MISRA, J. - (1.) - The point for adjudication in these writ petitions is, whether the petitioner whose term as an Additional Public Prosecutor has expired has a right to continue on the post even after the expiry of the extended term on the plea that the respondents have removed him from the office of the Addl. Public Prosecutor withour effective consultation with the District & Sessions Judge and without following the procedure for appointment of Public Prosecutor/Addl. Public Prosecutor/Special Public Prosecutor and, whether his termination can be said to be violative of the provisions enumerated under Sec. 24 of the Code of Criminal Procedure, 1973. The petitioner has challenged the impugned termination order on the ground that the same is illegal, arbitrary, unconstitutional and void ab-initio and, thus, inoperative in the eyes of law. It has, therefore, been prayed for issuance of a writ of certiorari for quashing the order dated 17/7/1990, and for further direction to the respondents to make the payment or arrears of salary, allowances and other claim in regard to the post on which the petitioner asserts to continue.
(2.) BEFORE adverting to the plea taken on behalf of the petitioner, the facts of the case which lie in a very narrow ambit are to the following effect : The petitioner, Tahil Bulani, in Civil Writ Petition No. 5975/1990 was appointed as Additional Public Prosecutor vide order dated 5/6.10.1983 which was extended from time to time and the last extension was granted upto 30/6/1990, by letter dated 26/10/1989. Similarly, petitioner Smt. Indira Rathore in S.B.Civil Writ Petition No. 5980/1990 was appointed on 8/11/1985, which was extended from time to time and the last extension was granted upto 30/6/1990 and their services were terminated vide order dated 17/7/1990. Gopal Narain Mathur, petitioner in SBCW No. 5988/1990 was appointed on 16.8.1985. His term was extended upto 30/6/1990. His services were terminated vide order dated 7/1/1991. After the expiry of the petitioners term, extension to them as Addl. Public Prosecutor was refused and, thus, the term of office came to an end, which is now under challenge on various grounds right from drawing the attention of this court to the relevant provisions of Sec. 24 of the Code of Criminal Procedure, 1973 relating to the appointment as Public Prosecutor and Addl. Public Prosecutor upto citation of catena of cases relied upon by the petitioner's, counsel, out of which only relevant and important ones are referred to hereunder. The most important in the series of decisions cited is the case of Ku. Shrilekha Vidhyarthi Vs. State of U.P. & Ors. (1), wherein the earlier decisions of the Supreme Court relied upon by the petitioner for instance in the matter of Mudrika Prasad vs. State of Bihar (2) as also Ram Chandra Vs. Alarigiswami (3), has been extensively considered. Besides the dicisions of the highest court certain judgments of this court delivered in Manak chandvs. State of Rajasthan (4), Bhikha Ram Bishnoi Vs. State of Rajasthan & Anr. (D.B. Civil Writ Petition no. 4718/1990), decided on November 20, 1991, as also judgment of the Kerala High Court reported as Susey Jose Vs. Janardhaina Kurup (6) have been referred to by the counsel for the petitioner in support of his cubmission. Although, series of dicisions have been cited in suport of the case of the petitioner challenging his fixed term appointment, an examination of these decisions clearly establishes that the petitioner's challenging his fixed term appointment, an examination of these decisions clearly establishes that the petitioner's case, on fact, stands on an entirely isolated footing and does not bear any similarity with the facts of those cases relied upon in support of the case of the petitioner. It has been submitted on behalf of the petitioner that before terminating the services of the petitioners and appointing successors-in-office, the procedure laid down in Rules 12,14 and 16 of the Rajasthan Law & Judicial Manual, 1952, ought to have been followed since Rule 12 of the said Rules envisages that a panel may be called from the District Magistrate who shall have consultation with the concerned District & Sessions Judge by eliciting letter of opinion along with his own. Rule 15 has further been relied upon which lays down that notwithstanding the fact of the expiry of the terms a public prosecutor/Addl. Public Prosecutor/Special Public Prosecutor shall continue as such until he is re-appointed or successor is appointed. Rule 16 further provides the tender of one month's notice to before terminating the sevices of Public Prosecutor/Addl. Public Prosecutor /Special Public Prosecutor. Hence, it has been contended that since the office of the Public Prosecutor is a statutory office as governed by the provisions of the code of Criminal Procedure, he is a person who is appointed to carry out the provisions of a particular statute, dealing with law and order and sovereign functions of the State and he is required to discharge important statutory functions on behalf of the Government. The argument has further been elaborated by stating that the Public Prosecutor does not hold a civil post under the State, but the office of the Public Prosecutor is a statutory office as governed by the provisions of the Code of Criminal Procedure and carry with it heavy duty and right. Hence, the appointment swhould be made in consultation with the Sessions Judge and such consultation must be an effective consultation and the State Government has no authority to appoint a person as Public Prosecutor without consultation of the Sessions Judge and such consultation must be an effective consultation in the eye of law. In support of this plea, the petitioner has relied upon the case of Ku. Shrilekha Vidhyarthi Vs. State of U.P., referred to above. It is no doubt true that in the matter of Ku. Shrilekha Vidhyarthi Vs. State of U.P. Hon'ble J.S.Verma and Hon'ble R.M.Sahay JJ doubt, termination of appointment, without existence of any cogent reasons in furtherance of the object for which the power was given would be arbitrary and,therefore, against public policy." It has been further held that "Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the govrnamce is entrusted for the time being. It is trite that 'be you ever so High, the laws are aboveryou.' This is what men in power must frmember always." But the learned Judges have also observed that "the meaning and true import of arbitrariness is more easily visualised than precisely stated or defined. The question, Whether an impugned act is arvitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case." Thereofre, when a comparison is made between the facts of the instant case with the facts of all other cases relied upon in support of the case of the petitioner, the same does notber any identity with the facts or situation, In the case of Shrilekha Vidyarthi (supra), by asingle stroke, the Government of Uttar Pradesh had terminated, by a general order, the appointment of Government counsel (Civil, Criminal, Revenue) in all the districts of the State of U.P. with effect from 28/2/1990 and directed preparation of a fresh panell in place of the esisting incumbents, The termination had been made effective irespective of the fact whether the tem of the incumbent had expeired or was subsisting. The validity of the State action was, therefore, challenged in these matters after the challenge had been rejected by the High Court of Allahabad. It is, thereore, Pertinent to point out the salient dirrerence between the facts of Shrilekha Vidyarthi (supra) and the facts of the instant case, wherein admitteedly, the petitioner's term of appointment expired on 30.06.1990 and the service of the petitioner was terminated after the expiry of the petitioner was terminated after the expiry of the said term by order dated 7/7/1990. It is, thereofre, obvious that the petitionr's case is clearly distinguishavle from the case of Ku. Shrilekha Vidyarthi, which was a case of termination of Government counsel in the entire State of U.P. by the stroke of a single order irrespective of any consideration of individual cases. Thereofre, in my considered view, it is wholly erroneous on the part of the Advocate for the petitioner to rely on the decision delivered in Shrilekha Vidyarthi's case (supra ). I, thus, find substance in the submission made on behalf of the respondents that since the petitionr's term of appointment had alread, expired, which was a fixed term appointment, he has no right to continue on thepost, and his case is not identical to the case of Ku. shrilekha Vidyarthi (supra) as no blanket order has been passed in the instant case. On a perusal of the cunter- affidavit, it further appears that the petitionr's case for re- appointment was not consifered by the respondednt state, as his term already stood expired, and his name also did not appear in the panel prepared by the District Magistrate, It was thereore, contended that since the peitioner was appointed as Addl. Public Procecutor as retainer on contract basis and the same having not been renewed, the termination of the peitioner's service ought to be construed as having been passed after observing due legal procedure. The case of the respondents, therfore, cannot be said to be arbitray or illegal or contrary to the law laid down by the highest Court in the case of Ku. Shrilekha Vidyarthi, or in the case of Mudrika Prasad Vs. State of Bihar (supra) No. person, even of ordinary prudence, can dispute the proposition that the Government shall not be ellowed to play with law officers on Political or other impertinent consideration having the effect of illegality of the action and the rule of law itself, and when the law has been laid down for appointment on such post, the same are surely mean to be follwed However, the factsm as in the instant case, validly justifying the action on the part of the state, I see no reasson how the same can be held to be arbitrary merely because it is depriving the peitioner to continue to hold the office indefintely. It is no doubt, true that the politicisation of Government Pleadership, which is a public office, should not be allowed to be controlled by the politics of will and enjouing legal monopoly, as observed by the learned Judge of the Supreme Court, Hon'ble krishna Iyer J, as he then was vide Mudrika Prasad sinha Vs. State of Bihar (surpa), the Government under the Constitution shall not play with the law offices on political and other impertinent consideration as it may affect the legality of the action and subvert the rule of law itself. Nevertheless, if the appointment had been a fixed term appointment and, therfore, is in the nature of agreement between the parties, the same cannot be allowed to be protected merely to create monopoly of the office by a single individual under the garb of protection of law, the purpose of which is to check illegality and arbitrariness or highhandedness on the part of the authorities. But certainly, it cannot come to the rescue of a person who wishes to cling to the office by claiming monoploy on the office/post and seek the same as a part of the professional skill by giveing it a legal cover by seeking protection enumerated under any Act or rule. In so far as the facts of Manak Chand's case (supra)are concerned, the same also are different. The said case was a case of fixed term appointment and, therefore, removal without notice was held to be bad. In the case of Susey Jose Vs. Janardhan Kurup (supra), in which the cancellation of appointment as APP had been qushed, was under altogether different circumstances and do not even remotely bear identity with the facts of the instant case. In the case of Susey Jose Vs. Janardhan Kurup (supra), Special Public Prosecutor had been appointed to conduct sessions cases relating to murder/death of a person in Police custody, and there was a public agitation in the said case for entrusting investigation to different agency other than local police. Eventually, the case was charge-sheeted against five police personnel. The case had gained sensation in the State and due to special nature of the case, eminent and senior lawuer of the Kerala High Court on the criminal side having 35 years of experience at the Bar was appointed to conduct the sessions trial. The said appointment was abruptly cancelled by the Government and the Public Prosecutor simply informed the Court that he had lost authority to continue the prosecution. The said cancellation was struck down as invalid under the special circumstances of that case, wherein it was held that under the cover of the rule which empowers the Government to terminate the service of the Special Public Prosecutor at any time and without assinging any reason, the Government cannot arbitrarily revoke, or rescind their appointment once made. It was under these circumstances, it was held that the expression "without assinging any cause" does not mean without existence of any issue. It was therefore, held that the Government cannot rescind the appointment without good and cogent reasons. Rule only permits the Government not to communicate reason which in the opinion of the Government is conducive in public interest. The Kerala High Court also relied upon the case of Shrilekha Vidhyarthi Vs. State of U.P., as discussed above. A comparative study, therefore, of the facts of the instant case with the facts of all the cases relied upon by the petitioner's counsel demonstrate that the said orders of appointment were struck down in altogather different circumstances holding the said termination to be illegal and arbitrary and such arbitrariness do not bear identity to the facts of the instant case. A perusal of para 11 of the counter affidavit in SBCWP No. 5975/1990, in the matter of Tahil Bulani also discloses that the Collector and District Magistrate, Ajmer vide letter dated 6/6/1988 reported that number of officer-in- charge of cases made complaints to him regarding the petitioner's working, conduct and behaviour and certain private individual also made a complaint regarding the petitioner's integrity. Copies of the complaints and affidavits have also been annexed with the counter-affidavit. However, these facts have not been referred to at the time of arguments by the learned counsel , for Respondents, and no explanation was also advanced on the part of the petitioner. Therefore, these facts are not taken into consideration for judging the petitioner's termination. However, they do make out a prima facie case for non-inclusion of his name in the list of recommended names in the panel for appointment as Addl. Public Prosecutor, Ajmer. I have, thus, no hesitation in drawing an inference that the impugned order of termination of petitioner's appointment as APP which was made in 1993 and came to an end after almost seven years on 30.06.1990 can not be held to be arbitrary or illegal, which was terminated after the expiry of the term and also because his name did not appear in the fresh panel which was prepared in confirmity with the provisions of Sec. 24 of the Code of Criminal Procedure. It is, no doubt, acceptable as urged on behalf of the petitioner that the post of Addl. Public Prosecutor and Public Prosecutor is not a civil post under the State and, it is a statutory office as governed by the provisions of the Code of Criminal Procedure. It is, therefore, all the more reasonable that if the statutory office, which was for a fixed term, having come to an end, should be terminated. Besides this, the petitioner did not qualify to continue on the post in view of Sec. 24 of the Code of Criminal Procedure since his name, as stated above, was not included in the panel for renewal of his term of office. Hence, the petitioner's grievance regarding non-compliance of the provisions of Sec. 24 of the Code of Criminal Procedure and the Rules of Rajasthan Law and Judicial Manual, 1955 is also wholly unsustainable. I have, therefore, no hesitation in holding that the petitioners did not have a right to continue on the post after expiry of the term on 30.06.1990. Hence, I refrain from quashing the impugned order dated 17/7/1990.
(3.) I, thus, find no merit in these writ petitions and the same are dismissed with no order as to costs.;