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Judicial Review of the act of Governor not to appoint candidates for Dt. Judges' post as recommended by the High Court and Writ ofMandamus, 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 recommendation of the High Court to fill up the vacancies in the posts of District Judges reserved for direct recruitment from the practisingmembers 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 Kerala State Higher Judicial Rules, 1961 and Rule 14(c) of the Kerala 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• laiddown in Rule 14(c) of the Kerala State and Subordinate Service Rules, 1958 be followed in the selection and appointment of District Judges bydirect recruitment. Under Rule 14(c) appointments shall be made in the order of rotation specified therein in every cycle of 20 vacancies. It isnot often that there is no eligible candidate available from a community or group of communities. To meet such a situation, r. 15(a) providesthat 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. Rule 15(b) enjoins that if a suitable candidate isnot available for selection from the group of communities classification 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 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 ScheduledTribes is available, the vacancy has to be filled by open competition. Rule 15(c) provides for restoration of the benefit of the tum forfeited atthe earliest opportunity. Proviso thereto however enjoins that the restoration of the benefit of the tum forfeited by the carry-forward rule, 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 back·ward classes. 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 ~ categoriesspecified in Rule 17(1). Categories 1 to 7 are Ezhavas arid Thiyyas, Muslims, Latin-Catholics and Anglo-Indians, Nadars, Scheduled Castes converts to Christianity, Viswakarmas and Dhooravas. All other backward classes put together constitute the 8th category. Rule 17(2) provides for sub-rotation among the other backward classes. In the last recruitment made in the year 1978 appointments had been made upto 7th tum 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 fifteencandidates adjudged on ~ overall assessment of the merits: One of the fifteen· candidates Ms. Mary Teresa Dias belonging to the LatinCatholic community, however, was considered unsuitable for appointment by the Committee by a majority of 2: I. On an approval of therevised panel of fourteen candidates by the Full Court by a majority at a meeting held on 12.6.1984, the said list was sent to the Chief Minister.As there was no candidate belonging to the 'Latin-Catholics and Anglo-Indians', 'Other Backward Classes and 'Scheduled Castes andScheduled Tribes', 8th, 10th and 12th in the cycle of rotation, the first vacancy had be filled by reason of rule IS(a) of the Rules by a suitablecandidate 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 'Ezbavas', Thiyyas and'Billavas', 14th in the cycle of rotation. The second vacancy i.e. 9th in the cycle rotation had to be filled by respondent No. 3, Krishnan Nair,1st in order of merit, by open competition. The third vacancy had to go to 'other Backward ·Classes', 10th in the cycle of rotation. As there wasno 'other Backward Classes' candidate belonging to the 'Scheduled Castes and Scheduled Tribes', 10th and 12th in the cycle of rotation, ithad to be filled by a Muslim candidate C. Khalid, respondent No. 4 who was 5th in order of merit and 16th in the cycle or rotation. The fourthvacancy 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 and11thin the cycle of rotation. The fifth vacancy was to be tilled by respondent No. 6 Rajappan Asari, a Viswakarma, 4th in order of merit and 20th inthe cycle of rotation.Shortly thereafter, on June 27, 1984, Ms. Mary Teresa Dias filed a petition under Article 226 of the Constitution for grant of a writ ofmandamus claiming her right to the first vacancy being a candidate belonging to the Latin-Catholic and Anglo-lndian community with a direction to the State Government not to fill up any of the five vacancies in the post of District Jugdes without inclusion of her name in the paneland a further direction to the High 'Court to forward her name for appointment as a District Judge. The said writ petition was howeverdismissed later on.Subsequently pursuant to a news item appearing on 31.1.1985 in several malayalam newspapers to the effect that the cabinet as its meeting held on 30.1.1985 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 candldate 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 ·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 perthe panel sent up by the High Court. Her application for grant of an ad-interim prohibitory order to restrain the State Government fromappointing only Respondents 3 to 6 as District Judges as per the Cabinet decision was ordered by a learned Single Judge on a prima facie casebeing made out.The State Government having been restrained from making the appointments for a period of one month. i.e. till March 20, 1985, thematter 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 recruitment of District Judges from the bar afresh and decided not toappoint anybody from the panel of names recommended by the High Court due to non-representation of 'Latin-Catholics and Anglo-Indians' 'Other Backward Classes' and 'Scheduled Castes and Scheduled Tribes', 8th, 10th, and 12th turns in the cycle of rotation,However, the Kerala High Court allowed the writ petition filed by Respondent A. Laksbmikutty by its judgment and order dated29.4.1985, quashed the Cabinet decisions of 30.1.1985 and 28.2.1985 and issued a writ in the nature of mandamus directing the respondentsState to fill up five vacancies in the posts of District Judges meant for direct recruitment from the bar, by the appointment of Respondents 1and 3 to 6 as recommended by the High Court under Article 233 (1) of the Constitution. Hence the State appeals, by special leave. |
