Calcutta High Court (Appellete Side)
Saroj Kanti Mukherjee vs State Of West Bengal & Ors on 9 December, 2013
Author: Debangsu Basak
Bench: Ashim Kumar Banerjee, Debangsu Basak
Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Ashim Kumar Banerjee
And
The Hon'ble Mr. Justice Debangsu Basak
W.P No. 21742 (W) of 2011
Saroj kanti Mukherjee
Vs.
State of West Bengal & Ors.
With
W.P No. 1283 (W) of 2012
Amitabha Ghosh
Vs.
State of West Bengal & Ors.
For the Petitioner : Mr. Priyabrata Ghosh
(in W.P. No. 21742 (w) of 2011) Ms. Sulekha Mitra
For the Petitioner : Mr. Pratik Dhar
(in W.P. No. 1283 (w) of 2012) Mr. Ritwik Pattanayak
Mr. Samir Halder
For the Respondent No. 7 : Mr. Bidyut Banerjee, Senior
Advocate
(in W.P. No. 21742 (w) of 2011) Ms. Shila Sarkar
For the State : Mr. Shyamal Sanyal
(in W.P. No. 21742 (w) of 2011)
Heard on : November 26, 27 and 28, 2013
Judgment on : December 9, 2013
DEBANGSU BASAK, J.
A litigant has a right to choose his lawyer. Would the State when it is a litigant, lose such right?
Two writ petitions are being heard together as they involve common questions.
Writ Petition No. 21740 (W) of 2012 relates to appointment of Public Prosecutor, Assistant Public Prosecutor, Government Pleader/Advocate in the district of purulia.
W.P. No. 1283 (W) of 2011 relates to similar appointments in the district of Birbhum.
Re:- Purulia Mr. Priyabrata Ghosh contended, Section 24 of the Criminal Procedure Code was violated in the appointment of Public Prosecutor and like post. He relied on page 35A of the writ petition to contend, the earlier panel was cancelled arbitrarily. Cancellation of the earlier panel without calling for representation, was wrong. Such procedure lacked transparency. On the lack of transparency, Mr. Priyabrata Ghosh relied on All India Reporter 2004 Supreme Court page 3800 (State of U.P. & Ors. v. Johri Mal). He also contended, a proceeding under the Negotiable Instruments Act, 1881 was pending against the Public Prosecutor appointed and in support of such contention he relied on an information sheet obtained on January 4, 2012. He also relied on Regulation 96 of the Legal Remembrancer Manual to submit, a person more than 60 years of age ought not to be appointed as a Government Pleader. On the question of binding precedent he relied on 2011(9) Supreme Court Cases page 286 (Andhra Pradesh Dairy Development Corporation Federation v. B. Narasimha Reddy & Ors.) and All India Reporter 2011 Supreme Court page 3001 (Fida Hussain & Ors. Vs. Moradabad Development Authority & Anr.). The State did not use any affidavit in his petition according to Mr. Priyabrata Ghosh, since there were glaring infirmities records of the case should be called for. Court had power to call for the records. Re:- Birbhum Mr. Pratik Dhar appearing for the petitioner contended, provisions of Criminal Procedure Code as well as the Legal Remembrancer Manual was not followed while preparation of the panel for the district of Birbhum. He relied on Section 24 of the Criminal Procedure Code particularly Section 24 (4) and (6) Explanation (b) and contended, the procedure established therein was not followed in the case of appointment of Public Prosecutor in the case of Birbhum. He also relied on Regulation 96 of the Legal Remembrancer Manual of the Government of West Bengal. According to him, consultation appearing in Regulation 96 of the Legal Remembrancer Manual would mean effective consultation. Referring to the letter dated August 10, 2011 written by the Legal Remembrancer to the District Magistrate, Birbhum and the letter dated August 17, 2011 written by the District Magistrate to the District Judge, Birbhum he contended, the entire procedure established under Section 24 of the Criminal Procedure Code and Regulation 96 of the Legal Remembrancer Manual was followed in breach. He further contended, those three letters would rather indicate a reverse procedure being followed. He relied on 1991(1) Supreme Court Cases page 212 (Kumari Shrilekha Vidyarthi and Ors. v. State of U.P. & Ors.) to contend, if a procedure established by law was not followed the actions would be a nullity. He relied on 2004 (4) Supreme Court Cases page 714 (State of U.P. & Anr. V. Johri Mal) to emphasize the meaning of consultation and that the views of the District Judge would receive primacy in the appointment preparation of the panel. Mr. Shyamal Sanyal appeared for the State in the Birbhum petition. State filed an affidavit in the Birbhum petition. The State contended, due procedure established by law was followed in the appointments.
Mr. Bidyut Banerjee appeared for the Respondent No. 7 and contended, the post of a Government Pleader was not a public office and the provisions of the Legal Remembrancer Manual were directory without having a statutory force.
We have considered the materials on record and the rival contentions.
We propose to deal with the Purulia petition first. So far as Purulia is concerned, nothing was placed before us to suggest, the age bar specified under Section 24 of the Criminal Procedure Code had been violated in respect of appointment of Public Prosecutor. It was contended, Assistant Public Prosecutor were engaged who did not meet the age eligibility prescribed under Section 24 of the Criminal Procedure Code. Not a single instance with supporting document was brought to our notice. The petitioner was a practicizing lawyer of the Purulia District Court. The petitioner, therefore, had sufficient infrastructure to bring such instance, if any, on record. Consequently in absence of any instance being established before us, we do not find any merit on this point. It appears from Chapter II Rule 61(7), appointment of Government Pleaders would be for a period of not exceeding three years that may be renewed for further period if the incumbents were found fit and efficient. Rule 90(1) relates to panel lawyers. The panel was required to be revised annually in March. We were not placed any material to show the tenure of the earlier Government Pleader. The revision of the panel of lawyers is done annually in March. The panel was revised by the letter dated September 19, 2011. Annual revision being ingrained in the Rules petitioner's charge of arbitrary cancellation of the earlier panel has no merit. In support of the contention of the Purulia petition that the existing panel was scraped without calling for any representation and without following the provisions of the Legal Remembrancer Manual and that the same lacked transparency, reliance was placed on All India Reporter 2004 Supreme Court page 3800 (State of U.P. & Ors. v. Johri Mal). The case relates to interpretation of Section 24 of the Criminal Procedure Code and the provisions of the Legal Remembrancer Manual of the State of Uttar Pradesh. Considering the provisions of Section 24 of the Criminal Procedure Code and the various provisions of the Legal Remembrancer Manual as obtained in the State of Uttar Pradesh, the Apex Court at paragraph 46 held, the State normally would be bound to follow the principles laid down in the Legal Remembrancer Manual. The provisions of the Legal Remembrancer Manual obtaining in the State of Uttar Pradesh as quoted in the said judgment and our State, are different.
In Purulia petition the contention that wholesale cancellation of the earlier panel was arbitrary, does not impress us for the reasons stated above. The decision reported at All India Reporter 1991 Supreme Court page 537, also reported in 1991 (1) Supreme Court Cases page 210 (Kumari Srilekha Vidyatri and Ors. v. State of U.P. & Ors.) dealt with the provisions of the U.P Legal Remembrancer Manual which were different to the one obtaining in our State. We were not shown any material as to the nature of change with regard to the proceedings under the Negotiable Instruments Act, 1881 claimed to be pending against the Public Prosecutor of Purulia. It is a matter that is best left to the discretion of the State.
In 2011 (9) Supreme Court Cases page 286 (Andhra Pradesh Dairy Corporation Development Federation v. Narashima Reddy and Ors.) the Apex Court considered the provisions of the Andhra Pradesh Mutually Aided Co-operative Societies (Amendment) Act, 2006 that was struck down as unconstitutional by the Allahabad High Court.
In All India Reporter 2011 Supreme Court page 3001 (Fida Hussain & Ors. v. Moradabad Development Authority & Anr.) the Hon'ble Supreme Court was concerned with the proceedings filed by landowners for enhancement of compensation awarded by the reference Court for land acquired under the Land Acquisition Act 1894.
In both the aforesaid two decisions what constitutes a binding precedent has been dealt with. It has been held, a decision based on specific facts does not operate as a precedent for future cases. The provisions of the two Legal Remembrancer Manuals being different, we do not think that the course adopted by the Apex Court in respect of Uttar Pradesh as reported in All India Reporter 1991 Supreme Court page 537 (Kumari Srilekha Vidyatri and Ors. v. State of U.P. & Ors.) and All India Reporter 2004 Supreme Court page 3008 (State of U.P. & Ors. v. Johri Mal) ought to be adopted in the instant case. The facts of the instant case did not require us to call for the records.
So far as age of the Government Pleader is concerned, the Legal Remembrancer Manual of our State provides that a Government Pleader should ordinarily retire at the age of 60. It is for the State to decide upon the personnel of the Government Pleader and appoint a Government Pleader in accordance with the procedure established. We do not think that dehors anything else just because a person above 60 years is appointed as a Government Pleader such appointment is required to be struck down.
The Government appointed a Government Pleader and also appointed Public Prosecutor so far Purulia is concerned. We do not think it appropriate to interfere with such appointment in the facts and circumstances of the instant case.
In respect of Birbhum we have perused the letter dated August 10, 2011 written by Legal Remembrancer to the District Magistrate, the letter dated August 17, 2011 written by the District Magistrate to the District Judge as well as the letter dated August 18, 2011 written by the District Judge to the District Magistrate. On perusal ofthe three letters we are of the view that the three letters cannot be read in the manner as contended by the petitioners. The first letter, though not happily worded, shows that the Legal Remembrancer was requesting the views with regard to the panel of lawyers. The second letter of the District Magistrate sought the views of the District Judge. The third letter of the District Judge had no objection to the panel. The close proximity of the last two letters does not lead us to infer that the District Judge was not duly consulted in terms of Section 24 of the Criminal Procedure Code. The cases cited on behalf of the petitioner were also relied upon by Mr. Ghosh appearing for the Purulia petitioner. The Birbhum petitioners seek direction that in future the panel of lawyers of any district should be prepared in accordance with the Section 24 of the Criminal Procedure Code as well as the Legal Remembrancer Manual of our State. State would obviously follow the procedure established by law in preparation of the panel. It is superfluous to say, in the event any infraction is brought to the notice of the Court the same would be dealt with in accordance with law.
The State does have the right to choose its panel of lawyers subject to Section 24 of the Criminal Procedure Code and in normal circumstances by following the procedure laid down in the Legal Remembrancer Manual.
With these observations the two writ petitions are disposed of. There will be no order as to cost.
Ashim Kumar Banerjee,J:
I agree.
[ASHIM KUMAR BANERJEE, J.] [DEBANGSU BASAK, J.]