Judgment:
ORDER
1. There is a representation for all the respondents by the Government Pleader for Home.
2. This writ appeal is directed against the order of the learned single Judge in Writ Petition No. 1258 of 1994. The petitioner in the writ petition is the appellant in this writ appeal. The respondents in the writ petition are the respondents in this writ appeal. The petitioner has got a grouse with reference to the extension accorded to the third respondent as Additional Public Prosecutor, Ongole, Prakasam District. The learned single Judge, who dealt with the writ petition, was requested to take note of the ratio of the apex Court in Harpal Singh Chauhan v. State of U.P., : 1993CriLJ3140 . But the learned single Judge, on a view that the extension is only by way of stop-gap arrangement, opined that the ratio of the apex Court in the above pronouncement could not be said to have been violated.
3. What happened in the present case is that the extension of the third respondent in the post of Additional Public Prosecutor was not in accordance with Section 24(4) and (5) of the Code of Criminal Procedure, 1973, hereinafter referred to as 'the Code'. Sub-sections (3), (4) and (5) of Section 24 of the Code are relevant for our purposes and they run as follows :
'24. Public Prosecutors :
(1) xx xx xx xx xx (2) xx xx xx xx xx (3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one of 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 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 Prosecutor or Additional Public Prosecutor for the district unless his name appears on the panel of names prepared by the District Magistrate under sub-section (4)'.
We will advert to the implication of these provisions, in the context of the facts of the present case, shortly.
4. In the case dealt with by the Apex Court in the pronouncement referred to above, the District and Sessions Judge strongly recommended extension for the appellants before the Apex Court saying that so far as their work and conduct were concerned, the same had been approved. But the District Magistrate simply said that 'on the enquiry at his level, 'reputation, professional work, behaviour and conduct of the appellants as Government counsel was not found in accordance with the public interest', and did not recommend the names of the appellants. The appellants therein had approached the High Court against the decision of the State Government refusing to extend their term and the High Court dismissed the writ application preferred by the appellants. As to how the process for any appointment, call it an extension or renewal, has necessarily to go through the procedure as contemplated under sub-sections (4) and (5) of Section 24 of the Code, could be gleaned from the following passage :
'A part from the mandate of sub-section (4) of Section 24 is that 'the District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons'. Sub-section (5) of Section 24 prescribes a statutory bar that no person shall be appointed by the State Government as the Public Prosecutor 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)'. When sub-section (4) and sub-section (5) of Section 24 of the Code, speak about preparation of a panel, out of which appointments against the post of Prosecutor or Additional 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 the panel. The expressions '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. The statutory mandate ought to have been complied with by the District Magistrate and the Sessions Judge in its true spirit. In the facts of the present case, no such panel appears to have been prepared by the District Magistrate in terms of sub-section (4) of Section 24. As Section 24 of the Code does not speak about extension or renewal of the term of the person so appointed, the same procedure as provided under sub-section (4) of Section 24 of the Code, has to be followed. In the present case the District Magistrate, instead of having an effective and real consultation with the District and Sessions Judge, simply made some vague and general comments against the appellants, which cannot be held to be the compliance of the requirement of sub-section (4) of Section 24'.
5. As we could see from the ratio settled by the Apex Court, there could not be any appointment unless the name of the appointee appears in the panel of names prepared by the District Magistrate under sub-section (4). This bar is one prescribed by sub-section (5). The Apex Court points out that as Section 24 of the Code does not speak about extension or renewal of the term of the person so appointed, the same procedure as provided under sub-section (4) of Section 24 of the Code has to be followed. The result is, whatever be the nomenclature, that can be assigned for continuing the appointee in the post be it extension or renewal the adherence to the procedure as per sub-section (4) of Section 24 of the Code is mandated. Sub-section (3) speaks that for every district the State Government shall appoint a Public Prosecutor and may also appoint one of more Additional Public Prosecutors for the district. The proviso thereto contemplates that the appointee for one district being appointee for another disrict. Sub-section (4) directs the District Magistrate in consultation with the Sessions Judge to prepare a panel of names of persons who are in his opinion fit to be appointed as Public Prosecutor or Additional Public Prosecutors for the district. Sub-section (5) mandates that no person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4). The entire gamut of appointment as Public prosecutor or Additional Public Prosecutor for the district has to fall within the ambit of these provisions. There is no escape from it. The provisions by themselves do not specifically contemplate the concept of extension or renewal of the term of an appointee. If the appointment had been for a particular tenure and the tenure had lapsed, then there could be again an appointment going through the very same procedure as per the provisions noted above. For convenience sake, only when the very same incumbent after the lapse of his previous tenure, gets at that appointment once again, it may be called extension or renewal. But that must happen only in accordance with the provisions of sub-sections (4) and (5) of Section 24 of the Code. If that does not happen, the appointment could not survive because it will be counter to the mandates of the said provisions. In the present case, admittedly for the continuance in the post of the third respondent, the said provisions were not complied with. Hence we are not able to subscribe our support to the theory adopted by the learned single Judge that in case of a stop-gap arrangements, the mandatory prescriptions could be forgotten. On this simple ground, we are obliged to interfere in this writ appeal. Accordingly, we allow this writ appeal; set aside the order of the learned single Judge in Writ Petition No. 1258 of 1994 and that writ petition stands allowed quashing the proceedings impugned therein. We make no order as to costs.
6. We make it clear that if the name of the 3rd respondent is already included in the panel as per the mandates of sub-sections (4) and (5) of Section 24 of the Code, that could have further processing and consideration in accordance with law. Respondents 1 and 2, until the process is accordance with law is completed and a proper incumbent comes into the post may direct any other Public Prosecutor duly appointed to be in additional charge of the post in question.
7. Appeal allowed.