Rajendra Prasad Sharma vs State Of U.P. And 4 Others
2014 Latest Caselaw 2403 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Chief Justice's Court
 

 
Case :- WRIT - C No. - 30981 of 2014
 

 
Petitioner :- Rajendra Prasad Sharma
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Ajay Kumar Singh
 
Counsel for Respondent :- C.S.C.,Manish Goyal
 

 
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, Chief Justice
 
Hon'ble Dilip Gupta, J.

The petitioner has, in these proceedings under Article 226 of the Constitution, challenged an order dated 7 May 2014 passed by the Deputy Secretary, Law declining to renew the engagement of the petitioner as Assistant District Government Counsel (Criminal), Ghazipur.

The case has a checkered history. The petitioner was initially appointed as an Assistant District Government Counsel (Criminal) on 26 February 1991 by the State Government. The appointment of the petitioner was not extended by an order dated 20 August 1992. In a writ petition filed by the petitioner an interim direction was issued allowing the petitioner to function, unless another incumbent had joined in his place. In pursuance of the interim order dated 2 September 1992, the petitioner was allowed to continue as Assistant District Government Counsel (Criminal). On 1 January 1996 a fresh appointment was made of the petitioner in pursuance of the Government Order dated 7 December 1995. On 13 March 1997 the appointment of the petitioner was renewed and he continued until 5 February 2000. The petitioner continued to work from 2000 until 25 August 2011 when his services were disengaged. The petitioner was a party to writ proceedings before the Lucknow Bench (Writ Petition No.4851 (M/B) of 2011). The writ petition together with a connected batch of petitions was allowed on 6 January 2012. The Division Bench at Lucknow inter alia quashed a Government Order dated 13 August 2008 to the extent to which it had amended the L.R. Manual deleting the consultation process of the District Judge. Special Leave Petitions were filed before the Supreme Court. The State Government took a policy decision to withdraw the Special Leave Petitions. A clarification was issued by the Supreme Court on 17 July 2012 in regard to the manner in which renewals/re-consideration/appointments would be made by the concerned authority. Following the order of the Supreme Court, the petitioner was allowed to join as an Assistant District Government Counsel (Criminal) on 2 July 2012.

The District Judge, Ghazipur by a communication dated 1 November 2012 addressed to the District Magistrate certified the character and performance of the petitioner. The District Magistrate also submitted a report dated 12 November 2012 favourably recommending the renewal of the term of the petitioner. However, a decision was taken not to renew the engagement of the petitioner. This was the subject matter of an earlier Writ Petition (Civil Misc. Writ Petition No.36852 of 2013) filed by the petitioner.

By a judgment and order dated 21 October 2013, the earlier writ petition filed by the petitioner was allowed on the ground that there was an absence of reasons which rendered the decision arbitrary and the decision was not in consonance with the provisions of paras 7.06 to 7.08 of the L.R. Manual. The decision was quashed and the matter was remitted back for fresh consideration.

Following the earlier order of remand, a fresh order has been passed by the Deputy Secretary on 7 May 2014. The Deputy Secretary has declined to renew the engagement of the petitioner on the following grounds:-

(i) the recommendation of the District Judge and the District Magistrate was not in accordance with para 7.08(3) of the Manual;

(ii) for the period between January 2008 to December 2010, the rate of success of the petitioner was 63.02% in the sessions trials conducted by him which was not of a high order;

(iii) during the aforesaid period, the petitioner had conducted only one Criminal Appeal which had been dismissed; and

(iv) during the period January 2011 to August 2012, the success rate of the petitioner was 58.33% in the sessions trials conducted by him which was not of a high order.

Learned counsel appearing on behalf of the petitioner has submitted that the reasons which have been furnished for declining to renew the engagement of the petitioner are ex-facie, arbitrary and contrary to Article 14 of the Constitution. In an earlier decision of this Court in Shiv Sewak Ram Dwivedi Vs. State of U.P. & Ors.1, it has been specifically held that the competence of Government Counsel cannot be adjudged on the basis of the success ratio in prosecuting cases on behalf of Government since the duty of counsel appearing on behalf of the Government is a much wider duty of ensuring fairness to litigants. It has also been submitted that save and except for a bald statement that the recommendations of the District Judge and the District Magistrate were not in accordance with para 7.08 of the L.R. Manual, no reason has been furnished as to why both the recommendations were found not to be in order. Moreover, even if that was to be the case, it would have been appropriate to call for a fresh report from the District Judge and the District Magistrate. Finally, it has been submitted that the impugned order proceeds on an erroneous basis that the petitioner had argued one appeal between 2008 and 2010 which had been dismissed, whereas this was an appeal by the accused in which the petitioner had appeared for the State and the appeal was dismissed by the Court.

At the outset, it must be noted that the principal ground which appears to have weighed with the Deputy Secretary in declining to renew the term of the petitioner is the success rate in the cases in which he had appeared on behalf of the Government. The impugned order recites that between January 2008 and December 2010, the petitioner conducted 192 sessions trials in which the accused were acquitted in 71 and convicted in 121 resulting in a success ratio of 63.02%. Similarly between 2 January 2011 and 13 August 2012, the petitioner conducted 12 sessions trials in which the accused were acquitted in 5 and convicted in 7 resulting in a success ratio of 58.33%. This, it has been opined, does not reflect a performance of a high order. We are of the view that in deciding whether to renew the term of a panel counsel, the success rate of the counsel who is appointed to conduct a sessions trial, cannot be made the basis of a determination that unless the sessions trial ends in a conviction of the accused, the blame must lie on the counsel appearing on behalf of the Government. The duty of a panel counsel appearing on behalf of the Government is a duty which he owes to the cause of the administration of justice. A person who appears on behalf of the Government is not appointed to secure a conviction in a criminal trial at all costs by sacrificing norms of fairness, transparency and proper conduct of a criminal trial. A person who is appointed as a Government counsel owes a duty to the administration of justice which is far higher than the narrow purpose of securing conviction in a criminal trial.

As the facts of the present case would show, between 2008 and 2010 the petitioner had secured a conviction in 63% of the sessions trials whereas between 2011 and 2012 the percentage of convictions was 58%. These figures by no stretch of logic reflect the absence of competence on the part of the petitioner. As a matter of fact, it is not the case of the State that there was any deficiency in the performance of the petitioner in the course of any particular criminal trial which had led to the acquittal of the accused. Bare statistics in regard to the percentage of convictions is not a reflection on the competence of the counsel or his ability or performance.

A similar view has been taken by this Court in Shiv Sevak Ram Dwivedi (supra). While explaining the role of a panel lawyer appearing on behalf of the State, the Division Bench observed as follows:-

"A State Law Officer, as a penal lawyer engaged by the State Government, or the instrumentalities of the State must advice his client in accordance with law, and defend the interest of his client keeping in view and having regard to the rights of the citizens as guaranteed and duties as prescribed in the Constitution of India and the laws. While protecting the interest of the State he has to assist the court to arrive at a just, fair and valid resolution of disputes. He is not expected to win or to secure favourable orders for the State in every case. His performance for continuing his engagement or renewal of his term is not to be measured in the number, or percentage of cases won by him for the State. The decision in the cases for or against the State is taken by Judges appointed to decide cases. The considerations for engagement and renewal of his term should be his competence, honesty, integrity and sincerity, having regard to the human values and rule of law. He must bear true faith and allegiance to the Constitution of India to ensure protection of the rights of the citizens of India and help the State to ensure to protect such rights subject to their duties and good governance by the State. Any other consideration for appointment and renewal of his term will be illegal, arbitrary, unfair, unreasonable and against the rule of law, which must be jealously guarded by the State in a democratic society."

We are in respectful agreement with the view expressed by the Division Bench.

The impugned order also refers to a solitary case where the petitioner is alleged to have appeared on behalf of the State in a criminal appeal which resulted in acquittal. On the contrary, the petitioner has averred in paragraph 47 of the petition that the criminal appeal in question was filed by the accused and which was in fact dismissed by the Court. This would only reflect upon the lack of application of mind by the Deputy Secretary while passing the impugned order. The impugned order also notes that the recommendations which were made in favour of the petitioner by the District Judge and by the District Magistrate were not in accordance with para 7.08(3) of the L.R. Manual. How the recommendations were deficient and what aspects were required to be dealt with has not been explained. Moreover, if the recommendations were not in a particular format, a remit should have been made to the District Judge and to the District Magistrate for submitting a fresh report in terms of the requirements of the Manual.

For these reasons, we are of the view that the impugned order dated 7 May 2014 declining to renew the term of the petitioner as Assistant District Government Counsel (Criminal) suffers from a palpable non-application of mind to the material facts. The Deputy Secretary has allowed extraneous considerations to weigh in the decision making process. The reasons which have been disclosed to the petitioner have absolutely no bearing on his competence, integrity or upon the diligence with which he has performed during his term as counsel for the Government.

In this view of the matter, we are inclined to allow the petition. We, accordingly, do so and set aside the impugned order dated 7 May 2014. We direct a fresh consideration of the application of the petitioner for renewal of his term of appointment. This exercise shall be concluded strictly in accordance with law no later than within a period of two months from the receipt of a certified copy of this order.

In the meantime, the Court has been informed that on 10 June 2014, an advertisement has been issued for the appointment to six posts of Assistant District Government Counsel (Criminal). Any appointment which is made in the meantime on the post on which the petitioner was working, would necessarily abide by the result of the application of the petitioner for renewal of his existing term.

The writ petition is disposed of in the aforesaid terms. There shall be no order as to costs.

Order Date :- 02.07.2014

GS

(Dr. D.Y. Chandrachud, C.J.)

(Dilip Gupta, J.)