Man Singh Achale vs The State Of Madhya Pradesh

Petitioner has filed this writ petition under Article 226 of the Constitution of India challenging impugned order dated 15.3.2013 filed as Annexure P/8. By said order representation filed by the petitioner for promotion to the post of Director was dismissed on grounds that petitioner has not worked as an Advocate for a period of 10 years as laid down in Section 25A Cr.P.C. (Amended Act, 2005).

Learned counsel appearing for the petitioner placed reliance on Section 24(9) of Cr.P.C. which lays down that period during which a person has been in practice as a Pleader or has rendered service as Public Prosecutor or Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer shall be taken into account for purpose of appointment to the post of Public Prosecutor. It is submitted that petitioner has worked for more than 10 years as Public Prosecutor, therefore, said period is to be taken into account for considering him for promotion to the post of Director. He also placed reliance on the judgment dated 21.04.2011 passed in W.P.No.5851/2006 in case of K.B. Sharma Vs. State of M.P. and another. Respondents had committed an error in rejecting the case of petitioner on the ground that petitioner is not having requisite qualification of practice of 10 years as Public Prosecutor in accordance with Section 25A of Amended Act. Counsel for petitioner further stated that Section 25A of Amendment Act, 2005 is to be read along with Section 24(9) of the Code of Criminal Procedure and services or experience of the Prosecutor, Additional Public Prosecutor, or Assistant Public Prosecutor shall be taken into account to satisfy the stipulation of Section 25A of the Cr.P.C.

Govt. Advocate for the State submitted that petitioner was working as Joint Director and he was not having qualification as laid down in Section 25A, therefore, case of petitioner has rightly been rejected.

Heard learned counsel for the parties.

Experience which Prosecutor, Assistant Public Prosecutor, Additional Public Prosecutor has earned as Prosecuting Officer is taken into account for appointment to the post of Public Prosecutor as per Section 24(9) of the Act.

6 . Madhya Pradesh Public Prosecution (Gazetted) Services Recruitment Rules, 1991 (hereinafter referred to as 'Recruitment Rules, 1991), lay down criteria for promotion. As per Rule 5 of the Recruitment Rules, 1991, there is one post of Director of Prosecution, which is a Class-I post. Appointment on said post is to be made by 100% promotion. Organizational set-up of Directorate of Prosecution is laid down in Schedule I. As per said Schedule, there will be five categories of Officers in hierarchy i.e. Director of Prosecution Joint Director of Prosecution Deputy Director of Prosecution/ Public Prosecutors District Public Prosecution Officer/ Additional District Public Prosecution Officer Assistant District Public Prosecution Officer/ Assistant Director Administrative Officers (Ministerial)

Qualification required for recruitment to aforesaid posts has been mentioned in Schedule II and Schedule IV, which is prepared under Rule 6 and Rule 14. Said qualification is reproduced as under : -

On considering aforesaid rules, it is found that there is no channel of promotion mentioned in Schedule IV prepared under Rule 14 from post of Deputy Director Prosecution to the post of Director Prosecution. However, in Schedule II, Rule 6, it is mentioned that recruitment to the post of Director of Prosecution is to be made by 100% promotion. Amended provision of Section 25A of Cr.P.C lays down that Directorate of Prosecution is to be established by State Govt. and person who has 10 years of experience as an Advocate shall be appointed as Director of Prosecution with concurrence of Chief Justice. Schedule IV Rule 14 does not provide any channel of promotion from the post of Joint Director to the Post of Director. Schedule II describes that recruitment to post of Director is to be made by 100% promotion but no promotional channel is prescribed under Rule 14. In Schedule II, it is also mentioned that if no suitable officer is available in the cadre, then IAS/IPS/Officers from Higher Judicial Services be appointed as Director of Prosecution on deputation.

There is anomaly in Schedule II prepared under Rule 6 and Schedule IV prepared under Rule 14. Therefore, Law and Legislative Department is directed to look into this anomaly and prescribe promotional channel from the post of Joint Director to the post of Director in Schedule IV under Rule 14. If Law and Legislative Department takes decision for direct recruitment by appointment on said post then Schedule II under Rule 6 be amended which lays down that Director of Prosecution is 100% promotional post. Anomaly be removed and action be taken by Law and Legislative Department by correcting Rules of 1991 which are made prior to amended rule of Code of Criminal Procedure, 2005 and Section 20 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

1 0 . Petitioner has taken shelter of decision passed in case of K.B. Sharma Vs. State of Madhya Pradesh (supra), wherein Court issued directions to hold review DPC to consider suitability of petitioner for promotion to the post of Director. Court taking into account Schedule II prepared under Rule 6 and 24(9) held that post is to be filled up by promotion from inside candidate and when no eligible candidate is available only then person from outside cadre like IAS, IPS or higher judicial service is to be appointed on said post. Petitioner therein was senior most Joint Director at the relevant time and post of Director fell vacant. Petitioner was eligible for appointment on said post, therefore, aforesaid direction was issued. On considering aforesaid judgment, it is found that Court did not take into account Schedule IV prepared under Rule 14, in which there is no promotional channel from post of Joint Director to the post of Director Prosecution, therefore, said judgment will be of no help to petitioner.

Since no promotional post is prescribed for the post of Director in Schedule IV Rule 14 and there is anomaly in Recruitment Rules, 1991 regarding method of recruitment on the post of Director, therefore at present no relief can be granted to petitioner. State Govt. is directed to correct anomaly and take decision whether Director is promotional post of Dy. Director or not and whether said post is to be filled up by promotion or by direct recruitment.

Petitioner will be at liberty to file representation if State Govt. takes decision by correcting rules that post is to be filed up by promotion.

Writ aforesaid, writ petition filed by petitioner is disposed of.

A copy of this order be sent to the Hon’ble Law Minister, Government of Madhya Pradesh; the Hon’ble Home Minister, Government of Madhya Pradesh; the Principal Secretary, Law and Legislative Affairs Department, Government of Madhya Pradesh; the Principal Secretary of Home Department, Government of Madhya Pradesh, for information and necessary action.