Bankim Chandra Ray, J. - (1.) These two appeals are at the instance of the two petitioners against the common judgement passed by Amiya Kumar Mookerjee, J., on 31st August, 1979 in Civil Rule Nos. 8211(W) of 1978 and 8212(W) of 1978 whereby the Rules were discharged.
(2.) The petitioners, Nemai Sundar Jana was appointed as an Assistant Public Prosecutor on 26th of August, 1974 by the Governor with effect from the date of assumption of charge until further orders and he was posted to the court of Sub-Divisional Judicial Magistrate at Kontai in the district of Midnapore. The appointment was made on a purely temporary basis. The petitioner assumed charge as Assistant Public Prosecutor in the court of Sub-divisional Judicial Magistrate, Contain on 2nd of September 1974. The petitioner, it has been stated, discharged his duties without any blemish and to the entire satisfaction of all the authorities concerned. On August 31, 1977, a representation was made by the petitioner to the Secretary, Judicial Department. Government of West Bengal for his confirmation in the post of Assistant Public Prosecutor on the ground that he has already completed the period of probation of two years as required under Rule 4(d) of West Bengal Assistant Public Prosecutor (Qualification, Method of Recruitment and Conditions of Service; Rules, 1971. No reply was, however, given to the said representation. The petitioner, however, continued in the said post till 24th of September, 1978. On 25th of September, 1978, the impugned order of termination of his service was made by the Governor with immediate effect.
(3.) The petitioner has pleaded to his petition that the impugned order pretending to remove him from the post of Assistant Public Prosecutor is illegal, arbitrary, mala fide and vitiated by malice in law. It has also been submitted that the petitioner was allowed to continue in the said post after expiry of the period of probation of two years and as such he should be deemed to have been confirmed in the post and the authorities concerned has no power to terminate his service in the manner as has been dene. It has also been submitted that the impugned order terminating his service is discriminatory being made in violation of the provisions of Articles 14 and 16 of the Constitution of India as persons junior to the petitioner had been retained in the service while terminating the service of the petitioner by the impugned order without recording reason whatsoever. The impugned order of termination is by way of punishment and as the same had been made without giving the petitioner any reasonable opportunity of making any representation against the order, it was illegal and in contravention of the canons of natural justice and fair play. It has also been pleaded that the impugned order was made for the collateral purpose and with oblique motive. Hence the order in question is illegal, arbitrary, mala fide and grossly vitiated by malice in law. It has also been submitted that the petitioner was served with several orders by the District Magistrate Midnapore under the direction of the Legal Remembrancer, West Bengal, and the Special Secretary, Government of West Bengal Home (Political Department) for withdrawal of a large number of pending criminal cases involving dacoity, attempt to commit murder, arson, burglary, theft etc. which the petitioner would not comply with as the petitioner has the responsibility to apply his mind to the facts of each case in such circumstances as provided by Article 321 of the Code of Criminal Procedure. The petitioner asked for further instruction from the District Magistrate, Midnapore on January 4, 1978 regarding the grounds of withdrawal to those cases in the light of the observations made by the Supreme Court in a case, A reply was received by the petitioner from the District Magistrate Midnapore, (vide District Magistrate's Memo No. 505(6) J. N.) dated 21-3-78 with an opinion of Sri Biren Mitra, Public Prosecutor as the grounds to be taken for withdrawal of pending criminal cases under the direction of the Legal Remembrancer, West Bengal. The petitioner, however, could not accept those grounds as convincing for exercising his powers under Section 321 of the Code of Criminal Procedure and since then he became an eye-sore to the judicial department. It has been sated that the impugned order of termination was made due to his non-compliance with order of the District Magistrate, Midnapore who directed him to withdraw pending criminal cases involving grave charges of attempt to commit murder, dacoity, arson, burglary etc. The impugned order, it has been submitted is also in violation of the principles of natural justice as the petitioner was not given any opportunity of making any representation against the impugned order of termination nor he was given any opportunity of being heard. The order in question is in contravention of the protection afforded to the petitioner by Article 311(1) of the Constitution of India.;