Gujarat HC judgment on appointment of Public Prosecutor

4 Whether This Case Involves A ...
vs State Of Gujarat & 2 on 30 October, 2015
Gujarat High Court

4 Whether This Case Involves A ... vs State Of Gujarat & 2 on 30 October, 2015
R/SCR.A/3734/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 3734 of 2015

With
SPECIAL CRIMINAL APPLICATION NO. 4360 of 2015
With
With
CRIMINAL MISC. APPLICATION NO. 11998 of 2015
In
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to
the Reporter or not ?
YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case
involves a substantial question of law as to the interpretation of the Constitution of India NO or any
order made thereunder ?
========================================================== 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 HC-NIC Page 1 of 106
Created On Sat Oct 31 02:44:08 IST 2015 MR SHALIN MEHTA WITH MR PR THAKKAR, SR
ADVOCATES for the MR KAMAL B TRIVEDI ADVOCATE GENERAL WITH MR MITESH AMIN
PUBLIC 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 MR KAMAL B TRIVEDI ADVOCATE GENERAL WITH MR
Indian Kanoon - http://indiankanoon.org/doc/125768843/ 1

MITESH AMIN PUBLIC 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 MR
KAMAL B TRIVEDI ADVOCATE GENERAL WITH MR MITESH AMIN PUBLIC CR.M.A. NO.11998
OF 2015:
MR BB NAIK, SR ADVOCATE WITH MR RJ GOSWAMI, ADVOCATE for the MR SHALIN MEHTA

WITH MR PR THAKKAR, SR ADVOCATES for the MR KAMAL TRIVEDI, ADVOCATE GENERAL
W I T H M R M I T E S H A M I N , P U B L I C
========================================================== CORAM:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :30/10/2015 CAV 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 HC-NIC Page 2 of 106
C r e a t e d O n S a t O c t 3 1 0 2 : 4 4 : 0 8 I S T 2 0 1 5
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
o f f i c e o f t h e D i s t r i c t G o v e r n m e n t P l e a d e r
(DGP) and Public Prosecutor, Vadodara, as according to them, he is not HC-NIC Page 3 of 106
Created On Sat Oct 31 02:44:08 IST 2015 fit and suitable for the post. It is the
c a s e o f t h e w r i t a p p l i c a n t s t h a t
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
b e t w e e n t h e D i s t r i c t M a g i s t r a t e a n d t h e
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
n u m b e r o f p e o p l e . I n t h e g h a s t l y
incident, 14 persons died. The attacks were stated to be a part of the HC-NIC Page 4 of 106 Created
O n S a t O c t 3 1 0 2 : 4 4 : 0 8 I S T 2 0 1 5
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
e y e w i t n e s s t o t h e i n c i d e n t w h o l o s t h e r
family members including helpless women and innocent children in the gruesome incident. Many
p e r s o n s o t h e r t h a n Z a h i r a w e r e a l s o t h e
eyewitnesses. The accused persons were the perpetrators of the crime. After the investigation,
a chargesheet was filed in June 2002. During trial the purported eye−witnesses 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
d i r e c t e d a c q u i t t a l o f t h e a c c u s e d p e r s o n s .
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 HC-NIC Page 5 of 106 Created On Sat
Oct 31 02:44:08 IST 2015 High Court.
4.2 While allowing the appeals, the Supreme Court severely criticized the manner in which the
e n t i r e t r i a l w a s c o n d u c t e d a n d m o r e
particularly, the dubious role sought to have been played by the Public
Prosecutor, namely, Shri Pandya, who was In−charge of the trial. The Supreme Court made the
f o l l o w i n g o b s e r v a t i o n s i n t h e r e p o r t e d
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
p u b l i c c o n f i d e n c e i n t h e a d m i n i s t r a t i o n o f
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 HC-NIC Page 6 of 106 Created On Sat Oct 31
02:44:08 IST 2015 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
t h e q u a l i t y o f f a i r n e s s t o a d e g r e e

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
v i c t i m a n d t h e s o c i e t y . F a i r t r i a l
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 HC-NIC Page 7 of 106 Created On Sat Oct 31 02:44:08 IST 2015
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
r o l e i n t h e e v i d e n c e c o l l e c t i n g
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
b e w i s h f u l l y o r p r e t e n d t o b e
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
p e r s o n s a r e p u n i s h e d a n d t h a t t h e
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
h i d e t h e r e a l i t i e s o r c o v e r i n g t h e
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 HC-NIC Page 8 of 106
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
b e p e r f u n c t o r y a n d a n y t h i n g b u t i m p a r t i a l
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
a n d p r e f e r r e d t o b e i n d i f f e r e n t t o
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
i n n o c e n t c h i l d r e n a n d h e l p l e s s w o m e n
were burning, and were probably deliberating how the perpetrators of the HC-NIC Page 9 of 106
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 re−trial 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 out−turn 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
t h e p r a y e r f o r a d d i t i o n a l e v i d e n c e .
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 HC-NIC Page 10 of 106
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
l a n g u a g e t h o u g h t h e w i t n e s s e s d i d n o t k n o w
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. Sub−section (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. Sub−section (3) is relevant, and it requires the police officer
t o r e d u c e i n t o w r i t i n g a n y
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
w h o s e s t a t e m e n t h e r e c o r d s . S t a t e m e n t
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
n o n − e x a m i n a t i o n o f t h e e y e −
witnesses 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 non− examination. 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
d a t e f i x e d . T h i s u n u s u a l c o n d u c t b y t h e
prosecutor should have been seriously taken note of by the Trial Court and also by the High Court.
I t i s t o b e n o t e d t h a t t h e H i g h C o u r t h a s f o u n d
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 HC-NIC Page 11 of 106
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
i n v e s t i g a t i n g o f f i c e r b e i n g p r e s e n t d u r i n g
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.657−58, para 9)
"In our view, in a murder trial, it is sordid and repulsive matter that without informing the
p o l i c e s t a t i o n o f f i c e r − i n − c h a r g e , t h e

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
s u m m o n s t o t h e i n v e s t i g a t i n g o f f i c e r i f h e
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/non−bailable 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 non−examining victims
a n d i n j u r e d w i t n e s s e s a d o p t e d b y t h e
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
u n u s u a l p r o c e d u r e w a s h i g h l i g h t e d
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 re−trial shall be done by a Court under the jurisdiction of HC-NIC Page 12 of 106
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 Court's 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 Hon'ble 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 HC-NIC
Page 13 of 106 Created On Sat Oct 31 02:44:08 IST 2015 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 Hon'ble 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 Hon'ble Court which is also filed under
A r t i c l e 2 2 6 a n d 2 2 7 o f t h e
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 Hon'ble Division Bench (Coram : Hon'ble 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 R−I. Hence, the
issue which has been raised by the present petitioner in this petition, prima
facie, gone into by PIL bench and the Hon'ble 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 Hon'ble
Court to place on record a copy of the said Writ Petition (PIL) no.125 of

2015 along with all its annexure as Annexure R−II.
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
r e l i e v e d f r o m D G P & P P o f f i c e o n 2 2 . 0 4 . 2 0 0 8 .
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. HC-NIC Page 14 of 106
Shah was extended for one year i.e. up to 31.12.2012. Mr. N.S. Shah had remained in this office
as In−charge 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
g i v e n b y t h e C o l l e c t o r , V a d o d a r a a n d t h e
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 R−III. In this panel list the respondent no.3's 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
p u t o n t h e f i l e s a n d i t w a s
forwarded to the State Government for further proceedings. Thenafter as
there was submissions by the Legal Department that the documents related to the Income Tax
papers are not available on record the State HC-NIC Page 15 of 106 Created On Sat Oct 31
02:44:08 IST 2015 Government had also taken view that these papers should be called for and
thenafter, file should be resubmitted to the State Government. This note
has bee 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
h a d s e l e c t e d r e s p o n d e n t n o . 3 a s A D P & P P o f
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 leveled 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 thenafter the appointment of
respondent no.3 was made. Even otherwise it is not stated in the present
petition by the petitioner before this Hon'ble 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 affidavit−in−reply 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 Hon'ble
Division Bench and by an order dated 02.07.2015, the Hon'ble Division
Bench and by an order dated 02.07.2015, the Hon'ble 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 Annexure−R1 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 HC-NIC Page 16 of 106
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 Hon'ble
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 Hon'ble Criminal Court at Vadodara.
Sr. FIR No. Complainant Sections

No.
1 M Case No.61/99 Kashinath Babubhai 464, 465, 467, 471 114
dtd.16/4/99 Yadav of IPC before First Cour
Vadodara
2 Criminal Case Kaniyalal Nanakram 406, 415, 420, 506(2
No.3221/96 Relvani and 114 of IPC
dd.2/9/96
3 Cr.P.C. 202 Inq. Anajnaben 467, 468, 471 and 114
No.0/5/06 Ashokbhai Santwani of IPC before Chief

Court, Sayanjiganj
Police Station
4 Inq. No.0/13/01 Kailash @ Sony 506, 504, 342 of I
Kaniyalal Jagyasi before First Court
Vadodara City
5 Vadi I C.R. No.52/06 Santosh G. Lachchu
as per provisions of Sankhvani declared in
section ; 15(2) of that he filed ap
Contempt of Court Act before the Hon'b
Court for di
remand and b
the said applica
dismissed. (Fi
Vadodara)
6 Criminal Case Santosh G. 500, 501A,B,
No.7302/07 dtd. Sukhwani 34 of IPC before
HC-NIC Page 17 of 106 Created On Sat Oct 31 02:44:
17/04/07 Court Vadodara City

7 Criminal Case Santosh G. 500, 501A,B, 50
No.8453/07 dtd. Sukhwani 34 of IPC before Se
23/04/07 Court Vadodara City
8 Criminal Case Kishanchand 500, 34 and 114 of I
No.18155/07 Ishardas Nathani before First Cou
Vadodara City
9 Criminal Case Jagdish K. Ramani 500, 506 and 34 of I
No.16773/07 before Second Co
Vadodara City
10 Criminal Case −−−− −−− 15(2) of Contemp
No.1232/07 Court Act before Dis
Court Vadodara.

No.
1 Application Vedprakash Melumal 406, 420, 488, 451,
dtd.30/10/2005 Arya 465, 467, 468, 471,
384, 506(2), 120(B) of
IPC
2 Application Vedprakash Melumal 406, 420, 488, 451,
dtd.10/11/2005 given Arya 465, 467, 468, 471,
to 'A' Division 384, 506(2), 120(B) of
IPC

3 Application Vedprakash Melumal 107, 120B, 166, 167,
dtd.19/10/2006 given Arya and Police 177, 192, 196, 197, to CID crime Commissioner /
199, 200, 201, 211, officers 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.

No.
1 19/05/07 For filing false Police Commissioner
complaint against Vadodara City
harassing the
HC-NIC Page 18 of 106 Created On Sat Oct 31 02:44:08
people/businessmen
2 13/03/08 For legally search of Police Commission
complaint filed Vadodara City
before Panigate
Police Station
(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 Hon'ble Court and hence a writ of quo−warranto would
not lie once that the issue at hand is already decide by the Division Bench of this Hon'ble 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 re−appointed 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 / 2 0 0 8 . T h u s , e v e n a f t e r t h e s a i d
judgment of Hon'ble 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.
HC-NIC Page 19 of 106 Created On Sat Oct 31 02:44:08 IST 2015
(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 Hon'ble 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
n o t i c e b o a r d o f C o l l e c t o r , i n v i t i n g t h e
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.
a p p e a r s t o h a v e m a d e e f f e c t i v e
consultation with the Hon'ble 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 Hon'ble 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 ) n o t a t t a i n e d t h e a g e o f 6 0 y e a r s a n d
(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 Hon'ble Court in view of settled
law laid down by the Hon'ble Supreme Court.
(q) I state that the State Government had never lost the confidence from HC-NIC Page 20 of 106
me even after the remark of the Hon'ble 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 Hon'ble 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
L a w a n d R u l e s h a v e b e e n s t r i c t l y
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 Hon'ble 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 Hon'ble Supreme Court, in no
s t r e n g t h o f i m a g i n a t i o n w o u l d a d v e r s e l y

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:
HC-NIC Page 21 of 106 Created On Sat Oct 31 02:44:08 IST 2015 (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
so−called 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 HC-NIC Page 22 of 106
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) Non−consideration 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)] HC-NIC Page 24 of 106 Created On Sat Oct 31 02:44:08 IST
2015 (3) Central Electricity Supply Ulitity of Odisha v. Dhobei Sahoo
a n d o t h e r s [ ( 2 0 1 4 ) 1 S C C 1 6 1 ]
(4) Centre for PIL and another v. Union of India and another
[ ( 2 0 1 1 ) 4 S C C 1 ( p a r a s 2 , 3 6 , 3 7 , 4 2 , 4 3 , 4 5 ) ]
(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, 14−20]
(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 HC-NIC Page 25 of 106 Created
O n S a t O c t 3 1 0 2 : 4 4 : 0 8 I S T 2 0 1 5
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
r e v i e w . T h e c o n s u l t a t i o n f o r m s p a r t o f t h e
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
P r o s e c u t o r . H e s u b m i t t e d t h a t i n a w r i t
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.
HC-NIC Page 26 of 106 Created On Sat Oct 31 02:44:08 IST 2015 11.5 Mr. Trivedi submitted that
s o f a r a s t h e o b s e r v a t i o n s o f t h e
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
f o r a l l t i m e s t o c o m e . M r .

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 a 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. HC-NIC Page 27 of 106 Created On Sat Oct 31
02:44:08 IST 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)
S C C 3 4 1 ( p a r a s 1 4 t o 1 7 a n d 3 5 t o 3 7 ) ]
(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
[ A I R 1 9 6 5 S C 4 9 1 ( p a r a s 6 a n d 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 HC-NIC
Page 28 of 106 Created On Sat Oct 31 02:44:08 IST 2015
have been preferred in good faith. The learned counsel submitted that the observations of the
S u p r e m e C o u r t i n t h e c a s e o f Z a h i r a S h e i k h
(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
p r e s e n t t y p e s h o u l d n o t b e e n c o u r a g e d
considering the criminal history of one of the petitioners. The details of
the history has been stated in the affidavit−in−reply 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 HC-NIC Page 30 of 106 Created On Sat
Oct 31 02:44:08 IST 2015 tenure is as under:
Sr. Date of Date on which the Time span Post of th

No. Appointment term expired Respondent
No.3
1 27.02.1997 26.02.2002 5 years A.PP.
01.06.2000 26.02.2002 2 years In−charge 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 a period
DGP & PP of 2 years 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,
f r a n c h i s e o r l i b e r t y t o i n q u i r e b y w h a t
authority he was in the office, franchise of liberty. In case his claim was
not well founded or there was non−use, neglect, misuse or abuse of the HC-NIC Page 31 of 106
Created On Sat Oct 31 02:44:08 IST 2015 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 mis−user or non−user. 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 HC-NIC Page 32 of 106
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
t h e v a l i d i t y o f a n a p p o i n t m e n t o f 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 HC-NIC Page 33 of 106
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 HC-NIC Page 34 of 106 Created On Sat Oct 31
02:44:08 IST 2015 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
b e e n d e f i n e d u n d e r t h e
Cr.P.C. "Public Office" as explained by the Major Law Lexicon 4th Edition 2010 is as under :
" P u b l i c O f f i c e " d e f i n e d . 5 5 − 6 V . c . 4 0 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.),
( 1 9 8 0 ) S u p p S C C 2 4 9 , 2 6 6 p a r a 2 6 ]
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."
HC-NIC Page 35 of 106 Created On Sat Oct 31 02:44:08 IST 2015 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
t h e C r o w n o r o t h e r w i s e . " I n 1 9 1 4 ,
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 Lord−Lieutenant 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;
HC-NIC Page 36 of 106 Created On Sat Oct 31 02:44:08 IST 2015 "The chief characteristics of a
'Public Office' (apart from any statutory definition) are that it is a post the
o c c u p a t i o n o f w h i c h i n v o l v e s t h e
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 "quo−
warranto 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 HC-NIC Page 37 of
1 0 6 C r e a t e d O n S a t O c t 3 1 0 2 : 4 4 : 0 8 I S T 2 0 1 5
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
6 9 4 ; M a d u k a r G . E . p a n k a k e r v . J a s w a n t
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 the Code, he receives special recognition.
STATUTORY PROVISIONS:
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;
HC-NIC Page 38 of 106 Created On Sat Oct 31 02:44:08 IST 2015 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
t h e S t a t e
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
sub−section (4).
(6) Notwithstanding anything contained in sub−section (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 sub−section (4).

[Explanation.−For the purposes of this sub−section,−
(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
P r o s e c u t o r u n d e r t h i s C o d e . ]
(7) A person shall be eligible to be appointed as a Public Prosecutor or an
Additional Public Prosecutor under sub−section (1) or sub−section (2) or
sub−section (3) or sub−section (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
t h a n t e n y e a r s a s a S p e c i a l P u b l i c
Prosecutor. c ['Provided that the Court may permit the victim to engage an
advocate of his choice to assist the prosecution under this sub−section']. (9) For the purposes
of sub−section (7) and sub−section (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 HC-NIC Page
40 of 106 Created On Sat Oct 31 02:44:08 IST 2015

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 sub−section (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 HC-NIC Page 41 of 106 Created On Sat Oct 31 02:44:08 IST 2015
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 Aiyar's 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.'
T h i s w o r d ' i d o n e u s ' s a y s L o r d C o k e , i s
'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 Black's Law Dictionary (pg. 573, 5 th Edition) , "Fit.
HC-NIC Page 42 of 106 Created On Sat Oct 31 02:44:08 IST 2015 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),
" A d a p t e d t o t h e r e q u i r e m e n t s o f t h e c a s e ,
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 sub−section (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
P r o s e c u t o r o r A d d i t i o n a l P u b l i c
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 sub−
section (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 HC-NIC
Page 43 of 106 Created On Sat Oct 31 02:44:08 IST 2015 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 Black's 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),
" A g r e e i n g i n n a t u r e , c o n d i t i o n o r a c t i o n ;
corresponding, analogous". "That is fitted for or appropriate for a purpose,
occasion, person's 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; HC-NIC Page 44 of 106 Created On Sat Oct
31 02:44:08 IST 2015
(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
d o . . . " ( p a r a 9 , e m p h a s i s s u p p l i e d ) 3 2
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 HC-NIC Page 45 of 106

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
H i g h C o u r t " a p p e a r i n g i n S e c t i o n 1 6 o f t h e
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.
S a l i l S a b h l o k , [ ( 2 0 1 3 ) 5 S C C 1 ] , t h e
Supreme Court observed that the office of the Chairman of the Public Service Commission must
b e m a n n e d b y c o m p e t e n t , h o n e s t a n d
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]
e m p h a s i s w a s p l a c e d o n t h e n e c e s s i t y t o m a k e t h e
appointment keeping in mind the need for the institutional integrity and
to take into consideration what is good for the institution and not what HC-NIC Page 46 of 106
Created On Sat Oct 31 02:44:08 IST 2015 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
A r t i c l e 2 1 7 o f t h e C o n s t i t u t i o n o f I n d i a
(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
a p p o i n t e e m u s t b e f i t o r
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 HC-NIC Page 47 of 106
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
e n f o r c e m e n t s y s t e m i n v e s t i g a t e s c r i m e s a n d
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 HC-NIC Page 48 of 106
Prosecutor cannot be over−emphasized. 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
p e r s o n a p p o i n t e d a s P u b l i c P r o s e c u t o r m u s t ,
therefore, be one who is not only able and efficient, but also enjoys a reputation and prestige
w h i c h s a t i s f y h i s a p p o i n t m e n t a s a P u b l i c
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
c a s e . T h e e x p e c t e d a t t i t u d e o f t h e P u b l i c
Prosecutor while conducting prosecution must be couched in fairness not HC-NIC Page 49 of 106
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
d e f e n c e c o u n s e l o v e r l o o k e d i t , t h e P u b l i c
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 human−being 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 HC-NIC Page 50 of 106 Created On
S a t O c t 3 1 0 2 : 4 4 : 0 8 I S T 2 0 1 5
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
c l u t c h e s o f l a w . H e i s n o t o n l y
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
relations can never be wiped out.
INSTITUTIONAL INTEGRITY OF THE OFFICE OF THE 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 decision− making process of the
r e c o m m e n d a t i o n . T h e d e c i s i o n t o r e c o m m e n d
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 HC-NIC Page 51 of 106 Created On
Sat Oct 31 02:44:08 IST 2015 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
p r i m a r y c o n s i d e r a t i o n w h i l e
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 co−relationship with institutional integrity. If a duty is cast under the Section to
recommend the name of the selected candidates, the
integrity of that decision−making 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 HC-NIC Page 52 of 106
Created On Sat Oct 31 02:44:08 IST 2015 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
t h e v i e w t h e r e , e x p r e s s e d a b o u t a G o v e r n m e n t
Pleader's office, as broadly correct even in the Bihar set−up.
". . . 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
t o c o n d u c t i n c o u r t s c a s e s t o w h i c h
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
e x c h e q u e r a n d h a v i n g r e g a r d t o t h e
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 HC-NIC Page 53 of 106
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 sub−section (4) and sub−section (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
p a n e l . T h e e x p r e s s i o n " p a n e l o f n a m e s o f
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
a d m i n i s t r a t i v e p o i n t o f v i e w . ( H a r p a l S i n g h
Chauhan (AIR 1993 SC 2436)). There must be effective meaningful and
real consultation between the Sessions Judge and the District Magistrate HC-NIC Page 54 of 106
Created On Sat Oct 31 02:44:08 IST 2015 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
a r e " f i t " t o b e a p p o i n t e d a s t h e P u b l i c
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
short−listing 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
P u b l i c P r o s e c u t o r , w o u l d i n c l u d e t h e
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, HC-NIC Page 55 of 106
Created On Sat Oct 31 02:44:08 IST 2015 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
t h e S e s s i o n s J u d g e h a s a f a r r e a c h i n g

consequence, inasmuch as, the State Government intends to select the

best person for being appointed on the post of Government Pleader and Public Prosecutor
a n d w h o c a n b e i n a m o r e b e t t e r p o s i t i o n t h a n t h e
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 HC-NIC Page 56 of 106
Created On Sat Oct 31 02:44:08 IST 2015 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 HC-NIC Page 57 of 106 Created On Sat
Oct 31 02:44:08 IST 2015 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. 16−A, 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 three−Judge Bench of HC-NIC Page
58 of 106 Created On Sat Oct 31 02:44:08 IST 2015
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
a p p o i n t i n g t h e

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 vis−a−vis 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 HC-NIC Page 59 of 106 Created On
Sat Oct 31 02:44:08 IST 2015 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
Advocates−on−record 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] GLHEL−SC 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."
HC-NIC Page 60 of 106 Created On Sat Oct 31 02:44:08 IST 2015 48 In Sheodan Singh v. Daryao
K u n w a r , ( 1 9 6 6 ) 4 S C R 3 0 0 , t h e
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 HC-NIC Page 62 of 106
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
( i i i ) B a b u l a l S h a h 5 0 . 4
The State Government noted that Mr. Pandya's 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 In−charge 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.
HC-NIC Page 63 of 106 Created On Sat Oct 31 02:44:08 IST 2015 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. HC-NIC Page 64 of 106 Created
On Sat Oct 31 02:44:08 IST 2015 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
S e c r e t a r y , L e g a l D e p a r t m e n t , f u r n i s h e d c e r t a i n
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.
HC-NIC Page 65 of 106 Created On Sat Oct 31 02:44:08 IST 2015 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 HC-NIC Page 66 of 106
Created On Sat Oct 31 02:44:08 IST 2015 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.
t h e c o n c e r n e d M i n i s t e r p u t a n
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 HC-NIC Page 67 of 106
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
w o n d e r , w h e t h e r t h e S t a t e
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
a l l a r e f i t t o b e a p p o i n t e d a n d i f t h e
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
c o n s u l t a t i o n w i t h t h e S e s s i o n s J u d g e . T h e S t a t e
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 HC-NIC Page 68 of 106
Created On Sat Oct 31 02:44:08 IST 2015 exercise to determine the
f i t n e s s a n d s u i t a b i l i t y o f t h e c a n d i d a t e s , b u t
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
t h e s i d e s a s r e g a r d s t h e d i s t i n c t i o n
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
w h e n " e l i g i b i l i t y ' " i s p u t i n
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
t h e a s p e c t o f " s u i t a b i l i t y " , s t a n d s e x c l u d e d
from the purview of a judicial review. The Supreme Court also observed that once there is a
consultation, the content of that consultation is HC-NIC Page 69 of 106 Created On Sat Oct
31 02:44:08 IST 2015 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 HC-NIC Page 70 of
1 0 6 C r e a t e d O n S a t O c t 3 1 0 2 : 4 4 : 0 8 I S T 2 0 1 5
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 Advocates−on−Record 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 HC-NIC Page 71 of 106 Created On Sat Oct 31 02:44:08 IST 2015
Advocates−on−Record 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 well−settled 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 subject−matter of judicial review is the opinion of the Chief
Justice touching upon the merit of the decision but the decision− making
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 HC-NIC Page 72 of 106 Created On Sat Oct 31
02:44:08 IST 2015 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. 76−77, 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
b y a n a m e n d m e n t . I t s e e m s t o u s t h a t i t w a s
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 HC-NIC Page 73 of 106
Created On Sat Oct 31 02:44:08 IST 2015 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
t h a n M r . D h a n d a . T h e r e i s n o t h i n g t o s h o w
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 HC-NIC Page 74 of 106 Created On Sat Oct 31 02:44:08 IST 2015
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 in−built
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 sub−section 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 sub−section, '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 HC-NIC Page 75 of 106
Created On Sat Oct 31 02:44:08 IST 2015 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
High−Powered 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 3−9−2010 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 anti−corruption 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 HC-NIC Page 76 of 106
Created On Sat Oct 31 02:44:08 IST 2015 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
f r o m h i s o f f i c e o n l y b y t h e o r d e r o f t h e
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 3−9−2010.
43. Appointment to the post of the Central Vigilance Commissioner must satisfy not only the
eligibility criteria of the candidate but also the decision−making
process of the recommendation (see SCC para 88 of N. Kannadasan). The decision to

r e c o m m e n d h a s g o t t o b e a n i n f o r m e d
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 HC-NIC Page 77 of 106
relevant. It certainly has a co−relationship 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 26−6−2000, 18−1−2001, 20−6−2003, 24−2−2004, 18−10−2004 and 2− 11−2004 have all
observed that penalty proceedings may be initiated against Shri P.J. Thomas. Whether
t h e S t a t e s h o u l d i n i t i a t e s u c h
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 6−10−2008. 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

w i t h t h e i n s t i t u t i o n a n d i t s
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
C o m m i s s i o n e r . W h e t h e r t h e i n s t i t u t i o n a l
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 HC-NIC Page 78 of 106 Created On Sat
Oct 31 02:44:08 IST 2015 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 3−9−2010 of the HPC is entirely
premised on the blanket clearance given by the CVC on 6−10−2008 and on
the fact of Respondent 2 being appointed as the Chief Secretary of Kerala
on 18−9−2007, 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
P a l m o l e i n c a s e b e f o r e t h e S p e c i a l J u d g e ,
Thiruvananthapuram being case CC No. 6 of 2003; the sanction accorded
by the Government of Kerala on 30−11−1999 under Section 197 CrPC for
prosecuting inter alia Shri P.J. Thomas for having committed the alleged offence under Section
120−B IPC read with Section 13(1)(d) of the
Prevention of Corruption Act; the judgment of the Supreme Court dated 29−3−2000 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 6−10−2008 was not binding on the
HPC. However, the aforestated judgment of the
Supreme Court dated 29−3−2000 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 judgment--institution is more
important than individual(s).
49. For the above reasons, it is declared that the recommendation made by
the HPC on 3−9−2010 is non est in law."
HC-NIC Page 79 of 106 Created On Sat Oct 31 02:44:08 IST 2015 61

I am of the firm view that the District Magistrate as well as the District Judge should express
t h e i r r e s p e c t i v e o p i n i o n s a s r e g a r d s t h e
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
s e n i o r m e m b e r s o f t h e B a r a s r e g a r d s t h e
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 HC-NIC Page 80 of 106
Created On Sat Oct 31 02:44:08 IST 2015 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
m a r k s h e e t a l o n e s h o u l d b e c o n s t r u e d a s a n
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 HC-NIC Page 81 of 106 Created On Sat Oct
31 02:44:08 IST 2015 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
f i n a l e x p r e s s i o n o f o p i n i o n o n t h e f i t n e s s a n d
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 Knowledge Communic Experience
Qualificati Overall Total candidate of Law ation skills ons conduct and personality traits 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
w o u l d a p p o i n t E a s t h e P u b l i c P r o s e c u t o r
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 HC-NIC Page 82 of 106
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
m a r k s . I f i n d a l o t o f m e r i t i n t h e
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 HC-NIC Page 83 of 106
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 p a n e l o f n a m e s o f e l i g i b l e c a n d i d a t e s n o r t h e
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 HC-NIC Page 85 of 106
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
t h e r e s p o n d e n t s t h a t t h e r e m a r k s
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
l i k e t h e a p p r o a c h o f t h e r e s p o n d e n t N o . 3 i n
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
a f t e r s u c h r e m a r k s w e r e p a s s e d , t h e
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. HC-NIC Page 86 of 106 Created On Sat
Oct 31 02:44:08 IST 2015 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 well− known
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 HC-NIC Page 87
of 106 Created On Sat Oct 31 02:44:08 IST 2015
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 non−performance pf any duty towards
him. What is in question is the right of the non−
applicant, to hold the office; the order that is passed is an order ousting him from that office. Since
t h e b a s i c a u t h o r i t y R e s v . S p e y e r , ( 1 9 1 6 ) 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 1916−1
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 Vice−Chancellor, 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.
I t i s e n o u g h f o r i t s i s s u e t h a t t h e r e l a t o r i s a
member of the public and acts bona fide and is not a mere pawn in the HC-NIC Page 88 of 106
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 non−performance of duty towards him.What
is in question is the right of the non−applicant 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 K B 5 9 5 ( ' s u p r a ' ) i s
"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 Attorney−General 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 HC-NIC Page 89 of 106 Created On Sat Oct
31 02:44:08 IST 2015 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 Advocate−General 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 HC-NIC Page 90 of 106 Created On Sat Oct 31 02:44:08 IST 2015
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
b y t h e r e s p o n d e n t f o r e x t e n s i o n o f h i s
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
c r i m i n a l c a s e s , t h i s C o u r t i s o f t h e
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
p a n e l s p r e p a r e d p u r s u a n t t o
advertisement dated 16.01.2004 and in setting aside order dated 07−09−
2004 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
R a j i v R a n j a n S i n g h ( s u p r a ) , t h e w r i t a p p l i c a t i o n s
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
a c c o u n t s i n v o l v i n g h u n d r e d s o f c r o r e s o f
rupees in the Department of Animal Husbandry in the State of Bihar. It HC-NIC Page 92 of 106
Created On Sat Oct 31 02:44:08 IST 2015 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
p o w e r a n d t h e C o u r t h a s n o r o l e t o p l a y . T h i s
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 HC-NIC Page 93 of 106
Created On Sat Oct 31 02:44:08 IST 2015 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
U n i o n o f I n d i a a n d t h e S u p r e m e C o u r t ,
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 HC-NIC Page 94 of 106 Created On
Sat Oct 31 02:44:08 IST 2015 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. HC-NIC Page 95 of 106 Created
On Sat Oct 31 02:44:08 IST 2015 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."
HC-NIC Page 96 of 106 Created On Sat Oct 31 02:44:08 IST 2015 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), (three−Judge 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).""
HC-NIC Page 97 of 106 Created On Sat Oct 31 02:44:08 IST 2015 "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
o r o t h e r w i s e o f a c a n d i d a t e f o r
appointment to a post is the function of the appointing authority and not of the Court unless
a p p o i n t m e n t i s c o n t r a r y t o t h e s t a t u t o r y
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 HC-NIC Page 99 of 106
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
t h e b a c k o f t h e r e s p o n d e n t
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 HC-NIC Page 100 of 106
and without any materials, and secondly, as noted above, at no point of time, in the past eleven
y e a r s , t h e r e s p o n d e n t N o . 3 t h o u g h t f i t o r
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
t o f i l e a w r i t p e t i t i o n i f s u c h p e r s o n w a s n o t
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 HC-NIC Page 101 of 106
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,
b u t h e s h o u l d b e a m a n o f
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
d e c i s i o n s , a r e o n e o f J u d g e s ' n a t u r a l
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
t h a t a m a n i s k n o w n b y t h e
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 nation's 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 P
Prosecutor" are not to be construed in the sense of a mere HC-NIC Page 102 of 106
Created On Sat Oct 31 02:44:08 IST 2015 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
H i g h C o u r t c a n n o t i n t e r f e r e i n
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. HC-NIC Page 103 of 106 Created On Sat
Oct 31 02:44:08 IST 2015 (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 HC-NIC Page 104 of 106
allowed. As a sequitur, the appointment of the respondent No.3 as the
Government Pleader−cum−Public 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 Pleader−cum−Public 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
a p p o i n t m e n t o f t h e G o v e r n m e n t P l e a d e r −
cum−Public 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 HC-NIC Page
105 of 106 Created On Sat Oct 31 02:44:08 IST 2015 this order. In view of what has been
stated above, the request is declined.
(J.B.PARDIWALA, J.) chandresh HC-NIC Page 106 of 106 Created On Sat Oct 31 02:44:08 IST 2015

Gujarat HC judgment on appointment of Public Prosecutor

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4 Whether This Case Involves A ...

vs State Of Gujarat & 2 on 30 October, 2015

Gujarat High Court

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 3734 of 2015

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE J.B.PARDIWALA

S.CR.A. NO.3734 OF 2015:

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MITESH AMIN PUBLIC S.CR.A. NO.5372 OF 2015:

MR MIHIR THAKORE SR ADVOCATE WITH MR SALIL M THAKORE, ADVOCATE for the

MR BB NAIK, SR ADVOCATE WITH MR RJ GOSWAMI, ADVOCATE for the MR SHALIN MEHTA

3 The applicants of all the three writ applications are residents of

Indian Kanoon - http://indiankanoon.org/doc/125768843/ 2

in his capacity as the Public Prosecutor as regards his character, integrity

WHAT WAS THE BEST BAKERY CASE ?

4.1 On 7.8.2003, an appeal was filed by the State against the

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where a miscarriage of justice has resulted. It will be not correct to say

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so that ultimate objective i.e. truth is arrived at.

"56. As pithily stated in Jennison v. Backer: (All ER p.1006d)

Indian Kanoon - http://indiankanoon.org/doc/125768843/ 6

Indian Kanoon - http://indiankanoon.org/doc/125768843/ 7

methodology adopted and out−turn of events can

Indian Kanoon - http://indiankanoon.org/doc/125768843/ 8

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5 The above referred paragraphs of the Supreme Court's judgment

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State Government considered the effect of such

STANCE OF THE STATE GOVERNMENT:

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2015 along with all its annexure as Annexure R−II.

"5. Qualifications and eligibility:−

1) No person shall be qualified to be appointed as the Public

(a) he has at least ten years standing as an advocate of the High

(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

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11 I say and submit that as per the advertisement dated 31.05.2013

7 STANCE OF THE RESPONDENT NO.3 i.e. THE APPOINTEE:

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"(a) I respectfully state that a similar petition as Public Interest Litigation

Sr. FIR No. Complainant Sections

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HC-NIC Page 17 of 106 Created On Sat Oct 31 02:44:

17/04/07 Court Vadodara City

Sr. FIR No. Complainant Sections

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3 Application Vedprakash Melumal 107, 120B, 166, 167,

Sr. FIR No. Complainant Sections

HC-NIC Page 18 of 106 Created On Sat Oct 31 02:44:08

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(i) It is most respectfully submitted that I was thereafter appointed as DGP

HC-NIC Page 19 of 106 Created On Sat Oct 31 02:44:08 IST 2015

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absolutely within the four corner of law, which warrants no interference of

(1) 10 years standing as an advocate of the district court of Gujarat,

(r) In the aforesaid background of facts the said petition deserves to be

I most respectfully beg to raise the following preliminary contentions with

I. I state that so far as the ground pertaining to a violation of Section