ADVOCATE HEMANT KUMAR WRITES TO STATE GOVT & REGR-GEN OF HC POINTING DISCREPANCY IN SERVICE RULES
(MOREPIC1) Face2News/Chandigarh
The State Government of Haryana is currently seized of the matter pertaining to making appointment to the post of Director of Prosecution (General)-DoP(Gen) since the previous incumbent Sanjay Hooda, who was appointed as such with effect from 1 June 2022 ( read under Section 25 A (2) of then existing Code of Criminal Procedure(CrPC),1973 in concurrence with then Chief Justice of Punjab & Haryana High Court) completed his three years tenure last week on 31 May 2025.
Meanwhile, Hemant Kumar, an Advocate at Punjab & Haryana High Court has shot off a Representation to the State Governor, Chief Minister (who also holds portfolio of Home Department), Home Secretary, Legal Remembrancer-LR cum Law Secretary, Advocate General etc. along with a copy to the Registrar-General of High Court so as to uphold the majesty and sanctity of Law ( read Section 20 (2) (a) of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023- Central Act No. 46 of 2023) and ensuring its strict and meticulous compliance in the appointment of next DoP (Gen) of Haryana.
(SUBHEAD)Hemant told that as per Rule 9(1)(a) of Haryana State Prosecution Department Legal Service (Group A) Service Rules, 2013 ( as amended till date), the tenure of DoP (Gen) is for a period of three years or upto the date of attaining the age of superannuation, whichever is earlier, subject to satisfactory work and conduct. Sanjay Hooda’s superannuation from Haryana Govt Service is however scheduled after two years in August, 2027.
As per aforementioned Rule, after completion of three years tenure as DoP (Gen) Sanjay Hooda would now be re-designated as DoP (Special) and may be considered for appointment on deputation/foreign service in any other Department of the State Government or any other State Government or any Board or Corporation etc. owned or controlled by the State Government or any other State Government for the post of same or higher pay level/scale;
Noteworthy that when Sanjay Hooda was appointed as DoP (Gen) in June, 2022, The Code of Criminal Procedure(CrPC), 1973 was in force which has since been repealed and replaced by Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 with effect from 1 July 2024.
Now Section 20 (2)(a) of BNSS, 2023 provides that person shall be eligible to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, if he has been in practice as an advocate for not less than fifteen years or is or has been a Sessions Judge, asserted Hemant.
However, Rule 9(1)(a) of Haryana State Prosecution Department Legal Service (Group A) Service Rules, 2013 provides that post of DoP (Gen) shall be filled by promotion from amongst the Additional Directors ( with at least one year experience as such) on merit-cum-seniority basis with the concurrence of the Chief Justice, Punjab and Haryana High Court in terms of section 25 A of the Code of Criminal Procedure, 1973 for a period of three years or upto the date of attaining the age of superannuation, whichever is earlier, subject to satisfactory work and conduct.
Hence, there is a clear conflict/contradiction between what is mandated in Section 20(2)(a) of BNSS, 2023 vis-à-vis Rule 9(1)(a) of Haryana State Prosecution Department Legal Service (Group A) Service Rules, 2013 pertaining to the eligibility for the post of Director of Prosecution (General) quipped Hemant.
Be that as it may, the Advocate in his representation has asserted that it is trite law and also judicially settled in a number of Authoritative Pronouncements by a catena of Judgments of Supreme Court of India as well as various High Courts that in case of any sort of inconsistency between the Provisions of a duly enacted Act vis-a-vis the Rules framed under such Act, it is the relevant provision of the Act that would prevail and would be applicable and not what is mentioned in such Rule.
In view of the above, Hemant has appealed that the post of new DoP(Gen) in the State of Haryana should be filled in strict and meticulous compliance of Section 20 (2) of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 and not under Rule 9(1)(a) of Haryana State Prosecution Department Legal Service (Group A) Service Rules, 2013.