2018 Supreme(Pat) 1114

IN THE HIGH COURT OF JUDICATURE AT PATNA
Rajendra Menon, Rajeev Ranjan Prasad, JJ.
Vijay Kumar Vimal - Appellant
Vs.
State of Bihar Through Chief Secretary, Govt. of Bihar - Respondent
Civil Writ Jurisdiction Case Nos. 7098 of 2018; 16891, 17232 & 19057 of 2017
Decided On : 16-07-2018

Headnote:

Bihar Law Officers (Engagement) Rules, 2017 – Vires of on touchstone of Article 14 – Challenge also based on alleged violation of Section 4 of Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991 as Rules, 2017 does not provide for reservation for differently abled persons and for women of all categories – Concern of petitioners in all these cases is with regard to procedures and methods which are required to be adopted by government in matter of appointment of Law Officers and Government Counsel – Rules, 2017 has not provided any method to judge merit and suitability of a candidate – All that is provided under Rules, 2017 is required standing at Bar for being Law Officers – Appointment of Government Counsel at district level and equally so at High Court level is not just a professional engagement but such appointments have a public element attached to them – Categories of Law Officers have been provided under Rule 3 whereunder Public Prosecutor, Additional Public Prosecutor and Additional Public Prosecutor (Senior Panel) are also included – For the purpose of appointment as a Public Prosecutor in terms of eligibility conditions he must be in practice for not less than 10 years in Patna High Court or in Civil Courts of Bihar respectively in court for which engagement is made – This provision is not in consonance with Proviso to sub-section (3) of Section 24 and sub-section (7) of Section 24 of Cr.P.C. – In terms of Article 165 of Constitution of India, an Advocate having 10 years of practice at Bar will be qualified to be appointed as Advocate General for State but, according to eligibility conditions prescribed under Rule 6, an Advocate, below 15 years of practice, cannot be considered for engagement as a Government Advocate and below 20 years of practice cannot be considered to be engaged as Additional Advocate General – This is discriminatory and cannot sustain test of reasonableness as criteria laying down 20 years of practice for Additional Advocate General and 15 years of practice for appointment as a Government Advocate is not based on any intelligible differentia – Powers to relax criteria for appointment of Assisting Counsel to Law Officers should be vested with Search Committee itself – Search Committee should clearly and in definite words lay down criteria for judging merit and suitability of Assisting Counsel to Law Officers and conditions which may be relaxed in a given circumstance. (Paras 13, 30, 32, 34, 38 and 42)

Bihar Law Officers (Engagement) Rules, 2017 – Vires of on anvil of Article 14 of Constitution of India – Any dilution with mode of engagement of Assisting Counsel without there being a definite criterion prescribed by Search Committee, would be contrary to views expressed by Apex Court and cannot be sustained on anvil of Article 14 of Constitution of India – Proviso to clause (i) of Rule 9 is ultra vires Article 14 – Once an Assisting Counsel has been appointed in terms sub-rule (i) of Rule 9 of Rules, 2017, he cannot be debarred from independently putting appearance and argue the matter in which he is assisting Law Officer concerned – Rule 9(i) is discriminatory also because it pre-supposes that an Assisting Counsel would not be efficient or meritorious enough to argue independently – Rule 13 of the Rules, 2017 has to be amended and brought in tune with sub-section (8) and (9) of Section 24 of Cr.P.C. – In present form Rule 13 does not talk of engagement of Special Public Prosecutor in a case or class of cases rather it talks of appointment of a Special Public Prosecutor in High Court and Supreme Court of India without specifically saying that nature of engagement of a Special Public Prosecutor is an engagement on case to case basis or for a class of cases – Directions issued. (Paras 43 to 52)

Criminal Procedure Code, 1973 – Section 24 – Appointment of Public Prosecutor – While appointment of a Public Prosecutor has been envisaged for a district and in every High Court appointment of a Special Public Prosecutor is to be done alone on case to case basis and in a class of cases. (Para 49)