A. Sudarshan vs State of A.P. and others

All these writ petitions can be disposed of by a common order, as the same question arises for consideration in all these writ petitions.

The dispute relates to the appointment of Law Officers in Nizamabad District. The mode, method and procedure adopted by the learned District and Sessions Judge is assailed in this batch of writ petitions. All the petitioners herein are practising Advocates in various Courts in Nizamabad District. According to them, they are vitally interested in upholding the dignity of the members of the Bar. All the petitioners are unanimous in asserting that no member of the Bar should solicit work from any client including the Government. According to them no Advocate should make any application to whatsoever authority seeking appointment as the Government Pleader, Public Prosecutor, Additional Public Prosecutor, Assistant Government Pleader etc., as the case may be. Such applications, according to them, would amount to soliciting the work from the Government. Yet they have chosen to file these writ petitions for setting aside the panel prepared by the learned Principal District and Sessions Judge, Nizamabad and consequential order passed by the Government appointing the law Officer.

The Collector and District Magistrate, Nizamabad vide his letter dated 17-12-1998 requested the learned Principal District and Sessions Judge to send a fresh panel of eligible Advocates for being appointed as Additional Public Prosecutor for the Court of Additional District and Sessions Judge, Nizamabad and Additional Public Prosecutor for the Court of Assistant Sessions Judge, Nizamabad and also Additional Public Prosecutor for the Court of Asst. Sessions Judge, Bodhan. The learned District Judge through letter dated 23-12-1998 requested the President, Bar Association, Nizamabad to circulate the information received by him from the Collector regarding the appointment of Additional Public Prosecutor. The learned District Judge in the said letter indicated to the President of the Bar Association that interested Bar members may submit their applications along with bio-datas for appointment as Additional Public Prosecutors for the Courts of Additional District and Sessions Judge, Nizamabad and Assistant Sessions Judge, Nizamabad so as to enable him to submit panel to the Collector and District Magistrate, Nizamabad. The District Collector through another letter dated 1-1-1999 requested the learned District Judge to send a fresh panel of eligible Advocates for being appointed as the Asst. Government Pleaders in Munsif Magistrate Courts, Bichukonda andy Nizamabad and also Government Pteader, Nizamabad. The District and Sessions Judge through his letter dated 5-1-1999 made similar request to the President, Bar Association, Nizamabad requesting him to circulate information received by him from the District Collector so as to enable the interested Advocates to submit their application along with bio-datas for consideration and preparation of panel of Advocates for appointment of the said Law Officers.

It is also evident from the record that the learned District Judge through letter dated 23-12-1998 required the Senior Civil Judge, Bodhan by adopting the same procedure as the one adopted by him to get the required information about the eligibility, qualification, practice and standing at the Bar of the Advocates who are interested for being appointed as the Law Officers.

All the learned Counsel appearing on behalf of the petitioners strenuously contend that the procedure adopted by the learned District Judge as illegal and violative of Rule 36 of the Bar Council of India Rules. It is also contended that the learned District Judge sent the names of more than three Advocates by including their names in the panel. The said action is contrary to the Executive instructions issued by the Government in the submission. Learned Counsel placed reliance upon the Judgment reported in V. Kishore Kumar Vs. The State of A.P., . The petitioner in the said case prayed for issuance of a writ of Mandamus directing the State of Andhra Pradesh to issue a fresh notification catling for a panel of advocates for appointment of Public Prosecutor in the Courts of the District and Sessions Judge, Adilabad from among advocates who have put in a minimum of 7 years of practice as per Section 24(3) read with Section 24(7) of the ''Code of Criminal Procedure, 1973. It appears that in the said case, the District and Sessions Judge invited biodatas from the Advocates who were practising for 10 years or more for consideration of the candidates to be included in a panel for appoinlrnent as Special Public Prosecutor. Some of the Advocates who have more than 10 years standing at the Bar submitted their applications to the District Judge and a panel of Advocates was sent to the Government for appointment of Special Public Prosecutor and Special Additional Public Prosecutor. In the said case, the petitioner submitted that if the notification had been issued for the appointment of Public Prosecutor, the petitioner could have applied as he has completed 7 years at the Bar. Under those circumstances, the Division Bench observed that Section 24 of the Code of Criminal Procedure, 1973 do not prescribe that the District and Sessions Judge should notify to the Bar Association and receive bio-data or applications from Advocates who are desirous of being included in the panel for the appointment of Public Prosecutor. But the practice of issuing notifications calling upon advocates with particular standing to submit their bio-data for being considered for inclusion in the panel of names for appointment as Public Prosecutor has been depricated not only because it is not sanctioned by Section 24 but also because for appointment of a professional person for rendering service to the State, no advocate can, under the rules made u/s 49(1)(c) of the Advocates Act, 1961 by the Bar Council of India apply for, appointment or solicit work. Under those circumstances, the Court observed that "it would not be proper for the District and Sessions Judges to issue notification inviting bio-data from the Advocates for consideration of being included in the panel for the appointment of Public Prosecutor. That would indirectly amount to asking the Advocate to solicit work from the State". The Court suggested that the District and Sessions Judges to obtain bio-data from such of the advocates whom they consider to be fit for appointment as public prosecutor and send a panel of eligible candidates on that basis rather than call for biodatas from all advocates having a particular standing.

In this case, it is required to notice that the learned District and Sessions Judge did not issue any notification as such calling for the bio-datas from the eligible candidates for the purpose of preparing a panel of Advocates to be sent to the District Collector for consideration and appointment as Law Officer. The learned District Judge merely made the information available to the President of the Bar Association that he is required to prepare a panel of Advocates for consideration and appointment as the Law Officer i.e., Government Pleader, Asst. Government Pleader and Additional Public Prosecutor. No doubt, it appears that even this practice adopted by the learned District Judge is not in conformity with the observations made by the Division Bench of this Court in Kishore Kumar''s case (supra). The proper course as suggested by the Division Bench is that the Principal District and Sessions Judges should make discrete enquiry and collect the information about the eligibility, qualification, practice and standing at the Bar and other factors for preparing a panel to be sent by him to the District Collector. It appears that pursuant to the information made available by the teamed District Judge to the President of the Bar Association certain Advocates appear to have submitted their bio-datas expressing their willingness for consideration of their names for being appointed as the Law Officer. It is not as if the learned District and Sessions Judge received only those applications whose names are found in the panel sent by him. Evidently, the learned District Judge made his own assessment after receiving the bio-datas and prepared a panel of seven names for the post of the Government Pleader and send the same to the District Collector and the District Collector in turn appears to have sent to the Government. The Government after receiving the said panel appointed the fourth respondent herein as the Government Pleader for the District and Sessions Court, Nizamabad. In my considered opinion, even if the method adopted by the learned District Judge is not in conformity with the observations made by the Division Bench in Kishore Kumar''s case (supra) the panel itself would not get vitiated. It is nobody''s case that the learned District Judge has not applied his mind in the matter of preparation of the panel and it is not as if he has sent all the bio-datas received by him to the District Collector instead of preparing a panel. It is evident from the record that the learned District Judge having received the required information made his own assessment of the eligible candidates and prepared the panel and one candidate out of the said panel has been appointed as the Government Pleader. Therefore, the appointment of the fourth respondent is not vitiated in any manner whatsoever. The panel prepared by the learned District Judge itself cannot be set aside on the ground that the method adopted by him in inviting the bio-datas and applications from the interested Advocates is contrary to Rule 36 of the Rules framed by the Bar Council of India.

At any rate, it is advisable that in future all the Principal District and Sessions Judges are required to take note of the observations made by the Division Bench in Kishore Kumar''s case (supra) and shall not call for the applications from the interested candidates for preparing panel of Advocates'' for appointment as Law Officers instead the learned District Judges shall make their own assessment by making their own enquiry and then sent for the bio-datas of those candidates whose names, the District and Sessions Judges consider fit to be included in the panel.

It is also urged that the District Judge should have included only three names in the panel. There is no such restriction imposed upon the learned District Judge by any law. Even the Executive instructions issued by the Government on the subject is silent on this aspect. Therefore, the panel itself cannot be declared as illegal on the ground that it consists of more than three names.

It is further submitted that neither the District Collector nor the learned District Judge followed the rule of reservation in the preparation of the panel. It is required to notice that even according to instruction 4-A of the Executive instructions issued in G.O. Ms. No.57, Law, dated 16-3-1990 which came into force with effect from 24-2-1996 which provides for application of rule of special representation and it says that all the courts in the Districts and the courts in the cities of Hyderabad and Secunderabad which are subordinate to the High Court shall be regarded as a unit of appointment. Instruction 4-B provides for observation of 33-1/3% reservation for women advocates in each category of appointment of Law Officers. The Rule of reservation applies to appointment of Law Officers in all the courts in the District and the courts in the cities of Hyderabad and Secunderabad subordinate to the High Court taking as a unit. Each District cannot be treated as a separate unit for applying the rule of reservation in the matter of appointment of Law Officers. It is evident from the counter-affidavit as well as the Executive instructions that the Government is making appointments to the post of Law Officers in all the District Courts and subordinate courts in the State taking them as one unit and maintaining a 100 point roster for this purpose. On the basis of the information and the pleadings available on record, it is not possible to decide as to whether the Government has followed the Rule of reservation in the matter of appointment of the Government Pleader in the Court of District and Sessions Judge, Nizamabad. At the same time, it is required to notice that the names of the candidates belonging to all clasres including the candidates belonging to reserved categories have been incorporated in the various panels sent by the learned District Judge as evident from the report submitted by him pursuant to the directions of this Court. Therefore, it is not possible to set aside the very panel prepared by the learned District Judge.

Viewed from any angle, I do not find any merit in these writ petition and all of them shall stand accordingly dismissed. No order as to costs. Consequently, the interim order earlier granted by this Court shall stand vacated.