Kerala High Court
Pramodh vs State Of Kerala on 23 September, 2002
Author: J.B. Koshy
Bench: J.B. Koshy, Pius C. Kuriakose
JUDGMENT J.B. Koshy, J.
1. All these Writ Appeals and Original Petition relate to appointment to the post of Public Prosecutors/Assistant Public Prosecutors Grade II. All the petitioners and contesting respondents other than the State are Advocates practising in various courts in the State. Since some of the Advocates are practising in this Court and are known to us, we asked the Advocates appearing in these cases and they stated that they have no objection in hearing the matter by this Bench. For the sake of convenience, we are mainly relying on the exhibits mentioned in O.P. 16441/99 and Annexures produced in W.A. 1681/02 unless otherwise referred to.
2. Government issued notification No. 47996/C4/97/Home dated 19.8.1997 inviting applications from eligible candidates for appointment to the post of Assistant Public Prosecutors Grade II in the scale of pay of Rs. 2060-3200 (Ext. P2 in O.P. 16157/01). The number of vacancies mentioned in the notification is 13. The above notification was published in various newspapers also to show that there was effective publication. The eligibility criteria was mentioned in paragraph B as follows:
(a)(i) Must be a graduate in Law and must not have completed 35 years of age on the first day of January 1997. (ii) Must be a member of the Bar and must have had not less than 3 years of active practice in Criminal Court on the 1st day of January 1997.
Note: Usual relaxation in upper age limit shall be allowed to candidates belonging to Scheduled Castes/Scheduled Tribes and Other Backward Classes.
In the above notification, it is stated that applications will be scrutinised by the District Collectors and selection will be made on the basis of an interview conducted by a committee of officers constituted by Government. Applications were to be in the prescribed form and the format was also published along with the advertisement and notification.
3. Appointments to the above posts of Assistant Public Prosecutor Grade II are covered by Special Rules for the Post of Legal Advisor to the Vigilance Division, Additional Legal Advisor to the Vigilance Division of Assistant Public Prosecutors. The above rules were published on 16th September, 1996. Qualification for appointment is mentioned in Clause 7 which reads as follows:
"For appointment as Assistant Public Prosecutor Grade II, a candidate shall possess the following qualifications, namely:-
(i) Must be a graduate in Law and must not have completed 35 years of age on the first day of January of the year in which applications are invited, and
(ii) Must be a member of the Bar and must have had not less than 3 years of active practice in Criminal Courts on the 1st day of January of the year in which applications are invited.
Note: Usual relaxation in upper age limit shall be allowed to candidates belonging to SCs/ STs and Other Backward Classes."
The above rule also permitted temporary appointments pending appointment of the permanent prosecutors. Apart from the above rules Executive Order G.O.(MS) No. 150/97/Home dated 30.5.1997 was issued by the Government in the matter of Assistant Public Prosecutors (produced as Annexure AI along with W.A. 1681/02). The format of application itself was prescribed by the above Government Order. As per the Government Order retirement vacancies will have to be notified 6 months prior to retirement if there is no existence of rank list at the time of retirement and every application shall be accompanied with the following documents:
(i) S.S.L.C
(ii) Community certificate from Tahsildar where the candidates belongs to Backward Classes or SC/ST.
(iii) Degree Certificate.
(iv) Certificate of practice by the Presiding Officer, of the Courts in which the candidates had practised.
4. Scrutiny of the applications shall also given very importance in the above rules as per Clause (F) which reads as follows:
"The applications will be scrutinised for defect by the District Collectors. Direct enquiries arranged by the District Collectors through of rank not less than the rank of Tahsildar as to station and standing of each applicant as an Advocate. The District Collector will make available the date of valid applications to the Superintendent of Police concerned district. The Superintendent of Police will arrange to conduct enquiry by an officer not below the rank of Circle Inspector during the enquiry, officers shall be asked to verify with the presiding officer of courts before whom the applicant has practised, written report of verification shall be made to District Collector and the Superintendent of Police respectively. The District Collector will get the report from the Superintendent of Police and then forward to Government along with his report and valid application. The District Collectors and Superintendents of Police shall forward a comprehensive report on all the applications with specific recommendation regarding eligibility of the applicant for appointment to the post of Assistant Public Prosecutor Grade II".
The persons who should be the members of the selection committee was also mentioned in Clause (G) which reads as follows:
(G) The Selection Committee shall consist of the following Officers:
(i) Additional Chief Secretary/Home Secretary;
(ii) Director General of Prosecution
(iii) Director General of Police
(iv) Additional Secretary/Joint Secretary of Home Department It is also provided that the selection will be made on the basis of an interview and the interview will be conducted at three regions viz., Thiruvananthapuram, Ernakulam and Kozhikode. Rules regarding the preparation of panel is mentioned in Clause (K) which reads as follows: "(K) The panel so prepared on approval by Government will be valid to fill up the vacancies that arise within two years from the dale of preparation of the panel.
Provided further that the Government may lake steps for the preparation of a new ranked list. Whenever necessary even before the expiry of the period of two years of the ranked list, by inviting applications but that the ranked list prepared in pursuance of the said notification shall be brought into force only after the expiry of the period of two years of the existing ranked list.
The ranked list prepared and approved by Government will in the first instance be published in such manner as Government may deem fit and thereafter they shall also be published in the Gazette and the ranked lists shall be deemed to have come into force from the date of finalisation of the lists and indiated in the list. If a candidate to whom the memo has been issued by Government for recruitment to the post does not join duty in the post in pursuance of the order of appointment it shall unless Government are satisfied that the order has not been served on the candidate, be cancelled and his name deleted from the ranked list".
5. The time-schedule is also prescribed for preparation of the panel to fill up regular vacancies. It also says that within a period of 75 days, the panel has to be prepared. Advertisement and notification inviting applications were made in terms of the Special Rules and above Government Order. The interview was conducted by the committee for about 8 days. At the time when applications were called for by notification dated 16.8.1997, neither the original Special Rules or Ext. A1 Executive Order did not contain a provision for written examination. Since large number of applications (more than 700) were received, the Government decided to conduct, a written examination as can be seen from Exts. P1 & P2. In Exts. P1 and P2, it was stated that the written test will be conducted to avoid impracticability of conducting an interview alone for selection to the post of Assistant Public Prosecutor Grade II. Ext P2 also shows that steps were taken for conducting the written test by preparing the question papers etc. But by Ext. P4, the proposal for the test was cancelled and the interview was conducted. The panel prepared for interview was not finalised by the Government for some time in view of the pendency of these Original Petitions before this Court. Finally by Gazette Publication dated 17th February, 2001, the panel was published (produced as Annexure A2) wherein it is stated that a rank list of 110 persons was prepared. It is submitted by the Government Pleader that out of the 110 persons mentioned above, 23 persons were appointed and at the time of filing the Writ Appeals there were 19 more vacancies and they are manned by temporary Public Prosecutors. We also take judicial notice of the fact that in some of the Magistrate's Courts only two days each Assistant Public Prosecutors are appearing as they have to attend two or more courts due to dearth of APPs. It is the case of some of the selected candidates that after the filing of the Writ Appeals there were also vacancies. It is not disputed that the post of Public Prosecutors/Assistant Public Prosecutors are of pivotal importance and as held by Supreme Court in Raj Deo Sharma v. State of Bihar, 2000 (1) KLT 463, that it cannot be kept vacant as it will affect the administration of criminal justice itself. Manning by temporary APPs for two or three courts also will certainly affect administration of criminal justice.
6. The major attack raised in Writ Appeals questioning the list are that (1) only 13 vacancies were notified; but list of 110 persons were prepared and appointments cannot be made to more than the notified vacancies. (2) It was contended that since there were large number of applicants, no purpose will be served by conducting an interview within a short spell. As there were larger number of candidates, the Government itself has decided to conduct a written examination as per Ext. P1 and as per Ext. P2 steps were taken to conduct the examination and for no reason, it was cancelled. (3) It was contended that only a farce of interview was conducted. (4) Finally it was contended that even if the selection was correct and a rank list can be prepared in view of the time schedule prescribed by the Government, Annexure A2 rank list should be prepared within 45 jays of the notification and if the rank list is allowed to continue forever, it will violate Article 14 of the Constitution and already 23 persons were appointed and now the rank list has expired if time is calculated as per Ext. P5 time Schedule mentioned in Annexure A1 from the date of notification calling for application. The learned Single Judge in the detailed judgment observed that written test would have been best in the circumstances. But the learned Single Judge held that the selection by interview also cannot be set aside, but life span of rank list was limited to 1.6.2000.
7. With regard to the contention that only 13 posts were notified and selection was made to more than the notified posts, that point was not pleaded or argued before the learned Single Judge. In the absence of pleadings, learned Judge did not consider that point. According to them appointments can be made only for the above notified vacancies and they relied on the decision reported in Surinder Sing v. State of Haryana (JT 2001 (5) SC 461). In this case the only vacancies at the time of notification were mentioned, but in accordance with Special Rules as well as Executive Orders, a panel was prepared and therefore the preparation of the above panel cannot be faulted. Advertisement was published in pursuance of Special Rules and procedure are governed by Executive Order (Annexure-I). As per the above, a panel valid for two years has to be prepared. It is mandatory as per the above orders so that post of Assistant Public Prosecutors will not lie vacant as administration of criminal justice is not hindered. Mere mention of vacancies existing at the time of notification will not stop the Government from preparing a panel as mentioned in the Special Rules and Government Orders. We also note that large number of Advocates applied for the post and detailed interview after scrutiny of the application was conducted. In this connection, we also refer to the decision in All India S.C. & S.T. Employees' Association v. A. Arthur Jeen (2001 (6) SCC 380). Therefore, it cannot be said that even though 13 vacancies were notified, the preparation of the panel is illegal as it was done in accordance with the Special Rules and Executive Orders validly published before advertisement was notified. Apart from the above, this point was not specifically alleged in none of the Writ Appeals also.
8. The learned Single Judge found that the interview was conducted by competent persons. After elaborately considering the records found that there is no ground for interference. The learned Single Judge held as follows:
"In the instant ease, the respondents have clearly stated that they have conducted interview in a proper manner to find out the real merit of the applicants and that they have selected the best persons out of the eligible candidates. In these circumstances, I do not find any merit in the submission of the petitioners that the method of selection by interview has, in any way, prejudiced the applicants and that the Committee did not conduct any satisfactory interview".
We also note that in Kiran Gupta v. State of U.P. ((2000) 7 SCC 719) it was held that selection based on interview only is not per se illegal. In this case candidates were advocates with minimum three years experience in the Bar and their applications were scrutinised as per Special Rules and Government Orders and after scrutiny also they were called for interview. The learned Single Judge also found that the contention of the petitioners that the process of selection is vitiated by mala fides, arbitrariness and violative of Article 14 of the Constitution is not tenable. (See paragraph 24 of me judgment). Therefore, the learned Single Judge upheld the selection process. In view of a complaint to the Vigilance, a Vigilance enquiry was also conducted and we have perused the file and the file shows that there is no material to find out that there is any malpractice in the interview and the interview was conducted properly. We note that process of selection at the time of application was notified. There was Special Rules and Executive Orders as Ext. A1 noticed above. After selection process had started, there was a proposal for written test, but it was cancelled by the Government and without questioning the cancellation, all persons including the petitioners who are challenging the select list participated in the interview. As held by the learned Single Judge, there is no material to show that the interview is in any way bad and on that ground, we cannot say that the selection is bad.
9. In one of the Writ Petitions it was contended that the age fixed for the post is 35 years as on 1.1.1997. The cut off date is mentioned clearly in the notification as well as in the Special Rules and therefore the rank list cannot be set aside because there is a cut off date provided in the application. In this connection, we refer to the decision in Jasbir Rani v. State of Punjab, (2002) 1 SCC 124, wherein it was held that in the absence of statutory provision, cut-off date can be fixed by the Government in the advertisement. Further at the time of notification itself Ext. A1 executive orders were there clearly governing the principles regarding cut-off date. We also note that petitioners who challenged it in the Original Petition participated in the interview, but were unable to get themselves selected. According to persons selected, they cannot do so in view pf the judgment of the Supreme Court in M.S. Kanjoonjamma v. V. Vasudevan (1997 (2) SLR 606). In Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127, it was held that in any event such persons cannot challenge tire selection process. We have also found that there is no merit in the challenge against the selection process.
10. It was held that the vacancies existed as on 1.6.2000 shall be filled from the select list prepared pursuant to the notification dated 19.8.1997. The reasons are stated in paragraph 34 of the judgment which we quoted as follows:
"In the instant case, the notification inviting applications for the post of A.P.P. Grade II was issued in August, 1997. The number of vacancies notified at that time was only 13. At the time of making me selection, there are more vacancies in the said posts. As per the procedure provided in the Government Order dated 30.5.1997, the selection process is a lime bound programme. In the instant case, because of the pendency of these Writ Petitions, the Government could not finalise the selection keeping in view the procedure prescribed for such selection. Had the selection been made in 1997 itself as provided in the Government Order dated 30.5.1997 and the select list published, the validity of the said list would have expired in 1999. On account of the pendency of these Writ Petitions, this did not happen. This has certainly affected the interest of the prospective applicants for the said post. It is trite that acts of Court shall not prejudice anybody. Taking into account all these circumstances and giving some laxity for the process of selection regarding time factor, I direct the Government that only the vacancies which existed as on 1.6.2000 shall be filled from the selection list prepared pursuant to the notification dated 19.8.1997. The Government will also take immediate steps for filling up the remaining vacancies, if any, as contemplated under Clause (K) of the Government Order dated 30.5.1997".
Since the questions of law were discussed very elaborately by the learned Single Judge with reference to the Apex Court decisions in this regard, we are not going into those questions as we agree with the learned Judge in those aspects except the observations in paragraph 34 of the judgment regarding the life period of the panel.
11. Now the major question to be considered is whether the observation of the learned Single Judge that the list will be applicable only for a period as mentioned in paragraph 34 or whether the rank list will be applicable for 2 years with effect from 17.2.2001 as mentioned in the notification dated 17th February, 2001 (Annexure A2).
It is contended by some of the appellants that the select list cannot be kept for long. It should be for a limited time. Then what is the limited period that is to be given. We agree that the select list shall not remain for unlimited time, but the question is what is the life span of the rank list in this regard. Annexure A1 provides clearly that the panel prepared on approval by Government will be valid to fill up the vacancies that arise within two years from the date of preparation of the panel by the Government and it shall be published in the Gazette and date shall be indicated in the list published.
Even though interview was conducted and interview committee submitted its report, the panel was prepared by the Government only subsequently. Annexure A1 clearly indicates that the list has come into force with effect from 17.2.2001. So, the panel cannot be indefinitely kept long. It can only be valid from 17.2.2001 till 17.2.2003 ie., two years as mentioned in the rule. When there is executive order before the appointments were made and the appointment were done in accordance with the panel so prepared, we are of the opinion that the panel should be in force till two years ie., from 17.02.2001 to 17.02.2003.
12. It was argued that selected candidates in the list are not made parties and hence challenge to the list cannot be entertained. (See Arun Tewari v. Zilla Mansavi Shikshak Singh (AIR 1998 SC 331) Bhagwanthi v. Subordinate Services Selection Board, Haryana (1995 Supp (2) SCC 663)). We note that in spite of an order from this Court only those persons who are appointed were made parties and those who are awaiting appointments as per the list were not made parties. But we note that some of the persons who were selected but not appointed got themselves impleaded in the Original Petition and the Writ Appeals also. Hence all points were urged and the Writ Petition challenging the list cannot be dismissed solely on the ground of non-impleadment of necessary parties.
13. Government also filed an appeal (W.A. 816/02) contending that in view of certain complaints, Government has referred the matter to the Department of Vigilance and Anti Corruption Bureau and before its report, no appointments can be made. But during the pendency of the Writ Appeals, report was received. It was entrusted to us in sealed cover and the report says that there is no merit in the complaint. Hence on this account, the panel cannot be rejected. Government also contends that Government is not bound to fill up the vacancy and Special Rules and Annexure A1 permits the Government to appoint temporary Assistant Public Prosecutors. It is true that Government cannot be asked to fill up all vacancies in ordinary circumstances. As held by the Apex Court in All India SC & ST Employees Association v. A. Arthur Jeen, (2001) 6 SCC 380, selected candidates have no defeasible right to get appointed. (See also Vinodan T. v. University of Calicut, (2002) 4 SCC 726. But as held in Raj Deo's case (supra) posts of Assistant Public Prosecutors cannot be kept vacant as it will affect the criminal justice system and administration of justice (This part of the decision was not reversed by the Constitution Bench also). No criminal case shall be adjourned or prolonged because of the absence of Assistant Public Prosecutor. Therefore, all vacancies of APP have to be filled up. When there is a valid selection list, Government is bound to appoint from the panel as temporary appointments can be made only when there is no person available for appointment from the rank list. It is settled law that Government appointments shall be made in accordance with rule and rank list cannot be scrapped during the period of its validity except for well founded reasons (See State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220 ; 1973 SCC (L&S) 488; R.S. Mittal v. Union of India, 1995 Supp (2) SCC 20; 1995 SCC (L&S) 787; (1995) 30 ATC 53; Asha Kaul v. State of J&K. (1993) 2 SCC 573; 1993 SCC (L&S) 637; (1993) 24 ATC 576; Shankersan Dash v. Union of India, (1991) 3 SCC 47; 1991 SCC (L&S) 800; (1991) 17 ATC 95; Ram Laxmibai Kshetriya Gramin Bank v. Chand Behari Kapoor; (1998) 7 SCC 469 : 1998 SCC (L&S) 1824). Hence there is no merit in these contentions raised in the appeal filed by the Government.
In the above circumstances, only paragraph 34 of the judgment of the learned Single Judge is deleted and we hold that the panel will be applicable for the period as indicated in the list, ie., from 17.2.2001 to 17.2.2003. In all other respects, the judgment of the learned Single Judge is confirmed and all the Writ Appeals and the Original Petition are disposed of accordingly.