ivil Appeals Nos
4224 27 of 1985
From the Judgment and Order dated 2941985 of the Kerala High Court in OP Nos 905 2732 2781 and 3243 of 1985
143 G Viswanatha Iyer and Mrs Baby Krishnan for the Appellant
TS Krishnamoorthi P Subramonian Poti T Sridharan AS Nambiar P Parameshwarn Mrs Santa Vasudevan EMS Anam TL Viswanatha Iyer section Balakrishnan and Ramesh N Keswani for the Respondents
The Judgment of the Court was delivered by SEN J
These appeals by special leave are directed against the judgment and order of the Kerala High Court dated April 29 1985 quashing the Cabinet decisions of January 30 1985 and February 28 1985 and issuing a writ in the nature of mandamus directing the respondents to fill up five vacancies in the posts of District Judges meant for direct recruitment from the bar by the appointment of respondents Nos 1 and 3 to 6 as recommended by the High Court under article 2331 of the Constitution
The issue involved is whether the issuance of a writ of mandamus by the High Court directing the Governor to act on the recom mendation of the High Court to fill up the five vacancies in the posts of DiStrict Judges reserved for direct recruitment from the practising members of the bar under article 2331 of the Constitution was constitutionally impermissible
By the judgment a Division Bench of the High Court has held that although it was not oblivious that the advice  of the Council of Ministers to reject the panel of fourteen names forwarded by the High Court could not
be subject to judicial review and that article 1633 of the Constitution precludes an inquiry as to the nature of the advice given by the Council of Ministers to the Governor still it had the power to issue a writ in the nature of mandamus upon the basis that it was called upon to adjudge the legality and propriety of the decisions reached by the State Government through the instrumentality of the Council of Ministers
It was of the view that the reasons given on the basis of which the Council of Ministers on February 28 1985 purported to review their earlier decision dated January 30 1985 and decided not to appoint respondents Nos 1 and 3 to 6 as District Judges on the recommendation of the High Court due to the non representation of candidates belonging to the Latin Catholics and Anglo Indians  Other Backward Class es  and Scheduled Castes and Scheduled Tribes  8th 10th and 12th in the cycle of rotation as provided in r 14c of the Kerala State  Subordinate Services Rules 1958 were no reasons at all and the action of the State Government in rejecting the panel sent by the High Court was arbitrary illegal and improper
144 The facts
At the instance of the High Court the State Government issued a notification on September 24 1983 inviting applications from eligible members of the bar to fill up three vacancies in the cadre of District Judges by direct recruitment from the bar
The notification stated that the number of candidates proposed to be selected were three subject to variation according to the exigencies
Later the number of vacancies was increased to five
There were a large number of candidates from the bar and the applications were forwarded by the State Government to the High Court with request to make its recommendations
The Full Court at a meeting held on March 15 1984 constituted of Committee of three senior most Judges to prepare a panel of names
The Committee interviewed the candidates and drew up a list of fifteen candidates adjudged as eligible on an overall assessment of the merits
One of the fifteen candi dates was Ms Mary Teresa Dias District Government Pleader and Public Prosecutor of Ernakulam belonging to the Latin Catholic community
It however appears that the Committee by a majority of 21 felt that she was not suitable for ap pointment as a District Judge and accordingly deleted her name from the list of eligible candidates and drew up a panel of the remaining fourteen names
The panel of fourteen names submitted by the Committee was approved of by the Full Court by a majority at a meeting held on June 12 1984
On June 14 1984 the Actg
Chief Justice sent up to the Chief Minister the panel of fourteen names as settled by the High Court for appointment as District Judges from the bar
It was stated that the appointments had to be made according to the cycle of rotation governing reservation of posts as laid down in r 14c of the Kerala State  Subordinate Services Rule 1958 as required by r 2b of the Kerala State Higher Judicial Service Rules 1961
Accordingly the appointments had to start with the first vacancy going to a candidate belonging to the Latin Catholics and Anglo Indi ans  community 8th turn in the cycle of rotation
As there was no candidate belonging to the Latin Catholics and Anglo Indians  Other Backward Classes  and Scheduled Castes and Scheduled Tribes  8th th and 12th in the cycle of rotation the first vacancy had to be filled by reason of r 15a of the Rules by a suitable candidate belonging to the community or group of communities immediately next to the passed over community or group ie 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 ie 9th in the cycle of rotation had to be filled by respondent No 3 Krishnan Nair 1st in order of merit by open corn 145 petition
The third vacancy had to go to Other Backward Classes  th in the cycle of rotation
As there was no Other Backward Classes  candidates nor any candidate be longing to the Scheduled Castes and Scheduled Tribes  10 th and 12th in the cycle of rotation it had to be filled by a Muslim candidate C Khalid respondent NO 4 who was 5th in order of merit and 16th in the cycle of rotation
The fourth vacancy had to be filled by a candidate on the basis of open competition ie by respondent No 5 Achuthan Unni 2nd in order of merit and 11th in the cycle of rotation
The fifth vacancy was to be filled by respondent No 6 Rajappan Asari a Viswakarma 4th in order of merit and 20th in the cycle of rotation
Shortly thereafter on June 27 1984 Ms Mary Teresa Dias the candidate belonging to the Latin Catholic commu nity moved the High Court by a petition under article 226 of the Constitution for grant of writs in the nature of manda mus directing the State Government to forbear from filling up any of the five vacancies in the post of District Judges without inclusion of her name in the panel and for directing the High Court to forward her name for appointment as a District Judge
On January 31 1985 a news item appeared in the Mathrub hoomy and other Malyalam newspapers in the State to the effect that at a press conference held on that day the Chief Minister  briefed the press of a Cabinet meeting of the earlier day ie on January 30 1985
It went on to say that the Government had decided to fill up four posts of District Judges from the panel of names recommended by the High Court and to keep one post vacant since there was a writ petition pending in the High Court
It was said that the fifth vacan cy would also be filled after the decision of the High Court
Further the news item in Mathrubhoomy was to the effect that the Government had decided to appoint respond ents Nos
3 to 6 Krishnan Nair C Khalid E Achuthan Unhi and G Rajappan Asari as District Judges from the bar on the recommendation to the High Court
There was some
controver sy as to the meaning of some Malayalam words in the news item
According to learned counsel for the appellant the words meant it was proposed to appoint  while learned counsel for the respondents asserted that the meaning should be it was decided to appoint 
The State Government had therefore decided not to appoint respondent No 1 Smt
A Lakshmikutty belonging to the Ezhava community 14th in the cycle of rotation and one post was to be kept vacant pre sumably for a candidate belonging to the group Latin Catho lics and Anglo Indians  8th in the cycle of rotation
146 On the next day ie on February 1 1985 respondent No 1 Smt
A Lakshmikutty moved the High Court by a petition under article 226 of the Constitution for grant of an appropri ate writ direction or order to quash the decision of the Council of Ministers dated January 30 1985 deciding not to appoint her as a District Judge as per the panel sent up by the High Court
She by an application also prayed for grant of an ad interim prohibitory order to restrain the State Government from appointing respondents Nos
3 to 6 as Dis trict Judges
The stay application was heard by a Single Judge for two days on February 13 and 20 1985
At the hearing on February 13 the learned Advocate General stated that the Governor had not issued any order of appointment in favour of respondent Nos 3 to 6 and gave an undertaking on behalf of the State Government that no such appointments would be made for a period of seven days
At the heating on February 20 the learned Advocate General submitted that the period of seven days as indicated by him had expired and there was no longer any further commitment on the part of the State Government not to make  the appointments
He further stated at the bar that the news item that one post was kept vacant on account of the Writ Petition filed by the Latin Catholic candidate Ms Mary Teresa Dias was conect
He also revealed that the relevant records were lying with the Governor and could be made available only after getting the same from him
The learned Single Judge by his order dated February 21 1985 held that prima facie the Cabinet decision of January 30 1985 deciding to leave out respondent No1 Smt
A Lakshmikutty a candidate belonging to the Ezhava community falling in the group Ezhava Thiyyas and Billavas  14th in the cycle of rotation was invalid and unless she was found to be unfit for appointment as a District Judge the first vacancy could not be offered to any person
The relevant portion of the order reads Prima facie the decision appears to be contrary to rules 14 to 17 of the Kerala State  Subordinate Service Rules
First among the five vacancies according to the records placed before me should go to a candidate belonging to Latin Catholic and Anglo Indian community item 8 in the cycle of rotation
In the absence of such a candidate the vacancy should go to a candidate in item 10 in the cycle of rota tion
The penal does not contain names of any candidates who come within 8th th or the 12th items in the cycle of rotation
Therefore first vacancy should go to a candidate failing in the 14th item in the cycle namely Ezhava
 147 Upon that view the learned Single Judge issued a prohibito ry order restraining the State Government from making any appointment of respondents Nos
3 to 6 or any other candi date as District Judges for a period of one month
The State Government having been restrained from making the appointments for a period of one month ie till March 20 1985 the matter of direct recruitment of District Judges from the bar again came up before a meeting of the Council of Ministers held on February 28 1985
The Govern ment reconsidered the whole question of direct recruitment of District Judges from the bar afresh and decided not to appoint anybody from the panel of names recommended by the High Court due to non representation of Latin Catholics and Anglo Indians  Other Backward Classes  and Scheduled Castes and Scheduled Tribes  8th 10th 12th  turns in the cycle of rotation
Accordingly the Chief Minister addressed a letter on March 4 1985 to the Acting Chief Justice the material portion of which reads as follows My dear Chief Justice Sub Direct recruitment of District Judges from the Bar
Please refer to your letter No R384SS dated 146
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 OPs have been filed in the High Court in connection with the selection and appointment of the District Judges
In that context Government have reviewed the entire issue of appointment to the five vacancies of Dis trict Judges from the bar
The avowed policy of the Govern ment is to give adequate representation to candidates be longing to Scheduled Castes Scheduled Tribes Latin Catho licsAnglo Indians and Other Backward Communities as far as possible
Unfortunately we cannot implement this policy if appointment is made from the panel now prepared as it con tains no candidates from these groups
As the vacancies that will occur for direct recruitment in the cadre of District Judges will be only few the passing over of the communities cannot be made good in the near 148 future
Consequently the usual procedure of passing over communities unrepresented in the merit list will cause neglect of very backward communities for a long time
There have been many writs filed questioning the selections
Having due consideration to the above facts Government have decided to cancel all steps taken so far on the basis of applications received in response to notifica tion dated 24th September 1983 and to invite fresh appli cations and to do recruitment of District Judges from the Bar on the basis of such fresh applications
 The State Government in the return filed before the High Court questioned the authority and jurisdiction of the High Court to issue a writ of mandamus requiring the Governor to act contrary to the decision
of the Council of Ministers taken on February 28 1985 and to appoint respondents Nos 1 and 3 to 6 to be District Judges under article 2331 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 article 2331 is an executive function and the Governor is bound to act on the advice of the Council of Ministers under article 1631
It was also pleaded that it was not open to the High Court to scrutinise the reasons which impelled the Council of Minis ters to review its earlier decision taken on January 30 1985 and decide in the subsequent meeting held on February 28 1985 not to appoint anyone as a District Judge under article 2331 from the panel of names submitted by the High Court
It was averred that there were good and weighty reasons why the State Government were constrained to review their earlier decision
The State Government was faced with a serious problem in that there would be non representation of Latin Catholics and Anglo Indians  Other Backward Class es  and Scheduled Castes and Scheduled Tribes  if the appointments were to be made according to the panel submit ted by the High Court
It was asserted that the Government viewed with concern the proceedings before the High Court and felt that there should be no room for such challenge
The Government therefore decided to reject the panel of names forwarded by the High Court by cancelling the afore said notification and all the steps taken pursuant thereto
It was further decided to issue a fresh notification invit ing applications from the members of the bar for appointment as 149 District Judges for being placed before the High Court to prepare a fresh panel of names
In essence the contention is that the State Government has the final voice in the appointment of District Judges under article 2331 and it was therefore for the Council of Ministers to take the decision not to appoint anyone from the panel of names submitted by the High Court which was a decision taken in the larger public interest
The material portion of the return in the form of a counter affidavit by the Commissioner and Secre tary to the State Government Home Department reads as follows The Government reviewed their recommendation on 2821985 and decided not to appoint anybody as recommended earlier and further decided to invite fresh applications for being placed before the High Court to prepare a fresh panel for recruitment to the post of District Judges
The non repre sentation of Scheduled Castes Latin Catholics Anglo Indians and Other Backward Communities in the panel of names submitted by the High Court weighed with the Government in taking the above decision
Further it is not healthy to give room for such challenges as those made before this Hon ble Court on the panel by interested parties
Hence the decision was taken reviewing the earlier recommendation
Fresh applications will be invited and the High Court will be requested to recommend fresh panel for recruitment to the post of District Judges In order to appreciate thecontentions advanced it is necessary to mention that r 2b of the Kerala Sate Higher Judicial Service Rules 1961 framed under the proviso to article 309 of the Constitution provides that one third of the permanent places of District Judges shall be filled or reserved to be filled by direct recruitment from the bar
Note beneath r 2b enjoins that in the case of appointment by direct recruitment the appointment shall be made in accordance with the principles of reservation of posts embodied in rr
14 to 17 of part II of the Kerala State  Subordinate Services Rules 1958
For the sake of completeness we would also refer to the scheme of communal reservation by a system of rotation or sub rotation engrafted in rr
14 to 17 of the Kerala State  Subordinate Services Rules 1958
These are special provi sions made by the State under article 14 read with article 164 of the Constitution for the reservation of appointments or posts in favour ofthe backward classes which in the opin ion of the State are not adequately represented in the services 150 under the State
These rules are meant to ensure fair repre sentation to the Higher judicial service of the State to the members of the Scheduled Castes and Scheduled Tribes and to the Other Backward Classes
R 14 insofar as material reads 14
Reservation of appointments Where the special rules lay down that the principle of reservation of appointments shall apply to any service class or category or where in the case of any service class or category for which no special rules have been issued the Government have by notification in the Gazette declared that the principle of reservation of appointments shall apply to such service class or category appointments by direct recruitment to such service class or category shall be made on the follow ing basis a The unit of appointment for the purpose of this rule shall be 20 of which two shall be reserved for Scheduled Castes and Scheduled Tribes and 8 shall be reserved for the Other Backward Classes and the remaining 10 shall be filled on the basis of merit
b The claims of members of Scheduled Castes and Scheduled Tribes and Other Backward Classes shall also be considered for the appointments which shall be filled on the basis of merit and where a candidate belonging to a Scheduled Caste Scheduled Tribe or Other Backward Class is selected on the basis of merits the number of posts reserved for Scheduled Castes Scheduled Tribes or for Other Backward Classes as the case may be shall not in any way be affected
c Appointments under this rule shall be made in the order or rotation specified below in every cycle of 20 vacancies
Open competition
Ezhavas Thiyyas and Billavas
Open competition
Scheduled Castes
Open competition
151 6
Muslims
Open competition
Latin Catholics and Anglo Indians
Open competition
Other Backward Classes
Open competition
Scheduled Castes
Open competition
Ezhavas Thiyyas and Billaras
Open competition
Muslims
Open competition
EZhavas Thiyyas and Billavas
Open competition
20 Viswakarmas
 Under r 14a there is 50 reservation of posts for the backward classes under article 164 ie for the Scheduled Castes and Scheduled Tribes and Other Backward Classes
Whichever be the method adopted for selecting candidates as per the rules of rotation under r 14c or sub rotation under r 172 the mandate of r 14b is clear and specif ic
The members of Scheduled Castes and Scheduled Tribes and Other Backward Classes have the right to be considered for appointments which shall be filled on the basis of merit
Where a candidate belonging to such Backward Classes is selected on the basis of merits such selection would not prejudice their claim to the legitimate quota on the basis of reservation
It is not often that there is no eligible candidate available from a community or group of communities
To meet such a situation r 15a provides that if a suitable candidate is not available for selection from any particular community or group of communities specified in the annexure the said community or group shall be passed over and the post filled by a suitable candidate from the community or group of communities immediately next to the passed over community or group in the order of rotation
R 15b en joins that if a suitable candidate is 152 not available for selection from the group of communities classified as Scheduled Castes  in the turn allotted for such a group in the annexure the said group shall be passed over and the post shall be filled by a suitable candidate from the group of communities classified as Scheduled Tribes  and vice versa
If no suitable candidate for selec tion in any of the two groups viz
Scheduled Castes and Scheduled Tribes is available the vacancy has to be filled by open competition
R 15c provides for restoration of the benefit of the turn forfeited at the earliest opportuni ty
Proviso thereto however enjoins that the restoration of the benefit of the turn forfeited by the carry forward rule shall not exceed 50 of the vacancies to be filled in a particular year
R 16 provides for sub rotation among major groups of other backward classes
R 171 lays down the manner in which appointments have to be made from candidates belonging to other backward classes
Other backward classes are enumerated in List III to Part I of the Rules and there are 73 communities or groups divided into 8 categories specified in r 171
Categories 1 to 7 are Ezhavas and Thiyyas Muslims Latin Catholics and Anglo Indians Nadars Scheduled Castes converts to Christianity Viswakarmas and Dhooravas
All other backward classes put together consti tute the 8th category
R 172 provides for sub rotation among the other backward classes
We need not go into de tails of the 40 turns in which the positions reserved for other backward classes have to be distributed
It is common ground that the five vacancies to be filled in this case had to start with the 8th turn in the cycle of rotation in the following order 1 Latin Catholics and Anglo Indians 2 Open competition 3 Other backward class es ie other than those mentioned in items 1 to 7 of r 17 14 Open competition and 5 Scheduled Castes and Scheduled Tribes appropriate to 8th 10th and 12th tums in the cycle of rotation
That is because in the previous recruitment made in the year 1978 appointments had been made upto the 7th turn in the cycle of rotation
In allowing the writ petitions the learned Judges held that although they could not subject the deliberations of the Council of Ministers to judicial review and article 1633 of the Constitution precludes an inquiry as to the nature of the advice given by the Council of Ministers to the Gover nor still there was need for affirmative action by the issue of a writ in the nature of mandamus or in the words of the High Court there has been flagrant and wrongful refus al  on the part of the State Government to exercise juris diction
It held relying on the celebrated decision in Padfield vs Minister of Agriculture Fisheries and 153 Food  and the several decisions of this Court and the House of Lords that although the Governor ie the State Government was not bound to accept the recommenda tions of the High Court nor was he bound to give reasons for not accepting the names recommended by the High Court nevertheless the Council of Ministers could not unilaterally reject the panel submitted by the High Court without obtain ing the views of the High Court
Consultation with the High Court was not an empty formality
It held that there was no full and effective consultation with the High Court before the State Government decided not to appoint anybody as a District Judge from the panel forwarded by the High Court under article 2331
The reasons given by the Chief Minister for rejection of the panel of names recommended by the High Court viz non representation of Latin Catholics and Anglo Indians Scheduled Castes and Scheduled Tribes and Other Backward Classes were no reasons at all  and in any event the reasons were bad in law
It held that a process of recruitment cannot be abandoned nor a rank list cancelled merely because the Government felt that a suitable candidate was not available
The State Government as the appointment authority was as such bound by r 15a which incorporated the rule of passing over like any other rules
Abandonment of a scheme of recruitment and the cancellation of the panel submitted by the High Court is therefore foreign to and not contemplated by the scheme if a suitable candidate is not available from a particular community or group of communi ties
R 15a merely contemplates that such community or group of communities should be passed over and the vacancy filled by a suitable candidate from the group or a community immediately next following
The High Court also adverted to the scheme of restoration which contemplated the restoration of the turn forfeited
It then went on to say that the State Government had no power to keep one vacancy open presumably to fill up that post by a suitable candidate from the group of LatinCatholics and Anglo Indians
The governmental action was wholly mala fide arbitrary and irrational
If it had no power to keep one post vacant for a particular community the Government could not decide  to appoint respondents Nos 3 6 as District Judges as recommended by the High Court
The Government refused to appoint respondent No 1 on the pre text that it had decided to keep one post vacant ie 8th turn in the cycle of rotation
If that be so it could not have decided to appoint respondents nos
4 and 6 Muslim and Viswakarma 16th and 20th turns in the cycle of rotation
The first decision of the Council of Ministers taken on January 30 1985 was therefore influenced by extraneous considerations which it ought not to have taken into account and therefore it was liable to be struck down
The subse quent decision  154 of the Council of Ministers taken on February 28 1985 was also guided by considerations which were wholly extraneous and irrelevant
The High Court observed that by deciding not to appoint anybody as a District Judge from the panel of names recommended by the High Court under article 233 1 of the Constitution there was an overt attempt on the part of the Government to appoint persons from outside the panel which was constitutionally impermissible
A few more facts
On April 29 1985 ie the day on which the writ petitions of the present respondents were allowed by the common judgment under appeal the High Court by a separate judgment dismissed the writ petition filed by Ms Mary Teresa Dias the LatinCatholic candidate on the ground inter alia that she was ineligible for selection  as a District Judge in view of the criterion laid down in r 32c of the Kerala State Higher Judicial Service Rules 1961
On the same day ie on April 29 1985 the learned Judges also rejected the appeal of Smt
N Subhadra Aroma and the writ petition of K Sadanandan
N Subhadra Amma claimed that by reason of her marriage to a scheduled caste she should have been regarded as such and considered to fill up the post reserved for scheduled caste candidates
In his writ petition K Sadanandan a scheduled caste candi date questioned the method of selection adopted by the High Court by interview
Both Smt
N Subhadra Amma and K Sada nandan preferred appeals to this Court by special leave
In N Subhadra Arama vs State of Kerala  Ors C A No 4 16385 decided on September 10 1985 this Court allowed the appeal of N Subhadra Amma set aside the judgment of the High Court and directed the High Court to determine whether she belonged to a scheduled caste or not and in case she happened to be a scheduled caste her claim for appointment to the post reserved for scheduled caste candidates be considered
Similarly in K Sadanandan vs State of Kerala  Ors CA No 569385 decided on December 17 1985 this Court allowed the appeal of K Sadanandan set aside the judgment of the High Court and directed that his claim for selection against the reserved post for scheduled caste candidates be considered afresh
The directions issued by this Court in N Subhadra Amma s and K Sadanandan s cases directing the High Court to consider their names for ap pointment to the post reserved for members of the scheduled castes must necessarily disturb the panel drawn up by the High Court
In view of the directions issued by this Court which have to be obeyed by the High Court the entire ques tion has to be considered afresh in the light of the subse quent developments
155 Various contentions have been advanced by learned coun sel for the parties but on the view that we take it is not necessary to deal with them all
We are grateful to the learned counsel for placing with great perspicuity much learning and resource their respective points of view
They have mainly referred to the four decisions in Chandra Mohan vs State of UP  Ors 
A Panduranga Rao vs State of Andhra Pradesh  Ors   Mani Subrat Jain vs State of Haryana  Ors and MM Gupta  Ors
vs State of Jammu  Kashmir  Ors
  After the conclusion of the heating the State Govern ment on our request placed a copy of the letter of the Acting Chief Justice dated June 14 1984 addressed to the Chief Minister which was not on record
In the letter he stated that he was enclosing a panel of 14 names considered suitable by the High Court for appointment of District Judges direct from the bar
In para 7 thereof he explained the basis on which the panel of names was prepared namely In the panel of names enclosed there is no candidate from
the Latin Catholics and Anglo Indians  group and so the first vacancy will have to be allotted under rule 15a of the Kerala State and Subordinate Services Rules 1958 to Other Backward Classes  in the 10th cycle of rotation taking into account the Explanation to the annexure
The panel includes two candidates belonging to Other Backward Classes  namely Shri Rajappan Asari who is a Viswakarma and Smt
KJ Teresa who is a Scheduled Caste convert
But these two communities are not included in item 8 in rule 171 of the Rules
There is also no Scheduled Caste candidates
Under rule 15 therefore we have to go down in the cycle of rotation and allot the vacancy to a candidate from the group Ezhavas Thiyyas and Billavas 
The second vacancy has to be filled up on the basis of Open Competition 
The third vacancy should go to Other Backward Classes  as defined in the Explanation
As there is no OBC candidate and no Scheduled Caste candidate appropriate to the 12th rotation in the annexure and the Ezhava candidate appropriate to the 14th rotation is already approved for this third reserved vacancy has to be filled up from among Muslims   16th rotation
 In these appeals three main questions arise for deter mination namely i Whether the High Court was justified in holding that the 156 Council of Ministers could not have at the subsequent meet ing held on February 28 1985 reviewed  the situation and decided not to make the appointments contrary to the earlier decision taken at the Cabinet meeting held on January 30 1985 to make such appointments on the recommendation of the High Court
ii Whether the High Court could have issue a writ or direction in the nature of mandamus under article 226 directing the State Government meaning the Governor to appoint respondents Nos 1 and 3 6 as District Judges from the bar under article 2331 of the Constitution in accordance with the recommendation of the High Court and contrary to the decision of the Council of Ministers taken on February 28 1985 not to appoint anybody from the panel forwarded by the High Court
iii If the High Court were of the view that there was no full and effective consultation by the State Government with the High Court as enjoined by article 2331 of the Constitution and therefore the Government could not have unilaterally rejected the panel of names recommended by the High Court whether the proper course for the High Court was to have issued a writ or direction in the nature of mandamus requiring the State Government to convey its views to the High Court as reflected in
the Chief Minister s letter dated March 4 1985 and if necessary
make a fresh effort to find suitable candidates from the communities or groups of communities passed over
The heart of the matter is that consultation  between the State Government and the High Court in the matter of appointment of District Judges under article 2331 of the Constitution must be real
full and effective
To make the consultation effective
there has to be an inter change of views between the High Court and the State Government
so that any departure from the advice of the High Court would be explained to the High Court by the State Government
If the State Government were simply to give lip service to the principle of consultation and depart from the advice of the High Court in making judicial appointments without referring back to the High Court
the difficulties which prevent the Government from accepting its advice
the consultation would not be effective and any appointment of a person as a Dis trict Judge by direct recruitment from the bar or by promo tion from the judicial services under article 2331 would be invalid
Unless
the State Government were to convey to the High Court the difficulties which prevent the Government from accepting its advice by referring back the matter the consultation would not be effective
Indubitably
the power of appointment of persons to be District Judges conferred on the Governor
meaning the State Government
157 under article 2331 in consultation with the High Court is an executive function
It has been settled by a long line of decisions of this Court starting from Chandra Mobart vs State of UP  Ors to MM Gupta  Ors
vs 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 article 2331 in the matter of appointment of District Judges is conditioned by co nsultation with the exercise of the power that the power can only be exercised in consultation with the High Court
Appointment of persons to be and the posting and promo tion of District Judges in any State shall be made by the Governor of the State under article 2331 in consultation with the High Court exercising jurisdiction in relation to such State
Sub article
2 thereof provides that a person not already in the service of the Union or of the State shall only be eligible to be appointed as a District Judge if he has been for not less than seven years an Advocate or a Pleader and is recommended by the High Court for appoint ment
It is therefore obvious that eligibility of appoint ment of persons to be District Judges by direct recruitment from amongst the members of the bar depends entirely on the recommendation of the High Court
The State Government has no power to appoint any person as a District Judge except from the panel of names forwarded by the High Court
As stated the decisions starting from Chandra Mohan vs State of UP  Ors supra has established the principle as a rule of law that consultation between the Governor and the High Court in the matter of appointment of District Judges under article 2331 must not be empty formality but real full and effective
In Chandra Mohan vs State of UP  Ors supra Subba Rao CJ
speaking for a unanimous court observed The exercise of the power of appointment by the Governor is conditioned by his consulta tion with the High Court
that is to say he can only appoint a person to the post of District Judge in consultation with the High Court
The object of consultation is apparent
The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person
belonging either to the Judicial service or to the Bar to be appointed as a District Judge
Therefore
a duty is enjoined on the Governor to make the appointment in consultation with a body which is the appropriate authority to give advice to him
158 These provisions indicate that the duty to consult is so integrated with the exercise of the power that the power can be exercised only in consultation with the person or persons designated therein
 To the same effect are the decisions in Chandramouleshwar Prasad vs Patna High Court  Ors   High Court of Punjab  Haryana etc
vs Sate of Haryana  A Panduranga Rao vs State of Andhra Pradesh  Ors
and MM Gupta  Ors
vs State of Jammu  Kashmir  Ors supra
In A Panduranga Rao vs State of Andhra Pradesh  Ors supra it was observed Government was not bound to accept all the recommendations but could tell the High Court its reasons for not accepting the High Court s recommendations in regard to certain persons
If the High Court agreed with the reasons in case of a particular person the recommendation in his case stood withdrawn and there was no question of appointing him
Even if the High Court did not agree the final authority was the Government in the matter of appointment and for good reasons it could reject the High Court s recommendations
In either event it could ask the High Court to make more recom mendations in place of those who have been rejected In MM Gupta  Ors
vs State of Jammu  Kashmir  Ors supra Amarendra Nath Sen J speaking for himseft and Bhagwati  Pathak JJ
while dealing with the appointment of persons to be District Judges by the Governor under article 2331 viewed with concern the recent trend of interference in the matter of judicial appointments by the Executive both at the Centre and the State levels and expressed the view that healthy conventions and proper norms should be evolved in the matter of these appointments for safe guarding the independence of the judiciary in conformity with the re quirements of the Constitution
We fully endorse the princi ple deduced by him from the 
various authorities of this Court in these words Normally as a matter of rule the recommen dations made by the High Court for the ap pointment of a District Judge should be ac cepted by the State Government and the Gover 159 nor should act on the same
If in any particu lar case the State Government for good and weighty reasons finds it difficult to accept the recommendations of the High Court the State Government should communicate its views to the High Court and the State Government must have complete and effective consultation with the High Court in the matter
There can be no doubt that if the High Court is con vinced that there are good and weighty reasons for the objections on the part of the State Government the High Court will undoubtedly reconsider the matter and the recommendations made by the High Court Emphasis supplied The Constitution of India provides in articles 1242 2171 and 2331 dealing with appointment of Judges from the Supreme Court downwards and article 2221 dealing with transfer of a Judge from one High Court to another for a very delicate process of consultation between the executive and the judiciary
The word consultation  in article 2331 must bear the same meaning as in these other provisions
The plain meaning of the word consult  as given in Shorter Oxford English Dictionary Vol 1 at p 409 is to take counsel together deliberate confer and the word consul tation  means the action of consulting or taking counsel together deliberation conference
The word consultation  therefore implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct or at least a satisfac tory solution
In the words of Subba Rao CJ
R Pushpam vs State of Madras AIR 1953 Mad
392 cited by Chandrachud J in Shethi s case In order that the two minds may be able to confer and produce a mutual impact it is essential that each must have for its consid eration full and identical facts which can at once constitute both the source and foundation of the final decision
 The concept of consultation in article 2221 has been deline ated by Chandrachud J in Union of India vs Sankalchand Himatlal Sheth  Anr
   in his own illumi nating language It casts an absolute obligation on the Presi dent to consult the Chief Justice of India before transferring a Judge from one High Court to another
The word may  in Article 160 2221 qualifies the last clause which refers to the transfer of a Judge and not the inter vening clause which refers to consultation with the Chief Justice of India
The President may or may not transfer a Judge from one High Court to another
He is not compelled to do so
But if he proposes to transfer a Judge
he must consult the Chief Justice of India before transferring the Judge
That is in the nature of a condition precedent to the actual trans fer of the Judge
In other words the transfer of a High Court Judge to another High Court cannot become effective unless the Chief Justice of India is consulted by the President in behalf of the proposed transfer
Indeed it is euphemistic to talk in terms of effective ness because the transfer of a High Court Judge to another High Court is unconstitution al unless before transferring the Judge the President consults the Chief Justice of India
     There can be no purposeful consideration of a matter in the absence of facts and circum stances on the basis of which alone the nature of the problem involved can be appreciated and the right decision taken
It must therefore follow that while consulting the Chief Jus tice the President must make the relevant data available to him on the basis of which he can offer to the President the benefit of his considered opinion
If the facts necessary to arrive at a proper conclusion are not made available to the Chief Justice he must ask for them because in casting on the President the obligation to consult the Chief Justice the Constitution at the same time must be taken to have imposed a duty on the Chief Justice to express his opinion on nothing less than a full consideration of the matter on which he is entitled to be consulted
The fulfilment by the President of his constitu tional obligation to place full facts before the Chief Justice and the performance by the latter of the duty to elicit facts which are necessary to arrive at a proper conclusion are parts of the same process and are complemen tary to each other
The faithful observance of these may well earn a handsome dividend useful to the administration of justice
Consultation within the meaning of Article 2221 there fore means full and effective not formal or unproductive consultation
Thus deliberation is the quintessence of consultation Emphasis supplied The argument of Sri G Viswanatha Iyer learned counsel appearing for the State Government is that the High Court had no authority or jurisdiction to issue a writ of mandamus ordaining the State Government meaning the Governor to appoint respondents Nos 1 and 3 6 as District Judges under article 2331 in accordance with the recommendation of the High Court and contrary to the decision of the Council of Ministers taken on February 28 1985
He argues that the High Court exceeded its jurisdiction in subjecting the process of decision making by the Council of Ministers to judicial review and questions the propriety of the observa tions made by the High Court that the reasons furnished in the letter of the Chief Minister dated March 4 1985 were no reasons at all and that the governmental action was totally arbitrary irrational and improper
He next argues that the appointment of District Judges by the Governor in consulta tion with the High Court under article 2331 is purely an executive function and that the Governor is not bound to accept the advice of the High Court
In support of the contention reliance is placed on the decision of this Court in Mani Subrat Jain vs State of Haryana  Ors supra
In any event no writ of mandamus lies in the case of non selection to a post
According to the learned counsel it was open to the Government not to make any appointments at all from the panel of names forwarded by the High Court if the Government was of the opinion that the making of such appointments would result in non representation of certain backward communities or groups
It is said that while ad judging the suitability of candidates was no doubt a func tion of the High Court but
at the same time the Government had the duty to ensure that the appointment of District Judges from the bar under article 2331 in accordance with the panel prepared by the High Court was in conformity with r 2b of the Kerala State Higher Judicial Service Rules ie in consonance with the scheme of communal reservation
In substance the contention is that the scheme of communal reservation as laid down in rr
14 to 17 of the Rules does not compel the State Government to pass over candidates belonging to a community or group of communities by taking recourse to the principle of passing over in r 15a
Finally the learned counsel submits that if it were to be held that there was no full and effective consultation with the High Court and therefore the State Government could not have unilaterally rejected the panel the proper course for the High Court was to have issued a writ in the nature of mandamus requiting the State Govern 162 ment to communicate its views to the High Court with a view to elicit its opinion and if necessary make a fresh effort to find suitable candidates from the communities or groups passed over before taking a final decision in the matter
There is in our opinion sufficient force in these submis sions
Arguments of Sri TSKrishnamoorthy Iyer learned coun sel appearing for respondents nos
3 6 were two fold
His main submission is that according to the decision of this Court in Shamsher Singh  Anr
vs State of Punjab 14 the Governor must act on the advice of the Council of Ministers
According to him there was no occasion for the Council of Ministers to have reviewed the situation and decided not to appoint anybody from the panel contrary to the decision taken on January 30 1985 which was constitu tionally impermissible
As the sequence of events would show the immediate provocation for the subsequent decision of the Cabinet taken on February 28 1985 was the issue of an ad interim prohibitory order by the High Court on February 21 1985 restraining the State Government from making any appointments for a period of one month
In fact there was no legal impediment to the appointment of respondents nos
3 6 as District Judges after the Council of Ministers had taken a decision at its meeting held on January 30 1985 to appoint them as District Judges on the recommendation of the High Court
From the news item of the press conference held by the Chief Minister on January 31 1985 as reported in the Mathrubhoomy and other Malyalam newspapers it was amply clear that the Government had decided to fill up four posts and keep one vacancy open presumably for the Latin Catholic candidate since she had filed a writ petition in the High Court
It is submitted that all the formalities were com plete and the only thing that remained was the issue of a formal notification in the name of the Governor making the appointments as required by article 1661
Alternatively the learned counsel contends that if the Government felt that there were unsurmountable difficulties in making the ap pointments according to the panel drawn up by the High Court due to non representation of Latin Catholics and AngloIndi ans Other Backward Classes and Scheduled Castes and Sched uled Tribes as expressed by the Chief Minister in his letter dated March 4 1985 and as reiterated in the return filed in the High Court by the Secretary to the Government Home Department the State Government should have referred back the matter to the High Court requiring the High Court to reconsider the question of selection of candidates
In essence the contention is that the subsequent decision of the 163 Council of Ministers taken on February 28 1985 was liable to be quashed for want of consultation with the High Court as required by article 2331 and the learned counsel suggest ed that we should remit back the matter to the State Govern ment with necessary directions
As to the power of the High Court to grant a writ in the nature of mandamus he contends that respondents nos 3 6 having been recommended by the High Court had a legitimate expectation to be appointed as District Judges from the bar under article 2331 and therefore had the fight to approach the High Court for grant of neces sary relief
Argument of Sri Subramanion Poti learned counsel ap pearing for respondent No 1 was that the reasons furnished by the Chief Minister in his letter dated March 4 1985 were no reasons at all and that the reason viz non representation of Latin Catholics and Anglo Indians Other Backward Classes and Scheduled Castes and Scheduled Tribes could not be a ground for rejection of the panel forwarded by the High Court or furnish a basis to issue a fresh notification inviting applications
He submits that r 15a contemplates that if a suitable candidate was not available
the vacancy should be filled by a candidate belonging to the community or group immediately next to the passed over community or group
The learned counsel contends that it was not suggest ed that the panel of names drawn up by the High Court was not in conformity with the rules of communal reservation laid down in rr
14 to 17 6f the Rules
If no candidates were available from the communities Latin Catholics and Anglo Indians
Other Backward Classes and Scheduled Castes and Scheduled Tribes 8th10th and 12 turns in the cycle of rotation
the vacancy had to be filled up by respondent No 1 Smt
A Lakshmikutty an Ezhava community candidate 14th in the cycle of rotation
According to him  there were no good and weighty reasons  for the Council of MiniSters in withholding from the Governor the recommendation made by the High Court which was plainly for a bad reason
While the Council of Ministers had the duty to advise the Governor in the affairs of the State it could not withhold information from the Governor
Alternatively he adopted the argument of Sri TS Krishnamoorthy Iyer and contended that if it be held that there was no full and effective consultation between the High Court and the State Government
the matter be remitted back to the State Government for reconsideration of the whole question
We find it difficult to sustain the judgment of the High Court or the reasons upon which it is based
The High Court if we may say so without meaning any disrespect fell into an error in characterising the 164 reasons given on the basis of which the Council of Ministers reached a decision on February 28 1985 to review their earlier decision taken on January 30 1985 and decided not to appoint anybody as a District Judge from the panel of names forwarded by the High Court which were arbitrary illegal and improper 
Apparently the High Court was not right in its view that the rejection of the panel for the reason disclosed by the Council of Ministers in his letter dated March 4 1985 viz due to non representation of candi dates belonging to Latin Catholics  Anglo Indians Other Backward Classes and Scheduled Castes and Scheduled Tribes 8th 10th and 12th turns in the cycle of rotation was no reason at all 
We are satisfied that the High Court could not have upon this basis issued a writ of mandamus directing the State Government ie the Governor to appoint respond ents Nos 1 and 3 6 as District Judges under article 2331 of the Constitution
The High Court has virtually tendered on advice to the Governor to act on the recommendation of the High Court ie contrary to the advice of the Council of Ministers and thereby entered into the process of decision making which was constitutionally impermissible
The Governor has to act on the advice of the Council of Ministers under article 1631 in the matter of appointment of District Judges under article 2331 and not on the advice of the High Court Shamsher Singh  Anr
vs State of Punjab supra
Appointment of persons to be and posting and promotion of District Judges by the Governor under article 2331 is purely an executive function
The High Court therefore had no authority or jurisdiction to issue any writ of mandamus of the kind complained of
If was certainly not open to the High Court to embark upon an inquiry as to the reasons which impelled the Council of Ministers at the meeting held on February 28 1985 to review the decision taken on January 30 1985 and decide not to appoint anyone as a District Judge under article 2331 from the panel of names drawn up by the High Court
It was also not justified in observing that the reasons as disclosed by the Chief Minister in his letter dated March 4 1985 on the basis of which the Council of Ministers on February 28 1985 decided not to appoint respondents Nos 1 and 3 6 as District Judges on the recommendation of the High Court viz due to non representation of certain important communities or groups of communities were no reasons at all and in any event the reasons given were bad in law
There is no basis in our opinion for the finding reached by the High Court
Learned counsel for the State Government rightly questioned the authority and jurisdiction of the High Court to have issued a writ of mandamus commanding the State Government to make certain appointment of persons to be District Judges when the 165 Council of Ministers had taken a decision to the contrary
According to him this was not a proper exercise of powers by the High Court under article 226 of the Constitution and in any view of the matter the issuance of a writ of mandamus in the circumstances was wholly impermissible
In our opin ion the contention must prevail
We must refer to the case of Mani Subrat Jain vs State of Haryana  Ors supra which was relied upon by learned counsel for the State Government
It is well settled that a writ of mandamus is not a writ of course or a writ of right but is as a rule discretionary
There must be a judicially enforceable right for the enforcement of which a mandamus will lie
The legal right to enforce the performance of a duty must be in the applicant himself
In general there fore the Court will only enforce the performance of statu tory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance
Applying the principles stated in Halsbury s Laws of England 4th edn vol 1 paragarph 122 this Court observed that a person whose name had been recommended for appointment as a District Judge by the High Court under article 2331 had no legal right to the post nor was the Governor bound to act on the advice of the High Court and therefore he could not ask for a mandamus
It was observed It is elementary though it is to be restated that no one can ask for a mandamus without a legal right
The initial appointment of District Judges under Article 233 is within the exclusive jurisdiction of the Government after consulta tion with the High Court
The Governor is not bound to act on the advice of the High Court
The High Court recommends the names of persons for appointment
If the names are recommended by the High Court it is not obligatory on the Governor to accept the recommendation
The consultation of the Governor with the High Court does not mean that the Governor must accept whatever advice of recommendation is given by the High Court
Article 233 re quires that the Governor should obtain from the High Court its views on the merits and demerits of 166 persons selected for promotion and direct recruitment
 The existence of a right is the foundation of the jurisdic tion of a Court to issue a writ of mandamus
The present trend of judicial opinion appears to be that in the case of non selection to a post no writ of mandamus lies
We howev er do not wish to rest the decision on the technical ground
In our considered opinion the decision of these appeals must ultimately turn on the question whether there was real full and effective consultation by the Governor with the High Court within the meaning of article 2331 before the State Government reached a decision to reject the panel forwarded by the High Court
As well settled the duty of the Governor to consult the High Court in the matter of appointment of District Judges is so integrated with the exercise of his power that the power can only be exercised in the manner provided by article 2331 or not at all
Normal ly as a matter of rule the recommendations of the High Court for the appointment of a District Judge should be accepted by the State Government and the Governor should act on the same
If in any particular case the State Govern ment for good and weighty reasons  finds it difficult to accept the recommendations of the High Court the State Government should communicate its views to the High Court and must have complete and effective consultation with the High Court in the matter
It must therefore follow that before rejecting the panel forwarded by the High Court the State Government should have conveyed its views to the High Court to elicit its opinion It should have taken the High Court into confidence and placed before it the difficulties that faced the Government in acting upon the recommenda tions namely that it would result in non representation of important communities like Latin Catholics and Anglo Indi ans Other Backward Classes and Scheduled Castes and Sched uled Tribes as expressed by the Chief Minister in his letter dated March 4 1985
The fulfilment by the Governor of his constitutional obligation to place full facts before the High Court was a precondition before the State Govern ment could arrive at a decision not to appoint respondents nos
1 and 3 6 as District Judges
On its part there was a constitutional obligation cast on the High Court under article 2331 to express its opinion on a consideration of the facts and circumstances on the basis of which alone the nature of the problem could be appreciated and the right decision taken
It must accordingly be held that the State Government was wrong in taking a unilateral decision to cancel all steps taken in pursuance of the notification dated September 24 1983 and to issue a fresh notification inviting applica 167 tions without taking the High Court into confidence
In the premises the proper course for the High Court to adopt was to have issued a writ in the nature of mandamus requiring the State Government to place before the High Court the facts ie the difficulties as expressed in the letter of the Chief Minister dated March 4 1985 to elicit its opin ion
If the matter rested at that there would be no diffi culty but the High Court has gone a step further
The issuance of a writ of mandamus by the High Court directing the State Government ie the Governor to act on the recom mendation of the High Court to fill up the five vacancies in the posts of District Judges meant for direct recruitment from the members of the bar under article 2331 was constitu tionally impermissible
Although the High Court was not oblivious that the advice  of the Council of Ministers to reject the panel of fourteen names submitted by the High Court could not be subject to judicial review and that article 1631 of the Constitution precludes an inquiry as to the nature of the advice given by the Council of Ministers to the Governor still it has issued a writ in the nature of mandamus upon the basis that it is called upon to adjudge the legality and propriety of the two decisions taken by the State Government through the instrumentality of the Council of Ministers
Relying upon the decision of this Court in the State of Rajasthan  Ors
vs Union of India   it observed that so long as the question remains whether the Council of Ministers acted within the limits of their power or exceeded it it can be decided by the Court
Apart from saying that the reasons given on the basis of which the Council of Ministers on February 28 1985 reviewed their earlier decision of January 30 1985 and decided not to appoint respondents nos
1 and 3 6 as District Judges on the recommendation of the High Court viz due to non representa tion of candidates belonging to Latin Catholics and Anglo Indians Other Backward Classes and Scheduled Castes and Scheduled Tribes were no reasons at all and that the action of the State Government in rejecting the panel sent by the High Court was totally arbitrary illegal and improp er it further observed that there was an overt attempt on the part of the State Government to appoint persons from outside the panel  which was constitutionally impermissible and relied on the proposition laid down in Padfied s case that if the Minister gave no reasons the Court might infer that he had no good reasons to give 
It accordingly held that the action of the State Government had no rational nexus to the object sought to be achieved ie implementa tion of the scheme of communal reservation laid down in rr
14 to 17 of the Kerala State  Subordinate Services Rules made applicable by Note beneath r 2b of the Kerala State Higher Judicial Service Rules
168 In coming to that conclusion the High Court relied upon the following observations of Bhagwati J in the State of Rajasthan  Ors
vs Union of India supra to the effect It will therefore be seen that merely because a question has a political colour the Court cannot fold its hands in despair and declare Judicial hands off
So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it it can certainly be decided by the Court
Indeed it would be its constitutional obligation to do so   
Every organ of government be it the executive or the legislature or the judiciary derives its authority from the Constitution and it has to act within the limits of its authority
 FolloWing this line of reasoning the High Court ob serves that every activity of the Government must be in formed with reason and every action taken by the State Government must be in public interest and the action would be invalid if it is unreasonable or lacking the quality of public interest
With respect the High Court was in error in working this principle which on the contrary lands support to the contention of the State Government that the High Court exceeded its jurisdiction in issuing the writ of Mandamus complained of the reason for this is obvious
Our Constitution does not envisage a rigid separation of powers
For example the power to promulgate on Ordinance which undisputedly is a legislative power is conferred on the executive under article 123
Even though this is so the re spective powers of the three wings of the State are well defined with the object that each wing must function within the field earmarked for it
The object of such demarcation is to exclude the possibility of encroachment on the field earmarked for one wing by the other or others
As long as each wing of the State functions within the field carved out and shows due deference for the other two branches there would arise no difficulty in the working of the Constitu tion
But the trouble arises when one wing of the State tries to encroach on the field reserved for the other
It is in the above context that special responsibility devolves upon the Judges to avoid an over activist approach and to ensure that they do not trespass within the spheres ear marked for the other two branches of the State
In our opinion the High Court could not intervene at a stage where the Council of Ministers had reviewed the situation and decided to reject the panel sent by the High Court and not to appoint any of the five advocates to be District Judges except by issuing a writ in the nature of mandamus requiting the State Government to refer back the 169 matter to the High Court for reconsideration in the event the High Court came to the conclusion that there was no full and effective consultation 
We find it difficult to fully subscribe to the view expressed by the High Court that the action of the State Government was not informed with reason or that it was not in public interest
It cannot be said that there was any impropriety involved in the Chief Minister writing to the Actg
Chief Justice placing the views of the Government
The High Court failed to appreciate that the Chief Minister expressed his unhappiness that due to adherence to the principle of passing over the Government was not able to implement its policy of giving adequate representation to candidates belonging to Latin Catholics and Anglo Indians Other Backward Classes and Scheduled Castes and Scheduled Tribes
Further as the vacancies that would occur for direct recruitment in the cadre of District Judges would only be few the usual procedure of passing over communities could not be made good in the near future and that the adoption of that course would cause neglect of very backward communities for a long time
May be the Government thought albeit wrongly that the principle of passing over embodied in rule 15a of the Rules being an integral part of the process of appointment the ultimate decision on the ques tion whether recourse should be had to that principle was one for the Government to take
We are quite clear in our mind that the Government was misled on that aspect
Normally the principle of passing over laid down in r 15a of the Rules in as integral part of the process of appointment and therefore the Government being the appoint ment authority would have the right to take a decision in the matter
But the Government failed to appreciate that the High Court plays a decisive role in the matter of appoint ment of District Judges under article 2331
Adjudging suit ability of a candidate for appointment as a District Judge under article 2331 is a function of the High Court which must necessarily imply that if the High Court finds that the candidate belonging to a particular community or group is not suitable for appointment it has to find a candidate from the community or group next following in the cycle of rotation It must logically follow as a necessary conse quence that it is for the High Court to decide whether or not a particular community or group should be passed over under r 15a of the Rules for want of a suitable candidate and the vacancy be filled up from the community or group immediately next to the passed over community or group in the order of rotation or sub rotation provided in r 14c
All that the State 170 Government could do was to convey to the High Court the difficulties faced by the Government in implementing the recommendations
It must accordingly be held that the State Government wrongly assumed to itself the power to decide the question whether the principle of passing over laid down in r 15a of the Rules should be resorted to or not
There was quite some discussion at the bar as to whether the Council of Ministers could have reviewed their earlier decision and decided not to appoint anybody from the panel of names forwarded by the High Court and to issue a fresh notification inviting applications
The answer to the ques tion is self evident
Merely because the Chief Minister briefed the press on January 31 1985 as regards the decision taken at the meeting of the Council of Ministers held on the previous day and the news of the press confer ence was published in the Mathrubhoom and other Malyalam newspapers to the effect that the Government had decided to fill up four posts of District Judges it could not be said that there was an order of the State Government in the manner required by article 1661
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 article 1631
Whatever the Council of Ministers may say in regard to a particular matter does not become the action of the State Government till the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State
Before an advice of the Council of Ministers amounts to an order of the State Government there are two require ments to be ful filled
namely 1 The order of the State Government had to be expressed in the name of the Governor as required by article 1661
and 2 It has to be communicat ed to the persons concerned
See Staff of Punjab vs Sodhi Sukhdev Singh  and Bachhittar Singh vs State of Punjab
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 article 1661 it could not be said to be an order of the State Government
Until then
the earlier decision of the Council of Ministers was only a tentative one and it was therefore fully competent for the High Court to reconsider the matter and come to a fresh decision
It is said reflect that there should have been this unfortunate discord between the High Court and the State Government over the 171 direct recruitment of District Judges from the bar under article 2331
This was mainly because there was failure to appreciate on the part of both the respective functions of each
We hope and trust that the State Government and the High Court in the consultative process would come to a solution of the problem acceptable to both as early as possible
At our request the Registrar of the High Court has furnished us with requisite information on the strength of cadre of District Judges
From the Note prepared by him the picture that emerges is this
Under the proviso to r 2b of the Kerala State Higher Judicial Service Rules one third of the permanent posts of District Judges including Selec tion Grade District Judges has to be filled up or reserved to be filled up by direct recruitment
The number of perma nent places of District Judges is 29
There is only one District Judge at present who is a direct recruit
The number of posts has increased with the creation of three posts of Motor Accidents Claims Tribunals at Palghat Man jeri and Tellichen which started functioning from June 1 198 1 and became permanent by June 1 1986
Thus the number of permanent posts of District Judges has gone up to 32
Therefore there arises the need for filling up ten posts of District Judges by direct recruitment
Even after the fill ing up of five vacancies with which we are concerned there would still remain scope for selecting four more District Judges from the bar
With the elevation of Sri KT Thomas and Sri K Sreedharan who were both directly recruited from the bar there would be need for filling up the posts of District Judges vacated by them
Due to the constitutional impasse created the matter is at a standstill
In the result the appeals succeed and are allowed to the extent indicated herein
The judgment and order of the High Court directing the issuance of a writ of mandamus commanding the State Government to appoint respondents Nos 1 and 3 6 as District Judges under article 2331 of the Con stitution are set aside
We instead direct that a writ in the nature of mandamus shall be issued to the State Govern ment requiring it to communicate its views to the High Court to elicit its opinion within six weeks from today and if necessary make a fresh effort to find suitable candidates from the communities or groups of communities passed over before taking a final decision in the matter
In conse quence the State Government s decision not to make appoint ments from the panel forwarded by the High Court and to re notify the vacancies must stand quashed
The High Court shall also comply 172 with the directions issued by this Court in two cases of Smt
N Subhadra Arnrna and K Sadanandan
We make it clear that the choice of candidates lies entirely with the High Court
There shall be no order as to costs
SR Appeals al lowed


Summary:
Rule 2b of the Kerala State Higher Judicial Service Rules 1961 requires that the cycle of rotation governing reservation of posts as laid down in Rule 14c of the Kerala State and Subordinate Service Rules 1958 be followed in the selection and appointment of District Judges by direct recruitment
Under Rule 14c appointments shall be made in the order of rotation specified therein in every cycle of 20 vacancies
It is not often that there is no eligible candidate available from a community or group of communities
To meet such a situation r 15a provides that if a suitable candidate is not available for selection from any particular community or group of communities speci fied in the annexure the said community or group shall be passed over and the post filled by a suitable candidate from the community or group of communities immediately next to the passed over communitY or group in the order of rotation
Rule 15b enjoins that if a suitable candidate is not available for selection from the group of communities clas sified as Scheduled Castes in the turn allotted for such a group in the annexure the said group shall be passed over and the post Shall be fired by a suitable candidate from the group of communities classified as Scheduled Tribes and vice versa
If no suitable candidate for selection in any of the two groups namely Scheduled Castes and Scheduled Tribes is available the vacancy has to be filled by open competi tion
Rule 15c provides for restoration of the benefit of the turn forfeited at the earliest opportunity
Proviso thereto however enjoins that the restoration of the benefit of the turn forfeited by the carry forward rule 137 shall not exceed 50 of the vacancies to be filled in a particular year
Rule 16 provides for sub rotation among major groups of other backward classes
Rule 171 lays down the manner in which appointments have to be made from candi dates belonging to other backward classes
Other backward classes are enumerated in List III to Part I of the Rules and there are 73 communities or groups divided into 8 cate gories specified in Rule 171
Categories 1 to 7 are Ezha vas and Thiyyas Muslims Latin Catholics and Angin Indians Nadars Scheduled Castes converts to Christianity Viswakar mas and Dhooravas
All other backward classes put together constitute the 8th category
Rule 172 provides for sub rotation among the other backward classes
In the last recruitment made in the year 1978 appointments had been made upto 7th turn in the cycle of rotation
The Committee of three senior most Judges constituted by the Full Court interviewed the candidates and drew up a list of fifteen candidates adjudged on an overall assessment of the merits
One of the fifteen  candidates Ms Mary Teresa Dias belonging to the Latin Catholic community however was considered unsuitable for appointment by the Committee by a majority of 21
On an approval of the revised panel of fourteen candidates by the Full Court by a majority at a meeting held on 1261984 the said list was sent to the Chief Minister
As there was no candidate belonging to the Latin Catholics and Anglo Indians  Other Backward Classes and Scheduled Castes and Scheduled Tribes  8th th and 12th in the cycle of rotation the first vacancy had be filled by reason of rule 15a of the Rules by a suitable candidate belonging to the community or group of communities immediately next to the passed over community or group ie by respondent No 1 Smt
A Lakshmikutty a member of the Ezhava  community 6th in order of merit failing in the group Ezhavas  Thiyyas and Billavas  14th in the cycle of rotation
The second vacancy ie 9th in the cycle rotation had to be filled by respondent No 3 Krishnan Nair 1st in order of merit by open competition
The third vacancy had to go to other Backward Classes  10th in the cycle of rotation
As there was no other Backward Classes  candidate belonging to the Scheduled Castes and Scheduled Tribes  10th and 12th in the cycle of rotation it had to be filled by a Muslim candidate C Khalid respondent No 4 who was 5th in order of merit and 16th in the cycle of rotation
The fourth vacancy had to be filled by a candidate on the basis of open competition ie by respondent No 5 Achuthan Unni 2nd in order of merit and 11th in the cycle of rotation
The fifth vacancy was to be filled by respondent No 6 Rajappan Asari a Viswakarma 4th in order of merit and 2Oth in the cycle of rotation
138 Shortly thereafter on June 27 1984 Ms Mary Teresa Dias filed a petition under Article 226 of the Constitution for grant of a writ of mandamus claiming her right to the first vacancy being a candidate belonging to the Latin Catholic and Anglo Indian community with a direction to the State Government not to fill up any of the five vacancies in the post of District Judges without inclusion of her name in the panel and a further direction to the High Court to forward her name for appointment as a District Judge
The said writ petition was however dismissed later on
Subsequently pursuant to a news item appearing on 3111985 in several malayalm newspapers to the effect that the cabinet as its meeting held on 30
I 1985 had decided to appoint only four out of the said five candidates leaving A Lakshmikutty sixth in order of merit belonging to the Ezhava community as one post was to be kept vacant for a candidate belonging to the group of Latin Catholic Anglo Indian community Respondent No 1 Smt
Lakshmikutty moved the High Court by a petition under Article 226 of the Con stitution for grant of an appropriate writ direction or order to quash the decision of the Council of Ministers dated January 30 1985 deciding not to appoint her as per the panel sent up by the High Court
Her application for grant of an ad interim prohibitory order to restrain the State Government from appointing only Respondents 3 to 6 as District Judges as per the Cabinet decision was ordered by a learned Single Judge on a prima facie case being made out
The State Government having been restrained from making the appointments for a period of one month
ie till March 20 1985 the matter of direct recruitment of District Judges from the bar again came up before a meeting of the Council of Ministers held on February 28 1985
The Govern ment reconsidered the whole question of direct recruitment of District Judges from the bar afresh and decided not to appoint anybody from the panel of names recommended by the High Court due to non representation of Latin Catholics and AngloIndians  Other Backward Classes  and Scheduled Castes and Scheduled Tribes  8th 10th and 12th turns in the cycle of rotation However the Kerala High Court al lowed the writ petition filed by Respondent A Lakshmikutty by its judgment and order dated 2941985 quashed the Cabinet decisions of 3011985 and 2821985 and issued a writ in the nature of mandamus directing the respondents State to fill up five vacancies in the posts of District Judges meant for direct recruitment from the bar by the appointment of Respondents t and 3 to 6 as recommended by the High Court under Article 233 1 of the Constitution
Hence the State appeals by special leave
139 Allowing the appeals and modifying the order the Court HELD 11 The power of appointment of persons to be District Judges conferred on the Governor meaning the State Government under article 2331 in consultation with the High Court is executive function
The power of the State Govern ment is not absolute and unfettered but is hedged in with conditions
The exercise of the power of the Governor under article 2331 in the matter of appointment of District Judges is conditioned by consultation with the exercise of the power that the power can only be exercised in consultation with the High Court
Therefore the eligibility of appoint ment of persons to be District Judges by direct recruitment from amongst the members of the bar depends entirely on the recommendation of the High Court
The State Government has no power to appoint any person as a District Judge except from the panel of names forwarded by the High Court
But the consultation between the Governor and the High Court in the matter of appointment of District Judges under Article 233 1 must not be an empty formality but real full and effective
156H I57E Chandra Mohan vs State of UP  Ors  A Panduranga Rao vs State of Andhra Pradesh  Ors  Mani Subrat Jain vs State of Haryana  Ors  MM Gupta  Ors
vs State of Jammu  Kashmir  Ors
   Chandra mouleshwar Prasad vs Patna High Court  Ors   High Court of Punjab  Haryana etc
vs State of Haryana  and Union of India vs Sankalchand Himatlal Sheth  Anr   referred to
As well settled the duty of the Governor to consult the High Court in the matter of appointment of District Judges is so integrated with the exercise of his power that the power can only be exercised in the manner provided by article 2331 or not at all
Normally as a matter of Rule the recommendations of the High Court for the appointment of a District Judge should be accepted by the State Govern ment and the Governor should act on the same
If in any particular Case the State Government for good and weighty reasons  finds it difficult to accept the recommendations of the High Court the State Government should communicate its views to the High Court and must have complete and effective consultation with the High Court in the matter
In the instant case therefore before rejecting one panel forward ed by the High Court the State Government should have conveyed its views to the High Court to elicit its opinion
I66C E The fulfilment by the Governor of his constitutional obliga tion to 140 place full facts before the High Court was a pre condition before the State Government could arrive at a decision not to appoint respondents Nos 1 and 3 6 as District Judges
On its part there was a constitutional obligation cast on the High Court under article 2331 to express its opinion on a consideration of the facts and circumstances on the basis of which alone the nature of the problem could be appreciated and the right decision taken
Therefore the State Govern ment was wrong in taking a unilateral decision to cancel all steps taken in pursuance of the notification dated September 24 1983 and to issue a fresh notification inviting applica tions without taking the High Court into confidence
And the proper course for the High Court to adopt was to have issued a writ in the nature of mandamus requiring the State Government to place before the High Court the facts ie the difficulties as expressed in the letter of the Chief Minis ter dated March 4 1985 to elicit its opinion
166G 167A 13 The respective powers of the three wings of the State are well defined with the object that each wing must func tion within the field earmarked for it
The objects of such demarcation is to exclude the possibility of encroachment on the field earmarked for the wing by the other or theirs
As long as each wing of the State functions within the field carved out and shows due deference for the other two branch es there would arise no difficulty in the working of the Constitution
But when one wing of the State tries to encroach on the field reserved for the other special re sponsibility devolves upon the Judges to avoid an overactiv ist approach and to ensure that they do not trespass within the spheres earmarked for the other two branches of the State
Therefore the High Court could not intervene at a stage where the Council of Ministers had reviewed the situa tion and decided to reject the panel sent by the High Court and not to appoint any of the five advocates to be District Judges except by issuing a writ in the nature of mandamus requiring the State Government to refer back the matter to the High Court for reconsideration
168F 169A
21 It is well settled that a writ of mandamus is not a writ of course or a writ of right but is as a rule dis cretionary
There must be a judicially enforceable right for the enforcement of which a mandamus will lie
The legal right to enforce the performance of a duty must be in the applicant himself
In general therefore the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance
165C 22 The issuance of a writ of mandamus by the High Court direct 141 lag the State Government ie the Governor to act on the recommendation of the High Court to fill up the five vacan cies in the posts of District Judges meant for direct re cruitment from the members of the bar under article 2331 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 article 1631 of the Constitution precludes an inquiry as to the nature of the advice given by the Council of Ministers to the Governor still it has issued a writ in the nature of mandamus upon the basis that it is called upon to adjudge the legality and propriety of the two decisions taken by the State Government through the instrumentality of the Council of Ministers
By doing so the High Court has virtually tendered an advice to the Governor to act on the recommenda tion of the High Court ie contrary to the advice of the Council of Ministers and thereby entered into the process of decision making which as constitutionally impermissible
The Governor has to act on the advice of the Council of Minis ters under article 1631 in the matter of appointment of District Judges under article 233i and not on the advice of the High Court
Appointment of persons to be and posting and promotion of District Judges by the Governor under article 2331 is purely an executive function The High Court there fore had no authority or jurisdiction to issue any writ of mandamus of the kind complained of
It was certainly not open to the High Court to embark Upon an inquiry as to the reasons which impelled the Council of Ministers at the meeting held on February 28 1985 to review the decision taken on January 30 1985 and decide not to appoint anyone as a District Judge under article 2331 from the panel of names drawn up by the High Court
It was also not justified in observing that the reasons as disclosed by the Chief Minister in his letter dated March 4 1985 on the basis of which the Council of Ministers on February 28 1985 decided not to appoint respondents Nos 1 and 3 6 as District Judges on the recommendation of the High Court namely due to non representation of certain important communities or groups of communities were no reasons at all and in any event the reasons given were bad in law
There is no basis for the ridding reached by the High Court
167B D 164E G 3
Normally the principle of passing over laid down in Rule 15a of the Kerala State and Subordinate Service Rules 1958 is an integral part of the process of appoint ment and therefore the Government being the appointment authority would have the right to take a decision in the matter
But the Government failed to appreciate that the High Court plays a decisive rule in the matter of appoint ment of District Judges under article 2331
Adjudging suit ability of a candidate for appointment 142 as a District Judge under article 2331 is a function of the High Court which must necessarily imply that if the High Court finds that the candidate belonging to a particular community or group is not suitable for appointment it has to find a candidate from the community or group next follow ing in the cycle of rotation
It must logically follow as a necessary consequence that it is for the High Court to decide whether or not a particular community or group should be passed over under r 15a of the Rules for want of a suitable candidate and the vacancy be filled up from the community or group immediately next to the passed over community or group in the order of rotation or sub rotation provided in rule 14c
All that the State Government could do was to convey to the High Court the difficulties faced by the Government in implementing the recommendations
It must accordingly be held that the State Government wrongly as sumed to itself the power to decide the question whether the principle of passing over laid down in r 15a of the Rules should be resorted to or not
169F 170B 4
Whatever the Council of Ministers may say in regard to a particular matter does not become the action of the State Government till the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State
Before an advice of the Council of Ministers amounts to an order of the State Government there are two require ments to be fulfilled namely 1 The order of the State Government had to be expressed in the name of the Governor as required by article 1661 and 2 It has to be communicated to the persons concerned
It must therefore follow  that unless and until the decision taken by the Council of Minis ters on JanUary 30 1985 was translated into action by the issue of a notification expressed in the name of the Gover nor as required by article 1661 it could not be said to be an order of the State Government
Until then the earlier decision of the Council of Ministers was only a tentative one and it was therefore fully competent for the High Court to reconsider the matter and come to a fresh decision
170E G State of Punjab vs Sodhi Sukhdev Singh   and Bachhittar Singh vs State of Punjab  referred to