Madhya Pradesh High Court
Umesh Kumar Sharma vs The State Of Madhya Pradesh on 16 March, 2017
1
HIGH COURT OF MADHYA PRADESH, JABALPUR
SB: HON'BLE SHRI JUSTICE S. K. SETH, J.
W.P. No. 6452/2016
Umesh Kumar Sharma
Versus
State of M.P. and Others
_________________________________________
Shri K.K. Pandey, Advocate for the
petitioner.
Shri Brahmdatt Singh, Government Advocate
for the respondents no.1 and 2.
Shri Anuj Singh, Advocate for respondent
no.3.
________________________________________
O R D E R
(16.03.2017)
1. By this petition, petitioner is assailing the impugned order dated 1.4,2016 issued by the Secretary, Government of M.P., Law & Legislative Department. By the order impugned, respondent No.3 was appointed as Public Prosecutor, Satna and the earlier order dated 15.3.2016 issued in favour of the petitioner was recalled.
22. The challenge to the impugned order is that without following the procedure prescribed under Section 24 of Cr.P.C., the appointment of respondent no.3 has been made. It is alleged that respondent no.3 is junior to the petitioner as both of them were working on the post of Additional Public Prosecutor and as such, he could not have been appointed as Public Prosecutor. It is contended that no reasons have been assigned in the order impugned requiring cancellation of the appointment of the petitioner on the post of Public Prosecutor. It is also alleged that District Judge, Satna never forwarded the name of respondent No.3 and yet he has been appointed Public Prosecutor. It was also alleged that no notice was issued to the petitioner or he was afforded any opportunity before cancellation of his appointment. In support of his submission, counsel for the petitioner has heavily relied on the latest pronouncement of the Supreme Court in the case of State of Punjab Vs. Brijeshwar Singh Chahal AIR 2016 1643.
3. Respondents in their separate returns have contested the claim of the petitioner and it was the case of respondents no.1 and 2 that respondent No.3 was working on the post of Additional Public Prosecutor since 19.11.2004 3 and in support of this contention the order dated 20.10.2004 has been filed as Annexure R/1. Thus, according to the State, the respondent No.3 was senior to the petitioner as Additional Public Prosecutor and has more experience as compared to the petitioner. It was also stated in the return that the appointment of the respondent No. 3 was in accordance with the procedure prescribed in Section 24 Cr.P.C. and the panel of names were forwarded to the State Government by the District Magistrate, Satna in consultation with the Sessions Judge, Satna. The said panel was received by the Government on 13.4.2015. The penal contained the name of the petitioner as well as respondent No.3 and the Head of the Department, (Law Secretary) approved the name of petitioner for appointment on 8.3.2016, pursuant to which the order dated 15.3.2016 was issued by the Government. It was contended that the appointment of the petitioner was purely contractual and it could be terminated at any point of time without assigning any reason. It was also contended that petitioner failed to submit the declaration as per requirement of Rule 18 of the Department Manual of the Law & Legislative Affairs, Department of Government of M.P., therefore, the appointment order dated 15.3.2016 was cancelled on 21.3.2016 and fresh order (impugned) dated 1.4.2016 was issued in 4 favour of respondent no.3. it was also contended that since the name of the petitioner was not notified in the official gazette, it could have been withdrawn at any time.
4. On more or less same lines, the respondent no.3 has defended his appointment order.
5. We have heard rival submissions at length and considered the material placed on record.
6. Before we advert to the merit of the case, it is relevant to point out here that keeping in view the averments made in the return filed on behalf of the State Government, vide order dated 25.1.2017 passed in W.P. No. 10966/2014, the Law Secretary was directed to file a detailed return showing how and in what manner the State Government has complied with the law laid down by the Supreme Court in Ku. Shrilekha Vidyarthi's case - AIR 1991 SC 537 and State of Punjab and another Vs. Brijeshwar Singh Chahal and another- AIR 2016 SC 1629.
7. In Brijeshwar Singh supra the Supreme court held that Fair and realistic assessment, is first and foremost step to be taken by State. It should be fair and reasonable, transparent and credible. There is no gainsaid that if the power to appoint is exercised not because such exercise is called for but because 5 of some extraneous or other reason the legitimacy of the exercise will itself become questionable.
8. No lawyer has a right to be appointed as State Government counsel or as public prosecutor at any level nor does he have a vested right to claim extension in the term for which he/she is initially appointed. All candidates who are eligible for any such appointment can offer themselves for re- appointment or extension in which event their claims can and ought to be considered on their merit uninfluenced by any political or other extraneous consideration. They can at best claim consideration for any such appointment or extension upon expiry of their respective terms. Such consideration shall, however, have to be in accordance with the norms settled for such appointments and on the basis of their inter se merit, suitability and performance if they have already worked as State counsel.
9. A fair, reasonable or non-discriminatory process of appointment of State Counsel is not demanded only by the rule of law and its intolerance towards arbitrariness but also by reason of the compelling need for doing 6 complete justice which the Courts are obliged to do in each and every cause
10. In E P Royappa v. State of Tamil Nadu and Anr. (1974) 4 SCC 3 : (AIR 1974 SC 555), the Supreme Court declared that Article 14 is the genus while Article 16 is a specie and the basic principle which informs both these Articles is equality and inhibition against discrimination. Equality, declared the Court, was antithetic to arbitrariness. The Court described equality and arbitrariness as sworn enemies, one belonging to the rule of law in a republic and the other to the whims and caprice of an absolute monarch. Resultantly if an act is found to be arbitrary, it is implicit that it is unequal both according to political logic and constitutional law, hence violative of Article 14 and if it affects any matter of public employment it is also violative of Article 16. The Court reiterated that Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and inequality of treatment.
11. In Dwarkadas Marfatia v. Board of Trustees of the Port of Bombay 1989 (3) SCC 293 : (AIR 1989 SC 1642), the Supreme Court had an occasion to examine whether Article 14 had any 7 application to contractual matters. The court declared that every action of the State or an instrumentality of the State must be informed by reason and actions that are not so informed can be questioned under Articles 226 and 32 of the Constitution.
12. It is by now, fairly well settled that not only the Government but all public bodies are trustees of the power vested in them and custodians of public interest. Discharge of that trust in the best possible manner is the primary duty of those in charge of the affairs of the State or public body. This necessarily implies that the nature of functions and duties including the power to engage, employ or recruit servants, agents, advisors and representatives must be exercised in a fair, reasonable, non-discriminatory and objective manner. It is also fairly well settled that duty to act fairly and reasonably is a facet of 'Rule of Law' in a constitutional democracy like ours. A long line of decisions of the Supreme Court over the past five decades or so have ruled that arbitrariness has no place in a polity governed by rule of law and that Article 14 of the Constitution of India strikes at arbitrariness in every State action.
813. In S G Jaisinghani v. Union of India AIR 1967 SC 142 7 the Supreme Court held that absence of arbitrary power is the first essential of "Rule of Law" upon which rests our Constitutional system. The Court ruled that in a system governed by rule of law, any discretion conferred upon the executive authorities must be confined within clearly defined limits. The Court quoted with approval, the following observations of Douglas J. in United States v. Wunderlick 1951 342 US 98:96 Law Ed 113:
"Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler... Where discretion is absolute, man has always suffered."
14. Now let us examine the facts of the case in hand. From the perusal of order-sheets, it is clear that the affidavit has been filed only on 7.3.2017 of Shri Amitabh Mishra, Secretary, Law Department, only when the order was passed directing Secretary, Law Department to remain present in the Court to explain why detailed return has not been filed. Despite this order, no detailed return was filed by the Government. Only affidavit of Mr. Mishra is on record wherein instead of showing how the Government 9 has complied with the law laid down by the Supreme Court in the cases no Shrilekha Vidyarathi and Brijeshwar Singh Chahal (supra), a feable effort was made to explain what was laid down by their Lordships of Supreme Court in the said two cases.
15. Now coming to the merits of the case, the State Government in its reply has not assigned any reason for cancellation of order dated 15.3.2016 and what has been stated, we think it appropriate to reproduce it here for ready reference:-
" 5. The answering respondents humbly submit that before the petitioner could give a declaration in writing in terms of the aforesaid rule, on 21.3.2016 order dated 15.3.2016 was cancelled by the Head of the Department for unavoidable reasons and approval was given for appointment of respondent no.3 as Public Prosecutor.
6. The answering respondents say and submit that the aforesaid decision was taken at the nascent stage, i.e. within a period of 13 of the earlier decision, the approval of another candidate was from the same panel was forwarded by the District Magistrate as per Section 24 Cr.P.C. probably for the reasons that 10 respondent No. 3 had been continuously working as an Additional Public Prosecutor before the petitioner was appointed as such and was having more experience as an Additional Public Prosecutor. " (Emphasis added)
16. The return does not spell out what were the unavoidable reasons or probable cause. The stand of the Government is delightfully vague. The contention that the petitioner has not given declaration required under Rule 18 of Law Department Manual and his name was not notified in the official Gazette, in the opinion of this Court, this is nothing but an attempt to eye wash to justify cancellation within a period of 13 days from the date of appointment order. The affidavit also does not disclose what were the unavoidable reasons which required cancellation of the petitioner's appointment after due approval by Law Secretary. Why these factors were not kept in view at the time of appointment of respondent No.3. No reason is set out what compelled the Law Secretary to change his mind to cancel the appointment order. It is apparent that no one thought of once the petitioner was appointed the panel suggest by the District Magistrate got exhausted before issuing the appointment order of respondent No. 3. The Law Secretary should have called for fresh panel. The contention 11 that the contractual appointment could be terminated at any time smacks of arbitrariness which is the antithesis of the right to the eqality.
17. The upshot of the above discussion is that for a fair and objective system of appointment, there ought to be a fair and realistic assessment of the requirement, for otherwise the appointments may be made not because they are required but because they come handy for political aggrandisement, appeasement or personal benevolence of those in power towards those appointed. The dangers of such an uncanalised and unregulated system of appointment, it is evident are multi- dimensional resulting in erosion of the rule of law, public faith in the fairness of the system and injury to public interest and administration of justice.
18. In view of the above discussion and on the anvil of test laid down by the Supreme Court, we are unable to sustain the order impugned and would have had no hesitation to set aside it but for the fact the appointment of respondent No. 3 is coming to an end on 31.3.2017. We therefore direct the authorities to draw a fresh panel of lawyers in terms of the guidelines laid down by the Supreme Court in Ku. Shrilekha Vidyarthi's case - AIR 1991 SC 12 537 and State of Punjab and another Vs. Brijeshwar Singh Chahal and another- AIR 2016 SC 1629 and thereafter appoint Public prosecutor from the empanelled advocate found most suitable on merit for the job. The writ petition is accordingly stands disposed off with no orders as to cost.
19. Ordered accordingly.
(S.K.Seth) J U D G E rao