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PETITIONER:

HARPAL SINGH CHAUHAN AND ORS. ETC.

Vs.

RESPONDENT:

STATE OF U.P.

DATE OF JUDGMENT15/06/1993

BENCH:

SINGH N.P. (J)

BENCH:

SINGH N.P. (J)

KULDIP SINGH (J)

CITATION:

1993 AIR 2436 1993 SCR (3) 969

1993 SCC (3) 552 JT 1993 (4) 1

1993 SCALE (3)31

ACT:

%

Code of Criminal Procedure, 1973-Section 24 read with Paras

7.06, 7.08 of the Legal Remembrancer Manual --Renewal of

term of District Government Counsel Procedure under the

Manual-- Requirements under S. 24 of the Code.

Code of Criminal Procedure, 1973-Section 24-Public

Prosecutor or Additional Public Prosecutor-Term of-Extension

of renewal- Scope of-Duty of Sessions Judge and District

Magistrate- Panel of lawyers--Preparation-Necessity of.

Constitution of India, 1950-Article 136-Appeal-Assistant

District Government Counsel's names recommended by Sessions

Judge for extension of their tenures not recommended by

District Magistrate- Rejection of Sessions Judge's

recommendation by State-Legality of.

Civil Services-Assistant District Government Counsel's names

recommended by sessions Judge for extension of their tenures

not recommended by District Magistrate-Rejection of Sessions

Judge's recommendation by State-Legality of.

Code of Criminal Procedure, 1973-Section 24(4)-Consideration

of suitability of a person to the post of District

Government Counsel by District Magistrate-Judicial review by

Courts-Scope of.

C.A. Nos. 722 and 723 of 1993.

HEADNOTE:

On 25.2.91 the appellants except appellant No. 3 were

appointed as Assistant District Government Counsel

(Criminal) in accordance with the provisions of Section 24

of the Criminal Procedure Code and the Legal Remembrancer

Manual. The appellant No.3 was appointed on 13.12.1990. The

last date of the tenure of the appellants, except appellant

No.3, was 31.12.1991, where as the tenure of appellant No.3

was upto 13.12.1991. Before

970

the expiry of their terms, the District Judge, preparing two

lists,'A' and `B' recommended the appellants' names for

extension of their tenures. List `A' contained the names of

Lawyers (including the appellants), whose work and conduct

was approved for their extension, whereas List 'B' contained

the remaining names of the lawyers (including appellants in

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C.A. Nos. 386, 387/ 1993) who were considered as 'average

lawyers'. The District Judge requested the District

Magistrate to send his recommendation to the State

Government.

The District Magistrate did not recommend the appellants'

names as their reputation, professional work, behaviour and

conduct was not found in accordance with public interest.

On 28.12.1991 the State Government extended the terms of the

appellants till further orders. Later without assigning any

reason, the extension recommended by the District Judge was

rejected by the State Government.

The appellants filed writ petitions in the High Court

against the Government's decision. The High Court dismissed

their writ applications, against which the present appeals

were filed by special leave before this Court.

C.A. Nos. 386 & 387 OF 1993.

The appellants' names were included in the List 'B' prepared

by the District Judge. The State Government rejected the

recommendation of the District Judge, without assigning any

reason. The writ petitions preferred by them in the High

Court were dismissed. Hence these appeals by special leave.

As there was a common issue arose in these appeals, same

were heard and decided together.

The appellants contended that in view of Para 7.06(2) of the

Legal Remembrancer Manual the appointment of any legal

practitioner as a District Government Counsel did not

automatically come to an end.

The State submitted that as Section 24(4) of the Code of

Criminal Procedure vested power in the District Magistrate

to consider the suitability of the person concerned, for

appointment, according to his opinion, as such there was not

much scope of judicial review by Courts, unless a clear case

of malice on the part of the District Magistrate was made

out.

971

Allowing the Civil Appeals Nos. 722 and 723 of 1993 and

dismissing the Civil Appeal Nos. 386 and 387 of 1993, this

Court.

HELD:1.1. When sub-section (4) and sub-section (5) of

Section 24 of the Code of Criminal Procedure, speak about

preparation of a panel, out of which appointments against

the posts of Prosecutor or Additional Public Prosecutor have

to be made, then the Sessions Judge and the District

Magistrate are required to consult and discuss the names of

the persons fit to be included in the panel and to include

such names in the panel.

1.2.The expressions "panel of names of persons", do not mean

that some names are to be suggested by the Sessions Judge

and some comments are to be made, in respect of those names

by the District Magistrate, without proper consultation and

discussion over such names. The statutory mandate ought to

have been complied with by the District Magistrate and the

Sessions Judge in its true spirit.

1.3.Section 24 of the Code does not speak about the

extension or renewal of the terms 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 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

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of the term, the same cannot be claimed as a matter of

right.

1.4.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.

Chief Constable of the North Wales Police v. Evans, [1982]3

All E.R. 141, referred to.

1.5.In the facts of the present case, the procedure

prescribed by Section 24 of the Code have not been followed

by the District Magistrate. There is

972

nothing on the records of the case to show that any panel,

as required by sub-section (4) of Section 24, was prepared

by the District Magistrate in consul"on with the District &

Sessions Judge. The District Magistrate simply made some

general comment in respect of the appellants, when the

District & Sessions Judge had put them in List 'A' of his

recommendation. This shall not amount to either the

compliance of sub-section (4) of Section 24 of the Code or

Para 7.06(2) of the Manual. It appears there has been no

effective or real consultation between the Sessions Judge

and the District Magistrate for preparation of the panel, as

contemplated by sub-section (4) of Section 24 of the Code.

1.6.The members of the legal profession are required to

maintain high standard of legal ethics and dignity of

profession. They are not supposed to solicit work or seek

mandamus from courts in matters of professional engagements.

1.7.In view of the strong recommendation about the quality

of the appellant's professional work, the District

Magistrate should have Applied his mind in consultation with

the Sessions Judge, in respect of each individual case,

instead of making a general and identical comment against

all the appellants.

1.8.As the District Magistrate has not performed his

statutory duty as enjoined by law, the appeals of the

appellants have to allowed.

1.9.The District Magistrate is directed to perform his

statutory duty afresh, in accordance with the requirement of

Section 24 of the Code read with the relevant paragraphs of

Chapter VII of the Manual, which are not inconsistent with

Section 24 of the Code, so far the appellants are concerned,

if the vacancies are still there. The necessary steps shall

be taken preferably within four months from the date of this

judgment. The State Government shall thereafter perform its

part in accordance with Section 24 and different paragraphs

of the Manual which are applicable in the facts and circum-

stances of the case.

Kumari Shrilekha Vidyarthi v. State of U.P., [1991] 1 SCC

212, referred to.

2.The District & Sessions Judge, who is required to express

his opinion ton the merit and the conduct of the persons

recommended for appointment or extension of the period as

District Government Counsel, has expressed the

973

opinion that appellants (in C. As. Nos. 386-387 of 93) are

"average lawyers", and has put them in List'B'. In other

words, neither the District & Sessions Judge has recommended

the case of the appellants of these appeals for extension

nor the District Magistrate. Their case cannot be treated

at par with the appellants of the other appeals. In such a

situation, no useful purpose will be served by directing the

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District Magistrate to perform his statutory duty, as

required by sub-section (4) of Section 24 of the Code again,

even in respect of these appellants.

3.Although power has been vested in a particular authority,

in subjective terms still judicial review is permissible.

Barium Chemicals Ltd, v. Company Law Board, AIR [1967] SC

295; State of Assam v. Bharat Kala Bhandar Ltd-, AIR [1967]

SC 1766; Rohtas Industries Ltd. v. S.D. Agarwal, AIR [1969]

SC 707; The Purtabpur Company Ltd. v. Call e Commissioner of

Bihar, AIR [1970] SC 1989 and; M.A. Rasheed v. The State of

Kerala, AIR [1974] SC 2249, relied on.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 722 and 723

of 1993.

From the Judgment and Order dated 13.11.92 of the Allahabad

High Court in W.P. Nos. 688 & 1246 of 1992.

WITH

CIVIL APPEALS NOS. 386 and 387 of 1993

From the Judgment and Order dated 13.11.92 of the Allahabad

High Court in W. P. Nos. 8 19 and 888 of 1992.

Rajiv Dhawan, P.K. Dey and Rakesh Gosian, Ms. Rani

Jethmalani, (N.P.) for the Appellants in C.A. Nos. 722-

23/93.

R.P. Saxena for the Appellants in C.A. Nos. 386-87/93.

Yogeshwar Prasad and Ms. Rachna Gupta for the Respondent.

The Judgment of the Court was delivered by

974

N.P. SINGH. J The appellants in Civil Appeals Nos. 722 &

723 of 1993 had been appointed as Assistant District

Government Counsel (Criminal) to appear in different

criminal cases, on behalf of the State, in different Courts

in the District of Moradabad. They filed the connected Writ

Applications before the High Court against the decision of

the State Government, refusing to extend their term for a

farther period of three years, which were dismissed by the

High Court.

It appears that the appellants. except appellant No. 3,

Gopal Sharma. had been appointed by Government Order dated

25.2.91. as Assistant District Government Counsel (Criminal)

in the District of Moradabad, in accordance with the

provisions of Section 24 of the Criminal Procedure Code

(hereinafter referred to as "the Code") and the Legal

Remembrancer Manual (hereinafter referred to as "the

Manual") against the substantive vacancies. Appellant No.

3, however, had been appointed on 13.12.1990. The last date

of the tenure of the appellants, other than appellant No. 3,

as mentioned in the aforesaid Government Order dated 25.

2.1991 was 31.12.199 1. The tenure of appellant No. 3 was up

to 13.12.199 1. It is not in dispute that before the expiry

of the term aforesaid, the District Judge, Moradabad, by his

letter dated 27.12.1991 recommended the names of appellants

for extension of their terms. The District Judge prepared

two lists i.e. 'A' and 'B'. List 'A' contained the name of

those lawyers "whose work and conduct has been approved for

their extension as Government Counsel", whereas List `B'

contained the names of the remaining Government Counsel, who

in the opinion of the District Judge were "average lawyers".

The names of the appellants are in List'A' The District

Judge requested the District Magistrate. Moradabad. to send

his recommendation to the State Government for extension of

the term of tile Government Counsel, mentioned in List'A'.

The District Magistrate. after receipt of the recommendation

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of the District Judge aforesaid, by a communication dated

2.1.92, did not recommended the names of the appellants, for

extension of their terms, saying that on the inquiry at his

level, "reputation, professional work, behaviour and conduct

of the above mentioned Government Counsel was not found in

accordance with public interest". It may be mentioned that

on 28.12.9 1. tile State Government had extended the terms

of the appellants till further orders. Ultimately, without

assigning any reason, the extension recommended by the

District Judge was rejected by the State Government, which

decision is the subject matter of the controversy in the

present appeals.

In the State of U.P., the Manual is an authoritative

compilation of the government orders and instructions for

the conduct of legal affairs of the State Government. Para

1.00 of Chapter VII gives the details of the Law Officers of

the Government which includes the Government Counsel (Civil,

Revenue, Criminal)

975

along with many others like Judicial Secretary and

Legislative Secretary. The Chapter VII of the contains the

procedure in respect of appointment and conditions of

engagements of District Government Counsel. The District

Officer is required it) consider all the applications

received. in consultation with the District Judge and to

submit in order of preference the names of' the legal

practitioners, along with the opinion of the District Judge

on tile suitability and merit of each candidate to the State

Government giving due wightage to the claim of the existing

incumbents, if any. After the receipt of such

recommendations, the Legal Remembrancer is required is

required to submit the said recommendations with his own

opinion for the orders of the State Government.

In Para 7.06 of the Manual, the procedure regarding the

appointment and renewal has been prescribed

"7.06. Appointment and renewal (1) The legal

practitioner finally selected by the

Government may be appointed District

Government Counsel for one year from the date

of his taking over charge.

(2)At the end of the aforesaid periodic the

District Officer after consulting the District

Judge shall submit a report on his work and

conduct to the legal Rememberancer together

with the statement of work done in Form No. 9.

Should his work or conduct be found to he

unsatisfactory the matter shall be reported to

the Government for orders. If the report in

respect of his work and conduct is satisfac-

tory, he may be furnished with a deed of

engagement in Form No. 1 for a term not

exceeding three years. On his first

engagement a copy of Form No.2 shall he

supplied to him and lie shall complete and

return it to the legal Remembrancer for

record.

(3)The appointment of any legal practitioner

as a District Government Counsel is only

professional engagement terminable at will on

either side and is not appointment to a post

under the government. Accordingly the

government reserves the power to terminate the

appointment of any District Government Counsel

at any time without assigning any cause."

Para 7.08 contains the procedure for renewal after expiry of

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the original term:-

"7.08. Renewal of term-(1) At least three

months before the expiry

976

of the term of a District Government Counsel,

the District Officer shall after consulting

tile District Judge and considering, his past

record of work, conduct and age, report to the

Legal Remembrancer together with the statement

of work done by him in Form No.9 whether in

his opinion the term of appointment of such

counsel should be renewed or not. A copy of

the opinion of the District Judge should also

he sent along with the recommendations of the

District Officer.

(2)Where recommendation for the extension of

the term of a District Government Counsel is

made for a specified period only the reasons

therefore shall also he stated by the District

Officer.

(3) While forwarding, his recommendation for

renewal of the term District Government

Counsel-

(i) the District Judge shall give an

estimate of the quality of the Counsel's work

from the judicial standpoint, keeping, in view

the different aspects of a lawyers capacity

as. it is manifested before him in conducting,

State cases, and specially his professional

conduct.

(ii) the District Officer shall give his

report about the suitability of the District

Government Counsel from the administrative

point of view, his public reputation in

general his character. integrity and

professional conduct.

(4) If the Government agrees with the

recommendations of the District Officer for

the renewal of the term of the Government

Counsel, it may pass orders for re-appointing

him for a period not exceeding three years.

(5) If the government decides not to re-

appoint a Government Counsel, the Legal

Remembrancer may call upon the District Office

r

to forward fresh recommendations in the manner

laid down in para 7.03.

(6) The procedure prescribed in this para

shall be followed on the expiry of every

successive period of renewed appointment of a

977

Dist Government Counsel.

Note : The renewal beyond 60 years of age shall depend upon

continuous good work, sound integarity and physical fitness

of the Counsel.

It was pointed out on behalf of the appellants, that any

legal practitioner finally selected by the Government may be

appointed as District Government Counsel for one year from

the date of his taking over charge, but in view of Para 7.06

of the Manual at the end of the aforesaid period the

District Magistrate after consulting the District Judge has

to submit a report on his work and conduct to the Legal

Remembrancer in the form prescribed. If the report in

respect of his workand conduct is satisfactory, then such

Counsel shall be furnished with a deed of engagement in form

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No. 1 for a term not exceeding three years. Para 7.08 of

the Manual contains the procedure for renewal of the term of

the District Government Counsel after the expiry of original

term. It requires the District Officer at least three months

before the expity of the term of a District Government

Counsel to report to the Legal Rmembrancer after consulting

the District Judge and considering the past record of work

conduct and age of such District Government Counsel. If the

Government agrees with the recommendation it may pass an

Order re-appointing him for a period not exceeding three

years.

The stand of the appellants is that in view of Para

7.06(2), the appointment of any legal practitioner as a

District Governemnt Counsel, does not automatically come to

an end rather it indicates and element of continuity and

that is why Para 7.06(2) requires the District Officer at

the end of period of one year to submit a report after

consulting the District Judge concerned in respect of the

work and conduct of such District Government Counsel to the

Legal Remembrancer in a form prescribed. If the report in

respect of work and conduct is satisfactory then such

District Government Counsel shall be furnished with a deed

of engagement in a form prescribed for a term not exceeding

three years. As such after the period of one year if the

engagement for a further period upto three years is not

given, it amounts to a stigma.

On behalf of the appellants attention of this Court was

drawn to a letter addressed to the District Magistrate by

Dr. Nepal Singh, M. L.C., the District President of the

party then in power recommending the names of other

Government Counsel for renewal/extension of their term. It

was pointed out that in respect of all those persons. The

District Magistrate has recommended for extension. There is

however, no material before us to show that the District

978

Magistrate was influenced by the said letter in any manner.

A part form that the persons so resommended by the District

Magistrate were not impleded as respondents to the Writ

applications. As such we are not inclined to go into this

aspect.

The different paragraphs of the Manual aforesaid were

examined in detail in the case of Kumari Shrilekha Vidyarthi

v. State of U. P. [1991] 1 SCC 212, in connection with an

order dated February 6, 1990 issued by the State of U. P.

terminating the appointments of all Government Counlsel (

Civil Criminal and Revenue) in all the districts of the

State of U.P. with effect from February 28, 1990 and

directing the preparation of fresh panels for making

appointments in places of the existing incumbents. while

quashing such general order it was said:-

Viewed in any manner the impugned circular

dated February 6, 1990 is arbitrary. It

terminates all the appointments of Government

Counsel in the districts of the State of Uttar

Pradesh by an omnibus order even though these

appointments were all individual. No common

reason applicable to all of them justifying

their termination in one stroke on a

reasonable ground has been shown. The

submission on behalf of the State of

UttarPradesh at the hearing that many of them

were likely to be re-appointed is by itself

ample proof of the fact that there was total

non-application of mind to the individual

cases before issuing the general order

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terminating all the appointments. This was

done in spite of the clear provisions in the

L. R. manual lying down detailed procedure for

appointment, termination and renewal of tenure

and the requirement to first consider the

existiong incumbent for renewal of his tenure

and to take steps for a fresh appointment in

his place only if the existing incumbent is

notfound suitable in comparison to more

suitable persons available for appointment at

the time of renewal. In the case of existing

appointees a decision has to be first reached

about their non-suitability for renewal before

deciding to take steps for making fresh

appointments to replace them. None of these

steps were taken and no materialhas been

produced to show that any existing incumbent

was found unsuitable for the office on

objective assessment before the decision to

replace all by fresh appointees was taken. The

prescribed procedure laid down in the L.R.

Manual which has to regulate exercise of this

power was tatally igonered.

In the present case it appears to be an admitted position

that appointments of the appellants as assistant District

Government Counsel (Criminal) is governed

978

979

.LM0

by Section 24 of the Code, as well different paragraphs of

Chapter VII of the Manual. It was not disputed on behalf of

the State, that appellants shall be deemed to be Additional

Public Prosecutors within the meaning of Section 24 of the

Code, although in the order of appointment they have been

designated as Assistant District Government Counsel

(Criminal). The procedure prescribed in the Manual can be

observed and followed as supplemental to the provisions of

Section 24 of the Code. Needless to say that, if there is

any conflict, then Section 24 of the Code being statutory

in nature will override the procedure prescribed in the

Manual. The relevant part of Section 24 is as such

"24. Public Prosecutors (1) For every High

Court, the Central Government of the State

shall, after consultation with the High Court,

appoint a Public Prosecutor and may also

appoint one or more Additional Public

Prosecutors, for conducting in such Court, any

prosecution,appeal or other proceedings on

behalf of the Central Government or State

Government, as the case may be.

(2)......................

(3) For every district, the State Government

shall appoint a Public Prosecutor and may also

appoint one or more Additional Public

Prosecutors for the district:

Provided that the Public Prosecutor or

Additional Public Prosecutor appointed for one

district may he appointed also to be a Public

Prosecutor as the case may be for another

district.

(4)The District Magistrate shall, in

consultation with the Sessions Judge, prepare

a panel of names of persons, who are. in his

opinion, fit to he appointed as Public

Prosecutors or Additional Public Prosecutors

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for the district.

(5) No Person shall be appointed by the

State Government as the Public Prosecutor or

Additional Public Prosecutor for the district

unless his name appears in the panel of names

prepared by the District Magistrate under sub-

section (4)."

The Code prescribes the procedure for appointment of Public

Prosecutor and Additional Public Prosecutor, for the High

Court and the District Courts by the State Government. The

framers of the Code, were conscious of the fact, that the

Public Prosecutor and the Additional Public Prosecutor have

an important role,

980

while prosecuting on behalf of the State, accused persons,

who are alleged to have committed one or the other offence.

Because of that, provisions have been made for their

selection in the Code. It is for the Sessions Judge to

assessee the merit and professional conduct of the persons

recommended for such appointments and the District

Magistrate to express his opinion on the suitability of

persons so recommended, from the administrative point of

view. Sub-section (5) of Section 24 provides that no person

shall be appointed by the State Government as the Public

prosecutor or as an Additional Public Prosecutor "unless his

name appears in the panel of names prepared by the District

Magistrate under sub-section (4)". The aforesaid section

requires an effective and real consultation between the

Sessions Judge and the District Magistrate, about the merit

and suitability of person it) he appointed as Public

Prosecutor or as an Additional Public Prosecutor. That is

why it requires, a panel of names of persons, to be prepared

by the District Magistrate in consultation with the Sessions

Judge. The same is the position so far the Manual is

concerned. It enumerates in detail, how for purpose of

initial appointment extension or renewal, the District Judge

who is also the Session Judge, is to give his estimate of

the quality of the work of the Counsel from the judicial

Standpoint and the District Officer i.e. the District

Magistrate is to report about the suitability, of such

person, from administrative point of view.

On behalf of the State, our attention was drawn to the

expression "in his opinion" occurring in sub-section (4) of

Section 24 of the Code. It was urged that as the Code vests

power in the District Magistrate to consider the suitability

of the person concerned, for appointment, according, to his

opinion, there is not much scope of judicial review by

Courts, unless a clear case of malice on the part of the

District Magistrate is made out. In view of the series of

judgments of this Court in Barium Chemicals Ltd v. Company

Law Board, AIR 1967 SC 295; State of Assam Bhatrai Kala

Bhandar Ltd.AIR 1967 SC 1766, Rohtas Industries Ltd. v. S.D.

Agarwal, AIR 1969 SC 707, The Purtapur Company Ltd. v. Cane

Commissioner of Bihar AIR 1970 SC 1896 and M.A. Rasheed v.

The State of Kerala, AIR 1974 SC 2249, it is almost settled

that, although power has been vested in a particular

authority, in subjective term:, still judicial review is

permissible.

In the present case the District & Session Judge strongly

recommended extension for the appellants, saying that so far

their work and conduct were concerned, the same had been

approved. But the District Magistrate, simply said that on

the inquiry at his level "reputation, professional work,

behaviour and conductor the appellants as government counsel

was not found in accordance with the public interest". The

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quality of the Counsel' work has to be judged and assessed

981

by the District & Sessions Judge. The District Magistrate

is required to consider the suitability of such person, from

the administrative point of view. According to us, in view

of the strong recommendation about the quality of the

appellants' professional work, the District Magistrate

should have applied his mind in consultation with the

Sessions Judge. in respect of each individual case. instead

of making a general and identical comment against all the

appellants.

Apart from that the mandate of sub-section (4) of Section 24

is that "the District Magistrate shall, in constitution with

the Session Judge, prepare a panel of names of persons".

Sub-section (5) of Section 24 prescribes a statutory bar

that no person shall be appointed by the State Government as

the Public Prosecutor or Additional Public Prosecutor for

the district "unless his name appears in the panel of names

prepared by the District Magistrate under sub-section (4)".

When sub-section (4) and sub-section (5) of Section 24 of

the Code, speak about preparation of a panel, out of which

appointments against the posts of Prosecutor or Additional

Public Prosecutor have to he made. then the Sessions Judge

and the District Magistrate are required to consult and

discuss the names of the persons fit to be included in the

panel and to include such names in the panel. The

expressions "panel of names of persons", do not mean that

some names are to be suggested by the Sessions Judge and

some comments are to be made, in respect of those names by

the District Magistrate, without proper consultation and

discussion over such names. The statutory mandate ought to

have been complied with by the District Magistrate and the

Sessions Judge in its true spirit. In the facts of the

present case, no such panel appears to have been prepared by

the District Magistrate in terms of sub-section (4) of

Section 24. As Section 24 of the Code does not speak about

extension or renewal of the term of the person so appointed,

the same procedure, as provided under sub-section (4) of

Section 24 of the Code, has to be followed. In the present

case the District Magistrate instead of having an effective

and real consultation with the District & Sessions Judge

simply made some vague and general comments against the

appellants, which cannot be held to he the compliance of the

requirement of subsection (4) of Section 24.

In the case of Kumari Shrilankha Vidyarthi (supra), this

Court was not concerned with the question regarding the

extension/renewal of the terms of the Government Counsel.

The primary question which was examined by this Court in

that case, was as to whether it was open to the State

Government by the impugned circular dated February 6, 1990.

to terminate appointments of all the Government Counsel in

the different districts of the State, by an omnibus order,

even though those appointments were all individual. It was

held that any such exercise of power by the State Government

cannot satisfy the test of Article 14 of the Constitution

982

and as such was unreasonable and arbitrary. In that

connection reference was made to the Manual aforesaid and it

was pointed out that the said Manual has laid down detailed

procedure for appointment, termination and renewal of the

tenure of the District Government Counsel. It was pointed

out, that different paragraphs of the Manual require, first

to consider the existing incumbents for extension and

renewal of their tenure and to take steps for fresh

appointment in their place, if the existing incumbents were

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not found suitable in comparison to more suitable persons

available for appointment at the time of the renewal.

As already mentioned above. Section 24 of the Code does not

speak about the extension or renewal of the term (if 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 extant - it is not in conflict with the provisions of

Section 24. shall he deemed to be supplementing the

statutory provisions. But merely because there is a

provision for extension or renewal of the term, the same

cannot he claimed as a matter of right.

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 Pair 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. It was said in the

case of Chief Constable of the North Wales Plice v.

Evans.(1982) 3 All E.R. 141;-

"The purpose of judicial review is to ensure that the

individual receives fair treatment, and not to

ensure that the authority, after according

Pair treatment. reaches on a matter which it

is authorised or enjoined by law to decide for

itself a conclusion which is correct in the

eyes of the court."

In the facts of the present case, the procedure prescribed

by Section 24 of the Code have not been followed by the

District Magistrate.There is nothing on the

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records of the case to show that any panel as required by

sub-section (4) of Section 24 was prepared by the District

Magistrate in consultation with the District & Sessions

Judge. The District Magistrate simply made some general

comment in respect of the appellants. When the District &

Sessions Judge had put them in List 'A' of his

recommendation. According, to us, this shall not amount to

either the compliance of 'sub-section (4) of Section 24 of

the Code or Para 7.06(2) of the Manual. It appears there

has been no effective or real consultation between the

Sessions Judge and the District Magistrate for preparation

of the panel, as contemplated. by sub-section (4) of Section

24 of the Code.

The members of the legal profession are required to maintain

high standard of legal ethics and dignity of profession.

They are not supposed to solicit work or seek mandamus from

courts in matters of professional engagements. We have been

persuaded to interfere in these matters to a limited extent,

as we are satisfied that there is patent infraction of the

statutory provisions of the Code. As we are of the view

that the District Magistrate has not performed his statutory

duty as enjoined by law, the appeals of the appellants have

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to be allowed.

In the result, the appeals are allowed. We direct the

District Magistrate, Moradabad, to perform his statutory

duty afresh. in accordance with the requirement of Section

24 of the Code read with the relevant paragraphs of Chapter

VII of the Manual, which are not inconsistent with Section

24 of the Code. so far the appellants are concerned, if the

vacancies are still there. The necessary steps shall be

taken preferably within four months from the date of this

judgment. the State Government shall thereafter perform its

part in accordance with Section 24 and different paragraphs

of the Manual which are applicable in the facts and circum-

stances of the case. We make it clear that we are not

expressing any opinion on the merit of the claim of the

appellants to get extension or appointment against the posts

of Assistant District Government Counsel (Criminal). There

will he no order as to costs.

CIVIL APPEALS NOS. 386 & 387 OF 1993

So far the appellants of these appeals are concerned, their

names were put under List 'B' by the District & Sessions

Judge in his recommendation saying that they were "average

lawyers". Their case stands on a different footing. The

District & Sessions Judge. who is required to express his

opinion on the merit and the conduct of the persons

recommended for appointment or extension of the period

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as District Government Counsel, has expressed the opinion

that appellants are "average lawyers" and has put them in

List B. In other words, neither the District & Sessions

Judge has recommended the case of the appellants of these

appeals for extension nor the District Magistrate. Their

case cannot be treated at par with the appellants of the

other appeals. In such as situation, no useful purpose will

be served by directing the District Magistrate to perform

his statutory duty as required by sub-section (4)of Section

24 of the Code again, even the respect of these appellants.

Accordingly, these appeals are dismissed. there will be no

orders as to costs.

V.P.R, C.A. Nos. 722 and 723/93 allowed.

C.A. Nos. 386 and 387/93 dismissed.

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