Jelna T.P. v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 3RD DAY OF APRIL 2018 / 13TH CHAITHRA, 1940 WP(C).No. 2275 of 2018** **PETITIONER(S) -------------** **JELNA T.P., AGED 42 YEARS, D/O. T. P. NARAYANAN, "SYAMANTAK". KANJIRA, P.O. THOTTADA, KANNUR.** **BY ADVS.SRI.M.RAMESH CHANDER(SR) SMT.K.A.SANJEETHA SRI.BONNY BENNY** **RESPONDENT(S): -------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO HOME DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001.** **2. DISTRICT COLLECTOR, KANNUR-670001. 3. BEENA KALIYATH, B. SC., LLB., ADVOCATE, YAMNA NIVAS, ERANHOLI P.O., THALASSERY-670107.** **R1 & R2 BY GOVERNMENT PLEADER SRI.SUMAN CHAKRAVARTHY, (SR) BY GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH R3 BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.GEORGE MATHEWS SRI.T.T.RAKESH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-03-2018, THE COURT ON 03.04.2018 DELIVERED THE FOLLOWING:** **TS** ## **WP(C).No. 2275 of 2018 (H)** ## **--------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS ----------------------** - **EXHIBIT P1 PHOTOSTAT COPY OF THE JUDGMENT IN WPC NO. 29158/2010 DATED 24.11.2010. EXHIBIT P2 PHOTOSTAT COPY OF THE NOTIFICATION WHICH CAME IN MALAYALA MANORAMA DAILY DATED 28.6.2017. EXHIBIT P3 PHOTOSTAT COPY OF THE BIO-DATA.** - **EXHIBIT P3(A) PHOTOSTAT COPY OF CBSE MARK LIST. EXHIBIT P3(B) PHOTOSTAT COPY OF ENROLLMENT CERTIFICATE. EXHIBIT P3(C) PHOTOSTAT COPY OF CERTIFICATE ISSUED BY KANNUR BAR ASSOCIATION.** - **EXHIBIT P3(D) PHOTOSTAT COPY OF CERTIFICATE FROM DIRECTOR OF PROSECUTION (ADMN.) DATED 17.3.2017.** - **EXHIBIT P3(E) PHOTOSTAT COPY OF CERTIFICATE FROM PRINCIPAL MAGISTRATE JUVENILE JUSTICES COURT, THALASSERY. EXHIBIT P4 PHOTOSTAT COPY OF THE LIST SENT BY THE DISTRICT JUDGE TO THE 1ST RESPONDENT WHICH THE PETITIONER OBTAINED UNDER THE RIGHT TO INFORMATION ACT. EXHIBIT P5 PHOTOSTAT COPY OF THE ORDER G.O. (RT.) NO. 166/2018/HOME DATED 16.1.2018. EXHIBIT P6 PHOTOSTAT COPY OF THE APPLICATION SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT DATED 27.6.2017. EXHIBIT P6(A) PHOTOSTAT COPY OF THE BIO-DATA OF THE 3RD RESPONDENT.** - **EXHIBIT P6(B) PHOTOSTAT COPY OF THE CERTIFICATE ISSUED BY DISTRICT COURT BAR ASSOCIATION, THALASSERY DATED 20.6.2017 TO THE 3RD RESPONDENT. EXHIBIT P6(C) PHOTOSTAT COPY OF THE ENROLLMENT CERTIFICATE OF THE 3RD RESPONDENT. EXHIBIT P6(D) PHOTOSTAT COPY OF THE CERTIFICATE TO PROVE THE DATE OF BIRTH OF THE 3RD RESPONDENT.** ## **TS** **WP(C).No. 2275 of 2018 (H) --------------------------** ## **APPENDIX** ## **RESPONDENT(S)' EXHIBITS** ## **-----------------------** **EXHIBIT R3(A):- A TRUE COPY OF THE CERTIFICATE ISSUED BY ADVOCATE V.JAYAKRISHNAN DATED 03.2.2018. EXHIBIT R3(B):- A LIST OF SESSIONS CASES IN WHICH THE PETITIONER HAVE APPEARED FOR THE ACCUSED AND CONDUCTED TRIAL. EXHIBIT R3(C):- A TRUE COPY OF THE JOINING CERTIFICATE DATED 25.1.2018.** **/TRUE COPY/** **PS TO JUDGE** **TS 05/04/2018** ## **P.V.ASHA, J.** ## **W.P.(C) No.2275 of 2018** ## **Dated this the 3[rd] day of April, 2018** ## **JUDGMENT** The appointment of Special Public Prosecutor in POCSO courts in Kannur District is under challenge in this writ petition. 2. The petitioner is a practising Advocate at Kannur and Thalassery. She submitted application for appointment as Special Public Prosecutor to conduct cases coming under Protection of Children from Sexual Offences Act, 2012 (POCSO Act) pursuant to Ext.P2 notification issued on 28.6.2017. The petitioner submitted her application before the District Collector along with her biodata and all the relevant certificates, including certificates regarding her conduct and performance of cases as contained in Ext.P3 series. The petitioner submits that the District Collector forwarded the application to the District Judge and the District Judge, on being convinced of her ability and experience included her as sl.no.1 in Ext.P4 list. However By Ext.P5 order, Government appointed the 3[rd] respondent who was No.2 in Ext.P4 list. Producing the application submitted by the 3[rd] respondent along with certificates attached to it the petitioner submits that she is the most competent person who should have been appointed in preference to the 3[rd] respondent. 3. The petitioner submits that she was rank No.2 in the rank W.P.(C) No.2275/18 **==> picture [14 x 9] intentionally omitted <==** list for appointment to the post of Assistant Public Prosecutor Gr.II, for appointment on provisional basis. She worked as Asst.Public Prosecutor Gr.II on a provisional basis, in the Sub Divisional Magistrate Court, Thalassery for the period from 4.3.2011 to 4.3.2017 with additional charge of various 1[st] Class Magistrates Courts in Kannur District. She was put in full additional charge of Juvenile Justice Court, Thalassery from 17.12.2012 to 4.3.2017. She conducted various cases under the POCSO Act and attended various training programs conducted by the Director of Prosecutions, Erankulam between 4.3.2011 and 4.3.2017. She acted as a Translator also at times at the request of the presiding officers as she is well versed with Hindi. She was in charge of all the POCSO cases which were pending before the Court. Out of the 13 cases, 4 were disposed of while she was posted there. She claims to have received rich encomiums from the presiding officers and alleges that the 3[rd] respondent does not have any such qualification or experience. Relying on the judgment of Apex Court in ## _**State of Punjab & anr. v. Brijeshwar Singh Chachal & anr. :**_ _**(2016) 6 SCC 1**_ petitioner alleges that appointment of the 3[rd] respondent is vitiated by political consideration giving least consideration to merit. 4. Respondents 1 and 2 as well the 3[rd] respondent have filed W.P.(C) No.2275/18 **==> picture [14 x 9] intentionally omitted <==** separate counter affidavits. In the counter affidavit of the 1[st] respondent it is stated that the State Government had issued a communication to the District Collectors directing them to furnish a panel of qualified Advocates from each Districts in consultation with the District Judges, for appointment as Special Public Prosecutors under the POCSO Act with direction to comply with provisions of section of 24(4) of Cr.PC. It is stated that pending the framing of the POCSO Rules, Government had issued GO(Rt) 2117/2017/Home dated 8.8.2017, according to which, appointment of Special Public Prosecutors in the special courts under the POCSO Act would be done complying with and adopting Section 24 (4) of Cr.P. C and Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978. The District Collectors of the respective Districts prepared panels in compliance with Sec 24(4) of Cr.PC in consultation with the District and Sessions Judges concerned, for appointment of Special Public Prosecutors. It is pointed out that the process adopted for the selection is approved by this Court in the judgment dated 3.11.2017 in W.P.(C) No.22255 of 2017. According to Government the appointment is made strictly in accordance with rules. The appointment of the 3[rd] respondent was from a panel forwarded by the District Collector in consultation with the District Judge concerned W.P.(C) No.2275/18 **==> picture [14 x 9] intentionally omitted <==** and not from a rank list. The counter affidavit also refers to the circumstances which led to the appointment of Special Public Prosecutors. It is stated that originally the additional Government Pleaders and Public Prosecutors were appointed as Special Public Prosecutors in the Additional District and Sessions courts for conducting cases under the POCSO Act. They were originally appointed under section 24(4) of Cr.PC read with Kerala Government Law Officers Rules, 1978. On 13.1.2016 a notification was issued clarifying that the Additional Government Pleaders and Public Prosecutors were also appointed as Special Public Prosecutors to deal with cases under POCSO Act. When steps were taken to terminate the services of the Additional Government Pleaders and Public Prosecutors and to make new appointments, the incumbent of the posts challenged the same before the Kerala Administrative Tribunal. The O.A filed by them were dismissed, which was upheld by this Court in the judgment in the OP(KAT) filed by them. In the meanwhile certain Additional Government Pleaders and Public Prosecutors, who were also appointed as Special Prosecutors under the POCSO Act, filed writ petitions challenging the proceedings for termination. This Court while approving the action of Government in terminating their services as Additional Government Pleaders and Public Prosecutors, directed that W.P.(C) No.2275/18 :5: their services as Special Prosecutors under the POCSO Act shall not be terminated until appointments are made under the rules framed under the POCSO Act. W.A.No.2264 of 2016 filed by the State against that was disposed of by judgment dated 01.12.2016 in which this Court observed that it was open to State Government to appoint duly qualified Advocates as Special Public Prosecutors under the POCSO Act exclusively. Steps for fresh appointment of Special Public prosecutors were initiated thereafter. 5. In the counter affidavit filed by the 3[rd] respondent , it is stated that her appointment was strictly in accordance with Sec.24 of Cr.PC on being satisfied of her ability and competence. According to her, the appointment was made on the basis of a reasonable process of selection in accordance with the spirit of the statute and public interest. According to her, Sec.24 of the Cr.PC prescribes such procedure for appointment of Public Prosecutors for which panels are required to be prepared by the District Magistrate in consultation with the Sessions Judge. There is a clear prohibition under Sec.5 that no person shall be appointed by the State Government as Public Prosecutor or the Additional Public Prosecutor, unless his name appears in the panel prepared under section 24(4). The name of a person is included in the panel only after the Sessions Judge and the W.P.(C) No.2275/18 :6: District Magistrate are satisfied of the competence of the person for appointment as Public Prosecutor. It is also stated that Government need not record any reason in support of their conclusion. State Government can appoint one among the panel to the post of Public Prosecutor. According to her, there is no infirmity in the process by which she was selected and appointed and therefore there is no reason to interfere with her selection and appointment. It is also her case that the Sessions Judge while recommending the names is not conducting any selection process or making a comparative evaluation of the merits of the candidates and therefore State is free to make appointment from the list of persons recommended by the Sessions Judge. It is her further case that she is having 16 years of experience in conducting session's trials including the cases under the POCSO Act; whereas petitioner does not have any such experience in conducting session's case as she was practicing only in the courts at Kannur. 6. The petitioner has filed a reply affidavit asserting that Ext.P4 is a select list in which the District Judge had assigned her rank no.1 on the basis of her merit. It is also stated that no reason is stated for appointing the 3[rd] respondent and the appointment is vitiated by extraneous considerations and it is contrary to the dictum laid down by the Apex Court as well as the recommendation of the Law Commission. W.P.(C) No.2275/18 **==> picture [14 x 9] intentionally omitted <==** 7. I heard Sri. Ramesh Chander, the learned Senior Counsel for the petitioner, Sri. Gracious Kuriakose, the learned Counsel for the 3[rd] respondent and Smt. Mary Beena Joseph, the learned Senior Government Pleader for the official respondents and considered the rival contentions. 8. The question to be considered is whether this Court should go into the correctness of the decision of the 1[st] respondent in appointing the 3[rd] respondent; whether this Court can assess/re-assess the inter-se merit of the candidates, on the basis of the materials furnished in the writ petition when Government have already found the 3[rd] respondent as suitable for appointment. 9. There is no dispute as to the qualification or eligibility of the 3[rd] respondent for appointment. The date of enrollment of the petitioner is 01.10.2000 and that of the 3[rd] respondent is 27.05.2001. The date of birth of the petitioner is in 1975 and that of the 3[rd] respondent is in 1966. Petitioner has produced Ext.P3 series of certificates which furnish the cases she conducted as Assistant Public Prosecutor before the Juvenile Justice Board and other certificates relating to her service as Assistant Public Prosecutor apart from other testimonials. Petitioner has produced the application along with the certificates submitted by the 3[rd] respondent pursuant to the W.P.(C) No.2275/18 :8: notification, as Ext.P6 series which she obtained under the Right to Information Act. Ext P6 series contains only the certificate from the Bar Association, indicating her membership with it, apart from the biodata in which she has furnished her experience. However, along with the counter affidavit the 3[rd] respondent has given a list of cases which she conducted in the Sessions Court. The contention of the petitioner is that appointment is not made on evaluation of merits. The appointment of Special Public Prosecutors in POCSO courts is governed by Section 32 of the Act, which reads as follows: _32. Special Public Prosecutors.—(1) The State Government shall, by notification in the Official Gazette, appoint a Special Public Prosecutor for every Special Court for conducting cases only under the provisions of this Act._ _(2) A person shall be eligible to be appointed as a Special Public Prosecutor under sub-section (1) only if he had been in practice for not less than seven years as an advocate._ _(3) Every person appointed as a Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of Section 2 of the Code of Criminal Procedure, 1973 (2 of 1974) and provision of that Code shall have effect accordingly._ 10. The qualification for appointment is not less than 7 years' practice as Advocate. Therefore, it is necessary to examine the manner in which the appointment was made. It is stated that appointment was made in accordance with Section 24(4) of Cr. P.C., as permitted by this court in the judgment in W.P.(C) No. 22255 of 2017. Sub sec.3 of Section 32 of POSCO Act provides that every person W.P.(C) No.2275/18 :9: appointed as a Special Public Prosecutor under that Section shall be deemed to be a Public Prosecutor within the meaning of Sec 2(u) of Code of Criminal Procedure which reads as follows: _Sec. 2 (u): “Public Prosecutor” means any person appointed under Section 24 and includes any person acting under the directions of a Public Prosecutor._ Therefore going by sub sec.3 of sec.32 read with Section 2(u) of the Cr.P.C, Special Public Prosecutor under the POCSO Act shall be a Public Prosecutor appointed under Sec.24 of Cr.P.C to conduct cases under the POCSO Act. Sec.24 of Cr.PC reads as follows: _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 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_ W.P.(C) No.2275/18 :10: _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 purpose_ s 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 Prosecutors, 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 Prosecutor under this Code._ ## _**(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under subsection (1) or sub-section (2) or sub-section (3) or subsection (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 than ten years as a Special Public Prosecutor:_ _Provided that the Court may permit the victim to engage an advocate of this choice to assist the prosecution under this subsection._ _(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._ (emphasis supplied) Under Subsection 4 read with subsection 5 of of Section 24 of Cr. P.C, State shall make appointment of Public Prosecutors from the panel of lawyers with not less than 7 years of practice, forwarded by the District Magistrate in consultation with the Sessions Judge. Under W.P.(C) No.2275/18 **==> picture [19 x 9] intentionally omitted <==** Subsection 4, the District Magistrate has to prepare the panel in consultation with the Sessions Judge and that panel shall contain names of persons who are in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the District. Thus the preparation of the panel and the opinion regarding fitness for appointment shall be in consultation with the Sessions Judge. Sub section 5 mandates the Government to make appointment from such a panel alone. It is to be noted that under subsection 4 the panel should contain the names of persons fit for appointment. The Rule as it stands does not provide that the District Judge has to forward any select list on the basis of merit as contended by the petitioner. 11. The scope of Section 24(4) and (5) was considered by this court in the judgment in _**Abdul Khader v. Government of Kerala : 1992(2) KLT 948**_ , where Government's power to cancel the appointment of a Special Prosecutor was upheld. The observations of the learned Single Judge in para 8 are relevant which read as follows: _8. Section 24(3) of the Code casts an obligation on the State to appoint a public prosecutor in every district. Sub-section confers a discretion on the Government to appoint additional public prosecutor for the district, A public prosecutor can be appointed only from a panel of names prepared by the District Magistrate. While preparing a panel, the District Magistrate concerned is under obligation to consult the . Sessions Judge concerned in order to form the opinion whether a particular person is fit to be appointed as public prosecutor or additional public prosecutor. It is specifically made clear that unless a person has put in practice as an advocate for seven years, he is not eligible to be appointed. A District Magistrate is obliged to consult the Sessions Judge because_ W.P.(C) No.2275/18 :12: _it is the Sessions Judge who has better opportunities to assess the merits and capabilities of an advocate. His views on the person, therefore, acquires considerable weight to help the District Magistrate in preparing the panel. A District Magistrate is not supposed to delete a person recommended by the Sessions Judge from the panel, nor could the District Magistrate include a name which has not been recommended by the Sessions Judge. Consultative process envisaged in the provisions cannot be made a mere formally. So much statutory trammels are provided in the appointment of a public prosecutor and additional public prosecutor. This is because the office of a public prosecutor carries very great public._ 12. A Division Bench of this Court in the judgment in _**Vinod E.R. v. State of Kerala and others : 2016 (3) KLT 920 = 2016 (4) KHC 737**_ **,** considered the question whether the Additional District Government Pleaders/Additional Public Prosecutors appointed under the Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978(Kerala), (KGLO Rules), for a period of 3 years are entitled to get their term renewed without undergoing the process prescribed for appointment. While declaring that the petitioner therein cannot have any right for re-appointment it was held that the KGLO Rules confer power on Government to terminate the engagement even before the expiry of the term of appointment. It was held that nothing prevents the Government in identifying persons with more knowledge, more confidence, competence, honesty, integrity and such other traits upon whom more confidence can be reposed, provided such identification is in accordance with Section 24(4) and (5) of the Cr. P.C. Regarding the procedure prescribed in Section 24(4) and W.P.(C) No.2275/18 :13: ## (5) the Division Bench observed as follows: _“44. Insofar as sub-sections (4) and (5) of S.24 of the CrPC are concerned, they clearly refer to the term 'panel' and preparation of the same by the District Collector, in consultation with the District and Sessions Judge. What flows from the provision is as to the necessity to have 'mandatory / effective consultation' with the District and Sessions Judge as to the suitability of the person concerned. This alone has been explained and asserted by the Apex Court in Chauhan's case and there cannot be any dispute with regard to the same. As observed by the Apex Court, the expression "panel of names of persons" used in S.24(4) and (5) do 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. What has been asserted by the Supreme Court is that, consultation with the District and Sessions Judge is not an empty formality and that the statutory mandate requires 'effective and real consultation' by the District Magistrate and the District and Sessions Judge; and if only this lapse is established, will there occur any infraction of the provisions of S.24 of the CrPC. It is in the said circumstance, that the Apex Court has made it clear in Chauhan's case that, if the District and Sessions Judge has affirmed the suitability of a person with regard to qualification, experience, integrity, reliability and reputation, it is only the suitability of such person for being appointed as Public Prosecutors 'on administrative grounds', that can be decided by the District Magistrate.”_ 13. Petitioner's claim for appointment is based on the judgment in _**State of Punjab v. Brijeshwar Singh Chahal : (2016)**_ _**6 SCC 1**_ . The Apex Court was considering the validity of appointment of Government Law Officers in Punjab and Haryana where there are no rules governing such appointments. It was observed that at times even Government engages law officers after making discrete enquiry about their suitability. In the case of State of Haryana it was stated that the suitability was being assessed by Advocate General based on which appointments were made on contract basis. In para.41 of the W.P.(C) No.2275/18 :14: ## judgment the Apex Court held as follows: _41. To sum up, the following propositions are legally unexceptionable:_ _41.1. The Government and so also all public bodies are trustees of the power vested in them._ _41.2. Discharge of the trust reposed in them in the best possible manner is their primary duty._ _41.3. The power to engage, employ or recruit servants, agents, advisors and representatives must like any other power be exercised in a fair, reasonable, non-discriminatory and objective manner._ _41.4. The duty to act in a fair, reasonable, non-discriminatory and objective manner is a facet of the Rule of Law in a constitutional democracy like ours._ _41.5. An action that is arbitrary has no place in a polity governed by Rule of Law apart from being offensive to the equality clause guaranteed by Article 14 of the Constitution of India._ _41.6. Appointment of Government Counsel at the district level and equally so at the High Court level, is not just a professional engagement, but such appointments have a “public element” attached to them._ _41.7. Appointment of Government Counsel must like the discharge of any other function by the Government and public bodies, be only in public interest unaffected by any political or other extraneous considerations._ _41.8. The Government and public bodies are under an obligation to engage the most competent of the lawyers to represent them in the courts for it is only when those appointed are professionally competent that public interest can be protected in the courts._ _41.9. The Government and public bodies are free to choose the method for selecting the best lawyers but any such selection and appointment process must demonstrate that a search for the meritorious was undertaken and that the process was unaffected by any extraneous considerations._ _41.10. No lawyer has a right to be appointed as a State/Government Counsel or as Public Prosecutor at any level, nor is there any vested right to claim an extension in the term for which he/she is initially appointed. But all such candidates can offer themselves for appointment, re-appointment or extension in which event their claims can and ought to be considered on their merit, uninfluenced by any political or other extraneous considerations._ _41.11. Appointments made in an arbitrary fashion, without any transparent method of selection or for political considerations will be amenable to judicial review and liable to be quashed._ W.P.(C) No.2275/18 **==> picture [20 x 9] intentionally omitted <==** _41.12. Judicial review of any such appointments will, however, be limited to examining whether the process is affected by any illegality, irregularity or perversity/irrationality. The Court exercising the power of judicial review will not sit in appeal to reassess the merit of the candidates, so long as the method of appointment adopted by the competent authority does not suffer from any infirmity._ 14. Petitioner asserts that para 41.09 is not followed in the appointment as the petitioner being the most meritorious was not selected and the selection is vitiated by extraneous consideration. But the question is whether this Court can on the materials on record enter into a finding as to the inter-se merit of those in the panel or between the petitioner and the 3[rd] respondent. Paragraph 41.12 limits the judicial review on such appointments only on grounds of illegality, irregularity or perversity/irrationality. Re-assessment of merit is specifically excluded when there is no infirmity in the method of appointment. 15. The Apex Court reiterated that the meritorious person should be appointed and reiterated the recommendations of the Law Commission to have some extra provisions in Section 24(4) of Cr. P.C requiring that the Sessions Judge must give importance to experience in Sessions cases, merit and integrity. In paragraph 51.6. the apex court clarified the following: > _“51.6.We further clarify that although we are primarily concerned with the procedure regarding selection and appointment of Law Officers in the States of Punjab and Haryana and although we have confined our directions to the said two States only yet other_ W.P.(C) No.2275/18 **==> picture [20 x 9] intentionally omitted <==** _States would do well to reform their system of selection and appointment to make the same more transparent, fair and objective, if necessary, by amending the relevant LR Manuals/Rules and Regulations on the subject.”_ 16. The petitioner relies on the judgment of the Apex Court and claims that by virtue of her experience in the court of sub divisional Magistrate for the period from 2012 to 2017, she is the most meritorious candidate liable to be appointed. On the other hand, the petitioner does not a have a case that the 3[rd] respondent suffers from any disqualification. Both the petitioner and the 3[rd] respondent are included in the panel. There is no basis for the assertion of the petitioner that the District Judge had sent the list on the basis of any comparative evaluation of merit of the candidates. When the petitioner claims her merit based on her service as Assistant Public Prosecutor in the court of Sub Divisional Magistrate and Juvenile Justice Court, the 3[rd] respondent claims that she has experience in conducting cases in the Sessions Court furnishing a list of cases. 17. Though it is necessary that the endeavour of the State shall be to appoint the best among the available as Special Public Prosecutors, no procedure or guidelines are available in the Rules which provide for assessment of merit of the candidates. At any rate, in the light of paragraph 51.6, it is for the State to incorporate the provisions in the rules as mentioned therein for appointment of W.P.(C) No.2275/18 :17: Prosecutors. 18. _**In State of U.P v. Johri Mal : (2004)4 SCC 714**_ , the three member Bench of the Apex Court, which considered the claim raised by UP Govt Law Officers to get their appointment renewed, held in para 40 as follows: _“So long as in appointing a counsel the procedures laid down under the Code of Criminal Procedure are followed and a reasonable and fair procedure is adopted the courts will normally not interfere with the decision._ ## _xxx_ 19. This court will not be in a position to assess the comparative merit of the candidates or to come to a conclusion that the petitioner is the most meritorious candidate or that the 3[rd] respondent is less meritorious. Just because petitioner's name was listed as No.1 in the list forwarded by the District Judge, it cannot be said that Government has to make appointment in the very same order under which the names occur in the panel. From the pleadings on record it can be seen that both the petitioner and the 3[rd] respondent are duly qualified. There is no rule which provides that appointments should be made in the order in which the list of candidates have been forwarded from the office of the District Magistrate to the Government. There is no rule which requires the District and Sessions Judge to prepare a merit list. W.P.(C) No.2275/18 **==> picture [20 x 9] intentionally omitted <==** Therefore, as long as there is no disqualification for the 3[rd] respondent and the 3[rd] respondent is the person who was found fit for appointment, her appointment cannot be said to be illegal. Hence, in the absence of illegality, irregularity or perversity or irrationality, I do not find any circumstance which warrants interference under Article 226 of the Constitution of India. Writ petition is therefore dismissed. Sd/- **P.V.ASHA JUDGE** rkc