R.S Pathak, C.J:— In this petition under Article 226 of the Constitution, the petitioners pray for the quashing of the orders appointing respondents nos. 3 to 5 to the cadre of District/Additional District and Sessions Judges and of the orders promoting the respondents nos. 3 to 7 to the post of Selection Grade Sub-ordinate Judges.

2. The petitioners are Sub-ordinate Judges in the State of Himachal Pradesh. They were appointed Sub-ordinate Judges in 1961. The respondent No. 3, Shri N.S Shandil, joined the Himachal Pradesh Judicial Service before the petitioners did, and admittedly he is senior to the petitioner. The respondents nos. 4 to 7, Shri Onkar Nath, Shri A.L Soni, Shri Shamsher Singh and Shri V.P Bhatnagar, originally belonged to the Provincial Civil Service (Judicial Branch) in the erstwhile State of Punjab. On the reorganisation of that State in 1966, these respondents were allotted to the Union Territory of Himachal Pradesh and were absorbed as Sub-ordinate Judges there. On March 19, 1971, the respondent No. 3 was promoted to a Selection Grade Post of Sub-ordinate Judge.

3. Subsequently, the High Court recommended the names of respondents Nos. 3, 4 and 5 for appointment to the cadre of District/Additional District and Sessions Judges. By an order dated May 18, 1971, the Himachal Pradesh Government appointed the said respondents to that cadre.

4. On June 9, 1971, the respondent Nos. 4 and 5, and on July 21, 1971 respondent Nos. 6 and 7, Shri Shamsher Singh and Shri V.P Bhatnagar, were promoted to Selection Grade posts of Sub-ordinate Judges.

5. The case of the petitioners is that they had a right to be considered at the time of promotion of respondents Nos. 3 to 5 to the cadre of District/Additional District & Sessions Judges and also when the said respondents and respondents Nos. 6 and 7 were appointed to Selection Grade posts of Sub-ordinate Judges, it is contender that inasmuch as the petitioners were not considered their fundamental rights under Articles 14 and 16 of the Constitution were violated. It is urged that the High Court and the State Government should have followed the directions laid down in Memorandum No. F. 1/4/55-RPS dated May 16, 1957 addressed by the Government of India in the Ministry of Home Affairs to the Secretaries and the Heads of Departments in Himachal Pradesh laying down that appointments to Selection posts and Selection Grades should be made on the basis of merit with regard to seniority to foe extent indicated therein. The petitioners also contend that Shri Onkar Nath and Shri Soni, respondent Nos. 4 and 5, should not have been considered for promotion at all as they were not confirmed Sub-ordinate Judges.

6. The respondents contest the writ petition and submit that the Memorandum dated May 16, 1957 ceased to have any force after January 25, 1971, when Himachal Pradesh became a State, and that it did not apply to the appointment of District/Additional District & Sessions Judges, and, it was asserted, that promotion had always been mace on the basis of seniority-cum-fitness, that is to say an officer eligible for promotion was considered only in his turn and if found fit he was promoted, his junior having no right to be considered at the same time for the post. It was also contended that although Shri Onkar Nath and Shri Soni had not been confirmed there was no legal bar to their being considered for promotion.

7. Having regard to the controversy between the parties, the first question is whether in law an appointment to the post of District/Additional District and Sessions Judge must be made by selection of the most meritorious officer upon an appraisal of the comparative merit of eligible Sub-ordinate Judges or is it sufficient that it is made on the basis of seniority-cum-fitness? Admittedly, there were no rules at the relevant time in Himachal Pradesh providing the basis on which such appointment was to be made. There is also nothing in Article 233 of the Constitution which specifically lays down any criteria for making such appointment. In the circumstances, it is necessary to search for a principle acceptable in law upon which a basis for appointment can be defined. The principle must be discovered from the context in which the power of appointment has to be exercised, and that requires reference to Article 233 of the Constitution which provides:

“233(1) Appointment of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.

(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate ora pleader and is recommended by the High Court for appointment.”

8. The two clauses of Article 233 read together contemplate:—

(a) A person in the service of the Union or of the State is eligible for appointment to the post of District Judge. It may be noted that “service” here has been defined by the Supreme Court in Chandra Mohan v. State of U.P (1) to mean ‘judicial service.’

(b) A person not in the judicial service of the Union or of the State is eligible for appointment to the post of District Judge if he has been an Advocate or a Pleader for not less than seven years, and if his name is recommended by the High Court for appointment.

9. Appointment from the former class are described as appointments by promotion, while those from the latter class are generally referred to as appointments by direct recruitment.

10. Now, it will be noted that in the case of the Sub-ordinate Courts, Chapter VI of Part VI of the Constitution has taken particular note of the appointment of District Judges. Separate and distinct provision has been made for their appointment the expression ‘District Judge’ has been defined by Article 236(a) as including a number of judicial officers of the sub-ordinate judiciary. It will be apparent from the definition that they are all officers of senior status with powers and responsibilities for greater than those exercised at the lower levels of the sub-ordinate judiciary. Apart from the extended definition in Article 236(A), in its ordinary connotation the expression refers to a District Judge, who is the head of the District judiciary. It is in that sense in which Article 233 may be considered. Because if the principle adopted can satisfy the requirements of appointment to that post, it will more than satisfy the requirements of appointment to those other judicial posts defined in Article 236(a).

11. The post of a District Judge, the Law Commission of India points out in its 14th Report on the Reform of Judicial Administrative, (Vol I. pp. 187, 219), is a key post in the judicial administration of the State. He is the highest judicial authority in the District and is responsible for its judicial administration in all aspects. He is in a measure responsible for ifs efficiency. The District Judge has a number of sub-ordinate judges, or civil judges and munsifs as they are referred to in some States, and judicial magistrates functioning under him. He controls the distribution of work in certain matters. It is apparent that he must be a person of administrative ability and leadership. Besides administrative powers, he is entrusted by the statutory or positive law with the exercise of judicial powers in company cases, matrimonial cases and testamentary cases. In certain States such as Uttar Pradesh, he has been conferred revisional jurisdiction under Section 115, Code of Civil Procedure. In the light of all these considerations, the District Judge must be a competent administrator as well as a Judge of ability and experience. It is not sufficient that he is merely a capable Judge. It is clear that the appointment of a person to the post of District Judge must proceed beyond the mere consideration that he has been a Sub-ordinate Judge and must take into account whether be possesses the qualities, or at least the potential, of administrative ability and leadership.

12. There has been, over a long period of history, a struggle for ascendancy between seniority and merit as principles determining promotion in public organisations of the State. It is now accepted that merit constitutes more reasonable principle, specially at the higher levels of public responsibility. The Supreme Court in Sant Ram Sharma v. State of Rajasthan (2) gave the seal of their approval to the observations of Leonard D. White in his Introduction to the Study of Public Administration: 4th Edn. pp. 380, 383.

“The principle object of a promotion system is to secure the best possible incumbents for the higher positions, while maintaining the morale of the whole organisation. The main interest to be served is public interest, not the personal interest of members of the official group concerned. The public interest is best secured when reasonable opportunities for promotion exist for all qualified employees, when really superior civil servants are enabled to move up as rapidly the promotion ladder as their merits deserve and as vacancies occur, and when selection for promotion is made on the sole basis of merit. For me merit system ought to apply as specifically in making promotions as in original recruitment……Within limits, seniority is entitled to consideration as one criterion of selection. It tends to eliminate favouritism or the suspicion thereof; experience is a certain factor in the making of a successful employee. Seniority is given most weight in promotions from the lowest to other sub-ordinate positions. As employees move up the ladder of responsibility, it is entitled to less and less weight. When seniority is made the sole determining factor, at any level, it is a dangerous guide. It does not follow that the employee longest in service in a particular grade in best suited for promotion to a higher grade: the very opposite may be true.”

(Emphasis mine).

13. There has been considerable criticism of seniority as the principle far making promotions. Prof. Pfiffner (Public Administration New York 1946) points out that the principle of seniority discourages ambition and removes those incentives which develop personality, courage, self-reliance and progressive outlook, and it fosters self-satisfaction, and a dead level of mediocre performance. Dr. E.N Gladden says: “All members of a grade are not fit for promotion: promotions are usually few and far between, an abnormal rather than a normal process; while changes in personnel are most likely to be subject to irregular fluctuations. (The Civil Services: Its problems & future (1948 p. 188)”. Dr. M.P Sharma, Professor of Public Administration, in a work which appears to have been widely accepted, Public Administration in Theory and Practice (1972), p. 370, doubted whether seniority represented a rational and just principle of promotion. He pointed out that the primary object of promotion was not so much the advancement of individual employees as selection of the fittest person to fill a higher rank of service and that mere length of service was no criterion of worth or fitness. He also observed that with the passage of time an employee acquires experience which is a valuable element for fitness, but experience does not indefinitely increase with the length of service. The Supreme Court, in Sant Ram Sharma (supra) observed in regard to the principle of seniority:

“As a system it is fair to every official except the best ones……But though the system is fair to the officials concerned, it is a heavy burden on the public and a great strain on the efficient handling of public business. The problem, therefore, is how to ensure reasonable prospect of advancement to all officials and at the same time to protect the public interest in having the posts field up by the most able men. In other words, the question is how to find a correct balance between seniority and merit in a proper promotion-policy.”

14. It has been said that a milder form of the principle of seniority is that seniority should determine the order in which an officer of a particular grade should be considered for promotion, but those considered unfit may be passed over, and officers below them may be considered. This means the seniority-cum-fitness principle, and what it implies is that the senior person unless unfit should get the promotion (State of Mysore v. Syed Mahmood, 1968 S.L.R 411). The principle has not been found satisfactory, because it implies essentially that seniority should be given preponderating weight. The principle of seniority-cum-fitness has been generally applied at the lower levels of service where the duties are of a routine nature (Public Administration in Theory & Practice (1972) pp. 370). It has also been applied in promotions from a junior scab post to a senior scale post within the same service. P.C Wadhwa v. The Union of India (4). But when the question arises of appointment to a higher service consisting of posts carrying superior responsibility the emphasis shifts from seniority-cum-fitness to merit-cum-seniority. The principle of merit determines that the most meritorious or best qualified person is selected for promotion. In Dr. M.P Sharma's “Public Administration in Theory and Practice”, from which I have derived much assistance, there appears the following statement:

“In principle, authoritative opinion seems to be agreed that

(a) in promotion to the higher posts, merit should be the only consideration to the total exclusion of seniority;

(b) in promotion to middle posts, merit should be the determining factor and seniority a secondary one; and (c) in promotion to lower rung posts, seniority should carry weight, but even here care should be taken to ensure that exceptional merit is rewarded by quick promotion”.

15. It has been noticed that having regard to the responsibilities attaching to the post of District Judge the administrative and judicial ability called for by the requirements of that office are of a higher order than those exercised ordinarily by Sub-ordinate Judges. Appointment to the post of District Judge is ill-served by relying upon seniority as the dominating factor of reference. The principle of seniority-cum-merit implies that seniority is the primary consideration with fitness as the supporting concomitant. It is opposed to the observations of Leonard D. White (supra), approved of by the Supreme Court, that “the public interest is best secured when reasonable opportunities for promotions exist for all qualified employees, when really superior civil servants are enabled to move as rapidly up the promotion ladder as their merits deserve as Vacancies occur, when selection for promotion is made on the sole basis of merit”. When merit is the dominating principle, the rule of merit-cum-seniority is applied. And when that rule is applied, it is necessary that the comparative merit of all eligible candidates must be considered. There must be selection, and as the Supereme Court observed in Janki Prasad v. State of Jummu and Kashmir (5), “selection means that the men selected for promotion must be of merit. Where promotion is by seniority merit takes the second place, but when it is a selection merit takes the first place……”. Emphasis on merit is embodied in a formula stated with different variations. Merit-cum-seniority is one and we are not unfamiliar with “merit with due regard to seniority.” Explaining such a rule applicable to appointment in the Indian Administrative Service, Untwalia, J., a mem her of the Full Bench of the Patna High Court on N.P Mathur & Others… v. State Of Bihar & Others… (6) said:

“An overall picture has to be taken and if, in the opinion of the appointing authority, a particular officer possesses merit superior to that of his seniors then irrelative of his position in the gradation list the selection for appointment has to fall on him. Of course, the phrase “with regard to seniority” can only mean that seniority cannot be ignored. Merit being equal or balanced or not decisively in favour of a junior incumbent, selection has to be made in favour of a senior one.”

16. In the case of promotion posts it appears to be the view that appointment thereto should be made on the basis of merit, and because it is not possible to accommodate more than a strictly limited number of capable employees in promotion posts the concept of Selection Grade posts has been evolved appointment to which is also made on the same principle. It is interesting to note that the Central Pay Commission in Chapter X Paragraph 10 of its Report recommended that as there were limited outlets for promotion to higher posts and there was the need for providing incentive to employees a certain percentage of the posts in the grade should carry a somewhat higher scale of pay and these posts should be described as Selection Grade Posts. Referring tr this recommendation the Supreme Court in Lalit Mohan Deb v. The Union of India (1), said:

“It is Well recognised that a promotion post is a higher post with a higher pay. A selection grade has higher pay but in the same post. A selection grade is intended to ensure that capable employees who may not get a chance of promotion on account of limited outlets of promotion should at least be placed in the selection grade to prevent stagnation on the maximum of the scale. Selection grades are, therefore, created in the interest of greater efficiency.”

17. It is clear that the Supreme Court contemplated that both promotion posts, which imply induction into a higher grade, and selection grade posts, which exist in the same grade are intended to be filled by employees on the basis of their merit. In both cases, it is the same principle which operates.

18. Reference may be made pertinently to the Report of the Disciplinary Proceedings Enquiry Committee appointed by the Government of Uttar Pradesh in 1952 and the action taken by the State Government pursuant to it. It was a High Powered Committee and headed by the Chief Minister, Shri Gobind Ballabh Pant. Among other matters it enquired into measures for promoting efficiency and integrity in the Government services. Its recommendations (Report of the Disciplinary Proceedings Inquiry Committee 1952, Pt-I, paragraph 25) in the matter of promotion from one service to another and from a past in the time scale to a post outside it were accepted by the State Government, and an excerpt from Chapter IX, Annexure-III to the Government Order No. 0-305.II-B-53 dated January 30, 1953 may be reproduced:

“Merit as the basis of promotions—

The Governor has given careful consideration to the recommendation contained in paragraph 25 of Part I of the Report of the Disciplinary proceedings Inquiry Committee, on the subject of promotion of government servants. Broadly speaking, promotions of government servants have hitherto been regulated by two principles. For promotions within a service, seniority has been accepted as the determining factor except in cases where an officer is found to be under for the promotion. On the other hand, in promotions from one service to another, the principle followed has been to select the most meritorious officers from the entire held of eligibility, that is to say, from among the whole group of officers above a certain standing. The different service rules accordingly provided for promotion in conformity with one or the other of these principles. In actual working, however, it has been found that considerations of merit have not received the importance that they deserved, even where they laid down as a guiding criterion, and promotions have followed generally the line of seniority, if only because it is more conveniently determined. This emphasis on seniority has tendered to cramp effort among government servants, who have been encouraged to think that they have only to wait for their turn to earn promotions. Such attitude puts a premium on slackness and complacency. For improving the moral efficiency and integrity of Government servants, it seems necessary that the deserving government servants should be promoted on consideration of merit alone. Such uniform basis of promotion would not mean that a senior man who is otherwise competent in all respects should be superseded on account of his seniority but would only emphasize that in judging his competence and fitness for promotion, his merit and not seniority should be the first criterion.

2. This view has also been influenced by the consideration that after abolition of the graded system of pay and its replacement by time-scale in the various services under the State, promotions within the same service which used to be governed by the principle of seniority subject to fitness have really lost their significance. Service on a time-scale already attached sufficient weight to seniority in the shape of periodical increments for which considerations of merit are not important. Outside the time-scale, however, there is no reason why there should be rigid adherence to the principle of seniority. In any case, promotions outside the time-scale would generally be of the kind for which, even previously, the principle of rigorous selection on the basis of merit from the entire field of eligibility has been laid down.

3. Impressive as these considerations for giving due weight to merit are, they are all the more important in a democratic state, which, if it is to progre on sound lines must not only equip itself with a properly recruited body of public servants, but also lake care, at all times to ensure that standards of efficiency and integrity among the services are maintained at the highest. The Governor has, therefore, decided that in determining the fitness of a person for promotion, his merit alone shall be taken into consideration irrespective of seniority. In order, however, that experience may not altogether be discounted, the field of eligibility for promotions should be determined by providing for a prescribed minimum standing in the service as one of the conditions for promotion.”

19. Thereafter, by Government order No. 2056.II-B-54 dated July 19, 1954, the Government of Uttar Pradesh lad down the factors to be considered in the assessment of merit. They included “competence, efficiency, ??? straightforwardness, dependability, integrity, missionary zeal, effective supervision and efforts to eliminate corruption.”

20. It has been urged by the respondents that it is open to an employer to adopt any rule or principle he chooses for the purpose of selecting a servant in my opinion, the ordinary case of appointment of a servant by an employer does not afford an appropriate analogy. An appointment under Article 233 of the Constitution cannot be identified with it. Here we are concerned with the post of District Judge to which the Constitution makers, by making specific provision in that fundamental document, have assigned more than ordinary significance.

21. I would therefore hold that having regard to the duties and responsibilities attaching to the post of District Judge and the position occupied by the District Judge in the judicial hierarchy, appointment to that post must be made by selection of the most meritorious officer upon in appraisal of the comparative merit of eligible Sub-ordinate Judges. In my opinion, the principle of seniority-cum-fitness would not be a valid principle.

22. The facts of this case may now be examined to see whether upon the considerations set out above the petitioners are entitled to relief.

23. The petitioners say that they should also have been considered it the time when the respondents Nos. 3 to 5 were appointed as District/Additional District & Sessions Judges, and the omission to consider them, it is said, constitutes a violation of Articles 14 and 16 of the Constitution. In order that the petitioners can maintain this petition it is necessary that they should establish, prima facie at least, that if they had also been considered at the time when the impugned appointments were made they would have stood a fair chance of being preferred over respondents Nos. 3 to 5. They must show upon relevant data that on an appraisal of their comparative merit there is a probability that they would be found superior to the respondents Nos. 3 to 5. The High Court will not issue a writ unless it is satisfied that its grant will result in the probability of actual belief flowing to the petitioner from the grant of the writ. For this reason, ??? futile writ is issued. There must be real and substantial expectation of actual relief consequent to this writ. See R. v. Cousins (8).

24. According to the averments in the petition, the first petitioner practised as an Advocate from 1948 to 1959, and was then appointed a Government Advocate on a salary of Rs. 500 per month. In 1961 he was appointed a Sub-ordinate Judge in the scale of Rs. 250-850 with the initial pay of Rs. 390 per month. From 1963 he was discharging the duties of a Senior Sub-ordinate Judge-cum-Assistant Sessions Judge, and in 1968 he was appointed Chief Judicial Magistrate, Dharamsala. In November 1970 his salary was Rs. 1,10 per month. The petitioner No. 2 practised law from 1952 to 1961. In 1961 he was appointed Sub-ordinate Judge in the grade of Rs. 250-350, and his commencing salary was fixed at Rs. 310. From 1965 he discharged the duties of a Senior Sub-ordinate Judge-cum-Assistant Sessions Judge. In 1968 he was posted as Sub-ordinate Judge cum-Judicial Magistrate at Una. The next year he was posted as Senior Sub-ordinate Judge-cum-Judicial Magistrate First Class, Dharamsala. In 1971 he was appointed Senior Sub-ordinate Judge-cum-Chief Judicial Magistrate, Simla.

25. As regards the respondent No. 3, nothing at all has been shown by the petitioner to indicate that they had a better claim to appointment, than he had. It is only against respondent Nos. 4 and 5 that an attempt has been made to show that they were not deserving of promotion. It is pointed out that they were not confirmed as Sub-ordinate Judges along with their colleagues of the same batch, and that the respondent No. 4 was not allowed to cross the efficiency bar when it was due and that is all. It seems to me that the mere circumstance that the respondents Nos. 4 and 5 were not confirmed Sub-ordinate Judges at the relevant time could not disqualify them from consideration for promotion. There were no rules at the time that only confirmed Sub-ordinate Judges would be eligible for appointment under Article 233. Nor does Article 233 lay down any such limitation.

26. In my opinion, the material on the record is insufficient for proving even prima facie that the petitioners would have been appointed as District/Additional District and Sessions Judges in preference to the respondents No. 3 to 5. The considerations upon which such appointments must be made are readily implied from what has been said in the preceding pages. Indeed, the submission of the petitioners set out in the writ petition is merely that if they had been considered they might have been found suitable. It seems to me that no legitimate case has been made out by the petitioners for the quashing of the appointments of the respondents No. 3 to 5 as District/Additional District and Sessions Judges.

27. In the circumstances, it is not necessary to go into the further question whether the appointments of respondent Nos. 3 to 5 were made in accordance with the principle which has been discussed above.

28. There has been serious debate before us on the question whether the directions contained in the Memorandum No. F-1/4/55-PPS dated May 16, 1957 had to be applied by the High Court and the State Government when the impugned appointments were made.

29. In the view that upon the facts set out in the writ petition the petitioners have not made out any case it is not necessary, I think, to consider that question also.

30. For the very reasons which defeat the petitioners' right to relief against the appointment of respondents nos. 3 to 5 as District/Additional District and Sessions Judges the petitioners must also be denied relief against the appointment of the respondents Nos. 3 to 7 as Selection Grade Sub-ordinate Judges.

31. Accordingly, the writ petition is dismissed. But in the circumstances there is no order as to costs.

32. Petition dismissed.