Bombay High Court
Machindra Ganpat Gate vs The State Of Maharashtra And Anr on 30 November, 2023
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
Digitally signed
RAMESHWAR by RAMESHWAR
LAXMAN
LAXMAN
2023:BHC-AS:36514-DB
DILWALE
DILWALE Date: 2023.12.07
18:14:38 +0200
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9766 OF 2021
Machindra Ganpat Gate }
Age : 53 years, Occupation : Advocate, }
Residing at A-5, Second Floor, }
Janta Sahakari Bank Building, Opp. S.T. Depot, }
Station Chowk, Talegaon Dabhade, Taluka Maval, }
District Pune. 410507 }
..Petitioner
Versus
1. The State of Maharashtra }
Through the Principal Secretary, }
Law and Judiciary Department }
Mantralay, Mumbai 400032. }
2. The District Government Pleader }
and Public Prosecutor }
Pune District and Sessions Court, }
Pune -411005 }
..Respondents
...
Mr. Veerdhaval Kakade for the Petitioner.
Mr. R.P. Kadam, AGP for the Respondent-State.
...
CORAM : A.S. CHANDURKAR &
FIRDOSH P. POONIWALLA, JJ
DATE : 30TH NOVEMBER, 2023.
ORAL JUDGMENT : (PER : A.S. CHANDURKAR, J)
1. Heard. The Petitioner is aggrieved by the communication
dated 15/02/2021 that has been issued by the Department of
Law and Judiciary, State Government, as a result of which the
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Petitioner's engagement as Assistant Public Prosecutor, Pune
District, has been terminated by relying upon Rule 30(5) of the
Rules for the Conduct of Legal Affairs of Government, 1984 ( for
short, the Rules of 1984).
2. The Petitioner was initially appointed as an Additional
Public Prosecutor and Assistant Government Pleader for a period
of 2 years on 07/07/2014. The Petitioner was re-appointed for a
further period of 2 years on 29/04/2017. On 26/04/2019, a fresh
order was issued extending his engagement for a period of 1
year from 29/04/2019. On the ground that the Petitioner had
moved an application for cancellation of bail without giving
instructions, the impugned communication dated 15/02/2021
has been issued and the Petitioner's engagement as Additional
Public Prosecutor and Assistant Government Pleader has been
put to an end.
3. Mr. Veerdhawal Kakade, the learned counsel for the
Petitioner submits that considering the seriousness of the matter
by which bail was granted to an accused in Sessions Case No.62
of 2018 notwithstanding the fact that bail had been refused by
this Court to a similarly placed accused, the Petitioner had
moved an application for cancellation of bail. This application
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was duly signed by the Investigating Officer. Alongwith the said
application dated 17/12/2020, various documents were annexed,
which included the order passed by this Court on 17/01/2019 in
Criminal Bail Application No.147 of 2019. By the said order, this
Court had refused to grant bail to other accused with the
observation that the case of the said accused was similar to the
case of the accused to whom bail was refused. He thus
submitted that such application was bonafide moved by the
Petitioner and that the same did not amount to any act or
conduct incompatible with his duties, as provided under Rule
30(5) of the Rules of 1984. The Petitioner's removal was thus
stigmatic. It was urged that by virtue of the order dated
28/04/2020, the Petitioner was entitled to continue with his
engagement until further orders. The impugned
communication was liable to be set aside and the Petitioner
ought to be restored on the post of Assistant Public Prosecutor
and Assistant Government Pleader.
4. Mr. R.P. Kadam, the learned Assistant Government Pleader
for the Respondents opposed the aforesaid submissions and
relied upon the Affidavit-in-Reply filed on behalf of the Deputy
Legal Advisor-cum-Deputy Secretary, Law and Judiciary
Department, State of Maharashtra. He submitted that an
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explanation was sought from the Petitioner as to whether the
application for cancellation of bail was filed on the basis of
instructions. It was admitted by the Petitioner that no such
instructions were received. He, therefore, submitted that in the
light of such conduct, the Petitioner's discontinuation by relying
upon Rule 30 (5) of the Rules of 1984 did not call for any
interference. In any event, the Petitioner's engagement was
only for a period of one year from 28/04/2019 and hence, the
Petitioner had no right to continue thereafter. Thus, it is
submitted that the Petitioner was not entitled for any relief.
5. We have heard the learned counsel for the parties at
length and with their assistance, we have also perused the
documents on record. It is to be noted that the appointment of
the Petitioner as an Additional Public Prosecutor and Assistant
Government Pleader was initially made on 07/07/2014 for a
period of two years. His engagement was thereafter extended
for specified periods and the last order dated 29/04/2020
indicates his continuation until further orders in terms of the
notification dated 26/04/2019 that was to operate for a period of
one year. This would indicate that till the Petitioner's
appointment came to be terminated on 15/02/2021, he had
been continuing on the said post by virtue of such continuation
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orders. His appointment was for a specified period which period
had come to an end.
6. The reason for terminating the Petitioner's appointment
under Rule 30(5) of the Rules of 1984 is stated to be his act of
filing an application for cancellation of bail without obtaining
prior approval and without following the procedure prescribed. It
is not in dispute that the application for cancellation of bail came
to be filed by the Petitioner without obtaining prior approval of
the competent authority. This aspect is clear from the
communication dated 05/02/2021 issued by the Petitioner
admitting the aforesaid fact. In the reply filed on behalf of the
Respondent no.1, it has been stated in clear terms that the
approval sought by the Petitioner for filing the said proceedings
was after the application for cancellation of bail was filed. Such
approval was in fact sought after the order dated 08/02/2021
was passed in Bail Application No.681 of 2020. It is thus clear
that the Petitioner filed the said proceedings without following
the prescribed procedure and ignoring the requisite protocol.
7. It is to be noted that the issue pertains to engagement of
an Assistant Government Pleader/Additional Public Prosecutor
and the matter is governed by the Rules of 1984. Under Rule
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30(5) of Rules of 1984, a Law Officer can be removed from his
office if he is guilty of any act or conduct which in the opinion of
the Government in its Law and Judiciary Department is
incompatible with his duties. Rule 30(5) of the Rules of 1984
reads as under :-
Rule 30 :
(5). A Law Officer shall be liable to be removed from
his office at any time, if he is guilty of any act or
conduct which, in the opinion of Government in the
Law and Judiciary Department, is incompatible with
his duties as such Law Officer. The decision of
Government in the Law and Judiciary Department in
such cases shall be final.
8. In the present proceedings, the Court would be concerned
with the decision making process of the Department of Law and
Justice rather than the correctness of such decision since the
matter pertains to engagement of a Law Officer. If it is found
that the decision making process preceding removal of the
Petitioner has been fairly followed and there is no arbitrariness
in the same, the same would be sufficient to sustain the decision
notwithstanding the fact that another view of the matter could
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be possible. In this regard reference can be made to the
observations in paragraph 39 of the decision in Kumari
Shrilekha Vidyarthi etc... V/s State of U.P. & Ors.,
wherein it is observed as under :
39. No doubt, it is for the person alleging
arbitrariness who has to prove it. This can be done by
showing in the first instance that the impugned State
action is uniformed by reason inasmuch as there is no
discernible principle on which it is based or it is contrary
to the prescribed mode of exercise of the power or is
unreasonable. If this is shown, then the burden is
shifted to the State to repeal the attack by disclosing the
material and reasons which led to the action being taken
in order to show that it was an informed decision which
was reasonable. If after a prima facie case of
arbitrariness is made out, the State is unable to show
that the decision is an informed action which is
reasonable, the State action must perish as arbitrary.
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9. As stated above, it is not in dispute that the Petitioner
preferred the application for cancellation of bail without seeking
prior approval of the competent Authority. This act of the
Petitioner has not found favour with the Law and Judiciary
Department on the premise that said act is not in consonance
with the Rules of 1984. The Rules require obtaining prior
approval for doing so. The Petitioner's communication dated
29/01/2021 is clear in that regard. It is also to be noted that this
Court in its order dated 20/01/2021 passed in Criminal Bail
Application No.681 of 2020 with Interim Application no.1 2020
had expressed dissatisfaction with regard to the manner of
conduct of said proceedings by filing the application for
cancellation of bail. In this background, therefore, the Law and
Judiciary Department found it fit to put an end to the Petitioner's
engagement as Law Officer. This decision cannot be stated to
be arbitrary, irrational or one that no reasonable person could
ever arrive at. It could be possible that another authority
required to take the same decision would have considered
issuing a warning to the Petitioner instead of terminating his
engagement. It would however not be permissible for this Court
to go into that aspect and substitute its view in place of the view
taken by the concerned Authority.
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10. Since we are satisfied that the decision making process
leading to issuance of the impugned communication does not
suffer from any illegality or arbitrariness, we do not find any
reason to interfere with the same. We may only observe that
considering the facts of the case where an application for
cancellation of bail was filed by the Petitioner, albeit without
prior approval, his removal shall not be treated as stigmatic so
as to preclude him from exploring other avenues and seeking
any fresh engagement.
11. For the aforesaid reasons, there is no case made out to
interfere in writ jurisdiction. The Writ Petition stands dismissed
with no order as to costs.
[ FIRDOSH P. POONIWALLA, J] [A.S. CHANDURKAR, J. ]
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