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2001 DIGILAW 717 (KER)

George Varghese v. State of Kerala

2001-12-04

B.N.SRIKRISHNA, M.RAMACHANDRAN

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Judgment :- B. N. Srikrishna, C. J. The two petitions challenge the appointment of Law Officers such as Liaison Officer, Government Pleaders and Senior Government Pleaders. 2. The Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 (hereinafter referred to as 'the Rules') lay down the qualifications and procedure for appointment of Law Officers. R.2(b) prescribes six kinds of Government Law Officers who are appointed by the Government to conduct Government cases in any Court or Tribunal in the State or in the Supreme Court. We are, however, concerned with the categories of Law Officers viz. (1) Liaison Officer of the High Court and (2) Senior Government Pleaders and Government Pleaders. R.3 provides that besides the Advocate General and Additional Advocate General the following categories of Government Law Officers would appear for the Government in the High Court, namely, (i) Public Prosecutor, (ii) Senior Government Pleader, (iii) Government Pleader and (iv) Liaison Officer. Sub-r.(2) of R.3 provides that the number of Law Officers in each of the categories shall be such as may be fixed by the Government from time to time. We are informed that, in all, 44 sanctioned posts of Government Law Officers, out of which one is the post of Liaison Officer and the rests are posts of Senior Government Pleaders and Government Pleaders. 3. The procedure for appointment of Government Law Officers is indicated by R.4. The appointment of Public Prosecutor, Senior Government Pleader, Government Pleader and Liaison Officer is required to be made by the State Government from a panel of names of Advocates furnished by the Advocate General. The proviso to R.4 requires that in furnishing the panel of names the Advocate General shall include at least two names of Scheduled Castes/Scheduled Tribes communities for every ten vacancies reported. 4. R.5 prescribes the qualifications for appointment as Government Law Officers in the High Court and the said rule reads as under: "5. Qualifications for appointment as Government Law Officers in the High Court. 4. R.5 prescribes the qualifications for appointment as Government Law Officers in the High Court and the said rule reads as under: "5. Qualifications for appointment as Government Law Officers in the High Court. - (1) No person shall be included in the panel furnished by the Advocate General for appointment as a Government Law Officer in the High Court unless such person (a) in the case of Public Prosecutor or a Senior Government Pleader or Liaison Officer has for at least ten years been an Advocate of a High Court and has actually practised in the High Court for at least 5 years; (b) in the case of a Government Pleader he has for at least seven years been an Advocate of a High Court and has actually practised in the High Court for at least 3 years: (a) Provided that a member of a Scheduled Caste or a Scheduled Tribe shall be eligible to be included in the panel for appointment as a Government Pleader or Liaison Officer if he has for at least five years been an Advocate of a High Court and has actually practised in the High Court for at least 3 years. Explanation. - In computing the standing at the bar for purposes coming under clauses (a) and (b) above the persons should have actually practised in the High Court for a period of 5 years to be considered for appointment as Public Prosecutor or Senior Government Pleader or Liaison Officer and 3 years in the High Court to be considered for appointment as Government Pleader. (2) Only those persons, who, having regard to their qualifications, experience, integrity, reliability, reputation and character and antecedents are in the opinion of the Advocate General fit to be appointed, shall be included in the panel. Note. - It shall not be necessary to advertise the vacancies or invite applications for appointment. " The note appended to R.5 specifically provides that it shall not be necessary to advertise the vacancies or invite applications for appointment. 5. Forty-four persons came to be appointed as Government Law Officers in different categories under the above rules. Their appointments are challenged as not complying with the rules. The affidavit filed by respondents 1 and 2, ie. " The note appended to R.5 specifically provides that it shall not be necessary to advertise the vacancies or invite applications for appointment. 5. Forty-four persons came to be appointed as Government Law Officers in different categories under the above rules. Their appointments are challenged as not complying with the rules. The affidavit filed by respondents 1 and 2, ie. , the State Government and the Law Secretary, indicate that a large number of persons "had submitted their bio-datas to the third respondent Advocate General for consideration. The third respondent after scrutiny of the information furnished therein, and after being satisfied that the persons were qualified to be appointed as Government Law Officers of different categories, had forwarded a panel of 44 names for consideration of the State Government. The State Government appointed one person (P. C. Type) as Liaison Officer and 43 persons as Senior Government Pleaders/Government Pleaders. 6. It is really not the province of this Court to sit in appeal over the discretion exercised by the Advocate General under the rules in drawing up a panel of names for recommendation to the State Government. It is, however, contended by the petitioners that the Advocate General cannot recommend someone who is not qualified under the rules. With a view to ensure that the Rules have been scrupulously complied with, we would have to call upon the learned Advocate General to file an affidavit to the effect that he has complied with the rules. To avoid such an embarassing situation, we requested him to furnish the original bio-datas of the persons considered fit to be put on the panel recommended to the State Government. Accordingly, an affidavit was filed by one C.K. Rajasekhara Panicker, Under Secretary to the Government, Law Department, dated 10th October, 2001. A list of 44 names is enclosed therewith indicating their names, dates of birth, dates of enrollment, years of practice and years of actual practice in the High Court. 7. Despite this information being made available, counsel for the petitioners raised some contentions with regard to the correctness of the information supplied in the affidavit. The challenge is only to the appointment of SI. No. 1, Sri. P. C. lye, Liaison Officer (date of birth 13. 12. 1951), SI. No. 12, Smt. Praicy Joseph, Sr. G. P. (date of birth: 20.5.1962), SI. No. 13, Sri. C. S. AjithPrakash, Sr. G.P. (date of birth: 31.5. The challenge is only to the appointment of SI. No. 1, Sri. P. C. lye, Liaison Officer (date of birth 13. 12. 1951), SI. No. 12, Smt. Praicy Joseph, Sr. G. P. (date of birth: 20.5.1962), SI. No. 13, Sri. C. S. AjithPrakash, Sr. G.P. (date of birth: 31.5. 1965), SI. No. 14, Sri. Viju Thomas, Sf. G.P. (date of birth: 15.4.1956), SI. No. 18, Sri. John Joseph Vettikkad, Sr. G. P. (date of birth: 16. 10. 1964), SI. No. 19, Sri. P. V. Lonachan, Sr. G. P. (date of birth: 6.7.1957), SI. No. 22, Sri. T.K. Kunjabdulla, Sr. G.P. (date of birth: 1.12.1955), SI. No. 28, Smt. P. Deepthi, G.P. (date of birth: 4.3.1969), SI. No. 30, Sri. T. K. Latheef, G. P. (date of birth: 18.4.1952), SI. No. 32, Sri. P. I. Davis, G. P. (date of birth: 23.6.1963), SI. No. 35, Smt. M.J. Rajasree, G.P. (date of birth: 20.3.1966), SI. No. 37, Noorji Noushad, G.P. (date of birth: 30.5.1970), SI. No. 38, Sri. P.M. Habeeb, G.P. (date of birth: 21.4.1964), SI. No. 39, Smt. Treesa Rani George, G.P. (date of birth: 20.10.1954), SI. No. 42, Sri. Aloysius Thomas, G.P. (date of birth: 7.7.1957) and SI. No. 44, Sri. Sojan James, Addl. G. P. (date of birth: 10.2.1964). 8. Since these appointments were challenged on the ground that they did not qualify under R.3, we called for the original bio-datas furnished by the aspirants. We noticed that these persons did have the requisite qualification of actual practice in the High Court for five years/three years depending whether they sought appointment as Senior Government Pleaders/Government Pleaders. It is also the case with the person who has been appointed as Liaison Officer. 9. A subsidiary contention is urged that'actual practice' means that a person should be appearing in the High Court every day. We are not in a position to accept this contention. Placing reliance on sub-r.(2) of R.S, it is contended that only those persons who, having regard to their qualifications, experience, integrity, reliability, reputation and character and antecedents are in the opinion of the Advocate General fit to be appointed shall be included in the panel. In the first place, we notice that the opinion to be formed is that of the Advocate General. A person's integrity, reliability, reputation, character and antecedents, are matters of general opinion on the basis of the information available to the Advocate General. In the first place, we notice that the opinion to be formed is that of the Advocate General. A person's integrity, reliability, reputation, character and antecedents, are matters of general opinion on the basis of the information available to the Advocate General. No specific instance is brought to our notice that the opinion formed by the Advocate General was erroneous, nor do we think we can sit in appeal over the subjective satisfaction of the Advocate General to whom the rule leaves it. 10. With regard to qualifications and experience, these are matters which can be objectively tested. Hence, we scrutinised the bio-datas of all the incumbents and we notice that they do fulfil the requirements of the rule on both counts, with regard to experience, it was sought to be contended, though somewhat weakly, that'actual experience in the High Court' would suggest appearance in the High Court every day. We are unable to agree. Actual experience in the High Court would mean that a person must be qualified to appear in the High Court and must have appeared in the High Court at some time during the period prescribed. For example, a person who is enrolled as an Advocate may regularly come to the High Court and sit in the Bar room hoping to get a brief for appearance in Court. In our view, irrespective of whether such a person puts in appearance before any court in High Court, that person would be qualified under the rules. Whether such person should be a fit person to represent the State Government, is a matter for the Advocate General to consider. All persons qualified under the rules need not be put in the panel, as they may not turn to be good Law Officers. That, however, is left to the subjective satisfaction of the Advocate General. Though not sitting in appeal over it, we would recommend to the learned Advocate General that one important aspect may be kept in view when names are sent for consideration for appointment as Government Law Officers. It is in public interest that Government Law Officers are selected only from amongst qualified and competent persons so that interests of the State and the public is not prejudicially affected. 11. It is in public interest that Government Law Officers are selected only from amongst qualified and competent persons so that interests of the State and the public is not prejudicially affected. 11. There is a last contention that the proviso to R.3 has not been complied with in as much as sufficient number of Scheduled Castes/Scheduled Tribes communities have not been recommended. The learned Additional Advocate General points out that, in all, six such candidates were recommended out of whom Government has appointed only two as they were found fit by the Government. It is the submission of the learned Additional Advocate General, and we agree with it, that since no advertisements are called for at a given time, if sufficient number of Scheduled Castes/ Scheduled Tribes communities are not available to be included in the panel to be recommended to the State Government, such a deficiency could not be treated as non-compliance with the proviso to R.4. In the result, we find no substance in any of the contentions raised in both the Writ Petitions and they are hereby dismissed. No order as to costs.