Hon'ble SINGHAL, J. - (1.) - The present writ petition has been filed challenging the action of the respondents on the following grounds : 1. Whether the sweeping changes could be made throughout the State in respect of appointment of Public Prosecutors on account of change of Government when such appointment is not a political appointment? 2. Whether the District Magistrate could delete the name of any candidate who has been recommended by the District Judge and what weightage has to be in respect of the recommendations of the District Judge? 3. Whether the petitioner was entitled for a notice of one month before his services could be terminated ? 4.Whether the action of the respondents in giving appointment to Shri Kunj Behari Lal Agrawal, respondent No. 3 as Public Prosecutor is illegal and arbitrary ? .
(2.) BRIEF facts of the writ petition are that the petitioner was appointed as Public Prosecutor under Section 24 of the Criminal Procedure Code read with Rule 12 and 14 of the Law & Judicial Department Manual on 7.07.1990 and the tenure was up to 31st December 1990. The term of appointment was further extended till further orders on 3.01.1991. It is alleged that thereafter no orders were passed but with the dismissal of the elected Government, the present Governor sent wireless message on 21.01.1993 to the District Magistrate, Swaimadhopur for sending the panel of lawyers for appointment of Public Prosecutors for Sawaimadhopur district. It is alleged that the said message was sent practically to all the District Magistrates of the entire State. The District Magistrate on the basis of the said wireless message have written a letter to the District & Sessions Judge, Sawaimadhopur for sending the names of lawyers on 21.01.1993. The list of lawyers which was sent by the Sessions Judge included the name of the petitioner and the said panel as prepared by him is alleged to have been forwarded on 24.02.1993. The petitioner has claimed that he was at serial No. 1 in the panel. The District Collector, Sawaimadhopur excluded the name of the petitioner and sent a separate panel of lawyers without any further consultation with the District & Sessions Judge. The panel sent by the District Magistrate was received by the Government on 26.01.1993 and this fact came to the knowledge of the petitioner in the 1st week of March, 1993. The submission of the learned counsel for the petitioner is that the name of the petitioner has been excluded on the instructions of the Government but there is no document or evidence in support thereof. It has also been submitted that the State Government has decided to make wholesale change of the Public Prosecutors through-out the State without any rhyme or reason. Reliance has been placed on the decision of the Apex Court in the case of Shrilekha Vidhayrthi Vs. State of U.P. (1), wherein the order of termination by a general order of all Government Counsel (Civil, Criminal, Revenue) in all districts of U.P., w.e.f. 28.02.1990 was held illegal. Specifically reliance has been placed on the following observations : "We are therefore, unable to accept the argument of the learned Additional Advocate General that the appointment of District Government counsel by the State Government is only a professional engagement like that between a private client and his lawyer, or that it is purely contractual with no public element attaching to it, which may be terminated at any time at the sweet will of the Government excluding judicial review. We have already indicated the presence of public element attached to the 'office' or 'post' of District Government Counsel of every category covered by the impugned Circular. This is sufficient to attract Article 14 of the Constitution and bring the question of validity of the impugned circular within the scope of judicial review." "The preamble of the Constitution of India resolved to secure to all its citizens justice, social, economic and political; and equality of status and opportunity. Every State action must be aimed at achieving this goal. Part IV of the Constitution contains 'Directive Principles of State Policy' which are fundamental in the governance of the country 'and are aimed at securing social and economic freedoms by appropriate State action which is complementary to individual fundamental rights guaranteed in Part III for protection against excess of State action, to realise the, vision in the Preamble. This being the philosophy of the Constitution, can it be said that it contemplates exclusion of Art. 144- non arbitrariness which is basic to rule of law -from State actions in contractual field when all actions of the State are meant for public good and expected to be fair and just ? We have no doubt that the Constitution does not envijayed or permit unfairness or unreasonableness in the State actions in any sphere of* its activity contrary to the professed ideals in the Preamble. In our opinion, it would be alien to the constitutional Scheme to accept the argument of exclusion of Art. 14 in contractual matters. The scope and permissible grounds of judicial review in such matters and the relief which may be available are different matters but that does not justify the view of its total exclusion. This is more so when the modern trend is also to examine the unreasonableness of a term in such contracts where the bargaining power is unequal so that these are not negotiated contracts but standard form contracts between unequals." "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 Mannual referred earlier provide ordinarily for renewal of the tenure of the appointees. The 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 reappointed even after this exercise and, therefore, a wholesale change was not to be made. It at all, this submission discloses a further infirmity in the impugned circular. If it be that many of the existing appointees were to be continued by giving them fresh appointments, the action of first terminating their appointment is, to say the least, uniformed by reason and does not even fall 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 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 reappointed." "Non-application of mind to individual cases before issuing a general circular terminating all such appointments throughout the State of U.P. is itself equivelant of the arbitrariness writ large on the face of the circular. It is obvious that isuance of the impugned circular was not governed by any rule but by the whim or fony of someone totally unaware of the requirements of rule of law, neatly spelled out in the case of John Wilkes centuries back and quoted with approval by this court almost a quarter century earlier in Jaisinghani's case (AIR 1967) SC' 14270) (supra ). We have considered it necessary to re-emphasise this aspect and reiterate what has been said so often by this court only because we find that some persons entrusted with the task of governance appear to be unaware of the fact that the exercise of discretion they have must be governed by rule, not by humour, whim, caprice or fancy or personal predilections. It also disturbs us to find that the Legal Remembrancer's Department of the State of U.P. which has the duty to correctly advise the State Government in such matters, overlooked the obvious and failed to discharge its bounded duty of correctly advising the State Government in matters of Law. We should like to believe that the impugned circular was issued for want of proper legal advice in this behalf instead of any ulterior motive suggested by the petitioners/appellants." Reference has also been made to the following observations of the Apex Court : "Viewed in any manner, the impugned circular dated 6.2.90 is arbitrary. It terminates all the appointments of the Government counsel in the districts of the State of Uttar Pradesh by an omnibus order, even though these appointments were all individual. No common reason applicable to all of them justifying their termination in one stroke on a reasonable ground has been shown...." The submission of the learned counsel for the respondents is that the said judgment has no application to the facts of the present case because there was no general order by which the appointments of all Government counsel (Civil, Criminal, Revenue) in all districts were laid down under law and it was only in respect of panel for Public Prosecutors that the same was called for in accordance with the provisions of law and after applying its mind only 60 changes were made in 18 districts and not in all districts in respect of Public Prosecutors. There was no change in Civil or Revenue side. The State Government has not given any direction to any other District Magistrate to send the name of any particular person and that the District Magistrate is the final authority. The consultation which was required to be made in terms of the provisions of Rule 12 of the Rajasthan Law & Judicial Department Manual, 1952 have been made. I have considered over the matter. The provisions of the Rajasthan Law & Judicial Department Manual, 1952 with regard to the appointments of Public Prosecutors have been given under rule 12 which provides that the appointments of Public Prosecutors shall be made by the Government. The Government may call for recommendations for these posts from the District Magistrates at the Head Quarters of the Sessions Division or other area concerned. The District Magistrates shall then consult the district & Sessions Judge demiof-ficially and submit the latter's opinion along with his own and also a list of pleaders practicing in his district to the govt.. According to this rule, the final power has been given to the District Magistrate for sending the penal. He has to consult the District & Sessions Judge. This rule further requires that the District Magistrate has to send the opinion of the District & Sessions Judge along with his own opinion and a list of pleaders practicing in his district direct to the Government. In the reply submitted on behalf of the respondents, it has been submitted that the District Magistrate after having received information from the State Government have invited applications from the prospective candidates for appointment on the post of Public Prosecutor and thereafter he sought consultation of the Sessions Judge with regard to the applications. It was the District Magistrate who had prepared the penal of lawyers and sent the same to the State Government for taking steps for appointment. The respondents have submitted that the Sessions Judge was consulted by the District Magistrate and the list was prepared by him, which was sent to the State Government for appointment of Public Prosecutor in Sawaimadhopur. The fact of petitioner being at S. No. 1 in the list of Sessions Judge has also been denied. It has further been submitted that since the District Magistrate has not been made a party to the writ petition, detailed reply could not be submitted by them. There is no document on the basis of which it could be considered that the name of the petitioner was sent by the District & Sessions Judge or that there was any direction of the State Government to delete his name and, therefore, that fact cannot be further considered for the merits of the case. An application was submitted by the petitioner on 27.1.1993, but no other document has been submitted by him.
(3.) IN accordance with the provisions of. Rule 13 of the said Manual, no person can be appointed as Public Prosecutor unless he agrees in writing to take no part in politics during his tenure of appointment and gives a declaration in writing that he is free of incumbrances. This provision makes it clear that the appointment of Public Prosecutor is not on the basis of political ideology. It is the merit of the practising advocates besides his integrity, capability, character, reputation and the like and, therefore, the appointment which has once been made cannot be cancelled without following the procedure of law. IN the present case, the appointment was given for six months and threafter it was extended till further orders. This shows that in accordance with Rule 14 of the Manual, the petitioner was on probation. Power has been given to the State Government to extend the period of probation for sufficient reasons. The order dated 3.1. 1991 by which the term of appointment of the petitioner was extended till further order cannot be considered to be an order confirming the petitioner on the post and giving him permanent appointment. Rule 15 of the Manual provides that the Public Prosecutor can be appointed for a period of 3 years including the period of probation and the may be reappointed for further period not exceeding 3 years at a time and ordinarily no person will be appointed as Public Prosecutor after he attains the age of 60 years or continued in that office after he attains that age. For the purpose of confirmation after the period of 3 years, a satisfactory report has to be sent under rule 14 for the satisfactory performance and unless he is confirmed, he continues on probation. If the services are unsatisfactory or the proposed period is not extended, the services could be terminated.1 IN the present matter, the petitioner was appointed on 7.07.1990 and even if this is being taken into consideration the period of 3 years, which is the term of office in accordance with rule 15 had expired and unless there is re-appointment the petitioner has no right. Besides this, Rule 16 confers powers on the Government to dispense with the services at any time after giving one month's notice. This one month's notice is required where a person is confirmed and since the petitioner was not a confirmed Public Prosecutor, the requirement of one month's notice is not applicable to him. He was only on probation and the services could be terminated without notice if his services are unsatisfactory or if the period of probation is not extended. It is a case where the period of probation is not extended and in terms of Rule 14 the services of the petitioner have rightly been terminated. So far as the judgment in Shrilekha Vidhyardh this case (supra) is concerned, on the bassis of the principles laid down in the said case, had it been a case of termination by a genera) order in the State of Rajasthan also, the position would have been different. The fact that the services of the Public Prosecutor of all Districts have not been terminated and it was only 60 changes which were made in 18 districts, has not been denied by the learned counsel for the petitioner. The action of the respondents, therefore, not to disturb the Public Prosecutors in rest of 14 districts shows that there was application of mind and it was not a political decision with the change of Government. As observed above, the office of the Public Prosecutor is not a political assignment or political appointment and no element of politics is involved in it. It is the merit alone which has to be considered for this public office. The submission of the learned counsel for the petitioner that on 29.5.93 Shri Nasir Khan was appointed as Public Prosecutor and thereafter respondent No. 3 was appointed shows arbitrary working of the respondents. If a particular Public Prosecutor for which even the order of appointment has been given and subsequently cancelled, it cannot always be considered as an arbitrary order. Since the power of termination of service (including cancellation of order of appointment) has been given to the respondents, they are within their rights to act accordingly and no grievance in this regard can be made. ;