District Osmanabad vs The State Of Maharashtra
2009 Latest Caselaw 89 Bom

                                       1




                                                                       
          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD




                                               
                      Writ Petition No.4822 Of 2009.

     *      Jayant S/o Shivajirao Jagdale          ]




                                              
            Age 40 years,                          ]
            Occupation : Advocate                  ]
            R/o Samrat Ashok Colony,               ]
            Vidyanagar, Osmanabad                  ]




                                 
            District Osmanabad.                    ]        ... Petitioner.
                   
                 Versus

     1)     The State of Maharashtra          ]
                  
            Through the Principal             ]
            Secretary, Law and                ]
            Judiciary Department,             ]
            Mantralaya, Mumbai.               ]
      


                                              ]
     2)     Shashikant S/o Panditrao Nimbalker]
   



            Age 58 years,                     ]
            Occupation : Advocate,            ]
            R/o C/o Office of the District    ]





            Government Pleader,               ]
            District Court,                   ]
            District Osmanabad.               ]
                                              ]
     3)     Vishwas S/o Kashinath Jadhav,     ]





            Age 54 years,                     ]
            Occupation : Ex District Judge    ]
            Osmanabad, presently working      ]
            as Registrar (Inspection I)       ]
            High Court of Bombay,             ]
            Fort, Mumbai.                     ]          ... Respondents.

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     Shri. P.R. Patil, Advocate for the petitioner.
     Shri. V.N. Damle, Counsel for respondent No.1.
     Shri. N.B. Khandare, Government Pleader for State.




                                               
     Shri. R.N. Dhorde, Advocate for respondent No.2.
     Shri. V.J. Dixit, Senior Advocate for respondent No.3.




                                              
                                    --------

                                 CORAM: NARESH H PATIL &
                                        K.U. CHANDIWAL, JJ.

Judgment reserved on :

                    ig                 2nd December 2009
     Judgment pronounced on :          15th December 2009

     JUDGMENT :(Per Naresh H Patil, J.) :
                  

     1)          Rule returnable forthwith. By consent of the parties the
      


     matter was heard finally.
   



     2)          The petitioner, an Advocate practicing at District Court,

Osmanabad, prayed for issuance of writ, order or direction for

setting aside the impugned order dated 9th June 2009 issued by the

Department of Law and Judiciary, State of Maharashtra appointing

respondent No.2 - Mr. Shashikant Panditrao Nimbalkar as District

Government Pleader and Public Prosecutor for Osmanabad District

and for setting aside the order passed by the Law and Judiciary

Department dated 22nd May 2009 staying the effect and operation of

the order appointing the petitioner as District Government Pleader

and Public Prosecutor of District Court Osmanabad. The petitioner

further prayed for writ of mandamus for implementation of the

notification dated 22nd May 2009 wherein the petitioner was

appointed as District Government Pleader and Public Prosecutor.

The petitioner amended the petition during the course of hearing and

added consequential prayer clauses and further prayed for setting

aside the order dated 6-7-2009 by which the State Government had

cancelled the appointment of the petitioner as District Government

Pleader and Public Prosecutor with effect from 22nd May 2009.

3) In substance, the petitioner's contention is that the

respondent No.2 Mr. Nimbalkar was appointed as District

Government Pleader and Public Prosecutor initially by a notification

dated 28-10-1992 and since last 17 years respondent No.2 is

continued as District Government Pleader and Public Prosecutor. It

is alleged by the petitioner that during the course of said tenure as

District Government Pleader and Public Prosecutor there were

several complaints made against the functioning of the respondent

No.2.

4) On 7th January 2009 the Law and Judiciary Department

directed the Collector Osmanabad to issue a notification for

preparing a panel for appointment to the post of District Government

Pleader and Public Prosecutor. It is contended that on 7-1-2009 a

notification was issued by the Collector Osmanabad inviting

applications from eligible advocates. The petitioner submitted his

application to the Collector on 22nd January 2009. The respondent

No.2 had also applied for the said post. The Collector had forwarded

a panel of four Advocates to the Law and Judiciary Department

which was received by the said department on 9th March 2009.

Amongst the four names the Collector had recommended the

petitioner and respondent No.2. The respondent No.2 was at Sr.No.1

in the list of the Collector. The said list of four names was

forwarded by the Collector after seeking opinion of the District and

Sessions Judge Osmanabad which was forwarded to the Collector on

11th February 2009. The District and Sessions Judge recommended

the name of respondent No.2 Mr. Nimbalkar and endorsed that

respondent No.2 has deep knowledge of law and as an Advocate in

Court work he is prompt, honest and hard worker. It was further

observed by the District Judge that respondent No.2 has good

relations with the Bar Association; the Judges and the staff of the

Court. He defends the State Government honestly. Apart from this

endorsement the District Judge recommended names of six more

Advocates. The case of the petitioner is that in view of the provisions

of Section 24(3) of the Code of Criminal Procedure, 1973 read with

Section 2 of the Code of Civil Procedure 1908 and Rule 13 of the

Maharashtra Law Officers (Appointment, Conditions of Service and

Remuneration) Rules 1984 (for short "the Rules of 1984"), the

petitioner was appointed as District Government Pleader and Public

Prosecutor for a period of three years. The order of appointment was

passed by order and in the name of the Governor of Maharashtra. A

notification was sent for publication in the Government Gazette

which was even published in the Government Gazette on 9th July

2009. The petitioner's contention is that on the same day the Law

and Judiciary Department of the Government of Maharashtra stayed

the appointment of the petitioner. The petitioner sought further

information on 15-6-2009 under the Right to Information Act 2005

which was provided to him.

5) The grievance of the petitioner is that after filing of this

writ petition on 1st July 2009, the petitioner received an order dated

6th July 2009 wherein it was informed to him that his appointment

was cancelled with effect from 20th May 2009 on the ground that the

District Judge Osmanabad did not recommend the name of the

petitioner.

6) As regards the respondent No.2, the petitioner has raised

serious allegations and contended that complaints were received by

the State Government regarding functioning of respondent No.2 as

District Government Pleader and Public Prosecutor. An issue was

also raised by Professor Sharad Patil, Member of Legislative Council

alleging that respondent No.2 was behaving in autocratic manner.

The complaint was also addressed by a farmer to the then Hon'ble

the Chief Minister in the year 2006. The petitioner contended that the

Additional Secretary and Legal Adviser, Law and Judiciary

Department was directed to hold a preliminary inquiry into the

allegations made against respondent No.2. An enquiry was

accordingly conducted and it was opined that some of the allegations

made against respondent No.2 were correct and there was evidence

of negligence in defending the state in the cases contested before the

Court. The Inquiry Officer opined that it was likely that the

Government would suffer huge financial losses and further opined

that the charge Nos.2 and 3 therein leveled against respondent No.2

are correct and, therefore, a preliminary report was submitted. The

concerned Department further put up notes for terminating the

services of respondent No.2 by giving opinion that the allegations

made against respondent No.2 could be examined under the

Prevention of Corruption laws. The State Government, according to

the petitioner, was convinced that the appointment of the respondent

No.2 is required to be cancelled.

7) According to the petitioner, all the facts and

circumstances emerging out of the material placed before this Court

indicate only conclusion that the State Government by adopting a

highly unreasonable stand cancelled the appointment of the

petitioner and appointed respondent No.2.

8) The learned counsel Shri. P.R. Patil appearing for the

petitioner submitted that the enquiry report was submitted by the

concerned officer of the Law and Judiciary Department and on

16-12-2008 the Law and Judiciary Department by putting written

notes opined that the charges leveled against respondent No.2 are of

serious nature and the services of the respondent No.2 are to be

terminated immediately and the allegations made against respondent

No.2 be enquired into under the Prevention of Corruption laws.

Accordingly by a communication dated 2-1-2009 the State

Government decided to call for fresh panel of lawyers and thereafter

the process stated and the petitioner came to be appointed as District

Government Pleader and Public Prosecutor.

9) The first and foremost objection raised by the learned

counsel for the petitioner is that vide Maharashtra Act No.34 of

1981 the State of Maharashtra deleted the provisions of consultation

with the High Court and the Sessions Judge for the purposes of

appointment of Public Prosecutors or Additional Public Prosecutors.

In view of the same, the cancellation of the appointment order of the

petitioner passed by the State Government on the ground that the

District and Sessions Judge did not recommend the name of the

petitioner is against the provisions of law and the decision, therefore,

suffers from total non application of mind. In the submission of the

counsel, there were allegations made against the conduct of the

respondent No.2 as District Government Pleader and Public

Prosecutor which were enquired into and in a preliminary enquiry

report some of the allegations were found to be serious and having

considered the same, the State Government had endorsed that the

services of the respondent No.2 shall be dispensed with at the

earliest. In spite of the same the respondent No.2 was chosen by the

State Government in undue haste which speaks volumes for itself.

The learned counsel Shri. P.R. Patil submitted that the District

Government Counsel represents the interests of the general public

before the Court. The Government Pleader must possess character,

competence and sufficient experience and standing at the Bar. They

perform public duty and therefore public element is involved in the

functioning of the Government Pleaders may be of the District Court

or the High Court. In the submission of the counsel, reliance placed

by the State on the judgment in the case of Neelima Vartak v. State

of Maharashtra 2005 (4) All MNR 495 is misplaced and not

applicable to the facts of this case. The said judgment is required to

be held as per incuriam, according to the counsel. The learned

counsel drew attention of the Court to the stand adopted by the State

in the case of Vilas Jagannath Dhorde Patil vs. State of

Maharashtra - Writ Petition No.1507 of 2009 decided by a

Division Bench of the Bombay High Court, Bench at Aurangabad

(Coram: P.V. Hardas and R.K. Deshpande, JJ.) and based on the

same the counsel submits that the State now cannot take a somersault

as in the case of Vilas Dhorde Patil it was argued on behalf of the

State that the requirement of the primacy of the opinion or the

consultation with the District and Sessions Judge in the matter of

selection and appointment of District Government Pleader and

Public Prosecutor has been done away by way of amendment made

to the Section 24(1) and (4) of the Cr.P.C. with effect from 20th May

1981 and now to read such primacy again in amended provision

would defeat the object of the said enactment. The counsel submits

that it was argued in case of Vilas Dhorde Patil's case that the view

taken by the Division Bench in Vartak's case is contrary to the

intendment of the legislature.

10) The respondent No.1 filed affidavit-in-reply through Mr.

Vasantrao Rajaram Patil, Joint Secretary, Law and Judiciary

Department. The deponent contended in substance that the panel

was called from the Collector for appointment of District

Government Pleader Osmanabad which recommended four names

out of which the District Judge had recommended only two names

namely respondent No.2 Mr. Nimbalkar and one Mr. Virsangappa

Alange. In view of the Government Resolution dated 15 th December

2003 the matter was put up before the High Power Committee

consisting of the Advocate General of Maharashtra and the Principal

Secretary, Law and Judiciary Department. This Committee is

entrusted with the work of screening the applications and submitting

a list of applicants to the Minister of State and Cabinet Minister of

Law and Judiciary Department. And thereafter the file is submitted

to the Hon'ble the Chief Minister for final decision. The deponent

stated that the Principal Secretary of Law and Judiciary Department

put up the file before the Committee. The High Power Committee

recorded its comments in the minutes dated 6-5-2009 which were

placed before the Government. The Officer on Special Duty had

directed that the appointment of the petitioner be stayed. The record

with the endorsement dated 22-5-2009 made by the Principal

Secretary and Legal Remembrancer was put up before the Hon'ble

Law Minister on the same day, who recorded that it appears that the

name of the petitioner was not recommended by the District and

Sessions Judge and hence the appointment of petitioner Mr. Jagdale

be revoked. The deponent stated that the Hon'ble Minister of Law

had directed staying the appointment order of the petitioner.

11) On behalf of the State, the Special Counsel Shri. V.N.

Damle submitted that the Law Minister had opined in favour of

respondent No.2 after it was brought to the notice that the name of

the petitioner was not recommended by the District and Sessions

Judge Osmanabad though his name was in the panel of four names

forwarded by the Collector. No sooner it was realized, the State

authorities had stayed the appointment of the petitioner on the same

day and thereafter communicated the cancellation of his appointment

order. In the submission of the counsel the State had to take this

decision in view of the law laid down in the case of Neelima Vartak

(cited supra). As the State was following the policy of consultation

with the District and Sessions Judges through the Collectors of the

respective districts. It was noticed that the said requirement was

lacking in the case of the petitioner and, therefore, the Government

of Maharashtra adopted the stand which was reflected through the

statement made by the learned Advocate General in the case of

Neelima Vartak. Even today, according to Shri. Damle, the

Government maintained the said stand. The ultimate decision of

selecting names from panel is with the Government even though the

High Power Committee is assigned with the work to forward names

to the Government after screening. In other words the opinion of any

of the authorities or persons in the process is not binding on the

Government.

12) The learned counsel Shri. Damle submitted that the

petitioner has no locus standi neither any vested right to question

appointment of respondent No.2 and seek appointment of the

petitioner as the Government Pleader. In such matter the

Government discharge its administrative function, therefore judicial

review of the administrative decision is not permissible unless it is

backed by impropriety and irrational in nature or against the specific

provisions of law. The petitioner never assumed the charge as

District Government Pleader under the orders of the State

Government which was stayed on the same day. The learned counsel

submitted that as the Government is making its stand clear regarding

following the stand adopted by the State in the case of Vartak, the

reference to the judgment in the case of Vilas Dhorde Patil is not

relevant for the purpose. In the opinion of the counsel the judgment

in the case of Vartak could not be declared as per incuriam as the

observations of the Court were based on the reported judgment of

the Apex Court in the case of State of U.P. and another v. Johri

Mal, (2004) 4 SCC 714. The learned counsel Shri. Damle

submitted that the Government would certainly take cognizance of

the preliminary enquiry report submitted by the responsible officers

of the Law and Judiciary Department against the respondent No.2

and appropriate steps and decision will be taken in that regard at the

earliest.

13) The learned counsel Shri. Ramesh Dhorde appearing for

the respondent No.2 refuted the allegations made by the petitioner.

Affidavit in reply was filed by the respondent No.2. the learned

counsel submitted that the petitioner has no vested right to question

the decision of the Government. The observations of the Apex Court

in the case of Johri Mal and the case of Vartak in respect of

consultation are accepted and implemented by the Government of

Maharashtra since long and even today they are being implemented

even after deletion of the provisions from Section 24 of the Cr.P.C.

Therefore, reliance placed on the arguments advanced in the case of

Vilas Dhorde Patil would not have any bearing now as the

petitioner's name was never recommended by the District and

Sessions Judge. The Government rightly cancelled the order of

appointment of the petitioner.

14) We are of the firm opinion that the Government

Pleaders, may be of District Courts or the High Court are the officers

of the Court but they also represent the State. They perform public

and statutory duties and the Courts repose confidence in them. They

represent interest of the general public before the Court. They must,

therefore, have character, competence and sufficient experience and

dignified standing at the Bar. There cannot be any dispute that only

meritorious and competent persons shall be appointed to these

offices. The public at large is concerned in the manner in which the

High Court and District Government Pleaders discharge their duties.

15) It is a matter of day to day experience in the High

Court or the District Courts in large number of cases the State is the

litigant in matters involving complicated questions of law, decisions

of which affect not only the interests of the State but of the public at

large. The issues which the Government Pleaders are supposed to

deal with are of variety in nature, they relate to civil criminal

constitutional in nature. As officer of the Court they not only defend

the State but at the same time assist the Court in discharge of their

duties and in aid of dispensation of justice fairly, fearlessly and in

transparent manner. Therefore, we may emphasise that the qualities

as mentioned above have to be first noticed in the person whom the

Government would be selecting its lawyers to represent them in

Courts.

16) Before proceeding further we may refer to the

observations of the Court made in this regard in the reported

judgments cite by the petitioner. before us.

In the case of Kumari Shrilekha Vidyarthi v. State of U.P.,

AIR 1991 SC 537 the Apex Court in paragraphs 17 and 20 observed

thus :

"17. We are, therefore, unable to accept the argument

of the learned Additional Advocate-General that the appointment of District Government Counsel by the State Government is only a professional engagement 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 terminated at any time at the sweet

will of the Government excluding judicial review. We have already indicated the presence of public element attached to the 'office' or 'post' of District Government Counsel of every category covered by the impugned

circular. This is sufficient to attract Article 14 of the Constitution and bring the question of validity of the impugned circular within the scope of judicial review."

"20. Even apart from the premise that the 'office' or 'post' of D.G.Cs. has a public element which alone is sufficient to attract the power of judicial review for testing validity of the impugned circular on the anvil of Art.14, we are also clearly of the view that this power is available even without that element on the premise that after the initial appointment, the matter is purely contractual. Applicability of Art.14 to all executive actions of the State being settled and for the same

reason its applicability at the threshold to the making of

a contract in exercise of the executive power being beyond dispute, can it be said that the State can thereafter cast off its personality and exercise unbridled

power unfettered by the requirements of Article 14 in the sphere of contractual matrers and claim to be governed therein only by private law principles applicable to private individuals whose rights flow only

from the terms of the contract without anything more? We have no hesitation in saying that the personality of the state, requiring regulation of its conduct in all spheres by requirements of Article 14, does not undergo

such a radical change after the making of a contract merely because some contractual rights accrue to the

other party in addition. It is not as if the requirements of Art.14 and contractual obligations are alien concepts, which cannot co-exist."

In the case of State of U.P. v. Johri Mal AIR 2004 SC 3800, the

Apex Court in paragraphs 21,75,86 and 88 has held thus :--:

"21. The provisions of the Code of Criminal Procedure which are statutory in nature govern the field. The State of Uttar Pradesh, however, for reasons best known to it amended sub-section (1) of Section 24 of the Code of Criminal Procedure as a result whereof, the state is not

required to consult the High Court before appointing a Public Prosecutor for the High Court. Similarly, sub- sections (4), (5) and (6) of Section 24 have also been deleted purported to be on the ground that similar provision exist in the Legal Remembrancer Manual. The Legal Remembrancer Manual is merely a compilation of executive orders and is not a 'law' within the meaning of Article 13 of the Constitution of India."

"75. The District Government Counsel represent the

States. They, thus, represent the interest of general public before a court of law. The Public Prosecutors while presenting the prosecution case have a duty to see

that innocent persons may not be convicted as well as an accused guilty of commission of crimes does not go unpunished. Maintenance of law and order in the society and, thus, to some extent maintenance of rule of

law which is the basic fibre for upholding the rule of democracy lies in their hands. The Government counsel, thus must have character, competence, sufficient experience as also standing at the Bar. The need for

employing meritorious and competent persons to keep the standard of the high offices cannot be minimized.

The holders of the post have a public duty to perform. Public element is, thus, involved therein."

"86. The age old tradition on the part of the States in appointing the District Government Counsel on the basis of the recommendations of the District Collector

in consultation with the District Judge is based on certain principles. Whereas the District Judge is

supposed to know the merit, competence and capability of the concerned lawyers for discharging their duties, the District Magistrate is supposed to know their conduct outside the Court vis-a-vis the victims of

offences, public officers, witnesses etc. The District Magistrate is also supposed to know about the conduct of the Government counsel as also their integrity."

"88. The State should bear in mind the dicta of this Court in Mundrika Prasad Singh (supra), as regard the necessity to consult the District Judge. While making appointments of District Government Counsel, therefore, the States should give primacy to the opinion of the District Judge. Such a course of action would demonstrate fairness and reasonableness of action and, furthermore, to a large extent the action of the State would not be dubbed as politically motivated or

otherwise arbitrary. As noticed herein above, there also

does not exist any rationale behind deletion of the provision relating to consultation with the High Court in the matter of appointment of the Public Prosecutors

in the High Court. The said provision being a salutory one it is expected that the State of U.P. either would suitably amend the same or despite deletion shall consult the High Court with a view to ensure fairness

in action."

In Neelima Sadanand Vartak v. State of Maharashtra, 2005

(4) ALL MR 495 a Division Bench of the Bombay High Court in

paragraphs 18 and 19 held thus:

"18. Mr. Kadam, learned Advocate General, on the other hand, pointed out that the process of selection

started with the District Magistrate advertising the post. This is done with the approval of the State Government

which is now the requirement after the Amendment in Section 24(4). Thereafter, the District Magistrate received the applications. He looked into their eligibility as per Rule 11 of the Maharashtra Law Officers Rules,

1984. Even in para 85 of Johri Mal's case (supra), this role has been preserved to him to look into their antecedent etc. Thereafter he called for the report of the District Judge which he received on 20th March, 2004 and then forwarded it to the government on 29th March

2004. He submitted that after the deletion of the words "in consultation with the Sessions Judge" from Section 24(4), all that was required was to look into the eligibility of the candidates which the District Magistrate has done. Mr. Kadam submitted that the decision in Johri Mal's case (supra) was rendered on 21st April 21004. By that date this process until forwarding the names to the Government was completed in the present case. Only the scrutiny was to be done by the

Advocate General and the Law Secretary and then the

Government was to take its decision which was taken on 1st June 2004. In his submissions, the decision in Johri Mal's case (supra) would operate prospectively, He

accepted that the State will have to follow this decision in future. However, as far as the present case is concerned, in his submission, the decision could not be applied. On the facts of the present case, he submitted

that the District Judge had been consulted and it could not be said that the State had ignored him. In his submission, it could not be said that the State had not shown him due respect and primacy that was expected.

"19. Mr. Kadam drew our attention to paras 40 and 41 in Johri Mal's case (supra) and submitted that even this judgment laid down that so long as in appointing

Counsel the procedure laid down under Cr.P.C. was followed and the reasonable or fair procedure was adopted, the Court will normally not interfere with the decision. The question as to whether the State is

satisfied with the performance of its Counsel or not is primarily a matter between it and the Counsel. He,

therefore, submitted that this is not a case for this Court to interfere."

The learned counsel for the petitioner also has placed reliance

on the reported judgments in State of U.P. v. U.P. State Law

Officers Association, AIR 1994 SC 1654 and State of Karnataka

v. All India Manufacturers Organisation, (2006)4 SCC 683.

17) The observations of the Apex Court in Johri Mal's

case and the stand adopted by the Government of Maharashtra that

the State will have to follow the decision in Johri Mal's case, we

need not dilate on the arguments advanced on behalf of the State in

the case of Vilas Dhorde Patil (cited supra). More so the practice of

consultation with the District Judge, according to the learned counsel

Shri. Damle, is continued since long and the State is determined to

go ahead with the said practice in tune with the judgment of the

Apex Court and the judgment of the Bombay High Court in Vartak's

case. There is no dispute on the point that the name of the petitioner

was not recommended by the District and Sessions Judge

Osmanabad.

18) The another issue raised by the petitioner is regarding

enquiry conducted in respect of respondent No.2 and based on the

report it was submitted that as the preliminary inquiry report raises a

serious question of integrity of respondent No.2 he is not a fit person

to be appointed as District Government Pleader. We do find that the

preliminary enquiry report filed in respect of the allegations made

against respondent No.2 is not favourable to the respondent No.2.

The notings made on the said report by the responsible officers of the

State speak for itself and demonstrates the seriousness of the issue.

We have recorded the submissions of the learned counsel Shri.

Damle that the State is duty bound to look into the charges /

complaints made against the respondent No.2 more particularly the

observations made by the officer in the preliminary inquiry report

submitted to the State and a decision in that regard would certainly

be taken.

19) We, therefore, observe that the earliest decision in this

regard shall be taken by the State and the appointment of the

respondent No.2 shall be tested on the touchstone of the principles

enunciated by the Apex Court and this Court in the judgments cited

supra.

20) We do find that the issue in respect of appointment of

Government Pleaders was not handled in the systematic and smooth

manner. Unnecessary haste in such matters is detrimental to the

interests of the State itself and to the public at large. Therefore,

abundant precaution is required to be shown by the State in

appointing the Government Pleaders or the Additional Government

Pleaders in the various Courts in the State. No person has a vested

right to claim the post of the Government Pleader. The law officers

are appointed by the State for a specific tenure and in the present

case in the appointment order of the petitioner on 20 th May 2009 the

Law and Judiciary Department had specifically mentioned in clause

3 of the order that the State reserved its right to withdraw, amend or

cancel the order. In case the State finds justifiable and sound ground

then the State has power to cancel the appointment. But we would

reiterate that such actions shall be in tune with the principles of

reasonableness and not arbitrary in nature.

21) The learned counsel Shri. Dhorde appearing for

respondent No.2 has placed reliance on the reported judgments in

(1) P. Venugopal v. Union of India, (2008) 5 SCC 1

(2) Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan, (1990) 1

SCC 305;

(3) Mahavir Singh v. Khiali Ram, (2009) 3 SCC 439.

We have perused the judgments cited supra.

22) In view of the stand adopted by the State Government

that the name of the petitioner was not recommended by the District

and Sessions Judge we find that the decision to cancel the

appointment of the petitioner could not be termed to be unreasonable

and arbitrary. We expect the State Government to take prompt and

appropriate decision in respect of the preliminary enquiry report

submitted in respect of the allegations made against respondent No.2

at the earliest on its own merits and keeping in view the observations

made by us, as above.

23) Considering the judgment delivered by the Apex Court

and the stand adopted by the State in the case of Neelima Vartak's

case and more particularly in view of public element attached to

discharge of the duties by the Government Pleaders of the High

Court and the District Courts we would suggest the State

Government to consider as to whether the provisions relating to

consultation with the High Court and the District Judge as prevailing

in the provisions of Section 24 of the Code of Criminal Procedure

prior to Amendment Act 34 of 1981 could be introduced again in the

said provisions of Section 24 of the Code of Criminal Procedure.

24) For the reasons stated above we are not inclined to

allow the prayers made by the petitioner.

25) The writ petition is dismissed. Rule discharged with no

order as to costs.

     (K.U. CHANDIWAL, J.)                           (NARESH H PATIL, J.)
     rsl/ wp.4822.2009