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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.10290  OF 2013 (Arising out of SLP(C) No. 11834 of 2013)

State of U.P. and others ....Appellants

versus

Ajay Kumar Sharma and another ....Respondents

J U D G M E N T

G.S. SINGHVI, J.

1. Leave granted.

2. Legal  Remembrancer’s  Manual  (for  short,  ‘LR Manual’)  framed by the  

Government of Uttar Pradesh and Section 24 of the Code of Criminal Procedure  

(Cr.P.C.)  contain  a  comprehensive  mechanism  for  appointment  of  District  

Government Counsel  for  Civil,  Criminal and Revenue Courts  in the State  and  

renewal of their term. However, from 1990 onwards these provisions have become  

victim of  the  spoil  system and  have  been  misused  by the  party  in power  for  

conferring favours upon chosen advocates. In last 21/2 decades the appointments  

and  renewal  or  non-renewal  of  the  term of  District  Government Counsel  and  

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termination of their services generated huge litigation, the disposal of which has  

consumed substantial time of the Allahabad High Court and this Court.

3. In Kumari Shrilekha Vidyarthi v. State of U.P. (1991) 1 SCC 212, this Court  

declared as arbitrary and unconstitutional the State Government’s decision to  en  

masse terminate the appointment of District Government Counsel in all the districts  

as a prelude to fresh appointments.  

4. In State of U.P. v. Ramesh Chandra Sharma (1995) 6 SCC 527, this Court  

interpreted paragraph 7.06(3) of the LR Manual and observed:

“In view of the clear  provision in clause  (3)  of para  7.06 that  the  ‘appointment  of  any  legal  practitioner  as  a  District  Government  Counsel is only professional engagement’, it is difficult to appreciate  the  submission for  which sustenance  is  sought from the  provisions  contained in the same Manual. The appointment being for a fixed term  and requiring express renewal in the manner provided in the Manual,  there is no basis to contend that it is not a professional engagement of a  legal  practitioner  but  appointment  to  a  post  in government service  which continues till attaining the age of superannuation. In the earlier  decisions of this Court including Shrilekha Vidyarthi, the appointment  of District Government Counsel under the Manual has been understood  only  as  a  professional  engagement  of  a  legal  practitioner.  This  contention is, therefore, rejected.”

5. In Harpal Singh Chauhan v. State of U.P. (1993) 3 SCC 552, this Court  

analysed the provisions of LR Manual and observed:

“As already mentioned above, Section 24 of the Code does not speak  about the extension or renewal of the term of the Public Prosecutor or  Additional Public Prosecutor. But after the expiry of the term of the  appointment  of  persons  concerned,  it  requires  the  same  statutory  exercise, in which either new persons are appointed or those who have  been working as Public Prosecutor or Additional Public Prosecutor, are  again  appointed  by  the  State  Government,  for  a  fresh  term.  The  

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procedure prescribed in the Manual — to the extent it is not in conflict  with  the  provisions  of  Section  24  —  shall  be  deemed  to  be  supplementing the statutory provisions. But merely because there is a  provision for extension or renewal of the term, the same cannot be  claimed as a matter of right.

It is true that none of the appellants can claim, as a matter of right, that  their terms should have been extended or that they should be appointed  against  the  existing  vacancies,  but,  certainly,  they  can  make  a  grievance that either they have not received a  fair treatment by the  appointing authority or that the procedure prescribed in the Code and  in the Manual aforesaid, has not been followed. While exercising the  power of judicial review even in respect of appointment of members of  the legal profession as  District  Government Counsel,  the Court can  examine  whether  there  was  any  infirmity  in  the  ‘decision-making  process’. Of course, while doing so, the Court cannot substitute its own  judgment  over  the  final  decision  taken  in  respect  of  selection  of  persons for those posts.”

6. In State of U.P. v. Johri Mal (2004) 4 SCC 714, this Court (three Judge  

Bench) considered the question whether the respondent who had been appointed as  

District Government Counsel (Criminal) at Meerut in January, 1993 was entitled to  

have the term of his appointment renewed. The Division Bench of the High Court  

allowed the writ petition filed by the respondent and directed the State Government  

to renew the term of his appointment. This Court referred to the provisions of  

Section 24 of the Code of Criminal Procedure and amendment made therein by the  

Government  of  Uttar  Pradesh  as  also  LR  Manual,  some  judicial  precedents  

including Kumari  Shrilekha  Vidyarthi  v.  State  of  U.P.  (supra),  Harpal  Singh  

Chauhan  v.  State  of  U.P.  (supra),  State  of  U.P.  v.  U.P.  State  Law  Officers  

Association (1994) 2 SCC 204, State of U.P. v. Ramesh Chandra Sharma (supra)  

and made the following significant observations about the nature of the office held  

by District Government Counsel:

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“The District Government Counsel appointed for conducting civil as  also criminal cases hold offices of great importance. They are not only  officers of the court but also the representatives of the State. The court  reposes a great deal of confidence in them. Their opinion in a matter  carries great weight. They are supposed to render independent, fearless  and non-partisan views before the court irrespective of the result of  litigation which may ensue.

The Public Prosecutors have greater responsibility. They are required  to  perform statutory  duties  independently having regard  to  various  provisions  contained  in  the  Code  of  Criminal  Procedure  and  in  particular Section 320 thereof.

The Public Prosecutors and the Government Counsel play an important  role in administration of justice.  Efforts are  required to be made to  improve  the  management  of  prosecution  in  order  to  increase  the  certainty of conviction and punishment for most serious offenders and  repeaters. The prosecutors should not be overburdened with too many  cases of widely varying degrees of seriousness with too few assistants  and inadequate  financial resources.  The prosecutors  are  required to  play a significant role in the administration of justice by prosecuting  only those who should be prosecuted and releasing or directing the use  of non-punitive methods of treatment of those whose cases would best  be processed.

The  District  Government  Counsel  represent  the  State.  They,  thus,  represent the interest of the general public before a court of law. The  Public Prosecutors while presenting the prosecution case have a duty to  see that innocent persons may not be convicted as well as an accused  guilty of commission of crime does not go unpunished. Maintenance of  law and order in the society and, thus, to some extent maintenance of  rule of law which is the basic fibre for upholding the rule of democracy  lies  in  their  hands.  The  Government  Counsel,  thus,  must  have  character,  competence,  sufficient experience  as  also  standing at  the  Bar.  The need for employing meritorious and competent persons to  keep the standard of the high offices cannot be minimised. The holders  of the post  have a  public duty to  perform. Public element is,  thus,  involved therein.

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

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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.”

The Court then considered whether the High Court was right in issuing a manda-

mus for renewal of the term of the respondent as District Government Counsel  

(Criminal):

“The age-old tradition on the part of the State in appointing the District  Government  Counsel  on  the  basis  of  the  recommendations  of  the  District Collector in consultation with the District Judge is based on  certain principles. Whereas the District Judge is supposed to know the  merit,  competence  and  capability  of  the  lawyers  concerned  for  discharging their duties, the District Magistrate is supposed to know  their conduct outside the court vis-à-vis the victims of offences, public  officers,  witnesses,  etc.  The District  Magistrate  is also supposed to  know about  the  conduct  of  the  Government  Counsel  as  also  their  integrity.

We are also pained to see that the State of Uttar Pradesh alone had  amended sub-section (1) of Section 24 and deleted sub-sections (4), (5)  and (6) of Section 24 of the Code of Criminal Procedure. Evidently, the  said legislative step had been taken to overcome the decision of this  Court in Kumari Shrilekha Vidyarthi. We do not see any rationale in  the said  action.  The learned counsel  appearing for  the State,  when  questioned, submitted that such a step had been taken having regard to  the  fact  that  exhaustive  provisions  are  laid  down  in  the  Legal  Remembrancer’s Manual which is a complete code in itself. We see no  force  in  the  said  submission  as  a  law  cannot  be  substituted  by  executive  instructions  which  may  be  subjected  to  administrative  vagaries.  The  executive  instructions  can  be  amended,  altered  or  withdrawn at the whims and caprice of the executive for the party in  power. Executive instructions, it is beyond any cavil, do not carry the  same status as of a statute.

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The State  should bear in mind the dicta of this Court  in Mundrika  Prasad Singh as  regards the necessity to consult the District Judge.  While making appointments of District Government Counsel, therefore,  the State should give primacy to the opinion of the District Judge. Such  a course of action would demonstrate fairness and reasonableness of  action and, furthermore, to a large extent the action of the State would  not  be  dubbed  as  politically  motivated  or  otherwise  arbitrary.  As  noticed hereinbefore,  there also  does  not  exist  any rationale behind  deletion of the provision relating to consultation with the High Court in  the matter of appointment of the Public Prosecutors in the High Court.  The said provision being a salutary one, it is expected that the State of  U.P.  either would suitably amend the same or despite deletion shall  consult the High Court with a view to ensure fairness in action.”

7. The aforesaid judgment was followed by a two Judge Bench in State of U.P.  

v. Rakesh Kumar Keshari (2011) 5 SCC 341 and it was held that the respondent  

was not entitled to claim renewal of his term as of right. Paragraphs 32 to 36 of  

that judgment read as under:

“32. This Court in Johri Mal case further held that the L.R. Manual  contains executive instructions and is not law within the meaning of  Article  13.  After  emphasising 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  ADGCs  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  DGC  (Criminal),  this  Court  had  to  take  pains  to  explain  to  all  concerned that the appointment of the District Government Counsel  cannot be equated with the appointments of the High Court and the  Supreme  Court  Judges  and  a  distinction  must  be  made  between  professional engagement and a holder of high public office.

33. This Court has explained that various doctrines and the provisions  of  the  Constitution  which  impelled  the  Supreme  Court  in  Special  Reference  case,  to  give  the  meaning  of  “consultation”  as  “concurrence”  and  wherein  the  Chief  Justice  of  India  will  have  a  

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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.

34.  Applying the  principles of  law laid down by this  Court  in the  abovequoted 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 ADGC (Criminal) are not only officers of the court but also 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 ADGC (Criminal)  the 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.

35. This position is again made clear in an unreported decision of this  Court dated 11-11-2010 rendered in Civil Appeal No. 3785 of 2003. In  the said case the State of U.P. by its order dated 3-6-2002 had rejected  the  request  of  the  respondent  Satyavrat  Singh for  renewal  of  the  extension of his term as a District Government Counsel (Criminal). The  respondent had challenged the same in the writ petition. The Allahabad  High Court had quashed the order 3-6-2002 refusing renewal of the  term of the respondent as a District 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. v. Johri Mal. 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.

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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  utilise  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.”

36. Thus it was not open to the respondents to file writ petition under  Article 226 of the Constitution for compelling the appellants to utilise  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 the advertisement dated 16-1-2004 and in setting aside the  order dated 7-9-2004 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 ADGC (Criminal).”

(emphasis added)

8. In the meanwhile, the State Government issued order dated 13.8.2008 by  

which LR Manual was amended and the requirement of consultation with District  

Judge in the matter of appointment of District Government Counsel was deleted.  

That order was challenged before the High Court in W.P. (C) No.7851/2008 and a  

batch of more than 100 writ petitions. The same were disposed of by a Division  

Bench of the High Court vide order dated 6.1.2012, the operative portion of which  

reads as under:

“253. (1) In view of above, the writ petitions are allowed and a writ in  the nature of certiorari is issued quashing the impugned Government  Order  dated  13.8.2008  contained in Annexure No.l  to  writ  petition  No.7851(M/B) of 2008 to the extent of the amendment made in the  L.R. Manual deleting the consultation process with the District Judge  with consequential benefits,

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(2) A further writ, order or direction in the nature of certiorari is  issued quashing the orders dated 17.4.2011 and 20.4.2011, contained  as Annexures 1 and 2 respectively to writ petition No.3922(M/B) of  2011,  order  dated  28.4.2011,  followed  by  order  dated  30.4.2011  contained  as  Annexures  26  and  27  respectively  in  writ  petition  No.4817(M/B)  of  2011,  order  dated  17.4.2011  and  order  dated  19.4.2011, contained as Annexures 1 and 2 respectively in writ petition  No.4084(M/B)  of  2011  and  the  impugned  order  dated  18.4.2011,  passed in Writ Petition No.3860(M/B) of 2011 contained in Annexure  No.l  with  costs,  Cost  is  quantified  to  Rs.2  lacs  for  each  of  the  petitioners  of  the  aforesaid  four  writ  petitions,  out  of  which,  the  petitioners shall be entitled to withdraw an amount of Rs. 1,50,000/-  and the rest Rs.50,000/- shall be transmitted to the Mediation Centre of  this Court at Lucknow. Let the cost be deposited within two months  from today.  In the event  of  default  to  deposit  the  cost,  it  shall  be  recovered  as  arrears  of  land  revenue  by  the  District  Magistrate  concerned and thereafter be remitted to this Court.  Registry to take  follow-up action.

(3) A further writ, order or direction in the nature of mandamus is  issued  directing the  State  Government to  remove all  those  District  Government Counsel or Addl. District Government Counsel who have  been involved in criminal case  or against whom an investigation of  criminal case is pending after serving a show cause notice within a  period of two months.

(4) A further writ, order or direction in the nature of mandamus is  issued  commanding  the  State  of  U.P  to  re-advertise  the  posts  in  question keeping in view the observation made in the body of judgment  and  take  a  fresh  decision  strictly in accordance  with  L.R.  Manual  expeditiously, say within a  period of three months.  The petitioners,  who were working at the time of filing of the writ petitions shall be  permitted  to  continue to  discharge  their  obligation till their  case  is  reconsidered  in  accordance  with  the  provisions  contained  in  L.R.  Manual after fresh advertisement of the vacancies in the newspaper.  

Let a copy of the judgment be sent to Hon'ble the Chief Justice of this  Court, the Chief Secretary of the State Government and the Principal  Secretary, Law forthwith by the registry.”

Similar  writ  petitions  were  disposed  of  by  the  High Court  vide  orders  dated  

11.1.2012,  12.1.2012 and 9.2.2012 by adopting the reasons contained in order  

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dated 6.1.2012.

9. The  State  of  Uttar  Pradesh  challenged  the  aforesaid  orders  in  SLP(C)  

Nos.4042-4043/2012  –  State  of  U.P.  and others  v.  Sadhna Sharma and batch  

matters. At the hearing of the special leave petitions, a statement was made on  

behalf of the State Government that it has taken a policy decision to implement the  

High Court’s order and not to press the matter pending before this Court. In view  

of the statement made on behalf of the State Government, this Court disposed of  

the  special  leave  petitions  vide  order  dated  17.7.2012  (revised),  the  relevant  

portions of which are reproduced below:

“We may notice that the primary contention raised before us is not with  regard  to  the  constitutional  validity  or  otherwise  of  the  amended  provisions of the Criminal Procedure Code but the contention is that  the State Government despite its policy decision is not implementing  the judgment of the High Court in its  true spirit and substance.  To  substantiate  such  a  plea,  the  argument is  that  the  High Court  had  specifically directed in Clause (15) in para 248 as well as Clauses (2)  & (4) in para 253 (operative part of the judgment) that the cases of the  persons  in position should be  reconsidered  in accordance  with  the  provisions contained in the L.R. Manual as well as that the District  Government Counsel could not be removed even under existing L.R.  Manual without considering their case for renewal.

To the contra, the argument raised before the High Court is that this  clause is applicable only to that class of persons and not to the private  respondents before the High Courts and appellants herein.

Since there is unanimity of the view that the judgment of the High  Court is required to be implemented in true spirit and substance, we  consider it necessary to issue certain clarifications with regard to the  judgment in question and despite the fact that the State Government  has  chosen  to  withdraw  the  Special  Leave  Petition  against  the  judgment and has taken a policy decision to implement the same. The  directions are:-

(1) In terms of the above referred clauses of the judgment of the  

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High Court,  the  vacancies  which have  already been  filled in  accordance with Section 24 of the Criminal Procedure Code and  certain provisions of the L.R. Manual and unamended provisions  of the Criminal Procedure Code. To be more specific, i.e., the  appointments which have been made in consultation with the  High  Court  and/or  the  District  and  Sessions  Judge  of  the  respective district and who continue to function in the respective  posts shall not be disturbed.

(2) 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 writ petitions in the High Court during the pendency of the  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.

(3)  For  implementation  of  these  directions  the  Secretary,  Department  of  Law and  Justice,  State  Government,  shall  be  personally responsible and should complete the exercise within  the stipulated period to ensure that required number of public  prosecutors are present in the Courts for expeditious disposal of  cases.

The  renewal/reconsideration/appointment  shall  be  done  by  the  concerned authority in the above manner. We would clarify that all the  appointments either directly or by way of renewal /  reconsideration  shall  only be  made in consultation with the High Court  and/or  the  District and Sessions Judges as the case may be. All concerned shall  duly abide,  and  without  default,  with  the  process  of  selection  and  appointment, as afore-stated.”

10. Some of the existing incumbents, whose appointments were not renewed,  

filed Writ Petition Nos.  6069/2012 and 6233/2012 before the High Court.  The  

same were disposed of in terms of order dated 17.7.2012 passed by this Court in  

SLP(C) Nos.4042-4043/2012 and batch matters.

11. In State of Uttar Pradesh v. Ashok Kumar Nigam (2013) 3 SCC 372, a two  

Judge Bench of this Court referred to paragraphs 7.06 and 7.08 of LR Manual and  

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held that order dated 3.4.2008 passed by the State Government refusing to renew  

the appointment of the respondent was vitiated due to non-application of mind. At  

the same time, the two Judge Bench made it clear that the High Court could not  

have directed appointment while regulating the age of the appointees. Paragraphs  

20 and 21 of that judgment are as under:

“20.  The order  dated  3-4-2008,  which we  have reproduced  above,  clearly shows non-application of mind and non-recording of reasons,  which leads only to one conclusion, that the said order was an arbitrary  exercise  of power  by the State.  We cannot find any fault with the  reasoning of the High Court in that behalf. But we do find some merit  in the contention raised on behalf of the appellant State that the High  Court should not have directed appointments while regulating the age,  as has been done by the High Court in operative part of its judgment.  There  is  a  right  of  consideration,  but  none  can  claim  right  to  appointment.  Para  7.06  states  that  renewal  beyond  60  years  shall  depend  upon  continuous  good  work,  sound  integrity  and  physical  fitness of the counsel. These are the considerations which have been  weighed  by  the  competent  authority  in  the  State  Government  to  examine whether renewal/extension beyond 60 years should be granted  or  not.  That  does  not  ipso  facto  means  that  there  is  a  right  to  appointment up to the age of 60 years irrespective of work, conduct  and integrity of the counsel. The rule provides due safeguards as it calls  for the report of the District Judge and the District Officer granting  renewal.

21. Thus, for the above-recorded reasons, while declining to interfere  with the judgment of the High Court, we direct that the Government  shall consider cases of the respondents in these petitions for renewal in  accordance with the procedure prescribed and criteria laid down under  Paras  7.06  to  7.08  of  the  LR Manual.  The  consideration  shall  be  completed as expeditiously as possible and, in any case, not later than  three months from today.”

(emphasis added)

12. In the purported compliance of the directions given by the High Court and  

this Court, the State Government considered the cases of respondent Nos.1 and 2  

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and others for renewal of their appointments as District Government Counsel but  

rejected the same vide orders dated 22.10.2012 and 26.10.2012. Respondent Nos.1  

and 2 challenged those orders in Writ Petition (M/B) No.9127/2012 filed before  

the  High Court.  They also  prayed  for  issue  of  a  mandamus commanding the  

opposite  parties  (the  appellants  herein)  to  allow  them to  continue  as  District  

Government  Counsel  and  renew  the  term  of  their  appointment  as  per  the  

recommendations of District Judges.  Similar writ petitions were filed by others  

whose appointments had not been renewed.

13. On 7.12.2012, the Division Bench of the High Court passed the following  

order:

“We have heard learned counsel for parties and perused the pleadings  of writ petition.

Learned  Advocate  General,  State  of  U.P.  submitted  that  he  will  personally look into the files of all the orders which are impugned in  this Bunch of writ petitions.

According  to  learned  Advocate  General  the  legal  position  as  decipherable from the judgments of Hon'ble the Apex Court in such  cases as the one in hand of the bunch is that there is a duty cast upon  the  State  to  examine  and  assess  the  performance  and  records  of  candidates dispassionately but there is no corresponding right in their  favour  to  claim  appointments  or  renewal  of  appointments.  Thus,  according to him there would be no ambiguity in dealing with these  matters  during  the  course  of  exercise  to  be  undertaken  by  the  Administrative Department.

It would not be out of place to observe that in the order passed earlier,  this Court has only reiterated the directions as given by the Hon'ble  Apex Court.

Besides, the State must also remember that the Special Leave Petition  filed  by  it  against  the  judgment  of  coordinate  Bench  has  been  withdrawn and thus the State has accepted the verdict, which, inter-

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alia,  provides  for the primacy of opinion of learned District  Judge.  None-the-less,  District  Judges  are  also expected not  to  record their  opinions without obtaining opinions of  courts  where  the candidates  have worked as Government pleaders and so should also be in the case  of  District  Magistrates  concerned  in  order  to  provide  independent  views on the basis of materials on record.

At  this  stage,  learned  Advocate  General  prays  for  and  is  granted  adjournment  till  16.01.2013  to  ensure  exercise  in  terms  of  the  judgments and orders of Hon'ble the Apex Court as well as this High  Court before the next date of hearing.

List this matters on 16.01.2013 along with Writ Petition Nos.  9992  (M/B) of 2012, 10134 (M/B) of 2012, 10144 (M/B) of 2012, 10152  (M/B) of 2012, 10153 (M/B) of 2012, 10154 (M/B) of 2012, 10155  (M/B) of 2012, 10156 (M/B) of 2012, 10157 (M/B) of 2012, 10169  (M/B) of 2012, 10178 (M/B) of 2012, 10179 (M/B) of 2012, 10185  (M/B) of 2012, 10188 (M/B) of 2012, 9970 (M/B) of 2012, 10040  (M/B) of 2012, 10054 (M/B) of 2012, 10055 (M/B) of 2012, 10064  (M/B) of 2012, 10069 (M/B) of 2012, 10074 (M/B) of 2012, 10075  (M/B) of 2012, 10077 (M/B) of 2012, 10078 (M/B) of 2012, 10083  (M/B) of 2012, 10085 (M/B) of 2012, 10088 (M/B) of 2012, 10089  (M/B) of 2012, 10106 (M/B) of 2012, 10107 (M/B) of 2012, 10120  (M/B) of 2012, 10127 (M/B) of 2012, 10128 (M/B) of 2012, 10130  (M/B) of 2012, 10133 (M/B) of 2012 and 10999 (M/B) of 2012.

In  the  meantime,  the  Department  of  Law  may  also  complete  the  exercise  by  undertaking  independent  examination  of  records  as  required of it in such cases where independent views of District Judges  and District Magistrates are available, in the light of observations made  hereinabove  in  order  to  expedite  the  process  of  renewal  and  appointment but it shall not issue any fresh appointment letter.”

(reproduced from the appeal paper book)

14. In compliance of the direction contained in the aforesaid order of the High  

Court,  the State Government is said to have scrutinized some records and filed  

status report. On the next date of hearing, i.e., 7.3.2013, the Additional Advocate  

General appearing for the appellants herein informed the High Court that complete  

status report could not be filed due to non-availability of documents. The Division  

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Bench of the High Court accepted her request  for adjournment and posted the  

matter for 20.3.2013. Simultaneously, the appellants were directed to issue orders  

for renewal in the cases where the details of the applicants were available.

15. The appellants  have questioned the High Court’s  order  primarily on the  

ground that the same is contrary to the law laid down by the larger Bench in State  

of U.P.  v. Johri Mal (supra).  According to the appellants,  order passed by this  

Court  in  SLP(C)  Nos.  4042-4043/2012  is  per  incuriam because  the  same  is  

contrary to the ratio of the judgment of the larger Bench. Another contention of the  

appellants  is  that  appointment of  District  Government Counsel  and  Additional  

District Government Counsel and renewal of their term can be made only after  

making  evaluation  of  their  work  and  conduct  keeping  in  view  their  past  

performance and the High Court could not have issued an interim mandamus for  

renewal of the term of the private respondents.

16. Before proceeding further,  we may mention that  in compliance of  the directions  

given  by  this  Court  on  26.8.2013,  2.9.2013  and  5.9.2013,  Shri  S.K.  Pandey,  Principal  

Secretary (Law)/Legal  Remembrancer,  Government  of  Uttar  Pradesh  filed  affidavits  dated  

1.9.2013 and 8.9.2013. For the sake of reference, paragraphs 2 and 3 of the first affidavit   

and paragraph 2 of the second affidavit are extracted below:

“First Affidavit dated 1.9.2013

2.  That  the  present  petition arises  out  of  the  Writ  Petition (Misc.  Bench) No.  9127 of 2012 along with which there are 248 petitions  pending before the Lucknow Bench of the Allahabad High Court and in  the said total 249 Writ Petitions, there are total 443 claimants for their  renewal  for  the  post  of  District  Government  Counsel  /  Additional  District Government Counsel / Assistant District Government Counsel,  

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etc.  for three different categories (Criminal,  Civil and Revenue).  In  addition to the above 443 claimants, after 16.01.2013 further about 85  Writ Petitions have been filed claiming renewals and reappointments  on the basis of earlier appointments and in the said Writ Petitions also  there  are  about  200  claimants  there  by  making  total  about  643  claimant. Contrary to the said claim of renewals of so many candidates  whose report of District Judge are favourable, the number of available  vacancies are only 354. Most of the reports of the Districts Judges are  stating that their work and conduct are good and they have knowledge  of law.  None of  the reports  say any adverse  comment or  anything  which could be  deemed to  be  dereliction of  duty.  There are  many  instances where the candidature for renewal have been recommended  by the District judge with identically worded recommendations even  when  the  record  bears  out  that  the  candidate's  performance  has  remained lacking.

3. That in the first batch of total 443 claimants, 430 writ petitioners are  those who had been appointed at the time when the amendment to L.R.  Manual had taken place on 13.08.2008. There are only 13 petitioners  renewals who had been appointed in terms of the un-amended L.R.  Manual (existing as on today).”

Second Affidavit dated 8.9.2013

“2. It is submitted that the cases of all the eligible persons shall be considered  against  the  available  vacant  posts  strictly  in  consultation  with  the  District  Judge(s) and District Magistrate(s).”

17. Respondent Nos.1 and 2 have filed counter to the first affidavit to controvert  

the statement of the Law Secretary and accused the appellants of trying to mislead  

the Court. They have also relied upon the judgment of this Court in State of Uttar  

Pradesh v. Ashok Kumar Nigam (supra) and pleaded that in view of the favourable  

recommendations made by the District Judges and the District Magistrates,  the  

State Government is obliged to renew their appointments.

18. While  Shri  Harish  N.  Salve,  learned  senior  counsel  appearing  for  the  

appellants argued that the order under challenge should be set aside being contrary  

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to  the  law  laid  down  by  this  Court  in  Johri  Mal’s  case  and  Rakesh  Kumar  

Keshari’s case and the State Government should be allowed to consider the candidature of   

all eligible persons for appointment against the available vacancies in consultation with the  

District Judges and District Magistrates, Shri Aman Lekhi, learned senior counsel appearing  

for the respondent Nos. 1 and 2 argued that this Court should not interfere with the impugned  

order  because  the  direction  given  by  the  High  Court  is  in  consonance  with  order  dated   

6.1.2012 passed by the High Court and the clarifications given by this Court on 17.7.2012.   

Shri Lekhi criticized the affidavits of the Law Secretary and submitted that the officer has tried   

to  mislead  this  Court  on  the  issue  of  number  of  available  vacant  posts.  Learned  senior  

counsel further argued that respondent Nos.1 and 2 and other similarly situated persons are  

entitled to have the term of their appointment renewed because the District Judge and the  

District Magistrate have not found anything adverse qua their conduct and performance.

19. We have given serious thought to the entire matter. About 100 writ petitions  

with prayer similar to those contained in Writ Petition No.9127/2012 are pending  

before the High Court.  The question whether the existing District  Government  

Counsel and Additional District Government Counsel are entitled to renewal of  

their term as of right or the State Government is required to act in consonance with  

paragraph 7.08 of the LR Manual and the judgments of this Court in Johri Mal’s  

case  and  Rakesh  Kumar Keshari’s  case,  is  yet  to  be  decided.  Therefore,  the  

Division Bench of the High Court was not at all justified in issuing an interim  

mandamus for renewal of the appointments of respondent Nos.  1 and 2.  While  

doing so, the High Court ignored the law laid down in Ramesh Chandra Sharma’s  

case, Harpal Singh Chauhan’s case, Johri Mal’s case and Rakesh Kumar Keshari’s  

case as also Ashok Kumar Nigam’s case, that appointment of District Government  

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Counsel and renewal of their term is required to be made in accordance with the  

provisions of LR Manual read with Section 24 Cr.P.C.   

20. While renewing the term of the appointment of the existing incumbents the  

State Government is required to consider their past performance and conduct in the  

light  of  the  recommendations  made  by  the  District  Judges  and  the  District  

Magistrates.  Therefore,  the High Court could not have issued a  mandamus for  

renewal of the term of respondent Nos. 1 and 2 and other similarly situated persons  

and thereby frustrated the provisions of LR Manual and Section 24 Cr.P.C.  

21. In the premise aforesaid, the appeal is allowed and the impugned order is set  

aside. The State Government shall now fill up the existing vacant posts by considering  

the  cases of  all  eligible  persons  strictly  in  accordance  with  the  relevant  provisions  of  LR  

Manual read with Section 24 Cr.P.C. and the judgments of this Court in Johri Mal’s case and  

Rakesh Kumar Keshari’s case. The District Judges and the District Magistrates,  

who are required to be consulted by the State Government, are expected to make  

objective assessment of the work, conduct and performance of the candidates and  

make recommendations keeping in view larger public interest in contradistinction  

to the interest of the particular political party.  

22. 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.

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23. The Registry is directed to send a copy of this order to the Registrar General  

of the Allahabad High Court who shall place the matter before the Chief Justice of  

the High Court. The learned Chief Justice may consider the desirability of posting  

all  the  matters  before  one  Bench  to  facilitate  expeditious  adjudication  of  the  

pending matters.  

     ......………………………..….J.        [G.S. SINGHVI]

New Delhi,                 ...….……..…..………………..J. November 13, 2013.        [C. NAGAPPAN]   

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