Appointment As Govt Pleader Or Public Prosecutor Not A 'Right', No Reservation Provided For Persons With Benchmark Disabilities Under RPwD Act: Kerala HC

Post By 24law
February 20, 2025

Pranav B Prem

The Kerala High Court has ruled that the reservation mandated under Section 34 of the Rights of Persons with Disabilities Act, 2016 (RPwD Act) cannot be extended to appointments of Government Pleaders and Public Prosecutors. The Court held that since these positions do not have a specific cadre strength, there are no vacancies within a cadre against which such reservations can be applied.

Background

The writ petitions were filed seeking a directive to the Government of Kerala to provide reservation to persons with benchmark disabilities under Section 34 of the RPwD Act while appointing Public Prosecutors in Pathanamthitta district. The petitioners argued that the post of Public Prosecutor is a form of public employment made by the State, and therefore, reservation should be provided as per the mandate of the RPwD Act. They contended that the failure to extend reservations to these positions was a violation of statutory provisions.

Government’s Stand

The Government Pleader submitted that Section 34 of the RPwD Act applies only to vacancies in cadre-based services, whereas Public Prosecutors and Government Pleaders are appointed from the Bar at the discretion of the government. Since these positions do not form part of a structured cadre, there are no vacancies against which reservations could be implemented. It was further argued that the appointment of an advocate to such posts is a matter of government discretion, as the government acts as the client in these cases. The selection process is based on merit and competence, and the government has the prerogative to appoint the best-suited legal professionals to represent its interests.

Court’s Observations

Justice D.K. Singh held that:

"The 4% reservation is against the vacancies in a cadre. The appointment of the Government Pleader and Public Prosecutor is not an appointment in a service which has a cadre strength, and there are no vacancies against which the reservation of 4% under Section 34 of the Act of 2016 can be made applicable. Even otherwise, the appointment of the Advocates as Government Pleader or Public Prosecutor is fiat of the Government which is a client before the Court and the Government is entitled to appoint the best of the Advocates as Government Pleader and Public Prosecutor to defend its cases. No one has the right to be appointed as Government Pleader and Public Prosecutor."

The Court relied on the Supreme Court judgment in State of U.P and others v. U.P. State Law Officers Association and others (1994) 2 SCC 204, which held that the appointment and termination of Government Pleaders and Public Prosecutors is at the pleasure of the government. The relevant paragraphs of that judgment were cited to emphasize that such appointments are contractual in nature and do not constitute regular public employment. Furthermore, the Court noted that the appointment of Government Pleaders and Public Prosecutors in district courts is governed by the Kerala Government Law Officers (Appointment and Conditions of Service) Rules, 1976. As per Rule 8(9) of these Rules, the term of appointment is three years, and under Rule 17, the government may terminate their services at any time without assigning reasons.

Verdict

The Kerala High Court dismissed the petitions, holding that the provisions of Section 34 of the RPwD Act do not apply to the appointment of Government Pleaders and Public Prosecutors. The Court reiterated that these appointments are at the discretion of the government, and there exists no right for any individual to claim such a position as a matter of entitlement. Accordingly, the writ petitions were dismissed.