Guru Prasad vs State Of U.P. & 2 Others
2014 Latest Caselaw 6565 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 

 
Civil Misc. Writ Petition No. 39935 of 2014
 

 
Guru Prasad 					        .......................Petitioner.
 

 
				Vs. 
 

 
State of U.P. & others 				           ..............Respondents. 
 

 

 
Hon'ble Rakesh Tiwari, J.

Hon'ble Ashok Pal Singh, J.

(Delivered by Justice Rakesh Tiwari)

Heard Sri Govind Krishna, learned counsel for the petitioner and learned standing counsel for the State-Respondents and perused the record.

The petitioner has come up in the present petition against refusal to renew the petitioner's term as District Government Counsel (Revenue), Fatehpur vide order dated 30.05.2014 by the State Government.

Learned counsel for the petitioner submits that the petitioner was engaged on 30.04.2011 for performing the duties as the District Government Counsel (Revenue) Fatehpur; that vide office memo dated 07.11.2012 respondent no. 2 was informed with regard to the ratio of success in cases conducted by the petitioner; that engagement of the District Government Counsel and Assistant District Government Counsel in State of U.P. has been subject to judicial scrutiny by Lucknow Bench of this Court in several writ petitions which were disposed of with certain directions on 06.01.2012 and 12.01.2012. The operative portion of said judgment is quoted as under:

"253. (1) In view of above, the writ petitions are allowed and a writ in the nature of certiorari is issued quashing the impugned Government Order dated 13.03.2008 contained in Annexure-1 to writ petition No. 7851 (M/B) of 2008 to the extent of the amendment made in the L.R. Manual deleting the consultation process with the District Judge with consequential benefits.

(2). A further writ, order or direction in the nature of certiorari is issued quashing the orders dated 17.04.2011 and 20.04.2011, contained as Annexures-1 and 2 respectively to writ petition no. 3922 (M/B) of 2011, order dated 28.04.2011, followed by order dated 30.04.2011 contained as Annexures No. 26 and 27 respectively in writ petition no. 4817 (M/B) of 2011 order dated 17.04.2011 and order dated 19.04.2011, contained as Annexures No. 1 and 2 respectively in writ petition no. 4084 (M/B) of 2011 and the impugned order dated 18.04.2011, passed in writ petition no. 3860 (M/B) of 2011 contained in Annexure No. 1 with costs.

Aggrieved by said order, petitioner and others challenged the aforesaid order by means of Special Leave Petition No. 21669 of 2012 and thereafter Civil Appeal No. 5388 of 2012 in which the Apex Court vide order dated 17.07.2012 directed for consideration of the matter. The operative portion of said order is quoted as under:

"The renewal/reconsideration/appointment shall be done by the concerned authority in the above manner. We would clarify that all the appointments either directly or by way of renewal/reconsideration shall only be made in consultation with the High Court and/or the District and Sessions Judges as the case may be. All concerned shall duly abide, and without default, with the process of selection and appointment, as afore-stated.

All the I. As and appeals are, accordingly, disposed of."

It is also submitted by the learned counsel for the petitioner that in compliance of the direction of the Apex Court, respondent no. 3 issued office memo on 18.08.2012 pursuant to which District Judge, Fatehpur recommended the case of the petitioner along with other candidates vide memo dated 17.10.2012; that the allegation contained in the impugned order regarding supporter of B.S.P. party of petitioner as informed by Superintendent of Police, Fatehpur to the District Judge, Fatehpur is categorically denied in the writ petition which has not been controverted by the respondent.

He further submitted that the engagement of Government Counsels in the Districts are being given effect after strictly complying the provisions contained in L.R. Manual; that appointment and engagement of District Government Counsels is not the same as of his counsel by a private litigant and there is obviously an element of the continuity in government appointment unless the appointee is found to be unsuitable either by his work, conduct or age; that all the Government Counsels are paid remuneration out of the public exchequer. Therefore, there is clear public element attached to the office or post as has been held by the Apex Court in the case of Kumari ShriLekha Vidyarthi Vs. State of U.P. & others AIR 1992 SC 537. However in the present case respondent no. 2 has absolutely ignored this legal aspect and has arrived at an incorrect conclusion with orders dated 30.5.2014 and 2.6.2014 which are absolutely illegal and arbitrary in nature.

Learned counsel for the petitioner lastly submitted that from the above facts and circumstances, it can be safely inferred that the order provided in writ petition no. 8248 (M/B) of 2011: Bishan Pal Saxena Vs. State of U.P. lost its significance after the direction of the Apex Court dated 17.07.2012 in Civil Appeal No. 5388 of 2012 filed by the petitioner which had also been brought to the notice of Special Secretary, Department of Law and Justice, Secretariat, Lucknow/ respondent no. 2 by the District Magistrate, Fatehpur/respondent no. 3, but it appears that it escaped the attention of respondent no. 2. The same is not reflected in the order impugned.

In support of his case, learned counsel for the petitioner has relied upon the following cases:-

(1) 2003 (52) ALR 302: Virendra Pal Singh Rana Vs. State of U.P. & others.

(2) 2005 (1) AWC 379: Ghanshyam Kishor Bajpayee Vs. State of U.P. & others.

(3) 1999 CRI. L. J. 521: Vijay Shankar Mishra Vs. State of U.P. and others.

Per contra, in paragraph 8 of the counter affidavit filed on behalf of respondents no. 1 to 3, it has been averred that after examining the matter objectively, it was revealed that initial engagement of the petitioner was without consultation with the District Judge as required under the amended provisions of L.R. Manual and was not only void ab initio but also contrary to law, as such there was no occasion for the state to consider renewal of a void appointment. It is also averred therein that the order of the State Government declining renewal of petitioner as District Government Counsel (Revenue) is neither based on political influence nor on the police report, but has been passed strictly in accordance with the directions of the Apex Court in the case of State of U.P. Vs. Ajay Kumar Sharma & others.

Before considering the merit of the case we would like to refer the ratio of the cases cited by the petitioner.

In the case of Virendra Pal Singh Rana Vs. State of U.P. & others (supra), the order dated 22.2.2003 and consequential order dated 4.3.2002 were challenged by which appointment of the petitioner therein as D.G.C. (Criminal) in District Court, Pilibhit had been terminated. He further challenged the selection/appointment on the post of D.G.C. (Crl.) vide order dated 2.3.2003. It appears that the petitioner in that case was removed by the then State Government because he was Thakur by caste though his work was satisfactory and his term had been extended from time to time which was supported by confidential report of the District Judge as well as District Magistrate.

Considering paragraph 7.06 (1) of the L.R. Manual regarding 'appointment and renewal' as well as paragraph 7.08 of the said Manual regarding 'renewal of term', the Court observed that competent lawyers of integrity and sound knowledge be appointed and the State Government to consult the Hon'ble Chief Justice of High Court on the recommendation received by it whose opinion must ordinarily be accepted and to amend the L.R. Manual accordingly. The Court further observed that it was nowhere mentioned that the District Judge was consulted in the matter at all, therefore, the question arose as to what would be the legal position when there is a conflict between the opinion of the District Judge and the opinion of the District Magistrate?. The Court held that in those circumstances the opinion of the District Judge must prevail over the opinion of the District Magistrate because the District Judge is in the best position to know about the performance, conduct, knowledge of law, etc. of the Government Counsel, but the District Magistrate can only have a limited knowledge about the same, and that too indirectly. On the other hand, the District Judge would be personally aware of the performance and conduct of the Government Counsel as they appear before him, and also before his colleagues in the court. In this regard paragraph 28 of this judgment is quoted as under:

"28. Time, has, therefore, come when this practice must stop so that highly competent lawyers of integrity and sound knowledge of law are appointed as Government Counsels and for this purpose we recommend to the State Government to consult Hon'ble the Chief Justice of the High Court and suitably amend the L.R. Manual accordingly. Till that is done, ordinarily the recommendation of the District Judge in the matter of appointment/renewal of the Government Counsels in the District Court in the State must ordinarily be accepted".

In the case of Ghanshyam Kishor Bajpayee Vs. State of U.P. & others (supra) relied upon by learned counsel for the petitioner, there also was a conflict in the opinions of the District Judge and the District Magistrate regarding performance of the District Government Counsel, but in the meantime, the government changed and the new Government initiated fresh exercise for renewal of term. On the basis of the complaint petitioner herein working as District Government Counsel was removed only on the ground that he was indulging in political activities which information was based only on the newspaper reporting. The order was found to be based on the newspaper report which have no evidentiary value. In these circumstances the court held that instead of dealing with each case State Government chose to pass omnibus order relieving petitioners who were working as District Government Counsels.

Again in the case of Vijay Shankar Mishra Vs. State of U.P. and others (supra), the court held that post of Public Prosecutor is akin to public office and is a post of trust under the State. Paragraph 45 which is relevant, is quoted as under:

"45. From the aforesaid provisions as well as other provisions contained in the Code of Criminal Procedure, it is evident that the duties and functions of the Public Prosecutor are statutory. The Public Prosecutor may not be holding a post or any other similar post as a Public or Government servant holds, but he certainly holds a public office of trust under the State. It is an office of responsibility, more important than many others, because Public Prosecutor is not only required to prosecute the cases with detachment on the one hand and yet with vigour on the other. He is empowered under the provisions of the Code of Criminal Procedure to withdraw the prosecution of a case on the direction of the State Government."

In view of what has been stated above, we are of the considered opinion that consideration for appointment or renewal/extension of District Government Counsels is that his integrity should be beyond doubt apart from success ratio, etc. It may be noted here that to be independent and to dispense high quality justice the Judges require highly competent Government Counsels of integrity and good knowledge of law. These factors can best be known to the District Judge and it is not so well known to the District Magistrate. If some information/material comes before the District Magistrate he can forward it to the District Judge, but after considering it if the District Judge still is of the opinion that the person should be appointed as Government Counsel or his term renewed then the opinion of the District Judge must ordinarily prevail. In the present case, District Judge reported that petitioner has affiliation to 'Bahujan Samajwadi Party' so the petitioner does not come under the definition of paragraph 7.06 (3) of L.R. Manual. For ready reference paragraph 7.06 (3) of said Manual is quoted as under:

"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 Government reserves the power to terminate the appointment of any District Government Counsel at any time without assigning any cause."

Thus, non renewal of term of the petitioner on ground that his initial appointment was itself void without imposing any stigma cannot be said to be arbitrary and illegal. Further more in the instant case the District Judge was not consulted which is mandatory requirement under the amended provisions of L.R. Manual. Hence the Government has rightly taken a decision not to renew a void ab initio appointment made contrary to law.

Therefore, we are also of the view that all three cases relied upon by learned counsel for the petitioner, are clearly distinguishable with the facts and circumstances of the present case.

For all the reasons stated above, there is no illegality or infirmity in the order impugned in this petition.

The writ petition lacks merit and is, accordingly, dismissed. No order as to costs.

Dated: 17.09.2014

RCT/-