HARIHAR PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) R. A. Sharma, J. What are the dates with reference to which the seniority of ad hoc Assistant Prosecuting Officers ap pointed in 1977/1978 and the temporary As sistant Prosecuting Officers appointed in 1984/1985, is to be determined, is the ques tion involved in this writ petition.

(2.) BEFORE the commencement of the Code of Criminal Procedure, 1973 Public Prosecutors used to be appointed under the Police Act and the Regulations framed thereunder. Section 25 of the said Code banned the appointment of the police offi cials as Assistant Public Prosecutors. The Government of U. P. accordingly framed rules known as the Uttar Pradesh (Appoint ment of Assistant Public Prosecutors) Rules, 1974 (hereinafter referred to as the 1974 Rules ). Rule 3 provided for absorption of the existing Public Prosecutors and Assis tant Public Prosecutors. Rule 4 deals with the appointment of Assistant public Prosecutors in future. The post of Assistant Public Prosecutors was redesignated as As sistant Prosecuting Officers (hereinafter referred to as APO's ). The Government ap pointed a number of, AP. O's. on ad hoc/temporary basis. Vide order dated 8-2-1977, 192 ad hoc/temporary AP. O's. were appointed by the Government and vide another order passed on 24-12-1977, 51 more such officers were appointed on similar terms and conditions. Respondents No. 4 to 222 to this writ petition are the A. P. O's. appointed in 1977/1978 by the aforementioned orders. All these appoint ments were made initially for a period of one year or till regularly selected candidates join the posts, whichever is earlier. But the periods of their appointments were ex tended from time to time. In 1980 tem porary posts of A. P. O's. were confirmed and on 27-11-1980 Directorate of Prosecution was constituted by the State Government. Earlier the AP. O's. posts were not within the purview of the U. P. Public Service Com mission (hereinafter referred to as the Com mission), but on 27-1-1980 they were brought within the purview of the Commis sion.

(3.) AS before the declaration of the result of the examination of AP. O's. by the Commission, the Regularisation Rules have been amended giving benefits of regularisation of service to all ad hoc appointees, who were appointed before 1-5-1983, the Government did not make any appointment on the basis of the recommendation of the Commission dated 24-3-1984. On 17-4-1984 the Government constituted a Selec tion Commission for considering the cases of regularisation of ad hoc A. P. Os. ap pointed in 1977/1978. However, the Selec tion Committee could not do much in the matter initially due to non-availability of the service records and thereafter because of the interim orders granted by this Court in several writ petitions filed from time to time, reference of which has been given in the counter-affidavit filed on behalf of the State. Reference of some of the writ peti tions has also been given in the writ petition as well as in the counter-affidavit filed by private respondents. AS illustration it may be mentioned that writ petition No. 1146 of 1984 was filed in which an interim order was passed staying the appointments under the Regularisation Rules. Yet another writ peti tion No. 1483 of 1985 was filed on 15-4-1985 in which similar interim order was passed. The stay order in writ petition No. 1146 of 1984 was vacated on 3-9-1985, but the stay order in other writ petition remained in force. On 21-1-1987 another writ petition No. 491 of 1987 was filed in which also stay was granted, which was vacated on 5-5-1993. AS the service of ad-hoc AP. O's. could not be regularised in view of the interim orders passed by this Court in writ petitions filed from time to time, the Government ap pointed on 28- 12-1984, 178 candidates from the list of the candidates sent by the Com mission on temporary basis, subject to the orders which may be passed by this Court in pending writ petitions. It was further men tioned in the appointment order that the question of their seniority will be decided latter on. On 25-1-1985 and5-2-1985 30 and 8 more such appointments were made on similar conditions.