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High Court Of Rajasthan
Judgename : B.S. Chauhan
Ram Chandra Joshi - Appellant
Versus
State of Rajasthan - Respondent
Civil Writ Petition Nos. 386 of 1998
Decided On : 09/06/1999
PUBLIC PROSECUTORS - APPOINTMENT AND REMOVAL - LEGAL FRAMEWORK - INTERPRETATION AND APPLICATION - KEY LEGAL PRINCIPLES: 1. Appointment of Public Prosecutors (PPs) and Additional Public Prosecutors (APPs) is governed by Section 24 of the Code of Criminal Procedure, 1973 (CrPC) and the Rajasthan Law and Judicial Department Manual, 1952 (Manual). 2. Appointment of PPs in District Courts requires consultation with the District Magistrate and Sessions Judge, preparation of a panel of names, and selection based on merit. 3. Appointment of Additional Government Advocates (AGAs) is governed by Rule 10 of the Manual, which is a self-contained Code providing for appointment and removal. 4. Removal of PPs and AGAs is subject to the provisions of Rule 16(1) of the Manual, which empowers the Government to remove them without assigning any reason after giving one month's notice. 5. The requirement of consultation and adherence to the prescribed procedure for appointment ensures objectivity, merit-based selection, and public interest. 6. Extension or renewal of tenure beyond the prescribed term is not permissible unless specifically provided for in the rules. 7. Arbitrary or de hors the rules appointments cannot be enforced, and the principles of natural justice are not attracted in such cases. 8. The Government has unfettered power to appoint and remove AGAs, as their engagement is considered a professional one terminable at will. 9. The Government is expected to make earnest efforts to appoint competent lawyers as AGAs, but the method of appointment may not always ensure merit-based selection. 10. Appointments made through arbitrary procedures can be terminated equally arbitrarily, as they are understood to be purely professional engagements.
Fact of the Case:
Multiple petitions were filed challenging the removal of Public Prosecutors, Additional Public Prosecutors, and Additional Government Advocates working in the High Court of Judicature for Rajasthan and subordinate District Courts. The petitioners argued that their removal without due process of law was illegal, and the impugned orders were liable to be quashed.
Finding of the Court:
The Court held that the appointment and removal of Public Prosecutors and Additional Public Prosecutors are governed by Section 24 of the CrPC and the Rajasthan Law and Judicial Department Manual, 1952. The appointment of Additional Government Advocates is governed by Rule 10 of the Manual. The Court further held that the Government has the power to remove Public Prosecutors and Additional Public Prosecutors without assigning any reason after giving one month's notice, as per Rule 16(1) of the Manual. However, the Court emphasized that the appointment process must be conducted in accordance with the prescribed rules and procedures to ensure objectivity, merit-based selection, and public interest.
Issues: 1. Whether the removal of Public Prosecutors and Additional Public Prosecutors without due process of law was illegal. 2. Whether the impugned orders of removal were liable to be quashed. 3. Whether the Government has unfettered power to appoint and remove Additional Government Advocates.
Ratio Decidendi: 1. The Court held that the appointment and removal of Public Prosecutors and Additional Public Prosecutors are governed by Section 24 of the CrPC and the Rajasthan Law and Judicial Department Manual, 1952. The appointment of Additional Government Advocates is governed by Rule 10 of the Manual. 2. The Court further held that the Government has the power to remove Public Prosecutors and Additional Public Prosecutors without assigning any reason after giving one month's notice, as per Rule 16(1) of the Manual. However, the Court emphasized that the appointment process must be conducted in accordance with the prescribed rules and procedures to ensure objectivity, merit-based selection, and public interest. 3. The Court also held that the Government has unfettered power to appoint and remove Additional Government Advocates, as their engagement is considered a professional one terminable at will.
Final Decision: The Court quashed the impugned orders of removal of Public Prosecutors and Additional Public Prosecutors who were appointed in accordance with the prescribed rules and procedures. The Court upheld the removal of those who were appointed de hors the rules.
B.S. Chauhan, J.-All these petitions have been filed against the order of removal of Public Prosecutors/Additional Public Prosecutors/Additional Government Advocates working in the High Court of Judicature for Rajasthan at Jodhpur and the District Courts subordinate to it. As common questions of law are involved, all these petitions are heard together and are being disposed of by the common Judgment . The facts and circumstances giving rise to these cases have variance to some extent and, thus, in brief , the facts of each case would be considered separately for disposal of the case, but first legal issues are being examined.
2. At thisstage it may be mentioned that petitioners had been appointed under the provisions of Section 24 of the Code of Criminal Procedure, 1973 (for short, “CrPC”) read with the provisions of The Rajasthan Law and Judicial Department Manual, 1952 (for short, “the Manual”) and tenure of some of them had been extended for a definite or indefinite period.
3. The main arguments made by the learned Counsel for the petitioners had been that once petitioners had been appointed, they cannot be removed without due process of law; Rule 16(1) confers an unfettered and unbriddled power upon the Government to remove the duly appointed Public Prosecutors without assigning any reason; any order, not supported by reasons, is liable to be quashed and, therefore, the impugned orders of removal of petitioners are bad and deserve to be quashed.
4. In reply, respondents have taken a categorical stand that appointment of petitioners had not been made in accordance with law; there was no proper consultation of the authorities concerned and under the Rules prescribed in the Manual, the State Government had unlimited/unfettered power to remove; the only requirement is issuance of notice of one month as required under Rule 16(1) of the Manual which has been complied with and, thus, no fault can be found with the impugned orders of removing the petitioners. More so, if their appointment/extension/renewal itself had been de hors the Rules, petitioners are not entitled for any relief whatsoever in writ jurisdiction; Rule 10 of the Manual is a self-contained Code providing for appointment of Additional Government Advocates and as there is no provision contained therein analogous to Rule 16(1), the requirement of notice is also not to be observed in those cases and, thus, if the Government has power to appoint somebody as an Additional Government Advocate, it has power to remove him also by virtue of provisions of Section 16 of the General Clauses Act.
.5. The relevant provisions of law applicable in these cases read as under: Code of Criminal Procedure, 1973
.24. Public Prosecutors. - (1) For every High Court, the Central Government 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.
.(4) TheDistrict 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 Prosecutors or Additional Public Prosecutors 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). Rajasthan Law and Judicial Department Mandal, 1952
.10. Appointments and conditions of service.-
.(1) TheGovernment Advocate or Advocates shall be appointed by Government. They shall be liable to perform the duties of the Advocate-General specified in Rule 7 and shall perform such duties as the Government may assign to them.
.(2) Theterm of appointment of Government Advocate shall be such as the State Government may determine in
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