Allahabad High Court

Santosh Kumar Pandey vs State Of U P And 17 Others on 7 May, 2019

Bench: Pradeep Kumar Baghel, Pankaj Bhatia




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 21
 
Case :- WRIT - C No. - 4794 of 2019
 
Petitioner :- Santosh Kumar Pandey
 
Respondent :- State Of U. P. and 17 Others
 
Counsel for Petitioner :- Achyut Jee
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pradeep Kumar Singh Baghel, J.

Hon'ble Pankaj Bhatia, J.

(Per : Hon'ble Mr. Justice Pradeep Kumar Singh Baghel, J.)

I agree with the view of my learned brother and the final order proposed by him but I would like to add few lines of my own to highlight some important aspect of the question involved in the matter.

A spate of writ petitions are filed in this Court whenever the State Government appoints Government Counsel (Civil, Criminal and Revenue) or refuses to renew their tenure and proposes new panel in the districts or after change of the Government, in spite of the fact that the Supreme Court in unbroken line of decisions has settled the law in respect of appointment, termination and renewal of tenure of the Government Counsel. The litigation is unabated.

The facts of the case have been very clearly and succinctly set out by my learned brother and it is not necessary to repeat the same.

Before adverting to the judgments of the Supreme Court on the issue, it would be appropriate to advert to the provisions of the Legal Remembrancer's Manual1 and the relevant provisions of the Criminal Procedure Code, 19732.

The L.R. Manual came into force in the year 1975. It contains executive instructions. It regulates, amongst others, the appointments of the District Government Counsel (Criminal, Civil and Revenue) and the State Counsel in the High Court.

Chapter I of the L.R. Manual deals with interpretations. Paragraph 1.03 of the L.R. Manual provides that there shall be two branches in the Secretariat of the State Government. In both the branches the Judicial Officers are appointed.

Chapter III of the L.R. Manual deals with the Legal Remembrancer to the Government and his duties. Paragraph-3.02 thereof says that he is also called Judicial Secretary. Paragraph- 3.04 says that he is the Chief Law Officer of the State. He is a senior Judicial Officer of the District Judge rank. Amongst other, one of his duties is to deal with the appointment of law officers in the High Court and the Supreme Court. Paragraph- 3.17 provides that there shall be the posts of Additional, Joint, Deputy and Assistant Legal Remembrancers, and every Additional, Joint and Deputy Legal Remembranchers shall be the ex officio Special Secretary, Joint Secretary and Deputy Secretary respectively.

One of the objects to appoint Judicial Officers in the Secretariat is that they are ex officio authorised to act for the Government in respect of all judicial proceedings and to give proper legal advise to the Government. Paragraph-3.03 lays down the duties of the Judicial Secretary-cum- Legal Remembrancer.

Chapter VII of the L.R. Manual contains the provisions relating to the District Government Counsel. Paragraph- 7.03 enumerates the procedure for appointment of the Government Counsel in the district. It includes the qualification, consultation by the District Magistrate with the District Judge in respect of the suitability and merit of each candidate. Paragraphs- 7.03 and 7.07 of the L.R. Manual, being relevant for the purpose, are extracted below:

"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 practised on criminal, civil and revenue side.

(2) The District Government Counsel and legal practitioners of the neighbouring 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. *** *** ***

7.05. *** *** ***

7.06. *** *** ***

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.

NOTE-- The term political activity includes membership of any political party or local body as also press reporting work."

Insofar as the appointment of the Public Prosecutors is concerned, it is governed by the provisions of the Cr.P.C. but the renewal is regulated by the L.R. Manual. The State of Uttar Pradesh by the Uttar Pradesh Act No. 18 of 1991 with effect from 16th February, 1991 amended sub-section (1) of Section 24 of the Cr.P.C. and sub-sections (4), (5) and (6) of Section 24 have been omitted. Similarly, the words "after consultation with the High Court" have also been omitted from sub-section (1) of Section 24 Cr.P.C..

The issue with regard to nature of office of the Government Pleader came to be considered for the first time in the case of Mundrika Prasad Singh v. State of Bihar3, wherein Hon'ble Mr. Justice V.R. Krishna Iyer speaking for the Bench held that the Government Pleader holds a public office. The Court quoted with approval the observations of the Madras High Court in the case of Ramachandran v. Alagiriswami4 which reads thus:

"The duties of the Government Pleader, Madras are duties of a public nature. Besides, as already explained the public are genuinely concerned with the manner in which a Government Pleader discharges his duties because, if he handles his cases badly, they have ultimately to foot the bill. The Rajasthan case does not take into account all the aspects of the matter.

(36) The learned Advocate General argued that the Government Pleader, Madras is only an agent of the Government, that his duties are only to the Government who are his principals and that he owes no duty to the public at all and that for that reason he would not be the holder of a Public Office.

(37) It is difficult to accept this view. The contention of the learned Advocate General may have been less untenable if the duties of the Government Pleader were merely to conduct in courts cases to which Government are a party. But, as the rules stand, he has a number of other duties to discharge. Besides, even if his only duty is the conduct of cases in which Government have been impleaded, still as explained more than once before the public are interested in the manner in which he discharges his duties.

(90) I am clearly of opinion that having regard to the fact that the Government Pleader of this court is employed by the State on remuneration paid from the public exchequer and having regard to the various functions and duties to be performed by him in the due exercise of that office, most of which are of an independent and responsible character, the office must be held to be a public office within the scope of a quo warranto proceeding."

In Kumari Shrilekha Vidyarthi and others v. State of U.P. and others5 the Supreme Court has elaborately analysed the provisions of the L.R. Manual, the concept of presence of some public element in the State action while appointing the Government Counsel, the scope of judicial review and the application of Article 14 of the Constitution. The Court held that even in the sphere of contractual matters the State cannot exercise unbridled power unfettered by the requirement of Article 14. The State must act in the public interest and apply the requirement of Article 14 of the Constitution in the matter of appointment of the Government Counsel also. This root authority has been consistently followed by the Supreme Court in a large number of decisions. Reference may be made to the following judgments:

(i) Harpal Singh Chauhan and others v. State of U.P.6;

(ii) State of U.P. and another v. Johri Mal7;

(iii) State of U.P. v. Ramesh Chandra Sharma and others8;

(iv) State of U.P. and others v. U.P. State Law Officers Association and others9;

(v) State of Uttar Pradesh and others v. Rakesh Kumar Keshari and another10;

(vi) Ghulam Nabi Dar and others v. State of Jammu and Kashmir and others11;

(vii) State of Uttar Pradesh and others v. Ajay Kumar Sharma and another12; and

(viii) State of Uttar Pradesh and others v. Ajay Kumar Sharma and another13.

The golden thread, which runs through all these decisions, is that the appointment of the Government Counsel must be made only on the basis of their merit, competence and in the public interest. The Supreme Court time and again has laid emphasis for non-political appointments and that the political affinity with a party in power should not be a consideration for the appointment.

In Johri Mal (supra) the Supreme Court has culled out the principle in the following terms:

"44. Only when good and competent counsel are appointed by the State, the public interest would be safeguarded. The State while appointing the Public Prosecutors must bear in mind that for the purpose of upholding the rule of law, good administration of justice is imperative which in turn would have a direct impact on sustenance of democracy. No appointment of Public Prosecutors or District Counsel should, thus, be made either for pursuing a political purpose or for giving some undue advantage to a section of the people. Retention of its counsel by the State must be weighed on the scale of public interest. The State should replace an efficient, honest and competent lawyer, inter alia, when it is in a position to appoint a more competent lawyer. In such an event, even a good performance by a lawyer may not be of much importance."

(emphasis supplied)

The aforesaid observation of the Supreme Court has been reiterated and affirmed by the Supreme Court in the case of Ajay Kumar Sharma and another14 (supra). Paragraph-20 of the said judgement reads as under:

"20. ...In Johri Mal15, this Court has categorically rejected the claim of an advocate to continuous renewal or reappointment as a Government Advocate. We entirely agree with this exposition of the law. We think that the correct approach is to ensure the competency of advocates being considered for appointment of Additional District Government Counsel, Assistant District Government Counsel, Panel lawyers and Sub District Government Counsel. It seems to us that it would be an incorrect approach to start this process by considering the re-appointment or renewal of existing Government Counsels since that would dilute, nay, dissolve the discretion of the Government to appoint advocates whom they find trustworthy. The High Court has followed the second approach leading to the dissatisfaction of the State Government and their resentment that their realm of discretion has been eroded for no justifiable reason."

In the case of State of Punjab and another v. Brijeshwar Singh Chahal and another16, the Supreme Court elaborately considered all the previous precedents on the issue. Though the case arose in different context but it has laid down the law in respect of appointment of the Government Counsel for all States including the State Counsel who are appointed in the High Court also. The Supreme Court formulated four questions for determination. The question nos. (i), (ii) and (iv) are only in respect of State of Punjab and Haryana, so we are omitting the same. However, question no. (iii) is relevant for our purpose as in answer to the third question the law has been laid down by the Supreme Court for all the States. The question no. (iii) reads as under:

"(iii) Whether appointment of Law Officers by the State Governments need to be made on a fair, reasonable, non-discriminatory and objective basis."

While answering question no. (iii) the Supreme Court held that the Government and its instrumentality are the trustee of power vested in them and custodians of public interest, hence it is the duty of the State that they must exercise their power to engage advisers in a fair, reasonable, non-discriminatory and objective manner like they are expected to do for engagement/ appointment of the civil servants, agents, representatives, etc. It has been held that arbitrariness has no place in a polity governed by the rule of law. Article 14 of the Constitution comes into place, if there is any arbitrary decision by the State Government. The Supreme Court in this case has considered the judgments of Kumari Shrilekha Vidyarthi (supra), U.P. State Law Officers Association (supra) and Johri Mal (supra). The Court has highlighted the need for appointment of the Government Counsel only on the basis of competence, sufficient experience and also standing at the Bar. The Court expressed its anguish that in certain cases recommendations are made by the District Magistrates and the persons who have a political affinity to party in power and the State is not expected to cancel their appointment with a change in the Government because a new party has taken over charge of the Government. The Court has emphasized the need of age-old tradition of appointing District Government Counsel in consultation with the District Judge. Following passage of Brijeshwar Singh Chahal (supra) in this regard is apposite:

"38. ...The State Government counsel represents the State and thereby the interest of the general public before a court of law. This requires that Government Counsel have character, competence, sufficient experience as also standing at the Bar. The need for employing meritorious and competent persons to maintain the standard of the high office cannot be minimized, observed the Court, particularly, when the holders of the post have a public duty to perform. The Court also expressed anguish over the fact that in certain cases the recommendations are made by the District Magistrate having regard to the political affinity of the lawyers to the party in power and that State is not expected to rescind the appointments with the change in the Government because a new party has taken over charge of the Government. This Court also recognized the age-old tradition of appointing the District Government Counsel on the basis of the recommendations of the District Collector in consultation with the District Judge. The fact that the District Judge, who is consulted while making such appointment knows the merit, competence and capability of the lawyer concerned, was also recognized by the Court."

(emphasis supplied)

In the above case, the Supreme Court has observed that the State is the single largest litigant and the statistics shows that in nearly 80% of the litigation pending in the Courts the State or one of its instrumentalities is party to it. The Court has highlighted the need of good assistance of the Government Counsel for quality of good judgments. The Court has further observed that quality of judgments is adversely affected by poor assistance at the Bar who are not sufficiently equipped in profound knowledge of subject, lack of experience in dealing with the different branches of law and above all high integrity. The Court has opined that if a fair, transparent and non-discriminatory process is not adopted, the administration of justice would badly suffer. The State must respect rule of the law. The State would fail in discharging its public duty to protect the public interest by appointing meritorious persons. Poor quality of assistance rendered to the Courts by the State Counsel can cause serious harm to higher value of the justice. The Court has sum up its decision in the following terms:

"41.1. The Government and so also all public bodies are trustees of the power vested in them.

*** *** ***

41.6. Appointment of Government Counsel at the district level and equally so at the High Court level, is not just a professional engagement, but such appointments have a "public element" attached to them.

41.7. Appointment of Government Counsel must like the discharge of any other function by the Government and public bodies, be only in public interest unaffected by any political or other extraneous considerations.

41.8. The Government and public bodies are under an obligation to engage the most competent of the lawyers to represent them in the Courts for it is only when those appointed are professionally competent that public interest can be protected in the Courts.

41.9. The Government and public bodies are free to choose the method for selecting the best lawyers but any such selection and appointment process must demonstrate that a search for the meritorious was undertaken and that the process was unaffected by any extraneous considerations.

41.10. No lawyer has a right to be appointed as a State/Government counsel or as Public Prosecutor at any level, nor is there any vested right to claim an extension in the term for which he/she is initially appointed. But all such candidates can offer themselves for appointment, re-appointment or extension in which event their claims can and ought to be considered on their merit, uninfluenced by any political or other extraneous considerations.

41.11. Appointments made in an arbitrary fashion, without any transparent method of selection or for political considerations will be amenable to judicial review and liable to be quashed.

41.12. Judicial review of any such appointments will, however, be limited to examining whether the process is affected by any illegality, irregularity or perversity/irrationality. The Court exercising the power of judicial review will not sit in appeal to reassess the merit of the candidates, so long as the method of appointment adopted by the competent authority does not suffer from any infirmity."

Guided by the settled principle of the law referred above, we are of the view that in the case at hand the provisions of the L.R. Manual and the law laid down by the Supreme Court in the decisions referred above have been followed in breach. As noticed by my learned Brother in his judgment, the advertisement was issued on 08th December, 2017 inviting applications for appointment on the posts of District Government Counsel, Additional District Government Counsel and Assistant District Government Counsel. The District Magistrate in consultation with the District Judge sent a list to the State Government with certain directions, which were duly complied with by the District Magistrate after consultation with the District Judge, Ballia. This time a list of 51 names were sent by the District Magistrate but the Under Secretary, State of U.P. on 21st August, 2018 sent a communication to the District Magistrate to recommend the names of 19 persons. From a perusal of the original record it transpires that 19 fresh names were sent by the Hon'ble Minister on 21st August, 2018 for their appointment on 14-days basis in terms of Paragraph 7.10 of the L.R. Manual.

It is pertinent to mention that the District Magistrate in his communication dated 16th September, 2018 has clearly pointed out that in respect of the names recommended by the Hon'ble Minister the District Judge has not been consulted with regard to their experience, merit and character. Their character verification has not been made by the Police. The District Magistrate has also noted with regard to their engagement for 14-days in terms of the provisions under Chapter VII. Paragraph 7.10 may be met only from the panel prepared in consultation with the District Judge. The State Government ignoring the said letter issued the impugned order. The relevant part of the communication/ letter of the District Magistrate dated 16th September, 2018 reads as under:

"mijksDr vf/koDrkx.k ftudk uke 'kklu ls izkIr gqvk gS] muds dk;Z vuqHko] O;olkf;d vkpj.k] xq.kkoxq.k ds lEcU/k esa u rks ek0 tuin U;k;k/kh'k dh dksbZ vk[;[email protected] izkIr gS vkSj u gh iqfyl foHkkx ls mudk pfj= lR;kiu gh gqvk gSA

vr,o mijksDr ds n`f"Vxr 'kkldh; fgr esa oknksa ds iSjoh gsrq esjk lqfopkfjr er gS fd 'kklu dks Hksts x;s iSuy tks ek0 tuin U;k;k/kh'k cfy;k }kjk laLrqr gS] esa ls gh fof/k ijke'khZ funsf'kdk ds v/;k; 07 ds izLrj 7-10 ds izkfo/kkuksa ds vUrxZr 14&14 fnuksa ds fy, vLFkk;h oSdfYid O;oLFkk esa 'kkldh; vf/koDrkx.k ds fjDr inksa ij vkcU/ku gsrq fu.kZ; ysus dk d"V djsaaaA"

The Under Secretary in his communication dated 29th November, 2018 issued the order for the appointment of 14 Government Counsel (Criminal, Civil and Revenue) under Paragraph 7.10 of the L.R. Manual.

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 others19.

The Supreme Court in the case of Tarlochan Dev Sharma (supra) has observed as under:

"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 their 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. ..."

The said judgment has been followed by the Supreme Court in the case of Dipak Babaria (supra) wherein the Court has considered this issue. Relevant part of the judgment reads as under:

"69. Besides, the present case is clearly a case of dictation by the State Government to the Collector. As observed by Wade and Forsyth in the 10th Edn. of Administrative Law:

"If the Minister's intervention is in fact the effective cause, and if the power to act belongs to a body which ought to act independently, the action taken is invalid on the ground of external dictation as well as on the obvious grounds of bad faith or abuse of power."

The observations by the learned authors to the same effect in the 7th Edn. were relied upon by a Bench of three Judges of this Court in Anirudhsinhji Karansinhji Jadeja v. State of Gujarat20. In that matter the appellant was produced before the Executive Magistrate, Gondal, on the allegation that certain weapons were recovered from him. The provisions of TADA had been invoked. The appellant's application for bail was rejected. A specific point was taken that the DSP had not given prior approval and the invocation of TADA was non est. The DSP, instead of granting prior approval, made a report to the Additional Chief Secretary, and asked for permission to proceed under TADA. The Court in paras 13, 14, 15 has held this to be a clear case of "dictation", and has referred to Wade and Forsyth on Surrender, Abdication and Dictation."

This Court in the case of Madan Kumar (supra) had the occasion to deal with similar issue. In paragraph-21 of the said judgment the Court has quoted with approval excerpts from the Principles of Judicial Review, 1999 edition, by Professor De Smith and the Administrative Law, 7th Edition by Professor Wade in following terms:

"21. Professor De Smith, in his Principles of Judicial Review 1999 Edition, page 240 has aptly said :

"an authority entrusted with a discretion must not, in the purported exercise of its discretion, act under the dictation of another body or person. In at least two Commonwealth cases, licensing bodies were found to have taken decision on the instructions of the heads of Government who were prompted by extraneous motives. But, as less colourful cases illustrate, it is enough to show that a decision which ought to have been based on the exercise of independent judgment was dictated by those not entrusted with the power to decide, although it remains a question of fact whether the repository of discretion abdicated it in the face of external pressure."

Professor Wade in his Administrative Law, 7th Edition has dealt with "Surrender, Abdication, Dictation" and "Power in the wrong hands" in the following words:

"Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the Courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them....

Ministers and their departments have several times fallen foul of the same rule, no doubt equally to their surprise...."

22. This paragraph of Professor Wade has been applied by the Supreme Court in the case of Anirudhsinhji Karansinhji Jadeja v. State of Gujarat, (1995) 5 SCC 302."

It was submitted by learned counsel for the petitioner that the appointments have been made on the ground of political affiliation of the persons, who have been recommended by the State Government. Hence, the impugned order is totally arbitrary. He further submits that from the record it is evident that the professional competence, integrity and character have not been considered in terms of the provisions of the L.R. Manual, hence no consultation has been made with the District Judge.

We find sufficient force in the submission of learned counsel for the petitioner. From the case of Kumari Shrilekha Vidyarthi (supra), which has been reiterated in the Uttar Pradesh State Law Officers' Association (supra) and Johri Mal (supra), we find that the State is not expected to appoint persons with political affinity with the party in power and appointment made in the arbitrary manner for political consideration will be amenable to judicial review and is liable to be quashed.

We are constrained to observe that in spite of large number of judgments of the Supreme Court on this issue the State Government is appointing the Government Counsel in the State in utter disregard to the principles laid down by the Supreme Court. We are a democratic society and are governed by the rule of law. One of the facets of the rule of law is complete supremacy of the law and it is antithesis to arbitrary and/or unguided discretionary power. The rule of law is one of the basic structures of our Constitution. It is apposite to quote 'the rule of the law requires that the Government should be subject to the law, rather than law subject to the Government.'21.

In Daryao and others v. State of U.P and others22 way back in 1962 the Supreme Court has highlighted the need for the observance of the rule of law in the following terms:

"11. ...The binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis. As Halsbury has observed "subject to appeal and to being amended or set aside a judgment is conclusive as between the parties and their privies, and is conclusive evidence against all the world of its existence, date and legal consequences".

In S.G. Jaisinghani v. Union of India and others23 the Supreme Court has observed as under:

"14. In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the Rule of law."

In Arundhati Roy, In Re24 the Supreme Court has reiterated the law thus:

" "Rule of law" is the basic rule of governance of any civilised democratic polity. Our constitutional scheme is based upon the concept of rule of law which we have adopted and given to ourselves. Everyone, whether individually or collectively is unquestionably under the supremacy of law. Whoever the person may be, however high he or she is, no one is above the law notwithstanding how powerful and how rich he or she may be. For achieving the establishment of the rule of law, the Constitution has assigned the special task to the judiciary in the country. It is only through the courts that the rule of law unfolds its contents and establishes its concept...."

It is a pity that the circumstances compel us to state something more. Our experience shows that the State functionaries in same manner are appointing the State Counsel in the High Court. We are constrained to observe that huge number of State Counsel, who were working for last several years, have been removed by a single stroke of pen and fresh appointments have been made without bearing in the mind the law laid down by the Supreme Court in the above mentioned judgments. We are not getting proper assistance from the State Counsel. It appears to us that in a large number of fresh appointments merit and professional experience ought to have been given due preference in terms of the law laid down by the Supreme Court in the above cases.

Regard being had to the fact that Chapter V of the L.R. Manual deals with the appointment of the Chief Standing Counsel and Standing Counsel in the High Court. Paragraph 5.02 of the L.R. Manual enjoins that the views of the Advocate General or the Chief Justice or any Judge of the High Court may also be taken. For the sake of convenience Paragraph 5.02 of the L.R. Manual is extracted below:

"5.02 Views of Advocate General may be taken-- In making such appointments as aforesaid the Government may, if considered necessary, take into consideration the views of the Advocate General or the Chief Justice or any Judges of the High Court or of any Committee that may be constituted for the purpose. All such appointments shall be notified in the Official Gazette.

NOTE-- General instructions relating to appointment and tenure of the Law Officers of the State as issued under Judicial (A-I) Department Office Memorandum no. 2556(i)/ VII-AI--202-51, dated June 29, 1968, are given in Appendix 'B'."

In this regard in Brijeshwar Singh Chahal (supra) also the Supreme Court has observed for appointment of a Committee on similar line. The Supreme Court in Paragraph- 51.2 of the judgment has directed the State to constitute a Selection Committee to determine the suitable candidates for appointment as State Counsel. The Secretary, Department of Law, in each State shall be Member-Secretary of the Selection Committee. It is provided that the recommendation of the said Committee shall be considered by a Committee of Judges constituted by the Chief Justice. The said Committee shall record its view regarding suitability of the candidates included in the panel. The said direction has been issued for the State of Punjab and Haryana, but the Supreme Court in Paragraph 51.6 has observed as under:

"51.6. We further clarify that although we are primarily concerned with the procedure regarding selection and appointment of Law Officers in the State of Punjab and Haryana and although we have confined our directions to the said two States only yet other States would do well to reform their system of selection and appointment to make the same more transparent, fair and objective, if necessary, by amending the relevant LR Manuals/ Rules and Regulations on the subject."

(Emphasis supplied)

In the light of the judgments of the Supreme Court in Brijeshwar Singh Chahal (supra) and Para 5.02 of the L.R. Manual we would like to have issued a direction to constitute a Committee but no such relief has been sought by the petitioner, hence we left this issue open.

For all the reasons mentioned above, we find that the decision of the State Government for appointment of 14 persons in terms of Paragraph 7.10 of the L.R. Manual is arbitrary, illegal and contrary to the provisions of the L.R. Manual and the law laid down by the Supreme Court in the cases referred above. Accordingly, the writ petition is allowed in terms of the operative portion of the judgment of my learned brother.

Date: 07th May, 2019

Digamber/SKT/-

AFR

RESERVED

Case :- WRIT - C No. - 4794 of 2019

Petitioner :- Santosh Kumar Pandey

Respondent :- State Of U P And 17 Others

Counsel for Petitioner :- Achyut Jee

Counsel for Respondent :- C.S.C.

Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Pankaj Bhatia,J.

(Delivered by Hon'ble Pankaj Bhatia,J.)

Heard Sri Achyut Jee, learned counsel for the petitioner and Sri Neeraj Tripathi, learned Additional Advocate General, appeared on behalf of respondents.

The present petition raises a very important question pertaining to the appointments of District Government Counsel (in short D.G.C.) at the District Court, Ballia. The problem is recurring in nature and although the law on the question is fairly well settled, however, the present petition raises concerns with regard to the manners of powers exercised in making the appointments of D.G.C. at the District Courts.

The allegation made by the petitioner in brief are as follows:

The petitioner is an Advocate and was appointed as Assistant District Government Counsel on 14.1.2015 under the provision of paragraph 7.10 of the Legal Remembrancer's Manual (hereinafter referred to 'L.R. Manual') which governs the manner of appointment of District Government Counsels in the State of Uttar Pradesh. The petitioner discharged his duties till 01.05.2016 and his appointment was renewed from time to time.

The present writ petition has been filed stating that in pursuance of an advertisement issued on 08.12.2017 applications were invited for appointment to the post of D.G.C., A.D.G.C. and Assistant D.G.C. in terms of the provisions of Para 7.3 of L.R. Manual, a copy of the said advertisement has been filed as Annexure-10 to the writ petition. The petitioner, desirous of being appointed, also applied under the said advertisement for being considered for appointment.

In terms of the applications received under the said advertisement, the District Magistrate sent all the applications to the District Judge, Ballia, who in turn, formed a Committee of three judges' for shortlisting for recommending the eligible candidates for being considered for appointment in pursuance of the advertisement dated 08.12.2017. The said Committee constituted by the District Judge, Ballia recommended the name of 254 counsels as suitable for being considered for appointment and the same list was sent by the District Magistrate to the Legal Remembrancer/State Government. The State Government returned the said list of 254 counsels as short-listed by the Committee with a direction to the District Magistrate, Ballia to select three names against one post as advertised in the advertisement dated 08.12.2017. In pursuance of the said directions of the State Government, the District Magistrate once again sent all the records to the District Judge, Ballia for suggesting the names of three persons against one vacancy as was directed by the State Government. The District Judge, Ballia once again formed a Committee of four members and the said Committee interviewed the applicants and shortlisted 51 names as considered appropriate by them for being considered for appointment, the said list of 51 names was sent to the District Magistrate, Ballia, who in turn, forwarded the said list to the State Government/Legal Remembrancer for its consideration and suitable directions. The list of earlier 254 candidates and the subsequent list of 51 candidates has been filed by the petitioner as Annexure-13 to the writ petition. The petitioner claims that his name appears in both the said lists. It is stated and argued at the bar that instead of selecting the candidates out of the said 51 shortlisted candidates, the Under Secretary, State of U.P. vide his letter dated 21.8.2018 sent a letter to the District Magistrate asking him to recommend the name of 19 persons (as mentioned in the letter) for being appointed for a period of 14-14 days. The said list was not carved out, out of the 51 candidates list that was initially forwarded by the District Magistrate (Annexure-13 to the writ petition) The District Magistrate, Ballia, on the basis of the said directives, issued by Under Secretary, recommended the said 19 names as were forwarded to him by the Under Secretary vide his letter dated August 2018 without any change for being appointed in terms of provisions of Para 7.10 of the L.R. Manual. The State Government, vide its order dated 24.11.2018, selected 14 counsels out of the list of 19 counsels as sent by the District Magistrate, Ballia for being appointed on the post of D.G.C., A.D.G.C. and Assistant D.G.C. under the provisions of para 7.10 of L.R. Manual. It is these appointments that are under challenge in this writ petition.

After entertaining the writ petition we had called for instructions from the Standing Counsel and also the records pertaining to the appointments as recommended by the State Government only to verify and peruse the decision making process by which the said appointments were made ignoring the recommendations made by the Committee constituted by the District Judge, Ballia.

Sri Neeraj Tripathi, learned Additional Advocate General, appeared and assisted the Court and forwarded the records pertaining to the manner of appointment. He also brought on record the instructions received through the District Magistrate, Ballia in respect of the averments made in the writ petition. We have taken the said instructions on record and perused the original record in details. The averments made in the writ petition with regard to the recommendations made by the Committee constituted by the District Judge of the 51 candidates and the subsequent forwarding all the said 51 names by the District Judge to the State Government are not in dispute.

From perusal of documents on record as well as the instructions, it is revealed that on 23.8.2018 Sri Brajesh Pathak, Minister for Justice, Political Pension and Additional Power Source, vide letter No. 2064, addressed to the Chief Secretary (Justice), the Hon'ble Minister directed the Chief Secretary that with regard to the appointment of Government Counsels on various posts in the District Ballia, the names of the under written counsels be called for from the District Magistrate along with his proposal. In the said letter, the name of 19 counsels was recorded along with their mobile numbers, a copy of the said letter is extracted here-in-below:

la[;k ,e [email protected]= U;k;0&[email protected]

czts'k ikBd dk;kZy;% d{k la0&91&91, eq[; Hkou

ea=h m0iz0 lfpoky;

fo/kk;h ,oa U;k;]				nwjHkk"k% 0522&[email protected]¼dk0½	
 
jktuSfrd isa'ku	 		la[;k [email protected]@fo-U;k-vfr-ÅtkZ [email protected] 
 
vfrfjDr ÅtkZ L=ksr	 				y[kuÅ	
 
							fnukad 23-08-18
 

 
izeq[k lfpo] U;k;A

d`i;k tuin cfy;k esa 'kkldh; vf/koDrkvksa ds fofHkUu inksa ij fjfDr;ksa ds lkis{k fuEufyf[kr vf/koDrvksa dks 14&14 fnu ds fy, vLFkk;h :i ls vkc) djus gsrq ftykf/kdkjh ls rRdky izLrko izkIr dj vxzsrj dk;Zokgh gsrq izLrqr djs%&

1- Jh latho dqekj flag iq= Jh dsnkjukFk flag ¼eks0&9452350752½] ft0'kk0vf/k0] QkStnkjhA

2- Jh fou; dqekj flag] iq= Jh vkuUns'oj izrki flag ¼eks0&9450780590½] ft0'kk0vf/k0] flfoyA

3- Jh lEiw.kkZuUn nwcs] iq= Jh gfj'kadj nwc s¼eks0&9453776085½] ft0'kk0vf/k0] jktLoA

4- Jh lq/khj dqekj feJk] iq= Jh 'kksdgj.k feJ ¼eks0&9450780029½]lgk0 ft0'kk0vf/k0] QkStnkjhA

5- Jh vfuy ik.Ms;] iq= jh dsnkj ukFk ik.Ms; ¼eks0&8115779009½] lgk0 ft0'kk0vf/k0]QkStnkjhA

6- Jh lanhi dqekj frokjh iq= Jh ohjsUnz frokjh ¼eks0&9415659131½] lgk0 ft0'kk0vf/k0]QkStnkjhA

7- Jh fou; dqekj flag iq= Jh d`".k uUn flag ¼eks0&9839463730½] lgk0 ft0'kk0vf/k0]QkStnkjhA

8- Jh g"kZ ukjk;.k izlkn iq= Lo0 'kqdj izlkn ¼eks0&9454540908½] lgk0 ft0'kk0vf/k0]QkStnkjhA

9- Jh ujns'oj feJ iq= Jh lfPpnkuUn feJ ¼eks0&9670360037½] lgk0 ft0'kk0vf/k0]QkStnkjhA

10- Jh lanhi dqekj xqIrk iq= Jh vo/k fcgkjh izlkn ¼eks0&9936607367½] lgk0 ft0'kk0vf/k0]QkStnkjhA

11- Jh vt; dqekj jk; iq= Jh LokehukFk jk; ¼eks0&9452099958½] lgk0 ft0'kk0vf/k0]QkStnkjhA

12- Jh fot; 'kadj ik.Ms; iq= Jh cky d`".k ik.Ms; ¼eks0&9450532255½] lgk0 ft0'kk0vf/k0]QkStnkjhA

13- Jh fofiu dqekj feJ iq= Lok0 ckys'oj feJ ¼eks0&9450776561½] lgk0 ft0'kk0vf/k0]QkStnkjhA

14- Jh fouksn dqekj Hkkj}kt iq= Lo0 euksxh ¼eks0&9415829955½] lgk0 ft0'kk0vf/k0]QkStnkjhA

15- Jh eukst ik.Ms; iq= Jh jke foykl ik.Ms; ¼eks0&9415694789½] lgk0 ft0'kk0vf/k0]flfoyA

16- Jh daqt fcgkjh xqIrk iq= Lo0 jktsUnz izlkn xqIrk¼ eks0&9452866203½] lgk0 ft0'kk0vf/k0]flfoyA

17- Jh nhi ukjk;.k Bkdqj iq= Lo0 txUukFk Bkdqj ¼eks0&9415361851½] lgk0 ft0'kk0vf/k0]flfoyA

18- Jh c`t ukjk;.k jk; iq= Jh Bkdqj jk; ¼eks0&9415657598½] lgk0 ft0'kk0vf/k0] jktLoA

19- Jh eqjyh ;kno iq= Lo0 gfjuUnu ;kno ¼eks0&9415249940½] lgk0 ft0'kk0vf/k0]jktLoA

d`i;k mijksDrkuqlkj rRdky dk;Zokgh djus dk d"V djsaA

21-08-2018

¼czts'k ikBd½

ea=h

fo/kk;h ,oa U;k; vfrfjDr ÅtkZ L=ksr

jktuSfrd isa'ku foHkkx mRrj izns'k 'kkluA

In pursuance of the said direction by the Hon'ble Minister, the Under Secretary, vide his letter dated 21.8.2018, wrote a letter to the District Magistrate, Ballia directing him to send a proposal for appointment of 19 persons as were recommended by the Minister for being appointed on 14 days basis. The said letter was in sum and substance the same as the letter dated 23.8.2018. Copy of the said letter is being extracted here-in-below:

la[;k&,e&[email protected]&U;k;&3&18

izs"kd]

vkse izdk'k

vuq lfpo]

mRrj izns'k 'kkluA

lsok esa]

ftykf/kdkjh]

cfy;kA

U;k; vuqHkkx&3¼fu;qfDr;kW½ y[kuÅ% fnukad 31 vxLr] 2018

fo"k;%& tuin cfy;k 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 cfy;k esa 'kkldh; vf/koDrkvksa ds fofHkUUk 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- Jh latho dqekj flag iq= Jh dsnkjukFk flag ¼eks0&9452350752½] ft0'kk0vf/k0] QkStnkjhA

2- Jh fou; dqekj flag] iq= Jh vkuUns'oj izrki flag ¼eks0&9450780590½] ft0'kk0vf/k0] flfoyA

3- Jh lEiw.kkZuUn nwcs] iq= Jh gfj'kadj nwc s¼eks0&9453776085½] ft0'kk0vf/k0] jktLoA

4- Jh lq/khj dqekj feJk] iq= Jh 'kksdgj.k feJ ¼eks0&9450780029½]lgk0 ft0'kk0vf/k0] QkStnkjhA

5- Jh vfuy ik.Ms;] iq= Jh dsnkj ukFk ik.Ms; ¼eks0&8115779009½] lgk0 ft0'kk0vf/k0]QkStnkjhA