JUDGMENT
A.K. Mathur, J.
1. The petitioner by this writ petition has challenged the order dated 17-10-1990 as well as has prayed that Rule 5(2) of the Rules be struck down. It is further prayed that the petitioner may be directed to be reinstated as Public Prosecutor, Jodhpur.
2. The brief facts, which are necessary for the convenient disposal of this writ petition, are that the petitioner is an Advocate and his name is on the rolls of the Bar Council of Rajasthan. He was appointed as Public Prosecutor at Jodhpur on 30-7-1988. Though the initial appointment of the petitioner was for a period of six months but the same was extended from time to time and the last extension was granted upto 30-6-1993 by the order dated 27-12-1989. However, his services were terminated on 17-10-1990 and one Pokar Ram Bishnoi was appointed vice the petitioner. Therefore, the petitioner by this writ petition has challenged the validity of Rule 5(2) as well as the order terminating his services.
3. A return has been filed by the respondents and it has been pointed out that respondent was appointed according to Rules 12, 14 of the Law & Judicial Department Manual read with Section 24 Cr.P.C. It is submitted that the reference made by the petitioner to Rule 5 of the Rules of 1951 is misconceived as now all the rules have been consolidated in the Law & Judicial Department Manual. It is submitted that the District Magistrate was directed to send a panel for appointment of Public Prosecutors in consultation with the District Judge, Jodhpur. A notice dated 17-7-1990 was issued by the District Magistrate, Jodhpur inviting applications for the posts of Public Prosecutors and Additional Public Prosecutors. The petitioner also applied to the District Magistrate in response to the above notice including respondent No. 2. The District Magistrate forwarded the application to the District Judge, Jodhpur requesting him to forward a panel of lawyers to whom he considers fit for appointment to the post of Public Prosecutors. The petitioner’s name as well as the name of respondent No. 2 were included in the panel of lawyers who were considered to be fit for being appointed as Public Prosecutors. This panel was forwarded to the State Government and the State Government after considering over the matter appointed respondent No. 2 as Public Prosecutor on 17-10-1990. The respondent No. 2 assumed his duties in pursuance of the aforesaid order. It is contended that the petitioner voluntarily submitted his application therefore, it is not open for him now to challenge the appointment.
4. We have heard both the learned Counsel and perused the record.
5. So far as the validity of Rule 5 of the Rules is concerned, that is not relevant because now the Law and Judicial Department Manual has been codified. However, learned Counsel for the petitioner submitted that even without going into the validity of the rule, the matter can be disposed of as a Division Bench of this Court in the case of Manak Chand Jain v. State of Rajasthan (D.B. Civil Writ Petition No. 2880/90, decided on May 28, 1991) has already struck down such similar appointments by relying on the latest decision of their Lordships of the Supreme Court in the case of Kumari Shrilekha Vidyarthi etc. etc. in regard to appointment of Public Prosecutors at Ajmer. The Division Bench at Jaipur has examined all the relevant provisions of law and the Law and Judicial Department Manual and after a detailed discussion has struck down the appointments of the Public Prosecutors at Ajmer.
6. Learned Counsel submitted that the present case is squarely covered by the decision given in the case of Manak Chand Jain (supra).
7. Mr. Udawat, learned Additional Advocate General submitted that the case of Kumari Shrilekha (supra) is not applicable in the present case nor it was applicable in the case of Manak Chand Jain (supra). Learned Additional Advocate General submitted that that was a case of an arbitrary action taken by the State in terminating the appointments of all Public Prosecutors in the State of U.P. But in the present case the appointment has been terminated after following the procedure given in the Manual. It is further submitted that the petitioner himself has applied in pursuance of the fresh notice and the District Judge has also included his name in the panel along with the name of the respondent No. 2 and the State Government has appointed the respondent No. 2. Therefore, such appointment cannot be said to be arbitrary. Learned Counsel has also invited our attention to a decision of the Hon’ble Supreme Court in the case of Sheonandan Paswan v. State of Bihar and Ors. and submitted that the relief of reinstatement and back wages can only be granted in three situations i.e. when the termination under Article 311 of the Constitution is bad; that relationship of master and servant exists and in matters relating to Industrial Disputes Act. It is also submitted by the learned Counsel that even if this Court comes to the conclusion that the termination of the petitioner is invalid then too also no relief of reinstatement with back wages can be granted. Learned Counsel submitted that the Division Bench in the case of Manak Chand Jain (supra) has erroneously granted the relief.
8. The contention of the learned Additional Advocate General is not correct. In the case of Kumari Shrilekha (supra), the Hon’ble Supreme Court has taken the view that arbitrary action of the State cannot be countenanced. It was observed as under in the aforesaid case:
Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that ‘be you ever so high, the laws are above you’. This is what men in power must remember, always.
9. The same judgment was followed by the Division Bench in the case of Manak Chand Jain (supra) and found that the termination of appointment of Manak Chand was bad and the same was therefore quashed. In the present case, the arbitrariness is also writ at large. When the appointment of the incumbent was extended upto June, 1993 and no complaint whatsoever has been received against the petitioner then what was the justification for calling for the fresh panel and terminating the appointment of the petitioner and appointing a new incumbent in place of the petitioner. More-so in the second panel which was sent by the District Judge on 20-9-1990 (Annex. 7) also the name of the petitioner appears at the top and the name respondent No. 2 appears at item No. 5. It has also been recorded by the District Judge that the services of the petitioner are satisfactory. Still the appointment of the petitioner which was already extended upto June 1993 was terminated and in his place respondent No. 2 was appointed. There is no justification for the same in the return filed by the respondent as to why such course was adopted except that it smacks of arbitrariness only. Their Lordships of the Supreme Court in Kumari Shrilekha as well as the Division Bench in the case of Manak Chand Jain has found that arbitrary action of the State is antithesis to Article 14 of the Constitution, therefore such arbitrary actions cannot be sustained.
10. Mr. Mridul, learned Counsel for the petitioner has brought to our notice that Manak Chand Jain’s decision has been affirmed by their Lordships of the Supreme Court by dismissing the special leave petition. An affidavit to this effect has been filed by the petitioner. It has also been brought to our notice that in another appointment of Public Prosecutors at Jhalawar was also quashed by a Division Bench at Jaipur in the case of Mohd. Mansoor Alam v. The State of Raj. and Anr. (D.B. Civil Writ Petition No. 5055/90, decided on 3-7-1991) a copy whereof has been placed on the record.
11. Thus, in this back ground, there is no option left with us except to quash the appointment of respondent No. 2 as Public Prosecutor at Jodhpur by the order dated 17-10-1990 and it is declared that the petitioner Bhikha Ram Bishnoi shall function and discharge the duties of Public Prosecutor, Jodhpur. He shall be also entitled to all consequential benefits including the retainer’s fees from the date of termination.
12. Mr. Udawat, learned Counsel for the respondent submitted that since there is no relation of master and servant between the Government and the petitioner therefore, relief of back wages and reinstatement may not be granted. The submission of the learned Counsel cannot be accepted for the simple reasons that there are two decisions of the Division Bench in the cases of the Manak Chand Jain as well as Mohd. Mansoor Alam there in similar reliefs were granted and now two decision of Manak Chand Jain has been affirmed by the Hon’ble Supreme Court, therefore, the contention of Mr. Udawat, learned Additional Advocate General, cannot be sustained.
13. In the result, we allow the writ petition and quash the order dated 17-10-1990 (Annex. 5) qua the respondent No. 2 and petitioner and declare that the petitioner shall continue to be the Public Prosecutor, Jodhpur and he will be entitled to all consequential benefits including the retainers fees from the date of termination and he shall continue to discharge the functions of Public Prosecutor till his term or any other order is passed in accordance with law.
No orders as to costs.