Allahabad High Court
Anil Kumar Rathor vs State Of U.P. And 3 Others on 19 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 1229, 2020 (1) ALJ 477 (2019) 8 ADJ 78 (ALL), (2019) 8 ADJ 78 (ALL)
Bench: Shashi Kant Gupta, Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED ON 23.5.2019 DELIVERED ON 19.7.2019 Court No. - 32 Case :- WRIT - C No. - 15484 of 2019 Petitioner :- Anil Kumar Rathor Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Bipin Lal Srivastava,S.K. Varma (Senior Advocate) Counsel for Respondent :- Niraj Tripathi,Vipin Pandey Hon'ble Shashi Kant Gupta,J.
Hon'ble Pankaj Bhatia,J.
(Delivered by Hon'ble Pankaj Bhatia,J.) The present petition is in a series of petitions that highlight the malady that exists in the State while making appointments to the sensitive post of District Government Counsel (hereinafter referred to as 'DGC'), in the present case DGC (Criminal) at District Budaun. Although this Court has delivered extensive judgements in Writ - C No. 4794 of 2019 (Santosh Kumar Pandey vs. State of U.P. and 17 Others) and Writ - C No. 4622 of 2019 (Pushpendra Kumar vs. State of U.P. and 3 others), there appears to be no change in the manner of appointments being carried out by the State Government. No efforts are being undertaken by the State Government to rectify the manner in which appointments are made to the post of DGC, despite a clear mandate of this Court in the above referred judgements which in turn are based on the dictum of the Supreme Court.
The facts leading to the present petition arise as under:
In the year 2014, an advertisement was issued inviting applications from eligible practicing lawyers for being considered for appointment as DGC (Criminal) at Budaun. In pursuance of the said advertisement, the petitioner along with other applicants, applied for being considered. The District & Sessions Judge, Budaun recommended the names of three applicants for being considered for appointment, the name of the petitioner appeared at serial no. 1. It is stated that the recommendation by the District Judge was forwarded to the District Magistrate on 21.7.2014. It is averred in the petition that the District Magistrate, Budaun, overlooking the recommendation of District Judge, recommended four names to the State Government, this recommendation being different from the recommendation made by District Judge and the Law Secretary. In terms of the recommendation made by the District Magistrate, one Jawahar Singh Yadav was appointed as DGC (Criminal), Budaun vide order dated 22.9.2016.
The petitioner challenged the said order by means of Civil Misc. Writ Petition No. 13681 of 2017. The said petition was disposed off permitting the petitioner to make a representation to the State Government, which the petitioner did by means of a detailed representation dated 12.4.2017. Vide order dated 14.6.2017, the appointment of Jawahar Singh Yadav was cancelled with immediate effect.
The State Government once again issued a fresh advertisement on 23.6.2017 inviting applications from the eligible advocates for being considered for appointment as DGC (Criminal), Budaun. The petitioner claims that in pursuance of the advertisement dated 23.6.2017, he once again applied for being considered for appointment as DGC (Criminal) and that his name was again recommended by the District Judge and was placed at serial no. 1 in the list of candidates recommended by the District Judge. The petitioner states that on 3.1.2018 the name of the petitioner along with other candidates was recommended by the District Magistrate to the State Government for being considered for appointment as DGC (Criminal), Budaun and the name of petitioner appears at serial no. 1 in the said recommendation. As the State Government took no decision on the recommendation of the District Magistrate, the petitioner filed Civil Misc. Writ Petition No. 3850 of 2018 which was disposed off by this Court vide order dated 30.1.2018 directing the respondent no. 1, the State Government to take a decision within six weeks. The petitioner claims that the State Government ignoring the recommendation of the District Judge, the District Magistrate as well as this Court, appointed Smt. Premwati Maurya as District Government Counsel (Criminal) on 05.11.2018. The appointment of Smt. Premwati Maurya was challenged by Jawahar Singh Yadav by means of Civil Misc. Writ Petition No. 41210 of 2018 and this Court, vide order dated 10.1.2019, stayed the effect and operation of the order dated 05.11.2018. It is brought on record that in pursuance to the stay order passed by this Court on 10.1.2019 in Civil Misc. Writ Petition No. 41210 of 2018 Smt. Premwati Maurya was stopped from functioning as DGC (Criminal) and the petitioner is working as In-charge DGC (Criminal) since 31.1.2019.
The present petition has been filed seeking the following relief:
"Issue a suitable writ, order or direction in the nature of mandamus directing the Principal Secretary (Law), Government of U.P., Lucknow, respondent no. 1, to pass an order for the appointment of the petitioner on the post of District Government Counsel (Criminal), Budaun, in conformity with the recommendations made by the District Judge, Budaun on 04.12.2017 and the District Magistrate, Budaun on 03.1.2018."
We have heard Sri S.K. Varma, Senior Advocate, assisted by Sri Bipin Lal Srivastava, learned counsel for the petitioner, Sri Mahesh Chandra Chaturvedi, Sri Neeraj Tripathi, learned Additional Advocate General, assisted by Sri Vinit Pandey, learned Chief Standing Counsel appearing on behalf of the State.
When the petition was filed, this Court, vide order dated 3.5.2019, had directed the Standing Counsel to seek instructions in the matter and to place the entire original record of the case before this Court. The record was produced before this Court and the perusal of the record prima facie indicated complete disrespect for the procedure prescribed in the L.R. Manual as also the manner of appointment of DGC. As such, this Court requested the Principal Secretary (Law) and L.R. to appear in the matter for assisting the Court vide order dated 20.5.2019. On 23.5.2019, the Principal Secretary and L.R. of Government of U.P. were present in the court in assisting on the questions, and after hearing the parties, the judgement was reserved.
A perusal of the record produced before this Court reveals that on 23.6.2017 the District Magistrate, Budaun issued an advertisement calling upon the eligible candidates for being considered for appointment to the one post of DGC (Criminal). On 16.11.2017, the District Magistrate forwarded the names of 18 applicants to the District Judge for his recommendation. The District Judge, following the procedure prescribed under 7.10 of the L.R. Manual and after duly considering the applicants, vide his letter dated 4.12.2017, recommended the name of three persons, namely, Anil Kumar Rathor, Rohitas Kumar Saxena and Madan Lal for being considered for appointment as DGC (Criminal). A copy of the recommendation of the District Judge is quoted herein below:
izs"kd] ulhj vgen f}rh; ¼,p0 ts0 ,l0½ tuin U;k;k/kh'k] tuin & cnk;w¡A lsok esa] Jheku ftyk eftLVªsV] tuin & cnk;w¡A i=kad& 3155/XV cnk;w¡ fnukafdr & 4-12-2017 fo"k;%& ftyk 'kkldh; vf/koDrk QkStnkjh] cnk;w¡ ds fjDr ,d in ds lkis{k iSuy izLrko djk;s tkus ds laca/k esa%& egksn;] d`i;k vki vius i=kad 634@U;k; lgk;d@2017 fnukad & 16-11-2017 dk lanHkZ xzg.k djus dk d"V djsaA vkids }kjk dqy 18 vkosndx.k dh lwph iznku dh x;h x;h gSA bUgha vf/koDrkx.k esa ls ftyk 'kkldh; vf/koDrk QkStnkjh ds ,d in ds fy, iSuy ds rhu vf/koDrkx.k dk uke izsf"kr djuk gSA + eSaus vius lHkh v/khuLFk vij ftyk ,oa l= U;k;k/kh'k ls ftyk 'kkldh; vf/koDrk QkStnkjh ds in gsrq vkosndks ds dk;Z fooj.k] vkpj.k ,oa Kku ds laca/k esa vk[;k ekaxh rks vij ftyk ,oa l= U;k;k/kh'k us ¼Jherh lksfudk pkS/kjh vij ftyk ,oa l= U;k;k/kh'k@Rofjr U;k;k/kh'k d{k la[;k&2] cnk;w¡ dks NksM+dj½ Jh vfuy dqekj jkBkSj iq= Lo0 Jh jke pUnz fuoklh 837 e/kqou dkyksuh] cnk;w¡ ¼tks lwph esa Øe la[;k&2 ij gSa½ ds laca/k es muds dk;Z O;ogkj ,oa vkpj.k rFkk fof/k Kku ds laca/k esa Hkwjh&Hkwjh iz'kalk dh gSA Jh vfuy dqekj jkBkSj esjs U;k;ky; esa Hkh crkSj izHkkjh 'kkldh; vf/koDrk QkStnkjh dk;Z ns[k jgs gSa vkSj mUgsa fof/k dk Kku vPNk gS rFkk dk;Z O;ogkj ,oa vkpj.k Hkh mRre gSA blh Øe esa Hkh jksfgrk'k dqekj lDlsuk iq= Jh iUuk yky lDlsuk fuoklh 910 e/kqou dkyksuh flfoy ykbu] cnk;w¡ ¼tks lwph esa Ø0 la0 & 1 ij gSa½ ds laca/k esa vij ftyk ,oa l= U;k;k/kh'k] d{k la[;k &3] cnk;w¡ o vij ftyk ,oa l= U;k;k/kh'k] d{k la[;k &4] cnk;w¡ dks NksM+dj vU; lHkh esjs v/khuLFk ftyk ,oa l= U;k;k/kh'kx.k us buds dk;Z O;ogkj ,oa vkpj.k ds laca/k esa vPNk dgk gS vkSj buds laca/k esa dksbZ f'kdk;r ugh izkIr gqbZ gSA ;g nks o"kZ rd 'kkldh; vf/koDrk QkStnkjh ds in ij Hkh dk;Zjr jgs gSA fof/k dk Kku vPNk gS vkSj budk vuqHko Hkh vPNk gS rFkk dk;Z dks ns[krs gq, bUgksus l= ijh{k.k ls lacaf/kr ijh{k.k ds dk;ksZ dk vf/kd fu"iknu djk;k gS rFkk ;g Hkh 'kkldh; vf/koDrk QkStnkjh ds in ds fy, ,d ;ksX; mEehnokj gS] Jh enu yky iq= Jh fcgkjh yky fuoklh orZeku irk ,y&7@ch vkokl&fodkl cnk;w¡ tuin cnk;w¡ ¼tks lwph esa Øe la0 & 6 ij gSa½ ds laca/k esa esjs v/khuLFk vij l= U;k;k/kh'k] Rofjr U;k;ky; la[;k&2] cnk;w¡ ds vykok lHkh vij ftyk ,oa l= U;k;k/kh'k] us ,d Loj esa muds dk;Z O;ogkj ,oa vkpj.k dh iz'kalk dh gS vkSj muds fof/k Kku dks vPNk crk;k gS vkSj bUgs dk;Z djus dk vuqHko djhc 20 o"kZ dk gS vkSj l= ijh{k.k Hkh muds ikl jgs gSa vkSj bUgksus dkQh oknksa dk fuLrkj.k djk;k gSA vr% ;g Hkh 'kkldh; vf/koDrk QkStnkjh in ds fy, ,d csgrj mEehnokj gSaA vr% ftyk 'kkldh; vf/koDrk QkStnkjh ds in gsrq fuEu iSuy dh laLrqfr djrk gw¡%& 1& Jh vfuy dqekj jkBkSj iq= Lo0 Jh jke pUnz flag fuoklh 837 e/kqou dkyksuh] cnk;w¡ ¼;g lwph Øe la[;k & 2 ij gSa½ 2& Jh jksfgrk'k dqekj lDlsuk iq= Jh iUuk yky lDlsuk fuoklh 910 e/kqou dkyksuh flfoy ykbu] cnk;w¡ ¼;g lwph Øe la[;k & 1 ij gSa½ 3& Jh enu yky iq= Jh fogkjh ykyk fuoklh orZeku irk ,y&7@ch vkokl&fodkl cnk;w¡ tuin cnk;w¡ ¼tks lwph esa Øe la[;k & 6 ij gSa½ fnukad 04-12-2017 Hkonh;
¼ulhj vgen f}rh;½ tuin U;k;k/kh'k] cnk;w¡A The perusal of the records produced by the Standing Counsel reveals that one Smt. Premwati Maurya moved an application on 16.12.2017 stating that her name has not been recommended by the District Judge and requested that the District Judge, Budaun be requested to forward her name and also simultaneously requested for being appointed under Para 7.03 of the L.R. Manual.
The District Magistrate, vide his letter dated 27.12.2017, requested the Senior Superintendent of Police, Budaun for giving the character certificate pertaining to the 11 persons mentioned in the said letter. The name of the petitioner and the other two persons recommended by the District Judge in his recommendation dated 04.12.2017 were included in the said list. The aforementioned list comprised of 11 persons including the name of Smt. Premwati Maurya.
The District Magistrate, vide his letter dated 3.1.2018, sent a request to the Special Secretary (Law) stating that in pursuance of an advertisement dated 23.3.2017 for one post of DGC (Criminal) 18 applications have been received and after consultation with the District Judge, the names of three persons are being recommended for appointment in the order of merit. Strangely, he also recommended that Smt. Premwati Maurya may also be considered despite her name not appearing in the recommendation by the District Judge. Copy of the said letter is reproduced here-in-below:
isz"kd] ftyk eftLVªsV] cnk;w¡A lsok esa] fo'ks"k lfpo] mRrj izns'k 'kklu] U;k; vuqHkkx&3 ¼fu;qfDr;k¡½] y[kuÅA la[;k% 775@U;k; lgk;d@2017 fnukad% 3-01-2018 fo"k;% ftyk 'kkldh; vf/koDrk ¼QkStnkjh½ cnk;w¡ ds fjDr in ds lkis{k iSuy miyC/k djkus fo"k;dA egksn;] d`i;k 'kklukns'k la[;k% Mh0 852@lkr&U;k;&3&17 5¼cnk;w¡½ 2014 fnukad 14-06-2017 dk lUnHkZ xzg.k djus dh d`ik djsaA rRØe esa voxr djkuk gS] fd tuin esa fjDr in ftyk 'kkldh; vf/koDrk ¼QkStnkjh½ cnk;w¡ ds ,d in ij uohu vkc)rk gsrq tkjh foKfIr fnukad 23-06-2017 ds Øe esa foKkfIr in ds lkis{k fuEukuqlkj vkosnu&i= izkIr gq, gS%& Øekad in uke foKkfIr inksa dh la[;k izkIr vkosnu i=ksa dh l[a;k 1& ftyk 'kkldh; vf/koDrk QkStnkjh cnk;w¡ 1 18 mDr vkosnudrkZ vf/koDrkvksa ds vkpj.k] O;olkf;d rFkk lR;kfu"B ds lEcU/k esa ek0 tuin U;k;k/kh'k ls eUrO;@vk[;k i=kad% 3155@iUnzg cnk;w¡ fnukad 04&12&2017 izkIr gq;h gSA ek0 tuin U;k;k/kh'k ls izkIr eUrO;@vk[;k rFkk leLr rF;ksa dks n`f"Vxr j[krs gq, mDr fjDr in ij uohu vkcU/ku gsrq fof/k ijke'khZ funsZf'kdk ds iSjk 7-03 dh O;oLFkk ds v/khu ftyk 'kkldh; vf/koDrk QkStnkjh cnk;w¡ ds fy, izkIr vkosnu i=ksa esa ls fof/k O;olkf;dksa ds uke fuEuor~ ojh;rk Øe esa pfj= lR;kiu ds lkFk laLrqfr lfgr iszf"kr fd;s tk jgs gSa%& ftyk 'kkldh; vf/koDrk ¼QkStnkjh½&01 in ds fy, iSuy izLrko vkosnu&i= la0 1& Jh vfuy dqekj jkBkSj iq= Lo0 Jh jke pUnz flag fu0 837 e/kqcu dkyksuh flfoy ykbu ftyk cnk;w¡A 2& Jh jksfgrk'k dqekj lDlsuk iq= Jh iUuk yky lDlsuk fu0 910 e/kqou dkyksuh flfoy ykbu cnk;w¡A 3& Jh enu yky iq= Jh fcgkjh yky fu0 ,y 7@ch vkokl fodkl dkyksuh ftyk cnk;w¡A 02 01 06 mijksDr ds vfrfjDr ,d vU; vf/koDrk Jherh izseorh ekS;Z iRuh Jh lR;izdk'k fu0 ch0 344 vkokl fodkl dkyksuh cnk;w¡ ¼vkosnu ia= la[;k 04½ us v/kksgLrk{kjh ds le{k mifLFkr gksdj viuk izdj.k@izkFkZuk&i= izLrqr fd;k gSA Jherh izseorh ekS;Z ds vkpj.k] O;olkf;d rFkk lR;fu"Bk ds n`f"Vxr buds uke ij Hkh fopkj fd;k tk ldrk gSA vr% mDr izdj.k izLrko leLr ewy vkosnu&i=ksa ds lkFk bl vuqjks/k lfgr izsf"kr gS fd mijksDr izLrko ij leqfpr fu.kZ; ysus dk d"V djsaA layXud& mDror 18 ewy vknsou&i=A Hkonh;
¼fnus'k dqekj flag½ ftyk eftLVªsV] cnk;w¡ The State Government did not take any action on the said recommendation dated 03.01.2018, however, vide letter dated 12.4.2018, the Special Secretary wrote a letter to the District Magistrate stating that the name of Smt. Premwati Maurya is not included in the list of names recommended by the District Judge as such the District Magistrate was called upon to get the report of Smt. Premwati Maurya from the District Judge, copy of the said letter is reproduced as under:
la[;k& Mh&77 @lkr&U;k;&3&18&3 ¼cnk;w¡½ 14 isz"kd] lat; [kjs] fo'ks"k lfpo] mRrj izns'k 'kkluA lsok esa] ftykf/kdkjh] cnk;w¡A U;k; vuqHkkx&3 ¼fu;qfDr;kW½ y[kuÅ % fnukad 12 vizSy] 2018 fo"k;%& ftyk 'kkldh; vf/koDrk] ¼QkStnkjh½] cnk;w¡ ds fjDr in ds lkis{k iSuy miyC/k djkus fo"k;dA egksn;] mi;qZDr fo"k; ij vius i= la[;k& 775@U;k; lgk;d @2017 fnukad 03-01-2018 dk d`i;k lanHkZ xzg.k djus dk d"V djsaA 2& bl laca/k esa eq>s ;g dgus dk निर्देश gqvk gS fd ftyk 'kkldh; vf/koDrk ¼QkStnkjh½ ds in ij fu;qfDr gsrq Jherh izseorh ekS;Z iRuh lR; izdk'k dk vkosnu i= fopkj.k gsrq izsf"kr fd;k x;k gS ijUrq Jherh izseorh ekS;Z ds laca/k esa tuin U;k;k/kh'k dh vk[;k izsf"kr ugh dh x;h gSA vr% d`i;k Jherh izseorh ekS;Z ds laca/k esa tuin U;k;k/kh'k dh vk[;k miyC/k djkus dk d"V djsaA Hkonh;
¼lat; [kjs½ fo'ks"k lfpoA The District Judge, vide his letter dated 2.6.2018, clarified the legal position and expressed his dismay in the manner in which the recommendation of the name of Smt. Premwati Maurya was being asked to be submitted. He clarified that the recommendations made earlier were on merit and after considering the performance as prescribed in the L.R. Manual and, therefore, comments on the name of Smt. Premwati Maurya were wholly unwarranted. A copy of the letter of District Judge is quoted here-in-below:
izs"kd] ulhj vgen f}rh;] ,p0 ts0 ,l0] tuin U;k;k/kh'k] cnk;w¡A lsok esa] Jheku ftykf/kdkjh] cnk;w¡ i=kad 2073 /XV 2] twu&2018 fo"k;% i=kad 1031@U;k; lgk;d@2019 fn0 vizSy 21-04-18 ds tfj, ftyk 'kkldh; vf/koDrk QkStnkjh ds fjDr in ij izkIr vkosnu Jherh izseorh ekS;kZ ,MoksdsV ij vk[;k ds lEcU/k esaA egksn;] d`i;k mDr fo"k;d i= dk lanHkZ xzg.k djus dk d"V djsaA mDr ds lEcU/k esa esjh izLrj okj vk[;k fuEuor gS& 1- ;g fd vkids }kjk blds iwoZ ftyk 'kkldh; vf/koDrk QkStnkjh cnk;w¡ ds ,d fjDr in ds lkis{k iSuy izLrko djk;s tkus ds laca/k esa vk[;k ekaxh x;h FkhA ftl ij esjs }kjk i=kad 3155/XV cnk;w¡ fn0 04-12-17 ds tfj, rhu vf/koDrkx.k dk iSuy izLrko izsf"kr fd;k x;k Fkk ftlesa ua0 &1 ij Jh vfuy dqekj jkBkSj] ua0 &2 ij Jh jksfgrk'k dqekj lDlsuk vkSj ua0 &3 ij Jh enu yky FksA mDr iSuy izLrko ds le; gh lHkh vf/koDrkx.k ds vkosnu izi= iszf"kr fd;s x;s Fks vkSj lHkh vf/koDrkx.k ds laca/k esa esjs v/khuLFk dk;Zjr vij ftyk ,oa l= U;k;k/kh'kx.k ls muds dk;Z] O;ogkj] vkpj.k ,oa fof/kd Kku ds laca/k esa vk[;k vkgwr dh x;h Fkh mudh vk[;k vkus ds mijkar esjs }kjk lHkh vf/koDrkx.k ds dk;Z] O;ogkj] vkpj.k o Kku dk rqyukRed v/;;u djus ds mijkar mDr iSuy izLrko izsf"kr fd;k x;k FkkA mDr iSuy izLrko ds vf/koDrkx.k ds eqdkcys Jherh iszeorh ekS;kZ ,MoksdsV muds lkis{k ugha vk ik jgh FkhA vU;Fkk mudk uke Hkh mDr iSuy izLrko esa iszf"kr fd;k tkrk gSA 2- ;g fd vc vkids }kjk vyx ls ek= Jherh izseorh ekS;kZ ,MoksdsV ds laca/k esa fVIi.kh@vk[;k miyC/k djkus gsrq dgk x;k gS tks iSuy izLrko ds fo:) gksxkA D;ksafd iSuy izLrko fn0 04-12-17 esa ukfer vf/koDrkx.k ds eqdkcys Jherh izseorh ekS;kZ dk dk;Z] O;ogkj ,oa vkpj.k rFkk fof/kd Kku rFkku muds }kjk fd;s x;s dk;Z tks nks o"kZ ds ekaxs x;s Fks os yxkrkj nks o"ksZ ds ugha Fks cfYd dqN fnuks ds Fks tSls fd lu~ 2004 esa ek= 03 eqdnesa tks fn0 23-11-15 o 24-11-15 dks fu.khZr gq, gSA blh izdkj fn0 21-10-16 dk ek= ,d eqdnek gS vkSj lu~ 17 ds 15 eqdnesa gSA blls Li"V gS fd budh dk;Z {kerk iSuy ds vU; vf/koDrkx.k ds eqdkcy de FkhA vr% iSuy izLrko ges'kk vf/koDrkx.k dh xq.koRrk dk rqyukRed v/;;u djus ds mijkUr izsf"kr fd;k tkrk gS vkSj iSuy izLrko izsf"kr djrs le; budh xq.koRrk ij fopkj dj fy;k x;k FkkA vr% vc vyx ls buds laca/k esa mDr iSuy ds izLrko ds vf/koDrkx.k ds eqdkcys fopkj djus dk dksbZ vkSfpR; ugha jg tkrk gSA 3- ;g fd ;gka ij ;g mYys[kuh; gS fd ,y0vkj0 eSuqvy ds v/;k;&7 ds izLrj 7%03 ds varxZr vkosnu drkZvksa dks vU; vko';d lwpukvksa ds vfrfjDr nks o"kZ ds Hkhrj muds }kjk tks dk;Z fd;k x;k gS mldk Hkh fooj.k nsuk pkfg, fdUrq mDr izLrj ds ijUrqd ds vuqlkj ftyk tt ;k ftyk eftLVªsV bl vk'k; ls ck/; ugha gS fd vkosndks ds foxr nks o"kksZ ds fooj.k dks gh vk/kkj ekus cfYd fdlh ,sls O;fDr dks Hkh ukfer fd;k tk ldrk gS ftlesa vkSipkfjd :i ls izkFkZuk [email protected] i=A ck;ksMkMkA fn;k gh u gksA ;gka ij ,slh fLFkfr ugha gSA Jherh izseorh ekS;kZ }kjk vkSipkfjd :i ls izkFkZuk [email protected] i=A ck;ksMkMkA fn;k x;k gSA ,slh fLFkfr esa lHkh vkosndx.k@ vf/koDrkx.k ds eqdkcys rqyukRed v/;;u djus ds mijkUr iSuy izLrko rS;kj dj iszf"kr fd;k x;k FkkA vr% vc buds ckjs esa iqu% vyx ls fopkj djus dk dksbZ vkSfpR; ugha jg tkrkA 4- ;gka ij ;g Hkh mYys[kuh; gS fd le; le; ij ekuuh; mPp U;k;ky; }kjk bl laca/k esa fofHkUu ekeyks esa fn'kk funsZ'k Hkh fn;s x;s gSA tSlk fd ;kfpdk lh0 ua0 14426@2017 dey flag cuke LVsV vkQ ;w0ih0 vkfn esa ekuuh; mPp U;k;ky; bykgkckn }kjk bl rjg ds O;ogkj dks xyr ekuk x;k vkSj ;g dgk x;k fd ,d ckj iSuy izLrko tkus ds mijkar iqu% iSuy izLrko ls vyx gVdj fdlh vU; vf/koDrk ds laca/k esa vyx ls ftyk tt ls vk[;k ekaxh tk;s] ;g izfØ;k xyr gSA mijksDr foospuk ds vk/kkj ij eSa bl fu"d"kZ ij ig¡qprk gw¡ fd iSuy izLrko fn0 04-12-17 ds eqdkcys vc iqu% Jherh izseorh ekS;kZ ,MoksdsV ds vkosnu ij fopkj ugha fd;k tk ldrk gSA vk[;k lknj iszf"krA Hkonh;
¼ulhj vgen f}rh;½ tuin U;k;k/kh'k] cnk;w¡ The District Magistrate, vide his letter dated 04.6.2018, sent his report to the Special Secretary stating that the District Judge has given his view that recommendation on the name of Smt. Premwati Maurya was not proper and further requested that the appointments be considered in terms of the earlier letter dated 3.1.2018.
Strangely, ignoring the entire process adopted by the District Magistrate, as recommended by the District Judge, a letter was written by the Minister of Law and Justice on 14.8.2018 to the District Magistrate to recommend the names of seven persons for being appointed as District Government Counsel. A copy of the said letter is quoted here-in-below:
czts'k ikBd ea=h fo/kk;h ,oa U;k;] jktuSfrd isa'ku vfrfjDr ÅtkZ lzksr dk;kZy; % d{k la0 &91&91 , eq[; Hkou m0iz0 lfpoky;
nwjHkk"k% 0522&2238074@2213292 ¼dk0½ l[a;k 2023/oh-vkbZ-ih-/fo-U;k-vfr-ÅtkZ-jk-isa-/2018 fnukad 14-08-18 ftykf/kdkjh] cnk;w¡A d`i;k tuin esa 'kkldh; vf/koDrkvksa ds fofHkUu inksa ij fjfDr;ksa ds lkis{k fuEufyf[kr vf/koDrkvksa dks 14&14 fnu ds fy, vLFkk;h :i ls vkc) djus gsrq 'kklu dks izLrko miyC/k djkus dk d"V djsa%& 1- Jherh izseorh ekS;kZ iq=h Jh jkS'ku yky ekS;kZ ¼eks0& 9412852654½] ft0'kk0vf/k0] QkStnkjhA 2- Jh latho Lo:i oS'; iq= Jh izse Lo:i oS'; ¼eks0& 9412461914½] ft0'kk0vf/k0] flfoyA 3- Jh banzs'k dqekj iq= Jh jkS'ku yky ¼eks0& 94564068424½] ft0'kk0vf/k0] jktLoA 4- Jh enuyky jktiwr iq= Jh fcgkjh yky jktiwr ¼eks0& 9412654650½] lgk0ft0'kk0vf/k0] QkStnkjhA 5- Jh equsUnz flag iq= Jh jke jkBkSj ¼eks0&9410258484½] lgk0ft0'kk0vf/k0] QkStnkjhA 6- Jh ftrsUnz flag iq= Jh johUnz iky flag ¼eks0& 9997804271½] lgk0ft0'kk0vf/k0] QkStnkjhA 7- Jh vjfoUn ckYehfd iq= Jh vksadkj ckYehfd ¼eks0& 9837567520½] lgk0ft0'kk0vf/k0] QkStnkjhA d`i;k rn~uqlkj rRdky dk;Zokgh djkus dk d"V djsaA 13-08-2018 ¼czts'k ikBd½ ea=h] fo/kk;h ,oa U;k;] vfrfjDr ÅtkZ lzksr jktuSfrd isa'ku foHkkx] mRrj izns'k 'kkluA The Under Secretary, in pursuance of the letter of the Minister, sent a letter dated 29.8.2018, asking the District Magistrate to recommend the seven names for being appointed as District Government Counsel. The name of Smt. Premwati Maurya and three others was asked to be recommended for DGC (Criminal) Budaun, a copy of the said letter dated is quoted here-in-below:
la[;k& ,e&242@lkr&U;k;&3&18 izs"kd] vkse izdk'k vuq lfpo] mRrj izns'k 'kkluA lsok esa] ftykf/kdkjh] cnk;w¡A U;k; vuqHkkx&3 ¼fu;qfDr;kW½ y[kuÅ % fnukad 29 vxLr] 2018 fo"k;%& tuin cnk;wW esa fjDr 'kkldh vf/koDrkvksa ds fofHkUu inksa ij 14&14 fnu ds vkcU/ku ds laca/k esaA egksn;] mi;qZDr fo"k; ds laca/k esa eq>s ;g dgus dk funs'k gqvk gS fd tuin cnk;wW esa 'kkldh; vf/koDrkvksa ds fofHkUu fjDr inks ds lkis{k fof/k ijke'khZ funsf'kdk ds lqlaxr izkfo/kkuksa ds vuqlkj 14&14 fnu gsrq vLFkk;h :i ls vkc) fd;s tkus ds laca/k esa fu;ekuqlkj izLrko miyC/k djkus dk d"V djs%& 1- Jherh izseorh ekS;kZ iq=h Jh jkS'ku yky ekS;kZ ¼eks0& 9412852654½] ft0'kk0vf/k0] QkStnkjhA 2- Jh latho Lo:i oS'; iq= Jh izse Lo:i oS'; ¼eks0& 9412461914½] ft0'kk0vf/k0] flfoyA 3- Jh banzs'k dqekj iq= Jh jkS'ku yky ¼eks0& 94564068424½] ft0'kk0vf/k0] jktLoA 4- Jh enuyky jktiwr iq= Jh fcgkjh yky jktiwr ¼eks0&9412654650½] lgk0ft0'kk0vf/k0] QkStnkjhA 5- Jh equsUnz flag iq= Jh jke jkBkSj ¼eks0&9410258484½] lgk0ft0'kk0vf/k0] QkStnkjhA 6- Jh ftrsUnz flag iq= Jh johUnz iky flag ¼eks0& 9997804271½] lgk0ft0'kk0vf/k0] QkStnkjhA 7- Jh vjfoUn ckYehfd iq= Jh vksadkj ckYehfd ¼eks0& 9837567520½] lgk0ft0'kk0vf/k0] QkStnkjhA Hkonh;] ¼vkse izdk'k½ vuqlfpoA The District Magistrate, ignoring the entire process as adopted by him and as recommended vide his letter dated 03.01.2018, recommended the name of seven persons as were recommended by the Law Minister as well as the Under Secretary. The relevant paragraphs pertaining to DGC (Criminal) in the present case is being quoted as under:
izs"kd] ftyk eftLVªsV] cnk;w¡A lsok esa] fo'ks"k lfpo] m0iz0 'kklu] U;k; vuqHkkx&3 ¼fu;qfDr;ka½ y[kuÅA la[;k% 1360@U;k; lgk;d@2018 fnuk¡d% flrEcj 24] 2018 fo"k;% tuin cnk;w¡ esa 'kkldh; vf/koDrkvksa ds fofHkUu inksa ij 14&14 fnu dh fu;qfDr gsrq izLrko iszf"kr djus ds lEcU/k esaA egksn;] d`i;k mijksDr fo"k;d i= la[;k% ,e&242@lkr U;k;&3&18 fnuk¡d 29&08&2018 dk lUnHkZ xzg.k djus dk d"V djsaA ftlesa fuEufyf[kr vf/koDrkx.kksa dks 14&14 fnu ds fy, 'kkldh; vf/koDrk ds fofHkUu inksa ij vkc) djus gsrq izLrko 'kklu dks miyC/k djkus dh vis{kk dh xbZ gS& 1& Jherh izseorh ekS;kZ iq=h Jh jkS'ku yky ekS;kZ ¼ftyk 'kkldh; vf/koDrk QkStnkjh½ 2& Jh latho Lo:i oS'; iq= Jh izse Lo:i oS'; ¼ftyk 'kkldh; vf/koDrk flfoy½ 3& Jh banzs'k dqekj iq= Jh jkS'ku yky ¼ftyk 'kkldh; vf/koDrk jktLo½ 4& Jh enuyky jktiwr iq= Jh fcgkjh yky jktiwr ¼lgk0 ftyk 'kkl0 vf/k0 QkStnkjh½ 5& Jh equsUnz flag iq= Jh jke jkBkSj ¼lgk0 ftyk 'kkl0 vf/k0 QkStnkjh½ 6& Jh ftrsUnz flag iq= Jh johUnz iky flag ¼lgk0 ftyk 'kkl0 vf/k0 QkStnkjh½ 7& Jh vjfoUn ckYehfd iq= Jh vksadkj ckYehfd ¼lgk0 ftyk 'kkl0 vf/k0 QkStnkjh½ mijksDr vf/koDrkvksa ds lEcU/k esa vfHkys[kh; fLFkfr ,oa vU; fooj.k fuEuor gS& 1& Jherh izseorh ekS;kZ iq=h Jh jks'ku yky ekS;kZ Jherh izseorh ekS;kZ dh 14&14 fnu ds fy, ftyk 'kkldh; vf/koDrk ¼QkStnkjh½ ds in ij fu;qfDr gsrq izLrko miyC/k djkus dh vis{kk dh xbZ gSA ftyk 'kkldh; vf/koDrk ¼QkStnkjh½ ds lEcU/k esa fof/k ijke'khZ funsZf'kdk ds iSjk&7-10 esa nh xbZ O;oLFkk ds vuqlkj mldk dk;Z lkekU;rk vfrfjDr@lgk;d ftyk ljdkjh vf/koDrk] ;fn dksbZ gks] }kjk fd;k tk;sxkA orZeku esa tuin esa 01 vij 'kkldh; vf/koDrk ¼QkStnkjh½] 07 lgk;d ftyk 'kkldh; vf/koDrk ¼QkStnkjh½ rFkk ,d ukfedk odhy ¼QkStnkjh½ dk;Zjr gSaA orZeku esa ftyk 'kkldh; vf/koDrk ¼QkStnkjh½ dk in fjDr gS rFkk bl ij fu;qfDr gsrq izLrko i= la[;k% 775@U;k; lgk;d@2018 fnuk¡d 03&01&2018 }kjk iszf"kr fd;k tk pqdk gS] tks 'kklu Lrj ij fopkjk/khu gSA Jherh iszeorh ekS;kZ dks 14&14 fnu ds fy, ftyk 'kkldh; vf/koDrk ¼QkStnkjh½ ds in ij vkc) fd;s tkus ds lEcU/k esa 'kklu }kjk mfpr fu.kZ; fy;s tkus dh laLrqfr dh tkrh gSA On 14.11.2018, in pursuance of the recommendation, six persons were appointed as District Government Counsel including Smt. Premwati Maurya and two others as DGC (Criminal), Budaun. The said appointments were continued on a 14 day basis.
The appointment of Smt. Premwati was challenged in Civil Misc. Writ Petition No. 41210 of 2018 (Jawahar Singh Yadav vs. State of U.P. and others) in which this Hon'ble Court passed an order dated 10.1.2019 staying the appointment of Smt. Premwati Maurya.
Strangely, on 27.3.2019, the petitioner, in the said Civil Misc. Writ Petition No. 41210 of 2018, moved an application seeking the withdrawal of the writ petition, which was allowed by this Court and the writ petition was dismissed as withdrawn vide order dated 27.3.2019. Immediately thereafter, on 26.4.2019, the District Magistrate once again reappointed Smt. Premwati Maurya to the post of DGC (Criminal) on 14 days basis which is continuing till date.
The arguments of Sri S.K. Varma, Senior Advocate, are that the entire process of appointment is wholly arbitrary, illegal, contrary to the provisions of L.R. Manual and are politically motivated and thus bad in law. He has argued that even while taking administrative decisions the State Government is bound to act in a fair and reasonable manner and is bound to uphold the Rule of Law, which is the bed rock of the principles enshrined under Constitution of India. He has extensively argued that the entire process of appointment has been done at the instance of the recommendation made by the Minister of law and Justice and blindly followed by the State functionaries including under Secretary (Law) and the District magistrate. He has drawn our attention to the fact that no satisfaction whatsoever was recorded by the Minister of Justice, the Under Secretary or the District Magistrate in recommending the name of the seven persons, and that they have also ignored the recommendation made after following the due process of law by the District Magistrate in his recommendation dated 03.01.2018. He thus prayed that the writ petition be allowed and the appointments made to the post of DGC (Criminal) be quashed and the petitioner be granted the appointment in terms of the recommendation dated 03.01.2018. He has extensively relied upon the judgement of this Court in the case of Santosh Kumar Pandey vs. State of U.P. and 17 others and followed by Pushpendra Kumar vs. State of U.P. and 3 others.
Learned counsel for the petitioner has also placed reliance upon the judgement of the Supreme Court in the case of State of U.P. and others vs. Ajay Kumar Sharma and another, (2016) 15 SCC 289, State of U.P. and another vs. Johri Mal, (2004) 4 SCC 714, State of Punjab and another vs. Brijeshwar Sngh Chahal and another, 2016 (6) SCC 1 and Kumari Shrilekha Vidyarthi Etc. vs. State of U.P. And Ors, 1991 1 SCC 212.
Sri Neeraj Tripathi, learned Additional Advocate General has tried to justify the appointments made on the ground that the State Government is empowered to make appointments in terms of para 7.03 of the L.R. Manual and the State Government is thus justified in making the appointments. Sri Tripathi has relied upon the provisions of para 7.06 (3) of the L.R. Manual to buttress the point that the engagement of any legal practitioner as a DGC is only a provisional engagement terminable at will on either side and is not an appointment to a post under the Government and thus the Government reserved its powers to terminate the appointment of any DGC at any time without assigning any cause. The learned Additional Advocate General has placed reliance upon three judgements i.e. 2004 (4) SCC 714, State of U.P. and another vs. Johri Mal, 2016 (15) SCC 289, State of U.P. and others vs. Ajay Kumar Sharma and another and Writ C No. 8741 of 2018, Manoj Kumar Yadav vs. State of U.P. and another.
There is no argument or document on record to demonstrate as to why no action has been taken on the recommendations made by the District Magistrate after observing the due procedure and duly recommended vide letter dated 03.01.2018.
In view of the submissions made at the bar, the points that emerge for consideration are whether the State Government is justified in ignoring the recommendation for appointments made vide letter dated 03.01.2018 after following the procedure prescribed under the L.R. Manual and to make the appointments by a process which is contrary to the provisions of the L.R. Manual, and the pronouncements of the Hon'ble Supreme Court as well as this High Court with regard to appointments to be made to the post of DGC.
This Court in the judgment rendered in the case of Santosh Kumar Pandey vs. State of U.P. and 17 others extensively considered the provision of LR Manual, the judgements of the Supreme Court and the scope of appointments made to the post of DGC and after considering the judgements of the Supreme Court rendered in the case of State of U.P. and others vs. Ajay Kumar Sharma and another, State of U.P. and another vs. Johri Mal, State of Punjab and another vs. Brijeshwar Singh Chahal (supra) came to the conclusion that the salient features that can be culled out from the pronouncements of the Hon'ble Supreme Court are as under:
"(i) No person can claim appointment to the District Government Counsel as a matter of right.
(ii) Posts of the District Government Counsel is a post of public importance and sensitive to the justice delivery system.
(iii) The appointments to the said posts is on the discretion of the State Government, however, the said discretion should be exercised reasonably and fairly and in the interest of public without any element of arbitrariness or fulfillment.
(iv) There is no place for political intervention in the appointment process. The procedure whether it is statutory or administrative should confirm to the test of fairness and non-arbitrariness.
(v) Process of selection should be after due consultation with District Judge or Committee."
This Court held that although the L.R. Manual does not have any statutory flavor, it nonetheless provides guidelines for the manner of appointment, which in turn conform to the fairness doctrine and must be followed in letter and spirit. The manner of appointment which includes consultation with the District Judge or any Committee constituted by the District Judge for shortlisting the candidates is a fair procedure and should be necessarily followed while making the appointments to the post of Government Counsels at the district level i.e. D.G.C., Additional D.G.C. and Assistant D.G.C. This Court while dealing with bureaucrat-political relationship also relied upon a judgement of the Supreme Court in the case of Tarlochan Dev Sharma vs. State of Punjab, 2001(6)SCC 260 observed as under:
"15. It is interesting to view the present day bureaucrat-politician relationship scenario:
"A bureaucratic apparatus is a means of attaining the goals prescribed by the political leaders at the top. Like Alladins lamp, it serves the interest of whosoever wields it. Those at the helm of affairs exercise apical dominance by dint of their political legitimacy. . . . . . . . . The ministers make strategic decisions. The officers provide trucks, petrol and drivers. They give march orders. The minister tells them where to go. The officers have to act upon instructions from above without creating a fuss about it." ("Effectiveness of Bureaucracy", The Indian Journal of Public Administration, April-June 2000, at p.165).
16. In the system of Indian Democratic Governance as contemplated by the Constitution, senior officers occupying key positions such as Secretaries are not supposed to mortgage there own discretion, volition and decision-making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. No Government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Jadeja (1995) 5 SCC 302, this court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this court in The Purtabpur Company Ltd., AIR 1970 SC 1896, are instructive and apposite. Executive officers may in exercise of their statutory discretions take into account considerations of public policy and in some context, policy of Minister or the Government as a whole when it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated, we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. Yet we have no hesitation in holding that the impugned order betrays utter non-application of mind to the facts of the case and the relevant law. The manner in which the power under Section 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under Section 22 of the Act. To say the least what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. We leave at that and say no more on this issue."
It was also held that even the short-term engagement as envisaged under para 7.10 of the L.R. Manual can be made only out of the panel of lawyers that exists prior to the finalization of the panel in terms of the advertisements issued under para 7.03. This Court proceeded to quash the appointment holding that the action of appointment by the District Magistrate without following any procedure whatsoever were bad in law and suffered from arbitrariness and the action of the State Governments were held to be violative of Article 14 as well in violation of the judgement of the Hon'ble Supreme Court.
The facts in the present case are absolutely similar to the facts of Santosh Kumar's case and, thus, the judgement in the said case will truly apply to the present case.
In the present case, the State Government has resorted to a procedure unknown to law and without there being any satisfaction either objective or subjective especially with regard to the names recommended by the Minister of Law and Justice without following any procedure whatsoever and blindly forwarded by the Joint Secretary (Law) as well as the District Magistrate.
The material and distinct features of this case is that the District Judge had specifically recorded his dissatisfaction to the name of Smt. Premwati Maurya and thereafter this Court had also entertained a writ petition and passed an interim order on 10.1.2019, however, as soon as the said writ petition was withdrawn, the State Government proceeded to issue a fresh appointment order in favour of Smt. Premwati Maurya.
It is thus clear from the narration of the facts that the State Government wanted to appoint the persons of its choice, without following any due process of law, as prescribed under the L.R. Manual which clearly bears that the appointments were politically motivated.
It is well settled that the executive action, bereft of any reasoning and, in contrast to the settled provisions renders the entire action, as arbitrary and illegal. The Court records its dismay to the continuous flouting of law by the officers who are bound to enforce the rule of law. We also feel it necessary to record that while deciding Writ - C No. 4794 of 2019 (Santosh Kumar Pandey vs. State of U.P. and 17 Others) this Court had recorded that the bureaucrats in the Law Ministry are the Judicial Officers and are bound to observe the due process of law and to at least object to the illegal procedures adopted by the State Government. The observations are as under:
"It is distressing to note that despite the clear note of the District Magistrate that the procedure provided under the L.R. Manual has not been followed, inasmuch as the opinion of the District Judge in respect of the merit, competence and capability of the counsel recommended by the Hon'ble Minister has not been obtained, the State has appointed the Government Counsel. The District Magistrate has very clearly mentioned that the appointment should be made only from the earlier list of 51 persons which was prepared in consultation with the District Judge, but the State Government has completely ignored the note appended by the District Magistrate.
We are at pains to point out that from the original record we have not found any noting made by the Judicial Officers, who are posted in Judicial Secretariat in the State, against the illegal procedure adopted by the State Government. The one of the objects to post the Judicial Officers in the Secretariat is to ensure that they will give correct legal advice to the State Government because they are independent and are not functioning under the State Government but they are part of judiciary. They are expected to work fairly, fearlessly and totally wedded to the rule of law. We are constrained to observe that the District Magistrate and the concerned Judicial Officers posted in Judicial Secretariat have abdicated their responsibility.
It is a well settled law that if an officer abdicated his power or duty on dictation of a superior authority, his action becomes illegal. Reference may be made to the judgments of the Supreme Court in the case of Tarlochan Dev Sharma v. State of Punjab and others17, Dipak Babaria and another v. State of Gujarat and others18, and the judgment of this Court in Madan Kumar and others v. District Magistrate, Auraiya and others."
In view of the facts and the law discussed above, we have no hesitation in holding that the State Government failed to observe due process of law while making recommendation for appointment of DGC (Criminal). As such, the appointments made in pursuance of the recommendations made by the Law Minister on 14.8.2018, reiterated by the Deputy Secretary on 29.8.2018, and consequently recommended by the District Magistrate on 24.9.2018 are held to be without following due process of law and are hereby quashed.
The State Government is directed to make the appointments in terms of the recommendations made by the District Magistrate in its recommendation dated 03.1.2018. It is clarified that the said exercise of making the appointments in terms of the recommendation dated 03.1.2018 shall be carried out expeditiously and no later than one month from the date of the judgement.
The conduct of the State Government in the present case cannot be appreciated, no steps have been taken by the State despite two pronouncements by this Court to correct the rot that has been set in while appointing DGC's. Considering the hardships faced by the petitioner as well as the conduct of the respondents we deem it appropriate to saddle the State with exemplary cost.
The writ petition is allowed with a cost of Rs. 50,000/- (Fifty Thousand only). The cost shall be deposited by the State Government before the Registrar General of this court within a period of one month from today and the Registrar General is directed to remit the said amount to the Advocates' Association, Allahabad expeditiously. Copy of the judgement be placed before the Registrar General of this Court to ensure necessary compliance of this order with regard to payment of cost.
The writ petition is allowed in terms of the directions given above.
The original records be returned to Sri Vipin Pandey, learned counsel for the respondent.
Order Date :- 19.7.2019 Puspendra