Notification Inviting Applications Only For Govt Pleader Can't Be Used To Appoint Public Prosecutor: Kerala High Court
The Kerala High Court has held that single notice cannot be treated as notification for two posts when Rule 7 of the Kerala Government Law Officers(Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 enables the Government to separate the offices of Government Pleaders and Public Prosecutors at any Court and make separate appointments.Justice N Nagaresh was delivering...
The Kerala High Court has held that single notice cannot be treated as notification for two posts when Rule 7 of the Kerala Government Law Officers(Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 enables the Government to separate the offices of Government Pleaders and Public Prosecutors at any Court and make separate appointments.
Justice N Nagaresh was delivering the judgment while disposing of two writ petitions filed by practising advocates from Alappuzha District, who challenged the legality of the appointment made to the post of District Government Pleader/ Public prosecutor in Alappuzha District pursuant to a notification dated December 18, 2024.
One of the petitioners contended that the consultative process was flawed because the District Judge had excluded several candidates without adequate reasoning while the other petitioner who did not submit his application submitted that the notice for the application only mentioned about the filling up of the post of Government Pleader alone hence he did not respond to the same on the belief that there would be separate recruitment drive for the post of Public Prosecutor.
The Court examined the provision for the selection to the post of Government Pleader/ Public Prosecutor under the 1978 Rules, which require the Government to appoint law officers from a panel prepared by the District Collector after consultation with the District and Sessions Judge. The Court further noted that the appointment of Public Prosecutors is governed by Section 18 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which mandates a consultative process involving the District Magistrate and the Sessions Judge.
The Court also relied on an earlier Division Bench decision in Suo motu revision initiated by the High Court v State of Kerala [2025 KLT OnLine 1731] which clarified that Public Prosecutors do not hold a “public post” under Article 309 of the Constitution, and therefore the 1978 Rules cannot govern their appointment.
The Court observed that the District and Sessions Judge had scrutinised the credentials of eight candidates, obtained reports from Sessions Judges, and interacted with the candidates before recommending a panel of three advocates. The Court thus held that there was no illegality or irregularity in the consultative process.
“It is evident that the District and Sessions Judge has applied his mind with reference to relevant materials gathered, during the consultative process. I therefore do not find any illegality or irregularity in the consultative process.” Court held.
The Court however found the appointment unsustainable because the notification issued by the District Collector invited applications only for the post of District Government Pleader, even though the selected candidate was ultimately appointed as District Government Pleader and Public Prosecutor.
“One should keep in mind that Rule 7 of the Rules, 1978 enables the Government to separate the offices of Government Pleaders and Public Prosecutors at any Court and make separate appointments accordingly. Therefore, if the public notice is for appointment to the post of District Government Pleader, one will be justified in assuming that the Government will come up with another notification for appointment to the post of Public Prosecutor.” Court observed
The Court further observed that if the notice was for appointment as District Government Pleader alone, the panel of Advocates could not have been prepared for appointment to the post of the Public Prosecutor.
“A reading of the notice does not indicate that the appointment was intended to the post of District Government Pleader and Public Prosecutor. Therefore, the notice cannot be treated as one calling applications for the post of Public Prosecutor.” the Court held.
The Court thus set aside the entire selection process and the consequent appointment and directed the State Government to issue a fresh notification for appointment to the post of District Government Pleader and Public Prosecutor and make appointment after considering all eligible candidates.
The Court permitted the present incumbent appointed to continue in office until a fresh appointment is made pursuant to the new selection process.
Case Title: Adv. P T Joseph v State of Kerala and Ors. and connected case
Case No: WP(C) 16469/ 2025 and connected case
Citation: 2026 LiveLaw (Ker) 142
Counsel for Petitioner: B Pramod, Athul M V, Ajay S Koshy, L Ram Mohan
Counsel for Respondents: T B Hood, M Isha, Gracious Kuriakose,