A Short question of law raised in this appeal is whether the writ peti­tioner-respondent is entitled to ap­pointment to the Selection Grade post of District and Sessions Judge as per the requirement of Rule 12 of the Jammu and Kashmir Higher Judicial Service Rules, 1983 (for brevity the 1983 Rules). In this Letters Patent Ap­peal the appellant-High Court has chal­lenged the view of the learned Single Judge holding the writ petitioner-re­spondent entitled to the Selection Grade post of District and Sessions Judge. The instant appeal is directed against the judgment and order dated 31.01.2008 rendered by the learned Single Judge in SWP No. 2027 of 1991, relatable to this appeal. 2. There is no serious controversy on facts. The writ petitioner-respon­dent was working on the post of Dis­trict and Sessions Judge. His turn for consideration for Selection Grade post had reached. Accordingly, his case con­sidered by the Full Court of this High Court in a meeting held on 14.10.1991 at Srinagar and on account of the fact that the officer had earned two aver­age reports for the years 1989-90 and 1990-91, it was found that he would not qualify for grant of Selection Grade. 3. The learned Single Judge has been persuaded that the average reports were never conveyed to the writ peti­tioner-respondent and therefore can­not have any adverse effect on the grant of Selection Grade. In that regard a reference has been made to the stand of the High Court that the APRs were communication to the writ petitioner-respondent through the registered post. The Learned Single Judge has pro­ceeded to observe as under: - ".......This plea has no doubt been rebutted by respondent to maintain that APRs were communicated to pe­titioner through registered post on 15.12.1991, but that gets substan­tially diluted by the letter of Senior Post Master concerned according to which "after examining the record of current year till date no registered let­ter had been addressed to Mr. Gowhar, District Judge, Bank Cases, Srinagar so the question of its deliv­ery to him (G. N. Gowhar) does not arise". Gowhar, District Judge, Bank Cases, Srinagar so the question of its deliv­ery to him (G. N. Gowhar) does not arise". The letter is dated 15.12.1991 and its contents clearly convey that no registered letter purporting to have been addressed to petitioner was ever posted by respondent High Court who have not made any effort whatsoever to clarify this aspect of the matter which, to say the least, appears to be quite conspicuous and unusual be­cause it not only tends to dilute the veracity of reply filed by respondent Register but also strengths petitioner's plea of not having been conveyed the APRs at relevant point of time. All these factors sufficiently indicate that the anguish and agony expressed by petitioner in his plead­ings and during submissions is not wholly unfounded." 4. The Learned Single Judge was also influenced by the breakdown of public order created by militancy dur­ing the relevant period namely 1990-91 and proceeded to hold that it was not clear from the official record as to what material was placed before the High Court which prompted it to record av­erage reports in respect of the writ pe­titioner-respondent. The view of the learned Single Judge in that respect reads thus: - “........In view of the texture of his APRs, as aforesaid, the petitioner has also tried to argue that out often items prescribed for assessing officers he has earned "good" in seven even dur­ing 1989, 1990 and 1991 which re­garding remaining two pertaining to general reputation and reputation of integrity he has been assessed as "average" which then was not deemed to be adverse. So in view of the fact that selection grade was required to be given on basis of merit, efficiency and integrity he could not have been ignored for grant of the same because no adverse entry existed against him regarding any of the three elements. He has also urged that in view of over­all performance the "net result" in his APRs even for 1989, 1990 and 1991 was required to be rated as "good" and not "average". He has also urged that in view of over­all performance the "net result" in his APRs even for 1989, 1990 and 1991 was required to be rated as "good" and not "average". As already said, it is not very clear as to what materials were urged for assessing officers to record their APRs for the years under reference because of the situation prevalent then wherein almost all the officers of dis­trict judiciary were suffering total in­ertia due to which the variations in their recorded APRs appears to be attributed to subjective perceptions rather than any objective assessment and as such do not appear to have any tangible basis". 5. After holding in the aforesaid man­ner the learned Single Judge proceeded to decide that the writ petitioner-re­spondent has been denied the Selec­tion Grade Post without sound reasons and issued directions that he would be placed in the Selection Grade from the date it was given to his juniors with all consequential pecuniary benefits to him as a Retired Officer. 6. Mr. M. I. Qadri, learned Advocate General appearing for the High Court has vehemently argued that once in column Nos. 10 and 12 which are de­voted to the reputation for integrity the officer has earned average reports for consecutive two years namely 1989-90 & 1990-91 then there is not reason to decorate such an officer by giving him Selection Grade post of a District and Sessions Judge. According to the learned Advocate General such a course would be contrary to numerous judgments of the Hon’ble Supreme Court which provide for grant of promo­tion only to those who have earned good reputation for maintaining integrity which invariably have to be regarded as part of merit. In that regard reliance has been placed on the observations made by Hon’ble the Supreme Court in the judgments rendered in cases of Nawal Singh Vs. State of UP (2003) 8 SCC 117 , Chandra Singh & Ors Vs. State of Rajasthan & Ors, (2003) 6 SCC 545 , Shiv Dayal Gupta Vs. State of Rajanthan, (2005) 13 SCC 581 . It has thus been urged that the view taken by the learned Single Judge suffers from inherent fallacy, illegality, unfair­ness and is wholly unjust and there­fore the same is liable to be reserved. 7. Mr. Z. A. Shah, learned Sr. State of Rajanthan, (2005) 13 SCC 581 . It has thus been urged that the view taken by the learned Single Judge suffers from inherent fallacy, illegality, unfair­ness and is wholly unjust and there­fore the same is liable to be reserved. 7. Mr. Z. A. Shah, learned Sr. Coun­sel appearing for the writ petitioner-respondent has vehemently argued that on fact it is clear that the average reports for the years 1989-90 & 1990-91 were never communicated to the writ petitioner-respondent. According to Mr. Shah, the purpose of writing APR is defeated if the report is not commu­nicated to the concerned officer. He has maintained that in the absence of com­munication the officer would not be able to improve himself because he would not be aware of his defects nor he would be able to claim any relief from the authorities by making repre­sentation that the impression created by his functioning was not well founded. In the absence of communication the officer cannot improve his functioning nor he can make the representation by clarifying his position factually be­fore the authority. Emphasizing the importance of communication of re­ports the learned senior counsel has placed reliance on the judgment of Hon’ble the Supreme Court rendered in the case of Dev Dutt. Vs. Union of India, (2008) 8 SCC 725 and has ar­gued that by now everyone is aware that Annual Confidential Reports, whether good, average or bad, are re­quired to be communicated. 8. Having heard the learned counsel for the parties we feel that for deter­mining the issue raised in this appeal, it would be imperative to read the 1983 Rules. Rule 12 of the Rules has been relied upon in its counter by the appel­lant-High Court which deals with ap­pointment of a District and Sessions Judge to the Selection Grade and the same is as under: - "12. Appointment to the Selection Grade: Appointment to the selection grade posts in the service shall be made by the High Court from amongst the members of the ser­vice holding the post of District and Sessions Judge on the basis of efficiency, merit and integrity". 9. A perusal of the Rule would reveal that appointment to the Selection Grade post of District Sessions Judge has to be made by the High Court from amongst the members of the service holding that post on the basis of three factors, namely, efficiency, merit and integrity. 9. A perusal of the Rule would reveal that appointment to the Selection Grade post of District Sessions Judge has to be made by the High Court from amongst the members of the service holding that post on the basis of three factors, namely, efficiency, merit and integrity. Thus the Rule in no unmis­takable terms require taking into ac­count three factors, namely, efficiency, merit and integrity. When we exam­ine the case of the writ petitioner-re­spondent in accordance with the re­quirement of Rule 12 it becomes evi­dent that according to the comments given in column Nos. 10 and 12, the integrity of the officer was average and therefore the High Court found that he was not entitled to the grant of Selec­tion Grade on the post of District and Sessions Judge, the factual position is evident from the APRs of the writ peti­tioner-respondent, which are extracted below for ready reference: - Annual Confidential Report for the years 1989-90 & 1990-91 S. No. 1. --------------------------------------------------------------------------------- Name and Desi­gnation 2. --------------------------------------------------------------------------------- Post/Posts held during the year 3. --------------------------------------------------------------------------------- Whether in charge of any deptt., G. Nazar at or Copying. 4. --------------------------------------------------------------------------------- Knowledge of law and Judicial capacity 5. --------------------------------------------------------------------------------- Is he indus­trious- and has coped affectively with heavy work. 6. --------------------------------------------------------------------------------- Remarks about his promptness in the dis­posal of cases 7. --------------------------------------------------------------------------------- Remarks about supervision, distribution of business 8. among and his control over subordi­nate court. --------------------------------------------------------------------------------- Remarks about his attitude towards his superiors 9. subordinates & colleges. --------------------------------------------------------------------------------- Remarks as out reputation of integrity & impartiality 10. Average --------------------------------------------------------------------------------- Behaviour towards members of the bar and the public 11. --------------------------------------------------------------------------------- General reputation 12. Average --------------------------------------------------------------------------------- Net result (very good, good, average, poor) 13. 10. The objective analysis of the aforesaid APRs would show that the writ petitioner-respondent has earned Av­erage reports for the year 1989-90 & 1990-91. Under columns 10 and 12 the comments recorded are 'Average' & both these columns are devoted to the remarks about the reputation concern­ing integrity and impartiality. If the reputation of an officer for integrity and impartiality is not up to the mark then it is not possible to decorate such an officer by granting Selection Grade which is as good as promotion. It has been repeatedly held by their Lordships' of the Supreme Court that judicial ser­vice is not an employment because the Judicial Officers discharge duties while exercising the sovereign powers of the State. It has been repeatedly held by their Lordships' of the Supreme Court that judicial ser­vice is not an employment because the Judicial Officers discharge duties while exercising the sovereign powers of the State. Therefore, it would be ap­propriate to recall the provisions of Rule 12 which provide for grant of se­lection grade only to such officers who have efficiency, merit and integrity. The aforesaid Rule must be read in the light of the observations made by the Hon'ble Supreme Court in Nawal Singh's case (supra) which reads thus: "At the outset, it is to be reiterated that the judicial service is not a ser­vice in the sense of an employment. Judges are discharging their func­tions which exercising the sovereign judicial power of the State. Their hon­esty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. Further, the nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful in­tegrity or who have lost their utility. If such evaluation is done by the Com­mittee of the High Court Judges and is affirmed in the writ petition, except in very exceptional circumstances, this Court would not interfere with the same, particularly because order of compulsory retirement is based on the subjective satisfaction of the Author­ity, (emphasis Added)". Similar sentiments have been ech­oed in paras 47 and 48 of the Judgment rendered in the case of Chandra Singh 85 Ors Vs. State of Rajasthan & Ors (2003) 6 SCC 545 . 11. The Hon"ble Supreme Court has also reiterated the same principle in Shiv Dayal Gupta Vs. State of Rajasthan (2005) 13 SCC 581 where the entry doubting the integrity made in the year 1983-84 was considered justified to compulsorily retire an officer. The only conclusion possible is that in judicial service there is zero tolerance for an officer who indulges in activities which show their integrity in poor light. 12. It is also equally well settled that for grant of Selection Grade all those considerations would be applicable which apply for considering an officer for promotion. In that regard reliance may be placed on a judgment of Con­stitution Bench of the Hon’ble Supreme Court in case of Lalit Mohan Deb & Ors Vs. Union of India & Ors. (1973) 3 SCC 862 . In that regard reliance may be placed on a judgment of Con­stitution Bench of the Hon’ble Supreme Court in case of Lalit Mohan Deb & Ors Vs. Union of India & Ors. (1973) 3 SCC 862 . If an officer has two average reports out of three proceedings years impinging upon his integrity then it is not possible to award him a Selection Grade post. The view taken by the learned Single Judge, therefore, does not merit acceptance and thus is liable to be set aside. 13. The question that survives for determination is as to whether the re­ports were ever communicated to the writ petitioner-respondent. In that re­gard it would be appropriate to notice the stand taken by the High Court in the counter dated 17.10.1998 filed by Shri Hakim Imtiyaz Hussain, Registrar General and the same read as under: - "........These APRs on which the Hon'ble court relied have been duly communicated to the said officer un­der letter No. 1344/GS dated 3rd of May, 1991. The officer has not made any representation against these APRs which have remained un-challenged and are therefore, biding on the petitioner. Contention of the peti­tioner in this behalf is, therefore, fac­tually and legally incorrect and mis­conceived. In reply to para (a) and (b) of the para 2 of the writ petitioner, it is sub­mitted that same is factually incorrect to the extent that ACRs has not been communicated. The ACRs duly com­municated to the officer though regis­tered post under Registration No. 2108 dated 04.05.1991." 14. A counter affidavit has been filed by the writ petitioner-respondent claiming that the letter under Regis­ter No. 2108 dated 04.05.1991 or letter No. 1344/GS dated 3rd of May, 1991 were not received by him. It is pleaded case by the writ petitioner-respondent that he had sent a communication to Sr. Post Master Srinagar. His assertion in that regard reads thus: - ".........Hence he lodged an applica­tion with the senior post master GPO Srinagar on 15.12.91. The Senior Post Master replied: 'after examining the record of current year till date no reg­istered letter addressed to Mr. G. N. Gowhar, District Judge Bank Cases Srinagar reveals to have been re­ceived, so the question of its delivery to you does not arise'. It shows that no registered letter was sent by the High Court of J&K Jammu/Srinagar from 01.01.1991 to 15.12.1991 now was any such letter delivered to the petitioner. G. N. Gowhar, District Judge Bank Cases Srinagar reveals to have been re­ceived, so the question of its delivery to you does not arise'. It shows that no registered letter was sent by the High Court of J&K Jammu/Srinagar from 01.01.1991 to 15.12.1991 now was any such letter delivered to the petitioner. The copy of the letter of Post Master is annexed hereto as Anx. E. Hence the too harped plea of communication stands exposed " 15. In that regard he has placed reli­ance on communication dated 15.12.1991 sent by the Senior Post Master Srinagar which is self explana­tory and the same is set out below: - "To Shri G. N. Gowhar, District Judge, Srinagar. No. CR3A/F/R2 dated 15.12.1991. Sub: -- Delivery of Registered Post. Sir, Kindly intimate about the post of­fice Registry no and date of posting of the desired registered letter so that this office can give definite reply. Yet after examining the record of current year 1991 till date no registered let­ter addressed to Mr. G. N. Gowhar, District Judge, Bank Cases Srinagar seems to have been received so the question of its delivery to you does not arise." 16. It was for that reason that the Senior Post Master Srinagar had ex­pressed his inability to give his defi­nite reply in the absence of Post Office Registry No. and date of posting of the registered letter. It proceeded to sug­gest that no registered letter addressed to Mr. G. N. Gowhar at his address as District Judge, Bank Cases Srinagar seems to have been received. On the basis of the aforesaid communication it could not be concluded by any rea­sonable person that the appellant-High Court did not send any registered let­ter. The writ petitioner-respondent could have secured the letter No. and date of posting but instead of adopting the aforesaid course he preferred to secure some advantage by giving vague information. In order to satisfy our­selves we sent for the original record. First we take up the dispatch register of the High Court which is maintained from 01.04.1991. When we reach the date of numerous despatches on 03.05.1991 it is revealed that a num­ber of District Judges have been con­veyed APR for the period 1989-90 which includes S/Sh. K. L. Bazaz, P. L. Dassi, B. L. Bhat, A. M. Fazili and then G. N. Gowhar. The name of the writ peti­tioner-respondent figures at serial No. 1344/95. When we reach the date of numerous despatches on 03.05.1991 it is revealed that a num­ber of District Judges have been con­veyed APR for the period 1989-90 which includes S/Sh. K. L. Bazaz, P. L. Dassi, B. L. Bhat, A. M. Fazili and then G. N. Gowhar. The name of the writ peti­tioner-respondent figures at serial No. 1344/95. The register contains entry up to May 1991. By no stretch of imagi­nation it could be concluded that it is not a record maintained during the or­dinary course of business. Then there is another register which contains the receipt of dispatch by registered post. It is named as Stamp Register w.e.f. 01.04.1991 to 23.05.1991. Vide receipt No. 2108 dated 04.05.1991 a letter by registered post was sent from the post officer Darbargarh (Jammu) and a sum of Rs. 8.00 was spent as postal fee. It is thus not possible to conclude that pre­sumption under Section 114 of the Evi­dence Act Svt. 1977 (1920 A.D) attached to the registered letter has been rebut­ted by the letter of Senior Post Master darted 15.12.1991. According to Section 114 the Court has to presume the existence of any fact which it thinks likely to have happened, after taking into account the common course of natural events, human conduct and public and private business concern­ing the facts of a particular case. The illustrations (e) & (f) further attach a presumption that judicial and official acts had been regularly performed and that the common course of business has been followed in particular cases. The record depicts that letter No. 1344/GS dated 3rd of May, 1991 sent through registered No. 2108 dated 04.05.1991 were not received back undelivered. The attempt of the writ petitioner-re­spondent to rebut the aforesaid pre­sumption is totally without substance because no specific information in re­spect of letter and date was sent to the Senior Post Master. The record further shows that on 16.11.1991 registered letters were sent to various respon­dents in the proceedings before the Writ court and most of them have put in appearance after service which fur­ther proves to the contrary that the postal services were not affected ad­versely. Therefore, the findings re­corded by the learned Single Judge are not sustainable. 17. The record further shows that on 16.11.1991 registered letters were sent to various respon­dents in the proceedings before the Writ court and most of them have put in appearance after service which fur­ther proves to the contrary that the postal services were not affected ad­versely. Therefore, the findings re­corded by the learned Single Judge are not sustainable. 17. We also fail to appreciate as to how the learned Single Judge could read any other consideration in the decision of the High Court to deny the Selection Grade to the writ petitioner-respondent. In the usual course of busi­ness the consideration of cases for pro­motion, increment, efficiency bar and Selection Grade are not taken imme­diately after the promotion are due. The delay in considering the cases would not mean, as suggested by the learned Single Judge, that it was on some extraneous considerations. Therefore, we cannot subscribe to the view taken by the learned Single Judge and thus set aside the same. Moreover there is not allegation of personal malafide against any one nor there could be any. 18. The judgment of the Supreme Court in Dew Dutt's case would not re­quire any detailed consideration be­cause a reading of paras 26, 33 and 36 of the judgment suggests that the Su­preme Court was developing new prin­ciples which of course has to be applied prospectively. A newly developed rule in 2008 cannot be applied to a case of 1991. Therefore, we do not find any substance in the submission based on Dev Dutt's case (supra). 19. As a sequel to the above discus­sion, the appeal is allowed and the judg­ment and order of the learned Single Judge is set aside. 20. No order as to costs. ___________