N. B. Asthana, J. - (1.) THIS petition under Article 226 of the Constitution has teen filed for issuing a writ order or direction in the nature of certiorari quashing the order dated 10-4-89 passed by respondent no. 2 (Annexure-XIII) communicated to the petitioner by respondent no. 3 on 10-4-89 and the order dated 20-4-89 (Annexure-XIV) passed by respondent no. 5 and communicated to the petitioner on 25-4-89 and to issue another writ of mandamus directing the respondents to allow the petitioner to work as Assistant District Government Counsel (Criminal) in district Banda and to pay him his salary and other emoluments including arrears to which he is entitled.
(2.) THE petitioner is a practicing Advocate at Banda, Upon the recommendations of District and Sessions Judge, Banda District Magistrate, Banda the petitioner was appointed as A.D.G.C. (Criminal) for a period of one year vide order dated 20-1-84 of respondent no. 1 (Annexure-I). It is said that the petitioner was performing bis duties honestly and efficiently and that there was no complaint against him. His precentage of conviction was also high. THE Presiding Officers of different courts where the petitioner worked appreciated his work and issued certificates to him to that effect (Annexue-2 to 7) to the writ petition). He continued to work as A.D.G.C. (Criminal) even after the lapse of one year as favourable reports about his work and conduct were being sent by the District Judge and District Magistrate, Banda. Respondent no. 4, Sri Yogendra Kumar Bahal was A.D.M. (Finance and Revenue) Banda and was also working as drawing and disbursing officer for payment of salary and other emoluments to the petitioner and other Law Officers of the district. In S. T. No. 16 of 1988 1 Addl. District and Sessions Judge, Banda imposed cost of Rs. 150/- against the State as the Investigating Officer did not turn up for giving evidence. THE copy of this order was sent to Collector, Banda for payment of cost. THE respondent No. 4 instead of sending the amount to the petitioner or to the Court sent an order directing the petitioner to Collect the money from Nazarat. This was not the job of the petitioner and, therefore, he returned the aforesaid order with the request that the amount be drawn and sent to the Court directly for payment to the accused. THE respondent no 4 felt annoyed and passed an order warning the petitioner (Annexure-VIII to the writ petition). THE petitioner also submitted the reply clarifying his position. THE amount was subsequently sent and paid to the accused before the Presiding Officer. THE respondent no. 4 was a witness in Criminal Cases Nos. 19 of 1988, State v. Sukh Lal and 21 of 198S State v. Udaibhan Singh under Essential Commodities Act in the court of Special Judge. Banda as he had accorded sanction for prosecuting; the accused. He was summoned on 1-2-89 to give evidence. He came at about 1 50 P.M. and went inside the Chamber of the Presiding Officer. THE Presiding Officer did not like it and asked him to wait in the court room. He occupied the chair of steno to the presiding officer on the dais of the court. THE Presiding Officer came to the court but still respondent no. 4 did not stand. whereupon the Presiding Officer rebuked and asked him to leave the dais immediately and some to the witness box. At the time of cross-examination respondent no. 4 admitted that he committed mistake In granting sanction in both the cases. (THE copy of these statements are Annexures IX and X to the writ petition). THE Presiding Officer acquitted the accused in both the cases and passed strictures against respondent no. 4 (the copy of the judgments are Annexures XI and XII to the writ petition. THE respondent no. 4 felt highly annoyed against the petitioner and prevailed upon District Magistrate. Banda in writing a letter to the State Government not to allow the petitioner to continue as A.D.G.C. (Criminal) THE respondent no. 4 also went to Lucknow and thereafter, persuaded the authority to pass the order against the petitioner. THE result was that on 20-4-89 he has teased to work as ADGC (Criminal). THE original order was not sent to him. Instead orders dated 10-4 -89 (Annexure-XIII of D.G.C (Criminal) and Annexure XIV of District Magistrate, Banda) were communicated to him. THE petitioner then made representation before the Governor of U.P. and the Law Minister (Copies of these representations are Annexures-XV and XVI to the writ petition). His appointment was cancelled illegally at the behest and under the influence of respondent no. 4. It is further said that the petitioner has come to know that on 8-2-88 a strong recommendation was made by the District Judge and respondent no. 2, the District Magistrate for renewing the appointment of the petitioner for a further period of three years It is said that the order terminating his engagement is malafide exercise of powers and that no opportunity of hearing was given to him against the adverse report said to have been given by the respondents no. 2 and 4 against him. THE order terminating the petitioner's engagement has been turned as arbitrary and it has also been alleged that the petitioner has no other equally efficacious alternative and specific remedy than to seek the protection of the Court under Article 226 of the Constitution. On behalf of respondents no. 2, 3 and 5 Sri Siya Ram Azad, Assistant Judicial Assistant, Collector, etc. Banda filed counter affidavit stating that the petitioner failed to discharge his duties satisfactorily. His conduct had always been point of dispute. He moved an application in S. T. No. 95 of 1988 State v. Kishal Pal and others against the prosecution witness, with the result that they were taken into custody and sent to jail although they were clearly willing to speak the truth and to support the prosecution version of the case. An application was moved by the witnesses against the petitioner on 16-8-88 alleging that the petitioner bad been won over by the accused. (The copy of this application is Annexure C.A. 1). The performance of the petitioner was below the mark. The percentage of conviction given in the writ petition are misleading the eases in which the witnesses turned hostile and the accused were acquitted have not been taken Into account. He used to declare witnesses hostile on flimsy grounds. The petitioner was so incompetent that no Presiding Officer was willing to take work with him and this fact was also conveyed in writing (Annexures C.A. 2 and C.A.-3 to the counter affidavit). Favourable remark was given about the work and conduct of the petitioner so long as his work and conduct were satisfactory but when adverse facts came to the notice of the District Magistrate, his continuation as A.D.G.C. (Crl ) was not considered proper for prosecuting agency. The State Government was moved against the petitioner not on account of the payment of cost but on account of the fact that the petitioner was incompetent of doubtful integrity and his work was also below standard. The District Magistrate was duty bound to report the matter to the Government. The inefficiency of the petitioner came to light as early as in the year 1985 when the then District Judge, Banda sent a letter to the District Magistrate about the incompetency of the petitioner. (Its copy is Annexure C.A.-4). The then District Magistrate wrote a letter on 19-4-85 to the State Government about the poor working of the petitioner. (Its copy is Annexure C.A.-5). On 26-4-85 the District Judge, Banda also wrote a letter to the Government about incompetency of the petitioner. (Its copy is Annexure C.A.-VI). The Special Judge, Banda dealing with Dcoity cases was also dissatisfied with the petitioner. He also wrote a letter in this connection, (its copy is Annexure C.A.-8). The District Magistrate, Banda then sent letters dated 24-4-87 and 16-6-87 to the State Government in this connection (their copies are Annexures C.A.-9 and C.A. -10). First Additional District Judge, Banda also sent a copy of the order dated 17-1-88 (Annexure C.A.-XI) against the petitioner censuring his conduct and awarding Rs. 200/- as cost for adjournment. Respondent no. 4 took charge at Banda on 22-8-87, given prior to this date complaints were being received against the petitioner and the District Magistrate was referring them to the State Government. It is wrong to say that respondent no 4 persuaded the District Magistrate to send unfavourable report against the petitioner to the State Government. The Government had been moved to dispense with the services of the petitioner and, therefore, he was stopped to work in the courts in the interest of the State and to prevent further damage to the prosecuting agency In the cases pending before the court In which be was working. His professional engagement expired on 30-6-88 but as no orders were received from the State Government he was continuing to work. The order from the State Government was received on 20-4-89 but as the work of the petitioner was unsatisfactory the District Magistrate passed the order on 10-4-89 withdrawing all the work from him. The State Government before passing the order dispensing with the services of the petitioner looked into his record and the various reports submitted to it from time to time by the District Magistrate. The recommendation for continuing the petitioner as A.D.G.C. (Criminal) was mide by incharge District Judge and not by the District Judge This recommendation is thus meaningless. The petitioner was not a Government servant. It was not necessary to give him no ice to show cause before dispensing with his services. The other allegations made in the writ petition were denied and it was said that the writ petition is misconceived and is liable to be dismissed.
(3.) THE petitioner filed a rejoinder affidavit in which he traversed the allegations made regarding the unsatisfactory nature of his work and conduct stating that in S.T. No. 95 of 1088 state v. Kishan Pal and others the witnesses after taking oath did not dispose anything. All persuation failed and, therefore, the Presiding Officer took all the witnesses under custody This would be amply clear from the order passed by I Additional District and Sessions Judge in that Sessions trial (its copy Is Annexure R.A.-1). Upon the application of the witnesses he was asked to explain by the D.G.C (Criminal). He submitted his explanation (its copy is Annexure R.A-3). It in wrong to say that no Presiding Officer was willing to take work from him It is also said that the respondent no. 4 has not come to file counter affidavit although personal allegations were made against him and, therefore, whatever has been stated against him in the affidavit should be taken as correct. Various annexures filed with the counter affidavit against the petitioner ralate to the period 1985 to 1987. He made representation to the Governor of U. P. Whereupon his term was renewed upto 30 6-88 THE adverse reports are therefore wholly irrelevant for the decision of this writ petition. THE order dated 17-5-88 passed by I Additional Sessions Judge, Banda imposing cost for adjournment and allegedly censuring his conduct was recalled on 27-5-88 (Its copy is Annexure R.A. 6)- This development was not brought to the notice of the State Government otherwise he engagement would not have been dispensed with. We have heard the counsel for the parties and have perused the record. Three points have been urged in this writ petition. The first point is that the order terminating the petitioner's services is malafide, secondly that no opportunity was given to the petitioner before passing the impugned order which is violative of Articles 14 and 16 of the Constitution and thirdly that no reasons have been assigned for terminating his engagement.;