Telangana High Court
WP/3619/2001 of K.Sujata Vs The Government of Andhra Pradesh on 27 December 2006
JUSTICE SRI G.S. SINGHVI AND HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY Writ Petition No.3619 of 2001 Between: K. Sujata … Petitioner And The Government of Andhra Pradesh, Rep. by its Secretary, Law (L) Department, and others. … Respondents :: ORDER:: Counsel for the
HON’BLE THE CHIEF JUSTICE SRI G.S. SINGHVIANDHON’BLE SRI JUSTICE C.V. NAGARJUNA REDDYWrit Petition No.3619 of 2001
Between:K. Sujata… PetitionerAndThe Government of Andhra Pradesh,Rep. by its Secretary, Law (L) Department,and others. … Respondents:: ORDER::Counsel for the Petitioner: Sri D. RamalingaswamyCounsel for Respondents: Government Pleader for HomeDecember 27, 2006Per G.S. Singhvi, CJ
This petition involves adjudication of the petitioner’s challenge to notification dated 1-6-1999 issued by the Chairman of Andhra Pradesh StateLevel Recruitment Board (hereinafter referred to as ‘the Board’) for recruitmentof 17 Additional Public Prosecutors Grade-II.
The petitioner is a practicing advocate. She has questioned theimpugned advertisement on the ground of violation of the provisions of theConstitution, which, according to her, postulates recruitment to the servicesand posts in connection with the affairs of the State through the agency of theAndhra Pradesh Public Service Commission (for short, ‘the Commission’). Inthe affidavit filed by her, the petitioner has averred that as per therecommendations of the Law Commission, the Prosecutors are required to beplaced under the direct control of the Department of Prosecution and,therefore, recruitment of Additional Public Prosecutors etc. must be madethrough the agency of the Commission and not any other agency like theBoard. She has then pleaded that the proposed recruitment of AdditionalPublic Prosecutors through the Board is liable to be annulled because it isintended to facilitate selection of the candidates as per the choice of thegovernmental functionaries.
In the counter-affidavit filed by Shri Jaspal Singh, Additional DirectorGeneral of Police, Recruitment and Chairman of the Board, it has beenaverred that the proposed recruitment of Additional Public Prosecutors is inconsonance with Rule 3 of the Andhra Pradesh Prosecution Service Rules,1992 (for short, ‘the 1992 Rules’). According to Shri Jaspal Singh,advertisement dated 1-6-1999 was issued in furtherance of communicationsdated 16-11-1998 and 4-12-1998 sent by the Finance and PlanningDepartment. He has referred to the provisions of Articles 315 to 320 of the Constitution and pleaded that in view of clause (3) ofArticle 320, exclusion of the posts of Additional Public Prosecutors from thepurview of the Commission cannot be faulted. He has also questioned thelocus standi of the petitioner to challenge advertisement dated 1-6-1999 byasserting that she has not even applied for the post. Shri Jaspal Singh hasdenied the allegations of mala fides and averred that in the past also theBoard has made selection in 1992 and 1997, but no such objection wasraised by anyone.
We have heard learned counsel for the parties and perused the record. For deciding whether the impending recruitment of the Additional PublicProsecutors is ultra vires the provisions of the Constitution or Sections 24 and25 of the Code of Criminal Procedure, 1973 (for short, ‘CrPC’), it will be usefulto notice the relevant constitutional and statutory provisions.
Constitutional Provisions:
Article 309, which falls in Chapter-I of Part XIV of the Constitution, laysdown that subject to the provisions of the Constitution, acts of the appropriateLegislature may regulate the recruitment, and conditions of service of personsappointed, to public services and posts in connection with the affairs of theUnion or of any State. In terms of proviso to this Article, the President or suchperson as he may direct, can make rules regulating the recruitment, and theconditions of service of the persons appointed to the services and posts inconnection with the affairs of the Union until provision in that behalf is madeby or under an act of the Parliament. Similarly, the Governor of a State orsuch person as he may direct, can make rules regulating recruitment, and theconditions of service of persons appointed to the services and posts inconnection with the affairs of the State. The rules framed under this provisoare effective till the appropriate Legislature enacts law on the subject.
Articles 315 to 323, which relate to Public Service Commissions, findplace in Chapter II of Part XIV. Article 320 (1), (2) and (3), which regulate thefunctions of the Public Service Commissions, read as under:
“320. Functions of Public Service Commission:
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(1) It shall be the duty of the Union and the State Public ServiceCommission to conduct examinations for appointment to the services ofthe Union and the services of the State respectively.
(2) It shall also be the duty of the Union Public Service Commission, ifrequested by any two or more States so to do, to assist those States inframing and operating schemes of joint recruitment for any services forwhich candidates possessing special qualifications are required.
(3) The Union Public Service Commission or the State Public ServiceCommission, as the case may be, shall be consulted-
a) on all matters relating to methods of recruitment to services and for civil posts; civil
b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfersfrom one service to another and on the suitability of candidatesfor such appointments, promotions or transfers;
c) on all disciplinary matters affecting a person serving under theGovernment of India or the Government of a State in a civilcapacity, including memorials or petitions relating to suchmatters; (d) on any claim by or in respect of a person who is serving orhas served under the Government of India or the Government ofa State or under the Crown in India or under the Government ofan Indian State, in a civil capacity, that any costs incurred by himin defending legal proceedings instituted against him in respectof acts done or purporting to be done in the execution of his dutyshould be paid out of the Consolidated Fund of India, or, as thecase may be, out of the Consolidated Fund of the State; (e) on any claim for the award of a pension in respect of injuriessustained by a person while serving under the Government ofIndia or the Government of a State or under the Crown in India orunder the Government of an Indian State, In a civil capacity, andany question as to the amount of any such award.
and it shall be the duty of a Public Service Commission to advise onany matter so referred to them and on any other matter which thePresident, or, as the case may be, the Governor of the State, may referto them:
Provided that the President as respects the all-India services andalso as respects other services and posts in connection with the affairsof the Union, and the Governor, as respects other services and posts inconnection with the affairs of a State, may make regulations specifyingthe matters in which either generally, or in any particular class of caseor in any particular circumstances, it shall not be necessary for a PublicService Commission to be consulted.”
Sections 24 and 25 of CrPC.
Sections 24 and 25 of CrPC, which relate to appointment of PublicProsecutors and Additional Public Prosecutors in the High Court and Districtsor local area and Assistant Public Prosecutors in the Courts of Magistrates,read as under:
“24. Public Prosecutors:
(1) For every High Court, the Central Government or the StateGovernment shall, after consultation with the High Court, appoint aPublic Prosecutor and may also appoint one or more Additional PublicProsecutors, for conducting in such Court, any prosecution, appeal ofother proceeding on behalf of the Central Government, as the case may be.
(2) The Central Government may appoint one or more PublicProsecutors, for the purpose of conducting any case or class of casesin any district, or local area.
(3) For every district, the State Government shall appoint a PublicProsecutor and may also appoint one or more Additional PublicProsecutors for the district:
Provided that the Public Prosecutor or Additional PublicProsecutor appointed for one district may be appointed also to be aPublic Prosecutor or an Additional Public Prosecutor, as the case maybe, for another district.
(4) The District Magistrate shall, in consultation with the Sessionsjudge, prepare a panel of names of persons, who are, in his opinion, fitto be appointed as Public Prosecutors or Additional Public Prosecutorsfor the district.
(5) No person shall be appointed by the State Government as thePublic Prosecutor or Additional Public Prosecutor for the district unlesshis name appears in the panel of names prepared by the DistrictMagistrate under sub-section (4).
(6) Notwithstanding anything contained in sub-section (5), where in aState there exists a regular Cadre of Prosecuting officers, the StateGovernment shall appoint a Public Prosecutor or an Additional PublicProsecutor only from among the persons constituting such Cadre:
Provided that where, in the opinion of the State Government, nosuitable person is available in such Cadre for such appointment thatGovernment may appoint a person as Public Prosecutor or AdditionalPublic Prosecutor, as the case may be, from the panel of namesprepared by the District Magistrate under sub-section (4).
(7) A person shall be eligible to be appointed as a Public Prosecutor oran Additional Public Prosecutor under sub-section (1) or sub-section(2) or sub- section (3) or sub-section (6), only if he has been in practiceas an advocate for not less than seven years.
(8) The Central Government or the State Government may appoint, forthe purpose of any case or class of cases, a person who has been inpractice as an advocate for not less than ten years as a Special PublicProsecutor.
(9) For the purposes of sub-section (7) and sub-section (8), the period
during which a person has been in practice as a pleader, or hasrendered (whether before or after the commencement of this Code)service as a Public Prosecutor or as an Additional Public Prosecutor orAssistant Public Prosecutor or other Prosecuting Officer, by whatevername called, shall be deemed to be the period during which suchperson has been in practice as an advocate.]
25. Assistant Public Prosecutors:
1) The State Government shall appoint in every district one or moreAssistant Public Prosecutors for conducting prosecutions in thecourts of Magistrates.
1A) The Central Government may appoint one or more Assistant Public Prosecutors for the purpose of conducting any case or class of cases in the courts of Magistrates.
2) Save as otherwise provided in sub-section (3), no police officershall be eligible to be appointed as an Assistant PublicProsecutor.
3) Where no Assistant Public Prosecutor is available for thepurposes of any particular case, the District Magistrate mayappoint any other person to be the Assistant Public Prosecutor in-charge of that case:
Provided that a police officer shall not be so appointed –
a)if he has taken any part in the investigation into the offencewith respect to which the accused is being prosecuted; orb)if he is below the rank of Inspector.”
Andhra Pradesh Prosecution Service Rules, 1992
In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India read with Sections 24 and 25 of CrPC,the Governor of Andhra Pradesh made the 1992 Rules for the AndhraPradesh State Prosecution Service. Rules 2 and 3 of the 1992 Rules, whichprovide for constitution of the service and method of appointment and havebearing on the decision of the writ petition, read as under:
“2. Constitution:-
The Service shall consist of the following categories of posts inthe Andhra Pradesh State Prosecution Service.
Category-1:Director of Prosecutions
Category-2:Additional Director of ProsecutionsCategory-3:Public Prosecutor/Joint Director of Prosecutions Additional Public Prosecutors Grade-I/Category-4:Deputy Director of ProsecutionsAdditional Public Prosecutors, Grade-IIDeputy Director of ProsecutionsAdditional Public Prosecutors, Grade-IICategory-5:Senior Assistant Public ProsecutorSenior Assistant Public ProsecutorCategory-6:Assistant Public ProsecutorAssistant Public ProsecutorCategory-7:
3. Method of Appointment:-
Subject to the other provisions in these rules, the method ofappointment for the several categories shall be as follows:- Note:
a)30% of the substantive vacancies in the category ofAdditional Public Prosecutor, Gr.II (Category-5) shall be filledby direct recruitment.Additional Public Prosecutor, Gr.II (Category-5) shall be filledby direct recruitment.
b)The remaining vacancies in the category of AdditionalPublic Prosecutor, Grade-II shall be filled by promotion fromthe Category-6. If a suitable or qualified person in thecategory of Senior Assistant Public Prosecutor is notavailable, the said vacancies shall also be filled by directrecruitment or by contract.
c)The State Level Recruitment Board in Police Departmentshall from time to time hold the examination/selection for thecandidates for appointment by direct recruitment.”shall from time to time hold the examination/selection for thecandidates for appointment by direct recruitment.”
Although the petitioner has not prayed for striking down the 1992Rules, her counsel Shri D. Ramalingaswamy argued that the same are liableto be declared ultra vires the provisions of Article 320 of the Constitution andSections 24 and 25 of CrPC because the posts enumerated in Rule 2 of the1992 Rules have not been taken out of the purview of the Commission. Hefurther argued that Note-C appearing below Rule 3 cannot be relied forjustifying exclusion of the posts of Additional Public Prosecutors from thepurview of the Commission because that exercise can be done only bymaking regulations under the proviso to Article 320 (3) of the Constitution. Learned counsel emphasized that thePublic Prosecutors represent the sovereign and, therefore, their recruitmentthrough an agency of the police department is bound to affect theindependence of the selected candidates.
Learned Government Pleader for Home relied on the non-obstante clause contained in sub-section (6) of Section 24 CrPC and argued that theprovision contained in Rule 3 for appointment of Additional PublicProsecutors Grade-I by promotion from the category of Additional PublicProsecutors Grade-II and of Additional Public Prosecutors Grade-II fromamongst senior Assistant Public Prosecutors to the extent of 70% of the postsdoes not suffer from any constitutional infirmity. He laid considerableemphasis on the fact that the petitioner is not even a candidate for recruitmentto the post of Additional Public Prosecutor Grade-II and argued that she is notentitled to question the vires of the 1992 Rules. Another argument of thelearned Government Pleader is that even though Article 320 (3) does not, interms, find a mention in the notification issued by the State Government forframing the 1992 Rules, the exclusion of the posts enumerated in Rule 3 ofthose Rules from the purview of the Commission should be read as implicitbecause the rule making authority has expressly assigned the function ofrecruitment to the Board.
We have given our most anxious consideration to the rivalsubmissions. Undisputedly, the petitioner is not a candidate for recruitment tothe post of Additional Public Prosecutor for which advertisement dated 1-6-1999 was issued by the Chairman of the Board. Therefore, her challenge tothe impugned advertisement is required to be scrutinized with greater careand a lot of reservation more particularly because none of the candidates whoappeared in the written examination held on 4-3-2001 has been impleaded asparty to the writ petition and, on that account, none of them could get anopportunity to contest the writ petition.
The argument of Shri D. Ramalingaswamy that the proposedrecruitment of Additional Public Prosecutors Grade-II through the Board isultra vires the Constitution and Sections 24 and 25 of CrPC sounds attractivebut lacks merit. No doubt, by virtue of clause (3) of Article 320, theCommission is required to be consulted on all matters relating to methods ofrecruitment to Civil Services and posts and in making promotions andtransfers from one service to another, by virtue of proviso to this clause, theGovernor can make regulations and exclude any of the matters specified inclauses (a) to (e) from the purview of the Commission. The 1992 Rules, which
regulate appointment of various posts specified in Rule 3, have been framedby the Governor of the State in exercise of the powers conferred upon him byproviso to Article 309 of the Constitution of India read with Sections 24 and 25of CrPC. These rules provide for direct recruitment to the cadres of AssistantPublic Prosecutor (100%) and Additional Public Prosecutor Grade-II (up to theextent of 30%) through the agency of the Board. With the framing of theserules, the posts specified therein will be deemed to have been taken out of thepurview of the Commission and non-mention of proviso to Article 309 (3) inthe notification issued for promulgation of the 1992 Rules is inconsequential.
Section 24 (4) envisages that the District Magistrate shall, inconsultation with the District and Sessions Judge, prepare a panel of thenames of persons who are considered fit to be appointed as PublicProsecutors or Additional Public Prosecutors for the district. Sub-section (5),which is couched in negative form, declares that no person shall be appointedby the State Government as Public Prosecutor or Additional Public Prosecutorfor the district unless his name appears in the panel prepared under sub-section (4). However, the prohibition contained in sub-section (5) is subject tothe non-obstante clause contained in sub-section (6), which lay down that ifthere exist a cadre of prosecuting officers, the State Government shall appointa Public Prosecutor or an Additional Public Prosecutor only from among thepersons constituting such cadre. Proviso to this section enables the StateGovernment to revert to the panel prepared under sub-section (4) if suitableperson is not available in the cadre of prosecuting officers.
In the case before us, there exists a regular cadre of prosecutingofficers. It comprises of the posts of Director of Prosecutions, AdditionalDirector of Prosecutions, Public Prosecutors/Joint Director of Prosecutions,Additional Public Prosecutors Grade-I/Deputy Director of Prosecutions,Additional Public Prosecutors Grade-II, Senior Assistant Public Prosecutorand Assistant Public Prosecutor. Rule 3 of the 1992 Rules specifies themethod of appointment to various posts specified in Rule 2. Therefore, theState Government is bound to appoint public Prosecutor and Additional PublicProsecutor only from among the persons who fulfill the eligibility criteria. Byvirtue of Note-C appearing below Rule 3 of the 1992 Rules, the Board is empowered to hold examination and select candidates for appointment bydirect recruitment. Since this note forms integral part of the scheme ofrecruitment prescribed by the rules framed under proviso to Article 309 of theConstitution, no exception can be taken to the holding of examination andmaking of selection by the Board for recruitment to the posts of AssistantPublic Prosecutors and Additional Public Prosecutors Grade-II.
The petitioner’s plea that the independence of the Public Prosecutorswill get compromised if they are recruited through the Board, which worksunder the control of the police department, is based on a wholly unfoundedassumption that the Board will make recommendation otherwise than onmerit. In our considered view, the bald allegations made by the petitionercannot justify a dubious assumption that the Court may necessarily beinfluenced by extraneous factors.
No other point has been argued.
Ratio decidendi
As a corollary to the above discussion, we hold that the impugnedadvertisement does not suffer from any constitutional or legal infirmity and thewrit petition is liable to be dismissed. Ordered accordingly.
G.S. SINGHVI, CJ
December 27, 2006
C.V. NAGARJUNA REDDY, J
svs