Pushpendra Kumar vs State Of U P And 3 Others
2019 Latest Caselaw 5077 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR/RESERVED
 
In Chamber
 

 
Case :- WRIT - C No. - 4622 of 2019 
 

 
Petitioner :- Pushpendra Kumar 
 
Respondent :- State Of U P And 3 Others 
 
Counsel for Petitioner :- Rahul Mishra 
 
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 Rahul Mishra, learned counsel for the petitioner and Sri Neeraj Tripathi, learned Additional Advocate General for the State.

The petitioner has filed the present petition challenging the order dated 22.1.2019 passed by Special Secretary, Government of U.P. whereby the appointment of the petitioner on the post of District Government Counsel (Civil) at Meerut has been cancelled.

The facts leading to the filing of the present petition in brief are as under:

The respondent-State issued an advertisement for filling the vacancies of DGC (Civil) in the District Meerut in two widely circulated Newspapers on 24.7.2018. The said advertisement was issued as per the procedure prescribed under para 7.03(1) of LR Manual. The petitioner, who is a practising advocate at Meerut, also filed an application for being considered for appointment in pursuance of the said advertisement, along with the petitioner and 17 other practising advocates also applied for appointment as DGC (Civil). The District Magistrate sought the opinion of the District Judge, Meerut who in turn vide his letter dated 25.9.2018 recommended the name of three persons out of the total 18 applicants, the name of the petitioner was placed at serial no. 1 and the name of two other advocates Sri Rahul Goel and Sri Vishal Rana was also recommended in the recommendation made by the District Judge on 25.9.2018 (Annexure-4 to the writ petition). The recommendation made by the District Judge was forwarded by the District Magistrate along with his opinion to the State Government for a decision in terms of the provisions of para 7.04 of the L.R. Manual. The State Government after considering the report of the Committee comprising of the District Judge and District Magistrate, Meerut, issued an appointment letter dated 28.11.2018 bearing no. DO 1380(1)/Saat-Nayay-3-18 (Meerut) 2014 for appointing the petitioner as DGC (Civil). On the same very day i.e. 27.11.2018 the State Government informed the District Magistrate about their decision to appoint the petitioner as DGC (Civil) for a period of one year till November, 2019 (Annexure-6 to the writ petition). The petitioner alleges that despite a clear direction from the State Government the District Magistrate did not permit the petitioner to join on the post of DGC (Civil) and for the reasons best known, without following any procedure and without even consulting the District Judge, issued an appointment letter to Smt. Bhavna Bhadauria as ADGC (Civil) for a period of 14 days on 07.12.2017 in exercise of powers under para 7.10 of the L.R. Manual and since then the appointment of Smt. Bhavna Bhadauria has been extended from time to time without following any procedure whatsoever. It is alleged that Smt. Bhavna Bhadauria is the wife of spokesperson of a political party and only for that reason she has been appointed without following any procedure prescribed. The petitioner was not allowed to join despite there being an appointment letter in his favour as such the petitioner filed a writ petition before this Court being Writ - C No. 635 of 2019 seeking a writ in the nature of mandamus commanding the respondents to ensure the joining of the petitioner. The said petition came up for hearing on 11.1.2019, on which date, this Court directed the Standing Counsel to obtain instructions and fixed the matter on 22.1.2019. On 22.1.2019, learned Additional Advocate General appeared and he was granted time to file counter affidavit and the petition was directed to be listed on 28.1.2019. On the said date i.e. 22.1.2019 the learned Additional Advocate General stated before this Court that a decision has been taken for reconsideration of appointment of the petitioner as DGC (Civil). Strangely on 22.1.2019 when the Additional Advocate General made a statement before this Court that a decision has been taken for reconsideration of the appointment of the petitioner as DGC (Civil). The Special Secretary, Government of U.P. passed an order cancelling the appointment of the petitioner by means of an order dated 22.1.2019. The relevant part of the said letter is reproduced here-in-below:

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The said order did not indicate any ground whatsoever for taking the decision by the Special Secretary. The said writ petition no. 635 of 2019 was listed on 31.1.2019, no counter affidavit was filed even on the said date, however, on account of the subsequent development i.e. the passing of the order dated 22.1.2019 the petitioner withdrew the said Writ Petition No. 635 of 2019 with liberty to file a fresh petition challenging the cancellation order also. It is thus that the petitioner has filed the present petition seeking the cancellation of the order dated 22.1.2019.

Sri Rahul Mishra, learned Counsel for the petitioner, has argued that cancelling the appointment of the petitioner dated 22.1.2019 is wholly illegal and has been passed without even hearing the petitioner, the order suffers from the vice of arbitrariness. The same is non-speaking and unreasoned order and furthermore in the impugned order, no irregularity/illegality has been pointed out pertaining to the procedure of appointment. It is further argued that the order is in violation of Article 166 of the Constitution of India which provides that every executive action shall be in the name of the Governor, even the appointment letter dated 28.11.2018 indicates that the said appointment was made after seeking approval of the Governor whereas impugned order has been passed by the Special Secretary without there being any reference to any approval by the Governor. It is also argued that cancelling the appointment of the petitioner is on account of political intervention and only to continue the appointment of Smt. Bhavna Bhadauria on political considerations. It is specifically argued prior to appointing the petitioner that the entire procedure prescribed under the L.R. Manual was duly followed, the vacancies were duly advertised in well known Newspapers', due consultation was done with the District Judge and thus there was no occasion for the State Government to have cancelled the appointment which was regularly made. The petitioner has also questioned the acts of the State Government while alleging that on 22.1.2019, on the one hand, the Additional Advocate General made statement before this Court that the appointment of the petitioner is under consideration and simultaneously on the same day, the Special Secretary proceeded to pass the order dated 22.1.2019 cancelling the appointment of the petitioner.

Sri Rahul Mishra has extensively relied upon the provisions of L.R. Manual particularly paragraphs 7.03 and 7.10 of the same and has taken us through 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. We had asked the counsel to file written synopsis in support of the arguments made at the bar which they have filed.

Learned counsel for the State, on the other hand, has defended the order dated 22.1.2019 as well as the appointment of Smt. Bhavna Bhadauria for the post of Additional District Government Counsel on a temporary basis. In the written synopsis filed by the State Government it is admitted that the State Government vide its order dated 28.11.2018 had issued an order of engagement in favour of the petitioner with a condition to the effect that if the petitioner gives his consent he may be allowed to work as DGC (Civil) at Meerut. It is stated that the petitioner never joined on the post of DGC (Civil) and it is also stated that the State Government vide its order dated 21.1.2019 cancelled the engagement of the petitioner. It is also stated that the State Government vide order dated 22.1.2019 issued by the Special Secretary (Law) has asked the Collector, Meerut to send a panel of advocates for the vacant post of DGC (Civil) in accordance with the procedure mentioned in para 7.03 of the L.R. Manual on priority basis. The Additional Advocate General appearing on behalf of State has heavily 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 the power 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 averment or argument to demonstrate as to why the appointments, which were made in accordance with law, were cancelled. Similarly, there is no averment/submission to say as to why the appointments were cancelled without assigning any reason and also no argument has been raised as to what decision making process was adopted to come to a conclusion that the appointment made in accordance with provisions of L.R. Manual were liable to be cancelled. There is no averment/submission by the State Government as to what was the manner of choosing the appointments made under para 7.10 of the L.R. Manual relating to the appointment of Smt. Bhavna Bhadauria there is no indication in the written synopsis or in the arguments made as to what steps are being taken for making fresh appointments.

In view of the extensive submissions made at the bar by Sri Rahul Mishra on behalf of the petitioner and Sri Neeraj Tripathi, Additional Advocate General, the points that emerge for consideration of this Court are

(1)Whether the petitioner has any right of seeking appointment in terms of the appointment order dated 28.11.2018 passed by the State Government appointing the petitioner as DGC (Civil) Meerut for a period of one year?

(2) Whether the list as prepared after due consultation with the District Judge and after issuing an advertisement and inviting claims can be set aside without assigning any reasons whatsoever? and

(3) Whether the action of the State Government in cancelling the appointments made after due process of law as prescribed under the L.R. Manual and cancel subsequently as well as the appointment of Smt. Bhavna Bhadauria can be termed as a mala fide and colourable exercise of power by the State Government?

This Court while hearing another Writ Petition No. 4794 of 2019 (Santosh Kumar Pandey vs. State Of U.P And 17 Others) pertaining to the appointments of DGC at District Court, Ballia considered the provisions of L.R. Manual, the judgments of the Supreme Court as cited by the parties as well as the scope of appointment made to the post of DGC made by State Government and duly considered all the judgements of the Apex Court 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) and 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 emphasized that although the L.R. Manual does not have any statutory flavour none the less it provides for guidelines and the manner of appointment which conform to the fairness doctrine and should 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 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.

In the present case, there is no reason whatsoever indicated in the order dated 22.1.2019 as to why the appointment of the petitioner was cancelled, just a few days after the appointment of the petitioner which was found to be valid and in accordance with the procedure prescribed, there is no indication in the order or from the averments made at the bar as to what procedure was followed for appointment of Smt. Bhavna Bhadauria on short-term basis and the short-terms basis continues unabated. There is nothing on record to indicate that any process of consultation was made with the District Judge before proceeding to issue appointments in terms of the powers conferred under para 7.10 of the L.R. Manual. There is nothing on record to demonstrate as to what subjective/objective satisfaction was recorded by the District Magistrate in appointing Smt. Bhavna Bhadauria on short terms basis.

The clear facts that emerge in the present case are that the State Government wanted to appoint its chosen member on the sensitive post of DGC (Civil) and having failed to achieve the objective through the process initiated and completed in terms of the L.R. Manual found indirect way of appointing its preferred candidate overlooking the selections made in accordance with law. It is trite law that the State Government cannot do indirectly what it cannot do directly.

It is also relevant to consider the specific argument of the counsel for the petitioner that earlier the appointment order dated 28.11.2018 was with the consent and approval from the Governor of the State, however, the cancellation of the said appointment on 22.1.2019 did not even refer to any approval granted for taking the decision which was taken by the Special Secretary, which on the face of it is wholly arbitrary.

Learned counsel for the respondents have also relied upon a judgement of this Court in Writ C No. 8741 of 2018 (Manoj Kumar Yadav vs. State of U.P. and another), to argue that no one has a right to be appointed as DGC and no one can claim as a matter of right of renewal.

We have considered the said judgement, the said judgement considered the question of State Government refusing to renew the appointment of the DGC (Criminal) and, in fact, the State Government, in the said case, had issued advertisement for inviting applications for the appointment to the post of DGC (Criminal) and ADGC (Criminal) at Banda, the existing ADGC and DGC (Criminal) challenged the said advertisement and claimed that they had right to continue as DGC (Criminal). In the said context, this Court held that the action of the State Government in proceeding to make the appointments was in accordance with law and there was nothing arbitrary or mala fide in the action of the State Government. The said judgement, we are afraid, has no applicability to the facts of the present case and we hold that the same has no relevance for adjudicating the controversy at hand.

In view of our findings recorded above, we thus hold that the order dated 22.1.2019 cancelling the appointment of the petitioner is wholly arbitrary, illegal and suffers from the vice of arbitrariness and can be termed as a colourable and mala fide exercise of power and is thus quashed.

The State Government is directed to immediately issue the appointment letter to the petitioner and permit the petitioner to join on the post of DGC (Civil) at Meerut within a period of one month from today.

Needless to say that after the appointment of the petitioner as DGC (Civil) there is no requirement to continue with the appointments made in terms of para 7.10 of the L.R. Manual, however, we clarify that in the event the State Government wants they may initiate fresh proceedings for the appointment by issuing fresh advertisement for appointments in terms of para 7.03 of the L.R. Manual.

We further provide that in the event the State Government feels the need for appointment of Additional District Government Counsel (Civil) at Meerut till final selections are made in accordance with procedure prescribed under Para 7.03 of the L.R. Manual they may proceed to appoint Additional District Government Counsel in terms of the powers given under para 7.10 of the L.R. Manual, out of the panel as recommended by the District Judge on 25.9.2018 till the process of fresh selection is resorted and completed by the State Government.

The writ petition is allowed in terms of the said order.

Order Date :- 28.5.2019

Puspendra