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2003 DIGILAW 730 (ORI)

Bichitra Mohan Naik v. State of Orissa

2003-12-23

P.K.MISRA, P.K.MOHANTY

body2003
JUDGMENT CH. P. K. MISRA, J. — The petitioner is a practising advocate of Udala Bar. He has been practising since 1974. On 30.06.2001 an order was issued by the Government of Orissa in the Law Depart¬ment appointing Assistant Public Prosecutors for the district of Mayurbhanj copy of which is Annexure-1. The petitioner’s name found place at serial number 15 of the said order. Annexure-1 was addressed to the District Magistrate, Mayurbhanj, with an en¬dorsement to communicate the same to the persons concerned. It is alleged that the District Magistrate never communicated the order to the petitioner. However, by letter No. 369 dated 19.07.2001 (Annexure-2), the Public Prosecutor, Mayurbhanj, Baripada issued order of allotment of Courts to different Assistant Public Prose¬cutors and the petitioner was assigned the Court of S.D.J.M., Udala. But the said order, so far as assignment of duty to the petitioner was concerned, was withdrawn on 20.07.2001. The peti¬tioner has, therefore, approached this Court with a prayer to direct the District Magistrate, Mayurbhanj, Baripada (opp. party No. 2), to implement the Government Order dated 30.06.2001. 2. A counter affidavit has been filed on behalf of the opposite party No. 2 wherein it has been specifically averred that the name of the petitioner had not found place in the panel list submitted by the District and Sessions Judge, Mayurbhanj, Baripada. As such, the Law Department could not have appointed the petitioner as an Assistant Public Prosecutor. 3. The point for consideration is whether the Law Department on its won can appoint anybody as a Law Officer without the panel list submitted by the District Magistrate in consultation with the District and Sessions Judge or modify the panel list so submitted. In this connection, learned Additional Government Advocate draws our attention to Rule 5 of the Orissa Law Officers Rules, 1971 wherein it has been provided that for appointing a Law Officer, the District Magistrate shall draw up in consulta¬tion with the District and Sessions Judge a panel arranged in order of merit from amongst the legal practitioners of the dis¬trict who are willing to act as such and submit the same with his recommendation through the concerned Revenue Divisional Commis¬sioner to the Legal Remembrancer for orders of the State Govern¬ment. This position of law is not disputed. Since the petitioner’s name was not recommended by the District Magistrate for appoint¬ment as Assistant Public Prosecutor, as submitted by opp. This position of law is not disputed. Since the petitioner’s name was not recommended by the District Magistrate for appoint¬ment as Assistant Public Prosecutor, as submitted by opp. party No. 2 in his counter affidavit, he could not have been appointed as such, and no fault can be found with opp. party No. 2 in not communicating such order of appointment to the petitioner. 4. For the aforesaid reasons, the prayer of the petitioner to issue a writ to opposite party No. 2 for implementing the order dated 30.06.2001 of the State Government in the Law Depart¬ment is rejected. Consequently, the other prayers made do not sur¬vive. 5. In the result, the writ petition is dismissed. There would however, be no order as to costs. P. K. MOHANTY, J. I agree. Petition dismissed.