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Gauhati High Court · body

1994 DIGILAW 70 (GAU)

Kevireizeu Kerhuo v. State of Nagaland and Ors.

1994-04-19

H.K.SEMA

body1994
In this writ petition, petitioner is seeking a writ of Mandamus for quashing the appointment of the respondent No. 4 as Assistant Public Prose­cutor on contract basis. 2. By an order dated 15th December, 1993, respondent No. 4 has been appointed to the post of Assistant Public Prosecutor on contract basis for a period of one year and posted at Tuensang. The aforesaid appointment has been assailed on the ground that there is a rule called the Recruitment Rules of Public Prosecutor or Additional Public Prosecutor/Assistant Public Prosecutor Rules, 1981 and the aforesaid appointment has been made in contravention of the said Rules. 3. I have heard Mr. Iralu, learned counsel for the petitioner, Mr. EY Renthungo, learned Junior Govt. Advocate for respondent No. 1,2 and 3 and Mr. Imti Longchar for the fourth respondent. 4. In exercise of the powers, under proviso to Article 309 of the destitu­tion of India, the Governor of Nagaland framed Rules called the Recruitment Rules of Public Prosecutor or Additional Public Prosecutor/Assistant Public Prosecutor Rules, 1981 (hereinafter Rules.) In column 7 of the Schedule appended to the Rules, education and other qualification required for direct recruitment has been prescribed, and say; (1) Degree in Arts, Science or Com­merce, (2) Degree in law, LLB or BL, (3) Knowledge of local dialect desirable for the post of Public Prosecutor. For the post of Assistant Public Prosecu­tor, Degree in Law, LLB or BL, two years practice at Bar, knowledge of local dialect desirable, (emphasis supplied). In column 10 of the Schedule. 100% by promotion in respect of Public Prosecutor and Additional Public Prosecutor, and 100% by direct recruitment in respect of Assistant Public Prosecutor. In column 13 of the Schedule the method of recruitment is through the Nagaland Public Service Commission. 5. It is submitted by Mr. Iralu that the respondent No. 4 enrolled himself in the Bar in September, 1993 and he was appointed to the post of Assistant Public Prosecutor on 15th December, 199-i in contravention of the said recruitment rules inasmuch as the fourth respondent has not practice at the Bar for two years as on 15th December, 1993. There is no dispute at the Bar that the fourth respondent enrolled himself in the Bar some time in September, 1993 and he was appointed to the post of Assistant Public Prosecutor on 15th December, 1993. It is also not disputed by Mr. There is no dispute at the Bar that the fourth respondent enrolled himself in the Bar some time in September, 1993 and he was appointed to the post of Assistant Public Prosecutor on 15th December, 1993. It is also not disputed by Mr. EY Renthungo, learned Junior Government Advocate that according to the Recruitment Rules 1981, the fourth respondent does not possess the requisite qualification ie two years practice at the Bar at the time he was appointed to the post of APP. Mr. Renthungo however submits that the arrangement was made purely to meet the exigency of the administration because the incumbent who was holding the post as APP was appointed as Judicial Magistrate First Class on deputation. Mr. Renthungo therefore, submits that although the fourth respondent does not possess requisite qualification under the Rules for appointment to the post of APP he should be allowed to continue till the post is filled up on regular basis. 6. Fourth respondent has filed counter through Mr. Imti Longchar and the counsel is also heard at length. It is contended by Mr. Longchar that the qualification prescribed under the Rules, namely; two years practice at the Bar in column 7 of the Schedule appended to the Rules is applicable only in the case of direct recruitment through NPSC and it is not applicable in case of contract appointment. It is further contended by Mr. Imti Longchar that the appointment of the fourth respondent is not against the regular vacancy and therefore the requirement as enjoined under the column 7, 10 and 13 of the Schedule appended to the Rules would not be applicable . 7. The submission that the Rules prescribed for requisite qualification for appointment to a particular post would not be applicable to a case of contract appointment in the same post is thoroughly misconstrued because if a person does not possess requisite qualification for direct recruitment to the post, he cannot also be appointed on contract basis in the same post for want of requisite qualification. The question here is, whether the fourth res­pondent possess requisite qualification namely; two years practice at the Bar at the time of his appointment to the post of Assistant Public Prosecutor on contract basis. The question here is, whether the fourth res­pondent possess requisite qualification namely; two years practice at the Bar at the time of his appointment to the post of Assistant Public Prosecutor on contract basis. It the fourth respondent did not possess the requisite qualifica­tion, two years practice at the Bar for direct recruitment he could not also be considered for appointment on contract basis because the question is suitability of a person to hold a particular post. 8. Admittedly, the fourth respondent enrolled himself in the Bar some time in September, 1993. He was appointed to the post of Assistant Public Prosecutor by an order dated 15th December, 1993. Therefore, he cannot said to have been practiced at the Bar for two years as visualised under column 7 of Schedule appended to the Rules. 9. By now it is well settled principle of law by a catena of decisions of the Apex Court as well as by this Court that the rules framed are to be followed and not to be violated. More than once, it has also been said that once the Rules are framed it has to be followed strictly. In the instant case, the appointment of fourth respondent to the post of APP is in contravention of column 7 of the Schedule appended to the Rules. 10. The argument of Mr. Imti Longchar that the requirements of column 7 of Schedule appended to the Rules is not necessary for appointment or the fourth respondent on contract basis has no force. Because, it the fourth respondent does not possess requisite qualification for direct recruitment to the post of APP he cannot also be appointed on contract basis for want of requisite qualification. 11. I shall constrained to add here that the post of APP in the district is very important and responsible post. He is the Principal Law Officer of the district defending the interest of the State. Keeping in view of this impor­tant function of the APP in the district, the rule making authority purposely prescribed two years practice at the Bar as requisite qualification so that he may acquire some practical knowledge of law before he assumes office and discharge onerous duties, in order that public interest may not be jeopardised. We cannot afford to sacrifice the Rules and the interest of public for the sake of individual employment opportunity. 12. We cannot afford to sacrifice the Rules and the interest of public for the sake of individual employment opportunity. 12. In the result, the order dated 15th December, 1993 appointing the fourth respondent as Assistant Public Prosecutor on contract basis is hereby quashed and set aside. Needless to say that the respondents may resort to advertise the post and make selection on the basis of column 7, 10 and 13 of the Schedule appended to the Rules. 13. Before I part with the record, I am astonished to notice educational and other qualification prescribed for the post of Public Prosecutor in column 7 of the Schedule appended to the Rules. The first qualification prescribed for the post of Public Prosecutor is Degree in Arts, Science or Commerce. I am unable to comprehend as to how a Degree in Arts, Science or Commerce would be fitted in the post of Public Prosecutor which requires the knowledge of law as essential qualification. I am of the view that the education qualifi­cation in serial No. 1 was futile exercise of powers and not called for. It is high time that 1981 Rules needs a fresh look. With the aforesaid direction and observation, this petition is allowed. No costs. 14. Despite of quashing of the appointment order of the fourth respon­dent, it is submitted by Mr. Imti Longchar that interim order was passed on 6.1.94 but the fourth respondent had taken charge on 4th January, 1994 and worked upto 30th March, 1994 and pray that his pay and allowances for the period may be released to the fourth respondent. If that be the factual position, the fourth respondent may be paid his pay and allowance for the period from 4th January, 1994 to 30th March 1994. Order accordingly. A copy of this judgment may be endorsed to Secretary, Law for necessary action.