State of Kerala Vs. A. Lakshmikutty
& Ors [1986] INSC 228 (10 November 1986)
SEN, A.P. (J) SEN, A.P. (J) RAY, B.C. (J)
CITATION: 1987 AIR 331 1987 SCR (1) 136 1986
SCC (4) 632 JT 1986 818 1986 SCALE (2)773
CITATOR INFO: RF 1989 SC 49 (16,19)
ACT:
Judicial Review of the act of Governor not to
appoint candidates for Dt. Judges' post as recommended by the High Court and
Writ of Mandamus, issuance of--Whether the High Court could issue a writ of
mandamus to the Governor of the State directing him to act as per the
recommendation of the High Court to fill up the vacancies in the posts of
District Judges reserved for direct recruitment from the practising members of
the bar under Article 233(1) of the Constitution--Constitution of India, 1950,
Articles 163(1), 226 and 233 read with Rule 2(b) of the Kerala State Higher
Judicial Rules, 1961 and Rule 14(c) of the Kerala State and Subordinate Service
Rules, 1958.
HEADNOTE:
Rule 2(b) of the Kerala State Higher Judicial
Service Rules, 1961 requires that the cycle of rotation governing reservation
of posts as laid down in Rule 14(c) of the Kerala State and Subordinate Service
Rules, 1958 be followed in the selection and appointment of District Judges by
direct recruitment. Under Rule 14(c) appointments shall be made in the order of
rotation specified therein in every cycle of 20 vacancies. It is not often that
there is no eligible candidate available from a community or group of
communities. To meet such a situation, r. 15(a) provides that if a suitable
candidate is not available for selection from any particular community or group
of communities specified in the annexure, the said community or group shall be
passed over and the post filled by a suitable candidate from the community .or
group of communities immediately next to the passed over communitY or group in
the order of rotation.
Rule 15(b) enjoins that if a suitable
candidate is not available for selection from the group of communities classified
as "Scheduled Castes", in the turn allotted for such a group in the
annexure, the said group shall be passed over and the post Shall be fired by a
suitable candidate from the group of communities classified as "Scheduled
Tribes" and vice-versa. If no suitable candidate for selection in any of
the two groups namely, Scheduled Castes and Scheduled Tribes is available, the
vacancy has to be filled by open competition. Rule 15(c) provides for
restoration of the benefit of the turn forfeited at the earliest opportunity.
Proviso thereto however enjoins that the restoration of the benefit of the turn
forfeited by the carry-forward rule, 137 shall not exceed 50% of the vacancies
to be filled in a particular year. Rule 16 provides for sub-rotation among
major groups of other backward classes. Rule 17(1) lays down the manner in
which appointments have to be made from candidates belonging to other backward
classes. Other backward classes are enumerated in List III to Part I of the
Rules and there are 73 communities or groups divided into 8 categories
specified in Rule 17(1). Categories 1 to 7 are Ezhavas and Thiyyas, Muslims,
Latin-Catholics and Angin-Indians, Nadars, Scheduled Castes converts to
Christianity, Viswakarmas and Dhooravas. All other backward classes put
together constitute the 8th category. Rule 17(2) provides for subrotation among
the other backward classes. In the last recruitment made in the year 1978
appointments had been made upto 7th turn in the cycle of rotation.
The Committee of three senior most Judges
constituted by the Full Court interviewed the candidates and drew up a list of
fifteen candidates adjudged on an overall assessment of the merits. One of the
fifteen' candidates Ms. Mary Teresa Dias belonging to the Latin Catholic
community, however, was considered unsuitable for appointment by the Committee
by a majority of 2:1. On an approval of the revised panel of fourteen
candidates by the Full Court by a majority at a meeting held on 12.6.1984, the
said list was sent to the Chief Minister. As there was no candidate belonging
to the 'Latin-Catholics and Anglo-Indians', 'Other Backward Classes and
'Scheduled Castes and Scheduled Tribes', 8th, th and 12th in the cycle of
rotation, the first vacancy had be filled by reason of rule 15(a) of the Rules
by a suitable candidate belonging to the community or group of communities
immediately next to the passed over community or group i.e.
by respondent No. 1 Smt. A. Lakshmikutty, a
member of the 'Ezhava' community, 6th in order of merit, failing in the group
'Ezhavas', Thiyyas and Billavas', 14th in the cycle of rotation. The second
vacancy i.e. 9th in the cycle rotation had to be filled by respondent No. 3,
Krishnan Nair, 1st in order of merit, by open competition. The third vacancy
had to go to 'other Backward Classes', 10th in the cycle of rotation. As there
was no 'other Backward Classes' candidate belonging to the 'Scheduled Castes
and Scheduled Tribes', 10th and 12th in the cycle of rotation, it had to be
filled by a Muslim candidate C. Khalid, respondent No. 4 who was 5th in order
of merit and 16th in the cycle of rotation. The fourth vacancy had to be filled
by a candidate on the basis of open competition i.e. by respondent No. 5
Achuthan Unni, 2nd in order of merit and 11th in the cycle of rotation. The
fifth vacancy was to be filled by respondent No. 6 Rajappan Asari, a
Viswakarma, 4th in order of merit and 2Oth in the cycle of rotation.
138 Shortly thereafter, on June 27, 1984, Ms.
Mary Teresa Dias filed a petition under Article 226 of the Constitution for
grant of a writ of mandamus claiming her right to the first vacancy being a
candidate belonging to the LatinCatholic and Anglo-Indian community with a
direction to the State Government not to fill up any of the five vacancies in
the post of District Judges without inclusion of her name in the panel and a
further direction to the High Court to forward her name for appointment as a
District Judge. The said writ petition was however dismissed later on.
Subsequently pursuant to a news item
appearing on 31.1.1985 in several malayalm newspapers to the effect that the
cabinet as its meeting held on 30. I. 1985 had decided to appoint only four out
of the said five candidates leaving A. Lakshmikutty sixth in order of merit
belonging to the Ezhava community as one post was to be kept vacant for a candidate
belonging to the group of Latin-Catholic AngloIndian community, Respondent No.
1 Smt. Lakshmikutty moved the High Court by a petition under Article 226 of the
Constitution for grant of an appropriate writ, direction or order to quash the
decision of the Council of Ministers dated January 30, 1985 deciding not to
appoint her as per the panel sent up by the High Court. Her application for
grant of an ad-interim prohibitory order to restrain the State Government from
appointing only Respondents 3 to 6 as District Judges as per the Cabinet
decision was ordered by a learned Single Judge on a prima facie case being made
out.
The State Government having been restrained
from making the appointments for a period of one month. i.e. till March 20, 1985, the matter of direct recruitment of District Judges from the bar again
came up before a meeting of the Council of Ministers held on February 28, 1985. The Government reconsidered the whole question of direct recruitment of District
Judges from the bar afresh and decided not to appoint anybody from the panel of
names recommended by the High Court due to non-representation of
'Latin-Catholics and Anglo Indians' 'Other Backward Classes' and 'Scheduled
Castes and Scheduled Tribes', 8th, 10th, and 12th turns in the cycle of
rotation, However, the Kerala High Court allowed the writ petition filed by
Respondent A. Lakshmikutty by its judgment and order dated 29.4.1985, quashed
the Cabinet decisions of 30.1.1985 and 28.2.1985 and issued a writ in the
nature of mandamus directing the respondentsState to fill up five vacancies in
the posts of District Judges meant for direct recruitment from the bar, by the
appointment of Respondents t and 3 to 6 as recommended by the High Court under
Article 233 (1) of the Constitution.
Hence the State appeals, by special leave.
139 Allowing the appeals and modifying the
order, the Court,
HELD: 1.1 The power of appointment of persons
to be District Judges conferred on the Governor, meaning the State Government,
under Art. 233(1) in consultation with the High Court is executive function.
The power of the State Government is not absolute and unfettered but is hedged
in with conditions. The exercise of the power of the Governor under Art. 233(1)
in the matter of appointment of District Judges is conditioned by consultation
with the exercise of the power that the power can only be exercised in
consultation with the High Court. Therefore, the eligibility of appointment of
persons to be District Judges by direct recruitment from amongst the members of
the bar depends entirely on the recommendation of the High Court. The State
Government has no power to appoint any person as a District Judge except from
the panel of names forwarded by the High Court. But, the consultation between
the Governor and the High Court in the matter of appointment of District Judges
under Article 233 (1) must not be an empty formality but real, full and
effective. [156H-I57E] Chandra Mohan v. State of U.P. & Ors., [1967] 1 SCR
77;
A Panduranga Rao v. State of Andhra Pradesh & Ors., [1967] 1 SCR 620; Mani Subrat Jain v. State of Haryana &
Ors., [1977] 2 SCR 361; M.M. Gupta & Ors. v. State of Jammu & Kashmir
& Ors., [1983] 1 SCR 593; Chandra mouleshwar Prasad v. Patna High Court
& Ors., [1970] 2 SCR 666; High Court of Punjab & Haryana etc. v. State
of Haryana, [1975] 3 SCR 368; and Union of India v. Sankalchand, Himatlal Sheth
& Anr., [1977] 4 SCC 193, referred to.
1.2. As well-settled the duty of the Governor
to consult the High Court in the matter of appointment of District Judges is so
integrated with the exercise of his power that the power can only be exercised
in the manner provided by Art. 233(1) or not at all. Normally, as a matter of
Rule, the recommendations of the High 'Court for the appointment of a District
Judge should be accepted by the State Government and the Governor should act on
the same. If, in any particular-Case, the State Government for 'good and
weighty reasons' finds it difficult to accept the recommendations of the High
Court, the State Government should communicate its views to the High Court and
must have complete and effective consultation with the High Court in the
matter. In the instant case, therefore, before rejecting one panel forwarded by
the High Court, the State Government should have conveyed its views to the High
Court to elicit its opinion.
[I66C-E] The fulfillment by the Governor of
his constitutional obligation to 140 place full facts before the High Court was
a pre-condition before the State Government could arrive at a decision not to
appoint respondents Nos. 1 and 3-6 as District Judges. On its part, there was a
constitutional obligation cast on the High Court under Art. 233(1) to express
its opinion on a consideration of the facts and circumstances on the basis of which
alone the nature of the problem could be appreciated and the right decision
taken. Therefore, the State Government was wrong in taking a unilateral
decision to cancel all steps taken in pursuance of the notification dated
September 24, 1983 and to issue a fresh notification inviting applications,
without taking the High Court 'into confidence. And the proper course for the
High Court to adopt was to have issued a writ in the nature of mandamus
requiring the State Government to place before the High Court the facts i.e.
the difficulties as expressed in the letter of the Chief Minister dated March 4, 1985 to elicit its opinion. [166G-167A]
1.3 The respective powers of the three wings
of the State are well-defined with the object that each wing must function
within the field earmarked for it. The objects of such demarcation is to
exclude the possibility of encroachment on the field earmarked for the wing by
the other or theirs. As long as each wing of the State functions within the
field carved out and shows due deference for the other two branches, there
would arise no difficulty in the working of the Constitution. But, when one
wing of the State tries to encroach on the field reserved for the other,
special responsibility devolves upon the Judges to avoid an over activist
approach and to ensure that they do not trespass within the spheres earmarked
for the other two branches of the State. Therefore, the High Court could not
intervene at a stage where the Council of Ministers had reviewed the situation
and decided to reject the panel sent by the High Court and not to appoint any
of the five advocates to be District Judges except by issuing a writ in the
nature of mandamus requiring the State Government to refer back the matter to
the High Court for reconsideration. [168F-169A].
2.1 It is well-settled that a writ of
mandamus is not a writ of course or a writ of right, but is, as a rule, discretionary.
There must be a judicially enforceable right for the enforcement of which a
mandamus will lie. The legal right to enforce the performance of a duty must be
in the applicant himself. In general, therefore, the Court will only enforce
the performance of statutory duties by public bodies on application of a person
who can show that he has himself a legal right to insist on such performance.
[165C]
2.2 The issuance of a writ of mandamus by the
High Court direct141 lag the State Government i.e. the Governor to act on the
recommendation of the High Court to fill up the five vacancies in the posts of
District Judges meant for direct recruitment from the members of the bar under
Art. 233(1) was constitutionally impermissible. Although the High Court was not
oblivious that the 'advice' of the Council of Ministers to reject the panel of
fourteen names submitted by the High Court could not be subject to judicial
review and that Art.
163(1) of the Constitution, precludes an
inquiry as to the nature of the advice given by the Council of Ministers to the
Governor, still it has issued a writ in the nature of mandamus upon the basis
that it is called upon to adjudge the legality and propriety of the two
decisions taken by the State Government through the instrumentality of the
Council of Ministers. By doing so, the High Court has virtually tendered an advice
to the Governor to act on the recommendation of the High Court i.e. contrary to
the advice of the Council of Ministers and thereby entered into the process of
decision making which as constitutionally impermissible. The Governor has to
act on the advice of the Council of Ministers under Art. 163(1) in the matter
of appointment of District Judges under Art. 233(i) and not on the advice of
the High Court. Appointment of persons to be, and posting and promotion of,
District Judges by the Governor under Art.
233(1) is purely an executive function The
High Court therefore had no authority or jurisdiction to issue any writ of
mandamus of the kind complained of. It was certainly not open to the High Court
to embark Upon an inquiry as to the reasons which impelled the Council of
Ministers at the meeting held on February, 28, 1985 to review the decision taken on January 30, 1985 and decide not to appoint anyone as a District Judge
under Art. 233(1) from the panel of names drawn up by the High Court. It was also
not justified in observing that the reasons as disclosed by the Chief Minister
in his letter dated March 4, 1985 on the basis of which the Council of
Ministers on February 28, 1985, decided not to appoint respondents Nos. 1 and
3-6 as District Judges on the recommendation of the High Court namely due to
non-representation of certain important communities or groups of communities,
were no reasons at all and in any event, the reasons given were bad in law.
There is no basis for the ridding reached by the High Court. [167B-D, 164E-G]
3. Normally, the principle of passing over
laid down in Rule 15(a) of the Kerala State and Subordinate Service Rules, 1958
is an integral part of the process of appointment and therefore the Government
being the appointment authority would have the right to take a decision in the
matter. But the Government failed to appreciate that the High Court plays a
decisive rule in the matter of appointment of District Judges under Art.
233(1). Adjudging suitability of a candidate for appointment 142 as a District
Judge under Art. 233(1) is a function of the High Court which must necessarily
imply that if the High Court finds that the candidate belonging to a particular
community or group is not suitable for appointment, it has to find a candidate
from the community or group next following in the cycle of rotation. It must
logically follow, as a necessary consequence that it is for the High Court to
decide whether or not a particular community or group should be passed over
under r. 15(a) of the Rules for want of a suitable candidate and the vacancy be
filled up from the community or group immediately next to the passed over
community or group in the order of rotation or sub-rotation provided in rule
14(c). All that the State Government could do was to convey to the High Court
the difficulties faced by the Government in implementing the recommendations.
It must accordingly be held that the State Government wrongly assumed to itself
the power to decide the question whether the principle of passing over laid
down in r. 15(a) of the Rules should be resorted to or not. [169F-170B]
4. Whatever the Council of Ministers may say
in regard to a particular matter, does not become the action of the State
Government till the-advice of the Council of Ministers is accepted or deemed to
be accepted by the Head of the State. Before an advice of the Council of
Ministers amounts to an order of the State Government, there are two requirements
to be fulfilled, namely; (1) The order of the State Government had to be
expressed in the name of the Governor as required by Art. 166(1) and (2) It has
to be communicated to the persons concerned. It must therefore follow' that
unless and until the decision taken by the Council of Ministers on January 30,
1985 was translated into action by the issue of a notification expressed in the
name of the Governor as required by Art. 166(1), it could not be said to be an
order of the State Government. Until then, the earlier decision of the Council
of Ministers was only a tentative one and it was therefore fully competent for
the High Court to reconsider the matter and come to a fresh decision.
[170E-G] State of Punjab v. Sodhi Sukhdev
Singh, [1961] 2 SCR 371; and Bachhittar Singh v. State of Punjab, [1962] Suppl
SCR 713, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos.
422427 of 1985.
From the Judgment and Order dated 29.4.1985
of the Kerala High Court in O.P. Nos. 905, 2732, 2781 and 3243 of 1985.
143 G. Viswanatha Iyer and Mrs. Baby Krishnan
for the Appellant.
T.S. Krishnamoorthi, P. Subramonian Poti, T.
Sridharan, A.S. Nambiar, PParameshwarn, Mrs. Santa Vasudevan, E.M.S. Anam, T.L.
Viswanatha Iyer, S. Balakrishnan and Ramesh N. Keswani for the Respondents.
The Judgment of the Court was delivered by
SEN, J. These appeals by special leave are directed against the judgment and
order of the Kerala High Court dated April 29, 1985 quashing the Cabinet
decisions of January 30, 1985 and February 28, 1985 and issuing a writ in the
nature of mandamus directing the respondents to fill up five vacancies in the
posts of District Judges meant for direct recruitment from the bar, by the
appointment of respondents Nos. 1 and 3 to 6 as recommended by the High Court
under Art. 233(1) of the Constitution. The issue involved is whether the
issuance of a writ of mandamus by the High Court directing the Governor to act
on the recommendation of the High Court to fill up the five vacancies in the
posts of DiStrict Judges reserved for direct recruitment from the practising
members of the bar under Art. 233(1) of the Constitution was constitutionally
impermissible.
By the judgment, a Division Bench of the High
Court has held that although it was not oblivious that the 'advice' of the
Council of Ministers to reject the panel of fourteen names forwarded by the
High Court could not. be subject to judicial review and that Art. 163(3) of the
Constitution precludes an inquiry as to the nature of the advice given by the
Council of Ministers to the Governor, still it had the power to issue a writ in
the nature of mandamus upon the basis that it was called upon to adjudge the
legality and propriety of the decisions reached by the State Government through
the instrumentality of the Council of Ministers. It was of the view that the reasons
given on the basis of which the Council of Ministers on February 28, 1985
purported to review their earlier decision dated January 30, 1985 and decided
not to appoint respondents Nos. 1 and 3 to 6 as District Judges on the
recommendation of the High Court due to the non-representation of candidates
belonging to the 'Latin-Catholics and Anglo-Indians', 'Other Backward Classes'
and 'Scheduled Castes and Scheduled Tribes', 8th, 10th and 12th in the cycle of
rotation as provided in r. 14(c) of the Kerala State & Subordinate Services
Rules, 1958, were no reasons at all and the action of the State Government in
rejecting the panel sent by the High Court was arbitrary, illegal and improper.
144 The facts. At the instance of the High
Court, the State Government issued a notification on September 24, 1983
inviting applications from eligible members of the bar to fill up three
vacancies in the cadre of District Judges by direct recruitment from the bar.
The notification stated that the number of candidates proposed to be selected
were three, subject to variation according to the exigencies.
Later, the number of vacancies was increased
to five. There were a large number of candidates from the bar and the
applications were forwarded by the State Government to the High Court with
request to make its recommendations. The Full Court at a meeting held on March
15, 1984 constituted of Committee of three senior most Judges to prepare a
panel of names. The Committee interviewed the candidates and drew up a list of
fifteen candidates adjudged as eligible on an overall assessment of the merits.
One of the fifteen candidates was Ms. Mary Teresa Dias, District Government
Pleader and Public Prosecutor of Ernakulam belonging to the LatinCatholic
community. It however appears that the Committee by a majority of 2:1 felt that
she was not suitable for appointment as a District Judge and accordingly
deleted her name from the list of eligible candidates and drew up a panel of
the remaining fourteen names. The panel of fourteen names submitted by the
Committee was approved of by the Full Court by a majority at a meeting held on
June 12, 1984.
On June 14, 1984, the Actg. Chief Justice
sent up to the Chief Minister the panel of fourteen names as settled by the
High Court for appointment as District Judges from the bar.
It was stated that the appointments had to be
made according to the cycle of rotation governing reservation of posts as laid
down in r. 14(c) of the Kerala State & Subordinate Services Rule, 1958, as
required by r. 2(b) of the Kerala State Higher Judicial Service Rules, 1961.
Accordingly, the appointments had to start with the first vacancy going to a
candidate belonging to the 'Latin-Catholics and Anglo-Indians' community, 8th
turn in the cycle of rotation. As there was no candidate belonging to the
'Latin-Catholics and Anglo-Indians'. 'Other Backward Classes' and 'Scheduled
Castes and Scheduled Tribes', 8th, th and 12th in the cycle of rotation, the
first vacancy had to be filled by reason of r. 15(a) of the Rules by a suitable
candidate belonging to the community or group of communities immediately next
to the passed over community or group i.e. by respondent No. 1 Smt. A.
Lakshmikutty, a member of the 'Ezhava' community, 6th in order of merit,
falling in the group 'Ezhavas, Thiyyas and Billavas'. 14th in the cycle of
rotation. The second vacancy i.e. 9th in the cycle of rotation had to be filled
by respondent No. 3, Krishnan Nair, 1st in order of merit, by open corn145
petition. The third vacancy had to go to 'Other Backward Classes', th in the
cycle of rotation. As there was no 'Other Backward Classes' candidates nor any
candidate belonging to the 'Scheduled Castes and Scheduled Tribes', 10 th and
12th in the cycle of rotation, it had to be filled by a Muslim candidate C.
Khalid, respondent NO. 4 who was 5th in order of merit and 16th in the cycle of
rotation. The fourth vacancy had to be filled by a candidate on the basis of
open competition i.e. by respondent No. 5 Achuthan Unni, 2nd in order of merit
and 11th in the cycle of rotation. The fifth vacancy was to be filled by
respondent No. 6 Rajappan Asari, a Viswakarma, 4th in order of merit and 20th
in the cycle of rotation.
Shortly thereafter on June 27, 1984 Ms. Mary
Teresa Dias, the candidate belonging to the Latin-Catholic community moved the
High Court by a petition under Art. 226 of the Constitution for grant of writs
in the nature of mandamus directing the State Government to forbear from
filling up any of the five vacancies in the post of District Judges without
inclusion of her name in the panel and for directing the High Court to forward
her name for appointment as a District Judge.
On January 31, 1985 a news item appeared in
the Mathrubhoomy, and other Malyalam newspapers in the State to the effect that
at a press conference held on that day the Chief Minister' briefed the press of
a Cabinet meeting of the earlier day i.e. on January 30, 1985. It went on to
say that the Government had decided to fill up four posts of District Judges
from the panel of names recommended by the High Court and to keep one post
vacant since there was a writ petition pending in the High Court. It was said
that the fifth vacancy would also be filled after the decision of the High
Court. Further, the news item in Mathrubhoomy was to the effect that the
Government had decided to appoint respondents Nos. 3 to 6 Krishnan Nair, C.
Khalid, E. Achuthan Unhi and G. Rajappan Asari as District Judges from the bar
on the recommendation to the High Court. There was some. controversy as to the
meaning of some Malayalam words in the news item. According to learned counsel
for the appellant the words meant 'it was proposed to appoint' while learned
counsel for the respondents asserted that the meaning should be 'it was decided
to appoint'. The State Government had therefore decided not to appoint
respondent No. 1 Smt. A.
Lakshmikutty belonging to the Ezhava
community, 14th in the cycle of rotation, and one post was to be kept vacant
presumably for a candidate belonging to the group 'Latin-Catholics and
Anglo-Indians', 8th in the cycle of rotation.
146 On the next day i.e. on February 1, 1985,
respondent No.
1 Smt. A. Lakshmikutty moved the High Court
by a petition under Art. 226 of the Constitution for grant of an appropriate
writ, direction or order to quash the decision of the Council of Ministers
dated January 30, 1985 deciding not to appoint her as a District Judge as per
the panel sent up by the High Court. She by an application also prayed for
grant of an ad-interim prohibitory order to restrain the State Government from
appointing respondents Nos. 3 to 6 as District Judges. The stay application was
heard by a Single Judge for two days, on February 13 and 20, 1985. At the
hearing on February 13, the learned Advocate-General stated that the Governor
had not issued any order of appointment in favour of respondent Nos. 3 to 6 and
gave an undertaking on behalf of the State Government that no such appointments
would be made for a period of seven days. At the heating on February 20, the
learned Advocate-General submitted that the period of seven days as indicated
by him had expired and there was no longer any further commitment on the part
of the State Government not to make' the appointments. He further stated at the
bar that the news item that one post was kept vacant on account of the Writ
Petition filed by the Latin-Catholic candidate Ms. Mary Teresa Dias was conect.
He also revealed that the relevant records were lying with the Governor and
could be made available only after getting the same from him.
The learned Single Judge by his order dated
February 21, 1985 held that prima facie the Cabinet decision of January 30,
1985 deciding to leave out respondent No.1 Smt. A.
Lakshmikutty, a candidate belonging to the
Ezhava community falling in the group 'Ezhava, Thiyyas and Billavas', 14th in
the cycle of rotation, was invalid and unless she was found to be unfit for
appointment as a District Judge, the first vacancy could not be offered to any
person. The relevant portion of the order reads:
"Prima facie, the decision appears to be
contrary to rules 14 to 17 of the Kerala State & Subordinate Service Rules.
First among the five vacancies, according to
the records placed before me should go to a candidate belonging to Latin
Catholic and Anglo Indian community, item 8 in the cycle of rotation. In the
absence of such a candidate, the vacancy should go to a candidate in item 10 in
the cycle of rotation. The penal does not contain names of any candidates who
come within 8th, th or the 12th items in the cycle of rotation. Therefore,
first vacancy should go to a candidate, failing in the 14th item in the cycle,
namely, Ezhava." 147 Upon that view, the learned Single Judge issued a
prohibitory order restraining the State Government from making any appointment
of respondents Nos. 3 to 6 or any other candidate as District Judges for a
period of one month.
The State Government having been restrained
from making the appointments for a period of one month i.e. till March 20,
1985, the matter of direct recruitment of District Judges from the bar again
came up before a meeting of the Council of Ministers held on February 28, 1985.
The Government reconsidered the whole question of direct recruitment of
District Judges from the bar afresh and decided not to appoint anybody from the
panel of names recommended by the High Court due to non-representation of
'Latin-Catholics and Anglo-Indians' 'Other Backward Classes' and 'Scheduled
Castes and Scheduled Tribes', 8th, 10th, 12th' turns in the cycle of rotation.
Accordingly, the Chief Minister addressed a letter on March 4, 1985 to the
Acting Chief Justice, the material portion of which reads as follows:
"My dear Chief Justice, Sub: Direct
recruitment of District Judges from the Bar.
Please refer to your letter No. R3/84(SS)
dated 14.6. 1984 forwarding a panel of 14 candidates considered suitable by the
High Court for appointment as District Judges direct from the Bar. You are
aware that some O.Ps have been filed in the High Court in connection with the
selection and appointment of the District Judges.
In that context, Government have reviewed the
entire issue of appointment to the five vacancies of District Judges from the
bar. The avowed policy of the Government is to give adequate representation to
candidates belonging to Scheduled Castes, Scheduled Tribes, Latin Catholics/Anglo
Indians and Other Backward Communities as far as possible. Unfortunately we
cannot implement this policy if appointment is made from the panel now prepared
as it contains no candidates from these groups. As the vacancies that will
occur for direct recruitment in the cadre of District Judges will be only few,
the passing over of the communities cannot be made good in the near 148 future.
Consequently, the usual procedure of passing over communities unrepresented in
the merit list will cause neglect of very backward communities for a long time.
There have been many writs filed questioning
the selections.
Having due consideration to the above facts,
Government have decided to cancel all steps taken so far on the basis of
applications received in response to notification dated 24th September, 1983,
and to invite fresh applications and to do recruitment of District Judges from
the Bar on the basis of such fresh applications." The State Government in
the return filed before the High Court questioned the authority and
jurisdiction of the High Court to issue a writ of mandamus requiring the
Governor to act contrary to the decision. of the Council of Ministers taken on
February 28, 1985 and to appoint respondents Nos. 1 and 3 to 6 to be District
Judges under Art. 233(1) of the Constitution from amongst the members of the
bar as per its recommendations. It was pleaded inter alia that the power of
appointment of District Judges under Art. 233(1) is an executive function and
the Governor is bound to act on the advice of the Council of Ministers under
Art. 163(1). It was also pleaded that it was not open to the High-Court to
scrutinise the reasons which impelled the Council of Ministers to review its
earlier decision taken on January 30, 1985 and decide in the subsequent meeting
held on February 28, 1985 not to appoint anyone as a District Judge under Art.
233(1) from the panel of names submitted by the High Court.
It was averred that there were good and
weighty reasons why the State Government were constrained to review their
earlier decision. The State Government was faced with a serious problem in that
there would be non-representation of 'Latin-Catholics and Anglo-Indians',
'Other Backward Classes' and 'Scheduled Castes and Scheduled Tribes' if the
appointments were to be made according to the panel submitted by the High
Court. It was asserted that the Government viewed with concern the proceedings
before the High Court and felt that there should be no room for such challenge.
The Government therefore decided to reject
the panel of names forwarded by the High Court by cancelling the aforesaid
notification and all the steps taken pursuant thereto.
It was further decided to issue a fresh
notification inviting applications from the members of the bar for appointment
as 149 District Judges for being placed before the High Court to prepare a
fresh panel of names. In essence, the contention is that the State Government
has the final voice in the appointment of District Judges under Art. 233(1) and
it was therefore for the Council of Ministers to take the decision not to
appoint anyone from the panel of names submitted by the High Court which was a
decision taken in the larger public interest. The material portion of the
return in the form of a counter-affidavit by the Commissioner and Secretary to
the State Government, Home Department reads as follows:
"The Government reviewed their
recommendation on 28.2.1985 and decided not to appoint anybody as recommended
earlier, and further decided to invite fresh applications for being placed
before the High Court to prepare a fresh panel for recruitment to the post of
District Judges. The non-representation of Scheduled Castes, Latin-Catholics,
AngloIndians and Other Backward Communities in the panel of names submitted by
the High Court weighed with the Government in taking the above decision.
Further it is not healthy to give room for such challenges as those made before
this Hon'ble Court on the panel by interested parties. Hence the decision was
taken reviewing the earlier recommendation. Fresh applications will be invited
and the High Court will be requested to recommend fresh panel for recruitment
to the post of District Judges." In order to appreciate the.contentions
advanced, it is necessary to mention that r. 2(b) of the Kerala S,ate Higher
Judicial Service Rules, 1961 framed under the proviso to Art. 309 of the
Constitution provides that one-third of the permanent places of District Judges
shall be filled or reserved to be filled by direct recruitment from the bar.
Note beneath r. 2(b) enjoins that in the case
of appointment by direct recruitment, the appointment shall be made in
accordance with the principles of reservation of posts, embodied in rr. 14 to
17 of part II of the Kerala State & Subordinate Services Rules, 1958.
For the sake of completeness, we would also
refer to the scheme of communal reservation by a system of rotation or
sub-rotation engrafted in rr. 14 to 17 of the Kerala State & Subordinate
Services Rules, 1958. These are special provisions made by the State under Art.
14 read with Art. 16(4) of the Constitution for the reservation of appointments
or posts in favour of.the backward classes which, in the opinion of the State,
are not adequately represented in the services 150 under the State. These rules
are meant to ensure fair representation to the Higher judicial service of the
State, to the members of the Scheduled Castes and Scheduled Tribes and to the
Other Backward Classes. R. 14 insofar as material, reads:
"14. Reservation of appointments: Where
the special rules lay down that the principle of reservation of appointments
shall apply to any service, class or category or where in the case of any
service, class or category for which no special rules have been issued, the
Government have by notification in the Gazette declared that the principle of
reservation of appointments shall apply to such service, class or category,
appointments by direct recruitment to such service, class or category shall be
made on the following basis:-(a) The unit of appointment for the purpose of
this rule shall be 20, of which two shall be reserved for Scheduled Castes and
Scheduled Tribes and 8 shall be reserved for the Other Backward Classes and the
remaining 10 shall be filled on the basis of merit.
(b) The claims of members of Scheduled Castes
and Scheduled Tribes and Other Backward Classes shall also be considered for
the appointments which shall be filled on the basis of merit and where a
candidate belonging to a Scheduled Caste, Scheduled Tribe or Other Backward
Class is selected on, the basis of merits, the number of posts reserved for
Scheduled Castes, Scheduled Tribes or for Other Backward Classes as the case
may be, shall not in any way be affected.
(c) Appointments under this rule shall be
made in the order or rotation specified below in every cycle of 20 vacancies.
1. Open competition.
2. Ezhavas, Thiyyas and Billavas.
3. Open competition.
4. Scheduled Castes.
5. Open competition.
151 6. Muslims.
7. Open competition.
8. Latin-Catholics and Anglo-Indians.
9. Open competition.
10. Other Backward Classes.
11. Open competition.
12. Scheduled Castes.
13. Open competition.
14. Ezhavas, Thiyyas and Billaras.
15. Open competition.
16. Muslims.
17. Open competition.
18. EZhavas, Thiyyas and Billavas.
19. Open competition.
20. Viswakarmas." Under r. 14(a) there
is 50% reservation of posts for the backward classes under Art. 16(4) i.e. for
the Scheduled Castes and Scheduled Tribes and Other Backward Classes.
Whichever be the method adopted for selecting
candidates as per the rules of rotation under r. 14(c) or sub-rotation under r.
17(2), the mandate of r. 14(b) is clear and specific. The members of Scheduled
Castes and Scheduled Tribes and Other Backward Classes have the right to be
considered for appointments which shall be filled on the basis of merit.
Where a candidate belonging to such Backward
Classes is selected on the basis of merits, such selection would not prejudice
their claim to the legitimate quota on the basis of reservation.
It is not often that there is no eligible
candidate available from a community or group of communities. To meet such a
situation, r. 15(a) provides that if a suitable candidate is not available for
selection from any particular community or group of communities specified in
the annexure, the said community or group shall be passed over and the post
filled by a suitable candidate from the community or group of communities
immediately next to the passed over community or group in the order of
rotation. R. 15(b) enjoins that if a suitable candidate is 152 not available
for selection from the group of communities classified as 'Scheduled Castes',
in the turn allotted for such a group in the annexure, the said group shall be
passed over and the post shall be filled by a suitable candidate from the group
of communities classified as 'Scheduled Tribes' and vice-versa. If no suitable
candidate for selection in any of the two groups viz. Scheduled Castes and
Scheduled Tribes is available, the vacancy has to be filled by open
competition. R. 15(c) provides for restoration of the benefit of the turn
forfeited at the earliest opportunity. Proviso thereto however enjoins that the
restoration of the benefit of the turn forfeited by the carry-forward rule,
shall not exceed 50% of the vacancies to be filled in a particular year. R. 16
provides for sub-rotation among major groups of other backward classes. R. 17(1)
lays down the manner in which appointments have to be made from candidates
belonging to other backward classes. Other backward classes are enumerated in
List III to Part I of the Rules and there are 73 communities or groups divided
into 8 categories specified in r. 17(1). Categories 1 to 7 are Ezhavas and
Thiyyas, Muslims, Latin-Catholics and Anglo-Indians, Nadars, Scheduled Castes
converts to Christianity, Viswakarmas and Dhooravas. All other backward classes
put together constitute the 8th category. R. 17(2) provides for sub-rotation
among the other backward classes. We need not go into details of the 40 turns
in which the positions reserved for other backward classes have to be
distributed.
It is common ground that the five vacancies
to be filled in this case had to start with the 8th turn in the cycle of
rotation, in the following order: (1) Latin-Catholics and Anglo-Indians (2)
Open competition (3) Other backward classes i.e. other than those mentioned in
items 1 to 7 of r.
17'(1)(4) Open competition, and (5) Scheduled
Castes and Scheduled Tribes, appropriate to 8th, 10th and 12th tums in the
cycle of rotation. That is because in the previous recruitment made in the year
1978, appointments had been made upto the 7th turn in the cycle of rotation.
In allowing the writ petitions the learned
Judges held that although they could not subject the deliberations of the
Council of Ministers to judicial review and Art. 163(3) of the Constitution
precludes an inquiry as to the nature of the advice given by the Council of
Ministers to the Governor, still there was need for affirmative action by the
issue of a writ in the nature of mandamus or in the words of the High Court,
there has been 'flagrant and wrongful refusal' on the part of the State Government
to exercise jurisdiction. It held relying on the celebrated decision in
Padfield v. Minister of Agriculture, Fisheries and 153 Food, LR [1968] AC 997
and the several decisions of this Court and the House of Lords that although
the Governor i.e.
the State Government was not bound to accept
the recommendations of the High Court nor was he bound to give reasons for-not
accepting the names recommended by the High Court, nevertheless the Council of
Ministers could not unilaterally reject the panel submitted by the High Court
without obtaining the views of the High Court. Consultation with the High Court
was not an empty formality. It held that there was no full and effective
consultation with the High Court before the State Government decided not to appoint
anybody as a District Judge from the panel forwarded by the High Court under
Art. 233(1). The reasons given by the Chief Minister for rejection of the panel
of names recommended by the High Court viz. non-representation of
Latin-Catholics and AngloIndians, Scheduled Castes and Scheduled Tribes and
Other Backward Classes were'no reasons at all' and in any event the reasons
were bad in law. It held that a process of recruitment cannot be abandoned nor
a rank list cancelled merely because the Government felt that a suitable
candidate was not available. The State Government as the appointment authority
was as such bound by r. 15(a) which incorporated the rule of passing over like
any other rules. Abandonment of a scheme of recruitment and the cancellation of
the panel submitted by the High Court is therefore foreign to and not
contemplated by the scheme if a suitable candidate is not available from a
particular community or group of communities. R. 15(a) merely contemplates that
such community or group of communities should be passed over and the vacancy
filled by a suitable candidate from the group or a community immediately next
following. The High Court also adverted to the scheme of restoration which
contemplated the restoration of the turn forfeited. It then went on to say that
the State Government had no power to keep one vacancy open presumably to fill
up that post by a suitable candidate from the group of LatinCatholics and
Anglo-Indians. The governmental action was wholly mala fide, arbitrary and
irrational. If it had no power to keep one post vacant for a particular
community, the Government could not decide' to appoint respondents Nos.
3-6 as District Judges as recommended by the
High Court. The Government refused to appoint respondent no. 1 on the pretext
that it had decided to keep one post vacant i.e. 8th turn in the cycle of
rotation. If that be so, it could not have decided to appoint respondents nos.
4 and 6, Muslim and Viswakarma, 16th and 20th turns in the cycle of rotation.
The first decision of the Council of
Ministers taken on January 30, 1985 was therefore influenced by extraneous
considerations which it ought not to have taken into account and therefore it
was liable to be struck down. The subsequent decision ' 154 of the Council of
Ministers taken on February 28, 1985 was also guided by considerations which
were wholly extraneous and irrelevant. The High Court observed that by deciding
not to appoint anybody as a District Judge from the panel of names recommended
by the High Court under Art. 233 (1) of the Constitution, there was an overt
attempt on the part of the Government to appoint persons from outside the panel
which was constitutionally impermissible.
A few more facts. On April 29, 1985 i.e. the
day on which the writ petitions of the present respondents were allowed by the
common judgment under appeal, the High Court by a separate judgment dismissed
the writ petition filed by Ms. Mary Teresa Dias, the LatinCatholic candidate,
on the ground inter-alia that she was 'ineligible for selection' as a District
Judge in view of the criterion laid down in r.
3(2)(c) of the Kerala State Higher Judicial
Service Rules, 1961. On the same day i.e. on April 29, 1985 the learned Judges
also rejected the appeal of Smt. N. Subhadra Aroma and the writ petition of K.
Sadanandan. Smt. N. Subhadra Amma claimed that by reason of her marriage to a
scheduled caste, she should have been regarded as such and considered to fill
up the post reserved for scheduled caste candidates.
In his writ petition K. Sadanandan, a
scheduled caste candidate, questioned the method of selection adopted by the
High Court by interview. Both Smt. N. Subhadra Amma and K. Sadanandan preferred
appeals to this Court by special leave. In N. Subhadra Arama v. State of Kerala
& Ors., (C. A. No. 4 163/85 decided on September 10, 1985) this Court
allowed the appeal of N. Subhadra Amma, set aside the judgment of the High
Court and directed the High Court to determine whether she belonged to a
scheduled caste or not, and in case she happened to be a scheduled caste, her
claim for appointment to the post reserved for scheduled caste candidates be
considered. Similarly, in K. Sadanandan v. State of Kerala & Ors., (C.A.
No. 5693/85 decided on December 17, 1985) this Court allowed the appeal of K.
Sadanandan set aside the judgment of the High Court and directed that his claim
for selection against the reserved post for scheduled caste candidates be
considered afresh. The directions issued by this Court in N. Subhadra Amma's
and K. Sadanandan's cases directing the High Court to consider their names for
appointment to the post reserved for members of the scheduled castes must
necessarily disturb the panel drawn up by the High Court. In view of the
directions issued by this Court which have to be obeyed by the High Court, the
entire question has to be considered afresh in the light of the subsequent
developments.
155 Various contentions have been advanced by
learned counsel for the parties but on the view that we take it is not necessary
to deal with them all. We are grateful to the learned counsel for placing with
great perspicuity, much learning and resource their respective points of view.
They have mainly referred to the four decisions in Chandra Mohan v. State of
U.P. & Ors., [1967] 1 SCR 77,. A. Panduranga Rao v. State of Andhra Pradesh
& Ors., [1976] 1 SCR 620, Mani Subrat Jain v. State of Haryana & Ors.,
[1977] 2 SCR 361 and M.M. Gupta & Ors. v. State of Jammu & Kashmir
& Ors., [1983] 1 SCR 593.
After the conclusion of the heating, the
State Government on our request placed a copy of the letter of the Acting Chief
Justice dated June 14, 1984 addressed to the Chief Minister, which was not on
record. In the letter he stated that he was enclosing a panel of 14 names
considered suitable by the High Court for appointment of District Judges direct
from the bar. In para 7 thereof, he explained the basis on which the panel of
names was prepared, namely:
"In the panel of names enclosed, there
is no candidate from.
the 'Latin-Catholics and Anglo-Indians' group
and so the first vacancy will have to be allotted, under rule 15(a) of the
Kerala State and Subordinate Services Rules, 1958, to 'Other Backward Classes'
in the 10th cycle of rotation taking into account the Explanation to the
annexure. The panel includes two candidates belonging to 'Other Backward
Classes' namely, Shri Rajappan Asari who is a Viswakarma and Smt. K.J. Teresa
who is a Scheduled Caste convert. But these two communities are not included in
item 8 in rule 17(1) of the Rules. There is also no Scheduled Caste candidates.
Under rule 15, therefore, we have to go down
in the cycle of rotation and allot the vacancy to a candidate from the group
'Ezhavas, Thiyyas and Billavas'. The second vacancy has to be filled up on the
basis of 'Open Competition'. The third vacancy should go to 'Other Backward
Classes' as defined in the Explanation. As there is no O.B.C. candidate and no
Scheduled Caste candidate appropriate to the 12th rotation in the annexure, and
the Ezhava candidate appropriate to the 14th rotation is already approved for,
this third reserved vacancy has to be filled up from among 'Muslims' ( 16th
rotation)." In these appeals, three main questions arise for determination,
namely: (i) Whether the High Court'was justified in holding that the 156
Council of Ministers could not have at the subsequent meeting held on February
28, 1985 'reviewed' the situation and decided not to make the appointments
contrary to the earlier decision taken at the Cabinet meeting held on January
30, 1985 to make such appointments on the recommendation of the High Court.
(ii) Whether the High Court could have issue a writ or direction in the nature
of mandamus under Art. 226 directing the State Government, meaning the
Governor, to appoint respondents Nos. 1 and 3-6 as District Judges from the bar
under Art. 233(1) of the Constitution in accordance with the recommendation of
the High Court, and contrary to the decision of the Council of Ministers taken
on February 28, 1985 not to appoint anybody from the panel forwarded by the
High Court. (iii) If the High Court were of the view that there was no full and
effective consultation by the State Government with the High Court as enjoined
by Art.
233(1) of the Constitution and therefore the
Government could not have unilaterally rejected the panel of names recommended
by the High Court, whether the proper course for the High Court was to have
issued a writ or direction in the nature of mandamus requiring the State
Government to convey its views to the High Court as reflected in. the Chief
Minister's letter dated March 4, 1985 and, if necessary.
make a fresh effort to find suitable
candidates from the communities or groups of communities passed over.
The heart of the matter is that
'consultation' between the State Government and the High Court .in the matter
of appointment of District Judges under Art. 233(1) of the Constitution must be
real. full and effective. To make the consultation effective. there has to be
an inter-change of views between the High Court and the State Government. so
that any departure from the advice of 'the High Court would be explained to the
High Court by the State Government. If the State Government were simply to give
lip service to the principle of consultation and depart from the advice of the
High Court in making judicial appointments without referring back to the High
Court. the difficulties which prevent the Government from accepting its advice.
the consultation would not be effective and any appointment of a person as a
District Judge by direct recruitment from the bar or by promotion from the
judicial services under Art. 233(1) would be invalid. Unless. the State
Government were to convey to the High Court the difficulties which prevent the
Government from accepting its advice by referring back the matter the
consultation would not be effective.
Indubitably. the power of appointment of
persons to be District Judges conferred on the Governor. meaning the State
Government.
157 under Art. 233(1) in consultation with
the High Court is an executive function. It has been settled by a long line of
decisions of this Court starting from Chandra Mobart v.
State of U.P. & Ors., to M.M. Gupta &
Ors. etc. etc. v.
State of Jammu & Kashmir & Ors.,
(supra) that the power of the State Government is not absolute and unfettered
but is hedged in with conditions. The exercise of the power of the Governor
under Art. 233(1) in the matter of appointment of District Judges is
conditioned by consultation with the exercise of the power that the power can
only be exercised in consultation with the High Court.
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 under Art. 233(1) in consultation with the High Court exercising
jurisdiction in relation to such State. Sub-Art. (2) thereof provides that a
person not already in the service of the Union or of the State shall only be
eligible to be appointed as a District Judge if he has been for not less than seven
years an Advocate or a Pleader and is recommended by the High Court for appointment.
It is therefore obvious that eligibility of appointment of persons to be
District Judges by direct recruitment from amongst the members of the bar
depends entirely on the recommendation of the High Court. The State Government
has no power to appoint any person as a District Judge except from the panel of
names forwarded by the High Court. As stated, the decisions starting from
Chandra Mohan v. State of U.P. & Ors., (supra) has established the
principle as a rule of law, that consultation between the Governor and the High
Court in the matter of appointment of District Judges under Art. 233(1) must
not be empty formality but real, full and effective.
In Chandra Mohan v. State of U.P. & Ors.,
,(supra) Subba Rao CJ. speaking for a unanimous court observed:
"The exercise of the power of
appointment by the Governor is conditioned by his consultation with the High
Court. that is to say, he can only appoint a person to the post of District
Judge in consultation with the High Court. The object of consultation is
apparent.
The High Court is expected to know better
than the Governor in regard to the suitability or otherwise of a person.
belonging either to the "Judicial service" or to the Bar, to be
appointed as a District Judge. Therefore. a duty is enjoined on the Governor to
make the appointment in consultation with a body which is the appropriate
authority to give advice to him.
158 These provisions indicate that the duty
to consult is so integrated with the exercise of the power that the power can
be exercised only in consultation with the person or persons designated
therein." To the same effect are the decisions in Chandramouleshwar Prasad
v. Patna High Court & Ors., [1970] 2 SCR 666, High Court of Punjab &
Haryana etc. v. Sate of Haryana, [1975] 3 SCR 368, A. Panduranga Rao v. State
of Andhra Pradesh & Ors.
and M.M. Gupta & Ors. v. State of Jammu
& Kashmir & Ors., (supra).
In A. Panduranga Rao v. State of Andhra Pradesh
& Ors., (supra) it was observed:
"Government was not bound to accept all
the recommendations but could tell the High Court its reasons for not accepting
the High Court's recommendations in regard to certain persons.
If the High Court agreed with the reasons in
case of a particular person the recommendation in his case stood withdrawn and
there was no question of appointing him. Even if the High Court did not agree
the final authority was the Government in the matter of appointment and for
good reasons it could reject the High Court's recommendations. In either event
it could ask the High Court to make more recommendations in place of those who
have been rejected." In M.M. Gupta & Ors. v. State of Jammu &
Kashmir & Ors., (supra) Amarendra Nath Sen, J. speaking for himseft and
Bhagwati & Pathak, JJ. while dealing with the appointment of persons to be
District Judges by the Governor under Art.
233(1), viewed with concern the recent trend
of interference in the matter of judicial appointments by the Executive both at
the Centre and the State levels and expressed the view that healthy conventions
and proper norms should be evolved in the matter of these appointments for
safe-guarding the independence of the judiciary in conformity with the requirements
of the Constitution. We fully endorse the principle deduced by him from the .
various authorities of this Court in these words:
"Normally, as a matter of rule, the
recommendations made by the High Court for the appointment of a District Judge
should be accepted by the State Government and the Gover159 nor should act on
the same. If in any particular case, the State Government for good and weighty
reasons finds it difficult to accept the recommendations of the High Court, the
State Government should communicate its views to the High Court and the State
Government must have complete and effective consultation with the High Court in
the matter. There can be no doubt that if the High Court is convinced that
there are good and weighty reasons for the objections on the part of the State
Government, the High Court will undoubtedly reconsider the matter and the
recommendations made by the High Court." (Emphasis supplied) The
Constitution of India provides in Arts. 124(2), 217(1) and 233(1) dealing with appointment
of Judges from the Supreme Court downwards and Art. 222(1) dealing with
transfer of a Judge from one High Court to another for a very delicate process
of consultation between the executive and the judiciary. The word
'consultation' in Art. 233(1) must bear the same meaning as in these other
provisions. The plain meaning of the word 'consult' as given in Shorter Oxford
English Dictionary, Vol. 1 at p. 409 is: 'to take counsel together, deliberate,
confer, and the word 'consultation' means:'the action of consulting or taking
counsel together; deliberation, conference. The word 'consultation' therefore
implies a conference of two or more persons or an impact of two or more minds
in respect of a topic in order to enable them to evolve a correct, or at least,
a satisfactory solution. In the words of Subba Rao, CJ. R. Pushpam v.
State of Madras, AIR 1953 Mad. 392 cited by
Chandrachud, J.
in Shethi's case:
"In order that the two minds may be able
to confer and produce a mutual impact, it is essential that each must have for
its consideration full and identical facts, which can at once constitute both
the source and foundation of the final decision." The concept of
consultation in Art. 222(1) has been delineated by Chandrachud, J. in Union of
India v. Sankalchand Himatlal Sheth & Anr., [1977] 4 SCC 193, in his own
illuminating language:
"It casts an absolute obligation on the
President to consult the Chief Justice of India before transferring a Judge
from one High Court to another. The word 'may' in Article 160 222(1) qualifies
the last clause which refers to the transfer of a Judge and not the intervening
clause which refers to consultation with the Chief Justice of India. The
President may or may not transfer a Judge from one High Court to another. He is
not compelled to do so. But if he proposes to transfer a Judge. he must consult
the Chief Justice of India before transferring the Judge. That is in the nature
of a condition precedent to the actual transfer of the Judge. In other words,
the transfer of a High Court Judge to another High Court cannot become
effective unless the Chief Justice of India is consulted by the President in
behalf of the proposed transfer. Indeed, it is euphemistic to talk in terms of
effectiveness, because the transfer of a High Court Judge to another High Court
is unconstitutional unless, before transferring the Judge, the President
consults the Chief Justice of India.
*** *** *** *** *** (T)here can be no
purposeful consideration of a matter, in the absence of facts and circumstances
on the basis of which alone the nature of the problem involved can be
appreciated and the right decision taken. It must, therefore, follow that while
consulting the Chief Justice, the President must make the relevant data available
to him on the basis of which he can offer to the President the benefit of his
considered opinion. If the facts necessary to arrive at a proper conclusion are
not made available to the Chief Justice, he must ask for them because, in
casting on the President the obligation to consult the Chief Justice, the
Constitution at the same time must be taken to have imposed a duty on the Chief
Justice to express his opinion on nothing less than a full consideration of the
matter on which he is entitled to be consulted. The fulfilment by the
President, of his constitutional obligation to place full facts before the
Chief Justice and the performance by the latter, of the duty to elicit facts
which are necessary to arrive at a proper conclusion are parts of the same
process and are complementary to each other. The faithful observance of these
may well earn a handsome dividend useful to the administration of justice.
Consultation within the meaning of Article 222(1), therefore, means full and
effective, not formal or unproductive consultation.
161 ... Thus, deliberation is the
quintessence of consultation." (Emphasis supplied) The argument of Sri G.
Viswanatha Iyer, learned counsel appearing for the State Government is that the
High Court had no authority or jurisdiction to issue a writ of mandamus
ordaining the State Government, meaning the Governor, to appoint respondents
Nos. 1 and 3-6 as District Judges under Art. 233(1) in accordance with the
recommendation of the High Court, and contrary to the decision of the Council
of Ministers taken on February 28, 1985. He argues that the High Court exceeded
its jurisdiction in subjecting the process of decision-making by the Council of
Ministers to judicial review and questions the propriety of the observations made
by the High Court that the reasons furnished in the letter of the Chief
Minister dated March 4, 1985 were no reasons at all and that the governmental
action was totally arbitrary, irrational and improper. He next argues that the
appointment of District Judges by the Governor in consultation with the High
Court under Art. 233(1) is purely an executive function and that the Governor
is not bound to accept the advice of the High Court. In support of the
contention, reliance is placed on the decision of this Court in Mani Subrat
Jain v. State of Haryana & Ors., (supra). In any event, no writ of mandamus
lies in the case of nonselection to a post. According to the learned counsel,
it was open to the Government not to make any appointments at all from the panel
of names forwarded by the High Court if the Government was of the opinion that
the making of such appointments would result in non-representation of certain
backward communities or groups. It is said that while adjudging the suitability
of candidates was no doubt a function of the High Court but. at the same time,
the Government had the duty to ensure that the appointment of District Judges
from the bar under Art. 233(1) in accordance with the panel prepared by the
High Court, was in conformity with r.
2(b) of the Kerala State Higher Judicial
Service Rules i.e.
in consonance with the scheme of communal
reservation. In substance, the contention is that the scheme of communal
reservation as laid down in rr. 14 to 17 of the Rules does not compel the State
Government to pass over candidates belonging to a community or group of
communities by taking recourse to the principle of passing over in r. 15(a).
Finally, the learned counsel submits that if
it were to be held that there was no full and effective consultation with the
High Court and therefore the State Government could not have unilaterally
rejected the panel, the proper course for the High Court was to have issued a
writ in the nature of mandamus requiting the State Govern162 ment to communicate
its views to the High Court with a view to elicit its opinion and, if
necessary, make a fresh effort to find suitable candidates from the communities
or groups passed over before taking a final decision in the matter.
There is, in our opinion, sufficient force in
these submissions.
Arguments of Sri T.S.Krishnamoorthy Iyer,
learned counsel appearing for respondents nos. 3-6 were two-fold. His main
submission is that according to the decision of this Court in Shamsher Singh
& Anr. v. State of Punjab, [1975] 1 SCR 8 14 the Governor must act on the
advice of the Council of Ministers. According to him, there was no occasion for
the Council of Ministers to have reviewed the situation and decided not to
appoint anybody from the panel contrary to the decision taken on January 30,
1985, which was constitutionally impermissible. As the sequence of events would
show the immediate provocation for the subsequent decision of the Cabinet taken
on February 28, 1985 was the issue of an adinterim prohibitory order by the
High Court on February 21, 1985 .restraining the State Government from making
any appointments for a period of one month. In fact, there was no legal
impediment to the appointment of respondents nos.
3-6 as District Judges after the Council of
Ministers had taken a decision at its meeting held on January 30, 1985 to
appoint them as District Judges on the recommendation of the High Court. From
the news item of the press conference held by the Chief Minister on January 31,
1985 as 'reported in the Mathrubhoomy and other Malyalam newspapers, it was
amply clear that the Government had decided to fill up four posts and keep one
vacancy open presumably for the Latin-Catholic candidate since she had filed a
writ petition in the High Court. It is submitted that all the formalities were
complete and the only thing that remained was the issue of a formal
notification in the name of the Governor making the appointments, as required
by Art. 166(1). Alternatively, the learned counsel contends that if the Government
felt that there were unsurmountable difficulties in making the appointments
according to the panel drawn up by the High Court due to non-representation of
Latin-Catholics and AngloIndians, Other Backward Classes and Scheduled Castes
and Scheduled Tribes as expressed by the Chief Minister in his letter dated
March 4, 1985, and as reiterated in the return filed in the High Court by the
Secretary to the Government, Home Department, the State Government should have
referred back the matter to the High Court requiring the High Court to
reconsider the question of selection of candidates. In essence, the contention
is that the subsequent decision of the 163 Council of Ministers taken on
February 28, 1985 was liable to be quashed for want of consultation with the
High Court as required by Art. 233(1), and the learned counsel suggested that
we should remit back the matter to the State Government with necessary
directions. As to the power of the High Court to grant a writ in the nature of
mandamus, he contends that respondents nos..3-6 having been recommended by the
High Court had a legitimate expectation to be appointed as District Judges from
the bar under Art. 233(1) and therefore had the fight to approach the High
Court for grant of necessary relief.
Argument of Sri Subramanion Poti, learned
counsel appearing for respondent no. 1 was that the reasons furnished by the
Chief Minister in his letter dated March 4, 1985 were no reasons at all and
that the reason viz non-representation of Latin-Catholics and Anglo-Indians,
Other Backward Classes and Scheduled Castes and Scheduled Tribes, could not be
a ground for rejection of the panel forwarded by the High Court or furnish a
basis to issue a fresh notification inviting applications. He submits that r. 15(a)
contemplates that if a suitable candidate was not available. the vacancy should
be filled by a candidate belonging to the community or group immediately next
to the passed over community or group. The learned counsel contends that it was
not suggested that the panel of names drawn up by the High Court was not in
conformity with the rules of communal reservation laid down in rr. 14 to 17 6f
the Rules. If no candidates were available from the communities Latin-Catholics
and Anglo-Indians. Other Backward Classes and Scheduled Castes and Scheduled
Tribes, 8th,10th and 12 turns in the cycle of rotation. the vacancy had to be
filled up by respondent No.
1 Smt. A. Lakshmikutty, an Ezhava community
candidate, 14th in the cycle of rotation. According to him-, there were no
'good and weighty reasons' for the Council of MiniSters in withholding from the
Governor the recommendation made by the High Court which was plainly for a bad
reason. While the Council of Ministers had the duty to advise the Governor in
the affairs of the State, it could not withhold information from the Governor.
Alternatively, he adopted the argument of Sri T.S. Krishnamoorthy Iyer and
contended that if it be held that there was no full .and effective consultation
between the High Court and the State Government. the matter be remitted back to
the State Government for reconsideration of the whole question.
We find it difficult to sustain the judgment
of the High Court or the reasons upon which it is based. The High Court if we
may say so without meaning any disrespect, fell into an error in characterising
the 164 reasons given on the basis of which the Council of Ministers reached a
decision on February 28, 1985 to review their earlier decision taken on January
30, 1985 and decided not to appoint anybody as a District Judge from the panel
of names forwarded by the High Court which were 'arbitrary, illegal and
improper'. Apparently, the High Court was not right in its view that the
rejection of the panel for the reason disclosed by the Council of Ministers in
his letter dated March 4, 1985 viz. due to non-representation of candidates
belonging to Latin-Catholics & Anglo-Indians, Other Backward Classes and
Scheduled Castes and Scheduled Tribes, 8th, 10th and 12th turns in the cycle of
rotation, was 'no reason at all'. We are satisfied that the High Court could
not have upon this basis issued a writ of mandamus directing the State
Government i.e. the Governor to appoint respondents Nos. 1 and 3-6 as District
Judges under Art. 233(1) of the Constitution. The High Court has virtually
tendered on advice to the Governor to act on the recommendation of the High
Court i.e. contrary to the advice of the Council of Ministers and thereby
entered into the process of decisionmaking which was constitutionally
impermissible.
The Governor has to act on the advice of the
Council of Ministers under Art. 163(1) in the matter of appointment of District
Judges under Art. 233(1) and not on the advice of the High Court: Shamsher
Singh & Anr. v. State of Punjab, (supra). Appointment of persons to be, and
posting and promotion of, District Judges by the Governor under Art.
233(1) is purely an executive function. The
High Court therefore had no authority or jurisdiction to issue any writ of
mandamus of the kind complained of. If was certainly not open to the High Court
to embark upon an inquiry as to the reasons which impelled the Council of
Ministers at the meeting held on February 28, 1985 to review the decision taken
on January 30, 1985 and decide not to appoint anyone as a District Judge under
Art. 233(1) from the panel of names drawn up by the High Court. It was also not
justified in observing that the reasons as disclosed by the Chief Minister in
his letter dated March 4, 1985, on the basis of which the Council of Ministers
on February 28, 1985 decided not to appoint respondents Nos. 1 and 3-6 as
District Judges on the recommendation of the High Court viz. due to nonrepresentation
of certain important communities or groups of communities, were no reasons at
all and in any event, the reasons given were bad in law. There is no basis, in
our opinion, for the finding reached by the High Court. Learned counsel for the
State Government rightly questioned the authority and jurisdiction of the High
Court to have issued a writ of mandamus commanding the State Government to make
certain appointment of persons to be District Judges when the 165 Council of
Ministers had taken a decision to the contrary.
According to him, this was not a proper
exercise of powers by the High Court under Art. 226 of the Constitution and in
any view of the matter, the issuance of a writ of mandamus in the circumstances
was wholly impermissible. In our opinion, the contention must prevail.
We must refer to the case of Mani Subrat Jain
v. State of Haryana & Ors., (supra) which was relied upon by learned
counsel for the State Government. It is well-settled that a writ of mandamus is
not a writ of course or a writ of right, but is, as a rule, discretionary.
There must be a judicially enforceable right for the enforcement of which a
mandamus will lie. The legal right to enforce the performance of a duty must be
in the applicant himself. In general, therefore, the Court will only enforce
the performance of statutory duties by public bodies on application of a person
who can show that he has himself a legal right to insist on such performance.
Applying the principles stated in Halsbury's Laws of England, 4th edn., vol. 1,
paragarph 122, this Court observed that a person whose name had been recommended
for appointment as a District Judge by the High Court under Art.
233(1) had no legal right to the post, nor
was the Governor bound to act on the advice of the High Court and therefore he
could not ask for a mandamus. It was observed:
"It is elementary though it is to be
restated that no one can ask for a mandamus without a legal right.
The initial appointment of District Judges
under Article 233 is within the exclusive jurisdiction of the Government after
consultation with the High Court. The Governor is not bound to act on the
advice of the High Court.
The High Court recommends the names of
persons for appointment. If the names are recommended by the High Court it is
not obligatory on the Governor to accept the recommendation.
(T)he consultation of the Governor with the
High Court does not mean that the Governor must accept whatever advice of
recommendation is given by the High Court. Article 233 requires that the
Governor should obtain from the High Court its views on the merits and demerits
of 166 persons selected'for promotion and direct recruitment." The
existence of a right is the foundation of the jurisdiction of a Court to issue
a writ of mandamus. The present trend of judicial opinion appears to be that in
the case of non-selection to a post, no writ of mandamus lies. We however do
not wish to rest the decision on the technical ground.
In our considered opinion, the decision of
these appeals must ultimately turn on the question whether there was real, full
and effective consultation by the Governor with the High Court within the
meaning of Art. 233(1) before the State Government reached a decision to reject
the panel forwarded by the High Court. As well-settled, the duty of the
Governor to consult the High Court in the matter of appointment of District
Judges is so integrated with the exercise of his power that the power can only
be exercised in the manner provided by Art. 233(1) or not at all. Normally, as
a matter of rule, the recommendations of the High Court for the appointment of
a District Judge should be accepted by the State Government and the Governor
should act on the same. If, in any particular case, the State Government for
'good and weighty reasons' finds it difficult to accept the recommendations of
the High Court, the State Government should communicate its views to the High
Court and must have complete and effective consultation with the High Court in
the matter. It must therefore follow that before rejecting the panel forwarded
by the High Court, the State Government should have conveyed its views to the
High Court to elicit its opinion, It should have taken the High Court into
confidence and placed before it-the difficulties that faced the Government in
acting upon the recommendations, namely, that it would result in non-representation
of important communities like Latin-Catholics and Anglo-Indians, Other Backward
Classes and Scheduled Castes and Scheduled Tribes, as expressed by the Chief
Minister in his letter dated March 4, 1985. The fulfilment by the Governor of
his constitutional obligation to place full facts before the High Court was a
precondition before the State Government could arrive at a decision not, to
appoint respondents nos. 1 and .3-6 as District Judges. On its part, there was
a constitutional obligation cast on the High Court under Art.
233(1) to express its opinion on a
consideration of the facts and circumstances on the basis of which alone the
nature of the problem could be appreciated and the .right decision taken. It
must accordingly be held that the State Government was wrong in taking a
unilateral decision to cancel all steps taken in pursuance of the notification
dated September 24, 1983 and to issue a fresh notification inviting applica167
tions, without taking the High Court into confidence. In the premises, the
proper course for the High Court to adopt was to have issued a writ in the
nature of mandamus requiring the State Government to place before the High
Court the facts i.e. the difficulties as expressed in the letter of the Chief
Minister dated March 4, 1985 to elicit its opinion.
If the matter rested at that, there would be
no difficulty, but the High Court has gone a step further. The issuance of a
writ of mandamus by the High Court directing the State Government i.e. the Governor
to act on the recommendation of the High Court to fill up the five vacancies in
the posts of District Judges meant for direct recruitment from the members of
the bar under Art. 233(1) was constitutionally impermissible. Although the High
Court was not oblivious that the 'advice' of the Council of Ministers to reject
the panel of fourteen names submitted by the High Court could not be subject to
judicial review and that Art.
163(1) of the Constitution precludes an
inquiry as to the nature of the advice given by the Council of Ministers to the
Governor, still it has issued a writ in the nature of mandamus upon the basis
that it is called upon to adjudge the legality and propriety of the two
decisions taken by the State Government through the instrumentality of the
Council of Ministers. Relying upon the decision of this Court in the State of
Rajasthan & Ors. v. Union of India, [1978] 1 SCR 1, it observed that so
long as the question remains whether the Council of Ministers acted within the
limits of their power or exceeded it, it can be decided by the Court. Apart
from saying that the reasons given on the basis of which the Council of
Ministers on February 28, 1985 reviewed their earlier decision of January 30,
1985 and decided not to appoint respondents nos. 1 and 3-6 as District Judges
on the recommendation of the High Court viz. due to non-representation of
candidates belonging to Latin-Catholics and AngloIndians, Other Backward
Classes and Scheduled Castes and Scheduled Tribes, were no reasons at all, and
that the action of 'the State Government in rejecting the panel sent by the
High Court was totally arbitrary, illegal and improper, it further observed
that 'there was an overt attempt on the part of the State Government to appoint
persons from outside the panel' which was constitutionally impermissible, and
relied on the proposition laid down in Padfied's case that 'if the Minister
gave no reasons, the Court might infer that he had no good reasons to give'. It
accordingly held that the action of the State Government had no rational nexus
to the object sought to be achieved i.e. implementation of the scheme of
communal reservation laid down in rr.
14 to 17 of the Kerala State &
Subordinate Services Rules made applicable by Note beneath r. 2(b) of the
Kerala State Higher Judicial Service Rules.
168 In coming to that conclusion, the High
Court relied upon the following observations of Bhagwati, J. in the State of
Rajasthan & Ors. v. Union of India, (supra) to the effect:
"It will, therefore, be seen that merely
because a question has a political colour, the Court cannot fold its hands in
despair and declare "Judicial hands off". So long as a question
arises whether an authority under the Constitution has acted within the limits
of its power or exceeded it, it can certainly be decided by the Court. Indeed
it would be its constitutional obligation to do so ........... Every organ of
government, be it the executive or the legislature or the judiciary, derives
its authority from the Constitution and it has to act within the limits of its
authority." FolloWing this line of reasoning, the High Court observes that
'every activity of the Government must be informed with reason and every action
taken by the State Government must be in public interest and the action would
be invalid if it is unreasonable or lacking the quality of public interest.
With respect, the High Court was in error in working this principle, which on
the contrary, lands support to the contention of the State Government that the High
Court exceeded its jurisdiction in issuing the writ of Mandamus complained of
the reason for this is obvious. Our Constitution does not envisage a rigid
separation of powers.
For example, the power to promulgate on
Ordinance which, undisputedly, is a legislative power, is conferred on the
executive under Art. 123. Even though this is so, the respective powers of the
three wings of the State are welldefined with the object that each wing must
function within the field earmarked for it. The object of such demarcation is
to exclude the possibility of encroachment on the field earmarked for one wing
by the other or others. As long as each wing of the State functions within the
field carved out and shows due deference for the other two branches, there would
arise no difficulty in the working of the Constitution. But the trouble arises
when one wing of the State tries to encroach on the field reserved for the
other. It is in the above context that special responsibility devolves upon the
Judges to avoid an over-activist approach and to ensure that they do not
trespass within the spheres earmarked for the other two branches of the State.
In our opinion, the High Court could not intervene at a stage where the Council
of Ministers had reviewed the situation and decided to reject the panel sent by
the High Court and not to appoint any of the five advocates to be District
Judges except by issuing a writ in the nature of mandamus requiting the State
Government to refer back the 169 matter to the High Court for reconsideration
in the event the High Court came to the conclusion that there was no full and
effective consultation, .
We find it difficult to fully subscribe to
the view expressed by the High Court that the action of the State Government
was not informed with reason or that it was not in public interest. It cannot
be said that there was any impropriety involved in the Chief Minister writing
to the Actg. Chief Justice placing the views of the Government. The High Court
failed to appreciate that the Chief Minister expressed his unhappiness that due
to adherence to the principle of passing over the Government was not able to
implement its policy of giving adequate representation to candidates belonging
to Latin-Catholics and Anglo-Indians, Other Backward Classes and Scheduled
Castes and Scheduled Tribes. Further, as the vacancies that would occur for
direct recruitment in the cadre of District Judges would only be few, the usual
procedure of passing over communities could not be made good in the near future,
and that the adoption of that course would cause neglect of very backward
communities for a long time. May be, the Government thought, albeit wrongly,
that the principle of passing over embodied in rule 15(a) of the Rules being an
integral part of the process of appointment, the ultimate decision on the question
whether recourse should be had to that principle was one for the Government to
take. We are quite clear in our mind that the Government was misled on that
aspect.
Normally, the principle of passing over laid
down in r.
15(a) of the Rules in as integral part of the
process of appointment and therefore the Government being the appointment
authority would have the right to take a decision in the matter. But the
Government failed to appreciate that the High Court plays a decisive role in
the matter of appointment of District Judges under Art. 233(1). Adjudging suitability
of a candidate for appointment as a District Judge under Art. 233(1) is a
function of the High Court which must necessarily imply that if the High Court
finds that the candidate belonging to a particular community or group is not
suitable for appointment, it has to find a candidate from the community or
group next following in the cycle of rotationIt must logically follow, as a
necessary consequence that it is for the High Court to decide whether or not a.
particular community or group should be passed over under r. 15(a) of the Rules
for want of a suitable candidate and the vacancy be filled up from the
community or group immediately next to the passed over community or group in
the order of rotation or sub-rotation provided in r. 14(c).
All that the State 170 Government could do
was to convey to the High Court the difficulties faced by the Government in
implementing the recommendations. It must accordingly be held that the State
Government wrongly assumed to itself the power to decide the question whether
the principle of passing over laid down in r. 15(a) of the Rules should be
resorted to or not.
There was quite some discussion at the bar as
to whether the Council of Ministers could have reviewed their earlier decision
and decided not to appoint anybody from the panel of names forwarded by the
High Court and to issue a fresh notification inviting applications. The answer
to the question is self-evident. Merely because the Chief Minister briefed, the
press on January 31, 1985 as regards the decision taken at the meeting of the
Council of Ministers held on the previous day and the news of the press conference
was published in the Mathrubhoom and other Malyalam newspapers to the effect
that the Government had decided to fill up four posts of District Judges, it
could not be said that there was an order of the State Government in the manner
required by Art. 166(1). What the news item conveyed was that the Council of
Ministers had taken a decision to advise the Governor to appoint respondents
nos. 3-6 as District Judges. The Governor has to act with the aid and advice of
the Council of Ministers as required by Art.
163(1). Whatever the Council of Ministers may
say in regard to a particular matter, does not become the action of the State
Government till the advice of the Council of Ministers is accepted or deemed to
be accepted by the Head of the State. Before an advice of the Council of
Ministers amounts to an order of the State Government, there are two requirements
to be ful-filled. namely: (1) The order of the State Government had to be
expressed in the name of the Governor as required by Art. 166(1). and (2) It
has to be communicated to the persons concerned. See: Staff of Punjab v. Sodhi
Sukhdev Singh, [1961] 2 SCR 371 and Bachhittar Singh v.
State of Punjab. [1962] Suppl. SCR 713. It
must therefore follow that unless and until the decision taken by the Council
of Ministers on January 30, 1985 was translated into action by the issue of a
notification expressed in the name of the Governor as required by Art. 166(1),
it could not be said to be an order of the State Government. Until then. the
earlier decision of the Council of Ministers was only a tentative one and it
was therefore fully competent for the High Court to reconsider the matter and
come to a fresh decision.
It is said reflect that there should have
been this unfortunate discord between the High Court and the State Government
over the 171 direct recruitment of District Judges from the bar under Art.
233(1). This was mainly because there was failure to appreciate on the part of
both the respective functions of each. We hope and trust that the State
Government and the High Court in the consultative process would come to a
solution of the problem acceptable to both as early as possible.
At our request, the Registrar of the High
Court has furnished us with requisite information on the strength of cadre of
District Judges. From the Note prepared by him, the picture that emerges is
this. Under the proviso to r. 2(b) of the Kerala State Higher Judicial Service
Rules, one-third of the permanent posts of District Judges including Selection
Grade District Judges has to be filled up or reserved to be filled up by direct
recruitment. The number of permanent places of District Judges is 29. There is
only one District Judge at present who is a direct recruit. The number of posts
has increased with the creation of three posts of Motor Accidents Claims
Tribunals at Palghat, Manjeri and Tellichen which started functioning from June
1, 198 1, and became permanent by June 1, 1986. Thus the number of permanent
posts of District Judges has gone up to 32.
Therefore, there arises the need for filling
up ten posts of District Judges by direct recruitment. Even after the filling
up of five vacancies with which we are concerned, there would still remain
scope for selecting four more District Judges from the bar. With the elevation
of Sri K.T. Thomas and Sri K. Sreedharan who were both directly recruited from
the bar, there would be need for filling up the posts of District Judges
vacated by them. Due to the constitutional impasse created, the matter is at a
standstill.
In the result, the appeals succeed and are
allowed to the extent indicated herein. The judgment and order of the High
Court directing the issuance of a writ of mandamus commanding the State
Government to appoint respondents Nos.
1 and 3-6 as District Judges under Art.
233(1) of the Constitution are set aside. We instead direct that a writ in the
nature of mandamus shall be issued to the State Government requiring it to
communicate its views to the High Court to elicit its opinion within six weeks
from today and, if necessary, make a fresh effort to find suitable candidates
from the communities or groups of communities passed over before taking a final
decision in the matter. In consequence, the State Government's decision not to
make appointments from the panel forwarded by the High Court and to renotify
the vacancies must stand quashed. The High Court shall also comply 172 with the
directions issued by this Court in two cases of Smt. N. Subhadra Arnrna and K.
Sadanandan. We make it clear that the choice of candidates lies entirely with
the High Court.
There shall be no order as to costs.
S.R. Appeals allowed.
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