Bombay High Court
Dilip Gangaram Patil vs The State Of Maharashtra And ... on 6 June, 2017
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9000 OF 2016
Dilip s/o Gangaram Patil,
age: 55 years, Occ: Advocate,
R/o 34A, "Mandad", Bijalinagar,
Wadi-Bhokar Road, Deopur,
Dhule, District Dhule. Petitioner
Versus
01 The State of Maharashtra,
through its Principal Secretary,
Law & Social Justice Department,
Mantralaya, Mumbai-32.
02 The Secretary,
Law & Judiciary Department,
Law & Social Justice Department,
Mantralaya, Mumbai-32.
03 Sunil Popatlal Jain,
age: major, Occ: Legal Practitioner,
presently working as
District Government Pleader,
District Government Pleader's Office,
District & Sessions Court premises,
Dhule, District Dhule.
04 Deleted vide Court's
order dated 24.08.2016.
05 The District Magistrate,
Dhule. Respondents
Mr.V.D.Sapkal, advocate for the petitioner.
Mr.V.J.Dixit, Special Counsel with Mr.A.B.Girase, Government
Pleader for Respondents No.1, 2 & 5.
Respondent No.4 deleted vide Court's order dated 24.08.2016.
Mr.R.S.Deshmukh, advocate for Respondent No.3.
::: Uploaded on - 08/06/2017 ::: Downloaded on - 09/06/2017 00:41:13 :::
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CORAM : R.M.BORDE AND
K.L.WADANE, JJ.
Reserved on : 02nd May, 2017
Pronounced on:06th June, 2017.
JUDGMENT (Per R.M.Borde, J.):
1 Heard. Rule. Rule made returnable forthwith and
heard finally by consent of learned Counsel for respective parties.
2 The petitioner is objecting to the appointment of
Respondent No.3 as District Government Pleader and Public
Prosecutor for District Dhule, made in pursuance to the
notification issued by the Government on 05.07.2016 and praying
to quash the said notification. The petitioner is also seeking a
direction to the respondents to appoint him as District Government
Pleader and Public Prosecutor for District Dhule in accordance
with recommendations made by the Interview Committee and the
High Power Committee. Though the petitioner has prayed for
issuance of directions for making his appointment as District
Government Pleader and Public Prosecutor, the said relief has not
been pressed seriously and as such, there is no reason to consider
the prayer made by the petitioner in that regard. The issue raised
in the instant petition primarily relates to the appointment of
respondent no.3 as District Government Pleader and Public
Prosecutor for District Dhule.
3 The State Government had issued an advertisement on
03.02.2015 inviting applications for selection of District
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Government Pleader and Public Prosecutor as well as Assistant
Government Pleader/Additional Public Prosecutor in District &
Sessions Court at Dhule.
4 In pursuance to the advertisement issued on behalf of
the Government, twelve applications were received for the post of
District Government Pleader & Public Prosecutor, whereas,
fourteen applications were received for the post of Assistant
Government Pleader/Additional Public Prosecutor. The petitioner
was also one of the applicants for the post of District Government
Pleader and Public Prosecutor for Dhule district. The Committee
was constituted for conducting interviews in accordance with
amended rule 13(2)(a) of the Maharashtra Law Officers
(Appointment, Conditions of Service And Remuneration) Rules,
1984 (hereinafter referred to as, "the Law Officers Rules, 1984").
The Committee consists of Advocate General or his nominee and
the District Magistrate. The District Magistrate is expected to
consult the Principal District & Sessions Judge, Dhule and as
such, remarks of Principal District Judge were invited in respect of
performance of the candidates who had applied in pursuance to
the advertisement.
5 The Committee consisting of nominee of the Advocate
General and the District Magistrate recommended names of the
advocates to the State Government, as mandated under the Rules
on 28.05.2015. The name of the petitioner and one Mr.Wagh were
recommended. However, according to the petitioner, there is no
specific recommendation in respect of respondent no.3. It is also
contended by the petitioner that there are certain criminal cases
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pending against respondent no.3, however, respondent no.3 did not
disclose in respect of pendency of criminal cases against him or his
involvement in the criminal cases. Apart from the fact that name
of respondent no.3 was not recommended by the Committee
constituted under the rules, respondent no.3 is not worthy to be
entrusted with the responsibility of ovated office of District
Government Pleader and Public Prosecutor for District Dhule. The
Principal District and Sessions Judge, Dhule, did not recommend
name of respondent no.3 and also intimated in respect of
involvement of respondent no.3 in number of crimes. It is the
contention of petitioner that though respondent no.3 has been
acquitted in S.T.C. No.7940/2001 (Crime No.150/2001), the order
of acquittal has been challenged in Criminal Revision Application
No.295/2005 presented to the High Court and the Revision
Application is admitted and pending for final disposal. Respondent
No.3, according to the petitioner, is accused of committing crime
involving moral turpitude and as such, ought not to have been
considered for appointment. According to the petitioner,
appointment of respondent no.3 is made as a result of political
interference overlooking his past criminal record and doubtful
integrity. The petitioner, as such, prays to quash the notification
appointing respondent no.3 as District Government Pleader and
Public Prosecutor.
6 In reply to the contentions raised by the petitioner,
respondent no.3 contends that his name has been included in the
panel prepared by the Committee conducting interview. The
Committee conducting interview consists of a person nominated by
the Advocate General and Collector of the concerned district and
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the relevant rule mandates making appointment of a candidate
from the panel so prepared for such appointment. Respondent
No.3, thus, contends that requirement of law, that the name of the
candidate shall appear in the panel prepared by the Interview
Committee, has been fulfilled and as such, there is no scope for
interference in the matter.
7 So far as the contention raised by petitioner in respect
of pendency of Criminal Case is concerned, it is contended by
respondent no.3 that at present there are no criminal cases
pending against him. In Criminal Case bearing No.S.T.C.C.
No.7940/2001 (Crime No.150/2001) under the provisions of
Sections 448, 504, 506 and 509 of the Indian Penal Code,
respondent no.3 has been acquitted by the concerned Court by an
order dated 18.08.2005. Though the order of acquittal is
impeached by presenting Criminal Revision Application
No.295/2005 before the High Court and though said proceedings
are pending, it does not have any adverse effect on the eligibility of
respondent no.3 for being considered for the post of District
Government Pleader and Public Prosecutor. There was another
criminal case bearing S.T.C.C. No.5265 of 2004 (Crime
No.82/2004), wherein respondent no.3 was involved along with 60
other accused. However, proceedings of the case has been stayed
in view of provisions of Section 258 of the Criminal Procedure
Code.
8 It is stated that although respondent no.3 was active
party worker of Shivsena party, however, since 2010 onwards, he
ceases to be a member of any political party. According to
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Respondent No.3, his appointment is made in conformity with
procedure prescribed under the rules as well as in accordance with
Section 24 of the Code of Criminal Procedure. Respondent No.3
contends that scope of judicial review of the action of appointment
of respondent no.3 as a District Government Pleader and Public
Prosecutor, in exercise of powers under Article 226 of the
Constitution of India, is limited and it would be impermissible for
the High Court to cause interference in the action of the State
Government of appointing respondent no.3 as District Government
Pleader and Public Prosecutor.
9 Respondent No.3 further contends that in view of the
judgment of the Hon'ble Supreme Court in the case of State of
Uttar Pradesh & another Vs. Johri Mal, reported in AIR 2004 SC
3800, appointment of respondent no.3 is in the nature of
professional engagement and the State Government has a
discretion to engage the advocate of its choice to represent the
State in the Court of law. It would be inappropriate, according to
respondent no.3, to direct termination of professional engagement
of respondent no.3 made by the State Government. Respondent
No.3 further contends that since he has been appointed in
conformity with the Law Officers Rules, 1984 and since his name
appears in the panel prepared by the Interview Committee
consisting of nominee of Advocate General and District Magistrate,
no fault can be found with the appointment of respondent no.3.
Respondent No.3, as such, prays for dismissal of the writ petition.
10 The Law Officers Rules, 1984, prescribe eligibility and
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modalities in respect of appointment of the Government Pleader or
Additional Government Pleader or Public Prosecutor or Additional
Public Prosecutor in the High Court as well as in the District
Court. The rules define "Government Pleader" as an advocate
appointed to that post under the rules by the Government in the
Law and Judiciary Department in relation to any Court at the
district headquarters in the mofussil, to be called a District
Government Pleader, to conduct civil suits, appeals, applications
and other proceedings, for and on behalf of the State or its officers
and includes an Additional or Assistant Government Pleader and
Honorary Assistant to a District Government Pleader. The
eligibility for appointment is prescribed under Rule 11 of the Rules
of 1984. Initially Rule 13, which relate to procedure of
appointment, did not provide for constitution of a Committee for
conducting oral interview of the candidates to examine the
suitability and to judge merit of the candidates. The Division
Bench of this Court at Nagpur in Criminal Appeal No.161/2001,
decided on September 11, 2014, made certain observations in
the order which necessitated amendment in Rule 13 The Division
Bench has observed in the said order that the procedure
prescribed at present mandates routing of appointments through
a Committee consisting of learned Advocate General and Principal
Secretary, Law & Judiciary Department. However, the present
system does not provide for orally interviewing the candidates
prior to their appointment as Law Officers. Oral interview is one of
the suitable methods for judging merits of a candidate. The Court
expected, as such, to hold the interviews prior to making
appointments as Law Officers by the persons who are having
expertise in law so as to ensure that at least lawyers with basic
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understanding of law and knowledge of at least basic principles of
law would be appointed. A direction was issued to the State
Government to reframe Rules for making appointments of Law
Officers.
11 In observance of the directions issued by Division
Bench of this Court, Rule 13 of Law Officers Rules of 1984 was
amended and amended sub rule (4) of Rule 13 provides thus:
13 Appointment - (1) ... ... ... ...
(2) .... ..... ..... ...... ...... ...... ....
(I) ..... ...... ..... ...... ...... ..... ....
(ii).... ..... ..... ....... ...... ..... ....
(iii) ..... ..... ..... ...... ...... .....
(3) ..... ..... ..... ...... ...... ......
(4) The Collector of every district other than
the district of the City of Bombay and the
Bombay Suburban District shall invite
applications from advocates in such manner as
he thinks fit, for inclusion of the names of
suitable candidates from amongst them. With
the approval of the Government, in the panel
for appointment of District Government Pleader
or Additional or Assistant Government Pleader
or Honorary Assistant to the District
Government Pleader, or as the case may be,
subordinate Government Pleader and the
government shall select a candidate from the
panel so prepared for any such appointment.
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12 The Law & Judiciary Department issued a circular on
16.03.2015 under the signature of Legal Advisor-cum-Joint
Secretary, Law & Judiciary Department concerning appointments
to the post of District Government Pleader and Public Prosecutors
as well as Assistant Government Pleader/Additional Public
Prosecutors in all the districts. In paragraph no.3 of the Circular,
it is recorded that, in view of Section 24 of the Code of Criminal
Procedure and Rule 13 of Law Officers Rules, 1984, panel of
advocates is required to be prepared and same shall be forwarded
to the State Government for approval. The detailed procedure in
respect of inviting applications, etc. has been prescribed in the
circular. In sub paragraph (5) of paragraph 4, it is recorded that
in view of directions contained in the judgment of this Court in
Writ Petition No.7232 of 2004, decided on 12.08.2015, panel of
three candidates is required to be prepared. The District
Magistrate shall consult the Principal District & Sessions Judge
and by giving primacy to the opinion of Principal District &
Sessions Judge, the panel shall be prepared. The information
shall be submitted in proforma "A" and "A-1" appended to the
circular. It transpires that in pursuance to the advertisement,
twelve applications were received for the post of Government
Pleader. Those were considered by the Committee consisting of
nominee of Advocate General and the District Magistrate and
information in proformas "A" and "A-1" has been transmitted to the
Government by the District Magistrate on 28.05.2015.
13 So far as respondent no.3 is concerned, the opinion
expressed by the Principal District & Sessions Judge in respect of
Respondent no.3 is:
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"Not recommended. Gets annoyed very often
and of complaining nature. Aggressive
advocate. Average performance. Not sufficient
knowledge of civil law and not sufficient
experience of civil matters."
The recommendation of the Interview Committee,
concerning respondent no.3, is:
"Recommended on the basis of his performance
during the interview. However, it will not be
appropriate to appoint him as District
Government Pleader, because he has a lineage
towards a particular political party. Some
police cases were registered against him but he
has vehemently avoided to furnish the details.
This proves that he tried to conceal the facts
and vital information about the police cases
registered against him. Therefore, his integrity
cannot be certified."
14 That, so far as petitioner and one Mr.Adhar Santu
Wagh are concerned, their candidature has been recommended by
the Principal & District Sessions Judge as well as by the Interview
Committee. The Interview Committee has strongly recommended
candidature of petitioner and has recorded thus:
"Strongly recommended. Sufficient experience
in conducting Civil and Criminal matters. Very
good manners and dressing sense at interview.
Very good expressing ability and legal acumen."
So far as Mr.Adhar Santu Wagh is concerned, his
candidature has been recommended by the Interview Committee
and it is recorded that he was working as Assistant Government
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Pleader since 1991 at Dhule.
15 The District Magistrate has communicated necessary
information to the State Government in proformas "A" and "A-1".
The opinion expressed by the Principal District & Sessions Judge
and remarks about suitability for appointment as District
Government Pleader and Public Prosecutor have been
communicated in proforma "A", as recorded above. Proforma "A-1"
is to be filled in and signed by the Principal District & Sessions
Judge, Dhule. So far as respondent no.3 is concerned, the
Principal District & Sessions Judge, Dhule, has recorded his
remark against the column "General reputation" as "Aggressive
Advocate". So far as performance is concerned, the remark offered
is "Average". So far as conduct of respondent no.3 is concerned, it
is recorded, "Gets annoyed very often and of complaining nature".
Against the column, "Result", the Principal District & Sessions
Judge has offered a remark "Not recommended".
16 On perusal of the remarks of the Interview Committee
as well as opinion of Principal District & Sessions Judge, it is
evident that candidature of respondent no.3 has not been
recommended by the Interview Committee for his appointment as
District Government Pleader and Public Prosecutor.
17 The State Government has constituted a High Power
Committee for scrutinising the applications for appointment to the
post of District Government Pleader and Public Prosecutor for
making recommendations to the State Government. The Advocate
General, State of Maharashtra, is the Chairman of the High Power
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Committee, whereas, Principal Secretary, Law & Judiciary
Department, is one of the members. Accordingly, the High Power
Committee has scrutinised the applications and tendered
recommendations to the State Government. The proceedings of
the High Power Committee are placed on record at Exhibit-C.
Though the High Power Committee has included name of
respondent no.3 in the panel, the Secretary, Law & Judiciary
Department, has opposed the notings and tendered descending
note. The Principal Secretary, Law & Judiciary Department, has
invited attention to amended rule 13(4) of the Rules of 1984 as well
as Section 24 (4) of the Code of Criminal Procedure. It is recorded
in the note that the High Court, in its judgment in the matter of
Vilas Jagannath Dhorde Patil Vs. State of Maharashtra (Writ
Petition No.1507/2009, decided on 17.07.2009), expressed that the
only eligibility criteria for consideration of a candidate is inclusion
of a candidate in the list prepared by the District Magistrate.
A particular recommendation of the District Magistrate or that of
the High Power Committee is not peremptorily binding upon the
Government. Technically speaking, though the Government may
appoint a candidate who is not recommended by the High Power
Committee, provided his name is included in the list prepared by
the District Magistrate. Sub rule (4) of Rule 13 of Rules of 1984,
however, requires that the Committee at the District Level, shall
recommend the names of the candidates which in its opinion are
most suitable and meritorious, for such appointment.
18 In the instant matter, though the proceedings of the
High Power Committee make a reference to the name of respondent
no.3 as a candidate included in the panel, there does not appear to
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be a clear recommendation by the Interview Committee consisting
of nominee of the Advocate General and the District Magistrate.
Sub-rule (4) of Rule 13, as amended, provides that the Collector of
every district other than the district of the City of Bombay and the
Bombay Suburban District shall invite applications from Advocates
in such manner as he thinks fit, for inclusion of the names of
suitable candidates from amongst them. With the approval of the
Government, in the panel for appointment of District Government
Pleader or Additional or Assistant Government Pleader or
Honorary Assistant to the District Government Pleader, or as the
case may be, sub-ordinate Government Pleader and the
Government shall select a candidate from the panel so prepared
for any such appointment. The prerequisite for making
appointment to the post of District Government Pleader is that the
name of the candidate shall be recommended and shall be
included in the list prepared by the Committee consisting of
nominee of the Advocate General and the Collector of the
concerned District.
19 It must be reiterated that so far as recommendation of
the Interview Committee concerning respondent no.3 is concerned,
is not favourable to respondent no.3 and it is clearly recorded by
the Interview Committee that, "It may not be appropriate to
appoint respondent no.3 as District Government Pleader because he
has a lineage towards particular political party. Some police cases
were registered against him but he has vehemently avoided to
furnish the details. This proves that he tried to conceal the facts
and vital information about the police cases registered against him.
Therefore, his integrity cannot be certified". Though, in the first
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sentence, it is recorded that, "Recommended on the basis of his
performance during the interview", the remark, in its totality needs
to be considered and only first sentence cannot be read out of
context to interpret in favour of respondent no.3. There is a clear
opinion expressed by the Interview Committee that respondent
no.3 is not suitable for appointment to the post of District
Government Pleader and Public Prosecutor and that he is involved
in criminal cases and his integrity also cannot be certified. It is,
thus, clear that the mandate of rule 13(4) of the Rules of 1984 has
been breached and appointment of respondent no.3 is clearly in
breach of the rules as well as cannot be said to be in the public
interest.
20 It cannot be controverted that the public interest
would be safeguarded only when good and competent lawyers are
appointed as District Government Pleaders and Public Prosecutors
and good and competent lawyers are required to be appointed for
(i) good administration of justice; (ii) to fulfill its duty to uphold the
rule of law; (iii) its accountability to the public; and (iv)
expenditure from the tax payers' money.
21 The State Government shall have to ensure for
appointment of efficient and honest lawyers with a view to
safeguard public interest.
22 As regards status of a Government Pleader and his
duties are concerned, the Hon'ble Supreme Court has observed in
the matter of Mundrika Prasad Sinha Vs. State of Bihar, reported
in AIR 1979 SC 1871, that a Government Pleader is more than an
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advocate for the litigant and that a Government Pleader, in a sense,
every member of the legal profession, has a higher dedication to
the people. In paragraphs no.15 and 16 of the judgment, the
Supreme Court has observed thus:
"15 Coming to the larger submission of
counsel for the petitioner, we do recognise its
importance in our era of infiltration of
politicking even in forbidden areas. A
Government Pleader is more than an advocate
for a litigant. He holds a public office. We
recall with approval the observations a Division
Bench of the Madras High Court made in
Ramachandran v. Alagiriswami and regard the
view there, expressed about a Government
Pleader's office, as broadly correct even in the
Bihar set-up.
".... the duties of the Government Pleader,
Madras are duties of a public nature. Besides,
as already explained the public are genuinely
concerned with the manner in which a
Government Pleader discharges his duties
because, if he handles his cases badly, they
have ultimately to foot the bill. The Rajasthan
case does not take into account all the aspects
of the matter.
(36) The learned Advocate General argued
that the Government Pleader, Madras is only an
agent of the Government, that his duties are
only to the Government who are his principals
and that he owes no duty to the public at all
and that for that reason he would not be the
holder of a Public Office.
(37) It is difficult to accept this view. The
contention of the learned Advocate General may
have been less untenable if the duties of the
Government Pleader were merely to conduct in
courts cases to which Government are a party.
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But, as the rules stand, he has a number of
other duties to discharge. Besides, even if his
only duty is the conduct of cases in which
Government have been impleaded, still as
explained more than once before the public are
interested in the manner in which he
discharges his duties.
...........................
(90) I am clearly of opinion that having regard
to the fact that the Government Pleader of this
court is employed by the State on remuneration
paid from the public exchequer and having
regard to the various functions and duties to be
performed by him in the due exercise of that
office, most of which are an independent and
responsible character, the office must be held to
be a public office within the scope of a quo
warranto proceeding.
I consider that the most useful test to be
applied to determine the question is that laid
down by Erle. J. in (1851) 17 QB 149. The three
criteria are, source of the office, the tenure and
the duties. I have applied that test and I am of
the opinion that the conclusion that the office
is a public office is irresistible."
16 In this view, ordering about a
Government Pleader is obnoxious but nothing
savouring of such conduct is made out
although we must enter a caveat that
Governments under our Constitution shall not
play with Law Offices on political or other
impertinent considerations as it may effect the
legality of the action and subvert the rule of law
itself. After all, a Government Pleader and, in a
sense, every member of the legal profession,
has a higher dedication to the people.
23 In the matter of State of U.P. Vs. U.P. State Law
Officers' Association, reported in AIR 1994 SC 1654, the
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Supreme Court has observed that the Law Officers are not
appointed as a part of the spoils system.
24 The Hon'ble Supreme Court, in paragraph 44 of the
judgment in the matter of State of U.P. Vs. Johri Mal (supra), has
observed thus:
"44 Only when good and competent counsel
are appointed by the State, the public interest
would be safeguarded. The State while
appointing the public prosecutors must bear in
mind that for the purpose of upholding the rule
of law, good administration of justice is
imperative which in turn would have a direct
impact on sustenance of democracy. No
appointment of public prosecutors or district
counsel should, thus, be made either for
pursuing a political purpose or for giving some
undue advantage to a section of people.
Retention of its counsel by the State must be
weighed on the scale of public interest. The
State should replace an efficient, honest and
competent lawyer, inter alia, when it is a
position to appoint a more competent lawyer. In
such an event, even a good performance by a
lawyer may not be of much importance."
25 In the instant matter, as has been recorded above,
there is no clear recommendation of Interview Committee, as
mandated by Rule 13(4) of the Rules of 1984 favouring
appointment of respondent no.3. Apart from this, the Principal
District & Sessions Judge has adversely commented upon
suitability of respondent no.3.
26 Though it is contended that in view of Section 24 of
the Criminal Procedure Code, while making appointment to the
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post of District Government Pleader in the State of Maharashtra,
it is not necessary to consult the Principal District Judge and the
opinion of the Sessions Judge has no primacy so far as making
appointment to the post of Public Prosecutor and the District
Magistrate is expected to prepare the panel with the approval of
the State Government.
27 As has been recorded above, the circular issued by the
Law & Judiciary Department of the State of Maharashtra clearly
records in paragraph 5 that while preparing the panel, the District
Magistrate shall consult the Principal District & Sessions Judge
and the opinion of the Principal District & Sessions Judge shall be
given due weightage. The State Government has also prescribed
proforma "A-1" which provides for recording opinion of the
Principal District and Sessions Judge. The State Government has
been following the procedure for inviting opinion of the Principal
District & Sessions Judge while preparing the panel for making
appointment to the post of District Government Pleader and the
Public Prosecutor. At the cost of repetition, it must be noted here
that candidature of respondent no.3 has not been recommended
by the Principal District & Sessions Judge and the Principal
District and Sessions Judge has adversely commented upon
suitability of respondent no.3 for the post of District Government
Pleader and Public Prosecutor.
28 Learned Counsel appearing for the petitioner has
invited our attention to the judgment of the Division Bench of this
Court in the matter of Jayant s/o Shivajirao Jagdale Vs. State
of Maharashtra, reported in 2010 (2) ALL MR 208. The petitioner
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before the High Court, who was an advocate practising in the
District & Sessions Court, Osmanabad, requested the High Court
to quash the order dated 09.06.2009, issued by the Law &
Judiciary Department, appointing one Mr.Shashikant Nimbalkar
as District Government Pleader and Public Prosecutor for
Osmanabad district and for setting aside the order passed by the
Law and Judiciary Department dated 22.05.2009 staying the effect
and operation of the order appointing the petitioner as District
Government Pleader and Public Prosecutor for Osmanabad
district. The name of the petitioner, before the High Court, was
recommended for the post of District Government Pleader and
Public Prosecutor and in fact a notification, in that regard also
came to be issued on 22.05.2009, which was published in the
Government Gazette on 09.07.2009. The said notification has
been stayed for the reason that there was no recommendation from
the Principal District & Sessions Judge, Osmanabad for inclusion
of name of the petitioner in the panel prepared for making
appointment to the post. The petitioner, before the High Court,
contended that in view of Section 24 of the Code of Criminal
Procedure, it was not necessary for the State to consult the
Principal District & Sessions Judge and the amended Section 24,
so far as it applies to the State of Maharashtra, does not provide
for consultation with Principal District & Sessions Judge before
finalisation of panel. It was, thus, contended before the High
Court that suspension of the notification of appointment of the
petitioner to the post of District Government Pleader and Public
Prosecutor on the ground of failure of the Collector to consult the
Principal District & Sessions Judge, is not sustainable and the
order deserves to be set aside. Reliance was placed by the
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petitioner on the judgment in the matter of Vilas Dhorde Patil
(supra). In Dhorde Patil's case, referring to the provisions of
Section 24(4) of the Code of Criminal Procedure, so far as it applies
to the State of Maharashtra, the Division Bench disagreed with the
opinion expressed in the judgment in the matter of Mrs. Neelima
Sadanand Vartak Vs. State of Maharashtra & others, reported in
2005 (5) BCR 750. The Division Bench, in the matter of Vilas
Dhorde Patil has referred to the statement of objects and reasons,
which reads thus:
"STATEMENT OF OBJECTS AND REASONS"
1 ......................
2 ......................
3 ......................
4 With the experience of the working of the
new Code for more than six years, the State
Government has come to the conclusion that
the statutory obligation on Government to
consult the Judiciary, which makes its
recommendation almost binding, should be
dispensed with the Government should be free
to appoint Counsel of its own choice and
confidence, both in the High Court and in the
Sessions Court."
It is further observed thus:
The legislature has in its wisdom thought
to exclude the requirement of consultation with
District and Sessions Judge and has given free
hand to the Government to make the
appointments, as per its own choice and
confidence, of the persons whose names are
included in the panel prepared under sub-
section (4) of section 24. It is urged that now, to
read again the said provision in amended
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provision, would not only defeat the very object
of amendment, but would also amount to
legislating, as has been pointed out by the
respondents. The learned counsel for the
respondents contended that the view taken by
the Division Bench of this Court in Vartak's
case is contrary to the intendment of
legislature. We however, do not express any
opinion either one way or another, for the simple
reason that in the instant case, there has been
consultation with the District and Sessions
Judge by the District Magistrate.
Bare perusal of the provisions of sub-
section (4) and (5) of section 24 reveals that only
eligibility criteria for being appointed to the post
of District Government Pleader and Public
Prosecutor is that the name of the candidate
should be included in the panel of person fit to
be appointed, prepared by the District
Magistrate. There is no dispute in the present
case that the name of the petitioner as well as
that of respondent No.5 is included in the panel
of fit persons prepared under sub-section (4) of
section 24 by the District Magistrate. The
prohibition under sub-section (5) of section 24
does not at all operate in this case."
29 In the matter of Jayant s/o Shivajirao Jagdale's
matter, the State Government took a totally contradictory stand
and it was argued that the State Government is following the
policy of consulting Principal District & Sessions Judge of the
concerned district and as such the State of Maharashtra adopted
the stand, which was reflected through the statement made by the
learned Advocate General in the case of Mrs.Neelima Vartak. In
Jayant Jagdale's matter, the State has maintained its stand of
necessity of observance of practice of consulting the Principal
District and Sessions Judge while preparing panel. The stand
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taken by the State of Maharashtra in the matter of Jayant
Jagdale's matter was accepted. In paragraph 17 of the judgment,
the Division Bench has observed thus:
"17 The observations of the Apex Court in
Johri Mal's case and the stand accepted by the
Government of Maharashtra that the State will
have to follow the decision in Johri Mal's case,
we need not dilate on the arguments advanced
on behalf of the State in the case of Vilas
Dhorde Patil (cited supra). More so the practice
of consultation with the District Judge
according to the learned Counsel Shri Damle, is
continued since long and the State is
determined to go ahead with the said practice
in tune with the judgment of the Apex Court
and the judgment of the Bombay High Court in
Vartak's case. There is no dispute on the point
that the name of the petitioner was not
recommended by the District and Sessions
Judge Osmanabad."
30 The Division Bench, thus, opined that the practice
adopted by the State Government of having consultation with the
Principal District & Sessions Judge is a longstanding practice and
is in consonance with the observations of the Hon'ble Supreme
Court in the matter of Johri Mal. In paragraph no.22 of the
judgment, the Division Bench has observed thus:
"22 In view of the stand adopted by the
State Government that the name of the
petitioner was not recommended by the District
and Sessions Judge we find that the decision to
cancel the appointment of the petitioner could
not be termed to be unreasonable and arbitrary.
We expect the State Government to take prompt
and appropriate decision in respect of the
preliminary enquiry report submitted in respect
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of the allegations made against respondent No. 2
at the earliest on its own merits and keeping in
view the observations made by us, as above.
31 In the instant matter, the learned Special Counsel
appearing for the State Government, tries to disown the stand
taken by the State Government in the matter of Jayant Jagdale
and prefers to place reliance on the observations made by the High
Court in the mater of Vilas Dhorde Patil. It does appear that the
State Government is not consistent with its stand and tries to shift
its stand as per convenience in different matters. Although the
circular issued by the State Government mandates calling opinion
of the District & Sessions Judge in proforma "A-1" and though
paragraph no.5 of the aforesaid circular specifically directs the
District Magistrate to provide due weightage to the opinion of the
Principal District & Sessions Judge, we fail to understand as to
how the State Government now can adopt a contrary stand that it
was uncalled for to give any weightage to the opinion expressed by
the Principal District & Sessions Judge. As has been contended
by the learned Special Counsel that in the matter of Jayant
Jagdale, it was a longstanding and established practice adopted by
the State Government to consult the Principal District & Sessions
Judge and in the instant matter also the circular issued on behalf
of the State Government not only requires calling for opinion of the
Principal District & Sessions Judge, but mandates the District
Magistrate to give due weightage to the opinion expressed by the
Principal District & Sessions Judge. It does appear that the
longstanding practice is in consonance with the opinion expressed
by the Hon'ble Supreme Court in the matter of Johri Mal. It does
appear that the State Government shifts the stand in each matter
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to suit its convenience. In the instant matter, there is neither
positive recommendation in favour of respondent no.3 by the
Principal District & Sessions Judge as well as opinion expressed
by the Interview Committee also cannot be considered as a
recommendation for making appointment of respondent no.3 as
District Government Pleader. In any case, appointment of
respondent no.3 is in breach of the policy adopted by the State
Government as well as rule 13(4) of the Rules of 1984.
32 That, so far as contention raised by respondent no.3
regarding impermissibility to review administrative decision in
exercise of powers under Article 226 of the Constitution is
concerned, same is devoid of substance. The Hon'ble Supreme
Court, in the matter of Johri Mal (cited supra), has considered
scope of judicial review of administrative decisions. In paragraphs
no.28 and 31 of the judgment, the Hon'ble Supreme Court has
observed thus:
"28 The scope any extent of power of the
judicial review of the High Court contained in
Article 226 of the Constitution of India would
vary from case to case, the nature of the order,
the relevant statute as also the other relevant
factors including the nature of power exercised
by the public authorities, namely, whether the
power is statutory, quasi judicial or
administrative. The power of judicial review is
not intended to assume a supervisory role or
done the robes of omnipresent. The power is
not intended either to review governance under
the rule of law nor do the Courts step into the
areas exclusively reserved by the supreme lex to
the other organs of the State. Decisions and
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actions which do not have adjudicative
disposition may not strictly fall for
consideration before a judicial review Court.
The limited scope of judicial review succinctly
put are:
(i) Courts, while exercising the power of
judicial review, do not sit in appeal over the
decisions of administrative bodies.
(ii) A petition for a judicial review would lie
only on certain well-defined grounds.
(iii) An order passed by an administrative
authority exercising discretion vested in it,
cannot be interfered in judicial review unless it
is shown that exercise of discretion itself is
perverse or illegal.
(iv) A mere wrong decision without anything
more is not enough to attract the power of
judicial review; the supervisory jurisdiction
conferred on a Court is limited to seeing that
Tribunal functions within the limits of its
authority and that its decisions do not
occasions miscarriage of justice.
(v) The courts cannot be called upon to
undertake the Government duties and
functions. The Court shall not ordinarily
interfere with a policy decision of the State,
Social and economic belief of a Judge should
not be invoked as a substitute for the judgment
of the legislative bodies. (See Ira Munn v. State
of Ellinois, 1876 (94) US (Supreme Reports) 113.
30 It is well settled that while exercising the
power of judicial review the Court is more
concerned with the decision making process
than the merit of the decision itself. In doing
so, it is often argued by the defender of an
impugned decision that the court is not
competent to exercise its power when there are
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serious disputed questions of facts; when the
decision of the Tribunal or the decision of the
fact finding body or the arbitrator is given
finality by the statute which governs a given
situation or which, by nature of the activity the
decision maker's opinion on facts is final. But
while examining and scrutinizing the decision
making process it becomes inevitable to also
appreciate the facts of a given case as otherwise
the decision cannot be tested under the
grounds of illegality, irrationality or procedural
impropriety. How far the court of judicial
review can reappreciate the findings of facts
depends on the ground of judicial review. For
example, if a decision is challenged as
irrational, it would be well-nigh impossible to
record a finding whether a decision is rational
or irrational without first evaluating the facts+
of the case and coming to a plausible
conclusion and then testing the decision of the
authority on the touch-stone of the tests laid
down by the Court with special reference to a
given case. This position is well settled in
Indian administrative law, therefore, to a limited
extent of scrutinizing the decision making
process, it is always open to the Court to review
the evaluation of facts by the decision maker."
33 Considering the limitations, as laid down aforesaid in
respect of exercise of powers of judicial review, we are of the
opinion that the instant matter fits within the exceptions carved
out in favour of taking judicial review of the administrative action.
The appointment of respondent no.3, as has been stated above, is
not as per the criteria prescribed for appointment to the post of
District Government Pleader and Public Prosecutor and is in clear
violation of rules prescribed by the State Government, apart from
the fact that well established practice of abiding by the opinion of
the Principal District & Sessions Judge has been deviated in the
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instant matter.
34 It has not been denied by respondent no.3 that he was
prosecuted in S.T.C.C. No.7940 of 2009 for commission of offences
punishable under Sections 449, 504, 506 and 509 of the Indian
Penal Code. The informant Sangita Jadhav, in the First
Information Report, lodged at City Police Station Dhule on
20.07.2001, has stated that while she was at her residence and
breast feeding her child, accused along with one Praksh forced
entry in her house. The accused was staring at the bare breast of
the complainant and while she tried to cover it, he told her as to
why she was covering her breast, he would disrobe her in open
court. Though respondent no.3, who was accused in the said
case, came to be acquitted, it must be taken note of that Criminal
Revision Application is filed challenging acquittal of respondent
no.3 and same has been admitted and pending for final disposal.
The District Government Pleader is expected to be a guardian and
protector of civil rights of the citizens and is expected to safeguard
rights of general public as against criminals and anti social
elements. It is a matter of concern as to how the State
Government thought it fit to appoint such a person whose integrity
is doubted, who was, at some point of time, involved in the crime
involving moral turpitude. It is also a matter of grave concern as
to why bypassing favourable recommendations in favour of other
candidates, the State Government has appointed a candidate who
was neither recommended by the Principal District & Sessions
Judge nor even by the Interview Committee. The observations
made by the Hon'ble Supreme Court, in the matter of Johri Mal,
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needs to be respected. "It is only when good and competent
counsel are appointed by the State, the public interest would be
safeguarded. The State, while appointing Public Prosecutors,
must bear in mind that for the purpose of upholding the rule of
law, good administration of justice is imperative which in turn
would have a direct impact on sustenance of democracy. No
appointment of public prosecutors or district counsel should,
thus, be made either for pursuing a political purpose or for giving
some undue advantage to a section of people".
35 In the instant matter, in spite of there being no
recommendation by the Interview Committee and adverse remarks
recorded by the Principal District and Sessions Judge, in spite of
involvement of respondent no.3 in various crimes, in spite of
observance of the Interview Committee that integrity of respondent
no.3 is doubtful, still the State Government has insisted to make
appointment of respondent no.3. Though the Secretary, Law &
Judiciary Department, has forwarded his descending note, the
State, in breach of the policy recorded in the circular dated
16.03.2015, proceeded to make appointment of respondent no.3,
which deserves to be set aside in public interest.
36 The appointment of respondent no.3 has also been
proved to be disastrous considering his post-appointment. The
Superintendent of Police, Dhule has lodged a complaint against
respondent no.3, to the Additional Secretary, Law & Judiciary
Department, which is placed on record by the petitioner,
complaining of undue interference in police investigation. The
District Government Pleader i.e. respondent no.3 is alleged to have
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questioned the police and raised an issue as to why the
investigating machinery is trying to please muslim community.
The allegations against respondent no.3 are in respect of
harbouring communal bias, which itself is not befitting to the
status of District Government Pleader. Though the complaint
made by the Superintendent of Police is at the stage of preliminary
investigation, the contents thereof itself speak of communal bias of
the District Government Pleader.
37 For the reasons recorded above, we are of the
considered view that appointment of respondent no.3 as District
Government Pleader, being in breach of Law Officers Rules of
1984, deserves to be set aside in public interest.
38 Writ Petition, thus, deserves to be allowed and is
accordingly allowed to the extent that the notification, appointing
respondent no.3 as District Government Pleader and Public
Prosecutor, district Dhule, dated 05.07.2016, is quashed and set
aside.
39 Rule is accordingly made absolute. In the facts and
circumstances of this case, there shall be no order as to costs.
40 At this stage, learned Counsel appearing for
respondent no.3 prays for suspension of operation of the judgment
so as to facilitate the respondent to avail of the remedies available
in law.
41 Normally, this Court would have considered the prayer,
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however, this is a peculiar case compelling us to turn down the
prayer. It is recorded in the judgment in detail that the Law
Officers Rules of 1984 have not been followed while appointing
respondent no.3 as District Government Pleader. Apart from non
observance of the rules, it is noticed that the Principal District
Judge, Dhule has not recommended the candidature of respondent
no.3. It is recorded by the Principal District Judge, that: "Not
recommended. Gets annoyed very often and of complaining nature.
Aggressive advocate. Average performance. Not sufficient
knowledge of civil law and not sufficient experience of civil matters."
The Interview Committee has recorded that, "Recommended on the
basis of his performance during the interview. However, it will not
be appropriate to appoint him as District Government Pleader,
because he has a lineage towards a particular political party. Some
police cases were registered against him but he has vehemently
avoided to furnish the details. This proves that he tried to conceal
the facts and vital information about the police cases registered
against him. Therefore, his integrity cannot be certified."
42 Even after adverse findings recorded by the learned
Principal District Judge as well as the Interview Committee and in
spite of availability of a meritorious candidate, the State proceeded
to appoint respondent no.3. One of the members of the High
Power Committee i.e. the Secretary, Law & Judiciary Department,
also opposed the proposal for appointment of respondent no.3.
Respondent No.3 in past, was involved in criminal cases and one of
the criminal cases, in which he was accused, the allegations are of
filthy nature. The post-appointment conduct of the respondent
no.3 is also not in consonance with the maintenance of decorum of
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the office of District Government Pleader. It is alleged by the
Superintendent of Police, District Dhule, that respondent no.3
interfered in the ongoing investigation in relation to one crime and
raised objection against the investigating officer for not proceeding
against persons belonging to Muslim community. It is alleged in
the complaint that Respondent No.3 - District Government Pleader
has communal bias against minority community, which is not
befitting to the status of District Government Pleader/Public
Prosecutor.
43 For the reasons recorded above, we are not inclined to
consider the request made by respondent no.3 for staying
operation of the judgment and order. Request is, thus, rejected.
K.L.WADANE R.M.BORDE
JUDGE JUDGE
adb/wp900016
