REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 9029 OF 2012
(Arising out of SLP (Civil) Nos. 35279 of 2009)
State of U.P. & Ors. … Appellants
Versus
Ashok Kumar Nigam … Respondent
WITH
CIVIL APPEAL NO. 9030 OF 2012
[Arising out of SLP(C) No. 24562 of 2010]
CIVIL APPEAL NO. 9031 OF 2012
[Arising out of SLP(C) No. 24563 of 2010]
CIVIL APPEAL NO. 9032 OF 2012
[Arising out of SLP(C) No. 24564 of 2010]
CIVIL APPEAL NO. 9033 OF 2012
[Arising out of SLP(C) No. 35561 of 2010]
CIVIL APPEAL NO. 9034 OF 2012
[Arising out of SLP(C) No. 35562 of 2010]
CIVIL APPEAL NO. 9035 OF 2012
[Arising out of SLP(C) No. 35569 of 2010]
CIVIL APPEAL NO. 9036 OF 2012
[Arising out of SLP(C) No. 35568 of 2010]
CIVIL APPEAL NO. 9037 OF 2012
[Arising out of SLP(C) No. 35567 of 2010]
CIVIL APPEAL NO. 9038 OF 2012
[Arising out of SLP(C) No. 35566 of 2010]
CIVIL APPEAL NO. 9039 OF 2012
[Arising out of SLP(C) No. 35565 of 2010]
CIVIL APPEAL NO. 9040 OF 2012
[Arising out of SLP(C) No. 9156 of 2011]
CIVIL APPEAL NO. 9041 OF 2012
[Arising out of SLP(C) No. 13788 of 2011]
CIVIL APPEAL NO. 9042 OF 2012
[Arising out of SLP(C) No. 20917 of 2011]
CIVIL APPEAL NO. 9043 OF 2012
[Arising out of SLP(C) No. 20918 of 2011]
CIVIL APPEAL NO. 9044 OF 2012
[Arising out of SLP(C) No. 11261 of 2010]
CIVIL APPEAL NO. 9045 OF 2012
[Arising out of SLP(C) No. 12993 of 2010]
CIVIL APPEAL NO. 9046 OF 2012
[Arising out of SLP(C) No. 18407 of 2011]
J U D G M E N T
Swatanter Kumar J.
1. Leave granted in all the Special Leave Petitions.
2. These appeals are directed against the judgment of the High Court of
Judicature at Allahabad, Lucknow Bench. Though dated differently, the
questions of law involved in all these appeals are identical based upon
somewhat similar facts. SLP(C) No. 35569 of 2010 was filed against the
order dated 24th September, 2008, SLP(C) No. 35568 of 2010 was filed
against the order dated 29th September, 2008, SLP(C) No. 35565 of 2010 was
filed against the order dated 14th September, 2009, SLP(C) No. 35566 of
2010 against the order dated 18th September, 2010, SLP(C) No. 35279 of
2009, SLP(C) No. 24562 of 2010, SLP(C) No. 24564 of 2010 and SLP(C) No.
35567 of 2010 against the order dated 14th October, 2009, SLP(C) No. 12993
of 2010, SLP(C) No. 24563 of 2010 and SLP(C) No. 35561 of 2010 against the
order dated 16th November, 2009, SLP(C) No. 11261 of 2010 against the order
dated 21st January, 2010, SLP(C) No. 35562 of 2010 against the order dated
9th April, 2010, SLP(C) No. 9156 of 2011 against the order dated 19th
January, 2011, SLP(C) No. 20918 of 2011 and SLP(C) No. 13788 of 2011
against the order dated 28th April, 2011, SLP(C) No. 20917 of 2011 against
the order dated 29th April, 2011 and SLP(C) No. 18407 of 2011 against the
order dated 26th April, 2011.
3. We have taken the case of Ashok Kumar Nigam (supra) i.e. Civil Appeal
@ SLP(C) No. 35279 of 2009 as the lead case. Before we proceed to notice
the facts giving rise to the present appeal in that case, it is necessary
for us to notice that SLP (Civil) No. 9156 of 2011 has been directed
against an interim order passed by the Division Bench of that High Court in
Miscellaneous Bench No. 523 of 2003 titled “Pramod Sharma v. State of Uttar
Pradesh”. The interim order dated 19.1.2011 had directed that no regular
appointment shall be made on the post Government Advocate in place of the
appellant. Vide its judgment dated 10th February, 2011, the Division Bench
of the High Court finally disposed of the interim application by staying
the operation of the orders dated 24th December, 2010 and 28th December,
2010 passed by the respondents. It further directed that the appellant be
allowed to continue as the District Government Counsel (Criminal) subject
to any decision being taken afresh in accordance with the directive issued
by the judgment of that Court passed in Writ Petition No.10038(MB) of 2009.
In other words, the interim order had merged into the order of the High
Court dated 10th February, 2011 against which as of now, no petition has
been filed. Thus, the special leave petition No. 9156 of 2011 has been
rendered infructuous and is accordingly dismissed as such.
SLP(C) No. 35279 of 2009
4. Mr. Ashok Kumar Nigam, respondent herein was appointed as District
Government Counsel on 17th September, 2004 vide a notification issued by
the State Government. The term of the said respondent was renewed on 3rd
March, 2006 for a period of one year and as such his term came to an end on
5th March, 2007. The respondent submitted his application for renewal of
his term on 19th January, 2007. The District Judge, Lucknow on 26th
February, 2007 gave his report and the District Magistrate also submitted
his report on 5th March, 2007 recommending the renewal of the term of the
respondent. However, the State Government, appellant herein, vide order
dated 3rd April, 2008 refused his renewal which resulted in cancellation of
engagement of the said respondent. The order dated 3rd April, 2008 can
usefully be reproduced at this stage:-
“From
Acharya Suresh Babu
Deputy Secretary
Government of Uttar Pradesh
To
The District Magistrate
Lucknow
Nyay-Anubhag-3-Appointment Lkw, dated 3.4.2008
Sub: Renewal of Tenure of engagement of District Government
Counsels at the District Level
Sir,
With reference to your Letter No. 855/JA(2)/Advocate-Renewal/07
dated 5.3.2007, I have been directed to say that after due
consideration, the Hon’ble Governor had kindly ordered not to
renew the tenure of engagement of Sh. Ashok Kumar Nigam, as
District Government Counsel (Criminal), Lucknow.
Accordingly, in the aforesaid background, the engagement order of
Sh. Ashok Kumar Nigam, as District Government Counsel is hereby
terminated.
Please take necessary action at your end and forward your proposal
from the panel of Advocates for being engaged as District
Government Counsel against the consequential vacancy.”
5. Aggrieved from the above order, the respondent filed writ petition
before the High Court of Allahabad, Lucknow Bench. In the writ petition,
the stand taken by the respondent was that in terms of the rule, the
petitioner has a right to continue and in any case for consideration of
renewal of his term, the impugned order does not state any reasons and, in
fact, does not take into consideration the recommendations made by the
District and Sessions Judge and the District Magistrate, who had
recommended renewal of the term of the respondent. The High Court after
hearing the counsel appearing for the parties, vide its judgment dated 14th
October, 2009, allowed the writ petition, setting aside the order dated 3rd
April, 2008 and even granting further relief to the appellant. The
operative part of the High Court judgment reads as under:-
“For the reasons stated above, the order impugned dated
03.04.2008 is hereby set aside.
We are informed that no person has yet been appointed or
engaged in place of the petitioner, in view of the interim
order passed by this Court, we, therefore, further provide that
the petitioner shall be allowed to continue to discharge the
functions and duties of the District Government Counsel, till
the consideration of the renewal of his term in accordance with
law.
We may further clarify that the renewal of the petitioner’s
term shall be considered in accordance with the relevant
provisions of L.R. manual (unamended para 7.08 as the
amendments made in L.R. Manual are subject matter of challenge
in W.P. No. 7851 (M/B) of 2008 wherein the implementation of
the amended provisions stand stayed) if he has not crossed the
age of 60 years but if he has already attained the age of 60
years, but has not yet reached the age of 62 years then his
case will be considered for extension of his term upto the age
of 62 years and for that consideration, if any further
formalities are to be completed or some certificates are
needed, he shall be given an opportunity to furnish the same,
so that his case may be considered in accordance with the
relevant rules. Writ petition is allowed. Cost easy.”
6. Aggrieved from the above judgment of the High Court, the State of
Uttar Pradesh (appellant herein) has filed the present appeal before this
Court. The challenge to the impugned order is, inter alia, but primarily
on the following grounds:-
A) In terms of the relevant rule, the State Government has discretion to
terminate the term of the District Government Counsel (Criminal), and
in any case, the term of the respondent had come to an end by efflux
of time, and therefore, the High Court has exceeded its jurisdiction
in setting aside the order dated 3rd April, 2008.
B) At best, if allowing the writ petition, the High Court could set aside
the impugned order, but could not direct that they be retained or
continued till the age of 60 or 62 years as the case may be. The
respondent would only have a right of consideration and nothing more,
therefore, the judgment of the High Court suffers from apparent
errors. The High Court gave no reasons much less valid reasons for
setting aside the order dated 3rd April, 2008.
7. Opposed to the above contentions, it is contended on behalf of the
respondents that the order dated 3rd April, 2008 was a non-speaking order
and suffered from the vice of non-application of mind and was arbitrary and
has correctly been set aside by the High Court. Reliance in this regard
is placed upon the judgment of this Court in the case of Kumari Shrilekha
Vidyarthi and Others v. State of U.P. & Ors. [(1991) 1 SCC 212]. Further,
that the impugned order dated 3rd April, 2008 is contrary to the rules in
force. The order of the High Court under appeal does not call for any
interference.
8. Before we examine the merit or otherwise of the contentions, it will
be appropriate for this court to notice the relevant rule. Chapter 7 of
the Legal Remembrancer’s Manual deals with District Government Counsel.
In terms of Para 7.01, the District Government Counsel are legal
practitioners appointed by the State Government to conduct in any court,
other than the High Court, such civil, criminal or revenue cases on behalf
of the State Government as assigned to them either generally or specially.
Para 7.02 deals with the power of the government to appoint government
counsels in the districts. As per this provision, the government was to
ordinarily appoint District Government Counsel (Criminal), District
Government Counsel (Civil) and District Government Counsel (Revenue) for
each district, for which they have to make an application.
9. Under these rules, the appointments are to be made and renewal to be
considered upon the recommendation of the District Officer and the District
Judge. The rules even state the factors which are to weigh in the mind of
the recommending authority while recommending or declining to recommend
renewal of term of the government pleaders. Paras 7.6 to 7.8 read as
under:-
“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 Rememberancer 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 no 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 assisting any cause.
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
Remembrancre, 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 along with 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 thereof 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.”
10. From the above rules, it is clear that the government counsel has to
be appointed and/or his term renewed upon recommendation of the District
Judge and the District Officer and in accordance with the procedure
prescribed under the above rules. It is only when the recommendations
based upon stated criteria are unfavourable to the applicant in question
that the government could decline renewal of the term. In the present
case, we are not concerned with the appointment as such. All the cases in
hand are cases of renewal of term.
11. The High Court in its judgment has noticed that the order dated 3rd
April, 2008 clearly shows that the request for renewal has been rejected
without considering the recommendation of the District Judge and District
Magistrate. The High Court has even noticed in its judgment that in view
of this fact it had called for the records and the records produced did not
show proper consideration by the State Government before refusing to grant
renewal of the term of the respondent. The High Court also noticed that
the Government had taken enblock decision that the renewal in the cases of
such Government counsel whose term have come to an end will not be granted.
It was in pursuance to this decision that the government refused to grant
renewal to the respondent as well.
12. The High Court had examined the records and after being satisfied
that the record produced did not exhibit proper application of mind or due
consideration as per prescribed procedure and the action being arbitrary,
had set aside the order dated 3rd April, 2008. There is nothing on record
placed before this court by the appellant that could demonstrate that such
view of the High Court suffered from any infirmity. The prescribed
procedures under para 7.08 of the Manual requires the government to invite
to invite opinion of the District Judge and District Officer, three months
prior to the expiry of the term of the District Government Counsel. By
amendment, proviso was added to para 7.03 to provide that District
Magistrate shall always be free to nominate such person who may be found
eligible but who had not submitted particulars for being appointed as such.
As per the prescribed procedure, the office of Legal Remembrance was
expected to consider the past record of work and conduct of the concerned
District Government Counsel and then to send a report together with the
statement of work done by such applicant. The High Court had clearly
stated the principle that where there is conflict between the
recommendation of the District Judge and the District Magistrate, primacy
shall be given to the report of the District Judge. Thus, in our opinion,
the onus is shifted to the State to show that it had acted in accordance
with the prescribed procedure and its action does not suffer from the vice
of discrimination and arbitrariness.
13. Total non-application of mind and the order being supported by no
reason whatsoever would render the order passed as ‘arbitrary’.
Arbitrariness shall vitiate the administrative order. The rules provide a
procedure and even require the State Government to consider the case for
renewal of the government counsel whose term is coming to an end. The
scheme of para 7.06 of the Manual is that appointment of a government
pleader is to be made for a period of one year and at the end of the
period, the District Officer in consultation with the District Judge is
required to submit a report on the work and conduct to the legal
remembrancer together with the work done in Form 9. It is only when his
work or conduct is found to be unsatisfactory that it is so reported to the
government for appropriate orders. If the report is satisfactory, the rule
requires that he may be furnished with a deed of engagement in form I, for
a term not exceeding three years, on his first engagement. In terms of
para 7.06 (3), the Government reserves the power to terminate the
appointment of any District Government Counsel at any time without
assigning any cause. Firstly, one has to examine the entire scheme of
para 7.06 (3). It cannot be read in isolation. The right of consideration
for renewal for the specified period is a legitimate right vested in an
applicant and he can be deprived of such right and be declined renewal
where his work is unsatisfactory and is so reported by the specified
authorities. It is difficult to comprehend that clause (3) of para 7.06
can be enforced in the manner as suggested. If it is construed, as
suggested, that the government has an absolute right to terminate the
appointment at any time without specifying any reason, it will be violative
of Articles 14 and 16 of the Constitution of India and such rule shall be
arbitrary, thus not sustainable in law. In the case of Delhi Transport
Corporation v. D.T.C. Mazdoor Congress [1991 Supp. (1) SCC 600] while
dealing with Regulation 9, which was worded similarly, this Court held as
under:-
“202. Thus on a conspectus of the catena of cases decided by
this Court the only conclusion that follows is that Regulation
9(b) which confers powers on the authority to terminate the
services of a permanent and confirmed employee by issuing a
notice terminating the services or by making payment in lieu of
notice without assigning any reasons in the order and without
giving any opportunity of hearing to the employee before passing
the impugned order is wholly arbitrary, uncanalised and
unrestricted violating principles of natural justice as well as
Article 14 of the Constitution. It has also been held
consistently by this Court that the government carries on
various trades and business activity through the instrumentality
of the State such as Government Company or Public Corporations.
Such Government Company or Public Corporation being State
instrumentalities are State within the meaning of Article 12 of
the Constitution and as such they are subject to the observance
of fundamental rights embodied in Part III as well as to conform
to the directive principles in Part IV of the Constitution. In
other words the Service Regulations or Rules framed by them are
to be tested by the touchstone of Article 14 of Constitution.
Furthermore, the procedure prescribed by their Rules or
Regulations must be reasonable, fair and just and not arbitrary,
fanciful and unjust. Regulation 9(b), therefore, confers
unbridled, uncanalised and arbitrary power on the authority to
terminate the services of a permanent employee without recording
any reasons and without conforming to the principles of natural
justice. There is no guideline in the Regulations or in the Act,
as to when or in which cases and circumstances this power of
termination by giving notice or pay in lieu of notice can be
exercised. It is now well settled that the ‘audi alteram partem’
rule which in essence, enforces the equality clause in Article
14 of the Constitution is applicable not only to quasi-judicial
orders but to administrative orders affecting prejudicially the
party-in-question unless the application of the rule has been
expressly excluded by the Act or Regulation or Rule which is not
the case here. Rules of natural justice do not supplant but
supplement the Rules and Regulations. Moreover, the Rule of Law
which permeates our Constitution demands that it has to be
observed both substantially and procedurally. Considering from
all aspects Regulation 9(b) is illegal and void as it is
arbitrary, discriminatory and without any guidelines for
exercise of the power. Rule of law posits that the power is to
be exercised in a manner which is just, fair and reasonable and
not in an unreasonable, capricious or arbitrary manner leaving
room for discrimination. Regulation 9(b) does not expressly
exclude the application of the ‘audi alteram partem’ rule and as
such the order of termination of service of a permanent employee
cannot be passed by simply issuing a month's notice under
Regulation 9(b) or pay in lieu thereof without recording any
reason in the order and without giving any hearing to the
employee to controvert the allegation on the basis of which the
purported order is made.
203. It will be profitable to refer in this connection the
observations of this Court in the case of Union of India v.
Tulsiram Patel where the constitutionality of provisions of
Article 311 particularly the second Proviso to clause (2) of the
said article came up for consideration. This Court referred to
the findings in Roshan Lal Tandon v. Union of India wherein it
was held that though the origin of a government service is
contractual yet when once appointed to his post or office, the
government servant acquires a status and his rights and
obligations are no longer determined by the consent of both the
parties, but by statute or statutory rules which may be framed
and altered unilaterally by the government. In other words, the
legal position of a government servant is more one of status
than of contract. The hall-mark of status is the attachment to a
legal relationship of rights and duties imposed by the public
law and not by mere agreement of the parties. It has been
observed that Article 14 does not govern or control Article 311.
The Constitution must be read as a whole. Article 311(2)
embodies the principles of natural justice including audi
alteram partem rule. Once the application of clause (2) is
expressly excluded by the Constitution itself, there can be no
question of making applicable what has been so excluded of
seeking recourse to Article 14 of the Constitution.”
14. Thus, in our opinion it was not permissible for the government to
take recourse to Para 7.06 (3) in the manner in which it has done and in
any case, the said rule can hardly be sustained in law.
15. The order dated 3rd April, 2008 is even liable to be quashed on
another ground, that it is a non-speaking order also suffering from the
vice of non-application of mind. As already discussed, the government has
taken an enblock decision, without recording any reason, not to renew the
term of any of the government counsel. That itself shows that there is no
application of mind. In the case of Kumari Shrilekha (supra), this Court
expressed the opinion that it would be alien to the Constitutional Scheme
to accept the argument of exclusion of Article 14 in contractual matters.
The arbitrary act of the State cannot be excluded from the ambit of
judicial review merely on the ground that it is a contractual matter. The
expression ‘At any time without assigning any cause’, can be divided into
two portions, one “at any time”, which merely means the termination may be
made even during the subsistence of the term of appointment and second,
“without assigning any cause” which means without communicating any cause
to the appointee whose appointment is terminated. However, “without
assigning any cause” is not to be equated with “without existence of any
cause”.
16. Further, this Court in the case of Assistant Commissioner, Commercial
Tax Department, Works Contract and Leasing v. Shukla and Brothers [(2010) 4
SCC 785], impressed upon the need for recording of appropriate reasons in
orders and held as under:-
“11. The Supreme Court in S.N. Mukherjee v. Union of India while
referring to the practice adopted and insistence placed by the
courts in United States, emphasised the importance of recording
of reasons for decisions by the administrative authorities and
tribunals. It said “administrative process will best be
vindicated by clarity in its exercise”. To enable the courts to
exercise the power of review in consonance with settled
principles, the authorities are advised of the considerations
underlining the action under review. This Court with approval
stated: (SCC p. 602, para 11)
‘11. … ‘the orderly functioning of the process of review
requires that the grounds upon which the administrative
agency acted be clearly disclosed and adequately
sustained’.’
12. In exercise of the power of judicial review, the concept of
reasoned orders/actions has been enforced equally by the foreign
courts as by the courts in India. The administrative authority
and tribunals are obliged to give reasons, absence whereof could
render the order liable to judicial chastisement. Thus, it will
not be far from an absolute principle of law that the courts
should record reasons for their conclusions to enable the
appellate or higher courts to exercise their jurisdiction
appropriately and in accordance with law. It is the reasoning
alone, that can enable a higher or an appellate court to
appreciate the controversy in issue in its correct perspective
and to hold whether the reasoning recorded by the court whose
order is impugned, is sustainable in law and whether it has
adopted the correct legal approach. To subserve the purpose of
justice delivery system, therefore, it is essential that the
courts should record reasons for their conclusions, whether
disposing of the case at admission stage or after regular
hearing.”
17. The order dated 3rd April, 2008, which we have reproduced above,
clearly shows non-application of mind and non-recording of reasons, which
leads only to one conclusion, that the said order was an arbitrary exercise
of power by the State. We cannot find any fault with the reasoning of the
High Court in that behalf. But we do find some merit in the contention
raised on behalf of the appellant State that the High Court should not have
directed appointments while regulating the age, as has been done by the
High Court in operative part of its judgment. There is right of
consideration, but none can claim right to appointment. Para 7.06 states
that renewal beyond 60 years shall depend upon continuous good work, sound
integrity and physical fitness of the counsel. These are the
considerations which have been weighed by the competent authority in the
State Government to examine whether renewal/extension beyond 60 years
should be granted or not. That does not ipso facto means that there is a
right to appointment upto the age of 60 years irrespective of work, conduct
and integrity of the counsel. The rule provides due safeguards as it
calls for the report of the District Judge and the District Officer
granting renewal.
18. Thus, for the above-recorded reasons, while declining to interfere in
the judgment of the High Court, we direct that the government shall
consider cases of the respondents in these petitions for renewal in
accordance with the procedure prescribed and criteria laid down under Paras
7.06 to 7.08 of the LR Manual. The consideration shall be completed as
expeditiously as possible and, in any case, not later than three months
from today.
19. Subject to the above observations, all the appeals are dismissed
without any order as to costs.
.………...….…………......................J.
(Swatanter Kumar)
…..…………..................................J.
(Sudhansu Jyoti Mukhopadhaya)
New Delhi,
December 13, 2012
