1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Writ Petition No.4822 Of 2009. * Jayant S/o Shivajirao Jagdale ] Age 40 years, ] Occupation : Advocate ] R/o Samrat Ashok Colony, ] Vidyanagar, Osmanabad ] District Osmanabad. ] ... Petitioner. Versus 1) The State of Maharashtra ] Through the Principal ] Secretary, Law and ] Judiciary Department, ] Mantralaya, Mumbai. ] ] 2) Shashikant S/o Panditrao Nimbalker] Age 58 years, ] Occupation : Advocate, ] R/o C/o Office of the District ] Government Pleader, ] District Court, ] District Osmanabad. ] ] 3) Vishwas S/o Kashinath Jadhav, ] Age 54 years, ] Occupation : Ex District Judge ] Osmanabad, presently working ] as Registrar (Inspection I) ] High Court of Bombay, ] Fort, Mumbai. ] ... Respondents. -------- 2 Shri. P.R. Patil, Advocate for the petitioner. Shri. V.N. Damle, Counsel for respondent No.1. Shri. N.B. Khandare, Government Pleader for State. Shri. R.N. Dhorde, Advocate for respondent No.2. Shri. V.J. Dixit, Senior Advocate for respondent No.3. -------- CORAM: NARESH H PATIL & K.U. CHANDIWAL, JJ. Judgment reserved on : 2nd December 2009 Judgment pronounced on : 15th December 2009 JUDGMENT :(Per Naresh H Patil, J.) : 1) Rule returnable forthwith. By consent of the parties the matter was heard finally. 2) The petitioner, an Advocate practicing at District Court, Osmanabad, prayed for issuance of writ, order or direction for setting aside the impugned order dated 9th June 2009 issued by the Department of Law and Judiciary, State of Maharashtra appointing respondent No.2 – Mr. Shashikant Panditrao Nimbalkar as District Government Pleader and Public Prosecutor for Osmanabad District and for setting aside the order passed by the Law and Judiciary 3 Department dated 22nd May 2009 staying the effect and operation of the order appointing the petitioner as District Government Pleader and Public Prosecutor of District Court Osmanabad. The petitioner further prayed for writ of mandamus for implementation of the notification dated 22nd May 2009 wherein the petitioner was appointed as District Government Pleader and Public Prosecutor. The petitioner amended the petition during the course of hearing and added consequential prayer clauses and further prayed for setting aside the order dated 6-7-2009 by which the State Government had cancelled the appointment of the petitioner as District Government Pleader and Public Prosecutor with effect from 22nd May 2009. 3) In substance, the petitioner’s contention is that the respondent No.2 Mr. Nimbalkar was appointed as District Government Pleader and Public Prosecutor initially by a notification dated 28-10-1992 and since last 17 years respondent No.2 is continued as District Government Pleader and Public Prosecutor. It is alleged by the petitioner that during the course of said tenure as District Government Pleader and Public Prosecutor there were several complaints made against the functioning of the respondent No.2. 4 4) On 7th January 2009 the Law and Judiciary Department directed the Collector Osmanabad to issue a notification for preparing a panel for appointment to the post of District Government Pleader and Public Prosecutor. It is contended that on 7-1-2009 a notification was issued by the Collector Osmanabad inviting applications from eligible advocates. The petitioner submitted his application to the Collector on 22nd January 2009. The respondent No.2 had also applied for the said post. The Collector had forwarded a panel of four Advocates to the Law and Judiciary Department which was received by the said department on 9th March 2009. Amongst the four names the Collector had recommended the petitioner and respondent No.2. The respondent No.2 was at Sr.No.1 in the list of the Collector. The said list of four names was forwarded by the Collector after seeking opinion of the District and Sessions Judge Osmanabad which was forwarded to the Collector on 11th February 2009. The District and Sessions Judge recommended the name of respondent No.2 Mr. Nimbalkar and endorsed that respondent No.2 has deep knowledge of law and as an Advocate in Court work he is prompt, honest and hard worker. It was further observed by the District Judge that respondent No.2 has good relations with the Bar Association; the Judges and the staff of the 5 Court. He defends the State Government honestly. Apart from this endorsement the District Judge recommended names of six more Advocates. The case of the petitioner is that in view of the provisions of Section 24(3) of the Code of Criminal Procedure, 1973 read with Section 2 of the Code of Civil Procedure 1908 and Rule 13 of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules 1984 (for short “the Rules of 1984”), the petitioner was appointed as District Government Pleader and Public Prosecutor for a period of three years. The order of appointment was passed by order and in the name of the Governor of Maharashtra. A notification was sent for publication in the Government Gazette which was even published in the Government Gazette on 9th July 2009. The petitioner’s contention is that on the same day the Law and Judiciary Department of the Government of Maharashtra stayed the appointment of the petitioner. The petitioner sought further information on 15-6-2009 under the Right to Information Act 2005 which was provided to him. 5) The grievance of the petitioner is that after filing of this writ petition on 1st July 2009, the petitioner received an order dated 6th July 2009 wherein it was informed to him that his appointment 6 was cancelled with effect from 20th May 2009 on the ground that the District Judge Osmanabad did not recommend the name of the petitioner. 6) As regards the respondent No.2, the petitioner has raised serious allegations and contended that complaints were received by the State Government regarding functioning of respondent No.2 as District Government Pleader and Public Prosecutor. An issue was also raised by Professor Sharad Patil, Member of Legislative Council alleging that respondent No.2 was behaving in autocratic manner. The complaint was also addressed by a farmer to the then Hon’ble the Chief Minister in the year 2006. The petitioner contended that the Additional Secretary and Legal Adviser, Law and Judiciary Department was directed to hold a preliminary inquiry into the allegations made against respondent No.2. An enquiry was accordingly conducted and it was opined that some of the allegations made against respondent No.2 were correct and there was evidence of negligence in defending the state in the cases contested before the Court. The Inquiry Officer opined that it was likely that the Government would suffer huge financial losses and further opined that the charge Nos.2 and 3 therein leveled against respondent No.2 7 are correct and, therefore, a preliminary report was submitted. The concerned Department further put up notes for terminating the services of respondent No.2 by giving opinion that the allegations made against respondent No.2 could be examined under the Prevention of Corruption laws. The State Government, according to the petitioner, was convinced that the appointment of the respondent No.2 is required to be cancelled. 7) According to the petitioner, all the facts and circumstances emerging out of the material placed before this Court indicate only conclusion that the State Government by adopting a highly unreasonable stand cancelled the appointment of the petitioner and appointed respondent No.2. 8) The learned counsel Shri. P.R. Patil appearing for the petitioner submitted that the enquiry report was submitted by the concerned officer of the Law and Judiciary Department and on 16-12-2008 the Law and Judiciary Department by putting written notes opined that the charges leveled against respondent No.2 are of serious nature and the services of the respondent No.2 are to be terminated immediately and the allegations made against respondent 8 No.2 be enquired into under the Prevention of Corruption laws. Accordingly by a communication dated 2-1-2009 the State Government decided to call for fresh panel of lawyers and thereafter the process stated and the petitioner came to be appointed as District Government Pleader and Public Prosecutor. 9) The first and foremost objection raised by the learned counsel for the petitioner is that vide Maharashtra Act No.34 of 1981 the State of Maharashtra deleted the provisions of consultation with the High Court and the Sessions Judge for the purposes of appointment of Public Prosecutors or Additional Public Prosecutors. In view of the same, the cancellation of the appointment order of the petitioner passed by the State Government on the ground that the District and Sessions Judge did not recommend the name of the petitioner is against the provisions of law and the decision, therefore, suffers from total non application of mind. In the submission of the counsel, there were allegations made against the conduct of the respondent No.2 as District Government Pleader and Public Prosecutor which were enquired into and in a preliminary enquiry report some of the allegations were found to be serious and having considered the same, the State Government had endorsed that the 9 services of the respondent No.2 shall be dispensed with at the earliest. In spite of the same the respondent No.2 was chosen by the State Government in undue haste which speaks volumes for itself. The learned counsel Shri. P.R. Patil submitted that the District Government Counsel represents the interests of the general public before the Court. The Government Pleader must possess character, competence and sufficient experience and standing at the Bar. They perform public duty and therefore public element is involved in the functioning of the Government Pleaders may be of the District Court or the High Court. In the submission of the counsel, reliance placed by the State on the judgment in the case of Neelima Vartak v. State of Maharashtra 2005 (4) All MNR 495 is misplaced and not applicable to the facts of this case. The said judgment is required to be held as per incuriam, according to the counsel. The learned counsel drew attention of the Court to the stand adopted by the State in the case of Vilas Jagannath Dhorde Patil vs. State of Maharashtra – Writ Petition No.1507 of 2009 decided by a Division Bench of the Bombay High Court, Bench at Aurangabad (Coram: P.V. Hardas and R.K. Deshpande, JJ.) and based on the same the counsel submits that the State now cannot take a somersault as in the case of Vilas Dhorde Patil it was argued on behalf of the 10 State that the requirement of the primacy of the opinion or the consultation with the District and Sessions Judge in the matter of selection and appointment of District Government Pleader and Public Prosecutor has been done away by way of amendment made to the Section 24(1) and (4) of the Cr.P.C. with effect from 20th May 1981 and now to read such primacy again in amended provision would defeat the object of the said enactment. The counsel submits that it was argued in case of Vilas Dhorde Patil’s case that the view taken by the Division Bench in Vartak’s case is contrary to the intendment of the legislature. 10) The respondent No.1 filed affidavit-in-reply through Mr. Vasantrao Rajaram Patil, Joint Secretary, Law and Judiciary Department. The deponent contended in substance that the panel was called from the Collector for appointment of District Government Pleader Osmanabad which recommended four names out of which the District Judge had recommended only two names namely respondent No.2 Mr. Nimbalkar and one Mr. Virsangappa Alange. In view of the Government Resolution dated 15th December 2003 the matter was put up before the High Power Committee consisting of the Advocate General of Maharashtra and the Principal 11 Secretary, Law and Judiciary Department. This Committee is entrusted with the work of screening the applications and submitting a list of applicants to the Minister of State and Cabinet Minister of Law and Judiciary Department. And thereafter the file is submitted to the Hon'ble the Chief Minister for final decision. The deponent stated that the Principal Secretary of Law and Judiciary Department put up the file before the Committee. The High Power Committee recorded its comments in the minutes dated 6-5-2009 which were placed before the Government. The Officer on Special Duty had directed that the appointment of the petitioner be stayed. The record with the endorsement dated 22-5-2009 made by the Principal Secretary and Legal Remembrancer was put up before the Hon’ble Law Minister on the same day, who recorded that it appears that the name of the petitioner was not recommended by the District and Sessions Judge and hence the appointment of petitioner Mr. Jagdale be revoked. The deponent stated that the Hon'ble Minister of Law had directed staying the appointment order of the petitioner. 11) On behalf of the State, the Special Counsel Shri. V.N. Damle submitted that the Law Minister had opined in favour of respondent No.2 after it was brought to the notice that the name of 12 the petitioner was not recommended by the District and Sessions Judge Osmanabad though his name was in the panel of four names forwarded by the Collector. No sooner it was realized, the State authorities had stayed the appointment of the petitioner on the same day and thereafter communicated the cancellation of his appointment order. In the submission of the counsel the State had to take this decision in view of the law laid down in the case of Neelima Vartak (cited supra). As the State was following the policy of consultation with the District and Sessions Judges through the Collectors of the respective districts. It was noticed that the said requirement was lacking in the case of the petitioner and, therefore, the Government of Maharashtra adopted the stand which was reflected through the statement made by the learned Advocate General in the case of Neelima Vartak. Even today, according to Shri. Damle, the Government maintained the said stand. The ultimate decision of selecting names from panel is with the Government even though the High Power Committee is assigned with the work to forward names to the Government after screening. In other words the opinion of any of the authorities or persons in the process is not binding on the Government. 13 12) The learned counsel Shri. Damle submitted that the petitioner has no locus standi neither any vested right to question appointment of respondent No.2 and seek appointment of the petitioner as the Government Pleader. In such matter the Government discharge its administrative function, therefore judicial review of the administrative decision is not permissible unless it is backed by impropriety and irrational in nature or against the specific provisions of law. The petitioner never assumed the charge as District Government Pleader under the orders of the State Government which was stayed on the same day. The learned counsel submitted that as the Government is making its stand clear regarding following the stand adopted by the State in the case of Vartak, the reference to the judgment in the case of Vilas Dhorde Patil is not relevant for the purpose. In the opinion of the counsel the judgment in the case of Vartak could not be declared as per incuriam as the observations of the Court were based on the reported judgment of the Apex Court in the case of State of U.P. and another v. Johri Mal, (2004) 4 SCC 714. The learned counsel Shri. Damle submitted that the Government would certainly take cognizance of the preliminary enquiry report submitted by the responsible officers of the Law and Judiciary Department against the respondent No.2 14 and appropriate steps and decision will be taken in that regard at the earliest. 13) The learned counsel Shri. Ramesh Dhorde appearing for the respondent No.2 refuted the allegations made by the petitioner. Affidavit in reply was filed by the respondent No.2. the learned counsel submitted that the petitioner has no vested right to question the decision of the Government. The observations of the Apex Court in the case of Johri Mal and the case of Vartak in respect of consultation are accepted and implemented by the Government of Maharashtra since long and even today they are being implemented even after deletion of the provisions from Section 24 of the Cr.P.C. Therefore, reliance placed on the arguments advanced in the case of Vilas Dhorde Patil would not have any bearing now as the petitioner’s name was never recommended by the District and Sessions Judge. The Government rightly cancelled the order of appointment of the petitioner. 14) We are of the firm opinion that the Government Pleaders, may be of District Courts or the High Court are the officers of the Court but they also represent the State. They perform public 15 and statutory duties and the Courts repose confidence in them. They represent interest of the general public before the Court. They must, therefore, have character, competence and sufficient experience and dignified standing at the Bar. There cannot be any dispute that only meritorious and competent persons shall be appointed to these offices. The public at large is concerned in the manner in which the High Court and District Government Pleaders discharge their duties. 15) It is a matter of day to day experience in the High Court or the District Courts in large number of cases the State is the litigant in matters involving complicated questions of law, decisions of which affect not only the interests of the State but of the public at large. The issues which the Government Pleaders are supposed to deal with are of variety in nature, they relate to civil criminal constitutional in nature. As officer of the Court they not only defend the State but at the same time assist the Court in discharge of their duties and in aid of dispensation of justice fairly, fearlessly and in transparent manner. Therefore, we may emphasise that the qualities as mentioned above have to be first noticed in the person whom the Government would be selecting its lawyers to represent them in Courts. 16 16) Before proceeding further we may refer to the observations of the Court made in this regard in the reported judgments cite by the petitioner. before us. In the case of Kumari Shrilekha Vidyarthi v. State of U.P., AIR 1991 SC 537 the Apex Court in paragraphs 17 and 20 observed thus : “17. We are, therefore, unable to accept the argument of the learned Additional Advocate-General that the appointment of District Government Counsel by the State Government is only a professional engagement like that between a private client and his lawyer, or that it is purely contractual with no public element attaching to it, which may be terminated at any time at the sweet will of the Government excluding judicial review. We have already indicated the presence of public element attached to the ‘office’ or ‘post’ of District Government Counsel of every category covered by the impugned circular. This is sufficient to attract Article 14 of the Constitution and bring the question of validity of the impugned circular within the scope of judicial review.” “20. Even apart from the premise that the ‘office’ or ‘post’ of D.G.Cs. has a public element which alone is sufficient to attract the power of judicial review for testing validity of the impugned circular on the anvil of Art.14, we are also clearly of the view that this power is available even without that element on the premise that after the initial appointment, the matter is purely contractual. Applicability of Art.14 to all executive actions of the State being settled and for the same 17 reason its applicability at the threshold to the making of a contract in exercise of the executive power being beyond dispute, can it be said that the State can thereafter cast off its personality and exercise unbridled power unfettered by the requirements of Article 14 in the sphere of contractual matrers and claim to be governed therein only by private law principles applicable to private individuals whose rights flow only from the terms of the contract without anything more? We have no hesitation in saying that the personality of the state, requiring regulation of its conduct in all spheres by requirements of Article 14, does not undergo such a radical change after the making of a contract merely because some contractual rights accrue to the other party in addition. It is not as if the requirements of Art.14 and contractual obligations are alien concepts, which cannot co-exist.” In the case of State of U.P. v. Johri Mal AIR 2004 SC 3800, the Apex Court in paragraphs 21,75,86 and 88 has held thus :--: “21. The provisions of the Code of Criminal Procedure which are statutory in nature govern the field. The State of Uttar Pradesh, however, for reasons best known to it amended sub-section (1) of Section 24 of the Code of Criminal Procedure as a result whereof, the state is not required to consult the High Court before appointing a Public Prosecutor for the High Court. Similarly, sub- sections (4), (5) and (6) of Section 24 have also been deleted purported to be on the ground that similar provision exist in the Legal Remembrancer Manual. The Legal Remembrancer Manual is merely a compilation of executive orders and is not a ‘law’ within the meaning of Article 13 of the Constitution of India.” 18 “75. The District Government Counsel represent the States. They, thus, represent the interest of general public before a court of law. The Public Prosecutors while presenting the prosecution case have a duty to see that innocent persons may not be convicted as well as an accused guilty of commission of crimes does not go unpunished. Maintenance of law and order in the society and, thus, to some extent maintenance of rule of law which is the basic fibre for upholding the rule of democracy lies in their hands. The Government counsel, thus must have character, competence, sufficient experience as also standing at the Bar. The need for employing meritorious and competent persons to keep the standard of the high offices cannot be minimized. The holders of the post have a public duty to perform. Public element is, thus, involved therein.” “86. The age old tradition on the part of the States in appointing the District Government Counsel on the basis of the recommendations of the District Collector in consultation with the District Judge is based on certain principles. Whereas the District Judge is supposed to know the merit, competence and capability of the concerned lawyers for discharging their duties, the District Magistrate is supposed to know their conduct outside the Court vis-a-vis the victims of offences, public officers, witnesses etc. The District Magistrate is also supposed to know about the conduct of the Government counsel as also their integrity.” “88. The State should bear in mind the dicta of this Court in Mundrika Prasad Singh (supra), as regard the necessity to consult the District Judge. While making appointments of District Government Counsel, therefore, the States should give primacy to the opinion of the District Judge. Such a course of action would demonstrate fairness and reasonableness of action and, furthermore, to a large extent the action of the State would not be dubbed as politically motivated or 19 otherwise arbitrary. As noticed herein above, there also does not exist any rationale behind deletion of the provision relating to consultation with the High Court in the matter of appointment of the Public Prosecutors in the High Court. The said provision being a salutory one it is expected that the State of U.P. either would suitably amend the same or despite deletion shall consult the High Court with a view to ensure fairness in action.” In Neelima Sadanand Vartak v. State of Maharashtra, 2005 (4) ALL MR 495 a Division Bench of the Bombay High Court in paragraphs 18 and 19 held thus: “18. Mr. Kadam, learned Advocate General, on the other hand, pointed out that the process of selection started with the District Magistrate advertising the post. This is done with the approval of the State Government which is now the requirement after the Amendment in Section 24(4). Thereafter, the District Magistrate received the applications. He