M M GUPTA STATE OF JAMMU AND KASHMIR Vs. STATE OF JAMMU AND KASHMIR:M M GUPTA:STATE OF JAMMU AND KASHMIR
LAWS(SC)-1982-10-13
SUPREME COURT OF INDIA (FROM: JAMMU & KASHMIR)
Decided on October 15,1982

STATE OF JAMMU AND KASHMIR,M.M.GUPTA Appellant
VERSUS
STATE OF JAMMU AND KASHMIR,M.M.GUPTA Respondents

JUDGEMENT

PATHAK - (1.) 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.
(2.) ON the merits I agree with my learned broom 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 Art. 233 of the Constitution. AMARENDRA NATH SEN Four petitioners belonging to the cadre of Subordinate Judicial Service in the State of Jammu and Kashmir and whose names were recommended by the High Court for appointment as District Judges, filed a writ petition in the High Court of Jammu and Kashmir (Writ Petn. No. 668 of 1982) challenging the validity of appointment as District Judges of the respondents Nos. 3, 4, 5, and 6 made by the Governor of the State. In the said writ petition the petitioners had made the State through the Chief Secretary, respondent No. 1, the High Court of Jammu and Kashmir through the Registrar, the respondent No. 2 and the four persons who were appointed as District Judges by the Governor, as respondents 3, 4, 5 and 6. A learned single Judge of the High Court directed notice to issue to respondents Nos. 1 to 2 in the first instance to show cause as to why the petition should not be admitted and the learned single Judge further directed that the matter should be listed before a larger Bench for admission. The learned single Judge also granted stay of the operation of the order appointing the respondents Nos. 3 to 6 pending disposal of the admission matter. The matter came up before a Division 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 bad already taken a decision which forms the basis of the claim of the petitioners in writ petition. On 27-2-1982 after the arguments had been heard at length, the matter was adjourned to 8-3-1982 for further arguments. It appears that, on 8-3-1982 when the matter came up for further arguments learned counsel for the respondents submitted that in fairness and on the grounds of judicial propriety, the High Court might not hear the writ petition. It appears that it was submitted by the learned counsel for the petitioners that they would have no objection to that course being adopted provided a certificate of fitness to file an appeal in the Supreme Court was granted in their favour. It appears that the learned counsel for the respondents did, not have any objection to the grant of this prayer of the petitioners. In view of the agreement between the learned counsel for the parties, the High Court declined to hear the petition an the ground of judicial propriety and vacated the order for stay passed on 27-11-1981; and the High Court granted a certificate of fitness to the petitioners to file an appeal in the Supreme Court, holding that the point involved in the writ petition relating to the interpretation of Art. 109 of the Constitution of Jammu and Kashmir, raises a substantial question of law of general public importance and the case was a fit one in which a certificate of fitness should be granted. Civil Appeal No. 1349 of 1982 is the appeal filed by the appellants on the strength of the certificate granted by the High Court. Against the judgment and order of the High Court dated 8-3-1992 granting certificate of fitness for filing an appeal in this Court after declining to bear the writ petition and after vacating the stay, the State obtained Special Leave from this Court to prefer an appeal and Civil Appeal No. 1997 of 1982 has been filed by the State with leave of this Court against the judgment and order of the High Court dated 8-3-1982.
(3.) THE writ petitioners in the High Court who are also the appellants in Civil Appeal No. 1349 of 1982 in this Court by certificate 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 thereof, 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 and Kashmir. THE writ petition filed by the petitioners bears Writ Petitions 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.;


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