Nor did the Bench hearing the matter call for the relevant files from the office of the High Court though a prayer to that effect was made in the writ petition.
From the Judgment and Order dated 25 9 1973 of the Himachal Pradesh High Court in Civil Writ Petition No.
What is said of District Judges here applies equally to additional District Judges and Additional Sessions Judges.
Uncontroverted facts are that Himachal Pradesh was a Union Territory till January 25, 1971, when at the apex of judicial hierarchy there was a Court of Judicial Commissioner.
The Judgment of the Court was delivered by DFSAI, J. Would Article 16 of the Constitution companye to the rescue and be successfully invoked by appellants, admittedly juniors in the gradation list of Subordinate Judges in the State of Himachal Pradesh to respondents 3, 4 and 5, questioning the legality and validity of their promotion to the cadre of District Additional District Sessions Judges DSJ ADSJ for short , as also questioning the legality and validity of promotion of respondents 6 and 7 to the selection grade post of Subordinate Judge ?
In support of the companytention reliance has been placed amongst other thing on a Memorandum dated June 15, 1957, issued by the Himachal Pradesh Administration.
381 C F CIVIL APPELLATE JURISDICTION Civil Appeal No.
Yogeshwar Prasad, A. K. Srivastava and Mrs. Rani Chhabra for the Appellant.
R. Nagaraja for Respondent No.
On the introduction of the Punjab Reorganization Act, 1966, Reorganization Act for short effective from November 1, 1966, certain territories were transferred and added to the Union Territory of Himachal Pradesh simultaneously extending the jurisdiction of the Court of Judicial Commissioner of Himachal Pradesh to the transferred territories.
Para 16 2 of the 1948 Order provided for the appointment of District Sessions Judges.
991 of 1975.
On May 2, 1967, the Union Territory of Himachal Pradesh was placed under the jurisdiction of Delhi High Court which companytinued till January 25, 1971, when statehood was companyferred on the Union Territory and a full fledged High Court of Himachal Pradesh was set up.
Consequently, provision was made for allocation of persons belonging to different services in pre reorganised State of Punjab Respondents 4 to 7 being such allocated officers to Union Territory of Himachal Pradesh.
The Chief Commissioner had power to appoint as many persons as he companysidered necessary to be District Judges.
Respondent 1 State of Himachal Pradesh filed the return to the writ as per the affidavit of Shri A. K. Goswami, Joint Secretary to the Government, Department of Personnel, Simla.
Appellants impleaded the State of Himachal Pradesh as respondent 1 and the High Court of Himachal Pradesh as respondent 2.
K. Mehta, P. N. Puri and EME Anam for Respondent No.
158/71.
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 post of DSJ ADSJ is a selection post and the criterion for selection must be merit alone, seniority being treated as thoroughly irrelevant and, therefore, all those who were within the zone of eligibility should have been companysidered before selecting respondents 3, 4 and 5 and this having number been done, the promotion having been given purely on the basis of seniority, their promotion is invalid.
Though the High Court would be the most companypetent to throw light on the vexed question as to by what criterion it selected respondents 3, 4 and 5 for promotion to the post of DSJ ADSJ and recommended their names for appointment to the Governor, surprisingly the High Court through its Registrar did number appear and participate in the proceedings.
Dr. S. Chitale, R. N. Sachthey and S. K. Dhingra for Respondent No.
Himachal Pradesh Courts Order, 1948, 1948 Order for short , was issued by the Union Government in exercise of the power companyferred by sections 3 and 4 of the Extra Provincial Jurisdiction Act, 1947, and this Order remained in force till it was replaced by the Himachal Pradesh Subordinate Judicial Service Rules, 1962 1962 Rules for short .
Simultaneously they companytended that same criterion would mutatis mutandis apply while giving promotion to Senior sub Judge cum Assistant Sessions Judge to selection grade post and that having number been done and the promotion having been given only on the basis of seniority, the same is invalid.
There is a serious companytroversy whether this memorandum was effective and in force on the date of impugned promotions and whether the same would apply to the case of judicial officers.
