GOVIND RAM SHARMA Vs. HIGH COURT OF H.P.

JUDGEMENT

(1.) -The petitioner feels aggrieved by the promotion of respondent No 3 as Addl. District and Sessions Judge w.e.f. 30 -9 -1986 in preference to him and challenges its legal validity in this writ petition filed under section 226 of the Constitution

(2.) The petitioner and respondent No 3 were selected as Sub -Judges in the same selection and were appointed on the same date i.e. 30 -7 -1974. The petitioner was, however, senior to respondent No. 3 because of his rating in the merit list. Both the petitioner and respondent No 3 were considered for promotion to the Higher Judicial Service in accordance with principle and procedure prescribed by the High Court for selection for promotion to the said service as per Annexure P -7/A. It appears that the said procedure also provides for calling for a special report from the District and Sessions Judge in Annexure A showing the quality of judgment, knowledge of law and procedure, attitude, administrative capacity and general reputation regarding integrity etc. etc The special reports about all the eligible candidates were called and taken into consideration by a Committee of two Honble Judges of this Court, while assessing the A.C.Rs and the special report. The report of the District and Sessions Judge in relation to the petitioner is said to be containing adverse remarks, which were not communicated to him and hence he had no opportunity of making representation against the same. Those remarks were, however, taken into consideration by the Committee. The petitioner was interviewed by yet another Committee and ultimately the marks given to each of the eligible candidates by the two Committees were totalled to decide their respective merit. The petitioner unfortunately could not be selected in that selection Respondent No. 3, however, was selected and given his promotion w.e.f 30 -9 1986, It appears that the petitioners case received consideration subsequently and he was promoted as Additional District and Sessions Judge we f. 18 -1 -1989. It, further, appears that one Ms Kiran Aggarwal was also considered in the selection in 1984 and not selected. She felt aggrieved by her non -selection and challenged the same before the Supreme Court of India by filing a writ petition under Article 32 of the Constitution, wherein it was the subject -matter of writ petition No. 910 of 1987. The Supreme Court by its order dated 6 4 -1988 looked into the confidential reports and the entire record of the Selection Committee and held that the said Ms Kiran Aggarwal was entitled for promotion as Additional District and Sessions Judge. The State of Himachal Pradesh was directed to create a post in the Higher Judicial Service, which was done and she was accommodated against the said post It is perhaps because of this judgment of the Supreme Court that the petitioner also started feeling aggrieved and claimed his promotion w.e.f a date prior to 30 -9 -1986 and since the said request was not acceded to, the present writ petition has been filed challenging the legal validity thereof.

(3.) The first submission of the learned Counsel for the petitioner is that the principle and procedure developed by the High Court for making selection of candidates for promotion to the Higher Judicial Service is illegal and arbitrary inasmuch as it not only takes into consideration the ACRs of last five years but also special reports of the District and Sessions Judges. It is particularly submitted that the reports of the District and Sessions Judges cannot be the criteria for determining the suitability for such a promotion, as the relationship between the Sub -Judge and the District Judge is not likely to be what it should be It is particularly submitted that in the instant case the District and Sessions Judge i.e. respondent No. 4 was not in happy terms with the petitioner and had given adverse ACRs to him. In such a situation, the report of the said District Judge would be a factor prejudicial to the interest of the petitioner. Assuming that the facts stated above are correct and yet this Court for this reason would not hold that principle and procedure developed by the High Court is in any manner arbitrary or unjustified. Possibility of mis -use of any particular procedure or hardship because of the same cannot be the reason for holding the procedure arbitrary and violative of Article