JUDGMENT

DESAI, J. :— Would Article 16 of the Constitution come 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 ?

2. 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. On the introduction of the Punjab Reorganisation Act, 1966, (Reorganisation 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. 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. On May 2, 1967, the Union Territory of Himachal Pradesh was placed under the jurisdiction of Delhi High Court which continued till Jan. 25, 1971, when statehood was conferred on the Union Territory and a full-fledged High Court of Himachal Pradesh was set up.

3. Himachal Pradesh (Courts) Order, 1948, (1948 Order for short), was issued by the Union Government in exercise of the power conferred 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). Para 16 (2) of the 1948 Order provided for the appointment of District & Sessions Judges. The Chief Commissioner had power to appoint as many persons as he considered necessary to be District Judges. 1962 Rules appear not to have made any departure in this behalf.

4. Promotional avenue in Himachal Pradesh Subordinate Judicial Service moves vertically from the grass-root entry as Subordinate Judge promotable as Senior Sub-Judge-cum-Assistant Sessions Judge and then the further promotional avenue is DSJ/ADSJ.

5. 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 considered before selecting respondents 3, 4, and 5 and this having not been done. The promotion having been given purely on the basis of seniority, their promotion is invalid. Simultaneously they contended 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 not been done and the promotion having been given only on the basis of seniority, the same is invalid. In support of the contention reliance has been placed amongst other things on a Memorandum dated June 15, 1957, issued by the Himachal Pradesh Administration. There is a serious controversy 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.

6. Appellants impleaded the State of Himachal Pradesh as respondent 1 and the High Court of Himachal Pradesh as respondent 2. Though the High Court would be the most competent 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