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PETITIONER: STATE OF KERALA

       Vs.

RESPONDENT: A. LAKSHMIKUTTY & ORS.

DATE OF JUDGMENT10/11/1986

BENCH: SEN, A.P. (J) BENCH: 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 candi- dates 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  Constitu- tion--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  Subordi- nate 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 speci- fied  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  clas- sified 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

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is available, the vacancy has to be filled by open  competi- tion. 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 candi- dates  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  cate- gories specified in Rule 17(1). Categories 1 to 7 are  Ezha- vas and Thiyyas, Muslims, Latin-Catholics and Angin-Indians, Nadars, Scheduled Castes converts to Christianity, Viswakar- mas  and Dhooravas. All other backward classes put  together constitute  the 8th category. Rule 17(2) provides  for  sub- rotation  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  Latin- Catholic 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

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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  Anglo- Indian  community, Respondent No. 1 Smt. Lakshmikutty  moved the  High Court by a petition under Article 226 of the  Con- stitution  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  Govern- ment  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 AngloIndians’   ’Other  Backward  Classes’  and   ’Scheduled Castes  and Scheduled Tribes’, 8th, 10th, and 12th turns  in the  cycle of rotation, However, the Kerala High  Court  al- lowed 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  respondents- State  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  Govern- ment  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  appoint- ment 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

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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  Govern- ment  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 forward- ed  by  the  High Court, the State  Government  should  have conveyed its views to the High Court to elicit its  opinion. [I66C-E] The fulfilment by the Governor of his constitutional obliga- tion 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  Govern- ment 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 applica- tions,  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  Minis- ter 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  func- tion 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 branch- es,  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  re- sponsibility devolves upon the Judges to avoid an overactiv- ist 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 situa- tion 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,  dis- cretionary. There must be a judicially enforceable right for the  enforcement  of which a mandamus will  lie.  The  legal

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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 direct- 141 lag  the  State Government i.e. the Governor to act  on  the recommendation of the High Court to fill up the five  vacan- cies  in the posts of District Judges meant for  direct  re- cruitment 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 recommenda- tion  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  Minis- ters  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 there- fore  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  appoint- ment  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  appoint- ment  of District Judges under Art. 233(1). Adjudging  suit- ability 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 follow-

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ing 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  as- sumed 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  require- ments  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 Minis- ters  on JanUary 30, 1985 was translated into action by  the issue of a notification expressed in the name of the  Gover- nor  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.

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeals Nos.  4224- 27 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, P- Parameshwarn, 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  recom- mendation of the High Court to fill up the five vacancies in the posts of DiStrict Judges reserved for direct recruitment

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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  Class- es’  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  candi- dates was Ms. Mary Teresa Dias, District Government  Pleader and  Public Prosecutor of Ernakulam belonging to the  Latin- Catholic community. It however appears that the Committee by a  majority  of 2:1 felt that she was not suitable  for  ap- pointment  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-Indi- ans’ 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

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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 corn- 145 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  be- longing  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  commu- nity  moved the High Court by a petition under Art.  226  of the Constitution for grant of writs in the nature of  manda- mus  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 Mathrub- hoomy,  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 vacan- cy  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  respond- ents 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. controver- sy  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  pre- sumably for a candidate belonging to the group ’Latin-Catho- lics 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 appropri- ate  writ, direction or order to quash the decision  of  the Council of Ministers dated January 30, 1985 deciding not  to

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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  Dis- trict  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  rota- tion. 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 prohibito- ry  order restraining the State Government from  making  any appointment  of respondents Nos. 3 to 6 or any other  candi- date 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  Govern- ment  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

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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  Dis- trict Judges from the bar. The avowed policy of the  Govern- ment  is to give adequate representation to  candidates  be- longing to Scheduled Castes, Scheduled Tribes, Latin  Catho- lics/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  con- tains  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  notifica- tion dated 24th September, 1983, and to invite fresh  appli- cations  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  Minis- ters  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  Class- es’  and  ’Scheduled  Castes and Scheduled  Tribes’  if  the appointments were to be made according to the panel  submit- ted  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  afore- said notification and all the steps taken pursuant  thereto. It was further decided to issue a fresh notification  invit- ing 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

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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  Secre- tary  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-repre- sentation  of  Scheduled  Castes,  Latin-Catholics,   Anglo- Indians 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  provi- sions  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  opin- ion  of  the State, are not adequately  represented  in  the services 150 under the State. These rules are meant to ensure fair repre- sentation  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 follow- ing 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.

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(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 specif- ic. 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)  en- joins 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  selec- tion  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 opportuni-

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ty. 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  consti- tute  the 8th category. R. 17(2) provides  for  sub-rotation among  the other backward classes. We need not go  into  de- tails  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 class- es  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  Gover- nor,  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 refus- al’  on the part of the State Government to exercise  juris- diction.  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 recommenda- tions  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 obtain- ing 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  Anglo- Indians,  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

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available  from a particular community or group of  communi- ties.  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  pre- text  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  subse- quent 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 candi- date, questioned the method of selection adopted by the High Court by interview. Both Smt. N. Subhadra Amma and K.  Sada- nandan 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

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directing  the  High Court to consider their names  for  ap- pointment 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  ques- tion has to be considered afresh in the light of the  subse- quent developments. 155     Various contentions have been advanced by learned  coun- sel  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  Govern- ment  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  deter- mination,  namely: (i) Whether the High Court’was  justified in holding that the 156 Council of Ministers could not have at the subsequent  meet- ing  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

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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  Dis- trict Judge by direct recruitment from the bar or by  promo- tion  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  co- nsultation 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 promo- tion 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  appoint- ment.  It is therefore obvious that eligibility of  appoint- ment 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

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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  consulta-               tion  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  recom-               mendations  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  re- quirements of the Constitution. We fully endorse the princi- ple  deduced by him from the  . various authorities of  this Court in these words:               "Normally, as a matter of rule, the  recommen-               dations  made  by the High Court for  the  ap-

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             pointment  of a District Judge should  be  ac-               cepted by the State Government and the Gover-               159               nor should act on the same. If in any particu-               lar  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  con-               vinced 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  ’consul- tation’  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 satisfac- tory 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  consid-               eration 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  deline- ated  by  Chandrachud, J. in Union of India  v.  Sankalchand Himatlal Sheth & Anr., [1977] 4 SCC 193, in his own  illumi- nating language:               "It casts an absolute obligation on the Presi-               dent  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  inter-               vening  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  trans-               fer 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

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             in behalf of the proposed transfer. Indeed, it               is euphemistic to talk in terms of  effective-               ness,  because  the transfer of a  High  Court               Judge to another High Court is unconstitution-               al 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  circum-               stances 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  Jus-               tice,  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  constitu-               tional  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  complemen-               tary 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),  there-               fore, 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  observa- tions  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  consulta- tion  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  non- selection  to a post. According to the learned  counsel,  it

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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  ad- judging  the suitability of candidates was no doubt a  func- tion 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 Govern- 162 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  submis- sions.     Arguments of Sri T.S.Krishnamoorthy Iyer, learned  coun- sel  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  constitu- tionally 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  ad- interim 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  com- plete  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  ap- pointments according to the panel drawn up by the High Court due to non-representation of Latin-Catholics and  AngloIndi- ans, Other Backward Classes and Scheduled Castes and  Sched- uled Tribes as expressed by the Chief Minister in his letter

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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 suggest- ed that we should remit back the matter to the State Govern- ment 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 neces- sary relief.     Argument  of Sri Subramanion Poti, learned  counsel  ap- pearing 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 suggest- ed  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

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dated March 4, 1985 viz. due to non-representation of candi- dates  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  respond- ents 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  decision- making 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  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,  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  opin- ion, 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,  there- fore, the Court will only enforce the performance of  statu- tory 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

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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 consulta-               tion 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  re-               quires  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  jurisdic- tion  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 howev- er 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. Normal- ly,  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  Govern- ment  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  recommenda- tions, namely, that it would result in non-representation of important  communities like Latin-Catholics and  Anglo-Indi- ans, Other Backward Classes and Scheduled Castes and  Sched- uled  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  Govern- ment 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

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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 applica- 167 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  opin- ion.     If  the matter rested at that, there would be no  diffi- culty,  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  recom- mendation 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  constitu- tionally  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-representa- tion  of candidates belonging to Latin-Catholics and  Anglo- Indians,  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 improp- er, 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.  implementa- tion 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

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             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  ob- serves  that ’every activity of the Government must  be  in- formed  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  re- spective  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 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  Constitu- tion.  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  ear- marked  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

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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  ques- tion  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  appoint- ment  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  appoint- ment  of District Judges under Art. 233(1). Adjudging  suit- ability  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 rotation-  It must logically follow, as a  necessary  conse- quence  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  ques- tion  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  confer- ence  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  require- ments  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 communicat- ed  to the persons concerned. See: Staff of Punjab v.  Sodhi

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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  Selec- tion  Grade District Judges has to be filled up or  reserved to be filled up by direct recruitment. The number of  perma- nent  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,  Man- jeri  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  fill- ing 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  Con- stitution  are set aside. We instead direct that a  writ  in the nature of mandamus shall be issued to the State  Govern- ment 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  conse- quence, the State Government’s decision not to make appoint- ments from the panel forwarded by the High Court and to  re- notify  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

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that  the choice of candidates lies entirely with  the  High Court.       There shall be no order as to costs. S.R.                                           Appeals   al- lowed. 173