JUDGMENT

PATHAK, J.:— 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, J. (for himself and on behalf of P. N. Bhagwati, J.) :-

3. Four petitioners belonging to the cadre of Subordinate Judicial Service in the State of Jammu & 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 & 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 & 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 SC 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 SC, holding that the point involved in the writ petition relating to the interpretation of Art. 109 of the Constitution of Jammu & 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.

4. 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