Tripura High Court
Sri Bapi Dey vs The State Of Tripura on 14 August, 2020
Author: S. Talapatra
Bench: S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
WP(C) 288 of 2020
Sri Bapi Dey,
son of Sri Swapan Kumar Dey,
resident of Village: Khilpara,
PS: R.K. Pur, Udaipur, District: Gomati
----Petitioner(s)
Versus
1. The State of Tripura,
represented by the Secretary,
Law Department,
Government of Tripura,
New Secretariat Building, New Capital Complex,
Kunjaban, PS: New Capital Complex,
Agartala, West Tripura: PIN: 799010.
2. The LR & Secretary,
Law Department,
Government of Tripura,
New Secretariat Building,
New Capital Complex,
Kunjaban, PS: New Capital Complex, Agartala,
West Tripura: PIN: 799010
3. The District Magistrate and Collector,
Government of Tripura,
Office of the DM & Collector,
PO: R.K. Pur, Gomati District,
Udaipur
---- Respondent(s)
For Petitioner(s) : Mr. Samarjit Bhattacharjee, Adv.
For Respondent(s) : Mr. A. K. Bhowmik, Advocate General
: Mr. D. Bhattacharjee, G.A.
: Mr. K. De, Addl. G.A.
Date of hearing : 18.06.2020
Date of pronouncement : 14.08.2020
Whether fit for reporting : YES
Page 2 of 18
HON'BLE MR. JUSTICE S. TALAPATRA
Judgment & Order
By means of this writ petition, the petitioner has challenged the advertisement dated 01.05.2020 (Annexure-11 to the writ petition) issued by the District Magistrate & Collector, Gomati District (the respondent No. 3). From reading of the reliefs as made in the writ petition, it appears that the challenge is confined only to one post of Assistant Public Prosecutor. Further, the writ of prohibition has been asked for prohibiting the respondents from including one post of Assistant Public Prosecutor (APP in short) in the courts of Judicial Magistrate under Gomati District in the said process, as initiated by the advertisement dated 01.05.2020.
[2] There is no dispute that the petitioner has been holding position of APP by virtue of the notification under No.F.5(7)- Law/LR-1/2018/2020-50 dated 06.03.2020 (Annexure-10 to the writ petition). From the bare reading of that notification dated 06.03.020, it would be apparent that such appointment under section 25(1) of the CrPC was made in compliance to the judgment dated 06.01.2020 delivered in WP(C) 991 of 2018. In that writ petition the core issue that has been decided by a Page 3 of 18 division bench of this court is that whether the state is free to choose the lawyers irrespective of their merit for appointing as Public Prosecutors, Addl. Public Prosecutors and APPs. It may be pertinent to note that previous to the said controversy, this High Court had in a public interest litigation being WP(C) PIL No.20 of 2015, occasion to examine the process by which the panel of APPs in terms of Section 24(4) of the CrPC is prepared. By the order dated 28.09.2015, in WP(C) PIL No. 20 of 2015, it has been made absolute clear that those post of APP are very sensitive in nature and accordingly a detailed affidavit on certain delineated queries was sought from the state government. Even the Sessions judges were asked to file affidavit in respect of the consultation process and also on what kind of information that is provided to the Sessions Judges at the time of consultation or what other materials they do take into consideration for assisting their concurrence etc. [3] Finally, in the midst of the proceeding, the Government of Tripura published a detailed notification dated 28.09.2016 laying the guidelines for appointment of APPs for conducting cases, which is still in force. In the said guidelines the state government has made provisions in respect of qualification , other Page 4 of 18 eligibility criteria, formation of selection committee, assessment of merit and procedure for interview as follows:
"4. Qualification required:
A candidate must have a Degree in Law of a recognized University and be enrolled as an advocate with the Bar Council of Tripura.
5. Eligibility:
A candidate must have practice on the criminal side as an Advocate for not less than 3 years.
6. Selection Committee:
For the purpose of screening and short-listing of the applicants, there shall be a Selection Committee consisting of the District Magistrate and an officer selected by him from his office not below the rank of Senior Deputy Magistrate.
7. Assessment of merit:
(1) For the purpose of screening and short-listing of the applicants, the Selection Committee shall take into consideration the following criteria:
(i) Total number of cases conducted independently and jointly.
(ii) Judgment of at least 03 cases in which the applicant has appeared and conducted.
(iii) Previous experience, if any, as Prosecutor, and,
(iv) General reputation in terms of integrity and professional efficiency.
8. Procedure for interview:
After short-listing of the applicants, the Committee shall call the candidates to appear in a personal interview and on the basis of such interview; the District Magistrate shall prepare a list of eligible candidates and send it to the Law Department for their appointment as Assistant Public Prosecutors u/s 25 of the Cr.P.C."
The said guidelines were approved by this court in the said public interest litigation.
[4] The controversy that was raised in the previous writ petition being WP(C) 991 of 2018 titled as Bapi Dey and another vs. State of Tripura and Others filed by the petitioner and another is that in supersession of the merit position, two persons who Page 5 of 18 were occupying the merit position below the writ petitioners were appointed as Assistant Public Prosecutors. The matter even though was initially taken by a learned single judge of this court, but having found serious ground of arbitrariness in the selection process and nexus with the said public interest litigation, the matter was referred and converted into a public interest litigation.
Even though the state government had contended that there was no element of public interest.
[5] Finally, having heard the parties at length and noting the observation recorded in the order dated 27.09.2016 in the previous public interest litigation where it was observed that the state respondent shall scrupulously follow the aforesaid guidelines in appointing Public Prosecutors/ Additional Public Prosecutors, Assistant Public Prosecutors in future. Even in the judgment dated 06.01.2020, this court has unambiguously observed that the state government shall operate within the terms of the said scheme.
The scheme envisages that the entire procedure starting from inviting application of eligible candidates till making their appointments in terms of the panel prepared by the selection committee and forwarded to the government. If the government had tangible materials to come to the conclusion that it is either not desirable or advisable to appoint any of the selected Page 6 of 18 candidates, the government can, as well, deviate from the recommendation of the selection committee, but not otherwise. It has been further observed that once the list is prepared by the selection committee by following the procedure laid down in the scheme, the government would be obliged to make appointment of the candidates as per the merit position denoted in the select list to the extent of requirement. Only in special cases where the government on the basis of materials on records or in the file (not necessarily to be disclosed) points that it is either not advisable or desirable to appoint a particular selected candidate, it may select a person below.
[6] The appointments as challenged in that public interest litigation were quashed and it was directed that the persons who had been superseded shall be appointed against the notified vacancies as per the merit position reflected in the select list. The said decision was challenged by filing a Special Leave to appeal (SLP) in the apex court. But the same was dismissed by the order dated 04.02.2020 delivered in SLP(C) 5457/2020 (Annexure-9 to the writ petition). As stated, the petitioner was appointed as Assistant Public Prosecutor by the notification dated 06.03.2020 (Annexure 10 to the writ petition) but within two months the said advertisement dated 01.05.2020 (Annexure 11 to the writ Page 7 of 18 petition) has been published inviting applications for all 8(eight) posts of Assistant Public prosecutors 2(two) Public Prosecutor/Additional Public prosecutors.
[7] Having situated thus, the petitioner has asserted in the writ petition that Assistant Public Prosecutors who have been selected and appointed pursuant to the earlier advertisement dated 05.04.2018 are discharging their duties and there is no reason for replacing them by fresh selection as their appointments were not tenure appointments. Moreover, in the advertisement there was a clear representation that "the appointment would be of perennial nature". The petitioner has averred on oath. It has been further asserted by the petitioner that there is absolutely no necessity of unsettling the settled position. The petition has further pleaded malice omnibus by stating that to get rid of the petitioner and show the petitioner door in a freakish manner the advertisement dated 01.05.2020 has been issued for fresh selection of 8 (eight) Assistant Public Prosecutors in the Gomati district. Out of those eight posts of Assistant Public Prosecutors, the petitioner has been occupying one. Thereafter, the petitioner has averred that in the notification dated 05.04.2018 issued by District Magistrate & collector, Gomati District for appointing 8 (eight) Assistant Public Prosecutors in the courts of Magistrates Page 8 of 18 and Executive Magistrates under Gomati District a specific representation as noted above. It would be permanent appointment and not tenure appointment. The petitioner had accepted the appointment by leaving his private practice on such representation (see Para-25 of the writ petition). The petitioner has further averred that the advertisement dated 01.05.2020 has been issued illegally , freakishly and arbitrarily in derogation of the petitioner‟s entitlement to continue in the post of Assistant Public Prosecutor. It has been further asserted that the said action has been taken for extraneous purpose, not for achieving any public purpose and against the legitimate expectation extended by the said representation.
[8] Mr. S. Bhattacharjee, learned counsel was asked to show from the notification dated 05.04.2018 based on which the petitioner was selected and appointed that there was any such representation that "appointment of perennial nature" as asserted by the petitioner of Para 19 of the writ petition. On reading of the said notification (Annexure 1 to the writ petition), Mr. Bhattacharjee, learned has not only failed to locate such representation in the notification dated 05.04.2020 but also has admitted that there is no clause regarding the tenure. As such the said statement in respect of the representation was not only de Page 9 of 18 horse the record, but appears to be a deliberate act of mis-leading the court. On that ground alone, the writ petition would have been rejected in limini. As this court found absence of term to examine an apparently unrelated issue by the order dated 27.05.2020, it look up whether there was any provision in this regard in the Legal Remambrancer‟s Manual (in short LR Manual). By the order dated 01.06.2020, this court after perusal of the LR Manual requested assistance of the Advocate General. On 02.06.2020 when notice was issued, this court had confined the notice on the limited aspect viz. the terms or period of engagement of Assistant Public Prosecutors inasmuch as by the amendment carried out in the LR Manual by the order under No.f.1(1)-LR/74 dated 01.08.1974, the enabling power has been incorporated in the manner as provided here under:
"36S. The State Government shall appoint the Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors under the provisions of Section 24 and 25 of the Code of Criminal Procedure, 1973 for such term or period as may be notified in the official gazette."
[Emphasis added] Against the said order, no appeal has been carried by the petitioner.
[9] The respondents by filing their reply on 12.06.2020 have clearly stated that there was no term or tenure fixed by the provision of the CrPC or by LR Manual for appointment of Public Page 10 of 18 Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors. The petitioner was appointed as APP in the court of the Judicial Magistrate at Udaipur by the said notification dated 06.02.2020 "for a period until further order". It has been asserted by the respondents thereafter that the state government having taken a policy decision to appoint Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors throughout the state including the Gomati District has directed the District Magistrates of all districts of the State to publish advertisement for fresh selection of Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors. Hence, the petitioner cannot claim a right of exclusion from the said process inasmuch as, he does not have any indefeasible right.
[10] It has been asserted that in terms of Clause 36S of LR Manual, the state government has decided that normally the period of appointment of all Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors will be of one year. The respondents have produced a copy of the Gazette Notification dated 09.06.2020 (Annexure 1 to their reply). In para 8 of the said reply, the respondent have shown the posts of Public Prosecutors, Additional Public Prosecutors, and Assistant Public Prosecutors in the Gomati District, constituted of 3 (three) Sub- Page 11 of 18 divisions namely Udaipur, Amarpur and Karbook. No rejoinder has been field by the petitioner for obvious reasons. [11] Mr. S. Bhattacharjee, learned counsel appearing for the petitioner has tried to persuade this court that even if there is any term provided in the notification, the respondent cannot arbitrarily terminate the appointment of the petitioner as Assistant Public Prosecutor. He has pressed a few decisions of the apex court to nourish his submission.
[12] In Union of India and another vs. International Trading Co. and Another reported in (2003) 5 SCC 437, the apex court has observed that while even making change in the policy in exercise of the executive power, it is imperative and implicit in view of Article 14 of the Constitution that a change in policy must be made fairly. At the same time, it has been observed something overwhelming must appear before the court to intervene. The ultimate test of fairness is whether on the touchstone of reasonableness, the policy decision comes out unscathed. The apex court was not oblivious to mention that a restriction cannot be said to be reasonable merely because in a given case, it operate harshly. In determining whether unfairness is involved, the nature of the right as alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and Page 12 of 18 urgency of the evil sought to be remedied thereby, the proportion of the imposition and the prevailing condition are relevant factors required to be judicially reviewed.
[13] Mr. Bhattacharjee has referred another decision of the apex court in Union of India and Others vs. Jai Prakash Singh and Another reported in (2007) 10 SCC 712 to contend that the right to reason is indispensable in the judicial process. Therefore, to serve that object the respondent is beholden to reveal reasons for change in their policy. According to Mr. Bhattacharjee, such reasons are only conspicuous by their absence. Even though a decision of the apex court in Hargurpratap Singh vs. State of Punjab and Others reported in (2007) 13 SCC 292 has been placed in the service, but this court does not find any relevance of the said report in the present context inasmuch as in the judgment dated 06.01.2020 the high court has not laid any term, not even made any observation in respect of continuance of the appointment of the petitioner. On necessity of providing reasons, Mr. Bhattacharjee, has relied on another decision of the apex court in Kranti Associates Private Limited and Another vs. Masood Ahmed Khan and Others reported in (2010) 9 SCC 496. This court is not persuaded to refer extensively the observation made by the apex court on cessante ratione legis cessat ipsa lex Page 13 of 18 as it is a well known principle that duty to give reason is an incidence of the judicial process or in discharging quasi judicial functions.
[14] Finally, Mr. Bhattacharjee learned counsel has placed his reliance in State of Uttar Pradesh and Others vs. Ajay Kumar Sharma and Another reported in (2014) 3 SCC 568 where the apex court has observed that appointment of the District Government Counsel and renewal of their term are required to be made in accordance with provisions of LR Manual read with Section 24 of the CrPC. It has been succinctly observed by the apex court in Ajay Kumar Sharma (supra) as under:
"20. While renewing the term of the appointment of the existing incumbents the State Government is required to consider their past performance and conduct in the light of the recommendations made by the District Judges and the District Magistrates. Therefore, the High Court could not have issued a mandamus for renewal of the term of Respondents 1 and 2 and other similarly situated persons and thereby frustrated the provisions of the LR Manual and Section 24 CRPC."
The above observation does not support the contention of Mr. Bhattacharjee. On the contrary it provides leverage to the state government to consider past performance and conduct in the light of recommendation made by the District Judges and District Magistrates.
[15] Mr. A. K. Bhowmik, learned Advocate General has clearly stated that the state government had strongly felt Page 14 of 18 necessity of inducting meritorious advocates as Public Prosecutor, Additional Public Prosecutors and Assistant Public Prosecutors in order to augment the efficiency in the criminal justice system on making review of the performance of the incumbent Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors. In this regard, the petitioner cannot have any say. Moreover, when the petitioner was appointed, it had been mentioned that such appointment shall continue until further orders. Thus, the petitioner does not have any vested right to continue in the post of Assistant Public Prosecutor under the Gomati District.
[16] Before this court avails the opportunity of appreciating the submission made by the counsel for the petitioner and the respondents, it is worthwhile to note the observation of the apex court in respect of the role of the Public Prosecutors as made in State of UP Vs. Johri Mal reported in (2004) 4 SCC 714 which reads as follows:
"71. The District Government counsel appointed for conducting civil as also criminal cases hold offices of great importance. They are not only officers of the court but also the representative of the State. The court reposes a great deal of confidence in them. Their opinion in a matter carries great weight. They are supposed to render independent, fearless and non-partisan views before the court irrespective of the result of litigation which may ensue.
72. The Public Prosecutors have greater responsibility. They are required to perform statutory duties Page 15 of 18 independently having regard to various provisions contained in the Code of Criminal Procedure and in particular Section 320 thereof.
73. The public prosecutors and the Government counsel play an important role in administration of justice. Efforts are required to be made to improve the management of prosecution in order to increase the certainty of conviction and punishment for most serious offenders and repeaters. The prosecutors should not be over-burdened with too many cases of widely varying degree of seriousness with too few assistants and inadequate financial resources. The prosecutors are required to play a significant role in the administration of justice by prosecuting only those who should be prosecuted and releasing or directing the use of non-punitive methods of treatment of those whose cases would best be processed.
74. The District Government Counsel represent the State. They, thus, represent the interest of general public before a court of law. The Public prosecutors while presenting the prosecution case have a duty to see that innocent persons may not be convicted as well as an accused guilty of commission of crime does not go unpunished. Maintenance of law and order in the society and, thus, to some extent maintenance of rule of law which is the basic fibre for upholding the rule of democracy lies in their hands. The Government counsel, thus, must have character, competence, sufficient experience as also standing at the Bar. The need for employing meritorious and competent persons to keep the standard of the high offices cannot be minimized. The holders of the post have a public duty to perform. Public element is, thus, involved therein.
75. In the matter of engagement of a District Government Counsel, however, a concept of public office does not come into play. However, it is true that in the matter of Counsel, the choice is that of the Government and none can claim a right to be appointed. That must necessarily be so because it is a position of great trust and confidence. The provision of Article 14, however, will be attracted to a limited extent as the functionaries named in the Code of Criminal Procedure are public functionaries. They also have a public duty to perform. If the State fails to discharge its public duty or act in defiance, deviation and departure of the principles of law, the court may interfere. The court may also interfere when the legal policy laid down by the Government for the purpose of such appointments is departed from or mandatory provisions of law are not complied with. Judicial review can also be resorted to, if a holder of a public office is sought to be removed for reason dehors the statute."
It has been further observed in Johri Mal (supra) as follows: Page 16 of 18
"85.The age-old tradition on the part of the State 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 vis-a-vis 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.
86. We are also pained to see that the State of Uttar Pradesh alone had amended sub-section (1) of Section 24 and deleted sub-sections (3), (4) and (5) of Section 24 of the Code of Criminal Procedure. Evidently, the said legislative step had been taken to overcome the decision of this Court in Shrilekha Vidyarthi : (1991) 1 SCC 212. We do not see any rationale in the said action. The learned counsel appearing for the State, when questioned, submitted that such a step had been taken having regard to the fact that exhaustive provisions are laid down in Legal Remembrancer Manual which is a complete code in itself. We see no force in the said submission as a law cannot be substituted by executive instructions which may be subjected to administrative vagaries. The executive instructions can be amended, altered or withdrawn at the whims and caprice of the executive for the party in power. Executive instructions, it is beyond any cavil, do not carry the same status as of a statute.
87. The State should bear in mind the dicta of this Court in Mundrika Prasad Singh: (1979) 4 SCC 701 as regards the necessity to consult the District Judge. While making appointments of District Government Counsel, therefore, the State 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 noticed hereinbefore, 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."
[17] Thus, it is evident from the amendment carried out by the notification dated 08.06.2020 in the LR Manual that the Page 17 of 18 minimum tenure of Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors has been fixed as „one year‟ from the date of appointment. However, the stage government has reserved the right to extend and reduce the period of any class for all of prosecutor for one or more station by the notification in this regard in the interest of administration of criminal justice.
[18] This court having taken note of the rider is persuaded to observe that for taking recourse to the rider the state government shall record the reasons for taking such steps and those reasons must be compelling in the interest of administration of criminal justice. Further, when the selection committee would conduct the interview would follow the other mode of selection, the selection committee shall follow a rational method to select the best of the candidates for the above posts. In this regard, the Legal Remambrancer may lay down the guidelines by allocating marks on qualification, experience, skill, aptitude etc. The members of the selection committee shall give their individual marks in separate sheets which shall be, on completion of the interview or other mode of selection, be signed by the members of the selection committee. This can be done by prescribing a format with object of ensuring transparency. These sheets shall form the Page 18 of 18 part of records and be sent to the Sessions Judges of the Districts during the consultation for obtaining his concurrence. The opinion of the Sessions Judge, if any, shall be given primacy before finalizing the selection and recommending to the Legal Remambrancer. During the entire exercise, the observation of Johri Mal (supra) shall be kept in mind in order to augment the standard of the prosecution by appointing meritorious and competent persons. In respect of appointment on the basis of the merit panel, the judgment of this court in Bapi Dey and another vs. State of Tripura and others (supra) (Annexure-8 to the writ petition) has to be the foundation in understanding the provisions of Section 24 of the CrPC.
Since, the petitioner cannot, as a matter of right, claim to continue by virtue his appointment made under the notification dated 06.03.2020, this writ petition stands dismissed subject to the observation made above. However, till the new appointments are made the petitioner shall be allowed to continue in the post of Assistant Public Prosecutor where he is presently working.
No order as to costs.
JUDGE Dipak