S.H Kapadia, J.— The question before us is: whether the post of Assistant Public Prosecutors (hereinafter referred to as “APP”) was a civil post under the State of West Bengal in terms of Section 15 of the Administrative Tribunals Act, 1985.
Background facts
2. By notification dated 9-4-1975, the Governor of West Bengal was pleased to appoint the petitioner to act as an APP with effect from the date of his assuming charge in the Court of the Judicial Magistrate, Malda. The notification was issued in exercise of the powers conferred by Section 25(1) of the Code of Criminal Procedure, 1973. The petitioner took charge as APP on 23-4-1975. On 29-1-1977, he was posted in the Court of the Chief Judicial Magistrate at Malda as APP. During this period the petitioner completed two years' probation. As per Rule 4(d) of the Assistant Public Prosecutors (Qualifications, Method of Recruitment and Conditions of Service) Rules, 1974, on 31-3-1978 he was appointed as APP in the Court of the Judicial Magistrate at Malda. However, his services were terminated by the Governor of West Bengal by Order No. 21144-J dated 22-9-1979 which order was communicated to him by the Administrative Magistrate, Malda with Memo No. 1680-J dated 25-9-1979 along with a cheque for Rs 777.70 as one month's salary in lieu of notice as required under Rule 34-B(2) of the West Bengal Service Rules, 1971. Suffice it to state that the petitioner being aggrieved and dissatisfied by the impugned orders filed a writ petition in the High Court. By judgment and order dated 25-2-1999, the learned Single Judge allowed the writ petition and the impugned order of termination of service was set aside. Being aggrieved, the State of West Bengal went in appeal to the Division Bench of the High Court which took the view that the petitioner was not an officer or servant of the court subordinate to the High Court; that the petitioner had worked as APP and as APP he was merely assisting the Court of the Judicial Magistrate on behalf of the State of West Bengal. By the impugned judgment, the Division Bench following the decision of the Apex Court in L. Chandra Kumar v. Union of India (1997) 3 SCC 261, AIR 1997 SC 1125 came to the conclusion that it was not open to the petitioner to directly approach the High Court under Article 226 of the Constitution. The Division Bench further took the view that the learned Single Judge had no jurisdiction to entertain, try and hear the writ petition filed by the petitioner after coming into force of the Administrative Tribunals Act, 1985 and, consequently, the Division Bench transferred the matter to the State Administrative Tribunal for disposal. Being aggrieved by the impugned judgment and order passed by the Division Bench dated 14-1-2003, the petitioner has moved this Court by way of special leave petition under Article 136 of the Constitution.
3. The short point for determination is whether the post of APP was a civil post under Section 15 of the Administrative Tribunals Act, 1985 (hereinafter referred to for the sake of brevity as “the said Act of 1985”).
Arguments
4. The petitioner appeared in person. The main contention before us was that he was an officer or servant of the court subordinate to the High Court. That he was appointed as APP of the Malda court vide notification dated 9-4-1975 and his duty was to assist the court on behalf of the State of West Bengal; that his service conditions were under the control of the District Magistrate, Malda; that his appointing authority was the Judicial Department and his controlling officer was the District Officer, Malda. He contended that the Division Bench of the High Court had erred in holding that he was not an officer of the court subordinate to the High Court. He contended that the Division Bench had erred in transferring the writ petition to the State Administrative Tribunal. He argued that he was appointed by the Governor of West Bengal under Section 25(1) of the Code of Criminal Procedure, 1973 and, consequently, he was posted as APP in the Court of the Judicial Magistrate, Malda. He contended that the High Court had jurisdiction to consider the matter as he was an officer of the court subordinate to the High Court. On facts he contended that there was a violation of Article 311(2) of the Constitution and the alleged violation was required to be examined by the High Court exercising jurisdiction under Article 226 of the Constitution of India. It was argued that the petitioner as APP was an officer of the Court of the Judicial Magistrate which was a court subordinate to the Calcutta High Court and, therefore, the petitioner came within the ambit of the exception in Section 2(c) of the Administrative Tribunals Act, 1985. Accordingly, it was argued that the Division Bench of the High Court erred in transferring the writ petition to the State Administrative Tribunal.
Findings
5. For the reasons mentioned hereinafter, we answer the above issue in the affirmative i.e against the petitioner. We hold that the post of APP was a civil post under the State in terms of Section 15 of the said Act of 1985. We hold that the High Court was right in its conclusion that the dispute lay before the Administrative Tribunal and, consequently, the High Court was right in transferring the writ petition to the State Administrative Tribunal.
Reasons
6. At the outset, we wish to the point out that on 19-3-1974, in exercise of the powers conferred by the proviso to Article 309 of the Constitution, the Governor of West Bengal was pleased to frame the West Bengal Assistant Public Prosecutors (Qualifications, Method of Recruitment and Conditions of Service) Rules, 1974. The said Rules came into force on and from 1-4-1974. Rule 3 of the said Rules, 1974 deals with method of recruitment. Rule 3 inter alia states that APP shall be a Law Officer on the establishment of Legal Remembrancer and he shall be appointed by the State Government by selection from practising lawyers of the required standing. Under Rule 4 conditions of service of APP have been stipulated. Rule 4 states that the APP shall be whole-time government servant appointed for conducting prosecution in the Court of Magistrates. It further states that APPs shall be under the immediate control of the respective Divisional Magistrates subject to the joint control of the District Magistrate. Under Rule 4(d) it has been further stipulated that persons appointed substantively to the permanent posts of APPs shall undergo probation for two years. Under Rule 4(e) it is further stipulated that the APPs shall in the matter of pay, allowances, leave, retirement, pension, gratuity etc. be governed by the Rules for the time being in force and generally applicable to persons holding appointments under the State Government. A bare reading of Rule 3 and Rule 4 of the West Bengal Assistant Public Prosecutors (Qualifications, Method of Recruitment and Conditions of Service) Rules, 1974 indicates that the post of APP is a civil post, and consequently, all service matters concerning such posts shall fall within the jurisdiction, powers and authority of the State Administrative Tribunals under Section 15 of the Administrative Tribunals Act, 1985. Further, the order of termination passed in the present matter also indicates that the services of the petitioner came to be terminated as APP, Malda under Rule 6 of the West Bengal Services (Appointment, Probation and Confirmation) Rules, 1979 on payment of one month's salary in lieu of notice. This also indicates that the post of APP was a civil post under the State in terms of Section 15(1) of the Administrative Tribunals Act, 1985. At this point, we may mention that the West Bengal Administrative Tribunal has been established under Section 4(2) of the Administrative Tribunals Act, 1985, which is also indicated by the West Bengal Administrative Tribunal (Procedure) Rules, 1994. Hence, the present dispute regarding termination of service of APP came within the jurisdiction, power and authority of the Tribunal under Section 15 of the Administrative Tribunals Act, 1985.
7. Lastly, it may be mentioned that a radical change was introduced in the constitutional law relating to the services by the Constitution (Forty-second) Amendment Act, 1976, which inserted into the Constitution, Article 323-A, to take out the adjudication of disputes relating to conditions of service of the public services of the Union and of the States from the civil courts and the High Courts and to place it before an Administrative Tribunal for the Union or of a State. In order to come under Article 323-A(1), the employee must hold his employment under the Union or under a State Government. In the present case, we find that the petitioner held his employment under the State Government of West Bengal. Therefore, the learned Single Judge of the High Court had no jurisdiction to entertain, try and dispose of this matter under Article 226 of the Constitution. Hence, the Division Bench of the High Court was right in transferring the matter to the State Administrative Tribunal. We do not wish to express any opinion on merits of this case.
8. For the aforesaid facts stated, there is no merit in the special leave petition and the same is consequently dismissed. No order as to costs.