V.K. Raju v. State of Kerala and Others (W.A. Nos. 2245 of 2012 & 2248 of 2012)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN MONDAY, THE 24TH DAY OF JUNE 2013/3RD ASHADHA, 1935 ## **W.A.No.2245 of 2012** ----------------------------------------- AGAINST THE JUDGMENT IN W.P.(C).No.24233/2012-R, OF HIGH COURT OF KERALA, DATED 28-11-2012. ------------------------ **APPELLANT/** 4TH RESPONDENT IN W.P.(C):- ----------------------------------------------------------------- V.K.RAJU, ADVOCATE, AGED 52 YEARS, S/O.V.KUNHISANKARAN, CHERKAYALKKARA VEEDU, MURIKKUMPUZHA P.O., THIRUVANANANTHAPURAM. BY ADVS.SRI.V.G.ARUN SRI.T.R.HARIKUMAR ## **RESPONDENTS/** PETITIONER & RESPONDENTS 1 TO 3:- --------------------------------------------------------------------------------- ## 1. DR.JAHANGEER.A., ADVOCATE, FATHIMA MANZIL, PONDUKADAVU VALIYAVELI P.O., THIRUVANANTHAPURAM - 695 001. 2. THE STATE OF KERALA, - REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETRIAT, THIRUVANANTHAPURAM - 695 001. 3. THE HONOURABLE DISTRICT AND SESSIONS JUDGE, THIRUVANANTHAPURAM (IN THE MATTER OF APPOINTMENT OF OFFICIAL RECEIVER) DISTRICT COURT, VANCHIYOOR, THIRUVANANTHAPURAM - 695 035. 4. THE REGISTRAR GENERAL, HIGH COURT OF KERALA, ERNAKULAM - 682 031. R1 BY ADV. SRI.SUMAN CHAKRAVARTHY R2 BY SENIOR GOVERNMENT PLEADER SRI.P.I.DAVIS. R3 BY ADV.SRI.B.UNNIKRISHNA KAIMAL R4 BY ADVS. SRI.K.R.B.KAIMAL (SENIOR ADVOCATE) SRI.B.UNNIKRISHNA KAIMAL SRI.ROSHEN D. ALEXANDER. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20-03-2013, ALONG WITH W.A.No.2248/2012, THE COURT ON 24-06-2013 DELIVERED THE FOLLOWING:- Manjula Chellur, C.J. & K.Vinod Chandran, J. ---------------------------------------------------- W.A.Nos.2245 of 2012 & 2248 of 2012 ----------------------------------------------------Dated this, the 24[th] day of June, 2013 ## JUDGMENT ## K.Vinod Chandran,J. These appeals are filed by one of the respondents in the respective writ petitions, who was appointed as Part-time Official Receiver under Section 59 of the Insolvency Act, 1955. In brief, the writ petitions were filed challenging the action of the learned District Judge, the 3[rd] respondent in these appeals, in sending a panel of 5 (five) candidates to the High Court for suitable recommendation, when there were altogether 13 applicants for the post. The specific contention of the writ petitioners was that it does not lie within the scope or jurisdiction of the District Judge to weed out certain applicants and recommend a panel of 5 in the specific context of the District Judge's role being confined to mere consultation. The writ petitioners challenged the appellant's appointment as Part-time Official Receiver, for reason of the procedure followed being against the rules, discriminatory and arbitrary. W.A.Nos.2245/2012 & - 2 - 2248/2012 ## 2. The entire controversy revolves around Exhibit P2 order No.D.Dis.20528/57/HD dated 2.7.1957, which reads as under: _“Government direct that the appointment of part-time Official Receivers shall be made by the Government on the recommendation of the Judges of the High Court in consultation with District Judges concerned and the persons so appointed shall be on probation for a period of two years and on the satisfactory completion thereof, shall hold office for a further term of three years at a time._ _The rules annexed hereunto shall regulate the appointment of Part-time Official Receivers._ _xxx xxx xxx”_ We are not concerned with the Annexure, since it deals with the qualification and the essential requirements for consideration of an Advocate as Official Receiver. The dispute centres around the recommendation to the Government to be made by the “Judges of the High Court” in consultation with District Judges concerned; with respect to appointment of Part-time Official Receivers. 3. It was the contention of the petitioners before the learned Single Judge that the recommendation itself was made by the 3[rd ] respondent, District Judge, since the 3[rd] respondent selected 5 out of the 13 applicants and the High Court merely transmitted the list to the Government. The contention has to be analyzed in the light of W.A.Nos.2245/2012 & - 3 - 2248/2012 the modification made to the rule as per Exhibit P3, G.O.(M.S.) No.1135 dated 17.5.1958, wherein it is stipulated that “the Judges of the High Court” has to recommend **a panel of names** in consultation with the District Judges concerned. On the tenure of the Part-time Official Receiver coming to an end, a fresh selection had to be conducted and Exhibit R3(a) Official Memorandum was issued to the 3[rd] respondent directing, a panel of 5 candidates to be forwarded, in the order of merit, after considering the relative suitability of the applicants. Exhibit R3(a) directed the District Judge to invite applications from qualified hands and send a panel of 5 names. In fact the 4[th] respondent, the Registrar General of this Court, has affirmed on affidavit that the 3[rd] respondent, District Judge, had reported that the panel was prepared only on the basis of the information gathered by him and he does not have any acquaintance with the applicants, nor has any knowledge about their conduct, character and antecedents, especially in the context of he having assumed office just subsequent to the office of the Official Receiver falling vacant and the issuance of the notification for appointment. 4. With respect to the stipulation that the appointment has to be made from amongst advocates practising in the High Court, the learned Single Judge rightly relied on the decision reported in W.A.Nos.2245/2012 & - 4 - 2248/2012 ## _**Thankappan v. State of Kerala**_ **[2011 (4) KLT 526]** that the context would require a wider interpretation, taking in the Advocate practising in the relevant mofussil centre, since otherwise the purpose would not be served. 5. Specific allegations are made against the appellant, who has now been appointed, with respect to his involvement in criminal cases and so on and so forth. We are not called upon to consider the same, since the challenge is to the procedure adopted by the District Judge, on the directions of the Registrar General of the High Court, in recommending a panel of 5 applicants from a total of 13 applicants. The learned Single Judge noticed the total lack of guidelines with respect to the consultation with the District Judge contemplated under the Government Order or how the recommendation is to be made by the Judges of the High Court. The learned Single Judge also found that the District Judge has forwarded the panel of 5 persons only by reason of Exhibit R3(a) Office Memorandum issued by the 3[rd] respondent, as directed by the Judge in charge of the District. It was opined that since there was no challenge against the Office Memorandum and the short-listing of 5 candidates for one post, it cannot at all be said to be arbitrary. W.A.Nos.2245/2012 & - 5 - 2248/2012 6. We are of the opinion that though in numbers restriction of 5 applicants for selection to one post may not by itself be arbitrary, the preparation of a panel cannot be done by the District Judge. This is so even if the same is on the instructions of the Judge in charge of the District; which instructions were conveyed by the Office Memorandum by the Registrar General of the High Court. The procedure followed would indicate that the panel forwarded by the High Court was one **recommended by the District Judge** , which power, by Exhibits P2 and P3, is vested in the “Judges of the High Court”. The learned Single Judge rightly found that the Government Order prescribing the rules was one issued more than five decades back; when the total number of Judges was minimal. Though it does not indicate the recommendation to be of the “Full Court”, the only interpretation that can be given is that the Government intended the “Full Court” to make such recommendation. By conferring such power on the “Judges of the High Court”; it can only be interpreted as **all** the Judges, which again is the “Full Court”. We are in complete agreement with the interpretation given by the learned Single Judge and it is for the rule making authority to make any changes. 7. However, considering the difficulty of placing such matters before the Full Court, pending any modification to be made W.A.Nos.2245/2012 & - 6 - 2248/2012 by the rule making authority, we are of the opinion that looking at the language employed, which is the determinative factor in interpretation of legislative intent, this is a case in which 'causus omissus' is to be supplied in the context of clear necessity as has been laid down in _**Rishabh Agro Industries Ltd. v. P.N.B.Capital Services Ltd.,**_ **[(2005) 5 SCC 515].** In the circumstances, we hold that the concerned District Judge in a District in which appointment of Official Receiver is to be made under Section 59 of the Insolvency Act, after calling for applications, has to necessarily forward the entire list to the High Court and the Registrar General has to place it before the Full Court or a Committee of Judges constituted by the Full Court or by the Chief Justice, as delegated by the Full Court. The Full Court or the Committee so appointed shall be entitled to place restrictions or prescribe qualifications, in the circumstance of a large number of applications and make that a part of the consultative process with the District Judge of the concerned centre. The Full Court or the Committee may then prescribe qualifications or provide restrictions, in the context of a large number of applicants, to scale down the zone of consideration by making a short-list. The panel drawn by the Full Court or the Committee appointed from such short-list, ought to be the one recommended by the High Court to the Government. A W.A.Nos.2245/2012 & - 7 - 2248/2012 suitable hand from the panel so recommended; is to be appointed, by the appointing authority, the Government. We make it clear that the above procedure giving a purposive interpretation to the consultative and recommendatory process contemplated by the Government Order is to be followed till the rule making authority proposes any amendment. 8. On the above reasoning, with respect to the instant appointment we agree with the learned Single Judge that the same is not in consonance with the rules and does not follow the procedure stipulated. We confirm the judgment of the learned Single Judge and the directions issued with respect to the selection, which was assailed in the writ petitions. The Writ Appeals are dismissed with the above observation. Sd/- Manjula Chellur, Chief Justice vku/ Sd/K.Vinod Chandran, Judge. ( true copy )