JUDGMENT Gopalan Nambiyar, C. J. 1. This is an appeal by the State against the judgment of a learned Judge who allowed the Writ Petition by the 1st respondent and directed his appointment "in the next available vacancy as Excise Inspector". The respondent was selected by Ext. P-1 memo dated 1st July 1974. The memo itself stated that the selection was subject to R.3(c) of the Kerala State and Subordinate Service Rules, 1958 and subject to satisfactory proof of health and whatever further checking Government may find it necessary to do. By Ext. P-2 memo dated 17th February 1975 the 1st respondent was informed by the Public Service Commission that the advice for his recruitment as Excise Inspector by Ext. P-1 letter of the Commission was cancelled. This had been preceded by Ext. P-3 dated 25th January 1975 (referred to in Ext. P-2) by which the 1st respondent was informed by the Government that his selection could not be given effect to as on verification under R.10 of the Kerala State and Subordinate Service Rules, his character and antecedents were found to be unsatisfactory. The learned Judge did not expressly quash Ext. P-3; but quashed Ext. P-2, and directed the 1st respondent's appointment as noted earlier. Briefly stated, the learned Judge's view was that it was only when the advice was sent under some misunderstanding that the Public Service Commission can cancel the advice; and while so cancelling, the Commission should act in accordance with the principles of natural justice and hear the party concerned. In regard to Ext. P-3 although the learned Judge did not in express terms declare it illegal or quash it, there can be little doubt that the learned Judge was discussing Ext. P-3 order in Para.7 of his judgment. There the learned Judge referred to R.10(b)(iii) of the Kerala State and Subordinate Service Rules and was of the view that there should be proper materials before the Government for taking action under the rule and holding that a person had to be discharged from service. The learned Judge noted that the assessment of the 1st respondent's character and antecedents had been based on the report of the Accountant General under whom the 1st respondent had been previously employed and who had terminated his service under R.5 of the Central Civil Services (Temporary Service) Rules, 1965. The learned Judge noted that the assessment of the 1st respondent's character and antecedents had been based on the report of the Accountant General under whom the 1st respondent had been previously employed and who had terminated his service under R.5 of the Central Civil Services (Temporary Service) Rules, 1965. This termination was not on the basis of any misconduct, and would not cast. any stigma on the 1st respondent. To take such action into account on the report of the Accountant General that the 1st respondent was participating in the activities prejudicial to the smooth and orderly running of the Government administration, without affording him an opportunity for explanation, was unfair and illegal, and violative of the principles of natural justice. Such was the learned Judge's view. 2. We shall quote R.3(c) and R.10(b)(iii) and Note 2 thereof, as those are material rules for the purpose of this case. "R. 3(c). Notwithstanding anything contained in these rules, the Commission shall have the power to cancel the advice for appointment of any candidate to any service if it is subsequently found that such advice was made under some mistake or such cancellation the appointing authority shall terminate the service of the candidate: Provided that the cancellation of advice for appointment by the commission and the subsequent termination of service of the candidate by the appointing authority shall be made within the period of probation of the candidate. The provisions in this sub-rule shall be deemed to have come into force on the 31st July 1969". "Qualifications: 10(6) No person shall be eligible for appointment to any service by direct recruitment, unless- (i) * * * * (ii) * * * * (iii) the State Government are satisfied that his character and antecedents are such as to qualify him for such service: Provided that, before the Government are satisfied of the character and antecedents of a person selected/advised for appointment by direct recruitment, the appointing authority may appoint him/her temporarily under clause (i) of sub-r.(a) of R.9 of these rules subject to the condition that his/her appointment shall be terminated without notice if Government are not satisfied of his/her character and antecedents on subsequent verification and that he/she shall be eligible for appointment: in regular service in accordance with the Rules only if his/her character and antecedents are found satisfactory on subsequent verification. Note: (1) * * * * Note: (2) The appointing authorities shall get the necessary details for verification of character and antecedents of the candidates advised by the Commission from the candidates themselves before they are allowed to join duty and the appointing authorities shall obtain the reports on the verification of character and antecedents of the candidates so advised within a period not exceeding six months from the date of joining duty of the candidates". 3. By C.M.P. 7545 of 1978 filed in the Writ Appeal the 1st respondent has produced Exts. P-4 to P-7. Ext. P-4 dated 22nd January 1973 is an order of termination by the Deputy Accountant General, Trivandrum. Ext. P-5 dated 29th September 1975 is the order of appointment of the petitioner as Assistant Grade II in the Administrative Secretariat; and Ext. P6 dated 15th February 1977 is the order relieving him at his request from the post of Assistant Grade II as he had been appointed as Senior Superintendent in the Advocate General's Office. Ext. P-7 dated 7th February 1977 is the said order of appointment as Senior Superintendent, subject to verification of his character and antecedents. 4. The question is whether R.10(b)(iii) of the rules quoted above violates Art.16 or Art.311 of the Constitution, or the principles of natural justice The rule is applicable to all persons alike, without distinction; and it does not, to our mind, spell a violation of Art.16 But the reasoning which is reflected in the judgment of the learned Judge is that if a person were to be ousted without being afforded an opportunity to show cause, the rule is likely to be used to perpetuate favouritism or victimisation by the Government. But it is well settled that mere prospect of abuse of a statutory provision is no ground to strike down the provision itself. (Vide Pannalal's case AIR 1957 SC 397 ). Individual cases of abuse or victimisation can be struck down. 5. The question whether this Rule violates either with Art.16 or 311 of the Constitution, or the principles of natural justice has actually been the subject matter of judicial decisions. In Sadanandan v. State of Kerala ( 1962 KLJ 699 ) Vaidialingam, J. of this Court (as he then was) pointed out that sub-r.(b) of R.3 will clearly show that a mere inclusion in a list shall not confer any claim to appointment. In Sadanandan v. State of Kerala ( 1962 KLJ 699 ) Vaidialingam, J. of this Court (as he then was) pointed out that sub-r.(b) of R.3 will clearly show that a mere inclusion in a list shall not confer any claim to appointment. The learned Judge further noticed the provisions of R.10(b)(ii) (the present R.10(b)(iii) regarding character and antecedents, and held that the State Government was entitled to lay down the requisite qualifications for recruitment to Government service and it was entitled to assess the character and antecedents of the person concerned. In this context the learned Judge observed thus: "The State Government categorically stated in the counter affidavit filed in both these matters, that after the names of the two petitioners were included in the list by the Public Service Commission, the Government made, by their usual channel, a verification regarding the character and antecedents of each of these petitioners and as a result of such verification, the two petitioners were found unsuitable for appointment, in the opinion of the Government. It is also categorically stated that the Government, on verification of their character and antecedents, was not satisfied about their suitability for their appointment. The State Government further repeats that it is really on this ground that the two petitioners' along with another individual were eliminated; and they also repeat that the petitioners were not rejected on grounds of health. Therefore, they have given a reason, based upon character and antecedents, for eliminating the petitioners, from appointment. In my view, the State Government is absolutely entitled to take those circumstances into account, because of the provisions contained in clause (ii) of sub-r.(b) of R.10 of the Kerala State and Subordinate Services Rules, 1958, which have been framed, in exercise of the powers conferred under the proviso to Art.309 of the Constitution. 5. In the view that I take the question as to whether the petitioners are entitled to ask for a writ of Mandamus and under what circumstances such a writ can be issued, do not arise for consideration, because I am not inclined to accept the contention of Mr. 5. In the view that I take the question as to whether the petitioners are entitled to ask for a writ of Mandamus and under what circumstances such a writ can be issued, do not arise for consideration, because I am not inclined to accept the contention of Mr. V. R. Krishna Iyer, learned counsel for petitioners that there has been any violation of the provisions of Art.16 of the Constitution." The learned Judge then further discussed the question of the violation of Art.16(1) and (2) of the Constitution and held that these had not been violated by the R.10(b)(ii) of the Rules. 6. The question came up again before a Division Bench of this Court in George v. State of Kerala ( 1963 KLJ 1155 ). The petitioner in that case had been selected for recruitment as a District Munsiff. R.2 of the Kerala Judicial Service (Recruitment of Munsiff's) Rules contained practically the same provision as R.10(b)(ii), that is, the present R.10(b)(iii). The petitioner was not appointed, because, his character and antecedents were found, on verification to be not satisfactory, Menon, C. J., who spoke for the Court, examining the correctness of the petitioner's exclusion from appointment with respect to Art.16(1) of the Constitution, stated: "11. It is clear from what is stated above that what is expected from the State in the matter of appointments is very much the same as what is expected from a public body in the United Kingdom. The powers of a public body in that behalf came up for consideration in Short v. Pools Corporation (1926-Ch. 66), a case of the termination of the services of a school teacher, Warrington L. J. said: " No public Body can be regarded as having statutory authority to act, in bad faith or from corrupt motives, and any action purporting to be that of the body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative. It may be also possible to prove that an act of the public body, though performed in good faith and without the taint of corruption, was so clearly founded on alien and irrelevant grounds as to be outside the authority conferred upon the body, and therefore inoperative. It is difficult to suggest any act which would be held ultra vires under this head, though performed bona fide. It is difficult to suggest any act which would be held ultra vires under this head, though performed bona fide. To look for one example germane to the present case, I suppose that if the defendants were to dismiss a teacher because she had red hair, or for some equally frivolous and foolish reason, the court would declare the attempted dismissal to be void.". 12. * * * * 13. This is not a case in which we can say there has been a lack of bona fides. In order to decide the petition in favour of the petitioner therefore, we must be able to say that the conclusion of the State that the petitioner's character and antecedents are not suitable for the appointment is based on considerations which are irrelevant and which should not have been taken into account. 14. Suppose for example, the view of the State was that only candidates above a particular height or below a particular weight can be considered as the possessors of a satisfactory character and a test on that basis was formulated and applied, it will be easy for a court to strike down that test and upset its application. But in cases where the tests are not so patently absurd or irrelevant, the position will naturally be different. The duty and the responsibility in these matters are primarily that of the State; its discretion by its very nature will have to be large and untrammelled; and a court cannot possibly substitute its own yard stick for that of the Government of the day. 15. All that a court can say is something very general: that the character and antecedents of a candidate for judicial appointment must be such as to ensure that he will -- in the words of the Judge's oath provided in the Constitution -- duly and faithfully and to the best of his ability, knowledge and judgment perform the duties of his office without fear or favour, affection or illwill and that he will uphold the Constitution and the laws. What exactly are the elements that will evidence and ensure such a character is the privilege and the duty of the appointing authority -- and not of a Court -- to decide. 16. What exactly are the elements that will evidence and ensure such a character is the privilege and the duty of the appointing authority -- and not of a Court -- to decide. 16. One of the questions that came up for discussion during the hearing was whether the fact that a candidate is a communist will be a relevant consideration for excluding him from any appointment. According to counsel for the petitioner such a consideration will be an irrelevant consideration and an exclusion based on such a ground will he violative of Art.16(1) of the Constitution. We are not at all certain that the submission is correct 17. Ideas rule mankind; and here we are in the realms of ideologies and their reactions on the make up and loyalties of a man. The yardstick to be applied will not be mechanical but elastic; various factors -- the extent of the dedication, the needs and temptations of the post concerned, the circumstances obtaining at the time of the appointment all these and more -- must enter into the calculation and influence the conclusion. In such a region a Court should not and will not, as already indicated, substitute its own opinion for those of the executive with which rests the primary duly of appointment and the entire responsibility therefor." It is plain from the above discussion that the Division Bench was of the view that it is open to the State to take into account the character and antecedents of an applicant before he is appointed to government service; that in assessing his character and antecedents the State was not to proceed on arbitrary and irrelevant considerations, and that generally, in this region of assessment, the court should not constitute its own assessment for those of the executive, with which rests the primary duty of appointment. 7. Some guidelines and examples of irrelevance, vitiating the assessment can be gathered from the above judicial decisions. One of them we got from the English decision in Short v. Pooh Corporation (1926 Ch - 66) where a woman teacher was dismissed on account of her red hair. A second, is given by Menon C. J. in the George's Case (1963 KLJ 1953) of regarding height and weight as the acid test of a satisfactory character. One of them we got from the English decision in Short v. Pooh Corporation (1926 Ch - 66) where a woman teacher was dismissed on account of her red hair. A second, is given by Menon C. J. in the George's Case (1963 KLJ 1953) of regarding height and weight as the acid test of a satisfactory character. To the same category may well belong Caeser's assessment of Cassius, if the assessment "such men are dangerous" were to be based only on the "lean and hungry look" of Cassius. Yet a third category of irrelevance vitiating the assessment is furnished by the decision of one of us (myself) in the Sabarimala Melsanthi's Case (ILR 1970 (1) Ker. 231) holding that it was irrelevant to prescribe for an office of austerity and abstemiousness, qualifications based on opulence and plenty. 8. Balagopalan v. State of Kerala ( 1963 KLJ 1168 ) is another decision of a Division Bench of this Court where the Bench struck down the termination of service of a Lower Division Clerk in the Registration Department for unsatisfactory character and antecedents. The Division Bench was of opinion that the post in question was not a "sensitive post" and consequently the test of character and antecedents had no relation to the duties and responsibilities of the post. 9. In Dasan v. State of Kerala ( 1964 KLJ 162 ) the position again fell to be considered by a Division Bench of this Court in regard to the recruitment of a peon whose provisional appointment was terminated on verification of character and antecedents found unsatisfactory. Reference was made to the George's Case ( 1963 KLJ 1155 ). The Division Bench pointed out that the only question for consideration was whether extraneous considerations had influenced the State in terminating the services of the petitioner and held that on the basis of the facts before it, it could not but conclude that no extraneous or irrelevant consideration had influenced the State. A contention was raised that there was violation of Art.311. That was rejected in the following words : "The second contention of the petitioner is that Art.311 of the Constitution is attracted. A contention was raised that there was violation of Art.311. That was rejected in the following words : "The second contention of the petitioner is that Art.311 of the Constitution is attracted. It is impossible to say that it is, for, what we are dealing with is not a dismissal or removal as contemplated by that Article but the termination of the services of a provisional employee -- Purely provisional, in the Words of Ext. P-3 -- on the ground that his character and antecedents are such as to make him unsuitable for employment under the State." The two Division Bench rulings, between them, thus embody a rejection of the attack against the Rules, based on Art.16 and Art.311 of the Constitution. 10. The decision of Mathew, J. of this Court (as he then was) in Kunhikrishnan Nair v. State of Kerala ( 1964 KLJ 1171 ) again dealt with the same question, and discloses a new facet and a different strand of reasoning. The termination in that case was of the services of a Panchayat Assistant for unsatisfactory character and antecedents. R.10(b) of the Kerala State and Subordinate Service Rules was noticed by the learned Judge and it was observed: "It seems to me that the rule regarding the character and antecedents of a person for appointment to the service is really a rule laying down one of the qualifications of that person for appointment to the service. In this connection I would refer to the decision of the House of Lords in Faramus v. Film Artistes' Association (1964 (1) All. E.R. 25). In that case a person was enrolled as a member of a Film Artistes' Association and he was accepted as a member and continued as such. He was later on elected to the Executive Committee of the Union. In 1950 it was found that he had two previous convictions. R.4(2) of the Union's Rules reads as follows : 'No person who has been convicted in a court of law of a criminal offence........ shall be eligible for, or retain membership of the Association'. It was held that on a true construction of R.4(2), the person having been convicted of criminal offences, could not have been admitted as a member of the Union and that his admission membership was therefore void. shall be eligible for, or retain membership of the Association'. It was held that on a true construction of R.4(2), the person having been convicted of criminal offences, could not have been admitted as a member of the Union and that his admission membership was therefore void. In the course of his speech Lord Evershed said : 'It is no doubt true, as counsel for the appellant submitted, that the word 'eligible according to the dictionary may, in certain contexts, mean 'suitable for election', as distinct from 'qualified for election'. As I have said, however, in the context of the phrase in the present rule I cannot for my part entertain any doubt but that, as a matter of English, the word 'eligible' must mean and can only mean 'Legally qualified'.' In the Court of Appeals in Faramus v. Film Artiste's Association (1963 All. E. R.636 at 645) Upjohn L. J. said: 'If a person is not qualified in accordance with the terms of the rule, he cannot be admitted to membership, he is ineligible.' So, as the appointing authority was not satisfied about the character and antecedents of the petitioner, he was ineligible for being appointed to the service, which means that he had no qualification for being appointed to the service. Therefore Ext. P-4 order can only mean that the Government have finally decided that the petitioner was ineligible for appointment. It cannot therefore be said that the petitioner's service as Panchayat Executive Officer was terminated by Ext. P-4 as the appointment itself was void. In this view of the matter no question of the applicability of Art.311 arises in this case." The learned Judge then considered whether there was violation of Art.16 of the Constitution. The argument presented was that termination on the ground that the character and antecedents are not satisfactory would taint a person with a 'badge of infamy' which would ruin his reputation, and therefore an opportunity for explanation should be afforded to the person concerned. The argument presented was that termination on the ground that the character and antecedents are not satisfactory would taint a person with a 'badge of infamy' which would ruin his reputation, and therefore an opportunity for explanation should be afforded to the person concerned. (That argument found favour with the learned Judge in the instant case.) Mathew, J. noticed the decision in the George's Case (1963 KLT 1155) and certain other decisions, and the essential aspects involved in the submissions made on either side, and observed: "Even if a person has no right to a Government job, he has a right to be free from damage to his reputation which might seriously hamper his future prospect to get an employment. An exclusion from Government service on the ground that a person's character and antecedents are not acceptable to the appointing authority may affect his reputation and may make him ineligible for future employment. To be deprived not only of the present Government employment but of the future opportunity for it certainly is no small injury when the Government employment so dominates the field of opportunity. Therefore, if a person has a right to be free from damage to his reputation it might follow that the Government or the authority, if they want to exclude a person from service on the ground that his or her character and antecedents are not acceptable, should give him or her an opportunity of being heard. * * * * It is true that the problem of security is really a matter for the executive and the Government should not be paralysed in handling it. But the question still remains whether the security problem relates only to sensitive areas where the secrets are or may be available and where critical policies are being formulated. It may not be necessary to extend the sensitive areas to posts other than those of defence and internal security." After further discussion the learned Judge concluded that he was bound by the Division Bench ruling in the Dasan's Case ( 1964 KLJ 162 ) and stated as follows: "8. It may not be necessary to extend the sensitive areas to posts other than those of defence and internal security." After further discussion the learned Judge concluded that he was bound by the Division Bench ruling in the Dasan's Case ( 1964 KLJ 162 ) and stated as follows: "8. Whether the equality of opportunity guaranteed by Art.16 of the Constitution is denied by a rule which leaves the adjudgment of the question of a candidate's eligibility to Government service to the subjective satisfaction of the appointing authority about his character and antecedents, is a matter upon which it is not necessary for me to pronounce any opinion, as I think that the decision of this case must he governed by the ruling of the Division Bench of this Court in Dasan v. Stale of Kerala (1964 (1) LLJ 570 = 1964 KLJ 162 ). Mr. V. R. Krishna Iyer, for the petitioner, urged that the view expressed by Lord Roid in Ridge v. Baldwin (1964 AC 40) that the right to notice and hearing is not dependent on a duty or obligation on the part of the authority to make a quasi judicial approach to the question, should govern the decision of this case. I think this matter also is concluded by the ruling of the Division Bench above referred to. I am bound to follow it" These represent, as far as we can see, the decisions of this Court dealing with this question. They have examined the question of termination of appointment for unsatisfactory character and antecedents, from the point of view of Art.16 and Art.311 and of violation of the principles of natural justice. No question of violation of Art.16 is involved as all persons are subject to the Rule. The possibility of arbitrariness and favouritism lurking in the practical implementation of the rule, is not sufficient to strike down the rule itself. Any individual case of nepotism, if brought to light, may well be relieved against. Art.311 cannot have application to provisional appointment, subject, by its express terms, to the qualification of character and antecedents being found satisfactory on assessment. Any individual case of nepotism, if brought to light, may well be relieved against. Art.311 cannot have application to provisional appointment, subject, by its express terms, to the qualification of character and antecedents being found satisfactory on assessment. As was pointed out by Mathew, J. in Kunhikrishnan Nair v. State of Kerala ( 1964 KLJ 1171 ) and by other decisions, the appointment itself, made before assessing the character and antecedents, was an inchoate, or a void appointment, and its termination cannot involve the requirement of opportunity or violation of the principles of natural justice. R.10(b)(iii), as its title indicates, prescribes one of the qualifications for appointment. 11. The view taken by the learned Judge, that the rule offends Art.16 or Art.311 or the principles of natural justice cannot be sustained. In the light of the decisions discussed, we cannot say that the assessment of character and antecedents of the 1st respondent made in this case was arbitrary or based on irrelevant consideration or on no material. A report was called for and received from the Accountant General under whom the petitioner was employed previously, regarding his habits and associations during the time he served under the Accountant General. That was the foundation for assessment. A person is judged by the company that he keeps and the habits and the associations he forms. The concerned file was made available to us by the learned Advocate General. All that we can say in this case is, that we would not be justified in holding that the State Government acted without any materials at all or on irrelevant material. 12. One other complicating feature is likely to arise, if, we are to proceed to examine the material for assessment. That is a possible plea of privilege. See the discussion on this aspect in Dasan's Case ( 1964 KLJ 162 ), (para 10). This aspect has assumed prominence in some of the recent decisions. We do not propose to dilate further on this. Nor need we discuss on our own, the illuminating legal literature that has grown up around this question in other systems of jurisprudence. 13. The learned Judge was wrong in directing the appointment of the 1st respondent in the next available vacancy. We do not propose to dilate further on this. Nor need we discuss on our own, the illuminating legal literature that has grown up around this question in other systems of jurisprudence. 13. The learned Judge was wrong in directing the appointment of the 1st respondent in the next available vacancy. We have already noticed the decision of Vaidialingam, J. and the statutory provision in S.3 of the Kerala State and Subordinate Services Rules that inclusion in a list confers no title to appointment. A Division Bench of this Court had also ruled to that effect -[Vide Public Service Commission v. Kesavan Nair ( 1977 KLT 818 )]. The principle was restated in subsequent decisions also. The 1st respondent had only a right to be considered for appointment. In view of these the learned Judge should not have directed the appointment of the 1st respondent in the next available vacancy. 14. We should record that counsel for the Public Service Commission fairly stated that it was difficult to justify Ext. P-2 on the basis of R.3(c), as the Commission's advice, made before verification of character and antecedents, cannot be said to be vitiated by a 'mistake', which is the ground of cancellation envisaged by the rule. But the Commission's action is really irrelevant and immaterial. The Government had effectively denied appointment in the wake of the Commission's advice, and it mattered little if the Commission's advice was cancelled or not. Also, as pointed out in Kunhikrishnan Nair's Case ( 1964 KLJ 1179 ) the appointment itself was inchoate and void, and hardly required any cancellation. Interest of justice, did not require quashing Ext. P-2 under Art.226; and even if it were to be quashed, the 1st respondent would only score a Pyrrhic Victory, so long as Ext. P-3 was outside the pale of attack, as we hold it to be. We accordingly allow this appeal and set aside the Judgment of the learned Judge and direct that the O.P. 985 of 1975 will stand dismissed without any order as to costs.