Sandhya Rani v. State of Kerala, District Collector Ernakulam, and National Commission for the Protection of Child Rights

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY ,THE 12TH DAY OF FEBRUARY 2019 / 23RD MAGHA, 1940** ## **WP(C).No. 35796 of 2016-Y** ## **PETITIONER/S:** **SANDHYA RANI AGED 43 YEARS** **ADVOCATE, VALIYATH, KAVUNGAL HOUSE, ELAMKUNNAPUZHA P.O., ERNAKULAM DISTRICT.** **BY ADVS. SRI.P.CHANDRASEKHAR SMT.MARY RESHMA GEORGE SMT.P.M.MAZNA MANSOOR SMT.SANDHYA R.NAIR SMT.V.A.HARITHA SRI.C.R.SYAMKUMAR SRI.K.ARJUN VENUGOPAL SRI.P.A.MOHAMMED SHAH** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM, PIN:695001.** **2 DISTRICT COLLECTOR ERNAKULAM-682030.** - **3 NATIONAL COMMISSION FOR THE PROTECTION OF CHILD RIGHTS, 5TH FLOOR, CHANDERLOK BUILDING, 36 JANPATH,NEW DELHI-110 001, REPRESENTED BY ITS CHAIR PERSON.** **BY ADVS.** **SRI.C.P.SUDHAKARA PRASAD,ADV.GENERAL SRI.P.VIJAYA KUMAR,ASGI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.35796/16 ## **JUDGMENT** The petitioner, who is a Special Public Prosecutor in the Special Court constituted under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act for short) as per Ext.P1 order, has filed this writ petition challenging Ext.P3 letter by which the Government took steps for termination of service of Additional Government Pleaders and Public Prosecutors of 13 Districts except Kottayam, where the post was vacant in order to make new appointment at 14 District Court Centres. By Ext.P3 the Law Secretary addressed the District Collectors of various Districts requesting them to furnish fresh panel of Advocates to be appointed as District Government Pleaders in consultation with the District Judges concerned complying with the procedure laid down in Rule 8(2) of Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 ('KGLO Rules' for short). W.P.(C) No.35796/16 3 2. The petitioner who was practising as an Advocate was appointed as Additional Government Pleader and Additional Public Prosecutor at Ernakulam in the year 2012. While so she was appointed as Special Public Prosecutor, as per Ext.P1 order dated 3.12.2013, in the Additional District and Sessions Court, Ernakulam which is designated as Special Court for trial of cases relating to atrocities and sexual violence against women and children. Her terms and conditions of service, duties etc. were as prescribed in KGLO Rules as amended from time to time. Her appointment made under section 32 of the POCSO Act, 2012 was notified as per Ext.P5 in Kerala Gazette dated 03.12.2013. This writ petition was filed when Ext.P3 letter was issued initiating proceedings for fresh appointment of Special Prosecutors in all the Districts, challenging the proceedings to replace her. 3. According to the petitioner her appointment as per Ext.P1 was not for a particular term and therefore her services cannot be terminated without giving her any notice or opportunity of hearing. She claimed that W.P.(C) No.35796/16 4 she cannot be sent out of service except on limited grounds of lack of honesty, integrity and/or competency or if the Government is satisfied that the new appointee is more qualified than her. 4. The petitioner relied on Ext.P4 judgment in WP(C) No.21469 of 2016 and a batch of cases in which the very same Ext.P3 order was under challenge by the Special Public Prosecutors of various districts. In Ext.P4 judgment while disposing of a batch of cases relating to termination of services of District/Additional District Government Pleaders and Public Prosecutors including the Special Public Prosecutors, it was ordered that the Special Public Prosecutors appointed under the POCSO Act can be terminated from service only on valid reasons which can be justified in the backdrop of the provisions under the POCSO Act. It was held that on the basis of Ext.P3 communication the service of the Special Public Prosecutors appointed under the POCSO Act cannot be terminated. 5. The 1[st] respondent filed a counter affidavit W.P.(C) No.35796/16 5 pointing out that the petitioner's appointment was made under the provisions contained in section 32 of the POCSO Act as well as under the KGLOs Rules. As per rule 9 of those rules, the term of appointment of Government Law Officers is only for a period of three years. The 1[st] respondent stated that it has got every right to search for a meritorious and a more competent Advocate to represent the State. Under rule 11(4) of the KGLO Rules the Government has every authority to terminate the services of Special Government Pleaders and Special Public Prosecutors on expiry of their normal tenure; trust and confidence of the Government is of utmost importance and is a matter of primary concern, while making appointment to the post of a Special Public Prosecutor. 6. Learned Counsel for the petitioner relied on the judgment in _**State of UP and another vs. Johri Mal :**_ _**AIR 2004 SCC 3800**_ . It was argued that since the petitioner's appointment was entirely different from the appointment and conditions of service of the petitioners who approached this Court which lead to W.P.(C) No.35796/16 6 Ext.P4 judgment though modified by the judgment in the Writ Appeal, her service was not liable to be terminated as held in the judgment in _**Johri Mal's**_ case _**.**_ 7. The learned Advocate General pointed out that Ext.P4 judgment has been modified by a Division Bench of this Court in the judgment in W.A.No.2264/2016. Moreover, the appointment of the petitioner was under section 32 of the POCSO Act. Under Sub Section 3 thereof every person appointed as Special Public Prosecutor under section 32 shall be deemed to be a Public Prosecutor within the meaning of clause (u) of section 2 of the Code of Criminal Procedure, 1973. Under Section 2 (u) of the Criminal Procedure Code, a Public Prosecutor means any person appointed under Section 24 and includes any person acting under the directions of Public Prosecutor. Section 24 (4) provides that the District Magistrate shall in consultation with the Sessions Judge prepare a panel of Advocate who are in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors in the District. Under Subsection 5 thereof only those W.P.(C) No.35796/16 7 included in the panel thus prepared, shall be appointed. Since no separate rules have been made for appointment of the Special Public Prosecutors in POCSO Courts, Government, as per G.O.(Rt)No.2117/2017/Home dated 8.8.2017, decided to adopt the KGLO Rules, 1978, for appointment of Special Public Prosecutors. Rule 8 of the KGLO Rules provides for the appointment of Government Law Officers at District Court, Additional District Court and Sub Court Centres, according to which the appointment is to be made from a panel of names of Advocates furnished by the District Collector concerned. Subrule (2) provides that those Advocates with at least 7 years of practice shall only be included in the panel; the panel has to be prepared in consultation with the District and Sessions Judge and only those persons who, having regard to their qualification, experience, integrity, reliability, reputation, and character and antecedents, are in the opinion of the District Collector fit to be appointed shall be included; the character and antecedents shall be verified through the Superintendent of Police. It W.P.(C) No.35796/16 8 shall also contain at least one member of Scheduled Caste, Scheduled Tribe Community, in case there are qualified hands. The procedure adopted as per the Government order has already been upheld by a Division Bench of this Court in _**Aju Mathew V State of Kerala:**_ _**2018(5) KHC 770**_ , while considering a batch of cases in respect of termination of services of the Public Prosecutors under the POCSO Act. In that case the Division Bench examined whether the provisions contained in Section 24(4) and KGLO Rules were faithfully followed by Government in the appointments. 8. The learned Advocate General submitted that applications were already called for, for fresh appointment to the post to which the petitioner had also submitted application and the District Collector had already forwarded a panel of 6 names to the Government after consultation with the District and Sessions Judge and that appointment could not be effected because of the interim order passed in this case. 9. Having heard the contentions on either side, it W.P.(C) No.35796/16 9 is seen that Ext.P4 judgment relying on which petitioner filed this writ petition has already been modified by the judgment dated 26.09.2016 in W.A.No.2264 of 2016. In Ext.P4 judgment, the learned Single Judge declared that the services of the Special Public Prosecutors appointed under the POCSO Act cannot be terminated on the basis of Ext.P3 communication and State Government has to consider the aspect of the necessity of termination of services of such Special Public Prosecutors on a case to case basis and after giving due notice to them. However, the Division Bench noticed that the communication Ext.P3 to initiate proceedings for fresh appointments in all the Districts was upheld by the Division Bench of this court in _**Vinod V State of Kerala : 2016(3) KLT 920**_ . It was held that it would be open to the State Government to appoint duly qualified Advocates as Special Public Prosecutors under the POCSO Act exclusively. The petitioners therein were allowed to continue only till fresh appointments were made to the posts. 10. Petitioner's appointment, though was made W.P.(C) No.35796/16 10 under Section 32 of the POCSO Act, in Ext.P1 order of her appointment itself it was stated that the terms and conditions of service would be as prescribed in KGLO Rules. As pointed out by the learned Advocate General, under Rule 9 of KGLO Rules her appointment can only be for a period of three years. Therefore just because the tenure of her appointment is not stated in Ext.P1 order, petitioner cannot have any right to continue for a period in excess of 3 years contrary to Rule 9 of the KGLO Rules. 11. Petitioner had been continuing on the basis of the interim order passed by this Court even after expiry of her tenure of appointment as early as in December 2016. The first relief sought by the petitioner is to quash Ext.P3 order, which is already upheld by the Division Benches of this court in the judgments in _**Vinod's**_ case and in the judgment in W.A.No.2264/2016. 12. 2[nd] relief sought in this writ petition is for a direction to the respondents not to terminate her services except in accordance with law and in W.P.(C) No.35796/16 11 accordance with directions contained in Ext.P4 judgment and the law laid down by the Hon'ble Supreme Court in this regard. As already found in the previous paragraphs, Ext.P4 judgment has already been modified as per the judgment in the W.A.No.2264 of 2016. Government have made appointment in all other Districts adopting KGLO Rules. The procedure adopted by Government as per G.O.(Rt)No.2117/2017/Home dated 8.8.2017, for appointment is already upheld by this Court in _**Aju Mathew's**_ case (supra). There is no basis for the apprehension of the petitioner that appointments would not be made in tune with the dictum laid down in the judgment in _**Johri Mal's**_ case _**,**_ where the apex court held that good and competent Lawyers are required to be appointed for good administration of justice; to fulfill its duty to uphold the rule of law; its accountability to the public; and expenditure from the tax payers' money. On that ground petitioner cannot have any right to continue in the post. As petitioner's appointment was only for a period of 3 years, she does not have any right to continue in W.P.(C) No.35796/16 12 service beyond that. Therefore petitioner is not entitled to continue any more. However in order to see that there is no hindrance to the proceedings in the Court where she is functioning, she shall be allowed to continue till she is replaced by the fresh appointee. The writ petition is disposed of accordingly. **Sd/-** **P.V.ASHA** **JUDGE** rkc W.P.(C) No.35796/16 13 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1: TRUE COPY OF THE GOVERNMENT ORDER G.O. (N.S) NO.215/13/LAW DATED 3.12.2013. EXHIBIT P2: TRUE COPY OF G.O. DATED 27/9/2013 OF THE GOVERNMENT OF KERALA DESIGNATING THE ADDITIONAL DISTRICT AND SESSSIONS COURT, ERNAKULAM. EXHIBIT P3; TRUE COPY OF THE ORDER NO.11518/INSP/1/16/LAW DATED 30.5.2016. EXHIBIT P4: TRUE COPY OF THE JUDGMENT IN WPC NO.21469 OF 2016. EXHIBIT P5 A TRUE COPY OF THE GO(MS) NO.214/2013/LAW DT.3.12.13**