RAJENDRA SHANKAR TRIPATHI Vs. STATE OF U P

JUDGEMENT

(1.) IN the month of Aug. 1977 applications were invited by the District Magistrate, Unnao, for appointment of Public Prosecutor for his District. The petitioner as also opposite party No. 3 along with other persons applied for the same. Opposite party No. 3 was ultimately appointed Public Prosecutor, Unnao on 30th Dec. , 1977. He took over the charge of the office on 31st Dec, 1977.

(2.) THE petitioner has moved this petition under Article 226 for a writ in the nature of quo warranto requiring opposite party No. 3 to show his title to the post of Public Prosecutor.

(3.) THE case of the petitioner is that the opposite party No. 3 was not eligible for being appointed as Public Prosecutor inasmuch as he had not been in practice as an Advocate for 7 years or more on the date of his appointment. It was not in dispute that the opposite party No. 3 was enrolled as pleader on 10th Sept. , 1945. Thereafter he was enrolled as Advocate on 27th Oct. , 1977. The contention of the petitioner, therefore, was that the opposite party No. 3 had hardly put in two months practice as an Advocate when he was appointed Public Prosecutor of the District of Unnao. The petition has been resisted by the opposite parties. Sri Roop Krishna Topa, an Upper Division Assistant, Nyaya (Vidhi Mantrana) Anubhag, U. P. Civil Secretariat, Lucknow, has filed a counter-affidavit on behalf of opposite party No. 1. Similarly opposite party No. 3 has also filed his affidavit. In the counter-affidavit filed on behalf of opposite party No. 1 it has been stated that since opposite party No. 3 was a Pleader of 31 years standing, he was fully qualified for appointment as District Government Counsel (Criminal), Unnao. Further, it has been stated that the opposite party No. 3 was an Advocate enrolled by the U. P. Bar Council when he was appointed as District Government Counsel (Criminal), Unnao, Hence he was eligible for being appointed to that office and the provisions of Section 24 (5) of the Cr. P. C. were not in any manner violated. The case of the opposite party No. 3, as set out in his counter-affidavit, is that he has been a legal practitioner of about 33 years standing in Unnao, that he was enrolled as Advocate on 27th Oct. , 1977, after having put in 33 years of practice at the Bar, that he was appointed District Government Counsel (Criminal) in terms of Chap. XXI of the Legal Remembrancer's Manual and had taken over charge in pursuance of the communication received from the District Magistrate's office dated Dec. 29, 1977. In support of his contention the opposite party No. 3 has placed reliance on paras. 21. 01, 21. 04, 21. 05 and 21. 06 of Chap. XXI of the Legal Remembrancer's Manual. In the alternative, it has been pleaded that the provisions of Section 24 (5) are discriminatory and are hit by Articles 14 and 16 of the Constitution.