Patna High Court
Tarak Nath Mukherjee vs State Of Bihar And Ors. on 21 May, 1992
Equivalent citations: 1992(2)BLJR989
JUDGMENT
S.N. Jha and N. Roy, JJ.
1. The controversy in this writ application is short and simple and point covered by binding judicial precedents. As such, we do not propose to set out the facts in detail. It may only be stated that the petitioner by order dated 26th October 1989 as contained in Annexure-1 was appointed Public Prosecutor for the district of Dhanbad for a term of three years. On 26th November, 1990, however, Sri Janki Prasad Kewat, respondent No. 4, was appointed as the Public Prosecutor in his place. A copy of the said order appointing respondent No. 4 as Public Prosecutor has been marked Annexure-2 to the writ petition. No formal order cancelling or terminating the appointment of the petitioner was communicated him or has been brought or record.
2. A counter affidavit sworn by Sri Saket Bihari Ambastha Under Secretary in the Department of Law, has been filed on behalf of the respondent State, in paragraph 8 whereof it has been stated in rather oblique terms that the appointment was cancelled after a month of the end of probationary period. The reason for making fresh appointment, but not terminating the previous appointment has been stated in paragraph 6 of the said affidavit in these words:
Thus, in normal way, the term of appointment of Shri Mukherjee would have been expired on 26th October, 1992 but in the meanwhile when the new State Government came to power in March, 1990, it took a policy decisions to make fresh appointment of Public Prosecutor and Government Pleader in all the districts of the State irrespective of the fact whether they have completed the term or not.
Mr. M. M. Banerjee, learned Counsel appearing for the petitioner, submitted that in view of the stand taken on behalf of the respondents this case is fully covered by the ratio of the decision in Uday Nath Roy v. State of Bihar and Ors. 1992 (1) PLJR 258. We shall refer to the observations and the law laid down in the said decision soon hereinafter.
3. Respondent No. 4 has also filed counter affidavit. The thrust of his stand therein is that the petitioner, after appointment of respondent No. 4 as the new Public Prosecutor, voluntarily made over charge of the office on 3rd December, 1990 and accordingly, he must be deemed to have waived his rights, if any to hold the post.
4. In Mundrika Prasad Sinha v. State of Bihar , it was observed:
It is in the best interest of State that it should engage competent lawyers without hunting for political partisans regardless of capability. Public offices and Government Pleadership is one shall not succumb to Tammany Hall or subtler spoils system, if purity in public office is a desideratum.
Recently, in Kumari Shrilekha Vidyarathi v. State of U.P. , it has been held that the office of the Public Prosecutor is a public office and that although the appointment of Public Prosecutor cannot be equated with appointment to a post under the Government in strict sense, it does not necessarily mean that it results in denuding the office of Public Prosecutor and that the appointment may be terminated even during the currency of the term at the sweet will of the Government without existence of any cogent reason and without communicating the reasons which led to the termination. As noticed above, the only ground stated in the counter affidavit filed on behalf of the respondent-State is that on account of change of the Government a policy decision was taken to make fresh appointment of Law Officers in all the districts of the State whether they have completed their term or not. This aspect of the matter has been pointedly noticed in Uday Nath Roy's case (supra) which has been relied upon by the learned Counsel for the petitioner, wherein it has been stated that the Government may be justified in losing confidence in the holder of a public office, if it is shown that the holder of the public office has acted in disregard of his duties and obligations and/or has acted in illegal manner contrary to public interest but:
Mere change of Government is wholly irrelevant to justify removal of a Public Prosecutor who holds a public office and is charged with the duty of acting honestly impartially and objectively in the interest of administration of justice.
5. Nothing has been stated in the affidavits filed on behalf of the respondent State or on behalf of respondent No. 4 alleging that the appointment of the petitioner as the Public Prosecutor suffered from any kind of infirmity. Further, nothing has been stated in the said affidavits making any kind of allegation against the petitioner that he had acted in disregard of his duties and obligation or in a manner contrary to public interest. The impugned order of the State Government appointing respondent No. 4 as Public Prosecutor in place of the petitioner is thus, fit to be struck down as being arbitrary and illegal.
6. During hearing of this case, the learned Government Pleader produced a copy of the order of the Supreme Court in Civil Appeal No. 3814 of 1991 arising out of S.L.P. (Civil) No. 2352 of 1991 Pramod Narayan Singh v. State of Bihar. He submitted that, as was done in that case, the petitioner may function as the Additional Public Prosecutor for the remainder of the term. From bare persual of the aforesaid order of the Supreme Court it would appear that their Lordships wanted to give parity of status to the appellant who had been arbitrarily and illegally removed from the office. This would be evident from the following passage from the said order:
We, therefore, directed the State counsel to take instructions as to whether it was possible to continue the appellant as a Public Prosecutor in addition to Respondent No. 3.
Taking notice of the relevant provisions of the Code of Criminal Procedure which provides for appointment of more than one additional Public Prosecutor for a district, it was said that the appellant should be continued in office for remainder of his original term as Additional Public Prosecutor. It is common knowledge, and the same is not disputed by the respondent that in every district in the State of Bihar, besides a Public Prosecutor there are host of lawyers of the State panel, who are designated as Additional Public Prosecutor. They conduct the cases which are assigned to them by the Public Prosecutor and/or the District Magistrate or the State Government. By and large they have to function under the control of the Public Prosecutor. If the Public Prosecutor so desires, he may not assign any case at all to the Additional Public Prosecutor. Their scale of fees is lower than that of Public Prosecutor, Their status is not the same. In that view of the matter, merely allowing the petitioner to function as Additional Public Prosecutor would not be in consonance with the order of the Supreme Court. In this connection learned Counsel for the petitioner rightly submitted that if the petitioner, in terms of Supreme Court's order, can function as Additional Public Prosecutor then why respondent No. 4 cannot function as Additional Public Prosecutor.
7. We have already indicated above and held that the appointment of respondent No. 4 as Public Prosecutor replacing the petitioner in the said office is arbitrary and illegal and, therefore, we have no manner of doubt that the petitioner should be allowed to function as Public Prosecutor for the remainder of the term. We hasten to clarify, however, that this order should not stand in the way of the State Government in terminating the appointment of the petitioner as Public Prosecutor for valid, sufficient and justifiable reasons and in accordance with law.
8. In the result, this application is allowed. The respondents are directed to permit the petitioner to function as Public Prosecutor in the district of Dhanbad with immediate effect for the remainder of the term of his appointment i.e. till 25th October, 1992, subject to the observations made hereinabove. It will be open to the respondents to also permit respondent No. 4 to function as the Additional Public Prosecutor. The order as contained in Annexure-2 is modified to that extent. There will be no order as to costs.