CWP No. 12194 of 2008 [1] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 12194 of 2008 Date of Decision: 06.05.2009 Arvind Thakur ..Petitioner versus State of Punjab and others ..Respondents CORAM: HON'BLE MR. JUSTICE T.S.THAKUR,CHIEF JUSTICE HON'BLE MR. JUSTICE HEMANT GUPTA 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present : Ms. Poonam Sharma, Advocate for the petitioner Mr. Amol Rattan Singh, Addl. A.G. Punjab for the respondents ***** T.S.Thakur, C.J. (Oral) This petition has been filed in public interest. It brings into focus the difficulties arising out of non-availability because of non- recruitment of Public Prosecutors/Addl. Public Prosecutors/Assistant Public Prosecutors in the State of Punjab, resulting in avoidable delay in disposal of criminal cases pending in large numbers in all the Courts in CWP No. 12194 of 2008 [2] the State of Punjab. The petitioner who is a member of the Bar at Chandigarh points out that against 74 posts of District & Sessions Judges and Addl. District & Sessions Judges, there are only 52 Law Officers available to handle the prosecution work. Similarly, against 194 posts of Chief Judicial Magistrates and Judicial Magistrates, there are only 139 Assistant Public Prosecutors, leaving a shortage of nearly 77 Law Officers. The petition further points out that 9 posts of District Attorneys are lying vacant which have risen to 14 by the end of 2008 due to retirement. In the same manner, the number of posts of Deputy District Attorneys have risen from 45 to 59 by the end of 2008. A large number of posts of Assistant District Attorneys are also lying unfilled. The petition asserts that criminal trials are being delayed inordinately for various reasons one of which is relatable to the delay in recording evidence because of insufficient number of Assistant Public Prosecutors/Addl. Public Prosecutors and Public Prosecutors. The net result is that undertrials are languishing in jails for years in violation of their Fundamental Rights of speedy trial and justice in terms of Article 21 of the Constitution. The petition also asserts that on every working day, there are at least 15-20 State trials fixed before the Judicial Magistrates and that on account of non-appointment or inadequate number of such Addl. Public Prosecutors/Assistant Public Prosecutors, they have to attend to more than one Courts in one day to examine the prosecution witnesses appearing in the cases. It is further alleged that on account of shortage of Addl. Public Prosecutors/Assistant Public Prosecutors, cases pertaining to F.I.Rs, lodged in the years 1999 and CWP No. 12194 of 2008 [3] 2000 are still pending disposal at the stage of prosecution evidence in different Courts, besides witnesses who are served and appear in the Courts, have to return unexamined on account of shortage of such Prosecutors. Suffice it to say that the writ petition paints a dismal picture of the state of affairs prevailing in the Courts below, largely on account of failure on the part of the State to fill up the available vacancies in the cadre of Assistant Public Prosecutors/Addl. Public Prosecutors/Public Prosecutors. It therefore prays for a mandamus directing the respondents to appoint the requisite number of Law Officers in the District Courts in the State of Punjab and Chandigarh against the sanctioned posts so that the Courts are not rendered helpless and dysfunctional on account of non-availability of the Prosecutors to handle the prosecution work. In response to the notice issued by this Court, the Government have filed three affidavits, all sworn by Mr. A.S.Sandhu, Director Prosecution & Litigation, Punjab. The substance of the defence set up by the respondents is that the State has, as an austerity measure, abolished across the Board posts that have not been filled up for a period of two years. The appointment of Assistant Public Prosecutors/Addl. Public Prosecutors/Public Prosecutors, which constitute a cadre in the State of Punjab is no exception to that general rule. The affidavits go on to state that 48 vacancies out of a total of 118 sanctioned posts in the cadre of District Attorneys, stand revived against which 48 persons have been appointed on contract basis in terms of the instructions issued by the Government and constitution of Committees at the District level comprising the District Magistrate, Senior CWP No. 12194 of 2008 [4] Superintendent of Police and District Attorney. So far as rest of the posts are concerned, the State proposes to revive them at different stages and fill up the said posts on a regular basis in the ratio of 40% to be filled up in the year 2009, 30% in the year 2010 and the remaining 30% in the year 2011. The affidavits filed by the respondents suggest that out of available 118 vacancies, 48 having already been appointed on contract basis, there is a balance of 70 vacancies including 10 that are expected to arise during the next three months and six by the end of this year. The actual number of vacancies existing are therefore limited to 54 according to the respondents. When the petition came up before us on 01.05.2009, we noticed that the information placed before us by the Registry as to the number of vacancies available in different districts and that furnished by the respondents, presented an inconsistent picture. We therefore directed the Registry and the Director Prosecution to reconcile the figures so that an accurate picture about the number of Courts and the number of Public Prosecutors/Addl. Public Prosecutors and Assistant Public Prosecutors in the Courts and number of vacancies is available to us. We were also of the opinion that the need for filling up the vacancies shall have to be judged by reference to the work load in the Courts concerned. The Registry was directed to secure the relevant information from the Courts concerned as to the number of cases pending before them and the adequacy and inadequacy of the Prosecutors provided to the said Courts. In compliance with the said direction, the Registry has put up a detailed note and the information called for by us from each one of the Courts in the State. From a reading of the note, it appears that CWP No. 12194 of 2008 [5] in the State of Punjab, there are at present a total of 154 Public Prosecutors/Assistant Public Prosecutors/Addl. Public Prosecutors in position. The note also assesses the shortfall in each one of the Courts not only by reference to the vacancies that are already available but also the need for such Prosecutors in the said Courts. As per the Registry's note, as on date there is a shortfall of 146 Public Prosecutors/Assistant Public Prosecutors/Addl. Public Prosecutors, in the Courts in the State of Punjab. Mr. Amol Rattan Singh, Addl. A.G. Punjab appearing for the State of Punjab, submits that the figure indicated in the note prepared by the Registry is accurate which the Director Prosecution has also verified and that he has instructions to state that the said figure does represent the actual need for Assistant Public Prosecutors in the Courts. According to him, the number of vacancies required to be filled up out of those are available or may have to be created is entirely in the cadre of Assistant Public Prosecutors. The number of Public Prosecutors/ Addl. Public Prosecutors, according to Mr. Singh is adequate and infact in excess of the number of Courts of Sessions and Addl. Sessions Judges in the State of Punjab. Some of Addl. Public Prosecutors, are according to the learned counsel, working in the Courts of Magistrates on account of shortage of Assistant Public Prosecutors in those courts for handling the prosecution work. It is thus evident from the material placed on record and the submissions made at the bar that a very large number of Courts are seriously handicapped in discharging their functions on account of non- filling of the available vacancies, for whatever the reasons. What is CWP No. 12194 of 2008 [6] significant is that as against 144 Public Prosecutors/Additional and Assistant Public Prosecutors already working, there is a shortfall of 146 such Prosecutors. This implies that the prosecution work in the State of Punjab is being handled at half the strength required to do so. It is obvious that the Courts cannot function effectively if they do not have the assistance of Public Prosecutors/Additional and Assistant Public Prosecutors required for conducting the prosecutions. It is also obvious that on account of non-availability of suitable number of Public Prosecutors/Assistant Public Prosecutors/Addl. Public Prosecutors, a large number of accused persons who are facing trial for different offences in different Courts would suffer irreparable injury and hardships on account of their trial being delayed indefinitely. This is an unacceptable situation. The State cannot, in our opinion, render the Courts ineffective and dysfunctional on account of the absence of Public Prosecutors/Additional and Assistant Public Prosecutors to handle the prosecution work. That is particularly so when those facing trials before the Courts have a Fundamental Right to speedy trial and disposal of their cases. Whatever may be the reasons for introduction of the austerity measures and whatever that expression may imply, the same cannot justify the Governments failure to make appointment against the available posts of Public Prosecutors/Additional & Assistant Public Prosecutors. The Government ought to recognise the distinction between austerity measures meant to reduce the expenses and appointments which are critical to the working of the Courts and the efficacy of justice delivery system. Inasmuch as the State has dragged its feet and delayed the appointments against the available vacancies and CWP No. 12194 of 2008 [7] caused hardship to the undertrial prisoners it must accept the blame and perform its constitutional obligation of upholding the rights guaranteed to the citizens. In the circumstances, we see no reason why the present proceedings cannot be effectively used to direct revival of all the posts of Public Prosecutors/Additional and Assistant Public Prosecutors in the State. We accordingly direct the State Government to revive within a period of six weeks from today all the posts in the cadre of District Attorneys/Addl.District Attorneys/Assistant District Attorneys to be designated as Public Prosecutors/Addl. Public Prosecutors/Assistant Public Prosecutors respectively. The next question then is as to whether the State can be permitted to fill up the available vacancies consequent upon revival of the posts in the manner in which it intends to do so. According to Mr. Singh, Addl. Advocate General, Punjab, recruitment of a large number of Addl. Public Prosecutors and Assistant Public Prosecutors in one go is likely to create difficulties apart from financial burden on the State. We do not for the present propose to interfere with the choice of the State in making regular selection in the manner it proposes to do. If for administrative reasons and exigencies, the State proposes to fill up 40% vacancies in the year 2009 and remaining 60% in the years 2010 and 2011, it may be free to do so. That would not, however, mean that the Courts would remain without Public Prosecutors. So long as the State makes arrangements to conduct prosecution work in the trial Courts, it can be given the liberty to undertake the regular and substantive selection process in a phazed manner as proposed. Short of regular appointments, the State can make arrangement by making CWP No. 12194 of 2008 [8] appointments on contractual basis. Mr. Singh points out that 48 such vacancies have already been filled up on contract basis by a Committees constituted in each District for that purpose. We see no reason why that procedure cannot be adopted for filling up the existing vacancies also after the posts are revived pursuant to the direction given by us. We accordingly direct the revival of the Committees constituted for contractual appointments. The Committees shall select and appoint Public Prosecutors/Addl. Public Prosecutors/Assistant Public Prosecutors, on contract basis, against the available vacancies. In case the revival of the committees is not for any reason feasible, the Government shall constitute a new Committee in each one of the Districts in the State which shall then select and appoint on contract basis Public Prosecutors/Addl. Public Prosecutors/Assistant Public Prosecutors against the available vacancies. The contractual arrangement shall remain valid till regularly appointed candidates become available. We may at this stage make it clear that in case any vacancy in the cadre of Public Prosecutor can be filled up substantively by promoting an Addl. Public Prosecutor or Assistant Public Prosecutor the State shall be free to fill up the vacancy by making promotion in accordance with the Rules. In case for any reason, such promotion is not made within the time allowed by us, the Government shall make contractual appointments against the said vacancies also which shall last till such time, incumbents are appointed on regular basis against the same. Similarly, if there is a vacancy in the cadre of Addl. Public Prosecutor, which according to the existing Rules, is to be filled up CWP No. 12194 of 2008 [9] according to the relevant Rules by promotion of Assistant Public Prosecutor, the State shall forthwith make such promotion to fill up the said vacancies, failing which the contractual arrangement be made through the Committees referred to above. Before parting, we also wish to point that as against 118 vacancies including 16 vacancies anticipated by the end of 2009, there are 146 Public Prosecutors/Addl. Public Prosecutors/Assistant Public Prosecutors required in the Courts below as per the statement produced before us by the Registry. This means that there is a shortfall of 28 vacancies in the cadre. The only conceivable reason giving rise to the shortfall of vacancies is that whenever new Courts are established the State has not been revising the cadre strength of the District Attorneys/Public Prosecutors. The result is that while new Courts are established, there is no corresponding increase in the number of Public Prosecutors/Addl. Public Prosecutors/Assistant Public Prosecutors. Keeping in view, however, the workload in each of the Courts that are today functioning in the State as is evident from the reports that have been placed before us by the Registry, we see no reason why each Court in the State of Punjab should not have one Public Prosecutor/Addl. Public Prosecutor/Assistant Public Prosecutor depending upon the nature and the load of the work in the said Court. There is indeed nothing to indicate that State has ever examined the need for revising the cadre strength of the Public Prosecutors/District Attorneys. It is, therefore, hightime that the State does so within a reasonable time so that the cadre strength of the Public Prosecutors is revised to match the total number of Courts that are functioning in the State. The needful in CWP No. 12194 of 2008 [10] this regard shall be done by the State within a period of three months. We make it clear that the State shall regardless whether or not the cadre strength is revised make contractual appointments so as to ensure that each Court has a Public Prosecutor/Addl. Public Prosecutors/Assistant Public Prosecutor of its own rather than sharing the Prosecutors with another Court which creates difficulty for all concerned. With the above direction, this petition is disposed of leaving the parties to bear their own costs. We make it clear that in case the needful is not done by the respondents as directed above, the petitioner shall be free to seek revival of this petition by filing an application apart from moving an appropriate application for action for the breach of these directions. A copy of the order shall be given dasti to learned counsel for the parties for compliance under the signature of the Bench Secretary. (T.S.THAKUR) CHIEF JUSTICE (HEMANT GUPTA) JUDGE 06.05.2009 'ravinder'