Introduction:

The Kerala High Court recently delivered an important judgment clarifying the legal framework governing the appointment of Government Pleaders and Public Prosecutors in the State. In Adv. P T Joseph v State of Kerala and Others and connected case, the Court examined the validity of the appointment made to the post of District Government Pleader/Public Prosecutor in Alappuzha District pursuant to a notification issued by the District Collector on December 18, 2024. The case was decided by Justice N. Nagaresh who analysed the procedure prescribed under the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 and the provisions governing the appointment of Public Prosecutors under Section 18 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Two practising advocates from Alappuzha District approached the High Court challenging the legality of the selection process and the eventual appointment made by the Government. The petitioners argued that the notification issued by the authorities invited applications only for the post of District Government Pleader, yet the candidate selected through that process was appointed to the combined office of District Government Pleader and Public Prosecutor. The Court was therefore called upon to determine whether such an appointment was legally sustainable when the notification itself did not explicitly mention both posts. During the course of the proceedings the Court examined the statutory scheme governing appointments to these positions and also considered the consultative procedure followed by the authorities. While the Court ultimately upheld the manner in which the consultative process had been conducted, it found a fundamental flaw in the recruitment notification. According to the Court, a public notice inviting applications for a specific post cannot later be treated as a notification for two separate offices, particularly when the relevant rules permit the Government to make separate appointments for those posts. Consequently, the Court set aside the entire selection process and directed the State Government to issue a fresh notification inviting applications for the relevant posts in accordance with the law.

Arguments of the Petitioners:

The petitioners, both practising advocates from Alappuzha District, challenged the selection process primarily on two grounds. The first petitioner contended that the consultative process adopted by the authorities while preparing the panel of eligible candidates was flawed and arbitrary. According to him, the District and Sessions Judge who was involved in the consultative process had excluded several candidates from consideration without providing adequate reasons. The petitioner argued that such exclusion undermined transparency and fairness in the selection process. Since the preparation of the panel forms a crucial step in the appointment of Government Pleaders and Public Prosecutors, the petitioner contended that the consultative process must strictly adhere to principles of fairness and reasoned decision-making. The second petitioner raised a different but equally significant contention. He pointed out that the notification issued by the District Collector on December 18, 2024 invited applications only for the post of District Government Pleader. According to him, the notice did not indicate that the recruitment process was intended to fill the post of Public Prosecutor as well. Because of this, he did not submit an application in response to the notification as he believed that a separate recruitment process would be initiated for the appointment of the Public Prosecutor. The petitioner argued that had the notification clearly stated that the appointment would be made to both the posts of District Government Pleader and Public Prosecutor, he and several other eligible candidates would have applied. Therefore, he contended that the appointment process deprived potential candidates of a fair opportunity to compete for the post of Public Prosecutor. The petitioners further argued that the relevant rules specifically permit the Government to separate the offices of Government Pleader and Public Prosecutor. Therefore, when a notification is issued for a particular post, candidates are entitled to rely on the contents of that notification. Treating a notice for one post as if it were meant for two different posts would violate the principles of fairness and transparency that govern public appointments. On these grounds the petitioners requested the High Court to declare the selection process illegal and set aside the appointment made pursuant to the notification.

Arguments of the Respondents:

The respondents, including the State Government and the authorities responsible for conducting the selection process, defended the appointment and argued that the procedure followed in the case was lawful and consistent with the applicable rules. They submitted that the consultative process required under the 1978 Rules had been properly followed before preparing the panel of candidates. Under the rules governing appointment of law officers, the Government is required to appoint Government Pleaders from a panel prepared by the District Collector in consultation with the District and Sessions Judge. The respondents stated that this process had been meticulously followed in the present case. According to the respondents, the District and Sessions Judge had carefully scrutinised the credentials of all applicants before recommending a panel. The judge had also obtained reports from Sessions Judges and had personally interacted with the candidates before finalising the panel of three advocates for consideration by the Government. Therefore, the respondents argued that the consultative process was thorough and free from any arbitrariness or illegality. The respondents also referred to the legal framework governing the appointment of Public Prosecutors under Section 18 of the Bharatiya Nagarik Suraksha Sanhita, 2023. This provision requires a consultative process involving the District Magistrate and the Sessions Judge before appointing a Public Prosecutor. According to the respondents, the process followed in the present case substantially complied with these requirements. The respondents further relied upon a previous Division Bench decision of the Kerala High Court in Suo motu revision initiated by the High Court v State of Kerala. In that decision, the Court had clarified that Public Prosecutors do not hold a “public post” within the meaning of Article 309 of the Constitution. Consequently, the respondents argued that the appointment process could not be challenged on the ground that it violated rules governing public service appointments under Article 309. Based on these submissions, the respondents requested the Court to dismiss the writ petitions and uphold the appointment made by the Government.

Court’s Judgment:

After examining the rival submissions and the relevant statutory provisions, the Kerala High Court delivered a detailed judgment addressing both aspects of the dispute. The Court first considered the allegation that the consultative process had been conducted in an arbitrary manner. Upon reviewing the materials placed before it, the Court found no evidence to support this claim. Justice N. Nagaresh observed that the District and Sessions Judge had examined the credentials of eight candidates who had applied for the post. The judge had also obtained reports from Sessions Judges regarding the professional competence and reputation of the applicants. In addition, the candidates had been personally interacted with before the panel of three advocates was finalised. Based on this material, the Court concluded that the consultative process had been conducted with due diligence and in accordance with the applicable rules. The Court therefore rejected the contention that the selection process was vitiated by arbitrariness or irregularity. However, the Court reached a different conclusion when it examined the legality of the recruitment notification issued by the District Collector. The Court noted that the notification invited applications only for the post of District Government Pleader. It did not mention that the appointment would also be made to the post of Public Prosecutor. Despite this, the candidate selected through the process was ultimately appointed to the combined office of District Government Pleader and Public Prosecutor. The Court held that such an approach was legally unsustainable. Referring to Rule 7 of the 1978 Rules, the Court pointed out that the Government has the authority to separate the offices of Government Pleader and Public Prosecutor and make separate appointments to those posts. Therefore, if the Government intends to fill both positions through a single recruitment process, the public notice must clearly indicate this intention. Justice N. Nagaresh observed that candidates are entitled to rely on the contents of the notification while deciding whether to apply for a particular post. If the notification specifies that the recruitment is for the post of District Government Pleader alone, it is reasonable for candidates to assume that a separate notification will be issued for the appointment of the Public Prosecutor. In the present case, the Court found that the notice did not indicate that the appointment was intended for both posts. Consequently, the notice could not be treated as a call for applications for the post of Public Prosecutor. The Court also observed that since the notice referred only to the post of District Government Pleader, the panel prepared by the authorities could not have been used for appointing a Public Prosecutor. The failure to clearly specify both posts in the notification deprived potential candidates of a fair opportunity to apply for the position of Public Prosecutor. This defect, according to the Court, went to the root of the selection process and rendered the appointment legally unsustainable. In light of these findings, the Court set aside the entire selection process and the consequent appointment made pursuant to the notification. However, the Court also recognised the need to ensure continuity in the functioning of the office. Therefore, it permitted the incumbent who had been appointed through the impugned process to continue in office temporarily until a fresh appointment is made. The Court directed the State Government to issue a new notification inviting applications for the posts of District Government Pleader and Public Prosecutor and to conduct the selection process afresh in accordance with the law. By doing so, the Court sought to ensure that all eligible candidates are given a fair opportunity to compete for the posts and that the recruitment process adheres to the principles of transparency and fairness.