Allahabad High Court
Bhola Nath Yadav vs State Of U.P. And Others on 28 October, 1999
Equivalent citations: 2000(1)AWC513
Author: D.R. Chaudhary
Bench: D.R. Chaudhary
JUDGMENT
S.H.A. Raza and D.R. Chaudhary, JJ.
1. The present writ petitions have been filed by one Bhola Nath Yadav and other by Prabhat Kumar Mukherji who were working as District Government Counsel (Crl.) and Addl. District Government Counsel (Crl.) in the district of Sonbhadra. Being aggrieved against the order of non-renewal of their postings on the designation which they had held, they knocked the door of this Court.
2. Bhoia Nath Yadav was initially appointed on the post of A.D.C.C. (Crl.) Sonbhadra on 26.2.1991 and worked as such till 1995. as his term was renewed from time to time. In the year 1995, the post of D.G.C. (Criminal) fell vacant. in pursuance of which he applied for his appointment and he was selected and appointed by the State Government as D.G.C. (Criminal) Sonbhadra on 16.12.1995. On a recommendation being made by the District Judge and the District Magistrate, his term as D.G.C. (Criminal) was renewed by the State Government on 24.6.97. When the process for renewal of the term of the petitioner was again started in the year 1998, the District Judge as well as the District Magistrate recommended the case of the petitioner for renewal by separate papers dated 25.5.98 and 6.2.98 respectively. But his term was not renewed by the State Government. Sri Prabhat Kumar Mukherji was selected and appointed on the post of A.D.G.C. (Criminal) Sonbhadra on 16.12.1995. On 24.6.1997 his term was renewed. Again on 25.5.98 the District Judge recommended the renewal of the term of Sri Prabhat Kumar Mukherji. On 6.6.98 the District Magistrate also recommended the name of Sri Prabhat Kumar Mukherji for renewal. But on 30.4.99 the State Government has refused to renew the term of Sri Prabhat Kumar Mukherji and ordered him to be relieved from the said post.
3. Both the petitioners have assailed the order of the Slate Government refusing to renew their terms on account of political bias. They alleged that the State Government wanted to appoint its own men in place of the petitioners. They asserted before this Court that in view of the recommendations which were made by the District Judge as well as District Magistrate, their term ought to have been renewed.
4. On behalf of the State Government counter-affidavit was filed. The learned Chief Standing Counsel also produced the relevant record before this Court. Counter-affidavits filed in both the cases do not disclose any complaint against the petitioners. What has been asserted in the counter-affidavit is that prerogative of the State to choose its lawyer. It was vehemently argued by the learned Chief Standing Counsel that the petitioners have no right to be appointed as Government Counsel on the criminal side. The State should be left free to choose its counsel in the same manner as a private individual. The record which was produced does not disclose that there exists any complaint against the petitioners. Undoubtedly there exists a letter of a political party which was on record. Certain allegations have been made to the effect that the petitioners have leaning in favour of particular leader and a particular party. But there seems to be no allegation that they actively indulged themselves into any political activity. In the light of the aforesaid facts and circumstances of the case, we have to examine as to whether the term of the petitioners for the office which they held ought to have been renewed by the State Government or not and if the State Government did not renew their terms, the action of the State can be said to be arbitrary or not.
5. It is well-settled that even in administrative matters, the State is bound to disclose reasons for taking any action.
6. In Sri Lekha Vidyarthi v. State of U.P., (1991) SCO 212, Hon. Mr. Justice Ram Manohar Sahal (as he then was) observed :
"The expression "without assigning any cause" means without communicating any cause to the appointee whose appointment is terminated and is not to be equated with "without any existence of any cause" it merely means that the reasons for which the termination is made need not be assigned or communicated to the appointee, though the decision has to be communicated. The non-assigning of reasons or non-communication thereof may be based on public policy, but termination of appointment without the existence of any cogent reason in furtherance of the object for which the power is given would be arbitrary and therefore against the public policy."
7. The principle laid down by the Supreme Court was applied in the case of termination of the services, also apply for non-renewal of the term of the office which a person holds.
8. Section 24 of the Criminal Procedure Code deals with the appointment of Public Prosecutor, which reads as under :
"24. Public Prosecutors.--(1) For every High Court, the Central Government or the State Government shall after consuitation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.
(2) The Central Government may appoint one or more Public Prosecutors, for the purpose of conducting any case or class of cases in any district, or local area.
(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutor for the district :
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.
(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are. In his opinion, fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State Government as the Public Prosecutor or Additinoal Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4).
(6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government, shall appoint a Public Prosecutor or an Additional Public Prosecutor, only from among the persons constituting such Cadre :
Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub-section (4).
(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under subsection (1) or sub-section (2) or sub-section (3) or sub-section [6), only if he has been in practice as an advocate for not less than seven years.
(8) The Central Government or the State Government may appoint.' for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor."
9. Section 24 of the Code does not speak about the extension or renewal of the term of the Public Prosecutor or Additional Public Prosecutor- But after the expiry of the term of the appointment of persons concerned, it requires the same statutory exercise, in which either new persons are appointed or those who have been working as Public Prosecutor or Addl. Public Prosecutor, are again appointed by the State Government, for a fresh term.
10. In Harped Singh Chauhan and others v. State of U. P., (1993) 3 SCC 552, tt was held by the Hon'ble Supreme Court that the procedure prescribed in the Manual (L. R. Manual) to the extent it is not in conflict with the provisions of Section 24, shall be deemed to be supplementing the statutory provisions. However, if there is any conflict, then Section 24 of the Code being statutory in nature will override the procedure prescribed in the Manual.
11. It has been well-settled since long that the lawyers appointed by the State Government to conduct its case cannot claim, as a matter of right, that their term should be extended or they should be appointed against the vacancies. But as held by Hon'ble Supreme Court in Harpal Singh Chauhan (supra) they can certainly, raise a grievance that either they have not received the fair. Just and reasonable treatment by the appointing authority or that the procedure prescribed in the Code and in the Manual, have not been followed. Although power has been vested in a particular authority, in subjective terms, still judicial review is permissible.
12. It was further observed by Hon'ble Supreme Court in Harpal Singh Chauhan (supra) that while exercising the power of judicial review even in respect of appointment of members of the legal profession as District Government Counsel, the Court can examine whether there was any infirmity in the "decision making process", of course, while doing so. the Court, cannot substitute its own judgment, over the final decision taken in respect of selection of persons for those posts. But the Court can interfere if it is satisfied that there is patent infraction of the statutory provisions of the Code.
13. The quality of the work which is assigned to Government counsel is to be judged and assessed by the District and Sessions Judge and the District Magistrate in consultation with the Sessions Judge, prepare a panel of the persons who was, in his opinion fit to be appointed as Public Prosecutor or Additional Public Prosecutor for the district ; meaning thereby that the District Magistrate has not been given a free hand to prepare a panel of the persons, who in his opinion is fit to be appointed as Public Prosecutor or Additional Public Prosecutor in the district. The exercise of such a power must be in consultation with the District Judge. The recommendation so made in consultation with the District Judge is to be taken into account by the State Government while appointing Public Prosecutor or Additional Public Prosecutor or renewal of their terms.
14. The scope of judicial review in the matter of appointment or renewal of Public Prosecutor or Addl. Public Prosecutor is limited to the extent that if the Court finds that in the "decision making process", the State Government has acted arbitrarily ; meaning thereby ; that if its decision is not in conformity with Article 14 of the Constitution, which is the sworn enemy of arbitrariness appear to be unjust, unfair and unreasonable then the Court can set at naught such a decision.
15. In view of the aforesaid reason, we are of the view that although the State is free to choose its counsel either on criminal or civil side and the lawyers cannot claim their appointment or renewal as Government counsel, but while doing so. if it appears that the action of the State smacks from the vice of arbitrariness, meaning thereby that it appears to be unfair, unjust and unreasonable. the Court, can intervene.
16. In State of U. P. v. Ramesh Chandra Sharma and others, AIR 1996 SC 864, Hon'ble J. S. Verma, J.. speaking for the Bench observed :
"In view of the clear provision in clause (3) of para 7.06 that 'appointment of any legal practitioner as a District Government Counsel is only professional engagement', it is difficult to appreciate the submission for which sustenance is sought from the provisions contained in the same Manual. The appointment being for a fixed term and requiring express renewal in the manner provided in the Manual, there is no basis to contend that it is not a professional engagement of a legal practitioner but appointment to post in Government service which continues till attaining the age of superannuation. In the earlier decisions of this Court including Shriekha Vidyarthi. AIR 1991 SC 537 (supra), the appointment of District Government Counsel under the Manual has been understood only as a professional engagement of a legal practitioner. This contention is, therefore, rejected."
It was further observed :
The High Court has granted relief to respondent Nos. 1, 2 and 3 on the ground that the action was arbitrary. It cannot be disputed after the decision in Shrilekha Vtdyarthi, AIR 1991 SC 537 (supra) and those following It. that the State action of refusing renewal can be quashed if it is arbitrary. The only question, therefore, is whether it is so as found by the High Court. The High Court has reached the conclusion that the only reason disclosed by the State Government for refusing to consider the case of these respondents for renewal of their terms were non-existent or extraneous. In substance, the action was supported by the State Government on the ground that there was no recommendation made by the District authorities for making the renewal as required by para 7.08. This is the only ground on which the action was supported by the State Government. However, the High Court found that the report of the District Officer was favourable to these respondents and the District Judge had really recommended renewal of their term. Admittedly, the only ground on which the State Government sought to support its action is found to be non-existent in the record. This leads to the inescapable conclusion that the action of refusing renewal to respondent Nos. 1. 2 and 3 by order dated 1.10.1992 was arbitrary and on a non-existent ground. This view taken by the High Court cannot, therefore, be faulted."
17. If we in the light of the observation of Hon'ble Supreme Court examine the facts of this case, we would find that neither In the counter-affidavit filed in these cases, anything adverse against the petitioners has been said nor the record discloses any reason as to why their term be not renewed. The record which has been produced before us also does not disclose any reason as to why the" term of the petitioners were not extended or renewed. Thus, this is a case of assigning no reason.
18. We need not cite several other cases which have been placed before us by Sri W. H. Khan, learned counsel appearing on behalf of the petitioners. Suffice to say we refer only one Judgment of Allahabad High Court in P. N. Sethi v. State of U. P. and others, 1997 (15) LCD 1046. where it was observed after considering the provisions contained in para 7.08 of the L. R. Manual that the counsel in the districts are treated as Law Officers of the State who are holders of an 'Office' or 'Post'. The aforesaid provision in the Chapter VII (L. R. Manual) reporting to appointment and condition of engagement of District Government counsel that the appointments are to be made and ordinarily renewed on objective assessment of suitability of the person, based on the opinion of the District Officers and the District Judges and Character Roll is maintained for keeping a record of the suitability of the appointee to enable an objective assessment for the purpose of his continuance as a law officer in the district.
19. If it is assumed that such engagements are only professional in nature and that the appointment or renewal which is made by the State Government pertains to subjective satisfaction of the State Government, but it should be based on certain materials. Threw was no objective material before the State Government to arrive at a conclusion that their term may not be renewed. The only relevant material before the State Government was the report of the District Judge and the District Magistrate, which was brushed aside, without indicating any reason. There exists nothing on the record to indicate that the petitioners have suffered from any disability, meaning thereby ; that there was any defect in their Character Roll or they were not suitable for the post in question. The District Judge who is best authority to assess and evaluate the working of the petitioners submitted his report in favour of the petitioners. The District Magistrate also did not find that the petitioners were not suitable for the posts which they held. Hence there was no material before the State Government which can be said to be adverse against the petitioners. The order passed by the State Government does not Indicate any reason as to why their term was not renewed, when in accordance with the instructions contained in para 7.08 their term could be renewed by the State Government.
20. In view of what we have Indicated hereinabove, both the writ petitions succeed. A writ order in the nature of certiorari quashing the order of Government dated 30.4.99 refusing to renew the term of the petitioners is issued and the State Government is further directed to consider the cases of the petitioners in the light of the recommendation made by the District Judge and the District Magistrate as well as the observations of this Court. Till the State Government takes its final decision, the petitioners will continue to discharge their duties which were assigned to them.