Venugopalan C.M. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **TUESDAY, THE 5TH DAY OF DECEMBER 2017/14TH AGRAHAYANA, 1939** ## **WP(C).No. 35631 of 2016 (D)** **----------------------------** ## **PETITIONER :** **----------------------** **VENUGOPALAN C.M., S/O. GOVINDAN PANICKER, AGED 56, RESIDING AT PANAKKATTEDATHIL, PERUVAYAL, KOZHIKODE, KERALA-673 006.** ## **BY ADVS.SRI.R.LAKSHMI NARAYAN SMT.R.RANJINI SRI.M.ASHOK KINI** **RESPONDENT(S):** **----------------------------** ## **1. STATE OF KERALA,** **REP. BY THE SECRETARY, LAW DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DISTRICT COLLECTOR, KOZHIKODE, OFFICE OF THE DISTRICT COLLECTOR, COLLECTORATE, KOZHIKODE-673 006.** **3. THE DISTRICT AND SESSIONS JUDGE, KOZHIKODE, DISTRICT COURT COMPLEX, KOZHIKODE-673 006.** **BY SPL.GOVERNMENT PLEADER SRI.N.MANOJ KUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C).No. 35631 of 2016 (D)** **------------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS --------------------------------------EXHIBIT P1 THE PHOTOCOPY OF THE LETTER DATED 11-7-2016. EXHIBIT P2 THE PHOTOCOPY OF THE APPLICATION DATED 16-7-2016, SUBMITTED BY THE PETITIONER, ENCLOSING THE BIO-DATA AND THE CERTIFICATE ISSUED BY THE CALICUT BAR ASSOCIATION. EXHIBIT P3 THE PHOTOCOPY OF ORDER DATED 24/11/2016.** **RESPONDENT(S)' EXHIBITS ---------------------------------------EXHIBIT R2(A) TRUE COPY OF THE G.O.(MS) NO.193/16/LAW DATED 24/11/2016.** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **P.V. ASHA, J.** **= = = = = = = = = = = = = = = = = W.P.(C) No.35631 of 2016(D)** **- - - - - - - - - - - - - - - - - - - - - -** _Dated this the 5[th] day of December, 2017_ ## **J U D G M E N T** The petitioner who is an Advocate practising in the courts in Kozhikode District is challenging the appointments of the Additional District Government Pleaders/Public Prosecutors, Kozhikode made on the basis of Ext.P1 letter. 2. Petitioner claims that he is having all the qualifications for appointment as District Government Pleader /Additional Government Pleader. The District Judge, Kozhikode, as per Ext.P1 letter dated 11.07.2016 addressed the President of the Bar Association, Kozhikode, calling for a panel of Advocates along with their address, Date of Birth, date of enrollment, experience, etc. It was stated that the District Collector had requested for the same, for consideration for appointment as Additional Government Pleaders/ District Government Pleaders for conducting cases before ## **W.P. (C) No. 35631 of 2016(D)** ## **-: 2 :-** MACT for the Kerala State Insurance Department and Pleaders to do Government work in the Munsiffs Court. The President of the Bar Association was requested to publish the letter in the notice board and submit a separate panel of qualified Advocates for the said post along with required details before 19.07.2016. The upper age limit was fixed as 60 years. Petitioner has produced Ext.P2 application dated 16.07.2016, claiming that it was submitted before the 3[rd] respondent in response to Ext.P1 letter, enclosing his biodata and certificate issued by the Bar Council. Petitioner submits that he has been practising since June,2002. According to him, the 3[rd] respondent scrutinised the application received on the basis of Ext.P1 and forwarded a panel of his choice to the 2[nd] respondent. The 2[nd] respondent forwarded the panel to the law Department for orders of appointments. 3. The petitioner submits that he came to know that his name was not included in the panel prepared by **W.P. (C) No. 35631 of 2016(D)** ## **-: 3 :-** the District Judge and therefore the District Collector expressed helplessness to include his name in the panel. The writ petition was filed at this stage challenging the proceedings leading to the appointments and for a direction to the 2[nd] respondent to initiate fresh steps for selection of Additional Government Pleaders/Public Prosecutors in Kozhikode in accordance with the Government Law Officers (Appointment and conditions of Service and Conduct of Cases) Rules, 1978, (Kerala) _(hereinafter referred to as the 'Rules')_ . 4. During the pendency of the writ petition, the additional respondents 3 to 8 were appointed. Petitioner challenged their appointments amending the writ Petitions. 5. According to the petitioner, the entire procedure followed for the appointment of the Additional Government Pleaders in the District is contrary to the procedure prescribed in the rules especially Rule 8(2) of the Rules. As per Rule 8(2) of ## **W.P. (C) No. 35631 of 2016(D)** ## **-: 4 :-** the Rules, it is for the District Collector to call for a list of candidates who shall forward it to the District Judge and the District Judge has to return the list to the District Collector, who in turn shall prepare the panel of Advocates and forward it to the Government. It is pointed out that the initiation of the process by the District Judge by calling for a panel of Advocates is in violation of the prescribed procedure. 6. The 2[nd] respondent has filed a counter affidavit stating the following: The appointment of the Additional District Government Pleaders/ Additional Public Prosecutors in Kozhikode District was made strictly in accordance with the Rules. The 2[nd] respondent had issued a letter dated 30.06.2016 to the 3[rd] respondent requesting to furnish a list of Advocates for being considered for appointment as Additional Government Pleaders/District Government Pleaders for conducting cases before various Courts in Calicut ## **W.P. (C) No. 35631 of 2016(D)** ## **-: 5 :-** District. The 3[rd] respondent therefore published notice dated 17.01.2016 inviting applications. The 3[rd] respondent received applications pursuant to the said notice. The applications received by the 2[nd] respondent was also forwarded to the 3[rd] respondent. The last date fixed for submitting applications was 19.07.2016. The petitioner's application was received only on 06.09.2016 when all the procedures were completed. The 3[rd] respondent had forwarded the list of lawyers for being included in the panel to the 2[nd] respondent to be considered for appointment to the post along with his remarks. From the list forwarded by 3[rd] respondent, the 2[nd] respondent prepared a panel for consideration of Government for appointment to the post of Additional District Government Pleaders/Additional Public Prosecutors. 7. According to the 2[nd] respondent, the mandatory requirement as per Section 24 of the Code of Criminal Procedure, 1973 _(hereinafter referred to as 'the_ ## **W.P. (C) No. 35631 of 2016(D)** ## **-: 6 :-** _Cr.P.C.)_ and Rule 8 of the Rules were complied with and it was only thereafter appointments were made as per Ext.R2(a) order, after real consultation with the District and Sessions Judge. It is stated that the 2[nd] respondent has not included any person in the panel whose name was not included in the list prepared by the 3[rd] respondent or included anybody who has been specifically disapproved by the District and Sessions Judge on specified grounds. Appointments were made after verification of character and antecedents of those included in the panel. It is stated that the list and panel were prepared in compliance with the procedure prescribed as per Rules. 8. Even though notice was sent to the candidates appointed, impleaded as additional respondents 3 to 8 and notice was served on them, none of them entered appearance. 9. Heard the learned counsel for the petitioner and the learned Special Government Pleader. **W.P. (C) No. 35631 of 2016(D)** ## **-: 7 :-** 10. The learned counsel for the petitioner relied on the judgment of this Court in _**E.R Vinod v. State of Kerala**_ [2016(4)KHC 737:2016(3) KLT 920] and the judgment in _**K.C. Bineesh and others v. State of Kerala**_ [ 2016(5) KHC 343:2016(4)KLT 584: ILR 2016(4) Ker 566]. Relying on the judgment in _**Omanakuttan Nair v. State of Kerala**_ [2003(1) KLT 226], the learned Government Pleader argued that the appointments challenged in this case are made perfectly in tune with the judgments relied on by the learned Counsel for the petitioner and in tune with the judgment in _**Omanakuttan Nair's** case (supra)._ 11. I have considered the contentions advanced by both sides. Rules 8(2) of the Rules reads as follows: _“8(2) For preparing the panel, the District Collector shall follow the following procedure, namely-_ _a. A list of advocates from the roll of advocates of the Bar Council of Kerala, having at least seven years of practice in the Bar and 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 as a Government Law Officer shall be prepared and sent to the concerned District and Sessions Judge for consultation. The District and Sessions Judge_ ## **W.P. (C) No. 35631 of 2016(D)** ## **-: 8 :-** _shall return the list with his remarks within ten clear days from the date of receipt of the same by him:_ _Provided that in preparing the list it shall not be necessary to advertise the vacancies or invite applications for the appointment._ _b. After the expiry of the time limit mentioned in Clause (a), for return of the list from the District and Sessions Judge, the District Collector shall prepare the panel of advocates based on the list forwarded by him to the District and Sessions Judge under the said clause._ _c. In preparing the panel, the District Collector shall not include the name of any Advocate whose name was not included in the list prepared by him under clause (a) or whose name was specifically disapproved by the District and Sessions Judge on specific grounds._ _d. The character and antecedents of all persons included in the panel shall be got verified through the concerned Superintendent of Police._ _Provided that if the members of the Scheduled Caste or Scheduled Tribe Communities are qualified to be appointed as Law Officers, the panel shall contain the name of one member of such community.”_ 12. The learned Government Pleader pointed out that the Division Bench of this Court in _**Omanakuttan Nair's**_ _case (supra)_ while considering the question of appointment of Public Prosecutors had considered the validity of Rule 8(2) of the Rules as well as the ## **W.P. (C) No. 35631 of 2016(D)** ## **-: 9 :-** procedure prescribed under Section 24(4) of the Cr.P.C. In paragraph 13 it was held that the procedure prescribed in Rule 8(2) of the Rules is contrary to Section 24 of the Cr.P.C. as interpreted by the Hon'ble Supreme Court in _**Harpal Singh Chauhan and others v. State of U.P.**_ [AIR 1993 SC 2436]. It was held that Rule 8(2) of the Rules is an objectionable provision directly contrary to the provisions of Section 24(4) of the Cr.P.C, seeing that District and Sessions Judge is given only a limited role to play of returning the list with his remarks and even if the District and Sessions Judge is satisfied about the overall suitability with regard to the qualification, experience, integrity etc. of the candidates to be recommended for appointment as Public Prosecutor, his name will not be included in the panel of Advocates merely because the District Collector had not included it in the list sent to the District Judge. 13. However the said judgment was explained in _**Vinod's** case (supra)_ in the light of the judgment of the ## **W.P. (C) No. 35631 of 2016(D)** ## **-: 10 :-** Apex Court, in _**State of UP V Johri Mal:**_ (2004)4 SCC 714 and in _**Francis Judo Net V State of Kerala**_ : 2007(4) KLT 210. It was held that the list becomes a panel only after the consultative process with the District and Sessions Judge and after removal of those found unsuitable by the District and Sessions Judge and that safeguard is provided to ensure that only competent persons are included in the panel and are getting appointed. It was also observed that the difference between the 'list' and 'panel' was not brought to the notice of the Division Bench in _**Omanakuttan Nair's** case (supra)_ . It was held that only if there is any lapse in real and effective consultation, there will be infraction in the rules or procedure in appointment. 14. In _**Vinod's** case (supra)_ also the petitioners challenged their termination of the services claiming renewal of their term/re-appointment. In that case it was found that there was no list or panel prepared as contemplated in the rules and petitioners cannot have ## **W.P. (C) No. 35631 of 2016(D)** ## **-: 11 :-** any right to re-appointment or retention. After considering _**Omanakuttan Nair's** case (supra)_ and various judgments of this court and the Apex Court, it was held that the the issue has to be considered in the light of Rule 8 as well as subsection (4) and (5) of Section 24 of Cr PC and in the light of the apex court judgment in _**Johri Mal's** case (supra)_ . It was found that the mandatory requirement was to have a real and effective consultation with the District Judge and that in the process of such consultation the District and Sessions Judge can apart from pointing out the unsuitability of a person, can also point out the names of other competent persons who could be included in the panel. In that case it was found that there was no panel prepared as contemplated in the rules. 15. Subsections 3, 4, 5 and 7 of Section 24 Cr.P.C, which are relevant for the purpose of this case read as follows: “ _**24. Public Prosecutors.-**_ ## **W.P. (C) No. 35631 of 2016(D)** ## **-: 12 :-** _(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district:_ _Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district._ _(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district._ _(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4)._ ## (6) xx _(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or subsection (6), only if he has been in practice as an advocate for note less than seven years._ 16. In effect the appointments to the post have to be made in tune with rule 8(2) read with the provisions contained in sub-sections 4 and 5 of Cr.P.C. or in other words the panel should contain only those who are found suitable by the District and Sessions Judge and that a **W.P. (C) No. 35631 of 2016(D)** ## **-: 13 :-** meaningful consultation is necessary before sending the panel. 17. The case of the petitioner is that the procedure as such prescribed in Rule 8(2) of the Rules should have been followed. 18. In the judgment in _**Bineesh's** case (supra)_ , one of the contentions was that the process of consultation with the Sessions Judge was not effective or meaningful as provided in sub-S.4 of S.24 as laid down in _**Omanakuttan Nair's case** (supra)_ which has been affirmed by the Apex Court. There the issue regarding termination of their appointment, claim for continuance, etc came up for consideration. In paragraph 17 of the judgment it was held that the consultative process under Section 24 Cr.P.C. is one where there must be equal participation by the District Magistrate and the Sessions Judge. There should be equal and effective participation by the District Magistrate and the Sessions Judge in the process of consultation as held in _**Omanakuttan Nair's**_ ## **W.P. (C) No. 35631 of 2016(D)** ## **-: 14 :-** _case (supra)_ . It was held that in the matter of appointment of Public Prosecutors / Additional Public Prosecutors or / District Government Pleaders / Public Prosecutors or, Additional District Government Pleaders / Additional Public Prosecutors, in addition to the procedure prescribed in R.8(2) of the 1978 Rules, the procedure for empanellment and consultation as provided in Section 24 Cr.P.C., as explained by this Court in _**Omanakuttan Nair's** case (supra)_ should also be followed before appointments are made. 19. In this case, it is seen that there is substantial compliance of the procedure. It was only after receipt of the letter from the District Collector that the District Judge addressed the President of the Bar Association calling for a panel of Advocates that the list was forwarded by the District Judge, including in the list only those he found fit for appointment, to the District Collector. Therefore it cannot be said that there is any non-compliance with the provisions, when ## **W.P. (C) No. 35631 of 2016(D)** ## **-: 15 :-** considered in the light of the judgments supra in which the provisions in the rules were interpreted with reference to various judgments of this court and that of the Hon'ble Apex Court. Moreover, it is seen that the petitioner had submitted application only on 06.09.2017, whereas the last date fixed in Ext.P1 letter was 19.07.2016. 20. Therefore, it cannot be said that any prejudice has been caused to the petitioner by not including him in the panel of Advocates. The averments in the counter affidavit would show that the appointments are made in tune with the law declared by this court in the judgments supra. When there is substantial compliance with the rules, no interference is called for under Article 226 of the Constitution of India that too at the instance of petitioner who did not even submit his application in time. 21. In the above circumstances, I do not find any illegality in the procedure leading to the impugned ## **W.P. (C) No. 35631 of 2016(D)** **-: 16 :-** appointments and hence any reason to interfere with the appointments. Accordingly, this writ petition is dismissed. Sd/- **P.V. ASHA** **JUDGE** DST //True copy// P.A. To Judge