Sudhansu Sekhar Misra vs State and Others

S.N. Shankar, C.J.—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.

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.

For the correct decision of the issue the foremost question that needs to be examined is whether the Rules are statutory in nature of purely administrative directions.

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,

After hearing the learned Counsel for the parties we find force in the contention of the learned Advocate General. The Rules admittedly do not purport -to have been issued by the Governor in exercise of his powers under Article 309. At the end of the Rules the endorsement is:

By order of the Governor,

B.N. Misra

Legal Remembrancer and ex-officio Additional Secretary to Government.

But that alone is not sufficient to conclude that they were framed by the Governor under Article 309 This is because Article 166(1) of the Constitution requires that" All executive action of the Government of a Scale shall be expressed to be take in the name of the Governor, "If the Rules were purely administrative directions approved by the Governor, they would undoubtedly bear the endorsement referred to above. The endorsement by itself will not therefore conclusively show that they are statutory in the sense of being issued by the Governor under Article 309.

We have also gone through the Rules. Part-I of the Ruhs (consisting of Rules 1 to 4) is only general containing short tide, extent and application, commencement and definitions etc. for purposes of the Rules. Part II (Rules 5 to 12) deals with appointment of Law Officers which term includes the public prosecutor and Government pleader. Part III (Rules 13 to 15) deals with the duties of Law Officers, and Part IV (Rules 16 to 33) deals with the remuneration payable to Law Officers. Part-V is miscellaneous. They are basically procedural in their nature providing the guidelines for appointment of the Law Officers, the mode in which they would work and the remuneration that they would be entitled to.

These features are strong indications of their being non-statutory. In B.N. Nagarajan v. State of Mysore AIR 1966 S.C 1941 a somewhat similar situation arose before the Supreme Court. The question was in relation to Mysore Public Service Commission (Functions) Rules, 1937. The Rules did not state that they were made under Article 309 of the Constitution. They dealt with the functions of the commission, rather than laying down rules regarding recruitment to service, and these two features weighted with the Court to hold that they were not statutory, but administrative rules. On page 1944 of the Report the Court said,

In our opinion, these rules are not rules made under Article 309. First, the rules do not expressly say so, and secondly, the rules are dealing with the functions of the commission rather than with laying down the rules regarding recruitment to services or posts."

It would also be relevant in this context to notice that the law officer appointed under the Rules still remains an advocate of the Court even after appointment. The relationship between him and the State after appointment continues to be that of a counsel and a client. The relationship of master and servant is not brought about by this appointment. The appointee is engaged on certain terms to do duties assigned to him. In other words his appointment by the State therefore is not an appointment to a post. This view finds support by the decision in State v. Bhola Nath AIR 1071 All. 460. In this case appointments of three Government Advocates were challenged on the ground that the same were made in violation of Article 16(1) of the Constitution inasmuch as no advertisement or notice was issued before making the appointments inviting applications from eligible members of the Bar. The writ Petitioners were allowed by the learned single Judge, but on appeal the contention was not accepted. In para 14 while dealing with the nature of appointment of law officer the Division Bench of the Court said,

I, It must be-remembered that, even after appointment as a law officer, the Advocate so appointed continues in the legal profession and appears as an Advocate before the High Court on behalf of the State. The relationship between him and the State still essentially that of counsel and client.

In Balakrushna Sahu v. Executive Engineer, G.E.D. 1974 (1) C.W.R. 447, the question arose in slightly different context. The contention of the State was that in a dispute between the management and the workmen before the Labour Court the Government Pleader was competent to appear for the management as he was an officer of the Government. The Court, after noticing decisions on the subject, said,

All the judicial pronouncements noticed above emphasise that even in spite of the fact that a Government pleader or a Government Advocate is appointed by the State, so far as the duties to be performed by him are concerned, they are the same as are required to be performed by a legal practitioner and in spite of the appointment the relationship between the State and either the Government Pleader or the Government Advocate is the same as between a client and his counsel.

If such an appointment is not an appointment to a post, the rule making power conferred by Article 309 of the Constitution which empowers the framing of the Rules in regard to "posts in connection with the affairs of the Union or of any State" will not be attracted. It IS not possible therefore to relate these rules to Article 309 at all.

Even if for the sake of argument it be assumed that such Rules could be framed under Article 309, the Rules like the present cannot be presumed to have been framed under Article 309 unless it is 50 shown positively. The executive power vested in the Governor by Article 154(1) of the Constitution embraces within itself the power to frame administrative rules even in cases where the subject on which a Rule is framed is covered by Article 309. In Amarjit Singh v. State of Punjab 107. (I) S.L.R. 171 the State Government issued a memorandum laying down how the inter se seniority of, officers belonging to two integrated services should be determined. This was a matter on which Rules under Article 309, could be framed, but the Supreme Court referring to B.N. Nagarajan v. State of Mysore1 and Sant Ram Sharma v. State of Rajasthan (1968) I.S.C.R. III said,

...it is now wen settled by several decisions of this Court that where no statutory rules are made regulating recruitment or conditions of service, the State Government always can in exercise of its executive power issue administrative instructions providing for recruitment and laying down conditions of service.

In Radhakrishna v. State AIR 1068 A.P. 350 the question whether a particular Government order could be treated as rule made under Article 309 was considered and guidelines were indicated. It was observed that merely because a Government order can be traced to a statutory power under which rules could have been made, (the Petitioner in that case claimed promotion on the has is of ratio prescribed in the order) it cannot be said that the Government order is law and can be enforced in a Court of law. The source of the power does not affect the character of the Government order issued. It is from the Government order itself that one has to find out whether the Government order has been issued as a rule under Article 309. Whether the Government order is law or an administrative Instruction, the Court said, "must be determined in view of the circumstances of each case.

In the instant case after the learned Advocate General had concluded his argument, an application for production of certain documents was moved on behalf of the Petitioner. The learned Advocate General placed before us the entire file relating to the framing of these rules. The application was therefore not pressed and accordingly dismissed. The file produced before us showed that the Rules were not framed by the Governor in exercise of his power under Article 309.

Before the framing of these Rules the Bihar and Orissa Practice and Procedure Manual was in force in the State. It was conceded before-us that this was not statutory Manual, but purely administrative instructions. The file contained a memorandum signed by Additional Joint Secretary to government of Orissa, Law Department, in which he stated that the question of revision of rules of the Bihar and Orissa Practice and Procedure Manual was under consideration of Government for a long time past and that after examining the broad schemes of the rules on the subject in force in different States it had been considered suitable to replace the Bihar and Orissa Practice and Procedure Manual by the fresh rules instead of incorporating piecemeal amendment and that is how the draft of these fresh Rules made into being. The memorandum recommended that the draft rules be placed before the cabinet for favour of approval. But it appears that the ministry thereafter left office and they were never placed before the cabinet. In these circumstances they were placed before the Governor and he approved them. There can therefore be no doubt that the Governor never invoked his powers under Article 309 of the constitution in framing these Rules as indeed for reasons we have already stated the same could not have been invoked because the subject was not covered by Article 309. In our view therefore these rules are purely administrative and have no legal sanction.

The learned Counsel for the Petitioner drew our attention to Mohambarm v. Jayavelu A.I.R 1970 Mad. 63, where it was held that the office of Public Prosecutor was a public office involving duties of public nature and of vital interest to the public so that appointment of a Public Prosecutor was not just like the engagement of an Advocate and that the Madras High Court Criminal Rules of Practice and Circular Orders, 1958, were statutory rules and contravention of Rule 45 of those rules was fatal to the appointment of the Public Prosecutor. The learned Counsel contended that the decision is an authority for the proposition that such. Rules could be framed under Article 309. It would however be'' seen that in the case the question as to whether the appointment of a public prosecutor was an appointment to a "post in connection with the affairs of the State" within the meaning of Article 309 of the Constitution was never raised and considered by the Court. ''" The Court, on the other hand, found that ever since 1895 the procedure relating to appointment of Public Prosecutor in that Court was treated as relating to practice and procedure of the Court. The Court also found that the Governor of Madras had approved the rules forwarded by the High Court not only in exercise of his powers conferred under Article 227 of the Constitution but also under "all enabling powers". The case was heard and decided on this basis. In The State of Orissa Vs. Sudhansu Sekhar Misra and Others, , the Supreme Court gave approval the dictum of Halsbury L.C. in Quinn v. Leathem 1901 A C. 495, that every Judgment must be read as applicable to the particular facts proved or assumed to be proved and the generality of the expressions which may be found there are not intended to be expositions of the whole law but governed and qualified by the particular facts of the case in which such expressions are to be found. The case, It was also ruled, was only an authority for what it actually decided and it could be quoted for a proposition that may seem to follow logically from it. This decision therefore cannot be said to be authority for the view that the Rules relating to appointment of Law Officers to represent the Government before Court are covered by the ambit of rule making power under Article 309.

Mr. Swain then argued that even as administrative directions the Rules are binding on the State Government which issued them. In support of this contention he placed reliance on Union of India v. K.P. Joseph AIR 1979 S.C. 303. In this case the effect of an office order called "Office Memorandum" No. 2(54)58/5801/D(Civil) providing for certain benefits to ex-military personnel on reemployment on the basis of their length of actual military service was in question and even though it was an administrative order the Court held that it was enforceable. This was held to be statutory because the order which related to service conditions was found to confer a right on the Petitioner. In para 11 of the report Mr. Justice Mathew speaking for the Court clearly said:

We should not be understood as laying down any general proposition on this question. But we think that the order in question conferred upon the first Respondent the right to have his pay fixed in the manner specified in the order and that was part of the conditions of his Service. We see no reason why the Court should not enforce that right.

The learned Counsel also referred to K.M. Joseph, Trivandrum and Another Vs. State of Kerala and Another, , wherein an executive rule prescribing qualifications for and the mode of recruitment to the posts of Principals in Government Colleges was held to be binding. This was also a case in regard to service under the State and the Court found that the rule in question conferred a right to be considered for appointment to the post.

Reference was next made to Brojendra Kumar Saha Vs. Union of India (UOI), , where a notification providing for refund of salt duty was held to be valid and binding on Union of India. In this case the notification was found on the construction of Sections 37 and 38 of the Central Excise and Salt Act, 1944, to have a binding force. This was because these provisions were held to be ex-powering the Central Government to make rules for refund of duty paid on salt subsequently exempted and the notification read with the provisions of the Act and the Rules framed thereunder was held to have the statutory force to confer a right.

The position of the Rules in the instant case is wholly different. These Rules neither confer any right on the Petitioner or anyone else to be appointed as a Government pleader and Public Prosecutor, nor has the Governor issued them in exercise of his statutory powers under Article 309 of the Constitution. They cannot therefore be held to be statutory. They are purely administrative directions.

Reference was also made by the learned Counsel to Section 492 of the Criminal Procedure Code, 1898. The section provides that the Central Government or the State Government may appoint, generally, or in any case, or for any specified class of cases, in any local area, one or more officers to be called Public Prosecutors. This provision does not advance the case of the Petitioner. It does not envisage any rules to be framed by the State Government.

The position may be different under the new Code of Criminal Procedure in so far as consultation is concerned, because Sub-section (1) of Section 24 provides mandatory consultation with the High Court in cases falling under this Sub-section and Sub-section (3) likewise provides for mandatory consultation with the Session Judge for appointment of Public Prosecutor or Additional Public Prosecutor for the district. Nothing said herein is therefore to apply to appointments under the new Code.

Heavy reliance was placed by the learned Counsel for the Petitioner on A. Ramachandran Vs. A. Alagiriswami, Govt. Pleader High Court, Madras and Another, , and A. Mohambaram Vs. M.A. Jayavelu and Others, . In both these cases appointments to the office of Government pleader and Public Prosecutor respectively were challenged. In the former the Court found that the appointment was not bonafide but because the rules under which the appointment was made had no statutory force but were only declarations by the Government of their intention and line of conduct, no relief could therefore granted and the writ of quo-warranto was refused. In the latter, as stated earlier the Court proceeded on the view that the Rules in question were statutory and therefore Rule 45 of those Rules had a statutory force so that the decision of the State could be predictable and in this view quashed the appointment. The former is of no assistance to the Petitioner and the latter also cannot be brought to his aid

because we find that the Rules in the instant case are not statutory. It would however be seen that in the latter decision in para 22 on page 75 of the Report the Court noticed the effect of Standing Orders relating to the appointment of law offices in the mofussil and finding that they had no statutory force said on the authority of the previous decision of the Court in A. Ramachandran Vs. A. Alagiriswami, Govt. Pleader High Court, Madras and Another, , that,

...such Standing Orders of the Government regarding appointment to an office are devoid of statutory force and remain merely as declarations no doubt public and explicit declarations - but still only declarations by Government of their intention and line of conduct. Such Standing Orders have no legal sanction behind them and the, Government may, in suitable cases in the exercise of discretion relax the rules.

The ratio of these cases instead of supporting the Petitioner clearly shows that be has no case in law for interference by the Court.

This is sufficient to dispose of the petition but it would be appropriate to notice Rule 5 of the Rules in relation to the grievance of the Petitioner that the provisions of the same were not complied with. Relevant part of this Rule reads as under:

5(1) In appointing a Law Officer, the District Magistrate shall craw up in consultation with the District and Sessions Judge a panel of five names arranged in order of merit from amongst the legal practitioners of the district who are willing to act as such and submit the same with his recommendations through the concerned Revenue Divisional Commissioner, to the Legal Remembrancer for the orders of the State Government.

(2) The District Magistrate shall, while making recommendation to the State Government for appointment of Law Officers, furnish the following particulars, namely

(i) Qualification,

(ii) Age,

(iii) Number of years of practice at the Bar,

(iv) Field of specialisation,

(v) Reliability,

(vi) Efficiency, and

(vii) An appraisal by the District and Sessions Judge of the nature and quality of advocacy, general repute and personality.

x x x

Factually what happened in this case was that the District and Sessions Judge, Bolangir recommended the name of the Petitioner and four other persons for appointment as Government Pleader and Public Prosecutor. The District Magistrate forwarded the'' names to the Commissioner, Northern Division. Petitioner had already completed two terms as Government Pleader and Public Prosecutor. The Commissioner therefore wrote back to the District Magistrate that he had suggested to the Government that more than two consecutive terms should not be allowed to any advocate as Government Pleader and that this matter was under consideration of the Government. The letter stated,

In case Government accepts this suggestion of mine, we would require one more name in our panel. As I understood from you, Government have appointed a Special Prosecutor for the conduct of the Bhogra conversion cases, you may, therefore, send me his particulars for inclusion in the list of Advocates from whom Government may make a selection.

The District Magistrate thereupon requested the District and Sessions Judge concerned to send him particulars in regard to the Special Prosecutor referred to in the letter of the Commissioner, who was Shri N. Misra, opposite party No. 4. In his letter he also stated that the matter was urgent'' and the particulars be sent forthwith per bearer. The District and Sessions Judge in reply stated that he did not consider Shri N. Misra to b fit for appointment as Government Pleader and Public Prosecutor for the present, but also furnished the desired particulars. The District Magistrate in his turn forwarded the particulars to the Commissioner and the matter went up to the State leading to the impugned appointment of ''opposite party No. 4.

The grievance of the Petitioner is that the Revenue Divisional Commissioner had no business to ask for any particulars in addition to those of the first five persons sent by the District Magistrate that there was no valid panel under Rule 5 before the State Government as the names in the panel were 6 and not 5; and that there was no valid consultation with the District and Sessions Judge as required by Rule 5.

We see no merit in any of these contentions. Sub-rule (1) of Rule 5 provides that the District Magistrate after drawing up the panel in consultation with the District and Sessions Judge submit the same with his recommendations through the concerned Revenue Divisional Commissioner to the Legal Remembrancer for the orders of the State Government. Revenue Divisional Commissioner is an authority superior to District Magistrate. The purpose of routing the recommendations through the Revenue Divisional Commissioner is not an empty formality. Revenue Divisional Commissioner in the usual course is expected to look into them. In the instant case the Revenue Divisional Commissioner had suggested to the Government that no Government Pleader should be retained for more than two consecutive terms and when he found that in the panel forwarded to him there was such a name, there was nothing improper on his part to obtain an additional name to be considered by the State Government in case the suggestion made by him was accepted. No case of any personal malice or ill-will of the Revenue Divisional Commissioner against the Petitioner is made out. In fact the Revenue Divisional Commissioner has not even been-impleaded as a party to the writ petition. We, therefore, see nothing wrong or illegal 10 the Revenue Divisional Commissioner asking the. Collector to obtain particulars in respect of one other person whom the Government had already appointed for conduct of Bhogra conversion cases.

The grievance that there was no valid panel does not also bear examination. Rule 5 is an administrative rule. There was nothing to prevent the State Government from relaxing its requirements, See A. Mohambaram Vs. M.A. Jayavelu and Others, . The name of opposite party No. 4 came up for consideration for a justifiable reason and we are of the view that in the circumstances of this case no just exception can be taken to the same being included in the panel.

As for" consultation", it was not disputed that the final appointing authority under the Rules was the State Government. The consultation between the District Magistrate and the District and Sessions Judge envisaged in Rule 5 was only for the purpose of placing before the appointing authority the names of suitable legal practitioners, The District and Sessions Judge was brought into the picture because he was supposed to know about the various legal practitioners of a district who can be included in the panel, but his opinion as to the merits of any particular legal practitioner mentioned in the panel was not final and binding on the appointing authority. The provision of consultation did not give the right of final selection to the District and Sessions Judge. In Rollo v. Minister of Town Planning 1948 (I) All. ELR, Bucknill, L.J. cited with approval the observations of Mr. Justice Morris in an earlier decision where the expression "consultation" was commented upon. In that case consultation was mandatory. After stating that the holding of consultation with such local authorities as appear to the Minister to be concerned was an important statutory obligation, the learned Judge had said,

The Minister, with receptive mind, must by such consultation seek and welcome the aid and advice which those with local knowledge may be in a position to proffer in regard to a plan which the Magister has tentatively evolved.

The correspondence that passed between the District Magistrate and the District and Session Judge that we have referred to above to our mind is sufficient to constitute a consultation for purposes of Rule 5 of these Rules. It is therefore not correct to say that provisions of Rule 5 of these Rules were not complied with to call for interference by this Court. To sustain a quo warranto writ the Court has to be satisfied not only that the officer in question is a substantive public officer but also that the incumbent is holding the post without legal authority i. e. in appointing him Government has contravened statutory provisions and binding Rules. We find no such thing has been made out in the instant case.

For these reasons there is no merit in this petition and the same is accordingly dismissed, but without any order as to costs.

P. K Mohanti, J.

I agree.