REPORTABLE THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.      3935   OF 2011 (Arising out of S.L.P. (Civil) No. 11888 OF 2006)

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

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

J U D G M E N T

J.M. Panchal, J.

1. Leave granted.

2. This  appeal   by  Special  Leave  is  directed  against  

Judgment  dated  11.07.2005  rendered  by  the  Division  

Bench of High Court of Judicature at Allahabad in Civil  

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

dated 07.09.2004 of the Principal Secretary to the Chief  

Minister, Uttar Pradesh directing the District Magistrate  

to submit another panel/list for appointment to the two  

posts  of  the  Assistant  District  Government  Counsel  

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

aside  and  District  Magistrate,  Ghazipur  is  directed  to  

consult  the  District  Judge  and  thereafter  to  furnish  

better particulars in respect of 10 persons whose names  

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

with the consultation of the District Judge, whereas the  

State  Government  is  directed  not  to  consider  revised  

panel  unless  the  panel  submitted  by  the  District  

Magistrate  in  consultation  with  the  District  Judge  is  

rejected on some disclosed grounds.  

3. Backgrounds  facts  sans  unnecessary  details  are  as  

under:-   

The respondents nos. 1 and 2 were appointed on contract  

basis,  to  the  vacant  posts  of  Assistant  District  Government  

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

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

appointment of the respondents were up to 10.10.2002, the  

District  Judge,  Ghazipur after being satisfied with the work  

and  conduct  of  the  respondents  had  recommended  to  the  

District Magistrate, Ghazipur to get extended their terms by  

communication dated 31.07.2002.   The District  Magistrate,  

Ghazipur  had  recommended  to  the  State  Government  to  

extend  the  terms  of  the  respondents  vide  communication  

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

on which the respondents were working were advertised by the  

then District Magistrate, Ghazipur.   In pursuance of the said  

advertisement,  the  respondents  also  applied  for  the  post  in  

question.   Their  applications were forwarded by the District  

Judge, Ghazipur to the then District Magistrate along with his  

Report.   However,  no  action  whatsoever  was  taken  by  the  

appellants either for renewing the terms of the respondents on  

the  recommendation  dated  31-07-2002  of  the  District  

Magistrate  or  for  appointing  them on the  post  of  Assistant  

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

advertisement.  Again by advertisement dated 16.01.2004 the  

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District  Magistrate,  Ghazipur  had  advertised  the  post  of  

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

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

(Criminal)  along  with  other  candidates.   Pursuant  to  the  

advertisement  dated  16-01-2004,  applications  from  29  

candidates were received.  From the record it is evident that  

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

by the District Magistrate to the District Judge, Ghazipur for  

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

to  those  two  letters,  the  District  Judge,  Ghazipur  by  

communication  dated  07-04-2004  informed  the  District  

Magistrate that after obtaining opinion of the other Judicial  

Officers two panels of  candidates,  each containing 5 names  

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

Magistrate had suggested to the District Judge to change/alter  

the  two  panels  but  District  Judge  had vide  communication  

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

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

panels  which  were  prepared  after  taking  much  pains.  

However, by the said communication, the District Judge also  

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mentioned that the work, conduct and legal knowledge of the  

remaining  candidates  were  satisfactory.   Thereupon,  the  

District  Magistrate,  Ghazipur  addressed  a  communication  

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

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

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

received regarding which approval of the District Judge was  

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

letter that the District Judge, Ghazipur had mentioned that  

the work, conduct and legal knowledge of all the candidates  

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

District  Judge,  Ghazipur  expressed  in  respect  of  29  

candidates,  he  was  forwarding  necessary  data  of  29  

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

Magistrate  had  requested  the  Special  Secretary  to  take  

necessary action of making appointments to the two posts of  

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

made  by  the  District  Magistrate  to  make  appointments  of  

suitable  candidates  whose  names  were  mentioned  in  the  

panel, the Special Secretary and Upper Legal Remembrancer,  

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

09-2004  directed  the  District  Magistrate  to  submit  another  

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

The District Magistrate by his letter dated 14.02.2005 declined  

to submit  another  list  stating that  a panel  list  had already  

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

14.02.2005  the  Special  Secretary  and  Upper  Legal  

Remembrancer returned the first panel list sent by the District  

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

directed  the  District  Magistrate,  Ghazipur  to  advertise  the  

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

dated 18.03.2005.  According to the respondents there was no  

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

view of the recommendation made by the District Magistrate  

on 01-05-2004.   

4. Pursuant to the direction contained in the letter dated  

18.03.2005,  the  District  Magistrate  again  re-advertised  the  

aforesaid  posts  vide  advertisement  dated  01.04.2005.   The  

respondents were of the view that action of the appellants in  

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not  considering  the  recommendations  made  by  the  District  

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

advertisement dated 16.01.2004 and returning the same and  

further compelling the District Magistrate to re-advertise the  

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

Therefore,  they approached the High Court of Judicature at  

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

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

18.03.2005 issued by the Special Secretary and Upper Legal  

Remembrancer  Government  of  Uttar  Pradesh,  Lucknow  by  

which the District Magistrate was directed to re-advertise the  

posts as well as advertisment dated 01.04.2005 issued by the  

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

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

appellants  to  consider  the  recommendations  of  the  District  

Magistrate made on 01.05.2004 with which a panel list was  

sent  which  included  the  names  of  the  respondents  for  

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

respondents had also prayed to direct the appellants not to  

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

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the Judgeship of District Ghazipur.

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

contested the claim made by the respondents.

6. The  Division  Bench  which  heard  the  Writ  Petition  had  

perused original  records.   On perusal  of  original  records,  

the High Court found that two panels had been submitted  

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

authorities  had  considered  it  proper  to  seek  revised  

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

Secretary to the Chief Minister.  Having  noticed this, the  

High Court took into consideration, the submission made  

by the learned counsel for the respondents that instead of  

sending  the  new  names,  it  would  be  desirable  that  in  

respect  of  those  ten  candidates,  whose  names  had  been  

included in the aforesaid two panels, better particulars were  

sent  to the  State  Government and the State  Government  

was asked to decide the two names after considering better  

particulars.

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The abovestated submission found favour with the High  

Court  and  the  High  Court  has  set  aside  order  dated  

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

District Magistrate in consultation with the District Judge is  

rejected by the State Authorities on some disclosed grounds, it  

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

constitute the revised panel.  By the impugned Judgment, the  

High  Court  while  allowing  the  Writ  Petition  filed  by  the  

respondents  has  directed  the  District  Magistrate,  Ghazipur  

after  consultation  with  District  Judge  to  furnish  better  

particulars  in  respect  of  only  those  ten  candidates  whose  

names  were  included  in  the  two  panels  whereas  the  

Government  is  directed  to  make appointments  therefrom in  

accordance with law, giving rise to the present appeal.

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

length and considered the documents forming part of the  

appeal.

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

State  Government  to  engage,  disengage  and  renew  the  

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terms of its Counsel and Law Officers in keeping with the  

need  to  best  safeguard  the  public  interest,  monetary  

consideration, suitability of the incumbent and the interest  

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

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

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

Uttar Pradesh since last several decades, in matters relating  

to  the  engagement,  disengagement  and  renewal  of  

Government  Counsel  and  Law  Officers  for  the  State  

Government.   The  specific  issue  raised  in  the  appeal  

involves  the  question  as  to  whether  a  legally  enforceable  

right  to  claim  renewal  of  appointment  to  the  post  of  

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

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

observed earlier the High Court has regarded the right to  

renewal  of  appointment  as  a  legally  enforceable  one  and  

therefore has chosen to interfere with the decision of the  

State Government seeking to fill the post by direct selection  

instead of  renewing the terms of the respondents as was  

claimed by them in the Writ Petition.

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9. Before considering the question mentioned above, it would  

be  relevant  to  reproduce  some  of  the  provisions  of  the  

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

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

“7.06 Appointment and renewal

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

7.07  Renewal of term    

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

(2) Where  recommendation  for  the  extension  of  the  term  of  a  District  Government Counsel is made for a specified  

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period only, the reasons therefore shall also  be stated by the District Officer.

(3) While  forwarding  his  recommendation  for  renewal  of  the  term  of  a  District  Government Counsel-

(i) The  District  Judge  shall  give  an  estimate of the quality of the counsel’s  work  from  the  judicial  stand  point,  keeping in view the different aspects of a  lawyer’s  capacity  as  it  is  manifested  before  him  in  conducting  State  cases,  and specially his professional conduct.  

(ii) The District Officer shall give his report  about  the  suitability  of  the  District  Government  Counsel  from  the  administrative point of view, his public  reputation  in  general,  his  character,  integrity and professional conduct.

(4) If  the  Government  agrees  with  the  recommendations  of  the  District  Officer  for  the  renewal  of  the  term of  the  Government  Counsel, it may pass orders for re-appointing  him for a period not exceeding three years.

(5) If  the  Government  decides  not  to  re- appoint  a  Government  Counsel,  the  Legal  Remembrancer  may  call  upon  the  District  Officer to forward fresh recommendations in  the manner laid down in para 7.03.

(6) The  procedure  prescribed  in  this  para  shall  be  followed  on  the  expiry  of  every  successive period of renewed appointment of  a District Government Counsel.

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21.07. The appointment of Public Prosecutor or  Additional Public Prosecutor shall  be made for a  period  of  three  years  but  the  State  Government  may  terminate  such  appointment  at  any  time  without notice and without assigning any reasons.  The State  Government may extend the period of  appointment  from  time  to  time,  and  such  extension of  term shall  not  be treated as a new  appointment.”  

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

emerging  from  the  reply  affidavit  filed  by  the  appellants  

before the High Court.  The reply  inter alia mentions that  

though the District Magistrate had recommended renewal of  

tenure  of  the  respondents,  he  had furnished  information  

regarding  the  work  done  by  the  respondents  in  Form  4  

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

Rakesh Kumar Keshari had appeared in 25 cases in all and  

that  in  all  those  25  cases  the  accused  were  acquitted,  

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

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

were  acquitted.   The  reply  stated  that  the  percentage  of  

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

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

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therefore when the matter of renewal of their  tenure was  

considered  by  the  Government,  the  Government  had  

decided  not  to  extend  the  terms  of  those  Government  

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

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

respondents  were  not  extended  and  after  expiry  of  their  

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

was  further  mentioned  in  the  reply  that  on  so  many  

occasions the respondents had approached the Government  

for  extension  of  their  terms  and  many  recommendations  

were  forwarded  to  the  Government  but  since  the  

performance  of  the  respondents  was  not  found  to  be  

satisfactory, a decision was taken not to renew their terms  

and  to  issue  advertisement  for  selection  of  better  

candidates.

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

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

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

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

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

Law Officers in keeping with the need to best safeguard the  

public interest and monetary considerations, suitability of the  

incumbent and the interest of the Government as the client,  

will have to be upheld.     

12. This question has been considered by a three Judge  

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

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

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

Meerut on 07.01.1993.  His term was renewed on 12.03.1996  

and  he  was  again  appointed  in  the  same  capacity  on  

17.09.1997  for  one  year.   However,  subsequent  thereto,  

despite  his  request  his  term  was  not  renewed  and  on  

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

The vacancy was, thereafter, advertised.  The respondents had  

thereupon filed Writ Petition before the Allahabad High Court  

challenging order dated 18.09.1998 on the ground that as the  

District  Magistrate  and  the  District  Judge  had  found  his  

conduct  and  work  satisfactory  and  had  recommended  for  

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

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

no good or cogent reason for rejecting the recommendation of  

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

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

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

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

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

Justice  of  India  which  has  primacy  in  the  matter  of  

recommendations for appointment to the Supreme Court, has  

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

India and the four senior most puisne Judges of the Supreme  

Court,  the  High Court  had further  opined  that  the  District  

Judge should not make the recommendation alone but should  

constitute the 5 Member Collegium headed by himself for that  

purpose.   Although  the  State  had  pointed  out  to  the  High  

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

District Judge or the District Magistrate, the High Court had  

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

be considered afresh by the Collegium.  The State had then  

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filed appeals before this Court.   The State Government had  

contended  before  this  Court  that  the  High  Court  had  

proceeded  on  wrong  premise  that  the  recommendation  for  

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

been  made  by  the  District  Magistrate  and  since  the  

appointment  of  Public  Prosecutor  was  governed  by  the  

provisions of the Criminal Procedure Code and renewal thereof  

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

committed  a  manifest  error  in  directing  the  Constitution  of  

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

that  the  professional  engagement  of  a  lawyer  could  not  be  

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

relationship of client and a lawyer between the State and the  

Public  Prosecutor.   On  behalf  of  the  respondent  it  was  

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

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

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

to  be  arbitrary.   It  was  also  contended  that  the  Public  

Prosecutors  were  looking  after  the  prosecution  work  and  

therefore the office held by them was public in nature.

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

held that for  a public  law remedy enforceable  under Article  

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

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

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

or authority imbued with public law element.  This Court has  

further held that the question is required to be determined in  

each  case  having  regard  to  the  nature  of  and  extent  of  

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

judicial review is not intended to assume a supervisory role or  

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

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

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

into the areas exclusively reserved by the Constitution to the  

other organs of the State and has further cautioned that the  

Court shall not ordinarily interfere with a policy decision of the  

State.    The Court also held that the decisions and actions  

which do not have adjudicative disposition would not strictly  

fall for consideration before a judicial review court.  According  

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

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

appeal  over  the  decisions  of  administrative  bodies  (ii)  A  

petition  for  judicial  review  would  lie  only  on  certain  well-  

defined  grounds  (iii)  An  order  passed  by  an  administrative  

authority  exercising  discretion  vested  in  it,  cannot  be  

interfered in judicial review unless it is shown that exercise of  

discretion  itself  was  perverse  or  illegal  (iv)  A  mere  wrong  

decision without anything more is not enough to attract the  

power  of  judicial  review  (v)  The  supervisory  jurisdiction  

conferred  on a Court  is  limited  to  seeing  that  the  Tribunal  

functions  within  the  limits  of  its  authority  and  that  its  

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

Court shall not ordinarily interfere with a policy decision of the  

State.

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

specifically held that appointment of a Public Prosecutor or a  

District Counsel would be professional in nature.  This Court  

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

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respondent therein that the holder of the office of the Public  

Prosecutor does not hold a civil post and thereafter has held  

that  by  holding  a  post  of  District  Counsel  or  the  Public  

Prosecutor  no  status  is  conferred  on  the  incumbent.   This  

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

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

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

Court would normally not interfere with the decision.  What is  

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

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

professional  engagement,  the  Courts  are  normally  chary  to  

overturn any decision unless an exceptional case is made out.  

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

satisfied  with  the  performance  of  its  Counsel  or  not  is  

primarily  a  matter  between  it  and  the  Counsel  and  the  

extension  of  tenure  of  Public  Prosecutor  or  the  District  

Counsel  should  not  be  compared  with  the  right  of  renewal  

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

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

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

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in  not  renewing  the  tenure  can  be  subjected  to  judicial  

scrutiny  inter  alia   only  on  the  ground that  the  same was  

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

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

impelled  the  State  not  to  renew  the  tenure  of  the  Public  

Prosecutor or a District Counsel and the Jurisdiction of the  

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

of “Wednesburry unreasonableness”.  This Court further held  

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

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

Public Prosecutor is not only required to show his professional  

competence  but  is  also  required  to  discharge  certain  

administrative functions, it is held that the respondent therein  

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

therefore  action  on  the  part  of  the  State  was  not  wholly  

without jurisdiction requiring interference by the High Court  

in exercise of its power of judicial review while setting aside  

the direction given by the  High Court  to constitute the  five  

member  Collegium  headed  by  the  District  Judge  to  make  

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

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

concerned  that  the  appointment  of  District  Government  

Counsel cannot be equated with the appointments of the High  

Court and Supreme Court Judges and a distinction must be  

made between professional engagement and a holder of high  

public office.  This Court has explained that various doctrines  

and  the  provisions  of  the  Constitution  which  impelled  the  

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

to give meaning of ‘Consultation’ as ‘Concurrence’ and wherein  

the Chief Justice of India will have a primacy, cannot be held  

to  be  applicable  in  the  matter  of  consultation  between  the  

District Magistrate and the District Judge for the purpose of  

preparation of a panel of the District Government Counsel.

15. Applying  the  principles  of  law  laid  down  by  this  

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

decision  of  the  State  Government  not  to  accept  the  

recommendation made by the District  Magistrate  cannot  be  

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

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

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the representatives of the State.  They represent the interest of  

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

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

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

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

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

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

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

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

and departure of the principles of law.

16. This position is again made clear in an unreported  

decision of this Court dated November 11, 2010 rendered in  

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

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

the respondent  Satyavrat Singh for renewal of the extension  

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

respondent had challenged the same in the Writ Petition.  The  

Allahabad  High  Court  had  quashed  the  order  03.06.2002  

refusing  renewal  of  the  term  of  the  respondent  as  District  

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Government  Counsel  (Criminal)  and  had  directed  the  State  

Government  to  renew  the  term  of  the  respondent  as  

Government Counsel.  While allowing the appeal filed by the  

State Government this Court has held as under:-

“It is difficult to discern as to how the High Court  has upheld the unstatable proposition advanced by  the  respondent  for  extension  of  his  term  as  Government Counsel.  We wish to say no more in  this matter since the subject matter that arises for  our  consideration  is  squarely  covered  by  the  decision of this Court in State of U.P. and another  Vs. Johri Mal 2004 (4) SCC 714.  This Court took  the  view  that  in  the  matter  of  engagement  of  a  District  Government  Counsel,  a  concept  of  public  office  does  not  come  into  play.   The  choice  of  a  counsel is for the Government and none can claim a  right  to  be  a  counsel.   There  is  no  right  for  appointment of a Government Counsel.

The  High  Court  has  committed  a  grave  error  in  renewing  the  appointment  of  the  respondent  as  Government Counsel.

Needless to state that the High Court in exercise of  its jurisdiction under Article 226 of the Constitution  of  India  cannot  compel  the  State  to  utilize  the  services of an advocate irrespective of its choice.  It  is for the State to select its own counsel.

The impugned order of the High Court is set aside.  The appeal is accordingly, allowed.”

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

Petition under Article 226 of the Constitution for compelling  

the  appellants  to  utilize  their  services  as  Advocates  

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

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

respondents  in  handling/conducting  criminal  cases,  this  

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

error in giving direction to the District Magistrate to forward  

better  particulars  of  10  candidates  whose  names  were  

included  in  the  two  panels  prepared  pursuant   to  

advertisement  dated  16.01.2004  and  in  setting  aside  order  

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

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

another  panel/list  for  appointment  to  the  two  posts  of  

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

18. The  directions  given  by  the  High  Court  in  the  

impugned Judgment run contrary to the well-settled principles  

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

deserves to be allowed.

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19. For the foregoing reasons the appeal succeeds.  The  

Judgment dated 11.07.2005 rendered by the Division Bench of  

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

of 2005 is set aside.  The appeal accordingly stands disposed  

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

cost.  

............................J.  [J.M. Panchal]

............................J.  [H.L.Gokhale]

New Delhi; May 04, 2011.

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