SAMARENDRA DAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The question before us is : Whether the post of Assistant Public Prosecutor (hereinafter referred to as "APP") was a Civil Post under the State of West Bengal in terms of Section 15 of the Administrative Tribunals Act, 1985.

(2.) By Notification dated 9th April, 1975, the Governor of West Bengal was pleased to appoint the petitioner to act as an Assistant Public Prosecutor with effect from of his assuming charge in the Court of Judicial Magistrate, Malda. The Notification was issued in exercise of the powers conferred by section 25(1) of the Code of Criminal Procedure, 1973. The petitioner took charge as Assistant Public Prosecutor on 23rd April, 1975. On 29th January, 1977, he was posted in the Court of Chief Judicial Magistrate at Malda as Assistant Public Prosecutor. During this period the petitioner completed two years probation. As per Rule 4(d) of the Assistant Public Prosecutors (Qualifications, Method of Recruitment and Conditions of Service) Rules, 1974, on 31st March, 1978 he was appointed as Assistant Public Prosecutor in the Court of Judicial Magistrate at Malda. However, his services were terminated by the Governor of West Bengal with an order No. 21144-J dated 22nd September, 1979 which order was communicated to him by the Administrative Magistrate, Malda with a Memo No. 1680-J dated 25th September, 1979 along with a cheque for Rs. 777.70/- as one month's salary in lieu of notice as required under Rule 34B(2) of the West Bengal Service Rules 1971. Suffice it to state that the petitioner being aggrieved and dissatisfied by the impugned orders filed a Writ Petition in the High Court. By judgment and order dated 25th February, 1999, the learned single Judge allowed the Writ Petition and the impugned order of termination of service was set aside. Being aggrieved, State of West Bengal went in appeal to the Division Bench of the High Court which took the view that the petitioner was not an officer or servant of the Court subordinate to the High Court; that the petitioner had worked as Assistant Public Prosecutor and as Assistant Public Prosecutor he was merely assisting the Court of Judicial Magistrate on behalf of the State of West Bengal. By the impugned judgment, the Division Bench following the decision of the Apex Court in L. Chandra Kumar v. Union of India and others, (AIR 1997 SC 1127) came to the conclusion that it was not open to the petitioner to directly approach the High Court under Article 226 of the Constitution. The Division Bench further took the view that the learned single Judge had no jurisdiction to entertain, try and hear the writ petition filed by the petitioner after coming into force of the Administrative Tribunals Act, 1985 and, consequently, the Division Bench transferred the matter to the State Administrative Tribunal for disposal. Being aggrieved by the impugned judgment and order passed by the Division Bench dated 14th January, 2003, the petitioner has moved this Court by way of Special Leave Petition under Article 136 of the Constitution.

(3.) The short point for determination is whether the post of APP was a Civil Post under Section 15 of the Administrative Tribunals Act, 1985, (hereinafter referred to for the sake and gravity "the said Act, 1985").