Devi Prasad Singh, J.@mdashIn this bunch of writ petitions, question and dispute involved relates to appointment of District Government Counsels
in District and Sessions Courts of the State of U.P. Substantial question of law is of public importance and common in all the writ petitions. Factual
background in these bunch of writ petitions is also with slight difference are more or less same. Hence, with the consent of parties, we decide the
writ petitions by present common judgment. Keeping in view lengthy argument, advanced by the parties'' counsel, we are adjudicating the dispute
under the following heads:
(I) Maintainability of writ petition
(II) Role of Public Prosecutors
(III) Appointment and Renewal
(IV) Government''s right - whether statutory?
(V) Opinion of District Judge
(VI) Impugned order and the binding precedent
(VII) Overruling of judgments by Executive Order, not permissible.
(VIII) Undertaking/statement before the Court, shifting of stand and change of Government.
(IX) Doctrine of Finality
(X) Section 25-A of CrPC and Repugnancy
(XI) Office of L.R. of State of U.P. and its failure
(XII) Omission and Arbitrariness
(XIII) Cost
(XIV) Some individual cases
(XV) Rule of Law
(XVI) Finding
(XVII) Order
2. Writ Petition No. 7851(M/B) of 2008 shall be leading writ petition, followed by writ petition No. 3922(M/B) of 2011 and 4179(M/B) of 2011
and other petitions.
3. Appointment on the post of District Government Counsel in the State of U.P. has been a battle ground since more than two decades. With the
change of Government, ""Spoils System"" comes to light and results into removal and appointment of the members of noble profession in the District
Courts throughout the State and sometime in the High Court also. Barring exception, the reasons seems to be political one and to generate and
perpetuate political power, may be under false notion as a ""vote catching device"".
Thomas Hobbes rightly said, to quote:
I put for a general inclination of all mankind, a perpetuall and restlesse desire of Power after power, that ceaseth only in Death. And the cause of
this, is not always that a man hopes for a more intensive delight, than he has already attend to; or that he cannot be content with a moderate power:
but because he cannot assure the power and means to live well, which he hath present, without the acquisition of more. (Leviathan by Thomas
Hobbes, page 54).
4. Unfortunate part of political action suffers from the short slightness without visualizing the effect and consequence of actions which the society or
country may face in due course of time. Giving example, Thomas Hobbes said how different section of people and administration suffers, in the
absence of forthrightness, to quote:
Ignorance of remote causes disposeth men to attribute all events, to the causes immediate, and Instrumental; For these are all the causes they
perceive. And hence it comes to passe, that in all places, men that are grieved with payments to the Publique, discharge their anger upon the
Publicans, that is to say, Farmers, Collectors, and other Officers of the publique Revenue; and adhaere to such as find fault with the publike
Government; and thereby, when they have engaged themselves beyond hope of justification, fall also upon the Supreme Authority, for fear of
punishment, or shame of receiving pardon. (Leviathan by Thomas Hobbes, page 58).
Lawyers being officers of the Court whether appear to defend cause of private litigant or the Government in case appointed de hors the merit, then
naturally barring exceptions, quality of judgment shall come down and in due course of time because of possible injustice which may cause, the
ultimate sufferer shall be the society at large.
5. In the State of U.P., District Government Counsel (DGC) for civil, criminal and revenue Courts are appointed in accordance with the procedure
prescribed by Legal Remembrancer Manual (in short, L.R. Manual). The petitioners of these bunch of writ petitions were appointed in pursuance
to the provisions contained in L.R. Manual. They were aspirant for the renewal of their services in terms of L.R. Manual keeping in view the
performance report"", submitted by the District Judge and the District Magistrate of the district concerned. In some of the cases, fresh appointment
has been done without considering the renewal wherein in some of the cases, old incumbents have been replaced by freshers alleged to be on
political consideration. The State acquired the right to dispense with the recommendation of the District Judge by amending the L.R. Manual.
6. Thus, the grounds raised by the petitioners are that the amendment done by the Government is an instance of arbitrary exercise of power and
the opinion of the District Judge cannot be dispensed with. It is also pleaded that without considering the renewal in terms of the L.R. Manual, of
the old incumbents, no fresh recruitment could have been done. In some of the cases, the other limb of argument is that the persons chosen to be
appointed as District Government Counsel is founded on extraneous material, i.e. for political consideration or for other extraneous reasons. While
challenging the amended L.R. Manual, it has been pleaded that without obtaining the opinion of District Judge and without considering the renewal
of the old incumbents on justifiable ground, freshers could not have been appointed. Broadly on these grounds, the petitioners have preferred the
present bunch of writ petitions.
7. It further appears that the State Government took a decision to invite panel of advocates for appointment of Government counsels all over the
State, that too without taking a decision with regard to renewal of working incumbents in different districts of the State. Thus, with pre-determined
mind, the State Government issued a circular dated 17.4.2011, a copy of which has been filed in different writ petitions and in writ petition No.
3922(M/B) of 2011 as Annexure 1. In pursuance to the said circular in different districts, notices were affixed and applications were invited for
appointment of District Government Counsel. It shall be appropriate to reproduce the circular dated 17.4.2011:
8. Writ petition No. 7851(M/B) of 2008 has been filed by a registered association of District Government Counsel challenging the impugned
Government Order dated 13.8.2008 by which the provisions of L.R. Manual under paras 7.03, 7.06(2), 7.08, 7.13, 8.02, 8.04, 8.05, 8.06 and
8.07 have been amended by which the requirement to obtain a report of the District Judge concerned has been dispensed with and the District
Magistrate/Collector alone has been empowered to prepare the panel and submit a report to make fresh appointment or renew the services of old
one. The age of superannuation also has been reduced to 60 years, earlier which was 62 years. On account of the amendment of para 7.08, now it
shall be necessary for the State Government Counsel to seek a renewal three months before expiry of term on the basis of the report submitted by
the District Magistrate/Collector with regard to work, conduct and income of the District Government Counsel concerned.
9. While raising different ground assailing the impugned amendment, it is also stated that the State acted in violation of the observation made by the
Hon''ble Supreme Court and undertaking given in a case in State of U.P. v. Johri Mal, 2004 ACC 702 SC.
10. Writ Petition No. 3922(M/B) of 2011 is filed by a petitioner who was working as District Government Counsel, Revenue, Gautambudh
Nagar, appointed by order dated 18.5.1998. It is pleaded that inspite of the fact that he has moved an application for renewal of his term and the
report was submitted by the District Magistrate and without adjudicating the question with regard to renewal, the Government has invited
applications from the advocates on 20.4.2011 to fill up the post on which the petitioner is working. An interim order was passed by a Division
Bench on 28.4.2011 in a connected writ petition No. 3919 (M/B) of 2011, benefit of which was made available to the petitioner.
11. Later on, the State Government by order dated 28.4.2011 declined to renew the petitioner''s term and cancelled the assignment of District
Government Counsel impugned in writ petition No. 4179(M/B) of 2011. The Division Bench of this Court in its order dated 3.5.2011 took note of
the fact that on 28.4.2011 itself. Learned Chief Standing Counsel Shri D.K. Upadhyay has given undertaking that no fresh appointment shall be
done unless renewal of the petitioner and all other Government counsel whose renewals are due is considered and disposed of. The Court opined
that the undertaking was given on the same day and the impugned order was passed on the same day is an instance of non-application of mind
since the order has been passed under the signature of one Brijesh Kumar, Special Secretary with the approval of the Principal Secretary, Law,
namely Shri K.K. Sharma. Keeping in view the manner in which hastily, the order was passed, prima facie reveals that it was not passed in
compliance of the interim order dated 28.4.2011; rather in a hasty manner without application of mind. Hence, explanation was called from the
Principal Secretary, Law.
12. While filing the writ petition No. 4179, the petitioner has also placed on record the report of the District Magistrate dated 28.5.2007,
recommending for the petitioner''s renewal followed by another order dated 22.7.2009. Another recommendation is of earlier one dated
30.10.2007. The report of the District Magistrate dated 14.1.2011 is also on record, by which the District Magistrate, Gautambudh Nagar has
made a request for renewal of the petitioners'' engagement which expired on 14.6.2004. However, in what circumstance, the renewal could have
been refused by the Government, approved by the Principal Secretary, Law is a matter of deep concern, more so when the Division Bench has
passed an interim order on 3.5.2011, followed by another order dated 28.4.2011.
13. In Writ Petition No. 3922(M/B) of 2001, a copy of the complaint submitted by Shri Kali Charan Suman on the letter pad of Bahujan Samaj
Party against the petitioner has been placed on record requesting for an enquiry in which, according to the petitioner''s counsel, nothing against was
found by the district authorities and the recommendation was made for renewal as mentioned in the preceding para. Hence, it is also stated that the
decision taken not to renew the services is based on political considerations.
14. So far as the factual controversy with regard to mala fide in other petitioners is concerned, it shall be dealt with at appropriate place.
STATUTORY PROVISIONS
15. Code of Criminal Procedure, 1898 was repealed and new enactment regulating the criminal trials under the title, ""Code of Criminal Procedure,
1973"" (in short Code) promulgated by the Parliament came into effect on 25.1.1974. The Parliament accepted the recommendation of the Law
Commission and amended various provisions of the Code again by Act No. 45 of 1978. Section 24 was amended by Amending Act of the State
of U.P. and Subsections 4, 5, 6 of Section 24 are deleted. The Law Commission had opined that while making appointment on the post of District
Government Counsel, consultation with Sessions Judge should be restored. Relevant extract of the recommendation of the Law Commission of
India which persuaded the Central Government to restore earlier provision, nullifying the State amendments is reproduced as under:
(2) Whether requirement of consultation with Sessions Judge under Section 24(4) may need to be restored to override State Amendments? There
is no doubt that consultation process with the Sessions Judge must be restored so far as Section 24(4) is concerned. We note that certain States
have dispensed with consultation with the Sessions Judge by amending Section 24(4). We agree with the PMO that this has to be prevented or put
an end to. But, as stated earlier, while reiteration by a fresh Parliamentary law can be made, such reiteration cannot sole the problem in view of the
powers of State Legislatures unless we introduce some provisions which are consistent with Article 14 so that in case they are deleted by the
States, such deletions can be attacked as being in violation of Article 14. In order to preclude arbitrary State Amendments, we, therefore, propose
to bring in a higher constitutional principle to compel a fair, transparent procedure of appointment to be followed. Once, such a procedure is
introduced into Section 24 by Parliament, then whenever the States do away with such a procedure, that will clearly attract Article 14. States
cannot make a provision which is arbitrary and which permits them to appoint Public Prosecutors or Addl. Public Prosecutors at their sweet will or
whomsoever they like or on political considerations. We shall explain this new scheme in detail when we come to suggestion No. (3).
In Section 24 under sub-section 6, an explanation was added by Cr.P.C. Amendment Act, 2005, enforced from 18.12.1978 retrospectively by
notification dated 21.6.2006.
16. In the State of U.P., the amending Act No. 33 of 1978 has been given effect from 9.10.1978. In sub-section (1) of Section 24 further
amendments were made and it was provided that after the words, ""Public Prosecutor"", the words, ""and one or more Addl. Public Prosecutors
shall be inserted and be deemed always to have been so inserted.
In Section 24(7), after sub-sections (6) and (7), further words were inserted as under:
(7) For the purpose of sub-sections (5) and (6), the period during which a person has been in practice as a pleader, or has rendered service as a
public prosecutor, Addl. Public Prosecutor or Assistant Public Prosecutors, shall be deemed to be the period during which such person has been
in practice as an advocate.
Again, in the State of U.P., by Act No. 18 of 1991, amendment was done in Section 24 which was given effect from 16.2.1991 as under:
(a) In Sub-section(1), the words, ""after consultation with the High Court"" shall be omitted;
(b) sub-sections (4), (5) and (6) shall be omitted.
(c) In sub-section (7), the words, ""or sub-section (6)"" shall be omitted.
Thus, by Amending Act No. 18 of 1991 given effect from 16.2.1991 in the State of U.P., the statutory requirement of consultation with the District
and Sessions Judge with regard to preparation of panel of names of persons for appointment on the post of Public Prosecutor or Addl. Public
prosecutor for a district has been given go-bye.
17. Virtually, by amending the provision and deleting sub-sections (4), (5) and (6) of the Act, State of U.P. had acted against opinion of the Law
Commission of India which was well thought exposition and accepted by the Parliament while enacting the Code.
Section 321 of the Cr.P.C. was also amended (supra) as under:
In Section 321 of the Cr.P.C., after the words, ""incharge of a case"", the words, ""on the written permission of the State Government to that effect
(which shall be filed in), shall be inserted.
18. In the State of U.P., apart from the aforesaid statutory provisions in Civil Court, the appointment of State Counsel in the revenue Court is done
in pursuance to the provisions contained in Section 127B of the U.P. Z.A.L.R. Act under the name and title of ""panel lawyers"" which is
reproduced as under:
Section 127B(1). The State Government may, on such terms and conditions and in such manner as may be prescribed, appoint in each district a
panel of lawyers to conduct suits and other proceedings by or against the Gaon Sabhas in respect of their functions under this Act.
(2) A panel lawyer shall with respect to such Gaon Sabhas in the district, as may be prescribed, be their agent for the purpose of receiving
processes issued by any Court or any authority against them in respect of their functions under this Act and shall be deemed to be the recognised
agent by whom appearances, acts and applications under this Act, or the United Provinces Land Revenue Act 1901 or any other law relating to
land tenure may be made or done on behalf of such Gaon Sabhas.
19. Under the Code of Civil Procedure also, Section 2(15), the pleader has been defined which is as under:
(15) ""pleader"" means any person entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High
Court.
20. Rule 114 of the Uttar Pradesh Zamindari Abolition and Land Reforms Rules, 1952 regulates the procedure for appointment on the post of
panel lawyers in the revenue Courts which is reproduced as under:
114. (1) For the conduct of suits, applications and other proceedings, including objections, appeals, revisions, writs and special appeals, by or
against the Gaon Sabhas, the following shall be appointed in the manner provided in sub-rule (2) as panel lawyers for the Courts specified against
each:
(a) One Tahsil Panel Lawyer (Revenue) for each tahsil in respect of revenue cases before the Court of Tahsildar or before a Consolidation Officer
whether they hold their Court at tahsil headquarters or at any other place with the tahsil. He will represent all the Gaon Sabhas with the tahsil.
(b) One Tahsil Panel Lawyer (Civil) for each tahsil in respect of civil cases before civil Courts, if any, within the tahsil. He will represent all the
Gaon Sabhas within the tahsil.
(c) One District Gaon Sabha Panel Lawyer (Revenue) for each district in respect of revenue cases before the Courts of Collector, Additional
Collector, Assistant Collector First Class (excluding Tahsildar), Settlement Officer Consolidation, Deputy Director of Consolidation and Director
of Consolidation, whether they hold their Court at district headquarters or at any other place within the district. He will represent all the Gaon
Sabhas within the district.
(d) One District Gaon Sabha Panel Lawyer (Civil) for each district in respect of civil cases before all the civil Courts at district headquarters
excluding High Court. He will represent all the Gaon Sabhas within the district.
(e) One Divisional Gaon Sabha Panel Lawyer (Revenue) at each divisional headquarter for the Courts of the Commissioner and the Additional
Commissioner. He will represent all the Gaon Sabhas in the division.
(f) One Gaon Sabha Panel Lawyer (Board of Revenue) for the cases of all the Gaon Sabhas within the State before Board of Revenue each at
Allahabad and at Lucknow.
(g) One Gaon Sabha Panel Lawyer (High Court) for the High Court each at Allahabad and at its Bench at Lucknow.
(h) One or more such additional Panel Lawyer referred to in clauses (a) to (g) above, if considered necessary, with reference to the work load.
(2) Manner of appointment-(a) The Tahsil Panel Lawyers shall be appointed by the Collector of the district.
(b) Unless otherwise directed by the Government in any particular case or cases, a Government Counsel appointed by the Government to conduct
suits for or against the Government in the revenue Courts at district headquarters shall be deemed to have been appointed by the Government as
District Gaon Sabha Panel Lawyers (Revenue) for that district under clause (c) of sub-rule (1). Similarly, a Government counsel appointed by the
Government to conduct cases for or against the Government before the Civil Courts at the district headquarters or before the Court of
Commissioner and Additional Commissioner or before the Board of Revenue or before the High Court shall be deemed to have been appointed
respectively by the Government as District Gaon Sabha Panel Lawyer (Civil), Divisional Gaon Sabha Panel Lawyer (Revenue) Gaon Sabha Panel
Lawyer (Board of Revenue) and the Gaon Sabha Panel Lawyer (High Court).
(c) The appointments of Panel Lawyers referred to in clause (c) to (f) of sub-rule (1) under this clause shall be made by the Government after
consideration of the recommendations of the Collector and the District Judge. The appointment of Panel Lawyer referred to in clause (g) of sub-
rule (1) under this clause shall be made in consultation with the Advocate General.
(d) Notwithstanding anything contained in clauses (b) and (c) the Government may appoint a counsel other than the Government Counsel referred
to in clause (b) above as Panel Lawyer under clauses (c) to (g) of sub-rule (1) for the Gaon Sabha cases.
(e) Where any additional Panel Lawyer is appointed under clause (h) of sub-rule (1), the charge of cases to be attended to by the Panel Lawyer
and each of the additional Panel Lawyer in terms of sub-section (2) of Section 127B shall be clearly specified as the case may be by the Collector,
The Commissioner, the Secretary, Board of Revenue, or the Government, under intimation to the Courts concerned. The additional Panel Lawyer
will, however, work under the supervision of the Panel Lawyer subject to the overall control of the Collector, the Commissioner, the Secretary,
Board of Revenue, or the Government, as the case may be.
(3) Terms and conditions.--The term of a Panel Lawyer referred to in clause (a) or clause (d) of sub-rule (2) shall be three years. It may be
renewed thereafter for another period not exceeding three years, if his work, conduct and integrity is found to be satisfactory. But it shall be in the
exclusive discretion of the appointing authority to terminate the appointment at any time during the first or subsequent term without assigning any
reason therefor.
(4) The appointment of all the Gaon Sabha Panel Lawyers referred to in sub-rule (2) shall be subject to the following terms and conditions-
(a) No Panel Lawyer shall institute, contest or conduct any case unless he is authorised to do so by the Sub-Divisional Officer, or the Collector, or
the Board of Revenue or the Government, as the case may be. He will also be under a disability to appear in any case against a Gaon Sabha
except with the permission of the Government or the Collector of the district in which the Gaon Sabha is situate. This permission may be granted if
there is no conflict of interest between the party for which he appears and the Gaon Sabha.
(b) Where State is impleaded alongwith the Gaon Sabha, the Panel Lawyer shall, unless directed otherwise by the Collector, also defend the
interest of the State.
(c) The Panel Lawyer shall, when required, give legal opinion and advice free of charge to the Bhumi Prabandhak Samiti of the Gaon Sabhas in
regard to the institution, conduct and defence of the cases.
21. From close reading of the aforesaid provisions with regard to appointment of panel lawyers in the revenue Courts where the Presiding Officers
are appointed from the executive branch of the State Service shows that the provision for appointment in the revenue Courts, in consultation with
District Judge has been made mandatory.
22. Section 2(7) of the Code of Civil Procedure speaks and defines with regard to pleaders of civil Court which is reproduced as under:
2(7) Government Pleader"" includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by
this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader;
Order 27 Rule 8B defines the ""Government"" and ""Government pleader"" as under:
8B. Definitions ""Government"" and ""Government pleader"". In this order [unless otherwise expressly, provided], Government and [""Government
pleader""] mean respectively--
(a) in relation to any suit by or against the Central Government, or against a public officer in the service of the Government, the Central
Government and such pleader as that Government may appoint whether generally or specially for the purposes of this Order;
(C) in relation to any suit by or against a State Government or against a public officer in the service of a State, the State Government and the
Government pleader (as defined in clause (7) of Section 2), or such other pleader as the State Government may appoint, whether generally or
specially, for the purposes of this order.
23. Apart from aforesaid statutory provisions, in the State of U.P., the prevailing system for engaging lawyers to attend the Government work is
regulated by Legal Remembrancer Manual (in short hereafter referred to as L.R. Manual). Under the unamended L.R. Manual, provision has been
made for effective consultation with the District Judge while preparing panel for the District Government Counsels. According to original provision
while choosing an advocate, opinion should be formed keeping in view the reputation, professional work, behaviour and conduct of the lawyers.
Now, it is no more res integra that the L.R. Manual is an authoritative compilation of the Government Orders and instructions for the conduct of
legal affairs of the State Government vide Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, ; Harpal Singh Chauhan and
others Vs. State of U.P., ; State of U.P. and others Vs. U.P. State Law Officers Association and others, and State of U.P. and Another Vs. Johri
Mal, .
24. It shall be appropriate to reproduce certain provisions of unamended L.R. Manual.
Para 7.01 of Legal Remembrancer''s Manual defines the District Government Counsel to mean legal practitioners appointed by the State
Government to conduct in any Court such Civil, Criminal or revenue cases, as may be assigned to them either generally, or specially by the
Government. The legal practitioner appointed to conduct civil, criminal or revenue cases shall be known as District Government Counsel (Civil),
(Criminal) or (Revenue), as the case may be.
Para 7.02 of the Manual lays down the power of the Government to appoint Government Counsel for each district in the State. Para 7.03
provides that whenever a post of any Government Counsel is likely to fall vacant within the next three months or when a new post is created, the
District Magistrate shall notify the vacancies to the members of the Bar, the qualification wherefor would be practice of 10 years in case of District
Government Counsel, 7 years in case of Assistant District Government Counsel and 5 years in case of Sub-District Government Counsel. Clause
(3) of Para 7.03 reads thus:
(3) The names so received shall be considered by the District Officer in consultation with the District Judge. The District Officer shall give due
weight to the claim of the existing incumbents [Additional/Assistant District Government Counsel], if any, and shall submit confidentially in order of
preference the names of the legal practitioners for each post to the Legal Rememberancer giving his own opinion particularly about his character,
professional conduct and integrity and the opinion of the District Judge on the suitability and merits, of each candidate. While forwarding his
recommendations to the Legal Rememberancer the District Officer shall also send to him the bio-data submitted by other incumbents with such
comments as he and the District Judge may like to make. In making the recommendations, the proficiency of the candidate in civil or criminal or
revenue law, as the case may be, as well as in Hindi shall particularly be taken into consideration:
Provided that it will also be open to the District Officer to recommend the name of any person, who may be considered fit, even though he may not
have formally supplied his bio-data for being considered for appointment. The willingness of such a person to accept the appointment if made shall,
however, be obtained before his name is recommended.
Para 7.04 of the said Manual provides that on receipt of the recommendations of the District Officer, the Legal Remembrancer may make further
enquiry and submit the recommendations as also for orders of the State Government. The decision of the State Government would be final. Para
7.05 prohibits canvassing by or on the part of a candidate which would entail disqualification.
Paras 7.06, 7.07, 7.08 and 7.09 read thus:
7.06. Appointment and renewal.--(1) 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 end 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 engagement 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 either 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.
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.
Note: The term political activity includes membership of any political party or local body as also press reporting work.
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 alongwith 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
therefor 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 stand point, keeping in view the different aspects
of a lawyer''s capacity as it is manifested before him in conducting State 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 re-appointing him for a period not exceeding three years.
(5) If the Government decides not to re-appoint 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.
25. Chapter VIII of the L.R. Manual deals with appointment of panel lawyers. Para 8.01 provides that the District Officer (District Magistrate)
shall maintain the list of panel lawyers for conducting of the criminal and civil cases and also cases under factories and other labour laws on behalf
of Government in his district.
Para 8.02 contains the provision with regard to inviting applications and provides that the district officer shall circulate notice amongst the practicing
lawyers of not less than five years standing at bar and list shall be prepared in consultation with the District Judge. It shall be appropriate to
reproduce para 8.02 of the L.R. Manual which is reproduced as under:
8.02. Applications for Panel lawyers.--(1) The District Officer shall circulate notice amongst practising lawyers of not less than five years standing
at the Bar inviting them to intimate to him their willingness to be considered for inclusion in the panel and to furnish full particulars of their
qualifications and practice. He shall then consult the District Judge in regard to the names of lawyers who express their willingness to be considered
and forward to the Legal Remembrancer the names of lawyers recommended by him to be appointed in order of preference, alongwith the
recommendations of the District Judge. He shall in particular give his remarks about the character, professional conduct, integrity and suitability of
the persons recommended.
(2) The District Officer shall also forward all other applications to the Legal Remembrancer with such remarks in respect of matters referred to in
sub-para (1), as he or the District Judge may like to make.
(3) Ordinarily, a candidate already holding one post under Government such as a Notary or an Official Receiver should not be recommended for
appointment to the panel, but if for any special reasons the name of such a candidate is recommended, the District Officer shall specifically bring
that fact to the notice of the Government and shall also give reasons for making the recommendation. In such case an undertaking shall be obtained
from the candidate that before his appointment to the panel he shall resign from the post already held by him.
26. Under para 8.04, recommendation of the district officer and District Judge shall be processed by the Legal Remembrancer by submitting his
report to the Government which is reproduced as under:
8.4 Recommendations of District Officer and District Judge.--(1) The Legal Remembrancer or such other Officer of his department as may be
entrusted with this work by the Legal Remembrancer shall, after examining the recommendations of the District Officer and the District Judge etc.,
submit the papers for orders alongwith his own recommendations.
(2) The Legal Remembrancer or other Officer may call for such further particulars in respect of all or any of the candidates from the District
Officer, District Judge or from any other source, as may be considered necessary.
The period for appointment of panel lawyers under para 8.05 is of one year and the procedure for renewal has been given in para 8.06, that too
provides in consultation with District Judge. The age of superannuation has been provided to 60 years which may be extended upto 62 years.
27. Chapter XXI of the L.R. Manual contains the provisions for renewal of District Government Counsels. It has been provided under Chapter
XXI that it is supplementary to other provisions of the Manual. However, in the event of inconsistency with other provisions, the provision
contained in Chapter XXI shall prevail (overriding effect). It shall be appropriate to reproduce paras 21.01, 21.02, 21.03, 21.04, 21.05, 21.06,
21.07, 21.08 of Chapter 21 which is as under:
21.01. The provisions of this Chapter are supplementary to the provisions contained elsewhere in the Manual. Only in the case of inconsistency
with other provisions, the provisions of this Chapter shall prevail.
21.02. Before the commencement of the Code of Criminal Procedure, 1973 (hereinafter referred to as the new Code), Public Prosecutors were
appointed under Section 40 of the Code of Criminal Procedure, 1998 (Act V of 1898) (hereinafter referred to as the Code). Under Section 492
of the old Code, the Central Government or the State Government could appoint generally or any case or for any specified classes of cases, in any
local area, one or more officers to be called Public Prosecutors. Such Public Prosecutors were appointed for conducting cases in the High Court,
Courts of Session and those of Magistrates. Under the new Code the appointment of Public Prosecutors and Assistant Public Prosecutors has
been provided for under Sections 24 and 25. Public Prosecutor appointed under Section 24 are authorized to appear in the High Court and in a
Court of Session while Assistant Public Prosecutor appointed under Section 25 are authorised to appear only in a Court of Magistrate.
Any reference in the Manual to the District Government Counsel (Criminal), the Assistant District Government Counsel (Criminal) and the Panel
Lawyers shall be construed as reference to Public Prosecutor, Additional Public Prosecutor Grade-1, Additional Public Prosecutor Grade-II, and
Additional Public Prosecutor Grade-Ill respectively. This change of designation does not affect the basic nature of their professional engagement
which is terminable on either side without notice and without assigning any reason.
21.03. The appointments of Public Prosecutors and Additional and Special Public Prosecutors for the High Court and for the districts shall be
made by the Judicial Department in accordance with Section 24 of the new Code.
21.04. For every vacancy in the office of Public Prosecutor or Additional Public Prosecutor in a district, District Magistrate shall prepare a Panel
of names of persons in consultation with the Sessions Judge of the Sessions Division. A Panel of five persons against each such vacancy shall be
prepared. The District Magistrate while forwarding the Panel of names to the Legal Remembrancer shall subject the bio-data of the persons
included in the panel and also send a copy of the opinion of the Sessions Judge, in respect of each such person, he shall also submit his report
about the character integrity and capability of every person included in the panel giving details of the work handled by him during the course of the
preceding two years. It should also be stated if the persons included in the panel were income tax payers or not and if so, the amount of gross
income from the profession on which they were assessed.
21.05. A person shall only be eligible to be included in such panel if he has been in practice as an Advocate or Pleader for not less than seven
years.
21.06. The State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only out of the names appearing in the panel.
21.07. The appointment of Public Prosecutor or Additional Public Prosecutor shall be made for a period of three years but the State Government
may terminate such appointment at any time without notice and without assigning any reasons. The State Government may extend the period of
appointment from time to time and such extension of term shall not be treated as a new appointment.
21.08. The District Magistrate shall after consultation with the Sessions Judge submit a confidential report in respect of the Public Prosecutor and
Additional Pubic Prosecutors giving details about the percentage of success of cases conducted by them and the general reputation which they
enjoy. Where the percentage of success is low, the reasons given by the Public Prosecutor or Additional Public Prosecutor for the same should
also be commented on. After every three years he shall make a special assessment of each such Public Prosecutor or Additional Public Prosecutor
and recommend whether the person concerned should be granted extension for a further term of three years or for a shorter term only.
28. Selection, appointment, removal and reappointment of District Government Counsels of the State of U.P. has been knocking the door of
Supreme Court from time to time. One of the dispute which came before Supreme Court for adjudication (before a three Judge Bench) is the case
of Johri Mal (supra). While deciding the case of Johri Mal, amendment in the Code of Criminal Procedure (supra) was not in issue but when the
attention of the Court was invited to the amendment made by the State of U.P., Supreme Court has shown its shock and displeasure of the said
amendment. Then the plea taken by the State of U.P. was that the provision contained in L.R. Manual not only fulfill the requirement of
consultation with District Judge but also is more elaborate than the original provision contained in Section 24 of the Code of Criminal Procedure. It
shall be appropriate to reproduce relevant portion from the case of Johri Mal (supra):
85. The age-old tradition on the part of the State 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 offence, public officers, witnesses etc. The District Magistrate is also supposed to know about the conduct of the
Government counsel as also their integrity.
86. We are also pained to see that the State of Uttar Pradesh alone had amended sub-section (1) of Section 24 and deleted sub-sections (4), (5)
and (6) of Section 24 of the Code of Criminal Procedure. Evidently, the said legislative step had been taken to overcome the decision of this Court
in Kumari Shrilekha Vidyarthi (supra). We do not see any rationale in the said action. The learned counsel appearing for the State, when
questioned, submitted that such a step had been taken having regard to the fact that exhaustive provisions are laid down in Legal Remembrancer
Manual which is a complete code in itself. We see no force in the said submission as a law cannot be substituted by executive instructions which
may be subjected to administrative vagaries. The executive instructions can be amended, altered or withdrawn at the whims and caprice of the
executive for the party in power. Executive instructions, it is beyond any cavil, do not carry the same status as of a statute.
87. 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 State 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 hereinbefore, 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 salutary 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.
CONCLUSION:
88. For the aforementioned reasons, we are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly. The
appeal is allowed but in the facts and circumstances of the case, there shall be no order as to costs.
29. Virtually, the observation made by Hon''ble Supreme Court in the case of Johri Mal (supra) is based on stand taken by the State Government
on the basis of amended L.R. Manual to justify the deletion of sub-sections (4), (5) and (6) of the Code of Criminal Procedure though the fact was
not in issue before the Supreme Court.
The State Government without caring to defence taken by it before the Supreme Court (supra) which seems to be in form of undertaking amended
the L.R. Manual by the impugned Government Order dated 13.8.2008 circulated by the Principal Secretary, Law, State of U.P.
30. During the course of hearing, we have directed the learned State counsel to furnish the English version of the impugned amendment but we
were informed that no English version was prepared or available with the State Government.
31. A plain reading of the impugned Government Order does not reveal the justification, aims and object to amend the L.R. Manual by deleting the
provisions with regard to consultation with the District Judge of the district. It also does not borne out from the impugned Government Order or the
record how the performance, conduct, ability, knowledge, professional integrity or professional proficiency shall be judged by the District
Magistrate while sending the names to the Government or how the Government itself shall judge the lawyers'' merit, proficiency, integrity and other
qualities while taking a decision to appoint District Government Counsels. The Government Order also does not show as to how the requirement
of Chapter XXI of the L.R. Manual shall be fulfilled read with provisions contained in U.P.Z.A.L.R. Act and rules framed thereunder.
While considering the arguments advanced by the learned counsel for the petitioners as well as learned counsel for the State of U.P., it shall be
further appropriate to take into account the report of the Law Commission of U.P. submitted to the State Government in December, 2001.
32. In the State of U.P., in pursuance to the recommendation of the Law Commission of India, with regard to appointment of Director of Public
Prosecution, and creation of regular cadre of Public Prosecutor, steps have been taken and the Director and Public Prosecutor has been appointed
who deals with regular branch of prosecutors. There is a regular Director of Prosecution headed by police officers of the rank of Addl. Director
General of Police and is attached to the Home Department of the Government. However, it controls the cadre of Asstt. Public Prosecutors who
are engaged in the Court of magistrate. So far as the Court of sessions and High Court are concerned, the appointment of the District Government
Counsel and Addl. District Government Counsel are appointed in pursuance to the provisions contained in L.R. Manual (supra).
33. The Law Commission of U.P. had shown its deep concern and anguish while submitting its Twelfth Report after considering the judgments of
Hon''ble Supreme Court in the case of Srilekha Vidyarthi and two other cases in Harpal Singh Chauhan and others Vs. State of U.P., and State of
U.P. and others Vs. U.P. State Law Officers Association and others, . The Law Commission of U.P. is of the view that though appointment on the
post of District Government Counsel are contractual in nature but District Govt. Counsels hold public office and possess element of public service
which is a question of status and not purely contractual. The whole conception of unfettered discretion is not appropriate to a public authority who
possess power solely in order to use it for public good.
34. The Law Commission of U.P. has shown its distress and anguish for the amendment done in Section 24 of Criminal Procedure Code whereby
sub-sections (4), (5) and (6) of Section 24 of Cr.P.C. was deleted. The Law Commission opined that the amendments are done to appease the
legislatures necessitating distribution of favour in the shape of such appointments. Showing its displeasure, the Law Commission refrained to make
any recommendation for further amendment in Section 24 and 25 of the CrPC. It shall be appropriate to reproduce relevant portion of the 12th
report of the State Law Commission submitted in December, 2001:
............Reference may also be made to the series of Ordinances, each called the U.P. Government Litigation (Engagement of Counsel) Ordinance.
The Ordinances which were promulgated between 10th January, 1991 and 18th May, 1992 were as follows, each succeeding Ordinance
replacing the previous one:
These Ordinances related to appointment of counsel engaged to represent the State Government or any of its officers in any litigation before the
Supreme Court, High Court or any other Court, Civil or Criminal. They all provided that the Government will be engaging counsel on professional
basis. The engagement would be purely of trust and confidence and a person engaged will not be deemed to be holder of any civil post or office.
The engagement shall ordinarily be for a term not exceeding three years but may be terminated at any time by one month''s notice on either side or
on payment of an amount equal to the retainer fee for one month. The Government will be free to engage such number of counsel as it may
consider necessary. The Ordinance will override any judgment, decree, writ or order of any Court or rules, notification or executive instruction
passed or made before January 18, 1991. In other words the Legal Remembrancer''s Manual was to stand over-ridden, and the effect of the
judgment of the Supreme Court in Shrilekha Vidyarthi''s case was to be indirectly nullified.
These successive Ordinances had to be issued because none of them could be replaced by an Act of Legislature within the time frame laid down in
Article 213 of the Constitution. Ultimately the last of them also lapsed and could never be replaced by an Act due to intervention of the President''s
rule in December, 1992.
Although these Ordinances were allowed to lapse their object was achieved by U.P. Act No. 18 of 1991, the Code of Criminal Procedure (U.P.
Amendment) Act, by which Section 24 was amended. Under these amendments the requirement, in sub-section (1), of consultation with the High
Court for appointment of Government Advocates and Addl. Govt. Advocates in the High Court was dispensed with. Similarly sub-sections (4),
(5) and (6) were deleted, with the result that neither the District Magistrate nor the Sessions Judge need be involved in the process of selection of
District Govt. Counsel (Crl) and Addl. D.G.C. (Cr.). Thus Vidyarthi''s case stands effectively nullified, and the ruling in State of U.P. and others
Vs. U.P. State Law Officers Association and others, , supra, should apply to all such appointments as well as, giving legal sanction to the ""Spoils
System.
According to a newspaper report dated 1. December, 2000 (vide Hindi daily Jagaran dated 2.12.2000) a public interest litigation filed in the High
Court before a Bench consisting of Hon''ble Justices Raza and Nigam questions the justification for excessive appointments of State counsel.
According to the petitioner the number of State counsel at present attached to the Lucknow Behch of the High Court is as follows:
(a) Criminal Side: 13 Public Prosecutors
(b) Civil side: 61 Standing Counsel and 35 Brief Holders.
It is further stated that the Advocate General was not consulted in making these appointments and the appointments were decided upon in a
meeting comprising only the Principal Legal Remembrancer and the Chief Standing Counsel. Even sufficient place is not available for seating these
State lawyers in the High Court. Nor do they have any adequate staff to assist them. The report further states that according to the counsel for
Government it was purely discretionary with the State Government whether to consult the Advocate General in making these appointments or not
and that the matter of appointment was wholly in the discretion of the Government and that the writ petition was not maintainable.
We are not concerned here with what the Hon''ble Court decides on this PIL Writ petition. What is noteworthy here is the plethora of lawyers
appointed for the Lucknow Bench. The total comes to 109 lawyers for a Bench having only fifteen Court rooms.
Every time a new Ministry is formed there is pressures for change of Government lawyers. It is not only when the new Ministry belongs to a
different political party. Often, even within the same Council of Ministers a change of portfolios leads to change of lawyers or appointment of extra
lawyers.
These facts are only illustrative of the increasing politicisation of appointments of public prosecutors and other State counsel. For this state of affairs
no single political party can be blamed. Actually, it is the continuing political instability which compels the Ministers to try to appease the maximum
number of Legislators, necessitating distribution of favours in the shape of such appointments. (Another area of special interest to legislators is the
transfers and postings of police officers and district magistrates--which is another cause for the deteriorating law and order situation). It is inevitable
in such circumstances that quality and merit will be sacrificed, the Spoils System having full play. This factor also adds to insecurity of tenure.
Such being the ground realities, the situation can be remedied only by Central Legislation as any suggestion at the level of this Commission is bound
to be rejected by the State Government. Even if there is no Central legislation then possibly the Supreme Court or the High Court may try to
remedy the situation through PIL directives as was done in the case of appointments to the posts of Director, CBI and the Chief Vigilance
Commissioner at the Centre. Accordingly this Commission is not making any recommendation in regard to the amendment of Sections 24 and 25
and will prefer to leave the matter to the Government of India or to the judiciary for taking steps for suitably streamlining the public prosecutions
system.
The then Law Commission Justice K.N. Goel who submitted the report had expressed his deep sorrow and anguish over the State action to
exercise unfettered discretion by amending the Act and use of power to appointment the District Government Counsel for extraneous reasons and
political end. Justice K.N. Goel, a former Judge of Allahabad High Court, highly respected Judge and is known for his ability, knowledge, legal
accumenship while serving the State of U.P. holding different offices and still command respect.
35. The old provision as well as the amended provision as borne out from the impugned Government Order dated 13.8.2008 circulated by the
Principal Secretary, Law Shri Syyed Mazhar Abbas Abdi, as he then was (now retired) and which has been given with immediate effect are
reproduced as under:
(I) MAINTAINABILITY OF THE WRIT
PETITION
36. Mr. Raghvendra Kumar Singh, learned Senior Counsel as well as Mr. H.P. Srivastava, learned Addl. Chief Standing Counsel who appeared
on behalf of the State have stated that the impugned order being purely of administrative nature is not amenable to judicial review and it is the
privilege of the State Government to make appointment of a person who, according to the State Government, is found to be suitable for the post of
District Government Counsel. The argument advanced by the learned counsel appearing on behalf of the State of U.P. with regard to
maintainability of the writ petition requires consideration.
37. Now, it is trite in law that difference between administrative and quasi-judicial power of the State has almost obliterated. In a welfare State, the
Government does not possess unfettered power while discharging its constitutional obligations. Every action of the State Government is subject to
judicial review to check the abuse of power or arbitrary exercise of power. Even if there is no statutory provision, of course, under the well defined
principle of judicial restraint, the Courts should loth to interfere with a matter where public interest is not involved.
A Constitution Bench of Hon''ble Supreme Court, in a case in Union of India (UOI) Vs. Col. J.N. Sinha and Another, , while considering the
dividing line between the administrative power and quasi-jucidial power has observed as under:
The dividing line between an administrative power and a quasi-Judicial power is quite thin and is being gradually obliterated. For determining
whether a power is an administrative power or a quasi-Judicial power one has to look to the nature of the power conferred, the person or persons
on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the
manner in which that power is expected to be exercised. Under our Constitution the rule of law pervades over the entire field of administration.
Every organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the
jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the
State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing
but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a
judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-Judicial power has been
undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial
power. The following observations of Lord Parker C.J. in Regina v. Criminal Injuries Compensation Board, Ex Parte Lain are instructive.
.........We have as it seems to me reached the position when the ambit of certiorari can be said to cover every case in which a body of persons of a
public as opposed to a purely private or domestic character has to determine matters affecting subjects provided always that it has a duty to act
judicially. Looked at in this way the board in my judgment comes fairly and squarely, within the jurisdiction of this Court. It is as Mr. Bridge said,
''a servant of the Crown charged by the Crown, by executive instruction, with the duty of distributing the bounty of the Crown.'' It is clearly,
therefore, performing public duties.
38. The power of judicial review has been considered by a Division Bench of this Court, of which one of us (Hon''ble Devi Prasad Singh, J.) was a
member, in a case in Dhirendra Kumar Rai v. State of U.P., 2010 (28) LCD 1248 and it has been held that where the State does something which
is per se illegal, arbitrary or for extraneous reasons or consideration or for political end, in a democratic polity, the higher judiciary has got ample
power to interfere with the decision so taken.
39. In the cases in State of U.P. v. Mohd. Nooh, 1958 SC 86; S. Pratap Singh Vs. The State of Punjab, ; Fashih Chaudhary v. D.G.
Doordarshan, 1989 (1) SCC 189 ; M.I. Builders Pvt. Ltd. Vs. Radhey Shyam Sahu and Others, ; their Lordships of Hon''ble Supreme Court held
that if the action of the authority is in excess of the authority conferred by statute or it is without jurisdiction or there is abuse or misuse of power or
the decision is unlawful or to outcome, no reasonable authority could have come, the Court may interfere with such action. It has been further held
that mere fact that there is denial of allegation of mala fide or oblique motive or of its having taken into consideration improper or irrelevant matter,
it does not preclude the Court from enquiring into the truth of allegations leveled against the authority and granting appropriate relief to the
aggrieved party.
40. In Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, , where the controversy was with regard to termination of service of
Government counsels of the State of U.P., by a stoke of pen, Hon''ble Supreme Court held as under:
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.
18. The scope of judicial review permissible in the present case, does not require any elaborate consideration since even the minimum permitted
scope of judicial review on the ground of arbitrariness or unreasonableness or irrationality, once Article 14 is attracted, is sufficient to invalidate the
impugned circular as indicated later. We need not, therefore, deal at length with the scope of judicial review permissible in such cases since several
nuances of that ticklish question do not arise for consideration in the present case.
19. Even otherwise and sans the public element so obvious in these appointments, the appointment and its concomitants viewed as purely
contractual matters after the appointment is made, also attract Article 14 and exclude arbitrariness permitting Judicial review of the impugned State
action. This aspect is dealt with hereafter.
28. Even assuming that it is necessary to import the concept of presence of some public element in a State action to attract Article 14 and permit
judicial review, we have no hesitation in saying that the ultimate impact of all actions of the State or a public body being undoubtedly on public
interest, the requisite public element for this purpose is present also in contractual matters. We, therefore, find it difficult and unrealistic to exclude
the State actions in contractual matters, after the contract has been made, from the purview of judicial review to test its validity on the anvil of
Article 14.
29. It can no longer be doubted at this point of time that Article 14 of the Constitution of India applies also to matters of Governmental policy and
if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional.
See Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, and Kasturi Lal Lakshmi Reddy, Represented by its Partner
Shri Kasturi Lal, Jammu and Others Vs. State of Jammu and Kashmir and Another, . In Col. A.S. Sangwan Vs. Union of India (UOI) and Others,
, while the discretion to change the policy in exercise of the executive power, when not trammeled by the statute or rule, was held to be wide, it
was emphasised as imperative and implicit in Article 14 of the Constitution that a change in policy must be made fairly and should not give the
impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action
qualifying for its validity on this touchstone, irrespective of the field of activity of the State, has long been settled. Later decisions of this Court have
reinforced the foundation of this tenet and it would be sufficient to refer only to two recent decisions of this Court for this purpose.
A Constitution Bench of Hon''ble Supreme Court in a case in Kartar Singh Vs. State of Punjab, , held that whenever a citizen approaches the
Court that the State machinery is abusing power and action is in violation of constitutional guarantee, then it is obligatory to higher judiciary to
interfere under the process of judicial review. Relevant portion from the judgment of Kartar Singh (supra) is reproduced as under:
The jurisdiction possessed by it before coming into force of the Constitution was preserved by Article 225 and by Articles 226 and 227 an
extraordinary jurisdiction was conferred on it to ensure that the subordinate authorities act not only in accordance with law but they also function
within the framework of law. That jurisdiction of the High Court has not been taken away and in fact could not be taken away by legislation. In
England even in absence of Constitution whenever an attempt was made by Parliament to provide that the order was final and no writ of certiorari
would lie the High Court always struck down the provision. Since the High Court under the Constitution is a forum for enforcement of fundamental
right of a citizen it cannot be denied the power to entertain a petition by a citizen claiming that the State machinery was abusing its power and was
acting in violation of the constitutional guarantee. Rather it has a constitutional duty and responsibility to ensure that the State machinery was acting
fairly and not on extraneous considerations. In State of Maharashtra v. Abdul Hamid Haji Mohammed this Court after examining the principle laid
down in State of Haryana v. Bhajan Lal and Paras Ram v. State of Haryana, held that the High Court has jurisdiction to entertain a petition under
Article 226 in extreme cases. What are such extreme cases cannot be put in a strait-jacket.
41. In a case in State of N.C.T. of Delhi and Another Vs. Sanjeev @ Bittoo, , their Lordships of Supreme Court held that illegality in decision
making process coupled with irrationality and perversity makes out a case for interference under the process of judicial review. In case an
administrative or judicial power is exercised on non-consideration or non-application of mind to relevant factors, such exercise shall be vitiated. To
quote relevant portion:
If the power has been exercised on a non-consideration or non-application of mind to relevant factors, the exercise of power will be regarded as
manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently
erroneous, such exercise of power will stand vitiated.
42. In Center for Public Interest Litigation and Another Vs. Union of India (UOI) and Another, , the Hon''ble Supreme Court reiterated the settled
proposition of law that every administrative action should be reasonable and fair. Hon''ble Supreme Court further held that the procedure adopted
by the Administrative body should not be only fair but also seems to be just, fair and proper.
43. Hon''ble Supreme Court in a case in Dwarka Nath Vs. Income Tax Officer, Special Circle D-ward, Kanpur and Another, , while pronouncing
the scope of Article 226 of constitution of India held as under:
para 4. We shall first take the preliminary objection, for if we maintain it, no other question will arise for consideration. Article 226 of the
constitution reads:
........every High Court shall have power throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, or nay of them, for the enforcement of any of the rights conferred by Part III and for any other
purpose.
This article is couched in comprehensive phraseology land it ex facie confers a wide power on the High Courts to reach injustice wherever it is
found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority
against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England: but the scope of those writs also is
widened by the use of the expression ""nature"" for the said expression does not equate the writs that can be issued in India with those in England,
but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other the prerogative writs. It enables the
High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the
empower of the high Court under Article 226 of the constitution with that of the English Courts to issued prerogative writs is to introduce the
unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast
country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. To say this is not to say that the
High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and others may be evolved to direct the article
through defined channels. This interpretation has been accepted by this Court in T.C. Basappa Vs. T. Nagappa and Another, and P.J. Irani Vs.
The State of Madras, .
44. In the famous Minerva Mills Ltd. and Others Vs. Union of India (UOI) and Others, , the Apex Court held that the High Court can substitute its
own finding in case an action is found to be wrong. The controversy was relating to Government right to exercise power under Article 352 of the
Constitution of India but the Supreme Court had given emphasis to exercise power to preserve the constitutional rights of the people of country.
For convenience relevant portion from Minerva Mill case (supra) is reproduced as under:
Para 79 Three Articles of our Constitution, and only three stand between the heaven of freedom into which Tagore wanted his country to awake
and the abyss of unrestrained power. They are Articles 14, 19 and 21. Article 31C has removed two sides of that golden triangle which affords to
the people of this Country an assurance that the promise held forth, by the Preamble will be performed by ushering an egalitarian era through the
discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the
individual.
45. In a case in Devilal Modi, Proprietor, M/s. Daluram Pannalal Modi Vs. Sales Tax Officer, Ratlam and Others, , Hon''ble Supreme Court held
that an application under Article 226 of Constitution of India cannot be refused on mere ground that application is not in proper form. The relevant
portion from the Apex Court judgment is reproduced as under:
There can be no doubt that the fundamental rights guaranteed to the citizens are a significant feature of our Constitution and the High Courts under
Article 226 are bound to protect these fundamental rights. There can also be no doubt that if a case is made out for the exercise of its jurisdiction
under Article 226 in support of a citizen''s fundamental rights, the High Court will not hesitate to exercise that jurisdiction.
46. While interpreting the word, ""any other purpose"", used in Article 226 of the Constitution of India, Hon''ble Supreme Court in a case in
Fertilizer Corporation Kamgar Union (Regd.), Sindri and Others Vs. Union of India (UOI) and Others, , held that the difference in the phraseology
of two Articles i.e. 226 and 32 is that whereas the right guaranteed by Article 32 can be exercised for the enforcement of fundamental rights only,
the right conferred by Article 226 can be exercised not only for the enforcement of fundamental rights but for any other purpose.
47. In a case in Union of India (UOI) and Another Vs. Vicco Laboratories, . Hon''ble Supreme Court reiterated the settled proposition of law that
where a show-cause notice is issued either without jurisdiction or in an abuse process of law, certainly in that case, the writ Court would not
hesitate to interfere even at the stage of issuance of show-cause notice.
48. Since almost six decades, Wednesbury''s principle (Associated Provincial Picture Houses Limited v. Wednesbury Corp, (1948) 1 K.B. 223)
has been followed.
49. The doctrine of proportionality originated from Prussian administrative law spread all over the world. Moshe Cohen-Eliya and Iddo Porat,
Dean and Professor of Law at the Academic Center of Law and Business School of Law wrote an article under title, ""Proportionality and Culture
of Justification"" published in the American Journal of Comparative Law (page 463) and considered the origin and effect of proportionality. To
quote:
The spread of proportionality has been well documented, and is an undisputed fact. The principle of proportionality, which originated in Prussian
administrative law, was incorporated in German constitutional law after World War II, and later was adopted by the European Court of Human
Rights. This helped spreading the doctrine throughout continental Europe (including Eastern Europe), as well as to the United Kingdom. Today, it
forms part of constitutional legal analysis in many non-European countries, including Canada, Israel, South Africa, Australia, New Zealand, Brazil,
India, and South Korea. The U.S. Supreme Court is almost the sole exception to this phenomenon, although recently there have been some
attempts to introduce a form of this doctrine into U.S. Constitutional law as well.
(Vol. 59 Number 2 Spring 2011, American Journal of Comparative Law)
Learned author further took note of the fact that the higher judiciary almost in any democratic country of the world has linked the proportionality
with justification. The culture of justification requires that the Governments should provide substantive justification for all their actions, in terms of
rationality and reasonableness which has been accepted by Hon''ble Supreme Court of India in catena of cases. The author further noted that in
Germany, there is further gradual shift from an emphasis on the less open-ended and more formalistic subtests of rationality and necessity to the
more open-ended third subtest of proportionality, i.e., balancing. After considering the law evolved by different countries of the world, the author
observed:
When Judges weigh the conflicting rights and interests, they measure not only the extent of harm to each value but also make (at least implicit)
judgments regarding the relative importance of each of the conflicting values.
While defending the culture of justification to evaluate State action, learned author observed:
By emphasizing the need to justify every decision in term of its reasonableness or correctness, it expresses optimism with regard to the human and
judicial capability to distinguish right from wrong. The judiciary in particular is regarded as an institution that has the tools to impose rationality and
reasonableness on other authorities, since it is relatively immune from populism and therefore is more attuned to principled and analytical reasoning.
However, the Indian Supreme Court has gone a step forward to check abuse of process of law by the State and its authorities emphasizing for full
bloom judgment.
50. However, there appears to be further advancement in the matter of judicial review throughout the world to keep pace with time (whimsical and
arbitrary use of power by legislature and bureaucrat). The corrupt practices, involvement of extraneous reasons and considerations in the
administration had incited the higher judiciary all over the world to evolve new principle of law to secure public interest in democratic polity.
In Judicial Review by De Smith, learned author while criticising the Wednesbury''s formulation observed:
Apart from its vagueness, the Wednesbury formulation has been challenged in recent years for the reason that it depicts ""unreasonableness"" as
particularly extreme behaviour, such as acting in bad faith, or a decision which is ""perverse"", or ""absurd"" implying that the decision-maker has
taken leave of his senses"". In the GCHQ case, in the famous passage where he formulated the ""grounds"" of judicial review, Lord Diplock
preferred to use the term ""irrational"", which he described as applying to ""a decision which is so outrageous in its defiance of logic or accepted
moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it"". This definition is at least
candid in its acknowledgement that Courts can employ both logic and accepted moral standards as criteria by which to assess official decisions,
but it does not assist in elucidating any more specific categories of legally unacceptable substantive decisions. In addition, as has been pointed out,
the term irrationality has the drawback that it casts doubt on the mental capacity of the decision-maker, whereas many decisions which fall foul of
this ground of review have been coldly rational.
Learned author (supra) has considered various grounds for interference through judicial review which includes statutory reasonableness,
unreasonable process, violation of common law or constitutional principles, oppressive decisions, inadequate evidence, mistake of fact, mixed
question of law and facts, decisions unsupported by substantial evidence, irrational decision etc.
51. While considering oppressive decisions, in De Smith''s Judicial Review, learned author observed that the official decisions may be held
unreasonable when they are unduly oppressive. To reproduce relevant portion.
official decisions may be held unreasonable when they are unduly oppressive because they subject the complainant to an excessive hardship or an
unnecessarily onerous infringement of his rights or interests. As we shall see, the principle of proportionality directs itself to the evaluation of the
permitted degree of infringement of rights or interests. However, whether or not proportionality is expressly applied, this aspect of substantive
review is well known to English law. As Laws L.J. has said:
Clearly a public body may choose to deploy powers it enjoys under statute in so draconian a fashion that the hardship suffered by affected
individuals in consequence will justify the Court in condemning the exercise as irrational and perverse.
The focus of attention in these cases will be principally the impact of the decision upon the affected person. The outcome or end-product of the
decision-making process will thus be assessed, rather than the way the decision was reached (although the factors taken into account in reaching
the decision may also be or may be assumed to be-incorrectly weighed). Since the claim is essentially abuse of power, in the sense of excessive
use of power, each case must be considered in the context of the nature of the decision, the function of the particular power and the nature of the
interests or rights affected.
52. Hon''ble Supreme Court in some of the recent cases has departed from Wednesbury principle and held that the Court while proceeding with
judicial review may consider later development of law and pass appropriate order to do complete justice between the parties vide Nikhil Merchant
Vs. Central Bureau of Investigation and Another, .
53. In a recent case in Babubhai Jamnadas Patel Vs. State of Gujarat and Others, , their Lordships of Hon''ble Supreme Court held that
appropriate direction may be issued to do complete justice between the parties. It shall be appropriate to reproduce relevant portion:
46. The Courts, and in particular the High Courts and the Supreme Court, are the sentinels of justice and have been vested with extraordinary
powers of judicial review and supervision to ensure that the rights of the citizens are duly protected. The Courts have to maintain a constant vigil
against the inaction of the authorities in discharging their duties and obligations in the interest of the citizens for whom they exist. This Court, as also
the High Courts, have had to issue appropriate writs and directions from time to time to ensure that the authorities performed at least such duties as
they were required to perform under the various statutes and orders passed by the administration.
54. In one another judgment in The Commissioner of Police and Others Vs. Syed Hussain, , their Lordships of Hon''ble Supreme Court have held
that while exercising power of judicial review, the Court may not merely follow the Wednesbury principle but now adjudication involves a full
blown merit Judgment. To reproduce para 12 of the judgment:
Thus, even assuming that a time has come where this Court can develop ""administrative law"" by following the recent decisions of the House of
Lords, we are of the opinion it is not one of such cases where the doctrine of proportionality should be invoked. In ''Ex p Daly'' (supra) it was held
that the depth of judicial review and the deference due to the administrative discretion vary with the subject-matter. It was further stated: (All ER p.
447, para 32)
It may well be, however, that the law can never be satisfied in any administrative field merely by a finding that the decision under review is not
capricious or absurd.
As for example in Huang and others v. Secretary of State for the Home Department, referring to R. v. Secretary of State of the Home
Department, ex. P. Dale, it was held that in certain cases, the adjudicator may require to conduct a judicial exercise which is not merely more
intrusive than Wednesbury, but involves a full-blown merits judgment, which is yet more than Ex p. Daly requires on a judicial review where the
Court has to decide a proportionality issue.
55. In State of U.P. Vs. Sheo Shanker Lal Srivastava and Others, , again Hon''ble Supreme Court has held that the judicial review may require
full blown merit judgment. The principle involved in Syed Hussain has been reiterated.
56. In another case in Jitendra Kumar and Others Vs. State of Haryana and Another, , Wednesbury doctrine has been considered and Hon''ble
Supreme Court held that now it is on terminal decline. Their Lordships of Hon''ble Supreme Court held that the doctrine of unreasonableness is
giving way to the doctrine of proportionality (para 63).
57. In a case in Sushila Chemicals Pvt. Ltd. and Another Vs. Bharat Coking Coal Ltd. and Others, , with regard to interference in contractual
matter, Hon''ble Supreme Court has reiterated the principle that when a contract is between the Government and the private citizen, then the Court
has right to see whether the State action is arbitrary or unreasonable and hence there may be interference under the process of judicial review. To
reproduce relevant portion:
It is settled by a series of decisions of this Court starting from Kumari Shrilekha Vidyarthi v. State of U.P., that even in the domain of contractual
matters, the High Court can entertain a writ petition on the ground of violation of Article 14 of the Constitution when the impugned act of the State
or its instrumentality is arbitrary, unfair or unreasonable or in breach of obligations under public law.
58. In a case in Delhi Development Authority, N.D. and Another Vs. Joint Action Committee, Allottee of SFS Flats and Others, , where the
matter cropped up with regard to imposition of extra charges not contemplated in original offer and defence was taken with regard to
impermissibility of the judicial review being contractual matter, Hon''ble Supreme Court held that where a contract emanates from a statute or is
otherwise governed by the provision thereof the superior Court can exercise the power of judicial review. With regard to policy decision, their
Lordships held that it shall not be beyond the pale of judicial review. To reproduce relevant portion:
64. An executive order termed as a policy decision is not beyond the pale of judicial review. Whereas the superior Courts may not interfere with
the natty grittiest of the policy, or substitute one by the other but it will not be correct to contend that the Court shall like its judicial hands off, when
a plea is raised that the impugned decision is a policy decision. Interference therewith on the part of the superior Court would not be without
jurisdiction as it is subject to judicial review.
65. Broadly, a policy decision is subject to judicial review on the following grounds:
(a) if it is unconstitutional;
(b) if it is de hors the provisions of the Act and the Regulations;
(c) if the delegatee has acted beyond its power of delegation;
(d) if the executive policy is contrary to the statutory or a larger policy.
59. In a case in Shimnit Utsch India Pvt. Ltd. and Another Vs. West Bengal Transport Infrastructure Development Corporation Ltd. and Others, ,
a Bench of three Hon''ble Judges of Hon''ble Supreme Court after considering a catena of earlier judgments of Supreme Court held that a change
in policy may be tested by judicial review in case it violate the test of reasonableness under Wednesbury''s principle and also change in the policy is
otherwise arbitrary, irrational and perverse. Their Lordships held that the Government must have a reasonable play in its joints as a necessary
concomitant for an administrative body in a administrative sphere. The Court would interfere with the administrative policy decision in case it is
arbitrary, discriminatory, mala fide or actuated by bias (paras 34 to 48). Interference with the policy decision as well as ministerial matter under the
principle of rationality, Justness, fairness, reasonableness has been reiterated by Hon''ble Supreme Court in the case in Bajaj Hindustan Ltd. Vs.
Sir Shadi Lal Enterprises Ltd. and Another, .
60. In Akhil Bhartiya Upbhokta Congress Vs. State of Madhya Pradesh and Others, , Hon''ble Supreme Court has reiterated the principle flowing
from Srilekha Vidyarthi (supra) with regard to interference in policy decisions or administrative matter. Their Lordships have relied upon the case in
LIC of India and Another Vs. Consumer Education and Research center and Others, , which is reproduced as under:
Similarly, in LIC of India and Another Vs. Consumer Education and Research center and Others, , the Court negatived the argument that exercise
of executive power of the State was immune from judicial review and observed: (SCC pp. 498 and 500 paras 23, 27 and 28)
23. Every action of the public authority or the person acting in public interest or its acts give rise to public element, should be guided by public
interest. It is the exercise of the public power or action hedged with public element becomes open to challenge. If it is shown that the exercise of
the power is arbitrary, unjust and unfair it should be no answer for the State, its instrumentality, public authority or person whose acts have the
insignia of public element to say that their actions are in the field of private law and they are free to prescribe any conditions or limitations in their
actions as private citizens, similicitor, do in the field of private law. Its actions must be based on some rational and relevant principles. It must not
be guided by traditional or irrelevant considerations.
* * * *
26. This Court has rejected the contention of an instrumentality or the State that its action is in the private law field and would be immune from
satisfying the tests laid under Article 14. The dichotomy between public law and private law rights and remedies, though may not be obliterated by
any straight jacket formula, it would depend upon the factual matrix. The adjudication of the dispute arising out of a contract would, therefore,
depend upon facts and circumstances in a given case. The distinction between public law remedy and private law filed cannot be demarcated with
precision. Each case will be examined on its facts and circumstances to find out the nature of the activity, scope and nature of the controversy. The
distinction between public law and private law remedy has now become too thin and practicably obliterated.
27. In the sphere of contractual relations the State, its instrumentality, public authorities or those whose acts bear insignia of public element, action
to public duty or obligation are enjoined to act in a manner i.e. fair, just and equitable, after taking objectively all the relevant options into
consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good and in general public interest and
it must not take any irrelevant or irrational factors into consideration or arbitrary in its decision. Duty to act fairly is part of fair procedure envisaged
under Articles 14 and 21. Every activity of the public authority or those under public duty or obligation must be informed by reason and guided by
the public interest.
61. In Humanity and Another Vs. State of West Bengal and Others, , again, Hon''ble Supreme Court ruled that the Government cannot act in a
manner to benefit a private party as it would be contrary to the public interest. The Court has ample power under the process of judicial review to
interfere with the State action in case it is arbitrary, capricious and against public interest.
62. In ITC Ltd. Vs. State of Uttar Pradesh and Others, , their Lordships of Hon''ble Supreme Court held that where any authority makes
regulations and issues policy and procedures, they are entitled to be followed and complied with. They cannot be ignored or avoided unless
superseded or amended. As far as the law is in force, they are required to be obeyed by the authority.
63. In a recent judgment and order dated 11.4.2011 passed in Civil Appeal No. 10660 of 2010 Center for PIL and others v. Union of India and
others, Hon''ble Supreme Court reiterated the Court''s power of judicial review and held that the appointment of Special Public Prosecutor should
be with utmost fairness and objectivity and in appropriate case, in case the Government does not proceed in a just and fair manner, the Court may
interfere keeping in view the broader principle to maintain the fairness in the appointment of prosecuting counsel. Hon''ble Supreme Court directed
to appoint a senior advocate as counsel in a pending matter. Their Lordships held that in democratic polity, no one may claim prerogative. To
quote relevant portion:
We are of the view that the expression ""prerogative"" cannot be used in the context of a statutory provision. Under our Constitutional and statutory
framework, there is nothing known as prerogative. In this connection, we may usefully recall what was said by the eminent jurist N.A. Palkhivala in
his treatise ""Our Constitution: Defaced and Defiled"" (Macmillan: December 1974). The relevant portion reads as follows:
Our Constitution recognizes not prerogative whatsoever; it recognizes merely rights, duties and discretions. The difference between ""prerogative:
and ""discretion"" is clear. A person who has a prerogative can act arbitrarily or irrationally and yet his decision must be treated as legal and valid.
On the other hand, if a person has the discretion, and not the prerogative, to make a decision, the discretion can only be exercised fairly and
reasonably; otherwise his act is void on the ground that there was no valid exercise of discretion in the eyes of law. (page 103)
We are in respectful agreement with this view.
64. Mr. R.K. Singh, learned Senior Counsel representing the State of U.P. has relied upon the cases in State of U.P. and Others Vs. Rakesh
Kumar Keshari and Another, ; Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, ; Dharam Raj Vs. State of U.P. and
Others, ; Union of India and Others Vs. S.L. Abbas, and submits that the writ petitions are not maintainable.
65. In the case of Rakesh Kumar Keshari (supra), Hon''ble Supreme Court (decided by two Hon''ble Judges) had ruled that the appointment of
Public Prosecutor or District Government Counsel is of professional in nature and no status is conferred on the incumbent. The District
Government Counsels have no legally enforceable right as such and the action of the State in not renewing the tenure can be subjected to judicial
scrutiny inter alia on the ground that the same was arbitrary. Their Lordships held that it is not open for the respondents to file writ petition under
Article 226 of the Constitution to compel the State to utilise their services as advocates irrespective of choice of the State. However, in the same
case, Hon''ble Supreme Court held that the State action shall be subject to judicial review on the ground of arbitrariness and on ""Wednesbury
unreasonableness"". Their Lordships observed, to quote:
34..........................Article 14, however, in a given case, may be attracted to a limited extent if the State fails to discharge its public duty or acts in
defiance, deviation and departure of the principles of law.
66. In the present case, case set up by the respondents is founded on the allegation with regard to arbitrary exercise of power by the State
Government. Hence, hit by Article 14 of the Constitution of India.
67. In Jasbhai Motibhai Desai (supra), a Constitution Bench of Hon''ble Supreme Court ruled that though in view of Dwarka Nath Vs. Income
Tax Officer, Special Circle D-ward, Kanpur and Another, , Article 226 has been couched in a comprehensive phraseology to reach injustice
wherever it is found but the discretionary jurisdiction conferred under Article 226 of the Constitution should be exercised with well recognised rules
of practice. Their Lordships held that only aggrieved person may approach for judicial review of the State action. However, their Lordships further
held that the expression ""aggrieved person"" denoes an elastic, and to an extent, an elusive concept. It cannot be confined within the bounds of a
rigid, exact and comprehensive definition. At best, its features can be described in a broad tentative manner. Their Lordships observed; to quote:
13.................Its scope and meaning depends on diverse, variable factors such as the content and intent of the stature of which contravention is
alleged, the specific circumstances of the case, the nature and extent of the petitioner''s interest, and the nature and extent of the prejudice or injury
suffered by him.
68. In the same case, Hon''ble Supreme Court ruled that a person shall be aggrieved in case the decision is materially adverse to him.
Even if the petitioners'' case is considered under the aforesaid principle, the writ petitions seems to be maintainable since they have alleged that they
have been deprived of their office in violation of the provisions contained in even unamended L.R. Manual and the impugned Government Order is
against the aims and object of Section 24 read with Section 25A of Code of Criminal Procedure.
69. The case of Dharam Raj (supra) passed by a Division Bench of this Court had defined the words, ""aggrieved party"" relying upon the case of
Jasbhai Motibhai Desia (supra) and does not seem to be applicable under the facts and circumstances of the present case.
70. The case of S.L. Abbas relates to the Government Order regulating the transfer of Government employees whereby their Lordships held that it
is directory in nature and transfer being an incident of service cannot be questioned on account of violation of the Government Order. The case of
S.L. Abbas (supra) does not seem to be applicable under the facts and circumstances of the present case.
Accordingly, the cases relied upon by the learned counsel for the State do not seem to be taken a different view than what has been discussed
hereinabove.
71. It is a common ground in all the bunch of writ petitions that the impugned Government Order suffers from vice of arbitrariness, irrational,
unreasonableness and in violation of undertaking given before Hon''ble Supreme Court in the case of John Mal (supra). It is further stated that the
policy decision taken by the State Government to amend relevant provision of the L.R. Manual by the impugned order is an incident of arbitrary
exercise of power for extraneous consideration and reasons and is not in public interest and hit by Article 14 of the Constitution of India. Hence,
the objection raised by Shri H.P. Srivastava, learned Addl. Chief Standing Counsel with regard to maintainability of the writ petitions is overruled.
It is open under power of judicial review to this Court to test the impugned Government Order at the touch stone of Article 14 of the Constitution
of India.
72. In some of the writ petitions, the plea has been taken that while making appointment even in pursuance to amended provision contained in
amended L.R. Manual, the procedure prescribed therein has not been followed for extraneous reasons which shall be dealt with at appropriate
place. Accordingly, the writ petitions may not be thrown out only on the ground that the impugned Government Order is merely executive
instructions issued in pursuance to policy decision taken by the State Government, more so when it emanates from the statutory provision
contained in Section 24 of the Cr.P.C.
(II) ROLE OF PUBLIC PROSECUTOR
73. Under Sections 24 and 25 of the Code of Criminal Procedure, two categories of Public Prosecutors exist in the State of U.P., the first in the
regular cadre called Prosecuting Officer or Asstt. Prosecuting Officer governed by rules framed under Article 309 of the Constitution. This branch
discharge its obligation in the different subordinate magisterial Courts under the supervision of the Director of Prosecution.
The second wing is District Government Counsel appointed for a specified period in pursuance to L.R. Manual which is the compilation of
Government Orders issued from time to time regulating the service conditions of the Government Counsels working in the Sessions Court and High
Court. The role of Public Prosecutor is not only to defend the State Government but also the private citizens in general. In criminal matters, though
they appear on behalf of the State Government but they defend the complainant of the criminal case to prosecute the accused.
74. Whenever the petitions are filed or cases are instituted against the Government or the High Court, it is they who defend the State Government
or the judiciary to assist the administration of justice. Thus, it is misdemeanour to say that the State Government counsels represent the State only.
They possess substantial place in administration of justice and as and when required, it is they who represent all three wings of the Government, i.e.
Legislature, bureaucracy and judiciary independently or collectively. Devaluation in the appointment of District Government Counsels adversely
affect the cause of Legislature, judiciary as well as bureaucracy depending upon the facts and circumstances of the case.
75. In Mahadeo Vs. Shantibhai and Others, , Hon''ble Supreme Court observed as under:
10. If by ""office"" is meant the right and duty to exercise an employment or a position to which certain duties are attached as observed by this
Court, it is difficult to see why the engagement of the appellant in this case under the letter of February 6, 1962 would not amount to the
appellant''s holding an office. By the said letter he accepted certain obligations and was required to discharge certain duties. He was not free to
take a brief against the Railway Administration. Whether or not the Railway Administration thought it proper to entrust any particular case or
litigation pending in the Court to him, it was his duty to watch all cases coming up for hearing against the Railway Administration and to give timely
intimation of the same to the office of the Chief Commercial Superintendent. Even if no instructions regarding any particular case were given to him,
he was expected to appear in Court and obtain an adjournment. In effect this cast a duty on him to appear in Court and obtain an adjournment so
as to protect the interests of the Railway. The duty or obligation was a continuing one so long as the railway did not think it proper to remove his
name from the panel of Railway lawyers or so long as he did not intimate to the Railway Administration that he desired to be free from his
obligation to render service to the Railway. In the absence of the above he was bound by the terms of the engagement to watch the interests of the
Railway Administration, give them timely intimation of cases in which they were involved and on his own initiative apply for an adjournment in
proceedings in which the Railway had made no arrangement for representation. It is true that he would get a sum of money only if he appeared but
the possibility that the Railway might not engage him is a matter of no moment. An office of profit really means an office in respect of which a profit
may accrue. It is not necessary that it should be possible to predicate of a holder of an office of profit that he was bound to get a certain amount of
profit irrespective of the duties discharged by him.
76. In Mundrika Prasad Singh v. State of Bihar, (1979) 4 SCC 710, their Lordships of Hon''ble Supreme Court have noted the importance of
Public Prosecutor. Their Lordships held that the Government pleader is more than an advocate for litigant. He holds a public office. It is in the
interest of State to engage competent lawyers without hunting for political parsons regardless of capabilities. To quote relevant portion:
14. It is heartening to notice that the Bihar Government appoints these lawyers after consultation with the District Judge. It is in the best interest of
the State that it should engage competent lawyers without hunting for political partisans regardless of capability. Public offices and Government
Pleadership is one shall not succumb to Tammany Hall or subtler spoils system, if purity in public office is a desideratum. After all, the State is
expected to fight and win its cases and sheer patronage is misuse of power. One effective method of achieving this object is to act on the advice of
the District Judge regarding the choice of Government pleaders. When there were several thousand cases in the Patna Courts and hundreds of
cases before a plurality of tribunals, it was but right that Government did not sacrifice the speedy conduct of cases by not appointing a number of
pleaders on its behalf, for the sake of the lucrative practice of a single Government Pleader. It is inconceivable how he would have discharged his
duties to the Court and to his client if this crowd of land acquisition cases were posted in several Courts more or less at the same time.
Adjournment to suit advocates'' convenience becomes a bane when it is used only for augmentation of counsel''s income, resisting democratisation
and distributial justice within the profession. These principles make poor appeal to those who count, which is a pity.
15. Coming to the larger submission of counsel for the petitioner, we do recognise its importance in our era of infiltration of politicking even in
forbidden areas. A Government pleader is more than an advocate for a litigant. He holds a public office. We recall with approval the observations
a Division Bench of the Madras High Court made in A. Ramachandran Vs. A. Alagiriswami, Govt. Pleader High Court, Madras and Another, and
regard the view there, expressed about a Government Pleader''s office, as broadly correct even in the Bihar setup.
...the duties of the Government Pleader, Madras are duties of a public nature. Besides, as already explained the public are genuinely concerned
with the manner in, Which a Government Pleader discharges his duties because, if he handles his cases badly, they have ultimately to foot the bill.
The Rajasthan case does not take into account all the aspects of the matter.
(36) The learned Advocate General argued that the Government Pleader, Madras is only an agent of the Government, that his duties are only to
the Government who are his principles and that he owes no duty to the public at all and that for that reason he would not be the holder of a Public
Office.
(37) It is difficult to accept this view. The contention of the learned Advocate General may have been less untenable if the duties of the
Government Pleader were merely to conduct in Courts cases to which Government are a party. But, as the rules stand, he has a number of other
duties to discharge. Besides, even if his only duty is the conduct of cases in which Government have been impleaded, still as explained more than
once before the public are interested in the manner in which he discharges his duties.
(90) I am clearly of opinion that having regard to the fact that the Government Pleader of this Court is employed by the State on remuneration paid
from the public exchequer and having regard to the various functions and duties to be performed by him in the due exercise of that office, most of
which are of an independent and responsible character, the office must be held to be a public office within the scope of a quo warranto
proceeding.
I consider that the most useful test to be applied to determine the question is that laid down by Erle, J. in. The three; criteria are, source of the
office, the tenure and the duties. I have applied that test and I am of opinion that the conclusion that the office is a public office is irresistible.
16. In this view, ordering about a Government Pleader is obnoxious but nothing savouring of such conduct is made out although we must enter a
caveat that Governments under our Constitution shall not play with Law Offices on political or other impertinent considerations as it may affect the
legality of the action and subvert the rule of law itself. After all, a Government Pleader and, in a sense, every member of the legal profession, has a
higher dedication to the people.
77. In the case of Kumari Srilekha Vidyarthi (supra), Hon''ble Supreme Court again noted with its anxiety to maintain the purity in the system for
appointment of District Government Counsels and reiterated the observation made by Hon''ble Supreme Court in the case of Mudrika Prasad
Singh (supra) and one earlier judgment in Mahadeo Vs. Shantibhai and Others, and held that office or post of District Government Counsels has
public element. Their Lordships held that there is difference between private contract and contractual appointment by the State Government.
Private parties are only concerned with their personal interest whereas the State while exercising its power and discharging its function acts
indubitably, as is expected of it, for public good and in public interest The impact of every State action is also to secure the public interest, to
quote:
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 Article 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 Article 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 matters 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 Article 14 and contractual
obligations are alien concepts, which cannot co-exist.
21.............................
22. There is an obvious difference in the contracts between private parties and contracts to which the State is a party. Private parties are
concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as is
expected of it, for public good and in public interest. The impact of every State action is also on public interest. This factor alone is sufficient to
import at least the minimal requirements of public law obligations and impress with this character the contracts made by the State or its
instrumentality. It is a different matter that the scope of judicial review in respect of disputes falling within the domain of contractual obligations may
be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of
purely contractual disputes. However, to the extent, challenge is made on the ground of violation of Article 14 by alleging that the impugned act is
arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its
obligation to comply with the basic requirements of Article 14. To this extent, the obligation is of a public character invariably in every case
irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the
guarantee under Article 14 of non-arbitrariness at the hands of the State in any of its actions.
78. While holding that the wide sweep of Article 14 undoubtedly takes within its fold the impugned circular issued by the State of U. P. regulating
the appointment of District Government Counsels, their Lordships held that the Government can exercise power only for public interest and the
appointment must be apolitical.
79. In State of U.P. and others Vs. U.P. State Law Officers Association and others, , Hon''ble Supreme Court has reiterated the ratio of Shrilekha
Vidyarthi (supra). Their Lordships held that the legal profession is essential service branch. The nature of service rendered by lawyers was private
till the Government and public body started engaging them to conduct cases on their behalf. Though the Government counsel work on full time role
of Government and public bodies and are describe their own law officer but being a responsible officer of the Court and an important adjunct of
the administration of justice, the lawyer also owes a duty to the Court as well as to the opposite side. He has to he fair to ensure that the justice is
done. He demeans himself if he acts merely as a mouthpiece of his client. The principle equally applies when a lawyer engaged by the Government
or a public body. It shall be obligatory on the part of the State to engage best talent. To quote relevant portion:
17. The Government or the public body represents public interests, and whoever is in charge of running their affairs, is no more than a trustee or a
custodian of the public interests. The protection of the public interests to the maximum extent and in the best possible manner is his primary duty.
The public bodies are, therefore, under an obligation to the society to take the best possible steps to safeguard its interests. This obligation imposes
on them the duty to engage the most competent servants, agents, advisors, spokesmen and representatives for conducting their affairs. Hence, in
the selection of their lawyers, they are duty-bound to make earnest efforts to find the best from among those available at the particular time. This is
more so because the claims of and against the public bodies are generally monetarily substantial and socially crucial with far-reaching
consequences.
18. The mode of appointment of lawyers for the public bodies, therefore, has to be in conformity with the obligation cast on them to select the
most meritorious. An open invitation to the lawyers to compete for the posts is by far the best mode of such selection. But sometimes the best may
not compete or a competent candidate may not be available from among the competitors. In such circumstances, the public bodies may resort to
other methods such as inviting and appointing the best available, although he may not have applied for the post. Whatever the method adopted, it
must be shown that the search for the meritorious was undertaken and the appointments were made only on the basis of the merit and not for any
other consideration.
80. A Full Bench of Allahabad High Court in a case in Queen-Empress v. Durga, ILR (1894-96) 16 All 84, pinpointed the role of Public
Prosecutor as under:
15............It is the duty of a Public Prosecutor to conduct the case for the Crown fairly. His object should be, not to obtain an unrighteous
conviction, but, as representing the Crown, to see that justice is vindicated: and, in exercising his discretion as to the witnesses whom he should or
should not call, he should bear that in mind. In our opinion, a Public Prosecutor should not refuse to call or put into the witness-box for cross-
examination a truthful witness returned in the calendar as a witness for the Crown, merely because the evidence of such witness might in some
respects be favourable to the defence. If a Public Prosecutor is of opinion that a witness is a false witness or is likely to give false testimony if put
into the witness-box, he is not bound, in our opinion, to call that witness or to tender him for cross-examination.
81. In a case in Shiv Kumar Vs. Hukam Chand and Another, , Hon''ble Supreme Court while considering the importance of Public Prosecutor
held that the State policy must strictly conform to fairness in the trial of an accused in a Sessions Court. The expected attitude of the Public
Prosecutor while conducting prosecution must be couched in fairness not only to the Court and to the investigating agencies but to the accused as
well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it.
82. Hon''ble Supreme Court in a case in Hitendra Vishnu Thakur and Others Vs. State of Maharashtra and Others, , again reiterated the
importance of Public Prosecutor and held that the Public Prosecutor is not the part of investigating agency but an independent statutory authority.
To quote relevant portion:
23.......................A public prosecutor is an important officer of the State Govt. and is appointed by the State under the Cr.P.C. He is not a part of
the investigating agency. He is an independent statutory authority. The public prosecutor is expected to independently apply his mind to the request
of the investigating agency before submitting a report to the Court for extension of time with a view to enable the investigating agency to complete
the investigation. He is not merely a post office or a forwarding agency. A public prosecutor may or may not agree with the reasons given by the
investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been
unnecessary, deliberate or avoidable delay in completing the investigation.............................
83. A Division Bench of this Court in a case in Suraj Narain Srivastava Vs. State of U.P. and Others, , has taken note of the fact that the Public
Prosecutors are paid from public exchequer. Hence, public has a vital stake in the administration of justice as well as prosecution branch to
safeguard their interest Relevant portion from the judgment of Mr. Suraj Narain Srivastava (supra) is reproduced as under:
28. In our view, a perusal of the passages, which we have extracted from the Janata Dal''s case, S.P. Gupta''s case, and Padma''s case (supra)
make it manifest that that where an injury is caused to public and there is dereliction of duty by the public authority and where the action of a public
authority is not within the four corners; of law it would be open for a citizen to prefer a writ petition under Article 226 of the Constitution of India
under the caption of Public Interest Litigation.
It should be remembered that State Counsel are paid from public exchequer wherein money comes through taxes realised from the public. It is
because of this, as also because public has a vital stake in the administration of justice that it would be open for a member of public to approach
this Court. It should be borne in mind that if persons lacking in the requisite of length prescribed by the L.R. Manual are appointed as State
Counsel, the State is likely to loose cases and the casualty would be the administration of justice.
In our view, where an appointee does not fulfill the mandatory requirement of years of practice his appointment becomes arbitrary and violative of
Article 14 of the Constitution of India and any person can challenge it through a Public Interest. Litigation under Article 226 of the Constitution of
India.
84. Another Division Bench of Allahabad High Court in a case in Virendra Pal Singh Rana Vs. State of U.P. and Others, , considered the role of
Public Prosecutor and held that it is very unhealthy practice prevailing in the State of U.P. to change the Public Prosecutor and terminate their
services to appoint new one without caring with regard to quality and honesty of the Government counsels who are officers of the Court. The
Courts want highly competent Government counsels to assist them in the administration of justice and it is only the District Judges who are aware
of the performance of the Government counsel. To quote relevant portion:
23. It may be mentioned that to be independent and to dispense high quality justice the Judges require highly Competent Government Counsels of
integrity and good knowledge of law. These factors can best be known to the District Judge and it is not to well known to the District Magistrate.
Of course, if some information/material comes before the District Magistrate he can forward it to the District Judge, but after considering it if the
District Judge still is of the opinion that the person should be appointed as Government Counsel or his term renewed then the opinion of the District
Judge must ordinarily prevail.
Against the judgment in Virendra Pal Singh Rana''s case (supra), a Special Leave Petition (Civil) No. 17362 of 2003 has been filed which is
pending before Hon''ble Supreme Court.
85. In Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and Others, , while emphasising for fair trial as pulse beat of Articles 14 and
21 of the Constitution of India, Hon''ble Supreme Court noted with serious concern the failure of prosecuting agency to assist the Court to find out
the truth in the State of Gujrat. Hon''ble Supreme Court cautioned the prosecuting agency to be fair, on one hand and on the other hand also
cautioned the Courts to be careful and not to follow the prosecution agency blindly in the present state of affairs in the country. To reproduce
relevant portion from the judgment of Zahira Habibulla H. Sheikh (supra):
43...............Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived
at. This becomes more necessary the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite
manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the
part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial
system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.
44........................................Object of the Section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the
defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the
evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of Section 311 but
only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to upheld the
truth.
86. The case of Zahira Habibulla H. Sheikh (supra) is an eye-opener where the prosecuting agency has failed in Gujerat to put the culprit to task
by prosecuting them in Court fairly and vigorously. The dilution of merit in the appointment of District Government Counsels who mainly deals with
criminal trial and also important civil matters shall deprive the Courts from able assistance and ultimate sufferer shall be public at large eroding the
peoples'' faith in administration of justice and being paid from public exchequer. The Government does not have got unfettered discretion to make
appointment on the post of District Government Counsel ignoring the meritorious members of bar. The post of District Government Counsel
emanates from Cr.P.C. And U.P. Z.A.L.R. Act and Code of Civil Procedure. They are statutory in nature. They are paid from public exchequer
to secure public interest and not the political interest.
87. It is often said that history repeat itself. Unfettered discretion given to the State Government to appoint counsels at the cost of merit shall be
subversive to constitutional goal and is against the constitutional mandate. Those who are honest, fair and meritorious member of bar should be
retained and incompetent or dead woods be ousted, should be guiding principle while considering the case of renewal or appointment of
Government counsels and not the political affiliation.
(III) APPOINTMENT AND RENEWAL
88. Para 7.03 of the L.R. Manual deals with inviting of applications. It provides that three months before arising of vacancy, the District Magistrate
of the district concerned shall inform the members of Bar inviting applications from those who possess professional experience of 10 years for
District Government Counsels and 7 years for Assistant Government Counsel and five years for subordinate District. The members of bar shall
inform with regard to their age, academic qualification, experience, proficiency in Hindi, Income Tax return of three preceding year and work
experience of two preceding years, duly verified by the Court and other professional experience. Under Clause 2 of para 7.03 of the L.R. Manual,
the members of bar of adjoining district may also apply through their District Magistrate with required information. There appears to be no change
in the amended and unamended portion of the L.R. Manual so far as procedure with regard to inviting the applications is concerned.
89. However, in the unamended para 7 Clause 3 of para 7.03 of the L.R. Manual, option was given to the District Magistrate to send the name of
any person who he think suitable and who has not given his particulars for consideration. A freedom has been given to the State Government to
appoint any person as it deem fit and proper with prior consent of the person concerned on the post of District Government Counsel. The power
which was earlier vested with the District Magistrate has been taken over by the State Government to decide the number of person it deems fit and
proper to appoint on the post of District Government Counsel but so far as mode of inviting application is concerned, it is the same. The advocates
of the same district or adjoining district will have got right to apply through the District Magistrate concerned in response to notice or advertisement
for the post.
90. Para 7.06(2) of the L.R. Manual provides that after expiry of period within which the application is invited, the District Magistrate shall send
his recommendation to the State Government. With regard to persons who are already holding the office under unamended provision of para
7.06(2), the District Magistrate shall send his opinion with consultation of District Judge with regard to work and conduct in form 9. Under the
amended provision, the District Magistrate (Collector) shall send his opinion with regard to work and conduct of the working Government
Counsels but without consulting the District Judge.
91. Renewal has been dealt with in para 7.08 of the L.R. Manual. Under the unamended L.R. Manual, renewal shall be done after receipt of
report with regard to work and conduct from the District Magistrate as well as District Judge. Under the amended provision, though the opinion
shall be obtained with regard to work and conduct of Government counsels but that will be from the District Magistrate and not the District Judge.
The opinion expressed by the District Magistrate under the amended provision must contain reason under Clause 2 of para 7.08 of L.R. Manual.
In case the Legal Remembrancer is agreed with the opinion of the District Magistrate with regard to work and conduct and integrity, then under
Clause 4 of para 7.08, he shall send recommendation to the Government to obtain renewal for the further period of three years. However, clause 4
further provides that the renewal shall not be a matter of right and the Government has got right to remove any District Government Counsel.
Clause 5 further provides that in case the Legal Remembrancer is not agreed with the opinion of the District Magistrate, then he shall place the
matter before the Government for appropriate orders and in case the Government takes a decision not to renew service of any person, then the
Legal Remembrancer shall make a request to the District Magistrate under para 7.03 to send the name of new candidates by following provision
given in para 7.03. For convenience, Clauses 4 and 5 of para 7.08 of the amended L.R. Manual by the impugned order is reproduced as under:
The aforesaid provisions are amended provisions in pursuance to impugned Government Order. Under amended provision, recommendation
should have been done by the District Magistrate and District Judge both.
92. From the combined reading of the aforesaid provisions contained in paras 7.03 and 7.08, it is evident that before proceeding to make fresh
recruitment in terms of L.R. Manual, it shall be incumbent on the Government to consider the cases of serving District Government Counsels for
renewal and only in case they are not found fit, new person may be appointed in accordance with the provisions contained in L.R. Manual.
93. According to para 7.07 of L.R. Manual, participation in political activity has been prohibited for District Government Counsels though there is
no such bar for the lawyers. Under para 7.09, it has been provided that whenever a District Judge and District Magistrate are transferred to other
place or at the end of every year, they have to place on record their opinion with regard to performance of District Government Counsel. The
opinion expressed by the District Judge forms a basis of recommendation at the time of renewal.
In the case of Harpal Singh Chauhan (supra), Hon''ble Supreme Court has observed as under:
7. The stand of the appellants is that, in view of Para 7.06(2), the appointment of any legal practitioner as a District Government Counsel, does not
automatically come to an end, rather it indicates an element of continuity and that is why Para 7.06(2) requires the District Officer, at the end of
period of one year to submit a report, after consulting the District Judge concerned, in respect of the work and conduct of such District
Government Counsel, to the Legal Remembrance, in a form prescribed. If the report in respect of work and conduct is satisfactory, then such
District Government Counsel shall be furnished with a deed of engagement, in a form prescribed for a term not exceeding three years. As such
after the period of one year, if the engagement for a further period upto three years is not given, it amounts to a stigma.
94. Now, it is well-settled proposition of law that the post of District Government Counsel carries civil nature with it and discharge public duty.
Once, the Government regulate the appointment of District Government Counsel through the Government Orders issued from time to time and
compiled in the form of L.R. Manual, then the procedure prescribed by the L.R. Manual must be followed. The Government does not have power
to decide the fate of Government counsels at its sweet will ignoring the procedure prescribed by L.R. Manual.
95. Law is very well-settled that a thing should be done in the manner provided by the Act or statute or regulatory procedure and not otherwise.
The renewal of serving governing counsel before proceeding to make fresh appointment must be considered and settled by catena of judgments of
this Court and Hon''ble Supreme Court.
96. In Km. Srilekha Vidyarthi (supra), where the services of Government counsels of entire State were terminated, Hon''ble Supreme Court held
that in case of existing appointees, a decision has to be first reached about their non-suitability for renewal before deciding to take step for fresh
appointment. To quote relevant portion from Km. Srilekha Vidyarthi (supra):
46...........This was done inspite of the clear provisions in the L.R. Manual laying down detailed procedure for appointment, termination and
renewal of tenure and the requirement to first consider the existing incumbent for renewal of his tenure and to take steps for a fresh appointment in
his place only if the existing incumbent is not found suitable in comparison to more suitable persons available for appointment at the time of
renewal. In the case of existing appointees, a decision has to be first reached about their non-suitability for renewal before deciding to take steps
for making fresh appointments to replace them. None of these steps were taken and no material has been produced to show that any existing
incumbent was found unsuitable for the office on objective assessment before the decision to replace all by fresh appointees was taken. The
prescribed procedure laid down in the L.R. Manual which has to regulate exercise of this power was totally ignored. In short, nothing worthwhile
has been shown on behalf of the State of U.P. to support the impugned action as reasonable and non-arbitrary. The impugned circular must,
therefore, perish on the ground of arbitrariness which is an available ground for judicial review in such a situation.
97. In State of U.P. Vs. Ramesh Chandra Sharma and others, , their Lordships of Hon''ble Supreme Court have considered para 7.06 and
reiterated and affirmed Srilekha Vidyarthi (supra) and held that the provision contained in L.R. Manual with regard to appointment, renewal and
under para 7.06 and 7.08 are binding.
98. In Harpal Singh Chauhan and others Vs. State of U.P., , again Hon''ble Supreme Court decided the issue with regard to renewal of District
Government Counsel and reaffirmed Srilekha Vidhyarthi (supra) and held that the procedure prescribed in the manual so far as it is not in conflict
with Section 24 of the Code of Criminal Procedure, shall be deemed to be supplementing statutory provision regulating the procedure. To quote
relevant portion:
15................It was pointed out, that different paragraphs of the Manual require, first to consider the existing incumbents for extension and renewal
of their tenure and to take steps for fresh appointment in their place, if the existing incumbents were not found suitable in comparison to more
suitable persons available for appointment at the time of the renewal.
99. In the case of Mudrika Prasad Singh (supra), Hon''ble Supreme Court while holding that a Government pleader holds public office and is more
than an advocate for litigant emphasised for fairness and justness in the matter of appointment of Government counsels.
100. In the case of Johri Mal (supra) though Hon''ble Supreme Court held that no advocate can claim as a matter of right to seek appointment on
the post of District Government Counsel merely because there is provision for extension or renewal of term but ruled that they can make a
grievance that either they have not received a fair treatment by the appointing authority or the procedure prescribed in the Code or in the manual
has not been followed. To reproduce relevant portion:
17. It is true that none of the appellants can claim, as a matter of right, that their terms should have been extended or that they should be appointed
against the existing vacancies, but, certainly, they can make a grievance that either they have not received the fair treatment by the appointing
authority or that the procedure prescribed in the Code and in the Manual aforesaid, have not been followed. While exercising the power of judicial
review even in respect of appointment of members of the legal profession as District Government Counsel, the Court can examine whether there
was any infirmity in the ""decision making process"". Of course, while doing so, the Court cannot substitute its own judgment over the final decision
taken in respect of selection of persons for those posts.
101. A Division Bench of Allahabad High Court in a case in Netra Pal Singh v. State of U.P. and others, 1999 (17) LCD 357, while holding that
the acquittal or conviction in a criminal case depends on many factors and adhering strictly to given percentage of success may only lead to
arbitrary result ruled that it shall be obligatory for the State to consider overall performance for renewal of tenure. To quote relevant portion:
16.................Therefore, the State action in the matters relating to appointment and continuance of Govt. counsels must be tested at the anvil of
Article 14 of the Constitution of India. No doubt the scope of judicial scrutiny in matters like one in hand would be limited. The Court would not
be justified in reassessing the merit of a petitioner. It is for the State to consider the overall performance and make its own assessment on the
question as to whether the term of an incumbent is to be renewed or not. It is, however, also essential that the parameters ''which'' are set by the
State to judge the suitability of a person for the purposes of his retention should be reasonable and not arbitrary. The State, as observed earlier,
would certainly be free to judge the ability, performance and general suitability of a Government Counsel in a reasonable manner adhering to the
professed norms as they exist in its own Manual so as to provide guidance, in is action relating to appointment and retention of Government
Counsels.
102. In Virendra Pal Singh Rana (supra) while holding that the opinion of the District Judge shall prevail over the District Magistrate, a Division
Bench of this Court held that the compliance of L.R. Manual shall be necessary for a valid renewal or appointment on the post of District
Government Counsel. The Government cannot refuse to renew the term in case it has been recommended by the District Judge or without
considering the recommendation of the District Judge as the case may be.
103. In the case in State of U.P. and Others Vs. Netra Pal Singh and Others, , Hon''ble Supreme Court has reiterated the earlier judgments to
regulate the renewal and appointment of District Government Counsels and emphasised that whenever the vacancy arises, the application shall be
considered in terms of the Legal Remembrancer Manual.
104. In one another judgment in Shailendra Kumar Ojha and Others Vs. State of U.P. and Others, , a Division Bench of this Court has reiterated
the aforesaid proposition of law and held that even if the post of District Government Counsel is not a civil post under the State, it carries
responsibility and privilege of public office of great public importance and plays important role in administration of justice. Neither the appointment
nor the renewal can be made at the sweet will of the Government. The application for renewal is to be considered and in case the renewal is
rejected only then the vacant post can be filled up. To quote relevant portion:
26. Thus, from the aforesaid, it becomes crystal clear that engagement of a Government Advocate is purely professional engagement and he does
not hold any civil post under the State. Appointment to the post has to be made on the recommendation for the District Collector with due
consultation of the District Judge. The consultation with the District Judge is effective one and not an empty formality. His opinion is to prevail even
on the opinion of the District Collector, though no person has a right to claim appointment or renewal but in view of the provisions of L.R. Manual,
the application for renewal is to be considered and in case the renewal is rejected, only then the vacant post can be filled up by a fresh appointment
otherwise the provisions of Para 7.08 of the L.R. Manual would be rendered nugatory. The schedule providing for three months for initiating the
process of renewal of the term is directory and not mandatory being purely procedural in nature. [Vide P.N. Sethi v. State of U.P. and others;
Ram Nihore Singh v. State of U.P. and others; Brijesh Kumar Singh v. State of U.P. and others; and V.P. Rana v. State of U.P. and others].
27. In Ramesh Chandra Sharma (supra), the Hon''ble Supreme Court considered the case of renewal of term and held that the application for
renewal is required to be considered in strict adherence of the provisions contained in Para 7.08 of the L.R. Manual and application is to be
considered on relevant considerations. It cannot be rejected on the whims of the authority or in an arbitrary manner. If Court comes to the
conclusion that application for renewal has been rejected on any existent or extraneous consideration, the order becomes liable to be quashed.
According to the petitioners'' counsel and pleading on record, the judgment and order of the Division Bench of this Court in the case of Shailendra
Kumar Ojha (supra) has been upheld by Hon''ble Supreme Court. The order passed by Hon''ble Supreme Court in the Special Leave to Appeal
(Civil) No(s). 14728 of 2004 State of U.P. and others v. Shailendra Kumar Ojha and others, is reproduced as under:
The Division Bench of the High Court has issued certain directions on the writ petition filed by the respondents. We do not intend to delve into the
matter, in view of the matter that the question relating to appointment of District Counsel (Criminal) has since been considered by this Court in the
State of U.P. and Another Vs. Johri Mal, . The appellant and all authorities concerned shall act accordingly.
The special leave petition is disposed of accordingly.
105. There is one more reason why it shall be obligatory on the part of the Government to consider the renewal of District Government Counsel
before making fresh recruitment. Chapter XXI of the L.R. Manual has overriding effect and under paras 21.01, 21.02, 21.03 and 21.04 contains
the provision whereby it has been provided that the District Judge shall submit his report about character, integrity and capability of every person
included in the panel giving details of work handled by it during the course of preceding two years. The procedure with regard to character,
integrity and capability of person noticed by the District Judge relates to appointment and renewal both. It means that the District Judge has to
maintain the record with regard to District Government Counsel. In case the system given in the impugned amendment is applied at the interval of
every three years or earlier to it, it shall render the provisions contained in Chapter XXI of the L.R. Manual redundant and the professional
engagement of lawyers shall be commercialised and they will lose their interest to serve the State with utmost honesty, integrity and capability.
Keeping in view the fact that Hon''ble Supreme Court has issued a mandamus directing the State of U.P. to comply with the judgment of
Shailendra Kumar Ojha (supra) whereby consultation with the District Judge has been upheld, it was not open to the State of U.P. to issue the
impugned Government Order amending the L.R. Manual contrary to mandamus issued by this Court as well as Hon''ble Supreme Court unless
direction issued by the Hon''ble Supreme Court would have been modified at the behest of the State Government. This fact has not been brought
into notice of this Court and Hon''ble Supreme Court in subsequent proceedings by the State Government or office of the Legal Remembrancer.
106. The significance of Chapter XXI of the L.R. Manual has been taken into account by Hon''ble Supreme Court in the case of Johri Mal
(supra). Their Lordships held that under Chapter XXI of L.R. Manual, it shall be obligatory on the part of the State to obtain opinion of the District
Judge while making renewal or appointment of District Government Counsel. The provisions contained in Chapter XXI of the L.R. Manual have
got overriding effect as observed hereinabove. To quote relevant portion from Johri Mal; to quote:
20. A supplementary provision has been made in Chapter XXI of the said Manual for appointment and renewal of the post of public prosecutors.
It inter alia contains the guidelines and clarifies that the appointment of DGC (Criminal), the change of designation of the public prosecutors could
not effect the basic nature of their professional engagement. It further provides that such professional engagement is terminated on either side
without notice and without assigning any reason. It is stated that the appointment of public prosecutor and Addl. Prosecutor both for the High
Court and District shall be made in accordance with Section 24 of the new Code. Para 21.04 provides for constitution of a panel of five years
against each vacancy. It mandates that the State Government shall appoint an Additional Public Prosecutor out of the names appeared in the panel.
Paras 21.07 and 21.08 of the said Manual read as under:
21.07. The appointment of Public Prosecutor or Additional Public Prosecutor shall be made for the period of three years, but the State
Government can terminate such appointment at any time without notice and without assigning any reason. The State Government may extend the
period of such appointment from time to time and such extension of such term shall not be treated as new appointment.
21.08. The District Magistrate shall after consultation with the Sessions Judge submit a confidential report in respect of the Public Prosecutor and
Additional Public Prosecutor giving details about the percentage of success of cases conducted by them and the general reputation which they
enjoy. Where the percentage of success is low the reasons given by the Public Prosecutor or Additional Public Prosecutor for the same should
also be commented on. After every three years he shall make a special assessment of each such Public Prosecutor and recommend whether the
person concerned should be granted extension for a further term of three years or for a shorter term only.
107. In these bunch of writ petitions, admittedly, in none of the cases, the opinion of the District Judge has been obtained under the garb of
impugned Government Order. Accordingly, the State action in making appointment or renewal of the District Government Counsels not only
suffers from vice of arbitrariness but violative of provisions contained in Chapter XXI of the L.R. Manual.
It is not so that the opinion of the District Judge is binding on the Government. Government is the final authority and on justifiable ground, the
Government may reject the proposal sent with the recommendation of District Judge and District Magistrate under the L.R. Manual. This apart, the
Government has power to appoint special counsel under sub-section (8) of Section 24 of CrPC straightway, without the recommendation of
District Judge as well as District Magistrate.
108. In view of above, whenever the term of the District Government Counsel expires, then as far as possible before three months before the date
of expiry of term, the Government should initiate the process of renewal inviting applications and report from District Magistrate in terms of L.R.
Manual and in case the renewal is rejected on justifiable ground recording objective satisfaction, only then it shall be open to the Government to
make fresh appointment. Though the procedure given in the L.R. Manual is not statutory but binding because of the fact that after the new Cr.P.C.,
the post has become statutory in view of the provision contained in Section 24 of Cr.P.C. The Government exercises its statutory right flowing
from Section 24 of Cr.P.C. to fill up the vacancies of District Government Counsels on criminal side and Section 127-B of the U.P. Z.A.L.R. Act
and rules, framed thereunder on revenue side.
(IV) GOVERNMENT''S RIGHT -
WHETHER STATUTORY?
109. Ordinarily, the engagement of an advocate by the litigant or the Government is a matter of choice but in case the power to make appointment
of counsel is conferred by the Constitution or statutory provision, then such right shall be constitutional or statutory right The appointment of
Advocate General, Attorney General, Solicitor General are done by the exercise of constitutional powers but when the matter comes to District
Govt. Counsel, right to make appointment flows from Sections 24 and 25 Cr.P.C. or the provision contained in U.P. Z.A.L.R. Act and Code of
Civil Procedure.
110. In the State of U.P., sub-sections (4)(5) and (6) of Section 24 have been deleted by Amending Act No. 18/91 with effect from 16.2.1991.
However, sub-sections (1)(2) and (3) of Section 24 are still in operation. For convenience, Sections 24(1)(2) and (3) are reproduced as under:
(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public
Prosecutor and may also appoint one or more Additional Public Prosecutor, for conducting in such Court, any prosecution, appeal or other
proceeding on behalf of the Central Government or State Government, as the case may be.
(2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district,
or local area.
(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for
the district:
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or
an Additional Public Prosecutor, as the case may be, for another district.
111. By the State amendment (supra) in sub-section (1), the word, ""after consultation with the High Court"" has been deleted. However, the fact
remains that the post of Public Prosecutor or Addl. Public Prosecutor are statutory post. Thus, the State Government exercise statutory power to
fill up the vacancies of District Government Counsels. The post of District Government Counsel has clipping of statutory post being created in
pursuance to Section 24 of Cr.P.C. This fact has been noted by the Hon''ble supreme Court in the case of Srilekha Vidyarthi (supra) while holding
that the appointment of District Government Counsel by the State Government is not merely a professional engagement like an engagement
between private client and his lawyer. Relevant paragraphs 14 and 17 of Srilekha Vidyarthi (supra) are reproduced as under:
14. We may now refer to some provisions of the Cr.P.C., 1973, relating to Public Prosecutors. Section 24 provides for appointment of Public
Prosecutors in the High Courts and the districts by the Central Government or the State Government. We are here concerned only with the
appointment of Public Prosecutors by the State Government in the districts. Sub-section (3) of Section 24 says that for every district, the State
Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district. Sub-section (4)
requires the District Magistrate to prepare a panel of names of persons considered fit for such appointments, in consultation with the Sessions
Judge. Sub-section (5) contains an embargo against appointment of any person as the Public Prosecutor or Additional Public Prosecutor for the
district by the State Government unless his name appears in the panel prepared under sub-section (4). Sub-section (6) provides for such
appointments, where in a State there exists a regular Cadre of Prosecuting Officers but if no suitable person is available in such cadre, then the
appointment has to be made from the panel prepared under sub-section (4). Sub-section (7) says that a person shall be eligible for such
appointment only after he has been in practice as an advocate for not less than seven years. Section 25 deals with the appointment of Assistant
Public Prosecutors in the district for conducting prosecution in the Courts of Magistrate. In the case of Public Prosecutors also known as District
Government Counsel (Criminal), there can be no doubt about the statutory element attaching to such appointments by virtue of these provisions in
the Cr.P.C., 1973. In this context, Section 321 of the Cr.P.C., 1973, is also significant. Section 321 permits withdrawal from prosecution by the
Public Prosecutor or Assistant Public Prosecutor in charge of a case, with the consent of the Court, at any time before the judgment is
pronounced. This power of the Public Prosecutor in charge of the case is derived from statute and the guiding consideration for it, must be the
interest of administration of justice. There can be no doubt that this function of the Public Prosecutor relates to a public purpose entrusting him with
the responsibility of 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 Cr.P.C., 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 his lawyer with no public element attaching to it.
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.
112. In Harpal Singh Chauhan (supra), Hon''ble Supreme Court has taken into account the ''statutory nature'' of the office of District Government
Counsels keeping in view Section 24 of Cr.P.C. To quote relevant portion:
10. In the present case, it appears to be an admitted position that appointments of the appellants as Assistant District Government Counsel
(Criminal) is governed by Section 24 of the Code, as well as different paragraphs of Chapter VII of the Manual. It was not disputed on behalf of
the State, that appellants shall be deemed to be Additional Public Prosecutors within the meaning of Section 24 of the Code, although in the order
of appointment they have been designated as Assistant District Government Counsel (Criminal). The procedure prescribed in the Manual can be
observed and followed as supplemental to the provisions of Section 24 of the Code. Needless to say that, if there is any conflict, then Section 24
of the Code being statutory in nature will override the procedure prescribed in the Manual.
11. The Code prescribes the procedure for appointment of Public Prosecutor and Additional Public Prosecutor, for the High Court and the
District Courts by the State Government. The framers of the Code, were conscious of the fact, that the Public Prosecutor and the Additional
Public Prosecutor have an important role, while prosecuting, on behalf of the State, accused persons, who are alleged to have committed one or
the other offence. Because of that, provisions have been made for their selection in the Code. It is for the Sessions Judge to assess the merit and
professional conduct of the persons recommended for such appointments and the District Magistrate to express his opinion on the suitability of
persons so recommended, from the administrative point of view. Sub-section (5) of Section 24 provides that no person shall be appointed by the
State Government as the Public Prosecutor or as an Additional Public Prosecutor ""unless his name appears in the panel of names prepared by the
District Magistrate under sub-section (4)"". The aforesaid section requires an effective and real consultation between the Sessions Judge and the
District Magistrate, about the merit and suitability of person to be appointed as Public Prosecutor or as an Additional Public Prosecutor. That is
why it requires, a panel of names of persons, to be prepared by the District Magistrate in consultation with the Sessions Judge. The same is the
position so far the Manual is concerned. It enumerates in detail, how for purpose of initial appointment, extension or renewal, the District Judge
who is also the Sessions Judge, is to give his estimate of the quality of the work of the Counsel from the judicial standpoint and the District Officer
i.e. the District Magistrate is to report about the suitability, of such person, from administrative point of view.
12. On behalf of the State, our attention was drawn to the expression ""in his opinion"" occurring in sub-section (4) of Section 24 of the Code. It
was urged that as the Code vests power in the District Magistrate to consider the suitability of the person concerned, for appointment, according
to his opinion, there is not much scope of judicial review by Courts, unless a clear case of malice on the part of the District Magistrate is made out.
In view of the series of judgments of this Court in The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, , State of
Assam and Another Vs. Bharat Kala Bhandar Ltd. and Others, ; Rohtas Industries Vs. S.D. Agarwal and Others, ; The Purtabpore Co., Ltd. Vs.
Cane Commissioner of Bihar and Others, and M.A. Rasheed and Others Vs. The State of Kerala, , it is almost settled that, although power has
been vested in a particular authority, in subjective terms, still judicial review is permissible.
113. The aforesaid proposition has been reiterated by Hon''ble Supreme Court in the case of Johri Mal (supra) in the light of Section 24 of the
CrPC. Their Lordships held that the Cr.P.C does not provide for renewal or extension of term. Hence, the State normally would be bound to
follow the principles laid down in the Legal Remembrancer Manual. To reproduce relevant portion:
40. So long as in appointing a counsel the procedures laid down under the Code of Criminal Procedure are followed and a reasonable or fair
procedure is adopted, the Court will normally not interfere with the decision. The nature of the office held by a lawyer vis-a-vis the State being in
the nature of professional engagement, the Courts are normally carry to over-turn any decision unless an exceptional case is made out. 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. The Code of
Criminal Procedure does not speak of renewal or extension of tenure. The extension of tenure of public prosecutor or the district counsel should
not be compared with the right of renewal under a license or permit granted under a statute. The incumbent has no legal enforceable right as such.
The action of the State in not renewing the tenure can be subjected to judicial scrutiny inter alia on the ground that the same is arbitrary. The Courts
normally would not delve into the records with a view to ascertain as to what impelled the State not to renew the tenure of a public prosecutor or a
district counsel. The jurisdiction of the Courts in a case of this nature would be to invoke the doctrine of ''Wednesbury Unreasonableness'' as
developed in Associated Picture House v. Wednesbury Corporation, (1947) 2 All ER 640).
46. The Code of Criminal Procedure does not provide for renewal or extension of a term. Evidently, the Legislature thought it fit to leave such
matters at the discretion of the State. It is no doubt true that even in the matter of extension or renewal of the term of Public Prosecutors, the State
is required to act fairly and reasonably. The State normally would be bound to follow the principles laid down in the Legal Remembrancer Manual.
In Johri Mal (supra), Hon''ble Supreme Court considered the statutory provisions of Section 24 in paras 13 and 14 of the judgment alongwith U.P.
Amendment. However, since the amendment was not challenged, no finding has been recorded with regard to validity of impugned amendment.
(V) OPINION OF DISTRICT JUDGE
114. Before issuance of the impugned order amending the L.R. Manual, consultation with District Judge was mandatory. Earlier to it, before State
amendment, by Act No. 45 of 1978, operating with effect from 18.12.1978, in Section 24 Cr.P.C. also, there was provision with regard to
effective consultation from the District Judges of the respective districts. Inspite of observation made by Hon''ble Supreme Court in Johri Mal
(supra), by the impugned order, L.R. Manual which is compilation of Government Orders, regulating the appointment of District Government
Counsel, has been amended. Question cropped up whether the Government could have amended the L.R. Manual under the garb of policy
decision with regard to consultation from the District Judge in utter disregard to judgments of Allahabad High Court (supra) and Hon''ble Supreme
Court (supra) delivered from time to time? At the outset, it may be noted that it is not a case of legislative overruling of Judicial decision but it is a
case of exercise of statutory power under Section 24 CrPC giving go-bye the consultation with the District Judges by issuing another Government
Order replacing earlier one.
In Srilekha Vidyarthi (supra), Hon''ble Supreme Court while considering different provisions of L.R. Manual noted the provision contained in para
7.09 of the L.R. Manual which provides that the District Officer and District Judge shall before the end of every year and also while leaving district
on transfer place on record his opinion on the capacity and work of District Government Counsel. He shall also obtain opinion from the Presiding
Officers of the Courts where District Government Counsel requires practice. Every adverse entry should be communicated to the District
Government Counsel by the District Officer with prior approval of the State Government. The character roll of every District Government Counsel
shall also be maintained in judicial section of the Government. In paras 11 and 12 of the judgment (supra), the procedure in L.R. Manual with
regard to appointment and renewal has been considered. While rejecting the consultation of the State Government that appointment of District
Government Counsel is only a professional engagement like that between private client and his lawyer (para 17 of the judgment) and holding that
every arbitrary action of the State in the matter of appointment of District Government Counsel shall hit by Article 14 (para 20) and State must act
fairly, justly and reasonably (para 24). Hon''ble Supreme Court further ruled that the burden shall be on the State to establish from material to
justify its action as fair and reasonable (para 33) and even in policy matter, the Court can interfere (para 29). The procedure prescribed with
regard to consultation from District Judge in Cr.P.C. and unamended L.R. Manual has been held to be obligatory by Hon''ble Supreme Court in
the case of Srilekha Vidyarthi (supra).
115. In P.N. Sethi v. State of U.P., 1992 ACJ 306, a Division Bench of this Court held that the opinion expressed by the District Judge shall
prevail and there cannot be arbitrary recommendation on the part of the District Magistrate.
116. In the case of Harpal Singh Chauhan (supra), their Lordships of Hon''ble Supreme Court had taken into account under para 46, the case of
earlier judgment in Srilekha Vidyarthi (supra) and reiterating Court''s power of judicial review (para 12) held that the opinion of the District Judge
with regard to quality of work will have primacy over the opinion of the District Magistrate. The District Magistrate is required to consider the
suitability of persons on administrative point of view. To quote relevant portion:
13. In the present case the District and Sessions Judge strongly recommended extension for the appellants, saying that so far their work and
conduct were concerned, the same had been approved. But the District Magistrate, simply said that on the inquiry at his level ""reputation,
professional work, behaviour and conduct of the appellants as Government counsel was not found in accordance with the public interest"". The
quality of the Counsel''s work has to be judged and assessed by the District and Sessions Judge. The District Magistrate is required to consider the
suitability of such person, from the administrative point of view. According to us, in view of the strong recommendation about the quality of the
appellants'' professional work, the District Magistrate should have applied his mind in consultation with the Sessions Judge, in respect of each
individual case, instead of making a general and identical comment against all the appellants.
14....................... In the present case the District Magistrate, instead of having an effective and real consultation with the District and Sessions
Judge, simply made some vague and general comments against the appellants, which cannot be held to be the compliance of the requirement of
sub-section (4) of Section 24.
Needless to say that under the unamended L.R. Manual regulated by earlier Government Order, sub-section (4) of Section 24 Cr.P.C. was very
well existing in the compilation as noted by Hon''ble Supreme Court in the case of Johri Mal (supra).
117. In Netrapal Singh (supra), the Division Bench of Allahabad High Court had noted the relevance of the opinion of the District Judge and
observed to give it due weight. Their Lordships though agreed that there may be cases where the Government may not agree with the
recommendation of the District Magistrate and District Judge with regard to renewal of term but there must be reasonable cause for the State to
take a different view. Mere acquittal or trial shall not suffice. (paras 17 and 18).
118. In the case of Virendra Pal Singh Rana (supra), the Division Bench of Allahabad High Court had depreciated after considering different
provision of L.R. Manual with regard to appointment, renewal and character roll entry and other earlier judgments of this Court, the tendency of
the State Government to remove District Government Counsels whimsically on unfounded ground. It has been further held that ordinarily, the
opinion of the District Judge shall prevail over the District Magistrate since it is the District Judge who knows about the conduct of Government
counsel and not the District Magistrate. The District Magistrate often under political pressure which is well known factor now a days shall
ordinarily do what the Government likes. The District Judge bring not subordinate to Government will give objective opinion. To quote relevant
portion from Virendra Pal Singh Rana''s case:
24. The question arises as to what would be the legal position when there is a conflict between the opinion of the District Judge and the opinion of
the District Magistrate, as has happened in the present case. Although, the L.R. Manual is silent on this point, in our opinion, in such a situation
ordinarily the opinion of the District judge must prevail over the opinion of the District Magistrate. This is because the District Judge is in the best
position to know about the performance, conduct, knowledge of law, etc. of the Government Counsel. The District Magistrate can have only a
limited knowledge about the same, and that too indirectly. On the other hand, the District Judge would be personally aware of the performance
and conduct of the Government Counsel as they often appear before him, and also before his colleagues in the District Court, with whom he is in
regular touch.
25. It is mentioned in Para 7.09 of the L.R. Manual that the District Judge has to place on record his opinion about the work of the D.G.C. Before
recording that opinion the District Judge has to obtain a report about the work and conduct of the D.G.C. from the Presiding Officers of the Court
where they are generally required to practice. Thus, the District Judge is in the best position to know about the work and conduct of a Government
Counsel and not the District Magistrate.
26. It may be further be mentioned that the District Magistrate is often under political pressure which is a well known factor now a days and hence
he cannot be expected to Act in as independent a manner as the District Judge, because the District Judge is not under the supervision and control
of the Government. Hence, in our opinion, ordinarily the District Judge''s opinion must prevail over that of the District Magistrate so far as the
appointment/extension of the term of the Government Counsel is concerned.
119. The Division Bench (supra) further issued certain directions in para 30 of the judgment, the relevant of which is reproduced as under:
(1) If the initial selection of the Government Counsel was made in contravention of Para 7.02 to Para 7.05 of the L.R. Manual the appointment will
be totally void and illegal and the term office of such Government Counsel shall be terminated forthwith. When the initial appointment is made, it is
the opinion of the District Judge which must ordinarily be accepted unless there was some adverse material against the applicant in which case, that
material could be placed before the District Judge by the District Magistrate and another opinion obtained from the District Judge.
(2) If the procedure of the L.R. Manual was followed in making the initial appointment, and if a termination order is passed while the term of the
incumbent is continuing, such termination will be illegal unless, it was done on the recommendation of the District Judge, or if the initial appointment
or extension itself was done without following the procedure in the L.R. Manual. In this connection we may refer to the Supreme Court decision in
State of U.P. v. U.P. State Law Officers Association, in which it was observed: ""Those who come to be appointed by such arbitrary procedure
can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the back door have to go by the same door
(vide Para 19 of the judgment).
(6) Any extension of a term as a Government Counsel without following the L.R. Manual is illegal and void.
(7) All orders terminating the engagement of Government Counsel or refusing to renew their term against the recommendation of the District Judge,
or without considering the recommendation of the District Judge, which is in his their favour are quashed provided the petitioner''s
appointment/renewal was made in accordance with the L.R. Manual (as interpreted by us). Such, person will continue in office till the expiry of
their term, and thereafter they should be considered for renewal of their term in accordance with this judgment. The term of renewal will be treated
as three years and not five years, but after the expiry of three years, they should be again considered for renewal, and so on.
(8) As regards the appointment/renewal of the term of D.G.C. (Revenue), it may be mentioned that such appointees work in the Revenue Court
and not in the Civil Court. Hence, regarding them ordinarily the opinion of the District Magistrate must prevail as he is expected to have knowledge
of revenue matters and of their performance. If the engagement has been terminated against the recommendation of the District Magistrate or
ignoring the same the termination will be illegal and be quashed. For renewal also as Counsel in the Revenue Courts ordinarily the opinion of the
District Magistrate should be accepted.
While issuing the aforesaid direction, the Division Bench (supra) noted that since last two or three decades whenever a new Government comes, it
terminate the services of Government counsels appointed earlier. Treating it as unhealthy practice, their Lordships observed that the Courts require
competent, honest Government counsels and the advocates who are competent, honest and fair must be retained in the system to assist the Court.
A mandamus issued was by the Division Bench directing the State of U.P. to suitably amend L.R. Manual and till its is done in the matter of
appointment and renewal, the recommendation of the District Judge should ordinarily be accepted. To quote relevant portion:
31. We may also mention before parting with this case that over the past two or three decades a practice has arisen that whenever a new
Government comes it terminates the appointments of almost all the Government Counsels appointed earlier and in their places persons belonging to
or affiliated to the new ruling party or their kith or kin are appointed. This is an unhealthy practice. The Court requires competent and honest
Government Counsels for proper assistance. The problem, however, is that many of the persons whose engagements as Government Counsel is
terminated by the new Government were themselves earlier appointed on extraneous considerations because they belonged to, or were affiliated to
the previous Government or were kith and kin of the Members of the previous Government and not on merit. Thus, it often happens that the
persons appointed by the previous Government were themselves incompetent or lacking in integrity or sound knowledge of law, and this Court will
not like to interfere in terminating their engagements. However, there are many Government Counsels who were appointed on genuine
considerations on their own merit, knowledge of law and integrity and competence. Termination of engagement of such persons is against the
interest of society and the State. Competent, honest Government Counsels with sound knowledge of law should be allowed to continue (unless,
they cross 62 years) whichever Government comes to power so that there is some stability in such engagements, and they are not treated as leaves
of office distributed by the ruling party. In fact, if such engagements are changed frequently the best talent and competence in the bar will not be
attracted to it because good lawyers would then prefer to remain in private practice rather than risk losing their private clientege in a job which is of
a precarious nature.
32. In State of U.P. v. U.P. State Law Officers Association (supra), it was observed by the Supreme Court that the Government or a public body
represent public interests, and hence, there is an obligation on them to engage the most competent lawyers.
33. Time, has, therefore, come when this practice must stop so that highly competent lawyers of integrity and sound knowledge of law are
appointed as Government Counsels and for this purpose we recommend to the State Government to consult Hon''ble the Chief Justice of the High
Court and suitably amend the L.R. Manual accordingly. Till that is done, ordinarily the recommendation of the District Judge, in the matter of
appointment/renewal of the Government Counsels in the District Court in the State must ordinarily be accepted.
34. With the above observations the petition is allowed. No order as to costs. Let the Registrar General of this Court send a copy of this judgment
to the Law Secretary, U.P. and all District Judges in the State.
120. In the case of Johri Mal (supra), their Lordships of Hon''ble Supreme Court have noted the undertaking given by the State of U.P. that
consultation with the District Judge is part and partial of the L.R. Manual; rather more exhaustive. Hence, the amendment in Section 24 Cr.P.C. by
the State of U.P. shall not affect the merit of appointment and renewal of District Government Counsel in the State of U.P. A combined reading of
paras 85, 86 and 87 of the judgment of Johri Mal (supra) shows that the Hon''ble Supreme Court noted the fact that it is the District Judge who is
supposed to note the merit, competence, capability of lawyers and the District Government Counsel whereas the conduct outside the Court may
be known to the District Magistrate. Hon''ble Supreme Court reminded the State Government with regard to observation made in the case of
Mudrika Prasad Singh (supra) that the opinion of the District Judge will have primacy over others. Their Lordships held that the State should give
primacy to the opinion of the District Judge to demonstrate fairness and reasonableness of its action. The provision with regard to consultation with
District Judge is solitary one and the State Government will suitably amend L.R. Manual with regard to consultation with High Court to ensure
fairness in action.
121. In Johri Mal (supra), Hon''ble Supreme Court further held that a good, competent and honest lawyer may be replaced only in case more
competent lawyers are available. Their Lordships further held that the District Government Counsels are not only officers of the Court but also
representative of the State. Their opinion carries great weight. They are supposed to render independent, fearless and impartial views irrespective
of the result of the litigation which may ensue. They represent the interest of general public before the Court. Their Lordships opined that it shall be
obligatory for the District Judge and the District Magistrate to ensure that before sending any recommendation, the incumbent must not have any
political affinity. Their Lordships further held that consultation in any case with the District Judge should be held to be imperative. To quote:
44. Only when good and competent counsel are appointed by the State, the public interest would be safeguarded. The State while appointing the
public prosecutors must bear in mind that for the purpose of upholding the rule of law, good administration of justice is imperative which in turn
would have a direct impact on sustenance of democracy. No appointment of public prosecutors or district counsel should, thus, be made either for
pursuing a political purpose or for giving some undue advantage to a section of people. Retention of its counsel by the State must be weighed on
the scale of public interest. The State should replace an efficient, honest and competent lawyer, inter alia, when it is a position to appoint a more
competent lawyer. In such an event, even a good performance by a lawyer may not be of much importance.
83. The proviso evidently was inserted with a noble purpose. Such a provision was evidently made having regard to the fact that an advocate
having a deep sense of self-respect may not file any application for his appointment as a District Government Counsel despite calling for
applications by the District Magistrate in this behalf. The District Magistrate in a given situation may have to persuade very competent persons to
take the offer in public interest as also in the interest of the State. But recourse to the said provision cannot be resorted to for general
appointments. The said proviso must be taken recourse to only in very exceptional cases. Even in relation thereto, consultation with the District
Judge should be held to be imperative.
122. The case of Johri Mal has been followed by this Court in the case in Vinay Kumar Srivastava Vs. The State of U.P., ; Ghanshyam Kishor
Bajpayee and Others Vs. State of U.P. and Others, and Badri Vishal Gupta Vs. State of M.P. and Others, .
123. The consistent view of the High Court is that it shall be obligatory for the State to obtain opinion of the District Judge while making
appointment or renewal of the District Government Counsels.
124. Not only Allahabad High Court but the Bombay High Court also, in the case in Mrs. Neelima Sadanand Vartak Vs. State of Maharashtra
and Others, , held that it shall be mandatory to obtain the opinion of the District Judge while making appointment or renewal of District
Government Counsel. Before the Bombay High Court, the controversy was with regard to renewal of govern counsel. In the State of Maharashtra
like U.P., Cr.P.C. has been amended but ignoring the amendment, their Lordships of Bombay High Court, relying upon the case of Johri Mal
(supra), held that the consultation with the Sessions Judge is mandatory and it had to be given primacy. To reproduce relevant portion; to quote:
21. (i) We have considered the submissions of the Counsel for the petitioner, the State as well as the contesting respondent No. 8. From the
discussion as recorded above, it is clear that prior to any such amendment to Section 24, the Apex Court had held that the consultation with the
Sessions Judge was mandatory and it had to be given primacy. That position has been reiterated in Johri Mal''s case (supra) which describes it in
paragraph 85 as ""age-old tradition"". This judgment, by and large, reiterates the legal position which was enunciated in Mundrika Prasad Singh''s
case (supra) and in the case of Harpal Singh (supra). In Johri Mal''s case, this position is reiterated inspite of deletion of sub-sections (4), (5) and
(6) from Section 24 by State of U.P. It is only declaring the legal position which existed earlier. It is, therefore, not possible for us to accept the
submission of the learned Advocate General that the judgment should be treated as prospective. It is only declaring the legal position as it exists.
(ii). Looking at it from a different point, sub-section (4) now requires the District Magistrate to prepare a panel of persons who are fit to be
appointed as Public Prosecutors. The essential requirement is that the person should be fit for this job. This fitness implies the suitability for doing
the particular work which is quite different from their eligibility. This fitness can only be assessed by the District Judge who may as well take the
opinion of his colleagues but basically he is the person on the spot who can look into the credentials of the persons concerned, their capability and
competency as well as merits. A District Magistrate would not know about it. He will, of course, find out their eligibility which will include their
reputation, their status in the society at large and their conduct outside the Court. However, since the appointment is to be made for the post of a
Public Prosecutor, the opinion that he has to give must contain the element about their competence and performance. With the deletion of the
words ""in consultation with the Sessions Judge"" now the entire responsibility is on the District Magistrate. This being the position now, it is for him
to get the view of the District Judge and then prepare the panel of persons fit for this job. In the present case, he received some 25 applications,
out of which 6 did not mention the post for which the applications were made. The District Magistrate was to find out if they were otherwise
eligible. He has not made any endorsement against three of them. He forwarded the comments of the District Judge with respect to 19 of them and
the names of the other six applicants to the Government. This is no way of preparing a panel. Panel will positively mean a short-listing of the most
meritorious candidates. As held by the Apex Court in Harpal Singh''s case (supra), there has to be effective and real consultation between the
Sessions Judge and the District Magistrate and then he has to prepare a panel of names of persons by which it obviously means short listing. The
fact that he prepared a panel of 25 Advocates (including six who had not mentioned the post applied for) and which included the names of three
candidates without stating anything about their eligibility clearly shows his non-application of mind and dereliction of statutory responsibility.
125. Another Division Bench of this Court in the case of Shailendra Kumar Ojha (supra) after considering almost all earlier judgments has
reiterated the settled proposition of law that the opinion of the District Judge shall prevail over and above the District Collector. It has been further
held that while rejecting the renewal, the authorities have to pass speaking and reasoned order. To quote relevant portion:
26. Thus, from the aforesaid, it becomes crystal clear that engagement of a Government Advocate is purely professional engagement and he does
not hold any civil post under the State. Appointment to the post has to be made on the recommendation for the District Collector with due
consultation of the District Judge. The consultation with the District Judge is effective one and not an empty formality. His opinion is to prevail even
on the opinion of the District Collector, though no person has a right to claim appointment or renewal but in view of the provisions of L.R. Manual,
the application for renewal is to be considered and in case the renewal is rejected, only then the vacant post can be filled up by a fresh appointment
otherwise the provisions of Para 7.08 of the L.R. Manual would be rendered nugatory. The schedule providing for three months for initiating the
process of renewal of the term is directory and not mandatory being purely procedural in nature. [Vide P.N. Sethi v. State of U.P. and others;
Ram Nihore Singh v. State of U.P. and others; Brijesh Kumar Singh v. State of U.P. and others; and V.P. Rana v. State of U.P. and others].
27. In Ramesh Chandra Sharma (supra), the Hon''ble Supreme Court considered the case of renewal of term and held that the application for
renewal is required to be considered in strict adherence of the provisions contained in Para 7.08 of the L.R. Manual and application is to be
considered on relevant considerations. It cannot be rejected on the whims of the authority or in an arbitrary manner. If Court comes to the
conclusion that application for renewal has been rejected on any existent or extraneous consideration, the order becomes liable to be quashed.
28. In order to examine the correctness of the order passed while deciding the application for renewal, it becomes mandatory for the authority to
pass a speaking and reasoned order.
126. In a recent judgment where a petition was filed by the State of U.P. against the interim order passed by the Division Bench in the present
bunch of writ petitions in State of U.P. and Others Vs. Hirendra Pal Singh etc., , Hon''ble supreme Court noted the consultation with District Judge
and held that the opinion of the District Judge will have got primacy over the others. To reproduce relevant portion:
20. So far as the issue of dispensation of consultation with the District Judge is concerned, this Court has hiterto taken a view that his opinion
would have supremacy, thus requires to be examined considering the judgments of this Court in Shrilekha Vidyarthi v. State of U.P., Harpal Singh
Chauhan v. State of U.P., State of U.P. v. Ramesh Chandra Sharma, State of U.P. v. Johri Mal and State of U.P. v. Netra Pal Singh.
127. Thus, the consistent view of Allahabad High Court and affirmed by Hon''ble Supreme Court till date is that it shall be obligatory on the part of
the State Government to obtain opinion of the District Judge to find out suitability with regard to renewal and appointment of District Government
Counsels and the opinion of the District Judge will have primacy over and above the opinion of the District Magistrate and in case the State
Government takes a different view, then it has to assign reason and the decision of the Government or the authorities must be passed on objective
consideration of material on record. No decision can be taken on unfounded ground, otherwise, it shall be hit by vice of arbitrariness and violative
of Article 14 of the Constitution of India.
128. It has been emphatically argued by Mr. Raghvendra Kumar Singh, learned Senior counsel appearing for the State Government that it is the
prerogative of the State Government to amend the L.R. Manual since it is compilation of the Government Order and the right of the State
Government to issue subsequent Government Order has been upheld by Hon''ble Supreme Court in the case of Hirendra Pal Singh (supra). The
submission is that the Government can amend the L.R. Manual by issuing subsequent Government Orders and give a go-bye with consultation of
the District Judge.
129. We are afraid to uphold the argument of the learned counsel representing the State of U.P. The record produced before the Court does not
show that the State has applied its mind to the judgment of Virendra Pal Singh Rana (supra), Shailendra Kumar Ojha (supra), Johri Mal (supra)
and even recent judgment of Hon''ble Supreme Court in the case of Hirendra Pal Singh (supra); rather the State seems to have issued the
impugned order in violation of the judgment of Apex Court (supra) and mandamus issued by the Division Bench of this Court (supra). Even, the
State Government has not taken care to give a little respect to various pronouncements of this Court and Hon''ble supreme Court by moving
appropriate application for clarification or modification of the judgment in the case of Virendra Pal Singh Rana (supra), Johri Mal (supra) and
Hirendra Pal Singh (supra) while giving go-bye with consultation with District Judge. Such action on the part of the State Government seems to be
an abuse of power as well as contemptuous.
130. We should not be oversighted from the fact that in view of Section 24 of Cr.P.C., the post of Government counsels are statutory post, as
admitted by the Government through Government Orders complied in the form of L.R. Manual. Persons holding high office like the Government
counsel cannot be treated shably in utter disregard to repeated pronouncements of Hon''ble Supreme Court. The judgment and order of the
Division Bench of this Court and Hon''ble supreme Court are binding over the State Government.
(VI) IMPUGNED ORDER AND THE
BINDING PRECEDENT
131. The State Government has failed to take notice to the mandamus issued by this Court in the case of Virendra Pal Singh Rana (supra)
followed by command of Hon''ble Supreme Court in Johri Mal (supra) and positive observation made in other judgments of this Court and
Supreme Court (supra) while amending the LR Manual by the impugned order. The Hon''ble Supreme Court while considering the well-settled
principles in the case in Dalbir Singh and Others Vs. State of Punjab, , held that every decision contains three basic ingredients, i.e. finding of
material facts direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct or perceptible facts.
And the statement of principles of law applicable to the legal problems disclosed by the facts.
Thirdly, the judgment based on the combined effect of the aforesaid two propositions.
132. The word ''Stare Decisis'' is a Latin phrase. It means let the decision stand or to stand by the decided cases or to abide by former decision,
to uphold precedents, to follow earlier cases, to maintain former adjudication.
133. According to Lord Coke, the principles of ''stare decisis'' means those things which have been so often adjudged ought to rest in peace.
Doctrine of stare decisis is expressed in the maxim ''Stare decisis et non quieta movere'' means let the decision stand without disturbing it or it is
better to adhere to decision than to disturb questions put at rest.
134. Under this doctrine, Courts will abide by decided cases and refrain from disturbing general principles established by judicial determination.
The Hon''ble Supreme Court in the case in The Regional Manager and Another Vs. Pawan Kumar Dubey, ; The Mumbai Kamgar Sabha,
Bombay Vs. Abdulbhai Faizullabhai and Others, ; Waman Rao v. Union of India, AIR 1981 SC 271 and Makhanlal Waza and Others Vs. State
of Jammu and Kashmir and Others, , held that the doctrine of stare decisis is a salutary one and should not ordinarily be departed from where the
decision is of long standing and rights have been crystallised under it. Stare decisis thus represents an element of continuity in law and is rooted in
the psychologic need to satisfy reasonable and legitimate expectations.
135. In the case in Deena alias Deen Dayal and Others Vs. Union of India (UOI) and Others, and Sher Singh and Others Vs. State of Punjab, ,
while considering the doctrine of stare decisis Hon''ble Supreme Court held that under the doctrine of stare decisis, a deliberate and solemn
decision of a competent Court of law made after due deliberation on a question of law fairly arising in a case, and necessary for the determination
of lis is an authority and a binding precedent in all subsequent cases wherein the very point is again in controversy before the Court.
136. Aforesaid view has been reiterated by the Hon''ble Supreme Court in the case in Saurashtra Cement and Chemical Industries v. Union of
India, AIR 2001 SC 8 . Again the Hon''ble Supreme Court in the case in Milkfood Ltd. Vs. GMC Ice Cream (P) Ltd., ; Sakshi Vs. Union of
India (UOI) and Others, and State of Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat and Others, and while reiterating the aforesaid principle
ruled that Stare decisis is a policy of Courts of law to stand by precedents and not to disturb settled legal position. It is a name given to the
doctrine that when a Court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it
to all future cases where the facts are substantially the same. It is the applicable principle of estoppel to decisions of Courts.
137. In a case in Gopal Upadhyaya and Others Vs. Union of India (UOI) and Others, , Hon''ble Supreme Court held that what judges expressly
decided or what they must be considered to have decided by necessary implication by reference to the facts stated by themselves constitute
precedents.
138. In Halsbury''s Laws of England, it is said that the primary object of stare decisis is to maintain certainty, consistency, uniformity and stability.
The guiding philosophy underlying the doctrine is to ensure that a decision on a point of law which has held the field for a long time should not
ordinarily be disturbed or unsettled, to quote:
Apart from any question as to the Courts being of coordinate jurisdiction, a decision which has been followed for a long period of time, and has
been acted upon persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal
procedure or in other ways, will generally be followed by Courts of higher authority than the Court establishing the rule, even though the Court
before whom the matter arises afterwards might not have given the same decision had the question come before it originally. But the supreme
appellate Court will not shrink from overruling a decision, or series of decisions, which establish a doctrine plainly outside the statute and outside
the common law, when no title and no contract will be shaken, no persons can complain, and no general course of dealing be altered by the
remedy of a mistake.
139. In Corpus Juris Secundum, Page 302 para 187, the stare decisis has been defined as under:
Under the stare decisis rule, a principle of law which has become settled by a series of decisions generally is binding on the Courts and should be
followed in similar cases. This rule is based on expediency and public policy, and, although generally it should be strictly adhered to by the Courts
it is not universally applicable.
140. In Burnet v. Koronado Oil and Gas Co., (1932) 285 US 393 406ENDLAWFINDER , Justice Brandeis rightly stated, to quote:
Stare decisis is usually the wise policy because in most matters it is important that the applicable rule of law be settled than it be settled right.
141. The Hon''ble Supreme Court in the case in Maktul Vs. Mst. Manbhari and Others, , held that without observance of stare decisis, the law is
divested of one of its most important attributes (certainty). It becomes fluctuating and hesitating. Instead of being a steady light to guide or shield to
protect, it becomes an ignis fatuus to mislead or a snare to entrap innocent citizens.
142. That is why the Hon''ble Supreme Court in the case in Dwarkadas Shrinivas of Bombay Vs. The Sholapur Spinning and Weaving Co. Ltd.
and Others, and one other case in Lt. Col. Khajoor Singh Vs. The Union of India and Another, , while following the judgment of U.S. Supreme
Court ruled that the doctrine of ''stare decisis'' rests upon the principle that law by which men are governed should be fixed, definite, stable,
consistent and known and once, the law is declared by a Court of competent jurisdiction, such declaration in absence of palpable mistake or error,
is itself evidence of the law until changed by competent legislature.
143. The judgment pronounced by the higher judiciary may be overruled by a legislative overruling. The law is very settled that the legislature has
go right to legislate law to rule out the effect of judgment of higher judiciary. Legislative overruling is now accepted principle under the constitutional
mandate vide K.S. Pariapoornan and Others Vs. State of Kerala and Others, ; Delhi Cloth and General Mills Co. Ltd. and Another Vs. State of
Rajasthan and Others, ; Bhubaneshwar Singh and Bimla Devi Poddar and Others Vs. Union of India (UOI) and Others, .
Number of amendments have been done in the Constitution as well as statutes from time to time by legislature to dilute the effect of judgments.
Need not require to mention. However, the legislatures or executive do not get power to overcome the judgment by issuing Government Orders or
amending the existing Government Orders or by executive instructions.
144. In democratic polity, the aim and object of all three wings of Government is public good or welfare of the people and according to Latin
maxim ''Salus populi est suprema lex'' means the good of the people is the supreme law. Hence, in case an action of the State in making
appointment on the post of Government counsel suffers from arbitrariness or for political reason, then the Court has got ample power to interfere.
However, there is one other aspect of the matter. So far as the constitutional post in the form of Advocate General, Solicitor General or Attorney
General are concerned, State may have got prerogative to some extent but when the matter comes with regard to filling up the vacancy of statutory
post like District Government Counsel under the Code of Criminal Procedure or U.P. Z.A.L.R. Act and rules framed thereunder or Code of Civil
Procedure, then discretion of the State is fettered by fairness, reasonableness and justness and only merit should be the criteria as repeatedly held
by Hon''ble Supreme Court in catena of cases (supra).
145. Judiciary is the part and partial of sovereign function of the State. District Government Counsels not only represent the State but also
represent the citizens who file complaints or lodge F.I.R. The Government counsel also represents judiciary and other wings of the State.
Now, it is trite in law that the Constitution is an organic body and law changes to keep pace with time. Hon''ble Supreme Court while interpreting
Article 14 of the Constitution of India in a case in Nand Kishore Vs. State of Punjab, , held that the Court is not merely the interpreter of the law
as existing but much beyond that.
In one other judgment in RAMON SERVICES (P) LTD. Vs. SUBHASH KAPOOR, , their Lordships of Hon''ble Supreme Court observed that
the concept of social justice has become part and partial of legal system and it gives meaning and significance to the democratic ways of life and of
making the life more dynamic. To quote:
21.............After independence the concept of social justice has become a part of our legal system. This concept gives meaning and significance to
the democratic ways of life and of making the life dynamic. The concept of welfare State would remain in oblivion unless social justice is dispensed.
Dispensation of social justice and achieving the goals set forth in the Constitution are not possible without the active, concerted and dynamic efforts
made by the person concerned with the justice dispensation system. The prevailing ailing socio-economic-political system in the country needs
treatment which can immediately be provided by judicial incision.
146. In the present case, in view of division bench judgment of this Court and various pronouncement of this Court in Virendra Pal Singh Rana''s
case (supra), Shailendra Kumar Oha (supra) and of Hon''ble Supreme Court, particularly Johri Mal (supra) and HirendraPal Singh (supra) opinion
of district judge is necessary and in the event of conflict of opinion of district magistrate and district judge, opinion of District Judge shall prevail.
Though the State has got power to make appointment but it shall be obligatory on the part of State Government to record reason with dissenting
note while taking contrary decision to the opinion expressed by the District Judge and District Magistrate. The judgments of Coordinate Bench of
this Court and judgments of Hon''ble Supreme Court referred (supra) are binding. No contrary decision may be taken by this Court for any reason
whatsoever and similarly it is not lawful for the State to issue Government Order in violation of judgments (supra) justifying its action.
147. Apart from above, the direction, order and judgment passed by the Hon''ble Supreme Court constitute binding law under Article 141 of the
Constitution of India. It is the duty of High Court and Subordinate Courts to follow the decision.
(VII) OVERRULING OF JUDGMENTS BY
EXECUTIVE ORDER NOT PERMISSIBLE
148. One other substantial question of law cropped up is whether the State Government could have issued the impugned Government Order
amending the L.R. Manual, that too against the Division Bench''s judgment of this Court in Virendra Pal Singh Rana''s case (supra) and Shailendra
Kumar Ojha (supra) and Johri Mql (supra). Legislatures have ample power to legislate law to override the judgements of Constitutional Courts by
legislative enactments within the constitutional ambit. But in any case, the judgments of constitutional Court cannot be nullified or overruled by
executive instructions.
149. In the cases in Vishaka and others Vs. State of Rajasthan and Others, ; Khedat Mazdoor Chetna Sangath Vs. State of M.P. and others, ;
Union of India and others Vs. Kantilal Hematram Pandya, ; Director of Settlements, Andhra Pradesh and Others Vs. M.R. Apparao and Another,
and in the case in S.S. Bola and others Vs. B.D. Sardana and others, , it has been held that the legislature, by an enactment, cannot nullify the
mandamus or direction issued by the Court in exercise of power of judicial review as that would amount to transgression by legislature in the field
occupied by the judiciary, to quote relevant portion from Bola and others (supra)-
The constitutional Courts as sentinel on the qui vive, have fundamental duty and responsibility to build an egalitarian social order under the rule of
law. In the exercise of the power of judicial review the Judges of the constitutional Courts must, of necessity, be judicial statesmen. Judicial review
is a linkage between the individual liberties and social interest, political stability to counterbalance the ultra vires Acts or actions by judicious
decision. Separation of powers among the legislature, the executive and the judiciary is also a basic feature of the Constitution. The
unconstitutionality of the Acts/actions arises from violation of the fundamental rights, separation or distribution of powers under the Constitution
between the three wings of the Stare or to prevent violation of constitutional limitations or restrictions. In adjudicating the constitutionality of an
Act/action the Courts evolve diverse principles wrapped up with constitutional ethos to pass on its constitutionality. Thereby, judicial review alerts
the legislature/the executive that their Acts/actions, should conform to the constitutional requirements or avert the constitutional lapses without
trenching upon or trespassing into the field assigned to the other wings of the State and develop mutual respect for each other''s powers and
functions. It is settled law that if the language in the Act/section/clause is clear and unambiguous it is not necessary to fall back upon the Statement
of Objects and Reasons of the Act to cull out the intention. Therefore, we need not burden the judgment by citing copious precedents in this
behalf. In adjudging the constitutionality of an Act or action, it is their function to find out whether the vice pointed out by the Courts or invalidity
suffered by the previous law, is cured, complying with the constitutional/legal requirements as was pointed out in the previous judgment by applying
the primary tests viz., whether legislature is competent to enact the law and whether the Act is consistent with the constitutional requirements. The
legislature has no power to overrule the decision of a constitutional Court by mere declaration, without properly and constitutionally removing the
base upon which the previous decision was founded; nor has it the power to direct that the decision of the Court does not bind the State or its
instrumentalities.
In a democracy governed by the rule of law, the legislature exercises its power under Articles 245 an 246 and other companion articles read with
the specified entries in the respective lists of the Seventh Schedule to the Constitution. Power to legislate law would include the power to amend
the law, to enact a new law, and in an appropriate case, with retrospective effect. The legislature in enacting new law or amending the existing law
or revalidating the law has power to alter the language in the statute by employing the appropriate phraseology and to put up its own interpretation
inconsistent with that put up by the Court in an earlier judgment on the basis of the pre-existing law and to suitable make new law, amend the law
or alter the law removing the base on which the previous decision was founded. If a legislature finds that the interpretation given by the Court to the
existing law is inconsistent with the constitutional or public policy or the objects of the Act intended to be achieve, the legislature has power to
enact new law, or amend the law consistent with constitutional or public policy sought to be achieved by the statute. Such an enactment must
generally be prospective and not retrospective in nature.
The legislature in enacting the law cannot, without anything more, by a mere declaration, directly overrule, revise or override a judicial decision. It
can render the judicial decision ineffective only by enacting valid law on the subject within its legislative competence fundamentally altering or
changing the character prospectively or retrospectively. The changes or altered conditions have to be such that the previous decision would not
have been rendered by the Court had those conditions existed at the time of declaration of the law in the previous decision as invalid. It is also
empowered to give effect to the Acts so enacted or revalidated prospectively or retrospectively with a deemed date or with effect from a particular
date.
The legislative judgment, by a facade of compliance or removal of the base, cannot render the decision or mandamus issued by the Court
ineffective or invalid by a declaratory law that the previous decision of the Court is illegal or inequitous. Such a declaration is not conclusive, but is
subject to judicial review. The real test is the effect of the legislation tested on the touchstone of the Constitution and its direct result on the
declaration of law as interpreted earlier or the mandamus/direction issued by the Court in the previous litigation.
The writ of mandamus or direction issued by the Court cannot be nullified by a legislative fiat, unless the base is removed within the constitutionally
permissible limits. However, the doctrine of incidental power, cannot be extended to the exercise of the legislative power colourably or by fraud on
the constitution.
The proposition of law which emerges from the catena of judgment of Hon''ble Supreme Court is that the legislature exercising powers within the
legislative ambit may legislate law by amending the statute or framing rules to override the judgments of the Court that too within four corners of
constitutional provision and not by colourable exercise of power but in any case executive or legislature are not competent to overrule or override
the judgments by executive instructions.
150. Executive does not possess inherent power to exercise constituent or legislative functions as such powers of constitutional amendment or of
legislation cannot be exercised under inherent power by the head of the executive like Chief Minister, Governor or President. Thus, the executive
cannot usurp the constituent or legislative function. In United States of America, President Truman issued a direction on 8th April, 1952 to his
Commerce Secretary to take over all the steel industries of the entire nation and operate the same under the plea of emergency and avoid national
calamity. The Supreme Court of America turned down the plea and the case is in Youngstown Sheet and Tube Co. v. Sawyer, (1952) 342 US
579ENDLAWFINDER Supreme Court ruled that ""with all its defects, delay and inconvenience"" men have discovered no technique for long
preserving fiat Government except that the executive be under law, and that the law be made by parliamentary deliberations.
151. In India, aforesaid principles has been followed in the case of Privy Purse in H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur
of Gwalior and Others Vs. Union of India and Another, . Hon''ble Supreme Court held that ""What a legislation cannot do, the executive could not
do obviously. Their Lordships ruled that the basic principle of law is that every executive action, if it is to operate to the prejudice of any person,
must be supported by some legislative authority. Earlier to Privy Purse case, the same has been held in the case in State of Madhya Pradesh and
Another Vs. Thakur Bharat Singh, .
152. Aforesaid principle has been reiterated by the Supreme Court in the case in People''s Union for civil Liberties (PUCL) and Others Vs. Union
of India (UOI) and Another, . In one other judgment in M.C. Mehta Vs. Union of India (UOI) and Others, , Hon''ble Supreme Court ruled that its
order cannot be nullified or modified or in any way by any administrative decision of Central Government or State Government.
153. In Dr. Dinesh Kumar and others Vs. Moti Lal Nehru Medical College, Allahabad and others, , the Hon''ble Supreme Court held that the
direction of the Supreme Court are not intended to be brushed aside or overlooked or ignored. Meticulous compliance is only way to respond to
the direction of the Court.
154. In S. Nagaraj and Others Vs. State of Karnataka and Another, , their lordships of Supreme Court held that if any order of competent Court
is erroneous, mistaken or improperly obtained, they cannot be substituted, altered, modified by the executive authorities according to their own
views. They will be still binding. However, remedy can be had only from higher Court or from the same Court, to quote relevant portion:
Of all these things respecting which learned men dispute"", said Cicero, ""there is none more important than clearly to understand that we are born
for justice and that right is founded not in opinion but in nature."" This very idea was echoed by James Madison (The Federalist No. 51 page 352),
He said: ""Justice is the end of Government. It is the end of the civil Society. It ever has been and ever will be pursued, until it be obtained or until
liberty be lost in the pursuit.
155. In a case in Nand Kishore Vs. State of Punjab, , Hon''ble Supreme Court ruled that keeping with the plenary function of the Supreme Court
under Article 141 of the Constitution, for the Court is not merely the interpreter of the law as existing but much beyond that. The Court as a wing
of the State is by itself a source of law, to quote:
When this Court strikes down a statutory provision holding it to be unconstitutional, it derives its authority to do so under the Constitution. Under
Article 141, the law declared by it is of a binding character and as commandful as the law made by a legislative body or an authorised delegatee of
such body. The Court is thus a ""competent authority"" within the scope of the words above emphasized. On the other hand the majority view
expressed in the Full Bench decision that ""the Courts of record including the Supreme Court only interpret the law as it stands but do not purport
to amend the same. Their Lordships'' decision declare the existing law but do not enact any fresh law"", is not in keeping with the plenary function of
the Supreme Court under Article 141 of the Constitution, for the Court is not merely the interpreter of the law as existing but much beyond that.
The Court as a wing of the State is by itself a source of law. The law is what the Court says it is. Patently the High Court fell into an error in its
appreciation of the role of this Court.
156. In All India Reporter Karamchari Sangh and Others Vs. All India Reporter Limited and Others, , Hon''ble Supreme Court reiterated that
judgments are binding under Article 141 of the Constitution of India and the decision of Supreme Court almost are important as rules and
regulations passed by the competent legislature, to quote relevant portion:
Article 141 of the Constitution provides that the law declared by Supreme Court shall be binding on all Courts within the territory of India. Even
apart from Article 141 of the Constitution the decisions of the Supreme Court, which is a Court of record, constitute a source of law as they are
the judicial precedents of the highest Court of the land. They are binding on all the Courts throughout India. Similarly the decisions of every High
Court being judicial precedents are binding on all Courts situated in the territory over which the High Court exercises jurisdiction. Those decisions
also carry persuasive value before Courts which are not situated within its territory. The decisions of the Supreme Court and of the High Courts
are almost as important as statutes, rules and regulations passed by the competent legislatures and other bodies since they affect the public
generally. It is well-known that the decisions of the superior Courts while they settle the disputes between the parties to the proceedings in which
they are given they are the sources of law in so far as all others are concerned. As soon as a decision is rendered the members of the public would
be interested in knowing it. At any rate lawyers and others connected with Courts and judicial proceedings who constitute a substantial section of
the public are interested in knowing the contents and the effect of the decisions.
157. In one other case in Union of India (UOI) and Others Vs. Dhanwanti Devi and Others, , while considering the ratio decidendi of a case,
Supreme Court ruled that a question arises in a case may constitute a precedent and no matter for what reason the decision is taken, to quote:
The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the
judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is
only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after
hearing an argument on a question which arises in the case or it put in issue may constitute a precedent, no matter for what reason, and the
precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and
circumstances of the case which constitutes its ratio decidendi.
158. It is trite law that ordinarily even a obiter dicta is strictly obeyed and followed. Sometime, well considered obiter dicta is taken as precedent
vide Saiyada Mossarrat Vs. Hindustan Steel Ltd., Bhilai Steel Plant, Bhilai (M.P.) and Others, .
Ordinarily, the statement which are not part of ratio decideni constitutes obiter dicta and are not authoritative but in case the obiter dicta is the part
of ratio decideni and has got direct nexus with it, then it may be binding.
159. In Municipal Committee, Amritsar Vs. Hazara Singh, , it has been held that even obiter dictum of Supreme Court should be accepted as
binding but statements on matter other than law have no binding force.
160. In a case in The Oriental Insurance Company Limited Vs. Meena Variyal and Others, , the Supreme Court ruled that obiter dicta of Supreme
Court are binding on High Courts in absence of direct pronouncement on that question elsewhere by Supreme Court but so far as Supreme Court
is concerned, it has got persuasive authority.
161. From the reading of different judgments of Supreme Court and High Courts, there appears to be no doubt to hold that ordinarily the obiter
dicta of higher Forum like Supreme Court shall be binding. Otherwise also judicial propriety demands that High Court must follow the observations
of Supreme Court and in the absence of any contrary pronouncement on the issue involved, obiter dicta of Supreme Court shall be precedents to
decide the dispute. In case the obiter dicta has got direct nexus with the ratio decideni or it is part and partial of ratio decideni, then the High Court
or the Government will have got no right to deviate from the observation made by Hon''ble Supreme Court.
162. In the present case, it appears to be willful disobedience of the different pronouncements of Hon''ble Supreme Court and this Court,
particularly, the judgment of Virendra Pal Singh Rana and Johri Mal (supra). In a recent case in Kanwar Singh Saini Vs. High Court of Delhi, ,
their Lordships of Hon''ble Supreme Court while accepting the arguments of the counsel, reaffirmed the proposition of law that whenever there is
willful disobedience or contumacious conduct deliberately flouting the order of the Court, it amounts to contempt. To reproduce relevant portion;
to quote:
23. Learned counsel for the contesting respondent has placed a very heavy reliance on the judgments of this Court in Palitana Sugar Mills Pvt. Ltd.
and Another Vs. Smt. Vilasiniben Ramachandran and Others, , and C. Elumalai and Others Vs. A.G.L. Irudayaraj and Another, , wherein this
Court held that wherever there is a willful disobedience/contumacious conduct, deliberate flouting of the order of the Court, it amounts to contempt
and it becomes the duty of the Court to exercise its inherent power to set the wrong right as a party cannot be permitted to perpetuate the wrong
by disobeying the order further.
163. Keeping in view the aforesaid broader principle and proposition of law, the division bench of this Court in the case of Virendra Pal Singh
Rana (supra), Shailendra Kumar Ojha (supra) and the judgment of Hon''ble Supreme Court in Johrimal (paras 85, 86 and 87) readwith the case of
Hirendra Pal Singh (para 20) alongwith other judgments are binding precedents, and Government has got no right to violate the same.
164. The appointment of District Government Counsel being regulated by Government Order compiled in the form of LR Manual, the impugned
Government order could not have been issued in derogation of the consistent views and opinion expressed by various pronouncement of this Court
and Hon''ble Supreme Court. The impugned Government order is not only arbitrary and an instance of non application of mind to various
pronouncements of Supreme Court but being violative of mandamus of this Court and judgment of Supreme Court (supra), hence it is
contemptuous.
(VIII) UNDERTAKING/STATEMENT
BEFORE THE COURT, SHIFTING OF
STAND AND CHANGE OF GOVERNMENT
165. In Johri Mal (supra), as we have observed, a statement; rather an undertaking was given before Hon''ble Supreme Court by the State of U.P.
that the U.P. Amendment deleting the sub-sections (4), (5) and (6) of Section 24 of the Cr.P.C. shall not make any difference since the L.R.
Manual is more exhaustive, elaborate and comprehensive and include the provision to obtain opinion of the District Judge while making
appointment on the post of District Government Counsel. Learned counsel for the State stated before the Hon''ble Supreme Court that the Legal
Remembrancer in accordance with the provision contained in the L.R. Manual being exhaustive and being a complete Code in itself shall make the
selection process independent, though Hon''ble Supreme Court doubted that the State Government shall adhere to its stand. Statement made
before the Court or undertaking given is binding. It shall always be obligatory on the part of the State Government or the litigants to adhere the
undertaking or statement given before the Court vide Sakharam Ganesh Aaravandekar and Another Vs. Mahadeo Vinayak Mathkar and Others,
and Mahesh Kumar Gandhi v. Mohammad Tajir Ali and others, 2008 (10) SCC 795.
166. In a case in J. Vasudevan Vs. T.R. Dhananjaya, , their Lordships of Hon''ble Supreme Court have expressed deep concern with regard to
the defiance of the orders passed by the Supreme Court. Relevant portion is reproduced as under:
..................It is really to see that unflinching faith of the people in the Courts remains intact. But, if the order of even the highest Court of the land is
allowed to be wilfully disobeyed and a person found guilty of contempt is let off by remitting sentence on plea of mercy, that would send wrong
signals to everybody in the country. It has been a sad experience that due regard is not always shown even to the order of the highest Court of the
country. Now, if such orders are disobeyed, the effect would be that people would lose faith in the system of administration of justice and would
desist from approaching the Court, by spending time, money and energy to fight their legal battle..................................
In one another case in Balram Singh Vs. Bhikam Chand Jain and Others, , their Lordships again expressed their concern with regard to
disobedience of the orders of the Court and observed:
7..........We must take serious view of the conduct of the contemnors in committing a breach of the undertaking in view of the growing tendency to
trifle with the Court''s orders based on undertakings with impunity.
167. In Johri Mal (supra) while defending the State amendment of 1991 with regard to deletion of sub-sections (4), (5) and (6) of Section 24 of
the Cr.P.C., the State has taken a stand that the L.R. Manual is exhaustive enough and it includes the provision to obtain opinion of the District
Judge. Now, whether the State can change its stand under the same facts and circumstances and the cause of action? In case the State takes a
stand before the Court in a matter based on same facts and circumstances defending its action, then it shall not be open for the State to change its
stand. Only option open for the State Government is to move appropriate application to the Court concerned or adhere to the stand taken before
the Court, that too before the highest Court of the country, i.e. the Supreme Court of India. The stand taken by the State Government with regard
to mandatory requirement for the opinion of the District Judge before the Supreme Court in the case of Johri Mal (supra) is not open to review
unless appropriate application is moved before the Court with regard to change of stand or Supreme Court grants permission for the purpose.
It is a matter of unflinching faith of the peoples in the Courts and must remain intact. If the order or observation of the highest Court of the country
is sidelined or stand taken before the highest Court of land is circumvented or changed, the peoples shall lose the faith in the administration of
justice and it shall be anti-thesis to the rule of law and purity of the administration of justice.
168. From the argument advanced by the parties'' counsel, one of the reason which seems to be a ground to defend the State action in issuing the
Government Order dated 17.4.2011 is the passage of time and change of Government. While deciding a case in Service Bench Writ Petition No.
980 of 2007 Dr. Yaduvir Singh v. State of U.P., a Division Bench of this Court, of which one of us (Hon''ble Devi Prasad Singh, J.) was a
member, held that with the change of Government, the decision taken by the earlier Government cannot be changed arbitrarily. The successor
Government is bound to the decision taken by the earlier Government unless the decision taken suffers from substantial illegality or the abuse of
power vide State of Karnataka and Another Vs. All India Manufacturers Organization and Others, ; State of U.P. and Another Vs. Johri Mal, and
State of Haryana Vs. State of Punjab and Another, .
169. Though the State Government has got right to issue fresh Government Order with regard to subject-matter in question but as held (supra), a
Government Order cannot be issued changing the earlier provision in case earlier one has been affirmed by the Supreme Court expressing the
necessity for its continuance. Even if there is a change of Government, it shall be binding on the subsequent Government except to change the same
in the event of substantial illegality with the leave of Court.
170. In a recent case State of Tamilnadu and others v. K. Shyam Sunder and others, 2008 (8) SCC 737, Hon''ble Supreme Court has considered
this aspect of the matter and including the aforementioned cases. Their Lordships held that the Government action should be tested on the
touchstone of justice, equity and fair play and in case the reasons are not based on values but to achieve popular accolade, the decision cannot be
allowed to operate. To reproduce relevant portion from the judgment of K. Shyam Sunder (supra); to quote:
31. The Government has to rise above the nexus of vested interests and nepotism and eschew window-dressing.
36...the principles of governance have to be tested on the touchstone of justice, equity, fair play and if a decision is not based on justice, equity and
fair play and has taken into consideration other matters, though on the face of it, the decision may look legitimate but as a matter of fact, the
reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate.
(Vide: Onkar Lal Bajaj v. Union of India, SCC p. 691, para 36).
32. In State of Karnataka v. All India Manufacturers Organisation, this Court examined under what circumstances the Government should revoke
a decision taken by an earlier Government. The Court held that an instrumentality of the State cannot have a case to plead contrary from that of the
State and the policy in respect of a particular project adopted by the State Government should not be changed with the change of the Government.
The Court further held as under: (SCC p. 706, para 59)
59...It is trite law that when one of the contracting parties is State within the meaning of Article 12 of the Constitution, it does not cease to enjoy
the character of ""State"" and, therefore, it is subjected to all the obligations that ""State"" has under the Constitution. When the State''s acts of
omission or commission are tainted with extreme arbitrariness and with mala fides, it is certainly subject to interference by the Constitutional
Courts.
(Emphasis added)
33. While deciding the said case, reliance had been placed by the Court on its earlier judgments in State of U.P. v. Johri Mal, and State of
Haryana v. State of Punjab. In the former, this Court held that the panel of District Government Counsel should not be changed only on the ground
that the panel had been prepared by the earlier Government. In the latter case, while dealing with the river water-sharing dispute between two
States, the Court observed thus: (SCC p. 538, para 16)
16.........in the matter of governance of a State or in the matter of execution of a decision taken by a previous Government, on the basis of a
consensus arrived at, which does not involve any political philosophy, the succeeding Government must be held duty-bound to continue and carry
on the unfinished job rather than putting a stop to the same.
34. In M.I. Builders (P) Ltd. v. V. Radhey Shyam Sahu, while dealing with a similar issue, this Court held that Mahapalika being a continuing body
can be estopped from changing its stand in a given case, but where, after holding enquiry, it came to the conclusion that action was not in
conformity with law, there cannot be estoppel against the Mahapalika.
35. Thus, it is clear from the above that unless it is found that act done by the authority earlier in existence is either contrary to statutory provisions,
is unreasonable, or is against public interest, the State should not change its stand merely because the other political party has come into power.
Political agenda of an individual or a political party should not be subversive of rule of law.
171. In view of above, the impugned Government Order could not have been issued by the State Government in contravention of various
pronouncements of Hon''ble Supreme Court and of this Court, mainly because of change of Government or for any reason whatsoever that too
without discussing as to how the judgment of Hon''ble Supreme Court and this Court suffers from illegality or necessity arisen by the passage of
time.
172. One of the arguments advanced by the learned counsel for the State Shri R.K. Singh is of choice and discretion of the State in appointment of
Government counsel. In democratic polity, as held by the Hon''ble Supreme Court, in a catena of judgments, no public body, authority or
institution possess unfettered discretion. The discretion should be exercised only for public good and not for any other purpose. While exercising
discretion, the State authorities are not applying their mind to secure own interest but they are discharging their statutory obligation to secure public
interest.
173. In Sharp v. Wakefield, 1891 AC 173, 179, Lord Halsbury rightly observed as under:
[D]iscretion'' means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the
rules of reason and justice, not according to private opinion..... according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but
legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine
himself....
174. Hon''ble Supreme Court in a case in Union of India (UOI) Vs. Kuldeep Singh, , has held that the discretion is to know through law what is
just. To quote:
Discretion is to know through law what is just. Where a judge has and exercises a judicial discretion his order is unappealable unless he did so
under a mistake of law or fact or in disregard of principle, or after taking into account irrelevant matters. It will help to show this if it can be shown
that there were no materials on which he could exercise his discretion in the way he did......
Their Lordships of Hon''ble Supreme Court further proceeded to hold as under:
20. When anything is left to any person, judge or Magistrate to be done according to his discretion, the law intends it must be done with sound
discretion, and according to law. (See Tomlin''s Law Dictionary). In its ordinary meaning, the word ""discretion"" signifies unrestrained exercise of
choice or will; freedom to act according to one''s own judgment; unrestrained exercise of will; the liberty or power of acting without control other
than one''s own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in
certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others.
Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law.
(See Tomlin''s Law Dictionary)
21. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a
person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate
judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and
substance, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons. When it is
said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice,
not according to private opinion; according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must
be exercised within the limit, to which an honest man, competent to the discharge of his office out to confine himself (per Lord Halsbury, L.C., in
Sharp v. Wakefield). (Also see S.G. Jaisinghani v. Union of India).
22. The word ""discretion"" standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from
folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies
vigilant circumspection and care; therefore, where the legislature concedes discretion it also imposes a heavy responsibility. ""The discretion of a
judge is the law of tyrants; it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper and passion. In
the best it is often times caprice; in the worst it is every vice, folly, and passion to which human nature is liable."" Said Lord Camden, L.C.J., in
Hindson and Kersey.
175. In view of above in case the statutory discretion is vested in an authority then such discretion should be exercised not in arbitrary, whimsical
and fanciful manner. It must be reflected from the outcome of event that the authority concerned has exercised discretion within the sound principle
of law, skill and wisdom with vigilant circumspection and care. The discretionary power imposes a heavy responsibility on a person or authority.
The latitude or liberty accorded by statute, Circular or Order to the higher authority does not permit to exercise such power in unjust and unfair
manner. In the case of Kuldeep Singh (supra), their Lordships of Apex Court further held as under:
If a certain latitude or liberty is accorded by a statute or rules to a judge as distinguished from a ministerial or administrative official, in adjudicating
on matters brought before him, it is judicial discretion. It limits and regulates the exercise of discretion, and prevents it from being wholly absolute,
capricious, or exempt from review.
(IX) DOCTRINE OF FINALITY
176. We have taken note of the order, passed by Hon''ble Supreme Court (supra) while disposing of the Special Leave Petition against the
judgment of this Court in the case of Shailendra Kumar Ojha (Supra). Thus, the question with regard to opinion of the District Judge attained
finality up to the Apex Court. It is unfortunate; rather unfair on the part of the State Government not to apprise Hon''ble Supreme Court in
subsequent proceedings with regard to finality of issue adjudicated by this Court. There appears to be concealment of fact on the part of the State
Government, coupled with unfair practice. Not only the State Government but office of the Legal Remembrancer has also not approached the
Court and even Hon''ble Supreme Court with clean hands. Doctrine of finality is the well-settled proposition of law and once an issue is finally
adjudicated by the Court, then it is not open to be re-agitated under the writ jurisdiction or the judgment cannot be overruled by executive
instructions (supra). Even the correctness of the judgment could not be looked into in later proceedings.
Keeping in view the fact that Hon''ble Supreme Court has issued a mandamus directing the State of U.P. to comply with the judgment of
Shailendra Kumar Ojha (supra) whereby consultation with the District Judge has been upheld, it was not open to the State of U.P. to issue the
impugned Government Order amending the L.R. Manual contrary to mandamus issued by this Court as well as Hon''ble Supreme Court unless
direction issued by the Hon''ble Supreme Court would have been modified at the behest of the State Government. This fact has not been brought
into notice of this Court and Hon''ble Supreme Court in subsequent proceedings by the State Government or office of the Legal Remembrancer.
177. Correctness of a judicial order, which has attained finality cannot be examined in a writ jurisdiction. (Vide Naresh Shridhar Mirajkar and
Others Vs. State of Maharashtra and Another, ; Chief Secretary to Government of Andhra Pradesh and another Vs. V.J. Cornelius and others, ;
Cotton Corporation of India Limited Vs. United Industrial Bank Limited and Others, ; Khoday Distilleries Ltd. and Another Vs. Registrar General,
Supreme Court of India, ; A.R. Antulay Vs. R.S. Nayak and Another, ; State of West Bengal and Others Vs. Debdas Kumar and Others, and
Krishna Swami Vs. Union of India and another, .
178. Hon''ble Supreme Court in Krishna Swami (supra) further explained that Art 32 petition filed in A.R. Antulay''s case (supra) challenging the
decision of the Hon''ble Supreme Court was dismissed and it was only in an appeal filed subsequently by A.R. Antulay against an order of the
Bombay High Court made during trial, the relief was granted to him. While dismissing the earlier writ petition under Article 32 of the Constitution
filed by Antulay, the Hon''ble Supreme Court had observed as under:
.......it is the decision and not the reasons in support thereof, even if there is additional material that was subsequently discovered, it would be little
avail to assail the correctness of the judgment......
The writ petition challenging the validity of the order and judgment passed by the Court as nullity or otherwise incorrect, cannot be
entertained..........
Similar view has been reiterated by Hon''ble Supreme Court in P. Ashokan Vs. Union of India and Another, .
Thus, it is neither permissible nor desirable to disturb the judgments and decrees which have attained finality.
179. The argument, advanced by Mr. Raghvendra Kumar Singh, learned counsel appearing on behalf of the State of U.P. seems to be incorrect
on the premises that the dismissal of Special Leave Petition was mechanical one. It is evident from the order of Hon''ble Supreme Court (supra)
that while dismissing the Special Leave Petition, their Lordships of Hon''ble Supreme Court have affirmed the judgment not by mechanical order
but by a speaking order, may be in brevity.
Otherwise also, question relates to finality of an issue adjudicated by this Court affirmed by Hon''ble Supreme Court. The issue which has been
finally adjudicated is not open to judicial review in subsequent proceedings (supra). Hence, on this score also, the State Government exceeded its
jurisdiction while passing the impugned Government Order amending the L.R. Manual contrary to the mandate of Virendra Pal Singh Ran''s case
(supra), followed by Shailendra Kumar Ojha''s case (supra).
(X) SECTION 25-A OF THE CODE OF
CRIMINAL PROCEDURE and REPUGNANCY
180. The Code of Criminal Procedure was amended by Act of Parliament, i.e. Cr.P.C. (Amendment) Act, 2005 enforced from 23.6.2006 vide
notification dated 21.6.2006. Section 25-A has been added. For convenience, the same is reproduced as under:
[25-A (1) The State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors
of Prosecution as it thinks fit.
2. A person shall be eligible to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he has been in practice as an
advocate for not less than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High Court.
3. The Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the administrative control of the Head
of the Home Department in the State.
4. Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution.
5. Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section
(1), or as the case may be, sub-section (8), of section 24 to conduct cases in the High Court shall be subordinate to the Director of Prosecution.
6. Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (3)
or as the case may be, sub-section (8), of Section 24 to conduct case in District Courts and every Assistant Public Prosecutor appointed under
sub-section (1) of Section 25 shall be subordinate to the Deputy Director of Prosecution.
7. The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy
Directors of Prosecution have been appointed shall be such as the State Government may, by notification specify.
8. The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecution.
The provisions contained in Section 25-A have been enacted by the Parliament keeping in view the worldwide steps taken to make the
prosecution agency independent and uninfluenced by the political system. The prosecuting branch in United States of America and England are
independent. They are not under the Government or the politicians. While assisting the Court, they have right to take independent decision and if
necessary, they may decline to consent for prosecution.
Addition of Section 25-A is the major step taken by the Parliament to make the prosecuting branch independent being necessary for the purity of
administration of justice and check the abuse of power by the elected representatives while holding public office in the Government.
Section 25-A provides that the Government shall establish a Directorate of Prosecution and the Director of Prosecution shall be appointed with the
concurrence of the Chief Justice of the High Court.
181. According to Law Lexicon Dictionary, the word, ""concurrent"" has been defined as under:
Concurrent. Having the same authority; acting in conjunction; existing together agreeing in the same act; contributing to the same event;
contemporaneous; running together; co-operating; contributing to the same effect; accompanying; conjoined; associate; concomitant; joint and
equal (as) concurrent sentences. Running together in time or space; covering the same ground.
Accordingly, the Parliament to its wisdom has made mandatory to establish Directorate of Prosecution under whose supervisory control, the
lawyers of High Court and Supreme Court shall discharge their obligation keeping themselves independent of the Government interference.
182. Though, Section 25-A shall not substitute the deleted sub-sections (4), (5) and (6) of Section 24 but intention of the Parliament is quite clear
and being a provision of the statute, it shall be obligatory on the part of the State not to do anything which may go contrary to the spirit of Section
25-A of the CrPC. In case the impugned Government Order dated 17.4.2011 is sustained, it shall amount to permit the State Government to
discharge its obligation in the matter of appointment of Government counsel contrary to the spirit and ethos of statutory provisions provided under
Section 25-A of the Cr.P.C. (supra).
183. There is one other reason why the Government could not have passed the impugned order. Article 254 deals with inconsistency between the
law made by the Parliament and the law made by the Legislature of the State. It further provides that in the event of conflict the law framed by the
Parliament shall prevail. The proviso to Clause (2) further provides that the Parliament will have right to enact at any time any law with respect to
the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. Article 254 is
reproduced as under:
254. (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is
competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the
provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case
may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision
repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the
Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law
adding to, amending, varying or repealing the law so made by the Legislature of the State.
Now, it is settled proposition of law that the Union law shall prevail over the law made by the State and any law made by the Parliament at later
stage to the extent of repugnancy will override the State law and will have binding effect vide Deep Chand Vs. The State of Uttar Pradesh and
Others, ; Prem Nath Kaul Vs. The State of Jammu and Kashmir, ; Zaverbhai Amaidas Vs. The State of Bombay, .
It is further settled law that the repugnancy is not further confined where there is a direct conflict between the two legislatures. It may arise where
both laws operate in the same field and the two cannot possibly stand together vide M. Karunanidhi Vs. Union of India and Another, .
In the case of Karunanidhi (supra), Hon''ble Supreme Court held as under:
35. In the case of Megh Raj and others v. Allah Rakhia and others, where Varadachariar, J. speaking for the Court pointed out that where as in
Australia a provision similar to Section 107 of the Government of India Act, 1935 existed in the shape of Section 109 of the Australian
Constitution, there was no corresponding provision in the American Constitution. Similarly, the Canadian cases have laid down a principle too
narrow for application to Indian cases. According to the: learned Judge, the safe rule to follow was that where the paramount legislation does not
purport to be exhaustive or unqualified there is no inconsistency and in this connection observed as follows:
The principle of that decision is that where the paramount legislation does not purport to be exhaustive or unqualified, but itself permits or
recognises other laws restricting or qualifying the general provision made in it, it cannot be said that any qualification or restriction introduced by
another law is repugnant to the provision in the main or paramount law.
The position will be even more obvious, if another test of repugnancy which has been suggested in some cases is applied, namely, whether there is
such an inconsistency between the two provisions that one must be taken to repeal the other by necessary implication.
It should be noticed that under Section 24(8), the Government has been empowered to engage special counsel without consultation with the
District Judge, that has been diluted, placing such counsel under the subordination of Director, Prosecution who is appointed under Section 25-A
with concurrence of the Chief Justice of High Court.
In view of above, a combined reading of Section 25-A and the impugned Government Order by which the L.R. Manual has been amended, would
reveal that both cannot stand together. The former make the prosecution branch independent but the latter put it under the State Government.
Hence, the impugned Government order is violative of Section 25-A and ultra vires.
(XI) OFFICE OF THE LEGAL
REMEMBRANCER OF THE STATE OF
U.P. AND ITS FAILURE
184. Office of the Legal Remembrancer in the State of U.P. is supposed to be an advisory body to the State Government. The Legal
Remembrancer holds the rank of District Judge and others of the rank of Additional District Judges or Civil Judge (Senior Division). According to
circulars issued from time to time of the High Court, ordinarily, the senior-most District Judges are appointed to the post of Registrar General in the
High Court and Legal Remembrancer in the Government. However, since decade, the seniority has been given go-bye.
185. Being officers belonging to subordinate judiciary of the State, it is always expected from the Legal Remembrancer and Addl. Legal
Remembrancers to tender not only correct but independent and fair advice to the Government. They have to stick to rules and with all firmness
while giving advice in different matters to the State Government.
186. But it appears that since two or more decades, the judicial officers after joining office of the ''Legal Remembrancer'' forget their identity and
merge themselves with the stream of bureaucracy. They are following the command of ministers, forgetting their duties and seems to tender advice
which suit to the Government. This is sorry state of affairs.
187. This fact has been noted by the Hon''ble Supreme Court in the case of Kumari Shrilekha Vidyarthi (supra). In the case of Kumari Shrilekha
Vidyarthi (supra), the controversy before the Supreme Court was cancellation of appointment of District Government Counsels in the State of U.P.
by single stroke of pen and by common order passed by the State Government in utter disregard to provisions contained in L.R. Manual. Their
Lordships of Hon''ble Supreme Court have shown their deep concern to the falling standard of the office of the Legal Remembrancer of the State
of U.P. and observed as under:
43. Non-application of mind to individual cases before issuing a general circular terminating all such appointments throughout the State of U.P. is
itself eloquent of the arbitrariness writ large on the face of the circular. It is obvious that issuance of the impugned circular was not governed by any
rule but by the whim or fancy of someone totally unaware of the requirements of rule of law, neatly spelled out in the case of John Wilkes more
than two centuries back and quoted with approval by this Court almost a quarter century earlier in Jaisinghani''s case. We have considered it
necessary to re-emphasize this aspect and reiterate what has been said so often by this Court only because we find that some persons entrusted
with the task of governance appear to be unaware of the fact that the exercise of discretion they have must be governed by rule, not by humour,
whim, caprice or fancy or personal predilections. It also disturbs us to find that the Legal Remembrancer''s Department of the State of U.P. which
has the duty to correctly advise the State Government in such matters, overlooked the obvious and failed to discharge its bounden duty of correctly
advising the State Government in matters of law. We would like to believe that the impugned circular was issued for want of proper legal advice in
this behalf instead of any ulterior motive suggested by the petitioners/appellants.
188. Inspite of aforesaid dictum of Kumari Shrilekha Vidyarthi (supra), the Legal Remembrancer of the State had again committed the same
wrong while issuing circular dated 17.4.2011 which contains sweeping direction to all the District Magistrates of the State of U.P. to send names
to fill up the vacancies of District Government Counsels without taking care to the provisions contained in the L.R. Manual. It appears that
according to L.R''s opinion, it was not necessary to consider the persons working as District Government Counsel for renewal of their services and
pass appropriate order with regard to renewal or rejection of their cases in terms of L.R. Manual. It was this circular which was complied by the
District Magistrates throughout the State and notices were affixed over the notice board of the respective districts inviting applications within a day
or two. In one case, application was invited on the same day within five hours on the instruction issued to the District Magistrate from Lucknow to
apprise Chief Minister in a scheduled meeting.
189. During course of hearing of writ petition No. 3919 (M/B) of 2011 on 28.4.2011, a Division Bench of this Court invited attention to the fact
that no panel could be prepared or fresh recruitment can be made in view of settled proposition of law (supra) without considering the renewal of
serving incumbents and statement was given that no appointment shall be done unless the case of renewal is considered. To quote relevant portion
from the order dated 28.4.2011; to quote:
Sri D.K. Upadhyay, learned Chief Standing Counsel, at the outset, has stated that the order issued by the Principal Secretary (Law)/Legal
Remembrance requiring the District Magistrates to forward the panel of advocates for appointment on the post of Government Counsel in the
entire State of U.P., since has been issued without considering renewal of the persons occupying the office including the petitioners, therefore, the
panel already sent by the District Magistrates shall not be considered, till the renewal of the petitioners is considered and appropriate orders are
passed.
Sri D.K. Upadhyaya, further clarifies that the State Government would not make any fresh appointment unless renewal of the petitioners and all
other Government Counsel whose renewal has become due is considered and disposed of.
We, therefore, as an interim measure direct that the panel if already forwarded by the District Magistrates shall not be considered and that the case
of renewal of the petitioners as well as others whose renewal is pending consideration shall be considered first and only thereafter if need be
exercise for fresh appointment shall be done in accordance with sub-clause 5 of Clause 7.08 of Legal Remembrancer''s Manual. The petitioners
shall be allowed to discharge their functions and they shall also be paid their remuneration.
Two weeks'' time is granted to the learned counsel for the respondents to file counter-affidavit.
List thereafter.
190. Inspite of undertaking given before this Court, it appears that on one hand, this Court was assured that without considering renewal, no
appointment shall be done and on the other hand, on the same day, in violation of the L.R. Manual, that too without intimation to the Court,
appointment was done with the approval of the Principal Secretary (Law) which has been noted with deep concerned by a Division Bench of this
Court while passing an order dated 3.5.2011 (writ petition No. 4179 of 2011), relevant portion of which is reproduced as under:
Notice on behalf of the opposite parties has been accepted by learned Chief Standing Counsel.
We take notice of the fact that on 28.4.2011 this Court issued an interim direction on the specific statement given by the learned Chief Standing
Counsel, on the basis of instructions received, that till the matter of renewal of the petitioner is not considered in accordance with rules, no
appointment shall be made from the panel already sent. This Court also passed an order that the panel already sent shall not be considered till such
time and also if need be exercise for fresh appointment shall be done in accordance with sub-clause 5 of Clause 7.08 of Legal Rememberancer''s
Manual. Strangely enough, on that very date i.e. 28.4.2011, the present impugned order has been passed under the signature of one Sri Brijesh
Kumar, Special Secretary and the approval of the same has been got from Principal Secretary, Law, namely Sri K.K. Sharma.
In case such an order was passed prior to passing of the interim order by this Court, the same should have been intimated to the learned Chief
Standing Counsel for being apprised to the Court and if the same has been passed after the passing of the interim order then this is a case where
interim order passed by this Court has not been followed. The haste in issuing such an order by the respondents requires explanation from the
Principal Secretary, Law.
Sri D.K. Upadhyay, learned Chief Standing Counsel shall seek specific instructions in the matter.
191. It appears that during the course of hearing of the bunch of writ petitions, a Division Bench of this Court has summoned the Principal
Secretary (Law) and Addl. Secretary, Law with record by order dated 10.1.2011. Feeling aggrieved, a Special Leave to Appeal (Civil) No. (s).
2357/2011 was filed, in which their Lordships of Hon''ble Supreme Court have passed the following order on 25.1.2011:
On the request of Mr. P.S. Patwalia, the learned counsel for the petitioners, the matter is allowed to stand over by two weeks to enable the
petitioners to file application for clarification of paragraph 25 of the judgment dated December, 3 2010 rendered by Three Judge Bench of this
Court, in Civil Appeal Nos. 10229-30 of 2010.
The interim order impugned in the petition indicates that the High Court had directed by order dated January 6, 2011 that the Principal Secretary
(Law) as well as Additional Secretary (Law) shall appear in person alongwith the record with regard to controversy raised in the writ petition and
pursuant to the said direction the Principal Secretary, Law Department alongwith learned Advocate General had remained present in the Court on
January 12, 2011.
Mr. Patwalia learned counsel for the petitioners on instruction states that similar directions have been issued by the High Court in the other writ
petitions also.
This Court is of the opinion that the controversy raised in the petitions pending before the High Court has to be decided on the basis of the
averments made in the petitions and the averments made in the reply affidavits in the light of decided cases. For the purpose of deciding the
controversy raised in the petitions, the presence of Principal Secretary, Law Department and Additional Secretary (Law) is not necessary at all.
Therefore, the direction to the Principal Secretary (Law) and Additional Secretary (Law) to remain present in the Court is stayed till further orders.
List the matter for further hearing after two weeks.
192. Thus, the Hon''ble Supreme Court by the aforesaid order dated 25.1.2011, had directed to decide the issue on the basis of the pleading on
record and the argument made by the petitioners and respondents. In the meantime, the case was nominated by Hon''ble Senior Judge of this
Court to the present Bench by order dated 25.5.2011. During the course of hearing on 13.9.2011, we have directed Mr. I.H. Farooqui, learned
Assistant Solicitor General of India to assist the Court by producing the Law Commission''s Report with regard to CrPC and amendment done
thereon. During hearing, Mr. S.K. Kalia, learned Senior Counsel invited attention to the newspaper reports, according to which, some of the
District Government Counsels appointed have criminal antecedent. To reproduce relevant portion from the order dated 13.9.2011:
During the course of hearing, attention has also been invited towards the newspaper dated 12th September, 2011, which reveals that in the District
Mathura with regard to lawyers'' tenure of District Government Counsel, the District Judge has sent an adverse report that he is not competent and
even know the basic knowledge of law. Similarly, reports further show that one Sri Noor Ahmed Ansari is a criminal history-sheeter, but he has
been appointed as Government Counsel of District Jhansi. In District Mau, Sri Vinod Kumar Pandey and Sri Ram Chandra Pradhan have been
appointed as District Government Counsel though they are involved in serious criminal cases. Photo copy of the newspaper dated 12th
September, 2011 is taken on record.
Learned Additional Chief Standing Counsel may seek instructions with regard to the antecedents of the said counsels against whom newspaper
contains news item. Copy of newspaper be provided to him.
Put up tomorrow i.e. 14.9.2011.
Let a copy of this order be provided to the parties'' counsel today itself.
193. Inspite of this order, the Principal Secretary, Law has not filed any affidavit to apprise the Court whether the persons having criminal
antecedents have been appointed. While producing the record in terms of the order dated 13.9.2011, entire record was not produced containing
instructions of the State Government. Attention of the Court was not invited by the learned Standing Counsel with regard to the order passed by
Hon''ble Supreme Court on 25.1.2011 (supra).
194. The Principal Secretary, Law appeared on 16.9.2011 in compliance of the order passed by this Court. The records produced before the
Court were not complete and the papers contained in the paper book were not in seriatim and kept in utter disregard of Secretariat Manual.
Keeping the papers unsystematically always give liberty to the office to change the same or replace by other papers. Relevant portion from the
order dated 16.9.2011 is reproduced as under:
1. Principal Secretary (Law) Sri K. K. Sharma is present in person in pursuance to the order passed by this Court. He has seen the notice dated
28.4.2011, filed as Annexure 2 to the writ petition. On query made by the Court, he submitted that no instruction was issued by him or his office to
District Magistrate Gautambuddh Nagar to send the list of penal of lawyers on the same day i.e. 20.4.2011. He admits that notice dated
17.4.2011 directing the District Magistrates all over the State to send the panel of lawyers for appointment on the post of District Government
Counsels, was sent by his Office. The notice was circulated all over the State. The notice does not provide any specific period to forward the
panel of lawyers.
2. Sri K. K. Sharma, Principal Secretary (Law) has produced the compilation of Rules regulating the working of Secretariat under the title
Secretariat Manual"". Rules 124, 125, 126 deals with the maintenance of records. Rules 127, 128, 129 deals with the note-sheet, which are
reproduced as under:
3. Apart from above Rules, Rule, 131, 132, other provisions contained in the manual regulates the functioning of Secretariat office.
4. Record produced before the Court has been shown to the Principal Secretary (Law) who admits that record is not in conformity with the Rules.
The purpose of Rule is to ensure that records are kept in proper manner and it may not be manipulated for any reason whatsoever. The record
produced before the Court has not been numbered alongwith note sheet, as provided in the manual. Though, it admittedly, contains the signature of
Principal Secretary (Law) at some places alongwith Brijesh Kumar, Special Secretary on some of the typed note sheets containing remarks.
5. Note-sheet has not been maintained separately. However, it does not contain any direction to District Magistrate to send the panel list on the
same day. It shall be relevant to mention that old file of Gautambuddh Nagar seems to contain serial number and note sheet separately to some
extent.
6. Principal Secretary (Law) has read the office record and informed the Court that in the office record, the case of Narendra Kumar Singh has
been rejected on the ground that it is not necessary to give reason and Government has got power to refuse the renewal without indicating the
reason.
7. From the record of the Office, the Principal Secretary (Law), placed before this Court, the proceedings taken with regard to appointment and
renewal of District Gautambudh Nagar, is reproduced as under:
This Court took the view that in the matter of engagement of District Government Counsel a concept of public office does not come into play. The
Choice of the counsel is for the Government and none can claim a right to be counsel, There is no right for appointment of Government Counsel.
8. Attention of Principal Secretary (Law) has been invited to the letters of District Magistrate, dated 23.2.2003 Annexure 4, letter dated
30.10.2006 Annexure 5, letter dated 28.5.2007, Annexure 6 and letter dated 2.7.2009 Annexure 7, followed by the last letter dated 14.1.2011.
9. So far as the letter dated 14.1.2011 of the District Magistrate is concerned, in pursuance of the report of the District Magistrate dated
21.4.2011, fresh appointment has been made and the case of the petitioner has been rejected by the order dated 28.4.2011. From the record, it
does not transpire as to how once the District Magistrate found the petitioner fit for renewal while sending letter dated 14.1.2011, only after a
week, the petitioner became unfit, and renewal was refused.
10. Sri K.K. Sharma Principal Secretary (Law) is directed to file another affidavit in a week explaining the reasons because of which the matter
was kept pending by the Government since 2003 and question with regard to renewal of the petitioner was not considered in spite of repeated
letters sent by the District Magistrate.
11. He is further directed to place on record while filing affidavit, the date of notice inviting applications from the lawyers, was published in different
districts of the State of U.P. by the respective District Magistrates, to apply for the post of District Government Counsel and the dates when the
District Magistrates have sent their recommendations to the State Government from their Office. He shall submit factual situation how the decision
was taken while declining to renew the case of earlier incumbents at the stage of L R Office and by the Government.
12. Sri Hridayesh Kumar, District Magistrate, Gautam Budh Nagar, is present in person in pursuance of the order passed by this Court. He makes
a statement that at the time, when notice was displayed on 20.4.2011, he was not the District Magistrate of the District, inviting applications from
the lawyers. He submits that Mr. Sheetal Verma was officiating District Magistrate and Sri Deepak Agarwal was the District Magistrate.
195. We express our deep anguish and concern that even on 16.9.2011, when the Principal Secretary, Law was present in person in the Court
alongwith the record, the attention of the Court was not invited to the order dated 25.1.2011, passed by Hon''ble Supreme Court (supra) whereby
personal appearance was prohibited with direction to decide the controversy on the basis of the pleading on record.
196. When the records were produced on 28.9.2011, it was found that the entire records were not produced. Hence, we have passed the
following order:
Ms. Sheetal Verma, who was officiating as District Magistrate, Gautambudh Nagar on 20th April, 2011 has been shown the notice of the same
date, a copy of which has been filed as Annexure No. 2 to the Writ Petition No. 3922 (M/B) of 2011.
Specific query has been made by the Court as to who told her to display the notice inviting the application from the lawyers on the same date. In
response to query made by the Court, she made a statement that she was informed by the District Magistrate on telephone that on a meeting was
scheduled at Lucknow with the Chief Minister of the State, in consequence thereof, the District Magistrate had instructed her to place the notice on
the notice board on 20th April, 2011 inviting application from the lawyers for preparation of panel on the same day by 5:00 p.m. In pursuance to
the telephonic instruction given by the District Magistrate Sri Deepak Agarwal, she affixed the notice on the notice board on 20th April, 2011
inviting applications from the lawyers for preparation of panel. She states that she had only complied with the order passed by the then District
Magistrate Sri Deepak Agarwal and affixed the notice on the notice board in the office. On the next day i.e. 21st April, 2011, Sri Deepak
Agarwal, District Magistrate came back and resume the duty and he sent the panel list of the Advocates to the office of Principal Secretary (Law)
containing the names of Advocates.
She further states that she is not aware to any proceedings taken with regard to preparation of the panel list of the Advocates except the affixation
of notice over the notice board. She categorically states that she had only complied with the order passed by the District Magistrate and her role
was only to affix the notice over the notice board informing the lawyers inviting the application for the purpose.
198. On the next day, again we were not informed by the learned counsel for the State or the officer present in the Court with regard to the order
dated 25.1.2011. On 29.9.2011, when the records were produced, they were found to be in shabby condition and kept in unsystematic manner.
It was not possible for this Court to find out the date when the vacancies were advertised, when the applications were invited and how and in what
manner, the panel was prepared. Hence, we constituted a committed of Officer of Special Duty of the High Court by order dated 27.9.2011 to
submit factual report on the basis of the record submitted by the office of the Legal Remembrancer.
198. On 29.9.2011 also, learned counsel representing the State and officers present in the Court had not invited attention to the order dated
25.1.2011. It appears that the State of U.P. has filed Special Leave to Appeal (Civil) No (s). 28356-28358/2011 which was decided finally by
Hon''ble Supreme Court by order dated 11.10.2011. Hon''ble Supreme Court has decided the SLP with observation that the High Court should
take note of the earlier order dated 25.1.2011. To reproduce the order dated 11.10.2011, passed by Hon''ble Supreme Court; to quote:
Taken on board.
Heard learned senior counsel appearing on behalf of the petitioners as well as for the respondent.
On going through the various orders passed by the High Court we feel that the ends of justice would be met if the main writ petition itself is
disposed of by the High Court. Accordingly, we request the High Court to dispose of the writ petition on merits, in accordance with law without
insisting the presence of officials of the State and the Union and records relating to appointment of Law Officers. We make it clear that with the
available material the High Court has to pass an order one way or other. We also request the High Court to take note of the earlier order of this
Court dated 25th January, 2011 passed in SLP (C) No. 2357 of 2011.
The special leave petitions are disposed of accordingly.
199. It appears that the State of U.P. took plea before the Hon''ble Supreme Court that the High Court acted in contravention of the order dated
25.1.2011. Needless to say that the office of the Legal Remembrancer as well as State of U.P. while pursuing the matter in the Supreme Court
had not placed correct fact. Earlier, the matter was heard by different Bench and only by order passed by Hon''ble Senior Judge, the present
Bench presiding by one of us was nominated. In case, the learned counsel for the State of U.P. or the Principal Secretary, Law Shri K.K. Sharma
or other officers who were present in the Court would have informed with regard to order of Supreme Court dated 25.1.2011, then there was no
reason for this Court to call for the record or secure personal attendance, though the records were summoned with direction for personal
attendance under compelling circumstances.
200. It appears that again on the recommendation of the office of the Legal Remembrancer, the State of U.P. filed a Special Leave Petition against
the order dated 12.10.2011. Hon''ble Supreme Court again disposed of the S.L.P. and passed the following order on 19.10.2011:
Taken on board.
Heard learned for the parties.
Leave granted.
In view of the earlier orders dated 25.1.2011 and 11.10.2011, it is not necessary for the High Court to call for any further affidavit relating to the
appointing of Government Advocates in the District Courts. Therefore, we request the High Court to dispose of the writ petitions on the basis of
the material available on record. If any material available on record is not in consonance with the aforesaid orders passed by this Court, the same
be not taken into consideration.
With the aforesaid observations, the appeal is disposed of.
201. The learned counsel for the petitioners have filed the copy of the Special Leave Petition (Civil) No. 28356-58 of 2011 filed against the
interim order dated 16.9.2011, 28.9.2011 and 29.9.2011. In the said SLP filed before Hon''ble Supreme Court, the State of U.P. had pleaded as
under:
It is further submitted that this Hon''ble Court in the case of State of U.P. and others v. Ashok Kumar Gupta [SLP (Civil) No. 2357/2011] was
pleased, vide its order dated 25.1.2011, to observe as under:
This Court is of the opinion that the controversy raised in the petitions pending before the High Court has to be decided on the basis of the
averments made in the petitions and the averments made in the reply affidavits in the light of decided cases. For the purpose of deciding the
controversy raised in the petitions, the presence of Principal Secretary, Law Department and Additional Secretary (Law) is not necessary at all.
202. Aforesaid pleading was made in the SLP without pointing out to the Hon''ble Supreme Court that the bench was changed and to the present
Bench, the respondents had not invited attention to the order dated 25.1.2011. Unless the State or the Principal Secretary, Law invite the attention
of the Court to the order dated 25.1.2011, it was not possible for this Court to take notice with regard to direction issued by the Hon''ble
Supreme Court.
203. Position remains the same when the State of U.P. filed another SLP against the order dated 12.10.2011 passed by this Court. In the said
SLP again, the respondent State have pleaded as under:
It is relevant to mention that this Hon''ble Court in the case of Special Leave Petition No. 2337/2011 titled as State of U.P. and others v. Ashok
Kumar Gupta was pleaded, vide its order dated 25.1.2011 to hold as under:
This Court is of the opinion that the controversy raised in the petitions pending before the High Court has to be decided on the basis of the
averments made in the petitions and the averments made in the Reply Affidavits in the light of decided cases. For the purpose of deciding the
controversy raised in the petitions, the presence of Principal Secretary, Law Department and Additional Secretary (Law) is not necessary at all.
Thus, it is evident that this Hon''ble Court has clearly stated that the Writ petition should be decided on the pleadings of the parties and not beyond
that.
204. Thus, the Principal Secretary, Law as well as State of U.P. is liable for the concealment of fact before the Supreme Court. However, it is for
the Supreme Court to look into the matter in case apprised but so far as this Court is concerned, we are deeply concerned to the State action in
not apprising with regard to the order dated 25.1.2011, passed by Hon''ble Supreme Court. Once, the bench was changed and the present Bench
was nominated and Principal Secretary, Law himself appeared in person, then it was incumbent on the learned counsel for the State of U.P. as well
as Principal Secretary of Law to apprise this Bench with regard to the order dated 25.1.2011, passed by Supreme Court. Law is very well-settled
that concealment of material fact from the Court is a gross mis-conduct and amount to commission of criminal contempt vide.
205. It may be noted that on our direction, copy of the order dated 25.1.2011 was filed by the learned Standing Counsel on 21.10.2011 which
has been recorded in the order sheet on 21.10.2011. The order passed on 21.10.2011 is reproduced as under:
In pursuance to the order passed by this Court on 14.10.2011, learned Standing Counsel has placed the copy of the order dated 25.1.2011
passed by the Hon''ble Supreme Court, which is taken on record. Recent order dated 19.10.2011 passed by the Hon''ble Supreme Court in Civil
Appeal No. 8858 of 2011 (SLP (C) No. 28988 of 2011) is also taken on record. Written argument of Shri Rajesh Kumar Singh in Writ Petition
No. 6610 (MB) of 2011 too is taken on record.
Smt. Sadhna Sharma has filed copy of Special Leave Petition (Civil) No. 28356-58 of 2011 filed in the Supreme Court against the interim orders
dated 16.9.2011, 28.9.2011 and 29.9.2011 which is taken on record.
For the ends of justice, we have permitted to argue Shri Manoj Goyal, learned counsel appearing on behalf of the petitioner in Writ Petition No.
7825 (MB) of 2011. Argument could not be concluded. It shall continue on the next date of listing.
List on 2.11.2011 at 2.00 p.m. for further hearing. Argument shall continue on 3.11.2011 at 2.00 p.m. Registry is directed to indicate in the cause
list accordingly.
206. Thus, at the face of record, by filing Special Leave Petitions, the State Government had not acted fairly and justly. It was their duty to inform
this Bench with regard to the order dated 25.1.2011 passed by Hon''ble supreme Court. Because of nomination and change of Bench, the Court
was not aware with direction issued by Hon''ble Supreme Curt on 25.1.2011.
207. In a case in Dhananjay Sharma Vs. State of Haryana and Others, , Hon''ble Supreme Court had taken such action on the part of the litigants
seriously and held that it amount to criminal contempt. To quote relevant portion:
Anyone who makes an attempt to impede or undermine or obstruct the free flow of the unsoiled stream of justice by resorting to the filing of false
evidence, commits criminal contempt of the Court and renders himself liable to be dealt with in accordance with the Act. Filing of false affidavits or
making false statement on oath in Courts aims at striking a blow at the Rule of Law and no Court can ignore such conduct which has the tendency
to shake public confidence in the judicial institutions because the very structure of an ordered life is put at stake. It would be a great public disaster
if the fountain of justice is allowed to be poisoned by anyone resorting to filing of false affidavits or giving of false statements and fabricating false
evidence in a Court of law. The stream of justice has to be kept clear and pure and anyone soiling its purity must be dealt with sternly so that the
message percolates loud and clear that no one can be permitted to undermine the dignity of the Court and interfere with the due course of judicial
proceedings or the administration of justice.
208. The aforesaid proposition has been reiterated by Hon''ble Supreme Court in a case in Vijay Syal and Another Vs. State of Punjab and
Others, . In the case of Vijay Syal (supra), their Lordships of Hon''ble Supreme Court held that no lenient view should be taken whenever the
litigant conceals material fact from the Court as it amount to interference with the administration of justice and shake the peoples'' confidence in the
Court and rule of law. To quote relevant portion:
24. In order to sustain and maintain sanctity and solemnity of the proceedings in law Courts it is necessary that parties should not make false or
knowingly, inaccurate statements or misrepresentation and/or should not conceal material facts with a design to gain some advantage or benefit at
the hands of the Court, when a Court is considered as a place where truth and justice are the solemn pursuits. If any party attempts to pollute such
a place by adopting recourse to make misrepresentation and is concealing material facts it does so at its risk and cost. Such party must be ready to
take consequence''s that follow on account of its own making. At times lenient or liberal or generous treatment by Courts in dealing with such
matters are either mistaken or lightly taken instead of learning proper lesson. Hence there is a compelling need to take serious view in such matters
to ensure expected purity and grace in the administration of justice.
209. The position has been reiterated by Hon''ble Supreme Court in the cases in K.D. Sharma Vs. Steel Authority of India Ltd. and Others, and
by a Division Bench of this Court, of which one of us (Hon''ble Devi Prasad Singh, J) was a member, in the case in R.D. Cements Industries Pvt.
Ltd. Vs. Collector/D.M. and Others, .
Thus, the State Government, Principal Secretary, Law and his associates have concealed the material fact from this Court with regard to passing of
the order by Hon''ble Supreme Court on 25.1.2011.
210. Unfair practice and concealment of fact is also evident from the facts that during multiple litigation with regard to same issue, State
Government or the Legal Remembrancer has not invited attention of this Court or Hon''ble Supreme Court, towards earlier judgment of Hon''ble
Supreme Court (supra) as well as this Court (supra).
211. The trend developed in recent days is to conceal material facts, pleadings and arguments advanced by the parties in preferring a Special
Leave Petition in Hon''ble Supreme Court to obtain ex parte order and for the purpose, office of Legal Remembrancer is in line with the
Government. It is evident from the facts and circumstances discussed in the preceding paras. It is these factors which leave no option but to deal
with the controversy in detail and make the judgment bulky.
212. Time has come when procedure with regard to appointment of Principal Secretary, Law/Legal Remembrancer and other officers from the
subordinate judiciary should be given a second look. Appropriate training may be given to them so that their personality may not be merged with
the State Government and they may tender firm and fair advice to State Government while dealing with the matters. Prime concern should be given
to seniority, merit and integrity while filling the vacancy of office of the Legal Remembrancer. Lack of statutory knowledge and constitutional law is
affecting badly the system of governance. Every person including the Principal Secretary, Law who is chosen from subordinate judiciary must be
given some training in the Judicial Training and Research Institute, Lucknow before posting in the office of the Legal Remembrancer.
Role of Legal Remembrancer is while working in the Government, he and other officers have to tender correct advice and lawful
recommendations, to Government independently to ensure ''rule of law'' in the governance. He is supposed to work without yielding to the political
or bureaucratic influence. But situation seems to be otherwise, hence is a matter of deep concern for the administration of justice.
However, these matters fall within the domain of Hon''ble Chief Justice. The Registry shall send the copy of judgment to His Lordship for taking
appropriate decision keeping in view the facts and circumstances discussed in the preceding paras and reconsider to regulate procedure for filling
the vacancy of L.R.''s office.
(XII) OMISSION AND ARBITRARINESS
213. It is trite in law that by executive instructions or orders, judgment of the constitutional Courts based on interpretation of law, the statutory
provision or on Constitutional itself, cannot be overruled or nullified. Right form Srilekha Vidyarthi, Shailendra Kumar Ojha (supra) and Johri Mal
(supra), the orders were passed, mandamus was issued, making it obligatory on the part of the State to strengthen the consultation process with
the District Judge while making appointment on the post of District Government Counsels or Addl. District Government Counsels being statutory
post (supra) but the State Government instead of complying with the judgments of this Court and Hon''ble Supreme Court amended the L.R.
Manual by the impugned Government Order which seems to be not sustainable as it amount to overrule the judgment of constitutional Court vide
S.S. Bola and others Vs. B.D. Sardana and others, .
214. The proposition of law has been discussed in the preceding paras that the impugned Government Order suffers from vice of arbitrariness as
well as non-application of mind. Even the case relied upon by the respondents rules that in the event of arbitrary exercise of power in unjust and
unfair manner, the Court has got ample power to set it aside.
Non-consideration of judgment of this Court or amending the L.R. Manual without taking note of previous judgment having binding effect (supra)
having binding effect (supra) vis-a-vis the State action in amending the L.R. Manual by the impugned order.
215. In the case in P. Venugopal Vs. Union of India (UOI), , their Lordships of Hon''ble Supreme Court observed as under:
30................................This Court has been moved by the respondent in the writ application challenging the propriety of certain directions issued
by the Delhi High Court requiring the respondent to take approval of ACC for any adverse decision against the writ petitioner and for giving the
writ petitioner two weeks'' time against any such adverse decision. This Court has, however, declined to pass any interim order in the SLP filed by
the respondent. Therefore, the interim order or final order of the Delhi High Court would remain binding upon the parties for the time being and
they cannot be ignored or disregarded unless they are modified or leave is granted to take any step contrary thereto.
31. It may not be out of place to mention that the SLP of the respondent indicates that the term of office of five years of the writ petitioner as
Director was not really in dispute. In the Statement of Objects and Reasons of the Act introducing the impugned proviso, it is stated that the same
is being introduced with a view to comply with the direction of the High Court in the judgment and order dated 29th of March, 2007. It, however,
appears that the Division Bench of the Delhi High Court has determined the question of tenure of the writ petitioner to be five years and there are
writs in the nature of Mandamus and Prohibition issued by the Delhi High Court directing the right of the writ petitioner indicated in the respective
orders. As in Madan Mohan Pathak''s case (para 8), as quoted herein above, in the instant case also the Parliament does not seem to have been
apprised about the pendency of the proceedings before the Delhi High Court and this Court and declaration made and directions issued by the
Delhi High Court at different stages. In the impugned amendment, there is no non-obstante clause. The impugned amendment introducing the
proviso, therefore, cannot be treated to be a validating Act...................................
216. Since the case set up by the State of U.P. while defending the impugned Government Order was rejected by the judgments of this Court
including the case of Virendra Pal Singh Rana (supra) and Hon''ble Supreme Court in Srilekha Vidyarthi (supra) and Johri Mal (supra), it was not
open on the part of the State Government to amend the L.R. Manual by the impugned Government Order without justifying its action after taking in
account the aforesaid judgments of this Court and Hon''ble Supreme Court, more so when in Virendra Pal Singh Rana''s case (supra), mandamus
was issued to make necessary amendment in the L.R. Manual to provide more teeth to the District Judge in the matter of appointment of District
Government Counsel and the Special Leave Petition filed by the State of U.P. against the said judgment was dismissed by the Hon''ble Supreme
Court, This important aspect of the matter with regard to finality of controversy was neither taken into account nor brought to the notice of
Hon''ble Supreme Court or during the course of hearing in the subsequent cases by either side including the State Government.
217. The State action is highly arbitrary, unjust and improper; rather amounts to committing contempt of Court being violative of the Division
Bench''s judgments which was affirmed by their-Lordships of Hon''ble Supreme Court in the case of Shailendra Kumar Ojha (supra).
218. We have held that since the aims and objects are based on unfounded facts, the impugned amendment does not have nexus with the object
sought to be achieved, hence hit by Article 14 of the Constitution of India.
219. In view of above, the impugned Government Order not only suffers from vice of arbitrariness but also is an instance of non-application of
mind in violation of statutory provisions and also is an instance of overruling the judicial pronouncement by executive instructions which seems to be
not permissible under law.
(XIII) COST
220. By Amending Act No. 9 Section 35-A was inserted in the Code of Civil Procedure by the legislature whereby provided for payment
compensatory cost in respect of false or fictitious claim or advance. Hon''ble Supreme Court in a recent judgment had ruled that the cost must be
imposed keeping in view the letter and spirit of Section 35-A CPC.
221. However, so far as the statutory limit of Rs. 3000/- is concerned, it relates to suits filed in the Civil Court and shall not be applicable to tap
the High Court''s power to impose exemplary cost.
222. In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), , Hon''ble Supreme Court held that where, there is abuse of
process of law or litigants suffer for no fault on their part, then Court must impose costs. In a recent judgment in Rameshwari Devi and Others Vs.
Nirmala Devi and Others, , Hon''ble Supreme Court held that, with regard to imposition of costs, Courts have to take into consideration the
pragmatic realities and should be realistic with regard to plight of litigants in contesting the litigation before different Courts. Courts have to broadly
take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses and factors under which a party has been
compelled to contest a case in different Courts. In the case of Rameshwari Devi (supra), litigant had contested for about four decades, the case
filed in different Courts. Their Lordships awarded costs of rupees two lacs in addition to Rs. 75,000.00 awarded by the High Court, while
dismissing the appeal with costs, to reproduce relevant paras 54, 55 and 56 as under:
54. While imposing costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to
actually incur in contesting the litigation before different Courts. We have to also broadly take into consideration the prevalent fee structure of the
lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter-affidavit, miscellaneous charges
towards typing, photocopying, Court fee etc.
55. The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest
and defend the litigation in various Courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally
frivolous and dishonest litigation in various Courts. The appellants have also wasted judicial time of the various Courts for the last 40 years.
56. On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well reasoned impugned
order/judgment. These appeals are consequently dismissed with costs, which we quantify as Rs. 2,00,000/- (Rupees Two Lakhs only). We are
imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation.
The appellants are directed to pay the costs imposed by this Court alongwith the costs imposed by the High Court to the respondents within six
weeks from today.
223. Keeping in view the facts and circumstances of the case and the manner in which the Government has proceeded to appoint District
Government Counsels, that too after pasting a notice on the Notice Board inviting application within five hours on the same day (supra) or within
two and three days in utter disregard to unamended or amended L.R. Manual is an instance of blatant abuse of executive power causing mental
pain, agony and dishonour to the members of noble profession who have been holding high office, i.e. the post of District Government Counsel and
Addl. District Government Counsel. Hence, the writ petitions deserve to be allowed with exemplary cost.
224. Before amending para 7.13, discretion to extending the age of superannuation upto 62 years has been deleted. Similarly, the age of
superannuation has been reduced under para 8.07 of L.R. Manual from 62 to 60 years. Reduction of age of superannuation does not suffer from
any impropriety or illegality. The State has lawful authority to reduce the age of superannuation of serving employees vide State of Bihar Vs. Dr.
Yogendra Singh Col (Retired) and Others, . Hence call for no interference.
(XIV) SOME INDIVIDUAL CASES
(1) WRIT PETITIONS NO. 3922 (M/B) OF 2011
Narendra Kumar Singh v. State of U.P. and others.
225. The petitioner Narendra Kumar Singh was appointed as District Government Counsel (Revenue), Gautam Budh Nagar on 18.5.1998 and
applied for renewal of term on 14.6.1999. His services were renewed on 3.2.2003 up to 14.6.2004. Thereafter again, applied for renewal on
30.10.2006. The District Magistrate on 28.5.2007 recommended for renewal of services. Another recommendation was sent on 2.7.2009. On
14.1.2011, the District Magistrate informed the Government that there is nothing adverse against the petitioner. In the meantime, the State
Government issued a circular dated 17.4.2011 (supra). After receipt of the circular dated 17.4.2011, the District Magistrate submitted a report
dated 19.4.2011 to the State Government that there is no vacant post in district Gautam Budh Nagar of the post of District Government Counsel
(Revenue). For others, recommendation has already been sent to the Law Department on 12.7.2010, followed by reminder dated 29.12.2010. A
copy of the letter dated 19.4.2011 is filed as Annexure 9 to the writ petition.
226. It appears that inspite of recommendation and letters sent by the District Magistrate, the Government directed to follow the circular dated
17.4.2011 (supra). In consequence thereof, the notice dated 20.4.2011 (Annexure-2 to writ petition No. 3922 (M/B) of 2011) was affixed on
notice board inviting applications on the same day by 5.00 p.m. It shall be appropriate to reproduce the notice dated 20.4.2011 (Annexure-2)
which is as under:
227. Feeling aggrieved, the petitioner filed writ petition No. 3922 (M/B) of 2011, in which a Division Bench of this Court has passed an interim
order dated 28.4.2011, in which learned Chief Standing Counsel had made a statement that the State Government would not make any fresh
appointment unless renewal of the petitioner is considered. To quote relevant portion of the interim order dated 28.4.2011:
Sri D.K. Upadhyay, learned Chief Standing Counsel, at the outset, has stated that the order issued by the Principal Secretary (Law)/Legal
Remembrance requiring the District Magistrates to forward the panel of advocates for appointment on the post of Government Counsel in the
entire State of U.P., since has been issued without considering renewal of the persons occupying the office including the petitioners, therefore, the
panel already sent by the District Magistrates shall not be considered, till the renewal of the petitioners is considered and appropriate orders are
passed.
Sri D.K. Upadhyaya, further clarifies that the State Government would not make any fresh appointment unless renewal of the petitioners and all
other Government Counsel whose renewal has become due is considered and disposed of.
We, therefore, as an interim measure direct that the panel if already forwarded by the District Magistrates shall not be considered and that the case
of renewal of the petitioners as well as others whose renewal is pending consideration shall be considered first and only thereafter if need be
exercise for fresh appointment shall be done in accordance with sub-clause 5 of Clause 7.08 of Legal Remembrancer''s Manual. The petitioners
shall be allowed to discharge their functions and they shall also be paid their remuneration.
Two weeks'' time is granted to the learned counsel for the respondents to file counter-affidavit.
List thereafter.
Thus, by the interim order dated 28.4.2011, the Division Bench had issued a general mandamus to comply with Clause 7.08 of L.R. Manual with
regard to renewal of District Government Counsel whose term expired and application for renewal is pending.
228. It appears that inspite of aforesaid interim order, the Government hand not taken care to comply with the order; rather in a contemptuous
manner on the same day passed the impugned order dated 20.4.2011 rejecting the renewal of the petitioner. Hence, he filed writ petition No.
4179 (M/B) of 2011.
229. In writ petition No. 4179 (M/B) of 2011, the Division Bench passed an interim order dated 3.5.2011 restraining joining of new incumbents
and called an explanation from the Principal Secretary, Law Shri K.K. Sharma. Later on, Hon''ble Senior Judge nominated the present Bench to
decide the bunch of writ petitions with regard to District Government Counsels. During the course of trial, we have called the District Magistrate to
explain as to how while notifying the vacancy on notice board on 20.4.2011, short time of only five hours was given to lawyers to apply for District
Government Counsel (Revenue). In response to the query made by the Court, the then officiating District Magistrate Ms. Shital Verma stated that
she had notified the vacancies inviting applications by 5.00 p.m. on 20.4.2011 on the basis of instruction of the District Magistrate. The District
Magistrate informed her that a meeting was scheduled at Lucknow with Chief Minister of the State. In consequence thereof, the District Magistrate
had instructed her to affixed notice on Notice Board on 20.4.2011 indicating therein to submit application by 5.00 p.m. on that day. Mr. Deepak
Agrawal, District Magistrate who issued instruction is out of country. Hence, his version could not come on record. However, the statement given
by Ms. Shital Verma seems to be correct keeping in view the fact that the then District Magistrate Shri Deepak Agarwal had sent the panel of
advocates to office of the Principal Secretary, Law on the very next day, i.e. 21.4.2011. Relevant portion from the order sheet dated 28.9.2011,
passed in Misc. Bench No. 3922 of 2011 is reproduced as under:
Ms. Sheetal Verma, who was officiating as District Magistrate, Gautambudh Nagar on 20th April, 2011 has been shown the notice of the same
date, a copy of which has been filed as Annexure 2 to the Writ Petition No. 3922 (M/B) of 2011.
Specific query has been made by the Court as to who told her to display the notice inviting the application from the lawyers on the same date. In
response to query made by the Court, she made a statement that she was informed by the District Magistrate on telephone that on a meeting was
scheduled at Lucknow with the Chief Minister of the State, in consequence thereof, the District Magistrate had instructed her to place the notice on
the notice board on 20th April, 2011 inviting application from the lawyers for preparation of panel on the same day by 5.00 p.m. In pursuance to
the telephonic instruction given by the District Magistrate Sri Deepak Agarwal, she affixed the notice on the notice board on 20th April, 2011
inviting applications from the lawyers for preparation of panel. She states that she had only complied with the order passed by the then District
Magistrate Sri Deepak Agarwal and affixed the notice on the notice board in the office. On the next day i.e. 21st April, 2011, Sri Deepak
Agarwal, District Magistrate came back and resume the duty and he sent the panel list of the Advocates to the office of Principal Secretary (Law)
containing the names of Advocates.
She further states that she is not aware to any proceedings taken with regard to preparation of the panel list of the Advocates except the affixation
of notice over the notice board. She categorically states that she had only complied with the order passed by the District Magistrate and her role
was only to affix the notice over the notice board informing the lawyers inviting the application for the purpose.
230. The factum of affixation on the notice board on 20.4.2011 inviting applications by 5.00 p.m. on the same day and consequential step taken
by the District Magistrate in sending the panel of advocates on 21.4.2011 has not been disputed.
From the above, it borne out that either on the direction of the Chief Minister or keeping in view the meeting schedule with the Chief Minister for
compliance of the circular dated 17.4.2011, the authorities acted in haste and in utter disregard to provisions contained in L.R. Manual, they have
sent the names to the State Government which was processed by the office of the Legal Remembrancer in finalising the names of the districts
including district Gautam Budh Nagar. At the face of record, the decision taken suffers from malice in law and is an incident of arbitrary exercise of
power.
231. Apart from above, even if by the impugned Government Order dated 13.8.2011, the L.R. Manual has been amended and the provision with
regard to opinion of the District Judge has been deleted shall not make any difference so far as District Government Counsel, (Revenue) is
concerned. The appointment of District Government Counsel (Revenue) is not only done under the provisions contained in L.R. Manual but in
pursuance to the provisions contained in Section 127-B of the U.P.Z.A.L.R. Act, read with Section 114 of the U.P. L.R. Rules which
categorically provides that the appointment of the counsel for the Gram Sabha shall be made by the Government after considering the
recommendation of the Collector and District Judge. District Government Counsel, Revenue not only represents the State Government but in
appropriate case, he or she represents the Gaon Sabha in revenue matters.
232. Law is very well-settled that the Government Order cannot override the statutory provisions. Thus, the office of the Principal Secretary, Law
tried to overcome the interim order passed by the Division Bench of this Court dated 28.4.2011 in hasty manner without adhering to statutory
provisions as well as unamended provisions of the L.R. Manual. Chapter XXI of L.R. Manual (supra) has got binding effect and still in operation.
233. To sum up, in any case, grant of only five hours time inviting application cannot be justified. The entire procedure adopted by the respondents
to fill up the vacancies in question is highly arbitrary and is an incident of gross abuse of power by the State authorities causing mental pain, agony,
financial loss and humiliation to the petitioner.
(2) Writ Petition No. 4084 (MB) of 2011 Km. Snehlata Tiwari, Advocate v. State of U.P.
234. Petitioner an advocate had applied for appointment of District Government Counsel (Criminal) in District Pilibhit. Her name was sent by the
District Judge with due recommendation on 6.10.2006 alongwith others. It is stated that the District Magistrate also given an opinion in favour of
the petitioner. In the meantime, LR Manual was amended by impugned order dated 13.8.2008 and one Gufran Ali was appointed as DGC
(Criminal) by an order dated 10.9.2008 against which the petitioner filed writ petition No. 8849 (MB) of 2008 in which interim order was passed.
Hence post was filled up from the earlier panel. Thereafter, the State Government issued a Circular dated 17.4.2011 directing the District
Magistrates to submit lawyers'' panel for appointment of District Government Counsel. In response thereof, a notice was affixed by officiating
District Magistrate, Pilibhit on the notice board on 19.4.2011 (Annexure 2) inviting applications by 20.4.2011 by 6.00 p.m. meaning thereby
applications were invited within 24 hours by notifying the vacancy on the notice board of the Collectorate. Thereafter, the District Magistrate had
sent the panel to the office of Legal Remembrancer, Lucknow. No response was filed denying the allegations. The procedure adopted by the
District Magistrate, Pilibhit seems to be suffered from substantial illegality and arbitrariness under the unamended as well as amended Legal
Remembrancer Manual (L.R. Manual). Decision seems to be hasty and appears to be done keeping in view the fact that the meeting was
convened by the Chief Minister of the State at Lucknow and District Magistrates were directed to complete the task at an early date as appears
from the statement given by Ms. Sheetal Verma, the officiating District Magistrate of Gautam Budh Nagar as recorded in the order sheet dated
28.9.2011. Otherwise also, no reasonable opportunity was given to the advocates to submit applications, which may include to adjoining districts
and no decision seems to have been taken with regard to renewal of serving District Government Counsel before proceeding ahead with the fresh
recruitment. Hence, impugned orders seem to be violative of L.R. Manual.
Thus, the procedure adopted for selection and appointment on the post of District Government Counsel is abuse of power and has been exercised
arbitrarily in utter disregard to L.R. Manual.
(3) Writ Petition No. 3860 (MB) of 2011 Nand Lal Yadav v. State of U.P. and others
235. Renewal of petitioner Nand Lal, District Government Counsel (Revenue) Pratapgarh has been alleged to refuse to give way for fresh
recruitment. The petitioner has been working as DGC (Revenue) since 2005. Recommendation sent to the State Government for renewal with
concurrence of District Judge and District Magistrate has not been considered and kept pending. After Circular dated 13.8.2008, by the impugned
order (Annexure No. 1) renewal was refused by the State Government. The order does not reveal reason for rejection of renewal. By notice
dated 18.4.2011, the District Magistrate, Pratapgarh invited applications of the lawyers of District Pratapgarh by 5 p.m. on 19.4.2011, which has
been assailed by the petitioner. It appears that after inviting application by 5.00 p.m. on 19.4.2011 (within 24 hours), District Magistrate had sent
the panel of names to the State Government. Action of District Magistrate seems to be hasty and arbitrary exercise of power that too keeping in
view the meeting convened by the Chief Minister of State (supra). The procedure contained in the L.R. Manual seems to have not been followed.
Further the vacancy could not be filled up on account of interim order passed by the High Court on 6.4.2011 as admitted in para 3 of the counter-
affidavit filed by the Legal Remembrancer, Lucknow.
(4) Writ Petition No. 4817 (MB) of 2011 Atul Gupta v. State of U.P. and others.
236. Petitioner Atul Gupta working as District Government Counsel (Civil) assailed the impugned order dated 17.4.2008 by which the petitioner''s
renewal has been refused by the District Magistrate in pursuance to the Government Order dated 11.4.2008. The order was stayed by the
Division Bench in Writ Petition No. 3866 (MB) of 2008 by the interim order dated 8.5.2008. Later on, after amending the L.R. Manual, District
Magistrate tended to proceed afresh in pursuance to Circular dated 7.12.2010 by which the Government had called a report with regard to
renewal and later on took a decision afresh by impugned order (Annexure 26) in pursuance to report of District Magistrate, in terms of amended
Para 7.08 of the L.R. Manual declined to renew the services. Hence the writ petition on the ground that no opinion was obtained from the District
Judge though earlier under the amended provision he submitted a favourable report in favour of petitioner.
(5) Writ Petition No. 5098 (MB) of 2011 Puttilal v. State of U.P. and others.
237. The Petitioner has challenged the impugned order dated 28.4.2011 by which fresh recruitment on the post of DGC (Civil) has been done for
which applications were invited by the advertisement dated 11.3.2011 contained in Annexure 1 to the writ petition. The advertisement published
by the District Magistrate, Barabanki reveals that applications were invited by 13.3.2011.
238. According to the learned counsel for the petitioner, 11th March, 2011 was Friday, 12th March, 2011 was Saturday and 13th March, 2011
was Sunday. Only two days including holidays were given for submitting application. Submission is that it is an instance of abuse and arbitrary
exercise of power.
(XV) RULE OF LAW
239. It is vehemently argued by learned Senior Counsel for the State that the Court may not interfere with the choice of the State Government and
it is the discretion of the State Government to engage a counsel whosoever it likes. The argument advanced by the learned counsel for the State
does not seem to be sustainable for the reason that every action of the State Government must not only be just, fair and rational (supra) but also it
must conform to some statutory provisions, rules, regulations or Government Orders. Meaning thereby, the Government cannot travel beyond the
purview of L.R. Manual. In a democratic polity, the Government is accountable to every penny spent by it and that too should be done only to
secure public interest. Rule of law has got two facet, firstly, the action must be just, fair, reasonable and rational and should be exercised in public
interest and secondly, there must be some statutory provision or source which confers power on the State Government to discharge its obligation.
240. In the case in S.G. Jaisinghani Vs. Union of India (UOI) and Others, , Hon''ble Supreme Court held that absence of arbitrary power, is first
essential of ''rule of law'' upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred
upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be
made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he
is. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is the antithesis of a decision taken in
accordance with the rule of law.
241. In the case in Zenit Mataplast P. Ltd. Vs. State of Maharashtra and Others, , Hon''ble Supreme Court held that in case an applicant
approaches the Court, complaint against statutory authority alleging arbitrariness, bias or favouritism, the Court being the custodian of law must
examine the allegation as to whether there is any substance in those allegations. Hon''ble Supreme Court reiterated the principle laid down in the
case of S.G. Jaisinghani (supra) and ruled that State action must be bona fide and not be arbitrary or suffering from favouritism.
In the case in Carew and Company Ltd. Vs. Union of India (UOI), , Hon''ble Supreme Court interpreted the ''Rule of law'' as under:
205. Rule of Law postulates that the decisions should be made by the application of known principles and rules and in general such decisions
should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule, it is not predictable
and such decision is the antithesis of a decision taken in accordance with the rule of law.
242. In the case in Noida Entrepreneurs Association Vs. NOIDA and Others, , Hon''ble Supreme Court while emphasising for maintenance of
rule of law in the country observed that public bodies or the State instrumentalities are trustees of the public property and their action must be in
conformity with the Statutory provisions and also should be just and fair, to quote relevant portion:
38. The State or the public authority which holds the property for the public or which has been assigned the duty of grant of largesse etc., acts as a
trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by virtue of which he acts on behalf of the State or public
body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for
public good and promoting the public interest. Every holder of a public office is a trustee.
39. State actions are required to be non-arbitrary and justified on the touchstone of Article 14 of the Constitution. Action of the State or its
instrumentality must be in conformity with some principle which meets the test of reason and relevance. Functioning of a ""democratic form of
Government demands equality and absence of arbitrariness and discrimination"". The rule of law prohibits arbitrary action and commands the
authority concerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination,
nor even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any principle or without any rule, it is
unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law.
40. The Public Trust Doctrine is a part of the law of the land. The doctrine has grown from Article 21 of the Constitution. In essence, the
action/order of the State or State instrumentality would stand vitiated if it lacks bona fides, as it would only be a case of colourable exercise of
power. The Rule of Law is the foundation of a democratic society. (Vide: Erusian Equipment and Chemicals Ltd. Vs. State of West Bengal and
Another, ; Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, ; Haji T.M. Hassan Rawther Vs. Kerala Financial
Corporation, ; Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, ; and M.I. Builders Pvt. Ltd. Vs. Radhey Shyam Sahu and
Others, .
242-A. A country should not be ruled by men but should be ruled by law. It means, the State action must conform to statutory provisions. The
power must flow from Rules, Regulations and statutory provisions. In absence of powers conferred by the statutory provisions, State or its
instrumentalities cannot divest a person from his or her property or abridge or dilute the right protected by Articles 14 and 21 of the Constitution of
India safeguarding life, liberty livelihood or quality of life.
243. In view of above, though the Government may choose a counsel of its choice but it must conform to procedure prescribed by it and it must
be known to public at all.
244. It is settled proposition of law that right to consider for an appointment is a fundamental right being source of livelihood protected by Article
21 of the Constitution of India and not right to seek appointment, Accordingly, the Government must act in accordance with the L.R. Manual or
any other law for the time being in force and reasonable period may be provided while inviting applications through advertisement for filling the
vacancy of District Government Counsel and Addl. District Government Counsel. Reasonable period should not be less than two weeks. Every
person who applies for the post shall be entitled to be considered by the District Magistrate with due consultation with the District Judge and the
District Magistrate must exercise its discretion while preparing the panel on merit, reputation, integrity and professional competency of the
advocate concerned. No person should be appointed against whom a criminal case is pending for trial or investigation and the procedure provided
in the L.R. Manual as amended from time to time must be adhered to.
245. Because of this broader principle of law, Hon''ble Supreme Court repeatedly held that the Government must discharge its obligation in
accordance with the statute, rules, regulations framed for the purpose and not otherwise vide Nazir Ahmad vs. EmperorAIR 1936 253 (Privy
Council) ; Deep Chand Vs. The State of Rajasthan, , Patna Improvement Trust Vs. Smt. Lakshmi Devi and Others, ; State of Uttar Pradesh Vs.
Singhara Singh and Others, ; The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, Chandra Kishore Jha Vs.
Mahavir Prasad and Others, ; Delhi Administration Vs. Gurdip Singh Uban and Others, ; Dhananjaya Reddy etc. Vs. State of Karnataka, ,
Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala and Others, ; Prabha Shankar Dubey Vs. State of Madhya Pradesh, and Ram
Phal Kundu Vs. Kamal Sharma, , Taylor v. Taylor, (1876) 1 Ch. D. 426 ; Nika Ram Vs. State of Himachal Pradesh, ; Ramchandra Keshav
Adke (Dead) by Lrs. and Others Vs. Govind Joti Chavare and Others, ; Chettian Veetil Ammad and Another Vs. Taluk Land Board and Others,
; State of Bihar and Another Vs. J.A.C. Saldanha and Others, , A.K. Roy and Another Vs. State of Punjab and Others, ; State of Mizoram Vs.
Biakchhawna, .
246. It is also settled law that in absence of statutory rules, the Government may fill up the vacuum by executive instructions. The executive
instruction is available in the form of L.R. Manual and the procedure prescribed therein shall be binding on the Government while exercising its
discretion.
(XVI) FINDING
247. In view of above, we summarise our finding as under:
(1) As discussed and held, the Government exceeded jurisdiction by amending the L.R. Manual contrary to the mandate of Shailendra Kumar
Ojha''s case (supra) against which the Special Leave Petition has been disposed of by Hon''ble Supreme Court by speaking order (supra). Once
an issue has been decided finally by this Court with regard to consultation with the District Judge, affirmed by Hon''ble Supreme Court, then it was
not open for the State to issue the impugned Government Order contrary to the mandamus issued by this Court in Virendra Pal Singh Rana''s case
(supra), followed by Shailenra Kumar Ojha''s case (supra). It is unfortunate on the part of the State Government and the office of the Legal
Remembrancer that they have not apprised Hon''ble Supreme Court during hearing in subsequent cases with regard to finality of issue by the
judgment of this Court affirmed by Hon''ble Supreme Court.
A plain reading of the order passed by Hon''ble Supreme Court while disposing of the Special Leave to Appeal (Civil) No. (s). 14728 of 2004
State of U.P. and others v. Shailendra Kumar Ojha and others, reveals that their Lordships of Hon''ble Supreme Court had agreed that the
judgment delivered by the High Court was in conformity with Johri Mal''s case (supra) and it shall be obligatory on the part of the State
Government and all its authorities concerned to act accordingly. Thus, the mandamus issued by Hon''ble Supreme Court has also flagrantly been
violated by the State of U.P. by concealing the same in subsequent proceedings. Virtually, the State of U.P. has committed contempt of Hon''ble
Supreme Court by not complying with the direction in the case of Shailendra Kumar Ojha (supra), in which the judgment of this Court shall be
deemed to merge under the doctrine of merger. Till judgment in the case of Virendra Pal Singh and Shailendra Kumar Ojha (supra) survives, it is
not lawful for the Government to pass the impugned order contrary to the judgment.
(2) So far as the choice of the State Government is concerned to appoint a counsel, under the amended or unamended L.R. Manual, the final
authority vests in the State Government. The Government can reject any recommendation sent by the District Judge and District Magistrate after
assigning reason. Otherwise also, under Section 24(8) of the CrPC, the State Government possess power to appoint special counsel in any case at
any stage right from the Subordinate Court to High Court and Supreme Court. Special counsels are different class in themselves. The Parliament
keeping in view the report of the Law Commission has created separate category of lawyers termed as special counsel and with regard to such
appointment, it is not necessary for the State Government to obtain any concurrence from any one. In a recent judgment in State of U.P. and
Others Vs. Hirendra Pal Singh etc., , their Lordships of Hon''ble Supreme Court have reiterated the necessity to obtain the opinion from the
District Judge (para 20). The case has been decided by a Bench of three Judges of Hon''ble Supreme Court. Their Lordships further opined to
decide the present controversy after taking into account the earlier judgments starting from Srilekha Vidyarthi (supra) which has been done while
adjudicating the present controversy.
(3) The statutory provision and the related law as it stood was considered by a Division Bench of this Court in the case of Virendra Pal Singh Rana
(supra) and a mandamus was issued to give more strength to the District Judge in consultation process with regard to appointment. The Special
Leave Petition filed in the Supreme Court was dismissed, hence the judgment attained finality. Instead of complying with the mandamus, issued by
this Court, by the impugned Government Order, the provision with regard to consultation with the District Judge has been deleted. Thus, the
impugned Government Order amounts to overrule the judgment of this Court in the case of Virendra Pal Singh Rana as well as Johri Mal (supra),
hence suffers from vice of arbitrariness. The Government lacks jurisdiction to overrule the judgment of constitutional Court by executive order
(supra).
(4) Right from Srilekha Vidyarthi (supra), Johri Mal and Hirendra Pal Singh (supra), it has been consistent view of Hon''ble Supreme Court that
the consultation with District Judge in the matter of appointment of District Government Counsel is not only necessary but ""must"". The impugned
Government Order is violative of the judgments of Hon''ble Supreme Court and this Court. Hence, not sustainable.
(5) In view of the provisions contained in Para 7.03 of L.R. Manual which is still in operation, even if the impugned amendment read with the
judgment of Hon''ble Supreme Court in the case in Harpal Singh Chauhan and others Vs. State of U.P., , Kumari Shrilekha Vidyarthi and Others
Vs. State of U.P. and Others, and a Division Bench''s judgment of this Court in Shailendra Kumar Ojha and Others Vs. State of U.P. and Others,
, it is not lawful for the Government to make fresh appointment without considering the serving incumbents for renewal on the post of District
Government Counsel or Addl. District Government Counsel. The Government is the final authority to make a fresh appointment or renew the
services of serving incumbent but fresh appointment can be done only after considering and rejecting the case of serving Government counsels for
renewal.
(6) After insertion of Section 25-A by Act No. 25/05, given effect from 23.6.2006, the Government was incompetent to pass the impugned order
which seems to be repugnant to the letter and spirit of Section 25-A by which the Parliament intends to create an independent Directorate of
Prosecution, headed by the Director of Prosecution appointed with the concurrence of the Chief Justice of the High Court.
(7) Enforcement of Section 25-A may not be possible alongwith impugned Government Order as both cannot stand together. Under Article 254,
the State cannot legislate law or issue an order which is inconsistent to central law legislated by Parliament. Section 25-A as well as the impugned
Government Order cannot stand together while establishing the prosecution branch in the State of U.P. keeping in view the letter and spirit of
Section 25-A of the Cr.P.C. Even special counsel appointed under Section 24(8) has been brought under the control of Directorate of
Prosecution. Executive lacks jurisdiction to override the judgment of High Court and Hon''ble Supreme Court by executive instruction. Hence, the
impugned Government Order suffers from vice of arbitrariness.
(8) Role of Public Prosecutor as settled by Hon''ble Supreme Court by catena of judgments is like an independent umpire. Hence, the Government
does not possess exclusive right to fill up the vacancies and that too, without consultation with the District Judge. The committed Prosecutor as well
as the committed judiciary both are anti-thesis to rule of law and subservient to democratic process (supra).
(9) The Public Prosecutor cannot be compared with the office of Advocate General, Solicitor General or Attorney General or other constitutional
posts. The Government has ample power to appoint special counsel under Section 24(8) of Cr.P.C. in any case at any time but when the question
cropped up with regard to appointment of District Government Counsel who works as officer of the Court, then being a statutory post, the opinion
of the District Judge is must.
(10) By the impugned Government Order, the appointment of District Government Counsel (Revenue) cannot be regulated where under the
U.P.Z.A.L.R. Act and the rules framed thereunder, it is statutory compulsion to obtain the opinion of the District Judge while making appointment
on revenue side (supra).
(11) The post of District Government Counsel (Criminal) is a statutory post under Section 24, read with Section 25-A of the Cr.P.C. Hence, it
shall be obligatory on the part of the Government to discharge its obligation in a just and fair manner with due consultation of the District Judge in
view of settled proposition of law.
(12) The Division Bench''s judgment of this Court and Hon''ble Supreme Court are binding and the Government could not have issued the
impugned Government Order without taking into account the different pronouncements of the Supreme Court. Reliance on only part of the
judgment without considering the entire judgment alongwith other related judgments does not permit the Government to exercise its power
arbitrarily. In view of the undertaking/submission given before Hon''ble Supreme Court in the case of Johri Mal (supra), the Government could not
have issued the impugned Government Order without approaching the Supreme Court for modification of the observation made in the judgment.
The statements given before the Court are binding for the succeeding Government. Inviting application from the lawyers within five hours of notice
or within two or three days (supra) is violative of existing amended provisions of L.R. Manual and are example of blatant abuse of power by the
State Government with active support of the office of the Principal Secretary (Law)/Legal Remembrancer of the State of U.P. Legal
Remembrancer has failed to tender correct advice and with firmness.
(13) By order dated 13.9.2011, we have directed the Principal Secretary, Law to file an affidavit with regard to appointment of advocates having
criminal antecedents in districts Jhansi, Mathura and Mau but no affidavit was filed by the Principal Secretary, Law. Hence, an inference may be
drawn that the persons having criminal antecedent have been appointed in the State of U.P. for political compulsion or for other extraneous
reasons but without proper verification from the District Magistrate concerned.
(14) No person having criminal antecedent or against whom a First Information Report has been lodged involving moral turpitude and pending trial
on account of lodging of First Information Report can be appointed as District Government Counsel or Addl. District Government Counsel on
criminal or civil side. They should be removed immediately after serving show-cause notice and inviting the response.
(15) The District Government Counsels could not be removed even under existing amended L.R. Manual without considering their case for
renewal.
(16) Even if the impugned amendment is given effect, on account of the provisions contained in Chapter XXI of the L.R. Manual, it shall be
obligatory on the part of the State Government to obtain opinion of the District Judge who maintain the records of annual entry with regard to
District Government Counsel and Addl. District Government Counsel working in the district.
(17) Since the Government has removed some of the petitioners (supra) arbitrarily inviting applications in five hours or in a day, two and it is an
incident of abuse of power causing mental pain and agony and indulging into litigation, hence the respective Government counsels are entitled for
exemplary cost.
(18) Reduction of age of superannuation does not suffer from any impropriety and illegality, hence call for no interference.
(19) Since under L.R. Manual, applications are invited from the advocates practising in adjoining districts under para 7.03(2) of L.R. Manual, no
appointment can be made by pasting notice on Notice Board. In any case, every vacancy should be filled up inviting application by publication in
newspaper providing reasonable period, say minimum fifteen days to submit application.
(20) Role of Legal Remembrancer and associate judicial officer while working in the Government is to tender independent, correct and lawful
advice without being influenced by the politicians and bureaucrats, to maintain rule of law. Within the Government, they are separate class having
only advisory role. But it is a matter of deep concern that the office of Legal Remembrancer is working like a subordinate Government department,
seems to lose its flavour and identity, hence requires immediate attention by Hon''ble Chief Justice.
248. Bruteness or animal instinct in a man in case not controlled by required meditation practice, culture and love for rule of law with emotional
attachment to the country and feeling of nationalism, a person always deviates from right path. Man may be little lower than the angels, he has not
yet shaken off the brute and the brute within is apt to break loose on occasions.
249. To curb and control that brute and to prevent the degeneration of society into a slate of tooth and claw, we need the rule of law. We also
need the rule of law for punishing all deviations and lapses from the code of conduct and standards of behaviour which the community, speaking
through its representatives, has prescribed as the law of the land. Being human, disputes are bound to arise amongst us. For the settlement of those
disputes, we need guidelines in the form of laws, forums to redress the wrongs in the form of Courts, tribunals and advisers who could guide us in
the affairs of law, who could represent us in the Court of law and in whom we could repose our confidence. These (District Government Counsels)
advisers must be of impeccable character, meritorious scholars with independent stature, ability and knowledge.
250. The gradual increase of public lynching, demonstrations on road, processions and agitations against the corruption, are because of inaction on
the part of Governments to redress public grievance within own hierarchy of system. The plight of common people, in the present ''governance''
may be expressed from a couplet of Ghalib, to quote:
My grievous tale to you is but a story;
The stars weep tears of blood to hear its told.
[English translation]
251. In view of above, these bunch of writ petitions deserves to be allowed with exemplary cost in the manner discussed hereinabove.
(XVII) ORDER
252. (1) In view of above, the writ petitions are allowed and a writ in the nature of certiorari is issued quashing the impugned Government Order
dated 13.8.2008 contained in Annexure 1 to writ petition No. 7851 (M/B) of 2008 to the extent of the amendment made in the L.R. Manual
deleting the consultation process with the District Judge with consequential benefits.
(2) A further writ, order or direction in the nature of certiorari is issued quashing the orders dated 17.4.2011 and 20.4.2011, contained as
Annexures 1 and 2 respectively to writ petition No. 3922 (M/B) of 2011, order dated 28.4.2011, followed by order dated 30.4.2011 contained
as Annexures 26 and 27 respectively in writ petition No. 4817 (M/B) of 2011, order dated 17.4.2011 and order dated 19.4.2011, contained as
Annexures 1 and 2 respectively in writ petition No. 4084 (M/B) of 2011 and the impugned order dated 18.4.2011, passed in Writ Petition No.
3860 (M/B) of 2011 contained in Annexure No. 1 with costs.
Cost is quantified to Rs. 2 lacs for each of the petitioners of the aforesaid four writ petitions, out of which, the petitioners shall be entitled to
withdraw an amount of Rs. 1,50,000/- and the rest Rs. 50,000/- shall be transmitted to the Mediation Centre of this Court at Lucknow. Let the
cost be deposited within two months from today. In the event of default to deposit the cost, it shall be recovered as arrears of land revenue by the
District Magistrate concerned and thereafter be remitted to this Court. Registry to take follow-up action.
(3) A further writ, order or direction in the nature of mandamus is issued directing the State Government to remove all those District Government
Counsels or Addl. District Government Counsels who have been involved in criminal case or against whom an investigation of criminal case is
pending after serving a show-cause notice within a period of two months.
(4) A further writ, order or direction in the nature of mandamus is issued commanding the State of U.P. to re-advertise the posts in question
keeping in view the observation made in the body of judgment and take a fresh decision strictly in accordance with L.R. Manual expeditiously, say
within a period of three months. The petitioners, who were working at the time of filing of the writ petitions shall be permitted to continue to
discharge their obligation till their case is reconsidered in accordance with the provisions contained in L.R. Manual after fresh advertisement of the
vacancies in the newspaper.
Let a copy of the judgment be sent to Hon''ble the Chief Justice of this Court, the Chief Secretary of the State Government and the Principal
Secretary, Law forthwith by the registry.
The writ petitions are allowed accordingly with costs.
(Hon''ble Devi Prasad Singh, J.)
January 6, 2012
We have pronounced separate judgments and allowed the writ petitions so far as reliefs claimed by the petitioners are concerned. Keeping in view
the finding recorded and the order passed, there is difference of opinion with regard to disbursement of cost. Hence, the respondents shall deposit
the cost but it shall not be remitted unless the question framed under Section B Rule 3 of Chapter VIII of the Rules of the Court is decided by third
Judge or the Bench nominated by Hon''ble Chief Justice for the purpose. We frame the following question:
Whether the cost deposited by the respondents should be paid to the petitioners and a portion of which be remitted to the Mediation Centre,
Lucknow as decided by one of us (Hon''ble Devi Prasad Singh, J.) or it may be remitted to the office of the District Government Counsel as
provided by one of us (Hon''ble Dr. Satish Chandra, J.) while writing separate judgment.
Let the matter be placed before Hon''ble Chief Justice for appropriate order.
Since there is no disagreement so far as merit of the case is concerned, the State and its authorities shall implement the judgment forthwith in terms
of the finding recorded and order passed by one of us (Hon''ble Devi Prasad Singh, J), agreed by other member of the Bench (Hon''ble Dr. Satish
Chandra, J).
Registry shall send copy of both the separate judgments to Hon''ble Chief Justice, Chief Secretary and the Principal Secretary, Law forthwith.
(Justice Dr. Satish Chandra, J.)
(Justice Devi Prasad Singh)
6th January, 2012)
Hon''ble Dr. Satish Chandra, J.
253. I have carefully gone through the judgment but respectfully do not agree with the observations made in Part XI [paras 185-213] of the
judgment pertaining to the office of L.R. and Principal Secretary as well as the Part XVII [para 253(2)], pertaining to the cost - order.
PART XI (PARAS 185-213) [OFFICE OF L.R. and PRINCIPAL SECRETARY]
254. Before passing the stricture and condemning the office of L.R. and Principal Secretary, no proper opportunity was given to explain or defend
themselves as per the doctrine of AUDI ALTERM PARTEM.
Needless to mention that there is not a single lawless office in the whole of the country whose record comes anywhere near the perfect record of
that organized unit as observed by Hon''ble the Apex Court in the case of The State of Uttar Pradesh Vs. Mohammad Naim, .
255. Further, it may be mentioned that Hon''ble Supreme Court in the case of State of Madhya Pradesh Vs. Narmada Bachao Andolan and
Another, observed that before passing adverse entries/remarks, the cardinal principle of the administration of justice requires for proper freedom
and independence of Judges and such independence must be maintained and Judges must be allowed to perform their functions freely and fairly
and without undue interference by anybody, even by Hon''ble Supreme Court. However, it is also equally important that in expressing their
opinions, the Judge''s must be guided by consideration of justice, fair play and restraint. It should not be frequent that sweeping generalizations
defeat the very purpose for which they are made. Thus, it is relevant to consider:
(a) Whether the party whose conduct is in question is before the Court or has an opportunity of explaining or defending himself;
(b) Whether there is evidence on record bearing on that conduct justifying the remarks; and
(c) Whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct.
256. The above view has been persistently approved and followed by the Hon''ble Apex Court as is evident from the judgments in Jage Ram,
Inspector of Police and Another Vs. Hans Raj Midha, ; R.K. Lakshmanan Vs. A.K. Srinivasan and Another, ; Niranjan Patnaik Vs. Sashibhusan
Kar and Another, ; Major General I.P.S. Dewan Vs. Union of India (UOI) and Others, ; Dr. Dilip Kumar Deka and Another Vs. State of Assam
and Another, ; and State of Maharashtra Vs. Public Concern for Governance Trust and Others, .
Thus, the law on the issue emerges to the effect that the Court may not be justified in making adverse remarks/passing structures against a
person/office unless it is necessary for the disposal of the case to animadvert to those aspects in regard to the remarks that have been made. The
adverse remarks should not be made lightly as it may seriously affect the character, competence and integrity of an individual/office in purported
desire to render justice to the other party.
257. In the case of V.K. Jain Vs. High Court of Delhi through Registrar General and Others, , the Hon''ble Apex Court observed that Majesty of
Court would be enhanced by practicing discipline and self-restraint in discharging of all judicial functions. All actions of a judge must be judicious in
character. The roll of superior Courts is like a friend, philosopher and guide of the judiciary subordinate to it. The judicial officers have to be
treated with parental care and affection. The approach of the superior Courts ought to be correctional and not to be intended to harm or ruining the
judicial career of the officers.
258. In the instant case, the appointment of Legal Remembrancer is a big task as senior officer of HJS cadre of the rank, who has been promoted
as District Judge, can be appointed as Principal Secretary, Law/Legal Remembrancer with the approval of Hon''ble the Chief Minister as well as
Hon''ble the Chief Justice.
259. In the case of Braj Kishore Thakur Vs. Union of India, ; A.M. Mathur Vs. Pramod Kumar Gupta, ; and S.K. Viswambaran Vs. E.
Koyakunju and Others, , Hon''ble Supreme Court advised that superior Courts should not use strong, derogatory, disparaging and carping
language while criticizing the judicial officers. The superior Courts must always keep in mind that, like all other human beings, the judicial officers
are also not infallible and any remarks passed against them may result in incalculable harm resulting in grave injustice. It must be remembered that
error is human and no one is infallible. A judge who has not committed an error is yet to be born. Judicial decorum has to be maintained. The
criticism must be in a language of utmost restraint always keeping in view that the person making the comment is also fallible.
260. The above ratio laid down by Hon''ble the Supreme Court is binding as per Latin ''Stare Decisis''. According to Lord Coke, the principles of
''stare decisis'' means those things which have been so often adjudged ought to rest in peace. Doctrine of ''stare decisis'' is expressed in the maxim
''Stare decisis et non quieta movere'' means let the decision stand without disturbing it or it is better to adhere to decision than to disturb questions
put at rest.
261. Under this doctrine, Courts will abide by decided cases and refrain from disturbing general principles established by judicial determination.
The Hon''ble Supreme Court in the cases in The Regional Manager and Another Vs. Pawan Kumar Dubey, ; The Mumbai Kamgar Sabha,
Bombay Vs. Abdulbhai Faizullabhai and Others, ; Woman Rao v. Union of India, AIR 1981 SC 271; and Makhanlal Waza and Others Vs. State
of Jammu and Kashmir and Others, observed that ''Stare decisis'' represents an element of continuity in law and is rooted in the psychologic need
to satisfy reasonable and legitimate expectations. In Burnet v. Koronado Oil and Gas Co., (1932) 285 US 393 406ENDLAWFINDER , Justice
Brandeis rightly stated, to quote:
Stare decisis is usually the wise policy because in most matters it is important that the applicable rule of law be settled than it be settled right.
262. It appears that in the present case, no opportunity was given to Legal Remembrancer before passing the adverse entries defending himself.
Moreover, it appears that in the facts and circumstances, it is not necessary for the decision of the cases in hand, as an integral part thereof, to
animadvert on that conduct.
Therefore, I do not agree with the Part XI (paras 185-213) of the judgment.
PART XVII [PARA 253 (2)] [COST-ORDER]
263. Regarding the cost/award, I agree that an exemplary cost of rupees two lacs in each case, is to be awarded but the same or part of it cannot
be given to the petitioners as it will amount to unjust enrichment. In future, the petitioners will be encouraged for litigation, as some of them are
getting the cost amount more than their earning in a month. This view is also fortified by the Hon''ble Apex Court in the case of Sanjeev Kumar Jain
Vs. Raghubir Saran Charitable Trust and Others, , decided on 10.12.2011.
264. Therefore, I am of the view that cost of rupees two lacs in each case will have to be awarded but the same will have to be given to the office
of District Government Council for the purposes of library/computer through concerned District Judge. Except the above, I agree with the
remaining part of the judgment and support the view that the District Judge must have the supremacy in making the recommendation/appointment
for District Government Council and alike.