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1998 Supreme(All) 168
High Court Of Allahabad
S.H.A. Raza, Bhagwan Din, JJ.
Vijay Kumar Mishra
Vs.
State Of U.P.
Decided on: 17th February, 1998
Advocate Appeared:
W.H. Khan
Headnote:
[KEYWORD] - [SUBJECT] - [ACT SECTION LIST] - [SUMMARY]
Fact of the Case:
The petitioner was appointed as an Additional Public Prosecutor, after consultation with the High Court for a term upto 31-8-1994. On completion of that period, the term of the petitioner was extended for further three years. At the relevant time one Mr. Ravindra Singh, Advocate, was holding the office of the public Prosecutor. Mr. Ravindra Singh resigned somewhere in the month of June 1995. In consequence there of the petitioner was entrusted with the duties of the Public Prosecutor and continued to discharge the same till his regular appointment. The State Government recommended the name of the petitioner to the High Court for prior consultation under Section 24 of the Code of Criminal Procedure, as existed prior to the deletion of the words "after consultation with the High Court" by Act No. XVIII of 1991. The High Court accorded its approval and there after on 1-1-1996 the State Government appointed the petitioner as a Public Prosecutor at Allahabad for a fixed term of three years.
Finding of the Court:
The petitioner's appointment cannot be said to the product of the operation of the spoils system. His appointment as a Public Prosecutor by the State Government was made after consultation with the High Court. It cannot be said to be an arbitrary appointment be cause his knowledge of law, experience and merit was considered by the High Court and there after the State Government appointed him but certainly the appointment of respondent No. 3 was the product of the operation of the spoils sys tem and his appointment was arbitrary in nature in asmuchas his knowledge of law, experience are merit was not required to be scrutinised even by the Advocate General and the High Court.
Issues: 1. Whether the duties of the public prosecutor/government Advocate are statutory in nature if so, its effect 2. Whether the public prosecutor/government Advocate is a public servant holding a civil post and cannot be removed without affording him a reasonable opportunity as contemplated under the provisions contain in Article 311 of the Constitution or the principles of natural justice.
Ratio Decidendi: 1. A Public Prosecutor is more than an advocate of the litigant. He holds a public office. His duties are of public nature. It is not only the State but also the public at large who is concerned in the manner in which the Government i.e. Public Prosecutor discharges his duties. If he fails to perform his duties properly then the offenders who deserve punishment would be free from the clutches of law. He is not only accountable to the" State but also to the public. He is a responsing; law officer of the Court. It is his duty to marshal correct facts and law before Court so that the Court may dispense with justice. If such appointment would be the product of the spoils system the rule of law shall be, the ultimate victim, the dispensation of justice shall be in jeopardy and the tears from the eyes of the victim and his or her kith and kin and other relations can never be wiped out. 2. The principles of natural justice, fairness and justness covers the same field which are embedded in Article 14 of the Constitution, Fairness and justness can also be read into a provision of law, in the absence of which, that law would become ultra vires.
Final Decision: The writ petition succeeds. A writ in the nature of certiorari quashing the impugned orders dated 6-11-1997 (Annexures 2 and 3 to the writ petition) passed by the State Government is issued.
S.H.A. Raza, J.
1. The fate of this writ petition hinges on the upright on the following questions :
1. Whether the duties of the public prosecutor/government Advocate are statutory in nature if so, its effect
2. Whether the public prosecutor/government Advocate is a public servant holding a civil post and cannot be removed without affording him a reasonable opportunity as contemplated under the provisions contain in Article 311 of the Constitution or the principles of natural justice.
Whether before appointing a public prosecutor/government Advocate, consultation with the High Court is necessary, in view of the undertaking given by the Advocate General and the practices or conventions.
3. Whether a tenure-appointment can be cut short by removing the appointee without giving him an opportunity to show cause.
4. Whether a public prosecutor/government Advocate appointed under a spoils system and can be removed by the spoils system and can be removed by the sweet discretion of the State and such a removal cannot be subjected to judicial review.
2. Before delving into the questions involved in this writ petition it would be necessary to look into the factual matrix as set out in the writ petition.
3. On 6-8-1993 the petitioner was appointed as an Additional Public Prosecutor, after consultation with the High Court for a term upto 31-8-1994. On completion of that period, the term of the petitioner was extended for further three years. At the relevant time one Mr. Ravindra Singh, Advocate, was holding the office of the public Prosecutor. Mr. Ravindra Singh resigned somewhere in the month of June 1995. In consequence there of the petitioner was entrusted with the duties of the Public Prosecutor and continued to discharge the same till his regular appointment. The State Government recommended the name of the petitioner to the High Court for prior consultation under Section 24 of the Code of Criminal Procedure, as existed prior to the deletion of the words "after consultation with the High Court" by Act No. XVIII of 1991. The High Court accorded its approval and there after on 1-1-1996 the State Government appointed the petitioner as a Public Prosecutor at Allahabad for a fixed term of three years.
4. It has been asserted by the petitioner that no charge or complaint against his performance ever existed and four successive Chief Standing Counsels as well as Legal Remembrancers of the Government found the work of the petitioner as satisfactory. The petitioner appeared before important Benches in the High Court and received commendations from the Benches.
5. On 6-11-1997 the State Government removed eight Law Officers including the petitioner by means of an order simpliciter. On the same date respondent No. 3 was appointed by the State Government as a Public Prosecutor in place of the petitioner. Both the orders have been as sailed in this writ petition.
Drastic amendments were carried out in the Code of Criminal Procedure in the year 1973. Under Section 2(u) of the amended Code of Criminal Procedure "public Prosecutor" was defined and under Section 34 of the Code of Criminal Procedure the procedure for appointment was prescribed by means of which the Public Prosecutor can be appointed after consultation with the High Court. The duties of the Public Prosecutor are some what statutory in nature which is evident from various Sections of the Code of Criminal Procedure as well as N.D.P.S. Act and Terrorism and Destructive Activities (Prevention) Act. The Public Prosecutor is paid Rs. 1975 as retainership besides Rs. 500 per day as fee.
5. In Mahadeo v. Shantibhai and Ors., (1969) 2 SCR 422, Hon'ble Supreme Court held that a lawyer engaged by the Railway Administration during the continuance of engagement was holding an "office of profit". In Smt. Kanta Kathuria v. Manak Chand Surana, AIR 1970 SC 694, the Constitutional Bench of Hon'ble Court (per Majority Hidayatullah, C.J. and Mitter, J. contra), it was observed that Kathuria (An Advocate appoi
