Rajasthan High Court - Jaipur
Manak Chand Jain vs State Of Rajasthan And Anr. on 28 May, 1991
Equivalent citations: 1991(1)WLN559
JUDGMENT G.S. Singhvi, J.
1. I have gone through the detailed judgment of my learned brother Mehta, J. and I fully agree with him that a Public Prosecutor does not hold a 'Civil Post' under the Government, but holds a public office and is required to discharge important statutory functions on behalf of the Government, I also fully agree with him that there is no relationship of 'master' and 'servant' between a State and a Public Prosecutor appointed by the State. I also agree with him that the consultation envissaged by Section 24(3) of the Code of Criminal Procedure, 1973 in the matter of appointment of Public Prosecutor must be an effective consultation and the views expressed by the District and Sessions Judge on the merits of candidature of a person whose name has been sent in panel must be sent to the Government by the District Magistrate and the Government must apply its mind to the recommendations of the District & Sessions Judge before appointing a Public Prosecutor. I am in full agreement with Mehta, J. that the Government must not act arbitrarily and must act fairly in the discharge of its public duties and all actions of the State can be tested on the touch stone of Article 14 of the Constitution of India.
2. However, I would like to say few words on the question as to whether the Government is entitled to terminate the tenure of a Public Prosecutor without any cogent reason.
3. Petitioner Manak Chand Jain was appointed as Public Prosecutor by an order dated 18-3-1983 by the Government under Section 24(3) read with Section 24(6) of the Code of Criminal Procedure by relaxing provisions contained in clause (14) of the Law & Judicial Mannual. Term of appointment of the petitioner was extended from time to time and the last extension was made up to June 30, 1993 by order dated 7-2-1990. The District & Sessions Judge, Ajmer issued a notice dated 26-6-1990 inviting applications from those Advocates who wanted to be appointed as Public Prosecutors/Additional Public Prosecutors. The Advocates were directed to submit their names with full particulars by 30th June, 1990. Petitioner Manak Chand Jain apprehended the termination of his service and, therefore, he filed a writ petition on 16th July, 1990 with a prayer that the respondents be restrained from terminating his service as Public Prosecutor, Ajmer before 30th June, 1993. An interim order was passed by the Court against termination of his service. However, the Government was left free to give one month's notice to the petitioner. The Government thereafter issued notice dated 1-9-1990 seeking to terminate the service of the petitioner. The District & Sessions Judge made his recommendations for appointment of Public Prosecutor/Additional Public Prosecutor for the district of Ajmer. In the panel prepared by the learned District & Sessions Judge, the name of the petitioner as well as that of Shri Vasant Vijay Vargiya was included; Learned District & Sessions Judge made very appreciative remarks about the performance and efficiency of the petitioner. He also gave fairly good remarks for Shri Vasant Vijay Vargiya as Public Prosecutor for the district of Ajmer. A detailed reference has been made to the provisions of Rajasthan Law & Judicial Mannual, 1952 and in particular, to the provisions contained in Paragraphs 12, 13, 14, 15 and 16 of the same, which have been referred to by Shri Mehta, J. in his detailed judgment. Reference has also been made to the provisions of Section 24 Cr. P.C.
4. The question as to whether after receiving the panel containing names of the Advocates from the District Magistrate, who is expected to send ft in consultation with the District & Sessions Judge, the Government is entitled to choose any person from the panel for appointment of Public Prosecutor/Additional Public Prosecutor is really of not much significance in the present case. The term of appointment of the petitioner as Public Prosecutor was to last till 30th June, 1993. This was the tenure of appointment of the petitioner as Public Prosecutor. The post of Public Prosecutor for the district of Ajmer was not vacant on 26-6-1990 or earlier to that when the learned District & Sessions Judge had issue notice inviting applications for appointment of Public Prosecutor/Additional Public Prosecutor. The petitioner was very much holding the office of Public Prosecutor. Respondent Government may have some justification in asking the District Magistrate to send panel of the names of the Advocates for appoinment of Public Prosecutor/Additional Public Prosecutor where the terms was going to expire shortly. However, it is not possible to accept that this action of the Government was justified in the case of district of Ajmer. No reason has been disclosed in the return nor could it be found in the file, which was placed before the Court by the learned Advocate General, which warranted action of the Government in calling for the panel of the Advocate for appointment of Public Prosecutor/Additional Public Prosecutor particularly when the petitioner was holding the office of Public Prosecutor. There was no complaint against his working and there was no decision of the Government to remove him from the office.
5. Moreover, the notice of termination issued on 1-9-1990 by which the Government had intimated the petitioner that his service will be terminated at the end of one months' period from the date of service of notice, cannot be sustained in the eye of law. In cases of Public servants when the appointment is made for a fixed tenure, the public servant is entitled to hold the office till expiry of that tenure as has been held by their Lordships of the Supreme Court in Purushottam Dayal Dhingara V Union of India & Ors. , which has been followed by a learned single Judge of this court in Dr. Umraomal V State of Rajasthan (1975 RLW 552). Although the petitioner was not holding a civil post, but nonetheless he was holding a public office and before his tenure, which was to last up to June 30, 1993 could be curtailed, the respondent Governement ought to have given a notice to him containing proposal for terminating his tenure before expiry of the term and there ought to have been good and sufficient reasons for such action of the Government. Rule 16 of the Rajasthan Law & Judicial Mannual, 1952 which contemplates that the Government may at any time and without assigning any reason, dispense with the service of Public Prosecutor after giving him one months' notice, is of non assistence to the respondents. The rules contained in Law & Judicial Mannual are not statutory rules and in any event they cannot whittle down the scope of Article 14 of the Constitution. In all cases, where the State action affects an individual, it is obligatory for the State to record reasons. It may not be necessary in all cases to cmmunicate the reasons for its decision, but the reasons must be recorded by the Government before taking a decision adversely affecting rights of an individual. In Kumari Srilekha V State of U.P. , their Lordships of the Supreme Court had considered the provisions contained in G.O. dated 6th February, 1990 issued by the Government of U.P. after elaborate consideration of the entire law on the subject of scope of power of judicial review and scope of Article 14 of the Constitution of India, the Court held that even in contractual matters the State is bound to act fairly and must not act arbitrarily. In para 33 of the Judgment, which has been referred to by Shri Mehta, J. it has clearly been held that where no plausible reason or principle is indicated nor is it discernible and the impugned State action, therefore, appears to be exfacie arbitrary, the initial burden to prove the arbitrariness is discharged shifting onus on the State to justify its action as fair and reasonable, the burden on the person alleging arbitrariness must be held to be discharged.
6. In the present case, the peittioner has been able to discharge the initial burden by saying that there is no basis for the impugned action of the State to terminate his tenure before 30th June, 1993. The material which has been placed before the court by the learned Advocate General shows that the action to terminate the tenure of the petitioner has been taken with out application of mind. A decision was first taken to call for the fresh panel for appointment of Public Prosecutor/Additional Public Prosecutor. Thus the Government had already decided to terminate the tenure of the petitioner's appointment and the notice issued subsequently on 7-9-1990 was merely a formality, an attempt to fill-in lacuna. No reason has been disclosed as to why the Government had decided to dispense with the service of the petitioner as Public Prosecutor for the District of Ajmer. It must, therefore, be held that the action of the respondent State in passing the impugned order is wholly arbitrary.
7. Consequently, the writ petition is allowed as indicated in the order of Mehta, J.