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SUPREME COURT OF INDIA
R.M. LODHA, ANIL R. DAVE, RANJAN GOGOI, JJ.
DEEPAK AGGARWAL – Appellants.
VERSUS
KESHAV KAUSHIK AND OTHERS – Respondent
Civil Appeal No. 561-596 of 2013
Decided On : 21-1-2013.
AIR 1966 SC 1987; (1985) 1 SCC 225; AIR 1961 SC 816- Relied upon
(b) Code of Criminal Procedure, 1973 - Section 25 r/w Advocates Act 1961 and BCI Rules - Public Prosecutors - Public prosecutors though appointed by Government remain professionals and do not become employees - A law officer (Public Prosecutor or Government Pleader) would continue to be an advocate - They would be eligible under Article 233(2). (Paras 49 to 51)
(1994) 2 SCC 204; 1995 Supp (3) SCC 37; (1999) 1 SCC 330; (2004) 4 SCC 714; (2009) 8 SCC 273; Civil Appeal Nos. 947-956 of 2003; (1995) 6 SCC 527; (2004) 2 SCC 274 - Relied upon
(1986) Lab. IC710; 2008 (2) MPLJ 486; 2010-4-L.W.454; (2008) Lab.IC 1784 - Cited with approval
(1991) 1 SCC 212 - distinguished
(c) Administration of Justice - Judicial propriety - After conclusion of arguments respondents circulating a judgment - Cannot be considered on two counts - Petitioners did not have occasion to respond to or explain it - Secondly the persons aggrieved by that judgment who are not before the Court may be advised to challenge the same - Considering the judgment would be foreclosing options of those persons. (Para 64)
(d) Code of Criminal procedure, 1973 - Sections 24 and 25 - Public Prosecutors - State being the prosecutor, public prosecutor carries a primary position - In an appointment of Public Prosecutor, the principle of master-servant does not apply; such an appointment is not an appointment to a civil post. (Paras 71 and 73)
(1988) 3 SCC 144; (2010) 6 SCC 1; (1999) 7 SCC 467; (1994) 4 SCC 602; (2012) 3 SCC 117; (2010) 6 SCC 1; (1987) 1 SCC 288 - Relied upon
295 U.S. 78 - Referred
(e) Code of Criminal procedure, 1973 - Sections 2(u) 25 - Assistant Public Prosecutor - Not included in definition of public prosecutor in section 2(u) - Post of Assistant Public Prosecutor is a civil post - Public Prosecutor and Assistant Public Prosecutor both remain to be advocate - Rendering of service as a Public Prosecutor or as Assistant Public Prosecutor is deemed to be practice as an advocate. (Paras 74)
(2004) 2 SCC 274; (2004) 4 SCC 714 - Relied upon
(f) Bar Council of India Rules - Rule 49 - Lawyers in full time employment of Government or public bodies - Pleading cases for their employers - They continue to be advocates within the meaning of Article 233(2). (Paras 78, 84 and 85)
(g) Constitution of India - Article 233(2) - If he has been for not less than seven years an advocate - Use of "has been" - Means seven years immediately preceding the application and continuing - Not any time in the past. (Para 88)
(1994) 2 SCC 204; (1999) 1 SCC 330; (2001) 2 SCC 365; AIR 1979 SC 1871; (1995) 6 SCC 527 - Relied upon
2002 (4) Karnataka Law Journal 76 - Cited with approval
Facts of the case:
The questions raised in these appeals are:
1. What is the meaning of the expression the service in Article 233(2) of the Constitution of India?
2. What is meant by advocate or pleader under Article 233(2)? and,
3. Whether a District Attorney/Additional District Attorney/Public Prosecutor/Assistant Public Prosecutor/Assistant Advocate General, who is full time employee of the Government and governed and regulated by the statutory rules of the State and is appointed by direct recruitment through the Public Service Commission, is eligible for appointment to the post of District Judge under Article 233(2) of the Constitution?
Finding of the Court:
The five private appellants (Respondent Nos. 9,12,13,15 and 18 in CWP No. 9157/2008 before the High Court) fulfilled the eligibility under Article 233(2) of the Constitution and Rule 11(b) of the HSJS Rules on the date of application. The impugned judgment as regards them is liable to be set aside.
Result : Appeals allowed.
This case primarily concerns the legal status and qualifications of prosecutors, particularly Public Prosecutors and their role in the judicial process, including the post-trial stage. It establishes that Public Prosecutors are statutory officers of the State, entrusted with the responsibility of ensuring justice rather than merely representing the prosecution. Their duties extend beyond the act of prosecuting to include safeguarding the rights of the accused, ensuring fair trials, and maintaining the integrity of the judicial process. The role of a Prosecutor in the post-trial stage involves not only presenting evidence during the trial but also ensuring that justice is served through proper conduct in appeals and other proceedings, safeguarding human rights, and upholding ethical standards. The Prosecutor must act independently, impartially, and fairly, respecting human dignity and the principles of justice at all times. Their functions are rooted in statutory provisions, emphasizing their duty to serve the public interest and uphold the rule of law. The case underscores that the integrity and independence of Prosecutors are vital for the fair administration of justice, particularly after the conclusion of the trial, including during appeals and review processes.
JUDGMENT
R.M. Lodha, J.:-
1. Leave granted. What is the meaning of the expression ‘the service’ in Article 233(2) of the Constitution of India? What is meant by ‘advocate’ or ‘pleader’ under Article 233(2)? Whether a District Attorney/Additional District Attorney/Public Prosecutor/Assistant Public Prosecutor/Assistant Advocate General, who is full time employee of the Government and governed and regulated by the statutory rules of the State and is appointed by direct recruitment through the Public Service Commission, is eligible for appointment to the post of District Judge under Article 233(2) of the Constitution? These are the questions which have been raised for consideration in this group of appeals.
2. The above questions and some other incidental questions in these appeals have arisen from the judgment of the Punjab and Haryana High Court delivered on 18.05.2010. The Division Bench of the High Court by the above judgment disposed of 12 writ petitions wherein challenge was laid to the selection and appointment of certain candidates to the post of Additional District and Sessions Judge in the Haryana Superior Judicial Service (HSJS) on diverse grounds. The High Court by its judgment disposed of the writ petitions in the following manner :
“(A) Selections/appointments of respondents no. 9 – (Dinesh Kumar Mittal), 12 (Rajesh Malhotra), 13 (Deepak Aggarwal), 15 (Chandra Shekhar) and 18 (Desh Raj Chalia) in CWP No. 9157 of 2008 (wherever they may be in other writ petitions) as Additional District and Sessions Judges, are hereby quashed. This direction shall, however, remain in abeyance for a period of two months to enable the High Court to make alternative arrangements;
(B) As a consequence of the quashment of the selections/appointments of above named respondents, the resultant five vacancies shall be filled up from the candidates next in the order of merit, out of the panel prepared by the Selection Committee;
(C) The appointment of Fast Track Court Judges by a process of absorption after further examination and selection contained in the recommendation of the Selection Committee dated 18.03.2008 is affirmed.
(D) Order dated 22.09.2008 (Annexure P-8 in CWP No. 17708 of 2008 rejecting the request of the High Court for de- reservation of six vacancies (four Scheduled Caste, 2 Backward Classes) is hereby quashed. Resultantly, the matter is remitted back to the Government to re-consider the request of the High Court for de-reservation in relaxation of rules by the competent authority empowered under the Government instructions dated 7.9.2008 and Rule 31 of the Haryana Superior Judicial Service Rules, 2007. The process of re-consideration shall be completed within six weeks and the decision be communicated to the High Court.
(E) If on such re-consideration, the State decides to de- reserve the vacancies, candidates recommended by the High Court vide its recommendation letter dated 25.4.2008, shall be appointed.”
3. The appellants in this group of seven appeals are, Deepak Aggarwal, Dinesh Kumar Mittal, Rajesh Malhotra, Chandra Shekhar and Desh Raj Chalia, whose selections/appointments as Additional District and Sessions Judges have been quashed by the High Court, and the Punjab and Haryana High Court, Chandigarh on its administrative side.
4. On 18.05.2007, the Punjab and Haryana High Court, Chandigarh through its Registrar General issued a notification inviting applications for recruitment to certain posts of Additional District and Sessions Judge. The written examinations were conducted pursuant to the said notification wherein 64 candidates were recommended for the interview. After conducting the interview, the High Court recommended the names of 16 candidates in order of merit to the post of Additional District and Sessions Judge in the State of Haryana by direct recruitment. Of the 16 candidates recommended by the High Court,
5 were the appellants. At the time of appointment, Deepak Aggarwal was working as Assistant District
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