Maharashtra State Public ... vs State Of Maharashtra And Ors
2017 Latest Caselaw 4973 Bom

                                                          WP No. 5005/1999
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                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD

                          WRIT PETITION NO. 5005 OF 1999
                                        WITH
                         CIVIL APPLICATION NO 6414 OF 1999
                                        WITH
                         CIVIL APPLICATION NO 4348 OF 2015

1.     MAHARASHTRA STATE PUBLIC PROSECUTORS
       ASSOCIATION - THROUGH ITS PRESIDENT
       Shri Shivram Vyankatesh Choudhary
       Age: 47 years, Occu: Govt. Serving
       Presently serving as Astt. Public Prosecutor
       at Parbhani. R/o Parbhani.

2.     RATAN S/O EKNATHRAO SHIRSATH
       Age: 52 years, Occu: Govt. Service
       Presently serving as Addl. Public Prosecutor
       Pune [Posted at Pune, discharging duties
       of Selection Grade Police Prosecutor]

3.     RAMESHWAR S/O LAXMINARAYAN KAHALE
       Age: 49 years, Occu: Govt. Service
       Presently serving as Addl. Public Prosecutor
       at Akola, R/o Akola.

4.     MADHAV S/O YESHWANTRAO MUNDHE
       Age: 50 years, Occu: Govt. Service
       Presently serving as Addl. Public Prosecutor
       at Jalna.

5.     NANDKUMAR S/O BHALCHANDRA KULKARNI
       Age: 52 years, Occu: Govt. Service
       Presently serving as Addl. Public Prosecutor
       at Aurangabad, R/o Aurangabad.

6.     Sk. Jafar S/o Sk. Hussain
       Age: 46 years, Occu: Govt. Service
       Presently serving as Addl. Public
       Prosecutor at Parbhani.

7.     Sanjay S/o Purushottamrao Deshmukh,
       Age: 50 years, Occu: Assistant Public
       Prosecutor, R/o Aurangabad, Tq. and
       Dist. Aurangabad.




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8.     Ramkishan S/o Ranganathrao Tandale,
       Age: 54 years,
       Occu: Assistant Public Prosecutor,
       R/o Aurangabad Tq. and Dist.
       Aurangabad.

9.     Shyam S/o Bhalchandra Deshpande,
       Age: 47 years,
       Occu: Assistant Public Prosecutor,
       R/o Aurangabad, Tq. and
       Dist. Aurangabad.                         ....Petitioners.

               Versus

1.     THE STATE OF MAHARASHTRA
       Through its Chief Secretary
       Mantralaya, Mumbai - 32.

2.     THE MINISTRY OF HOME AFFAIRS
       Govt. of Maharashtra
       Through its Home Secretary
       Mantralaya, Mumbai -32.

3.     THE MINISTRY OF LAW & JUDICIARY
       Govt. of Maharashtra
       Through its Secretary
       Mantralaya, Mumbai -32.

4.     THE DIRECTOR OF PROSECUTIONS
       Ministry of Home Affairs
       Govt. of Maharashtra
       'Kutir No. 6', Bhind Yeshodhan Bldg.,
       Dinshaw Wacha Road,
       Mumbai - 20                          ....Respondents.



Mr. P.R. Katneshwarkar, Advocate for petitioners.
Mr. Ashutosh Kumbhakoni, Advocate General with Mr. Akshay
Shinde, Advocate and Mr. A.B. Girase, Government Pleader for
respondents.


                                CORAM   :   T.V. NALAWADE AND
                                            SUNIL K. KOTWAL, JJ.

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RESERVED ON : 12/07/2017 DECIDED ON : 25/07/2017.

JUDGMENT : [PER T.V. NALAWADE, J.]

. The petition is filed by the Association of Prosecuting

Officers of Maharashtra State working in the Courts of Magistrate

and Sessions Court for relief of declaration that the amendment to

section 24 viz. 24 (6-A) introduced to the Code of Criminal

Procedure, 1973 (hereinafter referred to as 'Cr.P.C.' for short) by the

State Government is repugnant to the Act of Parliament and it is

void in view of Article 254 of Constitution of India. Relief of direction

against the State Government that it should act in accordance with

the provisions of section 24 (1), 24 (6) of Cr.P.C. and make

appointments of Public Prosecutors, Additional Public Prosecutors

and Assistant Directors for working in Sessions Court and High Court

is claimed. Relief of direction that appointments be made from the

cadre of Assistant Public Prosecutors to these posts is claimed. Relief

of direction is claimed to allow the promoted Additional Public

Prosecutors to work in Sessions Court (in district) and High Court.

Both the sides are heard. The notes of written arguments are also

filed by the respondents.

2) The reliefs of aforesaid nature are claimed as the State

Government is appointing Public Prosecutors, Additional Public

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Prosecutors to work in High Court and Sessions Court on contract

basis from the members of Bar. Due to such appointments, the

Assistant Public Prosecutors selected as per the Rules framed by the

State Government under Article 309 of Constitution of India are not

getting appointments to the posts of Public Prosecutors and also to

most extent, to the posts of Additional Public Prosecutors. It appears

that though as per the Rules framed, some Assistant Public

Prosecutors are promoted to the posts of Additional Public

Prosecutors and they are posted to work in Sessions Court in

districts, the Public Prosecutors are not assigning work to them. It is

contention that the State Government is deliberately and

intentionally not acting in accordance with the provisions of section

24 (1), 24(6) of Cr.P.C. as enacted by Parliament.

3) In view of points involved in the matter the provisions of

Constitution of India with regard to the legislative powers of

Parliament and the State Legislature need to be considered to some

extent. Similarly, the Rules framed by the State Legislature under

Article 309 of Constitution of India need to be considered for

considering the aforesaid claims.

4) The provisions of part XI and particularly Articles 245,

246 and 254 of Constitution of India and entry numbers 1 and 2 of

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list III of Concurrent List given in the Seventh Schedule of

Constitution of India show that the Parliament and the State

Legislature both have power to legislate on criminal law, the subject

involved in the present matter. There is no dispute about this point

and so, this Court is not discussing this point in detail.

5) The contention made for the petitioners in the present

proceeding that the provisions made by the Parliament will prevail

over the provision made by the State, the amendment made to

section 24 of Cr.P.C., needs to be addressed. It appears that the

provision of section 6-A in section 24 of Cr.P.C. was added in the

year 2014 and at the same time, the proviso which was given to

sub-section (6) of section 24 was deleted. In view of the provisions

of Article 254 of Constitution of India and as amendment was made

subsequent to the enactment of Cr.P.C., it needs to be held that so

far as the powers of the Parliament and the State Legislature are

concerned, in view of the Article 254, atleast at present, the

provision made by the State Government can be enforced if there is

no other hurdle. This is due to wording of Article 254 (2) of

Constitution of India and it runs as under :-

"254.Inconsistency between laws made by Parliament and laws made by the Legislatures of States.-

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(1) ......

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State."

6) In view of the aforesaid provision of constitution of India,

it can be said that on the date of petition, in the year 1999, in view

of the law made by Parliament, section 24 of Cr.P.C. the law was in

support of the contentions made by the petitioners. This provision

cannot be, however, read in isolation in view of the Rules made by

the State Government under Article 309 of Constitution of India.

Whether the amendment viz. sub-section (6-A) of section 24 is in

consonance with spirit of section 24 and whether this provision can

be used against the petitioners, is the question which needs to be

decided in the present matter. For that, the Rules framed under

Article 309 of Constitution of India also need to be considered.

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Similarly the developments which took place due to some steps

taken by the State Legislature to comply the directions given by

Apex Court need to be considered.

7) The provision of section 24, as amended in the year

1978, was as under :-

"24. Public Prosecutors. - (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 conduction 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 consultation with the Sessions Judge, prepare a panel

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of names of persons, who are, in his opinion, fit to be appointed as Public Prosecutors 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) 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 form 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).

Explanation. - For the purposes of this sub-section,-

(a) "regular Cadre of Prosecuting Officers" means a Cadre of Prosecuting Officers which includes therein the post of a Public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutors, by whatever name called, to that post;

(b) "Prosecuting Officer" means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, an Additional Public

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Prosecutor or an Assistant Public Prosecutor under this Code.

(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional 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.

(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 as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor as an Additional 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."

The provision of section 24 (1) of Cr.P.C. is in respect of appointment

of Public Prosecutors and Additional Public Prosecutors which need to

be made for conducting prosecutions, appeals and other proceedings

on behalf of the Government in the High Court. The remaining part

of the section viz. section 24 (2) to 24 (9) relates to the

appointment of Public Prosecutors and Additional Public Prosecutors

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which need to be made in any district. Plain reading of these two

separate portions of section 24 of Cr.P.C. show that different

schemes are provided for making such appointments in respect of

work in High Court and in respect of work in District Court. The

petitioners are not appointed as provided in section 24 (1) of Cr.P.C.

It is their case that they are appointed as provided in section 25 of

Cr.P.C. and their service conditions are governed by the Rules framed

by the State Legislature and by promotion they are entitled to get

posts of Additional Public Prosecutor and Public Prosecutor. Due to

this single circumstance and the rules framed by State Government

the contention of the present petitioners that they need to be

promoted and appointed on the posts of Public Prosecutors and

Additional Public Prosecutors for working in High Court as provided

in section 24 (1) of Cr.P.C. cannot be accepted. Relevant rules are

quoted at proper place.

8) The provisions of Cr.P.C. show that the State Legislature

made amendment to section 24 of Cr.P.C. first time in the year 1981

and that amendment provides as under :-

"Maharashtra.- In its application to the State of Maharashtra, in section 24,-

(a) in sub-section (1), delete the words "after consultation with the High Court,";

(b) in sub-section (4), for the words "in consultation

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with the Sessions Judge", substitute "with the approval of the State Government". - Maharashtra Act 34 of 1981, section 2 (w.e.f. 20-5-1981)."

9) By making aforesaid amendment in the year 1981, it can

be said that the State Government took it to itself the procedure for

preparing panel of the names of persons mentioned in section 25 (5)

of Cr.P.C. and excluded the role of Sessions Judge. However, the

provision of section 24 (6) of Cr.P.C. was not touched till the year

2014 and so, even after making amendment in the year 1981, as

per the provision of section 24 (6) of Cr.P.C., the priority could have

been given to the Prosecuting Officers to get appointments to the

posts of Public Prosecutors and Additional Public Prosecutors. But

regular cadre of prosecuting officers mentioned in section 24 (6) of

Cr.P.C. was not in existence at that time. In view of this position, the

State Government continued to make appointments by following

procedure like preparing panel of members of Bar as provided in

provision of section 24 (4) and 24 (5) of Cr.P.C. as amended in the

year 1981.

10) Admittedly, due to some decisions given by the Apex

Court like in the case reported as 1995 Suppl (3) SCC 37 (S.B.

Shahane Vs. State of Maharashtra, the Government of

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Maharashtra created a separate cadre of Assistant Public Prosecutors

under section 25 of Cr.P.C. for working in the Courts of Magistrate.

The learned Advocate General submitted that this cadre created by

the State Government does not fall in the definition of 'regular cadre'

given in explanation (1) of sub-section (6) of section 24 of Cr.P.C. He

placed reliance on some observations made by the Apex Court in the

case reported as (1990) 4 SCC 191 (K.J.John, Asstt. Public

Prosecutor Grade I, Palai Vs. Vs. State of Kerala). This Court

has carefully gone through the interpretation made by the Apex

Court in this reported case. After considering the provision of section

24 of Cr.P.C. and the Kerala Government Law Officers (Appointment

and Conditions of Service) and Conduct of Cases Rules 1978, the

Apex Court made it clear that there was no 'regular cadre' available

in Kerala as provided in explanation (1) of sub-section (6) of section

24 of Cr.P.C. It is laid down that the expression 'regular cadre' of

Prosecuting Officers comprises a service with Assistant Public

Prosecutors at the lowest level and Public Prosecutors at the top.

This position of law is still there and so, this interpretation needs to

be used in the present matter also.

11) In section 2 (u) of Cr.P.C. the definition of 'Public

Prosecutor' is given, which is as under :-

"(u) "Public Prosecutor" means any person appointed

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under section 24, and includes any person acting under the directions of a Public Prosecutor;"

Due to aforesaid definition and the provisions of section 24 and 25 of

Cr.P.C., the Prosecuting Officers called by name as Public Prosecutors

and Additional Public Prosecutors and appointed as such can only

work in Sessions Court and High Court. The provision of section 24

(7) shows that it is possible to appoint members of Bar, on these

posts who have put in practice of seven years.

12) The learned Advocate General stressed much on the

powers given by Article 309 of Constitution of India to the State

Government and the Rules framed by the State Government viz.

Maharashtra Law Officers (Appointment, Conditions of Service and

Remuneration) Rules 1984 (hereinafter referred to as 'the Rules of

1984' for short). In Rule 13 (3) of the Rules of 1984, the procedure

for appointment of Public Prosecutor and Additional Public Prosecutor

is given and it is similar to the procedure given in section 24 (4) and

(5) of Cr.P.C. as amended by the State Government in the year 1981

and it reads as under :-

"(3) The District Magistrate in Brihan Mumbai, or as the case may be, in every district shall invite applications from advocates in such manner as he thinks fit, for inclusion of the names of suitable

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candidates from amongst them, with the approval of the Government, in the panel for appointment of Public Prosecutor or Additional Public Prosecutor for Brihan Mumbai, or as the case may be, for a district; and the Committee consisting of the person nominated by the Advocate General and the Collector of the concerned District, shall conduct the interviews of the candidates and recommend to the Government, the names of the candidates which in its opinion are most suitable and meritorious for such appointment; and the Government shall select the candidates recommended for any such appointment."

The provision of the Rule 13 (2) of the Rules of 1984 refers to make

the appointments to be made for working in High Court. In Chapter

IV of the Rules of 1984, the duties of Public Prosecutors and

Additional Public Prosecutors working in High Court and Sessions

Court are given. These Rules show that the State Government

wanted to exercise it's power to make appointments of Public

Prosecutors and Additional Public Prosecutors by selecting them from

members of Bar and at that time, there was no intention as such to

create regular cadre as mentioned in section 24 (6) of Cr.P.C. By

using this Rule, the State Government kept on appointing

Prosecuting Officers.

13) It is already mentioned that it is not disputed that in the

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year 1995, first time separate cadre of Assistant Public Prosecutor

was created by the State Government. For that, the provision of

section 25 of Cr.P.C. needs to be considered first. The section reads

as under :-

"25. Assistant Public Prosecutors.-(1) The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates.

(1-A) The Central Government may appoint one or more Assistant Public Prosecutors for the purpose of conducting any case or class of cases in the Courts of Magistrates.

(2) Save as otherwise provided in sub- section(3), no police officer shall be eligible to be appointed as an Assistant Public Prosecutor.

(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case:

Provided that a police officer shall not be so appointed-

(a) if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted; or

(b) if he is below the rank of Inspector."

This provision shows that it was made clear that the Prosecuting

Officers were not to work under investigating agency, the police

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officers.

14) In exercise of powers given under Article 309 of

Constitution of India, the State Government made Rules to regulate

the recruitment to the posts of Assistant Public Prosecutors

mentioned in section 25 of Cr.P.C. and these Rules are called as the

Assistant Public Prosecutor, Group-B in Directorate of Public

Prosecutions, Maharashtra State (Recruitment) Rules, 1995

(hereinafter referred to as 'the Rules of 1995). The aforesaid Rules

show that advocates having more than five years practice in High

Court and in courts subordinate thereto can be appointed as

Assistant Public Prosecutors if they fulfill other conditions given in

these Rules. These Rules also show that the appointments are to be

made through Public Service Commission of the State. The

appointments are to be made on probation of two years and the

persons appointed on these posts are transferable anywhere in the

State of Maharashtra.

15) In exercise of powers conferred by Article 309 of

Constitution of India, the State Government made Rules which are

called as the Deputy Director, Assistant Director and Public

Prosecutor and Additional Public Prosecutor (Group-A) in the

Directorate of the Public Prosecutions, Maharashtra State

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(Recruitment) Rules, 1997 (hereinafter referred to as 'the Rules of

1997). These Rules supercede all previous Rules and on this subject

there were Rules of 1984. Rules 5 and 6 of these Rules of 1997 run

as under :-

"5. Appointment to the post of the Additional Public Prosecutor (Group-A) in the Directorate shall be made either :-

(a) by promotion on the basis of strict selection from amongst the persons holding the post of Assistant Public Prosecutor form the cadre of Assistant Public Prosecutor who has served for a period of not less that 5 years on regular basis as Prosecutor;

(b) by nomination from amongst the person who,-

(i) are not more than thirty six years of age,

(ii) possess a degree in law,

(iii) possess experience of working as an Advocate in the High Court or in a Court subordinate thereto, for a period of eight years.

6. Notwithstanding anything contained in sub-

clause (iii) of clause (b) of rule 5, if at any stage of selection, the Commission is of the opinion that sufficient number of candidates possessing the requisite experience are not available to fill up the vacancies reserved for candidates belonging to Scheduled Caste, Scheduled Castes converts to Buddhism, Scheduled Tribes, Denotified Tribes or Nomadic Tribes, then the Commission may in the matter of such selection, relax the condition in the respect of period of experience set out therein and select suitable candidate belonging to such Castes or

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Tribes."

16) By making the Rules of 1997, the State Government kept

open two sources for the appointments to the posts of Public

Prosecutors and Additional Public Prosecutors. Rules 7 and 8 of the

Rules of 1997 are also relevant and they run as under :-

"7. A person appointed to the post of Additional Public Prosecutor by nomination shall be on probation for a period of two years.

8. Appointed to the post of Additional Public Prosecutor by way of nomination and promotion shall be made in the ratio of 50 : 50."

17) Rules 5 to 8 of the Rules of 1997 and Rules of 1995 if

read in aforesaid sequence show that they created cadres of

Prosecuting Officers like Assistant Public Prosecutors and Additional

Public Prosecutors. The appointments to the posts of Additional

Public Prosecutor can be made by the nomination as provided in Rule

5 (b) of these Rules. As many as 162 posts of the cadre of Additional

Public Prosecutors as provided in aforesaid Rules are created in this

State and 26 posts of Public Prosecutors are created, but the State

Government has been appointing all the Public Prosecutors and most

of the Additional Public Prosecutors on contract basis for fixed

number of years.

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18) Rule 4 of the Rules of 1997 runs as under :-

"4. Appointment to the post of Assistant Director and Public Prosecutor (Group-A) in the Directorate shall be made by promotion on the basis of Strict Selection from amongst the persons holding the post of the Additional Public Prosecutor from the cadre of Additional Public Prosecutor or Officer on the equivalent post who has served for a period of not less than 3 years on regular basis in the Directorate."

This Rule shows that a person who is initially appointed as Assistant

Public Prosecutor as provided in section 25 of Cr.P.C. and as per

Rules of 1995, can be promoted up to the post of Public Prosecutor,

though his designation may be as Assistant Director and Public

Prosecutor (Group A). These Rules show that regular cadre as

mentioned in section 24 (6) of Cr.P.C. is created by the State

Government. Thus, after the Rules of 1984 new Rules were made

under Article 309 of Constitution of India and regular cadre of the

Prosecuting Officers is created. First time in the year 2014 by

making aforesaid amendment to section 24 of Cr.P.C., the State

Government created conflicting provision.

19) By Maharashtra Act No. XXXIII of 2014, section 24 of

Cr.P.C. came to be amended and the amendment is as follows :-

""(6-A) Notwithstanding anything contained in

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sub-section (6), the State Government may, subject to the provisions of sub-sections (4) and (5), appoint a person who has been in practice as an advocate for not less than seven years, as the Public Prosecutor or Additional Public Prosecutor for the district."

20) If the provisions made by the Parliament only is read, it

can be said that in view of the Rules of 1995 and 1997, it was

mandatory for the State Government to consider first the persons

constituting 'regular cadre' of Prosecuting Officers for making

appointments to the posts of Public Prosecutors and Additional Public

Prosecutors. Due to introduction of aforesaid sub-section (6-A), the

State Government has attempted to create a discretion which can

enable the State Government to ignore the persons from regular

cadre while making appointments to the posts of Public Prosecutors

and Additional Public Prosecutors.

21) The aforesaid provisions show that the provision of sub-

section (6-A) already mentioned is in conflict with the Rules of 1997

made by the State Government under Article 309 of Constitution of

India. For deciding the present matter, it needs to be kept in mind

that only the proviso of sub-section (6) of section 24 of Cr.P.C. is

deleted by the State amendment of 2014. The Rules of 1997 are not

touched by the State Government and further the remaining portion

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of sub-section (6) of section 24 is still there. The definition of 'Public

Prosecutor' in section 2 (u) of Cr.P.C., the provisions of section 24 of

Cr.P.C. show that after becoming Additional Public Prosecutor, the

person holding such posts needs to be allowed to work in Sessions

Court. Though in some cases like mentioned in section 437 (1) of

Cr.P.C., the Public Prosecutor is required to be heard by Magistrate,

ordinarily they are expected to work in Sessions Court (District

Court) and High Court.

22) The Assistant Public Prosecutors appointed as per the

Rules of 1995 have the right to be considered for getting the

promotional posts mentioned in the Rules of 1997. Thus, they need

to be considered for their appointments even to the post mentioned

in Rule 4 of the Rules of 1997 which is described as Assistant

Director and Public Prosecutor (Group-A). For getting that post as

per the Rules of 1997, the Additional Public Prosecutors, who are

appointed by nomination as provided in Rule 5 of Rules of 1995 can

also be considered. However, in this State, there are no Additional

Public Prosecutors appointed as per Rule 5 of the Rules of 1997.

When such Rules are there, it is not possible for the State to give

go-bye to these Rules and deprive the persons appointed under the

Rules of 1995 to get posts of Public Prosecutors. These Rules have

legislative character and in the case reported as (2006) 4 SCC 1,

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[Secretary, State of Karnataka and Ors. Vs. Umadevi (3) and

Ors.], the Constitution Bench has observed that if such Rules under

Article 309 of Constitution of India are made, the Government can

make appointments ordinarily in accordance with such Rules. Thus,

the persons appointed on contract basis cannot compete with

regular cadre and cannot affect the rights of regular cadre.

23) There are not only aforesaid Rules, but there is record to

show that as per the Rules of 1995, the posts of Assistant Public

Prosecutors were created and the persons came to be appointed on

those posts as per the procedure given in the Rules of 1995. Some

are promoted by following the Rules of 1997, but most of them are

in waiting due to the circumstance that the State Government has

continued to appoint Additional Public Prosecutors and Public

Prosecutors as provided in section 24 (4) and (5) of Cr.P.C. and as

provided in Rule 13 (3) of the Rules of 1984. At the cost of

repetition, it needs to be mentioned that section 24 (6) of Cr.P.C. is

not deleted and further, the Rules of 1995 and 1997 are not repelled

or altered by the State Government. In view of the power of the

State Government to make Rules under Article 309 of Constitution of

India and aforesaid circumstances, presumption is not available in

favour of the State that those Rules are repelled or altered. In that

regard, it also needs to be kept in mind that the rights of the

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persons already appointed as per the Rules of 1995 cannot be taken

away by making new Rules which will affect the service conditions of

these persons. Appointment on contract basis in such cases of all

Additional Public Prosecutors and Public Prosecutors is against spirit

of section 24.

24) It is also not possible to give harmonious construction to

the procedure given in sub-section (6-A) of section 24 of Cr.P.C. and

the Rules of 1995 and 1997. Due to the existence of aforesaid Rules

framed under Article 309 of Constitution of India, the amendment to

section 24 made in the year 2014 viz. addition of sub-section (6-A)

has not opened the door for the Government to make appointments

otherwise than provided in the procedure prescribed in the Rules of

1997. These Rules of 1995 and 1997 have binding effect and they

shall apply and prevail over the amendment made by the State viz.

addition of sub-section (6-A) to section 24 of Cr.P.C. In view of this

position of law, the persons who are already appointed on the posts

of Public Prosecutors and Additional Public Prosecutors (on contract

basis) by using the provisions of section 24 (4), (5) and (6-A) have

no right as such to continue to work on those posts. As these

appointments are made by the Government on contract basis which

could not have been done, they need to be removed.

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25) If the State Government wants to use the power shown

in section 24 (6-A) of Cr.P.C., it needs to do the needful with regard

to the Rules of 1997. It needs to be observed that the provisions of

sections 24 and 25 give only necessity of appointments of

independent Prosecuting Officers and as soon as the State

Government creates a regular cadre as mentioned in section 24 (6)

of Cr.P.C. and explanation 'a' given to section 24 (6) of Cr.P.C., the

State Government is not expected to fall back to sections 24 (4) and

24 (5) and avoid the procedure prepared by it under Article 309 of

Constitution of India. Rules of 1984 are superceded by the Rules of

1997. Thus, the main relief claimed in the petition viz. the

consideration of Assistant Public Prosecutors appointed as per the

Rules of 1995 to consider them for giving promotions to the posts of

Additional Public Prosecutors and Public Prosecutors in the names

mentioned in the Rules of 1997 needs to be given to them.

26) The record produced shows that after the decision of the

Apex Court given in Civil Application No. 676/1982 on 21.4.1995,

the State Government issued Government Resolution ('GR' for

short) dated 20.5.1997 for compliance of the directions given by the

Apex Court. By this GR, the State Government separated the

Prosecuting Officers from investigating agency, from the control of

superior police officers. The Rules of 1995 were already framed and

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separate posts of Directors and other Officers were created by the

GR of 20.5.1997. As many as 162 posts of Additional Public

Prosecutors were created for districts and 26 posts of Assistant

Directors and Public Prosecutors for the 26 districts were

created showing that posts of Public Prosecutors were promotional

posts for Additional Public Prosecutors. In spite of creation of these

posts and making of the Rules of 1997 for making appointments of

the Additional Public Prosecutors (50% of the total posts) by

nomination, they were not filled. It appears that after creation of the

posts under GR of 20.5.1997, promotions were given to 26 Assistant

Public Prosecutors to the posts of Additional Public Prosecutors.

There is one more order issued in accordance with GR of 20.5.1997

and it is dated 14.9.1999 and under that order, promotions were

given to as many as 53 Assistant Public Prosecutors to the posts of

Additional Public Prosecutors. It appears that 50% of the posts

created even in 1997 were not given to the Assistant Public

Prosecutors as mentioned in the GR of 1997 and the Rules of 1997.

Further, at the cost of repetition, it needs to be mentioned that the

procedure for appointment on remaining 50% posts of Additional

Public Prosecutors as provided in Rules of 1997 was not followed.

This shows that the State Government wanted to make

appointments of the persons of it's choice and impartiality in the

appointment process was not observed. These circumstances need

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to be considered as background in the present proceeding.

27) Before parting with the decision, we must observe that

the procedure given for making appointments of Public Prosecutors

and Additional Public Prosecutors in the Rules of 1997 will ensure to

large extent the competency of persons selected, the independence

of the Prosecuting Officers and also their accountability. The term

'independence' has significance as described by the Apex Court in

S.B. Shahane's case cited supra and other catena of cases and that

independence can be achieved in real sense by following the

procedure given in the Rules of 1995 and 1997. In the result, we

pass the following order.

                                     ORDER

I)                 The petition is partly allowed.


II)                The respondents/State Government is hereby directed to

act as per the Rules of 1997 and make appointments of Public

Prosecutors and Additional Public Prosecutors for districts. Till the

Rules of 1997 as mentioned above are in existence, they will prevail

and apply in favour of the petitioners, the persons appointed under

the Rules of 1995. It is further declared that these Rules cannot be

altered in such a way that they will adversely affect the service

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conditions of the persons already appointed as per the Rules of

1995. Further direction is given to the State to process the matters

of the persons appointed under the Rules of 1995 to give them

benefit of the Rules of 1997. Time of six months is given to the State

for such processing of the matter.

III) Considering the possibility that more number of

Additional Public Prosecutors are appointed on contract basis than

required and the difficulties which the State Government may face,

50% posts of Additional Public Prosecutors which are to be created

in districts as per the requirement on the date of this decision will go

to the persons appointed as per the Rules of 1995. It will be open to

the State Government to make assessment about the requirement of

the posts of Additional Public Prosecutors for each district as on the

date of the decision. The State Government is to appoint the

Additional Public Prosecutors of the quota of promotion on the basis

of posts made available in the year 1997 and for that the process is

to be completed within three months.

IV) The relief claimed by the petitioners to consider them for

the appointments on the posts of Public Prosecutors and Additional

Public Prosecutors for working in High Court is refused.

V) Civil applications are disposed of accordingly.

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Rule is made absolute in aforesaid terms.

. After pronouncement of the judgment, learned A.G.P.

Shri. S.B. Pulkundwar submitted that the State wants to challenge

the order and wants to take proper steps and for that, State wants

stay to the execution and operation of the decision. Time of two

months is given. But this stay will not operate in respect of the

entitlement of the Assistant Public Prosecutors to get 50% quota as

provided in aforesaid Rules. That needs to be implemented

immediately.

         [SUNIL K. KOTWAL, J.]               [T.V. NALAWADE, J.]



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