Legal Remembrancer’s Manual (for short, ‘LR Manual’) framed by the
Government of Uttar Pradesh and
Section 24 of the Code of Criminal
Procedure (Cr.P.C.) whether the respondent who had been
appointed as District Government Counsel (Criminal) at Meerut in January,
1993 was entitled to have the term of his appointment renewed. - No =
Legal Remembrancer’s Manual (for short, ‘LR Manual’) framed by the
Government of Uttar Pradesh and
Section 24 of the Code of Criminal
Procedure (Cr.P.C.) contain a comprehensive mechanism for appointment of
District Government Counsel for Civil, Criminal and Revenue Courts in the
State and renewal of their term.
However, from 1990 onwards these
provisions have become victim of the spoil system and have been misused by the party in power for conferring favours upon chosen advocates. =
whether the
existing District Government Counsel and Additional District Government
Counsel are entitled to renewal of their term as of right or the State
Government is required to act in consonance with paragraph 7.08 of the LR
Manual and the judgments of this Court in Johri Mal’s case and Rakesh Kumar
Keshari’s case, is yet to be decided. Therefore, the Division Bench of the
High Court was not at all justified in issuing an interim mandamus for
renewal of the appointments of respondent Nos. 1 and 2. While doing so, the
High Court ignored the law laid down in Ramesh Chandra Sharma’s case,
Harpal Singh Chauhan’s case, Johri Mal’s case and Rakesh Kumar Keshari’s
case as also Ashok Kumar Nigam’s case, that appointment of District
Government Counsel and renewal of their term is required to be made in
accordance with the provisions of LR Manual read with Section 24 Cr.P.C.
While renewing the term of the appointment of the existing incumbents
the State Government is required to consider their past performance and
conduct in the light of the recommendations made by the District Judges and
the District Magistrates.
Therefore, the High Court could not have issued a
mandamus for renewal of the term of respondent Nos. 1 and 2 and other
similarly situated persons and thereby frustrated the provisions of LR
Manual and Section 24 Cr.P.C.
21. In the premise aforesaid, the appeal is allowed and the impugned
order is set aside.
The State Government shall now fill up the existing
vacant posts by considering the cases of all eligible persons strictly in
accordance with the relevant provisions of LR Manual read with Section 24
Cr.P.C. and the judgments of this Court in Johri Mal’s case and Rakesh
Kumar Keshari’s case.
The District Judges and the District Magistrates, who
are required to be consulted by the State Government, are expected to make
objective assessment of the work, conduct and performance of the candidates
and make recommendations keeping in view larger public interest in
contradistinction to the interest of the particular political party.
22. The cases of renewal of appointment of the existing incumbent shall
likewise be considered in accordance with the provisions contained in LR
Manual and the judgments of this Court. This exercise shall be undertaken
and completed within a period of four months from today.
23. The Registry is directed to send a copy of this order to the
Registrar General of the Allahabad High Court who shall place the matter
before the Chief Justice of the High Court. The learned Chief Justice may
consider the desirability of posting all the matters before one Bench to
facilitate expeditious adjudication of the pending matters.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10290 OF 2013
(Arising out of SLP(C) No. 11834 of 2013)
State of U.P. and others
....Appellants
versus
Ajay Kumar Sharma and another ....Respondents
J U D G M E N T
G.S. SINGHVI, J.
1. Leave granted.
2. Legal Remembrancer’s Manual (for short, ‘LR Manual’) framed by the
Government of Uttar Pradesh and
Section 24 of the Code of Criminal
Procedure (Cr.P.C.) contain a comprehensive mechanism for appointment of
District Government Counsel for Civil, Criminal and Revenue Courts in the
State and renewal of their term.
However, from 1990 onwards these
provisions have become victim of the spoil system and have been misused by the party in power for conferring favours upon chosen advocates.
In last
21/2 decades the appointments and renewal or non-renewal of the term of
District Government Counsel and termination of their services generated
huge litigation, the disposal of which has consumed substantial time of the
Allahabad High Court and this Court.
3. In Kumari Shrilekha Vidyarthi v. State of U.P. (1991) 1 SCC 212,
this
Court declared as arbitrary and unconstitutional the State Government’s
decision to en masse terminate the appointment of District Government
Counsel in all the districts as a prelude to fresh appointments.
4. In State of U.P. v. Ramesh Chandra Sharma (1995) 6 SCC 527, this
Court interpreted paragraph 7.06(3) of the LR Manual and observed:
“In view of the clear provision in clause (3) of para 7.06 that the
‘appointment of any legal practitioner as a District Government
Counsel is only professional engagement’, it is difficult to
appreciate the submission for which sustenance is sought from the
provisions contained in the same Manual. The appointment being for a
fixed term and requiring express renewal in the manner provided in the
Manual, there is no basis to contend that it is not a professional
engagement of a legal practitioner but appointment to a post in
government service which continues till attaining the age of
superannuation. In the earlier decisions of this Court including
Shrilekha Vidyarthi, the appointment of District Government Counsel
under the Manual has been understood only as a professional engagement
of a legal practitioner. This contention is, therefore, rejected.”
5. In Harpal Singh Chauhan v. State of U.P. (1993) 3 SCC 552, this Court
analysed the provisions of LR Manual and observed:
“As already mentioned above, Section 24 of the Code does not speak
about the extension or renewal of the term of the Public Prosecutor or
Additional Public Prosecutor. But after the expiry of the term of the
appointment of persons concerned, it requires the same statutory
exercise, in which either new persons are appointed or those who have
been working as Public Prosecutor or Additional Public Prosecutor, are
again appointed by the State Government, for a fresh term. The
procedure prescribed in the Manual — to the extent it is not in
conflict with the provisions of Section 24 — shall be deemed to be
supplementing the statutory provisions. But merely because there is a
provision for extension or renewal of the term, the same cannot be
claimed as a matter of right.
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 a fair treatment
by the appointing authority or that the procedure prescribed in the
Code and in the Manual aforesaid, has 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.”
6. In State of U.P. v. Johri Mal (2004) 4 SCC 714, this Court (three
Judge Bench) considered the question
whether the respondent who had been
appointed as District Government Counsel (Criminal) at Meerut in January,
1993 was entitled to have the term of his appointment renewed. The Division
Bench of the High Court allowed the writ petition filed by the respondent
and directed the State Government to renew the term of his appointment.
This Court referred to the provisions of Section 24 of the Code of Criminal
Procedure and amendment made therein by the Government of Uttar Pradesh as
also LR Manual, some judicial precedents including Kumari Shrilekha
Vidyarthi v. State of U.P. (supra), Harpal Singh Chauhan v. State of U.P.
(supra), State of U.P. v. U.P. State Law Officers Association (1994) 2 SCC
204, State of U.P. v. Ramesh Chandra Sharma (supra) and made the following
significant observations about the nature of the office held by District
Government Counsel:
“The District Government Counsel appointed for conducting civil as
also criminal cases hold offices of great importance.
They are not
only officers of the court but also the representatives of the State.
The court reposes a great deal of confidence in them.
Their opinion in
a matter carries great weight. They are supposed to render
independent, fearless and non-partisan views before the court
irrespective of the result of litigation which may ensue.
The Public Prosecutors have greater responsibility.
They are required
to perform statutory duties independently having regard to various
provisions contained in the Code of Criminal Procedure and in
particular Section 320 thereof.
The Public Prosecutors and the Government Counsel play an important
role in administration of justice.
Efforts are required to be made to
improve the management of prosecution in order to increase the
certainty of conviction and punishment for most serious offenders and
repeaters.
The prosecutors should not be overburdened with too many
cases of widely varying degrees of seriousness with too few assistants
and inadequate financial resources.
The prosecutors are required to
play a significant role in the administration of justice by
prosecuting only those who should be prosecuted and releasing or
directing the use of non-punitive methods of treatment of those whose
cases would best be processed.
The District Government Counsel represent the State. They, thus,
represent the interest of the general public before a court of law.
The Public Prosecutors while presenting the prosecution case have a
duty to see that innocent persons may not be convicted as well as an
accused guilty of commission of crime does not go unpunished.
Maintenance of law and order in the society and, thus, to some extent
maintenance of rule of law which is the basic fibre for upholding the
rule of democracy lies in their hands.
The Government Counsel, thus,
must have character, competence, sufficient experience as also
standing at the Bar.
The need for employing meritorious and competent
persons to keep the standard of the high offices cannot be minimised.
The holders of the post have a public duty to perform. Public element
is, thus, involved therein.
In the matter of engagement of a District Government Counsel, however,
a concept of public office does not come into play.
However, it is
true that in the matter of counsel, the choice is that of the
Government and none can claim a right to be appointed. That must
necessarily be so because it is a position of great trust and
confidence.
The provision of Article 14, however, will be attracted to
a limited extent as the functionaries named in the Code of Criminal
Procedure are public functionaries.
They also have a public duty to
perform. If the State fails to discharge its public duty or acts in
defiance, deviation and departure of the principles of law, the court
may interfere.
The court may also interfere when the legal policy laid
down by the Government for the purpose of such appointments is
departed from or mandatory provisions of law are not complied with.
Judicial review can also be resorted to, if a holder of a public
office is sought to be removed for reason dehors the statute.”
The Court then considered
whether the High Court was right in issuing a
mandamus for renewal of the term of the respondent as District Government
Counsel (Criminal):
“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 lawyers concerned for
discharging their duties, the District Magistrate is supposed to know
their conduct outside the court vis-à-vis the victims of offences,
public officers, witnesses, etc. The District Magistrate is also
supposed to know about the conduct of the Government Counsel as also
their integrity.
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. 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
the Legal Remembrancer’s 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.
The State should bear in mind the dicta of this Court in Mundrika
Prasad Singh as regards 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.”
7. The aforesaid judgment was followed by a two Judge Bench in State of
U.P. v. Rakesh Kumar Keshari (2011) 5 SCC 341 and it was held that the
respondent was not entitled to claim renewal of his term as of right.
Paragraphs 32 to 36 of that judgment read as under:
“32. This Court in Johri Mal case further held that the L.R. Manual
contains executive instructions and is not law within the meaning of
Article 13. After emphasising that a Public Prosecutor is not only
required to show his professional competence but is also required to
discharge certain administrative functions, it is held that the
respondent therein had no effective control over ADGCs for taking
steps and therefore action on the part of the State was not wholly
without jurisdiction requiring interference by the High Court in
exercise of its power of judicial review while setting aside the
direction given by the High Court to constitute the five-member
collegium headed by the District Judge to make recommendation for
appointment to the post of DGC (Criminal), this Court had to take
pains to explain to all concerned that the appointment of the District
Government Counsel cannot be equated with the appointments of the High
Court and the Supreme Court Judges and a distinction must be made
between professional engagement and a holder of high public office.
33. This Court has explained that various doctrines and the provisions
of the Constitution which impelled the Supreme Court in Special
Reference case, to give the meaning of “consultation” as “concurrence”
and wherein the Chief Justice of India will have a primacy, cannot be
held to be applicable in the matter of consultation between the
District Magistrate and the District Judge for the purpose of
preparation of a panel of the District Government Counsel.
34. Applying the principles of law laid down by this Court in the
above quoted decision, this Court finds that the decision of the State
Government not to accept the recommendation made by the District
Magistrate cannot be said to be arbitrary. There is no manner of doubt
that the ADGC (Criminal) are not only officers of the court but also
the representatives of the State. They represent the interest of the
general public before a court of law. The holders of the post have a
public duty to perform. However, in the matter of engagement of ADGC
(Criminal) the concept of public office does not come into play. The
choice is that of the Government and none can claim a right to be
appointed because it is a position of great trust and confidence.
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.
35. This position is again made clear in an unreported decision of
this Court dated 11-11-2010 rendered in Civil Appeal No. 3785 of 2003.
In the said case the State of U.P. by its order dated 3-6-2002 had
rejected the request of the respondent Satyavrat Singh for renewal of
the extension of his term as a District Government Counsel (Criminal).
The respondent had challenged the same in the writ petition. The
Allahabad High Court had quashed the order 3-6-2002 refusing renewal
of the term of the respondent as a District Government Counsel
(Criminal) and had directed the State Government to renew the term of
the respondent as Government Counsel. While allowing the appeal filed
by the State Government this Court has held as under:
“It is difficult to discern as to how the High Court has upheld
the unstatable proposition advanced by the respondent for
extension of his term as Government Counsel. We wish to say no
more in this matter since the subject-matter that arises for our
consideration is squarely covered by the decision of this Court
in State of U.P. v. Johri Mal. This Court took the view that in
the matter of engagement of a District Government Counsel, a
concept of public office does not come into play. The choice of
a counsel is for the Government and none can claim a right to be
a counsel. There is no right for appointment of a Government
Counsel.
The High Court has committed a grave error in renewing the
appointment of the respondent as Government Counsel.
Needless to state that the High Court in exercise of its
jurisdiction under Article 226 of the Constitution of India
cannot compel the State to utilise the services of an advocate
irrespective of its choice. It is for the State to select its
own counsel.
The impugned order of the High Court is set aside. The appeal is
accordingly, allowed.”
36. Thus it was not open to the respondents to file writ petition
under Article 226 of the Constitution for compelling the appellants to
utilise their services as advocates irrespective of choice of the
State. It was for the State to select its own counsel. In view of the
poor performance of the respondents in handling/conducting criminal
cases, this Court is of the opinion that the High Court committed a
grave error in giving direction to the District Magistrate to forward
better particulars of 10 candidates whose names were included in the
two panels prepared pursuant to the advertisement dated 16-1-2004 and
in setting aside the order dated 7-9-2004 of the Principal Secretary
to the Chief Minister, U.P. calling upon the District Magistrate to
send another panel/list for appointment to the two posts of ADGC
(Criminal).”
(emphasis added)
8. In the meanwhile, the State Government issued order dated 13.8.2008
by which LR Manual was amended and the requirement of consultation with
District Judge in the matter of appointment of District Government Counsel
was deleted. That order was challenged before the High Court in W.P. (C)
No.7851/2008 and a batch of more than 100 writ petitions. The same were
disposed of by a Division Bench of the High Court vide order dated
6.1.2012, the operative portion of which reads as under:
“253. (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.l 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.l 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 Counsel or Addl. District Government Counsel 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.”
Similar writ petitions were disposed of by the High Court vide orders dated
11.1.2012, 12.1.2012 and 9.2.2012 by adopting the reasons contained in
order dated 6.1.2012.
9. The State of Uttar Pradesh challenged the aforesaid orders in SLP(C)
Nos.4042-4043/2012 – State of U.P. and others v. Sadhna Sharma and batch
matters. At the hearing of the special leave petitions, a statement was
made on behalf of the State Government that it has taken a policy decision
to implement the High Court’s order and not to press the matter pending
before this Court. In view of the statement made on behalf of the State
Government, this Court disposed of the special leave petitions vide order
dated 17.7.2012 (revised), the relevant portions of which are reproduced
below:
“We may notice that the primary contention raised before us is not
with regard to the constitutional validity or otherwise of the amended
provisions of the Criminal Procedure Code but the contention is that
the State Government despite its policy decision is not implementing
the judgment of the High Court in its true spirit and substance. To
substantiate such a plea, the argument is that the High Court had
specifically directed in Clause (15) in para 248 as well as Clauses
(2) & (4) in para 253 (operative part of the judgment) that the cases
of the persons in position should be reconsidered in accordance with
the provisions contained in the L.R. Manual as well as that the
District Government Counsel could not be removed even under existing
L.R. Manual without considering their case for renewal.
To the contra, the argument raised before the High Court is that this
clause is applicable only to that class of persons and not to the
private respondents before the High Courts and appellants herein.
Since there is unanimity of the view that the judgment of the High
Court is required to be implemented in true spirit and substance, we
consider it necessary to issue certain clarifications with regard to
the judgment in question and despite the fact that the State
Government has chosen to withdraw the Special Leave Petition against
the judgment and has taken a policy decision to implement the same.
The directions are:-
(1) In terms of the above referred clauses of the judgment of
the High Court, the vacancies which have already been filled in
accordance with Section 24 of the Criminal Procedure Code and
certain provisions of the L.R. Manual and unamended provisions
of the Criminal Procedure Code. To be more specific, i.e., the
appointments which have been made in consultation with the High
Court and/or the District and Sessions Judge of the respective
district and who continue to function in the respective posts
shall not be disturbed.
(2) Against the existing vacancies the cases of all the
appellants herein, who are in service or are out of service as
well as any of the petitioners before the High Courts, whose
services were terminated at any point of time including the
persons who had filed writ petitions in the High Court during
the pendency of the writ petition and/or the present civil
appeals shall be considered for renewal / reconsideration in
accordance with the judgment of this Court within a period of
three months from today.
(3) For implementation of these directions the Secretary,
Department of Law and Justice, State Government, shall be
personally responsible and should complete the exercise within
the stipulated period to ensure that required number of public
prosecutors are present in the Courts for expeditious disposal
of cases.
The renewal/reconsideration/appointment shall be done by the concerned
authority in the above manner. We would clarify that all the
appointments either directly or by way of renewal / reconsideration
shall only be made in consultation with the High Court and/or the
District and Sessions Judges as the case may be. All concerned shall
duly abide, and without default, with the process of selection and
appointment, as afore-stated.”
10. Some of the existing incumbents, whose appointments were not renewed,
filed Writ Petition Nos. 6069/2012 and 6233/2012 before the High Court. The
same were disposed of in terms of order dated 17.7.2012 passed by this
Court in SLP(C) Nos.4042-4043/2012 and batch matters.
11. In State of Uttar Pradesh v. Ashok Kumar Nigam (2013) 3 SCC 372, a
two Judge Bench of this Court referred to paragraphs 7.06 and 7.08 of LR
Manual and held that order dated 3.4.2008 passed by the State Government
refusing to renew the appointment of the respondent was vitiated due to non-
application of mind. At the same time, the two Judge Bench made it clear
that the High Court could not have directed appointment while regulating
the age of the appointees. Paragraphs 20 and 21 of that judgment are as
under:
“20. The order dated 3-4-2008, 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 a 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 up to 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.
21. Thus, for the above-recorded reasons, while declining to interfere
with 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.”
(emphasis added)
12. In the purported compliance of the directions given by the High Court
and this Court, the State Government considered the cases of respondent
Nos.1 and 2 and others for renewal of their appointments as District
Government Counsel but rejected the same vide orders dated 22.10.2012 and
26.10.2012. Respondent Nos.1 and 2 challenged those orders in Writ Petition
(M/B) No.9127/2012 filed before the High Court. They also prayed for issue
of a mandamus commanding the opposite parties (the appellants herein) to
allow them to continue as District Government Counsel and renew the term of
their appointment as per the recommendations of District Judges. Similar
writ petitions were filed by others whose appointments had not been
renewed.
13. On 7.12.2012, the Division Bench of the High Court passed the
following order:
“We have heard learned counsel for parties and perused the pleadings
of writ petition.
Learned Advocate General, State of U.P. submitted that he will
personally look into the files of all the orders which are impugned in
this Bunch of writ petitions.
According to learned Advocate General the legal position as
decipherable from the judgments of Hon'ble the Apex Court in such
cases as the one in hand of the bunch is that there is a duty cast
upon the State to examine and assess the performance and records of
candidates dispassionately but there is no corresponding right in
their favour to claim appointments or renewal of appointments. Thus,
according to him there would be no ambiguity in dealing with these
matters during the course of exercise to be undertaken by the
Administrative Department.
It would not be out of place to observe that in the order passed
earlier, this Court has only reiterated the directions as given by the
Hon'ble Apex Court.
Besides, the State must also remember that the Special Leave Petition
filed by it against the judgment of coordinate Bench has been
withdrawn and thus the State has accepted the verdict, which, inter-
alia, provides for the primacy of opinion of learned District Judge.
None-the-less, District Judges are also expected not to record their
opinions without obtaining opinions of courts where the candidates
have worked as Government pleaders and so should also be in the case
of District Magistrates concerned in order to provide independent
views on the basis of materials on record.
At this stage, learned Advocate General prays for and is granted
adjournment till 16.01.2013 to ensure exercise in terms of the
judgments and orders of Hon'ble the Apex Court as well as this High
Court before the next date of hearing.
List this matters on 16.01.2013 along with Writ Petition Nos. 9992
(M/B) of 2012, 10134 (M/B) of 2012, 10144 (M/B) of 2012, 10152 (M/B)
of 2012, 10153 (M/B) of 2012, 10154 (M/B) of 2012, 10155 (M/B) of
2012, 10156 (M/B) of 2012, 10157 (M/B) of 2012, 10169 (M/B) of 2012,
10178 (M/B) of 2012, 10179 (M/B) of 2012, 10185 (M/B) of 2012, 10188
(M/B) of 2012, 9970 (M/B) of 2012, 10040 (M/B) of 2012, 10054 (M/B) of
2012, 10055 (M/B) of 2012, 10064 (M/B) of 2012, 10069 (M/B) of 2012,
10074 (M/B) of 2012, 10075 (M/B) of 2012, 10077 (M/B) of 2012, 10078
(M/B) of 2012, 10083 (M/B) of 2012, 10085 (M/B) of 2012, 10088 (M/B)
of 2012, 10089 (M/B) of 2012, 10106 (M/B) of 2012, 10107 (M/B) of
2012, 10120 (M/B) of 2012, 10127 (M/B) of 2012, 10128 (M/B) of 2012,
10130 (M/B) of 2012, 10133 (M/B) of 2012 and 10999 (M/B) of 2012.
In the meantime, the Department of Law may also complete the exercise
by undertaking independent examination of records as required of it in
such cases where independent views of District Judges and District
Magistrates are available, in the light of observations made
hereinabove in order to expedite the process of renewal and
appointment but it shall not issue any fresh appointment letter.”
(reproduced from the appeal paper book)
14. In compliance of the direction contained in the aforesaid order of
the High Court, the State Government is said to have scrutinized some
records and filed status report. On the next date of hearing, i.e.,
7.3.2013, the Additional Advocate General appearing for the appellants
herein informed the High Court that complete status report could not be
filed due to non-availability of documents. The Division Bench of the High
Court accepted her request for adjournment and posted the matter for
20.3.2013. Simultaneously, the appellants were directed to issue orders for
renewal in the cases where the details of the applicants were available.
15. The appellants have questioned the High Court’s order primarily on
the ground that the same is contrary to the law laid down by the larger
Bench in State of U.P. v. Johri Mal (supra). According to the appellants,
order passed by this Court in SLP(C) Nos. 4042-4043/2012 is per incuriam
because the same is contrary to the ratio of the judgment of the larger
Bench. Another contention of the appellants is that appointment of District
Government Counsel and Additional District Government Counsel and renewal
of their term can be made only after making evaluation of their work and
conduct keeping in view their past performance and the High Court could not
have issued an interim mandamus for renewal of the term of the private
respondents.
16. Before proceeding further, we may mention that in compliance of the
directions given by this Court on 26.8.2013, 2.9.2013 and 5.9.2013, Shri
S.K. Pandey, Principal Secretary (Law)/Legal Remembrancer, Government of
Uttar Pradesh filed affidavits dated 1.9.2013 and 8.9.2013. For the sake of
reference, paragraphs 2 and 3 of the first affidavit and paragraph 2 of the
second affidavit are extracted below:
“First Affidavit dated 1.9.2013
2. That the present petition arises out of the Writ Petition (Misc.
Bench) No. 9127 of 2012 along with which there are 248 petitions
pending before the Lucknow Bench of the Allahabad High Court and in
the said total 249 Writ Petitions, there are total 443 claimants for
their renewal for the post of District Government Counsel / Additional
District Government Counsel / Assistant District Government Counsel,
etc. for three different categories (Criminal, Civil and Revenue). In
addition to the above 443 claimants, after 16.01.2013 further about 85
Writ Petitions have been filed claiming renewals and reappointments on
the basis of earlier appointments and in the said Writ Petitions also
there are about 200 claimants there by making total about 643
claimant. Contrary to the said claim of renewals of so many candidates
whose report of District Judge are favourable, the number of available
vacancies are only 354. Most of the reports of the Districts Judges
are stating that their work and conduct are good and they have
knowledge of law. None of the reports say any adverse comment or
anything which could be deemed to be dereliction of duty. There are
many instances where the candidature for renewal have been recommended
by the District judge with identically worded recommendations even
when the record bears out that the candidate's performance has
remained lacking.
3. That in the first batch of total 443 claimants, 430 writ
petitioners are those who had been appointed at the time when the
amendment to L.R. Manual had taken place on 13.08.2008. There are only
13 petitioners renewals who had been appointed in terms of the un-
amended L.R. Manual (existing as on today).”
Second Affidavit dated 8.9.2013
“2. It is submitted that the cases of all the eligible persons shall
be considered against the available vacant posts strictly in
consultation with the District Judge(s) and District Magistrate(s).”
17. Respondent Nos.1 and 2 have filed counter to the first affidavit to
controvert the statement of the Law Secretary and accused the appellants of
trying to mislead the Court. They have also relied upon the judgment of
this Court in State of Uttar Pradesh v. Ashok Kumar Nigam (supra) and
pleaded that in view of the favourable recommendations made by the District
Judges and the District Magistrates, the State Government is obliged to
renew their appointments.
18. While Shri Harish N. Salve, learned senior counsel appearing for the
appellants argued that the order under challenge should be set aside being
contrary to the law laid down by this Court in Johri Mal’s case and Rakesh
Kumar Keshari’s case and the State Government should be allowed to consider
the candidature of all eligible persons for appointment against the
available vacancies in consultation with the District Judges and District
Magistrates, Shri Aman Lekhi, learned senior counsel appearing for the
respondent Nos. 1 and 2 argued that this Court should not interfere with
the impugned order because the direction given by the High Court is in
consonance with order dated 6.1.2012 passed by the High Court and the
clarifications given by this Court on 17.7.2012. Shri Lekhi criticized the
affidavits of the Law Secretary and submitted that the officer has tried to
mislead this Court on the issue of number of available vacant posts.
Learned senior counsel further argued that respondent Nos.1 and 2 and other
similarly situated persons are entitled to have the term of their
appointment renewed because the District Judge and the District Magistrate
have not found anything adverse qua their conduct and performance.
19. We have given serious thought to the entire matter. About 100 writ
petitions with prayer similar to those contained in Writ Petition
No.9127/2012 are pending before the High Court. The question
whether the
existing District Government Counsel and Additional District Government
Counsel are entitled to renewal of their term as of right or the State
Government is required to act in consonance with paragraph 7.08 of the LR
Manual and the judgments of this Court in Johri Mal’s case and Rakesh Kumar
Keshari’s case, is yet to be decided. Therefore, the Division Bench of the
High Court was not at all justified in issuing an interim mandamus for
renewal of the appointments of respondent Nos. 1 and 2. While doing so, the
High Court ignored the law laid down in Ramesh Chandra Sharma’s case,
Harpal Singh Chauhan’s case, Johri Mal’s case and Rakesh Kumar Keshari’s
case as also Ashok Kumar Nigam’s case, that appointment of District
Government Counsel and renewal of their term is required to be made in
accordance with the provisions of LR Manual read with Section 24 Cr.P.C.
20. While renewing the term of the appointment of the existing incumbents
the State Government is required to consider their past performance and
conduct in the light of the recommendations made by the District Judges and
the District Magistrates.
Therefore, the High Court could not have issued a
mandamus for renewal of the term of respondent Nos. 1 and 2 and other
similarly situated persons and thereby frustrated the provisions of LR
Manual and Section 24 Cr.P.C.
21. In the premise aforesaid, the appeal is allowed and the impugned
order is set aside.
The State Government shall now fill up the existing
vacant posts by considering the cases of all eligible persons strictly in
accordance with the relevant provisions of LR Manual read with Section 24
Cr.P.C. and the judgments of this Court in Johri Mal’s case and Rakesh
Kumar Keshari’s case.
The District Judges and the District Magistrates, who
are required to be consulted by the State Government, are expected to make
objective assessment of the work, conduct and performance of the candidates
and make recommendations keeping in view larger public interest in
contradistinction to the interest of the particular political party.
22. The cases of renewal of appointment of the existing incumbent shall
likewise be considered in accordance with the provisions contained in LR
Manual and the judgments of this Court. This exercise shall be undertaken
and completed within a period of four months from today.
23. The Registry is directed to send a copy of this order to the
Registrar General of the Allahabad High Court who shall place the matter
before the Chief Justice of the High Court. The learned Chief Justice may
consider the desirability of posting all the matters before one Bench to
facilitate expeditious adjudication of the pending matters.
......………………………..….J.
[G.S. SINGHVI]
New Delhi, ...….……..…..………………..J.
November 13, 2013. [C. NAGAPPAN]
-----------------------
20
Government of Uttar Pradesh and
Section 24 of the Code of Criminal
Procedure (Cr.P.C.) whether the respondent who had been
appointed as District Government Counsel (Criminal) at Meerut in January,
1993 was entitled to have the term of his appointment renewed. - No =
Legal Remembrancer’s Manual (for short, ‘LR Manual’) framed by the
Government of Uttar Pradesh and
Section 24 of the Code of Criminal
Procedure (Cr.P.C.) contain a comprehensive mechanism for appointment of
District Government Counsel for Civil, Criminal and Revenue Courts in the
State and renewal of their term.
However, from 1990 onwards these
provisions have become victim of the spoil system and have been misused by the party in power for conferring favours upon chosen advocates. =
whether the
existing District Government Counsel and Additional District Government
Counsel are entitled to renewal of their term as of right or the State
Government is required to act in consonance with paragraph 7.08 of the LR
Manual and the judgments of this Court in Johri Mal’s case and Rakesh Kumar
Keshari’s case, is yet to be decided. Therefore, the Division Bench of the
High Court was not at all justified in issuing an interim mandamus for
renewal of the appointments of respondent Nos. 1 and 2. While doing so, the
High Court ignored the law laid down in Ramesh Chandra Sharma’s case,
Harpal Singh Chauhan’s case, Johri Mal’s case and Rakesh Kumar Keshari’s
case as also Ashok Kumar Nigam’s case, that appointment of District
Government Counsel and renewal of their term is required to be made in
accordance with the provisions of LR Manual read with Section 24 Cr.P.C.
While renewing the term of the appointment of the existing incumbents
the State Government is required to consider their past performance and
conduct in the light of the recommendations made by the District Judges and
the District Magistrates.
Therefore, the High Court could not have issued a
mandamus for renewal of the term of respondent Nos. 1 and 2 and other
similarly situated persons and thereby frustrated the provisions of LR
Manual and Section 24 Cr.P.C.
21. In the premise aforesaid, the appeal is allowed and the impugned
order is set aside.
The State Government shall now fill up the existing
vacant posts by considering the cases of all eligible persons strictly in
accordance with the relevant provisions of LR Manual read with Section 24
Cr.P.C. and the judgments of this Court in Johri Mal’s case and Rakesh
Kumar Keshari’s case.
The District Judges and the District Magistrates, who
are required to be consulted by the State Government, are expected to make
objective assessment of the work, conduct and performance of the candidates
and make recommendations keeping in view larger public interest in
contradistinction to the interest of the particular political party.
22. The cases of renewal of appointment of the existing incumbent shall
likewise be considered in accordance with the provisions contained in LR
Manual and the judgments of this Court. This exercise shall be undertaken
and completed within a period of four months from today.
23. The Registry is directed to send a copy of this order to the
Registrar General of the Allahabad High Court who shall place the matter
before the Chief Justice of the High Court. The learned Chief Justice may
consider the desirability of posting all the matters before one Bench to
facilitate expeditious adjudication of the pending matters.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10290 OF 2013
(Arising out of SLP(C) No. 11834 of 2013)
State of U.P. and others
....Appellants
versus
Ajay Kumar Sharma and another ....Respondents
J U D G M E N T
G.S. SINGHVI, J.
1. Leave granted.
2. Legal Remembrancer’s Manual (for short, ‘LR Manual’) framed by the
Government of Uttar Pradesh and
Section 24 of the Code of Criminal
Procedure (Cr.P.C.) contain a comprehensive mechanism for appointment of
District Government Counsel for Civil, Criminal and Revenue Courts in the
State and renewal of their term.
However, from 1990 onwards these
provisions have become victim of the spoil system and have been misused by the party in power for conferring favours upon chosen advocates.
In last
21/2 decades the appointments and renewal or non-renewal of the term of
District Government Counsel and termination of their services generated
huge litigation, the disposal of which has consumed substantial time of the
Allahabad High Court and this Court.
3. In Kumari Shrilekha Vidyarthi v. State of U.P. (1991) 1 SCC 212,
this
Court declared as arbitrary and unconstitutional the State Government’s
decision to en masse terminate the appointment of District Government
Counsel in all the districts as a prelude to fresh appointments.
4. In State of U.P. v. Ramesh Chandra Sharma (1995) 6 SCC 527, this
Court interpreted paragraph 7.06(3) of the LR Manual and observed:
“In view of the clear provision in clause (3) of para 7.06 that the
‘appointment of any legal practitioner as a District Government
Counsel is only professional engagement’, it is difficult to
appreciate the submission for which sustenance is sought from the
provisions contained in the same Manual. The appointment being for a
fixed term and requiring express renewal in the manner provided in the
Manual, there is no basis to contend that it is not a professional
engagement of a legal practitioner but appointment to a post in
government service which continues till attaining the age of
superannuation. In the earlier decisions of this Court including
Shrilekha Vidyarthi, the appointment of District Government Counsel
under the Manual has been understood only as a professional engagement
of a legal practitioner. This contention is, therefore, rejected.”
5. In Harpal Singh Chauhan v. State of U.P. (1993) 3 SCC 552, this Court
analysed the provisions of LR Manual and observed:
“As already mentioned above, Section 24 of the Code does not speak
about the extension or renewal of the term of the Public Prosecutor or
Additional Public Prosecutor. But after the expiry of the term of the
appointment of persons concerned, it requires the same statutory
exercise, in which either new persons are appointed or those who have
been working as Public Prosecutor or Additional Public Prosecutor, are
again appointed by the State Government, for a fresh term. The
procedure prescribed in the Manual — to the extent it is not in
conflict with the provisions of Section 24 — shall be deemed to be
supplementing the statutory provisions. But merely because there is a
provision for extension or renewal of the term, the same cannot be
claimed as a matter of right.
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 a fair treatment
by the appointing authority or that the procedure prescribed in the
Code and in the Manual aforesaid, has 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.”
6. In State of U.P. v. Johri Mal (2004) 4 SCC 714, this Court (three
Judge Bench) considered the question
whether the respondent who had been
appointed as District Government Counsel (Criminal) at Meerut in January,
1993 was entitled to have the term of his appointment renewed. The Division
Bench of the High Court allowed the writ petition filed by the respondent
and directed the State Government to renew the term of his appointment.
This Court referred to the provisions of Section 24 of the Code of Criminal
Procedure and amendment made therein by the Government of Uttar Pradesh as
also LR Manual, some judicial precedents including Kumari Shrilekha
Vidyarthi v. State of U.P. (supra), Harpal Singh Chauhan v. State of U.P.
(supra), State of U.P. v. U.P. State Law Officers Association (1994) 2 SCC
204, State of U.P. v. Ramesh Chandra Sharma (supra) and made the following
significant observations about the nature of the office held by District
Government Counsel:
“The District Government Counsel appointed for conducting civil as
also criminal cases hold offices of great importance.
They are not
only officers of the court but also the representatives of the State.
The court reposes a great deal of confidence in them.
Their opinion in
a matter carries great weight. They are supposed to render
independent, fearless and non-partisan views before the court
irrespective of the result of litigation which may ensue.
The Public Prosecutors have greater responsibility.
They are required
to perform statutory duties independently having regard to various
provisions contained in the Code of Criminal Procedure and in
particular Section 320 thereof.
The Public Prosecutors and the Government Counsel play an important
role in administration of justice.
Efforts are required to be made to
improve the management of prosecution in order to increase the
certainty of conviction and punishment for most serious offenders and
repeaters.
The prosecutors should not be overburdened with too many
cases of widely varying degrees of seriousness with too few assistants
and inadequate financial resources.
The prosecutors are required to
play a significant role in the administration of justice by
prosecuting only those who should be prosecuted and releasing or
directing the use of non-punitive methods of treatment of those whose
cases would best be processed.
The District Government Counsel represent the State. They, thus,
represent the interest of the general public before a court of law.
The Public Prosecutors while presenting the prosecution case have a
duty to see that innocent persons may not be convicted as well as an
accused guilty of commission of crime does not go unpunished.
Maintenance of law and order in the society and, thus, to some extent
maintenance of rule of law which is the basic fibre for upholding the
rule of democracy lies in their hands.
The Government Counsel, thus,
must have character, competence, sufficient experience as also
standing at the Bar.
The need for employing meritorious and competent
persons to keep the standard of the high offices cannot be minimised.
The holders of the post have a public duty to perform. Public element
is, thus, involved therein.
In the matter of engagement of a District Government Counsel, however,
a concept of public office does not come into play.
However, it is
true that in the matter of counsel, the choice is that of the
Government and none can claim a right to be appointed. That must
necessarily be so because it is a position of great trust and
confidence.
The provision of Article 14, however, will be attracted to
a limited extent as the functionaries named in the Code of Criminal
Procedure are public functionaries.
They also have a public duty to
perform. If the State fails to discharge its public duty or acts in
defiance, deviation and departure of the principles of law, the court
may interfere.
The court may also interfere when the legal policy laid
down by the Government for the purpose of such appointments is
departed from or mandatory provisions of law are not complied with.
Judicial review can also be resorted to, if a holder of a public
office is sought to be removed for reason dehors the statute.”
The Court then considered
whether the High Court was right in issuing a
mandamus for renewal of the term of the respondent as District Government
Counsel (Criminal):
“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 lawyers concerned for
discharging their duties, the District Magistrate is supposed to know
their conduct outside the court vis-à-vis the victims of offences,
public officers, witnesses, etc. The District Magistrate is also
supposed to know about the conduct of the Government Counsel as also
their integrity.
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. 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
the Legal Remembrancer’s 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.
The State should bear in mind the dicta of this Court in Mundrika
Prasad Singh as regards 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.”
7. The aforesaid judgment was followed by a two Judge Bench in State of
U.P. v. Rakesh Kumar Keshari (2011) 5 SCC 341 and it was held that the
respondent was not entitled to claim renewal of his term as of right.
Paragraphs 32 to 36 of that judgment read as under:
“32. This Court in Johri Mal case further held that the L.R. Manual
contains executive instructions and is not law within the meaning of
Article 13. After emphasising that a Public Prosecutor is not only
required to show his professional competence but is also required to
discharge certain administrative functions, it is held that the
respondent therein had no effective control over ADGCs for taking
steps and therefore action on the part of the State was not wholly
without jurisdiction requiring interference by the High Court in
exercise of its power of judicial review while setting aside the
direction given by the High Court to constitute the five-member
collegium headed by the District Judge to make recommendation for
appointment to the post of DGC (Criminal), this Court had to take
pains to explain to all concerned that the appointment of the District
Government Counsel cannot be equated with the appointments of the High
Court and the Supreme Court Judges and a distinction must be made
between professional engagement and a holder of high public office.
33. This Court has explained that various doctrines and the provisions
of the Constitution which impelled the Supreme Court in Special
Reference case, to give the meaning of “consultation” as “concurrence”
and wherein the Chief Justice of India will have a primacy, cannot be
held to be applicable in the matter of consultation between the
District Magistrate and the District Judge for the purpose of
preparation of a panel of the District Government Counsel.
34. Applying the principles of law laid down by this Court in the
above quoted decision, this Court finds that the decision of the State
Government not to accept the recommendation made by the District
Magistrate cannot be said to be arbitrary. There is no manner of doubt
that the ADGC (Criminal) are not only officers of the court but also
the representatives of the State. They represent the interest of the
general public before a court of law. The holders of the post have a
public duty to perform. However, in the matter of engagement of ADGC
(Criminal) the concept of public office does not come into play. The
choice is that of the Government and none can claim a right to be
appointed because it is a position of great trust and confidence.
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.
35. This position is again made clear in an unreported decision of
this Court dated 11-11-2010 rendered in Civil Appeal No. 3785 of 2003.
In the said case the State of U.P. by its order dated 3-6-2002 had
rejected the request of the respondent Satyavrat Singh for renewal of
the extension of his term as a District Government Counsel (Criminal).
The respondent had challenged the same in the writ petition. The
Allahabad High Court had quashed the order 3-6-2002 refusing renewal
of the term of the respondent as a District Government Counsel
(Criminal) and had directed the State Government to renew the term of
the respondent as Government Counsel. While allowing the appeal filed
by the State Government this Court has held as under:
“It is difficult to discern as to how the High Court has upheld
the unstatable proposition advanced by the respondent for
extension of his term as Government Counsel. We wish to say no
more in this matter since the subject-matter that arises for our
consideration is squarely covered by the decision of this Court
in State of U.P. v. Johri Mal. This Court took the view that in
the matter of engagement of a District Government Counsel, a
concept of public office does not come into play. The choice of
a counsel is for the Government and none can claim a right to be
a counsel. There is no right for appointment of a Government
Counsel.
The High Court has committed a grave error in renewing the
appointment of the respondent as Government Counsel.
Needless to state that the High Court in exercise of its
jurisdiction under Article 226 of the Constitution of India
cannot compel the State to utilise the services of an advocate
irrespective of its choice. It is for the State to select its
own counsel.
The impugned order of the High Court is set aside. The appeal is
accordingly, allowed.”
36. Thus it was not open to the respondents to file writ petition
under Article 226 of the Constitution for compelling the appellants to
utilise their services as advocates irrespective of choice of the
State. It was for the State to select its own counsel. In view of the
poor performance of the respondents in handling/conducting criminal
cases, this Court is of the opinion that the High Court committed a
grave error in giving direction to the District Magistrate to forward
better particulars of 10 candidates whose names were included in the
two panels prepared pursuant to the advertisement dated 16-1-2004 and
in setting aside the order dated 7-9-2004 of the Principal Secretary
to the Chief Minister, U.P. calling upon the District Magistrate to
send another panel/list for appointment to the two posts of ADGC
(Criminal).”
(emphasis added)
8. In the meanwhile, the State Government issued order dated 13.8.2008
by which LR Manual was amended and the requirement of consultation with
District Judge in the matter of appointment of District Government Counsel
was deleted. That order was challenged before the High Court in W.P. (C)
No.7851/2008 and a batch of more than 100 writ petitions. The same were
disposed of by a Division Bench of the High Court vide order dated
6.1.2012, the operative portion of which reads as under:
“253. (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.l 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.l 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 Counsel or Addl. District Government Counsel 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.”
Similar writ petitions were disposed of by the High Court vide orders dated
11.1.2012, 12.1.2012 and 9.2.2012 by adopting the reasons contained in
order dated 6.1.2012.
9. The State of Uttar Pradesh challenged the aforesaid orders in SLP(C)
Nos.4042-4043/2012 – State of U.P. and others v. Sadhna Sharma and batch
matters. At the hearing of the special leave petitions, a statement was
made on behalf of the State Government that it has taken a policy decision
to implement the High Court’s order and not to press the matter pending
before this Court. In view of the statement made on behalf of the State
Government, this Court disposed of the special leave petitions vide order
dated 17.7.2012 (revised), the relevant portions of which are reproduced
below:
“We may notice that the primary contention raised before us is not
with regard to the constitutional validity or otherwise of the amended
provisions of the Criminal Procedure Code but the contention is that
the State Government despite its policy decision is not implementing
the judgment of the High Court in its true spirit and substance. To
substantiate such a plea, the argument is that the High Court had
specifically directed in Clause (15) in para 248 as well as Clauses
(2) & (4) in para 253 (operative part of the judgment) that the cases
of the persons in position should be reconsidered in accordance with
the provisions contained in the L.R. Manual as well as that the
District Government Counsel could not be removed even under existing
L.R. Manual without considering their case for renewal.
To the contra, the argument raised before the High Court is that this
clause is applicable only to that class of persons and not to the
private respondents before the High Courts and appellants herein.
Since there is unanimity of the view that the judgment of the High
Court is required to be implemented in true spirit and substance, we
consider it necessary to issue certain clarifications with regard to
the judgment in question and despite the fact that the State
Government has chosen to withdraw the Special Leave Petition against
the judgment and has taken a policy decision to implement the same.
The directions are:-
(1) In terms of the above referred clauses of the judgment of
the High Court, the vacancies which have already been filled in
accordance with Section 24 of the Criminal Procedure Code and
certain provisions of the L.R. Manual and unamended provisions
of the Criminal Procedure Code. To be more specific, i.e., the
appointments which have been made in consultation with the High
Court and/or the District and Sessions Judge of the respective
district and who continue to function in the respective posts
shall not be disturbed.
(2) Against the existing vacancies the cases of all the
appellants herein, who are in service or are out of service as
well as any of the petitioners before the High Courts, whose
services were terminated at any point of time including the
persons who had filed writ petitions in the High Court during
the pendency of the writ petition and/or the present civil
appeals shall be considered for renewal / reconsideration in
accordance with the judgment of this Court within a period of
three months from today.
(3) For implementation of these directions the Secretary,
Department of Law and Justice, State Government, shall be
personally responsible and should complete the exercise within
the stipulated period to ensure that required number of public
prosecutors are present in the Courts for expeditious disposal
of cases.
The renewal/reconsideration/appointment shall be done by the concerned
authority in the above manner. We would clarify that all the
appointments either directly or by way of renewal / reconsideration
shall only be made in consultation with the High Court and/or the
District and Sessions Judges as the case may be. All concerned shall
duly abide, and without default, with the process of selection and
appointment, as afore-stated.”
10. Some of the existing incumbents, whose appointments were not renewed,
filed Writ Petition Nos. 6069/2012 and 6233/2012 before the High Court. The
same were disposed of in terms of order dated 17.7.2012 passed by this
Court in SLP(C) Nos.4042-4043/2012 and batch matters.
11. In State of Uttar Pradesh v. Ashok Kumar Nigam (2013) 3 SCC 372, a
two Judge Bench of this Court referred to paragraphs 7.06 and 7.08 of LR
Manual and held that order dated 3.4.2008 passed by the State Government
refusing to renew the appointment of the respondent was vitiated due to non-
application of mind. At the same time, the two Judge Bench made it clear
that the High Court could not have directed appointment while regulating
the age of the appointees. Paragraphs 20 and 21 of that judgment are as
under:
“20. The order dated 3-4-2008, 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 a 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 up to 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.
21. Thus, for the above-recorded reasons, while declining to interfere
with 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.”
(emphasis added)
12. In the purported compliance of the directions given by the High Court
and this Court, the State Government considered the cases of respondent
Nos.1 and 2 and others for renewal of their appointments as District
Government Counsel but rejected the same vide orders dated 22.10.2012 and
26.10.2012. Respondent Nos.1 and 2 challenged those orders in Writ Petition
(M/B) No.9127/2012 filed before the High Court. They also prayed for issue
of a mandamus commanding the opposite parties (the appellants herein) to
allow them to continue as District Government Counsel and renew the term of
their appointment as per the recommendations of District Judges. Similar
writ petitions were filed by others whose appointments had not been
renewed.
13. On 7.12.2012, the Division Bench of the High Court passed the
following order:
“We have heard learned counsel for parties and perused the pleadings
of writ petition.
Learned Advocate General, State of U.P. submitted that he will
personally look into the files of all the orders which are impugned in
this Bunch of writ petitions.
According to learned Advocate General the legal position as
decipherable from the judgments of Hon'ble the Apex Court in such
cases as the one in hand of the bunch is that there is a duty cast
upon the State to examine and assess the performance and records of
candidates dispassionately but there is no corresponding right in
their favour to claim appointments or renewal of appointments. Thus,
according to him there would be no ambiguity in dealing with these
matters during the course of exercise to be undertaken by the
Administrative Department.
It would not be out of place to observe that in the order passed
earlier, this Court has only reiterated the directions as given by the
Hon'ble Apex Court.
Besides, the State must also remember that the Special Leave Petition
filed by it against the judgment of coordinate Bench has been
withdrawn and thus the State has accepted the verdict, which, inter-
alia, provides for the primacy of opinion of learned District Judge.
None-the-less, District Judges are also expected not to record their
opinions without obtaining opinions of courts where the candidates
have worked as Government pleaders and so should also be in the case
of District Magistrates concerned in order to provide independent
views on the basis of materials on record.
At this stage, learned Advocate General prays for and is granted
adjournment till 16.01.2013 to ensure exercise in terms of the
judgments and orders of Hon'ble the Apex Court as well as this High
Court before the next date of hearing.
List this matters on 16.01.2013 along with Writ Petition Nos. 9992
(M/B) of 2012, 10134 (M/B) of 2012, 10144 (M/B) of 2012, 10152 (M/B)
of 2012, 10153 (M/B) of 2012, 10154 (M/B) of 2012, 10155 (M/B) of
2012, 10156 (M/B) of 2012, 10157 (M/B) of 2012, 10169 (M/B) of 2012,
10178 (M/B) of 2012, 10179 (M/B) of 2012, 10185 (M/B) of 2012, 10188
(M/B) of 2012, 9970 (M/B) of 2012, 10040 (M/B) of 2012, 10054 (M/B) of
2012, 10055 (M/B) of 2012, 10064 (M/B) of 2012, 10069 (M/B) of 2012,
10074 (M/B) of 2012, 10075 (M/B) of 2012, 10077 (M/B) of 2012, 10078
(M/B) of 2012, 10083 (M/B) of 2012, 10085 (M/B) of 2012, 10088 (M/B)
of 2012, 10089 (M/B) of 2012, 10106 (M/B) of 2012, 10107 (M/B) of
2012, 10120 (M/B) of 2012, 10127 (M/B) of 2012, 10128 (M/B) of 2012,
10130 (M/B) of 2012, 10133 (M/B) of 2012 and 10999 (M/B) of 2012.
In the meantime, the Department of Law may also complete the exercise
by undertaking independent examination of records as required of it in
such cases where independent views of District Judges and District
Magistrates are available, in the light of observations made
hereinabove in order to expedite the process of renewal and
appointment but it shall not issue any fresh appointment letter.”
(reproduced from the appeal paper book)
14. In compliance of the direction contained in the aforesaid order of
the High Court, the State Government is said to have scrutinized some
records and filed status report. On the next date of hearing, i.e.,
7.3.2013, the Additional Advocate General appearing for the appellants
herein informed the High Court that complete status report could not be
filed due to non-availability of documents. The Division Bench of the High
Court accepted her request for adjournment and posted the matter for
20.3.2013. Simultaneously, the appellants were directed to issue orders for
renewal in the cases where the details of the applicants were available.
15. The appellants have questioned the High Court’s order primarily on
the ground that the same is contrary to the law laid down by the larger
Bench in State of U.P. v. Johri Mal (supra). According to the appellants,
order passed by this Court in SLP(C) Nos. 4042-4043/2012 is per incuriam
because the same is contrary to the ratio of the judgment of the larger
Bench. Another contention of the appellants is that appointment of District
Government Counsel and Additional District Government Counsel and renewal
of their term can be made only after making evaluation of their work and
conduct keeping in view their past performance and the High Court could not
have issued an interim mandamus for renewal of the term of the private
respondents.
16. Before proceeding further, we may mention that in compliance of the
directions given by this Court on 26.8.2013, 2.9.2013 and 5.9.2013, Shri
S.K. Pandey, Principal Secretary (Law)/Legal Remembrancer, Government of
Uttar Pradesh filed affidavits dated 1.9.2013 and 8.9.2013. For the sake of
reference, paragraphs 2 and 3 of the first affidavit and paragraph 2 of the
second affidavit are extracted below:
“First Affidavit dated 1.9.2013
2. That the present petition arises out of the Writ Petition (Misc.
Bench) No. 9127 of 2012 along with which there are 248 petitions
pending before the Lucknow Bench of the Allahabad High Court and in
the said total 249 Writ Petitions, there are total 443 claimants for
their renewal for the post of District Government Counsel / Additional
District Government Counsel / Assistant District Government Counsel,
etc. for three different categories (Criminal, Civil and Revenue). In
addition to the above 443 claimants, after 16.01.2013 further about 85
Writ Petitions have been filed claiming renewals and reappointments on
the basis of earlier appointments and in the said Writ Petitions also
there are about 200 claimants there by making total about 643
claimant. Contrary to the said claim of renewals of so many candidates
whose report of District Judge are favourable, the number of available
vacancies are only 354. Most of the reports of the Districts Judges
are stating that their work and conduct are good and they have
knowledge of law. None of the reports say any adverse comment or
anything which could be deemed to be dereliction of duty. There are
many instances where the candidature for renewal have been recommended
by the District judge with identically worded recommendations even
when the record bears out that the candidate's performance has
remained lacking.
3. That in the first batch of total 443 claimants, 430 writ
petitioners are those who had been appointed at the time when the
amendment to L.R. Manual had taken place on 13.08.2008. There are only
13 petitioners renewals who had been appointed in terms of the un-
amended L.R. Manual (existing as on today).”
Second Affidavit dated 8.9.2013
“2. It is submitted that the cases of all the eligible persons shall
be considered against the available vacant posts strictly in
consultation with the District Judge(s) and District Magistrate(s).”
17. Respondent Nos.1 and 2 have filed counter to the first affidavit to
controvert the statement of the Law Secretary and accused the appellants of
trying to mislead the Court. They have also relied upon the judgment of
this Court in State of Uttar Pradesh v. Ashok Kumar Nigam (supra) and
pleaded that in view of the favourable recommendations made by the District
Judges and the District Magistrates, the State Government is obliged to
renew their appointments.
18. While Shri Harish N. Salve, learned senior counsel appearing for the
appellants argued that the order under challenge should be set aside being
contrary to the law laid down by this Court in Johri Mal’s case and Rakesh
Kumar Keshari’s case and the State Government should be allowed to consider
the candidature of all eligible persons for appointment against the
available vacancies in consultation with the District Judges and District
Magistrates, Shri Aman Lekhi, learned senior counsel appearing for the
respondent Nos. 1 and 2 argued that this Court should not interfere with
the impugned order because the direction given by the High Court is in
consonance with order dated 6.1.2012 passed by the High Court and the
clarifications given by this Court on 17.7.2012. Shri Lekhi criticized the
affidavits of the Law Secretary and submitted that the officer has tried to
mislead this Court on the issue of number of available vacant posts.
Learned senior counsel further argued that respondent Nos.1 and 2 and other
similarly situated persons are entitled to have the term of their
appointment renewed because the District Judge and the District Magistrate
have not found anything adverse qua their conduct and performance.
19. We have given serious thought to the entire matter. About 100 writ
petitions with prayer similar to those contained in Writ Petition
No.9127/2012 are pending before the High Court. The question
whether the
existing District Government Counsel and Additional District Government
Counsel are entitled to renewal of their term as of right or the State
Government is required to act in consonance with paragraph 7.08 of the LR
Manual and the judgments of this Court in Johri Mal’s case and Rakesh Kumar
Keshari’s case, is yet to be decided. Therefore, the Division Bench of the
High Court was not at all justified in issuing an interim mandamus for
renewal of the appointments of respondent Nos. 1 and 2. While doing so, the
High Court ignored the law laid down in Ramesh Chandra Sharma’s case,
Harpal Singh Chauhan’s case, Johri Mal’s case and Rakesh Kumar Keshari’s
case as also Ashok Kumar Nigam’s case, that appointment of District
Government Counsel and renewal of their term is required to be made in
accordance with the provisions of LR Manual read with Section 24 Cr.P.C.
20. While renewing the term of the appointment of the existing incumbents
the State Government is required to consider their past performance and
conduct in the light of the recommendations made by the District Judges and
the District Magistrates.
Therefore, the High Court could not have issued a
mandamus for renewal of the term of respondent Nos. 1 and 2 and other
similarly situated persons and thereby frustrated the provisions of LR
Manual and Section 24 Cr.P.C.
21. In the premise aforesaid, the appeal is allowed and the impugned
order is set aside.
The State Government shall now fill up the existing
vacant posts by considering the cases of all eligible persons strictly in
accordance with the relevant provisions of LR Manual read with Section 24
Cr.P.C. and the judgments of this Court in Johri Mal’s case and Rakesh
Kumar Keshari’s case.
The District Judges and the District Magistrates, who
are required to be consulted by the State Government, are expected to make
objective assessment of the work, conduct and performance of the candidates
and make recommendations keeping in view larger public interest in
contradistinction to the interest of the particular political party.
22. The cases of renewal of appointment of the existing incumbent shall
likewise be considered in accordance with the provisions contained in LR
Manual and the judgments of this Court. This exercise shall be undertaken
and completed within a period of four months from today.
23. The Registry is directed to send a copy of this order to the
Registrar General of the Allahabad High Court who shall place the matter
before the Chief Justice of the High Court. The learned Chief Justice may
consider the desirability of posting all the matters before one Bench to
facilitate expeditious adjudication of the pending matters.
......………………………..….J.
[G.S. SINGHVI]
New Delhi, ...….……..…..………………..J.
November 13, 2013. [C. NAGAPPAN]
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