Arbitrary, based on political interference: Gauhati High Court sets aside 2017 appointment of six Additional Public Prosecutors

The Gauhati High Court recently set aside a 2017 notification appointing six Additional Public Prosecutors for courts in Karimganj, Assam, on finding that they were appointed without due consultation and the appointments were influenced by political interference (Jyotirmoy Das and ors. v. State of Assam and ors)..Justice Kalyan Rai Surana found that the appointments appeared to have been made as per recommendations made by an MLA and a political party in power at the time..In this regard, the Court noted following aspects:The Additional District Magistrate, Karimganj had merely forwarded names sponsored by a Member of the Legislative Assembly (MLA) from Patharkandi (by letters dated November 3, 2016) and an undated list of advocates submitted by the Bharatiya Janata Party (BJP), Karimganj District Committee. This list did not contain even the name or designation of the signatory, the Court noted.The MLA, by one letter dated November 3, 2016, had recommended the name of his brother. By another letter dated November 3, 2016, the said MLA had recommended the name of a lawyer, without indicating the years of practice which the said advocate had put in.In a November 2016 letter forwarding these names, the Additional District Magistrate also did not indicate the years of practice put in by the advocates whose names were recommended by the MLA..The Judge relied on the Supreme Court's ruling in State of UP & Anr. v. Johri Mal, which had emphasised that appointments to posts such as that of the APP must not be political..Moreover, the Court found that while recommending the appointment of these APPs to the Assam government, the District Magistrate, Karimganj held no consultation with the District and Sessions Judge, Karimganj..The Court, therefore, opined that there was a violation of Section 24(4) of the Criminal Procedure Code (CrPC), which requires the District Magistrate to prepare a panel of names of persons considered fit for such appointments, in consultation with the Sessions Judge. ."Although no form of consultation is prescribed in Sub-Section 4 of Section 24 of CrPC, but the mere act of forwarding a list containing a panel of advocates, in the considered opinion of the Court would not constitute consultation," the Court explained. .Further, violations were also noticed on a reading of the rules relating to the appointment of Public Prosecutors in the Criminal Rules of the Law Department Manual. The Court pointed out that no tenure had been fixed for these appointments, whereas the relevant Law Department Manual provided for a three-year tenure to be fixed with an option to renew the term thereafter. .In this backdrop, the Court set aside the challenged appointments, while observing:."The selection and appointment of the respondents no. 4 to 9 is held to be made to be made in arbitrary manner, without any transparent method of selection as well as on political considerations. The appointment is also found to be vitiated by irregularity because the impugned order of appointment dated 10.07.2017 does not indicate the term or period or tenure of appointment, which as per Law Department Manual is 3 (three) years ... Therefore, the Court has no hesitation to set aside and quash the impugned notification no. JDJ-12018/10/2017/ESTT/ JUDI-Judicial/306-B dated 10.11.2017.".Case background.The Judgment was passed in a writ petition moved by lawyers who earlier held the post of APP in different courts of Karimganj, before they were removed and replaced in 2017..The petitioners told the Court that their names also featured in a list of panel advocates compiled in 2017 to be sent to the government for appointment as Government Pleader, Assistant Government Pleader, Public Prosecutor, Additional Public Prosecutor and Assistant Public Prosecutor in Karimganj..However, the list sent by the District Magistrate to the Assam government was found to be different from the list prepared and sent by the District and Sessions Judge to the District Magistrate. .It was argued that there was no consultation held between the District and Sessions Judge and the District Magistrate on the names finally sent to the government. The claim was denied by the State. .The Court, however, found merit in the petitioners' stance, also taking into account the sworn submission of the District and Sessions Judge that there were no records to show any consultation was made with his predecessor before the names were sent by the District Magistrate. .The names forwarded to the then-District and Sessions Judge on November 5, 2016 were found to have been based on recommendations by political persons. On the other hand, the letter sent on November 9, 2016 by the then-District and Sessions Judge to the District Magistrate contained the names of the petitioners. .Appointment of Government Counsel must be unaffected by political considerations: Court.Relying on the judgment in Kumari Shrilekha Vidyarthi Vs. State of Uttar Pradesh, the Court noted that it has powers of judicial review to ensure that the procedure adopted for appointment and engagement of law officers met the test of Article 14 of the Constitution of India. .Relying on State of Punjab & Anr. v. Brijeshwar Singh Chahal, the judge went on to highlight that there is an element of public interest attached to the appointment of such government counsel.."Such appointments must be in public interest unaffected by any political or other extraneous considerations...the Government and public bodies are under obligation to engage the most competent lawyers to represent them .... the Government and public bodies are free to choose the method of selecting the best lawyers but any such selection and appointment process must demonstrate that a search for the meritorious was undertaken and that the process was unaffected by any political or other extraneous considerations ... appointments made in an arbitrary fashion, without any transparent method of selection or for political considerations will be amenable to judicial review and liable to be quashed," the judgment stated..Fresh list of lawyers eligible to be appointed Government counsel to be prepared in six weeks.While the 2017 notification under challenge was set aside, the Court allowed the State government to carry on with the existing arrangement for six weeks from the date of the judgment (May 10) so that the State does not face an break in the provision of legal assistance. ."The State, being the largest litigant, would be put to immense difficulties to manage the civil, criminal and revenue cases in Karimganj District, and taking note of the Covid-19 pandemic prevailing in the State ... (therefore) the Court is inclined to provide that the State Government may continue with the present arrangement for a period of 6 (six) weeks from the date of this order," the Court explained..The Court added that the petitioners also do not have any right to be appointed as a government counsel or a vested right for an extension of their term. .Rather, both the petitioners as well as lawyers whose appointment was set aside can offer themselves for appointment, re-appointment or extension of service as a government counsel, the Court said. .In such an event, their claims ought to be considered on their merit, uninfluenced by any political or other extraneous consideration, the Court emphasized. .The Judge went on to direct the District Magistrate, in consultation with the District and Sessions Judge to forward a fresh list of advocates to be considered for appointment as Government Pleader, Assistant Government Pleader, Public Prosecutor, Additional Public Prosecutor and Assistant Public Prosecutor in the District of Karimganj..Upon receipt of such recommendation, the Assam government should carry out the remaining procedures within four weeks thereafter, the Court ordered. .Senior Advocate MK Choudhury, assisted by Advocate M Sarma appeared for the petitioners. Additional Advocate General D Mozumdar, assisted by Additional Senior Government D Nath appeared for the State. Senior Advocate UK Nair appeared for the District and Sessions Judge. Senior Advocate KN Choudhury, assisted Advocate N Deka and Advocate M Sarma appeared for the private respondents. .[Read Judgment]