^ ^N^DB-.^^W^ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PET!Tl6N (S)No. 55 /2008 PETITIONERS ^ ^•\^ \ .A T^^^^ ^ o' ./L.. • Cha.ndrahas Kashyap, aged-about 36 years, By Occupation Advocate S/o Manirarri Kashyap, R/o C/o V.R. Sahu, Near Parmeshwari Vidyalaya, Iraalibhata,Mahasaraund Shiv K.umar Sahu, aged abouf 39 years, By Occupation Advocate, S/p Sykhiram Sahu,R/ o Village Machewa, Tah and Distt. Mahasamund » RESPONDENT8 1 y" VERSUS :! , : • ^e^tate] oif^Chliattisgarh,, Through ,Secre^arx:,MiiiigJTy Jpf;Ho]T£e^. . ©iK.S. Bha.waS,Kaipur^(C.G.) - Chhatfisga.rU Public Service Comniission, thrpugh its Chairman, Azad Bhagat Singh Chowk, Raipur The Secretary. Ministry of Law, D. K. S. Bhawan, Raipur 1u iy WRIT PETITION UNDERARTICLE 226 OF THE CON- STITUTION OF INDIA ..-" .1 HIGH COURT OF CHHATTISOARH: BIIASRJR VTOIT PETITION (SINO. 590F 2008 Chandrahas Kashyap & Anothere Versus TheState ofChhattisgarh & Others Post for pKmQunceinetit of^iiKlgnrentamlorderon»,?iS-2-20M Sd/- '•- Satish K. Agnihotri Judge i: f t. ^fr. ..;!i —4 .^s.--'?»SS HK3H COURT OFCHHATTISGWH : BILASPUR WRIT PETmON (St N0. 89 OF 2008 PETITIONERS ^- RESPONDENTS Chandrahas Kast^ip, aged about 36 yeare, by occupatjon Advocate, Slo Maniram Kash^p, R/o C/o V.R. Sahu, Naar Parmashwari Vitlyala^t, Imalibhirta, Mahasamund. Shiv Kumar Sahu, agectjibout 3? years, by occypation Adyocate, S/o Sukhiram Sahu, R/o vlllage Mactiewa, Tah. and Distt. Mahasamund. Versus The State of Chhattisgarh, through Secrstary, Muiistry of Home, D.K.S. Bhavran.Ralpur (CG). ChhatUsgarh Puyfc Service Gommission, through its Chahman, Azad Bhagat Stngh Chowk, Ralpur. The Secretary, Ministry of Law, D.K.S. Bhawan, Raipur. SingteBenGh:Hon'bteShriSafishK.Aonibot".<'- ^^- Present:- Shri Paro totecha^^ ^w^ Raghvendra Pradhan, Advocatss forthe patiUonBrs. Shri Pankaj Shrivastava, Panel Lawyer for the State/ respondents No.1 and 3. None appears forthe rrepondent No.2, despite noBce. ORDER (Passed on this ^<S dav of February,2009) Bythis peBtion, the petitionere seeklhefollowing reliefe: • Firstly; a writ/direction not to appoint any one <m the post ofAssistantpublicPr(»ecutoroncontract basis; • Secondly; quash the appointment order to the post of tesistant Didrict Publfc Prosecutfon Officer issued by the Collector on contrwtbasis; and • Thirdly; the respondeints may be directed to apfxunt ths Assistant PublicProsecutors as per Annexure - P/2 who have been setected by the Chhattisgarh^Public ServiceCommissfonunderCGADPPOExam-06twithall the consequenUal beneflts. ? 2) The indisputabte facts, in nutshell, as projecte<tby the ffditiftners, are that the second responderrt—ehhatB^iarh PublicJServiceCommisskin madeanadvertisementinvitingapplicationsferappQintmentonthep<»t<rf Assistant District PuMte Prosecution Ofiicer (for.ri1^ ''(he AOWP') on 27-9-2006 (Annexure - P/1). The p<wt of ADPR3 isgaBE^tted class - II. After dueselecBon the results of the examinaUon vrere declared on 31-8-2007 and the petjfioners were placed atS.Ncs.'tS & 59, respecSvelyin the meritlist. The petiUonere were not appointed on theground that some of postewere filled up byappointment ofADPPOs on contract basis bythe Collector. It isalleged that contraiy to the prewisionsXsscuPn 25 (1)of the Code of Criminal Procedure, 1973 (fcr short the Cr.P.C.') the appointments were made by the Colleclor. The power of appoinbnent is wUh the State Government and, as siKh, thei CQtlector js nrt competent to appointanyperson as ADPPO on contract basis. 3) ShriKotecha&ShriPradhan.learnedaii^^ ofthe petitionereWouldsUbmrtttat^apa»ointm^<^AWrofe^ by the provisfons of CrP.C. read wjth theChhatUsgarh Cwil Services (Classiflcation, Control&AppeaDRutes, 1966. 4) Sub-sectfon (1) of Section 25 of the Cr.P.C. prevMes that"ff»Stete Gowmmwf shall appwit In every dlstrict one or inwe Assister^ PubSc Pmsecutois fa'conducSfytsmseeuSottSin the CourtsafMagishstes' 5) Sut>-sectton(3)ofSection25oftheCr.P.C,provktesthat'W»(»no Assi^ant Pufcfc ftosecuftw fe availabfe fw thepufpaswsofanypailiciMar case, the [Xstmt Magi^ate may eftpolnt any offier pereon to be ttw Assstant Pirislto Pmsecuter mchaigei^thatcase.'' 6) Leamed counsel would further sulxnit that the appointment of ADPPO by the Colledor may be done only when in a ,iartRUtar case no ADPPO isavailabte, ndalllheappojntmenlsofADPROson contracttosis. The exercise of power by the Coltector for gppointingthe ADPPO on contract basis is cte hofs provistons of taw and yn-constitutfonal. 7) Percontra.ShriShrhffiBlaw.leamedpan^lawyw'appearinoforthe Stat^respondents^to.1and3,wouldsybmjtthatadn·Httel(ilyth!eColte!Cto^s do not have the authority to appoint the ADPPOs. The present appointmente, on cwrtract basis, werei done pursuant toiflie ordeT passed !ti: K by this Court in Tijau Kanwar &0thers vs. The State of Chhattisgarh (CrANo.222 of2009. Accoreling to the directjons, a scheme! was revised and allfte vacant posts of ADPPQs were filled through selection proeess on the contract basis. In all 74 poste of ACM3POs hava been filled on contract basis. The Collector isfulty competentto appoint the ADPPOs. Leamed counsel would further sybmit that all the 74 posts of ADPPOs are purely on contract basis till the saidposls are fiUedup by regularsetecfion process through second respondent. 8) I have heard leamedcounsel appearing for the parties, perused the pteadings and the documents appended thereto. 9) This Court in Tijau Kanwar (supra) by order dated 17-4-2006 obseived as under: "7. The Law Secretary and the Dlrector (Prosecutipn) te clevise ascheme whereby it is ensured that Assistant fubdc Prosecutors and Additional Public Prosecutore forward judgments/orders for further acBon including filing ofappeal, revision and other proceeding just after pisslng ofthe judgmenttorder wnth thejr commentsjElirecUy t6 tha Law De|Mrtment with a co(^ to the Dtetrict l^lstrate for necessary ordeEtaction at his tevel. The Officara ofttie l.aw.Departmant after examining the papers, other relevant juclgmentforder to direct the Law OffiGere woridng jh the High Court for ftirtheractton." 10) On perusal oftheadvertisements, itappeais thatthe Cottectors have not appointed the ADPPOs fHireuant to the order dated 17-4-2006 passed byttiis Court in Tijau Kanwar (supra). 11) The second respondent issued ah advertisemwt dated27-8-2006 (Annexure - P/1) inviBng applicattons for appoihtment on the post of ADPPOs. After dueselection, ameritlistwaspre(Kired(Annexure-P/2) and some of the candidates were appointed from th6 said merit list. The peBBonere name find place in themerit Bst at S.^k)s.45 & 59, respectively. The petitioners coukl not be appointad on sccount of the fact that 74 poste werefilled up byappointmenton contract basis. The DistrotColtectore also issued advertisement in the monthof December, 2007 for appointment of ADPPOs on contract basis for a period of one year and pureuant to that, the appointments, on contract basis.were macte in the-month of January/ February, 2008 fbr a period of one year, which has furttwr teen extended for a period ofsix months. H^\ 12) SecUon 25 ofthe Cr.P.C. reads asunder: "25; Assistant PuMjc ProsecutQrs.—(1>The Sterte Govemmentshall appoint in every dislrict pneor more Assi^ant Public Prosecytors for conducUng prosscuBons in the Courte of Magistrates. (1A) The Central Govemment may appojnt one or more ^sistarrt Public Prosecutora for the purpose of conducUng any case orclass of cases in the Couite 6f Magistrate. (2) Save as otherwise provided in sub-section (3), no police officershatl be eligible to be appointed as an Asslstant Publlc Prosecutor. @) Where no Assistant Pyhilic F'rosecutor is available forthe purposes ofany parttcularcas®,fte Dlstrict Magt^ate ffiay appolntanyother perspn to be the Assistant Publie Prosecutor in charge of that case: Provided that a pplice officer shall not be so appointed— (a) if he has takenany part Inthe investigaUon into tha offonca witti respect to whlch the accused is belng (wosecuted; or (b) ifhelsbelowtherankoflnspector." 13) A bareperusaloftheprovisionsofSe<;tion25<rftheCr.P.C.,itjs clear that the State Govemment atone is competent to appoint Uie Assistant Pubtie Prosecutore (farshoif "fft®APP^ or ADPros. however, in a situationwherein no APP Is availabte for the purpose of any particular case the District Magistrate may appoint any other pereon to be the APP in charge of that case alone. The District Magisttate cannot appoint the ADPPOs, in general, on contract basis. Thus, at this stage, when the contract appointees have already compteted the term of appointment and thereafter for want of regular appQintees, Uieir term has been extended for a period of six months, it is nQtnecessaiy to adjudicate upon the legality of appointment of ADPPOs by the Coltector on contract basis. The confract appointees may conUnue fill regular appointment is madethrough proper selection by fte second r^pondent - Chhattisggrh Pyblic Service Commission or the term of extension is wer, whichever is eariier. 14) Wrth theaforesaid observations and directionsthe peh'Bon stands disposedof. 15) Consequently, all the pendingapplications also stand disptsed of. Sd/- Satish K. Agnihotri Judge