Bombay High Court
Prabhakar S/O Ganpat Gedam vs The State Of Maha., Through Principal ... on 21 September, 2017
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
PUBLIC INTEREST LITIGATION NO.148/2016
PETITIONER: Prabhakar s/o Ganpat Gedam,
Aged about 52 years, Occ. Cultivation and
Social Worker, R/o Katlabodi, Tehsil
Korpana and Dist. Chandrapur.
...VERSUS...
RESPONDENTS: 1. The State of Maharashtra, through
its Principal Secretary Department of
Law and Judiciary Mantralaya,
Mumbai - 32.
2. The Advocate General Maharashtra,
1st Floor, Annexure Building, Bombay
High Court, Mumbai. (Deleted)
Amended/deleted as per this Hon'ble
Court's order dt. 29/9/16.
3. The Collector and District Magistrate,
Chandrapur and District Chandrapur.
4. Prashant Gajanan Ghattuwar,
Aged about 50 years, Occ. Advocate,
R/o Vithal Mandir Ward, Chandrapur.
5. Madhuri Nanaji Thuse,
Aged about 37 years, Occ. Advocate,
R/o House No.598, Gauri Talav Road,
Babupeth Ward, Chandrapur.
6. Govind Arjun Urale,
Aged about 54 years, Occ. Advocate,
R/o Near Sapna Talkies Marg, Chandrapur.
7. Milind Madhusudan Deshpande,
Aged about 56, Occ. Advocate, R/o Warora,
Tahsil Warora and Dist. Chandrapur.
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8. Asif Sattar Sheikh,
Aged about 37 years, Occ. Advocate,
R/o Arvind Nagar Mul road, Chandrapur.
9. Rajaiya Sudhakar Degawar,
Aged about 43, Occ. Advocate, R/o Near
Jai Bhim Chowk, Kannamwar Ward,
Ballarpur, Tehsil Ballarpur and Dist.
Chandrapur.
10. Sandeep Bapurao Nagpure,
Aged about 39 years, Occ. Advocate,
R/o Balaji Ward No.2, Chandrapur.
11. Swati Ashok Deshpande,
Aged about 38 years, Occ. Advocate,
R/o Ganesh Nagar, Near Ganesh Mandir,
Tukum, Chandrapur.
12. Devendra Vishwanath Mahajan,
Aged about 41 years, Occ. Advocate,
R/o Shrikrupa Colony, Jagannath Baba
nagar, Datada Road, Chandrapur.
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Shri S.O. Ahmed, Advocate for petitioner
Shri S.P. Dharmadhikari, Senior Advocate with Shri M.K. Pathan, AGP for
respondent nos.1 to 3
Shri S.Y. Deopujari, Advocate for respondent no.4
Shri N.S. Deshpande, Advocate for respondent nos.5 & 11
Shri S.V. Sirpurkar, Advocate for respondent no.6
Shri U.P. Dable, Advocate for respondent no.7
Shri S. Zia Quazi, Advocate for respondent no.8
Shri R.H. Chandurkar, Advocate for respondent no.9
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CORAM : B.P. DHARMADHIKARI AND
ARUN D. UPADHYE, JJ.
Date of reserving the judgment : 24.08.2017
Date of pronouncing the judgment : 21.09.2017
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JUDGMENT (PER : ARUN D. UPADHYE, J.)
1. Heard. Rule. Rule made returnable forthwith. The public interest litigation is heard finally with the consent of the learned Counsel for the parties.
2. The petitioner has filed this public interest litigation under Article 226 of the Constitution of India and prayed following reliefs :-
"(i) To entertain this petition as Public Interest Litigation.
(ii) Quash and set aside the notifications dated
23/03/2016, 03/05/2016 and 10/05/2016
(Annexure-N) issued by the respondent no.1.
(ii) Direct the respondent No.1 to cancel the
appointments of the respondent No.4 to 12."
3. The present writ petition is registered as Public Interest Litigation. The petitioner is a citizen of India and resident of Katlabodi, Tah. Korpana, District Chandrapur. He claims to be social worker and has no any personal interest in the subject matter of the petition.
4. Respondent no.1 is State of Maharashtra and respondent no.3 is Collector and District Magistrate, Chandrapur. Respondent nos.5 to 12 are appointed as District Government Pleader and Public Prosecutor and Assistant Government Pleaders and Additional Public Prosecutors of District Chandrapur.::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 :::
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5. The petitioner has submitted that on 16/9/2015, Legal Advisor and Joint Secretary, Law and Judiciary Department, Mumbai vide letter No.DGP-2015/CR-84/Desk-14, dated 16/3/2015 invited panel of Advocates for appointment of candidates on the post of Public Prosecutors and Additional Public Prosecutors from all Districts and Sessions Courts except Mumbai area under the provisions of Order XXVII of Code of Civil Procedure, 1908, Section 24 (3) of the Code of Criminal Procedure and Rule 13 of the Maharashtra Law Officers (Appointment, Conditions of Service and Remunerations) Rules, 1984 and amendment made vide Notification dated 3/2/2015 and corrigendum to this Notification dated 13/2/2015. It is further submitted that on 17/3/2015 the respondent no.3 - District Magistrate, Chandrapur vide letter bearing No.MAG/KARYA-8/T-1/2015/98 sent a letter to the President of Bar Association of the District for inviting applications for the appointment of lawyers on the post of District Government Pleader and Public Prosecutor and Assistant Government Pleader and Additional Public Prosecutor in the District of Chandrapur. In the said letter the District Magistrate has mentioned the eligibility criteria and qualification for the lawyers applying for the said post. The proforma application form to be filled by the candidates was uploaded on website, i.e., form - I and the copy of proforma A-1 to be filled in by the Principal District Judge and copy of the ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 5 proforma - A to be filled in by the District Magistrate.
6. The petitioner further submitted that respondent no.3 published list of the candidates who are eligible and who are not eligible for the post of Public Prosecutor and Additional Public Prosecutor. It is submitted that out of 14 candidates for one post of District Government Pleader and Public Prosecutor three candidates were selected after interview and out of 61 candidates for the eight posts of Additional Public Prosecutor and Assistant Government Pleader 24 candidates were selected after interview. The petitioner has contended that three candidates who were selected after interview for one post of the District Government Pleader and Public Prosecutor were (1) Advocate Ambatkar (2) Advocate Munghate and (3) Advocate Ghattuwar. According to petitioner, proforma A-1 which was filled in and signed by the Principal District and Sessions Judge at Chandrapur giving details about the general reputation, remarks about suitability for the appointment of candidate as District Government Pleader and Public Prosecutor, experience, knowledge of law, performance and conduct. It is submitted that it is mentioned in the said proforma A-1 that Advocate Shri Sharadchandra Rajeshwar Ambatkar is most suitable to be appointed as District Government Pleader and Public Prosecutor and he was strongly recommended. As per said proforma A-1 filled in by Principal District and Sessions Judge, ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 6 Chandrapur it was mentioned that Advocate Shri Sanjeev Jeevanrao Munghate is eligible to be appointed as District Government Pleader and Public Prosecutor and he may be considered. It was also mentioned in the said proforma that he is working as Assistant Government Pleader since 8/9/2000 having experience of 24 years working and his knowledge of law is excellent. So far as respondent no.4 - Advocate Prashant Gajanan Ghattuwar is concerned, it is mentioned that he has not conducted any remarkable case in Court of Sessions and not appeared in criminal appeals and civil appeals. It is mentioned that he is not recommended by most of the Judicial Officers, he was not suitable and hence, he is not recommended.
7. The petitioner has submitted that proforma-A filled in by District Magistrate at Chandrapur giving details regarding the general reputation, remarks about suitability for the appointment of candidate as District Government Pleader and Public Prosecutor is concerned, it is mentioned that reputation of Advocate Shri Sharadchandra Rajeshwar Ambatkar is excellent. He may be considered to be appointed as District Government Pleader and Public Prosecutor and also mentioned that learned Principal District and Sessions Judge has recommended him. So far as Advocate Shri Sanjeev Jeevanrao Munghate is concerned, it is mentioned that his conduct is good and though he was recommended by ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 7 learned District and Sessions Judge as eligible to be appointed as District Government Pleader and Public Prosecutor and mentioned that he may be considered but is not recommended. However, he has not given any reason for the same. As regards Advocate Shri Prashant Gajanan Ghattuwar, the learned District Magistrate has mentioned that he is having excellent reputation but it is mentioned that he has not been recommended by the learned Principal District and Sessions Judge. However, he is strongly recommended but has not given any reason.
8. The petitioner has contended that insofar as respondent nos.5 to 12 are concerned, the Principal District and Sessions Judge has given report in respect of respondent no.7 that he is not recommended but surprisingly ignoring the said fact the District Magistrate has given opinion about respondent no.7 as strongly recommended. Respondent no.7 was beyond age of 55 years at the time of appointment as Assistant Government Pleader/Additional Public Prosecutor in violation of provisions of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984.
9. The petitioner has also submitted that so far as respondent no.7 is concerned, the Principal District and Sessions Judge has not recommended his name, but the District Magistrate has strongly recommended his name. So far as respondent no.11 is concerned, the ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 8 Principal District and Sessions Judge has not recommended him, but the District Magistrate has given opinion that he may be considered. According to the petitioner, respondent nos.7, 9 and 11, who were not recommended by the learned Principal District and Sessions Judge, came to be selected and appointed as Assistant Government Pleader and Additional Public Prosecutor.
10. The petitioner has also submitted that form - I which is proforma-A to be filled in by the candidate applying for the said post the respondent no.7 has filled in column no.11 and answered as 'yes'. However, he has not given details of the criminal cases. In proforma - I filled in by respondent no.4 he has mentioned in column no.8 (b) that he appeared in 200 civil cases and conducted 750 criminal matters before the learned Judicial Magistrate First Class and Civil Judge Junior Division, 140 civil matters and 280 criminal matters before the learned District and Sessions Judge. However, he has not given the total number of session cases in criminal appeals/revisions conducted before the Sessions Judge in column no.8 (c).
11. It is further submitted that the panel for interview of the candidates has consisted of District Magistrate and representative of Advocate General. According to the petitioner, 20 marks were to be given to the candidates. Out of that, ten marks were to be given by District ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 9 Magistrate and 10 marks by the representative of the Advocate General. According to him, on what basis the numbers were allotted to the candidates is not mentioned by the Panel Members. It is further submitted that the District Magistrate has forwarded his report regarding selection of District Government Pleader and Public Prosecutor and Assistant Government Pleader and Additional Government Pleader to the Principal Secretary Law and Judiciary Department, Mantralaya, Mumbai. The said report was kept before the panel of Hon'ble Law Minister, Principal Secretary Department of Law and Judiciary, Mantralaya and Advocate General. In view of the said report submitted by the learned District Magistrate the respondent no.4 - Advocate Shri Prashant Ghattuwar came to be selected and appointed as District Government Pleader and Public Prosecutor on 3/5/2016 and five Assistant Government Pleaders and Additional Public Prosecutors were selected and appointed by list dated 23/3/2016 and two Assistant Government Pleaders and Additional Public Prosecutors were selected and appointed by list dated 3/5/2016 and one candidate was selected as Assistant Government Pleader and Additional Public Prosecutor by list dated 10/6/2016. Accordingly, in the aforesaid manner, one District Government Pleader and Additional Government Pleader and eight Assistant Government Pleaders and Additional Public Prosecutors came to be appointed and selected.
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12. The petitioner has contended that appointment of respondent no.4 and respondent nos.7, 9 and 11 has been done in total violation of law laid down by the Hon'ble Supreme Court. The respondents - authorities have exceeded their jurisdiction. The petitioner has filed the present petition in the public interest for public good and not for interest of individual and prayed for relief as sought for.
13. Respondent no.6 has filed his reply-affidavit on 14/11/2014 and submitted that no single allegation has been made against him and therefore, public interest litigation deserves to be dismissed.
14. Respondent no.4 has filed his affidavit-in-reply on 18/12/2016 and denied the adverse allegations made against him. According to him, challenge to the notification dated 23/3/2016 issued by respondent no.1 appointing him as District Government Pleader and Public Prosecutor is without any substance and liable to be rejected. According to him, learned Principal District and Sessions Judge, Chandrapur filled proforma A-1 on 12/10/2015. However, on what basis and material he has mentioned recommending or not recommending the candidate for appointment to the post of District Government Pleader is not explained. It is further submitted that the learned Principal District and Sessions Judge never called the respondent and asked to furnish ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 11 details about cases handled by him. According to him, Advocate Shri Sharadchandra Ambatkar was working as a District Government Pleader since 21/6/2002 and therefore, his work has been considered by the learned Principal District and Sessions Judge. According to him, he is practicing as a private practitioner. He has also handled criminal cases in various Courts and not got much occasion and opportunity to appear before the learned Principal District and Sessions Judge, Chandrapur. It appears that learned Principal District and Sessions Judge only because this respondent did not conduct cases before him, has mentioned that he has not conducted session trials and also criminal appeals or civil appeals. However, he does not know opinion given by most of the Judicial Officers. According to him, there was no material before the learned Principal District and Sessions Judge for not recommending his name. He further submitted that he practiced as Advocate since 1995 under the guidance of eminent lawyer Shri T.B. Deshkar. He worked in the office of Senior Advocate till the year 2001 and assisted in various session cases. He started independent practice from 2001-02 and dealt with various civil cases, revenue cases, criminal cases, consumer complaints and appeals in School Tribunal till 2008. He was appointed as a Law Officer on contract basis by order dated 9/6/2008 and worked w.e.f. 11/6/2008 till 20/8/2010. During that period sufficient criminal cases were conducted ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 12 by him. He practiced as Advocate almost for 21 years. According to him, his name was strongly recommended by District Magistrate, Chandrapur. He is appointed as Government Pleader, Chandrapur w.e.f. 3/5/2016. According to him, in the matter of selection apart from recommendations of the learned District and Sessions Judge his overall performance was found to be good by the Committee.
15. According to him, as per the provisions of Section 24 of the Code of Criminal Procedure, the requirement of having primacy of opinion or of the consultation with the District and Sessions Judge in the matter of selection and appointment of District Government Pleader and Public Prosecutor is not contemplated and the power is conferred upon the Government under Sub-Rule (3) of Rule 13 of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984 to select and appoint a person from a panel of Advocates prepared under Sub-Section (4) of Section 24 of the Code of Criminal Procedure, 1973. According to him, in the present case, the procedure is duly followed and there is no violation of the provisions of Section 24 of the Code of Criminal Procedure and the Rules framed for selection and appointment of this respondent to the post of District Government Pleader and Public Prosecutor. It is further submitted that the petitioner has failed to show that the appointment of this respondent is political appointment ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 13 as alleged by him. No case is made out by the petitioner for quashing and setting aside the appointment of this respondent. Lastly, he submitted that the public interest litigation be dismissed.
16. Respondent no.7 has filed affidavit-in-reply and denied all the adverse allegations made against him in the petition. It is submitted that the petitioner has nothing to do with the legal profession and he has no locus standi to assail the impugned notification. It is submitted that though allegations are made in the petition that appointments are political but the same are not substantiated by the petitioner. He, therefore, submitted that the public interest litigation is liable to be dismissed and the same may be dismissed.
17. It is submitted that as per the amended provisions of Section 24 of the Code of Criminal Procedure and amended Rule 13 of the Maharashtra Law Officers (Appointment, Conditions of Service and Remunerations) Rules, 1984, the consultation of the Sessions Judge is no more requirement for appointment of Assistant Government Pleader. It is submitted that he had applied for the post of Assistant Government Pleader. At the time of petition, he was 54 years old and his date of birth is 1/12/1960. He also mentioned in column no.11 that one criminal case was pending against him but he has not given the details of the same. According to him, said case was bearing Crime No.73/2008 under ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 14 Sections 143, 341 of Indian Penal Code read with 135 of the Bombay Police Act. The said case was not pertaining to moral turpitude and no serious offences were alleged against him and the said case was of a public agitation. He also submitted that he appeared in the interview and after finding his performance satisfactory, he was recommended by the panel of the Advocates for the post of Assistant Government Pleader. According to him, he has not suppressed any material facts at the time of submitting application and nobody was knowing as to when the appointments would be done. According to him, criteria of 55 years of age would be for applying to the post of Assistant Government Pleader and lastly it is submitted that the public interest litigation be dismissed.
18. Respondent no.8 has filed his reply-affidavit and denied all the adverse allegations made against him in the petition. It is submitted that by virtue of amended provisions of Section 24 (4) of the Code of Criminal Procedure, the first requirement is that the District Magistrate shall prepare a panel of the names of the persons who are in his opinion fit to be appointed as Public Prosecutor or Additional Public Prosecutor for the Districts. The second requirement is that the said panel of names of the persons shall be prepared with the approval of the State Government. In the instant case, both these requirements are fulfilled and therefore the appointments are made strictly in accordance with the ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 15 provisions of law. According to him, he is strongly recommended even by the Sessions Judge and lastly, it is submitted that the public interest litigation be dismissed.
19. Respondent no.9 has filed her affidavit-in-reply and opposed the public interest litigation. It is submitted that the present public interest litigation filed by the petitioner is nothing but abuse of process of law and therefore, the same is liable to be dismissed. According to her, the appointments are made strictly in accordance with the provisions of Section 24 of the Code of Criminal Procedure and provisions of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984 and amended by notification dated 3/2/2015 and corrigendum dated 13/2/2015. Lastly, it is submitted that the present public interest litigation deserves to be dismissed.
20. Respondent no.11 has filed her affidavit-in-reply and objected the claim of the petitioner. According to her, the appointments are made strictly in accordance with law. She further submitted that she was not recommended by the Sessions Judge but said recommendation is of no avail and lastly, it is submitted that the public interest litigation be dismissed.
21. Respondent no.5 has filed her affidavit-in-reply and submitted that she was recommended by the Sessions Judge (may be ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 16 considered) but said recommendation is of no avail. It is submitted that she was strongly recommended by the District Magistrate for the post of Assistant Government Pleader and therefore, the public interest litigation be dismissed.
22. Respondent no.1 has filed affidavit-in-reply through Joint Secretary Law and Judiciary Department, Nagpur. In the said reply- affidavit it is submitted that in the present petition the public interest is not involved, the petitioner has no locus standi and the same is liable to be dismissed. It is submitted that the respondent no.4 was appointed for the post of District Government Pleader and Public Prosecutor and respondent nos.5 to 12 were appointed for the post of Assistant Government Pleader and Additional Public Prosecutor. It is further submitted that their appointments are transparent and following the legal procedure. Though allegations are made in the petition that the said appointments are political, wild and reckless, but no single instance has been cited to substantiate the same and therefore, the present public interest litigation deserves to be dismissed. It is submitted that on a combined reading of Section 24 (4) of the Code of Criminal Procedure read with Rule 13 of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984, it is amply clear that for the appointment of District Government Pleader and Public ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 17 Prosecutor and Assistant Government Pleader and Additional Public Prosecutor, consultation or opinion of learned District and Sessions Judge is not necessary. It is further submitted that the Committee has interviewed the candidates and thereafter respondent nos.4 to 12 were included in the said list prepared by learned District Magistrate. These respondents were appointed thereafter by the State Government. Hence, the public interest litigation is liable to be dismissed.
23. We have heard respective Counsel for the parties.
24. Learned Counsel Shri S.O. Ahmed for the petitioner has restricted his arguments to the extent of respondent nos.4, 7, 9 and 11 only. The learned Counsel has submitted that the appointments of these respondents are illegal and not in accordance with law. He further submitted that respondent no.4 is appointed as Government Pleader and Public Prosecutor of District Chandrapur though the learned Principal District and Sessions Judge, Chandrapur has not recommended his name. He relied upon proforma A-1 written by Principal District and Sessions Judge, Chandrapur. According to him, the learned District and Sessions Judge has written that he has not conducted any remarkable case in Court of Sessions nor he appeared in criminal appeals or civil appeals. He sent opinion that he is not recommended by most of the Judicial Officers. He further submitted that respondent no.7 - Milind Deshpande is also not ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 18 recommended by the learned Sessions Judge. In the proforma A-1 it is mentioned that he is not suitable and not recommended. He further submitted that insofar as respondent no.9 - Rajaiya Degawar is concerned, the learned Sessions Judge has not recommended her name and mentioned in proforma - A-1 that she is not suitable and not recommended. He further submitted that insofar as respondent no.11 - Swati Deshpande is concerned, it is mentioned in proforma A-1 that she is not suitable and not recommended.
25. It is further submitted that the District Magistrate has not considered the opinion of the Principal District and Sessions Judge and wrongly recommended the names of these persons. According to him, so far as respondent no.7 is concerned, on the date of his appointment he was beyond 55 years and therefore, his appointment is illegal. He further submitted that the Committee who conducted the interview of the candidates has not assessed the performance of the candidates and wrongly allotted the marks. Lastly, he submitted that the public interest litigation be allowed.
26. Shri S.P. Dharmadhikari, learned Senior Counsel along with Shri M.K. Pathan, learned Assistant Government Pleader has submitted that the appointments of the respondent no.4 to 12 made by the State Government are in accordance with the provisions of Section 24 (4) of the ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 19 Code of Criminal Procedure and Rule 13 of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984. The petitioner has failed to make out the case for cancellation of notification in question and therefore, the public interest litigation be dismissed.
27. The learned Counsel for respondent no.4 has submitted that consultation of Principal District and Sessions Judge is not required after amendment of Section 24 (4) of the Code of Criminal Procedure as well as Rule 13 of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984. He further submitted that the District and Sessions Judge has mentioned in column no.v to viii of proforma A-1 as "good", however, in remark column it is stated "not suitable" and "not recommended". The remark is therefore contrary to column no.v to viii of clause - 3. It further submitted that this respondent no.4 has worked as Law Officer in S.P. Office, Chandrapur and also worked as private practitioner since 1995. He therefore submitted that no importance be given to the opinion of the learned District and Sessions Judge. He also submitted that the fact that he has not worked before the Sessions Judge does not mean that he is not suitable for the said post.
28. Shri U.P. Dable, the learned Counsel for the respondent no.7- Milind Deshpande has submitted that the recommendation of the Sessions Judge is not required after amendment to Section 24 (4) of the ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 20 Code of Criminal Procedure as well as Rule 13 of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984. According to him, the learned Sessions Judge in proforma A-1 column no.v to viii has mentioned that his performance and knowledge is good and he is having 24 years experience but there is no experience in session cases and in remark column he mentioned "not suitable" and "not recommended". He also submitted that the remark is contrary to his own report. It is further submitted that in the application in column no.11 he has replied as 'yes' but has not given details of the crime. He further submitted that Crime No.73/2008 was under Sections 143 and 341 of Indian Penal Code and Section 135 of the Bombay Police Act and same is not pertaining to any moral turpitude and no serious offence is alleged and therefore nothing is wrong in his appointment. It is further submitted that at the time of submitting application he was below 55 years and therefore there is no illegality in the appointment. He therefore submitted that the public interest litigation be dismissed.
29. Shri R.H. Chandurkar, the learned Counsel for the respondent no.9 - Rajaiya Degawar has submitted that the learned Sessions Judge has given remark in proforma A-1 that she is not suitable and not recommended. However, in column no.v to viii it is mentioned that her knowledge, performance and conduct is good and having ten ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 21 years experience but she has not conducted any matter in the Sessions Court. He further submitted that as per amended provision to Section 24 (4) of the Code of Criminal Procedure recommendation of Sessions Court is not necessary and therefore her name is strongly recommended by the District Magistrate after interview and included in the panel.
30. Shri N.S. Deshpande, the learned Counsel for the respondent no.11 - Swati Deshpande has submitted that the learned Sessions Judge has given remark in proforma A-1 that she is not suitable and not recommended. However, in column no.v to viii it is mentioned that her knowledge, performance and conduct is good and having thirteen years experience but not conducted any matter in the Sessions Court. He further submitted that as per amended provision to Section 24 (4) of the Code of Criminal Procedure recommendation of Sessions Court is not necessary and therefore, her name is strongly recommended by the District Magistrate after interview and included in the panel.
31. We have considered the pleadings of the respective parties and gone through the documents placed on record. Though petitioner has challenged appointments of respondent no.4 to 12, however, he restricted his prayer so far as respondent nos.4, 7, 9 and 11 only. We are therefore considering the case against these respondents only. The impugned notification appointing other respondents is not required to be ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 22 considered.
32. It appears that the Legal Advisor and Joint Secretary, Law and Judiciary Department, Mantralaya, Mumbai vide his letter dated 16/3/2015 bearing No.DGP-2015/P.K.84/Ka-14, Law and Judiciary Department, invited panel of Advocates for appointment of the candidates for post of Public Prosecutor and Additional Public Prosecutor from all Districts of Sessions Court except Mumbai City and Mumbai Suburban area. On the basis of the said letter District Magistrate, Chandrapur has given notice on 17/3/2015 vide letter bearing No.MAG/Karya- 8/T.1/2015/98 and invited applications for appointment of lawyers on the post of District Government Pleader and Public Prosecutor and Assistant Government Pleader and Additional Public Prosecutor. Respondent no.3 published list of candidates who are eligible and who are not eligible for the post of Public Prosecutor and Additional Public Prosecutor. It further appears that out of 14 candidates for one post of District Government Pleader and Public Prosecutor three candidates were selected after interview and out of 61 candidates for the eight posts of Additional Public Prosecutor and Assistant Government Pleader 24 were selected after interview. Learned District Magistrate after obtaining consultation/opinion from the Principal District and Sessions Judge forwarded his report regarding selection of District Government Pleader ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 23 and Public Prosecutor and Assistant Government Pleader and Additional Public Prosecutor to the Principal Secretary, Law and Judiciary Department, Mantralaya, Mumbai. Thereafter, the Government considered said report and appointed respondent no.4 - Prashant Ghattuwar as District Government Pleader and Public Prosecutor on 3/5/2014 and five Assistant Government Pleaders and Additional Public Prosecutors were appointed on 23/3/2016 and two Assistant Government Pleaders and Additional Public Prosecutor were appointed on 3/5/2016 and one Assistant Government Pleader was appointed on 10/6/2016.
33. The petitioner has challenged the said notification by way of filing public interest litigation. The petitioner has come with a case that the appointments of respondent nos.4, 7, 9 and 11 are not in accordance with law and therefore, prayed for quashing and setting aside the notification (Annexure-I) issued by respondent no.1. The respondent no.1
- State as well as the contesting respondents have strongly opposed the petition by filing their replies-affidavit. They contended that consultation of Principal District and Sessions Judge is not necessary as per amended provisions of Section 24 (4) of the Code of Criminal Procedure and Rule 13 of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984. They also submitted that Principal District and Sessions Judge has given report in favour of ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 24 respondent nos.4, 7, 9 and 11 in column no.v to viii. However, in column no.3 it is written "not suitable" and "not recommended". It is submitted that there was no material before the Principal District and Sessions Judge for giving such a report. Mere fact that these respondents have not appeared before the Principal District and Sessions Judge or before the Sessions Court does not mean that they are not fit for appointment on the post of District Government Pleader and Public Prosecutor as well as Assistant Government Pleader and Additional Public Prosecutor.
34. The relevant amended provisions of Section 24 (4) of the Code of Criminal Procedure, Rule 13 of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984 and Notification dated 3/2/2015 issued by Law and Judiciary Department are reproduced as under :-
"Section 24 (4) of the Code of Criminal Procedure :-
The District Magistrate shall, "with the approval of the State Government", 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."
Rule 13 of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984 :- Appointment .- (1) Every Government Pleader referred to in clause (j) of rule 2, or Public Prosecutor or ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 25 Additional Public Prosecutor for High Court or for each district shall be appointed by Government in the Law and Judiciary Department (hereinafter in this rule referred to as "the Government").
(2) The Government shall invite applications from advocates in such manner as it thinks fit, and select from amongst the applicants a suitable candidate for appointment of-
(i) ...
(ii) ..
(iii) ...
(3) ...
(4) The Collector of every district other than the
district of the City of Bombay and the Bombay Suburban District shall invite applications from advocates in such manner as he thinks fit, for inclusion of the names of suitable candidates from amongst them, with the approval of the Government, in the panel for appointment of District Government Pleader or Additional or Assistant Government Pleader or Honorary Assistant to the District Government Pleader, or as the case may be, Subordinate Government Pleader; and the Government shall, select a candidate from the panel so prepared for any such appointment.
(5) ...
(6) ...
rd
NOTIFICATION, dated the 3 February, 2015 : -
Constitution of India.
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26
No. Sankirna-5915/(27)/D-14.- In exercise of the powers conferred by the proviso to article 309 read with article 165 of the Constitution of India, the Governor of Maharashtra is hereby pleased to make the rules further to amend the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984, as follows, namely :-
1. ...
2. ...
(i) ...
(ii) ...
(a) ...
(b) ...
(c) ...
(iii) ...
(2A) To facilitate the selection of a suitable candidate as the Government Pleader or Additional or Assistant Government Pleader or Honorary Assistant to the Government Pleader and Special Government Pleader and Additional Special Government Pleader mentioned in sub-rule (2), the Committee mentioned in column (2) against the posts mentioned in column (1) below Table, shall conduct the interviews of the candidates and recommend to the Government, the names of the candidates which in its opinion are most suitable and meritorious for the appointments.
Table
-----------------------------------------------------------------------------------
Sr. Posts Committee for conducting interviews
No.
(1) (2) (3)
------------------------------------------------------------------------------------------
1. Government Pleaders in the .. (i) Advocate General ; and High Court at Bombay and its (ii) Principal Secretary and Benches at Nagpur and Remembrancer of Legal Aurangabad. Affairs, Law and Judiciary Department, Government of Maharashtra;
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2. Government Pleaders and .. (i) the person nominated Additional or Assistant by Advocate General;
Government Pleaders for City and
Civil Court, Bombay and (ii) the Collector, Mumbai
Government Pleader, Court City ;
of Small Causes at Mumbai.
......."
35. On a plain reading of the said provisions we are of the considered view that consultation/opinion of Principal District and Sessions Judge is not required for filling the post of District Government Pleader and Public Prosecutor and Assistant Government Pleader and Additional Government Pleader. Even if the consultation is obtained by the District Magistrate as per the direction given by Legal Advisor and Joint Secretary Law and Judiciary Department, the same is not binding upon the District Magistrate as well as Government. Moreover, the remarks given by the Principal District and Sessions Judge are also not adverse against these respondent nos.4, 7, 9 and 11. The fact that they were not recommended by the Principal District and Sessions Judge does not come in their way for the appointment. It is to be noted that the State Government has followed the procedure laid down for the selection of lawyers for the panel. The District Magistrate and one member appointed by Advocate General on his behalf has taken interview of the eligible candidates and thereafter panel was prepared and the Government has selected them for the post of District Government Pleader and Public ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 28 Prosecutor as well as Assistant Government Pleader and Additional Public Prosecutor. It is to be noted that rival candidates who were interviewed and not selected have not approached the Court and challenged the appointments. The petitioner is not concerned with legal profession, however, he has filed this public interest litigation, nevertheless his petition was considered by this Court and after completion of pleadings of the parties the matter came up for final disposal.
36. The petitioner has also made grievance against respondent no.7. According to him, the respondent no.7 in column no.11 of his application has mentioned that criminal case was pending but no details were given. The respondent no.7 has filed affidavit-in-reply and answered the said allegation made against him. Respondent no.7 has clearly mentioned that said case was bearing Crime No.73/2008 under Sections 143, 341 of the Indian Penal Code, read with Section 135 of the Bombay Police Act. The said case is not pertaining to any moral turpitude and no serious offence was alleged against him. In view of that the State Government has considered the said fact and appointed him as Assistant Government Pleader and Additional Public Prosecutor and therefore, his grievance cannot be considered. It is also pointed out that respondent no.7 was more than 55 years of age at the time of appointment and therefore, his appointment was illegal. Respondent no.7 in his affidavit- ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 :::
pil148.16.odt 29 in-reply has stated that he has not suppressed any material facts at the time of submitting application and nobody was knowing as to when the appointments would be done and the criteria of 55 years of age would be for applying to the post of Assistant Government Pleader and at the time of appointment of Assistant Government Pleader the allegations made against him are therefore baseless. The Government has considered his application and thereafter he was appointed. It appears that, at the time of appointment and publishing notification he was beyond 55 years. This fact was known to the Government. Hence, the grievance of the petitioner therefore cannot be considered.
37. The learned Counsel for the petitioner has relied upon the Rulings.
(i) 2014 (1) Mh.L.J., 474 (Suresh Shamrao Kamble...Versus...State of Maharashtra and others).
(ii) 2005 (4) Mh.L.J. 326 (Neelima Sadanand Vartak...Versus...State of Maharashtra and others).
(iii) (2004) 4 Supreme Court Cases 714 (State of U.P. and another...Versus...Johri Mal).
(iv) (2016) 6 SCC 1 (State of Punjab and another...Versus...Brijeshwar Singh Chahal and another)
(v) Judgment delivered at Aurangabad Bench in Writ Petition No.9000/2016 on 6/6/2017.
The respondents also relied upon the judgments passed by this Court in Public Interest Litigation No.157/2016 dated 17/11/2016, ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 30 Public Interest Litigation No.124/2015 on 9/3/2017 and judgment in Writ Petition No.1507/2009 at Aurangabad Bench on 17/7/2009.
38. We have perused the above judgments referred to by the respective parties. The judgment relied upon by the respondent - State, i.e., Aurangabad Bench in Writ Petition No.1507/2009 decided on 17/7/2009 is squarely applicable to the case in hand. Admittedly, there is no challenge to 1981 Amendment made to Section 24 of the Code of Criminal Procedure in the State of Maharashtra. Though several judgments have been cited, the judgment of Division Bench of this Court, specifically considering the impact of that amendment, has not been demonstrated to be either erroneous or perverse. In the said judgment dated 17.07.2009 the Division Bench of this Court, in Vilas Jagannath Dhorde Patil ...Versus... State of Maharashtra - Writ Petition No.1507 of 2009 decided by a Division Bench of the Bombay High Court, Bench at Aurangabad (Coram: P.V. Hardas and R.K. Deshpande, JJ.), has observed that power to select suitable candidate from the panel of Advocates, prepared under Rule 13(4) read with Section 24(4) of the Code of Criminal Procedure, is of the State Government and it cannot be curtailed either by the District Magistrate or by High Power Committee. It cannot also be affected by the recommendations of the District and Sessions Judge. The discussion contained in paras 17 & 19 therein is sufficient for ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 31 us to conclude that in the absence of any express negative remark by the District & Sessions Judge, the State Government is free to judge suitability of enlisted candidates and to appoint them as per its choice.
The petitioner has not challenged Rules or the selection process. He also does not urge any bias or mala fides. He is not an advocate who participated in the selection process. Taking overall view of the matter, we do not find any harm or injury to general public interest in the matter. We find that the above mentioned judgment delivered at Aurangabad squarely clinches the controversy.
39. In the case of State of U.P. and another...Versus...Johri Mal (supra), the Hon'ble Supreme Court held that appointment of Public Prosecutor and District Government Counsel is in the nature of a professional engagement, governed by the provisions of Code of Criminal Procedure and relevant executive instructions but does not amount to appointment to a civil post. The Public Prosecutors are appointed for specific period not for permanent. They are representatives of Government. Thus, they represent the interest of the general public before a court of law. In the matter of engagement of District Government Counsel, however, a concept of public office does not come into play. They are not treated as public officers. They cannot claim as right to appoint. The right of appointment of Public Prosecutor is in the hand of ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 32 Government.
In the case of State of Punjab and another...Versus...Brijeshwar Singh Chahal and another (supra), the Hon'ble Supreme Court held that it is right and choice of State Government to appoint law officer. But State Government must consider and follow fairness and transparency in selection process for appointment.
40. In the case of Mahadeo Ramkisan Andhale...Versus...State of Maharashtra and others, reported at (2014) 1 Mh.L.J. 592, the Hon'ble Supreme Court held that State Government can choose and select its law officers such as Public Prosecutors and issue order accordingly. They are appointed for particular period. Granting extension on specific period, State Government has right to decide. The law officer cannot be equated with civil post. It is stand of the State that as these posts are not civil post, they have no constitutional obligation to provide reservation.
41. In the case of Kumari Shrilekha Vidyarthi and others...Versus...State of U.P. and others, reported at (1991) 1 SCC 212, the Hon'ble Supreme Court held that power of Public Prosecutor must be exercised in the interest of administration of justice and relates to public purpose, therefore, Public Prosecutor is thus holder of public office. They can continue their services. In U.P. Legal Remembrance's Manual it ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 ::: pil148.16.odt 33 clearly shows that the Government Counsel in the Districts are treated as Law Officer of the State who are holders of an "office" or "post". It is further held that the procedures of appointment, reappointment and renewal of Public Prosecutor are given under U.P. Legal Remembrance's Manual. Therefore, the Government cannot terminate the Public Prosecutor without following the procedure of Manual. If Government does not follow the procedure as per Manual or exercise the power arbitrarily, then it is violation of Article 14 of Constitution of India.
42. In the case of State of Uttar Pradesh and others...Versus...Ajay Kumar Sharma and another, reported at (2016) 15 SCC 289, it is held by the Hon'ble Supreme Court that discretion should be exercised by State on being satisfied about competence and integrity of advocates considered for appointment of Public Prosecutor, so that justice is meted out to all citizens. These appointments, being in nature of professional engagement, do not create in appointees right of continuity, reappointment, renewal or extension. Court Should be circumspect in exercise of judicial review in such matter.
43. After considering the material placed on record and after considering the legal provisions, we are of the considered view that the challenge to the "notifications" is without substance. ::: Uploaded on - 21/09/2017 ::: Downloaded on - 23/09/2017 02:08:24 :::
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44. The appointments are made as per the provisions of law. As per the amended provisions of Section 24 (4) of the Code of Criminal Procedure and Sub Rule (4) of Rule 13 of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984, the appointments are made. As per amended provisions, consultation of Sessions Judge is not requirement as said words are deleted and the words "with the approval of State Government" are added. We therefore, do not find any merit in this public interest litigation.
The public interest litigation is therefore dismissed. Rule stands discharged. No costs.
JUDGE JUDGE
Wadkar
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