Holding

The High Court erred in issuing a mandamus directing appointment; the Governor must consult the High Court effectively, and the State must communicate its difficulties to the Court before rejecting the panel.

Summary

The Kerala High Court had recommended a panel of five advocates for direct recruitment as District Judges and the Governor, acting on the Council of Ministers' advice, initially decided to appoint them but later withdrew the decision citing lack of representation of certain communities. The High Court issued a writ of mandamus directing the Governor to appoint the candidates as per its recommendation. The Supreme Court held that the Governor’s power under Art. 233(1) is an executive function that must be exercised after full and effective consultation with the High Court, and that the High Court cannot compel the Governor to act contrary to the Council of Ministers without such consultation. Consequently, the writ of mandamus directing appointment was set aside, and the State was ordered to place its difficulties before the High Court and, if necessary, make a fresh effort to find suitable candidates. The appeals were allowed, modifying the High Court’s order.

Issues considered

Whether the High Court could issue a writ of mandamus directing the Governor to appoint District Judges as per its recommendation under Art. 233(1).
Whether the Governor’s power to appoint District Judges is conditioned by real, full, and effective consultation with the High Court.
Whether the State Government’s unilateral rejection of the High Court’s panel without proper consultation was valid.
Whether a writ of mandamus lies in a case of non‑selection to a post.

Legislation cited

Constitution of Indias. Art. 163(1), s. Art. 16(4), s. Art. 166(1), s. Art. 226, s. Art. 233(1)

Subjects

judicial appointmentmandamusconsultationArticle 233GovernorHigh Courtreservationcommunal rotationexecutive‑judiciary relationswrit jurisdiction

Judgment

STATE OF KERALA
A
v.
A. LAKSHMIKU1TY & ORS.

NOVEMBER 10, 1986

B [A.P. SEN AND B.C. RAY, JJ.]

Judicial Review of the act of Governor not to appoint candidates
for Dt. Judges' post as recommended by the High Court and Writ of
Mandamus, issuance of-Whether the High Court could issue a writ of
mandamus lo the Governor of the State directing him to act as per the ,
C recommendation of the High Court to fill up the vacancies in the posts - ~'\
of District Judges reserved for direct recruitment from the practising ·
members of the bar under Article 233(1) of the Constitution-Consti-
tution of India, 1950, Articles 163(1), 226 and 233 read with Rul" 2(b)
of the Kera/a State Higher Judicial Rules, 1961 and Rule 14(c) of the
Kera/a State and Subordinate Service Rules, 1958.
D
Rule 2(b) of the Kerala State Higher Judicial Service Rules, 1961
requires that the cycle of rotation governing reservation of posts a• laid
down in Rule 14(c) of the Kerala State and Subordinate Service Rules,
1958 be followed in the selection and appoinbnent of District Judges by
direct recruitment. Under Rule 14(c) appointments shall be made in the
E order of rotation specified therein in every cycle of 20 vacancies. It is
not often that there is no eligible candidate available from a community
or group of communities. To meet such a situation, r. 15(a) provides
that if a suitable candidate is not available for selection from any
particular community or group of communities specified in the anne-
xure, the said community or group shall be passed over and the post
F filled by a suitable candidate from the commuaity or group of com- ~
munities immediately next to the passed over community or group in . c
the order of rotation. Rule 15(b) enjoins that if a suitable candidate is
not available for selection from the group of communities classifiL'CI as
"Scheduled Castes", in the tum allotted for such a group in the anne-
xure, the said group shall .be passed over and the post shall be filled by a
G 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 namely, Scheduled Castes and Scheduled
Tribes is available, the vacancy has to be filled by open competition.
Rule 15(c) provides for restoration of the benefit of the tum forfeited at
the earliest opportunity. Proviso thereto however enjoins that the resto-
H ration of the benefit of the tum forfeited by the carry-forward rule,

136
~
'
STATE OF KERALA v. A. LAKSHMIKUTiv 137

1 shall not exceed 50% of the vacancies to be filled in a particular year. A
Rule 16 provides for sub-rotation among major groups of other back·
ward clJISses. Rule 17(1) lays down the manner in which appointments
have to be made from candidates belonging to other backward classes.
Other backward classes are enumerated in List 111 to Part. I of the Rules
and there are 73 communities or groups divided into ~ categories
specified in Rule 17(1). Categories I to 7 are Ezhavas arid Thiyyas, B
Y. Muslims, Latin-Catholics and Anglo-Indians, Nadars, Scheduled
Castes converts to Christianity, Viswakarmas and Dhooravas. AH other :
backward classes put together constitute the 8th category. Rule 17(2)
. "'_provide5 for sub-rotation among the other hack..;ard classes. In the last
' recruitment made in the year 1978 appointments had been made upto
7th tum in the cycle of rotation. c
--( The Committee of three senior most Judges constituted. hy the
Full Court interviewed the cillldidates and drew up a list of fifteen
candidates adjudged on ~ 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 appoint· D
ment by the Committee by a majority of 2: I. On an approval of the
revised panel of fourteen candidates by the Full Court by a majority at
a mP.eting held on 12.6.1984, the said list was sent totlie Chief Minister.
As there was no candidate belonging to the 'Latin-Catholics and
J.: Anglo-Indians', 'Other Backward Classes and 'Scheduled Castes and
Scheduled Tribes', 8th, 10th and 12th in the cycle of rotation, the first E
vacancy haol be filled by reason of rule IS(a) of the Rules by a suitable
candidate belonging to the community or group of 'Communities im·
. mediately next to the passed over community or group i.e. by "'5pon·
dent No.1 Smt. A. Lakshmikutty, a member of the 'Ezhava' commun-
ity, 6th in order of merit, falling in the group 'Ezbavas', Thiyyas and
'Billavas', 14th in the cycle of rotation. The second vacancy i.e. 9th in F
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 "l'd 12th in the cycle of rotation, it
had to be filled by a MusHm candidate C. Khalid, respondent No. 4 who G
was 5th in order of merit and 16th in the cycle or rotation. The fourth
.... vacancy had to be filled by a candidate on the basis of open competition .
i.e. by respondent No. 5 Achuthan Uoni, 2nd in order of merit and I Ith
in the cycle of rotation. The fifth vacancy was to be tilled by respondent
No. 6 Rajappan Asari, a Viswakarma, 4th in order ol merit and 20th in
the cycle of rotation. H
138 SUPREME COURT REPORTS (1987] 1 S.C.R.

Shortly thereafter, on June 27, 1984, Ms. Mary Teresa Dias med
A 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 Angl<>-lndian community with a .
dlrection to the State Gov.ernment not to fill up any of the five vacancies
in the post of Dis_trict Jugdes without inclusion of her name in the panel
and a further direction to the High 'Court to forward her name for
B appointment as a District Judge. The said writ petition was however
dismissed later on.
I
Subsequently pursuant to a news item appearing on 31.1.1985 in_ __,.J,
several malayalam newspapers to the effect that the cabinet as its meet- · 1
ing held on 30.1.1985 had decided to appoint only four out of the said
c five candidates leaving A. Lakshmikutty sixth in order of merit belong-
ing to the Ezhava community as one post was to be kept vacant for a )
candldate belonging to the group of Latin-Catholic Anglo-Indian com·
munity, Respondent No. 1 Smt. Lakshmikutty moved the High Court
by a petition under Article 226 of the ·Constitution for grant of an
appropriate writ, direction or order to quash the decision of the Council
D 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 CBM!
being made out. ·
E
· . The State Government having been restrained from makiing 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, _J
1985. The Government reconsidered the whole question of direct re· ·
F cruitment of District Judges from the bar afresh and decided not to
,---1
.J
appoint anybody from the panel of names recommended by the High
Court due to non-representation of 'Latin-Catholics and Anglo-
Indians' 'Other Backward Classes' and 'Scheduled Castes and
Scheduled Tribes', 8th, 10th, and 12th turns in the cycle of ro!ation,
However, the Kerala High Court allowed the writ petition filed by
G Respondent A. Laksbmikutty 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 1
and 3 to 6 as recommended by the High Court under Article 23J ( l) of
H the Constitution. Hence the State appeals, by special leave.
STATE OF KERALA v. A. LAKSHMIKUTfY [3Q

Allowing the appeals and modifying the order, the Court,
A•
HELD: I. I The power of appointment of persons to be District
Judges conferred on the Governor, meaning the State Government,
under Art. 233( I) in ccmsultation with the High Court is executive
function. Tlie power of the State Government is not absolute and unfet-
tered hut is hedged in with conditions. The exerdse of the power of the B
-,., Governor under Art. 233(1) in the matter of appointment of District
Judges is conditioned by consultation with the exercise of the power that
the power can only be exercised in consultation with the High Court.
"'"' Therefore, the eligibility of appointment of persons to be District
· ·Judges by direct recruitment from amongst the members of the bar
. depends entirely on the recommendation of the High Court: The State
Government has no power to appoint any person as a District Judge C
-~. 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 (I) must not be an
empty formality but real, full and effective. [156H-157E]
D
Chandra Mohan v. State ·of U.P. & Ors., [1967i I SCR 77; A
Panduranga Rao v. State of Andhra Pradesh & Ors., [1967] I 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] I SCR 593;
Chandra mouleshwar Prasad v. Patna High Court & Ors., [1970] 2
SCR 666; High Court of Punjab & Haryana etc. v. State of Haryana, E
[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 · F
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 appoO:.tment of
· a District Judge should be accepted by the. St~te Goverl.menf.and the
Governor should act on the same. If, in any partl~\J!a~·:c~, t~ stiite .
Government for 'good and weighty reaSons' fiiids it difficult ·to.accept
the recommendations of the High C()urt, the State Govemfuent;~hoUid ' G •·
communicate its views to the High Court and must have complefli':irud
effective consultation with the High Court in the matter. In the instant
case, therefore, before rejecting one panel. forwarded by the High
Court, the State Government should have conveyed its views to the
High Court to elicit its opinion. [166C-EJ
H
The fulfilment by the Governor of his constitutional obligation to
140 SUPREME COURT REPORTS (1987] 1 S.C.R.

place full facts before the High Court was a pre-condition before the
A State Government could arrive at a decision not to appoint respondents
Nos. I and 3-6 as District Judges. On its part, there was a constitutional
obligation cast on the High Court nuder Art. 233(1) to express its opi-
nion on a consideration of the facts and circumstances on the basis of
which alone the nature of the problem could be appreciated and the
B right decision taken. Therefore, the State Government was wrong in
taking a unilateral decision to cancel all steps taken in pursuance of the
notification dated September 24, 1983 and to issue a fresh notification
inviting applications, without taking the High Court into confidence.
And the proper course for the High Court to adopt was to have issued a I
writ in the nature of mandamus requiring the State Government l1t /"\
C place before the High Court the facts i.e. the difficulties as expressed in
the letter of the Chief Minister dated March 4, 198$ to elicit its opi-
nion. [166G-167A]

1.3 The respective powers of the three wings of the State are
well-defined with the object that each wing must function within the
D field earmarked for it. The objects of such demarcation is to exclude the
possibility of encroachment on the field earmarked for the wing by the
other or theirs. As long as each wing of the State functions within the
field carved out and shows due deference for the other two branches,
there would arise no difficulty in the working of the Constitution. But,
when one wing of the State tries to encroach on the field reserved for the
E other, special responsibility devolves upon the Judges to avoid an over-
activisl approach and to ensure that they do not trespass within the

1
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 situati11n and decided to reject the panel
sent by the High Court and not to appoint any of the five advocates to he
f 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-169AJ.
2. I 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
G will lie. The legal right to enforce the performance of a duty must be in
the applicant himself. In general, therefore, the Court will only enforce
the perfor!'lance of statutory duties by public bodies on application of a
person who can show that he has himself a legal right to insist 011 sllch
performance. [I 6SC]
H 2.2 The issuance of a wqt of mandamus by the High Court direct-
'STATE OF KERALA v. A. LAKSHMIKUTTY 14 l

Ing the State Government i.e. the Governor to act on the recommenda- A
tion of the High Court to fill up the five vacancies in the posts of District
Judges meant for direct recruitment from the members of the bar under
Art. 233( 1) was constitutionally impermissible. Although the High
Court was not oblivious that the 'advice' of the Council of Ministers to
reject the panel of fourteen names submitted by the High Court could
not be subject to judicial review and that Art. 163(1) of the Constitu- B
lion, precludes an inquiry as to the natnre 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 onhe two decisions taken by the State Govern-
':>\ .. ment through the instrumentality of the Council of Ministers. By doing
so, the High Court has virtually tendered an advice to the Governor to C
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
·'"f.. decision making which as constitutionally impermissible. The Governor
has to act on the advice of the Council of Ministers under Art. 163( l) 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 D
posting and promotion of, District Judges by the Governor under Art.
233( !) is purely an executive function The High Court therefore had no
authority or jurisdiction to issue any writ of mandamus of the kind
complained of. It was certainly not_ open to the High Court to embark
upon an inquiry as to the reasons which impelled the Council of
Ministers at the meeting held on February, 28, 1985 to review the E
decision taken on January 30, 1985 and decide not to appoint anyone as
a District Judge under Art. 233( l) 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. l and 3-6 as District Judges on lhe F
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 finding reached by the High Court. [167B-D, !64E-G)

3. Normally, the principle of passing over laid down in Rule 15(a) G
of the Kerala State and Subordinate Service Rules, 1958 is an integral
part of the process of appointment and therefore the Government being
+ the appointment authority would have the right to take a decision in the
matter. But the Government failed to apprec_iate that the High Court
plays a decisive rule in the matter of appointment of District Judges
under Art. 233( 1). Adjudging suitability of a candidate for appointment H
142 SUPREME COURT REPORTS (1987] l S.C.R.

A 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 conseque,nce that it is for the High Co!Jrt to decide whether
B or not a particular community or group should be passed over under r.
IS(a) of the Rules for want of a suitable candidate and the vacancy be
:>f
fdled up Crom the community or group immediately next to the passed
over community or group in the order of rotation or sub-rotation pro-
vided 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 . _ \
C 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. l.S(a) of
the Rules should be resorted to or not. {I 69F-1708]

4. Whatever the Council of Ministers may say in regard to a
D particular matter, does not become the action of the State Government
tili the advice of the CouncU or. Ministers is accepted or deemed to be
accepted by the Head of the State. Before an advice of the Council of
Ministers amounts to an order of the State Government, there are two
requirements to be fulfill!'<', namely; (I) The order of the State Govern·
ment had to be expressed in the name of the Governor as required by
E Art. 166(1); and (2) It has to be communicated to the persons con-
cerned.' It must therefore follow· that unless and until the decision taken
by the Council of Ministers on January 30, 1985 was translat1~ into
11ction by the issue of a notification expressed in the name of the Gover-
nor as required by Art. 166(1), it could not he said to be an order of the
State Government. Until then, the earlier decision of the Council of
F 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.
G

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos.
Q~~~. ~
•
From the Judgment and Order dated 29.4. 1985 of the Kerala
H High Court in O.P. Nos. 905, 2732, 2781 and 3243 of 1985.
STATE OF KERALA v. A. hAKSHMIKUTTY (SEN, J.] 143

G. Viswanatha Iyer and Mrs. Baby Krishnan for the Appellant. ,
A
T.S. Krishnamoorthi, P. Subramonian Poti, T. Sridharan, A.S.
Nambiar, P. Parameshwarn, Mrs. S.anta Vasudevan, E.M.S. Anam,
T.L. Viswanatha Iyer, S. Balakrishnan and Ramesh N. Keswani for
the Respondents.
B
y 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
r,. quashing the Cabinet decisions of January 30, 1985 and February 28,
1985 and issuing a writ in the nature of mandamus directing the res-
pondents to fill up five vacancies in the posts of District Judges meant
c
for direct recriiitment from the bar, by the appointment of respon-
dents Nos. I and 3 to 6 as recommended by the High Court under Art.
233(1) of the Constitution. The issue involved is whether the issuance
of a writ of mandamus by the High Court directing the Governor to act
on the recommendation of the High Court to fill up the five vacancies D
in the posts of District Judges reserved for direct recruitment from the
· practising members of the bar under Art. 233( 1) of the Constitution
was constitutionally impermissible.

By the judgment, a Division Bench of the High Court has held
X that although it was not oblivious that the 'advice' of the Council of E
Ministers to reject the panel of fourteen names forwarded by the High
Court could not. be subject to judicial revj~w and that Art. 163(3) of
the Constitution precludes an inquiry as)o the nature of the advice
given by the Council of Ministers to the Governor, still it had the

t
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 F
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, !985 purported
to review their earlier decision dated January 30, 1985 and decided not
to appoint r~spondents Nos. 1 and 3 to 6 as District Judges on the
recommendation of the High Court due to the non-representation of G
candidates belonging to the 'Latin-Catholics and Anglo-Indians',
'Other Backward Classes' and 'Scheduled Castes and Scheduled
·+ Tribes', 8th, 10th and I.2th 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. H
144 SU!'REME COURT REPORTS (1987] 1 S.C.R.

A The facts. At the instaI\ce of the High Court, the State Govern-
ment issued a notification on September 24, 1983 inviting applications
from eligible members of the. bar to fill up three vacancies in the cadre
of Djstrict 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
B 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 recom-
mendations. The Full Court at a meeting held on March LS, 1984
constituted of 'Committee of three senior most Judges to prepare a
panel of names. The Committee interviewed the candidates and drew/\
C up a list of fifteen candidates adjudged as eligible on an overall assess-
ment of the merits. One of the fifteen candidates was Ms. Mary Teresa
Dias, District Government Pleader and Public Prosecutor of Ema-
kulam 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 appointment as a District Judge and accordingly deleted her name
D from the list of eligible candidates and drew up a panel of the remain-
ing 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 t]le Chief
E Minister the panel of fourteen names as settled by the High C'ourt for 'A.

i
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 iri r. 14{c) of the Kerala
Sta.te & Subo.rdinate Services Rule, 1958, as required by r. 2{b) of the
Kerala State Higher Judicial Service Rules, 1961. Accordingly, the
F appointments had to start with the first vacancy going to a candidate.-
belonging to the 'Latin-Catholics and Anglo-Indians' community, 8th
tum in the cycle of rotation. As there was no candidate belonging to
the 'Latin-Catholics and Anglo-Indians'. 'Other Backward Classes'
and 'Scheduled Castes and Scheduled Tribes', 8th, 10th and 12th in the
cycle of rotation, the first vacancy had to be filled by reason ofr. 15{a)
G 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
H respondent No. 3, Krishnan Nair, 1st in order of merit, by open com-
STATE OF KERALA v. A. LAKSHMJKUTTY (SEN, J.] 145

petition. The third vacancy had to go to 'Other B.ackward c;tasses', A
10th in the cycle of rotation. As. there was no 'Other Backward Clas-
ses' candidates nor any candidate beloning to the 'Scheduled Castes
and Scheduled Tribes', 10th and 12th in the cycle of rotation, it had to
be filled by a l'luslim candidate C. Khalid, respondent No. 4 who was
5th in order of merit and 16th in the cycle of rotation. l;he fourth
vacancy had to be filled by a candidate on the basis of open< competi- B
tion i.e. by respondent No. 5 Achuthan Unni, 2nd in order of merit·
and I Ith 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 c
candidate belonging to the Lathin-Catholic community moved the
High Court by a petition under.Art. 226 of the Constitution for grant
--{ of writs in the nature of mandamus directing the State Government to
forbear from filling up any of the five vacancies in the post of District
Judges without inclusion of her name in the panel and for directing the
High Court to forward her name for appointment as a District Judge. D

On January 31, t985 a news item appeared in the Mathrubho-
omy, 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 E
of District Judges from the panel of names recommended by the High
Court and to keep one post vacant since there was a writ petition
pending in the High Court. It was said that the fifth vacancy would also
be filled after the decision of the High Court. Further,the news item in·

~··.
Mathrubhoomy was to the effect that the Government had decided to
appoint respondents Nos. 3 to 6 Krishiian Nair, C. Khalid, E. F
Achuthan Unni and G. Rajappan Asari as District Judges from the bar
on the recommendation to the High Court. There was some contro-
versy 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 as-
serted that the meaning should be 'it was decided to appoint'. The G
State Government had therefore decided not to appoint respondent
No. I Smt. A. Lakshmikutty belonging to the Ezhava Community, 14th
'
~- in the cycle of rotation, and one post was to be kept vacant presumably
for a candidate belonging to the group 'Latin-C~tholics and Anglo-
lndians', 8th in the cycle of rotation.
H.
146 SUPREME COURT REPORTS (1987] 1 S.C.R.

A On the next day i.e. on February 1, 1985, respondent No. 1 Smt.
A. Lakshmikutty moved the High Court by a petition under Art. 226
of the Constitution for grant of an appropriate writ, direction or order
to quash the decision of the Council of Ministers dated January 30,
1985 deciding not to appoint her as a District Judge·as per the panel
sent up by the High Court. She by an application also prayed for grant
B of an ad-interim prohibitory order to restr;lin the State Government
from appointing respondents Nos. 3 to 6 as District Judges. The stay
application was heard by a Single Judge for two days, on February 13
and 20, 1985. At the hearing on February 13, the learned Advocate-
General stated that the Governor had not issued any order of appoint-
ment in favour of respondent Nos. 3 to 6 and gave an undertaking on
C behalf of the State Government that no such appointments would be
made for a period of seven days. At the hearing 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
D post was kept vacant on account of the Writ Petition filed by the
Latin-Catholic candidate Ms. Mary Teresa Dias was correct. 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
E held that prima facie the Cabinet decision of January 30, 1985 decid-
ing 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,

1
the first vacancy could not be offered to any person. The relevant
F portion of the order reads:

"Prima fade, 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
G Latin Catholic and Anglo Indian community, item 8 in the
cycle of rotation. In the absence of such a candidate, the
vacancy should go to a candidate in item 10 in the cycle of
rotation. The penal does not contain names of any candi-
dates who come within 8th, 10th or the 12th items, in the
cycle of rotation. Therefore, first vacancy should go to a
H candidate, falling in the 14th item in the cycle, namely,
Ezhava."
STATE OF KERALA v. A. LAKSHMIKUTIY (SEN, J.] 147

--·( Upon that view, the learned Single Judge issued a prohibitory order A
restraining the State Government from making any
appointment of
respondents Nos. 3 to 6 or any other candidate as District Judges for a
period of one month.

The State Government having been restrained from making the B
appointments for a period of one month i.e. till March 20, 1985, the
matter of direct recruitment of District Judges from the bar again came
up before a meeting of the Council of Ministers held on February 28,
1985. The Government reconsidered the whole question of direct re-
i,.., cruitment of District Judges from the bar afresh and decided not to
·-- appoint anybody from the p;mel of names recommended by the High
Court due to non-representation of 'Latin-Catholics and Anglo- c
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:
D
"My dear Chief Justice,

Sub: Direct recruitment of District Judges from the
Bar.

Please refer to your letter No. R3/84(SS) dated E
14.6. 1984 forwarding a panel of 14 candidates considered
suitable by the High Court for appointment as District
Judges direct from the Bar. You are aware that some O.Ps
have been filed in the High Court in connection with the
selection and appointmeni of the District Judges.
F
In that context, Government have reviewed the en-
tire issue of appointment to the five vacancies of District
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
Catholics/Anglo Indians and Other Backward Commu- G
nities as far as possible. Unfortunately we cannot imple-
ment this policy if appointment is made .from the panel now
prepared as it contains no candidates from these groups.
As ·the vacancies that will occur for direct recruitment in
the cadre of District Judges will be only few, the passing II
over of the communities cannot be made good in the near
148 SUPREME COURT REPORTS (1987) 1 S..C.R.

A future. Consequently, the usual procedure of passing over 'r
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.
13
)
Having due consideration to the above facts, Govern-
ment have decided to cancel all steps taken so far on the
basis of applications received in response to notification ,
~ated 24th September, 1983, and to invite fresh applica- . / ,
lions and to do recruitment of District Judges from the Bar
on the basis of such fresh applications."
c
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 deci-
sion of the Council of Ministers taken on February 28, 1985 and to
D appoint respondents Nos. I and 3 to 6 to be District Judges under Art.
233( I) 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( I) is an executive func-
tion and the Governor is bound to act on the advice of the Council of
Ministers under Art. 163( I). It was also pleaded that it was not open to
E the High·Court to scrutinise the reasons which impelled the Co11Dcil of
Ministers to review its earlier decision taken on January 30, 1985 and
decide in the subsequent meeting held on February 28, 1985 not to
appoint anyone as a District Judge under Art. 233( I) from the panel of
names submitted by the High Court.

F It was averred that there were good and weighty reasons why the
I
State Government were constrained to review their earlier decision.
..i
The State Government was faced with a serious problem in that there
would be non-representation of 'Latin-Catholics and Anglo-Indians',
'Other Backward Classes' and 'Scheduled Castes and Scheduled
Tribes' if the appointments were to be made according to the panel
G submitted by the High Court .. It was asserted that the Government
viewed with concern the proceedings before the High Court and felt
that there should be no room for such challenge. The Government
therefore decided to reject the panel of names forwarded by the High
Court by cancelling the aforesaid notification and all the steps taken
pursuant thereto. It was further decided to issue a fresh notification
H inviting applications from the members of the bar for appointment as
STATI; OF KERALA v. A. LAKSHMJKUTTY (SEN, J.J 149 ·

District Judges for being placed before the High Court to prepare a A
fresh panel of names. Iri essence, the contention is that the State
Government has the final voice in the appointment of District Judges
under Art. 233( I) 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
""J·.
public interest. The material portion of the ,return irt the form of a B
counter-affidavit by the Commissioner and Secretary to the State
Government, Home Department reads as follows:

"The Government reviewed their recommendation on
28.2. 1985 and decided not to appoint anybody as recom-
mended earlier, and further decided to invite fresh applica- C
lions for being placed before the High Court to prepare a
--~r fesh panel for recruitment to the post of District Judges.
The non-representation of Scheduled Castes, Latin-
Catholics, Anglo-Indians and Other Backward Commu-
nities in the panel of names submitted by the High Court
weighed with the Government in taking the above decision. 0
Further it is not healthy to give room for such challenges as
those made before this Hon'ble Court on the panel by in-
terested parties. Hence the decision was taken reviewing
the earlier recommendation. Fresh applications will be in-
vited and the High Court will be requested to recommend
fresh panel for recruitment to the post of District Judges." E

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-cif the Constitution
, provides that one-third of the permanent places of District J. udges shall
'be filled or reserved to be filled by direct recruitment from the bar. F
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 reser\lation of posts, embodied in IT. 14. to 17 of pa~ II of ·
the Kerala State & Subordinate Services Rules, 1958.

For the sake of com(lleteness, we would also refer to the 'scheme G
of communal reservation by a system of rotation or sub-rotation en-
grafted in IT. 14 to 17 of the Kerala State & Subordinate Services
Rules, 1958. These are special provisions made by the State uniler Art.
14 read with Art. 16(4) of the Constitution for the reservation of
appointments or posts in favour of_ the backward classes which, in the
opinion of the State, are not adequately represented in the services H
150 SUPREME COURT REPORTS . (1987] 1 S.C.R.

A under the State. These rules are meant to ensure fair representation to )
the Higher judicial service of the State, to the members of the
Scheduled Castes and Scheduled Tribes and to the Other Backward
Classes. R. 14 insofar as material, reads:

"14. Reservation of appointments: Where the spedal rules
B 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 notifica-
tion in the Gazette declared that the principle of reserva- __,....f,
lion of appointments shall apply to such service, class or
c category, appointments by direct recruitment to such
service, class or category shall be made' on the following
basis:-

(a) The unit of appointment for the purpose of this rule
shall be 20, of which two shall be reserved for Scheduled
D Castes and Scheduled Tribes and S shall be reserved for the
Other Backward Classes and the remaining 10 shall be fil-
led on the basis of merit.

(b) The claims of members of Scheduled Castes and
Scheduled Tribes and Other Backward Classes shalll also be
E considered for the appointments which shall be filled on
the basis of merit and where a candidate belonging to a
Sched.uled 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

1
Other Backward Classes as the case may be, shall not in ,
F 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.

G I. Open competition.
2. Ezhavas, Thiyyas and Billavas.
- _.,
3. Open competition.
4. Scheduled Castes.
H 5. Open competition.
STATE OF KERALA v. A. LAKSHMIKUTfY (SEN, J.) 15 l

--( 6. Muslims.
A
7. Open competition.
8. Latin-Cathplics and Anglo-Indians.
9. Open competition.
10. Other Backward Classes. B
11. Open competition.
12, Scheduled Castes.
13. Open competition.
14. Ezhavas, Thiyyas and Billavas.
c
15. Open competition.
-{
16. Muslims.
17. Open competition.
18. Ezhavas, Thiyyas and Billavas. D
19. Open competition.
20. Viswakannas. ''

Under r. 14(a) there .is 50% reservation of posts for the back-
ward classes under Art. 16(4) i.e. for the Scheduled Castes and E
Scheduled Tribes and Other Backward Classes. Whichever be the
method adopted for selecting candidates as per the rules of rotation
under r. 14(c) 'or sub-rotation under r. 17(2), the mandate of r. 14(b) is
clear and specific. The members of Scheduled Castes and Scheduled
Tribes and Other Backward Classes have the right to be considered for
appointments which shall be filled on the basis of merit. Where a F
candidate belonging to such Backward Classes is selected .on the basis
of merits, such selection would not prejudice their claim to the legiti-
mate 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) G
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 tl)e
post filled by a suitable candidate from the community or .group of
communities immediately next to the passed over community or group
in the order of rotation. R . .15(b) enjoins that jf .a suitable ceandidate is H
152 SUPREME COURT REPORTS [1987] 1 S.C.R.

A not available for selection fror,n the group of communities classified as )
'Scheduled Castes', in the turn allotted for such a group in the anne-
xure, 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
B Tribes is available, the vacancy has to be filled by open competition.
R. 15( c) provides for restoration of the benefit of the turn forfeited at '>
the earliest opportunity. Proviso thereto however enjoins that the re-
storation 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. J:
R. 16 provides for sub-rotation among major groups of other back-..!"''
C ward classes. R. 17( l) 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 Ill to Part I of the
_".>
Rules and there are 73 communities or groups divided into 8 categories
specified iri r. 17(1). Categories I to 7 are Ezhavas and Thiyyas,
Muslims, Latin-Catholics and Anglo-Indians, Nadars, Scheduled
D Castes converts to Christianity, Viswakarmas and Dhooravas. All
other backward classes put together constitute the 8th category. R.
17(2) provides for sub-rotation among the other backward classes. We
need not go into details of the 40 turns in which the positions reserved
for other backward classes have to be distributed.

E 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-Catholies and Anglo-Indians (2) Open com-
petition (3) Other backward classes i.e. other than those mentioned in
items ·l to 7 of r. 17{ 1)(4) Open competition, and (5) Scheduled Castes
and Scheduled Tribes, appropriate to 8th, 10th and 12th turns in the
F 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 pe1It10ns the learned Judges held that
although they could not subject the deliberations of the Council of
G Ministers. to judicial review and Art. 163(3) of the Constitution pre-
cludes an inquiry as to the nature of the advice given by the Council of
Ministers to the Governor, still there was need for affirmative action
by the issue of a writ in the nature of mandamus or in the words of the
High Court, there has been 'flagrant and wrongful refusal' on the part
of the State Government to exercise jurisdiction. It held relying on the
H celebrated decision in Padfield v. Minister of Agriculture, Fisheries and
STATE OF KERALA v. A. LAKSHMIKUITY [SEN, J.] 153

Food, LR [!968] AC 997 and the several decisions of this Court and the A
House of Lords that although the Governor i.e. the State Government
was not bound to accept the recommendations of the High Court nor
was he bound to give reasons for-not accepting the names recommen-
ded by the High Court, nevertheless the Council of Ministers could not
unilaterally reject the panel submitted by the High Court without
obtaining the views of tl,le High Court. Consultation with the High B
Court was not an empty formality. It held that there was po full and
effective consultation with the High Court before the ·state Govern-
ment decided not to appoint anybody as a District Judge from the
A. panel forwarded by the High Court under Art. 233(1). The reasons
given by the Chief Minister for rejection of the panel of names recom-
mended by the High Court viz. non-representation of Latin-Catholics c
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. !5(a) which D
incorporated the rule of passing over like any other rules. Abandon-
ment of a scheme of recruitment and the cancellation of the panel
submitted by the High Court is therefore foreign to and not contemp-
lated by the scheme if a suitable candidate is not available from a
particular community or group of communities. R. !5(a) merely con-
templates that such community or group of communities should be E
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 tum forfeited. It then went on to say that the State

t , Government had no power to keep one vacancy open ,presumably to
·· fill up that post by a suitable candidate from· the gioup of Latin- F
Catholics and Anglo-Indians. The governmental action was wholly
ma/a 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 re\X)mmended by,
the High Court. The Government refused to appoint respondent no. 1
·on the pretext that it had decided to keep one post vacant i.e. 8th tum G
in the cycle of rotation. If that be so, it could not have decided to
-"1- . 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 ta~en on January 30, 1985 was therefore influenced by ex-
traneous considerations which it ought not to have taken into account
and therefore it was liable to be struck down. The subsequent decision .H
154 SUPREME COURT REPORTS (1987] 1 S.C.R.

A 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 ( t) of the Constitution, .there was an overt
attempt on the part of the Government to appoint persons from out-
8
side 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 judgm1mt dis~ __ /'-
missed the writ petition filed by Ms. Mary Teresa Dias, the Lahn-
e Catholic candidate, on the ground inter-a/ia 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 Amma and the writ petition of K.
D 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 candi-
dates. In his writ petition K. Sadanandan, a scheduled caste candidate,
questioned the method of selection adopted by the High Court by
interview. Both Smt. N. Subhadra Aroma and K. Sadanandan prefer-
E red appeals to this Court by special leave. In N. Subhadra Amma v.
State of Kera/a & Ors., (C.A. No. 4163/85 decided on September 10,
1985) this Court allowed the appeal of N. Subhadra Aroma, set aside
the judgment of the High Court and directed the High Court to de-
termine whether she belonged to a scheduled caste or not, and in case
sh~ happened to be a scheduled caste, her claim for appointment to the
F post reserved for scheduled caste candidates be oonsidered. S.imilarly,
in K. Sadanandan v. State of Kera/a & Ors., (C.A. No. 5693/85 de- - ·
cided on December 17, 1985) this Court allowed the appeal of K.
1
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 oonsidered afresh. The directions issued by this
G Court in N. Subhadra Amma's and K. Sadanandan's cases directing
the High Court to consider their names for appointment to the post
reserved for members of the scheduled castes must necessarily disturb
the panel drawn up by the High Court. In view of the directions issued
by this Court which have to be obeyed by the High Court, the entire
question has to be considered afresh in the light of the subs.,quent
H developments.
STATE OF KERALA v. A. LAKSHMIKUTTY (SEN, J.] 155

Various contentions have been advanced by learned counsel for A
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] l SCR 77, A. Panduranga Rao
v. State of Andhra Pradesh & Ors., [ 1976] l SCR 620, Mani Subratlain B.
:-J.. v. State of Haryana & Ors., [ 1977] 2 SCR 36 l and M.M. Gupta & Ors.
v. State of Jammu & Kashmir & Ors., [ 1983] l SCR 593.

. After the conclusion of the hearing, the State Government on
"~-our request placed a copy of the letter of the Acting Chief Justice
dated June 14, 1984 addressed to the Chief Minister, which was not on C
record. In the letter he stated that he was enclosing a panel of 14.
'•:. names considered suitable by the High Court for appointment of Dis-
trict 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 D
from. the 'Latin-Catholics and Anglo-Indians' group and so
the first vacancy will have to be allotted, under rule l5(a)
of the Kerala State and Subordinate Services Rules, 1958,
to 'Other Backward Classes' in the lOth cycle of rotation
taking into account the Explanation to the annexure. The
panel includes two candidates belonging to 'Other Back- E
ward Classes' namely, Shri Rajaf!pan_ Asari who is a Vis;
wakarma and Smt. K.J. Teresa who is a Scheduled Caste
convert. But these two communities are not included in
item 8 in rule 17( l) of the Rules. Tuer~ 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 F
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 G
Ezhava candidate appropriate to the 14th rotation is.
already approved for, this third reserved vacancy has to be
filled up from among 'Muslims' (16th rotation)."

In these appeals, three main questions arise for determination,
namely: (i) Whether the High Court'was justified in holding that the H
156 SUPREME COURT REPORTS [1987] I S.C.R.

A Council of Ministers could not have at the subsequent meeting held on
February 28, 1985 'reviewed' the situation and decided not to make the
appointments contrary to the earlier decision taken at the Cabinet
meeting held on January 30, 1985 to make such appointments on the
recommendation of the High Court. (ii) Whether the High Court
could have issue a writ or direction in the nature of mandamus under
B Art. 226 directing the State Government, meaning the Governor, to
appoint respondents Nos. l and 3-6 as District Judges from the bar ):
· under Art. 233( l) of the Constitution in accordance with the recom-
mendation of the High Court, and contrary to the decision of the
Council of Ministers taken on February 28, 1985 not to appoint any- '
body from the panel forwarded by the High Court. (iii) If the High _/--
C Court were of the view that there was no full and effective consultation
by the S_tate Government with the High Court as enjoined by Art.
233( l) 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 mand.amus requiring the
D State Government to convey its views to the High Co1Jrt as reflected in
the Chief Minister's letter dated March -1. 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
E Government and the High Court in the matter of appointment of
District Judges under Art. 233( 1) of the Constitution must be real. full
anll effective. To make the consultation effective. there has to be an
inter-change of views between the High Court and the State Govern-
ment, 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
F Government were simply to give lip service to the principle of consul-
tation and depart from the advice of the High Court in making judicial
1
appointments without referring back to the High Court. the difficulties
which prevent the Government from accepting.its advice. the consulta-
tion would not be effective and any appointment of a person as a
District Judge by direct recruitment from the bar or by promotion
G from the judicial services under Art. ~33( 1) would be invalid. Unless.
the State Government were to convey to the High Court the diffi-
culties which prevent the Government from accepting its advice by
referring back the matter the consultation would not be effective. 1

Indubitably. the power of appointment of persons to be District
H Judges conferred on the Governor. meaning the State Government.
STATE OF KERALA v. A. LAKSHMIKUTTY [SEN, J.] 157

---....:· under Art. 233(1) in consultation with the High Courtis an executive A
function. It has been settled by a long line of decisions of this Court
starting from Chandra Mohan 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( l) in the matter of appointment of District Judges is B
---Y conditioned by consultation with the exercise of the power that the
power can only be exercised in consultation with the High Court.
· Appointment of persons to be, and the posting and promotion
·~.of, District Judges in any State, shall be made by the Governor of the
State under Art. 233( l) in consultation with the High Court exercising
jurisdiction in relation to such State. Sub-Art. (2) thereof provides C
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 recom-
mended by the High Court for appointment. It is therefore obvious
that eligibility of appointment of perscms to be District Judges by
D
direct recruitment from amongst the members of the bar depends
entirely on the recommendation of the High Court. The State Govern-
ment 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.,
f... · (supra) has established the principle as a rule of law, that consultation
E
between the Governor and the High Court in the matter of appoint-
ment of District Judges under Art. 233( l) 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 co,urt observed: '
·• "The exercise of the power of appointment by the Gover- ·F
nor is conditioned by hi.s consultation with the High Court,
that is to say, he can only appoint a person to the post of
District Judge .in consultation with the High Court. The
object of consultation is apparent. The High Court is ex-
pected to know better than the Governor in regard to the G
suitability or other\vise of a person, belonging either to the
"Judicial service" or to the Bar, to be,appointed as a Dis-
~ trict 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.
... *** H
•
158 SUPREME COURT REPORTS [1987] 1 S.C.R.

These provisions indicate that the duty to consult is so in-
A
tegrated with the exercise of the power that the power can
be exercised only in consultation with the person or
persons desigt1ated therein."

To the same effect are the decisions in Chandramauleshwar Prasad v.
B 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).
___/·
1n A. Panduranga Rao v. State of Andhra Pradesh & Ors.,
c (supra) it was observed:
"Government was not bound to accept all the recommen-
dations 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
D
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 ap-
pointment and for good reasons it could reject the High
Court's recommendations. In either event it could ask the
E

1
High Court to make more recommendations in place of
those who have been rejected."

In M.M. Gupta & Ors. v. State of Jarrtmu & Kashmir & Ors.,
(supra) Amarendra Nath Sen, J. speaking for himself and Bhagwati &
F Pathak, JJ. while dealing with the appointment of persons to be Dis-
trict Judges by the Governor under Art. '233( l), 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 i111depend-
G ence of the judiciary in conformity with the requirements of the Con-
stitution. We fully endorse the principle deduced by him from the
various authorities of this Court in these words:

"Normally, as a matter of rule, the recommendations made
by the High 'Court for the appointment of a District Judge
H should be accepted by the State Government and the Gover-
STATE OF KERALA v. A. LAKSHMIKUTrY [SEN, J.I 159

nor should act on the same. If in any particular case, the A
State Government for good and weighty reasons finds it'
difficult to accept the recommendations of the High Court,
the State Government should communicate iis views to the
High Court and the State Government must have complete
and effective consultation with the High Court in the mat-
ter. There can be no doubt that if the High Court is con- B
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 re-
' .• commendations made by the HiilJi Court."
·1'--
(Emphasis supplied)
c
The Constitution of India provides in Arts. 124(2), 217( l) and
233( l)' 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 bet-
ween the executive and the judiciary. The word 'consultation' in Art. D
233( 1) must bear the same meaning as in these other provisions. ·The
plain meaning of the word 'consult' as given in Shorter Oxford English
Dictionary, Vol. ·1 at' p. 409 is: 'to take counsel together, deliberate,
confer, and the word 'consultation' means:'the action of consulting or
.... taking counsel together; deliberation, conference. The word 'consulta-
tion' therefore implies a conference of two or more persons or an E
impact of two or more minds in respect of a topic in order to enable
them to evolve a oorrect, or at least, a satisfactory solution. In the
words of Subba Rao, CJ. R. Pushpam v. State of Madras, AIR 1953
Mad. 392 tjted by Chandrachud, J. in Shethi's case:

"In order that the two minds may be able to confer and F
produce a mutual impact, it is essential. that each must have
for its consideration full and identical facts, which can at
once constitute both the source and foundation' of the final
decision."

The concept of consultation in Art. 222( l) has been delineated by G
Chandrachud, J. in Union of India v. Sankalchand Himatlal Sheth &
Anr., [ 1977] 4 SCC 193, in his own illuminating language:

"It casts an absolute obligation on the President to cbnsult
the Chief Justice of India before transferring a Judge from
one High Court to another. The word 'may' in Article 1-1
)
160 SUPREME COURT REPORTS (1987] 1 S.C.R.

222(1) qualifies the last clause which refers to the transfer J"
of a Judge and rioi the intervening clause which refers to
consultation with the Chief Justice of India. The President
may or may not transfer a Judge from one High Court to
another. He is not compelled to do so. But if he proposes to
transfer a Judge, he must consult the Chief Justice of India
B before transferring the Judge.· That is in the nature of a
condition precedent to the actual transfer of the Judge. In ·z-
other words, the transfer of a High Court Judge to another
High Court cannot become effective unless the Chief
Justice of India is consulted by the President in behalf of ~
the proposed transfer. Indeed, it is euphemistic to talk in -
terms of effectiveness, because the transfer of a High Court
c Judge to another High Court is unconstitutional unless, be-
fore transferring the Judge, the President consults the Chief ).
Justice of India.

''* "* '"
...
D
(T)here can be no purposeful consideration of a matter,. in
the absence of facts and circumstances on the basis of
which alone the nature of the problem involved can be
appreciated and the right decision taken. It must, therefore,
follow that while consulting the Chief Justice, the President
E must make the relevant data available to him on the basis of
which he can offer to the President the benefit of his con-
sidered 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
F 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
G which are necessary to arrive at a proper conciusion are
parts of the same process and are complementary to each
other. The faithful observance of these may well earn a
handsome dividend useful to the administration of justice.
-,'
Consultation within the meaning of Article 222(1), there-
fore, means full and effective, not formal or unproductive
H consultation.
STATE OF KERALA v. A. LAKSHMJKUTTY (SEN, J.] 161

........ Thus, deliberation is the· quintessence of consul- A
tation." (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 B
State Government, meaning the Governor, to appoint respondents
'-f.. Nos. I and 3-6 as District Judges under Art. 233( I) in accordance with
the recommendation of the High Court, and contrary to the decision of
the Council of Ministers taken on February 28, 1985. He argues that
,...,.._,~the High Court exceeded its jurisdiction in subjecting the process of
decision-making by the Council of Ministers to judicial review and
questions the propriety of the observations made by the High Court
c
that the reasons furnished in the letter of the Chief Minister dated
March 4, 1985 were no reasons at all and that the governmental action
was totally arbitrary, irrational and improper. He next argues that the
appointment of District Judges by the Governor in consultation with
the High Court under Art. 233( I) is purely an executive function and D
that the Governor is not bound to accept the advice of the High Court.
Jn support of the contention, reliance is placed on the decision of this
Court in Mani Subrat Jain v. State of Haryan,a & Ors., (supra)". In any
event, no writ of mandamus lies in the cas_e of non-selection to a post.
According to the learned counsel, it was open to the Government not
to make any appointments at all from the panel of names forwarded by E
the High Court if the Governmen_t was of the opinion that the making
of such appointments would result in non-representation of certain
backward communities or groups. It is said that while adjudging the
·suitability of candidates was no doubt a function of the High Court

t
but. at the same time, the Government had the duty to ensure that the
, appointment of District Judges from the bar under Art. 233( I)" in F
' accordance with the panel prepared by the High Court, was in con-
formity with r. :?(b) of. the Kerala State Higher Judicial Service Rules
· i.e. in consonance with the scheme of communal reservation. In subst-
ance, 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 G
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 requiring the State Govern- H
162 SUPREME COURT REPORTS [1987] I S.C.R.

A 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 candi-
dates from the communities or groups passed over before taking a final
decision in the matter. There is, in our opinion, sufficient force in
these submissions. -

B
Arguments of Sri T.S.Krishnamoorthy Iyer, learned counsel
appearing for respondents nos. :>-.{) were two-fold. His main submis-
sion is that according to the decision of this Court in Shamsher Singh &
Anr. v. State of Punjab, [ 1975] I SCR 814 the Governor must act on
the advice of the Council of Ministers. According to him, there was no--.A·
occasion for the Council of Ministers to have reviewed the situation '
c and decided not to appoint anybody from the panel contrary to the
decision taken on January 30, 1985, which was constitutionally
impermissible. As the sequence of events would show the immediate
provocation for the subsequent decision of the Cabinet taken on
February 28, 1985 was the issue of an ad-interim prohibitory order by
D the High Court on February 21, 1985 restraining the State Govern-
ment 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 tliem as·
District Judges on the recommendation of the High Court. From the
E news item of the press conference held by the Chief Minister on
January 31, 1985 as ·reported in the Mathrubhoomy and other
Malyalam newspapers, it was amply clear that the Government had
decided to fill up four posts and keep one vacancy open presumably for
the Latin-Catholic candidate since she had filed a writ petition in the
High Court. It is submitted that all the formalities were complete and
F 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( I). Alternatively, the learned counsel .contends that if the
Government felt that there were unsurmountable difficulties in mak'
ing the appointments according to the panel drawn up by the High
Court due to , non-representation of Latin-Catholics and Arnglo-
G Indians, Other Backward Classes and Scheduled Castes and Scheduled
Tribes as expressed by the Chief Minister in his letter dated Marc:h 4.
1985, and as reiterated in the return filed in the High Court by the
Secretary to the Government, Home Department, the State Govern-
ment should have referred back the matter to the High Court requiring I
the High Court to reconsider the question of selection of candidates.
Ii In essence, the contention is that the subsequent decision of the
STATE OF KERALA v. A. LAKSHMIKUTIY [SEN, J.] 163

Council of Ministers taken on February 28, 1985 was liable to be A
quashed for want of consultation with the High Court as required by
Art. 233( l), and the learned counsel suggested that we should remit
,back the matter to the State Government with necessary directions. As
to the power of the High Court to grant a writ in the nature of man-
damus, he contends that respondents nos. 3-6 having been recom-
mended by the High Court had a legitimate expectation to be ap- B
pointed as District Judges from the bar under Art. 233( I) and there-
fore had the right to approach the High Court for grant of necessary
n;lief.

Argument of Sri Subramanion Poti, learned counsel appearing
for respondent no. l was that the reasons furnished by the Chief Minis-
ter in his letter dateci March 4, 1985 were no reasons at all and that the
c
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 applica-
tions. He .submits that r. l5(a) contemplates that if a suitable candi- D
date was not available, the vacancy should be filled by a candidate
belonging to the community or group immediately next to the passed
over community or group. The learned counsel contends that it was
not suggested that the panel of names drawn up by the High Court was
not in conformity with the rules of communal reservation laid down in
rr. 14 to 17 of the Rules. If no candidates were available· from the E
communities Latin-Catholics and Anglo-Indians. Other Backward
Classes and Scheduled Castes and Scheduled Tribes. 8th. !0th and 12
turns in the cycle of rotation. the vacancy had to be filled up by respon-
dent No. I Smt. A. Lakshmikutty. an Ezhava community candidate.
14th in the cycle of rotation. Accordi- g to him. there were no 'good
and weighty reasons' for the Council of Mini.sters in withholding from .F
the Governor the recommendation made by the High Court wlticlt 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 noi'withhold
information from the Governor. Alternatively. he adopted the argu-
ment of Sri T.S. Krishnamoorthy Iyer and contended that if it be held
that there was no full and effective consultation between the High G
Court and the State Government. the matter be remitted back to the
State Government for reconsideration of the whole question.

We1ind 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 H
164 SUPREME COURT REPORTS (1987] 1 S.C.R.

A 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, !985 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
B disclosed by the Council of Ministers in his letter dated March 4, 1985 '
viz. due to non-representation of candidates belonging to Latin- ·•
Catholics & Anglo-Indians, Other Backward Classes and Scheduled
Castes and Scheduled Tribes, 8th, LOth and 12th turns in the cycle of
rotation, was 'no reason at all'. We are satisfied that the High Cour.!._;>f
could not have upon this basis issued a writ of mandamus directing the
C State Government i.e. the Governor to appoint respondents Nos. l
and 3-6 as District Judges under Art. 233( I) 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 advia~ of the
Council of Ministers and thereby entered into the process of decision-
making which was constitutionally impermissible.
D
The Governor has to act on the advice of the Council of Minis-
ters under Art. 163( I) in the matter of appointment of District Judges
under Art. 233( l) 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 -~
E under Art. 233( I) is purely an. executive function. The High Court
therefore had no authority or jurisdiction to issue,any writ of man-
damus of the kind complained of. If was certainly not open to the High
Court to embark upon an inquiry as to the reasons which_impeHed the
Council of Ministers at the meeting held on February 28, 1985 t o 1
review the decision taken on January 30, 1985 and decide not to ap-
F point anyone as a District Judge under Art. 233( l) from the panel of
names drawn up by the High Court. It was also not justified in observ-
ing that the reasons as disclosed by the Chief Minister in his letter
dated March 4, 1985, on the basis of which the Council of Minislers on
February 28, 1985 decided not to appoint respondents Nos. I and 3-6
as District Judges on the recommendation of the High Court viz. due
G 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
H make certain appointment of persons to be District Judges when the
STATE OF KERALA v. A. LAKSHMIKUTfY (SEN, J.] 165

---\ Council of Ministers had taken a decision to the contrary. According A
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 im-
permissible._ In our opinion, the contention must prevail.

We must refer to the case of Mani Subrat Jain v. State of Haryana B
._, & Ors., (supra) which was relied upon by learned counsel for the State
Government. It is weU-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 man-
.,. I -- damus will lie. The legal right to enforce the performance of a duty
must be in the applicant himself. In general, therefore, the Court will c
only enforce the performance of statutory duties by public bodies on
application of a person who can show tha{he has himself a legal right
to insist on such performance. Applying the principles stated in Hals-
bury's Laws of England, 4th edn., vol. 1, paragarph 122, this Court
observed that a person whose name had been recommended for ap-
pointment as a District Judge by the High Court under Art. 233( l) had D
no legal right to the post, nor was the Governor bound to act on the
advice of the High Court and therefore he could not ask for a man-
damus. It was observed:

"It is elementary though it is to be restated that no one can
ask for a mandamus without a legal right. E

** ** **

The initial appointment of District Judges under Article
' Government
233 is within the exclusive jurisdiction of the
after consultation with the High Court. The Governor is F
no~ 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.

'' ** ** G

(T)he consultation of the Governor with 1he High Court
does not mean that the Governor must accept whatever
advice of recommendation _is given by the High Court.
Article 233 requires that the Governor should obtain from
the High Court its views on the merits and demerits of H
•
166 SUPREME COURT REPORTS [1987] 1 S.C.R.

persons selected.for promotion and direct recruitment."
A
The existence of a right is the foundation of the jurisdiction of a Court
to issue a writ of·mandamus. The present trend of judicial opinion
appears to be that in the case of non-selection to a post, no writ of
mandamus lies. We however do not wish to rest the decision on the
B technical ground.

In our considered opinion, the decision of these appeals must
ultimately tum on the question whether there was real, full and effec-
tive consultation by the Governor with the High Court within the~
meaning of Art. 233(1) before the State Government reached a deci: !.
sion to reject' the panel forwarded by the High Court. As well-settled,
C 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
i\rt. 233( I) or_not at all. Normally, as a matter of rule, the recommen-
dations of the High Court for the appointment of a District Judge
D should be accepted by the State Government and the Governor should
act on the same. If, in any particular case, the State Government for
'good and weighty reasons' finds it difficult to accept the recommenda-·
tions of the; High Court, the State Government should communicate its
views to tlie High Court and must have complete and effective consul-
tation with the High Court in the matter. It must therefore follow that
E before rejecting· the panel forwarded by the High Court, the State
Government should have conveyed its views to the High Court to elicit
its opinion, It should have taken the High Court into confidence and
placed before it- the difficulties that faced the Government in acting
upon the recommendations, namely, that it would result in non-re-,1
presentation of important communities like Latin-Catholics and
F Anglo-Indians, Other Backward Classes and Scheduled Castes and
Scheduled Tribes, as expressed by the Chief Minister in his letter
dated March 4, 1985. The fulfilment by the Governor of his constitu-
tional obligation to 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,
G 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 •
coµld'be appreciated and the right decision taken. It must accordingly I
be held that the State Government was wrong in taking a unilateral
1

decision to cancel all steps taken in pursuance of the notification dated
H September 24, 1983 and to issue a fresh notification inviting appHca-
STATE OF KERALA v. A. LAKSHMIKi.JTTY [SEN, J.] 167

~ tions, without taking the High Court into confidence. In the premises, A
the pro.per 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 ~he High Court the facts i.e. the difficulties as expressed in the
letter of the Chief Minister dated March 4, 1985 to elicit its opinion.

If the matter rested at that, there would be no difficulty, but the B
High Court has gone a step further. The issuance of a writ of man'
damus by the High Court directing the State Government i.e.· the
Governor to act on the recommendation of tl)e 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 con-
stitutionally impermissible. Although the High Court was not oblivi- C
ous 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 predudes an
inquiry as to the nature of the advice given ~y 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 P,ropri- D
ety 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 l, 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 E
. 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. l .and 3-6 as District Judges on the
recommendation of the High Court viz. due to non-representation of
candidates belonging to Latin-Catholics and Anglo-Indians, Other
Backward Classes and Scheduled Castes and'5cheduled Tribes, were · F
no reasons at all, and that the action of the State Government in
rejecting the panel sent by the High Court was totally arbitrary, iilegal
and improper, it further observed that" 'there was an overt attempt on
the part of the State Government to appoint persons from outsiae ihe
panel' wl\ich was constitutionally impermissible, and relied qn the
proposition laid down in Padfied's case that 'if the Minister gave no G
reasons, the Court might infer that he had no good reasons to give'. It
accordingly held that the action of the. State Government had no
rational. nexus to the object sought to be achieved i.e. implementation
of the scheme of communal reserVation laid down in rr. 14 to 17 of the
Kerala State & Subordinate Services Rules made applicable by Note
beneath r. 2(b) of the Kerala State Higher Judicial Service Rules. H
168 SUPREME COURT REPORTS (1987] I S.C.R.

A 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 po Ii ii cal colour, the Court cannot fold its hands in
B despair and declare "Judicial hands off'. So long as a ques-
tion 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_ ff:·
of government, be it the executive or the legislature or the '
judiciary, derives its authority from the Constitution and it
c
has to act within the limits of its authority."

Following this line of reasoning, the High Court observes that
'every activity of the Government must be informed with reason and
every action taken by the State Government must be in public interest
D and the action would be 'invalid if it is unreasonable or lacking the
quality of publicinterest'. 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 wrii of Mandamus complained of the reason
for this is obvious. Our Constitution does not envisage a rigid separa-
E tion of powers. For example, the power to promulgate on Ordinance
which, undisputedly, is a legislative power, is conferred on the execu-
tive under Art. 123. Even though this is so, the respective powers of
the three wings of the State are well-defined with the object that each
wing R}USt function within the field earmarked for it. The object of
such demarcation is to exclude the possibility of encroachment on the
F field earmarked for one wing by the other or others. As long as each
wing of the State functions within the field carved out and shows due
deference for the other two branches, there would arise no difficulty in
the working of the Constitution. But the trouble-arises when one wing
of the State tries to encroach on the field reserved for the other. It is in
the above context that special responsibility devolves upon the Judges
G to avoid an over-activist approach and to erisure that they do not
trespass within the spheres earmarked for the other two branches of
the State. In our opinion, the High Court could not intervene at astage
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
H nature of mandamus requiring the State Government to refer back the
STATE OF KERALA v. A. LAKSHMIKUTrY (SEN, J.] 169

matter to the High Court for reconsideration in the event the High · A
Court cam.e 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 B
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 unhap-
i·- piness 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- , c
Indians, Other Backward Classes and Scheduled Castes and Scheduled
Tribes. Further, as the vacancies that would occur for direct recruit-
ment in the cadre of District Judges would only be few, the usual
procedure of passing over communities could not be made good in the
near future, and that the adoption of that course would cause neglect
of very backward communities for a long time. May be, the Govern- D
ment thought, albeit wrongly, that the principle of passing over em-
bodied in rule 15(a) of the Rules being an integral part of the process
of appointment, the ultimate decision on the question whether re-
course should be had to that principle was one for the Government to
take. We are quite clear in our mind that the Government was misle,j'
on that aspect. E

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 there-
. fore the Government being the appointment authority would have the
·,right to take a decision in the matter. But the Government failed to
appreciate that the High Court plays a decisive role in the matter of F
appointment of District Judges under Art. 233( I). Adjudging suitabil-
it}' of a candidate for appointment ·as a District Judge under A_rt.
233( I) is a function of the High Court which must necessarily imply
that if the High Court finds thatthe 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 lri the cycle of G
rotation. It must logically follow, as a necessary consequence that it is
~- for the.High Court to Jlecide 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 vaeancy be filled up from the community or
group immediately next to the passed.over community or gro11p in the
order of rotation or sub-rotation provided in r. 14(c). All that the State H
170 SUPREME COURT REPORTS (1987) 1 S.C.R.

A 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 assume\)
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.
B
There was quite some discussipn 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 · .l
the High Court and to issue a fresh notification inviting applications._/\·
The anwer to the question is self-evident. Merely because the Chief
.c Minister bpefed the press on January 31, 1985 as regards the decision
taken at the meeting of the Council of Ministers held on the previous >r
day and the news of the press conference was published in the Mathru-
bhoom and other Malyalam newspapers to the effect that the Govern-
ment 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
D required by Art. 166( I). 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( I). Whatever the Council of Ministers may say in regard to a
particular matter, does not become the action of the State Govern- -(·
E ment 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,
the.re are two requirements to be ful-filled, namely: (I) The order o f 1
the State Government had to be expressed in the name of the Gover- .
nor as required by Art. 166( I), and (2) It has to be communicated to.
F the persons concerned. See: State of Punjab v. Sodhi Sukhdev Singh,
(1961) 2 SCR 371 and Bachhinar 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( I). it could not be said
G to be an order of the State Government. Until then, the earlier deci-
sion 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
H discord between the High Court and the State Government over the
STATE OF KERALA v. A. LAKSHMIKUTIY [SEN, J.l 171

direct reCruitment of District Judges from the bar under Art. 233( 1). A
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. ·
B
At our request, the Registrar of the Higb Court has fumi~hed 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 Higber Judicial
T- Service Rules, one-third of the permanent posts .of District Judges
including Selection Grade District Judges has to be filled up or re- c
served to be filled up'by direct recruitment. The number of permanent
places of District Judges is 29. There is only one District Judge at
present who is a direct recruit. The number of posts has increased with
the creation of three posts of Motor Accidents Claims Tribunals at
Palghat, Manjeri and Tellicheri which started functioning from June 1,
D
1981, and became permanent by June l, 1986. Thus the number of
permanent posts of District Judges has gone up to 32, Therefore, there·
arises the need for filling up ten posts of District Judges by direct
recruitment. Even after the filling up ·of five vacancies with which we
are concerned., there would still remain scope for selecting four more
District Judges from the bar. With the elevation of Sri K.T. Thomas
E
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
F
indicated herein. The judgment and order of-the Higb Court directing
· the issuance of a writ of mandamus commanding the State Govern-
ment to appoint respondents Nos. 1 and 3-6 as District Judges under
· Art. 233( 1) of the Constitution are set aside. We instead direct that a
writ in the nature of mandamus shall be issued to the State. Govern-
ment requiring it to communicate its views to the Higb Court to elicit
its opinion within six weeks from today and, if necessary, make a fresh
effort to find suitable candidates from the communities or groups of
communities passed over before taking a final decision in the matter.
In consequence, the State Government's decision notto make appoin-
tments from the panel fonyarded by the Higb Court and to re-notify
the vacancies must stand quashed. The Higb Court shall also comply H
172 SUPREME COURT REPORTS [ 1987) 1 S.C.R.

A with the directions issued by this Court in two cases of Smt. N. Sub-
hadra Amma and K. Sadanandan. We make it clear that the choice of
candidates lies entirely with the High Court.

There shall be no order as to costs.

B S.R. Appeals allowed.