IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 12TH OCTOBER 2011 / 20TH ASWINA 1933 WP(C).No. 3195 of 2011(Y) ----------------------------------------- PETITIONER(S): ------------------------- O.KUNHIKOYA THANGAL,S/O.VALIYAUNNI THANGAL, SADATH MANZIL,VALIYAPARAMBA.P.O, PULIKKAL(VIA),MALAPPPURAM DISTRICT,NOW FUNCTIONING AS DISTRICT ADDITIONAL GOVERNMENT PLEADER AND ADDITIONAL PUBLIC PROSECUTOR,MALAPPURAM. BY ADVS. SRI.K.M.SATHYANATHA MENON, SRI.M.V.ANANDAN. RESPONDENT(S): -------------------------- 1. THE DISTRICT COLLECTOR,MALAPPURAM, PIN-673001. 2. STATE OF KERALA,REPRESENTELDBY ITS SECRETARY TO LAW DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,PIN-695 001. 3. A.SOMASUNDARAN,AREEKARA HOUSE, KOVILAKAMI KUNDU,MANJERI.P.O,MALAPPURAM DISTRICT,PIN-673 531. R1 & R2 BY GOVERNMENT PLEADER SRI. JOSE ADIYODI R3 BY ADV. SRI.T.A.SHAJI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.3195/2011 Y APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER DTD. 5/06/2007, GO(MS) NO.111/07/LAW OF THE 2ND RESPONDENT. P2: COPY OF THE PROCEEDINGS DTD. 9/12/2010 OF THE DEPUTY COLLECTOR (GENERAL), MALAPPURAM. P3: COPY OF THE ORDER DTD. 20/01/2011 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss K.SURENDRA MOHAN, J. = = = = = = = = = = = = = WP(C).No.3195 of 2011-Y. = = = = = = = = = = = = = Dated this the 12th October, 2011. J U D G M E N T The petitioner has filed this writ petition challenging Ext.P3 order by which the third respondent has been appointed as the Additional Government Pleader and Additional Public Prosecutor, Malappuram in his place. 2. The case of the petitioner is that he was appointed as the Additional Government Pleader and Additional Public Prosecutor, Malappuram on 5.6.2007 as per Ext.P1 order. Thereafter, he has continued in service and he has been given salary even after the termination of his initial term of his appointment for three years. Since he is continuing in service even after the expiry of the term as per Ext.P3, it is contended that his termination as per Ext.P3 is violative of Rule 17 of the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of WP(C).No.3195/2011-Y. 2 Cases Rules, 1978 (in short 'the rules'). 3. According to the counsel for the petitioner, ever since the petitioner was allowed to continue after the expiry of the initial term of his appointment, he continued in service in terms of Rule 9 and therefore, as stipulated by the proviso to said rule, he is entitled to continue in service till he attains the age of sixty years. It is the further contention of the petitioner that though the State has the power to terminate the services of persons like him, the same would have to be exercised in compliance with Rule 17, which stipulates that before such termination, he be given one month's notice or be paid one month's salary in lieu of such notice. Since neither of the conditions in Rule 17 has been satisfied, it is contended that Ext.P3 termination is without any justification and liable to be set aside by this Court. 4. The contentions of the petitioner are opposed by the learned Government Pleader as well as Sri.T.A.Shaji, who appears for the third respondent. According to them, WP(C).No.3195/2011-Y. 3 Ext.P1 specifically provides that the petitioner's appointment was only for a period of three years. That being so, he had no right to continue after expiry of the term of his appointment. Since the term of his appointment has already expired, Rule 17 is not applicable and he was liable to be terminated at any time in exercise of the powers under Rule 9. Therefore, the counsel contends that the petitioner was not entitled to even continue after the expiry of the term of his appointment. 5. I have heard the contesting counsel. I have also given anxious consideration to the contentions raised. 6. The facts in this case are all admitted. Ext.P1 is the order of appointment of the petitioner. The order of appointment specifically provides that his appointment is for a period of three years from the date of assumption of charge. Ext.P1 is dated 5.6.2007. The case of the petitioner in this writ petition is that pursuant to Ext.P1, he took charge on 10.6.2007. Therefore, the three year period stipulated by Ext.P1 has expired. However, it is not WP(C).No.3195/2011-Y. 4 disputed that he has continued to discharge his duties as the Additional Government Pleader and Additional Public Prosecutor till the date of Ext.P3. The short question is whether the termination of the petitioner has to be made in compliance with the provisions and conditions of Rule 17. Rule 17 reads as follows: “R.17. Termination of appointment:- Notwithstanding anything contained in these rules, the Government may terminate the appointment of any Government Law Officer, other than a Special Government Pleader or Special Public Prosecutor, at any time before the expiry of the term of his appointment without assigning any reasons therefor: Provided that before such termination he shall be given one month's notice or be paid, as the case may be, one month's salary in lieu of such notice.” 7. A reading of the above rule makes it clear that it applies to termination of the appointment of any Government Law Officer, “at any time before the expiry of the term of his appointment.” Therefore it is clear that the Rule applies only to a termination before the expiry of the term of the appointment. In the present case, the term of WP(C).No.3195/2011-Y. 5 the appointment of the petitioner having already expired, the said Rule has no application. Therefore, the contention of the petitioner that Ext.P3 is vitiated for want of notice has to fail. 8. Rule 9, which applies to the case of the petitioner, is extracted hereunder for convenience of reference: “R.9. Term of appointment of Government Law Officers in District Court, Additional District Court and Sub Court Centres:- The term of appointment of a person appointed as District Government Pleader and Public Prosecutor or Additional Government Pleader and Additional Public Prosecutor, where the two posts are combined, or of a person appointed as District Government Pleader or Public Prosecutor or Additional Government Pleader or Additional Public Prosecutor, where the two posts are separate, shall be for a period of three years. The Government may re-appoint any such person for further periods not exceeding three years at a time: Provided that the services of any such person shall automatically terminate on his attaining the age of sixty years.” The above Rule provides for the term of appointment of persons like the petitioner. The term is stipulated as three years. But the Rule provides that the Government may WP(C).No.3195/2011-Y. 6 reappoint any such person for a further period not exceeding three years at a time. Rule 9 therefore is an enabling provision that empowers the Government to appoint persons like the petitioner as Additional Government Pleaders and Additional Public Prosecutors for succeeding terms that do not exceed three years at a time. There is also no bar against reappointment of the same person again. Therefore, there necessarily has to be an order of appointment for any person to claim that he has a right to continue as such. The proviso only stipulates an upper age limit to restrict the power of the Government to make such appointments of three year duration as stipulated by the Rules. The proviso cannot be construed to confer an entitlement on the petitioner to continue upto three years. 9. Inasmuch as, the term of appointment of the petitioner has already expired and no order of reappointment has been issued, he has no right to continue as such. The fact that he has continued to discharge his WP(C).No.3195/2011-Y. 7 official duties cannot confer any right on the petitioner to continue to do so or to challenge Ext.P3 on that ground. The above being the position, I do not find any infirmity in the impugned order Ext.P6. The writ petition fails and is accordingly dismissed. K.SURENDRA MOHAN, (Judge) Kvs/-