E.S.Prathyash vs Kerala Public Service ...
2023 Latest Caselaw 3146 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
           THE HONOURABLE MR.JUSTICE N.NAGARESH
 THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
                  WP(C) NO. 9783 OF 2023
PETITIONERS:

    1    E.S.PRATHYASH, AGED 29 YEARS
         S/O.SAKTHIDHARAN, ERANEZHUTH HOUSE,
         CONVENT ROAD, KANIMANGALAM DESOM & VILLAGE,
         THRISSUR, PIN - 680027
    2    ASWINKUMAR K.S, AGED 27 YEARS
         S/O.K.P.SHAJI, KALLIDUMBIL HOUSE,
         VALKULAMBU DESOM, KIZHAKKENCHERRY 1ST VILLAGE,
         KORENCHIRA P.O, ALATHUR TALUK,
         PALAKKAD, PIN - 678684

         BY ADVS.
         REBIN VINCENT GRALAN
         DINESH G WARRIER
         VIMAL VIJAY
RESPONDENTS:

    1    KERALA PUBLIC SERVICE COMMISSION,
         REPRESENTED BY THE SECRETARY
         KERALA PUBLIC SERVICE COMMISSION, PATTOM,
         THIRUVANANTHAPURAM, PIN - 695004
    2    SECRETARY, KERALA PUBLIC SERVICE COMMISSION
         PATTOM, THIRUVANANTHAPURAM, PIN - 695004

         SRI.P.C. SASIDHARAN (SC)

     THIS WRIT PETITION    (CIVIL) HAVING COME UP         FOR
ADMISSION ON 23.03.2023,   THE COURT ON THE SAME          DAY
DELIVERED THE FOLLOWING:
 WP(C) No.9783 of 2023

                               2


                            JUDGMENT

Dated this the 23rd day of March, 2023

The petitioners, who are practising Lawyers at Thrissur

and Palakkad Districts in the Criminal Courts, have filed this

writ petition seeking to set aside Ext.P3 to the extent it

prescribes the date "1st January, 2022" as the cut off date for

acquiring not less than three years of active practice in the

Criminal Courts for selection and appointment to the post of

Assistant Public Prosecutor Grade-II (Category No.659/2022)

instead of the date "1st January, 2023".

2. The petitioners further seek to declare that the

fixation of the date 1st January, 2022 as the cut off date for

acquiring not less than three years of active practice in the

Criminal Courts for selection and appointment to the post of

Assistant Public Prosecutor Grade-II is to be corrected as

"1st January, 2023" and Ext.P3 Gazette Notification is liable to

be corrected accordingly. The petitioners have further sought WP(C) No.9783 of 2023

certain incidental reliefs.

3. The petitioners state that they are Lawyers

practising in Criminal Courts since 2019. They applied for

appointment to the post of Assistant Public Prosecutor Grade

II in response to Ext.P3 Notification. Their applications were

rejected as per Exts.P4 and P5, on the ground that the

petitioners did not complete three years practice on the first

day of the year in which the applications were invited.

4. The petitioners state that the date of Gazette

Notification was 31.12.2022. The last date for submission of

application was 01.02.2023. However, by fixing the cut off

date as 1st January, 2022 for acquiring not less than three

years active practice in Criminal Courts, the petitioners are

denied opportunity to participate in the selection.

5. The petitioners state that they have a legitimate

expectation that they will be permitted to compete for

selection to the post of Assistant Public Prosecutor as they

have already completed three years of active practice in WP(C) No.9783 of 2023

Criminal Courts.

6. Counsel for the petitioners pointed out that the

Kerala Public Service Commission usually invites applications

for appointment to the post of Assistant Public Prosecutor in

the middle of the calender year. The selection process is

completed in the same year and appointments will be done in

the same year. In the present case, the Kerala Public Service

Commission has published the Notification only on the last

date of the year i.e., on 31.12.2022. Thereby, persons who

have completed three years of practice as on that date are

prevented from participating.

7. The counsel for the petitioner pointed out that as

the Notification was made on 31.12.2022, the entire process

of selection shifts to the year 2023. All steps pursuant to the

Notification can be taken only in the year 2023. In such

circumstances, it would only just and proper that persons who

hold qualification as on 01.01.2023 are also permitted to

participate in the selection.

WP(C) No.9783 of 2023

8. The counsel for the petitioner further pointed out

that the applications are invited and the last date for

submission of application is fixed as 01.02.2023. As the last

date is of the year 2023, those who would have the

qualification as on the 1st day of January, 2023 should be

permitted to compete in the selection process.

9. It is further urged on behalf of the petitioners that

recruitment to the cadre of Assistant Public Prosecutor comes

with long breaks and the last selection process was five years

ago, in the year 2017. Unless the petitioners are permitted to

participate in the present selection proceedings, it is likely that

in the next recruitment process, the petitioners would be

declared as unfit due to age bar.

10. In the facts and circumstances of the case, the

petitioners pray that the 2nd respondent be directed to include

the name of the petitioners in the shortlist as well as in the

final ranklist to be published for the post of Assistant Public

Prosecutor Grade II.

WP(C) No.9783 of 2023

11. I have heard the learned counsel for the petitioners

and the learned Standing Counsel for the respondents.

12. Ext.P3 Gazette Notification is under challenge. By

Ext.P3 Gazette Notification dated 31.12.2022, the Kerala

Public Service Commission invited applications online from

qualified candidates for appointment to the cadre of Assistant

Public Prosecutor Grade II, in the Scale of Pay of ₹56,500-

1,18,100/- against all anticipated vacancies. Clause 7 of

Ext.P3 stipulated that the candidate must be a member of the

Bar and must have not less than three years of active practice

in Criminal Courts as on 1st January, 2022. It is the

prescription of the cut off date as 1st January, 2022, which has

adversely affected the petitioners.

13. Rule 7(ii) of the Special Rules for the post of

Director of Prosecution (Administration), Deputy Director of

Prosecution and Senior Assistant Public Prosecutor, Assistant

Public Prosecutor (Senior Grade), Assistant Public Prosecutor

Grade-I, Assistant Public Prosecutor Grade-II, 2018 which is WP(C) No.9783 of 2023

governing appointment to the cadre of Assistant Public

Prosecutor Grade II, it is specifically stipulated that the

persons who applied for the post of Assistant Public

Prosecutor Grade II shall have not less than three years of

active practice in Criminal Courts on the 1 st day of January of

the year in which applications are invited. The said provision

is so clear that it is not susceptible to two meanings. The

Notification was published on 31.12.2022 in the year 2022.

The 1st day of January of the year is 01.01.2022. Therefore,

going by the Statutory Rules, the applicants should

necessarily hold three years of active practice in Criminal

Court as on 01.01.2022.

14. The contention of the counsel for the petitioners is

that since the Gazette Notification is published on 31.12.2022,

the entire selection process spread over through the year

2023. Even the last date for submission of application is fixed

as 01.02.2023. Therefore, necessarily the qualifications need

to be satisfied only as on 01.01.2023. I am afraid such an WP(C) No.9783 of 2023

interpretation is not possible in view of the clarity with which

Rule 7(ii) of the Special Rules has been framed.

15. The counsel for the petitioners relied on the

judgments of the Apex Court in Ashok Kumar Sonkar v.

Union of India [(2007) 4 SCC 54] and Rakesh Kumar

Sharma v. State (NCT of Delhi) and others [(2013) 11 SCC

58] in order to urge that the cut off date for acquisition of

qualification should be the last date of submission of

application. The judgments in Ashok Kumar Sonkar (supra)

and Rakesh Kumar Sharma (supra) were delivered in a

different context. In the case of recruitment to the post of

Assistant Public Prosecutor Grade II, the recruitment,

selection and appointment are governed by Statutory Rules.

The Service Rules clearly provide that the qualification as to

active practice in Criminal Court shall be satisfied as on the

1st January of the year in which applications are invited.

This Court has considered the issue earlier in the

judgment in W.P.(C) No.5279 of 2023. This Court found WP(C) No.9783 of 2023

similar argument unsustainable. In view of the facts as stated

above, the writ petition is found without any merit. The writ

petition is therefore dismissed.

Sd/-

N.NAGARESH JUDGE spk WP(C) No.9783 of 2023

APPENDIX OF WP(C) 9783/2023

PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE CERTIFICATE OF PRACTICE DATED 22.11.2019 ISSUED BY THE BAR COUNCIL OF INDIA IN RESPECT OF THE 1ST PETITIONER Exhibit P2 A TRUE COPY OF THE CERTIFICATE OF PRACTICE DATED 22.11.2019 ISSUED BY THE BAR COUNCIL OF INDIA IN RESPECT OF THE 2ND PETITIONER Exhibit P3 A TRUE COPY OF THE GAZETTE NOTIFICATION DATED 31.12.2022 (CATEGORY NO.659/2022) FOR SELECTION AND APPOINTMENT TO THE POST OF ASSISTANT PUBLIC PROSECUTOR GRADE II IN THE KERALA STATE PROSECUTION SERVICE, ISSUED BY THE 2ND RESPONDENT Exhibit P4 A TRUE COPY OF THE STATEMENT PERTAINING TO THE 1ST PETITIONER, REJECTING HIS APPLICATION AS DOWNLOADED FROM THE OFFICIAL WEBSITE OF KERALA PUBLIC SERVICE COMMISSION Exhibit P5 A TRUE COPY OF THE STATEMENT PERTAINING TO THE 2ND PETITIONER REJECTING HIS APPLICATION AS DOWNLOADED FROM THE OFFICIAL WEBSITE OF KERALA PUBLIC SERVICE COMMISSION Exhibit P6 A TRUE COPY OF THE GAZETTE NOTIFICATION DATED 30.08.2017 FOR THE POST OF ASSISTANT PUBLIC PROSECUTOR GRADE II ISSUED BY THE 2ND RESPONDENT Exhibit P7 A TRUE COPY OF THE ORDER DATED 30.01.2023 IN OA.(EKM) NO.182/2023 & CONN.CASES ISSUED BY THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL