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TMI Blog1986 (11) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cornpetition. 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 cycl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ans', 8th in the cycle of rotation. 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dingly, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n inviting applications from the members of the bar for appointment as 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 suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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. 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% reservatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 inquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer 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 ' 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 recommend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered afresh in the light of the subsequent developments. 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-Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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. 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 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roper 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. ... 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 gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] 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 candidat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Mini Sters 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 Caste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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