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Judgment
Preliminary objection filed by the respondents is taken on record.
This is a bunch of writ petitions in which controversy raised is with regard to appointment and renewal on the post of Additional District Government Counsel, Assistant District Government Counsel, Panel Lawyers and Sub District Government Counsel.
We do not propose to set aside the appointment already done under the amended L.R. Manual for the reasons discussed hereinbelow:
Appointment and renewal done in pursuance to the amended L.R. Manual vide Government Order dated 13th of August, 2008 has been set aside by a Division Bench of this Court of which one of us (Hon''ble Devi Prasad Singh, J.) was a member in Writ Petition No. 7851 (MB) of 2011; U.P. Shaskiya Adhivakta Kalyan Samiti, 8, Mustafa Market, Si Vs. State of U.P. Through Prin. Secretary Nyay Evam Vidhi Parama) and other connected writ petitions. The finding as well as operative portion of the order passed by the Division Bench in the aforesaid writ petition is reproduced below:
(XVI) FINDING
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 SLP 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 versus 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, u/s 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 reported 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 SLP 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 reported in Harpal Singh Chauhan and others Vs. State of U.P., Harpal Singh Chauhan and others versus State of U.P (para 15), Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, Km. Srilekha Vidyarthi and others versus State of U.P. and others (paras 11, 46 and 47) and a Division Bench''s judgment of this Court reported in Shailendra Kumar Ojha and Others Vs. State of U.P. and Others, Shailendra Kumar Ojha versus State of U.P. (paras 26 and 45), 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 along with impugned Government Order as both cannot stand together. Under Art. 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 CrPC. Even special counsel appointed u/s 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 u/s 24(8) of CrPC 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 u/s 24, read with Section 25-A of the CrPC. 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 along with 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.
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.
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.
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]
In view of above, these bunch of writ petitions deserves to be allowed with exemplary cost in the manner discussed hereinabove.
(XVII) ORDER
(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 No. 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.
In view of above, the amended provision which has been inserted in L.R. Manual in pursuance to which the appointment and renewal were done has been set aside by the aforesaid Division Bench''s judgment passed in the abovementioned writ petition.
Apart from above, Section 24 of the Code of Criminal Procedure was amended by the State of U.P. vide Code of Criminal Procedure (U.P. Amendment) Act, 1991 (Act No. 18 of 1991 by the State Amending Act. The State of U.P. has deleted the provisions contained in sub-Sections (4), (5) and (6) of the Code of Criminal Procedure whereby the Parliament had provided to obtain opinion of the District Judge while making appointment on the post of Public Prosecutors/District Government Counsels.
The Division Bench of this Court judgment of which was delivered by one of us (Hon''ble Devi Prasad Singh, J.) while considering the validity of the U.P. Amendment in Writ Petition No. 7825 (MB) of 2011; Sadhna Sharma Vs. State of U.P. & Ors and other connected writ petition has declared the same as ultra vires, unconstitutional, void & illegal and restored the old provision which relates to obtain opinion of District Judge of the respective districts while making appointment on the post of Additional District Government Counsel, Assistant District Government Counsel, Panel Lawyers and Sub District Government Counsel. The finding recorded and order passed by the Division Bench in Writ Petition No. 7825 (MB) of 2011 is reproduced below:
XI- FINDINGS
Subject to discussion and finding recorded hereinabove in the preceding paragraphs, the impugned amendment seems to be ultra vires and not sustainable and we sum up the finding as under:
(1) There is no strict separation of power under the Indian Constitution. Accordingly, the consultation of the district Judge, as ruled by Hon''ble Supreme Court (supra), seems to not suffer for want of jurisdiction or authority under the principle of "Separation of Power".
(2) The post of the District Government Counsel cannot be compared with the post of Advocate General/Attorney General and other constitutional posts. The post of the District Government Counsel is the statutory post and keeping in view the observations of Hon''ble Supreme Court in the case of Zahira Habibulla (supra), read with Section 25-A of CrPC, the impugned amendment in case sustained, shall subversive to the Administration of justice.
(3) The special counsel is different class than the District Government Counsel appointed under subsection (4), (5) and (6) of Section 24 of Code of Criminal Procedure. Thus, so far as the supervisory or statutory control is concerned by inserting Section 25-A, Parliament removed the difference between the counsel appointed on the recommendation of the District Judge and District Magistrate and a special counsel appointed by the Government straight way in a particular case. Accordingly, in case impugned amendment is sustained, then it shall be in derogation of letter and spirit of Section 25-A of CrPC and shall be repugnant to Central Act in view of proviso to Clause (2) of Article 254 of the Constitution. Both cannot stand together.
(4) While amending the Act, the State Government has not taken into account the reports of different Law Commissions hence impugned amendment suffers from non-application of mind.
(5) Aims and objects are based on unfounded facts. Hence also, the impugned amendment is against the settled proposition of law and is an instance of arbitrary exercise of power, hence hit by Article 14 of the Constitution.
(6) The impugned amendment is contrary to the object and scheme of the Code of Criminal Procedure, 1973. Hence also, it suffers from vice of arbitrariness.
(7) The impugned amendment is hit by the proviso of Clause (2) of Article 254 of the Constitution of India and repugnant to Section 25-A of CrPC. Both cannot stand together inasmuch as, following one, will make the other ineffective.
(8) The purpose of Section 25-A of CrPC is to make prosecuting branch independent from the Government to optimum level. That is why even Special Counsel appointed under sub-section (8) of Section 24 has been placed under the Directorate of Prosecution.
(9) The impugned amendment is also not sustainable being enacted without taking into account the judgment of Hon''ble Supreme Court in the case of Km. Shrilekha Vidyarthi (supra) which was necessary in the light of the law laid down by Hon''ble Supreme Court in the case of P. Venugopal Vs. Union of India (UOI),
(10) Reliance placed by the Government on the report of an Additional District Sessions Judge ignoring the report of two other Additional District & Sessions Judges seems to be exceeding of jurisdiction. While rejecting the renewal, opinion should have been obtained from the District Judge, and no reliance could have been placed on report of Additional District & Sessions Judge who is incompetent under the L. R. Manual. Rejection of application of renewal suffers from vice of arbitrariness.
(11) Impugned Government order amending L. R. Manual suffers from vice of arbitrariness as held while deciding W.P. No.7851 (M/B) of 2008 and connected petitions decided by the judgment and order dated 6.1.2012, requires no fresh adjudication.
(12) The entire object and reason of the amending Act is based on unfounded grounds having no nexus with the object sought to be achieved. Hence suffers from unreasonableness and is irrational hence hit by Article 14 of the Constitution of India.
XII-ORDER
In view of the above, the writ petitions are allowed
as under:
(i) Code of Criminal Procedure (U.P. Amendment) Act, 1991 (Act No.18 of 1991) (Section 2) is declared ultra vires, unconstitutional, void and illegal restoring the original provision with natural consequences to the extent it relates to amendment done in Section 24 of the Code of Criminal Procedure, 1973.
(ii) A writ in the nature of certiorari is issued quashing the order dated 22.3.2011 passed by the State Government communicated to the petitioner vide letter dated 28.3.2011 as well as order dated 30.3.2011, passed by the District Magistrate, Badaun contained in Annexure No.1 and 2 to the W.P. No.4097 (M/B) of 2011, with consequential benefits with liberty to proceed afresh with due consultation with the District Judge and District Magistrate.
(iii) A writ in the nature of mandamus is issued commanding the respondents to reconsider the petitioner''s case in the light of observations made in the body of judgment, expeditiously and in the meantime, the petitioner shall be permitted to discharge duty in accordance with Rules.
(iv) A writ in the nature of mandamus is issued commanding the State of U.P. to consider for amendment in the L.R. Manual keeping in view the finding recorded and observations made in the body of judgment expeditiously say, within three months.
(v) No orders as to costs.
In view of the judgment of Sadhana Sharma (supra), it became mandatory on the part of the State to seek opinion of the District Judge of the respective districts while making appointment on the post of Additional District Government Counsel, Assistant District Government Counsel, Panel Lawyers and Sub District Government Counsel.
It has been observed in the judgment of Sadhna Sharma (supra) that once the provision has been declared ultra vires and unconstitutional, the old provision has been revived and the amended provision shall be deemed to be non-existing on the statute book.
While raising preliminary objection, Sri Raghvendra Kumar Singh, learned Sr. Advocate appearing on behalf of the State submitted that the old provision will not be revived and his further submission is that certain arguments have not been considered. We are not inclined to permit for de novo hearing of the same issue more so when the controversy in question has been settled at rest by the aforesaid two judgments of this Court.
Since the amended L.R. Manual and U.P. amendment in Cr. P.C. has been struck down (supra), the selection and appointment done become illegal & void. However, to meet the exigencies of services appointment done under the amended L.R. Manual may be permitted to continue for reasonable period, permitting the State Government, to re-consider the renewal & appointments in the light of judgments of this Court (supra).
Accordingly, we dispose of this bunch of writ petitions with the following directions:
(1) Let the State of U.P. re-consider the selection and appointment on the post of Additional District Government Counsel, Assistant District Government Counsel, Panel Lawyers and Sub District Government Counsel in the light of the aforesaid two judgments passed by the Division Bench of this Court afresh, expeditiously, say within a period of four months from today.
(2) The persons appointed in pursuance to old provision shall continue for the period of four months or till reconsideration of their cases in the light of the aforesaid two judgment passed by the Division Bench (supra), whichever is earlier.
(3) No fresh appointments shall be done henceforth except in accordance to law settled by aforesaid two judgments (supra). In case some of the petitioners are still holding the post then they shall continue on their respective post till the State Government considers afresh with regard to their renewal of appointment with due opportunity to the serving incumbents in the light of judgments of this Court (supra).
The writ petitions are disposed of accordingly.