Judgment :- 1. A disappointed advocate, whose name was not recommended by the High Court for appointment to the post of a District and Sessions Judge, in the Kerala State Higher Judicial Service, has filed this writ petition, challenging the very basis of the selection and more pointedly, her exclusion from the list of candidates recommended to the Government. In fact, at one stage, her disappointment was so intense that she questioned the jurisdiction of the judges who were parties to the Departmental Full Bench in, even hearing her case, on the judicial side. We overruled this preliminary objection in the decision reported in Mary Teresa Dias v. Ag. Chief Justice (1985 KLT. 435). We said thus: "In this case, the counsel for the petitioner has submitted fairly and clearly that the petitioner does not impute any personal bias to both of us or to any of the judges who participated at the judges' meeting on, 12th June, 1984. An. administrative decision of the High Court is open to challenge on the judicial side in the same High Court and there are several instances in this court itself where administrative decisions were in fact successfully challenged under Art.226 of the Constitution. (See for instance Madhavan Nair v Registrar High Court, Kerala (AIR. 1968 Kerala 17). Krishnan Nair v. State of Kerala (1974 KLT. 313) and James Thomas v. Chief Justice (1977 KLT 622 (FB)) (AIR. 1978 Kerala 165) The plea therefore that a participation of the judges on the administrative side disqualifies them from hearing the matter on the judicial side cannot therefore be accepted. It has also to be noted that the recommendation under Art.233 is not that of any judge of the High Court; but of a superior court, the collective constitutional entity, the High Court. The High Court cannot be said to be prejudiced simply because it did not recommend a person to be appointed as a District Judge. When the High Court makes the recommendation and it is challenged before the same Court, the judges of that court are bound to bear the petition "ex necessitate" a region where the principles of natural justice, in any case, have to yield. Moreover, the petitioner herself chose 'he forum and filed the writ petition is the High Court. Having done so. it is not open to her to raise any preliminary objection. Moreover, the petitioner herself chose 'he forum and filed the writ petition is the High Court. Having done so. it is not open to her to raise any preliminary objection. It has also to be remembered that this Bench was constituted by the Chief justice after some of the judges expressed to be excused on personal grounds. Moreover, the questions raised, as noticed already, are pure questions of law and if there was violation of any legal principle in making the recommendation, they are matters which can be considered in the original petition itself and if those grounds are sustained, naturally, relief will have to be moulded accordingly." 2. A special leave petition was filed before the Supreme Court and this Original Petition stood adjourned for some time to enable the petitioner to obtain appropriate orders from the Supreme Court. But after the S.L.P. came up for hearing before the Supreme Court, the counsel for the petitioner was permitted to withdraw the same. It is thereafter that this writ petition has come again for hearing on the merits and for final disposal before us. 3. By notification dated 24th September. 1983 published in the gazette dated 11th October, 1983, applications were invited in the prescribed form from qualified candidates for appointment to the cadre of District and Sessions Judge by direct recruitment from the Bar. There were in all 156 applications including that of the petitioner 154 applications were forwarded to the High Court. The procedure for selection was considered at a judges' meeting held on 15th March, 1984, when it was decided that the defects noticed in some of the applications can be allowed to be cured and that a committee consisting of the three seniormost judges excluding the Chief Justice "will prepare a panel of names for selection to the three posts of District and Sessions Judges after interviewing the candidates who have put in valid applications". It was also resolved "that all questions arising for consideration including the communal rotation following the relevant principles in the Kerala State and Subordinate Services Rules, 1958, the validity of all applications, the date, time, and place of interview will be decided by the committee". The committee so constituted consisted of Justice Narendran, Justice Balagangadharan Nair and Justice S. K. Kader. The committee so constituted consisted of Justice Narendran, Justice Balagangadharan Nair and Justice S. K. Kader. However, in view of the appointment of Justice Balagangadharan Nair and Justice Kader as Chairman and Judicial Member of the Commission constituted under the Kerala Public Men (Prevention of Corruption) Act, 1984, the committee was re-constituted with Justice Narendran as Chairman, and Justice Dr. T. Kochu Thommen and Justice M. P. Menon as members. 4. 151 applicants including the petitioner were called for interview. Three applications were defective and the defects were not cured in spite of opportunity offered and they were thus not called. The committee conducted the interview on 21st and 26th of May, 1984. The petitioner was also interviewed. The majority members of the committee held that the petitioner was ineligible for selection "in view of the criterion laid down in R.3 (2) (c) and in Para.1 (iii) (c) of the Notification". R.3 (2)(c) reads thus: "3. Qualification (1) x x x (2) A candidate for appointment to category (2) from the Bar shall satisfy the following general conditions namely: (c) He shall be of a good character; x" The report of the committee including both the majority and minority opinions, was placed before a judges' meeting held on 4th June, 1984, and it was resolved by majority to accept the opinion contained in the report of the majority of the committee and to take further action in accordance therewith. The High Court, therefore, in accordance with this decision sent a panel of names of candidates "considered suitable by the High Court for appointment as District Judges direct from the Bar" along with a covering letter. The petitioner's name was not included in this list. Aggrieved, she has filed this writ petition. 5. On these facts, borne out by records, normally, the challenge, if any, is difficult to be sustained under Art.226. But, strives counsel, to raise several questions of law, which, if accepted, may as well affect the whole selection He, however, confines his plea to invalidate the selection so far as the petitioner is concerned, so that this court, if need be, can direct the recommendation of her name also to the Government for appointment. We shall consider the points raised and pressed at the time of hearing 6. We shall consider the points raised and pressed at the time of hearing 6. Before doing so, however, let us be clear that the question whether the petitioner possessed good character or not does not arise for a judicial determination in this case. The counsel took the same stand at the earlier stage also, when we said, "In fact, he even went to the extent and correctly too, of stating that the question as to whether the petitioner possessed good character or not did not arise for determination in this judicial proceeding". (1985 KLT. 435 at 437). He maintained the same stand at the final hearing also. 7. We shall now proceed to the questions of law, affecting both jurisdiction and procedure in the process of recommendation by the High Court. The first question raised is whether the departmental Full Bench consisting of all the judges of the High Court, deliberating on the administrative side, can "reassess the merit of a candidate" when once a committee of judges was constituted for the purpose, and the committee, after interviewing the candidates had assessed the "merit" of each candidate. Developing this argument, the counsel for the petitioner submitted that the power of recommendation enjoined under the Constitution has been delegated by the High Court to the committee of three judges and therefore, the decision of that committee alone constitutes the recommendation envisaged under Art.233 of the Constitution. We are afraid that this contention is advanced on a confused understanding of the facts and the legal position. Did the High Court divest itself of its powers of recommendation in favour of a committee of three Judges? Can the High Court divest itself of its constitutional power of recommendation at all? Was there any reassessment of merit' by the departmental Full Bench? Has the High Court gone behind the Committee's report? We believe that the answers to all these questions, on the facts disclosed as stated already, can only be against the petitioner. 8. Art.233 of the Constitution insists that a member of the Bar can be appointed as a District Judge only if he "is recommended by the High Court for appointment". The High Court alone is the constitutional repository of the power of recommendation for appointment to the post of District Judge. Delegation of this essential constitutional function by the High Court is not permissible. 9. The High Court alone is the constitutional repository of the power of recommendation for appointment to the post of District Judge. Delegation of this essential constitutional function by the High Court is not permissible. 9. In A. Pandurangam Rao v. State of A. P. (AIR. 1975 SC. 1922) the Supreme Court observed thus: "A candidate for direct recruitment from the Bar does not become eligible for appointment without the recommendation of the High Court. He becomes eligible only on such recommendation under clause (2) of Art.233. The! High Court in the judgment under appeal felt some difficulty in appreciating the meaning of the word "recommended". But the literal meaning given in the Concise Oxford Dictionary is quite simple and apposite. It means "suggest as fit for employment". In case of appointment from the Bar it is not open to the Government to choose a candidate for appointment until and unless his name is recommended by the High Court". 10. The validity of promotion to the cadre of District and Sessions Judges came up for consideration in Hari Datt v. State of H P. (AIR. 1980 SC. 1426). While upholding the selection, the Supreme Court observed "presumably the full court made the recommendation" implying that the recommendation of the High Court contemplated under Art.233 is the recommendation of the full court on the administrative side 11. In the present case, it is clear that the High Court did not abdicate its power of recommendation in favour of a committee of three Judges. The committee was constituted to prepare a list of names suitable to be appointed as District Judges, after interviewing the candidates and considering all relevant particulars. Three seniormost judges of the High Court constituted this committee. Their opinions expressed in writing, were entitled to considerable weight. These opinions were placed before the Full Court on the administrative side. There was a joint deliberation and when the majority of the judges decided to accept the majority decision of the committee of judges, it became the decision of the High Court. The decision was not to recommend the petitioner. It will thus be seen that the High Court reserved its power of making the recommendation even when the committee was constituted. The committee was not given authority to make the final decision or make the recommendation on behalf of the High Court. The decision was not to recommend the petitioner. It will thus be seen that the High Court reserved its power of making the recommendation even when the committee was constituted. The committee was not given authority to make the final decision or make the recommendation on behalf of the High Court. Instead of the cumbersome procedure of all the judges of the High Court sitting and interviewing all the candidates or verifying the applications to decide whether the applications were defective or not and assessing the suitability to be appointed, a convenient method of the preliminary process of selection being conducted by three seniormost judges of this Court was adopted. In fact this practice has been adopted from 1968 when selection was conducted for the same post. Borrowing with slight modification a passage from the speech of the Lord Chancellor in Local Govt. Board v. Arlidge (1915 AC. 120), it can be safely said, to "try to extend this duty beyond this and to insist" that all the judges should do everything personally would be -to impair the efficiency" of the constitutional body, the High Court itself. 12. In one of the earliest cases, Lord Coleridge, C. J. in Huth v. Clarke (1890) XXV Q.B.D. 391) observed thus: "But delegation does not imply a denudation of power and authority; the 6th schedule of the Act provides that the delegation may be revoked or altered and the powers resumed by the executive committee. The word "delegation" implies that powers are committed to another person or body which are as a rule always subject to resumption by the power delegating, and many examples of this might be given. Unless, therefore, it is controlled by statute, the delegating power can at any time resume its authority. " 13. There is in this case no question of reassessing the merit of the petitioner by the High Court. The committee, not only awarded marks for the petitioner based on the interview but also opined by a majority that she was not eligible for selection. When this majority decision of the committee was accepted by the High Court, it became the decision of the High Court. It was not a case of the High Court overriding the decision of the committee, even if it had power to do so. It was a case of accepting the committee's decision. Thus the first question raised has no merit. It was not a case of the High Court overriding the decision of the committee, even if it had power to do so. It was a case of accepting the committee's decision. Thus the first question raised has no merit. 14. The second ground of attack was levelled against the committee itself, a challenge on its very constitution and a charge of violating the principles of natural justice in assessing the merit and suitability. The counsel submitted that the majority judges of the committee imported their personal knowledge in taking a particular stand about the character of the petitioner, that they had no materials to ford) any such opinion, that they acted on surmises and conjectures, that, thus irrelevant and extraneous matters have been taken into consideration and that, in any case, the petitioner was not heard or given any opportunity before she was condemned as a person who did not have a good character. The counsel also stated that if the two judges who formed the majority in the committee knew beforehand that the character of the petitioner was bad, they participated in the deliberations of the committee with a biased mind and thus became disentitled to be members of the committee. It is contended that this is a case where the petitioner is branded as a person not having good character and it is thus a punishment meted out offending all canons of natural justice and it amounts to "blacklisting her" for any future public employment. 15. To consider the various aspects involved in the question so posed, if is necessary to understand the content of the power of recommendation vested in the High Court under Art 233 of the Constitution as interpreted by the Supreme Court. 16. In Chandra Mohan v. State of U. P. (AIR. 1966 SC. 1987), it was held thus: "The exercise of the power of appointment by the Governor is conditioned by his consultation with the High Court, that is to say he can only appoint a person to the post of district judge in consultation with the High Court. The object of consultation is apparent. The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the "judicial service" or to the Bar, to be appointed as a district Judge. The object of consultation is apparent. The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the "judicial service" or to the Bar, to be appointed as a district Judge. Therefore, a duty is enjoined on the Governor to make the appointment in consultation with a body which is the appropriate authority to give advice to him." 17. In Chandramouleshwar v. Patna High Court (AIR. 1970 SC. 370), it was held: "The underlying idea of the Article is that the Governor should make up his mind after there has been a deliberation with the High Court. The High Court is the body which is intimately familiar with the efficiency and quality of officers who are fit to be promoted as District Judges. The High Court alone knows their merits as also demerits". 18. In M. M. Gupta v. State of J and K ((1982) 3 SCC 412) : (AIR. 1982 SC. 1579), it was again observed: "The High Court by virtue of its control over the officers must be considered to be the best judge of the ability and suitability of any officer as the High Court has in its possession all relevant materials regarding the performance of the officer. The High Court of the State is primarily entrusted with the judicial administration in the State; and for efficient and due discharge of its responsibility, the High Court needs to have proper officers in proper places. The High Court must be recognised to be the best judge of the requirements for proper and efficient administration of justice and it should generally be left to the High Court to decide as to which of the officers will best serve the requirements in furtherance of the cause of justice. High Court's main concern is efficient judicial administration in the State for properly serving the cause of justice. While making any recommendation, no other extraneous matter weighs with the High Court". The observations of the learned judges of the Supreme Court in the judges' transfer case, S. P. Gupta and others v. President of India and others (AIR 1982 SC. 149) are also very relevant. While making any recommendation, no other extraneous matter weighs with the High Court". The observations of the learned judges of the Supreme Court in the judges' transfer case, S. P. Gupta and others v. President of India and others (AIR 1982 SC. 149) are also very relevant. Bhagwati, J, as His Lordship then was, observed thus: "The appointment of a judge of a High Court or the Supreme Court does not depend merely upon the professional or functional suitability of the person concerned in terms of experience or knowledge of law though this requirement is certainly important and vital and ignoring it might result in impairment of the efficiency of administration of justice, but also on several other considerations such as honesty, integrity and general pattern of behaviour which would ensure dispassionate and objective adjudication with an open mind, free and fearless approach to matters in issue, social acceptability of the person concerned to the high judicial office in terms of current norms and ethos of the society, commitment to democracy and the rule of law, faith in the constitutional objectives indicating his approach towards the Preamble and the Directive Principles of State Policy, sympathy or absence thereof with the constitutional goals and the needs of an activist judicial system: These various considerations, apart from professional and functional suitability, have to be taken into account while appointing a judge of a High Court or the Supreme Court and it is presumably on this account that the power of appointment is entrusted to the Executive. But, as pointed out above, there is a fetter placed upon the power of appointment by the requirement of consultation with the Chief Justice of the High Court, the Governor of the State and the Chief Justice of India in case of appointment to a High Court Judge and with the Chief Justice of India in case of appointment of a Supreme Court Judge". "It may also be noticed that it is not difficult to find reasons to justify what our bias or predilection or inclination impels us to do. It is for this reason that we think it is unwise to entrust power in any significant or sensitive area to a single individual, howsoever high or important may be the office which he is occupying. It is for this reason that we think it is unwise to entrust power in any significant or sensitive area to a single individual, howsoever high or important may be the office which he is occupying. There must be checks and controls in the exercise of every power, particularly when it is a power to make important and crucial appointments and it must be exercisable by plurality of hands rather than be vested in a single individual". "If the collegium is composed of persons who are expected to have knowledge of the persons who may be fit for appointment on the Bench and of qualities required for appointment and this last requirement is absolutely essential it would go a long way towards securing the right kind of judges who would be truly independent in the sense we have indicated above and who would invest the judicial process with significance and meaning for the deprived and exploited sections of humanity." "It is possible that the Chief Justice of the High Court may go wrong in a given case and arrive at an erroneous opinion in regard to the suitability of an additional judge for appointment for a further term and that may result in injustice to the additional judge who may suffer by reason of such erroneous opinion but that cannot be helped because ultimately some constitutional functionary has got to be entrusted with the task of assessing the suitability of the person to be appointed an additional judge or a permanent judge and no better person can be found for this purpose than the Chief Justice of the High Court. The Chief Justice of the High Court may err in his assessment as anyone else may, fallibility being the attribute of every human being. The Chief Justice of the High Court may err in his assessment as anyone else may, fallibility being the attribute of every human being. But that is a risk which has necessarily to be taken and it cannot be avoided howsoever perfect may be the mechanism which human ingenuity can evolve." "These errors are inevitable in every process of assessment and the Constitution has sought to minimise them by entrusting the task of assessment to a high dignitary like the Chief Justice of the High Court who would be expected to act with a high sense of responsibility and, who by reason of training and experience, would be able to sift the grain from the chaff and arrive at a correct opinion on the material before him." Desai, J. observed thus: "As the High Court has both administrative and judicial control over the subordinate judiciary, the Chief Justice of the High Court is more knowledgeable about the capacity, ability and eligibility of a District Judge for being considered for the post of High Court Judge. Chief Justice of India will have very little information about the capacity, eligibility and quality of a Dist. Judge. Similarly, while recommending a person from the Bar in the State, Chief Justice of the High Court is more advantageously placed compared to Chief Justice of India." Pathak, J. observed thus: "The Chief Justice of the High Court is the head of the institution to which the judge will be appointed. He is. therefore, particularly qualified to know the needs of the court in the context of its present constitution and the work which is pending. Generally, an appointment is made either from the High Court Bar or from the District Judiciary. In both cases, the Chief Justice can be expected to possess an intimate knowledge of the legal ability of the person under consideration and to have a sufficiently accurate estimate of his character, antecedents and reputation, including bis integrity, in the context of the legal profession or the judicial service, as the case may be, as well as his potential capacity as a Judge. It is also conveniently possible for him to obtain a fair measure of information in respect of a member of a District Bar, should such a member be under consideration." Venkataramiah, J held thus: "The Chief Justice of the High Court is the most competent person to evaluate the merit and efficiency of a person recommended for the judgeship. The Governor is the proper authority who through the executive agency available to him may be able to report about the local position, of the person proposed, his character and integrity, his affiliations and the like, which have a considerable bearing on the working of the person proposed for appointment as a judge". 19. The High Court is thus vested with the power of recommendation under Art.233 of the Constitution, not only as a check on an arbitrary exercise of power by the executive in the matter of appointment but also to ensure that a body intimately conversant with the efficient functioning of the judiciary and specially competent to assess the suitability of those persons gives its expert views to the appointing authority. When this power of recommendation is thus vested not in one but in several individuals, in a collective constitutional entity, the High Court, the joint deliberations and the conclusion so arrived at reduce the margin of error of judgment to the very minimum. It is the entrustment of this power to the High Court that constitutes the essence of the fairness in the recommendatory process in the matter of appointment to the post of District Judges. When the judges recommend under Art.233, they naturally import their own knowledge and experience in making the assessment and for adjudging the suitability, of the candidate; they may be guided by the "reputation" of a candidate, whether he or she has a "good reputation" or a "bad reputation" "A man's character is the reality of himself. His reputation is the opinion that others have found of him". (Henry Ward Beecher.) However, the image which an individual projects, about his or her equipment and character and the impression so gamed in the minds of all the judges leading to the selection or exclusion cannot be discarded as irrelevant or extraneous. To say that all knowledge gained before one becomes a judge has to be eschewed, is to insist on the impracticable and the impossible. To say that all knowledge gained before one becomes a judge has to be eschewed, is to insist on the impracticable and the impossible. One man's fancy need not be another man's poison and it is for that reason also that it is not the opinion of one but the opinion of all that enters into the verdict for making the recommendation. 20. The contention in this case that the judges have imported their knowledge before they became a judge and therefore the entire selection is vitiated proceeds on the basic misunderstanding of the constitutional intent and object in entrusting the duty of recommendation on the High Court before appointment can be made. 21. It is said that the petitioner has been condemned without a fair hearing and the counsel painstakingly cited several decisions to impress that in such cases the principles of natural justice have to be followed. Decisions with reference to disciplinary proceedings, compulsory retirement, and blacklisting in which the principles of natural justice have been highlighted, have not much relevance in the present context where an administrative decision regarding selection of candidate is concerned. When an applicant for the post is not selected, it is no punishment; it does not cast any stigma and it does not involve the principle of audi alteram partem, as contended by the counsel for the petitioner. The petitioner's right is only to have her claim considered. In this case, her claims were initially considered by a committee of three judges and finally by the full court on the administrative side. Therefore no right of the petitioner is affected and no fundamental right is infringed. 22. The counsel had a contention that even the committee of judges was legally biased in that the majority had pre-conceived views about the character of the petitioner. Though this contention was not expressly raised in the writ petition, it is contended that this follows from the pleadings themselves. If this contention is accepted, naturally most of the judges of this court cannot participate in the selection process and it may not be possible for the High Court to discharge its constitutional duty at all. We have already held that the knowledge and experience of the judges constituting the committee or the High Court cannot be overlooked when the suitability of an applicant to be appointed as a District Judge arises for consideration. We have already held that the knowledge and experience of the judges constituting the committee or the High Court cannot be overlooked when the suitability of an applicant to be appointed as a District Judge arises for consideration. In fact, the petitioner cannot advance any legal bias at all in view of the specific averments made about two out of the three judges who constituted the committee (Dr. Justice Kochu Thommen and Justice M.P. Menon). She has stated thus: "The petitioner however submits that she has absolutely no grievance as regards respondents 3 and 4 the two members of the Selection Committee in their conduct as such. In fact, the petitioner believes that at all times they have maintained high standards of integrity, independence and impartiality..." Regarding the Chairman of the committee, Justice Narendran, there are no complaints at all in the petition. Bias, legal or factual, does not thus exist. 23. Under the rules a person of good character alone is eligible for appointment. Contends counsel, that the High Court has no machinery to assess the character of an individual and therefore this is a matter which can be considered by the Government either before the applications are forwarded to the High Court or after the recommendation is received by the Government. It is as much the duty of the High Court as it is of the Government to consider whether a person has good character or not, for. "man of character will make himself worthy of any position he is given." (Gandhiji). If the High Court does not recommend a candidate on the ground that he or she has no character, and thus was unsuitable to the post, the Constitution, under Art.233 forbids that appointment. In the decision in Lakshmikutty v. State of Kerala (1985 KLT. 490) we said thus: "The suitability of a candidate includes professional ability, personality, general suitability and goad character. High Court is entitled and also bound to formulate its own views on the suitability 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". In the result, this Original Petition fails and is dismissed. No costs. Dismissed.