IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) Nos.37768 of 2025 & W.P.(C )

Nos.202,553,1587,1588,1832,4598,4719,4841,

5477 & 8725 of 2026

In the matter of an application under Article 226 & 227

of the Constitution of India.

………………

Chintamani Mekap &

Others

…. Petitioners

-versus-

State of Odisha & Others …. Opposite Parties

For Petitioner : M/s. Milan Kanungo, Sr. Adv. along

with Mr. S.R. Mohanty, Adv.

For Opp. Parties : M/s. P. Acharya, Advocate General

along with

Mr. C.K. Pradhan, Addl. Govt. Adv,

Mr. A. Tripathy, Addl. Govt. Adv.,

Mr. P.K. Panda, Addl. Standing

Counsel and Ms.A. Das,

Addl.Standing Counsel

PRESENT:

THE HONBLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY

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Date of Hearing:15.04.2026 and Date of Judgment: 24.06.2026

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Biraja Prasanna Satapathy, J.

1. Since the issue involved in the present batch of

Writ Petitions is identical, all the matters were heard

Page 2 of 31

analogously and disposed of by the present common

order. However, for the sake of convenience and brevity,

W.P.(C ) No.37768 of 2025 is taken as the leading case.

2. W.P.(C ) No.37768 of 2025 has been filed inter alia

with the following prayer:

In the light of the aforesaid facts and

circumstances, this Hon’ble Court may be

graciously pleased to admit the writ

application and after hearing the parties be

pleased to quash the notification no.21315

dated 24.12.2025 as under Annexure-5 and

the notification no.21321 dated 24.12.2025

as under Annexure-6 in the interest of

Justice, Equity and Fairplay;

And; be further pleased to direct the Opp.

Parties to not to interfere in the engagement

of the Petitioners in the respective posts.

And; be further pleased to pass any other

order(s)/Direction(s) as this Hon’ble Court

thinks fit and proper;

And; for this act of kindness the Petitioner

as in duty bound shall ever pray.

3. Mr. Milan Kanungo, learned Senior Counsel

appearing for the Petitioners along with Mr. S.R.

Mohanty, learned counsel contended that Petitioners on

being found eligible, were appointed as Law Officers in

the district of Ganjam vide notification dtd.08.01.2024,

so issued by the Government in the Law Department-

Page 3 of 31

Opp. Party No.1. Such order of appointment was issued

vide notification dtd.08.01.2024, in terms of the

provisions contained under the Orissa Law Officers

Rules, 1971 (in short, “Rules”).

3.1. Learned Sr. Counsel vehemently contended that as

provided under Rule-6 of the said Rules, the term of

office of a Law Officer, who is so appointed is for a

period of three years, subject to any other direction by

the State Government. Rule-6 of the Rules reads as

follows:

“6. Term of Office- The Law Officers

shall ordinarily hold office for a term of

three years, subject to any other

direction by the State Government. He

shall be eligible for re-appointment on

the expiry of such term.”

3.2. It is contended that since all the Petitioners were

appointed as Law Officer vide notification dtd.08.01.2024,

in view of the provisions contained under Rule-6 of the

Rules, they were required to continue till completion of a

period of three years, i.e. 07.01.2027. But while

continuing as such and without issuing any show-cause

and/or prior notice, all the Petitioners were terminated

Page 4 of 31

with immediate effect vide the impugned notification

dtd.24.12.2025 under Annexure-5. Not only that, vide

another notification issued on the self-same date under

Annexure-6, a fresh set of Law Officers were appointed in

the district of Ganjam.

3.3. It is vehemently contended that since the Petitioners

were all appointed as Law Officers vide notification

dt.08.01.2024 and they were required to continue for a

period of three years in terms of the provisions contained

under Rule-6 of the Rules, prior to completion of the

aforesaid period of three years, Petitioners could not have

been terminated vide notification dtd.24.12.2025 under

Annexure-5 with appointment of a fresh set of Law

Officers vide another notification issued on 24.12.2025

under Annexure-6.

3.4. It is contended that since prior to such termination

of the Petitioners, principle of natural justice was never

followed nor any notice was issued to them, such order of

termination is not legal and justified and liable for

interference of this Court.

Page 5 of 31

3.5. It is also contended that after such appointment of

the Petitioners vide notification dtd.08.01.2024 vide order

dt.31.01.2024, so issued by Opp. Party No.2 under

Annexure-1, Petitioners were posted to different Courts

functioning in the district of Ganjam. But after the new

Government assumed office in the State, pursuant to the

letter issued by the Law Department on 14.10.2025, Opp.

Party No.2 vide letter dt.25.10.2025 under Annexure-3

requested the Sub-Collector, Berhampur/ Bhanjanagar/

Chhatrapur to sponsor the names of Advocates for their

appointment as Law Officers in the district of Ganjam.

Basing on such request made by the Law Department and

submission of the list of Advocates by Opp. Party No.2,

Petitioners were terminated vide notification

dtd.24.12.2025 under Annexure-5 and a new set of

Advocates were appointed as Law Officers vide notification

dtd.24.12.2025 under Annexure-6.

3.6. Learned Sr. Counsel appearing for the Petitioners

further contended that such notification issued under

Annexures-5 & 6 in terminating the Petitioners as Law

Officers in the district of Ganjam with appointment of a

Page 6 of 31

fresh set of Law Officers under Annexure-6, is prima facie

illegal, being contrary to the decision of the Hon’ble Apex

Court reported in AIR (1991) 1 SCC 212, Kumari

Shrilekha Vidyarthi & Others Vs. State of U.P and

Others and State of U.P. and Another Vs. Johri Mal,

AIR 2004 SC 3800.

3.7. Hon’ble Apex Court in the case of Shrilekha

Vidyarthi in Paragraphs-19,20,21,24,26,27,28,34,35,38

& 44 of the judgment has held as follows.

19. Even otherwise and sans the public element

so obvious in these appointments, the

appointment and its concomitants viewed as

purely contractual matters after the appointment

is made, also attract Article 14 and exclude

arbitrariness permitting judicial review of the

impugned State action. This aspect is dealt with

hereafter.

20. Even apart from the premise that the `office'

or `post' of D.G.Cs. has a public element which

alone is sufficient to attract the power of judicial

review for testing validity of the impugned

circular on the anvil of Article 14, we are also

clearly of the view that this power is available

even without that element on the premise that

after the initial appointment. the matter is purely

contractual. Applicability of Article 14 to all

executive actions of the State being settled and

for the same reason its applicability at the

threshold to the making of a contract in exercise

of the executive power being beyond dispute, can

it be said that the State can thereafter cast off its

personality and exercise unbridled power

unfettered by the requirements of Article 14 in

Page 7 of 31

the sphere of contractual matters and claim to be

governed therein only by private law principles

applicable to private individuals whose rights

flow only from the terms of the contract without

anything more? We have no hesitation in saying

that the personality of the State, requiring

regulation of its conduct in all spheres by re-

quirements of Article 14, does not undergo such

a radical change after the making of a contract

merely because some contractual rights accrue to

the other party in addition. It is not as if the

requirements of Article 14 and contractual

obligations are alien concepts. which cannot co-

exist.

21. The Preamble of the Constitution of India

resolves to secure to all its citizens Justice,

social. economic and political; and Equality of

status and opportunity. Every State action must

be aimed at achieving this goal. Part IV of the

Constitution contains `Directives Principles of

State Policy which are fundamental in the

governance of the country and are aimed at

securing social and economic freedoms by

appropriate State action which is complementary

to individual fundamental rights guaranteed in

Part III for protection against excesses of State

action to realise the vision in the Preamble. This

being the philoso- phy of the Constitution, can it

be said that it contemplates exclusion of Article

14--non-arbitrariness which is basic to rule of

law--from State actions in contractual field when

all actions of the State are meant for public good

and expected to be fair and just? We have no

doubt that the Constitution does not envisage or

permit unfairness or unreasonableness in State

actions in any sphere of its activity contrary to

the professed ideals in the Preamble. In our

opinion, it would be alien to the Constitutional

Scheme to accept the argument of exclusion

of Article 14 in contractual matters. The scope

and permissible grounds of judicial review in

such matters and the relief which may be

available are different matters but that does not

justify the view of its total exclusion. This is more

so when the modern trend is also to examine the

unreasonableness of a term in such contracts

Page 8 of 31

where the bargaining power is unequal so that

these are not negotiated contracts but standard

form contracts between unequals.

Xxx xxx xxx

24. The State cannot be attributed the sprit

personality of Dr. Jekyll and Mr. Hyde in the

contractual field so as to impress on it all the

characteristics of the State at the threshold while

making a contract requiring it to fulfil the

obligation of Article 14 of the Constitution and

thereafter permitting it to cast off its garb of State

to adorn the new robe of a private body during the

subsistence of the con- tract enabling it to act

arbitrarily subject only to the contractual

obligations and remedies flowing from it. It is

really the nature of its personality as State which

is significant and must characterize all its actions,

in what- ever field, and not the nature of function,

contractual or otherwise, which is decisive of the

nature of scrutiny permitted for examining the

validity of its act. The requirement of Article

14 being the duty to act fairly, justly and

reasonably, there is nothing which militates

against the concept of requiring the State always

to so act, even in contractual matters. There is a

basic difference between the acts of the State

which must invariably be in public inter- est and

those of a private individual, engaged in similar

activities, being primarily for personal gain, which

may or may not promote public interest. Viewed in

this manner, in which we find no conceptual

difficulty or anachronism, we find no reason why

the requirement of Article 14 should not extend

even in the sphere of contractual matters for regu-

lating the conduct of the State activity.

xxx xxx xxx

26. A useful treatment of the subject is to be found

in (1990) 106 L.Q.R. at pages 277 to 292 in an

article `Judicial Review and Contractual Powers of

Public Authorities'. The conclusion drawn in the

article on the basis of recent English decisions is

that `public law principles designed to protect the

citizens should apply because of the public nature

Page 9 of 31

of the body, and they may have some role in

protect- ing the public interest'. The trend now is

towards judicial re,dew of contractual powers and

the other activities of the Government. Reference

is made also to the recent decision of the Court of

Appeal in Jones v. Swansea City Council, [1990] 1

W.L.R. 54, where the Court's clear inclination to

the view that contractual powers should generally

be reviewable is indicated, even though the Court

of Appeal faltered at the last step and refrained

from saying so. It is significant to note that

emphasis now is on reviewability of every State

action because it stems not from the nature of

function, but from the public nature of the

body exercising that function; and all powers

possessed by a public authority, howsoever

conferred, are possessed `solely in order that it

may use them for the public good'. The only

exception limiting the same is to be found in

specific cases where such exclusion may be

desirable for strong reasons of public policy. This,

however, does not justify exclusion of

reviewability in the contractual field involving the

State since it is no longer a mele private activity to

be excluded from public view or scrutiny.

27. Unlike a private party whose acts uninformed

by reason and influenced by personal

predilections in contractual matters may result in

adverse consequences to it alone without affecting

the public interest, any such act of the State or a

public body even in this field would adversely

affect the public interest. Every holder of a public

office by virtue of which he acts on behalf of the

State or public body is ultimately accountable to

the people in whom the sovereignty vests. As

such, all powers so vested in him are meant to be

exercised for public good and promoting the public

interest. This is equally true of all actions even in

the field of contract. Thus, every holder of a public

office is a trustee whose highest duty is to the

people of the country and, therefore, every act of

the holder of a public office, irrespective of the

label classifying that act, is in discharge of public

duty meant ultimately for public good. With the

diversification of State activity in a Wel- fare State

requiring the State to discharge its wide-ranging

Page 10 of 31

functions even through its several

instrumentalities, which requires entering into

contracts also, it would be unreal and not

pragmatic, apart from being unjustified to exclude

contractual matters from the sphere of State

actions re- quired to be non-arbitrary and justified

on the touchstone of Article 14.

28. Even assuming that it is necessary to import

the concept of presence of some public element in

a State action to attract Article 14 and permit

judicial review, we have no hesitation in saying

that the ultimate impact of all actions of the State

or a public body being undoubtedly on public

interest, the requisite public element for this

purpose is present also in contractual matters.

We, therefore, find it difficult and unrealistic to

exclude the State actions in contractual matters,

after the contract has been made, from the

purview of judicial review to test its validity on the

anvil of Article 14.

Xxx xxx xx

34. In our opinion, the wide sweep of Article

14 undoubtedly takes within its fold the

impugned circular issued by the State of U.P. in

exercise of its executive power, irrespec- tive of the

precise nature of appointment of the Government

Counsel in the districts and the other rights,

contractual or statutory, which the appointees

may have. It is for this reason that we base our

decision on the ground that inde- pendent of any

statutory right, available to the appointees, and

assuming for the purpose of this case that the

rights flow only from the contract of appointment,

the impugned circular, issued in exercise of the

executive power of the State, must satisfy Article

14 of the Constitution and if it is shown to be

arbitrary, it must be struck down. However, we

have referred to certain provisions relating to

initial appointment, termination or renewal of

tenure to indicate that the action is controlled at

least by settled guide- lines, followed by the State

of U.P., for a long time. This too is relevant for

deciding the question of arbitrariness alleged in

the present case.

Page 11 of 31

35. It is now too well-settled that every State

action, in order to survive, must not be susceptible

to the vice of arbitrariness which is the crux

of Article 14 of the Consti- tution and basic to the

rule of law, the system which gov- erns us.

Arbitrariness is the very negation of the rule of

law. Satisfaction of this basic test in every State

action is sine qua lion tO its validity and in this

respect, the State cannot claim comparison with a

private individual even in the field of contract.

This distinction between the State and a private

individual in the field of contract has to be borne

in the mind.

Xxx xxx xxx

38. After Jaisinghani case, long strides have been

taken in several well-known decisions of this

Court expand- ing the scope of judicial review in

such matters. It has been emphasized time and

again that arbitrariness is anathe- ma to State

action in every sphere and wherever the vice

percolates, this Court would not be impeded by

technicalities to trace it and strike it down. This is

the surest way to ensure the majesty of rule of

law guaranteed by the Constitution of India. It is,

therefore, obvious that irrespective of the nature of

appointment of the Government Counsel in the

districts in the State of U.P. and the security of

tenure being even minimal as claimed by the

State, the impugned circular, in order to survive,

must withstand the attack of arbitrariness and be

supported as an informed decision which is

reasonable.

Xxx xxx xxx

44. Conferment of the power together with the

discretion which goes with it to enable proper

exercise of the power is coupled with the duty to

shun arbitrariness in its exercise and to promote

the object for which the power is conferred, which

undoubtedly is public interest and not individual

or private gain, whim or caprice of any individual.

All persons entrusted with any such power have

to bear in mind its necessary concomitant which

alone justified con ferment of power under the rule

of law. This was apparently lost sight of in the

present case while issuing the impugned circular.

Page 12 of 31

3.8. It is also contended that following the decision in

the case of Shrilekha Vidyaarthi, Hon’ble Apex Court in

the case of Johri Mal in para-78 of the judgment has

held as follows:

78. The State, therefore, is not expected to

rescind the appointments with the change in the

Government. The existing panel of the District

Government Counsel may not be disturbed and a

fresh panel come into being only because a new

party has taken over charge of the Government.

3.9. Making all these submissions and relying on the

decisions in the case of Shrilekha Vidyarthi as well as

Johri Mal so cited supra, learned Sr. Counsel appearing

for the Petitioners contended that since the Petitioners

prior to completion of their term, have been terminated

and without following the principle of natural justice and

because of the change of Government in the State, not

only the order of termination is bad in the eye of law, but

also unsustainable in the eye of law. It is accordingly

contended that with staying of the operation of the

impugned notification dtd.24.12.2025 so issued under

Annexure-5, status quo ante be maintained and the

matter be adjudicated on merit.

Page 13 of 31

4. Mr. P. Acharya, learned Advocate General appearing

for the State-Opp. Parties along with Mr. C.K. Pradhan,

learned Addl. Govt. Advocate, Mr. A. Tripathy, learned

Addl. Govt. Advocate, Mr. P.K. Panda, learned Addl.

Standing Counsel and Ms. A. Dash, learned Addl.

Standing Counsel, on the other hand made his

submission contending inter alia that all the Petitioners

were appointed as Law Officers in the district of Ganjam

vide notification dtd.08.01.2024 and in the notification, it

was clearly indicated that such appointment is until

further orders. It is also contended that even though as

provided under Rule-6 of the 1971 Rules, the term of office

of a Law Officer so appointed is ordinarily for a period of

three years, but the aforesaid provision so contained

under Rule-6, was amended vide notification

dtd.05.08.2025 of the Law Department. The amended

Rule-6 of the Rules reads as follows:

“The Law Officer shall ordinarily hold

office for a term of three years. He shall be

eligible for re-appointment on the expiry of

such term. However, the State Government

may terminate any law officer before the

expiry of normal tenure of three years.”

Page 14 of 31

4.1. Placing reliance on the amended Rule-6 of the Rules,

learned Advocate General first of all contended that since

the appointment is ordinarily for a term of three years, it

cannot be held that the Petitioners are eligible to continue

till completion of the period of three years. It is also

contended that since the State Government has the power

to terminate any Law Officer before the expiry of the normal

tenure of three years as per the amended provision, the

action taken by the State in terminating the Petitioners as

Law Officers in the district of Ganjam, vide notification

dtd.24.12.2025 under Annexure-5 cannot be found fault

with. It is also contended that even as per the pre-

amended provision of Rule-6, the appointment of a Law

Officer is with the condition that the Law Officer shall

ordinarily hold Office for a term of three years, subject to

any other direction by the State Government.

4.2. It is contended that since the word “ordinarily” is used

with regard to continuance of a Law Officer, it cannot be

held that such an appointment is till completion of the

period of three years. It is accordingly contended that since

the appointment of the Petitioners as Law Officers is

Page 15 of 31

ordinarily for a term of three years, the stand taken by the

Petitioners that they are eligible to continue till completion

of the period of three years cannot be accepted.

4.3. It is accordingly contended that taking recourse to the

amended Rule-6 of the Rules, Government-Opp. Party No.1

requested Opp. Party No.2, to furnish a list of fresh

Advocates for their appointment as Law Officers in the

district of Ganjam vide letter dt.14.10.2025 under

Anenxure-4. After receipt of the list from the Office of Opp.

Party No.2, Petitioners while on the one hand were

terminated vide notification dtd.24.12.2025 under

Annexure-5, vide another notification issued on the self-

same date under Annexure-6, a fresh set of Law Officers

were appointed in the district of Ganjam. It is also

contended that in terms of the notification issued under

Anenxure-6, all the Law Officers so appointed have

assumed their office in different Courts, in the meantime.

4.4. It is also contended that since as per the amended

provisions contained under Rule-6 of the Rules, State

Government was vested with the power to terminate a Law

Page 16 of 31

Officer before the expiry of the normal tenure of three years,

there was no requirement to issue a prior show-cause or

notice to the Petitioners and it cannot be held as a pre-

condition, prior to such termination of the Petitioners. It is

also contended that since no such provision is there under

the 1971 Rules, to issue any show-cause or prior notice,

taking into account the nature of appointment issued in

favour of the Petitioners vide notification dtd.08.01.2024,

they were terminated vide notification dtd.24.12.2025

under Annexure-5.

4.5. It is also contended that as provided under Rule-34 of

the Rules, the administrative control and supervision vests

with the Collector of the District, subject to overall control

of the State Government. It is also contended that 1971

Rules being not a Rule framed under Article-309 of the

Constitution of India, it has got no statutory power and

instead the Rules are procedural in nature, which only

provides the guideline for appointment of a Law Officer and

the mode in which they will work.

Page 17 of 31

4.6. In support of the submission that 1971 Rules are not

statutory Rules, reliance was placed to a decision of this

Court in the case of Sudhansu Sekhar Misra Vs. State of

Orissa and others, OJC 1486 of 1975 , decided on

04.12.1975. This Court in para-8 & 10 of the said order

has held as follows:

8. It would also be relevant in this context to notice

that the Law Officer appointed under the rules still

remains an advocate of the Court even after

appointment. The relationship between him and the

State after appointment continues to be that of a

counsel and a client. The relationship of mast and

servant is not brought about by this appointment.

The appointee is engaged on certain terms to do

duties assigned to him. In other words his

appointment by the State, therefore, is not an

appointment to a post. This view finds support by the

decision in State v. Bholanath [A.I.R. 1972 All. 460].

In this case appointments of three Government

advocates were challenged on the ground that the

same were made in violation of Art. 16 (1) of the

Constitution inasmuch as no advertisement or notice

was issued before making the appointments inviting

applications from eligible members of the Bar. The

writ petitions were allowed by the learned single

Judge, but on appeal the contention was not

accepted. In Para 14 while dealing with the nature of

appointment of a Law Offices the Division Bench of

the Court said:

"It must be remembered that, even after appointment

as a Law Officer, the advocate so appointed continues

in the legal profession and appears as an advocate

before the High Court on behalf of the State. The

relationship between him and the State is still

essentially that of counsel and client."

In Balakrushna Sahu v. Executive Engineer, G.E.D.,

and another [1975-1 L.L.N. 66]. the question arose in

Page 18 of 31

a slightly different context. The contention of the State

was that in a dispute between the management and

the workmen before the Labour Court the Govern

ment Pleader was competent to appear for the

management as he was an officer of the Government.

The Court after noticing deci sions on the subject said

at page 68:

“………….All the judicial pronouncements noticed

above emphasize that even in spite of the fact that a

Government Pleader or a Government Advocate is

appointed by the State, so far as the duties to be

performed by him are concerned, they are the same

as required to be performed by a legal practi tioner

and in spite of the appointment the relationship

between the State and either the Government Pleader

or the Government Advocate is the same as between

a client and his counsel……….

If such an appointment is not an appoint-ment to a

post, the rule making power conferred by Art. 309 of

the Constitution which empowers the framing of the

rules in regard to “posts in connection with the affairs

of the Union or of any State”

will not be attracted. It is not possible therefore, to

relate these rules to Article 309 at all.

Xxx xxx xxx

10. In the instant case after the learned Advocate-

General had concluded his argument, an application

for production of certain documents was moved on

behalf of the Petitioner. The learned Advocate

General placed before us the entire file relating to the

framing of these rules. The application was, therefore,

not pressed and accordingly dismissed. The file

produced before us showed that the rules were not

framed by the Governor in exercise of his power

under Art. 309.

Before the framing of these rules the Bihar and Orissa

Practice and Procedure Manual was in force in the

State. It was conceded before us that this was not

statutory manual, but purely administrative

instructions. The file contained a memorandum

signed by Additional Joint Secretary to Government of

Orissa. Law Department. in which he stated that the

Page 19 of 31

question of revision of rules of the Bihar and Orissa

Practice and Procedure Manual was under

consideration of Govern ment for a long time past and

that after examining the broad schemes of the rules

on the subject in force in different States it had been

considered suitable to replace the Bihar and Orissa

Practice and Procedure Manual by the fresh rules

instead of incorporating piecemeal amendments and

that is how the draft of these fresh rules came into

being. The memorandum recommended that the draft

rules be placed before the cabinet for favour of

approval. But it appears that the ministry thereafter

left office and they were never placed before the

Cabinet. In these circum-stances they were placed

before the Governor and he approved them. There

can, therefore, be no doubt that the Governor never

invoked his powers under Art. 309 of the Constitution

in framing these rules as indeed for reasons we have

already stated the same could not have been invoked

because the subject was not covered by Art. 309. In

our view, therefore, these rules are purely

administrative and have no legal sanction.

4.7. Placing reliance on the aforesaid decision, it is

contended that since the 1971 Rules are purely

administrative in nature and have no legal sanction, stand

taken in the Writ Petition that in view of the provision

contained under Rule-6 of the Rules, Petitioners could not

have been terminated prior to completion of the period of

three years, cannot be accepted.

4.8. It is also contended that on the face of the decision

rendered by the Apex Court in the case of Shrilekha

Vidyarthi, so relied on by the learned Sr. Counsel

appearing for the Petitioners, Hon’ble Apex Court in the

Page 20 of 31

case of Johri Mal so cited (supra), in para-59,60,61,67,68

& 75 has held as follows:

59. This Court in Kumari Shrilekha Vidyarthi

and Others vs. State of U.P. and Others [(1991) 1

SCC 212] opined that the appointment made in

the post of District Government Counsel is not

contractual in nature. It was held that the

Government Law Officers including the Public

Prosecutors are holders of public offices. It was

further opined that even in a case of contract the

State cannot act arbitrarily and such arbitrary

action is liable to be set aside as violative

of Article 14 of the Constitution of India.

60. In Kumari Shrilekha Vidyarthi(supra), the

Court sought to draw a distinction between the

powers of public authorities vis-`-vis the private

authorities referring to Wade's Administrative

Law, 6th Edition, page 401 to the following effect

and stating:

"For the same reasons there should in principle

be no such thing as unreviewable

administrative discretion, which should be just

as much a contradiction in terms as unfettered

discretion. The question which has to be asked

is what is the scope of judicial review, and in a

few special cases the scope for the review of

discretionary decisions may be minimal. It

remains axiomatic that all discretion is capable

of abuse, and that legal limits to every power

are to be found somewhere."

61. We have our own reservations about the

aforementioned principles of law, but for the

purpose of this case, it is not necessary to advert

thereto.

Xxx xxx xxx

67. Another Bench of this Court in Harpal Singh

Chauhan and Others etc. vs. State of U.P. [(1993)

3 SCC 552] upon a detailed discussion of the

relevant provisions of the Legal Remembrancer

Manual as also sub-sections (4),(5) and (6) of

the Code of Criminal Procedure opined :

"16. As already mentioned above, Section 24 of

the Code does not speak about the extension or

Page 21 of 31

renewal of the term of the Public Prosecutor or

Additional Public Prosecutor. But after the expiry

of the term of the appointment of persons

concerned, it requires the same statutory exercise,

in which either new persons are appointed or

those who have been working as Public

Prosecutor or Additional Public Prosecutor, are

again appointed by the State Government, for a

fresh term. The procedure prescribed in the

Manual - to the extent it is not in conflict with the

provisions of Section 24 - shall be deemed to be

supplementing the statutory provisions. But

merely because there is a provision for extension

or renewal of the term, the same cannot be

claimed as a matter of right."

17. It is true that none of the appellants can

claim, as a matter of right, that their terms should

have been extended or that they should be

appointed against the existing vacancies, but,

certainly, they can make a grievance that either

they have not received the fair treatment by the

appointing authority or that the procedure

prescribed in the Code and in the Manual

aforesaid, have not been followed. While

exercising the power of judicial review even in

respect of appointment of members of the legal

profession as District Government Counsel, the

Court can examine whether there was any

infirmity in the "decision making process". Of

course, while doing so, the Court cannot

substitute its own judgment over the final

decision taken in respect of selection of persons

for those posts."

68. The Court emphasized that the members of

the legal profession are required to maintain high

standard of legal ethics and dignity of profession

and further they are not supposed to solicit work

or seek mandamus from courts in matters of

professional engagements.

Xxx xxx xxx

75. In the matter of engagement of a District

Government Counsel, however, a concept of public

office does not come into play. However, it is true

that in the matter of Counsel, 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. The

provision of Article 14, however, will be attracted

to a limited extent as the functionaries named in

Page 22 of 31

the Code of Criminal Procedure are public

functionaries. They also have a public duty to

perform. If the State fails to discharge its public

duty or act in defiance, deviation and departure of

the principles of law, the court may interfere. The

court may also interfere when the legal policy laid

down by the Government for the purpose of such

appointments is departed from or mandatory

provisions of law are not complied with. Judicial

review can also be resorted to, if a holder of a

public office is sought to be removed for reason

de'hors the statute.

4.9. It is contended that since decision in the case of Johri

Mall is a decision rendered by a three Judge Bench and in

the said decision, Hon’ble Apex Court came to a definite

conclusion that with regard to engagement of a District

Government Counsel, concept of public office does not

come into play and Hon’ble Apex Court also has its own

reservation with regard to the principle decided in the case

of Shrilekha Vidyarthi, on the face of the decision in the

case of Johri Mal, the decision in the case of Shrilekha

Vidyarthi cannot be made applicable to the facts of the

present case.

4.10. It is also contended that following the decision in the

case of Johri Mal so cited (supra), Hon’ble Apex Court in

the case of State of U.P and Others Vs. Rakesh Kumar

Page 23 of 31

Keshari and another, (2011) 5 SCC 341 held as follows

in para-31,32,35 & 36.

31. This Court in the said case has further ruled

that so long as in appointing a Counsel, the

procedure laid down in L.R. Manual is followed

and a reasonable or fair procedure is adopted,

the Court would normally not interfere with the

decision. What is emphasized by this Court is

that the nature of the office held by a lawyer vis-

a-vis, the State being in the nature of

professional engagement, the Courts are

normally chary to overturn any decision unless

an exceptional case is made out.

According to this Court the question as to

whether the State is satisfied with the

performance of its Counsel or not is primarily a

matter between it and the Counsel and the

extension of tenure of Public Prosecutor or the

District Counsel should not be compared with the

right of renewal under a licence or permit

granted under a statute. What is laid down as

firm proposition of law is that an incumbent has

no legally enforceable right as such and the

action of the State in not renewing the tenure

can be subjected to judicial scrutiny inter alia

only on the ground that the same was arbitrary.

It is also held that the Court normally would not

delve into the records with a view to ascertain as

to what impelled the State not to renew the

tenure of the Public Prosecutor or a District

Counsel and the Jurisdiction of the Courts in a

case of this nature would be to invoke the

doctrine of "Wednesburry unreasonableness".

32. This Court in Johri Mal case further

held that L.R. Manual contains executive

instructions and is not law within the meaning

of Article 13. After emphasizing that a Public

Prosecutor is not only required to show his

professional competence but is also required to

discharge certain administrative functions, it is

held that the respondent therein had no effective

control over A.D.G.C.s for taking steps and

Page 24 of 31

therefore action on the part of the State was not

wholly without jurisdiction requiring interference

by the High Court in exercise of its power of

judicial review while setting aside the direction

given by the High Court to constitute the five

member Collegium headed by the District Judge

to make recommendation for appointment to the

post of D.G.C. (Criminal), this Court had to take

pains to explain to all concerned that the

appointment of District Government Counsel

cannot be equated with the appointments of the

High Court and Supreme Court Judges and a

distinction must be made between professional

engagement and a holder of high public office.

Xxx xxx xxx

35. This position is again made clear in an

unreported decision of this Court dated November

11, 2010 rendered in Civil Appeal No. 3785 of

2003. In the said case the State of U.P. by its

order dated 03.06.2002 had rejected the request

of the respondent Satyavrat Singh for renewal of

the extension of his term as District Government

Counsel (Criminal). The respondent had

challenged the same in the Writ Petition. The

Allahabad High Court had quashed the order

03.06.2002 refusing renewal of the term of the

respondent as District Government Counsel

(Criminal) and had directed the State Government

to renew the term of the respondent as

Government Counsel. While allowing the appeal

filed by the State Government this Court has held

as under:-

"It is difficult to discern as to how the High Court

has upheld the unstatable proposition advanced by

the respondent for extension of his term as

Government Counsel. We wish to say no more in

this matter since the subject matter that arises for

our consideration is squarely covered by the

decision of this Court in State of U.P. and another

Vs. Johri Mal 2004 (4) SCC 714. This Court took the

view that in the matter of engagement of a District

Government Counsel, a concept of public office does

not come into play. The choice of a counsel is for

the Government and none can claim a right to be a

counsel. There is no right for appointment of a

Government Counsel.

Page 25 of 31

The High Court has committed a grave error in

renewing the appointment of the respondent as

Government Counsel.

Needless to state that the High Court in exercise

of its jurisdiction under Article 226 of the

Constitution of India cannot compel the State to

utilize the services of an advocate irrespective of

its choice. It is for the State to select its own

counsel.

The impugned order of the High Court is set aside.

The appeal is accordingly, allowed."

36. Thus it was not open to the respondents to file

Writ Petition under Article 226 of the Constitution

for compelling the appellants to utilize their

services as Advocates irrespective of choice of the

State. It was for the State to select its own

Counsel. In view of the poor performance of the

respondents in handling/conducting criminal

cases, this Court is of the opinion that the High

Court committed a grave error in giving direction

to the District Magistrate to forward better

particulars of 10 candidates whose names were

included in the two panels prepared pursuant to

advertisement dated 16.01.2004 and in setting

aside order dated 07-09-2004 of the Principal

Secretary to the Chief Minister, U.P. calling upon

the District Magistrate to send another panel/list

for appointment to the two posts of A.D.G.C.

(Criminal).

4.11. Placing reliance on the decision in the case of

Rakesh Kumar Keshari so cited (supra), it is contended

that since the State has got the power to select its own

Counsel, it is not open for the Petitioners to file a Writ

Petition under Article-226 of the Constitution of India for

compelling the State to utilize their services, irrespective of

the choice of the State. It is contended that relationship in

Page 26 of 31

between the Petitioners and the State Government is purely

that of an Advocate and client, arising out of a professional

engagement and Petitioners are not holding any statutory

or public office. It is accordingly contended that since

Petitioners were all appointed as Law Officers, in view of the

decision in the case of Johri Mal, so followed in the case of

Rakesh Kumar Keshari , it cannot be held that Petitioners

have got any vested right to continue till completion of the

term of three years. It is accordingly contended that no

illegality or irregularity can be found with the impugned

notification dtd.24.12.2025 under Annexure-5, wherein

Petitioners were terminated and so also notification issued

on 24.12.2025 under Annexure-6 in appointing a fresh set

of Advocates as Law Officers for the district of Ganjam.

4.12. It is accordingly contended that the Writ Petition with

the pleadings made sans any merit and it is liable for

dismissal at the stage of admission itself.

5. To the submission made by the learned Advocate

General, Mr. Milan Kanungo, learned Sr. Counsel

appearing for the Petitioners made further submission

Page 27 of 31

contending inter alia that since the normal tenure of a Law

Officer so appointed as like the Petitioners, is for a period of

three years, the amendment carried to Rule-6 of the Rules,

does not authorize illegal termination. As while terminating

the Petitioners as Law Officers in the district of Ganjam

vide the impugned notification dtd.24.12.2025 under

Annexure-5, no reason has been assigned and the same is

a cryptic one, such a notification is non-est in the eye of

law.

5.1. It is also contended that decision relied in the case of

Sudhansu Sekhar Misra as well as Rakesh Kumar

Keshari are on a different context and the ratio so decided

in the above-noted two judgments, cannot be made

applicable to the facts of the present case. It is also

contended that since prior to termination of the Petitioners

vide the impugned notification, provisions contained under

Article-14 of the Constitution of India has not been

followed, the impugned notification dtd.24.12.2025 so

issued under Annexures-5 & 6 are liable for interference of

this Court.

Page 28 of 31

6. Having heard learned counsel appearing for the parities

and considering the submission made, this Court finds that

all the Petitioners were appointed as Law Officers in the

district of Ganjam vide notification dtd.08.01.2024.

Pursuant to such appointment vide notification

dt.08.01.2024, all the Petitioners were attached to different

Courts vide order dtd.31.01.2024 of Opp. party No.2 under

Annexure-1. However, vide the impugned notification

dtd.24.12.2025 so issued by Opp. Party No.1 under

Annexure-5, all the Petitioners were terminated with

immediate effect. Vide another notification issued on the

same date under Annexure-6, a fresh set of Law Officers

were appointed for the district of Ganjam.

6.1. It is not disputed that such appointment of the

Petitioners as Law Officers in the district of Ganjam was

made in terms of the provisions contained under the 1971

Rules.

This Court after going through the provisions

contained under the pre-amended and amended Rule-6 of

the Rules, finds that appointment of a Law Officer is

Page 29 of 31

ordinarily made for a period of three years. In the order of

appointment issued vide notification dtd.08.01.2024, it has

been clearly indicated that such appointment is made until

further orders.

6.2. Placing reliance on the pre-amended as well as

amended provisions of Rule-6 of the Rules, this Court is of

the view that Petitioners have got no vested right of

continuance for a period of three (3) years. Since the order

of appointment issued in favour of the Petitioners vide

notification dtd.08.01.2024 is until further orders, Placing

reliance on the provisions contained under Rule-6 of the

Rules, both pre-amended and the amended, it is the view

of this Court that the Petitioners were never appointed with

the condition that they will continue for a term of three

years.

6.3. Since Petitioners’ appointment as Law Officers is

ordinarily for a terms of three years and as per the

amended provisions contained under Rule-6 of the Rules,

the State Government has got the power to terminate any

Law Officer before the expiry of the normal tenure of three

Page 30 of 31

years, this Court is of the view that no illegality or

irregularity has been committed by Opp. Party No.1 in

terminating the Petitioners vide the impugned notification

dtd.24.12.2025 under Annexure-5.

6.4. Placing reliance on the decision in the case of Johri

Mal and subsequent decision in the case of Rakesh

Kumar Keshar so cited supra, it is also the view of this

Court that decision in the case of Shrilekha Vidyarthi

cannot be made applicable to the case of the Petitioners on

the face of the decision in the case of Johri Mal and

Rakesh Kumar Keshari.

6.5. Since Petitioners were all appointed as Law Officers

by the State Government with the condition that it is until

further orders and 1971 Rule is not a statutory Rule, save

and except, a set of guideline for appointment of Law

Officer in the State, it is the view of this Court that no such

formal notice was required to be issued to the Petitioners,

prior to their termination.

6.6. It is also the view of this Court that since Petitioners

were never holding any statutory public office nor post of

Page 31 of 31

Law Officer is a civil post, no illegality or irregularity can be

found with the action of the State in terminating their

services vide the impugned notification dtd.24.12.2025

under Annexure-5 and appointment of a fresh set of Law

Officers vide notification dtd.24.12.2025 under Annexure-6.

6.7. In any view of the matter, this Court finds no illegality

or irregularity with the impugned notification

dtd.24.12.2025 so issued under Annexure-5 and the

appointment of the fresh Law Officers vide notification

dtd.24.12.2025 under Annexure-6. Accordingly, this Court

is not inclined to entertain the Writ Petition and dismiss the

same at the stage of admission itself.

Photocopy of the order be placed in the connected

cases.

(Biraja Prasanna Satapathy)

Judge

Orissa High Court, Cuttack

Dated the 24

th

June, 2026/Sangita