Bombay High Court
Adult vs Government Pleader Office on 22 November, 2013
Bench: A.S. Oka, G.S. Patel
WP11069-11130-11-F
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO.11069 OF 2011
Shri. Suresh Shamrao Kamble
Adult, Occ. Advocate,
Residing at 1614/K, 'A' ward,
Tarabai Road,
Opp. Rankala Post Office,
Kolhapur city, Kolhapur. ...Petitioner
versus
1 State of Maharashtra.
[Summons to be served on the
Learned Government Pleader
appearing for State of
Maharashtra under Order
XXVII, Rule4, of the Code of
Civil Procedure, 1908].
2 The Honourable Minister for
Law and Judiciary
Government of Maharashtra
Mantralaya, Mumbai 400 032
[Summons to be served on the
Learned Government Pleader
appearing for State of
Maharashtra under Order
XXVII, Rule4, of the Code of
Civil Procedure, 1908].
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3 The Principal Secretary,
Law and Judiciary Department,
Government of Maharashtra,
Mantralaya, Mumbai 400 032.
[Summons to be served on the
Learned Government Pleader
appearing for State of
Maharashtra under Order
XXVII, Rule4, of the Code of
Civil Procedure, 1908].
4 Shri. Dilip Jinadattarao
Mangsule
Adult, Occ. District
Government Pleader, District
Government Pleader Office,
District & Sessions Court,
Kolhapur City, Kolhapur. ...Respondents
ALONG WITH
CIVIL WRIT PETITION NO. 11130 OF 2011
Shri. Suresh Shamrao Kamble
Adult, Occ. Advocate,
Residing at 1614/K, 'A' ward,
Tarabai Road,
Opp. Rankala Post Office,
Kolhapur city, Kolhapur. ...Petitioner
versus
1 State of Maharashtra.
[Summons to be served on the
Learned Government Pleader
appearing for State of
Maharashtra under Order
XXVII, Rule4, of the Code of
Civil Procedure, 1908].
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2 The Principal Secretary,
Law and Judiciary Department,
Government of Maharashtra,
Mantralaya, Mumbai 400 032.
[Summons to be served on the
Learned Government Pleader
appearing for State of
Maharashtra under Order
XXVII, Rule4, of the Code of
Civil Procedure, 1908].
3 The Learned Advocate
General
State of Maharashtra,
High court of Bombay,
Mumbai.
[Summons to be served on the
Learned Government Pleader
appearing for State of
Maharashtra under Order
XXVII, Rule4, of the Code of
Civil Procedure, 1908].
4 The Principal District and
Session Judge Kolhapur.
District Court, Kolhapur.
5 The District Collector,
Kolhapur,
Collector Office, Nagala Park,
Kolhapur.
[Summons to be served on the
Learned Government Pleader
appearing for State of
Maharashtra under Order
XXVII, Rule4, of the Code of
Civil Procedure, 1908].
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6 Smt. P. D. Desai
Adult, Occ. Service,
Being working as District Judge
1 District & Sessions Court,
Kolhapur City, Kolhapur.
7 Shri. Dilip Jinadattarao
Mangsule
Adult, Occ. District
Government Pleader, District
Government Pleader Office,
District & Sessions Court,
Kolhapur City, Kolhapur. ...Respondents
A PPEARANCES
FOR THE PETITIONER: Mr. A. V. Anturkar i/b Mr. S. B. Deshmukh,
(in both petitions) Advocate
"Kamble"
FOR THE RESPONDENT- Mr. D. J. Khambatta, Advocate-General,
STATE a/w Mr. S. K. Shinde, G.P. and Mr. Nitin
Deshpande, AGP.
FOR RESP.NO.6 Mr. M. J. Jamdar, Advocate
FOR RESP. NO.4 IN Mr. Amit Borkar, Advocate
WP 11069/2011 AND
RESP.NO.7 IN WP
11130/2011
"Mangsule"
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CORAM : A.S. Oka &
G.S. Patel, JJ.
JUDGEMENT RESERVED ON : 18th July 2013
JUDGEMENT PRONOUNCED ON : 22nd November 2013
JUDGMENT : (Per G.S. Patel, J.)
1. By an order dated 26th March 2013, parties were put to notice
that these two Writ Petitions would be taken up for final hearing at
the stage of admission. Hence, Rule. By consent, and on the
Respondents waiving service, Rule made returnable forthwith and
petitions taken up for hearing and final disposal.
2. The issue before us in both petitions, though seemingly
narrow, is one of significance to administration of law and justice in
the State of Maharashtra. The Petitioner, Suresh Shamrao Kamble
("Kamble") questions not only the appointment as District
Government Pleader and Public Prosecutor for Kolhapur District of
the 7th Respondent in Writ Petition 11130 of 2011, one Dilip
Jinadattarao Mangsule ("Mangsule"), but also the manner in which
that appointments was made, i.e., the decision-making process itself.
The Petitioner's case, as formulated by learned Counsel Mr. A.V.
Anturkar is, briefly, this: that the appointment of District
Government Pleaders and Public Prosecutors in the state is
governed by a statute. That statute requires a consultation between
the Principal District Judge and the District Magistrate (also the
District Collector) of candidates for the post. The consultation
results in a recommendation for State Government approval. If the
authority involved in the process does not, at the time of the
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consultation and ensuing recommendation, hold the post of District
Judge, then the decision-making process cannot be said to be in
conformity with statute, and the recommendation made is vitiated.
Further, a "consultation" means a meeting of minds, a sharing of
data and a common factual basis underlying the recommendation.
Where the two authorities are shown never to have 'consulted', but
where there has been merely a transmission of documents from one
office to another, there is no 'consultation' properly so called, and
this, too, renders the recommendation unlawful and contrary to law.
Moreover, a person presently holding the post--in this case,
Kamble, the Petitioner--is entitled under the applicable rules to
reappointment in that post.
3. We must state straightaway that as far as the Petitioner is
concerned, this issue is now academic since he is now age-barred
and cannot hold the post in question. We believe, however, that the
petitions raise important issues of governance in public office and
hence require a detailed examination.
4. In Writ Petition 11069 of 2011, Kamble challenges two orders
passed by the State Minister for Law & Judiciary on two notes dated
2nd June 2010 and 14th July 2010, prepared by the Desk Officer of
the State Government's Law & Judiciary Department, regarding the
proposal for reappointment of Kamble as District Government
Pleader and Public Prosecutor for Kolhapur District. He also seeks
an order directing the State Government and the Minister for Law &
Judiciary to take a decision on the proposal for reappointment of
Kamble's service in that post. In Writ Petition No. 11130 of 2011,
filed on the same day as the earlier writ petition, Kamble asks that
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the appointment order dated 3rd August 2011 in favour of Mangsule
be quashed.
II
5. Kamble is a practicing advocate. On 8th July 2007, he was
appointed District Government Pleader & Public Prosecutor for
Kolhapur District for three-year term, till 7th July 2010. He had
earlier, between 1999 and 2007, also served in this post and, before
that, as an Assistant Government Pleader for 10 years from 1989 to
1999.
6. On 12th August 2005--during Kamble's first term as District
Government Pleader & Public Prosecutor--a Division Bench of this
Court rendered its decision in Neelima Sadanand Vartak v State of
Maharashtra & Ors.1 That decision dealt with the functions to be
performed by the District Magistrate under Section 24(4) of the
Code of Criminal Procedure, 1973 ("CrPC") regarding the
appointment of public prosecutors for districts. It held that these are
statutory functions and are to be performed in consultation with the
District Judge, who has primacy because the post to be filled is that
of a public prosecutor in the District Judge's court. The District
Magistrate, on the other hand, would have some knowledge of the
candidates' reputation other than in the court of the District Judge.
Therefore, the two, viz., the District Judge and the District
Magistrate, were required to have an effective consultation on the
names of suitable candidates for the post, following which their
short-list would be sent to the Government. This was not a function
2005 (4) Mh L J 326; copy at Exhibit "C" to WP 11130 of 2011.
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that the Law Secretary and the Advocate-General alone could
discharge in law. The Neelima Vartak court also considered the
decision of the Supreme Court in State of UP v Johri Mal2 Delivered
a year earlier. We will turn to both these decisions presently. 3
7. The events in these two petitions relate to slightly different
periods. Writ Petition No.11069 of 2011 pertains to the period from
April 2010 to 19th July 2010, while Writ Petition No.11130 of 2011
relates to events thereafter. The first period is about Kamble's
application for reappointment and continuance in the post of
District Government Pleader and Public Prosecutor for Kolhapur
District. The second period relates to the selection of new
candidates to that post.
8. As we have noted, Kamble was appointed as District
Government Pleader and Public Prosecutor for Kolhapur District on
8th July 2008. His tenure was for three years, till 7th July 2010. On
20th April 2010, a few months before Kamble's tenure ended, the
Principal Secretary and Remembrancer of Legal Affairs of the Law
& Judiciary Department of the Government of Maharashtra ("Law
Secretary") called for a report from the District Collector,
Kolhapur in regard to Kamble's possible extension or reappointment
as District Government Pleader and Public Prosecutor for Kolhapur
District. The District Collector is also the District Magistrate. An
extension or continuance is permissible subject to certain conditions
under the Maharashtra Law Officers (Appointment, Conditions of
(2004) 4 SCC 714
It is piquant to note, if only in passing, that Mr. Anturkar also appeared
for the petitioner in Neelima Vartak.
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Service and Remuneration) Rules, 1984 and the Rules for the
Conduct of Legal Affairs of Government, 1984 (collectively, "the
Rules"). In response to the letter dated 20th April 2010, the then
Principal District & Sessions Judge wrote to the Additional District
Magistrate on 12th May 2010 saying that Kamble was qualified and
suitable for reappointment.
9. On 15th May 2010, the District Magistrate wrote to the Law
Secretary, also recommending Kamble's name. In making this
recommendation, the District Magistrate considered the view of the
Principal District & Sessions Judge. Therefore, when, in mid-May
2010, the matter entered Mantralaya, there were two reports
favourable to Kamble, one from the Principal District & Sessions
Judge and the other from the District Magistrate, both
recommending his continuance and reappointment to the post of
District Government Pleader and Public Prosecutor.
10. In Writ Petition No.11069 of 2011, Kamble now points out
that the file and papers pertaining to his reappointment and
extension contained various notes. The first is a note of unknown
authorship, but believed by Kamble to have been prepared by the
Law Secretary. It is dated 2nd June 2010. It says that the present
situation should be placed before the Hon'ble Minister but several
Assistant Government Pleaders were unhappy with Kamble's
conduct and performance. On what material this comment or note is
based is unknown.
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11. There is also another note dated 14th July 2010. Leaving aside
the Petitioner's comments as to the state of the file, what is material
is that this second note says that the Hon'ble Minister has orally
directed that further proceedings regarding Kamble's candidacy for
reappointment be stayed. Then there is a further endorsement by
the Hon'ble Minister directing that further action be taken as
directed and that fresh names be called for immediately. It then
seems that at some point between 14th July 2010 and 19th July 2010,
the Hon'ble Minister took a decision, also duly noted on the file, to
the effect that Kamble should not be given the post, and that one
Mrs. Gaikwad should be allowed to assume charge. It seems that
this order was orally stayed by the Hon'ble Minister himself. In the
meantime, complaints were received against Mrs. Gaikwad. The file
indicates that there were communications received from Shri K.P.
Patil and Shri Satej alias Bunty Patil, both Members of Legislative
Assembly, in regard to who should be appointed to this post.
Kamble's candidacy for reappointment does not seem to have found
favour.
12. Later events overtook the Petitioner. Mangsule came to be
appointed District Government Pleader and Public Prosecutor. The
factual narrative relating to the appointment follows. For the
present, it is sufficient to note that in Writ Petition No.11069 of 2011
the challenge is to these two file notes dated 2nd June 2010 and 14th
July 2010. These had the combined effect of bringing to a halt
Kamble's proposal for reappointment as a District Government
Pleader and Public Prosecutor.
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13. Following the Neelima Vartak decision, on 19th July 2010, the
State Government's Law & Judiciary Department wrote to the 5th
Respondent, the District Magistrate/Collector, asking him to
empanel advocate candidates for appointment to the post of District
Government Pleader and Public Prosecutor for Kolhapur District. 4
14. A short while earlier, on 7th June 2010, the 6th Respondent,
the Learned Judge Smt. Desai took charge as the District Judge-I
and Additional Sessions Judge Kolhapur. On 1st August 2010, she
was given temporary charge as Principal District & Sessions Judge,
Kolhapur.
15. The last date for submitting applications was 5th August
2010. The office of the District Magistrate received some 34
applications. Kamble and Mangsule were among those who applied.
16. On 23rd August 2010, the 6th Respondent, then holding
charge as Principal District & Sessions Judge, wrote to the District
Magistrate.5 In her letter, the Learned Judge said that 34 advocates
had applied for appointment to the post and that a meeting had been
called on 26th August 2010 at 5:00 pm to consider these
applications.
17. At this point, what Mr. Anturkar describes--not inaccurately
--as a "tug-of-war" seems to have begun between these two
functionaries. On 14th September 2010, the District Magistrate
replied to the Principal District Judge, asking that she come to his
Copy at Exhibit "B" to WP 11130 of 2011.
Copy at Exhibit "F" to WP 11130 of 2011.
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office on 17th September 2010 (and not vice versa) to discuss these
applications.6
18. On 21st September 2010, the Principal District Judge called
for confidential reports from District Judges of Kolhapur District on
the various applications. She then prepared an opinion/report on
the basis of those reports and her own assessment of the candidates,
and forwarded this report to the District Magistrate on 7th October
2010.
19. On 11th October 2010, the Learned Judge Smt. Desai ceased
to hold charge as Principal District Judge. She continued as a
District Judge. Shri. R.C. Patale, till then District Judge, took over
as Principal District and Sessions Judge, Kolhapur. On that very
date, the Learned Judge Smt. Desai sent yet another communication
to the District Magistrate, ostensibly still in the capacity of the
person holding charge as Principal District & Sessions Judge even
though the Learned Judge Shri. Patale had by then taken over. The
Learned Judge Smt. Desai has filed an affidavit in reply to Writ
Petition 11130 of 2011. In this, she says that after she sent her
opinion on 7th October 2010, the District Magistrate sent his office
clerk to her to say that her opinion was not in the format prescribed.
Therefore, the Learned Judge says, although she no longer held
office as the Principal District & Sessions Judge on 11th October
2010, she merely re-transmitted the same earlier document -- her
opinion sent on 7th October 2010 -- in the required format,
changing the despatch date to 11th October 2010. There is, she says,
no other difference at all in the two communications of 7th October
Copy at Exhibit "G" to WP 11130 of 2011.
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2010 and 11th October 2010. She says she prepared and signed the
second document of 11th October 2010 before she demitted office,
in the bona fide belief that she could continue to discharge her
functions till the Learned Judge Mr. Patale formally took office at
10:30 that morning.
20. What was the opinion of the Learned Judge, Smt. Desai? It
contained a short-list of three candidates. Mangsule was one.
Kamble was another. One Altaf M. Pirjade was the third. The
Learned Judge recommended Mangsule. Mr. Anturkar says that on
its own, and but for the events that then unfolded, the Learned
Judge's explanation for sending the second letter or communication
of 11th October 2010 might have pasted muster. Some time in
November 2011, Kamble filed applications under the Right to
Information Act in relation to this inter-office chain of
communication. He specifically asked whether the Learned Judge
had written any letter after 11th October 2010. The answer given to
him was that:
"except the report dated 11th October 2010, no other
correspondence is made by in-charge Principal District
Judge, Kolhapur to the Honourable Collector, Kolhapur, in
this regards."
This is entirely consistent with the Learned Judge's affidavit.
Unfortunately, according to Mr. Anturkar, both are incorrect, and
demonstrably so. For it was on 13th October 2010 that the District
Magistrate wrote to the Learned Judge (by name) to say that her
report, opinion or short-list was not in the format prescribed, Form
A-1.7 Mr. Anturkar says that since by this time the Learned Judge no
Letter copy at Exhibit "K" to WP 11130 of 2011.
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longer held charge as Principal District Judge and the Learned
Judge Mr. Patale had been appointed to that post, it was to be
expected that the response to this letter would come from him, not
her. Instead, the very next day, 14th October 2010, it was the
Learned Judge Smt. Desai who replied to the District Magistrate,
once again re-submitting the names and details of the three short-
listed candidates, this time in the required format.
21. There are many remarkable things about this letter of 14th
October 2010, says Mr. Anturkar, not the least of which is that there
is no mention of it in the Learned Judge's Affidavit or in the reply to
Kamble's RTI queries. The letter is signed by the Learned Judge
qua "I/c Principal District & Sessions Judge Kolhapur". On 14th
October 2010, the Learned Judge did not hold that position. The
letter has no outward reference number. How it passed through the
regular despatch channels without an outgoing reference is
unexplained. The letter specifically references the District
Magistrate's letter of the previous day asking that the report be
submitted in the required format. This is of some significance, in
Mr. Anturkar's submission, because the Learned Judge is at some
pains to say that her first submission on 7th October 2010 and her
re-submission on 11th October 2010 both bore an outward reference
number, and that it was the same: 279. Why and how she wrote the
letter of 14th October 2010 is unexplained. Whether any of this has
the legal consequence that Mr. Anturkar contends is a matter to be
examined.
22. Mr. Anturkar's submissions centre around these events. Writ
Petition No.11130 of 2011 also contains a frontal challenge to the
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merits (or, as Mr. Anturkar would rather have it, the demerits) of the
Learned Judge's opinion and recommendation. To complete the
factual narrative: the short-list of three candidates, by now in the
stipulated format, was sent on its way to the State Government. On
22nd April 2011, a "High Power Committee" ("HPC"),
constituted by the State Government for this purpose, met to
discuss the recommendations. The HPC includes the Advocate-
General and the State Government's Law Secretary. It adopted Mrs.
P. D. Desai's recommendation of Mangsule. On 3rd August 2011, a
final notification was issued under Section 24(3) of the CrPC and
under Order XXVII of the Code of Civil Procedure, 1908,
appointing Mangsule as the District Government Pleader and Public
Prosecutor for Kolhapur District for a three year term. Kamble
challenges this appointment and notification in Writ Petition 11130
of 2011.
III
23. This is how Mr. Anturkar framed his submissions:
(a) On 11th October 2010, when the Learned Judge Desai
re-transmitted her opinion and recommendations in
the required format (on the basis of an oral request so
to do from the office of the District Collector), she was
not the Principal District Judge empowered ex officio to
make this recommendation at all. She had, by then, and
at 10:30 that morning, handed over charge of that office
to the Learned Judge Mr. Patale. It makes no difference
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that she continued as a District Judge. She was at the
time not the Principal District Judge. In any event, she
could certainly not have written any further letter on
14th October 2011 as she then purported to do. That
letter of 14th October 2011 is the final, official
communication by which the Learned Judge sent her
opinion and recommendations in the required format to
the District Collector. On that day, she lacked all legal
and statutory authority to do so. There was, therefore,
no 'consultation' with the Principal Judge as required
by law, following Neelima Vartak.
(b) Even otherwise, according to Mr. Anturkar, there has
been no 'consultation' at all. A consultation, in law,
involves a meeting, a sharing of information and data,
an exchange of views and a meeting of minds, all of
which then -- and only then -- result in a
recommendation. This can never amount to a
consultation in law.
(c) Mr. Anturkar submits that a lawful 'consultation'
requires the occurrence of at least one of two things:
either the Principal District & Sessions Judge must
personally meet with the District Magistrate or,
alternatively, must make all material available to the
District Magistrate. There is no material to show that
Principal District Judge and the District Magistrate
ever met. Other than the names of the 34 candidates,
the Principal District Judge and the District Magistrate
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do not seem to have shared any information. On her
own showing, the Principal District Judge called for
confidential reports from other District Judges about
all the candidates. She studied these. She then whittled
down the list to three names (Mangsule, Kamble and
Pirjade), and sent on this short-list, prepared by her
alone, to the District Magistrate. She does not seem to
have shared the confidential reports that she received
with him. This, Mr. Anturkar submits, is no
consultation at all. There is no such thing in law as a
'deemed' consultation. Either there is a consultation or
there is not.
(d) In Mr. Anturkar's submission, any such one-way traffic
of information or views is no consultation at all; and the
resultant recommendation cannot, therefore, be said to
be one arrived at in accordance with law. No sanctity
can be afforded to any such recommendation, even by
subsequent actions, including by actions of third
parties, no matter how highly placed.
(e) Thus, on both grounds, i.e., lack of consultation as also
the lack of proper authority vested at the relevant time
in the Learned Judge Smt. Desai, the recommendation
or short-list prepared by her is entirely contrary to law
and had no legal effect.
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(f ) Mr. Anturkar also quarrels with Learned Judge's
recommendations on merits, submitting that she
herself had insufficient experience to make any
meaningful assessment of the candidates; that in fact
there were complaints in 2006 against Mangsule which
were over-looked or ignored (perhaps deliberately);
that Kamble received positive confidential reports from
several District Judges, and these, too, were similarly
over-looked or ignored; and, finally, that the Learned
Judge completely misdirected herself by saying in her
forwarding letter to the District Magistrate that her
short-list had been prepared on seniority-cum-merit.
This is a process of direct selection and seniority could
have had no possible role to play.
(g) It is, Mr. Anturkar submits, settled beyond any
possibility of doubt that it is the Principal District &
Sessions Judge who enjoys primacy in the matter of
appointment, both under CrPC as also under the Rules,
and in view of the decisions in Neelima Vartak and
Johri Mal, among others. The Learned Judge's short-
list was without authority. There was also no
consultation. This leaves only the opinion of the then
Principal District & Sessions Judge in May 2010,
confirmed by the District Magistrate recommending
Kamble for reappointment in the post. Kamble was,
therefore, was entitled to reappointment under the
Rules and this has been wrongly denied to him. Being
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an incumbent at the time, Kamble had, Mr. Antukar
submits, a legally enforceable right to reappointment.
(h) As regards the question of Kamble's reappointment,
Mr. Anturkar submits that on the face of it the record
demonstrates that highly placed individuals attempted
to interfere or inter-meddle with the reappointment
process. This interference by extra legal forces (it
would, in his submission, be incorrect to call them
'authorities') renders the entire decision not to
reappoint Kamble illegal and unlawful. This calls for
interference by this Court in exercise of its
discretionary powers under Article 226 of the
Constitution of India.
24. With the candour and fairness for which he is renowned, Mr.
Khambata, the learned Advocate-General, stated that so far as the
play of external forces in the matter of Kamble's continuance or
reappointment is concerned, there can be no denying that that
should never be permitted. However, in his submission,
reappointment is not a matter of right and regard must be had to the
wordings of the applicable Rules, particularly in contradistinction to
equivalent Rules in other States, where a single candidate is
frequently allowed an extension or renewal of tenure subject only to
any disqualifications that may have by then arisen. Being eligible for
reappointment, he submits, cannot be equated with having a right to
a renewal in that office for a further term. He also submitted that, as
a matter of public policy, and in furtherance of every principle of
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good and transparent governance, the selection must be made from
a pool of at least three candidates, if not more.
25. Mr. Borkar, Learned Advocate appearing for Mr. Mangsule
and Mr. Jamdar, learned Counsel appearing for the Learned Judge
Smt. Desai, joined Mr. Khambata in submitting that there is no legal
requirement of a consultation being made in any particular manner.
In their submission, Mr. Anturkar is not correct in contending that
there necessarily must be a meeting between the two persons or a
to-and-fro exchange. It is perfectly possible that one of the two
parties in the consultative process may make a recommendation to
the other, who may accept it without feeling the need to offer any
counter-suggestion. The fact that the second party accepts a
recommendation so made by the first does not, ipso facto, render the
process vulnerable for want of consultation. All that the consultation
requires is that the two authorities, one of whom has primacy, have
agreed -- or, more accurately, not disagreed -- on the names sent
on in the short-list. The District Magistrate had, before him, the
names of all 34 candidates. He could have differed from the opinion
expressed by the Learned Judge Smt. Desai. He was not bound to
accept it, follow it or merely send it on to the government. The
District Magistrate is not a mere routing channel or agency; that is
not the law's demand. To say that Learned Judge Smt. Desai, as the
acting Principal District & Sessions Judge, enjoyed primacy is not
the same as saying that her opinion was binding on the District
Magistrate, but merely that in the event of any difference of opinion,
her view would, perhaps, prevail.
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26. Mr. Khambata also points out that the two authorities had
slightly different remits. Each functioned in a slightly different
sphere. This means that the data relevant to the assessment of one
of them was not necessarily relevant to the other. A pooling of data
is not always essential. What the law requires is a mindful concord
by the two on the names suggested.
27. In the submission of all three learned counsel for the
Respondents, Mr. Anturkar attempts to make far too much of the
dates and sequencing of the correspondence between the Learned
Judge Smt. Desai and the District Magistrate, and takes far too
technical a view. That correspondence is entirely innocuous and,
they submit, absent any allegation of mala fides unsupported by
cogent material, Kamble's contentions are merely leaves in the
wind.
28. Mr. Borkar and Mr. Jamdar also joined Mr. Khambatta in
submitting that, in this particular case, Kamble participated in the
selection process by submitting an application for appointment as a
District Government Pleader and Public Prosecutor afresh after 19th
July 2010. He must, therefore, according to learned Counsels, be
deemed to have waived his right, if any, to challenge the result of the
selection process. He acquiesced in, and accepted, first, the decision
not to continue him in the post and, second, to call for a fresh
appointment. Kamble cannot demand that he, and he alone, be
appointed to the post. This is, after all, a professional appointment
and has been done by the Government purely on its administrative
side. There is no element of a quasi-judicial function having been
performed. A court will not, even in exercise of its discretion under
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Article 226 of the Constitution of India, interfere with the
administrative discretion of the State Government, nor will it
substitute its view for that of the Government. Further, the very fact
that Kamble was one of the three in the short-list itself destroys any
case on mala fides and establishes that this was a process and
decision taken purely on merits.
IV
29. Section 24 of the CrPC was set out and fully analyzed in
Neelima Vartak.8 That decision also reviews the relevant precedents,
including, importantly, Johri Mal9 and Harpal Singh Chauhan & Ors
v State of UP.10 In the latter two cases, the Supreme Court was
concerned with the Section 24 of the CrPC as amended in Uttar
Pradesh. Sub-sections (4), (5) and (6) were deleted by a state
amendment. In Maharashtra, too, there was an amendment to sub-
sections (1) and (4).
30. To understand the import of these decisions, we believe it is
useful to set out Section 24 in its entirety. This is Section 24 of the
CrPC. The struck-out portions in the extract below show the
deletions by Maharashtra Government state amendment, and the
portion emphasized in bold italics shows the additions by that
amendment.11
24. Public Prosecutors.--
supra
supra
(1993) 3 SCC 552
Maharashtra Act 34 of 1981, Section 2 (with effect from 20th May 1981)
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(1) For every High Court, the Central Government or
the State Government shall after consultation with the
High Court, appoint a Public Prosecutor and may also
appoint one or more Additional Public Prosecutors for
conducting in such court, any prosecution, appeal or other
proceeding on behalf of the Central Government or State
Government, as the case may be.
(2) The Central Government may appoint one or more
Public Prosecutors for the purpose of conducting any
case or class of cases in any district, or local area.
(3) For every district the State Government shall
appoint a Public Prosecutor and may also appoint one or
more Additional Public Prosecutors for the district:
PROVIDED that the Public Prosecutor or Additional Public
Prosecutor appointed for one district may be appointed
also to be a Public Prosecutor or an Additional Public
Prosecutor, as the case may be, for another district.
(4) The District Magistrate shall, in consolation with
the Sessions Judge with the approval of the State
Government, prepare, a panel of names of persons, who
are, in his opinion fit to be appointed as Public Prosecutor
or Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State
Government as the Public Prosecutor or Additional Public
Prosecutor for the district unless his name appears in the
panel of names prepared by the District Magistrate under
sub-section (4).
(6) Not withstanding 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 suitable person is available in such
Cadre for such appointment that Government may appoint
a person as Public Prosecutor or Additional Public
Prosecutor, as the case may be, from the panel of names
prepared by, the District Magistrate under sub-section (4).
(7) A person shall be eligible to be appointed as a
public Prosecutor under sub-section (1) or sub-section (2)
or sub-section (3) or sub-section (6), only if he has been
in practice as an advocate for not less than seven years.
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(8) The Central Government or the State Government
may appoint, for the purposes of any case or class of
cases, a person who has been in practice as an advocate
for not less than ten years as a Special Public Prosecutor.
(9) For the purposes of sub-section (7) and sub-section
(8), the period during which a person has been in practice,
is a pleader, or has rendered (whether before or after the
commencement of this Code) service as a Public
Prosecutor or as an Additional Public Prosecutor or
Assistant Public Prosecutor or other Prosecuting Officer,
by whatever name called, shall be deemed to be the
period during which such person has been in practice as
an advocate.
31. By an amendment of 1981 in Uttar Pradesh, the words "after
consultation with the High Court" in sub-section (1) were deleted,
and sub-sections (4), (5) and (6) were deleted altogether. In both the
Maharashtra and the Uttar Pradesh amendments, the statutory
endeavour was to eliminate the process of consultation and leave it
to the District Magistrate to forward names of candidates to the
State Government. The Supreme Court in Johri Mal negatived this
formulation, as did our court later in Neelima Vartak. The
appointment of public prosecutors is not a matter to be taken lightly.
District Government counsel are officers of the court and also
represent the State. They must enjoy the confidence of the court.
They are to be independent, impartial and undaunted in the
discharge of their many duties, regard being had to the provisions of
the CrPC and, in particular, Section 320. They must be persons of
character, ability, experience and standing at the Bar.12 In Johri Mal,
the Supreme Court noticed that it was a well-established that the
appointment of district government counsel was traditionally based
on the recommendations of the District Magistrate in consultation
Neelima Vartak, supra, paras 6 and 7.
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with the District Judge. The former is in a position to assess the
candidates' merit, competence and capability, while the latter can
assess their conduct outside court vis-à-vis victims, police officers,
witnesses and so on. Johri Mal is a decision of 2004, over a decade
after the Uttar Pradesh amendment to the CrPC. That amendment
notwithstanding, Johri Mal says that in the matter of these
appointments, consultation with the District Judge is not only
mandatory, but has to be given primacy. Before this court in Neelima
Vartak it was argued that the Johri Mal decision is prospective. That
submission was expressly rejected, saying that the Supreme Court in
Johri Mal was "only declaring the legal position as it exists." 13
32. The Neelima Vartak court then specifically examined the
impact of the Maharashtra state amendment to Section 24, and, in
particular, the deletion of the words "in consultation with the
Sessions Judge." It held that, read alone, this would cast the entire
burden of short-listing on the District Magistrate, who, given the
nature of his functions and duties, was in no position to make the
meaningful assessment that Section 24 demands. There is, the court
said, a difference between ability, fitness and competence to do the
work required of persons in a post and eligibility for that post.
Fitness and ability are matters that can only be assessed by the
District Judge, not the District Magistrate. The District Judge may
look to the views of his or her colleagues, too. The District
Magistrate would have to enquire as to the candidates' eligibility,
and this includes their reputation, social standing and conduct
outside court. However, given the nature of the post, and the
wording of the amended statute, the District Magistrate's opinion
Neelima Vartak, supra, para 21(i) and Johri Mal, supra, paras 85, 86
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must necessarily cover the candidates' competence and
performance. How, but for a consultation with the District Judge,
could the District Magistrate form any such opinion? It is, therefore,
Neelima Vartak says, for the District Magistrate to get the view of
the District Judge and prepare a short-list of candidates both
suitable and eligible.14
33. Before us, this legal position is not in dispute. The question is
whether the District Magistrate and the Learned Judge Smt. Desai,
then in charge as the Principal District & Sessions Judge, could be
said to have had a "consultation" as required in law. Mr. Anturkar
submits that a consultation necessarily means a meeting of minds
between the two persons concerned, a sharing of data and an
identity of factual material. Mr. Anturkar relies on State of Gujarat
& Anr v Gujarat Revenue Tribunal Bar Association & Anr.,15 to
buttress his proposition that to serve the intended purpose, a
consultation must be meaningful. It requires the meeting of minds
between the parties involved on the basis of material facts, and
requires that the party must disclose all the facts to the other for due
deliberation.16 Mr. Anturkar also cited the decision of a Division
Bench of this Court in this behalf, i.e., that there must be a sharing
or pooling of material and data.17 In Johri Mal18 the Supreme Court
held that the word consultation cannot be constrained by lexical
definition; it has varied, context-dependent, meanings. In a case like
Neelima Vartak, supra, para 21(ii)
(2012) 10 SCC 353
Gujarat Revenue Tribunal Bar Association, supra, Para 34
Pundalik Kadhav v District Deputy Registrar, Cooperative Societies,
Chandrapur & Ors., 1990 (2) Mh L J 925
Supra, paras 53 to 56
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the present one, consultation does not, for instance, always mean
concurrence, and all that the law requires is that the consultation be
effective. We must note that given the wording of the statute, it is
the District Magistrate who must "consult with" the District Judge.
The latter's opinion must be sought. In the present case, that this
was done is beyond dispute. Mr. Anturkar, however, goes above and
beyond when he asks us to hold that this also requires the District
Judge to consult with the District Magistrate and that there must,
therefore, be an overt sharing of the confidential reports elicited by
the District Judge. We understood Mr. Anturkar's submission to
mean that the Learned Judge Smt. Desai, qua Acting Principal
District & Sessions Judge, should have sent on to the District
Magistrate all the confidential reports she obtained from the other
District Judges on the 34 candidates for the post.
34. We are unable to accept this submission. In plain English,
"consult" means "to take counsel with; seek information or advice
from; take into consideration".19 Black's Law Dictionary defines
"consultation" as:
"1. the act of asking the advice or opinion of someone
(such as a lawyer). 2. A meeting in which parties consult
or confer. ..."20
The word has its etymological roots in the early 15th Century
Middle French consultation, itself from the Latin consultare, "to ask
counsel of, reflect, consider maturely." A personal meeting is,
therefore, but one means by which a consultation may be effected.
There may be others. It is also possible that, in a given situation,
Oxford Illustrated Dictionary, 2ed.
Black's Law Dictionary, 8th Edition, Bryan A. Garner, ed., 2004
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though the two may meet there may not be a "consultation" in any
sense of the word. We believe the word denotes nothing more than
(1) a passing of information at least from one to the other, though
possibly there may be more than one transmission; and (2) an
acceptance by one, even by necessary implication, of the views of
the other. Leaving aside for a moment the question of whether the
Learned Judge Smt. Desai had the authority she professed to
exercise when she exercised it, what seems to us to have happened is
this: she gathered information on all 34 candidates. She then made
her own assessment. All this she then marshalled and prepared her
short-list of three names, viz., Mangsule, Kamble and Pirjade; and
then sent her short-list to the District Magistrate. What is it that the
she could be said to have done? Following Neelima Vartak, all that
she did was opine as to the suitability of the candidates she short-
listed.
35. Mr. Anturkar's submission blurs the boundaries between the
fields of engagement of the two authorities. The District Judge and
the District Magistrate, as we have already noted, are to function in
two perhaps overlapping but markedly different fields. The District
Judge's assessment is as to suitability, i.e., competence and
capability. The confidential reports were all directed to this end.
The District Magistrate, on the other hand, must assess the
eligibility of the candidates, i.e., form an opinion as to their
reputation, standing in society and conduct outside court. The
confidential reports could have had no relevance to his forming any
opinion in this regard. In the present case, the two authorities had
distinct information pools or data banks; each could arrive at an
independent opinion on the basis of his or her data. When one then
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sent her opinion to the other, the second authority could concur or
differ on the basis of his opinion drawn from his own data bank.
There were many possibilities. The two could disagree on all names.
They could agree on some, but not on others. Or they could concur
on all names. The District Magistrate could have opined that all the
names proposed as suitable in the short-list received by him were
ineligible, or that some were both eligible and suitable, while others,
though suitable, were ineligible. Or he could have felt that all the
names said to be suitable were also eligible. This last is what seems
to have happened, and nothing more. Therefore, having received
the Principal District Judge's short-list of suitable candidates out of
the 34 candidates that were, incidentally, also with him, and
regardless the form in which this information was sent, the District
Magistrate could have responded by saying that one or more of the
short-listed candidates were, in his view, ineligible for want of
sufficiency on any of these grounds of reputation, social standing or
conduct outside court. Had he done so, the process would have to
be revisited afresh. But he did not. He sent the short-list on to the
government. That can only mean that he had no reservations or
qualms about the eligibility of these three candidates, or, in other
words, that he found all three candidates to also be eligible. Neelima
Vartak tells us that the issue of suitability was not one that the
District Magistrate could have assessed de hors the opinion of the
Principal District Judge. The District Magistrate required the view
of the Principal District Judge as the candidates were to discharge
their duties and perform their functions in court. It is difficult to see
how, because the Principal District Judge did not transmit to the
District Magistrate the information she gathered as to suitability,
there could be said to be a want of sharing of data or information
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and, therefore, no consultation. That the Principal District Judge at
the time (the Learned Judge Smt. Desai) did not share with the
District Magistrate the confidential reports she called for and
received is irrelevant as that material was directed to the question of
suitability, not eligibility. In our view, so long as the District
Magistrate retained his authority as to the matters within his remit,
in the facts of this case it is difficult to accept the proposition that
there was no meeting of minds, sharing of data or consultation as
demanded by law.
36. For this reason, too, we do not see how Mr. Anturkar's
reliance on the decision of a Learned Single Judge of this Court in
Arjun Panditrao Khotkar v State of Maharashtra & Ors.,21 can lend
him any assistance, for in that case too there was but a single pool of
information that, therefore, necessarily required sharing.
37. We must note that very recently the Supreme Court has again
held that the meaning of "consultation" is variable and fact-
dependent.22 Ordinarily, it means a free and fair discussion on a
particular subject, with full disclosure of all material that the parties
possess in relation to each other and then arriving at a decision.
However, in a case where one of the parties is said to have primacy
of opinion, either by express statutory mandate or necessary
implication, "consultation" may in fact mean concurrence. We
believe Mr. Borkar is justified in submitting that it is, in the facts of
this case, impossible to hold that there was no consultation properly
so called. We may also note that the result of this consultation was
2002 (2) Bom CR 368
State of Gujarat v R.A. Mehta, (2013) 3 SCC 1, para 32
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not, in fact, a 'decision' in any sense of the word, but simply a
recommendation. A decision, because of its binding nature, may be
vulnerable for want of consultation; this is not necessarily true of a
recommendation. This does not mean that it is permissible to have
no consultation at all, but only that the nature of the consultation
required may be very different depending on (1) the facts of the
case; and (2) the final outcome required from that consultation.
38. We also find Mr. Anturkar's reliance on the Supreme Court
decision in Prakash Chand Maheshwari & Anr v The Zilla Parishad,
Muzaffarnagar & Ors.23 to be entirely misplaced. That was a
situation where, under a local act, the appointments of District
Judges were to be made in consultation with the High Court. There
was a difference of opinion between the Government of Bihar and
the High Court about certain appointments and promotions. The
Bihar Government simply bypassed the entire consultative process
and directly issued a notification appointing the petitioner in that
case as a temporary District & Sessions Judge. The High Court was
never consulted. It was merely informed of the government
decision. The Supreme Court said that this was insufficient
compliance with the statutory mandate. We fail to see how this can
be placed on the same footing as the present case. In Prakash Chand
Maheshwari, the government attempted to bind the High Court with
its unilateral decision and entirely circumvented all consultation. In
other words, the High Court was sought to be presented with a fait
accompli. This is not the case here. The District Judge did not
attempt to bind the District Magistrate, and neither of them
attempted to bind the government.
1971 (2) SCC 489
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39. Mr. Anturkar also cites Indian Administrative Services (SCS)
Association, UP & Ors v Union of India & Ors.,24 to submit that where
consultation is mandatory, and either binds the proposer or affects
fundamental rights, and where it cannot reasonably be said to have
taken place, this infraction renders the action ultra vires, invalid or
void. But Indian Administrative Services itself says there is "no hard
and fast rule" as to the manner in which this consultation must take
place. Unless, therefore, we find that the consultation between the
District Judge and the District Magistrate was one that would bind
either the government or the proposer -- in this case, both the
District Judge and the District Magistrate -- it is not possible to
hold that a decision on that advice is rendered illegal for want of a
personal meeting or an overt exchange of material. There is, in our
view, a marked distinction between consultation by and with a
decision-making authority and a consultation that results in a
recommendation to a third party or agency, who or which may or
may not be bound by that recommendation. In the first case, a want
of consultation would, in the circumstances set out in Indian
Administrative Services, render the decision vulnerable; this would
not necessarily be so in the second case.
40. This brings us to the next question, as to whether the Learned
Judge Smt. Desai had the requisite statutory authority to
communicate with the District Magistrate on 11th October 2010
when the Learned Judge Mr. Patale took over the post of Principal
District & Sessions Judge, and then again on 14th October 2010.
From the facts on record, there can be no doubt at all that on both
those dates, the Learned Judge Smt. Desai did not in fact hold the
1993 Supp (1) SCC 730, para 26
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post of Principal District Judge. That, however, seems to us to beg
the question, which, more accurately, is what is it that she attempted
to do on those dates, and what is it that she had done previously,
when she did hold the post. Between 11th and 14th October 2010,
the Learned Judge Smt. Desai only re-transmitted information
already previously sent to the office of the District Magistrate on 7th
October 2010, a date on which she did hold charge as the Principal
District Judge. The information -- her opinion and short-list --
remained unchanged in her communications on 11th and 14th
October 2010. She did not alter the substance of that information in
any way. No names were added or removed. No additional material
was introduced. The only reason for this re-transmission was that
her original report and short-list did not conform to some format
that the District Magistrate said was necessary. This was, therefore,
a matter of form, not substance. The process, so far as she was
concerned, was complete on 7th October 2010. She had nothing to
add thereafter. The re-transmissions of 11th and 14th October 2010
are nothing but the same transmission of 7th October 2010, only in
another format, i.e., purely administrative tasks. Had she not done
what she did, conceivably the entire process might have been
derailed for the next several weeks, even months. We do not know if
the Learned Judge Mr. Patale was privy to the same personal
information on which to gauge the candidates' suitability. We do not
know if he had more of this information or less. We do not know if,
in her place, he might have reached a different conclusion. But to
ask him to take over and merely re-forward material to which he had
at no time applied his mind seems to us to be even more fraught with
peril and therefore more vulnerable. She could not, in all propriety,
ask the Learned Judge Mr. Patale, now her superior on 11th October
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2010, to function as a despatch clerk. Given the way the dates fall,
very likely she believed that she had no other option in the matter if
the process was to be seen to fruition on time. This is a case,
therefore, where form followed function, and it seems to us that the
facts of this case in this respect are so peculiar that they lend
themselves to no enunciation of any overarching legal principle. A
too slavish adherence to rules sometimes defeats the objective of
sound administration. We have rules and laws that confer authority
on those who hold a specified office, and only they can exercise that
authority and only in the manner stipulated. But these laws and
rules are not meant to manacle the merely shiftless and the
imprudent, but rather as a yoke on the mendacious, the
Machiavellian and the venal. To succeed on this submission, Mr.
Anturkar must show that the Learned Judge Smt. Desai acted as she
did out of some malice, in fact or in law, and that she could not
otherwise have given effect to these mala fides except by acting as
she did. Despite his quarrel with her recommendations on merits,
Mr. Anturkar is unable to establish any such case.
41. We are not considering Mr. Anturkar's case, as pleaded, on
the merits of the recommendations, i.e., the short-list. With his
usual fairness, Mr. Anturkar accepted that these have now lost
relevance and cannot tilt the balance in his client's favour. That she
claims to have prepared her short-list on "seniority-cum-merit" is,
of course, ex-facie erroneous; this was a direct selection process in
which seniority could have played no part.
V
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42. We turn now to the issue of Kamble's continuance or
extension in the post of District Government Pleader and Public
Prosecutor following the end of his first term on 7th July 2010.
Here, Mr. Anturkar relies on Rule 30(4) in Chapter VI of the Rules
to contend that, absent any adverse comments, Kamble was entitled
to reappointment in that post. He draws support from the Supreme
Court decision in State of UP v Ashok Kumar Nigam.25
43. As the Rules are not always readily to hand, we take the
liberty of appending to this decision the relevant extracts from those
Rules, viz., Chapter III, Rules 11 to 13, and Chapter VI, Rules 29 to
33. While the rules in Chapter III deal with qualifications for
appointment, Rule 30 deals with the period of appointment. A law
officer under these rules must be below the age of 60. 26 His
appointment is for three years.27 Rule 30(4) says that a law officer
shall be eligible for reappointment at the end of his three-year term.
For that purpose, his work is to be reviewed annually and a report
about his work and ability sent to the Government in Law &
Judiciary department at least three months before his tenure ends.
Who is to send these reports is also set out. Mr. Anturkar submits
that Kamble was, therefore, eligible for such a reappointment and,
following Ashok Kumar Nigam, was required to be continued, there
being no disqualification that attached to him. In other words, an
occupant of the post of law officer is, according to Mr. Anturkar,
entitled to reappointment subject only to any disqualification.
2013 (1) All MR 488, (2013) 3 SCC 372.
Rule 30(2)
Rule 30(3)
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44. We must disagree. Mr. Khambata is correct in saying that the
rules before the Supreme Court in Ashok Kumar Nigam are
materially different from the Maharashtra Rules in question in this
case. The case before the Supreme Court related to clauses of the
Legal Remembrancer's Manual. Para 7.08 of that manual dealt with
a "renewal of term" and specifically contemplated an incumbent's
continuance in office by a renewal of his appointment. This, as Mr.
Khambata submits, gave the incumbent a pre-emptive right to be
considered for a renewal of his term before any process of fresh
appointment was undertaken. The Maharashtra Rules, on the other
hand, say that a law officer is "eligible for reappointment". This only
means that the incumbent is entitled to step into the pool of those
under consideration; or, in other words, the fact that he once held
the post is not per se a disqualification from being considered for a
reappointment for another term. We believe Mr. Khambata is
correct and Mr. Anturkar is not; an extension or renewal is not the
same as a reappointment, and what Rule 30(4) contemplates is a
reappointment.
45. Learned Counsel for the Respondents are, in our view,
justified in relying on the Supreme Court decision in State of UP &
Ors. v Rakesh Kumar Keshari & Anr.28 to contend that the
appointment to the post of District Government Pleader & Public
Prosecutor is not akin to the grant of a license capable of 'renewal'.
This is, after all, a professional engagement as Johri Mal says, and it
confers no status on the incumbent. He has no legally enforceable or
vested right per se to a continuance in that post; the sovereign
(2011) 5 SCC 341
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decision of the State Government in this matter can only be
overturned where there is manifest arbitrariness.
46. Mr. Anturkar is, we believe, also incorrect in saying that Rule
30(4) of the Maharashtra Rules is mandatory for it says that a Law
Officer "shall be eligible for reappointment" whereas Rule 70.8 of
the Legal Remembrancer's Manual in Ashok Kumar Nigam said that
the State Government "may" renew an incumbent's appointment.
As we have noted, eligibility for reappointment confers no vested
right in an incumbent. The word "shall" in the Maharashtra Rules
speaks to the incumbent's eligibility, not the government's power. It
does not fetter the government, which may or may not reappoint an
incumbent in exercise of its administrative discretion. Whether or
not to reappoint an incumbent is a decision that the government will
take based on a multitude of factors, including, inter alia, reports
about the incumbent's performance. Correctly read, all that the
Maharashtra Rule says is that the government may reappoint a law
officer who shall, subject only to the other disqualifications and
requirements, be eligible for consideration for reappointment.
Eligibility is not entitlement. It is merely the lack of disqualification.
At the highest, the only 'right' it conveys is the right to be
considered, or, conversely, a right not to be excluded from
consideration. It is not a right to appointment or reappointment. To
contend to the contrary is incorrect. For every candidate in every
direct selection recruitment or appointment process is,
axiomatically, eligible. The fact that they are all eligible does not
mean that they are all entitled to appointment. Only the most
suitable among the eligible candidates is appointed; and in that
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space between the eligibility of all and the suitability of one lies the
government's discretion.
47. What is, however, disturbing is the evident play of external
forces while Kamble's proposal for reappointment was under
consideration before 19th July 2010. Clearly, persons of political
influence sought to intermeddle in the process. Before us, no one
has attempted to defend this. This is all to the good. These are not
matters where such externalities should be allowed to determine the
decision, or the decision-making process. This would, in our view,
drive a stake through the heart of this appointment: those who are
selected for this post are expected to be persons of integrity,
impartiality, fearless independence, capable of giving honest and
sage advice when needed, charged with the duty of representing the
interest of the general public before a court of law. Any
appointment, therefore, that can be shown to have been in the
slightest way influenced by any such external forces, and unrelated
to demonstrable merit, must be struck down. It is but fortunate for
the government -- and correspondingly unfortunate for Mr.
Anturkar's client -- that in this case that eventuality, of a decision
being determined by extra-legal forces, has been averted, albeit only
by a hair's breadth. It would be unwise to expect such serendipity
every three years.
VI
48. There remains the question of waiver, raised against the
Petitioner. Both petitions were filed on the same day, 18th
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December 2011. By that time, Kamble's demand for continuance
could not survive. He had also by then applied for selection to the
post in question when the government asked that the process be
started afresh after 19th July 2010. He was one of the 34 candidates
in the zone of consideration before both the District Judge and the
District Magistrate. He was also one of the three short-listed by the
former, being found suitable; and the latter, as we have noted,
concurred in this short-listing, finding him eligible (or, at any rate,
not ineligible).
49. Does Kamble's participation in the next round of selection
after 19th July 2010 amount to waiver on his part? Mr. Borkar and
Mr. Jamdar say it does. They rely on a very recent decision of the
Supreme Court in Ramesh Chandra Shah v Anil Joshi,29 to contend
that Kamble's grievance was made only after he found he was not
selected for the post in the fresh round that began on 19th July 2010.
In other words, and echoing the decision in Ramesh Chandra Shah,
Kamble "took a chance to be selected in the list of successful
candidates". This therefore disentitles him from seeking relief under
Article 226 of the Constitution of India. By stepping into the waters
of the fresh selection process, Kamble must be "deemed to have
waived" his right to challenge that selection procedure.
50. Mr. Anturkar disagrees. He says his client had not the luxury
of time. Had Kamble not reapplied for selection, he would have
been out of the zone of consideration altogether, the result of which
was, of course, unknown at the time when he applied. He would
Decision dated 3rd April 20-13 in Civil Appeal Nos.2802-2804 of 2013,
para 17
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then have found himself caught between the Scylla of not being
reappointed and the Charybdis of not being considered for
appointment afresh. Waiver, Mr. Anturkar submits, citing Motilal
Padampat Sugar Mills v State of UP,30 is a question of fact that must
be properly pleaded and proved. It cannot be raised sans pleading
and factual foundation. It is only when a plea is properly taken and
proved that the other party can respond to it. A waiver is an
abandonment of a right. It may be express or implied, but it must be
deliberate and with knowledge. That knowledge, Mr. Anturkar
submits, in this case can only mean knowledge of Kamble's
rejection for reappointment. That was never made known. There is
also no plea of waiver taken against him. His cause cannot, he
submits, be defeated on this ground. Should the selection procedure
be found vulnerable, his petition cannot fail on a ground of waiver,
neither pleaded nor proved.
51. The issue is, frankly, academic, since we are not invalidating
the selection procedure. Whether or not there is a waiver must
depend on the facts of each case. We do not see Ramesh Chandra
Shah as setting out a universal standard. At the time when he
applied in the fresh selection round, Kamble had not been informed
of the rejection of the proposal for his reappointment. Indeed, the
result of the entire exercise was unknown till 3rd August 2011, when
the government finally issued the notification appointing Mangsule
to the post. The waiver that Mr. Borkar and Mr. Jamdar allege is one
that is supposed to have taken place at the time when Kamble
applied for fresh selection, not at the time of filing of his petitions.
We do not see how there can be any such waiver.
(1979) 2 SCC 409, paras 5 and 6
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VII
52. One last issue must be addressed. In the course of his
submissions, Mr. Anturkar said that the High Power Committee
appointed by the State Government, and comprising the Learned
Advocate-General and the Law Secretary, is one entirely outside the
purview of Section 24 of the CrPC and the Rules, and it is therefore
inconsequential. We express no opinion on this matter. We do
believe, however, that this HPC is entirely salutary and serves as a
vital safeguard. It ensures a level of transparency and accountability
in matters of public governance. Given the nature of the post in
question, and the demands of the office, we believe that the
constitution of this HPC is wholesome. We have already noted that
in this very matter there was an attempt by extra-legal forces to
determine the course of the selection process. A committee like the
HPC can only serve as bulwark against such influences.
VIII
53. In the result, both petitions fail. Both are dismissed, and Rule
is discharged in each. There will be no order as to costs.
(G.S. Patel, J.) (A.S. Oka, J.)
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Annexure
THE MAHARASHTRA LAW OFFICERS
(APPOINTMENT, CONDITIONS OF SERVICE
AND REMUNERATION) RULES 1984
AND
THE RULES FOR THE CONDUCT OF THE
LEGAL AFFAIRS OF GOVERNMENT, 1984
CHAPTER III
QUALIFICATIONS AND APPOINTMENT OF THE GOVERNMENT
PLEADERS AND PUBLIC PROSECUTORS
11.
Eligibility for appointment. -- (1) A person to be appointed as a
Government Pleader or Public Prosecutor shall be one --
(a) who is a citizen of India;
(b) who has obtained a decree in Law from any statutory
University and has been enrolled as an advocate;
(c) who is not more than fifty-five years of age on the date of
appointment;
(d) who has been in practice as an advocate.--
(i) in the case of Government Pleader or Additional
Government Pleader in the high Court, for not less than ten
years;
(ii) in the case of any other Government Pleader or
Additional or Assistant Government Pleader, Public Prosecutor
or Additional Public Prosecutor, for not less than seven years;
(iii) in the case of Subordinate Government Pleader at
taluka headquarters, for not less than three years; and
(iv) in the case of an Honorary Assistant to the
Government Pleader in the High Court or District Government
Pleader in the mofussil court, for not less than three years.
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(2) Not withstanding anything contained in the foregoing provisions,
if in the opinion of Government in the Law and Judiciary Department a
person is, --
(i) a distinguished jurist, he shall be eligible for being
appointed as an Assistant Government Pleader on the Original
and Appellate Side of the High Court at Bombay, irrespective of
the fact whether such a person is or is not practising as an
advocate, or if he is or was practising as an advocate, whether
he has or has not completed the period of practice prescribed in
sub-clause (ii) of clause (d) of sub-rule (1) on the date of such
appointment; or
(ii) a retired judicial officer or officer of the rank not below that
of a Joint Secretary in the Law and Judiciary Department and
who, prior to his joining service as such officer was a practising
advocate, or had practised as an advocate for not less than
seven years, he shall be eligible for being appointed as an
Assistant Government Pleader on the Original and Appellate
Side of the High Court at Bombay.
Explanation. -- In computing the period of practice prescribed in
clause (ii) of this sub-rule there shall be included any period during
which the person has held judicial office or the office not below the rank
of Joint Secretary in the Law and Judiciary Department, after he
became an advocate.
12. Additional qualifications to be considered for appointment. --
Appointment of any person who is eligible to be appointed under rule 11
shall, however, be made having regard to his integrity, reliability,
reputation, character and antecedents in addition to his qualifications
and experience.
13. Appointment. -- (1) Every Government Pleader referred to in
clause (I) of rule 2, or Public Prosecutor or Additional Public Prosecutor
for High Court or for each district shall be appointed by Government in
the Law and Judiciary Department (hereinafter in this rule referred to as
"the Government:).
(2) The government shall invite applications from advocates in such
manner as it thinks fit, and select from amongst the applicants a
suitable candidate for appointment of --
(i) a Government Pleader or Additional or Assistant
Government Pleader of Honorary Assistant to the Government
Pleader in the High Court or in the Bombay City Civil Court or in
the Court of Small Causes at Bombay; and
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(ii) a Special Government Pleader and Additional Special
Government Pleader for the Maharashtra Revenue Tribunal at
Bombay;
CHAPTER VI
GENERAL
29. Administrative control by the Remembrancer of Legal Affairs. --
All the Law Officers shall be under the administrative control of the
Remembrancer of Legal Affairs in his capacity as the ex-officio
Secretary to Government in the Law and Judiciary Department.
30. Period of Appointment. --(1) All the Law Officers except the
Advocate - General shall hold office during the pleasure of Government
in the Law and Judiciary Department.
No Law Officer shall be continued in office after he has attained
the age of 60 years :
Provided that, Government in the Law and Judiciary Department
may continue any Law Officer after he has attained the age of 60 years,
if it is satisfied that the said Law Officer is physically fit and there are
good reasons to warrant his retention in office.
(3) Subject to the other provisions contained in this rule and unless
the order of appointment directs otherwise, a person appointed as a
Law Officer shall hold office at a time for a term not exceeding three
years.
(4) A Law Officer shall be eligible for reappointment after the expiry
of his term and for that purpose the work of a Law Officer shall be
reviewed every year and a report about his work and ability shall be
sent to Government in the Law and Judiciary Department at least three
months before the expiry of his term --
(a) in the case of the Law Officers in the Nagpur and Amravati
Divisions by the Joint Secretary or the Deputy Secretary to
Government, Law and Judiciary Department at Nagpur;
(b) in the case of the Law Officers in the area of jurisdiction of
the High Court at Aurangabad, by the Joint Secretary or the
Deputy Secretary to Government, Law and Judiciary Department
at Aurangabad; and
(c) in the case of other Law Officers, by the Solicitors to
Government (Mofussil Litigation) and by the concerned Joint
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Secretary or Deputy Secretary in the Law and Judiciary
Department (City Civil and Criminal Litigation) at Bombay, as the
case may be.
(5) A Law Officer shall be liable to be removed from his office at any
time, if he is guilty of any act or conduct which, in the opinion of
Government in the Law and Judiciary Department, is incompatible with
his duties as such Law Officer. The decision of Government in the Law
and Judiciary Department in such cases shall be final.
(6) (a) Notwithstanding anything contained in sub-rules (2) and
(3), but save as otherwise provided in sub-rule (5), the appointment of
any Law Officer, which is at the pleasure of the Government, may at any
time, be terminated by government in the Law and Judiciary
Department by giving him one month's notice or, where any retainer is
payable to said Law Officer, be terminated forthwith by paying him one
month's retainer in lieu of such notice.
(b)
Any Law Officer may resign his appointment by giving one
month's notice to Government in the Law and Judiciary Department or
may resign forthwith by surrendering one month's retainer where said
retainer is payable to him.
(7) A Law Officer whose term of office has expired, shall not after the
expiry of such term be entitled to appear on behalf of the State of the
Officers in any case, civil or criminal, which may then be pending in the
Court.
31. Expiry of the term of appointment. -- Where in the case of a
principal Law Officer, no appointment has been made by Government in
the Law and Judiciary Department before the expiry of the periods
specified in sub-rule (3) and clause (b) of sub-rule (6) of rule 30, the
outgoing principal Law Officer shall hand over the charge of his office to
the seniormost of his subordinates, if any, or any other Law Officer as
Government in the Law and Judiciary Department may direct. The latter
shall be entitled to the retainer for the period he holds the charge of the
said office.
32. Transfer of records. -- (1) On the expiry of the term of office,
whether by efflux of time or otherwise, of a Law Officer, he shall prepare
a list of cases, references and official correspondence pending with him
and hand over all the records to the Law Officer succeeding him or to
such other Law Officer as Government in the Law and Judiciary
Department direct to obtain a receipt for the same and report to the
Government.
(2) Unless and until the provisions of sub-rule (1) are
complied with, amount due to a Law Officer shall be paid to him, and if
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any loss caused to the Government due to the default of a Law Officer,
such Law Officer shall be personally held responsible for such loss and
it shall be recovered from the fees, if any, or any other amount due and
payable to him.
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