JUDGMENT B.S. Chauhan, J.
1. This writ petition has been filed for quashing the impugned advertisement dated 22nd October, 2003 (Annexure-2) and the preceding Government Order dated 27th September, 2003 (Annexure-3), providing for appointment of D.G.C. (Criminal) and Additional Government Advocate in District Ballia.
2. Facts and circumstances, giving rise to this case are that petitioners No. 1 to 4 were appointed as Assistant District Government Counsel (Criminal), vide order dated 27th July, 1992 and petitioner No. 5 as Additional Government Advocate vide order dated 3rd August, 1992 in District Ballia (Annexures-4 and 5), for a period of one year, i.e., upto 31st July, 1993. Their appointment had been renewed from time to time. Last renewal was made on 30th October, 2000 for a period of three years, i.e., upto 29th October, 2003 by the State Government. Instead of renewing the cases of the petitioners, an advertisement dated 22nd October, 2003 (Annexure-2) has been issued in pursuance of the Government Order dated 27th September, 2003 (Annexure-3) inviting applications for the said post under Para 7.03 of the U.P. Legal Remembrancer Manual (hereinafter called the 'L.R. Manual'). This petition has been filed for quashing the same contending that the petitioners have a right of being considered for renewal under the provisions of the said L.R. Manual.
3. Shri Yogesh Agarwal, learned Counsel for the petitioners has submitted that once, the petitioners had been appointed under the provisions of the L.R. Manual and Section 24 of the Code of Criminal Procedure, the question of non-consideration of their cases for renewal amounts to violation of the statutory provisions and therefore, the said advertisement and the Government Order are liable to be quashed.
4. On the contrary, learned Standing Counsel has submitted that the petitioners, had been appointed in 1992 and continued for more than a decade. In the mean while, many lawyers had fulfilled the eligibility and they are also entitled to be considered for the said post. Therefore, the petitioners cannot claim that vacancies cannot be filled up by considering the cases as fresh and restricting the vacancies to be fill up by renewal, would amount to violation of Articles 14 and 16 of the Constitution of India, qua those Advocates who have attained eligibility after appointments of the petitioners. More so, renewal is also a mode of appointment and if petitioners are interested to continue on the post, they can apply afresh but they cannot claim relief sought in the petition and therefore, the petition is liable to be dismissed.
5. We have considered the rival submissions made by the learned Counsel for the parties and perused the record.
6. The learned Standing Counsel did not ask for time to file counter-affidavit, rather suggested that as the issue involved herein is a pure question of law, i.e., entitlement of the petitioners for renewal of their term, the matter be heard finally. We accepted the suggestion made by the learned Standing Counsel.
7. The relevant provisions for our consideration are Section 24 of the Code of Criminal Procedure and Paras 7.03, 7.06 and 7.08 of the U.P. L.R. Manual. Section 24 of the Cr.P.C. reads as under :--
"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) 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 Prosecutor of Additional Public Prosecutor for the District unless his name appears in the panel of names prepared by the District Magistrate under Sub-section (4)................."
8. Paragraphs 7.03, 7.06 and other paragraphs of the L.R. Manual provides for eligibility and mode of appointment of the Government Advocate. A member having 5 years expedience as a practicing lawyer may apply giving the particulars, such as age, length of practice at the Bar, proficiency in Hindi and Income-tax paid by him on professional income during last 3 years and the application shall be considered by the District Collector in consultation with the District Judge of the concerned district. The District Judge shall make recommendation/opinion about his suitability, merit, character, profession conduct and integrity. He shall also make an assessment of the proficiency of the candidate in civil, criminal and revenue law. Once appointment is made, it would be merely a professional engagement and once a person so appointed can continue upto age of 60 years, if his term is renewed from time to time. Even beyond 60 years of age, his tenure can be renewed considering his physical as well as proficiency in the profession etc.
9. Paragraph 7.08 of the L.R, Manual deals with renewal of the term, which reads as under :--
"7.08. Renewal of term.--(1) At least three months before the expiry of the term of a District Government Counsel, the District Officer shall after consulting the District Judge and considering his past record of work, conduct and age, report to the Legal Remembrancer, together with the statement of work done by him in Form No. 9 whether in his opinion the term of appointment of such Counsel should be renewed or not. A copy of the opinion of the District Judge should also be sent along with the recommendations of the District Officer.
(2) Where recommendation for the extension of the term of a District Government Counsel is made for a specified period only, the reasons, therefore, shall also be stated by the District Officer.
(3) While forwarding his recommendation for renewal of the term of a District Government Counsel--
(i) the District Judge shall give an estimate of the quality of the Counsel's work from the judicial stand point, keeping in view the different aspects of a lawyer's capacity as it is manifested before him in conducting State cases, and specially his professional conduct;
(ii) the District Officer shall give his report about the suitability of the District Government Counsel from the administrative point of view, his public reputation in general, his character, integrity and professional conduct.
(4) If the Government agrees with the recommendations of the District Officer for the renewal of the term of the Government Counsel, it may pass orders for re-appointing him for a period not exceeding three years.
(5) If the Government decides not to re-appoint a Government Counsel, the Legal Remembrancer may call upon the District Officer to forward fresh recommendations in the manner laid down in Para 7.03.
(6) The procedure prescribed in this para shall be followed on the expiry of every successive period of renewed appointment of a District Government Counsel.
NOTE.--The renewal beyond 60 years of age shall depend upon continuous good work, sound integrity and physical fitness of the Counsel."
10. The appointment of Public Prosecutors is contemplated under the provisions of Section 24 Cr PC and the Rules contained in the Manual. The Rules in the Manual may not be having statutory force, but so far they are in consonance with the provisions of Section 24 CrPC, the can be no difficulty in their observance or asking for strict adherence to the same. The Public Prosecutor may not be holding a civil post under the State in strict-legal sense but as the public element is involved therein, it is not permissible for the authorities to deviate from provisions providing for their appointment or removal.
11. In Mukul Dalal v. Union of India and Ors., (1988) 3 SCC 144, the Apex Court observed as under :--
"The office of the Public Prosecutor is a public one...... The primacy given to the Public Prosecutor under the scheme of the Code has a special purpose......"
12. When Advocates are appointed to the office of Public Prosecutor, "they have certain professional and official obligations and privileges." [Vide K.C. Sud v. S.G. Gudimani, (1981) 2 Cri LJ 1779). It has also invariably been held that a Government Advocate holds an office of profit. (Vide Mahadeo v. Shantibhai, (1969) 2 SCR 422; Madhukar G.E. Pankakar v. Jaswant Chobbildas Rajani and Ors., AIR 1976 SC 2283 and Kanta Kathuria v. Manak Chand Surana, AIR 1970 SC 694].
13. In Rabindra Kumar Nayak v. Collector, Mayurbhanj, Orissa, JT (1999) 1 SC 591, the Hon'ble Apex Court held that where the permanency is attached to the office and not to the term for which an Advocate holds it, the person may come and go in succession but so long he holds the office, he is disqualified to contest the election. In Mundrika Prasad Sinha v. State of Bihar, AIR 1979 SC 1871, the Court approved the observation made by the Madras High Court in Ramachandran v. Alagiriswami, AIR 1961 Mad 450, wherein it has been observed as under :--
"The duties of a Government Pleader..... are duties of a public nature.... Besides, even if his only duty is the conduct of cases in which Government have been impleaded, still as explained more than once before the public are interested in the manner in which he discharges his duties......having regard to the various functions and duties to be performed by him in the due exercise of that office, most of which are of an independent and responsible character, the office must be held to be a public office within the scope of a quo warranto proceeding."
14. In Mundrika Prasad Sinha (supra), the Apex Court held as under :--
"We do recognize its importance in our era of infiltration of politicking even in forbidden areas. A Government Pleader is more than an Advocate for a litigant. He holds a public office..... we must enter a caveat that Government under our Constitution should not play with law offices on political or other impertinent considerations as it may affect the legality of the action and subvert the rule of law itself."
15. Similarly, in Hitendra Vishnu Thakur v. State of Maharashtra, AIR 1994 SC 2623, the Hon'ble Supreme Court observed that a "Public Prosecutor is an important Officer of the State Government and is appointed by the State under the Code of Criminal Procedure. He is not a part of the investigating agency. He is an independent Statutory Authority."
16. After considering a catena of decisions, a Division Bench of Allahabad High Court in Vijay Shanker Mishra v. State of U.P. and Ors., 1999 Cri LJ 521, held that duties and functions of the Public Prosecutor are statutory. Even if he does not hold a civil post under the State, he holds a public office of trust under the State. It is an office of responsibility as he has been enclothed with the power to withdraw the prosecution of a case on the directions of the State Government.
17. Therefore, in view of the above, it is crystal clear that engagement of an Advocate as Public Prosecutor is not merely a professional engagement. Even if he does not hold a civil post under the State, he carries the responsibility and privilege of the Public Officer of great public importance and plays and important role in the administration of criminal justice. Neither his appointment nor removal can be made at the sweet will of the Government rather the same are guided by public interest, which has always been a paramount consideration in public administration.
18. In Harpal Singh Chauhan and Ors. v. State of Uttar Pradesh, AIR 1993 SC 2436, the Apex Court considered the provisions of Uttar Pradesh L.R. Manual and provisions of Section 24 Cr.P.C. and held that any appointment, which has been made without following the procedure of preparation of panel by the District Magistrate with consultation of the Sessions Judge, cannot be enforced being de hors the rules. The Court also considered the provisions of the U.P. L.R. Manual providing for renewal and re-appointment and held that it cannot be claimed as a matter of right and it will depend upon the performance.
19. The Court observed as under :--
"The framers of the Code were conscious on the fact that Public Prosecutors and the Additional Public Prosecutors have an important role, while prosecuting on behalf of the State, accused persons, who are alleged to have committed one or the other offences. Because of that, provisions have been made for their selection in the Code. It is for the Sessions Judge to assess the merit and professional conduct of the persons recommended for such appointment and the District Magistrate to express his opinion on the suitability of persons so recommended, from the administrative point of view.......... Sub-section (5) of Section 24 provides that no person shall be appointed.... 'unless his name appears in the panel of names of persons prepared by the District Magistrate under Sub-section (4).' The aforesaid section requires an effective and real consultation between the Sessions Judge and the District Magistrate about the merit and suitability of the persons to be appointed as Public Prosecutor..... That is why that it requires a panel of names of persons to be prepared by the District Magistrate with the consultation of the Sessions Judge. The same is the position so far as the Manual is concerned.... The District Judge, who is also the Sessions Judge, is to give his estimate of the quality and the work of Counsel from the judicial stand-point and the District Officer i.e., the District Magistrate is to report about the suitability of such person from administrative point of view."
20. Thus, it is abundant clear that appointment is to be made in consonance with the provisions of Section 24 Cr.P.C. and the relevant rules of the Manual. The expression 'panel of names of persons' does not mean suggestion of names by the Sessions Judge and some comments in respect of those names by the District Magistrate without proper consultation and discussion over such names. The statutory mandate is required to be complied with by the District Magistrate and the Sessions Judge in its true spirit. In absence of any provision in the Code or the Rules for extension or renewal, the same cannot be termed as having any legal sanctity.
21. In Kumari Shrilekha Vidyarthi v. State of U.P., AIR 1991 SC 536, the Apex Court had struck down the order of removal of the Public Prosecutors by the State Government and held that removal of all Public Prosecutors, in the State by one stroke of pen was without application of mind and thus, arbitrary and held that such an action of the State was totally unreasonable and the unfettered discretion is in appr