1. The petitioner, an advocate was appointed as Additional Public Prosecutor for the Court of Assistant Sessions Judge, Guntur for a period of three years from 27-1-1963. By G.O.Ms No. 664 dated 11-4-1966 he was reappointed as Additional Public Prosecutor, Guntur for the Court of Assistant Sessions Judge, Guntur for a second term of three years from 27-1-1966. Under the standing instructions regulating the appointment of Public Prosecutors and Government Pleaders in the mofussil no Public Prosecutor or Government Pleader shall hold office beyond the age of 60 years and his services shall terminate automatically on attaining the age of 60 years unless Government specifically orders otherwise. The petitioner attained the age of sixty on 5-1-1968 and the Collector of Guntur by his Re. No. 10293/67 Cl. dated 15-4-1968 directed him to be relieved of his post with immediate effect and appointed another advocate as Additional Public Prosecutor. In this writ petition the petitioner challenges the validity of the order of the Collector.
2. Sri N. Krishnamurthy, learned Counsel for the petitioner, submits that the post of Additional Public Prosecutor is a ‘civil post’ within the meaning of Article 311 of the Constitution and therefore the services of the petitioner could not be terminated without giving him a reasonable opportunity to show cause against such termination.
3. In any case he submits that the petitioner is entitled to continue in office for three years in terms of the order of his reappointment.
4. I am unable to agree with any of the contentions of Mr. Krishna Murthy. Art. 311 of the Constitution occurs in the Chapter dealing with ‘services under the Union and the States” and is itself headed ‘Dismissal, removal or reduction in rank of persons employeed in Civil capacities under the Union or a State’. Its protection extends to persons who are members of a Civil Service of the Union or State or persons who hold civil posts under the Union of State. It is clear to my mind that the relationship of master and servant must exist before a person can claim to hold a ‘Civil post under a State’ and therefore entitled to the protection of Art. 311 of the Constitution. Now an advocate who is appointed as Public Prosecutor does not cease to be an advocate. He will continue to be on the roll of the Bar Council and will continue to be amenable to the disciplinary jurisdiction of the Bar Council. He does not place the whole of his time or all his services at the disposal of the Government. Except that be cannot appear against the State in Criminal cases he is free to practice in all the Courts in the land. His position, as well as the position of other law Officers, in relation to the Government is not that of a servant and master but rather that of a lawyer and litigant or counsel and client. The Government while it has the right to make the appointment of a Public Prosecutor and stipulate and pay his remuneration, has no right ‘to control the method of his doing work’. The power not only to direct the doing of some work but also power to direct the manner in which the work is to be done, is one of the features of the relationship of Master and Servant (vide State of U.P v. A.N Singh)(A.I.R 1965 Supreme Court 360) That feature is certainly absent here because a Public Prosecutor does not conduct his case in the manner directed by the Government. He is an officer of the Court serving the cause of justice and as one learned Judge said ‘he is a minister of justice’. His duty is to conduct his cases fairly and impartially, never interested in securing convictions at all costs but ever interested in upholding the just and the right. He is as interested in protecting the innocent as any counsel for the defence. Thus, a Public Prosecutor neither places all his time and services at the disposal of the Government nor is the manner in which his work is done directed by the Government. I cannot therefore hold that an Advocate who is appointed as a Public Prosecutor holds a ‘civil post’ within the meaning of Art. 311 of the Constitution of India. I however guard myself against being understood to have expressed the opinion that persons appointed to the cadre of Assistant Public Prosecutors in the State Service who give up their practice as advocates and give their whole time to the service of the Government are not persons holding ‘civil Posts’ within the meaning of Art. 311 of the Constitution.
5. The next submission on behalf of the petitioner is that he was appointed for a period of three years and he must therefore be allowed to continue for three years. This right claimed by the petitioner is a right based on a contract and enforcement of contractual obligations is certainly outside the province of Article 226 of the Constitution. Further, as pointed out by the learned Government Pleader all appointments of Public Prosecutors and Government Pleaders in the mofussil are subject to the standing instructions contained in G.O No. 3698 Home dated 25-11-1946 which prescribes that no Public Prosecutor or Government Pleader shall hold office beyond the age of sixty years and his services shall terminate automatically on attaining the age of sixty years unless Government specifically orders otherwise. There is no specific order of the Government to the contrary in the present case. There is therefore no substance in the second submission of Sri Krishnamurthy.
6. The writ petition is therefore dismissed with costs. Before parting with the case I must say that the filing of a writ petition seeking the office Public Prosecutor has not added to the dignity of the legal prefession of which the petitioner is a member or to the prestige of the office of the Public Prosecutor which he is claiming. To say the least, it is distressing. Advocate's fee. Rs. 100/-.