C. Ponnusamy vs The State of Tamil Nadu and Others

N. Paul Vasanthakumar, J.—Heard Mr. G. Rajagopalan, learned senior counsel appearing for the petitioner, Mr. P.H. Aravind Pandian,

learned Additional Advocate General for the respondent Nos. 1 to 3 and Mrs. A.L. Gandhimathi, learned counsel for the 4th respondent. This

Writ Petition is filed to quash the GO.Ms. No. 618, Home (Courts VI) Department dated 27.8.2013, insofar as the selection of the fourth

respondent as Joint Director of Prosecution (Administration) is concerned and direct the first respondent to consider the name of the petitioner for

the post of Joint Director of Prosecution (Administration).

It is the case of the petitioner that he joined in the Tamil Nadu Government Subordinate Service as Assistant Public Prosecutor Grade II on

7.9.1984 and was promoted as Assistant Public Prosecutor Grade I in Coimbatore District in the year 2004 and further promoted as Additional

Public Prosecutor at the Chief Judicial Magistrate Court, Thiruvallur District in the year 2010. The petitioner discharged his duties to the best of his

ability and he was given additional charge on 30.5.2012 of the post of Deputy Director of Prosecution, Kancheepuram District.

According to the petitioner, in the seniority list of Tamil Nadu State Prosecuting Officers as on 29.12.2006, he was placed at Serial No. 2 and

all other Public Prosecutors including the 4th respondent were shown as juniors to the petitioner.

The Directorate of Prosecution was established in the year 1995 by the State of Tamil Nadu and the said establishment was governed by certain

ad hoc Rules. The said Rules constitute the posts of the Director of Prosecution, Joint Director of Prosecution and Deputy Director of Prosecution

etc. As per Section 25A of the Criminal Procedure Code, which was introduced in the year 2006 by the Parliament, the Director of Prosecution

or the Deputy Director of Prosecution shall be appointed by the State Government after getting concurrence from the Hon''ble Chief Justice of the

concerned High Court.

The State Government without following the said procedure has filled up the posts in the Directorate of Prosecution. Hence, a Writ Petition was

filed before the Madurai Bench of this Court in W.P. (MD) No. 222 of 2009 by way of Public Interest Litigation and on 26.11.2009 reported in

(2010 Lab IC (NOC) 983 (Mad)), the Division Bench of Madurai Bench of this Court directed the first respondent to follow the provisions of

Section 25A of Cr.P.C., and fill up all the vacancies pending the Legislative Assembly Bill No. 33 of 2006 passed by the Tamil Nadu Legislative

Assembly on 2.9.2006 regarding omitting Section 25A of Cr.P.C., which is pending before the President of India for his assent.

A Contempt Petition was filed in Contempt Petition No. 594 of 2013 for non-compliance of the order in W.P.(MD) No. 222 of 2009.

Thereafter, after getting opinion from the learned Advocate General and the concurrence of the Hon''ble Chief Justice, the Government issued

G.O.Ms. No. 618, Home (Courts VI) Department dated 27.8.2013, ordering the appointment of 15 persons in the posts of Director of

Prosecution, Joint Director (Administration) and Deputy Director of Prosecution.

The grievance of the petitioner is that the fourth respondent was given appointment ignoring the claim of the petitioner and no concurrence from

the Hon''ble Chief Justice was obtained by submitting the list.

When such a submission was made by the learned counsel for the petitioner, the entire file relating to the said Government Order was called for.

It is ascertained from the said file that on 2.8.2013, the Director of Prosecution (incharge) submitted the list of persons eligible to be appointed as

Director of Prosecution and Deputy Director of Prosecution, in which the petitioner''s name was found at Column No. 3 along with 15 others

including the 4th respondent. The fourth respondent''s name was mentioned in Column No. 2. Thereafter, the Home Department in D.O. Letter

No. 2840/CTS.VI/2009 dated 7.8.2013 submitted a list with specific designation for the posts for which persons are to be appointed, containing

15 names including the petitioner''s name to the Registrar General of this Court, which was received by the Registrar General on 7.8.2013 and

after obtaining the concurrence of the Hon''ble Chief Justice, the Government Order was issued.

The fourth respondent after serving in the post of Joint Director (Administration) retired from service on 31.10.2013 and therefore, the challenge

made regarding the selection and appointment of the fourth respondent to the said post has become infructuous as on today.

Learned senior counsel appearing for the petitioner submitted that after the list was drawn, a charge memo under Rule 17(b) of the Tamil Nadu

Civil Services (Discipline and Appeal) Rules was issued on 20.8.2013 and the said charge memo was challenged by the petitioner in Writ Petition

No. 26802 of 2013 before this Court and interim stay was granted by this Court on 26.9.2013. Once the charge memo issued under Rule 17(b)

of the aforesaid Rules was stayed by this Court, there cannot be any impediment for the first respondent to consider the claim of the petitioner

seeking appointment to the said post as on today in the Directorate of Prosecution, where vacancy is available and therefore a direction may be

issued to the respondent Nos. 1 and 2 to consider the claim of the petitioner for the post of joint Director (Administration), as the petitioner is

going to retire on 31.1.2014. In view of the said submission, this Writ Petition is disposed of giving direction to the respondent Nos. 1 and 2 to

consider the claim of the petitioner seeking appointment to the post of Joint Director (Administration) in accordance with law and pass orders,

within a period of three weeks from today. No costs. The connected Miscellaneous Petition is closed.