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George v. State Of Kerala .
Factual and Procedural Background
The petitioner, Shri K. George, an Advocate practicing at Kottayam, was a candidate for direct selection as a Munsiff in Kerala. The Kerala Public Service Commission (PSC) considered him suitable, allotted him rank No. 13 and recommended his appointment. Ext. P.1, a memorandum dated 30-10-1961 issued by the PSC, informed him of selection subject to satisfactory proof of health and further checking by Government.
Despite the PSC recommendation, the State did not appoint the petitioner, whereas candidates ranked lower than him by the PSC were appointed and posted as Munsiffs. The recruitment notification (dated 22-2-1961; published in the Kerala Gazette dated 28-2-1961) required candidates to satisfy conditions including that they "should be of such character and antecedents as to qualify them for appointment."
The State's affidavit (paragraph 6) explained the non-appointment: verification of the petitioner's character and antecedents showed he was not suitable for appointment. The State also relied on Rule 2(a)(1) of the Kerala Judicial Service (Recruitment of Munsiffs) Rules and Rule 10(b)(ii) of the Kerala State and Subordinate Services Rules, 1958, which condition appointment on satisfactory character and antecedents.
The petitioner did not challenge the power to verify character and antecedents; rather he contended that only relevant tests should be applied in such verification and that irrelevant tests would violate Article 16(1) of the Constitution. He emphasized his continuing membership of an honoured profession and that neither the District Judge (through whom his application was forwarded under Rule 4(c)) nor the Bar Council had given occasion to doubt his character or antecedents.
The Kottayam Bar Association passed a resolution (Ext. P.2) requesting the Government to include him in the list of appointees and a deputation presented a representation (Ext. P.3) asserting his good character and requesting investigation of any adverse confidential report. The Government offered the petitioner's file to the court on confidential terms; the petitioner agreed to the court's confidential inspection of the file.
Legal Issues Presented
- Whether the equality of opportunity guaranteed by Article 16(1) of the Constitution was violated by the State's refusal to appoint the petitioner despite the Public Service Commission's recommendation.
- Whether the State's conclusion that the petitioner's character and antecedents were not suitable for appointment was based on considerations that were irrelevant or arbitrary (i.e., whether irrelevant tests were applied in evaluation).
- Whether the ideological belief of a candidate (specifically whether a candidate is a communist) can be a relevant consideration for excluding him from an appointment where loyalty to the State is important.
Arguments of the Parties
Petitioner's Arguments
- He did not oppose verification of character and antecedents; rather, he submitted that only tests relevant to the duties of the post should be applied.
- Application of irrelevant tests would violate the equality of opportunity guaranteed by Article 16(1) of the Constitution.
- Had only relevant tests been applied, his character and antecedents would have been found satisfactory for appointment as a Munsiff.
- He is a continuing member of an honoured profession (the Bar) and there had been no occasion for the judiciary or Bar Council to doubt his character or antecedents.
- The District Judge (who forwarded his application as required by Rule 4(c)) did not make any adverse remark about him.
- The Kottayam Bar Association formally supported his inclusion and a deputation asserted his exceptionally good character and requested investigation of any alleged confidential adverse report.
State's Arguments
- The State's affidavit stated that on verification of character and antecedents the petitioner was found not suitable for appointment.
- The State relied on statutory rules (Rule 2(a)(1) of the Kerala Judicial Service (Recruitment of Munsiffs) Rules and Rule 10(b)(ii) of the Kerala State and Subordinate Services Rules, 1958) which make satisfactory character and antecedents a pre-condition for appointment.
- The Government Pleader offered to produce the confidential file relating to the petitioner for the court's inspection on the basis that it be treated as confidential and not shown to the petitioner or his counsel; the petitioner agreed to that procedure.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Banarsidas & Others v. State of Uttar Pradesh & Others, A.I.R. 1956 Supreme Court 520 | Article 16 is an application of the general rule of equality in Article 14 with special reference to appointments; Government entitled to pick and choose among candidates. | Used to establish that while equality applies, the State has discretion in selection and may choose among many candidates. |
| Krishnan Chander Nayar v. The Chairman, Central Tractor Organisation, A.I.R. 1962 Supreme Court 602 | The right under the Constitution includes being considered on merits for a post, though it does not guarantee appointment. | Applied to confirm the petitioner's right to consideration on merits but not to demand appointment as of right. |
| Sukhnandan Thakur v. State of Bihar, A.I.R. 1957 Patna 617 (Ramaswami J.) | Equality of opportunity is not mathematical; selective tests must be reasonable, not arbitrary; there must be a proximate connection between the test and the duties of the office; administrative authority has wide discretion. | Relied upon to frame the court's standard: tests must be reasonable and related to duties; but administrative discretion is wide and not lightly interfered with by courts. |
| Short v. Poole Corporation (1926) Ch. 66 | No public body has authority to act in bad faith or from corrupt motives; actions founded on alien and irrelevant grounds can be declared inoperative (example: dismissal for red hair). | Employed as an illustration that actions based on irrelevant considerations are invalid; court used it to clarify limits of permissible grounds for administrative decisions. |
| Pandurangarao etc. v. The Andhra Pradesh Public Service Commission, A.I.R. 1963 Supreme Court 268 | If a rule prescribes irrelevant tests (e.g., height or colour) for appointment to a judicial post, such tests are invalid though other rules may be valid. | Affirmed the principle that irrelevant requirements are invalid; informed the court's approach to determining whether irrelevant considerations tainted the decision here. |
Court's Reasoning and Analysis
The court identified the sole question as whether the equality guaranteed by Article 16(1) was violated by the State's refusal to appoint the petitioner. It reviewed authorities elucidating the scope of Article 16(1) and the permissible bounds of administrative discretion in appointments:
- Authorities show that Article 16 applies the general principle of equality to appointments but that the State has a legitimate discretion to select from many candidates.
- The court emphasized that selective tests must be reasonable, not arbitrary, and must have a proximate connection to the duties of the office; irrelevant considerations would invalidate a decision.
- The court noted that it cannot substitute its own yardstick for that of the appointing authority and that the executive's discretion in such matters is necessarily broad and primary.
The court addressed a specific contested issue raised in argument—whether a candidate's communism would be an irrelevant consideration. The court declined to accept categorically that communism would always be irrelevant; instead it observed that ideological considerations fall into a region where relevance depends on factors such as the nature of the post, the demands of loyalty, the extent of dedication required, and the circumstances at the time of appointment.
To resolve the present case on the facts, the Government Pleader agreed to produce the confidential file relating to the petitioner, on condition of continued confidentiality; the petitioner agreed that the court might inspect the file under that restraint. The court inspected the file confidentially and stated that, on the facts disclosed to it in that confidential material, it was not justified in concluding that irrelevant considerations induced the refusal of appointment.
Summarizing the analytical steps: the court set out the relevant constitutional standard (Article 16(1)), surveyed applicable precedent to define what would render a selective test invalid (arbitrariness, lack of proximate connection), considered the particular issue of ideological relevance, inspected confidential material offered by the State, and concluded that the State's decision could not be impugned on the ground that it rested on irrelevant considerations.
Holding and Implications
Holding: The Original Petition was DISMISSED without costs. The dismissal was effected by refusing to interfere under Article 226 of the Constitution.
Implications:
- Direct effect on the parties: The court refused to direct the State to appoint the petitioner as a Munsiff; the petitioner's challenge to non-appointment was dismissed.
- The court expressly noted that the dismissal is a refusal to interfere and is not an expression of opinion on the petitioner's character and antecedents.
- The opinion emphasizes the limits of judicial review in appointment matters: courts will strike down actions based on irrelevant or arbitrary tests, but will not substitute their own judgment for bona fide executive assessments where relevance of the tests is not shown to be lacking. The decision did not purport to establish a new legal principle beyond application of the authorities cited.
The Judgment of the Court was delivered by
M.S Menon, C.J:— The petitioner Shri K. George, Advocate was a candidate for direct selection as a Munsiff in this State. The Kerala Public Service Commission considered him suitable, allotted him rank No. 13, and recommended his appointment.
2. Ext. P. 1 dated 30-10-1961 is the Memorandum issued to the petitioner by the Public Service Commission. It reads as follows:
“Sri K. George is informed that he has been selected for recruitment as Munsiff on Rs. 300-700 per mensom in the Judicial Department. The selection is subject to satisfactory proof of health, and whatever further checking Government may find it necessary to do.
Further instructions will be issued to him in due course by the Department referred to in the paragraph above.”
3. The petitioner, however, was not given an appointment by the State, even though candidates who were ranked lower than him by the public Service Commission have been appointed and posted as Munsiffs. The notification issued by the Public Service Commission inviting applications for recruitment is dated 22-2-1961 and was published in the Kerala Gazette dated 28-2-1961. Paragraph IV of that notification provided that the candidates should satisfy the conditions specified in that Paragraph. One of those conditions is that the candidates “should be of such character and antecedents as to qualify them for appointment”.
4. Paragraph 6 of the affidavit filed on behalf of the State gives the reason for the non-appointment of the petitioner as follows:
“The petitioner could not be appointed to the post to which he was advised by the Kerala Public Service Commission as it was found on verification of his character and antecedents that he was not suitable for appointment.”
5. The affidavit also draws attention to Rule 2(a)(1) of the Kerala Judical Service (Recruitment of Munsiffs) Rules which says that “no person shall be eligible for appointment as Munsiff unless his character and antecedents are such as to qualify him for such appointment”; and to Rule 10(b)(ii) of the Kerala State and Subordinate Services Rules, 1958, which provides that “no person shall be eligible for appointment to any service by direct recruitment unless the appointing authority is satisfied that his character and antecedents are such as to qualify him for such service.”
6. The contention of the petitioner is not that his character and antecedents should not be verified or that he should be appointed in case they are found to be not satisfactory on such verification. His contention is that only tests which are relevant should be applied in the evaluation of a person's character and antecedents; that tests which are irrelevant will violate the fundamental right guaranteed by Article 16(1) of the Constitution; and that if relevant tests alone had been applied, his character and antecedents would have been found to be quite suitable and satisfactory for his appointment as a Munsiff. He also emphasises the fact that he is a continuing member of an honoured profession; and that he has not, at any time, given any occasion to either the judiciary or the Bar Council to doubt the quality of his character and antencedents.
7. The petitioner is an Advocate practising at Kottayam and his application for recruitment was forwarded through the District Judge of Kottayam as required by Rule 4(c) of the Kerala Judicial Service (Recruitment of Munsiffs) Rules. That Rule’ also provides that in forwarding the applications the District Judge shall say whether in his opinion “there is any reason for considering a candidate prima facie unsuitable for appointment to the Judicial Service.” It is not contendent that the District Judge of Kottayam made any adverse remark about the petitioner.
8. Ext. P. 2 dated 21-3-1962 embodies the resolutions passed by the Kottayam Bar Association regarding the appointment of petitioner. It reads as follows:
“This Association while viewing with concern, the omission of Sri K. George from the list of names selected by the Government for appointment as Munsiffs, requests the Government to include him also in the list and assign him the rank recommended by the Public Service Commission.
Further it is resolved that a deputation consisting of Messrs N. Govinda Menon, Thomas Jacob and K.N Sankara Kurup (Secretary), members of the Association, present the above resolution in person to the authorities concerned.”
9. In pursuance of the second resolution the three Advocates mentioned therein waited on the Minister concerned. Ext. P. 3 dated 21-3-1962 is their representation in writing, and it is stated in paragraph 11 of the affidavit in support of the Original Petition that no representation was in terms approved by the Bar Association of Kottayam. Ext. P. 3 reads as follows:
“We presume that Sri K. George is omitted on the basis of confidential reports on his antecedents.
As a member of the Kottayam Bar, we know Sri K. George intimately and we emphatically assert that Sri K. George is a man of exceptionally good character and to our best knowledge and belief has no objectionable antecedents.
We have therefore every reason to presume that the allegations in the confidential report must necessarily be false and unmerited and we ardently feel that the possibility of an error of judgment should be investigated at the earliest opportunity giving if necessary an opportunity to the aggrieved to disprove the alleged report and vindicate himself.”
10. Article 16(1) of the Constitution provides that “there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.” The sole question for determination is whether the equality guaranteed by this provision has been violated in this case or not.
11. The content of Article 16 of the Constitution has been the subject of discussion before the Supreme Court of India. In Banarsidas & Others v. State Of Uttar Pradesh & Others (A.I.R 1956 Supreme Court 520) that Court said’:
“Article 16 of the Constitution is an instance of the application of the general rule of equality laid down in Art. 14, with special reference to the opportunity for appointment and employment under the Government. Like all other employers, Government are also entitled to pick and choose from amongst a large number of candidates offering themselves for employment under the Government.”;
12. And in Krishnan Chander Nayar v. The Chairman, Central Tractor Organistion (A.I.R 1962 Supreme Court 602):
“The fundamental right guaranteed by the Constitution is not only to make an application for a post under the Government but the further right to be considered on merits for the post for which an application has been made. Of course, the right does not extend to being actually appointed to the post for which an application may have been made.”
13. In Sukhnandan Thakur v. State of Bihar (A.I.R 1957 Patna 617) Ramaswami J., had occasion to deal with the equality granted by Article 16(1) of the Constitution. He said:
“It is manifest that equality of opportunity mentioned in Art. 16(1) is not a mathematical equality. It is equally manifest that Art. 16(1) does not preclude the administrative authority from making a selection from numerous candidates before making appointments; but the selective test employed must be reasonable and not arbitrary. The selective test must be based upon some reasonable principle. Otherwise, the principle of equity of opportunity would be infringed. In my opinion no selective test can be reasonable unless there is some proximate connection between the selective test and the sufficient performance of the duties and obligations of the particular office. I must make it clear that the administrative authority has a wide range of discretion in making the appointment.
The administrative authority may lay down qualifications for the office—qualifications not only of mental excellence but also of physical fitness, sense of discipline, moral integrity and loyalty to the State. In the case of technical appointments the administrative authorities may further require evidence of technical qualification and standards.”
14. It is clear from what is stated above that what is expected from the State in the matter of appointments is very much the same as what is expected from a public body in the United Kingdom. The powers of a public body in that behalf came up for consideration in Short v. Poole Corporation (1926 ch. 66), a case of the termination of the services of a school teacher. Warrington L.J said:
“No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be that of the body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative.
It may be also possible to prove that an act of the public body, though performed in good faith and without the taint of corruption, was so clearly founded on alien and irrelevant grounds as to be outside the authority conferred upon the body, and therefore inoperative. It is difficult to suggest any act which would be held ultra vires under this head, though performed bona fide. To look for one example germane to the present case, I suppose that if the defendants were to dismiss a teacher because she had red hair, or for some equally frivolous and foolish reason, the Court would declare the attempted dismissal to be void.”
15. To the same effect is, the observation of the Supreme Court in Pandurangarao etc. v. The Andhra Pradesh Public Service Commission, Hyderabad (A.I.R 1963 Supreme Court 268). In that case Gajendragadkar J., said:
“If, while prescribing relevant tests which must be satisfied by an applicant, the rule had stated that the applicant should satisfy the test of a particular height or colour for instance,—which factors are irrelevant for judicial service—the respondents could not be heard to say that because the other rules are valid, the irrelevant rule about the requirement of the applicant's height or colour must also be treated as valid. If the height or colour of the applicant is wholly irrelevant in making an appointment to a judicial post, it must be treated as irrelevant and invalid though it may have been placed in a code of rules and the rest of the rules may be perfectly valid.”
16. This is not a case in which we can say there has been a lack of bona fides. In order to decide the petition in favour of the petitioner, therefore, we must be able to say that the conclusion of the State that the petitioner's character and antecedents are not suitable for the appointment is based on considerations which are irrelevant and which should not have been taken into account.
17. Suppose, for example, the view of the State was that only candidates above a particular height or below a particular weight can be considered as the possessors of a satisfactory character and a test on that basis was formulated and applied, it will be easy for a court to strike down that test and upset its application. But in cases where the tests are not so patently assured or irrelevant, the position will naturally be different. The duty and the responsibility in these matters are primarily that of the State; its discretion by its very nature will have to be large and untrammelled; and a Court cannot possibly substitute its own yard-stick for that of the Government of the day.
18. All that a Court can say is something very general: that the character and antecedents of a candidate for judicial appointment must be such as to ensure that he will—in the words of the Judge's oath provided in the Constitution—duly and faithfully and to the best of his ability, knowledge and judgment perform the duties of his office without fear or favour, affection or illwill and that he will uphold the Constitution and the laws. What exactly are the elements that will evidence and ensure such a character is the privilege and the duty of the appointing authority—and not of a Court—to decide.
19. One of the questions that came up for discussion during the hearing was whether the fact that a candidate is a communist will be a relevant consideration for excluding him from any appointment. According to counsel for the petitioner such a consideration will be an irrelevant consideration and an exclusion based on such a ground will be violative of Article 16(1) of the Constitution. We are not at all certain that the submission is correct.
20. Ideas rule mankind; and here we are in the realms of ideologies and their reactions on the make-up and loyalties of a man. The yard-stick to be applied will not be mechanical but elastic; various factors the extent of the dedication, the needs and temptations of the post concerned, the circumstances obtaining at the time of the appointment, all these and more—must enter into the calculation and influence the conclusion. In such a region a Court should not and will not, as already indicated, substitute its own opinion for those of the executive with which rests the primary duty of appointment and the entire responsibility therefor.
21. A recent Conference of the Privy Councillors in England consisting of the Lord President of the Council, the Lord Chancellor, the Secretary of State for the Home Department and others had occasion to consider the impact of the communist faith on the security procedures in England. It said:
“The Communist faith overrides a man's normal loyalties to his country and induces the belief that it is justifiable to hand over secret information to the Communist Party or to the Communist foreign Power. This risk from Communists is not, however, confined to party members, either open or underground, but extends to sympathisers with Communism.”
22. Suppose a State of the Indian Union comes to the conclusion, bona fide, that the position is the same within its confines and refuses to appoint a dedicated communist to a post in which his loyalty to the State is of paramount importance, a Court in our opinion, will not be justified in altering the conclusion and directing an appointment. The question is not whether the particular philosophy to which a candidate is addicted is right or wrong, or whether the practice and propagation of that philosophy has been handed or not. The only question is whether the tenets of that philosophy will produce approaches and reactions which will help or hinder the proper discharge of the duties of a specific post or office. The learned Government Pleader submitted that he is prepared to produce the file relating to the petitioner provided it is treated as confidental and no access to it is afforded to the petitioner or his counsel. Counsel for the petitioner agreed that we may look into the file on that basis, and we have done so. As the file has to be treated as confidential we can only state our conclusion and not discuss the reasons therefor. That conclusion is that on the fact disclosed we will not be justified in saying that irrelevant considerations have induced the refusal of an appointment to the petitioner.
23. It follows that the Original Petition has to be dismissed, and we do so without costs; and with the closing observation that the dismissal of the petition spells only a refusal to interfere under Article 226 of the Constitution and not any expression of opinion on our part as to the character and antecedents of the petitioner.
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