Allahabad High Court
Jai Singh Yadav vs State Of U.P. Thru Prin.Secy.Law Deptt. ... on 19 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 2091
Bench: Munishwar Nath Bhandari, Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 4 AFR
Writ Petition No. 35854 (MB) of 2018
Jai Singh Yadav
Vs.
State Of U.P. Thru Prin.Secy.Law Deptt. Lucknow And Ors.
connected with
Writ Petition No. 10654 (MB) of 2018
Amjad Ali
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 25681 (MB) of 2018
MOHD.BULAND AKHTAR
Vs.
STATE OF U.P. THRU PRIN.SECY.DEP
with
Writ Petition No. 25749 (MB) of 2018
SAIYAD MOHAMMAD HASNAIN
Vs.
STATE OF U.P. THRU PRIN.SECY.DEP
with
Writ Petition No. 26557 (MB) of 2018
RAGHUVEER SINGH YADAV
Vs.
STATE OF U.P. THRU PRIN.SECY.LAW
with
Writ Petition No. 26457 (MB) of 2018
RAMA KANT RAJVANSHI AND
Vs.
STATE OF U.P THRU PRIN.SECY.LAW
with
Writ Petition No. 27454 (MB) of 2018
JAY SHANKER YADAV
Vs.
STATE OF U.P. THRU PRIN.SECY. LAW
with
Writ Petition No. 27462 (MB) of 2018
ANIL KUMAR SINGH
Vs.
STATE OF U.P.THRU PRIN.SECY. LAW
with
Writ Petition No. 27465 (MB) of 2018
SUNEETA GUPTA
Vs.
STATE OF U.P.THRU PRIN.SECY. LAW
with
Writ Petition No. 27469 (MB) of 2018
KRISHNA KUMAR PANDEY
Vs.
STATE OF U.P.THRU PRIN.SECY.LAW
with
Writ Petition No. 27710 (MB) of 2018
KIRPAL SINGH AND 3 ORS.
Vs.
STATE OF U.P. THRU PRIN.SECY.DEP
with
Writ Petition No. 26954 (MB) of 2018
AMAR NATH YADAV
Vs.
STATE OF U.P.THRU PRIN.SECY.LAW
with
Writ Petition No. 26699 (MB) of 2018
SHYAMDHAR PANDEY
Vs.
STATE OF U.P.THRU. PRIN.SECY. LA
with
Writ Petition No. 26702 (MB) of 2018
ARVIND KUMAR YADAV
Vs.
STATE OF U.P.THRU. PRIN.SECY. LA
with
Writ Petition No. 26730 (MB) of 2018
GANGA RAM AND 3 ORS.
Vs.
STATE OF U.P. THRU PRIN.SECY. LAW
with
Writ Petition No. 26660 (MB) of 2018
PRADEEP KUMAR SINGH
Vs.
STATE OF U.P.THRU.PRIN.SECY. LAW
with
Writ Petition No. 25679 (MB) of 2018
SURENDRA KUMAR
Vs.
STATE OF U.P. THRU PRIN.SECY.DEP
with
Writ Petition No. 27009 (MB) of 2018
ISLAM AHMAD
Vs.
STATE OF U.P.PRIN. SECY. LAW DEP
with
Writ Petition No. 29196 (MB) of 2018
SURENDRA SINGH YADAV
Vs.
STATE OF U.P. THRU.PRIN. SECY. D
with
Writ Petition No. 27883 (MB) of 2018
SMT.MANOJ CHAHAL
Vs.
STATE OF U.P. THRU PRIN.SECY. DEP
with
Writ Petition No. 27948 (MB) of 2018
AZAM ZAMIR AND ORS.
Vs.
STATE OF U.P.THRU PRIN. SECY. DEPT
with
Writ Petition No. 31251 (MB) of 2018
OMENDRA KUMAR DIXIT
Vs.
STATE OF U.P.THROU.PRIN.SECY. LAW
with
Writ Petition No. 31255 (MB) of 2018
DHARMENDRA PAL SINGH
Vs.
STATE OF U.P.THROU.PRIN.SECY. LAW
with
Writ Petition No. 31929 (MB) of 2018
RAMESH KUMAR SHUKLA
Vs.
STATE OF U.P. THRU.PRIN. SECY. L
with
Writ Petition No. 31210 (MB) of 2018
MOHD. IPTEKHAR JAMSHED
Vs.
STATE OF U.P.THROU.PRIN.SECY.LAW
with
Writ Petition No. 31208 (MB) of 2018
PRAVEEN KUMAR YADAV
Vs.
STATE OF U.P.THRU.PRINCIPAL SECR
with
Writ Petition No. 31211 (MB) of 2018
ANSAR AHMAD
Vs.
STATE OF U.P. THRU. PRINCIPAL SECR
with
Writ Petition No. 4628 (MB) of 2019
UMESH KUMAR YADAV & ORS.
Vs.
STATE OF U.P. THRU PRIN. SECY. D
with
Writ Petition No. 35849 (MB) of 2018
KAMAL ADMAD SIDDIQUI
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 35850 (MB) of 2018
VIRENDRA KUMAR YADAV
Vs.
STATE OF U.P. THRU PRIN.SECY. LAW
with
Writ Petition No. 35004 (MB) of 2018
SAIYAD MOHD. HASNAIN
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 33887 (MB) of 2018
RAJENDRA PRASAD AGRAWAL & ORS.
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 33704 (MB) of 2018
PRAMOD KUMAR GUPTA & ORS
Vs.
STATE OF U.P THRU PRIN SECY LAW
with
Writ Petition No. 33115 (MB) of 2018
SURESH KUMAR YADAV
Vs.
STATE OF U.P. THRU. PRIN. SECY
with
Writ Petition No. 2974 (MB) of 2019
AINUDDIN & ORS.
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 633 (MB) of 2019
BRIJENDRA SINGH
Vs.
STATE OF U.P. THRU. PRIN. SECY
with
Writ Petition No. 630 (MB) of 2019
NIRVIKAR SINGH BHADURIA
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 1525 (MB) of2019
CHAMAN PRAKASH SHARMA
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petitoin No. 1211 (MB) of 2019
DEVI SHARAN SHARMA
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 1480 (MB) of 2019
MOHD. IRSHAD ALI
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 1701 (MB) of 2019
DINESH KUMAR
Vs.
STATE OF U.P.THROU.PRIN.SECY.LAW
with
Writ Petition No. 31246 (MB) of 2018
PRADEEP KUMAR YADAV
Vs.
STATE OF U.P.THROU.PRIN. SECY.LAW
with
Writ Petition No. 19251 (MB) of 2018
DINESH KUMAR YADAV AND OTHERS
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 6633 (MB) of 2019
INDRA PAL SINGH & ORS.
Vs.
STATE OF U.P. THRU PRIN. SECY. L
with
Writ Petition No. 5885 (MB) of 2019
KOMAL SINGH
Vs.
STATE OF U.P. PRIN SECY/LEGAL RE
with
Writ Petition No. 6554 (MB) of 2019
SHREE PRAKASH SHARMA
Vs.
STATE OF U.P. THRU PRIN. SECY. L
with
Writ Petition No. 6654 (MB) of 2019
RAVINDRA SINGH YADAV & ORS.
Vs.
STATE OF U.P. THRU PRIN. SECY. L
with
Writ Petition No. 4562 (MB) of 2019
SHABBIR AHMAD
Vs.
STATE OF U.P. THRU PRIN. SECY. L
with
Writ Petition No. 4584 (MB) of 2019
VINITA KUMARI
Vs.
STATE OF U.P. THRU PRIN. SECY. L
with
Writ Petition No. 38035 (MB) of 2018
RAM BAKSH YADAV & ORS.
Vs.
STATE O FU.P. THRU. PRIN. SECY.
with
Writ Petition No. 37768 (MB) of 2018
RAM BODH VERMA
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 5488 (MB) of 2019
RAM ASRAY YADAV
Vs.
STATE OF U.P. THRU PRIN. SECY. D
with
Writ Petition No. 12335 (MB) of 2018
RASHID JAMAL SIDDIQUI
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 28580 (MB) of 2018
NARENDRA KUMAR SAINI
Vs.
PRAMUKH SACHIV NYAYA EVAM VIDHI
with
Writ Petition No. 28608 (MB) of 2018
MUDIT KUMAR MATHUR
Vs.
PRAMUKH SACHIV NYAYA EVAM VIDHI
with
Writ Petition No. 24135 (MB) of 2018
NAROTTAM SINGH
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 24667 (MB) of 2018
SAVENDRA YADAV
Vs.
STATE OF U.P THRU PRIN SECY LAW
with
Writ Petition No. 33936 (MB) of 2018
DINESH KUMAR SRIVASTAVA
Vs.
STATE OF U.P.THRU. PRIN.SECY. DE
with
Writ Petition No. 33025 (MB) of 2018
RAGHUNATH PRASAD ACHARYA & ORS.
Vs.
UTTAR PRADESH SARKAR DWARA PRAMU
with
Writ Petition No. 35403 (MB) of 2018
VIJAY KUMAR & ORS.
Vs.
U.P. GOVT. THRU. PRIN. SECY NYA
with
Writ Petition No. 36309 (MB) of 2018
DARA SHIKOH
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 12357 (MB) of 2018
MOHD. AZAM
Vs.
STATE OF U.P.THROUGH PRIN.SECY.L
with
Writ Petition No. 12362 (MB) of 2018
SMT. NAZMI SULTAN
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 12352 (MB) of 2018
DEO SARAN YADAV
Vs.
STATE OF U.P.THROUGH PRIN.SECY.L
with
Writ Petition No. 12348 (MB) of 2018
OM PRAKASH SINGH
Vs.
STATE OF U.P.THROUGH PRIN.SECY.L
with
Writ Petition No. 12354 (MB) of 2018
BRIJ PAL SINGH YADAV
Vs.
STATE OF U.P.THROUGH PRIN.SECY.L
with
Writ Petition No. 24133 (MB) of 2018
RAKSH PAL SINGH SHAKYA
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 12363 (MB) of 2018
KOUSAR MUSHTAQ
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 12361 (MB) of 2018
LALMAN PRASAD VERMA
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 12380 (MB) of 2018
MAHENDRA NARAIN
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 8209 (MB) of 2018
SHUKDEV YADAV AND ORS.
Vs.
STATE OF U.P.THROU,PRIN.SECY. LAW
with
Writ Petition No. 24134 (MB) of 2018
VIRESH KUMAR
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 33789 (MB) of 2018
VIJAI KUMAR SINGH
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 30349 (MB) of 2018
KIRTIPAL SINGH
Vs.
PRAMUKH SACHIV NYAY EVAM VIDHI P
with
Writ Petition No. 33555 (MB) of 2018
MOHD. SHAKEEL & ANR.
Vs.
STATE OF U.P. THRU.PRIN. SECY. D
with
Writ Petition No. 34676 (MB) of 2018
PRADEEP KUMAR YADAV
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 30400 (MB) of 2018
MAHTAB ALI KHAN
Vs.
PRAMUKH SACHIV NYAY & VIDHI PARA
with
Writ Petition No. 34681 (MB) of 2018
VINAY PRAKASH VERMA (A.D.G.C.) & ORS.
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 30385 (MB) of 2018
P.R. GAUTAM & ORS.
Vs.
PRAMUKH SACHIV NYAYA & VIDHI PAR
with
Writ Petition No. 37912 (MB) of 2018
RAKESH KUMAR PAL
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 33808 (MB) of 2018
RAJEEV KUMAR SINGH
Vs.
STATE OF U.P.THROUGH PRIN. SECY.LAW
with
Writ Petition No. 22195 (MB) of 2018
ARJUN KUMAR MAURYA
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 22239 (MB) of 2018
HARI NARAYAN VISHWAKARMA
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 22242 (MB) of 2018
KAMAL KISHORE YADAV
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 22244 (MB) of 2018
DILSHAD PERWEZ
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 22246 (MB) of 2018
PRAVEEN KUMAR SRIVASTAVA
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 22248 (MB) of 2018
SANTOSH KUMAR YADAV
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 22260 (MB) of 2018
SHARAD CHAND YADAV
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 22265 (MB) of 2018
SWATANTRA SINGH YADAV
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 22306 (MB) of 2018
SANJAI KUMAR SINGH
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 22309 (MB) of 2018
RANJANA SAXENA
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 8194 (MB) of 2019
AJAY SINGH & ORS.
Vs.
STATE OF U.P. TRHU PRIN. SECY. L
with
Writ Petition No. 7984 (MB) of 2019
CHANDRA PAL SINGH
Vs.
STATE OF U.P. PRIN. SECY/LEGAL R
with
Writ Petition No. 14100 (MB) of 2019
MOHD. ISLAM
Vs.
STATE OF U.P. THRU PRIN. SECY. L
with
Writ Petition No. 15661 (MB) of 2019
RAJENDRA KUMAR SRIVASTAVA & ANR.
Vs.
STATE OF U.P. THRU PRIN. SECY. L
with
Writ Petition No. 15048 (MB) of 2019
SUNIL KUMAR SAXENA
Vs.
STATE OF U.P. THRU PRIN.SECY.LAW
with
Writ Petition No. 16516 (MB) of 2019
MANSOOR ELAHI
Vs.
STATE OF U.P. THRU PRIN. SECY. L
with
Writ Petition No. 16021 (MB) of 2019
VINOD KUMAR YADAV & ORS.
Vs.
STATE OF U.P. THRU PRIN. SECY. L
with
Writ Petition No. 14569 (MB) of 2019
GOPAL JI AGARWAL
Vs.
STATE OF U.P. THRU PRIN. SECY. L
with
Writ Petition No. 14622 (MB) of 2019
RAMA SHANKAR YADAV
Vs.
STATE OF U.P. THRU PRIN. SECRETA
with
Writ Petition No. 19445 (MB) of 2019
ASHISH KUMAR TRIPATHI
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 21161 (MB) of 2019
IMAMUDDIN
Vs.
STATE OF U.P. THRU PRIN. SECY.
with
Writ Petition No. 10354 (MB) of 2019
BALBEER SINGH YADAV & ANR.
Vs.
STATE OF U.P. THRU PRIN. SECY. L
with
Writ Petition No. 4222 (MB) of 2018
MOHD. SHAHID RAZA &
Vs.
STATE OF U.P. THRU. PRIN. SECY.
with
Writ Petition No. 28867 (MB) of 2019
MANOJ KUMAR MUNI
Vs.
PRIN.SECY.NYAY EVAM VIDHI PARAMA
with
Writ Petition No. 28796 (MB) of 2019
UMESH CHANDRA
Vs.
PRIN.SECY.NYAY EVAM VIDHI PARAMA
with
Writ Petition No. 30058 (MB) of 2019
CHHEDI LAL
Vs.
STATE OF U.P.THRU.PRIN.SECY. LAW
Counsel for the petitioners: Ms. Madhulika Yadav, Mr. Dhruv Mathur, Mr. Prashant Arora, Mr. Mudit Agarwal, Mr. Virendra Kumar Dubey, Ms. Shradha Mishra, Mr. Pankaj Kumar Shukla, Mr. Rama Pati Shukla, Mr. Kazim Ibrahim, Mr. Ram Kumar Singh, Mr. Vinay Kumar Singh, Mr. Karunanidhi Yadav, Mr. Krishna Kant, Mr. Madhav Chaturvedi, Mr. Sarjoo Ram, Mr. Arvind Kumar, Mr. Akram Parvez Siddiqui, Mr. Uma Shanker, Mr. Ram Raj Ojha, Mr. Praveen Tripathi, Mr. Tribhuwan Srivastava, Mr. Manish Kumar Pandey, Mr. Satyendra Kumar Dubey, Mr. Anjali Divedi, Mr. Akhilesh Kumar, Mr. Mohd. Kamar, Mr. Chandra Bhushan Pandey, Mr. Asim Kumar Singh, Mr. Aziz Iqbal, Ms. Tabassum Siddiqui, Ms. Numan Asif, Mr. Mohd. Adnan and Mr. Patanjali Chaturvedi.
Counsel for the respondents: Mr. U.N. Mishra, Mr. Anand Pal Singh, C.S.C.
Hon'ble Munishwar Nath Bhandari,J.
Hon'ble Vikas Kunvar Srivastav,J.
1. The batch of writ petition is arising out of common questions of law and are based on same facts thus was taken up together for hearing.
2. By these writ petitions, a challenge has been made to the order to deny renewal of term of petitioner who were earlier engaged as District Government Counsel (civil, criminal and revenue)/Additional District Government Counsel (civil criminal and revenue)/Deputy Government Counsel (civil, criminal and revenue) and lastly Assistant Government Counsel (civil, criminal and revenue). The denial of renewal is precisely in absence of justification and accordingly the engagement as Government Counsel was dis-continued by the impugned order. For the purpose of appreciation of the facts, we have illustratively taken the fact of the writ petition bearing No. 35854 of 2018 (MB).
Brief facts of the case:
3. The respondent-State had invited application for engagement of District Government Counsel/Additional District Counsel/Deputy Government Counsel/Assistant Government Counsel. In pursuance of it, the petitioners submitted their applications and on selection, they were engaged as District Government Counsel/Additional District Government Counsel/Deputy Government Counsel/Assistant Government Counsel for a period of one year in accordance with the LR manual. In same case, first renewal of three years was given earlier. They were eligible to seek renewal after expiry of period of one year or three years, as the case may be. The renewal of the terms of those appointed for a period of one year was to be processed in the manner provided under para 7.06 of the Legal Remembrancer Manual (in short 'the LR manual') and for those who completed second term of three years, as per para 7.08 of the LR Manual.
4. According to the petitioners, the recommendation, as is required under paras 7.06 or 7.08 of the LR manual was made in favour of the petitioners but without assigning any reason, the renewal of term was declined. The challenge to the aforesaid has been made on various grounds.
Submission of the petitioners:
5. Learned counsel submits that all the petitioners were engaged as for a period of one year after undergoing the process, as given in para 7.03 of the LR manual. Those who completed one year's term satisfactorily, their case was to be considered for renewal of term, as per para 7.06 of the LR manual. It provides for a report of the District Officer in Form No. 9 in consultation of District Judge. In that form, details of the work along with report is to be given. It is also to certify the conduct of the counsel. If report in respect of his work and conduct is favourable, a deed of engagement in Form No. 1 for extension of term not exceeding three years is to be furnished.
6. In the instant case, the District Officer submitted a favourable report about the work and conduct of the petitioners. Instead of sending a deed of engagement in Form No. 1, as Para 7.06 (ii) of the LR manual, it was sent to the Government which passed the impugned order to refuse renewal of the period.
7. No reason has been given to deny the renewal of term despite a favourable report by the District Officer. A stereo type order has been passed in all the cases for denial of renewal of term which shows non application of mind of the respondents. The impugned order otherwise suffers from ulterior motive, as during the period of consideration of the case for renewal of term, the Minister concerned recommended engagement of a set of lawyers for fourteen days. The aforesaid is sufficient to show malice of the respondents, as the engagement of Government counsel for a period of fourteen days was without inviting application and verification of candidature but was as directed by the Minister. The action of the respondents to engage the Government counsel for a period of fourteen days was challenged separately in a bunch of writ petitions before the High Court at Allahabad which allowed the petition after holding engagement of Government counsel for fourteen days to be illegal. It was in the case of Santosh Kumar Pandey vs. State of U.P. and Ors. decided on 07.05.2019 in Writ-C No. 4794 of 2019.
8. The judgment aforesaid was challenged before the Apex Court but no interference in the order of the High Court was made though the respondents were permitted to make new engagement of the Government Counsel. In view of the aforesaid, the action of the respondents to engage a Government Counsel for a period of fourteen days was held to be illegal. It has nexus with the issues raised in the present writ petition as the respondents indulged in engagement of Government Counsel for a period of fourteen days instead of renewal of the term of the petitioners despite a favourable recommendation by the District Officer.
9. In same cases, even discrimination was caused. The favourable recommendation of the District officer was accepted in few cases while denying it in majority of cases. In view of the above, challenge to the order to refuse renewal of term has been made as it is not only by a cryptic order but is for one and the same reason. The aforesaid shows non-application for mind of the respondents in consideration of the case of each petitioner for renewal of their term. In case of application of mind, a stereo type order would not have been passed rather it could have been with different reasons.
10. The counsel for the petitioners have admitted that the recommendation made by the District Officer is subject to scrutiny by the State Government in case of second renewal of term under Para 7.08 of the LR Manual but the consideration therein should not be an empty formality but based on merit. It is by following the process given in Para 7.08 of the LR manual. To support the argument, learned counsel for the petitioners has made reference of the cases of State of U.P. vs. Johri Mal (2004) 4 SCC 714: State of U.P. vs. Ashok Kumar Nigam (2013) 31 LCD 1 SC and also the judgment in the cases of State of Punjab and Anr. vs. Brijeshwar Singh Chahal and Anr. (2016) 6 SCC 1. In the case of Brijeshwar Singh Chahal (supra), the Apex Court has given detailed direction for engagement of Government Counsel while accepting the arguments raised by the counsel for the petitioners therein. It was held that the engagement of District Government Counsel is not merely a professional engagement but a public element is also attached therein. The Government Counsels are paid remuneration out of the public exchequer.
11. A reference of Sections 24, 25 & 321 of the Code of Criminal Procedure has been given in regard to the engagement of Asstt. Government Counsel (criminal). The Government Counsel engaged to look after civil and revenue cases are not governed by the provisions of Cr.P.C. The direction of the Apex Court in the case of Brijeshwar Singh Chahal (supra) has not been applied by the respondents while considering renewal application.
12. It is also stated that while issuing the notice on the writ petition, any action of the respondents during the pendency of writ petition was made subject to its final outcome and accordingly if the respondents invited application for fresh engagement during the pendency of the writ petition, it would not affect claim of the petitioners. If the writ petitions are allowed then claim of the petitioners should not be frustrated due to engagement of fresh incumbents.
13. Learned counsel for the petitioners in one case submits that no recommendation was made by the District Officer as per para 7.06 of the LR manual. In absence of the recommendation, the State Government should have called for it for consideration of the case for renewal of term. Without any material, the order was passed to deny renewal of term and that too, by issuing a stereo type order. The LR manual has not been followed even to seek recommendation by the District Officer, as envisaged under Para 7.06 of the LR manual. The prayer is to allow the writ petitions after Governing it by the judgment of Apex Court in the case of Ashok Kumar Nigam (supra), where elaborate discussions of the issue have been made by referring the relevant paras of LR manual.
Submission of side opposite:
14. Learned Senior Counsel Sri Sandeep Dixit appearing for the State has contested the case not only on the facts but on the legal grounds raised by the petitioners. It is stated that the facts narrated by the petitioners shows their engagement as Government Counsel for a period of one year. It is thus to seek first renewal whereas in majority of the cases, first renewal in terms of para 7.06 of the LR manual for a period of three years was given earlier. In those cases, para 7.06 of the LR manual would not be applicable. The second renewal of term can be as per para 7.08 of the LR manual.
15. It is also stated that during pendency of the writ petition, the majority of the vacancies have been filed pursuant to the liberty given by the Apex Court in the case of State of U.P. vs. Santosh Kumar Pandey in SLP No. 18913 of 2019 decided by order dated 16.08.2019. The Apex Court while upholding the judgment of Allahabad High Court in the case of Santosh Kumar Pandey (supra) gave liberty to the State Government to make fresh engagement. In view of the liberty given by the Apex Court, the vacancies were notified to the members of the Bar. Pursuant to it, the applications were submitted not only by new incumbents/Bar members but even by majority of the petitioners.
16. The candidature of the applicants was considered by the State Government followed by the order of engagement. The candidature of majority of the petitioners was also considered for fresh engagement but were not found fit. Thus, now there is no reason for renewal of term under para 7.06 or 7.08 of the LR manual once their candidature has been considered for fresh engagement. The aforesaid factual aspect is also relevant while considering the issues raised by the petitioners.
17. In majority of the districts, the District Government Counsel/Additional District Government Counsel/Deputy Government Counsel/Assistant Government Counsel have been engaged. Thus, even if the interference in the impugned order is caused, it should not be with a direction to renew the term.
18. Learned Senior Counsel appearing for the respondents further raised objection for enforcing LR manual. It is submitted that it is not a statute so as to be enforced rather is an administrative instruction only. A reference of the judgment of the Apex Court in the case of Johri Mal (supra) so as in the case of State of U.P. vs. Ajay Kumar Sharma 2016 24 LCD 27 has been given. Therein it was held that LR manual is not statutory in nature so as to be enforced rather an administrative instruction. The petitioners cannot seek a direction for implementation of the administrative instruction either by referring para 7.06 or para 7.08 of the LR manual. The prayer is accordingly not to accept the argument in reference to the LR manual though clarification in reference to certain paras of LR manual has been given by him. It is only to justify action of the State Government and not for any other purpose.
19. Learned counsel submits that the impugned order contains reasons to deny renewal of the term. It is true that the reasons to deny renewal are similarly worded in all the cases but it is with application of mind. Separate reason in each case has not been given as it may cast stigma effecting professional career of the petitioners. It is no doubt that in majority of the cases, the District Officer made favourable recommendation but it was not binding on the State Government. It was accepted, if found appropriate. The renewal of term was given in those cases. Merely for the reason that all the orders are similarly worded, inference should be drawn regarding non application of mind. The State Government has applied its mind and after considering each case separately, the impugned order has been passed.
20. In view of the above, the impugned order does not suffer from non-application of mind so as to be interfered. A reference of para 7.08 of the LR manual has also been given to indicate that the Government is having liberty to accept the recommendation for renewal of the term not exceeding three years but at the same time to reject it. Para 7.08 of the LR manual provides that if Government decides not to re-appoint the Government Counsel, the District Officer would be requested to forward fresh recommendation in the manner given under para 7.03 of the LR manual.
21. In the instant case, the recommendations were called from the District Officer for engagement of District Counsel even prior to the judgment of the Apex Court in the case of Santosh Kumar Pandey (supra) and otherwise, learned counsels for the petitioners have conveniently omitted to refer para 7.8 of the LR manual though the same is also applicable to the facts of this case. The State Government was within its competence to deny renewal of term. It was not bound to follow para 7.06(ii) of the LR manual which provides that once the satisfactory report has been given by the District Officer in Form No. 9, a deed for extension of term is to be sent in Form No. 1. In fact, para 7.06 (ii) of the LR manual has to be read along with para 7.08 where discretion lies with the State Government to renew or to deny renewal of term in a given case. Thus, prayer of the petitioners to direct the respondents to renew the term pursuant to the recommendation of the District Officer is not tenable. The discretion of the State Government has been recognized by the Apex Court in the case of Johri Mal (supra) and in the case of Ajay Kumar Sharma (supra).
22. Coming to the facts pertaining to the temporary engagement of District Counsel for a period of fourteen days, it is submitted that the issue aforesaid has already been decided by the Apex Court in the case of Santosh Kumar Pandey (supra). The engagement of District Government Counsel for a period of fourteen days was due to circumstances existing then. It was for representation of the Government due to expiry of the term of the petitioners. They had no authority to appear on behalf of Government and therefor the arrangement was made and accordingly the Minister had rightly passed the order to engage the Government Counsel. It was not with a longer term but for a period of fourteen days as per LR Manual.
23. The Government had no intention to deny renewal in all the cases rather in few cases even recommendation has been accepted followed by renewal of the term. Accordingly, no discrimination has been caused rather each case has been considered by the State Government separately.
24. Learned Senior Counsel submits that judgment in the case of Brijeshwar Singh Chehal was on its own facts. The direction therein would not apply to the set of cases before this Court. The Apex Court has considered the same issue in the case of Ajay Kumar Sharma (supra). It is the recent judgment in reference to the Uttar Pradesh LR manual and applicable to the facts of this case. It is even subsequent to the judgment of the Apex Court in the case of Brijeshwar Singh Chahal (supra). Accordingly, the issues raised by the petitioners should not be governed by the dictum of the Apex Court in the case of Brijeshwar Singh Chahal (supra).
25. Learned Senior Counsel has reiterated the facts of the case to submit that now in the circumstance when the District Government Counsel/Additional District Government Counsel/Deputy Government Counsel/Assistant Government Counsel have already been engaged in majority of the districts leaving few, where the candidature of the petitioners was also considered, no purpose remains to cause interference in the order rather prayer is to dismiss all the writ petitions.
26. We have considered the rival submission of the parties and perused the record.
27. By a batch of writ petitions, a challenge has been made to the order denying renewal of the term of District Government Counsel/Additional District Government Counsel/Deputy Government Counsel/Assistant Government Counsel. The order impugned is similarly worded in all the cases thus, quoted herein to deal with the arguments raised by the parties. For ready reference, the impugned order passed in the writ petition bearing No. 35854 of 2018 (MB) is quoted hereunder:-
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28. The similar order has been passed in all the cases before us. The perusal of the order impugned herein shows that the Government did not find any justification to renew the term of the petitioners and accordingly their engagement was dis-continued with immediate effect. The order aforesaid has been passed in reference to two set of cases though initially it was not given by the petitioners but has been clarified by learned Senior Counsel for the respondent. The two set of cases are because in same cases, the petitioners are seeking first renewal of three years on completion of period of one year whereas in other cases, the renewal of term has been prayed on completion of the period of three years after first renewal. To elaborately discuss the issues raised before us, it would be relevant to first refer and quote paras 7.03, 7.06 & 7.08 of the LR manual, thus, are quoted hereunder:-
"7.03. Applications and qualifications- (1) Whenever the post of any of the Government Counsel in the District is likely to fall vacant within three months' or when a new post has been created, the District Officer concerned shall notify the vacancy to the members of the Bar. Members eligible for consideration would be those having at their credit a practice of 10 years in case of District Government Counsel, 7 years in case of Assistant District Government Counsel and 5 years in case of Sub- District Government Counsel. The District Officer shall ask those who want to be considered for appointment to a particular office to give their names to him with particulars such as age, length of practice at the Bar, proficiency in Hindi, Income Tax paid by them on professional income during last 3 years and if not assessed the return submitted by them, if any, details of the work handled by them during the course of the proceeding two years duly verified by court and whether they have practiced on criminal, civil and revenue side.
(2) The District Government Counsel and legal practitioners of the neighbouring districts may also send the above particulars for the post of District Government Counsel through their District Officers, who shall Forward the same to the District Officer of the District in which the appointment is to be made, with such remarks as they deem fit.
(3) The names so received shall be considered by the District Officer in consultation with the District Judge. The District Officer shall give due weight to the claim of the existing incumbents (Additional/Assistant District Government Counsel), if any, and shall submit confidentially in order of preference the names of the legal practitioners for each post to the Legal Remembrancer giving his own opinion of the District Judge on the suitability and merits, of each candidate. While forwarding his recommendations to the Legal Remembrance the District Officer shall also send to him the biodata submitted by other incumbents with such comments as he and the District Judge may like to make. In making the recommendations, the proficiency of the candidate in civil or criminal or revenue law, as the case may be, as well as in Hindi shall particularly be taken into consideration.
Provided that it will also be open to the District Officer to recommend the name of any person, who may be considered fit, even though he may not have formally supplied his biodata for being considered for appointment. the willingness of such a person to accept the appointment if made shall, however, be obtained before his name recommended.
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 Remembrance together with the statement of work done in Form no. 9. Should his work or conduct be found to be unsatisfactory the matter shall be reported to the Government for orders. If the report in respect of his work and conduct is satisfactory, he may be furnished with a deed of engagement in Form no. 1 for a term not exceeding three years. On his first engagement a copy of Form no. 2 shall be supplied to him and he shall complete and return it to the Legal Remembrance 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 appointed to a post under the Government. Accordingly the Government reserves the power to terminate the appoint5ment o any District Government Counsel at any time without assigning 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 Remembrance, 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 therefore 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 conduction 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."
29. Para 7.03 of the LR manual has been quoted as aforesaid para was invoked by the respondents during the pendency of the writ petition for engagement of District Government Counsel/Additional District Government Counsel/Deputy Government Counsel/Assistant Government Counsel.
30. The aforesaid has been referred even by the Senior Counsel appearing for the State of U.P. We need not to go deep in para 7.03 of the LR manual, as it is case for renewal of the term and not for engagement under para 7.03 of the LR manual. The reference of paras 7.06 & 7.08 of the LR manual would be relevant to deal with the case of two categories given above. The first category is seeking renewal of the term after completion of one year period thus to be governed by para 7.06 of the LR manual. As per para 7.06(ii), the District Officer is to submit a report of the work and conduct together with the statement of work done in form No. 9 in consultation of District Judge. If the work and conduct are found unsatisfactory, the matter is to be sent to the Government for orders but if the work and conduct are found satisfactory, the District Officer is required to furnish a deed of engagement in Form No. 1 for a term not exceeding three years.
31. As per para 7.06 of the LR manual, the renewal is to be done at the level of District Officer while the denial is by the Government. Para 7.06 of the LR manual is applicable when a candidate is seeking first renewal after the expiry of period of one year from the date of his taking over charge after his/her engagement. Para 7.08 of the LR manual is also renewal of the term. It also makes a reference for consideration of the work and conduct apart from age etc. by the District Officer together with the statement of work done by him in Form No. 9. A copy of the opinion of the District Judge is to be sent along with the recommendation of the District Officer. Para 7.08(ii) provides that if the extension of the term is to be for a specified period, the reason thereof shall be given by the District Officer. Sub para (iv) of para 7.08 provides that if Goverment agrees with the recommendation of the District Officer for renewal of term, it may pass orders to reappoint him for a period of three years whereas under sub-para (v), if Government takes a decision not to re-appoint the Government Counsel, fresh recommendation may be submitted by the District Officer. Under para 7.08, the process of renewal or denial goes up to the Government even after favourable recommendation of the District Officer coupled with the opinion of the District Judge.
32. We need to first make a distinction between paras 7.06 & 7.08 of the LR manual, as both pertains to renewal. The paras operate in different set of circumstances. Para 7.06 of the manual would apply in case of first renewal after completion of period of one year whereas para 7.08 would apply in case of renewal on completion of period of three years after second renewal. In view of above, we do not find any conflict between the two paras referred by the learned counsel for the parties rather they operate in separate set of facts, as clarified by the Senior Counsel appearing for the State Government.
33. Before we go deep in reference to the LR manual, it would be necessary for us to deal with the issue in reference to the status of LR manual. It is not a statute, as admitted by all the parties but according to the petitioners, it is binding in the light of the judgments of the Apex Court referred by them.
34. As against the aforesaid, Sri Sandeep Dixit, learned Senior Counsel submits that the LR manual is not a statute rather an administrative instruction, thus, cannot be enforced. Specific reference of the judgment of the Apex Court in the case of Johri Mal (supra) and the last judgment in the case of Ajay Kumar Sharma (supra) have been given for the aforesaid.
35. It is stated that administrative instruction would not be enforceable even if the interpretation in reference to para 7.06 & 7.08 of the LR manual is taken by the Court in the manner given by the petitioners. The Government is having liberty to engage the Government Counsel as per their choice to select the best, leaving others. The procedure applied in the present case is to engage efficient advocates. The issue in reference to the LR manual is required to be settled before we proceed further. We are referring certain paras of the judgment of Johri Mal (supra), where the issue aforesaid has been dealt with.
36. In the case of Johri Mal (supra), the Apex Court came to the conclusion that LR Manual cannot be taken to be law under Article 13 and is not otherwise covered by Article 166 of the Constitution of India. It is however with the observation that for engagement of the District Government Counsel/Additional District Government Counsel/Deputy Government Counsel/Assistant Government Counsel, the Government need to act fairly and for that normally to follow the LR manual. Paras 20, 21, 24, 38, 42-46 & 84-87 of the judgment in the case of Johri Mal (supra) are quoted hereunder for ready reference:-
"20. A supplementary provision has been made in Chapter XXI of the said Manual for appointment and renewal of the post of public prosecutors. It inter alia contains the guidelines and clarifies that the appointment of DGC (Criminal), the change of designation of the public prosecutors could not effect the basic nature of their professional engagement. It further provides that such professional engagement is terminated on either side without notice and without assigning any reason. It is stated that the appointment of public prosecutor and Addl. Prosecutor both for the High Court and District shall be made in accordance with Section 24 of the new Code. Para 21.04 provides for constitution of a panel of five years against each vacancy. It mandates that the State Government shall appoint an Additional Public Prosecutor out of the names appeared in the panel. Paras 21.07 and 21.08 of the said Manual read as under:
"21.07. The appointment of Public Prosecutor or Additional Public Prosecutor shall be made for the period of three years, but the State Government can terminate such appointment at any time without notice and without assigning any reason. The State Government may extend the period of such appointment from time to time and such extension of such term shall not be treated as new appointment.
21.08. The District Magistrate shall after consultation with the Sessions Judge submit a confidential report in respect of the Public Prosecutor and Additional Public Prosecutors giving details about the percentage of success of cases conducted by them and the general reputation which they enjoy. Where the percentage of success is low the reasons given by the Public Prosecutor or Additional Public Prosecutor for the same should also be commented on. After every three years he shall make a special assessment of each such Public Prosecutor or Additional Public Prosecutor and recommend whether the person concerned should be granted extension for a further term of three years or for a shorter term only."
21. The provisions of the Code of Criminal Procedure which are statutory in nature govern the field. The State of Uttar Pradesh, however, for reasons best known to it amended Sub-Section (1) of Section 24 of the Code of Criminal Procedure as a result whereof, the State is not required to consult the High Court before appointing a Public Prosecutor for the High Court. Similarly, Sub-Sections (4), (5) and (6) of Section 24 have also been deleted purported to be on the ground that similar provisions exist in the Legal Remembrancer Manual. The Legal Rememberancer Manual is merely a compilation of executive orders and is not a 'law' within the meaning of Article 13 of the Constitution of India.
24. The legal right of an individual may be founded upon a contract or a statute or an instrument having the force of law. For a public law remedy enforceable under Article 226 of the Constitution, the actions of the authority need to fall in the realm of public law -be it a legislative act or the State, an executive act of the State or an instrumentality or a person or authority imbued with public law element. The question is required to be determined in each case having regard to the nature of and extent of authority vested in the State. However, it may not be possible to generalize the nature of the action which would come either under public law remedy or private law field nor is it desirable to give exhaustive list of such actions.
38. A distinction is to be borne in mind between appointment of a Public Prosecutor or Additional Public Prosecutor, on the one hand, and Assistant Public Prosecutor, on the other. So far as Assistant Public prosecutors are concerned, they are employees of the State. They hold Civil posts. They are answerable for their conduct to higher statutory authority. Their appointment is governed by the service rules framed by the respective State Government. (See Samarendra Das, Advocate Vs. The State of West Bengal and Ors. [JT 2004 (2) SC 413]).
42. It may be true that the Legal Remembrancer Manual provides for renewal but it contains executive instructions which even do not meet the requirements of clause (3) of Article 166 of the Constitution. Legal Remembrancer Manual is not a law within the meaning of Article 13 of the Constitution of India. [See Union of India vs. Naveen Jindal & Anr.- JT 2004 (2) SC 1]
43. The State, however, while appointing a counsel must take into account the following fundamental principles which are required to be observed that good and competent lawyers are required to be appointed for (i) good administration of justice; (ii) to fulfill its duty to uphold the rule of law; (iii) its accountability to the public; and (iv) expenditure from the tax payers' money.
44. Only when good and competent counsel are appointed by the State, the public interest would be safeguarded. The State while appointing the public prosecutors must bear in mind that for the purpose of upholding the rule of law, good administration of justice is imperative which in turn would have a direct impact on sustenance of democracy. No appointment of public prosecutors or district counsel should, thus, be made either for pursuing a political purpose or for giving some undue advantage to a section of people. Retention of its counsel by the State must be weighed on the scale of public interest. The State should replace an efficient, honest and competent lawyer, inter alia, when it is in a position to appoint a more competent lawyer. In such an event, even a good performance by a lawyer may not be of much importance.
45. However, malice in law can also be a ground for judicial review.
46. The Code of Criminal Procedure does not provide for renewal or extension of a term. Evidently, the Legislature thought it fit to leave such matters at the discretion of the State. It is no doubt true that even in the matter of extension or renewal of the term of Public Prosecutors, the State is required to act fairly and reasonably. The State normally would be bound to follow the principles laid down in the Legal Remembrancer Manual.
84. Keeping in mind the aforementioned legal principles the question which arises for consideration in these appeals is, the nature and extent of consultation, a Collector is required to make with the District Judge.
85. The age-old tradition on the part of the State in appointing the District Government Counsel on the basis of the recommendations of the District Collector in consultation with the District Judge is based on certain principles. Whereas the District Judge is supposed to know the merit, competence and capability of the concerned lawyers for discharging their duties; the District Magistrate is supposed to know their conduct outside the court vis-`-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.
86. We are also pained to see that the Stat of Uttar Pradesh alone had amended sub-section (1) of Section 24 and deleted sub-sections (3), (4) and (5) of Section 24 of the Code of Criminal Procedure. Evidently, the said legislative step had been taken to overcome the decision of this Court in Kumari Shrilekha Vidyarthi (supra). We do not see any rationale in the said action. The learned counsel appearing for the State, when questioned, submitted that such a step had been taken having regard to the fact that exhaustive provisions are laid down in Legal Remembrancer Manual which is a complete code in itself. We see no force in the said submission as a law cannot be substituted by executive instructions which may be subjected to administrative vagaries. The executive instructions can be amended, altered or withdrawn at the whims and caprice of the executive for the party in power. Executive instructions, it is beyond any cavil, do not carry the same status as of a statute.
The State should bear in mind the dicta of this Court in Mundrika Prasad Singh (supra) as regard the necessity to consult the District Judge. While making appointments of District Government Counsel, therefore, the State should give primacy to the opinion of the District Judge. Such a course of action would demonstrate fairness and reasonableness of action and, furthermore, to a large extent the action of the State would not be dubbed as politically motivated or otherwise arbitrary. As noticed hereinbefore, there also does not exist any rationale behind deletion of the provision relating to consultation with the High Court in the matter of appointment of the Public prosecutors in the High Court. The said provision being a salutary one, it is expected that the State of U.P. either would suitably amend the same or despite deletion shall consult the High Court with a view to ensure fairness in action."
37. In para 45, it has been held that even the malice in law can be a ground for judicial review. In para 46, it is given that the Code of Criminal Procedure does not provide for renewal or extension of term. It is however with the finding that even in the matter of extension or renewal of the term of Government Counsel, the State needs to be fair. The State would normally be bound to follow the principles laid down in the LR manual. The conclusion can safely be drawn that though the LR manual is not a statute, yet the State is bound to follow it normally. The view aforesaid was followed even in the subsequent judgment in the case of State of U.P. and Ors. vs. Rakesh Kumar Keshri and Anr. (2011) 5 SCC 341.
38. In the light of the finding aforesaid, we cannot ignore LR manual rather procedure laid down therein is required to be followed for just and fair action. The allegations have been made that the recommendation for renewal were turned down by passing a verbatim similar order. The order is word to word same in all the cases, which generally cannot happen if independent scrutiny of each case is made.
39. The scrutiny of each case is required even as per the dictum of the Apex Court in the case of Ashok Kumar Nigam (supra), which applies to the facts of this case where similar challenge was made and accepted by the Apex Court in reference to para 7.06 & 7.08 of the LR manual. The reference of the aforesaid judgment would be made in the later part of the judgment while examining action of the respondents in reference to the LR manual. Here it would be relevant to mention that apart from the post of District Government Counsel/Additional District Government Counsel/Deputy Government Counsel/Assistant Government Counsel governed by para 7.06 & 7.08 of the LR manual. Paras 21.07 & 21.08 are also relevant. It has been referred by the Apex Court in the case of Johri Mal (supra). Para 21.07 talks about the Public Prosecutor and Assistant Public Prosecutor. Their cases have to be dealt as per the procedure given in Chapter XXI of the LR manual starting from para 21.04 and onwards. The aforesaid paras have been referred for the reason that while the criminal cases can be represented on behalf of the prosecution only by the Public Prosecutor and Assistant Public Prosecutor. In the case of Civil and Revenue, it can be through the District Government Counsel/Additional District Government Counsel/Deputy Government Counsel/Assistant Government Counsel.
40. The provisions of Sections 24 & 25 of the Code of Criminal Procedure would also be relevant for the appointment of the Public and Assistant Public Prosecutor. It was considered by the Apex Court in the case of Johri Mal (supra). It was held that the engagement of Public Prosecutor and Assistant Public Prosecutor would also be governed by LR manual. The post of Assistant Public Prosecutor is however a civil post and not a tenure post. The Assistant Public Prosecutor is to be appointed strictly in the manner given under Sections 24 & 25 of the Code of Criminal Procedure. The State of U.P. made amendment in Sections 24 & 25 of the Code of Criminal Procedure, which was again discussed by the Apex Court in the case of Johri Mal (supra) and remain an issue of criticism with a direction to revisit the provisions, as amended. The reference of Chapter XXI of LR manual has been given to have clarity of the facts involving not only for the engagement of the District Government Counsel/Additional District Government Counsel/Deputy Government Counsel/Assistant Government Counsel but of Assistant Public Prosecutor appear in the criminal side. It need to be as per the provisions of the Code of Criminal Procedure and not de hors to it.
41. In view of the above, the respondents were expected to follow the procedure given under LR manual though it may not be considered to be under Article 13 or 166 but then it should be followed normally, as is directed by the Apex Court in the case of Johri Mal (supra).
42. According to learned counsel appearing for the respondents, judicial review of the action of the respondents is not permissible. To support the argument, reference of the judgment in the case of Johri Mal (supra) has been given. To examine the issue aforesaid, we have gone through the judgment of the Apex Court in the said case apart from the judgment in the case of Rakesh Kumar Keshri (supra) and Ashok Kumar Nigam (supra). The judicial review of the administrative action or a policy decision is not permissible as an appellate authority. The judicial review of the action has been kept on limited grounds, thus, it is not barred. It can be made if action suffers from unfairness or unreasonableness. It can be when it cannot be trusted to be just and proper in common parlance or is unconstitutional and is against the statutory provisions.
43. In the light of finding aforesaid, the judicial review of the action of the respondents can be made though on the limited grounds given above.
44. Coming to the judgment of the Apex Court in the case of Johri Mal(supra), we find that the District Officer therein recommended the case favourable but with an adverse remark regarding relation with the district administration. Despite adverse remark, the Court directed for renewal of the term. It was not accepted by the Apex Court. Similar was the case of Rakesh Kumar Keshri (supra).
45. In the instant case, no material has been produced by the respondents to show any adverse remarks against any of the petitioners. The State Government was given time to call for the record to show any adverse material making basis to deny renewal. They were even permitted to show confidential report, if any remark exist to justify their action, otherwise it remains to be arbitrary. It is for the reason that despite a favourable recommendation by the District Officer with details of the working of the candidate in Form No. 9 in consultation of the District Judge or the other Judge before whom the Government Counsel appeared, renewal has been denied. The performance of the counsel can be examined by the Court where he is appearing. If the performance of a candidate has been certified to be good by the judicial officer yet Government wants to take a decision not to accept it, they need to at least give reasons. If it is not in the impugned order then at least in the confidential record to trust their action to be fair. Record of the State Government is totally blank on it as even after giving the opportunity, no material could be produced to show any adversity in the record to form the basis to nullify the recommendation of the District Officer or the District Judge/Judge.
46. We need to examine the cases even in reference to para 7.06 & 7.08 of the LR manual. It is for the reason that we have divided cases in two parts. One part belongs to those who were engaged for a period of one year and are asking for first renewal and the other part belongs to those who were granted renewal earlier for a period of three years and are asking for second renewal of three years.
47. According to us, the cases of two sets are different and to be governed by different paras of LR manual. If a candidate has completed one year after first engagement, his case need to be dealt with as per para 7.06 while other having completed three years after first renewal, to be dealt with by para 7.08. The division of the cases in two sets is in reference to the facts narrated by the Senior Counsel appeared for the respondents. It is even for the reason that a different procedure for renewal exist. Para 7.06 of the LR Manual provides for first renewal by the District Officer itself. In case of an unsatisfactory report, it need to be sent to the Government. Para 7.06 (ii) provides that in case of satisfactory work and conduct, the District Officer would furnish a deed of engagement in Form No. 1 for renewal of the term not exceeding three years. The matter need not to be sent to the Government. In the case of unsatisfactory report, it is to be sent to the Government for denial of renewal. In view of the finding aforesaid, the respondents could not explain as to why the cases of those covered by para 7.06 of the LR Manual were sent to the Government when there was no adverse report.
48. So far as the case of second renewal is concerned i.e. after the first renewal for a period of three years, the procedure given under para 7.08 of the L.R. Manual is to be applied. The recommendation of the District Officer is to be sent to the Government thus, the cases for second renewal were rightly sent to the Government. The acceptances and rejection of the recommendation is at the discretion of the Government but has to be judicious. The respondents have failed to produce any material to show justification in exercise of their discretion not to accept the recommendation favourable to the petitioner. When the work undertaken by the petitioner as a Government Counsel has been endorsed by the District Officer with favourable recommendation for renewal, non acceptance of the recommendation by the Government should be for justified reasons and not in the arbitrary manner. It should not even be persuaded by any political reasons. The finding aforesaid has been given in view of the fact that while the matter pertaining to the petitioner was pending consideration for renewal, the respondents engaged District Counsel for a period of fourteen days, as per the recommendation of names of the Minister concerned. It was not by inviting application. No basis has been given to select the candidates. It was not that recommendation for it was made by those who can examine the work and conduct of the counsel concerned. The Apex Court has made a comment about the political involvement in such appointments. it cannot be endorsed or to be accepted.
49. The issue regarding engagement of the counsel for a period of fourteen days was otherwise dealt with by this Court in the case of Santosh Kumar Pandey (supra). The engagement of the counsel for a period of fourteen days, in the manner it was done by the respondents, was not endorsed by this Court. The reference of temporary arrangement for fourteen days has been made to see justification in the action of the respondents to deny renewal. It is otherwise a case where no material could be produced by them to justify their action in any manner though, we are not making scrutiny of their action as an appellate authority but touching the issue in reference to the arguments raised by learned counsel for the petitioners. In a similar case, this Court did not endorse the action of the respondents for denial of renewal and judgment therein was upheld by the Apex Court in the case of Ashok Kumar Nigam (supra). Since the facts and the legal issues involved in these cases are similar, thus, the judgment of the Apex Court in the case of Ashok Kumar Nigam (supra) would apply and for ready reference, paras 12, 13-15 & 17-19 are quoted hereunder:-
"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".
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."
50. The consideration of the case was in reference to paras 7.06 & 7.08 of the LR manual. Finding arbitrariness in the action of the respondents in the same manner, as has been projected by learned counsel for the petitioners in this case, the action of the respondents was interferred. It is true that the last judgment in reference to the issue is in the case of Ashok Kumar Nigam (supra). There the appeal preferred by the State of Uttar Pradesh was allowed but judgment in the case of Ashok Kumar Nigam (supra) has not been dis-approved. In view of above, we find reason to cause interference in the impugned orders which are verbatim the same.
51. The facts however remains that during pendency of the writ petition, the respondents invited applications for engagement of the District Government Counsel/Additional District Government Counsel/Deputy Government Counsel/Assistant Government Counsel. It is stated that few petitioners also applied pursuant to it. They have not been selected. The scrutiny of their candidature was made for fresh engagement and therein petitioners have not been selected thus, a direction for renewal of term may not be given. It is with the statement that in few districts, the engagement of fresh hands has already been made thus, even if a direction is given after causing interference in the impugned order, it should be after saving those who have been engaged and otherwise not a party to the litigation.
52. We need to examine the aforesaid aspect also while issuing direction in these cases. We have already come to the conclusion that the impugned order cannot sustain in the eye of law but it cannot be with a direction to renew the term of the petitioners. It is rather to be considered by the competent authority by applying the procedure given in para 7.06 & 7.08 or in appropriate case under Chapter XXI of the LR manual. The petitioners cannot however be made to suffer thus, a direction is required to be given to the State Government to re-examine the case of each petitioners to take a decision afresh. In case of denial of renewal, the reasons would be recorded in the confidential report. The consideration would be made after applying para 7.06 or 7.08, as the case may be or in a given case under Chapteer XXI of the LR Manual. It would be without any pre-determination and bias. It would be after taking note of the judgment of the Apex Court in the case of Brijeshwar Singh Chahal(supra). The judgment of the Apex Court in that case was in reference to LR Manual of the State of Punjab and Haryana but the ratio propounded therein is to be applied for transparent action. The District Government Counsel represent the Government and ineffective representation may be damaging to the interest of the State Government thus, the directions given by the Apex Court in the aforesaid case would also be taken into consideration while considering the case of each petitioners. It goes without saying that due credence would be given to the recommendation of the District Judge in Form No. 9 for the aforesaid.
53. The engagement of the Government counsel during the pendency of the writ petition would not make these petitions infructuous more-so when the action during the pendency of the writ petition was made subject to its final outcome. In view of above, if the respondents issued advertisement to engage fresh hands, it would not affect the outcome of the petition rather appropriate direction can still be given. The position is to be seen on the date of the order by which action during the pendency of the petition was made subject to its final outcome. In the light of the aforesaid, merely for the reason that in few districts, fresh hands have been engaged. The prayer made in the writ petition cannot be nullified and thereby the argument of learned counsel for the respondents not to allow the writ petition in the changed circumstances cannot be accepted. It cannot be even in reference to other argument regarding consideration of candidature of the petitioners for fresh engagement. No material exist that any of the petitioners applied for fresh engagement. The aforesaid would not even otherwise affect the outcome of the writ as consideration for fresh engagement is on different consideration than for renewal.
54. In view of the discussions made above, we are inclined to accept the writ petition and set aside the impugned order. However a direction to renew the term is not given rather for that, direction is given to the competent authority for fresh consideration. The consideration of each case would be with application of mind. It would be in fair and transparent manner. If the competent authority finds reason to deny renewal, it would be recorded separately in the file, if not to be disclosed in the order but then the material should exist for denial. In case of acceptance of application of renewal, it would be after taking note of the vacancy of District Government Counsel/Additional District Government Counsel/Deputy Government Counsel/Assistant Government Counsel. In case the Government takes a decision to renew and in absence of the vacancies, engagement cannot be made to adjust the petitioners then it would be against the first available vacancy. The direction given above would not affect the engagement, if any made during the pendency of the writ petition and at the same time, it is clarified that merely for that reason, the Government would not reject the candidature of the petitioners for renewal even after it is made out rather it would go with the appropriate arrangement, as given above.
55. In view of the observations/discussions made above, these writ petitions are disposed of.
Order Date :- 19.11.2019 Nitesh (Vikas Kunvar Srivastav, J.) (Munishwar Nath Bhandari, J.)