POINT OF LAW: action of the State, thus, must be judged with extreme care and circumspection. It must be borne in mind that the right of the public prosecutor or the district counsel do not flow under a statute. Although, discretionary powers are not beyond pale of judicial review, the Courts, it is trite, allow the public authorities sufficient elbow space/play in the joints for a proper exercise of discretion

JUDGMENT AND ORDER :

Heard Mr. M.K. Choudhury, learned Senior Advocate, assisted by Mr. M. Sarma, learned counsel for the petitioners, Mr. D. Mozumdar, learned Addl. Advocate General for the State, assisted by Mr. D. Nath, learned Addl. Senior Govt. Advocate, Mr. U.K. Nair, learned Senior Advocate, appearing as Standing Counsel for this Court, representing respondent no.3, Mr. K.N. Choudhury, learned Senior Advocate, assisted by Mr. N. Deka, learned counsel for respondent nos. 4 to 7 and 9, as well as Mr. M. Sarma, learned counsel for respondent no.8.

2. At the request made by the learned senior counsel for the petitioners, which was not objected to by the learned senior counsel for the respondent no. 3 and for respondent nos. 4 to 7 and 9 and for respondent no.8, the writ petition was proposed to be heard at the admission stage. However, the learned Addl. A.G. appearing for respondent no.1 and 2 had prayed for some time to produce the record. The said prayer was rejected as because the respondent no. 1 had filed affidavit-in-opposition on 19.12.2017, the respondent no.3 had filed his affidavit-in-opposition on 19.06.2019, and the respondent nos. 4 to 9 had filed their joint affidavit-in-opposition on 21.08.2019. However, although notice of motion was issued by order dated 05.01.2018 and in spite of being granted time to respondent no.2 to file his affidavit-in-opposition vide order dated 18.01.2021, the respondent 2 had not filed his affidavit-in-opposition. It may also be mentioned that by order dated 19.07.2019, this Court had granted liberty to the respondent nos. 2 and 3 to file supplementary affidavit enclosing therewith copies of documents not annexed with the affidavit-in-opposition, but no such opportunity was availed. Therefore, adjournment of hearing to enable the learned Addl. A.G. to produce records was refused and the matter was heard on the basis of materials available on record.

3. The issue raised in this writ petition is of considerable public importance. The case of the petitioners, in brief, is that they were holding the post of Additional Public Prosecutors (‘A.P.P.’ for short) in different Courts in Karimganj District. By virtue of notification dated 10.11.2017 issued by the Legal Remembrancer-cum-Commissioner & Secretary to the Govt. of Assam, Judicial Department, the services of four out of six petitioners were relieved and the private respondent nos. 4 to 8 were appointed to the said post. Accordingly, the aggrieved petitioners have filed this instant writ petition.

4. The learned senior counsel for the petitioners has submitted that from the stand taken by the respondent no.3 in his affidavit-in-opposition there was no room for any doubt that the mandatory provisions of Section 24(4) Cr.P.C., requiring consultation with the District Judge concerned was not followed before appointing the private respondents to the post of A.P.P. It is submitted that vide communication under memo dated 14.08.2017, the respondent no.2 had submitted a list of panel of advocates to the respondent no. 1 for appointment as Govt. Pleader, Assistant Govt. Pleader, Public Prosecutor, Additional Public Prosecutor, Assistant Public Prosecutor in Karimganj District. It is also submitted that the impugned panel list as sent by the respondent no.2 to the respondent no.1 was in variance with the list prepared and sent by the respondent no.3 to the respondent no.2. Accordingly, the learned senior counsel strenuously presses for grant of reliefs as prayed for. In support of his submissions, the learned senior counsel for the petitioners has placed reliance on the following cases, viz., (1) State of U.P. & Anr. Vs. Johri Mal, (2004) 4 SCC 714, and (ii) Dhira Devi Vs. Jamaluddin Khan (Md.) & Ors., 2016 (1) GLT 416.

5. The learned Addl. A.G. for the State had submitted that on behalf of respondent no.1, the Deputy Legal Remembrancer and Deputy Secretary to the Govt. of Assam, Judicial Department had filed an affidavit-in-opposition, wherein a