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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  13727  OF 2015 [Arising out of SLP (C) No. 36166 of 2014]

State of  U.P. & Ors. .. Appellants

Versus

Ajay Kumar Sharma & Anr. .. Respondents

WITH  C.A.  No.  13728  of  2015  [arising  out  of  SLP(C) No. 1425 of 2015]

J U D G M E N T

VIKRAMAJIT SEN, J.

1 Leave granted.

2 Applications  for  correcting  the  cause  title  and  all  the  applications  for  

impleadment as party respondent are allowed.

3 In  these  Appeals,  we  are  concerned  with  the  renewal  as  also  the  

appointment  of  District  Government  Counsel  (Civil  and  Criminal)  in  the  

Subordinate  Courts  across  the  State  of  Uttar  Pradesh.  The  State  as  the  

Appellant, has assailed the final judgment and order dated 5.11.2014 in Writ  

Petition being Misc. Bench No. 9127 of 2012 passed by a Division Bench of the

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High Court of Judicature at Allahabad, Lucknow Bench. The High Court in this  

impugned Order has quashed the Orders of the State Government terminating  

the appointment of District Government Counsel and has further directed the  

State Government to reconsider their renewal. Indubitably, the appointments as  

well as the renewals would have to be in consonance with Section 24 of the  

Code of Criminal Procedure (Cr.P.C. for brevity) and the Legal Remembrancer  

Manual (hereinafter referred to as the ‘LR Manual’) applicable throughout the  

State of U.P. The Manual which came into force in 1975  inter alia prescribes  

mandatory ‘consultation’ with the District Judge and the District Magistrate on  

the one side and the State on the other.    

4 In August 2008, the then State Government, in terms of the Government  

Order  dated  13.8.2008,  had  amended  the  LR Manual  thereby  removing  the  

process of consultation with the District Judge for the appointment of District  

Government Counsel; effectively, thereafter the LR Manual required the State to  

only consult with the District Magistrate. It was on the basis of the LR Manual  

as amended that the Respondents before us came to be appointed as District  

Government Counsel across the length and breadth of the State of U.P.   This is  

a noteworthy feature on which our decision will  turn in some measure.  The  

State Government’s Order, which is dated 13.8.2008, came to be assailed before  

the High Court of Judicature at Allahabad, Lucknow Bench in a bunch of more  

than 100 writ petitions, including the lead petition  U.P. Shaskiya Adhivakta  

Kalyan Samiti v. State of U.P.   Writ Petition Misc. Bench No. 7851 of 2008

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reported as (2012 (30) LCD 1066).   By an Order dated 6.1.2012 passed in those  

proceedings,  the  High  Court  directed  the  State  to  make  fresh  appointments  

expeditiously,  and  in  the  interregnum  permitted  the  existing  empanelled  

Advocates to discharge their duties.  Shortly thereafter, in Bishan Pal Saxena v.  

State of U.P.  Writ Petition Misc. Bench No. 8246 of 2011, in terms of its Order  

dated  12.1.2012 the  High Court  directed the  State  of  U.P.  to  reconsider  the  

selection  and  appointment  of  Advocates  to  the  “post  of  Additional  District  

Government  Counsel,  Assistant  District  Government  Counsel,  Panel  lawyers  

and Sub District Government Counsel”; that the persons appointed in pursuance  

of  old  provisions  would  continue  till  the  completion  of  the  reconsideration  

process; and, all fresh appointments would be carried out strictly in conformity  

with U.P. Shaskiya Adhivakta Kalyan Samiti and  Sadhna Sharma v. State of  

U.P [Writ Petition Misc. Bench No. 7825 of 2011].    

5 Aggrieved by the aforementioned Judgments, the State Government filed  

Special Leave Petitions No. 4042-4043 of 2012 titled State of U.P. & Ors. v.  

Sadhna Sharma, during the pendency of which there was a change in the State  

Government.   Immediately thereupon, a prayer was made before this Court for  

withdrawal  of  the Special  Leave Petitions on the predication that  the newly  

elected  State  Government  had  accepted  the  assailed  judgments  of  the  High  

Court of Allahabad and accordingly intended to implement it in its entirety.   In  

the  course  of  disposing  of  these  SLPs  this  Court  pointedly  and  poignantly

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observed  that  the  constitutional  validity  of  Section  24 Cr.P.C.  had not  been  

challenged.   This Court noted the unanimity in the opinion that the assailed  

judgments  of  the  High  Court  would  be  implemented.   Nevertheless,  three  

“clarifications”  were  recorded.   Firstly,  that  the  appointments  made  in  

consultation with the High Court and/or the District and Sessions Judge of the  

concerned district would not be disturbed.   Secondly - “Against the existing  

vacancies the cases of all the appellants herein, who are in service or are out of  

service as well as any of the petitioners before the High Courts, whose services  

were terminated at any point of time including the persons who had filed the  

Writ Petitions in the High Court during the pendency of writ petition and/or the  

present  civil  appeals  shall  be  considered  for  renewal/reconsideration  in  

accordance with the judgment of this Court within a period of three months  

from today......” Thirdly, personal responsibility was fastened on the Secretary,  

Department  of  Law and Justice,  Government  of  U.P.  to complete  the above  

appointments. Writ Petition No. 6069 of 2012 filed by Harsh Gupta and Others  

[titled Harsh Gupta v.  State of  U.P.]  was disposed of  by the High Court  on  

25.7.2012 in terms of the aforementioned Order of this Court.       

6 Consequent upon the passing of the above orders, the State Government  

issued a Government Order dated 11.6.2012 to the effect that the appointment of  

all  District  Government  Counsels  should  be  cancelled.  However,  the  

incumbents  were  permitted  to  continue  to  discharge  their  duties  till  fresh

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appointments were made.  The District Magistrates were to verify the number of  

vacancies on the Civil, Criminal and Revenue sides.  

7 In  terms  of  the  Government  Order  dated  5.9.2012,  pursuant  to  the  

Judgments of the Supreme Court dated 17.7.2012 and of the High Court on  

25.7.2012,  the  engagement  of  the  Respondents  was  put  to  an end and their  

renewal in the light of consultation reports was awaited.   This lead to the filing  

of writ petitions, including Ajay Kumar Sharma & Anr. v. State of U.P. [Writ  

Petition  Misc.  Bench  No.  9127  of  2012],  terming  the  cessation  of  the  

appointment  as  arbitrary.  However,  this  Court  vide  Order  dated  13.11.2013  

directed that “the cases of renewal of appointment of the existing incumbent  

shall likewise be considered in accordance with the provisions contained in LR  

Manual and the judgments of this Court.  This exercise shall be undertaken and  

completed within a period of four months from today.”  Eventually, in terms of  

the final Order dated 5.11.2014, which stands impugned before us, the High  

Court  in  Ajay  Kumar  Sharma  &  Anr.  v.  State  of  U.P.  issued  a  Certiorari  

quashing  the  Orders  declining  renewal  of  the  Respondents;  a  Mandamus  

directing the State Government to reconsider their candidature. The High Court  

had also issued a Mandamus directing the Government to set up a Directorate of  

Prosecution in pursuance of Section 25-A of Code of Criminal Procedure and  

lastly passed a direction to the District Judges and District Magistrates to ensure

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that  no  person  having  criminal  antecedents  should  be  permitted  to  work  as  

District Government Counsel.

8 The Learned Senior Counsel for Appellant/State, Mr. Kapil Sibal, submits  

that the impugned order of the High Court of Allahabad seeks to perpetuate an  

illegality.  He relies  heavily on the decision of  a  Three  Judge Bench of  this  

Court, namely, State of U.P. v. Johri Mal (2004) 4 SCC 714, to submit that an  

appointment to the post of a District Counsel is a professional appointment; no  

status of a public nature is conferred on the incumbent; as also that the LR  

Manual itself contains merely Executive instructions which do not contain the  

concomitants of Article 166(3); and therefore the LR Manual is not law under  

Article 13 of the Constitution of India; and that in  Johri Mal this Court has  

expressed reservations  against  Kumari  Shrilekha Vidyarthi v.  State  of  UP  

(1991) 1 SCC 212. Mr Sibal has also differentiated the facts before us from  

those  in  Kumari  Shrilekha Vidyarthi,  where  all  government  counsel  were  

terminated en masse by a government order.  On the question of maintainability  

of a writ of Mandamus issued against the State in the impugned order, Mr Sibal  

contends  that  the  Respondents  cannot  lay  claim  to  a  legal  right  nor  is  the  

Government  under a  legal  duty to  continue their  engagement,  both essential  

elements for a mandamus. He rightly concedes that a particular Respondent may  

seek a Certiorari with respect to the cessation of his individual appointments  

contrary to the norms of ‘Wednesbury reasonableness’.  Mr. Sibal has drawn our

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attention to State of UP v. State of UP Law Officers Association (1994) 2 SCC  

204 wherein this Court, while considering the appointments of Chief Standing  

Counsel, Standing Counsel and Government Advocates, has held that those who  

are appointed under an arbitrary procedure ought not be heard to complain if the  

termination of their appointments is equally arbitrary.  Mr. Sibal further submits  

that  the  order  presently impugned before  us  is  per  incuriam for  having not  

adhered to the judgments rendered by the co-ordinate benches of the High Court  

of Allahabad prior to the judgment impugned before us. He further submits that  

the aforesaid judgments  of  the  co-ordinate  benches,  i.e.,  Ram Charan Singh  

Prajapati v. State of UP in writ petition (c) 46350 of 2014 and Guru Prasad v.  

State of UP in writ petition (c) 39935 of 2014 propound the correct view of law,  

inter alia that allowing renewals to appointments made null and void in law  

amount to perpetuating an illegality.  In parting, learned Senior Counsel also  

contends that the argument on behalf of the Respondents predicated upon the  

applicability of de facto doctrine, is without merit.   

9 Learned  Senior  Counsel  for  the  Respondents,  Mr.  Aman  Lekhi  has  

submitted that the State is misguided in its approach, inasmuch as  Johri Mal  

does not detract from Kumari Shrilekha Vidyarthi  even on facts as renewal  

was a question before this Court even in the latter Two-Judge Bench judgment.  

The only reason why this Court intervened in  Johri Mal, and later again in  

State of UP v. Rakesh Kumar Keshri (2011) 5 SCC 341, was because in the

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former the recommendation was not in favour, and in the latter the incumbent  

was incompetent.  Mr. Lekhi further submits that the State Government cannot  

rely  upon  the  fact  that  the  appointments  were  void  because,  firstly,  the  

appointments were valid at that time and under extant Rules and also because  

the ‘de facto doctrine’ comes to their rescue.  He has placed reliance upon Dr. A.  

R. Sircar v. State of UP (1993) Supp 2 SCC 734 to substantiate this submission.  

Secondly, on the application of the doctrine of ‘comity of instrumentalities’, Mr.  

Lekhi learned Senior Counsel argues that the Executive cannot be permitted to  

overreach or nullify judicial pronouncements. Thirdly, that there is an element  

of  continuity  in  these  appointments  as  emphasised  in  Kumari  Shrilekha  

Vidyarthi.    Mr.  Manoj  Goel   learned  Counsel  for  some  of  the  other  

Respondents further submits that on a proper perusal of Andi Mukta Sadguru  

Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V. R.  

Rudani (1989) 2 SCC 691 and the Constitutional Bench in Zee Telefilms Ltd. v.  

Union of India (2005) 4 SCC 649, it is manifest that a mandamus cannot be  

denied on the ground that the duty to be enforced is not imposed by a statute  

and,  in  fact,  may  even  be  passed  in  order  to  enforce  a  contract.  He  has  

emphasised that  a Mandamus is  the appropriate  remedy in light  of  Kumari  

Shrilekha Vidyarthi because a public element is involved in the appointment  

of  DGCs and ADGCs which itself  is  ample reason to attract  Article 14 and  

judicial  review under  the  Constitution  of  India.  Our  attention  has  also  been  

drawn to State of UP v. Ashok Kumar Nigam (2013) 3 SCC 372  where this

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Court  has reiterated that  reasoning is the  sine qua non for  refusal  under the  

concerned provisions of LR Manual which they claim is not a valid basis for en  

masse rejection.   On the issue that the impugned Judgment of  the Lucknow  

Bench is  per incuriam, Mr Lekhi has submitted that the impugned Order has  

rightly ignored the decisions of  the co-ordinate Bench at Allahabad in Ram  

Charan Singh Prajapati v. State of UP and Guru Prasad v. State of UP because  

the  Allahabad  Bench  itself  passed  orders  which  are  per  incuriam.  Learned  

Senior  Counsel,  Mr.  Jitendra  Mohan  Sharma  also  submits  that  the  State  

Government has already agreed to reconsider the case of renewal of government  

lawyers in SLP(C) 4042-43 of 2012, State of UP v. Sadhna Sharma, and the  

State cannot take a different stand now.  However, it is to be noted that the State  

Government withdrew the appeal with a view to implement the judgment of the  

High Court in  UP Shaskiya Adhivakta Kayan Samiti  and had not agreed to  

reconsider  the  case  of  renewal  of  government  lawyers  as  put  forth  by  Mr.  

Sharma.

10 Time and again this Court has emphatically restated the essentials and  

principles of ‘Precedent’ and of Stare Decisis which are a cardinal feature of the  

hierarchical  character  of  all  Common Law judicial  systems.  The doctrine of  

Precedent mandates that  an exposition of  law must  be followed and applied  

even by coordinate or co-equal Benches and certainly by all smaller Benches  

and subordinate courts. That is to say that a smaller and a later Bench has no

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freedom other than to apply the law laid down by the earlier and larger Bench;  

that is the law which is said to hold the field.  Apart from Article 141, it is a  

policy of the courts to stand by precedent and not to disturb a settled point. The  

purpose of precedents is to bestow predictability on judicial decisions and it is  

beyond cavil that certainty in law is an essential ingredient of rule of law. A  

departure may only be made when a coordinate or co-equal Bench finds the  

previous decision to be of doubtful logic or efficacy and consequentially, its  

judicial  conscience is so perturbed and aroused that it  finds it  impossible to  

follow the existing ratio. The Bench must then comply with the discipline of  

requesting the Hon’ble Chief Justice to constitute a larger Bench.

11 If binding precedents even of co-ordinate strength are not followed, the  

roots of continuity and certainty of law which should be nurtured, strengthened  

perpetuated and proliferated will instead be deracinated.  Although spoken in a  

totally  different  context,  we  are  reminded  of  the  opening  stanza  of  the  

poem 'The  Second  Coming' authored  by  William  Butler  Yeats.  The  lines  

obviously do not advert to the principle of precedent but they are apposite in  

bringing out the wisdom of this ancient and venerable principle.

“Turning and turning in the widening gyre  The falcon cannot hear the falconer;  

Things  fall  apart;  the  centre  cannot  hold;  Mere anarchy is loosed upon the world.”

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12 In the context of interminably citing all decisions delivered by this Court,  

the Constitutional Bench in Union of India v.  Raghubir Singh (1989) 2 SCC  

754 has made the following enunciation of law:

“25. It is not necessary to refer to all the cases on the point. The  broad guidelines are easily deducible from what has gone before.  The possibility of further defining these guiding principles can be  envisaged  with  further  juridical  experience,  and  when  common  jurisprudential  values  linking  different  national  systems  of  law  may make a consensual pattern possible. But that lies in the future.

26. There was some debate on the question whether  a  Division  Bench  of  Judges  is  obliged  to  follow the  law  laid  down  by  a  Division Bench of a larger number of Judges. Doubt has arisen on  the  point  because  of  certain  observations  made  by  Chinnappa  Reddy,  J.  in  Javed  Ahmed  Abdul  Hamid  Pawala v.  State  of   Maharashtra. Earlier, a Division Bench of two Judges, of whom he  was one, had expressed the view in T.V. Vatheeswaran v.  State of   Tamil Nadu that delay exceeding two years in the execution of a  sentence  of  death  should  be  considered  sufficient  to  entitle  a  person  under  sentence  of  death  to  invoke  Article  21  of  the  Constitution and demand the quashing of  the sentence of  death.  This would be so, he observed, even if the delay in the execution  was occasioned by the time necessary for filing an appeal or for  considering the reprieve of the accused or some other cause for  which  the  accused  himself  may  be  responsible.  This  view was  found unacceptable by a Bench of three-Judges in  Sher Singh v.  State of Punjab, where the learned Judges observed that no hard  and  fast  rule  could  be  laid  down  in  the  matter.  In  direct  disagreement  with  the  view  in  T.V.  Vatheeswaran,  the  learned  Judges said that account had to be taken of the time occupied by  proceedings  in  the  High  Court  and  in  the  Supreme  Court  and  before the executive authorities,  and it  was relevant  to consider  whether the delay was attributable to the conduct of the accused.  As a member of another Bench of two Judges, in  Javed Ahmed  Abdul Hamid Pawala Chinnapa Reddy, J. questioned the validity  of  the  observations  made  in  Sher  Singh and  went  on  to  note,

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without expressing any concluded opinion on the point, that it was  a serious question:

“Whether  a  Division  Bench  of  three-Judges  could  purport  to  overrule the judgment of a Division Bench of two Judges merely  because three is larger than two. The Court sits in Divisions of two  and  three-Judges  for  the  sake  of  convenience  and  it  may  be  inappropriate for a Division Bench of three-Judges to purport to  overrule the decision of  a Division Bench of two Judges.  (Vide  Young v. Bristol Aeroplane Co. Ltd.) It may be otherwise where a  Full Bench or a Constitution Bench does so.”

It is pertinent to record here that because of the doubt cast on the  validity of the opinion in Sher Singh, the question of the effect of  delay  on  the  execution  of  a  death  sentence  was  referred  to  a  Division  Bench  of  five  Judges,  and  in  Triveniben v.  State  of   Gujarat, the Constitution Bench overruled T.V. Vatheeswaran.

27. What then should be the position in regard to the effect of the  law pronounced by a Division Bench in relation to a case raising  the same point subsequently before a Division Bench of a smaller  number  of  Judges?  There  is  no  constitutional  or  statutory  prescription in the matter, and the point is governed entirely by the  practice in India of the courts sanctified by repeated affirmation  over  a  century  of  time.  It  cannot  be  doubted  that  in  order  to  promote  consistency  and  certainty  in  the  law  laid  down  by  a  superior Court, the ideal condition would be that the entire Court  should  sit  in  all  cases  to  decide  questions  of  law,  and  for  that  reason the Supreme Court of the United States does so. But having  regard to the volume of work demanding the attention of the Court,  it has been found necessary in India as a general rule of practice  and  convenience  that  the  Court  should  sit  in  Divisions,  each  Division  being  constituted  of  Judges  whose  number  may  be  determined by the exigencies of judicial need, by the nature of the  case including any statutory mandate relative thereto, and by such  other  considerations  which  the  Chief  Justice,  in  whom  such  authority devolves by convention, may find most appropriate. It is  in order to guard against the possibility of inconsistent decisions  on points of law by different Division Benches that the Rule has

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been evolved, in order to promote consistency and certainty in the  development  of  the  law  and  its  contemporary  status,  that  the  statement of the law by a Division Bench is considered binding on  a Division Bench of  the same or lesser  number of Judges.  This  principle  has  been  followed  in  India  by  several  generations  of  Judges. We may refer to a few of the recent cases on the point. In  John Martin v.  State of West Bengal, a Division Bench of three- Judges found it right to follow the law declared in Haradhan Saha  v.  State  of  West  Bengal,  decided  by  a  Division  Bench  of  five  Judges, in preference to  Bhut Nath Mate v.  State of West Bengal  decided by a Division Bench of two Judges. Again in Indira Nehru  Gandhi v. Raj Narain, Beg, J. held that the Constitution Bench of  five  Judges  was  bound  by  the  Constitution  Bench  of  thirteen  Judges in  Kesavananda Bharati v.  State of Kerala.  In  Ganapati   Sitaram Balvalkar v.  Waman Shripad Mage, this Court expressly  stated that the view taken on a point of law by a Division Bench of  four  Judges  of  this  Court  was  binding on a  Division  Bench of  three-Judges of the Court. And in Mattulal v. Radhe Lal, this Court  specifically  observed  that  where  the  view  expressed  by  two  different Division Benches of this Court could not be reconciled,  the  pronouncement  of  a  Division  Bench  of  a  larger  number  of  Judges had to be preferred over the decision of a Division Bench of  a smaller number of Judges. This Court also laid down in Acharya  Maharajshri Narandraprasadji Anandprasadji Maharaj v. State of   Gujarat that  even  where  the  strength  of  two differing  Division  Benches consisted of the same number of Judges, it was not open  to one Division Bench to decide the correctness or otherwise of the  views of the other. The principle was reaffirmed in Union of India  v. Godfrey Philips India Ltd. which noted that a Division Bench of  two  Judges  of  this  Court  in  Jit  Ram  Shiv  Kumar v.  State  of   Haryana had differed from the view taken by an earlier Division  Bench of two Judges in Motilal Padampat Sugar Mills v. State of   U.P. on  the  point  whether  the  doctrine  of  promissory  estoppel  could be defeated by invoking the defence of executive necessity,  and holding that to do so was wholly unacceptable reference was  made to the well accepted and desirable practice of the later Bench

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referring the case to a larger Bench when the learned Judges found  that the situation called for such reference.

28. We are of opinion that a pronouncement of law by a Division  Bench of this Court is binding on a Division Bench of the same or  a smaller  number of  Judges,  and in order that  such decision be  binding, it is not necessary that it should be a decision rendered by  the Full Court or a Constitution Bench of the Court. We would,  however, like to think that for the purpose of imparting certainty  and endowing due authority decisions of this Court in the future  should be rendered by Division Benches of at least three-Judges  unless, for compelling reasons, that is not conveniently possible.”

13 In a more recent decision of this Court, a Bench of 5 Judges in Chandra  

Prakash v. State of UP (2002) 4 SCC 234 reaffirmed the principle enunciated  

above in  Raghubir Singh’s case, and reference may be had to the following  

extract therefrom :

“22. A careful  perusal  of  the  above  judgments  shows  that  this  Court took note of the hierarchical character of the judicial system  in India. It also held that it is of paramount importance that the law  declared by this Court should be certain, clear and consistent. As  stated in the above judgments,  it  is  of  common knowledge that  most of the decisions of this Court are of significance not merely  because they constitute an adjudication on the rights of the parties  and resolve the disputes between them but also because in doing so  they embody a declaration of law operating as a binding principle  in  future  cases.  The doctrine  of  binding precedent  is  of  utmost  importance  in  the  administration  of  our  judicial  system.  It  promotes certainty and consistency in judicial decisions. Judicial  consistency promotes confidence in the system, therefore, there is  this need for consistency in the enunciation of legal principles in  the decisions of this Court. It is in the above context, this Court in  the case of Raghubir Singh held that a pronouncement of law by a  Division Bench of this Court is binding on a Division Bench of the  same  or  smaller  number  of  Judges.  It  is  in  furtherance  of  this

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enunciation of law, this Court in the latter judgment of Parija held  that: (SCC p. 4, para 6)

“But  if  a  Bench of  two learned Judges concludes that  an  earlier judgment of three learned Judges is so very incorrect   that  in  no  circumstances  can  it  be  followed,  the  proper  course for  it  to adopt is  to refer the matter  before it  to a  Bench of three learned Judges setting out, as has been done  here,  the  reasons  why it  could  not  agree  with  the  earlier  judgment. If, then, the Bench of three learned Judges also  comes to the conclusion that the earlier judgment of a Bench  of three learned Judges is incorrect, reference to a Bench of  five learned Judges is justified.” ”

Applying Sub-Inspector Rooplal v. Lt. Governor (2000) 1 SCC 644, this Court  

in Government of Andhra Pradesh v. A. P. Jaiswal, (2001) 1 SCC 748 has said  

that:  

“Consistency is the cornerstone of the administration of justice. It  is  consistency  which  creates  confidence  in  the  system and  this  consistency can never be achieved without respect to the rule of  finality.  It  is  with  a  view  to  achieve  consistency  in  judicial  pronouncements, the courts have evolved the rule of precedents,  principle of stare decisis etc. These rules and principles are based  on public policy and if these are not followed by courts then there  will  be chaos  in  the  administration of  justice,  which we see  in  plenty in this case.”

14 Sitting in a Division Bench of two, we at present can do no better than  

apply  the  rules  of  precedent  as  have  been  left  for  us  to  follow.  The  law  

pertaining  to  the  appointment  of  Additional  District  Government  Counsel,  

Assistant  District  Government  Counsel,  Panel  lawyers  and  Sub  District  

Government  Counsel  was directly  in  issue before the Three-Judge Bench in  

State  of  U.P.  v.  Johri  Mal (2004)  4  SCC  714  where  the  law  has  been

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comprehensively  clarified.  No  purpose  is  served  by  discussing  Kumari  

Shrilekha Vidyarthi or any judgments rendered thereafter.

 15 In  Johri Mal,  this Court  perused the LR Manual as also the Code of  

Criminal Procedure and reiterated that the District Counsel stood professionally  

engaged; that the State Government was free to determine the course of action  

after  being  satisfied  of  their  performance,  and  that  the  Courts  must  be  

circumspect in the exercise of judicial review on matters which fell within the  

discretion  of  the  State  Government,  i.e.  appointment  of  their  counsel  or  

advocates.  This  Court  reiterated  that  the  District  Counsels  do  not  enjoy the  

statutory  rights  with  respect  to  the  renewals  of  tenures  and  the  State  

Government  enjoyed  the  discretionary  powers  in  this  respect.  The  curial  

performance  of  the  advocates  should  not  be  the  sole  criterion  for  their  re-

appointment as District Counsel and that the State Government must be free to  

repose trust and confidence in the persons whom they choose to appoint as their  

advocates.  We can do no better than reproduce the following paragraphs from  

this judgment which is binding on us as also on any and every other Two-Judges  

Bench:

“40. 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-à-vis  the  State  being  in  the  nature  of  professional  engagements,  the  courts  are  normally  chary  to  overturn  any  decision unless an exceptional case is made out. The question as to

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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. ...”

41. In Om Kumar v. 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 rights of the Public Prosecutor or the District  Counsel  do  not  flow  under  a  statute.  Although,  discretionary  powers are not beyond the 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.

...

44. 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  the  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,

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even  a  good  performance  by  a  lawyer  may  not  be  of  much  importance.

...

46. 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’s Manual.

...

75. In the matter of engagement of a District Government Counsel,  however,  a  concept  of  public  office  does  not  come  into  play.  However, it is true that in the matter of counsel, the choice is that  of  the Government and none can claim a right  to be appointed.  That must necessarily be so because it is a position of great trust  and  confidence.  The  provision  of  Article  14,  however,  will  be  attracted to a limited extent as the functionaries named in 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 acts 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 dehors  the statute. ”  

16 It is beyond cavil that it is in the interest of the dispensation of criminal  

justice that competent counsel possessing integrity should alone be appointed,  

since  otherwise,  there  is  a  strong  possibility  of  miscarriage  of  justice.   In  

choosing them, the State will  not  only have to be satisfied of  their  forensic

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competence, but also that they are bereft of any criminal antecedents.   This,  

however,  does not  mean that  the persons presently discharging the duties of  

Additional  District  Government  Counsel,  Assistant  District  Government  

Counsel, Panel lawyers and Sub District Government Counsel stand appointed  

to civil posts, thereby creating a right of continuity.  In our opinion, which is an  

echo of that articulated in  Johri Mal,  the State, like any other litigant, must  

have the freedom to appoint counsel in whom they repose trust and confidence.  

The only expectation is that the choice made by the State should not be such as  

could defeat the sacred and onerous responsibility of ensuring that the justice is  

meted out to all citizens.  In Johri Mal, this Court has categorically rejected the  

claim of an advocate to continuous renewal or re-appointment as a Government  

Advocate.  We entirely agree with this exposition of the law.  We think that the  

correct approach is to ensure the competency of advocates being considered for  

appointment  of  Additional  District  Government  Counsel,  Assistant  District  

Government Counsel, Panel lawyers and Sub District Government Counsel.  It  

seems to  us  that  it  would  be  an  incorrect  approach  to  start  this  process  by  

considering the re-appointment or  renewal  of  existing Government Counsels  

since  that  would  dilute,  nay,  dissolve  the  discretion  of  the  Government  to  

appoint advocates whom they find trustworthy.  The High Court has followed  

the second approach leading to the dissatisfaction of the State Government and  

their resentment that their realm of discretion has been eroded for no justifiable  

reason.

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17 The  Appeals  are  allowed.  The  impugned  Judgment  is  set  aside,  but  

without imposition of costs.   Fresh appointments to be made expeditiously.

..................................................J. (VIKRAMAJIT SEN)

...................................................J. (ABHAY MANOHAR SAPRE)

New Delhi, November 26, 2015.

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    REPORTABLE [

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

   CIVIL APPEAL No.  13727  OF 2015

(ARISING OUT OF SLP (C) No. 36166/20

State of U.P. & Ors. …..….Appellant(s)

VERSUS

Ajay Kumar Sharma & Anr. ……Respondent(s)

WITH

CIVIL APPEAL No.  13728   OF 2015

(ARISING OUT OF SLP (C) No.1425/2015)

J U D G M E N T

Abhay Manohar Sapre, J.

1.  I  have  had  the  benefit  of  reading  the  scholarly  

judgment of my learned Brother Justice Vikramajit Sen  

and  I  am in  respectful  agreement  with  his  opinion.  I,  

however, add only few words of concurrence.

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2.   I entirely agree with my learned Brother that the  

issues  which  are  the  subject  matter  of  these  appeals  

such  as  issues  relating  to  scope  and  interpretation  of  

Section 24 of  the Code of Criminal Procedure, 1973 (in  

short  “Cr.P.C.”),  the  issues  relating  to  appointment,  

renewal, extension of tenure of Public Prosecutor/District  

Government Counsel, their nature and lastly provisions  

of (UP Government) Legal Remembrance’s Manual and, in  

particular,  provisions  dealing  with  such  

appointment/renewal/extension of tenure etc.  remain no  

more res-integra and stand authoritatively decided by a  

Bench of three judges in  State of U.P. vs. Johri Mal  

(2004)  4  SCC  714.  This  decision  was  followed  

consistently  by  this  Court  as  and  when  these  issues  

arose  for  consideration  (see  State  of  U.P.  &  Ors.  vs.  

Rakesh  Kumar  Keshari  &  Anr. (2011)  5  SCC  341,  

Centre for Public Interest Litigation & Ors. vs. Union  

of India & Ors., (2012) 3 SCC 117, Deepak Aggarwal vs.  

Keshav Kaushik & Ors. (2013) 5 SCC 277 and State of  

U.P. & Ors. vs. Satyavrat Singh (2014) 14 SCC 548).

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3. In  these  circumstances  and  keeping  in  view  the  

authoritative  pronouncement  rendered  in  Johri  Mal’  

case (supra), there does not arise any occasion to again  

examine  the  same issues  more  so  when in  these  very  

proceedings  though  at  the  instance  of  some  other  

persons,  these  issues  had  reached  to  this  Court  on  

previous occasions as mentioned by my learned Brother  

in the main judgment which also came to be decided by  

this Court.  

4. Indeed  the  principles  of   "precedent"  and  "Stare  

Decisis" command us to follow the law laid down by this  

Court  and more so when it  was rendered by a  Bench  

consisted of three judges.

5. I am also of  the view that the High Court though  

dealt  with  the  issues  but  as  aptly  put  by  my learned  

Brother in paragraph 15 "incorrectly" thereby calling our  

interference.

6. In  my  considered  opinion,  therefore,  the  fresh  

appointments to be now made keeping in view the apt  

observations made especially  in  the  case of  Johri  Mal

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(supra) (paras 40 to 44) and what is held hereinabove in  

main judgment.

                          ..……..................................J.

       [ABHAY MANOHAR SAPRE]

New Delhi;

November  26, 2015.  

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