UDAI NATH ROY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner, who was appointed as a public prosecutor, Purnea, by order dated 7-2-1990, has been removed by the State of Bihar by its order dated 25-9-1991 cancelling the earlier appointgent of the petitioner for a period of three years. THE petitioner has challenged the order dated 25-9-1991 (Annexure-1) cancelling his appointment.

(2.) THE facts of the case are not in dispute. THE petitioner was appointed as a public prosecutor, Purnea, by order dated 9th April, 1986, for a period of three years. THE term of the petitioner expired on 25-4-1989, as he had joined his office on 15-4-1986 pursuant to his appointment. It appears from Annexure-3 that even before his term had expired, the Deputy Secretary, Law, of the Government of Bihar by his communication dated 17th March, 1989 had informed the District Magistrate Purnea to continue the petitioner as the public prosecutor till such time an appointment was made. Accordingly, the petitioner continued to discharge the duties of a public prosecutor. Annexure-3 is the order of the District Magistrate dated 28-4-89 directing the petitioner to continue as a public prosecutor till a new public prosecutor was appointed. It appears that recommendation had been called for from the District Magistrate, Purnca, in consultation with the District Judge, Purnea, for appointment of the public prosecutor. THE name of the petitioner was also one of the names recommended by the District Magistrate and the District Judge, Purnea. THE matter remained under consideration of the Government and finally by an order dated 7th February, 1990(Annexure-l), the petitioner was appointed as the public prosecutor, Purnea for a term of three years with the effect from 25-5-1989, since he had been functioning as a public prosecutor upon expiry of his first term. In the month of March, 1990, there was a change of Government and the earlier ruling party failed to secure majority in the Legislative Assembly, with the result that another political party came in power. THE impugned order was on 25-9-1991 (Annexure-1) whereby the appointment of the petitioner was cancelled and respondent No. 3 was appointed in his place as the public prosecutor, Purnea, with a tenure of three years. THE petitioner has assailed (Annexure-1) in this writ petition-

(3.) THE learned Advocate-General appearing on behalf of the State contended that there was juctification for the Government to terminate the appointment of the petitioner. He submitted that the term of the petitioner as a public prosecutor expired on 25-4-1989. He was asked to continue till the Government took a decision to appoint another public prosecutor in his place. THE matter kept pending with the Government and only on 6th February, 1990 the Cabinet approved the appointment of the petitioner as a public prosecutor. Consequently, the order (Annexure-2) appointing him as a public prosecutor was issued on 7th February, 1990. He submitted that the appointment of the petitioner took place at a time when the election process had begun. THE Government in power knew that the elections were round the corner and hence it was improper on the part of the Government to make any appointment at that stage. He submitted that a public prosecutor must enjoy the confidence of the Government and, therefore, it is open to the successor Government to appoint another person as a public prosecutor, if the incumbent of the post did not enjoy the confidence of the Government. He further submitted that when the new Government took over in the month of March, 1990 a policy decision was taken by the Government to review all appointments made by the erstwhile Government to the post of public prosecutor, on the eve of the assembly election. Consequent to the above policy decision, therefore, recommendation was asked for from the District Magistrate in consultation with the District Judge of Purnea. Eleven name were recommended including the name of respondent No. 3. THE matter was examined by the Law Department and after full consideration the State Government took the decision to appoint respondent No. 3 as a public prosecutor. He justified the action of the Government having regard to the policy decision taken by the Government to review all appointments made by the earlier Government.