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2018 Supreme(Pat) 1621
IN THE HIGH COURT OF JUDICATURE AT PATNA
SHIVAJI PANDEY, J.
Mr. Nasiruddin Haider, S/o Md. Amir Hassan - Petitioner
Versus
The State of Bihar through Secretary, Department of Law, Government of Bihar, Patna & Ors. - Respondents
Civil Writ Jurisdiction Case No.12117 of 2018
Decided On : 20-12-2018
For the Petitioner:Mr. Yogesh Chandra Verma, Sr.Adv., Mr. Fahad Khurshid, Advocate.
For the Respondents:Mr. Md. Raisul Haque, SC-10, Mr. Md. Obaidullah, A.C. to S.C.-10, Mr. Y.V. Giri, Sr. Adv., Mr. Sumit Kumar Jha, Advocate, Mr. Rajat Tiwary, Advocate, Mr. Rajesh Kumar Jha, Advocate.
Headnote:
Bihar Practice and Procedure Manual – Rule 143 – Bihar Law Officers (Engagement) Rules, 2017 – Rule 5 – Criminal Procedure Code, 1973 – Section 24 – Termination of tenure appointment as Public Prosecutor – Appointment of petitioner was for three years beginning from date of his joining and will come to an end automatically after expiry of period and post will be treated to have fallen vacant – Tenure post is in nature of fixed period appointment, during that period person who is appointed has right to continue on said post – It is by and large a contractual appointment for a fixed period – Appointment of a Public Prosecutor is a serious business as the person who is appointed remain in-charge to represent State in all criminal cases arising in the district and he discharges public duty – At the same time, action of State should be reasonable and non-arbitrary to satisfy test of reasonableness enshrined in Article 14 of Constitution of India – Protection of public interests in best possible manner is primary duty of Court – Public bodies are under obligation to society to take best possible steps to safeguard such interests, and as such obligation caste on State to engage most competent person to hold office of Public Prosecutor. (Paras 18, 19 and 20)
Criminal Procedure Code, 1973 – Section 24 – Bihar Practice and Procedure Manual – Rule 139 – Termination of tenure appointment as Public Prosecutor – There is no such situation has been envisaged under Section 24 of Code of Criminal Procedure to make temporary arrangement to office of Public Prosecutor, it only talks about appointment of Public Prosecutor on permanent basis – Status of Public Prosecutor Manual is not a law under Article 13 of Constitution of India, is mere an executive instructions and Collector does not have jurisdiction to act de hors to provision of Section 24 of Code of Criminal Procedure – Section 24 of Code of Criminal Procedure only obliges Collector to prepare list of Advocates in consultation with Sessions Judge, who are fit to be appointed as Public Prosecutor or Additional Public Prosecutor and send the same to Government and it is Government which has authority to appoint Public Prosecutor or Additional Public Prosecutor – It does not empower in any manner Collector to tinker or pass any order, thereby he can communicate person, who is holding office of Public Prosecutor, that he is no longer a Public Prosecutor and induct another person by way of temporary arrangement – Order passed by District Magistrate quashed. (Paras 30, 32 and 34)
Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for private respondent no.4.
2. In this case, the petitioner is challenging the order containing memo no.1531 dated 05.06.2018 (Annexure-4) passed by the District Magistrate, Darbhanga, whereby and where-under informed the petitioner that he was appointed for three years and after its expiry, his period in the office is over and in the same transaction by the same order, in exercise of power conferred under Clause-139 Bihar Practice & Procedure Manual, appointed Sri Binay Kimar Singh, Additional Public Prosecutor, as In-charge Public Prosecutor, Darbhanga.
3. The plea has been taken by the petitioner that the Collector, in exercise of power under Section 24 of the Cr.P.C. in consultation with the District Judge would prepare the panel of lawyers and that panel will be sent to the Government for appointment of Public Prosecutor and Additional Public Prosecutor, the Collector does not have power either to appoint or remove Public Prosecutor or Additional Public Prosecutor or appoint regular Public Prosecutor or temporary Public Prosecutor or to make a local arrangement in the manner it has been done by the impugned order dated 05.06.2018.
4. The short facts of this case are that vide letter containing memo no.713 dated 30.01.2015 (Annexure-1) the petitioner, namely Nasiruddin Haider was appointed as Public Prosecutor for three years. The first year has been treated as probation period and rest two years have been treated to substantive period of engagement. In the said letter, it has further been mentioned, on his appointment as Public Prosecutor, if he was holding any of the posts as Additional Public Prosecutor, Special Public Prosecutor, Government Advocate, Assistant Government Advocate, will be treated to have vacated and during that period he was authorized to represent the State of Bihar in all criminal cases, which would arise in the District of Darbhanga. After the expiry of three years, a letter dated 05.06.2018 (Annexure-4) has been issued by the Collector, whereby, the petitioner has been removed/ousted from the Post of Public Prosecutor and in his place Sri Vinay Kumar Singh, private respondent no.4, has been appointed.
5. In order to substantiate his case, learned counsel for the petitioner submits that the appointment of Public Prosecutor is a serious business, he is holding a very important office, discharging the function as a first Law Officer for the Darbhnaga district for conducting criminal cases. The Collector is bereft of power to remove the petitioner from the post of Public Prosecutor and in his place appoint Sri Vinay Kumar Singh, so the impugned order per se is illegal, void and not sustainable in law.
6. Learned counsel for the petitioner has placed reliance on the decision rendered in the case of State of Punjab and Anr. vs. Brijeshwar Singh Chahal and Anr. reported in 2016 (2) PLJR 267 (S.C.); Dinesh vs. The Union of India and Ors. reported in 2016 (4) PLJR 1131; order of this Court dated 12.07.2018 passed in L.P.A. No.402 of 2018 and the order dated 26.02.2018 passed in C.W.J.C. No.10661 of 2017.
7. Learned counsel for the petitioner has also placed reliance on the decision rendered in the case of Reji Kumar and others vs. Director of Health Services, Kerala and Others reported in (2009) 16 SCC 385 dealing with the efficacy of the post of Public Prosecutor.
8. In contra, learned counsel for private respondent no.4, Sri Vinay Kumar Singh, submits that the prayer which has been made by the petitioner is not entertainable on the ground that the person claiming to continue to hold the post of Public Prosecutor must have a legal right, as the petitioner was appointed as Public Prosecutor for a fixed period, after its expiry, the Collector has only communicated that he ceases to be the Public Prosecutor. The claim of the petitioner to allow him to hold the office is nothing but illegal usurpation of the office,
