Research › Search › Judgment

Karnataka High Court · body

2022 DIGILAW 492 (KAR)

H. S. Sharana Basavana Goud v. State of Karnataka

2022-04-06

K.S.HEMALEKHA, S.SUNIL DUTT YADAV

body2022
JUDGMENT 1. The appellant has called in question the validity of the order passed by the learned Single Judge dated 07.10.2021 whereby petition challenging the appointment of the respondent No.4 as Special Public Prosecutor for Special Court in conducting the case under the Protection of Children from Sexual Offences Act, 2012, (for short POCSO Act) came to be dismissed. 2. The parties are referred to by their ranks before the learned Single Judge for the purpose of convenience. 3. The Government vide notification at Annexure - F dated 11.12.2020 invited applications for appointment of Special Public Prosecutor on contract basis for 3 years or until further orders on certain fixed terms of emoluments. The petitioner was stated to be working as a prosecutor till 13.12.2021 when the respondent no.4 took charge. 4. It comes out from the facts that the petitioner having been appointed as a prosecutor on 11.12.2014 had continued till the year 2021. The respondent No.4 having been selected pursuant to the procedure followed under the notification at Annexure -F has subsequently taken charge on 13.12.2021 and has been functioning since then. 5. The petitioners have challenged the appointment of the respondent No.4 on various grounds including that the petitioner was more qualified, that the application had a separate column namely column No.15 which provides for mentioning of cases handled by the applicant in specific handling of Sessions Cases and cases under the POCSO Act. It is submitted that the petitioner by virtue of having handled assignment from 11.12.2014 till 2021 was more competent and that required care and caution has not been exercised in the selection process by virtue of which respondent No.4 who has no proper experience has been selected. It is further contended that the notification at Annexure F having prescribed procedure and the short listing of the names the Prl. District Judge in required to make certain enquiries. Selection committee proceedings dated 05.06.2021 produced by the respondent/ State prescribes that after the committee has selected suitable candidates the Prl. District Judge is required to furnish opinion regarding prospective candidates expertise, character and opinion after which movement order is to be given. It is submitted that such procedure has not been followed in the present case. 6. Selection committee proceedings dated 05.06.2021 produced by the respondent/ State prescribes that after the committee has selected suitable candidates the Prl. District Judge is required to furnish opinion regarding prospective candidates expertise, character and opinion after which movement order is to be given. It is submitted that such procedure has not been followed in the present case. 6. Learned counsel for petitioner further submits that the present appointment though being under Section 32 of POCSO Act, the Karnataka Law Officers (Appointment and Conditions of Services) Rules 1977 which are general rules must be treated to be a part and parcel of the notification at Annexure - F and the procedure laid out in the afore said rules ought to be adhered to. 7. It is submitted that the selection committee proceedings did not indicate application of mind and as to on what basis selection of the respondent no.4 has been made from amongst the other candidates. Attention is also drawn to the opinion of the District Judge and it is pointed out that the learned District Judge has observed that the respondent No.4 has handled only matrimonial matters and matters before the Civil Judge (Senior Division) and Legal Services Authority Cases of Ballary. It is further pointed out that the said Prl. District Judge has no other information regarding the character of the applicant and is unable to furnish any other information. It is also contended that the observations made in various judgments which emphasize on the importance of appointing Special Public Prosecutors in POCSO matters ought to be adhered to. The attention is also drawn to the judgment in Criminal Petition No.2951/2020 and connected matters and in particular observations at para No.52 and 57. 8. It is also contended relying on the judgment of the Apex Court in the case of B.P.Singhal V/s. Union of India and Another reported in (2010) 6 SCC 331 that the doctrine of pleasure cannot be invoked and that appointment cannot be arbitrary. 9. The learned counsel Sri. Gangadhar J.M appearing for respondent No.4 on the other hand would submit that the appointment is made under Section 32 of the POCSO Act and the notification at Annexure - F is in pursuance of such power of appointment and the general rules regarding appointment as pointed out by the petitioner cannot be read into the recruitment process. 10. Gangadhar J.M appearing for respondent No.4 on the other hand would submit that the appointment is made under Section 32 of the POCSO Act and the notification at Annexure - F is in pursuance of such power of appointment and the general rules regarding appointment as pointed out by the petitioner cannot be read into the recruitment process. 10. It is further submitted that the appointment of a counsel by the State is within the sole prerogative of the State and there could be no judicial interference in that regard which may have effect of rewriting the eligibility conditions. 11. The learned Additional Government Advocate has adopted the arguments of learned counsel for respondent No.4 and further submits that the procedure followed by the expert body ought not to be interfered with and some sanctity is required to be attached to the selection of process. 12. It is further submitted that unless malafide is made out question of interference does not arise. 13. It is also contended that once the petitioner has participated in the selection process the petitioner cannot turn around and question the validity of such process as the notification is not in violation of any rule. 14. Heard both sides elaborately. It must be noted that all contentions that have been advanced before the learned Single Judge have been addressed in detail by the learned Single Judge in his detailed order while rejecting the petition and observing that the respondent no.4 had satisfied the eligibility criteria of having minimum practice of 7 years and no ground was made out for interference with the order of appointment. 15. It was pointed out by the learned Single Judge that the matter related to the appointment of counsel by the State and the petitioner cannot claim any vested right over the post so as to compel the State Government to choose him over the respondent No.4. It is submitted that no ground was made out for interference where respondent No.4 had requisite eligibility criteria as prescribed under Section 32 of the POCSO Act. 16. The admitted position being that Annexure - F notification is issued in terms of mandate under Section 32 of POCSO Act. It is submitted that no ground was made out for interference where respondent No.4 had requisite eligibility criteria as prescribed under Section 32 of the POCSO Act. 16. The admitted position being that Annexure - F notification is issued in terms of mandate under Section 32 of POCSO Act. Section 32 of POCSO Act has prescribed the qualification be appointed as a Special Public Prosecutor, and prescribes the qualification that the person who is to be appointed as a Special Public Prosecutor can be appointed only if he is in practice for not less than 7 years. The power of appointment is specifically conferred under Section 32 and the State Government which is the appointing authority has further passed notification as per Annexure - F and the eligibility conditions are as follows; 17. It is clear that the notification provides that the candidate should have completed 10 years of practice as on 12.11.2020. Apart from the above qualification the candidate is required to submit other documents along with the application which are as follows; 18. Insofar as the selection process is concerned committee has been setup in terms of the notification and proceedings of the committee have been produced before this Court including the proceedings on 05.06.2021. The committee for selection includes Additional Chief Secretary, Director of Women and child Development Departments, Integrated Children Protection Project, Director of Prosecution and Government Litigation Department, Joint Secretary to the Government (Police services) and in charge (law and order) Internal Administrative Department. The proceedings indicates selection made with further direction to the Prl. District Judge to provide details regarding the candidates professional expertise and character after which movement order is to be made. 19. It is a settled possession that the decision taken by a body of experts ought not to be interfered except where malafied is established. The Apex Court in the case of University of Mysuru and another V/s. C.D. Govinda Rao AIR 1965 SC 491 speaking through constitution bench has observed that the decision of experts ought not to be interfered with and that the Courts should be slow to interfere with opinion of experts. 20. In the present case there are no allegations of malafied action. 20. In the present case there are no allegations of malafied action. The minimum eligibility is that the candidates should have practice for 7 years in terms of Section 32 of the POCSO Act while in the notification the requirement as reproduced at para No.15 has enhanced the minimum eligibility of practice to not less than 10 years. 21. Once the minimum eligibility is satisfied, rest remains in the area of suitability where there are large number of candidates and the selection of one is bound to cause heart burn to another who may be equally competent and could have been selected. But, unless there are legal grounds for interference, the exercise of judicial review is limited. The selection committee is aware of the specific requirements from the prospective employees and decision of selection is not to be interfered with readily. The fact that the District Judge has not expressed any positive opinion as regards the respondent No.4 while observing that the exposure is limited to matrimonial cases, District Legal Services Authority, Ballary and the matters before the Civil Judge, Senior Division by itself will not take away selection of the 4th respondent who possesses the minimum eligibility condition which has already been fulfilled. Once minimum eligibility condition of being an Advocate of 7 years and as enhanced by the notification of being an Advocate for 10 years is fulfilled, the remaining aspect relating to suitability, once decided by the committee cannot be interfered with unless there is any allegation of malafide. 22. The contention regarding doctrine of pleasure need not be dealt with in detail as essentially the doctrine of pleasure relates to the aspect of tenure of office. No doubt it is the prerogative of the State to appoint counsel of their choice. But it should be noticed that once the State itself has framed, either rules or notification, it is to be bound by it. In the present case, notification having been made at Annexure-F pursuant to Section 32, once the procedure is laid down, it is to be followed. The contention that the Karnataka Law Officers (Appointment and Conditions of Services) Rules 1977 ought to be read into the recruitment process is a contention that deserves to be rejected since, the special notification has been passed pursuant to the direction of the Apex Court as well as the mandate under Section 32 of the POCSO Act. The contention that the Karnataka Law Officers (Appointment and Conditions of Services) Rules 1977 ought to be read into the recruitment process is a contention that deserves to be rejected since, the special notification has been passed pursuant to the direction of the Apex Court as well as the mandate under Section 32 of the POCSO Act. 23. No grounds are made out for interference however in the present case. Any procedural lapse cannot have the effect of vitiating the appointment of respondent No.4 who is stated to have received two days training at Karnataka Judicial Academy and also been working as Special Public Prosecutor till date from the date of assuming charge. 24. Accordingly, we find no reasons to interfere with the impugned order. 25. In the result, we pass the following: ORDER Writ appeal is hereby dismissed.