1986 (11) TMI 393 - SC - Indian Laws

Supreme Court quashes mandamus directing Governor to appoint advocates as District Judges under Article 233(1)

The SC set aside the HC's mandamus directing the Governor to appoint five advocates as District Judges under Art. 233(1). The Court held that the HC could ... Validity issuance of a writ of mandamus by the of High Court directing the Governor to act on the recommendation of the High Court to fill up the five vacancies in the posts of District Judges reserved for direct recruitment from the practising members of the bar under Art. 233(1) of the Constitution - Consultation between State Government and High Court - Meaning of word 'consultation' - HELD THAT:- 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 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. 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 conference was published in the Mathrubhoom and other Malyalam newspapers to the effect that the Government had decided to fill up four posts of District Judges, it could not be said that there was an order of the State Government in the manner required by Art. 166(1). What the news item conveyed was that the Council of Ministers had taken a decision to advise the Governor to appoint respondents nos. 3-6 as District Judges. The Governor has to act with the aid and advice of the Council of Ministers as required by Art. 163(1). Whatever the Council of Ministers may say in regard to a particular matter, does not become the action of the State Government till the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State. Before an advice of the Council of Ministers amounts to an order of the State Government, there are two requirements to be ful-filled. namely: (1) The order of the State Government had to be expressed in the name of the Governor as required by Art. 166(1) and (2). It has to be communicated to the persons concerned. See: Staff of Punjab v. Sodhi Sukhdev Singh, [1960 (11) TMI 119 - SUPREME COURT] and Bachhittar Singh v. State of Punjab. [1962 (3) TMI 84 - SUPREME COURT]. It must therefore follow that unless and until the decision taken by the Council of Ministers on January 30, 1985 was translated into action by the issue of a notification expressed in the name of the Governor as required by Art. 166(1), it could not be said to be an order of the State Government. Until then. the earlier decision of the Council of Ministers was only a tentative one and it was therefore fully competent for the High Court to reconsider the matter and come to a fresh decision. It is said reflect that there should have been this unfortunate discord between the High Court and the State Government over the direct recruitment of District Judges from the bar under Art. 233(1). This was mainly because there was failure to appreciate on the part of both the respective functions of each. We hope and trust that the State Government and the High Court in the consultative process would come to a solution of the problem acceptable to both as early as possible. Due to the constitutional impasse created, the matter is at a standstill. In the result, the appeals succeed and are allowed to the extent indicated herein. The judgment and order of the High Court directing the issuance of a writ of mandamus commanding the State Government to appoint respondents Nos. 1 and 3-6 as District Judges under Art. 233(1) of the Constitution are set aside. We instead direct that a writ in the nature of mandamus shall be issued to the State Government 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 consequence, the State Government's decision not to make appointments from the panel forwarded by the High Court and to renotify the vacancies must stand quashed. The High Court shall also comply 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. Appeals allowed. Issues Involved:1. Review of Cabinet Decisions2. Issuance of Writ of Mandamus3. Consultation between State Government and High CourtSummary:1. Review of Cabinet Decisions:The Supreme Court addressed whether the Kerala High Court was justified in holding that the Council of Ministers could not review their earlier decision and decide not to make appointments contrary to the initial decision. The High Court had quashed the Cabinet decisions of January 30, 1985, and February 28, 1985. The Supreme Court held that the Council of Ministers was competent to reconsider and review its decisions, as the initial decision was only tentative until it was translated into action by an order expressed in the name of the Governor as required by Art. 166(1).2. Issuance of Writ of Mandamus:The Supreme Court considered whether the High Court could issue a writ of mandamus directing the State Government to appoint respondents Nos. 1 and 3-6 as District Judges under Art. 233(1) of the Constitution. The High Court had issued such a writ, but the Supreme Court found this to be constitutionally impermissible. The Court emphasized that the Governor must act on the advice of the Council of Ministers under Art. 163(1) and not on the advice of the High Court. The issuance of a writ of mandamus in this context was deemed an overreach of judicial authority.3. Consultation between State Government and High Court:The Supreme Court examined whether there was real, full, and effective consultation between the State Government and the High Court as required by Art. 233(1) before the decision to reject the panel forwarded by the High Court. The Court reiterated that consultation must be meaningful and not a mere formality. The State Government should have conveyed its views to the High Court to elicit its opinion before arriving at a decision. The Supreme Court directed that a writ in the nature of mandamus be issued to the State Government requiring it to communicate its views to the High Court within six weeks and, if necessary, make a fresh effort to find suitable candidates from the communities or groups passed over before taking a final decision.Conclusion:The appeals were allowed, and the judgment and order of the High Court directing the issuance of a writ of mandamus were set aside. The Supreme Court directed the State Government to communicate its views to the High Court and, if necessary, make a fresh effort to find suitable candidates before making a final decision. The decision of the State Government not to make appointments from the panel forwarded by the High Court and to renotify the vacancies was quashed. The High Court was also directed to comply with the directions issued by the Supreme Court in related cases.