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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.      9029      OF 2012 (Arising out of SLP (Civil) Nos. 35279 of 2009)

State of U.P. & Ors. …  Appellants

Versus

Ashok Kumar Nigam … Respondent

WITH

CIVIL APPEAL NO.     9030         OF 2012 [Arising out of SLP(C) No. 24562 of 2010]

CIVIL APPEAL NO.        9031      OF 2012 [Arising out of SLP(C) No. 24563 of 2010]

CIVIL APPEAL NO.    9032          OF 2012 [Arising out of SLP(C) No. 24564 of 2010]

CIVIL APPEAL NO.       9033       OF 2012 [Arising out of SLP(C) No. 35561 of 2010]

CIVIL APPEAL NO.     9034         OF 2012 [Arising out of SLP(C) No. 35562 of 2010]

CIVIL APPEAL NO.        9035      OF 2012 [Arising out of SLP(C) No. 35569 of 2010]

CIVIL APPEAL NO.    9036          OF 2012 [Arising out of SLP(C) No. 35568 of 2010]

CIVIL APPEAL NO.     9037         OF 2012 [Arising out of SLP(C) No. 35567 of 2010]

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CIVIL APPEAL NO.     9038         OF 2012 [Arising out of SLP(C) No. 35566 of 2010]

CIVIL APPEAL NO.        9039      OF 2012 [Arising out of SLP(C) No. 35565 of 2010]

CIVIL APPEAL NO.     9040         OF 2012 [Arising out of SLP(C) No. 9156 of 2011]

CIVIL APPEAL NO.      9041        OF 2012 [Arising out of SLP(C) No. 13788 of 2011]

CIVIL APPEAL NO.        9042      OF 2012 [Arising out of SLP(C) No. 20917 of 2011]

CIVIL APPEAL NO.           9043   OF 2012 [Arising out of SLP(C) No. 20918 of 2011]

CIVIL APPEAL NO.   9044       OF 2012 [Arising out of SLP(C) No. 11261 of 2010]

CIVIL APPEAL NO.    9045       OF 2012 [Arising out of SLP(C) No. 12993 of 2010]

CIVIL APPEAL NO.     9046         OF 2012 [Arising out of SLP(C) No. 18407 of 2011]

J U D G M E N T

Swatanter Kumar J.

1. Leave granted in all the Special Leave Petitions.

2. These appeals are directed against the judgment of the  

High Court of Judicature at Allahabad, Lucknow Bench. Though  

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dated  differently,  the  questions  of  law  involved  in  all  these  

appeals  are  identical  based  upon  somewhat  similar  facts.  

SLP(C) No. 35569 of 2010 was filed against the order dated 24th  

September, 2008, SLP(C) No. 35568 of 2010 was filed against  

the  order  dated  29th September,  2008,  SLP(C)  No.  35565  of  

2010 was filed against the order dated 14th September, 2009,  

SLP(C)  No.  35566  of  2010  against  the  order  dated  18th  

September, 2010, SLP(C) No. 35279 of 2009, SLP(C) No. 24562  

of 2010, SLP(C) No. 24564 of 2010 and SLP(C)  No. 35567 of  

2010 against the order dated 14th October,  2009, SLP(C)  No.  

12993 of 2010, SLP(C) No. 24563 of 2010 and SLP(C) No. 35561  

of 2010 against the order dated 16th November, 2009, SLP(C)  

No. 11261 of 2010 against the order dated 21st January, 2010,  

SLP(C)  No.  35562  of  2010  against  the  order  dated  9th April,  

2010,  SLP(C)  No. 9156 of 2011 against  the  order  dated 19th  

January, 2011, SLP(C) No. 20918 of 2011 and SLP(C) No. 13788  

of 2011 against  the order  dated 28th April,  2011,  SLP(C)  No.  

20917 of  2011 against  the  order  dated  29th April,  2011 and  

SLP(C) No. 18407 of 2011 against the order dated 26th April,  

2011.  

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3. We have taken the case of Ashok Kumar Nigam (supra) i.e.  

Civil  Appeal  @ SLP(C)  No.  35279  of  2009  as  the  lead  case.  

Before we proceed to notice the facts giving rise to the present  

appeal  in that case, it  is necessary for us to notice that  SLP  

(Civil) No. 9156 of 2011 has been directed against an interim  

order  passed  by  the  Division  Bench  of  that  High  Court  in  

Miscellaneous Bench No. 523 of 2003 titled “Pramod Sharma v.  

State of Uttar Pradesh”.  The interim order dated 19.1.2011 had  

directed that no regular appointment shall be made on the post  

Government  Advocate  in  place  of  the  appellant.   Vide  its  

judgment dated 10th February, 2011, the Division Bench of the  

High Court finally disposed of the interim application by staying  

the operation of the orders dated 24th December, 2010 and 28th  

December, 2010 passed by the respondents.  It further directed  

that  the  appellant  be  allowed  to  continue  as  the  District  

Government Counsel (Criminal)  subject to any decision being  

taken  afresh  in  accordance  with  the  directive  issued  by the  

judgment of that Court passed in Writ Petition No.10038(MB) of  

2009.  In other words, the interim order had merged into the  

order of the High Court dated 10th February, 2011 against which  

as of now, no petition has been filed.   Thus, the special leave  

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petition No. 9156 of 2011 has been rendered infructuous and is  

accordingly dismissed as such.

SLP(C) No. 35279 of 2009

4. Mr. Ashok Kumar Nigam, respondent herein was appointed  

as District Government Counsel on 17th September, 2004 vide a  

notification issued by the State Government.   The term of the  

said respondent was renewed on 3rd March, 2006 for a period of  

one year and as such his term came to an end on 5th March,  

2007.   The respondent submitted his application for renewal of  

his term on 19th January, 2007.  The District Judge, Lucknow on  

26th February, 2007 gave his report and the District Magistrate  

also submitted his report on 5th March, 2007 recommending the  

renewal of the term of the respondent.     However, the State  

Government, appellant herein, vide order dated 3rd April, 2008  

refused  his  renewal  which  resulted  in  cancellation  of  

engagement of the said respondent.  The order dated 3rd April,  

2008 can usefully be reproduced at this stage:-

“From Acharya Suresh Babu Deputy Secretary Government of Uttar Pradesh

To

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The District Magistrate Lucknow

Nyay-Anubhag-3-Appointment  Lkw,  dated  3.4.2008

Sub:  Renewal  of  Tenure  of  engagement  of  District Government Counsels at the District  Level

Sir,

With  reference  to  your  Letter  No.  855/JA(2)/Advocate-Renewal/07  dated  5.3.2007, I  have been directed to say that  after  due  consideration,  the  Hon’ble  Governor  had  kindly  ordered  not  to  renew  the  tenure  of  engagement  of  Sh.  Ashok  Kumar  Nigam,  as  District  Government  Counsel (Criminal), Lucknow.

Accordingly, in the aforesaid background, the  engagement  order  of  Sh.  Ashok  Kumar  Nigam,  as  District  Government  Counsel  is  hereby terminated.

Please take necessary action at your end and  forward  your  proposal  from  the  panel  of  Advocates  for  being  engaged  as  District  Government  Counsel  against  the  consequential vacancy.”

5. Aggrieved from the above order, the respondent filed writ  

petition before the High Court of Allahabad, Lucknow Bench.   In  

the writ petition, the stand taken by the respondent was that in  

terms of the rule, the petitioner has a right to continue and in  

any case for consideration of renewal of his term, the impugned  

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order does not state any reasons and, in fact, does not take into  

consideration the recommendations made by the District and  

Sessions  Judge  and  the  District  Magistrate,  who  had  

recommended renewal of the term of the respondent.    The  

High Court after hearing the counsel appearing for the parties,  

vide its  judgment dated 14th October,  2009, allowed the writ  

petition, setting aside the order dated 3rd April, 2008 and even  

granting further relief to the appellant.  The operative part of  

the High Court judgment reads as under:-

“For  the  reasons  stated  above,  the  order  impugned  dated  03.04.2008  is  hereby  set  aside.

We are informed that no person has yet been  appointed  or  engaged  in  place  of  the  petitioner, in view of the interim order passed  by this Court,  we, therefore, further  provide  that  the  petitioner  shall  be  allowed  to  continue to discharge the functions and duties  of  the  District  Government  Counsel,  till  the  consideration  of  the  renewal  of  his  term in  accordance with law.

We may further clarify that the renewal of the  petitioner’s  term  shall  be  considered  in  accordance  with  the  relevant  provisions  of  L.R.  manual  (unamended  para  7.08  as  the  amendments made in L.R. Manual are subject  matter of challenge in W.P. No. 7851 (M/B) of  2008  wherein  the  implementation  of  the  amended provisions stand stayed)  if  he has  not crossed the age of 60 years but if he has  already attained the age of 60 years, but has  

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not yet reached the age of 62 years then his  case will  be  considered for  extension of  his  term upto the age of 62 years and for that  consideration, if any further formalities are to  be  completed  or  some  certificates  are  needed, he shall  be given an opportunity to  furnish  the  same,  so  that  his  case  may  be  considered  in  accordance  with  the  relevant  rules.   Writ petition is allowed.   Cost easy.”

6. Aggrieved from the above judgment of the High Court, the  

State of Uttar Pradesh (appellant herein) has filed the present  

appeal before this Court.   The challenge to the impugned order  

is, inter alia, but primarily on the following grounds:-

A)  In terms of the relevant rule, the State Government has  

discretion  to  terminate  the  term  of  the  District  

Government Counsel (Criminal), and in any case, the term  

of the respondent had come to an end by efflux of time,  

and therefore, the High Court has exceeded its jurisdiction  

in setting aside the order dated 3rd April, 2008.

B) At best, if allowing the writ petition, the High Court could  

set aside the impugned order,  but  could not direct that  

they be retained or continued till the age of 60 or 62 years  

as the case may be.   The respondent would only have a  

right  of  consideration  and  nothing  more,  therefore,  the  

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judgment of the High Court suffers from apparent errors.  

The High Court gave no reasons much less valid reasons  

for setting aside the order dated 3rd April, 2008.

7. Opposed  to  the  above  contentions,  it  is  contended  on  

behalf of the respondents that the order dated 3rd April, 2008  

was a non-speaking order and suffered from the vice of non-

application of mind and was arbitrary and has correctly been  

set aside by the High Court.   Reliance in this regard is placed  

upon the judgment of this Court in the case of Kumari Shrilekha  

Vidyarthi and Others v. State of U.P. & Ors. [(1991) 1 SCC 212].  

Further,  that  the  impugned  order  dated  3rd April,  2008  is  

contrary to the rules in force.  The order of the High Court under  

appeal does not call for any interference.    

8. Before  we  examine  the  merit  or  otherwise  of  the  

contentions, it  will be appropriate for this court to notice the  

relevant rule.   Chapter 7 of the Legal Remembrancer’s Manual  

deals with District Government Counsel.   In terms of Para 7.01,  

the  District  Government  Counsel  are  legal  practitioners  

appointed by the State Government to conduct in any court,  

other than the High Court, such civil, criminal or revenue cases  

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on behalf of the State Government as assigned to them either  

generally or specially.  Para 7.02 deals with the power of the  

government  to  appoint  government  counsels  in  the  districts.  

As per this provision, the government was to ordinarily appoint  

District  Government  Counsel  (Criminal),  District  Government  

Counsel (Civil) and District Government Counsel (Revenue) for  

each district, for which they have to make an application.

9. Under these rules, the appointments are to be made and  

renewal  to  be  considered  upon  the  recommendation  of  the  

District Officer and the District Judge.   The rules even state the  

factors which are to weigh in the mind of the recommending  

authority  while  recommending  or  declining  to  recommend  

renewal of term of the government pleaders.   Paras 7.6 to 7.8  

read as under:-

“7.06. Appointment and renewal – (1) The legal  practitioner finally selected by the Government  may be appointed District Government Counsel  for  one  year  from the  date  of  his  taking  over  charge.

(2) At the end of the aforesaid period, the District  Officer  after  consulting  the  District  Judge  shall  submit a report on his work and conduct to the  legal  Rememberancer  together  with  the  statement of work done in Form no. 9.   Should  his work or conduct be found to be unsatisfactory  the matter shall be reported to the Government  

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for orders.   If the report in respect of his work  and conduct is satisfactory, he may be furnished  with a deed of engagement in Form no. 1 for a  term no  exceeding  three  years.    On  his  first  engagement  a  copy  of  Form  no.  2  shall  be  supplied to him and he shall complete and return  it to the Legal Remembrancer for record.

(3) The appointment of any legal practitioner as  a  District  Government  Counsel  is  only  professional  engagement  terminable  at  will  on  either  side  and  is  not  appointment  to  a  post  under  the  Government.    Accordingly  the  Government reserves the power to terminate the  appointment of any District Government Counsel  at any time without assisting any cause.

7.08. Renewal of term – (1) At least three months  before  the  expiry  of  the  term  of  a  District  Government  Counsel,  the  District  Officer  shall  after  consulting  the  District  Judge  and  considering his past record of work, conduct and  age, report to the Legal Remembrancre, together  with the statement of work done by him in Form  no.  9  whether  in  his  opinion  the  term  of  appointment of such counsel should be renewed  or  not.    A  copy of  the  opinion of  the  District  Judge  should  also  be  sent  along  with  the  recommendations of the District Officer.

(2) Where recommendation for the extension of  the  term  of  a  District  Government  Counsel  is  made  for  a  specified  period  only,  the  reasons  thereof  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,  

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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.”

10. From  the  above  rules,  it  is  clear  that  the  government  

counsel  has  to  be  appointed  and/or  his  term renewed  upon  

recommendation of the District  Judge and the District Officer  

and  in  accordance  with  the  procedure  prescribed  under  the  

above rules.  It is only when the recommendations based upon  

stated  criteria  are  unfavourable  to  the  applicant  in  question  

that the government could decline renewal of the term.   In the  

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present case, we are not concerned with the appointment as  

such.   All the cases in hand are cases of renewal of term.

11. The High Court in its judgment has noticed that the order  

dated 3rd April, 2008 clearly shows that the request for renewal  

has been rejected without considering the recommendation of  

the District Judge and District Magistrate.   The High Court has  

even noticed in  its  judgment  that  in  view of this  fact  it  had  

called for the records and the records produced did not show  

proper consideration by the State Government before refusing  

to grant renewal of the term of the respondent.  The High Court  

also noticed that the Government had taken enblock decision  

that  the  renewal  in  the  cases  of  such  Government  counsel  

whose term have come to an end will not be granted.  It was in  

pursuance to this decision that the government refused to grant  

renewal to the respondent as well.

12. The High Court had examined the records and after being  

satisfied  that  the  record  produced  did  not  exhibit  proper  

application  of  mind  or  due  consideration  as  per  prescribed  

procedure  and  the  action  being  arbitrary,  had  set  aside  the  

order dated 3rd April, 2008.   There is nothing on record placed  

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such view of the High Court suffered from any infirmity.  The  

prescribed procedures under para 7.08 of the Manual requires  

the government to invite to invite opinion of the District Judge  

and District Officer, three months prior to the expiry of the term  

of the District  Government Counsel.  By amendment,  proviso  

was added to para 7.03 to provide that District Magistrate shall  

always be free  to nominate  such  person who may be found  

eligible  but  who  had  not  submitted  particulars  for  being  

appointed as such.  As per the prescribed procedure, the office  

of  Legal  Remembrance  was  expected  to  consider  the  past  

record  of  work  and  conduct  of  the  concerned  District  

Government Counsel and then to send a report together with  

the statement of work done by such applicant.  The High Court  

had  clearly  stated  the  principle  that  where  there  is  conflict  

between  the  recommendation  of  the  District  Judge  and  the  

District Magistrate, primacy shall be given to the report of the  

District Judge.  Thus, in our opinion, the onus is shifted to the  

State  to  show  that  it  had  acted  in  accordance  with  the  

prescribed procedure and its action does not suffer  from the  

vice of discrimination and arbitrariness.

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13. Total  non-application  of  mind  and  the  order  being  

supported  by  no  reason  whatsoever  would  render  the  order  

passed  as  ‘arbitrary’.   Arbitrariness  shall  vitiate  the  

administrative order.   The rules provide a procedure and even  

require the State Government to consider the case for renewal  

of the government counsel whose term is coming to an end.  

The scheme of para 7.06 of the Manual is that appointment of a  

government pleader is to be made for a period of one year and  

at the end of the period, the District Officer in consultation with  

the District Judge is required to submit a report on the work and  

conduct  to  the  legal  remembrancer  together  with  the  work  

done in Form 9.   It is only when his work or conduct is found to  

be unsatisfactory that it is so reported to the government for  

appropriate  orders.   If  the  report  is  satisfactory,  the  rule  

requires that he may be furnished with a deed of engagement  

in  form I,  for  a  term not  exceeding  three  years,  on his  first  

engagement.   In  terms  of  para  7.06  (3),  the  Government  

reserves the power to terminate the appointment of any District  

Government Counsel at any time without assigning any cause.  

Firstly, one has to examine the entire scheme of para 7.06 (3).  

It  cannot be read in isolation.  The right of consideration for  

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renewal for the specified period is a legitimate right vested in  

an  applicant  and  he  can  be  deprived  of  such  right  and  be  

declined  renewal  where  his  work  is  unsatisfactory  and  is  so  

reported  by  the  specified  authorities.    It  is  difficult  to  

comprehend that clause (3) of para 7.06 can be enforced in the  

manner as suggested.   If it is construed, as suggested, that the  

government has an absolute right to terminate the appointment  

at any time without specifying any reason, it will be violative of  

Articles 14 and 16 of the Constitution of India and such rule  

shall be arbitrary, thus not sustainable in law.   In the case of  

Delhi Transport Corporation v. D.T.C. Mazdoor Congress [1991  

Supp. (1) SCC 600] while dealing with Regulation 9, which was  

worded similarly, this Court held as under:-

“202. Thus on a conspectus of the catena of  cases  decided  by  this  Court  the  only  conclusion  that  follows  is  that  Regulation  9(b) which confers powers on the authority  to  terminate  the  services  of  a  permanent  and confirmed employee by issuing a notice  terminating  the  services  or  by  making  payment in lieu of notice without assigning  any reasons in the order and without giving  any opportunity of hearing to the employee  before passing the impugned order is wholly  arbitrary,  uncanalised  and  unrestricted  violating principles of natural justice as well  as Article 14 of the Constitution. It has also  been held consistently by this Court that the  

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government  carries  on  various  trades  and  business activity through the instrumentality  of the State such as Government Company  or  Public  Corporations.  Such  Government  Company or Public Corporation being State  instrumentalities  are  State  within  the  meaning of Article 12 of the Constitution and  as such they are subject to the observance  of fundamental rights embodied in Part III as  well as to conform to the directive principles  in Part IV of the Constitution. In other words  the Service Regulations or Rules framed by  them are to be tested by the touchstone of  Article 14 of Constitution. Furthermore, the  procedure  prescribed  by  their  Rules  or  Regulations  must  be  reasonable,  fair  and  just  and  not  arbitrary,  fanciful  and  unjust.  Regulation  9(b),  therefore,  confers  unbridled,  uncanalised and arbitrary power  on the authority to terminate the services of  a  permanent  employee  without  recording  any reasons and without conforming to the  principles  of  natural  justice.  There  is  no  guideline in the Regulations or in the Act, as  to when or in which cases and circumstances  this power of termination by giving notice or  pay in lieu of notice can be exercised. It is  now  well  settled  that  the  ‘audi  alteram  partem’ rule which in essence, enforces the  equality  clause  in  Article  14  of  the  Constitution is applicable not only to quasi- judicial  orders but  to  administrative orders  affecting  prejudicially  the  party-in-question  unless the application of the rule has been  expressly excluded by the Act or Regulation  or Rule which is not the case here. Rules of  natural  justice  do  not  supplant  but  supplement  the  Rules  and  Regulations.  Moreover, the Rule of Law which permeates  our Constitution demands that it has to be  observed  both  substantially  and  procedurally.  Considering  from  all  aspects  

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Regulation  9(b)  is  illegal  and  void  as  it  is  arbitrary,  discriminatory  and  without  any  guidelines for exercise of the power. Rule of  law posits that the power is to be exercised  in  a  manner  which  is  just,  fair  and  reasonable  and  not  in  an  unreasonable,  capricious or arbitrary manner leaving room  for discrimination. Regulation 9(b) does not  expressly  exclude  the  application  of  the  ‘audi alteram partem’ rule and as such the  order  of  termination  of  service  of  a  permanent employee cannot be passed by  simply  issuing  a  month's  notice  under  Regulation 9(b) or pay in lieu thereof without  recording  any  reason  in  the  order  and  without giving any hearing to the employee  to controvert the allegation on the basis of  which the purported order is made.

203. It  will  be  profitable  to  refer  in  this  connection the observations of this Court in  the case of  Union of India v.  Tulsiram Patel  where the  constitutionality  of  provisions  of  Article 311 particularly the second Proviso to  clause  (2)  of  the  said  article  came  up  for  consideration.  This  Court  referred  to  the  findings  in  Roshan Lal  Tandon v.  Union of  India wherein  it  was  held  that  though  the  origin of a government service is contractual  yet  when  once  appointed  to  his  post  or  office,  the  government  servant  acquires  a  status and his rights and obligations are no  longer  determined  by  the  consent  of  both  the parties, but by statute or statutory rules  which  may  be  framed  and  altered  unilaterally  by  the  government.  In  other  words,  the  legal  position  of  a  government  servant  is  more  one  of  status  than  of  contract.  The  hall-mark  of  status  is  the  attachment to a legal relationship of rights  and duties imposed by the public  law and  not by mere agreement of the parties. It has  

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been  observed  that  Article  14  does  not  govern  or  control  Article  311.  The  Constitution must be read as a whole. Article  311(2)  embodies  the  principles  of  natural  justice including audi  alteram partem rule.  Once  the  application  of  clause  (2)  is  expressly excluded by the Constitution itself,  there  can  be  no  question  of  making  applicable  what  has  been  so  excluded  of  seeking  recourse  to  Article  14  of  the  Constitution.”

14. Thus,  in  our  opinion  it  was  not  permissible  for  the  

government to take recourse to Para 7.06 (3) in the manner in  

which it has done and in any case, the said rule can hardly be  

sustained in law.    

15. The order dated 3rd April, 2008 is even liable to be quashed  

on another ground, that it is a non-speaking order also suffering  

from the vice of non-application of mind.  As already discussed,  

the  government  has  taken  an  enblock decision,  without  

recording  any  reason,  not  to  renew the  term  of  any  of  the  

government  counsel.  That  itself  shows  that  there  is  no  

application of mind.   In the case of  Kumari Shrilekha (supra),  

this Court expressed the opinion that it would be alien to the  

Constitutional Scheme to accept the argument of exclusion of  

Article 14 in  contractual  matters.     The arbitrary  act  of  the  

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State  cannot  be  excluded  from the  ambit  of  judicial  review  

merely  on  the  ground  that  it  is  a  contractual  matter.  The  

expression ‘At any time without assigning any cause’, can be  

divided  into  two  portions,  one  “at  any  time”,  which  merely  

means  the  termination  may  be  made  even  during  the  

subsistence of the term of appointment and second, “without  

assigning any cause” which means without communicating any  

cause  to  the  appointee  whose  appointment  is  terminated.  

However, “without assigning any cause” is not to be equated  

with “without existence of any cause”.    

16. Further, this Court in the case of Assistant Commissioner,  

Commercial  Tax Department,  Works Contract  and Leasing v.   

Shukla and Brothers  [(2010) 4 SCC 785], impressed upon the  

need for recording of appropriate reasons in orders and held as  

under:-

“11. The Supreme Court in  S.N. Mukherjee v.  Union of India while referring to the practice  adopted and insistence placed by the courts in  United States, emphasised the importance of  recording  of  reasons  for  decisions  by  the  administrative authorities and tribunals. It said  “administrative process will best be vindicated  by clarity in its exercise”. To enable the courts  to exercise the power of review in consonance  with  settled  principles,  the  authorities  are  advised of the considerations underlining the  

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action under review. This Court with approval  stated: (SCC p. 602, para 11)

‘11. … ‘the orderly functioning of the  process  of  review  requires  that  the  grounds  upon  which  the  administrative  agency  acted  be  clearly  disclosed  and  adequately sustained’.’

12. In exercise of the power of judicial review,  the  concept  of  reasoned  orders/actions  has  been enforced equally by the foreign courts as  by  the  courts  in  India.  The  administrative  authority  and  tribunals  are  obliged  to  give  reasons,  absence  whereof  could  render  the  order  liable  to judicial  chastisement.  Thus, it  will not be far from an absolute principle of law  that the courts should record reasons for their  conclusions to enable the appellate or higher  courts  to  exercise  their  jurisdiction  appropriately and in accordance with law. It is  the reasoning alone, that can enable a higher  or  an  appellate  court  to  appreciate  the  controversy in issue in its correct perspective  and to hold whether the reasoning recorded by  the  court  whose  order  is  impugned,  is  sustainable in law and whether it has adopted  the  correct  legal  approach.  To  subserve  the  purpose of justice delivery system, therefore,  it  is  essential  that  the  courts  should  record  reasons  for  their  conclusions,  whether  disposing  of  the  case  at  admission stage  or  after regular hearing.”

17. The order dated 3rd April, 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  

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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  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 upto 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.

18. Thus, for the above-recorded reasons, while declining to  

interfere in 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  

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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.

19. Subject  to  the  above  observations,  all  the  appeals  are  

dismissed without any order as to costs.

.………...….…………......................J.                                      (Swatanter Kumar)

…..…………..................................J.                  (Sudhansu Jyoti Mukhopadhaya)

New Delhi, December 13, 2012  

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