Prosecution Directors' Appointment: Supreme Court Issues Notice On Plea Against HC Quashing Bihar Rule Enhancing Eligibility Criteria

The Supreme Court recently issued notice on a special leave petition challenging Patna High Court's order striking down Rule 5 of the Bihar Prosecution Manual, 2003 as invalid. This rule pertains to the eligibility and experience criteria for the Bihar Prosecution Service.

The petition filed by an association of Prosecutors (Bihar Abhiyojan Seva Sangh) was before a bench of Justices Surya Kant and Ujjal Bhuyan, which scheduled it for further hearing on November 22, 2024.

Notice was also issued to the State of Bihar on the petition seeking condonation of the delay in filing the Special Leave Petition.

Background

Briefly stated, the matter pertains to an apparent conflict between Section 25(A) of the CrPC (a Central legislation) and Rule 5 of the Bihar Prosecution Manual (a State legislation), both of which deal with the eligibility criteria for appointment in Directorate of Prosecution.

In 2006, CrPC was amended to incorporate Section 25(A), which authorizes state governments to appoint Director and Deputy Directors of Prosecution. As per this provision, a person shall be eligible to so appointed only if he has atleast 10 years of experience as an Advocate. Further, the appointment shall be made with the concurrence of the Chief Justice of the concerned High Court.

Ten years later, the State of Bihar carried out an amendment in the Manual which substituted Rule 5. Under the new Rule 5, the minimum age and experience qualification came to be prescribed as 10 years in Bihar Prosecution Service - a standard different from the one prescribed in Section 25(A), CrPC (i.e. experience of 10 years as an Advocate).

Proceedings before the High Court

Assailing the same, one Sushil Kumar Choudhary approached the Patna High Court in 2019. He contended that the new Rule 5 was repugnant to Section 25(A) CrPC. It was his case that Section 25A, being part of a Central Legislation, prescribing a minimum eligibility requirement as 10 years of experience as an Advocate could not be diluted in any manner by any state legislation.

The petitioner argued that the amendment limited the avenue for joining such service to only such persons who had served and gained experience in the prosecution service of the State of Bihar. It did not pass the muster of constitutionality of a State Legislation in the same field in which the Central Legislation operates, he said.

Insofar as following the amendment, the recruitment process had begun, the petitioner submitted that the process ought to be declared a nullity in the eyes of law as the prescription of age and experience in the Manual was beyond the competence of the rule making authority.

State of Bihar, on the other hand, pointed out that the petitioner had chosen to challenge the constitutionality of Rule 5 after the process of appointment was completed way back in the year 2017. It was also highlighted that appointments for the post of Director and Deputy Directors of Prosecution had been made pursuant to orders of a Single Bench of the Court in a batch of writ petitions.

Although it was acknowledged that prescription of a different qualification and experience in the State Legislation ran counter to the requirements under Section 25(A) CrPC, the State submitted that annulling the appointments of approximately 500 persons (who were working) would not be appropriate. There was however no insistence for protecting the amended Rule 5 of Manual for future.

After hearing the parties, the Patna High Court held that the amendment in Rule 5(2)(II) of the Manual did not pass the constitutional muster. However, the appointments already made were decided not to be disturbed, in view of the 6 years of service rendered and the delay attributable to the petitioner in approaching the Court.

Further, the High Court directed that the State modify Rule 5 forthwith to bring it in consonance with Section 25(A) CrPC and that any future appointment process shall abide by the requirements under Section 25(A).

Case before the Supreme Court

Challenging the High Court order, petitioner-Bihar Abhiyojan Seva Sangh approached the Supreme Court. It contends that the Bihar government exercised its legislative competence in prescribing higher qualifications necessary for the efficient administration of the prosecution service.

It is the petitioner's case that the State Government, as a necessary adjunct to its power to appoint officers to State service, is entitled to prescribe qualifications for recruitment or conditions of service. Further, "the State, as an employer, is entitled to prescribe qualifications as a condition of eligibility, and such prescriptions are not amenable to judicial review, if they have a reasonable nexus to the appointment".

The petitioner argues that questions relating to prescription of qualifications and other conditions of service pertain to the field of policy and are within the exclusive discretion and jurisdiction of the State.

It also points out that there are conflicting judgments by High Courts as regards the authority of the state to prescribe additional eligibility conditions under Section 25A CrPC. As such, a clear and authoritative pronouncement by the Supreme Court is necessitated.

Referring to the top Court's decision in West U.P. Sugar Mills Assn. v. State of U.P., the petitioner further claims that the High Court erred in applying the triple test for repugnancy. As per this decision,

"Before any repugnancy can arise, the following conditions must be satisfied:

1. That there is a clear and direct inconsistency between the Central Act and the State Act

2. That such an inconsistency is absolutely irreconcilable.

3. That the inconsistency between the provisions of the two Acts is of such nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other."

Advocate-on-Record A Velan and Advocates Navpreet Kaur, Jagjeewan Singh Ranyal represent the petitioners.

Case Title: BIHAR ABHIYOJAN SEVA SANGH v. THE STATE OF BIHAR, Diary No. 41238/2024

Click here to read the order