SHARMA, J. - (1.) INVOKING Article 226 of the Constitution of India, the petitioner an Advocate, made following prayer- (i) order dated October 23, 1998 of the Joint Legal Remembrancer and Director Litigation Jaipur be set aside; and (ii) the petitioner be allowed to continue as Public Prosecutor Hanu-mangarh.
(2.) CONTEXTUAL facts depict that the petitioner was appointed as Public Prosecutor for Hanumangarh Distt. vide order dated Sept. 19, 1994 (Annexure-1 ). While the petitioner was discharging the functions of the Public Prosecutor, the State Government issued an order dated October 23, 1998 (Annexure-4) terminating the services of the petitioner with immediate effect and appointed Advocate Vijay Sharma (respondent No. 3) as Public Prosecutor Hanumangarh. According to the petitioner the order Annexure -4 is arbitrary and illegal being violative of Section 24 of the Code of Criminal Procedure and Rule 15 of the Rajasthan Law and Judicial Department Manual 1952 (for short Manual 1952 ). The respondents in their reply averred that the petitioner has crossed 60 years on July 23, 1998 therefore according to Rule 15 of the Manual 1952 he could not have continued as Public Prosecutor. Thus after following the procedure enumerated in Section 24 Cr. P. C. , the appointment of Vijay Sharma was made. Mr. Mahendra Goyal, learned counsel appearing for the petitioner canvassed that without following the procedure contained in Section 24 of the Cr. P. C. , the respondent No. 3 has been appointed. The name of the respondent No. 3 was neither recommended by the District and Sessions Judge nor due formalities have been completed by the respondents 1 and 2 as required in Manual 1952. The respondents 1 and 2 have not properly appreciated the provisions contained in Rule 15 of Manual 1952 and without affording opportunity of showing cause the services of the petitioner have been terminated as such the impugned order Annexure-4 is violative of Article 14 of the Constitution. Reliance was placed on Kumari Shrilekha Vidyarthi and others vs. State of U. P. and others (1), State of U. P. vs. Ramesh Chandra Sharma and others (2), Harpal Singh Chauhan and others vs. State of U. P. (3) and Manak Chand Jain vs. State of Rajasthan and another On the other hand Mr. J. S. Rastogi, learned Additional Advocate General, and Mr. Prem Shanker Asopa, learned Senior Advocate, have contended that the petitioner has not come with clean hands. He has intentionally concealed his age and even affidavit was filed by the petitioner without showing his age. The appointment of the respondent No. 3 Vijay Sharma was made after following procedure enumerated in Section 24 Cr. P. C. as well as in Manual 1952. Reliance was placed on Suraj Narain Surwal vs. State of Rajasthan and others (5), Tahil Bulani vs. State of Rajasthan and others (6) and Bajrang lal Jat vs. State of Rajasthan and others Before adverting to the rival submission, it will be useful to consider the relevant statutory provisions. Section 24 Cr. P. C. provides thus- "24. Public Prosecutors- (1) For every High Court, the Central Govern-ment or the State Government shall, after consultation with the High Court appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government as the case may be. (2)The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district or local area. (3) For every District the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Pro-secutors for the district: Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor as the case may be, for another district. (4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutor or Additional Public Prosecutor for the district. (5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4) (6) Notwithstanding anything contain in sub-section (5) where in a State there exits a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such cadre: Provided that where, in the opinion of the State Government, no sui-table person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub-section (4) (7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6) only if he has been in practice as an advocate for not less then seven years. (8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor. (9) For the purposes of Sub-section (7) and sub-section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public or Assistant Public Prosecutor or other Prosecuting Officer by whatever name called, shall be deemed to be the period during which such person has been in practice as an Advocate. "
(3.) RULE 15 of the Manual 1952 provides that the Public Prosecutor shall be appointed for a period of three years including the period of his probation, and may be reappointed for further periods not exceeding three years at a time. Ordinarily no person will be appointed as Public Prosecutor if he attains the age of 60 years or continued in that office if he attains the age. Notwithstanding the expiry of the period of his term of appointment, a Public Prosecutor shall continue as such until he is reappointed or his successor is appointed. A look at sub-sections (4) & (5) of Section 24 Cr. P. C. reveals that panel of names of fit persons to be appointed as Public Prosecutor has to be prepared by the District Magistrate in consultation with the District & Sessions Judge and no person is eligible to be appointed as Public Prosecutor, whose name does not find place in said panel. Similarly a person who attains age of 60 years is not ordinarily to be appointed as Public Prosecutor as is evident from Rule 15 of the Manual of 1952. The petitioner who is an advocate is presumed to have knowledge of the aforementioned legal position and it appears that the petitioner intentionally did not mention his age in the writ petition as well as the affidavit filed along with it. The respondents 1 and 2 with their reply annexed copy of the application dated July 8, 1997 submitted by the petitioner to the District and Sessions Judge Hanumangarh. In the said application the petitioner has mentioned his date of birth as July 23, 1938 and admittedly on July 23, 1998 the petitioner has completed 60 years of age. The instant writ petition has been filed on November 5, 1998 assailing the order dated October 23, 1998 Annexure-4 whereby the services of the petitioner were terminated with immediate effect. On October 23, 1998 the petitioner has crossed the age of 60 years and in view of Rule 15 of Manual 1952 the petitioner was not entitled to be appointed as Public Prosecutor and under these circumstances it was not necessary for the respondent 1 and 2 to issue show cause notice to the petitioner before passing the said order of termination. The cases cited by the petitioner are distinguishable and not applicable in the facts and circumstances of this case. In Shrilekha Vidyarthi vs. State of U. P. (supra) the Government of State of U. P. by one stroke terminated the appointments of all Government Counsel (Civil, Criminal and Revenue) in all districts of the State of U. P. by a general order and directed preparation of fresh panels to make appointments in place of the existing incumbents. The validity of this State action was challenged and it was held by their Lordships of the Supreme Court that the termination of appointments of Govt. Counsel was arbitrary and violative of Article 14 of the Constitution of India. ;