Patna High Court
Jang Bahadur Singh & Ors vs Sec.Law Dept.Govt.Of Bihar &Or on 29 November, 2012
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha, Ravi Ranjan
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVIEW NO.195 OF 2009
IN
CIVIL WRIT JURISDICTION CASE NO. 18755 OF 2008
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1.JANG BAHADUR SINGH, ADVOCATE, CIVIL COURT, NAWADAH SON
OF LATE KAILASH SINGH, R/O VILLAGE GONAWAN, P.O.
GONAWAN, P.S NAWADAH, DISTRICT NAWADA.
2.RANJEET KUMAR, ADVOCATE, CIVIL COURT, NAWADAH, S/O
LATE RAM LAKHAN PRASAD, R/O VILLAGE BADLU BIGHA, P.S
NARDIGANJ, DISTRICT NAWADA.
3.RAM KUMAR, ADVOCATE, CIVIL COURT, NAWADAH, S/O SRI
BIHARI PRASAD, R/O VILLAGE GOGAN, P.S.NEMDARGANJ, P.S
AKABARPUR, DISTRICT NAWADA.
.... .... PETITIONER/S
VERSUS
1.SECRETARY LAW (JUSTICE) DEPT.GOVT.OF BIHAR, PATNA.
2.THE COMMISSIONER, MAGADH DIVISION GAYA, (BIHAR).
3.THE COLLECTOR, NAWADAH, DISTRICT NAWADA.
4.SRI BHARAT PRASAD, ADVOCATE,ENROLLMENT NO.4507/96,
CIVIL COURT, NAWADA(BIHAR).
.... .... RESPONDENT/S
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Appearance :
For the Petitioner: Mr. Durgesh Nandan, Advocate
For the State : Mr.Lalit Kishore, AAG-I,
Mr. Anshuman Singh, Advocate.
For the respondent: Mr. Pramod Kumar, Advocate,
No. 4. Mr.Ritesh Kumar, Advocate,
Mr.Bimal Kumar Datta,Advocate
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CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
and
HONOURABLE DR. JUSTICE RAVI RANJAN
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA)
Date: 18-12-2012
Heard counsel for the parties.
2. In this application the petitioner have
made a prayer for recall/review of the order dated
25.3.2009passed in C.W.J.C. No. 18755 of 2008 and consequently also consider afresh their prayer in the aforesaid writ application.
3. Learned Counsel for the petitioner at the Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 2 outset has prayed for condonation of delay in filing of this review application by referring to the facts mentioned in this application. This Court in fact for the purposes of condoning the delay in filing this application has also taken into consideration that the order sought to be reviewed dated 25.03.2009 passed in C.W.J.C No. 18755 of 2008 was subsequently made subject matter of Special Leave Petition, S.L.P No. 11879 of 2009 before the Apex Court which was withdrawn by the petitioners on 15.05.2009 with a leave to file this review application and thereafter this review application was filed on 15.07.2009. Thus the delay in filing of this review application being well explained is hereby condoned specially when the respondent-opposite parties in pursuance of notice issued by this Court on 21.04.2010 in the limitation matter have also filed no counter affidavit objecting to the prayer for condonation of delay in filing of the review application.
4. Coming to the merits of the case, it has to be only noted that the petitioners had earlier filed C.W.J.C No. 18755 of 2008, wherein, they had assailed the order dated 04.12.2008 appointing respondent no.4, Bharat Prasad as Incharge Government Pleader of Civil Court, Nawada under the orders of the Law Secretary of the Government of Bihar dated 04.12.2008. The said application was, however, Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 3 dismissed by an order dated 25.03.2009, which reads as follows:-
"Heard counsel for the parties.
This writ petition relates to appointment of Government Pleader in the District of Nawadah. It is the case of the petitioner that the District & Sessions Judge recommended names of seven persons for appointment of Government Pleader in the District of Nawadah and out of seven names, the Collector of the district forearded the names of five persons and thereafter two more names were sent by the Collector including the name of Bharat Prasad, who was appointed as a the Government Pleader and his name was earlier not consulted with the District & Sessions Judge, and, therefore, his appointment as such is illegal.
Bharat Prasad has been made respondent no.4 in this writ application.
Rule 138 of the Bihar Practice & Procedure Manual (hereinafter to be referred to as "Manual") reads as follows:-
138. Appointments to be made after inviting applications. Whenever the post of Public Prosecutor or Government Pleader or the combined post of Government Pleader and Public Prosecutor becomes vacant, the District Officer shall invite applications for the post four months before the expiry of the term of appointment of the existing incumbent. The District Officer shall consult the District and Sessions Judge about the applications received by him and within two months of inviting the applications, shall submit them with his recommendation through the Divisional Commissioner to the Legal Remembrancer for the orders of Government."
In the present Case, as per the Rules, applications for appointment of Government Pleader were invited and on receipt of the applications for such appointment, the District & Sessions Judge was consulted and names of seven persons were recommended to the Legal Remembrancer of the respective Government. It is the contention of the petitioner that 35 applicants applied for appointment of Government Pleader.
It appears that out of 35 applicants, seven suitable names were forwarded by the Collector to the District & Sessions Judge. It also appears that out of seven names, subsequently, Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 4 two suitable names were recommended including the name of Bharat Prasad, who is respondent no. 4 in this writ application by the Collector of the District in consultation with the District & Sessions Judge for appointment of Government Pleader.
In that view of the matter, we find no merit in this application.
This writ application is, accordingly, dismissed."
5. It is this order which was made subject matter of S.L.P No. 11879 of 2009, wherein, the following order was passed by the Apex court on 15.05.2009:-
"Learned counsel for the petitioner seeks permission to withdraw the petition with liberty to file review petition before the High Court. Permission is granted. The special leave petition is dismissed as withdrawn."
6. Learned counsel for the petitioners while pressing this review application has submitted that there is an apparent error on the face of record in the order of this Court dated 25.03.2009, inasmuch as, the Collector of the Nawada district had never given 7 suitable names to the District and Sessions Judge, Nawada rather he had sent all the 34 (not 35) applications to the District and Sessions Judge, Nawada soliciting his opinion by way of consultation and when 7 names were recommended by the District and Sessions Judge, Nawada, the Collector of Nawada district had dropped two of such names on his own and had replaced them by two names including that of Respondent no. 4 at his own level and the respondent Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 5 no. 4, whose name was never recommended by the District and Sessions Judge, Nawada was initially appointed as Incharge Government Pleader by an order dated 04.12.2008 and later on as a Government Pleader of Nawada district by another order dated 11.01.2010 in complete violation of Rule-138 of Bihar Practice and Procedure Manual (hereinafter referred to as the P.P Manual).
7. Proceeding further learned counsel for the the petitioners has submitted that in fact there was actually no consultation at all between the Collector of Nawada district and the District & Sessions Judge, Nawada as with regard to the name of respondent no. 4, Bharat Prasad in course of his appointment as a Government Pleader of Nawada district. According to learned counsel for the petitioners the whole object of Rule-138 of P.P Manual is to ensure an effective consultation between the Collector of the district and the District and Sessions Judge, but in this case it was not at all followed by the official respondents while appointing respondent no. 4 as a Government Pleader. In this regard he has also placed reliance on a Division Bench judgment of this Court in the case of Sri Mithilesh Prasad Singh vs The State of Bihar through the Secretary Law Deptt & Anr reported in 1979 BBCJ 656.
8. Per contra Mr. Lalit Kishore, learned AAG- Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 6 I while not disputing the apparent error recorded in the order of this Court dated 25.3.2009 in C.W.J.C. No. 18755/2008 has submitted that the writ application filed by the petitioners was itself not maintainable and as such this Court need entertain this review application for going into the question of appointment of respondent no. 4 on the post of Government Pleader. In this regard, his preliminary objection with regard to maintainability of the writ petition is based on the following two grounds:-
(i) The writ application of the petitioners C.W.J.C No. 18755 of 2008 having been filed by the petitioners by way of Public Interest Litigation is not maintainable, inasmuch as, it relates to service matter as with regard to which the Apex Court has consistently laid down a law that the service matter cannot be made subject matter of Public Interest Litigation.
(ii) The three petitioners were not
applicants for the post of Government
Pleader and as such they have no locus
standi to challenge the appointment of
respondent no. 4 on the post of Government Pleader, Nawada.
Learned AAG-I in this regard has placed reliance on the judgments of the Apex court in the cases of:-
(i) Dr. Duryodhan Sahu and Others vs Jitendra Kumar Mishra and Others reported in 1998(7) SCC 273.(ii) Gurpal Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 7 Singh vs State of Punjab and others reported in 2005(5) SCC 136.iii) State of West Bengal and others vs Committee for Protection of Democratic Rights, West Bengal and others reported in 2010(3) 402.
9. Learned AAG-I has also submitted that even on merits the petitioners do not have any case, inasmuch as, from the wording of Rule-138 of P.P. Manual, it would be clear that it is directory in nature and ultimate recommendation for appointment on the post of Government Pleader has to be made by the District Officer (Collector) and thus even if in the process of consultation the District and Sessions Judge, Nawada did not recommend the name of respondent no. 4 for appointment on the post of Government Pleader, it was still well within the domain of the Collector of Nawada district to make his recommendation for appointment of respondent no. 4 on the post of Government Pleader. According to him the word "consultation" in Rule-138 of P.P. Manual does not mean the concurrence and/or approval and thus the opinion of the District and Sessions Judge, Nawada, was not binding on the Collector of the Nawada district.
10. He has also submitted that unlike Section- 24 and 25 Cr.P.C. laying down the norms and manner of appointment of Public Prosecutor and A.P.P/Assistant Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 8 Public Prosecutor which is statutory is nature, the P.P. Manual is only a compilation of executive instructions and thus when only a process of consultation for appointment on the post of Public Prosecutor/Assistant Public Prosecutor is also not the same as that for the post of Government Pleader, the reliance placed by the learned Counsel for the petitioners on a Division Bench judgment of this Court in the case of Mithilesh Prasad Singh (supra) in view of the marked variance in the provisions governing such appointment, is also wholly misconceived. He has also relied on the judgment of the Apex Court in the case of Narendra Chadha and others, vs Union of India and others reported in AIR 1986 SC 638 to support himself that such directory provision made in Rule 138 of P.P Manual will not vitiate the appointment of respondent no. 4 on the post of Government Pleader. The aforesaid submission of learned A.A.G-I was also adopted as a whole by the learned counsel for respondent no. 4 who did not choose to advance his own independent submissions.
11. First of all we would deal with the preliminary objection raised by learned AAG-I. The plea of Mr. Lalit Kishore that since the appointment of Government Pleader is made after inviting application from amongst the eligible advocates and the Government also pays them remuneration as well as Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 9 grants leave under Bihar Service Code would make them Government servant and consequently challenged to such appointment being a service matter cannot be assailed in public interest litigation is not only a cut and dry but a far fetched conclusion and we will have no hesitation in rejecting for more than one reason. Such plea in fact has been made to make the judgments of the Apex Court in the case of Dr. Duryodhan Sahu(supra), Gurpal Singh (supra)and State of West Bengal (supra) applicable holding that in service matter there cannot be any Public Interest Litigation.
12. From a survey of the scheme under P.P. Manual it is apparent, the Government engages its counsels to conduct litigation. They do not form part of any service or cadre. They also do not get any salary rather they are paid remuneration either by way of retainer fee or appearance fee for the cases conducted by them. The category of Government servants or the service enumerated do not include the post of G.P. In this regard, it has to be noted that though the Bihar Service Code does not define government servant it classifies Government servants into two categories namely (i) Gazetted and (ii) non gazetted Government servants. Gazetted Government servant under Rule-18 has been defined as follows:-
"Rule-18. Gazetted Government servant means:-
(i) a member of any of the State services;
Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 10
(ii)any other Government servant holding a post which may be specially declared by the State Government to be a Gazetted post.
A list of the posts specially declared to be gazetted posts is contained in Appendix-2 and a close perusal of Appendix-2 to the Bihar Service Code would make it clear that the post of Government Pleader has not been included therein. Appendix-16 contains as many as 67 class-I State service and 119 class-II State service, it also does not include the post of Government advocate or for that any Law Officer appointed by the State from amongst the advocates in any one of them.
13. Similarly Under Rule-24 of Bihar Service code, the non gazetted posts have also been classified into two categories namely inferior or superior which is based on the criteria of maximum monthly pay as would be evident from the following provisions of Rule-24 of Bihar Service Code:-
"Rule-24 Inferior service means any kind of service which may be specially classed as such by the State Government, and any other kind of service the maximum pay of which does not ordinarily exceed *Rs. 95 a month."
Again Rule-30 of Bihar Service Code defines ministerial servant who are part of non gazetted superior posts which reads as follows:-
"Rule-30. Ministerial servant means a Government servant of a subordinate service whose duties are entirely clerical, and any other class of servants specially defined as Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 11 such by general or special order of the State Government."
It has to be also noted that in the category of Gazetted and non gazetted Government servant including, inferior service, superior service and ministerial service though a large number of post as per the respective appendix-2, 4 and 5 have been identified and named but the same does not contain the name of either Advocate General, Government Advocate or Government pleader.
14. Learned AAG-I, however, had relied on Rule- 193 of Bihar Service Code to contend that since Bihar Service Code also lays down the manner of grant of leave to Advocate General, Government advocate or Government Pleader they would be at least part time government servants if not a full time Government servants. On perusal of Rule-193 of Bihar Service Code, it would however appear that the same relates to Chapter-VI under the heading of leave which has six sections namely, Section-1-conditions of leave, Section-2-special and ordinary leave rules, Section- 3-leave accounts, Section-4-grant of leave, Section- 5-leave salary and Section-6-exceptions. Rule-193 relates to grant of leave to the persons governed by Bihar Service Code but for the Government Pleaders there is already a separate provision of grant of leave under Rule 140, 141 and 142 of the P.P. Manual, Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 12 wherein, they are entitled to get the retainer fees in the event of being granted leave. Thus merely because there has also been some provision incorporated for payment of fees during the leave period of an Advocate General or Government Advocate or Government Pleader under Rule-193 of Bihar Service code that by itself would not make them a Government servant. Rule-193 in fact has to be read with the terms of conditions of Government appointment under chapter-VIII of P.P. Manual. Rule 140 of P.P. Manual deals with leave of absence, Rule-141 deals with privilege leave and Rule-142 deals with leave of absence to the Government pleaders during their normal year of term of appointment of three years. As a matter of fact, on perusal of Appendix-13 to the Bihar Service Code laying down the exhaustive list of 81 sanctioning authorities of leave for the specific category of Government Servant, it would be more than clear that the post of the Government Pleader has not been included and therefore, the mere mention of name of Government Pleader for grant of leave as provided in Rule-193 under the head of exception in Section 6 of Chapter-VI would not make the Government pleader in Bihar to be also a Government servant.
15. The next submission of learned AAG-I that since appointment of Government Pleader in terms of Rule 138 of P.P. Manual is made after inviting Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 13 application through an advertisement followed by selection by the State Government, he has to be treated part of State Service is also misconceived, inasmuch as, such appointment is a tenure appointment for three years by way of professional engagement. In fact this very issue was decided by the Apex Court in the case of State of U.P vs Johrimal reported in 2004(4) SCC 714, wherein, a similar provision alike P.P. Manual in this case came to be considered in relation to appointment of District Counsel or Public Prosecutor in the State of Uttar Pradesh covered by Legal Remembrancer Manual (L.R.Manual). The Apex Court therein, in paragraph no. 37 and 39 had held that such District Counsel or P.P do not hold civil post nor any status is conferred on them, which reads as follows:-
"The Legal Remembrancer Manual clearly states that appointment of a public prosecutor or a district counsel would be professional in nature. It is beyond any cavil and rightly conceded at the Bar that the holder of an office of the public prosecutor does not hold a civil post. By holding a post of district counsel or the public prosecutor, neither a status is conferred on the incumbent.
The appointment of Public Prosecutors, on the other hand, are governed by the Code of Criminal Procedure and/ or the executive instructions framed by the State governing the terms of their appointment. Proviso appended to Article 309 of the Constitution of India is not applicable in their case. Their appointment is a tenure appointment. Public Prosecutors, furthermore, retain the character of legal practitioners for all intent and purport. They, of course, Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 14 discharge public functions and certain statutory powers are also conferred upon them. Their duties and functions are onerous but the same would not mean that their conditions of appointment are governed by any statute or statutory rule."
The same view has also been recently reiterated by the Apex court in a recent judgment in the case of State of Uttar Pradesh and others Vs Rakesh Kumar Keshari and others reported in (2011) 5 S.C.C. 341.
16. Thus on an analysis of aforesaid judgments of Apex Court in the cases of Johrimal (supra) and Rakesh Kumar Keshari (supra) as also on the provisions of P.P. Manual and Bihar Service Code it becomes absolutely clear that lawyers engaged and appointed as Government Pleader alike Public Prosecutor are not Government servants. One of the basic criteria of being a Government servant is receiving monthly salary as would be evidenced from classification made of different types of Government servants in the Bihar Service Code. The Government pleader so appointed, however, does not receive any monthly salary and from the Government notification issued from time to time, it would be clear that they receive either the retainer fee or daily appearance fee. The fee paid to the lawyers including Government Pleader cannot be equated with monthly salary and as such even on the basis of the remuneration being made to the Government pleaders, they cannot be held to be Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 15 Government servant. Additionally, it has to be noted that every Government servant is entitled for retirement benefit i.e. pension, gratuity, leave encashment etc., which is never paid to Government pleader or for that purpose to any other Law Officer appointed amongst the Advocates for conducting the cases on behalf of State.
17. Based on aforesaid analysis of facts and relating to nature of appointment of Government Pleader under P.P. Manual as also in the light of law settled by the Apex Court in the case of Johrimal (supra) and Rakesh Kumar Kesari (supra, we will have no difficulty that the connected writ application filed by the petitioners was not in relation to any State Service matter so as to bar its maintainability by way of Public Interest Litigation (P.I.L). Thus the first preliminary objection raised by learned AAG-I must fail and is accordingly rejected.
18. Coming to the second preliminary objection that the three petitioners being advocates who had not filed their applications in terms of the advertisement issued for the post of Government pleader in Nawada district and as such they could not have assailed the appointment of respondent no. 4 on the post of Government pleader is equally misconceived. Such plea in fact seems to be one of locus standi and the moment we find that the Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 16 Government pleader as prescribed under P.P. Manual discharges public functions and has been assigned a number of power in the matter relating to conducting of the suit and representing the Government in the district Court, his such appointment being public appointment concerning the people in general and litigants in particular has a public element, for which the technical plea of locus standi cannot be invoked.
19. Way back in the case of S.P Gupta vs Union of India and Another reported in AIR 1982 SC 149 popularly known as Judges‟ Transfer Case, such an objection to the plea of locus standi was rejected by the Apex Court explaining that in a Public Interest Litigation any person including a lawyer would be at liberty to bring a case affecting the people at large and therefore, if three advocate-petitioners in the present case have filed a Public Interest Litigation questioning the appointment of Respondent no. 4 on the post of Government Pleader, the same cannot be held to be not maintainable simply because they themselves were not applicants for the post of Government Pleader. Such Public Interest Litigation in fact was also held to be maintainable in the case of R.K Jain vs Union of India and others reported in 1993(4) SCC 119 at the behest of Mr. Jain, a senior advocate of the Supreme Court wherein an issue Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 17 relating to appointment on the post of Chairman of Customs, Excise and Gold Appellate Tribunal (C.E.G.A.T) was gone into and it was held that a public law declaration could be made at the behest of the petitioner Mr. R.K. Jain a public spirited person.
20. In the present case also, in view of Rule-1 of P.P., Manual laying down the Collector to consult Government pleader whenever he proposes to file a suit and that the Government pleader‟s opinion being the pivot for conducting of the Civil Suit instituted at the behest of the State or by the State at the district level and the numerous other responsibility imposed on the Government pleader, there would be no difficulty in holding that the appointment on the post of Government pleader can be questioned by any public spirited person by way of Public Interest Litigation.
21. Thus we also overrule the second preliminary objection on behalf of the State.
22. Coming to the merits of the case, we must take into account that on our perusal of the materials on record, we are of the view that in absence of counter affidavit or production of the records by the State at the earlier instance while disposing of the writ application of the petitioners being C.W.J.C No. 18755 of 2008 by an order dated Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 18 25.02.2009, there has been apparent error on the face of record in holding as follows:-
"In the present Case, as per the Rules, applications for appointment of Government Pleader were invited and on receipt of the applications for such appointment, the District & Sessions Judge was consulted and names of seven persons were recommended to the Legal Remembrancer of the respective Government. It is the contention of the petitioner that 35 applicants applied for appointment of Government Pleader.
It appears that out of 35 applicants, seven suitable names were forwarded by the Collector to the District & Sessions Judge. It also appears that out of seven names, subsequently, two suitable names were recommended including the name of Bharat Prasad, who is respondent no. 4 in this writ application by the Collector of the District in consultation with the District & Sessions Judge for appointment of Government Pleader.
In that view of the matter, we find no merit in this application."
23. We have arrived at this conclusion on perusal of the records and filed of both the office of the Collector of Nawada district as also the records of the Law Secretary, which were produced by learned AAG-I. From file No. X-3/2003-07-08 of the District Legal Section, Nawada relating to appointment on the post of Public Prosecutor/Government Advocate, it is more than clear that in view of the aforesaid order, an advertisement was issued on 18.07.2008 by the collector, Nawada district seeking application for appointment on the post of Government pleader by 04.08.2008. It further appears that on receipt of 34 fresh applications, the Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 19 Collector of Nawada district by his letter dated 05.09.2008 addressed to the District and Sessions Judge, Nawada had requested him to send his opinion by way of a panel of seven applicant advocates for appointment on the post of Government pleader and in this list of 34 Advocates the name of respondent no. 4 was included at serial no. 30. For a better appreciation the letter of the collector of Nawada district dated 05.09.2008 along with its list is also reproduced hereinbelow:-
lekgj.kky;] uoknk ¼ftyk fof/k 'kk[kk½ i=kad 796@fof/k] fnukad 05-09-08 izs"kd] Jh ;ksxsUnz HkDr ¼Hkk0iz0ls0½ ftyk inkf/kdkjh] uoknkA lsok es]a ftyk ,oa l= U;k;k/kh'k] uoknkA fo'k;%& uoknk ftyk ds fy, u;s ljdkjh odhy dh fu;qfDr gsrq ,d vkSj vuq 'kalk lwph Hkstus ds laca/k esAa egk'k;] mi;qZDr fo"k;d fof/k ¼U;k;½ foHkkx fcgkj] iVuk ds i= la[;k 3245@ts0 fnukad 8-7-08 }kjk uoknk ftyk ds fy, u;s ljdkjh vf/koDrk dh fu;qfDr gsrq 7 ¼lkr½ ;ksX; vf/koDrkvksa ds ukeksa dh vuq 'kalk lwfp] ih-ih- eSuqvy dh /kkjk 138 ds vkyksd esa ck;ksMkVk vkidh vuq 'kalk ds lkFk ekaxh x;h gSA ljdkjh odhy dh fu;qfDr gsrq dqy 34 ¼pkSarhl½ vf/koDrkvksa ds vkosnu i= ck;ksMkVk ds lkFk v|ksgLrk{kjh ds dk;kZy; esa izkIr gq, gSaA vr% vuqjks/k gS fd dqy 7¼lkr½ vf/koDrkvksa ds ukeksa dh lwph vu'kalk ds lkFk Hkstus dh d`ik dh tk;A bl lwph esa vuqlwfpr tkfr@tu tkfr@fiNM+k oxZ@vYi la[;d ,oa efgykvksa ds ukeksa dk lekos 'k lekuqikfrd :i ls djus dk d"V fd;k tk;A vuqyXud%& ;FkksifjA dqy 34 ck;ksMkVk fo'oklHkktu g0@& vLi"V ftyk inkf/kdkjh g0@& vLi"V uoknkA pkS/kjh vuUr ukjk;.k Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 20 izHkkjh inkf/kdkjh ftyk fof/k 'kk[kk] uoknk lekgj.kky;] uoknk ¼ftyk fof/k iz'kk[kk½ uoknk ftyk esa ljdkj odhy dh fu;qfDr gsrq fnukad 4-8-2008 rd izkIr ck;ksMkVk dh lwph Øekad vf/koDrk dk uke vf/koDrk dk oxZ@tkfr bUjkSyesUV ua0 1 2 3 4 1 Jh lj;w izlkn ;kno 2266@90 fiNM+k oxZ 2 Jh Hkxoku~ jke 306@1966 rnSo 3 Jh f'kouUnu izlkn 1360@89 rnSo 4 Jh tuknZu izlkn flag 345@80 lkekU; 5 Jh uoy fd'kksj flag 4@1977 rnSo 6 Jh jru dqekj 1112@89 fiNM+k oxZ 7 Jh vtZqu flag 1629@1929 lkekU;
8 Jh rstukjk;.k ;kno 1485@1990 fiNM+k oxZ 9 Jherh jatuk flUgk 5485@1995 lkekU; ¼efgyk½ 10 Jherh js[kk dqekjh 32@99 rnSo 11 Jh v:.k dqekj flUgk &1 680@81 lkekU; 12 Jh jke ukjk;.k izlkn flag 588@86 rnSo 13 Jh ';kenso flag 3549@97 rnSo 14 eks0 odZrqYyk [kkW 3912@95 vYila[;d ¼eqfLye½ 15 Jh vfuy dqekj 4183@95 lkekU;
16 Jh jfoUnz dqekj flUgk 3581@1997 & 17 Jh 'kar 'kj.k 'kekZ 1746@93 lkekU; 18 Jh f'ko jru izlkn 44@83 rnSo 19 Mk0 enu eksgu izlkn flag 3149@95 rnSo 20 Jh bZ'ojh izlkn 'kekZ 998@1989 rnSo 21 Jh jke d`".k izlkn 68@97 fiNM+k oxZ 22 Jh ujsUnz dqekj "kekZ 119@1967 rnSo 1640@1969 23 Jh Hkkjr Hkw"k.k 1086@95 lkekU; 24 Jh vt; dqekj 664@93 fiNM+k oxZ 25 Jh vkse izdk'k pkSjfl;k 1052@83 rnSo 26 Jh vjfcUn dqekj 'kekZ 1406@98 lkekU; 27 eks0 QS;kt vgen 1348@1995 vYila[;d ¼eqfLye½ 28 Jh lfPpnkuUn ?ku";ke 562@98 lkekU; 29 Jh t; izdk'k x`;xs 462@1987 rnSo 30 Jh Hkjr izlkn 4507@1996 vR;Ur fiNM+h 31 Jh jkekdkUr dqekj 5704@95 lkekU; 32 Jh misUnz dqekj 2210@96 rnSo 33 Jherh ef.kizHkk dqekjh 1000@05 fiNM+k oxZ 34 Jh izoh.k dqekj 2544@04 vuqlwfpr tkfr ftyk inkf/kdkjh uoknkA
24. The District and Sessions Judge, Nawada had thereafter sent his recommendation, wherein, he had included the name of 7 persons as would be Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 21 evident from Annexure-2 to this writ application, which, is reproduced herein below:-
fgUnh vuqokn i=kad 97@20008@xks0 izs"kd& vkyksd pUnz izlkn ftyk ,oa l= U;k;k/kh'k] uoknkA lsok es]a ftyk inkf/kdkjh] uoknkA uoknk fnukad 11 flrEcj] 2008 fo'k;& uoknk ftyk ds fy;s u;s ljdkjh odhy dh fu;qfDr gsrq vuq'kalk Hkstus ds laca/k esAa egk"k;] mijksDr fo"k;d izkIr vkosnu i= ,oa ok;ksMkVk ds vk/kkj ij uoknk ftyk ds fy;s u;s ljdkjh odhy dh fu;qfDr gsrq ih0ih0 eSuwvy dh /kkjk 138 ds vuqlkj dqy 07 fuEufyf[kr ;ksX; vf/koDrkvksa dh vuq'kalk lwfp Hksth tkrh gSA dzekad vf/koDrk dk uke bUjkSyesUV tkfr 1 Jh lj;w izlkn ;kno 2266@90 fiNM+k oxZ 2 Jh Hkxokujke 987@68 ** 3 Jh vtqZu flag 1629@69 lekU;
4 Jh jked`".k izlkn 68@97 fiNM+k oxZ 5 Jhefr jatuk flUgk 5485@95 lekU; ¼efgyk½ 6 Jh ujsUnz dqekj 'kekZ 119@67 fiNM+k oxZ 7 Jh eks0 Qs;kt vgen 1348@95 vYila[;d ¼ewfLye½ fo'oklHkktu ,-lh- izlkn] ftyk ,oa l= U;k0] uoknkA izfrfyfi& lfpo fof/k ¼U;k;½ foHkkx] fcgkj ljdkj] iVuk dks lwpukFkZ ,oa vko';d dk;Zokgh gsrw izsf"krA g0@& ftyk ,oa l= U;k0] uoknkA
25. On receipt of this recommendation of the District and Sessions Judge, Nawada the Collector of Nawada district by his letter dated 26.09.2008 in terms of Rule 138 of P.P. Manual had sent his recommendation to the Commissioner, Magadh Division wherein, he had made two changes in the aforesaid recommendation of the District and Sessions Judge, Nawada dated 11.09.2008 by dropping two of the names recommended by the District and Sessions Judge, Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 22 Nawada namely Sri Bhagwan Ram and Sri Krishna Prasad and in their place had replaced them by including names of one Sri Om Prakash Chaurasia and the other Sri Bharat Prasad respondent no. 4. This letter of the Collector of Nawada district dated 26.09.2008 being very important is also quoted hereinbelow:-
lkekgj.kky;] uoknk ¼ftyk xksiuh; 'kk[kk½ i=kad vLi"V@xks0 izs'kd] ;ksxsUnz HkDr ¼Hkk0iz0ls0½ ftyk inkf/kdkjh] uoknkA lsok es]a vk;qDr] ex/k izeaMy] x;kA 26-09-2008 fo'k;%& uoknk ftyk ds fy, u;s ljdkjh odhy dh fu;qfDr gsrq ,d vkSj vu'kalk lwph Hkstus ds laca/k esAa izlax% fof/k ¼U;k;½ foHkkx] fcgkj] iVuk dks i=kad 3245@ts0] fnukad 08 tqykbZ] 2008 bZ0A egk"k;] mi;qZDr fo"k;d uoknk ftyk ds fy, u;s ljdkjh odhy dh fu;qfDr gsrq vf/koDrkvksa ls vkosnu i= ,oa ck;ksMkVk vkeaf=r fd;k x;k FkkA izkIr vkosnu i= ,oa ck;ksMkVk layXu dj Hkstrs gq;s ftyk ,oa l= U;k;k/kh'k] uoknk ls ;ksX; vf/koDrkvksa dh vuq'kalk lwph Hkstus gsrq vuqjks/k fd;k x;k FkkA ftyk ,oa l= U;k;k/kh'k] uoknk ds i=kad 97@2008] fnukad 11-9-2008 }kjk 7 ¼lkr½ ;ksX; vf/koDrkvksa dh vu'kalk lwph izkIr gqbZ gSA bl lwph ds dzekad 4 ij vafdr Jh jked`".k izlkn bujkWyesVa ua0 68@97 dh fu;qfDr orZeku esa vij yksd vfHk;kstd ds in ij dh x;h gSA bl vuq'kaflr lwph esa vuqlwfpr tkfr ,oa vfr fiNM+k oxZ ds vf/koDrkvksa dk uke ugha gSA vr,o mi;qZDr ifjis{; esa ftyk ,oa l= U;k;k/kh'k] uoknk dh vuq'kalk esa vkaf'kd l'kks/ku djrs gq;s fof/k ¼U;k;½ foHkkx] fcgkj] iVuk ds izklafxd i= esa of.kZr funs'k ds vkyksd esa ih0ih0 eSuqvy dh /kkjk 138 ds vuqlkj dqy 7 ;ksX; vf/koDrkvksa dh lwph uhps vafdr djrs gq, ,oa ck;ksMkVk layXu dj Hkstrs gq;s vuqjks/k gS fd bls vuq 'kalk lfgr fof/k ¼U;k;½ foHkkx] fcgkj] iVuk dks Hkstus dh d`ik dh tk;sA dzekad vf/koDrk dk uke bUjkSyesUV ua0 tkfr@oxZ 1 2 3 4 1 Jh lj;w izlkn ;kno 2266@90 fiNM+k oxZ 2 Jh vkseizdk'k pkSjfl;k 1052@98 fiNM+k oxZ 3 Jh Hkjr izlkn 4507@95 vfr fiNM+k oxZ 4 Jh ujsUnz dqekj 'kekZ 119@1967 fiNM+k oxZ 1640@1969 5 eks0 Qs;kt vgen 1348@1955 vYila[;d 6 Jh vtqZu flag 1629@69 lkekU;
7 Jherh jatuk flUgk 5485@1995 lekU; ¼efgyk½ fo'oklHkktu g0@& vLi"V Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 23
26. Thereafter the Commissioner of Magadh Division by his letter dated 01.11.2008 had forwarded the recommendation approving the recommendation made by the Collector of Nawada district vide his letter no. 405 dated 01.11.2008 to the Law Secretary for processing and taking a final decision as with regard to appointment on the post of G.P. Nawada, under the orders of the State government. From the file of the Law Department, it would also transpire that on receipt of the said letter of the Commissioner dated 01.11.2008, the matter was placed by the Law Secretary before the Cabinet Minister of Law of the State Government. The Law Secretary in his note to the minister on 19.11.2008 had recorded as follows:-
i`"B 42&44fV0 dk d`i;k voyksdu djuk pkgsx a sA uoknk ftyk ds fy, ljdkjh odhy dh fu;qfDr gsrq ftyk inkf/kdkjh] uoknk ls izkIr vf/koDrkvks dh vuq'kalk lwph vk;qDr] ex/k izeaMy] x;k }kjk izkIr gqbZ gS ¼i`"B 155&153@i0½ nz"VO;½ ftlij ftyk ,oa l= U;k;k/kh'k dh lgefr izkIr gS ¼i`"B 127@i0½ nz"VO;½ Hkonh; fdlh ,d vf/koDrk dks ljdkjh odhy ds :i esa fu;qfDr gsrq p;u djuk pkgsxa sA g0@& ¼jktsUnz dqekj feJ½ fof/k ijke'khZ] fcgkjA 19-11.08
27. From perusal of the file of the Law Department it however becomes clear that at page-
153/C to 155/C of the file the letter of the Commissioner of the Magadh Division dated 01.11.2008 contained only the recommendation of the Collector of the Nawada district dated 29.09.2008, and the Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 24 aforesaid letter by way of recommendation of the District and Sessions Judge, Nawada dated 11.09.2008 containing the names of seven advocates was not placed by the Law Secretary before the Minister. The reference by the Law Secretary in his aforesaid note to Cabinet Minister of Law to page 127/n to the concurrence or consent or approval of the District and Sessions Judge, Nawada at page 127/n was itself factually incorrect and infact a misnomer, inasmuch as, the letter placed in the file at page 127/n reads as follows:-
Confidential No. 104/2008 From Alok Chandra Prasad, District & Sessions Judge, Nawada.
To Sri Rajendra Kumar Mishra, Govt.Secretary(Legal) (Justice)Deptt., Govt. of Bihar, Patna.
Dated, Nawada, the 29th of Sept., 2008 Ref.:Memo No. 4665-J, Patna dt.23.09.2008.
Sub.:Recommendation list of Advocates for appointment of Govt. Pleader for Nawada District.
Sir, With regard to the letter under reference on the subject noted above I have already sent the list of seven Advocates for appointment of Government Pleader, Nawada to the Collector, Nawada vide this office confidential letter no. 97/2008 dated 11.09.2008.
This is for favour of information and needful.
Yours Faithfully District & Sessions Judge, Nawada Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 25 29.09.2008
28. It would thus become clear that the Law Secretary without even examining the recommendation of seven names in letter of District and Sessions Judge Nawada dated 11.09.2008 as mentioned in his subsequent letter dated 29.9.2008 had placed the whole panel of seven advocates including that of Respondent no. 4 as recommended by the Collector Nawada district in his aforesaid letter dated 26.9.2008, treating subsequent letter of the District and Sessions Judge dated 29.09.2008 as his concurring recommendation to the seven names recommended by the Collector, Nawada. The contents of the aforesaid letter dated 29.9.2008, as quoted above, however would itself reveal that there was no consultation between the Collector, Nawada and District and Sessions Judge, Nawada on the inclusion on the name of Respondent no. 4. Thus it was the note placed by the Law Secretary on 19.11.2008 which had created an erroneous impression before the Law Minister that the entire recommendation in the list of seven advocates including that of Respondent no. 4 submitted by the Collector of Nawada district dated 26.9.2008 had the concurrence/consent/approval of the District and Sessions Judge, Nawada. This Court would not like to say anything more in this regard but this is all by way of consultation between the Collector and the Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 26 District and Sessions Judge, Nawada which had taken place in the process of appointment of Respondent no.
4 on the post of Government Pleader. Such a mistake on the part of the Law Secretary in relying and treating the aforementioned letter dated 29.09.2008 of District and Session Judge, Nawada may be inadvertent but none the less it had created an impression that the names forwarded by the Commissioner of Magadh Division with the recommendation of the Collector of Nawada district including that of Respondent no. 4 was with concurrence to the District and Sessions Judge, Nawada.
29. What is equally surprising for this Court to find that actually the copy of the recommendation of the District and Sessions Judge, Nawada contained in his letter no. 97/2008 dated 11.09.2008, a copy whereof has in fact been produced by the petitioner by way of Annexure-2 and have been also reproduced by us is not at all available either in the file of the Law Department or in the file of Collector of Nawada district which by itself goes to make it clear that when the Cabinet Minister took a decision to appoint respondent no. 4 on the post of Incharge Government Pleader Nawada on 25.11.2008 he was wholly unaware that of the seven names recommended by the Collector on 26.9.2008 as Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 27 forwarded by the Commissioner of Magadh Division in their respective letters dated 26.09.2008 and 01.11.2008 the name of Respondent no. 4 was not included in the recommendation made by the District and Sessions Judge, Nawada in his panel of seven advocates. In view of the fact that the name of respondent no. 4 was not even recommended by the District and Sessions Judge, Nawada, we will have no difficulty in holding that the appointment of respondent no. 4 on 04.12.2008 as Incharge Government Pleader was made without completing the process of consultation with the District and Sessions Judge, Nawada as envisaged in Rule 138 of P.P. Manual.
30. The matter infact did not rest there inasmuch we have also found from the records and files of the Law Department that the aforesaid appointment of respondent no. 4 as Incharge Government Pleader under the orders of the cabinet minister dated 25.11.2008 was subsequently sent for approval of Council of Ministers in terms of Rule 32 of Rules of Executive Business. The file itself goes to show that since incharge arrangement on the post of Government Pleader Nawada for the purpose of appointment of regular Government Pleader had to be approved by the Council of Ministers, an agenda note was prepared by the Law Secretary and placed on 17.08.2009 after more than eight months from the date Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 28 respondent no. 4 was made Incharge G.P. In such agenda note dated 17.08.2009 the Law Secretary had recorded as follows:-
fcgkj ljdkj fof/k foHkkx AA eaf=ifj"kn~ dh Lohd`fr gsrq lays[kAA xksiuh; fo"k; % uoknk ftyk esa u;s ljdkjh odhy ds in ij Jh Hkjr izlkn vf/koDrk] O;ogkj U;k;ky;] uoknk dks fu;qDr fd;s tkus ds laca/k esAa uoknk ftyk ds ljdkjh odhy Jh lj;w izlkn ;kno] ftudh fu;qfDr fof/k foHkkx }kjk fnukad 2-6-2004 dks rhu o'kZ ds fy;s dh x;h Fkh ,oa ftudh dkykof/k fnukad 1-6-2007 dks lekIr gks x;hA ljdkj }kjk izHkkjh ljdkjh odhy ds :i esa Jh Hkjr izlkn] dks ukfer fd;s tkus ds QyLo:i os izHkkjh ljdkjh odhy ds :i esa vHkh dk;Zjr gSA 2- iz'u xr ftyk ds u;s ljdkjh odhy dh fu;qfDr ds fufer ftyk n.Mkf/kdkjh] uoknk us ftyk ,oa l= U;k;k/kh'k uoknk ds ijke'kZ ls fuEukafdr vf/koDrkvksa ds ukeksa dh vuq'kalk fd;k gS] ftlls vk;qDr] ex/k izeaMy x;k lger gSA 1- Jh lj;w izlkn ;kno 2- Jh vkse izdk'k pkSjfl;k 3- Jh Hkjr izlkn 4- Jh ujsUnz dqekj 'kekZ 5- eks0 QS;kt vgen 6- Jh vtquZ flag 7- Jherh jatuk flUgk 3- bl ftyk esa ekeys dh izd`fr] vf/koDrk dh fu'Bk] vuqHko] ;ksX;rk] dk;Zd'kyrk rFkk vU; igyqvksa ij fopkj djrs gq, lwph ds Øe la0 3 ¼rhu½ ij ukfer vf/koDrk] Jh Hkjr izlkn] dks uoknk ftyk dk ljdkjh odhy fu;qDr djuk loZFkk mfpr ,oa okaNuh; izrhr gksrk gSA vr% izLrko gS fd Jh Hkjr izlkn] dks uoknk ftyk dk ljdkjh odhy fu;qDr fd;k tk;A 4- budh fu;qfDr izHkkjh ljdkjh odhy ds :i esa in xzg.k dh frfFk ls rhu o"kksZ ds fy;s izHkkoh jgsxhA 5- fu;qDr ljdkjh odhy dks jkT; ljdkj }kjk fu/kkZfjr izfr/kkj.k 'kqYd ,oa nSfud lquokbZ 'kqYd ns; gksxk] ftlesa ljdkjh dks dksbZ vfrfjDr foÙkh; Hkkj ogu ugha djuk iM+x s kA 6- lays[k esa ekuuh; fof/k ea=h dk vuqeksnu izkIr gSA 7- lays[k dh mi;qZDr dafMdk 3 esa fufgr izLrko ij eaf=ifj"kn~ dh Lohd`fr rn~uqdwy visf{kr gSA g0 vLi"V ¼jktsUnz dqekj feJ½ 4-8-2009 ljdkj ds lfpo] fcgkjA Kki la0 v 80@ih ¼ihv½ 3179@ ts0 iVuk fnukad 17-8-09 1-026@07 izfrfyfi %& 45 ¼iSrkyhl½ vfrfjDr izfr;ksa ds lkFk eaf=eaMy lfpoky; ,oa leUo; foHkkx] fcgkj] iVuk dks eaf=ifj"kn~ dh vkxkeh cSBd esa lfEefyr djus gsrq izsf"krA g0 vLi"V ¼jktsUnz dqekj feJ½ 4-8-2009 ljdkj ds lfpo] fcgkjA
31. Surprisingly, on the same date i.e. Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 29 4.08.2009 a press note, even without approval of the Council of Ministers to the appointment of respondent no. 4 as a regular Government Pleader was signed by the Law Secretary which reads as follows:-
fcgkj ljdkj fof/k foHkkx izsl uksV uoknk ftyk esa fu;qDr ljdkjh odhy Jh lj;w izlkn ;kno dh fu;qfDr dh dkykof/k lekIr gks tkus ds QyLo:i jkT; ljdkj }kjk vk;qDr ex/k izeaMy] x;k }kjk izkIr vuq'kalk lwph esa ls Jh Hkjr izlkn] vf/koDrk] O;ogkj U;k;ky;] uoknk dks bl ftyk ds fy;s izHkkjh ljdkjh odhy fu;qDr fd;k x;ka budh dk;Z {kerk ,oa ;ksX;rk dks ns[krs gq, jkT; ljdkj }kjk Jh izlkn dks gh buds izHkkjh ljdkjh odhy ds :i esa inxzg.k dh frfFk ls rhu o"kksZ ds fy;s bl ftyk ds fy;s ljdkjh odhy fu;qDr djus gsrq fu.kZ; fy;k x;kA g0 vLi'V ¼jktsUnz dqekj feJ½ 4-8-2009 ljdkj ds lfpo] fcgkjA
32. In fact from the file it also becomes clear that it was only in the meeting of council of ministers held on 22.12.2009 that the agenda note dated 17.08.2009 after more than four months of aforesaid press release appointing respondent no. 4 permanently as the Government Pleader that the same had received approval of Council of Minister as would be evidenced from the following noting made the file of Law department by the Joint Secretary of the Cabinet Co-ordination Department:-
fof/k foHkkx
----------------------
fof/k foHkkx ds lays[k Kkikad 3179 fnukad 17-8-09 esa lfUufgr izLrko eaf=ifj"kn dh cSBd fnukad 22-12-09 esa en la[;k 15 ds :Ik esa lfEefyr fd;k x;kA cSBd dh dk;Zokgh ds vorj.k ds lkFk vkidh lafpdk ykSVk;h tkrh gSa 15- uoknk ftyk esa u;s ljdkjh odhy ds in 15- Lohd`rA ij Jh Hkjr izlkn] vf/koDrk] O;ogkj U;k;ky;] uoknk dks fu;qDr fd;s tkus ds laca/k esa ¼chjsUnz dqekj flag½ Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 30 ljdkj ds la;qDr lfpo eaf=eaMy lfpoky; foHkkx
33. This is how the appointment of respondent no. 4 was made on the post of Government Pleader, Nawada and he had been allowed to continue for his term of three years. From the materials on record we have therefore no hesitation in coming to a conclusion that there was no consultation at all between the Collector Nawada and the District and Sessions Judge Nawada in the process of appointment of Respondent no. 4 on the post of Government Pleader Nawada.
34. In view of our aforesaid discussion we have no option but to hold that there is an apparent error on the face of record in the earlier order of this court dated 25.03.2009 passed in C.W.J.C No. 18755 of 2009 as with regard to appointment of respondent no. 4, inasmuch as, it has been incorrectly recorded therein that 7 suitable names were forwarded by the Collector of the Nawada district to the District & Sessions Judge, Nawada. As noted above the Collector of the district had never recommended 7 names to the District & Sessions Judge rather had only sent applications of all 34 applicants and had asked his recommendation by way of panel of 7 names to be sent back which in the opinion of the District & Sessions Judge were the most suited Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 31 amongst the 34 applicants for appointment on the post of Government pleader. In fact there is yet another apparent error on the face of record, wherein, in the earlier order dated 25.03.2009 sit has been recorded that out of those 7 names in the list of Collector as forwarded to the District & Sessions Judge, 2 suitable names including the name of respondent no. 4 were recorded in consultation with the District & Sessions Judge for appointment on the post of Government pleader. The fact in fact as noted above is otherwise, inasmuch as, the name of respondent no.
4 was never included in the 7 names submitted by the District & Sessions Judge on screening of 34 applications sent to him by the Collector of the district. Thus, there would be no difficulty in coming to the conclusion that both on account of non filing of the counter affidavit as also non production of the record on the earlier occasion an error apparent on the face of record was committed by this Court while dismissing the writ application of the petitioners by an order dated 25.03.2009.
35. It is the validity of such appointment of respondent no. 4, which has been assailed by the petitioners primarily on the ground of violation of the provisions made under Rule-138 of P.P. Manual and their main attack is based on the ground that there was no consultation between the Collector, Nawada and Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 32 the District and Sessions Judge, Nawada in the matter of appointment of respondent no. 4 on the post of Government Pleader. We have already noticed teh submission of the parties on this aspect and based on the following two main issues would eventually emerge for our consideration:-
(i) Whether consultation between the Collector of the district and the District and Sessions Judge as prescribed under Rule-138 of P.P. Manual for appointment on the post of Government Pleader is mandatory or directory?
(ii) Whether there was consultation between the Collector of the Nawada district and the District & Sessions Judge, Nawada for appointing respondent no. 4 as a Government pleader and whether the mere sending of letter dated 05.09.2008 by the Collector of the Nawada district along with applications and bio-data of 34 applicants soliciting a panel of 7 names with the recommendation of the District & Sessions Judge and the consequential letter of the District & Sessions Judge dated 11.09.2008 recommending the names of 7 persons other than that of respondent no. 4 would amount to an effective consultation in the process of appointment of respondent no. 4 on the post of Government pleader in terms of Rule 138 of P.P Manual.
36. For answering the aforesaid two questions it would be useful to quote Rule 138 of P.P Manual, which reads as follows:-
138. Appointments to be made after inviting applications. Whenever the post of Public Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 33 Prosecutor or Government Pleader or the combined post of Government Pleader and Public Prosecutor becomes vacant, the District Officer shall invite applications for the post four months before the expiry of the term of appointment of the existing incumbent. The District Officer shall consult the District and Sessions Judge about the applications received by him and within two months of inviting the applications, shall submit them with his recommendation through the Divisional Commissioner to the Legal Remembrancer for the orders of Government."
37. Learned counsel for the petitioners has submitted that the use of expression "shall" in rule 138 of P.P. Manual in the context of consultation between the Collector of the district and the District & Sessions Judge would leave nothing for speculation, that such appointment of Government pleader being made for the different Courts in the district, the opinion of the District & Sessions Judge being the head of the judicial fraternity of the district would be binding and thus also mandatory. In this regard, learned counsel for the petitioners has also sought parity by referring to the provisions of Section-24 of the Code of Criminal Procedure and has dwelt upon the aspect that consultation with the District & Sessions Judge for appointment on the post of Government pleader has been held to be mandatory in Division Bench judgment of this Court in the case of Sri Mithilesh Prasad Singh (supra).
38. On the other hand Mr. Lalit Kishore, Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 34 learned AAG-I has submitted that the provision of consultation in Rule-138 of the P.P. Manual is directory in nature, inasmuch as, the use of the word "shall" therein is definitely not always determinative of its being mandatory. In this regard, he has placed reliance on the judgment of the Apex Court in the case of Narendra Chadha (supra).
39. In our considered opinion for determining the issue as to whether a particular provision such as one for „consultation‟ is mandatory or not, the words used in the statute, the nature of concerned duty and responsibility, the context in which the provision appears and its object has to be kept in mind. The very fact that there is a provision for a prior consultation in the process of appointment of Government pleader between the Collector of the district and the District & Sessions Judge would go a long way that a fair procedure has been laid down in the process of appointment of Government pleader who has to conduct the cases of the Government in the district Courts. It is also well recognized in law that if the statute lays down the manner of doing something, it must be done in that manner or not at all.
40. In this regard, it has to be kept in mind that the decision for ultimate appointment has to be taken by the State Government and not by the Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 35 Collector who has to only make his recommendation after holding consultation with the District & Sessions Judge. The use of the word "shall" therefore, in the context of consultation between the Collector of the district and the District & Sessions Judge has a far reaching consequence, inasmuch as, the State Government intends to select the best person for his being appointed on the post of Government pleader and who can be in a more better position than the District & Sessions Judge to give his advice as with regard to a lawyer being suitable to assist the Court in performance of the duty of the Government pleader? The use of word "shall" therefore, is indicative that the State Government intends to have the opinion of the District and Sessions Judge for selecting the best amongst the eligible advocates for appointment on the post of Government pleader. The Collector of the district does not have the requisite machinery or the expertise to adjudge the quality of an advocate for dawning the responsibility of the Government pleader and i.e., how the Rule intends the recommendation to be sent to the State Government after consultation of the District & Sessions Judge, the head of the judicial fraternity of the district.
41. The nature of duty of the post of Government pleader as specifically defined in the Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 36 P.P. Manual as with regard to the Government pleader being the representative of the Government in conducting the litigation on behalf of Government would itself require selecting and appointing the best person available out of the eligible advocates. Thus to achieve the object of stipulated consultation between the Collector of the district and the District & Sessions Judge there has to be effective consultation before selection and appointment on the post of Government pleader. The consultation with the District & Sessions Judge has therefore, been envisaged by the framers of the Rule (P.P. Manual) with an obvious aim to make selection and appointment of Government pleader in a transparent and fair manner. The District & Sessions Judge has the expertise and the experience to render intensive and exhaustive opinion and inspect in such consultation in respect of advocates who will be considered for appointment on the post of Government pleader. At this place it would be also significant to note here that such scheme prevailing in the State of Bihar was applauded and appreciated by the Apex Court in the case of Mundrika Prasad Singh vs The State of Bihar reported in (1979) 4 SCC 701, wherein, it was held as follows:-
"It is heartening to notice that the Bihar Government appoints these lawyers after consultation with the District Judge. It is Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 37 in the best interest of the State that it should engage competent lawyers. Without hunting for political partisans regardless of capability. Public offices-and Government Pleadership is one- shall not succumb to Tammany Hall or subtler spoils system, if purity in public office is a desideratum. After all, the State is expected to fight and win its cases and sheer patronage is misuse of power. One effective method of achieving this object is to act on the advice of the District Judge regarding the choice of Government Pleaders."
42. As a matter of fact when rule 138 of P.P. Manual prescribes and in fact ordains the Collector of the district to send all the applications received for the post of Government pleader for seeking opinion of the District & Sessions Judge in the process of consultation, he is under an obligation to also consider such recommendation made by the District & Sessions Judge before sending his recommendation to the State Government. In this regard it would be useful for us to quote the following passages of the judgment of the Apex Court in the case of Johrimal (supra):-
"Consultation 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. 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 Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 38 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.
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."
43. It is true that the use of expression "shall" is not determinative and even where this word is used by the legislature generally the provision is treated as directory if the significance of disregard of provision is not provided. This proposition is, however, not absolute and is only one of the known test for deciding whether the provision is mandatory or directory. By now it is also well settled that the word "shall" is generally taken in a mandatory sense but sometime the entire provision may not be treated as mandatory considering the entire context of the scheme. The Apex Court in the case of State of U.P vs. Manbodhan Lal Srivastava reported in AIR 1957 SC 912 has held that relevant consideration should not be the only word used but the scheme of the statute, intended benefit to public and the material danger to the public by the contravention of the provision Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 39 under consideration.
44. In this background the reliance placed by learned AAG-I in the case of Narendra Chadha (supra) seems to be out of place, inasmuch as, the Apex court in that case having regard to Rule-16 of Indian Economic Service Rules 1961 laying down the provision of power to relax any of the provision of Rule-16 had held that departure was in exercise of the power of relaxing the quota rule conferred on the controlling authority. In fact it was in view of Rule-16 that Apex Court had held that once there is power to relax the mandatory quota rule, the appointments made in excess of the quota from any given source would not be illegal or invalid but would be valid and legal. Such is however not the facts in the present case, inasmuch as, there is no similar Rule-16 vesting power to the Collector or the State Government to relax the provision of consultation under the matter of appointment on the post of Government pleader without making consultation with the District & Sessions Judge.
45. Based on our aforesaid discussion and conclusion we must hold that the provision of consultation between the Collector and the District and Sessions Judge for the purpose of appointment of Government pleader under Rule 138 of P.P. Manual is mandatory. We in fact will have no hesitation in Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 40 holding that alike in the matter of appointment on the post of Public Prosecutor, there has to be effective consultation between the Collector of the district and the District & Sessions Judge and to that extent the reliance placed by learned counsel for the petitioner on the judgment of Division Bench of this Court in the case of Mithilesh Prasad Singh (supra) is apt and appropriate, wherein, it has been held that an effective consultation on any particular name of an advocate sought to be appointed as Public Prosecutor is mandatory and in absence thereof such appointment becomes vulnerable and can be set aside by the Court.
46. The next question would be as to whether there was a consultation in the appointment of respondent no. 4 as required under Rule 138 of P.P. Manual? In this regard learned counsel for the petitioners has submitted that in the appointment of respondent no. 4 there was no consultation at all, inasmuch as, when 34 applications were sent by the Collector of the district on 5.9.2008 soliciting the recommendation of the District & Sessions Judge as with regard to sending his recommendations to panel of 7 names, and when the District & Sessions Judge in his letter dated 11.9.2008 while sending a panel of seven advocates did not recommend the name of respondent no. 4, the Collector of the district could Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 41 not have included the name of respondent no. 4 in his recommendation sent to the State government through the Divisional Commissioner without bringing the same to the notice of District and Sessions Judge, Nawada. In this regard, learned counsel for the petitioners has also submitted that if the name of a particular advocate was not included in the recommendation made by the District & Sessions Judge as was the case of respondent no. 4, and if the Collector of the district was still sanguine about his inclusion to respondent no. 4, he before sending his recommendation to the State government was required to obtain the views by the District & Sessions Judge which alone could have amounted to effective consultation. In this regard, he has relied again on the judgment of the Division Bench of this Court in the case of Mithilesh Prasad Singh (supra).
47. On the other hand learned AAG-I has submitted that once all the applications including that of respondent no. 4 was placed before the District & Sessions Judge by the Collector of the district, the process of consultation by the Collector had already begun and if therefore, the name of respondent no. 4 was not included in the recommendation of the District & Sessions Judge, it cannot be said that the Collector could not have recommended the name of respondent no. 4 for his Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 42 appointment on the post of Government pleader. According to learned AAG-I consultation in the context of Rule-138 P.P. Manual would merely amount to soliciting opinion of the District & Sessions Judge which was not binding on the Collector of the district. To buttress his such submission and in order to wriggle out of the ratio laid down by the Division Bench of this Court in the case of Mithilesh Prasad Singh (supra), he has sought to distinguish the provision of Rule-138 of P.P. Manual along with Section-24 Cr.P.C. According to him while there is a mandatory provision for appointment of public prosecutor who could be appointed only with a prior consultation of the District & Sessions Judge, there is no such requirement in case of appointment in the case of Government pleader.
48. In our opinion, there is no merit in such submission of Learned AAG-I, inasmuch as, on a careful comparative perusal of both the provision of Rule-138 of P.P Manual vis a vis Section-24 of Cr.P.C, it would appear that they are virtually same and identical as would be apparent from the following manner and mode of P.P. Manual and Government Pleader:-
138.Appointments to 24.Public be made after Prosecutors-(1)------
inviting (2)------------------
applications:- (3)For every
Whenever the post of district, the State
Public Prosecutor or Government shall
Government Pleader or appoint a Public
Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 43 the combined post of Prosecutor and may Government Pleader also appoint one or and Public more Additional Prosecutor becomes Public Prosecutors vacant, the District for the district:
Officer shall invite Provided that the applications for the Public Prosecutor or post four months Additional Public before the expiry of Prosecutor appointed the term of for one district may appointment of th be appointed also to existing incumbent. be a Public The District Officer Prosecutor or an shall consult the Additional Public District & Sessions Prosecutor, as the Judge about the case may be, for applications received another district.
by him and within two (4)The District
months of inviting Magistrate shall, in
the applications, consultation with the
shall submit them Sessions Judge,
with his prepare a panel of
recommendation names of persons, who
through the are, in his opinion,
Divisional fit to be appointed
Commissioner to the as Public Prosecutors
Legal Remembrancer or Additional Public
for the order of Prosecutors for the
Government. district.
(5) NO person shall
be appointed by the
State Government as
the Public Prosecutor
or Additional Public
Prosecutor for the
district unless his
name appears in the
panel of names
prepared by the
District Magistrate
under sub-section(4).
49. A bare simultaneous reading of Rule-138 of P.P. Manual and Section-24(4) of the Cr.P.C will leave nothing for speculation that earlier in the State of Bihar both the P.P. Manual and the Government Pleader were to be appointed in terms of Rule-138 of P.P. Manual and after enactment of Code Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 44 of Criminal Procedure, 1973 a separate provision for appointment on the post of Public Prosecutor was incorporated under Section 24 of Cr.P.C leaving Rule 138 of P.P. Manual only for appointment on the post of Government Pleader. In both the provisions under Section 24 Cr.P.C and Rule 138 of P.P Manual there is a clear mandate for consultation by the Collector/District Magistrate of the district with the District & Sessions Judge and as such the panel has to be prepared by the Collector/District Magistrate only in consultation with the District & Sessions Judge. It is true that sub-section-5 of Section-24 has also put more stringent clause for appointment on the post of Public Prosecutor unless his name is included in the panel of the District Magistrate but then on a close perusal of Rule-138 of P.P. Manual there is almost similar intendment, inasmuch as, when the order of the State Government has to be obtained in terms of Rule-138 of P.P. Manual for appointment on the post of Government pleader, it is basically the recommendation of the Collector based on the consultation with the District & Sessions Judge which has to be made the basis for appointment on the post of Government pleader. This Court, therefore, does not find any difference in the provisions of Rule-138 of P.P. Manual and Section-24 Cr.P.C.
Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 45
50. Once we reach to the conclusion that both in the appointment of Public Prosecutor under Section-24 of the Code of Criminal Procedure and that of the Government pleader under Rule-138 of P.P. Manual, an effective prior consultation has to be made by the Collector/District Magistrate with the District & Sessions Judge, we will have no difficulty in holding that there was no consultation as with regard to appointment of respondent no. 4 on the post of Government pleader. It is this aspect of the matter which stands settled in the Division Bench judgment of this Court in the case of Mithilesh Prasad Singh(supra):-
"No doubt, it is upto the State Government to appoint any of the persons whose names find place in the panel, but the panel must be prepared by the District Magistrate in consultation with the Sessions Judge. I, however, hasten to add that this does not mean that the panel can be prepared only of names, over which the Sessions Judge and the District Magistrate are agreed, but there must be deliberations between the two on names included in the panel. If the District Magistrate wants to include any name in the panel which does not find place in the recommendation of the Sessions Judge, he is enjoined under sub- section-(3) of Section 24 to consult the Sesssions Judge in respect of that name and to forward the opinion of the Sessions Judge to the State Government. Then only it can be held that the requirement of sub-section (3) has been complied with in letter and spirit...............................
51. In the present case also we are faced with a similar and in fact identical situation, inasmuch as, after the recommendation of the District Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 46 & Sessions Judge, in form of a panel of seven names was sent on 11.9.2008 if the Collector of the district was of the view that the name of respondent no. 4 should have been included in the panel for his being recommended to the State Government, he had to once again revert back to the District & Sessions Judge as with regard to seeking opinion about the competence of respondent no. 4. This however, as noted above has not been done in this case and in fact the Collector of the district on his own had dropped two names as recommended by the District and Sessions Judge and had included the name of respondent no. 4 and another person in his letter dated 26.9.2008 without even allowing the State Government to know that the name of respondent no.4 was not at all included in the list of panel submitted by the District & Sessions Judge.
52. As a matter of fact when the Law Secretary in his note dated 25.11.2008 before the Cabinet Minister as also in the agenda note dated 16.08.2009 had also created misleading impression that the names recommended by the Collector of the Nawada district including that of respondent no. 4 had been also recommended and consented by the District & Sessions Judge, Nawada which was factually incorrect, we will have no difficulty in holding that there was no consultation as with regard to Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 47 respondent no. 4 before his being appointed as a Government pleader.
53. The word "consultation" has fallen for interpretation in a series of decisions of English Court and Apex Court and it has been invariably held that consultation means that, on the one side, the person making consultation must supply sufficient information to the authority who is to be consulted to enable the latter to tender its advice and thus, deliberation is the quintessence of consultation. In this regard it is significant to notice the opinion of Queen‟s Bench expressed by Justice Webster, J. in the case of R.Vs. Secretary of State for Social Services, exparte Association of Metropolitan Authorities (1986) 1 All E.R., 164. wherein, it was held that:-
"But in any context the essence of consultation is the communication of a genuine invitation to give advice and a genuine consideration of that advice.In my view it must go without saying that to achieve consultation sufficient information must be supplied by the consulting to the consulted party to enable it to tender helpful advice. Sufficient time must be given by the consulting to the consulted party to enable it to do that, and sufficient time must be available for such advice to be considered by the consulting party. Sufficient, in that context, does not mean ample, but at least enough to enable the relevant purpose to be fulfilled. By helpful advice, in this context, I mean sufficiently informed and considered information or advice about aspects of the form or substance of the proposals, or their implications for the consulted party, being aspects material to the implementation of the proposal as to Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 48 which the Secretary of State might not be fully informed or advised and as to which the party consulted might have relevant information or advice to offer."
54. The same view has also been followed by the Apex Court in the case of State of J & K V. A.R. Zakki reported in 1992 SC 1546, wherein, it was held as follows:-
"Though Consultation does not mean "concurrence", it postulates an effective consultation which involves exchange of mutual viewpoints of each other and examination of the relative merits of the other point of view. Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views."
55. Yet again the Apex Court in the case of Indian Administrative Service (S.C.S) Assn. V. Union of India, reported in 1993 Supp (1) SCC 730 had held as follows:-
"Consultation is a process which requires meeting of minds between the parties involved in the process of consultation on the material facts and points involved to evolve a correct or at least satisfactory solution. There should be meeting of minds between the proposer and the persons to be consulted on the subject of consultation. There must be definite facts which constitute the foundation and source for final decision. The object of the consultation is to render consultation meaningful to serve the intended purpose. Prior consultation in that behalf is mandatory."
56. In the case of Supreme Court Advocates- on-record Assn. v. Union of India, reported in AIR 1994 SC 268:-
Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 49 "In common parlance, whenever the expression "consultation" is used in connection with lawyers, or with the physician or with the engineer etc. it would mean as seeking opinion or advice or aid or information or instruction."
57. The law regarding "consultation" being well settled as noted above, we in the facts of the present case cannot hold that mere sending of the application of respondent no. 4 along with 34 applications by the collector of Nawada district to the District & Sessions Judge amounted to effective consultation specially when the District & Sessions Judge as requested by the Collector in his letter had sent a panel of seven advocates screened from the 34 applications by excluding the name of respondent no.4. The Collector of the district, therefore, cannot be said to have consulted the District & Sessions Judge as with regard to the respondent no. 4 before recommending his name merely on the basis of sending of application of respondent no. 4 along with other 33 applications to the District and Sessions Judge, Nawada.
58. We have also discussed and held on the basis of the materials on record that the letter sent by the Collector of Nawada district forwarding 34 applications including that of respondent no. 4 by soliciting panel of 7 advocates and its reply by the District & Sessions Judge by forwarding a panel of 7 advocates without the name of respondent no. 4 did not Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 50 amount to any consultation either in fact or in law as with regard to the appointment of respondent no. 4. In this context we have also found from the records that the State Government in fact was never apprised as with regard to the change of names made by the Collector of the district while recommending the name of respondent no. 4, inasmuch as, the State Government was kept in dark by the Law Secretary that the name of respondent no. 4 recommended by the Collector of the district had never been consented/approved also by the District & Sessions Judge as we have found from the file of the Law Department. Therefore, we will have no hesitation in holding that the appointment of respondent no. 4 on the post of Government Pleader was made without consultation of the District and Sessions Judge and thus is in complete violation of Rule-138 of P.P. Manual.
59. We are aware that during the pendency of this review application the term of three years on the post of Government Pleader as given to respondent no. 4 had been completed but as this review application has been filed under the observation and opportunity given by the Apex Court in its order dated 15.05.2009 we have decided the issue and would make it clear that if by any stretch of imagination respondent no. 4 is still continuing by way of extension of his original appointment made under the impugned order that must Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 51 come to an end forthwith. In other words the respondent no. 4 would not be entitled to continue on the post of Government Pleader on the basis of his order of appointment dated 04.12.2008 and 11.1.2010.
60. Before parting with we must reiterate the view expressed by the Apex court in the case of Johrimal (supra) wherein, law on the subject in relation to significance of appointment of counsel by the government was laid down in the following words:-
"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 representative 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 over- burdened with too many cases of widely varying degree 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 Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 52 State. They, thus, represent the interest of 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 minimized. 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 act 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 de'hors the statute.
The appointment in such a post must not be political one. The Manual states that a political activity by the District Government Counsel shall be a disqualification to hold the post. We cannot but express our anguish over the fact that in certain cases recommendations are made by the District Magistrate having regard to the political affinity of the lawyers to the party in power. Those who do not have such political affinity although competent are not appointed. Legal Remembrancer's Manual clearly forbids appointment of such a lawyer and/or if appointed, Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 53 removal from his office. The District Judge and the District Magistrate, therefore, are duty bound to see that before any recommendation is not made, or any political affinity. They must also bear in mind that the Manual postulates that any lawyer who is guilty of approaching the authorities would not be entitled to be considered for such appointment.
The State, therefore, is not expected to rescind the appointments with the change in the Government. The existing panel of the District Government Counsel may not be disturbed and a fresh panel come into being, only because a new party has taken over change of the Government."
61. We hope and believe that the State Government shall do the needful by circulating a copy of this judgment to all its Collectors of different districts of the State so that appointment on the part of the Government Pleader and/or other Government counsels in fact is made after an effective consultation with the District and Sessions Judge as laid down by the Apex Court in the case of Johrimal (supra) and the observations made by us hereinabove.
62. With the aforesaid observations and direction both this review application and the connected writ application are allowed. There shall be, however, no order as to costs.
63. Let a copy of this judgment be accordingly sent to the Law Secretary, Bihar for its being brought to the notice of the State Government for issuance of necessary guidelines to all the concerned authorities. Patna High Court C. REV. No.195 of 2009 dt.____-12-2012 54 (Mihir Kumar Jha, J) (Dr. Ravi Ranjan, J) Patna High Court Dated the 18th December 2012 A.F.R./Ranjan