SC Stays Bombay HC Judgment on Appointment Of Prosecutors [Read Petition And Order]

The Supreme Court on Wednesday stayed the Bombay High Court order directing the Maharashtra government to follow its 1997 rules for appointments of public prosecutors (PP) and additional public prosecutors (APP) for the districts by promoting assistant public prosecutors.

The State of Maharashtra has filed appeal against the Judgment of Bombay High Court in Maharashtra State Public Prosecutors Association and Others Vs State of Maharashtra

A bench headed by Chief Justice of India Dipak Misra also issued notice to the Maharashtra Public Prosecutors Association on whose petition the high court had passed the directions and sought response in four weeks.

While disposing of an 18-year-old petition in July, the Aurangabad bench of Bombay High Court has directed the Petitioners to make appointments of Public Prosecutors and Additional Public Prosecutors for the Districts by promoting Assistant Public Prosecutors, as per Deputy Director, Assistant Director and Public Prosecutors and Additional Public Prosecutors (Group A) in Directorate of Public Prosecution, Maharashtra State (Recruitment Rules) 1997.

According to the state government, “the 1997 Rules are referable to Section 25 of the Criminal Procedure Code and not to Section 24 of the Code.”

The state has amended Section 24 by introducing Sub-Section 6A, which empowers the state government to appoint the lawyers directly as PP and APP for a fixed tenure.

The HC had held that the appointments of the APPs already working on tenure posts in various districts be terminated and after making assessments make the vacancies available for the promotion of the assistant public prosecutors to the said posts.

In its petition before the apex court, the state government said that due to the HC order, the entire working of the district and sessions courts throughout the state of Maharashtra as well as that of the Judicial Magistrate, First Class / Metropolitan Magistrates shall be adversely affected.

The HC had also set a deadline of three months for the state to appoint the additional public prosecutors from the quota of promotion on basis of posts made available as per rules of 1997.

The Prosecutors’ Association had reached out to the high court against the state government for directly appointing public prosecutors on contract basis from the Bar.

The State has raised the following issues in its appeal;

(A)  Whether Sub-Section 6A of Section 24 of the Code, (Maharashtra Amendment) prevails over Deputy Director, Assistant Director and Public Prosecutors and Additional Public Prosecutors (Group A) in Directorate of Public  Prosecution, Maharashtra State (Recruitment Rules) 1997 (“1997 Rules”) framed under Article 309 of Constitution of India and Sub-Section 6 of Section 24 of the Code?

(B)   Whether 1997 Rules apply for the appointments of Public Prosecutors and Additional Public Prosecutors working in Districts and Sessions Courts as they are not “employee” of the State and they hold independent public office. Without prejudice and assuming without admitting that they can be employees, whether the Petitioners have constituted a “Regular Cadre of Prosecuting Officers” in the State of Maharashtra as contemplated by Section 24(6) of the Code?

(C)   Whether it is open for State to make appointments to the office of Public Prosecutor/Additional Public Prosecutor by exercising powers under sub-section 6A of section 24 of the code?

(D)  Whether in view of insertion of Sub –section 6A of section 24 of the code 1997 Rules lose their full efficacy and applicability?

(E)   Whether the Hon’ble High Court is justified in issuing a writ of mandamus directing the State to make appointments / promotions by only one mode of appointments to the exclusion of the other?

(F)   Whether grant/consideration for promotion is a vested and/or accrued right and can be enforced under Article 226 of the Constitution of India?

The Bench has posted the matter for further hearing on December 11.