Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 1439 (CAL)

Prafullya Kumar Mahato v. STATE OF WEST BENGAL

2011-11-24

JAYANTA KUMAR BISWAS

body2011
JUDGMENT The Court : 1. The petitioner in this art.226 petition dated November 16, 2011 is questioning the validity of the revised panel dated September 19, 2011 (at p.38) sent by the Legal Remembrancer, West Bengal to the District Magistrate & Collector, Purulia. 2. The revised panel was prepared for engaging lawyers therefrom for conducting civil and criminal cases on behalf of the State Government in the district of Purulia. 3. Relevant parts of the panel are quoted below: “In inviting reference to your Memo. No. 479/J dt. 8.9.11 on the abovementioned subject, I am to inform you that the proposed panel of advocates for conduct Civil/Criminal cases at the courts in your District has been approved in the following way. The existing panel in this regard may be treated as cancelled and the date of issuance of this order may be treated as the date of effect of this revised panel. The revised panel is as follow.” 4. Relying on the provisions of s.24 of the Code of Criminal Procedure, 1973 and the case stated in para.7 of the petition, counsel for the petitioner has submitted that nothing in the panel will show that the District Magistrate prepared it in consultation with the Sessions Judge, or that steps for its preparation were taken after vacancies occurred. According to him, the panel has been prepared in contravention of law. 5. Relying on the Supreme Court decision in the State of Uttar Pradesh & Ors. v. Rakesh Kumar Keshoram & Anr, (2011) 5 SCC 341 counsel for the State has questioned the maintainability of the petition saying that since the persons whose names were mentioned in the panel, except the Public Prosecutor, were not to be appointed to any post, the petitioner had no right to claim consideration for empanelment. 6. The case stated in para.7 of the petition is as follows: “7. That prior to preparation of the aforesaid revised panel no notification was published to full up the vacancies in the office of the Public Prosecutor and Government Pleader in the Courts in the District of Purulia. As no panel of Public Prosecutor, Additional Public Prosecutors, Government Pleader and Assistant Government Pleaders was prepared after inviting applications from qualified practicing Advocates so there cannot be any revised panel. As no panel of Public Prosecutor, Additional Public Prosecutors, Government Pleader and Assistant Government Pleaders was prepared after inviting applications from qualified practicing Advocates so there cannot be any revised panel. Under rule 61(3) of Legal Remembrancer’s Manual (Second Edition), 1971 the Legal Remembrancer is required to advertise the vacancy, either generally or locally. But no vacancy in the Office of the Government Pleader as well as the Public Prosecutor was declared or notified and no advertisement was published inviting application from the qualified Advocates practicing in the Courts at Purulia or within the State of West Bengal. Before preparing the aforesaid panel of Pleaders the provisions of the aforesaid rule 61 have not been followed or complied with. Hence the entire revised panel which has been prepared is wholly illegal and arbitrary.” 7. The case stated in para.8 of the petition is as follows: “8. That prior on 22.09.2011 the Advocates in the Judgeship at Purulia were quite in dark as to whether any panel of Pleaders and public prosecutors on behalf of the State has been prepared. By the aforesaid preparation of panel of Pleaders and Prosecutors the Petitioner as well other Advocates has been debarred from applying for consideration of his name in that regard. Thus violation of principle of natural justice.” 8. It is evident that the petitioner is making a grievance that since the panel was prepared without publishing advertisement inviting applications from qualified advocates, he and the other advocates practising in the district did not get a reasonable opportunity of applying for empanelment. He has also made a grievance, as argued by his counsel, that though no vacancy occurred, a revised panel was prepared. 9. The provisions of s.24 CrPC apply only to appointment of Public Prosecutor and Additional Public Prosecutors. Nothing therein creates an obligation of any authority to publish an advertisement inviting applications from eligible persons for appointment as Public Prosecutor or Additional Public Prosecutor. If an appointment is made according to s.24, it cannot be quashed for non-compliance with provisions of L.R. Mannual – a set of executive instructions and not law within the meaning of art.13. 10. The concept that steps for recruitment, selection and appointment can be and are taken only for filling existing or anticipated vacancies, or both has no manner of application to a process for appointment of Public Prosecutor or Additional Public Prosecutors under s.24 CrPC. 10. The concept that steps for recruitment, selection and appointment can be and are taken only for filling existing or anticipated vacancies, or both has no manner of application to a process for appointment of Public Prosecutor or Additional Public Prosecutors under s.24 CrPC. One appointed under s.24 CrPC has no right to continue as such until one reaches the age of retirement or the appointment is lawfully terminated. 11. In this case it is evident from the panel that already a person has been appointed as Public Prosecutor. There is no reason to accept the case that the District Magistrate did not prepare the panel of names of persons, who were, in his opinion, fit to be appointed as Public Prosecutor for the district, in consultation with the Sessions Judge. I, therefore, do not find any reason to interfere with the appointment of the Public Prosecutor. 12. Insofar as the question of inclusion of the other advocates named in the panel for conducting civil and criminal cases is concerned, I do not find any reason to interfere in the matter for the simple reason that it was entirely for the Government to choose its lawyers for conducting its cases. The Government was under no obligation to publish advertisement inviting applications from practising advocates for empanelment for conducting cases on behalf of the Government. 13. In my opinion, the petitioner is asserting a non-existent right and seeking to enforce a non-existent obligation of the Government that possessed requisite power to choose lawyers for conducting its cases and also to appoint a Government Pleader of its choice. The cited decision supports the case of the respondents. 14. For these reasons, the petition is dismissed. No costs. Certified xerox.