SHARMA, J. - (1.) SHOULD the expression `without assigning any reason' be equated with `without existence of any reason'? This meaningful question falls for consideration in the instant writ petition.
(2.) RULE 16 (1) of the Rajasthan Law and Judicial Department Manual 1952 (for short 1952 Manual) provides that `government may, at any time and without assigning any reason, dispense with the service of a Public Prosecutor after giving him one month's notice. " Under this provision second respondent vide order dated January 4, 1999 intimated the petitioner that his services as Additional Public Prosecutor were no longer required and the same be treated as terminated on the expiry of one month from the date of the order. Against this order that the present action of filing the writ petition has been resorted to by the petitioner. The petitioner came to be appointed as Additional Public Prosecutor cum Government Advocate for a period of six months on a fixed salary of Rs. 2000/-per month under section 24 of the Code of Criminal Procedure read with Rules 12 and 14 of 1952 Manual by third respondent vide its order dated May 19, 1995. The petitioner was continued in the service after expiry of six months though no formal order was issued. In continuation to order dated May 19, 1995 the services of the petitioner were extended till further orders by the third respondent vide its order dated August 21, 1998. Thereafter order dated January 4, 1999 was issued as indicated hereinabove. The stand taken by the petitioner is that as per the provisions of 1952 Manual the services of the petitioner shall be deemed to have been further extended for a period of three years vide order dated August 21, 1998 and he could not have been removed by one stroke of pen without application of mind as no ground existed with the Government to terminate his appointment. It was bounden duty of the Government to disclose the reasons and facts compelling it to terminate the services of the petitioner. In the reply the respondents pleaded that the petitioner cannot claim any right to continue on the post of APP. Assigning any reason or providing opportunity of hearing was not necessary in view of Rule 16 (1) of 1952 Manual. Provisions contained in the 1952 Manual are just and proper and do not suffer from any infirmity. The petitioner submitted rejoinder in support of the grounds of the writ petition and stated therein that he was not paid a single penny against his salary from the month of March 1999 onwards and no other person has been appointed in place of the petitioner. I have heard learned counsel appearing for the parties and perused the record.
(3.) A close look at the provisions of 1952 Manual goes to show that its main purpose is to consolidate in one place the instructions for the control of Government litigation, issued from time to time in the form of circulars or general orders or rules. Rule 12 provides that for the purpose of making the appointment of Public Prosecutor recommendation from the District Magistrate may be called for by the Government. The District Magistrate after consulting the District and Sessions Judge demi-officially submit the opinion of the Judge alongwith his own submit the list of the advocates to the Government. The Public Prosecutor shall be initially appointed on probation for a period of six months under Rule 14 and after receiving the satisfactory report from the District Magistrate he shall be confirmed. If the work of Public Prosecutor is found unsatisfactory he may be removed without notice or his period of probation may be extended. As per Rule 15 the Public Prosecutor shall be appointed for a period of three years inclusive of period of probation. He may be reappointed for further period not exceeding three years at a time and Government at any time without assigning any reason may dispense with his services under Rule 16 (1 ). It appears that Rule 12 was drafted in view of sub-section (3) of Section 24 of the Code of Criminal Procedure, 1973 which says that the District Magistrate shall prepare panel of names of persons fit to be appointed as P. P. or APP with the Sessions Judge. According to Section 24 (4) no person shall be appointed as PP or APP unless his name appears on the panel of names prepared by the District Magistrate. The Public Prosecutor or Additional Public Prosecutor is associated with mission of assisting court. Appointment to the office of Public Prosecutor or Additional Public Prosecutor is governed by the statutory provisions contained in section 24 of the Code of Criminal Procedure. Just as abolition of all courts due to "financial constraints" cannot even be visualised, so also no appointment of a Prosecutor to conduct cases in criminal courts cannot be permitted. The power of the Public Prosecutor incharge of the case is derived from statute and the guiding consideration for it, must be the interest of administration of justice. In Shrilekha Vidyarthi vs. State of U. P. (1), their Lordships of the Supreme Court indicated thus: " There can be no doubt that this function of the Public Prosecutor relates to a public purpose entrusting him with the responsibility of so acting only in the interest of administration of justice. In the case of Public Prosecutor, this additional public element flowing from statutory provisions in the Code of Criminal Procedure, undoubtedly, invest the Public Prosecutors, with the attribute of holder of a public office which cannot be whittled down by the assertion that their engagement is purely professional between a client and his lawyer with no public element attaching to it. " In the instant case, admittedly no other person has been appointed as Additional Public Prosecutor in the place of the petitioner. This is also not the case of the respondents that Panel of the Advocates has been received from the District Magistrate as per section 24 (3) Cr. P. C. read with Rule 12 of 1952 Manual under these circumstances it appears that by terminating the services of the petitioner the respondents intend to keep the post of Additional Public Prosecutor Kotputli vacant. This cannot be permitted in the interest of administration of justice. ;