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Gujarat High Court · body

2022 DIGILAW 451 (GUJ)

Harshadray Natvarlal Raval v. State Of Gujarat

2022-04-04

BIREN VAISHNAV

body2022
ORDER : 1. The challenge in this petition, under Article 226 of the Constitution of India, is to the notification dated 18.05.2018 issued by the legal department, State of Gujarat by which the petitioner’s tenure of appointment to the post of Additional Public Prosecutor which had otherwise ended on 05.01.2014 has been extended upto 15.01.2014. 2. Facts in brief would indicate that the petitioner was appointed as an Additional Public Prosecutor under Section 24(3) of the Cr.P.C for Surendranagar district for a period of two years by a notification dated 03.01.2009. The petitioner joined his duties on 07.01.2009. 2.1 Since the term was upto 06.01.2011, by a notification dated 17.02.2011, in exercise of powers under Section 24(3) of the Cr.P.C, the same was extended from 06.01.2011 for a period of one year i.e. upto 05.01.2012. By a notification of 30.05.2012, once again in exercise of powers under Section 24(3) of the Cr.P.C read with the Law Officers (Appointment and Conditions of Service) and Conduct of Legal Affairs of the Government Rules, 2009 (for short ‘Rules of 2009’), the term was extended from 06.01.2012 for a period of two years i.e. upto 05.01.2014. A formal declaration of the cessation of the petitioner’s tenure on 05.01.2014 was made by a notification dated 14.03.2014. The petitioner’s date of birth being 23.08.1957, as per the rules of 2009, the petitioner would be ineligible for appointment on attaining the age of 55. 2.2 By a notification dated 18.05.2018, the State through its legal department, issued a notification treating the term of the petitioner as being extended upto 15.01.2014 which is the subject matter of challenge. 3. Mr. K.B. Pujara, learned advocate for the petitioner would submit as under: (a) That the issuance of the notification dated 18.05.2018 is vitiated by colourable exercise of power and by factual and legal malafide. The petitioner, according to Mr. Pujara is falsely implicated as an accused in an ACB trap laid on 15.01.2014 for which FIR was registered vide C.R. No./ 1/2014 of Surendranagar ACB Police Station for offence under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 though the petitioner was not a ‘public servant’ at that point of time. Pujara is falsely implicated as an accused in an ACB trap laid on 15.01.2014 for which FIR was registered vide C.R. No./ 1/2014 of Surendranagar ACB Police Station for offence under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 though the petitioner was not a ‘public servant’ at that point of time. (b) That the investigating agency wanted to prosecute the petitioner anyhow by filing a charge-sheet against the petitioner on the basis of he being a public servant and with a oblique motive to do so to bring him under the definition thereof wrote several letters so that the term of the petitioner be extended for ten days for the period from 05.01.2014 to 15.01.2014. (c) Inviting the court’s attention to several communications annexed to the petition and reading the communication dated 26.06.2015 addressed by the District Government Pleader to the Police Inspector of the ACB Police Station, he would submit that in response to the Police Inspector’s letter to seek information, the District Government Pleader opined that the legal department had been informed by a letter dated 30.10.2013 that the term of the petitioner was expiring on 05.01.2014 and in accordance with the resolution of 11.12.2003 unless the same is discontinued, he would continue to be discharging his duties as APP. That the petitioner had discharged his duties as APP till 15.01.2014. (d) Inviting the attention also to the communication of the Police Inspector to the legal consultant of the ACB Rajkot, he would point out that in the aforesaid communication the Police Inspector had expressed reservations as to whether a final report can be submitted in case of the petitioner in absence of extension of his term and therefore repeated requests had been made to the legal department to amend the notification accordingly. (e) Relying on Rule 4(6) of the Rules of 2009, he would submit that the appointment of the Public Prosecutor and the Additional Public Prosecutor has to be made in accordance with sub-section 3 of Section 24 of the Cr.P.C. Rule 5 deals with the qualifications and the eligibility and no person shall be qualified for appointment as Additional Public Prosecutor if he is above 55 years of age. Rule 6(4) of the rules provides that no law officer whose term of office has expired shall after expiry thereof be entitled to appear for the Government and shall not be entitled to any remuneration in respect of any work done by him after such expiry in any such procedure. 5.1 Accordingly, according to Mr. Pujara once the term of the petitioner had ended on 05.01.2014, it is also evident from the letters of the District Government Pleader dated 10.08.2017 and that of the learned Additional Sessions Judge dated 12.09.2014 that though the term of the petitioner had ended on 05.01.2014 he had not received any remuneration for the work done upto 15.01.2014. 5.2 As regards the interpretation of the resolution dated 11.12.2003, he would submit that the circular was issued only for a particular purpose namely that even after the tenure of the law officers come to an end and until the State Government passes orders either for appointment or termination of tenure, such law officers are required to discharge duties and because the law officers continued to work after their appointments had come to an end, the law officers would continue to discharge their duties even after the tenure of the appointment ended until the government passes orders of extension. As soon as the government makes a new appointment, then from the very same date, the appointment of the law officer who is not given re-appointment will end. Thus the circular merely authorises the law officer to discharge duties as a temporary arrangement which would not make him a ‘public servant’ after the end of tenure. 6. Mr. Kurven Desai, learned AGP for the State would submit that the petition is filed only to see that the petitioner comes out from the corruption charges registered against him by the ACB. He was appointed originally in the year 2009. His tenure came to be extended from time to time and finally upto 05.01.2014. Even after the services were discontinued from 05.01.2014, he continued to act as APP till 15.01.2014 which can very well be seen by the letter of the Additional Sessions Judge, Limbdi dated 12.09.2014. It was for this reason that the notification dated 18.05.2018 was issued. It was therefore that the petitioner was a public servant on 15.01.2014. 6.1 Mr. Even after the services were discontinued from 05.01.2014, he continued to act as APP till 15.01.2014 which can very well be seen by the letter of the Additional Sessions Judge, Limbdi dated 12.09.2014. It was for this reason that the notification dated 18.05.2018 was issued. It was therefore that the petitioner was a public servant on 15.01.2014. 6.1 Mr. Desai would submit that it is not a case that a fresh appointment was given to the petitioner but what was done by the notification was only extension of appointment from time to time prior to he attaining the age of 55. There is no bar in the rules that those persons who are appointed prior to 55 years cannot be continued by way of extension if their age crosses 55. It was on this count that since the petitioner was acting as an APP on 15.01.2014, by a formal notification of 18.05.2014, his services were extended till that date. 7. Having considered the submissions made by the Learned Advocate Mr. K. B. Pujara for the petitioner and Mr Kurven Desai, learned AGP for the State, what needs to be considered is whether the petitioner was a public servant on the date of the incident i.e. 15.1.2014. For the following reasons, the petitioner cannot be so held to be a public servant by operation of the notification dated 18.05.2018. a) The petitioner was appointed as an Additional Public Prosecutor for a period of two years from the date he takes over. The notification appointing him was issued on 3.1.2009. The same was issued under the provisions of Section 24(3) of the Code of Criminal Procedure, 1973 read with the Rules of 2009. The petitioner took over the office of the Additional Public Prosecutor on 7.1.2009. The term was therefore upto 06.01.2011. b) On 17.02.2011, the Legal Department issued a Notification under the provisions of Section 24(3) of the Code of Criminal Procedure and the Rules of 2009. The notification extended the term of appointment of the petitioner for one year from 06.01.2011. The term of appointment therefore was upto 05.01.2012. c) On 30.05.2012, the Legal Department once again issued a Notification under the provisions of Section 24(3) of the Code of Criminal Procedure and the Rules of 2009 appointing the petitioner for a further period of two years from 06.01.2012. The term was therefore upto 05.01.2014. The term of appointment therefore was upto 05.01.2012. c) On 30.05.2012, the Legal Department once again issued a Notification under the provisions of Section 24(3) of the Code of Criminal Procedure and the Rules of 2009 appointing the petitioner for a further period of two years from 06.01.2012. The term was therefore upto 05.01.2014. d) All these notifications, when read in conjunction make it apparent that at each end of tenure or term of the petitioner's appointment as an Assistant Public Prosecutor, a notification under Section 24(3) of the Code of Criminal Procedure and in exercise of the powers under the Rules of 2009, the same was extended for a further period of one year and then for a further period of two years respectively. e) The petitioner's date of birth being 23.8.1957 he attained the age of 55 on 23.08.2012. f) The notifications, three in line dated 03.01.2009, 17.02.2011 and 30.05.2012 were all issued under the provisions of Section 24(3) of the Code of Criminal Procedure and the Rules of 2009. Section 24(3) of the Code of Criminal Procedure reads as under: “24. Public Prosecutors. (3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district.” The Rules of 2009 provide for appointment of Public Prosecutor of Additional Public Prosecutor in the Districts in accordance of sub-section (3) of Section 24 of the Code of Criminal Procedure Code,1973. Rule 5 provides for Qualification and Eligibility which read as under: “5.Qualification and eligibility- (2)No person shall be qualified for appointment as Additional Public Pleader, Additional Public Prosecutor in the High Court or District Courts unless- (b) he is not more than 55 years of age.” Rule 6 provides for Term of Law Officers which reads as under: “6.Term of Law Officers. (1) Subject to other provisions contained in these rules and to any general or special orders issued by the Government in this behalf, a Law Officer shall hold office for a term of three years and shall be eligible for re-appointment after the expiry of such term and for such period as may be decided by the Government from time to time. (4) Save as otherwise directed by the Government, no Law Officer whose term of office has expired shall after the expiry thereof be entitled to appear on behalf of the Government in civil or criminal proceedings which may then be pending, nor shall he be entitled to a remuneration in respect of any work done by him after such expiry in any such proceeding.” g) The notifications of appointment appointing the petitioner as above were issued from time to time under these provisions referred to hereinabove. It was on 30.05.2012 that the notification appointing the petitioner from 6.1.2012 to 5.1.2014 was issued. The petitioner had attained the age of 55 on 23.8.2012 before which date the notification was issued appointing him for a period of two years upto 5.1.2014. h) As per Rule 5(2)(b) of the Rules of 2009, the petitioner could be held as qualified for appointment till he attained the age of 55. Since he attained the age only on 23.08.2012, his appointment was validly made on 30.5.2012 for a further period of two years upto 5.1.2014. After 05.01.2014, by virtue of Rule 5(2)(b) he was not qualified to be appointed as an Additional Public Prosecutor. It is in this background that the notification of 18.05.2018 needs to be tested. i) All the notifications except the one of 18.5.2018 was issued in exercise of powers under Section 24(3) of the Code of Criminal Procedure,1973 read with Rules of 2009. Therefore on the dates when these notifications were issued under the relevant provisions of the Code of Criminal Procedure, 1973 read with the Rules, the petitioner was qualified for appointment as a Additional Public Prosecutor. He also was also entitled to appear for the Government till 5.1.2014 as provided in Rule 6(4). j) What is evident from the exchange of correspondences between the District Government Pleader dated 26.06.2015, 10.08.2017; that of the Police Inspector ACB dated 23.10.2017, one dated 01.12.2017 of the Director General Of Police Anti Corruption Bureau to the Legal Department and 12.09.2014 of the Additional Sessions Judge, Limbdi that though the petitioner carried out duties or worked as Additional Public Prosecutor upto 15/1/2014 no remuneration was paid to him. Therefore as per the operation of the Rule namely Rule 6(4) even otherwise he was not entitled to appear beyond 5.1.2014 when his term had ended. 8. Therefore as per the operation of the Rule namely Rule 6(4) even otherwise he was not entitled to appear beyond 5.1.2014 when his term had ended. 8. Therefore on two grounds, one by operation of Rule 5(2)(b) and by virtue of Rule 6(4) and when the petitioner if he had discharged his duties as APP without remuneration from 5.1.2015 to 15.1.2014, he was not an Additional Public Prosecutor in the eye of law and had not earned any remuneration to be a public servant to be susceptible to prosecution under the Prevention Of Corruption Act,1988. 9. The letters read by Mr Pujara annexed to the petition and the ones in the reply when read indicate that the District Government Pleader in the year 2015 had in response to the information sought by the Police Inspector opined that the Legal Department was informed on 30.10.2013 that the term of the petitioner was ending on 05.01.2014 and that though the petitioner had discharged duties till 15.1.2014, by a notification dated 14.3.2014 his term was expressly over on 5.1.2014. The wheels of the Government started moving when the Police Inspector on 29.01.2017 asked for a clarification as to whether a final report can be filed when the name of the petitioner did not figure in the new notification of 2018 of appointees. The suggestion was to amend the notification of 2018. It was in this background that the State brought out the notification impugned herein extending the petitioner's tenure from 05.01.2014 to 15.1.2014 creating a fiction of he being a public servant on 15.1.2014. This was done after 4 years with retrospective effect. 9.1 Not only was the exercise without authority of law as observed hereinabove because of the petitioner's ineligibility to have an appointment after the notification of 30.5.2012 as he had attained the age of 55 years but also because he could not have continued as APP post 05.01.2014 and knowing fully well the pitfall of the Government to bring the petitioner within the purview of the term public servant, the notification of 18.5.2018 was issued without authority of law. All previous notifications were in exercise of powers under Section 24(3) of the Code of Criminal Procedure,1973 read with Rules of 2009 except the one impugned. All previous notifications were in exercise of powers under Section 24(3) of the Code of Criminal Procedure,1973 read with Rules of 2009 except the one impugned. The contention of the Learned Assistant Government Pleader that these were extensions and not appointments and therefore were out of the purview of Rules 5 and 6 of the 2009 rules is not accepted. In fact the notification of 18.05.2018 is an exercise not backed by an legal force. 10. The Circular dated 11.12.2003 also cannot be pressed into service which is referred to in the letter of the District Government Pleader, Surendranagar dated 26.06.2015. The circular states that even after the tenure of the Law Officers were coming to an end and until orders were passed by the State Government either for extension or termination such Law Officers are required to discharge their duties however it was found that once new appointees were brought in place the appointment of his predecessor will come to an end. This is therefore an arrangement worked out in the interregnum which by itself would not empower and legitimize the notification dated 18.05.2018. 11. The purpose of the notification dated 18.5.2018 was oblique. 4 years after the term of the petitioner had ended and the Legal Department was made aware as back as on 30.10.2013 of his tenure coming to an end and after expressly affirming this fact by a notification of 14.03-2014,which was otherwise not necessary but thought prudent in view of the Circular dated 11.12.2003 and even if the petitioner thereafter discharged his duties till 15.1.2014, it was without remuneration, as even admitted by the Additional Sessions Judge, the petitioner was sought to be roped in by this otherwise a malafide and a colourable mode after 4 years, without any authority of law. The exercise of power was clearly actuated by or on the basis which had no rational or legal foundation and therefore can safely be presumed to be arbitrary and capricious. 12. In view of the above reasons, the Petition is allowed. Accordingly the Notification dated 18.5.2014 is declared to be null and void and is therefore quashed and set aside.