Andhra Pradesh High Court Orders Merit-Based Selection Process For State's Director Of Prosecution

The Andhra Pradesh High Court has recently delivered a judgment with significant implications on the appointment of the Director of Prosecution in the State. 

The Division Bench of Chief Justice Dhiraj Singh Thakur and Justice R. Raghunandan Rao passed the order in a plea filed by the Additional Director of Prosecutions, Andhra Pradesh contending that the appointment to the post of Director of Prosecutions is to be made only within the cadre of 'prosecuting officers' as stipulated in the Andhra Pradesh Prosecution Service Rules,1992 and to a candidate independent of any political affiliations.

The petitioner raised the contention that there needed to be a separation of powers between the prosecution and the Government and since the candidate appointed as the Director had also been elected as the President of the Galiveedu Mandal, he ought not to have been considered for the post.

Additionally, it was brought to the notice of the Court that while approving the recommendation, the High Court Registry brought it to the notice of the State that there was no procedure established for the appointment of the Director of Prosecutions.

The State, on the other hand, contended that the judgments relied upon by the petitioners focus on separating prosecution from the police to ensure separation of powers, and contended that individuals with political backgrounds are not automatically disqualified from holding public offices.

While setting aside the appointment, the Court noted:

The State, while filling any public post, has to follow a reasonable and fair procedure, which is transparent, and with due notice to all persons, who would fall within the zone of consideration for such appointment. In the present case, no discernible procedure has been formulated. 

Lack of Established Procedure

The court identified the absence of formal regulations governing the appointment of the Director of Prosecution as a critical issue. This lack of clarity creates an environment susceptible to subjectivity and potential bias in the selection process. It was noted that while section 25-A provides for qualifications/eligibity for appointments, there is no method or procedure set out under the provisions of law. It was noted that no period of tenure was stipulated, nor was it clear as to which authority would exercise disciplinary power over an errant director.

The bench held that a clear, fair, reasonable, and transparent procedure is imperative for just appointments. It said:

“It is not necessary that the process of appointment requires an examination to be conducted to determine relevant merit or demerit of the candidates to decide upon the best candidate available for the post of Director of Prosecution. The State would be required to put in place a reasonable procedure which is fair and transparent. It must also be remembered that the requirement of concurrence of the Hon'ble Chief Justice for any such appointment would mean that such appointment need not follow the normal process of conducting some kind of written or oral examination.”

Potential Conflict with CrPC

The court emphasized that any established selection procedure must comply with the provisions outlined in Section 25A of the Criminal Procedure Code (CrPC). This section dictates the eligibility criteria for the position, ensuring qualified individuals are considered.

The petitioner contended that the post of Director of Prosecutions should be treated as being the post of a Public Prosecutor with quasi-judicial functions.

The petitioner contended that the Director should be selected based on a State level recruitment board in the police department. The bench noted that if such a process was adopted, the concurrence of the Chief Justice demanded by section 25 would be reduced to a mere formality.

It was contended by the petitioner that as per section 4 of the AP (Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure) Act. 1994 the appointment to the post of Director is to be made by a selection committee. But the Court noted that the State Act was in contravention with the Central Act, CrPc which states that the appointment is to be made with the concurrence of the Chief Justice of the State. Court said:

“There is a clear repugnance between Section 4 of the 1994 Act and the provisions of section 25 A of Cr.P.C. requiring a decision as to which provision would prevail. Section 25A of Cr.P.C., is part of a central enactment made under the legislative field of criminal law, set out in entry 1 of the concurrent list of the VIIth Schedule to the Constitution. Article 254 of the Constitution stipulates that in the RNTJ & RRR,J W.P.No.14445 of 2023 63 event of any repugnancy between a legislation enacted by Parliament, in relation to a legislative field in the concurrent list, and a law made by a state, the law enacted by Parliament would prevail”

Restriction to Prosecution Cadre

While not explicitly addressing the argument that the Director should be chosen solely from the existing prosecution cadre, the court strongly emphasized the importance of maintaining a clear separation between the prosecution agency and political entities.

This emphasis draws upon principles established in past judgments, including Centre For PIL vs. Union of India (2014).

Separation from Political Influence

The court placed significant emphasis on the need to maintain a clear separation between the prosecution agency and political entities. This decision aligns with previous judgments, including State Of Madhya Pradesh vs. Ramashanker Raghuvanshi And Anr. and Anna Mathew & Ors., vs. Supreme Court Of India & Ors., which underscore the importance of an objective selection process free from political interference.

However, the Court held that merely because the respondent was affiliated with a political party, that itself will not disqualify him for the post in question.

Court's Directives:

The court issued several crucial directives to the state government:

• Develop a clear and objective selection process: This process must be based on merit and ensure transparency in all stages of selection.

• Ensure alignment with CrPC provisions: The established procedure must comply with the eligibility criteria outlined in Section 25A of the CrPC.

• Finalize terms of appointment: This includes details concerning tenure, disciplinary procedures, and the conditions for removal or suspension of the Director of Prosecution.

The government order by way of which the respondent was appointed to the post of Director of Prosecutions was set aside. The State was directed to appoint a new Director only after a proper procedure was established for the same but permitted the appointed director to continue in the position till a new candidate was appointed.

W.P.No.14445 of 2023

Counsel for petitioner: M. Ravindranath Reddy, Senior Counsel representing B. Srinarayana

Counsel for Respondents 1 & 3: Advocate General

Counsel for Respondent No.2: Vivek Chandrasekar S.

Counsel for Respondent No.4: V.R. Reddy Kovvuri

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