SUDHANSU SEKHAR MISRA Vs. STATE AND ORS.

JUDGEMENT

(1.) PETITIONER was the Public Prosecutor and Government Pleader for the district of Balangir. His term expired in December, 1973. The State Government appointed opposite party No. 4 in his place. In this petition under Article 226 of the Constitution the Petitioner has prayed for a writ of certiorari or mandamus and a writ of quo -warranto quashing the appointment of opposite party No. 4.

(2.) THE Petitioner contends that the appointment of Public Prosecutor and Government Pleader could be made only in accordance with the procedure prescribed by Rule 5 of the Orissa Law Officers' Rules, 1971, and this having not been done opposite party No. 4 is not validly appointed. In the counter affidavit it is maintained that the Orissa Law Officers' Rules, 1971 (hereinafter called the Rules) are not statutory, but merely procedural instructions issued by the Government; that the compliance with Rule 5 was not mandatory, but the same in any case has been complied with and further that the appointing authority being the State and the State having appointed opposite party No. 4. there is no case for the issuance of a writ of quo -warranto.

(3.) MR . Swain, the learned Counsel appearing for the Petitioner, urged that the Rules were duly published by the Government of Orissa in the gazette; that they purport to be issued by the Legal Remembrancer and ex -officio Additional Secretary to Government "by order of the Governor" and they relate to conditions of service to a post and should therefore be held to be statutory even though on the face of it, it is not stated that they were issued by the Governor in exercise of his powers under Article 309 of the Constitution. The learned Advocate General on the other hand contends that the endorsement at the end of the Rules is nothing more than an authentication of the Rules; that the Rules are essentially procedural in nature and do not relate to any post in connection with the affairs of the State and cannot be presumed to have been framed under Article 309 of the Constitution,