HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.15372 of 1989 Date of Decision: May 26, 2010 **** A.K. Ahlawat and others . . . Petitioners VS. State of Haryana and others . . . Respondents **** CORAM : HON’BLE MR. JUSTICE MUKUL MUDGAL, CHIEF JUSTICE HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JASBIR SINGH HON’BLE MR. JUSTICE SURYA KANT HON’BLE MR. JUSTICE JITENDRA CHAUHAN **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. R.S. Tacoria & Mr. Sumeet Sheokand, Advocates Counsel for the petitioners in CWP No.15372 of 1989 Mr. Puneet Bali, Advocate Counsel for the petitioners in CWP No.7076 of 2007 Mr. Rajiv Raina & Mr. Daman Dhir, Advocates Counsel for the petitioners in CWP No.5545 of 1994 Mr. Randhir Singh, Additional Advocate General, HARYANA Mr. Rupinder Khosla, Additional Advocate General, PUNJAB Mr. Ramesh Hooda, Advocate Counsel for respondent No.7 in CWP No.15372 of 1989 Mr. Rajiv Atma Ram, Senior Advocate with Mr. Arjun Partap Atma Ram & Ms. Sunita, Advocates Counsel for respondent No.4 in CWP No.2599 of 1984 Mr. M.L. Saggar, Senior Advocate with Mr. G.P. Vashisht, Advocate Counsel for respondent No.4 in CWP No.5545 of 1994 ***** CWP No.15372 of 1989.doc - 2 – SURYA KANT J. (1). By this order we shall dispose of CWPs No. 2599 of 1984; 15372 of 1989; 5545 of 1994; 8466 of 1999 and 7076 of 2007 as these cases involve common legal issues for adjudication. (2). A three-Judge Bench of this Court, vide an order dated May 24, 1995, made the following reference for consideration by a larger Bench:- “The basic point involved in the present writ petition is about the vires of Rule 9 of the Haryana State Prosecution Legal Service (Group ‘A’) Rules 1979 as also Rule 9 of the Haryana State Prosecution Legal Service (Group ‘B’) Rules, 1979 which provide for filling up of 25 per cent of the vacancies to the posts of District Attorneys and Deputy District Attorneys by direct recruitment. In view of the detailed narration of facts and the law point in the order of reference dated August 5, 1993, it is not considered appropriate to repeat the entire factual position. It has been canvassed by the counsel for the petitioners that Rule 9 of 1979 Rules being in sharp contrast to the provisions of Section 24 of the Code of Criminal Procedure is ultra vires. The case was referred to the Full Bench on account of some observations made in the Division Bench judgement of this Court in D.D. Vasudev vs. The State of Haryana and others, 1981(2) SLR 735. Before us the counsel for the State has sought the help of Gulab Singh Deputy District Attorney and others vs. State of Haryana and others, 1980(2) SLR 561 for upholding the vires of Rule 9 of 1979 Rules. There is no doubt that Rule 9 was held to be intra vires but in our considered view the vires of Rules 9 were tested in Gulab Singh’s CWP No.15372 of 1989.doc - 3 – case (supra) on altogether different grounds than the one being pressed before us as also the same were challenged half-heartedly as has been observed by their Lordships of the Full Bench. In our considered view Gulab Singh’s case (supra) deserves re-consideration and this Bench being of co-ordinate jurisdiction having equal strength, it would be more appropriate that the matter is placed before the Larger Bench. We, therefore, direct the Registry to place the papers of the case before Hon’ble the Chief Justice for constituting a Larger Bench.” (3). Though the three-Judges Bench did not frame any specific questions of law inviting decision by this five-Judges Bench, however, the reference order explicitly indicates that the Bench while considering the vires of Rule 9 of the Haryana State Prosecution Legal Services (Group ‘A’) Rules, 1979 (in short, the Group ‘A’ Rules) as also Rule 9 of the Haryana State Prosecution Legal Services (Group ‘B’) Rules, 1979 (in short, the Group ‘B’ Rules) perceived some conflict between these Rules and Section 24 of the Code of Criminal Procedure, 1973. Since the ‘Rules’ had already been held intra vires in two decisions of this Court in Gulab Singh vs. State of Haryana 1980(2) SLR 561 and DD Vasudeva vs. State of Haryana, 1981(2) SLR 735 and Gulab Singh’s case (supra) having been decided by a co-ordinate Bench, that the matter were directed to be placed before a larger Bench. CWP No.15372 of 1989.doc - 4 – (4). In essence, we have been called upon to determine as to (i) whether appointment by way of ‘direct recruitment’ against the posts of Public Prosecutor is in derogation of Section 24(6) & (9) of the Code of Criminal Procedure? and (ii) whether Rule 9 of Haryana State Prosecution Legal Services (Group ‘A’) Services Rules, 1979 and the Haryana State Prosecution Legal Services (Group ‘B’) Services Rules, 1979 are liable to be struck down being in direct conflict with Section 24 of the Code of Criminal Procedure? (5). For better appreciation of the issues involved, a brief reference to the facts extracted from CWP No.15372 of 1989, along with relevant Rules and the Statues may be made. (6). Petitioners No.1 to 7 have been working as Deputy District Attorneys whereas petitioners No.8 to 26 have been working as Assistant District Attorneys in the Prosecution Department, Government of Haryana. They seek to strike down the provisions contained in Rule 9 of Group ‘A’ as well as Group ‘B’ Rules which provide for filling up 25 per cent posts of District Attorneys and Deputy District Attorneys, respectively, by direct recruitment, CWP No.15372 of 1989.doc - 5 – reasoning that the appointment by ‘direct recruitment’ against these posts of ‘Public Prosecutors’ and ‘Additional Public Prosecutors’ is directly in contravention of Section 24 of the Code of Criminal Procedure (in short, ‘the Code’). (7). Before the new Code of Criminal Procedure came into force w.e.f. 01.04.1974, the Criminal Prosecuting Agency in the State was divided into two Wings – one comprising the District Attorneys, Deputy District Attorneys and Assistant District Attorneys and the other consisting of Prosecuting Deputy Superintendent of Police, Prosecuting Inspectors and Prosecuting Sub Inspectors etc. On the recommendations of the Law Commission, Sections 24 and 25 were incorporated in the Code to keep the Prosecuting Agency independent and free from the administrative and disciplinary control of Police. (8). Section 24 of the Code as it stood prior to its amendment w.e.f. 18.12.1978, enabled the State Government to appoint a Public Prosecutor and one or more Additional Public Prosecutors for every District out of the panel of Advocates, having not less than seven-years’ practice, prepared by the CWP No.15372 of 1989.doc - 6 – District Magistrate in consultation with the Sessions Judge. (9). Sections 24 & 25 of the Code were thereafter amended w.e.f 18.12.1978 vide Act No.45 of 1978 and the substituted Section 24 reads as follows:- "24. Public Prosecutors--(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. (2) The Central Government may appoint one or more Public Prosecutors, for the purpose of conducting any case or class of cases in any district or local area. (3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district: Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district. (4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion, fit to be appointed as Public Prosecutors or Additional Public Prosecutor for the district. (5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4). CWP No.15372 of 1989.doc - 7 – (6) Notwithstanding anything contained in sub-section (5), where, in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such cadre: Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub- Section (4). (7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub- section (1) or sub-section (2) or sub section (3) or sub- section (6), only if he has been in practice as an advocate for not less than seven years. (8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor. (9) For the purposes of sub-section (7) and sub-Section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.” (10). The Statement of Objects and Reasons of the Act No.45 of 1978 suggests that the newly-added sub- Section (6) of Section 24 of the Code was brought into force as an enabling provision for the appointment of Public Prosecutors or Additional Public Prosecutors from amongst the ‘regular cadre’ of such officers wherever it had been so constituted by the State Government and it was CWP No.15372 of 1989.doc - 8 – only on the non-availability of suitable persons from the ‘regular cadre’ that the procedure of preparing a panel by the District Magistrate under sub-Section (4) of Section 24 Cr.P.C. was to be invoked. (11). The State of Haryana in exercise of its powers under proviso to Article 309 of the Constitution framed the Rules known as the Haryana State Prosecution Legal Services (Group ‘A’) Services Rules, 1979. These Rules govern the recruitment and other conditions of service of Group ‘A’ Service comprising the post of ‘District Attorney’ only. The State of Haryana also framed the Haryana State Prosecution Legal Services Group ‘B’ Rules, 1979 to govern recruitment and other service conditions of Group ‘B’ Service consisting of the Assistant District Attorneys, Additional Public Prosecutors and Deputy District Attorneys. The relevant parts of Rule 9 of both Group ‘A’ and ‘B’ Rules prescribing the mode of recruitment read as follows:- CWP No.15372 of 1989.doc - 9 – Haryana State Prosecution Legal Service (Group ‘A’) Rules, 1979 “9. Method of recruitment - (1) Recruitment to the Service shall be made – (i) by promotion from amongst Deputy District Attorneys and Additional Public Prosecutors in accordance with the slab mentioned in Appendix-C to these rules; or (ii) by direct recruitment. Note – When there are no Additional Public Prosecutors, promotion shall be made from amongst Deputy District Attorneys. (2) Of the total number of posts, three-fourths shall be manned by promoted officers and one- fourth by direct recruits: Provided that nothing in this sub-rule shall prevent the officiating appointment of a member of the Haryana Prosecution Group ‘B’ Service on any post which is to be filled up by direct recruitment, till a direct recruit is appointed. Haryana State Prosecution Legal Service (Group ‘B’) Rules, 1979 9. Method of recruitment - (1) Recruitment to the Service shall be made – (i) by direct recruitment (ii) by promotion from amongst the Assistant District Attorneys; (iii) by transfer of any official already in the service of any State Government or the Government of India; (2) One-fourth of the total number of posts shall be filled in by direct recruitment.” (12). The State of Haryana has subsequently vide Act No.14 of 1985 published on September 26, 1985, CWP No.15372 of 1989.doc - 10 – added the following Explanation to sub-Section (6) of Section 24 of the Code :- “Explanation – For the purpose of sub-Section (6), the persons constituting the Haryana State Prosecution Legal Service (Group-A) or Haryana State Prosecution Legal Service (Group-B), shall be deemed to be a regular cadre of Prosecuting Officers.” (13). The Parliament also by Act No.25 of 2005 has further amended sub-Section (6) of Section 24 of the Code w.e.f. 18.12.1978 and thereafter the said provision coupled with the Explanation added thereto by the State of Haryana, reads as follows:- “24. Public Prosecutors:- 1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. 2) The Central Government may appoint one or more Public Prosecutors, for the purpose of conducting any case or class of cases in any district, or local area. 3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district: Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district. 4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion, fit to be appointed as CWP No.15372 of 1989.doc - 11 – Public Prosecutor or Additional Public Prosecutors for the district. 5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4). 6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre: Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub- Section (4). [Explanation – For the purposes of this sub- section;- a. “regular Cadre of Prosecuting Officers” means a Cadre of Prosecuting Officers which includes therein the post of a Public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutors, by whatever name called, to that post; b. “Prosecuting Officer” means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code.] Explanation – For the purpose of sub-Section (6), the persons constituting the Haryana State Prosecution Legal Service (Group-A) or Haryana State Prosecution Legal Service (Group-B), shall CWP No.15372 of 1989.doc - 12 – be deemed to be a regular cadre of Prosecuting Officers. 7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2) or sub-Section (3) or sub-section (6), only if he has been in practice as an Advocate for not less than seven years. 8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor. 9) For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice as a Pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an Advocate.” (added or amended part emphasized) (14). Though in terms of Section 24 of the Code as applicable to the State of Haryana, the “Services” constituted under Group ‘A’ & Group ‘B’ Rules are deemed to be “regular cadres of Prosecuting Officers”, nevertheless the petitioners while relying upon sub-Section (6) read with Explanation (a) would urge that appointment to the posts of Public Prosecutors (District Attorneys) or Additional Public Prosecutors (Deputy District Attorneys) can CWP No.15372 of 1989.doc - 13 – be made by way of ‘promotion’ only from amongst the persons constituting such “regular cadres” of “Prosecuting Officers” and that appointment by direct recruitment is impermissible against these posts. (15). The petitioners while labouring the point, reiterated that the “regular cadre” of “Prosecuting Officers” in the State of Haryana comprises the posts of Assistant District Attorneys, Deputy District Attorneys and District Attorneys who are duly notified as Assistant Public Prosecutors, Additional Public Prosecutors and Public Prosecutors respectively, therefore, in view of sub- Section (6) of Section 24 of the Code coupled with Explanation (a) attached thereto, the posts in the regular Cadre of ‘Prosecuting Officers’, irrespective of their nomenclature, can be filled in by promotion only from amongst the Deputy District Attorneys- cum-Additional Public Prosecutors and the Assistant District Attorneys-cum-Assistant Public Prosecutors, as the case may be. It is argued that Rule 9 of the Group ‘A’ and Group ‘B’ Rules to the extent they provide ‘direct recruitment’ as one of the mode of recruitment against these posts, being CWP No.15372 of 1989.doc - 14 – in direct conflict with the mandate contained in the Central legislation (the Code), are liable to be struck down. (16). Learned State counsel on the other hand maintained that Group ‘A’ and ‘B’ Services in the State of Haryana are “deemed to be regular cadres of Prosecuting Officers” and the State Government is competent to appoint members of these Services as Public Prosecutors or Additional Public Prosecutors in terms of sub-Section (6) of Section 24 Cr.PC. (17). We have heard learned counsel for the parties at some length and gone through the records including various decisions and the Notifications cited at the bar. (18). In Gulab Singh’s case (supra), the constitutional validity of Rules 9 & 19 of the Group ‘A’ Rules, 1979 was unsuccessfully assailed predominantly on the ground that these provisions were inconsistent with the Punjab District Attorneys Service Rule, 1960 whereunder the Prosecuting Officers were entitled to be promoted as District Attorneys. The retrospectivity clause contained in CWP No.15372 of 1989.doc - 15 – Rule 19 of the 1979 Rules was also questioned. Both these contentions did not find favour with a three-Judge Bench who held that the Rules were competently framed by the State in exercise of its powers conferred under proviso to Article 309 of the Constitution and such statutory Rules could be brought into force retrospectively. (19). In D.D. Vasudeva’s case (supra), the writ- petitioners were serving as Deputy District Attorneys in the State of Haryana and had challenged the Government’s decision to fill up 25% posts of District Attorneys by way of direct recruitment for which the advertisement dated September 15, 1979 was issued. They took shelter behind Section 24 of the Code and argued that the State Government could not appoint the Public Prosecutors except out of the panel of Advocates prepared by the District Magistrate and/or from amongst the ‘regular cadre’ comprising the Deputy District Attorneys. The State of Haryana opposed their claim and pressed the Group ‘A’ Rules into aid, besides maintaining that there was no existing ‘regular cadre’ of the Prosecuting Officers at the level of ‘District Attorneys’. Following the Full CWP No.15372 of 1989.doc - 16 – Bench decision in Gulab Singh’s case (supra) wherein Rules 9 & 19 of the Group ‘A’ Service Rules were held intra vires, the Division Bench dismissed the writ petition. (20). The decision in Gulab Singh’s case (supra), thus, renders no help to resolve the issues involved in these cases, whereas in D.D. Vasudeva’s case (supra) also, the Bench did not advert to the vexed question though raised before it and upheld the Group ‘A’ Rules solely on the dictum of Gulab Singh’s case (supra). (21). We may now refer to the decision of the Supreme Court in K.J. John, Assistant Public Prosecutor Grade-I, Palai vs. State of Kerala and others, (1990) 4 SCC 191, which in fact has been relied upon by both the parties. In that case, the Public Prosecutors/Assistant Public Prosecutors from the States of Kerala and Uttar Pradesh asserted that there existed the “regular cadre” of “Prosecuting Officers” in their respective States and in view of Section 24(6) of the Code, the State Governments were obligated to appoint Public Prosecutors or Additional Public Prosecutors only from amongst the persons constituting such cadre(s). CWP No.15372 of 1989.doc - 17 – (22). The facts of K.J. John’s case (supra) do reveal that there was a regular cadre at the level of Assistant Prosecuting Officers both in the States of Kerala and Uttar Pradesh but appointments to the posts of Public Prosecutors and Additional Public Prosecutors used to be made on contractual basis for a specified tenure out of the panel of Advocates prepared in that regard. The Assistant Prosecuting Officers/Assistant Public Prosecutors in both the States challenged these contractual appointments on an identical plea that such appointments could be made from amongst the members of the ‘regular cadre’ only as mandated by Section 24(6) of the Code. In the light of these facts and after considering the scope of sub-Section (6) of Section 24 Cr.P.C., not least the expression “regular cadre of Prosecuting Officers”, it was ruled that :- “In this background we have to understand the scope of sub-section (6) of Section 24 which gives a clear mandate to appoint a Public Prosecutor or an Additional Public Prosecutor only from amongst the persons constituting a regular cadre of Prosecuting Officers. According to this provision any person from the advocates or from any other source cannot be appointed as a Public Prosecutor or an Additional Public Prosecutor if there already exists a regular cadre of Prosecuting Officers in a State. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx CWP No.15372 of 1989.doc - 18 – Admittedly the regular cadre of Prosecuting Officers in the State of Kerala as well as in the State of U .P. does not include Public Prosecutors or Additional Public Prosecutors.” (Emphasis applied) (23). On a conjoint reading of sub-Sections (6) & (9) of Section 24 Cr.P.C., the Supreme Court further held that :- “ The intention of introducing sub-section (6) and the deeming fiction in sub-section (9) was in order to safeguard the promotional rights of Prosecuting Officers in such of the States where there is already in existence regular cadre consisting of a hierarchy of Prosecuting Officers going to the top level of Additional Public Prosecutors and Public Prosecutors. In sub-section (9) the expression "Prosecuting Officers" has been used as taking in any persons holding the post of