M SURYANARAYANA Vs. K RAMAMOHAN RAO

JUDGEMENT

(1.) This appeal arises out of the Judgment of the learned Single Judge allowing Writ Petition No.11697 of 1991 filed by the 1st respondent herein challenging the appointment of the appellant as Public Prosecutor, in G.O.Ms. No. 190, Law Department, dated 18-6-1991.

(2.) The facts in brief are as follows:- A vacancy arose in the Office of the Public Prosecutor on the expiry of the term of Sri M.S.R. Gopal Rao, in West Godavari district. The District Collector sent up a panel of three names to the Government on 1-6-1989 after getting the same from the District Judge. The 1st respondent was working as Additional Public Prosecutor in the Court of the Additional District judge, Eluru. The Government on a consideration of the panel felt that two candidates in the panel have already worked as Law Officers for two terms and there were no exceptional circumstances to appoint them for the third time and therefore called for a fresh panel, by their Memo dated 13-7-1989. On 28-10-1989, the District Collector sent a panel of three names, in which, the names of the appellant as well as the 1st respondent were included. The District Judge placed the name of the 1st respondent as No.l and the name of the appellant as No.2, which was changed by the District Collector, in view of the instructions of the Government in Memo dated 13-7-1991. Since the 1st respondent had worked as Additional Public Prosecutor for two terms, the District Collector assigned him the last place in the panel. The appellant was attending to both Civil and Criminal work, whereas the 1st respondent was dealing with mostly criminal matters. Government appointed the 1st respondent as the Public Prosecutor, taking the view that it would be beneficial to utilise the experience of the 1st respondent, by appointing him as the Principal Public Prosecutor. The rule against the appointment for more than two terms was considered to be not applicable to the case of the 1st respondent, who worked as Additional Public Prosecutor for two terms, but not as Public Prosecutor. By G.O. Rt. No.189, dated 18-4-1990, the 1st respondent was appointed as Special Public Prosecutor only to conduct prosecution in the Court of the District and Sessions judge, Eluru, until further orders. The appointment was made under sub-section (8) of Section 24 of the Criminal Procedure Code. The reason for the appointment of the 1st respondent as Special Public Prosecutor was that by judgment in W.P. No.6836 of 1989 this Court held that only Assistant Public Prosecutors were eligible to be appointed as Public Prosecutors. Therefore, the 1st respondent was appointed as Special Public Prosecutor. The appellant was appointed as a Government Pleader for a period of three years by G.O.Ms. No.58, dated 19-3-1990. Thus the name of the appellant was found both in the panel of Public Prosecutors as well as Government Pleaders.

(3.) A Division Bench of this Court in W.P. No.14399 of 1990 held that the Government could validly appoint Advocates as regular Public Prosecutors Addl. Public Prosecutors in the District Court and Suboridnate Courts. Thereafter, the question of appointment of regular Public Prosecutor to the Court of the District and Sessions Judge was taken up afresh by the Government. The same panel of names sent up by the District Collector on 28-10-1989 was considered by the Government. On a consideration of the names included in the panel, Government issued G.O.Ms. No.190, Law Dept, dated 18-6-1991, appointing the appellant as the Public Prosecutor, for the Court of the District and Sessions Judge, Eluru, under Section 24 of the Criminal Procedure Code, for a period of three years from the date of his assuming charge of office. Aggrieved by the same, 1st respondent filed Writ Petition, challenging the validity of the impugned G.O.Ms. No. 190,dt.l8-6-1991. Pending disposal of the Writ Petition this Court passed an interim order to the effect that the existing arrangement shall go on viz., that the 1st respondent shall continue to function as Public Prosecutor and the appellant shall continue to functipn as Government Pleader.