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IN THE HIGH COURT OF JUDICATURE AT PATNA
MIHIR KUMAR JHA AND RAVI RANJAN, JJ.
Jang Bahadur Singh, Advocate, Civil Court, Nawadah Son of Late Kailash Singh & Ors. – Petitioners
Versus
Secretary Law (Justice) Dept. Govt. of Bihar, Patna & Ors – Respondents
Civil Review No.195 of 2009 (in Civil Writ Jurisdiction Case No. 18755 of 2008)
Decided on: 18-12-2012
The Court held that the appointment of the Government Pleader was made without consulting the District and Sessions Judge, in violation of Rule 138 of the Bihar Practice and Procedure Manual (P.P. Manual). The Court directed the State Government to circulate a copy of the judgment to all Collectors of different districts of the State to ensure effective consultation with the District and Sessions Judge for appointments of Government Pleaders and other Government counsels.
Fact of the Case:
The petitioners, advocates, filed a Public Interest Litigation (PIL) challenging the appointment of Respondent No. 4 as the Government Pleader in the Nawada district. They argued that the appointment was made without following the proper procedure as laid down in Rule 138 of the Bihar Practice and Procedure Manual (P.P. Manual), which requires consultation with the District and Sessions Judge. The State Government and Respondent No. 4 opposed the PIL, arguing that it was not maintainable and that the appointment was made in accordance with the rules.
Finding of the Court:
The Court held that the PIL was maintainable as it related to a matter of public interest, namely, the appointment of a Government Pleader who represents the State in legal proceedings. The Court also held that Rule 138 of the P.P. Manual is mandatory and requires effective consultation with the District and Sessions Judge before appointing a Government Pleader. The Court found that in the present case, there was no effective consultation with the District and Sessions Judge, as the Collector of the Nawada district had dropped two names recommended by the District and Sessions Judge and had included the name of Respondent No. 4 without consulting the District and Sessions Judge again.
Issues: 1. Whether the PIL was maintainable? 2. Whether Rule 138 of the P.P. Manual is mandatory and requires effective consultation with the District and Sessions Judge before appointing a Government Pleader? 3. Whether there was effective consultation with the District and Sessions Judge in the appointment of Respondent No. 4 as the Government Pleader?
Ratio Decidendi: 1. The Court held that the PIL was maintainable as it related to a matter of public interest, namely, the appointment of a Government Pleader who represents the State in legal proceedings. 2. The Court held that Rule 138 of the P.P. Manual is mandatory and requires effective consultation with the District and Sessions Judge before appointing a Government Pleader. 3. The Court found that in the present case, there was no effective consultation with the District and Sessions Judge, as the Collector of the Nawada district had dropped two names recommended by the District and Sessions Judge and had included the name of Respondent No. 4 without consulting the District and Sessions Judge again.
Final Decision: The Court allowed the PIL and directed the State Government to circulate a copy of the judgment to all Collectors of different districts of the State to ensure effective consultation with the District and Sessions Judge for appointments of Government Pleaders and other Government counsels.
(Per: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA)
1. Heard counsel for the parties.
2. In this application the petitioner have made a prayer for recall/review of the order dated 25.3.2009 passed in C.W.J.C. No. 18755 of 2008 and consequently also consider afresh their prayer in the aforesaid writ application.
3. Learned Counsel for the petitioner at the outset has prayed for condonation of delay in filing of this review application by referring to the facts mentioned in this application. This Court in fact for the purposes of condoning the delay in filing this application has also taken into consideration that the order sought to be reviewed dated 25.03.2009 passed in C.W.J.C No. 18755 of 2008 was subsequently made subject matter of Special Leave Petition, S.L.P No. 11879 of 2009 before the Apex Court which was withdrawn by the petitioners on 15.05.2009 with a leave to file this review application and thereafter this review application was filed on 15.07.2009. Thus the delay in filing of this review application being well explained is hereby condoned specially when the respondent-opposite parties in pursuance of notice issued by this Court on 21.04.2010 in the limitation matter have also filed no counter affidavit objecting to the prayer for condonation of delay in filing of the review application.
4. Coming to the merits of the case, it has to be only noted that the petitioners had earlier filed C.W.J.C No. 18755 of 2008, wherein, they had assailed the order dated 04.12.2008 appointing respondent no.4, Bharat Prasad as Incharge Government Pleader of Civil Court, Nawada under the orders of the Law Secretary of the Government of Bihar dated 04.12.2008. The said application was, however, dismissed by an order dated 25.03.2009, which reads as follows:-
“Heard counsel for the parties.
This writ petition relates to appointment of Government Pleader in the District of Nawadah.
It is the case of the petitioner that the District & Sessions Judge recommended names of seven persons for appointment of Government Pleader in the District of Nawadah and out of seven names, the Collector of the district forearded the names of five persons and thereafter two more names were sent by the Collector including the name of Bharat Prasad, who was appointed as a the Government Pleader and his name was earlier not consulted with the District & Sessions Judge, and, therefore, his appointment as such is illegal.
Bharat Prasad has been made respondent no.4 in this writ application. Rule 138 of the Bihar Practice & Procedure Manual (hereinafter to be referred to as “Manual”) reads as follows:-
138. Appointments to be made after inviting applications. Whenever the post of Public Prosecutor or Government Pleader or the combined post of Government Pleader and Public Prosecutor becomes vacant, the District Officer shall invite applications for the post four months before the expiry of the term of appointment of the existing incumbent. The District Officer shall consult the District and Sessions Judge about the applications received by him and within two months of inviting the applications, shall submit them with his recommendation through the Divisional Commissioner to the Legal Remembrancer for the orders of Government.”
In the present Case, as per the Rules, applications for appointment of Government Pleader were invited and on receipt of the applications for such appointment, the District & Sessions Judge was consulted and names of seven persons were recommended to the Legal Remembrancer of the respective Government.
It is the contention of the petitioner that 35 applicants applied for appointment of Government Pleader.
It appears that out of 35 applicants, seven suitable names were forwarded by the Collector to the District & Sessions Judge. It also appears that out of seven names, subsequently, two suitable names were recommended including the name of Bharat Prasad, who is respondent no. 4 in this writ application by the Collector of the District in
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