M.M. GUPTA AND ORS. ETC. ETC. versus STATE OF JAMMU & KASHMIR & ORS.

Citation: [1983] 1 S.C.R. 593 · Decided: 15-10-1982 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

) 
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 District-
Judge"s-High Court's recommendations rejected by the State Government-Promo. 
ttOns and appointments made on recommendations of Cabinet Su~Committee
Va/ldlty of. 
Consu/tation-·What amounts· to-Counter-proposals of State Government 
without communictiting them to the High Court-Whether could be treated as 
,cousu/tatiOn. 
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 separa-
tion of the judiciary froiµ the executive. 
' For som.e time past ther~ appears to be a tr"end of interference by the 
executive, both at•the State and Central levels, in judicial appointments. This 
has resulted in-prolonged and unD.ecessary delay in making the appointments to 
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.. 
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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 
appoin
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