LexHARI DATT KAINTHLA & ANR. versus STATE OF HIMACHAL PRADESH & ORS.
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A B c D E F G 364 HAR! DATT KAINTHLA & ANR. v. STATE OF IDMACHAL PRADESH & ORS. April 9, 1980 [D. A. DESAI AND E. S. VENKATARAMIAH, JJ.J Promotion claim for-Appellants admittedly juniors in the gradation list of Subordinate Judges in the State of Himachal Pradesh to Respondents 3, 4 and 5- Whether apj,ellants could question the legality and validity of the promotion of respondents 3, 4 and 5 to the cadre of District/ Additional District & Sessions Judges and also the promotion of respondents 6 & 7 to the selection grade post subordinate Judges in accordance lvith Chapter VI of Part VT of Constitution- Constitution of India Article 16, whether offended-Constitution of India Articles 233, 235 and 236. Necessary parties to the proceedings-Whether Govern111§nt and H1'gh Court, should necessarily appear before the High Court, 1vhen they are made parties challenging their action. Himachal Pradesh was a Union Territory till January 25, 1971, when at the apex of the Judicial hierarchy there was a court of Judicial Commissioner. On the introduction of the Punjab Reorganization Act, 1966 effective from November 1, 1966, certain. territories were transferred and added to the Union Territory of Himacbal Pradesh simultaneously extending the jurisdiction of the· Court of Judicial Commissioner of Himachal Pradesh to the transfeITed teni- tories. Consequently provision was made for allocation of persons belonging to different services in pre-reorganized State of Punjab (Respondent 4 to 7 being such officers) to Union Tenitory of Himachal Pradesh. On May 2, 1967, the judiciary of Unioru Territory of Himachal Pradesh was placed under the jurisdiction of Delhi J!igh C'ourt which continued till January 25, 1971, when state-hocxl was conferred on the Union Territory and a full fledged High Court of Himachal Pradesh was set up. Promotional avenues in Himacha·l Pradesh Subordinate Judicial servicei moved vertically from the grass root entry as subordinate judge promoted as senior sub-Judge-cum-Assistant Sessions Judge. and when the further prontotional avenue is DSJ /ADSJ. They \'Vere initia·lly governed by the Himachal Pradesh (Courts) Order, 1948 issued by the Union Government in exercise of the po·wer cenferred· by sections 3 and 4 of the Extra Provincia·l Jurisdiction Act, 1947. This ordet remained in force till it was replaced by the1 Himachnl Pradesh Subordinate Judicial Service Rules, 1962. Rule 16(2) of the 1948 Order provided for the appointment of District and Sessions Judges,, The Chief Commissioner had power to appoint as many parsons as he considered necessary to be District Judges. In the 1962 Rules, there was no change in this regard. Effective from January 25, 1971 when statehood was conferred on the Union Territory of Himachal Pradesh, the Chief Commisisoner was replaced by the Governor and the Judicial Commissioner by High Court. B Both the appellants were working as Senior Sub-Judge-cum-Assistant Sessions Judge and they questioned the validity and legality of promotion of respondents 3, 4 and 5 given on May 18, 1971 as DSJ/ADSJ on the ground that the- • \ • I HAR! DATT V. HIMACHAL PRADESH 365 post of DSJ I ADSJ is a selection post and the criterion for selection must be merit alone, seniority being treated as thoroughly irreilevant and therefore, all those who were within the zone of eligibility should have been considered before selecting respondents 3, 4 and 5 and this having not been done the pro- motion having been purely as the basis of seniority, their promotion: is inv&lid . Simultaneously they contended that same. criterion would 1nutatis-muta11di~ apply while giving promotion to senior sub-Judge cum Assistant Sessions Judge tD selection grade post and that having not been done and the promotion having been given only on the basis of seniority, the, same is invalid, as per the rnemorandum dated June 15, 1957 issued by the Himachal Administration. The High Court through its Registrar did not appear and participate in the proceedings, though made a party. Noc did the Bench hearing the rna<ter call for the relevant files from the office' of the High Court though a prayer was made to that effect in the writ petition. The State of Himachal Pradesh, Respondent No. 1 contended that appointment to the post of D.S.J. was governed by Art. 233 of the Constitution under v.1hich appointments were to be made by the Governor in consultation with the
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