1 915 wp 1849.11.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1849 OF 2011 Ayub S Pathan & Anr. ..Petitioners. Vs. High Court of Judicature of Bombay & Anr. ..Respondents. Mr.Sugandh B. Deshmukh for Petitioner. Mr.Nitin Jamdar for Respondent no.1. Mr.A.B.Vagyani, AGP for Respondent no.2. CORAM : D.K.DESHMUKH & K.K.TATED, JJ. DATED : 03/03/2011. PC: 1 The Petitioners in this Petition have obtained Law Degree and presently they are in service, one in the service of the Union of India and the other in the service of the Government of Maharashtra as Public Prosecutors and they are salaried Public Prosecutors. They challenge advertisement dated 18th February, 2011 issued by the Registrar General of this court inviting applications for the post of District Judge. The first contention 2 915 wp 1849.11.doc of the learned counsel is that the proviso quoted below is invalid: “Provided that a full time salaried Public Prosecutor, Assistant/Additional Public Prosecutor, Law Officer of the Central Government or State Government or of any Public Corporation or Body constituted by Statute, would not be eligible for the post of District Judge.” 2 It is contended that the proviso is contrary to law and has been inserted without the authority of law. It is submitted that a Public Prosecutor is eligible to apply but a salaried Public Prosecutor, Assistant/Additional Public Prosecutor, Law Officer of the Central Government or State Government is not so eligible. The learned counsel submits that it is discriminatory because the Public Prosecutors whether salaried or not constitute one class. The second submission is that the above quoted proviso has been inserted without authority of law because the Rules governing appointment to the post of District Judge do not have such a provision. The third submission is that though the advertisement contemplates certificate about knowledge of Marathi and it is stated that the list of such 3 915 wp 1849.11.doc officers who can issue the certificate is given, it is not actually given in the advertisement. 3 So far as the first submission is concerned, the point is covered against the Petitioners by judgment of the Supreme Court in the case of Satish Kumar Sharma vs. Bar Counsel of H.P. reported in (2001) 2 Supreme Court Cases 365, wherein the Supreme Court has held that salaried Public Prosecutors constitute a class different from the Public Prosecutors who are not salaried employees. What is observed by the Supreme Court in paragraph 23 of the judgment is relevant, which reads as under: “23. We find no merit in the ground urged that the appellant was discriminated against the prosecutors and the government pleaders. The duties, nature of work and service conditions of the appellant, details of which are already given above, are substantially different from the duties and nature of work of prosecutors and government pleaders particularly in relation to acting and pleading in court. Thus the appellant stood on a different footing. The High Court in paras 24-26 has dealt with this aspect of the 4 915 wp 1849.11.doc case and rightly rejected the argument based on the ground of discrimination.” 4 It is thus clear that the provision making salaried Public Prosecutors ineligible cannot be said to be discriminatory. So far as the second ground is concerned, the ground is non- existent because by amendment dated 31.12.2010, the proviso has been added to the rules which makes salaried Public Prosecutors ineligible. Really speaking this ground should not have been raised in the Petition and should not have been argued. This shows lack of preparation by the Petitioner and/or his lawyer in filing and arguing the Petition before this court. The Rules were amended on 31.12.2010, the amendment was published in the official gazette. The Rules are also available on the website of this court. Therefore, with little efforts the amendment could have been known. 5 So far as the third contention is concerned, it is equally devoid of any merits because in the advertisement it is clearly mentioned that the certificate is to be obtained, if the person is working in the High Court from the Registrar General of the High Court or if he is working under the Benches from the Registrars working in the Benches and other authorities. 5 915 wp 1849.11.doc 6 The Petition thus is a frivolous Petition which has been unnecessarily filed. What we find rather disturbing is, allegations have been made in the Petition without giving a thought to the aspect that these allegations are being made against High Court. 7 In paragraph 14, the Petitioners say that there is no amendment in the Rules making salaried Public Prosecutors ineligible, even if there is such an amendment that amendment has been incorporated not by the full house of the High Court but by Committee of few judges of the Court. When we asked the learned counsel appearing for the Petitioners as to what is the basis for such assumption, he was unable to say anything. The only explanation given by him was that the Supreme Court in some judgments said that High Court constitutes Committee of Judges. In our opinion, with little effort, the Petitioners could have found out that not only the amendment is approved by the full house but it has been accepted by the Government and has been published in the official gazette. In our opinion, the tendency to file Petitions which have no substance and to make allegations against the authority is on the increase and there is need to curb such tendency. In our opinion, therefore, not only the Petition is liable to be rejected but exemplary costs have to 6 915 wp 1849.11.doc be imposed on the Petitioners. The Petition is thus, rejected. The Petitioners are directed to pay Rs.25,000/- as costs to the High Court. (D.K.Deshmukh, J.) (K.K.Tated, J.)