Research › Search › Judgment

J&K High Court · body

2008 DIGILAW 75 (JK)

Hussan Ahmed Farooqi v. State Of J. &K.

2008-03-25

Y.P.NARGOTRA

body2008
1. The common question arising in this batch of writ petitions is as to what should be the minimum and maximum age necessarily to be possessed by a candidate for being eligible to be appointed as a Prosecuting Officer. 2. The Director General of Police vide his advertisement Notice dated 25.10.2007 invited applications as per the prescribed proforma from the permanent residents of J&K State for the post of Prosecuting Officer in J&K Police in the pay scale of Rs.6500-200-10500 plus usual allowances as admissible from time to time. The minimum educational qualification, age and physical standard for the post have been prescribed as follows: I. Educational Qualification i. Bachelors Degree from any recognized Univesity ii. Degree in Law II. Age The candidate must be within the age group of 18-30 years as on first day of January 2007. (The candidates born before 01.01.1977 and after 31.12.1998 shall not be eligible). III. Physical Standard For Male candidates (a) Height = 5-6" (minimum) (b) Chest = 32" unexpanded (minimum) 33 1/2 Expanded (minimum) For Female Candidates (a) Height = 5-2" (However, candidates belonging to Leh and Kargil districts, the minimum height for male candidates shall be 5-4" and for female 5). 3. The writ petitioners, who are aspirant for the post of Prosecuting Officer, though do not fulfill the age requirement as per the advertisement notice, yet have offered their candidature. Apprehending that their candidature would not be accepted, they have filed the instant writ petitions. Their case is that the age prescribed for acquiring the eligibility for the post of Prosecuting Officer is not in consonance with the age prescribed in terms of Article 37 of Civil Service Regulations. They, therefore, have prayed that the prescribed requirement of age by the advertisement notice should be quashed and they be declared as eligible for the said post. 4. The case of respondents shortly put is that the age requirement prescribed by the advertisement notice is in accordance with Rule 176 of Police Rules, which prescribes the age, qualification etc. for the said post. Therefore, the prescribed eligibility for age by the advertisement notice is legally valid. 5. 4. The case of respondents shortly put is that the age requirement prescribed by the advertisement notice is in accordance with Rule 176 of Police Rules, which prescribes the age, qualification etc. for the said post. Therefore, the prescribed eligibility for age by the advertisement notice is legally valid. 5. Power to investigate into cognizable cases has been vested with the officer-in-charge of a police station, which a court having jurisdiction over the local area within the local limits of such station would have power to enquire into or try in terms of Section 156(1) Cr.P.C. The police officer, who investigates into the case, submits his report after completion of the investigation to the Magistrate empowered to take cognizance of the offence on a police report as per the procedure prescribed under Section 173 Cr.P.C. Before the Magistrate, the police conducts the prosecution of the case through Police Prosecutors and if the Magistrate commits the case, which is exclusively triable by a Court of Sessions, to a Sessions Court in terms of Section 205-D, it is again the police which conducts the prosecution of the case in Sessions Court through Public Prosecutors. 6. Chapter 21 of Police Rules framed under the Police Act deals with the subject of prosecution and court duties. Rule 660 reads as follows: "66. Duties of public prosecutors (1) Government pleaders, who are ex-officio public prosecutors, are bound by the rules contained in the Law Department Manual. They shall not appear or advise against the State in Criminal cases. They are allowed to undertake private civil practice, but are under the direct orders and supervision of District Magistrates and may be appointed to work continuously on any particular case. They are required to appear for the State in:- (a) all sessions cases; (b) all commitment cases where their appearance is necessary at headquarters and at out-stations when required by the District Magistrate; (c) all criminal appeals when required by the District Magistrate or Sessions Judge; (d) all original cases when required by the District Magistrate. (2) It is part of the duly of Public Prosecutors to give advice to Government officers on legal questions." Rule 661 provides as follows: "661. (2) It is part of the duly of Public Prosecutors to give advice to Government officers on legal questions." Rule 661 provides as follows: "661. Police officers as Public Prosecutors (1) All Deputy Inspectors-General, Superintendents and Assistant/Deputy Superintendents are, with reference to sections 270 and 492 of the Code of Criminal Procedure, ex-officio Public Prosecutors in respect of all cases committed from their respective districts for trial before the Court of Sessions. Where no Government Pleader (Public Prosecutors) has been appointed or when the services of the Government Pleader are not available, one of the Police Officers above-mentioned may conduct the prosecution in session trial, but the District Magistrate has power, in such circumstances, to appoint any other person to be Public Prosecutor for the purpose of a particular case. (2) Inspectors or Sub-Inspectors of police performing the functions of the prosecuting officers shall be Public Prosecutors for all cases inquired into or triable by a Magistrate throughout each district. (3) When the complainant in a criminal case instructs a legal practitioner to conduct the prosecution, such practitioner shall act under the instructions of the Public Prosecutor as defined in the preceding sub-rule and rule 660." 7. From the above rules, it is manifest that the police plays an important role in trial of the cases before the criminal courts. For prosecution of the criminal cases, in terms of Rule 670 there is a separate prosecuting agency. Rule 670 reads as follows: "670. Prosecuting Agency -- composition of (1) The Police Prosecuting Agency in each district shall consist of such number of officers, as may, from time to time, be sanctioned by the Government. (2) A Constable shall ordinarily be attached as Court Orderly to Court of every Magistrate, whether stipendiary or honorary, having first class or superior powers. The senior officer of the prosecuting branch shall arrange for the duty of Court Orderly in the courts, which sit only for short periods or at irregular intervals, to be performed by members of their staff, who may be available at the time required Clerks or Assistant Clerks of police stations may be employed, when necessary, to perform the duties of Court Orderly at Tehsil Courts. (3) In each district one of the Head Constables of the prosecuting staff shall be appointed as the direct assistant of the prosecuting officer for the purpose of maintaining the registers of case property prescribed in rule 672 and under the immediate supervision of the officer mentioned above, receiving, checking cataloguing and issuing to Court Orderlies exhibits and other property kept in the prosecuting agencys store room in connection with cases and unclaimed property. The duties of this Head Constable are purely subordinate and his assistants in a routine capacity in no degree relieve the Prosecuting Officers of their personal responsibility, as laid down in Form 173 for the correctness and security of the contents of the Malkhana." 8. Rule 671 deals with the duties of head of prosecuting agency. It reads as follows: 671. Duties of Head of Prosecuting Agency (1) At the headquarters of each district, there is an officer of the rank of an Inspector appointed as Senior Prosecuting Officer called Police Prosecutor. This officer in addition to performing the duties of a Head of a Prosecuting Agency of a district, as laid down in sub-rule (2), shall also perform the following duties:- (a) shall attend the Session Court in all police cases of his district; (b) shall argue appeals and revisions of al police cases in the Court of the District Magistrate and Additional District Magistrate; (c) shall prosecute any case in any court in his district; (d) shall carry out inspections of officers of Prosecuting Officers throughout the district if desired to do so by the Superintendent of Police. (2) At the District headquarters the duties of the Head of the Police Prosecuting Agency, whether he be a senior or junior Prosecuting Officer, shall be as follows:- (i) thoroughly to scrutinize Challans and intermediate references and applications from police stations in connection with the prosecution of cases, the arrest of offenders, the confiscation of bail or security bonds and other matters in which his advice or the orders of a court are required. The preparation for court and prosecution of all security cases, including security for keeping the peace, should receive as much attention from the district prosecution staff as is practicable; (ii) to prosecute, watch or direct the prosecution of cases in the courts of the district. The preparation for court and prosecution of all security cases, including security for keeping the peace, should receive as much attention from the district prosecution staff as is practicable; (ii) to prosecute, watch or direct the prosecution of cases in the courts of the district. In this connection it must be realized that his duty embraces not only the presentation of the prosecution case but contesting the claims of the defence and ensuring the observance of conditions and restrictions imposed by the law on the discretion of courts to pass orders in certain circumstances and the observance of all the orders of the High Court issued with the object of expediting decisions and preventing abuses; (iii) to supervise and distribute the work of prosecuting officers subordinate to him and of the police personnel attached to his office or the courts; (iv) to take charge of and deal with articles and property received in connection with cases, as well as unclaimed and suspicious property received from police stations for orders of the Magistrate; (v) to supervise the transmission of warrants and summonses to the executive police under the orders of the criminal courts and to see the returns to such processes are made without delay; (vi) to keep the Superintendent of Police inform of all important matters in connection with criminal cases under trial, to bring to notice cases requiring to be specially reported to him and to submit a diary daily in Form 165 showing cases sent for trial, convicted, discharged and pending in court on that particular day; (viii) to see that instructions in connection with the diet money and traveling expenses of witnesses are duly observed; (viii) to see that payments for bills submitted through him for all judicial expenses incurred by officers incharge of police stations are made promptly, either by the Nazir or from his own permanent advance. For this purpose he will maintain a register in Form 166. For this purpose he will maintain a register in Form 166. For all sums of money received from the Nazir a receipt must be given in Treasury Form 35 (Misc.); (ix) to see that the results of cases in court are promptly communicated to police stations concerned according to rule, and especially to bring to the notice of the Superintendent, together with an abstract or acquittal or discharge or other orders of court, which either reflect in any way on the conduct of the police or indicate that theory on which the case was prosecuted has broken down; (x) to keep in view the orders regarding the formation of a criminal museum at the Police Training School, and take the orders of the Superintendent for the acquisition of such weapons instruments or other articles connected with cases sent up for trial as may be considered useful as exhibits of educational value, and to forward them with a brief account of their use or object to the Principal, Police Training School; (xi) to supervise the work of the Crime Branchy of the Superintendent of Police and to exercise a close and constant check on the maintenance of the registers pertaining to the Prosecution Branch; (xiii) in the performance of these functions, the Head of the Prosecuting Agency may distribute work and delegate his duties among his subordinates to such extent as may be approved by the superintendent of Police and as is not inconsistent with any Police Rule or other order of a competent authority." 9. From the bare perusal of above rule, it is manifest that the officer of the rank of Inspector can be appointed as Sr. Prosecuting Officer to be called as Police Prosecutor. The duty of such Police Prosecutor primarily is to conduct the prosecution of cases in the Courts. 10. It is not in dispute that the police while implementing a reorganization scheme created an independent Police Prosecuting Agency in each district consisting of two Chief Prosecuting Officers -- one as Chief Prosecuting Officer (Districts) and the other as Chief Prosecuting Officer (Courts); one Sr. Prosecuting Officer and Prosecuting Officers almost equal in number of courts available in the district to be sanctioned by the Government. Similarly, the staff sanctioned for the office of Prosecutor at District level and Tehsil level is one Head Constable and two Constables. Prosecuting Officer and Prosecuting Officers almost equal in number of courts available in the district to be sanctioned by the Government. Similarly, the staff sanctioned for the office of Prosecutor at District level and Tehsil level is one Head Constable and two Constables. The comments appended to Rule 671 reads as follows: "At the headquarters of each district, there are two officers of the rank of Selection Grade Dy. SP appointed as Chief Prosecuting Officers called as CPO Courts and CPO District as head of the prosecuting agency in the district. The work of these officers is supervised by the Deputy Director at range level, by Joint Director at zone level and by the Director Prosecution at State level. CPO courts supervise the working of subordinate prosecutors at the district courts as well as prosecutes the important cases himself, where as CPO district sits in the office of District Superintendent of Police, acts as adviser to District SSP/SP and also conducts inspections of Prosecution units of the district. Senior prosecuting officer posted in the district is in the rank of Dy. SP, normally prosecute cases in CJM/Sub-Judge Court, whereas the POs appear in Munsiff/Sub-Judge Courts." 11. It is also not in dispute that except the post of Prosecuting Officer, which is in non-gazetted cadre, the other posts of Director, Joint Director, Deputy Director, Chief Prosecuting Officer and Sr. Prosecuting Officer are in the gazetted cadre of police. The recruitment to gazetted cadre posts is governed by recruitment rules called Jammu & Kashmir Police (Gazetted) Service Recruitment Rules, 2002 (hereinafter called 2002 Rules). Schedule-II (c) reads as follows: Prosecution Category of Post Grade Minimum qualification for direct recruitment Method of recruitment PROSECUTION I Director 16400-20000 ... By promotion from Class II with at least two years service as such. II Joint Director 12000-16500 ... By promotion from Class III with at least two years service as such. III Dy. Director 10000-15200 ... By promotion from Class IV with at least three years service as such. IV Chief Prosecuting Officer 9000-14100 ... By promotion from Class V with at least three years service as such. V Senior Prosecuting Officer 7500-12000 ... By promotion from the cadre of Prosecuting Officers of the non-gazetted Police Service with at least five years service as Prosecuting Officer. 12. The post of Sr. IV Chief Prosecuting Officer 9000-14100 ... By promotion from Class V with at least three years service as such. V Senior Prosecuting Officer 7500-12000 ... By promotion from the cadre of Prosecuting Officers of the non-gazetted Police Service with at least five years service as Prosecuting Officer. 12. The post of Sr. Prosecuting Officer under the above rules is filled up by promotion from the cadre of Prosecuting Officer of non-gazetted police service with at least five years service as Prosecuting Officer. No recruitment rules have been framed for recruitment of Prosecuting Officers. The post of Prosecuting Officer though is in the rank of Inspectors of Police, yet distinct in nature in view of nature of duties. They are one of the constituents of Prosecution Wing of Police Department. 13. The contention of Mr. Siddiqui, learned counsel for one of the writ petitioners and supported by counsel for other writ petitioners is that the post of Police Inspector is entirely a different post and, therefore, for recruitment and for the purposes of eligibility conditions is not covered by Rule 176 of Police Rules. He submits that the age requirement for the said post has to be in accordance with Rule 37 of Civil Service Articles. Whereas, the contention of Mr. Salathia, learned AAG, is that the Prosecuting Officers are in the rank of Inspector Police, therefore, the condition of eligibility as prescribed by Rule 176 of Police Rules applies to them. Article 37 reads as follows: "37. (1) Except in the case of direct recruits to (i) Kashmir Administrative Service (ii) Kashmir Police Service (iii) Kashmir Forest Service (iv) Kashmir Accounts Service, in which case the minimum and maximum age limits for recruitment, will be governed by the recruitment rules of the respective services, the age of direct recruits to Government service in the rest of subordinate and Gazetted Services shall not the first day of January of the year in which the competitive examination is held or the nomination is made in respect of the vacancy to which the direct recruitment is made, shall not be less than 18 years and shall not exceed 30 years: Provided that the maximum age for such recruitment to the posts shown below does not exceed the limit indicated against each. Gazetted Service 1. Kashmir Medical Service 32 years Non-Gazetted 1. 2. 3. Gazetted Service 1. Kashmir Medical Service 32 years Non-Gazetted 1. 2. 3. Police Sub-Inspectors Constables and Head Constables Subordinate posts in Fire Services 28 years 4. Shepherds of the Sheep Breeding and Sheep Development Department 35 years Provided that the upper age limits for entry into Government Service in respect of handicapped persons shall be relaxed by 5 years. The age limit may be relaxed by the competent authority. 37(2) Considering the limitation to which Scheduled Castes candidates are put, the age limit for direct recruitment in their case shall be 32 years against 32 years, except in cases where direct competitions are prescribed and in which case the maximum age limit for such candidates as may have been raised suitably for each service, in the respective recruitment rules, will apply. 37(3) Notwithstanding anything otherwise contained in Articles 37(1) and 27(2) the following maximum age limits shall apply (and shall always be deemed to have applied from 16.12.1998) in respect of direct recruits to Government service in all the subordinate and Gazetted services on the first day of the January of the year in which the competitive examination is held or nomination is made in respect of the vacancy to which direct recruitment is made: Category Maximum age (i)          General Candidates 35 years (ii)         Physically handicapped 37 years (iii)        Members of Scheduled Castes and Scheduled Tribes 38 years (iv)        Candidates already in Government service 38 years Provided that the age limits as shown above against each category may be relaxed by the competent authority in respect of any individual case on the merits of each case: Provided further that the Government may in respect of any particular service prescribe a different age limit. Note 1. -- This limit does not apply to the case of officers, who are engaged for some special period, or pensioners re-employed under these Articles or Military pensioners, re-employed in the Police Department if they are medically fit. Or to such an employee who is discharged from service on account of reduction of his post and then reemployed by the competent authority. Note 2. -- In the case of Excise guards appointed temporarily on Special Patrolling duty on the borders, the restriction of age limits is relaxed subject to the condition that those over-age at the time of enlistment shall not be absorbed permanently in the regular cadre on being discharged from the temporary duty. Note 2. -- In the case of Excise guards appointed temporarily on Special Patrolling duty on the borders, the restriction of age limits is relaxed subject to the condition that those over-age at the time of enlistment shall not be absorbed permanently in the regular cadre on being discharged from the temporary duty. Note 3. -- In case of the work-charged establishment the restriction of age limit should be made applicable at their first appointment to such establishment and not at the time of their being brought on to the regular establishment. Note 4. -- Demobilised ex-soldiers of over 30 years of age can be appointed in the Police Department by the Inspector General of Police. Note 5. -- The maximum age limit in respect of an ex-serviceman for employment on any civil post (non-gazetted) and on posts listed in Schedule II of Jammu and Kashmir Civil Service Articles under State Government including Rajya Sainik Board shall be 48 years. The relaxed age limit will apply for recruitment to posts which are reversed for ex-servicemen. Note 5. -- A The maximum age limit in respect of an ex-serviceman/Commissioned Officer including EC/SSC Officers for employment on any civil post (Gazetted) the minimum of the pay scale of which in the revised scale may not be less than Rs.1500 (and in the pre-revised scales Rs.900), shall be 38 years. Note 6. -- There should be no age limit for retired Army Officers employed on contract basis in the areas where their experience would be of value to the State Government. Note 7. -- In the case of initial appointment to Government Service made on the recommendations of the Recruitment Boards, Public Service Commission, or any Selection Committee, the limitations of minimum and maximum age as contained in Article 37, shall be observed with reference to first day of January in which the advertisement notice for the post(s) is issued. This shall also apply to pending cases if any." 14. From the above quoted sub-rule 3 of Rule 37, it is manifest that the maximum age limit in respect of direct recruits to the Government service in all the subordinate and gazetted services has to be up to the limits indicated in the rule, unless in respect of any particular service a different age limit has been prescribed by the Government. If the post of Prosecuting Officer is found to be not covered by Rule 176 of Police Rules, the maximum age limit for the post of Prosecuting Officer for different categories would be governed by Rule 37(3). Rule 176 of Police Rules reads as follows: "176. Qualifications for direct appointment as Inspectors, Sub-Inspectors or Assistant Sub-Inspectors (1) Applications for direct appointment to the rank of Inspector, Sub-Inspector or Assistant Sub-Inspector shall at the discretion of the Inspector-General be referred to the Superintendent of the district in which the applicant resides direct for report in Form 25. (2) The applications should be accompanied by the following certificates:- (i) Education Certificate in original or a copy attested by a Magistrate or by any other gazetted officer. (ii) Permanent residentship certificate. (iii) Testimonial in support of the applicants having taken part in sports activities. (iv) Age according to the Matriculation Certificate. The applicant must be between 18 and 28 years of age. The age limit will be reckoned as on the first day of January of the year in which the competitive examination is held or the nomination is made in respect of the vacancy to which the direct recruitment is made. Application of only such candidates will be considered for selection who conform to the following physical standards fixed by the Government: (i) Height 5-6" (ii) Chest Unexpended 32-1/2" Expanded 33-1/2" The minimum academic qualification for direct recruitment to the post of Sub-Inspector/Inspector shall be bachelors degree from any recognized University. Note:- Legal practitioners selected for appointment as Police Prosecutors may be enrolled up to the age of 30 years." 15. From the bare reading of above rule, it is evident that the eligibility qualifications including the age has been prescribed for direct appointments to the posts of Inspectors, Sub-Inspectors or Assistant Sub-Inspectors. It nowhere provides as to what should be the qualification of Prosecuting Officer if he has to be recruited in the rank of Inspector. Only the note appended to the Rule provides that the legal practitioners, who are to be selected for the post of "Police Prosecutor", may be enrolled up to the age of 30 years. 16. It is significant to notice that the note appended to Rule 176 does not refer to `Prosecution Officers. It only prescribes the maximum age of 30 years for legal practitioners to be selected for appointment to the post of `Police Prosecutors. 16. It is significant to notice that the note appended to Rule 176 does not refer to `Prosecution Officers. It only prescribes the maximum age of 30 years for legal practitioners to be selected for appointment to the post of `Police Prosecutors. The expression Police Prosecutor has not been defined in the rule. Unless the expression Police Prosecutor, used in the note, is held to include the post of Prosecution Officer within its ambit, Rule 176 with its note appended can have no application to the post of Prosecution Officer. 17. The contention of Mr. Salathia is that as the Prosecution Officers enjoy the rank of Inspectors and in the performance of their duties have to prosecute cases on behalf of the police, therefore, they essentially are Police Prosecutors within the meaning of the note appended to Rule 176. 18. I cannot agree with the contention of Mr. Salathia that the `Prosecution Officer is a `Police Prosecutor in view of the provision contained in Rule 671(1) of Police Rules, which provides that at the headquarter of each district there is an officer of the rank of Inspector appointed as `Senior Prosecuting Officer called `Police Prosecutor. Therefore, the expression `Police Prosecutor used in the note would mean `Senior Prosecuting Officer and not the `Prosecuting Officer. Thus, the age limit of 30 years could apply only to the direct recruitment of legal practitioners to the post of Senior Prosecuting Officer and not to the post of Prosecuting Officer. However, after the creation of separate Prosecution Wing of Police and after the enactment of 2002 Rules, the note appended to Rule 176 can have no application even to the post of Senior Prosecuting Officers, as the said post in terms of the said rules can only be filled up by promotion and not by direct recruitment. 19. The post of Prosecuting Officer is distinct from the post of Inspectors in general line in view of nature of duties attached to the post, therefore, Rule 176 of Police Rules can have no application. The post of Prosecuting Officer is the lowest post in the non-gazetted cadre of Prosecution Wing of Police and is a feeding post for the post of Senior Prosecuting Officer in the gazetted cadre in terms of 2002 Rules. The post of Prosecuting Officer is the lowest post in the non-gazetted cadre of Prosecution Wing of Police and is a feeding post for the post of Senior Prosecuting Officer in the gazetted cadre in terms of 2002 Rules. There being no recruitment rules for the post of Prosecuting Officer, the Government/competent authority being the employer is entitled to lay down any eligibility conditions to be possessed by a person to be considered for selection/appointment. As the Government has already prescribed the age limit for a candidate to be eligible for appointment in Government service by making Article 37 of Civil Service Regulations, therefore, the said age limit governs the post of Prosecuting Officer in the Police Department. Admittedly, the age eligibility stipulation in the advertisement notice is not in consonance with the age prescribed by Article 37 of CSR, therefore, the same is not legally sustainable. 20. By prescribing a maximum age limit of 30 years in the advertisement notice, many of the candidates, who though are within the age limit prescribed by Article 37 of CSR, have come to be rendered ineligible in violation of their fundamental rights guaranteed under Articles 14 & 16 of the Constitution of India. I, therefore, hold that the candidates within the age limit prescribed by Article 37 of Civil Service Articles shall be eligible for appointment to the post of Prosecuting Officer. 21. For the aforesaid reasons, these writ petitions are allowed and age stipulation of the impugned Advertisement Notice is quashed. Accordingly, the respondents are directed to allow the candidates including the writ petitioners, who are within the age limit prescribed by Article 37 of Civil Service Regulations, to participate in the selection process. If the applications of such candidates have not been entertained, the selection agency shall notify a date within which they may submit their application forms so as to afford them an opportunity to offer their candidature for selection. Connected CMPs shall also stand disposed of.