JUDGMENT The selection and appointment of Part-time Official Receiver in Thiruvananthapuram District is under challenge in both these writ petitions filed by the same writ petitioner. 2. The appointment of Official Receiver is to be effected by the Government, based on the recommendation given by the 'Judges of the High Court', in consultation with the concerned District Judge and the power of the Government is traceable to Section 59 of the Insolvency Act 1955. Section 61 of the 'Act' deals with the powers of the Official Receiver, which involves various money transactions, pledging of property, settling creditors etc. and the post is having pivotal role which has necessarily to be occupied by a competent person with unblemished reputation. 3. On coming across the notification issued by the second respondent, the petitioner applied for the post in question. Altogether 13 applicants, including the petitioner were there. Instead of sending all the applications for consideration by the Judges of the High Court; for recommendation to the Government in consultation with the District Judge, as contemplated under the relevant Rules, the second respondent/District Judge just forwarded a panel of 5 candidates. According to the petitioner, as per the relevant Rules, appointment has to be effected by the Government from the panel of names recommended by the Judges of the High Court in consultation with the District Judge concerned. This being the position, there was no authority for the second respondent/District Judge to have prepared and forwarded a panel of 5 persons to the High Court. Contending that, the power vested with the High Court to prepare the panel cannot be delegated to the District Judge, the petitioner has filed W.P.(C) No. 12957 of 2012, seeking to direct the second respondent/District Judge, Thiruvananthapuram to forward all the applications he received, pursuant to Ext. P1 notification, with recommendation, to be placed before the 'Judges of the High Court' and for such other reliefs. All the persons, who submitted applications in response to Ext. P1 notification stand impleaded in the party array as the respondents 4 to 15 in W.P.(C) No. 12957 of 2012 and the service of notice is complete. 4. P1 notification, with recommendation, to be placed before the 'Judges of the High Court' and for such other reliefs. All the persons, who submitted applications in response to Ext. P1 notification stand impleaded in the party array as the respondents 4 to 15 in W.P.(C) No. 12957 of 2012 and the service of notice is complete. 4. The 3rd respondent has filed a counter affidavit, referring to the relevant facts and figures and that there is nothing arbitrary, illegal or irregular on the part of the second respondent in having forwarded a panel of 5 candidates, whom he considered to be the best suitable. Such a course was pursued by the second respondent, based on Ext. R3 (a) Official Memorandum dated 08.03.2012, whereby the second respondent was directed to forward a panel of 5 candidates in the order of their merit and whom the District Judge considered most suitable, having regard to the duties of the post and the Rules governing the appointment. A true copy of the relevant Government Order bearing No. D. Dis. 20528/57/HD dated 02.07.1957 stipulating the mode/procedure of selection has been produced by the third respondent as Ext. R3(b) and the modification made as per G.O. (MS) No. 1135 dated 17.05.1958 with reference to the selection has been produced as Ext. R3(c). It was accordingly, that Ext. P1 notice was issued by the second respondent inviting applications and after considering the same and also after making necessary enquiry, a list of 5 eligible persons was prepared and forwarded to the High Court. 5. The 14th respondent has filed a counter affidavit stating that he is an Advocate having 31 years of standing and was an applicant in response to Ext. P1 notification. Despite his better credentials, he has been sidelined without any reason, while preparing and forwarding the panel by the second respondent. The 14th respondent virtually supports the petitioner and contends that the course pursued by the second respondent is per se wrong and illegal, being contrary to the relevant Rules. 6. During pendency of the above proceedings, since there was no interim order of stay, selection proceedings were finalized by the Government and a person by name V.K. Raju, who was included in the Panel of 5 candidates forwarded by the second respondent to the High Court and in turn recommended by the High Court to the Government, came to be appointed. Challenging the course and proceedings, including the selection of the 4th respondent as illegal, the petitioner has filed the subsequent Writ Petition as W.P(C) 24233 of 2012, to set aside the selection of the 4th respondent and for such other reliefs. The petitioner has also specifically contended that the 4th respondent/selected candidate is an accused in Crime No. 239 of 2008 of Mangalapuram Police Station, involving commission of offences under Sections 177, 409, 465, 468, 471, 420, 477 and 34 of IPC. 7. When the writ petition came up for consideration before this Court along with W.P.(C) No. 12957 of 2012 on 19.10.2012, the learned counsel who is representing the 4th respondent along with other concerned respondents in W.P.(C) No. 12957 of 2012 submitted that, there was a conflict of interest among the concerned respondents and hence fresh notice might be issued to the 4th respondent in W.P.(C) No. 24233 of 2012. Pursuant to the notice ordered, the 4th respondent in W.P.(C) No. 24233 of 2012 has appeared through another learned lawyer of this Court and has filed a counter affidavit confirming the fact that he happens to be an accused in Crime No. 239 of 2008 of Mangalapuram Police Station in his capacity as a Director Board Member of Murukkumpuzha Service Co-operative Bank and seeks to explain the position. 8. Heard the learned counsel for the petitioner, the learned counsel for the party respondents, the learned Government Pleader appearing for the respondents 1 and 2 and also the learned standing counsel appearing for the 3rd respondent in detail. The relevant file was also made available by the learned standing counsel for the 3rd respondent, while considering the crucial question whether the selection and appointment of the 4th respondent in W.P.(C) No. 24233 of 2012 is in conformity with the relevant Rules. Reference is made to the parties and documents as given in W.P. (C) No. 24233 of 2012. 9. As mentioned hereinbefore, the appointment of Official Receiver is under the relevant provisions of the Insolvency Act 1955. Rules governing the appointment have been formulated by the Government as per Ext. Reference is made to the parties and documents as given in W.P. (C) No. 24233 of 2012. 9. As mentioned hereinbefore, the appointment of Official Receiver is under the relevant provisions of the Insolvency Act 1955. Rules governing the appointment have been formulated by the Government as per Ext. P2 G.O dated 02.07.1957; which stipulates that appointment of Part-time Official Receiver shall be made by the Government on recommendation of the 'Judges of the High Court', in consultation with the District Judge concerned and that the person so appointed shall be on probation for a period of two years and on satisfactory completion of probation, he/she shall hold office for a further term of three years at a time. The relevant provisions of the Rules annexed thereto which regulate the appointment of Part-time Official Receiver are as given below : 1. Must be an advocate of the High Court of Kerala, Ernakulam. 2. Must have had practice at the Bar for a period of not less than 3 years (as on the first of December of the year in which the appointment is to be made) of which not less than 3 year shall have been in the District in which appointment is to be made. 3. Must execute two bonds with 3 sureties for Rs. 2000/-each, one in favour of the State Government and the other in favour of the District Judge concerned. ******* The above Rules suffered a minor modification as per Ext. P3 G.O. (MS) No. 1135 dated 17.05.1958, whereby it was stipulated that the 'Judges of the High Court' had to recommend 'a panel of names' in consultation with the District Judge concerned and it was for the Government to effect appointment by selection from such panel. 10. It was brought to the notice of the 3rd respondent vide letter dated 22.10.2011 of the second respondent, that the tenure of the existing Part time Official Receiver was to come to an end, on expiry of 5 years from the date of appointment and that fresh selection had to be conducted. It was accordingly, that Ext. 10. It was brought to the notice of the 3rd respondent vide letter dated 22.10.2011 of the second respondent, that the tenure of the existing Part time Official Receiver was to come to an end, on expiry of 5 years from the date of appointment and that fresh selection had to be conducted. It was accordingly, that Ext. R3(a) Official Memorandum was issued by the 3rd respondent to the second respondent, directing to forward a panel 5 candidates in the order of merit, whom he considered the most suitable, having regard to the duties of the post and the rules governing the appointment, giving their full particulars such as age, nature of practice, experience and reasons for his choice, simultaneously ordering that the existing officer will continue to function as the Part time Official Receiver, till the successor appointed by the Government joins duty. It was on receipt of Ext. R3(a) Official Memorandum, that the second respondent issued Ext. P1 notification inviting applications from qualified hands. Pursuant to the said notification, 13 candidates submitted their applications and after considering the same, the second respondent forwarded a panel of 5 candidates whom he found to be the most suitable. This was placed for consideration before the learned Judge of the High Court who was having charge of Thiruvananthapuram district, with the notes put up by the Registry, seeking for sanction whether it could be forwarded to the Government for selection and appointment. After getting approval in this regard, the list was forwarded to the Government and the Government sought to appoint the 4th respondent to the post in question, which is under challenge. 11. With regard to the averments and allegations raised by the petitioner that the second respondent had prepared a panel and forwarded the same to the High Court merely on the basis of some enquiry with the office bearers of the Bar Association and that the Secretary of the Bar Association himself was an applicant to the post in question, it has been asserted in the counter affidavit filed by the 3rd respondent that the said averment/allegation is devoid of any merit or bonafides. Paragraphs 7 and 8 of the said counter affidavit are relevant, which are extracted below : 7. Paragraphs 7 and 8 of the said counter affidavit are relevant, which are extracted below : 7. It is submitted that the District Judge, Thiruvananthapuram has reported that he was not aware of the reputation and antecedents of all the applicants since he had taken charge as District Judge in that station only on 20.05.2011. Therefore he had to consult with the Judicial Officers and the officer bearers of the local Bar Association to form an opinion with regard to the reputation, efficiency and conduct of the applicants. However, the consultation with local Bar Association did not influence him in the selection of five Advocates presently included in the panel. The allegations made in the Writ Petition to the contrary are false and hence denied. The District Judge, Thiruvananthapuram has reported that thought he had consulted with the local Bar Association about the reputation, efficiency and conduct of the applicants, the allegation that he had consulted only with the Sercretary of Thiruvananthapuram Bar Association alone is false. 8. It is submitted that the District Judge, Thiruvananthapuram reported that the allegation of the petitioner that in the panel forwarded, there are persons involved in criminal cases is absolutely false and hence denied. The District Judge reported that he did not conduct any enquiry as to whether the persons submitted the applications were included in any criminal cases or not as no such enquiry regarding the criminal antecedents of the applicants has over done during the previous occasions also. It is also submitted that it is only on the direction of the High Court that the District Judge, Thiruvananthapuram has forwarded the list cut shorting the number of applicants to 5. From the above, it is quite evident that the second respondent has conceded that he took charge only on 20.05.2011 i.e. two months after issuance of Ext. P1 notification and that he was not aware of the antecedents of the applicants, which necessitated consultation with the Judicial Officers and office bearers of the Local Bar Association to form an opinion with regard to the reputation, efficiency and conduct of the applicants. It has been been further stated that consultation with the Bar Association did not influence him in selecting those who were em-panelled. It has been been further stated that consultation with the Bar Association did not influence him in selecting those who were em-panelled. It is also conceded that the second respondent had not conducted any enquiry with regard to the involvement of the 4th respondent in any criminal case, as there was no instance of conducting any such enquiry regarding criminal antecedents of the applicants during the previous course of selection. 12. The position that emerges, as conceded from the part of the second and third respondents is that, the process of selection for em-panellment was virtually effected by none other than the second respondent and that the five candidates em-panelled from the 13 applications received were on the basis of the information gathered by the learned District Judge based on the 'so called enquiry' conducted by him and admittedly, he was having no acquaintance with the conduct, character, credential or antecedents of the applicants. What were the characteristics which weighed in the mind of the second respondent, in formulating the panel, are not discernible from the proceedings. 13. Exts. P2 and P3 Rules stipulate that the recommendation to Government has to be made by the 'Judges of the High Court', in consultation with the District Judge. The crucial question is whether the recommendation in the instant case has been made independently by the 'Judges of the High Court', in consultation with the District Judge, before the panel was forwarded to the Government. After going through the pleadings and proceedings and also the relevant file made available before this Court, it is seen that the panel of 5 candidates forwarded by the second respondent was sought to be approved by the learned Judge having charge over the District, as per the 'note' put up by the Registry and after getting approval, it was forwarded to the Government, leading to selection and appointment of the 4th respondent. Having considered the sequence of events, this Court registers disapproval of the course followed by the second respondent and also the 3rd respondent in forwarding the recommendation, as it cannot be said to be in conformity with the relevant Rules. 14. It is true, Rule '1' says that the candidate must be an 'Advocate of the High Court of Kerala', Ernakulam; which provision if strictly interpreted, may stand detrimental to almost all the candidates who have applied for selection. 14. It is true, Rule '1' says that the candidate must be an 'Advocate of the High Court of Kerala', Ernakulam; which provision if strictly interpreted, may stand detrimental to almost all the candidates who have applied for selection. During the course of hearing, it was brought to the notice of this Court that the term 'Advocate of High Court' requires to be interpreted in a liberal manner. Reliance is sought to be placed on the decision rendered by the Supreme Court in Prof. C.P. Agarwal Vs. C.D. Parikh & Ors. ((1970) 1 SCC 182) and also the law declared by a Division Bench of this Court in Thankappan Vs. State of Kerala (2011 (4) KLT 526). The observation made by the Apex Court in 1970 (1) SCC 182 (cited supra) is relevant, which is extracted below: "An advocate of a High Court must mean an advocate whose name has been enrolled as an advocate of a High Court, no matter whether he practised in the High Court itself or in Courts subordinate to it or both. There is nothing in any of the provisions to indicate that an advocate of a High Court can only be that advocate who has been practising the High Court. The distinction, if any between the words "an advocate" in Article 233(2) and the words "an advocate of High Court" in Article 217(2) (b) has no significance in any event after the coming into force of the Advocates Act, 1961 as by virtue of S.16 of that Act there are only two classes of persons entitled to practise, namely senior advocates and other advocates." The Division Bench of this Court had occasion to consider the qualification and appointment to the post of Director General of Prosecution in the High Court of Kerala, under Section 25 A of Cr. P.C with reference to Rule 5 of the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978. The said Rule, particularly Rule 5 (1) (a) insisted to have a standing of 10 years as an 'Advocate of High Court' and should have actually practised in the High Court for at least 5 years. P.C with reference to Rule 5 of the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978. The said Rule, particularly Rule 5 (1) (a) insisted to have a standing of 10 years as an 'Advocate of High Court' and should have actually practised in the High Court for at least 5 years. Placing reliance on the verdict passed by the Apex Court cited supra, the term 'Advocate of High Court' was given a wider interpretation and the challenge raised against the appointment of the Director General of Prosecution was repelled in 2011 (4) KLT 526 (cited supra). This Court finds that the interpretation of the term as made by the Apex Court and by the Division Bench of this Court is squarely applicable to the case in hand as well and as such, the said Rule of Clause (1) of Ext. P1 Notification can never bar the way. 15. When it comes to the mode of selection, the Rule is categoric that selection and appointment has to be effected by the Government. How, is the question. The Rules says that it shall be from a panel recommended by the 'Judges of the High Court' in consultation with the District Judge concerned. This shows that there has to be independent application of mind by the 'Judges of the High Court' in recommending the panel. The Rule of course does not say how many persons should be included in the panel. Since it is only in respect of 'one' post, it cannot be said as wrong or arbitrary, if the panel is restricted to '5' candidates as in the instant case. But the pleadings and proceedings do not disclose, as to whether any consultation was made with the concerned District Judge after receipt of the particulars of the candidates before approving the same and forwarding it to the Government. Admittedly, no questions were asked with regard to the antecedents or involvement of the applicants in any criminal case or as to the instances of disciplinary action, if any, by the Bar Council or such other relevant circumstances. The explanation of the second respondent is that, no such prior course was pursued in respect of the previous selection; which does not appear to be palatable to this Court. 16. The explanation of the second respondent is that, no such prior course was pursued in respect of the previous selection; which does not appear to be palatable to this Court. 16. The defective course pursued by the second and third respondents assumes more importance and significance in view of the selection already finalized leading to appointment of the 4th respondent. All along the petitioner was having a definite case that the panel was wrongly prepared by including persons who were having criminal background. In W.P.(C) 24233 of 2012, the petitioner contends that the 4th respondent is an accused in Crime No. 239 of 2008 of the Mangalapuram Police Station. This fact is not disputed by the 4th respondent, who has filed a counter affidavit in the said case, virtually conceding the registration of a Crime and his implication as an accused. But his explanation is that, he stands arrayed as an accused only by virtue of his having been a Member of the Board of Directors of the Murukkumpuzha Service Co-operative Bank during 1998 to 2001 for having been the President of the Bank during the period 2002 to 2006. It is stated that the Bank/Society suffered huge loss due to mis-appropriation of fund by two employees during the tenure of the 4th respondent and disciplinary action was taken against the said employees. Because of the loss suffered by the Bank/Society and the failure on the part of the Departmental Arbitrator to proceed with recovery steps against the delinquent employees, the Bank was not able to refund the deposits made by the members on time. 17. Ext. P5 produced by the petitioner is the FIR registered pursuant to the complaint as mentioned above. This by itself speaks volume as to the sorry state of affairs resulted, for not causing to conduct proper enquiry before finalizing the panel of candidates to be recommended for selection and appointment. The fact that no enquiry was conducted with respect to the criminal antecedents stands conceded by the second respondent, as pointed out in the counter affidavit filed by the 3rd respondent (paragraphs 7 and 8). It may be true that the second respondent, who assumed the charge as the District Judge in May 2011, i.e. shortly after issuing Ext. The fact that no enquiry was conducted with respect to the criminal antecedents stands conceded by the second respondent, as pointed out in the counter affidavit filed by the 3rd respondent (paragraphs 7 and 8). It may be true that the second respondent, who assumed the charge as the District Judge in May 2011, i.e. shortly after issuing Ext. P2 notification, was not in a position to know these things and in turn; it could not be brought to the notice of the 3rd respondent as well. It only points out the necessity to prescribe the guide lines; as to the points to be clarified by the candidates in their application; such as the involvement in any criminal cases pending or finalized already; as to the disciplinary proceedings pending or finalized by the Bar Council, involvement in any civil disputes relating to money matters or the occasion to have faced any Revenue Recovery proceedings and such other relevant aspects. Specific guidelines have to be issued by the 3rd respondent, also specifying manner in which the enquiry has to be conducted, to ascertain the factual particulars in this regard by the second respondent before he forwards the names of the persons to be considered by the 3rd respondent for preparation of the panel. 18. Another aspect to be considered is, whether the approval of the panel by the learned Judge having charge of the District is enough. This cannot be answered in the positive, since the Rules specifically stipulate that the panel has to be recommended by the 'Judges of the High Court'. It has to be borne in mind when the Rules were formulated in 1957, assignment of charge over different Districts to individual Judges was not prevalent. The law makers consciously use the term 'the Judges of the High Court'; though it does not specifically say the 'Full Court'. It may be for the reason that, in 1957 -1958, there were only 'Eleven Judges', besides the Chief Justice. Taking note of the scope and purpose, this Court can only say that the expression used referring to the recommendation to be made by 'the Judges of the High Court'; means recommendation by all the Judges of High Court, virtually the 'Full Court' and not by the particular Judge who is having charge of the District; unless such a power has been validly delegated. Once the particulars are forwarded by the concerned District Judge along with the remarks, it has to be placed for consideration before the Full Court and it is for the Full Court to recommend the panel for being considered by the Government, upon which, the Government has to appoint a person from the panel recommended by the Judges of the High Court/Full Court. 19. With regard to the contentions raised by the petitioner that all the applications ought to have been forwarded by the second respondent and that the High Court could not have directed the second respondent to conduct selection by restricting the number of candidates to '5' virtually delegating the process of selection to District Judge, it has to be noted that the position has been explained by the 3rd respondent in the counter affidavit filed in W.P.(C) No. 12957 of 2012, also producing O.M. dated 08.03.2012 as Ext. R3(a) which required the second respondent to submit a panel of 'five' candidates in the order of merit, whom he considered most suitable, having regard to the duties of the post and the relevant rules. Ext. R3(a) O.M is not under challenge, by causing the writ petition to be amended in any manner; nor has it been challenged in the subsequent writ petition filed by the same petitioner. 20. Coming to the sustainability of the action pursued by the 3rd respondent in sending Ext. R3(a) O.M. to forward a panel of '5' candidates in the order of their merit and suitability, this Court finds it difficult to accept the proposition mooted by the petitioner, that all the applications received are to be forwarded to the High Court. There may be '100s' of applicants in a given situation, in view of the minimum qualification prescribed as borne by Exts. P2 ad P3. If there are 500 applicants in response to a notification, it is not at all necessary to have all the applications forwarded by the District Judge, to be considered by the 3rd respondent. There may be '100s' of applicants in a given situation, in view of the minimum qualification prescribed as borne by Exts. P2 ad P3. If there are 500 applicants in response to a notification, it is not at all necessary to have all the applications forwarded by the District Judge, to be considered by the 3rd respondent. The third respondent, who is the competent authority to recommend the panel, in consultation with the concerned District Judge, can very well take appropriate measures to short list the candidates on the basis of some prescribed norms like seniority, field of practice or such other norms also stipulating the particulars to be included in the 'application form'; which shall necessarily reveal the involvement in any criminal case, disciplinary proceedings, financial stability, instances of revenue recovery proceedings etc. These are some of the aspects which are very much related to the nature of duty to be performed as 'Part-time Official Receiver', appointed under Section 59 of the Insolvency Act. Once such norms are prescribed and let known to the District Judge concerned, it is open for the District Judge to invite applications, shortlist the candidates based on such credentials and to have it forwarded to the 3rd respondent with specific remarks against the names of each candidate included in the 'short list'. This in turn has to be considered by the third respondent and a panel has to be finalized in consultation with the District Judge, to be recommended to the Government, restricting the number of candidates to the requisite extent, as the vacancy may only be 'one'. 21. To sum up, this Court finds that the course and proceedings finalized by the 2nd and 3rd respondents leading to the selection and appointment of the 4th respondent in W.P.(C) 24233 of 2012 as Part-time Official Receiver in Thiruvananthapuram District is not correct or sustainable. In the said circumstances, inclusion of the 4th respondent in the panel forwarded by the second respondent, the recommendation made by the 3rd respondent and the appointment effected by the first respondent are set aside. In view of the fact that altogether only 13 candidates were there, pursuant to Ext. P1 notification, the second respondent is directed to forward all the applications and their testimonials, after conducting an enquiry about involvement of the applicants in any criminal case, disciplinary proceedings, occasion to have faced revenue recovery proceedings etc. In view of the fact that altogether only 13 candidates were there, pursuant to Ext. P1 notification, the second respondent is directed to forward all the applications and their testimonials, after conducting an enquiry about involvement of the applicants in any criminal case, disciplinary proceedings, occasion to have faced revenue recovery proceedings etc. and a detailed report shall be submitted to the 3rd respondent with specific remarks as to the credentials of each candidate. Necessary particulars can be called for from the candidates by issuing notice to them. Particulars as above shall be forwarded to the 3rd respondent within two months. On receipt of the proceedings as above, the third respondent shall prepare necessary 'note' arranging the order of priority, based on some reasonable norms and the panel shall be caused to be placed for consideration before the 'Full Court' to enlist the eligible candidates in the panel and to recommend for selection and appointment. 22. Since the selection and appointment given to the 4th respondent has been set aside, he has to vacate the office immediately, if he has assumed charge already. It is open for the second respondent to make appropriate stop-gap arrangement, if necessary. Short term extension to the former officer who was holding the office on similar terms, subject to execution of necessary bond to the requisite extent, if he stands relieved already, can also be thought about. Both the writ petitions are allowed to the said extent. No cost.