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2025 DIGILAW 197 (KER)

Shinu K. R. v. State Of Kerala

2025-02-06

D.K.SINGH

body2025
JUDGMENT : D. K. Singh, J. These writ petitions have been filed seeking a writ of mandamus or any appropriate writ, order or direction to the respondents to make reservation in favour of the person with benchmark disabilities while engaging the Public Prosecutor in Pathanamthitta district. 2. The learned counsel for the petitioners have submitted that Section 34 of the Rights of Persons with Disabilities Act, 2016(hereinafter referred to as 'Act of 2016) envisages to give reservation of 4% of the total number of vacancies in the cadre strength in each group of posts to the persons with benchmark disabilities i.e, one per cent each for benchmark disability defined in the Act. 3. The submission is that the Public Prosecutors are also appointed by the Government, and this is public employment in the state and therefore, the reservation to the person with disabilities should be given while appointing Public Prosecutors. It is further submitted that the Government is not giving any reservation to persons with disabilities while appointing Public Prosecutors, which is a clear violation of the mandate of Section 34 of the Act of 2016, and the Government should be directed to make provisions for giving reservations to the persons with benchmark disabilities while making appointments of Public Prosecutors. 4. On the other hand, Sri.Bimal K.Nath learned Government Pleader submits that Section 34 envisages reservation to persons with benchmark disabilities against vacancies in a cadre. There is no cadre of Public Prosecutors, and there are no vacancies in the cadre against which the reservations to the person with benchmark disabilities can be made. It is submitted that Public Prosecutors are engaged by the Government from the bar to defend its cases. It is the choice of a client to engage any person of competence to defend its cases. No horizontal or vertical reservation can be made while engaging Public Prosecutors inasmuch as there is no cadre of Public Prosecutors and there are no vacancies as per Section 34 of the Act of 2016, against which the reservation can be made. The learned Government Pleader relied on the Judgment of the Hon’ble Supreme Court in the case of the State of U.P and others v. U.P. State Law Officers Association and others [ (1994)2 SCC 204 ]. The relevant paragraphs of the said judgment read as under: “13. The learned Government Pleader relied on the Judgment of the Hon’ble Supreme Court in the case of the State of U.P and others v. U.P. State Law Officers Association and others [ (1994)2 SCC 204 ]. The relevant paragraphs of the said judgment read as under: “13. The appointment of lawyers by the Government and the public bodies to conduct work on their behalf, and their subsequent removal from such appointment have to be examined from three different angles, viz., the nature of the legal profession, the interests of the public and the modes of the appointment and removal. 14. Legal profession is essentially a service-oriented profession. The ancestor of today's lawyer was no more than a spokesman who rendered his services to the needy members of the society by articulating their case before' the authorities that be. The services were rendered without regard to the remuneration received or to be received. With the growth of litigation, lawyering became a full-time occupation and most of the lawyers came to depend upon-it as the sole source of livelihood. The nature of the service rendered by the lawyers was private till the Government and the public bodies started engaging them to conduct cases on their behalf. The Government and the public bodies engaged the services of the lawyers purely on a contractual basis either for a specified case or for a specified or an unspecified period. Although the contract in some cases prohibited the lawyers from accepting private briefs, the nature of the contract did not alter from one of professional engagement to that of employment. The lawyer of the Government or a public body was not its employee but was a professional practitioner engaged to do the specified work. This is so even today, though the lawyers on the full-time rolls of the Government and the public bodies are described as their law officers. It is precisely for this reason that in the case of such law officers, the saving clause of Rule 49 of the Bar Council of India Rules waives the prohibition imposed by the said rule against the acceptance by a lawyer of a full-time employment. 15. The relationship between the lawyer and his client is one of trust and confidence. The client engages a lawyer for personal reasons and is at liberty to leave him also, for the same reasons. 15. The relationship between the lawyer and his client is one of trust and confidence. The client engages a lawyer for personal reasons and is at liberty to leave him also, for the same reasons. He is under no obligation to give reasons for withdrawing his brief from his lawyer. The lawyer in turn is not an agent of his client but his dignified, responsible spokesman. He is not bound to tell the court every fact or urge every proposition of law which his client wants him to do, however irrelevant it may be. He is essentially an adviser to his client and is rightly called a counsel in some jurisdictions. Once acquainted with the facts of the case, it is the lawyer's discretion to choose the facts and the points of law which he would advance. Being a responsible officer of the court and an important adjunct of the administration of justice, the lawyer also owes a duty to the court as well as to the opposite side. He has to be fair to ensure that justice is done. He demeans himself if he acts merely as a mouthpiece of his client. This relationship between the lawyer and the private client is equally valid between him and the public bodies. 16. Over the years, the public sector has grown considerably, and with its extension and expansion, the number of lawyers engaged in the public sector has increased noticeably so much so that it can truly be said that today there is a public sector in the legal profession as well. The expansion of the public sector activities has necessitated the maintenance of a permanent panel of lawyers. Some of the lawyers are also in full-time employment of the public institutions as their law officers. The profile of the legal profession has thus undergone a change. 17. The Government or the public body represents public interests, and whoever is in charge of running their affairs, is no more than a trustee or a custodian of the public interests. The protection of the public interests to the maximum extent and in the best possible manner is his primary duty. The public bodies are, therefore, under an obligation to the society to take the best possible steps to safeguard its interests. The protection of the public interests to the maximum extent and in the best possible manner is his primary duty. The public bodies are, therefore, under an obligation to the society to take the best possible steps to safeguard its interests. This obligation imposes on them the duty to engage the most competent servants, agents., advisers, spokesmen and representatives for conducting their affairs. Hence, in the selection of their lawyers, they are duty-bound to make earnest efforts to find the best from among those available at the particular time. This is more so because the claims of and against the public bodies are generally monetarily substantial and socially crucial with far-reaching consequences. 18. The mode of appointment of lawyers for the public bodies, therefore, has to be in conformity with the obligation cast on them to select the most meritorious. An open invitation to the lawyers to compete for the posts is by far the best mode of such selection. But sometimes the best may not compete or a competent candidate may not be available from among the competitors. In such circumstances, the public bodies may resort to other methods such as inviting and appointing the best available, although he may not have applied for the post. Whatever the method adopted, it must be shown that the search for the meritorious was undertaken and the appointments were made only on the basis of the merit and not for any other consideration.” 5. It is further submitted that the appointment of Public Prosecutors and Government Pleaders in District courts is governed by the Kerala Government Law Officers (Appointment and Conditions of Service) Rules, 1976. (hereinafter referred to as ‘1976 Rules’) Section 24 of the Code of Criminal Procedure, 1973 and Section 18 of the Bharatiya Nyaya Sanhita, 2023 and Rule 8 of the 1976 Rules delineate the method of appointment of Government Law Officers at the District level. As per Rule 8 (9) of 1976 Rules, the term of appointment of the Government Law Officers at the district level is for a period of three years. Rule 17 of 1976 Rules provides that the Government may terminate the appointment of any Government Law Officers at any time before the expiry of the terms of his appointment without assigning any reason by giving one months’ notice or by paying one month’s salary in lieu of such notice. Rule 17 of 1976 Rules provides that the Government may terminate the appointment of any Government Law Officers at any time before the expiry of the terms of his appointment without assigning any reason by giving one months’ notice or by paying one month’s salary in lieu of such notice. The Government Pleaders and Public Prosecutors do not constitute a cadre in service and therefore, there is no question of applying Section 34 of the Act of 2016. 6. I have considered the submissions advanced on behalf of the parties. Section 34 of the Act of 2016 reads as under: “34. Reservation : (1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent. of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent. each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:— (a) blindness and low vision; (b) deaf and hard of hearing; (c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy; (d) autism, intellectual disability, specific learning disability and mental illness; (e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities: Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time: Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section. (2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability: Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government. (3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit.” 7. Thus, the reservation up to 4% to the persons with benchmark disabilities in a service. The 4% reservation is against the vacancies in a cadre. The appointment of the Government Pleader and Public Prosecutor is not an appointment in a service which has a cadre strength, and there are no vacancies against which the reservation of 4% under Section 34 of the Act of 2016 can be made applicable. Even otherwise, the appointment of the Advocates as Government Pleader or Public Prosecutor is fiat of the Government which is a client before the Court and the Government is entitled to appoint the best of the Advocates as Government Pleader and Public Prosecutor to defend its cases. No one has the right to be appointed as Government Pleader and Public Prosecutor. The appointment of Government Pleaders and Public Prosecutors is at the pleasure of the Government, and the tenure of such appointment can be terminated at the pleasure of the Government as held in paragraphs 13 to 18 of the judgment of the Hon’ble Supreme Court in the case of the State of U.P and others (supra). In view thereof, the direction as sought in these writ petitions cannot be given inasmuch as the provisions of Section 34 of the Act of 2016 have no application in appointments of Advocates as Government Pleaders and Public Prosecutors. In view thereof, the direction as sought in these writ petitions cannot be given inasmuch as the provisions of Section 34 of the Act of 2016 have no application in appointments of Advocates as Government Pleaders and Public Prosecutors. Therefore, I find no substance in these writ petitions, which are hereby dismissed. ORDER This Court suo motu corrects the following in the judgment dated 06.02.2025: (i) The year of the Kerala Government Law Officers (Appointment and Conditions of Service) Rules appearing as ‘1976’ in the judgment is corrected as ‘1978’. (ii) ‘Rule 8(9)’ appearing in the fifth line of paragraph 5 in page 10 of the judgment shall be corrected as ‘Rules 8 and 9’ of 1978 Rules.