Orissa High Court
Naba Kishore Laha And Ors. vs State Of Orissa And Ors. [Alongwith ... on 30 April, 2001
Equivalent citations: 2001(I)OLR637
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT R.K. Patra, J.
1. In these four writ petition, the decision of the State Government in the Law Department contained in letters No. 11410 dated 13.9.2000. No. 13625 dated 6.11.2000 (Annexures-8 and 8A in O.J.C. No. 135 of 200.1) requesting the District Magistrates of 30 districts of the State to recommend names of panel of five advocates against each posts of Public Prosecutor, Additional Public Prosecutor, Assistant Public Prosecutor, Government Pleader, Additional Government Pleader and Associate Lawyer under Rule 5 of the Orissa Law Officers Rules, 1971 read with Section 24, Cr.P.C. is the subject matter of challenge. The Law Department's letter No. 15674 dated 30.11.2000 (Annexure-9 in O.J.C. No. 135 of 2000) appointing 16 advocates as Assistant Public Prosecutors under Rule 5 of the Orissa Law Officers Rules, 1971 in the Courts of Magistrates (both judiciary and executive) at Jaipur and Jajpui Road has been assailed. The petitioners have prayed that the opposite parties should be directed to complete the process of selection of Public Prosecutors and Assistant Public Prosecutors already made under the Orissa State Prosecution Service Rules, 1997.
For the sake of relevancy, we may briefly indicate the facts of each of the writ petitions which are as follows :
(i) OJC No. 11486/2000 :
In this writ petition there are 24 petitioners who claim that they are the existing Public Prosecutors and Assistant Public Prosecutors at Cuttack, Jajpur, Puri Bhadrak, Balasore, Sonepur and Keonjhar, They seek quashing of the aforesaid Law Department's letters at Annexures- 8, 8A and 9 referred to in O.J.C. No. 135 of 2001.
(ii) OJC No. 11789/2000 :
There are 1 8 petitioners in this case. Their case is that they have been selected by the Orissa Public Service Commission as Public Prosecutors under the Orissa State Prosecution Service Rules, 1997 and accordingly they have prayed that the Government should be directed to issue appointment orders to them.
(iii) OJC No. 135/2001 :
There are 16 petitioners in this case. Their case is that they have been selected by the Orissa Public Service Commission as Assistant Public Prosecutors under the Orissa State Prosecution Service Rules, 1997 and Government should be commanded to appoint them as per their selection. They have also prayed for quashing of the Law Department's letters at Annexures-8, 8A and 9.
(iv) OJC No. 1295/2001 :
This is a writ petition filed by a lone petitioner who claims that he is an existing Government Pleader at Jajpur. He seeks quashing of the Law Department's letter No. 11410 dated 13.9.2000 referred to as Annexure-8 in OJC No. 135 of 2001.
2. As common questions arise in all these four writ petitions, they were heard together and are disposed of by this common judgment.
3. At the outset it is made clear that we are here not concerned with the appointments of Government Pleaders, Additional Government Pleaders and Associate Lawyers in view of the fact that appointments to these posts are not governed under the Orissa State Prosecution Service Rules, 1997. The controversy before us being limited to recruitment/ appointment to the posts of Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors, we may profitably refer to the existing practice of their recruitment/appointment in the State. Just prior to coming into force of the Code of Criminal Procedure,, 1973, the State Government in the Law Department had made a set of Rules called "Orissa Law Officers' Rules, 1971" to regulate appointment of Law Officers to conduct cases on behalf of the State at the district headquarters and in other subordinate Courts of the district. It may be noted that these Rules are in the nature of administrative instructions and are in force. The expression "Law Officer" has been defined in Rule 1 (3)(a) and (b) to mean Government Pleader and Public Prosecutor, Associate Lawyer, Special Counsel, Junior Counsel and State Defence Counsel. Public Prosecutor under the aforesaid Rules means any person appointed Under Section 492(1) of the Code of Criminal Procedure, 1898. Associate Lawyer has been defined to mean a person acting under the direction of the Public Prosecutor. The procedure for appointment of the Law Officers including Public Prosecutor and Associate Lawyer has been mentioned in Rules 5 and 12. As per the procedure, the District Magistrate shall draw up a panel of five names arranged in order of merit from amongst the legal practitioners of the district in consultation with the District and Sessions Judge and submit the same with his recommendations to the Legal Remembrancer of the Law Department for the orders of the State Government.
At this stage, it would be appropriate to refer to Sections 24 and 25 of the Code of Criminal Procedure, 1973 which deal with appointment of Public Prosecutors and Assistant Public Prosecutors. As we are not concerned with the appointment of Public Prosecutors or Additional Public Prosecutors by the Central Government or by the State Government in the High Court, we need not refer to Sub-sees. (1), (2), (8) and (9) of Section 24. Sub-section (3) of Section 24 lays down that the State Government shall appoint Public Prosecutor for every district and may also appoint one or more Additional Public Prosecutors for the district. Under Sub-section (4) the District Magistrate has to prepare a panel of names of persons considered fit for such appointments in consultation with the Sessions Judge. Sub-section (5) prohibits against appointment of any person as the Public Prosecutor or Additional Public Prosecutor for the district unless his name finds place in the panel prepared by the District Magistrate under Sub-section (4). Sub-section (6) states that notwithstanding anything contained in Sub-section (5.) where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre, provided that where in the opinion of the State Government no such person is available in such Cadre for such appointment, it may appoint a person as Public Prosecutor or Additional Public Prosecutor from the Panel of names prepared by the District Magistrate under Sub-section (4). Section 25 deals with appointment of Assistant Public Prosecutors. Under Sub-section (1) of Section 25 the State Government is to appoint in every district one or more Assistant Public Prosecutors for conducting prosecution in the Courts of Magistrates.
The present controversy with regard to appointment and/or non- appointment of Public Prosecutors, Additional Public Prosecutors, Assistant Public Prosecutors has surfaced because of promulgation of the Orissa State Prosecution Service Rules, 1997 as envisaged Under Section 24(6) of the Code of Criminal Procedure, 1973. These rules have been made by the State Government in the Home Department in exercise of powers conferred by proviso to Article 309 of the Constitution of India read with Sections 24 and 25 of the Code of Criminal Procedure, 1973 to regulate recruitment and conditions of the State Prosecution service. These Rules (hereinafter referred to as ' 1997 Rules') have come into force on 16.3.1998 (on the date of their publication in the Orissa Gazette). Under these Rules, the appointing authority to the Cadre of the State Prosecution service is the Government in Home Department. Under the 1997 Rules, State Prosecution Service has been constituted with the following Cadres in hierarchical order :
(a) Assistant Public Prosecutor (Group 'B' service)
(b) Additional Public Prosecutor (Group 'A' service)
(c) Public Prosecutor (Group 'A' service)
(d) Deputy Director of Public Prosecution (Group 'A' service)
(e) Joint Director of Public Prosecution (Group 'A' service)
(f) Director of Public Prosecution (Group 'A' service) Presently we are not concerned with regard to the Cadres of (d), (e) and (f) mentioned above. Rule 4.1 provides that recruitment to the Cadre of Assistant Public Prosecutor (Group 'B' service) shall be made by the Orissa Public Service Commission by way of direct recruitment from the open market. Rule 4.2 says that recruitment to the Cadre of Additional Public Prosecutor (Group 'A' service) shall be made by way of promotion in consultation with the Orissa Public Service Commission from the cadre of eligible Assistant Public Prosecutors who have put up not less than eight years of continuous service in that Cadre. Rule 4.3 provides that 75% of the vacancies arising in the Cadre of Public Prosecutors shall be filed up by way of promotion from the Cadre of Additional Public Prosecutors who have put up not less than five years of continuous service in that Cadre in consultation with the Orissa Public Service Commission and the balance 25% of the vacancies arising in the Cadre every year shall be filled up by way of direct recruitment from open market through competitive recruitment examination to be conducted by the Orissa Public Service Commission.
It is on record that after coming into force of 1997 Rules, the Government in the Home Department have created posts for the cadre based prosecution system in the State in its letter No. 60532 dated 7.10.1998 as follows :
Sl. No. Name of Posts. Number of posts. 1. Public Prosecutor 20 2. Additional Public Prosecutor 18 3. Assistant Public Prosecutor 202 4. Senior Stenographer 31 5. Junior Stenographer 18
4. Pursuant to 1997 Rules steps were taken for recruitment to the posts of Public Prosecutor and Assistant Public Prosecutor. The Orissa Public Service Commission issued separate advertisement in July, 1999 for recruitment of 23 posts of Public Prosecutor (Group 'A' service) and 208 posts of Assistant Public Prosecutors (Group 'B' service) by way of direct recruitment. After holding written examination and viva- voce test, the Commission have recommended to the State Government 20 and 25 candidates for appointment to the posts of Public Prosecutor (Group 'A' service) and Assistant Public Prosecutor (Group 'B' service) respectively.
5. The Government in the Law Department has filed counter affidavit in O.J.C. No. 11486 of 2000. Its case is that it has found that adequate number of candidates are not available for appointment to the various categories of posts under the 1997 Rules. For each district one Public Prosecutor is to be appointed except Khurda where to Public Prosecutors are required to be appointed. There are many Additional Public Prosecutors to assist the Public Prosecutor. Besides appointment of Additional Public Prosecutors, the Law Department appoints Associate Lawyers (as many as 80) under the Orissa Law Officers' Rules, 1 971 to conduct cases in different subordinate Courts in the State. The selection of 20 candidates as Public Prosecutors and 25 candidates as Assistant Public Prosecutors by the Public Service Commission under the 1997 Rules is too inadequate to meet the vacancy position throughout the State. To meet such contingency, the 1997 Rules has provided a transitional provision in Rule 16 (2) which states that till regular appointments are made under the 1997 Rules, the existing practice of appointment shall continue. Therefore, the present appointment of Law Officers by the Law Departments under the Orissa Law Officers' Rules, 1971 is an interim-arrangement to meet the need of the hour and it would come to an end as soon as regular and adequate appointments are made available to the Home Department under the 1997 Rules by the Orissa Public Service Commission.
6. Counsel for the petitioners submitted that the blanket order of termination of services of Public Prosecutors in the State is arbitrary and as such it should be set aside. In this connection, he referred to the judgments of the Supreme Court in Shrilekha Vidyarthi v. State of U.P., A.I.R. 1991 S.C. 537 and State of U.P. v. Ramesh Ch. Sharma, A.I.R, 1996 S.C. 864. In the first case the Uttar Pradesh Government by a blanker order terminated the appointments of all the government counsel in all the districts of the State. The Supreme Court set aside the said order as it was arbitrary and outcome of non-application of mind. The ratio of that case is not applicable to the cases at hand because there is nothing on record to show that the Government in the Law department has passed a blanket order terminating the appointment of all existing Law Officers without considering individual cases on its own merits. On the other hand, it appears that since the tenure of some incumbents has already expired, steps are being taken to fill up those vacancies in terms of the Orissa Law Officers' Rules, 1971 read with Sections 24 and 25 of the Code of Criminal Procedure, 1973.
7. On consideration of the main submission of counsel for parties and on due examination of the pleadings the following two questions arise for decision :
(i) Is the Law department now denuded of its power to appoint Public Prosecutors and Assistant Public Prosecutors under Rule 5 of the Orissa Law Officers' Rules, 1971 after corning into force of 1997 Rules.
(ii) Have the petitioners in O.J.C. Nos. 11789/2000 and 135/2000 got the right to be appointed as Public Prosecutors and Asst. Public Prosecutors merely because their names find place in the merit list prepared by the Orissa Public Service Commission.
8. Let us now proceed to consider the aforesaid two questions in Question No. (i) : It may be noted that 1997 Rules have been made by the Government in exercise of powers conferred by proviso to Article 309 of the Constitution of India. Undoubtedly they have statutory force. Law is well settled that even after rules are framed under Article 309, there is nothing to debar the Government to fill up gaps by administrative instruction on matters in respect of which the rules are silent. Such administrative instruction, however, should not run inconsistent with the rules framed under Article 309. Therefore, the applicability or invocation of the Orissa Law Officers' Rules, 1971 cannot be shut out merely because the 1997 Rules have come into force. In other words, the Orissa Law Officers' Rules, 1971 can operate in such field which is not covered by the 1997 Rules. This matter has been made clear in Rule 16 of the 1997 Rules itself which has been termed as transitional provision. It is relevant to extract the said Rule.
"16. Transitional Provision :
16.1. Notwithstanding anything to the contrary in these rules, fifty percent of the posts of Additional Public Prosecutor and Public Prosecutor as required to be filled up by promotion under these rules, shall be filled up in the first instance by the direct recruitment, through the Commission, by the persons having at least a Bachelor's Degree in Law from a recognised University and continuous active practice as an Advocate at the Bar of not less than -
(a) fifteen years in the case of Additional Public Prosecutor; and
(b) twenty years in the case of Public Prosecutor.
Provided that the person must not have exceeded the 50 years of age as on the first day of January of the year in which the vacancy is advertised;
Provided further that the person concerned must fulfil the eligibility criterion prescribed in Rule 5.1 above.
Provided further that the rules for reservation of vacancies shall be followed while making the above direct recruitments.
16.2. Save as provided in Sub-rule (1) in respect of posts required to be filled up by promotion under these rules, the existing practice in the matter of appointment to any such post shall continue until such time as the posts in the service can be filled up in accordance with these rules."
The word 'transitional' according to dictionary means, 'passage or change from one act or set of circumstances to another.' The objective of such provision is to bridge the gap between commencement of the Act and its operation prior to it. Explaining the role of 'transitional provision' in a statute, Bennion has stated :
"Where an Act contains substantive, amending or repealing enactments, it commonly also includes transitional provisions which regulate the coming into operation of those enactments and modify their effect during the period of transition. Where can Act fails to include such provisions expressly, the Court is required to draw inferences as to the intended transitional arrangements as, in the light of the interpretative criteria, it considers Parliament to have intended."
(Francies Bennion : Statutory Interpretation 2nd Edn.. p. 213) The learned author Has further pointed out :
"Transitional provisions in an Act or other instrument are provisions which spell out precisely when and how the operative parts of the instrument are to take effect. It is important for the Interpreter to realise, and bear constantly in mind, that what appears to be the plain meaning of a substantive enactment is often modified by transitional provisions located elsewhere in the Act." (p. 213).
Similarly Thornton in his treatise on Legislative Drafting has stated :
"The function of a transitional provision is to make special provision for the application of legislation to the circumstances which exist at the time when that legislation comes into force."
(See : Thornton on Legislative Drafting, 3rd Edit.. I987, p. 319, quoted in Britnell v. Secretary of State, 1991 (2) All ER 726, at p. 730. Lord Keith), (See paragraph 51 of the judgment of Supreme Court in K. S. Paripoornan v. State of Kerala, AIR 1995 S.C. 1012).
9. It may be seen that although Rule 4.2 of 1997 Rules states that recruitment to the cadre of Additional Public Prosecutor (Group 'A' service) shall be made by way of promotion from the cadre of eligible Assistant Public Prosecutors and Rule 4.3 provides 75% of vacancies arising in the cadre of Public Prosecutor shall be filled up way of promotion every year from the rank of Additional Public Prosecutors and 25% of vacancies in the said cadre shall be by way of direct recruitment, in the transitional provision i.e. in Rule 16 it has been laid down that notwithstanding anything contained to the contrary in the rules, 50% of the posts of Additional Public Prosecutor and Public Prosecutor shall be filled up in the first instance by direct recruitment through the Orissa Public Service Commission. This clearly indicates that the rule-making authority was aware that so far as recruitment to Additional Public Prosecutor is concerned, it cannot be done by way of promotion as required under Rule 4.2 because of immediate non-availability of candidates in the cadre of eligible Assistant Public Prosecutors having more than 8 years of continuous service in that cadre. Similarly, although 75% of the vacancies in the posts of Public Prosecutor are required to be filled up by Way of promotion it is not possible to do so because of immediate non-availability of Additional Public Prosecutors having 5 years of continuous service in the cadre. That is the reason why in Rule 16 provision has been made to fill up 50% of posts of Public Prosecutor and Additional Public Prosecutor by way of direct recruitment. Rule 16.2 makes the position further clear when it sates that except as provided in Sub-rule (1), in respect of posts required to be filled up by way of promotion, the existing practice in the matter of appointment to any such post shall continue until such time as the posts in the service can be filled up in accordance with these rules. It means that till the 1 997 Rules fully become functional, the existing practice in the matter of appointment of Public Prosecutors/Additional Public Prosecutors etc. shall continue. The existing practice is obviously the procedure prescribed under the Orissa Law Officers' Rules, 1971 read with Sections 24 and 25 of the Code of Criminal Procedure, 1973. Therefore, in our considered opinion, the. Law Department i:: competent to make appointment to the posts of Public Prosecutor/Additional Public Prosecutor/Assistant Public Prosecutor so long as it does not come in conflict with the recruitments made under 1997 Rules.
Question No. (ii) : It has been authoritatively laid down by the Supreme Court in a series of cases including one by a Constitution Bench that inclusion of the name of a candidate in the merit list does no,t confer on him/her any indefeasible right to appointment. (See Shankarsan Dash v. Union of India, A.I.R. 1991 S.C. 1612 (C.B.) Babita Prasad v. State of Bihar (1993) Supp. (3) S.C.C. 268; Union Territory of Chandigarh v. Dilbagh Singh, 1993 (1) S.C.C. 154; State of Bihar v. Secretariat Assistant Successful Examinees Union, 1994 (1) S.C.C. 126 and Union of India v. N. R. Banerjee A.I.R. 1997 S.C. 3761).
The Law Department in its counter affidavit has fairly stated that the candidates selected by the Orissa Public Service Commission will get their appointment in due course. In view of the fair stand taken by the Law Department, we all upon the opposite parties to issue forthwith appointment orders to the candidates who have already been selected by the Orissa Public Service Commission as Public Prosecutors/Additional Public Prosecutors/Assistant Public Prosecutors. Since they would be appointed under the orders of this Court, we direct the Home Department (it being the appointing authority under the 1997 Rules) to issue appointment orders subject to other formalities if any. Their postings however may be done after duly consulting with the Law Department. We have already held that the selection made by the Public Service Commission under the 1997 Rules may be inadequate to meet the entire vacancies in the State and the Law Department may have to make appointment under Rule 5 of the Orissa Law Officers' Rules, 1971 read with Sections 24 and 25 of the Code of Criminal Procedure, 1973 and discussion between the Home Department and Law Department is necessary because such appointments and consequent postings should not come in conflict with the recruitment/appointments made by the Home Department under the 1997 Rules.
In course of hearing of the cases, some argument was advanced as to whether after coming into force of 1997 Rules the Law Department continues to be the appointing authority of Public Prosecutors/Additional Public Prosecutors/Assistant Public Prosecutors. It appears that although there was some move to amend the heading 'Appointing of Law Officers under the Orissa State Public Prosecutor Service Rules, 1997 'to be dealt with by the Home Department in place of Law Department, the amendment was not carried and has been deferred which is evident from the G.A letter No. 9498 dated 28.1 1.2000 at Annexure-A of the counter filed by the Law Department in O.J.C. No. 1 1486/2000.
Before parting with the case, we may observe that the dispute regarding the power of appointment between two sister departments of the Government should not surface and it should be mutually settled. The 1997 Rules have been made with a view to recruit and appoint competent persons as Public Prosecutors/Additional Public Prosecutors/ Assistant Public Prosecutors for better administration of justice but at present recourse may have to be done by the Law Department to appoint Law Officers under the Orissa Law Officers' Rules, 1971 because of inadequate availability of Public Prosecutors/Additional Public Prosecutors/ Assistant Public Prosecutors under the 1971 Rules. We are sure, while making such appointments, the Law Department will adhere to the strict procedure provided for the purpose.
10. In the result, O.J.C. Nos, 11789/2000 and 135/2001 are allowed. O.J.C. Nos. 11486/2000 and 1295/2001 are disposed of.