Kerala High Court
Unknown vs By Advs.Sri.M.Ramesh Chander(Sr) on 24 November, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 3RD DAY OF APRIL 2018 / 13TH CHAITHRA, 1940
WP(C).No. 2275 of 2018
PETITIONER(S)
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JELNA T.P.,
AGED 42 YEARS, D/O. T. P. NARAYANAN, "SYAMANTAK". KANJIRA,
P.O. THOTTADA, KANNUR.
BY ADVS.SRI.M.RAMESH CHANDER(SR)
SMT.K.A.SANJEETHA
SRI.BONNY BENNY
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY SECRETARY TO HOME DEPARTMENT,
GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001.
2. DISTRICT COLLECTOR,
KANNUR-670001.
3. BEENA KALIYATH,
B. SC., LLB., ADVOCATE, YAMNA NIVAS, ERANHOLI P.O.,
THALASSERY-670107.
R1 & R2 BY GOVERNMENT PLEADER SRI.SUMAN CHAKRAVARTHY, (SR)
BY GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH
R3 BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.)
SRI.GEORGE MATHEWS
SRI.T.T.RAKESH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-03-2018,
THE COURT ON 03.04.2018 DELIVERED THE FOLLOWING:
TS
WP(C).No. 2275 of 2018 (H)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 PHOTOSTAT COPY OF THE JUDGMENT IN WPC NO.
29158/2010 DATED 24.11.2010.
EXHIBIT P2 PHOTOSTAT COPY OF THE NOTIFICATION WHICH CAME
IN MALAYALA MANORAMA DAILY DATED 28.6.2017.
EXHIBIT P3 PHOTOSTAT COPY OF THE BIO-DATA.
EXHIBIT P3(A) PHOTOSTAT COPY OF CBSE MARK LIST.
EXHIBIT P3(B) PHOTOSTAT COPY OF ENROLLMENT CERTIFICATE.
EXHIBIT P3(C) PHOTOSTAT COPY OF CERTIFICATE ISSUED BY KANNUR
BAR ASSOCIATION.
EXHIBIT P3(D) PHOTOSTAT COPY OF CERTIFICATE FROM DIRECTOR OF
PROSECUTION (ADMN.) DATED 17.3.2017.
EXHIBIT P3(E) PHOTOSTAT COPY OF CERTIFICATE FROM PRINCIPAL
MAGISTRATE JUVENILE JUSTICES COURT,
THALASSERY.
EXHIBIT P4 PHOTOSTAT COPY OF THE LIST SENT BY THE DISTRICT
JUDGE TO THE 1ST RESPONDENT WHICH THE
PETITIONER OBTAINED UNDER THE RIGHT TO
INFORMATION ACT.
EXHIBIT P5 PHOTOSTAT COPY OF THE ORDER G.O. (RT.) NO.
166/2018/HOME DATED 16.1.2018.
EXHIBIT P6 PHOTOSTAT COPY OF THE APPLICATION SUBMITTED BY
THE 3RD RESPONDENT TO THE 2ND RESPONDENT
DATED 27.6.2017.
EXHIBIT P6(A) PHOTOSTAT COPY OF THE BIO-DATA OF THE 3RD
RESPONDENT.
EXHIBIT P6(B) PHOTOSTAT COPY OF THE CERTIFICATE ISSUED BY
DISTRICT COURT BAR ASSOCIATION, THALASSERY
DATED 20.6.2017 TO THE 3RD RESPONDENT.
EXHIBIT P6(C) PHOTOSTAT COPY OF THE ENROLLMENT CERTIFICATE
OF THE 3RD RESPONDENT.
EXHIBIT P6(D) PHOTOSTAT COPY OF THE CERTIFICATE TO PROVE THE
DATE OF BIRTH OF THE 3RD RESPONDENT.
TS
WP(C).No. 2275 of 2018 (H)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT R3(A):- A TRUE COPY OF THE CERTIFICATE ISSUED BY
ADVOCATE V.JAYAKRISHNAN DATED 03.2.2018.
EXHIBIT R3(B):- A LIST OF SESSIONS CASES IN WHICH THE PETITIONER HAVE
APPEARED FOR THE ACCUSED AND CONDUCTED TRIAL.
EXHIBIT R3(C):- A TRUE COPY OF THE JOINING CERTIFICATE DATED 25.1.2018.
RESPONDENT(S)' EXHIBITS - NIL
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/TRUE COPY/
PS TO JUDGE
TS
05/04/2018
P.V.ASHA, J.
W.P.(C) No.2275 of 2018
Dated this the 3rd day of April, 2018
JUDGMENT
The appointment of Special Public Prosecutor in POCSO courts in Kannur District is under challenge in this writ petition.
2. The petitioner is a practising Advocate at Kannur and Thalassery. She submitted application for appointment as Special Public Prosecutor to conduct cases coming under Protection of Children from Sexual Offences Act, 2012 (POCSO Act) pursuant to Ext.P2 notification issued on 28.6.2017. The petitioner submitted her application before the District Collector along with her biodata and all the relevant certificates, including certificates regarding her conduct and performance of cases as contained in Ext.P3 series. The petitioner submits that the District Collector forwarded the application to the District Judge and the District Judge, on being convinced of her ability and experience included her as sl.no.1 in Ext.P4 list. However By Ext.P5 order, Government appointed the 3 rd respondent who was No.2 in Ext.P4 list. Producing the application submitted by the 3 rd respondent along with certificates attached to it the petitioner submits that she is the most competent person who should have been appointed in preference to the 3rd respondent.
3. The petitioner submits that she was rank No.2 in the rank W.P.(C) No.2275/18 :2: list for appointment to the post of Assistant Public Prosecutor Gr.II, for appointment on provisional basis. She worked as Asst.Public Prosecutor Gr.II on a provisional basis, in the Sub Divisional Magistrate Court, Thalassery for the period from 4.3.2011 to 4.3.2017 with additional charge of various 1 st Class Magistrates Courts in Kannur District. She was put in full additional charge of Juvenile Justice Court, Thalassery from 17.12.2012 to 4.3.2017. She conducted various cases under the POCSO Act and attended various training programs conducted by the Director of Prosecutions, Erankulam between 4.3.2011 and 4.3.2017. She acted as a Translator also at times at the request of the presiding officers as she is well versed with Hindi. She was in charge of all the POCSO cases which were pending before the Court. Out of the 13 cases, 4 were disposed of while she was posted there. She claims to have received rich encomiums from the presiding officers and alleges that the 3 rd respondent does not have any such qualification or experience. Relying on the judgment of Apex Court in State of Punjab & anr. v. Brijeshwar Singh Chachal & anr. :
(2016) 6 SCC 1 petitioner alleges that appointment of the 3 rd respondent is vitiated by political consideration giving least consideration to merit.
4. Respondents 1 and 2 as well the 3 rd respondent have filed W.P.(C) No.2275/18 :3: separate counter affidavits. In the counter affidavit of the 1 st respondent it is stated that the State Government had issued a communication to the District Collectors directing them to furnish a panel of qualified Advocates from each Districts in consultation with the District Judges, for appointment as Special Public Prosecutors under the POCSO Act with direction to comply with provisions of section of 24(4) of Cr.PC. It is stated that pending the framing of the POCSO Rules, Government had issued GO(Rt) 2117/2017/Home dated 8.8.2017, according to which, appointment of Special Public Prosecutors in the special courts under the POCSO Act would be done complying with and adopting Section 24 (4) of Cr.P. C and Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978. The District Collectors of the respective Districts prepared panels in compliance with Sec 24(4) of Cr.PC in consultation with the District and Sessions Judges concerned, for appointment of Special Public Prosecutors. It is pointed out that the process adopted for the selection is approved by this Court in the judgment dated 3.11.2017 in W.P.(C) No.22255 of 2017. According to Government the appointment is made strictly in accordance with rules. The appointment of the 3rd respondent was from a panel forwarded by the District Collector in consultation with the District Judge concerned W.P.(C) No.2275/18 :4: and not from a rank list. The counter affidavit also refers to the circumstances which led to the appointment of Special Public Prosecutors. It is stated that originally the additional Government Pleaders and Public Prosecutors were appointed as Special Public Prosecutors in the Additional District and Sessions courts for conducting cases under the POCSO Act. They were originally appointed under section 24(4) of Cr.PC read with Kerala Government Law Officers Rules, 1978. On 13.1.2016 a notification was issued clarifying that the Additional Government Pleaders and Public Prosecutors were also appointed as Special Public Prosecutors to deal with cases under POCSO Act. When steps were taken to terminate the services of the Additional Government Pleaders and Public Prosecutors and to make new appointments, the incumbent of the posts challenged the same before the Kerala Administrative Tribunal. The O.A filed by them were dismissed, which was upheld by this Court in the judgment in the OP(KAT) filed by them. In the meanwhile certain Additional Government Pleaders and Public Prosecutors, who were also appointed as Special Prosecutors under the POCSO Act, filed writ petitions challenging the proceedings for termination. This Court while approving the action of Government in terminating their services as Additional Government Pleaders and Public Prosecutors, directed that W.P.(C) No.2275/18 :5: their services as Special Prosecutors under the POCSO Act shall not be terminated until appointments are made under the rules framed under the POCSO Act. W.A.No.2264 of 2016 filed by the State against that was disposed of by judgment dated 01.12.2016 in which this Court observed that it was open to State Government to appoint duly qualified Advocates as Special Public Prosecutors under the POCSO Act exclusively. Steps for fresh appointment of Special Public prosecutors were initiated thereafter.
5. In the counter affidavit filed by the 3 rd respondent , it is stated that her appointment was strictly in accordance with Sec.24 of Cr.PC on being satisfied of her ability and competence. According to her, the appointment was made on the basis of a reasonable process of selection in accordance with the spirit of the statute and public interest. According to her, Sec.24 of the Cr.PC prescribes such procedure for appointment of Public Prosecutors for which panels are required to be prepared by the District Magistrate in consultation with the Sessions Judge. There is a clear prohibition under Sec.5 that no person shall be appointed by the State Government as Public Prosecutor or the Additional Public Prosecutor, unless his name appears in the panel prepared under section 24(4). The name of a person is included in the panel only after the Sessions Judge and the W.P.(C) No.2275/18 :6: District Magistrate are satisfied of the competence of the person for appointment as Public Prosecutor. It is also stated that Government need not record any reason in support of their conclusion. State Government can appoint one among the panel to the post of Public Prosecutor. According to her, there is no infirmity in the process by which she was selected and appointed and therefore there is no reason to interfere with her selection and appointment. It is also her case that the Sessions Judge while recommending the names is not conducting any selection process or making a comparative evaluation of the merits of the candidates and therefore State is free to make appointment from the list of persons recommended by the Sessions Judge. It is her further case that she is having 16 years of experience in conducting session's trials including the cases under the POCSO Act; whereas petitioner does not have any such experience in conducting session's case as she was practicing only in the courts at Kannur.
6. The petitioner has filed a reply affidavit asserting that Ext.P4 is a select list in which the District Judge had assigned her rank no.1 on the basis of her merit. It is also stated that no reason is stated for appointing the 3 rd respondent and the appointment is vitiated by extraneous considerations and it is contrary to the dictum laid down by the Apex Court as well as the recommendation of the Law Commission. W.P.(C) No.2275/18 :7:
7. I heard Sri. Ramesh Chander, the learned Senior Counsel for the petitioner, Sri. Gracious Kuriakose, the learned Counsel for the 3rd respondent and Smt. Mary Beena Joseph, the learned Senior Government Pleader for the official respondents and considered the rival contentions.
8. The question to be considered is whether this Court should go into the correctness of the decision of the 1 st respondent in appointing the 3rd respondent; whether this Court can assess/re-assess the inter-se merit of the candidates, on the basis of the materials furnished in the writ petition when Government have already found the 3rd respondent as suitable for appointment.
9. There is no dispute as to the qualification or eligibility of the 3rd respondent for appointment. The date of enrollment of the petitioner is 01.10.2000 and that of the 3 rd respondent is 27.05.2001. The date of birth of the petitioner is in 1975 and that of the 3 rd respondent is in 1966. Petitioner has produced Ext.P3 series of certificates which furnish the cases she conducted as Assistant Public Prosecutor before the Juvenile Justice Board and other certificates relating to her service as Assistant Public Prosecutor apart from other testimonials. Petitioner has produced the application along with the certificates submitted by the 3rd respondent pursuant to the W.P.(C) No.2275/18 :8: notification, as Ext.P6 series which she obtained under the Right to Information Act. Ext P6 series contains only the certificate from the Bar Association, indicating her membership with it, apart from the bio- data in which she has furnished her experience. However, along with the counter affidavit the 3 rd respondent has given a list of cases which she conducted in the Sessions Court. The contention of the petitioner is that appointment is not made on evaluation of merits. The appointment of Special Public Prosecutors in POCSO courts is governed by Section 32 of the Act, which reads as follows:
32. Special Public Prosecutors.b