JUDGMENT
S.H.A. Raza, J.
1. The fate of this writ petition hinges on the upright on the following questions :
1. Whether the duties of the public prosecutor/Government Advocate are statutory in nature? If so, its effect?
2. Whether the public prosecutor/Government Advocate is a public servant holding a civil post and cannot be removed without affording him a reasonable opportunity as contemplated under the provisions contained in Article 311 of the Constitution or the principles of natural justice?
3. Whether before appointing a public prosecutor/Government Advocate, consultation with the High Court is necessary, in view of the undertaking given by the Advocate General and the practices or conventions?
4. Whether a tenure appointment can be cut short by removing the appointee without giving him an opportunity to show cause?
5. Whether a public prosecutor/Government Advocate appointed under a spoils system and can be removed by the spoils system and can be removed by the sweet discretion of the State and such a removal cannot be subjected to judicial review?
2. Before delving into the questions involved in this writ petition it would be necessary to look into the factual matrix as set out in the writ petition.
3. On 6-8-1993 the petitioner was appointed as an Additional Public. Prosecutor, after consultation with the High Court for a term up to 31-8-1994. On completion of that period, the term of the petitioner was extended for further three years. At the relevant time one Mr. Ravindra Singh, Advocate, was holding the office of the public prosecutor Mr. Ravindra Singh resigned somewhere in the month of June 1995. In consequence thereof the petitioner was entrusted with the duties of the Public Prosecutor and continued to discharge the same till his regular appointment. The State Government recommended the name of the petitioner to the High Court for prior consultation under Section 24 of the Code of Criminal Procedure, as existed prior to the deletion of the words “after consultation with the High Court” by Act No. XVIII of 1991. The High Court accorded its approval and thereafter on 1 -1-1996 the State Government appointed the petitioner as a Public Prosecutor at Allahabad for a fixed term of three years.
4. ft has been asserted by the petitioner that no charge or complaint against his performance ever existed, and four successive Chief Standing Counsel as well as Legal Remembrancers of the Government found the work of the petitioner as satisfactory. The petitioner appeared before important Benches in the High Court and received commendations from the Benches.
5. On 6-11-1997 the State Government removed eight Law Officers including the petitioner by means of an order simpliciter. On the same date respondent. No. 3 was appointed by the State Government as a Public Prosecutor in place of the petitioner both the orders have been assailed in this writ petition.
6. Drastic amendments were carried out in the Code of Criminal Procedure in the year 1973. Under Section 2(u) of the amended Code of Criminal Procedure “Public Prosecutor” was defined, and under Section 34 of the Code of Criminal Procedure the procedure for appointment was prescribed by means of which the Public Prosecutor can be appointed under consultation with the High Court. The duties of the Public Prosecutor are somewhat statutory in nature which is evident from various sections of the Code of Criminal Procedure as well as N.D.P.S. Act and Terrorism and Destructive Activities (Prevention) Act. The Public Prosecutor is paid Rs. 1975/- as retainership besides Rs. 500/- per day as fee.
7. In Mahadeo v. Shantibhai (1969) 2 SCR 422 Hon’ble Supreme Court held that a lawyer engaged by the Railway Administration during the continuance of engagement was holding an “office of profit”. In Smt. Kama Kathuria v. Manak Chand Surana AIR 1970 SC 694, the Constitutional Bench of Hon’ble Court (per Majority Hidayatullah, C.J., and Mitter, J. contra), it was observed that Kathuria (An advocate appointed as Government Pleader to assist the Government) held an office of profit under the State. Government, but the disqualification (to contest election) stood removed by the retrospective operation of the Act. In Mundrika Prasad Singh v. State of Bihar (1979) 4 SCC 701 : AIR 1979 SC 1871 the nature of the appointment of the Government Pleaders was held by the Hon’ble Supreme Court as defined in Section 2(7) of the Code of Civil Procedure, 1908 as a Public office. Hon’ble V.K. Krishna Aver, J., observed in the said case that Governments under our Constitution shall not play with law officers on political or other impertinent considerations as it may affect the legality of the action and subvert the rule of law itself. In that case reliance was placed on an earlier decision of the Madras High Court wherein it was clearly held that the “duties of the Government Pleader, Madras, are duties of a public nature and the office of the Government Pleader is a public office.” ft was further observed that a Government Pleader is more than an advocate for a litigant. He, holds a public office. We recall with approval, the observations a Division Bench of the Madras High Court made in Ramachandran v. Alagiriswami AIR 1961 Madras 450 and regard the view there, expressed about a Government Pleader’s office as broadly correct even in the Bihar set up :
…The duties of the Government Pleaders, Madras are duties of a public nature. Besides, as already explained the public are genuinely concerned with the manner in which a Government Pleader discharges his duties because, if he handles his case badly, they have ultimately to foot the bill.
….
I consider that the most useful test to be applied to determine the question is that laid down by Erle, J., in (1831) 17 QB 149. The three criteria are, source of the office, the tenure and the duties. I have applied that, test and I am of opinion that the conclusion that the office is a public office, is irresistible.
8. In Mukul Dalai v. Union of India (1988) 3 SCC 114 it was held that “the office of the Public Prosecutor is a public one and the primacy given to the Public Prosecutor under the scheme of the Code of Civil Procedure as a social purpose.
9. Before going further on this question, we cannot overlook the decisions of this Court, in that regard. In Pirthwinath Chowdhury v. State of U.P. AIR 1959 All 169 Hon’ble Mr. Justice Jagdish Sahai while sitting with Hon’ble Mr. Justice R. N. Gurtu (as they then were) in paragraph 8 of the report observed : “The rule clearly shows that for certain purposes the law officer is considered to be a Government Servant Though he is not a member of any one of the regular services so as to be included in the expression “member of a civil service” to some extent, though to a limited one he would be deemed to be in the service of the Government in as much as the post of an Additional Government Advocate is an office in the nature of service (though not one of the regular services) it must be held to be an appointment or a post. The State has got full control over the appointment to this post. I am, therefore, of the opinion that it is a civil post within the meaning of Article 311 of the Constitution of India.
10. In para 20 of the report Hon’ble late R. N. Gurtu, J. concurring with the view expressed by Hon’ble Sahai, J., indicated :
The first question which arises is whether the petitioner is an employee of the State holding a Civil Post. It was not seriously disputed that he was an employee of the State, nor could it be disputed because Rule 2 of the U.P. State Law Officers Rules, 1942 makes it absolutely clear that the post of Additional Government Advocate carries with it part time civil employment under the State. (I have substituted the word “State” for the word “Crown”, which appears in the rule).
The post under the Rule 2 is described as a tenure post and is to be classed as a “specialist post”. Rule 10 provides that the Governor is to be the appointing authority. Rule 13 provides for the filling up of the temporary vacancies.
Rule 15 provides that “except as provided by these rules, the pay, allowances, leave and other conditions of service of a person appointed as a Law Officer shall be regulated by the general rules made by Governor under clause (b) of Sub-section (2) of Section 241 of the Government of India Act, 1935…and by and in accordance with the provisions of paragraph 15(2) of the Government of India Act (Commencement and Transitory Provisions) Order, 1936, There can, therefore, not be the slightest doubt, and this has been virtually conceded (hat the petitioner is a State servant holding a civil post.
11. The petitioner Pirthwinatli Chowdhry in the aforesaid case was given a tenure appointment for three years which was to come to an end on 16-4-1960, but he was removed on 1-10-1958. Hon’ble Jagdish Sahai relying upon P.L. Dhingra v. Union of India AIR 1958 SC 36 paras 47-48) observed that normally the petitioner had a right to remain as an Additional Government Advocate for the period of full three years for which he had been appointed. As he was removed before the expiry of the period of three years that would amount to a punishment and removal within the meaning of Article 311(2) of the Constitution of India. Hon’ble Gurtu, J. also took the same view by indicating that except in a case where the petitioner was liable to be removed for misconduct or dereliction of duty, he had an absolute right to continue on the post of Additional Government Advocate for three years.
12. In Suresh Prakash Agarwal, Advocate v. State of U.P. 1970 All LJ 351, Hon’ble Satish Chandra, J., (as he then was) observed :
The position of a panel lawyer is that of an ‘office’ under the State within the meaning of Article 16(1) of the Constitution of India. In the State of U.P. v. Bhola Nath Srivastava AIR 1972 All 460, a Division Bench of this Court observed :
We have, therefore, come to the conclusion that the posts or positions of the law officers in the High Court are ‘offices’. Since the appointments and continuance in office of the persons appointed to the offices rest solely with the Government and their remuneration is fixed and paid by the Government, they are ‘offices under the State’. It was also observed that the appointments to those offices are covered by Article 16(1) of the Constitution of India.
13. Pirthwinath Chowdhury v. State of U.P. AIR 1959 All 169 (supra) was approved by a Division Bench of this Court consisting of Hon’ble Mr. Justice V.N. Khare and Hon’ble Mr. Justice H. C. Mittal to (he extent that the decision was confirmed to the office of Additional Government Advocate who appeared for the Government in the High Court.
14. Then came Kumari Shrilekha Vidyarthi v. State of U.P. (1991) 1 SCC 212 : 1993 All LJ 4, wherein the Hon’ble Judges after considering the various paras of Legal Remembrance’s Manual observed:
These provisions clearly indicate that the appointment and engagement of District Government Counsel is not the same as that by a private litigant of his counsel and there is obviously an element of continuity of the appointment unless the appointee is found to be unsuitable either by his own work, conduct or age or in comparison to any more suitable candidate available at the place of the appointment. Suitability of the appointee being the prime criterion for any such appointment, it. is obvious that an appointment of the best amongst those available, is the object sought to be achieved by these provisions, which, even otherwise, should be the paramount, consideration in discharge of this governmental function aimed at promoting public interest. All Government counsel are paid remuneration out of the public exchequer and there is a clear public element attached to the ‘office or ‘post.’,
(Emphasis added)
15. While dealing with the office of the public prosecutor also known as District Counsel (Criminal) Hon’ble Supreme Court in Kumari Shrilekha Vidyarthi (1993 All LJ 4) (supra) further observed (at p. 14 of All LJ):
There can be no doubt about the statutory element attaching to such appointments by virtue of these provisions in the Code of Ciminal Procedure 1973. In this context, Section 321 of the Code of Criminal Procedure, 1973 is also significant. Section 321 permits withdrawal from prosecution by the Public Prosecutor or Assistant Public Prosecutor in charge of a case, with the consent of the Court, at any time before the judgement is pronounced. This power of the Public Prosecutor in charge of the case is derived from Statute and the guiding consideration for it must be the interest of administration of justice…,. In the case of the Public Prosecutors, this additional public element flowing from statutory provisions in the Code of Criminal Procedure, undoubtedly, invest the public Prosecuters with the attribute of holder of a public office which cannot be whittled down by the assertion that their engagement is purely professional between a client and his lawyer with no public element attaching to it.
(Emphasis added)
16. After relying upon the earlier decisions., Hon’ble Supreme Court further observed in Kumari Shrilekha Vidyurthi (1993 All LJ 4 at pp. 15 and 16) (supra):
We are, therefore, unable to accept the argument of the learned Additional Advocate General that the appointment of District Government Counsel by the Stale Government is only a professional engagement like that between a private client and his lawyer, or that it is purely contractual with no public element attaching to it, which may be terminated at any time at the sweet will of the Government excluding judicial review. We have already indicated the presence of public element attaching to the ‘office’ or ‘post’ of District Government Counsel of every category covered by the impugned circular. This is sufficient to attract Article 14 of the Constitution and bring the question of validity of the impugned circular within the scope of judicial review.
17. Repelling the contention that Article 14 of the Constitution cannot be applied to contractual matters. Hon’ble Supreme Court observed in the last portion of para 21 of the report:
We have no doubt that the Constitution does not envisage or permit unfairness or unreasonable in State actions in any sphere of its activity contrary to the professed ideals in the Preamble. In our opinion, it would be alien to the constitutional scheme to accept the argument of exclusion of Article 14 in contractual matters. The scope and permissible grounds of judicial review in such matters and the relief which may be available are different matters but that does not justify the view of its total exclusion. This is more so when the modern trend is also to examine the unreasonableness of a term in such contracts where the bargaining power is unequal so that these are not negotiated contracts but standard form of contracts between unequals.
It was further observed in paragraph 22 of the report:
However, to the extent, challenge is made on the ground of violation of Article 14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to comply with the basic requirements of Article 14. To this extent, the obligation of a public character invariably in every case, irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Article 14 of non-arbitrariness at the hands of the State in any of its actions.
18. After holding that the wide sweep of Article 14 undoubtedly takes within its fold the impugned circular issued by the State of U. P. in exercise of its executive power, irrespective of the precise nature of appointment of the Government counsel in the districts and the other rights, contractual or statutory, which the appointees may have. It was held that the circular must satisfy Article 14 of the Constitution and if it is shown to be arbitrary it must be struck down. It was held in para 44 of the report :
Conferment of the power with the discretion which goes with it to enable proper exercise of the power is coupled with the duty to shun arbitrariness in its exercise to promote the object for which the power is conferred, which undoubtedly is public interest and not individual or private gain, whim or caprice of any individual. Ali persons entrusted with any such power have to bear in mind its necessary concomitant which alone justifies conferment of power under the roles of law. This was apparently lost sight of in the present case while issuing the impugned circular.
19. In Uday Nath Roy v. State of Bihar (1992) 1 Pat LJR 258 the Patna High Court placing reliance in Mudrika Prasad Sinha v. State of Bihar AIR 1979 SC 1871 and Kumars Shritekha Vidyarthi v. State of U.P. (supra) AIR 2991 SC 537 : 1993 All LJ 4 held:
It is, therefore, futile to equate the office of the Public Prosecutor with a political office. The Public Prosecutor holds a public office and is charged with the duties of so acting as to best serve the interest of administration of justice. His appointment is not due to his political affiliation, but in recognition of his merit as a competent and honest lawyer. He is not to be directed by the Government, and in all cases must give his honest opinion. He is appointed by the Government, but is also an officer of the Court and, therefore, fairness, objectivity and impartiality are the hall marks of that office.
20. Repelling the contention of the State that the public prosecutor can remain in office only till he enjoys the confidence of the Government it was observed in Uday Nath Roy (1992 (1) Pat LJR 258) (supra): “The confidence must not be confused with mere closeness with the political powers that be. The existence of confidence or loss of confidence must be judged by reference to the actions of the person holding a public office and not by his closeness to the political ruler of the State. The Government may be justified in losing confidence in the holder of a public office, if it is shown that the holder of the public office has acted in disregard of his duties and obligations and/or has acted in illegal manner contrary to public interest. If there was any evidence to show that the Government had before it material to show that the actions of the petitioner were such as were not in the interest of administration of justice, the Government may have been justified in terminating the appointment of the petitioner in accordance with law. That would have furnished a cogent reason for the action of the Government. The mere fact that the petitioner was appointed as a Public Prosecutor by the Government on the eve of the elections, by itself will not furnish justification for his removal from the office on the ground of loss of confidence, unless there is something more to justify the action. Mere change of Government is wholly irrelevant to justify removal of a Public Prosecutor who holds a public office and is charged with the duty of acting honestly, impartiality and objectivity in the interest of administration of justice.
21. A similar question was raised before a Division Bench of the Patna High Court in Tarak Nath Mukherjee v. The State of Bihar 1992 (2) Pat LJR 200. Receiving upon, Mundrika Prasad Sinha v. State of Bihar AIR 1979 SC 1871 (supra), Kumari Shrilekha Vidyarthi v. State of U.P. 1993 AH LJ 4 (SC) and Uday Nath Roy v. State of Bihar 1992 (1) Pat LJR 258 (supra), the Division Bench held that the appointment of respondent No. 4 as Public Prosecutor replacing the petitioner in the said office was arbitrary and illegal and the petitioner should be allowed to function as Public Prosecutor for the remainder of the term.
22. In Hitendra Vishnu Thakur v. State of Maharashtra (1994)4 SCC 602 : AIR 1994 SC 2623 Hon’ble Supreme Court observed that a Public Prosecutor is an important officer of the State Govt. and is appointed by the State under the Code of Criminal Procedure. He is not a part of the investigating agency. He is an independent statutory authority.
23. All the Public Prosecutors appointed by the State Government whether they have to perform their duties in district courts or in the High Court are appointed under Section 24, Cr.P.C. Although there exists a difference in the manner of appointment. While in case of Public Prosecutor in District Court, the vacancies are notified on the notice board (although such posts are not advertised in the manner other civil posts are advertised…) applications are invited from amongst the lawyers, and the District Magistrates, after consulting with the District and Sessions Judges, and obtaining their opinions, about the performances of the candidates in courts, send the recommendations to the State Government, which appoints the Public Prosecutors in district courts. While in the matter of appointments of Public Prosecutors in High Courts earlier the State Government without calling for applications appointed the Public Prosecutors after consultation with the High Court.
24. As we have indicated earlier, such appointments whether for district courts or High Courts stem from statutory provisions contained in Section 24, Cr.P.C. The manner and the procedure of such appointment is indicated in L.R. Manual. There cannot be any doubt that there is a public element attached to the office or the post of the Public Prosecutor appointed under Section 24, Cr.P.C. They hold an ‘office’ or statutory post which may be different from the other posts which the public servants hold in the Government Offices but it cannot be denied that there is a public element attached to such an ‘office’ or ‘post’. Public Prosecutors are officers of the Court who assist the Courts in the process of dispensation of justice.
25. The expression “professional engagement” only distinguishes it from other ‘offices’ or ‘posts’ under the Government. But as held in Kumari Shrilekha Vidyarthi (1993 All LJ 4) (SC) (supra) this does not mean that a person who is not a Government servant holding a post under the Government, does not hold any public office and the engagement is purely private and no public element attached to it and appointment can be terminated “at any time without assigning any cause”, but cannot be done without existence of any cause meaning thereby; that reasons may not be indicated, but the reasons must exist other wise the decision would be arbitrary.
26. Although a Public Prosecutor holds a public office of a statutory nature but whether the ‘office’ or ‘post’ of Public Prosecutor is a post falling within Articles 309, 310 and 311 of the Constitution of India is to be considered in the light of the observations of the various pronouncements of the High Court as well as of the Hon’ble Supreme Court.
27. Mr. W. H. Khan, learned counsel appearing for the petitioner, referred to us the U.P. Crown Law Officers Rules of 1942 framed under Clause (2) of Sub-section (1) and Clause (b) of Sub-section (2) of Section 241 of the Government of India Act, 1935 and office memorandum issued under Article 309 of the Constitution from time to time read with Section 21 of the General Clauses Act, 1897 regulating appointments and conditions of the Service of the law officers. A Division Bench of this Court in R.P. Singh v. State of U.P. 1990 All LJ 971 expressed an opinion that Article 313 of the Constitution is to be read with Article 309, and what is contemplated by Article 313 is that the laws enforced immediately before the commencement of the Constitution are to continue to apply to public services until the rules are made, as required by Article 309 of the Constitution of India. Issue of administrative instructions cannot fulfil the requirement of Article 313 of the Constitution, and it cannot be said that administrative instruments are ‘other provisions’ which will take away the right, which has been conferred on the members of a service under Article 313 of the Constitution of India. The Division Bench further held that unless rules are made under Article 309 of the Constitution, regulating the recruitment and conditions of service of persons appointed to public service or posts in connection with the affairs of the State, the rules in force, immediately before the commencement of the Constitution of India, continue to be applicable to such services. Issue of administrative instructions in exercise of the executive powers of the State will not take away the right conferred on the members of the service under Article 313 of the Constitution of India.
28. This observation was made in the light of the Government notification dated 29-6-1968 rescinding the Crown Rules of 1942. The Division Bench was of the opinion that once the post and service continued the rules made in the Government of India Act, 1935 could not have been rescinded and a vacuum created. The Governor under the provisions could have made rules regulating the recruitment and conditions of service. The Governor could have amended, modified or could have made changes in the Rules, but the Governor had no power under Article 309 of the Constitution of India by issuing a Government Order to put an end to the service itself, particularly when, in fact, the service still continued. By issuing a notification dated 29-6-1968, rescinding the Crown Rules of 1942 and by not making any further provision in the nature of Rules regulating the recruitment and conditions of service, the State acted in violation of the right guaranteed under Article 313 of the Constitution of India. Article 309 of the Constitution is subject to the other provisions in the Constitution while the right conferred by Article 313 of the Constitution is absolute. The notification rescinding the Crown Rules of 1942 was, therefore, held to be wholly invalid and violative of Article 313 of the Constitution of India.
29. The Bench expressed an opinion that the rules applicable to any public service which have been continued under Article 313 of the Constitution of India cannot be substituted by mere administrative instructions and in that regard the Bench relied upon the observations of Hon’ble Supreme Court in B.N. Nagarajun v. State of Mysore AIR 1966 SC 1942, Smt. Sant Ram Sharma v. State of Rajasthan AIR 1967 SC 1910, State of Haryana v. Shamsher Jang Shukla AIR 1972 SC 1546, Union of India v. Malji Jangammayya AIR 1977 SC 757, Baleshwar Dass v. State of U.P. AIR 1981 SC 41, Ramendra Singh v. Jagdish Prasad AIR 1984 SC 885 and P.D. Aggarwal v. State of U.P. AIR 1987 SC 1676.
30. We have not mentioned the Crown Rules of 1942 as the same have been quoted extensively in R.P. Singh v. State of U.P. 1990 All LJ 971 (supra), but confine to Rule 14 only where the Governor reserves a right of removing or suspending any law officer at any time during his officer, on misconduct or dereliction of duty subject to the provisions, that no officer shall be removed unless he is given a reasonable opportunity of being heard in his defence. In the light of the aforesaid rules the Bench of this Court in R.P. Singh (1990 All LJ 971 at p 986) (supra) observed:
It is, therefore, clear that under the Crown Rules of 1942, there was a specific rule that no Law Officer could be removed unless he has had a reasonable opportunity of being heard in his defence. Office Memorandum No. 2556 dated 29th June, 1968 as amended from time to time laying down general instructions regulating the appointment and tenure of the State Law Officers of the, State in the High Court provides in Clause 6 that the appointment as a Law Officer is only a provisional engagement terminable at will on either side and, accordingly, the Governor reserves a right to terminate the engagement of any Law Officer at any time without assigning any cause. This Clause 6 of the Office Memorandum directly in conflict with the Statutory Crown Rules of 1942. Clause 6 contemplates that the Law Officers in the High Court could be removed without assigning any cause and without affording any opportunity of the Law Officers. This Clause, in effect, supersedes the statutory rules contained in the Crown Rules of 1942 and, as such, this Clause 6 cannot be given effect to as it is ultra vires to 1942 Rules.
31. Relying upon Pirthwinath Chowdhry v. State of U.P. AIR 1959 All 169 (supra), Shivamurthy Swamy Inamdar v. Anadi Sanganna Andanappa (1971) 3 SCC 870, Mundrika Prasad Singh v. State of Bihar AIR 1979 SC 1871 (supra) and Kumari Shrilekha Vidyarthi v. State of U.P. 1993 All LJ 4 (SC) (supra), the Division Bench held that the District Government Counsel holds a public office and repelled the contention that it is only a sort of provisional engagement like that between a private client and a lawyer. The Division Bench was of the view that similar principles are applicable to State Law Officers in the High Court. Ultimately the Bench quashed the orders terminating the service of the Standing Counsel and Additional Public Prosecutor for appointment of fresh Standing Counsel and Additional Public Prosecutor at Allahabad and Lucknow and restored the Law Officers whose services were terminated.
32. Several appeals were filed before the Hon’ble Supreme Court against the decision of the Division Bench of this Court in R.P. Singh, (1990 All LJ 971) (supra). The appeals were allowed and the judgment of the High Court in R.P. Singh was set aside.
33. The learned Advocate General who was ably assisted by the Additional Advocate General placing reliance on the decisions of Hon’ble Supreme Court in State of U.P. v. U.P. State Law Officers Association AIR 1994 SC 1654 which had arisen from the writ petition filed by R.P. Singh 1990 All LJ 971 submitted that the appointment of Law Officers by the State Government is nothing but a professional engagement and the Government orders terminating such professional engagement cannot be challenged on the ground of violation of principles of natural justice.
34. Before mentioning the observations of the Hon’ble Supreme Court in the aforesaid decision it would be relevant to State the facts of the aforesaid case as indicated in paras 3 and 20 of the report. At the relevant time there were 64 Law Officers working for the State Government in the High Court of Allahabad, including its Lucknow Bench. By an order dated July 23,1990 the State Government removed 26 of the said Law Officers. Out of these, 9 law officers had been working for a long time, some of them for more than 15 years. Their continuation as Law Officers was till further orders and their term had expired. Other 11 officers out of the removed officers had been appointed during the year 1982-83 and they continued to work till the date of their removal, without renewal of their term. The remaining 6 law officers were appointed variously in March, 1989 and May, 1989 for a period of one year only, with a stipulation that they could be removed any time without giving any reason whatsoever. Their term had also not been renewed after the expiry of the initial period of their appointment.
35. There was no dispute that, in cases of all these 26 officer, and indeed in cases of all the law officers in the High Court, the terms of the appointment contained a condition that notwithstanding the period for which they were appointed, they could be removed at any time without giving any reason whatsoever. Before issuance of the aforesaid order of removal dated July 23, 1990 the State Government had issued another order on May, 26, 1990 by which the system of engaging Brief Holders in the High Court was abolished with immediate effect. By yet another order of June 28, the State Government had authorised the Legal Remembrancer to appoint a special counsel for any special matter before the High Court. The order also gave him financial and administrative powers which were earlier exercised by the Chief Standing Counsel and the public prosecutor. He was further given power to distribute the work to the various standing counsel and the Additional Public Prosecutors.
36. Aggrieved by the orders dated July 23, 1990 and May 26, 1990 the Brief Holders approached the High Court by filing writ petitions, contending among other things, that their removal was against the principles of natural justice and that they could be removed from their offices, only for valid reasons. The High Court accepted the contention of the law officers and quashed the impugned orders of removal from their offices. The High Court also quashed the order dated May 26, 1990 passed by the State Government by which the State Government had abolished the system of engagement of Brief Holders and directed the respondents to continue the said system.
37. After delving into the relevant conditions and the nature of appointment of the District Government Counsel, and the conditions of service of the District Government Counsel as mentioned in Chapter VIII of L.R. Manual, the Hon’ble Supreme Court observed that the appointment of lawyers by the Government and by the public bodies to conduct work on their behalf, and their subsequent removal from such appointment have to be examined from three different angles, viz., the nature of the legal profession, the interest of the public and modes of appointment and removal. Thereafter the Hon’ble Supreme Court observed : (AIR 1994 SC 1654 at Pp 1662-63):
It would be evident from Chapter V of the said Manual that to appoint the Chief Standing Counsel, the Standing Counsel and the Government Advocate, Additional Government Advocate, Deputy Government Advocate and Assistant Government Advocate, the State Government is under no obligation to consult even its Advocate General much less the Chief Justice or any of the Judges of the High Court or to take into consideration, the views of any committee that “may” be constituted for the purpose. The State Government has a discretion. It may or may not ascertain the views of any of them while making the said appointments. Even where it chooses to consult them, their views are not binding on it. The appointments may, therefore, be made on considerations other than merit and there exists no provision to prevent such appointments. The method of appointment is indeed not calculated to ensure that the meritorious alone will always be appointed or that the appointments made will not be on considerations other than merit. In the absence of guidelines, the appointments may be made purely on personal or political considerations, and be arbitrary. This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the back door have to go by the same door. This is more so when the order of appointment itself stipulates that the appointment is terminable at any time without assigning any reason. Such appointments are made, accepted and understood by both sides to be purely professional engagements till they last. The fact that they are made by public bodies cannot vest them with additional sanctity. Every appointment made a public office, howsoever, made, is not necessarily vested with public sanctity. There is, therefore, no public interest involved in saving all appointments irrespective of their mode. From the inception some engagements and contracts may be the product of the operation of the spoils system. There need be no legal anxiety to save them.
38. In para 20 of the report the Hon’ble Supreme Court observed (at p. 1663 of AIR):
As the facts narrated earlier show, out of 26 respondent law officers, the period of contract of nine of them had expired and they were continued till further orders. The remaining seventeen had continued after the expiry of their initial term without even formal orders of extension. In other words, none of the 26 officers had any right to hold the office on the date of their removal, even under the initial terms of appointment which stipulated the contractual period. This is apart from the fact that the terms of the contracts also provided that the appointment could be terminated at any time without assigning reason. The reliance placed by the respondents in this behalf of Shrilekha Vidyarthi v. State of U.P. 1993 All LJ 4 (SC) is misplaced for the obvious reason that the decision relates to the appointment of the District Government Counsel and the Additional/Assistant District Government Counsel who are the law officers appointed by the State Government to conduct civil criminal and revenue cases in any Court other than the High Court. Their appointments are made through open competition from among those who are eligible for appointment and strictly on the basis of merit as evidenced by the particulars of their practice, opinions of the District Magistrate and the District Judge and also after taking into consideration their character and conduct. Their appointment is in the first instance for one year. It is only after their satisfactory performance during that period that a deed of engagement is given to them, and even then the engagement is to be for a term not exceeding three years. The renewal of their further term again depends upon the quality of work and conduct, capacity as a lawyer, professional conduct, public reputation in general, and character and integrity as certified by the District Magistrate and the District Judge. For the said purpose, the District Magistrate and the District Judge are required to maintain a character roll and a record of the work done by the officer and the capacity displayed by him in discharge of the work. His work is also subject to strict supervision. The shortcomings in the work are required to be brought to the notice of the Legal Remembrancer. It will thus be seen that the appointment of the two sets of officers, viz., the Government Counsel in the High Court with whom we are concerned, and the District Government Counsel with whom the said decision was concerned, are made by dissimilar procedures. The latter are not appointed as a part of the spoils system. Having been selected on merit and for no other consideration, they are entitled to continue in their office for the period of the contract of their engagement and they can be re-moved only for valid reasons. The people are interested in their continuance for the period of their contracts and in their non- substitution by. those who may come in through the spoils system. It is in these circumstances that this Court held that the wholesale termination of their services was arbitrary and violative of Article 14 of the Constitution. The ratio of the said decision, can hardly be applied to the appointments of the law officers in the High Court whose appointment itself was arbitrary and was made in disregard of Article 14 of the Constitution as pointed out above. What is further, since the appointment of District Government Counsel is made strictly on the basis of comparative merits and after screening at different levels, the termination of their services is not consistent with the public interests. We are, therefore, of the view that the High Court committed a patent error of law in setting aside the order dated July 23, 1990 terminating the services of the respondent law officers.
39. In view of the law laid down by the Hon’ble Supreme Court in State of U.P. v. U.P. State Law Officers Association AIR 1994 SC 1654 (supra), it was contended on behalf of the State that the public prosecutor does not hold a civil post within the meaning of Article 311 of the Constitution as no relationship of employer and employee exists between the State Government and the public prosecutor. At the most it can be said that the office of public prosecutor is an office under the State, but as even after appointment as a public prosecutor, the lawyers so appointed continue, in the legal profession and conduct cases on behalf of the State before the Court, hence the relationship between the public prosecutor and the State is essentially that of a counsel and a client. If the appointment of the public prosecutor is terminated, it cannot be said that it is violative of Article 311 of the Constitution. The relationship between a public prosecutor and the State is governed by a contract which is not statutory, but only contractual. As the right to terminate the appointment flows from the concluded contract, hence it cannot be subjected to judicial review and the protection of Article 14 of the Constitution would not be available to such law officer. The office of the public prosecutor is nothing but a trust and confidence and such a professional arrangement can be set at naught by terminating his appointment. In that regard reference was also made to the decision of a Division Bench of this Court in Triloki Nath Pandey v. State of U.P. AIR 1990 All 143 : 1990 All LJ 436.
40. In support of the contention that the appointment of the public prosecutor is nothing but a professional engagement, reference to paras 4.05 and 4.07 of the L.R. Manual was made. According to it the public prosecutor is free to conduct all cases except criminal cases and even in criminal cases he can appeal against the Government. The only requirement is to obtain prior permission from the State Government. There is no prohibition on their participating in any political activity and there exists no provision under which the Government is bound to institute disciplinary proceedings against a public prosecutor before terminating his services. Chapter XXI para 21.03 of the L.R. Manual provides that the public prosecutor shall be appointed in accordance with the Section 24 of the Code of Criminal Procedure. Section 24 of the amended Code of Criminal Procedure has done away with the provision regarding consultation with High Court, in making appointment of public prosecutor. It was submitted that after the amendment in the Code of Criminal Procedure, the State has been vested with unfettered powers to appoint a public prosecutor.
41. It was submitted that para 21.07 of the L.R. Manual provides for appointment of a public prosecutor in district Court for a period of three years, but even that paragraph confers powers upon the Government that such appointment can be terminated at any time without notice and without assigning any reason. The term of public prosecutor in the High Court is governed by Appendix 8 of the L.R. Manual, which provides in Clause (6) that the appointment of any legal practitioner as a law officer is only a professional engagement, terminable at will of either side and accordingly the Governor reserves the right to terminate the engagement of any law officer at any time without assigning any cause, and subject to this right, law officers shall ordinarily be appointed for a term on one year in the first instance, which term may be renewed for a period not exceeding three years at a time. It was vehemently argued that Chapter VII of the L.R. Manual deals with the appointment of the public prosecutor known as District Government Counsel who appears and conducts cases before the sessions Court. According to para 7.03 whenever a vacancy occurs it is provided that the same would be notified to the members of the bar and thereafter applications are called upon and thereafter the District Magistrate with the consultation of the District and Sessions Judge sends a panel of the names to the State Government for appointment. The District Government Counsel is prohibited to participate in the political activities and he has to work under the control of the legal remembrancer and district officer.
42. It was submitted that the nature and the manner of appointment and the functioning of the public prosecutors in High Court are entirely different in comparison to the public Prosecutors who are appointed to discharge their duties in the district courts as the procedure of appointment as well as the conditions under which the Public Prosecutors in the High Court work are different in comparison to the Public Prosecutors who work in district Courts. The Courts should adopt a different standard while invoking the power of judicial review.
43. Before dealing with the contentions raised by the learned Advocate General, it would be necessary to look into the relevant provisions of the Code of Criminal Procedure regarding the public Prosecutors. Under Section 2(u) of the Code of Criminal Procedure, 1973 the words ‘Public Prosecutor’ have been defined. Section 2(u) of the Code of Criminal Procedure is reproduced below :
2(u), ‘Public Prosecutor’ means any person appointed under Section 34 and includes any person acting under the directions of a Public Prosecutor.
44. Section 24 of the Code of Criminal Procedure reads as under:
24. Public Prosecutors. – (1) For every High Court, the Central Government or the State Government 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 proceeding on behalf of the Central Government or State Government, as the case may be.
(2) The Central Government may appoint one or more Public Prosecutors, for the purpose of conducting any case or class of cases for any district, or local area.
(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 be appointed also to be a Public Prosecutor or an Additional 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 be 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).
(6) Notwithstanding anything contained in Sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre.
Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person a Public Prosecutor or Additional Public Prosecutor, as the case may be, from the Panel of names prepared by the District Magistrate under Sub-section (4).
(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under Sub-section (1) or Sub-section (2) or Sub-section (3) or Sub-section (6), only if he has been in practice as an advocate for not less than seven years.
(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.
(9) For the purposes of Sub-section (7) and Sub-section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such per-son has been in practice as an Advocate.
45. From the aforesaid provisions as well as other provisions contained in the Code of Criminal Procedure it is evident that the duties and functions of the Public Prosecutor are statutory. The Public Prosecutor may not be holding a post or any other similar post as a Public or Government servant holds, but he certainly holds a public office of trust under the State. It is an office of responsibility, more important than many others, because Public Prosecutor is not only required to prosecute the cases with detachment on the one hand and yet with vigour on the other. He is empowered under the provisions of the Code of Criminal Procedure to withdraw the prosecution of a case on the direction of the State Government.
46. Referring to the observations of Hon’ble Supreme Court in State of Assam v. Kanak Chandra Dutta AIR 1967 SC 884 at p 886 Mr. W.H. Khan, learned counsel for the petitioner contended that in the context of Articles 309, 310 and 311 of the Constitution a post denotes an office. A person who holds a civil post under a State holds ‘office’ during the pleasure of the Governor of the State, except as expressly provided by the Constitution. A post under the State is an office or a position to which duties in connection with the affairs of the State are attached, an office or a position to which a person is appointed and which may exist apart from the independently of the holder of the post. It was further submitted by the learned counsel for the petitioner that the office of the Public Prosecutor has a distinctive character from the officer of the Chief Standing Counsel/Standing Counsel, engaged by the Government who represents its cases before the High Court under the instructions of the State Government, but the appointment and functions of a Public Prosecutor stands on a different footings inasmuch as he is appointed under the statutory powers contained in the Code of Criminal Procedure and discharges his duties independently as a statutory functionary and like the Chief Standing Counsel/Standing Counsel he is not engaged on the basis of a contract.
47. In that regard the observations of Hon’ble Supreme Court in Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 para 23 : AIR 1994 SC 2623, para 22 (supra) have been cited wherein it was held that a Public Prosecutor is an important officer of the State Government and is appointed by he State Government under the Code of Criminal Procedure. He is not a part of the investigating agency. He is an independent statutory authority.
48. No doubt the petitioner held an ‘office’ of profit created by a statute. An office of profit means an office in respect of which profit can accrue. The petitioner was getting monthly remuneration as well as Rs. 500/- per day in the cases in which he used to appear. No doubt according to law laid down in Mahadeo v. Shantibhai 1969 (2) SCR 4 22 (supra) and Smt. Kanta Kathuria v. Manak Chand Surana AIR 1970 SC 694 (supra) it can be said that the petitioner holds an office of profit, but there are several decisions by different Courts as well, that the lawyers engaged as the District Government Counsel appointed by the Government to conduct its cases are not public servants, the citations of which are 1969 Lab IC 1257 (AndhPra), Civil Misc. Writ Petition No. 2829 of 1967 (Rai Kishore Lal v. State of U.P.) decided on 8 -9-1967 by a Division Bench of this Court, Civil Misc. Writ Petition No. 1657 of 1979 decided by this Court on 9-12-1981 and Triloki Nath Pandey v. State of U.P. (1990) 1 UPBFC 542 : 1998 All LJ 436. There are several decisions of the Hon’ble Supreme Court including Mundrika Prasad Sinha v. State of Bihar AIR 1979 SC 1871 and Mukul Dalai v. Union of India (1988) 3 SCC 144 and several other decisions of High Courts, including Suresh Prakash Agarwal v. State of U.P. 1970 All LJ 351; State of U.P. v. Bholanath Srivastava AIR 1972 All 460; Md. A. Mohambaran v. M.A. Jayavelu AIR 1970 Mad 63 that the office of the Government Counsel is an office under the State.
49. In State of Assam v. Kanak Chandra Dutta AIR 1967 SC 884 (at p 886) (supra) it was held that “in the context of Articles 309, 310 and 311, a post denotes an office. A person who holds a civil post under a State holds “office” during the pleasure of the Governor of the State”, meaning thereby, that there exists no difference between an ‘office’ and ‘civil post’ but in the later decisions including Kumari Shrilekha Vidyarthi (1993 All LJ 4) (SC) (supra) there has been a catena of cases, wherein it was held that the appointment on such office is a sort of ‘professional engagement’. In view of the aforesaid latest decisions of Hon’ble Supreme Court the argument of Mr. W.H. Khan that the petitioner holds ‘post’ or ‘civil post’ like public or Government servants and his appointment can only be terminated in accordance with the provisions contained in Article 311 of the Constitution is misconceived and untenable in law.
50. Mr. W.H. Khan further submitted that the decisions of the Hon’ble Supreme Court in State of U.P. v. U.P. State Law Officers Association AIR 1994 SC 1654 (supra) and subsequent decisions which are based on the U.P. State Law Officers case (supra) (1994) 2 SCC 204 : (AIR 1994 SC 1654) are per incuriam as in those cases the decision of the Constitution Bench in Smt. Kanta Kathuria v. Manak Chand Surana AIR 1970 SC 694 (supra)was not considered. It was further submitted that in those cases the statutory provisions of Section 2(s), Section 24 and Chapters IV and XXI of the L.R. Manual were not noticed at all.
51. It was also asserted that in R.P. Singh v. State of U.P. 1990 All LJ 971, the Division Bench further declared that the notification dated 29-6-1968, by which the U.P. Crown Law Officers Rules, 1942 were rescinded, and the office memorandum dated 29-6-1968 by which general instructions were issued regarding the appointment and tenure of the law officers of the State in High Court were held to be illegal and void. The U.P. Crown Law Officers Rules, 1942 are still operative. In U.P. State Law Officers Association (1994) 2 SCC 204 : (AIR 1994 SC 1654) and U.P. Government Counsel (Crl.) Welfare Association 1995 Suppl (1) SCC 15 : (AIR 1995 SC 575), the Hon’ble Supreme Court only addressed itself to the orders dated 23 -7 -1990 and 26-5-1990 and quashed them. The Hon’ble Supreme Court did not indicate at all about the U.P. Crown Law Officers Rules, 1942 or the notification dated 29-6-1968, by which the said Rules of 1942 were rescinded or the office memorandum dated 29-6-1968 whereby general instructions were given for the appointment and tenure of the State Law Officers. The Hon’ble Supreme Court also did not set aside the proposition of law laid down by this Court, regarding the application of the Rules of the invalidity of the notification dated 29-6-1968 and the office memorandum dated 29-6-1968. Neither any argument was raised nor there was any discussion nor any decision on the questions referred to above.
52. What we have understood from the submission of Mr. W.H. Khan is that the Hon’ble Supreme Court in U.P. State Law Officers Association (AIR 1994 SC 1654) (supra) did not deal with proposition of law laid down by this Court in R.P. Singh (1990 All LJ 971) (supra) and the ratio decidendi of the decision of Hon’ble Supreme Court was confined to 26 law officer, whose term had come to and end and they had no right to continue and as they were appointed by a back door procedure, hence they have to go back from that door. In that regard Mr. Khan drew the attention of this Court to the observations of the Hon’ble Supreme Court in Vijay Kumar Sharma v. State of Karnataka (1990) 2 SCC 562 : AIR 1990 SC 2072 (para 38), Union of India v. Dhanwanti Devi (1996) 6 SCC 44 (paras 9 and 10) and Mittal Engineering Works v. Collector of Central Excise Meerut (1997) 1 SCC 203 (para 8), to support his contention that Hon’ble Supreme Court did not overrule, the views expressed by this Court in R.P. Singh (supra) that the notification dated 29-6-1968 by means of which the U.P. Crown Law Officers Rules, 1942 were rescinded was illegal and the Rules still subsist or operate.
53. Placing reliance on certain observations of Hon’ble Supreme Court in Union of India v. Tulsi Ram Patel AIR 1985 SC 1416 : (1993) 3 SCC 552 : AIR 1993 SC 2436 and T.C. Hingorani 1967 All WR 662 (SC), it was submitted that under Article 313 of the Constitution of India the U.P. Crown Law Officers Rules, 1942 is a law and could be replaced only by the Rules formed under Article 309. The State Government cannot create a vacuum by simply rescinding the said Rules by Government orders and replacing them by office instructions. The contention appears to be is that Rules can only be replaced by rules and not by office instructions. On the other side it was contended by the learned Advocate General that the U.P. Crown Law Officers Rules, 1942 were undoubtedly rescinded by a Government Order issued under Article 309 of the Constitution and under Article 162 of the Constitution the State is empowered to issue Government Orders under Article 309 of the Constitution because it has the authority to legislate on the subject.
54. In exercise of our jurisdiction under Article 226 of the Constitution this Court, which is bound by judicial discipline, cannot declare a decision of the Hon’ble Supreme Court as per incuriam. The law declared by the Hon’ble Supreme Court under Article 141 of the Constitution is binding upon this Court.
55. We need not delve into the question as to whether the U.P. Crown Law Officers Rules, 1942 has been rescinded or not, irrespective of the fact that in R.P. Singh (1990 All LJ 971) (supra) a Division Bench of this Court declared the notification dated 29-6-1968 as illegal and void by holding that the U.P. Crown Law Officers Rules, 1942 were still alive and quashed clauses 3 to 5 and 7 of the Government Order dated 6-11-1989, but as Hon’ble Supreme Court in U.P. State Law Officers Association (1994) 2 SCC 204 : (AIR. 1994 SC 1654) and U.P. Government Counsel (Cri) Welfare Association 1995 Supp (1) SCC 15 : (AIR 1995 SC 575) set aside the judgment of the High Court and declared that both the orders dated 23-7-1990 and 26-6-1990 were valid and the termination of the appointment of the respondents law officers was valid and proper, this Court is not inclined to sit over the judgment of the Hon’ble Supreme Court and declare the decisions of the Hon’ble Supreme Court as per incuriam.
56. Dealing with the factual matrix as set out in the writ petition, counter-affidavit and rejoinder-affidavit, Mr. W. H. Khan urged that the impugned orders suffer from colourable exercise of power, non-application of mind and arbitrariness.
57. In that regard the attention of this Court was drawn towards the fact that although the provisions contained in Section 24 of the Code of Criminal Procedure were amended by the U.P. Ordinance No. XVIII of 1991 which was promulgated on 16-2-1991, the same was replaced by the U.P. Act No. XVIII of 1991 by means of which the words ‘after consultation with the High Court’ were deleted. At the relevant time the writ petition filed by one Mr. Kripa Shankar was pending before this Court. On 11-3-1991, after the promulgation of U. P. Ordinance No. XVIII of 1991 which was promulgated on 16-2-1991 Shri Umesh Chandra, the erstwhile Advocate General made a statement before this Court which was recorded to the effect that when the question of appointment of Public Prosecutors will arise in future, whether directly or by promotion from the post of Addl. Public Prosecutor the State make the appointment in accordance with Section 24 of the Code of Criminal Procedure after Consultation with the High Court. It was submitted that this statement/undertaking was not like a consent given by any law officer of the State but was given by one of the highest legal dignitary of the State who holds a cabinet rank and is the chief legal advisor of the Government and has an access to the State Legislative Assembly and Legislative Council as a member of the House. On behalf of the State it was submitted that the writ petition of Kripa Shanker was dismissed by this Court. Hence the undertaking given by the erstwhile Advocate General is of no consequence. It was further urged that as the Hon’ble Supreme Court has declared that the amendment of Section 24 of the Code of Criminal Procedure was valid hence the State Government is not bound to consult the High Court before making any appointment of the Chief Public Prosecutor or Public Prosecutor in the High Court.
58. From the side of the petitioner it was urged that in spite of deletion of the words ‘after consultation with the High Court from Section 24 of the Code of Criminal Procedure the practice of consulting with the High Court in the matter of appointment of public prosecutors was followed by the State Government. The petitioner himself was appointed as a public prosecutor after consultation with the High Court. Similarly the Additional Public Prosecutors in spite of the said amendment continued to be appointed after consultation with the High Court. It was for the first time that after terminating the services of the petitioner, respondent No. 3 was appointed without consultation with the High Court.
59. No doubt the words ‘after consultation with the High Court’ were deleted from the provisions contained in Section 24 of the Code of Criminal Procedure but Section 24 of the Code of Criminal Procedure as existing does not forbid consultation with the High Court Chapter V, para 4.02 of the L. R. Manual itself provides that while making such appointment, namely, Chief Standing Counsel and the Standing Counsel the State Government may if consider necessary take into consideration the views of the Advocate General, or the Chief Justice or any other Judges of the High Court or any of the Committee that may be constituted for purposes of such appointment shall be notified in the Official Gazette.
60. The conditions of service of Government Advocate or Additional Government Advocate conducting criminal matters in High Court are the same as that of Chief Standing Counsel and Standing Counsel.
61. If the view of the provisions contained in the L. R. Manual the erstwhile learned Advocate General made a solemn statement before this Court that in future when the question of appointment of public prosecutors will arise whether directly or by promotion from the post of Additional Public Prosecutor the State Government, shall make the appointment in accordance with Section 24 of the Code of Criminal Procedure after consultation with the High Court, the State Government, which is the creation of the Constitution cannot wriggle out from the statement made by a constitutional authority, acting on be-half the State by stating that such consultation would not be required.
62. According to the paragraph 6.02 of Chapter VI of the L. R. Manual the State Government may in consultation with the Advocate General appoint such number of Brief Holders from amongst the practising Advocates in the High Court to conduct civil and criminal cases but under Chapter V of the L.R. Manual the State Government has been vested with a discretion to ascertain the views of the Advocate General or High Court while making such an appointment.
63. The words “may, if considered necessary” occurring in paragraph 5.02 of the L. R. Manual whether casts an obligation on the part of the State Government to consult the Advocate General, the Chief Justice or any of the Judges of the High Court or to take into consideration the views of any Committee “that may be constituted for the purpose” is to be considered in view of the law laid down by the Hon’ble Supreme Court.
64. It is well settled that “may” never can mean “must” or “shall” so long as the English language retains its meaning, but if it gives a power, then a question may arise that in what cases, a Court can read “must” or “shall” into the meaning of word “may”. Enabling words are construed as compulsory whenever the object of the power to effectuate a legal right and “may” some times mean “shall”.
65. Regarding the Gazetted Officers in U. P. there exists a rule, according to which the Gazetted Government servant may request that the enquiry against him should be held by an Administrative Tribunal. In the State of U.P. v. Jogendra Singh AIR 1963 SC 1618, a point arose before the Hon’ble Supreme Court for decision regarding the interpretation of Rule 4 which reads as under:
4.(1) The Governor may refer to the Tribunal cases relating to an individual Government servant or class of Government servants or Government servants in a particular area only in respect of the matters involving :-
(a) Corruption;
(b) failure to discharge duties properly;
(c) irremedial general inefficiency in a public servant of more than ten years standing; and
(d) immorality.
(2) The Governor may, in respect of a gazetted Government servant on his request, refer his case to the Tribunal in respect of matters referred to in sub-rule (1).
66. Interpreting Rule 4(2) Hon’ble Gajendra-gadkar, J. speaking on behalf of his brother Judges observed in paragraph 8 of the Court :
Rule 4(2) deals with the class of gazetted Government servants and gives them the right to make a request to the Governor that their cases should be referred to the Tribunal in respect of matters specified in clauses (a) to (d) of sub-rule (1). The question for our decision is whether like the word “may” in Rule 4(1) which confers the discretion on the Governor, the word “may” in sub-rule (2) confers the discretion on him, or does the word “may” in sub-rule (2) really mean “shall” or “must”? There is no doubt that the word “may” generally does not mean “must” or “shall”. But it is well settled that the word “may” is capable of meaning “must” or “shall” in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word “may” which denotes discretion should be construed to mean a command. Sometimes, the Legislature uses the word “may” out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. In the present case, it is the Context which is decisive. The whole purpose of Rule 4(2) would be frustrated if the word “may” in the said rule receives the same construction as in sub-rule (1). It is because in regard to gazetted Government servants the discretion had already been given to the Governor to refer their cases to the Tribunal that the rule making authority wanted to make a special provision in respect of them as distinguished from other Government servants falling under Rule 4(1) and Rule 4(2) has been prescribed, otherwise Rule 4(2) would be whole redundant. In other words, the plain and unambiguous object of enacting Rule 4(2) is to provide an option to the gazetted Government servants to request the Governor that their cases should be tried by a Tribunal and not otherwise. The rule making authority, presumably thought that having regard to the status of the gazetted Government servants it would be legitimate to give such an option to them. Therefore, we feel no difficulty in accepting the view taken by the High Court that Rule 4(2) imposes an obligation on the Governor to grant a request made by the gazetted Government servant that his case should be referred to the Tribunal under the Rules. Such a request was admittedly made by the respondents and has not been granted. Therefore, we are satisfied that the High Court was right in quashing the proceedings proposed to be taken by the appellant against the respondent otherwise than by referring his case to the Tribunal under the Rules.
67. In Shri Rangaswami, the Textile Commissioner v. Sagar Textile Mills (P.) Ltd. AIR 1977 SC 1616, the Hon’ble Supreme Court had an occasion to interpret clause 20 of the Cotton Textiles (Control) Order, 1948 which read as under:
20(1). The Textile Commissioner may from time to time issue directions in writing to any manufacturer or class of manufacturers or the manufacturers generally regarding the classes or specifications of cloth or yarn, and the maximum or the minimum quantities thereof which they shall or shall not produce during such periods as may be specified in the directions, and they shall comply with such directions.
20(2). In the exercise of the powers conferred upon him by sub-clause (1) the Textile Commissioner shall have regard to the capacity of the producer to produce cloth and yarn of different descriptions or specifications and to the needs of the general public.
68. The question for determination before the Hon’ble Supreme Court was the Textile Commissioner decides to issue appropriate directions to any manufacturer or class of manufacturers, it is obligatory upon him to specify therein the period for which the directions will remain in operation.
69. Relying upon the observations of the Hon’ble Supreme Court made in the State of U.P. v. Jogendra Singh AIR 1963 SC 1618 (supra) it was observed that it is well settled that the word “may” is capable of meaning “must” or “shall” in the light of the context and that whether it is conferred upon the public authority coupled with an obligation the word “may” which denotes discretion should be considered to mean a command.
70. In Keshav Chandra Joshi v. Union of India AIR 1991 SC 284, the Hon’ble Supreme Court had to interpret Rule 27 of the U.P. Forest Service Rules, 1952 which empowered the Governor, that if he was satisfied that the operation of any rule regarding conditions of service of the members, caused undue hardship in a particular case, he may consult the Public Service Commission; notwithstanding anything contained in the Rules and dispense with or relax the requirement of the condition of service and extend the necessary benefit, as is expedient so as to relieve hardship and to cause just and equitable results. While interpreting the said rule the Hon’ble Supreme Court observed that the word “may” consult the commission has been used in the context of discharge of statutory duty. The Governor is obliged to consult the Public Service Commission. Therefore, the word “may” must be construed as to mean “shall” and it is mandatory on the part of the Governor to consult the Public Service Commission before exempting or relaxing the operation of Rule regarding conditions of the service of a member to relieve him from undue hardship and to cause just and equitable results.
71. In the background of the decision of the Hon’ble Supreme Court we are of the view that the principle of statutory interpretation of any provision of the Act or the Rule, regarding the meaning of the word “may” will also be applicable to the Government Orders like L. R. Manual, were in any Government Order a discretion is conferred upon the State Government, coupled with an obligation, the word “may” occurring in paragraph 6.02 of Chapter VI of the L. R. Manual, which denotes discretion should be construed to mean a command. The word “may” occurring in the said paragraph in L. R. Manual was used out of respect, regard and deference to high status of the authority on whom the power and the obligation were conferred and imposed.
72. There is another aspect of the matter which requires consideration in view of the Government Order dated 18-10-1976 regarding the eligibility, appointment and tenure of law officers of the State working in the High Court. The revenue portion of which reads as under :
The Governor may appoint any qualified legal practitioner as a law officer and before making any such appointment he may, if he thinks fit, take into consideration the views of the Advocate General or of the Chief Justice or any other Judge of the High Court or of any committee that the Governor may constitute for the purpose and for appointment on the criminal side shall also consult the High Court. All appointments shall be notified in the official gazette.
(Emphasis added)
73. The aforementioned underlined portion of the office memorandum indicates that for appointment on criminal side consultation of the High Court is mandatory. But earlier part of the para which provides for taking the views of the Advocate General, Chief Justice or any other Judge of the High Court or of any Committee, that the Governor may constitute for the purpose, is confined to the State Law Officers other than the criminal side.
74. Para 21.03 of Chapter XXI provides that the appointment of the Public Prosecutor and Additional and Special Public Prosecutor in the High Court and for the districts shall be made by the judicial department in accordance with Section 24 of the new Code. The office memorandum dated 18-10-1976 gives effect to paragraph 21.03, Chapter XXI of the L. R. Manual which has incorporated Section 24, Cr. P. C, 1973 as it was, on the date when Chapter XXI was inserted. It is a case of incorporation of Section 24 of Criminal Procedure Code, 1973, as it was, then in force. Prior to deletion of the words “after the consultation of the High Court etc.” in Section 24 of Cr.P.C. by a subsequent Act, namely U.P. Act XVIII of 1991, the para 21.03 is not automatically affected.
75. If it is assumed for the sake of argument that the Government Order dated 18-10-1976, after the deletion of words “after consultation with the High Court” in Section 24, Cr.P.C. by U. P. Act XVIII of 1991 is rescinded, even then, we have to examine as to whether paras 4.01 and 4.02 of Chapter V of the L.R. Manual can escape the sweep of the principles of fairness, justness, reasonableness, enshrined in Article 14 of the Constitution. Dealing with this anomalous situation Hon’ble Sawant, J. on behalf of the Bench in U. P. State Law Officers Association (AIR 1994 SC 1654) (supra) observed in para 19 of the report:
It (State Government) may or may not ascertain the views of any of them, while making the said appointments. Even where it chooses to consult them, their views are not binding on it. The appointment may, therefore, be made on consideration other than merit and there exists no provision to prevent such appointments. The method of appointment is indeed not calculated to ensure that the meritorious alone will always be appointed or that the appointments made will not be on considerations other than merit. In the absence of guidelines the appointment may be made purely on personal or political considerations, and be arbitrary.
76. It is thus, evident that para 4.01 and 4.02 of Chapter V of L.R. Manual arm the State Government with unbridled, uncannalised, vast, indefinite and sweeping powers, enabling the State Government to make appointment of Law Officers, who are also the Law Officers of the Court, whose duty is to assist the Court in dispensation of justice, on consideration other than merit may be on purely personal or political considerations. Whether such arbitrary administrative instructions or directions as contained in paras 4.0l and 4.02 of Chapter V of the L.R. Manual having no guidelines can escape the amplitude of Article 14 of the Constitution, which is the sworn enemy of arbitrariness? The only possible answer will be that the aforementioned paragraphs will be hit by Article 14 of the Constitution.
77. In such a complex situation, it depends upon the wisdom of the Court either to declare such administrative instruction as ultra vires or save it by reading into the alleged permissible directory or discretionary powers, a mandatory power. Reasonableness, fairness, justness, rationality, Audi Alteram Partem Rule are the different facet of Article 14 of the Constitution. If any law or administrative instructions or action are benefit of these cardinal principles, that would be violative of Article 14 of the Constitution and such a law, administrative direction or order cannot be saved from being declared as ultra vires.
78. Reasonable, fairness, justness, rationality Audi Alteram Partem Rule are identical different facet of Article 14 of the Constitution. These principles cover the same field. They are like twin sisters. If any law or Government order or action are bereft of these cardinal principles that will be violative of Article 14 of the Constitution which cannot be cribbed or cabined. Such a law, Government Orders, administrative instructions, directions or action cannot be saved from being declared as ultra vires.
79. Law Officers are one of the important wheel of the chariot, driven by the Judges to attain the cherished goal of human being to secure justice against the wrong doers. The main object of the State is to curb the crime, investigate and prosecute the offenders and punish them, with a view to maintain law and order, amity and harmony, tranquillity and peace. Various provisions of Code of Criminal Procedure Legal Remembrancer Manual provide the manner and procedure by which public prosecutor should be appointed and provide assistance to the Courts. The object of the Code and the Manual is to appoint the best among the lawyers as public prosecutor to provide assistance to the Court. The people have the vital interest in the matter.
80. If the appointment of public prosecutor in the High Court would be made after consultation with the High Court then it would not be permissible for any person to assail the same on the ground that such appointment was made without consideration of merit, because neither the Chief Justice nor his brother Judges or Administrative Committee of the High Court would ever allow a person to hold such an office, if he or she does not possess legal acumen, knowledge of law and experience of conducting cases. Judges are the best persons to Judge the merit of lawyers who appear before them. Such an appointment could not be deemed to be a product of operation of the spoils system or an arbitrary appointment because the words ‘after consultation with the High Court’ provide sufficient guidelines for appointment on merits.
81. The famous words of Judge Learned Hand of the United States of America that “…It is true that the words used even in their Literal sense, are the primary and ordinarily the most reliable source of interpreting the meaning of any writing; be it a statute, a contract or any thing else. But it is one of the surest index of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish whose sympathetic and imaginative discovery is the surest guide to their meaning.
82. As for reading for the principles of natural justice into a rule where the statute did not provide for, a beginning was made in Kraipak v. Union of India AIR 1970 SC 150, wherein it was indicated that if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the Court cannot ignore the mandate of the legislature or the statutory authority, and read into the concerned provision the principles of natural justice.
83. In Olga Telis v. Bombay Municipal Corporation 1985 Suppl (2) SCR 51 : AIR 1986 SC 180 while dealing with the provisions of Section 314 of the Bombay Municipal Corporation Act, in which vast powers were given to the Municipal Corporation to remove pavement dwellers without any show cause notice. Hon’ble Chandrachud, C. J. (as he then was) speaking for the Constitutional Bench held that “a departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence.
84. Similarly in C.B. Gautam v. Union of India (1992) 6 JT (SC) 78 Hon’ble Supreme Court read the principles of natural justice into the provisions of 269UD of the Income-tax Act which vested the authorities an obligation to compulsorily purchase any land or building which was sold on a lesser consideration to evade payment of Income-tax.
85. As we have already stated that the principles of natural justice, fairness and justness covers the same field which are embedded in Article 14 of the Constitution. Fairness and justness can also be read into a provision of law, in the absence of which, that law would become ultra vires. What applies to any statute equally applies to the Government Orders, where by reading the principles of fairness and justness that order can be saved from being declared as arbitrary. If we do not read into the provisions of Chapter V of the L. R. Manual that the State is under an obligation to consult the Advocate General and the High Court, such a provision for appointment of public prosecutors shall be bereft of any guidelines and will suffer from arbitrariness and hit by Article 14 of the Constitution. May be for that reason the erstwhile Advocate General made a solemn statement before this Court that when the appointment of any public prosecutor would be made in future whether directly or by promotion from the post of Additional Public Prosecutor the State Government shall make appointment after consultation with the High Court. It is heartening to note that the practice of appointing Public Prosecutors or Additional Public Prosecutors after consultation with the High Court continued till 6-11-1997 when the State Government removed the petitioner appointed respondent No. 3 as Public Prosecutor, without consultation with the High Court.
86. The petitioner’s appointment cannot be said to be the product of the operation of the spoils system. His appointment as a Public Prosecutor by the State Government was made after consultation with the High Court. It cannot be said to be an arbitrary appointment because his knowledge of law, experience and merit was considered by the High Court and thereafter the State Government appointed him but certainly the appointment of respondent No. 3 was the product of the operation of the spoils system and his appointment was arbitrary in nature inasmuch as his knowledge of law, experience and merit was not required to be scrutinised even by the Advocate General and the High Court.
87. A Public Prosecutor is more than an advocate of the litigant. He holds a public office. His duties are of public nature. It is not only the State but also the public at large who is concerned in the manner in which the Government i.e. Public Prosecutor discharges his duties. If he fails to perform his duties properly then the offenders who deserve punishment would be free from the clutches of law. He is not only accountable to the State but also to the public. He is a responsible law officer of the Court. It is his duty to marshal correct facts and law before Court so that the Court may dispense with justice. If such appointment would be the product of the spoils system the rule of law shall be, the ultimate victim, the dispensation of justice shall or in jeopardy and the tears from the eyes of the victim and his or her kith and kin and other relations can never be wiped out. Chapter V of the L. R. Manual can only be saved from the vice of arbitrariness, if this Court read into the said instructions that it is obligatory on the part of the State to make such an appointment after consultation with the High Court.
88. However, the view which we have taken is confined to the office of the Public Prosecutor, Additional Public Prosecutor or Deputy Public Prosecutor working in the High Court. As far as the appointment to the office of the Chief Standing Counsel and Standing Counsel etc. are concerned, that must be done with the consultation of the Advocate General who being a constitution authority cannot be expected to recommend a person who does not possess legal knowledge and necessary experience to appear on be-half of the State. It is well settled that an authority who is vested with a right to exercise his discretion should exercise the same intelligently properly, fairly and justify. An authority much less than the State Government cannot exercise its discretion arbitrarily. Chapter V of the L.R. Manual vests a discretion to the State Government to appoint Law Officer. The State is expected to exercise that discretion in a proper, fair and just manner and for that reason it is provided in the L. R. Manual that while making such an appointment the State Government may consult the Advocate General, the Chief Justice of the High Court and his brother Judges. Even after the amendment in Section 24 of the Code of Criminal Procedure such a consultation has not been ruled out. Chapter V of the L.R. Manual provides for consultation, although not in mandatory form, but if such an appointment would be the product of the spoils system and would be made in an arbitrary manner the process of such an appointment would suffer from the vice of arbitrariness. In a democratic set up accountability and transparency is the hallmark of the system. A message from the corridors of Secretariat cannot be permitted to go the people that the service of such persons holding public offices and discharging public duties can be terminated and persons are appointed in an arbitrary manner for political considerations due to the change of Government, which is inevitable in a democratic set up. After the decision in the U. P. State Law Officers Association (AIR 1994 SC 1654) (supra) it cannot be said that the scope of judicial review has been completely blocked or ruled out. The U. P. State Law Officers Association (supra) arose because the State Government removed 26 Law Officers whose term had expired. Their terms were not renewed. The terms of their appointment contained a condition that notwithstanding the period for which they were appointed they could be removed any time, without assigning any reason whatsoever. The facts of the present case are distinguishable. Here the petitioner was appointed for a fixed tenure i.e. three years. The appointment order did not contain any condition that he could be removed at any time without assigning any reason whatsoever, although the L. R. Manual confers upon the Government power to terminate such appointments without notice or without assigning any reason. Considering the fact that this sort of professional engagement of the petitioner which is statutory in nature, where he holds a public office and discharges public duties for a fixed period this Court has also to consider whether such an engagement can be terminated at will in an arbitrary manner.
89. It cannot be said that after the decision in the State of U.P. v. U.P. State Law Officers Association AIR 1994 SC 1654 (supra), the scope of judicial review has been completely ruled out. In Harpal Singh Chauhan v. State of U.P. AIR 1993 SC 2436 which also pertains to a case of Assistant District Government Counsel (Crl.), the Hon’ble Supreme Court in paragraph 12 of the report indicated :
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 v. Bharat Kala Bhandar Ltd. AIR 1967 SC 1766; Rohtas Industries Ltd. v. S.D. Agarwal AIR 1969 SC 707; Purtabpur Company Ltd. Cane Commissioner of Bihar AIR 1970 SC 1896 and M.A. Rasheed v. State of Kerala AIR 1974 SC 2249, it is almost settled that, although power has been vested in a particular authority, in subjective terms, still judicial review is permissible.
90. In paragraph 14 of the report it was observed that 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 and Sessions Judge, simply made some vague and general comments against the appellants, which cannot be held to be the compliance of the requirement of Sub-section (4) of Section 24.
91. In paragraph 17 of the report it was further observed :
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 fair 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 Police v. Evans (1982) 3 All ER 141 :-
The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair 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.
92. Thereafter it was observed in paragraph 18 of the report:
The District Magistrate simply made some general comments in respect of the appellants, when the District and 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.
93. After the decision of the Hon’ble Supreme Court in the U. P. State Law Officers Association (AIR 1994 SC 1654) (supra) the scope of judicial review was again examined by the Hon’ble Supreme Court in the State of U.P. v. Ramesh Chandra Sharma AIR 1996 SC 864 : 1996 All LJ 407, wherein it was observed :
The State action of refusing renewal of appointment of District Govt. Counsel can be quashed if it is arbitrary. Where the State Government refused to consider the case of some District Govt. Counsel for renewal of their term on the ground that there was no recommendation made by the District authorities for making the renewal as required by para 7.08 but in fact the report of the District Officer was favourable to them and the District Judge had really recommended renewal of their term, the only ground on which the State Government sought to support its action was non-existent in the record. Thus the action of refusing renewal was arbitrary and on a non-existent ground.
94. It is thus evident that even all such professional engagements can be subjected to judicial review if the action is arbitrary and non-existent ground.
95. The scope of judicial review has been well defined in (1947) 2 All ER 680 which is known as Wednesbury Principles and Chief Constable of the North Wales Police v. Evans (1982) 3 All ER 141 (154); Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1947) 2 All ER 680 observed :
…It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word ‘unreasonable’ in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority…In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another.
It was further observed :
…it must be proved to be unreasonable in the sense that the Court considers it to be a decision that no reasonable body can come to. It is not what the Court considers unreasonable…. The effect of the legislation is not to set up the Court as an arbiter of the correctness of one view over another.
96. As far as in CCSU case, (1984) 3 All ER 935 the principles of judicial review of administrative action were further summarised by Lord Diplock, as illegality, procedural impropriety and irrationality. It was further observed :
…Judicial review has I think, developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety.’
Explaining what ‘irrationality’ means, Lord Diplock rules :
By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.
97. Hon’ble S. Mohan, J., speaking for the Bench which consisted of Hon’ble M. N. Venkatachaliah, C. J. (as he then was) and Hon’ble M.M. Punchi, the present Chief Justice of India, in Tata Cellular v. Union of India (1994) 6 SCC 651 (691) : AIR 1996 SC 11 (34) relying upon the propositions made in the Wednesbury (1947 (2) All ER 680) and CCSU (1984 (3) All ER 935) observed in paragraph 77 of the report:
The duty of the Court is to confine itself to the question of legality. Its concern should be :
(i) whether a decision making authority exceeded its powers?
(ii) committed an error of law,
(iii) committed a breach of the rules of natural justice,
(iv) reached a decision which no reasonable tribunal would have reached or,
(v) abused its powers.
Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under :
(i) Illegality : This means the decision maker must understand correctly the law that regulates his decision making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
98. In paragraph 83 of Tata Cellular (AIR 1996 SC 11) (supra) the Hon’ble Supreme Court dealt with the latest English decisions in Ashbridge Investments Ltd. v. Minister of Housing and Local Government (1965) 3 All ER 371, wherein it was observed that if the decision making body is influenced by considerations which ought not to influence it, or fails to take into account matters which it ought to take into account, the Court will interfere. In (1968) 1 All ER 694, it was observed that in exercising these powers, the Courts will take into account any reasons which the body may give for its decision. If it gives no reasons in a case when it may reasonably be expected to do so, the Courts may infer that it has no good reason for reaching its conclusion, and act accordingly (See Padfield case, 1968 AC 997 Pp. 1007, 1061). In Ram and Shyam Co. v. State of Haryana (1985) 3 SCC 267, 268-69 : AIR 1985 SC 1147; Haji T.M. Hassan Rawther v. Kerala Financial Corporation (1988) 1 SCC 166 (173) : AIR 1988 SC 157, 161 and Fasih Chaudhary v. Director General Doordarshan (1989) 1 SCC 89 : AIR 1989 SC 157 fair play in action without any aversion, malice or affection, favouritism or nepotism was emphasised by the Hon’ble Supreme Court.
99. In contractual sphere, as in all other State actions, Hon’ble Supreme Court in Food Corporation of India v. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71 : AIR 1993 SC 1601 insisted that the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. It was observed that there is no unfettered discretion in public law. A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is ‘fair play in action.’
100. In nutshell, the principles deducible from the various pronouncements of the Hon’ble Supreme Court although imposes judicial restraint in administrative action and the Court does not sit as a Court of appeal but merely reviews the illegality made in the decision-making process. But every decision would be tested by the application of Wednesbury principles of reasonable.-ness (including its other reasonableness and principles of irrationality as enunciated in Chief Constable of the North Wales Police v. Evans 1982 (3) All ER 141 (supra) which should be free from arbitrariness not affected by bias or actuated by mala fides.
101. In the light of the aforesaid principles we have to test the present case on the scale of Article 14 of the Constitution, as arbitrariness, colourable exercise of power, violation of the principles of natural justice are the sworn enemies of equality clause as enshrined in Article 14, in which fairness, justness, reasonableness are embedded.
102. The impugned orders contained in Annexures 2 and 3 to the writ petition only indicate that 8 Law Officers including the petitioner were removed and respondent No. 3 was appointed as Public Prosecutor for one year with a rider that the State Government at any time without indicating any reason can terminate such an appointment. The orders do not indicate any reason for terminating the services of 8 Law Officers including the petitioner.
103. We need not cite precedents to support the view that whenever, by the State action any party is adversely affected, it is incumbent upon the State to indicate reasons because this principle has long been settled. Often it happens that the order does not indicate any reason to form the basis of the decision.
104. In Kumari Shrilekha Vidyarthi v. State of U.P. 1993 All LJ 4 (SC) (supra) the question as to whether the reason must be indicated in the file or not was answered. In paragraph 13 of the report which is reproduced below it was observed :
The expression ‘at any time’ merely means that the termination may be made even during the subsistence of the term of appointment and ‘without assigning any cause’ 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’. It merely means that the reason for which the termination is made need not be assigned or communicated to the appointee. It was held in Liberty Oil Mill v. Union of India AIR 1984 SC 1271 that the expression ‘without assigning any reason’ implies that the decision has to be communicated, but reasons for the decision have not to be stated; but the reasons must exist, otherwise, the decision would be arbitrary. The non-assigning of reasons or the non-communication thereof may be based on public policy, but termination of an appointment without the existence of any cogent reason in furtherance of the object for which the power is given would be arbitrary and, therefore, against public policy. Clause (3) of para 7.06 must, therefore, be understood to mean that the appointment of a District Government Counsel is not to be equated with appointment to a post under the Government in the strict sense, which does not necessarily mean that it results in denuding the office of its public character; and that the appointment may be terminated even during currency of the term by only communicating the decision of termination without communicating the reasons which led to the termination. It does not mean that the appointment is at the sweet will of the Government which can be terminated at any time, even without the existence of any cogent reason during the subsistence of the term.
105. In C.B. Gautam (1992 (6) JT (SC) 78) (supra) Hon’ble Supreme Court observed that recording of reasons which lead to the passing of the order is basically intended to serve a two fold purpose:
(1) that the “party aggrieved” in the proceeding before acquires knowledge of the reasons and, in a proceeding before the High Court or the Supreme Court (since there is no right of appeal or revision), it has an opportunity to demonstrate that the reasons which persuaded the authority to pass an order adverse to his interest were erroneous, irrational or irrelevant, and
(2) that the obligation to record reasons and convey the same to the party concerned operates as a deterrent against possible arbitrary action by the quasi judicial or the executive authority invested with judicial powers.
106. However, the Hon’ble Supreme Court observed that it may be permissible to record reasons separately but the order would be an incomplete order unless either the reasons are incorporated therein or are served separately along with the order on the affected party.
107. It was submitted that as the impugned termination of the services of the petitioner before the end of three years indicated no reason, hence the action of the State Government was arbitrary.
108. In view of the law laid down in several cases by the Hon’ble Supreme Court, the argument of Mr. W.H. Khan, learned counsel for the petitioner, is that during the substance of the term the appointment of the petitioner which was in the nature of a tenure appointment without following the principles of audi alteram partem the impugned order cannot be sustained. The principles of service jurisprudence that during the subsistence of the term the appointment cannot be terminated without following the rule of audi alteram partem is not applicable to such professional engagement although such an action can be tested on the scale of Article 14 of the Constitution, but if such a person has been removed on the basis of charges, he ought to have been made aware of the charges to enable him to give his version.
109. On the direction of this Court the learned Standing Counsel produced before this Court the relevant record. From the note on the file it transpires that most of State Law Officers lacked the required ability and complaints have been received. The advocate General was consulted and he suggested and recommended the termination of their services. It was also indicated that complaints had been received against Shri Vijay Shankar Mishra, the Public Prosecutor. The file which has been produced has no index or page numbers. Loose papers are contained in the file.
110. In the counter-affidavit it has been indicated that the Government had to relieve the counsel as they had lost the trust and confidence in the counsel, when the complaints started pouring against them including the petitioner. In that regard a mention was made about the Criminal Revision bearing No. 146/94 (State of U.P. v. Parehat Industries Pvt. Ltd.) which was filed by the State of U.P. Notices were issued by the High Court. An application was moved on 24-8-1994 by the petitioner for the withdrawal of the said Criminal Revision without a written order from the State Government. In a Bail Application bearing No, 12855/95, which was preferred by one Katnta Singh, Superintendent of Naini Jail, who was arrested under Section 5/2 of the Prevention of Corruption Act, the petitioner leaked vital information to the counsel for the accused and a complaint in that regard was sent by him to the Additional Director of Vigilance which was brought to the notice of the State. On 2-9-1996 and 9-11-1996 Secretary of Rashtriya Jan Jagaran Manch also sent complaint to the Advocate General of the Government. A complaint by one Bhaiya Lal Kashyap, a practising advocate, belonging to Bahujan Sarnaj Party, was also received against the petitioner. A Criminal Misc. Application bearing No. 6487/87 was filed by Dr. B.P. Neelratna who is a senior I.A.S. Officer and was prosecuted under the Prevention of Corruption Act. It was averred that with the connivance of the petitioner on 4-10-1997 the said I.A.S. Officer obtained a stay order though it was a holiday. The petitioner did not effectively oppose the said Criminal Misc. Application in the light of the law declared by this Court as well as by the Apex Court. Similarly Shri Brijendra, a former Principal Secretary of the Government, who was being prosecuted, filed a Criminal Misc. Application bearing No. 6588/97. The petitioner sent a wireless message at Agra. As such no counter-affidavit could be filed within time. Consequently, stay order was granted in favour of the said Brijendra. It was pointed out that one Shri R.P. Tyagi who was also prosecuted in the same lot filed Criminal Misc. Application bearing No. 7221/97 which was dismissed by an Hon’ble Single Judge of this Court. It was urged that if the petitioner would have brought that decision to the knowledge of the High Court the Criminal Misc. Application preferred by Shri Brijendra would have also been dismissed by the Court.
111. It was averred in paragraph 12 of the counter-affidavit that due to total erosion of trust and confidence in the working of Shri Vijay Shankar Mishra, the petitioner, but considering the high office of Government Advocate, taking a compassionate view of Government it was thought desirable to dispense with his engagement by invoking the doctrine of pleasure, it was thought desirable not to indulge in detailed enquiry, show cause notice and other procedure involving much time, which may have resulted in even greater prejudice to the petitioner as also to public interest, hence his services were dispensed with.
112. In paragraph 14 of the rejoinder-affidavit it was averred that the trust and confidence must not be confused with mere closeness with the political power that be. The existence of confidence or loss of confidence must be judged by reference to the action of the person holding a public office and not by his closeness to the political ruler of the State. Mere change of the Government is wholly irrelevant to justify the removal of the Public Prosecutor, Here it is important to mention that the political Government in the State changed after Shri Kalyan Singh became Chief Minister on 21-9-1997, and thereafter when support by B.S.P. was withdrawn, he was required to prove majority and thereafter the new Ministers were inducted on 28-10-1997 and portfolios were distributed on 1-11-1997. The petitioner who was continuously working since 6-8-1993 as Assistant Public Prosecutor from 1-1-1996 as Public Prosecutor and whose work and conduct was appreciated by four successive Advocate Generals, the Law Department of the Government, and the Court was removed without any cause or justifiable material on 6-11-1997 and respondent No. 3 whose name was already picked up was appointed to replace the petitioner. The removal of the petitioner is merely because of change of political power and to any misconduct or incompetency.
113. Regarding withdrawal of Criminal Revision bearing No. 146/94 it was stated in the rejoinder-affidavit that the papers referred to in paragraph 7 of the counter-affidavit were introduced for the first time in the counter-affidavit. No such notice of any complaint was given by the Advocate General or the Government or the Law Secretary to the petitioner. The petitioner was appointed as Additional Public Prosecutor by the Government on 6-8-1993 (not in August 1994 as wrongly mentioned in the writ petition) after consultation with the High Court and if any complaint caused any doubt in the mind of the then Law Secretary Shri A.K. Srivastava (now elevated to the Bench) or Advocate General of the Government the term of the petitioner as Public Prosecutor would not have been extended for three years by the Government Order dated 31-8-1994. There is nothing on record to show the genuineness of the complaint or source or identity of the person who made the complaint. Under the Manual of Government Orders anonymous complaints are not taken notice of. The Under Secretary Shri N.D. Chaubey did not inform how he got those records of the complaints when the Government’s own case was that those complaints were not the basis of the order. The order of removal is an omnibus order, terminating the services of 8 Law Officers at Allahabad and 8 Law Officers at Lucknow. The order of removal of the petitioner did not state that removal was based on the complaints, now sought to be introduced through counter-affidavit. The law is settled that the order has to be justified on the grounds mentioned in the order. The reasons and grounds cannot be supplemented by the counter-affidavit. It was further submitted that at the relevant time Shri Ravindra Singh was the Public Prosecutor/Government Advocate and he had asked the petitioner to prepare application for the withdrawal of the Criminal Revision No. 1246/94 as the State Government had decided to withdraw the same and the withdrawal application was prepared by the petitioner but not moved by him. It was filed by the office under the directions of Shri Ravindra Singh, the then Public Prosecutor and was pressed by him or some Additional Public Prosecutor and not by the petitioner. The Under Secretary who had sworn the affidavit made an attempt to mislead the Court that withdrawal was made without the permission of the Government. There was in fact a Government Order dated 24-8-1994 of the Law Department permitting for the withdrawal of the Criminal Revision. All these facts were in the knowledge of the Law Department and were not considered proper when the petitioner’s name was recommended for appointment on the post of Public Prosecutor. After consultation with the High Court, the petitioner was appointed as Public Prosecutor by order dated 1-1-1996, for a fixed term of three years, by the Government and no condition was attached that the term will be curtailed without any notice or without assigning any reason. A photostat copy of the letter dated 24-8-1994 of the Joint L.R/Joint Secretary of the U.P. Government has been filed as Annexure R.A. 2A (which indicates that the letter for withdrawal was sent by the Joint L.R./Joint Secretary to the Public Prosecutor for withdrawal of Criminal Revision No. 146/94 (State of U.P. v. Parehat Industries Pvt. Ltd.).
114. Regarding leakage of certain information to the counsel for the accused in Bail Application No. 12855 of 1995 the fact of leakage was denied and it was averred that the petitioner strongly opposed the Bail Application and thereafter dictated a strong counter-affidavit opposing the Bail Application. The petitioner argued the Bail Application and the Bail Application was rejected. The alleged complaint addressed to the Additional Director of Vigilance by the D.I.G., Vigilance is a manipulated document. It has not been shown or stated as to what information the petitioner leaked, when the Additional Director brought the said letter to the notice of the Government. It was obvious that this manipulated letter dated 20-12-1995 was tried to be introduced at the stage of counter-affidavit. The petitioner was appointed as Public Prosecutor on 1-1-1996 after the alleged letter, and no notice of the alleged letter was taken by any one till the order of removal dated 6-11-1997.
115. Regarding the complaint alleged to be Cri. L. J. sent by Rashtriya Jan Jagran Manch and one Bhaiya Lal Kashyap against the petitioner to the Advocate General and the Government it was averred that the documents annexed as Annexures C.A. 9 and 10 did not show as to how it reached to the Under Secretary or the Law Department. Assuming that they were complaints, they were anonymous and no enquiry had been made by the Advocate Genera! or by the Government. A perusal of those complaints showed that they were the handy-works of some Neta type person who was acting at the behest of daily wages employees who were opposing the move of the Government and Advocate General to make fresh appointments on the posts which were newly created, in accordance with law on which the daily wagers wanted their appointments from back door. The petitioner was not the appointing authority and admittedly no appointment has been made till date.
116. In the matter relating to Dr. B.P. Neelaratna, as I.A.S. Officer, it was submitted in the counter-affidavit that Dashehra vacation started from 3-10-1997. On the request of the learned counsel for the applicant the Hon’ble Chief Justice constituted a Special Bench of Hon’ble B. K. Roy, J., to hear the matter on 4-10-1997 which was holiday. The petitioner was served with a notice on 4-10-1997 at 9.40 a.m. The petitioner immediately informed Shri Khem Karan, the Principal Secretary of Law on telephone and proceeded to the residence of the Hon’ble Judge to oppose the application. The matter was argued at length. The petitioner opposed the application with tooth and nail. However, the Hon’ble Judge passed the order dated 4-10-1997, true copy of which was attached to the rejoinder-affidavit as Annexure R.A.3 which is reproduced as under :
Heard the learned counsel at length. Perused the application along with each affidavit and annexures. It has been submitted that applicant happens to be Senior I.A.S. Officer and presently posted as Additional Resident Commissioner of Government of UP. in New Delhi. It has been submitted that his wife happens to be Chief Medical Officer in Safdarganj Hospital. New Delhi. It has been submitted there were Income-tax raids in his father-in-law house and in his brother-in-law house and also in the house owned by him. F.I.R. has been lodged on 30-9-1997 under Section 13(1)(E) read with Section 13(2) of the Prevention of Corruption Act at Agra over which a case Crime No. 259 of 1997 under the aforesaid Sections had started and investigation is in progress. It has been submitted that due to mistake on the part of the investigation agency prima facie all the assets which belonged to different persons were treated to be the assets of the applicant, resulting in misconception of facts and that prompted to lodge F.I.R. by the authority concerned. It has been submitted the detail of the investigation as far as it has been done should come to the knowledge of the Court which may enable Court to appreciate whether prima facie case as lodged has been found out during investigation.
The learned Government Advocate strongly opposed the prayer of the applicant and submitted that any interference at this stage may not be done.
In view of the fact that F.I.R. was lodged only on 30-9-1997 and the investigation is in its initial stage. It has been submitted that the raids made by the Income-tax Department are different chapters altogether for dealing the matter under the Income-tax Act itself. It may take action under Section 276A of the Income-tax Act after thorough enquiry into the matter but the F.I.R. has been lodged by Vigilance Department on the basis of some information. Learned Government Advocate may file counter-affidavit within 15 days. Rejoinder affidavit may be filed within 10 days thereafter.
Let it be listed/put up on 4-11-1997 till that date applicant may not be arrested in connection with Crime No. 259 of 1997 under Sections 13(1)(E) and 13(2) of the Prevention of Corruption Act, 1988, but he shall make himself available to the I.O. for interrogation and he shall not leave India without prior permission of the I.O. Court concerned.
117. Regarding the matter pertaining to Shri Brijendra, former Principal Secretary of the Government, it was averred in the rejoinder-affidavit that the petitioner neither appeared not handled the Criminal Misc. Application bearing No. 6588/1997 (Brijendra v. State of U.P.). The case was attended to by the Additional Public Prosecutor posted in that Court. It is absolutely false to allege that the petitioner sent any wireless message to Agra. Shri N.D. Chaubey who was Under Secretary of the Government and the respondents are put to strict proof of the false allegations deliberately made to mislead the Court. Let them produce the wireless message allegedly sent by the petitioner. The further allegation that Criminal Misc. Application bearing No. 7221 of 1997 (R.P. Tyagi v. State) was dismissed, before the applications of Dr. B.P. Neelratna and Brijersdra were taken up or disposed of is false. The entire allegations are false and have deliberately been made to mislead the Court. The application of Shri R.P. Tyagi was dismissed by Hon’ble J. C. Misra, J. vide order dated 7-11-1997 after the order of removal dated 6-11-1997 was passed against the petitioner. How could the petitioner produce that order on 4-10-1997, when the application of Dr. Neelratna was taken up and the interim order was passed and when the application of Brijendra was taken up on 29- 11-1997. The false allegations made in those paragraphs of the counter-affidavit clearly show that an attempt was being made to prejudice the mind of the Court, by making allegations mentioned above, which the petitioner never committed to justify the illegal and arbitrary order of removal dated 6-11-1997, which in fact was passed without any cause or justification material. It was further averred in the rejoinder-affidavit that the allegations and documents mentioned in paragraphs 7 to 11 have been manipulated and an at-tempt was being made to introduce those nonexistent facts for the first time through the counter-affidavit, to justify the removal order dated 6-11-1997, when at the time of passing of the order none of the facts or documents against the petitioner were on record, It was surprising as to how the Under Secretary deposed about the compassionate view taken by invoking the doctrine of pleasure. The averment made in the paragraph is not sustained on any material on record. The order was in fact passed by the Chief Minister and the Under Secretary has nothing to do with the appointment or working of the public prosecutor. The paragraph has been sworn on the basis of record, but no record has been annexed to support the allegations. Thus the allegations made cannot be relied upon being remained wholly unsubstantiated.
118. It is pertinent to mention here that for the first time the allegations against the petitioner were made in the counter-affidavit which were rebutted by the petitioner in the rejoinder-affidavit. The facts averred in the rejoinder-affidavit have not been rebutted by filing any supplementary counter-affidavit. The petitioner has preferred an application supported by an affidavit on 21-11-1997 for summoning Shri N.D. Chaubey who has sworn the counter-affidavit and for punishing him for filing a false affidavit to defeat the petition by making the charges of misconduct against the petitioner under the Contempt of Courts Act. No counter-affidavit to the said application has been preferred.
119. We are not concerned with the merits of the decision but with the manner in which the decision was arrived at. It is well settled in the Commr. of Police v. Gordhandas Bhanji AIR 1952 SC 16 (para 9) and Mohinder Singh Gill v. The Chief Election Commissioner AIR 1978 SC 851 (para 8) that when a statutory functionary makes an order based on certain grounds its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise an order bad in the beginning may by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out.
120. It was further observed in Mohinder Singh Gill (AIR 1978 SC 851) (supra):
Public Order publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequent given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow older.
121. In Hanuman Prasad v. Union of India (1996) 10 SCC 742, the Hon’ble Supreme Court held :
In support thereof, he placed strong reliance on the decision of this Court in Mohinder Singh Gill v. Chief Election Commissioner AIR 1978 SC 851, in particular, para 8 of the judgment. It is true that when an order is passed, be it administrative or quasi judicial in nature, necessarily it would contain grounds or reasons for invalidating the action taken. The authorities cannot subsequently explain their actions by way of affidavit or otherwise. Therefore, this Court insisted upon the public orders made in exercise of the statutory power, should contain reasons and the order should contain the kind of action taken by them. Therefore, they cannot be permitted to substitute their actions or contents of orders by reference to any affidavits or other actions which did not find place in the order. In this case, the authorities simply cancelled the selection list. In Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi, this Court had held that if the order cancelling the examination came to be passed, the record should indicate the reason, though order may not contain the reasons as indicated in para 21 of the judgment. In that case, it was held that the order did not contain the reasons but the record indicated the same. The administrative order cancelling the examination in which mass copying was alleged, was sustained.
122. As we have pointed out in the foregoing paragraphs that the note on the file which was produced before us indicated that there were complaints against all the law officers whose services were terminated but specified allegations were not made. In the counter-affidavit specific allegations have been made. Even after going through the allegations made in the counter-affidavit, which have gone unrebutted, it is evident that a Criminal Revision which was filed by the State was withdrawn under the direction of the State. The application for withdrawal although was prepared by the petitioner was never moved by him before the Court. The Bail Application preferred by Kamta Singh, a Superintendent of Naini Jail, was strongly opposed by the petitioner. He argued the case and the Bail Application was rejected. The complaints alleged to have been sent by the Secretary of Rashtriya Jan Jagran Manch and Shri Bhaiya Lal Kashyap were not signed by any person. It was in the nature of anonymous complaints, which should not have been taken notice. The order passed in Criminal Misc. Application filed by Dr. B.P. Neelratna, an I.A.S. Officer, which we have reproduced in the foregoing paragraph indicates that the petitioner strongly opposed the Application and submitted that any interference (at the stage of investigation) might not be done but the Court passed an order, that the accused be not arrested in connection with Crime No. 259/1997. The Criminal Misc. Application No. 6588/97 filed by Mr. Brijendra, former Principal Secretary, of the Government, was not attended by the petitioner but was conducted by the Additional Public Prosecutor. The petitioner has denied that he sent any wireless message to Agra and threw a challenge to the respondents to produce the same allegedly sent by the petitioner. From the record it is evident that the Bail Application of Shri R.P. Tyagi was dismissed before the Applications of Dr. B.P. Neelaratna and Mr. Brijendra were taken up and disposed of. How could the petitioner produce the order dated 4-10-1997 passed in the Application of Mr. R.P. Tyagi when the Application of Dr. B.P. Neelratna was taken up and order passed on a subsequent date. The query was not replied by the respondents.
123. We have very minutely scrutinised the averments made in the counter-affidavit and rejoinder-affidavit. We are definitely of the view that the State Government totally failed to establish the charge of misconduct against the petitioner.
124. In view of the above, we are of the view that the State Government has taken into consideration extraneous matters. The orders are so unreasonable, that they might almost be described as being done in bad faith. The State Government have taken into account the matters which it ought not to have taken into account. They have arrived at the conclusion in such an unreasonable manner, that no reasonable authority or person could ever have arrived at. The facts which have been taken into account as a whole could not logically warrant the conclusion of the State Government. The State Government was influenced by the considerations which ought not to influence it. The State Government in the instant matter has not acted fairly and justly and its action cannot be said to be a legitimate and fair one. It smacks of aversion and malice which are writ at large. The State Government has shown favouritism to one Shri Vinod Chandra Mishra who was removed on the same date, on which the petitioner was removed, but within three days he was appointed although the noting on the file indicates in general terms that complaints were also received against him. It has not been indicated as to why Mr. Vinod Chandra Mishra was reappointed within two or three days. Although the State Government has been vacated with a discretion to appoint or terminate the services of the law officers, but in the present case the State Government has crossed its boundaries, inasmuch as, the orders which it has passed are such which no reasonable person would have passed.
125. The appointment of respondent No. 3 is arbitrary inasmuch as it is a product of spoils system and was made without consultation with the High Court in spite of the undertaking given by the Advocate General that whenever in future such an appointment would be made, it would be made after consultation with the High Court. We have judged the termination of the services of the petitioner and appointment of respondent No. 3 on the scale of Article 14 of the Constitution. We are definitely of the view of that the impugned orders suffer from the vice of unreasonableness, arbitrariness, unjustness and unfairness which cannot be sustained. The writ petition deserves to be allowed.
126. In view of what we have stated here in above the writ petition succeeds. A writ in the nature of certiorari quashing the impugned orders dated 6-11-1997 (Annexures 2 and 3 to the writ petition) passed by the State Government is issued.