Madhya Pradesh High Court
Rajesh Sharma vs State Of M.P. And Ors. on 4 May, 2005
Equivalent citations: 2005(3)MPHT84
Author: Rajendra Menon
Bench: Rajendra Menon
ORDER Rajendra Menon, J.
1. Petitioner has filed this petition being aggrieved by an order dated 3-3-2005 by which appointment of the petitioner as a Special Public Prosecutor made vide Annexure P-2, dated 27th November, 2002 has been terminated without assigning any reason.
2. Petitioner is an Advocate practising in the District Datia since 1988. It is the case of the petitioner that considering his performance and ability, the District Magistrate and the District Judge, Datia recommended his case for appointment as Special Public Prosecutor and after evaluating his merit and suitability vide order (Annexure P-2), dated 27th November, 2002, he has been appointed as a Special Public Prosecutor for a period of three years. In the quarterly meeting held by the District Magistrate and the District Judge monitoring the work and performance of various officers, working of the petitioner was appreciated and there was no complaint against the petitioner and in an arbitrary manner, appointment of the petitioner has been terminated without assigning any reason. It is the case of the petitioner that only because the Government has changed, on political consideration, his appointment has been cancelled.
3. Shri V.K. Bharadwaj, learned Counsel argued that termination of the appointment of the petitioner made when there was no complaint and without disclosing any reason is unsustainable. Inviting my attention to the law laid down by the Supreme Court in the case of Shrilekha Vidyarthi v. State of U.P., AIR 1991 SC 537, followed in another judgment by the Supreme Court in the case of State of U.P. and Anr. v. Johri Mal, 2004 AIR SCW 3888 and a recent judgment by a Full Bench of this Court in the case of Rajendra Tiwari alias Raju v. State of M.P. and Ors., 2005(3) M.P.H.T. 69 = 2005(1) MPLJ 204, it was argued by Shri Bharadwaj that the order impugned is unsustainable.
4. Refuting the aforesaid, Shri R.D. Agarwal, learned Counsel appearing for the State Government argued that nature of appointment of the petitioner permits the respondents to terminate his services by giving him one month notice. Termination being in accordance with terms and conditions stipulated in Annexure P-2, it is argued by Shri Agarwal that it does not call for any interference. It was further submitted that the order has been passed after complying with the provisions of Paragraph 19 of the Law Department Manual, the State Government has a right to terminate the term of the petitioner who is only a Special Public Prosecutor and he does not hold any post or office in the Government and the engagement of the petitioner being a professional engagement it can be terminated in such manner. Accordingly, Shri Agarwal supported the order and argued that no case is made out for interference in the matter.
5. Question of terminating services of a Public Prosecutor and Government Advocate has been subject matter of litigation in various cases and in the case of Shrilekha Vidyarthi (supra) the Supreme Court had an occasion to consider the action of the State of Uttar Pradesh in terminating en mass Government Counsel and after considering the matter in detail in Paragraphs 13 and 14, it has been observed by the Supreme Court as under :--
"13. The learned Additional Advocate General contended that Clause 3 of Para 7.06 says that the appointment of a District Government Counsel is only professional engagement terminable at will on either side and not appointment to a post under the Government; and the Government has the power to terminate the appointment at any time 'without assigning any cause'. He contended that this power to terminate the appointment at any time without assigning any cause and the clear statement that the appointment is only professional engagement terminable at will on either side is sufficient to indicate that the relationship is the same as that of a private client and his Counsel in our opinion, this provision has to be read not in isolation, but in the context in which it appears and alongwith the connected provisions, already referred. The expression 'professional engagement' is used therein to distinguish it from 'appointment to a post under the Government' in the strict sense. This, however, does not necessarily mean that a person who is not a Government servant holding a post under the Government does not hold any public office and the engagement is purely private with no public element attaching to it. This part of Clause 3 of Para 7.06 means only this and no more. The other part of Clause 3 which enables the Government to terminate the appointment 'at any time without assigning any cause' can also not be considered in the manner, suggested by the learned Additional Advocate General. The expression 'at any time' merely means that the termination may be made even during the subsistence of the term or appointment and 'without assigning any cause' means without communicating any cause to the appointee whose appointment is terminated. However, 'without assigning any cause' is not to be equated with 'without existence of any cause'. It merely means that the reason for which the termination is made need not be assigned or communicated to the appointee. It was held in Liberty Oil Mills v. Union of India, (1984) 3 SCC 465 : AIR 1984 SC 1271, that the expression 'without assigning any reason' implies that the decision has been communicated,, but reasons for the decision have not to be stated, but the reasons must exist, otherwise, the decision would be arbitrary. The non- assigning of reasons or the non-communication thereof may be based on public policy, but termination of an appointment without the existence of any cogent reason in furtherance of the object for which the power is given would be arbitrary and, therefore, against public policy. Clause 3 of Para 7.06 must, therefore, be understood to mean that the appointment of a District Government Counsel is not to be equated with appointment to a post under the Government in the strict sense, which does not necessarily mean that it results in denuding the office of its public character, and that the appointment may be terminated even during currency of the term by only communicating the decision of termination without communicating the reasons which led to the termination. It does not mean that the appointment is at the sweet will of the Government which can be terminated at any time, even without the existence of any cogent reason during the subsistence of the term. The construction, suggested on behalf of the State of U.P., of this provision, if accepted, would amount to conceding arbitrary power of termination to the Government, which by itself is sufficient to reject the contention and thereby save it from any attack to its validity.
14..... Applicability of Article 14 to all executive actions of the State being settled and for the same reason its applicability at the threshold to the making of a contract in exercise of the executive power being beyond dispute, can it be said that the State can thereafter cast off its personality and exercise unbridled power unfettered by the requirements of Article 14 in the sphere of contractual matters and claim to be governed therein only by private law principles applicable to private individuals whose rights flow only from the terms of the contract without anything more ? We have no hesitation in saying that the personality of the State, requiring regulation of its conduct in all spheres by requirements of Article 14, does not undergo such a radical change after the making of a contract merely because some contractual rights accrue to the other party in addition. It is not as if the requirements of Article 14 and contractual obligation are alien concepts, which can not co-exist."
6. It has been held by the Supreme Court in the aforesaid case that while appointing a person to the office of Public Prosecutor or District Government Counsel, public element is attached to the office and the provisions of Article 14 of the Constitution are also attracted.
7. Subsequently, the matter was again considered by the Supreme Court in the case of Johri Mal (supra) and in Paragraphs 39, 76, 77, 78 and 79 of the judgment, it has been observed as under :--
"39. The appointment of public prosecutors, on the other hand, are governed by the Code of Criminal Procedure and/or the executive instructions framed by the State governing the terms of their appointment. Proviso appended to Article 309 of the Constitution of India is not applicable in their case. Their appointment is a tenure appointment. Public prosecutors, furthermore, retain the character of legal practitioners for all intent and purport. They, of course, discharge public functions and certain statutory powers are also conferred upon them. Their duties and functions are onerous but the same would not mean that their conditions of appointment are governed by any statute or statutory rule.
76. In the matter of engagement of a District Government Counsel, however, a concept of public office does not come into play. However, it is true that in the matter of Counsel, the choice is that of the Government and none can claim a right to be appointed. That must necessarily be so because it is a position of great trust and confidence. The provision of Article 14, however, will be attracted to a limited extent as the functionaries named in the Code of Criminal Procedure are public functionaries. They also have a public duty to perform. If the State fails to discharge its public duty or act in defiance, deviation and departure of the principles of law, the Court may interfere. The Court may also interfere when the legal policy laid down by the Government for the purpose of such appointments is departed from or mandatory provisions of law are not complied with. Judicial review can also be resorted to, if a holder of a public office is sought to be removed for reason de hors the statute.
77. The appointment in such a post must not be political one. The Manual states that a political activity by the District Government Counsel shall be disqualification to hold the post.
78. We can not but express our anguish over the fact that in certain cases recommendations are made by the District Magistrate having regard to the political affinity of the lawyers to the party in power. Those who do not have such political affinity although competent are not appointed. Legal Remembrancers Manual clearly forbids appointment of such a lawyer and/or if appointed, removal from his office. The District Judge and the District Magistrate, therefore, are duty bound to see that before any recommendation is not made, or any political affinity. They must also bear in mind that the Manual postulates that any lawyer who is guilty of approaching the authorities would not be entitled to be considered for such appointment.
79. The State, therefore, is not expected to rescind the appointments with the change in the Government, The existing panel of the District Government Counsel may not be disturbed and a fresh panel come into being, only because a new party has taken over change of the Government."
8. It is clear from a combined reading of both the aforesaid judgments of the Supreme Court that with the change of Government, the State can not rescind appointments made without there being cogent or sufficient reason to cancel or withdraw the appointment.
9. The matter was also considered by a Division Bench of this Court in the case of Debiprasad Sharma v. State of M.P. and Ors., M.P. No. 3325 of 1990, decided on 16-9-1992 and subsequently the matter was again considered by a Bench of this Court in the case of Rajendra Tiwari alias Raju (supra). It is now settled in law from a combined reading of the aforesaid judgments that for taking action for terminating the services of a Public Prosecutor or Government Advocate, the State is required to indicate and disclose the reasons. Even if no reason is indicated in the impugned order, the State is duty bound to disclose the reasons if the action is challenged. It has been held by the Supreme Court in the case of Johri Mal (supra) that the State is required to act fairly and reasonably and is required to follow the principles laid down in the Legal Remembrancer's Manual. If it is found that the State does not discharge the duty fairly, the Court can always interfere in the matter. It has been held that the action of the State in such cases is subject to judicial scrutiny on the ground that the same is arbitrary. It is, therefore, clear from the aforesaid that even if the power is vested in the State Government to terminate the term of a Government Advocate or Public Prosecutor, the same has to be done in a just, fair and reasonable manner on reasonable grounds and merely because the Government has changed or that the State Government wants to take action in the matter, the appointment can not be terminated.
10. Considering the case in hand in the back drop of the legal principle as detailed hereinabove, the return filed by the respondents only indicate that the termination is made in view of Clause (2) of the order of appointment (Annexure P-2), dated 27th November, 2002. Apart from the aforesaid, no reason is indicated. There is nothing available on record to indicate that the work of the petitioner was unsatisfactory or that his services were brought to an end keeping in view any public interest or interest of the State involved in the matter. In fact, in the entire return filed by the respondents, no reason has been indicated.
11. Considering the aforesaid aspect of the matter, I am of the considered view that the action in the present case for terminating the term of the petitioner before the period stipulated in the order of appointment without disclosing any reason is nothing but an arbitrary exercise of power, and therefore, the action of the State Government being in violation of Article 14 of the Constitution can not be sustained. That being so, in view of the settled legal principle as indicated hereinabove, the order impugned is unsustainable.
12. Accordingly, the petition is allowed. The impugned order dated 3rd March, 2005(Annexure P-1) is quashed. The respondents are direct to permit the petitioner to continue to render his services as a Special Public Prosecutor till the term stipulated in the order of appointment dated 27th November, 2002 (Annexure P-2) has not been completed or terminated in accordance with law.
13. In the facts and circumstances of the present case as the services of the petitioner have been brought to an end arbitrarily without any reason, petitioner shall also be entitled to the emoluments to which he is legally entitled had his term of office not brought to an end in such manner.
14. Petition stands allowed and disposed of without any order as to cost.
Certified copy as per rules.