Bombay High Court orders enhancement of fees for Special Assistant Public Prosecutors

The Aurangabad Bench of the Bombay High Court on Thursday directed the State of Maharashtra to enhance the fee structure/honorarium of Special Assistant Public Prosecutors (special APPs) within two months and bring it at par with the basic pay drawn by regular Assistant Public Prosecutors [All Assistant Special Public Prosecutors Association v State of Maharashtra]. .A Bench of Justice SG Mehare and Justice Shailesh P Brahme passed the direction while dismissing a plea seeking regularization of services of special APPs."The claim of all the petitioners of regularization and absorption is rejected. The respondents shall enhance the fees structure/honorarium of special APPs within a period of two months from today which may be commensurate with the basic pay drawn by APP and disburse the payment, accordingly," the Court said..The petitioners, various Special Assistant Public Prosecutors working in Maharashtra, had approached the High Court with several grievances. They sought regularization of their services, parity in pay scale and benefits at par with regularly appointed APPs. Their appointments were made under Section 25(3) of the Code of Criminal Procedure (CrPC), with District Magistrates appointing them in cases where regular APPs were unavailable. These appointments were made from 2006 to 2015 and while their honorarium was periodically revised, they were not treated as regular employees of the State government and lacked service benefits..The petitioners argued that their work was identical to that of regularly appointed APPs and they should be entitled to the same pay and benefits. They also claimed that the State had failed to address the disparity in pay despite their full-time work and that their low conviction rates should not be the basis for their removal.The Court dismissed the claim for regularization, emphasizing that the special APPs were not appointed through a regular competitive process or against sanctioned posts. .The Court referred to the Uma Devi ruling, stressing that regularization could not be granted unless appointments were made according to established recruitment procedures."If the relief of regularization is granted to the petitioners, then doctrine of equality contained in Articles 14 and 16 of the Constitution as well as constitutional scheme would be violated. Merely because the petitioners are working as Special Assistant Public Prosecutors for more than ten years cannot be a criteria for granting them regularization," the Bench said. However, the Court upheld the petitioners' claim for parity in pay observing that the nature of work undertaken by them is identical to that of regular APPs. "We have not been pointed out any reasonable classification based on intelligible criteria having nexus with the object sought to be achieved for not making payment equal to that of regular APPs. The nature of the work, quantum and consumption of time are identical," the Court opined..The Court further said that if the respondents were expecting an adequate conviction rate and objectively scrutinizing the performance of the special APPs, they should be compensated reasonably. "It is lopsided to say that for emoluments and scale, they cannot be equated with APPs. Honorarium which they are receiving, is not adequate." The Court also observed that the honorarium paid to special APPs was insufficient given the nature of their duties..While acknowledging that it was within the prerogative of the respondents to determine the fees structure, the Court insisted that their "honorarium needs to be escalated reasonably."The Court also quashed an order dated November 10, 2014, which had removed special APPs based on low conviction rates, finding it arbitrary. However, it dismissed the challenge to the government resolution dated May 28, 2013, which created regular APP posts.Similarly, the Court dismissed the challenge to the government resolution dated May 12, 2015, which constituted a committee for selecting special APPs finding that the formation of such a committee was a positive step toward rationalizing and ensuring transparency in the selection process..The Court also dismissed the petitioners' challenge to the advertisement dated July 4, 2015, for the recruitment of regular APPS through the Maharashtra Public Service Commission on the ground that it was part of the regular recruitment procedure under Article 309 of the Constitution. Lastly, the Court rejected the challenge to the circular dated October 31, 2018, which provided for the preparation of new panels for special APPs..Advocate AN Nagargoje, Advocate UR Awate instructed by Talekar and Associates, Advocate Hamzakhan I Pathan and Advocate Anant R Devkate appeared for various petitioners. Additional Government Pleader Neha Kamble along with Government Pleader AB Girase appeared for the State of Maharashtra. .[Read Judgment]