Gujarat High Court
Laxman Rupchand Meghwani vs State Of Gujarat & 2 on 30 October, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/3734/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 3734 of 2015
With
SPECIAL CRIMINAL APPLICATION NO. 4360 of 2015
With
SPECIAL CRIMINAL APPLICATION NO. 5372 of 2015
With
CRIMINAL MISC. APPLICATION NO. 11998 of 2015
In
SPECIAL CRIMINAL APPLICATION NO. 3734 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ?
YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India NO or any order made thereunder ?
========================================================== LAXMAN RUPCHAND MEGHWANI....Applicant(s) Versus STATE OF GUJARAT & 2....Respondent(s) ========================================================== Appearance:
S.CR.A. NO.3734 OF 2015:
MR BB NAIK, SR ADVOCATE WITH MR RJ GOSWAMI, ADVOCATE for the Applicant(s) No. 1 Page 1 of 106 HC-NIC Page 1 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT MR SHALIN MEHTA WITH MR PR THAKKAR, SR ADVOCATES for the Respondent(s) No. 3 MR KAMAL B TRIVEDI ADVOCATE GENERAL WITH MR MITESH AMIN PUBLIC PROSECUTOR for the Respondent(s) No. 1 NOTICE SERVED for the Respondent(s) No. 2 S.CR.A. NO.4360 OF 2015:
MR VIRAT G POPAT, ADVOCATE for the Applicant(s) No. 1 MR SHALIN MEHTA WITH MR PR THAKKAR, SR ADVOCATES for the Respondent(s) No. 4 MR KAMAL B TRIVEDI ADVOCATE GENERAL WITH MR MITESH AMIN PUBLIC PROSECUTOR for the RESPONDENT(s) No. 1 S.CR.A. NO.5372 OF 2015:
MR MIHIR THAKORE SR ADVOCATE WITH MR SALIL M THAKORE, ADVOCATE for the Applicant(s) No. 1-2 MR SHALIN MEHTA WITH MR PR THAKKAR, SR ADVOCATES for the Respondent(s) No. 3 MR KAMAL B TRIVEDI ADVOCATE GENERAL WITH MR MITESH AMIN PUBLIC PROSECUTOR for the RESPONDENT(s) No. 1 CR.M.A. NO.11998 OF 2015:
MR BB NAIK, SR ADVOCATE WITH MR RJ GOSWAMI, ADVOCATE for the Applicant(s) No. 1 MR SHALIN MEHTA WITH MR PR THAKKAR, SR ADVOCATES for the Respondent(s) No. 3 MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR MITESH AMIN, PUBLIC PROSECUTOR for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :30/10/2015 CAV COMMON JUDGMENT 1 Since the issues raised in all the three captioned writ applications are more or less the same, those were heard analogously and are being Page 2 of 106 HC-NIC Page 2 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT disposed of by this common judgment and order. However, for the sake of convenience, the Special Criminal Application No.3734 of 2015 is treated as the lead matter.
2 The Government of Gujarat, by order and in the name of the Governor, issued a Notification dated 07.05.2015 and appointed Shri Raghuvir Nandkrishna Pandya, the respondent No.3 herein, as the District Government Pleader and Public Prosecutor of Vadodara. The question for consideration is: whether the appointment of the respondent No.3 as the District Government Pleader and Public Prosecutor in the District of Vadodara was an infraction of Section 24(3) of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C.') and the Law Officers (Appointment and Conditions of Service) and Conduct of Legal Affairs of the Government Rules, 2009 (for short, 'the Rules 2009')? Was he qualified for an appointment as the District Government Pleader and Public Prosecutor - if so - has the mandatory process of consultation as provided under Section 24 of the Cr.P.C., stood followed?
3 The applicants of all the three writ applications are residents of Vadodara. They have prayed for a writ of quo warranto removing Shri Raghuvir Pandya from the office of the District Government Pleader (DGP) and Public Prosecutor, Vadodara, as according to them, he is not Page 3 of 106 HC-NIC Page 3 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT fit and suitable for the post. It is the case of the writ applicants that appropriate representations were made before the State Government in writing as regards the appointment of Shri Pandya, as the DGP and PP of Vadodara. The case of the writ applicants is that Shri Pandya in the year 2004 was the Public Prosecutor and had conducted a very sensational trial popularly known as the "Best Bakery Case". It is pointed out that the Supreme Court in the case of Zahira Habibulla H Sheikh V. State of Gujarat [2004(4) SCC 158] made scathing remarks against Shri Pandya in his capacity as the Public Prosecutor as regards his character, integrity and competency. According to the writ applicants, the scathing remarks passed by the Supreme Court in the above referred case renders Shri Pandya to be totally unfit and unsuitable for the post of the DGP and Public Prosecutor. It is also the case of the writ applicants that there was no effective consultation between the District Magistrate and the Sessions Judge as regards the observations of the Supreme Court and also on other vital issues.
● WHAT WAS THE BEST BAKERY CASE ?
4 Between 8.30 p.m. of 1.3.2002 and 11.00 a.m. of 2.3.2002, a business concern known as the "Best Bakery" at Vadodara was burnt down by an unruly mob of large number of people. In the ghastly incident, 14 persons died. The attacks were stated to be a part of the Page 4 of 106 HC-NIC Page 4 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT retaliatory action to avenge the killing of 56 persons burnt to death in the Sabarmati Express near godhra in the State of Gujarat. A lady by name Zahira was the main eyewitness to the incident who lost her family members including helpless women and innocent children in the gruesome incident. Many persons other than Zahira were also the eyewitnesses. The accused persons were the perpetrators of the crime. After the investigation, a chargesheet was filed in June 2002. During trial the purported eyewitnesses resiled from the statements made during investigation. Faulty and biased investigation as well as perfunctory trial were said to have marred the sanctity of the entire exercise undertaken to bring the culprits to books. By judgment dated 27.6.2003, the trial Court directed acquittal of the accused persons. Zahira appeared before the National Human Rights Commission stating that she was threatened by powerful politicians not to depose against the accused persons.
4.1 On 7.8.2003, an appeal was filed by the State against the judgment of acquittal before this Court. This Court upheld the acquittal of the accused persons. The NHRC moved the Supreme Court and its Special Leave Petition was treated as a petition under Article 32 of the Constitution of India, 1950. Zahira and one another NGO filed a Special Leave Petition challenging the judgment of acquittal affirmed by the Page 5 of 106 HC-NIC Page 5 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT High Court.
4.2 While allowing the appeals, the Supreme Court severely criticized the manner in which the entire trial was conducted and more particularly, the dubious role sought to have been played by the Public Prosecutor, namely, Shri Pandya, who was Incharge of the trial. The Supreme Court made the following observations in the reported decision, referred to above, in paras 33, 35, 36, 38, 42, 43, 56, 60, 64, 68, 69, 70, 71, 72 and 75:
"33. The principle of fair trial now informs and energises many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new and changing circumstances, and exigencies of the situation peculiar at times and related to the nature of crime, persons involved directly or operating behind, social impact and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system."
"35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process. not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing Page 6 of 106 HC-NIC Page 6 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in rational to proceedings, even if a fair trial is till possible, except at the risk of undermining the fair name and standing of the Judges or impartial and independent adjudicators."
"36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will be not correct to say that it is only the accused who must be fairly dealt with. That would be turning Nelson's eyes to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial."
"38. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and not by an isolated scrutiny."
"42. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Defects which illegimately affect the Page 7 of 106 HC-NIC Page 7 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT presentations of evidence in proceedings before the Courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair as noted above to the needs of the society. On the contrary, the efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance if not more, as the interests of the individual accused. In this Courts have a vital role to play."
"43. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Courts cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands to such prosecuting agency showing indifference or adopting an attitude of total aloofness."
"56. As pithily stated in Jennison v. Backer: (All ER p.1006d) "The law should not be seen to sit limply, while those who defy it go free and, those who seek its protection lose hope".
Courts have to ensure that accused persons are punished and that the might or authority of the State are not used to shield themselves or their men. It should be ensured that they do not wield such powers which under the Constitution has to be held only in trust for the public and society at large. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies. Courts have to deal with the same with an iron hand appropriately within the framework of law. It is as much the duty of the prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice. (See Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhobe)"
"60. Right from the beginning, the stand of the appellantsZahira was that the investigating agency was trying to help the accused persons and so was the public prosecutor. If the investigation was faulty, it was not the fault of Page 8 of 106 HC-NIC Page 8 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT the victims or the witnesses. If the same was done in a manner with the object of helping the accused persons as it appears to be apparent from what has transpired so far, it was an additional ground just and reasonable as well for accepting the additional evidence."
"64. It is no doubt true that the accused persons have been acquitted by the trial Court and the acquittal has been upheld, but if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorised witnesses, it is no acquittal in the eye of law and no sanctity or credibility can be attached and given to the socalled findings. It seems to be nothing but a travesty of truth, fraud on legal process and the resultant decision of courts coram non judis and non est. There is, therefore, every justification to call for interference in these appeals."
"68. If one even cursorily glances through the records of the case, one gets a feeling that the justice delivery system was being taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge. The investigation appears to be perfunctory and anything but impartial without any definite object of finding out the truth and bringing to book those who were responsible for the crime. The public prosecutor appears to have acted more as a defence counsel than one whose duty was to present the truth before the Court. The Court in turn appeared to be a silent spectator, mute to the manipulations and preferred to be indifferent to sacrilege being committed to justice. The role of the State Government also leaves much to be desired. One gets a feeling that there was really to seriousness in the State's approach in assailing the Trial Court's judgment. This is clearly indicated by the fact that the first memorandum of appeal filed was an apology for the grounds. A second amendment was done, that too after this Court expressed its unhappiness over the perfunctory manner in which the appeal was presented and challenge made. That also was not the end of the matter. There was a subsequent petition for amendment. All this sadly reflects on the quality of determination exhibited by the State and the nature of seriousness shown to pursue the appeal. Criminal trial should not be reduced to be the mock trials or shadow boxing or fixed trials. Judicial Criminal Administration System must be kept clean and beyond the reach of whimsical political wills or agendas and properly insulated from discriminatory standards or yardsticks of the type prohibited by the mandate of the Constitution."
"69. Those who are responsible for protecting life and properties and ensuring that investigation is fair and proper seem to have shown to real anxiety. Large number of people had lost their lives. Whether the accused persons were really assailants or not could have been established by a fair and impartial investigation. The modern day "Neros" were looking elsewhere when Best Bakery and innocent children and helpless women were burning, and were probably deliberating how the perpetrators of the Page 9 of 106 HC-NIC Page 9 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT crime can be saved or protected. Law and Justice become flies in the hands of these "wanton boys". When fences state to swallow the crops, no scope will be left for survival of law and order or truth and justice. Public order as well as public interest become martyrs and monuments."
"70. In the background of principles underlying Section 311 and Section 391 of the Code and Section 165 of the Evidence Act it has to be seen as to whether the High Court's approach is correct and whether it had acted justly, reasonably and fairly in placing premiums on the serious lapses of grave magnitude by the prosecuting agencies and the Trial Court, as well. There are several infirmities which are tell tale even to the naked eye of even an ordinary common man. The High Court has come to a definite conclusion that the investigation carried out by the police was dishonest and faulty. That was and should have been per se sufficient justification to direct a retrial of the case. There was no reason for the High Court to come to the further conclusion of its own about false implication without concrete basic and that too merely on conjecture. On the other hand, the possibility of the investigating agency trying to shield the accused persons keeping in view the methodology adopted and outturn of events can equally be not ruled out. When the investigation is dishonest and faulty, it cannot be only with the purpose of false implication. it may also be noted at this stage that the High Court has even gone to the extent of holding that the FIR was manipulated. There was no basis for such a presumptive remark or arbitrary conclusion."
"71. The High Court has come to a conclusion that Zahira seems to have unfortunately for some reasons after the pronouncement of the judgment fallen into the hands of some who prefer to remain behind the curtain to come out with the affidavit alleging threat during trial. It has rejected the application for adducing additional evidence on the basis of the affidavit, but has found fault with the affidavit and hastened to conclude unjustifiably that they are far from truth by condemning those who were obviously victims. The question whether they were worthy of credence, and whether the subsequent stand of the witnesses was correct needed to be assessed, and adjudged judiciously on objective standards which are the hallmark of a judicial pronouncement. Such observations if at all could have been only made after accepting the prayer for additional evidence. The disclosed purpose in the State Government's prayer with reference to the affidavits was to bring to High Court's notice the situation which prevailed during trial and the reasons as to why the witnesses gave the version as noted by the Trial Court. Whether the witness had told the truth before the Trial Court or as stated in the affidavit, were matters for assessment of evidence when admitted and tendered and when the affidavit itself was not tendered as evidence, the question of analysing it to find fault was not the proper course to be adopted. The affidavits were filed to emphasise the need for permitting additional evidence to be taken and for being considered as the evidence itself. The High Court has also found that Page 10 of 106 HC-NIC Page 10 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT some persons were not present and, therefore, question of their statement being recorded by the police did not arise. For coming to this conclusion, the High Court noted that the statements under Section 161 of the Code were recorded in Gujarati language though the witnesses did not know Gujarati. The reasoning is erroneous for more reason than one. There was no material before the High Court for coming to a finding that the person did not know Gujarati since there may be a person who could converse fluently in a language though not a literate to read and write. Additionally, it is not a requirement in law that the statement under Section 161 of the Code has to be recorded in the language known to the person giving the statement. As a matter of fact, the person giving the statement is not required to sign the statement as is mandated in Section 162 of the Code. Subsection (1) of Section 161 of the Code provides that the competent police officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case. Requirement is the examination by the concerned police officer. Subsection (3) is relevant, and it requires the police officer to reduce into writing any statement made to him in the course of an examination under this Section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. Statement made by a witness to the police officer during investigation may be reduced to writing. It is not obligatory on the part of the police officer to record any statement made to him. He may do so if he feels it necessary. What is enjoined by the Section is a truthful disclosure by the person who is examined. In the above circumstances the conclusion of the High Court holding that the persons were not present is untenable. The reasons indicated by the High Court to justify nonexamination of the eye witnesses is also not sustainable. In respect of one it has been said that whereabouts of the witness may not be known. There is nothing on record to show that the efforts were made by the prosecution to produce the witness for tendering evidence and yet the net result was "untraceable". In other words, the evidence which should have been brought before the Court was not done with any meticulous care or seriousness. it is true that the prosecution is not bound to examine each and every person who has been named as witness. A person named as a witness may be given up when there is material to show that he has been gained over or that there is no likelihood of the witness speaking the truth in the Court. There was no such material brought to the notice of the Courts below to justify non examination. The materials on record are totally silent on this aspect. Another aspect which has been lightly brushed aside by the High Court is that one person who was to be examined on a particular date was examined earlier than the date fixed. This unusual conduct by the prosecutor should have been seriously taken note of by the Trial Court and also by the High Court. It is to be noted that the High Court has found fault with DCP Shri Piyush Patel and has gone to the extent of saying that he has miserably failed to discharge his duties; while finding at the same time that police inspector Baria had acted fairly. The criticism according to Page 11 of 106 HC-NIC Page 11 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT us is uncalled for. Role of Public Prosecutor was also not in line with what is expected of him. Though a Public Prosecutor is not supposed to be a prosecutor, yet the minimum that was required to be done to fairly present the case of the prosecution was not done. Time and again, this Court stressed upon the need of the investigating officer being present during trial unless compelling reasons exist for a departure. In the instant case, this does not appear to have been done, and there is no explanation whatsoever why it was not done. Even Public Prosecutor does not appear to have taken note of this desirability. In Shailendra Kumar v. State of Bihar and Ors., it was observed as under:(SCC pp.65758, para 9) "In our view, in a murder trial, it is sordid and repulsive matter that without informing the police station officerincharge, the matters are proceeded by the court and by the APP and tried to be disposed of as if the prosecution has not led any evidence. From the facts stated above, it appears that accused wants to frustrate the prosecution by unjustified means and it appears that by one way or the other the Addl. Sessions Judge as well as the APP have not taken any interest in discharge of their duties. It was the duty of the sessions judge to issue summons to the investigating officer if he failed to remain present at the time of trial of the case. The presence of investigating officer at the time of trial is must. It is his duty to keep the witnesses present. If there is failure on part of any witness to remain present, it is the duty of the court to take appropriate action including issuance of bailable/nonbailable warrants as the case may be. It should be well understood that prosecution cannot be frustrated by such methods and victims of the crime cannot be let in lurch.""
"72. A somewhat an unusual mode in contract to the lapse committed by nonexamining victims and injured witnesses adopted by the investigating agency and the prosecutor was examination of six relatives of accused persons. They have expectedly given a clean chit to the accused and labeled them as saviors. This unusual procedure was highlighted before the High Court. But the same was not considered relevant as there is no legal bar. When we asked Mr. Rohtagi, learned counsel for the State of Gujarat as to whether this does not reflect badly on the conduct of investigating agency and the prosecutor, he submitted that this was done to show the manner in which the incident had happened. This is a strange answer. Witnesses are examined by prosecution to show primarily who is the accused. In this case it was nobody's stand that the incident did not take place. That the conduct of investigating agency and the prosecutor was not bona fide, is apparent and patent."
"75. Keeping in view the peculiar circumstances of the case, and the ample evidence on record, glaringly demonstrating subversion of justice delivery system no congeal and conducive atmosphere still prevailing, we direct that the retrial shall be done by a Court under the jurisdiction of Page 12 of 106 HC-NIC Page 12 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT Bombay High Court. The Chief Justice of the said High Court is requested to fix up a Court of competent jurisdiction."
5 The above referred paragraphs of the Supreme Court's judgment containing the remarks passed against Shri Pandya, according to the writ applicants, make him unfit and unsuitable to hold the post of the DGP and Pubic Prosecutor. According to the writ applicants, there is nothing on record to even remotely indicate that before appointing Shri Pandya as the DGP and Public Prosecutor, the District Magistrate, the Sessions Judge as well as the State Government considered the effect of such remarks passed by the Supreme Court. According to the writ applicants, fitness includes character, integrity, competence, knowledge and the like of a person to be so appointed. According to the writ applicants, the lack of effective consultation in the matter of present type could fall within the scope of judicial review.
● STANCE OF THE STATE GOVERNMENT:
6 In all the three writ applications, an affidavitinreply has been filed on behalf of the State of Gujarat duly affirmed by the Joint Secretary, Legal Department, Gandhinagar making the following averments:
"5. I say and submit that this petition has been preferred by the present petitioner under Article 226 of the Constitution of India. Hence, the petitioner must have to say and prove before this Hon'ble Court that his fundamental right which has been granted under the Constitution of India is infringed. In the present case, there is not averments to that effect that Page 13 of 106 HC-NIC Page 13 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT this fundamental right is affected pursuant to the appointment of respondent no.3. I say and submit that the present petition has no locus standi to challenge the appointment of respondent no.3 before this Hon'ble Court.
6. I say and submit that even the present petition had been filed as Special Criminal Application but as such there is no criminal law attracted to the issue hence, as it is an appointment of DGP & PP hence it would be rather a litigation in Civil nature. Even one Mr. Shakil Khan Sharif Khan Pathan had also filed a Writ Petition (PIL) no.125 of 2015 before this Hon'ble Court which is also filed under Article 226 and 227 of the Constitution of India and it was prayed by the petitioner to quash and set aside the appointment of respondent no.3 as DGP & PP, Vadodara by holding and declaring that it is contrary to mandatory provisions of law and is against the public interest at large and further prayed that the appointment of respondent no.3 is illegal, null and void. This writ petition came to be listed before the Hon'ble Division Bench (Coram : Hon'ble R.P. Dholaria, JJ) which came to be dismissed by order dated 02.07.2015. A copy of the order dated 02.07.2013 passed in Writ Petition (PIL) No.125 of 2015 is annexed herewith and marked as Annexure RI. Hence, the issue which has been raised by the present petitioner in this petition, prima facie, gone into by PIL bench and the Hon'ble Court has not interfered.
7. I say and submit that the contentions raised in the present Special Criminal Application are substantially similar which were raised in Writ Petition (PIL) no.125 of 2015. The deponent craves leave of this Hon'ble Court to place on record a copy of the said Writ Petition (PIL) no.125 of 2015 along with all its annexure as Annexure RII.
8. I say and submit that the respondent no.3 was appointed as DGP&PP by order dated 25.02.2002 for a period of one year and thenafter, he was again appointed as DGP&PP for a period of two years from 11.02.2003 to 26.02.2005. Hence, when this best bakery case was on trial the respondent no.3 was a DGP&PP of Vadodara district and as a PP he had appeared as a PP in the best bakery case. The respondent no.3 was again appointed by order dated 04.03.2005 for a period of one year thenafter by order dated 23.05.2006 he was appointed as DGP&PP was extended up to 03.03.2008.
9. I say and submit that as the tenure of appointment of respondent no.3 was over, he was relieved from DGP&PP office on 22.04.2008. Thenafter the Collector, Vadodara had given advertisement on 1.06.2008, in daily newspaper for appointment of DGP&PP and invited the applications from eligible candidates. Pursuant to this advertisement and after following due procedure as prescribed, by order dated 31.12.2009 one Mr. N.S. Shah was appointed as DGP&PP of Vadodara district for a period of two years i.e. upto 31.12.2011. Thenafter, the term of Mr. N.S. Page 14 of 106 HC-NIC Page 14 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT Shah was extended for one year i.e. up to 31.12.2012. Mr. N.S. Shah had remained in this office as Incharge DGP&PP for the period between 01.04.2013 to 15.04.2013.
10. I say and submit that as the post of DGO & PP, Vadodara was vacant an advertisement was given by the Collector, Vadodara and the applications had been invited for the said post on 31.05.29013. Pursuant to this advertisement dated 31.05.2013, in all 15 advocates had applied for the post of DGP & PP. For the post of DGP & PP the qualification of necessary, as per Rule 5(1) of Law Officers Rules. The Rules 5(1) is quotes hereinbelow:
"5. Qualifications and eligibility:
1) No person shall be qualified to be appointed as the Public Prosecutor in the High Court or the District Court, the Government Pleader in the High Court, District Court or other Court or Tribunal unless
(a) he has at least ten years standing as an advocate of the High Court or District Court of Gujarat;
(b) he is not more than 60 years of age; and
(c) he is an income tax assessee for a period of at five years prior to his appointment."
As per this rule the candidate must have ten years experience as an advocate and he should be below 60 years and also income tax assessee for at least 5 years prior to this appointment.
11 I say and submit that as per the advertisement dated 31.05.2013 the cutoff date for submitting the application was 30.06.2013 and total 15 applications have been received and hence, as per Section 24(4) the District Magistrate & District Judge had taken interview of those applicants on 29.07.2013 and made a panel list of selected five candidates. A copy of the selected panel list is annexed herewith and marked as Annexure RIII. In this panel list the respondent no.3's name was also there with other four candidates. This panel list was forwarded by the District Magistrate to the Secretary, Legal Department which has been received by the Legal Department on 07.08.2013. After receiving the panel list and after going through the record, it was found by the Legal Department that the documents related to the income tax assessment are not there, with this file and hence by letter dated 19.02.2014, those documents were called for by the Legal Department from the District Collector Office. The submissions have been put on the files and it was forwarded to the State Government for further proceedings. Thenafter as there was submissions by the Legal Department that the documents related to the Income Tax papers are not available on record the State Page 15 of 106 HC-NIC Page 15 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT Government had also taken view that these papers should be called for and thenafter, file should be resubmitted to the State Government. This note has bee made by the State Government on 09.04.2015 and file was given back to the Legal Department for compliance. During this period the Income Tax papers of the candidates have already been received by the Legal Department from the District Collector, Vadodara on 01.04.2015. Hence, again the file was resubmitted to the State Government for further proceedings on 16.04.2015. The State Government after considering the documents which are on record and submissions which have been put up by the Legal Department had selected respondent no.3 as ADP & PP of Vadodara district. Hence by order dated 07.05.2015 respondent no.3 was selected as DGP & PP of Vadodara district.
12. I say and submit that the allegations which have been leveled by the present petitioner that the procedure for appointment of the respondent no.3 as DGP & PP is not followed is not true as stated hereinabove as per the provisions of law the entire proceedings have been followed by the State Government and thenafter the appointment of respondent no.3 was made. Even otherwise it is not stated in the present petition by the petitioner before this Hon'ble court that how the respondent no.3 is not qualified for the post of DGP & PP. Even otherwise as per Rule 5(1) of Law Officers rules the respondent no.3 is qualified for the same post."
7 STANCE OF THE RESPONDENT NO.3 i.e. THE APPOINTEE:
The respondent No.3 has filed an affidavitinreply inter alia stating as under:
"(a) I respectfully state that a similar petition as Public Interest Litigation was filed as Writ Petition (PIL) No.125 of 2015 challenging the propriety and validity of appointment of present respondent No.3, more or less on a same set of facts and on a similar ground, which was heard by the Hon'ble Division Bench and by an order dated 02.07.2015, the Hon'ble Division Bench and by an order dated 02.07.2015, the Hon'ble Division Bench has dismissed the same. A copy of the order dtd. 02.07.2015 in WP (PIL) No.125/2015 is annexed hereto and marked as AnnexureR1 to the reply.
(b) Hence, I respectfully submit that in view of the rejection of said petition by Division Bench, the present petition is also required to be rejected in the interest of justice.
(c) It is most respectfully submitted that the petitioner does not have any locus to file the aforesaid petition as he has not shown any cause whatsoever for any infringement of the fundamental rights guaranteed by Page 16 of 106 HC-NIC Page 16 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT Constitution, to the adverse interest of the present petitioner nor in any petitioner is likely to be affected, in a matter of appointment of respondent No.3 as D.G.P. and Public Prosecutor of Vadodara and therefore present petition filed by the petitioner is not maintainable as per the established provisions of law.
(d) I state that the petitioner has ventilated himself as a social worker in para 2 of the petition and attempted to show that the present petition as if is filed for public purpose. I hereby invite the attention of the Hon'ble Court that the petitioner appears to be busybody and habitual to file black mailing complaints against the Government Officers and judicial officers.
The petitioner is in the nature to harass the officers if such officer is not concurred with his intention or with his oblique motive. I herewith produce the copy of certified report submitted by the Police Inspector, City Police Station, submitted to the Criminal Court, Vadodara dated 16/2/2013 as Annexure - R/2, wherein the entire history of the present petitioner has been reported to the Hon'ble Criminal Court at Vadodara.
Sr. FIR No. Complainant Sections
No.
1 M Case No.61/99 Kashinath Babubhai 464, 465, 467, 471 114
dtd.16/4/99 Yadav of IPC before First Court
Vadodara
2 Criminal Case Kaniyalal Nanakram 406, 415, 420, 506(2)
No.3221/96 Relvani and 114 of IPC
dd.2/9/96
3 Cr.P.C. 202 Inq. Anajnaben 467, 468, 471 and 114
No.0/5/06 Ashokbhai Santwani of IPC before Chief
Court, Sayanjiganj
Police Station
4 Inq. No.0/13/01 Kailash @ Sony 506, 504, 342 of IPC
Kaniyalal Jagyasi before First Court
Vadodara City
5 Vadi I C.R. No.52/06 Santosh G. Lachchu Bhuriya
as per provisions of Sankhvani declared in the Court
section ; 15(2) of that he filed application
Contempt of Court Act before the Hon'ble High
Court for direction of
remand and bail, but
the said application was
dismissed. (First Court
Vadodara)
6 Criminal Case Santosh G. 500, 501A,B, 502 and
No.7302/07 dtd. Sukhwani 34 of IPC before Second
Page 17 of 106
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R/SCR.A/3734/2015 CAV JUDGMENT
17/04/07 Court Vadodara City
7 Criminal Case Santosh G. 500, 501A,B, 502 and
No.8453/07 dtd. Sukhwani 34 of IPC before Second
23/04/07 Court Vadodara City
8 Criminal Case Kishanchand 500, 34 and 114 of IPC
No.18155/07 Ishardas Nathani before First Court
Vadodara City
9 Criminal Case Jagdish K. Ramani 500, 506 and 34 of IPC
No.16773/07 before Second Court
Vadodara City
10 Criminal Case 15(2) of Contempt of
No.1232/07 Court Act before District
Court Vadodara.
Sr. FIR No. Complainant Sections
No.
1 Application Vedprakash Melumal 406, 420, 488, 451,
dtd.30/10/2005 Arya 465, 467, 468, 471,
384, 506(2), 120(B) of
IPC
2 Application Vedprakash Melumal 406, 420, 488, 451,
dtd.10/11/2005 given Arya 465, 467, 468, 471,
to 'A' Division 384, 506(2), 120(B) of
IPC
3 Application Vedprakash Melumal 107, 120B, 166, 167,
dtd.19/10/2006 given Arya and Police 177, 192, 196, 197, to CID crime Commissioner / 199, 200, 201, 211, officers 220, 341, 342, 465, 466, 471, 474, 504, 506(2) of IPC Resolution has been passed against Laxman @ Lachchu Bhuriyo Rupchand Meghvani by Bar Association Vadodara.
Sr. FIR No. Complainant Sections
No.
1 19/05/07 For filing false Police Commissioner
complaint against Vadodara City
harassing the
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R/SCR.A/3734/2015 CAV JUDGMENT
people/businessmen
2 13/03/08 For legally search of Police Commissioner
complaint filed Vadodara City
before Panigate
Police Station
(e) I state that by way of present petition the petitioner has challenged the propriety and validity of the appointment of respondent No.3 as D.G.P. and Public Prosecutor.
(f) It is most respectfully submitted that the petitioner has prayed for a discretionary relief which is in the nature of Public Interest and the said petition is filed when the W.P. (PIL) being 125/2015 did come to be dismissed by this Hon'ble Court and hence a writ of quowarranto would not lie once that the issue at hand is already decide by the Division Bench of this Hon'ble Court.
(g) It is most respectfully submitted that I am holding the Sanad of Advocate of Bar Council of Gujarat since from 1986 and thereby my tenure as a practicing lawyer is about 29 years.
(h) I state that I was selected as Addl. Public Prosecutor and Asstt. Government Pleader in the year 1996 and appointed as such in the year 1997 and I had worked on the said post upto 2002, and during the said period in last two years I was holding the charge of DGP and Public Prosecutor of Vadodara district.
(i) It is most respectfully submitted that I was thereafter appointed as DGP and PP by order dated 25/2/2002 for a period of one year and thereafter, I was again appointed as DGP and PP for a period of two years from date 11/2/2003 to 26/2/2005.
(j) I state that I was reappointed as DGP and PP by the respondent State Government by order dated 4/3/2005 for a further period of one year. I further state that there after also I was again appointed as DGP and PP by the respondent authority by order dated 23/5/2006 and the said appointment was continued up to 3/3/2008. Thus, even after the said judgment of Hon'ble S.C. passed in a best bakery case, I was repeatedly appointed as a PP and DGP without any objections from any of the section of public at large.
(k) I state that hundreds of cases have been conducted by me and nothing as been found adverse against me by the State Government, nor any Investigating agency nor by any accused nor by anybody and nobody had raised any adverse finger against me with regards to the discharge of my duty and function as DGP and PP.
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(l) Thus, it is entirely false facts conveyed by the petitioner that I was removed from the post of PP and DGP after the judgment of Hon'ble S.C. in a best bakery case. Hence, patently the petition is filed on the basis of false facts, the event which never took place had been cited as a ground for seeking the prayer in the petition, and therefore, the petition deserves to be dismissed.
(m) I state that some other senior persons who selected in the year 2010 as PP and DGP who has been relieved in the year 2013 and thereafter the said post was vacant. The respondent authority thereupon published the advertisement in the daily newspaper as well as on the notice Board of District Court as well as on the notice board of Collector, inviting the application for the said post. It appears that some advocates had applied for the said post pursuant to the said advertisement and I had also applied for the said post. All such advocates including myself, who applied for the said post, were called for the interview by the respondent District Magistrate and the respondent D.M. appears to have made effective consultation with the Hon'ble District and Sessions Judge and thereupon the panel of names of the persons appears to have been prepared for a persons to whom the respondent D.M. considered to be appointed as DGP and P.P.
(n) It is submitted that my name was included in the panel on merits, as I am satisfying the statutory eligibility criteria couple with a 29 years experience as lawyer, coupled with an experience as a A.P.P. and P.P. for a period of about more than 11 years and therefore, my appointment is absolutely within the four corner of law, which warrants no interference of this Hon'ble Court in the interest of justice.
(o) I state that I am holding the eligibility criteria as per the provisions of Section 24 of Cr.P.C. read with provisions of Rule 5(1) of Law Officers Rule, namely;
(1) 10 years standing as an advocate of the district court of Gujarat, (2) not attained the age of 60 years and (3) I am Income Tax assessee for a period of at least five years prior to my appointment.
(p) Thus, my appointment as DGP and PP does not lack the eligibility criteria nor the same is contrary to the statutory Rules, nor a procedure laid down under Section 24 of Cr.P.C. has not been followed. Therefore, the jurisdiction to issue a quo warranto should not be exercised by this Hon'ble Court in view of settled law laid down by the Hon'ble Supreme Court.
(q) I state that the State Government had never lost the confidence from Page 20 of 106 HC-NIC Page 20 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT me even after the remark of the Hon'ble Supreme Court in the best bakery case and so far as suitability is concerned, the same was assessed in my favour even after the judgment delivery by the Hon'ble Supreme Court.
(r) In the aforesaid background of facts the said petition deserves to be dismissed with exemplary costs.
I most respectfully beg to raise the following preliminary contentions with regard to the maintainability of this petition:
I. I state that so far as the ground pertaining to a violation of Section 24 of the Cr.P.C. and Law Officers Rules are concerned, it is stated that the provisions of the said Law and Rules have been strictly complied with and there is no violation of any of the provisions of Section 24 nor of any of the Rules of Law Officers Rules. II. I state that in the judgment of the Hon'ble Supreme Court, nowhere it is stated that the respondent no.3 has been disqualified and debarred either temporary or permanently, to be a D.G.P. and Public Prosecutor, if the respondent NO.4 otherwise eligible under the provisions of law and/or the Rules, to be selected as D.G.P. and Public Prosecutor.
III. It is most respectfully submitted that even after the said judgment the respondent no.3 has continued to be in office till 2008 and none has raised any objection whatsoever.
IV. It is pertinent to note that the observations made by the Hon'ble Supreme Court, in no strength of imagination would adversely affect of the eligibility criteria of the respondent no.3."
● SUBMISSIONS ON BEHALF OF THE WRIT APPLICANTS:
8 Mr. B. B. Naik, the learned senior advocate appearing with Shri R.J. Goswamy in the Special Criminal Application No.3734 of 2014, Mr. Mihir J. Thakore, the learned senior advocate appearing with Mr. Salil Thakore in the Special Criminal Application No.5372 of 2015 and Mr. Virat G. Popat, the learned advocate appearing in the Special Criminal Application No.4360 of 2015 for the respective writ applicants made the following submissions:
Page 21 of 106
HC-NIC Page 21 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT (1) It is an express as well as implied statutory requirement of Section 24 of the Cr.P.C. that the person is fit and suitable for being appointed as the Public Prosecutor. Fitness and suitability is the statutory eligibility criteria. The District Magistrate and the Sessions Judge are under a legal obligation to thoroughly examine the issue of fitness and suitability of the candidates before placing them in the panel list.
(2) It was vociferously submitted that the socalled consultative process was nothing, but an eyewash. It was submitted that in fact, there was no consultation at all. It was submitted that giving marks to each of the candidates, after the completion of the interview, could hardly be termed as an effective consultation.
(3) It was submitted that the requirements of "fitness" and "suitability" being the statutory requirements of Section 24 of the Cr.P.C.
the breach of the same would amount to breach of the statutory rules. It was submitted that after the names of the candidates were forwarded by the District Magistrate to the State Government, the State Government was also obliged to undertake some independent inquiry or exercise before selecting a particular person for being appointed as the Public Prosecutor. The learned counsel submitted on the basis of the materials on record that without any further inquiry or exercise, the Law Minister put an endorsement on the file that Shri Pandya be appointed as the Page 22 of 106 HC-NIC Page 22 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT Public Prosecutor. The learned counsel submitted that an independent inquiry and some exercise is required at the end of the State Government before finalizing a particular name because when a panel is prepared by the District Magistrate in consultation with the Sessions Judge, all the persons named therein in the panel are fit to be appointed. If, according to Section 24, Cr.P.C., a panel of names of persons, who in the opinion of the District Magistrate are fit to be appointed as Public Prosecutor, is to be forwarded to the State Government, then the State Government owes an obligation to consider who is the fittest amongst the candidates named in the panel. The State Government cannot according to its own sweet will and wish pickup a particular person of its choice and appoint him as the Public Prosecutor.
(4) It was further submitted that the marksheet alone can never be construed as an "opinion" under Section 24 of the Cr.P.C. and the giving of marks alone can never amount to formation of an "opinion". 9 The contentions could be summarized as under:
(a) Nonconsideration of relevant material
(b) No proper and effective consultation or deliberation
(c) No written opinion as to fitness and suitability and absence of communication to the State Government on the aspect of "suitability"
and "fitness".
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(d) There is nothing on record that an opinion as to suitability and fitness was formed by the District Judge in consultation with the Sessions Judge.
(e) Preparing a panel of names only on the basis of the marking system vitiates the entire decision making process and runs contrary to Section 24 of the Cr.P.C.
(f) If at all the marking system is to be adopted, the same should be based on some objective criteria. The stance of the State Government that it thought fit to appoint Shri Pandya as the Public Prosecutor as he had secured the highest marks goes to show that the State mechanically appointed Shri Pandya, more particularly, when in the past, the State itself had rejected Shri Pandya on the ground that he was not fit to be appointed as the Public Prosecutor.
(g) The decision to appoint Shri Pandya as the Public Prosecutor was against the public interest and the same has shaken the confidence of the people in the justice delivery system.
10 The learned counsel appearing for the writ applicants placed reliance on the following decisions:
(1) Harlal Singh Chauhan and others v. State of U.P. [(1993) 3 SCC 552 (para 10)] (2) State of U.P. and another v. Johari Mal [(2004) 4 SCC 714 (paras 39, 40, 43 to 46)] Page 24 of 106 HC-NIC Page 24 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT (3) Central Electricity Supply Ulitity of Odisha v. Dhobei Sahoo and others [(2014) 1 SCC 161] (4) Centre for PIL and another v. Union of India and another [(2011) 4 SCC 1 (paras 2, 36, 37, 42, 43, 45)] (5) State of U.P. v. Johrimal, AIR 2004 SC 3800 (6) Mundrika Prasad Sinha v. State of Bihar [AIR 1979 Sc 1981 (para 15] (7) Kumari Shrilekha Vidyarthi v. State of U.P. [AIR 1991 SC 537 (para 12, 1420] (8) A. Mohambaram v. M.A. Jayavelu, [AIR 1970 Madras 63 (para 5, 7 and 10)] (9) Vijay Shakar Mishra v. State of U.P. [1999 Cri. Law Journal 521 (para 45, 87)] (10) N. Kannadasan v. Ajoy Ghose [(2009) 7 SCC 1].
11 SUBMISSIONS ON BEHALF OF THE STATE GOVERNMENT:
11.1 Mr. Kamal Trivedi, the learned Advocate General appearing for the State vehemently opposed the writ applications and submitted that a writ of quo warranto cannot be prayed for as a matter of right. He submitted that a writ of quo warranto can be issued by the Court in exercise of its power under Article 226 of the Constitution of India only if it is pointed out that the person is an usurper of the public office. Such person could be said to be the usurper of the public office only if he is not otherwise qualified or eligible for being appointed to the post.
11.2 Mr. Trivedi submitted that the respondent No.3, by any stretch of Page 25 of 106 HC-NIC Page 25 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT imagination, cannot be said to be an usurper of the public office. He was included in the panel list along with the others and being found meritorious the most, the State Government thought fit to appoint him as the Public Prosecutor.
11.3 Mr. Trivedi submitted that there is a vital difference between the judicial review and merit review. The consultation forms part of the procedure to test the fitness of a person to be appointed as the Public Prosecutor under Section 24 of the Cr.P.C. Once there is a consultation, the content of that consultation is beyond the scope of judicial review.
Mr. Trivedi submitted that "eligibility" is an objective factor. When "eligibility" is to be in question, it could fall within the judicial review. However, the question as to who should be appointed, which essentially involved the aspect of "suitability", stands excluded from the purview of judicial review.
11.4 Mr. Trivedi vehemently submitted that the challenge in all the three writ applications is to the suitability of the respondent No.3 appointed as the Public Prosecutor. He submitted that in a writ application for a writ of quo warranto, the Court should not go into the issue of suitability or rather it is impermissible in law for the Court to consider the same.
Page 26 of 106 HC-NIC Page 26 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT 11.5 Mr. Trivedi submitted that so far as the observations of the Supreme Court are concerned, they were made way back in the year 2004, and that too, in connection with one particular trial. Such remarks passed by the Supreme Court would not entail disqualification from being appointed as the Public Prosecutor for all times to come. Mr. Trivedi submitted that it is true that the Supreme Court did make certain observations against the respondent No.3 so far as his conduct as the Public Prosecutor in the controversial trial is concerned, but that, by itself would not make him "unfit" or "unsuitable" for being appointed as the Public Prosecutor after a period of eleven years. 11.6 Mr. Trivedi submitted that the decision of the Supreme Court is of the year 2004, even thereafter, the respondent No.3 had continued to function as the Public Prosecutor upto 23.04.2008 and that too, pursuant to a fresh appointment dated 04.03.2005. 11.7 Mr. Trivedi laid much emphasis on the fact that all the three writ applications lack in bona fide and could not be said to have been preferred in good faith. Mr. Trivedi further pointed out that the appointment of the respondent No.3 was made a subject matter of challenge before this Court by way of a Public Interest Litigation and such petition was ordered to be rejected by a Division Bench vide order dated 02.07.2015 passed in Writ Application (PIL) No.125 of 2015. Page 27 of 106 HC-NIC Page 27 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT Thus, according to Mr. Trivedi, the three writ applications herein are not maintainable as they would be hit by the doctrine of res judicata. 11.8 Mr. Trivedi submitted that in such circumstances, referred to above, all the three writ applications deserve to be rejected. 11.9 Mr. Trivedi placed reliance on the following decision in support of his submissions:
(1) Rajiv Ranjan Singh v. Union of India [2006 (6) SCC 613 (paras 5, 50, 51, 52)] (2) State of Uttar Pradesh v. Rakesh Kumar Keshari [2011 (5) SCC 341 (paras 14 to 17 and 35 to 37)] (3) Registrar General, High Court of Madras v. R. Gandhi and others [(2014) 11 SCC 547 (paras 7 to 9 and 24 to 25) (4) Central Electricity Supply Utility of Odisha v. Dhobei Sahoo and others [(2014) 1 SCC 161 (paras 21 and 47) (5) Hari Bansh Lal v. Sahodar Prasad Mahto and others [(2010) 9 SCC 655] (6) The University of Mysore v. C.D. Govinda Rao and another [AIR 1965 SC 491 (paras 6 and 7)] ● SUBMISSIONS ON BEHALF OF THE APPOINTEE:
12 Mr. P.R. Thakkar and Mr. Shalin Mehta, the learned senior advocates appearing for the appointee i.e. the respondent No.3 vehemently opposed the writ applications and submitted that they deserve to be rejected as they lack in bona fide and cannot be said to Page 28 of 106 HC-NIC Page 28 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT have been preferred in good faith. The learned counsel submitted that the observations of the Supreme Court in the case of Zahira Sheikh (supra) so far as the appointee is concerned could hardly be termed as adverse remarks. It was submitted that such remarks would not render the respondent No.3 "unfit" and "unsuitable" for the post. It was submitted that it is a settled position of law that no man should be condemned unheard. The Supreme Court made certain disparaging remarks without any notice to the respondent No.3, and if that be so, then it should be construed that the Supreme Court never wanted to condemn the respondent No.3, because if that would have been so, then the Supreme Court would have given an opportunity to the respondent No.3 to make good his case as regards his role as the Public Prosecutor. Therefore, according to the learned counsel, the remarks of the Supreme Court were in connection with one particular case and the same would not be a certificate for all times to come that the respondent No.3 should not be appointed to the post of the Public Prosecutor. It was submitted that the litigation of the present type should not be encouraged considering the criminal history of one of the petitioners. The details of the history has been stated in the affidavitinreply which goes to show that they are just name lenders. Mr. Thakkar as well as Mr. Mehta placed reliance on the following decisions in support of their submissions:
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HC-NIC Page 29 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT (1) Vinoy Kumar v. State of U.P. and others [(2001) 4 SCC 734] (2) Hari Bansh Lal v. Sahodar Prasad Mahto and others [(2010) 9 SCC 655] (3) Mahesh Chandra Gupta v. Union of India and others [(2009) 8 SCC 273] (4) Janata Dal v. H.S. Chaudhary and others [(1992) 4 SCC 305] (5) Om Prakash Chautala v. Kanwar Bhan and others [(2014) 5 SCC 417] (6) Awani Kumar Upadhyay v. High Court of Judicature of Allahabad and others [(2013) 12 SCC 392]
13 In such circumstances, referred to above, it is prayed that there being no merit in any of the writ applications, they be rejected with costs.
● ANALYSIS:
14 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the appointment of Shri Pandya as the Public Prosecutor could be said to be in accordance with the provisions of law and the rules governing such appointment.
15 It appears from the materials on record that the respondent No.3 has not been appointed as the Public Prosecutor for the first time. In the past also, he was appointed and the details of his appointment and Page 30 of 106 HC-NIC Page 30 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT tenure is as under:
Sr. Date of Date on which the Time span Post of the
No. Appointment term expired Respondent
No.3
1 27.02.1997 26.02.2002 5 years A.PP.
01.06.2000 26.02.2002 2 years Incharge DGP &
PP
2 27.02.2002 26.02.2003 1 year DGP & PP
3 27.02.2003 26.02.2003 2 years DGP & PP
4 '04.03.2005 '03.03.2008 3 years DGP & PP
Extended till 23.04.2008 i.e. completion of the term 5 '07.05.2015 31.12.2017 For a period DGP & PP of 2 years ● WRIT OF QUO WARRANTO:
16 Quo warranto is a judicial remedy against an intruder or usurper of an independent substantive public office or franchise or liberty. The usurper is asked 'by what authority' (quo warranto) he is in such office, franchise or liberty. A writ of quo warranto thus poses a question to the holder or occupier of a public office, and that question is : "Where is your warrant of appointment by which you are holding this office ?" If the answer is not satisfactory, the usurper can be ousted by this writ.
17 The writ of quo warranto is an ancient Common Law remedy of a prerogative nature. It was a writ of right used by the Crown against a person claiming any office, franchise or liberty to inquire by what authority he was in the office, franchise of liberty. In case his claim was not well founded or there was nonuse, neglect, misuse or abuse of the Page 31 of 106 HC-NIC Page 31 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT office, he was to be ousted.
18 Quo warranto is a writ that lies against a person who usurps any franchise, liberty or office.
In Corpus Juris Secundum, quo warranto is defined thus;
"Quo warranto is a proceeding to determine the right to the exercise of a franchise or office and to oust the holder if his claim is not well founded, or if he has forfeited his right."
Blackstone, states : "The ancient writ of quo warranto was in the nature of a writ of right for the King against any office, franchise or liberty of the Crown to inquire by what authority he supported his claim, in order to determine the right."
Quo warranto is a remedy or procedure whereby the State inquires into the legality of the claim which a party asserts to an office or franchise, and to oust him from its enjoyment if the claim be not well founded, or to have the same declared forfeited and recover it, if, having once been rightfully possessed and enjoyed; it has become forfeited for misuser or nonuser. 19 In B.R. Kapur v. State of T.N. [(2001) 7 SCC 231 : AIR 2001 SC 3435], after referring to Halsbury's Laws of England , Words and Phrases and leading decisions on the point, it was observed that a writ of quo warranto is a writ which lies against the person who is not entitled to hold an office of public nature and is only a usurper of the office. Quo warranto is directed to such person who is required to show by what Page 32 of 106 HC-NIC Page 32 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT authority he is entitled to hold the office. The challenge can be made on various grounds, including the ground that the possessor of the office does not fulfill the required qualifications or suffers from any disqualification, which debars him to hold such office. It was further stated that on being called upon to establish valid authority to hold a public office, it such person fails to do so, a writ of quo warranto shall be directed against him. It shall be no defence by the holder of the office that the appointment was made by the competent authority, who under the law is not answerable to any court for anything done in performance of duties of his office. The question of fulfilling legal requirements and qualifications necessary to hold a public office would be considered in the proceedings independent of the fact as to who made the appointment and the manner in which the appointment was made. 20 Any person may challenge the validity of an appointment of a public office, whether any fundamental or other legal right of his has been infringed or not. But the court must be satisfied that the person so applying is bona fide and there is a necessity in public interest to declare judicially that there is an usurpation of public office. If the application is not bona fide and the applicant is a mere pawn or a man of straw in the hands of others, he cannot claim the remedy. Though the applicant may Page 33 of 106 HC-NIC Page 33 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT not be an aspirant for the office nor has any interest in appointment, he can apply as a private relator, or an ordinary citizen. 21 In Dr. B. Singh vs. Union of India and Others, (2004) 3 SCC 363, Supreme Court held that only a person who comes to the Court with bonafides and public interest can have locus. Coming down heavily on busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity, the Supreme Court at para 14 of the report held as under :
"The court has to be satisfied about: (a) the credentials of the applicant;
(b) the prima facie correctness or nature of information given by him; and
(c) the information being vague and indefinite. The information should show gravity and seriousness involved. Court has to strike a balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and
(ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the executive and the legislature. The court has to act ruthlessly while dealing with imposters and busybodies or meddlesome interlopers impersonating as public spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of pro bono publico, though they have no interest to the public or even of their own to protect."
22 In my opinion, one of the most important conditions which the person seeking a writ of quo warranto must satisfy is that the office in question is a public office and the same is of a public nature. If this Page 34 of 106 HC-NIC Page 34 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT condition is satisfied, only in such a case the Court may proceed further to inquire as to whether the appointment to the public office is really in violation of statutory rules and regulations or any provision of law. To examine this question, I need to understand the true meaning of the word "public office". "Public Office" has not been defined under the Cr.P.C. "Public Office" as explained by the Major Law Lexicon 4th Edition 2010 is as under :
"Public Office" defined. 556 V. c.40 S.4 A position whose occupant has legal authority to exercise a government's sovereign powers for a fixed period.
Position involving exercise of governantal functions [S.6(f), T.P. Act (4 of 1882)]; an office where public business is transacted. [O.XIII, R.5(2), CPC (5 of 1908)].
A public office is the right, authority and duty created and conferred by law, by which an individual is vested with some portion of the sovereign functions of the government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed by law. It implies a delegation of a portion of the sovereign power. It is a trust conferred by public authority for a public purpose, embracing the ideas of tenure, duration, emoluments and duties.. .. The determining factor, the test, is whether the office involves a delegation of some of the solemn functions of government, either executive, legislative or judicial, to be exercised by the holder for the public benefit. (72 CWN 64, Vol.72). [Extraordinary Legal Remedies, by Ferris as referred in V.C. Shukla v. State (Delhi Adm.), (1980) Supp SCC 249, 266 para 26] In Re Miram's (1891) IQB 594 Cave. J,. Said "to make the Office a Public Office the pay must come out of national and not out of local funds, the Office must be public in the strict sense of that term. It is not enough that the due discharge of the duties should be for the public benefit in a secondary and and remote sense."
Page 35 of 106 HC-NIC Page 35 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT 23 According to the Black's Law Dictionary 6th Edition, the term "Public Office" is explained as under :
"Public Office. Essential characteristics of "public office" are (1) authority conferred by law, (2) fixed tenure of office, and (3) power to exercise some portion of sovereign functions of government; key element of such test is that "officer" is carrying out sovereign function. Spring v. Constantino, 168 Conn. 563, 362 A.2d 871, 875. Essential elements to establish public position as "public office" are position must be created by constitution, legislature, or through authority conferred by legislature, portion of sovereign power of government must be delegated to position, duties and powers must be defined, directly or impliedly, by legislature or through legislative authority, duties must be performed independently without control of superior power other than law, and position must have some permanency and continuity. State ex rel. Eli Lilly and Co. v. Gaertner, Mo.App., 619 S.W. 2D 761. 764.
24 Winfield on pages 463 to 478 of Volume LXI of the Law Quarterly Review. On page 464 the learned author poses the question, what is a "Public Office" and proceeds, "Setting aside statutory definitions of interpretations thereof, two judicial explanations are as follows :
In 1828, Best, C.J. described a Public Officer as "every one who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the Crown or otherwise." In 1914, Lawrence, J. said : "A public officer is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public." Best, C.J. lays too much emphasis on remuneration of some sort, for some public officers discharge their duties gratuitously; e.g. the LordLieutenant of a country or a Justice of the Peace; and both definitions use the very word which they purport to explain. However, the chief characteristics of a public office seem to be that it is a post the occupation of which involves the discharge of duties towards the community or some section of it and that usually those duties are connected with Government, whether central or local."
The author repeats these views in his text book of the Law of Tort, on page 614 of the third edition;Page 36 of 106
HC-NIC Page 36 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT "The chief characteristics of a 'Public Office' (apart from any statutory definition) are that it is a post the occupation of which involves the discharge of duties towards the community or some section of it, whether the occupier of the post is or is not remunerated."
20. The following passage from page 427 of Volume IV Burrows is also of interest :
To make the office a public office, the pay must come out of national and not out of local funds, and the office must be public in the strict sense of that term. It is not enough that the due discharge of the duties of the office should be for the public benefit in a secondary and remote sense". "A public office includes the holding of a commission in the territorial Army, or in any other of the armed forces of the Crown."
21. Reference may also be made to the passage on pages 146 and 147 of Volume 11 of Halsbury's Laws of England, Simonds edition.
"The duties of the office must be of a public nature. Thus, an information lay against a privy councilor, because, membership of the Privy Council constitutes the holding of an office of a public nature."
● WHETHER A PUBLIC PROSECUTOR HOLDS A "PUBLIC OFFICE":
25 Public prosecutor holds a "Public Office". The primacy given to him under the Scheme of Cr. P.C. has a "special purpose". Certain professional, official obligations and privileges are attached to his office. His office may also be termed as an office of profit as he remains disqualified to contest the election so long he holds the office though permanency is attached to the office and not to the term of his office. His duties are of public nature. He has an "independent and responsible character". He holds the public office within the scope of a "quo warranto proceedings". Prosecutor is not a part of investigating agency but is an "independent statutory authority". He performs statutory duties and functions. He holds an office of responsibility as he has been enclothed with the power to Page 37 of 106 HC-NIC Page 37 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT withdraw the prosecution of a case on the directions of the State Government (vide Mahadeo v. Shantibhai (1969) 2 SCR 422; Kanta Kathuria v. Manak Chand Surana, AIR 1970 SC 694; Madukar G. E. pankaker v. Jaswant Chobbildas Rajani AIR 1976 SC 2283; Mundrika Prasad Sinha v. State of Bihar, AIR 1979 SC 1871;K.C. Sud v. S.G. Gudimani, (1981) 2 Cr. L.J. 1779; Mukul Dalal v. Union of India, (1988) 3 SCC 144;Hintendra Vishnu Thakur v. State of Maharashtra, AIR 1994 SC 2623; Rabindra Kumar Nayak v. Collector, Mayurbhanj, Orissa, AIR 1999 SC 1120 and State of U.P. v. Johrimal, AIR 2004 SC 3800 : (2004 All LJ 2650).
25.1 The Public Prosecutor under Cr.P.C. has a special status, and his is a Statutory appointment. Under some of the provisions made in the Code, he receives special recognition.
● STATUTORY PROVISIONS:
26 Before adverting to the rival submissions canvassed on either side, I deem it necessary to look into the few relevant provisions of the law and the rules governing the appointment of a person as the Public Prosecutor.
26.1 Section 2(u) of the Cr.P.C. defines the "public prosecutor" as under:
"pleader", when used with reference to any proceeding in any Court, means a person authorised by or under any law for the time being in force, to practise in such Court, and includes any other person appointed with the permission of the Court to act in such proceeding;Page 38 of 106
HC-NIC Page 38 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT 26.2 Section 24 of the Cr.P.C. provides for the Public Prosecutors, which reads as under:
"24. Public Prosecutors (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court,appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.
(2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district, or local area.
(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district:Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.
(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under subsection (4).
(6) Notwithstanding anything contained in subsection (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre :
Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under subsection (4).Page 39 of 106
HC-NIC Page 39 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT [Explanation.For the purposes of this subsection,
(a) "regular Cadre of Prosecuting Officers" means a Cadre of Prosecuting Officers which includes therein the post of a Public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutor, by whatever name called, to that post;
(b) "Prosecuting Officer" means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code.] (7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under subsection (1) or subsection (2) or subsection (3) or subsection (6), only if he has been in practice as an advocate for not less than seven years.
(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor. c ['Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this subsection'].
(9) For the purposes of subsection (7) and subsection (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.]"
27 I shall now look into the Rules, 2009.
27.1 Rule 2 (c) defines the "District Government Pleader as under:
"District Government Pleader" means the Government Pleader appointed for any district Court in the mofussil and includes Government Pleader appointed for the Ahmedabd City Civil Court;
27.2 Rule 2(j) defines the "Public Prosecutor" as under:
"Public Prosecutor" means any person appointed under section 24 of Code of Criminal Procedure, 1973 to be a Public Prosecutor for Sessions Division and includes an Additional Public Prosecutor, Assistant Public Page 40 of 106 HC-NIC Page 40 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT Prosecutor and Special Public Prosecutor."
27.3 Rule 4 provides for the appointment of Law Officers. 27.4 Rule 4(6) relevant for my purpose reads as under:
"The appointment of Public Prosecutor and Additional Public Prosecutor in the District shall be made as per subsection (3) of section 24 of the Code of Criminal Procedure, 1973."
27.5 Rule 5 provides for the qualifications and eligibility to be appointed as the Public Prosecutor in the District Court. The same reads as under:
"5(1) No person shall be qualified to be appointed as the Public Prosecutor in the High Court or the District Court, the Government Pleader in the High Court, District Court or other Court or Tribunal unless
(a) he has at least ten years standing as an advocate of the High Court or District Court of Gujarat;
(b) he is not more than 60 years of age; and
(c) he is an income tax assessee for a period of at least five years prior to his appointment."
27.6 Rule 6 (5) reads as under:
"In case of a gross negligence, misconduct and fraud committed in conducting cases, the Government shall be entitled to initiate legal action against the Law Officer even after the termination of his appointment."
28 The plain reading of Section 24 of the Cr.P.C. and the Rules, referred to above, makes it clear that the District Magistrate in consultation with the Sessions Judge may prepare a panel of names of persons, who are in the opinion of the District Magistrate fit to be appointed as the Public Prosecutor. The use of the words "fit to be Page 41 of 106 HC-NIC Page 41 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT appointed as Public Prosecutor" and "suitable person" goes to show that the fitness and suitability are the express statutory requirements of Section 24. Apart from the eligibility criteria provided by the Rules so far as the appointment as the Public Prosecutor is concerned, the other important eligibility criteria is that such person should be "fit" to be appointed.
29 Meaning of the words "fit to be appointed as Public Prosecutor"
and "suitable person":
● Meaning of the word 'fit':
a) According to the Aiyar's Law Lexicon (pg.1851, Vol.2, 3 rd Edition) , "A" 'fit' person to execute an office, is he 'qui melius etsciat et possit, officium illud intendere.' This word 'idoneus' says Lord Coke, is 'oftentimes in law attributed to those who have any office or function:
and he is said in law to be idoneus, apt and fit to execute his office, who has three things, honesty, knowledge and ability; honesty to execute it truly, without malice, affection, or partiality; knowledge to know what he ought to duly to do; and ability, as well as in state as in body, that he may intend and execute his office, when need in state in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it;" (Dwar, 685).
(b) According to the Black's Law Dictionary (pg. 573, 5 th Edition) , "Fit.Page 42 of 106
HC-NIC Page 42 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT Suitable or appropriate. Comfortable to a duty. Adapted to, designed, prepared."
(c) According to the New Shorter Oxford English Dictionary (pg. 960, Vol. 1, 1993 edition), "Adapted to the requirements of the case, appropriate, suitable." "Befitting the person or circumstances; right, proper."
"Be suited to or appropriate for."
29.1 The expression "fit to be appointed", as used in Section 24(4), Cr.P.C, is distinct from, and is in addition to, the eligibility criterion stipulated in subsection (7) of Section 24. While the eligibility criterion stipulated in Section 24(7) and (9), for being appointed as an Additional Public Prosecutor, is practice as an advocate for not less than seven years, (including service as a Public Prosecutor or Additional Public Prosecutor or Assistant Public Prosecutor), "fitness" for appointment to the said post is more than mere "eligibility" for, if fitness were to be construed as equivalent to eligibility, then the word "fit" used in sub section (4) would be inapposite surplussage, as the eligibility criterion for appointment is stipulated in Section 24(7) and (9) Cr.P.C. 29.2 What does fitness mean? The word "fit" means befitting or meeting adequate standards. The New Oxford dictionary of English (Indian Edition) explains the word "fit" as of a person having the Page 43 of 106 HC-NIC Page 43 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT requisite skills to undertake something competently. The essential requirement of fitness, under Section 24(4) Cr.P.C, is that the person should be suitable for doing the particular work, which is different from his eligibility. (Mrs. Neelima Sadanand Vartak v. State of Maharashtra (AIR 2005 Bom 431)). The District Magistrate is required to form an opinion that a person is fit to be appointed as an Additional Public Prosecutor before he prepares a panel of names of persons to be appointed to the said post.
● Meaning of the word 'suitable':
(a) According to the Black's Law Dictionary (pg. 1286, 5 th Edition) , "Suitable. Fit and appropriate for the end in view."
(b) According to the New Shorter Oxford English Dictionary (pg. 3136, Vol. 2, 1993 Edition), "Agreeing in nature, condition or action;
corresponding, analogous". "That is fitted for or appropriate for a purpose, occasion, person's character."
30 Thus, the above would suggest that the word "fit" would mean fitness in the context of the role and duties attached to the position or the post in question. The appointee is, therefore, required to be fit and suitable for,
(a) holding the independent office of the Public Prosecutor in the manner in which it is required to be held under the law; Page 44 of 106 HC-NIC Page 44 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT
(b) for being able to perform the duties and functions that are required to be performed by the Public Prosecutor in the manner in which they are expected to be performed under the law.
31 In the case of House of Lords in R v. Crown Court (2002) 1 WLR 1954, it has been observed as under:
"Secondly, some consideration must be given to the expression "fit and proper" person. This a portmanteau expression, widely used in many contexts. It does not lend itself to semantic exegesis or paraphrase and takes its colour from the context in which it is used. It is an expression directed to ensuring that an applicant for permission to do something has the personal qualities and professional qualifications reasonably required of a person doing whatever it is that the applicant seeks permission to do..." (para 9, emphasis supplied)
32 The Supreme Court in the case of N. Kannadasan v. Ajoy Ghose [(2009) 7 SCC 1], observed as under:
"... He may not, however, be reappointed if it is found that he is otherwise disqualified therefor, namely, to satisfy the test of fitness and suitability; physical intellectual and moral, before the Central Government can, consistently with its constitutional obligation and in public interest, decide to reappoint him as an Additional Judge or appoint him as a Permanent Judge." (para 28, emphasis supplied)"
33 The fitness and suitability could also be said to be implied inbuilt requirements of Section 24 of the Cr.P.C. as well as Rule 4 of the Rules, 2009 and only a person who is fit and suitable and who possess impeccable integrity and character can be appointed as the Public Prosecutor.
34 In N. Kannadasan (supra), it is observed that fitness and Page 45 of 106 HC-NIC Page 45 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT suitability, physical intellectual and moral are matters that are required to be considered before making an appointment, that the words "is or has been a Judge of a High Court" appearing in Section 16 of the Consumer Protection Act have been interpreted to cover not any person who has been a Judge but a person who has retired from service without any blemish, that eligibility of a Judge of a High Court should not be considered in a pedantic manner but must be held to include suitability of the person concerned which includes his character and integrity. 35 In State of Punjab vs. Salil Sabhlok, [(2013) 5 SCC 1], the Supreme Court observed that the office of the Chairman of the Public Service Commission must be manned by competent, honest and independent persons of outstanding ability and high reputation, that it is necessary that society does not lose confidence in the Commission, that in addition to express restrictions there are also implied restrictions in a statute and that adverse comments made by the Central Administrative Tribunal in the judicial proceedings ought to have been taken note of by the appointing authority.
36 In the case of Centre for PIL and another v. Union of India [(2011) 4 SCC 1] emphasis was placed on the necessity to make the appointment keeping in mind the need for the institutional integrity and to take into consideration what is good for the institution and not what Page 46 of 106 HC-NIC Page 46 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT is good for the appointee.
37 It may not be out of place to state at this stage that neither Section 16 of the Consumer Protection Act, 1986 (Appointment of President of State Commission) nor Article 217 of the Constitution of India (Appointment of a High Court Judge) nor Article 316 (Appointment of Chairman of Public Service Commission) nor Section 4 of the Central Vigilance Commission Act 2003 (Appointment of Central Vigilance Commissioner) specifically state that the appointee must be fit or suitable or must be a person of integrity and character. However, fitness and suitability have been read into the provisions by the Supreme Court as implied requirements considering the nature of the role and the duties to be discharged by the person holding the said position and thereby, giving to the provisions a purposive interpretation keeping in mind the purpose sought to be achieved.
38 OFFICE OF THE PUBLIC PROSECUTOR:
38.1 Role and function: The office of the Public Prosecutor involves duties of public nature and of vital interest to the public. Sections 199(2), 225, 302, 308, 378, 301, 385(1) and 321 of the Cr.P.C. are some of the provisions in the Cr.P.C., which confers a special position upon the Public Prosecutor. This would go to show that a Public Prosecutor is not just an advocate engaged by the State to conduct its Page 47 of 106 HC-NIC Page 47 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT prosecutions. The importance of the office from the point of view of the State and Community, is brought out in Section 321, Cr.P.C. which vests in the Public Prosecutor a discretion to apply to the Court for its consent to withdraw from the prosecution of any person. The consent, if granted, has to be followed by the discharge of the person or his acquittal as the case may be.
38.2 There cannot be any doubt that there is a public element attached to the office or the post of the Public Prosecutor appointed under Section 24, Cr.P.C. They hold the "office" or statutory post which may be different from other post which a public servant holds in the Government office, but it cannot be denied that there is a public element attached to such "office" or "post". The Public Prosecutors are officers of the Court who assist the Courts in the process of dispensation of justice.
38.3 The Criminal law enforcement system investigates crimes and prosecutes offenders. It must also protect valued rights and freedoms, and convict only the guilty. The prosecutor must recognize these different and competing interests. He should strike a fair balance between the competing interests of convicting the guilty, protecting citizens' rights and freedoms and protecting the public from criminals.
Prosecutors should ensure that prosecutions are conducted in a diligent, competent and fair manner. The importance of the office of the Public Page 48 of 106 HC-NIC Page 48 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT Prosecutor cannot be overemphasized. The Public Prosecutor must be a person of high merit, fair and objective, because upon him depends to a large extent the administration of criminal justice. The office of the Public Prosecutor is a public office and the incumbent has to discharge statutory duties. The person appointed as Public Prosecutor must, therefore, be one who is not only able and efficient, but also enjoys a reputation and prestige which satisfy his appointment as a Public Prosecutor. (Reyasat Ali Khan v. State of Bihar (1996) 2 Crimes 358). The duty of the prosecutor is to assist the Court in reaching a proper conclusion in regard to the case which is brought before it for trial. (Darya Singh v. State of Punjab (1964) 3 SCR 397 : (AIR 1965 SC 328)). The prosecutor has to be fair in the presentation of the prosecution case. He must not suppress or keep back from the court evidence relevant to the determination of the guilt or innocence of the accused. He must present the complete picture, and not a one sided picture. He must not be partial to the prosecution or to the accused. He has to be fair to both sides in the presentation of the case. (Prabhu Dayal Gupta v. State (1986 Cri LJ 383 (Del).
38.4 A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts of the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not Page 49 of 106 HC-NIC Page 49 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT only to the Court to the investigation agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial, the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the Court, if it comes to his knowledge.
39 Law Officers are one of the important wheels of the chariot, driven by the Judges to attain the cherished goal of humanbeing to secure justice against the wrong doers. The main object of the State is to curb the crime, investigate and prosecute the offenders and punish them, with a view to maintain law and order, amity and harmony, tranquility and peace. The various provisions of the Code of Criminal Procedure and the Rules provide the manner and procedure by which the public prosecutor should be appointed and provide assistance to the Courts. The object of the Code and the Rules is to appoint the best among the lawyers as the public prosecutor to provide assistance to the Court. The people have the vital interest in the matter.
39.1 A Public Prosecutor is more than an advocate of the litigant. He holds a public office. His duties are of public nature. It is not only the State but also the public at large who is concerned in the manner in Page 50 of 106 HC-NIC Page 50 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT which the Government i.e. Public Prosecutor discharges his duties. If he fails to perform his duties properly then the offenders who deserve punishment would be free from the clutches of law. He is not only accountable to the State but also to the public. He is a responsible law officer of the Court. It is his duty to marshal correct facts and law before Court so that the Court may dispense with justice. If such appointment would be the product of the spoils system the rule of law shall be, the ultimate victim, the dispensation of justice shall or in jeopardy and the tears from the eyes of the victim and his or her kith and kin and other relations can never be wiped out.
● INSTITUTIONAL INTEGRITY OF THE OFFICE OF THE PUBLIC PROSECUTOR:
40 The institutional integrity of the institution of the Public Prosecutor should be kept in mind while recommending the name of the candidate. Appointment to the post of a Public Prosecutor must satisfy not only the eligibility criteria of the candidate, but also the decision making process of the recommendation. The decision to recommend must be an informed decision keeping in mind the fact that the Public Prosecutor, as an institution, has to perform an important function in criminal justice administration. If a statutory authority, like the District Collector or the Sessions Judge, eschew relevant material having nexus to the object and purpose of Section 24, Cr.P.C, or take into account Page 51 of 106 HC-NIC Page 51 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT irrelevant circumstances, then their decision/recommendation would stand vitiated on the ground of arbitrariness. The authorities must take into consideration the question of institutional competence into account. If the selection would adversely affect the institutional competence and functioning, then it is their duty not to appoint such a candidate. Institutional integrity should be the primary consideration while submitting proposals for appointment to the post of a Public Prosecutor. While exercising the powers conferred by the Section, the competent authority should consider what is good for the institution, and not what is good for the candidate. When institutional integrity is in question, the touchstone should be "public interest". Personal integrity is relevant, and has a corelationship with institutional integrity. If a duty is cast under the Section to recommend the name of the selected candidates, the integrity of that decisionmaking process must ensure that the powers are exercised for the purposes, and in the manner, envisaged by the said Section, otherwise such recommendation will have no existence in the eye of the law. (See P.N.S. Prakash v. Secretary to Govt of A.P., 2013 Cr.L.J. 2771).
41 I may quote with profit the decision of the Supreme Court in the case of Mundrika Prasad Sinha v. State of Bihar [AIR 1979 SC 1871], more particularly, the observations made in paras 15 and 16 as under:
"15. Coming to the larger submission of counsel for the petitioner, we do Page 52 of 106 HC-NIC Page 52 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT recognize its importance in our era of infiltration of politicking even in forbidden areas. A Government pleader is more than an advocate for a litigant. He holds a public office. We recall with approval the observations a Division Bench of the Madras High Court made in Ramachandran v. Alagiriswami and regard the view there, expressed about a Government Pleader's office, as broadly correct even in the Bihar setup.
". . . the duties of the Government Pleader, Madras are duties of a public nature. Besides, as already explained the public are genuinely concerned with the manner in which a Government Pleader discharges his duties because, if he handles his cases badly, they have ultimately to foot the bill. The Rajasthan case does not take into account all the aspects of the matter.
(36) The learned Advocate General argued that the Government Pleader, Madras is only an agent of the Government, that his duties are only to the Government who are his principals and that he owes no duty to the public at all and that for that reason he would not be the holder of a Public Office.
(37) It is difficult to accept this view. The contention of the learned Advocate General may have been less untenable if the duties of the Government Pleader were merely to conduct in courts cases to which Government are a party. But, as the rules stand, he has a number of other duties to discharge. Besides, even if his only duty is the conduct of cases in which Government have been impleaded, still as explained more than once before the public are interested in the manner in which he discharges hid duties.
. . . . . . . . .
(90) I am clearly of opinion that having regard to the fact that the Government Pleader of this court is employed by the State on remuneration paid from the public exchequer and having regard to the various functions and duties to be performed by him in the due exercise of that office, most of which are an independent and responsible character, the office must be held to be a public office within the scope of a quo warranto proceeding.
I consider that the most useful test to be applied to determine the question is that laid down by Erle. J. in (1851) 17 QB 149. The three criteria are, source of the office, the tenure and the duties. I have applied that test and I am of opinion that the conclusion that the office is a public office is irresistible."
16. In this view, ordering about a Government Pleader is obnoxious but nothing savouring of such conduct is made out although we must enter a caveat that Governments under our Constitution shall not play with Laws Page 53 of 106 HC-NIC Page 53 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT Offices on political or other impertinent considerations as it may effect the legality of the action and subvert the rule of law itself. After all, a Government Pleader and, in a sense, every member of the legal profession, has a higher dedication to the people."
42 MEANING OF THE EXPRESSION "THE DISTRICT MAGISTRATE SHALL, IN CONSULTATION WITH THE SESSIONS JUDGE":
42.1 As subsection (4) and subsection (5) of Section 24, Cr.P.C. speak about preparation of a panel, out of which the appointment to the post of Prosecutor or Additional Public Prosecutor is being made, the Sessions Judge and the District Magistrate are required to consult each other;
discuss the names of persons fit to be included in the panel; and include only such names in the panel. The expression "panel of names of persons" does not mean that some names are to be suggested by the Sessions Judge, and some comments are to be made in respect of those names by the District Magistrate, without proper consultation and discussion over such names. The statutory mandate ought to be complied with both in letter and spirit by the District Magistrate and the Sessions Judge. The quality integrity work and overall reputation of the Counsel has to be judged and assessed by the District and Sessions Judge. The District Magistrate is required to consider the suitability of such persons from the administrative point of view. (Harpal Singh Chauhan (AIR 1993 SC 2436)). There must be effective meaningful and real consultation between the Sessions Judge and the District Magistrate Page 54 of 106 HC-NIC Page 54 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT and only then a panel of names should be prepared. (Mrs. Neelima Sadanand Vartak (AIR 2005 Bom 431)). Consultation with the Sessions Judge, under Section 24(4), is on the "fitness" of a person to be appointed as a Public Prosecutor. The Sessions Judge is required not to just pick and choose those who satisfy the eligibility criteria of seven years practice as an advocate, but to ensure that the names of only those eligible advocates, who are "fit" to be appointed as the Public Prosecutors/Additional Public Prosecutors, are included in the panel to be prepared after completion of the consultative process between him and the District Magistrate. The New Oxford dictionary of English (Indian Edition) defines "panel" to mean a small group of people brought together for a purpose. The exercise of preparing a "panel" involves shortlisting the most meritorious candidates. (Mrs. Neelima Sadanand Vartak). The Sessions Judge is obliged to identify the most meritorious candidates, from among those eligible, to be included in the panel for appointment to the post of Public Prosecutors/Additional Public Prosecutors. The factors which the District Judge may take into consideration, before satisfying himself that an eligible advocate is "fit" to be empanelled for being considered for appointment as a Public Prosecutor/ Additional Public Prosecutor, would include the performance of the advocate at the bar, the volume and quality of his practice, the manner in which he conducts himself in Court, his integrity, Page 55 of 106 HC-NIC Page 55 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT a blemishless background, fairness of approach to cases presented by him before the Court, adverse material, if any, the effect of strictures or remarks passed by High Court or Supreme Court in any judgment or order etc. 42.2 The aforesaid factors are merely illustrative and the Sessions Judge can also take into consideration any other factor relevant for determining the "fitness" of an eligible advocate to be appointed as the Additional Public Prosecutor.[See: P.N.S. Prakash (supra)]. 43 In this regard, it should be kept in mind that the final decision is always taken by the Government being the appointing authority and not by the District Magistrate who has only to make his recommendations after holding effective consultation with the Sessions Judge. The use of the word "shall", therefore, in the context of consultation between the District Magistrate and the Sessions Judge has a far reaching consequence, inasmuch as, the State Government intends to select the best person for being appointed on the post of Government Pleader and Public Prosecutor and who can be in a more better position than the District & Sessions Judge to give his opinion as regards the character, integrity, competence, or the like of a lawyer being suitable to assist the Court in performance of the duties of the Government Pleader as well as Public Prosecutor. The District Magistrate obviously would not have the Page 56 of 106 HC-NIC Page 56 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT requisite machinery or the expertise to adjudge the quality of an advocate for dawning the responsibility of the Public Prosecutor and that is the reason why the Rule intends the recommendations to be sent to the State Government after consultation by the District Magistrate with the Sessions Judge, the Head of the Judicial fraternity of the district. 44 The Supreme Court in the case of S.P. Gupta v. President of India [AIR 1982 SC 149] has very succinctly explained the true meaning of the term "consultation".
"30. ... '2. ..."The word `consult' implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct or at least a satisfactory solution"
and added:
39. ..."In order that the two minds may be able to confer and produce a mutual impact, it is essential that each must have for its consideration full and identical facts, which can at once constitute both the source and foundation of the final decision".
Krishna Iyer, J. speaking on behalf of himself and Fazal Ali, J. also pointed out that :
103. ..."all the materials in the possession of one who consults must be unreservedly placed before the consultee and further
103. ... a reasonable opportunity for getting information, taking other steps and getting prepared for tendering effective and meaningful advice must be given to him.
and
103. ...the consultant in turn must take the matter seriously since the subject is of grave importance.
The learned Judge proceeded to add:
103. ... Therefore, it follows that the President must communicate to the Chief Justice all the material he has and the course he proposes. The Chief Justice, in turn, must collect necessary Page 57 of 106 HC-NIC Page 57 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT information through responsible channels or directly, acquaint himself with the requisite data, deliberate on the information he possesses and proceed in the interests of the administration of justice to give the President such counsel of action as he thinks will further the public interest, especially the cause of the justice system."
45 A Division Bench of the Madhya Pradesh High Court in the case of Badri Vishal Gupta v. State of U.P. and others [2007 Cri. L.J. 4421] has also explained the terms "consultation" used in Section 24 of the Cr.P.C. Dipak Mishra, J. (as His Lordship then was) observed as under:
"15. As has been held in the case of Johri Mal (AIR 2004 SC 3800) (supra) which we have reproduced above it has been reiterated that recommendation of the names has to be done in consultation with the District Judge is based on certain principles as the District Judge is supposed to know the merit, competence and capability of the concerned lawyers and the District Magistrate is supposed to know their conduct and also their integrity.
16. In Mundrika Prasad Singh (AIR 1979 SC 1871) (supra) the Apex Court has held that one effective method of achieving the object is to act on the advice of the District Judge regarding the choice of Government Pleaders. The District Judge is under an obligation to prepare a panel after due consultation with the Sessions Judge. There has to be an effective consultation. The term "consultation" has been defined in Corpus Juris Secundum Vol. 16A, 1956 Edition p. 1242 to mean to discuss something together, or to deliberate. In the term "consultation" it is inherent there has to be effective consultation which involves exchange of mutual view point.
17. The term "consultation" used in Section 24 of the Cr. P. C. cannot be equated with consultation of high constitutional functionaries but indubitably signification of the said term cannot be marginalised. The term "consultation" has to be understood in the context in which it is used.
The consultation with the District Judge, as has been held by the Apex Court, is based on certain acceptable norms. The District Judge has to form an opinion with regard to merits, competence and capability of the concerned lawyers. It must be reflected in the consultative process..." 45.1 In Johri Mal (AIR 2004 SC 3800) (supra) a threeJudge Bench of Page 58 of 106 HC-NIC Page 58 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT the Apex Court while dealing with the issue of consultation expressed the view as under : "86. The age old tradition on the part of the States in appointing the District Government counsel on the basis of the recommendations of the District Collector in consultation with the District Judge is based on certain principles. Whereas the District Judge is supposed to know the merit, competence and capability of the concerned lawyers for discharging their duties, the District Magistrate is supposed to know their conduct outside the Court visavis the victims of offences, public officers, witnesses etc. The District Magistrate is also supposed to know about the conduct of the Government counsel as also their integrity.
88. The State should bear in mind the dicta of this Court in Mundrika Prasad Singh (AIR 1979 SC 1871) (supra), as regard the necessity to consult the District Judge. While making appointments of District Government Counsel, therefore, the States should give primacy to the opinion of the District Judge. Such a course of action would demonstrate fairness and reasonableness of action and, furthermore, to a large extent the action of the State would not be dubbed as politically motivated or otherwise arbitrary. As notice hereinabove, there also does not exist any rationale behind deletion of the provision relating to consultation with the High Court in the matter of appointment of the Public Prosecutors in the High Court. The said provision being a salutary one it is expected that the State of U. P. either would suitably amend the same or despite deletion shall consult the High Court with a view to ensure fairness in action." (Emphasis supplied) 46 The same view has also been followed by the Apex Court in the case of State of J & K vs. A.R. Zakki, 1992 AIR(SC) 1546, wherein, it was held as follows: Though consultation does not mean "concurrence", it postulates an effective consultation which involves exchange of mutual viewpoints of each other and examination of the relative merits of the other point of view. Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. 46.1 Yet again the Apex Court in the case of Indian Administrative Page 59 of 106 HC-NIC Page 59 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT Service (S.C.S.) Assn. vs. Union of India, 1993 Supp 1 SCC 730 had held as follows: Consultation is a process which requires meeting of minds between the parties involved in the process of consultation on the material facts and points involved to evolve a correct or at least satisfactory solution. There should be meeting of minds between the proposer and the persons to be consulted on the subject of consultation. There must be definite facts which constitute the foundation and source for final decision. The object of the consultation is to render consultation meaningful to serve the intended purpose. Prior consultation in that behalf is mandatory. 46.2 In the case of Supreme Court Advocatesonrecord Assn. vs. Union of India, 1994 AIR(SC) 268 In common parlance, whenever the expression "consultation" is used in, connection with lawyers, or with the physician or with the engineer etc. it would mean as seeking opinion or advice or aid or information or instruction.
● WHETHER THE THREE WRIT APPLICATIONS ARE HIT BY THE DOCTRINE OF RES JUDICATA :
47 It appears that in the past, one writ application in the public interest was filed in this Court which was ordered to be summarily dismissed. The Writ Petition (PIL) No.125 of 2015 was summarily dismissed on 02.07.2015 in the following terms:
"We have heard Mr. Jairaj Chauhan, learned counsel for the petitioner. This petition in the nature of Public Interest Litigation has been filed by the petitioner who is a retired pensioner. He prays that appointment of respondent no.2 as District Government Pleader and Public Prosecutor of Vadodara District be set aside in view of the observations made by the Apex Court in the case of Zahira Habibullah Sheikh vs. State of Gujarat, reported in 2004 [0] GLHELSC 34895. The said judgment has been annexed to the petition as Annexure:B. The petitioner appears to be a busybody and this petition cannot be maintainable as Public Interest Petition for settling personal vendetta. Accordingly, this petition in the nature of Public Interest Litigation is summarily dismissed."Page 60 of 106
HC-NIC Page 60 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT 48 In Sheodan Singh v. Daryao Kunwar, (1966) 4 SCR 300, the Supreme Court laid down the ingredients of Section 11 of the Code of Civil Procedure, the principles of which could be extended even to the writ proceedings, stating as under:
"9. A plan reading of Section 11 shows that to constitute a matter res judicata, the following conditions must be satisfied, namely
(i) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit;
(ii) The former suit must have been a suit between the same parties or between parties under whom they or any of them claim;
(iii) The parties must have litigated under the same title in the former suit;
(iv) The Court which decided the former suit must be a Court competent to try the subsequent suit or the suit in which such issue is subsequently raised; and
(v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit. Further Explanation 1 shows that it is not the date on which the suit is filed that matters but the date on which the suit is decided, so that even if a suit was filed later, it will be a former suit if it has been decided earlier. In order therefore that the decision in the earlier two appears dismissed by the High Court operates as res judicata it will have to be seen whether all the five conditions mentioned above have been satisfied."
49 In my opinion, applying the aforesaid principle, the doctrine of res judicata, will have no application in the present case. It appears that the writ application was dismissed only on the ground of lack of bona fide on the part of the petitioner.
Page 61 of 106 HC-NIC Page 61 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT ● PICTURE THAT EMERGES FROM THE MATERIALS AVAILABLE ON RECORD OF THE CASE:
50 On 12.02.2000, a panel consisting of the following four names was prepared for the purpose of appointment of the District Government Pleader and Public Prosecutor:
(i) R.N. Pandya (respondent No.3)
(ii) A.S. Waghela
(iii) B.G. Binniwale
(iv) J.N. Vyas 50.1 The Secretary and Remembrancer of Legal Affairs put up a detailed note stating that none of the above referred four persons (including the respondent No.3) was fit or suitable to be appointed as the Public Prosecutor, and further that the concerned Law Minister had also agreed with the opinon of the Secretary and RLA, and had accordinlgy directed that a new panel be prepared.
50.2 On 27.3.2000, a second panel of names was prepared and sent to the State Government. This panel list consisted of three persons which included two persons (A.S. Waghela and B.G. Binniwal, who had already been rejected in the first round). The Secretary and RLA again put up a detailed note rejecting the first two names on the ground that they had already been rejected earlier and also rejected the third name of one Shri C.R. Patel. The District Magistrate was again requested to prepare a fresh panel of names. It may not be out of place to state at this stage that Page 62 of 106 HC-NIC Page 62 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT on both the occasions, the Government went into the issue of suitability and fitness of the persons named in the panel, and thereafter, rejected them on the ground of suitability and fitness.
50.3 On 12.10.2000, a third panel of names was sent to the State Government. It consisted of the following three names:
(i) Raghuvir N. Pandya (respondent No.3)
(ii) Dipak J. Vyas
(iii) Babulal Shah 50.4 The State Government noted that Mr. Pandya's name has already been rejected. Notings were made by the Secretary as regards the manner in which the panel of names was prepared and also the noting that an attempt was being made to favour certain persons.
50.5 In December, 2001, the Government noted that a complaint was made by an advocate, namely, Shri J.I. Patel, against Shri Pandya (the then Incharge Government Pleader regarding corruption). 50.6 On 26.02.2002, the respondent No.3 herein was appointed as the District Government Pleader and Public Prosecutor for Vadodara for a period of one year.
50.7 In 2003, the appointment of the respondent No.3 was extended for a period of two more years.
Page 63 of 106 HC-NIC Page 63 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT 50.8 Thereafter, the Best Bakery trial was conducted. 50.9 On 04.05.2005, the State Government extended the tenure of the respondent No.3 for a further period of three years which came to an end on 03.03.2008.
50.10 On 29.01.2009, a panel consisting of the following five names was prepared for the purpose of appointment of the District Government Pleader and Public Prosecutor:
(i) Narayan Sukhchand Shah
(ii) Dipak Jagdish Vyas
(iii) Bhumika Bhupendra Trivedi
(iv) Dwarkesh Ramanlal Haribhakti
(v) Raghuvir Nandkrishna Pandya (respondent No.3) 50.11 On 03.02.2009, the Government made a noting that there were allegations against Shri Haribhakti Dwarkesh Ramanlal. The Government also made a noting that there were allegations against Nos.
(ii), (iv) and (v), which included the respondent No.3 herein. The documents on record issued under the Right to Information Act would indicate that there are notings regarding adverse remarks against Mr. Pandya (respondent No.3), Mr. Vyas and Mr. Haribhakti. 50.12 Finally, one Shri Narayan Shah was appointed as the District Government Pleader and Public Prosecutor. 50.13 The term of Mr. Narayan Shah came to an end in the year 2013. Page 64 of 106 HC-NIC Page 64 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT 50.14 On 29.07.2013, once again, a panel of names was prepared for the appointment as the District Government Pleader and Public Prosecutor. It appears that at the relevant point of time, one Shri Mamtora was the District Judge.
50.15 On 19.02.2014, the Chief Secretary of the Legal Department called for several other details from the District Magistrate, Vadodara, including his opinion as regards the persons named in the panel. By that time the District Magistrate and the District Judge who had conducted the interviews were already transferred.
50.16 On 01.04.2015, the then District Magistrate, by his letter addressed to the Chief Secretary, Legal Department, furnished certain details titled 'Abhipray' (opinion). The only thing that was stated in the column of opinion was with regard to the age of the respondent No.3, year from which he had started practice and his Income Tax returns. No opinion was expresed as regards the fitness / suitability. 50.17 The learned District Judge, who has signed the table which is on record is as one Ms. Pinto, who had neither taken the interview nor had participated in the consultative process. The District Magistrate, who has signed the table, had also not taken part in the consultative process and had not taken the interview.
Page 65 of 106 HC-NIC Page 65 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT 50.18 On 07.05.2015, the Legal Department appointed the respondent No.3 as the District Government Pleader and Public Prosecutor for a period upto 31.12.2017.
51 Thus, from the above, it appears that in the year 2009, the respondent No.3 herein was considered for the post and was not found fit. It is possible, though it is not made clear that on account of the scathing remarks passed by the Supreme Court, the State Government might not have found the respondent No.3 fit and suitable to be appointed to the post or for any other good reason.
52 In the present case, I have noticed is that there was no consultation in its true sense. It appears from the materials on record that few lawyers were called for the interview which was conducted by the then District Magistrate and the then Principal Sessions Judge. What has been shown to me is a marksheet containing six columns under the different heads and the marks allotted to the persons who had appeared in the interview under the different heads. It is conceded before me by the learned Advocate General appearing for the State that except this, there is no other material to show that there was any consultation as such. I repeatedly inquired whether there is any opinion in writing of the District Magistrate as well as the Principal Sessions Judge as regards the Page 66 of 106 HC-NIC Page 66 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT fitness and suitability and other relevant aspects of each of the candidates. The answer was in the negative. I also inquired whether there was any opinion as regards the fitness and suitability of the District Magistrate as well as the Principal Sessions Judge in writing so far as the respondent No.3 is concerned. The reply was in the negative. What was taken into consideration and in what manner is also not shown to this Court. As observed above, what has been shown to me is the marksheet and since the respondent No.3 appeared to have secured the highest marks, the State Government i.e. the concerned Minister put an endorsement in the original file shown to me that the respondent No.3 be appointed.
53 I inquired with Mr. Mitesh Amin, the learned Public Prosecutor of this Court whether any independent inquiry or exercise was undertaken by the State Government before the respondent No.3 was selected. Mr. Amin, the learned Public Prosecutor made himself very clear that having regard to the fact that the respondent No.3 had secured the highest marks, the Law Minister thought fit to appoint him. Besides this, there was no other independent inquiry at the end of the State Government.
● "FITNESS" OF THE EMPANELLED ADVOCATES MUST ALSO BE EXAMINED BY THE GOVERNMENT BEFORE APPOINTING ONE OF THEM AS THE PUBLIC PROSECUTOR:
54 It goes without saying that the "fitness" of the empanelled Page 67 of 106 HC-NIC Page 67 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT advocates must also be examined by the Government before appointing one of them as the Public Prosecutor. The appointment to the post of the Public Prosecutor cannot be on the sweet will of a Minister. There are many relevant consideration which should weigh with the Minister before finalizing the appointment. I wonder, whether the State Government had considered the effect and implications of the remarks passed by the Supreme Court.
55 The panel is prepared of persons who are all fit to be appointed as the Public Prosecutors. If all are fit to be appointed and if the Government has to thereafter appoint one of them, such person cannot be just picked up at random or on some extraneous consideration. This is the reason why I am laying stress on the fact that the State Government being the appointing authority is expected to undertake its own exercise and choose the fittest person from the panel of persons prepared by the District Magistrate in consultation with the Sessions Judge. The State should not act as a mere rubber stamp, otherwise, the very power of the appointment conferred on it would be frustrated. The State is obliged to act fairly and take an appropriate decision as regards the appointment of a particular person from the panel in public interest. The State should not do anything which would shake the confidence of the people at large. In the past also, as I have indicated, the State did undertake some Page 68 of 106 HC-NIC Page 68 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT exercise to determine the fitness and suitability of the candidates, but this time, it seems that nothing has been done, and straight way, the Minister has put a note to appoint the respondent No.3 as the Public Prosecutor. What was so special about the respondent No.3, except the marks and why the other candidates were not found fit has not been explained. Of course, so far as the suitability part is concerned, it is the domain of the Government, but the suitability in the present case, is dependent on the fitness of a particular person and fitness is the most important eligibility criteria according to the statutory provisions. 56 A lot was argued by both the sides as regards the distinction between the "eligibility and suitability". In my view, the eligibility factor provides answer to the question "can the person perform?" The suitability factor provides answer to the question "will the person perform?" The Supreme Court in the case of Mahesh Chandra Gupta (supra) explained that "eligibility" is an objective factor. While considering the elevation of the respondent No.3 as an Additional Judge of the Allahabad High Court, the Supreme Court observed that when "eligibility'" is put in question, it could fall within the scope of judicial review. However, the question as to who should be elevated to the Bench of the High Court, which essentially involves the aspect of "suitability", stands excluded from the purview of a judicial review. The Supreme Court also observed that once there is a consultation, the content of that consultation is Page 69 of 106 HC-NIC Page 69 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT beyond the scope of judicial review, though lack of effective consultation like in the present case could fall within the scope of judicial review. 57 In the aforesaid context, I may refer to and rely upon the decision of the Supreme Court in the case of M. Manohar Reddy and another v. Union of India and others [AIR 2013 SC 795], wherein the Supreme Court considered its own decision in the case of Mahesh Chandra Gupta (supra). I may quote the observations made by the Supreme Court in paras 13, 14 and 15 as under:
"13. The concepts of "eligibility" and "suitability" were later examined by this Court in the decision in Mahesh Chandra Gupta (to which one of us Aftab Alam, J. was also a Member). In Mahesh Chandra Gupta, challenge was made to the appointment of a Judge of the Allahabad High Court after the incumbent had assumed his office. In the writ petition, as it was originally filed, the appointment was questioned only on the ground that the incumbent did not possess the basic eligibility for being appointed as a Judge of the High Court. Later on, the appointment was also challenged on grounds of suitability and want of effective consultation process by taking additional pleas in supplementary affidavits. Kapadia, J. (as His Lordship then was), speaking for the Court brought out the distinction between "eligibility" and "suitability" and pointed out that eligibility was based on objective facts and it was, therefore, liable to judicial review. But, suitability pertained to the realm of opinion and was, therefore, not amenable to any judicial review. The Court also examined the class of cases relating to appointment of High Court Judges that might fall under judicial scrutiny and concluded that judicial review may be called for on two grounds namely, (i) "lack of eligibility" and (ii) "lack of effective consultation". In paragraphs 39, 43 and 44 of the judgment the Court said:
"39. At this stage, we may state that, there is a basic difference between "eligibility" and "suitability". The process of judging the fitness of a person to be appointed as a High Court Judge falls in the realm of suitability. Similarly, the process of consultation falls in the realm of suitability. On the other hand, eligibility at the threshold stage comes under Article 217(2)(b). This dichotomy between suitability and eligibility finds place in Article 217(1) in Page 70 of 106 HC-NIC Page 70 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT juxtaposition to Article 217(2). The word "consultation" finds place in Article 217(1) whereas the word "qualify" finds place in Article 217(2).
43. One more aspect needs to be highlighted. "Eligibility" is an objective factor. Who could be elevated is specifically answered by Article 217(2). When "eligibility" is put in question, it could fall within the scope of judicial review. However, the question as to who should be elevated, which essentially involves the aspect of "suitability", stands excluded from the purview of judicial review.
44. At this stage, we may highlight the fact that there is a vital difference between judicial review and merit review. Consultation, as stated above, forms part of the procedure to test the fitness of a person to be appointed a High Court Judge under Article 217(1). Once there is consultation, the content of that consultation is beyond the scope of judicial review,though lack of effective consultation could fall within the scope of judicial review. This is the basic ratio of the judgment of the Constitutional Bench of this Court in Supreme Court AdvocatesonRecord Assn. (AIR 1994 SC 268: 1993 AIR SCW 4101) and Special Reference No. 1 of 1998 : (AIR 1999 SC 1 : 1998 AIR SCW 3400).
(Emphasis added)
14. In paragraphs 71 and 74 of the judgment again the Court observed as under:
Justiciability of appointments under Article 217(1)
71. In the present case, we are concerned with the mechanism for giving effect to the constitutional justification for judicial review. As stated above, "eligibility" is a matter of fact whereas "suitability" is a matter of opinion. In cases involving lack of "eligibility" writ of quo warranto would certainly lie. One reason being that "eligibility"
is not a matter of subjectivity. However, "suitability" or "fitness" of a person to be appointed a High Court Judge: his character, his integrity, his competence and the like are matters of opinion.
74. It is important to note that each constitutional functionary involved in the participatory consultative process is given the task of discharging a participatory constitutional function; there is no question of hierarchy between these constitutional functionaries. Ultimately, the object of reading such participatory consultative process into the constitutional scheme is to limit judicial review restricting it to specified areas by introducing a judicial process in making of appointment(s) to the higher judiciary. These are the norms, apart from modalities, laid down in Supreme Court Page 71 of 106 HC-NIC Page 71 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT AdvocatesonRecord Assn. and also in the judgment in Special Reference No. 1 of 1998,Re. Consequently, judicial review lies only in two cases, namely, "lack of eligibility" and "lack of effective consultation". It will not lie on the content of consultation. (Emphasis added)
15. In view of the decision in Mahesh Chandra Gupta, the question arises whether or not the case in hand falls in any of the two categories that are open to judicial review. Admittedly, the eligibility of respondent No.3 is not an issue. Then, can the case be said to raise the issue of "lack of effective consultation"."
58 In the present case, prima facie, it appears that the State Government overlooked the remarks passed by the Supreme Court, also the notings made in the Government record time to time against the respondent No.3 including the detailed notes to the effect that the respondent No.3 was not fit to be appointed. At this stage, I may usefully refer to and rely upon the decision of the Supreme Court in the case of N. Kannadasan (supra), more particularly, the observations made in paras 107, 108, 123 and 124:
"107. We are not oblivious of the fact that no court howsoever high would have any power of judicial review in relation thereto. Power of judicial review, although is very restricted, cannot be denied to be exercised when relevant fact is not considered. It is now a wellsettled principle of administrative law that the doctrine of error of law apparent on the face of the record inter alia would take within its umbrage a case where statutory authority in exercising its discretionary jurisdiction did not take into consideration a relevant fact or based its decision on wholly irrelevant factors not germane for passing the order.
108. What is not the subjectmatter of judicial review is the opinion of the Chief Justice touching upon the merit of the decision but the decision making process is subject to judicial review. It stands conceded that the proviso appended to Section 16(1)(a) of the Act is imperative in nature. An appointment made without consulting the Chief Justice being wholly without jurisdiction would be void ab initio. If the State is bound to consult the Chief Justice, we reiterate, such consultation must be an Page 72 of 106 HC-NIC Page 72 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT effective and informed one. Both the State Government as also the Chief Justice before forming opinion must have access to all relevant informations. Application of mind on the part of consultant and consultee on such relevant information was, in our considered opinion, absolutely imperative."
"123. Administrative law moreover has much developed since then. The approach of the Privy Council decision in Hubli Electricity Co. Ltd. Case does not commend to us. Where an opinion was not formed on relevant facts or within the restraints of the statute as an alternative safeguard to the rules of natural justice where the function is administrative, evidently judicial review shall lie. (See Barium Chemicals Ltd. v. Company Law Board)
124. In fact Hubli Electricity Co. Ltd. has been considered by this Court in Narayanan Sankaran Mooss v. State of Kerala, stating: (SCC pp. 7677, para 20) "20. The power to revoke the licence is a drastic power. The revocation of licence results in severe abridgement of the right to carry on business. Having in mind the requirements of Article 19(1)(g), Parliament has, it seems to us, prescribed certain conditions to prevent the abuse of power and to ensure just exercise of power. Clauses (a) to (d) of Section 4 prescribe some of the conditions precedent for the exercise of power. The order of revocation, in breach of any one of those conditions, will undoubtedly be void. The clause 'if in its opinion the public interest so requires' is also a condition precedent. On a successful showing that the order of revocation has been made without the Government applying its mind to the aspect of public interest or without forming an honest opinion on that aspect, it will, we have no doubt, be void. The phrase 'after consulting the State Electricity Board' is sandwiched between the clause 'if in its opinion the public interest so requires' and clauses (a) to (d). In this context it appears to us that consultation with the Board is also a condition precedent for making the order of revocation. Accordingly the breach of this condition precedent should also entail the same consequence as the breach of the other conditions referred to earlier. It may be observed that the phrase 'after consulting the State Electricity Board' did not find place in Section 4 as it stood originally. It was introduced in Section 4 in 1959 by an amendment. It seems to us that it was introduced in Section 4 with the object of providing an additional safeguard to the licensee."
59 I may also usefully refer to and rely upon the decision of the Page 73 of 106 HC-NIC Page 73 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT Supreme Court in the case of Salil Sabhlok (supra), more particularly, the observations made in paras 111 to 116:
"111. Learned counsel supporting the appointment of Mr. Dhanda submitted that no procedure is prescribed for the selection of the Chairperson of the Public Service Commission. Therefore, no fault can be found in the procedure adopted by the State Government. It was submitted, relying on Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 that there is an implied power to adopt any appropriate procedure for making the selection and the State Government and the Governor cannot be hamstrung in this regard.
112. It is true that no parameters or guidelines have been laid down in Article 316 of the Constitution for selecting the Chairperson of the Public Service Commission and no law has been enacted on the subject with reference to Entry 41 of List II of the 7th Schedule of the Constitution. It is equally true that the State Government and the Governor have a wide discretion in the procedure to be followed. But, it is also true that Mohinder Singh Gill refers to Lord Camden as having said that wide discretion is fraught with tyrannical potential even in high personages. Therefore, the jurisprudence of prudence demands a fairly high degree of circumspection in the selection and appointment to a constitutional position having important and significant ramifications.
113. Two factors that need to be jointly taken into account for the exercise of the power of judicial review are: the deliberative process and consideration of the institutional requirements.
114. As far as the deliberative process is concerned (or lack of effective consultation, as described in Mahesh Chandra Gupta) it is quite apparent that the entire process of selection and appointment of Mr. Dhanda took place in about a day. There is nothing to show the need for a tearing hurry, though there was some urgency, in filling up the post following the demise of the then Chairperson of the Punjab Public Service Commission in the first week of May 2011. But, it is important to ask, since the post was lying vacant for a couple of months, was the urgency such that the appointment was required to be made without considering anybody other than Mr. Dhanda. There is nothing to show that any consideration whatsoever was given to appointing a person with adequate administrative experience who could achieve the constitutional purpose for which the Public Service Commission was created. There is nothing to show that any background check was carried out to ascertain whether Mr. Dhanda had come in for any adverse notice, either in a judicial proceeding or any police inquiry. It must be remembered that the appointment of Mr. Dhanda was to a constitutional post and the Page 74 of 106 HC-NIC Page 74 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT basics of deliberation before making the selection and appointment were imperative. In this case, clearly, there was no deliberative process, and if any semblance of it did exist, it was irredeemably flawed. The inbuilt constitutional checks had, unfortunately, broken down.
115. In Centre for PIL this Court struck down the appointment of the Central Vigilance Commissioner while reaffirming the distinction between merit review pertaining to the eligibility or suitability of a selected candidate and judicial review pertaining to the recommendation making process. In that case, the selection of the Central Vigilance Commissioner was made under Section 4(1) of the Central Vigilance Commission Act, 2003 (for short the Act) which reads as follows:
"4. Appointment of Central Vigilance Commissioner and Vigilance Commissioners.--(1) The Central Vigilance Commissioner and the Vigilance Commissioners shall be appointed by the President by warrant under his hand and seal:
Provided that every appointment under this subsection shall be made after obtaining the recommendation of a Committee consisting of--
(a) the Prime Minister -- Chairperson;
(b) the Minister of Home Affairs -- Member;
(c) the Leader of the Opposition in the House of the People
-- Member.
Explanation.--For the purposes of this subsection, 'the Leader of the Opposition in the House of the People' shall, when no such Leader has been so recognised, include the Leader of the single largest group in opposition of the Government in the House of the People."
As can be seen, only the establishment of a High Powered Committee (HPC) for making a recommendation is provided for the procedure to be followed by the HPC is not detailed in the statute. This is not unusual since a statute cannot particularize every little procedure; otherwise it would become unmanageable and maybe unworkable. Moreover, some situations have to be dealt with in a common sense and pragmatic manner. Acknowledging this, this Court looked at the appointment of the Central Vigilance Commissioner not as a merit review of the integrity of the selected person, but as a judicial review of the recommendation making process relating to the integrity of the institution. It was made clear that while the personal integrity of the candidate cannot be discounted, institutional integrity is the primary consideration to be kept in mind while recommending a candidate. It Page 75 of 106 HC-NIC Page 75 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT was observed that while this Court cannot sit in appeal over the opinion of the HPC, it can certainly see whether relevant material and vital aspects having nexus with the objects of the Act are taken into account when a recommendation is made. This Court emphasized the overarching need to act for the good of the institution and in the public interest. Reference in this context was made to N. Kannadasan.
116. Keeping in mind the law laid down and the facts as they appear from the record, it does appear that the constitutional, functional and institutional requirements of the Punjab Public Service Commission were not kept in mind when Mr. Dhanda was recommended for appointment as its Chairperson."
60 I may also usefully refer to and rely upon the decision of the Supreme Court in the case of Centre for PIL (supra), more particularly, the observations made in paras 36, 37, 38, 42 to 49:
"36. For the sake of brevity, we may refer to the Selection Committee as the HighPowered Committee. The key word in the proviso is the word "recommendation". While making the recommendation, the HPC performs a statutory duty. The impugned recommendation dated 392010 is in exercise of the statutory power vested in the HPC under the proviso to Section 4(1). The post of the Central Vigilance Commissioner is a statutory post. The Commissioner performs statutory functions as enumerated in Section 8. The word "recommendation" in the proviso stands for an informed decision to be taken by the HPC on the basis of a consideration of relevant material keeping in mind the purpose, object and policy of the 2003 Act. As stated, the object and purpose of the 2003 Act is to have an integrity institution like the CVC which is in charge of vigilance administration and which constitutes an anticorruption mechanism. In its functions, the CVC is similar to the Election Commission, the Comptroller and Auditor General, the Parliamentary Committees, etc. Thus, while making the recommendations, the service conditions of the candidate being a public servant or civil servant in the past is not the sole criterion. The HPC must also take into consideration the question of institutional competency into account. If the selection adversely affects institutional competency and functioning then it shall be the duty of the HPC not to recommend such a candidate. Thus, institutional integrity is the primary consideration which the HPC is required to consider while making recommendation under Section 4 for appointment of the Central Vigilance Commissioner.
37. In the present case, this vital aspect has not been taken into account by Page 76 of 106 HC-NIC Page 76 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT the HPC while recommending the name of Shri P.J. Thomas for appointment as the Central Vigilance Commissioner. We do not wish to discount personal integrity of the candidate. What we are emphasising is that institutional integrity of an institution like the CVC has got to be kept in mind while recommending the name of the candidate. Whether the incumbent would or would not be able to function? Whether the working of the institution would suffer? If so, would it not be the duty of the HPC not to recommend the person. In this connection the HPC has also to keep in mind the object and the policy behind enactment of the 2003 Act.
38. Under Section 5(1) the Central Vigilance Commissioner shall hold the office for a term of 4 years. Under Section 5(3) the Central Vigilance Commissioner shall, before he enters upon his office, make and subscribe before the President an oath or affirmation according to the form set out in the Schedule to the Act. Under Section 6(1) the Central Vigilance Commissioner shall be removed from his office only by the order of the President and that too on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the President, has on inquiry reported that the Central Vigilance Commissioner be removed."
"42. We find no merit in the above submissions. Judicial review seeks to ensure that the statutory duty of the HPC to recommend under the proviso to Section 4(1) is performed keeping in mind the policy and purpose of the 2003 Act. We are not sitting in appeal over the opinion of the HPC. What we have to see is whether relevant material and vital aspects having nexus to the object of the 2003 Act were taken into account when the decision to recommend took place on 392010.
43. Appointment to the post of the Central Vigilance Commissioner must satisfy not only the eligibility criteria of the candidate but also the decisionmaking process of the recommendation (see SCC para 88 of N. Kannadasan). The decision to recommend has got to be an informed decision keeping in mind the fact that the CVC as an institution has to perform an important function of vigilance administration. If a statutory body like the HPC, for any reason whatsoever, fails to look into the relevant material having nexus to the object and purpose of the 2003 Act or takes into account irrelevant circumstances then its decision would stand vitiated on the ground of official arbitrariness (see State of A.P. v. Nalla Raja Reddy). Under the proviso to Section 4(1), the HPC had to take into consideration what is good for the institution and not what is good for the candidate (see SCC para 93 of N. Kannadasan). When institutional integrity is in question, the touchstone should be "public interest" which has got to be taken into consideration by the HPC and in such cases the HPC may not insist upon proof (see SCC para 103 of N. Kannadasan).
44. We should not be understood to mean that personal integrity is not Page 77 of 106 HC-NIC Page 77 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT relevant. It certainly has a corelationship with institutional integrity. The point to be noted is that in the present case the entire emphasis has been placed by the CVC, the DoPT and the HPC only on the biodata of the empanelled candidates. None of these authorities have looked at the matter from the larger perspective of institutional integrity including institutional competence and functioning of the CVC. Moreover, we are surprised to find that between 2000 and 2004 the notings of the DoPT dated 2662000, 1812001, 2062003, 2422004, 18102004 and 2 112004 have all observed that penalty proceedings may be initiated against Shri P.J. Thomas. Whether the State should initiate such proceedings or the Centre should initiate such proceedings is not relevant. What is relevant is that such notings were not considered in juxtaposition with the clearance of the CVC granted on 6102008. Even in the brief submitted to the HPC by the DoPT, there is no reference to the said notings between the years 2000 and 2004. Even in the CV of Shri P.J. Thomas, there is no reference to the earlier notings of the DoPT recommending initiation of penalty proceedings against Shri P.J. Thomas. Therefore, even on personal integrity, the HPC has not considered the relevant material. The learned Attorney General, in his usual fairness, stated at the Bar that only the curriculum vitae of each of the empanelled candidates stood annexed to the agenda for the meeting of the HPC. The fact remains that the HPC, for whatsoever reason, has failed to consider the relevant material keeping in mind the purpose and policy of the 2003 Act.
45. The system governance established by the Constitution is based on distribution of powers and functions amongst the three organs of the State, one of them being the executive whose duty is to enforce the laws made by Parliament and administer the country through various statutory bodies like the CVC which is empowered to perform the function of vigilance administration. Thus, we are concerned with the institution and its integrity including institutional competence and functioning and not the desirability of the candidate alone who is going to be the Central Vigilance Commissioner, though personal integrity is an important quality. It is the independence and impartiality of the institution like the CVC which has to be maintained and preserved in the larger interest of the rule of law (see Vineet Narain).
46. While making recommendations, the HPC performs a statutory duty. Its duty is to recommend. While making recommendations, the criterion of the candidate being a public servant or a civil servant in the past is not the sole consideration. The HPC has to look at the record and take into consideration whether the candidate would or would not be able to function as a Central Vigilance Commissioner. Whether the institutional competency would be adversely affected by pending proceedings and if by that touchstone the candidate stands disqualified then it shall be the duty of the HPC not to recommend such a candidate. In the present case apart from the pending criminal proceedings, as stated above, between the Page 78 of 106 HC-NIC Page 78 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT period 2000 and 2004 various notings of the DoPT recommended disciplinary proceedings against Shri P.J. Thomas in respect of the Palmolein case. Those notings have not been considered by the HPC. As stated above, the 2003 Act confers autonomy and independence to the institution of the CVC. Autonomy has been conferred so that the Central Vigilance Commissioner could act without fear or favour.
47. We may reiterate that the institution is more important than an individual. This is the test laid down in SCC para 93 of N. Kannadasan case. In the present case, the HPC has failed to take this test into consideration. The recommendation dated 392010 of the HPC is entirely premised on the blanket clearance given by the CVC on 6102008 and on the fact of Respondent 2 being appointed as the Chief Secretary of Kerala on 1892007, his appointment as the Secretary of Parliamentary Affairs and his subsequent appointment as the Secretary, Telecom. In the process, the HPC, for whatever reasons, has failed to take into consideration the pendency of the Palmolein case before the Special Judge, Thiruvananthapuram being case CC No. 6 of 2003; the sanction accorded by the Government of Kerala on 30111999 under Section 197 CrPC for prosecuting inter alia Shri P.J. Thomas for having committed the alleged offence under Section 120B IPC read with Section 13(1)(d) of the Prevention of Corruption Act; the judgment of the Supreme Court dated 2932000 in K. Karunakaran v. State of Kerala in which this Court observed that: (SCC p. 767, para 8) "8. ... the registration of the FIR against [Shri Karunakaran] and others cannot be held to be the result of mala fides or actuated by extraneous considerations. The menace of corruption cannot be permitted to be hidden under the carpet of legal technicalities [and in such cases] probes conducted are required to be determined on facts and in accordance with law."(emphasis supplied) Further, even the judgment of the Kerala High Court in Criminal Revision Petition No. 430 of 2001 has not been considered.
48. It may be noted that the clearance of the CVC dated 6102008 was not binding on the HPC. However, the aforestated judgment of the Supreme Court dated 2932000 in K. Karunakaran v. State of Kerala was certainly binding on the HPC and, in any event, required due weightage to be given while making recommendation, particularly when the said judgment had emphasised the importance of probity in high offices. This is what we have repeatedly emphasised in our judgment--institution is more important than individual(s).
49. For the above reasons, it is declared that the recommendation made by the HPC on 392010 is non est in law."Page 79 of 106
HC-NIC Page 79 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT 61 I am of the firm view that the District Magistrate as well as the District Judge should express their respective opinions as regards the fitness and suitability in writing. The opinion in writing should indicate what was discussed, considered, etc. The written opinion should also indicate whether any adverse material had come to their notice and was looked into and discussed. I am saying so, because the District Judge owes a higher responsibility so far as the opinion as regards the fitness and suitability is concerned. The District Magistrate would be wholly dependent on the opinion of the District Judge, because it is the District Judge, who would know best the person who is being considered for the post being a member of the legal fraternity. In a given case, on a given day, the District Judge could also be made answerable in a case like one in hand. Sometimes, it may happen that the District Judge, who takes over on being transferred, may not be familiar with the Bar. Obviously, he would take sometime before he gets to know the lawyers practicing at the Bar. When all of a sudden, he is to give an opinion to the District Magistrate as a part of the consultative process, he might find it difficult. In such circumstances, the District Judge is expected to inquire in his own way by talking to the senior members of the Bar as regards the reputation of the person who is being considered for the post. He should not express any opinion in the absence of any information or material with him. Such an action would be nothing, but a mechanical exercise Page 80 of 106 HC-NIC Page 80 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT on the part of the District Judge. It is true that there is an inherent danger in undertaking such process because there could be two sets of opinions. One, probably, favouring a particular candidate, and the other, something adverse to him, but it is for the District Judge in his own way to ascertain the eligibility as well as the suitability of the lawyer who is being considered for the post. Except merit, nothing else should weigh with the District and Sessions Judge. If there is anything adverse against any person named in the panel, then the District and Sessions Judge should be bold and honest enough to state in his written opinion about the same so that the State Government can also look into the same and would even help the Court at times when the appointments are challenged on the ground of lack of effective consultative process.
62 I am not impressed by the submissions canvassed on behalf of the respondents that the marksheet alone should be construed as an expression of opinion as regards the "fitness" and "suitability". 63 As discussed above, "fitness" and "suitability" are the words of wide import encompassing several characteristics like, integrity, character, competence, honesty, intelligence, reputation, etc. While certain aspects of "fitness" could be expressed by and judged on the basis of the marks (for example, qualifications, experience), several other Page 81 of 106 HC-NIC Page 81 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT aspects are incapable of being expressed by way of marks (for example, honesty, integrity, character, etc). A marksheet by its very nature can never be construed as a final expression of opinion on the fitness and suitability of a person, and more so, when the same relates to a person who is being considered for the appointment as a Public Prosecutor. 64 Mr. Thakore, the learned senior advocate explained in his own way by giving a very apt illustration:
Illustration: There are 5 candidates (A, B, C, D, E) whose names are put on the panel. There are 5 categories under which marks are given:
Knowledge of Law, Communication Skills, Experience, Qualifications, Overall personality and conduct. The total marks in each category are 20 and the total marks 100. E is superior to the others in Knowledge of law, Communication Skills, Experience and Qualifications and in fact very good in those skills. E also has an excellent personality. However, E is a person who has been convicted on numerous charges of corruption done while he was earlier a Public Prosecutor. E is given 10 marks in Overall Conduct and Personality. The following marks are given: Name of Knowledge Communic Experience Qualificati Overall Total candidate of Law ation skills ons conduct and personality traits A 18 17 20 17 16 88 B 16 16 18 17 16 83 C 15 14 19 17 19 84 D 18 18 20 16 17 89 E 20 20 20 20 10 90 In the above illustration, E gets the maximum marks (90) and going only on the basis of the marks, E would appear to be the most suitable and if the government is to go only on the basis of who has the highest marks (as the State Government orally submitted on 24.9.2015 that it did in the present case), the government would appoint E as the Public Prosecutor oblivious of the fact that E, despite his other good characteristics, is totally unfit to be appointed as Public Prosecutor considering that he has been convicted of corruption. In a marking system, there is no way in which the authorities preparing the panel list would be able to convey the fact that E was convicted and there is no way in which the government would come to Page 82 of 106 HC-NIC Page 82 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT know that he was convicted. Conviction on corruption charges is only an illustration of a matter which is not possible to express by way of marks. There can be various other situations which are impossible to express by way of marks but which make a candidate unfit and unsuitable for holding the position of Public Prosecutor and Government Pleader. Few such situations are given hereinbelow:
(ii) The candidate is suffering from a serious disease because of which he may not be able to perform the duties expected out of him.
(iii) The person belongs to a political party and is actively involved in politics resulting in a situation where his independence could be questioned.
(iv) The candidate has been found guilty in a departmental inquiry on several counts of misconduct.
(v) The candidate is a very eminent criminal lawyer and is appearing in a large number of major criminal cases for accused resulting in a situation where he will not be able to appear as Public Prosecutor in the most important criminal matters in the district (considering that he has already represented the accused in major criminal matters).
(vi) Adverse remarks have been made against a candidate in a judicial proceeding with respect to the conduct of the said candidate while holding a public office (which incidentally is the case here).
65 There could be various other situations which could be expressed only by words and not by way of marks. I find a lot of merit in the submission of Mr. Thakore that the marksheet alone can never be an opinion of suitability and fitness. Mr. Thakore has given one more illustration:
Illustration: There are 5 candidates A to E. A & B are the best candidates. A is an LLM and B is an LLB. The total marks scored by A between 4 categories other than 'Qualifications' is 65. The total marks scored by B between 4 categories other than 'Qualifications' is 77. The authorities are very keen to appoint A and, therefore, they decide to give the Qualification marking in such a way that A has a higher total. They give 16 marks to A for his LLM degree (taking his total to 81 marks) but give only 3 marks to Page 83 of 106 HC-NIC Page 83 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT B for his LLB degree (taking his total to 80 marks). If there had existed an objective method for the objective categories, there would be no possibility of this sort of thing happening.
The above is the reason why I am laying more stress on the opinions in writing by the District Magistrate and the Sessions Judge over and above the marksheet.
66 It was argued before me very vociferously on behalf of the respondents that the respondent No.3 fulfills all the requisite eligibility criteria like qualifications, standing at the Bar, Income Tax returns, etc. Once the eligibility criteria is fulfilled, the rest should be left to the State Government i.e. the suitability of the person.
67 In the aforesaid context, I may quote the observations of the Supreme Court in the case of N. Kannadasan (supra) made in para 66 as under:
"66. Eligibility of a Judge of a High Court should not be construed in a pedantic manner. It in the context of a large number of decisions of this court including S.P. Gupta (supra) must also be held to include suitability of a person concerned. For the aforementioned purpose, the principles of purposive interpretation is required to be resorted to."
68 I may also quote the conclusion arrived at by the Supreme Court in the case of N. Kannadasan (supra) as under:
" The summary of our aforementioned discussions is as under:
(i) Judicial review although has a limited application but is not beyond the pale of the superior judiciary in a case of this nature.Page 84 of 106
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(ii) The superior courts may not only issue a writ of quo warranto but also a writ in the nature of quo warranto. It is also entitled to issue a writ of declaration which would achieve the same purpose.
(iii) For the purpose of interpretation of Constitution in regard to the status of an Additional Judge, the word "has been" would ordinarily mean a retired Judge and for the purpose of examining the question of eligibility, not only his being an Additional judge but also a qualification as to whether he could continue in the said post or he be appointed as an acting or adhoc judge, his suitability may also be taken into consideration.
(iv) Section 16 of the Act must also be given a contextual meaning. In a case of this nature, the court having regard to the wider public policy as also the basic feature of the Constitution, viz., independence and impartiality of the judiciary, would adopt a rule of purposive interpretation instead of literal interpretation.
(v) Due consultative process as adumbrated by this Court in various decisions in this case having not been complied with, appointment of Shri Kannadasan was vitiated in law.
(vi) The Government of the State of Tamil Nadu neither could have asked the High Court to send a panel of names of eligible candidates nor the Chief Justice of the High Court could have sent a panel of names of three Judges for appointment to the post of Chairman, State Commission." 69 I am also not impressed by the vociferous submission canvassed on behalf of the respondents that the observations or rather the remarks of the Supreme Court in the decision of Zahira Sheikh (supra) should be ignored. The reason, why the learned counsel appearing for the respondents wants me to ignore, is the time factor. According to the learned counsel, by now almost eleven years have passed and even otherwise not binding to any one. For the present, I may accept the submission or rather I may say that I would not express any opinion in that regard so far as the aspect of suitability is concerned. But at least, it Page 85 of 106 HC-NIC Page 85 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT was expected of the District Magistrate, the District Judge and the State Government as well to consider the effect of it in the public interest. The very fact that the same has not been considered at all, would render the entire consultative process vitiated. I am also not impressed by the submission canvassed on behalf of the respondents that the remarks were passed behind the back of the respondent No.3, and that he had no opportunity to put forward his case. It is trite to say that no man should be condemned unheard, but at the same time, if there is sufficient materials before the Court, then relying upon such material, the Court can always observe something, it deems fit in a given case. In any view of the matter, I did not like the approach of the respondent No.3 in criticizing the remarks passed by the Supreme Court against him when he had no courage in the past eleven years to go before the Supreme Court for expunging of the remarks. I just fail to understand how could the respondent No.3 question the wisdom of the Supreme Court in passing the remarks before the High Court including the legality of such remarks.
70 I am also not impressed by the submission canvassed on behalf of the respondents that even after such remarks were passed, the respondent No.3 had continued to function as the Public Prosecutor for almost a period of four years and the Supreme Court had not directed the State Government to discontinue the respondent No.3. Page 86 of 106 HC-NIC Page 86 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT 71 The Supreme Court in the case of Centre for PIL (supra) observed in para 64 as under:
"64. Even in R.K. Jain's case, this Court observed vide para 73 that judicial review is concerned with whether the incumbent possessed qualifications for the appointment and the manner in which the appointment came to be made or whether procedure adopted was fair, just and reasonable. We reiterate that Government is not accountable to the courts for the choice made but Government is accountable to the courts in respect of the lawfulness/legality of its decisions when impugned under the judicial review jurisdiction. We do not wish to multiply the authorities on this point."
72 A lot has been argued on the motive or conduct of the writ applicants. I do not say for a moment that the motive or conduct of the writ applicants are not relevant factor, but they would be relevant only for denying them the costs even if their claims succeed, but it cannot be a justification to refuse to examine the merits of the question raised therein, since that is the matter of public concern and relates to good governance of the State [See : Kashinath G. Jalmi (Dr.), 1993 (2) SCC 703].
73 A Division Bench of the Punjab High Court in the case of Bindra Ban vs. Sham Sunder and others [AIR 1959 Punjab 83] observed in para 5, 6 and 7 as under:
"5. The normal rule is that a petition under Art. 226 can only be made by a person who has some right and whose right has been infringed. This rule, however, is not an inflexible or an absolute one. There are some well known exceptions to the rule. For instance, an application for a writ of habeas corpus may, in certain circumstances, be made by a near relation or friend of the person under illegal detention. Similarly, it is not Page 87 of 106 HC-NIC Page 87 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT necessary in the case of an application for quo warranto that the applicant should have suffered person injury or should seek redress of a personal grievance.
In proceedings for a writ of quo warranto, the applicant does not seek to enforce any right of his as such, nor does he complain of nonperformance pf any duty towards him. What is in question is the right of the non applicant, to hold the office; the order that is passed is an order ousting him from that office. Since the basic authority Res v. Speyer, (1916) 1 K.B. 595, the rule is well settled that any private person may apply for a quo warranto in the matter of a public office, for every person must necessarily have an interest in matters which concern the public Government.
In this case, the rule was obtained against the respondents that under the law they were not entitled to be members of the Privy Council. An objection was raised that the remedy could only be sought at the instance of the Attorney General by an information ex officio, and that the rule should be discharged because it was issued at the instance of a private relator against a member of the Privy Council, whose appointment is alleged, to be invalid. In the opinion of his Lordship, the applicant appeared to have brought the matter before the Court on purely public grounds without any private interest to serve and it was to the public advantage that the law should be declared judicial authority.
6. In India also, the principle laid down in Rex v. Speyer is being consistently followed, Legality of the appointment of an Advocate General was questioned by a private relator in a writ petition under Art. 226 of the Constitution in G.D. Karkare v. T.L. Shevde, AIR 1952 Nag 330. One of the objections raised was that since no question of any fundamental right was involved and the applicant himself had no complaint to make of any infringement of his personal right, the applicant could not invoke the power of the Court under the said Article. The rule laid down in 19161 KB 595 was followed and it was held that there was no reason to refuse a citizen under the democratic republic constitution to move for a writ of quo warranto for testing the validity of a high appointment of a public nature and of grave public concern, as that of an Advocate General.
7. The offices of ViceChancellor, Registrar and Assistant Registrar of the University in respect of which a writ was prayed for by a private individual, having no personal interest in the matter were regarded as important statutory offices of public nature in Rajendarkumar Chandanmal v. Government of State of M.P. AIR 1957 Madh Pra. 60. It was held that for the issue of a writ of quo warranto no special kind of interest in the relator is needed, nor is it necessary that any of his specific legal rights be infringed. It is enough for its issue that the relator is a member of the public and acts bona fide and is not a mere pawn in the Page 88 of 106 HC-NIC Page 88 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT game having been set up by others. If the Court is or the view that it is in the interest of the public that the legal position with respect to the alleged usurpation of an important public office should be judicially cleared, it can issue a writ of quo warranto at the instance of any member of the public."
74 A Division Bench of the Nagpur High Court in the case of G.D. Karkare v. T. Shevde [AIR 1952 Nagpur 330] observed in paras 18, 19 and 20 as under:
"18. The words "for any other purpose" must receive their plain and natural meaning, namely, for any other object which the Court considers appropriate and calls for the exercise of the powers conferred upon it. Though the power of this Court under Art. 226 is ordinarily exercisable for enforcement of right or performance of duty, it cannot necessarily be limited to only such cases. Such a limitation cannot be reconciled with the power to issue a writ in the nature of 'quo warranto' which power has been expressly conferred on the Court. In proceedings for a writ of 'quo warranto' the applicant does not seek to enforce any right of his as such, nor does he complain of, any nonperformance of duty towards him.What is in question is the right of the nonapplicant to hold the office and an order that is passed is an order ousting him from that office. Shri Karkare is only invoking what in the words of Lush, J., in 'REX v. SPEYER', (1916) 1 KB 595 ('supra') is "the process by which persons who claim to exercise public functions of an important and substantive character by whomsoever appointed, can be called to account if they are not legally authorised to exercise them." (p.
627).
19. In 'REX v. SPEYER', (1916) 1 KB 595 ('supra') Sir F. E. Smith (later Lord Birkenhead) contended that the remedy could only be sought at the instance of the AttorneyGeneral by an information 'ex officio' and the order should be discharged because it had been made at the instance of a private person. What was in question there was the appointment to the Privy Council. The contention was negatived on the ground that the application concerned public government and there was no ground for impugning the motives of the relator. Nor have the motives of the applicant been questioned in the instant case.
Sir George Makgill had no private interest to serve in questioning the appointment of Sir Edgar Speyer to the Privy Council. He brought the matter before the Court purely on public grounds. If under a monarchical system, the first principle of which is that the King can do no wrong, an appointment made by the King can under circumstances present in this Page 89 of 106 HC-NIC Page 89 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT case be questioned by any of his subjects without showing any personal interest in the matter, we see no reason to refuse a citizen under a democratic republican constitution to move for a writ of 'quo warranto' for testing the validity of a high appointment under the Constitution.
20. The very fact that the appointment in question is to an office for which provision has been made in the Constitution renders any question about the validity of such an appointment a question of paramount importance concerning the way in which the Constitution is being worked. Under Cl. (2) of Art. 165 the AdvocateGeneral is the legal adviser of the Government. Under Art. 177 he has also a right to speak and take part in the proceedings of the Legislature and thus influence the course of discussion and decision there. The present application thus concerns public government."
75 Thus, I am far more convinced having regard to the materials on record that the case in hand is one of lack of effective consultation. 76 Let me now look into the decisions relied upon by the learned Advocate General appearing for the State.
77 In the case of State of Uttar Pradesh (supra), the question before the Supreme Court was whether a legally enforceable right to claim the renewal of appointment to the post of ADGC (Criminal) was available to the respondents and the scope of judicial review in that regard. The High Court held the right to renewal of appointment as a legally enforceable one and went to interfere with the decision of the State Government seeking filling up of the post by direct selection instead of renewing the tenure of the respondents as was claimed by them in the writ applications. Allowing the appeal of the State, the Supreme Court Page 90 of 106 HC-NIC Page 90 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT observed in paras 34, 35 and 36 as under:
"34. Applying the principles of law laid down by this Court in the above quoted decision, this Court finds that the decision of the State Government not to accept the recommendation made by the District Magistrate cannot be said to be arbitrary. There is no manner of doubt that the A.D.G.C. (Criminal) are not only officers of the Court but also the representatives of the State. They represent the interest of the general public before a Court of law. The holders of the post have a public duty to perform. However, in the matter of engagement of A.D.G.C. (Criminal) a concept of public office does not come into play. The choice is that of the Government and none can claim a right to be appointed because it is a position of great trust and confidence. Article 14, however in a given case, may be attracted to a limited extent if the State fails to discharge its public duty or acts in defiance, deviation and departure of the principles of law.
35. This position is again made clear in an unreported decision of this Court dated November 11, 2010 rendered in Civil Appeal No. 3785 of 2003. In the said case the State of U.P. by its order dated 03.06.2002 had rejected the request of the respondent Satyavrat Singh for renewal of the extension of his term as District Government Counsel (Criminal). The respondent had challenged the same in the Writ Petition. The Allahabad High Court had quashed the order 03.06.2002 refusing renewal of the term of the respondent as District Government Counsel (Criminal) and had directed the State Government to renew the term of the respondent as Government Counsel. While allowing the appeal filed by the State Government this Court has held as under: "It is difficult to discern as to how the High Court has upheld the unstatable proposition advanced by the respondent for extension of his term as Government Counsel. We wish to say no more in this matter since the subject matter that arises for our consideration is squarely covered by the decision of this Court in State of U.P. and another v. Johri Mal, 2004 (4) SCC 714 : (AIR 2004 SC 3800 : 2004 AIR SCW 3888). This Court took the view that in the matter of engagement of a District Government Counsel, a concept of public office does not come into play. The choice of a counsel is for the Government and none can claim a right to be a counsel.
There is no right for appointment of a Government Counsel. The High Court has committed a grave error in renewing the appointment of the respondent as Government Counsel.
Needless to state that the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot compel the State to utilize the services of an advocate irrespective of its choice. It is for the State to select its own counsel.
The impugned order of the High Court is set aside. The appeal is accordingly, allowed."
Page 91 of 106 HC-NIC Page 91 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT
36. Thus it was not open to the respondents to file Writ Petition under Article 226 of the Constitution for compelling the appellants to utilize their services as Advocates irrespective of choice of the State. It was for the State to select its own Counsel. In view of the poor performance of the respondents in handling/conducting criminal cases, this Court is of the opinion that the High Court committed a grave error in giving direction to the District Magistrate to forward better particulars of 10 candidates whose names were included in the two panels prepared pursuant to advertisement dated 16.01.2004 and in setting aside order dated 0709 2004 of the Principal Secretary to the Chief Minister, U.P. calling upon the District Magistrate to send another panel/list for appointment to the two posts of A.D.G.C. (Criminal)."
77.1 The aforesaid decision of the Supreme Court is relied upon mainly to contend that the choice is that of the State Government and the Court should not interfere with the same. There cannot be any debate on the proposition of law, but at the same time, this judgment of the Supreme Court should not be construed as laying down a proposition of law that if the consultative process is found to be poor or defective, in any manner, and even if a person is not fulfilling the eligibility criteria, the Court should not interfere with the decision of the State Government. 78 In the case of Rajiv Ranjan Singh (supra), the writ applications were filed as the Public Interest Litigation by the two members of the Parliament. The two members of the Parliament had filed writ petitions before the High Court of Patna alleging large scale defalcation of public funds and falsification of accounts involving hundreds of crores of rupees in the Department of Animal Husbandry in the State of Bihar. It Page 92 of 106 HC-NIC Page 92 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT was alleged that consequent upon change of the Government at the Centre, attempts had been made to delay and interfere with the judicial process. It was alleged that the Public Prosecutors, who were handling the cases, were removed, and to protect the interest of the respondents, namely, Rabri Devi and Lalu Prasad Yadav, a convenient prosecutor was appointed. The Supreme Court, while dismissing the writ petitions, observed in paras 50, 51 and 52 as under:
"50. The appointment of lawyers is the prerogative of the Government and the prosecuting agency. The petitioners are trying to find fault with every attempt with every step taken. In cases like this the delay is inevitable.
51. It is also settled law that appointment of advocates, Public Prosecutors, etc. is the prerogative of the Government in power and the court has no role to play.
52. In the above case, the Standing Committee has taken a decision to appoint Munni Lal Paswani and other officers after scrutinizing the records, ACRs, etc., in accordance with Articles 233 and 235 of the Constitution of India which is the prerogative right of the Standing Committee and the High Court and when a decision is taken it is not for this Court to scrutinise the correctness of the decision, that too at the instances of third parties."
78.1 The aforenoted decision is relied upon once again to fortify the submission that appointment of the Public Prosecutor is the prerogative of the Government in power and the Court has no role to play. This decision should not be understood as laying down a proposition of law that the Court can never look into the legality and validity of the appointment of a Public Prosecutor by the State Government. In the facts of that case, the Supreme Court took the view that mere change of the Page 93 of 106 HC-NIC Page 93 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT Public Prosecutor was not sufficient to find fault with the State Government.
79 In the case of Registrar General, High Court of Madras (supra), the issue before the Supreme Court was one of selection and elevation to the office of a High Court Judge. In this case, the collegium of the Madras High Court recommended a list of twelve persons comprising of ten advocates and two District Judges for consideration for collegium of the Supreme Court for appointment as Judges of the Madras High Court. The writ petitioner, a senior advocate at the Bar, filed a writ petition seeking a direction to the Union of India and the Supreme Court, Collegium, to return the said list as the recommendees therein were not suitable for elevation, according to the assessment of the writ petitioner and other members of the Bar. A Division Bench of the Madras High Court entertained the writ petition and passed an interim direction to maintain the status quo. Aggrieved, the Madras High Court, through the Registrar General, preferred a Special Leave Petition before the Supreme Court . The Supreme Court made the following observations in paras 24 and 25:
"24. In Special Reference No. 1 of 1998, this Court held: (SCC p.768, para 32) "32. Judicial review in the case of an appointment or a recommended appointment, to the Supreme Court or a High Court is, therefore, available if the recommendation concerned is Page 94 of 106 HC-NIC Page 94 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT not a decision of the Chief Justice of India and his seniormost colleagues, which is constitutionally requisite. They number four in the case of a recommendation for appointment to the Supreme Court and two in the case of a recommendation for appointment to a High Court. Judicial review is also available if, in making the decision, the views of the seniormost Supreme Court Judge who comes from the High Court of the proposed appointee to the Supreme Court have not been taken into account. Similarly, if in connection with an appointment or a recommended appointment to a High Court, the views of the Chief Justice and senior Judges of the High Court, as aforestated, and of Supreme Court Judges knowledgeable about that High Court have not been sought or considered by the Chief Justice of India and his two seniormost puisne Judges, judicial review is available. Judicial review is also available when the appointee is found to lack eligibility." (emphasis supplied)
25. Thus, it is apparent that judicial review is permissible only on assessment of eligibility and not on suitability. It is not a case where the writ petitioners could not wait till the maturity of the cause i.e. decision of the collegium of this Court. They took a premature step by filing writ petitions seeking a direction to Union of India to return the list sent by the collegium of the Madras High Court without further waiting its consideration by the Supreme Court collegium. Even after the President of India accepts the recommendations and warrants of appointment are issued, the Court is competent to quash the warrant as has been done in this case of Shri Kumar Padma Prasad v. Union of India & Ors., AIR 1992 SC 1213 wherein the recommendee was found not possessing eligibility for the elevation to the High Court as per Article 217(2). This case goes to show that even when the President, has appointed a person to a constitutional office, the qualification of that person to hold that office can be examined in quo warranto proceedings and the appointment can be quashed. (See also: B.R. Kapur v. State of Tamil Nadu)"
79.1 This decision is relied upon to contend that judicial review is permissible only on assessment of the eligibility and not on the suitability. I have discussed this aspect at length in my judgment. This decision, in no manner, is helpful to the learned Advocate General. Page 95 of 106 HC-NIC Page 95 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT 80 In Central Electricity Supply Utility (supra), one D was appointed as the CEO of the CESU. The respondent No.5 therein was appointed as Chairman of the management Board of the CESU without any remuneration. D resigned from the post of CEO. With the intention of ensuring the smooth functioning of the CESU, the State Electricity Regulatory Commission decided to entrust the functions, duties and responsibilities of the CEO to the respondent No.5. A Public Interest Litigation was filed with a prayer for issue of writ of quo warranto for quashing of the order of the Commission entrusting the functions of the CEO of the CESU to the respondent No.5. The High Court quashed the appointment of the respondent No.5. The CESU preferred an appeal before the Supreme Court. While allowing the appeal, the Supreme Court in paras 21 and 47 observed as under:
"21. From the aforesaid exposition of law it is clear as noon day that the jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. That apart, the concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality or correctness of the action should not be allowed to have any entry, for such allowance is likely to exceed the limits of quo warranto which is impermissible. The basic purpose of a writ of quo warranto is to confer jurisdiction on the constitutional courts to see that a public office is not held by usurper without any legal authority."
"47. The whole thing has to be scrutinized from the point of view of power. Suitability or eligibility of a candidate for appointment to a post is within the domain of the appointing authority. The only thing that can be scrutinized by the Court is whether the appointment is contrary to the statutory provisions/rules."Page 96 of 106
HC-NIC Page 96 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT 80.1 In the aforenoted decision, the Supreme Court took the view that no case was made out for a writ of quo warranto since the Commission had the authority to make temporary arrangement and the respondent No.5 was otherwise eligible for the said purpose. This decision also, in no manner, is helpful to the learned Advocate General. 81 In the case of Hari Bansh Lal (supra), an appeal was preferred against the judgment and order passed by the High Court of the Chairman allowing a Public Interest Litigation, and thereby, quashing the appointment of Hari Bansh Lal, as the Chairman of Jharkhand State Electricity Board. The Supreme Court, while allowing the appeal, observed in paras 15, 16 and 19 as under:
"15. The above principles make it clear that except for a writ of quo warranto, Public Interest Litigation is not maintainable in service matters.
16. A writ of quo warranto lies only when appointment is contrary to a statutory provision. In High Court of Gujarat and another v. Gujarat Kishan Mazdoor Panchayat and others, (2003) 4 SCC 712 : (AIR 2003 SC 1201 : 2003 AIR SCW 1578), (threeJudge Bench) Hon'ble S.B. Sinha, J. concurring with the majority view held :
"22. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one. While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact of the candidates or other factors which may be relevant for issuance of a writ of certiorari . (See R. K. Jain v. Union of India, SCC para 74) : (AIR 1993 SC 1769 : 1993 AIR SCW 1890) (Para 74).
23. A writ of quo warranto can only be issued when the appointment is contrary to the statutory rules. (See Mor Modern Coop. Transport Society Ltd. v. Financial Commr. and Secy. to Govt. of Haryana) (AIR 2002 SC 2513 : 2002 AIR SCW 2826).""Page 97 of 106
HC-NIC Page 97 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT "19. It is clear from the above decisions that even for issuance of writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules. In the later part of our judgment, we would discuss how the appellant herein was considered and appointed as Chairman and whether he satisfied the relevant statutory provisions." 81.1 The above decision is relied upon once again to make good the argument that the suitability or otherwise of a candidate for appointment to a post is the function of the appointing authority and not of the Court unless appointment is contrary to the statutory provisions/rules. This aspect of eligibility and suitability has been dealt with by me at length.
82 In the University of Mysore (supra), a writ of quo warranto was prayed for, calling upon one Anniah Gowda to show cause as to under what authority he was holding the post of the Research Reader in English in the Central College, Bangalore. The Supreme Court, while allowing the appeals, observed in paras 6 and 7 as under:
"6. The judgment of the High Court does not indicate that the attention of the High Court was drawn to the technical nature of the writ of quo warranto which was claimed by the respondent in the present proceedings, and the conditions which had to be satisfied before a writ could issue in such proceedings.
7. As Halsbury has observed*:
"An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined."Page 98 of 106
HC-NIC Page 98 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not." 82.1 The aforenoted decision is relied upon to make good the submission that once the appointment has been made in accordance with law, then the holder of a public office cannot be said to be an usurper of the office. This decision is also not helpful to the learned Advocate General, in any manner, except the principle of law with which there cannot be any dispute.
83 I shall now look into the decisions relied upon by Mr. Thakkar, the learned senior advocate appearing for the respondent No.3. 84 Mr. Thakkar placed strong reliance on the decision of the Supreme Court in the case of Mahesh Chandra Gupta (supra). This decision has Page 99 of 106 HC-NIC Page 99 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT been dealt with by me at length. This decision in a way, in my opinion, helps the writ applicants so far as the eligibility part is concerned. This decision takes the view that fitness of a person to be so appointed would include his character, his integrity, his competence, his knowledge and his like. All these can be looked into only if there is a proper and effective consultative process, which in the present case, is thoroughly lacking.
85 In the case of Awani Kumar Upadhyay (supra), the issue before the Supreme Court was with regard to some strictures passed by the High Court against a Civil Judge, Senior Division in a second appeal. While allowing the appeal, the Supreme Court took the view that in the facts of that case, the remarks were unwarranted and deserved to be expunged as the same were made behind the back of the Civil Judge. This decision is relied upon to make good his argument that the remarks passed by the Supreme Court against the respondent No.3 should be ignored as the same were passed behind the back of the respondent No.3, and no opportunity was given to the respondent No.3 to explain from his point of view. I am afraid, by relying on this decision of the Supreme Court, such argument cannot be said to be fortified in any manner. First it is too late in the day for the respondent No.3 to contend that such remarks were passed by the Supreme Court behind his back Page 100 of 106 HC-NIC Page 100 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT and without any materials, and secondly, as noted above, at no point of time, in the past eleven years, the respondent No.3 thought fit or mustered the courage to go before the Supreme Court with a prayer to expunge such remarks.
86 The decision in the case of Om Prakash Chautala (supra), the same principle has been explained by the Supreme Court like the one, referred to above. This decision is also not helpful. 87 In Vinoy Kumar (supra), the Supreme Court held that a person shall have no locus standi to file a writ petition if such person was not personally affected by the impugned order or his fundamental rights had neither been directly or substantially invaded. The Court held that the exception to the general rule was only in cases where the writ applied for is a writ of habeas corpus or quo warranto or filed in public interest. In the facts of that case, the petition was ordered to be dismissed. This decision is also not helpful, in any manner, to the respondent No.3. 88 If the State Government would have been little careful, then probably, the litigation of the present type could have been easily avoided. As observed by Lord Denning in one of his Hamlyn Lectures on Freedom under the law that the Government sometimes do things which they ought not to do; and will not do things that they ought to do. There Page 101 of 106 HC-NIC Page 101 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT should not be any element of political consideration in the matters, like appointment to the post of Public Prosecutor, etc. The only consideration for the Government should be the merit of the person. The person should be, not only just competent, but he should be a man of impeccable character and integrity. He should be a person, who should be able to work independently without any reservations dictates or other constraints.
89 The relations between the Public Prosecution service and the judiciary are the very cornerstone of the criminal justice system. Public Prosecutors, who are responsible for conducting prosecutions and may appeal against the Court decisions, are one of Judges' natural counterparts in the trial proceedings and also in the broader context of management of the system of criminal law. The issue in hand has a direct impact on the judiciary. It is said that a man is known by the company he keeps. A Nation is known by the judiciary it has. The worth of a nation is measured by its judiciary which is seen as the ultimate keeper of a nation's conscience. Ours is such a judiciary. Let no harm be fall upon the judiciary in any manner.
90 MY FINAL CONCLUSION IS AS UNDER:
(1) The words "in his opinion fit to be appointed as Public Prosecutor" are not to be construed in the sense of a mere Page 102 of 106 HC-NIC Page 102 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT discretionary power, but in the context of the words "in consultation with the Sessions Judge" imposes a statutory duty to examine the fitness and suitability of the persons as one of the important eligibility criteria or statutory requirements. The words "in the opinion" does not mean purely subjective determination by the District Magistrate. It is not correct to say that the words "in the opinion" leave the matter entirely at the subjective will of the District Magistrate and the High Court cannot interfere in appropriate cases even when there is a failure to comply with the legal requirements or the decision is not in public interest.
(2) The Public Prosecutor holds a "public office". He holds the public office within the scope of a "quo warranto".
(3) Apart from the eligibility criteria provided by Section 24 (7) of the Code and the rules so far as the appointment as the Public Prosecutor is concerned, the other important eligibility criteria is that such persons should be "fit" to be appointed.
(4) The institutional integrity of the institution of the Public Prosecutor should be kept in mind while recommending the name of the candidate. Appointment to the post of a Public Prosecutor must satisfy, not only the eligibility criteria of the candidate, but also the decision making process of the recommendations.Page 103 of 106
HC-NIC Page 103 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT (5) The present writ applications are not hit by the doctrine of res judicata. The writ application earlier filed in public interest was dismissed only on the ground of lack of bona fide on the part of the petitioner.
(6) The "fitness" of the empanelled advocates must also be examined by the Government before appointing one of them as the Public Prosecutor.
(7) The allotment of marks or the marksheet alone can never be construed as an expression of opinion as regards the "fitness" and "suitability".
(8) The District Magistrate as well as the District and Sessions Judge must express their respective opinions in writing and such opinions must reflect what was considered and how. (9) The written opinion should also indicate whether any adverse material had come to their notice and was looked into and discussed.
(10) Having regard to the materials on record, the case in hand is one of lack of effective consultation.
91 For the foregoing reasons, all the three writ applications are Page 104 of 106 HC-NIC Page 104 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT allowed. As a sequitur, the appointment of the respondent No.3 as the Government PleadercumPublic Prosecutor is quashed. It is open to the Government to call for a fresh panel from the District Magistrate for appointment to the post of Government PleadercumPublic Prosecutor. In case a fresh panel is called for, the District Magistrate shall, in the light of the observations made hereinabove, prepare a panel a fresh in accordance with law, and forward the same to the Government for its consideration. Pending the appointment of the Government Pleader cumPublic Prosecutor a fresh, it is open to the authority concerned to make an interim arrangement till the appointment is made a fresh. 92 A copy of this judgment shall be circulated among all the District Magistrates and Principal District Judges across the State with a note that all future appointments shall be made in consonance with what has been observed hereinabove. One copy shall also be sent to the Principal Secretary, Legal Department, State of Gujarat at Gandhinagar. 93 In view of the order passed in the main matter, the connected Criminal Miscellaneous Application is also disposed of.
(J.B.PARDIWALA, J.) FURTHER ORDER After the order is pronounced, Mr. P.R. Thakkar, the learned advocate appearing for the appointee prays for stay of the operation of Page 105 of 106 HC-NIC Page 105 of 106 Created On Sat Oct 31 02:44:08 IST 2015 R/SCR.A/3734/2015 CAV JUDGMENT this order. In view of what has been stated above, the request is declined.
(J.B.PARDIWALA, J.) chandresh Page 106 of 106 HC-NIC Page 106 of 106 Created On Sat Oct 31 02:44:08 IST 2015