ORDER
K.K. Lahoti, J.
1. This batch of petitions involving common question of law based on similar facts is being decided by this common order. For the sake of convenience, facts are taken from Writ Petition No. 4535 of 2004. The facts are common, but details necessary for this petition are as under :–
Sr. W.P. No. Petitioner's Name Posted as Date of Date of order of
No. Appointment removal
1. 4522/04 Rajendra Tiwari IInd Addl. 1-6-2000 18-10-2004 (Ann. P-6)
Government
Prosecutor
2. 4527/04 Vinay Kumar Jain Govt. Pleader 16-9-2003 20-10-2004 (Ann. P-3)
3. 4528/04 Indra Bhusan Shrivastava Govt. Pleader 24-7-2003 20-10-2004 (Ann. P-3)
4. 4529/04 Choudhary Jogendra Singh Govt. Pleader 5-7-2003 20-10-2004 (Ann. P-4)
5. 4535/04 Phool Mohammad Mansoori A.G.P. 7-12-2002 18-10-2004 (Ann. P-1)
6. 4539/04 Vijay Khare A.G.P. 7-12-2002 18-10-2004 (Ann. P-1)
7. 4557/04 Yaduvanshmani Pandey Govt. Advocate 31-12-1995 18-10-2004 (Ann. P-5)
8. 4558/04 Ramprasad Dwivedi Ist A.G.P. 31-3-1997 18-10-2004 (Ann. P-5)
9. 4683/04 Guru Pd. Mishra A.G.P. 1-4-1999 18-10-2004 (Ann. P-1)
All the petitioners were appointed by the State of Madhya Pradesh under Para 15 of Law Department Manual. The term of all the Advocates has not expired so far and by identical orders, (one of which is quoted hereunder) the petitioners' services have been dispensed with :
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2. In all the orders, the State Government has assigned the reason that as per the complaints received by the State Government from the Dist. Magistrate the working of the petitioner was not found satisfactory and has been removed by one month's notice.
3. The aforesaid order is challenged by the petitioner on following grounds:--
(a) That the petitioner has not completed his term and was entitled to complete his term. As per Para 18 of the Manual, normal tenure is three years from the date of appointment or till the termination of term.
(b) The respondents have shown reason in the order that the performance of the petitioner was not satisfactory. This order is stigmatic, and the respondents ought to have afforded an opportunity of hearing to the petitioner before passing such an order.
(c) That the petitioner is entitled to know the reason why he has been removed from such office. He is working as a Public Prosecutor on behalf of the State and virtually discharging a very important and responsible duties in the District as Government Pleader/Additional Government Pleader.
(d) That the petitioner was initially appointed on probation and after completion of the probation period of one year, he was confirmed and term was extended. In these circumstances, he was entitled to continue in office for full term.
(e) That the order being stigmatic in nature and will affect the career of the petitioner.
(f) That there is no material against the petitioner with the respondents, warranting termination of the term.
(g) That in all the case identical orders are issued by the respondents, which are sterio type and has been issued without application of mind.
(h) The petitioner was appointed after due recommendations from the Sessions Judge and the District Magistrate of the concerned district. In these circumstances, when the petitioner was duly recommended by the aforesaid District authorities, then the petitioner was entitled a reasonable opportunity of hearing from respondents. The petitioner has placed his reliance to the judgments of the Apex Court in Shrilekha Vidyarthi v. State of U.P., AIR 1991 SC 537 and State of U.P. v. Johri Mal, 2004 AIR SCW 3888, and a Division Bench judgment of this Court in Debiprasad Sharma v. State of M.P. and Ors., M.P. No. 3325 of 1990, decided on 16-9-1992 and contended that this petition be allowed and the impugned order be quashed.
4. The learned Deputy Advocate General supported the order on following grounds:–
(i) That the order has been passed in compliance of Para 19 of the Law Department Manual and one month’s notice has been given to the petitioner.
(ii) The order was issued because the petitioner’s performance was found unsatisfactory, and the State Government decided to terminate the term of the petitioner by issuance of one month’s notice.
(iii) That the State Government after termination of the term of the petitioner has appointed other persons as Public Prosecutors/Additional Public Prosecutors and if the order is quashed, the other persons will be affected. He has also placed his reliance to Para 13 of the judgment of the Apex Court in Johri Mal’s (supra).
5. To consider rival contentions of the parties, it is necessary to look into the following facts :–
The Government Pleader/Public Prosecutor and Additional Government Pleader/Additional Public Prosecutor are being appointed as per procedure of Law Department Manual. Relevant Paras are 15, 17, 18 and 19, in this petition.
“15. Appointment.–All appointments of Public Prosecutors and Additional Public Prosecutors shall be made by Government. Government may call for recommendations for these posts from the District Magistrate at the headquarters of the sessions division of other area concerned. The District Magistrate shall then consult the District and Sessions Judge demi-officially and submit the latter’s opinion alongwith his own and also a list of pleaders practicing in his district to Government.
17. Probation and confirmation.– (1) Every Government pleader or Additional Government Pleader shall be considered to be on probation for a period of one year from the date of his taking charge. At the end of that period, the District Magistrate shall submit a report through the District and Sessions Judge to Government upon his conduct and ability. Should his work prove to have been unsatisfactory, his services may be dispensed without notice, should the report be satisfactory he shall be confirmed. For any sufficient reason Government may extend the period of probation.
(2) The District Magistrate shall, by the 15th January each, submit a report to Government through the District and Sessions Judge upon the conduct and ability of the Public Prosecutor or the Additional Public Prosecutor who has been confirmed under Sub-rule (1). The report shall marked confidential.
18. Term of office.– A Government Pleader or Additional Government Pleader shall be appointed for a period of three years, excluding the period of his probation and may be reappointed for further period not exceeding three years at a time. Ordinarily no person will be appointed a Government Pleader or an Additional Government Pleader after he attains the age of sixty two years or continued in that office after he attains that age. Notwithstanding the expiry of the period, a Government Pleader or Additional Government Pleader shall continue as such, until he is reappointed or his successor is appointed.
19. Termination of term.– (1) Government may, at any time and without assigning any reason, dispense with the service of a Public Prosecutor or an Additional Public Prosecutor after giving him one month’s notice.
(2) A Public Prosecutor or an Additional Public Prosecutor may resign his appointment after giving one month’s notice.”
Section 24 of the Code of Criminal Procedure, 1973 envisaged for the appointment of Public Prosecutor/Assistant Public Prosecutor. Sections 24 and 25 of the Code read thus :–
“24. (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.
(2) The Central Government may appoint one or more Public Prosecutors, for the purpose of conducting any case or class of cases in any district or local area.
(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district:
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public prosecutor or an Additional Public Prosecutor, as the case may be, for another district.
(4) The District 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 Prosecutors 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).
(6) Notwithstanding anything contained in Sub-section (5), where, in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only among the persons constituting such Cadre:
Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate, under Sub-section (4).
(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under Sub-section (1) or Sub-section (2) or Sub-section (3) or Sub-section (6), only if he has been in practice as an Advocate for not less than seven years.
(8) The Central Government or the State Government may appoint for the purposes of any case or class of cases, a person who has been in practice as an Advocate for not less than ten years as a Special Public Prosecutor.
(9) For the purpose of Sub-section (7) and Sub-section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an Advocate.”
25. (1) The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecution in the Courts of Magistrates.
(1-A) The Central Government may appoint one or more Assistant Public Prosecutors for the purpose of conducting any case or class of cases in the Courts of Magistrates.
(2) Save as otherwise provided in Sub-section (3), no police officer shall be eligible to be appointed as an Assistant Public Prosecutor.
(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint any other persons to be Assistant Public Prosecutor in charge of that case :
Provided that a police officer shall not be so appointed–
(a) if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted; or (b) if he is below the rank of Inspector."
The aforesaid provisions provide that the State Government for the appointment of Public Prosecutor and Additional Public Prosecutor shall call the recommendation from the District Magistrate at the Headquarter of Sessions Division or other area concerned. The District Magistrate after consultation with District and Sessions Judge demi officially submit his letter of opinion to the State Government. From the list prepared by the District Magistrate in this regard, the Government Pleader or the Additional Government Pleader (as the case may be) shall be appointed initially on probation for a period of one year from the date of his taking charge. At the end of the period of probation, the District Magistrate shall submit a report through the District and Sessions Judge to the State Government about his conduct and ability. If his working is not found satisfactory, his Services may be dispensed with. If the work is found satisfactory, then the Government Pleader shall be appointed for a period of 3 years excluding the period of his probation and he may be further reappointed for further period not exceeding 3 years at a time. The Government has power at any time to dispense with the services of a Public Prosecutor or an Additional Public Prosecutor after giving him one month’s notice without assigning any reason.
6. The question of termination of District Government Counsel was considered by the Apex Court in Shrilekha Vidyarthi’s case (supra) where en bloc of all District Government Counsel in State of U.P. were removed without assigning any reason. The matter was contested by the District Government Counsel before the Apex Court and the Apex Court considering legal position held:–
“13. The learned Additional Advocate General contended that Clause 3 of Para 7.06 says that the appointment of a District Government Counsel is only professional engagement terminable at will on either side and not appointment to a post under the Government; and the Government has the power to terminate the appointment at any time ‘without assigning any cause’. He contended that this power to terminate the appointment at any time without assigning any cause and the clear statement that the appointment is only professional engagement terminable at will on either side is sufficient to indicate that the relationship is the same as that of a private client and his Counsel in our opinion, this provision has to be read not in isolation, but in the context in which it appears and alongwith the connected provisions, already referred. The expression ‘professional engagement’ is used therein to distinguish it from ‘appointment to a post under the Government’ in the strict sense. This, however, does not necessarily mean that a person who is not a Government servant holding a post under the Government does not hold any public office and the engagement is purely private with no public element attaching to it. This part of Clause 3 of Para 7.06 means only this and no more. The other part of Clause 3 which enables the Government to terminate the appointment ‘at any time without assigning any cause’ can also not be considered in the manner, suggested by the learned Additional Advocate General. The expression ‘at any time’ merely means that the termination may be made even during the subsistence of the term or appointment and ‘without assigning any cause’ means without communicating any cause to the appointee whose appointment is terminated. However, ‘without assigning any cause’ is not to be equated with ‘without existence of any cause’. It merely means that the reason for which the termination is made need not to be assigned or communicated to the appointee. It was held in Liberty Oil Mills v. Union of India, (1984)3 SCC 465 : AIR 1984 SC 1271, that the expression ‘without assigning any reason’ implies that the decision has been communicated, but reasons for the decision have not to be stated, but the reasons must exist, otherwise, the decision would be arbitrary. The non-assigning of reasons or the non-communication there of 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 public policy. Clause 3 of Para 7.06 must, therefore, be understood to mean that the appointment of a District Government Counsel is not to be equated with appointment to a post under the Government in the strict sense, which does not necessarily mean that it results in denuding the office of its public character, and that the appointment may be terminated even during currency of the term by only communicating the decision of termination without communicating the reasons which led to the termination. It does not mean that the appointment is at the sweet will of the Government which can be terminated at any time, even without the existence of any cogent reason during the subsistence of the term. The construction, suggested on behalf of the State of U.P. of this provision, if accepted, would amount to conceding arbitrary power of termination to the Government, which by itself sufficient to reject the contention and thereby save it from any attack to its validity.”
7. The appointment of a District Government Counsel by the State Government is not a professional engagement like that between a private client and his lawyer, or that it is purely contractual with no public element attaching to it, which may be terminated at any time at the sweet will of the Government. The said order of termination may be judicially reviewed. For the said office, the Apex Court found public element is attached to the office or post, and Article 14 of the Constitution of India attracts, and the question of validity of order may be judicially reviewed. The Apex Court further held thus :–
“……Applicability of Article 14 to all executive actions of the State being settled and for the same reason its applicability at the threshold to the making of a contract in exercise of the executive power being beyond dispute, can it be said that the State can thereafter cast off its personality and exercise unbridled power unfettered by the requirements of Article 14 in the sphere of contractual matters and claim to be governed therein only by private law principles applicable to private individual whose rights flow only from the terms of the contract without anything more ? We have no hesitation in saying that the personality of the State, requiring regulation of its conduct in all spheres by requirements of Article 14, does not undergo such a radical change after the making of a contract merely because some contractual rights accrue to the other party in addition. It is not as if the requirements of Art. 14 and contractual obligation are alien concepts, which can not co- exist.”
8. Recently the Apex Court has considered similar question in Johri Mal’s case (supra). The Apex Court considering the appointment of Public Prosecutor held:–
“39. The appointment of public prosecutors, on the other hand, are governed by the Code of Criminal Procedure and/or the executive instructions framed by the State governing the terms of their appointment. Proviso appended to Article 309 of the Constitution of India is not applicable in their case. Their appointment is a tenure appointment. Public Prosecutors, furthermore, retain the character of legal practitioners for all intent and purport. They, of course, discharge public functions and certain statutory powers are also conferred upon them. Their duties and functions are onerous but the same would not mean that their conditions of appointment are governed by any statute or statutory rule.’
76. In the matter of engagement of a District Government Counsel, however, a concept of public office does not come into play. However, it is true that in the matter of Counsel, the choice is that of the Government and none can claim a right to be appointed. That must necessarily be so because it is a position of great trust and confidence. The provision of Article 14, however, will be attracted to a limited extent as the functionaries named in the Code of Criminal Procedure are public functionaries. They also have a public duty to perform. If the State fails to discharge its public duty or act in defiance, deviation and departure of the principles of law, the Court may interfere. The Court may also interfere when the legal policy laid down by the Government for the purpose of such appointments is departed from or mandatory provisions of law are not complied with. Judicial review can also be resorted to, if a holder of a public office is sought to be removed for reason de hors the statute.
77. The appointment in such a post must not be political one. The Manual states that a political activity by the District Government Counsel shall be a disqualification to hold the post.
78. We can not but express our anguish over the fact that in certain cases recommendations are made by the District Magistrate having regard to the political affinity of the lawyers to the party in power. Those who do not have such political affinity although competent are not appointed. Legal Remembrancers Manual clearly forbids appointment of such a lawyer and/or if appointed, removal from his office. The District Judge and the District Magistrate, therefore, are duty bound to see that before any recommendation is not made, or any political affinity. They must also bear in mind that the Manual postulates that any lawyer who is guilty of approaching the authorities would not be entitled to be considered for such appointment.
79. The State, therefore, is not expected to rescind the appointments with the change in the Government. The existing panel of the District Government Counsel may not be disturbed and a fresh panel come into being, only because a new party has taken over change of the Government.”
9. The Division Bench of this Court has also considered question of termination of Public Prosecutor in Padmadhar Pandey’s case (supra). The Division Bench held :–
“5. The second question of somewhat general and greater importance is with regard to the status and nature of the office of the Government Pleader and the Public Prosecutor. In the case of Ku. Shrilekha Vidyarthi (supra), it has been held that the appointment to or termination from the office involves public element and, therefore, the State Government can not act arbitrarily and has to support its action based on reason and the provisions contained in the Law Department Manual. The appointment to the office and termination therefrom is said to involve public element because the holder of the office has to discharge duties towards general public in the matter of conducting criminal prosecutions and civil cases in which the State is a party. The folder of the office is paid from the State exchequer. In view of the above decision of the Supreme Court, it has to be held that the office is of a public nature and the State is enjoined to act fairly, reasonably and with advertence to the provisions of the Law Department Manual. Mere change of Government or a policy decision taken in the Ministry or the Law Secretariate, can not be in themselves be good reason for making fresh appointment to the office and for termination and dismissal from it. The practice to continue or discontinue an incumbent of the office at the pleasure, whim, caprice and fancy of the authorities in power has to be deprecated because it not only belittles the dignity of the office, but also harms the cause of administration of justice. The holder of the office is in law and ‘agent’ of the Government when defending or handling civil cases as per the provisions of the Civil Procedure Code. He is a prosecutor under Criminal Procedure Code on behalf of the Government in criminal cases. But he is not a mere mouthpiece of the Government or servant or an agent in general sense as is sought to be understood. He holds a dignified office and status and discharges duties and functions not only towards the State to which he represents, in the cases before the Law Courts, but has also obligation towards the society. He is expected to uphold the law and help in administration of justice and may in given circumstances or cases advice the Government to withdraw the case or not to contest the same to serve the cause of public or the justice.
“8……A reasonable length of tenure and honourable status is contemplated in the said rules. Rule 17(1) requires appointment, to begin with, on probation for a period of one year. Thereafter, on the basis of report of the concerned District Magistrate/District and Sessions Judge concerned, about his conduct and ability, the probationer deserves to be confirmed. If his work during the probation period is found unsatisfactory, his services may be dispensed with without notice. The period of probation, however can be extended, The provision of Rule 18 lays down that he has to be appointed for a period of three years excluding the period of probation and may be appointed for a further period not exceeding three years at a time. Normally he is not to be continued after he attains age of 62 years. There can, however, be exceptions in that regard. The existing appointee continues in office notwithstanding the expiry of his term until he is reappointed or his successor is appointed. Rule 19, which provides for termination of his term at any time on one month’s notice has to be construed in the light of the provisions contained in Rules 17 and 18. It is lamentable that there are instances on record where Rules 17 and 18 in the matter of appointment and fixing term of Government Pleaders/Public Prosecutors have not been followed and resort to Rule 19 is thus made possible, exposing the incumbent to the risk of being terminated arbitrarily on ‘hire and fire rule’. In order to give effect to the above discussed rules, contained, to be assured to the competent and able lawyers who happen to be appointed to the offices and they be not thrown at the mercy of the Government or whims and choice of the persons of the Law Ministry and its Department. Rule 19 permitting termination of term of an incumbent by giving him one month’s notice and without assigning any reason can not be read to mean that a right is reserved with the Government thereby to dispense with an appointee without existence of any reason. Such arbitrary exercise of powers would be violation of rule of law and would be detrimental to the administration of justice. The appointment of competent lawyers for representing and defending the State in civil and criminal matters is must for efficient administration of justice. In order that the talented and competent members of the legal profession are attracted to accept the assignments as Government Pleaders/Public Prosecutors, it is necessary that Rules 17 and 18 governing initial period of probation followed by confirmation and minimum three years appointment have to be rigorously followed, otherwise no self-respecting and honourable member of the profession would be willing to accept the assignment and thereby the entire machinery of dispensation of justice in law Courts would seriously hampered.”
10. It is not in dispute that the petitioner was initially appointed and thereafter he was appointed on probation for a fixed term. Before completion of his term, the respondents have removed him from the office of Public Prosecutor. The petitioner has been removed on the ground that his performance was unsatisfactory and the aforesaid performance has been found on the basis of some complaint received against the petitioner. It is also not in dispute that neither show-cause notice was issued to the petitioner nor any opportunity of hearing was provided to him. The petitioner is not aware what are the circumstances against him resulting his termination. In all cases, the State Government was afforded opportunity to produce the record about the complaints in the case, but the State Government has not produced any material showing what were the complaints, their nature or any enquiry so held. In these circumstances, firstly it has to be seen whether the order of State Government terminating the term of the petitioner is stagmatise or a simple order of termination of the term. It is settled law that by a simple termination order without assigning any reason, the services of Public Prosecutor or the Additional Public Prosecutor may be dispensed with. If the order is challenged then the Government can support the order by producing record that reasons are in existence and due to unsatisfactory performance the order of termination was issued without any stigma. Then only the order can be sustained. The Government may be having reasons to pass such an order but the order may be without stigma. In the present case, the reasons are assigned and the order shows that on the basis of some complaints, the performance was found unsatisfactory. The ‘stigma’ is something that detracts from the character or reputation of a person indicating something abnormal or substandard. It is a sear, defect, blemish, a disgrace to any one. In the context of an order of termination, stigma would mean a statement in the order indicating his misconduct or lack of integrity. Ordinarily when a Government servant during probation is terminated on the ground that service were not satisfactory has been held to be non-stigmatic. But in the case of an Advocate, it matters seriously. The appointment of a Public Prosecutor or Assistant Public Prosecutor has a complete procedure. A mandatory requirement for the appointment is, recommendation by the District Magistrate after due consultation with the Sessions Judge. Normally a person of unsatisfactory performance will never be recommended by the aforesaid authorities. When an Advocate of performance, knowledge and ability is appointed as Public Prosecutor or Additional Prosecutor, it means that the Sessions Judge and the District Magistrate both were confident about his integrity, ability and performance. Initially appointment was made on probation, and after due performance, on the recommendation of Sessions Judge, the Public Prosecutor or the Additional Prosecutor continues to hold the office. In these circumstances, when a complaint is received, natural consequence must be either a show-cause notice to the Advocate or some enquiry from the Sessions Judge or from the District Magistrate and until and unless such procedure is adopted, removing Public Prosecutor or Additional Public Prosecutor on the ground of complaints and using word ‘unsatisfactory’ is apparently stigmatic. An Advocate having 7 years standing in the profession is entitled to be appointed as Public Prosecutor/Assistant Public Prosecutor. The aforesaid criteria is very important and only a person having 7 years practice will be eligible to be appointed as Public Prosecutor or Additional Public Prosecutor. After appointment he enjoys the office having faith of the District Administration and of the State. In aforesaid circumstances if the services of the Public Prosecutor or Additional Public Prosecutor is dispensed with the reason that his performance was unsatisfactory, naturally it will cause stigma on his entire career or his further appointment as Government Advocate or Public Prosecutor. The petitioner enjoys a reputation in the society and works on the faith of the society that he will plead the case of the public on behalf of State in the Court of law, i.e., with ability and performance. If this message goes to the public that certain person has been removed from the office of Government Pleader or Public Prosecutor because of his unsatisfactory performance, it will cause serious stigma on his entire career. It will affect reputation, grace, and imputation, shame in the society. In aforesaid circumstances, the order dispensing with the service of the petitioner with stigma can not be sustained under the law. All the petitions based on similar facts and involve similar question of law, deserve to be allowed. The impugned orders dispensing with services of the petitioners because of unsatisfactory performance by issuance of one moth’s notice, are hereby quashed. Any consequential order passed by the State Government after passing of the impugned order or filing this petition shall not come in the way of petitioner to perform his duty as Government Pleader or Additional Government Pleader as the case may be.
11. All the petitioners shall be entitled for the cost which is quantified Rs. 1,000/- in each case payable by the respondents.