{"id":218399,"date":"1993-06-15T00:00:00","date_gmt":"1993-06-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/harpal-singh-chauhan-and-ors-etc-vs-state-of-u-p-on-15-june-1993"},"modified":"2018-09-24T14:28:49","modified_gmt":"2018-09-24T08:58:49","slug":"harpal-singh-chauhan-and-ors-etc-vs-state-of-u-p-on-15-june-1993","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/harpal-singh-chauhan-and-ors-etc-vs-state-of-u-p-on-15-june-1993","title":{"rendered":"Harpal Singh Chauhan And Ors. Etc vs State Of U.P on 15 June, 1993"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Harpal Singh Chauhan And Ors. Etc vs State Of U.P on 15 June, 1993<\/div>\n
Equivalent citations: 1993 AIR 2436, \t\t 1993 SCR (3) 969<\/div>\n
Author: S N.P.<\/div>\n
Bench: Singh N.P. (J)<\/div>\n
           PETITIONER:\nHARPAL SINGH CHAUHAN AND ORS.  ETC.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF U.P.\n\nDATE OF JUDGMENT15\/06\/1993\n\nBENCH:\nSINGH N.P. (J)\nBENCH:\nSINGH N.P. (J)\nKULDIP SINGH (J)\n\nCITATION:\n 1993 AIR 2436\t\t  1993 SCR  (3) 969\n 1993 SCC  (3) 552\t  JT 1993 (4)\t  1\n 1993 SCALE  (3)31\n\n\nACT:\n%\nCode of Criminal Procedure, 1973-Section 24 read with  Paras\n7.06,  7.08  of the Legal Remembrancer Manual  --Renewal  of\nterm  of  District Government Counsel  Procedure  under\t the\nManual-- Requirements under S. 24 of the Code.\nCode   of   Criminal   Procedure,   1973-Section   24-Public\nProsecutor or Additional Public Prosecutor-Term of-Extension\nof  renewal-  Scope of-Duty of Sessions Judge  and  District\nMagistrate- Panel of lawyers--Preparation-Necessity of.\nConstitution  of  India,  1950-Article\t136-Appeal-Assistant\nDistrict Government Counsel's names recommended by  Sessions\nJudge  for  extension of their tenures\tnot  recommended  by\nDistrict   Magistrate-\t Rejection   of\t  Sessions   Judge's\nrecommendation by State-Legality of.\nCivil Services-Assistant District Government Counsel's names\nrecommended by sessions Judge for extension of their tenures\nnot recommended by District Magistrate-Rejection of Sessions\nJudge's recommendation by State-Legality of.\nCode of Criminal Procedure, 1973-Section 24(4)-Consideration\nof  suitability\t  of  a\t person\t to  the  post\tof  District\nGovernment Counsel by District Magistrate-Judicial review by\nCourts-Scope of.\nC.A. Nos. 722 and 723 of 1993.\n\n\n\nHEADNOTE:\nOn  25.2.91  the  appellants except  appellant\tNo.  3\twere\nappointed   as\t Assistant   District\tGovernment   Counsel\n(Criminal)  in accordance with the provisions of Section  24\nof  the Criminal Procedure Code and the\t Legal\tRemembrancer\nManual.\t The appellant No.3 was appointed on 13.12.1990. The\nlast date of the tenure of the appellants, except  appellant\nNo.3, was 31.12.1991, where as the tenure of appellant\tNo.3\nwas upto 13.12.1991. Before\n970\nthe expiry of their terms, the District Judge, preparing two\nlists,'A'  and\t`B' recommended the  appellants'  names\t for\nextension of their tenures.  List `A' contained the names of\nLawyers\t (including the appellants), whose work and  conduct\nwas approved for their extension, whereas List 'B' contained\nthe remaining names of the lawyers (including appellants  in\nC.A.  Nos. 386, 387\/ 1993) who were considered\tas  'average\nlawyers'.    The  District  Judge  requested  the   District\nMagistrate   to\t send  his  recommendation  to\t the   State\nGovernment.\nThe  District Magistrate did not recommend  the\t appellants'\nnames as their reputation, professional work, behaviour\t and\nconduct was not found in accordance with public interest.\nOn 28.12.1991 the State Government extended the terms of the\nappellants till further orders.\t Later without assigning any\nreason, the extension recommended by the District Judge\t was\nrejected by the State Government.\nThe  appellants\t filed\twrit petitions\tin  the\t High  Court\nagainst the Government's decision.  The High Court dismissed\ntheir  writ applications, against which the present  appeals\nwere filed by special leave before this Court.\nC.A.  Nos. 386 & 387 OF 1993.\nThe appellants' names were included in the List 'B' prepared\nby  the District Judge.\t The State Government  rejected\t the\nrecommendation of the District Judge, without assigning\t any\nreason.\t  The writ petitions preferred by them in  the\tHigh\nCourt were dismissed.  Hence these appeals by special leave.\nAs  there  was a common issue arose in these  appeals,\tsame\nwere heard and decided together.\nThe appellants contended that in view of Para 7.06(2) of the\nLegal  Remembrancer  Manual  the appointment  of  any  legal\npractitioner  as  a  District  Government  Counsel  did\t not\nautomatically come to an end.\nThe  State  submitted that as Section 24(4) of the  Code  of\nCriminal  Procedure vested power in the District  Magistrate\nto  consider  the suitability of the person  concerned,\t for\nappointment, according to his opinion, as such there was not\nmuch scope of judicial review by Courts, unless a clear case\nof  malice on the part of the District Magistrate  was\tmade\nout.\n971\nAllowing  the  Civil Appeals Nos. 722 and 723  of  1993\t and\ndismissing  the Civil Appeal Nos. 386 and 387 of 1993,\tthis\nCourt.\nHELD:1.1.  When\t sub-section  (4)  and\tsub-section  (5)  of\nSection\t 24 of the Code of Criminal Procedure,\tspeak  about\npreparation  of a panel, out of which  appointments  against\nthe posts of Prosecutor or Additional Public Prosecutor have\nto  be\tmade,  then  the Sessions  Judge  and  the  District\nMagistrate are required to consult and discuss the names  of\nthe  persons fit to be included in the panel and to  include\nsuch names in the panel.\n1.2.The expressions \"panel of names of persons\", do not mean\nthat   some names are to be suggested by the Sessions  Judge\nand some comments are to be made, in respect of those  names\nby the District Magistrate, without proper consultation\t and\ndiscussion over such names.  The statutory mandate ought  to\nhave  been complied with by the District Magistrate and\t the\nSessions Judge in its true spirit.\n1.3.Section  24\t of  the  Code\tdoes  not  speak  about\t the\nextension  or renewal of the terms of the Public  Prosecutor\nor  Additional Public Prosecutor.  But after the  expiry  of\nthe  term  of  the  appointment\t of  persons  concerned,  it\nrequires  the same statutory exercise, in which\t either\t new\npersons\t are appointed or those who have working  as  Public\nProsecutor  or\tAdditional  Public  Prosecutor,\t are   again\nappointed  by the State Government, for a fresh\t term.\t The\nprocedure prescribed in the Manual  to the extent  it is not\nin  conflict  with the provisions of Section  24,  shall  be\ndeemed\tto be supplementing the statutory  provisions.\t But\nmerely because there is a provision for extension or renewal\nof  the\t term,\tthe same cannot be claimed as  a  matter  of\nright.\n1.4.While  exercising the power of judicial  review  even_in\nrespect of appointment of members of the legal profession as\nDistrict  Government Counsel, the Court can examine  whether\nthere  was any infirmity in the \"decision  making  process\".\nOf  course, while doing so, the Court cannot substitute\t its\nown  judgment  over the final decision taken in\t respect  of\nselection of persons for those posts.\nChief Constable of the North Wales Police v. Evans,  [1982]3\nAll E.R. 141, referred to.\n1.5.In\tthe  facts  of\tthe  present  case,  the   procedure\nprescribed by Section 24 of the Code have not been  followed\nby the District Magistrate.  There is\n972\nnothing\t on the records of the case to show that any  panel,\nas  required by sub-section (4) of Section 24, was  prepared\nby the District Magistrate in consul\"on with the District  &\nSessions  Judge.  The District Magistrate simply  made\tsome\ngeneral\t comment  in  respect of the  appellants,  when\t the\nDistrict  & Sessions Judge had put them in List 'A'  of\t his\nrecommendation.\t  This\tshall  not  amount  to\teither\t the\ncompliance  of sub-section (4) of Section 24 of the Code  or\nPara  7.06(2) of the Manual.  It appears there has  been  no\neffective  or real consultation between the  Sessions  Judge\nand the District Magistrate for preparation of the panel, as\ncontemplated by sub-section (4) of Section 24 of the Code.\n1.6.The\t members  of the legal profession  are\trequired  to\nmaintain  high\tstandard  of legal  ethics  and\t dignity  of\nprofession.   They are not supposed to solicit work or\tseek\nmandamus from courts in matters of professional engagements.\n1.7.In\tview of the strong recommendation about the  quality\nof   the   appellant's\tprofessional  work,   the   District\nMagistrate should have Applied his mind in consultation with\nthe  Sessions  Judge, in respect of  each  individual  case,\ninstead\t of making a general and identical  comment  against\nall the appellants.\n1.8.As\tthe  District  Magistrate  has\tnot  performed\t his\nstatutory  duty\t as  enjoined by law,  the  appeals  of\t the\nappellants have to allowed.\n1.9.The\t District  Magistrate  is directed  to\tperform\t his\nstatutory duty afresh, in accordance with the requirement of\nSection 24 of the Code read with the relevant paragraphs  of\nChapter\t VII of the Manual, which are not inconsistent\twith\nSection 24 of the Code, so far the appellants are concerned,\nif the vacancies are still there.  The necessary steps shall\nbe taken preferably within four months from the date of this\njudgment.  The State Government shall thereafter perform its\npart in accordance with Section 24 and different  paragraphs\nof the Manual which are applicable in the facts and  circum-\nstances of the case.\nKumari\tShrilekha Vidyarthi v. State of U.P.,<\/a> [1991]  1\t SCC\n212, referred to.\n2.The District & Sessions Judge, who is required to  express\nhis  opinion  ton the merit and the conduct of\tthe  persons\nrecommended  for appointment or extension of the  period  as\nDistrict Government Counsel, has expressed the\n973\nopinion\t that appellants (in C. As. Nos. 386-387 of 93)\t are\n\"average  lawyers\", and has put them in List'B'.   In  other\nwords, neither the District & Sessions Judge has recommended\nthe  case of the appellants of these appeals  for  extension\nnor  the District Magistrate.  Their case cannot be  treated\nat par with the appellants of the other appeals.  In such  a\nsituation, no useful purpose will be served by directing the\nDistrict  Magistrate  to  perform  his\tstatutory  duty,  as\nrequired by sub-section (4) of Section 24 of the Code again,\neven in respect of these appellants.\n3.Although power has been vested in a particular  authority,\nin subjective terms still judicial review is permissible.\nBarium\tChemicals Ltd, v. Company Law Board, AIR<\/a>  [1967]  SC\n295; State of Assam v. Bharat Kala Bhandar Ltd-, AIR<\/a>  [1967]\nSC 1766; Rohtas Industries Ltd. v. S.D. Agarwal, AIR<\/a>  [1969]\nSC 707; The Purtabpur Company Ltd. v. Call e Commissioner of\nBihar, AIR [1970] SC 1989 and; M.A. Rasheed v. The State  of\nKerala, AIR<\/a> [1974] SC 2249, relied on.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 722 and 723
\nof 1993.\n<\/p>\n
From the Judgment and Order dated 13.11.92 of the  Allahabad
\nHigh Court in W.P. Nos. 688 & 1246 of 1992.\n<\/p>\n
\t\t\t    WITH
\n\t       CIVIL APPEALS NOS. 386 and 387 of 1993
\nFrom the Judgment and Order dated 13.11.92 of the  Allahabad
\nHigh Court in W. P. Nos. 8 19 and 888 of 1992.
\nRajiv\tDhawan,\t P.K.  Dey  and\t Rakesh\t Gosian,  Ms.\tRani
\nJethmalani,  (N.P.)  for the Appellants in  C.A.  Nos.\t722-
\n23\/93.\n<\/p>\n
R.P. Saxena for the Appellants in C.A. Nos. 386-87\/93.
\nYogeshwar Prasad and Ms. Rachna Gupta for the Respondent.
\nThe Judgment of the Court was delivered by
\n974<\/span>
\nN.P.  SINGH.  J The appellants in Civil Appeals Nos.  722  &
\n723  of\t 1993  had  been  appointed  as\t Assistant  District
\nGovernment   Counsel  (Criminal)  to  appear  in   different
\ncriminal cases, on behalf of the State, in different  Courts
\nin the District of Moradabad.  They filed the connected Writ
\nApplications  before the High Court against the decision  of
\nthe  State Government, refusing to extend their term  for  a
\nfarther\t period of three years, which were dismissed by\t the
\nHigh Court.\n<\/p>\n
It  appears  that the appellants. except  appellant  No.  3,
\nGopal  Sharma. had been appointed by Government Order  dated
\n25.2.91. as Assistant District Government Counsel (Criminal)
\nin  the\t District  of  Moradabad,  in  accordance  with\t the
\nprovisions  of\tSection 24 of the  Criminal  Procedure\tCode
\n(hereinafter  referred\tto  as “the  Code”)  and  the  Legal
\nRemembrancer   Manual  (hereinafter  referred  to  as\t“the
\nManual”)  against the substantive vacancies.  Appellant\t No.
\n3, however, had been appointed on 13.12.1990. The last\tdate
\nof the tenure of the appellants, other than appellant No. 3,
\nas  mentioned  in the aforesaid Government Order  dated\t 25.
\n2.1991 was 31.12.199 1. The tenure of appellant No. 3 was up
\nto 13.12.199 1. It is not in dispute that before the  expiry
\nof the term aforesaid, the District Judge, Moradabad, by his
\nletter dated 27.12.1991 recommended the names of  appellants
\nfor  extension of their terms.\tThe District Judge  prepared
\ntwo lists i.e. ‘A’ and ‘B’.  List ‘A’ contained the name  of
\nthose lawyers “whose work and conduct has been approved\t for
\ntheir  extension  as Government Counsel”, whereas  List\t `B’
\ncontained the names of the remaining Government Counsel, who
\nin the opinion of the District Judge were “average lawyers”.
\nThe  names  of the appellants are in  List’A’  The  District
\nJudge requested the District Magistrate.  Moradabad. to send
\nhis recommendation to the State Government for extension  of
\nthe  term of tile Government Counsel, mentioned in  List’A’.
\nThe District Magistrate. after receipt of the recommendation
\nof  the District Judge aforesaid, by a\tcommunication  dated
\n2.1.92, did not recommended the names of the appellants, for
\nextension of their terms, saying that on the inquiry at\t his
\nlevel, “reputation, professional work, behaviour and conduct
\nof  the above mentioned Government Counsel was not found  in
\naccordance with public interest”.  It may be mentioned\tthat
\non  28.12.9 1. tile State Government had extended the  terms
\nof  the appellants till further orders. Ultimately,  without
\nassigning  any\treason,\t the extension\trecommended  by\t the
\nDistrict  Judge was rejected by the State Government,  which
\ndecision  is  the subject matter of the controversy  in\t the
\npresent appeals.\n<\/p>\n
In  the\t State\tof  U.P., the  Manual  is  an  authoritative
\ncompilation  of the government orders and  instructions\t for
\nthe conduct of legal affairs of the State Government.\tPara
\n1.00 of Chapter VII gives the details of the Law Officers of
\nthe Government which includes the Government Counsel (Civil,
\nRevenue, Criminal)
\n975<\/span>
\nalong  with  many  others  like\t Judicial  Secretary\t and
\nLegislative Secretary.\tThe Chapter VII of the contains\t the
\nprocedure  in  respect\tof  appointment\t and  conditions  of
\nengagements  of District Government Counsel.   The  District
\nOfficer\t is  required  it)  consider  all  the\tapplications
\nreceived.  in  consultation with the District Judge  and  to
\nsubmit\tin  order  of preference the  names  of’  the  legal
\npractitioners, along with the opinion of the District  Judge
\non tile suitability and merit of each candidate to the State
\nGovernment giving due wightage to the claim of the  existing
\nincumbents,   if   any.\t   After   the\t receipt   of\tsuch
\nrecommendations,  the  Legal  Remembrancer  is\trequired  is
\nrequired  to  submit the said recommendations with  his\t own
\nopinion for the orders of the State Government.
\nIn  Para  7.06 of the Manual, the  procedure  regarding\t the
\nappointment and renewal has been prescribed
\n\t      “7.06. Appointment and renewal  (1) The  legal
\n\t      practitioner    finally\tselected   by\t the
\n\t      Government    may\t  be   appointed    District
\n\t      Government Counsel for one year from the\tdate
\n\t      of his taking over charge.\n<\/p>\n
\t      (2)At  the end of the aforesaid  periodic\t the
\n\t      District Officer after consulting the District
\n\t      Judge  shall submit a report on his  work\t and
\n\t      conduct  to the legal  Rememberancer  together
\n\t      with the statement of work done in Form No. 9.
\n\t      Should  his  work or conduct be  found  to  he
\n\t      unsatisfactory the matter shall be reported to
\n\t      the  Government for orders.  If the report  in
\n\t      respect  of his work and conduct is  satisfac-<\/p>\n
\t      tory,  he\t may  be furnished with\t a  deed  of
\n\t      engagement  in  Form  No. 1  for\ta  term\t not
\n\t      exceeding\t  three\t  years.    On\t his   first
\n\t      engagement  a  copy  of  Form  No.2  shall  he
\n\t      supplied\tto  him and lie shall  complete\t and
\n\t      return  it  to  the  legal  Remembrancer\t for
\n\t      record.\n<\/p>\n
\t      (3)The  appointment of any legal\tpractitioner
\n\t      as  a  District  Government  Counsel  is\tonly
\n\t      professional engagement terminable at will  on
\n\t      either  side and is not appointment to a\tpost
\n\t      under   the   government.\t   Accordingly\t the
\n\t      government reserves the power to terminate the
\n\t      appointment of any District Government Counsel
\n\t      at any time without assigning any cause.”
\nPara 7.08 contains the procedure for renewal after expiry of
\nthe original term:-\n<\/p>\n
\t      “7.08.  Renewal  of term-(1)  At\tleast  three
\n\t      months before the expiry
\n\t      976<\/span>
\n\t      of the term of a District Government  Counsel,
\n\t      the  District Officer shall  after  consulting
\n\t      tile District Judge and considering, his\tpast
\n\t      record of work, conduct and age, report to the
\n\t      Legal Remembrancer together with the statement
\n\t      of  work done by him in Form No.9\t whether  in
\n\t      his  opinion the term of appointment  of\tsuch
\n\t      counsel  should be renewed or not.  A copy  of
\n\t      the opinion of the District Judge should\talso
\n\t      he sent along with the recommendations of\t the
\n\t      District Officer.\n<\/p><\/blockquote>\n
\t      (2)Where\trecommendation for the extension  of
\n\t      the  term of a District Government Counsel  is
\n\t      made  for a specified period only the  reasons
\n\t      therefore shall also he stated by the District
\n\t      Officer.\n<\/p><\/blockquote>\n
\t      (3)   While forwarding, his recommendation for
\n\t      renewal\tof  the\t term  District\t  Government
\n\t      Counsel-\n<\/p><\/blockquote>\n
\t      (i)   the\t  District  Judge  shall   give\t  an
\n\t      estimate of the quality of the Counsel’s\twork
\n\t      from the judicial standpoint, keeping, in view
\n\t      the  different aspects of a  lawyers  capacity
\n\t      as. it is manifested before him in conducting,
\n\t      State  cases, and specially  his\tprofessional
\n\t      conduct.\n<\/p><\/blockquote>\n
\t      (ii)  the\t District  Officer  shall  give\t his
\n\t      report  about the suitability of the  District
\n\t      Government  Counsel  from\t the  administrative
\n\t      point  of\t view,\this  public  reputation\t  in
\n\t      general\t his   character.   integrity\t and
\n\t      professional conduct.\n<\/p><\/blockquote>\n
\t      (4)   If\t the  Government  agrees  with\t the
\n\t      recommendations  of the District\tOfficer\t for
\n\t      the  renewal  of the term\t of  the  Government
\n\t      Counsel, it may pass orders for  re-appointing
\n\t      him for a period not exceeding three years.
\n\t      (5)   If\tthe  government decides not  to\t re-<\/p><\/blockquote>\n
\t      appoint\ta  Government  Counsel,\t the   Legal
\n\t\t\t    Remembrancer may call upon the District Office
\nr
\n\t      to forward fresh recommendations in the manner
\n\t      laid down in para 7.03.\n<\/p>\n
\t      (6)   The\t procedure prescribed in  this\tpara
\n\t      shall  be\t followed  on the  expiry  of  every
\n\t      successive period of renewed appointment of a
\n977<\/span>
\nDist Government Counsel.\n<\/p>\n
Note : The renewal beyond 60 years of age shall depend\tupon
\ncontinuous good work, sound integarity and physical  fitness
\nof the Counsel.\n<\/p>\n
  It  was pointed out on behalf of the appellants, that\t any
\nlegal practitioner finally selected by the Government may be
\nappointed  as District Government Counsel for one year\tfrom
\nthe date of his taking over charge, but in view of Para 7.06
\nof  the\t Manual\t at  the end of\t the  aforesaid\t period\t the
\nDistrict Magistrate after consulting the District Judge\t has
\nto  submit  a report on his work and conduct  to  the  Legal
\nRemembrancer  in  the  form prescribed.\t If  the  report  in
\nrespect\t of his workand conduct is satisfactory,  then\tsuch
\nCounsel shall be furnished with a deed of engagement in form
\nNo.  1 for a term not exceeding three years.  Para  7.08  of
\nthe Manual contains the procedure for renewal of the term of
\nthe District Government Counsel after the expiry of original
\nterm. It requires the District Officer at least three months
\nbefore\tthe  expity  of the term of  a\tDistrict  Government
\nCounsel to report to the Legal Rmembrancer after  consulting
\nthe  District Judge and considering the past record of\twork
\nconduct and age of such District Government Counsel. If\t the
\nGovernment  agrees  with the recommendation it may  pass  an
\nOrder  re-appointing  him for a period not  exceeding  three
\nyears.\n<\/p>\n
  The  stand  of  the appellants is that  in  view  of\tPara
\n7.06(2),  the  appointment of any legal\t practitioner  as  a
\nDistrict Governemnt Counsel, does not automatically come  to
\nan  end\t rather it indicates and element of  continuity\t and
\nthat  is why Para 7.06(2) requires the District\t Officer  at
\nthe  end  of  period of one year to submit  a  report  after
\nconsulting  the District Judge concerned in respect  of\t the
\nwork and conduct of such District Government Counsel to\t the
\nLegal  Remembrancer in a form prescribed. If the  report  in
\nrespect\t of  work  and conduct\tis  satisfactory  then\tsuch
\nDistrict  Government Counsel shall be furnished with a\tdeed
\nof engagement in a form prescribed for a term not  exceeding
\nthree  years.  As such after the period of one year  if\t the
\nengagement  for\t a further period upto three  years  is\t not
\ngiven, it amounts to a stigma.\n<\/p>\n
  On  behalf of the appellants attention of this  Court\t was
\ndrawn  to a letter addressed to the District  Magistrate  by
\nDr.  Nepal  Singh, M. L.C., the District  President  of\t the
\nparty  then  in\t power\trecommending  the  names  of   other
\nGovernment  Counsel for renewal\/extension of their term.  It
\nwas  pointed out that in respect of all those  persons.\t The
\nDistrict Magistrate has recommended for extension. There  is
\nhowever, no material before us to show that the District
\n978<\/span>
\nMagistrate was influenced by the said letter in any  manner.
\nA part form that the persons so resommended by the  District
\nMagistrate  were  not impleded as respondents  to  the\tWrit
\napplications.  As such we are not inclined to go  into\tthis
\naspect.\n<\/p>\n
  The  different  paragraphs of the  Manual  aforesaid\twere
\nexamined in detail in the case of Kumari Shrilekha Vidyarthi
\nv.  State of U. P.<\/a> [1991] 1 SCC 212, in connection  with  an
\norder  dated February 6, 1990 issued by the State of  U.  P.
\nterminating  the appointments of all Government\t Counlsel  (
\nCivil  Criminal\t and Revenue) in all the  districts  of\t the
\nState  of  U.P.\t with  effect from  February  28,  1990\t and
\ndirecting  the\tpreparation  of\t fresh\tpanels\tfor   making
\nappointments  in  places of the existing  incumbents.  while
\nquashing such general order it was said:-\n<\/p>\n
\t\tViewed\tin any manner the impugned  circular
\n\t      dated  February  6,  1990\t is  arbitrary.\t  It
\n\t      terminates all the appointments of  Government
\n\t      Counsel in the districts of the State of Uttar
\n\t      Pradesh by an omnibus order even though  these
\n\t      appointments  were all individual.  No  common
\n\t      reason  applicable to all of  them  justifying
\n\t      their   termination   in\tone  stroke   on   a
\n\t      reasonable   ground   has\t been\tshown.\t The
\n\t      submission   on\tbehalf\tof  the\t  State\t  of
\n\t      UttarPradesh at the hearing that many of\tthem
\n\t      were  likely to be re-appointed is  by  itself
\n\t      ample  proof of the fact that there was  total
\n\t      non-application  of  mind\t to  the  individual
\n\t      cases   before  issuing  the   general   order
\n\t      terminating  all\tthe appointments.  This\t was
\n\t      done  in spite of the clear provisions in\t the
\n\t      L. R. manual lying down detailed procedure for
\n\t      appointment, termination and renewal of tenure
\n\t      and  the\trequirement to\tfirst  consider\t the
\n\t      existiong incumbent for renewal of his  tenure
\n\t      and  to take steps for a fresh appointment  in
\n\t      his  place only if the existing  incumbent  is
\n\t      notfound\t suitable  in  comparison  to\tmore
\n\t      suitable persons available for appointment  at
\n\t      the  time of renewal. In the case of  existing
\n\t      appointees a decision has to be first  reached
\n\t      about their non-suitability for renewal before
\n\t      deciding\tto  take  steps\t for  making   fresh
\n\t      appointments  to replace them. None  of  these
\n\t      steps  were  taken  and  no  materialhas\tbeen
\n\t      produced\tto show that any existing  incumbent
\n\t      was   found  unsuitable  for  the\t office\t  on
\n\t      objective\t assessment before the\tdecision  to
\n\t      replace all by fresh appointees was taken. The
\n\t      prescribed  procedure  laid down in  the\tL.R.
\n\t      Manual which has to regulate exercise of\tthis
\n\t      power was tatally igonered.\n<\/p><\/blockquote>\n
  In the present case it appears to be an admitted  position
\nthat  appointments of the appellants as\t assistant  District
\nGovernment Counsel (Criminal) is governed
\n978<\/span>
\n979<\/span>
\n.LM0
\nby  Section 24 of the Code, as well different paragraphs  of
\nChapter VII of the Manual.  It was not disputed on behalf of
\nthe State, that appellants shall be deemed to be  Additional
\nPublic\tProsecutors within the meaning of Section 24 of\t the
\nCode,  although in the order of appointment they  have\tbeen
\ndesignated   as\t  Assistant  District\tGovernment   Counsel
\n(Criminal).   The procedure prescribed in the Manual can  be
\nobserved  and followed as supplemental to the provisions  of
\nSection\t 24 of the Code.  Needless to say that, if there  is
\nany  conflict, then Section 24 of the Code being   statutory
\nin  nature  will override the procedure\t prescribed  in\t the
\nManual.\t The relevant part of Section 24 is as such
\n\t      “24.  Public  Prosecutors (1) For\t every\tHigh
\n\t      Court,  the  Central Government of  the  State
\n\t      shall, after consultation with the High Court,
\n\t      appoint  a  Public  Prosecutor  and  may\talso
\n\t      appoint\tone   or  more\t Additional   Public
\n\t      Prosecutors, for conducting in such Court, any
\n\t      prosecution,appeal  or  other  proceedings  on
\n\t      behalf  of  the Central  Government  or  State
\n\t      Government, as the case may be.\n<\/p>\n
\t      (2)………………….\n<\/p>\n
\t      (3)  For every district, the State  Government
\n\t      shall appoint a Public Prosecutor and may also
\n\t      appoint\tone   or  more\t Additional   Public
\n\t      Prosecutors for the district:\n<\/p>\n
\t      Provided\t that  the  Public   Prosecutor\t  or
\n\t      Additional Public Prosecutor appointed for one
\n\t      district may he appointed also to be a  Public
\n\t      Prosecutor  as  the case may  be\tfor  another
\n\t      district.\n<\/p>\n
\t      (4)The\tDistrict   Magistrate\tshall,\t  in
\n\t      consultation with the Sessions Judge,  prepare
\n\t      a\t panel of names of persons, who are. in\t his
\n\t      opinion,\t fit  to  he  appointed\t as   Public
\n\t      Prosecutors  or Additional Public\t Prosecutors
\n\t      for the district.\n<\/p>\n
\t      (5)   No\tPerson\tshall be  appointed  by\t the
\n\t      State  Government as the Public Prosecutor  or
\n\t      Additional Public Prosecutor for the  district
\n\t      unless his name appears in the panel of  names
\n\t      prepared by the District Magistrate under sub-
\n\t      section (4).”\n<\/p>\n
The Code prescribes the procedure for appointment of  Public
\nProsecutor  and Additional Public Prosecutor, for  the\tHigh
\nCourt and the District Courts by the State Government.\t The
\nframers\t of the Code, were conscious of the fact,  that\t the
\nPublic Prosecutor and the Additional Public Prosecutor\thave
\nan important role,
\n980<\/span>
\nwhile  prosecuting on behalf of the State, accused  persons,
\nwho are alleged to have committed one or the other  offence.
\nBecause\t of  that,  provisions\thave  been  made  for  their
\nselection  in  the Code.  It is for the\t Sessions  Judge  to
\nassessee  the merit and professional conduct of the  persons
\nrecommended   for   such  appointments\tand   the   District
\nMagistrate  to\texpress his opinion on\tthe  suitability  of
\npersons\t so  recommended, from the administrative  point  of
\nview.  Sub-section (5) of Section 24 provides that no person
\nshall  be  appointed by the State Government as\t the  Public
\nprosecutor or as an Additional Public Prosecutor “unless his
\nname appears in the panel of names prepared by the  District
\nMagistrate  under sub-section (4)”.  The  aforesaid  section
\nrequires  an  effective and real  consultation\tbetween\t the
\nSessions Judge and the District Magistrate, about the  merit
\nand  suitability  of  person  it)  he  appointed  as  Public
\nProsecutor  or as an Additional Public Prosecutor.  That  is
\nwhy it requires, a panel of names of persons, to be prepared
\nby the District Magistrate in consultation with the Sessions
\nJudge.\t The  same  is the position so\tfar  the  Manual  is
\nconcerned.   It\t enumerates in detail, how  for\t purpose  of
\ninitial appointment extension or renewal, the District Judge
\nwho  is also the Session Judge, is to give his\testimate  of
\nthe  quality  of the work of the Counsel from  the  judicial
\nStandpoint  and\t the  District\tOfficer\t i.e.  the  District
\nMagistrate  is\tto  report about the  suitability,  of\tsuch
\nperson, from administrative point of view.
\nOn  behalf  of\tthe State, our attention was  drawn  to\t the
\nexpression “in his opinion” occurring in sub-section (4)  of
\nSection 24 of the Code.\t It was urged that as the Code vests
\npower in the District Magistrate to consider the suitability
\nof the person concerned, for appointment, according, to\t his
\nopinion,  there\t is  not much scope of\tjudicial  review  by
\nCourts,\t unless\t a clear case of malice on the part  of\t the
\nDistrict  Magistrate is made out.  In view of the series  of
\njudgments  of this Court in Barium Chemicals Ltd v.  Company
\nLaw  Board,  AIR<\/a> 1967 SC 295; State of\tAssam  Bhatrai\tKala
\nBhandar Ltd.AIR 1967 SC 1766, Rohtas Industries Ltd. v. S.D.
\nAgarwal, AIR<\/a> 1969 SC 707, The Purtapur Company Ltd. v.\tCane
\nCommissioner  of Bihar AIR 1970 SC 1896 and M.A. Rasheed  v.
\nThe State of Kerala, AIR<\/a> 1974 SC 2249, it is almost  settled
\nthat,  although\t power\thas  been  vested  in  a  particular
\nauthority,  in\tsubjective term:, still judicial  review  is
\npermissible.\n<\/p>\n
In  the present case the District & Session  Judge  strongly
\nrecommended extension for the appellants, saying that so far
\ntheir  work  and conduct were concerned, the same  had\tbeen
\napproved.  But the District Magistrate, simply said that  on
\nthe  inquiry  at his level “reputation,\t professional  work,
\nbehaviour and conductor the appellants as government counsel
\nwas not found in accordance with the public interest”.\t The
\nquality of the Counsel’ work has to be judged and assessed
\n981<\/span>
\nby  the District & Sessions Judge.  The District  Magistrate
\nis required to consider the suitability of such person, from
\nthe administrative point of view.  According to us, in\tview
\nof  the\t strong\t recommendation about  the  quality  of\t the
\nappellants’  professional  work,  the  District\t  Magistrate
\nshould\thave  applied  his mind\t in  consultation  with\t the
\nSessions Judge. in respect of each individual case.  instead
\nof  making a general and identical comment against  all\t the
\nappellants.\n<\/p>\n
Apart from that the mandate of sub-section (4) of Section 24
\nis that “the District Magistrate shall, in constitution with
\nthe  Session  Judge, prepare a panel of names  of  persons”.
\nSub-section  (5)  of Section 24 prescribes a  statutory\t bar
\nthat no person shall be appointed by the State Government as
\nthe  Public Prosecutor or Additional Public  Prosecutor\t for
\nthe district “unless his name appears in the panel of  names
\nprepared by the District Magistrate under sub-section  (4)”.
\nWhen  sub-section (4) and sub-section (5) of Section  24  of
\nthe  Code, speak about preparation of a panel, out of  which
\nappointments  against the posts of Prosecutor or  Additional
\nPublic\tProsecutor have to he made. then the Sessions  Judge
\nand  the  District Magistrate are required  to\tconsult\t and
\ndiscuss\t the names of the persons fit to be included in\t the
\npanel  and  to\tinclude\t such  names  in  the  panel.\t The
\nexpressions  “panel of names of persons”, do not  mean\tthat
\nsome  names  are to be suggested by the Sessions  Judge\t and
\nsome  comments are to be made, in respect of those names  by
\nthe  District  Magistrate, without proper  consultation\t and
\ndiscussion over such names.  The statutory mandate ought  to
\nhave  been complied with by the District Magistrate and\t the
\nSessions  Judge\t in its true spirit.  In the  facts  of\t the
\npresent case, no such panel appears to have been prepared by
\nthe  District  Magistrate  in terms of\tsub-section  (4)  of
\nSection 24.  As Section 24 of the Code does not speak  about
\nextension or renewal of the term of the person so appointed,
\nthe  same  procedure, as provided under sub-section  (4)  of
\nSection 24 of the Code, has to be followed.  In the  present
\ncase the District Magistrate instead of having an  effective
\nand  real  consultation with the District &  Sessions  Judge
\nsimply\tmade  some vague and general  comments\tagainst\t the
\nappellants, which cannot be held to he the compliance of the
\nrequirement of subsection (4) of Section 24.
\nIn  the\t case of Kumari Shrilankha Vidyarthi  (supra),\tthis
\nCourt  was  not concerned with the  question  regarding\t the
\nextension\/renewal  of the terms of the\tGovernment  Counsel.
\nThe  primary  question which was examined by this  Court  in
\nthat  case,  was  as to whether it was\topen  to  the  State
\nGovernment by the impugned circular dated February 6,  1990.
\nto  terminate appointments of all the Government Counsel  in
\nthe  different districts of the State, by an omnibus  order,
\neven though those appointments were all individual.  It\t was
\nheld that any such exercise of power by the State Government
\ncannot satisfy the test of Article 14 of the Constitution
\n982<\/span>
\nand  as\t such  was  unreasonable  and  arbitrary.   In\tthat
\nconnection reference was made to the Manual aforesaid and it
\nwas pointed out that the said Manual has laid down  detailed
\nprocedure  for appointment, termination and renewal  of\t the
\ntenure of the  District Government Counsel.  It was  pointed
\nout, that different paragraphs of the Manual require,  first
\nto  consider  the  existing  incumbents\t for  extension\t and
\nrenewal\t of  their  tenure  and\t to  take  steps  for  fresh
\nappointment in their place, if the existing incumbents\twere
\nnot  found suitable in comparison to more  suitable  persons
\navailable for appointment at the time of the renewal.
\nAs already mentioned above.  Section 24 of the Code does not
\nspeak  about  the extension or renewal of the term  (if\t the
\nPublic\tProsecutor  or Additional  Public  Prosecutor.\t But
\nafter  the expiry of the term of the appointment of  persons
\nconcerned. it requires the same statutory exercise, in which
\neither\tnew  persons are appointed or those  who  have\tbeen
\nworking\t  as   Public  Prosecutor   or\t Additional   Public
\nProsecutor. are again appointed by the State Government, for
\na  fresh term.\tThe procedure prescribed in the Manual –  to
\nthe  extant – it is not in conflict with the  provisions  of
\nSection\t 24.  shall  he\t deemed\t to  be\t supplementing\t the
\nstatutory  provisions.\t But  merely  because  there  is   a
\nprovision  for\textension or renewal of the term,  the\tsame
\ncannot he claimed as a matter of right.\n<\/p>\n
It  is\ttrue  that none of the appellants can  claim,  as  a
\nmatter of right, that their terms should have been  extended
\nor  that  they\tshould be  appointed  against  the  existing
\nvacancies  but\tcertainly  they can make  a  grievance\tthat
\neither\tthey  have not received the Pair  treatment  by\t the
\nappointing authority or that the procedure prescribed in the
\nCode  and in the Manual aforesaid. have not  been  followed.
\nWhile  exercising  the\tpower of  judicial  review  even  in
\nrespect of appointment of members of the legal profession as
\nDistrict  Government Counsel the Court can  examine  whether
\nthere was any infirmity in the “decision making process.” Of
\ncourse,\t while doing so the Court cannot substitute its\t own
\njudgment  over\tthe  final  decision  taken  in\t respect  of
\nselection  of persons for those posts.\tIt was said  in\t the
\ncase  of  Chief\t Constable  of\tthe  North  Wales  Plice  v.
\nEvans.(1982) 3 All E.R. 141;-\n<\/p>\n
“The  purpose of  judicial  review  is to  ensure  that\t the
\n\t      individual receives fair treatment, and not to
\n\t      ensure  that  the authority,  after  according
\n\t      Pair  treatment. reaches on a matter which  it
\n\t      is authorised or enjoined by law to decide for
\n\t      itself  a conclusion which is correct  in\t the
\n\t      eyes of the court.”\n<\/p>\n
In  the facts of the present case, the procedure  prescribed
\nby  Section  24 of the Code have not been  followed  by\t the
\nDistrict Magistrate.There is nothing on the
\n983<\/span>
\nrecords\t of the case to show that any panel as\trequired  by
\nsub-section  (4) of Section 24 was prepared by the  District
\nMagistrate  in\tconsultation with the  District\t &  Sessions
\nJudge.\t The  District Magistrate simply made  some  general
\ncomment\t in respect of the appellants.\tWhen the District  &
\nSessions   Judge   had\tput  them  in  List   ‘A’   of\t his
\nrecommendation.\t According, to us, this shall not amount  to
\neither\tthe compliance of ‘sub-section (4) of Section 24  of
\nthe  Code or Para 7.06(2) of the Manual.  It  appears  there
\nhas  been  no  effective or real  consultation\tbetween\t the
\nSessions  Judge and the District Magistrate for\t preparation
\nof the panel, as contemplated. by sub-section (4) of Section
\n24 of the Code.\n<\/p>\n
The members of the legal profession are required to maintain
\nhigh  standard\tof legal ethics and dignity  of\t profession.
\nThey are not supposed to solicit work or seek mandamus\tfrom
\ncourts in matters of professional engagements.\tWe have been
\npersuaded to interfere in these matters to a limited extent,
\nas  we are satisfied that there is patent infraction of\t the
\nstatutory  provisions  of the Code.  As we are of  the\tview
\nthat the District Magistrate has not performed his statutory
\nduty as enjoined by law, the appeals of the appellants\thave
\nto be allowed.\n<\/p>\n
In  the\t result,  the appeals are allowed.   We\t direct\t the
\nDistrict  Magistrate,  Moradabad, to perform  his  statutory
\nduty  afresh. in accordance with the requirement of  Section
\n24 of the Code read with the relevant paragraphs of  Chapter
\nVII  of the Manual, which are not inconsistent with  Section
\n24 of the Code. so far the appellants are concerned, if\t the
\nvacancies  are\tstill there.  The necessary steps  shall  be
\ntaken  preferably within four months from the date  of\tthis
\njudgment. the State Government shall thereafter perform\t its
\npart in accordance with Section 24 and different  paragraphs
\nof the Manual which are applicable in the facts and  circum-
\nstances\t of  the  case.\t We make it clear that\twe  are\t not
\nexpressing  any\t opinion on the merit of the  claim  of\t the
\nappellants to get extension or appointment against the posts
\nof Assistant District Government Counsel (Criminal).   There
\nwill he no order as to costs.\n<\/p>\n
CIVIL APPEALS NOS. 386 & 387 OF 1993
\nSo far the appellants of these appeals are concerned,  their
\nnames  were  put under List ‘B’ by the District\t &  Sessions
\nJudge  in his recommendation saying that they were  “average
\nlawyers”.  Their  case stands on a different  footing.\t The
\nDistrict  & Sessions Judge. who is required to\texpress\t his
\nopinion\t on  the  merit\t  and the  conduct  of\tthe  persons
\nrecommended for appointment or extension of the period
\n984<\/span>
\nas  District Government Counsel, has expressed\tthe  opinion
\nthat  appellants are “average lawyers” and has put  them  in
\nList  B.  In other words, neither the  District\t &  Sessions
\nJudge  has recommended the case of the appellants  of  these
\nappeals\t for extension nor the District\t Magistrate.   Their
\ncase  cannot  be treated at par with the appellants  of\t the
\nother appeals.\tIn such as situation, no useful purpose will
\nbe  served by directing the District Magistrate\t to  perform
\nhis statutory duty as required by sub-section (4)of  Section
\n24 of the Code again, even the respect of these\t appellants.
\nAccordingly,  these appeals are dismissed. there will be  no
\norders as to costs.\n<\/p>\n
V.P.R,\t\t\t C.A. Nos. 722 and 723\/93 allowed.\n<\/p>\n
\t\t\t C.A. Nos. 386 and 387\/93 dismissed.\n<\/p>\n
985<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Harpal Singh Chauhan And Ors. Etc vs State Of U.P on 15 June, 1993 Equivalent citations: 1993 AIR 2436, 1993 SCR (3) 969 Author: S N.P. Bench: Singh N.P. (J) PETITIONER: HARPAL SINGH CHAUHAN AND ORS. ETC. Vs. RESPONDENT: STATE OF U.P. DATE OF JUDGMENT15\/06\/1993 BENCH: SINGH N.P. (J) BENCH: SINGH […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-218399","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHarpal Singh Chauhan And Ors. 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