Libertatem Magazine

The High Court of Gauhati Acknowledges Problem in Appointment of Legal Officials

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A writ petition has been filed by several petitioners upon the improper transfer of their posts as Additional Public Prosecutor to the respondents

Facts of the Case 

The petitioners have filed a complaint stating that the post held by them was transferred to the respondents. By notification dated 10.11.2017 issued by the Legal Remembrancer- cum- Commissioner & Secretary to the Govt. of Assam, Judicial Department. The posts held by them were of the Additional Public Prosecutor which makes it an issue of public importance. The main two issues acknowledged by the courts are whether the case is maintainable or not as the respondent stated all the parties for the petitioner are not aggrieved by the appointment of respondents. Another issue covered by the court, in this case, is the nature of the office, the post of the additional public prosecutor, and the procedure of its appointments.  The procedure of the appointment of Public Prosecutor, Additional Public Prosecutor, and Assistant Public Prosecutor.

Arguments of the Petitioner

The learned senior counsel for the petitioners submitted that the mandatory provision of Section 24(4) Cr.P.C  was followed. This provision included consultation with the District Judge before the appointment of private Respondents for the post of petitioners. Furthermore learned counsel stated that the impugned panellist as sent by respondent no.2 to respondent no.1 was in variance with the list prepared and sent by respondent no.3 to respondent no.2. The counsel proposed various cases to strengthen their claims.

Arguments of the Respondent

The learned senior counsel for the respondent nos. 4 to 7 and 9 has Questioned the viability of this writ. presented that the applicants had no indefeasible as well as enforceable right. Furthermore, counsel stated that since petitioner no.s 1,6 and 8 are not aggrieved by the appointment of the respondent. So the petition filed is not maintainable. The learned counsel for respondent no.8 has reiterated the submissions made by the learned senior counsel for the respondent nos. 4 to 7 and 9.

Ratio of the Court

On the closure of consultation, the Court stated that as per the provision of Sub-Section (4) of Section 24 of the Cr.P.C., some sort of consultation appears to be an ingrained pre-condition. The court even further stated that it is open to judicial review. It stated so to review the appointment of the post of additional public prosecutor is by article 14 or not. The court ordered that respondent no.2 had no discussions with respondent no.3, which violates the provisions of Section 24(4) of the Criminal Procedure Code. The petitioners have no right to be appointed Assistant Public Prosecutor and have no rights vested on the extension of their term. Hence allowing the petition to this extent and indications.

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