TARAK NATH MUKHERJEE Vs. STATE OF BIHAR

JUDGEMENT

(1.) The controversy in this Writ. Application is short and simple and point covered by binding judicial precedents. As such, we do not propose to set out the facts in detail. It may only be stated that the petitioner by order dated 26th October, 1989 as I contained in Annexure-l was appointed Public Prosecutor for the district of Dhanbad for a term of three years. On 26th November, 1990, however, Sri Janki Prasad Kewat, respondent No.4, was appointed as the Public Prosecutor in his place. A copy of the said order appointing respondent No.4 as Public Prosecutor has been marked Annexure-2 to the Writ petition. No formal order cancelling or terminating the appointment of the petitioner was communicated him or has been brought or record.

(2.) A counter-affidavit sworn by Sri Saket Bihari Ambastha. Under Secretary in the Department of Law, has been filed on behalf of the respondent State, in paragraph 8 whereof it has been stated in rather oblique terms that the appointment was cancelled after a month of the end of probationary period. The reason for making fresh appointment, but not terminating the previous appointment has been stated in paragraph 6 of the said affidavit in these words: Thus, in normal way, the term of appointment of Shri Mukherjee would have been expired on 26th October, 1992 but in the mean-while when the new State Government came to power in March, 1990, it took a policy decisions to make fresh appointment of Public Prosecutor and Government Pleader in all the districts of the State irrespective of the fact whether they have completed their term or not Mr.M.M.Banerjee, learned counsel appearing for the petitioner, submitted that in view of the stand taken on behalf of the respondents this case is fully covered by the ratio of the decision in Uday Nath Roy v. State of Bihar and others. We shall refer to the observations and the law laid down in the said decision soon hereinafter.

(3.) Respondent No.4 has also filed counter affidavit. The thrust of his stand therein is that the petitioner, after appointment of respondent No.4 as the new Public Prosecutor, voluntarily made over charge of the office on 3rd December, 1990 and accordingly, he must be deemed to have waived his rights, if any to hold the post.