Gauhati High Court

Page No.# 1/9 vs The State Of Assam And 10 Ors on 2 June, 2022

                                                                Page No.# 1/9

GAHC010014912022




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/486/2022

         SAHJAHAN SHEIKH AND 8 ORS
         S/O- KAMARUZZAMAN SHEIKH, VILL AND P.O- FULERCHAR, P.S- SOUTH
         SALMARA

         2: HUMA UN RASHID
          S/O- ABDUL GOFUR

         VILL AND P.O- FEKAMARI

         P.S- SOUTH SALMARA
          DIST- SOUTH SALMARA
          MANKACHAR
         ASSAM

         3: LUCKY MIAH
          S/O- MOSAROFF HUSSAIN
         VILL- JHOGRARCHAR P.O- KAKRIPARA
          P.S- MANKACHAR
         DIST- SOUTH SALMARA
          MANKACHAR
         ASSAM

         4: MOINUL ISLAM
          S/O- ABDUL REZZAK
         VILL- THAKURANBARI P.O- KAKRIPARA
          P.S- MANKACHAR
         DIST- SOUTH SALMARA
          MANKACHAR
         ASSAM

         5: SAKOWAT HUSSAIN
          S/O- ABDUL GONI
          VILL- JHAWDANGA NOYAGAON
         P.O-JHAWDANGA
                                                   Page No.# 2/9

P.S- MANKACHAR
DIST- SOUTH SALMARA
MANKACHAR
ASSAM

6: MONWAR HUSSAIN
 S/O- JOYNAL ABEDIN
VILL- BANGTIMARI
 P.O- DHANUA
 P.S- MANKACHAR
DIST- SOUTH SALMARA
 MANKACHAR
ASSAM

7: NAZMUL HUSSAIN
 S/O- ROFIQUL HOQUE
VILL- THAKURANBARII
 P.O- KAKRIPARA
 P.S- MANKACHAR
DIST- SOUTH SALMARA
 MANKACHAR
ASSAM

8: UMME KULSUM BEGUM
W/O- AKHTER HUSSAIN
VILL- PECHARKANDI
 P.O MANULLAPARA
 P.S- SOUTH SALMARA
DIST- SOUTH SALMARA
 MANKACHAR
ASSA

VERSUS

THE STATE OF ASSAM AND 10 ORS
THROUGH THE LEGAL REMEMBRANCER AND SECRETARY JUDICIAL
DEPARTMENT, ASSAM, DISPUR, GUWAHATI-781006

2:THE DISTRICT MAGISTRATE
 DIST- SOUTH SALMARA
 MANKACHAR
 HATSINGIMARI
 PIN-783136
ASSAM

3:THE DISTRICT AND SESSIONS JUDGE
 DIST- SOUTH SALMARA
 MANKACHAR
                                  Page No.# 3/9

HATSINGIMARI
(FEKAMARI)
PIN-783135ASSAM

4:HATSINGIMARI BAR ASSOCIATION
 REP BY ITS SECRETARY
 DIST- SOUTH SALMARA
 MANKACHAR
 HATSINGIMARI
 PIN-783136
ASSAM

5:THE EXECUTIVE COMMITTEE
 REP BY ITS PRESIDENT
 HATSINGIMARI BAR ASSOCIATION
 DIST- SOUTH SALMARA
 MANKACHAR
 HATSINGIMARI
 PIN-783136
ASSAM

6:A.S.M JAHANGIR
 PRESIDENT
 HATSINGIMARI BAR ASSOCIATION
 DIST- SOUTH SALMARA
 MANKACHAR
 HATSINGIMARI
 PIN-783136
ASSAM

7:ROFIQUL ISLAM
 SECRETARY
 HATSINGIMARI BAR ASSOCIATION
 DIST- SOUTH SALMARA
 MANKACHAR
 HATSINGIMARI
 PIN-783136
ASSAM

8:MONJIRUL HASHAN ADVOCATE
VILL- MOYNABANDHA
 P.O- FEKAMARI
 P.S- SOUTH SALMARA
 DIST- SOUTH SALMARA
 MANKACHAR
ASSAM
 PIN- 783135
                                                                         Page No.# 4/9

            9:ASHRAFUZZAMAN SK
            ADVOCATE
            VILL- DAYARCHAR
             P.O- FEKAMARI
             P.S- SOUTH SALMARA
             DIST- SOUTH SALMARA
             MANKACHAR
            ASSAM
             PIN- 783135

            10:BOKHTIAR HUSSAIN
            ASSTT. GOVT. PLEADER COURT OF
            SUB- DIVISIONAL JUDICIAL MAGISTRATE

            DIST- SOUTH SALMARA
            MANKACHAR
            HATSINGIMARI
            ASSAM
            PIN- 783136

            11:LAXMI KUTUM
            ADDL. DISTRICT MAGISTRATE
             DIST- SOUTH SALMARA
             MANKACHAR
             HATSINGIMARI
            ASSAM
             PIN- 78313

Advocate for the Petitioner   : MR. S DUTTA

Advocate for the Respondent : GA, ASSAM

-B E F O R E-

HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

02.06.2022

1. Heard Mr. B.C. Das, learned senior counsel assisted by Ms. I. Das, learned counsel for the petitioners. Also heard Mr. D. Mozumder, learned Additional Advocate General, Assam assisted by Mr. D. Nath, learned senior Government Advocate, Assam for the respondent Nos. 1,2 and 3; Mr. M. Islam, learned counsel for the respondent Page No.# 5/9

Nos. 4 to 7 and Mr. M. Ahmed, learned counsel for the respondent Nos. 8 to 10.

2. The petitioners herein have approached this Court, being aggrieved by non- inclusion of their names in the list forwarded by the District Magistrate, South Salmara Mankachar District (respondent No.2) to the Government of Assam, for appointment as Government Pleaders/ Public Prosecutors etc. for the district of South Salmara Mankachar District.

3. Mr. B.C. Das, learned senior counsel for the petitioners submits that the mandate of Section 24 Cr.P.C. has not been followed, inasmuch as, there has been no effective consultation between the respondent Nos. 2 and 3, before the list containing the panel of names of Advocates for appointment as Government Pleaders/ Public Prosecutors etc. was forwarded by the respondent No.2 to the State Government, vide letter dated 29.12.2021 issued by the respondent No.2.

4. The petitioners' counsel submits that in terms of the judgment of this Court in the case of Jyotirmoy Das & Ors. -vs- State of Assam & Ors., reported in 2021 (3) GLT 579 and the judgments of the Apex Court in the case of Kumari Shrilekha Vidyarthi & Ors. -vs- State of U.P. & Ors., reported in (1991) 1 SCC 212; State of U.P. & Anr. -vs- Johri Mal, reported in (2004) 4 SCC 714; and State of Punjab & Anr. -vs- Brijeshwar Singh Chahal & Anr., reported in (2016) 6 SCC 1, there has to be an effective consultation between the respondent Nos. 2 and 3, prior to appointing Government Pleaders/ Public Prosecutors etc. by the State Government.

5. Mr. D. Mozumder, learned Additional Advocate General, Assam, on the other hand, submits that the grievance of the petitioners is basically against the President and Secretary of the Hatsingimari Bar Association, as their names are not included in the list prepared by the Bar Association for consideration for appointment as Government Pleaders/ Public Prosecutors etc., in pursuance to the request made by Page No.# 6/9

the District Magistrate, South Salmara Mankachar District, to provide him the list of names for consideration for appointment as Government Pleaders/ Public Prosecutors etc. He submits that the petitioners do not have any indefeasible right to be appointed to such posts, which are contractual in nature. He also submits that no final decision has been taken by the State Government, as to who should be appointed as Government Pleaders/ Public Prosecutors etc. for the district of South Salmara Mankachar.

6. I have heard the learned counsels for the parties.

7. For a better understanding of the facts, Paragraph Nos. 3 to 7 of the writ petition are reproduced below:

"3. That the Govt. of Assam in Judicial Department issued a Letter vide No.JDJ.151/2021/16 dated 23rd November, 2021 addressed to the District Magistrate, South Salmara Mankachar District, Hatsingimari, Assam to submit a Panel of names of advocates on 1:3 basis for appointment in the post of Public Prosecutor-1 post, Addl. Public Prosecutors-3 posts, Asstt. Public Prosecutors-4 posts, Govt. Pleader-1 post, Asstt. Govt. Pleader-2 posts under the District & Sessions Judge's Court and other subordinate Courts at Hatsingimari (Fekamari) under South Salmara Mankachar District.

A Xerox copy of the said letter dated 23 rd November, 2021 is annexed hereto and marked as Annexure-I.

4. That the District Magistrate, South Salmara Mankachar District, Hatsingimari accordingly issued a letter vide No. HAA-10/2021/Judicial Deptt/02 dated 14 th December, 2021 and directed the President/Secretary of Hatsingimari Bar Association, South Salmara Mankachar District, Hatsingimari to submit a Panel of Advocates on 1:5 basis from amongst the practicing members thereof for the above purpose. Accordingly, the President/Secretary of Hatsingimari Bar Association called for applications with bio-data from all the interested practicing members and advocates under the said Bar Association.

A Xerox copy of the said letter dated 14 th December, 2021 is annexed hereto and marked as Annexure-II.

5. That thereafter the Petitioners, among others, applied for the post of Govt.

Page No.# 7/9

Pleader, Addl. Govt. Pleader, Public Prosecutor, Addl. Public Prosecutor and Asstt. Public Prosecutor and submitted bio-data as required.

6. That upon submission of applications with bio-data, the President/Secretary of Hatsingimari Bar Association arbitrarily prepared and submitted vide Memo No. HBA.2021/25 dated 21.12.2021 a Panel of names of advocates to the District Magistrate without following properly any norms or order of age, seniority or length of practice or other criteria as prescribed by the Government.

A Xerox copy of the said Panel of names of advocates submitted vide Memo No. HBA.2021/25 dated 21.12.2021 by the President/ Secretary of Hatsingimari Bar Association is annexed hereto and marked as Annexure-III.

7. That the aforesaid panel was drawn by the respondents no.6/7 with mala fide intention by way of application of sheer personal whims and fancy causing serious discriminations against a given section of applicant-advocates and showing nepotism and favouritism towards the other section of applicant-advocates and thereby deprived the Petitioners and many others from participating in the recruitment process for appointment to the respective post applied for by them.".

8. A reading of Paragraph Nos. 3 to 7 of the writ petition goes to show that the Government of Assam had requested the District Magistrate to submit a panel of names of Advocates, for appointment to the posts of Public Prosecutors, Additional Public Prosecutors, Assistant Public Prosecutors, Government Pleaders and Assistant Government Pleaders. The District Magistrate, thereafter, requested the Hatsingimari Bar Association to submit a panel of names of Advocates in terms of the letter issued by the State Government. The petitioners applied for the above posts along with others. However, the names of the petitioners were not included in the list prepared by the Hatsingimari Bar Association, which was forwarded to the Deputy Commissioner, South Salmara Mankachar District vide letter dated 21.12.2021.

9. Paragraph Nos. 8 and 9 of the writ petition are basically to the effect that the Hatsingimari Bar Association had forwarded a list of Advocates to the District Magistrate for empanelment as Public Prosecutors/Government Pleaders etc., without taking into account the length of practice of Advocates and instead included Advocates Page No.# 8/9

who had lesser years of practice. The petitioners' names did not figure in the said list.

10. The respondent No.2 thereafter submitted a list of Advocates for appointment of Public Prosecutors/Government Pleaders etc., after having consultation with the District & Sessions Judge, vide letter dated 29.12.2021. The letter dated 29.12.2021 issued by the District Magistrate is reproduced as follows:

"Sub: Submission of panel of names of Advocates for appointment of Public Prosecutor, Additional Public prosecutor, Assistant Public Prosecutor, Government Pleader and Assistant Government Pleader for South Salmara Mankachar District.

Ref:- Your letter No.JDJ.151/2021/16 dated 23rd November, 2021. Sir, With reference to the letter No. JDJ.151/2021/16 received from L.A. to L.R & under Secretary to the Government of Assam, Judicial Department, Dispur, I am submitting herewith the panel of names of Advocates indicating their age, educational qualification, address and length of practice, in the ratio of 1:3 against each court of the district for appointment of Public Prosecutor, Additional Public prosecutor, Assistant Public Prosecutor, Government Pleader and Assistant Government Pleader for South Salmara Mankachar District after due consultation with the District & Sessions Judge, South Salmara Mankachar District.

The panel of names of Advocates submitted for favour of your kind information and necessary action".

11. The writ petition has been filed due to the non-inclusion of the names of the petitioners in the list prepared by the Hatsingimari Bar Association for appointment as Public Prosecutors/ Government Pleaders etc. and also in the list of Advocates submitted by the District Magistrate to the State Government. No final decision having been taken by the State Government with regard to the appointment of Public Prosecutors/ Government Pleaders etc. till date, this Court is of the view that the petitioners cannot be said to be 'aggrieved persons', as they have not been able to show as to what right they have, to be appointed or considered by the State Government. In the case of Ayaaubkhan Noorkhan Pathan vs State Of Maharashtra & Page No.# 9/9

Ors, reported in (2013) 4 SCC 465, the Apex Court has held that only an 'aggrieved person' can invoke the writ jurisdiction of a Court, for enforcing a statutory or legal right, which has been violated. In the present case, the petitioners have not been able to show what fundamental or legal right of theirs has been violated. Further, as no final decision has been taken by the State Government, violation of the any right of the petitioners has not crystallized as on date.

12. In view of the reasons stated above, this Court is not inclined to exercise its discretion in this case.

The writ petition is accordingly dismissed.

JUDGE

Comparing Assistant