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CASE NO.:

Appeal (civil) 963-64 of 2000

PETITIONER:

State of U.P. and Anr.

RESPONDENT:

Johri Mal

DATE OF JUDGMENT: 21/04/2004

BENCH:

CJI, BRIJESH KUMAR & S.B. SINHA.

JUDGMENT:

J U D G M E N T

W I T H

CIVIL APPEAL NOS. 967, 968, 970,

976-77, 975, 972, 973, 969, 974,

971, 965, 966 OF 2000 & CIVIL

APPEAL NO. 6549 OF 1999

S.B. SINHA, J :

INTRODUCTION:

A short but interesting question as regard

interpretation of Section 24 of the Code of Criminal

Procedure and the relevant provisions of Legal

Remembrancer's Manual relating to appointment and renewal of

term of the District Government Counsel is in question in

this batch of appeals which arise out of various judgments

and orders passed by the Allahabad High Court in C.M.W.P.

Nos.34064, 19513, 34074, 26613, 40945, 41178, 5665, 41180,

5667 of 1998, 9809 of 1992, 9203 of 1998, 3100, 3102 of 1999

and 6754 of 1998.

FACTUAL BACKDROP:

The State of Uttar Pradesh appoints District Government

Counsel(DGC) for civil, criminal and revenue courts in terms

of the Legal Remembrancer Manual.

Appointment of Public Prosecutor is governed by the

Code of Criminal Procedure, 1973. The State of Uttar

Pradesh, however, amended Section 24 of the Code of Criminal

Procedure in terms whereof the requirements to consult the

High Court for appointment of Public Prosecutors for the

High Court as contained in sub-section (1) of Section 24 as

also sub-sections (4),(5) and (6)thereof were deleted.

Renewal of terms of the District Government Counsel, are,

however, governed by Legal Remembrancer Manual.

The first respondent herein was appointed as District

Government Counsel (DGC) (Criminal) at Meerut on or about

7.01.1983. The said post is deemed to be that of Public

Prosecutor within the meaning of Section 24 of the Code of

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Criminal Procedure. His term was renewed by an order dated

12.03.1996. He was again appointed in the same capacity by

an order dated 17.09.1997 for a period of one year. Before

expiry of the said period, the respondent applied for

renewal of his tenure. Allegedly, the District Judge and

the District Magistrate did not recommend therefor. The

State Government decided not to renew the term of the

respondent as DGC (Criminal) and by an order dated 18.9.1998

he was relieved from the charge of the said post. By a

notification dated 17.09.1998, the vacancy was advertised

whereafter the respondent filed a writ petition before the

Allahabad High Court inter alia praying for quashing the

said order dated 18.09.1998. In the said writ petition, the

contention of the respondent was that as the District

Magistrate as also the District Judge had recommended for

renewal of his tenure as DGC (Criminal) having found his

conduct and work satisfactory, the renewal ought to have

been granted as a matter of course.

Despite opportunities granted in that behalf, the

appellants, however, did not file any return.

By reason of judgment dated 11.12.1998, a Division

Bench of the Allhabad High Court allowed the said writ

application holding:

"In the present case the District Judge

has recommended in favour of the

petitioner and no good or cogent reason

has been assigned for rejecting the

recommendation of the District Judge.

Hence we direct the petitioner's term as

DGC (Criminal) to be renewed forthwith

by the State Government."

The learned Judges further opined:

"The Supreme Court has observed in

Special Reference No. 1 of 1998 that the

Chief Justice of India means not the

Chief Justice of India alone but in

consultation with his four senior most

colleagues. No doubt this judgment was

given in the context of appointments of

Judges in the Supreme Court and High

Courts, but in our opinion the spirit of

the judgment is applicable to the

present case also since the intention

was to keep the administration of

justice away from political

considerations. Hence in our opinion

the District Judge should not make the

recommendation alone but in consultation

with the two senior most Judicial

Officers in the District Court and also

the CJM in the case of recommendations

for appointments in the Criminal side,

and the senior most Civil Judge for

appointments on the Civil side, and also

the District Magistrate. In other words

the recommendation shall be by a

collegium headed by the District Judge

and consisting of the above mentioned

five members (consisting of four

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judicial officers and the District

Magistrate). If two members disapprove

the name no recommendation will be made.

No name will be recommended if the

District Judge disapproves. This, in

our opinion, will be in accordance with

the norms laid down in the L.R. Manual.

Such a recommendation will ordinarily be

treated as binding on the Government

unless for some strong, cogent reasons

to be recorded in writing if the

Government disagrees. We again make it

clear that the recommendation must be

made purely on merit and competence

ignoring caste, creed, religion or

political affiliation."

Contending that the said judgment contains an error of

record as the case of the first respondent had not been

recommended by the District Judge or the District Magistrate

concerned, an application for recalling of the judgment was

filed by the appellant herein but the same was disposed of

directing that the question regarding renewal of the

respondent's term as DGC (Criminal) shall be considered

afresh by the collegium headed by the District Judge

constituted in the said judgment and the State Government

shall act on the recommendations thereof.

SUBMISSIONS:

Mr. Ashok Kumar Srivastava, learned counsel appearing

on behalf of the appellant would urge that the High Court

proceeded on a wrong premise that the recommendations for

renewal of terms of D.G.C. (Crl.) had been made by the

District Magistrate in favour of the first respondent. Our

attention in this behalf has been drawn to the opinion of

the District Judge dated 11th September, 1998 as also the

letter of the District Magistrate, Meerut addressed to the

Principal Secretary, Justice and Legal Remembrancer,

Government of Uttar Pradesh, Lucknow dated 12.9.1998.

The learned counsel would submit that as the

appointment of public prosecutor is governed by the

provisions of the Code of Criminal Procedure and renewal

thereof by the Uttar Pradesh Legal Remembrancer, the High

Court committed a manifest error in directing constitution

of a collegium headed by a member of Judiciary.

Mr. Srivastava would argue that having regard to the

fact that professional engagement of a lawyer cannot be

equated with appointment on a civil post as there exists a

relationship of client and the lawyer between the State and

the public prosecutor, the High Court was not correct in

issuing the impugned directions. Reliance in this behalf

has been placed on Harpal Singh Chauhan and Others Vs. State

of U.P.[(1993) 3 SCC 552], State of U.P. and Others Vs. U.P.

State Law Officers Association and Others [(1994) 2 SCC 204]

and State of U.P. Vs. Ramesh Chandra Sharma and

Others[(1995) 6 SCC 527].

Mr. Ranjit Kumar, learned senior counsel appearing on

behalf of the respondent, on the other hand, would submit

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that the High Court felt the need to constitute a collegium

keeping in view of the fact that the action on the part of

the State in appointment and/ or renewal of the DGCs was

found to be arbitrary.

The learned counsel would submit that the public

prosecutors look after the prosecution works and, thus, the

nature of office would be a public in nature having regard

to the fact that they discharge public functions.

Statutory Provisions:

Sub-Sections (2) to (6) of Section 24 of Code of

Criminal Procedure read thus:

"(2) The Central Government may appoint

one or more Public Prosecutors, for the

purpose of conducting any case or class

of cases in any district, or local area.

(3) For every district, the State Govt.

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 be

appointed also to be a Public Prosecutor

or an Additional 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 be appointed

as Public Prosecutor or Additional

public Prosecutors 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).

(6) Notwithstanding anything contained

in sub-section (5), where in a State

there exists a regular Cadre of

Prosecuting Officers, the State

Government shall appoint a Public

Prosecutor or an Additional Public

Prosecutor only from among the persons

constituting such Cadre:

Provided that where, in the opinion of

the State Government, no suitable person

is available in such Cadre for such

appointment that Government may appoint

a person as Public Prosecutor or

Additional Public Prosecutor, as the

case may be, from the panel of names

prepared by the District Magistrate

under sub-section (4)."

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However, the State of U.P. by Act No. 18 of 1991 with

effect from 16.2.1991 amended Sub-Section (1) of Section 24

of the Code of Criminal Procedure in the following terms:

"in sub-section (1), the words "after

consultation with the High Courts"

shall be omitted;"

By reason of the said Act, Sub-Sections (4), (5) and

(6) of Section 24 have also been omitted.

Para 7.01 of Legal Remembrancer's Manual defines the

District Government Counsel to mean legal practitioners

appointed by the State Government to conduct in any court

such Civil, Criminal or revenue cases, as may be assigned to

them either generally, or specially by the Government. The

legal practitioner appointed to conduct civil, criminal or

revenue cases shall be known as District Government Counsel

(Civil), (Criminal) or (Revenue), as the case may be.

Para 7.02 of the Manual lays down the power of the

Government to appoint Government Counsel for each district

in the State. Para 7.03 provides that whenever a post of

any Government Counsel is likely to fall vacant within the

next three months or when a new post is created, the

District Magistrate shall notify the vacancies to the

members of the Bar, the qualification wherefor would be

practice of 10 years in case of District Government Counsel,

7 years in case of Assistant District Government Counsel and

5 years in case of Sub-District Government Counsel. Clause

(3) of Para 7.03 reads thus:

"(3) The names so received shall be

considered by the District Officer in

consultation with the District Judge.

The District Officer shall give due

weight to the claim of the existing

incumbents [Additional/Assistant

District Government Counsel], if any,

and shall submit confidentially in order

of preference the names of the legal

practitioners for each post to the Legal

Rememberancer giving his own opinion

particularly about his character,

professional conduct and integrity and

the opinion of the District Judge on the

suitability and merits, of each

candidate. While forwarding his

recommendations to the Legal

Rememberancer the District Officer shall

also send to him the bio data submitted

by other incumbents with such comments

as he and the District Judge may like to

make. In making the recommendations,

the proficiency of the candidate in

civil or criminal or revenue law, as the

case may be, as well as in Hindi shall

particularly be taken into

consideration:

Provided that it will also be open to

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the District Officer to recommend the

name of any person, who may be

considered fit, even though he may not

have formally supplied his bio data for

being considered for appointment. The

willingness of such a person to accept

the appointment if made shall, however,

be obtained before his name is

recommended."

Para 7.04 of the said Manual provides that on receipt

of the recommendations of the District Officer, the Legal

Remembrancer may make further enquiry and submit the

recommendations as also for orders of the State Government.

The decision of the State Government would be final. Para

7.05 prohibits canvassing by or on the part of a candidate

which would entail disqualification.

Paras 7.06, 7.07 and 7.08 read thus:

"7.06. Appointment and renewal-(1) The

legal practioner 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

period, the District Officer after

consulting the District Judge shall

submit a report on his work and conduct

to the Legal Remembrancer together with

the statement of work done in Form no.9.

Should his work or conduct be found to

be unsatisfactory the matter shall be

reported to the Government for orders.

If the report in respect of his work and

conduct is satisfactory, he may be

furnished with a deed of engagement in

Form no.1 for a term not exceeding three

years. On his first engagement a copy

of Form no.2 shall be supplied to him

and he shall complete and return it to

the Legal Remembrancer for record.

(3) The appointment of any legal

practitioner as a District Government

Counsel is only professional engagement

terminable at will on either side and is

not appointment to a post under the

Government. Accordingly the Government

reserves the power to terminate the

appointment of any District Government

Counsel at any time without assigning

any cause.

7.07. Political Activity - The District

Government Counsel shall not participate

in political activities so long they

work as such; otherwise they shall incur

a disqualification to hold the post.

Note: The term political activity

includes membership of any political

party or local body as also press

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reporting work.

7.08. Renewal of term: (1) At least

three months before the expiry of the

term of a District Government Counsel,

the District Officer shall after

consulting the District Judge and

considering his past record of work,

conduct and age, report to the Legal

Remembrancer, together with the

statement of work done by him in Form

No. 9 whether in his opinion the term of

appointment of such counsel should be

renewed or not. A copy of the opinion

of the District Judge should also be

sent along with the recommendations of

the District Officer.

(2) Where recommendation for the

extension of the term of a District

Government Counsel is made for a

specified period only, the reasons

therefor shall also be stated by the

District Officer.

(3) While forwarding his recommendation

for renewal of the term of a District

Government Counsel -

(i) the Distrit Judge shall give an

estimate of the quality of the

Counsel's work from the Judicial

stand point, keeping in view the

different aspects of a lawyer's

capacity as it is manifested

before him in conducting State

cases, and specially his

professional conduct;

(ii) the District Officer shall give

his report about the suitability

of the District Government

Counsel from the administrative

point of view, his public

reputation in general, his

character, integrity and

professional conduct.

(4) If the Government agrees with the

recommendations of the District Officer

for the renewal of the term of the

Government Counsel, it may pass orders

for 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

Officer to forward fresh recommendations

in the manner laid down in para 7.03.

(6) The procedure prescribed in this

para shall be followed on the expiry of

every successive period of renewed

appointment of a District Government

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Counsel."

A supplementary provision has been made in Chapter XXI

of the said Manual for appointment and renewal of the post

of public prosecutors. It inter alia contains the

guidelines and clarifies that the appointment of DGC

(Criminal), the change of designation of the public

prosecutors could not effect the basic nature of their

professional engagement. It further provides that such

professional engagement is terminated on either side without

notice and without assigning any reason. It is stated that

the appointment of public prosecutor and Addl. Prosecutor

both for the High Court and District shall be made in

accordance with Section 24 of the new Code. Para 21.04

provides for constitution of a panel of five years against

each vacancy. It mandates that the State Government shall

appoint an Additional Public Prosecutor out of the names

appeared in the panel. Paras 21.07 and 21.08 of the said

Manual read as under:

"21.07. The appointment of Public

Prosecutor or Additional Public

Prosecutor shall be made for the period

of three years, but the State Government

can terminate such appointment at any

time without notice and without

assigning any reason. The State

Government may extend the period of such

appointment from time to time and such

extension of such term shall not be

treated as new appointment.

21.08. The District Magistrate shall

after consultation with the Sessions

Judge submit a confidential report in

respect of the Public Prosecutor and

Additional Public Prosecutors giving

details about the percentage of success

of cases conducted by them and the

general reputation which they enjoy.

Where the percentage of success is low

the reasons given by the Public

Prosecutor or Additional Public

Prosecutor for the same should also be

commented on. After every three years

he shall make a special assessment of

each such Public Prosecutor or

Additional Public Prosecutor and

recommend whether the person concerned

should be granted extension for a

further term of three years or for a

shorter term only."

The provisions of the Code of Criminal Procedure which

are statutory in nature govern the field. The State of

Uttar Pradesh, however, for reasons best known to it amended

Sub-Section (1) of Section 24 of the Code of Criminal

Procedure as a result whereof, the State is not required to

consult the High Court before appointing a Public Prosecutor

for the High Court. Similarly, Sub-Sections (4), (5) and

(6) of Section 24 have also been deleted purported to be on

the ground that similar provisions exist in the Legal

Remembrancer Manual. The Legal Rememberancer Manual is

merely a compilation of executive orders and is not a 'law'

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within the meaning of Article 13 of the Constitution of

India.

JUDICIAL REVIEW:

The power of judicial review is now well-defined in a

series of decisions of this Court. It is trite that the

court will have no jurisdiction to entertain a writ

application in a matter governed by contract qua contract

(assuming such professional engagement to be one), as

therein public law element would not be involved. (See Life

Insurance Corporation Vs. Escorts Ltd. and Ors. [AIR 1986

SC 1370], F.C.I. and Ors. Vs. Jagannath Dutta and Ors., [AIR

1993 SC 1494], State of Gujarat and Ors. Vs. Meghji Pethraj

Shah Charitable Trust and Ors., [(1994) 3 SCC 552],

Assistant Excise Commissioner and Ors. Vs. Issac Peter and

Ors., (1994) 4 SCC 104], National Highway Authority of India

Vs. M/s. Ganga Enterprises & Anr. 2003 (7) SCALE 171)

In any event, the modern trend also points to

judicial restraint in administration action as has been

held in Tata Cellular Vs. Union of India [(1994) 6 SCC

651]. (See also Monarch Infrastructure (P) Ltd. Vs.

Commissioner, Ulhasnagar Municipal Corporation and Others

[(2000) 5 SCC 287] and W.B. State Electricity Board Vs.

Patel Engineering Co. Ltd. and Others [(2001) 2 SCC 451)]

and L.I.C. and Anr. vs. Consumer Education and Research

Centre and Ors., [AIR 1995 SC 1811].

The legal right of an individual may be founded upon a

contract or a statute or an instrument having the force of

law. For a public law remedy enforceable under Article 226

of the Constitution, the actions of the authority need to

fall in the realm of public law -be it a legislative act or

the State, an executive act of the State or an

instrumentality or a person or authority imbued with public

law element. The question is required to be determined in

each case having regard to the nature of and extent of

authority vested in the State. However, it may not be

possible to generalize the nature of the action which would

come either under public law remedy or private law field nor

is it desirable to give exhaustive list of such actions.

In Council of Civil Services Unions Vs. Minister for

the Civil Service [(1985) AC 374] while extending the scope

of judicial review the House of Lords decided that judicial

review should not be available if the particular decision

under challenge was not justiciable. However, in granting

relief the Court shall take into consideration the factors

like national security issue. In Constitution Reform in the

UK by Dawn Oliver, it is stated at page 210:

"In the CCSU case the House of Lords

decided that judicial review should not

available if the particular decision

under challenge was not justiciable. In

effect they respected the political

Constitution and deferred to government

in some sensitive areas. In this case

the Government was alleging that for

them to have consulted the unions before

before the decision was taken would have

provoked industrial action at GCHQ,

which would in turn have been damaging

to national security. In the view of

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the House of Lords this made an

otherwise reviewable decision not

suitable for judicial review - not

justiciable. Other decisions taken

under the royal prerogative, which the

court indicated would be non-

justiciable, included treaty making and

foreign affairs. Despite the outcome of

the CCSU that the prerogative is in

principle reviewable and that were it

not for the national security issue the

government should have consulted the

unions before imposing these changes was

a major step forward in the

judicialization of government action,

including the actual conduct of

government, and a step away from the

political Constitution."

However, we may notice that judicial review was held to

be available when justiciability of foreign relations came

to be considered in R. (Abbasi) Vs. Secretary of State for

the Foreign and Commonwealth Office and Secretary of State

for the Home Department [2002] EWCA Civ., 6 November 2002

stating:

"Although the statutory context in which

Adan was decided was highly material,

the passage from Lord Cross' speech in

Cattermole supports the view that,

albeit that caution must be exercised by

this Court when faced with an allegation

that a foreign state is in breach of its

international obligations, this Court

does not need the statutory context in

order to be free to express a view in

relation to what it conceives to be a

clear breach of its international

obligations, this Court does not need

the statutory context in order to be

free to express a view in relation to

what it conceives to be a clear breach

of international law, particularly in

the context of human rights."

In Council of Civil Services Unions Vs. Minister of

Civil Service the power of judicial review was restricted

ordinarily to illegality, irrationality and impropriety

stating:

"If the power has been exercised on a

non-consideration or non-application of

mind to relevant factors, the exercise

of power will be regarded as manifestly

erroneous. If a power (whether

legislative or administrative) is

exercised on the basis of facts which do

not exist and which are patently

erroneous, such exercise of power will

stand vitiated."

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The Scope and extent of power of the judicial review of

the High Court contained in Article 226 of the Constitution

of India would vary from case to case, the nature of the

order, the relevant statute as also the other relevant

factors including the nature of power exercised by the

public authorities, namely, whether the power is statutory,

quasi judicial or administrative. The power of judicial

review is not intended to assume a supervisory role or done

the robes of omnipresent. The power is not intended either

to review governance under the rule of law nor do the courts

step into the areas exclusively reserved by the suprema lex

to the other organs of the State. Decisions and actions

which do not have adjudicative disposition may not strictly

fall for consideration before a judicial review court. The

limited scope of judicial review succinctly put are :

(i) Courts, while exercising the power of judicial review,

do not sit in appeal over the decisions of

administrative bodies;

(ii) A petition for a judicial review would lie only on

certain well-defined grounds.

(iii) An order passed by an administrative authority

exercising discretion vested in it, cannot be

interfered in judicial review unless it is shown that

exercise of discretion itself is perverse or illegal.

(iv) A mere wrong decision without anything more is not

enough to attract the power of judicial review; the

supervisory jurisdiction conferred on a Court is

limited to seeing that Tribunal functions within the

limits of its authority and that its decisions do not

occasion miscarriage of justice.

(v) The Courts cannot be called upon to undertake the

Government duties and functions. The Court shall not

ordinarily interfere with a policy decision of the

State. Social and economic belief of a Judge should

not be invoked as a substitute for the judgment of the

legislative bodies. (See Ira Munn Vs. State of

Ellinois, 1876 (94) US (Supreme Reports) 113)

In Wade's Administrative Law, 8th edition at pages

33-35, it is stated:

"Review, Legality and discretion

The system of judicial review is

radically different from the system of

appeals. When hearing an appeal the

court is concerned with the merits of a

decision: is it correct? When

subjecting some administrative act or

order to judicial review, the court is

concerned with its legality: is it

within the limits of the powers granted?

On an appeal the question is 'right or

wrong?' On review the question is

'lawful or unlawful?'

Rights of appeal are always statutory.

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Judicial review, on the other hand, is

the exercise of the court's inherent

power to determine whether action is

lawful or not and to award suitable

relief. For this no statutory authority

is necessary: the court is simply

performing its ordinary functions in

order to enforce the law. The basis of

judicial review, therefore, is common

law. This is none the less true because

nearly all cases in administrative law

arise under some Act of Parliament.

Where the Court quashes an order made by

a minister under some Act, it typically

uses its common law power to declare

that the Act did not entitle the

minister to do what he did and that he

was in some way exceeding or abusing his

powers.

Judicial review thus is a fundamental

mechanism for keeping public authorities

within due bounds and for upholding the

rule of law. Instead of substituting

its own decision for that of some other

body, as happens when on appeal, the

court on review is concerned only with

the question whether the act or order

under attack should be allowed to stand

or not. If the Home Secretary revokes a

television licence unlawfully, the court

may simply declare that the revocation

is null and void. Should the case be

one involving breach of duty rather than

excess of power, the question will be

whether the public authority should be

ordered to make good a default. Refusal

to issue a television licence to someone

entitled to have one would be remedied

by an order of the court requiring the

issue of the licence. If administrative

action is in excess of power (ultra

vires), the court has only to quash it

or declare it unlawful (these are in

effect the same thing) and then no one

need pay any attention to it. The

minister or tribunal or other authority

has in law done nothing, and must make a

fresh decision."

It is well-settled that while exercising the power of

judicial review the Court is more concerned with the

decision making process than the merit of the decision

itself. In doing so, it is often argued by the defender of

an impugned decision that the Court is not competent to

exercise its power when there are serious disputed questions

of facts; when the decision of the Tribunal or the decision

of the fact finding body or the arbitrator is given finality

by the statute which governs a given situation or which, by

nature of the activity the decision maker's opinion on facts

is final. But while examining and scrutinizing the decision

making process it becomes inevitable to also appreciate the

facts of a given case as otherwise the decision cannot be

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tested under the grounds of illegality, irrationality or

procedural impropriety. How far the court of judicial

review can reappreciate the findings of facts depends on the

ground of judicial review. For example, if a decision is

challenged as irrational, it would be well-nigh impossible

to record a finding whether a decision is rational or

irrational without first evaluating the facts of the case

and coming to a plausible conclusion and then testing the

decision of the authority on the touch-stone of the tests

laid down by the Court with special reference to a given

case. This position is well settled in Indian

administrative law. Therefore, to a limited extent of

scrutinizing the decision making process, it is always open

to the Court to review the evaluation of facts by the

decision maker.

In Chief Constable of the North Wales Police Vs. Evans

[1982 (3) All ER 141], the law is stated in the following

terms:

"...The purpose of judicial review is

to ensure that the individual receives

fair treatment, and not to ensure that

the authority, after according fair

treatment, reaches on a matter which it

is authorized or enjoined by law to

decide for itself a conclusion which is

correct in the eyes of the court."

Prof. Bernard Schwartz in his celebrated book

(Administrative Law, III Edn. Little Brown Company 1991)

dealing with the present status of judicial review in

American context, summarized as under:

"If the scope of review is too broad,

agencies are turned into little more

than media for the transmission of

cases to the Courts. That would

destroy the values of agencies,

created to secure the benefit of

special knowledge acquired through

continuous administration in the

complicated fields. At the same time,

Court should not rubber-stamp

agencies; the scope of judicial

enquiry must not be so restricted that

it prevents full enquiry into the

action of legality. If that question

cannot be properly explored by the

Judge, the right to review becomes

meaningless...in the final analysis,

the scope of review depends on the

individual judges estimate of the

justice of the case."

Prof. Clive Lewis in his book (Judicial Remedies in

Public Law 1992 Edn. At p. 294-295)

"The Courts now recognise that the

impact on the administration is

relevant in the exercise of their

remedial jurisdiction'...Earlier cases

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took a robust line that the law has to

be observed and the decision

invalidated, what ever the

administrative inconvenience caused.

The Courts now-a-days recognise that

such an approach is not always

appropriate and may not be in the

wider public interest. The effect on

the administrative process is relevant

to the Court's remedial discretion may

prove decisive...They may also be

influenced to the extent to which the

illegality arises from the conduct of

the administrative body itself, and

their view of that conduct."

Grahame Aldous and John Alder in "Applications for

Judicial Review, Law and Practice" stated thus:

"There is a general presumption against

ousting the jurisdiction of the courts,

so that statutory provisions which

purport to exclude judicial review are

construed restrictively. There are,

however, certain areas of governmental

activity, national security being the

paradigm, which the courts regard

themselves as incompetent to

investigate, beyond an initial decision

as to whether the government's claim is

bona fide. In this kind of non-

justiciable area judicial review is not

entirely excluded, but very limited. It

has also been said that powers conferred

by the royal prerogative are inherently

unreviewable but since the speeches of

the House of Lords in Council of Civil

Service Unions Vs. Minister for the

Civil Service this is doubtful. Lords

Diplock, Scaman and Roskili appeared to

agree that there is no general

distinction between powers, based upon

whether their source is statutory or

prerogative but that judicial review can

be limited by the subject matter of a

particular power, in that case national

security. Many prerogative powers are

in fact concerned with sensitive, non-

justiciable areas, for example, foreign

affairs, but some are reviewable in

principle, including where national

security is not involved. Another non-

justiciable power is the Attorney

General's preprogative to decide whether

to institute legal proceedings on behalf

of the public interest."

In Wade's Administrative Law, 8th Edition at pages

551-552, the author states :

"Rights and Remedies: Rights depend

upon remedies. Legal history is rich in

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examples of rules of law which have been

distilled from the system of remedies,

as the remedies have been extended and

adapted from one class of case to

another. There is no better example

than habeas corpus. This remedy, since

the sixteenth century the chief

cornerstone of personal liberty, grew

out of a medieval writ which at first

played an inconspicuous part in the law

of procedure: it was used to secure the

appearance of a party, in particular

where he was in detention by some

inferior court. It was later invoked to

challenge detention by the king and by

the Council; and finally it became the

standard procedure by which the legality

of any imprisonment could be tested.

The right to personal freedom was almost

a by-product of the procedural rules.

This tendency has both good and bad

effects. It is good in that the emphasis

falls on the practical methods of

enforcing any right. Efficient remedies

are of the utmost importance, and the

remedies provided by English

administrative law are notably efficient.

But sometimes the remedy comes to be

looked upon as a thing in itself, divorced

from the legal policy to which it ought to

give expression. In the past this has led

to gaps and anomalies, and to a confusion

of doctrine to which the courts have

sometimes seemed strangely indifferent."

A writ of or in the nature of mandamus, it is trite, is

ordinarily issued where the petitioner establishes a legal

right in himself and a corresponding legal duty in the

public authorities.

The Legal Remembrancer Manual clearly states that

appointment of a public prosecutor or a district counsel

would be professional in nature. It is beyond any cavil and

rightly conceded at the Bar that the holder of an office of

the public prosecutor does not hold a civil post. By

holding a post of district counsel or the public prosecutor,

neither a status is conferred on the incumbent.

A distinction is to be borne in mind between

appointment of a Public Prosecutor or Additional Public

Prosecutor, on the one hand, and Assistant Public

Prosecutor, on the other. So far as Assistant Public

prosecutors are concerned, they are employees of the State.

They hold Civil posts. They are answerable for their

conduct to higher statutory authority. Their appointment is

governed by the service rules framed by the respective State

Government. (See Samarendra Das, Advocate Vs. The State of

West Bengal and Ors. [JT 2004 (2) SC 413]).

The appointment of Public Prosecutors, on the other

hand, are governed by the Code of Criminal Procedure and/ or

the executive instructions framed by the State governing the

terms of their appointment. Proviso appended to Article 309

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of the Constitution of India is not applicable in their

case. Their appointment is a tenure appointment. Public

Prosecutors, furthermore, retain the character of legal

practitioners for all intent and purport. They, of course,

discharge public functions and certain statutory powers are

also conferred upon them. Their duties and functions are

onerous but the same would not mean that their conditions of

appointment are governed by any statute or statutory rule.

So long as in appointing a counsel the procedures

laid down under the Code of Criminal Procedure are followed

and a reasonable or fair procedure is adopted, the Court

will normally not interfere with the decision. The nature

of the office held by a lawyer vis-`-vis the State being in

the nature of professional engagements, the courts are

normally charry to over-turn any decision unless an

exceptional case is made out. 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.

The Code of Criminal Procedure does not speak of renewal or

extension of tenure. 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. The incumbent has no legal enforceable

right as such. The action of the State in not renewing the

tenure can be subjected to judicial scrutiny inter alia on

the ground that the same is arbitrary. The courts normally

would not delve into the records with a view to ascertain as

to what impelled the State not to renew the tenure of a

public prosecutor or a district counsel. The jurisdiction

of the courts in a case of this nature would be to invoke

the doctrine of 'Wednesbury Unreasonableness' as developed

in Associated Picture House vs. Wednesbury Corporation

(1947) 2 All ER 640).

In Om Kumar and Others vs. Union of India [(2001) 2 SCC

386], it was held that where administrative action is

challenged under Article 14 as being discriminatory, equals

are treated unequally or unequals are treated equally, the

question is for the constitutional courts as primary

reviewing courts to consider the correctness of the level of

discrimination applied and whether it is excessive and

whether it has a nexus with the objective intended to be

achieved by the administrator. For judging the

arbitrariness of the order, the test of unreasonableness may

be applied. The action of the State, thus, must be judged

with extreme care and circumspection. It must be borne in

mind that the right of the public prosecutor or the district

counsel do not flow under a statute. Although,

discretionary powers are not beyond pale of judicial review,

the courts, it is trite, allow the public authorities

sufficient elbow space/play in the joints for a proper

exercise of discretion.

It may be true that the Legal Remembrancer Manual

provides for renewal but it contains executive instructions

which even do not meet the requirements of clause (3) of

Article 166 of the Constitution. Legal Remembrancer Manual

is not a law within the meaning of Article 13 of the

Constitution of India. [See Union of India vs. Naveen Jindal

& Anr. - JT 2004 (2) SC 1]

The State, however, while appointing a counsel must

take into account the following fundamental principles which

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are required to be observed that good and competent lawyers

are required to be appointed for (i) good administration of

justice; (ii) to fulfill its duty to uphold the rule of law;

(iii) its accountability to the public; and (iv) expenditure

from the tax payers' money.

Only when good and competent counsel are appointed by

the State, the public interest would be safeguarded. The

State while appointing the public prosecutors must bear in

mind that for the purpose of upholding the rule of law, good

administration of justice is imperative which in turn would

have a direct impact on sustenance of democracy. No

appointment of public prosecutors or district counsel

should, thus, be made either for pursuing a political

purpose or for giving some undue advantage to a section of

people. Retention of its counsel by the State must be

weighed on the scale of public interest. The State should

replace an efficient, honest and competent lawyer, inter

alia, when it is in a position to appoint a more competent

lawyer. In such an event, even a good performance by a

lawyer may not be of much importance.

However, malice in law can also be a ground for

judicial review.

The Code of Criminal Procedure does not provide for

renewal or extension of a term. Evidently, the Legislature

thought it fit to leave such matters at the discretion of

the State. It is no doubt true that even in the matter of

extension or renewal of the term of Public Prosecutors, the

State is required to act fairly and reasonably. The State

normally would be bound to follow the principles laid down

in the Legal Remembrancer Manual.

CORRECTNESS OF THE HIGH COURT JUDGMENT:

It appears that Shri K.S. Rakhra, District Judge,

Meerut by his letter dated 11th September, 1998 addressed

to the District Magistrate, Meerut although observed that

the work and conduct of the respondent was satisfactory and

he had not received any complaint in regard to his

integrity, but it was stated:

"I, however, agree with your view that

the work of the D.G.C. (Crl.) also

requires effective control over his team

and proper analysis of the result of the

trial and follow up action including

remedial steps to improve the efficiency

of the prosecution as a whole.

Your letter suggests that in your

monthly meetings you have found that

Shri Johri Mal does not exercise

effective control over the Additional

D.G.C. (Crl.) and Asstt. D.G.C. (Crl.)

and that he has not been following the

instructions given in your monthly

meetings with regard to serious criminal

matters.

You have also found him failing to

furnish complete relevant information in

the meetings and that he does not have

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proper coordination with the S.P.O.

office and that it is giving rise to

administrative problems.

The work of D.G.C. (Crl.) also

requires administrative skill and above

average judicial knowledge.

I have no objection if Shri Johri

Mal is replaced by some better and

experienced person having good

experience of conducting Sessions Trials

and also having sufficient

administrative skill."

Acting pursuant to or in furtherance of the

aforementioned recommendations of the District Judge, the

District Magistrate in terms of his letter dated 12.9.1998

addressed to the Principal Secretary, Justice and Legal

Remembrancer, Government of Uttar Pradesh, Lucknow stated,

thus:

"It is submitted in aforesaid matter

that Sri Johri Mal, Advocate, was

engaged on the post of District

Government Counsel [Criminal], Meerut

for the term upto 14.9.98 as per the

order No. D 1880 [1] Seven-Judicial

3[42]/90 dated 17.9.97. After the term

of Sri Johri Mal comes to an end, the

post of District Government Counsel

[Criminal] shall fall vacant w.e.f.

15.9.98. On analysis of work of Sri

Johri Mal in a year, I felt that it

shall not be proper to extend the period

of Sri Johri Mal as District Government

Counsel [Criminal] in a district like

Meerut. He has no effective control

over other ADGC for doing 'pairvi'

[taking steps]. Even necessary

particulars are not collected for doing

'pairvi'. In order to make prosecutive

more effective it was decided that three

important cases be determined regular

dates be fixed and same be got decided

at the earliest, but such action could

not be done effectively due to lack of

co-ordination with the judicial

officers. In toto his term as the

District Government Counsel cannot be

held as proper and satisfactory.

District Judge has also consented to

engage other appropriate D.G.C. at the

place of Johri Mal and letter of opinion

of the District Judge is enclosed."

We may notice that one Shri Narendra Deo Chaubey, Under

Secretary, Law Department, Government of Uttar Pradesh,

Lucknow affirmed an affidavit in support of its application

for recalling of the Order dated 11th December, 1998

wherein it was categorically stated:

"That in para 22 of the writ petition

the petitioner has made a false

statement that on the renewal

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application of the petitioner the

District Judge,Meerut and respondent No.

2 made favourable reports and the

renewal of the petitioner was

recommended."

The very premise whereupon the High Court has based its

decisions, therefore, was incorrect. The impugned judgment,

thus, cannot be sustained as it suffers from misdirection in

law.

A Public Prosecutor is not only required to show his

professional competence but is also required to discharge

certain administrative functions. The District Officer was

of the opinion that in a district like Meerut the term of

the appointment should not be extended as he has no

effective control over the other ADGs for 'taking steps'.

The approach of the District Officer cannot be said to be

wholly irrational. As noticed hereinbefore, the District

Judge, Meerut has also agreed thereto. The action on the

part of the State, therefore, cannot be said to be wholly

without jurisdiction requiring interference by the High

Court in exercise of its power of judicial review.

COLLEGIUM:

Whether the High Court was right in its direction in

the light of Special Reference No.1 of 1998 that a collegium

should be constituted?

This Court in Supreme Court Advocates-on-Record

Associations and Others vs. Union of India [(1993) 4 SCC

441] held that the word 'consultation' is capable of giving

different meaning in different context. The word

'consultation' occurring in Article 124 of the Constitution

of India was given a particular construction having regard

to the relevant significant context in which the same was

used. Having regard to the provisions of the Constitution,

the court felt that the meaning of the word 'consultation'

cannot be confined to its lexical definition.

In Special Reference No. 1 of 1998, Re: [(1998) 7 SCC

739] this Court stated:

"12. The majority view in the Second

Judges case ((1993) 4 SCC 441) is that

in the matter of appointments to the

Supreme Court and the High Courts, the

opinion of the Chief Justice of India

has primacy. The opinion of the Chief

Justice of India is "reflective of the

opinion of the judiciary, which means

that it must necessarily have the

element of plurality in its formation".

It is to be formed "after taking into

account the view of some other Judges

who are traditionally associated with

this function". The opinion of the Chief

Justice of India "so given has primacy

in the matter of all appointments". For

an appointment to be made, it has to be

"in conformity with the final opinion of

the Chief Justice of India formed in the

manner indicated". It must follow that

an opinion formed by the Chief Justice

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of India in any manner other than that

indicated has no primacy in the matter

of appointments to the Supreme Court and

the High Courts and the Government is

not obliged to act thereon."

Appointment of the District Government Counsel cannot

be equated with the appointments of the High Court and the

Supreme Court Judges. A distinction must be made between

professional engagement and a holder of high public office.

Various doctrines and the provisions of the Constitution

which impelled this Court to give meaning of 'consultation'

as 'concurrence' and wherein the Chief Justice of India will

have a primacy, cannot be held to be applicable in the

matter of consultation between the District Magistrate and

the District Judge for the purpose of preparation of a panel

of the District Government Counsel.

We would, however, like to lay stress on the fact that

the consultation with the District Judge must be an

effective one. The District Judge in turn would be well

advised to take his colleagues into confidence so that only

meritorious and competent persons who can maintain the

standard of public office can be found out.

The High Court failed to consider that the power under

Article 226 of the Constitution of India is not at par with

the constitutional jurisdiction conferred upon this Court

under Article 142 of the Constitution of India. The High

Court has no jurisdiction to direct formulation of a new

legal principle or a new procedure which would be contrary

to and inconsistent with a statutory provision like Code of

Criminal Procedure. (See State of Himachal Pradesh Vs. A

Parent of a Student of Medical College, Simla and Others

[(1985) 3 SCC 169] and Asif Hameed and Others Vs. State of

Jammu and Kashmir and Others [1989 Supp (2) SCC 364]).

In Guruvayoor Devaswom Managing Committee and Another

Vs. C.K. Rajan and Others [(2003) 7 SCC 546] this Court

held:

"50... (x) The Court would ordinarily not

step out of the known areas of judicial

review. The High Courts although may

pass an order for doing complete justice

to the parties, they do not have a power

akin to Article 142 of the Constitution

of India."

DECISIONS OF THIS COURT:

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.

In Kumari Shrilekha Vidyarthi(supra), the Court sought

to draw a distinction between the powers of public

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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."

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.

The Article by Sue Arrow Smith on Judicial Review and

Contractual Powers of authorities published in (1990) 106

Law Quarterly Review, Pages 277-292 which has been referred

to in Sreelekha Vidyarthi (supra) took into consideration

several areas of English Law relating to (a) Licensing of

market traders, (b) Dismissal of public servants, (c) Public

body's powers as landlord and (d) Judicial review of

government procurement. The learned author, inter alia,

observed that the possibility of review of the exercise of

contractual rights in the said area which have been

recognized by Canadian courts should also be adopted by the

English Courts. The learned author observes:

"In other words, they should accept that

these powers are reviewable as a matter

of principle but that review may be

negated or limited by specific policy

factors, rather than continue searching

for some "public law" element to the

decision as a justification for applying

public law doctrines to the case before

them. Support for this approach is

found in the judgments of the Court of

Appeal in Brown, Kelly and Emmett, and

also, implicitly, in the recent cases on

review of procurement; and it is a pity

that the Court of Appeal did not take

the opportunity presented recently in

Jones Vs. Swansea City Council to

endorse such an approach, since this

clearly commended itself to the Court."

The said Article is although thought provoking, we are

bound by the decisions of this Court and a distinction

between a public law element and private law element

although may be thin, has to be kept in view and taken into

consideration while entertaining a writ application.

In Mukul Dalal and Others Vs. Union of India and Others

[(1988) 3 SCC 144], this Court held that office of the

Public Prosecutor is a public one and nobody should be

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appointed as a special public prosecutor at the instance of

a complainant stating:

"10... To leave the private complainant

to pay to the Special Public Prosecutor

would indeed not be appropriate. We

would make it clear that we do not

support the conclusion of the High Court

that as a rule whenever there is request

of appointment of a Special Public

Prosecutor or an Assistant Public

Prosecutor, the same should be accepted.

The Remembrancer of Legal Affairs should

scrutinise every request, keeping a

prescribed guideline in view and decide

in which cases such request should be

accepted, keeping the facts of such case

in view. Ordinarily the special Public

Prosecutor should be paid out of the

State funds even when he appears in

support of a private complainant but

there may be some special case where the

Special Public Prosecutor's remuneration

may be collected from the private

source. In such cases the fees should

either be deposited in advance or paid

to a prescribed State agency from where

the Special Public Prosecutor could

collect the same. In view of these

conclusions and our disagreeing with the

view of the High Court, the appeals

shall stand allowed. Rule 22 of the

Maharashtra Rules, referred to above, in

our view is bad and the State Government

should properly modify the same keeping

our conclusions in view. The

Remembrancer of legal Affairs of the

Maharashtra Government will now decide

as to whether in the three cases

referred to here, the services of a

Special Public Prosecutor, a Public

Prosecutor or an Assistant Public

Prosecutor should be provided and in

case he comes to the conclusion that

such provision should be made, he should

decide as to whether the State

administration should pay for such

Public Prosecutor or the private

complainant should bear the same. There

would be no order as to costs.

In Mundrika Prasad Singh Vs. State of Bihar [(1979) 4

SCC 701] this Court held that a Government Pleader holds a

public office but he is more than an advocate for litigant.

This Court observed:

"14. It is heartening to notice that

the Bihar Government appoints these

lawyers after consultation with the

District Judge. It is in the best

interest of the State that it should

engage competent lawyers without hunting

for political partisans regardless of

capability. Public offices - and

Government Pleadership is one - shall

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not succumb to Tammany Hall or subtler

spoils system, if purity in public

office is a desideratum. After all, the

State is expected to fight and win its

cases and sheer patronage is misuse of

power. One effective method of achieving

this object is to act on the advice of

the District Judge regarding the choice

of Government Pleaders. When there were

several thousand cases in the Patna

courts and hundreds of cases before a

plurality of tribunals, it was but right

that government did not sacrifice the

speedy conduct of cases by not

appointing a number of pleaders on its

behalf, for the sake of the lucrative

practice of a single Government Pleader.

It is inconceivable how he would have

discharged his duties to the court and

to his client if this crowd of land

acquisition cases were posted in several

courts more or less at the same time.

Adjournment to suit advocates'

convenience becomes a bane when it is

used only for augmentation of counsel's

income, resisting democratisation and

distributive justice within the

profession. These principles make poor

appeal to those who count, which is a

pity."

This Court lamented:

"17. We dismiss the special leave

petition but with a sad tag, which is

the message of this martyrdom.

Professions shall not be concealed

conspiracies with 'effete, aristocratic,

protective coloration', which at the

same time enables one to make a

considerable sum of money without

sullying his hands with a "job" or

"trade". The remarks of Tabachnik, in

'Professions For the People', about

English professions of the eighteenth

century smell fresh :

One could carry on commerce by sleight

of hand while donning the vestments of

professional altruism. To boot, one

could also work without appearing to

derive income directly from it. As

Reader explains :

"The whole subject of payment . . .

seems to have caused professional men

acute embarrassment, making them take

refuge in elaborate concealment,

fiction, and artifice. The root of the

matter appears to lie in the feeling

that it was not fitting for one

gentleman to pay another for services

rendered, particularly if the money

passed directly. Hence, the device of

paying a barrister's fee to the

attorney, not to the barrister himself.

Hence, also the convention that in many

professional dealings the matter of the

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fee was never openly talked about, which

could be very convenient, since it

precluded the client or patient from

arguing about whatever sum his advisor

might eventually indicate as a fitting

honorarium." (1966 p. 37)

The established professions - the law,

medicine, and the clergy - held (or

continued to hold) estate-like positions

:

"The three 'liberal professions' of the

eighteenth century were the nucleus

about which the professional class of

the nineteenth century was to form. We

have seen that they were united by the

bond of classical education : that their

broad and ill-defined functions covered

much that later would crystallize out

into new, specialised, occupations :

that each, ultimately, derived much of

its standing with the established order

in the State." (1966, p. 23)

18. The time has come to examine the

quality of the product or service,

control the price, floor to ceiling,

enforce commitment to the people who are

the third world clients, and practice

internal distributive justice oriented

on basic social justice so that the

profession may flourish without wholly

hitching the calling to the star of

material assessment immunised by law

from the liabilities of other

occupations. We do not suggest that

lawyering in India needs a National

Commission right now as in England and

elsewhere, nor do we subscribe to the

U.S. situation on which the President

and the Chief Justice have pronounced.

We quote :

We are over-lawyered . . . . Lawyers of

great influence and prestige led the

fight against civil rights and economic

justice . . . . They have fought

innovations even in their own profession

. . . . Lawyers as a profession have

resisted both social change and economic

reform.

(President Carter, May, 1978)

We may well be on our way to a society

overrun by hordes of lawyers, hungry as

locusts, and brigades of justices in

numbers, never before contemplated.

(U.S. Chief Justice Burger)

19. Law Reform includes Lawyer Reform,

an issue which the petitioner has

unwittingly laid bare. After all, as

Prof. Connel states :

Criticism of relatively conservative

institutions in times of social

questioning is hardly a new phenomenon.

(Australian Law Journal, Vol. 51, p.

351)"

In State of U.P. vs. Ramesh Chandra Sharma and Others

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(1995) 6 SCC 527], Verma, CJ speaking for the Bench opined :

"In view of the clear provision in

clause (3) of para 7.06 that the

"appointment of any legal practitioner

as a District Government Counsel is only

professional engagement", it is

difficult to appreciate the submission

for which sustenance is sought from the

provisions contained in the same manual.

The appointment being for a fixed term

and requiring express renewal in the

manner provided in the Manual, there is

no basis to contend that it is not a

professional engagement of a legal

practitioner but appointment to post in

government service which continues till

attaining the age of superannuation. In

the earlier decisions of this Court

including Shrilekha Vidyarthi, the

appointment of District Government

Counsel under the Manual has been

understood only as a professional

engagement of a legal practitioner. This

contention is, therefore, rejected.

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 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

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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."

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.

Despite the same to a limited extent in some cases the

orders of non-renewal of the term of the District Government

Counsel were interfered with on the ground that the District

Magistrate had not performed his duty as enjoined by law.

In relation to appointment of the standing counsels for

the High Court, this Court, however, in State of U.P. and

Others etc. vs. U.P. State Law Officers Association and

Others etc. [(1994) 2 SCC 204] while distinguishing

Shrilekha Vidyarthi (supra), observed that legal profession

is essentially a service oriented profession. Noticing the

changing scenario as also growth of litigation, this Court

emphasized the obligation on the part of the Government or

the public body to engage the most competent lawyer for

conducting their affairs stating that relationship between

the lawyer and his client is one of the trust and

confidence. The client engages a lawyer for personal

reasons and would be at liberty to leave him also for the

same reasons. It was observed :

"18.The mode of appointment of lawyers

for the public bodies, therefore, has to

be in conformity with the obligation

cast on them to select the most

meritorious. An open invitation to the

lawyers to compete for the posts is by

far the best mode of such selection. But

sometimes the best may not compete or a

competent candidate may not be available

from among the competitors. In such

circumstances, the public bodies may

resort to other methods such as inviting

and appointing the best available,

although he may not have applied for the

post. Whatever the method adopted, it

must be shown that the search for the

meritorious was undertaken and the

appointments were made only on the basis

of the merit and not for any other

consideration."

NATURE OF OFFICE:

The District Government counsel appointed for

conducting civil as also criminal cases hold offices of

great importance. They are not only officers of the court

but also the representative of the State. The court reposes

a great deal of confidence in them. Their opinion in a

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matter carries great weight. They are supposed to render

independent, fearless and non-partisan views before the

court irrespective of the result of litigation which may

ensue.

The Public Prosecutors have greater responsibility.

They are required to perform statutory duties independently

having regard to various provisions contained in the Code of

Criminal Procedure and in particular Section 320 thereof.

The public prosecutors and the Government counsel play

an important role in administration of justice. Efforts are

required to be made to improve the management of prosecution

in order to increase the certainty of conviction and

punishment for most serious offenders and repeaters. The

prosecutors should not be over-burdened with too many cases

of widely varying degree of seriousness with too few

assistants and inadequate financial resources. The

prosecutors are required to play a significant role in the

administration of justice by prosecuting only those who

should be prosecuted and releasing or directing the use of

non-punitive methods of treatment of those whose cases would

best be processed.

The District Government Counsel represent the State.

They, thus, represent the interest of general public before

a court of law. The Public prosecutors while presenting the

prosecution case have a duty to see that innocent persons

may not be convicted as well as an accused guilty of

commission of crime does not go unpunished. Maintenance of

law and order in the society and, thus, to some extent

maintenance of rule of law which is the basic fibre for

upholding the rule of democracy lies in their hands. The

Government counsel, thus, must have character, competence,

sufficient experience as also standing at the Bar. The need

for employing meritorious and competent persons to keep the

standard of the high offices cannot be minimized. The

holders of the post have a public duty to perform. Public

element is, thus, involved therein.

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 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.

The appointment in such a post must not be political

one. The Manual states that a political activity by the

District Government Counsel shall be a disqualification to

hold the post.

We cannot but express our anguish over the fact that in

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certain cases recommendations are made by the District

Magistrate having regard to the political affinity of the

lawyers to the party in power. Those who do not have such

political affinity although competent are not appointed.

Legal Remembrancer's Manual clearly forbids appointment of

such a lawyer and/or if appointed, removal from his office.

The District Judge and the District Magistrate, therefore,

are duty bound to see that before any recommendation is not

made, or any political affinity. They must also bear in

mind that the Manual postulates that any lawyer who is

guilty of approaching the authorities would not be entitled

to be considered for such appointment.

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 change of the Government.

SUBMISSIONS OF BIO-DATA:

During hearing of the matter, a question arose as to

whether submission of bio data pursuant to issuance of a

notice therefor by the District Magistrate or the District

Judge would amount to soliciting briefs within the meaning

of Rule 36 of the Bar Council of India Rules or not.

The question came up for consideration before a Full

Bench of the Andhra Pradesh High Court in B. Rajeswar Reddy

and others vs. K. Narasimhachari and others [2001 (6) ALT

104]. The court noticed :

"15. It may not always be possible for

the District and Sessions Judge to have

enough time to know all the advocates

who are fit to be appointed as Public

Prosecutors. He, therefore, may be

entitled to consult his colleagues

particularly when Additional Public

Prosecutors are required to be appointed

in their Courts also.

16. Before such recommendations are made

the District and Sessions Judge and his

colleagues, appear to have called for

applications for making the things more

transparent. It is true the post of the

Public Prosecutor occupies a high

position in the scheme of criminal

justice delivery system. His honesty,

impartiality, firmness and other

qualities will have to be taken into

consideration."

Referring to the judgment of this Court in Harpal Singh

Chauhan (supra), the High Court held that filing of such

applications on the part of the advocate would not attract

the vice of Rule 36 as the advocates would not file any

application on their own.

PROVISO TO PARA 7.03(3):

We may also notice that according to Mr. Ranjit Kumar,

learned senior counsel, the proviso appended to clause (3)

of Para 7.03 is being misused.

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The proviso evidently was inserted with a noble

purpose. Such a provision was evidently made having regard

to the fact that an advocate having a deep sense of self-

respect may not file any application for his appointment as

a District Government Counsel despite calling for

applications by the District Magistrate in this behalf. The

District Magistrate in a given situation may have to

persuade very competent persons to take the offer in public

interest as also in the interest of the State. But recourse

to the said provision cannot be resorted to for general

appointments. The said proviso must be taken recourse to

only in very very exceptional cases. Even in relation

thereto, consultation with the District Judge should be held

to be imperative.

CONSULTATION:

Keeping in mind the aforementioned legal principles the

question which arises for consideration in these appeals is,

the nature and extent of consultation, a Collector is

required to make with the District Judge.

The age-old tradition on the part of the State in

appointing the District Government Counsel on the basis of

the recommendations of the District Collector in

consultation with the District Judge is based on certain

principles. Whereas the District Judge is supposed to know

the merit, competence and capability of the concerned

lawyers for discharging their duties; the District

Magistrate is supposed to know their conduct outside the

court vis-`-vis the victims of offences, public officers,

witnesses etc. The District Magistrate is also supposed to

know about the conduct of the Government counsel as also

their integrity.

We are also pained to see that the Stat of Uttar

Pradesh alone had amended sub-section (1) of Section 24 and

deleted sub-sections (3), (4) and (5) of Section 24 of the

Code of Criminal Procedure. Evidently, the said legislative

step had been taken to overcome the decision of this Court

in Kumari Shrilekha Vidyarthi (supra). We do not see any

rationale in the said action. The learned counsel appearing

for the State, when questioned, submitted that such a step

had been taken having regard to the fact that exhaustive

provisions are laid down in Legal Remembrancer Manual which

is a complete code in itself. We see no force in the said

submission as a law cannot be substituted by executive

instructions which may be subjected to administrative

vagaries. The executive instructions can be amended,

altered or withdrawn at the whims and caprice of the

executive for the party in power. Executive instructions,

it is beyond any cavil, do not carry the same status as of a

statute.

The State should bear in mind the dicta of this Court

in Mundrika Prasad Singh (supra) as regard the necessity to

consult the District Judge. While making appointments of

District Government Counsel, therefore, the State should

give primacy to the opinion of the District Judge. Such a

course of action would demonstrate fairness and

reasonableness of action and, furthermore, to a large extent

the action of the State would not be dubbed as politically

motivated or otherwise arbitrary. As noticed hereinbefore,

there also does not exist any rationale behind deletion of

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the provision relating to consultation with the High Court

in the matter of appointment of the Public prosecutors in

the High Court. The said provision being a salutary one, it

is expected that the State of U.P. either would suitably

amend the same or despite deletion shall consult the High

Court with a view to ensure fairness in action.

CONCLUSION:

For the aforementioned reasons, we are of the opinion

that the impugned judgment cannot be sustained which is set

aside accordingly. The appeal is allowed but in the facts

and circumstances of the case, there shall be no order as to

costs.