The central legal point established in the judgment is the petitioner's ineligibility for appointment as an Additional Public Prosecutor after the expiration of his term, as per the relevant rules and provisions.

ORDER :

1. The challenge in this petition, under Article 226 of the Constitution of India, is to the notification dated 18.05.2018 issued by the legal department, State of Gujarat by which the petitioner’s tenure of appointment to the post of Additional Public Prosecutor which had otherwise ended on 05.01.2014 has been extended upto 15.01.2014.

2. Facts in brief would indicate that the petitioner was appointed as an Additional Public Prosecutor under Section 24(3) of the Cr.P.C for Surendranagar district for a period of two years by a notification dated 03.01.2009. The petitioner joined his duties on 07.01.2009. 2.1 Since the term was upto 06.01.2011, by a notification dated 17.02.2011, in exercise of powers under Section 24(3) of the Cr.P.C, the same was extended from 06.01.2011 for a period of one year i.e. upto 05.01.2012. By a notification of 30.05.2012, once again in exercise of powers under Section 24(3) of the Cr.P.C read with the Law Officers (Appointment and Conditions of Service) and Conduct of Legal Affairs of the Government Rules, 2009 (for short ‘Rules of 2009’), the term was extended from 06.01.2012 for a period of two years i.e. upto 05.01.2014. A formal declaration of the cessation of the petitioner’s tenure on 05.01.2014 was made by a notification dated 14.03.2014. The petitioner’s date of birth being 23.08.1957, as per the rules of 2009, the petitioner would be ineligible for appointment on attaining the age of 55.

2.2 By a notification dated 18.05.2018, the State through its legal department, issued a notification treating the term of the petitioner as being extended upto 15.01.2014 which is the subject matter of challenge.

3. Mr. K.B. Pujara, learned advocate for the petitioner would submit as under:

(a) That the issuance of the notification dated 18.05.2018 is vitiated by colourable exercise of power and by factual and legal malafide. The petitioner, according to Mr. Pujara is falsely implicated as an accused in an ACB trap laid on 15.01.2014 for which FIR was registered vide C.R. No./ 1/2014 of Surendranagar ACB Police Station for offence under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 though the petitioner was not a ‘public servant’ at that point of time.

(b) That the investigating agency wanted to prosecute the petitioner anyhow by filing a charge-sheet against the petitioner on the basis of he being a public servant and with a oblique motive to do so to bring him under the definition thereof wrote several letters so that the term of the petitioner be extended for ten days for the period from 05.01.2014 to 15.01.2014.

(c) Inviting the court’s attention to several communications annexed to the petition and reading the communication dated 26.06.2015 addressed by the District Government Pleader to the Police Inspector of the ACB Police Station, he would submit that in response to the Police Inspector’s letter to seek information, the District Government Pleader opined that the legal department had been informed by a letter dated 30.10.2013 that the term of the petitioner was expiring on 05.01.2014 and in accordance with the resolution of 11.12.2003 unless the same is discontinued, he would continue to be discharging his duties as APP. That the petitioner had discharged his duties as APP till 15.01.2014.

(d) Inviting the attention also to the communication of the Police Inspector to the legal consultant of the ACB Rajkot, he would point out that in the aforesaid communication the Police Inspector had expressed reservations as to whether a final report can be submitted in case of the petitioner in absence of extension of his term and therefore repeated requests had been made to the legal department to amend the notification accordingly.

(e) Relying on Rule 4(6) of the Rules of 2009, he would submit that the appointment of the Public Prosecutor and the Additional Public Prosecutor has to be made in accordance with sub-section 3 of Section 24 of the Cr.P.C. Rule 5 deals with the qualific