A MOHAMBARAM Vs. M A JAYAVELU

JUDGEMENT

(1.) I have had the advantage of perusing the judgment of my learned brother, which discusses all relevant aspects of these Writ Appeals, in considerable detail. I am in entire agreement with his conclusions, and, if I am appending a brief, separate judgment, it is only because of the importance of the vital aspect.

(2.) THE facts on the record themselves are incontrovertibly established, and, indeed, there are no two views permissible on the facts. Briefly stated, in making the appointment of the first respondent to the office of the Public Prosecutor, north Arcot Sessions Division, the State was not appointing a person who had been nominated bv the Collector, or was any nominee of the Collector, under Rule 45 of the Criminal Rules of Practice. The view to the contrary, taken by the learned judge (Kailasam, J.) is clearly based on a misconception of the actual facts of the record, as my learned brother has so plainly shown.

(3.) ON this aspect, which is the factual aspect, it is sufficient to be very brief. As the rule makes it mandatory for the Collector to consult the Sessions Judge, what actually happened was that the Collector referred the names of 17 Advocates, furnished by the Bar Association, to the District and Sessions Judge, to enable him to propose names, separately, for the office of the Public Prosecutor and the Office of Government Pleader, as the Collector had justification to assume that separate incumbents would have to be appointed for the two offices. The District and sessions Judge furnished two distinct panels of names, and the appointee-respondent was included in the panel of names for the office of the Government pleader, which does not now concern us at all. It is not in dispute that the name of the appellant was included by District and Sessions Judge in the panel of names for the office of Public Prosecutor. The Collector forwarded his nomination to government in compliance with Rule 45, making the specific recommendation or nomination, whichever it might be termed, that the appellant, who was then additional Public Prosecutor, be appointed Public Prosecutor, North Arcot Sessions court. The appointee-respondent was not nominated by the Collector for this office, in any sense. If the nomination of the Collector had been accepted by government, the appointment of the appellant to that office would necessarily have created a vacancy in the office of Additional Public Prosecutor, a distinct office, the filling up of which was not then imminent. The Collector expressed his opinion that that office could be given to the respondent-appointee, so that he could pick up work, and equip himself for greater responsibilities. As mv learned brother has shown, the actual appointing authority under Section 492 of the Code of Criminal Procedure is the State Government, and Rule 45 of the Criminal Rules of Practice is only the mode by which this power is to be exercised. The Collector is not the appointing authority, and, hence, the government could well require the Collector not merely to nominate one person, but to submit a panel of nominees. Further, where the Government are unable, for any proper reason, to accept a single nomination of the Collector, if it happened to be a single nomination as in this case, the Government would further correspond with the Collector, with a view to obtaining a nomination, which might seem to be acceptable, in public interest. If the rule were to be taken as implying that the collector need make only one nomination, even if Government were Unable to accept that nomination this would imply that the virtual crux of the power would be with the Collector, and not the State Government, which is not the intendment of Section 492 of the Code of Criminal Procedure.