Israwati vs Additional Commissioner Judicial and Others

Heard learned counsel on behalf of the petitioner and the learned Standing Counsel for the State-respondents. The petitioner before this Court seeks quashing of the order dated 5.2.2013, Annexure 26 to the present writ petition, whereunder the State Government has taken a decision not to renew the term of the petitioner as Assistant Government Counsel, Revenue at District-Fatehpur.

The petitioner by means of the amendment application, which has been filed today, has prayed for quashing of the order dated 2 June 2014 whereby the petitioner has been informed by the District Magistrate, Fatehpur that as per the Government Order dated 30 May 2014 it has been decided not to renew the term of the petitioner as Assistant Government Advocate, Revenue, Fatehpur. However, he is free to make an application as and when fresh applications are invited for the post in question.

From the records of the present writ petition, it is apparent that the petitioner before this Court was appointed as Additional District Government Counsel, Revenue in the year 2000 and it is his case that his work and performance was throughout satisfactory. As a consequence thereto his term as Assistant District Government Counsel was renewed from time to time. The petitioner in order to substantiate that his work and performance was throughout satisfactory has referred to the reports, which were submitted by the District Magistrate, Fatehpur to the State Government under letter dated 23.2.2005 and dated 2.3.2006. According to the petitioner even in the year 2010, which is the relevant year for the purposes of the present writ petition his work and performance was highly satisfactory. However, the Deputy Direction of Consolidation for certain reasons was annoyed with him and he, therefore, submitted a report which suggested that the petitioner was not discharging his duties as expected from an Advocate on behalf of the State.

According to the petitioner, the report is totally misconceived for following reasons:

(a) The Deputy Director of Consolidation had no role to play in the matter of assessment of the work and performance of the petitioner as Additional Government Advocate, Revenue.

(b) The success rate of the petitioner was very high and, therefore, the allegation that the petitioner did not recommend for filing of the revision is totally uncalled for, inasmuch as, revisions are to be filed only against the orders which are adverse to the interest of the State/Gaon Sabha.

It is then contended that in view of the judgment of the Division Bench of the High Court in the case of Ajay Kumar Sharma being Writ Petition No. 9127 of 2012 decided on 5.11.2014 it is only the recommendation of the District Magistrate and the District Judge, which are material in the matter of consideration of the renewal of the term of appointment of the District Government Counsels, therefore, the report of the Deputy Director of Consolidation was liable to be ignored.

Counsel for the petitioner also took the Court through the documents enclosed at page 79 & 80 for explaining that the petitioner was never appointed as counsel for the Court of Deputy Director of Consolidation, therefore, the Deputy Director could not have assessed his performance nor could he have submitted any report in that respect. He further submitted that subsequent to the judgment of the High Court in the case of Ajay Kumar Sharma (supra), the matter should be revisited by the State Government and since such an exercise had not been undertaken this Court may issue orders for reconsideration of the case of the petitioner for renewal in light of the said judgment. Petitioner has also challenged the order of the District Magistrate dated 2.8.2012, which communicates the decision of the State Government dated 30.5.2014 qua the petitioner being not found suitable for renewal of his term as Additional District Counsel.

We have heard the counsel for the petitioner and the learned Standing Counsel.

From the records of the present writ petition it is apparent that the petitioner was appointed as Assistant District Government Counsel, Revenue at Fatehpur. It is admitted on record that he was assigned the duty of looking after the cases, which were filed before the Consolidation Authorities. It is no doubt true that in the year 2004 & 2005 there had been recommendations in favour of the petitioner for renewal of his term of appointment after his work and performance was found satisfactory. But, that is past history. What is relevant for deciding the present wit petition is the performance of the petitioner, as reported by the authorities as per the report dated 1.6.2012. The Division Bench of this Court in the case of Ajay Kumar Sharma (supra) after considering the law applicable on the subject has held that a decision on the renewal of appointment of District Government Counsels has to be taken on the basis of the reports of the District Judge and the District Magistrate.

We find that the District Magistrate, Fatehpur had submitted a report dated 11.6.2012 qua the work and performance of the petitioner. At item No. (vii) it was reported as follows:

From a simple reading of the said report it is apparently clear that adverse comments have been made against the work and performance of the petitioner, which strongly reflect upon his uncaring attitude towards the duties assigned to him in respect of the cases before the Consolidation Authorities. The report submitted by the District Magistrate has specifically being taken note of by the State Government while passing the order dated 5.1.2013 impugned in the present writ petition. As a matter of fact there has been verbatim reproduction of some of the facts noticed qua the conduct, work and performance of the petitioner.

In our opinion, the facts so disclosed do constitute sufficient material for the State Government to not to renew the term of the petitioner as District Government Counsel, Revenue.

We may now deal with the documents, which have been so heavily relied upon by the petitioner enclosed at page 79 and 81 of the present writ petition.

From a simple reading of the said document it is apparently clear that the same are in the shape of question are whereby the petitioner has asked as to who was to act as Government Counsel before the Settlement Officer, Consolidation and who was Government Counsel in the Court of Deputy Director of Consolidation.

We may record that merely because the petitioner was not the Government Advocate assigned for discharging duties in the Court of Deputy Director of Consolidation it will not mean that the report, which has been submitted by the District Magistrate on the basis of the information received from the Deputy Director of Consolidation would be rendered bad, inasmuch as, in the said report it has been mentioned that after the orders were passed against the interest of Gaon Sabha, he did not do the needful for getting the orders of the Settlement Officer, Consolidation challenged by proposing the revision under Section 48 of the Consolidation and Holdings Act. It is the petitioner alone who could have suggested that the order passed by the Settlement Officer, Consolidation need be challenged before the Revisional Court. Since the petitioner has failed to discharge such obligation as expected from a fair and reasonable counsel, the Deputy Director of Consolidation has rightly submitted an adverse report against the petitioner. This Court further finds that there are allegations of necessary mutation being not carried out in terms of the orders of the Settlement Officer, Consolidation, which was primary responsibility of the petitioner.

In the totality of the circumstances on record it cannot be said that the decision taken by the State Government for not renewing the term of appointment of the petitioner suffers from any arbitrariness.

We may record that engagement of a counsel is to an office of trust. If there are sufficient reasons for loss of trust in a particular counsel then it cannot be said that the State Government has committed any error in not appointing the said Advocate as its counsel again.

In the facts of the case, there is no reason to interfere with the decision of the State Government dated 5.2.2013 as also against the order of the District Magistrate dated 2.6.2014, which has been challenged by means of the amendment application. This writ petition is, therefore, dismissed. However, this order shall not prejudice the right of the petitioner to apply afresh as and when any advertisement is published.