Bombay High Court
Prabhakar S/O Ganpat Gedam vs The State Of Maha., Through ... on 21 September, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
PUBLIC INTEREST LITIGATION NO.148/2016
PETITIONER: Prabhakar s/o Ganpat Gedam,
Aged about 52 years, Occ. Cultivation and
Social Worker, R/o Katlabodi, Tehsil
Korpana and Dist. Chandrapur.
...VERSUS...
RESPONDENTS: 1. The State of Maharashtra, through
its Principal Secretary Department of
Law and Judiciary Mantralaya,
Mumbai - 32.
2. The Advocate General Maharashtra,
1st Floor, Annexure Building, Bombay
High Court, Mumbai. (Deleted)
Amended/deleted as per this Hon'ble
Court's order dt. 29/9/16.
3. The Collector and District Magistrate,
Chandrapur and District Chandrapur.
4. Prashant Gajanan Ghattuwar,
Aged about 50 years, Occ. Advocate,
R/o Vithal Mandir Ward, Chandrapur.
5. Madhuri Nanaji Thuse,
Aged about 37 years, Occ. Advocate,
R/o House No.598, Gauri Talav Road,
Babupeth Ward, Chandrapur.
6. Govind Arjun Urale,
Aged about 54 years, Occ. Advocate,
R/o Near Sapna Talkies Marg, Chandrapur.
7. Milind Madhusudan Deshpande,
Aged about 56, Occ. Advocate, R/o Warora,
Tahsil Warora and Dist. Chandrapur.
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8. Asif Sattar Sheikh,
Aged about 37 years, Occ. Advocate,
R/o Arvind Nagar Mul road, Chandrapur.
9. Rajaiya Sudhakar Degawar,
Aged about 43, Occ. Advocate, R/o Near
Jai Bhim Chowk, Kannamwar Ward,
Ballarpur, Tehsil Ballarpur and Dist.
Chandrapur.
10. Sandeep Bapurao Nagpure,
Aged about 39 years, Occ. Advocate,
R/o Balaji Ward No.2, Chandrapur.
11. Swati Ashok Deshpande,
Aged about 38 years, Occ. Advocate,
R/o Ganesh Nagar, Near Ganesh Mandir,
Tukum, Chandrapur.
12. Devendra Vishwanath Mahajan,
Aged about 41 years, Occ. Advocate,
R/o Shrikrupa Colony, Jagannath Baba
nagar, Datada Road, Chandrapur.
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Shri S.O. Ahmed, Advocate for petitioner
Shri S.P. Dharmadhikari, Senior Advocate with Shri M.K. Pathan, AGP for
respondent nos.1 to 3
Shri S.Y. Deopujari, Advocate for respondent no.4
Shri N.S. Deshpande, Advocate for respondent nos.5 & 11
Shri S.V. Sirpurkar, Advocate for respondent no.6
Shri U.P. Dable, Advocate for respondent no.7
Shri S. Zia Quazi, Advocate for respondent no.8
Shri R.H. Chandurkar, Advocate for respondent no.9
--------------------------------------------------------------------------------------------------
CORAM : B.P. DHARMADHIKARI AND
ARUN D. UPADHYE, JJ.
Date of reserving the judgment : 24.08.2017
Date of pronouncing the judgment : 21.09.2017
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JUDGMENT (PER : ARUN D. UPADHYE, J.)
1. Heard. Rule. Rule made returnable forthwith. The public
interest litigation is heard finally with the consent of the learned Counsel
for the parties.
2. The petitioner has filed this public interest litigation under
Article 226 of the Constitution of India and prayed following reliefs :-
"(i) To entertain this petition as Public Interest
Litigation.
(ii) Quash and set aside the notifications dated
23/03/2016, 03/05/2016 and 10/05/2016
(Annexure-N) issued by the respondent no.1.
(ii) Direct the respondent No.1 to cancel the
appointments of the respondent No.4 to 12."
3. The present writ petition is registered as Public Interest
Litigation. The petitioner is a citizen of India and resident of Katlabodi,
Tah. Korpana, District Chandrapur. He claims to be social worker and has
no any personal interest in the subject matter of the petition.
4. Respondent no.1 is State of Maharashtra and respondent
no.3 is Collector and District Magistrate, Chandrapur. Respondent nos.5
to 12 are appointed as District Government Pleader and Public Prosecutor
and Assistant Government Pleaders and Additional Public Prosecutors of
District Chandrapur.
pil148.16.odt
5. The petitioner has submitted that on 16/9/2015, Legal
Advisor and Joint Secretary, Law and Judiciary Department, Mumbai vide
letter No.DGP-2015/CR-84/Desk-14, dated 16/3/2015 invited panel of
Advocates for appointment of candidates on the post of Public Prosecutors
and Additional Public Prosecutors from all Districts and Sessions Courts
except Mumbai area under the provisions of Order XXVII of Code of Civil
Procedure, 1908, Section 24 (3) of the Code of Criminal Procedure and
Rule 13 of the Maharashtra Law Officers (Appointment, Conditions of
Service and Remunerations) Rules, 1984 and amendment made vide
Notification dated 3/2/2015 and corrigendum to this Notification dated
13/2/2015. It is further submitted that on 17/3/2015 the respondent
no.3 - District Magistrate, Chandrapur vide letter bearing
No.MAG/KARYA-8/T-1/2015/98 sent a letter to the President of Bar
Association of the District for inviting applications for the appointment of
lawyers on the post of District Government Pleader and Public Prosecutor
and Assistant Government Pleader and Additional Public Prosecutor in the
District of Chandrapur. In the said letter the District Magistrate has
mentioned the eligibility criteria and qualification for the lawyers
applying for the said post. The proforma application form to be filled by
the candidates was uploaded on website, i.e., form - I and the copy of
proforma A-1 to be filled in by the Principal District Judge and copy of the
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proforma - A to be filled in by the District Magistrate.
6. The petitioner further submitted that respondent no.3
published list of the candidates who are eligible and who are not eligible
for the post of Public Prosecutor and Additional Public Prosecutor. It is
submitted that out of 14 candidates for one post of District Government
Pleader and Public Prosecutor three candidates were selected after
interview and out of 61 candidates for the eight posts of Additional Public
Prosecutor and Assistant Government Pleader 24 candidates were selected
after interview. The petitioner has contended that three candidates who
were selected after interview for one post of the District Government
Pleader and Public Prosecutor were (1) Advocate Ambatkar (2) Advocate
Munghate and (3) Advocate Ghattuwar. According to petitioner,
proforma A-1 which was filled in and signed by the Principal District and
Sessions Judge at Chandrapur giving details about the general reputation,
remarks about suitability for the appointment of candidate as District
Government Pleader and Public Prosecutor, experience, knowledge of
law, performance and conduct. It is submitted that it is mentioned in the
said proforma A-1 that Advocate Shri Sharadchandra Rajeshwar
Ambatkar is most suitable to be appointed as District Government Pleader
and Public Prosecutor and he was strongly recommended. As per said
proforma A-1 filled in by Principal District and Sessions Judge,
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Chandrapur it was mentioned that Advocate Shri Sanjeev Jeevanrao
Munghate is eligible to be appointed as District Government Pleader and
Public Prosecutor and he may be considered. It was also mentioned in the
said proforma that he is working as Assistant Government Pleader since
8/9/2000 having experience of 24 years working and his knowledge of
law is excellent. So far as respondent no.4 - Advocate Prashant Gajanan
Ghattuwar is concerned, it is mentioned that he has not conducted any
remarkable case in Court of Sessions and not appeared in criminal
appeals and civil appeals. It is mentioned that he is not recommended by
most of the Judicial Officers, he was not suitable and hence, he is not
recommended.
7. The petitioner has submitted that proforma-A filled in by
District Magistrate at Chandrapur giving details regarding the general
reputation, remarks about suitability for the appointment of candidate as
District Government Pleader and Public Prosecutor is concerned, it is
mentioned that reputation of Advocate Shri Sharadchandra Rajeshwar
Ambatkar is excellent. He may be considered to be appointed as District
Government Pleader and Public Prosecutor and also mentioned that
learned Principal District and Sessions Judge has recommended him. So
far as Advocate Shri Sanjeev Jeevanrao Munghate is concerned, it is
mentioned that his conduct is good and though he was recommended by
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learned District and Sessions Judge as eligible to be appointed as District
Government Pleader and Public Prosecutor and mentioned that he may be
considered but is not recommended. However, he has not given any
reason for the same. As regards Advocate Shri Prashant Gajanan
Ghattuwar, the learned District Magistrate has mentioned that he is
having excellent reputation but it is mentioned that he has not been
recommended by the learned Principal District and Sessions Judge.
However, he is strongly recommended but has not given any reason.
8. The petitioner has contended that insofar as respondent
nos.5 to 12 are concerned, the Principal District and Sessions Judge has
given report in respect of respondent no.7 that he is not recommended
but surprisingly ignoring the said fact the District Magistrate has given
opinion about respondent no.7 as strongly recommended. Respondent
no.7 was beyond age of 55 years at the time of appointment as Assistant
Government Pleader/Additional Public Prosecutor in violation of
provisions of the Maharashtra Law Officers (Appointment, Conditions of
Service and Remuneration) Rules, 1984.
9. The petitioner has also submitted that so far as respondent
no.7 is concerned, the Principal District and Sessions Judge has not
recommended his name, but the District Magistrate has strongly
recommended his name. So far as respondent no.11 is concerned, the
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Principal District and Sessions Judge has not recommended him, but the
District Magistrate has given opinion that he may be considered.
According to the petitioner, respondent nos.7, 9 and 11, who were not
recommended by the learned Principal District and Sessions Judge, came
to be selected and appointed as Assistant Government Pleader and
Additional Public Prosecutor.
10. The petitioner has also submitted that form - I which is
proforma-A to be filled in by the candidate applying for the said post the
respondent no.7 has filled in column no.11 and answered as 'yes'.
However, he has not given details of the criminal cases. In proforma - I
filled in by respondent no.4 he has mentioned in column no.8 (b) that he
appeared in 200 civil cases and conducted 750 criminal matters before
the learned Judicial Magistrate First Class and Civil Judge Junior Division,
140 civil matters and 280 criminal matters before the learned District and
Sessions Judge. However, he has not given the total number of session
cases in criminal appeals/revisions conducted before the Sessions Judge
in column no.8 (c).
11. It is further submitted that the panel for interview of the
candidates has consisted of District Magistrate and representative of
Advocate General. According to the petitioner, 20 marks were to be given
to the candidates. Out of that, ten marks were to be given by District
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Magistrate and 10 marks by the representative of the Advocate General.
According to him, on what basis the numbers were allotted to the
candidates is not mentioned by the Panel Members. It is further submitted
that the District Magistrate has forwarded his report regarding selection
of District Government Pleader and Public Prosecutor and Assistant
Government Pleader and Additional Government Pleader to the Principal
Secretary Law and Judiciary Department, Mantralaya, Mumbai. The said
report was kept before the panel of Hon'ble Law Minister, Principal
Secretary Department of Law and Judiciary, Mantralaya and Advocate
General. In view of the said report submitted by the learned District
Magistrate the respondent no.4 - Advocate Shri Prashant Ghattuwar came
to be selected and appointed as District Government Pleader and Public
Prosecutor on 3/5/2016 and five Assistant Government Pleaders and
Additional Public Prosecutors were selected and appointed by list dated
23/3/2016 and two Assistant Government Pleaders and Additional Public
Prosecutors were selected and appointed by list dated 3/5/2016 and one
candidate was selected as Assistant Government Pleader and Additional
Public Prosecutor by list dated 10/6/2016. Accordingly, in the aforesaid
manner, one District Government Pleader and Additional Government
Pleader and eight Assistant Government Pleaders and Additional Public
Prosecutors came to be appointed and selected.
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12. The petitioner has contended that appointment of
respondent no.4 and respondent nos.7, 9 and 11 has been done in total
violation of law laid down by the Hon'ble Supreme Court. The
respondents - authorities have exceeded their jurisdiction. The petitioner
has filed the present petition in the public interest for public good and not
for interest of individual and prayed for relief as sought for.
13. Respondent no.6 has filed his reply-affidavit on 14/11/2014
and submitted that no single allegation has been made against him and
therefore, public interest litigation deserves to be dismissed.
14. Respondent no.4 has filed his affidavit-in-reply on
18/12/2016 and denied the adverse allegations made against him.
According to him, challenge to the notification dated 23/3/2016 issued
by respondent no.1 appointing him as District Government Pleader and
Public Prosecutor is without any substance and liable to be rejected.
According to him, learned Principal District and Sessions Judge,
Chandrapur filled proforma A-1 on 12/10/2015. However, on what basis
and material he has mentioned recommending or not recommending the
candidate for appointment to the post of District Government Pleader is
not explained. It is further submitted that the learned Principal District
and Sessions Judge never called the respondent and asked to furnish
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details about cases handled by him. According to him, Advocate
Shri Sharadchandra Ambatkar was working as a District Government
Pleader since 21/6/2002 and therefore, his work has been considered by
the learned Principal District and Sessions Judge. According to him, he is
practicing as a private practitioner. He has also handled criminal cases in
various Courts and not got much occasion and opportunity to appear
before the learned Principal District and Sessions Judge, Chandrapur. It
appears that learned Principal District and Sessions Judge only because
this respondent did not conduct cases before him, has mentioned that he
has not conducted session trials and also criminal appeals or civil appeals.
However, he does not know opinion given by most of the Judicial
Officers. According to him, there was no material before the learned
Principal District and Sessions Judge for not recommending his name. He
further submitted that he practiced as Advocate since 1995 under the
guidance of eminent lawyer Shri T.B. Deshkar. He worked in the office of
Senior Advocate till the year 2001 and assisted in various session cases.
He started independent practice from 2001-02 and dealt with various civil
cases, revenue cases, criminal cases, consumer complaints and appeals in
School Tribunal till 2008. He was appointed as a Law Officer on contract
basis by order dated 9/6/2008 and worked w.e.f. 11/6/2008 till
20/8/2010. During that period sufficient criminal cases were conducted
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by him. He practiced as Advocate almost for 21 years. According to him,
his name was strongly recommended by District Magistrate, Chandrapur.
He is appointed as Government Pleader, Chandrapur w.e.f. 3/5/2016.
According to him, in the matter of selection apart from recommendations
of the learned District and Sessions Judge his overall performance was
found to be good by the Committee.
15. According to him, as per the provisions of Section 24 of the
Code of Criminal Procedure, the requirement of having primacy of
opinion or of the consultation with the District and Sessions Judge in the
matter of selection and appointment of District Government Pleader and
Public Prosecutor is not contemplated and the power is conferred upon
the Government under Sub-Rule (3) of Rule 13 of the Maharashtra Law
Officers (Appointment, Conditions of Service and Remuneration) Rules,
1984 to select and appoint a person from a panel of Advocates prepared
under Sub-Section (4) of Section 24 of the Code of Criminal Procedure,
1973. According to him, in the present case, the procedure is duly
followed and there is no violation of the provisions of Section 24 of the
Code of Criminal Procedure and the Rules framed for selection and
appointment of this respondent to the post of District Government Pleader
and Public Prosecutor. It is further submitted that the petitioner has failed
to show that the appointment of this respondent is political appointment
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as alleged by him. No case is made out by the petitioner for quashing and
setting aside the appointment of this respondent. Lastly, he submitted
that the public interest litigation be dismissed.
16. Respondent no.7 has filed affidavit-in-reply and denied all
the adverse allegations made against him in the petition. It is submitted
that the petitioner has nothing to do with the legal profession and he has
no locus standi to assail the impugned notification. It is submitted that
though allegations are made in the petition that appointments are
political but the same are not substantiated by the petitioner. He,
therefore, submitted that the public interest litigation is liable to be
dismissed and the same may be dismissed.
17. It is submitted that as per the amended provisions of
Section 24 of the Code of Criminal Procedure and amended Rule 13 of
the Maharashtra Law Officers (Appointment, Conditions of Service and
Remunerations) Rules, 1984, the consultation of the Sessions Judge is no
more requirement for appointment of Assistant Government Pleader. It is
submitted that he had applied for the post of Assistant Government
Pleader. At the time of petition, he was 54 years old and his date of birth
is 1/12/1960. He also mentioned in column no.11 that one criminal case
was pending against him but he has not given the details of the same.
According to him, said case was bearing Crime No.73/2008 under
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Sections 143, 341 of Indian Penal Code read with 135 of the Bombay
Police Act. The said case was not pertaining to moral turpitude and no
serious offences were alleged against him and the said case was of a
public agitation. He also submitted that he appeared in the interview and
after finding his performance satisfactory, he was recommended by the
panel of the Advocates for the post of Assistant Government Pleader.
According to him, he has not suppressed any material facts at the time of
submitting application and nobody was knowing as to when the
appointments would be done. According to him, criteria of 55 years of age
would be for applying to the post of Assistant Government Pleader and
lastly it is submitted that the public interest litigation be dismissed.
18. Respondent no.8 has filed his reply-affidavit and denied all
the adverse allegations made against him in the petition. It is submitted
that by virtue of amended provisions of Section 24 (4) of the Code of
Criminal Procedure, the first requirement is that the District Magistrate
shall prepare a panel of the names of the persons who are in his opinion
fit to be appointed as Public Prosecutor or Additional Public Prosecutor
for the Districts. The second requirement is that the said panel of names
of the persons shall be prepared with the approval of the State
Government. In the instant case, both these requirements are fulfilled and
therefore the appointments are made strictly in accordance with the
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provisions of law. According to him, he is strongly recommended even by
the Sessions Judge and lastly, it is submitted that the public interest
litigation be dismissed.
19. Respondent no.9 has filed her affidavit-in-reply and opposed
the public interest litigation. It is submitted that the present public
interest litigation filed by the petitioner is nothing but abuse of process of
law and therefore, the same is liable to be dismissed. According to her,
the appointments are made strictly in accordance with the provisions of
Section 24 of the Code of Criminal Procedure and provisions of the
Maharashtra Law Officers (Appointment, Conditions of Service and
Remuneration) Rules, 1984 and amended by notification dated 3/2/2015
and corrigendum dated 13/2/2015. Lastly, it is submitted that the present
public interest litigation deserves to be dismissed.
20. Respondent no.11 has filed her affidavit-in-reply and
objected the claim of the petitioner. According to her, the appointments
are made strictly in accordance with law. She further submitted that she
was not recommended by the Sessions Judge but said recommendation is
of no avail and lastly, it is submitted that the public interest litigation be
dismissed.
21. Respondent no.5 has filed her affidavit-in-reply and
submitted that she was recommended by the Sessions Judge (may be
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considered) but said recommendation is of no avail. It is submitted that
she was strongly recommended by the District Magistrate for the post of
Assistant Government Pleader and therefore, the public interest litigation
be dismissed.
22. Respondent no.1 has filed affidavit-in-reply through Joint
Secretary Law and Judiciary Department, Nagpur. In the said reply-
affidavit it is submitted that in the present petition the public interest is
not involved, the petitioner has no locus standi and the same is liable to be
dismissed. It is submitted that the respondent no.4 was appointed for the
post of District Government Pleader and Public Prosecutor and
respondent nos.5 to 12 were appointed for the post of Assistant
Government Pleader and Additional Public Prosecutor. It is further
submitted that their appointments are transparent and following the legal
procedure. Though allegations are made in the petition that the said
appointments are political, wild and reckless, but no single instance has
been cited to substantiate the same and therefore, the present public
interest litigation deserves to be dismissed. It is submitted that on a
combined reading of Section 24 (4) of the Code of Criminal Procedure
read with Rule 13 of the Maharashtra Law Officers (Appointment,
Conditions of Service and Remuneration) Rules, 1984, it is amply clear
that for the appointment of District Government Pleader and Public
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Prosecutor and Assistant Government Pleader and Additional Public
Prosecutor, consultation or opinion of learned District and Sessions Judge
is not necessary. It is further submitted that the Committee has
interviewed the candidates and thereafter respondent nos.4 to 12 were
included in the said list prepared by learned District Magistrate. These
respondents were appointed thereafter by the State Government. Hence,
the public interest litigation is liable to be dismissed.
23. We have heard respective Counsel for the parties.
24. Learned Counsel Shri S.O. Ahmed for the petitioner has
restricted his arguments to the extent of respondent nos.4, 7, 9 and 11
only. The learned Counsel has submitted that the appointments of these
respondents are illegal and not in accordance with law. He further
submitted that respondent no.4 is appointed as Government Pleader and
Public Prosecutor of District Chandrapur though the learned Principal
District and Sessions Judge, Chandrapur has not recommended his name.
He relied upon proforma A-1 written by Principal District and Sessions
Judge, Chandrapur. According to him, the learned District and Sessions
Judge has written that he has not conducted any remarkable case in Court
of Sessions nor he appeared in criminal appeals or civil appeals. He sent
opinion that he is not recommended by most of the Judicial Officers. He
further submitted that respondent no.7 - Milind Deshpande is also not
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recommended by the learned Sessions Judge. In the proforma A-1 it is
mentioned that he is not suitable and not recommended. He further
submitted that insofar as respondent no.9 - Rajaiya Degawar is
concerned, the learned Sessions Judge has not recommended her name
and mentioned in proforma - A-1 that she is not suitable and not
recommended. He further submitted that insofar as respondent no.11 -
Swati Deshpande is concerned, it is mentioned in proforma A-1 that she is
not suitable and not recommended.
25. It is further submitted that the District Magistrate has not
considered the opinion of the Principal District and Sessions Judge and
wrongly recommended the names of these persons. According to him, so
far as respondent no.7 is concerned, on the date of his appointment he
was beyond 55 years and therefore, his appointment is illegal. He further
submitted that the Committee who conducted the interview of the
candidates has not assessed the performance of the candidates and
wrongly allotted the marks. Lastly, he submitted that the public interest
litigation be allowed.
26. Shri S.P. Dharmadhikari, learned Senior Counsel along with
Shri M.K. Pathan, learned Assistant Government Pleader has submitted
that the appointments of the respondent no.4 to 12 made by the State
Government are in accordance with the provisions of Section 24 (4) of the
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Code of Criminal Procedure and Rule 13 of the Maharashtra Law Officers
(Appointment, Conditions of Service and Remuneration) Rules, 1984. The
petitioner has failed to make out the case for cancellation of notification
in question and therefore, the public interest litigation be dismissed.
27. The learned Counsel for respondent no.4 has submitted that
consultation of Principal District and Sessions Judge is not required after
amendment of Section 24 (4) of the Code of Criminal Procedure as well
as Rule 13 of the Maharashtra Law Officers (Appointment, Conditions of
Service and Remuneration) Rules, 1984. He further submitted that the
District and Sessions Judge has mentioned in column no.v to viii of
proforma A-1 as "good", however, in remark column it is stated "not
suitable" and "not recommended". The remark is therefore contrary to
column no.v to viii of clause - 3. It further submitted that this respondent
no.4 has worked as Law Officer in S.P. Office, Chandrapur and also
worked as private practitioner since 1995. He therefore submitted that no
importance be given to the opinion of the learned District and Sessions
Judge. He also submitted that the fact that he has not worked before the
Sessions Judge does not mean that he is not suitable for the said post.
28. Shri U.P. Dable, the learned Counsel for the respondent
no.7- Milind Deshpande has submitted that the recommendation of the
Sessions Judge is not required after amendment to Section 24 (4) of the
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Code of Criminal Procedure as well as Rule 13 of the Maharashtra Law
Officers (Appointment, Conditions of Service and Remuneration) Rules,
1984. According to him, the learned Sessions Judge in proforma A-1
column no.v to viii has mentioned that his performance and knowledge is
good and he is having 24 years experience but there is no experience in
session cases and in remark column he mentioned "not suitable" and "not
recommended". He also submitted that the remark is contrary to his own
report. It is further submitted that in the application in column no.11 he
has replied as 'yes' but has not given details of the crime. He further
submitted that Crime No.73/2008 was under Sections 143 and 341 of
Indian Penal Code and Section 135 of the Bombay Police Act and same is
not pertaining to any moral turpitude and no serious offence is alleged
and therefore nothing is wrong in his appointment. It is further submitted
that at the time of submitting application he was below 55 years and
therefore there is no illegality in the appointment. He therefore submitted
that the public interest litigation be dismissed.
29. Shri R.H. Chandurkar, the learned Counsel for the
respondent no.9 - Rajaiya Degawar has submitted that the learned
Sessions Judge has given remark in proforma A-1 that she is not suitable
and not recommended. However, in column no.v to viii it is mentioned
that her knowledge, performance and conduct is good and having ten
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years experience but she has not conducted any matter in the Sessions
Court. He further submitted that as per amended provision to Section 24
(4) of the Code of Criminal Procedure recommendation of Sessions Court
is not necessary and therefore her name is strongly recommended by the
District Magistrate after interview and included in the panel.
30. Shri N.S. Deshpande, the learned Counsel for the
respondent no.11 - Swati Deshpande has submitted that the learned
Sessions Judge has given remark in proforma A-1 that she is not suitable
and not recommended. However, in column no.v to viii it is mentioned
that her knowledge, performance and conduct is good and having
thirteen years experience but not conducted any matter in the Sessions
Court. He further submitted that as per amended provision to Section 24
(4) of the Code of Criminal Procedure recommendation of Sessions Court
is not necessary and therefore, her name is strongly recommended by the
District Magistrate after interview and included in the panel.
31. We have considered the pleadings of the respective parties
and gone through the documents placed on record. Though petitioner has
challenged appointments of respondent no.4 to 12, however, he restricted
his prayer so far as respondent nos.4, 7, 9 and 11 only. We are therefore
considering the case against these respondents only. The impugned
notification appointing other respondents is not required to be
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considered.
32. It appears that the Legal Advisor and Joint Secretary, Law
and Judiciary Department, Mantralaya, Mumbai vide his letter dated
16/3/2015 bearing No.DGP-2015/P.K.84/Ka-14, Law and Judiciary
Department, invited panel of Advocates for appointment of the candidates
for post of Public Prosecutor and Additional Public Prosecutor from all
Districts of Sessions Court except Mumbai City and Mumbai Suburban
area. On the basis of the said letter District Magistrate, Chandrapur has
given notice on 17/3/2015 vide letter bearing No.MAG/Karya-
8/T.1/2015/98 and invited applications for appointment of lawyers on
the post of District Government Pleader and Public Prosecutor and
Assistant Government Pleader and Additional Public Prosecutor.
Respondent no.3 published list of candidates who are eligible and who
are not eligible for the post of Public Prosecutor and Additional Public
Prosecutor. It further appears that out of 14 candidates for one post of
District Government Pleader and Public Prosecutor three candidates were
selected after interview and out of 61 candidates for the eight posts of
Additional Public Prosecutor and Assistant Government Pleader 24 were
selected after interview. Learned District Magistrate after obtaining
consultation/opinion from the Principal District and Sessions Judge
forwarded his report regarding selection of District Government Pleader
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and Public Prosecutor and Assistant Government Pleader and Additional
Public Prosecutor to the Principal Secretary, Law and Judiciary
Department, Mantralaya, Mumbai. Thereafter, the Government
considered said report and appointed respondent no.4 - Prashant
Ghattuwar as District Government Pleader and Public Prosecutor on
3/5/2014 and five Assistant Government Pleaders and Additional Public
Prosecutors were appointed on 23/3/2016 and two Assistant Government
Pleaders and Additional Public Prosecutor were appointed on 3/5/2016
and one Assistant Government Pleader was appointed on 10/6/2016.
33. The petitioner has challenged the said notification by way of
filing public interest litigation. The petitioner has come with a case that
the appointments of respondent nos.4, 7, 9 and 11 are not in accordance
with law and therefore, prayed for quashing and setting aside the
notification (Annexure-I) issued by respondent no.1. The respondent no.1
- State as well as the contesting respondents have strongly opposed the
petition by filing their replies-affidavit. They contended that consultation
of Principal District and Sessions Judge is not necessary as per amended
provisions of Section 24 (4) of the Code of Criminal Procedure and
Rule 13 of the Maharashtra Law Officers (Appointment, Conditions of
Service and Remuneration) Rules, 1984. They also submitted that
Principal District and Sessions Judge has given report in favour of
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respondent nos.4, 7, 9 and 11 in column no.v to viii. However, in column
no.3 it is written "not suitable" and "not recommended". It is submitted
that there was no material before the Principal District and Sessions
Judge for giving such a report. Mere fact that these respondents have not
appeared before the Principal District and Sessions Judge or before the
Sessions Court does not mean that they are not fit for appointment on the
post of District Government Pleader and Public Prosecutor as well as
Assistant Government Pleader and Additional Public Prosecutor.
34. The relevant amended provisions of Section 24 (4) of the
Code of Criminal Procedure, Rule 13 of the Maharashtra Law Officers
(Appointment, Conditions of Service and Remuneration) Rules, 1984 and
Notification dated 3/2/2015 issued by Law and Judiciary Department are
reproduced as under :-
"Section 24 (4) of the Code of Criminal Procedure :-
The District Magistrate shall, "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 Prosecutors or
Additional Public Prosecutors for the district."
Rule 13 of the Maharashtra Law Officers
(Appointment, Conditions of Service and Remuneration)
Rules, 1984 :- Appointment .- (1) Every Government Pleader
referred to in clause (j) of rule 2, or Public Prosecutor or
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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) ...
(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.
(5) ...
(6) ...
rd
NOTIFICATION, dated the 3 February, 2015 : -
Constitution of India.
pil148.16.odt
No. Sankirna-5915/(27)/D-14.- In exercise of the
powers conferred by the proviso to article 309 read with article
165 of the Constitution of India, the Governor of Maharashtra
is hereby pleased to make the rules further to amend the
Maharashtra Law Officers (Appointment, Conditions of Service
and Remuneration) Rules, 1984, as follows, namely :-
1. ...
2. ...
(i) ...
(ii) ...
(a) ...
(b) ...
(c) ...
(iii) ...
(2A) To facilitate the selection of a suitable candidate
as the Government Pleader or Additional or Assistant
Government Pleader or Honorary Assistant to the Government
Pleader and Special Government Pleader and Additional
Special Government Pleader mentioned in sub-rule (2), the
Committee mentioned in column (2) against the posts
mentioned in column (1) below Table, 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 the appointments.
Table
-----------------------------------------------------------------------------------
Sr. Posts Committee for conducting interviews
No.
(1) (2) (3)
------------------------------------------------------------------------------------------
1. Government Pleaders in the .. (i) Advocate General ; and
High Court at Bombay and its (ii) Principal Secretary and
Benches at Nagpur and Remembrancer of Legal
Aurangabad. Affairs, Law and
Judiciary Department,
Government of
Maharashtra;
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2. Government Pleaders and .. (i) the person nominated
Additional or Assistant by Advocate General;
Government Pleaders for City and
Civil Court, Bombay and (ii) the Collector, Mumbai
Government Pleader, Court City ;
of Small Causes at Mumbai.
......."
35. On a plain reading of the said provisions we are of the
considered view that consultation/opinion of Principal District and
Sessions Judge is not required for filling the post of District Government
Pleader and Public Prosecutor and Assistant Government Pleader and
Additional Government Pleader. Even if the consultation is obtained by
the District Magistrate as per the direction given by Legal Advisor and
Joint Secretary Law and Judiciary Department, the same is not binding
upon the District Magistrate as well as Government. Moreover, the
remarks given by the Principal District and Sessions Judge are also not
adverse against these respondent nos.4, 7, 9 and 11. The fact that they
were not recommended by the Principal District and Sessions Judge does
not come in their way for the appointment. It is to be noted that the State
Government has followed the procedure laid down for the selection of
lawyers for the panel. The District Magistrate and one member appointed
by Advocate General on his behalf has taken interview of the eligible
candidates and thereafter panel was prepared and the Government has
selected them for the post of District Government Pleader and Public
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Prosecutor as well as Assistant Government Pleader and Additional Public
Prosecutor. It is to be noted that rival candidates who were interviewed
and not selected have not approached the Court and challenged the
appointments. The petitioner is not concerned with legal profession,
however, he has filed this public interest litigation, nevertheless his
petition was considered by this Court and after completion of pleadings of
the parties the matter came up for final disposal.
36. The petitioner has also made grievance against respondent
no.7. According to him, the respondent no.7 in column no.11 of his
application has mentioned that criminal case was pending but no details
were given. The respondent no.7 has filed affidavit-in-reply and answered
the said allegation made against him. Respondent no.7 has clearly
mentioned that said case was bearing Crime No.73/2008 under
Sections 143, 341 of the Indian Penal Code, read with Section 135 of the
Bombay Police Act. The said case is not pertaining to any moral turpitude
and no serious offence was alleged against him. In view of that the State
Government has considered the said fact and appointed him as Assistant
Government Pleader and Additional Public Prosecutor and therefore, his
grievance cannot be considered. It is also pointed out that respondent
no.7 was more than 55 years of age at the time of appointment and
therefore, his appointment was illegal. Respondent no.7 in his affidavit-
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in-reply has stated that he has not suppressed any material facts at the
time of submitting application and nobody was knowing as to when the
appointments would be done and the criteria of 55 years of age would be
for applying to the post of Assistant Government Pleader and at the time
of appointment of Assistant Government Pleader the allegations made
against him are therefore baseless. The Government has considered his
application and thereafter he was appointed. It appears that, at the time
of appointment and publishing notification he was beyond 55 years. This
fact was known to the Government. Hence, the grievance of the petitioner
therefore cannot be considered.
37. The learned Counsel for the petitioner has relied upon the
Rulings.
(i) 2014 (1) Mh.L.J., 474 (Suresh Shamrao
Kamble...Versus...State of Maharashtra and others).
(ii) 2005 (4) Mh.L.J. 326 (Neelima Sadanand
Vartak...Versus...State of Maharashtra and others).
(iii) (2004) 4 Supreme Court Cases 714 (State of U.P.
and another...Versus...Johri Mal).
(iv) (2016) 6 SCC 1 (State of Punjab and
another...Versus...Brijeshwar Singh Chahal and another)
(v) Judgment delivered at Aurangabad Bench in Writ
Petition No.9000/2016 on 6/6/2017.
The respondents also relied upon the judgments passed by
this Court in Public Interest Litigation No.157/2016 dated 17/11/2016,
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Public Interest Litigation No.124/2015 on 9/3/2017 and judgment in
Writ Petition No.1507/2009 at Aurangabad Bench on 17/7/2009.
38. We have perused the above judgments referred to by the
respective parties. The judgment relied upon by the respondent - State,
i.e., Aurangabad Bench in Writ Petition No.1507/2009 decided on
17/7/2009 is squarely applicable to the case in hand. Admittedly, there is
no challenge to 1981 Amendment made to Section 24 of the Code of
Criminal Procedure in the State of Maharashtra. Though several
judgments have been cited, the judgment of Division Bench of this Court,
specifically considering the impact of that amendment, has not been
demonstrated to be either erroneous or perverse. In the said judgment
dated 17.07.2009 the Division Bench of this Court, in Vilas Jagannath
Dhorde Patil ...Versus... State of Maharashtra - Writ Petition No.1507
of 2009 decided by a Division Bench of the Bombay High Court, Bench at
Aurangabad (Coram: P.V. Hardas and R.K. Deshpande, JJ.), has observed
that power to select suitable candidate from the panel of Advocates,
prepared under Rule 13(4) read with Section 24(4) of the Code of
Criminal Procedure, is of the State Government and it cannot be curtailed
either by the District Magistrate or by High Power Committee. It cannot
also be affected by the recommendations of the District and Sessions
Judge. The discussion contained in paras 17 & 19 therein is sufficient for
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us to conclude that in the absence of any express negative remark by the
District & Sessions Judge, the State Government is free to judge suitability
of enlisted candidates and to appoint them as per its choice.
The petitioner has not challenged Rules or the selection
process. He also does not urge any bias or mala fides. He is not an
advocate who participated in the selection process. Taking overall view of
the matter, we do not find any harm or injury to general public interest in
the matter. We find that the above mentioned judgment delivered at
Aurangabad squarely clinches the controversy.
39. In the case of State of U.P. and another...Versus...Johri
Mal (supra), the Hon'ble Supreme Court held that appointment of Public
Prosecutor and District Government Counsel is in the nature of a
professional engagement, governed by the provisions of Code of Criminal
Procedure and relevant executive instructions but does not amount to
appointment to a civil post. The Public Prosecutors are appointed for
specific period not for permanent. They are representatives of
Government. Thus, they represent the interest of the general public before
a court of law. In the matter of engagement of District Government
Counsel, however, a concept of public office does not come into play.
They are not treated as public officers. They cannot claim as right to
appoint. The right of appointment of Public Prosecutor is in the hand of
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Government.
In the case of State of Punjab and
another...Versus...Brijeshwar Singh Chahal and another (supra), the
Hon'ble Supreme Court held that it is right and choice of State
Government to appoint law officer. But State Government must consider
and follow fairness and transparency in selection process for
appointment.
40. In the case of Mahadeo Ramkisan Andhale...Versus...State
of Maharashtra and others, reported at (2014) 1 Mh.L.J. 592, the
Hon'ble Supreme Court held that State Government can choose and select
its law officers such as Public Prosecutors and issue order accordingly.
They are appointed for particular period. Granting extension on specific
period, State Government has right to decide. The law officer cannot be
equated with civil post. It is stand of the State that as these posts are not
civil post, they have no constitutional obligation to provide reservation.
41. In the case of Kumari Shrilekha Vidyarthi and
others...Versus...State of U.P. and others, reported at (1991) 1 SCC
212, the Hon'ble Supreme Court held that power of Public Prosecutor
must be exercised in the interest of administration of justice and relates to
public purpose, therefore, Public Prosecutor is thus holder of public office.
They can continue their services. In U.P. Legal Remembrance's Manual it
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clearly shows that the Government Counsel in the Districts are treated as
Law Officer of the State who are holders of an "office" or "post". It is
further held that the procedures of appointment, reappointment and
renewal of Public Prosecutor are given under U.P. Legal Remembrance's
Manual. Therefore, the Government cannot terminate the Public
Prosecutor without following the procedure of Manual. If Government
does not follow the procedure as per Manual or exercise the power
arbitrarily, then it is violation of Article 14 of Constitution of India.
42. In the case of State of Uttar Pradesh and
others...Versus...Ajay Kumar Sharma and another, reported at (2016)
15 SCC 289, it is held by the Hon'ble Supreme Court that discretion
should be exercised by State on being satisfied about competence and
integrity of advocates considered for appointment of Public Prosecutor, so
that justice is meted out to all citizens. These appointments, being in
nature of professional engagement, do not create in appointees right of
continuity, reappointment, renewal or extension. Court Should be
circumspect in exercise of judicial review in such matter.
43. After considering the material placed on record and after
considering the legal provisions, we are of the considered view that the
challenge to the "notifications" is without substance.
pil148.16.odt
44. The appointments are made as per the provisions of law. As
per the amended provisions of Section 24 (4) of the Code of Criminal
Procedure and Sub Rule (4) of Rule 13 of the Maharashtra Law Officers
(Appointment, Conditions of Service and Remuneration) Rules, 1984, the
appointments are made. As per amended provisions, consultation of
Sessions Judge is not requirement as said words are deleted and the
words "with the approval of State Government" are added. We therefore,
do not find any merit in this public interest litigation.
The public interest litigation is therefore dismissed. Rule
stands discharged. No costs.
JUDGE JUDGE
Wadkar
