordingly fail.

Appellants also contended that e,ven if the criterion for recom-
mendation for promotion to the post of DSJ/ ADSJ is senior;ty-cnm-
c merit, respondents 3, 4 and 5 did not deserve to be promo led 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 W'etc not men
of merits. It was pointed out that respondents 4 and 5 were not
D confirmed due to their unsatisfactory perfonnance 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
E 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 Distritt 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 vf Assam
F & Anr. v. S. N. Sen & Anr., (') wherein this Court held that under
Art. 235 of the Constitution the powerc of promotion of personsholdin1r
posts inferior to that of the District Judge being in the High Court,
the power to confirm such promotees is also in the High Court and
any rule in conflict with Art. 235 must be held to be invalid. This view '
was affirmed in State of B:hal' v. Madan Mohan Prasad & Ors.( 2 }
G This Court held that since1 Art. 235 of the Co"stitution vests the power
of confirmation in the High Court, the power of determining the
seniority in the service is also with the f!igh 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 Consti-
H tution, if there be a rule.
(I) [1972] 2 S. C.R. 251.
(2) [1976] 3 S. C. R. 110.
HARi DATT v. HIMACHAL PRADESH (Desai, J.) 381

The administrative side of the High Court having chosen not to A
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, statu-
tory or otherwise, governing promotion of persons to the p~st of
DSJ/ ADSJ as there is no such rule. The impugned appointments B
appear to have been made by promotion of those belonging to suJ>.
ordinate 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, there-
fore, no substance in the contention that the promotion of respaHdents c
3, 4 and 5 to the post of DSJ I ADSJ and th~ promotion of respondents
6 and 7 to the selection grade post were in ;iny manner invalid.

Before we conclude it must be pointed out that where the Govern-
ment acts on the recommendation of the High Court and the action
of the Government is challenged by way of a writ petition, in order I>
to facilitate appreciation of issue~ raised, the administrative side of
tht: 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 appel-
lants in their writ petition requested the High Court to produce the
proceedings which culminated in the reconnnendation of the High E
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
issue•. Just and fair adjudication must not only inform the admiitis· F
trative 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 p-Ost
of District Judge being a post of status and responsibility in the judi- G
cial hierarchy must only he merit, seniority having no or very litile
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 th!" one hand recommended respon-
dents 3, 4 and 5 according to their seniority as it appears to be the
case, when the vacancies occurred and accepted their appointment B
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 SUPREME COURT REPORTS [1980] 3 S.C.R.

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.
B
Having examined· the matter in all its ramifications we are no
substance in this appeal and the same is dismissed with no order as
to costs.

S.R. Appeal dismissed.