Tripura High Court
Sri Bapi Dey vs The State Of Tripura on 6 January, 2020
Equivalent citations: AIRONLINE 2020 TRI 348
Bench: Akil Kureshi, Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
W.P (C) No.991/2018
1. Sri Bapi Dey, S/O - Sri Swapan Kumar Dey, Resident of
Village - Khilpara, P.O. - Khilpara, P.S. - R.K. Pur, Udaipur,
District - Gomati.
2. Sri Joyesh Dey, S/o. - Sri Bhagirath Chandra Dey, R/O -
Village - Rajdharnagar, P.O. - Jamjuri, P.S. - Kakraban,
Udaipur, Gomati Tripura.
........... Petitioner(s)
- Vs. -
1. The State of Tripura
(To be represented by the Secretary, Law Department,
Government of Tripura), New Secretariat Building, New Capital
Complex, Kunjaban, P.S. - New Capital Complex, Agartala,
West Tripura, PIN - 799010.
2. The LR & Secretary, Law Department, Govt. of Tripura,
New Secretariat Building, New Capital Complex, Kunjaban,
P.S. - New Capital Complex, Agartala, West Triopura,
PIN - 799010.
3. The District Magistrate and Collector, Govt. of Tripura,
O/O the DM & Collector, P.O. - R.K. Pur, Gomati District,
Udaipur.
4. Smt. Sumanta Chakraborty, W/o. - Sri Sayantan Chakraborty,
R/O - Chanban, Gada Chowmuhani, Near Sports Complex,
P.O. & P.S. - R.K. Pur, Udaipur, Gomati Tripura.
(Presently Serving as Assistant Public Prosecutor at Ld. Judicial
Magistrate Court, Udaipur under the CJM, Gomati.)
5. Sri Rana Datta, S/o - Sri Babul Datta, R/O - Madhyapara,
Bidhan Sarani Road, P.O. & P.S. - R.K. Pur, Udaipur, Gomati
Tripura.
(Presently Serving as Assistant Public Prosecutor (APP in
Charge) at CJM Court, Gomati.)
6. Sri Dilip Dey, S/o. Late Nepal Dey, R/O - Tepania, Pal Para,
P.O. - Tepania, P.S. - R.K. Pur, Udaipur, Gomati Tripura,
(Presently Serving as Assistant Public Prosecutor at Ld. Judicial
Magistrate Court, Udaipur under the CJM, Gomati.)
7. Smt. Sipra Ghosh, W/o . - Late Sushanta Chowdhury, R/O. -
Amarpur, Amarpur Town, P.O. - Amarpur, Gomati District,
Tripura.
(Presently Serving as Assistant Public Prosecutor at Ld. Sub-
Divisional Judicial Magistrate Court, Amarpur, Gomati.)
........... Respondent(s)
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For Petitioner(s) : Mr. P. Roy Barman, Advocate.
Mr. Samarjit Bhattacharjee, Advocate.
Mr. Kawsik Nath, Advocate.
For Respondents No.1 to 3: Mr. A.K. Bhowmik, Advocate General.
Mr. D. Bhattacharjee, GA.
Mr. Karnajit Dey, Addl. GA.
For Respondents No.4 to 7: Mr. Raju Datta, Advocate.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE ARINDAM LODH Date of hearing and judgment : 06.01.2020.
Whether fit for reporting : Yes.
JUDGMENT & ORDER(ORAL)
(Akil Kureshi, CJ).
Petitioners have challenged a Notification dated 15.06.2018 issued by the Government of Tripura under which respondents No.4 to 7 have been appointed as Assistant Public Prosecutors in Judicial Magistrate Courts at Udaipur and Amarpur. The Government of Tripura had notified 5 posts of Assistant Public Prosecutor at the said Magisterial Courts under the Sub-Division of Gomati District. The petitioners along with several other eligible candidates had applied in response to the same. Selection Committee had carried out the process of selecting and recommending names of eligible candidates. Upon completion of such exercise, the Selection Committee had drawn select list in which the petitioners were placed at serial Nos.1 and 2 respectively. The State Government, instead of appointing the petitioners, appointed the respondent Nos.4 to 7 herein, who were placed at serial Nos.8, 12, 13 and 10 in the select list. Page 3 of 28
2. This litigation has a history which may be recorded in brief. In the State of Tripura, the Assistant Public Prosecutors engaged by the State Government for representing the prosecution before different Magisterial Courts is not encadred. In other words, the State of Tripura has not created a special cadre of Assistant Public Prosecutors, with prescribed scale of pay and the incumbent of which post would get the status of a Government servant. Instead, the State of Tripura engages Assistant Public Prosecutors by empanelling them, paying retainer charges and other remuneration as fixed from time to time. It appears that previously there was no pattern or regular guidelines for selecting and appointing advocates on the post of Assistant Prosecutors. A public interest petition being W.P. (C) (PIL) No.20 of 2015 was filed before the High Court urging the Court to direct the Government to lay down reasonable criteria in method of selection for preparing the panel of Assistant Public Prosecutors in terms of sub-Section (4) of Section 24 of the Code of Criminal Procedure. The petitioner had also raised the issue of advisability of regular cadre of Assistant Public Prosecutors being created. On 28.09.2015, a Division Bench of this Court had passed a detailed order, which reads as under:
"This is a Public Interest Litigation whereby the petitioner has basically raised questions about the manner in which Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors are appointed in the State of Tripura.
At this stage we are not going into the merits of the case but reference may be made to Section 24 and 25 of the Code of Criminal Procedure, 1973 which Page 4 of 28 relates to appointment of Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors.
The role of Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors are very important. Prior to the Code of Criminal Procedure, 1973, there was only Police Prosecutors. After separation of the Judiciary from the Executive, the nomenclature has been changed to Public Prosecutor. The role of a Public Prosecutor is to bring out the truth and to assist the Court. The Public Prosecutor should be fair to the Court. The Public Prosecutor is not like a private lawyer and if he feels that the accused is innocent, it is his duty to point out this fact to the Court also. A Public Prosecutor must be free from all influences including political influences.
Section 24 of the Cr.P.C. deals with the appointments of Public Prosecutors and Additional Public Prosecutors. Normally, Public Prosecutors and Additional Public Prosecutors are appointed in the level of the District Judges Court. The Assistant Public Prosecutors can be appointed under Section 25 of the Cr.P.C. who can only appear in the Courts of Magistrates. Under Section 25 of the Cr.P.C., a Public Prosecutor/Assistant Public Prosecutor has to be appointed by the District Magistrates in consultation with the Sessions Judges. The District Magistrates in consultation with the Sessions Judges have to first prepare a panel of names of persons who are fit to be appointed as Public Prosecutors or Assistant Public Prosecutors in the District. Sub-Section 4 provides that no person shall be appointed by the State Government as Public Prosecutors or Additional Public Prosecutors unless his name appears in the panel of names prepared by the District Magistrates.
We are of the considered view that in view of the provisions of Section 24 of the Cr.P.C., it is imperative Page 5 of 28 to implead the District Magistrates and Sessions Judges of all the five judicial districts namely West Tripura, South Tripura, Gomati, North Tripura and Unakoti and the Secretary, Law as respondents to this petition.
The amended memo of parties be filed within three days.
These posts are very sensitive in nature and therefore, we would like to direct the Secretary, Law and the District Magistrates of all the five judicial districts to file affidavits before us answering the following queries:
(1) Whether any panel as required under Section 24 of the Cr.P.C. has been prepared district-wise in the respective districts?
(2) What is the method followed for appointment of Public Prosecutors/ Additional Public Prosecutors? (3) Whether any policy has been framed or any guidelines have been laid down laying the criteria for assessing the suitability and competence of the persons to be appointed to the posts of Public Prosecutor or Additional Public Prosecutors in addition to the requirements which find mention in Section 24 and 25 of the Cr.P.C.?
(4) If no policy or guidelines are there, on what basis is the competence/suitability of the persons appointed assessed?
(5) Are the posts of Public Prosecutor/ Additional Public Prosecutors advertised and applications invited from all lawyers who may be interested in serving as Public Prosecutor/Additional Public Prosecutors or are appointments made without any selection process?
(6) In case there is no selection process of inviting applications from the Members of the Bar, the State will justify why such a process is not being followed?Page 6 of 28
(7) In case there is no selection process for appointing Public Prosecutor/Additional Public Prosecutors, then the State shall inform this Court by affidavit what is the system followed by the Magistrates to assess the suitability of the candidates recommended by the District Magistrates for being appointed as Public Prosecutor or Additional Public Prosecutors.
All the five Sessions Judges concerned shall also file their affidavits in which they will answer the following queries.
(1) What is the information brought to their knowledge before recommending the names of persons to be appointed as Public Prosecutors/Assistant Public Prosecutors? (2) Whether persons whose names are not in the panel have been appointed as Public Prosecutor/Assistant Public Prosecutors in the last five years? If this has been done justification for the same shall also be given.
(3) What is the consultation process followed and what is the information provided to the Sessions Judges at the time of consultation and what is the material taken into consideration by the Sessions Judges before giving their concurrence to the appointments?
(4) What was the procedure followed prior to the instructions issued by the Chief Justice on the administrative side.
As far as Assistant Public Prosecutors are concerned, it is within the power of the Government to appoint the Assistant Public Prosecutors in terms of Section 25 of the Cr.P.C. However, again we would like to have the following information from the Secretary, Law in his affidavit.Page 7 of 28
(1) What is the method of selection of Assistant Public Prosecutors?
(2) Whether any advertisements are issued inviting applications from all Members of the Bar for being considered to be appointed as Assistant Public Prosecutors?
(3) If no such method is being followed, then justification shall be given as to why these public posts, which are statutory posts under the Cr.P.C., are not being advertised?
(4) What is the method of selection and assessment of the suitability and competence of the persons appointed as Assistant Public Prosecutors?
The record with regard to the appointments of Public Prosecutors and Assistant Public Prosecutors appointed in the last five years shall also be produced in Court on the next date.
The affidavits in question be filed within eight weeks.
List the matter on 07.12.2015.
It is made clear that the affidavits must be filed before the said date otherwise the officer concerned who has not filed the affidavit shall remain present in person in the Court on the next date."
3. On 08.02.2016, the Division Bench passed a further order in the said public interest petition in which following observations were made:
"However, there have been some instances where Public Prosecutors have been appointed without any consultation also. This cannot be permitted to go on. We are extremely worried with the competence of Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors in the State of Tripura. On Page 8 of 28 the judicial side, in criminal cases more often than not we are seeing that the manner in which the cases are conducted show that these Public Prosecutors are not fully competent and trained to handle the matters.
We would by the next date like to find out on what basis is the panel is prepared by the Government. We must remember that after the separation of the Executive from the Judiciary, the work of prosecution was taken away from the police and handed over to the department of public prosecution. The reasons for this was that the Public Prosecutors should not be police prosecutors, should not be persecutors but should assist the Court and if necessary, the Public Prosecutor can tell the Court that in a particular case, no criminal case is made out against the accused or that there is no evidence against the accused.
We have gone through some of the affidavits and we find that there is no system of appointment. We have requested Mr. B.C. Das, learned Advocate General to take up the matter with the concerned persons in authority and to ensure that by the next date there is a tangible policy for appointment of Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors."
4. After such detailed deliberations, the Government presented before the High Court the guidelines for appointment of Assistant Public Prosecutor in District and Magisterial Courts. The High Court accepted such guidelines, which were made part of the record under order dated 27.09.2016 in which following further observations were made:
"The writ petition no longer survives for consideration. It is expected that the State respondents scrupulously follow the aforesaid guidelines for future Page 9 of 28 appointment of the Public Prosecutor/Additional Public Prosecutor/ Assistant Public Prosecutor."
5. The guidelines produced before the High Court and duly approved in the said public interest petition were duly notified by the Government under Notification dated 28.09.2016, which reads as under:
"Pursuant to the order of Hon'ble High Court of Tripura dated 08.02.2016 Passed in case No. W.P.(C)(PIL) No.20 of 2015 the State Government hereby formulates the following Guidelines for appointment of Assistant Public Prosecutors, for conducting cases in the Magisterial Courts of the State of Tripura, on behalf of the State:-
1. Short Title & extent:
(i) This guideline may be called The Guidelines for Preparation of Panel for appointment of Assistant Public Prosecutors in the State of Tripura;
(ii) This guideline shall be followed by the concerned Authority for the purpose of preparation of panel and appointment of Assistant Public Prosecutors in the Courts of Magistrates and shall extend to the whole of Tripura;
2. Commencement:
This will come into force on the date of its publication in the Official Gazette.
3. Procedure:
The preparation of panel and appointment of Assistant Public Prosecutor shall be made directly inviting applications through news paper advertisement by the District Magistrate concerned.Page 10 of 28
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.Page 11 of 28
9. Appointment:
The Law Department will make the appointment from the list of candidates prepared by the District Magistrate concerned.
10. Residuary matters:
In regard to matters not specifically covered by this guideline, the decision of the State Government shall be final."
6. It was under these set of Rules that the State of Tripura had invited eligible advocates for being considered against 5 vacancies of Assistant Public Prosecutors in Judicial Magistrate Courts at Udaipur and Amarpur under a Notification dated 05.04.2018. Both the petitioners as well as private respondents No.4 to 7 had applied in response to such invitation. It is not in dispute that the petitioners as well as the said respondents were duly qualified and considered by the Selection Committee during the oral interviews.
The tabulation sheet of the marks assigned by the Selection Committee, would show that the petitioner No.1 had got an average of 15½ marks, petitioner No.2 had got 15 marks, the respondents No.4 to 7 were granted 10½, 8½, 8 and 9½ marks respectively. The Selection Committee forwarded its recommendations to the Government on 24.05.2018 in the form of a select list. This select list contained a total of 13 candidates. Petitioners were empanelled at serial Nos.1 and 2. Respondents No.4 to 7 were placed, as noted earlier, at serial Nos.8, 12, 13 and 10 respectively.
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7. This petition was initially placed before the learned Single Judge as per the roster. On 17.01.2019, the learned Judge considering the serious allegations of arbitrariness in selection process and in view of the background of previous W.P. (C) (PIL) No.20 of 2015 expressed the opinion that since the grievances have nexus with the previous public interest petition, the matter should be placed before the Chief Justice for considering whether the petition can be converted into a public interest litigation. The record would show that the Registry thereupon placed the case before the Hon'ble Chief Justice along with a note on which the Chief Justice after perusal of the file, on 11.02.2019 approved the suggestion of the learned Single Judge to treat the petition as Public Interest Litigation. That is how this petition has been placed before the Division Bench for further hearing. The State Government has filed I.A. No.01 of 2019 opposing this suggestion of treating the present petition as a public interest litigation arguing that no element of public interest is involved.
8. In background of such controversy, we have heard learned counsel for the parties at considerable length. Learned counsel for the petitioners vehemently contended that the State Government has committed a serious error in appointing respondents No.4 to 7 totally ignoring the merit list prepared by the Selection Committee. The petitioners having been placed at serial Nos.1 and 2 in the said select/merit list, had a prior claim for appointment over the rest of the candidates including the respondents No.4 to 7, who are placed way below in the select list. He submitted that Page 13 of 28 the Government has not cited any reasons for discarding the recommendations of the Selection Committee and thereby, has violated the guidelines framed by the Government which were approved by the High Court in the said public interest petition. His central argument was that the petitioners were found to be more meritorious than the rest of the candidates. Their merit position could have been disturbed only if there were special reasons recorded by the Government. In the present case, no such reasons are cited before the Court. Counsel placed reliance on certain decisions to which reference would be made at a later stage.
9. On the other hand, learned Advocate General opposed the petition firstly, contending that not being in the nature of a public interest litigation, the Division Bench should not hear the petition. He further submitted that the Assistant Public Prosecutors do not form a regular cadre in the State service. They are engaged on the basis of their efficiency and performance and element of trust and comfort in working with the Government would be of vital importance. This Court in the public interest petition had never envisaged that the Selection Committee would draw select list and that the Government must make appointments according to the merit position of the candidates placed in the select list. He argued that as long as the Government made appointments of the persons included in the list prepared by the Selection Committee the guidelines of the Government would be duly followed. In absence of any breach of the guidelines judicial review would not Page 14 of 28 permit this Court to interfere with the Government's decision. He also relied on several decisions reference to which would be made at a later stage.
10. Before addressing the central controversy, we may first clear the peripheral issue of hearing the petition by this Bench as a public interest litigation. We have noticed the background of the Government guidelines being laid down under the Notification dated 28.09.2016 for appointment to the posts of Assistant Public Prosecutors. This was pursuant to a public cause taken up by private individuals in the public interest petition filed before this Court. The Court had examined the issue at considerable length and found various anomalies in appointment of Assistant Public Prosecutors from time to time. To streamline the procedure, the Court had called upon the Government to suggest the guidelines. Under the circumstances in consultation with the High Court the Government had prepared the guidelines which were presented before the Court for its approval. While accepting such guidelines and disposing of the public interest petition by the order dated 27.09.2016, the Court had observed that "It is expected that the State respondents scrupulously followed the aforesaid guidelines for future appointment of the Public Prosecutor/Additional Public Prosecutor/Assistant Public Prosecutor."
11. Despite the Government itself laying down the guidelines, which were also approved by the High Court, there appears to be some confusion about the true import of the terms of the Page 15 of 28 guidelines. Clearly therefore, this is a sequel to the previous public interest petition and would have equally widespread repercussions. This exercise that we are undertaking just now would not be confined only to the present vacancies of 5 Assistant Public Prosecutors or the rights or contentions of the present two petitioners. This exercise could have much wider canvas and consequentially far reaching repercussions.
12. Through series of Judgments of the Supreme Court, the importance of the function of the Public Prosecutors has been highlighted. In a non-adversarial prosecution system that our country has adopted, the State understates the primary role of investigating into cognizable offences and prosecuting the accused who are prima facie found to have been involved in commission of such offences. The Public Prosecutor does not represent only the voice of the Government but is expected to act impartially and in fairness to the prosecution as well as to the accused. His primary duty is to correctly guide the Court in law and on facts. These tasks cannot be performed without selecting and appointing well trained, efficient and impartial advocates as Prosecutors. Section 24 of the Code of Criminal Procedure pertains to Public Prosecutors. Sub-Section (4) of Section 24 provides that the District Magistrate shall, in consultation with the Sessions Judge prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district. Section 25(1) of Criminal Procedure Code provides that the State Government shall appoint in every district one or Page 16 of 28 more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates. Thus, the position of Public Prosecutor and Assistant Public Prosecutor and their appointment is statutorily recognized. Under the circumstances, we reject the Government stand that the present petition does not present an element of public interest. In any case it is too late in the day for the Government to argue said contention. As noted, the suggestion was made by the Single Judge to consider if this can be considered as PIL, a suggestion which was accepted by the then Chief Justice on administrative side. I.A. No.01 of 2019 is, therefore, rejected.
13. Coming to the central issue of legality of the State action, we have no hesitation in coming to the conclusion that the decision is wholly arbitrary and illegal. We may recall, the High Court in the said public interest petition, had aimed to bring about uniformity and transparency in making appointments of Assistant Public Prosecutors. As a culmination of such exercise, the State Government had yielded to the position of framing proper guidelines. Such guidelines were presented before the Court and duly approved. While disposing of the public interest petition, the Court had mandated that such guidelines shall be followed by the State for making appointments to the post of Assistant Public Prosecutors and Public Prosecutors scrupulously.
14. These notified guidelines provide for qualifications and eligibility required for a candidate to be appointed as an Assistant Page 17 of 28 Public Prosecutor. Paragraph-3 of the scheme provides that the preparation of panel and appointment of Assistant Public Prosecutor shall be made directly by inviting applications through newspaper advertisement by the District Magistrate concerned. Paragraph-6 of the scheme pertains to Selection Committee and envisages that for the purpose of screening and short-listing of the applicants, there would be a Selection Committee consisting of District Magistrate and an officer selected by him from his office not below the rank of Senior Deputy Magistrate. Paragraph-7 pertains to assessment of merit and envisages that for the purpose of screening and short-listing of the applicants, the Selection Committee shall take into consideration the various criteria laid down therein including the total number of cases conducted by a candidate, Judgments of at least last 3 cases in which he has appeared, previous experience as a Prosecutor, if any, and general reputation in terms of integrity and professional efficiency. Paragraph-8 envisages conducting any interview of the short listed candidates. It provides that after short listing of the applicants, the Committee would call the candidates to appear in a personal interview and on the basis of which the District Magistrate shall prepare a list of eligible candidates and send it to the Law Department for the appointment of such candidates of Assistant Public Prosecutors. Paragraph-9 provides that the Law Department will make the appointment from the list of candidates prepared by the District Magistrate concerned. Page 18 of 28
15. The entire process of inviting applications from eligible willing candidates to be appointed as Assistant Public Prosecutors is thus streamlined under the said Notification. The method of inviting applications, the eligibility criteria required for appointment, the composition of the Selection Committee, the assessment of merit on the basis of which the Selection Committee would short list the candidates and the drawing up of select list after conducting the interviews of the short-listed candidates have been provided in the said Notification. It is in this background that the contention of the counsel for the Government that the list prepared by the Selection Committee is only for the purpose of enabling the Government to appoint anyone out of the empanelled candidates must be rejected. The Selection Committee is entrusted with the duty of screening out ineligible candidates, short listing eligible candidates on the basis of four factors provided in Paragraph-7 of the Notification and thereafter, preparing a select list on the basis of oral interviews of the short- listed candidates as per Paragraph-8 of the scheme, which would be communicated to the Government for appointment of Assistant Public Prosecutors. For greater emphasis, Paragraph-9 of the scheme provides that the Law Department will make the appointment from the list of candidates so prepared. The narration that the appointments will be made from the list so prepared would not permit the Government to pick and choose from such a list under the premise that once the penal is drawn the Government has a free hand to make appointment in favour of any of the candidates as long as he has been empanelled. This Page 19 of 28 would fly in face of the very purpose of formulation of the scheme and the directives of the High Court that future appointments shall be made scrupulously adhering to the provisions of the scheme. Appointing a candidate with lower merit ignoring a candidate with higher merit without specific reasons would also be violative of Article 14 of the Constitution. This is also contrary to range of Judgments of the Supreme Court to which reference would be made shortly.
16. This is not to suggest that the list prepared by the Selection Committee and forwarded to the Government would bind the Government with all its rigidity. If the Government has at its command some material which can manifest unsuitability or undesirability of the candidate for being appointed though placed in the select list and recommended by the Selection Committee, for proper reasons to be recorded in writing the Government can as well supersede such a candidate. However, this is vastly different from suggesting that once a panel is drawn by the Selection Committee, the Government has a free hand to choose anyone of them for appointment with impunity disregarding the relative merit position. Selection Committee is entrusted the task of assessing the relative merit of the candidates. It's role is of recommendatory nature. The recommendations can be ignored by Government for valid reasons but not otherwise. To our mind it matters not whether the Assistant Public Prosecutors are appointed on posts created for such purpose or otherwise. Page 20 of 28
17. One of the earliest cases decided by the Supreme Court in connection with appointment of Government counsel was in the year 1991 in case of Kumari Shrilekha Vidyarthi and others vs. State of U.P. and others, reported in (1991) 1 SCC 212. Following observations made by the Supreme Court may be noted:
"20. Even apart from the premise that the `office' or `post' of DGCs has a public element which alone is sufficient to attract the power of judicial review for testing validity of the impugned circular on the anvil of Article 14, we are also clearly of the view that this power is available even without that element on the premise that after the initial appointment, the matter is purely contractual. Applicability of Article 14 to all executive actions of the State being settled and for the same reason its applicability at the threshold to the making of a contract in exercise of the executive power being beyond dispute, can it be said that the State can thereafter cast off its personality and exercise unbridled power unfettered by the requirements of Article 14 in the sphere of contractual matters and claim to be governed therein only by private law principles applicable to private individuals whose rights flow only from the terms of the contract without anything more? We have no hesitation in saying that the personality of the State, requiring regulation of its conduct in all spheres by requirements of Article 14, does not undergo such a radical change after the making of a contract merely because some contractual rights accrue to the other party in addition. It is not as if the requirements of Article 14 and contractual obligations are alien concepts, which cannot co-exist.Page 21 of 28
29. It can no longer be doubted at this point of time that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. (1979) 3 SCC 489 and Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir, (1980) 3 SCC 1338. In Col. A.S. Sangwan v. Union of India, (1980) Supp. SCC 559, while the discretion to change the policy in exercise of the executive power, when not trammelled by the statute or rule, was held to be wide, it was emphasised as imperative and implicit in Article 14 of the Constitution that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone, irrespective of the field of activity of the State, has long been settled. Later decisions of this Court have reinforced the foundation of this tenet and it would be sufficient to refer only to two recent decisions of this Court for this purpose.
18. In case of State of Punjab and another vs. Brijeshwar Singh Chahal and another reported in (2016) 6 SCC 1, following observations were made:
"17. We have not been able to persuade ourselves to accept the view that even when the appointments are made to offices heavily remunerated from the public exchequer the same can or ought to remain unregulated. That is particularly so when those appointed are expected by the very nature of their appointment to discharge important public function Page 22 of 28 affecting not only State interest but the quality of justice which the courts administer. There is in the case of Punjab and Haryana not even a semblance of any selection process in the matter of appointment of those chosen for the job leave alone a process that is credible in terms of its fairness and objectivity. The practice of making appointments in disregard of what is expected of a functionary sensitive to the demands of fairness and equality of opportunity even when in vogue for long, runs contrary to the true legal position settled by a long line of decisions to which we shall presently refer. The dominant purpose which ought to permeate any process of selection and appointment namely "protection of public interest" in courts by availing services of the most meritorious is clearly defeated by the method that the States have been following and continue to follow. What is regrettable is that even after the pronouncements of this Court have settled the principles on which public authorities are required to act while discharging their functions, the States continue to harp on the theory that in the matter of engagement of State counsel they are not accountable and that the engagement is only professional and/or contractual, hence, unquestionable. It is, in our view, too late in the day for any public functionary or Government to advance such a contention leave alone expect this Court to accept the same. If a Government counsel discharges an important public function and if it is the primary duty of those running the affairs of the Government to act fairly, objectively and on a non- discriminatory basis, there is no option for them except to choose the best at the Bar out of those who are willing and at times keen to work as State counsel. It is also their duty to ensure that the process by which the best are selected is transparent and credible. Abdicating that important function in favour of the Page 23 of 28 Advocate General of the State who, in turn, has neither the assistance of norms or procedure to follow nor a mechanism for assessment of merit will be self- defeating. We regret to say that in the matter of appointment of State Counsel, the States of Punjab and Haryana have much to do to reform the prevalent system which reform is in our opinion long overdue.
19. It is by now, fairly well settled that not only the Government but all public bodies are trustees of the power vested in them and custodians of public interest. Discharge of that trust in the best possible manner is the primary duty of those in charge of the affairs of the State or public body. This necessarily implies that the nature of functions and duties including the power to engage, employ or recruit servants, agents, advisors and representatives must be exercised in a fair, reasonable, non-discriminatory and objective manner. It is also fairly well settled that duty to act fairly and reasonably is a facet of "Rule of Law" in a constitutional democracy like ours. A long line of decisions of this Court over the past five decades or so have ruled that arbitrariness has no place in a polity governed by Rule of Law and that Article 14 of the Constitution of India strikes at arbitrariness in every State action. We may gainfully refer to some of these decisions, not so much to add to their content as to remind ourselves that we have come a long way in the matter of settling the contours of the doctrine of Rule of Law of which equality is one significant feature."
19. In case of State of Uttar Pradesh and others vs. Ajay Kumar Sharma and another, reported in (2016) 15 SCC 289, the Court noted with approval the observations by the Supreme Page 24 of 28 Court in case of State of U.P. v. Johri Mal (2004) 4 SCC 714 making following observations:
"19. In Johri Mal (2004) 4 SCC 714, this Court perused the LR Manual as also the Code of Criminal Procedure and reiterated that the District Counsel stood professionally engaged; that the State Government was free to determine the course of action after being satisfied of their performance, and that the courts must be circumspect in the exercise of judicial review on matters which fell within the discretion of the State Government i.e. appointment of their counsel or advocates. This Court reiterated that the District Counsel do not enjoy the statutory rights with respect to the renewals of tenures and the State Government enjoyed the discretionary powers in this respect. The curial performance of the advocates should not be the sole criterion for their reappointment as District Counsel and that the State Government must be free to repose trust and confidence in the persons whom they choose to appoint as their advocates. We can do no better than reproduce the following paragraphs from this judgment which is binding on us as also on any and every other two-Judge Bench: (SCC pp. 735-36 & 745, paras 40-41, 44, 46 & 75)".
20. We may now deal with the decisions cited by the learned Advocate General. In case of Harpal Singh Chauhan and others vs. State of U.P., reported in (1993) 3 SCC 552, the Court was considering non renewal of the term of the Public Prosecutors and Additional Public Prosecutors by the State Government. It was in this background the Supreme Court had observed that none of the appellants can claim, as a matter of right, that their terms should have been extended or that they should be appointed against the Page 25 of 28 existing vacancies. In the same context, the Supreme Court had also observed that they can certainly make a grievance that either they have not received the fair treatment by the authority or that the procedure prescribed in the Criminal Procedure Code and a Criminal Manual have not been followed.
21. The learned Advocate General had also relied on the decision in case of State of Punjab and another vs. Brijeshwar Singh Chahal and another (supra) in which he had emphasized on the following observations:
"41.9. The Government and public bodies are free to choose the method for selecting the best lawyers but any such selection and appointment process must demonstrate that a search for the meritorious was undertaken and that the process was unaffected by any extraneous considerations."
In fact our opinion, these observations would further the case of the petitioners. The Supreme Court had observed that the Government and public bodies are free to choose the method for selecting the best lawyers but such method must demonstrate that a search for meritorious candidates was undertaken and that the process was unaffected by any extraneous considerations. Choosing and appointing a candidate way below in the select list ignoring the prior rightful claims of those placed higher in the select list without assigning any reasons whatsoever would be a case where the Government can be stated to have failed in showing that the process was unaffected by extraneous considerations.
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22. Reliance was placed on decision of Supreme Court in case of Deepak Aggarwal vs. Keshav Kaushik and others, reported in (2013) 5 SCC 277, in which the Supreme Court had highlighted that the legal profession is essentially a service oriented profession. The Court had also made a distinction between practicing advocate, who would represent the Government and those appointed by the Government in its service as Law Officers.
23. Reliance is placed on the decision of Supreme Court in case of Johri Mal (supra) in which the Court was of the opinion that the denial of renewal of tenure of a Government Advocate though is subject to judicial scrutiny on the ground of arbitrariness or malice, the Court would not examine as to what impelled the State not to renew the incumbent's tenure.
24. Only argument of the learned Advocate General, which remains to be commented upon, is that since the Assistant Public Prosecutors in the State of Tripura do not enjoy a public employment, neither Article 14 nor Article 16 would apply while making their appointments. He would argue that the Supreme Court has also made a clear distinction between the Judicial Officers working under the Government as Government servants and those Government Advocates, who are engaged on retainer basis. In our opinion, it is too late in the day to press this contention in service. The entire parameters for appointment of Assistant Public Prosecutors have been laid down in the earlier public interest petition to which we have made a detailed reference earlier. In order to streamline the selection and Page 27 of 28 appointment process the Court had urged the Government to frame a scheme, which was duly framed and approved by the High Court. The Government must operate within the terms of the scheme only. As noted earlier and an aspect which we would like to reiterate, the scheme does not envisage that a selection panel would draw a list of candidates which would be forwarded to the Government for appointment as per the wish of the Government. The scheme envisages the entire procedure starting from inviting applications of eligible candidates till making their appointments in terms of the list prepared by the Selection Committee and forwarded to the Government. If the Government has tangible material to come to the conclusion that it is either not desirable or advisable to appoint any of the selected candidates, the Government can as well deviate from the recommendations of the Selection Committee, but not otherwise. In other words, once the list is prepared by the Selection Committee by following the procedure laid down in the scheme contained in the Notification dated 28.09.2018, the Government would be obliged to make appointment of the candidates as per the relative merits and placement in the select list to the extent of requirement. Only in special case where the Government on the basis of material on record by citing brief reasons on the file (not necessarily to be disclosed) finds that it is either not advisable or desirable to appoint a particular selected candidate, may select a person below him. These directions and guidelines shall be followed in all future procedures.
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25. In the result, appointment of respondents No.4 to 7 as Assistant Public Prosecutors by the impugned Notification, are set aside. The respondents shall issue appointment orders in favour of the petitioners within a period of 2 (two) months from today. Any subsequent appointments to be made for the notified vacancies shall also be as per the merit position reflecting in the select list.
26. With these directions, petition is disposed of.
(ARINDAM LODH), J (AKIL KURESHI), CJ sima