Asrar Ahmed vs State of Rajasthan

Alok Sharma, J.—The matter comes up on an application (39999/5-9-14) under Article 226(3) of the Constitution of India for vacation of the exparte ad interim order dated 28-7-2014. By the said order this court directed that status as existed as of that day with reference to Annexure-9 to the writ petition be maintained till the next date.

Annexure-9 to writ petition is a letter a letter dated 15-5-2014 addressed by the District Magistrate, Sawai Madhopur to the Special Secretary, Legal Affairs department, Rajasthan forwarding a panel of five names, from amongst whom appointment to the post of Public Prosecutor in Sessions Courts at Sawai Madhopur was to be made.

It has been argued by Mr. Hasan for the petitioner that the ex-parte ad-interim stay order dated 28-7-2014 is based upon a prima facie contravention of Sections 24(4) and 24(5) of the Criminal Procedure Code, 1973 (hereinafter ''1973 Act''), which read as under:-

24(4) The District Magistrate shall in consultation with the Sessions Judge, 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.

24(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4).

Mr. Hasan submits that even though the petitioner was included in the panel of 12 Advocates forwarded by the District & Sessions Judge, Sawai Madhopur to the Collector and District Magistrate, Sawai Madhopur u/s 24(4) of the 1973 Act and placed at Serial No. 1 of the said list, yet the District Magistrate Sawai Madhopur has arbitrarily and illegally excluded the petitioner''s name and not forwarded his name to the State Government for consideration for appointment as the Public Prosecutor for the Sessions Court at Sawai Madhopur. It has been submitted that the District Magistrate has confined his recommendation to only four of those in the panel of 12 forwarded by the District & Sessions Judge, Sawai Madhopur and even arbitrarily and illegally included one Surendra Prasad Gupta in the panel sent to State Government for the purpose of consideration for appointment of one Public Prosecutor in the criminal courts at Sawai Madhopur, even though the said Surendra Prasad Gupta was not recommended by the District & Sessions Judge Sawai Madhopur. This he submits is in the cross-hair of the judgment of this court in the case of Bhag Chand Paliwal Vs. State of Rajasthan & Others [1993(2) W.L.C. (Raj.) 747]. Reliance has also been placed on a judgment of the Division Bench of this court in the case of Manak Chand Jain Vs. State of Rajasthan and Another,

Mr. Dharmendra Pareek, appearing for respondents in support of his application under Article 226(3) of the Constitution of India has submitted that the petitioner has no right whatsoever to be included in the panel forwarded by the District Magistrate, Sawai Madhopur to the State Government for appointment to the post of Public Prosecutor. He has submitted that mere inclusion of petitioner''s name in the panel of 12 Advocates forwarded by the District & Sessions Judge, Sawai Madhopur to the District Magistrate Sawai Madhopur was not the end of the matter. The District Magistrate than has the power to send as many names in the panel as required under the Policy of the State Government for consideration for appointment of the Public Prosecutor in District Sawai Madhopur. He has submitted that under directions of the State Government a minimum three names and maximum five names are to be sent in the panel by the District Magistrate for consideration for appointment on the post of Public Prosecutor. Recommendations as made by the District & Sessions Judge, Sawai Madhopur were not on the basis of merit, but solely on the basis of date of enrollment of the 12 persons, whose names were sent to the District Magistrate Sawai Madhopur for the purpose of consideration for drawing a panel to be forwarded to the State Government for appointment of a Public Prosecutor. It has been submitted that it cannot be the petitioner''s case that all 12 names sent by the District & Sessions Judge, Sawai Madhopur to the District Magistrate should have been forwarded by the District Magistrate, to the State Government. It has been submitted that the language of Section 24(4) of the 1973 Act does not mandate such a construction, and in fact the Magistrate could conceivably even forward one name after consultation with the District & Sessions Judge of the relevant district. It has been submitted that it is no doubt true that the judgments of this court in the case of Bhag Chand Paliwar (supra) and Manak Chand Jain (supra) require that consultation with the District Judge should be effective for the purpose of exercise of powers by the District Magistrate u/s 24(5) of the 1973 Act. Counsel has further submitted that this however does not entail that the District Magistrate must forward the list of all the Advocates, whose names were sent by the District Judge to the District Magistrate, for further consideration by the State Government. He has submitted that the name of the petitioner at Serial No. 1 in the panel forwarded by the District & Sessions Judge, Sawai Madhopur to the District Magistrate, Sawai Madhopur is evidently on the basis of the date of the enrollment of the various Advocates with the Bar Council of Rajasthan. The petitioner as the senior most of them was placed at serial no. 1 in the panel sent by the District & Sessions Judge, Sawai Madhopur and it does not entail the conclusion that he was the most meritorious and entitled as of right to be preferred for appointment to the post of Public Prosecutor in District Sawai Madhopur. It has been submitted that it is no doubt true that a person not recommended by the District & Sessions Judge, Sawai Madhopur cannot be included in the panel forwarded by the District Magistrate to the State Government for consideration for the appointment to the post of Public Prosecutor, and to this extent the State Government will take this fact into consideration in the appointment process.

Heard. Considered.

A reading of Sections 24(4) and 24(5) of the 1973 Act indicates that the authority for forwarding a panel to the State Government for appointment on the post of Public Prosecutor lies in the District Magistrate, albeit the District Magistrate has for the purpose to make effective consultation with the District & Sessions Judge of the concerned district. The aforesaid provisions holistically read do not warrant the conclusion as advocated by the counsel for the petitioner that the District Magistrate is bound to, as of necessity, forward all the names recommended by the District Judge, to the State Government. The District Magistrate is entitled to determine in his discretion as to which of the candidates in the panel forwarded by the District & Judge should be further recommended to the State Government for consideration for appointment on the post of Public Prosecutor. No candidate has a right to demand that if recommended by the District Judge his name, as of necessity, be forwarded by the District Magistrate to the State Government. The District Magistrate has however no doubt to adhere to the provisions of Sections 24(4) and 24(5) of the 1973 Act in letter and spirit ensuring that no name not recommended by the District Judge, is forwarded to the State Government for consideration for appointment on the post of Public Prosecutor in the District.

Consequently, in my considered opinion, the petitioner has not been able to make out a prima facie case, for being included in the panel forwarded by the District Magistrate Sawai Madhopur to the State Government, for appointment as a Public Prosecutor. This Court therefore ought not to obstruct the said process of appointment of a Public Prosecutor in Sawai Madhopur for reason of non inclusion of the petitioner''s name in the panel. It would however be in place to add that the State Government shall not consider the name of Surendra Prasad Gupta which has been included in the panel forwarded by the District Magistrate, Sawai Madhopur for consideration for appointment on the post of Public Prosecutor in Sawai Madhopur, in spite of his name not finding a place in the panel forwarded to the District Magistrate by the District & Sessions Judge, Sawai Madhopur.

Application under Article 226(3) of the Constitution of India filed by respondents is allowed in terms detailed herein above. The exparte ad-interim stay order dated 28-7-2014 passed by this court stands vacated.

The stay application filed by the petitioner stands disposed with a direction to respondents not to take into consideration the name of Surendra Prasad Gupta for appointment to the post of Public Prosecutor in District Sawai Madhopur as his name was not included in the panel forwarded by the District & Sessions Judge, Sawai Madhopur to the District Magistrate, Sawai Madhopur.

Mr. Surendra Prasad Gupta, has been impleaded as party in the writ petition and notices have been issued to him. He shall be at liberty to move an application for modification/variation or clarification of this order, if so advised.