IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 WA.No. 2367 of 2008() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.693/2008 Dated 28/01/2008 .................... APPELLANT(S): PETITIONER ------------------------ K.C.JOSHUA,ADVOCATE, (FORMER ADDITIONAL GOVERNMENT PLEADER AND ADDITITONAL P.PROSECUTOR, FAST TRACK COURT NO.II, PATHANAMTHITTA). BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): RESPONDENTS -------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF LAW (INSPECTION WING), KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, PATHANAMTHITTA. BY GOVT.PLEADER SRI.BENNY GERVASIS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & C.K.ABDUL REHIM, JJ. ----------------------------------------- W.A. No. 2367 of 2008 ----------------------------------------- Dated this the 9th day of January, 2009 JUDGMENT Kurian Joseph,J. Petitioner is the appellant. The writ petition was filed with the following prayers:- i) issue a writ of mandamus or any other appropriate writ, order or direction commanding respondents to reinstate the petitioner in service as Additional Government Pleader and Additional Public Prosecutor at Pathanamthitta District with retrospective effect from 21-2-2007 with all consequential benefits including arrears of salary. ii) issue a writ of mandamus or any other appropriate writ order or direction commanding respondents to take appropriate action on Ext.P5 within a time limit. In Ext.P5 representation the petitioner prayed that he may be reinstated as Additional Government Pleader and Additional Public Prosecutor. It is also stated therein that he was forced to make such prayer since the direction by this court in W.P(C) No.24270/2007 regarding payment of notice pay and arrears was not complied with. It is submitted that in the meanwhile those amounts have been paid. In view of the payment as W.A. No. 2367 of 2008 -:2:- above, the writ petition was closed. Aggrieved, the writ appeal is filed. 2. In the writ petition the learned single Judge has already taken note of Ext.P4 judgment in W.P(C) No.24270/2007 in the case of the petitioner himself. It may be noted that the petitioner approached this court by the said writ petition praying for an appropriate writ or direction commanding the respondents to pay one month's salary in lieu of notice and to pay the arrears of salary. This court by Ext.p4 judgment in the said writ petition directed the respondents to disburse the termination salary. The main contention in the writ petition was that despite Ext.P4 judgment, the amounts have not been paid and therefore, he is entitled to reinstatement. 3. Sri.Philip Mathew, learned counsel appearing for the appellant, placing reliance on the decision in M.V.Mathai v. State of Kerala, 1995 (2) KLT 493, submits that since the procedure contemplated under Rule 17 of the Kerala Government Law Officers (Appointment and Condition of Service) and Conduct of Cases Rules, 1978 has not been followed the termination is illegal and hence the consequential W.A. No. 2367 of 2008 -:3:- reinstatement should be ordered. We are afraid the contentions cannot be appreciated. In W.P(C)No.24270/2007 despite the termination the only prayer was for payment of notice pay. Having approached this court for a direction to get the notice pay prior to premature termination, the writ petitioner cannot be heard to say that the termination is illegal for want of non- compliance with the procedure under the Rules. Even otherwise once notice pay is paid, that is in substitution of the notice itself. The contention is that it is not paid in advance. Now that the petitioner claimed and received the same pursuant to the direction by this court, even that contention is not open to him. That apart, we find from W.P(C)No.24270/2007 that the petitioner himself has written to the Registrar, High Court of Kerala, in Ext.P4 representation therein that “... I have relinquished my office with effect from 1-3-07 subject to the orders in Writ Appeal No.458/2007”. W.A.No.458/2007 arises from W.P(C)No.25451/2006 wherein the petitioner himself has challenged the termination. The learned single Judge dismissed the writ petition by judgment dated 19-2-2007. Aggrieved the writ petitioner and others filed the writ appeal. The writ appeal W.A. No. 2367 of 2008 -:4:- was dismissed following the well settled principles and holding that the appointment of a Counsel by the State is a matter of choice of the Government and that nobody can thrust upon himself on the State. Therefore, hardly anything survives after the judgment dated 14-3-2007 in W.A.No.458/2007. Having approached this court in the writ petitions referred to above and having been visited with adverse orders and having informed in the representation referred to in W.P(C)No.24270/2007 that the petitioner was relinquishing his office, he should not have ventured for filing the writ petition. It is nothing but abuse of the process of the court. The appeal is hence dismissed with costs. (KURIAN JOSEPH, JUDGE) (C.K.ABDUL REHIM, JUDGE) ahg. KURIAN JOSEPH & C.K.ABDUL REHIM, JJ. --------------------------- W.A. No. 2367 of 2008 ---------------------------- JUDGMENT 9th January, 2009