# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
# **`PRESENT`**
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THE HONOURABLE MR.JUSTICE N.NAGARESH
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# **`THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945 WP(C) NO. 9783 OF 2023`**
## **`PETITIONERS:`**
- **`1 E.S.PRATHYASH, AGED 29 YEARS S/O.SAKTHIDHARAN, ERANEZHUTH HOUSE, CONVENT ROAD, KANIMANGALAM DESOM & VILLAGE, THRISSUR, PIN - 680027`**
- **`2 ASWINKUMAR K.S, AGED 27 YEARS S/O.K.P.SHAJI, KALLIDUMBIL HOUSE, VALKULAMBU DESOM, KIZHAKKENCHERRY 1ST VILLAGE, KORENCHIRA P.O, ALATHUR TALUK, PALAKKAD, PIN – 678684`**
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BY ADVS.
REBIN VINCENT GRALAN
DINESH G WARRIER
VIMAL VIJAY
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## **`RESPONDENTS:`**
- **`1 KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, PIN - 695004`**
- **`2 SECRETARY, KERALA PUBLIC SERVICE COMMISSION PATTOM, THIRUVANANTHAPURAM, PIN – 695004`**
## **`SRI.P.C. SASIDHARAN (SC)`**
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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 23.03.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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## **JUDGMENT**
Dated this the 23[rd] day of March, 2023
The petitioners, who are practising Lawyers at Thrissur and Palakkad Districts in the Criminal Courts, have filed this writ petition seeking to set aside Ext.P3 to the extent it prescribes the date “1[st] January, 2022” as the cut off date for acquiring not less than three years of active practice in the Criminal Courts for selection and appointment to the post of Assistant Public Prosecutor Grade-II (Category No.659/2022) instead of the date “1[st] January, 2023”.
2. The petitioners further seek to declare that the fixation of the date 1[st] January, 2022 as the cut off date for acquiring not less than three years of active practice in the Criminal Courts for selection and appointment to the post of Assistant Public Prosecutor Grade-II is to be corrected as “1[st] January, 2023” and Ext.P3 Gazette Notification is liable to be corrected accordingly. The petitioners have further sought
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## certain incidental reliefs.
3. The petitioners state that they are Lawyers practising in Criminal Courts since 2019. They applied for appointment to the post of Assistant Public Prosecutor Grade II in response to Ext.P3 Notification. Their applications were rejected as per Exts.P4 and P5, on the ground that the petitioners did not complete three years practice on the first day of the year in which the applications were invited.
4. The petitioners state that the date of Gazette Notification was 31.12.2022. The last date for submission of application was 01.02.2023. However, by fixing the cut off date as 1[st] January, 2022 for acquiring not less than three years active practice in Criminal Courts, the petitioners are denied opportunity to participate in the selection.
5. The petitioners state that they have a legitimate expectation that they will be permitted to compete for selection to the post of Assistant Public Prosecutor as they have already completed three years of active practice in
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Criminal Courts.
6. Counsel for the petitioners pointed out that the Kerala Public Service Commission usually invites applications for appointment to the post of Assistant Public Prosecutor in the middle of the calender year. The selection process is completed in the same year and appointments will be done in the same year. In the present case, the Kerala Public Service Commission has published the Notification only on the last date of the year i.e., on 31.12.2022. Thereby, persons who have completed three years of practice as on that date are prevented from participating.
7. The counsel for the petitioner pointed out that as the Notification was made on 31.12.2022, the entire process of selection shifts to the year 2023. All steps pursuant to the Notification can be taken only in the year 2023. In such circumstances, it would only just and proper that persons who hold qualification as on 01.01.2023 are also permitted to participate in the selection.
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8. The counsel for the petitioner further pointed out that the applications are invited and the last date for submission of application is fixed as 01.02.2023. As the last date is of the year 2023, those who would have the qualification as on the 1[st] day of January, 2023 should be permitted to compete in the selection process.
9. It is further urged on behalf of the petitioners that recruitment to the cadre of Assistant Public Prosecutor comes with long breaks and the last selection process was five years ago, in the year 2017. Unless the petitioners are permitted to participate in the present selection proceedings, it is likely that in the next recruitment process, the petitioners would be declared as unfit due to age bar.
10. In the facts and circumstances of the case, the petitioners pray that the 2[nd] respondent be directed to include the name of the petitioners in the shortlist as well as in the final ranklist to be published for the post of Assistant Public Prosecutor Grade II.
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11. I have heard the learned counsel for the petitioners and the learned Standing Counsel for the respondents.
12. Ext.P3 Gazette Notification is under challenge. By Ext.P3 Gazette Notification dated 31.12.2022, the Kerala Public Service Commission invited applications online from qualified candidates for appointment to the cadre of Assistant Public Prosecutor Grade II, in the Scale of Pay of ₹56,5001,18,100/- against all anticipated vacancies. Clause 7 of Ext.P3 stipulated that the candidate must be a member of the Bar and must have not less than three years of active practice in Criminal Courts as on 1[st] January, 2022. It is the prescription of the cut off date as 1[st] January, 2022, which has adversely affected the petitioners.
13. Rule 7(ii) of the Special Rules for the post of Director of Prosecution (Administration), Deputy Director of Prosecution and Senior Assistant Public Prosecutor, Assistant Public Prosecutor (Senior Grade), Assistant Public Prosecutor Grade-I, Assistant Public Prosecutor Grade-II, 2018 which is
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governing appointment to the cadre of Assistant Public Prosecutor Grade II, it is specifically stipulated that the persons who applied for the post of Assistant Public Prosecutor Grade II shall have not less than three years of active practice in Criminal Courts on the 1[st] day of January of the year in which applications are invited. The said provision is so clear that it is not susceptible to two meanings. The Notification was published on 31.12.2022 in the year 2022. The 1[st] day of January of the year is 01.01.2022. Therefore, going by the Statutory Rules, the applicants should necessarily hold three years of active practice in Criminal Court as on 01.01.2022.
14. The contention of the counsel for the petitioners is that since the Gazette Notification is published on 31.12.2022, the entire selection process spread over through the year 2023. Even the last date for submission of application is fixed as 01.02.2023. Therefore, necessarily the qualifications need to be satisfied only as on 01.01.2023. I am afraid such an
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interpretation is not possible in view of the clarity with which Rule 7(ii) of the Special Rules has been framed.
15. The counsel for the petitioners relied on the judgments of the Apex Court in _**Ashok Kumar Sonkar v. Union of India** [(2007) 4 SCC 54]_ and _**Rakesh Kumar Sharma v. State (NCT of Delhi) and others** [(2013) 11 SCC 58]_ in order to urge that the cut off date for acquisition of qualification should be the last date of submission of application. The judgments in _**Ashok Kumar Sonkar**_ (supra) and _**Rakesh Kumar Sharma**_ (supra) were delivered in a different context. In the case of recruitment to the post of Assistant Public Prosecutor Grade II, the recruitment, selection and appointment are governed by Statutory Rules. The Service Rules clearly provide that the qualification as to active practice in Criminal Court shall be satisfied as on the 1[st] January of the year in which applications are invited.
This Court has considered the issue earlier in the judgment in W.P.(C) No.5279 of 2023. This Court found
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similar argument unsustainable. In view of the facts as stated
above, the writ petition is found without any merit. The writ petition is therefore dismissed.
**Sd/-**
**N.NAGARESH**
**JUDGE**
spk
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## **`APPENDIX OF WP(C) 9783/2023`**
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PETITIONER EXHIBITS
Exhibit P1A TRUE COPY OF THE CERTIFICATE OF
PRACTICE DATED 22.11.2019 ISSUED BY
THE BAR COUNCIL OF INDIA IN RESPECT OF
THE 1ST PETITIONER
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Exhibit P2A TRUE COPY OF THE CERTIFICATE OF
PRACTICE DATED 22.11.2019 ISSUED BY
THE BAR COUNCIL OF INDIA IN RESPECT OF
THE 2ND PETITIONER
Exhibit P3A TRUE COPY OF THE GAZETTE
NOTIFICATIONDATED31.12.2022
(CATEGORY NO.659/2022) FOR SELECTION
AND APPOINTMENT TO THE POST OF
ASSISTANT PUBLIC PROSECUTOR GRADE II
IN THE KERALA STATE PROSECUTION
SERVICE, ISSUED BY THE 2ND RESPONDENT
Exhibit P4A TRUE COPY OF THE STATEMENT
PERTAINING TO THE 1ST PETITIONER,
REJECTINGHISAPPLICATIONAS
DOWNLOADED FROM THE OFFICIAL WEBSITE
OF KERALA PUBLIC SERVICE COMMISSION
Exhibit P5A TRUE COPY OF THE STATEMENT
PERTAINING TO THE 2ND PETITIONER
REJECTINGHISAPPLICATIONAS
DOWNLOADED FROM THE OFFICIAL WEBSITE
OF KERALA PUBLIC SERVICE COMMISSION
Exhibit P6A TRUE COPY OF THE GAZETTE
NOTIFICATION DATED 30.08.2017 FOR THE
POST OF ASSISTANT PUBLIC PROSECUTOR
GRADE II ISSUED BY THE 2ND RESPONDENT
Exhibit P7A TRUE COPY OF THE ORDER DATED
30.01.2023 IN OA.(EKM) NO.182/2023 &
CONN.CASES ISSUED BY THE HON’BLE
KERALA ADMINISTRATIVE TRIBUNAL
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