Government Pleader; E.R. Vinod Vs. State [Kerala High Court, 27-07-2016]

Criminal Procedure Code, 1973 – Ss. 24 (4) & 24 (5) – Government Law officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 (Kerala) – Rule 8 – Whether an Addl. District Government Pleader/Addl. Public Prosecutor appointed for a term of three years is entitled to have renewal of the term as a matter of course – Whether it is within the prerogative of the Government to identify the counsel to represent the Government in the litigations, both Civil and Criminal – where the Government is a party – shall it be subject to the upper edge, if any, of the concerned District & Sessions Judge in identifying/selecting the person – To what extent, consultation is necessary with the District & Sessions Judge for preparing the panel of candidates by the District Collector, to be forwarded to the Government for appointment – Although renewal is ordered after consultation with the District & Sessions Judge, if it is not in full compliance with the relevant rules/provisions of the Cr.P.C., in preparing the panel, will it be a bar for the Government to have it reviewed or will the Government be bound by applying the principles of estoppel – Will the Government be justified in attempting to remove the existing Addl. Government Pleaders/Addl.Public Prosecutors (whether the term is expired or still to expire) en-bloc, as proposed in Annexure-A7 and if so, will it run contrary to the law declared by the Supreme Court on the point?


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.

O.P.(KAT)No.90 OF 2016

Dated this the 27 th July, 2016

(AGAINST THE ORDER IN OA 1324/2016 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 29-06-2016)

PETITIONER(S)/APPLICANT

E.R. VINOD, ADDITIONAL GOVERNMENT PLEADER & PUBLIC PROSECUTOR, ASSISTANT SESSIONS COURT – SUB COURT, KANNUR-670001

BY ADVS.SRI.KALEESWARAM RAJ KUM.A.ARUNA

RESPONDENTS/RESPONDENTS

1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF LAW, SECRETARIAT, THIRUVANANTHAPURAM-695001.

2. DISTRICT COLLECTOR KANNUR-670001.

3. THE DISTRICT AND SESSIONS JUDGE THALASSERY, KANNUR-679532.

4. THE SUB JUDGE SUB COURT, KANNUR-670001.

BY ADVOCATE GENERAL MR. C.P.SUDHAKARA PRASAD

JUDGMENT

P.R. Ramachandra Menon, J.

Whether an Addl. District Government Pleader/Addl. Public Prosecutor appointed for a term of three years is entitled to have renewal of the term as a matter of course, once the term is expired, without following all the procedures right from the beginning, as envisaged under

Rule 8 of the Kerala Government Law officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978

(‘KGLO Rules‘ in short), read in conformity with the mandate of Section 24(4) and 24(5) of the Cr.P.C.? Whether it is within the prerogative of the Government to identify the counsel to represent the Government in the litigations, both Civil and Criminal – where the Government is a party or shall it be subject to the upper edge, if any, of the concerned District & Sessions Judge in identifying/selecting the person?. To what extent, consultation is necessary with the District & Sessions Judge for preparing the panel of candidates by the District Collector, to be forwarded to the Government for appointment?. Although renewal is ordered after consultation with the District & Sessions Judge, if it is not in full compliance with the relevant rules/provisions of the Cr.P.C., in preparing the panel, will it be a bar for the Government to have it reviewed or will the Government be bound by applying the principles of estoppel? Will the Government be justified in attempting to remove the existing Addl. Government Pleaders/Addl.Public Prosecutors (whether the term is expired or still to expire) en-bloc, as proposed in Annexure-A7 and if so, will it run contrary to the law declared by the Supreme Court on the point? These are the main questions to be answered by this Court in this Original Petition.

2. The petitioner, a practising lawyer having more than 13 years of standing, was an aspirant to be appointed as an Addl. District Government Pleader/Addl. Public Prosecutor in the vacancy created by the Government as per Ext.P4 G.O.[G.O.(MS)No.40/2013/Law dated 01.03.2013] to cater to the requirements of the new Sub Court & Assistant Sessions Court at Kannur. Pursuant to the said G.O., the District Collector took further steps calling for a panel of qualified advocates with all the relevant particulars from the Bar Associations of Thalassery, Kannur and Payyannur. On receipt of the particulars as above, a consultation was effected with the District & Sessions Judge concerned and thereafter, a penal of ‘six’ candidates was forwarded to the Government as per Ext.P6 proceedings sent by the District Collector, Kannur. After considering the same, the Government appointed the petitioner as the Addl.District Government Pleader/Addl.Public Prosecutor in the newly established Sub Court and Assistant Sessions Court at Kannur as per Annexure-A1 G.O. Dated 11.04.2013, for a period of ‘three years’ from the date of assumption of charge or attainment of sixty years of age, whichever was earlier.

3. The petitioner assumed charge and while continuing as above, the term of the engagement was to expire on 10.04.2016. In the said circumstance, the petitioner submitted a request dated 29.01.2016 before the District Collector, pointing out that he was desirous of having the tenure extended, upon which Annexure-A3 communication was issued to the District Judge by the District Collector on 05.02.2016, seeking to furnish his remarks. Pursuant to this, the District Judge called for a report from the concerned court, i.e., Sub Court and Assistant Sessions Court, Kannur; in response to which, Annexure-A4 report was submitted on 29.02.2016, pointing out that there was nothing objectionable as to the course, conduct and competence of the petitioner. Thereafter, the remarks were furnished accordingly, by the District Judge, Thalassery vide letter dated 01.03.2016 and on receipt of the same, the District Collector, on the very same date, sent the recommendation to the Law Secretary. It was accordingly, that the Government issued Annexure-A6 G.O.(G.O. (MS)No.66/16/Law dated 08.04.2016) extending the term of the petitioner by a further period of three years w.e.f 12.04.2016. It is stated that the petitioner is continuing, based on the renewal as above.

4. While so, the petitioner came across Annexure-A7 communication dated 16.06.2016 issued by the Government/Law Secretary, addressed to all District Collectors of the State, referring to the earlier letter dated 30.05.2016 as to the proposed steps for preparation of a fresh panel of advocates to be appointed as District Government Pleaders in consultation with the District Judges concerned, duly complying with the procedure laid down in Rule 8(2) of the KGLO Rules, 1978 and requesting to expedite steps in the matter for submitting the panel. Apprehending termination of engagement of the petitioner, despite the renewal ordered by the Government as per Annexure-A6, just two months ago, he approached the Kerala Administrative Tribunal by filing the O.A., seeking to set aside Annexure-A7 and to declare that the petitioner/applicant was entitled to continue on the strength of Annexure -A6, for a further period of ‘three’ years from 12.04.2016. The claim was resisted from the part of the Government on various grounds, pointing out the merits and also that the O.A. itself was premature. After a detailed discussion, as to the facts, figures, relevant provisions of law and precedents, interference was declined and the O.A. was dismissed as per Ext.P1 order dated 29.06.2016, which made the petitioner to approach this Court by way of this Original Petition, challenging Ext.P1.

5. Heard Mr. Kaleeswaram Raj, the learned counsel appearing for the petitioner and Shri C.P.Sudhakara Prasad, the learned Advocate General appearing for the State/respondents, at length.

6. The petitioner contends that, going by the contents of Annexure A7, two steps are imminent to take place; firstly, termination of all the existing Government Pleaders ‘en-bloc’ and secondly, preparation of a new panel, absolutely for no reason, but for sustaining the political will of the Government, i.e., to appoint persons of their choice, despite any instance of insinuation or misconduct on the part of the existing District Government Pleaders/Public Prosecutors, Addl. Government Pleaders/Addl. Public Prosecutors. It is stated that the challenge is mainly on two grounds, firstly that appointment of a Public Prosecutor/Addl. Public Prosecutor has necessarily to be in conformity with the mandate of Sections 24(4) or 24(5) of the Cr.P.C., which stands satisfied in the case of the petitioner and as such his engagement is not liable to be terminated. The second contention is that, Annexure-A7 proposes to pursue further steps for preparing a new panel in terms of Rule 8(2)(c) of KGLO Rules, which cannot be sustained, as the said rules have been virtually declared as ultra vires, being contrary to the mandate of Section 24(4) and 24(5) of the Cr.P.C., by a Division Bench of this Court as per the decision reported in