Allahabad High Court
Yash Pal Singh Raghav vs State Of U.P.Thr.Prin Secy Law And 3 Ors on 10 January, 2019
Bench: Devendra Kumar Arora, Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED Case :- MISC. BENCH No. - 3879 of 2008 Petitioner :- Yash Pal Singh Raghav Respondent :- State Of U.P.Thr.Prin Secy Law And 3 Ors Counsel for Petitioner :- O.P.Srivastava Counsel for Respondent :- C.S.C. along with Case :- MISC. BENCH No. - 33568 of 2018 Petitioner :- Yash Pal Singh Raghav Respondent :- State Of U.P. Thru. Prin. Secy. Law Deptt.& Ors. Counsel for Petitioner :- Virendra Kumar Dubey,Anu Priya Srivastava Counsel for Respondent :- C.S.C.,Sanjay Bhasin Hon'ble Dr. Devendra Kumar Arora,J.
Hon'ble Alok Mathur, J.
(1) Heard Shri O.P. Srivastava, Senior Advocate, assisted by Shri Virendra Kumar Dubey, learned Counsel for the petitioner, Shri Sandeep Dixit, Special Counsel, assisted by Shri Amitabh Roy, learned Additional Chief Standing Counsel for the State and Shri Sanjay Bhasin, learned Counsel for the private respondent (Shri Rahul Upadhyay).
(2) In writ petition No. 3879 (M/B) of 2008, the petitioner, inter-alia has challenged the correctness of the order dated 8.4.2008 passed by the State Government, whereby the renewal of term of the petitioner as Additional District Government Counsel (Criminal), Bulandshahar (hereinafter referred to as "ADGC") has been refused. The aforesaid order dated 8.4.2008 was served upon the petitioner through the District Magistrate, Bulandshahar on 11.4.2008 vide letter dated 9.4.2008, which has also been challenged by the petitioner in writ petition No.3879 (M/B) of 2008.
(3) The aforesaid writ petition has seriously been contested by the respondents by filing a counter affidavit wherein it has been indicated that the District Magistrate, Bulandshahar vide letter dated 4.1.2008 has informed the State Government that 20 criminal cases are pending against the petitioner, who has a criminal bent of mind. It was also informed that the petitioner is a resident of Khurja and his cases are related to Khurja and there are probabilities of adversely effecting the cases on account of his continuation on the post of ADGC (Criminal). In the backdrop of the said facts, the State Government thought it proper not to renew the term of the petitioner on the post of ADGC and as such there is no illegality or infirmity in the impugned order.
(4) On the strength of the provisions contained in 7.06 and 7.08(4) it has been vehemently contended that professional engagement is terminable at will on either side and is not an appointment to a post under the Government. Similarly, there is no right of an Advocate for renewal of its tenure and the State Government at any point of time can terminate the engagement without assigning any reasons.
(5) It has also been urged that in the case of State of U.P. and others versus Ajay Kumar Sharma; 2016(1) ALJ 305, the Apex Court has held that the District Counsels do not enjoy the statutory rights with respect to the renewal of tenures and the State Government enjoys the discretionary powers in this context. In the said case it has also been held that performance of the Advocates should not be the sole criteria for their re-appointment as District Counsel and the State Government is free to repose trust and confidence in the persons whom they choose to appoint as their Advocates.
(6) In afore-captioned writ petition No. 33568 of 2018 (M/B), the petitioner inter-alia has challenged the validity of the order dated 9.10.2018 passed by the State Government, directing the District Magistrate to appoint/engage Shri Rahul Upadhyaya as District Government Counsel (Criminal), Bulandshahar as also the order dated 23.10.2018 by which the charge of the post of District Government Counsel (Criminal) has been taken from the petitioner for handing over it to the opposite party no.2.
(7) According to the petitioner, he was appointed as Panel Lawyer (Criminal) on 2.6.1997 and thereafter as Assistant District Counsel on 3.9.2001 on regular basis, which term was renewed from time to time. Later on, he was appointed as Additional District Government Counsel (ADGC) vide order dated 24.6.2004 as the post of Assistant Government Counsel was upgraded.
(8) It is said that the post of District Government Counsel (Criminal) fell vacant on account of superannuation of Sri Akil Ahmad Afridi w.e.f. 14.7.2014. On occurrence of the vacancy, the arrangement was to be made in consonance with the provisions of Para 7.10 of the LR Manual.
(9) According to the petitioner, when the term of the petitioner as ADGC was not renewed, he filed a Writ Petition No. 3879 of 2008 in which an interim order was passed on 8.5.2008 and in compliance thereof the petitioner was allowed to function as ADGC vide order dated 10.6.2008.
(10) It has been submitted by the learned Counsel for the petitioner that when the charge of the post of District Government Counsel (DGC), Criminal, which was lying vacant,was given to a person junior to the petitioner, he made a representation to the State government and ultimately, vide order dated 30.6.2017, the petitioner was given the charge of the post of DGC.
(11) According to the petitioner, the State Government issued an order dated 7.9.2018 requiring the District Magistrate to make appointment on 14 days basis on the post of District Government Counsel (Criminal). It is said that the said order was issued under political pressure.
(12) Feeling aggrieved, the petitioner has preferred a Writ-C No. 33363 of 2018 for quashing of the letter/order dated 4.9.2018 issued by the Cabinet Minister and the order dated 7.9.2018 issued by the Under Secretary. In the meantime, the State Government wrote a letter dated 9.10.2018 asking the District Magistrate to appoint Sri Rahul Upadhyaya, Advocate [O.P. No.5] as DGC (Criminal) for 14 days. Therefore, the petitioner withdrew the said writ petition in order to challenge the subsequent order.
(13) According to the petitioner, pursuant to the aforesaid order dated 9.10.2018, the District Magistrate issued an order dated 23.120.2018 appointing/engaging the opposite party no.5 as DGC (Criminal) for 14 days. On the same day, by another order the petitioner was asked to hand over the charge.
(14) It has been vehemently asserted by the learned Counsel for the petitioner that the appointment of the opposite party no.5 as DGC is in breach of the provisions of Para 7.10 of the L.R. Manual apart from being violative of Article 14 of the Constitution.
(15) It has also been asserted that in view of the provisions of Para 7.10 of the L.R. Manual, in true sense, the Opposite Party no.5 is a stranger and an stranger cannot be allowed to function in casual vacancy/ officiating capacity and he cannot be given charge of the post of DGC (Criminal), which has to be given to an incumbent enumerated in the provision (16) Before dealing with the controversy involved in the writ petition, we deem just and proper to refer provisions contained in Legal Remembrancer's Manual. Chapter VII contains the provisions relating to the appointment and condition of engagement of the DGC. Para 7.01 of Chapter VII of the L.R. Manual is the definition clause and the Note appended to it mentions in explicit words that the expression District Government Counsel in this Chapter refers to District Government Counsel (Civil) in respect of civil work, to District Government Counsel (Criminal) in respect of criminal work and to District Government Counsel (Revenue) in respect of revenue work and includes Additional/ Assistant/ Sub District Government Counsel, wherever, so required. Para 7.02 deals with the power of the Government to appoint DGC in the districts in the interest of efficient and expeditious disposal of business. Para 7.03 provides for applications and qualifications for the appointments on the post of DGC. The District Officer is required to consider all the applications in consultation with the District Judge. Para 7.04 requires the Legal Remembrancer to submit the recommendations along with his own opinion to the State Government. Para 7.06 provides for the appointment and for the renewal and para 7.08 for renewal of the term. Para 7.07 forbids the DGC, from participating in political activity so long as he holds the post of DGC. These provisions read as under:-
" 7.02. Power of Government to appoint Government Counsel in the districts- (1). The Government shall ordinarily appoint a District Government Counsel (Criminal), a District Government Counsel (Civil) and a District Government Counsel (Revenue) for each district in the State.
(2) The Government may also, wherever, necessary in the interest of efficient and expeditious disposal of business, appoint:
(a) Additional or/and Assistant District Government Counsel to assist the district Government Counsel (Criminal) or (Civil) in the discharge of his duties.
(b) Subordinate District Government Counsel for the conduct of civil cases in outlying towns of a district where civil court exists or may be created in future.
(c) Assistant District Government Counsel in the outlying towns of the district for the conduct of criminal or civil cases or both.
7.03. Applications and qualifications- (1) Whenever the post of any of the Government Counsel in the district is likely to fall vacant within the next three months, or when a new post has been created, the District Officer concerned shall notify the vacancy to the members of the Bar. Members eligible for consideration would be those having at their credit a practice of 10 years in case of District Government Counsel, 7 years in case of Assistant District Government Counsel and 5 years in case of Sub- District Government Counsel. The District Officer shall ask those who want to be considered for appointment to a particular office to give their names to him with particulars such as age, length of practice at the Bar, proficiency in Hindi, Income-tax paid by them on professional income during last 3 years and if not assessed the return submitted by them, if any, details of the work handled by them during the course of the preceding two years duly verified by court and whether they have practiced on criminal, civil and revenue side.
(2) The District Government Counsel and legal practitioners of the neighboring districts may also send the above particulars for the post of District Government Counsel through their District Officers, who shall forward the same to the District Officer of the district in which the appointment is to be made, with such remarks as they deem fit.
(3) The names so received shall be considered by the District Officer in consultation with the District Judge. The District Officer shall give due weight to the claim of the existing incumbents (Additional/ Assistant District Government Counsel), if any, and shall submit confidentially in order of preference the names of the legal practitioners for each post to the Legal Remembrancer giving his own opinion particularly about his character, professional conduct and integrity and the opinion of the District Judge on the suitability and merits, of each candidate. While forwarding his recommendations to the Legal Remembrancer the District Officer shall also send to him the biodata submitted by other incumbents with such comments as he and the District Judge may like to make. In making the recommendations, the proficiency of the candidate in civil or criminal or revenue law, as the case may be, as well as in Hindi shall particularly be taken into consideration;
Provided that it will also be open to the District Officer to recommend the name of any person, who may be considered fit, even though he may not have formally supplied his biodata for being considered for appointment. The willingness of such a person to accept the appointment if made shall, however, be obtained before his name is recommended.
7.04. Legal remembrancer to obtain orders of Government on receipt of recommendations from the district- On receipt of the recommendation of the District Officer, the Legal Remembrancer may, if necessary, make such further enquiry about the candidates as he may deem necessary and then submit the recommendations of the District Officer along with his own opinion for the orders of the Government, whose decision shall be final.
7.05. Prohibition of canvassing- Any canvassing or interview with the members of the Government, Legal Remembrancer or any officer working under him, on the part of a candidate in support of his candidature may disqualify him for such appointment.
7.06. Appointment and renewal- (1) The legal practitioner finally selected by Government may be appointed District Government Counsel for one year from the date of his taking over charge.
(2) At the end of the aforesaid period, the District Officer after consulting the District Judge shall submit a report on his work and conduct to the Legal Remembrancer together with the statement of work done in Form no.9. Should his work or conduct be found to be unsatisfactory the matter shall be reported to the Government for orders. If the report in respect of his work and conduct is satisfactory, he may be furnished with a deed of engagement in Form No.1 for a term not exceeding three years. On his first engagement a copy of Form no.2 shall be supplied to him and he shall complete and return it to the Legal Remembrancer for record.
(3) The appointment of any legal practitioner as a District Government Counsel is only professional engagement terminable at will on either side and is not appointment to a post under the Government. Accordingly the Government reserves the power to terminate the appointment of any District Government Counsel at any time without assigning any cause.
7.07. Political Activity- The District Government Counsel shall not participate in political activities so long they work as such; otherwise they shall incur a disqualification to hold the post.
7.08. Renewal of term- (1) At least three months before the expiry of the term of a District Government Counsel, the District Officer shall after consulting the District Judge and considering his past record of work, conduct and age, report to the Legal Remembrancer, together with the statement of work done by him in Form no.9 whether in his opinion the term of appointment of such counsel should be renewed or not. A copy of the opinion of the District Judge should also be sent along with the recommendations of the District Officer.
(2) Where recommendation for the extension of the term of a District Government Counsel is made for a specified period only, the reasons therefor shall also be stated by the District Officer.
(3) While forwarding his recommendation for renewal of the term of a District Government Counsel-
(i) the District Judge shall give an estimate of the quality of the Counsel's work from the Judicial stand point, keeping in view the different aspects of a lawyer's capacity as it is manifested before him in conducting State cases, and specially his professional conduct:
(ii) the District Officer shall give his report about the suitability of the District Government Counsel from the administrative point of view, his public reputation in general, his character, integrity and professional conduct.
(4) If the Government agrees with the recommendations of the District Officer for the renewal of the term of the Government Counsel, it may pass orders for reappointing him for a period not exceeding three years.
(5) If the Government decides not to reappoint a Government Counsel, the Legal Remembrancer may call upon the District Officer to forward fresh recommendations in the manner laid down in para 7.03.
(6) The procedure prescribed in this para shall be followed on the expiry of every successive period of renewed appointment of a District Government Counsel."
A perusal of the aforesaid provisions clearly indicates that it deals with the regular engagement of the District Government Counsel in the districts and nowhere in the aforesaid clause, it has been provided that a officiating person as Government Counsel can automatically become a regular District Government Counsel. There is a separate provision in Para 7.10 which deals with the officiating appointment in casual vacancies, which will be dealt later on.
(17) As far as non-renewal of the term of the petitioner [ Writ Petition No. 3879 of 2008) is concerned, we would like to mention that a government counsel has a right to be considered for renewal of his term in terms of Para 7.08 of L. R.'s Manual which specifically provides that at least three months before the expiry of the term of the District Government Counsel, the District Officer shall after consulting the District Judge and considering their past record of work, conduct and age, submit a report to the Legal Remembrancer, together with the statement of work done by them, for consideration of the State Government, as to whether the term be renewed or not.
(18) It is true that the District Government Counsel cannot be removed nor their functioning interfered unless renewal is considered in accordance with the procedure prescribed by law taking into account the reports sent by the District Judge and the District Magistrate. In the case at hand, the District Magistrate, Bulandshahar vide letter dated 4.1.2008 and 24.2.2008 had sent a report to the State Government that around twenty criminal cases under various sections of the Indian Penal Code were pending and he is having criminal bent of mind.
(19) It may be noted that in the connected writ petition no. 33568 of 2018 (MB), the opposite party no.5 has filed an Affidavit indicating therein that the petitioner is a history sheeter against whom History Sheet No.39-A/85 was opened in accordance with the provisions of Regulation 228 under Chapter XX of the U.P. Police Regulations.
(20) From the pleadings and record, it is established that the State Government did consider the case of the petitioner in the light of the aforesaid reports and took a right decision that it would not be proper to renew the term of the petitioner on the post of Additional District Government Counsel (Criminal), which is fully justified and the order dated 9.4.2008 cannot be faulted.
(21) It may be noted that this court vide entertaining the writ petition passed an interim order dated 8.5.2008 and directed that the petitioner be allowed to continue to work as ADGC. During the pendency of the said writ petition, it appears that the term of the petitioner was extended from time to time as the interim order, referred to above, was holding the field. However, extension of period on account of operation of interim order would not create any right in his favour as we have already observed that the impugned order dated 8.4.2008 is perfectly justified and legal.
(22) In second Writ Petition No. 33568 of 2018 (MB), the petitioner, as stated above has challenged the orders dated 9.10.2018 and 23.10.2018 where the opposite party no.5 to the writ petition, namely, Rahul Upadhyaya has been allowed to function as District Government Counsel.
(23) Sri Sandeep Dikshit, Special Counsel appearing for the State has argued that there is no illegality or infirmity in appointment of the respondent no.5 as District Government Counsel in terms of the provisions of Para 7.10 of the LR's Manual. According to him, in terms of Para 7.10, which deals with the officiating appointment in casual vacancies, the State Government has every power to make engagement. It has also been vehemently argued that in view of the proviso appended to Para 7.10 of the LR Manual, anyone can be engaged/appointed to function as District Government Counsel and it is wrong to assert that appointment of opposite party no.5 as DGC (Criminal) is bad in law.
(24) Sri Sanjay Bhasin, Advocate appearing for the opposite party no.5 while seriously contesting the writ petition urged that the answering respondent belongs to a lawyer family of repute and is practicing in the District Court, Bulandshahar since 1993. He possess requisite qualification and eligibilities to be appointed as District Government Counsel. Therefore, his appointment in terms of Para 7.10 of the LR's Manual cannot be termed as illegal or bad in law.
(25) As the appointment of Sri Rahul Upadhya (opposite party no.5) has been made in terms of the provisions of the Para 7.10 of the Legal Remembrancer's Manual, therefore, we deem it proper to reproduce Para 7.10 of the Legal Remembrancer's Manual and to examine whether the very engagement of opposite party no.5 was lawful. Para 7.10 reads as under:-
"7.10 Officiating appointment in casual vacancies - When the District Government Counsel is unable to attend to his duties on account of his being away outside the district or the local area for which he has been appointed or due to other reasons for a period of less than 15 days-
(i) in the case of District Government Counsel (Criminal) or (Civil), his work will ordinarily be looked after by the Additional/Assistant District Government Counsel, where one exists; otherwise it will be looked after by one of the panel lawyers designated by the District Officer;
(ii) in the case of District Government Counsel (Revenue), his work will be looked after by District Government Counsel (Civil) or another legal practitioner to be appointed by the District Officer, unless the court agrees to adjourn the cases for the requisite period.
Provided that where the absence of the District Government Counsel is likely to continue for a period exceeding 15 days, the fact shall be reported to the legal Remembrancer by the District Officer, and his prior approval for the proposed arrangement for the conduct of work in his absence shall be obtained.
Provided further that where the arrangement is made for the work of the District Government Counsel for a period exceeding than 15 days, the acting District Government Counsel will be entitled to the same fee as admissible to the District Government Counsel."
(26) Para 7.10 quoted as above, provides for officiation on a casual vacancy for less than 15 days, by allowing the Additional/Assistant District Government Counsel to officiate. In case the vacancy is for more than 15 days, it shall be reported to the Legal Remembrancer by the District Officer and his prior approval for the proposed arrangement for the conduct of work in his absence shall be obtained. It goes without saying that the rule of seniority will be followed unless the District Magistrate finds otherwise for good and sufficient reasons to be recorded in writing. Again it may be emphasized that the purpose of para 7.10 is to meet out the immediate requirement of the district till regular appointment is done in accordance with Rules/L.R. Manual.
(27) Apart from the above provisions, Chapter XXI of the LR's Manual deals with the Public Prosecutors. Para 21.01 says in specific words that a supplementary provision has been made in this Chapter for appointment and renewal of the post of public prosecutors. It also enjoins that in case of any inconsistency, the provisions contained in this chapter shall prevail. It inter-alia contains the guidelines and clarifies that the appointment of DGC (Criminal), the change of designation of the public prosecutors could not effect the basic nature of their professional engagement. It further provides that such professional engagement is terminated on either side without notice and without assigning any reason. It is stated that the appointment of public prosecutor and Addl. Prosecutor both for the High Court and District shall be made in accordance with Section 24 of the Code as enshrined in Para 20.03. Further, Para 21.04 provides for constitution of a panel of five years against each vacancy. It mandates that the State Government shall appoint an Additional Public Prosecutor out of the names appeared in the panel. Relevant Paras of the said Manual read as under:
"21.04 For every vacancy in the office of Public Prosecutors, Additional Public Prosecutors in a district, District Magistrate shall prepare a Panel of names persons in consultation with the Sessions Judge of the Session Division. A Panel of five persons against against each such vacancy shall be prepared. The District Magistrate while forwarding the panel of names to the Legal Remembrancer shall subject the biodata of the persons included in the panel and also send a copy of the opinion of the Sessions Judge in respect of each such person. He shall also submit his report abut the character integrity and capability of every person included in the pael giving detail of the work handled by him during the course of the preceding two years It should also be stated if the persons included in the panel were income tax payers or not if so the amount of gross income from the profession on which they were assessed.
21.06. The State Government shall appoint a Public Prosecutors or an Additional Public Prosecutor only out of the names appearing in the panel.
21.07. The appointment of Public Prosecutor or Additional Public Prosecutor shall be made for the period of three years, but the State Government can terminate such appointment at any time without notice and without assigning any reason. The State Government may extend the period of such appointment from time to time and such extension of such term shall not be treated as new appointment.
21.08. The District Magistrate shall after consultation with the Sessions Judge submit a confidential report in respect of the Public Prosecutor and Additional Public Prosecutors giving details about the percentage of success of cases conducted by them and the general reputation which they enjoy. Where the percentage of success is low the reasons given by the Public Prosecutor or Additional Public Prosecutor for the same should also be commented on. After every three years he shall make a special assessment of each such Public Prosecutor or Additional Public Prosecutor and recommend whether the person concerned should be granted extension for a further term of three years or for a shorter term only."
(28) It would not be out of place to mention here that Hon'ble Supreme Court in the case of State of U.P. Vs. Johri Mal (2004) 4 SCC 714 has held in para 4 of the judgment that the post of District Government Counsel (Crl.) is deemed to be that of Public Prosecutor within the meaning of Section 24 of the Code of Criminal Procedure. Therefore, any appointment to the said post has to be made in conformity with Section 24 of the Code of Criminal Procedure.
(29) Thus in view of the provisions, referred to above, it would be highly arbitrary and unlawful on the part of the Government to invoke provisions contained in para 7.10 of L.R. Manual and to adopt a novel procedure to engage outsiders [persons who are not on the Panel of the Government] initially for 14 days and then allowing them to continue for an indefinite period. If such a practice is allowed, it would be in blatant disregard of the procedure for engagement of District Government Counsels and would not be legally sustainable. The appointment made with the tenor of regular appointment under para 7.10 of L.R. Manual shall not be lawful and may not extend any service benefit to the District Government Counsel for the purpose of renewal or fresh appointment.
(30) As regard the assertion of the Special Counsel that the State Government has exercised the power as provided in the Proviso, it may be stated that now it is well settled that a proviso added to a statutory provision is not a substantive proviso in any sense of the term but as the plain meaning of the word itself shows, it is merely meant to explain or qualify certain ambiguities which may have crept in the statutory provision. In other words, a proviso cannot be torn apart from the main enactment nor can it be use, to nullify or set at naught the real object of the main enactment.
(31) A plain reading of the proviso to Para 7.10 makes it clear that it does not at all take away the mandatory procedure of making arrangement when an incumbent holding the post of District Government Counsel is unable to discharge his duties for any reason and provides only for prior approval of the arrangement. It may be added that a proviso cannot be read in isolation and interpreted literally. Therefore, we are unable to accept the suggestion as suggested by the Special Counsel appearing for the State Government.
(32) In these circumstances, we find force in the submissions advanced by the Counsel for the petitioner that an stranger cannot be appointed to fill the casual vacancy, which infact ought to have been filled in by a working Additional/Assistant Government Counsel as laid down in Para 7.10 (I) of the LR Manual.
(33) As averred above, para 7.10 enjoins in explicit words the procedure as to how a temporary vacancy can be filled to meet out immediate requirement and no power is vested to engage an outsider as it is provided in clause (I) that in case of District Government Counsel (Criminal ) or civil, the work would be look after by the Additional or Assistant Government counsel as the case may be, otherwise it would be looked after by one of the panel lawyers.
(34) For the reasons aforesaid, the order dated 23.10.2018 so far as it relates to the appointment of opposite party no.5 (Sri Rahul Upadhyay) as DGC (Criminal), Bulandshahar is hereby quashed.
(35) As the post of District Government Counsel (Criminal) is vacant since considerable long time, official respondents are directed to advertise the posts, if not advertised earlier within a period of three weeks and complete the process of engagement/empanelment by 15th February, 2019.It is further provided that the State Government shall now fill up the existing vacant posts by considering the cases of all eligible persons strictly in accordance with the relevant provisions of LR Manual read with Section 24 Cr.P.C and a compliance report be filed before the Court in the last week of February, 2019.
(36) In view of the above detailed discussions, the Writ Petition No. 3879 (MB) of 2008 is hereby dismissed whereas the Writ Petition No. 33568 (MB)of 2018 is allowed in part. Parties to bear their own costs.
Order Date:10th January, 2019 MH/-