Judgment :- Bhat, J.- Petitioner in O.P. No. 905/85 has filed this O.P. seeking to quash the decision taken on 30-1-1985 by the first respondent. State of Kerala. to appoint respondents 3 to 6 as District Judges in the Kerala Higher Judicial Service by way of direct recruitment from the Bar and seeking writ of mandamus directing the first respondent to appoint the petitioner as District Judge and to fix the order of preference above respondents 3 to 6. Subsequently. she amended the O.P. seeking the issue of a writ of mandamus directing the first respondent to make appointment to the post of District Judge by direct recruitment based on the panel of names recommended by the High Court and based on the ranking given thereunder and to declare the review/ decision dated 28-2-1985 of the State Government cancelling the panel or list and deciding to invite fresh applications for direct recruitment from the Bar as illegal and unconstitutional. 2. The fourth respondent in OP. No. 905/1985 has filed O.P.No. 2781/1985 seeking a writ of certiorari quashing the decision of the Government dated 28-2-1985 and a writ of prohibition restraining the first respondent. State of Kerala. from inviting fresh applications for the posts of District Judges and & writ of mandamus directing the first respondent to issue order of appointment of the petitioner as District Judge from the pane! already forwarded by the High Court. Respondents 3 to 5 in O.P. 905/1985 have filed O.P. No. 2732/1985 and sixth respondent in O.P. No. 905/1985 has filed O.P.No. 3243/1985 seeking similar reliefs. Parties to these original petitions will be referred to by their rank in O.P.No. 905/1985. 3. Disputes raised in the original petitions relate to direct recruitment from Bar for the post of District judge governed by the Special Rules relating to the Kerala State Higher Judicial Service. Under rule 2(b) of the Special Rules. one third of the permanent places (of District Judges) shall he filled up by direct recruitment from the Bar. Principles of reservation for candidates belonging to Scheduled Castes and Scheduled Tribes and Other Backward Communities contained in rules 14 to 17 of the Kerala State and Subordinate Services Rules (for brevity "General rules") have been made applicable to such direct recruitment. Three vacancies having arisen in the quota reserved for direct recruitment. the State Government. at the instance of the High Court. Three vacancies having arisen in the quota reserved for direct recruitment. the State Government. at the instance of the High Court. issued notification dated 24-9-1983 (published in the Gazette dated 11-10-1983) calling for applications from eligible members of the Bar. The valid applications were forwarded by the Chief Minister to the ag. Chief Justice (as he then was) along with letter dated 1-2-1984. The High Court considered the applications at the meeting of Departmental Full Bench (of ail the judges) held on 15-3-1984 and constituted a committee consisting of the three seniormost Puisne Judges to prepare a panel of names for selection after interviewing the candidates. Since it was felt that service of two of the members of the committee would not be available as they were to assume charge as Chairman and Member respectively of the- Coaimission constituted under the Kerala Public Men (Prevention of Corruption) Act. 1983 by the third week of April. they were replaced by ten next two seniormost Puisne-Judges. 4. After conducting interview of candidates in May. 1984. on the basis of assessment of merit of the candidates at the interview. the committee found fifteen candidates eligible for consideration. Majority of the committee found one (a person belonging to Latin Catholic Community) among the fifteen ineligible for selection as District Judge in view of the criteria laid down in Rule 3(2) (c) of the Special Rules and paragraph (III) (c) of the notification and decided that the panel that has to be sent should contain names of only the remaining fourteen persons. Thus. the panel of fourteen names was prepared by the majority of the committee in accordance with the order of merit. The panel with report was received by the Acting Chief Justice (as he then was) on 1-6-1984 and circulated among all the Judges. It was placed at the meeting of the Departmental Full Bench held on 12-6-1984. The Departmental Full Bench by majority accepted the panel prepared by the majority of the committee. Accordingly. the fourteen names in the descending order of merit were sent by the Acting Chief Justice to the Chief Minister along with a letter dated 14-4-1984. 5. The panel of fourteen candidates includes the names of petitioner and respondents 3 to 6. their ranks in the descending order of merit being Nos.6.1. 5. 2 and 4 respectively. Accordingly. the fourteen names in the descending order of merit were sent by the Acting Chief Justice to the Chief Minister along with a letter dated 14-4-1984. 5. The panel of fourteen candidates includes the names of petitioner and respondents 3 to 6. their ranks in the descending order of merit being Nos.6.1. 5. 2 and 4 respectively. The letter also indicates that the three vacancies have to be filled up on the basis of the eighth turn (Latin Catholics and Anglo Indians). ninth turn (open competition) and 10th turn (Other Backward Classes) according to the rotation prescribed in Rules 14 to 17 of the General Rules. Since there is no candidate from among "Latin Catholics and Anglo Indians" in the panel. first vacancy has to be allotted to "Other Backward Classes" (OBC) in the 10th turn of rotation. The panel includes one candidate each from "Viswakarrna" and "Scheduled Caste convert" communities. These two communities. though they fall within the category "OBC". are not included in item 8 of Rule 17(1) of the General rules and according to the explanation to the armexure. these two communities cannot come in the 10th turn of the rotation. The panel does not include any candidate belonging to Scheduled Castes or Tribes. (which is the 12th turn in the rotation). Therefore. under Rule 15 of the General Rules. one has to go down the cycle of rotation and the vacancy has to be allotted to candidate belonging to "Ezhavas. Thiyyas. and Baklavas" community (for brevity "Ezhava"). The only candidate in the panel belonging to this community is the petitioner. The letter indicates that on the basis of the panel and the rules regarding communal reservation. first vacancy has to go to the petitioner. The second vacancy. being "open competition" vacancy. has to go to the person ranked as No.l in the panel viz.. third respondent. Third vacancy should go to candidate belonging to "OBC". The two OBC candidates in the panel are not eligible for this vacancy according to the explanation to the armexure as indicated already. There is no Scheduled Caste candidate in the panel appropriate to the 12th turn of the rotation. Ezhava candidate appropriate to the 14th turn has to be provided for in the first vacancy. Therefore. under the rules of reservation. third vacancy has to go to Muslim candidate appropriate to the 16th turn of the rotation. There is no Scheduled Caste candidate in the panel appropriate to the 12th turn of the rotation. Ezhava candidate appropriate to the 14th turn has to be provided for in the first vacancy. Therefore. under the rules of reservation. third vacancy has to go to Muslim candidate appropriate to the 16th turn of the rotation. First Muslim candidate in the panel is the fourth respondent and therefore he has to get the third vacancy. This is the position according to the panel recommended by the High Court in the light of the Rules of reservation. 6. Meanwhile. the number of permanent posts were increased from 24 to 32 and therefore two more posts fell within the one third quota reserved for direct recruitment from the Bar. The State Government appears to have decided to fill up the two additional posts as vacancies Nos. 4 and 5. According to the rules of reservation. these two vacancies have to be filled by "open competition" and candidate belonging to "Viswakarma" appropriate to the 20th turn in the rotation in the absence of any other Ezhava candidate in the 18th turn. Among the candidates in the panel. second in rank is the fifth respondent and the only "Viswakarma" candidate is the sixth respondent. Thus. on the basis of the panei and in the light of the Rules of reservation. vacancies Nos. 4 and 5 have to go to respondents 5 and 6 respectively. 7. Thus. if the panel recommended by the High Court is to be accepted and implemented. five vacancies in the direct recruitment quota are to be filled up by the petitioner and respondents 3 to 6. in that order. This position is not disputed by any of the parties before us. All these facts can be gathered from the counter affidavit filed by the second respondent. Registrar of the High Court of Kerala and the files made available by him. 8. One of the candidates;' interviewed! by the committee of judges and belonging to Latin Catholic community was one of the fifteen candidates chosen initially as eligible for consideration. However. she has not been included in the panel recommended by the committee or the High Court. She has filed O.P. 5713/84 challenging the legality of the recommendation and the same is pending. 9. Petitioner has produced Ext. P4. Photostat copy of a newspaper report published in the Mathrubhumi daily dated 31-1-1985. However. she has not been included in the panel recommended by the committee or the High Court. She has filed O.P. 5713/84 challenging the legality of the recommendation and the same is pending. 9. Petitioner has produced Ext. P4. Photostat copy of a newspaper report published in the Mathrubhumi daily dated 31-1-1985. According to the petitioner. the report was based on a press note issued by the Public Relations Department of the State Government. According to one of the counter affidavits filed on behalf of first respondent. the report was based on the information given to the press by the Chief Minister. The report states that the Council of Ministers at the meeting held on 30-1-1985 decided to keep one post vacant in view of the pendency of a case (presumably OP. 5713/84) and that respondents 3 to 6 are to be appointed on the basis of the recommendation of the High Court. That the report. is true in substance is accepted by the learned Advocate General. Learned Advocate General stated that the decision of the Government was two-fold. (1) to recommend filling up four vacancies by appointing respondents 3 to 6 and (2) to keep one vacancy open because (a) the first vacancy is to be allotted to a Latin Catholic/ Anglo Indian and it is because of the absence of Latin Catholic/Anglo 1ndian. OBC and Scheduled Caste candidates in the panel that "Ezhava" candidate is to be considered for appointment and (b) in view of the writ petition filed by the Latin Catholic candidate. 10. It appears. the Council of Ministers at a subsequent meeting held on 28-2-1985 reviewed the entire position. The counter affidavit filed on 15-3-1985 on behalf of the State in O.P. 905/1985 and sworn to by the Commissioner and Secretary to Government. Home Department states: "The Government reviewed their recommendation on 28-2-1985 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-representation 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. The non-representation 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." The second counter affidavit filed on behalf of the State in O.P. 905/1985 and sworn to by the same deponent states in paragraph 2: "there was no screen rig of the petitioner under Rule 3(c) by the Government. The Government have now decided that before the applications are sent to the High Court for making recommendations it will be more appropriate to screen the applicants under Rule 3(c) of the Higher Judicial Service Rules." In paragraph 3 it is stated: "The Cabinet decision referred to in Ext. P4 is liable to be reviewed under the circumstances narrated in the counter-affidavit already filed by me. The decision taken by the Cabinet to abandon the list sent up by the High Court has been reported into the high Court on 4-3498i and it is not correct to say that it has not been communicated." In paragraph 5 it is stated: "The difficulty felt by the Council of Ministers in accepting the recommendations made by the High Court is detailed in the counter-affidavit filed by me earlier." 11. The decision taken by the Government or Council of Ministers on 28-2-1985 to cancel the list reviewing its earlier decision dated 30-1-1985 prompted the petitioner in O.P.905/85 to amend the O.P. seeking to challenge the later decision also. Respondents 3 to 6. who according to the earlier decision of the Government are to be appointed. are also aggrieved by the later decision to cancel the entire list recommended by the High Court and have filed the other three original petitions. These O.Ps. have come up before us on reference made by the learned Single Judges before whom they came up for consideration. Is the Court inquiring into whether any and if so what advice was tendered by the Council of Ministers to the Governor? 12. These O.Ps. have come up before us on reference made by the learned Single Judges before whom they came up for consideration. Is the Court inquiring into whether any and if so what advice was tendered by the Council of Ministers to the Governor? 12. We would like to make it clear that we are not called upon to conduct judicial review of the "advice" given by the Council of Ministers to the Governor. We are called upon only to adjudge the legality of the two decisions taken by the State Government (of course. through the instrumentality of the Council of Ministers). The Court is not trying to probe or enquire into "whether any and if so what advice was tendered by the Ministers to the Governor". which is barred by clause (3) of Article 163 of the Constitution. Such a probe or enquiry is unnecessary in the light of the statement in the counter affidavit filed on behalf of the State that Ext. P4 report was based on the information given to the press by the Chief Minister and the detailed reference to the second decision of the Council of Ministers in the counter affidavits. The decisions of the Government (that is the Council of Ministers) have been placed before the Court by the first respondent through the counter affidavits. Therefore. the question of enquiring into "whether any and if so what advice was tendered by the Ministers to the Governor" does not arise in this case; nor do we propose to conduct any such enquiry. Power and functions of the appointing authority. that is. the Governor: 13. In paragraph 7 of the counter affidavit filed on behalf of the State in 2.3. 2732/1985. it is stated that the Appointing Authority namely. the Governor. had not taken any decision. In paragraph 8 it is stated that the Governor is the Appointing Authority and nobody could question his actions. At page 8. it is stated that though the Governor is to act on the advice of the Council of Ministers. it is uncharitable to describe the Governor as a figurehead of the. Executive. It is further stated that the Governor has not acted upon the advice tendered by the Ministers nor had he made any appointment under Article 233 of the Constitution. If the underlying suggestion is that the appointing authority viz.. it is uncharitable to describe the Governor as a figurehead of the. Executive. It is further stated that the Governor has not acted upon the advice tendered by the Ministers nor had he made any appointment under Article 233 of the Constitution. If the underlying suggestion is that the appointing authority viz.. the Governor has to exercise his own judgment or discretion in the matter. we are afraid. such a position cannot be accepted as correct in the light of principles of law laid down by the Supreme Court in several decisions. including those in Rai Saheb Ram Jawahar Kapoor and others v. State of Punjab (AIR 1955 S. C. 549). Samsher Singh v. State of Punjab (AIR 1974 S.C. 2192) and Hari Datt Katnthla and another v. State of Himachal Pradesh and others (AIRJ980 S C. 1426). 14. In Samsher Singh's case. Ray C.J.. speaking for himself and four other members of the Bench observed: "Under the Cabinet system of Government as embodied in our Constitution the Governor *s the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion". The learned Chief Justice further observed: "The President as well as the Governor is the Constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers. I save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function. the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the Constitutional sense in the Cabinet system of Government. that is. satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the Constitutional sense in the Cabinet system of Government. that is. satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. The decision of any Minister or officer under rules of business made under any of these two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore. the decision of Minister or officer under the rules of business is the decision of the President or the Governor." (Emphasis supplied) In the separate but concurring judgment by Krishna Iyer J.. speaking for himself and on behalf of Bhagwati J.. it is stated in paragraph 153: "We declare the law of this branch of our Constitution to be that the President and Governor. custodians of all executive and other powers under various Articles shall. by virtue of these provisions. exercise their fortnal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations." 15. Appointment of District Judges under Article 233 of the Constitution is part of the executive function of the State. The formal appointing authority is undoubtedly the Governor. But the power of appointment exercised is the executive power of the State and so the executive action must be expressed in the name of the Governor who acts in this sphere solely on the aid and advice of his Council of Ministers. The decision therefore is that of the Government or the Council of Ministers. though the constitutional law requires it to be ultimately expressed in the name of the Governor. There can be no doubt that in the matter of appointment of District Judges. there is no independent power or discretion to be exercised by the appointing authority. The decision of the Government (Council of Ministers) is the decision of the appointing authority. Does clause (1) of Article 233 of the Constitution apply to appointment of District Judges by direct recruitment from the Bar? 16. We desire to clarify another minor. though startling. controversy raised at the Bar by the learned Advocate General. a controversy which has no foundation in the pleadings. The learned Advocate General. Does clause (1) of Article 233 of the Constitution apply to appointment of District Judges by direct recruitment from the Bar? 16. We desire to clarify another minor. though startling. controversy raised at the Bar by the learned Advocate General. a controversy which has no foundation in the pleadings. The learned Advocate General. while rightly pointing out that there are two sources of recruitment for the cadre of District Judges viz.. promotion from Subordinate Judges in the State Judicial Service and appointment by direct recruitment from members of the Bar. contended that consultation with the High Court as contemplated in clause (I) of Article 233 of the Constitution is required only in the matter of promotion of Subordinate Judges as District Judges and that consultation with the High Court is not contemplated in the matter of appointment of District Judges by direct recruitment from members of the Bar. which. according to him is exclusively governed by clause (2) of Article 233 of the Constitution. The learned Advocate General sought to place reliance for this purpose on two decisions of the Supreme Court in Mani Subrat Jain etc. v. State of Haryana and others (AIR 1977 S.C. 276) and Satya Narain Singh etc. v. High Court of Allahabad and others (AIR 1985 S.C. 308). Both the cases related to direct recruitment of District Judges from members of the Bar. 17. In Mani Subrat Jain's case. Ray C.J.. speaking for the three-member Bench observed that the High Court recommends the names of persons for appointment. though it is not obligatory on the Governor to accept the recommendation. However. in the same paragraph. the learned Chief Justice observed that the initial appointment of District Judges under Article 233 is within the exclusive jurisdiction of the Government after consultation 'with the High Court. This decision does not support the proposition canvassed by learned Advocate General. 18. In Satya Narain Singh's case. the three-member Bench of the Supreme Court noticed the existence of two sources of recruitment for the post of District Judge. one from the Subordinate Judiciary and the other from members of the Bar and negatived the claim of Subordinate Judges to be considered for direct recruitment. In discussing the legal position. the Court observed that the sources of recruitment are indicated in clause (2) of Article 233 of the Constitution. one from the Subordinate Judiciary and the other from members of the Bar and negatived the claim of Subordinate Judges to be considered for direct recruitment. In discussing the legal position. the Court observed that the sources of recruitment are indicated in clause (2) of Article 233 of the Constitution. This decision also does not support the contention of the learned Advocate General that in the matter of direct recruitment from the Bar. Government is not required to have consultation with the High Court. 19. Article 233 of the Constitution reads thus: "233. Appointment of district judges. - (1) Appointment of persons to be. and the posting and promotion of. district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jursidiction in relation to such S.tate. (2) A person not already in the service of the Union or of the State shall only be eligible to be appointed 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 appointment." 20. Clause (1) is the general provision relating to appointment of persons to be and the posting and promotion of district judges. This has to be done by the Governor of the State in consultation with the High Court. This clause must operate in relation to appointment of members of Bar to be district judges by direct recruitment and promotion of subordinate judicial officers as district judges. Clause (1) does not indicate the source of appointment or promotion. This is indicated in clause (2). The two sources are. persons already in the service of the Union or of a Slate and persons not in such judicial service. Obviously. the Constitution has left it to the rule-making authority to prescribe the qualifications and eligibility. Regarding persons not already in the judicial service. that is. members of the Bar. clause (2) itself lays down the basic criteria of eligibility. Unless he has been for not less than seven years an advocate or pleader and is recommended by the High Court for appointment such a person cannot be appointed. The scheme of the Article does not indicate that clause (1) relates only to promotion of persons as District Judges. Clause (I) relates to all appointments or promotions as District judges. Unless he has been for not less than seven years an advocate or pleader and is recommended by the High Court for appointment such a person cannot be appointed. The scheme of the Article does not indicate that clause (1) relates only to promotion of persons as District Judges. Clause (I) relates to all appointments or promotions as District judges. whatever be the source from which the candidates are chosen. while clause (2) is a special provision regarding candidates for direct recruitment from the Bar. There is no question of appointing a member of the Bar by direct recruitment. unless his name is recommended by the High Court. The recommendation is part of the process of consultation. There could also be further consultation after the recommendation. 21. In Chandramohan v. State of U.P. and others (AIR 1966 S.C.1987). Constitution Bench of the Supreme Court was dealing with dispute regarding direct recruitment from the Bar as well as promotion from judicial service. The court observed that exercise of power of appointment by Governor is conditioned by consultation with the High Court. He can only appoint a person in consultation with the High Court. High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person belonging to Judicial Service or Bar. Therefore. a duty is enjoined on the Governor to make appointment in consultation with the body which is the appropriate authority to give advice. In the words of Subba Rao C.J.. "Article 233(1) is nothing more than a declaration of the general power of the Governor in the matter of appointment of district judges." 22. The decision in Prem Nath and others v. State of Raj as than and others (AIR 1967 S.C.1599) rendered by another Constitution Bench of the Supreme Court also related to direct recruitment from the Bar. The relevant rules which did not contemplate consultation with the High Court were struck down as violative of Article 233 of the Constitution and therefore invalid. See also A. Pandurangam Rao v. State of Andhra Pradesh and others (AIR 1975 S.C.1922). Hart Datt Kainthla and another v. State of Himachal Pradesh and others (AIR 1980 S.C.1426) and M.M. Gupta and others v. State of Jammu and Kashmir (AIR 1982 S.C.1579). 23. We therefore hold that appointment of District Judges. from whichever source it may be. See also A. Pandurangam Rao v. State of Andhra Pradesh and others (AIR 1975 S.C.1922). Hart Datt Kainthla and another v. State of Himachal Pradesh and others (AIR 1980 S.C.1426) and M.M. Gupta and others v. State of Jammu and Kashmir (AIR 1982 S.C.1579). 23. We therefore hold that appointment of District Judges. from whichever source it may be. is to be made by the appointing authority in consultation with the High Court as contemplated in clause (1) of Article 233 of the Constitution. Recommendation by the High Court as contemplated in clause (2) of Article 233 is part of the consultative process. Whether the two impugned decisions of the Government are justiciable? 24. We have already indicated that we are not called upon to undertake judicial review of the "advice" given by the Council of Ministers to the Governor. We are called upon only to adjudge the legality of the two decisions taken by the State Government. The decisions constitute basis for executive action of the State and the decision of the Government or the Council of Ministers is the decision of the appointing authority. That being so. we find no inhibition against judicial review of the decisions. 25. It is further contended by learned Advocate General that the Government has absolute power to take such decisions as they deem fit and therefore the decisions are not justiciable. Such a contention comes too late in the day. particularly. after decisions of the Supreme Court in Okapi's case (AIR 1974 S.C. 555). Maneka Gandhi's case (AIR 1978 S C. 597). Kasthuri Lai's case (AIR 1980 S C. 1992). Ajay Hasia's case (AIR 1981 S.C. 487) and D.S. Ankara's case (AIR 1983 S.C.130). 26. In the above decisions. the Supreme Court has laid bare the dimensions and horizons of Articles 14 and 16 of the Constitution of 1ndia. Absolute power like absolute discretion are concepts which are alien to rule of law in a democratic republic. Every action of the executive Government must be informed and reasonable and be free from arbitrariness. That is the very essence of rule of law. Executive action should be based on standards which are not arbitrary and unauthorised. When the executive government is dealing with the public. whether by giving jobs or otherwise. Government cannot act arbitrarily at its sweet will but its action must be informed with standard or norm which is not arbitrary. That is the very essence of rule of law. Executive action should be based on standards which are not arbitrary and unauthorised. When the executive government is dealing with the public. whether by giving jobs or otherwise. Government cannot act arbitrarily at its sweet will but its action must be informed with standard or norm which is not arbitrary. irrational or irrelevant. The power or discretion vested in the executive government in such matters must be confined and structured by rational. relevant and non-discriminatory standards or norms. Every action taken by the executive Government must be in public interest. It is imperative in a democracy governed by rule of law that governmental action must be kept within the limits of law and if there is any transgression. the Court must be ready to correct it. As observed by the Supreme Court in Kasthuri Lai's case (AIR 1980 S.C 1992). it is a matter of historical experience that there is a tendency in every government to assume more and more powers and as it is not an uncommon phenomena that the legislative check is getting diluted. it is left to the court as the only other reviewing authority under the Constitution to be increasingly vigilant to ensure observance with the rule of law and in this task the court must not flinch or falter. The requirement of reasonableness runs like a golden thread through the entire fabric of the fundamental rights and in particular. the equality clauses of Articles 14 and 16. The equality clauses import something more than the doctrine of classification. It is the charter of reasonableness and non-arbitrariness. As observed by the Supreme Court in Maneka Gandhi's case (AIR 1978 S C. 597). equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other to the whims and caprices of an absolute monarch. When an act is arbitrary. it is implicit in itself that it is unequal both according to political logic and constitutional law. These principles apply to all executive actions. These principles apply to the decision of the executive government in the matter of appointment to the cadre of District judges. 27. The argument advanced by the learned Advocate General also reveals misapprehension about the scope of discretion vested in the executive government or administration. The doctrine of absolute discretion and non justifiability has been exploded long ago. These principles apply to the decision of the executive government in the matter of appointment to the cadre of District judges. 27. The argument advanced by the learned Advocate General also reveals misapprehension about the scope of discretion vested in the executive government or administration. The doctrine of absolute discretion and non justifiability has been exploded long ago. even in the United Kingdom. the land of parliamentary supremacy. In this connection. we need only refer to Padfield and others v. Minister of Agriculture. Fisheries and Food and others (1968 (2) A1k.e.r.694). Congreve v. Home Office (1976(1) AII.E.R.697). Secretary of State for Education and Science v. Metropolitan Borough Tameside (1976(3) AII.E.R.665). Lacer Airways Ltd. v. Department of Trade (1977(2) Al1.E.R.935) and Council of Civil Service Unions and others v. Minister for the Civil Service (1984(3) AII.E.R.935). 28. In the first of the decisions. the House of Lords rejected the theory that the Minister is not bound to give any reason at all in support of his decision or that if he gives no reason his refusal cannot be questioned. In support of Minister's refusal to act. he should at least have good reasons and if asked he should give them; if he does not do so. the court may infer that he has no good reason. If it appears to the court that the Minister has been and must have been influenced by extraneous considerations which ought not to have influenced him or conversely has failed. or must have failed. to take into account considerations which ought to have influenced him. the court has power to conduct judicial review. The court can issue a mandamus in an appropriate way. This reasoning of Lord Denning M.R. was approved by the House of Lords in appeal. Lord Reid observed that Parliament must have conferred the discretion on the Minister with the intention Thai it should be used to serve the policy and object of the Act. If the Minister by reason of having misconstrued the Act or for any reason so uses his discretion as to thwart or run counter to the policy and object of the Act. then law would be very defective if persons aggrieved were not entitled to the protection of the court. The learned Lord further observed: "If it it's the Minister's duty not to act so as to frustrate the policy and objects of the Act. then law would be very defective if persons aggrieved were not entitled to the protection of the court. The learned Lord further observed: "If it it's the Minister's duty not to act so as to frustrate the policy and objects of the Act. and if it were to appear from all the circumstances of the case that that has been the effect of the Minister's refusal. then it appears to me that the court must be entitled to act." Lord Morris of Borth-Y-Gest said: "An order of mandamus could only be made against the Minister if it is shown that in some way he acted unlawfully. A court could make an order if it were shown (a) that the Minister failed or refused to apply his mind to or to consider the question whether to refer a complaint or (b) that he misinterpreted the law or proceeded on an erroneous view of the law or (c) that he based his decision on some wholly extraneous consideration or (d) that he failed to have regard to matters which he should have taken into account." Lord Hudson in his speech approved the following observations of Lord Denning M.R. citing Lord Greene M.R. in Wednesbury Corporation case (1947 (2) All E.R.682): "a person entrusted with a discretion must. so to speak. direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider." Lord Upjohn in his speech observed: "The Minister in exercising his powers and duties. conferred upon him by statute. can only be controlled by a prerogative writ which will only issue if he acts unlawfully. Unlawful behaviour by the Minister may be stated with sufficient accuracy for the purposes of the present appeal (a) by an outright refusal to consider the relevant matter. or (b) by misdirecting himself in point of law. or (c) by taking into account some wholly irrelevant or extraneous consideration. or (d) by wholly omitting to take into account a relevant consideration He (Minister) may have good reasons for refusing an investigation. he may have. indeed. good policy reasons for refusing it. though that policy must not be based on political considerations which are pre eminently extraneous. So I must examine the reasons given by the Minister. or (d) by wholly omitting to take into account a relevant consideration He (Minister) may have good reasons for refusing an investigation. he may have. indeed. good policy reasons for refusing it. though that policy must not be based on political considerations which are pre eminently extraneous. So I must examine the reasons given by the Minister. including any policy upon which they may be based. to see whether he has acted unlawfully and thereby overstepped the true limits of his discretion. or. as it is frequently said in the prerogative writ cases. exceeded his jurisdiction. " The learned Lord later observed: "The (Minister) is a public officer charged by Parliament with the discharge of a public discretion affecting Her Majesty's subjects; if he does not give any reason for his decision it may be. if circumstances warrant it. that a court may be at liberty to come to the conclusion that he had no good reason for reaching that conclusion and order a prerogative writ to issue accordingly. The Minister in my opinion has not given a single valid reason for refusing to order an inquiry into the legitimate complaint of the South-Eastern Region; all his disclosed reasons for refusing to do so are bad in law." These principles nave been reiterated in the later decisions. 29. The dictum in Pad field's case (1968 (2) All E.R. 694) was reiterated in Tameside case (1976(3) All E.R.665). Lord Denning M.R. observed: "the Minister must direct himself properly in law. He must call his! own attention to the matters he is bound to consider. He must exclude from his consideration matters which are irrelevant to that which he has to consider. And the decision to which he comes must be one which is reasonable in this sense. that it. is. 01 can be supported with good reasons or at any rate be a decision which a reasonable person might reasonably reach." The appeal against decision of Court of Appeal was dismissed oy House of Lords. 30. In Council of Civil Service Union's case (1984(3) All E.R. 935). the House of Lords. while dealing with exercise of power derived under the prerogative. held that the exercise of power is not automatically immune from judicial review and the same is open to judicial review. 30. In Council of Civil Service Union's case (1984(3) All E.R. 935). the House of Lords. while dealing with exercise of power derived under the prerogative. held that the exercise of power is not automatically immune from judicial review and the same is open to judicial review. If the subject-matter of prerogative power is justiciable then the exercise of power is open to judicial review in the same way as a statutory power and the court could interfere in case of illegality. irrationality. unreasonableness or procedural impropriety. 31. These broad principles have been accepted by the Supreme Court of India. See State of Raj as than and others v. Union of India and others (AIR 1977 S.C.1361) and Kasthuri Lai's case (AIR 1980 S.C. 1992). In the former case. the Constitution Bench of seven judges was dealing with justifiability of the subjective satisfaction of the President in regard to dissolution of State Assemblies. The Court held that if satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds. the Court would have jurisdiction to examine the same because in that case there would be no satisfaction of the President in regard to the matter in which he is required to be satisfied. If reasons disclosed for the action proposed to be taken are wholly extraneous to the formation of the satisfaction. the Presidential proclamation would be open to attack that it is vitiated by legal mala fides. This is so even if the question has a political complexion. So long as the question arises whether the authority under the Constitution has acted within the limits of its power or exceeded it. it can be decided by the Court. As observed by Bhagwati J.. then. indeed. it would be the court's constitutional obligation to examine it. The Constitution is the supreme lax. the paramount law of the land. No department or branch of Government is above or beyond it. Every agent 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. While the Court cannot go into the question of correctness or adequacy of the facts and circumstances on which the satisfaction of the authority is based. if the satisfaction is mala fide or is based on wholly extraneous or irrelevant grounds. court would have jurisdiction to examine. While the Court cannot go into the question of correctness or adequacy of the facts and circumstances on which the satisfaction of the authority is based. if the satisfaction is mala fide or is based on wholly extraneous or irrelevant grounds. court would have jurisdiction to examine. In Kasthuri Lai's case. the Supreme Court held that every activity of Government must be informed with reason and every action taken by the Government must be in public interest and the action will be invalid if it is unreasonable or lacking in the quality of public interest. The principles of judicial review have been summarised succinctly in H.W.R. Wade on Administrative Law. 5th Edn.. Chapter XII at pages 347 to 364 and also in De Smith's Judicial Review of Administrative Action. 4th Edn.. Chapter VI at pages 278 to 286. 32. We therefore hold that within the limits mentioned above. the two impugned decisions are justiciable and can be subjected to judicial review. First decision of the Government-'Whether it is vitiated for any reason: 33. First decision of the Government consists of two parts; to keep one vacancy open and to recommend filling up of four vacancies by appointing respondents 3 to 6. The reasons given for keeping one vacancy open are (a) the first vacancy is to be allotted to a Latin Catholic/ Anglo-Indian. and it is because of the absence of Latin Catholic/Anglo Indian. O.B.C. and Scheduled Caste candidates in the panel. that Ezhava candidate (i.e.. petitioner) is to be considered for appointment and (b) the writ petition filed by the Latin Catholic candidate. To the extent Government decided on the appointment of respondents 3 to 6. there is no challenge before us. But. according to petitioner. the decision to appoint respondents 3 to 6 without deciding on the petitioner's appointment is unlawful and vitiated. The petitioner would further contend that the decision to keep one vacancy open is aiso unlawful and vitiated and in any event. even if the decision is valid. petitioner is entitled to be appointed and if anyone is to be dropped it is not the petitioner but the sixth respondent. 34. We will first consider the decision to keep one vacancy open. Considering the permanent strength in the cadre of District Judges. even if the decision is valid. petitioner is entitled to be appointed and if anyone is to be dropped it is not the petitioner but the sixth respondent. 34. We will first consider the decision to keep one vacancy open. Considering the permanent strength in the cadre of District Judges. five posts are to be filled up by direct recruitment from the Bar and considering the number of promotees occupying the post of District Judges. there are already five vacancies to be filled up by direct recruitment. The earliest of the vacancies arose as early as in 1980. The Special Rules lay down that one third of the permanent places of District Judges shall be filled by or reserved to be filled up by direct recruitment. Direct recruitment was long over due and considering the existing situation. promotees are in excess of their quota and direct recruits are short of their quota. 35. There is no dispute that according to Rules of reservation in the Special Rules. the five vacancies have to be filled up in the following manner: (1) Latin Catholics/Anglo Indians. (2) Open competition. (3) O.B.C. i. e.. O.B.C. referred to in item (8) of Rule 17 (1). that is. Backward Classes other than Ezhavas. Muslims. Scheduled Caste converts to Christianity. Nadars. Viswakarmas and Devadas. (4) Open competition and (5) Scheduled Castes. These are appropriate to turns 8 to 12 of the rotation prescribed in the annexure. The panel recommended by the High Court does not include candidates belonging to Latin Catholic/Anglo Indian community. O.B.C. (referred to in item (8) of Rule 17'(!)) and Scheduled Castes or Scheduled Tribes. According to Rule 15 when a candidate from a particular community entitled to reservation is not available. one has to go down the list in the annexure indicating the turns in the rotation or cycle and give the vacancy to the person available in the next.turn and soon. There is no dispute that consistent with the Rules of reservation and the principles of passing over. three reserved vacancies. Nos. 1. 3 and 5 would go to (1) Ezhava. (3) Muslim and (5) Viswakarma appropriate to turns 14.16 and 20 in the list given in the annexure (turn 18 mentions Ezhava and the panel does not include any Ezhava candidate other than petitioner). There is also no dispute that vacancies 2 and 4 should go by merit on open competition. 1. 3 and 5 would go to (1) Ezhava. (3) Muslim and (5) Viswakarma appropriate to turns 14.16 and 20 in the list given in the annexure (turn 18 mentions Ezhava and the panel does not include any Ezhava candidate other than petitioner). There is also no dispute that vacancies 2 and 4 should go by merit on open competition. If the recommendation of the High Court is accepted. the five vacancies should go to petitioner (Ezhava). third respondent (first ranked in open competition). fourth respondent (Muslim/. fifth respondent (second ranked in open competition) and sixth respondent (Viswakarma). Even proceeding on the basis of the panel. three out of the five vacancies will go to candidates belonging to Backward communities. 36. A candidate belonging to Latin Catholic community who was not included in the panel recommended by the High Court has filed O.P. 5713/ 1984 challenging the panel. In taking the earlier decision. the Government appears to have taken note of the pendency of that case. However. the court has not passed any order inhibiting appointments being made. Government also took into consideration that the first vacancy should go to Latin Catholic/ Anglo Indian candidate and Ezhava candidate (i. e. petitioner) gets preference only on account of the absence of Latin Catholic/Anglo Indian. O.B.C. and Scheduled Caste candidates. Learned Advocate General explained that it is the policy of the Government to ensure that persons belonging to these backward communities are also represented. 37. Clause(4) of Art.16 of the Constitution contemplates provision being made for reservation of appointments for posts in favour of any backward class of citizens not adequately represented in the service of the State. Articles 335. 341 and 342 of the Constitution are special provisions relating to Scheduled Castes and Scheduled Tribes. The constitutional concern for Scheduled Castes. Scheduled Tribes and Other Backward Communities find reflection in Rules 14 to 17 (and also Rule 17A regarding Scheduled Castes and Tribes) of the General Rules which have been adopted by the Special Rules in the instant case. Rule 14 deals with reservation of appointments. Unit of appointment shall be 20 of which 2 shall be reserved for Scheduled Castes and Tribes and 8 shall be reserved for Other Backward Classes and remaining 10 shall be filled on the basis of merit. Rule 14 deals with reservation of appointments. Unit of appointment shall be 20 of which 2 shall be reserved for Scheduled Castes and Tribes and 8 shall be reserved for Other Backward Classes and remaining 10 shall be filled on the basis of merit. Out of every 5 posts reserved for Scheduled Castes and Scheduled Trides.1 shall go to Scheduled Tribe candidate and remaining 4 to Scheduled Caste candidates and in the absence of a candidate to fill up the post reserved for Scheduled Tribe candidate. it shall go to Scheduled Caste candidate and vice versa. Clause (c) gives the order of rotation in every cycle of 20 vacancies. Vacancies in odd numbers relate to open competition. vacancies 4 and 12 should go to Scheduled Castes and Scheduled Tribes and the other vacancies should go to Other Backward Classes. Sub rotation between Scheduled Castes and Scheduled Tribes candidates is also laid down. Third proviso to clause (c) states that in preparing the list of eligible candidates to be appointed applying the rotations specified above in every cycle of 20 vacancies. the candidates eligible to be selected on open competition basis shall be selected first and then the candidate for the reservation turns. out of those available in the ranked list in the particular groups having regard .to their ranks. 38. Clause (a) of Rule 15 states that the integrated cycle combining the rotation in clause (c) of Rule Hand the sub-rotation in sub-rule (2) of Rule 17 shall be as specified in the Annexure to the part. 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 shall be filled up by a suitable candidate from the community or group of communities immediately next to the passed over community or group in the said Annexure in the order of rotation. If no suitable candidate is available for selection in any of the above communities or group of communities. selection shall be made from open competition candidates. Clause (b) deals with situation where suitable candidate is not available from Scheduled Castes or Scheduled Tribes. If no suitable candidate is available from these two groups. If no suitable candidate is available for selection in any of the above communities or group of communities. selection shall be made from open competition candidates. Clause (b) deals with situation where suitable candidate is not available from Scheduled Castes or Scheduled Tribes. If no suitable candidate is available from these two groups. selection shall be made from among the communities immediately next to the group of communities entitled to be appointed according to the turn allotted in the Annexure in the order of rotation. If no suitable candidate is available for selection in any of the communities or group of communities selection shall be made from open competition candidates. Clause (c) states that the benefit of the turn forfeited to a particular community or to a group of of community by reason of it being passed over under sub-rules (a) and (b ) shall be restored to it at the earliest possible opportunity. if a suitable candidate from that particular community or group is available for selection by making adjustment against the claims of the particular community or group that derived the extra benefit by reason of such pass over. Second proviso states that the said right of restoration shall not extend to a case where the selection has gone. to an open competition candidate. Rule 16 states that there should be sub rotation among the major groups of Other Backward Classes. Rule 17 deals with the grouping of Other Backward Classes for the purpose of Rule 16 and lays down the preference. It is unnecessary to refer to the details since on the facts there is no dispute before us. Rule 17A empowers the Government to make special recruitment from among Scheduled Castes and Scheduled Tribes. 39. Thus. we see that the above Rules constitute a complete code in the matter of reservation of posts for Backward communities. The Rules prescribe reservation of a definite percentage and definite number of posts. indicate the rotation between merit candidates. Scheduled Castes and Scheduled Tribes candidates and Other Backward Communities as well as sub rotation inter se among the Other Backward Communities. In the very nature of things. the rule-making authority had to contemplate situation where candidates from one or the other of the backward communities are not available in the ranked list for the purpose of appointment. Scheduled Castes and Scheduled Tribes candidates and Other Backward Communities as well as sub rotation inter se among the Other Backward Communities. In the very nature of things. the rule-making authority had to contemplate situation where candidates from one or the other of the backward communities are not available in the ranked list for the purpose of appointment. Among the several solutions possible to get over the situation the rule-making authority deliberately opted to adopt the principle of "passing over" and the principle of "restoration" and incorporated the same in Rule 15. Just as the other Rules of reservation contain statutory mandates. Rule 15 also contains statutory mandate to the effect that if a suitable candidate is not available for selection from a particular community or group of communities appropriate to the turn specified in the Annexure. the community or group shall be passed over and the post shall be filled up by a suitable candidate from the community or group immediately next in the order of rotation. and in the absence of any suitable candidate in any of the communities or groups. selection shall be made from open competition candidates; and the benefit of the turn forfeited to a particular community is to be restored to it at the earliest possible opportunity (namely in the next recruitment) if a suitable candidate from that community or group is available for selection. In fact. we are told that out of the seven posts already filled up by direct recruitment prior to 1980. when the turn of the Scheduled Castes arose. it was passed over for want of a suitable candidate and a Muslim candidate was appointed and in the next recruitment. a suitable Scheduled Caste candidate was available and the benefit was restored to the Scheduled Castes by making suitable adjustment. That was done in obedience to the statutory mandate in Rule 15 of the General Rules. 40. The scheme of reservation provides for all contingencies and naturally so. since administrative exigencies may require posts to be filled up even where suitable candidates are not available from particular backward communities. Rule 15 is an integral part of the scheme of reservation and rightly so. as we have already indicated. All these Rules are statutory Rules having equal relevance and significance. since administrative exigencies may require posts to be filled up even where suitable candidates are not available from particular backward communities. Rule 15 is an integral part of the scheme of reservation and rightly so. as we have already indicated. All these Rules are statutory Rules having equal relevance and significance. Abandonment of a process of recruitment or keeping vacancies open for want of suitable candidates from any of or all the backward communities is extraneous and foreign to and is not permitted by this scheme of reservation. On the other hand. the principle of passing over of a backward community or group of communities for want of suitable candidate from such community or group is part of the scheme of the statutory Rule. The State Government and the appointing authority are as much bound by Rule 15. as by other Rules of reservation. Rules relating to reservation do not entitle or permit the State Government either to abandon the process of recruitment or to cancel a ranked list for want of suitable candidate from any backward community or group of communities or to keep a vacancy open to be filled up later by candidates from such communities or groups. The mandate of the statutory rule is that the appointing authority shall fill up the posts according to the availability of suitable candidates in the ranked list. subject to the Rules of reservation and to the principle of passing over and subject also to the principle of restoration in the next recruitment. 41. It is true that going by the panel. Ezhava candidate has to be considered for appointment only because of absence of Latin Catholic/Anglo Indian. O.B.C. mentioned in item (8) of Rule 17(1) and Scheduled Caste. This is the reason mentioned for keeping one vacancy open. evidently to enable a candidate from one of these three groups to be appointed later. The same logic would apply to Muslim (4th respondent) and Viswakarma (6th respondent) also; they are also backward classes entitled to benefit of reservation. But their turn comes only after or in the absence of Latin Catholic/Anglo Indian. O.B.C. and Scheduled Caste candidates. The standard or norm which compels one vacancy to be kept open must necessarily compel the two other reservation vacancies also to be kept open. Yet the Government decided on the appointment of respondents 4 and 6 ! But their turn comes only after or in the absence of Latin Catholic/Anglo Indian. O.B.C. and Scheduled Caste candidates. The standard or norm which compels one vacancy to be kept open must necessarily compel the two other reservation vacancies also to be kept open. Yet the Government decided on the appointment of respondents 4 and 6 ! Nothing can be more arbitrary or unreasonable. 42. Therefore. we are of opinion that the reason given by the State Government for keeping one vacancy open without filling it up on the ground hat the vacancy is to be allotted to Latin Catholic/Anglo Indian community and it is because of the absence of such candidate or candidates of O.B.C. and Scheduled Castes in the panel that Ezhava candidate is to be considered for appointment. is absolutely irrelevant. extraneous and irrational. This reason is also contrary to tae Rules of reservation and in particular Rule 15 of the General Rules and therefore unlawful. The reason given is no reason at all. 43. Further. the State Government appear to have considered the writ petition filed by the Latin Catholic candidate who was not included in the panel approved by the High Court. Evidently. the Government wanted to provide fore contingency where she may have to be appointed later on. According to the Rules of reservation. Ezhava community is also a backward community. Assuming that the Latin Catholic candidate is to be ultimately appointed. that will not stand against the present petitioner. who is an Ezhava candidate. being appointed; that is because according to the available- of candidates in the panel. the next reservation vacancy will have to go to her. If at all one candidate has to be dropped. it can only be the sixth respondent and not the petitioner. The reservation candidates. respondents 4 and 6 cooed not be appointed without appointing an Ezhava candidate. who figures in the earlier turn in the annexure than Muslim or Viswakarma. as long as a suitable Ezhava candidate is available in the panel. Government have never found petitioner not to be a suitable candidate for appointment as District Judge. Even if there be a decision to keep one vacancy open because of the pendency of the writ petition filed by a Latin Catholic candidate. the only Ezhava candidate available viz.. the petitioner could not have been dropped. In these circumstances. Government have never found petitioner not to be a suitable candidate for appointment as District Judge. Even if there be a decision to keep one vacancy open because of the pendency of the writ petition filed by a Latin Catholic candidate. the only Ezhava candidate available viz.. the petitioner could not have been dropped. In these circumstances. we are satisfied that the decision to leave one vacancy open and not to appoint the only suitable Ezhava candidate available in the panel is unlawful in the sense that it is contrary to Rule 15 of the General Rules and the reasons urged in support of this decision are unsustainable as they are irrelevant. extraneous and even irrational. Therefore. this decision cannot stand and is liable to be interfered with. 44. Learned Advocate General submits that the Government had not screened the candidates for the purpose of rule 3(2) (c) of the Special Rules and therefore the question of appointing the petitioner did not arise. Rule 3 deals with qualifications of candidates for direct recruitment. Rule 3 states that a candidate shall satisfy six general conditions. namely. (a) he shall be a citizen of Indian Union or a person to whom a certificate of eligibility has been granted by the Ministry of Home Affairs. Government of India. (b) he shall not have completed 47 years of age on the first day of July of the year in which applications are invited. (c) he shall be of good character. (d) he shall be of sound health and active habits and free from any bodily defect or infirmity which renders him unfit for such appointment. (e) he shall not have more than one wife living unless exempted by Government on special grounds. (f) he shall be a practising advocate of the High Court of the State or Pleader of the District Court in the State and should have so practised for a period of not less than 7 years. The stand of the Government is that the character of the petitioner has not been verified. 45. We are surprised to hear such a submission made on behalf of the State. It could not be that the State Government verified the character of respondents 3 to 6 but failed to verify the character of the petitioner. Perhaps. we are asked to assume that no character verification has been made at all. If so. 45. We are surprised to hear such a submission made on behalf of the State. It could not be that the State Government verified the character of respondents 3 to 6 but failed to verify the character of the petitioner. Perhaps. we are asked to assume that no character verification has been made at all. If so. it becomes inexplicable to find that the State Government with all sense of responsibility decided to appoint or recommend appointment of respondents 3 to 6 without any such verification. The files do not show that this "reason" weighed with the State Government when it decided to appoint or recommend appointment of respondents 3 to 6 without deciding to appoint or recommend appointment of the petitioner. If the State Government wanted to verify the character of candidates. perhaps they could have done so. It is clear that the Government were satisfied about the suitability of the candidates recommended by the High Court. It is too late in the day for the State Government to contend that they have not verified the character of the petitioner. If the Government could be satisfied about the suitability of respondents 3 to b on the basis of the recommendation of the High Court. the same yardstick should be applicable to the case of petitioner also. 46. The Government have no contention that the petitioner has been found to be unsuitable for appointment to the post of District Judge. There is no such whisper in any of counter affidavits filed in any of these cases. This is particularly significant since the High Court has found the petitioner a suitable candidate for appointment as District Judge. Opinion of the High Court is not without weight. 47. Rule 2(c) of the Special Rules lays down that appointment shall be made on the basis of merit and ability. Rule 3(2) lays down the general conditions which the candidates must satisfy. One of the conditions. is that a candidate must be of good character. "Merit". according to Chamber's Twentieth Century Dictionary. means "excellence that deserves honour or reward: worth: value: desert: that which one deserves. whether reward or punishment: the intrinsic right or wrong". Naturally. merit of worth must include not only professional merit but also good character and integrity. In assessing merit of a candidate. the High Court naturally would be concerned with all these aspects. means "excellence that deserves honour or reward: worth: value: desert: that which one deserves. whether reward or punishment: the intrinsic right or wrong". Naturally. merit of worth must include not only professional merit but also good character and integrity. In assessing merit of a candidate. the High Court naturally would be concerned with all these aspects. A constitution Bench of the Supreme Court in Chandramohan v. State anup. and others (AIR 1966 S.C. 1987) has referred to professional ability. character. personality. physique and general suitability. In Chandramohan's case. the Supreme Court observed: "The High Court is expected to know better than the Governor in regard to suitability or otherwise of a person belonging to judicial service or #ar. Therefore. a duty is enjoined on the Governor to make appointments in consultation with the 'body which is the appropriate authority/ to give advice." (Emphasis supplied) Another Constitution Bench of the Supreme Court in State of Assam v. Ranga Mohammad (AIR 1967 S.C. 903) observed: "Constitution loses all meaning and becomes a mockery if what the High Court has to say is received with ill-grace or rejected out of hand. In such matters. opinion of the High Court is entitled to be of highest regard." 48. Yet another Constitution Bench of the Supreme Court ir; Chandra Mouleshwar Prasad v. Patna High Court and others (AIR 1970 S.C. 370) (though dealing with the question of promotion of judicial officers) observed: "Consultation with the High Court is not an empty formality. So far as promotion of officers to the cadre of District Judge is concerned. High Court is best fitted to judge the claims and merit of persons to be considered for appointment." In Hari Datt Kainthla and others v. State of Himachal Pradesh and others (AIR 1980 S.C.1426) the Court observed: "In order to make consultation meaningful and purposive. the Governor has to consult the High Court in respect of appointment of each person as District Judge and the opinion expressed by the High Court must be given full weight. Therefore when promotion is to be given to the post of District Judge the High Court unquestionably will be competent to decide whether a person is fit for promotion and consistent with its decision to recommend or not to recommend such person. Therefore when promotion is to be given to the post of District Judge the High Court unquestionably will be competent to decide whether a person is fit for promotion and consistent with its decision to recommend or not to recommend such person. The Governor who would be acting on the advice of the Minister would hardly be in a position to have intimate knowledge about the quality and qualification of such person for promotion. Similarly. when a person is to be directly recruited as District Judge from the Bar the reasons fat attaching full weight to the opinion of the High Court for its recommendation in the case of Subordinate Judicial service would mutatis mutandis apply because the performance of a member of the Bar is better known to the High Court than to- the Minister or the Governor." (Emphasis supplied) 49. In MM. Gupta and others v. State of Jammu and Kashmir (AIR 1982 S.C.1579) the Supreme Court noticed: "Unfortunately for some time past there appears go be an unhappy trend of interference in the matter of judicial appointments by the executive both at the State and the Central level. The unfortunate interference by the executive results in prolonged and unnecessary delay in making the appointments and judicial vacancies continue for months and in cases for years with the result that the cause of justice suffers." Noticing the mandate in Article 233 of the Constitution for consultation with the High Court. the Court observed: "If in the matter of appointment. the High Court is sought to be ignored and the executive authority chooses to make the appointment. independence of the judiciary will be affected. Persons who are interested in being appointed District Judges whether directly or by promotion will try to lobby with the executive and curry favour with the Government for getting these appointments and there is every possibility of the independence of such persons so appointed being undermined with the consequence that the cause of justice will suffer We are of opinion that normally. as a matter or rule. the recommendations made by the High Court for appointment of a District Judge should be accepted by the State Government and Governor should act on the same. If in any particular case. the State Government. for I good and weighty reasons. find it difficult to accept the recommendations of the High Court. as a matter or rule. the recommendations made by the High Court for appointment of a District Judge should be accepted by the State Government and Governor should act on the same. If in any particular case. the State Government. for I good and weighty reasons. find 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 convinced that there are good reasons for the objections on the part of the State Government. the High Court will undoubtedly reconsider the matter and the recommendation made by the High Court." (Emphasis supplied) The Court proceeded to observe further: "The High Court must be recognised to be the best judge of the requirements of proper and efficient administration of justice While making any recommendation no other extraneous matter weighs with the High Court. The High Court judges suitability for promotion in a detached manner taking into consideration all material facts and Relevant factors for promoting the cause of justice and efficient judicial administration in the State. It may be a problem for the High Court to properly post a person as District Judge whom the High Court considers not to be suitable for the post and to entrust him with the responsibility of a District Judge." 56. In the matter of leaving one vacancy open and in the matter of non-appointment of the petitioner. there has been no consultation at all with the High Court and that certainly is bad in law. In the light of the . above and in view of the fact that suitability of the petitioner has never been questioned by the Government at any stage. we are of opinion that the implied decision of the Government not to appoint the petitioner is contrary to law and arbitrary. This is certainly violative of the guarantee under Articles 1.4 and 16 of the Constitution. Second decision of the Government-whether it is vitiated for any reason: 51. According to the State Government". we are of opinion that the implied decision of the Government not to appoint the petitioner is contrary to law and arbitrary. This is certainly violative of the guarantee under Articles 1.4 and 16 of the Constitution. Second decision of the Government-whether it is vitiated for any reason: 51. According to the State Government". the earlier decision was reviewed by the Council of Ministers and it was decided (1) not to appoint anybody as recommended earlier and (2) to invite fresh applications for being placed before the High Court to prepare a fresh panel for recruitment. Three reasons are urged in support of these decisions: (a) non-representation of Scheduled Ca»tees. Latin Catholics/Anglo Indians and Other Backward Communities in the panel prepared by the High Court. (b) the fact that screening was not done by the Government in regard to character of the candidates. It appears. Government have decided that hereafter before applications are sent to the High Court for making recommendation. screening has to be done and (c) it is not healthy to give room for challenges in court as in this case. Evidently. the fact that O.P. 5713/84 and later O.P. 905/85 were filed weighed with the State Government According to the petitioners in all the original petitions. these are no reasons at all and at any rate. they are absolutely irrelevant and extraneous and ought not have been taken into consideration at all. They also contend that relevant considerations have been totally ignored by the Government. However. learned Advocate General would emphatically rebut these contentions and claim that the reasons which weighed with the Government are absolutely relevant. rational and justified. 52. We have already considered the scheme of reservation contained in Rules 14 to 17 of the General Rules and indicated that while the Rules provide for reservation in favour of Latin Catholics/Anglo Indians. Scheduled Castes and Other Backward communities. Rule 15 incorporates principle of passing over and subsequent restoration in favour of these communities. Other Backward Classes in Kerala Slate are enumerated in list III in the Schedule to Part I of the General Rules. The List includes 73 communities or groups. These classes are grouped into eight categories in Rule 17(1) of the General Rules. Categories 1 to 7 are Ezhavas. Muslims. Latin Catholics and Anglo Indians. Nadars. Scheduled Caste converts to Christianity. Viswakarmas and Devadas. The List includes 73 communities or groups. These classes are grouped into eight categories in Rule 17(1) of the General Rules. Categories 1 to 7 are Ezhavas. Muslims. Latin Catholics and Anglo Indians. Nadars. Scheduled Caste converts to Christianity. Viswakarmas and Devadas. All other Backward Classes put together constitute the eighth category. According to clause(2) (a) (ii) of Rule 17. out of every 40 appointments. 14 shall be given to Ezhavas. 12 to Muslims. 4 to Latin Catholics and Anglo Indians. 1 to Nadars.1 to Scheduled Caste converts to Christianity. 3 to Viswakarmas.1 to Devadas and 4 to Other Backward Classes put together. Sub-clause (b) lays down the rotation by which posts reserved for O B.C. have to be distributed among the various groupings in forty turns. OB C. coming within the eighth category of Rule 17(1) evidently consists of very small but numerous communities from which it may not always be possible to get suitable candidates. The panel contains the names of some of the Backward Classes such as Ezhavas. Muslims and Viswakarmas. Therefore. this is not a case where no representation could be given to Backward Classes at all. Representation could be given to some backward classes. though not to all of them. Rule 15 contemplates even a situation where do representation could be given to any backward class; in such a contingency appointment has to be given to open merit candidate. Thus. as we have'indicated earlier. ignoring or cancelling or abandoning of a ranked list or recommendation is something foreign to the scheme of reservation and contrary to Rule 15. The reason given. namely non-representation of some of the backward communities in the panel is not only no reason but is a bad. extraneous and unlawful reason which should not have weighed with the Government al all. 53. The next reason urged in support of the decision of tine Government is that the Government did not screen the candidates in the panel in regard to their character. If the Government wanted to assess the character of the candidates. there was nothing to prevent them from doing so. The fact that the Government refrained from doing what they think they should have done cannot be a reason at all for ignoring or cancelling the panel or not to appoint anyone from the panel. Evidently. If the Government wanted to assess the character of the candidates. there was nothing to prevent them from doing so. The fact that the Government refrained from doing what they think they should have done cannot be a reason at all for ignoring or cancelling the panel or not to appoint anyone from the panel. Evidently. the Government were satisfied with the recommendation of the High Court and refrained from conducting further screening. 54. The Government appear to have felt that they should have screened the applicants before sending the applications to the High Court for making recommendation. In their view. it will be more appropriate to screen the applicants at the earlier stage and not after receiving the recommendations. Assuming that it is open to the Government to conduct screening in regard to character of candidates at any stage they deem fit. we fail to see any particular merit or advantage in screening the candidates before sending the applications to the High Court as against conducting the screening after receipt of recommendations. If the intention is to screen the candidates before sending the applications to the High Court and withhold the applications of those candidates. who. according to the Government. are not of good character. we are afraid. that will violate the provisions in Article 233 of the Constitution. The rationale behind this decision appears to be that the Government are competent and Government alone are competent to consider the character of candidates and the High Court has no say in it. This view is absolutely wrong. What Article 233(1) of the Constitution requires is consultation with the High Court in making appointments or promotions. Consultation must have relevance to suitability of the candidates and the question of appointments and promotions. We have already referred to the observations of the Supreme Court in Chandramohan's case (AIR 1966 S.C. 1987) to the effect that 'High Court is expected to know better than the Governor in regard to suitability or otherwise of a person belonging to judicial service or Bar." The suitability. of a candidate includes. (as we have already pointed out). professional ability. personality. genera! suitability and good character. High Court is entitled and also bound to formulate its own views on the suitabiiity including character of candidates. Therefore. of a candidate includes. (as we have already pointed out). professional ability. personality. genera! suitability and good character. High Court is entitled and also bound to formulate its own views on the suitabiiity including character of candidates. Therefore. the State Government will have no competence to withhold applications from consideration of the High Court on the ground that according to the Government those applicants are not persons of good character. That will be denial of an opportunity to the High Court to assess the suitability (including character) of those candidates. Any selection and appointment made without consulting the High Court about the suitability of all applicants who had submitted valid applications would be violative of Article 233 of the Constitution. There is also a practical aspect to be taken into consideration. There will be a large number of candidates who submit applications. The panel which the High Court ultimately recommends will include only a few candidates. It would always be easier and more practicable to screen a few candidates than a large number of candidates. We therefore hold that the second reason urged viz.. the alleged non-screening of the character of candidates. is not a good. relevant or rational reason for not making any appointments from the panel. 55. The third and the last reason urged for not making any appointments and cancelling the list is the fact that two writ petitions have been filed in the High Court. one challenging the recommendation made by the High Court and the other challenging the non-appointment of the petitioner in O.P. 905/1985. The full import and basis of this reasoning is found in the various counter affidavits filed on behalf of the State. It would be instructive to refer in detail to the reasoning. In paragraph 2 of the first counter affidavit in O.P. 905/85. it is stated: "It is not healthy to give room for such challenges as those made before this Hon'ble Court on the panel by interested parties." In paragraph 9 of the second counter affidavit filed in that original petition. it is stated: "It is pertinent to note that the selection to such a prestigious post is under challenge in a number of writ petitions filed before the Hon'ble High Court. It is very unhealthy situation in a democratic set up. it is stated: "It is pertinent to note that the selection to such a prestigious post is under challenge in a number of writ petitions filed before the Hon'ble High Court. It is very unhealthy situation in a democratic set up. It is humbly submitted that I have not come across such writ petitions in the matter of selection to District judges on earlier occasions. This tendency to approach the Court challenging either the recommendation or the selection is to be discouraged by this Hon'ble Court." At page 6 of the counter affidavit in O.P. 2737/85. it is stated: "Government are very much distressed with the fact that two original petitions happened to be filed before this Hon'ble High Court challenging the panel prepared by this Hon'ble Court for the most prestigious post like District and Sessions Judges." 56. There can be no two opinions about the fact that the post of District Judge is a prestigious post. a post which is central in the sphere of administration of justice at me grass-root level. We share the distress of the Government about unnecessary litigation about selection or appointment of District Judges. But we fail to see how'the litigation. on that score has any impact or relevancy in the matter of appointments being made to the posts. One's distress at such litigation should not lead to alergy to litigation. In a democratic constitutional set up with separation of powers and rule of law as the fulcrum of operation. litigation cannot always be avoided. In fact. we have already had in this country litigation regarding positions even at higher level It is such litigation which has led to the landmark decision of the Supreme Court in s.p. Gupta's case (AIR 1982 S.C.149). As more and more people feel that they have been dealt with unreasonably or arbitrarily. there is bound to be escalation in litigation. That cannot be a reason. much less a good reason. for not making any appointments or dropping or cancelling the panel. We are sure that no one. not even the State of Kerala. can provide a guarantee against litigation in the event of a fresh selection being made after calling for applications afresh. We do not expect any Government or Council of Ministers to take decision out of annoyance or irritation on account of litigation. To do so would be highly arbitrary. 57. Thus. not even the State of Kerala. can provide a guarantee against litigation in the event of a fresh selection being made after calling for applications afresh. We do not expect any Government or Council of Ministers to take decision out of annoyance or irritation on account of litigation. To do so would be highly arbitrary. 57. Thus. we have carefully and seriously considered all the three reasons urged on behalf of the State Government in support of the latter decision taken on 28-2-1985 not to make any appointments from the panel and to call for fresh applications from eligible candidates. The reasons urged are no reasons at all. They bear no relevance to the ultimate purpose of the decision viz.. to secure suitable candidates for appointment as District Judges. The reasons urged are totally irrelevant. extraneous and have no nexus with the ostensible purpose of the decision. Therefore. we hold that this decision is contrary to law and is vitiated. 58. We would like to point out another serious infirmity in this decision namely. total non-consultation with the High Court even in regard to the second decision. The principle of direct recruitment has a philosophy underlying it viz.. infusion of fresh and younger blood at various levels of administration. First among the five vacancies arose as early as in 1980. Two other vacancies arose somewhere in 1982. There has already been inordinate delay in filling up the vacancies and this delay certainly affects effective administration of justice with which the High Court is most concerned. Therefore. the constitutional provision for consultation with the High Court is mandatory. Consultation must be effective. meaningful and purposeful and not a mere formality or mockery. (See the observations of the Supreme Court in Chandramohan's case. AIR 1966 S.C.1987. Chandra Mouleshwar Prasad's case AIR 1970 S.C. 370 and Pandurangam Rao's case. AIR 1975 S.C.1922). In the last of these decisions. the Court has explained the entire conspectus of consultation. Independence of judiciary is one of the basic .tenets and fundamental requirement of our Constitution. Undue interference by the executive results in prolonged and unnecessary delay in making appointments with the result that the cause of justice suffers. If in the matter of appointment. the High Court is sought to be ignored. independence of judiciary will be affected. Normally. as a matter of rule. Undue interference by the executive results in prolonged and unnecessary delay in making appointments with the result that the cause of justice suffers. If in the matter of appointment. the High Court is sought to be ignored. independence of judiciary will be affected. Normally. as a matter of rule. recommendations made by the High Court should be accepted by the State Government. The Court further observed: "If in any particular case. the State Government. for good and weighty reasons find 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 in the matter. There can be no doubt that if the High Court is convinced that there are good reasons for the objections on the pait of the State Government. the High Court will undoubtedly reconsider the matter and the recommendations made by the High Court." In taking the decision not to make any appointments from the panel submitted by the High Court in the course of the consultative process. the State Government ought to have had further consultations with the High Court. Failure to undertake such consultation and taking a unilateral decision is a serious blow against independence of judiciary and a flagrant violation of the Constitutional mandate. 59. Learned Advocate General vehemently contended that petitioners who are only recommended for selection and appointment by the High Court have no legal right to maintain any action under Article 226 of the Constitution of India and cannot seek either a writ of certiorari or a writ of mandamus or any other appropriate writ. Our attention has been invited to a number of decided cases having some bearing on this question. 60. In State of Haryana v. Subash Chander Marwaha and others (AIR 1973 S.C. 2216). the Court was dealing with the claim of some persons in the select list claiming appointment as Subordinate Judges. A select list of 40 candidates who secured 45 percent or mere marks was prepared. Of them. seven were appointed. according to merit. as they had secured 55 percent marks or above. Some of the rank holders who secured less than 55 percent marks sought mandamus seeking appointment. A select list of 40 candidates who secured 45 percent or mere marks was prepared. Of them. seven were appointed. according to merit. as they had secured 55 percent marks or above. Some of the rank holders who secured less than 55 percent marks sought mandamus seeking appointment. The Supreme Court observed that while there could be no departure from the list prepared by the Service Commission and the Government is bound to make selection strictly in the order in which names are ranked in the list. mere entry of a candidate's name in the list will not give him a right to be appointed even if there are adequate number of vacancies available. That is because. Government for financial or other administrative reasons may not fill up the vacancies. Existence of vacancies will not give a legal right to a candidate for appointment. Examination or interview is for the purpose of showing that a particular candidate is eligible for selection and appointment. It is then open to the Government to decide how many appointments shall. be made. A candidate would have a legitimate grievance only if the Government while making the selection for appointment had departed from the list. There was no legal duty to make appointments. Therefore. the candidate had no legal right to enforce its performance. However. another important reason also weighed with the Supreme Court in turning down the request of the candidates. The candidates appointed already had secured 55 percent or more marks in the examination. The writ petitioners had secured less than 55 percent marks. The appointed candidates were more meritorious than them and they are not equal to each other. It is open to the Government to fix higher score of marks for sale action for appointment. 61. We have already referred to the decision in Mani Subrit Jain etc. v. State of Haryana and others (AIR 1977 S. C. 276) where also the Supreme Court observed that there must be a judicially enforceable right as a legally protected right before one suffering a legal grievance can ask for relief. 62. The broad propositions referred to above are not in dispute before us. But we do not think that these propositions are of invariable or universal application in all cases. regardless of facts and circumstances of such cases. 62. The broad propositions referred to above are not in dispute before us. But we do not think that these propositions are of invariable or universal application in all cases. regardless of facts and circumstances of such cases. Even in State of Haryana v. Subash Chandra Marwaha and others (AIR 1973 S.C. 2216) the Supreme Court had pointed out: while it is open to the Government to decide how many appointments are to be made. if the Government. while making selection for appointment. departs from the ranking given in the list. there would be a legitimate grievance for the candidates. If and when the Government proposes to make appointments of Subordinate Judges. according to the Supreme Court. the Government shall not make appointments by travelling outside the list and shall make selection for appointments strictly in the order in which the candidates are placed in the list. There is no constraint that the Government shall make appointment either because there are vacancies or because a list of candidates has been prepared. 63. The above observations of the Supreme Court deserve deep and careful study. That was a case where consultation with the High Court was not required under law as it related only to appointment of judges other than District Judges and Article 234 of the Constitution requires only rules to be framed in consultation with the Service Commission and the High Court. In that case. though there were 15 vacancies and the select list included 40 candidates. only seven among them secured more than 55 per cent marks. Therefore. Government restricted the appointments to those seven candidates. That was not a case where Government totally ignoied the list and decided not to make any appointment from the list or decided to make out of turn appointment. The panel recommended by the High Court under Article 233 cannot be equated with the select list prepared by the Service Commission. Actually. in the reported case. the select list included all the candidates who secured 45 percent marks and above. By no stretch of imagination can it be said that a candidate who secured only 45 per cent marks in the test is a suitable candidate or a candidate of merit required for appointment in judicial service. The panel recommended by the High Court would contain only names of suitable candidates. though in the order of merit. By no stretch of imagination can it be said that a candidate who secured only 45 per cent marks in the test is a suitable candidate or a candidate of merit required for appointment in judicial service. The panel recommended by the High Court would contain only names of suitable candidates. though in the order of merit. The principle that the Government is not obliged to make appointment of Subordinate judges though there exist vacancies and though there exists a select list may not be applicable to the case of a panel recommended by the High Court under Article 233 of the Constitution. Different considerations would govern the latter case. Therefore. a candidate whose name is found in the panel recommended by the High Court under Article 233 of the Constitution cannot be equated with a candidate included in a ranked list prepared by the Service Commission. 64. In Jathinder Kumar and others v. State of Punjab and others (AIR 1984 S.C.1850). it was held that persons selected by the Service Commission have no right to claim appointment. But the decision was in the context of the statists and functions of the Service Commission which are quite different from those of the High Court. We have already pointed out that a select list prepared by the Service Commission may stand on a different footing than the panel recommended by the High Court under Article 233 of the Constitution. since. normality. as a rule. the recommendation of the High Court has to be accepted. In paragraph 12 of the above decision. the Supreme Court has observed: "If. however. the vacancy is to be filled up. the Government has to make appointments strictly adhering to order of merit as recommended by the Public Service Commission Government also cannot appoint a person whose name does not appear in the list but it is open to the Government to decide how many appointments will bmade In the present case. there is no doubt. the Government have decided to fill up the five vacancies. There is no contra pleading on behalf of the Government. Government initially disturbed the order of merit cum order according to the Rules of reservation. according to their sweet will. Later. Government decided not to make appointments from the particular panel. there is no doubt. the Government have decided to fill up the five vacancies. There is no contra pleading on behalf of the Government. Government initially disturbed the order of merit cum order according to the Rules of reservation. according to their sweet will. Later. Government decided not to make appointments from the particular panel. There is difference between a decision not to fill up vacancies and a decision not to fill up vacancies from the recommended panel. The general principles referred to earlier will not apply to the latter case. The latter decision of the Government amounts to ao attempt to appoint persons whose names do not appear in the select list or panel as contemplated in the above observations of the Supreme Court. 65. In certain special situations. Courts have accepted claims of such candidates. In S. Jeevadas v. State of Kerala and others (1978(2) SLR 590) this Court accepted the claim of candidates selected by the Service Commission. In Murugan and others v. State of Kerala and others (ILR 1982(2) Ker. 74) Khalid J. (-as be then was) accepted the claim of a parson included in the select list. That was a case where select list was prepared by the Service Commission for direct recruitment to certain posts. Bypassing the select list. promotions were effected. The Special Rules prescribed ratio of 1 :1 between direct recruits and promotees. Dealing with the special situation which arose in the case. and after referring to Rule 3(2) of the General Rules which states Thai "inclusion of a candidate's name in any list shall not confer on him any claim to appointment" and after referring to various decisions including the decision of the Supreme Court in State of Haryana v. Subash Chandra Marwaha and others (AIR 1973 S.C. 2215) and Ratnamma v. Union of India and others (1967(1) SLR 482) Khalid J. observed: "Overlooking the quota rule therefore not only robs the person entitled to get a> berth in the service in the ratio prescribed but consequently also robs him of his seniority." The learned judge held that in appropriate cases. mandamus can be issued to the State when arbitrary exercise of power or discretion is attempted to overlook the quota prescribed. Of course. in the present case. there is no overt attempt to overlook the quota prescribed. mandamus can be issued to the State when arbitrary exercise of power or discretion is attempted to overlook the quota prescribed. Of course. in the present case. there is no overt attempt to overlook the quota prescribed. But that is the practical effect of postponing the selection and appointment from a panel validly recommended by the High Court. We notice that this decision was challenged in Writ Appeal 561/81 but that writ appeal was dismissed. Therefore. in the special facts and circumstances of the case. we are inclined to hold that petitioners have locus standi to challenge the arbitrary action of the Government. What reliefs. if any. are the petitioner entitled to? 66. There can be no doubt that writ of certiorari can be issued in regard to the impugned decisions to the extent they are held to be vitiated. The question is whether a writ of mandamus or any other appropriate affirmative direction can be issued? We see no reason why it cannot be issued in a case like this. We have already referred to the decisions of this Court in Jeevadas's case (1978(2) SLR 590) and Morgan's case (ILR 1982(2) Ker. 74) where affirmative directions have been issued. There is yet another decision of a Division Bench of this Court in O.P. No. 2633/1982 where the Court held that in exceptional circumstances. the Court will' issue consequential reliefs by giving positive directions in regard to a person whose promotion has been wrongfully withheld. A Full Bench of this Court in Kunju Mohammed v. State of Kerala (1984 K.L.T. 403) also found justification to issue a direction for appointing some of the parties to the case to certain posts. 67. We would also refer. with advantage. to the following weighty observations of Subba Rao C.J. in Dwarka Nath v. Income Tax Officer (AIR 1966 S.C. 81). while dealing with Article 226 of the Constitution of India: "This Article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power. the purpose for which and' the person 01 authority against whom it can be exercised. The Constitution designedly used a wide language in describing the nature of the power. the purpose for which and' the person 01 authority against whom it can be exercised. It can issue writs in the nature of prerogative whis as understood in England but the scope of those writs also is widened by the use of the expression "nature"'. for the said expression does not equate the writs that can be issued in India with those in England but only draws an analogy from them. That apart. High Courts can also issue directions. orders or writs other than prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this county. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English courts to issue prerogative writs is to introduce unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government with a vast country like India functioning under a federal structure. Such a construction defeats the purpose of* the Article itself.'.' 68. The need for affirmative action after striking down impugned actions has been stressed by the Supreme Court in State of Kerala v. Kum.T.P. Roshana (AIR 1979 S.C. 765) and Charles K. Skaria and others v. Dr. C. Mat hew and others (AIR 1980 S.C.1230). We also notice that in M.M. Gupta's case (AIR 1982 S.C.1579). the Supreme Court after striking down the invalid appointments of certain persons as District Judges directed that the vacancies be filled up in accordance with law. In these circumstances. we find no inhibition against granting affirmative directions also. for. after all the constitutional function of appointing District Judges is in performance of a public duty and there has been flagrant and wrongful refusal to exercise jurisdiction. 69. On the various points in issue. we have now decided as follows: 1. That the decision of the Government or Council of Ministers in regard to appointment of District Judges is the decision of the appointing authority (Governor) and the Governor has no independent power or discretion to exercise in the matter. 2. Clause (1) of Article 233 of the Constitution applies to appointment of District Judges by direct recruitment from the Bar also. 3. The two impugned decisions of the Government are justiciable. 4. 2. Clause (1) of Article 233 of the Constitution applies to appointment of District Judges by direct recruitment from the Bar also. 3. The two impugned decisions of the Government are justiciable. 4. First part of the first decision of the Government to keep one vacancy open is vitiated by error of law and is arbitrary and unreasonable. 5. The latter part of the first decision of the Government to appoint or recommend appointment of respondents 3 to 6 for filling up four vacancies without deciding to appoint or recommend appointment of the petitioner is. to that extent. vitiated by error of law and arbitrariness 6. The decision regarding non-appointment of the petitioner is vitiated as aforesaid and violates the constitutional and statutory rights of the petitioner. Her suitability to the appointment has not been questioned. 7. Second decision of the Government not to appoint anybody as recommended by the High Court and to invite fresh applications for recruitment is vitiated by error of law. arbitrariness and unreasonableness and is violative of Articles 14.16 and 233 of the Constitution as well as the statutory rights of the petitioner and respondents 3 to 6. 8. The suitability of petitioner and respondents 3 to 6 for appointment as District Judges has not been questioned at any stage by the Government and for the reasons mentioned already. cannot be questioned. 9. Parties have locus standi to maintain the petitions. In the light of the above findings. petitioners are entitled to the main reliefs claimed by them. The Original Petitions are disposed of as follows: (a) The impugned decisions of the State Government (Council of Ministers) to the extent indicated above are quashed. and (b) First respondent. State of Kerala is directed to appoint petitioners in the four original petitions as District Judges in the vacancies falling within the quota for direct recruitment. (c) In the circumstances. there will be no direction as to costs. Allowed.