1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B.CIVIL WRIT PETITION NO. 629/2008 Laxman Singh Bala Vs. State of Rajasthan and Others. Date of order : 22.05.2008 P R E S E N T HON'BLE MR.JUSTICE H.R.PANWAR Mr. Mukesh Rajpurohit for the petitioner. Mr. Shyam Ladrecha, Govt. Counsel for respondents No.1 to 3. Mr. Pradeep Shah for the respondent No.4. BY THE COURT By the instant writ petition under Article 226 of the Constitution of India, the petitioner seeks quashing of order Annex.7 dated 19.1.2008 and a direction to allow the petitioner to work as Additional Public Prosecutor in the Court of Additional District and Sessions Judge (Fast Track), Sirohi and the appointment of the respondent No.4 be declared null and void. The facts and circumstances giving rise to the instant writ petition are that the petitioner came to be engaged as Additional Public Prosecutor in the Court of Additional District and 2 Sessions Judge (Fast Track), Sirohi by order dated 4.9.2004 Annex.1 for a period upto 28.2.2005 on a fixed Retainership of Rs.4000/- per month and a sum of Rs. 2000/- as Clerical Allowance. However, the engagement of the respondent No.4 by the very order Annex.1 as Additional Public Prosecutor for the said Court was brought to an end. By order dated 8.11.2005 Annex.2, the initial period of engagement was extended from 28.2.2005 to 28.2.2006 i.e. for a period of one year. Thereafter, by order dated 27.11.2006 Annex.3, the engagement was further extended for a period of one year i.e. upto 28.2.2007. The period of engagement of the petitioner as Additional Public Prosecutor came to an end on 28.2.2007 as thereafter the respondents have not extended his engagement period. By order impugned dated 19.1.2008 Annex.7, the respondent No.4 came to be engaged as Additional Public Prosecutor in the Court of Additional District and Sessions Judge (Fast Track), Sirohi on a monthly consolidated Retainership of Rs. 4000/- and @ Rs. 2000/- per month clerical allowances and by the very order Annex.7, the engagement of the petitioner on the said post came to an end. Hence this petition. It is reported that the respondent No.4 on being engaged vide Annex.7 impugned has resumed the charge of Additional Public Prosecutor in the said Court and has been 3 functioning as such since his engagement by Annex.7. A reply to the writ petition has been filed by the respondent State stating that the petitioner cannot claim to continue as Additional Public Prosecutor beyond the term of his engagement and according to learned Govt. Counsel, the term of the engagement of the petitioner as Additional Public Prosecutor came to an end on 28.2.2007 and thereafter the said engagement has not been extended by the respondents and therefore, the petitioner cannot claim to be engaged as Retainer by the respondents. It is further submitted that no legal or statutory right has accrued in favour of the petitioner seeking to enforce, compelling the respondents to engage him as Additional Public Prosecutor. The respondents also placed on record Annex.R/2 dated 11.9.2007 recommendation by the District and Sessions Judge, Sirohi recommending the engagement of respondent No.4 as Additional Public Prosecutor stating therein that the respondent No.4 had experience of having worked as Additional Public Prosecutor for 3 to 4 years and fulfills the requisite qualifications and accordingly his engagement on the post of Additional Public Prosecutor was recommended. Similarly, the District Collector, Sirohi also made recommendation in favour of respondent No.4 vide Annex.R/1 for his engagement as Additional Public Prosecutor. 4 A reply to the writ petition has also been filed by respondent No.4 reiterating the stand taken by the respondent State and contending that the engagement of respondent No.4 as Additional Public Prosecutor is in conformity with the provisions of law and after following the procedure prescribed under Section 24 of the Cr.P.C. and on the date of engagement of respondent No.4, the petitioner was not engaged on the said post as his engagement came to an end on 28.2.2007, whereas the engagement of the respondent No.4 is by order Annex.7 dated 19.1.2008. I have heard learned counsel for the parties. Carefully gone through the pleadings of the parties and the documents annexed therewith. It is contended by learned counsel for the petitioner that the petitioner discharged the work as Additional Public Prosecutor satisfactorily and therefore, the respondents fell in error in not extending his initial engagement as Additional Public Prosecutor though the petitioner was initially engaged for a period upto 28.2.2005 and thereafter it was extended for further one year i.e. upto 28.2.2006 and not only one year but it was further extended upto 28.2.2007 and there had not been any complaint against the petitioner and vide Annex.5 the 5 performance of the petitioner has been communicated to the respondent by the District and Sessions Judge, Sirohi stating therein that the petitioner conducted as many as 68 cases out of which 52 cases resulted in acquittal, however, in 14 cases conviction has been recorded. Learned counsel for the petitioner submits that the respondents failed to invite the panel of the advocates for engagement as Additional Public Prosecutor as envisaged under Rajasthan Law and Legal Affairs Department Manual 1999. Learned counsel appearing for the respondents submitted that the District and Sessions Judge, Sirohi on the basis of the past experience of respondent No.4 recommended him to be engaged as Additional Public Prosecutor and on the basis of which the District Collector, Sirohi sent a recommendation to the respondent State and the State accordingly engaged the respondent No.4 as Additional Public Prosecutor by following the due procedure and therefore, there is no illegality in engagement of respondent No.4 as Additional Public Prosecutor and the petitioner has no legal right which can be enforced by invoking inherent jurisdiction under Article 226 of the Constitution of India. From the material available on record as noticed 6 above, it is clear that the petitioner's engagement though it was up to 28.2.2005 but it was initially extended for one year and thereafter again for one year. At any rate, last date of his engagement as extended is 28.2.2007 and thereafter, there had not been any extension. The petitioner was simply engaged on a retainership as noticed above and no vested right has accrued in favour of the petitioner to continue on the post for ever. Ultimately, it is the respondents conducting their cases to decide as to who could be a proper person to defend the cases of the respondent State, but the petitioner cannot force the respondents to accept him for conducting their cases. A similar controversy came to be considered by a three Judges Bench of Hon'ble Supreme Court in State of U.P. and Another Vs. Johri Mal (2004) 4 SCC, 714, wherein in para 22 of the Report, Hon'ble Supreme Court observed as under:- “The power of judicial review is now well defined in a series of decisions of this Court. It is trite that the court will have no jurisdiction to entertain a writ application in a matter governed by contract qua contract (assuming such professional engagement to be one), as therein public law element would not be involved.” In para 30 of the Report, the Apex Court held that it is well settled that while exercising the power of judicial review the court is more concerned with the decision-making process 7 than the merit of the decision itself. In doing so, it is often argued by the defender of an impugned decision that the court is not competent to exercise its power when there are serious disputed questions of facts; when the decision of the Tribunal or the decision of the fact-finding body or the arbitrator is given finality by the statute which governs a given situation or which, by nature of the activity the decision-maker's opinion on facts is final. But while examining and scrutinising the decision-making process it becomes inevitable to also appreciate the facts of a given case as otherwise the decision cannot be tested under the grounds of illegality, irrationality or procedural impropriety. While considering the scope of writ of or in the nature of mandamus, Hon'ble Supreme Court held that a writ of or in the nature of mandamus, it is trite, is ordinarily issued where the petitioner establishes a legal right in himself and a corresponding legal duty in the public authorities. The Hon'ble Supreme Court in para 37 of of the Report held that the Legal Remembrancer's Manual clearly states that appointment of a Public Prosecutor or a District Counsel would be professional in nature. It is beyond any cavil and rightly conceded at the Bar that the holder of the office of the Public Prosecutor does not hold a civil post. By holding a post of District Counsel or the Public Prosecutor, neither a status is conferred on the incumbent. It was further held by Hon'ble Supreme Court that so long as in appointing a 8 counsel the procedures laid down under the Code of Criminal Procedure are followed and a reasonable or fair procedure is adopted, the court will normally not interfere with the decision. The nature of the office held by a lawyer vis-a-vis the State being in the nature of professional engagements, the courts are normally chary to overturn any decision unless an exceptional case is made out. The question as to whether the State is satisfied with the performance of its counsel or not is primarily a matter between it and the counsel. The Code of Criminal Procedure does not speak of renewal or extension of tenure. The extension of tenure of Public Prosecutor or the District Counsel should not be compared with the right of renewal under a licence or permit granted under a statute. The incumbent has no legal enforceable right as such. The action of the State in not renewing the tenure can be subjected to judicial scrutiny inter alia on the ground that the same is arbitrary. The courts normally would not delve into the records with a view to ascertain as to what impelled the State not to renew the tenure of a Public Prosecutor or a District Counsel. In Om Kumar Vs. Union of India, 2001 (2) SCC, 386, Hon'ble Supreme Court held that where administrative action is challenged under Article 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question 9 is for the Constitutional Courts as primary reviewing courts to consider the correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator. For judging the arbitrariness of the order, the test of unreasonableness may be applied. The action of the State, thus, must be judged with extreme care and circumspection. It must be borne in mind that the rights of the Public Prosecutor or the District Counsel do not flow under a statute. In Union of India Vs. Naveen Jindal (2004) 2 SCC 510, Hon'ble Supreme Court held that it may be true that the Legal Remembrancer's Manual provides for renewal but it contains executive instructions which even do not meet the requirements of clause (3) of Article 166 of the Constitution. The Legal Remembrancer's Manual is not a law within the meaning of Article 13 of the Constitution of India. Keeping in view the fact that the engagement of the petitioner came to an end even after having been extended from time to time by 28.2.2007 and thereafter there had not been any further extension and the fact that the respondent No.4 as noticed above, has been engaged by the respondent State vide Annex.7 by following the procedure prescribed more particularly 10 Section 24 of the Code of Criminal Procedure after having received the recommendations of the District and Sessions Judge, Sirohi as also by the District Collector, Sirohi and there being no legally enforceable rights having accrued in favour of the petitioner and the fact that there being neither any violation nor being breach of either any Statutory or Constitutional provision and the fact that the controversy involved in the instant case stands squarely covered by three Judges Bench decision of Hon'ble Supreme Court in State of U.P. and Another Vs. Johri Mal (supra), in my view, the petitioner is not entitled for any relief prayed for. It cannot be said that the order impugned Annex.7 suffers from any error or illegality warranting interference in the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India. For the reasons stated above, I do not find any merit in the writ petition and it is dismissed accordingly. However, there shall be no order as to costs. (H.R.PANWAR), J. rp 11 S.B.CIVIL MISC. STAY PETITION NO. 1020/08 IN S.B.CIVIL WRIT PETITION NO. 629/2008 Laxman Singh Bala Vs. State of Rajasthan and Others. Date of order : 22.05.2008 P R E S E N T HON'BLE MR.JUSTICE H.R.PANWAR Mr. Mukesh Rajpurohit for the petitioner. Mr. Shyam Ladrecha, Govt. Counsel for respondents No.1 to 3. Mr. Pradeep Shah for the respondent No.4. Since the writ petition itself has been dismissed, the stay petition also stands dismissed. (H.R.PANWAR), J. rp