PETITIONER: HARPAL SINGH CHAUHAN AND ORS. ETC. Vs. RESPONDENT: STATE OF U.P. DATE OF JUDGMENT15/06/1993 BENCH: SINGH N.P. (J) BENCH: SINGH N.P. (J) KULDIP SINGH (J) CITATION: 1993 AIR 2436 1993 SCR (3) 969 1993 SCC (3) 552 JT 1993 (4) 1 1993 SCALE (3)31 ACT: % Code of Criminal Procedure, 1973-Section 24 read with Paras 7.06, 7.08 of the Legal Remembrancer Manual --Renewal of term of District Government Counsel Procedure under the Manual-- Requirements under S. 24 of the Code. Code of Criminal Procedure, 1973-Section 24-Public Prosecutor or Additional Public Prosecutor-Term of-Extension of renewal- Scope of-Duty of Sessions Judge and District Magistrate- Panel of lawyers--Preparation-Necessity of. Constitution of India, 1950-Article 136-Appeal-Assistant District Government Counsel's names recommended by Sessions Judge for extension of their tenures not recommended by District Magistrate- Rejection of Sessions Judge's recommendation by State-Legality of. Civil Services-Assistant District Government Counsel's names recommended by sessions Judge for extension of their tenures not recommended by District Magistrate-Rejection of Sessions Judge's recommendation by State-Legality of. Code of Criminal Procedure, 1973-Section 24(4)-Consideration of suitability of a person to the post of District Government Counsel by District Magistrate-Judicial review by Courts-Scope of. C.A. Nos. 722 and 723 of 1993. HEADNOTE: On 25.2.91 the appellants except appellant No. 3 were appointed as Assistant District Government Counsel (Criminal) in accordance with the provisions of Section 24 of the Criminal Procedure Code and the Legal Remembrancer Manual. The appellant No.3 was appointed on 13.12.1990. The last date of the tenure of the appellants, except appellant No.3, was 31.12.1991, where as the tenure of appellant No.3 was upto 13.12.1991. Before 970 the expiry of their terms, the District Judge, preparing two lists,'A' and `B' recommended the appellants' names for extension of their tenures. List `A' contained the names of Lawyers (including the appellants), whose work and conduct was approved for their extension, whereas List 'B' contained the remaining names of the lawyers (including appellants in C.A. Nos. 386, 387/ 1993) who were considered as 'average lawyers'. The District Judge requested the District Magistrate to send his recommendation to the State Government. The District Magistrate did not recommend the appellants' names as their reputation, professional work, behaviour and conduct was not found in accordance with public interest. On 28.12.1991 the State Government extended the terms of the appellants till further orders. Later without assigning any reason, the extension recommended by the District Judge was rejected by the State Government. The appellants filed writ petitions in the High Court against the Government's decision. The High Court dismissed their writ applications, against which the present appeals were filed by special leave before this Court. C.A. Nos. 386 & 387 OF 1993. The appellants' names were included in the List 'B' prepared by the District Judge. The State Government rejected the recommendation of the District Judge, without assigning any reason. The writ petitions preferred by them in the High Court were dismissed. Hence these appeals by special leave. As there was a common issue arose in these appeals, same were heard and decided together. The appellants contended that in view of Para 7.06(2) of the Legal Remembrancer Manual the appointment of any legal practitioner as a District Government Counsel did not automatically come to an end. The State submitted that as Section 24(4) of the Code of Criminal Procedure vested power in the District Magistrate to consider the suitability of the person concerned, for appointment, according to his opinion, as such there was not much scope of judicial review by Courts, unless a clear case of malice on the part of the District Magistrate was made out. 971 Allowing the Civil Appeals Nos. 722 and 723 of 1993 and dismissing the Civil Appeal Nos. 386 and 387 of 1993, this Court. HELD:1.1. When sub-section (4) and sub-section (5) of Section 24 of the Code of Criminal Procedure, speak about preparation of a panel, out of which appointments against the posts of Prosecutor or Additional Public Prosecutor have to be made, then the Sessions Judge and the District Magistrate are required to consult and discuss the names of the persons fit to be included in the panel and to include such names in the panel. 1.2.The expressions "panel of names of persons", do not mean that some names are to be suggested by the Sessions Judge and some comments are to be made, in respect of those names by the District Magistrate, without proper consultation and discussion over such names. The statutory mandate ought to have been complied with by the District Magistrate and the Sessions Judge in its true spirit. 1.3.Section 24 of the Code does not speak about the extension or renewal of the terms 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 working as Public Prosecutor or Additional Public Prosecutor, are again appointed by the State Government, for a fresh term. The 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. 1.4.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. Chief Constable of the North Wales Police v. Evans, [1982]3 All E.R. 141, referred to. 1.5.In the facts of the present case, the procedure prescribed by Section 24 of the Code have not been followed by the District Magistrate. There is 972 nothing on the records of the case to show that any panel, as required by sub-section (4) of Section 24, was prepared by the District Magistrate in consul"on with the District & Sessions Judge. The District Magistrate simply made some general comment in respect of the appellants, when the District & Sessions Judge had put them in List 'A' of his recommendation. This shall not amount to either the compliance of sub-section (4) of Section 24 of the Code or Para 7.06(2) of the Manual. It appears there has been no effective or real consultation between the Sessions Judge and the District Magistrate for preparation of the panel, as contemplated by sub-section (4) of Section 24 of the Code. 1.6.The members of the legal profession are required to maintain high standard of legal ethics and dignity of profession. They are not supposed to solicit work or seek mandamus from courts in matters of professional engagements. 1.7.In view of the strong recommendation about the quality of the appellant's professional work, the District Magistrate should have Applied his mind in consultation with the Sessions Judge, in respect of each individual case, instead of making a general and identical comment against all the appellants. 1.8.As the District Magistrate has not performed his statutory duty as enjoined by law, the appeals of the appellants have to allowed. 1.9.The District Magistrate is directed to perform his statutory duty afresh, in accordance with the requirement of Section 24 of the Code read with the relevant paragraphs of Chapter VII of the Manual, which are not inconsistent with Section 24 of the Code, so far the appellants are concerned, if the vacancies are still there. The necessary steps shall be taken preferably within four months from the date of this judgment. The State Government shall thereafter perform its part in accordance with Section 24 and different paragraphs of the Manual which are applicable in the facts and circum- stances of the case. Kumari Shrilekha Vidyarthi v. State of U.P., [1991] 1 SCC 212, referred to. 2.The District & Sessions Judge, who is required to express his opinion ton the merit and the conduct of the persons recommended for appointment or extension of the period as District Government Counsel, has expressed the 973 opinion that appellants (in C. As. Nos. 386-387 of 93) are "average lawyers", and has put them in List'B'. In other words, neither the District & Sessions Judge has recommended the case of the appellants of these appeals for extension nor the District Magistrate. Their case cannot be treated at par with the appellants of the other appeals. In such a situation, no useful purpose will be served by directing the District Magistrate to perform his statutory duty, as required by sub-section (4) of Section 24 of the Code again, even in respect of these appellants. 3.Although power has been vested in a particular authority, in subjective terms still judicial review is permissible. Barium Chemicals Ltd, v. Company Law Board, AIR [1967] SC 295; State of Assam v. Bharat Kala Bhandar Ltd-, AIR [1967] SC 1766; Rohtas Industries Ltd. v. S.D. Agarwal, AIR [1969] SC 707; The Purtabpur Company Ltd. v. Call e Commissioner of Bihar, AIR [1970] SC 1989 and; M.A. Rasheed v. The State of Kerala, AIR [1974] SC 2249, relied on. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 722 and 723
of 1993.
From the Judgment and Order dated 13.11.92 of the Allahabad
High Court in W.P. Nos. 688 & 1246 of 1992.
WITH
CIVIL APPEALS NOS. 386 and 387 of 1993
From the Judgment and Order dated 13.11.92 of the Allahabad
High Court in W. P. Nos. 8 19 and 888 of 1992.
Rajiv Dhawan, P.K. Dey and Rakesh Gosian, Ms. Rani
Jethmalani, (N.P.) for the Appellants in C.A. Nos. 722-
23/93.
R.P. Saxena for the Appellants in C.A. Nos. 386-87/93.
Yogeshwar Prasad and Ms. Rachna Gupta for the Respondent.
The Judgment of the Court was delivered by
974
N.P. SINGH. J The appellants in Civil Appeals Nos. 722 &
723 of 1993 had been appointed as Assistant District
Government Counsel (Criminal) to appear in different
criminal cases, on behalf of the State, in different Courts
in the District of Moradabad. They filed the connected Writ
Applications before the High Court against the decision of
the State Government, refusing to extend their term for a
farther period of three years, which were dismissed by the
High Court.
It appears that the appellants. except appellant No. 3,
Gopal Sharma. had been appointed by Government Order dated
25.2.91. as Assistant District Government Counsel (Criminal)
in the District of Moradabad, in accordance with the
provisions of Section 24 of the Criminal Procedure Code
(hereinafter referred to as “the Code”) and the Legal
Remembrancer Manual (hereinafter referred to as “the
Manual”) against the substantive vacancies. Appellant No.
3, however, had been appointed on 13.12.1990. The last date
of the tenure of the appellants, other than appellant No. 3,
as mentioned in the aforesaid Government Order dated 25.
2.1991 was 31.12.199 1. The tenure of appellant No. 3 was up
to 13.12.199 1. It is not in dispute that before the expiry
of the term aforesaid, the District Judge, Moradabad, by his
letter dated 27.12.1991 recommended the names of appellants
for extension of their terms. The District Judge prepared
two lists i.e. ‘A’ and ‘B’. List ‘A’ contained the name of
those lawyers “whose work and conduct has been approved for
their extension as Government Counsel”, whereas List `B’
contained the names of the remaining Government Counsel, who
in the opinion of the District Judge were “average lawyers”.
The names of the appellants are in List’A’ The District
Judge requested the District Magistrate. Moradabad. to send
his recommendation to the State Government for extension of
the term of tile Government Counsel, mentioned in List’A’.
The District Magistrate. after receipt of the recommendation
of the District Judge aforesaid, by a communication dated
2.1.92, did not recommended the names of the appellants, for
extension of their terms, saying that on the inquiry at his
level, “reputation, professional work, behaviour and conduct
of the above mentioned Government Counsel was not found in
accordance with public interest”. It may be mentioned that
on 28.12.9 1. tile State Government had extended the terms
of the appellants till further orders. Ultimately, without
assigning any reason, the extension recommended by the
District Judge was rejected by the State Government, which
decision is the subject matter of the controversy in the
present appeals.
In the State of U.P., the Manual is an authoritative
compilation of the government orders and instructions for
the conduct of legal affairs of the State Government. Para
1.00 of Chapter VII gives the details of the Law Officers of
the Government which includes the Government Counsel (Civil,
Revenue, Criminal)
975
along with many others like Judicial Secretary and
Legislative Secretary. The Chapter VII of the contains the
procedure in respect of appointment and conditions of
engagements of District Government Counsel. The District
Officer is required it) consider all the applications
received. in consultation with the District Judge and to
submit in order of preference the names of’ the legal
practitioners, along with the opinion of the District Judge
on tile suitability and merit of each candidate to the State
Government giving due wightage to the claim of the existing
incumbents, if any. After the receipt of such
recommendations, the Legal Remembrancer is required is
required to submit the said recommendations with his own
opinion for the orders of the State Government.
In Para 7.06 of the Manual, the procedure regarding the
appointment and renewal has been prescribed
“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 periodic 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 he
unsatisfactory the matter shall be reported to
the Government for orders. If the report in
respect of his work and conduct is satisfac-
tory, he may be furnished with a deed of
engagement in Form No. 1 for a term not
exceeding three years. On his first
engagement a copy of Form No.2 shall he
supplied to him and lie 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 assigning any cause.”
Para 7.08 contains the procedure for renewal after expiry of
the original term:-
“7.08. Renewal of term-(1) At least three
months before the expiry
976
of the term of a District Government Counsel,
the District Officer shall after consulting
tile 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
he 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
therefore shall also he stated by the District
Officer.
(3) While forwarding, his recommendation for
renewal of the term District Government
Counsel-
(i) the District Judge shall give an
estimate of the quality of the Counsel’s work
from the judicial standpoint, keeping, in view
the different aspects of a lawyers 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 Office
r
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
977
Dist Government Counsel.
Note : The renewal beyond 60 years of age shall depend upon
continuous good work, sound integarity and physical fitness
of the Counsel.
It was pointed out on behalf of the appellants, that any
legal practitioner finally selected by the Government may be
appointed as District Government Counsel for one year from
the date of his taking over charge, but in view of Para 7.06
of the Manual at the end of the aforesaid period the
District Magistrate after consulting the District Judge has
to submit a report on his work and conduct to the Legal
Remembrancer in the form prescribed. If the report in
respect of his workand conduct is satisfactory, then such
Counsel shall be furnished with a deed of engagement in form
No. 1 for a term not exceeding three years. Para 7.08 of
the Manual contains the procedure for renewal of the term of
the District Government Counsel after the expiry of original
term. It requires the District Officer at least three months
before the expity of the term of a District Government
Counsel to report to the Legal Rmembrancer after consulting
the District Judge and considering the past record of work
conduct and age of such District Government Counsel. If the
Government agrees with the recommendation it may pass an
Order re-appointing him for a period not exceeding three
years.
The stand of the appellants is that in view of Para
7.06(2), the appointment of any legal practitioner as a
District Governemnt Counsel, does not automatically come to
an end rather it indicates and element of continuity and
that is why Para 7.06(2) requires the District Officer at
the end of period of one year to submit a report after
consulting the District Judge concerned in respect of the
work and conduct of such District Government Counsel to the
Legal Remembrancer in a form prescribed. If the report in
respect of work and conduct is satisfactory then such
District Government Counsel shall be furnished with a deed
of engagement in a form prescribed for a term not exceeding
three years. As such after the period of one year if the
engagement for a further period upto three years is not
given, it amounts to a stigma.
On behalf of the appellants attention of this Court was
drawn to a letter addressed to the District Magistrate by
Dr. Nepal Singh, M. L.C., the District President of the
party then in power recommending the names of other
Government Counsel for renewal/extension of their term. It
was pointed out that in respect of all those persons. The
District Magistrate has recommended for extension. There is
however, no material before us to show that the District
978
Magistrate was influenced by the said letter in any manner.
A part form that the persons so resommended by the District
Magistrate were not impleded as respondents to the Writ
applications. As such we are not inclined to go into this
aspect.
The different paragraphs of the Manual aforesaid were
examined in detail in the case of Kumari Shrilekha Vidyarthi
v. State of U. P. [1991] 1 SCC 212, in connection with an
order dated February 6, 1990 issued by the State of U. P.
terminating the appointments of all Government Counlsel (
Civil Criminal and Revenue) in all the districts of the
State of U.P. with effect from February 28, 1990 and
directing the preparation of fresh panels for making
appointments in places of the existing incumbents. while
quashing such general order it was said:-
Viewed in any manner the impugned circular
dated February 6, 1990 is arbitrary. It
terminates all the appointments of Government
Counsel in the districts of the State of Uttar
Pradesh by an omnibus order even though these
appointments were all individual. No common
reason applicable to all of them justifying
their termination in one stroke on a
reasonable ground has been shown. The
submission on behalf of the State of
UttarPradesh at the hearing that many of them
were likely to be re-appointed is by itself
ample proof of the fact that there was total
non-application of mind to the individual
cases before issuing the general order
terminating all the appointments. This was
done in spite of the clear provisions in the
L. R. manual lying down detailed procedure for
appointment, termination and renewal of tenure
and the requirement to first consider the
existiong incumbent for renewal of his tenure
and to take steps for a fresh appointment in
his place only if the existing incumbent is
notfound suitable in comparison to more
suitable persons available for appointment at
the time of renewal. In the case of existing
appointees a decision has to be first reached
about their non-suitability for renewal before
deciding to take steps for making fresh
appointments to replace them. None of these
steps were taken and no materialhas been
produced to show that any existing incumbent
was found unsuitable for the office on
objective assessment before the decision to
replace all by fresh appointees was taken. The
prescribed procedure laid down in the L.R.
Manual which has to regulate exercise of this
power was tatally igonered.
In the present case it appears to be an admitted position
that appointments of the appellants as assistant District
Government Counsel (Criminal) is governed
978
979
.LM0
by Section 24 of the Code, as well different paragraphs of
Chapter VII of the Manual. It was not disputed on behalf of
the State, that appellants shall be deemed to be Additional
Public Prosecutors within the meaning of Section 24 of the
Code, although in the order of appointment they have been
designated as Assistant District Government Counsel
(Criminal). The procedure prescribed in the Manual can be
observed and followed as supplemental to the provisions of
Section 24 of the Code. Needless to say that, if there is
any conflict, then Section 24 of the Code being statutory
in nature will override the procedure prescribed in the
Manual. The relevant part of Section 24 is as such
“24. Public Prosecutors (1) For every High
Court, the Central Government of the State
shall, after consultation with the High Court,
appoint a Public Prosecutor and may also
appoint one or more Additional Public
Prosecutors, for conducting in such Court, any
prosecution,appeal or other proceedings on
behalf of the Central Government or State
Government, as the case may be.
(2)………………….
(3) For every district, the State Government
shall appoint a Public Prosecutor and may also
appoint one or more Additional Public
Prosecutors for the district:
Provided that the Public Prosecutor or
Additional Public Prosecutor appointed for one
district may he appointed also to be a Public
Prosecutor as the case may be for another
district.
(4)The District Magistrate shall, in
consultation with the Sessions Judge, prepare
a panel of names of persons, who are. in his
opinion, fit to he appointed as Public
Prosecutors or Additional Public Prosecutors
for the district.
(5) No Person shall be appointed by the
State Government as the Public Prosecutor or
Additional Public Prosecutor for the district
unless his name appears in the panel of names
prepared by the District Magistrate under sub-
section (4).”
The Code prescribes the procedure for appointment of Public
Prosecutor and Additional Public Prosecutor, for the High
Court and the District Courts by the State Government. The
framers of the Code, were conscious of the fact, that the
Public Prosecutor and the Additional Public Prosecutor have
an important role,
980
while prosecuting on behalf of the State, accused persons,
who are alleged to have committed one or the other offence.
Because of that, provisions have been made for their
selection in the Code. It is for the Sessions Judge to
assessee the merit and professional conduct of the persons
recommended for such appointments and the District
Magistrate to express his opinion on the suitability of
persons so recommended, from the administrative point of
view. Sub-section (5) of Section 24 provides that no person
shall be appointed by the State Government as the Public
prosecutor or as an Additional Public Prosecutor “unless his
name appears in the panel of names prepared by the District
Magistrate under sub-section (4)”. The aforesaid section
requires an effective and real consultation between the
Sessions Judge and the District Magistrate, about the merit
and suitability of person it) he appointed as Public
Prosecutor or as an Additional Public Prosecutor. That is
why it requires, a panel of names of persons, to be prepared
by the District Magistrate in consultation with the Sessions
Judge. The same is the position so far the Manual is
concerned. It enumerates in detail, how for purpose of
initial appointment extension or renewal, the District Judge
who is also the Session Judge, is to give his estimate of
the quality of the work of the Counsel from the judicial
Standpoint and the District Officer i.e. the District
Magistrate is to report about the suitability, of such
person, from administrative point of view.
On behalf of the State, our attention was drawn to the
expression “in his opinion” occurring in sub-section (4) of
Section 24 of the Code. It was urged that as the Code vests
power in the District Magistrate to consider the suitability
of the person concerned, for appointment, according, to his
opinion, there is not much scope of judicial review by
Courts, unless a clear case of malice on the part of the
District Magistrate is made out. In view of the series of
judgments of this Court in Barium Chemicals Ltd v. Company
Law Board, AIR 1967 SC 295; State of Assam Bhatrai Kala
Bhandar Ltd.AIR 1967 SC 1766, Rohtas Industries Ltd. v. S.D.
Agarwal, AIR 1969 SC 707, The Purtapur Company Ltd. v. Cane
Commissioner of Bihar AIR 1970 SC 1896 and M.A. Rasheed v.
The State of Kerala, AIR 1974 SC 2249, it is almost settled
that, although power has been vested in a particular
authority, in subjective term:, still judicial review is
permissible.
In the present case the District & Session Judge strongly
recommended extension for the appellants, saying that so far
their work and conduct were concerned, the same had been
approved. But the District Magistrate, simply said that on
the inquiry at his level “reputation, professional work,
behaviour and conductor the appellants as government counsel
was not found in accordance with the public interest”. The
quality of the Counsel’ work has to be judged and assessed
981
by the District & Sessions Judge. The District Magistrate
is required to consider the suitability of such person, from
the administrative point of view. According to us, in view
of the strong recommendation about the quality of the
appellants’ professional work, the District Magistrate
should have applied his mind in consultation with the
Sessions Judge. in respect of each individual case. instead
of making a general and identical comment against all the
appellants.
Apart from that the mandate of sub-section (4) of Section 24
is that “the District Magistrate shall, in constitution with
the Session Judge, prepare a panel of names of persons”.
Sub-section (5) of Section 24 prescribes a statutory bar
that no person shall be appointed by the State Government as
the Public Prosecutor or Additional Public Prosecutor for
the district “unless his name appears in the panel of names
prepared by the District Magistrate under sub-section (4)”.
When sub-section (4) and sub-section (5) of Section 24 of
the Code, speak about preparation of a panel, out of which
appointments against the posts of Prosecutor or Additional
Public Prosecutor have to he made. then the Sessions Judge
and the District Magistrate are required to consult and
discuss the names of the persons fit to be included in the
panel and to include such names in the panel. The
expressions “panel of names of persons”, do not mean that
some names are to be suggested by the Sessions Judge and
some comments are to be made, in respect of those names by
the District Magistrate, without proper consultation and
discussion over such names. The statutory mandate ought to
have been complied with by the District Magistrate and the
Sessions Judge in its true spirit. In the facts of the
present case, no such panel appears to have been prepared by
the District Magistrate in terms of sub-section (4) of
Section 24. As Section 24 of the Code does not speak about
extension or renewal of the term of the person so appointed,
the same procedure, as provided under sub-section (4) of
Section 24 of the Code, has to be followed. In the present
case the District Magistrate instead of having an effective
and real consultation with the District & Sessions Judge
simply made some vague and general comments against the
appellants, which cannot be held to he the compliance of the
requirement of subsection (4) of Section 24.
In the case of Kumari Shrilankha Vidyarthi (supra), this
Court was not concerned with the question regarding the
extension/renewal of the terms of the Government Counsel.
The primary question which was examined by this Court in
that case, was as to whether it was open to the State
Government by the impugned circular dated February 6, 1990.
to terminate appointments of all the Government Counsel in
the different districts of the State, by an omnibus order,
even though those appointments were all individual. It was
held that any such exercise of power by the State Government
cannot satisfy the test of Article 14 of the Constitution
982
and as such was unreasonable and arbitrary. In that
connection reference was made to the Manual aforesaid and it
was pointed out that the said Manual has laid down detailed
procedure for appointment, termination and renewal of the
tenure of the District Government Counsel. It was pointed
out, that different paragraphs of the Manual require, first
to consider the existing incumbents for extension and
renewal of their tenure and to take steps for fresh
appointment in their place, if the existing incumbents were
not found suitable in comparison to more suitable persons
available for appointment at the time of the renewal.
As already mentioned above. Section 24 of the Code does not
speak about the extension or renewal of the term (if 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 procedure prescribed in the Manual – to
the extant – it is not in conflict with the provisions of
Section 24. shall he deemed to be supplementing the
statutory provisions. But merely because there is a
provision for extension or renewal of the term, the same
cannot he 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 the Pair treatment by the
appointing authority or that the procedure prescribed in the
Code and in the Manual aforesaid. have 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. It was said in the
case of Chief Constable of the North Wales Plice v.
Evans.(1982) 3 All E.R. 141;-
“The purpose of judicial review is to ensure that the
individual receives fair treatment, and not to
ensure that the authority, after according
Pair treatment. reaches on a matter which it
is authorised or enjoined by law to decide for
itself a conclusion which is correct in the
eyes of the court.”
In the facts of the present case, the procedure prescribed
by Section 24 of the Code have not been followed by the
District Magistrate.There is nothing on the
983
records of the case to show that any panel as required by
sub-section (4) of Section 24 was prepared by the District
Magistrate in consultation with the District & Sessions
Judge. The District Magistrate simply made some general
comment in respect of the appellants. When the District &
Sessions Judge had put them in List ‘A’ of his
recommendation. According, to us, this shall not amount to
either the compliance of ‘sub-section (4) of Section 24 of
the Code or Para 7.06(2) of the Manual. It appears there
has been no effective or real consultation between the
Sessions Judge and the District Magistrate for preparation
of the panel, as contemplated. by sub-section (4) of Section
24 of the Code.
The members of the legal profession are required to maintain
high standard of legal ethics and dignity of profession.
They are not supposed to solicit work or seek mandamus from
courts in matters of professional engagements. We have been
persuaded to interfere in these matters to a limited extent,
as we are satisfied that there is patent infraction of the
statutory provisions of the Code. As we are of the view
that the District Magistrate has not performed his statutory
duty as enjoined by law, the appeals of the appellants have
to be allowed.
In the result, the appeals are allowed. We direct the
District Magistrate, Moradabad, to perform his statutory
duty afresh. in accordance with the requirement of Section
24 of the Code read with the relevant paragraphs of Chapter
VII of the Manual, which are not inconsistent with Section
24 of the Code. so far the appellants are concerned, if the
vacancies are still there. The necessary steps shall be
taken preferably within four months from the date of this
judgment. the State Government shall thereafter perform its
part in accordance with Section 24 and different paragraphs
of the Manual which are applicable in the facts and circum-
stances of the case. We make it clear that we are not
expressing any opinion on the merit of the claim of the
appellants to get extension or appointment against the posts
of Assistant District Government Counsel (Criminal). There
will he no order as to costs.
CIVIL APPEALS NOS. 386 & 387 OF 1993
So far the appellants of these appeals are concerned, their
names were put under List ‘B’ by the District & Sessions
Judge in his recommendation saying that they were “average
lawyers”. Their case stands on a different footing. The
District & Sessions Judge. who is required to express his
opinion on the merit and the conduct of the persons
recommended for appointment or extension of the period
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as District Government Counsel, has expressed the opinion
that appellants are “average lawyers” and has put them in
List B. In other words, neither the District & Sessions
Judge has recommended the case of the appellants of these
appeals for extension nor the District Magistrate. Their
case cannot be treated at par with the appellants of the
other appeals. In such as situation, no useful purpose will
be served by directing the District Magistrate to perform
his statutory duty as required by sub-section (4)of Section
24 of the Code again, even the respect of these appellants.
Accordingly, these appeals are dismissed. there will be no
orders as to costs.
V.P.R, C.A. Nos. 722 and 723/93 allowed.
C.A. Nos. 386 and 387/93 dismissed.
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