Kerala High Court
The State Of Kerala vs Santhosh T.A on 25 August, 2025
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W.A No.1455 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
MONDAY, THE 25TH DAY OF AUGUST 2025 / 3RD BHADRA, 1947
WA NO. 1455 OF 2020
AGAINST THE JUDGMENT DATED 09.10.2019 IN WP(C) NO.9486
OF 2019 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENT NOS.1 TO 3 IN WP(C):
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY, HOME (C) DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPRUAM-695 001
2 THE SECRETARY,
LAW (INSPECTION WING) DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPRUAM-695 001
3 THE DISTRICT COLLECTOR,
COLLECTORATE, CIVIL STATION, IDUKKI, PIN-685 601
BY SRI.K.P. HARISH, SR.GOVT. PLEADER
RESPONDENT/PETITIONER IN WP(C):
SANTHOSH T.A
S/O. AUGUSTHY, THEVARKUNNEL HOUSE, THUNDANGANAD P.O.,
THODUPUZHA,PIN-685 587,IDUKKI DISTRICT
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BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.THOMAS P.KURUVILLA
SRI.MANJUNATH MENON
SRI.R.GITHESH
SHRI.HARIKRISHNAN S.
SRI.P.PRIJITH
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
20.08.2025, THE COURT ON 25.08.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
Sushrut Arvind Dharmadhikari, J.
The present intra-court appeal filed under Section 5 of the
Kerala High Court Act, 1958 assails the judgment dated 09.10.2019
passed in WP(C) No.9486 of 2019 as well as the order dated 23.07.2020
in R.P No.423 of 2020.
2. The appellants herein were respondents 1 to 3 and the
respondent herein was the petitioner in the writ petition.
3. The respondent herein had filed the writ petition praying for
the following reliefs:
i. Issue a writ of mandamus or other writ, order or direction
compelling the respondents 1 to 3 to disburse the salary of
the petitioner from 10-11-2016 to 24-11-2018 as fixed in
Exhibit P11, while the petitioner was working as Special
Public Prosecutor under the POCSO Act of First Additional
District and Sessions Court, Thodupuzha within a time
limit to be fixed by this Hon'ble Court;
ii. Issue a writ of mandamus or other writ, order or direction
compelling respondents 2 and 3 to dispose of Exhibits. P13
and P14 representations, within a time limit to be fixed by
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this Hon'ble Court and communicate the decision thereof
to the petitioner;
iii. Issue such other writ, order or direction as this Hon'ble
Court deem fit while considering the peculiar
circumstances of the case.
4. The brief facts of the case are that the respondent was
appointed as Additional Government Pleader and Additional Public
Prosecutor-I at Thodupuzha District and Sessions Court for a period
of three years. On 13.01.2016, the respondent was given additional
charge of Special Public Prosecutor in the Court of Additional District
and Sessions Judge-I for conducting prosecution in POCSO courts.
The appointment made on 06.07.2013 was renewed on 29.02.2016, and
the respondent was re-appointed as Additional Government Pleader
and Public Prosecutor-I for three years with effect from 12.07.2016.
The service of the respondent as Additional Government Pleader and
Additional Public Prosecutor-I was terminated on 09.11.2016. Being
aggrieved, the respondent challenged the same in WP(C) No.21469 of
2016. The writ petition came to be decided on 26.09.2016 and it was
declared that the service of the respondent as Special Public
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Prosecutor under The Protection of Children from Sexual Offences
Act, 2012 (hereinafter referred to as 'the POCSO Act') cannot be
terminated.
5. The appellant-State challenged the judgment passed in the
writ petition in W.A No.2264 of 2016. The writ appeal was allowed
with liberty to the appellants to appoint duly qualified Advocates as
Special Public Prosecutors under the POCSO Act exclusively.
However, it also observed that the respondent shall continue only as
Special Public Prosecutor under the POCSO Act till fresh
appointments are made to the said post by the State Government.
Being aggrieved by the same, the respondent filed SLP(C) No.2919 of
2017 which was dismissed vide order dated 03.02.2017. Thereafter,
the respondent filed R.P No.260 of 2017 before this Court which was
also dismissed on 05.04.2017, and he was allowed to continue till
fresh appointments are made. Ultimately, the respondent was
relieved from duty on 24.11.2018. Thereafter he filed W.P.(C) No.9486
of 2019 seeking disbursement of salary as fixed vide Government
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Order dated 24.11.2018 (Ext.P11). The relevant extract of the said
Government Order is reproduced below:
i) Special Prosecutors appointed in Courts constituted to try and
decide cases under N.D.P.S./ S.C./S.T./POSCO/ABARI Laws will
be getting a salary of Rs. 60,000/- (consolidated) per month.
ii) Those who are already appointed in the above posts and
continuing in the posts as of now; will get the benefit of this
order from the date of their appointments.
iii) Special Prosecutors now working in the N.D.P.S./Abkari Courts;
their designation will hereafter be known as Additional
Government Pleaders.
6. The respondent is claiming salary @ Rs.60,000/- per month
for the period from 10.11.2016 to 24.11.2018 as Special Public
Prosecutor under the POCSO Act.
7. Learned counsel for the appellants submitted that the
learned Single Judge has committed an error in allowing the writ
petition holding that the respondent is entitled for the benefit
granted as per Ext.P11 Government Order. Learned Single Judge
failed to consider the fact that the respondent was given only
additional charge of Special Public Prosecutor to deal with POCSO
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cases till new Special Public Prosecutors are appointed. Ext.P11
Government Order clearly states that the monthly consolidated pay
of Rs.60,000/- is fixed for those Special Public Prosecutors whose
remuneration was not fixed earlier. In the instant case,
remuneration was already fixed @ Rs.10,000/- per month, as per
Ext.P7. Ext.P11 Government Order was issued on 24.11.2018 whereas
the respondent handed over the charge of Additional Public
Prosecutor-II to the new incumbent on the very same day i.e.
24.11.2018 which would be clear from Ext.R1(a) which categorically
states that the new incumbent Adv.P.B.Wahida took charge at 10 a.m,
meaning thereby the respondent stood relieved on completion of his
tenure. Learned Single Judge misinterpreted the Government Order
Ext.P11 on the ground that the said order had been issued on
24.11.2018 and the respondent was in service on that day, though it
may have been the last day of his tenure. In view of the aforesaid, the
judgment passed by the learned Single Judge deserves to be set aside.
8. Per contra, learned counsel appearing for the respondent
opposed the submissions of the appellants and contended that
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though the term of the respondent expired on 24.11.2018, he would
be entitled for the enhanced salary/consolidated pay @ Rs.60,000/-
per month as has been granted to one of the similarly situated
Advocates. Learned Single Judge, after making enquiry from the
District Collector, had found that at one occasion another
Government Advocate was paid the salary. Thereafter, with a view to
maintain parity, learned Single Judge has passed the judgment.
Accordingly, no fault can be found with the judgment passed by the
learned Single Judge. The writ appeal deserves to be dismissed with
heavy cost.
9. Heard learned counsel on both sides and perused the
records.
10. Even though the respondent might have been relieved on
the same day i.e. 24.11.2018, no benefit can be extended to him since
the benefit is contemplated only for those persons who were in
service as on the date of that order i.e. 24.11.2018 and that the
respondent continued only on the basis of the said order. Therefore,
he cannot claim any benefit. In any case, the term of the respondent
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expired on 09.11.2016. Therefore, if the term of the substantial post
itself is over, the respondent could not have been continued on the
additional charge. However, he continued till fresh appointments
were made, in the light of the interim order passed by this Court. Be
that as it may, since the new incumbent had joined and taken over
charge at 10 a.m on 24.11.2018, it cannot be said that the respondent
was continuing in service. The respondent was never appointed as
Public Prosecutor to defend POCSO cases but was only given
additional charge. Ext.P11 Government Order speaks about regular
appointment of the Public Prosecutors. Moreover, while giving the
respondent an additional charge of Public Prosecutor (POCSO cases),
remuneration of Rs.10,000/- was fixed for discharging additional
duties.
11. Paragraph 2(ii) of Ext.P11 Government Order dated
24.11.2018 specifically provides that the Special Public Prosecutors
appointed in the courts constituted to try and decide cases under the
NDPS/SC/ST/POCSO/Abkari Laws will be getting salary of Rs.60,000/-
(consolidated) per month. The respondent in this case was holding
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the substantive post of Additional Government Pleader. Therefore,
giving additional charge of Special Public Prosecutors would not
amount to appointment. Learned Single Judge erred in coming to the
conclusion that the respondent is a person who was in service as on
24.11.2018.
In view of the aforesaid, the judgment passed by the learned
Single Judge deserves to be set aside and the same is accordingly set
aside.
The writ appeal is allowed. No order as to costs.
Sd/-
SUSHRUT ARVIND DHARMADHIKARI
JUDGE
Sd/-
SYAM KUMAR V.M
JUDGE
smp
