# A· M.M. GUPTA AND ORS. ETC, ETC v. STATE OF JAMMU & KASHMIR & ORS - **Citation:** [1983] 1 S.C.R. 593 - **Court:** Supreme Court of India - **Decided:** 1982-10-15 - **Case number:** Civil Appeal No. 1349 of 1982 - **Bench:** P.N. Bhagwati, R.S. Pathak, Amarendra Nath Sen - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-m-m-gupta-and-ors-etc-etc-v-state-of-jammu-kashmir-ors-8585 - **Pages:** 37 ## Headnote Constitution of Jammu & Kashmir-:-Article 109 ( corresPonding to Article 233 of the <;onstitutton of lndia)-Scope" of-Promot~on Of subordinate fudges as DistrictJudge"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. 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 of fitness 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 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 frequirement of.our ConStitution. Various articles of the Constitution provide or safeguarding the independence of the judiciary. Article 50 provides separation 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 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 imposed.. / B c D E F G H A B c D E F G H ) ' 594 SUPREME COURT REPORTS [ 1983) I S.C.R. 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 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 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. 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 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 th ## Text _Characters 0–39,785 of 78,851. This is a partial read: ask again with offset=39785 for what follows._ ) 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 of Jammu & Kashmir-:-Article 109 ( corresPonding to Article 233 of the <;onstitutton of lndia)-Scope" of-Promot~on Of subordinate fudges as DistrictJudge"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. 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 of fitness 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 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 frequirement of.our ConStitution. Various articles of the Constitution provide or safeguarding the independence of the judiciary. Article 50 provides separation 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 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 imposed.. / B c D E F G H A B c D E F G H ) ' 594 SUPREME COURT REPORTS [ 1983) I S.C.R. 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 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 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. 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 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 recommended by the High Court. While giving postings to them the High -~ . Court recorded a minute that their postings "should not be deemed as consultation 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 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 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 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. 1\ I ,.../ •, .\ 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 /~ . ' ) 1 in their writ petition in High Court~ _ -- 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 promotio~ of subord_!9ate jtidges is vested in the High Court and that therefore appoiotmeilts -r;Dade by the Government without consulting the High Court 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 ! _ -~~High Court. This is settled by a long ~line of decisions of this Cour_t. [609 E-F] c D 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 - / A G 0 E F G H 596 SUPREME COURT REPORTS (1983] 1 S.C.R. their views. If one party makes a proposal to the other who has a counterproposal 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 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 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 • ·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' 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 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 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] J - · ,_ ) :" ! . , M.M: GUPTA v. J & K STATE (A.N. Sen, J.) .• 597 [Pathak, J. agreed with the ;observations of the majority in concurring 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. 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 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 Jammu & Kas.hmir High Court in W.P. No. 668 of 1981. AND .. 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 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 A B c D E Krishnamanan, for the appeallants in C.A. 1349/82 & for the PetiB ~ 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. 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 cadre of Sub;rdinaie Judiciaf Service in the State 'or Jammu & Kashmir and whose names were recommended by the High Court G H A B c D ' E F. G H 598 ' SUPREME C<)URT REPORTS (1983] I s.c.R. ' 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 through the Registrar, the Respondent No. 2 and the four persons who were appointed District Judges by the Governor, as Respondents 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 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 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 arguments learned Counsel for the· Respondents submitted that in . .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 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 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 inlerpretation of Art. 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, j_ . , ·- _,) . ) ' M.M. GUPTA v. J & K STATE ( il.N. ·sen, J.) 599 ~Civil Appeal No. 1349 of 1982 is the Appeal filed by the Appellants 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 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- . 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 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 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 • 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 .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 Court to hear the Writ Petition on the ground of judicial proA B 0 D E F G R \ 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. 8 .C D JjJ. F· G H 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 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, 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 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 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 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 · 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, the High Court which found it embarrassing to deal with the writ petition particularly in view ?f the objection raised on behalf of the ' ,,,/"-- • i • M.M. GUPTA v. J & K STATB (A.N. Sen, J.) 601 \ State on the ground ·or judicial propriety, granted certificate with the 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 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 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 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. The other prelim.inary objection is with regard to the maintainability of the Writ Petition filed by the Petitioners under ·Art. 32 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, 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 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 maintainability of the writ petiti.on involving the very same questions becomes purely aeademic, The preliminary. objections are accordingly disposed of. We now proceed to deal with the case on its ·.merits. A B., c D , E F G H 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 writpetitfon filed in the High Court and also in this Court. B c D E F G H Mr. Venugopal, learned counsel appearing on behalf of the appellants who filed the writ petition in the High Court and whohave 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 consideration of Art. 109 and Art. I IJ of the Constitution of J~mmu and Kashmir, the Governor does not have any power to appoint District Judges from ·the cadre of Subordinate Judges of the State and this power is vested in the Higli Court. (2) The secopd ground of attack is -that even if it be held 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 appointments must be held to be in breach of the constitutional provisions 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 :- "109. Appointment of district Judges. (I) Appointment 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 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." . "111. Co_ntrol over subordinate courts-The control over. district courts and courts subordinate ther,eto includ- !!. f ' \ " • I M.M.'GUPTA v. J & K STATE (A.N .. Sen, J,) 603 " · 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 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 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 of Jam mu & Kashmir have not come up for c consideration in any parti11ular decision, the ·corresponding two articles )n the Constitution of India have 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 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 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 :- "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<) as takh)g · . away from any such person any right of appeal which he may have under the law regulating the conditions of 'his .A B c D E F G H A B c D ·E F 604 SUPRBMB COURT RePORTS (1983) l s.C.R. 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 & 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 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 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 that Art. 233 does not deal with the case of promotion of subordinate 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 Constitution of India which corresponds to Art. 111 of the Constitution 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. .{' • . ' .~· ;• > • I M.M. GUPTA v. J & K STATE (A.N,,Sen, J.) 605 The writ was issued by the High Court at the instance of Respondents 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 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 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 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 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<(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 District' Judge and other Civil Judicial posts 'inferior to the District Judge, and !he expressi?n 'District Judge' 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 (I) [1966] I S.C.R. 771. • A B c D E F G H A B c D H 606 ' SUPREME COU:RT RRPOTS [1983) I s.c.R. 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 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 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 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 theHigh 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 · 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 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. / 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 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 '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 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, A B c D E F G H A B c D E FG H 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 direct appointments, also, the Governor can act only on the recommen