Nagendra Prasad Singh, J.

The petitioner in this writ application has questioned the legality of the appointment of respondent no. 3 as the Public Prosecutor of the district of Madhubani

2. According to the petitioner, he was enrolled as an Advocate by the Bihar State Bar Council on 11.3.1959 and since then he has been practising in the courts at Madhubani and Darbhanga. The Sessions Judge of Darbhanga (which Sessions Division included the district of Madhubani as well) on a request being made recommended on 19.1.1978 the name of the following persons in order of preference, including the petitioner .

(1) Sri Brahmdeo Narain Choudhary.

(2) Sri Mithilesh Pd. Singh.

(3) Sri Surya Narain Raut.

(4) Sri Krishna Singh.

After receipt of the recommendation of the Sessions Judge, the District Magistrate, Madhubani prepared a panel of four names, substituting three new names including that of respondent no. 3. The petitioner, however, was common in the recommendations of the Sessions Judge as well as the District Magistrate. In the letter addressed to the State Government, the District Magistrate Stated as follows :-

"The following names are recommended in order of preference for appointment as Public Prosecutor for Madhubani District. These names have been taken into consideration after getting the opinions of the District Judge and the Superintendent of Police, Madhubani.

1. Shri Hussain. Advocate, Madhubani.

2. Shri Yogeshwar Ghosh, Advocate, Madhubani.

3. Shri Mithilesh Pd. Singh, Advocate, Madhubani.

4. Shri Prabhu Lal Yadav, Advocate, Madhubani."

A copy of that letter is Annexure-A to the counter affidavit filed on behalf of respondent nos. 1, 2, 4 and 5. The State Government, out of the panel of names forwarded by the District Magistrate, appointed Shri Yogeshwar Ghosh, Advocate (respondent no.3) as The Public Prosecutor of Madhubani. The order of the State Government was communicated to respondent no. 3 under letter dated 26.7.1978, a copy where of is Annexure 2 to the writ application. According to the petitioner the said appointment is against the provisions of the Code of Criminal Procedure, 1973 (here in after to be referred to as 'the Code').

3. Section 24 of the Code provides the manner and procedure of the appointment of Public Prosecutor by the State Government for districts. The relevant portion of that section 24 is as follows :-

"(2) For every district the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Prosecutors for the district.

(3) 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 the Public Prosecutor or Additional Public Prosecutor for the district.

(4) No person shall be appointed by the Slate Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears on the panel of names prepared by the District Magistrate under sub-section (3).

(5) A person shall only be eligible to be appointed as a Public Prosecutor or an Additional

Public Prosecutor under sub-section (1) or sub-section (2), if he has been in practice as an advocate for not less than seven

Sub-section (3) of section 24 requires the District Magistrate to prepare a panel of names of persons who are in his opinion fit to be appointed as a Public Prosecutor "in consultation with the Sessions Judge.” Sub section (4) places a bar on the power of the State Government to appoint a person as Public Prosecutor or an Additional Public Prosecutor for any district whose name does not appear on the panel of names prepared by the District Magistrate under sub-section (3). In the present cue the facts are not in dispute. The State Government asked the District Magistrate to send panel of names for appointment to the post of the Public Prosecutor, Madbubani the Sessions Judge Darbhanga, on request being made, recommended the names of four persons mentioned above, including the nam