SUSHIL SHARMA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Two learned Judges of this Court who heard this petition, having disagreed on a vital question of constitutional import, this matter has come up before me to resolve the conflict, on an order passed by the Hon'ble the Chief Justice in that regard. The Presiding Judge (K. M. Agrawal, J.) has dismissed, by his order dated 26-3-1991, the writ petition holding that by efflux of time, the petition had become infructuous and further that in the changed circumstances, alternative remedy, of civil suit was available. His Companion Judge (K. M. Pandey, J.), on the other hand, by his order dated 27-3-1991, held that the preliminary objection to the maintainability of the petition had no force and the petition should be heard on merits. Accordingly, the learned Judges recorded jointly the order that they had reached different conclusions in their separate orders on the preliminary objection about maintainability of the petition and as such the controversy needed to be resolved by a Third Judge or by Larger Bench, as may be ordered by the Hon'ble the Chief Justice.

(2.) Deceptively simple though the controversy may appear, during the course of hearing the matter, I found it impregnated with wider ramification of crucial import. Before I proceed to gapple with the constitutional issue, few facts giving rise to petitioner's grievance and also some facts relevant to the petitioner's life in this Court may be set out first.

(3.) On 16-5-1990, this writ petition was filed for issuance of a suitable writ/order and/or direction under Article 226 of the Constitution to respondents prohibiting them from terminating the services of the petitioner who was, on that date, functioning as a Government Pleader and Public Prosecutor at Gwalior. He relied on order, Annexure P/6, dated 23-2-1988 to contend that his appointment was for a period of three years from 26-12-1987 and that had been made under Rules 18 and 19 of Law Department Manual. His tenure was jeopardised is a result of orders, Annexures P/7 and P/8, issued by the State Government on 15-3-1990 and 22-3-1990 by deciding to constitute panels for fresh appointments of Public Prosecutors and Additional Public Prosecutors in the State. Respondents impleaded, among others, are the Chief Secretary and the Secretary, Law Department of the Government of Madhya Pradesh, as also the District Magistrate and Collector, Gwalior. On 3-8-1990, the Court passed an order on the prayer made by the petitioner for interim relief. Shri N. C. Jain, Advocate, appeared in Court on that date and submitted that State Government had passed an order dated 26-6-1990 and he had been appointed as the Government Pleader and was asked to take over charge from the petitioner. The court heard him and also heard counsel for the petitioner and the Government Advocate, for the respondents, in passing the order that the petitioner shall not discharge any function of Government Pleader or Public Prosecutor, but he shall enjoy the status of "Government Pleader" under the order of his appointment until further orders. It was further directed that the State Government shall not give effect to its order dated 26-6-1990 until further orders and that in the meantime, the District Magistrate shall make ad hoc arrangement for pursuing the pending cases and also all litigations in which the State is involved, past, present and future, through such counsel as may enjoy the confidence of the District Magistrate. On behalf of the respondents, Government Advocate had submitted to the Court that one month's notice was served on the petitioner asking him to vacate office and the notice period was expiring on 5-8-1990.