# STATE OF KERALA v. A. LAKSHMIKU1TY & ORS

- **Citation:** [1987] 1 S.C.R. 136
- **Court:** Supreme Court of India
- **Decided:** 1986-11-10
- **Bench:** A.P. Sen, B.C. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-kerala-v-a-lakshmiku1ty-ors-9332
- **Pages:** 37

## Headnote

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
·
D
members of the bar under Article 233(1) of the Constitution-Constitution 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.
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 annexure, 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 annexure, 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 selection in any of the two groups namely, Scheduled Castes and Scheduled
Tribes is available, the vacancy has to be filled by open competition.
Rule 15(c) provides for restoration of the benefit of the tum forfeited at
the earliest opportunity. Proviso thereto however enjoins that the restoH
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

## Text

_Characters 0–39,978 of 95,665. This is a partial read: ask again with offset=39978 for what follows._

A
B
STATE OF KERALA
v.
A. LAKSHMIKU1TY & ORS.
NOVEMBER 10, 1986
[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
·
D
members of the bar under Article 233(1) of the Constitution-Constitution 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.
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 annexure, 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 annexure, 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 selection in any of the two groups namely, Scheduled Castes and Scheduled
Tribes is available, the vacancy has to be filled by open competition.
Rule 15(c) provides for restoration of the benefit of the tum forfeited at
the earliest opportunity. Proviso thereto however enjoins that the restoH
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
B and a further direction to the High 'Court to forward her name for
appointment as a District Judge. The said writ petition was however
dismissed later on.
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 belonging 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!
E
being made out.
·
F
· . 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· · ,---1
cruitment of District Judges from the bar afresh and decided not to
.J
appoint anybody from the panel of names recommended by the High
Court due to non-representation of 'Latin-Catholics and AngloIndians' 'Other Backward Classes' and 'Scheduled Castes and
Scheduled Tribes', 8th, 10th, and 12th turns in the cycle of 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 unfettered 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
The fulfilment by the Governor of his constitutional obligation to
H
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 opinion on a consideration of the facts and circumstances on the basis of
B
which alone the nature of the problem could be appreciated and the
right decision taken. Therefore, the State Government was wrong in
taking a unilateral decision to cancel all steps taken in pursuance of the
notification dated September 24, 1983 and to issue a fresh notification
inviting applications, without taking the High Court into confidence.
And the proper course for the High Court to adopt was to have issued a
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 opinion. [166G-167A]
1.3 The respective powers of the three wings of the State are
well-defined with the object that each wing must function within the
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 overactivisl approach and to ensure that they do not trespass within the
spheres earmarked for the other two branches of the State. Therefore,
the _High Court could not intervene at a stage where the Council of
Ministers had reviewed the situati11n and decided to reject the panel
sent by the High Court and not to appoint any of the five advocates to he 1
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 recommendaA
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 ConstituB
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
·'"f ..
~··
+
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
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)
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
G
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
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-
:>f
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 concerned.' 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 Governor 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]
.
G
State of Punjab v. Sodhi Sukhdev Singh, [1961] 2 SCR 371; and
Bachhittar Singh v. State of Punjab, [1962] Suppl. SCR 713, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos.
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. ,
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.
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 respondents to fill up five vacancies in the posts of District Judges meant
for direct recriiitment from the bar, by the appointment of respondents 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
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.
A
B
c
D
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
A
144
SU!'REME COURT REPORTS
(1987] 1 S.C.R.
The facts. At the instaI\ce of the High Court, the State Government issued a notification on September 24, 1983 inviting applications
from eligible members of the. bar to fill up three vacancies in the cadre
of 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 recommendations. 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 assessment of the merits. One of the fifteen candidates was Ms. Mary Teresa
Dias, District Government Pleader and Public Prosecutor of Emakulam 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 remaining fourteen names. The panel of fourteen names submitted by the
Committee was approved of by the Full Court by a majority at a
meeting held on June 12, 1984.
· On June 14, 1984, the Actg. Chief Justice sent up to t]le Chief
E Minister the panel of fourteen names as settled by the High C'ourt for
'A.
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 i
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 Classes' 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
B
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< competition 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 .
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Shortly thereafter on June 27, 1984 Ms. Mary Teresa Dias, the
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.
On January 31, t985 a news item appeared in the Mathrubhoomy, and other Malyalam newspapers in the State to the effect that at
a press conference held on that day· the Chief Minister briefed the
press of _a Cabinet meeting of the earlier day i.e. on January 30, 1985.
It went on to say that the Government had decided to fill up four posts
of District Judges from the panel of names recommended by the High
Court and to keep one post vacant since there was a writ petition
pending in the High Court. It was said that the fifth vacancy would also
be filled after the decision of the High Court. Further,the news item in·
Mathrubhoomy was to the effect that the Government had decided to
appoint respondents Nos. 3 to 6 Krishiian Nair, C. Khalid, E.
Achuthan Unni and G. Rajappan Asari as District Judges from the bar
on the recommendation to the High Court. There was some controversy as to the 'meaning of some Malayalam words in the news item.
According to learned counsel for the appellant the words meant 'it was
proposed to appoint' while learned counsel for the respondents asserted that the meaning should be 'it was decided to appoint'. The
State Government had therefore decided not to appoint respondent
No. 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 Anglolndians', 8th in the cycle of rotation.
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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 AdvocateGeneral stated that the Governor had not issued any order of appointment 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 deciding to leave out respondent No. 1 Smt. A. Lakshmikutty, a candidate
belonging to the Ezhava community falling in the group 'Ezhava,
Thiyyas and Billavas', 14th in the cycle of rotation, was invalid and
unless she was found to be unfit for appointment as a District Judge,
the first vacancy could not be offered to any person. The relevant
F portion of the order reads:
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"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
Latin Catholic and Anglo Indian community, item 8 in the
cycle of rotation. In the absence of such a candidate, the
vacancy should go to a candidate in item 10 in the cycle of
rotation. The penal does not contain names of any candidates who come within 8th, 10th or the 12th items, in the
cycle of rotation. Therefore, first vacancy should go to a
candidate, falling in the 14th item in the cycle, namely,
Ezhava."
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STATE OF KERALA v. A. LAKSHMIKUTIY (SEN, J.]
147
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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 rei,..,
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 AngloIndians' 'Other Backward Classes' and 'Scheduled Castes and
Scheduled Tribes', 8th, 10th 12th· turns in the cycle of rotation.
Accordingly, the Chief Minister addressed a letter on March 4, 1985 to .
the Acting Chief Justice, the material portion of which reads as
follows:
"My dear Chief Justice,
Sub: Direct recruitment of District Judges from the
Bar.
Please refer to your letter No. R3/84(SS) dated
14.6. 1984 forwarding a panel of 14 candidates considered
suitable by the High Court for appointment as District
Judges direct from the Bar. You are aware that some O.Ps
have been filed in the High Court in connection with the
selection and appointmeni of the District Judges.
In that context, Government have reviewed the entire issue of appointment to the five vacancies of District
Judges from the bar. The avowed policy of the Government is to give adequate representation to candidates belonging to Scheduled Castes, Scheduled Tribes, Latin
Catholics/ Anglo Indians and Other Backward Communities as far as possible. Unfortunately we cannot implement this policy if appointment is made .from the panel now
prepared as it contains no candidates from these groups.
As ·the vacancies that will occur for direct recruitment in
the cadre of District Judges will be only few, the passing
over of the communities cannot be made good in the near
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SUPREME COURT REPORTS
(1987) 1 S..C.R.
future. Consequently, the usual procedure of passing over
communities unrepresented in the merit list will cause
neglect of very backward communities for a long time.
There have been many writs filed questioning the
selections.
Having due consideration to the above facts, Government have decided to cancel all steps taken so far on the
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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
c
on the basis of such fresh applications."
The State Government in the return filed before the High Court
questioned the authority and jurisdiction of the High Court to issue a
writ of mandamus requiring the Governor to act contrary to the decision of the Council of Ministers taken on February 28, 1985 and to
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 function 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
State Government were constrained to review their earlier decision.
The State Government was faced with a serious problem in that there
would be non-representation of 'Latin-Catholics and Anglo-Indians',
'Other Backward Classes' and 'Scheduled Castes and Scheduled
Tribes' if the appointments were to be made according to the panel
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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
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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
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 recommended earlier, and further decided to invite fresh applicaC
lions for being placed before the High Court to prepare a
fesh panel for recruitment to the post of District Judges.
The non-representation of Scheduled Castes, LatinCatholics, Anglo-Indians and Other Backward Communities in the panel of names submitted by the High Court
weighed with the Government in taking the above decision.
Further it is not healthy to give room for such challenges as
those made before this Hon'ble Court on the panel by interested parties. Hence the decision was taken reviewing
0
the earlier recommendation. Fresh applications will be invited and the High Court will be requested to recommend
fresh panel for recruitment to the post of District Judges."
In order to appreciate the contentions advanced, it is necessary
E
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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
of communal reservation by a system of rotation or sub-rotation engrafted 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
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. (1987] 1 S.C.R.
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under the State. These rules are meant to ensure fair representation to
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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
lay down that the principle of reservation of appointments
shall apply to any service, class or category or where in the
case of any service, class or category for which no special
rules have been issued, the Government have by notification in the Gazette declared that the principle of reserva-_ _,....f,
lion of appointments shall apply to such service, class or
category, appointments by direct recruitment to such
service, class or category shall be made' on the following
basis:-
(a) The unit of appointment for the purpose of this rule
shall be 20, of which two shall be reserved for Scheduled
Castes and Scheduled Tribes and S shall be reserved for the
Other Backward Classes and the remaining 10 shall be filled on the basis of merit.
(b) The claims of members of Scheduled Castes and
Scheduled Tribes and Other Backward Classes shalll also be
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 ,
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.
I. Open competition.
2. Ezhavas, Thiyyas and Billavas.
3. Open competition.
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4. Scheduled Castes.
5. Open competition.
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STATE OF KERALA v. A. LAKSHMIKUTfY (SEN, J.)
15 l
6. Muslims.
7. Open competition.
8. Latin-Cathplics and Anglo-Indians.
9. Open competition.
10. Other Backward Classes.
11. Open competition.
12, Scheduled Castes.
13. Open competition.
14. Ezhavas, Thiyyas and Billavas.
15. Open competition.
16. Muslims.
17. Open competition.
18. Ezhavas, Thiyyas and Billavas.
19. Open competition.
20. Viswakannas. ''
Under r.