ORDER
E. Dharma Rao, J.
1. The petitioners herein who are practising advocates in the District Court, Mehboobnagar, have filed these writ petitions aggrieved of the process of decision making of the Government in appointing the 3rd respondent as Public Prosecutor for the third term for the Court of Sessions Judge, Mehboobnagar through G.O. Rt. No. 587 (L.A&J.; Courts.A.2) Department dated 13.5.2002, as per Section 24 of the Code of Criminal Procedure read with the administrative instructions contained in G.O. Ms. No. 187 Law (L) Department, dated 6.12.2000, for a period of three years from the date of taking charge of the post or till termination of his services whichever is earlier.
2. Before going into the merits of the cases, it is apposite to consider the power and pivotal position of the Public Prosecutor. Justice O. Chinnappa Reddy, speaking for the Bench, in the case of Rajender Kumar Jain v. State through Special Police Establishment and Ors., : 1980CriLJ1084 , held the Public Prosecutor as Minister of Justice. It is further observed that the Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its Minister of Justice. Both have a duty to protect the administration of criminal justiceagainst possible abuse and misuse by the Executive by resort to the provisions of Section 321 of the Code. The Apex Court described the position of the Public Prosecutor in the following words:
'.....The bureaucrat too should be careful not to use peremptory language when addressing the Public Prosecutor since it may give rise to an impression that he is coercing the Public Prosecutor to move in the matter...
3. The position of the Public Prosecutor was farther reiterated by the Apex Court in a decision Abdul Kareem v. State of Karnataka, 2001 SCC (Cri.) 59, commonly known as Veerappan case.
4. That being the position of the Public Prosecutor, in these writ petitions this Court is called upon to have a judicial scrutiny of the decision making of the Government to appoint the 3rd respondent as Public Prosecutor, for the third time, for the District and Sessions Court of Mehboobnagar.
5. The factual matrix in a narrow compass is that the names of petitioner No. 1 in Writ Petition No. 10443 of 2002 and the petitioner Nos. 6 and 8 in Writ Petition No. 9957 of 2002 figure in the panel recommended by the District Magistrate through his proceedings C3/6/2001 dated 15.5.2001 after, obtaining opinion of the District and Sessions Judge, Mehboobnagar, as required under Instruction 5 of the Andhra Pradesh Law Officers (Appointment and Conditions of Services) Instructions, 2000 (for brevity Instructions), on the ground that the term of office of the existing Public Prosecutor is going to expire by 21.7.2001. The District Magistrate of Mehboobnagar, has addressed a letter dated 1.1.2001 to the District and Sessions Judge, Mehboobnagar to arrange to send a panel of advocates for appointment as Public Prosecutor for District Court, Mehboobnagar, along with bio-dataurgently, so as to enable him to send the same to the Government. Accordingly, the District and Sessions Judge, Mehboobnagar, by his DO letter dated 14.5.2001 submitted a panel of five advocates, alongwith their bio-data. Thereafter, the District Collector, through his proceedings dated 15.5.2001 recommended the panel of five advocates for appointment as Public Prosecutor for the Sessions Court, Mehboobnagar, to the Government for its consideration. The Government, received the said panel On 24.5.2001 and immediately by Memo 18186/ Cts.A.2/2001-1 dated 4.6.2001 requested the District Collector, Mehboobnagar, to furnish the character verification, antecedents and bio-data particulars of the empanelled advocates with specification as to whether any Court cases relating to the subject-matter are pending. In the meanwhile, the third respondent herein has submitted a representation to the District Magistrate, Mehboobnagar, on 19.2.2001 to considerhis name for inclusion in the panel of advocates to be forwarded to the Government for appointment as Public Prosecutor for the third time.
6. It is pertinent to note that here that though the representation is made by the third respondent prior to the recommendation of the panel by the District Magistrate to the Government, his name was not considered for inclusion in the panel of five advocates. Thereafter the Government through its letter dated 20.7.2001 reminded the District Magistrate, Mehboobnagar, to send his report called for on 4.6.2001 with regard to the empanelled advocates. Thereafter, the District Magistrate on 1.8.2001 submitted a report of antecedents of the empanelled advocates. Subsequent to the sending of bio-data of five empanelled advocates on 15.5.2001, by DO letter dated 31.5.2001, the District Magistrate, Meboobnagar, recommended the name of the name of the 3rd respondent, in continuation of the panel recommended earlier, for consideration of the Government for appointment as Public Prosecutor, in view of the services rendered by him as such. In the meanwhile, there were several representations from various organisations to consider the advocates belonging to their community for adequate representation in the cadre of Law Officers in Mehboobnagar District.
7. One of the points for consideration before the Government is the appointment of advocate belonging to Scheduled Castes and Scheduled Tribes in the cadre of Law Officers. Out of the six Public Prosecutors working in Zone VI consisting of Mehboobnagar, Nalgonda, Medak, Ranga Reddy, Nizamabad and Hyderabad, four Public Prosecutors belong to OC category including one woman and two Public Prosecutor belong to BC category.
8. The District Collector, who is 2nd respondent filed counter-affidavit on behalf of the Government, admitted the fact of preparation of the panel recommending to the Government five names of advocates, through his proceedings dated 15.5.2001 and the name of the 3rd respondent did not figure in that panel. But asserted that having regard to the services rendered by the 3rd respondent - Sr. G. Pullaiah, additional proposal in continuation of the proposal dated 15.5.2001 was sent to the Secretary, Legislative Affairs and Justice for continuing the 3rd respondent for the third time, under Rule 8 of the A.P. Law Officers (Appointment, Conditions of Service) Rules, 2000 communicated vide G.O. Ms. No. 187 Law (L) Department, dated 6.12.2000.
9. The above statement shows that the District Magistrate is not aware of the repeal of the said rules and issuance of G.O. Ms. No. 187 in the year 2000. I do not know how the proposal was submitted under the repealed rules. Therefore, hetried to sustain the order passed by the Government.
10. To the same effect, the 3rd respondent also filed counter-affidavit.
11. The Government has tried through its counter to defend its stand and sustain the decision of appointing the 3rd respondent as Public Prosecutor for Sessions Court, Mehboobnagar.
12. The third respondent, also filed counter-affidavit stating that taking into consideration his performance and the meritorious certificates issued by the concerned authorities, appointed him for the third time as Public Prosecutor.
13. In the backdrop of these facts, Sri A. Sudershan Reddy, the learned Counsel for the petitioner, banking upon Section 24 of the Code of Criminal Procedure (for brevity the Code), which deals with the appointment of Public Prosecutor, contended that 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 proceedings on behalf of the Central Government or the State Government, as the case may be.
14. In the instant case, the issue involved is the appointment of Public Prosecutor for the Sessions Court, Mehboobnagar. Therefore, the relevant provision of law 24(3) and (4) of the Code, which read as under:
'........... (3) For every district, the StateGovernment 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 PublicProsecutor 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 Prosecutor or Additional Public Prosecutor for the district..'
15. Sub-section (3) empowers the State Government to appoint an advocate as Public Prosecutor and also one or more Additional Public Prosecutor for the district and such Public Prosecutor may also be appointed for another district. Sub-section (4) speak about the preparation of the panel, out of which appointment against the post of Public Prosecutor has to be made, and the Sessions Judge and the District Magistrate are required to consult and discuss the names of the persons fit to be included in the panel and to include such names in the panel. The expression panel of names of persons do not mean that some names are to be suggested by the Sessions Judge and some comments are to be made in respect of those names by the District Magistrate, without proper consultation and discussion over such names.
16. Sub-section (5) of Section 24 is most crucial for the purpose of this case. It contemplates that no person shall be appointed by the State Government as the Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under Sub-section (4).
17. Akin to the sacrosanct provisions of the Code, the State Government has promulgated abstract instructions for regulating the appointment and conditions of service of the Law Officer of the Government of Andhra Pradesh as Andhra Pradesh Law Officers (Appointment and Conditions of Service) Instructions, 2000. Sub-instruction (iv) of Instruction 2 definesLaw Officer as a Government Pleader or an Assistant Government Pleader or a Public Prosecutor or Additional Public Prosecutor or Special Public Prosecutor or a Special Counsel. Instruction 5 deals with the appointment of Law Officers in the District Court and City Courts subordinate to the High Court. Sub-Instruction (1) of Instruction 5 mandates that the appointment of Law Officers in all the Courts and Tribunals subordinate to the High Court shall be made on the basis of the recommendations of the District Collector concerned who shall ascertain the views of the concerned district and Sessions Judge before making the recommendations. Normally, the District Collector shall prepare a panel of advocates well in advance before expiry of the term of incumbent and send the same to the Government for consideration. Under Sub-Instruction (4) of Instruction, on receipt of the panel sent by the District Collector, the Government in Law Department shall consider the same and appoint one among the panel as Law Officer for a term prescribed under Instruction (8), or call for a fresh panel.
18. It is the contention of the learned Counsel for the petitioners that the District Collector, before expiry of the term of the incumbent - Public Prosecutor, after consulting the Sessions Judge, Mehboobnagar, recommended the names of five advocates, empanelled on 15.5.2001 for consideration by the Government and for appointment of one of them as Public Prosecutor for District Court, Mehboobnagar, therefore, in the absence of any authority either under the Instructions or under the Code, empowering the District Magistrate to recommend some other advocates and that too without consulting the Sessions Judge, the appointment of the 3rd respondent as Public Prosecutor is bad in law and is liable to be set aside. He further contended that neither the Instructions nor any provision of the Code empowers the District Magistrate torecommend the name of 3rd respondent, in continuation of the panel recommended earlier. He also contended that during the pendency of the submission of report with regard to the antecedents of the five empanelled advocates, the District Magistrate has recommended the name of 3rd respondent alone, without consulting the Sessions Judge and, therefore, the action of the District Magistrate in sending the name of the 3rd respondent, wording it as in continuation of the earlier panel is contrary to both the Instructions and the Code, more particularly in view of the fact as on the date of recommendation of the District Magistrate, the representation of the 3rd respondent was very much before him. Therefore, it is contended that the consideration of the name of third respondent for appointment as Public Prosecutor is illegal and violative of both the Instructions and the Code and is liable to be set aside.
19. On the other hand, Mr. M. Rama Rao, the learned Government Pleader for Home, submitted that when the panel submitted earlier was pending consideration, neither the Instructions nor the Code forbid the Collector from recommending the name of 3rd respondent in continuation of the panel dated 15.5.2001. He also contended that this Court held that the Instructions issued under G.O. Ms. No. 187 Law (L) Department dated 6.12.2000 are valid. It is also his contention that the Government is empowered to appoint the Law Officers on its behalf, who are having relatively meritorious and their performance is satisfactory like that of a private litigant, who has every right to chose his Counsel. As such the decision of the Government in appointing the 3rd respondent as Public Prosecutor is sustainable in law and cannot be reviewed under Article 226 of the Constitution.
20. Mr. C.B. Ram Mohan Ready, the learned Counsel for the 3rd respondent whileadopting the arguments of the learned Government Pleader has placed reliance on the decision of a Full Bench of this Court in B. Rajeshwar Reddy and Ors. v. K. Narasimhachari and Ors., : 2001(6)ALD679 (FB). Reliance is also sought to be placed by him on an unreported decision of a Division Bench of this Court in Writ Petition No. 22268 of 1998 dated 27.10.1998.
21. The facts leading to the decision in B. Rajeshwar Reddy's case are that consequent upon the Government Memo dated 30.9.2000, the District Magistrate, Hyderabad, sent a letter dated 30.10.2000 to the Metropolitan Sessions Judge, Hyderabad, requesting him to send panels alongwith bio-data particulars for appointment to the posts of Public Prosecutors and Additional Public Prosecutors and the Metropolitan Sessions Judge, Hyderabad, by letter dated 15.12.2000 requested the II Additional Metropolitan Sessions Judge-cum-Chief Metropolitan Magistrate to suggest panels. Thereafter, the Chief Metropolitan Magistrate put up a notice in the notice board calling for the applications from the advocates who are eligible to be so appointed. Thereafter a panel was prepared on scrutiny of the applications, including the appellants therein and others in the panel. Thereafter, a writ petition was filed by the unofficial respondents to declare the procedure adopted by the respondents consequent upon the Memo dated 30.9.2000 for appointment of Public Prosecutor and Additional Public Prosecutors, as illegal and void and consequently to direct the respondents to initiate fresh process for such appointments, within a period of three months.
22. The Full Bench in view of the above facts, on scrutiny of plethora of decisions, has held that the Judiciary in the matter of appointment of Law Officers ofthe State has no primacy. Appointment to the post of Public Prosecutor has to be made by the State. For such appointment, recommendations are required to be made by the District Collectors and only in the process of recommendation, the District Collector is required to consult the District and Sessions Judge. Such consultation has a limited role to play. The same, in a situation of this nature, would not mean concurrence. It is for the District Magistrate not to make recommendation even of the advocates whose names find place in the panel sent by the District and Sessions Judge. Even the recommendations made by the District Collector may not be accepted by the State.
23. As stated earlier, the learned Counsel for the 3rd respondent also relied on an unreported judgment of a Division Bench of this Court , wherein the advocate, not empanelled, was appointed as Assistant Government Pleader for the Subordinate Court and District Munsif Court, Ramachandrapuram, was held to be valid. Relying on the above rulings, the learned Counsel for the 3rd respondent submitted that the Courts in the matter of appointment of Law Officers of the State have no primacy and, therefore, interference of this Court in these writ petitions is unwarranted and the writ petitions are liable to be dismissed.
24. In an analogous situation, the Apex Court had an occasion to consider Section 24 of the Code in a decision Kumari Shrilekha Vidyarthi etc., etc. v. State of U.P. and Ors., : AIR1991SC537 . This case arose whereby one stroke, seemingly resorting to the Spoils Systems alien to our constitutional scheme, the Government of Uttar Pradesh has terminated by a general order, the appointments of all Government Counsel (Civil, Criminal and Revenue) in all the Districts of the State of Uttar Pradesh with effect from 28.2.1990 and directed preparation of fresh panels to make appointments in place of existing incumbents. This was done by a circular G.O. No. D-284-Seven-Law-Ministry dated 6.2.1990, terminating all the existing appointments with effect from 28.2.1990 irrespective of the fact whether the term of the incumbent had expired or was subsisting. When the challenge was rejected by the Allahabad High Court, it was made before the Apex Court. The Apex Court, having regard to the facts and circumstances of the case, has held that it cannot be said that the appointment of District Government Counsel by the State Government is only 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 the sweet will of the Government excluding judicial review. The presence of public element attached to the 'office' or 'post' of District Government Counsel is sufficient to attract Article 14 of the Constitution and bring the question of validity of the impugned circular terminating appointment of all District Government Counsel in the State of Uttar Pradesh within the scope of judicial review. The Apex Court further held that para 7.06 of Legal Rememberancer has to be read not in isolation, but in the context in which it appears and alongwith the connected provisions. 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.
25. While considering the above said para 7.06, it was held that non-assigning of the reasons or the non-communication thereof may be based on public policy, but termination of an appointment without theexistence 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. In the case of Public Prosecutors, the 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 mat their engagement is purely professional between a client and his lawyer with no public element attaching to it.
26. In view of these observations made by the Supreme Court, I am unable to accede to the contention of the learned Counsel for the third respondent, basing on the Full Bench judgment of this Court, mat the role of High Court in scrutiny of the appointment of the third respondent is very limited.
27. The Apex Court in yet another decision Harpal Singh Chauhan and Ors. v. State of Uttar Pradesh, : 1993CriLJ3140 , considering Section 24 of the Code has held that when Sub-sections (4) and (5) of Section 24 of the Code speak about preparation of panel out of which appointment against the posts of Public Prosecutor have to be made, then the Sessions Judge and the District Magistrate are required to consult and discuss the names of the persons fit to be included in the panel and to include such names in thepanel. The expression 'panel of names of persons' do not mean that some names are to be suggested by the Sessions Judge and some comments are to be made in respect of those names by the District Magistrate, without proper consultation and discussion over such names.
28. Originally, the appointment and conditions of Service of Law Officers were governed by the Rules namely A.P. Law Officers (Recruitment, Conditions of Service and Remuneration) Rules, 1967. Subsequently, these Rules were repealed. In supersession of several Government Orders and the above said Rules, 1967, the Government of Andhra Pradesh made the A.P. Law Officers (Appointment and Conditions of Service Rules, 1999 by way of G.O. Ms. No. 118 Law (L) Department dated 28.6.1999, which were also superceded by the present Instructions, known as A.P. Law Officers Appointment and Conditions of Service) Instructions, 2000.
29. Evidently, there is nothing either in the Instruction or the Code which suggests and authorises the District Magistrate to recommend the name of the third respondent alone, alleged to be in continuation of the panel dated 15.5.2001. That apart, panel names suggest more than one name. But the District Magistrate, has recommended the name of 3rd respondent alone, in continuation of the earlier panel, which is not authorised by law. More so, as can be seen from the records, there is no effective consultation or discussion about the name of the third respondent between the District Magistrate and the Sessions Judge, Mehboobnagar. As can be seen from Sub-instruction (4) of Instruction 5, on receipt of the panel sent by the District Magistrate, the Government in Law Department shall consider the name and appoint one among the panel as Law Officer for the term prescribed under Instruction 8 or call for afresh panel. Therefore, if the Government was not satisfied with the names of the advocates empanelled by the District Magistrate, as contemplated under the instructions and the Code, then the Government should have rejected the same and called for a fresh panel, instead of considering the case of 3rd respondent, which was recommended separately, wording it as continuation of the panel, more so at the request of the 3rd respondent and that too when his representation dated 19.2.2001 was pending before the District Magistrate when he forwarded the panel of five advocates on 15.5.2001. The District Collector, on his own accord exclusively recommended the name of the 3rd respondent, based on his representation. Such an action of the District Magistrate is in utter violation of instructions and the provisions of the Code.
30. I am unable to the accede to the contention of the learned Government Pleader and the learned Counsel for the 3rd respondent that the instructions have no statutory force and, therefore, they cannot be interfered for the reason that the appointment is made under Section 24 of the Code. Evidently, to supplement the procedure contemplated under Section 24 of the Code, administrative instructions were issued with regard to appointment of the Law Officers. Thus the instructions derive their origin to Section 24 of the Code and certainly have statutory force and their violation by the authorities will vitiate the proceedings. That apart, the Apex Court in the above decisions has held that for the post of Public Prosecutor, or Additional Public Prosecutor, public element flows from statutory provision in the Code and thus, a public element is involved. Therefore, it cannot be held that in the appointment of the Public Prosecutor in the Sessions Courts like the present post, the judicial scrutiny is very limited. In the present writ petition, this Court is not scrutinising the appointmentof 3rd respondent as Public Prosecutor, but it is called upon for judicial scrutiny of the process of decision making of the Government.
31. The Government while making the appointments of Law Officers, shall, therefore, strictly adhere to the Instructions and the sacrosanct provisions of the Code. The Apex Code has specifically held that when Sub-sections (4) and (5) of Section 24 speak about preparation of panel for the post of Public Prosecutor or Additional Public Prosecutor, then the Sessions Judge and the District Magistrate are required to consult and discuss the names of the persons fit to be included in the panel and to include such names in the panel. That denotes effective discussion and consultation, but it does not mean that some names are to be suggested by the Sessions Judge and some comments to be made in respect of those names by the District Magistrate, muchless the Government can consider and appoint a person, whose name was recommended separately by the District Magistrate alone without consultation of the Sessions Judge, for the third time.
32. It is not out of place to mention that as on the date of considering the name of the 3rd respondent for appointment as Public Prosecutor for the third time, the Government was thinking of not to appoint those Law Officers, who have completed two terms in the office, for the third time, on the basis of the Report of the Cabinet Sub-Committee dated 19.4.1999. Accordingly, they issued Memo No. 3709/L1/ 2002 dated 23.5.2002. Pending consideration of such a report by the Government, the case of the 3rd respondent should not have been considered and appointed as Public Prosecutor for the third time, for the Sessions Court of Mehboobnagar in the interest of justice.
33. From the above discussion and the ratio that emerges from the decisions of theApex Court, firstly I hold that the post of Law Officer in the Government of Andhra Pradesh is a public post and, therefore, rule of reservation is applicable. Further it is amenable to judicial scrutiny and attracts Article 14 of the Constitution. Secondly, I bold that as per Section 24 of the Code read with Instruction 5(4) of the Instructions, before making recommendations by the District Magistrate in the course of preparation of panel for appointment of Public Prosecutor or the Additional Public Prosecutor, the Sessions Judge and the District Magistrate are required to consult and discuss the names of the persons fit to be included in the panel, that the expression 'panel' means names of persons and not one person. Thus, I hold that the statutory mandate was not followed by the District Magistrate, Mehboobnagar, in its true spirit. As can be gathered from the records, there is no real and effective consultation and discussion by the District Magistrate and the Sessions Judge, while recommending the name of 3rd respondent. Thus the recommendation of the name of the 3rd respondent is contrary to Section 24 of the Code and Instruction 5(4) of the Instructions. Thirdly, I hold that when once the panel is recommended to the Government for its consideration as obligated under the Instructions 4 and 5 and if the Government is not satisfied with the panel, it should reject the panel and called for a fresh panel as contemplated under instructions. Therefore, the question of supplementing the name of 3rd respondent in the earlier panel wording it as continuation of the panel, is contrary to the instructions and the provisions of the Code. Thus the recommendation of the District Magistrate in respect of the 3rd respondent for inclusion in the panel for appointment as Public Prosecutor cannot be treated to be in continuation of panel dated 15.5.2001. The phrase continuation of panel is not found either in Section 24 of the Code or in Instructions, 2000.
34. For all these reasons I have no hesitation in holding that the District Magistrate, Mehboobnagar and the Government have given a go-bye to the procedure contemplated under Section 24 of the Code and the Instructions in appointing the 3rd respondent as Public Prosecutor for Sessions Court, Mehboobnagar. Therefore, the above conclusions arrived at by this Court cannot be said to be the substitution of the opinion of this Court in place of the decision taken by the Government in appointing the 3rd respondent as Public Prosecutor, but the process of decision making of the Government in appointing the 3rd respondent as Public Prosecutor for the Court of Sessions Judge, Mehboobnagar, is held to be illegal and bad in law and consequently the impugned G.O. is liable to be set aside, as per Section 24 of the Code and Instructions 5 and 8 of the Instructions, 2000 and is accordingly set aside. Consequently, the impugned GO is set aside.
35. As can be seen from the records, produced by the learned Government Pleader, as directed by this Court for its perusal, out of the six Public Prosecutors working in Zone VI consisting of Mehboobnagar, Nalgonda, Medak, Ranga Reddy, Nizamabad and Hyderabad, four Public Prosecutors belong to OC category including one woman and two Public Prosecutors belong to BC category and no advocate belonging to Scheduled Caste or Scheduled Tribe is appointed as Public Prosecutor. Therefore, while filling up the vacancy, I deem it appropriate to direct the respondents to consider an advocate belonging to Scheduled Castes or Scheduled Tribe to appoint as a Public Prosecutor, to have adequate representation of the Scheduled Castes and Scheduled Tribes in Zone VI of the State of Andhra Pradesh. The above exercise should be completed within a period of three months from the date of receipt of a copy of this order.
36. In the result, both the writ petitions are accordingly allowed. No order as to costs.