Punit Kumar SrivastavaversusThe State of Bihar

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.1855 of 2025
     ======================================================
     Punit Kumar Srivastava Son of Nand Kishor Lal Srivastava Resident of 100
     Ram Gulam Tola, Deoria, P.S.-Kotwali Deoria, District-Deoria (Uttar
     Pradesh) at Present Posted as Sub-Divisional Prosecution Officer, District
     Prosecution Office, Rohtas, Sasaram (Bihar)

                                                                ... ... Petitioner/s
                                        Versus

1.   The State of Bihar through the Additional Chief Secretary, Home,
     Government of Bihar, Patna.
2.   The Additional Chief Secretary, Home Government of Bihar, Patna.
3.   The Secretary, Home Government of Bihar, Patna.
4.   The Director, Prosecution, Directorate of Prosecution, Home Bihar.
5.   District Prosecution Officer Incharge, Rohtas, Sasaram.

                                               ... ... Respondent/s
     ======================================================
     Appearance :
     For the Petitioner/s     :     Mr.Jnanchandra Bhardwaj, Advoacte
     For the Respondent/s     :     Mr.Kumar Manish, SC-5
                                    Mr. Prashant Kumar, AC to SC-5
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN

                                  C.A.V. JUDGMENT

      Date : 14-05-2026
                     Heard learned counsel appearing for the

      petitioner and learned counsel appearing for the State.

                            2. The petitioner has filed the present writ

      petition for issuance of writ of certiorari to quash the order of

      transfer vide Notification No. 145 dated 16.01.2025 at Serial

      No. 2 from the post of Sub Divisional Prosecution Officer,

      posted in the District Prosecution Office, Rohtas, Sasaram to the

      office of Vigilance Investigation Bureau, Bihar as law Officer

      and further prayer for quashing the relieving order No.8/2025
Patna High Court CWJC No.1855 of 2025 dt.14-05-2026
                                           2/8




         contained in Memo No. 144 dated 04.04.2025 (Annexure-8).

                            3. Learned counsel appearing for the petitioner

         submits that the petitioner was appointed as Assistant

         Prosecution       Officer     vide      Notification   No.   1011   dated

         25.09.2017 and was subsequently promoted to the post of Sub-

         Divisional Prosecution Officer vide Notification No. 2513 dated

         31.10.2023, both issued by the Directorate of Prosecution,

         Home Department, Government of Bihar, Patna. It is further

         submitted that the petitioner, vide Letter No. 20 dated

         17.01.2025, made a representation before the Director of

         Prosecution requesting that he be posted in any District

         Prosecution Office by rectifying or omitting his name at Serial

         No. 2 of the transfer notification (Annexure P/1 to the writ

         petition). A similar representation was also submitted before

         respondent no. 2, namely, the Additional Chief Secretary, Home

         Department, Government of Bihar, Patna, as contained in

         Annexure P/2, but no relief was granted.

                            4. Learned counsel further submits that this

         Court, vide order dated 14.11.1995 passed in CWJC No. 5573 of

         1995, had directed the State authorities to create a separate

         prosecution cadre independent of the police department in terms

         of Section 25 of the Code of Criminal Procedure, so as to ensure
Patna High Court CWJC No.1855 of 2025 dt.14-05-2026
                                           3/8




         that no Assistant Public Prosecutor remains subordinate to

         police officers. The said order was challenged by the State of

         Bihar in LPA No. 294 of 1996, which came to be dismissed by a

         Division Bench of vide order dated 04.11.1996 (Annexure P/7

         to the supplementary affidavit). The Special Leave Petition

         preferred before the Hon’ble Supreme Court was also

         dismissed.

                            5. It is further submitted that pursuant thereto,

         the Prosecution Manual, 2003 was framed and placed before

         this Court in MJC No. 2110 of 1997, whereby the Directorate of

         Prosecution and Prosecution Officers were freed from the

         administrative and disciplinary control of the police department.

         Learned counsel submits that, after the enactment of the Code of

         Criminal Procedure, 1974, the prosecution service was intended

         to function independently of police control.

                            6. Learned counsel also submits that in a similar

         matter, where a Prosecution Officer was posted at Police

         Training College, Hazaribagh under the administrative control

         of the Principal-cum-D.I.G. of Police, a Division Bench of this

         Court, vide order dated 21.05.1992 passed in CWJC No. 4287

         of 1992, had stayed such transfer notification and directed

         appropriate      posting      (Annexures     P/5   and   P/6   to   the
Patna High Court CWJC No.1855 of 2025 dt.14-05-2026
                                           4/8




         supplementary affidavit). It is further submited that despite

         settled legal position, the respondent authorities are ignoring the

         law as well as binding precedents of this Court, inasmuch as

         Prosecution Officers cannot be placed under the administrative

         and disciplinary control of the police department or its officers.

         It is further submitted that the petitioner was not even afforded

         an opportunity to exercise his option for posting.

                            7. On the other hand, learned counsel for the

         respondent-State submits that the petitioner is an officer of the

         Bihar Prosecution Service and is presently holding the post of

         Sub-Divisional        Prosecution       Officer.   In   the   interest   of

         prosecution administration, the Government of Bihar, Home

         Department, Directorate of Prosecution, issued Notification No.

         145 dated 16.01.2025 (Annexure-A to the counter affidavit),

         whereby 13 Prosecution Officers, including the petitioner, were

         transferred. It is submitted that all such officers, except the

         petitioner, have joined their respective places of posting.

                            8. It is further submitted that the petitioner has

         been transferred to the Vigilance Investigation Bureau, Patna, as

         a Law Officer against a sanctioned post, where several

         Prosecution Officers are already posted and drawing their

         salaries. Learned counsel submits that the petitioner was duly
Patna High Court CWJC No.1855 of 2025 dt.14-05-2026
                                           5/8




         relieved by the District Prosecution Officer In-charge, Rohtas

         (Sasaram), vide Order No. 8/2025, Memo No. 144 dated

         04.04.2025, in compliance with the said notification. Learned

         counsel further submits that as per Resolution Memo No. 4521

         dated 03.04.1989 issued by the Department of Personnel and

         Administrative Reforms, Government of Bihar, a gazetted

         officer is required to join the transferred place of posting within

         seven days of receipt of the transfer order, failing which

         departmental proceedings, including suspension, may be

         initiated. It is also mandated that the controlling officer must

         relieve such officer within the stipulated period.

                            9. It is further contended that Rule 27 of the

         Bihar Prosecution Manual, 2003 permits posting/deputation of

         Prosecution Officers in other departments for legal work. The

         petitioner, being a government servant, is bound by the

         applicable rules and regulations. Accordingly, it is submitted

         that the writ petition is devoid of merit and is liable to be

         dismissed.

                            10. In response, learned counsel for the

         petitioner submits that Rule 27 of the Bihar Prosecution Manual,

         2003 does not authorize posting of Prosecution Officers under

         the administrative and disciplinary control of the police
Patna High Court CWJC No.1855 of 2025 dt.14-05-2026
                                           6/8




         department or its officers, which would be contrary to the settled

         legal position. It is further submitted that such action is also in

         violation of Rule 31 of the Prosecution Manual, 2003.

                            11. After hearing the parties and perusal of the

         record, it transpires to this Court that with a view to adjudicate

         this matter, it is necessary to quote the relevant extract of Bihar

         Prosecution Manual, 2003, which has been published in the

         Bihar Gazette (Extraordinary) No.177 dated 21st April, 2003.

         Article 309 of the Constitution of India empowers the

         appropriate legislature to regulate the recruitment and

         conditions of service for public servants serving the Union or a

         State. Admittedly, the petitioner who is an Officer of Bihar

         Prosecution Service and working as Bihar Prosecution Officer

         whose services have been guided by the Bihar Prosecution

         Manual, 2003. Rules 27 and 31 of the said Manual on which

         the State is relying are as follows:-

                                                 “27. dqy Lohd`r cy dk 5 izfr”kr cy
                            vodk”k] izf”k{k.k ,oa izfrfu;qfDr fjtoZ ds :i esa miyC/k
                            gksxkA ljdkj@egkfuns”kd] vfHk;kstu }kjk vko”;drkuqlkj
                            blh fjtoZ cy esa ls inkf/kdkfj;ksa ds vU; foHkkxksa esa Lohd`r
                            xSj lEoxhZ; inksa ds fo:) fof/k laca/kh dk;Z djus ds fy;s
                            fu;qDr@izfrfu;qDr fd;k tk;sxkA
                                                 31 ftu fcUnqvksa ij bl gLrd esa
                            fof”k’V izko/kku ugha gS] mu ekeyksa esa jkT; ds led{k vU;
                            ljdkjh deZpkfj;ksa ij ykxw vU; lkekU; fu;ekofy;ka¡W
Patna High Court CWJC No.1855 of 2025 dt.14-05-2026
                                           7/8




                            vfHk;kstu lEoxZ ds lnL;ksa ij Hkh ykxw gksxhA”



                            12. It transpires to this Court that every

         Prosecution Officer has to work under the Department of Home

         and according to Rule 27 of the Bihar Prosecution Manual,

         2003, 5 percent of total sanctioned post shall be available as

         reserve post and their appointment/deputation may be made in

         other department for doing the legal work.

                            13. In light of the provisions under Rule 27 of

         the Bihar Prosecution Manual, 2003, the contention of the

         petitioner is not sustainable in the eyes of law that, being a

         Prosecution Officer, he shall always be posted as a District

         Prosecution Officer, as the Rules governing him, namely the

         Bihar Prosecution Manual, 2003, itself provide specific

         provisions for appointment/deputation in other departments as

         well, wherever the Government or the parent department is in

         need.

                            14. So far as the judgment on which the

         petitioner relied shall not applicable upon the petitioner as those

         judgments are of 1996 and of 1992 when the Bihar Prosecution

         Manual has not been enacted. This Court is of the firm view that

         the services of the petitioner shall be guided by the Bihar

         Prosecution Manual, 2003 and not by any other law till the said
             Patna High Court CWJC No.1855 of 2025 dt.14-05-2026
                                                        8/8




                      prosecution manual any of its provision shall not be declared

                      ultravires by the Court of competent jurisdiction. Working in

                      any office on deputation cannot be said to be worked under the

                      administrative and disciplinary control of the said department

                      due to the reason that the petitioner is ultimately the employee

                      of Bihar Prosecution Service and the rule framed under Rule 31

                      of the Manual shall also binding upon upon.

                                         15. In the light of the discussions and reasons

                      mentioned above, this Court is of the firm view that petitioner

                      has no case and, hence, this writ petition is dismissed.


                                                                   (Dr. Anshuman, J)

Ashwini/-
AFR/NAFR
CAV DATE                18.04.2026
Uploading Date          15.05.2026
Transmission Date       NA