Padamdhar Pandey v. State of M. P — 1992 DIGILAW 573 (MP)

ORDER M.V. Tamaskar, J. 1. This order shall also govern the disposal of M.P. 3216/90, M.P. 3332/90, M.P. 3325/90, M.P. 3084/90, M.P. 3212/90. M.P. 3111/90. M.P. 278/91, M.P. 2913/91 and M.P. 140/91. The present batch of petitions are filed by the Government pleaders/public prosecutors & Additional Govt. Pleaders, Additional Public Prosecutors, declining to extend or renew the term of their respective offices any further by the State of M.P. & other respondents. In this petition a prayer has been made to issue a writ of mandamus, commanding respondents to continue the petitioners appointment & to quash by a writ of certiorary annexure P. 12 & P. 13 and also restraining the respondents from passing any order of removal & consequential benefits of payment of monthly legal remuneration. 2. The petitioner was enrolled an Advocate in April 1968. He has put in more than 22 years at the Bar. He was appointed as Additional Govt. Pleader and Additional Public Prosecutor vide Annexure P.6. & P.7 respectively, on 23.9.1989. A note appended to annexure. P.6 & P.7 states that the appointment shall be upto 28.2.90 or his successor is appointed which-ever is earlier. 3. There was change of Government of Bhartiya Janta Party securing absolute majority at the hustings in March, 1990. The State Government in Law & Legislative Department issued a general directions to extend the term of all the functionaries i.e. G.P. A.G.P.PP. and APP. vide order dated 22nd March, 1990 (Annexure P. 14 in M.P. 1401/91) until further orders. It was also directed that report in respect of all existing functionaries referred to above be called from Distt. Magistrate and Panel on recommendations of the Distt. and Sessions, Judge by 22.4.90. If already any panel was sent that may be treated as cancelled. The panel was to be prepared as per the requirements of L.D. Manual. As stated earlier vice Annexure P. 12 & P. 13. Shri Harish Chandra Shrivastava was appointed AGP/APP on 6th August, 1990 till 28.2.91 & the petitioner was informed by the same order to do the neadful. The petitioner thus challenges the said appointment of Harish Chandra Shrivastava & refusal to renew his appointment. 4. Thus, the controversy arises in this back ground. In the connected petitions the petitioners were cither already prforming their duties as GP/AGP/PP/APP, but were refused renewal and in one or two cases existing appointment was terminated prematurely. The petitioner thus challenges the said appointment of Harish Chandra Shrivastava & refusal to renew his appointment. 4. Thus, the controversy arises in this back ground. In the connected petitions the petitioners were cither already prforming their duties as GP/AGP/PP/APP, but were refused renewal and in one or two cases existing appointment was terminated prematurely. The petitioner in the instant petition and other connected petitions have challenged the orders on various grounds were particularly mala-fides and arbilraoiness polical grounds and non-compliance with the requirements of L.D. Manual to which reference will be made later in this order. Strong reliance is placed on the judgment in Shrilekha Vidyarthi V. State of U.P. reported in A.I.R. 1991 S.C.537. 5. Before we take up the controversy, it is necessary to refer provisions of Criminal Procedure Code and M.P. Law Dept. Manual. Section 24 Code of Criminal Procedure reads thus: Public Prosecutors:- 1. For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor for conducting, in such court, any prosecution, appeal or other proceeding on behalf of the Central or State Government, as the case may be. 2. For every district the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district. 3. The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons who are, in his opinion, fit to be appointed as the Public Prosecutor or Additional Public Prosecutor for the district. 4. No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears on the panel of names prepared by the District Magistrate under sub-section (3). 5. A person shall only be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2), if he has been in practice as an advocate for not less than seven years. 6. The Central Government or the State Government may appoint, for the purposes of any case or class of cases, as advocate who has been in practice for not less than ten years, as a special public Prosecutor. Particular attention was invited to sub-section (3), (4) & (6). Section 25, Assistant Public Prosecutors:-- 1. 6. The Central Government or the State Government may appoint, for the purposes of any case or class of cases, as advocate who has been in practice for not less than ten years, as a special public Prosecutor. Particular attention was invited to sub-section (3), (4) & (6). Section 25, Assistant Public Prosecutors:-- 1. The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates. 2. Save as otherwise provided in sub-section (3), no police officer shall be eligible to be appointed as an Assistant Public Prosecutor. 3. Where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case: Provided that a police officer shall not be so appointed-- (a) If he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted; or (b) if he is below the rank of Inspector. Order 27(1) C.P.C. 1. Suits by or against Government - In any suit by or against the Government the plaint or written statement shall be signed by such person as the Goverment may, by general or special order, appoint in this behalf, and shall be verified by any person whom the Government may so appoint and who is acquainted with the facts of the case. MP. Law Department Manual:-Public Prosecutors and Additional:- Public Prosecutors. Rule 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, and.34. 15. Appointments:-- All appointments of Public Prosecutors and Additional Public Prosecutors shall be made by Government. Government may call for recommendations for these posts from the District Magistrate at the head-quarters of the sessions division of other area concerned. The District Magistrate shall then consult the District and Sessions Judge demi-officially and submit the latter's opinion along with his own and also a list of pleaders practising in his district to Government. 16. Participation in politics and freedom from pecuniary eombarrassments:-- No Person shall be appointed as Public Prosecutor or Additional Public Prosecutor unless he agrees in writing to take no part in politics during the tenure of his appointment and gives a declaration in writing that he is free from pecuniary embarrassments. 17. 16. Participation in politics and freedom from pecuniary eombarrassments:-- No Person shall be appointed as Public Prosecutor or Additional Public Prosecutor unless he agrees in writing to take no part in politics during the tenure of his appointment and gives a declaration in writing that he is free from pecuniary embarrassments. 17. Probation and confirmation:-- Every Government pleader or Additional Government pleader shall be considered to be on probation for a period of one year from the date of his taking charge. At the end of that period the District Magistrate shall submit a report through the District and Sessions Judge to Government upon his conduct and ability. Should his work prove to have been unsatisfactory, his services may be dispensed without notice, should the report be satisfactory he shall be confirmed. For any sufficient reason Government may extend the period of probation. (2) The District Magistrate shall, by the 15 January each year, submit a report to Government through the District and Sessions Judge upon the conduct and ability of the Public Prosecutor or the Additional Public Prosecutor who has been confirmed under sub-rule (1). The report shall be marked confidential. 18. Term of Office:-- A Government Pleader or Additional Government Pleader shall be appointed for a period of three years, excluding the period of his probation and may be reappointed for further periods not exceeding three years at a time. Ordinarily no person will be appointed a Government Pleader or an Additional Government Pleader After he attains the age of sixty two years or continued in that office after he attains that age. Notwithstanding the expiry of the period, a Government Pleader or Additional Government Pleader shall continue, as such, until he is reappointed of his successors is appointed. 19. Termination of term :-- (1) Government may, at any lime and without assigning any reason, dispense with the services of a Public Prosecutor or an Additional Public Prosecutor after giving him one month's notice, (2) A Public Prosecutor or an Additional Public Prosecutor may resign his appointment after giving one months notice. 20. Leave of absence and pension:-- (1) A Public Prosecutor or an Additional Public Prosecutor shall give intimation to the District Maristrate of his temporary incapacity for work or intended absence from headquarters, for any period except while on leave granted under sub-rule (2) or sub-rule (3). 20. Leave of absence and pension:-- (1) A Public Prosecutor or an Additional Public Prosecutor shall give intimation to the District Maristrate of his temporary incapacity for work or intended absence from headquarters, for any period except while on leave granted under sub-rule (2) or sub-rule (3). (2) A Public Prosecutor or an Additional Public Prosecutor may be granted by the District Magistrate leave of absence for a period not exceeding 10 days at a time. When such leave is granted to a Public Prosecutor, the District Magistrate shall make arrangements for the performance of his duties under rule 23 during the period of his absence. (3) A Public Prosecutor or an Additional Public Prosecutor may be granted by Government leave of absence for any period exceeding 20 days at a time. During the absence of the Public Prosecutor a substitute will ordinarily be appointed to perform his duties under rule 23. During the absence of an Additional Public Prosecutor a substitute may or may not be appointed. (4) A Public Prosecutor or an Additional Public Prosecutor is not entitled to pension. 21. Status and powers:- (1) The Public Prosecutor is the person to whom under sub-section (1) of section 218 of the Code of Criminal Procedure, 1898, orders notifying commitments are issued by Magistrates within the area for which he is appointed. (2) A Public Prosecutor is also the Government Pleader appointed by the Central Government under clause (a) of rule 8-B of order XXVII of the First Schedule of the Code of Civil Procedure, 1908 (V of 1908), in relation to any suit by or against the Central Government to, or against a public officer in the service of that Government in any Court in Madhya Pradesh. 22. Withdrawal from prosecution:-- A Public Prosecutor or an Additional Public Prosecutor shall not withdraw from a prosecution under section 494, Code of Criminal Procedure, 1898 (V of 1898) without first consulting the District Magistrate, or, in his absence, the Headquarters Magistrate, if necessary an application should be made to the Court for a short adjournment to admit of such a consultation. 23. Dutices in Criminal Courts:- (1) The Public Prosscutor shall perform the following duties in Criminal Court, namely-- a. He shall conduct the presecution in all cases committed to the Court of Sessions in the area for which he is appointed. 23. Dutices in Criminal Courts:- (1) The Public Prosscutor shall perform the following duties in Criminal Court, namely-- a. He shall conduct the presecution in all cases committed to the Court of Sessions in the area for which he is appointed. b. He shall appear, when instructed by the District Magistrate, in appeals, references, revisions and other miscellaneous criminal proceedings before such Court of Session: and c. He shall appear, when instructed by the District Magistrate, in any criminal proceedings in any Court, at the headquarters of the district in which he resides. 2. The Public Prosscutor may be instructed by the District Magistrate to appear in any criminal proceedings in any other Court in the area for which he is appointed: Provided that he shall not be so instructed unless he is willing to act and can do so without detriment to the discharge of his other duties under this rule. 24. Duties in Civil Courts:-- Except in cases of a simple nature instituted against Government which may be conducted by the officer-in-charge, the Public Prosecutor shall be engaged to conduct civil cases on behalf of Government of the Court of Wards tried in any Court, other than the High Court, situated at the headquarters of the district in which he resides; Provided that (i) he shall not be so engaged unless he is willing to act and can do so without detrement to the discharge of his duties in the criminal courts; and (ii) the Deputy Commissioner may, by special order, appoint another legal practitioner instead of the Public Prosecutor in Courts of Wards cases. 25. Allotment of cases to public prosecutors and Additional Public Prosecutors :-- The Public Prosecutors and the Additional Public Prosecutor shall conduct such cases, criminal or Civil, as the District Magistrate or the Deputy Commissioner may entrust to them in Maccordance with the instruction issued in this behalf by the State Government from time to time. 26. Duties and cases under the Local Fund Audit Act:-- The Public Prosecutor residing at the headquarters of a District Judg shall, whenever required to do so, appear before the District Judge and represent the Deputy Commissioner in proceedings under clause (a) of section 14(1) of the Central Provinces and Berar Local Fund Audit Act, 1833 (IX of 1833) as provided in rule 5. 27. Advisory and other duties:- 1. 27. Advisory and other duties:- 1. The Public Prosecutor or Additional Public Prosecutor shall advise the District Magistrate on any legal question arising out of any criminal proceedings which has been instituted or is, proposed to be instituted within the Public Prosecutors Jurisdiction. 2. He shall also advise the Deputy Commissioner and departmental officers in civil matters of an urgent nature whenever there is no time to make a reference to the Legal Remembrancer and shall further render them such assistance as is required under these rules in matters connected with suit and appeals filed or proposed to be filed by or against Government within the Public Prosecutor's Jurisdiction. 3. It shall also be Ins duty to advise the Deputy Commissioner and departmental offcers in connection with cases under article 226 of the Constitution and he shall further render them such agsistance as may be required by them in preparing returns and affidavits in such cases". 28. Disabilities:-- 1. A Public Prosecutor shall not appear for the defence in any inquiry under Chapter XVIII of the Code of Criminal Procedure 1898 (V of 1898) Inquiry into cases triable by the Court of Session or High Court). 2. He ahall not take up any original case on benalf of any private parson, whether a complainant of an accused, without ascertaining whether the District Magiatrate requires his services in the case. 3. He snail not give legal advice to private persons in matters in which the interest of these persons are adverse to Government. 4. He shall not give advice in any case to private persons if, in his opinion, he is likely to be called upon to assist Government in the same case. 29. Relations with District Magistrates and Poliee:- 1. The Public Prosecutor or Additional Public Prosecutor should apply for any instructions he may need to the District Magistrate and shall keep in close touch with him in the discharge of his duties in the criminal Courts. 2. He shall also keep in close touch with the District Superintendent of Police, and other responsible police officers in the discharge of his duties in the criminal courts, and shall furnish such police officers with any information or reports relating to such cases as may reasonably be damaned from him. 30. 2. He shall also keep in close touch with the District Superintendent of Police, and other responsible police officers in the discharge of his duties in the criminal courts, and shall furnish such police officers with any information or reports relating to such cases as may reasonably be damaned from him. 30. Government's powers to engage private pleaders instead of Public Prosecutors:-- Nothing contained in this Chapter which provides for the engagements of a Public Prosecutor or an Additional Public Prosecutor in any case shall preclude Government from engaging in his place private legal practitioner for conducting that case. 31. Consultation with the Advocate General or Legal Remembrancer:--If, in any case, a Public Prosecutor or Additional Public Prosecutor thinks that an interview with the Advocate General or Remembrancer is necessary in connection with any legal question arising out of such case, he may, with the previous consent of the District Magistrate, interview the Advocate General or Legal Remembrancer, as the case may be. This interview shall be deemed to be an interview within the meaning of rule 104 for the purposes of his fees and travelling allowance any daily allowance. 6. Shri Rajendra Tiwari learned counsel for the petitioners submitted that the petitioners appointment involves a public element and can not be equated with engagraement of a Lawyer between private litigants. He aslo states that the public interest requires that the appointment should have continuity as the rules provide for appointment after due scrutiny by the District Judge and Dist. Magistrate and the Law Department and with a Promise or expectation of renewal, except in cases of misconduct, or charges of corruption or other reasons of inefficiency etc. He also submits the scheme of the Law Department Manual provides for initial appointment on probation for one year and thereafter a term of three years and for a further period of three years thus an incumbent must get sufficient time to work, or else, good advocates will not come forward for the job which in the ultimate analysis will be harmful to the public good. The Stale Government can manage the administration of criminal justice efficiently only if there is assurance of the continuity of tenure and change of government should not reasult in "Spoil" system at this level. The Stale Government can manage the administration of criminal justice efficiently only if there is assurance of the continuity of tenure and change of government should not reasult in "Spoil" system at this level. He also submits that there has not been any scrutiny at the District Level or the State Level before issuing orders of appointment and as a matter of rule all existing appointments have been terminated. He submits though the appointment of the functionaries under Criminal Procedure Code and L.D. Manual can not be equated with civil services yet some public element is involved and the whole sale removal or discontinuity of GP, AGPS & P.P.S. & A.PP'S will not have good effect on the administration of Criminal justice. Political bias should not be allowed to rule to the detrinment of public good. The Action being arbitrary is violative of Article 14 of the Constitution of India. 7. Mr. N.C. Jain, Learned Advocate General appearing for the State submitted that the tenure of practically each of the GP, AGP/PP & APP had expired. He submitted that on assumption of charge by the new government in March 1990, it by a general order Dt. 23.3.90 (Annexure P. 14) referred to above extended the term and issued directions for scrutiny as per L.D. Munual and submission of panel through District Magistrate on recommendations of Disirict Judge, as such, the U.P. Case (Ku. Shrilekha) is distinguishable, he says that the scheme of the U.P. Manual is different than the M.P. L.D. Manual, he submitted that there was no general orders issued to discontinue the services but there was honest exercise made to get the panels of name and appointments were made on merit and not on any politcal considerations, the question of public interest in as much the administration of criminal justice suffering docs not arise. It was also submitted that while it is true that there should be continuity in the office. It was equally inmortant the policies of the new government should also to be executed as such element of confidentiality was also involved. In any case there has been proper scrutiny & polittical bias has not swayed ever the public good as regards administration of Criminal justice in the State. 8. Before adverting to the respective contentions it will be proper to analyse the scheme under the two L.D. Manuals. In any case there has been proper scrutiny & polittical bias has not swayed ever the public good as regards administration of Criminal justice in the State. 8. Before adverting to the respective contentions it will be proper to analyse the scheme under the two L.D. Manuals. He had no benefit of looking into the provisions of U.P. Legal Rembmbrancer manual except throuth the reproduction made in Ku. Shrilekha's Case Para, 7.02 deals with the power of government to appoint Government Counsel in the districts which requires the government to appoint district Government Counsel (Civil. Revenue, Criminal) and also. where ever necessary, in the interest of efficient and expeditious disposal of business, to appoint Additional or an Assistant District Government Counsel to assist the District Government Counsel (Criminal) or (Civil) in discharge of his duties: Subordinate District Government Counsel for the conduct of civil cases in out laying towns of the district for the conduct of criminal or civil cases or both. Under para 7.05 Applications and qualifications: appointment to these offices or posts. The District Magistrate is required to consider all the applications received in consultation with the District Judge, giving due weight to the claim of the existing incumbents, if any. and to submit in order of preference the names of legal practitioners, together with the opinion of the District Judge on the suitablity and merits of each candidate. The process of selection expressly involves the District Judge and gives due weight to his opinion lor the obvious reason that the District Judge is expected to know best the comparative merit of the candidates for such appointments. Para 7.04 provides legal Remembrancer to submit the recommendations of the District Officer alongwith his own opinion tor the order of the Government. Para, 7.06 provides for appointment and renewal. Para. 7.08 for renewal of term and para 7.09 for maintenance of character roll of the appointees. Para 7.06 Appointment and renewal. l. The legal practitioner finally selected by the government may be appointed District Government Counsel for one year from the date of his taking over charge. 2. At the and of the aforesaid period, the District Officer, after consulting the District Judge shall submit a report on his work and conduct to the Legal Remembrancer together with the statement of work done in Form No. 9. 2. At the and of the aforesaid period, the District Officer, after consulting the District Judge shall submit a report on his work and conduct to the Legal Remembrancer together with the statement of work done in Form No. 9. Should his work or conduct be found to be unsatisfactory the matter shall be reported to the government for orders. If the report in respect of his work and conduct is satisfactory, he may be furnished with a deed of engagement in Form No. 1. for a term not exceeding three years. On his first engagements a copy of Form No. 2 shall be supplied to him and he shall complete and return it to the Legal Remembrancer for record 3. The appointment of any legal practitioner as a District Government Counsel is only professional engagement terminable at will on cither side and is not appointment to a post under the government. Accordingly the government reserves the power to terminate the appointment of any District Government Counsel at any time without assigning any cause. Para 7.07 Political Activity: The District Government Counsel shall not participate in political activities so long they work as such: otherwise they shall incur a disqualification to hold the post. Para 7.08 Renewal of term: 1. At least three months before the expiry of the term of a District Government Counsel, the District Officer shall after consulting the District Judge and considering his past record of work, conduct and age, report to the Legal Remembrancer, together with the statement of work done by him in Form No. 9 whether in his opinion the term of appointment of such counsel should be renewed or not. A copy of the opinion of the District Judge should also be sent along with the recommendations of the District Officer. 2. Where recommendation for the extension of the term of a District Government Counsel is made for a specified period only, the reasons therefore shall also be stated by the District Officer. 3. While forwarding his recommendation for renewal of the term of a District Government Counsel :- i. The District Judge shall give an estimate of the quality of the Counsel's work from the judicial standpoint, keeping in view the different aspects of lawyer's capacity as it is manifested before him in conducting Stale cases, and specially his professional conduct: ii. 3. While forwarding his recommendation for renewal of the term of a District Government Counsel :- i. The District Judge shall give an estimate of the quality of the Counsel's work from the judicial standpoint, keeping in view the different aspects of lawyer's capacity as it is manifested before him in conducting Stale cases, and specially his professional conduct: ii. The District Officer shall give his report about the suitability of the District Government Counsel from the administrative point of view, his public reputation in general, his character, integrity and professional conduct. 4. If the government agrees with the recommendations of the District Officer for the renewal of the term of the Government Counsel, it may pass orders for reappointing him for a period not exceeding three years. 5. If the government decided not to reappoint a Government Counsel, the Legal Remembrancer may call upon the District Officer to forward fresh recommendations in the manner laid down in para 7.03 6. The procedure prescribed in this para shall be followed on the expiry of every successive period of renewed appointment of a District Government Counsel. 7.09 Maintainance of Character roll:- 1. The District Officer and the District Judge shall, before the end of every year and also while leaving the district on transfer, place on record his opinion on the capacity and work of the District Government Counsel. The District Judge shall before recording such opinion obtain a report about the work and conduct of the district Government Counsel from the presiding officers of the courts, where they are generally reqired to practise. Similarly, the district officer shall before recording such opinion obtain a report from the Superintendent of Police regarding the counsel's capacity for prosecution of cases and assistance rendered to the investigating agency. The record, which shall be confidential, shall be maintained by the District Officer. Every adverse entry shall be communicated to the District Government Counsel concerned by the District Officer, with the prior approval ill the government. 2. The character roll of every District Government counsel shall also be maintained by the government in judicial (Legal Advice) section. The record, which shall be confidential, shall be maintained by the District Officer. Every adverse entry shall be communicated to the District Government Counsel concerned by the District Officer, with the prior approval ill the government. 2. The character roll of every District Government counsel shall also be maintained by the government in judicial (Legal Advice) section. For this purpose, the District Officer shall forward to the Legal Remembrancer a copy of all the confidential reports, recorded by him and the District Judge on the work and conduct of the District government Counsel by the first week of May every year for being incorporated in the character roll, maintained by the government. 3. The district Officer shall forward a copy of all the confidential reports, referred to in para 7.09(2) in respect of District Government Counsel (Criminal) to home (Police) Section of secretariat also for information. 4. Any shortcomings on the part of the District Government Counsel shall at once be brought to the notice of the Legal Remembrancer. 9. A comparison of the two manuals disclose that nature of appointment is practically similar i.e. initial appointment for one year in M.P. it is called probation and after completion of period of probation a term appointment of three years and termination or confirmation as the case may under Rule 17. There is also provision for extension of probation. The District Magistrate is required to send confidential report by 15th January each year after confirmation. The term can be extended for a further period of three years till the age of 62 years. He continues until his successor is appointed (Rule 18) under Rule 19 the services of PP or APP can be terminated after giving him a month's notice. As in U.P.L.R Manual there is no form of engagement prescribed in M.P. except issuance of an order. The appointment is not to a post under the government, can be terminated without assigning any reason. The procedure for renewal is elaborate.upto the age limit being of 60 years and beyond 60 years in U.P. though such an elaborate procedure is not provided in M.P. Manual the basic requirement of judging suitability, efficiency and integrity are obtained in shape of report for confirmation. Under the U.P.L.R. Manual renewal is contemplated while under the M.P. Manual it is confirmation and further appointment for three years. Under the U.P.L.R. Manual renewal is contemplated while under the M.P. Manual it is confirmation and further appointment for three years. The word renewal confirmation and further appointment for three years in effect nothing but a machinery for providing continuity subject to certain conditions as per rules. There is no separate provisions for maintenance of Character Roll, in M.P. participation in polities is not permitted in both. 10. Having referred the relevant rules from the two manuals the question to be considered is whether the appointment has necessary concommitant of appointment to public office or that it is only a professional enagement like that between a private client and his lawyer, or that it is purely contractual with no public element attaching to it which may be terminable at any time at the sweet will of the government. The question has been elaborately considered by the Supreme Court in Ku. Shrilekha's case in para 14. There can be no doubt There can be no doubt that this function of the Public Prosecutor relates to a public purpose entrusting him with the responsibility or so acting only in the interest of administration of justice. In the case of Public Prosecutors, this additional Public element flowing from statutory provisions in the Code of Criminal Procedure, undoubtedly, invest the Public Prosecutors with the attribute of holder of a public office which cannot be whittled down by the assertion that their engagement is purely professional between a client and lawyer with no public element attaching to it. Having held that the very nature of duties assigned to and performad by the GP.AGPS.PPS & AGP both under the Civil Procedure Code and Criminal Procedure Code, it is obvious that the appointment has some thing mere than mere contractual element, but in the very nature acts performed by the functionaries they discharge statutory duties for which the continuity of appointment is essential and obligatory. 11. Next question to be considered is whether the order dated 22nd March 1990 Annexure P. 14 suffers from same draw back as pointed by Supreme Court in respect of the order passed by the State of U. P. on 6th February 1990. 11. Next question to be considered is whether the order dated 22nd March 1990 Annexure P. 14 suffers from same draw back as pointed by Supreme Court in respect of the order passed by the State of U. P. on 6th February 1990. The supreme Court has held that the action of the Stale Government has to be tested on the touch stone of Article 14 of the Constitution, it is also held that the judicial review does not require any elaborate considerations since even the minimum permitted scope of the judicial review on the ground of arbitrariness, or unreasonableness or irrationality is sufficient to invalidate the action. We may refer to Para. 19 in Ku. Shrilekha's case. Even otherwise and sens the public element so obvious in these appointments, the appointment and its concomitants viewed as purely conuactual matters after the appointment is made, also attract Article 14 and exclude arbitrariness permitting judicial review of the impugned State action. In this back drop of the legal position now consider the case of the petitioner:- 12. The petitioner was appointed vide Annexure P.6 & P.7. The order of appointment as AGP is dated 23.9.89 it was to conlinue upto 28.2.90. By circular Annexure P. 14 dt 22.3.90 all appointments were extended until further order and the District Magistrate were required to send report in respect of each existing functionary and a panel four times the number of post was called for along with opinion of District and Sessions Judge. Sepeate panels were required to be sent for PP & APP. The District Magistrate vide its letter dt. 30-4-90 Annexure P. 11 wrote to the District & Sessions Judge with reference to the Government letter dt 22.3..90 to send the panel. The petitioner vide Annexure P. 14 has stated that as per his information names of four advocates were recommended by District & Sessions Judge for the post of APP in which, the name of petitioner was not there. Annexure P. 15 is a letter from District Magistrate to State Government (Law & Legal Administration Department) that as per instructions dt. 22.3.90 and wireless Message dt. 25.4.90 the names have been sent. Also a letter dt. 15th March 90 has been placed on record by which the Additional Secretary (L & L Department) addressed to all Commissioners. Annexure P. 15 is a letter from District Magistrate to State Government (Law & Legal Administration Department) that as per instructions dt. 22.3.90 and wireless Message dt. 25.4.90 the names have been sent. Also a letter dt. 15th March 90 has been placed on record by which the Additional Secretary (L & L Department) addressed to all Commissioners. Collector, District Magistrate and District & Sessions Judges that all existing functionaries will continue until further orders. There is no other material on the record. The state on the other hand in its return which is filed in Part I & Part II stated thus Para 5 pg. 53. It is submitted that no body has been appointed as GP/AGP whose name was not in the panel. Thus, there is no breach of any of the provisions of law Manual or C.P.C. committed in the case. The procedure has been so made that the appointment of the best amongst those available may be made and it has been so done. Wisdom of the policy arc the lack of it, are the desirability of the better alternative is not judicially reviewed in such cases the scope of the Judicial review as held in Ku.Vidyarathi's case is just to satisfy that it is not vitiated by the vice of 'arbitrariness' according to the above cited case, is that the State action is not uniformed by reason or it is contrary to the prescribed mode, the onus to prove the same is on the petitioner, which he has failed to discharge in his pleadings. It may further be stated that there is a presumption of validity of the action. Part II para. 15 Pg. 57 In reply to para 2: These facts arc not disputed. It is also submitted that the State Government has full powers being sovereign remove or appoint any Public Prosecutor as and when the occasion arises. This term purely depends on the confidence of the Stale in a particular Public Prosecutor/Government Pleader and the matter is not justiciable. No agency other than the State Government can compel the State to appoint or continue a particular Public Prosecutor/Government Pleader. Para 18. Pg. 57 In reply to Pare 7: As regards the allegations regarding agency, it is submitted that the contract of agency can be terminated at any time and the State Government cannot be directed to continue any particular agent. Para. Para 18. Pg. 57 In reply to Pare 7: As regards the allegations regarding agency, it is submitted that the contract of agency can be terminated at any time and the State Government cannot be directed to continue any particular agent. Para. 35 Pg.60-61. In reply to para 26: As regards allegations in Para 26 it is true that vide Annexure Ex. P5. Dt. 22.3.90 the term of all Government Advocates/Public Presccutors/Additional Public Prosecutors was extended. The new Government headed by the Bhartiya Janta Parly was sworn in the month of March 1990. Had the Government any intention to change the Government Advocate Public Prosecutor/Additional Public Prosecutor, their term could never have been extended and they would have been permitted to work only under rule 18 of the Law Department's Manual, Annexure P. 5. goes to show that the post or the continuance thereof was not politically oriented. The reference to the word 'confirmation' in rule 17 of the Law Department's Manual only means that the term of Government Pleaders/Public Prosecutors/Additional Government Pleaders may be extended. The word 'confirmation' is not used in the sense in which it is used in case of civil services. The new Government wanted to organise the institution on a better footing and it is with this object that panels were called. It is also stated that there was no en-block removal or change in these posts and the old appointees contiuned to work for different periods in different districts which also demonstrate the fact that the same was not actuated by political motives. It is also asserted that with the change of political Government to or even with the change of Head of the Slate or the Union, a custom/practice has developed that the Attorney General/Advocate General and their associates, tender resignations. No Court of Law has ever objected to this custom/practice and there has been no interference which goes to show that custom is not illegal or unconstitutional. It should also not be legally offensive or justiciable as the same practice trickles down in the entire cadre. In a democractic set up. parties have their own idealogies and almost the whole working pattern changes. The changes is mandatory by Public opinion. Even if there is a little change in the institution of Government Pleaders or the Public Prosecutors, the change should not result in any social or judicial restraint. In a democractic set up. parties have their own idealogies and almost the whole working pattern changes. The changes is mandatory by Public opinion. Even if there is a little change in the institution of Government Pleaders or the Public Prosecutors, the change should not result in any social or judicial restraint. It is, therefore, submitted that the scrutiny as is envisaged by the present petitioner is beyond the judicial discretion or the justiciable jurisdiction of the Court. It is, therefore, submitted that the submissions of the present petitioners are boyond the ambit of Article 226 of the Constitution or any other Law for the purpose. It is also denied that the panel was submitted by the District Judge, without any proper assessment or appreciation. Para. 45 Pg.63 denied. The non-inclusion of the petitioner's name in the panel is a sufficient proof that his performance was not satisfactory and no independent report was necessary. The report was. however, called for by way of precaution but the State Government was not bound to wait for the report specially in view of the panel. Non inclusion of name in panel. 13. During the course of hearing Learned Advocate General also submitted that all the files concerning the appointments of existing GP, AGP'S & PPS & AGP'S arc available for perusal. He also slated that there were complaints received regarding performance, integrity and in some cases pendency of criminal prosecution. He slated that this material can be verified from the record. At one stage of hearing Advocate General sought privilege in respect of these documents but later on admitted that he will furnish neccssary details to the counsel for the petitioner. On resumption of hearing Learned Counsel for the petitioner did not pursue the matter further. 14. Basically submission of the respondents was that the term of practically all the petitioners before the court had expired as such only course open to the State was to call for fresh panel. Details are as under:- Name Dale of Expiry (1)M.P. No. 2411/90- Pedamdhar Pandey 28.2.1990 (2)M.P. No 2913/91- C.K. Sharma 28.2.1990 (3) M.P. No. 3484/91 - M.Ahmed 28.2.1990 (4) M.P. No. 3712/90- Jai Ram Singh 28.2.1990 (5) M.P. No. 3322/90- Manorama Patel 28.2.1990 (6) M.P. No. 272/91- M.P. Piparaiya 28.2.1990 Yaduvashmani-One month notice (7) MP. No. 3325/90- D.P. Sharma 17.1.1990 (8)M.P.No. 140/91- Chandra Bhan 28.2.1991 Sharda Patel 31.3.1991 Y.P. Pande 22.7.1991 15. No. 3325/90- D.P. Sharma 17.1.1990 (8)M.P.No. 140/91- Chandra Bhan 28.2.1991 Sharda Patel 31.3.1991 Y.P. Pande 22.7.1991 15. The learned Advocate General also submitted that the reasons for discont inuance or non-confirmation or non-renewal arc in file. They exist the files are before the court for perusal, in the circumstances the action of the State Government cannot be said to be arbitrary. 16. We have examined the files produced before us by the Advocate General. We take up the cases of the petitioners serially, as follows:-- 16(A). The case of petitioner Padmadhar Pandy has been dealt with in the Department of Law and Legislative Affairs File No. 1(B) 14/83 relating to Satna District. This file contains the appointment to the post of Govt. Pleader, P.P. and A.P.P. from the year 1983. We have perused the orders passed in respect of the persons appointed to the post and it is not worthy that in most of the cases even prior to the present appointment, the appointments were only for one year and continued from time to time. One important factor, we noticed, is that in no cases, appointments have been made without there being any recommendation from the District Magistrate after obtaining the opinion of the District Judge of the district. In the present case, alter the decision taken to extend the term of Govt. Advocates vide Annexure P-14 dated 22.3.1990. The District Magistrate was asked by the Law Department to initiate the process, as per Law Department Memo. We find a letter being No. 133. Satna, dated 11.5.1990 from the District Magistrate with reference to the letter dated 22.3.1990 and the wireless message dated 20.4.1990 sending the panel as per opinion given by the District Judge. Letter of the District Judge is also on record, which is dated 4.5.1990 (Sr.No. 17/1-1-4/74). A separate panel for P.P. and A.P.P. was submitted giving the date of birth, dale of registration, number of years of practice and remarks about the work. Scrutiny further reveals that name of one Pancham Lal Tamrakar was recommended by the Finance Minister. Shri Sheetla Sahai. but the said recommendation was turned down by the Law Department on the ground that his name was not recommended by the District Magistrate. We find a letter from District Magistrate, Satna as regards the work of Shri Devi Prasad Shanna and Padmadhar Pandey, A.P.P.. Shri Sheetla Sahai. but the said recommendation was turned down by the Law Department on the ground that his name was not recommended by the District Magistrate. We find a letter from District Magistrate, Satna as regards the work of Shri Devi Prasad Shanna and Padmadhar Pandey, A.P.P.. which reveals that there arc number of prosecutions pending against the son of Shri Padmadhar Pandey and that his work is not satisfactory. In this background, the appointment made in respect of the Satna district, challenged before this Court is totally misconceived There has been a proper scrutiny and the process was initiated on expiry of the term. 16(B). Now, we will take up the case of Shri M. Ahmed and Smt. Manorama Patel, Jabalpur. The cases of the petitioners, were considered in the Law Department File No. 1.(B) 14/86-31-B. The said file contains the correspondance in respect of appointment of the Govt. Pleaders. A.G.P., P.P. and A.P.P. This is a file in respect of appointment of Advocates right from the year 1988 till date. We find a noting in respect of appointment and specific reference to the number of appointments to be made and the term of the Govt. Advocates expiring on 28.2.1990 and the process to be initiated. The note clearly refers to the present petitioners and recommendations were called for along with the opinion of the District Judge. In case of the petitioners, the names of the two petitioners were not included by the District Judge or the District Magistrate. There does not appear to be any illegality committed in case of the petitioner also. There is also a note in respect of one of the petitioners, regarding the incapacity to perform the duty as P.P. or A.P.P. As such, extensions was not granted. 16(C). In case of Chandra Bhan Jain. Chhatarpur, the Law Department notings are contained in the file No. I-B/58/80. Shri Chandra Bhan Jain was Govt. Pleader for a long time. The report shows that there was some complaint against him. The note did include his name and was placed at No. 4 in the panel. As such, he was not appointed. There is also noting in the case of Narayan Prasad Piparaiya. Moreover, it is apparent that the term of the petitioners had already expired on 28.2.1991. 16(D). The case of Shri Yaduvanshmani Pandey, Rewa was dealt in File NO. 1 -B/10/87. As such, he was not appointed. There is also noting in the case of Narayan Prasad Piparaiya. Moreover, it is apparent that the term of the petitioners had already expired on 28.2.1991. 16(D). The case of Shri Yaduvanshmani Pandey, Rewa was dealt in File NO. 1 -B/10/87. A note discloses that he has no workable knowledge of English to efficiently discharge his duties as Public Prosecutor. Apart from that, an explanation was sought from Shri Pandey in respect of some complaint in a claim case is on record. His name was also included in the panel. In the case of Jai Ram Singh, the file discloses the consideration of their names along-with others. The discussion in the file further discloses the sending of the panel with reference to the letter dated 22.3.1990. It is not a case of non-consideration or discontinuance there being no reason for the same. 16 (E). The case of Shri Dharmendra Sharma and Shri C.K. Sharma was considered in the file No. 17(E)/108/91, along with Jabalpur cases referred in para 16(C). The cases of both the Petitioners were considered in view of the letter of the State Govt, they are to be found in the notings at page 19. There is a long note considering the cases of the petitioners. There is also a note that the term of these petitioners expired on 28.2.1989. and their cases for confirmation under Rule 18 of the Law Department Manual, were also considered. There are adverse reports, reference to which has been made, need not be staled here. We do not think that the cases of the petitioners were not considered for confirmation after the expiry of that term. 17. In view of the facts that the reasons are contained in the files, it would not be possible to hold that the discontinuance was mala fide or was for apolitical reason. 18. The original records, in the present case, contain the reasons and as per Supreme Court in Shrilekha's case, there is no scope for interference with the order passed by the State Government. 19. We have referred the file mentioned above and the learned counsel for the petitioner had also stated that if the reasons are there in the file, the ratio of Shrilekha's case, will not apply. 19. We have referred the file mentioned above and the learned counsel for the petitioner had also stated that if the reasons are there in the file, the ratio of Shrilekha's case, will not apply. According to him, there were no reasons and their cases were not considered but the said contentions are belied by the records referred to above. 20. We have considered the respective contentions. We arc convinced that the term of most of the appointees was over and for further continuance the recommendations as required under Rule 17 and 18, were necessary. Since the panel was prepared on the opinion given by the District and Sessions Judge of each district, there does not appear to be any mala fide or arbitrary action in not continuing the petitioners. More so, the action was not taken without examining individual file. Sufficient safe gurad is in built in the rules as the opinion of the District and Sessions Judge has Distinct weight and merit and ability as listed in the janel is not normally deviated. In this view of the matter we arc of the view that orders appointing the G.P. and A.GPS, P.P. and APPS, does not suffer from any arbitrariness. While taking this view, we are fully aware of the decision in Ku. Shrilekha's case. We make it clear that we arc not impressed by the arguments of Mr. Advocate General that it is purely contractual relatons between a client and the lawyer. The Public element in the enagement or appointment of functionaries (G.P. A.G P. P.P and A.P. Ps.) is obvious. It is also statuory as the P.Ps. and A.P.Ps. are required to perform statutory obligations. We also do not agree that the State action is not reviewable. We need not dwell on this point in view of Ku. Shrilekha's case, (supra) 21. The learned counsel for petitioner submitted that continuity in tenure is a must for effective administration of original justice, but we are equally aware that these are not same thing as Civil Services, though it may be a civil post having public element. The short tenure for which these appointments arc made, itself, makes it apparent that it does not contemplate a full service tenure, exceptions apart. We are further of the view that an element of confidentiality equally plays important role. The short tenure for which these appointments arc made, itself, makes it apparent that it does not contemplate a full service tenure, exceptions apart. We are further of the view that an element of confidentiality equally plays important role. Some choice should be allowed to the government in this regard but certainly not the whole sale removal or discontinuance in the name of confidentiality can be allowed. 22. Shri Tiwari learned counsel for the petitioners referred to Ramchandran Vs. Alagiriswami A.I.R. 1916 Mad. 450 & Mundrika Prased Vs. State of Bihar A.I.R. 1979 S.C. 1871. in KJ.Thons case the controversy was regarding the appointment and promotion of Assistant Public Prosecutor and Public Prosecutors on interpretation of sec. 24 and 25 of the Criminal Procedure Code. We do not find any contrary view taken in Madras case. 23. In para 46 in Ku. Shrilekha's case, the circular dated 6.2.1990 suffered from the vice of deliberate departure from Rules under U.P.L.R. Manual and directed termination of all appointments of Government Counsels in districts of Uttar Pradesh by an omnibus order, where as in the present case, all appointments were extended and requisite scrutiny made in each individual case. In fact except one or two cases, the term of the various incumbents had actually expired, where it did not notice under Rule 19 was issued as in M.P.No. 1401/91. Since the scrutiny in each individual case was made before terminating appointment or appointment on expiry of term, the direction issued in Ku. Shrilekha's case in para 47, is not called for. As stated in para 36, by Hon'ble Supreme Court ''The question whether an impugned act is arbitrary or not." is ultimately to be answered in given facts and circumstances of the case. 24. For the reasons given, we are of the opinion that these petitions are liable to be dismissed. 25. In the result, the petitions therefore, fail and are dismissed. There shall be no orders as to costs. Security amount, if any, be refunded to the petitioner. By D.M. Dharmadhikari, J. (26)-- With respect I concur with the opinion of learned brother M.V. Tamaskar, J.--as also the conclusions drawn by him, on the basis of the provisions contained in the Law Dapartment Manual and on examination of the concerned secretariat tiles. I would, however, like to add a few wrods of my own in support of our common conclusion. 27. I would, however, like to add a few wrods of my own in support of our common conclusion. 27. The ma. ground of challenge in this batch of petitions is that the office of Government Pleader and the Public Prosecutor has an element of continuity in it and it cannot be terminated or disrupted at the sweet will, whim or fancy of the State Government. The attack to the action of the State Government is based on the decision of the Supreme Court in the case of Ku. Shrilekha Vidyarthi etc. v. State of Uttar Pradesh and others A.I.R. 1991 S.C. 537. Placing reliance on the above decision of the Supreme Court, the argument that has been built by the learned counsel for the petitioners is that as in the State of Uttar Pradesh, for all Government Pleaders and Public Prosecutors, in the State of Madhya Pradesh also an omnibus decision has been taken, after coming to power by the Government led by Bhartiya Janata Party, that all appointments of Government Pleaders and Public Prosecutors made by the erstwhile Government of Congress Party have to be snapped. Taking support of the decision of the Supreme Court in the case of Ku. Shrilekha Vidyarthi (supra), the contention advanced is that without scrutiny of the individual merits and demerits of the incumbents of the said offices, there can be one uniform policy decision to nullify all the appointments and to appoint a fresh team consisting of appointees favourable to the policy of the new Government. 28. My learned Brother Tamaskar,J, has delved into the files of the Law Dapartment concerning Government Pleaders and Public Prosecutors and has come to a conclusion with which I fully concur that in the State of Madhya Pradesh the appointments were not set at naught without making scrutiny of marits and demerits of the individual incumbents to the offices. The present case, therefore, is distinguishable from the case before the SupremeCourt, arising from the State of Uttar Pradesh, where the Legal Remembrancer, by one common order, for the whole of the State of Uttar Pradesh, had set aside all the appointments of Government Pleaders and Public Prosecutors soon after the fall of the Congress Government and taking over of power in the State by the Bhartiya Janata Party. This is not the position in these cases in the State of Madhya Pradesh. 29. This is not the position in these cases in the State of Madhya Pradesh. 29. As has been pointed out in the opinion of Tamaskar, J, when the B.J.P. Government took over in this State, the terms of appointments of several incumbents to the office were shortly to come to an end. The newly formed Government, in order to streamline the administration of justice in the matter of defending and handling State cases, took a policy decision to have a second look to the appointments. The State Government, therefore, initially invited from all the District Magistrates, through the concerned District & Sessions Judges panels of names for making fresh appointments to the offices. A waiting submission of panels and consideration of the question of fresh appointments, the State Government extended the term of the existing incumbents until further orders. After receipt of the panels, from the District Magistrates, submitted by them in consultation with the District & Sessions Judges, the State Government issued fresh orders of appointments in favour of persons who were selected for the appointments from the panels. There was no prohibition for inclusion of names of any of the existing incumbents in the panels to be submitted for the appointments. There were reports available, on the work and conduct of the existing incumbents, before the State Government in its Law Department. This is not the case, therefore, where the State Government by one stroke of pen terminated all the existing incumbents and appointed new ones without any application of mind and without scrutiny of their individual cases. 30. The second question of some what general and greater importance is with regard to the Status and nature of the office of the Government Pleader and the Public Prosecutor. In the case of ku.Shrilekha Vidyarthi (supra), it has been held that the appointment to or termination from the office involves public element and, therefore, the State Government cannot act arbitrarily and has to support its action based on reason and the provisions contained in the Law Department Manual. The appointment to the office and termination therefrom is said to involve public element because the holder of the office has to discharge duties towards general public in the matter of conducting criminal prosecutions and civil cases in which the State is a party. The holder of the office is paid from the State ex-chequer. The appointment to the office and termination therefrom is said to involve public element because the holder of the office has to discharge duties towards general public in the matter of conducting criminal prosecutions and civil cases in which the State is a party. The holder of the office is paid from the State ex-chequer. In view of the above decision of the Supreme Court it has to be held that the office is of a Public nature and the State is enjoined to act fairly, reasonably and with advertance to the provisions of the Law Department Manual. Merc change of Government or a policy decision taken in the Ministry or the Law Secretariat, cannot in themselves be good reasons for making fresh appointments to the office and for termination and dismissal from it. The practice to continue or discontinue an incumbent of the office at the pleasure, whim, caprice and fancy of the authorities in power has to be deprecated because it not only belittles the dignity of the offices, but also harms the cause of administration of justice. The holder of the office is in law an 'agent' of the Government when defending or handling civil cases as per the provisions of the C.P.C. He is a prosecutor under Cr.P.C. on behalf of the Government in criminal cases. But he is not a mere mouth piece of the Government or its servant or an agent in general sense as is sought to be understood. He holds a dignified office and status and discharges duties and functions not only towards the State to which he represents, in the cases before the Law Courts, but has also obligation towards the society. He is expected to uphold the Law and help in administration of justice and may in given circumstances or cases advise the Government to withdraw the case or not to contest the same to serve the cause of public or the justice. 31. The other related question is whether the holder of such office can claim any permenancy or continuity as is sought to be set up on the basis of the contents of the Law Departmental Manual. It has not to be lost sight of that holder of the office of the Government Pleader or Public Prosecutor is not a public servant and there is no relationship of master and servant between the State and the incumbent. It has not to be lost sight of that holder of the office of the Government Pleader or Public Prosecutor is not a public servant and there is no relationship of master and servant between the State and the incumbent. It is an engagement and not service. No doubt it is an engagement of public nature involving public element as thereby the person who engages and the person who is engaged have to work in the interast of administration of justice, but for that reason the person who is engaged as an agent or prosecutor, cannot claim any continuity or permanancy in such engagement. The engagement involves public element, but the element of confidentiality in this relationship is equally important. Similar to the relationship between a private litigant and his counsel, so also in the engagement of a legal expert by the State for prosecuting and defending its cases, the upper most consideration is one of trust and confidence. The Government cannot be forced to continue an existing incumbent to the office although it has lost its trust and confidence in that person. The Courts cannot force the Government to engage advocates or counsel in whom it has no trust or confidence. The only safeguard to ensure efficient administration of justice, that has been pointed out by the Supreme Court in the case of Ku. Shrilekha Vidyarthi (supra). is mat since the holder of the office discharges public duties and is paid from public ex-chequer, the State in dealing with the holder of such office should act reasonably, fairly and cannot act arbitrarily or purely on political considerations. A practice developed in this country as sound custom that holders of high offices such as Attorney General and the Advocate Generals, who head the team of counsel engaged by Government, step down from office soon after the change or fall of the Government by which they were appointed. This is an indication that the relationship is one of mutual confidence and trust and not purely a contractual or professional engagement. The argument, therefore, on behalf of the petitioners cannot be accepted that holders of similar offices appointed for subordinate Courts for a term with a right of being reappointed for a certain period, acquire a defeasible right to continue in office irrespective of the State losing confidence or trust in them. The argument, therefore, on behalf of the petitioners cannot be accepted that holders of similar offices appointed for subordinate Courts for a term with a right of being reappointed for a certain period, acquire a defeasible right to continue in office irrespective of the State losing confidence or trust in them. Apart from legal expertise a counsel or an advocate is engaged because the person engaging him reposes trust and confidence in him. On this aspect, I do not find why should there be a different standard of conduct applied than were a private litigant engages a counsel or disengages him and the State does it, which is also, in the Court of law, one of the parties arrayed as a litigant. 32. The nature of appointment and the status that the Government Pleaders and the Public Prosecutors possess can also be better understood from the contents of the Law Department Manual meant to regulate their relationship with the Government. Under Rule 15, the appointment of Public Prosecutors are made on the recommendations of the District Magistrates in consultation with the District & Sessions Judges of the concerned districts. The intendment of the rule is that only lawyers competent to handle government cases have to be selected for appointment, whose merit is known and judged by the District Magistrate/District and Sessions Judge concerned. As per rule 16, Public-Prosecutor has to be away from politics and has to give an undertaking in writing to that effect before he is appointed. The prohibition contained in the rule indicates that the holder of office is not a political person 1 elonging to any political party and has to discharge his duties without being influenced by any political consideration. He is purely to act as a lawyer and to up-hold the law and help in administration of justice even while representing the Government. Rules 17 and 18 read together clearly show that the rule of 'hire and fire' has no play in relationship of counsel representing the Government although his engagement is as an agent or legal expert. A reasonable length of tenure and honourable status is contemplated in the said rules. Rule 17(1) requires appointment, to begin with, on probation for a period of one year. Thereafter, on the basis of report of the concerned District Magistrate/District & Sessions Judge concerned, about his conduct and ability, the probationer deserves to be confirmed. A reasonable length of tenure and honourable status is contemplated in the said rules. Rule 17(1) requires appointment, to begin with, on probation for a period of one year. Thereafter, on the basis of report of the concerned District Magistrate/District & Sessions Judge concerned, about his conduct and ability, the probationer deserves to be confirmed. If his work during the probation period is found unsatisfactory, his services may be dispensed with without notice. The period of probation, however, can be extended. The provision of Rule 18 lays down that he has to be appointed for a period of three years excluding the period of probation and may be appointed for a further period not exceeding three years at a time. Normally he is not to be continued after he attains age of 62 years. There can, however be exceptions in that regard. The existing appointee continues in office notwithstanding the expiry of his term until he is re-appointed or his successor is appointed. Rule 19, which provides for termination of his term at any time on one month's notice has to be construed in the light of the provisions contained in rules 17 and 18. It is lamentable that there are instances on record where rules 17 and 18 in the matter of appointment and fixing term of Government Pleaders/Public Presecutors have not been followed and resort to rule 19 is thus made possible, exposing the incumbent to the risk of being terminated arbitrarily on 'hire and fire rule'. In order to give effect to the above discussed rules, contained in the Law Department Manual, minimum security of tenure has to be assured to the competent and able lawyers who happen to be appointed to the offices and they be not thrown at the mercy of the Government or whims and choice of the persons of the Law Ministry and its Department. Rule 19 permitting termination of term of an incumbent by giving him one month's notice and without assigning any reason cannot be read to mean that a right is reserved with the Government thereby to dispense with an appointee without existence of any reason. Such arbitrary exercise of power would be violation of rule of law and would be detrimental to the administration of justice. The appointment of competent lawyers for representing and defending the state in civil and criminal matters is must for efficient administration of justice. Such arbitrary exercise of power would be violation of rule of law and would be detrimental to the administration of justice. The appointment of competent lawyers for representing and defending the state in civil and criminal matters is must for efficient administration of justice. In order that the talented and competent members of the legal profession arc attracted to accept the assignments as Government Pleaders/Public Prosecutors, it is necessary that Rules 17 and 18 governing initial period of probation followed by confirmation and minimum three years appointment have to be rigorously followed, otherwise no self-respecting and honourable member of the profession would be willing to accept the assignment and thereby the entire machinery of dispensation of justice in law courts would be seriously hampered. 33. The manner in which the appointments were made in the cases before us, shows that the Law Department Manual, which may be in the nature of excecutive instructions, has not at all been adhered to, leading to the resentment and case of action in these petitions. 34. I also consider it necessary to add a few words with regard to the Law Department files which were disclosed to this court and have been delved into and relied heavily by my learned brother Tamaskar, J. in his opinion for up-holding the action of the State. The Advocate General was candid enough in stating that before substituting the present incumbent by new appointees, on the basis of the panels received from District Magistrates, District & Sessions Judges, the reports regarding the work and conduct of present incumbents were called and received. There were against some incumbents adverse reports about their competence and integrity. The Advocate General further stated that the contents of the Secretariat files have neither been mentioned in the return nor copies thereof have been annexed with it, purposely to avoid issues being raised about the petitoners' character and conduct and to be made the subject matter of a decision by this Court. The reason being that even if such incumbents lose the offices, they are all honourable members of Bar and have a right to continue with their private practice in law. 35. The reason being that even if such incumbents lose the offices, they are all honourable members of Bar and have a right to continue with their private practice in law. 35. The learned counsel appearing for the petitioners, however, opposed the Secretariat files being disclosed to the Court for perusal and objected to their production or grant of any privilege against their disclosure to the petitioners, by submitting that if such adverse material is going to be taken into consideration, the same must be disclosed to the petitioners as well, so as to afford them opportunity to controvert and make their own comments. Learned Brother Tamaskar, J. has gone through those tiles and has made referance to their contents only for a limited purpose to hold that proper scrutiny of the work of present incumbents was made before they were substituted by new appointees. He has, however not touched the validity of the objection raised on behalf of the petitioners with regard to the privilege claimed against disclosure of such files to the (sic)ners. In order to decide the said objection, as I have commented above. one has to see the nature of the office and the right of the petitioners to such office. The office of the Government Pleader/Public Prosecutor is not a service but an engagement. The incumbent to the office has no right to any post or even to that office and there is no element of permanancy or continuity about it becasue it is an engagement based on mutual trust and confidence. To deprive a person of such office, the authority which engages him, alone is entitled to consider the report about his work and conduct and act upon it. Its disclosure to the incumbent concerned is not necessary. It is for the person who engages an expert to take a decision whether to continue to engage him for his good work or to dis-engage him for his unsatisfactory performance or loss of confidence in him. The person engaged for professional service cannot insist or compel the other party to engage him. It is, therefore, not necessary to have disclosed all adverse remarks or adverse reports to such concerned incumbents, whose names were received from the District Magistrates/District & Sessions Judges, before taking decision to substitute them by new appointees. The person engaged for professional service cannot insist or compel the other party to engage him. It is, therefore, not necessary to have disclosed all adverse remarks or adverse reports to such concerned incumbents, whose names were received from the District Magistrates/District & Sessions Judges, before taking decision to substitute them by new appointees. The present incumbents to the office or the substitutes in their places can claim no right to that office and to any fixed tenure. It was, therefore, not necessary to give them any show cause notice or hearing or disclose to them the contents of secretariat files containing the reports received about their work and performance. I rely on the following passage of the Supreme Court in Ku. Shrilekha's case (supra): - 13. The learned Additional Advocate General contended that................The other part of cl. 3 which enables the Government to terminate the appointment 'at any time without assigning any cause'... can also not be considered in the manner, suggested by the learned Additional Advocate General. The expression 'at any time' merely means that the termination may be made even during the subsistence of the term of appointment and 'without assigning any cause' means without communicating any case to the appointee whose appointment is terminated. However, 'without assigning any cause' it not to be equated with 'without existence of any cause'. It merely means that the reason for which the termination is made need not to be assigned or commnicated to the appointee' The objection taken on behalf of the petitioners to the disclosure of the files to the Court without disclosing the same to the petitioners, therefore, cannot be sustained. 36. A few words are necessary so far as the assistance sought to be taken by the petitioners from the contents of Rules 17, 18 and 19 of the Law Department Manual is concerned. It has to be noticed that in none of the appointments strict adherence has been made to the above provisions of the Law Department Manual. The Law Department Manual is not a statutory piece of document but is only in the nature of executive instructions and can have no binding force of law. That docs not mean that the provisions contained therein are to be always followed in breach. The Law Department Manual is not a statutory piece of document but is only in the nature of executive instructions and can have no binding force of law. That docs not mean that the provisions contained therein are to be always followed in breach. A deviation therefrom in individual cases, however, does not amount to infraction of any provision of law so as to entitle the petitioners to claim any writ on the basis thereof. The argument of the learned counsel for the petitioner based on rule 17(1) of the Law Department Manual, therefore, cannot be accepted that some of the present incumbents being on probation for a period of one year, their services cannot be dispensed with although there were unsatisfactory reports against them. 37. Having thus construed the above Rules 15 to 19 of the Law Department Manual, I do not find that any relief can be granted to the petitioners. In these cases, the newly formed Government headed by the Bhartiya Janata Party had allowed extension to all the existing incumbents and took a decision to invite fresh panels for appointment to the posts of Government Pleaders/Public Prosecutors. Each individual case was duly scrutinized and even the work and conduct of the existing incumbents were considered on the basis of their reports. The action against such incumbents, who were not included in the fresh panels by terminating their services under Rule 19, does not suffer from any legal or constitutional infirmity and the petitioners can get no mandamus or writ to compel the Government to continue to engage them as Government Pleaders/Public Prosecutors. 38. For the above additional reasons, I respectfully concur with the views of my learned brother Tamaskar, J. that the petitioners have not been able to make out any case for grant of any relief to them.