DIVAKARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONERS were appointed as Additional Government pleaders and Additional Public Prosecutors of Tellicherry, Palghat and Kottayam under R. 8 of the Kerala Government Law Officers (Appointment and Conditions of service) and Conduct of Cases Rules, 1978 (for short'the Rules' ). The term of appointment in each case was three years. That term has not expired in any of these cases. The Law Secretary issued notices under. R. 17 of the Rules informing the petitioners that the Government consider that the services of the petitioners are no more necessary and have therefore decided that their appointment should be terminated immediately. The appointments are terminable on the expiry of one month of the date of receipt of the notices. PETITIONERS challenge those notices.

(2.) THE competence of the Government to terminate their appointment is not disputed by the petitioners. Nor have they any case that the notices under R. 17 of the rules are defective in any manner except that they do not comply with Art. 166 (1) of the Constitution. According to them, there is no order of the Government. THEy urge three reasons in support of this submission, viz. (1) only a decision of the Council of Ministers and which is finally drawn up and communicated as an order of Government can effectively terminate their appointments; (2) the decision of the individual minister is not an order of the Government; and (3) no such order of the Minister or Council of Ministers can be constitutionally valid without the approval of the Governor. Reliance is placed on three decisions in support of these propositions, viz. (AIR 1963 SC 395), Ram Chandra. Secretary to Government of W. B. (AIR 1964 Cal. 265), and state of Kerala v. Lakshmikutty & Ors. (AIR 1985 SC 331 ).

(3.) COUNSEL for the petitioners submit that item 41 of the second Schedule, viz. "proposal for appointment of Law Officers not below the rank of Public Prosecutors" is a matter which is exclusively within the purview of the Council, and therefore, termination of such appointment should also be ordered by the Council. The individual Minister could not have taken a decision in the matter. I do not agree. What is within the contemplation of item 41 is a proposal for appointment of Law Officers not below the rank of Public Prosecutors. Proposal for appointment of Additional government Pleaders and Additional Public Prosecutors do not seem to fall within that entry. Government Pleader is right in his submission that the petitioners were appointed on the orders of the then Minister for Law. The council of Ministers did not decide upon their appointments. I perused the files relating to their original appointments which the Government Pleader produced. They bear out this fact. The petitioners cannot legitimately urge that only the Council was competent to decide to terminate their appointments.