Andhra Pradesh High Court - Amravati
S.Siva Rama Krishna Prasad vs The Government Of Andhra Pradesh on 19 December, 2019
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
WRIT PETITION Nos.16406 & 17993 OF 2019
COMMON ORDER:
Since the cause of action for all the petitioners and relief is common, questioning the Circular Memo, therefore, the petitioners filed these petitions since their rights are adversely affected. Hence, I find it expedient to decide all the petitions by common order and W.P No.16406 of 2019 is taken as a leading petition. W.P.No.16406 of 2019 This writ petition is filed questioning the action of the State Government vide HOM01-CRTS0PROE/4/2019 COURTS-A, Government of Andhra Pradesh Home (COURTS.A) Department dated 18.09.2019 (hereinafter called as 'Circular Memo') for 164 Sessions Courts in the State, from the concerned District Magistrates under Section 24(4) of Cr.P.C and consequential letters addressed by the third respondent to all the District Collectors & Magistrates, requesting for compliance of the Circular Memo as arbitrary, against the principles of natural justice, illegal, violative of Articles 12, 14, 15, 16, 21 and 311 of the Constitution of India.
All the petitioners are the Public Prosecutors/Additional Public Prosecutors duly appointed by the State Government, for the respective Courts in the respective Districts as per Section 24(4) of Cr.P.C under separate Government Orders. Their respective existing posts and status are detailed in the table given hereunder:
MSM,J 2 W.P.Nos.16406 & 17993 of 2019 Description of Court Details of appointment End of the S.No. Description of incumbent tenure period Principal District & Sessions Judge's G.O.Rt.No.266 12.03.2022 S Siva Rama Krishna 1 Court, Ongole, Prakasam District date 06.03.2019 Prasad, Public Prosecutor Took charge on 13.03.2019 For the cases of A.P. Protection of G.O.Rt.No.525 28.05.2022 G Rajeswara Rao, Spl. Depositors of Financial date 23.05.2019 2 Public Prosecutor-cum- Establishment Act, 1999, in the VIII Took charge on 29.05.2019 Spl. Govt. Pleader Addl. District & Sessions Judge's Court, Vijayawada, Krishna For the Court of II Additional District G.O.Rt.No.264 07.03.2012 M Surendranath Reddy, 3 Judge, Proddatur, YSR District date 06.03.2019 Addl. Public Prosecutor Took charge on 08.03.2019 II Addl. District & Sessions Court, G.O.Rt.No.262 07.03.2012 E Rajasekhar, 4 Hindupur, Anantapuram District date 06.03.2019 Addl. Public Prosecutor Took charge on 08.03.2019 Court of VII Addl. District & Sessions G.O.Rt.No.106 14.02.2022 Lam China Israel 5 Judge, Vijayawada, Krishna District date 31.01.2019 Addl. Public Prosecutor Took charge on 15.02.2019 Family Court-cum-VII Addl. District & G.O.Rt.No.249 06.03.2022 V Thirupathi Naidu 6 Sessions Judge's Court, date 05.03.2019 Addl. Public Prosecutor Anantapuramu Took charge on 07.03.2019 Principal District & Sessions Judge G.O.Rt.No.203 18.02.2022 D Prabhakar 7 Court, Eluru, West Godavari District date 15.02.2019 Public Prosecutor Took charge on 19.02.2019 Court of III Addl. District & Sessions G.O.Rt.No.194 18.02.2022 T Lakshmi Narayana 8 Judge, Rajampet, YSR District date 14.02.2019 Addl. Public Prosecutor Took charge on 19.02.2019 Court of IV Add. District & Sessions G.O.Rt.No.192 20.02.2022 Shaik Rafee Malik 9 Judge, (Fast Track), Nellore, SPSR date 14.02.2019 Addl. Public Prosecutor Nellore District Took charge on 21.02.2019 Court of XIV Addl. District & Sessions G.O.Rt.No. 189 19.02.2022 A Mallikarjuna Rao 10 Judge, Vijayawada, Krishna District date 14.0.2019 Addl. Public Prosecutor Took charge on 20.02.2019 Court of Asst. Sessions Judge, Gudur, G.O.Rt.No. 188 14.02.2022 K Vasantha Kumar 11 SPSR Nellore date 14.02.2019 Addl. Public Prosecutor Took charge on 15.02.2019 Court of III Addl. District & Sessions G.O.Rt.No. 151 10.02.2022 M V Vijaya Kumar 12 Judge, Vijayawada, Krishna District date 07.02.2019 Addl. Public Prosecutor Took charge on 11.02.2019 Asst. Sessions Court, Proddatur, YSR G.O.Rt.No. 149 09.02.2022 G Chowdu Reddy 13 District date 07.02.2019 Addl. Public Prosecutor Took charge on 10.02.2019 Court of II Addl. Asst. Sessions Judge G.O.Rt.No. 119 06.02.2022 Madduthi Swathi 14 (Fast Track), Guntur Town & District. date 01.02.2019 Addl. Public Prosecutor Took charge on 07.02.2019 Court of V Addl. Asst. Sessions Judge, G.O.Rt.No. 115 06.02.2022 M V V Satyanarayana 15 Vijayawada, Krishna District date 01.02.2019 Addl. Public Prosecutor Took charge on 07.02.2019 Court of XV Addl. District & Sessions G.O.Rt.No. 50 22.01.2022 D Suryanadh 16 Judge, Nuzvid, Krishna District date 17.01.2019 Addl. Public Prosecutor Took charge on 23.01.2019 Court of XVI Addl. District & Sessions G.O.Rt.No. 49 22.01.2022 Y Babu Rao 17 Judge, Nandigama, Krishna District date 17.01.2019 Public Prosecutor Took charge on Court of X Addl. District & Sessions G.O.Rt.No. 48 29.01.2022 K Kasi Viswanath 18 Judge (Fast Track), Gurazala, Guntur Date 17.01.2019 Addl. Public Prosecutor District Took charge on 30.01.2019 Addl. Asst. Sessions Judge Court, G.O.Rt.No. 39 22.01.2022 Ch Anjaneyulu 19 Narasaraopet, Guntur Distict date 11.01.2019 Addl. Public Prosecutor Took charge on 23.01.2019 Court of XII Additional District & G.O.Rt.No. 1106 11.12.2021 K Hariprasad 20 Sessions Judge (Fast Track) Court, date 10.12.2018 Addl. Public Prosecutor Vijayawada, Krishna District Took charge on 12.12.2018 Court of III Additional District & G.O.Rt.No. 1067 28.11.2021 B Nagalingam 21 Sessions Judge (Fast Track), date 27.11.2018 Addl. Public Prosecutor Anantapuramu Took charge on 29.11.2018 MSM,J 3 W.P.Nos.16406 & 17993 of 2019 Court of I Addl. Asst. Sessions Judge, G.O.Rt.No. 1060 27.11.2021 D Ravi Kiran 22 Vijayawada, Krishna District date 26.11.2018 Addl. Public Prosecutor Took charge on 28.11.2018 Family Court-cum-III Addl. District & G.O.Rt.No. 1056 30.11.2021 Kalisetty Ravi Babu 23 Sessions Court, Vizianagaram date 26.11.2018 Addl. Public Prosecutor Took charge on 31.11.2018 Court of Asst. Sessions Judge, Darsi, G.O.Rt.No. 1055 30.11.2018 Veerapaneni Ranga 24 Prakasam District date 23.11.2018 Addl. Public Prosecutor Took charge on 01.12.2018 Court of Asst. Sessions Judge, G.O.Rt.No. 1045 25.11.2021 Mannem Satya Narayana 25 Markapur, Prakasam District date 16.11.2018 Addl. Public Prosecutor Took charge on 26.11.2018 Family Court-cum-III Addl. District & G.O.Rt.No. 1032 17.11.2021 P Anjani Kumar 26 Sessions Judge Court, Srikakulam date 13.11.2018 Addl. Public Prosecutor Took charge on 18.11.2018 IV Addl. District & Sessions Judge's G.O.Rt.No. 994 01.11.2021 G Nagamuni 27 Court, Kurnool, Kurnool District date 01.11.2018 Addl. Public Prosecutor Took charge on 02.11.2018 Court of III Addl. Asst. Sessions G.O.Rt.No. 959 22.10.2021 D Sambasiva Rao 28 Judge, Vijayawada, Krishna District date 22.10.2018 Addl. Public Prosecutor Took charge on 23.10.2018 Court of XI Addl. District & Sessions G.O.Rt.No. 958 23.10.2021 K Ravi 29 Judge, Gudivada, Krishna District date 22.10.2018 Public Prosecutor Took charge on 24.10.2018 VI Addl. District & Sessions Court G.O.Rt.No. 891 27.09.2021 Katta Kalidas 30 (Fast Track), Guntur Town & District date 27.09.2018 Addl. Public Prosecutor Took charge on 28.09.2018 IV Addl. Asst. Sessions Court, G.O.Rt.No. 807 05.09.2021 M Chandra Kumari 31 Vijayawada, Krishna District date 29.08.2018 Addl. Public Prosecutor Took charge on 06.09.2018 Court of Asst. Sessions Judge, Kadiri, G.O.Rt.No. 806 30.08.2021 B Rajendra Naidu 32 Anantapuram District date 29.08.2018 Addl. Public Prosecutor Took charge on 31.08.2018 Court of I Addl. District & Sessions G.O.Rt.No. 479 29.06.2021 K Tirumala Rao 33 Judge, Srikakulam date 21.06.2018 Addl. Public Prosecutor Took charge on 30.06.2018 Court of Asst. Sessions Judge, G.O.Rt.No. 438 12.06.2021 Chaganti Subba Rao 34 Parchur, Prakasam District date 08.06.2018 Addl. Public Prosecutor Took charge on 13.06.2018 Court of II Addl. Asst. Sessions Judge, G.O.Rt.No. 310 26.04.2021 Kolusu Usha Rani 35 Vijayawada, Krishna District date 25.04.2018 Addl. Public Prosecutor Took charge on 27.04.2018 Annepu Bhuvaneswara Court of Principal Asst. Sessions G.O.Rt.No. 228 31.03.2021 36 Rao Judge, Srikakulam, Srikakulam date 27.03.2018 Addl. Public Prosecutor District Took charge on 01.04.2018 Ande Sree Rama Krishna Court of Asst. Sessions Judge, G.O.Rt.No. 157 26.02.2021 37 Murthy Avanigadda, Krishna District date 27.02.2018 Addl. Public Prosecutor Took charge on 27.02.2018 Court of XIII Addl. District & Sessions G.O.Rt.No. 54 24.01.2021 Dharanikota Srinivasa Rao 38 Judge (Fast Track Court), Vijayawada, date 24.01.2018 Addl. Public Prosecutor Krishna District Took charge on 25.01.2018 Court of Asst. Sessions Judge, G.O.Rt.No. 53 31.01.2021 B Vijaya Kumar 39 Anantapur Town & District date 23.01.2018 Addl. Public Prosecutor Took charge on 01.02.2018 Court of District & Sessions Judge, G.O.Rt.No. 10 04.01.2021 Kaila Rama Krishna 40 Machilipatnam, Krishna District date 03.01.2018 Public Prosecutor Took charge on 05.01.2018 Court of Principal District & Sessions G.O.Rt.No. 714 05.09.2020 Sreeram Rajeev Anand 41 Judge, Guntur Town & District date 29.08.2017 Public Prosecutor Took charge on 06.09.2018 Court of V Addl. District & Sessions Judge G.O.Rt.No. 934 30.11.2020 Abbineni Vijay Kumar (Fast Track Court), Eluru, West Godavari date 30.11.2017 42 Addl. Public Prosecutor District Took charge on 01.122.2017 Court of Addl. Asst. Sessions Judge, G.O.Rt.No. 752 24.09.2017 R Karuna Jyothi Kurnool Town & District date 15.09.2017 43 Addl. Public Prosecutor Took charge on 25.09.2017 MSM,J 4 W.P.Nos.16406 & 17993 of 2019 Court of Asst. Sessions Judge, G.O.Rt.No. 745 20.09.2020 M Bhaskara Rao 44 Nuzvid, Krishna District date 13.09.2017 Addl. Public Prosecutor Took charge on 21.09.2017 Court of Addl. Asst. Sessions Judge G.O.Rt.No. 603 27.07.2020 S Vasudeva Rao 45 (Fast Track Court), Rajampet at date 13.07.2017 Addl. Public Prosecutor Badvel, YSR Kadapa District Took charge on 28.07.2017 Court of Senior Civil Judge, G.O.Rt.No. 324 23.04.2020 Kannedhara Hanumaiah 46 Sattenapalli, Guntur District date 21.04.2017 Addl. Public Prosecutor Took charge on 24.04.2017 Smt. Katta Venkata Vara Court of I Addl. District & Sessions G.O.Rt.No. 759 20.09.2020 47 Lakshmi Judge, Guntur Town & District date 18.09.2017 Addl. Public Prosecutor Took charge on21.09.2017 Court of II Addl. District & Sessions G.O.Rt.No. 840 31.10.2020 A Narayana Raju 48 Judge, Parvathipuram, Vizianagaram date 26.10.2017 Addl. Public Prosecutor District Took charge on 01.11.2017 Court of IV Addl. Asst. Sessions G.O.Rt.No. 13 07.01.2021 Smt. Madala Adi Lakshmi 49 Judge, Guntur Town & District date 04.01.2018 Addl. Public Prosecutor Took charge on 08.01.2018 Doddaka Brahmananda Court of Asst. Sessions Judge, G.O.Rt.No. 328 27.04.2020 50 Rao Mangalagiri, Guntur District date 24.04.2017 Addl. Public Prosecutor Took charge on 28.04.2017 Before completion of their tenure/period as Law Officers, shown in the last column of the table, the impugned Circular Memo is issued by the first respondent. The petitioners Law Officers (hereinafter referred as 'Public Prosecutors' for convenience) were statutorily appointed by the State Government for the Courts in the Districts in the State under Section 24(4) of Criminal Procedure Code (for short ' Cr.P.C') by way of Government Order. The stipulated period of the Law Officers by such Government Order is three years, from the date of taking charge of the office. The post of Public Prosecutor in a settled interpretation was termed by the Higher Courts including the Supreme Court as a Public Officer and that the corresponding post to a Civil Post and was accordingly protected by the law, from an arbitrary action of the Government, if any, such as premature termination, before completion of the said tenure/period.
But, due to change of political party n power in the State in the recent election, issued the impugned Circular Memo which is MSM,J 5 W.P.Nos.16406 & 17993 of 2019 arbitrary and flagrant violation of the provisions of Constitution of India, whereby, the State Government has expressed its reprehensible decision by implication to curtail the said tenure and overthrow the existing incumbent Law Officers i.e. the petitioners even before the completion of their tenure, without any reason, discriminatorily, irrationally and in violation of the principles of natural justice, jeopardizing the life of dignity and meaningful liberty of the petitioners and their career, violating Articles 14, 15, 16 and 21 of the Constitution of India. Pertinently it is apparent from the Circular Memo that the contempt of the present ruling party is against the State acts of the previous Government and in such a contamination and discrimination, the petitioners were also unfortunately targeted and such act is unconstitutional.
The act of the Government in calling for fresh panels from the Advocates for appointment as Law Officers i.e. Public Prosecutors is irrational discriminatory and arbitrary exercise of power is evident from the fact that the present Government has appointed one Sri V. Lokanadha Reddy as Additional Public Prosecutor for the court of I Additional District and Sessions Judge, Chittoor under G.O.Rt. No.752 dated 03.09.2019 and Sri G. Ravi Kumar, is appointed as Additional Public Prosecutor, for the Court of Assistant Sessions Court, Atmakur of Kurnool District under G.O.Rt No.662 dated 07.08.2019 and they were not subjected to Circular Memo and it is learnt that corresponding telephonic instructions to the concerned District Collector and Magistrate were given by the third respondent to exempt the said newly appointed Public Prosecutors from the Circular Memo. It is contended that the Circular Memo is liable to be MSM,J 6 W.P.Nos.16406 & 17993 of 2019 quashed for another reason that, fresh appointment of Public Prosecutors for all the Sessions Courts in the State is called, no proceedings for termination of the present existing incumbent tenure Public Prosecutors is exercised, before issuance of the Circular Memos. The present petitioners were appointed as Public Prosecutors for the respective Districts in the State based on the merits, strictly within the spectrum of Sections 24(5), (6), (7), (8) and (9) of Cr.P.C which deals with such appointment. The executive instructions dealing with such Public Prosecutors is G.O.Ms.No.187 dated 06.12.2000 of Andhra Pradesh Law Officers (Appointment and Conditions of Service) Instructions, 2000. The remuneration, for the said Public Prosecutors by the State Government is as per G.O.Rt.No.975, Home (Courts A) Department dated 26.10.2018. The Andhra Pradesh Law Officers (Appointment and Conditions of Service) Instructions, 2000, has no statutory force and it is a mere executive guidelines and it illuminates that the selection of the law officer, shall be based primarily on merit and suitability and reference in Instruction Nos. 3,5 & 7. Thus, the position and status of a Public Prosecutor or a Government Pleader appointed by the State Government is public nature and the corresponding office is a public office and is a civil post. The petitioners referred various judgments reported in Mukul Dalal v. Union of India1, Hitendra Vishnu Thakur v. State of Maharashtra2, Rajendra Tiwari @ Raju v. State of Madhya Pradesh3, Pirthwinath Chowdhry v. State of 1 (1988) 3 SCC 144 at para 6 2 (1994) 4 SCC 602 3 2005 (1) MPLJ 204 MSM,J 7 W.P.Nos.16406 & 17993 of 2019 Uttar Pradesh4, Vijay Shankar Mishra v. State of U.P and others5, Uday Nath Roy v. State of Bihar6 and Kumari Shrilekha Vidyarthi v. State of U.P7 and in view of the law declared in the judgments referred supra, learned counsel for the petitioners contended that the Circular Memo issued by the first respondent is illegal, since it is an obvious exercise by the Government for appointment of Law Officers of their choice.
The petitioners also filed various G.Os appointing these petitioners mentioned in different columns of the table and also the letter submitted to the concerned taking charge of the office of Public Prosecutor in different districts by different officers and the details are already mentioned in the table.
In view of the law declared in the judgments referred supra, the Circular Memo issued by the first respondent is illegal, since it is an obvious exercise of the Government for appointment of Law Officers only to replace the petitioners from respective positions which is before completion of their respective tenure and that the Circular Memo adversely affects the legitimate rights of these petitioners. The petitioners were neither terminated nor were put to any notice before issuing the impugned Circular Memo. The said Circular Memo is comprehended that it is manifestly given arbitrarily and illegally, under the evil influence of changed political scenario, in the recent assembly public elections in 2019, wrongly wrapping up the petitioners, with a political mask and it is an arbitrary and illusory racist discrimination. Therefore, the Circular Memo is 4 AIR 1959 All 169 5 1999 Crl.LJ 521 6 1993 (1) BLJR 242 7 1991 AIR 537 MSM,J 8 W.P.Nos.16406 & 17993 of 2019 untenable for any reason of legal prudence and the Government has no authority to issue the impugned Circular Memo and remove the law officers, with such an arbitrary and malicious discrimination and such action of the State Government in calling for fresh for panels from the Collectors, even before expiry of tenure of these petitioners. Therefore, the Court by exercising power under judicial review under Article 226 of the Constitution of India can set-aside such arbitrary exercise of power and sought to set-aside the same by issuing Writ of Mandamus.
Respondent Nos. 1 and 3 filed counter affidavit denying the material allegations made in the affidavit, contending that the writ petition is liable to be dismissed in limini, as no cause of action arose for the writ petitioners so as to invoke the jurisdiction of this Court under Article 226 of the Constitution of India, seeking judicial review of Circular Memo dated 18.09.2019, wherein, instructions were issued for preparation of fresh panel for appointment of public prosecutors.
It is submitted in the counter affidavit that, the petitioners were statutorily appointed for full three years from the date of taking charge of their official position is quite misconceived. At this stage, it is relevant to refer to Section 24 of Cr.P.C, which provides for appointment of Public Prosecutors and also Additional Public Prosecutors for the District and that, their appointment is only contractual and the same cannot be construed as statutory in nature. In M.T. Khan v. State of Andhra Pradesh8, the Supreme Court had an occasion to deal with similar issue relating to 8 (2004) 2 SCC 267 MSM,J 9 W.P.Nos.16406 & 17993 of 2019 appointment of legal practitioner by the Government may be the subject matter of legislature. The State Government by amending the provisions of Sections 24 and 25 of Cr.P.C may make rules regulating appointment of Public Prosecutor and Additional Public Prosecutor, such law can also be made for regulating appointment of other states. It is further held that in the absence of any legislation in this behalf, various States have laid down executive instructions in exercise of its jurisdiction under Article 162 of the Constitution of India. Therefore, the State is competent to appoint a Lawyer of its choice and designate them in such manner, as it deems fit and proper.
The State of Andhra Pradesh issued executive instructions called as Andhra Pradesh Law Officers (Appointment and Conditions of Service) Instructions, 2000, vide G.O.Ms.No.187 dated 06.12.2000 to regulate the appointment of Law officers and the conditions of such appointment. The term of Law Officer is for a period of three years, as spelled out under Instruction No.8 of the said instructions and it is conditioned by Clause No.9. Clause No.9 interalia stipulates that notwithstanding anything contained in Instruction No.8, either the Government or the Law officer may terminate the engagement with one month's notice or payment of honorarium in lieu of one month's notice. In the teeth of the said instructions, the term of Law Officer is terminable at the option of either of the parties. The word 'engagement' was consciously used Clause No.9 of the said instructions indicates nature of appointment of Law Officer.
It is submitted by the respondents in the counter affidavit that the contention of the petitioners that the impugned Circular Memo is MSM,J 10 W.P.Nos.16406 & 17993 of 2019 arbitrary, malicious and having no legal foundation and calling for fresh panels for appointment of Public Prosecutors under Section 24 of Cr.P.C cannot be considered, termed as arbitrary and the said Circular Memo was issued in exercise of the power conferred on the Government calling for fresh panels would involve the process of claims of all eligible persons including the present holders of the post and the same cannot be portrayed as arbitrary and violative of Article 14 of the Constitution of India.
It is also submitted in the counter that the petitioners have chosen to invoke the jurisdiction of this Court and filed the present petition in anticipation that their services will be terminated once fresh panels are taken up and cannot main the writ petition so as to seek annulment of government memo which was issued in exercise of executive power. The contention of the petitioners that issue of Circular Memo is violative of Article 14 of the Constitution of India is contrary to the judgment of the apex Court referred in the writ affidavit itself and this contention is without any merit and logic. The ratio of the judgment referred in the writ petition has no application to the present facts of the case and thereby the same cannot be set- aside.
It is further contended that, the term of Law officers is contractual and it depends upon the trust and confidence and as such the tenure of Law officer can be terminable at the opinion of the State by way of termination simplicitor. However, in the instant case, no such action was taken so as to decide the validity of the action in the light of Article 14 of the Constitution of India. Therefore, the writ MSM,J 11 W.P.Nos.16406 & 17993 of 2019 petition is liable to be dismissed at the threshold and prayed for dismissal of the writ petition.
During hearing, Sri T. Sreedhar, learned counsel for the petitioners contended that the appointment of petitioners is statutory in nature for three years as per the executive instructions. If, they were terminated from the office of Public Prosecutor prematurely, without any unreasonable cause, it will affect their carrier and it is a stigma and they cannot live with dignity of life as Advocates, therefore, it is hit by Article 21 of the Constitution of India. It is further contended that, Paragraph No.3 of the Circular Memo was issued in terms of G.O.Ms.No.187 dated 06.12.2000 calling for fresh panels for appointment of prosecuting officers for all Courts in the State within twenty days. This act without terminating the services of the incumbent officers of the petitioners herein is contrary to Rule 5 of G.O.Ms.No.187 dated 06.12.2000. It is also contended that appointment of these petitioners is by government order and unless their appointment is terminated by following due process of law, calling for fresh panels is premature. No notice prior to issue of such Circular Memo was issued to these petitioners and no process was undertaken to terminate the petitioners. Therefore, issue of such Circular Memo calling for fresh panels is an arbitrary and capricious act of the State.
The specific contention raised by the learned counsel for the petitioners in Paragraph No.11 of the counter affidavit filed by Respondent Nos. 1 and 3 is that, they disclosed their intention behind issuing such Circular Memo to sack these petitioners prematurely and such memo without terminating the engagement of MSM,J 12 W.P.Nos.16406 & 17993 of 2019 services of these petitioners is contrary to G.O.Ms.No.187 dated 06.12.2000. Even to call for such fresh panels, there must be some reason, but without assigning any reason, Circular Memo was issued though the petitioners' tenure was not expired and thereby the Circular Memo was issued without any reason, more particularly, rational reason in issuing memo. But, it is explicit from the material that they intended to terminate all the petitioners and other Public Prosecutors in the State who are engaged in 164 Courts. Merely because political party in power has changed, issue of Memo with an intention to terminate the services of these petitioners or disengaging their services without following any procedure apprehending that they may not defend the illegal acts and the supporters of the political party in power, being the Public Prosecutors is a matter of serious concern and such arbitrary exercise of power can be declared as illegal. Merely because, apprehension of the State that the petitioners may not defend the acts and supports of the political party in power, the petitioners cannot be removed from their respective offices as Public Prosecutors and Additional Public Prosecutors on tenure basis, as they were appointed based on merit and discharging their duties as Advocates. Learned counsel for the petitioners relied on several judgments referred supra and on the principles laid down in the above judgments, learned counsel for the petitioners contended that Circular Memo is arbitrary, illegal and violative of Articles 12, 14, 15, 16, 21 and 311 of the Constitution of India and requested to issue a direction as stated supra.
Learned Advocate General for the State mainly contended that, when State is vested with the power to engage any counsel of its MSM,J 13 W.P.Nos.16406 & 17993 of 2019 choice and more particularly, when the instructions permits appointment or termination of services of Public Prosecutors or disengaging services of Public Prosecutors, the action of the State cannot be declared as arbitrary and apart from that, the writ petition is premature for the reason that the Circular Memo is only an interdepartmental communication between two departments or between two officials of the same department and it does not amount to termination of the services in any view. Therefore, the apprehension of these petitioners is not based on any reason. More so, the engagement of professional services of advocates either as Public Prosecutors or Government Pleaders is based on trust and their services can be terminated subject to the instructions vide G.O.Ms.No.187 dated 06.12.2000 and requested to dismiss the writ petitions.
Considering rival contentions, perusing the material available on record, the point that arose for consideration is:
"Whether calling for fresh panels for appointment of Public Prosecutors in 164 Courts in the State before completion of tenure of the petitioners by the first respondent is illegal and arbitrary. If so, whether Circular Memo be quashed?"
P O I N T:
The petitioners were appointed as Public Prosecutors/ Additional Public Prosecutors in different Courts of the State as shown in the table and tenure of these petitioners would expire on different dates shown in the last column of the table. They were all appointed by Government Order shown in Column No.4 of the table.
MSM,J 14 W.P.Nos.16406 & 17993 of 2019 The main contention of the learned counsel for the petitioners is that, calling for fresh panels by issuing Circular Memo impugned in this writ petition dated 18.09.2019 is nothing but an arbitrary exercise of power, terminating the services of these petitioners as Public Prosecutors/Additional Public Prosecutors in different Courts shown in the table before expiry of the term or tenure of three years, as prescribed under Instruction No.8 of Andhra Pradesh Law Officers (Appointment and Conditions of Service) Instructions, 2000, vide G.O.Ms.No.187 dated 06.12.2000.
The appointment of these petitioners is governed by Section 24 of Cr.P.C. A specific procedure is prescribed under the instructions referred above, as to how panel is to be called for. The very basis for recommendation by the District Collector-cum-District Magistrate to make recommendation of advocates consists of a panel and it must be in consultation with the Sessions Judge of the District. Therefore, the basic idea of consultation with the Sessions Judge is to assess the knowledge and honesty of the advocates proposed to be appointed or recommended for the office of the Public Prosecutor/Additional Public Prosecutor, Assistant Public Prosecutor. The petitioners are the Law Officers and they should be law knowing persons but should not be political leader knowing persons. The word 'Public Prosecutor' is defined under Section 2(u) of Cr.P.C and according to it, 'Public Prosecutor' means any person acting under the directions of a Public Prosecutor and the procedure for appointment of 'Public Prosecutor' is prescribed under Section 24 of Cr.P.C and the same is extracted hereunder:
MSM,J 15 W.P.Nos.16406 & 17993 of 2019 (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.
(2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district or local area.
(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district:
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.
(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-
section (4).
(6) Notwithstanding anything contained in sub- section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre: Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub- section (4). (7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub- section (1) or sub- section (2) or sub- section (3) or sub- section (6), only if he has been in practice as an advocate for not less than seven years.
(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor. (9) For the purposes of sub- section (7) and sub- section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate. The basic requirement for appointment of Public Prosecutor/Additional Public Prosecutor is only recommendation by the District Collector-cum-District Magistrate, in consultation with the Principal District Judge, who is able to assess the knowledge in MSM,J 16 W.P.Nos.16406 & 17993 of 2019 the branch of law and honesty and other character of the person who is to be recommended for appointment for such posts. In the recent past, there is a lot of change in recruitment process, though not on paper. In M. Prakasam v. The Inspector of Police9, the learned Single Judge of the Madras High Court incorporated in the judgment, the reality and observed as follows:
"Law Officer should be law knowing person and not political leader knowing person. Law Officer post is not a political post, but, it is a public post with greater responsibility in the administration of justice. Unless appointment of law officers is made fairly based on the merit, ability and integrity, this kind of petition stating political reasons cannot be avoided. The petition has been filed by the accused to transfer S.C.No.63 of 2014 from the file of learned Principal District and Sessions Judge, Trichy to the file of learned Principal and Sessions Judge, Pudukottai."
The learned Single Judge also went on prescribing the qualifications to be appointed as Public Prosecutor sarcastically while highlighting the importance and role of Public Prosecutor. The learned Single Judge observed as follows:
"The Law Officers are conducting cases on behalf of the State and not at the instance of the ruling Party, or whichever party comes to power. In reality, it is an unwritten rule that whichever party comes to power, that party's Advocates/sympathisers are appointed as Law Officers and sometimes, the appointment of Advocate General and Public Prosecutor of the State is also not an exception to that rule. Integrity, capability, honesty, efficiency, legal acumen of the lawyers have become secondary and loyalty to the party in power gets primacy to the appointment as Law Officers. The following are considered to be the un-written qualifications:
1) The advocates should be Card holders of the concerned Party,
2) They should have taken part in the agitation,protest, Dharna conducted by that Party, 9 Crl.O.P(MD)No.15945 of 2014 & M.P(MD)No.1 of 2015 dated 23.01.2015 MSM,J 17 W.P.Nos.16406 & 17993 of 2019
3) They should have appeared for the party leaders, or party whenever cases are filed against them,
4) They should have appeared before the Courts in which Party leaders have to appear,
5) They should have followed the cases and helped/assisted the Public Prosecutor/Government Pleader, if the Opposite Party Leaders face prosecution,
6) They should have voiced their protest for any resolution being passed in Advocate Association/Bar Association against the ruling Party.
The above qualifications seem to weigh more with any party than the legal acumen and integrity of advocates, to be appointed as Law Officers. It is an open secret that many advocates run behind the leaders to become law officers. It only makes the party leaders to treat the said advocates cheaply even as law officers. If the Party Leaders are convinced or satisfied that the concerned advocate is a Loyalist to the Party and top Leaders, he would be considered for appointment as Law Officer. However, it does not mean that non-meritorious Law Officers are alone appointed. Most of the Law Officers appointed have been performing well.
It is not always necessary that one should be a Party Loyalist; sometimes, appointments are said to be obtained by the recommendations of family members and friends of the top Leaders. This is how the appointment of Law Officers, on behalf of the State, is being made right from High Court to Lower Courts. Therefore, it is not a surprise that the rate of conviction in criminal cases has become low for the past 20 years and most of the Government matters, where the Government is a party go undefended, leading to passing of exparte orders."
The learned Single Judge of Madras High Court expressed his opinion for failure of criminal prosecution in such cases where sometimes, appointments are said to be obtained by the recommendations of family members and friends of the top Leaders. Therefore, the rate of conviction in criminal cases has become low on account of political interference in appointments of Public Prosecutors by the political party in power in the State.
The judgment of Madras High Court in M. Prakasam v. The Inspector of Police (referred supra) is a fine example to show as to MSM,J 18 W.P.Nos.16406 & 17993 of 2019 how the political party influence works on the Public Prosecutor even in discharging their duties while conducting prosecutions. To avoid such influence, there must be a fair procedure for appointment of Public Prosecutors without any political interference, more particularly in appointment of tenure Public Prosecutors in various Courts of the State.
In July, 2006, The Law Commission of India in its 197th Report, made certain recommendations for appointment of Public Prosecutors and suggested the following recommendations:
"(i) Making of appointment of Public Prosecutors/ Additional Public Prosecutors only from amongst persons constituting regular Cadre of Prosecuting Officers - in terms of Section 24(6) of the Code of Criminal Procedure, 1908 (sic 1973), as originally legislated by Parliament- may need to be legislatively restored to override various State Amendments.
Further, a time limit may need to be prescribed by law to require creation of such cadres in a definite timeframe, while simultaneously incorporating a 'sunset clause' in Section 24(4) of the Cr.P.C.
(ii) Requirement of consultation with Sessions Judge u/s. 24(4) may need be resorted to override State Amendment(s).
(iii) Other institutional mechanism(s) and safeguard(s) in terms of eligibility requirement, assessment of past performance, adequate tenure, etc. could be considered to reduce the scope for arbitrariness in appointments."
If, these recommendations made by the Law Commission, issued from time to time are followed, atleast, the Government can maintain fairness in appointment of Public Prosecutors. In major cases, either before the High Court or before the Trial Court, where a Government is a party, the Government is losing the case for one reason or the other; and the State is also unable to frame a clear litigation policy and implement the same in defending the State by the Public Prosecutors or Government Pleaders. Though the State of MSM,J 19 W.P.Nos.16406 & 17993 of 2019 Andhra Pradesh formulated a State Litigation Policy, but, it is not working effectively.
The State is expected to be a model litigant maintaining ethical standards in prosecuting the litigation being a compulsive litigant. The Government of India in view of certain observations made in various Judgments by the Apex Court in State of Punjab v. M/s.Geeta Iron & Brass Works Ltd.,10 and Chief Conservator of Forest v. Collector11 adopted National Litigation Policy, but it did not yield fruitful results and it totally failed. But, the Government of India being a model litigant is under obligation in common law has not always been clear, but the written policies seek to provide clarity and guidance and what conduct is required of a model litigant. Behind each of the duties is an overarching duty to act honestly, fairly, with complete propriety and in accordance with the highest professional standards. It goes beyond the requirement for lawyers to act in accordance with their ethical obligations and merely acting honestly or in accordance with law and court rules. The policies all variously refer to the following specific duties, some of which have long been recognized by the Court:
a) Dealing with claims promptly;
b) Minimising delay in proceedings';
c) Making an early assessment of the prospects of success and
potential liability in claims;
d) Paying legitimate claims without litigation;
e) Acting consistently in the handling of claims and litigation;
10
(1978) 1 SCC 68
11
(2003) 3 SCC 472
MSM,J
20 W.P.Nos.16406 & 17993 of 2019
f) Endeavouring to avoid, prevent or limit the scope of litigation and participating in alternative dispute resolution where appropriate;
g) Missing costs in proceedings;
h) Not taking advantage of a claimant who lacks the resources to litigate a legitimate claim;
i) Not taking technical points unless the agencies interests would be compromised;
j) Not understanding and pursuing appeals unless there are reasonable prospects for success or the appeal is otherwise justified in the public interest; and
k) Apologising when the Government or its lawyers have acted wrongfully or improperly.
These guidelines, as recognized by Common Wealth Countries, the litigation in the courts would be minimized though the Government of India or State adopted Litigation Policy, but it did not serve any useful purpose. Therefore, the Government being litigant is at least expected to follow the ethical issues and practical considerations while dealing with a citizen in litigation before the Court and the government is expected to be honest litigant, to minimize the litigation, The State of Andhra Pradesh also adopted State Litigation Policy dated 30.08.2011 and certain guidelines have been issued with objects mentioned in second para of Litigation Policy. The main objects are to manage and conduct litigation in a coordinated and time bound manner; ensure that strong cases are won and weak cases are not pursued needlessly; reduce over all government litigation in courts thereby providing relief to the judiciary etc., and also issued certain directions to prevent and control avoidable MSM,J 21 W.P.Nos.16406 & 17993 of 2019 litigation and settlement of disputes in alternative dispute resolution system, guidelines for filing of appeals. But without keeping in mind, the litigation policy, framed by State dated 30.08.2011, government agencies and authorities are proliferating the litigation by evasive and un-substantive pleas before court, thereby increasing litigation in the courts, which is contrary to guidelines issued by Apex Court in the judgments referred supra. Thus, to achieve the real object of litigation policy, the procedure must be fair and atleast implementation of Law Commission recommendations would serve purpose to some extent.
The main contention of the learned counsel for the petitioners is that, calling for fresh panels before expiry of tenure of the petitioners as Public Prosecutors is an arbitrary exercise of power and termination from the office of Public Prosecutor and Assistant Public Prosecutor is a dent on the career of the petitioners and it would remain as a stigma throughout their career as an Advocate.
No doubt, termination of these petitioners from the post of Public Prosecutors/Additional Public Prosecutor(s) may mar their career to some extent, but it is only a professional engagement by the State. Merely because it will have its own impact on the career of these petitioners, the Court cannot exercise its power of judicial review in an nonchalant manner.
The power of judicial review by this Court under Article 226 of the Constitution of India can be exercised only certain circumstances which are enumerated in "West Bengal Central School Service MSM,J 22 W.P.Nos.16406 & 17993 of 2019 Commission v. Abdul Halim12" wherein the Apex Court reiterated the following principles of judicial review.
"It is well settled that the High Court in exercise of jurisdiction Under Article 226 of the Constitution of India does not sit in appeal over an administrative decision. The Court might only examine the decision making process to ascertain whether there was such infirmity in the decision making process, which vitiates the decision and calls for intervention Under Article 226 of the Constitution of India.
In any case, the High Court exercises its extraordinary jurisdiction Under Article 226 of the Constitution of India to enforce a fundamental right or some other legal right or the performance of some legal duty. To pass orders in a writ petition, the High Court would necessarily have to address to itself the question of whether there has been breach of any fundamental or legal right of the Petitioner, or whether there has been lapse in performance by the Respondents of a legal duty.
The High Court in exercise of its power to issue writs, directions or orders to any person or authority to correct quasi-judicial or even administrative decisions for enforcement of a fundamental or legal right is obliged to prevent abuse of power and neglect of duty by public authorities.
In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan v. Mallikarjuna reported in AIR 1960 SC 137. If the provision of a statutory Rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari.
The sweep of power Under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse.
However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the 12 2019 (9) SCALE 573 MSM,J 23 W.P.Nos.16406 & 17993 of 2019 grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect."
Therefore, to exercise extraordinary power of judicial review, learned counsel for the petitioners have to satisfy the Court the guidelines laid down in the judgment. The petitioners having been appointed as Public Prosecutors or Additional or Assistant Public Prosecutors in various Courts in the State have no fundamental right of continuation in the same office for a period of three years, as prescribed in Instruction No.8 of Andhra Pradesh Law Officers (Appointment and Conditions of Service) Instructions, 2000, vide G.O.Ms.No.187 dated 06.12.2000 and it is subject to Instruction No.9 which permits the government to disengage the services of an Advocate as a Public Prosecutor with one month's notice or payment of one month honorarium, in lieu of one month's notice. Therefore, the petitioners have no absolute right to continue in the office of Public Prosecutor or Additional Public Prosecutor for the full term of three years, as prescribed under Instruction No.8, since it is always subject to Instruction No.9.
In the present facts of the case, no order was passed terminating all 164 Public Prosecutors or atleast prosecutors who approached the Court, who were appointed on tenure basis. The first respondent called for fresh panels for appointment of Public Prosecutors. The intention of the State is explicit in the Circular Memo that the State is going to appoint Public Prosecutors, terminating the existing Public Prosecutors appointed by the then MSM,J 24 W.P.Nos.16406 & 17993 of 2019 Government in power in the State. But, still, the Circular Memo issued by the first respondent is only an interdepartmental communication, but not an order terminating the services of the petitioners or the Public Prosecutors in the State.
There is a lot of difference between notification and memo. Notification means only notifying particular Act or Rule in the Gazette of State. Only from the date of such publication in the Gazette, the rule enacted is deemed to have been came into force unless the rule otherwise specifies.
A memorandum, more commonly known as memo¸ is a short message or record used for internal communication in a business, and primary form of internal written communication. Therefore, the memo is only internal correspondence between the two branches of the department or two offices, but that is not the communication to the public. Communication to the public is only by way of Gazette notification of the State. The memo cannot be construed as an order, but it is only an interdepartmental communication. Hence, the memo cannot be said to be an executive order, but it is only a communication by the second respondent to the District Collector- cum-District Magistrate.
In Messrs. Ghaio Mal and sons v. State of Delhi and others13, the Supreme Court had an occasion to decide an identical question of issuing memos. The Apex Court while deciding the question as to whether the letter in question was the order of the Chief Commissioner or not, held as follows:
13
AIR 1959 SUPREME COURT 65 MSM,J 25 W.P.Nos.16406 & 17993 of 2019 "In the first place it is an inter-departmental communication. In the second place it is written with reference to an earlier communication made by the Excise Commissioner, that is to say, ex facie, it purports to be a reply to the latter's letter of August 31, 1954. In the third place the writer quite candidly states that he had been " directed to say " something by whom, it is not stated. This makes it quite clear that this document is not the order of the Chief Commissioner but only purports to be a communication at the direction of some unknown person-of the order which the Chief Commissioner had made. Indeed in paragraph 7 of the respondents' statement filed in the High Court on February 2,1955, this letter has been stated to have " conveyed the sanction of the Chief Commissioner of the grant of license to the 5th respondent ". A document which conveys the sanction can hardly be equated with the sanction itself Finally the document does not purport to have been authenticated in the form in which authentication is usually made. There is no statement at the end of the letter that it has been written " by order of the Chief Commissioner ". For all these reasons it is impossible to read this document as the order of the Chief Commissioner."
The letter in question was an inter-departmental communication written with reference to an earlier communication made by the Excise Commissioner. Ex facie, it purported to be a reply to the Excise Commissioner's letter. Hence, the letter is not an order, but only a memo and not required to comply with the requirements under Article 166(2) of the Constitution of India.
In view of the judgment referred above, Circular Memo challenged in the writ petition is not an order of the Government, terminating the services of these petitioners or disengaging their services as prosecutors, without following the procedure prescribed under Instruction No.9 of the Andhra Pradesh Law Officers (Appointment and Conditions of Service) Instructions, 2000, vide G.O.Ms.No.187 dated 06.12.2000. Therefore, a statutory MSM,J 26 W.P.Nos.16406 & 17993 of 2019 interdepartmental correspondence will not give rise to cause of action for filing these writ petitions, since the petitioners statutory right, if any, is not infringed or invaded as on date.
In Kumari Shrilekha Vidyarthi v. State of U.P (referred supra), a Government Order was issued terminating all the Public Prosecutors in the State on account of change of political party in power in the State, without assessing individual capabilities and illegalities, if any committed by them during the tenure of serving as Public Prosecutors. Therefore, the Apex Court heavily laid down in the Government action and concluded that it is an arbitrary exercise of power and set-aside the Government Order, which terminated the Public Prosecutors who were discharging their duties in various Courts of the State, without assessing individual case.
In the present case, through Circular Memo impugned in this writ petition, the services of these petitioners were neither terminated or disengaged as Public Prosecutors in contravention of the Executive Instructions i.e. Instruction No.9. Hence, as on date, the petitioners have no cause of action to challenge the Circular Memo impugned in this writ petition.
The Circular Memo calling for fresh panels for appointment of Public Prosecutors is only a step before taking action under Instruction No.9 or otherwise to terminate the services of the existing Public Prosecutors in the State, for different reasons.
The major contention of learned counsel for the petitioners Sri T. Sreedhar, learned counsel for the petitioners is that, if the MSM,J 27 W.P.Nos.16406 & 17993 of 2019 petitioners are terminated before completion of their term, the petitioners will be put to serious inconvenience and it is a dent on the career of the petitioners and such arbitrary exercise of power, terminating/disengaging the services of these petitioners is prejudicial to the interest of these petitioners and in violation of a statutory right under Section 24 of Cr.P.C and such exercise of power is highly arbitrary.
No doubt, if the services of these petitioners or disengagement of the professional service of these petitioners is terminated without assigning any reason arbitrarily, this Court can exercise its power under Article 226 of the Constitution of India, if such act infringes the statutory or fundamental right of the petitioners. Article 14 of the Constitution of India deals with equality before law, but, the Courts exercising power under Article 226 of the Constitution of India to set- aside the arbitrary acts of the State, based on Article 14 of the Constitution of India. In E.P. Royappa v. State of Tamil Nadu14, the Apex Court laid down certain guidelines to decide arbitrariness. Ever since its inception, 'arbitrariness' has been a beleaguered doctrine. While some jurists have criticized the term for its imprecise import and its likely adverse impact on the 'equality' analysis under article 14, others have been indifferent in their response to this new development in that they believe that it is not a new test at all but simply a reassertion of the reasonable classification or nexus test. The view held by the latter group of jurists finds support from the fact that the term 'arbitrary' was not a new addition to the lexicon on 14 1974 AIR 555 MSM,J 28 W.P.Nos.16406 & 17993 of 2019 constitutional adjudication concerning article 14. It was often used in reference to the first limb of the reasonable classification test, namely, intelligible differentia and it was emphatically held that in order to satisfy the test of reasonable classification under article 14, the differentia must not be 'arbitrary, evasive, or artificial'. Hence, it was unclear as to whether the doctrine of arbitrariness was simply a gloss on the reasonable classification test or vice-versa or was a standalone test having its own substantive content.
The recent decision of a division bench of the Supreme Court in Rajbala v. State of Haryana15 has rejuvenated the debate on the content and scope of the doctrine of arbitrariness propounded by a constitution bench of the Apex Court in E.P. Royappa v. State of Tamil Nadu case (referred supra).
The later decisions of the Supreme Court sought to give some content to the doctrine by equating it with the concept of 'unreasonableness' but it was still unclear whether this unreasonableness pertained to the 'distributive aspect' of article 14 or could be a basis for constitutional scrutiny even in the absence of some comparative unreasonableness.
In Maneka Gandhi v. Union of India16, His Lordship Justice Bhagwati speaking for Five Judge Bench, applied the test of equality under Article 14 of the Constitution of India and acknowledged that Royappa did nothing more than explore and bring to light the 'vital and dynamic aspect' of equality that had till then been lying 'latent 15 (2016) 2 SCC 445 16 (1978) 1 SCC 248 MSM,J 29 W.P.Nos.16406 & 17993 of 2019 and submerged in the few simple but pregnant words of article 14'. Thus Article 14 essentially embodied a guarantee against 'arbitrariness' and therefore, the test of 'reasonable classification' was itself informed by the doctrine of 'arbitrariness'. In this sense, 'arbitrariness' was not a new test at all but in fact the principle underlying the evolution of doctrinal tools and judicial standards for determination of the negation of the right to equality guaranteed under Article 14 of the Constitution of India. The same was considered in Ajay Hasia v. Khalid Mujib Sehravardi17 and held as follows:
"It must therefore now be taken to be well settled that what Article 14 strikes at is arbitrariness because any action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the courts is not para-phrase of Article 14 nor is it the objective and end of that Article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. . . .Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of "authority" under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non- arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution."
Thus, the Courts can exercise its power when the act of the State or act of the state instrumentalities is unreasonable or arbitrary and quash such State action or action of the Executive Authority.
In any view of the matter, as discussed above, issuing Circular Memo, calling for fresh panels did not give rise to any cause of action to these petitioners. If the services of these petitioners are terminated by following the executive decisions vide G.O.Ms.No.187 dated 17 (1981) 1 SCC 722 MSM,J 30 W.P.Nos.16406 & 17993 of 2019 06.12.2000, the petitioners may approach the Court to quash such arbitrary act without individual assessment as on date, but there is absolutely no cause of action for these petitioners to file the present petition.
In Government of Andhra Pradesh and others v. Smt. Pushpendar Kaur18 a case where a Government Counsel in Andhra Pradesh Administrative Tribunal was removed, the counsel approached the High Court of Andhra Pradesh and the High Court had an occasion to deal with the legality of her termination from services on the touchstone of arbitrariness with reference to Andhra Pradesh Law Officers (Appointment and Conditions of Service) Instructions, 2000, vide G.O.Ms.No.187 dated 06.12.2000. In the facts before the Division Bench of the High Court, Smt. Pushpendar Kaur was appointed as Government Counsel for Andhra Pradesh Administrative Tribunal vide G.O.Rt.No.1294 dated 21.08.2002, but engagement of her services were terminated and she questioned the same. The Division Bench of the High Court while referring to Instruction Nos. 4,8 & 9 after adverting to various judgments, more particularly, Kumari Shrilekha Vidyarthi v. State of U.P (referred supra), State of U.P. v. U.P. State Law Officers' Association19 and Vilas Rao v. State of A.P20 concluded that, termination is in accordance with law and it is an order simplicitor terminating the engagement of writ petitioner as Government Pleader in Andhra 18 AIR 2004 AP 41 19 AIR 1994 SC 1654 20 1993 Supp (1) ALT 588 MSM,J 31 W.P.Nos.16406 & 17993 of 2019 Pradesh Administrative Tribunal and the same in no manner casts any claim as against the writ petitioner.
In the present facts, termination of these petitioners in engagement of services is not yet taken place, but, approached this Court with utmost haste. In Government of Andhra Pradesh and others v. Smt. Pushpendar Kaur (referred supra), the Division Bench considered the legality of the exercise of power terminating the engagement of services of these petitioners therein, based on executive instructions and held in paragraph No.20 as follows:
"Concededly the executive instructions regulating the appointment and conditions of service of the Law Officers of the Government of Andhra Pradesh are not statutory in their nature. The executive instructions were obviously issued by the Government to structure the discretion of those who are involved in the process of making appointments of the Law Officers to represent the State and its instrumentalities and other authorities in various Courts including the High Court of Andhra Pradesh and the Andhra Pradesh Administrative Tribunal. The executive instructions clearly provide that the Law Officers, i.e., Government Pleader or Assistant Government Pleader and Public Prosecutor or Additional Public Prosecutor or Special Counsel, are required to be appointed by the Government in consultation with the Advocate-General. The Law Officers shall ordinarily be appointed for a term of three years and that engagement may be terminated with one month's notice or by paying one month's honorarium in lieu of one month's notice. The Law Officers so appointed in the High Court, other Courts and Tribunals at the State level shall function under the general superintendence and control of the Advocate-General and they shall be wholly responsible for ensuring all cases entrusted to them are properly prepared and represented in the Courts.
That a cumulative reading of the Instructions and the order of appointment in unmistakable terms reveal that the Law Officers are engaged to represent the State and its instrumentalities and other authorities in the cases entrusted to them for and on behalf of the Government and other authorities. They are not recruited and appointed into any service as such. The services of the Advocates are engaged and hired by the Government for a specified period and some cases are entrusted to them to represent the State and its agencies in the Courts. They are not paid any salary. The Government Pleaders appointed in the High Court of Andhra Pradesh and the Andhra Pradesh Administrative Tribunal or in any State level Court or Tribunal are paid a consolidated honorarium of Rs. 20,000/-per month."
In view of the observations made by the Division Bench of Andhra Pradesh High Court in Government of Andhra Pradesh and MSM,J 32 W.P.Nos.16406 & 17993 of 2019 others v. Smt. Pushpendar Kaur (referred supra), the persons who are appointed as Public Prosecutors have no absolute right to claim their continuation in the office of Public Prosecutors for the full term and the State by following Executive Instructions may terminate the services strictly adhering to Instruction No.9 and such disengagement is not a stigma on the future career of the petitioners.
Learned counsel for the petitioners Sri T. Sreedhar and learned Advocate General appearing for the State cited various judgments in support of their contentions. But, they are not required to be discussed at length to avoid prolixity in the judgment and in view of my findings in the earlier paragraphs that the writ petition is premature. However, in all fairness, to maintain judicial propriety, I am adverting to the principles laid down in the judgments relied on by the learned counsel for the petitioners, though not necessary.
In Pirthwinath Chowdary v. State of Uttar Pradesh21, the question before the Allahabad High Court was whether the petitioner Pirthwinath Chowdary who was appointed as Law Officer under the United Provinces Crown Law Officers' Rules, 1942 within the meaning of Articles 310 and 311 of the Constitution of India and his termination from services attracts Article 311 of the Constitution of India. The Division Bench of the Allahabad High Court noted the meaning of 'Civil Post' within the meaning of Article 311 of the Constitution of India and concluded as follows:
"43. It appears to me that the effect of Article 311 of the Constitution of India, is that the Government have 21 AIR 1959 All 169 MSM,J 33 W.P.Nos.16406 & 17993 of 2019 a statutory obligation not to remove a person who is holding a civil post without giving him a reasonable opportunity of showing cause. The petitioner had acquired a right to continue in service for a period of three years.
44. Inasmuch as the termination of the petitioner's services has not been brought about in a manner required by Article 311 of the Constitution, the respondent has an obligation in law to treat the petitioner as continuing as an Additional Government Advocate. I would therefore allow the petition with costs and issue a writ of mandamus commanding the respondent to treat the petitioner as an Additional Government Advocate."
This view of the Allahabad High Court was concurred by another learned Single Judge of the Bench in the same judgment and finally concluded that, "it is needless to add that it would be open to the Governor to create another post of Additional Government Advocate and to appoint the advocate, if he so wishes, but the petitioner cannot be removed". But, the principle laid down in the above judgment is not be applicable to the present facts of the case, since procedure for appointment/removal of Public Prosecutor is governed by G.O.Ms.No.187 dated 06.12.2000 and the facts of the case are totally different and the petitioners in the said case are appointed under United Provinces Crown Law Officers' Rules, 1942.
Learned counsel for the petitioners has drawn attention of this Court to judgment of Madhya Pradesh High Court in Rajendra Tiwari alias Raju, Advocate, Second Additional Govt. Prosecutor and Pleader, Rewa v. State of M.P and others22 where the dispute was removal of public prosecutors whose term is not completed has come up for consideration and the same was challenged on different grounds. The first ground is that the petitioner has not completed his 22 2005 (1) M.P.L.J 204 MSM,J 34 W.P.Nos.16406 & 17993 of 2019 term and was entitled to complete his term as per paragraph No. 18 of the Manual, normal tenure is three years from the date of appointment or till the termination of term. Based on this contention, Madhya Pradesh High Court adverted to State of U.P. v. Johri Mal23 and Kumari Shrilekha Vidyarthi v. State of U.P (referred supra) and concluded that the petitioner was initially appointed on probation for fixed term before completion of his term, the respondents have removed him from the office of Public Prosecutor.
In the above judgment, the petitioner has been removed on the ground that his performance was not satisfactory and the aforesaid performance has been found on the basis of some complaint received against this petitioner. It is also not in dispute that neither show- cause notice was issued to the petitioner nor any opportunity of hearing was provided to him and the petitioner is not aware as to what are the circumstances against him resulting in his termination. In those circumstances, removal of the petitioner as Public Prosecutor is illegal, since the petitioner enjoys a reputation in the society and works on the faith of the society that he will plead the case of the public on behalf of State in the Court of law, i.e., with ability and performance. If this message goes to the public that certain person has been removed from the office of Government Pleader or Public Prosecutor because of his unsatisfactory performance, it will cause serious stigma on his entire career. It will affect reputation, grace, and imputation, shame in the society. In 23 2004 AIR SCW 3888 MSM,J 35 W.P.Nos.16406 & 17993 of 2019 aforesaid circumstances, the order dispensing with the service of the petitioner with stigma cannot be sustained under the law. The learned single Judge took a different view that removal of Public Prosecutor would result in stigma, but the view taken by the Allahabad High Court is contrary to the same in later judgment. Therefore, the judgment of Andhra Pradesh High Court in Government of Andhra Pradesh and others v. Smt. Pushpendar Kaur (referred supra) is binding precedent and not inclined to accept the contention of the learned Single Judge of Allahabad High Court based on the judgment in Rajendra Tiwari alias Raju, Advocate, Second Additional Govt. Prosecutor and Pleader, Rewa v. State of M.P and others (referred supra).
Yet, learned counsel for the petitioners drawn attention of this Court to judgment of the Division Bench of Allahabad High Court in Vijay Shankar Mishra v. State of U.P and others (referred supra), where similar question as to removal of Public Prosecutor came up for consideration, wherein, the fourth question that was urged before the Division Bench was whether a tenure appointment can be cut short by removing the appointee without giving him an opportunity to show cause. The Division Bench again by referring the judgments in Pirthwinath Chowdhry v. State of Uttar Pradesh (referred supra), decided the touchstone of arbitrariness enshrined under Article 14 of the Constitution of India and referred to Kumari Shrilekha Vidyarthi v. State of U.P (referred supra) and held that the Public Prosecutor may not be holding a post or any other similar post as a Public or Government servant holds, but he certainly holds MSM,J 36 W.P.Nos.16406 & 17993 of 2019 a public office of trust under the State. It is an office of responsibility, more important than many others, because Public Prosecutor is not only required to prosecute the cases with detachment on the one hand and yet with vigour on the other. He is empowered under the provisions of the Code of Criminal Procedure to withdraw the prosecution of a case on the direction of the State Government. Reasonable, fairness, justness, rationality Audi Alteram Partem Rule are identical different facet of Article 14 of the Constitution. These principles cover the same field. They are like twin sisters. If any law or Government order or action are bereft of these cardinal principles that will be violative of Article 14 of the Constitution which cannot be cribbed or cabined. Such a law, Government Orders, administrative instructions, directions or action cannot be saved from being declared as ultra vires. Finally, it is concluded as follows:
"A Public Prosecutor is more than an advocate of the litigant. He holds a public office. His duties are of public nature. It is not only the State but also the public at large who is concerned in the manner in which the Government i.e. Public Prosecutor discharges his duties. If he fails to perform his duties properly then the offenders who deserve punishment would be free from the clutches of law. He is not only accountable to the State but also to the public. He is a responsible law officer of the Court. It is his duty to marshal correct facts and law before Court so that the Court may dispense with justice. If such appointment would be the product of the spoils system the rule of law shall be, the ultimate victim, the dispensation of justice shall or in jeopardy and the tears from the eyes of the victim and his or her kith and kin and other relations can never be wiped out. Chapter V of the L. R. Manual can only be saved from the vice of arbitrariness, if this Court read into the said instructions that it is obligatory on the part of the State to make such an appointment after consultation with the High Court."
102. The impugned orders contained in Annexures 2 and 3 to the writ petition only indicate that 8 Law Officers including the petitioner were removed and MSM,J 37 W.P.Nos.16406 & 17993 of 2019 respondent No. 3 was appointed as Public Prosecutor for one year with a rider that the State Government at any time without indicating any reason can terminate such an appointment. The orders do not indicate any reason for terminating the services of 8 Law Officers including the petitioner.
103. We need not cite precedents to support the view that whenever, by the State action any party is adversely affected, it is incumbent upon the State to indicate reasons because this principle has long been settled. Often it happens that the order does not indicate any reason to form the basis of the decision." Therefore, the Division Bench of Allahabad High Court held that, removal of Public Prosecutor without fair procedure is illegal.
Learned counsel for the petitioners also relied on to Kumari Shrilekha Vidyarthi v. State of U.P (referred supra), where, the Division Bench of Supreme Court considered a similar issue of removal of Public Prosecutor in the State of Uttar Pradesh due to change of political party in power by Circular G.O.No.D-284-Seven- Law-Minisry dated 06.02.1990, wherein the Supreme Court held as follows:
"It is difficult to appreciate this as a reasonable basis for the drastic and sweeping action throughout the State, particularly when the provisions in the Legal Remembrancer's Manual referred earlier provide ordinarily for renewal of the tenure Of the appointees. To say the least. the contents of para 29 of this counter-affidavit Which alone are relied on to disclose the reasons for the circular are beautifully vague and convey nothing of substance and cannot furnish any tangible support to the impugned circular. It was stated by the learned Additional Advocate General that many of the old incumbents were to be re- appointed even after this exercise and, therefore, a wholesale change was not to be made. If at all this submission discloses a further infirmity in the impugned circular. If it be true that many of the existing appointees were to be continued by giving them fresh appointments. The action of first terminating their appointment and then giving them fresh appointment is. To say the least, Uninformed by reason and does not even fail within the scope of the disclosed reason to streamline the conduct of government cases and effective prosecution thereof'. It is obvious that at least in respect of all such MSM,J 38 W.P.Nos.16406 & 17993 of 2019 appointees who are to be continued by giving them fresh appointments, the act of terminating their appointment in one stroke, was without application of mind by anyone to the question whether a change was at all needed in their case. It would be too much to assume that every Government Counsel in all the districts of the State of U.P. was required to be replaced in order to streamline the conduct of government cases and indeed. That is not even the case of the State which itself says that many of them were to be re-appointed"
Though the principle is not in dispute, there is a slight deviation from the judgment of the Division Bench of Supreme Court in Kumari Shrilekha Vidyarthi v. State of U.P (referred supra) in State of U.P. v. Johri Mal (referred supra). In State of U.P. v. Johri Mal (referred supra) and Special Reference No.1 of 199824, the Apex Court succinctly held that, it was not open to the respondents to file writ petition under Article 226 of the Constitution for compelling the appellants to utilize their services as advocates irrespective of choice of the State. It was for the State to select its own counsel. The High Court committed a grave error in setting aside the order of the State Government calling upon the District Magistrate to send another panel/list for appointment to the two posts of ADGC (Criminal) and also discussed about the executive instructions, but not the law. Therefore, the later judgment while referring the principles laid down in State of U.P. v. Johri Mal (referred supra), did not agree with the principle to some extent as narrated above. In those circumstances, in view of the later judgment, it is difficult to accept the principle laid down in Kumari Shrilekha Vidyarthi v. State of U.P (referred supra), in view of the diversion taken in the later judgment of the Apex Court. 24
(1998) 7 SCC 739 MSM,J 39 W.P.Nos.16406 & 17993 of 2019 Similarly, in State of Punjab and another v. Brijeshwar Singh Chahal and another25, the Supreme Court was of the candid view that capable advocates are necessary not only to uphold the rule of law but also to assist court in doing complete justice which courts are obliged to do in each and every case. Ability of Government Counsel to present case before court thus not only affects public interest but also affects higher value of justice itself. Thus, appointment procedure of Government Counsel should be based on merit and should be fair, reasonable, transparent and non- discriminatory. 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 aggrandizement, appeasement or personal benevolence of those in power towards those appointed. The dangers of such an uncanalised & 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. It is high time to call a halt to this process lest even the right thinking become cynical about capacity to correct what needs to be corrected, while deciding the procedure to be followed in selection of Government Counsels and Public Prosecutors, issued the following directions:
1. "The States of Punjab and Haryana shall undertake a realistic assessment of their need in each category in which State counsel are proposed to be appointed.25
(2016) 6 SCC 1 MSM,J 40 W.P.Nos.16406 & 17993 of 2019
2. Based on the assessment so made, the States shall constitute a Selection Committee with such number of officers as the State Government may determine to select suitable candidates for appointment as State counsel. The Secretary, Department of Law in each State shall be the Member- Secretary of the Selection Committee.
3. The Committee shall on the basis of norms and criteria which the Government concerned may formulate and in the absence of any such norms, on the basis of norms and criteria which the Committee may themselves formulate conduct selection of law officers for the State and submit a panel of names to the Chief Justice of Punjab and Haryana who may set up a Committee of Judges to review the panel and make recommendations to the Chief Justice. The Chief Justice may based on any such recommendations record his views regarding suitability of the candidates included in the panel. The Government shall then be free to appoint the candidates having regard to the views expressed by the Chief Justice regarding their merit and suitability. The procedure for assessment of merit of the candidates and consideration by the High Court will apply in all cases where the candidates are already working as State counsel but are being given an extension in the term of their appointment. Having said that we must hasten to add that we are not interfering with the appointments already made in the States of Punjab and Haryana which can continue to remain valid for the period the same has been made but any extension or re-appointment shall go through the process indicated by us in the foregoing paragraphs.
4. The writ-petitioners shall also be free to offer themselves for consideration before the Committee appointed by the State Government in which event their claims may also be considered having regard to their merits, suitability and performance as State counsel for the period they have worked as State counsel.
5. We make it clear that nothing said by us in the foregoing paragraphs of this judgment shall affect the right of the State Governments to appoint any person eligible for such appointment as the Advocate General of the State in terms of Article 165 of the Constitution of India.
6. We further clarify that although we are primarily concerned with the procedure regarding selection and appointment of law officers in the States of Punjab and Haryana and although we have confined our directions to the said two States only yet other States would do well to reform their system of selection and appointment to make the same more transparent, fair and objective if necessary by amending the relevant LR MSM,J 41 W.P.Nos.16406 & 17993 of 2019 Manuals/Rules and Regulations on the subject."
The Memo issued by the Government which is impugned in the writ petition is not in consonance with the similar direction issued by State of Punjab and another v. Brijeshwar Singh Chahal and another (referred supra), obviously, for different reasons which are not relevant for deciding at this stage, since the memo is only an interdepartmental correspondence.
Similarly, in Hitendra Vishnu Thakur v. State of Maharashtra (referred supra), the Division Bench of the Apex Court in paragraph No.23 held as follows:
"A public prosecutor is an important officer of the State Government and is appointed by the State under the Code of Criminal Procedure. He is not a part of the investigating agency. He is an independent statutory authority. The public prosecutor is expected to independently apply his mind to the request of the investigating agency before Submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation."
In Rajendrakumar Natvarlal Shah v. State of Gujarat and others26, the Supreme Court by relying on the judgment of the learned Single Judge of Delhi High Court in K.C. Sud v. S.G. Gudimani27 noted the principle that the Public Prosecutor, Additional Public Prosecutor and Assistant Public Prosecutor hold an office and concluded as follows:
"It is public office of trust and therefore, like any other public office, is susceptible to misuse and corruption if not properly insulated. It is an office of responsibility more important than many others because the holder is required to prosecute with detachment on the one hand and yet with vigour on the other. When advocates are recruited to these offices, they have 26 (1988) 3 Supreme Court Cases 153 27 (1981) 2 Cri LJ 1779 (Del HC) MSM,J 42 W.P.Nos.16406 & 17993 of 2019 certain professional and official obligations and privileges. Some State Government have appropriately made is an express term of their appointment that they shall not accept any brief in criminal matters and shall not even in civil matters appear in any case in which the interests of the State appear to be involved"
In D.K. Yadav v. J.M.A. Industries Limited28, the Full Bench of Supreme Court held as follows:
"The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely' the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority to act arbitrarily effecting the rights of the concerned person.
It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and be given him/ her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. In Mohinder Singh Gill & Anr. v. The Chief Election Commissioner & Ors29 the Constitution Bench held that 'civil consequence' covers infraction of not merely property or personal right but of civil liberties, material deprivations and non- pecuniary damages. In its comprehensive connotation every thing that affects a citizen in his civil life inflicts a civil consequence. Black's Law Dictionary, 4th Edition, page 1487 defined civil rights are such as belong to every citizen of the state or country they include rights capable of being enforced or redressed in a civil action. In State of Orissa v. Dr. (Miss) Binapani Dei & Ors.30, this court held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice."
The principle laid down in the above judgment cannot be applied to the present case, for the simple reason that the petitioners 28 (1993) 3 Supreme Court Cases 259 29 [1978] 2 SCR 272 at 308F 30 AIR 1967 SC 1269 MSM,J 43 W.P.Nos.16406 & 17993 of 2019 were not removed or professional engagement of these petitioners were not terminated. In those circumstances, those principles of natural justice enunciated in the judgment referred supra will have no bearing on the issue at present, whereas, learned Advocate General placed reliance on State of U.P. v. Johri Mal (referred supra).
In any view of the matter, since the learned counsel for the petitioners and learned Advocate General relied on those principles only to maintain judicial propriety, the principles laid down in those judgments are noted, but, otherwise, they are not relevant at this stage, in view of my findings in the earlier paragraphs.
In view of my foregoing discussion, I find that the writ petitions are premature and no writ of mandamus be issued to set-aside the inter-departmental communication by way of Circular Memo and it does not amount to removal of any of these petitioners from the posts of Public Prosecutors/Additional Public Prosecutors/Assistant Public Prosecutors working in different Courts referred supra, more so, when professional services of these petitioners are not disengaged as on date of filing writ petitions or even today. But, due to apprehension or in anticipation of their removal from respective posts, these petitioners appeared to have approached this Court and such apprehension is also supported by the litigation in Paragraph No.15 of the counter. Though the apprehension is true, this Court at this stage cannot set-aside the Circular Memo by exercising power of judicial review under Article 226 of the Constitution of India, as the petitioners have no right to challenge the same on the date of filing the writ petitions. That too, the jurisdiction of Court under Article MSM,J 44 W.P.Nos.16406 & 17993 of 2019 226 of Constitution of India is circumscribed by certain limitations and such power can be exercised only in certain circumstances which are enumerated in "West Bengal Central School Service Commission v. Abdul Halim" (referred supra).
Therefore, I am afraid to set-aside the Circular Memo issued by the first respondent in calling for fresh panels from the District Collectors in consultation with Sessions Judge(s) of the District at this stage. However, this order will not preclude the petitioners to approach this Court in the event of their removal without following the principles laid down in various judgments referred supra.
In the result, writ petition is dismissed. No costs. W.P. No. 17993 OF 2019 In view of the detailed order passed by this Court in W.P.No.16406 of 2019, this writ petition is also dismissed. No costs.
Consequently, miscellaneous petitions pending if any in both the writ petitions, shall stand dismissed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:19.12.2019 SP