Sh. Tanvir Ahmed Mir vs Govt Of Nct Of Delhi And Ors. on 12 July, 2004

Delhi High Court
Sh. Tanvir Ahmed Mir vs Govt Of Nct Of Delhi And Ors. on 12 July, 2004
Equivalent citations: 2004 CriLJ 3777, 112 (2004) DLT 631, 2004 (75) DRJ 644
Author: B D Ahmed
Bench: B D Ahmed


JUDGMENT

Badar Durrez Ahmed, J.

1. This writ petition essentially seeks the issuance of a writ of quo warranto in respect of the respondent No.3’s authority to hold the office of Standing Counsel (Criminal) for the Government of NCT of Delhi for this High Court. The petitioner is also an advocate and at the time of filing of the petition he had a standing of seven years.

2. According to the petitioner, the office of the Standing Counsel (Criminal) is a public office and the requisite qualifications and prescribed eligibility criteria for appointment to such office were duly notified at the time when the applications were invited from eligible persons for, inter alia, the said post vide letter dated 30th December, 1998 issued by the Secretary (Law, Justice & C.A.), Government of NCT of Delhi to, inter alia, the Registrar High Court of Delhi under the subject–appointments of Government counsel on various panels of the Government advocates for Delhi Government. Annexure-I thereto prescribed the eligibility conditions. At S.No. 1 against the designation — Standing Counsel (Criminal) — the qualification, experience and age that was prescribed was as under:-

“Qualification, experience and age: Law Graduate from a recognized university or bar at Law with 15 years practice in the High Court on Civil and Criminal side with high reputation, age Minimum 45 years, maximum 60 years (Retirement age 65 years)”

Insofar as the Additional Standing Counsel (Criminal) was concerned, the minimum age requirement was 40 years and a minimum standing of 10 years at the bar in the High Court.

3. The respondent No.3, whose date of birth was 28.06.1961 stood appointed as Standing Counsel (Criminal) w.e.f. 08.08.2001 by virtue of notification No.5/1/91-Lit which reads as under:-

“NOTIFICATION

No.F-5(1)/91-Lit.- In exercise of the powers conferred by sub-section (1) of Section 24 of the Code of Criminal Procedure, 1973, the Lieutenant Governor of the National Capital Territory of Delhi, after consultation with the Delhi High Court, is pleased to appoint Ms, Mukta Gupta Advocate as Public Prosecutor Standing Counsel (Criminal), for conducting any prosecution, appeal or other proceedings in the High Court of Delhi initially for a period of two years.

The appointment will be subject to such terms and conditions as may be prescribed from time to time.

This notification shall come into force with immediate effect.

This Government’s all previous notifications issued in this behalf will, from the date of the commencement of this Notification, stand superseded.

  By order and in the name of the    Lt. Governor of the National
 

  Capital Territory of Delhi. 

  (Anoop Kumar Mendiratta) 

               Joint Secretary (Law, Justice & L.A.) 

  Govt. of NCT of Delhi. 

No.5/1/91-Lit. Dated the 8th August, 2001."
 

4. The term of two years was to expire on 07.08.2003. By another notification dated 06.08.2003, the appointment of respondent No.3 as Public Prosecutor/Standing Counsel (Criminal) was extended for a further period of one year w.e.f. 08.08.2003 to 07.08.2004. By virtue of this notification, the respondent No.3 continues to occupy the said pubic office of Standing Counsel (Criminal). It is pertinent to note that during the first two year period when the respondent No.2 was initially appointed as the Standing Counsel (Criminal) by virtue of the notification dated 08.08.2001, there was no challenge thereto. The present writ petition which has been filed on 17.09.2003 has so been filed only after the issuance of the second notification dated 06.08.2003 extending the term of appointment of the respondent No.3 as Standing Counsel (Criminal) by a further period of one year up to 07.08.2004. The grievance of the petitioner is that the respondent No.3 was not qualified to be appointed as the Standing Counsel (Criminal) as she was below the age prescribed and also did not possess the requisite standing at the Bar. The respondent No.3, who was born on 28.06.1961 was forty years of age when she was first appointed as the Standing Counsel (Criminal) by notification dated 08.08.2001. Even on 06.08.2003, when the second notification extended her term of appointment, she was only 42 years of age. In fact, she would be under 45 years of age throughout the period of her extended appointment, i.e., up to 07.08.2004. Accordingly, it was contended that in terms of the eligibility criteria prescribed in the Annexure to the said letter dated 30.12.1998 itself, the respondent No.3 was clearly ineligible for being appointed as Standing Counsel (Criminal) and, this being the case, her continuing as Standing Counsel (Criminal) was and is without the authority of law.

5. Although it was also alleged that the respondent No.3 did not have the requisite standing of 15 years in the High Court, this allegation is ex-facie untenable as the respondent No.3 was enrolled as an advocate in 1984 and obviously on the date of her appointment as Standing Counsel (Criminal), she would have had more than 15 years of practice in the High Court.

6. Along with the petition, the petitioner has annexed, as Annexure-A, the purported rules/guidelines for the constitution of the panel of Government counsel for conducting cases for and on behalf of Delhi Administration and the scheme for conducting work under Delhi Administration. Apparently, these documents have been downloaded from the website of the Delhi Government–http:/law.delhigovt.nic.in/ rules.html. The terms and conditions of appointment of Government counsel have been set out in these guidelines and the eligibility condition requires that the Standing Counsel (Criminal) must possess the following qualification, experience and age:-

“Law Graduates of a recognized University of Bar-at-Law, with minimum 15 years practice in the High Court on Civil & Criminal side with high reputation, Age Minimum 45 years, maximum 60 years (Retirement age 65 years)”

7. According to the learned counsel for the petitioner, in December 1998 when applications were invited from eligible persons for appointment as, inter alia, the Standing Counsel (Criminal) and Additional Standing Counsel (Criminal), the petitioner did not apply as he did not satisfy the eligibility condition of being at least 45 years and having a minimum practice of 15 years in the High Court. He was thus shut out from applying and, therefore, the respondent No.3 must also be prevented from holding the said office. This argument does not hold any water on two counts. Firstly, in a petition seeking a writ of quo warranto it is only the incumbent’s authority to hold the public office which is under scrutiny, another individual’s competing right is of no consequence. Secondly, on facts also, there is no foundation for the argument as the respondent No.3 also had not responded to this invitation. In fact, one Shri K.C. Mittal was appointed as the Standing Counsel (Criminal) in August 1999 for one year and he demitted office in August 2000. The respondent No.3 was appointed as Additional Standing Counsel (Criminal) w.e.f. 08.08.2000 for one year. Insofar as the appointment of the Standing Counsel (Criminal) is concerned which was made in August 2001, no applications were invited and the procedure prescribed in the said rules and guidelines Annexure-‘A’ to the writ petition were not followed.

8. Mr Gopal Subramanium, the learned Sr Advocate, who appeared on behalf of the Respondent No.3, submitted, and rightly so, that three conditions must be satisfied before a writ of quo warranto could be issued. The conditions being:- 1) the office must be a public office; 2) the occupant must occupy the office without the authority of law; and 3) the occupant must be barred from holding that office on account of any other disqualification. According to Mr Subramanium, insofar as the first condition was concerned, there is no dispute, as it is admitted that the office of the Standing Counsel (Criminal) which is the same as that of a Public Prosecutor for the High Court, is a public office. Insofar as condition No.3 is concerned, no “other disqualification” is pleaded and, therefore, we are left with the consideration of condition No.2 alone. The office of the public prosecutor is a creature of the Code of Criminal Procedure, 1973 and in particular of Section 24 thereof. Therefore, the occupant of that office must conform to the conditions of eligibility mentioned in Section 24 itself. The relevant provisions are Section 24(1) and 24(7) which read as under:-

“24.Public Prosecutors.- (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutor, 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.

 xxxx      xxxx      xxxx      xxxx      xxxx      xxxx     xxxx     
 

 (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.
 xxxx      xxxx      xxxx      xxxx      xxxx     xxxx     xxxx" 
 

9. Therefore, the questions that have to be answered are: What are the qualifications or eligibility conditions prescribed by Section 24 of the Code of Criminal Procedure, 1973? Whether these have been complied with? Section 24(1) of the Code of requires that the Public Prosecutor for a High Court must be appointed after consultation with the High Court. In this case, the High has been consulted1. Therefore, the requirement of the consultation with the High Court with regard to the appointment of the respondent No.3 to the office of Public Prosecutor/Standing Counsel (Criminal) for the High Court of Delhi has been complied with. Section 24(7) stipulates the eligibility criteria for appointment as a Public Prosecutor. The only condition stipulated is that a person, who is so appointed, must be in practice as an advocate for not less than seven years. Clearly, the respondent No.3, on the dates on which she was appointed as Additional Standing Counsel (Criminal) and Standing Counsel (Criminal) had more than seven years practice as an advocate and, therefore, in terms of the eligibility criteria set out under the Code of Criminal Procedure, 1973, she was qualified. Thus, according to Mr Subramanium, both the conditions, (a) of consultation with the High Court and; (b) of having a minimum practice of seven years as an advocate stood complied with. Therefore, there was no question of any writ of quo warranto being issued challenging the appointment and continuance of the respondent No.3 in the public office of Public Prosecutor/Standing Counsel (Criminal) for the Delhi High Court.

10. It was further submitted that the 30.12.1998 invitation for applications was a one time affair: a departure from the past and future practice. The appointment (of Mr K.C. Mittal) pursuant to that invitation had worked itself out and, therefore, the letter of 30.12.1998 was of no further relevance. It was also submitted that any administrative instruction stipulating a minimum age of 45 years or minimum standing of 15 years at the bar, as indicated by the petitioner, would be of no effect as administrative instructions cannot override the statutory provisions. Moreover, the guidelines which had earlier been issued on 26.02.1992 prescribing the minimum, maximum and retirement ages of the Government counsel had been rescinded by the Cabinet in its meeting held on 27.05.1994 vide Cabinet Decision No.77 to the following effect:-

“The council approved the proposal of the department in so far as mode of selection of the Standing Counsel/Additional Standing Counsel (Civil), panel Lawyers (Civil) for the High Court, Public Counsel and Additional Public Counsel for the district Courts, Panel Lawyers for Sales Tax Tribunal, High Court (in sales tax matters only) and the Central Administrative Tribunal at New Delhi and also rescinding part of the rules/guidelines dated 26.02.1992 in so far as they relate to the prescribing of minimum, maximum and retirement ages of the said categories of the Govt. Counsels.”

11. Mr Subramanium then relied upon the following three decisions:-

i) State of UP v. U.P. State Law Officers: (Para 15-18);

ii) Sukhdev Singh v. Bhagat Ram: (Para 21);

iii) State of Mysore v. Govinda Rao: .

The first case, i.e., of State of U.P. (supra) was cited to show that a lawyer of the Government or a public body is not its employee but is a professional prosecutor engaged to do specified work. Accordingly, the Government has to select meritorious persons and the mode of appointment of such lawyers has to be in conformity with this object. The decision in the case of Sukhdev Singh (supra), was cited by Mr Subramanium to show that the administrative instructions which were being referred to by the petitioner (though terminated in May 1994), in any event have no force of law. In Sukh Dev Singh’s case (supra), a Constitution Bench of the Supreme Court specifically held that the statutory rules/regulations could only be framed after reciting the source of power. No rules have been framed under Section 24 of the Code of Criminal Procedure, 1973 and any administrative instruction, which is in conflict with the provisions of Section 24 thereof, would be illegal and void ab initio and would not be enforceable. The third decision, i.e., of State of Mysore (supra), was relied upon by Mr Subramanium to demonstrate the conditions which have to be satisfied before a writ of quo warranto could be issued. In that case a Constitution Bench of the Supreme Court held that (at page 580):-

“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.”

12. Mr Shali, who appeared on behalf of the respondents 1 & 2 adopted Mr Subramanium’s arguments. Mr K.T. Anantharaman placed reliance on the following cases in support of the petitioner’s contention that this was a fit case for the issuance of a writ of quo warranto:-

“i) Km Srilekha Vidyarthi etc.etc. v. State of U.P. and Others: (para 9);

ii) Prof. D.P. Pathak and Another v. State of Punjab & Others: SLR 1980 (1) 346 (at 351/352);

iii) Harpal Singh Chauhan and others v. State of U.P.: (para 16 at 2442);

iv) Dr Amarjit Singh Ahluwalia v. State of Punjab and Others: 1975 SC 984 (paras 8 & 9 at 989 & 990);

v) State of Maharashtra & Another v. Sanjay Thakre & Others: (1995) Supp 2 SCC 407 (Para 7 at 410);

vi) Union of India v. K.P. Joseph and others: 1973 SC 303 (paras 8 & 9 at 304 & 305);

vii) B.S. Minhas v. Indian Statistical Institute & Others: (at pages 409 to 413);

viii) Ratan Lal Bohra v. State of Rajasthan and another: (para 10 page 3077)”

All these cases referred to are of no help to the case of the petitioner.

13. Quo warranto is essentially a judicial remedy available against a usurper of a public office. Quo warranto (by what authority) is a question which is put to the pretender or a person occupying a public office to show “by what warrant” is he holding such office. If the person to whom the question is put is able to satisfy the Court that he holds the office under the authority of law, then an action for quo warranto is to be dismissed. On the other hand, if the answer is unsatisfactory and the person occupying the public office is unable to demonstrate the authority under which he is so occupying the office, then the Court shall issue a writ to oust him from that office. In this case, it is clear that the office of the Standing Counsel (Criminal), which is the same thing as the Public Prosecutor, is a public office. It is also clear that Public Prosecutors are to be appointed in terms of Section 24 of the Code of Criminal Procedure, 1973. Sub-sections (1) and (7) of Section 24 merely require that before a person is appointed as a Public Prosecutor for a particular High Court, that High Court must be consulted and, secondly, that such a person must have at least seven years of practice as an advocate. Section 24 does not prescribe the framing of any further rules. And in fact, no rules have been framed under Section 24. It is well-settled that administrative instructions cannot override and contradict clear-cut statutory provisions. When the statute prescribes a minimum eligibility criteria, an administrative instruction cannot prescribe a different minimum. If it does, it would be in conflict with the statutory provisions and clearly the statute would override. The entire case of the petitioner is based on the rules and guidelines which are merely administrative instructions. These rules and guidelines insofar as they prescribe a minimum age criteria, have in any event been rescinded by the said Cabinet Decision in 1994 and are no longer extant. Even if they were, they would be in direct conflict with the express and clear provisions of Section 24 of the Code of Criminal Procedure, 1973 and, therefore, would be of no effect. If these administrative instructions are to have no effect in law, then the petitioner has no case inasmuch as the eligibility conditions specified in Section 24 of the Code of Criminal Procedure, 1973 have been complied with.

14. In view of the foregoing discussion, the respondent No.3 has been able to satisfactorily answer the question– “by what authority” does she hold and occupy the public office of Standing Counsel (Criminal)/Public Prosecutor? She was appointed after consultation with the High Court. Her appointment was duly notified. She had more than seven years practice as an advocate and, therefore, was fully entitled to hold and occupy the office of Standing Counsel (Criminal)/Public Prosecutor for the High Court of Delhi.

Accordingly, the writ petition is dismissed. There shall be no orders as to costs.

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