| SooperKanoon Citation | sooperkanoon.com/446387 |
| Subject | Criminal;Service |
| Court | Andhra Pradesh High Court |
| Decided On | Oct-27-2003 |
| Case Number | Writ Petitioner No. 14982 of 2003 |
| Judge | V.V.S. Rao, J. |
| Reported in | 2004(1)ALD(Cri)232; 2004(1)ALT465 |
| Acts | Code of Criminal Procedure (CrPC) , 1973 - Sections 9(8) and 24(8) |
| Appellant | A.S.S.R. Krishna Rao |
| Respondent | Secretary to Govt. of A.P., Legislative Affairs and Justice and ors. |
| Appellant Advocate | D. Goverdhana Chary, Adv. |
| Respondent Advocate | Govt. Pleader for Home |
| Disposition | Petition dismissed |
V.V.S. Rao, J.
1. The petitioner is an advocate statedly practising in criminal courts. He was initially appointed as Assistant public prosecutor Grade II in the year 1958 and promoted to the post of Assistant Public Prosecutor Grade I. In both these posts he worked for about a quarter century. He demitted the office of Assistant public Prosecutor and took up private practice. While so he was also appointed as Standing Counsel-cum-Special Public Prosecutor for conducting prosecutions of important cases of Criminal Investigation Department (C.I.C.D) in Circar district. He claims to have conducted several trials as Special Public Prosecutor, besides assisting various crime police stations. Subsequently also, he was appointed Special public Prosecutor for Protection of Civil Rights (PCR) Cell, the latest appointment being vide G.O. Rt. No. 191 Law (LA&J; courts.A-2) Department, dated 15-2-2001 for a period of two years,- and the said period expired on 5-3-2003.
2. After expiry of the terms, the petitioner submitted a representation on 13-3-2003 to the government requesting to appoint him as Special Public Prosecutor. He has also sent another representation on 11 -7-2003 in vain. Therefore he filed this writ petition seeking declaration that the action of the government in not appointing the petitioner as Standing Counsel-cum-Special Public Prosecutor for PCR Cell, C.I.D. as illegal and arbitrary. He also seeks a consequential direction to the respondents to consider the candidature of the petitioner to appoint him as Standing Counsel-cum-Special Public Prosecutor, PCR Cell, CID.
3. The Additional Director General of Police, C.B.C.I.D. Has filed a counter affidavit opposing the writ petition. It is stated that the term of the petitioner as Standing Counsel-cum-Special Public Prosecutor expired on 4-3-2003. The third respondent, however, did not recommend his case for the said office as the petitioner was frequently absenting and was found not fit. The name of the T.Prabhakar Rao was recommended for the post and accordingly the Government vide G.O.Rt.No. 1265 Law (LA&J; Courts. A-2) Department, dated 21-7-2003 appointed Sri T. Prabhakar Rao as Standing counsel-cum-Special Public Prosecutor for PCR Cell, CID. An averment is made by the third respondent to the effect that the post of Standing Counsel-cum-Special Public Prosecutor is different from Special Public Prosecutors in the district. The Standing Counsel-cum-Special Public Prosecutor assists the 3rd respondent on legal matters with reference to the cases under investigation. While sending the name of a person for being appointed as Standing Counsel-cum-Special Public Prosecutor, there is no necessity to prepare a panel and send it to the Government. Even in yester years when the petitioner was appointed as Special Public Prosecutor no panel was sent to the Government and for appointing Special Public Prosecutor the law does not require preparation of a panel. The case of the petitioner was considered for appointment for another term as Standing Counsel-cum-Special Public Prosecutor for PCR cell, CID, but he was not selected.
4. The learned counsel for the petition Sri M. Srinivas Reddy submits that by reason of the counter-affidavit to the effect that the petitioner is not found fit, a stigma is cast on petitioner and therefore a notice ought to have been issued to the petitioner. I am afraid, I cannot agree with the same. By reason of a catena of decision of the Supreme Court as well as this Court it is now well settled that the Government Pleaders, Special Public Prosecutors, Public Prosecutors etc. do not hold public posts. No person has any right to compel the Government to appoint him or her as Standing Counsel-cum-Special Public Prosecutor for PCR Cell, CID. A reference may be made briefly to some of the authorities, which support this view.
5. In Shrilekha Vidyarthi v. State of U.P., : AIR1991SC537 the Supreme Court while dealing with the question whether the post of District Government Counsel can be equated with the post in Government held:
'...............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 necessary 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. 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 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.'
6. In Harpal Singh Chauhan v. State of U.P., : 1993CriLJ3140 the question before the Supreme Court was whether a District Government Counsel can claim, as a matter of right, that his terms should be extended. Dealing with the question, the Supreme Court observed:
'although power has been vested in a particular authority, in subjective term, still judicial review is permissible. Thus, the Assistant District Government Counsel (Criminal) cannot claim, as a matter of right that their terms should have been extended or that they should be appointed against the existing vacancies, but, certainly, they can make a grievance, that either they have not received the fair treatment by the appointing authority or that the procedure prescribed in the Code and in the Manual have not been followed. While exercising the power of judicial review even in respect of appointment of members of the legal profession as District Government Counsel, the Court can examine whether was any infirmity in the 'decision making process'. Of course, while doing so, the Court cannot substitute its own judgment over the final decision taken in respect of selection persons for those posts.'
7. In State of U.P. v. U.P. State Law Officers Association, : [1994]1SCR348 the Supreme Court inter alia considered the question whether there is any element of public interest in the appointment of Public Prosecutors and whether the State is bound to consult the Advocate General, or Chief Justice while making appointments. It was held:............... The State Government has a discretion. It may or may no ascertain the view of any of them while making the said appointments. Even where it chooses to consult them, their views are not binding on it. The appointments may therefore, be made on consideration other than merit and there exists no provision to prevent such appointments. The method of appointment is indeed not calculated to ensure that the meritorious alone will always be appointed or that the appointment made will not be on considerations other than merit. In the absence of guidelines, the appointments may be made purely or personal or political considerations, and be arbitrary. This being so those who come to be appointed by such arbitrary procedure, can hardly complain if the termination of their appointment is equally arbitrary. Such appointments are made, accepted and understood by both sides to be purely professional engagements till they last. The fact that they are made by public bodies cannot vest them with additional sanctity. Every appointment made to public office, howsoever made, is not necessary vested with public sanctity. There is. therefore, no public interest involved in saving all appointments irrespective of their mode. From the inception some engagements and contracts may be the product of the operation of the spoils system. There need be no legal anxiety to save them. It was more so when in the instant case, such law officers had no right to hold the office on the date of their removal as their period of contract was over.
8. In State of U.P. v. U.P. Govt. Counsel (Crl.) Welfare Association, , : AIR1995SC575 the Supreme Court observed:......................The Government is entitled to regulate its work by prescribing the conditions subject to which the work of the Government could be entrusted to and be discharged by the counsel. It is one of trust and confidence. So long as the trust and confidence remain and maintained by the counsel, the Government would engage the counsel. The Government have the liberty to relieve a counsel for the reason that they do not have confidence in the counsel.
9. In State of U.P. v. Ramesh Chandra Sharma, , : AIR1996SC864 the Supreme Court followed the earlier judgment is Srilekha Vidyarthi v. State of U.P. (1 supra) and observed as under.
'it cannot be disputed after the decision in Shrilekha Vidyarthi v. State of U.P. (1 supra) and those following it, that the State action of refusing renewal can be quashed if it is arbitrary. The only question, therefore, is whether is so as found by the High Court. The High Court has reached the conclusion that the only reasons disclosed by the State Government for refusing to consider the case of these respondent for renewal of the their terms were non-existent or extraneous. In substance, the action was supported by the State Government on the ground that there was no recommendation made by the District authorities for making the renewal s required by para 7.08. This is the only ground on which the action was supported by the State Government. However, the High Court found that the report of the District Officer was favourable to these respondents and the District Judge had really recommended renewal of their term. Admittedly, the only ground on which the State Government sought to support its action is found to be non-existent in the record. This leads to the inescapable conclusion that the action of refusing renewal to respondent Nos. 1, 2 and 3 by order dated 1-10-1992 was arbitrary and on non-existent ground. This view taken by the High Court cannot, therefore, be faulted.'
10. The petitioner also does not dispute the above legal position. When the competent authority has considered the name of the petitioner also at the time of appointment of Sri T. Prabhakar Rao and found T. Prabhakar Rao suitable, in the absence of any right in the petitioner, no writ of mandamus can be issued to appoint the petitioner alone as Standing Counsel-cum-Special Public Prosecutor. Further the submission that a panel ought to have been sent is misconceived. When an appointment is made for the office of Public Prosecutor, Sub-section (4) of Section 24 of the Code of Criminal Procedure, 1973 requires a District Magistrate to prepare a panel in consultation with the Sessions Judge. Further when an appointment of Standing Counsel-cum-Special Public Prosecutor is made under Sub-section (8) of Section 9 (Sic. 24) the law does not require the District Magistrate to send the panel of advocate to be considered by the Government. Therefore in not recommending the name of the petitioner or not sending the name of the petitioner the respondents have not committed any illegality. The respondents have acted within their powers and it is always permissible for the Government to appoint its own lawyers depending on the merit and suitability of the candidates as well as the exigencies that may arise due to various types of cases.
11. In the result, for the above reasons the writ petition is dismissed. There shall be no order as to costs.