M.M. GUPTA AND ORS. ETC. ETC. v. STATE OF JAMMU & KASHMIR & ORS (2)

Citation: [1983] 1 S.C.R. 593

Court: Supreme Court of India

Bench: P.N. BHAGWATI, R.S. PATHAK, AMARENDRA NATH SEN

Case summary

109 of the Constitution of Jammu & Kashmir, taises a substantial question of law of general public importance and the case was a fit one in ·which a certificate of fitpess should be ,granted, The High Court held that the appointment of Rajakhowa as District and.

Judgment text

593 A· M. M. GUPTA AND ORS. ETC, ETC, v. STATE OF JAMMU & KASHMIR & ORS. October 15, 1982. [P. N. BHAGWATI, R. S. PATHAK AND AMARENDRA NATH SEN, JJ. ] ) Constitution ofJammu & Kashmir-:-Article 109 (corresPonding to Article 233 ofthe 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 the earlier decision should be reconsidered in the interest of judicial administration and for safeguarding the independence of the judiciary. It ishis 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 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· 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 Court, this was a case of 'promotion' of a person belonging to the judicial service of the . State and the High Court was the authority to make the 'promotion' under Article 235. This view of the High Court was negatived by this Court and this Court. llllowed . the appeal and held at pp. 931-33: "Chapter VI of Part VI of the Constitution deals with 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 1 West Bengal v. Nripendra Nath Bagchi( ). . This . service was provided for separately to make the office of a District Judge completely free of executive control. · The Chapter contains six articles (233 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 of D! stri e appointment of Rajkhowa as Additional District Judge by the Governor was a promotion and was made under Art. 233, it could · not be made . under Art. 235 which deals with posts subordinate to a 'District Judge including an additional District Judge and an additional Sessions Judge. The High Court was in error in holding'that the appointment of .

Rajkhowa to the position of an additional District Judge was invalid because the order wa. s· made by the Governor instead of the High Court. ' The appintment or promotion was perfectly valid. and according to the· - ' constitution. " ' ' 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, 608 SUPB. BMB COURT RtiPORTs · (1983] l s. c. 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 control. In the case. of the District Judges, appointments •of persons to be and posting and promotion are to be • made by the Governor but the control over the District Judge is of the High Court.

" The view that on proper construction of Article 233 and 235 the . _... appropriate authority, to make the appointment of District Judges is ) the Governor and not the High Court has· also been reiterated by \ ·this Court iil later decision of this Court. , 1n a recent decision of this Court in the case of Chief Justice of 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, 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 ' Fdirect appointments, also, the Governor can act only on the recommen Sir, 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 account of the proposed retirement of M/s. Mohammad f ·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 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; (2) Shri O. P. Sharma, at present Sub Judge (C. J. M. ) Jammu.

(3) Shri Bashir-ud·Din, ·at present, Sub-Judge, Special Judicial Mobile Magistrate, Traffic, Kashmir. (4) Shri S. K. Gupta, at present; Sub-Judge (Deputy Registrar, Jammu Wing), Jammu. The four therefore may be promoted as officiating District and Sessions Judges and that tl\~ir ipostings tna:'{ i,e ordered as under:- \ • 612 SUPRBMB COURT RBPORTS (1983) I S. C. B~ (I) Shri M. M. Gupta, Second Additional District & Sessions Judge, Srinagar (Single Member Tribunal for , ' Anti-Corruption Cases, Kashmir) (2) Shri O. P. Sharma, District & Sessions Judge, Rajouri; - . , (3) Shri Bashir-ud-Din, Second Additional District & Sessions Judge, Jammu (Single Member. Tribunal for ' Anti-Corruption cases, Jammu Province) ; ·. . (4) Shri S. K. Gupta, Isl Additional District and Sessions Judge, Srinagar (Special Judge Anti Corruption, Kashmir)· \ . I am, therefore, to request you kindly to obtain the sanction of the competent authority and conv~y the -same to me as early as possible, Yours faithft.

lly .. Sd/- (S. M. Rizvi) Registrar 31. 8. 1981 In reply to the said letter of the_ Registrar, the Law Secretary addressed as follows :- '-.! ,. ,,,. -.... No. LD (A) 81/143 Sept. 15, 1981, . . My dear Rizvi; Please refer to 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 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 ' \. With regards, Yours Sd/, (G,H. Nehvi) Shri S. M. Rizvi. Registrar, . High Court of J & K, Srinagar" . · It appears that on 24. 9. 1981, the Under Secretary to the Government, Law Department, had sent a reminder to the' Registrar of the High Court drawing his attention to the earlier letter dated 15. 9. 1981. On 5. 10. 81 the.

High Court ~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 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.

LIST OF ITEMS DISCUSSED IN JUDGES MEETING 'HELD ON 29. 8. 1981 PRESENT: . \ 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 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 suitabiof Additional District Court at lity of all the officers in 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 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. 3. Shri Bashir-Ud-Din, Sub-Judge (Special Mobile Magistrate Traffic), Srinagar. · 4. Shri Sudesh Kumar Gupta, Sub-Judge (Dep'! ty ?

Registrar, Jammu). We direct that recommendation shall be made to. the Governor ·accordingly. We further direct that their place of postings shall be as· follows :- • 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 ) Sd/- Hon'ble Justice Dr. A. S. Anand \ Sd/- Hon'ble Mr. Justice I. K. Kotwal Sd1- Hon'ble Mr. Justice G. M. Mir It appears that the meeting was attended by all the Judges of the High Court. On. the 16th Novem. ber, 1981, the Secretary to the Government, Law· Department, addressed the following letter to the Registrar of the High Court :- · No.

LD (A) 81/143 Dated : 16. 11. 1981 The Registrar, """"'~ High Court of I & K, .. __. _ ·Jammu. . Subject :-Appoi! 1tment of District and Sessions Judges. Sir, 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. 2. Shri Pavitar Singh. 616 SUPRBMB COURT REPORTS [1983] 1 s. c. tt 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 appointment 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. . • 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 Respondents Nos. 3, 4; 5 and 6 as Djstrict and Sessions Judges. ' ' 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 held on 24. 11. 1981 Preamble Resolved I.

Law Secretary's letter (1) Considered. The pos~ing· ... No. LD (A) 81/143 dated ·of the Officers is pro· 16. 1 I. 1981 regarding posed as under :- • appointment of s)Shri , (i) Shri Pavitar Singh-Dis- 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. 8 Judge. : ... Submission of (iii) Sheikh Maqbool Hussain 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 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 concerned. ;' Thereafter, 011 26. 11. 1981, the following order was passed by the State ; Government :- "Government of Jammu and Kashmir Civil Secretariat·: Law Department ' I .

Sub :-Officiating appointment of District & Sessions Judges. . ' ' 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 :- (I) Shri Pavitar Singh ,District and Sessions Judge, " Leh-Kargil (2) Shri Harchran Si~gh District and Sessions Judge, Bahri Rajouri 618 SUPRBMB COURT REPORTS (1983] 1 s. c. a. (3) Sheikh Maqbool Ist Additional District and Hussain Sessions Judge, Srinagar, Special Judge, Anti Corruption, 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 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 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 Constitution of Jammu and-Kashmir which empowers the Governor to make the appointments in consultation with the High Court. It is the contention of Mr. Venugopal that this requirement of consultation with the High Court constitutes a salutary safeguard for preserving the independence of the judiciary. The consultation envisaged must be full and effective ·and the point of view of the High Court in the matter of appointment bas to be discussed, understood and properly appreciated and generally accepted. Mr.

Venugopal bas argued that the responsibility of judicial administration in the State basically rests on the High Court and the High Court for properly discharing its functions, m·ust necessarily 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 understand and appreciate their performance . and merits, must necessarily be the best Judge as to the suitability for promotion of these officers as District Judges. In this connection Mr. Venugopal has referred 'to a number of decisions of this Court. Mr. Venugopal has submitted that . in the instant case, in 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 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. 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 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 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 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 recommendations 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. ' Kacker that there his· been consultation within the meaning of the Article and there has been sufficient compliance with the Consti- 1 iutionai' requirement as to consultation. .. ' In the case of Chandra Mohan v. State of Uttar Pradesh,(') this Court while considering Art. 233 of the Constitution ollserved after 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 or otherwise of a person, belonging either to the 'Judicial service' or to the Bar, to be appointed as a district judge. Therefore, a duty is enjoined on the Governor to make the , , appointment in consultation with a body which is the appropriate authority_ to give advice to him. This mandate 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 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 Art. 222, Art. 124 (2) goes further and makes a distinction · between persons who shall be consulted and' persons who may be consulted. These provisions indicate that the duty to consult is so integrated with the exercise of the power that the power can be exercised only in consultation with the person or persons designated therein. To state it ------, · (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 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 : ,''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 . 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 1 notificati~n of October 17, 1968..

It was said that thi High 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 ·· . 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 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. (2) [1975] 3 SCR 368. '· / 622 SUPRBMB CoURT RBPoRTS [I 983) I S. C. R. prasad's case (supra) noted by another Constitution Bench of 5 J udl\es at p. 377 : ' '-- 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- . ordinate judicial servic~ would ·mutatis mutandis . apply because the performance 'of a member of the Bar is' better known to the Higb Court that the Minister or the Governor. In Candra Mohan ' 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 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 ' complete consultation but, in fact, there has been complete tack of ~ ) consultation in the matter of appointment of Respondents Nos. ·3, . I ) . 4, 5 and 6. , We must, therefore, hold that,the appointment of •he 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 . 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 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 cause of justice suffers.

It is common knowledge that members of the ,Bar who are considered suitable to be on the Bench are reluctant to join the Bench and the Office of a Judge has for various .. reasons ceased to attract the telented. members of the Bar. The further unfortunate fact is that even in cases when competent 626 SUPRBMB COURT REPORTS (1983] I S. C. R. members of the Bar may be. persuaded to accept the office of a High Court Judge or join the higher judicial service, they ultimately withdraw their consent in view of the delay in making the appointments and because of vari borne in mind that in the matter of promoting the Subordinate Judge to a Districi Judge, seniority is not the only criterion, though· it is a material factor to be considered. The true test in the matter of promotion is the suitability of the candidate. In considering the suitability, no doubt, 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 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 performance and merit of the officer for this longer period, the High Court comes to the conclusion that the performance of the officer concerned though for a period longer than any officer junior to him is not satisfactory and meritorious enough, to entitle him to be promoted, the High Court cannot be compelled to 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 F. • consideration his performance over a longer period of time. The ~ .......... _ 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 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 requirements 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 the officers will best serve the requirements in furtherance· of the cause of justice. High Court's main concern is efficient judicial administration in the State for properly serving the cause of justice. While making any recommendation, no ,other . extraneous matter weighs with the High Court.

The High Court judges the suitability for promotion in a detached manner taking into consideration all material facts and relevant factors for promoting the cause of justice and efficient judicial administration in the State. It may be a problem for the High Court to properly post a person as a District Judge whom the High Court considers not be suitable for the post and to entrust him with the responsibility of a District Judge. The appointment of Respondent Nos. 3, 4, 5 and 6 made by the State Government in violation of the constitutional provisions 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 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 administration o( justice and in the larger in. terest of ju~tice order passed and judgments delivered by the Respondents Nos. 3, 4, S and 6 have to be . held valid and binding, as if their appointments so long as the same have not been. set aside, were valid for the purposes of dealing the 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 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 granted by the High Court and the maintainability of the writ petition and in the order granting special leave to appeal to the appellants.

\ ff On the merits I agree with my learned brother that the promotions of respondents Nos. 3, 4, 5 and 6 as District and Sessions ' 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 B Constitution. P. B. R. Appeal allowed. )' • , • •