Holding

Appointments of District Judges must be made by the Governor in full consultation with the High Court, and promotions without such consultation are void, irrespective of seniority.

Summary

Four Sub‑Judges were recommended by the Jammu & Kashmir High Court for promotion to District Judges. The State Government, relying on a Cabinet sub‑Committee, appointed four other officers, ignoring the High Court’s recommendations and without communicating any counter‑proposals. The petitioners filed writ petitions challenging the validity of those appointments and sought a certificate of fitness to appeal; the High Court declined to hear the writ but granted the certificate, which the State later contested. The Supreme Court held that the Governor must appoint District Judges in consultation with the High Court, and that mere seniority is not the sole criterion; suitability must be considered. Since the State made the appointments without effective consultation, the promotions were declared void, but the judgments delivered by the appointed judges during their tenure were upheld. The Court revoked the High Court’s certificate and granted special leave to appeal, allowing the petitioners’ appeal.

Issues considered

The Governor’s power to appoint District Judges under Article 109 of the J&K Constitution and Article 233 of the Indian Constitution.
Whether the requirement of "consultation" with the High Court under the said articles mandates full and effective deliberation, not merely a formality.
Whether seniority alone can be the decisive factor for promotion of Sub‑Judges to District Judges, or suitability must also be considered.
The validity of the High Court’s certificate of fitness to appeal after it declined to hear the writ petition.

Legislation cited

Constitution of Indias. Article 233, s. Article 235, s. Article 236, s. Article 50
Constitution of Jammu & Kashmirs. Article 109, s. Article 111

Subjects

judicial appointmentsconsultation requirementindependence of judiciarypromotion of subordinate judgesseniority vs suitabilitycertificate of fitnessspecial leavewrit petitionArticle 109Article 233

Judgment

593 A·

M.M. GUPTA AND ORS. ETC, ETC,
v.

STATE OF JAMMU & KASHMIR & ORS. B
October 15, 1982.

[P.N. BHAGWATI, R.S. PATHAK AND AMARENDRA NATH SEN, JJ.]
)
Constitution of Jammu & Kashmir-:-Article 109 ( corresPonding to Article 233
of the <;onstitutton of lndia)-Scope" of-Promot~on Of subordinate fudges as District-
c
Judge"s-High Court's recommendations rejected by the State Government-Promo.
ttOns and appointments made on recommendations of Cabinet Su~Committee
Va/ldlty of.

Consu/tation-·What amounts· to-Counter-proposals of State Government
without communictiting them to the High Court-Whether could be treated as
,cousu/tatiOn. D
Seniority-Whethe·r could be the only criterion for promotions.

Procedure-High Court declined to hear writ yetition againSt its owll
. administrative decision on grounds of propriety-Gr~nted certificate offitness to
appeal with consent of both parties-State, if could raise objection as to validity
·of certificate at the tilile of appeal-Supren1e Court, if has power to revoke the E
certificate and grant special leave and hear the appeal.

Per Bhagwati and A,;,arendra Nath Sen, JI. (Pathak, J. concurring in the
result)

Independence of the judiciary is one of the basic tenets and a fundamental F
frequirement of.our ConStitution. Various articles of the Constitution provide
or safeguarding the independence of the judiciary. Article 50 provides separa-
tion of the judiciary froiµ the executive.

' For som.e time past ther~ appears to be a tr"end of interference by the
executive, both at•the State and Central levels, in judicial appointments. This
has resulted in-prolonged and unD.ecessary delay in making the appointments to G
judicial offices. For various reasons judicial 1offices have ceased .to attract
talented members of the Bar and even when competent members of the Bar arc
perstiaded to accept the office of a High COurt Judge or of .a District Judge they
eventually withdraw ·their consent. both because of the inordinate delay in
making the appointmeD.ts as well as of tb'e various restrictions sought to / be H
imposed..
594 SUPREME COURT REPORTS [1983) I S.C.R.

A Article 235 or the Constitution vests control or the judici~l administration
completely in the High Court except in certain Circumstances. In these _matters
the constitutional requirement is that the Governor must act in consuJtation ,.
with the High Court. If, in the matter of thes~ apppintm"ents. the High Court is
sought to be ignored and the executive chooses to make the appointments, the
independence of the judiciar_y would be affected. It is necessary that healthy
conventions and proper norms should be evolved for safeguarding the indepenM
B dence of the judiciary in coDformity with the requirements of the Constitution.

Normally, as a.matter of rule, the recommendations made by the High
Colirt fOr the appointment of a District .Judge should be accepted by the State
Government and the Governo·r should act on the same. Where the State
Government does not agree with the recommendations of the-High Court it
should communicate its viCws to the High Court so that the High Court may
c consider tho matter once again. The State Government must have complete
and effective consuitatiOn with the. High Court iO the matter. Efficient and
proper judicial administration being the main object- of these appointments,
there should be Do difficulty in arfiving at a consep.sus as both the High Couft
and th~ State Government must necessarily approach the question in a detached
manner for achic5vi~g the objective of getting proper District Judges for tl;le ·due
administration of justice.
D
Facts:
To fill up four vacancies of District Judges in the State, the High Court,
'after considering the merit and suitability of 12 eligible officers in the cadre of
Sub-Judges, recommended four names to ·the Governor. The State Govern·
meat asked the High Court to send the confidenti_al reports of all the officers
E considered for the post. While se;nding the repOrts, the High Court had also
sent its comments justifying the selection and set out in detail the reasons for
supersession of senior officers. However on the basis of the recommendations
of a Cabinet Sub·Coinmittee constituted by the State Government to make its
recommendations on this point, the Law Secretary communicated to the
Registrar.of the High Court approval of the Governor for the promotion and
appointment as District and Sessions Judges certain officers other than those
F recommended by the High Court. While giving postings to them the High
-~ .
Court recorded a minute that their postings "should not be deemed as consulta-
tion with it in terms of Article 109 of Jammu & Kashmir Constitution.

Four of the Sub.Judges whose names had been recooimended by the High
Court for appointment as District and Sessions Judges but were rejected by ·the
Governmeni. filed a writ petition in the High Court_ questioning the validity of
G the Government's action. In that petition, the Hi8h Court was made one of
the respondents.

On the'.question whether it would be proper for the High Court to hear a
writ petition impugning an order passed by it in its administrative capacity, with
·the consent of both the petitioners and tho- respondent·State, the High Court
H declined .to bear .the petition. Since, however, tlle respondent·State did not·

) '

'
M.M. GUPTA V. J & K_STATE 595

have any objection to grant to the petitioners a certificate of fitness to file an 1\ I
appeal in this Court, the High Court granted the certificate holding that the
,.../ •, petition involved interpretation of Article 109 of ihe Co.nstitutio·a of Jammu & ·
Kashmir and also that it raised a substantial. question Of law of general public
.\
importance.

Meanwhile the State obtained special leave to appeal against the order of .
the High Court alleging that the High Court had not decided any point raised in ,B
the writ petition on the ground of juqieial prciPriety and that therefore the
High Court· sh-ould not have granted. the certificate Of fitness to appeal.

The petitioners i~'tbe High Court bad also filed a :writ petition under
/~

)
. '
Ar.Ucle 32 of.the Constitution for substantially the same reliefs claimed by theni
in their writ petition in High Court~ _ --
c
It was ·contended on behalf of the appellants that Article 233 (which·
corresponds to Article 109 of thC Constitution of Ja'mmu & Kashmir and which
bas been judicial1y interpreted by this Court in a number of,cases) deals with
appointment, posting and proinotion of District Judges but doe~ not deal with
pfomotioo of subordinate judges to the post of District ,Judg.. s and that promo-
tio~ of subord_!9ate jtidges is vested in the High Court and that therefore
1
appoiotmeilts -r;Dade by the Government without consulting the High Court D
were void

The State on the other hand -contended tbat consultation contemplatec;l by
this Article does not mean. either concurrence or recommendaqon 'an_d· no
particular form or procedure was necessary to be followed by thO Governor for
consultation with the High Court and that in~this~case all the material which the
High Court bad submitted to the Governor amounted to consultation within
the nieaning_ of the Article. -

Allowing the appeal,.

HELD: On a proper interpretation of Articles 109 and 111 of the
Constitution of" Jammu &·Kashmir, the Govetnor is _-1he competent authority
·to appoint District_ Judges and .the Power of appoint.meat is not . ves~ed in ihe F
-.....,.____ -
! _ -~~High Court. This is settled by a long ~line of decisions of this Cour_t. [609 E-F]
-
/

Merely because the power of appointing these officers is -vested in the
a·overnor, it cannot be said that it would lead tQ the sub-s~rvieoce of the~·
judiciary to the· executive and the independence of the judiciary would be
undermined.'. The power to make the appointmeOts conferr"ed on the Governor G
has to be exercised by him in consultation with the High C~urt. This provision
has been incorporated in the Constitution to· safeguard the independence of the
judiciary. [609 C-D]
.. it is equally well settled i.bat ·consultation or deliberation is not complete
or effective before the parties thefeto. make their respective· points of view
knOwn to the other or others an~ tjJs9us~ ~q.Q ~~$mine the ·relative .met-its of
596 SUPREME COURT REPORTS (1983] 1 S.C.R.
"
A their views. If one party makes a proposal to the other who has a counter-
proposal in his mind which is not communicated to the propo~cr, the direction
to give eff~ct to the counter-proposal, without anything more, cannot be said
to have been done after consultation. [625 B·CJ

Chandra Mohan v. State oi Uttar Pradesh, [1967] I S.C.R.77, Chandra·
mouleshwar Prasad v. Patna High Court & Ors., [1970] 2 S.C.R. 66, High
Court of Punjab and Haryana etc. v. State of Haryana, [1975] 3 S.C.R. 368;
followed. ·

In the instant case the counter-proposals sought to be made by the
Government in the matter of these appointments were never communicated to.
the High Court and the High Court's views on these proposals were never asked
for. The High Court was not at all consulted in the matter of the Government's
G proposal to appoint the respohdents as District Judges. [624 G-H; 625 A]

Secondl}'., the G·overnment, without any discussion or deliberation with :\
the High Court, refused to accept its recommendation and made the appoint&
meat on the basis of seniority. Though seniority is a relevant factor in promo&
ting subordinate judges as District Judges it is not the only Criterion. The true ·
test is the suitability of the candidate. If on a conS:ideration of all the relevant
0 factors the High Court comes to a Conclusion that the performance of a senior
officer was not meritorious .enough to entitle him to promotion, it cannot be
compelled to recommend such an officer merely on )he ground of seniority
because the High Court is primarily entrusted with the judicial administration
in the State. The High Court has the advantage of judging the suitability of a
person, taking into consideration his .overall performance in the previous job
over a long period of time. [627 B-FJ
E • J
·After declining to hear the petition on grounds ·of judicial propriety, the
High Court granted the certificate with . the consent of the parties since the
petition involved interpretation of Article 109 of the Constitution of Jammu &
Kashmir. It is unfortuflate that the State, after having agreed to the course
adopted by the High Court, should raise objections· as to the validity of the
certificate at the stage of appeal in this Court. ' Undoubtedly the question raised'
F is a substantial question of law of. general public importance. Even assuming
that the certificate granted by the High Court was not proper this Court could
always grant special leave where the question raised deserves to be considered
· _ by it. [600 F·H; 601 A-BJ

In the instant case while declining tO hear the matter the High Court
vacated the stay granted ear1ier, the result of which was an eventual refusal to
G entertain the writ petition, In the facts and circumstances of this case this is a
special case in which this Court can rCvoke the certificate and grant special leave
to the petitioners for filing an appeal, [601 D-E] - ·-
Since 'the question involved in this case is substantially the same, both in
,_
H the appeal as well as in the petition under· Article 32 of the Constitution the
question of maintaiop:bility of the writ petition becomes purely academic. [_601 H]
M.M: GUPTA v. J & K STATE (A.N. Sen, J.) .• 597
[Pathak, J. agreed with the ;observations of the majority in concurring the A
incompetence of the certificate granted by the High Court and the maintainability
of the writ petition and in the order granting special leave to appeal. On merits
his Lordship agreed with. the majority that the promotions made by the State
Government were contrary to law iriasmuch as there was no consultation between
the State Goveniment and the High Court before the promotions were made.
[628 'G-H; 629 A]

. His Lordship, however, did not proPose to .express any opinion on the
B
aj)pellants' contention that the promotions fall -outside' the scope of Article 233
of the Constitution. [629 Bl

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1349
)

:"
of 1982.

(From the judgment and order dated the 8.3.1982 of t.he
c
Jammu & Kas.hmir High Court in W.P. No. 668 of 1981.
!

AND
,
. .. D
Civil Appeal No. 1997 of 1982.

Appeal by special leave from the judgment and order dated
the 8th March, 1982 of the Jammu & Kashmir High Court in
W.P. No. 668 of 1982.
ANO E
Writ Petitions Nos. 7186·82 of 1982.
(Under article 32 of the Constitution of India)
K.K. ·venugopal S.P. Gupta, R. Salish, E.C. Aggarwala and
Krishnamanan, for the appeallants in C.A. 1349/82 & for the Peti- B
~ tioners in WP. Nos: 2186-89.of 1982.

"'-· P.R. Mridul and Vimal Dave for the Respondents in Civil
·• J Appeals.
S.N. Kacker and Altaf Al.med, for the Respondents in W.Ps.
G
S.N. Kackar and Altaf Ahmed for the Appellant in C.A.
1997/82.
The following Judgments were delivered
AMARENDRA NATH SEN,' J. Four Petitioners belonging to the H
cadre of Sub;rdinaie Judiciaf Service in the State 'or Jammu &
Kashmir and whose names were recommended by the High Court
598 '
SUPREME C<)URT REPORTS (1983] I s.c.R.

A ' for appointment a~ District Judges, . filed· a Writ ·Petition in the
High Court of Jammu & Kashmir (Writ Petition No. 668 of 1982)
challenging the validity of appoi1,1tment as District Judges of the
Respondents Nos. 3, 4, 5 and 6 made hy the Govenor of the State.'
In the said Writ Petitions had made the ·State through the Chief
Secretary, Respondent No, I, the High Court of Jammu & Kashmir
B through the Registrar, the Respondent No. 2 and the four persons
who were appointed District Judges by the Governor, as Respon-
dents 3, 4, 5, and 6. A learne~ Single Judge of the High Court
directed ncttice to issue to Respondents Nos I to 2 in the first
InstaI1ce to show cause ·as to why the Petition should not be
admitfed and the Learned Single J.udge further directed that the
c matter should be listed before a larger Bench for admission. The
Learned Single Judge also gran\e'd· stay of the operation of the
order appointing the Respondents Nos. 3 to 6 pendfog disposal of
the admission matter~ The matter came up. before a Dfvision
Bench on 27.2.1982 for admission of the petition and at that time a
question was raised as to whether it would be proper for the High
D Court to hear the Writ Petition since the Court on the
administrative side had already taken a decision which forms
the basis of the claim of the petitioners in the· Writ Petition.
On 27.2.1982 after the arguments bad been heard at length,. the
matier was ·adjourned to -8.3.1982 for further arguments. It
appears that on 8.3.1982 when ihe matter came up for further
' E arguments learned Counsel for the· Respondents submitted that in j_
..fairness and on the grounJs of judicial propriety, .the High Court
might not hear the Writ Petition. It appears that it was submitted
. by the iearned counsel for the Petitioners that they would have no
objection to that course being adopted provi~ed a certificate of
F. fitness to file an appeal in the Supreme Court was granted in their
favour. It appears that ihe learned Counsel for the ,Respondents
did,not have any ob]ecti9n to the grant of this prayer of. the
Petitioners. In view of the agreement between the iearned Counsel ·
for the·parties, the High Court declined to hear the petition on the
G ground of judicial propriety and vacated the order for ,stay passed
on 27.11.198.I; and. the High Court granted a "certificate ·of fitness
tci the Petitioners to file an appeal in the Supreme Court, holding
ihaMbe point involved in the Writ Petition relating to the inlerpre-
tation of Art. 109 of the Constitution of Jammu & Kashmir, taises
a substantial question of law of general public importance and the
H case was a fit one in ·which a certificate of fitpess should be , granted,
'
M.M. GUPTA v. J & K STATE ( il.N. ·sen, J.) 599

A
~Civil Appeal No. 1349 of 1982 is the Appeal filed by the Appel-
lants on the strength ofthe certificate granted by the High Court .
. ,.
·- _,)
Against the Judgment and Order of the High Court
. dated 8.3.1982 granting certificate of fitness for filing an appeal
in this Court after declining to . hear the Writ Petition and after
B
vacating the stay, the State obtained Special Leave from this Court
to prefer an appeal and Civil App_eal No. 1997 of 1982 has been filed
by the State with leave of this <;::ourt against this judgment and.
Order of the High Court dated 8.3.1982.
)
The Writ Petitioners in the High Court who •are also· tho
Appellants in Civil Appeal No. 1'349of1982 _in this Court' ~y cer- 0
. tificate granted by the High Court, have filed a. Writ Petition in 'this
Court under Art •. 32 of the Constitution substantially for the same
reliefs claimed in the Writ Petition. in the High Court and now
forming the subject-matter of Civil· Appeal No. 1349 of 1982.in this
Court. In the Writ Petition filed in this Court the Petitioners have
D
prayed for the issue of a Writ of Certiorari or in. the nature th~reof,
quashing the order of appointment of respondents nos. 3 to 6 as
District Judges, for a Writ; Order or Direction in the nature of quo
warranto"quashing the appointment of-··Respondents Nos. 3 to 6 as
,. . District Judges and a Writ of Mandamus directing the State to
appoint the Petitioners as District and Sessions Judges in accordance
E
with the recommendations made by the High. Court of Jammu &
Kashmir. The Writ fetition filed by the Petitioners bears . writ
Petition Nos. 2186 to 2189 of 1982. This judgment will· dispose of ·
all the three matters.

As certain preliminary objections have been raised, we consider F
• it proper to deal with the same in the first place. ·
"'/- '
. ~- An objection has been taken with regard to the maintaiaability
f of Civil Appeal No. 1349 of i°982 filed in this Court with certificate
• granted by the High Court. It has been urged that this appeal is G
.incom(letent as the . certificate granted by the High Court is invalid
and improper: . The argument is· that the High Court in· its
judgment has not decided any point raised-. in the Writ
Petition and the High Court has declined to deal with the matter on
the _ground of j'idicial . propriety. It is commented that the only
.~ decision of the High Court is the refusal on the part of the High R
Court to hear the Writ Petition on the ground of judicial pro-
\
600 SUPREME COURT REPORTS (1983} 1 S.C.R,

A priety and this decision cannot be the subject matter of a certificate
for fitness for filing an appeal in the Supreme Court.
'
It is on this ground that the State obtained Special Leave from
· this Court against the judgment of the High Court and Civil Appeal
No. 1997 of 1982 has been filed by the State with leave granted by
8 Ibis Court.

It is, no doubt, true that the High Court did not deal .with the
Writ Petition on its merits as it had been submitted before the High
Court on behalf of the Respondents that the High Court should
not hear the Writ Petition on the ground of judicial propriety,
.C because th.e decision _taken by the High· Com! on the administr~tive
side forms the basis of the claim of the Petitioners in the Writ Peti·
lion and th.e Petitioners were agreeable to the course being adopted
by the High Court, provided certificate of fitness to file an appeal · .
in the Supreme Court was granted ·in their favour. The judgment
D of the High Court records that the counsel for the Respondents had
stated that the respondents had no objection to the grant of the said.
prayer of the Petition.ers and the judgment further records that in
view of the ~greement between the counsel for the parties, the Court
granted certificate of fitness to the Pe.titioners to file an appeal in the
Supreme Court while declining to hear the petition on the ground of
JjJ. judicial propriety.

It is true that the High Court while granting the certificate had
not gor.e into the merits of the writ petition, as the High Court had
declined to hear the petition on ~ tbe ground· of judicial
F· propriety. It is, however, to be noted that the High
Court had adopted the said course as the said course was
agreed upon by the learned counsel for the parties. It may also ,,,/"--
be noted that the High Court in its judgment has pointed out that
the interpretation of Art. 109 of .the Constitution of Jammu & •
Kashmir is involved in the writ petition and the said question is a ·
G substantial question of law of. general public importance. It appears
to us to be rather unfortunate that the State should adopt this
attitude and should raise these objections particularly after !:laving
agreed before the High Court to the certificate being granted .. It
appears that in the peculiar facts and circumstances of this case,
H the High Court which found it embarrassing to deal with the writ
petition particularly in view ?f the objection raised on behalf of the
M.M. GUPTA v. J & K STATB (A.N. Sen, J.) 601

State on the ground ·or judicial propriety, granted certificate with the
\
A
agreement of the parties and declined to hear the mattet We have
.no doubt in our mind. that the question raised in the writ petition is
a substantial question of law of general public importance. If on
the ground of any technicality, the certificate granted by the High
. . '
Court can be said to be not a proper one, 'this Court can always B.,
grant special leave in a· proper case which deserves to be consid.ered
by this Court. We may further note that the High Court while
declining to bear the matter on the. ground of judicial propriety
b.ad also vacated the stay which bad been, earlier granted by, the
High Court. The real effect of the order amounts to a virtual
refusal to entertain the writ petition. The certi!jcate granted. by a c
High Court in any. case after declining to bear the same on any
ground may not be appropriate and may not be held to be valid and
may have to be rexoked. The present case, however, is a fit case,
particularly in view of the peculiar facts· and circumstances of this
.case and the important" question of law of general public importance
involved,. where this Court should grant special leave to the D
Petitioners. Accordingly, we revoke the certificate granted by the
High Court and we grant special leaye to the Petitioners for the
filing of this appeal. We.treat '.this appeal as one filed with leave
granted by this Court.
,
E
The other prelim.inary objection is with regard to the maintain-
ability of the Writ Petition filed by the Petitioners under ·Art. 32
i
or· the Constitution. It. is urged that there is no violation of
. fundamental rights of the Petitioners and the jurisdiction of this
Court under Art. 32 of the Constitution is not, therefore, attracted
and the writ petition filed in this Court is not maintalllable. It bas, F
however, been pointed out on behalf of the Petitioners thatthe
violation of Arts. 14 and 16 of the Constitution has been alleged
and the Writ Petition under Art. 32 is, therefore, competent. The
subject matter of the .writ petition is absolute)y the same as that
• of tlie appeal No. 1349 of 1982 and identical questions are involved
· in these two proceedings. As we have granted special leave to G
the Petitioners in Civil Appeal No. q49 of 1982, the merits of the
case have in any eve'lt to be decided. The question of maintain-
ability of the writ petiti.on involving the very same questions
becomes purely aeademic, The preliminary. objections are accor-
dingly disposed of. We now proceed to deal with the case on its H
·.merits.
602 8UPRBMB CoURT RBPORTS (1983] I S.C.R.

A -The validity of the appointme~t of respondents 3, 4, 5 and 6
•. as District Judges is the subject ~alter of challenge in the writ-
petitfon filed in the High Court and also in this Court.

Mr. Venugopal, learned counsel appearing on behalf of the
appellants who filed the writ petition in the High Court and who-
B have also filed the writ petition in this Court, have urged two main
grounds in support of their contentfon that the appointment of
r~spondents nos. 3, 4, 5 and 6 are illegal and invalid.

(I) The first ground of attack is that· on a proper considera-
tion of Art. 109 and Art. I IJ of the Constitution of J~mmu and
c Kashmir, the Governor does not have any power to appoint District !!.
Judges from ·the cadre of Subordinate Judges of the State and this f'
power is vested in the Higli Court. \

(2) The secopd ground of attack is -that even if it be held
D on a consideration of the aforesaid Articles that the Governor is
the ~uthority competent to make the appointment, the appointnient
must be made by the Governor in consultation with the High
Court; and, as in -the instant case, the appointments· have been "
made with-out any consultation with the High Court, the appoint-
ments must be held to be in breach of the constitutional provisions
E and, therefore,_illegal and invalid.

Mr. Venugopal has drawn our attention to Art. 109 and
Art. 111 of the Constitution of Jammu and Kashmir. The said
two Articles read as follows :-

F "109. Appointment of district Judges. (I) Appoint-
ment of persons to be, and the posting and promotion of
district Judges in the State shall be made by the Governor
in consultation with the High Court.

(2) A person not already in the service of the State
G shall only be eligible to be appointed a district Judge if he
ha.s been for not less than seven years an advocate or
pleader and is recommended by the Hign Court for
appointment." .
H
"111. Co_ntrol over subordinate courts-The control
over. district courts and courts subordinate ther,eto includ-
M.M.'GUPTA v. J & K STATE (A.N.. Sen, J,) 603

" .A
· ing the posting and promotion of, and the grant of leave
to, persons belonging, to the judicial service of the State
and holding any post inferior to the post of district judge
shall be vested in the High Court, but nothing in this
section shall be construed as taking away from any such
person any right of appeal which he may have under the B
law· regulating the conditions of his service or as author!·
sing the Hfgh Court to deal with him otherwise than in
accordance with .the conditions of his service ·prescribed
under· such law.

Mr. Venugopal has rightly pointed· out _that the aforesaid c
two Articles of (he Constitution of Jammu and Kashmir correspond
to · Art. 233 and Art. .235 of the Constitution ,of India.
Mr. Venugopal has fairly submitted that though the aforesaid two
Articles I 09 and ll I of the Constitution ofJam mu & Kashmir
have not come up for c consideration in any parti11ular decision,
the ·corresponding two articles )n the Constitution of India have
D
been considered and. ·interJ>reted in a number of decisions of this
Court" and the view that has.been expressed by this Court on the
interpretation ·of Arts. 233 and 235 of the Constitution of India is
contrary to the view lie wants. us now t.o accept. Mr. Venugopal has
submitted · that the view that has been expressed by. this Court in E
the earlier decision should be reconsidered in the interest of judicial
administration and for safeguarding the independence of the
judiciary. It is his submission that when a judicial officer in the
. category of subordinate . Judges is ·promoted to the category
of District Judges and becomes a District Judge, tlie Officer
concerned is so appointed as District Judge by promotion. Such F
appointment by promotion, according to . Mr. Venugop~l. clearly
comes within Art. 235. of the Constitution cif India which d~als'
with control over subordinate courts and provides :-
• I

"The control over district courts and courts subordi·
G
nate 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,
bui ·nothing in this. article shall be construe<) as takh)g · H
. away from any such person any right of appeal which he
may have under the law regulating the conditions of 'his
604 SUPRBMB COURT RePORTS (1983) l s.C.R.

A service or as authorising the High Court to deal with him
otherwise than in ·accordance with the conditions of his
service prescribed under such Jaw."

Mr. Venugopal 'has also drawn our attention to Art. 233
which corresponds to Art. !09 of the Constitution of Jammu &
B Kashmir. Art. 233 reads as follows :

"(I) Appointment of persons to be, and the posting
and promotion of, district Judges in any State shall be
made by the Governor of the State in consultation with
c the High Court exercisini: jurisdiction in relation to s.uch
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
D an advocate or a pleader and is recammended by the High
Court for appointment." •

. Mr. Venugopal argues that Art. 233 is intended to govern
the appointment of persons to the District Judges in any State and
- the posting and promotion· of District Judges. It is his argument . '
·E that Art. 233 does not deal with the case of promotion of subordi-
nate Judges to the posi of a District Judge and the promotion of
person belonging to the ju11icial service of the State and holding any
post inforior to the post of a District Judge is vested in the, High
Court by virtue of the provisions contained in Art. 235 of the Cons-
titution of India which corresponds to Art. 111 of the Constitution
F
of Jammu &. Kashmir.
.~·
It is to be noted that in the case of State of Assam and Anr ..
v. Kuseswar Saikia and Ors.(') this Court bad to deal with a similar
situation and consider similar arguments.'. The State of Assam and
G the Legal Secretary to the Govt. of Assam filed an appeal in this
Court against ·the judgment and order of the High Court of Assam,
challenging a writ of quo warranto issued by the High Court against
Upendra Nath Rajakhowa, District and Sessions Judge, Darrang
at Tejpur, declaring that be was not entitled to bold that office.
H
(1) [1970) 2 SCR 928.
;•

M.M. GUPTA v. J & K STATE (A.N,,Sen, J.) 605

The writ was issued by the High Court at the instance of Respon-
A
dents Nos. l, 2; 3 in the appeal before the Supreme Court and
these Respondents on conviction by Upendra Nath Rajakhowa in
a Sessions Trial challenged their ~onviction inter alia on the ground
that Shri Rajakhowa was not entitled to hold the post of District
and Sessions Judge, Darrang as his appointment as District Judge B
was invalid. The High Court held that the appointment of
Rajakhowa as District and. Sessions Judge was void because th~
Governor.had no power to make the ·appointment .under Article 233
of the Constitution and Shri Rajakhowa• could only be promoted
> by the High Court under Article 235. According to the High
Court, this was a case of 'promotion' of a person belonging to the c
judicial service of the .State and the High Court was the authority
to make the 'promotion' under Article 235. This view of the
High Court was negatived by this Court and this Court.llllowed
. the appeal and held at pp. 931-33:

"Chapter VI of Part VI of the Constitution deals with D
Subordinate Courts. The history ~f this Chapter and
why judicial services came to be provided for separate
from other services has 'l?een discussed in The State of
West Bengal v. Nripendra Nath Bagchi( 1). .This . service
was provided for separately to make the office of a District
Judge completely free of executive control. · The Chapter E
contains six articles (233 t!) 237). We are not concerned
with Art. 237 in the present case. Article 235 vests in the
High Court the control over District Courts and Courts
subordinate thereio, including the posting and promotion
•
· and grant of leave to persons belonging to the judicial
service of a State and holding any post .inferior to the post F
of D!stri<(t Judge. By reason of the definitions given in
Art. 23 6 the expression· 'judicial service' means a service
consisting exclusively of persons intended to fill the post of
• I
District' Judge and other Civil Judicial posts 'inferior to
the District Judge, and !he expressi?n 'District Judge'
G
includes among others an aqditional District Judge and an
additional Sessions Judge. The promotion of persons
belonging tO the judicial service but ho_l~ing post inferior
to a District Judge vests in the High Court. As the
H
(I) [1966] I S.C.R. 771.

•
'

606 SUPREME COU:RT RRPOTS [1983) I s.c.R.
A expression -,District Judge' includes an Additional District
Judge and ail Additional Sessions Judge, they rank abov~
those persons whose promotion is vested in the High -,
Court ·under Art. 235. Therefore, the promotion of
persons . to be additional District Judge- as Additional
Sessions Judges is 'not vested in the High Court. That is
B the function of the Governor under Art. 233. This
follbws from the language of the Article itself :

(a) Appointments of persons to be, and the posting and
promotion of, district Judges in any State shall be
c made by the Governor of the State in consultation
with the High Court exercising jurisdiction in reiation
to such State.

The language seems to have given trouble to the High Court. The
D High Court holds :

(I) 'appointment to be' a District Judge is to be made
..
by the Go.vernor in consultation w'.th the High Court vide
Art. 233; and

(2) 'promotign of' a District Judge and not promotion
'to be ·a District Judge' is also to. be made by the
Governor in consultation with the- High Court vide
Art. 233.
•
The High Court gives the example of selection grade
posts in the Cadre of District Judges which according to it
is a . case. of promotion
. of a District Judge.
The reading of the article by the High Court is with
respect, contrary to .the grammar and punctuation of the
article. The learned Chief Justice seems to think that the
expression 'promoti~n of' governs 'District Judges' ignoring .
the comma that. follows the word 'of'. T_he article, if
suitably expanded, reads as under :

'Appointments of persons tobe, and the posting
H · and promotion of (persons· to· be), District Judges
cle.'

\
r

M,M. GUPTA V. I & K STATE (A.N. ·sen, J.J.. 607

. I.t means that appointment as well as promotion of A
persons to be District Jridges 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.
B
/ Tile article is intended to take care of both. · It concerns
• initial appointment and initial promotion of persons to be
eitl!~r District Judges or any of' the categories included
in it. Further pr6motion 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
c
Additional Sessions Judges, Therefore, when the Governor
appointed Rajkhowa. an Additional District Judge, it
could either be an .'appointment' or a promotion under
Article 233. If it was. an appointment is was clearly a
matter under Art. 233. If the notification be treated as D
'promotion' of Rajkhowa from the junior service to the
' . .
senior service it was a 'promotion• of a person to be a
District Judge which expression, as shown above, includes
an Additional District Judge. In our opinion it was the
latter. Thus there is no doubt that t\>e appointment of
Rajkhowa as Additional District Judge by the Governor E
was a promotion and was made under Art. 233, it could
· not be made . under Art. 235 which deals with posts
subordinate to a 'District Judge including an additional
District Judge and an additional Sessions Judge. The
High Court was in error in holding 'that the appointment
of . Rajkhowa to the position of an additional District F
Judge was invalid because the order wa.s· made by the
Governor instead of the High Court.' The appintment or
promotion was perfectly valid. and according to the·
-' constitution."

' ' G
In the case of $tate of West Bengal v. Nripendra Nath Bagchi('),
this Court while considering' Arts. 233 and 235 of the Constitution
elaborately traced the background and the history of the constitu-

(I) (1966] 1 S.C.R. 771,
H
608 SUPB.BMB COURT RtiPORTs · (1983] l s.c.a.

A tional prov1S1ons relating to the judiciary and this Court held at
page 786 :

·'Articles 233 to 235 make a mention of two distinct
powers, The first is power of appointments of persons,
their postings and promotion and the other is power of
B
control. In the case. of the District Judges, appointments
•of persons to be and posting and promotion are to be
made by the Governor but the control over the District •
Judge is of the High Court."

c The view that on proper construction of Article 233 and 235 the . _ ...
appropriate authority, to make the appointment of District Judges is )
the Governor and not the High Court has· also been reiterated by
\
·this Court iil later decision of this Court.
,
1n a recent decision of this Court in the case of Chief Justice of
D Andhra Pradesh and Ors. v. V.A. Dixltul!J and Ors.(') 5 Judges Bench
of this Court held at page 46 : ,

"Article 233 gives the High Court an effective voice in
the appointment of District Judges. -Clause (I) of the Article
peremptorily requires that appointments of persons to be,
E and the posting and _promotion of district judges' shall be
. made by the Governor in consultation with the High Court.
Clause (2) of _the Article provide~ for direct appointment of
District Judges from Advocates or P,leaders of uot less
than seven years standing, who are not already fo the
service of the State or of the Union. In the matter of such '
F- direct appointments, also, the Governor can act only on
the recommen<lation of the High Court. Consultation ~ith
the High Court under Article 233 is not an empty formality.
An appointment made in direct or indirect disobedience of
this constitutional mandate; would be invalid. 'Service'
which under clause (I) of Article 233 is the first source of
G recruitment of District Judges by. promotion means the
'Judicial services' as defined in Article, 236. "
In another recent decision of this Court in the case of
Harl Datt. Kainthla & Anr. v. State of Himachal Pradesh and Ors.(')
H
(I) [1979] 2 s.c.c. 34.
(2) [J9SOJ 3 s.c.R. 360 •.
\

• M.M. GUPTA v. J & K STATE (A.N. Sen, J.) 609
! .A this· Court referred to earlier decision of this Court and observed at A
\
page 372

"Arlicle 233 confers power on the Governor of the
, I
State to appoint persons either by direct recruitment or by '
promotion from amongst· those in the judicial service as
District Ju~ges .... " ,
We have to note that on a proper interpretation of Art. 233
and 235 of the Constitution this Court has consistently held that
.,. the appointi\lg authority is the Governor _and this view bas held the

. '
field for ever two decades. In our opinion this is the correct view
on proper interpretation of tbe said articles - and requires no
reconsideration .. The argument of Mr. Venugopal that this inter-
c
pretation will lead to the sul:i-servience of the judiciary and the
independence of the judiciary will be undermined is not convincing,
as the power to make the appointment conferred on the Governor
has to be exercised by him in consultation with the· High Court.
This provision regarding exercise of power by the Governor ·in . D
consultation with the High Court is incorporated to safeguard the
independence of the judiciary. We'bave earlier pointed out that
- ' (\rt. 109 and, Art.· ll 1 of the constitution of Jammu & Kashmir
correspond to Art. 233 and '235 of the Constitution of India.• In view
of the interpretation of Art.· 233 and 235 of the Constitution' of
India consistently given by this Court, and with which we - are in E
entire agreement, we hold that' on a'
proper interpretation of Art.
109 .and 11/ of the Constitu'tion of Jammu and Kashmir, the
Governor is the authority competent to appoint .the. District Judges
I, ·and the power of appointment of District Judges is not vested in
i -i
._Jhe High Court. The first contention of Mr. Venugopal _cannot, -F
therefore, be accepted and is negatived. ·

We n~,w proceed to _deal· wilh other. contentions ~f Mr.
Venugopal, namely,- even if the· Governor be held to be the
·appointing authority the appointment by th~ Governor must be
· made in Consultation with _the High Court and in the instant case·
the appointments of the District Judges have not been made in con:
G
· sultation with the High Court and the appointments must, the~e
. · · fore, be held to be invalid and illegal. · ·
' '

Ifis necessary . to· state certain facts before we proceed to
conside~ thiS questi\,n; Four vacancies for the posts, of District and H ·-
,Sessions· Judg~s in the St.ate became· available for being filled up
'

' .
' 61.0 SUPREME COURT REPOllts (19831 I s.c.a.

A out of 12 Judicial Ofi!cers who were eligible for selection to the
posts in questions. The Judicial Officers ·eligible for selection
in the order of seniority are :

I. Shri Qazi Mohd. Muzaffar-Ud-Din

B .2. Th. Pavitar Singh
3. ~hri Harcharan Singh Bahri

4, Shri S_heikh Maqboo) Hussain
•
5. Shri G.L. Manhas

c 6.. Shri M.M. Gupta
7. Shri H.N. Mehra
8. Shri Jagmohan Gupta
9. Shri. Mohd Yasin Kawoosa

D 10. Shri O.P. Sharma
"
..
11. Shri Bashir-Ud-Din
12. Shri Sudesh Kumar Gupta

The High Court at a meeting of all the Judges held on ,
E - 29.8.1981 considered the matter and the High Court taking into
consideration the merit and suitability of all the 12 eligible
officers in the cadre of sub-judges, found the following Sub-Judges .,
fit to be promoted as District and Sessions Judges against the
available vacancies :

1'' I. Shri M.M. Gupta ,.
2. Shri O.P. Sharma _/t

3. Sbri Bashir-Ud-Din
4. Sbri Sudesh Kumar Gupta
G
it is to be noticed that the .respective position of the aforesaid
officers in the seniority list was 6, 10; II and 12. On 31.8.1981. the
Registrar of the ·High Court forwarded to the Government the
recommendations of the High Court of the said four Judicial Officers
H for filling up the said. for vacancies. The letter of the Registrar to'
the Law Secretary to the Government reads as follows : ·
M.M. GUPTA '· J & K STATE (A.N. Sen, J.) 611

"Shri G.H. Nehvi, A
Secretary to Govt.,
Law Department,
.Jammu & Kashmir Govt.,
Srinagar.
No. 9245/GS dated 31.8.1981
B

Sub :- Appointments · and -posting of District &-Sessions
Judges
.>

Sir, c
There are four vacancies available in the cadre of
0

District & Sessions Judges : two of them being available on
account of deputation of Shri Ghulam Hassam Nehvi as
Law Secretary and the creation of Additional District &
Sessions Judge's Court at Ramben and, two others on D
f account of the proposed retirement of M/s. Mohammad
·Saleem Durrani and .Mohammad Sbaffi. The matter
regarding replacement was considered in the meeting of the
Court held on 28.8.1981. The Court considered the
comparative -merit, ability and suitability of all the eligible
officers in the cadre of Sub-Judges and found the following E
sub.judges fit to,.be promoted as District & Sessions Judges
T.
against the available vacancies :

(I) Shri M.M. Gupta al present Third Civil Subordinate
.Judge, (Excise Magistrate) , 'Jammu; F
(2) Shri O.P. Sharma, at present Sub Judge (C.J.M.)
Jammu.

(3) Shri Bashir-ud·Din, ·at present, Sub-Judge, Special
Judicial Mobile Magistrate, Traffic, Kashmir. G

(4) Shri S.K. Gupta, at present; Sub-Judge (Deputy
Registrar, Jammu Wing), Jammu.
The four therefore may be promoted as officiating District
and Sessions Judges and that tl\~ir ipostings tna:'{ i,e ordered as
under:-
\
• 612 SUPRBMB COURT RBPORTS (1983) I S.C.B~

A (I) Shri M.M. Gupta, Second Additional District &
0

Sessions Judge, Srinagar (Single Member Tribunal for ,
Anti-Corruption Cases, Kashmir)
'

(2) Shri O.P. Sharma, District & Sessions Judge, Rajouri;

B (3)
- . ,
Shri Bashir-ud-Din, Second Additional District &
Sessions Judge, Jammu (Single Member. Tribunal for
Anti-Corruption cases, Jammu Province) ; ·.
'
.
(4) Shri S.K. Gupta, Isl Additional District and Sessions
Judge, Srinagar (Special Judge Anti Corruption,
c Kashmir)·
\ .
I am, therefore, to request you kindly to obtain the sanction
of the competent authority and conv~y the -same to me as early as
possible,
D
Yours faithft.lly
Sd/-
..
(S.M. Rizvi)
Registrar
E 31.8.1981

In reply to the said letter of the_ Registrar, the Law Secretary
addressed as follows :- '-.!
F ,.,,,.-.....
No. LD (A) 81/143
Sept. 15, 1981, ..
My dear Rizvi;
G
Please refer to you; letter No. 9245/GS dated 31.8.1981,
regarding appointment and posting of District & Sessions
Judges. I have been directed to request ·you kindly to
send us copy of the resolution of the Hon'ble High Court
H on the subject and also the Annual Confidential Reports
for the last 5 years pertaining to the officers proposed for
promotion and also those who are superseded.
L '

M.M. GUPTA v. I & )[ STATE (A:N. Sen! J.) 613
'
\. A
With regards,

Yours
Sd/,
(G,H. Nehvi) B

Shri S.M. Rizvi.
Registrar, c
. High Court of J & K,
Srinagar"
.·
It appears that on 24.9.1981, the Under Secretary to the
Government, Law Department, had sent a reminder to the' D
Registrar of the High Court drawing his attention to the
earlier letter dated 15.9.1981. On 5.10.81 the. High Court
~ent a· detailed letter to the Government j~stifying the
selection made by the High Court setting out in detail the
reasons for supersession of the senior Officers. In this long
letter, running into 15 pages (pp. 24-39) in paper book or·
C.A. No. 1997 of 1982), the High Court made its comments
on all the officers who· have been supersede,d. The High
Court also forwarded • ~ a copy of. the . resolution ·
dated 29.Kl981. The concluding portion of this long
letter reads :..:..

"I would, therefore; request you. kindly to have the
matter expedited and communicate the sanction' ~f the
Governor to the proposal already made as early as
possible. The ACRs of the Officers concerned for the
years.1976-77, 1977-78 and 1978-79 as also the court
G
resolution dated 29.8.1981 are enclosed herewith as
desired.''

The resolution of the F:ull Court which was .sent along with the
letter may 'be set out :
614 SUPREME CO!JaT REPORTS (1983) I S.C.R.

A LIST OF ITEMS DISCUSSED IN JUDGES MEETING
'HELD ON 29.8.1981

PRESENT:
.\

B The Hon'ble Mufti Baha-Ud-Din Farooqi Acting Chief Justice
The Hon'ble Justice Dr. A.S. Anand Judge
The Hon'ble Mr. Justice I.K. Kotwal Judge
The Hon'ble Mr. Justice G.M: Mir '
Judge
c Preamble· Resolved
3/-Appointment of Shri Ghulam 3/- After having consi-
Hassan Nehvi, Distt. & Sessions dered the comperaiive
Judge, as Law Secretary and crea- qierit, ability and suitabi-
of Additional District Court at lity of all the officers in
D Ramber filling up of the vacancy in the cadre of Sub-Judges
this behalf we are of the opinion
that the following sub-
Judges are fit to be
\
promoted as District &
Sessions Judges, against
E the available vacancies :-

I. Shri M.M. Gupta at present Third Civil· Subordinate .
Judge (Excise Magistrate, Jammu)
· 2. Shri O.P. Sharma, Sub-Judge, C.J.M. Jammu.
F
3. Shri Bashir-Ud-Din, Sub-Judge (Special Mobile
Magistrate Traffic), Srinagar. ·

4. Shri Sudesh Kumar Gupta, Sub-Judge (Dep'!ty ?

Registrar, Jammu).
G We direct that recommendation shall be made to. the Governor
·accordingly.

We further direct that their place of postings shall be as· follows :-
•
I. Shri M.M. Gupta, Second Addi. Dist. Judge (Single
M~ml>~r Tribunal), Srinagar.
M.M. GUPTA v. J & K (A.N. Sen, J.) 615 .

· 2. Shri O.P. Sharma, District & Sessions Judge,
Rajouri.

3. Sliri Bashir-Ud-Din, 2nd Addi. District & Sessions
·Judge, SM. T. Jammu)
4. Shri S.K. Gupta (!st Additional District and B'
Sessions Judge) Special Judge, Anti Corruption
Srinagar.

The further recommendation shall go to the Governor
.~ aecordingly.
Sd/- Hon'ble Acting Chief Justice c
) Sd/- Hon'ble Justice Dr. A.S. Anand
\
Sd/- Hon'ble Mr. Justice I.K. Kotwal
Sd1- Hon'ble Mr. Justice G.M. Mir
D
It appears that the meeting was attended by all the Judges of
the High Court.
On.the 16th Novem.ber, 1981, the Secretary to the Govern-
ment, Law· Department, addressed the following letter to the
Registrar of the High Court :- ·

No. LD (A) 81/143
Dated : 16.11.1981

The Registrar, F
""""'~ High Court of I & K,
..__._ ·Jammu. .

Subject :-Appoi!1tment of District and Sessions Judges.
Sir, G

The Governor bas been pleased to approve the promotion
of the following Judicial Officers as District and Sessions Judges :
•
I. Qazi Mohammad Muzaffar-Ud-Din. H
2. Shri Pavitar Singh.
616 SUPRBMB COURT REPORTS [1983] 1 s.c.tt

A 3. S. Harcharan Singh Bahri.
4. Sheikh Maqbool .

. The' appointment of Qazi Mohammed Muzaffar-ud-
Din will 0however, be deferred till he is cleared of the charges
against him. A post for this purpose will be kept vacant
.8 . and in case he is exonerated of the charges, his appoint-
ment will be given retrospective effect from the date of the
is•ue of the orders regarding other three. '

Accordingly, a separate proposal may be sent by the
High Court regarding the post of the promoted Officers. .•
c Yours faithfully.
. . Sd/-
(G.H. Nehvi)
Secretary to Government
Law Department.

It appears that after the recommendations made by the High
Court. and the detailed reasons by the High Court for recommending
the petitioners . in supersession of the other officers bad been for·
warded to the· State Government by lbe High Court, the State
Cabinet constituted a sub-Committee which had gone into the
.l!l matter and bad made its recommendations. It appears t.bat on the
basis of the recommendations made by the Sub-committee of the
State Cabinet theletter of the Law Secretary dated 16th November
1981 to the Registrar of the High Court was addressed, informiQg the
Hi.gh Court of the Governo.r's approval to the promotion of Res-
pondents Nos. 3, 4; 5 and 6 as Djstrict and Sessions Judges.
F '
' On receipt of the aforesaid communication from the Govern- /..,-
ment dated 16.11.1981 the High Court on 24.11.1981, at a meeting--·
of the Judges recorded !he following minutes :-

"Co.pi of extract from the Minutes of Judges meeting
G held on 24.11.1981

Preamble Resolved
I. Law Secretary's letter ( 1) Considered. The pos~ing·
H No. LD (A) 81/143 dated ·of the Officers is pro· ...
16.1 I.1981 regarding posed as under :-

•
M.M. GUPTA v. J & K STATE (A.N. Sen, J.) 617

appointment of s)Shri , (i) Shri Pavitar Singh-Dis-
A
Qazi Mohd. Muzaffar- trict and Sessions Judge,
Ud-Din, Pavitar Singh, · Leh-Kargil.
· H.S. Bahri and Sheikh .(ii) S. Iiarcharan Singh
Maqbool Hussain as Bahri...:. District & Ses·
District and Sessioqs sions Judge, Rajouri.
Judge.: ...Submission of (iii) Sheikh Maqbool Hussain
8
proposal regarding their ist Addi. District &
.posting. Sessions Judge, Srinagar.
It ·shall be pointed out
to the Government that
the communication of
the postiilgs shall not
.c
be deemed as consulta·
tion with the C~urt in
terms of Section 109 cif
the Constitution of
Jammn and Kashmir in 0
so far as the promotion
of these officers is con-
cerned.;'

Thereafter, 011 26.11.1981, the following order was passed by the State
;
E
Government :-
"Government of Jammu and Kashmir Civil Secreta-
riat·: Law Department
'
.
I .
Sub :-Officiating appointment of District & Sessions Judges.
' ' F
ORDER NO. 717-LD (A) o_f l981 dated 26.iU981'
Sanction is accorded to the officiating. appointing of the
following sub-Judges as District and Sessions Judges in the scale of
·Rs. 1100-1600 against avaiiable ,vac~ncies with the posting r as' shown
against each ill" consult11_tion with the Hon'ble High Court :- G

(I) Shri Pavitar Singh , District and Sessions Judge,
" Leh-Kargil
(2) Shri Harchran Si~gh District and Sessions Judge, H
Bahri Rajouri
618 SUPRBMB COURT REPORTS (1983] 1 s.c.a.
A (3) Sheikh Maqbool Ist Additional District and
Hussain Sessions Judge, Srinagar,
Special Judge, Anti Corrup-
tion, Kashmir, Srinagar.
By order of the _Governor
8 Sd/- G.H. Nebvi
Secretary to Government
Law Department:

Mr. Venugopal, learned counsel for the Petitioners bas argued
c that the High Court aftet due consideration of the respective merits
and suitability of all the officers, recommended the names of the
' petitioners for appointment as District Judges and thereafter at the
,request of the Government, the High Court had on 5.10J9SI
forwarded to the Government detailed reasons and the High
'Court had also forwarded the confidential reports of the
D
officers which. were in the possession of the High Court.
Mr. Venugopal points out that without any further reference to
the High Court, the State Government on the basis of the report of
a Cabinet Sub-Co!Jlmittee;,cbose not only ignore the recommendations
made by the High Court but also to appoint respondents nos. 3 to 6
without any kind of consultation with the High Court about the
appointment qftbe said responents. Mr. Venugopal has argued that
the State Government should as a rule accept the recommendations
made by the High Court.· He contends that in any event the State
Govt. canaot appoint any officer as District and Sessions Judge
without consultation with the High Court as consultation with the
High Court is the mandatory requirement of Art. 109 of the
F Constitution of Jammu and-Kashmir which empowers the Governor
to make the appointments in consultation with the High Court. It is
the contention of Mr. Venugopal that this requirement of consul-
tation with the High Court constitutes a salutary safeguard for
preserving the independence of the judiciary. The consultation
envisaged must be full and effective · and the point of view of the
G High Court in the matter of appointment bas to be discussed,
understood and properly appreciated and generally accepted. Mr.
Venugopal bas argued that the responsibility of judicial adminis-
tration in the State basically rests on the High Court and the
High Court for properly discharing its functions, m·ust necessarily
H have proper judicial officers competent to discharge the duties ~o be
entrusted to them. It is the argument of Mr. Venugopal that the
High Court whiCb has complete control over its judicial officers and
M.M. GUPTA v. 1 & K STATE (A.N. Sen, J.) 619

has all relevant' records of the officers and is i~ a proper position to
A
understand and appreciate their performance . and merits, must
necessarily be the best Judge as to the suitability for promotion of
these officers as District Judges.

In this connection Mr. Venugopal has referred 'to a number of B
decisions of this Court. Mr. Venugopal has submitted that .in the
instant case, in th~ matter' of appointment of the. Respondents Nos.
• 3, 4, 5 and 6 there hAs not been any kind of consultation with the
High Court and fhe said respondents have been· appointed without
any reference to. the High Court and even without a formal
intimation to the High Court that the• recommendations made by the c
) High Court were not acceptable and the State . Government was
going. to appoint Respondents Nos: 3 to 6 herein. It is the sub-
mission of Mr. Venugopal. that these appointments must therefore,
be held to .be violative of the Constitution and must, therefore, be
held· to be invalid and illegal and should be quashed.
D
Mr. Kacker, lea':°ned counsel appearing on behalf of the State,
.• has submitted that it is open to the State Government not to accept ·
the recommendations of the High Court and the Governor 111ay
r~fuse to accept the recommenations made by the High Court with
out assigning any reason whatsoever. Mr. Kackar argues that the
E
requirement of the Constitution is that the· appointment of District
Judges by the Governor of the State must be made by him in
consultation with the High Court. It is his argument that the
consultation does not mean either concurrence or recommendation
and no particular form or procedur.e is also necessary to be followed
in the matter of this consultation. He submits that in the instant
case, the State Government bad asked for all the relevant materials
F
which were in the possession of the High Court and the High Court
had forwarded to the State Govern.men! the annual confidential
reports and other materials and also the comments of the High Court .
with regard to each and every candidate on the eligible list. Mr.
Kacker contends that consideration . by the State Government of all G
these materials placed by the. High Court results in and amounts to
consultation within the meaning of the Article. Mr. Kacker submits
that on, a consideration. of all the maierials ·issued by the High
Court, the. State Government decided not to accept the recommen-
dations made by the ·High Court and decided to appoint Resjlt>µdent
Nos .. 3, 4, 5 and 6 as District Judges. It is the submission of Mr.
'
620 SUPREME COURT REPORTS [1983] I $.C.R.

A Kacker that there his· been consultation within the meaning of the
Article and there has been sufficient compliance with the Consti-
iutionai' requirement as to consultation. 1

.. '
In the case of Chandra Mohan v. State of Uttar Pradesh,(') this
Court while considering Art. 233 of the Constitution ollserved after
B setting out Art. 233 (I) at pp. 82-83 :-

~·we are assuming for the purpose of these appeals
that the 'Governor' under Art. 233 shall act on the advice •
of the Ministers. So. the expression 'Governor' used in the
Judgment means Governor acting on the advice of the
Ministers. The Constitutional mandate "is clear. The
0 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
D
or otherwise of a person, belonging either to the 'Judicial
service' or to the Bar, to be appointed as a district judge.
, , a duty is enjoined on the Governor to make the
Therefore,
appointment in consultation with a body which is the
appropriate authority_ to give advice to him. This mandate
E can be disobeyed by the Governor in two W""fs, namely, (i)
by not consulting the High Court at all, and (ii) by
con.suiting the High Court and also other persons. In one
case he directly infringes ihe mandate of the Constitution
and. in the other he indirectly does so far his mind may be
influenced by other persons not entitled to advise him. That
B this constitutional mandate has both a negative and positive
significance is made clear by the other provisions of the
Constitution. .Wherever the Constitution intended to
provide more than one consultant, it has said so : See Arts.
124 (2) and 217 (1). Wherever the Constitution provided for
' consultation of a single ~ody or individual it said so : See
G Art. 222, Art. 124 (2) goes further and makes a distinction
· between persons who shall be consulted and' persons who
may be consulted. These provisions indicate that the duty
to consult is so integrated with the exercise of the power
that the power can be exercised only in consultation with
H the person or persons designated therein. To state it
------,
· (I) [1967) I S.C.R. 77.
(

M.M. GUPTA·•. J & K STATE (A.N. :Sen, J.) 621

differently, if A is empowered to appoint B·in consultation A
with c he will not be exercising the po..:er in the manner
; prescribed if he appoints B in .consultation· with· C and D".

In the case of Chmidramouleshwar Prasad v. Patna. High Court &
Ors.,(') a 5 Judge Bench of this Court held at p. 674-.675 :
B
,''consultation with the High Court under Art. 233 is
.• not an empty formality. Sa far as promotion of Officers to
' the cadre of District.Judge is concer~ed the High Court is
best Iitied to adjudge the claims and merits o( persons to
be 'considered· for promotion. The Governor. cannot c
. discharge the function clinder Art. 233 if h~ makes an
appointment <;>f a persons without ascertaining the High
Court's views in ·regard thereto It was· strenuously
contended on behalf of the State of Bihar that the materials
before the Court amply demonstrate. that there had beeµ
consultation with the High Court before the issue of the D
notificati~n of October 17, 1968 .. It was said that thi High
1

• Court ha\! given the Government its views in the matter; the
· Government was posted with all the facts and .there was
consultation sufficient for· th_e purpose of Art. 233. We
cannot accept this. _co'nstultation or deliberation is not
complete or effective before the parties thereto make their ·· E
. respective Ji,oints of view known to o\her or others and
discuss and examine the relative merits of their views. If.
one party ma]oes a pruposal to th~ oiher ·who has a counter
proposal in his niind whiph is not communicated to the
. proposer the direction to give effect to the counter' propo'sal
without anything more, cannot be said to have been 'issued F
after consultation. In ·our opinio~, the notification of
October 17, 1968 was· not ill' compliance with Art. 233 of
the Constitution. In the absence of consultation the validity ''
•• '. ' _,;
of the not1ficatwn of 17th October, 1968 cannot be
'
sqstained."
,..G
In the case of High Court of Punjab and Haryana etc.v. State of
.Harya.na,(') the view expressed by this Court in Chanderamou/eshwar . ·

(I) (1970) 2 SCR 66. H
(2) [1975] 3 SCR 368.
'·
/
622 SUPRBMB CoURT RBPoRTS [I 983) I S.C.R.
A prasad's case (supra) noted by another Constitution Bench of 5
J udl\es at p. 377 :
' '--<.__
"In Chandramouleshwar Prasad v. Patna High Court &
Ors., [1970] 2 SCR 666 it was said thai under Art. 233 the
B appointment of.'a person to be District Judge rests ;.itb the
Governor but be must make the appointment in consul-
tation with the High Court. The Governor should make up
his mind after there bas been deliberation with the High
Court. The consultation is not complete or effective before
the parties thereto make there respective points of view
c known to tlie other or others. It was said that the Governor
cannot discharge his functions under Article 233 if be
makes the appointment of a person without ascertaining
the points of view of the High Court with regard thereto."

In the case of Chief Justice of Andhra Pradesh and Ors. v.
D V.A. Dixil!flu and Ors. (supra), the same view bas been reiterated in
'the following observation at p. 46 :- .
..
"Article 233 gives tli~ High Court an effecti~e voice in
the appointment of District Judges. Clause (I) of the ·
Article peremptorily requires that 'appointments of persons
to be, and the posting and promotion of, dist_rict Judges"
shall be made by the Governor 'in consultation·· with the
High Court. "Clause (2) of the Article provides for· direct
appointment of District Judges from advocates ·or pleaders
of not less than seven years standing, who are not already
F in the service ofthe State or of the Union. In the matter
of such direct appointments, also, the. Governor can act only
on the recommendation of the High Court. Consultation
with 'the High Court under Art. 233 is not in empty for-
mality. An appointment made in direct or indirect disobe-
dience off his constitutional mandate, would be invalid
G (See Chandra Mohan v. State of U.P.(') and Chandra,
mouleshwar v. Patna High Court(') 'Service' which under ,
clause(!) of Article 233 is the first source of recruitment
of District Judges by promotion, means the 'judicial
services' as defined·in Article 236."
, ' H-
(1) [i967] l .S.C.R. 77.
(2) [1972) 2 SCR 666.

I
M.M. GUPTA v. I & K STATE (A.N. Sen, J.) 623

Jn a recent decision of this Court in Hari Datt Kai nth/a & Anr. A
v. State of Himachal Pradesh & Ors. · (supra) this Court reaffirmed
the views earlier expressed at p. 372-373 :

/ .. Article 233 confers power on the Governor of the
State to appoint persons either by direci recruiment or by B
promotion from amongst those in the judicial service as
District Judges but this power is hedged in with the con-·
dition that ii can be exercised, by the Governor in consulta-
tion with the High.Court. In order to make this consulta-
tion meaningful and purposive the Governor has to consult
c
) High Court in respect of appointment of each person as
Distt. Judge which includes an Additional Distt Judge and
the opinion expressed by the High Court must be given foil
weight, Art. 235 invests control over subordinate courts in-
cluding the officers manning subordinate courts as well as
the ministerial .staff attached to such courts in the High
C9urt. Therefore, when promotion is to be given to the post
D
of District Judge from amongst those belonging to subordi·
nate judicial service, the High Court unquestionably will _
be·competent to decide whether person is fit for promotion
and consistent with its decision to recommend or not to I
recommend ·such. person. The Governor who would be E
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 promoti1>n. 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 sub- F
. ordinate judicial servic~ would ·mutatis mutandis .apply
because the performance 'of a member of the Bar is' better
known to the H igb Court that the Minister or the
Governor. In Candra Mohan <V. State of Uttar Pradesh
and'Ors. (supra) at page 83, a Constitution Bench of the G
Court observed as under :

"The Constitutional mandate is clear. The exercise
of the power of appointment by the Governor is condi- H·
•
'624 llUPRBME .COURT REPORTS [1983] I s.c.11..

A tioned by his consultation with the High Court, that is to
say, he can only appoint 'a pers.on to the post of District
Judge in consultation with the High Court. The object of
consultatfon is apparent. The High Court is expected to
know better than the (}overrior in regard to the suitability
or otherwise of a person, belonging either to the "judicial
B service" or to the Bar, to be appointed as a district ·judge.
Therefore, a duty is enjoined on the Governor to make the
appointmentJn consultation with a body which is:the
appropriate authority to give. advice to him." .

c This view was reaffirmed in Chandramouleshwar Prasad v.
Patna High Court & Ors. (supra) observing :-

"The High Court is the bopy which is intima-
tely famiiar with the efficiency and quality of .officers
who are fit to be promoted as District Judges.
The High Court alone knows their merits as also
demerits."

The facts which we have earlier set out estalish that after the
High Court had forwarded its recommendations and thereafter sent

E I the detailed comments alongwith a copy of the ·resolution as
' requested by the Government. The State Government without any
further intimation to the High Court or without aily kind of discus-
sion with the High Court had ,made the app<?intment pf respondents '
Nos. 3, 4, 5 and 6. ignoring the recommendations made by the High •
'court. The facts further go to indicate that on receipt of the ·
· detailed comments and the resolution a cabinet sub-committee had
considered the matter and' on the recommendations made by the
Cabinet sub-committee, the Governor did not act on the recom- /.
mendations made bv the High Court but made the appointments on
y -
the recommendations of the sub-committee. The recommendations
of the sub-committee were never communicated. to the High Court
G and the State Government had not discussed or sought the views
of the High Court on the findings and recommendations of the
cabinet sub-committee. It is, therefore, abundantly clear from the
facts of.the present case that the counter-proposals sought to be
made by the Government in the matter of appointment were never
H communicated 'lo the High Court and the High Court's views nn
the said proposals of the Government were never asked for and· the

(
•
M.M. GUPTA v. J & K STATE (A.N. Sen, J.) 625
·' .' A
High Court was not at all consulted in the matter of Government's
. ..>'
... proposals to appoint. respondents Nos. 3, 4, 5 and 6 as District ·
Judges. It is well settled that 'consultation·. or deliberation i~ not
complete or effective before the parties thereto make their respective
points of view known to the other or others and discuss and exatnine
· the relative merits of their views. If one'party makes a proposal to B
the other who bas_a counter proposal in his· minds which is not
communicated to the proposer, the direction to give effecct
fo the count~r proposal without anythi11g more, cannot. be said to
.. have been done after cdnsultation. We are, therefore, of the opinion
that in the instant case there has not only .been no effective or
'

) .I
~
complete consultation but, in fact, there has been complete tack of
consultation
)
in the matter of appointment. of Respondents Nos. ·3,
4, 5 and 6., We must, therefore, hold that,the appointment of •he
G

Respondents No•. 3, 4, 5 and 6 in the·absence of consultation ·with
the High Court must be held to be ".iolative of ·the constitutional
requirment and therefore, invalid. The impugned wder appointing .D
respondents Nos. 3, 4, 5'. and 6 has, therefore, ·necessarily to be
.• quashed .

Before concluding we consider. it necessary io emphasize that
' .
independence of the judiciary is one of the basic tenets and a•
fundamental requirement of our Constitution. Various Articles'in E
our Constitution contain the relevant provisions for safeguarding
the independence of the Judiciary. · 'Art. 50 <>f the Constitution
. '\ which lays down that ''the State shall take steps to separate the
judiciary from the executive in the public services of the State""
postulates separation of the judiciary from the exec.utive.

, · Unfortunately, for some· titne pa~t there appears to be an
unl\appy trend of interference in·the matter of judicial appointments
by the executive both at the State and the Central level. The
. unforturiate inteference by the executive results in~ prolongeCl and
unnecessary delay in making the appointments and judicial vacancies ·
continue. for months and in cases for years with the result that tlie G
cause of justice suffers. It is common knowledge that members of
the ,Bar who are considered suitable to be on the Bench are reluc-

. tant to join the Bench and the Office of a Judge has for various
reasons ceased to attract the telented. members of the Bar. The
H
further unfortunate fact is that even in cases when competent
626 SUPRBMB COURT REPORTS (1983] I S.C.R.

A members of the Bar may be. persuaded to accept the office of a
High Court Judge or join the higher judicial service, they ultimately
withdraw their consent in view of the delay in making the appoint-
ments and because of vari<?US restrictions sought to be imposed. As
in the present case we are not really concerned with the appoint-
ment of a Judge of the High Court . or of .a direct appointment
B to the higher judicial service from the Bar, we do not purpose to
dilate on this subject. Article. ~35 of the Constitution vests the
control of judicial administration completely in the High Court
excepting in the 'matter of initial appointment and posting of
district judges and the dismissal, removal or termination of services
of these officers. Even in these matters the requirement of the
c
.(
Constitutfon is that the Governor must act in consultation with the
High Court. If in the matter of appointment, the High Court is
"\
sought fo be ignored and the executive authority chooses to make
the appointment, independence 'of the judiciary will be affected.
Persons who are interested in being appointed District Judges,
whether directly or by promotion, will try to lobby with the execu-
D
tive and curry favour ·with the Government for getting these
appointments and there is every possibility of the independence of
such persons so appointed being undermined with the consequence
that the ca.use of" justice will suffer. We are of the opinion that '
healthy convention and proper norms. should be evolved in the
E matter of these appointments for safeguarding the independence of
the judiciary in conformity with the requirements of the co_nstitu-
tion. We are of the opinion that normally, as a matter of rule,
the recommendations made by the High Court for the appointment
of a District Judge should be accepted by the State Government
and the Governor should act on the same. If in any particular
F case, the State Government for good and weighty reason find it
difffcult to accept the recommendations of the High Court, the
State Covernment should communicate its views to the High Court
and the State Government must have complete and effective
consultation with the High Court in the matter. There can be no
G doubt that if the High Court is convinced that there are good
reasons for the objections on the part of the State Government, the
High Court will undoubtedly reconsider the matter and the recom-
mendations made by the High Conrt. Efficient and proper judicial
administration being the main object of these ~ppointinents, there
H should be no difficulty in arriving at· a consensus as both the High
Coµrt 11nd t!w Stllte Government must necessarily approach the

•
... M.M. GUPTA v. J & K STATE (A.N. Sen, J.) • 627

A
question in a d~tached manner for achieving the true objective of
getting proper District Judges for due administration of justice .

. It appears that in the instant case, the State Government
without any kind of intimation jo the High Court or any discussion
or deliberation with the High Court refused to accept the B
recommendations made by the High Court and proceeded to make
·' the appointments only on the basis cif seniority without any kind of
consultation with the High Court. Seniority, ·undoubtedly, is a
relevant factor in considering promotion. It is, however, to be
.>
borne in mind that in the matter of promoting the Subordinate
Judge to a Districi Judge, seniority is not the only criterion, though·
c
it is a material factor to be considered. The true test in the matter
of promotion is the suitability of the candidate. In considering
the suitability, no doubt, tbe seniority plays a very important role.
A senior . Subordinate Judge may by virtue of the longer
period . of his · service and wider experience be normally
D
considered to be more suitable than any junior Officer. The
greater length of service also. ·gives the High Court an
opportunity of judging his performance and . merit for a
longer period. If, howevever, on a proper consideration of the per-
formance and merit of the officer for this longer period, the High
Court comes to the conclusion that the performance of the officer
E
concerned though for a period longer than any officer junior to him
is not satisfactory and meritorious enough, to entitle him to be
promoted, the High Court cannot be compelled to recommed such
an offiGer only on the ground of his seniority for promotion. It has
to be borne in mind that in such a case the High Court has the

~
• further advantage of judging the suitability of the officer, taking into
consideration his performance over a longer period of time. The
F.
.........._ High Court by virtue of its control over the officers must be con-
. '·,,sidered to be the best judge of the ability and suitability of any
officer as the High Court has in its .possession all relevant materials
r~garding the performance of the officer. The High Court of the
State is primarily entrusted with the judicial admi.nistratio·n in the G
State; and for efficient and due discharge 2f its responsibility, the
High Court needs to have proper officers in proper places. The
High Court must be recognised to be the best judge . of the require-
ments for proper a·ad efficient administration of justice and it
should generally be left to tbe High Court to decide as to which o( u
628 SUPREME COURT REPORTS [1983] I S.C.R.

A the officers will best serve the requirements in furtherance· of the cause
of justice. High Court's main concern is efficient judicial administra-
tion in the State for properly serving the cause of justice. While
making any recommendation, no ,other .extraneous matter weighs
with the High Court. The High Court judges the suitability for
promotion in a detached manner taking into consideration all
B material facts and relevant factors for promoting the cause of justice
and efficient judicial administration in the State. It may be a
problem for the High Court to properly post a person as a District
Judge whom the High Court considers not be suitable for the post
and to entrust him with the responsibility of a District Judge.
c
The appointment of Respondent Nos. 3, 4, 5 and 6 made by
the State Government in violation of the constitutional provisions
arc, therefore, set aside. The said vacancies are directed to be filled
up i.n accordance with law. We, however, wish to mak'e it clear that
quashing the appointments of Respondents Nos. 3, 4, 5 and 6 will
D
not render any orders passed and judgments delivered by them
during the period they have continued to function as District Judge
on the bosis of the invalid appointments made, illegal, invalid and ,
void. To prevent any kind of confusion in the matter of administra-
tion o( justice and in the larger in.terest of ju~tice order passed
E and judgments delivered by the Respondents Nos. 3, 4, S
and 6 have to be . held valid and binding, as if their appoint-
ments so long as the same have not been. set aside, were valid for the
purposes of dealing the matiers disposed of by them. The appeal
filed by the appellants and the writ petition filed by them _in the
High Court of Jammu and Kashmir are accordingly allowed to the
F extent indicated above with costs against the Staie Government. In
view of this order no order.is necessary on the writ petition filed in
this Court.
•
PATHAK, J. I entirely agree with my learned brother Sen in < .-
his observations concerning the incompetence of the certificate
G granted by the High Court and the maintainability of the writ peti-
tion and in the order granting special leave to appeal to the
appellants.
\

ff On the merits I agree with my learned brother that the promo-
tions of respondents Nos. 3, 4, 5 and 6 as District and Sessions
. M.M. GUPTA v. J & K STATE (A.N. Sen, J.) 629
'
Judges by the State Government is contrary to law· inasmuch as A
'
there was DO consultation between the State Government and the
High Court before the promotions ·were effected. This contention
of the appellants must succeed. I do not propose to express any
opinion · on the other contention of the appellants that the
promotions fall outside the scope of Article 233 of the
Constitution. B

P.B.R. Appeal allowed.
)'

• ,

•