JUDGMENT
Shiv Kumar Sharma, J.
1. Should the expression ‘without assigning any reason’ be equated with ‘without existence of any reason’? This meaningful question falls for consideration in the instant writ petition.
2. Rule 16(1) of the Rajasthan Law and Judicial Department Manual, 1952 (for short 1952 Manual) provides that “Government may, at any time and without assigning any reason, dispense with the service of a Public Prosecutor after giving him one month’s notice.” Under this provision second respondent vide order dated January 4, 1999 intimated the petitioner that his services as Additional Public Prosecutor were no longer required and the same be treated as terminated on the expiry of one month from the date of the order. Against this order that the present action of filing the writ petition has been resorted to by the petitioner.
3. The petitioner came to be appointed as Additional Public Prosecutor cum Government Advocate for a period of six months on a fixed salary of Rs. 2000/- per month under Section 24 of the Code of Criminal Procedure read with Rules 12 and 14 of 1952 Manual by third respondent vide its order dated May 19, 1995. The petitioner was continued in the service after expiry of six months though no formal order was issued. In continuation to order dated May 19, 1995 the services of the petitioner were extended till further orders by the third respondent vide its order dated August 21, 1998. Thereafter order dated January 4, 1999 was issued as indicated hereinabove. The stand taken by the petitioner is that as per the provisions of 1952 Manual the services of the petitioner shall be deemed to have been further extended for a period of three years vide order dated August 21, 1998 and he could not have been removed by one stroke of pen without application of mind as no ground existed with the Government to terminate his appointment. It was bounden duty of the Government to disclose the reasons and facts compelling it to terminate the services of the petitioner.
4. In the reply the respondents pleaded that the petitioner cannot claim any right to continue on the post of APP. Assigning any reason or providing opportunity of hearing was not necessary in view of Rule 16(1) of 1952 Manual. Provisions contained in the 1952 Manual are just and proper and do no suffer from any infirmity.
5. The petitioner submitted rejoinder in support of the grounds of the writ petition and stated therein that he was not paid a single penny against his salary from the month of March 1999 onwards and no other person has been appointed in place of the petitioner.
6. I have heard learned Counsel appearing for the parties and perused the record.
7. A close look at the provisions of 1952 Manual goes to show that its main purpose is to consolidate in one place the instructions for the control of Government litigation, issued from time to time in the form of circulars or general orders or rules. Rule 12 provides that for the purpose of making the appointment of Public Prosecutor recommendation from the District Magistrate may be called for by the Government. The District Magistrate after consulting the District and Sessions Judge demi-officially submit the opinion of the Judge alongwith has own submit the list of the advocates to the Government. The Public prosecutor shall be initially appointed on probation for a period of six months under Rule 14 and after receiving the satisfactory report from the District Magistrate he shall be confirmed. If the work of Public Prosecutor is found unsatisfactory he may be removed without notice or his period of probation may be extended. As per Rule 15 the Public Prosecutor shall be appointed for a period of three years inclusive of period of probation. He may be reappointed for further period not exceeding three years at a time and Government at any time without assigning any reason may dispense with his services under Rule 16(1). It appears that Rule 12 was drafted in view of Sub-section (3) of Section 24 of the Code of Criminal Procedure, 1973 which says that the District Magistrate shall prepare panel of names of persons fit to be appointed as P.P. or APP with the Sessions Judge. According to Section 24(4) no person shall be appointed as PP or APP unless his name appears on the panel of names prepared by the District Magistrate.
8. The Public Prosecutor or Additional Public Prosecutor is associated with mission of assisting court. Appointment to the office of Public Prosecutor or Additional Public Prosecutor is governed by the statutory provisions contained in Section 24 of the Code of Criminal Procedure. Just as abolition of all courts due to “financial constraints” cannot even be visualised, so also no appointment of a Prosecutor to conduct cases in criminal courts cannot be permitted. The power of the Public Prosecutor incharge of the case is derived from statute and the guiding consideration for it, must be the interest of administration of justice. In Shrilekha Vidyarthi v. State of U.P. , their Lordships of the Supreme Court indicated thus:
There can be no doubt that this function of the Public Prosecutor relates to a public purpose entrusting him with the responsibility of so acting only in the interest of administration of justice. In the case of Public Prosecutor, this additional public element flowing from statutory provisions in the Code of Criminal Procedure, undoubtedly, invest the Public Prosecutors, with the attribute of holder of a public office which cannot be whittled down by the assertion that their engagement is purely professional between a client and his lawyer with no public element attaching to it.
9. In the instant case, admittedly no other person has been appointed a Additional Public Prosecutor in the place of the petitioner. This is also not the case of the respondents that Panel of the Advocates has been received from the District Magistrate as per Section 24(3) Cr.P.C. read with Rule 12 of 1952 Manual under these circumstances it appears that by terminating the services of the petitioner the respondents intend to keep the post of Additional Public Prosecutor Kotputli vacant. This cannot be permitted in the interest of administration of justice.
10. The expression ‘without assigning any reason’ in Rule 16(1) of 1952 Manual only means that the reason for which the termination is made need not be assigned or communicated to the appointee and expression ‘at any time’ used in the said section implies that the termination may be made even during the subsistence of the term of appointment. But the expression ‘without assigning any reason’ cannot be equated with ‘without existence of any reason’. Reasons may not be communicated but must be existent. Without existence of cogent reasons the decision would be arbitrary.
11. Their Lordships of the Supreme Court in Liberty Oil Mills v. U.O.I. , propounded that the expression ‘without assigning any reason’ implies that the decision has to be communicated but reasons for the decision have not to be stated; but the reasons must exist, otherwise the decision would be arbitrary.
12. In Shrilekha Vidhyarthi v. State of U.P. (supra) Hon’ble Supreme Court considered the case of Liberty Oil Mills and held that the non-assigning of reasons or the non-communication thereof may be based on public policy, but termination of an appointment without the existence of any cogent reason in furtherance of the object for which the power is given would be arbitrary and therefore, against the public policy.
13. In State of U.P. v. Ramesh Chandra Sharma the act of the Government in refusing the renewal of appointment of District Government Counsel on non-existent ground was held to be arbitrary.
14. Procedure contained in Section 24 Cr.P.C. was not followed by the District Magistrate in Harpal Singh Chauhan v. State of U.P. . Under those circumstances Hon’ble Supreme Court observed that Assistant District Government Counsel (Criminal) cannot claim as a matter of right that his term should be extended or he should be appointed against the existing vacancy but he can certainly make a grievance that either he has not received the fair treatment by the appointing authority or that the procedure prescribed has not been followed. While exercising the power of judicial review the court can examine whether there was any infirmity in the ‘decision making process’ but the court can not substitute its own judgment over the final decision taken in respect of selection of persons for those posts.
15. In State of U.P. v. U.P. State Law Officers Association the appointments of Law Officers, were made on personal or political considerations other than merit. There was stipulation in the order that appointment was terminable at any time without assigning reasons. Hon’ble Supreme Court under those circumstances held that those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary.
16. This Court decided as many as eleven writ petitions involving the appointment of Public Prosecutors on September 6, 1999 inclusive of S.B. Civil Writ Petition No. 386/98 Ram Chandra Joshi v. State of Rajasthan on the basis of facts of each case. None of the case is similar to the facts of the instant case.
17. The principles that may be deduced from the above discussions may be summed up thus:
(i) The expression “without assigning any reason” cannot be equated with “without existence of any reason.” Communication of reason is not necessary but reason must exist. The decision without existence of reason would be arbitrary.
(ii) The State Government can not be permitted to keep the post of Public Prosecutor or Additional Public Prosecutor vacant. It would tantamount to making interference with the administration of justice.
18. As no other person has been appointed by the respondents as Additional Public Prosecutor in place of the petitioner, I am of the view that no reason to terminate the services of the petitioner existed. Services of the petitioner are very much required in the Court of Additional Sessions Judge Kotputli but without existence of any reason, the third respondent in the impugned order dated January 4, 1999 intimated the petitioner that his services were no longer required. I find infirmity in the ‘decision making process’ of the respondents. The purpose of judicial review as said in Chief Constable of the North Wales Police v. Evans (1982) 3 All. E.R. 141 is to ensure that the individual receives fair treatment. But in the instant case I am of the firm view that the petitioner has not received the fair treatment by the respondents. Under these circumstances it is difficult to agree with the submissions advanced before me by Shri S.M. Mehta, learned Advocate General in respect of validity of action on the part of the State Government. The impugned order dated January 4, 1999 must therefore, perish on the ground of arbitrariness which is an available ground for judicial review in such a situation.
19. Resultantly, writ petition stands allowed, the order dated January 4, 1999 is set aside and the respondents are directed to continue the petitioner on the post of Additional Public Prosecutor till the fresh appointment is made in accordance with Section 24 of the Code of Criminal Procedure, 1973 read with Rules 12 and 14 of the 1952 Manual. Costs easy.
