JUDGMENT
K.S. Radhakrishnan, J.
1. W.P.C. No. 26852 of 2006 was preferred by the appellant herein seeking a writ of certiorari to quash the notice issued by the District Collector inviting applications from qualified advocates for appointment as District Government Pleaders and Public Prosecutors and Additional Government Pleaders and Additional Public Prosecutors in the Kollam district and for a declaration that the petitioner’s service as Additional District Government Pleader and Additional Public Prosecutor, Fast Track Court (Adhoc III) Kollam is not liable to be terminated till the expiry of three years period mentioned in his appointment order. Learned single judge found no illegality in the steps taken to terminate his service and dismissed the writ petition. Aggrieved by the same W.A. No. 1633 of 2007 was preferred. Against the interim order passed by the learned single judge W.A. No. 1358 of 2007 was preferred.
2. Petitioner was appointed as Additional Government Pleader and Additional Public Prosecutor at Fast Track Court (Adhoc III), Kollam as per order dated 23-06-2005. His service was terminated as per order G.O. (Ms) No. 113/07/Law dated 07-06-07 and the District Collector took steps to appoint an Additional Government Pleader for that court and various other courts. Counsel for the petitioner submitted that the procedure followed by the District Collector is illegal and against the dictum laid down by the apex court in Harpal Singh Chauhan v. State of U.P. as well as the decision of a Division Bench of this Court in Omanakuttan Nair v. State of Kerala . Learned Counsel submitted that consultation with the District Judge is not an empty formality. District Judge, it was submitted, would be in a better position to assess the legal and professional calibre of the person recommended for appointment and there is no reason to discard his opinion in the matter of appointment of Public Prosecutors.
3. Learned Advocate General submitted that the District Collector has strictly followed the provisions of the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 as amended by Government Notification G.O. (Ms) No. 70/2002/Law dated 06-03-2002. Learned Advocate General submitted that as per rules, if the District Judge has got any disapproval of a name suggested he must specifically state so and the grounds on which he expresses his disapproval. Learned Advocate General referred to the report of the District Judge dated 25-10-2006 and submitted that he has not specifically disapproved on specific grounds any of the recommendation made by the District Collector and consequently District Collector was justified in appointing persoas included in the list prepred by him.
4. The scope of the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 came up for consideration before this Court in Omanakuttan Nair’s case, supra (2003 (1) KLT 226). The court took the view that the 1978 Rules as well as 2002 Rules, in so far as they deviate from the procedure prescribed for appointment of Public Prosecutors under Section 24 of the Code of Criminal Procedure as interpreted by the Supreme Court in Chauhan’s case, supra are bad. This Court therefore declared those provisions invalid and unenforceable. It was directed that the procedure prescried under Section 24(4) for appointment of Public Prosecutors is required to be followed in the manner as interpreted and envisaged by the Supreme Court in Chauhan’s case, supra. The court disposed of the above mentioned case placing reliance on the ruling of the Supreme Court in Chauhan’s case.
5. We find that the judgment in Oamanakuttan Nair ‘s case, supra has been stayed by the apex court in S.L.P. (Civil) No. 22770-22774 of 2002 and the same is pending consideration before the apex court. Chauhan’s case was subsequently considered by Three Judges bench of the apex court in State of UP v. Johri Mal and the court held as follows:
The nature of the office held by a lawyer a vis-a-vis the State being in the nature of professional engagements, the Courts are normally charry to overturn any decision as to whether the State is satisfied with the performance of its counsel or not is primarily a matter between it and the counsel. The Code of Criminal Procedure does not speak of renewal or extension of tenure. The extension of tenure of Public Prosecutor or the district counsel should not be compared with the right of renewal under a licence or permit granted under a statute. The incumbent has no legally enforceable right as such. The action of the State in not renewing the tenure can be subjected to judicial scrutiny inter alia on the ground that the same is arbitrary. The courts normally would not delve into the records with a view to ascertain as to what impelled the State not to renew the tenure of a Public Prosecutor or a District Counsel.
The court however opined as foliows:
The state while appointing a counsel must take into account the following fundamental principles which are required to be observed that good and competent lawyers are required to be appointed for (i) good administration of justice (ii) to fulfill its duty to uphold the rule of law, (iii) its accountability to the public; and (iv) expenditure from the tax payers’ money.
On the basis of the decision in Johri Mal’s case, supra, petitioner cannot challenge the order of termination of service since no materials have been placed before us to show that the termination was arbitrary or illegal. Further the incumbent has no legally enforceable right as such to insist that he should be allowed to continue as Public Prosecutor. Original Rule 8 has been amended by the Kerala Government Law Officers (Appointment and Conditions of Service) Conduct of Cases (Amendment) Rules 2002. Rule 8 (2) how reads as follows:
2. Amendment of the Rules – In the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978, in Rule 8, for Sub-rule (2) and the Note thereunder, the following sub-rule shall be substituted, namely-
(2) For preparing the panel, the Distrit Collector shall follow the following procedure, namely:
(a) list of advocates from the roll of advocates of the Bar Council of Kerala having at least seven years of practice in the Bar and who having regard to their qualification, experience, integrity, reliability, reputation and character and antecedents are, in the opinion of the District Collector, fit to be appointed as a Government Law Officer shall be prepared and sent to the concerned District and Sessions Judge for consultation. The District and Sessions Judge shall return the list with his remarks within ten clear days from the date of receipt of the same by him.
Provided that in preparing the list it shall not be necessary to-advertise the vacancies or invite applications for the appointment.
(b) After the expiry of the time limit mentioned in Clause (a) for return of the list from the District and Sessions Judge the District Collector shall prepare the panel of advocates based on the list forwarded by him to the District and Sessions Judge under the said clause.
(c) In preparing the panel, the District Collector, shall not include the name of any advocate whose name was not included in the list prepared by him under Clause (a) or whose name was specifically disapproved by the District and Sessions Judge on specific grounds.
(d) The character and antecedents of all persons included in the panel shall be got verified through the concerned Superintendent of Police.
Provided that if members of the Scheduled Caste or Scheduled Tribe communities are qualified to be appointed as Law Officer the panel shall contain the name of one member from such community.
Rule 8(2) states that for preparing the panel, the Disrict Collector shall follow the procedure prescribed therein and that the District Collector shall not include the name of any advocate whose name was not included in the list prepared by him under Clause (a) or whose name was specifically disapproved by the District and Sessions Judge on specific grounds. The expressions “specifically disapproved” and “specific grounds” are to be noted. District Judge is not expected to go for and collect materials and find out specific grounds for disapproval of the name included in the list prepared by the District Collector but may gather information of the candidate from his colleagues or other judicial officers who had occasion to test his legal acumen, character and integrity. Guiding factors are experience, integrity, reliability, reputation, character and antecedents. Over and above, if any specific matter which will have some bearing in the matter of appointment should also be mentioned by the District Judge when he is being consulted as per rules.
6. We have perused the letter of the District Judge forwarded to the District Collector. True as per Rules, he has not specifically disapproved; the name of any person included in the list with specific grounds. District Judge in his letter stated as follows:
You will certainly agree with me that the persons who are to be appointed need be a certain level of knowledge, competency and efficiency to protect the interest of the State. On a personal assessment I found none of the advocates whose name figure in the list of candidates for the post of District Government. Pleader competent and efficient enough to protect the interest of the State.
7. Rule stipulates that while preparing the panel District Collector shall not include the name of any candidate which has been specifically disapproved by the District and Sessions Judge on specific grounds. Letter of the District Judge has not stated any specific ground for disapproval with regard to a particular person included in the panel. In that view of the matter, in our view, there is no illegality, in accepting the panel prepared by the District Collector. All the same, we have already indicated, it is embarassing for the District Judge to find out specific grounds. District Judge can only as certain whether the person has got the qualification, experience, integrity, reliability, reputation and character and antecedents as per Rule 8(2). If the District Judge reports that a candidate lacks experience, reputation, character etc. that must be given due weight rather than asking for specific grounds.
8. We are of the view, in any view of the matter petitioner cannot contend that he should be allowed to continue till the original term expires. Learned single Judge thereofre rightly rejected the writ petition. Writ appeals therefore lack merits and the same would stand dismissed.