DHIRA DEVI Vs. JAMALUDDIN KHAN AND ORS.

JUDGEMENT

(1.) The sole question which falls for consideration in this appeal is whether the learned Single Judge was correct in holding that there was violation of Section 24 of the Code of Criminal Procedure, 1973 (CrPC) in the appointment of the appellant inasmuch as the consultation between the District Magistrate, Barpeta (respondent and the learned Sessions Judge, Barpeta was not reduced to writing. The material facts are hardly in dispute. Suffice it to say that the appellant (the respondent No. 5 in the writ petition) was appointed as the Assistant Public Prosecutor, Bajali on 2-6-2012 till her engagement as Additional Public Prosecutor on 20-2-2015 after replacing the respondent No. 1 (the writ petitioner). The respondent No. 1 had been appointed as Additional Public Prosecutor, Bajali on 29-8-2002. It would appear that the respondent 2 issued the WT message dated 19-1-2012 to the respondent 5 requesting him to furnish a fresh panel of Advocate at the ration of 1:3 for appointment to the post of Additional Public Prosecutor (0ne post) and the post of Assistant Government Advocate (one post), which was marked to the Chief Judicial Magistrate, Barpeta and the Sub-Divisional Judicial Magistrate, Barpeta. The Sub-Divisional Judicial Magistrate, (M) Bajali thereafter forwarded a panel of advocates through the letter dated 7-3-2014 to the respondent No. 4 three names for the posts of Additional Public Prosecutor and Assistant Government Pleader/Advocate by maintaining the ration of 1:3 excluding the name of the respondent No. 1. These three names were then forwarded by the respondent No. 5 to the respondent No. 2 for the appointment to the said posts vide the letter dated 1-4-2014. After receiving the aforesaid communication, the respondent No. 4 issued the Notification dated 2-2- 2015 relieving the respondent No. 1 from the post of Additional Public Prosecutor, Bajali and also relieving the appellant from the post of Assistant Public Prosecutor, Bajali with immediate effect. Another Notification was issued on the same day appointing the appellant as the Additional Public Prosecutor, Bajali. Following the latter notification, the appellant joined the post of Additional Public Prosecutor in the Court of the Additional Sessions Judge, Bajali on 20-2-2015. Aggrieved by this, the respondent No. 1 filed WP(C) No. 1598/15 before this Court, and the learned Single Judge by the impugned judgment allowed the writ petition, quashed the appointment of the appellant and remanded the case to the respondent authorities for decision in accordance with law.

(2.) We have heard Mr. M.K. Choudhury, the learned senior counsel for the petitioner, assisted by Mr. H.K. Das, the learned counsel for the appellant, Mrs. B. Goyal, the learned Government Advocate representing the State of Assam and Mr. H. Ali, the learned counsel for the respondent No. 1. The first contention of the learned senior counsel is that the learned Single Judge has completely overlooked the fact that the panel had been prepared by the Deputy Commissioner, Barpeta, after following the procedure laid down in Section 24 Cr.PC and after consulting the District & Sessions Judge, Barpeta and has in the process erroneously come to the conclusion that no such consultation had taken place: the original record with respect to the said consultative process ought to have been perused by the learned Single Judge before coming to such conclusion. He further maintains that Section 24 CrPC nowhere requires such consultation to be reduced into writing in the form of minutes; the consultation between the Deputy Commissioner and the Sessions Judge is in conformity with the law laid down by the Apex Court in State of U.P. v. Johri Mal, 2004 4 SCC 714 as the nature of appointment of Additional Public Prosecutor is in the nature of professional engagement. According to the learned Single Judge, the learned Single Judge completely misunderstood the meaning of the term "consultation" when no uniform meaning can be given to such word, which would vary depending upon the situation and the context in which the word appears in the Constitution or in an enactment or rule or regulation: this alone will entail the interference of this Court.

(3.) Mrs. B. Goyal, the learned Government Advocate, Assam, supports the impugned decision and submits that there was no illegality in the appointment process of the respondent No. 1 as the same was done in accordance with the provisions of Section 24(4) and (5) CrPC by preparing a panel of advocates by the Deputy Commissioner, Barpeta in consultation with the Sessions Judge, Barpeta. She submits that the appellant had been continuing as the Additional Public Prosecutor, Barpeta for about 13 years and has no vested right to continue to remain there perpetually; no legal right of the appellant is violated by terminating his engagement. Mr. H. Ali, the learned counsel for the respondent No. 1 supports the impugned judgment and submits that no interference is called for. According to him, there was violation of Section 24 CrPC in the appointment of the appellant as the Additional Public Prosecutor as the same was not done after due consultation between the Deputy Commissioner, Barpeta and the Sessions Judge, Barpeta. The learned Single Judge has, therefore, rightly quashed the appointment of the appellant as there were no record showing that consultation process had taken place between the Deputy Commissioner, Barpeta and the Sessions Judge, Barpeta consistent with the requirement of Section 24(4) and (5) CrPC, for which the interference of this Court is not called for.