Anil Kumar Singh Yadav vs State Of U.P.Thru. Prin. Secy. Law ...
2018 Latest Caselaw 4104 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

COURT NO.5
 
Writ Petition  No.  34805 of 2018 [MB]
 
Anil Kumar Singh Yadav				..... Petitioner
 
Versus
 
State of U.P. and others 					...... Respondents
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Alok Mathur, J.

Heard.

As the controversy involved in the instant writ petition is purely legal and no factual dispute is involved, with the consent of parties, we proceed to hear and decide the matter finally at the admission stage itself.

Anil Kumar Singh Yadav- petitioner has filed the instant writ petition assailing the order dated 31.10.2018 passed by State Government whereby the engagement/empanelment of the petitioner for fourteen days on temporary basis on the post of Assistant District Government Counsel (Civil), Ghazipur has been cancelled.

According to the petitioner, in terms of the provisions of Para 7.10 of the Legal Remembrancer Manual, the petitioner was engaged an Assistant District Government Counsel (Criminal) in District Court, Ghazipur on temporary basis/stop-gap arrangement for a period of 15 days vide order dated 29.4.2015. It has been asserted that his appointment on temporary basis was till engagement of a regular candidate as Assistant District Government Counsel (Criminal).

According to the petitioner, for engagement/empanelment of the Lawyers as Assistant District Government Counsels (Civil & Criminal) and District Government Counsels (Civil & Criminal), in District Courts, Ghazipur there was already an advertisement but instead of filling up the same by engagement/empanelment, the opposite party no.3 issued another advertisement on 13.2.2018. It is said that the petitioner was allowed to discharge his duties and functions as Assistant Government Counsel (Criminal) on the basis of the recommendations of the concerned authorities. Therefore, he is entitled to continue till a regularly engaged/empaneled person joins the post of Assistant District Government Counsel (Criminal).

Refuting the allegations of the petitioner, learned State Counsel has submitted that the very appointment of the petitioner as Assistant Government Counsel (Criminal) by invoking provisions of Para 7.10 of the L.R,'s Manual was bad in law as in terms of Para 7.10 only officiating appointment in casual vacancies is to be made. Nowhere it has been stated by the petitioner that how many persons were working as Assistant Government Counsel when the officiating appointment of the petitioner was made. It has also been submitted that after issuance of the advertisement dated 13..2.2018, the process for engagement/empanelment of regular incumbent on the posts is pipeline and very soon the process for regular appointment would be completed. 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.

In the matter of engagement of a District Government Counsel,the concept of public office does not come into play and the choice is that of the Government and none can claim a right to be appointed. That must necessarily be so because it is a position of great trust and confidence.

In the case at hand the petitioner himself has stated that his appointment was made in terms of provisions of Para 7.10 of the Legal Remembrancer's Manual, and as such we deem it proper to reproduce Para 7.10 of the Legal Remembrancer's Manual and to examine whether the very engagement of th petitioner 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."

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.

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 for regular appointment of Government Counsel or a novel procedure to remove the present incumbent by engaging 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. 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.

It may be added here that no lawyer has a right to be appointed as a State Government Counsel or as Public Prosecutor at any level nor does he have a right to claim extension in the term for which he/ she is initially appointed. It is the domain of the State Government to appoint the Counsel to contest the State case and petitioner cannot claim appointment or extension as a matter of right. At the best he can claim consideration for any such appointment or extension upon expiry of their respective terms, however, such consideration shall have to be in accordance with the norms settled for such appointment and on the basis of their merit, suitability and performance and further extension may be subject to satisfactory work, conduct and integrity.

As it has been brought on our notice that an advertisement has already been issued way back in the month of February, 2018 for filling the posts of Government Counsels in District Ghazipur, we direct the official respondents to complete the process of engagement/empanelment by 15th January, 2019 and a compliance report be filed before the Court in the third week of January, 2019.

One very interesting fact of the case at hand is that in paragraph 6 of the writ petition, the petition has stated that the petitioner was engaged an Assistant District Government Counsel (Criminal) on temporary basis/stop gap arrangement for a period of 15 days vide order dated 29.4.2015, copy whereof has been brought on record as Annexure-2 to the writ petition. After going through the language of the said letter, we are of the view that this letter cannot be termed as an engagement order. As a matter of fact, it appears that in response to a letter dated 9.4.2015 of the District Magistrate, Ghazipur the State Government has communicated that in view of the provisions of Para 7.10 of the L.R. Manual, for engagement as Government Counsel for a period of less than 15 days, the District Magistrate himself is the competent authority. The petitioner has not brought on record any other order issued by the District Magistrate or by any other competent authority engaging him as Assistant District Government Counsel pursuant to the order of the State government and it is a matter of thorough probe as to how the communique of the State Government has been treated as an order of engagement.

In view of the aforesaid legal position and discussion, we are not inclined to exercise our discretionary jurisdiction under Article 226 of the Constitution of India and the writ petition being misconceived is liable to be dismissed, which is hereby dismissed. Costs easy.

Let a copy of this order be sent to the Chief Secretary, State of U.P. and the Legal Remembrancer for compliance within three days.

Order Date: 4.12.2018

MH/-