STATE OF U.P Vs RAKESH KUMAR KESHARI
Bench: J.M. PANCHAL,H.L. GOKHALE, , ,
Case number: C.A. No.-003935-003935 / 2011
Diary number: 11303 / 2006
Advocates: Vs
RAMESHWAR PRASAD GOYAL
REPORTABLE THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3935 OF 2011 (Arising out of S.L.P. (Civil) No. 11888 OF 2006)
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
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
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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
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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.
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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
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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.
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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.
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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
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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.
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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
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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
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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-à-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
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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.
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(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
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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
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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.”
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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.
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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.
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