State Of U.P & Ors vs Rakesh Kumar Keshari & Anr

State of U.P. & Ors. ... Petitioner(s)

Versus

Rakesh Kumar Keshari & Anr. ... Respondent(s)

J U D G M E N T

J.M. Panchal, J.

1. Leave granted.

2. This appeal by Special Leave is directed against

Judgment dated 11.07.2005 rendered by the Division

Bench of High Court of Judicature at Allahabad in Civil

Misc. Writ Petition No. 28444 of 2005 by which order

2

dated 07.09.2004 of the Principal Secretary to the Chief

Minister, Uttar Pradesh directing the District Magistrate

to submit another panel/list for appointment to the two

posts of the Assistant District Government Counsel

(Criminal) in Ghazipur District of the State of U.P. is set

aside and District Magistrate, Ghazipur is directed to

consult the District Judge and thereafter to furnish

better particulars in respect of 10 persons whose names

had been included in the two panels dated 01-05-2004

with the consultation of the District Judge, whereas the

State Government is directed not to consider revised

panel unless the panel submitted by the District

Magistrate in consultation with the District Judge is

rejected on some disclosed grounds.

3. Backgrounds facts sans unnecessary details are as

under:-

The respondents nos. 1 and 2 were appointed on contract

basis, to the vacant posts of Assistant District Government

Counsel (Criminal) ("A.D.G.C." for short), in Ghazipur District

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of State of U.P. on 22.10.2001. As the terms of the

appointment of the respondents were up to 10.10.2002, the

District Judge, Ghazipur after being satisfied with the work

and conduct of the respondents had recommended to the

District Magistrate, Ghazipur to get extended their terms by

communication dated 31.07.2002. The District Magistrate,

Ghazipur had recommended to the State Government to

extend the terms of the respondents vide communication

dated 31.07.2002. The Post of Assistant A.D.G.C. (Criminal)

on which the respondents were working were advertised by the

then District Magistrate, Ghazipur. In pursuance of the said

advertisement, the respondents also applied for the post in

question. Their applications were forwarded by the District

Judge, Ghazipur to the then District Magistrate along with his

Report. However, no action whatsoever was taken by the

appellants either for renewing the terms of the respondents on

the recommendation dated 31-07-2002 of the District

Magistrate or for appointing them on the post of Assistant

A.D.G.C. (Criminal) pursuant to the above mentioned

advertisement. Again by advertisement dated 16.01.2004 the

4

District Magistrate, Ghazipur had advertised the post of

A.D.G.C. (Criminal) under the Judgeship of Ghazipur. The

respondents had again applied for the post of A.D.G.C.

(Criminal) along with other candidates. Pursuant to the

advertisement dated 16-01-2004, applications from 29

candidates were received. From the record it is evident that

two letters dated 07-02-2004 and 01-03-2004 were addressed

by the District Magistrate to the District Judge, Ghazipur for

regular appointment of two A.D.G.C. (Criminal). In response

to those two letters, the District Judge, Ghazipur by

communication dated 07-04-2004 informed the District

Magistrate that after obtaining opinion of the other Judicial

Officers two panels of candidates, each containing 5 names

were prepared. By a letter dated 19-04-2004, the District

Magistrate had suggested to the District Judge to change/alter

the two panels but District Judge had vide communication

dated 28-04-2004, informed the District Magistrate that, it

would not be in the fitness of things to change or alter the two

panels which were prepared after taking much pains.

However, by the said communication, the District Judge also

5

mentioned that the work, conduct and legal knowledge of the

remaining candidates were satisfactory. Thereupon, the

District Magistrate, Ghazipur addressed a communication

dated 01-05-2004 to the Special Secretary, Government of

U.P., Lucknow informing him that the two posts of

A.D.G.C.(Criminal) were advertised and 29 applications were

received regarding which approval of the District Judge was

obtained on 28-04-2004. It was further stated in the said

letter that the District Judge, Ghazipur had mentioned that

the work, conduct and legal knowledge of all the candidates

were satisfactory and as he was agreeing with the view of the

District Judge, Ghazipur expressed in respect of 29

candidates, he was forwarding necessary data of 29

candidates. By the letter dated 01-05-2004 the District

Magistrate had requested the Special Secretary to take

necessary action of making appointments to the two posts of

A.D.G.C. (Criminal). Instead of acting upon recommendation

made by the District Magistrate to make appointments of

suitable candidates whose names were mentioned in the

panel, the Special Secretary and Upper Legal Remembrancer,

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Government of Uttar Pradesh, Lucknow, by an order dated 07-

09-2004 directed the District Magistrate to submit another

panel/list for appointment to the posts of A.D.G.C. (Criminal).

The District Magistrate by his letter dated 14.02.2005 declined

to submit another list stating that a panel list had already

been submitted by him. After the receipt of the letter dated

14.02.2005 the Special Secretary and Upper Legal

Remembrancer returned the first panel list sent by the District

Magistrate on 01-05-2004 without assigning any reason and

directed the District Magistrate, Ghazipur to advertise the

posts of A.D.G.C. (Criminal), afresh for appointment vide letter

dated 18.03.2005. According to the respondents there was no

occasion to advertise the posts of A.D.G.C. (Criminal) at all in

view of the recommendation made by the District Magistrate

on 01-05-2004.

4. Pursuant to the direction contained in the letter dated

18.03.2005, the District Magistrate again re-advertised the

aforesaid posts vide advertisement dated 01.04.2005. The

respondents were of the view that action of the appellants in

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not considering the recommendations made by the District

Magistrate on 01-05-2004, pursuant to the earlier

advertisement dated 16.01.2004 and returning the same and

further compelling the District Magistrate to re-advertise the

posts was illegal, arbitrary and not in accordance with law.

Therefore, they approached the High Court of Judicature at

Allahabad by filing Civil Misc. Wirt Petition No. 28444 of 2005.

In the writ petition, the prayer was to quash order date

18.03.2005 issued by the Special Secretary and Upper Legal

Remembrancer Government of Uttar Pradesh, Lucknow by

which the District Magistrate was directed to re-advertise the

posts as well as advertisment dated 01.04.2005 issued by the

District Magistrate, Ghazipur to fill up two posts of A.D.G.C.

(Criminal). Another prayer which was sought was to direct the

appellants to consider the recommendations of the District

Magistrate made on 01.05.2004 with which a panel list was

sent which included the names of the respondents for

appointments to the posts of A.D.G.C. (Criminal). The

respondents had also prayed to direct the appellants not to

interfere with their functioning as A.D.G.C. (Criminal) under

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the Judgeship of District Ghazipur.

5. On service of notice the appellants had filed the reply and

contested the claim made by the respondents.

6. The Division Bench which heard the Writ Petition had

perused original records. On perusal of original records,

the High Court found that two panels had been submitted

for two posts and after going through the same, the state

authorities had considered it proper to seek revised

panel/proposal by order dated 07-09-2004 of the Principal

Secretary to the Chief Minister. Having noticed this, the

High Court took into consideration, the submission made

by the learned counsel for the respondents that instead of

sending the new names, it would be desirable that in

respect of those ten candidates, whose names had been

included in the aforesaid two panels, better particulars were

sent to the State Government and the State Government

was asked to decide the two names after considering better

particulars.

9 The abovestated submission found favour with the High

Court and the High Court has set aside order dated

07-09-2004 holding that unless the panel submitted by the

District Magistrate in consultation with the District Judge is

rejected by the State Authorities on some disclosed grounds, it

is not open to the State to ask the District Magistrate to

constitute the revised panel. By the impugned Judgment, the

High Court while allowing the Writ Petition filed by the

respondents has directed the District Magistrate, Ghazipur

after consultation with District Judge to furnish better

particulars in respect of only those ten candidates whose

names were included in the two panels whereas the

Government is directed to make appointments therefrom in

accordance with law, giving rise to the present appeal.

7. This Court has heard the learned Counsel for the parties at

length and considered the documents forming part of the

appeal.

8. The vital issue raised in the appeal relates to the right of the

State Government to engage, disengage and renew the

10

terms of its Counsel and Law Officers in keeping with the

need to best safeguard the public interest, monetary

consideration, suitability of the incumbent and the interest

of the Government as the client. It may be mentioned that

the entire gamut of this exercise is governed by L.R. Manual

which is governing the conduct of legal affairs of the State of

Uttar Pradesh since last several decades, in matters relating

to the engagement, disengagement and renewal of

Government Counsel and Law Officers for the State

Government. The specific issue raised in the appeal

involves the question as to whether a legally enforceable

right to claim renewal of appointment to the post of

A.D.G.C. (Criminal) is available to the respondents and

what is the scope of judicial review in this regard. As

observed earlier the High Court has regarded the right to

renewal of appointment as a legally enforceable one and

therefore has chosen to interfere with the decision of the

State Government seeking to fill the post by direct selection

instead of renewing the terms of the respondents as was

claimed by them in the Writ Petition.

11 9. Before considering the question mentioned above, it would

be relevant to reproduce some of the provisions of the

L.R.Manual relating to the appointment and renewal of the

term of the Government Counsel. They are as under:-

"7.06 Appointment and renewal

(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 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

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period only, the reasons therefore 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 District 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 Counsel.

13 21.07. The appointment of Public Prosecutor or

Additional Public Prosecutor shall be made for a

period of three years but the State Government

may terminate such appointment at any time

without notice and without assigning any reasons.

The State Government may extend the period of

appointment from time to time, and such

extension of term shall not be treated as a new

appointment."

10. At this stage it would be relevant to notice certain facts

emerging from the reply affidavit filed by the appellants

before the High Court. The reply inter alia mentions that

though the District Magistrate had recommended renewal of

tenure of the respondents, he had furnished information

regarding the work done by the respondents in Form 4

perusal of which indicated that the respondent no.1 Mr.

Rakesh Kumar Keshari had appeared in 25 cases in all and

that in all those 25 cases the accused were acquitted,

whereas the respondent no.2 Mr. Kripa Shankar Rai had

appeared in 28 cases out of which in 26 cases the accused

were acquitted. The reply stated that the percentage of

success in cases handled by Mr. Keshari was Nil whereas in

the case of Mr. Rai the percentage was only 17 and

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therefore when the matter of renewal of their tenure was

considered by the Government, the Government had

decided not to extend the terms of those Government

Counsel whose success rate was very low. It was stated in

the reply that on the basis of this decision the terms of the

respondents were not extended and after expiry of their

term they had ceased to work on their respective posts. It

was further mentioned in the reply that on so many

occasions the respondents had approached the Government

for extension of their terms and many recommendations

were forwarded to the Government but since the

performance of the respondents was not found to be

satisfactory, a decision was taken not to renew their terms

and to issue advertisement for selection of better

candidates.

11. In view of the provisions quoted from the L.R.

Manual above as well as in view of poor performance of the

respondents as A.D.G.C. (Criminal) in Ghazipur District, this

Court is of the opinion that the right of the State Government

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to engage, disengage and renew the terms of its Counsel and

Law Officers in keeping with the need to best safeguard the

public interest and monetary considerations, suitability of the

incumbent and the interest of the Government as the client,

will have to be upheld.

12. This question has been considered by a three Judge

Bench of this Court in State of U.P. & Anr. Vs. Johri Mal

(2004) 4 SCC 714, almost in similar circumstances. The

respondent therein was appointed as D.G.C. (Criminal) at

Meerut on 07.01.1993. His term was renewed on 12.03.1996

and he was again appointed in the same capacity on

17.09.1997 for one year. However, subsequent thereto,

despite his request his term was not renewed and on

18.09.1998 he was relieved from the charge of the said post.

The vacancy was, thereafter, advertised. The respondents had

thereupon filed Writ Petition before the Allahabad High Court

challenging order dated 18.09.1998 on the ground that as the

District Magistrate and the District Judge had found his

conduct and work satisfactory and had recommended for

16

renewal of his term, the renewal ought to have been granted as

a matter of course. The High Court had held that there was

no good or cogent reason for rejecting the recommendation of

the District Judge. Therefore, the High Court had directed the

State Government to renew the respondent's term as D.G.C.

(Criminal). After referring to the decision of nine-Judge Bench

of this Court in Special Reference No. 1 of 1998, Re. (1998) 7

SCC 739, wherein it is ruled that the opinion of the Chief

Justice of India which has primacy in the matter of

recommendations for appointment to the Supreme Court, has

to be formed by a collegium consisting of the Chief Justice of

India and the four senior most puisne Judges of the Supreme

Court, the High Court had further opined that the District

Judge should not make the recommendation alone but should

constitute the 5 Member Collegium headed by himself for that

purpose. Although the State had pointed out to the High

Court that the respondent's case was not recommended by the

District Judge or the District Magistrate, the High Court had

directed that the question of renewal of the respondent's term

be considered afresh by the Collegium. The State had then

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filed appeals before this Court. The State Government had

contended before this Court that the High Court had

proceeded on wrong premise that the recommendation for

renewal of the respondent's term as D.G.C. (Criminal) had

been made by the District Magistrate and since the

appointment of Public Prosecutor was governed by the

provisions of the Criminal Procedure Code and renewal thereof

by the U.P. Legal Remembrancer's Manual, the High Court

committed a manifest error in directing the Constitution of

Collegium. It was also argued by the State before this Court

that the professional engagement of a lawyer could not be

equated with the appointment in a civil post as there exists a

relationship of client and a lawyer between the State and the

Public Prosecutor. On behalf of the respondent it was

submitted that the High Court had felt the need to constitute a

Collegium as the action on the part of the State in the

appointment and/or renewal of the term of D.G.C.s was found

to be arbitrary. It was also contended that the Public

Prosecutors were looking after the prosecution work and

therefore the office held by them was public in nature.

18 13. Allowing the appeal filed by the State this Court has

held that for a public law remedy enforceable under Article

226 of the Constituion, the actions of the authority need to fall

in the realm of a public law - be it a legislative act of the State,

an executive act of the State or an instrumentality or a person

or authority imbued with public law element. This Court has

further held that the question is required to be determined in

each case having regard to the nature of and extent of

authority vested in the State. After holding that the power of

judicial review is not intended to assume a supervisory role or

don the robes of the omnipresent, this Court has, in terms,

ruled that the power of judicial review is not intended either to

review governance under the rule of law nor do the Courts step

into the areas exclusively reserved by the Constitution to the

other organs of the State and has further cautioned that the

Court shall not ordinarily interfere with a policy decision of the

State. The Court also held that the decisions and actions

which do not have adjudicative disposition would not strictly

fall for consideration before a judicial review court. According

19

to this Court the limited scope of judicial review is (i) Courts,

while exercising the power of judicial review, do not sit in an

appeal over the decisions of administrative bodies (ii) A

petition for 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 was perverse or illegal (iv) A mere wrong

decision without anything more is not enough to attract the

power of judicial review (v) The supervisory jurisdiction

conferred on a Court is limited to seeing that the Tribunal

functions within the limits of its authority and that its

decisions do not occasion miscarriage of justice and (vi) the

Court shall not ordinarily interfere with a policy decision of the

State.

14. After referring to the L.R. Manual this Court has

specifically held that appointment of a Public Prosecutor or a

District Counsel would be professional in nature. This Court

in the said case, noticed the concession made on behalf of the

20

respondent therein that the holder of the office of the Public

Prosecutor does not hold a civil post and thereafter has held

that by holding a post of District Counsel or the Public

Prosecutor no status is conferred on the incumbent. This

Court in the said case has further ruled that so long as in

appointing a Counsel, the procedure laid down in L.R. Manual

is followed and a reasonable or fair procedure is adopted, the

Court would normally not interfere with the decision. What is

emphasized by this Court is that the nature of the office held

by a lawyer vis-`-vis, the State being in the nature of

professional engagement, the Courts are normally chary to

overturn any decision unless an exceptional case is made out.

According to this Court the question as to whether the State is

satisfied with the performance of its Counsel or not is

primarily a matter between it and the Counsel and the

extension of tenure of Public Prosecutor or the District

Counsel should not be compared with the right of renewal

under a licence or permit granted under a statute. What is

laid down as firm proposition of law is that an incumbent has

no legally enforceable right as such and the action of the State

21

in not renewing the tenure can be subjected to judicial

scrutiny inter alia only on the ground that the same was

arbitrary. It is also held that the Court normally would not

delve into the records with a view to ascertain as to what

impelled the State not to renew the tenure of the Public

Prosecutor or a District Counsel and the Jurisdiction of the

Courts in a case of this nature would be to invoke the doctrine

of "Wednesburry unreasonableness". This Court further held

that L.R. Manual contains executive instructions and is not

law within the meaning of Article 13. After emphasizing that a

Public Prosecutor is not only required to show his professional

competence but is also required to discharge certain

administrative functions, it is held that the respondent therein

had no effective control over A.D.G.C.s for taking steps and

therefore action on the part of the State was not wholly

without jurisdiction requiring interference by the High Court

in exercise of its power of judicial review while setting aside

the direction given by the High Court to constitute the five

member Collegium headed by the District Judge to make

recommendation for appointment to the post of D.G.C.

22

(Criminal), this Court had to take pains to explain to all

concerned that the appointment of District Government

Counsel cannot be equated with the appointments of the High

Court and Supreme Court Judges and a distinction must be

made between professional engagement and a holder of high

public office. This Court has explained that various doctrines

and the provisions of the Constitution which impelled the

Supreme Court in Special Reference Case, (1998) 7 SCC 739

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.

15. Applying the principles of law laid down by this

Court in the above quoted decision, this Court finds that the

decision of the State Government not to accept the

recommendation made by the District Magistrate cannot be

said to be arbitrary. There is no manner of doubt that the

A.D.G.C. (Criminal) are not only officers of the Court but also

23

the representatives of the State. They represent the interest of

the general public before a Court of law. The holders of the

post have a public duty to perform. However, in the matter of

engagement of A.D.G.C. (Criminal) a concept of public office

does not come into play. The choice is that of the Government

and none can claim a right to be appointed because it is a

position of great trust and confidence. Article 14, however in a

given case, may be attracted to a limited extent if the State

fails to discharge its public duty or acts in defiance, deviation

and departure of the principles of law.

16. This position is again made clear in an unreported

decision of this Court dated November 11, 2010 rendered in

Civil Appeal No. 3785 of 2003. In the said case the State of

U.P. by its order dated 03.06.2002 had rejected the request of

the respondent Satyavrat Singh for renewal of the extension

of his term as District Government Counsel (Criminal). The

respondent had challenged the same in the Writ Petition. The

Allahabad High Court had quashed the order 03.06.2002

refusing renewal of the term of the respondent as District

24

Government Counsel (Criminal) and had directed the State

Government to renew the term of the respondent as

Government Counsel. While allowing the appeal filed by the

State Government this Court has held as under:-

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

has upheld the unstatable proposition advanced by

the respondent for extension of his term as

Government Counsel. We wish to say no more in

this matter since the subject matter that arises for

our consideration is squarely covered by the

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

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

the view that in the matter of engagement of a

District Government Counsel, a concept of public

office does not come into play. The choice of a

counsel is for the Government and none can claim a

right to be a counsel. There is no right for

appointment of a Government Counsel.

The High Court has committed a grave error in

renewing the appointment of the respondent as

Government Counsel.

Needless to state that the High Court in exercise of

its jurisdiction under Article 226 of the Constitution

of India cannot compel the State to utilize the

services of an advocate irrespective of its choice. It

is for the State to select its own counsel.

The impugned order of the High Court is set aside.

The appeal is accordingly, allowed."

25 17. Thus it was not open to the respondents to file Writ

Petition under Article 226 of the Constitution for compelling

the appellants to utilize their services as Advocates

irrespective of choice of the State. It was for the State to select

its own Counsel. In view of the poor performance of the

respondents in handling/conducting criminal cases, this

Court is of the opinion that the High Court committed a grave

error in giving direction to the District Magistrate to forward

better particulars of 10 candidates whose names were

included in the two panels prepared pursuant to

advertisement dated 16.01.2004 and in setting aside order

dated 07-09-2004 of the Principal Secretary to the Chief

Minister, U.P. calling upon the District Magistrate to send

another panel/list for appointment to the two posts of

A.D.G.C. (Criminal).

18. The directions given by the High Court in the

impugned Judgment run contrary to the well-settled principles

of law and therefore cannot be upheld. Thus, the appeal

deserves to be allowed.

26 19. For the foregoing reasons the appeal succeeds. The

Judgment dated 11.07.2005 rendered by the Division Bench of

High Court of Allahabad in Civil Misc. Writ Petition No. 28444

of 2005 is set aside. The appeal accordingly stands disposed

of. In peculiar facts of the case there shall be no orders as to

cost.

............................J.

[J.M. Panchal]

............................J.

[H.L.Gokhale]

New Delhi;

May 04, 2011.