Anda di halaman 1dari 75

Laxman Rupchand Meghwani Vs.

State of Gujarat
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date :30/10/2015
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 3734 of 2015
With SPECIAL CRIMINAL APPLICATION NO. 4360 of 2015
With SPECIAL CRIMINAL APPLICATION NO. 5372 of 2015
With CRIMINAL MISC. APPLICATION NO. 11998 of 2015
In SPECIAL CRIMINAL APPLICATION NO. 3734 of 2015
LAXMAN RUPCHAND MEGHWANI....Applicant(s) Versus STATE OF GUJARAT &
2....Respondent(s)
Appearance: S.CR.A. NO.3734 OF 2015: MR BB NAIK, SR ADVOCATE WITH MR RJ
GOSWAMI, ADVOCATE for the Applicant(s) No. 1 MR SHALIN MEHTA WITH MR PR
THAKKAR, SR ADVOCATES for the Respondent(s) No. 3 MR KAMAL B TRIVEDI
ADVOCATE GENERAL WITH MR MITESH AMIN PUBLIC PROSECUTOR for the
Respondent(s) No. 1 NOTICE SERVED for the Respondent(s) No. 2
S.CR.A. NO.4360 OF 2015: MR VIRAT G POPAT, ADVOCATE for the Applicant(s) No. 1
MR SHALIN MEHTA WITH MR PR THAKKAR, SR ADVOCATES for the Respondent(s)
No. 4 MR KAMAL B TRIVEDI ADVOCATE GENERAL WITH MR MITESH AMIN
PUBLIC PROSECUTOR for the RESPONDENT(s) No. 1
S.CR.A. NO.5372 OF 2015: MR MIHIR THAKORE SR ADVOCATE WITH MR SALIL M
THAKORE, ADVOCATE for the Applicant(s) No. 1-2 MR SHALIN MEHTA WITH MR PR
THAKKAR, SR ADVOCATES for the Respondent(s) No. 3 MR KAMAL B TRIVEDI
ADVOCATE GENERAL WITH MR MITESH AMIN PUBLIC PROSECUTOR for the
RESPONDENT(s) No. 1
CR.M.A. NO.11998 OF 2015: MR BB NAIK, SR ADVOCATE WITH MR RJ GOSWAMI,
ADVOCATE for the Applicant(s) No. 1 MR SHALIN MEHTA WITH MR PR THAKKAR,

SR ADVOCATES for the Respondent(s) No. 3 MR KAMAL TRIVEDI, ADVOCATE


GENERAL WITH MR MITESH AMIN, PUBLIC PROSECUTOR for the Respondent(s) No.
1
COMMON JUDGMENT
1. Since the issues raised in all the three captioned writ applications are more or less the
same, those were heard analogously and are being disposed of by this common judgment and
order. However, for the sake of convenience, the Special Criminal Application No.3734 of
2015 is treated as the lead matter.
2. The Government of Gujarat, by order and in the name of the Governor, issued a
Notification dated 07.05.2015 and appointed Shri Raghuvir Nandkrishna Pandya, the
respondent No.3 herein, as the District Government Pleader and Public Prosecutor of
Vadodara. The question for consideration is: whether the appointment of the respondent No.3
as the District Government Pleader and Public Prosecutor in the District of Vadodara was an
infraction of Section 24(3) of the Code of Criminal Procedure, 1973 (for short, the Cr.P.C.)
and the Law Officers (Appointment and Conditions of Service) and Conduct of Legal Affairs
of the Government Rules, 2009 (for short, the Rules 2009)? Was he qualified for an
appointment as the District Government Pleader and Public Prosecutor if so has the
mandatory process of consultation as provided under Section 24 of the Cr.P.C., stood
followed?
3. The applicants of all the three writ applications are residents of Vadodara. They have
prayed for a writ of quo warranto removing Shri Raghuvir Pandya from the office of the
District Government Pleader (DGP) and Public Prosecutor, Vadodara, as according to them,
he is not fit and suitable for the post. It is the case of the writ applicants that appropriate
representations were made before the State Government in writing as regards the appointment
of Shri Pandya, as the DGP and PP of Vadodara. The case of the writ applicants is that Shri
Pandya in the year 2004 was the Public Prosecutor and had conducted a very sensational trial
popularly known as the Best Bakery Case. It is pointed out that the Supreme Court in the
case of Zahira Habibulla H Sheikh V. State of Gujarat [2004(4) SCC 158] made scathing
remarks against Shri Pandya in his capacity as the Public Prosecutor as regards his character,
integrity and competency. According to the writ applicants, the scathing remarks passed by
the Supreme Court in the above referred case renders Shri Pandya to be totally unfit and
unsuitable for the post of the DGP and Public Prosecutor. It is also the case of the writ

applicants that there was no effective consultation between the District Magistrate and the
Sessions Judge as regards the observations of the Supreme Court and also on other vital
issues.
WHAT WAS THE BEST BAKERY CASE?
4. Between 8.30 p.m. of 1.3.2002 and 11.00 a.m. of 2.3.2002, a business concern known as
the "Best Bakery" at Vadodara was burnt down by an unruly mob of large number of people.
In the ghastly incident, 14 persons died. The attacks were stated to be a part of the retaliatory
action to avenge the killing of 56 persons burnt to death in the Sabarmati Express near godhra
in the State of Gujarat. A lady by name Zahira was the main eyewitness to the incident who
lost her family members including helpless women and innocent children in the gruesome
incident. Many persons other than Zahira were also the eyewitnesses. The accused persons
were the perpetrators of the crime. After the investigation, a chargesheet was filed in June
2002. During trial the purported eyewitnesses resiled from the statements made during
investigation. Faulty and biased investigation as well as perfunctory trial were said to have
marred the sanctity of the entire exercise undertaken to bring the culprits to books. By
judgment dated 27.6.2003, the trial Court directed acquittal of the accused persons. Zahira
appeared before the National Human Rights Commission stating that she was threatened by
powerful politicians not to depose against the accused persons.
4.1 On 7.8.2003, an appeal was filed by the State against the judgment of acquittal before this
Court. This Court upheld the acquittal of the accused persons. The NHRC moved the
Supreme Court and its Special Leave Petition was treated as a petition under Article 32 of the
Constitution of India, 1950. Zahira and one another NGO filed a Special Leave Petition
challenging the judgment of acquittal affirmed by the High Court.
4.2 While allowing the appeals, the Supreme Court severely criticized the manner in which
the entire trial was conducted and more particularly, the dubious role sought to have been
played by the Public Prosecutor, namely, Shri Pandya, who was Incharge of the trial. The
Supreme Court made the following observations in the reported decision, referred to above,
in paras 33, 35, 36, 38, 42, 43, 56, 60, 64, 68, 69, 70, 71, 72 and 75:
33. The principle of fair trial now informs and energises many areas of the law. It is
reflected in numerous rules and practices. It is a constant, ongoing development process
continually adapted to new and changing circumstances, and exigencies of the situation
peculiar at times and related to the nature of crime, persons involved directly or operating

behind, social impact and societal needs and even so many powerful balancing factors which
may come in the way of administration of criminal justice system. 35. This Court has often
emphasised that in a criminal case the fate of the proceedings cannot always be left entirely
in the hands of the parties, crimes being public wrongs in breach and violation of public
rights and duties, which affect the whole community as a community and harmful to the
society in general. The concept of fair trial entails familiar triangulation of interests of the
accused, the victim and the society and it is the community that acts through the State and
prosecuting agencies. Interests of society is not to be treated completely with disdain and as
persona non grata. Courts have always been considered to have an overriding duty to
maintain public confidence in the administration of justice often referred to as the duty to
vindicate and uphold the 'majesty of the law'. Due administration of justice has always been
viewed as a continuous process. not confined to determination of the particular case,
protecting its ability to function as a Court of law in the future as in the case before it. If a
criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must
cease to be a spectator and a mere recording machine by becoming a participant in the trial
evincing intelligence, active interest and elicit all relevant materials necessary for reaching
the correct conclusion, to find out the truth, and administer justice with fairness and
impartiality both to the parties and to the community it serves. Courts administering criminal
justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in
rational to proceedings, even if a fair trial is till possible, except at the risk of undermining
the fair name and standing of the Judges or impartial and independent adjudicators.
36. The principles of rule of law and due process are closely linked with human rights
protection. Such rights can be protected effectively when a citizen has recourse to the Courts
of law. It has to be unmistakably understood that a trial which is primarily aimed at
ascertaining truth has to be fair to all concerned. There can be no analytical, all
comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be
determined in seemingly infinite variety of actual situations with the ultimate object in mind
viz. whether something that was done or said either before or at the trial deprived the quality
of fairness to a degree where a miscarriage of justice has resulted. It will be not correct to
say that it is only the accused who must be fairly dealt with. That would be turning Nelson's
eyes to the needs of the society at large and the victims or their family members and relatives.
Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial
is as much injustice to the accused as is to the victim and the society. Fair trial obviously

would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial
calm. Fair trial means a trial in which bias or prejudice for or against the accused, the
witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or
are forced to give false evidence that also would not result in a fair trial. The failure to hear
material witnesses is certainly denial of fair trial.
38. A criminal trial is a judicial examination of the issues in the case and its purpose is to
arrive at a judgment on an issue as a fact or relevant facts which may lead to the discovery of
the fact issue and obtain proof of such facts at which the prosecution and the accused have
arrived by their pleadings; the controlling question being the guilt or innocence of the
accused. Since the object is to mete out justice and to convict the guilty and protect the
innocent, the trial should be a search for the truth and not a bout over technicalities, and
must be conducted under such rules as will protect the innocent, and punish the guilty. The
proof of charge which has to be beyond reasonable doubt must depend upon judicial
evaluation of the totality of the evidence, oral and circumstantial and not by an isolated
scrutiny.
42. Legislative measures to emphasise prohibition against tampering with witness, victim or
informant have become the imminent and inevitable need of the day. Defects which
illegimately affect the presentations of evidence in proceedings before the Courts have to be
seriously and sternly dealt with. There should not be any undue anxiety to only protect the
interest of the accused. That would be unfair as noted above to the needs of the society. On
the contrary, the efforts should be to ensure fair trial where the accused and the prosecution
both get a fair deal. Public interest in the proper administration of justice must be given as
much importance if not more, as the interests of the individual accused. In this Courts have a
vital role to play.
43. The Courts have to take a participatory role in a trial. They are not expected to be tape
recorders to record whatever is being stated by the witnesses. Section 311 of the Code and
Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court
to elicit all necessary materials by playing an active role in the evidence collecting process.
They have to monitor proceedings in aid of justice in a manner that something, which is not
relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some
ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived
at. This becomes more necessary where the Court has reasons to believe that the prosecuting
agency or the prosecutor is not acting in the requisite manner. The Courts cannot afford to be

wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or


dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act
fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and
Courts could not also play into the hands to such prosecuting agency showing indifference or
adopting an attitude of total aloofness.
56. As pithily stated in Jennison v. Backer: (All ER p.1006d) "The law should not be seen to
sit limply, while those who defy it go free and, those who seek its protection lose hope".
Courts have to ensure that accused persons are punished and that the might or authority of
the State are not used to shield themselves or their men. It should be ensured that they do not
wield such powers which under the Constitution has to be held only in trust for the public
and society at large. If deficiency in investigation or prosecution is visible or can be
perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies.
Courts have to deal with the same with an iron hand appropriately within the framework of
law. It is as much the duty of the prosecutor as of the Court to ensure that full and material
facts are brought on record so that there might not be miscarriage of justice.
(See Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhobe)
60. Right from the beginning, the stand of the appellants Zahira was that the investigating
agency was trying to help the accused persons and so was the public prosecutor. If the
investigation was faulty, it was not the fault of the victims or the witnesses. If the same was
done in a manner with the object of helping the accused persons as it appears to be apparent
from what has transpired so far, it was an additional ground just and reasonable as well for
accepting the additional evidence.
64. It is no doubt true that the accused persons have been acquitted by the trial Court and
the acquittal has been upheld, but if the acquittal is unmerited and based on tainted evidence,
tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of
threatened/terrorised witnesses, it is no acquittal in the eye of law and no sanctity or
credibility can be attached and given to the so called findings. It seems to be nothing but a
travesty of truth, fraud on legal process and the resultant decision of courts coram non judis
and non est. There is, therefore, every justification to call for interference in these appeals.
68. If one even cursorily glances through the records of the case, one gets a feeling that the
justice delivery system was being taken for a ride and literally allowed to be abused, misused
and mutilated by subterfuge. The investigation appears to be perfunctory and anything but

impartial without any definite object of finding out the truth and bringing to book those who
were responsible for the crime. The public prosecutor appears to have acted more as a
defence counsel than one whose duty was to present the truth before the Court. The Court in
turn appeared to be a silent spectator, mute to the manipulations and preferred to be
indifferent to sacrilege being committed to justice. The role of the State Government also
leaves much to be desired. One gets a feeling that there was really to seriousness in the
State's approach in assailing the Trial Court's judgment. This is clearly indicated by the fact
that the first memorandum of appeal filed was an apology for the grounds. A second
amendment was done, that too after this Court expressed its unhappiness over the
perfunctory manner in which the appeal was presented and challenge made. That also was
not the end of the matter. There was a subsequent petition for amendment. All this sadly
reflects on the quality of determination exhibited by the State and the nature of seriousness
shown to pursue the appeal. Criminal trial should not be reduced to be the mock trials or
shadow boxing or fixed trials. Judicial Criminal Administration System must be kept clean
and beyond the reach of whimsical political wills or agendas and properly insulated from
discriminatory standards or yardsticks of the type prohibited by the mandate of the
Constitution.
69. Those who are responsible for protecting life and properties and ensuring that
investigation is fair and proper seem to have shown to real anxiety. Large number of people
had lost their lives. Whether the accused persons were really assailants or not could have
been established by a fair and impartial investigation. The modern day "Neros" were looking
elsewhere when Best Bakery and innocent children and helpless women were burning, and
were probably deliberating how the perpetrators of the crime can be saved or protected. Law
and Justice become flies in the hands of these "wanton boys". When fences state to swallow
the crops, no scope will be left for survival of law and order or truth and justice. Public order
as well as public interest become martyrs and monuments.
70. In the background of principles underlying Section 311 and Section 391 of the Code and
Section 165 of the Evidence Act it has to be seen as to whether the High Court's approach is
correct and whether it had acted justly, reasonably and fairly in placing premiums on the
serious lapses of grave magnitude by the prosecuting agencies and the Trial Court, as well.
There are several infirmities which are tell tale even to the naked eye of even an ordinary
common man. The High Court has come to a definite conclusion that the investigation
carried out by the police was dishonest and faulty. That was and should have been per se

sufficient justification to direct a retrial of the case. There was no reason for the High Court
to come to the further conclusion of its own about false implication without concrete basic
and that too merely on conjecture. On the other hand, the possibility of the investigating
agency trying to shield the accused persons keeping in view the methodology adopted and
outturn of events can equally be not ruled out. When the investigation is dishonest and faulty,
it cannot be only with the purpose of false implication. it may also be noted at this stage that
the High Court has even gone to the extent of holding that the FIR was manipulated. There
was no basis for such a presumptive remark or arbitrary conclusion.
71. The High Court has come to a conclusion that Zahira seems to have unfortunately for
some reasons after the pronouncement of the judgment fallen into the hands of some who
prefer to remain behind the curtain to come out with the affidavit alleging threat during trial.
It has rejected the application for adducing additional evidence on the basis of the affidavit,
but has found fault with the affidavit and hastened to conclude unjustifiably that they are far
from truth by condemning those who were obviously victims. The question whether they were
worthy of credence, and whether the subsequent stand of the witnesses was correct needed to
be assessed, and adjudged judiciously on objective standards which are the hallmark of a
judicial pronouncement. Such observations if at all could have been only made after
accepting the prayer for additional evidence. The disclosed purpose in the State
Government's prayer with reference to the affidavits was to bring to High Court's notice the
situation which prevailed during trial and the reasons as to why the witnesses gave the
version as noted by the Trial Court. Whether the witness had told the truth before the Trial
Court or as stated in the affidavit, were matters for assessment of evidence when admitted
and tendered and when the affidavit itself was not tendered as evidence, the question of
analysing it to find fault was not the proper course to be adopted. The affidavits were filed to
emphasise the need for permitting additional evidence to be taken and for being considered
as the evidence itself. The High Court has also found that some persons were not present
and, therefore, question of their statement being recorded by the police did not arise. For
coming to this conclusion, the High Court noted that the statements under Section 161 of the
Code were recorded in Gujarati language though the witnesses did not know Gujarati. The
reasoning is erroneous for more reason than one. There was no material before the High
Court for coming to a finding that the person did not know Gujarati since there may be a
person who could converse fluently in a language though not a literate to read and write.
Additionally, it is not a requirement in law that the statement under Section 161 of the Code

has to be recorded in the language known to the person giving the statement. As a matter of
fact, the person giving the statement is not required to sign the statement as is mandated in
Section 162 of the Code. Subsection (1) of Section 161 of the Code provides that the
competent police officer may examine orally any person supposed to be acquainted with the
facts and circumstances of the case. Requirement is the examination by the concerned police
officer. Subsection (3) is relevant, and it requires the police officer to reduce into writing any
statement made to him in the course of an examination under this Section; and if he does so,
he shall make a separate and true record of the statement of each such person whose
statement he records. Statement made by a witness to the police officer during investigation
may be reduced to writing. It is not obligatory on the part of the police officer to record any
statement made to him. He may do so if he feels it necessary. What is enjoined by the Section
is a truthful disclosure by the person who is examined. In the above circumstances the
conclusion of the High Court holding that the persons were not present is untenable. The
reasons indicated by the High Court to justify non examination of the eyewitnesses is also not
sustainable. In respect of one it has been said that whereabouts of the witness may not be
known. There is nothing on record to show that the efforts were made by the prosecution to
produce the witness for tendering evidence and yet the net result was "untraceable". In other
words, the evidence which should have been brought before the Court was not done with any
meticulous care or seriousness. it is true that the prosecution is not bound to examine each
and every person who has been named as witness. A person named as a witness may be given
up when there is material to show that he has been gained over or that there is no likelihood
of the witness speaking the truth in the Court. There was no such material brought to the
notice of the Courts below to justify nonexamination. The materials on record are totally
silent on this aspect. Another aspect which has been lightly brushed aside by the High Court
is that one person who was to be examined on a particular date was examined earlier than
the date fixed. This unusual conduct by the prosecutor should have been seriously taken note
of by the Trial Court and also by the High Court. It is to be noted that the High Court has
found fault with DCP Shri Piyush Patel and has gone to the extent of saying that he has
miserably failed to discharge his duties; while finding at the same time that police inspector
Baria had acted fairly. The criticism according to us is uncalled for. Role of Public
Prosecutor was also not in line with what is expected of him. Though a Public Prosecutor is
not supposed to be a prosecutor, yet the minimum that was required to be done to fairly
present the case of the prosecution was not done. Time and again, this Court stressed upon
the need of the investigating officer being present during trial unless compelling reasons exist

for a departure. In the instant case, this does not appear to have been done, and there is no
explanation whatsoever why it was not done. Even Public Prosecutor does not appear to
have taken note of this desirability. In Shailendra Kumar v. State of Bihar and Ors., it was
observed as under:(SCC pp.65758, para 9)
"In our view, in a murder trial, it is sordid and repulsive matter that without informing the
police station officerincharge, the matters are proceeded by the court and by the APP and
tried to be disposed of as if the prosecution has not led any evidence. From the facts stated
above, it appears that accused wants to frustrate the prosecution by unjustified means and it
appears that by one way or the other the Addl. Sessions Judge as well as the APP have not
taken any interest in discharge of their duties. It was the duty of the sessions judge to issue
summons to the investigating officer if he failed to remain present at the time of trial of the
case. The presence of investigating officer at the time of trial is must. It is his duty to keep the
witnesses present. If there is failure on part of any witness to remain present, it is the duty of
the court to take appropriate action including issuance of bailable/nonbailable warrants as
the case may be. It should be well understood that prosecution cannot be frustrated by such
methods and victims of the crime cannot be let in lurch."
72. A somewhat an unusual mode in contract to the lapse committed by nonexamining
victims and injured witnesses adopted by the investigating agency and the prosecutor was
examination of six relatives of accused persons. They have expectedly given a clean chit to
the accused and labeled them as saviors. This unusual procedure was highlighted before the
High Court. But the same was not considered relevant as there is no legal bar. When we
asked Mr. Rohtagi, learned counsel for the State of Gujarat as to whether this does not reflect
badly on the conduct of investigating agency and the prosecutor, he submitted that this was
done to show the manner in which the incident had happened. This is a strange answer.
Witnesses are examined by prosecution to show primarily who is the accused. In this case it
was nobody's stand that the incident did not take place. That the conduct of investigating
agency and the prosecutor was not bona fide, is apparent and patent.
75. Keeping in view the peculiar circumstances of the case, and the ample evidence on
record, glaringly demonstrating subversion of justice delivery system no congeal and
conducive atmosphere still prevailing, we direct that the retrial shall be done by a Court
under the jurisdiction of Bombay High Court. The Chief Justice of the said High Court is
requested to fix up a Court of competent jurisdiction.

5. The above referred paragraphs of the Supreme Courts judgment containing the remarks
passed against Shri Pandya, according to the writ applicants, make him unfit and unsuitable
to hold the post of the DGP and Pubic Prosecutor. According to the writ applicants, there is
nothing on record to even remotely indicate that before appointing Shri Pandya as the DGP
and Public Prosecutor, the District Magistrate, the Sessions Judge as well as the State
Government considered the effect of such remarks passed by the Supreme Court. According
to the writ applicants, fitness includes character, integrity, competence, knowledge and the
like of a person to be so appointed. According to the writ applicants, the lack of effective
consultation in the matter of present type could fall within the scope of judicial review.
STANCE OF THE STATE GOVERNMENT:
6. In all the three writ applications, an affidavit in reply has been filed on behalf of the State
of Gujarat duly affirmed by the Joint Secretary, Legal Department, Gandhinagar making the
following averments:
5. I say and submit that this petition has been preferred by the present petitioner under
Article 226 of the Constitution of India. Hence, the petitioner must have to say and prove
before this Honble Court that his fundamental right which has been granted under the
Constitution of India is infringed. In the present case, there is not averments to that effect
that this fundamental right is affected pursuant to the appointment of respondent no.3. I say
and submit that the present petition has no locus standi to challenge the appointment of
respondent no.3 before this Honble Court. 6. I say and submit that even the present petition
had been filed as Special Criminal Application but as such there is no criminal law attracted
to the issue hence, as it is an appointment of DGP & PP hence it would be rather a litigation
in Civil nature. Even one Mr. Shakil Khan Sharif Khan Pathan had also filed a Writ Petition
(PIL) no.125 of 2015 before this Honble Court which is also filed under Article 226 and 227
of the Constitution of India and it was prayed by the petitioner to quash and set aside the
appointment of respondent no.3 as DGP & PP, Vadodara by holding and declaring that it is
contrary to mandatory provisions of law and is against the public interest at large and
further prayed that the appointment of respondent no.3 is illegal, null and void. This writ
petition came to be listed before the Honble Division Bench (Coram : Honble R.P.
Dholaria, JJ) which came to be dismissed by order dated 02.07.2015. A copy of the order
dated 02.07.2013 passed in Writ Petition (PIL) No.125 of 2015 is annexed herewith and
marked as Annexure RI. Hence, the issue which has been raised by the present petitioner in

this petition, prima facie, gone into by PIL bench and the Honble Court has not interfered.
7. I say and submit that the contentions raised in the present Special Criminal Application
are substantially similar which were raised in Writ Petition (PIL) no.125 of 2015. The
deponent craves leave of this Honble Court to place on record a copy of the said Writ
Petition (PIL) no.125 of 2015 along with all its annexure as Annexure RII. 8. I say and
submit that the respondent no.3 was appointed as DGP&PP by order dated 25.02.2002 for a
period of one year and thenafter, he was again appointed as DGP&PP for a period of two
years from 11.02.2003 to 26.02.2005. Hence, when this best bakery case was on trial the
respondent no.3 was a DGP&PP of Vadodara district and as a PP he had appeared as a PP
in the best bakery case. The respondent no.3 was again appointed by order dated 04.03.2005
for a period of one year thenafter by order dated 23.05.2006 he was appointed as DGP&PP
was extended up to 03.03.2008. 9. I say and submit that as the tenure of appointment of
respondent no.3 was over, he was relieved from DGP&PP office on 22.04.2008. Thenafter
the Collector, Vadodara had given advertisement on 1.06.2008, in daily newspaper for
appointment of DGP&PP and invited the applications from eligible candidates. Pursuant to
this advertisement and after following due procedure as prescribed, by order dated
31.12.2009 one Mr. N.S. Shah was appointed as DGP&PP of Vadodara district for a period
of two years i.e. upto 31.12.2011. Thenafter, the term of Mr. N.S. Shah was extended for one
year i.e. up to 31.12.2012. Mr. N.S. Shah had remained in this office as Incharge DGP&PP
for the period between 01.04.2013 to 15.04.2013. 10. I say and submit that as the post of
DGO & PP, Vadodara was vacant an advertisement was given by the Collector, Vadodara
and the applications had been invited for the said post on 31.05.29013. Pursuant to this
advertisement dated 31.05.2013, in all 15 advocates had applied for the post of DGP & PP.
For the post of DGP & PP the qualification of necessary, as per Rule 5(1) of Law Officers
Rules. The Rules 5(1) is quotes hereinbelow:
5. Qualifications and eligibility:
1) No person shall be qualified to be appointed as the Public Prosecutor in the High Court or
the District Court, the Government Pleader in the High Court, District Court or other Court
or Tribunal unless( a) he has at least ten years standing as an advocate of the High Court or
District Court of Gujarat; (b) he is not more than 60 years of age; and (c) he is an income
tax assessee for a period of at five years prior to his appointment.
As per this rule the candidate must have ten years experience as an advocate and he should
be below 60 years and also income tax assessee for at least 5 years prior to this appointment.

11. I say and submit that as per the advertisement dated 31.05.2013 the cutoff date for
submitting the application was 30.06.2013 and total 15 applications have been received and
hence, as per Section 24(4) the District Magistrate & District Judge had taken interview of
those applicants on 29.07.2013 and made a panel list of selected five candidates. A copy of
the selected panel list is annexed herewith and marked as Annexure RIII. In this panel list the
respondent no.3s name was also there with other four candidates. This panel list was
forwarded by the District Magistrate to the Secretary, Legal Department which has been
received by the Legal Department on 07.08.2013. After receiving the panel list and after
going through the record, it was found by the Legal Department that the documents related to
the income tax assessment are not there, with this file and hence by letter dated 19.02.2014,
those documents were called for by the Legal Department from the District Collector Office.
The submissions have been put on the files and it was forwarded to the State Government for
further proceedings. Then after as there was submissions by the Legal Department that the
documents related to the Income Tax papers are not available on record the State
Government had also taken view that these papers should be called for and then after, file
should be resubmitted to the State Government. This note has been made by the State
Government on 09.04.2015 and file was given back to the Legal Department for compliance.
During this period the Income Tax papers of the candidates have already been received by
the Legal Department from the District Collector, Vadodara on 01.04.2015. Hence, again the
file was resubmitted to the State Government for further proceedings on 16.04.2015. The
State Government after considering the documents which are on record and submissions
which have been put up by the Legal Department had selected respondent no.3 as ADP & PP
of Vadodara district. Hence by order dated 07.05.2015 respondent no.3 was selected as DGP
& PP of Vadodara district. 12. I say and submit that the allegations which have been levelled
by the present petitioner that the procedure for appointment of the respondent no.3 as DGP
& PP is not followed is not true as stated hereinabove as per the provisions of law the entire
proceedings have been followed by the State Government and then after the appointment of
respondent no.3 was made. Even otherwise it is not stated in the present petition by the
petitioner before this Honble court that how the respondent no.3 is not qualified for the post
of DGP & PP. Even otherwise as per Rule 5(1) of Law Officers rules the respondent no.3 is
qualified for the same post.
7. STANCE OF THE RESPONDENT NO.3 i.e. THE APPOINTEE: The respondent No.3
has filed an affidavitinreply inter alia stating as under:

(a) I respectfully state that a similar petition as Public Interest Litigation was filed as Writ
Petition (PIL) No.125 of 2015 challenging the propriety and validity of appointment of
present respondent No.3, more or less on a same set of facts and on a similar ground, which
was heard by the Honble Division Bench and by an order dated 02.07.2015, the Honble
Division Bench and by an order dated 02.07.2015, the Honble Division Bench has dismissed
the same. A copy of the order dtd. 02.07.2015 in WP (PIL) No.125/2015 is annexed hereto
and marked as AnnexureR1 to the reply.
(b) Hence, I respectfully submit that in view of the rejection of said petition by Division
Bench, the present petition is also required to be rejected in the interest of justice.
(c) It is most respectfully submitted that the petitioner does not have any locus to file the
aforesaid petition as he has not shown any cause whatsoever for any infringement of the
fundamental rights guaranteed by Constitution, to the adverse interest of the present
petitioner nor in any petitioner is likely to be affected, in a matter of appointment of
respondent No.3 as D.G.P. and Public Prosecutor of Vadodara and therefore present petition
filed by the petitioner is not maintainable as per the established provisions of law.
(d) I state that the petitioner has ventilated himself as a social worker in para 2 of the
petition and attempted to show that the present petition as if is filed for public purpose. I
hereby invite the attention of the Honble Court that the petitioner appears to be busybody
and habitual to file black mailing complaints against the Government Officers and judicial
officers. The petitioner is in the nature to harass the officers if such officer is not concurred
with his intention or with his oblique motive. I herewith produce the copy of certified report
submitted by the Police Inspector, City Police Station, submitted to the Criminal Court,
Vadodara dated 16/2/2013 as Annexure R/2, wherein the entire history of the present
petitioner has been reported to the Honble Criminal Court at Vadodara.
Sr. No. FIR No. Complainant Sections
1. M Case No.61/99 dtd.16/4/99 Kashinath Babubhai Yadav 464, 465, 467, 471 114 of IPC
before First Court Vadodara
2. Criminal Case No.3221/96 dd.2/9/96 Kaniyalal Nanakram Relvani 406, 415, 420, 506(2)
and 114 of IPC
3. Cr.P.C. 202 Inq. No.0/5/06 Anajnaben Ashokbhai Santwani 467, 468, 471 and 114 of IPC
before Chief Court, Sayanjiganj Police Station

4. Inq. No.0/13/01 Kailash @ Sony Kaniyalal Jagyasi 506, 504, 342 of IPC before First
Court Vadodara City
5. Vadi I C.R. No.52/06 as per provisions of section ; 15(2) of Contempt of Court Act Santosh
G. Sankhvani Lachchu Bhuriya declared in the Court that he filed application before the
Honble High Court for direction of remand and bail, but the said application was
dismissed. (First Court Vadodara)
6. Criminal Case No.7302/07 dtd. Santosh G. Sukhwani 500, 501A,B, 502 and 34 of IPC
before Second 17/04/07 Court Vadodara City
7. Criminal Case No.8453/07 dtd. 23/04/07 Santosh G. Sukhwani 500, 501A,B, 502 and 34 of
IPC before Second Court Vadodara City
8. Criminal Case No.18155/07 Kishanchand Ishardas Nathani 500, 34 and 114 of IPC before
First Court Vadodara City
9. Criminal Case No.16773/07 Jagdish K. Ramani 500, 506 and 34 of IPC before Second
Court Vadodara City
10. Criminal Case No.1232/07 15( 2) of Contempt of Court Act before District Court
Vadodara.
Sr. No. FIR No. Complainant Sections
1. Application dtd.30/10/2005 Vedprakash Melumal Arya 406, 420, 488, 451, 465, 467, 468,
471, 384, 506(2), 120(B) of IPC
2. Application dtd.10/11/2005 given to A Division Vedprakash Melumal Arya 406, 420, 488,
451, 465, 467, 468, 471, 384, 506(2), 120(B) of IPC
3. Application dtd.19/10/2006 given to CID crime Vedprakash Melumal Arya and Police
Commissioner / officers 107, 120B, 166, 167, 177, 192, 196, 197, 199, 200, 201, 211, 220,
341, 342, 465, 466, 471, 474, 504, 506(2) of IPC Resolution has been passed against Laxman
@ Lachchu Bhuriyo Rupchand Meghvani by Bar Association Vadodara.
Sr. No. FIR No. Complainant Sections
1. 19/05/07 For filing false complaint against harassing the Police Commissioner Vadodara
City people/businessmen

2. 13/03/08 For legally search of complaint filed before Panigate Police Station Police
Commissioner Vadodara City
(e) I state that by way of present petition the petitioner has challenged the propriety and
validity of the appointment of respondent No.3 as D.G.P. and Public Prosecutor.
(f) It is most respectfully submitted that the petitioner has prayed for a discretionary relief
which is in the nature of Public Interest and the said petition is filed when the W.P. (PIL)
being 125/2015 did come to be dismissed by this Honble Court and hence a writ of
quowarranto would not lie once that the issue at hand is already decide by the Division
Bench of this Honble Court.
(g) It is most respectfully submitted that I am holding the Sanad of Advocate of Bar Council
of Gujarat since from 1986 and thereby my tenure as a practicing lawyer is about 29 years.
(h) I state that I was selected as Addl. Public Prosecutor and Asstt. Government Pleader in
the year 1996 and appointed as such in the year 1997 and I had worked on the said post upto
2002, and during the said period in last two years I was holding the charge of DGP and
Public Prosecutor of Vadodara district.
(i) It is most respectfully submitted that I was thereafter appointed as DGP and PP by order
dated 25/2/2002 for a period of one year and thereafter, I was again appointed as DGP and
PP for a period of two years from date 11/2/2003 to 26/2/2005.
(j) I state that I was reappointed as DGP and PP by the respondent State Government by
order dated 4/3/2005 for a further period of one year. I further state that there after also I
was again appointed as DGP and PP by the respondent authority by order dated 23/5/2006
and the said appointment was continued up to 3/3/2008. Thus, even after the said judgment
of Honble S.C. passed in a best bakery case, I was repeatedly appointed as a PP and DGP
without any objections from any of the section of public at large.
(k) I state that hundreds of cases have been conducted by me and nothing as been found
adverse against me by the State Government, nor any Investigating agency nor by any
accused nor by anybody and nobody had raised any adverse finger against me with regards
to the discharge of my duty and function as DGP and PP.
(l) Thus, it is entirely false facts conveyed by the petitioner that I was removed from the post
of PP and DGP after the judgment of Honble S.C. in a best bakery case. Hence, patently the
petition is filed on the basis of false facts, the event which never took place had been cited as

a ground for seeking the prayer in the petition, and therefore, the petition deserves to be
dismissed.
(m) I state that some other senior persons who selected in the year 2010 as PP and DGP who
has been relieved in the year 2013 and thereafter the said post was vacant. The respondent
authority thereupon published the advertisement in the daily newspaper as well as on the
notice Board of District Court as well as on the notice board of Collector, inviting the
application for the said post. It appears that some advocates had applied for the said post
pursuant to the said advertisement and I had also applied for the said post. All such
advocates including myself, who applied for the said post, were called for the interview by
the respondent District Magistrate and the respondent D.M. appears to have made effective
consultation with the Honble District and Sessions Judge and thereupon the panel of names
of the persons appears to have been prepared for a persons to whom the respondent D.M.
considered to be appointed as DGP and P.P.
(n) It is submitted that my name was included in the panel on merits, as I am satisfying the
statutory eligibility criteria couple with a 29 years experience as lawyer, coupled with an
experience as a A.P.P. and P.P. for a period of about more than 11 years and therefore, my
appointment is absolutely within the four corner of law, which warrants no interference of
this Honble Court in the interest of justice.
(o) I state that I am holding the eligibility criteria as per the provisions of Section 24 of
Cr.P.C. read with provisions of Rule 5(1) of Law Officers Rule, namely; (1) 10 years standing
as an advocate of the district court of Gujarat, (2) not attained the age of 60 years and (3) I
am Income Tax assessee for a period of at least five years prior to my appointment.
(p) Thus, my appointment as DGP and PP does not lack the eligibility criteria nor the same
is contrary to the statutory Rules, nor a procedure laid down under Section 24 of Cr.P.C. has
not been followed. Therefore, the jurisdiction to issue a quo warranto should not be exercised
by this Honble Court in view of settled law laid down by the Honble Supreme Court.
(q) I state that the State Government had never lost the confidence from me even after the
remark of the Honble Supreme Court in the best bakery case and so far as suitability is
concerned, the same was assessed in my favour even after the judgment delivery by the
Honble Supreme Court.

(r) In the aforesaid background of facts the said petition deserves to be dismissed with
exemplary costs. I most respectfully beg to raise the following preliminary contentions with
regard to the maintainability of this petition:
I. I state that so far as the ground pertaining to a violation of Section 24 of the Cr.P.C. and
Law Officers Rules are concerned, it is stated that the provisions of the said Law and Rules
have been strictly complied with and there is no violation of any of the provisions of Section
24 nor of any of the Rules of Law Officers Rules.
II. I state that in the judgment of the Honble Supreme Court, nowhere it is stated that the
respondent no.3 has been disqualified and debarred either temporary or permanently, to be a
D.G.P. and Public Prosecutor, if the respondent NO.4 otherwise eligible under the provisions
of law and/or the Rules, to be selected as D.G.P. and Public Prosecutor.
III. It is most respectfully submitted that even after the said judgment the respondent no.3 has
continued to be in office till 2008 and none has raised any objection whatsoever.
IV. It is pertinent to note that the observations made by the Honble Supreme Court, in no
strength of imagination would adversely affect of the eligibility criteria of the respondent
no.3.
SUBMISSIONS ON BEHALF OF THE WRIT APPLICANTS:
8. Mr. B. B. Naik, the learned senior advocate appearing with Shri R.J. Goswamy in the
Special Criminal Application No.3734 of 2014, Mr. Mihir J. Thakore, the learned senior
advocate appearing with Mr. Salil Thakore in the Special Criminal Application No.5372 of
2015 and Mr. Virat G. Popat, the learned advocate appearing in the Special Criminal
Application No.4360 of 2015 for the respective writ applicants made the following
submissions:
(1) It is an express as well as implied statutory requirement of Section 24 of the Cr.P.C. that
the person is fit and suitable for being appointed as the Public Prosecutor. Fitness and
suitability is the statutory eligibility criteria. The District Magistrate and the Sessions Judge
are under a legal obligation to thoroughly examine the issue of fitness and suitability of the
candidates before placing them in the panel list.
(2) It was vociferously submitted that the socalled consultative process was nothing, but an
eyewash. It was submitted that in fact, there was no consultation at all. It was submitted that

giving marks to each of the candidates, after the completion of the interview, could hardly be
termed as an effective consultation.
(3) It was submitted that the requirements of fitness and suitability being the statutory
requirements of Section 24 of the Cr.P.C. the breach of the same would amount to breach of
the statutory rules. It was submitted that after the names of the candidates were forwarded by
the District Magistrate to the State Government, the State Government was also obliged to
undertake some independent inquiry or exercise before selecting a particular person for being
appointed as the Public Prosecutor. The learned counsel submitted on the basis of the
materials on record that without any further inquiry or exercise, the Law Minister put an
endorsement on the file that Shri Pandya be appointed as the Public Prosecutor. The learned
counsel submitted that an independent inquiry and some exercise is required at the end of the
State Government before finalizing a particular name because when a panel is prepared by
the District Magistrate in consultation with the Sessions Judge, all the persons named therein
in the panel are fit to be appointed. If, according to Section 24, Cr.P.C., a panel of names of
persons, who in the opinion of the District Magistrate are fit to be appointed as Public
Prosecutor, is to be forwarded to the State Government, then the State Government owes an
obligation to consider who is the fittest amongst the candidates named in the panel. The State
Government cannot according to its own sweet will and wish pickup a particular person of its
choice and appoint him as the Public Prosecutor.
(4) It was further submitted that the marksheet alone can never be construed as an opinion
under Section 24 of the Cr.P.C. and the giving of marks alone can never amount to formation
of an opinion.
9. The contentions could be summarized as under:
(a) Nonconsideration of relevant material
(b) No proper and effective consultation or deliberation
(c) No written opinion as to fitness and suitability and absence of communication to the State
Government on the aspect of suitability and fitness.
(d) There is nothing on record that an opinion as to suitability and fitness was formed by the
District Judge in consultation with the Sessions Judge.
(e) Preparing a panel of names only on the basis of the marking system vitiates the entire
decision making process and runs contrary to Section 24 of the Cr.P.C.

(f) If at all the marking system is to be adopted, the same should be based on some objective
criteria. The stance of the State Government that it thought fit to appoint Shri Pandya as the
Public Prosecutor as he had secured the highest marks goes to show that the State
mechanically appointed Shri Pandya, more particularly, when in the past, the State itself had
rejected Shri Pandya on the ground that he was not fit to be appointed as the Public
Prosecutor.
(g) The decision to appoint Shri Pandya as the Public Prosecutor was against the public
interest and the same has shaken the confidence of the people in the justice delivery system.
10. The learned counsel appearing for the writ applicants placed reliance on the following
decisions:
(1) Harlal Singh Chauhan and others v. State of U.P. [(1993) 3 SCC 552 (para 10)]
(2) State of U.P. and another v. Johari Mal [(2004) 4 SCC 714 (paras 39, 40, 43 to 46)]
(3) Central Electricity Supply Ulitity of Odisha v. Dhobei Sahoo and others [(2014) 1
SCC 161]
(4) Centre for PIL and another v. Union of India and another [(2011) 4 SCC 1 (paras 2,
36, 37, 42, 43, 45)]
(5) State of U.P. v. Johrimal, AIR 2004 SC 3800
(6) Mundrika Prasad Sinha v. State of Bihar [AIR 1979 Sc 1981 (para 15]
(7) Kumari Shrilekha Vidyarthi v. State of U.P. [AIR 1991 SC 537 (para 12, 1420]
(8) A. Mohambaram v. M.A. Jayavelu, [AIR 1970 Madras 63 (para 5, 7 and 10)]
(9) Vijay Shakar Mishra v. State of U.P. [1999 Cri. Law Journal 521 (para 45, 87)]
(10) N. Kannadasan v. Ajoy Ghose [(2009) 7 SCC 1].
11.

SUBMISSIONS

ON

BEHALF

OF

THE

STATE

GOVERNMENT:

11.1 Mr. Kamal Trivedi, the learned Advocate General appearing for the State vehemently
opposed the writ applications and submitted that a writ of quo warranto cannot be prayed for
as a matter of right. He submitted that a writ of quo warranto can be issued by the Court in
exercise of its power under Article 226 of the Constitution of India only if it is pointed out
that the person is an usurper of the public office. Such person could be said to be the usurper
of the public office only if he is not otherwise qualified or eligible for being appointed to the

post.
11.2 Mr. Trivedi submitted that the respondent No.3, by any stretch of imagination, cannot be
said to be an usurper of the public office. He was included in the panel list along with the
others and being found meritorious the most, the State Government thought fit to appoint him
as

the

Public

prosecutor.

11.3 Mr. Trivedi submitted that there is a vital difference between the judicial review and
merit review. The consultation forms part of the procedure to test the fitness of a person to be
appointed as the Public Prosecutor under Section 24 of the Cr.P.C. Once there is a
consultation, the content of that consultation is beyond the scope of judicial review. Mr.
Trivedi submitted that eligibility is an objective factor. When eligibility is to be in
question, it could fall within the judicial review. However, the question as to who should be
appointed, which essentially involved the aspect of suitability, stands excluded from the
purview

of

judicial

review.

11.4 Mr. Trivedi vehemently submitted that the challenge in all the three writ applications is
to the suitability of the respondent No.3 appointed as the Public Prosecutor. He submitted that
in a writ application for a writ of quo warranto, the Court should not go into the issue of
suitability or rather it is impermissible in law for the Court to consider the same.
11.5 Mr. Trivedi submitted that so far as the observations of the Supreme Court are
concerned, they were made way back in the year 2004, and that too, in connection with one
particular trial. Such remarks passed by the Supreme Court would not entail disqualification
from being appointed as the Public Prosecutor for all times to come. Mr. Trivedi submitted
that it is true that the Supreme Court did make certain observations against the respondent
No.3 so far as his conduct as the Public Prosecutor in the controversial trial is concerned, but
that, by itself would not make him unfit or unsuitable for being appointed as the Public
Prosecutor

after

period

of

eleven

years.

11.6 Mr. Trivedi submitted that the decision of the Supreme Court is of the year 2004, even
thereafter, the respondent No.3 had continued to function as the Public Prosecutor upto
23.04.2008 and that too, pursuant to a fresh appointment dated 04.03.2005.

11.7 Mr. Trivedi laid much emphasis on the fact that all the three writ applications lack in
bona fide and could not be said to have been preferred in good faith. Mr. Trivedi further
pointed out that the appointment of the respondent No.3 was made a subject matter of
challenge before this Court by way of a Public Interest Litigation and such petition was
ordered to be rejected by a Division Bench vide order dated 02.07.2015 passed in Writ
Application (PIL) No.125 of 2015. Thus, according to Mr. Trivedi, the three writ applications
herein are not maintainable as they would be hit by the doctrine of res judicata.
11.8 Mr. Trivedi submitted that in such circumstances, referred to above, all the three writ
applications

deserve

to

be

rejected.

11.9 Mr. Trivedi placed reliance on the following decision in support of his submissions:
(1) Rajiv Ranjan Singh v. Union of India [2006 (6) SCC 613 (paras 5, 50, 51, 52)]
(2) State of Uttar Pradesh v. Rakesh Kumar Keshari [2011 (5) SCC 341 (paras 14 to 17
and 35 to 37)]
(3) Registrar General, High Court of Madras v. R. Gandhi and others [(2014) 11 SCC
547 (paras 7 to 9 and 24 to 25)
(4) Central Electricity Supply Utility of Odisha v. Dhobei Sahoo and others [(2014) 1
SCC 161 (paras 21 and 47)
(5) Hari Bansh Lal v. Sahodar Prasad Mahto and others [(2010) 9 SCC 655]
(6) The University of Mysore v. C.D. Govinda Rao and another [AIR 1965 SC 491 (paras
6 and 7)]
SUBMISSIONS ON BEHALF OF THE APPOINTEE:
12. Mr. P.R. Thakkar and Mr. Shalin Mehta, the learned senior advocates appearing for the
appointee i.e. the respondent No.3 vehemently opposed the writ applications and submitted
that they deserve to be rejected as they lack in bona fide and cannot be said to have been
preferred in good faith. The learned counsel submitted that the observations of the Supreme
Court in the case of Zahira Sheikh (supra) so far as the appointee is concerned could hardly
be termed as adverse remarks. It was submitted that such remarks would not render the
respondent No.3 unfit and unsuitable for the post. It was submitted that it is a settled
position of law that no man should be condemned unheard. The Supreme Court made certain
disparaging remarks without any notice to the respondent No.3, and if that be so, then it

should be construed that the Supreme Court never wanted to condemn the respondent No.3,
because if that would have been so, then the Supreme Court would have given an opportunity
to the respondent No.3 to make good his case as regards his role as the Public Prosecutor.
Therefore, according to the learned counsel, the remarks of the Supreme Court were in
connection with one particular case and the same would not be a certificate for all times to
come that the respondent No.3 should not be appointed to the post of the Public Prosecutor. It
was submitted that the litigation of the present type should not be encouraged considering the
criminal history of one of the petitioners. The details of the history has been stated in the
affidavitinreply which goes to show that they are just name lenders. Mr. Thakkar as well as
Mr. Mehta placed reliance on the following decisions in support of their submissions:
(1) Vinoy Kumar v. State of U.P. and others [(2001) 4 SCC 734]
(2) Hari Bansh Lal v. Sahodar Prasad Mahto and others [(2010) 9 SCC 655]
(3) Mahesh Chandra Gupta v. Union of India and others [(2009) 8 SCC 273]
(4) Janata Dal v. H.S. Chaudhary and others [(1992) 4 SCC 305]
(5) Om Prakash Chautala v. Kanwar Bhan and others [(2014) 5 SCC 417]
(6) Awani Kumar Upadhyay v. High Court of Judicature of Allahabad and others
[(2013) 12 SCC 392]
13. In such circumstances, referred to above, it is prayed that there being no merit in any of
the

writ

applications,

they

be

rejected

with

costs.

ANALYSIS:
14. Having heard the learned counsel appearing for the parties and having gone through the
materials on record, the only question that falls for my consideration is whether the
appointment of Shri Pandya as the Public Prosecutor could be said to be in accordance with
the provisions of law and the rules governing such appointment.
15. It appears from the materials on record that the respondent No.3 has not been appointed
as the Public Prosecutor for the first time. In the past also, he was appointed and the details of
his appointment and tenure is as under: Sr. No. Date of Appointment Date on which the term
expired Time span Post of the Respondent No.3
1. 27.02.1997 01.06.2000 26.02.2002 26.02.2002

5. years
2. years A.PP. Incharge DGP & PP
2. 27.02.2002 26.02.2003 1 year DGP & PP
3. 27.02.2003 26.02.2003 2 years DGP & PP
4. 04.03.2005 03.03.2008 3 years DGP & PP Extended till 23.04.2008 i.e. completion of the
term
5.

07.05.2015

31.12.2017

For

period

of

years

DGP

&

PP

WRIT OF QUO WARRANTO:


16. Quo warranto is a judicial remedy against an intruder or usurper of an independent
substantive public office or franchise or liberty. The usurper is asked 'by what authority' (quo
warranto) he is in such office, franchise or liberty. A writ of quo warranto thus poses a
question to the holder or occupier of a public office, and that question is : Where is your
warrant of appointment by which you are holding this office ? If the answer is not
satisfactory, the usurper can be ousted by this writ.
17. The writ of quo warranto is an ancient Common Law remedy of a prerogative nature. It
was a writ of right used by the Crown against a person claiming any office, franchise or
liberty to inquire by what authority he was in the office, franchise of liberty. In case his claim
was not well founded or there was nonuse, neglect, misuse or abuse of the office, he was to
be ousted.
18. Quo warranto is a writ that lies against a person who usurps any franchise, liberty or
office. In Corpus Juris Secundum, quo warranto is defined thus;
Quo warranto is a proceeding to determine the right to the exercise of a franchise or office
and to oust the holder if his claim is not well founded, or if he has forfeited his right.
Blackstone, states :
The ancient writ of quo warranto was in the nature of a writ of right for the King against any
office, franchise or liberty of the Crown to inquire by what authority he supported his claim,
in order to determine the right.
Quo warranto is a remedy or procedure whereby the State inquires into the legality of the
claim which a party asserts to an office or franchise, and to oust him from its enjoyment if the

claim be not well founded, or to have the same declared forfeited and recover it, if, having
once been rightfully possessed and enjoyed; it has become forfeited for misuser or nonuser.
19. In B.R. Kapur v. State of T.N. [(2001) 7 SCC 231 : AIR 2001 SC 3435], after referring to
Halsbury's Laws of England , Words and Phrases and leading decisions on the point, it was
observed that a writ of quo warranto is a writ which lies against the person who is not entitled
to hold an office of public nature and is only a usurper of the office. Quo warranto is directed
to such person who is required to show by what authority he is entitled to hold the office. The
challenge can be made on various grounds, including the ground that the possessor of the
office does not fulfill the required qualifications or suffers from any disqualification, which
debars him to hold such office. It was further stated that on being called upon to establish
valid authority to hold a public office, it such person fails to do so, a writ of quo warranto
shall be directed against him. It shall be no defence by the holder of the office that the
appointment was made by the competent authority, who under the law is not answerable to
any court for anything done in performance of duties of his office. The question of fulfilling
legal requirements and qualifications necessary to hold a public office would be considered in
the proceedings independent of the fact as to who made the appointment and the manner in
which the appointment was made.
20. Any person may challenge the validity of an appointment of a public office, whether any
fundamental or other legal right of his has been infringed or not. But the court must be
satisfied that the person so applying is bona fide and there is a necessity in public interest to
declare judicially that there is an usurpation of public office. If the application is not bona
fide and the applicant is a mere pawn or a man of straw in the hands of others, he cannot
claim the remedy. Though the applicant may not be an aspirant for the office nor has any
interest in appointment, he can apply as a private relator, or an ordinary citizen.
21. In Dr. B. Singh vs. Union of India and Others, (2004) 3 SCC 363, Supreme Court held
that only a person who comes to the Court with bonafides and public interest can have locus.
Coming down heavily on busybodies, meddlesome interlopers, wayfarers or officious
interveners having absolutely no public interest except for personal gain or private profit
either of themselves or as a proxy of others or for any other extraneous motivation or for
glare of publicity, the Supreme Court at para 14 of the report held as under : "The court has
to be satisfied about: (a) the credentials of the applicant; (b) the prima facie correctness or
nature of information given by him; and (c) the information being vague and indefinite. The

information should show gravity and seriousness involved. Court has to strike a balance
between two conflicting interests: (i) nobody should be allowed to indulge in wild and
reckless allegations besmirching the character of others; and (ii) avoidance of public
mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable
executive actions. In such case, however, the court cannot afford to be liberal. It has to be
extremely careful to see that under the guise of redressing a public grievance, it does not
encroach upon the sphere reserved by the Constitution to the executive and the legislature.
The court has to act ruthlessly while dealing with imposters and busybodies or meddlesome
interlopers impersonating as public spirited holy men. They masquerade as crusaders of
justice. They pretend to act in the name of pro bono publico, though they have no interest to
the public or even of their own to protect.
22. In my opinion, one of the most important conditions which the person seeking a writ of
quo warranto must satisfy is that the office in question is a public office and the same is of a
public nature. If this condition is satisfied, only in such a case the Court may proceed further
to inquire as to whether the appointment to the public office is really in violation of statutory
rules and regulations or any provision of law. To examine this question, I need to understand
the true meaning of the word public office. Public Office has not been defined under the
Cr.P.C. Public Office as explained by the Major Law Lexicon 4th Edition 2010 is as
under :
Public Office defined. 556 V. c.40 S.4 A position whose occupant has legal authority to
exercise a government's sovereign powers for a fixed period. Position involving exercise of
governantal functions [S.6(f), T.P. Act (4 of 1882)]; an office where public business is
transacted. [O.XIII, R.5(2), CPC (5 of 1908)]. A public office is the right, authority and duty
created and conferred by law, by which an individual is vested with some portion of the
sovereign functions of the government to be exercised by him for the benefit of the public, for
the term and by the tenure prescribed by law. It implies a delegation of a portion of the
sovereign power. It is a trust conferred by public authority for a public purpose, embracing
the ideas of tenure, duration, emoluments and duties... . The determining factor, the test, is
whether the office involves a delegation of some of the solemn functions of government,
either executive, legislative or judicial, to be exercised by the holder for the public
benefit. (72 CWN 64, Vol.72). [Extraordinary Legal Remedies, by Ferris as referred in V.C.
Shukla v. State (Delhi Adm.), (1980) Supp SCC 249, 266 para 26] In Re Miram's (1891) IQB
594 Cave. J,. Said to make the Office a Public Office the pay must come out of national and

not out of local funds, the Office must be public in the strict sense of that term. It is not
enough that the due discharge of the duties should be for the public benefit in a secondary
and and remote sense.
23. According to the Black's Law Dictionary 6th Edition, the term Public Office is
explained as under :
Public Office. Essential characteristics of public office are (1) authority conferred by law,
(2) fixed tenure of office, and (3) power to exercise some portion of sovereign functions of
government; key element of such test is that officer is carrying out sovereign function.
Spring v. Constantino, 168 Conn. 563, 362 A.2d 871, 875. Essential elements to establish
public position as public office are position must be created by constitution, legislature, or
through authority conferred by legislature, portion of sovereign power of government must be
delegated to position, duties and powers must be defined, directly or impliedly, by legislature
or through legislative authority, duties must be performed independently without control of
superior power other than law, and position must have some permanency and continuity.
State ex rel. Eli Lilly and Co. v. Gaertner, Mo.App., 619 S.W. 2D 761. 764.
24. Winfield on pages 463 to 478 of Volume LXI of the Law Quarterly Review. On page 464
the learned author poses the question, what is a Public Office and proceeds,
Setting aside statutory definitions of interpretations thereof, two judicial explanations are as
follows : In 1828, Best, C.J. described a Public Officer as every one who is appointed to
discharge a public duty, and receives a compensation in whatever shape, whether from the
Crown or otherwise. In 1914, Lawrence, J. said : A public officer is an officer who
discharges any duty in the discharge of which the public are interested, more clearly so if he
is paid out of a fund provided by the public. Best, C.J. lays too much emphasis on
remuneration of some sort, for some public officers discharge their duties gratuitously; e.g.
the LordLieutenant of a country or a Justice of the Peace; and both definitions use the very
word which they purport to explain. However, the chief characteristics of a public office seem
to be that it is a post the occupation of which involves the discharge of duties towards the
community or some section of it and that usually those duties are connected with
Government, whether central or local. The author repeats these views in his text book of the
Law of Tort, on page 614 of the third edition; The chief characteristics of a 'Public Office'
(apart from any statutory definition) are that it is a post the occupation of which involves the
discharge of duties towards the community or some section of it, whether the occupier of the
post is or is not remunerated.

20. The following passage from page 427 of Volume IV Burrows is also of interest : To make
the office a public office, the pay must come out of national and not out of local funds, and
the office must be public in the strict sense of that term. It is not enough that the due
discharge of the duties of the office should be for the public benefit in a secondary and
remote sense. A public office includes the holding of a commission in the territorial Army,
or in any other of the armed forces of the Crown.
21. Reference may also be made to the passage on pages 146 and 147 of Volume 11 of
Halsbury's Laws of England, Simonds edition. The duties of the office must be of a public
nature. Thus, an information lay against a privy councilor, because, membership of the Privy
Council constitutes the holding of an office of a public nature.
WHETHER A PUBLIC PROSECUTOR HOLDS A PUBLIC OFFICE:
25. Public prosecutor holds a "Public Office". The primacy given to him under the Scheme of
Cr. P.C. has a "special purpose". Certain professional, official obligations and privileges are
attached to his office. His office may also be termed as an office of profit as he remains
disqualified to contest the election so long he holds the office though permanency is attached
to the office and not to the term of his office. His duties are of public nature. He has an
"independent and responsible character". He holds the public office within the scope of a
"quowarranto proceedings". Prosecutor is not a part of investigating agency but is an
"independent statutory authority". He performs statutory duties and functions. He holds an
office of responsibility as he has been enclothed with the power to withdraw the prosecution
of a case on the directions of the State Government (vide Mahadeo v. Shantibhai (1969) 2
SCR 422; Kanta Kathuria v. Manak Chand Surana, AIR 1970 SC 694; Madukar G. E.
pankaker v. Jaswant Chobbildas Rajani AIR 1976 SC 2283; Mundrika Prasad Sinha v. State
of Bihar, AIR 1979 SC 1871;K.C. Sud v. S.G. Gudimani, (1981) 2 Cr. L.J. 1779; Mukul Dalal
v. Union of India, (1988) 3 SCC 144;Hintendra Vishnu Thakur v. State of Maharashtra, AIR
1994 SC 2623; Rabindra Kumar Nayak v. Collector, Mayurbhanj, Orissa, AIR 1999 SC 1120
and State of U.P. v. Johrimal, AIR 2004 SC 3800 : (2004 All LJ 2650). 25.1 The Public
Prosecutor under Cr.P.C. has a special status, and his is a Statutory appointment. Under some
of

the

provisions

made

in

STATUTORY PROVISIONS:

the

Code,

he

receives

special

recognition.

26. Before adverting to the rival submissions canvassed on either side, I deem it necessary to
look into the few relevant provisions of the law and the rules governing the appointment of a
person as the Public Prosecutor. 26.1 Section 2(u) of the Cr.P.C. defines the public
prosecutor as under:
"pleader", when used with reference to any proceeding in any Court, means a person
authorised by or under any law for the time being in force, to practise in such Court, and
includes any other person appointed with the permission of the Court to act in such
proceeding;
26.2 Section 24 of the Cr.P.C. provides for the Public Prosecutors, which reads as under:
24. Public Prosecutors (1) For every High Court, the Central Government or the State
Government shall, after consultation with the High Court,appoint a Public Prosecutor and
may also appoint one or more Additional Public Prosecutors, for conducting in such Court,
any prosecution, appeal or other proceeding on behalf of the Central Government or State
Government, as the case may be.
(2) The Central Government may appoint one or more Public Prosecutors for the purpose of
conducting any case or class of cases in any district, or local area.
(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:
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one
district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor,
as the case may be, for another district.
(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of
names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or
Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State Government as the Public Prosecutor or
Additional Public Prosecutor for the district unless his name appears in the panel of names
prepared by the District Magistrate under subsection (4).
(6) Notwithstanding anything contained in subsection (5), where in a State there exists a
regular Cadre of Prosecuting Officers, the State Government shall appoint a Public
Prosecutor or an Additional Public Prosecutor only from among the persons constituting
such Cadre :

Provided that where, in the opinion of the State Government, no suitable person is available
in such Cadre for such appointment that Government may appoint a person as Public
Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names
prepared by the District Magistrate under subsection (4). [Explanation.For the purposes of
this subsection,
( a) "regular Cadre of Prosecuting Officers" means a Cadre of Prosecuting Officers which
includes therein the post of a Public Prosecutor, by whatever name called, and which
provides for promotion of Assistant Public Prosecutor, by whatever name called, to that post;
(b) "Prosecuting Officer" means a person, by whatever name called, appointed to perform
the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public
Prosecutor under this Code.]
(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public
Prosecutor under subsection (1) or subsection (2) or subsection (3) or subsection (6), only if
he has been in practice as an advocate for not less than seven years.
(8) The Central Government or the State Government may appoint, for the purposes of any
case or class of cases, a person who has been in practice as an advocate for not less than ten
years as a Special Public Prosecutor.
c ['Provided that the Court may permit the victim to engage an advocate of his choice to
assist the prosecution under this subsection'].
(9) For the purposes of subsection (7) and subsection (8), the period during which a person
has been in practice as a pleader, or has rendered (whether before or after the
commencement of this Code) service as a Public Prosecutor or as an Additional Public
Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name
called, shall be deemed to be the period during which such person has been in practice as an
advocate.]
27. I shall now look into the Rules, 2009. 27.1 Rule 2 (c) defines the District Government
Pleader as under: District Government Pleader means the Government Pleader appointed
for any district Court in the mofussil and includes Government Pleader appointed for the
Ahmedabd

City

Civil

Court;

27.2 Rule 2(j) defines the Public Prosecutor as under: Public Prosecutor means any

person appointed under section 24 of Code of Criminal Procedure, 1973 to be a Public


Prosecutor for Sessions Division and includes an Additional Public Prosecutor, Assistant
Public

Prosecutor

and

Special

Public

Prosecutor.

27.3 Rule 4 provides for the appointment of Law Officers. 27.4 Rule 4(6) relevant for my
purpose reads as under: The appointment of Public Prosecutor and Additional Public
Prosecutor in the District shall be made as per subsection (3) of section 24 of the Code of
Criminal

Procedure,

1973.

27.5 Rule 5 provides for the qualifications and eligibility to be appointed as the Public
Prosecutor in the District Court. The same reads as under: 5(1) No person shall be qualified
to be appointed as the Public Prosecutor in the High Court or the District Court, the
Government Pleader in the High Court, District Court or other Court or Tribunal unless( a)
he has at least ten years standing as an advocate of the High Court or District Court of
Gujarat; (b) he is not more than 60 years of age; and (c) he is an income tax assessee for a
period

of

at

least

five

years

prior

to

his

appointment.

27.6 Rule 6 (5) reads as under: In case of a gross negligence, misconduct and fraud
committed in conducting cases, the Government shall be entitled to initiate legal action
against the Law Officer even after the termination of his appointment.
28. The plain reading of Section 24 of the Cr.P.C. and the Rules, referred to above, makes it
clear that the District Magistrate in consultation with the Sessions Judge may prepare a panel
of names of persons, who are in the opinion of the District Magistrate fit to be appointed as
the Public Prosecutor. The use of the words fit to be appointed as Public Prosecutor and
suitable person goes to show that the fitness and suitability are the express statutory
requirements of Section 24. Apart from the eligibility criteria provided by the Rules so far as
the appointment as the Public Prosecutor is concerned, the other important eligibility criteria
is that such person should be fit to be appointed.
29. Meaning of the words fit to be appointed as Public Prosecutor and suitable
person:

Meaning

of

the

word

fit:

a) According to the Aiyars Law Lexicon (pg.1851, Vol.2, 3 rd Edition) , A fit person to
execute an office, is he qui melius etsciat et possit, officium illud intendere. This word
idoneus says Lord Coke, is oftentimes in law attributed to those who have any office or
function: and he is said in law to be idoneus, apt and fit to execute his office, who has three
things, honesty, knowledge and ability; honesty to execute it truly, without malice, affection,
or partiality; knowledge to know what he ought to duly to do; and ability, as well as in state
as in body, that he may intend and execute his office, when need in state in body, that he may
intend and execute his office, when need is, diligently, and not for impotency or poverty
neglect it; (Dwar, 685).
(b) According to the Blacks Law Dictionary (pg. 573, 5 th Edition) , Fit. Suitable or
appropriate. Comfortable to a duty. Adapted to, designed, prepared. (c) According to the
New Shorter Oxford English Dictionary (pg. 960, Vol. 1, 1993 edition), Adapted to the
requirements of the case, appropriate, suitable. Befitting the person or circumstances;
right,

proper.

Be

suited

to

or

appropriate

for.

29.1 The expression "fit to be appointed", as used in Section 24(4), Cr.P.C, is distinct from,
and is in addition to, the eligibility criterion stipulated in subsection (7) of Section 24. While
the eligibility criterion stipulated in Section 24(7) and (9), for being appointed as an
Additional Public Prosecutor, is practice as an advocate for not less than seven years,
(including service as a Public Prosecutor or Additional Public Prosecutor or Assistant Public
Prosecutor), "fitness" for appointment to the said post is more than mere "eligibility" for, if
fitness were to be construed as equivalent to eligibility, then the word "fit" used in subsection
(4) would be inapposite surplussage, as the eligibility criterion for appointment is stipulated
in Section 24(7) and (9) Cr.P.C. 29.2 What does fitness mean? The word "fit" means befitting
or meeting adequate standards. The New Oxford dictionary of English (Indian Edition)
explains the word "fit" as of a person having the requisite skills to undertake something
competently. The essential requirement of fitness, under Section 24(4) Cr.P.C, is that the
person should be suitable for doing the particular work, which is different from his eligibility.
(Mrs. Neelima Sadanand Vartak v. State of Maharashtra (AIR 2005 Bom 431)). The District
Magistrate is required to form an opinion that a person is fit to be appointed as an Additional
Public Prosecutor before he prepares a panel of names of persons to be appointed to the said
post. Meaning of the word suitable: (a) According to the Blacks Law Dictionary (pg.

1286, 5 th Edition) , Suitable. Fit and appropriate for the end in view. (b) According to
the New Shorter Oxford English Dictionary (pg. 3136, Vol. 2, 1993 Edition),
Agreeing in nature, condition or action; corresponding, analogous. That is fitted for or
appropriate for a purpose, occasion, persons character.
30. Thus, the above would suggest that the word fit would mean fitness in the context of
the role and duties attached to the position or the post in question. The appointee is, therefore,
required to be fit and suitable for, (a) holding the independent office of the Public Prosecutor
in the manner in which it is required to be held under the law; (b) for being able to perform
the duties and functions that are required to be performed by the Public Prosecutor in the
manner in which they are expected to be performed under the law.
31. In the case of House of Lords in R v. Crown Court (2002) 1 WLR 1954, it has been
observed as under:
Secondly, some consideration must be given to the expression fit and proper person. This
a portmanteau expression, widely used in many contexts. It does not lend itself to semantic
exegesis or paraphrase and takes its colour from the context in which it is used. It is an
expression directed to ensuring that an applicant for permission to do something has the
personal qualities and professional qualifications reasonably required of a person doing
whatever it is that the applicant seeks permission to do... (para 9, emphasis supplied)
32. The Supreme Court in the case of N. Kannadasan v. Ajoy Ghose [(2009) 7 SCC 1],
observed as under:
... He may not, however, be reappointed if it is found that he is otherwise disqualified
therefor, namely, to satisfy the test of fitness and suitability; physical intellectual and moral,
before the Central Government can, consistently with its constitutional obligation and in
public interest, decide to reappoint him as an Additional Judge or appoint him as a
Permanent Judge. (para 28, emphasis supplied)
33. The fitness and suitability could also be said to be implied inbuilt requirements of Section
24 of the Cr.P.C. as well as Rule 4 of the Rules, 2009 and only a person who is fit and
suitable and who possess impeccable integrity and character can be appointed as the Public
Prosecutor.
34. In N. Kannadasan (supra), it is observed that fitness and suitability, physical intellectual
and moral are matters that are required to be considered before making an appointment, that
the words is or has been a Judge of a High Court appearing in Section 16 of the Consumer

Protection Act have been interpreted to cover not any person who has been a Judge but a
person who has retired from service without any blemish, that eligibility of a Judge of a High
Court should not be considered in a pedantic manner but must be held to include suitability of
the person concerned which includes his character and integrity.
35. In State of Punjab vs. Salil Sabhlok, [(2013) 5 SCC 1], the Supreme Court observed
that the office of the Chairman of the Public Service Commission must be manned by
competent, honest and independent persons of outstanding ability and high reputation, that it
is necessary that society does not lose confidence in the Commission, that in addition to
express restrictions there are also implied restrictions in a statute and that adverse comments
made by the Central Administrative Tribunal in the judicial proceedings ought to have been
taken note of by the appointing authority.
36. In the case of Centre for PIL and another v. Union of India [(2011) 4 SCC 1] emphasis
was placed on the necessity to make the appointment keeping in mind the need for the
institutional integrity and to take into consideration what is good for the institution and not
what is good for the appointee.
37. It may not be out of place to state at this stage that neither Section 16 of the Consumer
Protection Act, 1986 (Appointment of President of State Commission) nor Article 217 of the
Constitution of India (Appointment of a High Court Judge) nor Article 316 (Appointment of
Chairman of Public Service Commission) nor Section 4 of the Central Vigilance Commission
Act 2003 (Appointment of Central Vigilance Commissioner) specifically state that the
appointee must be fit or suitable or must be a person of integrity and character. However,
fitness and suitability have been read into the provisions by the Supreme Court as implied
requirements considering the nature of the role and the duties to be discharged by the person
holding the said position and thereby, giving to the provisions a purposive interpretation
keeping in mind the purpose sought to be achieved.
38.

OFFICE

OF

THE

PUBLIC

PROSECUTOR:

38.1 Role and function: The office of the Public Prosecutor involves duties of public nature
and of vital interest to the public. Sections 199(2), 225, 302, 308, 378, 301, 385(1) and 321 of
the Cr.P.C. are some of the provisions in the Cr.P.C., which confers a special position upon
the Public Prosecutor. This would go to show that a Public Prosecutor is not just an advocate
engaged by the State to conduct its prosecutions. The importance of the office from the point

of view of the State and Community, is brought out in Section 321, Cr.P.C. which vests in the
Public Prosecutor a discretion to apply to the Court for its consent to withdraw from the
prosecution of any person. The consent, if granted, has to be followed by the discharge of the
person or his acquittal as the case may be. 38.2 There cannot be any doubt that there is a
public element attached to the office or the post of the Public Prosecutor appointed under
Section 24, Cr.P.C. They hold the office or statutory post which may be different from other
post which a public servant holds in the Government office, but it cannot be denied that there
is a public element attached to such office or post. The Public Prosecutors are officers of
the Court who assist the Courts in the process of dispensation of justice.
38.3 The Criminal law enforcement system investigates crimes and prosecutes offenders. It
must also protect valued rights and freedoms, and convict only the guilty. The prosecutor
must recognize these different and competing interests. He should strike a fair balance
between the competing interests of convicting the guilty, protecting citizens' rights and
freedoms and protecting the public from criminals. Prosecutors should ensure that
prosecutions are conducted in a diligent, competent and fair manner. The importance of the
office of the Public Prosecutor cannot be overemphasized. The Public Prosecutor must be a
person of high merit, fair and objective, because upon him depends to a large extent the
administration of criminal justice. The office of the Public Prosecutor is a public office and
the incumbent has to discharge statutory duties. The person appointed as Public Prosecutor
must, therefore, be one who is not only able and efficient, but also enjoys a reputation and
prestige which satisfy his appointment as a Public Prosecutor.
(Reyasat Ali Khan v. State of Bihar (1996) 2 Crimes 358). The duty of the prosecutor is to
assist the Court in reaching a proper conclusion in regard to the case which is brought before
it for trial.
(Darya Singh v. State of Punjab (1964) 3 SCR 397 : (AIR 1965 SC 328)). The prosecutor has
to be fair in the presentation of the prosecution case. He must not suppress or keep back from
the court evidence relevant to the determination of the guilt or innocence of the accused. He
must present the complete picture, and not a one sided picture. He must not be partial to the
prosecution or to the accused. He has to be fair to both sides in the presentation of the case.
(Prabhu

Dayal

Gupta

v.

State

(1986

Cri

LJ

383

(Del).

38.4 A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of
the accused somehow or the other irrespective of the true facts of the case. The expected
attitude of the Public Prosecutor while conducting prosecution must be couched in fairness
not only to the Court to the investigation agencies but to the accused as well. If an accused is
entitled to any legitimate benefit during trial, the Public Prosecutor should not scuttle/conceal
it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it
available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has
the added responsibility to bring it to the notice of the Court, if it comes to his knowledge.
39. Law Officers are one of the important wheels of the chariot, driven by the Judges to attain
the cherished goal of humanbeing to secure justice against the wrong doers. The main object
of the State is to curb the crime, investigate and prosecute the offenders and punish them,
with a view to maintain law and order, amity and harmony, tranquility and peace. The various
provisions of the Code of Criminal Procedure and the Rules provide the manner and
procedure by which the public prosecutor should be appointed and provide assistance to the
Courts. The object of the Code and the Rules is to appoint the best among the lawyers as the
public prosecutor to provide assistance to the Court. The people have the vital interest in the
matter. 39.1 A Public Prosecutor is more than an advocate of the litigant. He holds a public
office. His duties are of public nature. It is not only the State but also the public at large who
is concerned in the manner in which the Government i.e. Public Prosecutor discharges his
duties. If he fails to perform his duties properly then the offenders who deserve punishment
would be free from the clutches of law. He is not only accountable to the State but also to the
public. He is a responsible law officer of the Court. It is his duty to marshal correct facts and
law before Court so that the Court may dispense with justice. If such appointment would be
the product of the spoils system the rule of law shall be, the ultimate victim, the dispensation
of justice shall or in jeopardy and the tears from the eyes of the victim and his or her kith and
kin

and

other

INSTITUTIONAL

relations
INTEGRITY

can
OF

never
THE

OFFICE

be
OF

wiped
THE

out.
PUBLIC

PROSECUTOR:
40. The institutional integrity of the institution of the Public Prosecutor should be kept in
mind while recommending the name of the candidate. Appointment to the post of a Public
Prosecutor must satisfy not only the eligibility criteria of the candidate, but also the
decisionmaking process of the recommendation. The decision to recommend must be an

informed decision keeping in mind the fact that the Public Prosecutor, as an institution, has to
perform an important function in criminal justice administration. If a statutory authority, like
the District Collector or the Sessions Judge, eschew relevant material having nexus to the
object and purpose of Section 24, Cr.P.C, or take into account irrelevant circumstances, then
their decision/recommendation would stand vitiated on the ground of arbitrariness. The
authorities must take into consideration the question of institutional competence into account.
If the selection would adversely affect the institutional competence and functioning, then it is
their duty not to appoint such a candidate. Institutional integrity should be the primary
consideration while submitting proposals for appointment to the post of a Public Prosecutor.
While exercising the powers conferred by the Section, the competent authority should
consider what is good for the institution, and not what is good for the candidate. When
institutional integrity is in question, the touchstone should be "public interest". Personal
integrity is relevant, and has a corelationship with institutional integrity. If a duty is cast
under the Section to recommend the name of the selected candidates, the integrity of that
decisionmaking process must ensure that the powers are exercised for the purposes, and in
the manner, envisaged by the said Section, otherwise such recommendation will have no
existence in the eye of the law.
(See P.N.S. Prakash v. Secretary to Govt of A.P., 2013 Cr.L.J. 2771).
41. I may quote with profit the decision of the Supreme Court in the case of Mundrika
Prasad Sinha v. State of Bihar [AIR 1979 SC 1871], more particularly, the observations
made in paras 15 and 16 as under:
15. Coming to the larger submission of counsel for the petitioner, we do recognize its
importance in our era of infiltration of politicking even in forbidden areas. A Government
pleader is more than an advocate for a litigant. He holds a public office. We recall with
approval the observations a Division Bench of the Madras High Court made in
Ramachandran v. Alagiriswami and regard the view there, expressed about a Government
Pleader's office, as broadly correct even in the Bihar setup. ".. . the duties of the Government
Pleader, Madras are duties of a public nature. Besides, as already explained the public are
genuinely concerned with the manner in which a Government Pleader discharges his duties
because, if he handles his cases badly, they have ultimately to foot the bill. The Rajasthan
case does not take into account all the aspects of the matter.

(36) The learned Advocate General argued that the Government Pleader, Madras is only an
agent of the Government, that his duties are only to the Government who are his principals
and that he owes no duty to the public at all and that for that reason he would not be the
holder of a Public Office.
(37) It is difficult to accept this view. The contention of the learned Advocate General may
have been less untenable if the duties of the Government Pleader were merely to conduct in
courts cases to which Government are a party. But, as the rules stand, he has a number of
other duties to discharge. Besides, even if his only duty is the conduct of cases in which
Government have been impleaded, still as explained more than once before the public are
interested in the manner in which he discharges hid duties.. . . . . . . . .
(90) I am clearly of opinion that having regard to the fact that the Government Pleader of
this court is employed by the State on remuneration paid from the public exchequer and
having regard to the various functions and duties to be performed by him in the due exercise
of that office, most of which are an independent and responsible character, the office must be
held to be a public office within the scope of a quo warranto proceeding. I consider that the
most useful test to be applied to determine the question is that laid down by Erle. J. in (1851)
17 QB 149. The three criteria are, source of the office, the tenure and the duties. I have
applied that test and I am of opinion that the conclusion that the office is a public office is
irresistible." 16. In this view, ordering about a Government Pleader is obnoxious but nothing
savouring of such conduct is made out although we must enter a caveat that Governments
under our Constitution shall not play with Laws Offices on political or other impertinent
considerations as it may effect the legality of the action and subvert the rule of law itself.
After all, a Government Pleader and, in a sense, every member of the legal profession, has a
higher dedication to the people.
42. MEANING OF THE EXPRESSION THE DISTRICT MAGISTRATE SHALL, IN
CONSULTATION

WITH

THE

SESSIONS

JUDGE:

42.1 As subsection (4) and subsection (5) of Section 24, Cr.P.C. speak about preparation of a
panel, out of which the appointment to the post of Prosecutor or Additional Public Prosecutor
is being made, the Sessions Judge and the District Magistrate are required to consult each
other; discuss the names of persons fit to be included in the panel; and include only such
names in the panel. The expression "panel of names of persons" does not mean that some
names are to be suggested by the Sessions Judge, and some comments are to be made in

respect of those names by the District Magistrate, without proper consultation and discussion
over such names. The statutory mandate ought to be complied with both in letter and spirit by
the District Magistrate and the Sessions Judge. The quality integrity work and overall
reputation of the Counsel has to be judged and assessed by the District and Sessions Judge.
The District Magistrate is required to consider the suitability of such persons from the
administrative point of view. (Harpal Singh Chauhan (AIR 1993 SC 2436)). There must be
effective meaningful and real consultation between the Sessions Judge and the District
Magistrate and only then a panel of names should be prepared. (Mrs. Neelima Sadanand
Vartak (AIR 2005 Bom 431)). Consultation with the Sessions Judge, under Section 24(4), is
on the "fitness" of a person to be appointed as a Public Prosecutor. The Sessions Judge is
required not to just pick and choose those who satisfy the eligibility criteria of seven years
practice as an advocate, but to ensure that the names of only those eligible advocates, who are
"fit" to be appointed as the Public Prosecutors/Additional Public Prosecutors, are included in
the panel to be prepared after completion of the consultative process between him and the
District Magistrate. The New Oxford dictionary of English (Indian Edition) defines "panel" to
mean a small group of people brought together for a purpose. The exercise of preparing a
"panel" involves shortlisting the most meritorious candidates. (Mrs. Neelima Sadanand
Vartak). The Sessions Judge is obliged to identify the most meritorious candidates, from
among those eligible, to be included in the panel for appointment to the post of Public
Prosecutors/Additional Public Prosecutors. The factors which the District Judge may take
into consideration, before satisfying himself that an eligible advocate is "fit" to be empanelled
for being considered for appointment as a Public Prosecutor/ Additional Public Prosecutor,
would include the performance of the advocate at the bar, the volume and quality of his
practice, the manner in which he conducts himself in Court, his integrity, a blemishless
background, fairness of approach to cases presented by him before the Court, adverse
material, if any, the effect of strictures or remarks passed by High Court or Supreme Court in
any judgment or order etc. 42.2 The aforesaid factors are merely illustrative and the Sessions
Judge can also take into consideration any other factor relevant for determining the "fitness"
of an eligible advocate to be appointed as the Additional Public Prosecutor.[See: P.N.S.
Prakash (supra)].
43. In this regard, it should be kept in mind that the final decision is always taken by the
Government being the appointing authority and not by the District Magistrate who has only
to make his recommendations after holding effective consultation with the Sessions Judge.

The use of the word shall, therefore, in the context of consultation between the District
Magistrate and the Sessions Judge has a far reaching consequence, inasmuch as, the State
Government intends to select the best person for being appointed on the post of Government
Pleader and Public Prosecutor and who can be in a more better position than the District &
Sessions Judge to give his opinion as regards the character, integrity, competence, or the like
of a lawyer being suitable to assist the Court in performance of the duties of the Government
Pleader as well as Public Prosecutor. The District Magistrate obviously would not have the
requisite machinery or the expertise to adjudge the quality of an advocate for dawning the
responsibility of the Public Prosecutor and that is the reason why the Rule intends the
recommendations to be sent to the State Government after consultation by the District
Magistrate with the Sessions Judge, the Head of the Judicial fraternity of the district.
44. The Supreme Court in the case of S.P. Gupta v. President of India [AIR 1982 SC 149]
has very succinctly explained the true meaning of the term consultation.
30.. .. 2.. .."The word `consult' implies a conference of two or more persons or an impact of
two or more minds in respect of a topic in order to enable them to evolve a correct or at least
a satisfactory solution" and added:
39.. .."In order that the two minds may be able to confer and produce a mutual impact, it is
essential that each must have for its consideration full and identical facts, which can at once
constitute both the source and foundation of the final decision".
Krishna Iyer, J. speaking on behalf of himself and Fazal Ali, J. also pointed out that :
103.. .."all the materials in the possession of one who consults must be unreservedly placed
before the consultee and further 103.. .. a reasonable opportunity for getting information,
taking other steps and getting prepared for tendering effective and meaningful advice must be
given to him. and 103.. ..the consultant in turn must take the matter seriously since the
subject is of grave importance. The learned Judge proceeded to add:
103. Therefore, it follows that the President must communicate to the Chief Justice all the
material he has and the course he proposes. The Chief Justice, in turn, must collect necessary
information through responsible channels or directly, acquaint himself with the requisite
data, deliberate on the information he possesses and proceed in the interests of the
administration of justice to give the President such counsel of action as he thinks will further
the public interest, especially the cause of the justice system.

45. A Division Bench of the Madhya Pradesh High Court in the case of Badri Vishal Gupta
v. State of U.P. and others [2007 Cri. L.J. 4421] has also explained the terms consultation
used in Section 24 of the Cr.P.C. Dipak Mishra, J. (as His Lordship then was) observed as
under:
15. As has been held in the case of Johri Mal (AIR 2004 SC 3800) (supra) which we have
reproduced above it has been reiterated that recommendation of the names has to be done in
consultation with the District Judge is based on certain principles as the District Judge is
supposed to know the merit, competence and capability of the concerned lawyers and the
District Magistrate is supposed to know their conduct and also their integrity. 16. In
Mundrika Prasad Singh (AIR 1979 SC 1871) (supra) the Apex Court has held that one
effective method of achieving the object is to act on the advice of the District Judge regarding
the choice of Government Pleaders. The District Judge is under an obligation to prepare a
panel after due consultation with the Sessions Judge. There has to be an effective
consultation. The term "consultation" has been defined in Corpus Juris Secundum Vol. 16A,
1956 Edition p. 1242 to mean to discuss something together, or to deliberate. In the term
"consultation" it is inherent there has to be effective consultation which involves exchange of
mutual view point.
17. The term "consultation" used in Section 24 of the Cr. P. C. cannot be equated with
consultation of high constitutional functionaries but indubitably signification of the said term
cannot be marginalised. The term "consultation" has to be understood in the context in which
it is used. The consultation with the District Judge, as has been held by the Apex Court, is
based on certain acceptable norms. The District Judge has to form an opinion with regard to
merits, competence and capability of the concerned lawyers. It must be reflected in the
consultative process...
45.1 In Johri Mal (AIR 2004 SC 3800) (supra) a threeJudge Bench of the Apex Court while
dealing with the issue of consultation expressed the view as under :
" 86. The age old tradition on the part of the States in appointing the District Government
counsel on the basis of the recommendations of the District Collector in consultation with the
District Judge is based on certain principles. Whereas the District Judge is supposed to know
the merit, competence and capability of the concerned lawyers for discharging their duties,
the District Magistrate is supposed to know their conduct outside the Court visavis the
victims of offences, public officers, witnesses etc. The District Magistrate is also supposed to
know about the conduct of the Government counsel as also their integrity.

88. The State should bear in mind the dicta of this Court in Mundrika Prasad Singh (AIR
1979 SC 1871) (supra), as regard the necessity to consult the District Judge. While making
appointments of District Government Counsel, therefore, the States should give primacy to
the opinion of the District Judge. Such a course of action would demonstrate fairness and
reasonableness of action and, furthermore, to a large extent the action of the State would not
be dubbed as politically motivated or otherwise arbitrary. As notice hereinabove, there also
does not exist any rationale behind deletion of the provision relating to consultation with the
High Court in the matter of appointment of the Public Prosecutors in the High Court. The
said provision being a salutary one it is expected that the State of U. P. either would suitably
amend the same or despite deletion shall consult the High Court with a view to ensure
fairness in action." (Emphasis supplied)
46. The same view has also been followed by the Apex Court in the case of State of J & K
vs. A.R. Zakki, 1992 AIR(SC) 1546, wherein, it was held as follows:
Though consultation does not mean "concurrence", it postulates an effective consultation
which involves exchange of mutual viewpoints of each other and examination of the relative
merits of the other point of view. Consultation or deliberation is not complete or effective
before the parties thereto make their respective points of view known to the other or others
and discuss and examine the relative merits of their views.
46.1 Yet again the Apex Court in the case of Indian Administrative Service (S.C.S.) Assn.
vs. Union of India, 1993 Supp 1 SCC 730 had held as follows:
Consultation is a process which requires meeting of minds between the parties involved in the
process of consultation on the material facts and points involved to evolve a correct or at
least satisfactory solution. There should be meeting of minds between the proposer and the
persons to be consulted on the subject of consultation. There must be definite facts which
constitute the foundation and source for final decision. The object of the consultation is to
render consultation meaningful to serve the intended purpose. Prior consultation in that
behalf is mandatory.
46.2 In the case of Supreme Court Advocatesonrecord Assn. vs. Union of India, 1994
AIR(SC) 268
In common parlance, whenever the expression "consultation" is used in, connection with
lawyers, or with the physician or with the engineer etc. it would mean as seeking opinion or
advice or aid or information or instruction.

WHETHER THE THREE WRIT APPLICATIONS ARE HIT BY THE DOCTRINE


OF RES JUDICATA :
47. It appears that in the past, one writ application in the public interest was filed in this Court
which was ordered to be summarily dismissed. The Writ Petition (PIL) No.125 of 2015 was
summarily dismissed on 02.07.2015 in the following terms:
We have heard Mr. Jairaj Chauhan, learned counsel for the petitioner. This petition in the
nature of Public Interest Litigation has been filed by the petitioner who is a retired pensioner.
He prays that appointment of respondent no.2 as District Government Pleader and Public
Prosecutor of Vadodara District be set aside in view of the observations made by the Apex
Court in the case of Zahira Habibullah Sheikh vs. State of Gujarat, reported in 2004 [0]
GLHELSC 34895. The said judgment has been annexed to the petition as Annexure:B. The
petitioner appears to be a busybody and this petition cannot be maintainable as Public
Interest Petition for settling personal vendetta. Accordingly, this petition in the nature of
Public Interest Litigation is summarily dismissed.
48. In Sheodan Singh v. Daryao Kunwar, (1966) 4 SCR 300, the Supreme Court laid down
the ingredients of Section 11 of the Code of Civil Procedure, the principles of which could be
extended even to the writ proceedings, stating as under:
9. A plan reading of Section 11 shows that to constitute a matter res judicata, the following
conditions must be satisfied, namely ( i) The matter directly and substantially in issue in the
subsequent suit or issue must be the same matter which was directly and substantially in
issue in the former suit; (ii) The former suit must have been a suit between the same parties
or between parties under whom they or any of them claim; (iii) The parties must have
litigated under the same title in the former suit; (iv) The Court which decided the former suit
must be a Court competent to try the subsequent suit or the suit in which such issue is
subsequently raised; and (v) The matter directly and substantially in issue in the subsequent
suit must have been heard and finally decided by the Court in the first suit. Further
Explanation 1 shows that it is not the date on which the suit is filed that matters but the date
on which the suit is decided, so that even if a suit was filed later, it will be a former suit if it
has been decided earlier. In order therefore that the decision in the earlier two appears
dismissed by the High Court operates as res judicata it will have to be seen whether all the
five conditions mentioned above have been satisfied.

49. In my opinion, applying the aforesaid principle, the doctrine of res judicata, will have no
application in the present case. It appears that the writ application was dismissed only on the
ground

of

lack

of

bona

fide

on

the

part

of

the

petitioner.

PICTURE THAT EMERGES FROM THE MATERIALS AVAILABLE ON


RECORD OF THE CASE:
50. On 12.02.2000, a panel consisting of the following four names was prepared for the
purpose of appointment of the District Government Pleader and Public Prosecutor: (i) R.N.
Pandya (respondent No.3) (ii) A.S. Waghela (iii) B.G. Binniwale (iv) J.N. Vyas 50.1 The
Secretary and Remembrancer of Legal Affairs put up a detailed note stating that none of the
above referred four persons (including the respondent No.3) was fit or suitable to be
appointed as the Public Prosecutor, and further that the concerned Law Minister had also
agreed with the opinon of the Secretary and RLA, and had accordinlgy directed that a new
panel be prepared. 50.2 On 27.3.2000, a second panel of names was prepared and sent to the
State Government. This panel list consisted of three persons which included two persons
(A.S. Waghela and B.G. Binniwal, who had already been rejected in the first round). The
Secretary and RLA again put up a detailed note rejecting the first two names on the ground
that they had already been rejected earlier and also rejected the third name of one Shri C.R.
Patel. The District Magistrate was again requested to prepare a fresh panel of names. It may
not be out of place to state at this stage that on both the occasions, the Government went into
the issue of suitability and fitness of the persons named in the panel, and thereafter, rejected
them on the ground of suitability and fitness. 50.3 On 12.10.2000, a third panel of names was
sent to the State Government. It consisted of the following three names: (i) Raghuvir N.
Pandya (respondent No.3) (ii) Dipak J. Vyas (iii) Babulal Shah 50.4 The State Government
noted that Mr. Pandyas name has already been rejected. Notings were made by the Secretary
as regards the manner in which the panel of names was prepared and also the noting that an
attempt was being made to favour certain persons. 50.5 In December, 2001, the Government
noted that a complaint was made by an advocate, namely, Shri J.I. Patel, against Shri Pandya
(the then Incharge Government Pleader regarding corruption). 50.6 On 26.02.2002, the
respondent No.3 herein was appointed as the District Government Pleader and Public
Prosecutor for Vadodara for a period of one year. 50.7 In 2003, the appointment of the
respondent No.3 was extended for a period of two more years. 50.8 Thereafter, the Best
Bakery trial was conducted. 50.9 On 04.05.2005, the State Government extended the tenure

of the respondent No.3 for a further period of three years which came to an end on
03.03.2008. 50.10 On 29.01.2009, a panel consisting of the following five names was
prepared for the purpose of appointment of the District Government Pleader and Public
Prosecutor: (i) Narayan Sukhchand Shah (ii) Dipak Jagdish Vyas (iii) Bhumika Bhupendra
Trivedi (iv) Dwarkesh Ramanlal Haribhakti (v) Raghuvir Nandkrishna Pandya (respondent
No.3) 50.11 On 03.02.2009, the Government made a noting that there were allegations
against Shri Haribhakti Dwarkesh Ramanlal. The Government also made a noting that there
were allegations against Nos. (ii), (iv) and (v), which included the respondent No.3 herein.
The documents on record issued under the Right to Information Act would indicate that there
are notings regarding adverse remarks against Mr. Pandya (respondent No.3), Mr. Vyas and
Mr. Haribhakti. 50.12 Finally, one Shri Narayan Shah was appointed as the District
Government Pleader and Public Prosecutor. 50.13 The term of Mr. Narayan Shah came to an
end in the year 2013. 50.14 On 29.07.2013, once again, a panel of names was prepared for
the appointment as the District Government Pleader and Public Prosecutor. It appears that at
the relevant point of time, one Shri Mamtora was the District Judge. 50.15 On 19.02.2014,
the Chief Secretary of the Legal Department called for several other details from the District
Magistrate, Vadodara, including his opinion as regards the persons named in the panel. By
that time the District Magistrate and the District Judge who had conducted the interviews
were already transferred. 50.16 On 01.04.2015, the then District Magistrate, by his letter
addressed to the Chief Secretary, Legal Department, furnished certain details titled
Abhipray (opinion). The only thing that was stated in the column of opinion was with
regard to the age of the respondent No.3, year from which he had started practice and his
Income Tax returns. No opinion was expresed as regards the fitness / suitability. 50.17 The
learned District Judge, who has signed the table which is on record is as one Ms. Pinto, who
had neither taken the interview nor had participated in the consultative process. The District
Magistrate, who has signed the table, had also not taken part in the consultative process and
had not taken the interview. 50.18 On 07.05.2015, the Legal Department appointed the
respondent No.3 as the District Government Pleader and Public Prosecutor for a period upto
31.12.2017.
51. Thus, from the above, it appears that in the year 2009, the respondent No.3 herein was
considered for the post and was not found fit. It is possible, though it is not made clear that on
account of the scathing remarks passed by the Supreme Court, the State Government might

not have found the respondent No.3 fit and suitable to be appointed to the post or for any
other good reason.
52. In the present case, I have noticed is that there was no consultation in its true sense. It
appears from the materials on record that few lawyers were called for the interview which
was conducted by the then District Magistrate and the then Principal Sessions Judge. What
has been shown to me is a marksheet containing six columns under the different heads and
the marks allotted to the persons who had appeared in the interview under the different heads.
It is conceded before me by the learned Advocate General appearing for the State that except
this, there is no other material to show that there was any consultation as such. I repeatedly
inquired whether there is any opinion in writing of the District Magistrate as well as the
Principal Sessions Judge as regards the fitness and suitability and other relevant aspects of
each of the candidates. The answer was in the negative. I also inquired whether there was any
opinion as regards the fitness and suitability of the District Magistrate as well as the Principal
Sessions Judge in writing so far as the respondent No.3 is concerned. The reply was in the
negative. What was taken into consideration and in what manner is also not shown to this
Court. As observed above, what has been shown to me is the marksheet and since the
respondent No.3 appeared to have secured the highest marks, the State Government i.e. the
concerned Minister put an endorsement in the original file shown to me that the respondent
No.3 be appointed.
53. I inquired with Mr. Mitesh Amin, the learned Public Prosecutor of this Court whether any
independent inquiry or exercise was undertaken by the State Government before the
respondent No.3 was selected. Mr. Amin, the learned Public Prosecutor made himself very
clear that having regard to the fact that the respondent No.3 had secured the highest marks,
the Law Minister thought fit to appoint him. Besides this, there was no other independent
inquiry

at

the

end

of

the

State

Government.

FITNESS OF THE EMPANELLED ADVOCATES MUST ALSO BE EXAMINED


BY THE GOVERNMENT BEFORE APPOINTING ONE OF THEM AS THE PUBLIC
PROSECUTOR:
54. It goes without saying that the fitness of the empanelled advocates must also be
examined by the Government before appointing one of them as the Public Prosecutor. The
appointment to the post of the Public Prosecutor cannot be on the sweet will of a Minister.

There are many relevant consideration which should weigh with the Minister before
finalizing the appointment. I wonder, whether the State Government had considered the effect
and implications of the remarks passed by the Supreme Court.
55. The panel is prepared of persons who are all fit to be appointed as the Public Prosecutors.
If all are fit to be appointed and if the Government has to thereafter appoint one of them, such
person cannot be just picked up at random or on some extraneous consideration. This is the
reason why I am laying stress on the fact that the State Government being the appointing
authority is expected to undertake its own exercise and choose the fittest person from the
panel of persons prepared by the District Magistrate in consultation with the Sessions Judge.
The State should not act as a mere rubber stamp, otherwise, the very power of the
appointment conferred on it would be frustrated. The State is obliged to act fairly and take an
appropriate decision as regards the appointment of a particular person from the panel in
public interest. The State should not do anything which would shake the confidence of the
people at large. In the past also, as I have indicated, the State did undertake some exercise to
determine the fitness and suitability of the candidates, but this time, it seems that nothing has
been done, and straight way, the Minister has put a note to appoint the respondent No.3 as the
Public Prosecutor. What was so special about the respondent No.3, except the marks and why
the other candidates were not found fit has not been explained. Of course, so far as the
suitability part is concerned, it is the domain of the Government, but the suitability in the
present case, is dependent on the fitness of a particular person and fitness is the most
important eligibility criteria according to the statutory provisions.
56. A lot was argued by both the sides as regards the distinction between the eligibility and
suitability. In my view, the eligibility factor provides answer to the question can the person
perform? The suitability factor provides answer to the question will the person perform?
The Supreme Court in the case of Mahesh Chandra Gupta (supra) explained that
eligibility is an objective factor. While considering the elevation of the respondent No.3 as
an Additional Judge of the Allahabad High Court, the Supreme Court observed that when
eligibility is put in question, it could fall within the scope of judicial review. However, the
question as to who should be elevated to the Bench of the High Court, which essentially
involves the aspect of suitability, stands excluded from the purview of a judicial review.
The Supreme Court also observed that once there is a consultation, the content of that
consultation is beyond the scope of judicial review, though lack of effective consultation like
in the present case could fall within the scope of judicial review.

57. In the aforesaid context, I may refer to and rely upon the decision of the Supreme Court in
the case of M. Manohar Reddy and another v. Union of India and others [AIR 2013 SC
795], wherein the Supreme Court considered its own decision in the case of Mahesh Chandra
Gupta (supra). I may quote the observations made by the Supreme Court in paras 13, 14 and
15 as under:
13. The concepts of "eligibility" and "suitability" were later examined by this Court in the
decision in Mahesh Chandra Gupta (to which one of us Aftab Alam, J. was also a Member).
In Mahesh Chandra Gupta, challenge was made to the appointment of a Judge of the
Allahabad High Court after the incumbent had assumed his office. In the writ petition, as it
was originally filed, the appointment was questioned only on the ground that the incumbent
did not possess the basic eligibility for being appointed as a Judge of the High Court. Later
on, the appointment was also challenged on grounds of suitability and want of effective
consultation process by taking additional pleas in supplementary affidavits. Kapadia, J. (as
His Lordship then was), speaking for the Court brought out the distinction between
"eligibility" and "suitability" and pointed out that eligibility was based on objective facts and
it was, therefore, liable to judicial review. But, suitability pertained to the realm of opinion
and was, therefore, not amenable to any judicial review. The Court also examined the class of
cases relating to appointment of High Court Judges that might fall under judicial scrutiny
and concluded that judicial review may be called for on two grounds namely, (i) "lack of
eligibility" and (ii) "lack of effective consultation". In paragraphs 39, 43 and 44 of the
judgment the Court said:
"39. At this stage, we may state that, there is a basic difference between "eligibility" and
"suitability". The process of judging the fitness of a person to be appointed as a High Court
Judge falls in the realm of suitability. Similarly, the process of consultation falls in the realm
of suitability. On the other hand, eligibility at the threshold stage comes under Article 217(2)
(b). This dichotomy between suitability and eligibility finds place in Article 217(1) in
juxtaposition to Article 217(2). The word "consultation" finds place in Article 217(1) whereas
the word "qualify" finds place in Article 217(2).
43. One more aspect needs to be highlighted. "Eligibility" is an objective factor. Who could
be elevated is specifically answered by Article 217(2). When "eligibility" is put in question, it
could fall within the scope of judicial review. However, the question as to who should be
elevated, which essentially involves the aspect of "suitability", stands excluded from the
purview of judicial review.

44. At this stage, we may highlight the fact that there is a vital difference between judicial
review and merit review. Consultation, as stated above, forms part of the procedure to test the
fitness of a person to be appointed a High Court Judge under Article 217(1). Once there is
consultation, the content of that consultation is beyond the scope of judicial review,though
lack of effective consultation could fall within the scope of judicial review. This is the basic
ratio of the judgment of the Constitutional Bench of this Court in Supreme Court
AdvocatesonRecord Assn. (AIR 1994 SC 268: 1993 AIR SCW 4101) and Special Reference
No. 1 of 1998 : (AIR 1999 SC 1 : 1998 AIR SCW 3400).
(Emphasis added)
14. In paragraphs 71 and 74 of the judgment again the Court observed as under:
Justiciability of appointments under Article 217(1)
71. In the present case, we are concerned with the mechanism for giving effect to the
constitutional justification for judicial review. As stated above, "eligibility" is a matter of fact
whereas "suitability" is a matter of opinion. In cases involving lack of "eligibility" writ of quo
warranto would certainly lie. One reason being that "eligibility" is not a matter of
subjectivity. However, "suitability" or "fitness" of a person to be appointed a High Court
Judge: his character, his integrity, his competence and the like are matters of opinion.
74. It is important to note that each constitutional functionary involved in the participatory
consultative process is given the task of discharging a participatory constitutional function;
there is no question of hierarchy between these constitutional functionaries. Ultimately, the
object of reading such participatory consultative process into the constitutional scheme is to
limit judicial review restricting it to specified areas by introducing a judicial process in
making of appointment(s) to the higher judiciary. These are the norms, apart from modalities,
laid down in Supreme Court AdvocatesonRecord Assn. and also in the judgment in Special
Reference No. 1 of 1998,Re. Consequently, judicial review lies only in two cases, namely,
"lack of eligibility" and "lack of effective consultation". It will not lie on the content of
consultation.
(Emphasis added)
15. In view of the decision in Mahesh Chandra Gupta, the question arises whether or not the
case in hand falls in any of the two categories that are open to judicial review. Admittedly,
the eligibility of respondent No.3 is not an issue. Then, can the case be said to raise the issue
of "lack of effective consultation".

58. In the present case, prima facie, it appears that the State Government overlooked the
remarks passed by the Supreme Court, also the notings made in the Government record time
to time against the respondent No.3 including the detailed notes to the effect that the
respondent No.3 was not fit to be appointed. At this stage, I may usefully refer to and rely
upon the decision of the Supreme Court in the case of N. Kannadasan (supra), more
particularly, the observations made in paras 107, 108, 123 and 124:
107. We are not oblivious of the fact that no court howsoever high would have any power of
judicial review in relation thereto. Power of judicial review, although is very restricted,
cannot be denied to be exercised when relevant fact is not considered. It is now a wellsettled
principle of administrative law that the doctrine of error of law apparent on the face of the
record inter alia would take within its umbrage a case where statutory authority in exercising
its discretionary jurisdiction did not take into consideration a relevant fact or based its
decision on wholly irrelevant factors not germane for passing the order.
108. What is not the subjectmatter of judicial review is the opinion of the Chief Justice
touching upon the merit of the decision but the decisionmaking process is subject to judicial
review. It stands conceded that the proviso appended to Section 16(1)(a) of the Act is
imperative in nature. An appointment made without consulting the Chief Justice being wholly
without jurisdiction would be void ab initio. If the State is bound to consult the Chief Justice,
we reiterate, such consultation must be an effective and informed one. Both the State
Government as also the Chief Justice before forming opinion must have access to all relevant
informations. Application of mind on the part of consultant and consultee on such relevant
information was, in our considered opinion, absolutely imperative.
123. Administrative law moreover has much developed since then. The approach of the
Privy Council decision in Hubli Electricity Co. Ltd. Case does not commend to us. Where an
opinion was not formed on relevant facts or within the restraints of the statute as an
alternative safeguard to the rules of natural justice where the function is administrative,
evidently judicial review shall lie.
(See Barium Chemicals Ltd. v. Company Law Board)
124. In fact Hubli Electricity Co. Ltd. has been considered by this Court in Narayanan
Sankaran Mooss v. State of Kerala, stating: (SCC pp. 7677, para 20)
20. The power to revoke the licence is a drastic power. The revocation of licence results in
severe abridgement of the right to carry on business. Having in mind the requirements of

Article 19(1)(g), Parliament has, it seems to us, prescribed certain conditions to prevent the
abuse of power and to ensure just exercise of power. Clauses (a) to (d) of Section 4 prescribe
some of the conditions precedent for the exercise of power. The order of revocation, in breach
of any one of those conditions, will undoubtedly be void. The clause if in its opinion the
public interest so requires is also a condition precedent. On a successful showing that the
order of revocation has been made without the Government applying its mind to the aspect of
public interest or without forming an honest opinion on that aspect, it will, we have no doubt,
be void. The phrase after consulting the State Electricity Board is sandwiched between the
clause if in its opinion the public interest so requires and clauses (a) to (d). In this context it
appears to us that consultation with the Board is also a condition precedent for making the
order of revocation. Accordingly the breach of this condition precedent should also entail the
same consequence as the breach of the other conditions referred to earlier. It may be
observed that the phrase after consulting the State Electricity Board did not find place in
Section 4 as it stood originally. It was introduced in Section 4 in 1959 by an amendment. It
seems to us that it was introduced in Section 4 with the object of providing an additional
safeguard to the licensee.
59. I may also usefully refer to and rely upon the decision of the Supreme Court in the case of
Salil Sabhlok (supra), more particularly, the observations made in paras 111 to 116:
111. Learned counsel supporting the appointment of Mr. Dhanda submitted that no
procedure is prescribed for the selection of the Chairperson of the Public Service
Commission. Therefore, no fault can be found in the procedure adopted by the State
Government. It was submitted, relying on Mohinder Singh Gill v. Chief Election
Commissioner, (1978) 1 SCC 405 that there is an implied power to adopt any appropriate
procedure for making the selection and the State Government and the Governor cannot be
hamstrung in this regard.
112. It is true that no parameters or guidelines have been laid down in Article 316 of the
Constitution for selecting the Chairperson of the Public Service Commission and no law has
been enacted on the subject with reference to Entry 41 of List II of the 7th Schedule of the
Constitution. It is equally true that the State Government and the Governor have a wide
discretion in the procedure to be followed. But, it is also true that Mohinder Singh Gill refers
to Lord Camden as having said that wide discretion is fraught with tyrannical potential even
in high personages. Therefore, the jurisprudence of prudence demands a fairly high degree of

circumspection in the selection and appointment to a constitutional position having


important and significant ramifications.
113. Two factors that need to be jointly taken into account for the exercise of the power of
judicial review are: the deliberative process and consideration of the institutional
requirements.
114. As far as the deliberative process is concerned (or lack of effective consultation, as
described in Mahesh Chandra Gupta) it is quite apparent that the entire process of selection
and appointment of Mr. Dhanda took place in about a day. There is nothing to show the need
for a tearing hurry, though there was some urgency, in filling up the post following the
demise of the then Chairperson of the Punjab Public Service Commission in the first week of
May 2011. But, it is important to ask, since the post was lying vacant for a couple of months,
was the urgency such that the appointment was required to be made without considering
anybody other than Mr. Dhanda. There is nothing to show that any consideration whatsoever
was given to appointing a person with adequate administrative experience who could achieve
the constitutional purpose for which the Public Service Commission was created. There is
nothing to show that any background check was carried out to ascertain whether Mr. Dhanda
had come in for any adverse notice, either in a judicial proceeding or any police inquiry. It
must be remembered that the appointment of Mr. Dhanda was to a constitutional post and the
basics of deliberation before making the selection and appointment were imperative. In this
case, clearly, there was no deliberative process, and if any semblance of it did exist, it was
irredeemably flawed. The inbuilt constitutional checks had, unfortunately, broken down.
115. In Centre for PIL this Court struck down the appointment of the Central Vigilance
Commissioner while reaffirming the distinction between merit review pertaining to the
eligibility or suitability of a selected candidate and judicial review pertaining to the
recommendation making process. In that case, the selection of the Central Vigilance
Commissioner was made under Section 4(1) of the Central Vigilance Commission Act, 2003
(for short the Act) which reads as follows:
4. Appointment of Central Vigilance Commissioner and Vigilance Commissioners.(1) The
Central Vigilance Commissioner and the Vigilance Commissioners shall be appointed by the
President by warrant under his hand and seal:
Provided that every appointment under this subsection shall be made after obtaining the
recommendation of a Committee consisting of

(a) the Prime Minister Chairperson;


(b) the Minister of Home Affairs Member;
(c) the Leader of the Opposition in the House of the People Member.
Explanation.For the purposes of this subsection, the Leader of the Opposition in the
House of the People shall, when no such Leader has been so recognised, include the Leader
of the single largest group in opposition of the Government in the House of the People.
As can be seen, only the establishment of a High Powered Committee (HPC) for making a
recommendation is provided for the procedure to be followed by the HPC is not detailed in
the statute. This is not unusual since a statute cannot particularize every little procedure;
otherwise it would become unmanageable and maybe unworkable. Moreover, some situations
have to be dealt with in a common sense and pragmatic manner. Acknowledging this, this
Court looked at the appointment of the Central Vigilance Commissioner not as a merit review
of the integrity of the selected person, but as a judicial review of the recommendation making
process relating to the integrity of the institution. It was made clear that while the personal
integrity of the candidate cannot be discounted, institutional integrity is the primary
consideration to be kept in mind while recommending a candidate. It was observed that while
this Court cannot sit in appeal over the opinion of the HPC, it can certainly see whether
relevant material and vital aspects having nexus with the objects of the Act are taken into
account when a recommendation is made. This Court emphasized the overarching need to act
for the good of the institution and in the public interest. Reference in this context was made to
N. Kannadasan.
116. Keeping in mind the law laid down and the facts as they appear from the record, it does
appear that the constitutional, functional and institutional requirements of the Punjab Public
Service Commission were not kept in mind when Mr. Dhanda was recommended for
appointment as its Chairperson.
60. I may also usefully refer to and rely upon the decision of the Supreme Court in the case of
Centre for PIL (supra), more particularly, the observations made in paras 36, 37, 38, 42 to
49:
36. For the sake of brevity, we may refer to the Selection Committee as the HighPowered
Committee. The key word in the proviso is the word recommendation. While making the
recommendation, the HPC performs a statutory duty. The impugned recommendation dated
392010 is in exercise of the statutory power vested in the HPC under the proviso to Section

4(1). The post of the Central Vigilance Commissioner is a statutory post. The Commissioner
performs statutory functions as enumerated in Section 8. The word recommendation in the
proviso stands for an informed decision to be taken by the HPC on the basis of a
consideration of relevant material keeping in mind the purpose, object and policy of the 2003
Act. As stated, the object and purpose of the 2003 Act is to have an integrity institution like
the CVC which is in charge of vigilance administration and which constitutes an
anticorruption mechanism. In its functions, the CVC is similar to the Election Commission,
the Comptroller and Auditor General, the Parliamentary Committees, etc. Thus, while
making the recommendations, the service conditions of the candidate being a public servant
or civil servant in the past is not the sole criterion. The HPC must also take into
consideration the question of institutional competency into account. If the selection adversely
affects institutional competency and functioning then it shall be the duty of the HPC not to
recommend such a candidate. Thus, institutional integrity is the primary consideration which
the HPC is required to consider while making recommendation under Section 4 for
appointment of the Central Vigilance Commissioner.
37. In the present case, this vital aspect has not been taken into account by the HPC while
recommending the name of Shri P.J. Thomas for appointment as the Central Vigilance
Commissioner. We do not wish to discount personal integrity of the candidate. What we are
emphasising is that institutional integrity of an institution like the CVC has got to be kept in
mind while recommending the name of the candidate. Whether the incumbent would or would
not be able to function? Whether the working of the institution would suffer? If so, would it
not be the duty of the HPC not to recommend the person. In this connection the HPC has also
to keep in mind the object and the policy behind enactment of the 2003 Act.
38. Under Section 5(1) the Central Vigilance Commissioner shall hold the office for a term of
4 years. Under Section 5(3) the Central Vigilance Commissioner shall, before he enters upon
his office, make and subscribe before the President an oath or affirmation according to the
form set out in the Schedule to the Act. Under Section 6(1) the Central Vigilance
Commissioner shall be removed from his office only by the order of the President and that too
on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference
made to it by the President, has on inquiry reported that the Central Vigilance Commissioner
be removed.
42. We find no merit in the above submissions. Judicial review seeks to ensure that the
statutory duty of the HPC to recommend under the proviso to Section 4(1) is performed

keeping in mind the policy and purpose of the 2003 Act. We are not sitting in appeal over the
opinion of the HPC. What we have to see is whether relevant material and vital aspects
having nexus to the object of the 2003 Act were taken into account when the decision to
recommend took place on 392010.
43. Appointment to the post of the Central Vigilance Commissioner must satisfy not only the
eligibility criteria of the candidate but also the decisionmaking process of the
recommendation (see SCC para 88 of N. Kannadasan). The decision to recommend has got
to be an informed decision keeping in mind the fact that the CVC as an institution has to
perform an important function of vigilance administration. If a statutory body like the HPC,
for any reason whatsoever, fails to look into the relevant material having nexus to the object
and purpose of the 2003 Act or takes into account irrelevant circumstances then its decision
would stand vitiated on the ground of official arbitrariness (see State of A.P. v. Nalla Raja
Reddy). Under the proviso to Section 4(1), the HPC had to take into consideration what is
good for the institution and not what is good for the candidate (see SCC para 93 of N.
Kannadasan). When institutional integrity is in question, the touchstone should be public
interest which has got to be taken into consideration by the HPC and in such cases the HPC
may not insist upon proof (see SCC para 103 of N. Kannadasan).
44. We should not be understood to mean that personal integrity is not relevant. It certainly
has a corelationship with institutional integrity. The point to be noted is that in the present
case the entire emphasis has been placed by the CVC, the DoPT and the HPC only on the
biodata of the empanelled candidates. None of these authorities have looked at the matter
from the larger perspective of institutional integrity including institutional competence and
functioning of the CVC. Moreover, we are surprised to find that between 2000 and 2004 the
notings of the DoPT dated 2662000, 1812001, 2062003, 2422004, 18102004 and 2112004
have all observed that penalty proceedings may be initiated against Shri P.J. Thomas.
Whether the State should initiate such proceedings or the Centre should initiate such
proceedings is not relevant. What is relevant is that such notings were not considered in
juxtaposition with the clearance of the CVC granted on 6102008. Even in the brief submitted
to the HPC by the DoPT, there is no reference to the said notings between the years 2000 and
2004. Even in the CV of Shri P.J. Thomas, there is no reference to the earlier notings of the
DoPT recommending initiation of penalty proceedings against Shri P.J. Thomas. Therefore,
even on personal integrity, the HPC has not considered the relevant material. The learned
Attorney General, in his usual fairness, stated at the Bar that only the curriculum vitae of

each of the empanelled candidates stood annexed to the agenda for the meeting of the HPC.
The fact remains that the HPC, for whatsoever reason, has failed to consider the relevant
material keeping in mind the purpose and policy of the 2003 Act.
45. The system governance established by the Constitution is based on distribution of powers
and functions amongst the three organs of the State, one of them being the executive whose
duty is to enforce the laws made by Parliament and administer the country through various
statutory bodies like the CVC which is empowered to perform the function of vigilance
administration. Thus, we are concerned with the institution and its integrity including
institutional competence and functioning and not the desirability of the candidate alone who
is going to be the Central Vigilance Commissioner, though personal integrity is an important
quality. It is the independence and impartiality of the institution like the CVC which has to be
maintained and preserved in the larger interest of the rule of law (see Vineet Narain).
46. While making recommendations, the HPC performs a statutory duty. Its duty is to
recommend. While making recommendations, the criterion of the candidate being a public
servant or a civil servant in the past is not the sole consideration. The HPC has to look at the
record and take into consideration whether the candidate would or would not be able to
function as a Central Vigilance Commissioner. Whether the institutional competency would
be adversely affected by pending proceedings and if by that touchstone the candidate stands
disqualified then it shall be the duty of the HPC not to recommend such a candidate. In the
present case apart from the pending criminal proceedings, as stated above, between the
period 2000 and 2004 various notings of the DoPT recommended disciplinary proceedings
against Shri P.J. Thomas in respect of the Palmolein case. Those notings have not been
considered by the HPC. As stated above, the 2003 Act confers autonomy and independence to
the institution of the CVC. Autonomy has been conferred so that the Central Vigilance
Commissioner could act without fear or favour.
47. We may reiterate that the institution is more important than an individual. This is the test
laid down in SCC para 93 of N. Kannadasan case. In the present case, the HPC has failed to
take this test into consideration. The recommendation dated 392010 of the HPC is entirely
premised on the blanket clearance given by the CVC on 6102008 and on the fact of
Respondent 2 being appointed as the Chief Secretary of Kerala on 1892007, his appointment
as the Secretary of Parliamentary Affairs and his subsequent appointment as the Secretary,
Telecom. In the process, the HPC, for whatever reasons, has failed to take into consideration
the pendency of the Palmolein case before the Special Judge, Thiruvananthapuram being

case CC No. 6 of 2003; the sanction accorded by the Government of Kerala on 30111999
under Section 197 CrPC for prosecuting inter alia Shri P.J. Thomas for having committed the
alleged offence under Section 120B IPC read with Section 13(1)(d) of the Prevention of
Corruption Act; the judgment of the Supreme Court dated 2932000 in K. Karunakaran v.
State of Kerala in which this Court observed that: (SCC p. 767, para 8)
8. the registration of the FIR against [Shri Karunakaran] and others cannot be held to
be the result of mala fides or actuated by extraneous considerations. The menace of
corruption cannot be permitted to be hidden under the carpet of legal technicalities [and in
such cases] probes conducted are required to be determined on facts and in accordance with
law.(emphasis supplied) Further, even the judgment of the Kerala High Court in Criminal
Revision Petition No. 430 of 2001 has not been considered.
48. It may be noted that the clearance of the CVC dated 6102008 was not binding on the
HPC. However, the aforestated judgment of the Supreme Court dated 2932000 in K.
Karunakaran v. State of Kerala was certainly binding on the HPC and, in any event, required
due weightage to be given while making recommendation, particularly when the said
judgment had emphasised the importance of probity in high offices. This is what we have
repeatedly emphasised in our judgmentinstitution is more important than individual(s).
49. For the above reasons, it is declared that the recommendation made by the HPC on
392010 is non est in law.
61. I am of the firm view that the District Magistrate as well as the District Judge should
express their respective opinions as regards the fitness and suitability in writing. The opinion
in writing should indicate what was discussed, considered, etc. The written opinion should
also indicate whether any adverse material had come to their notice and was looked into and
discussed. I am saying so, because the District Judge owes a higher responsibility so far as
the opinion as regards the fitness and suitability is concerned. The District Magistrate would
be wholly dependent on the opinion of the District Judge, because it is the District Judge,
who would know best the person who is being considered for the post being a member of the
legal fraternity. In a given case, on a given day, the District Judge could also be made
answerable in a case like one in hand. Sometimes, it may happen that the District Judge, who
takes over on being transferred, may not be familiar with the Bar. Obviously, he would take
sometime before he gets to know the lawyers practicing at the Bar. When all of a sudden, he
is to give an opinion to the District Magistrate as a part of the consultative process, he might

find it difficult. In such circumstances, the District Judge is expected to inquire in his own
way by talking to the senior members of the Bar as regards the reputation of the person who
is being considered for the post. He should not express any opinion in the absence of any
information or material with him. Such an action would be nothing, but a mechanical exercise
on the part of the District Judge. It is true that there is an inherent danger in undertaking such
process because there could be two sets of opinions. One, probably, favouring a particular
candidate, and the other, something adverse to him, but it is for the District Judge in his own
way to ascertain the eligibility as well as the suitability of the lawyer who is being considered
for the post. Except merit, nothing else should weigh with the District and Sessions Judge. If
there is anything adverse against any person named in the panel, then the District and
Sessions Judge should be bold and honest enough to state in his written opinion about the
same so that the State Government can also look into the same and would even help the Court
at times when the appointments are challenged on the ground of lack of effective consultative
process.
62. I am not impressed by the submissions canvassed on behalf of the respondents that the
marksheet alone should be construed as an expression of opinion as regards the fitness and
suitability.
63. As discussed above, fitness and suitability are the words of wide import
encompassing several characteristics like, integrity, character, competence, honesty,
intelligence, reputation, etc. While certain aspects of fitness could be expressed by and
judged on the basis of the marks (for example, qualifications, experience), several other
aspects are incapable of being expressed by way of marks (for example, honesty, integrity,
character, etc). A marksheet by its very nature can never be construed as a final expression of
opinion on the fitness and suitability of a person, and more so, when the same relates to a
person who is being considered for the appointment as a Public Prosecutor.
64. Mr. Thakore, the learned senior advocate explained in his own way by giving a very apt
illustration:
Illustration: There are 5 candidates (A, B, C, D, E) whose names are put on the panel. There
are 5 categories under which marks are given: Knowledge of Law, Communication Skills,
Experience, Qualifications, Overall personality and conduct. The total marks in each
category are 20 and the total marks 100. E is superior to the others in Knowledge of law,
Communication Skills, Experience and Qualifications and in fact very good in those skills. E

also has an excellent personality. However, E is a person who has been convicted on
numerous charges of corruption done while he was earlier a Public Prosecutor. E is given 10
marks in Overall Conduct and Personality. The following marks are given:Name of
candidate Knowledge of Law Communic ation skills Experience Qualificati ons Overall
conduct and personality traits Total A 18 17 20 17 16 88 B 16 16 18 17 16 83 C 15 14 19 17
19 84 D 18 18 20 16 17 89 E 20 20 20 20 10 90 In the above illustration, E gets the
maximum marks (90) and going only on the basis of the marks, E would appear to be the
most suitable and if the government is to go only on the basis of who has the highest marks
(as the State Government orally submitted on 24.9.2015 that it did in the present case), the
government would appoint E as the Public Prosecutor oblivious of the fact that E, despite his
other good characteristics, is totally unfit to be appointed as Public Prosecutor considering
that he has been convicted of corruption. In a marking system, there is no way in which the
authorities preparing the panel list would be able to convey the fact that E was convicted and
there is no way in which the government would come to know that he was convicted.
Conviction on corruption charges is only an illustration of a matter which is not possible to
express by way of marks. There can be various other situations which are impossible to
express by way of marks but which make a candidate unfit and unsuitable for holding the
position of Public Prosecutor and Government Pleader. Few such situations are given
hereinbelow:
( ii) The candidate is suffering from a serious disease because of which he may not be able to
perform the duties expected out of him.
(iii) The person belongs to a political party and is actively involved in politics resulting in a
situation where his independence could be questioned.
(iv) The candidate has been found guilty in a departmental inquiry on several counts of
misconduct.
(v) The candidate is a very eminent criminal lawyer and is appearing in a large number of
major criminal cases for accused resulting in a situation where he will not be able to appear
as Public Prosecutor in the most important criminal matters in the district (considering that
he has already represented the accused in major criminal matters).
(vi) Adverse remarks have been made against a candidate in a judicial proceeding with
respect to the conduct of the said candidate while holding a public office (which incidentally
is the case here).

65. There could be various other situations which could be expressed only by words and not
by way of marks. I find a lot of merit in the submission of Mr. Thakore that the marksheet
alone can never be an opinion of suitability and fitness. Mr. Thakore has given one more
illustration:
Illustration: There are 5 candidates A to E. A & B are the best candidates. A is an LLM and
B is an LLB. The total marks scored by A between 4 categories other than Qualifications is
65. The total marks scored by B between 4 categories other than Qualifications is 77. The
authorities are very keen to appoint A and, therefore, they decide to give the Qualification
marking in such a way that A has a higher total. They give 16 marks to A for his LLM degree
(taking his total to 81 marks) but give only 3 marks to B for his LLB degree (taking his total
to 80 marks). If there had existed an objective method for the objective categories, there
would be no possibility of this sort of thing happening.
The above is the reason why I am laying more stress on the opinions in writing by the District
Magistrate and the Sessions Judge over and above the marksheet.
66. It was argued before me very vociferously on behalf of the respondents that the
respondent No.3 fulfills all the requisite eligibility criteria like qualifications, standing at the
Bar, Income Tax returns, etc. Once the eligibility criteria is fulfilled, the rest should be left to
the State Government i.e. the suitability of the person.
67. In the aforesaid context, I may quote the observations of the Supreme Court in the case of
N. Kannadasan (supra) made in para 66 as under: 66. Eligibility of a Judge of a High
Court should not be construed in a pedantic manner. It in the context of a large number of
decisions of this court including S.P. Gupta (supra) must also be held to include suitability of
a person concerned. For the aforementioned purpose, the principles of purposive
interpretation is required to be resorted to.
68. I may also quote the conclusion arrived at by the Supreme Court in the case of N.
Kannadasan (supra) as under:
The summary of our aforementioned discussions is as under: (i) Judicial review although
has a limited application but is not beyond the pale of the superior judiciary in a case of this
nature. (ii) The superior courts may not only issue a writ of quo warranto but also a writ in
the nature of quo warranto. It is also entitled to issue a writ of declaration which would
achieve the same purpose.

(iii) For the purpose of interpretation of Constitution in regard to the status of an Additional
Judge, the word "has been" would ordinarily mean a retired Judge and for the purpose of
examining the question of eligibility, not only his being an Additional judge but also a
qualification as to whether he could continue in the said post or he be appointed as an acting
or adhoc judge, his suitability may also be taken into consideration.
(iv) Section 16 of the Act must also be given a contextual meaning. In a case of this nature,
the court having regard to the wider public policy as also the basic feature of the
Constitution, viz., independence and impartiality of the judiciary, would adopt a rule of
purposive interpretation instead of literal interpretation.
(v) Due consultative process as adumbrated by this Court in various decisions in this case
having not been complied with, appointment of Shri Kannadasan was vitiated in law.
(vi) The Government of the State of Tamil Nadu neither could have asked the High Court to
send a panel of names of eligible candidates nor the Chief Justice of the High Court could
have sent a panel of names of three Judges for appointment to the post of Chairman, State
Commission.
69. I am also not impressed by the vociferous submission canvassed on behalf of the
respondents that the observations or rather the remarks of the Supreme Court in the decision
of Zahira Sheikh (supra) should be ignored. The reason, why the learned counsel appearing
for the respondents wants me to ignore, is the time factor. According to the learned counsel,
by now almost eleven years have passed and even otherwise not binding to any one. For the
present, I may accept the submission or rather I may say that I would not express any opinion
in that regard so far as the aspect of suitability is concerned. But at least, it was expected of
the District Magistrate, the District Judge and the State Government as well to consider the
effect of it in the public interest. The very fact that the same has not been considered at all,
would render the entire consultative process vitiated. I am also not impressed by the
submission canvassed on behalf of the respondents that the remarks were passed behind the
back of the respondent No.3, and that he had no opportunity to put forward his case. It is trite
to say that no man should be condemned unheard, but at the same time, if there is sufficient
materials before the Court, then relying upon such material, the Court can always observe
something, it deems fit in a given case. In any view of the matter, I did not like the approach
of the respondent No.3 in criticizing the remarks passed by the Supreme Court against him
when he had no courage in the past eleven years to go before the Supreme Court for

expunging of the remarks. I just fail to understand how could the respondent No.3 question
the wisdom of the Supreme Court in passing the remarks before the High Court including the
legality of such remarks.
70. I am also not impressed by the submission canvassed on behalf of the respondents that
even after such remarks were passed, the respondent No.3 had continued to function as the
Public Prosecutor for almost a period of four years and the Supreme Court had not directed
the State Government to discontinue the respondent No.3.
71. The Supreme Court in the case of Centre for PIL (supra) observed in para 64 as under:
64. Even in R.K. Jain's case, this Court observed vide para 73 that judicial review is
concerned with whether the incumbent possessed qualifications for the appointment and the
manner in which the appointment came to be made or whether procedure adopted was fair,
just and reasonable. We reiterate that Government is not accountable to the courts for the
choice made but Government is accountable to the courts in respect of the lawfulness/legality
of its decisions when impugned under the judicial review jurisdiction. We do not wish to
multiply the authorities on this point.
72. A lot has been argued on the motive or conduct of the writ applicants. I do not say for a
moment that the motive or conduct of the writ applicants are not relevant factor, but they
would be relevant only for denying them the costs even if their claims succeed, but it cannot
be a justification to refuse to examine the merits of the question raised therein, since that is
the matter of public concern and relates to good governance of the State [See : Kashinath G.
Jalmi (Dr.), 1993 (2) SCC 703].
73. A Division Bench of the Punjab High Court in the case of Bindra Ban vs. Sham Sunder
and others [AIR 1959 Punjab 83] observed in para 5, 6 and 7 as under:
5. The normal rule is that a petition under Art. 226 can only be made by a person who has
some right and whose right has been infringed. This rule, however, is not an inflexible or an
absolute one. There are some wellknown exceptions to the rule. For instance, an application
for a writ of habeas corpus may, in certain circumstances, be made by a near relation or
friend of the person under illegal detention. Similarly, it is not necessary in the case of an
application for quo warranto that the applicant should have suffered person injury or should
seek redress of a personal grievance. In proceedings for a writ of quo warranto, the
applicant does not seek to enforce any right of his as such, nor does he complain of
nonperformance pf any duty towards him. What is in question is the right of the

nonapplicant, to hold the office; the order that is passed is an order ousting him from that
office. Since the basic authority Res v. Speyer, (1916) 1 K.B. 595, the rule is well settled that
any private person may apply for a quo warranto in the matter of a public office, for every
person must necessarily have an interest in matters which concern the public Government. In
this case, the rule was obtained against the respondents that under the law they were not
entitled to be members of the Privy Council. An objection was raised that the remedy could
only be sought at the instance of the Attorney General by an information ex officio, and that
the rule should be discharged because it was issued at the instance of a private relator
against a member of the Privy Council, whose appointment is alleged, to be invalid. In the
opinion of his Lordship, the applicant appeared to have brought the matter before the Court
on purely public grounds without any private interest to serve and it was to the public
advantage that the law should be declared judicial authority.
6. In India also, the principle laid down in Rex v. Speyer is being consistently followed,
Legality of the appointment of an Advocate General was questioned by a private relator in a
writ petition under Art. 226 of the Constitution in G.D. Karkare v. T.L. Shevde, AIR 1952 Nag
330. One of the objections raised was that since no question of any fundamental right was
involved and the applicant himself had no complaint to make of any infringement of his
personal right, the applicant could not invoke the power of the Court under the said Article.
The rule laid down in 19161 KB 595 was followed and it was held that there was no reason
to refuse a citizen under the democratic republic constitution to move for a writ of quo
warranto for testing the validity of a high appointment of a public nature and of grave public
concern, as that of an Advocate General.
7. The offices of ViceChancellor, Registrar and Assistant Registrar of the University in
respect of which a writ was prayed for by a private individual, having no personal interest in
the matter were regarded as important statutory offices of public nature in Rajendarkumar
Chandanmal v. Government of State of M.P. AIR 1957 Madh Pra. 60. It was held that for the
issue of a writ of quo warranto no special kind of interest in the relator is needed, nor is it
necessary that any of his specific legal rights be infringed. It is enough for its issue that the
relator is a member of the public and acts bona fide and is not a mere pawn in the game
having been set up by others. If the Court is or the view that it is in the interest of the public
that the legal position with respect to the alleged usurpation of an important public office
should be judicially cleared, it can issue a writ of quo warranto at the instance of any
member of the public.

74. A Division Bench of the Nagpur High Court in the case of G.D. Karkare v. T. Shevde
[AIR 1952 Nagpur 330] observed in paras 18, 19 and 20 as under:
18. The words "for any other purpose" must receive their plain and natural meaning,
namely, for any other object which the Court considers appropriate and calls for the exercise
of the powers conferred upon it. Though the power of this Court under Art. 226 is ordinarily
exercisable for enforcement of right or performance of duty, it cannot necessarily be limited
to only such cases. Such a limitation cannot be reconciled with the power to issue a writ in
the nature of 'quo warranto' which power has been expressly conferred on the Court. In
proceedings for a writ of 'quo warranto' the applicant does not seek to enforce any right of
his as such, nor does he complain of, any nonperformance of duty towards him.What is in
question is the right of the nonapplicant to hold the office and an order that is passed is an
order ousting him from that office. Shri Karkare is only invoking what in the words of Lush,
J., in 'REX v. SPEYER', (1916) 1. KB 595 ('supra') is "the process by which persons who
claim to exercise public functions of an important and substantive character by whomsoever
appointed, can be called to account if they are not legally authorised to exercise them." (p.
627).
19. In 'REX v. SPEYER', (1916) 1 KB 595 ('supra') Sir F. E. Smith (later Lord Birkenhead)
contended that the remedy could only be sought at the instance of the AttorneyGeneral by an
information 'ex officio' and the order should be discharged because it had been made at the
instance of a private person. What was in question there was the appointment to the Privy
Council. The contention was negatived on the ground that the application concerned public
government and there was no ground for impugning the motives of the relator. Nor have the
motives of the applicant been questioned in the instant case. Sir George Makgill had no
private interest to serve in questioning the appointment of Sir Edgar Speyer to the Privy
Council. He brought the matter before the Court purely on public grounds. If under a
monarchical system, the first principle of which is that the King can do no wrong, an
appointment made by the King can under circumstances present in this case be questioned by
any of his subjects without showing any personal interest in the matter, we see no reason to
refuse a citizen under a democratic republican constitution to move for a writ of 'quo
warranto' for testing the validity of a high appointment under the Constitution. 20. The very
fact that the appointment in question is to an office for which provision has been made in the
Constitution renders any question about the validity of such an appointment a question of
paramount importance concerning the way in which the Constitution is being worked. Under

Cl. (2) of Art. 165 the AdvocateGeneral is the legal adviser of the Government. Under Art.
177 he has also a right to speak and take part in the proceedings of the Legislature and thus
influence the course of discussion and decision there. The present application thus concerns
public government.
75. Thus, I am far more convinced having regard to the materials on record that the case in
hand is one of lack of effective consultation.
76. Let me now look into the decisions relied upon by the learned Advocate General
appearing for the State.
77. In the case of State of Uttar Pradesh (supra), the question before the Supreme Court
was whether a legally enforceable right to claim the renewal of appointment to the post of
ADGC (Criminal) was available to the respondents and the scope of judicial review in that
regard. The High Court held the right to renewal of appointment as a legally enforceable one
and went to interfere with the decision of the State Government seeking filling up of the post
by direct selection instead of renewing the tenure of the respondents as was claimed by them
in the writ applications. Allowing the appeal of the State, the Supreme Court observed in
paras 34, 35 and 36 as under:
34. Applying the principles of law laid down by this Court in the above quoted decision, this
Court finds that the decision of the State Government not to accept the recommendation
made by the District Magistrate cannot be said to be arbitrary. There is no manner of doubt
that the A.D.G.C. (Criminal) are not only officers of the Court but also the representatives of
the State. They represent the interest of the general public before a Court of law. The holders
of the post have a public duty to perform. However, in the matter of engagement of
A.D.G.C. (Criminal) a concept of public office does not come into play. The choice is that of
the Government and none can claim a right to be appointed because it is a position of great
trust and confidence. Article 14, however in a given case, may be attracted to a limited extent
if the State fails to discharge its public duty or acts in defiance, deviation and departure of
the principles of law. 35. This position is again made clear in an unreported decision of this
Court dated November 11, 2010 rendered in Civil Appeal No. 3785 of 2003. In the said case
the State of U.P. by its order dated 03.06.2002 had rejected the request of the respondent
Satyavrat Singh for renewal of the extension of his term as District Government Counsel
(Criminal). The respondent had challenged the same in the Writ Petition. The Allahabad
High Court had quashed the order 03.06.2002 refusing renewal of the term of the respondent

as District Government Counsel (Criminal) and had directed the State Government to renew
the term of the respondent as Government Counsel. While allowing the appeal filed by the
State Government this Court has held as under:
" It is difficult to discern as to how the High Court has upheld the unstatable proposition
advanced by the respondent for extension of his term as Government Counsel. We wish to say
no more in this matter since the subject matter that arises for our consideration is squarely
covered by the decision of this Court in State of U.P. and another v. Johri Mal, 2004 (4) SCC
714 : (AIR 2004 SC 3800 : 2004 AIR SCW 3888). This Court took the view that in the matter
of engagement of a District Government Counsel, a concept of public office does not come
into play. The choice of a counsel is for the Government and none can claim a right to be a
counsel. There is no right for appointment of a Government Counsel. The High Court has
committed a grave error in renewing the appointment of the respondent as Government
Counsel. Needless to state that the High Court in exercise of its jurisdiction under Article 226
of the Constitution of India cannot compel the State to utilize the services of an advocate
irrespective of its choice. It is for the State to select its own counsel. The impugned order of
the High Court is set aside. The appeal is accordingly, allowed."
36. Thus it was not open to the respondents to file Writ Petition under Article 226 of the
Constitution for compelling the appellants to utilize their services as Advocates irrespective
of choice of the State. It was for the State to select its own Counsel. In view of the poor
performance of the respondents in handling/conducting criminal cases, this Court is of the
opinion that the High Court committed a grave error in giving direction to the District
Magistrate to forward better particulars of 10 candidates whose names were included in the
two panels prepared pursuant to advertisement dated 16.01.2004 and in setting aside order
dated 07092004 of the Principal Secretary to the Chief Minister, U.P. calling upon the
District Magistrate to send another panel/list for appointment to the two posts of
A.D.G.C. (Criminal).
77.1 The aforesaid decision of the Supreme Court is relied upon mainly to contend that the
choice is that of the State Government and the Court should not interfere with the same.
There cannot be any debate on the proposition of law, but at the same time, this judgment of
the Supreme Court should not be construed as laying down a proposition of law that if the
consultative process is found to be poor or defective, in any manner, and even if a person is
not fulfilling the eligibility criteria, the Court should not interfere with the decision of the
State Government.

78. In the case of Rajiv Ranjan Singh (supra), the writ applications were filed as the Public
Interest Litigation by the two members of the Parliament. The two members of the Parliament
had filed writ petitions before the High Court of Patna alleging large scale defalcation of
public funds and falsification of accounts involving hundreds of crores of rupees in the
Department of Animal Husbandry in the State of Bihar. It was alleged that consequent upon
change of the Government at the Centre, attempts had been made to delay and interfere with
the judicial process. It was alleged that the Public Prosecutors, who were handling the cases,
were removed, and to protect the interest of the respondents, namely, Rabri Devi and Lalu
Prasad Yadav, a convenient prosecutor was appointed. The Supreme Court, while dismissing
the writ petitions, observed in paras 50, 51 and 52 as under:
50. The appointment of lawyers is the prerogative of the Government and the prosecuting
agency. The petitioners are trying to find fault with every attempt with every step taken. In
cases like this the delay is inevitable. 51. It is also settled law that appointment of advocates,
Public Prosecutors, etc. is the prerogative of the Government in power and the court has no
role to play. 52. In the above case, the Standing Committee has taken a decision to appoint
Munni Lal Paswani and other officers after scrutinizing the records, ACRs, etc., in
accordance with Articles 233 and 235 of the Constitution of India which is the prerogative
right of the Standing Committee and the High Court and when a decision is taken it is not for
this Court to scrutinise the correctness of the decision, that too at the instances of third
parties.
78.1 The aforenoted decision is relied upon once again to fortify the submission that
appointment of the Public Prosecutor is the prerogative of the Government in power and the
Court has no role to play. This decision should not be understood as laying down a
proposition of law that the Court can never look into the legality and validity of the
appointment of a Public Prosecutor by the State Government. In the facts of that case, the
Supreme Court took the view that mere change of the Public Prosecutor was not sufficient to
find fault with the State Government.
79. In the case of Registrar General, High Court of Madras (supra), the issue before the
Supreme Court was one of selection and elevation to the office of a High Court Judge. In this
case, the collegium of the Madras High Court recommended a list of twelve persons
comprising of ten advocates and two District Judges for consideration for collegium of the
Supreme Court for appointment as Judges of the Madras High Court. The writ petitioner, a
senior advocate at the Bar, filed a writ petition seeking a direction to the Union of India and

the Supreme Court, Collegium, to return the said list as the recommendees therein were not
suitable for elevation, according to the assessment of the writ petitioner and other members of
the Bar. A Division Bench of the Madras High Court entertained the writ petition and passed
an interim direction to maintain the status quo. Aggrieved, the Madras High Court, through
the Registrar General, preferred a Special Leave Petition before the Supreme Court. The
Supreme Court made the following observations in paras 24 and 25:
24. In Special Reference No. 1 of 1998, this Court held: (SCC p.768, para 32)
32. Judicial review in the case of an appointment or a recommended appointment, to the
Supreme Court or a High Court is, therefore, available if the recommendation concerned is
not a decision of the Chief Justice of India and his seniormost colleagues, which is
constitutionally requisite. They number four in the case of a recommendation for appointment
to the Supreme Court and two in the case of a recommendation for appointment to a High
Court. Judicial review is also available if, in making the decision, the views of the seniormost
Supreme Court Judge who comes from the High Court of the proposed appointee to the
Supreme Court have not been taken into account. Similarly, if in connection with an
appointment or a recommended appointment to a High Court, the views of the Chief Justice
and senior Judges of the High Court, as aforestated, and of Supreme Court Judges
knowledgeable about that High Court have not been sought or considered by the Chief
Justice of India and his two seniormost puisne Judges, judicial review is available. Judicial
review is also available when the appointee is found to lack eligibility.
(emphasis supplied)
25. Thus, it is apparent that judicial review is permissible only on assessment of eligibility
and not on suitability. It is not a case where the writ petitioners could not wait till the
maturity of the cause i.e. decision of the collegium of this Court. They took a premature step
by filing writ petitions seeking a direction to Union of India to return the list sent by the
collegium of the Madras High Court without further waiting its consideration by the Supreme
Court collegium. Even after the President of India accepts the recommendations and
warrants of appointment are issued, the Court is competent to quash the warrant as has been
done in this case of Shri Kumar Padma Prasad v. Union of India & Ors., AIR 1992 SC 1213
wherein the recommendee was found not possessing eligibility for the elevation to the High
Court as per Article 217(2). This case goes to show that even when the President, has
appointed a person to a constitutional office, the qualification of that person to hold that
office can be examined in quo warranto proceedings and the appointment can be quashed.

(See also: B.R. Kapur v. State of Tamil Nadu)


79.1 This decision is relied upon to contend that judicial review is permissible only on
assessment of the eligibility and not on the suitability. I have discussed this aspect at length in
my judgment. This decision, in no manner, is helpful to the learned Advocate General. Page
95 of 106 HC-NIC Page 95 of 106 Created On Sat Oct 31 07:49:36 IST 2015
R/SCR.A/3734/2015 CAV JUDGMENT
80. In Central Electricity Supply Utility (supra), one D was appointed as the CEO of the
CESU. The respondent No.5 therein was appointed as Chairman of the management Board of
the CESU without any remuneration. D resigned from the post of CEO. With the intention of
ensuring the smooth functioning of the CESU, the State Electricity Regulatory Commission
decided to entrust the functions, duties and responsibilities of the CEO to the respondent
No.5. A Public Interest Litigation was filed with a prayer for issue of writ of quo warranto for
quashing of the order of the Commission entrusting the functions of the CEO of the CESU to
the respondent No.5. The High Court quashed the appointment of the respondent No.5. The
CESU preferred an appeal before the Supreme Court. While allowing the appeal, the
Supreme Court in paras 21 and 47 observed as under:
21. From the aforesaid exposition of law it is clear as noon day that the jurisdiction of the
High Court while issuing a writ of quo warranto is a limited one and can only be issued
when the person holding the public office lacks the eligibility criteria or when the
appointment is contrary to the statutory rules. That apart, the concept of locus standi which
is strictly applicable to service jurisprudence for the purpose of canvassing the legality or
correctness of the action should not be allowed to have any entry, for such allowance is likely
to exceed the limits of quo warranto which is impermissible. The basic purpose of a writ of
quo warranto is to confer jurisdiction on the constitutional courts to see that a public office
is not held by usurper without any legal authority. 47. The whole thing has to be
scrutinized from the point of view of power. Suitability or eligibility of a candidate for
appointment to a post is within the domain of the appointing authority. The only thing that
can be scrutinized by the Court is whether the appointment is contrary to the statutory
provisions/rules.
80.1 In the aforenoted decision, the Supreme Court took the view that no case was made out
for a writ of quo warranto since the Commission had the authority to make temporary
arrangement and the respondent No.5 was otherwise eligible for the said purpose. This
decision also, in no manner, is helpful to the learned Advocate General.

81. In the case of Hari Bansh Lal (supra), an appeal was preferred against the judgment and
order passed by the High Court of the Chairman allowing a Public Interest Litigation, and
thereby, quashing the appointment of Hari Bansh Lal, as the Chairman of Jharkhand State
Electricity Board. The Supreme Court, while allowing the appeal, observed in paras 15, 16
and 19 as under:
15. The above principles make it clear that except for a writ of quo warranto, Public
Interest Litigation is not maintainable in service matters. 16. A writ of quo warranto lies only
when appointment is contrary to a statutory provision. In High Court of Gujarat and another
v. Gujarat Kishan Mazdoor Panchayat and others, (2003) 4 SCC 712 : (AIR 2003 SC 1201 :
2003 AIR SCW 1578), (threeJudge Bench) Hon'ble S.B. Sinha, J. concurring with the
majority view held :
"22. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to
determine at the outset as to whether a case has been made out for issuance of a writ of
certiorari or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo
warranto is a limited one. While issuing such a writ, the Court merely makes a public
declaration but will not consider the respective impact of the candidates or other factors
which may be relevant for issuance of a writ of certiorari. (See R. K. Jain v. Union of India,
SCC para 74) : (AIR 1993 SC 1769 : 1993 AIR SCW 1890) (Para 74). 23. A writ of quo
warranto can only be issued when the appointment is contrary to the statutory rules.
(See Mor Modern Coop. Transport Society Ltd. v. Financial Commr. and Secy. to Govt. of
Haryana) (AIR 2002 SC 2513 : 2002 AIR SCW 2826)."
19. It is clear from the above decisions that even for issuance of writ of quo warranto, the
High Court has to satisfy that the appointment is contrary to the statutory rules. In the later
part of our judgment, we would discuss how the appellant herein was considered and
appointed as Chairman and whether he satisfied the relevant statutory provisions.
81.1 The above decision is relied upon once again to make good the argument that the
suitability or otherwise of a candidate for appointment to a post is the function of the
appointing authority and not of the Court unless appointment is contrary to the statutory
provisions/rules. This aspect of eligibility and suitability has been dealt with by me at length.
82. In the University of Mysore (supra), a writ of quo warranto was prayed for, calling upon
one Anniah Gowda to show cause as to under what authority he was holding the post of the

Research Reader in English in the Central College, Bangalore. The Supreme Court, while
allowing the appeals, observed in paras 6 and 7 as under:
6. The judgment of the High Court does not indicate that the attention of the High Court
was drawn to the technical nature of the writ of quo warranto which was claimed by the
respondent in the present proceedings, and the conditions which had to be satisfied before a
writ could issue in such proceedings.
7. As Halsbury has observed*: "An information in the nature of a quo warranto took the
place of the obsolete writ of quo warranto which lay against a person who claimed or
usurped an office, franchise, or liberty, to enquire by what authority he supported his claim,
in order that the right to the office or franchise might be determined." Broadly stated, the quo
warranto proceeding affords a judicial enquiry in which any person holding an independent
substantive public office, or franchise, or liberty, is called upon to show by what right he
holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of
the office has no valid title to it, the issue of the writ of quo warranto ousts him from that
office. In other words, the procedure of quo warranto confers jurisdiction and authority on
the judiciary to control executive action in the matter of making appointments to public
offices against the relevant statutory provisions; it also protects a citizen from being deprived
of public office to which he may have a right. It would thus be seen that if these proceedings
are adopted subject to the conditions recognised in that behalf, they tend to protect the public
from usurpers of public office; in some cases, persons not entitled to public office may be
allowed to occupy them and to continue to hold them as a result of the connivance of the
executive or with its active help, and in such cases, if the jurisdiction of the courts to issue
writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled
to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo
warranto, he must satisfy the court, inter alia, that the office in question is a public office and
is held by usurper without legal authority, and that necessarily leads to the enquiry as to
whether the appointment of the said alleged usurper has been made in accordance with law
or not.
82.1 The aforenoted decision is relied upon to make good the submission that once the
appointment has been made in accordance with law, then the holder of a public office cannot
be said to be an usurper of the office. This decision is also not helpful to the learned Advocate
General, in any manner, except the principle of law with which there cannot be any dispute.

83. I shall now look into the decisions relied upon by Mr. Thakkar, the learned senior
advocate appearing for the respondent No.3.
84. Mr. Thakkar placed strong reliance on the decision of the Supreme Court in the case of
Mahesh Chandra Gupta (supra). This decision has been dealt with by me at length. This
decision in a way, in my opinion, helps the writ applicants so far as the eligibility part is
concerned. This decision takes the view that fitness of a person to be so appointed would
include his character, his integrity, his competence, his knowledge and his like. All these can
be looked into only if there is a proper and effective consultative process, which in the
present case, is thoroughly lacking.
85. In the case of Awani Kumar Upadhyay (supra), the issue before the Supreme Court was
with regard to some strictures passed by the High Court against a Civil Judge, Senior
Division in a second appeal. While allowing the appeal, the Supreme Court took the view that
in the facts of that case, the remarks were unwarranted and deserved to be expunged as the
same were made behind the back of the Civil Judge. This decision is relied upon to make
good his argument that the remarks passed by the Supreme Court against the respondent No.3
should be ignored as the same were passed behind the back of the respondent No.3, and no
opportunity was given to the respondent No.3 to explain from his point of view. I am afraid,
by relying on this decision of the Supreme Court, such argument cannot be said to be fortified
in any manner. First it is too late in the day for the respondent No.3 to contend that such
remarks were passed by the Supreme Court behind his back and without any materials, and
secondly, as noted above, at no point of time, in the past eleven years, the respondent No.3
thought fit or mustered the courage to go before the Supreme Court with a prayer to expunge
such remarks.
86. The decision in the case of Om Prakash Chautala (supra), the same principle has been
explained by the Supreme Court like the one, referred to above. This decision is also not
helpful.
87. In Vinoy Kumar (supra), the Supreme Court held that a person shall have no locus
standi to file a writ petition if such person was not personally affected by the impugned order
or his fundamental rights had neither been directly or substantially invaded. The Court held
that the exception to the general rule was only in cases where the writ applied for is a writ of
habeas corpus or quo warranto or filed in public interest. In the facts of that case, the petition

was ordered to be dismissed. This decision is also not helpful, in any manner, to the
respondent No.3.
88. If the State Government would have been little careful, then probably, the litigation of the
present type could have been easily avoided. As observed by Lord Denning in one of his
Hamlyn Lectures on Freedom under the law that the Government sometimes do things which
they ought not to do; and will not do things that they ought to do. There should not be any
element of political consideration in the matters, like appointment to the post of Public
Prosecutor, etc. The only consideration for the Government should be the merit of the person.
The person should be, not only just competent, but he should be a man of impeccable
character and integrity. He should be a person, who should be able to work independently
without any reservations dictates or other constraints.
89. The relations between the Public Prosecution service and the judiciary are the very
cornerstone of the criminal justice system. Public Prosecutors, who are responsible for
conducting prosecutions and may appeal against the Court decisions, are one of Judges
natural counterparts in the trial proceedings and also in the broader context of management of
the system of criminal law. The issue in hand has a direct impact on the judiciary. It is said
that a man is known by the company he keeps. A Nation is known by the judiciary it has. The
worth of a nation is measured by its judiciary which is seen as the ultimate keeper of a
nations conscience. Ours is such a judiciary. Let no harm be fall upon the judiciary in any
manner.
90. MY FINAL CONCLUSION IS AS UNDER:
(1) The words in his opinion fit to be appointed as Public Prosecutor are not to be
construed in the sense of a mere discretionary power, but in the context of the words in
consultation with the Sessions Judge imposes a statutory duty to examine the fitness and
suitability of the persons as one of the important eligibility criteria or statutory requirements.
The words in the opinion does not mean purely subjective determination by the District
Magistrate. It is not correct to say that the words in the opinion leave the matter entirely at
the subjective will of the District Magistrate and the High Court cannot interfere in
appropriate cases even when there is a failure to comply with the legal requirements or the
decision is not in public interest.
(2) The Public Prosecutor holds a public office. He holds the public office within the scope
of a quo warranto.

(3) Apart from the eligibility criteria provided by Section 24 (7) of the Code and the rules so
far as the appointment as the Public Prosecutor is concerned, the other important eligibility
criteria is that such persons should be fit to be appointed.
(4) The institutional integrity of the institution of the Public Prosecutor should be kept in
mind while recommending the name of the candidate. Appointment to the post of a Public
Prosecutor must satisfy, not only the eligibility criteria of the candidate, but also the decision
making

process

of

the

recommendations.

(5) The present writ applications are not hit by the doctrine of res judicata. The writ
application earlier filed in public interest was dismissed only on the ground of lack of bona
fide on the part of the petitioner.
(6) The fitness of the empanelled advocates must also be examined by the Government
before appointing one of them as the Public Prosecutor.
(7) The allotment of marks or the marksheet alone can never be construed as an expression of
opinion as regards the fitness and suitability.
(8) The District Magistrate as well as the District and Sessions Judge must express their
respective opinions in writing and such opinions must reflect what was considered and how.
(9) The written opinion should also indicate whether any adverse material had come to their
notice and was looked into and discussed.
(10) Having regard to the materials on record, the case in hand is one of lack of effective
consultation.
91. For the foregoing reasons, all the three writ applications are allowed. As a sequitur, the
appointment of the respondent No.3 as the Government PleadercumPublic Prosecutor is
quashed. It is open to the Government to call for a fresh panel from the District Magistrate for
appointment to the post of Government PleadercumPublic Prosecutor. In case a fresh panel is
called for, the District Magistrate shall, in the light of the observations made hereinabove,
prepare a panel a fresh in accordance with law, and forward the same to the Government for
its consideration. Pending the appointment of the Government PleadercumPublic Prosecutor
a fresh, it is open to the authority concerned to make an interim arrangement till the
appointment is made a fresh.

92. A copy of this judgment shall be circulated among all the District Magistrates and
Principal District Judges across the State with a note that all future appointments shall be
made in consonance with what has been observed hereinabove. One copy shall also be sent to
the Principal Secretary, Legal Department, State of Gujarat at Gandhinagar.
93. In view of the order passed in the main matter, the connected Criminal Miscellaneous
Application is also disposed of.
(J.B.PARDIWALA, J.)
FURTHER ORDER
After the order is pronounced, Mr. P.R. Thakkar, the learned advocate appearing for the
appointee prays for stay of the operation of this order. In view of what has been stated above,
the request is declined.

(J.B.PARDIWALA, J.)