NO. 717-LD (A) of 1981 dated 26.11.1981
27. 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 available vacancies with the posting as shown against each in consultation with the Hon'ble High Court :
(1) Shri Pavitar Singh - District and Sessions Judge, Leh-Kargil (2) Shri Harchran Singh - District and Sessions Judge, Bahri Rajouri (3) Sheikh Maqbool - 1st Additional District and Hussain Sessions Judge, Srinagar, Special Judge, Anti Corruption, Kashmir, Srinagar. By order of the Governor
Sd/- G.H. Nehvi
Secretary to Government
28. Mr. Venugopal, learned Counsel for the Petitioners has argued that the High Court after 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 5.10.1981 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-Committee, chose 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 of the 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. cannot 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 Article 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 has to be discussed, understood and properly appreciated and generally accepted. Mr. Venugopal has argued that the responsibility of judicial administration in the State basically rests on the High Court and the High Court for properly discharging its functions, must necessarily have proper judicial officers competent to discharge the duties to be entrusted to them. It is the argument of Mr. Venugopal that the High Court which has complete control over its judicial officers and has all relevant records of the officers and is in 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.
29. 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 the 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 the 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 submission 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.
30. Mr. Kacker, learned 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 may refuse to accept the recommendations made by the High Court with put 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 procedure is also necessary to be followed in the matter of this consultation. He submits that in the instant case, the State Government had asked for all the relevant materials which were in the possession of the High Court and the High Court had forwarded to the State Government 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 materials issued by the High Court, the State Government decided not to accept the recommendations made by the High Court and decided to appoint Respondent Nos. 3, 4, 5 and 6 as District Judges. It is the submission of Mr. Kacker that there has been consultation within the meaning of the article and there has been sufficient compliance with the Constitutional requirement as to consultation.
31. In the case of Chandra Mohan v. State of Uttar Pradesh : (1967)ILLJ412SC this Court while considering Article 233 of the Constitution observed after setting out Article 233(1) at pp. 82-83 :
We are assuming for the purpose of these appeals that the 'Governor' under Article 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 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 ways, namely, (i) by not consulting the High Court at all, and (ii) by consulting the High Court and also other persons. In one case he directly infringes the 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 Articles 124(2) and 217(1). Wherever the Constitution provided for consultation of a single body or individual it said so : See Article 222, Article 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 differently, if A is empowered to appoint B in consultation with C he will not be exercising the power in the manner prescribed if he appoints B in consultation with C and D.
In the case of Chandramouleshwar Prasad v. Patna High Court and Ors.  2 SCR 66 Judge Bench of this Court held at p. 674-675 :
consultation with the High Court under Article 233 is not an empty formality. So far as promotion of Officers to the cadre of District Judge is concerned the High Court is best fitted to adjudge the claims and merits of persons to be considered for promotion. The Governor cannot discharge the function under Article 233 if he makes an appointment of 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 been; consultation with the High Court before the issue of the notification of October 17, 1968. It was said that the High Court had given the Government its views in the matter; the Government was posted with all the facts and there was consultation sufficient for the purpose of Article 233. We cannot accept this. Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to other or others and discuss and examine the relative merits of 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 proposer the direction to give effect to the counter proposal without anything more, cannot be said to have been issued after consultation. In our opinion, the notification of October 17, 1968 was not in compliance with Article 233 of the Constitution. In the absence of consultation the validity of the notification of 17th October, 1968 cannot be sustained.
32. In the case of High Court of Punjab and Haryana etc. v. State of Haryana  3 SCR 368 the view expressed by this Court in Chanderamouleshwar prasad's case (supra) noted by another Constitution Bench of 5 Judges at p. 377 :
In Chandramouteshwar Prasad v. Patna High Court and Ors. : 2SCR666 it was said that under Article 233 the appointment of a person to be District Judge rests with the Governor but he must make the appointment in consultation with the High Court. The Governor should make up his mind after there has been deliberation with the High Court. The consultation is not complete or effective before the parties thereto make there respective points of view known to the other or others. It was said that the Governor cannot discharge his functions under Article 233 if he makes the appointment of a person without ascertaining the points of view of the High Court with regard thereto.
33. In the case of Chief Justice of Andhra Pradesh and Ors. v. V.A. Dixitulu and Ors. (supra), the same view has been reiterated in the following observation at p. 46 :
Article 233 gives the High Court an effective voice in the appointment of District Judges. Clause (1) 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 provides for direct appointment of District Judges from advocates or pleaders of not less than seven years standing, who are not already in the service of the 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 Article 233 is not an empty formality. An appointment made in direct or indirect disobedience off his constitutional mandate, would be invalid (See Chandra Mohan v. State of U.P. : (1967)ILLJ412SC and Chandramouleshwar v. Patna High Court : 1972CriLJ298 'Service' which under Clause (1)of Article 233 is the first source of recruitment of District Judges by promotion, means the 'judicial services' as denned in Article 236.
34. In a recent decision of this Court in Hari Datt Kainthla & Anr. 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 direct recruitment or by promotion from amongst those in the judicial service as District Judges but this power is hedged in with the condition that it can be exercised by the Governor in consultation with the High Court. In order to make this consultation meaningful and purposive the Governor has to consult 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 full weight. Article 235 invests control over subordinate courts including the officers manning subordinate courts as well as the ministerial staff attached to such courts in the High Court. Therefore, when promotion is to be given to the post of District Judge from amongst those belonging to subordinate 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 recommend such person. The Governor who would be acting on the advice of the Minister would hardly be in a position to have intimate knowledge about the quality and qualification of such person for promotion. Similarly when a person is to be directly recruited as District Judge from the Bar the reasons for attaching full weight to the opinion of the High Court for its recommendation in case of subordinate judicial service would mutatis mutandis apply because the performance of a member of the Bar is better known to the High Court 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 Court observed as under :
The Constitutional mandate is clear. The exercise of the power of appointment by the Governor is conditioned by bis 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.
35. This view was reaffirmed in Chandramouleshwar Prasad v. Patna High Court & Ors. (supra) observing :
The High Court is the body which is intimately familiar with the efficiency and quality of officers who are fit to be promoted as District Judges. The High Court alone knows their merits as also demerits.
36. The facts which we have earlier set out establish that after the High Court had forwarded its recommendations and thereafter sent 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 any kind of discussion with the High Court had made the appointment of 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 recommendations made by the High Court but made the appointments on the recommendations of the subcommittee. The recommendations of the sub-committee were never communicated to the High Court 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 communicated to the High Court and the High Court's views on the said proposals of the Government were never asked for and the 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 is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a counter proposal in his minds which is not communicated to the proposer, the direction to give effect to the counter proposal without anything more, cannot be said to have been done after consultation. 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 lack of consultation in the matter of appointment of Respondents Nos. 3, 4, 5 and 6. We must, therefore, hold that the appointment of the Respondents Nos. 3, 4, 5 and 6 in the absence of consultation with the High Court must be held to be violative of the constitutional requirement and therefore, invalid. The impugned order appointing respondents Nos. 3, 4, 5 and 6 has, therefore, necessarily to be quashed.
37. Before concluding we consider it necessary to 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. Article 50 of 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 executive.
38. Unfortunately, for some time past there appears to be an unhappy trend of interference in the matter of judicial appointments by the executive both at the State and the Central level. The unfortunate interference by the executive results in prolonged and unnecessary delay in making the appointments and judicial vacancies continue for months and in cases for years with the result that the 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 talented members of the Bar. The further unfortunate fact is that even in cases when competent 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 various restrictions sought to be imposed. As in the present case we are not really concerned with the appointment of a Judge of the High Court or of a direct appointment to the higher judicial service from the Bar, we do not purpose to dilate on this subject. Article 235 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 Constitution is that the Governor must act in consultation with the High Court. If in the matter of appointment, the High Court is sought to 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 executive 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 cause of justice will suffer. We are of the opinion that healthy convention and proper norms should be evolved in the matter of these appointments for safeguarding the independence of the judiciary in conformity with the requirements of the constitution. 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 case, the State Government for good and weighty reason find it difficult to accept the recommendations of the High Court, the State Government 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 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 recommendations made by the High Court. Efficient and proper judicial administration being the main object of these appointments, there should be no difficulty in arriving at a consensus as both the High Court and the State Government must necessarily approach the question in a detached manner for achieving the true objective of getting proper District Judges for due administration of justice.
39. It appears that in the instant case, the State Government without any kind of intimation to the High Court or any discussion or deliberation with the High Court refused to accept the recommendations made by the High Court and proceeded to make the appointments only on the basis of 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 District 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, the 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 recommendation such an officer 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 High Court by virtue of its control over the officers must be considered to be the best judge of the ability and suitability of any officer as the High Court has in its possession all relevant materials regarding the performance of the officer. The High Court of the State is primarily entrusted with the judicial administration in the State; and for efficient and due discharge of 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 and efficient administration of justice and it should generally be left to the High Court to decide as to which of 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.
40. The appointment of Respondent Nos. 3, 4, 5 and 6 made by the State Government in violation of the constitutional provisions are, therefore, set aside. The said vacancies are directed to be filled up in accordance with law. We, however, wish to make 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 basis of the invalid appointments made, illegal, invalid and void. To prevent any kind of confusion in the matter of administration of justice and in the larger interest of justice order passed and Judgments delivered by the Respondents Nos. 3, 4, 5 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 matters 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 State Government. In view of this order no order is necessary on the writ petition filed in this Court.
R.S. Pathak, J.
41. 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.
42. 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 there was no 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.