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PETITIONER: KUMARI SHRILEKHA VIDYARTHI ETC. ETC.

       Vs.

RESPONDENT: STATE OF U.P. AND ORS.

DATE OF JUDGMENT20/09/1990

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) SAHAI, R.M. (J)

CITATION:  1991 AIR  537            1990 SCR  Supl. (1) 625  1991 SCC  (1) 212        JT 1990 (4)   211  1990 SCALE  (2)561  CITATOR INFO :  D          1991 SC1818  (6)

ACT:     Constitution of India, 1950.. Article 14--Requirement of fairness  in  State action--Arbitrariness very  negation  of rule  of law--Contractual obligation cannot divest state  of fairness in its action.

HEADNOTE:     The  writ petitioners/appellants had been  appointed  as Government  Counsel (Civil, Criminal, Revenue) by the  State of U.P. By its circular dated 6.2.1990 the State  terminated the  appointment of all Government Counsel with effect  from 28.2. 1990 irrespective of the fact whether the term of  the incumbent  had expired or was subsisting. At the  same  time the Government directed preparation of fresh panels to  make appointments in place of existing incumbents. The appellants challenged  the  validity of this State  action,  which  was rejected by the High Court.     Before this Court it was contended inter alia on  behalf of  the petitioners/appellants that the relationship of  the Government Counsel with the Government was not merely one of client  and counsel as in the case of a private client,  but one of status in the nature of public employment or appoint- ment  to  a ‘public office’ so that termination of  the  ap- pointment of a Government Counsel could not be equated  with the  termination  by  a private litigant  of  his  Counsel’s engagement, which was purely contractual. without any public element attaching to it.     On behalf of the State it was urged that: (i) the  rela- tionship  of the appointees to these offices  of  Government Counsel in the districts was purely contractual depending on the  terms of the contract and was in the nature of  an  en- gagement  of  a  Counsel by a private  party  who  could  be changed at any time at the will of the litigant, with  there being  no right in the counsel to insist on  continuance  of the engagement; (ii) there was no element of public  employ- ment  in such appointments and the provisions in  the  Legal Remembrancer’s Manual and Section 24 of the Code of Criminal Procedure  were  merely  to provide for  making  a  suitable choice;  (iii)  the  appointment of  a  District  Government

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Counsel was only professional engagement terminable at  will on  either  side  and not appointment to a  post  under  the Government, and the Government had 626 the power to terminate the appointment at any time  ‘without assigning any cause’ and hence this circular did not  suffer from the vice of arbitrariness. Allowing the writ petitions and the appeals, this Court,     HELD:  (1)  The provisions in the  Legal  Remembrancer’s Manual  clearly  show  that the Government  Counsel  in  the districts  are treated as law Officers of the State who  are holders  of an ‘office’ or ‘post’. These provisions  further 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 appointment.     (2) All Government Counsel are paid remuneration out  of the  public  exchequer and there is a clear  public  element attaching to the ‘office’ or ‘post’.     (3)  Clause  3  of para 7.06 of the  L.R.  Manual  which enables the Government to terminate the appointment ‘at  any time  without  assigning any cause’ merely  means  that  the termination  may be made even during the subsistence of  the term  of appointment, and the expression ‘without  assigning any  cause’  means without communicating any  cause  to  the appointee whose appointment is terminated.     (4)  The non-assigning of reasons or the  non-communica- tion 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. Liberty  Oil  Mills  v. Union of India, [1984]  3  SCC  465, referred to.     (5)  In the case of Public Prosecutors, the public  ele- ment flowing from statutory provisions in the Code of Crimi- nal  Procedure, undoubtedly, invest the  Public  Prosecutors with  the  attribute  of holder of a  public  office  ‘which cannot be whittled down by the assertion that their’ engage- ment is purely professional between a client and his  lawyer with no public element attaching to it. 627     Mahadeo v. Shantibhai, [1969] 2 SCC 422; Mundrika Prasad Sinha v. State of Bihar, [1980] 1 S.C.R. 759; Mukul Dalaiand Others  v. Union of India and Others, [1988] 3 SCC  144  and Malloch  v.  Aberdeen  Corporation, [1971] 2  All  ER  1278, referred to.     (6)  The  presence  of public element  attached  to  the ‘office’  or ‘post’ of District Government Counsel of  every category  covered by the impugned circular is sufficient  to attract  Article 14 of the Constitution and bring the  ques- tion  of validity of the impugned circular within the  scope of judicial review.     (7)  The  scope of judicial review  permissible  in  the present  case does not require any  elaborate  consideration since even the minimum permitted scope of judicial review on the ground of arbitrariness or unreasonableness or irration- ality once Article 14 is attracted, is sufficient to invali- date the impugned circular.     (8) Even otherwise and sans the public element so  obvi- ous in these appointments, the appointment and its  concomi- tants  viewed  as purely contractual matters after  the  ap-

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pointment  is  made,  also attract Article  14  and  exclude arbitrariness  permitting  judicial review of  the  impugned State action.     (9)  The personality of the State, requiring  regulation of its conduct in all spheres by requirements of Article 14, does not undergo such a radical change after the making of a contract  merely because some contractual rights  accrue  to the  other party in addition. It is not as if  the  require- ments  of Article 14 and contractual obligations  are  alien concepts, which cannot co-exist.     (10)  The  scope  and permissible  grounds  of  judicial review  in such matters, and the relief which may be  avail- able  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  con- tracts between unequals.     (11)  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. 628     (12) It is significant to note that emphasis now is on review ability of every State action because it stems not from  the nature of function, but from the public nature  of the body exercising that function; and all powers  possessed by  a public authority, howsoever conferred,  are  possessed ‘solely in order that it may use them for the public good’. Jones v. Swansea City Counsel, [1990] 1 W.L.R. 54,  referred to.     (13)  It can no longer be doubted at this point of  time that Article 14 of the Constitution of India applies also to matters  of  governmental policy and if the  policy  or  any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconsti- tutional.     Ramana  Dayaram  Shetty  v.  The  International  Airport Authority  of India, [1979] 3 SCR 1014; Kasturi Lal  Lakshmi Reddy  v. State of Jammu and Kashmir, [1980] 3 SCR 1338  and Col.  A.S. Sangwan v. Union of India, [1980] Supp. SCC  559, referred to.     (14) The basic requirement of Article 14 is fairness  in action  by the State and it is difficult to accept that  the State can be permitted to act otherwise in any field of  its activity,  irrespective of the nature of its function,  when it has the uppermost duty to be governed by the rule of law. Non-arbitrariness,  in substance, is only fair play  in  ac- tion.  This obvious requirement must be satisfied  by  every action  of  the  State or its instrumentality  in  order  to satisfy the test of validity.     M/s Dwarkadas Marlaria and Sons v. Board of Trustees  of the Port of Bombay, [1989] 3 SCC 293 and Mahabir Auto Stores JUDGMENT:     (15)  There  is a presumption of validity of  the  State action and the burden is on the person who alleges violation of  Article  14 to prove the assertion.  However,  where  no plausible  reason or principle is indicated nor is  it  dis- cernible  and  the State action, therefore,  appears  to  be exfacie  arbitrary,  the initial burden to prove  the  arbi- trariness is discharged shifting onus on the State to justi- fy its action as fair and reasonable.     (16)  The wisdom of the policy or the lack of it or  the

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desirability  of  a  better alternative is  not  within  the permissible  scope of judicial review in such cases.  It  is not for the courts to recast the policy or to substitute  it with  another  which is considered to be  more  appropriate, once  the attack on the ground of arbitrariness is  success- fully repelled by 629 showing that the act which was done was fair and  reasonable in the facts and circumstances of the case.      Council  of  Civil Service Union v.  Minister  for  the Civil Service, [1984] 3 All E.R. 935.     (17)  Arbitrariness is the very negation of the rule  of law.  Satisfaction of this basic test in every State  action is  sine  qua non to its validity and in this  respect.  the State cannot claim comparison with a private individual even in the field of contract.     (18)  Every State action must be informed by reason  and it follows, that an act uninformed by reason, is  arbitrary. Rule  of  law  contemplates governance by laws  and  not  by humour, whims or caprices of the men to whom the  governance is entrusted for the time being.     (19)  Irrespective of the nature of appointment  of  the Government Counsel in the districts in the State of U.P  and the  security  of  tenure being minimal as  claimed  by  the State,  the  impugned circular, in order  to  survive,  must withstand the attack of arbitrariness and be supported as an informed decision which is reasonable. S.G. Jaisinghani v. Union of India, [1967] 2 SCR 703.     (20)  In  the present case. the initial  burden  on  the petitioners  appellants has been discharged by showing  that there is no discernible principle for the impugned action at the district level throughout the State of U.P. since  there is nothing in the circular to indicate that such a  sweeping action for all districts throughout the State was  necessary which made it reasonable to change all Government Counsel in the districts throughout the State. even those whose  tenure in office had not expired.     (21) Non-application of mind to individual cases  before issuing a general circular terminating all such appointments throughout the State is itself eloquent of the arbitrariness writ large on the face of the circular. John Wilkes’s case [1770] 4 Burr. 2528.     (22) Arbitrariness is writ large in the impugned  circu- lar  issued  by  the State of Uttar Pradesh.  It  gives  the impression that this action was 630 taken under the mistaken belief of applicability of  "spoils system"  under our Constitution and the cavalier fashion  in which  the  action  has been taken gives it  the  colour  of treating the posts of D.G.Cs. as bounty to be distributed by the  appointing authority at its sweet will. Nothing  worth- while  has  been  shown on behalf of the State  of  U.P.  to support the impugned action as reasonable and non-arbitrary.

& ORIGINAL JURISDICTION: Writ Petition No. 706 of 1990. (Under Article 32 of the Constitution of India).     Dr.  L.M.  Singhvi, Dr. Y.S.  Chitale,  R.K. Garg,  R.N. Trivedi, Addl. Advocate General for the State of U.P,,  Mrs. Swaran Mahajan. Mrs. Geetanjali Mohan, Ms. Anuradha Mahajan. Sunil  Gupta, R. Venkataramani, S.M. Garg, Suresh  Harkauli. Sushil  Harkauli,  Sunil Gupta, A.S.  Pundir,  Suresh  Kumar Misra,  Mahesh Shrivastava, H.D. Pathak, Vishnu  Mathur  and

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Mrs. Shobha Dikshit for the appearing parties. The Judgment of the Court was delivered by     VERMA,  J. This judgment disposes of a bunch of  matters comprising  of some writ petitions under Article 32  of  the Constitution  of  India and special  leave  petitions  under Article  136  of  the Constitution of India,  all  of  which involve  for decision certain common questions. The  special leave  petitions are directed against a common judgment   of the  Allahabad High Court dismissing some writ petitions  in which  the same questions were raised. In view of the  deci- sion of the High Court rejecting those contentions, the writ petitions  were  filed in this Court directly for  the  same purpose.     By one stroke, seemingly resorting to the Spoils  System alien to our constitutional scheme, the Government of  State of  Uttar  Pradesh  has terminated by a  general  order  the appointments  of  all Government Counsel  (Civil,  Criminal, Revenue)  in  all the districts of the State  of  U.P.w.e.f. 26.2. 1990 and directed preparation of fresh panels to  make appointments  in place of the existing incumbents. This  has been  done  by Circular  G.O.  No.  D-284-Seven-Law-Ministry dated  6.2.1990, terminating all the  existing  appointments w.e.f. 28.2. 1990, irrespective of the fact whether the term of the incumbent had expired or was subsisting. The validity of  this State action is challenged in these  matters  after the challenge has been rejected by the Allahabad High Court. They have all been heard together since the common question 631 in  all of them is the validity of the Circular G.O. No.  D- 284-Seven Law-Ministry dated 6.2.1990 issued by the  Govern- ment of State of Uttar Pradesh.     Leave is granted in the Special Leave Petitions and  the appeals  are also heard on merits along with the Writ  Peti- tions.     Broadly, two questions arise for decision by us in  this bunch of matters. These are: Is the impugned circular amena- ble  to  judicial  review?; and if so, is it  liable  to  be quashed  as violative of Article 14 of the  Constitution  of India, being arbitrary?     The  challenge  in all these matters is to  validity  of G.O. No. D-284-Seven-Law-Ministry dated 6th February,  1990, from Shri A.K. Singh, Joint Legal Remembrancer, Justice (Law Ministry)  Section, Government of Uttar Pradesh, to all  the District  Magistrates of Uttar Pradesh with copy to all  the District  Judges of the State for information and  necessary action.  The  main question for decision  in  these  matters being the validity of this circular, it would be appropriate to quote the same in extenso. It reads as under: "Subject:RENEWAL  OF TENURE OF ALL THE  EXISTING  GOVERNMENT COUNSEL,  CALLING OF NEW PANELS FOR NEW APPOINTMENT. XXXX          I  have been directed to inform you on the  subject mentioned above that the Administration has taken a decision to extend the tenure of all the Government Counsel, who  are presently  working,  till 28th February, 1990  only  and  to immediately receive new panels from the District Magistrates for new appointments in their places. 2.  I, therefore, have been directed to state that  all  the Government  Counsel,  presently  engaged  for  the  work  of Civil/Revenue/Criminal  (including  Anti-Dacoity)  and Urban Ceiling may be permitted to work till 28.2.1990 only and for appointments in their place, Administration may send the new panels, after preparing the same in following manner:-- 1. Separate single panal in each of the Civil side, Revenue 632

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side,  Criminal  side  (including  Anti-Dacoity)  and  Urban ceiling  side  fixed for 12 districts, and  separate  single panel  in  each of the courts, functioning at  District  and Tehsil  Headquarters,  may be prepared. It may  be  enlisted therein the names of the work zone, number of courts related to it, the number of sanctioned posts for Government Counsel and  recommended  names  of the Counsel in  terms  of  their seniority.      2.  It  may  be clearly mentioned in  the  panel  which counsel  belong to Scheduled Caste, Scheduled Tribes,  Back- ward Caste and Minority group.      3.  The  panels prepared for civil, revenue  and  urban ceiling  side may contain the recommendations of names  only three times of the presently sanctioned posts.      4. In the criminal side, five times of the names of the present sanctioned posts may be recommended.      5.  The  attested  copies of Bio-Data  of  the  Counsel recommended, attested details of their work during last  two years, certificate of registration as an Advocate,  certifi- cate  of  birth and the attested copies of  certificates  of educational qualifications may also be sent.      6.  The  names of any such counsel,  who  has  practice experience  for less than 7 years, or who has more  than  60 years  of age as on 1.1. 1990, or the person who is  already working at a salaried Government or nonGovernmental posts, a full-time  lecturer in a college, Notary, Marriage  Officer, Executive Qazi or State, may not be included in the  panels. However,  on resignation from the present post, they can  be included in the panel.      7. For preparation of new panel, a general notice which enlists the application, age, conditions of appointment  and the  last date for submission of Bio-Data, may be  prepared. This notice may be put on the Notice Boards of the Local Bar Associations,  and  in the offices of  District  Magistrate, District Judge, Zonal Commissioner, S.D.M. and Munsif Magis- trate. 633  8.  It will be a condition for appointment as a  Government Counsel  that he will not be permitted to do  private  prac- tice. He will be entitled to plead, with permission from the Administration,  only  the  cases of  State  Government  and Central  Government,  State Company Council,  Local  Bodies, Autonomous Institution and Authorities. He will be paid only the monthly remuneration fixed by the Administration and  no fee  will  be  paid  according  to  the  valuation  of   the case/appeal.  No extra fee will also be paid for  any  other work/consultation. It may also be clarified that appointment of  a Government Counsel will be different from the  Govern- ment  employees  and no facilities to  Government  employees will  be applicable to them. The appointment  of  Government Counsel will be done in the form of business engagement  and the  State Government will be entitled to terminate  engage- ment at any time, without giving reasons for it. 3.  The Bio-Data and other desired papers, if received  from the  counsel  within the prescribed date,  may  be  examined minutely, as a special drive and after getting approval from the  District Judge/Munsif Magistrate/SDM, as the  case  may be, the names may be recommended in the panel as per senior- ity position. The details of last two years work, along with the  attested  copies of the  certificates  and  information desired in the enclosed format,‘Ka’ and ‘Kha’ may be sent to the Administration along with the panel. 4. I have also been directed to state that the  appointments made on or after January, 1990, shall not be affected by the above mentioned policy decision and the same shall  continue

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for the prescribed period. 5.  I  have also been directed to clarify  that  the  panels received  prior to release of this Government Order, on  the basis of which, no appointments or. renewal has been made or which are still pending, may be understood as cancelled. 6.  I  have also been directed to request you that  the  new panels  may be prepared in accordance with the above  direc- tion on top priority basis, ‘and the same may be ensured  to be sent to the undersigned in a confidential 634 envelope through a special messenger by 25th February, 1990. sd/-              (A.K. Singh) Joint Legal Remembrancer"     By the above-quoted circular letter dated 6.2. 1990, the decision of the State Government to terminate the engagement of  all the Government Counsel engaged throughout the  State of U.P. for civil/ revenue/criminal (including anti-dacoity) and  urban ceiling work on and from 28.2. 1990 and  to  make appointments  in their place on the basis of new panel  pre- pared  for the purpose was communicated to all the  District Magistrates in the State. Admittedly, this circular was made applicable  to  all the Government  Counsel  throughout  the State  at the district level, howsoever designated  such  as district Government Counsel, Additional District  Government Counsel, etc. There is no dispute that the circular  related to  and  applied  equally  to  all  the  Government  Counsel throughout  the  State irrespective of  their  tenure  whose appointments  were  terminated w.e.f.  28.2.1990  for  being replaced by new appointees. The circular applied equally  to not  only those Government Counsel whose tenure had  already expired or whose tenure was to expire before 28.2. 1990, but also  to  those whose tenure, as a result of  their  earlier appointment,  was  to extend beyond 28.2. 1990, as  well  as those who were entitled to be considered for renewal of  the tenure  on expiry of their earlier tenure. The Challenge  in these  matters  is  not only by some  individuals  who  were adversely affected by the said circular but also by Associa- tion of District Government Counsel. Since the impact of the circular  is on all Government Counsel engaged at  the  dis- trict level throughout the State, the challenge is really in representative capacity on behalf of all of them and this is how  the  challenge has been met on behalf of the  State  of U.P.  in  reply. It is common ground that  the  decision  of these matters will govern the appointment of all  Government Counsel  throughout the State of U.P.at the district  level, in  all  branches, irrespective of the name  or  designation given to the appointment such as District  Government  Coun- sel,  Additional District Government Counsel, etc.     Several  arguments were advanced by the learned  counsel on  both sides relating to the nature of these  appointments about which there is a serious contest between the  parties. In the present case, it is not necessary for us to  consider at length the exact nature of these appoint- 635 ments  which is material only for indicating the  extent  of security  of tenure of the appointee to these offices  since in  our opinion the main attack to the impugned circular  on the ground of arbitrariness can be upheld even assuming  the security  of  tenure  of the appointees  to  be  minimal  as claimed  for  and on behalf of the State of U.P.  We  shall, therefore, only refer to the rival contentions regarding the nature of appointments and then proceed on the basis of  the minimum  status attaching to these appointments  to  examine whether  the ground of arbitrariness is available and  viti- ates the circular.     According to the learned Additional Advocate General  of

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the  State  of U.P., the relationship of the  appointees  to these  offices  of Government Counsel in  the  districts  is purely  contractual depending on the terms of  the  contract and  is  in the nature of an engagement of a  Counsel  by  a private party who can be changed at any time at the will  of the  litigant, with there being no right in the  Counsel  to insist  on continuance of the engagement. The learned  Addi- tional Advocate General contended that for this reason,  the relationship  being  purely  contractual,  which  cannot  be continued  against  the will of either party,  there  is  no scope  for  the argument that the State does  not  have  the right  to change the Government Counsel at its will.  It  is common ground that the appointment, termination and  renewal of  tenure  of all Government Counsel in  the  districts  is governed by certain provisions contained in the Legal Remem- brancer’s  Manual, in addition to Section 24 of the Code  of Criminal  Procedure, 1973, applicable in the case of  public prosecutors. The learned Additional Advocate General did not dispute  that if Article 14 of the Constitution of India  is attracted to this case like all State actions, the  impugned circular  would be liable to be quashed if it  suffers  from the  vice  of arbitrariness. However, his argument  is  that there  is no such vice. In the ultimate analysis, it is  the challenge of arbitrariness which the circular must withstand in order to survive. This really is the main point  involved for decision by us in the present case.     The  nature of appointment of the Government Counsel  in the  districts on the civil, criminal and revenue sides  was hotly debated during the hearing. It was urged on behalf  of the  petitioners/appellants  that the  relationship  of  the Government Counsel with the Government is not merely one  of client  and counsel as in the case of a private client,  but one of status in the nature of public employment or appoint- ment  to  a ‘public office’ so that termination of  the  ap- pointment of a Government Counsel cannot be equated with the termination  by a private litigant of his Counsel’s  engage- ment, which is purely contractual, with- 636 out  any public element attaching to it. It was  urged  that appointment  of  public prosecutors has a  statutory  status also in view of such appointments being required to be  made in accordance with Section 24 of the Code of Criminal Proce- dure,  1973. Reliance was also placed on certain  provisions of the Legal Remembrancer’s Manual, which admittedly  govern and  regulate the appointment of all Government  Counsel  in the  districts as well as the termination of their  appoint- ment and renewal of their tenures. It was contended that the relationship  between  the  Government  and  the  Government Counsel is therefore, not purely contractual in nature as in the  case of a private litigant and his counsel. An  attempt was  also  made to urge that the appointment  of  Government Counsel  is  in the nature of a public employment  with  the attendant  security  of tenure of office and  the  necessary concomitants attaching to it. On the other hand, the learned Additional Advocate General appearing for the State of  U.P. contended  that the relationship between the Government  and the Government Counsel is purely contractual like that of  a private  litigant and his counsel which enables the  Govern- ment  to change its counsel at any time as may be done by  a private litigant in the event of loss of confidence  between them.  He contended that there is no element of  public  em- ployment  in  such appointments and the  provisions  in  the Legal  Remembrancer’s Manual and Section 24 of the  Code  of Criminal Procedure are merely to provide for making a  suit- able choice. We shall briefly refer to some provisions which

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admittedly  regulate  and govern such  appointments,  termi- nation and renewal of tenure of the appointees.     Chapter I of the Legal Remembrancer’s Manual, 1975  Ed., contains  the  interpretations and Para 1.01 says  that  the L.R. Manual is the authoritative compilation of the  Govern- ment  orders and instructions for the conduct of  legal  af- fairs of the State Government. Para 1.06 enumerates the  Law Officers  of  the  Government which  includes  the  District Government  Counsel  (Civil, Revenue, Criminal)  along  with many  others  such  as Judicial  Secretary  and  Legislative Secretary. it is obvious that all of them including  D.G.Cs. are described as holders of some ‘office’ of the State Govt. Chapter  VII contains the necessary provisions  relating  to District  Government  Counsel.  Part A  therein  deals  with appointment  and  conditions of engagement of  the  District Government  Counsel. Para 7.02 deals with the power of  Gov- ernment to appoint Government Counsel in the districts which requires  the Government  to  appoint  District   Government Counsel   (Civil,  Revenue,  Criminal)  and  also,  wherever necessary,  in  the interest of  efficient  and  expeditious disposal of business, to appoint Additional or/and Assistant District Government Counsel to assist the District 637 Government Counsel (Criminal) or (Civil) in discharge of his duties:  Subordinate  District Government  Counsel  for  the conduct of civil cases in outlying towns of a district;  and Assistant  District Government Counsel in outlying towns  of the  district for the conduct of criminal or civil cases  or both. Para 7.03 provides for applications and qualifications for  appointment  to these offices or  posts.  The  District Officer  is  required to consider all the  applications  re- ceived  in consultation with the District Judge, giving  due weight to the claim of the existing incumbents, if any,  and to submit in order of preference the names of legal  practi- tioners, together with the opinion of the District Judge  on the suitability and merits of each candidate. The process of selection  expressly involves the District Judge  and  gives due  weight to his opinion for the obvious reason  that  the District  Judge  is expected to know  best  the  comparative merits  of the candidates for such appointments.  Para  7.04 requires  the Legal Remembrancer to submit  the  recommenda- tions of the District Officer along with his own opinion for the  orders  of the Government  Para 7.06 provides  for  ap- pointment  and renewal, para 7.08 for renewal of  term  ,red para  for maintenance of character roll of  the  appointees. Para 7.07 forbids the D.G.C. so long as he holds the  ‘post’ from  participating  in political activity  like  all  other Government officers and unlike a lawyer engaged by a private part v. These provisions read as under: "7.06.  Appointment and renewal--(1) The legal  practitioner finally selected by the Government may be appointed District Government Counsel for one year from the date of his  taking over charge.          (2)  At the end of the aforesaid period,  the  Dis- trict  Officer  after consulting the  District  judge  shall submit a report On his work and conduct to the Legal  Remem- brancer  together  with the statement of work done  in  Form No. 9. Should his work or conduct be found to be unsatisfac- tory  the  matter shall be reported to  the  Government  for orders. If the report in respect of his work and conduct  is satisfactory, he may be furnished with a deed engagement  in Form  No.  1 for a term not exceeding three  years.  On  his first  engagement a copy of Form No. 2 shall be supplied  to him  and  he shall complete and return it the  Legal  Remem- brancer for record.

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        (3) The appointment of any legal practitioner as  a District Government Counsel is only professional engage- 638 ment  terminable at will on either side and is not  appoint- ment to a post under the Government. Accordingly the Govern- ment reserves the power to terminate the appointment of  any District  Government Counsel at any time  without  assigning any cause.            7.07 Political Activity--The District  Government Counsel  shall  not participate in political  activities  so long  they work as such; otherwise they shall incur  a  dis- qualification to hold the post.            7.08 Renewal of term-- (1) at least three  months before  the  expiry  of the term of  a  District  Government Counsel,  the  District Officer shall after  consulting  the District  Judge  and considering his past  record  of  work, conduct and age, report to the Legal Remembrancer,  together with the statement of work done by him in Form No. 9 whether in  his  opinion  the term of appointment  of  such  counsel should  be  renewed  or not. A copy of the  opinion  of  the District Judge should also be sent along with the  recommen- dations of the District Officer.            (2) Where recommendation for the extension of the term  of a District Government Counsel is made for a  speci- fied period only, the reasons therefore shall also be stated by the District Officer.            (3)  While  forwarding  his  recommendation   for renewal of the term of a District Government Counsel-- (i) the District Judge shall give an estimate of the quality of the Counsels’s work from the Judicial standpoint, keeping in  view the different aspects of a lawyer’s capacity as  it is  manifested  before him in conducting  State  cases,  and specially his professional conduct; (ii)  the District Officer shall give his report  about  the suitability  of  the District Government  Counsel  from  the administrative  point  of  view, his  public  reputation  in general, his character, integrity and professional conduct. 639      (4)  If the Government agrees with the  recommendations of  the District Officer for the renewal of the term of  the Government Counsel, it may pass orders for reappointing  him for a period not exceeding three years.     (5)  If the Government decides not to re-appoint a  Gov- ernment  Counsel, the Legal Remembrancer may call  upon  the District  Officer  to forward fresh recommendations  in  the manner laid down in para 7.03.      (6)  The  procedure prescribed in this  para  shall  be followed on the expiry of every successive period of renewed appointment of a District Government Counsel.      Note--The  renewal beyond 60 years of age shall  depend upon  continuous  good work, sound  integrity  and  physical fitness of the Counsel.     7.09.  Character roll--(1) The District Officer and  the District Judge shall, before the end of every year and  also while leaving the district on transfer, place on record  his opinion on the capacity and work of the District  Government Counsel.  The  District Judge shall  before  recording  such opinion  obtain a report about the work and: conduct of  the District  Government Counsel from the presiding officers  of the  courts, where they are generally required to  practise. Similarly, the District Officer shall before recording  such opinion  obtain a report from the Superintendent  of  Police regarding  the counsel’s capacity for prosecution  of  cases and  assistance  rendered to the investigating  agency.  The record, which shall be confidential, shall be maintained  by

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the District Officer. Every adverse entry shall be  communi- cated  to the District Government Counsel concerned  by  the District Officer, with the prior approval of the Government.     (2)  The  character roll of  every  District  Government Counsel shall also be maintained by the Government in  Judi- cial (Legal Advice) Section. For this purpose, the  District Officer  shall forward to the Legal Remembrancer a  copy  of all  the confidential reports, recorded by him and the  Dis- trict Judge on the work and conduct of the District  Govern- ment Counsel by the first week of May every year 640 for being incorporated in the character roll, maintained  by the Government.          (3)  The District Officer shall forward a  copy  of all the confidential reports, referred to in para 7.09(2) in respect  of District Government Counsel (Criminal)  to  Home (Police) Section of Secretariat also for information.          (4)  Any shortcomings on the part of  the  District Government Counsel shall at once be brought to the notice of the Legal Remembrancer."     These  provisions show that the initial  appointment  is for  a period of one year during which the work and  conduct of the appointee is watched to adjudge his suitability and a report is required to be submitted at the end thereof by the District Officer after consulting the District Judge and  on the  same being found satisfactory, his engagement  is  made for  a term not exceeding three years. Before expiry of  the term  of  three years, the case of the incumbent  is  to  be considered  on  the basis of his work, conduct and  age  for renewal  and the Government is required to decide the  ques- tion  of his reappointment for a period not exceeding  three years on the basis of the report of the District Officer and the opinion of the District Judge. If the Government  agrees with their recommendations, the term of the existing  incum- bent  is renewed for a period not exceeding three years.  It is only if the Government decides not to reappoint a Govern- ment Counsel’ that the Legal Remembrancer may call upon  the District  Officer  to forward fresh recommendations  in  the manner  laid  down  in para 7.03. this procedure  is  to  be followed on the expiry of every successive period of renewed appointment  of District Government Counsel. The age  factor mentioned  in para 7.08 has to be read with the footnote  to it,  which  says that ‘the renewal beyond 60  years  of  age shall depend upon continuous good work, sound integrity  and physical  fitness  of the counsel’. Para 7.09  provides  for maintenance  of  the character roll in  which  the  District Officer and the District Judge are required to record  their opinion on the capacity and work of the District  Government Counsel. Clause 3 of para 7.06, regarding termination of the appointment, would be considered later while dealing with an other  argument of the learned Additional Advocate  General. Part B of Chapter VII lays down ‘Duties’ of D.G.Cs.     The  above  provisions in the L.R. Manual  clearly  show that the Government Counsel in the districts are treated  as Law Officers of the 641 State  who are holders of an ‘office’ or ‘post’. The  afore- said  provisions in Chapter VII relating to appointment  and conditions of engagement of District Government Counsel show that the appointments are to be made and ordinarily  renewed on  objective assessment of suitability of the person  based on  the  opinion of the District Officer  and  the  District Judge; and character roll is maintained for keeping a record of  the suitability of the appointee to enable an  objective assessment  for  the  purpose of his continuance  as  a  Law

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Officer in the district. There arc provisions to bar private practice and participation in political activity by  D.G.Cs. Apart from clause 3 of para 7.06 to which we shall advert  a little  later,  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  ap- pointment.  Suitability  of the appointee  being  the  prime criterion  for  any  such appointment, it  is  obvious  that 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 Govt. Counsel are paid remuneration out of the public exchequer and there is a clear public  element attaching to the ‘office’ or ‘post’.     The  learned Additional Advocate General contended  that clause  3 of para 7.06 says that the appointment of  a  Dis- trict  Government  Counsel is only  professional  engagement terminable  at will on either side and not appointment to  a post under the Government; and the Government has the  power to terminate the appointment at any- time ‘without assigning any  cause’. He contended that this power to  terminate  the appointment at any time without assigning any cause and  the clear  statement that the appointment is  only  professional engagement  terminable at will on either side is  sufficient to  indicate that the relationship is the same as that of  a private client and his counsel. In our opinion, this  provi- sion has to be read not in isolation, but in the context  in which  it appears and along with the  connected  provisions, already  referred. The expression ‘professional  engagement’ is  used  therein to distinguish it from ‘appointment  to  a post under the Government’ in the strict sense. This, howev- er,  does  not necessarily 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 with no public element attaching to it. This part of 642 clause 3 of para 7.06 means only this and no more. The other part  of clause 3 which enables the Government to  terminate the  appointment ‘at any time without assigning  any  cause’ can  also not be considered in the manner, suggested by  the learned Additional Advocate General. The expression ‘at  any time’  merely  means that the termination may be  made  even during the subsistence of the term of appointment and  ‘wit- hout  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 to  be assigned  or communicated to the appointee. It was  held  in Liberty  Oil Mills and Others v. Union of India and  Others, [1984] 3 SCC 465 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  arbi- trary. 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

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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  termina- tion  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. The construction, suggested  on behalf of the State of U.P. of this provision, if  accepted, would amount to conceding arbitrary power of termination  to the Government, which by itself is sufficient to reject  the contention and thereby save it from any attack to its valid- ity.     We  may  now  refer to some provisions of  the  Code  of Criminal  Procedure, 1973, relating to  Public  Prosecutors. Section 24 provides for appointment of Public Prosecutors in the High Courts and the districts by the Central  Government or the State Government. We are here concerned only with the appointment of Public Prosecutors by the State Government in the  districts.  Sub-section 3 of Section 24 says  that  for every district, the State Government shall appoint a  Public Prosecutor  and  may  also appoint one  or  more  Additional Public Prosecu- 643 tors  for the district. Sub-section 4 requires the  District Magistrate to prepare a panel of names of persons considered fit for such appointments, in consultation with the  Session Judge. Sub-section 5 contains an embargo against appointment of any person as the Public Prosecutor or Additional  Public Prosecutor  for the district by the State Government  unless his name appears in the panel prepared under sub-section  4. Sub-section  6  provides for such appointments, where  in  a State  there exists a regular Cadre of Prosecuting  Officers but  if no suitable person is available in such cadre,  then the appointment has to be made from the panel prepared under sub-section  4.  Sub-section 7 says that a person  shall  be eligible  for  such appointment only after he  has  been  in practice  as  an  advocate for not less  than  seven  years. Section  25 deals with the appointment of  Assistant  Public Prosecutors  in the district for conducting  prosecution  in the Courts of Magistrate. In the case of Public  Prosecutors also known as District Government Counsel (Criminal),  there can  be  no doubt about the statutory element  attaching  to such appointments by virtue of these provisions in the  Code of Criminal 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 judgment is pronounced. This power of the Public  Prose- cutor in charge of the case is derived from statute and  the guiding consideration for it, must be the interest of admin- istration of justice. There can be no doubt that this  func- tion  of the Public Prosecutor relates to a  public  purpose entrusting him with the responsibility of so acting only  in the  interest of administration of justice. In the  case  of Public  Prosecutors, this additional public element  flowing from statutory provisions in the Code of Criminal Procedure, undoubtedly.  invest  the Public Prosecutors  with  the  at- tribute  of holder of a public office which cannot be  whit- tled  down by the assertion that their engagement is  purely professional between a client and his lawyer with no  public

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element attaching to it.     A  brief reference to some decisions of this  Court,  in which  the character of engagement of a  Government  Counsel was  considered. may be made. In Mahadeo v.  Shantibhai  and Ors., [1969] 2 SCR 422. it was held that a lawyer engaged by the  Railway  Administration during the continuance  of  the engagement was holding an ‘office of profit’. The engagement of the Railway Counsel was similar to that of the Government Counsel  in  the present case. It was pointed  out  that  by ‘office’ is meant the right and duty to exercise an  employ- ment  or a position of authority and trust to which  certain duties are attached; 644 and such an engagement satisfied that test. Even though  the decision  was  rendered in the context  of  disqualification under the Election Law by holding an ‘office of profit’, yet it is useful for appreciating the nature of such an  engage- ment  or  appointment  of a counsel by  the  Government.  In Mundrika  Prasad Sinha v. State of Bihar, [1980] 1 SCR  759. the nature of appointment of Government Pleaders came up for consideration  and it was said that the office of a  Govern- ment  Pleader.  as defined in Section 2(7) of  the  Code  of Civil Procedure.1908  is a public office. Krishna Iyer.  J.. in  that  decision, also pointed out  that  the  ‘Government under  our Constitution shall not play with law  offices  on political  or  other  impertinent consideration  as  it  may affect  the legality of the action and subvert the  rule  of law  itself’. In that decision. an earlier  Madras  decision was quoted with approval. wherein. it was clearly held  that the duties of the Government Pleader are of a public  nature and  that  the office of a Government Pleader  is  a  public office. The relevant extract is as under:          ....  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  460  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 Pleader. Madras are duties of a public nature. Besides. as already explained the public are genuinely concerned with the manner in which  Government Pleader  discharges  his duties because. if he  handles  his cases badly. they have ultimately to foot the bill  .... XXXXX                                                  XXXXX XXXXX           consider  that the most useful test to be  applied to  determine the question is that laid down by Erie, J.  in (1851)  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." Similarly.  in Mukul Dalai and Others v. Union of India  and Others.  [1988] 3 SCC 144. it was held that the  ‘office  of the Public Prosecutor is 645 a public one’ and ‘the primacy given to the Public  Prosecu- tor  under  the Scheme of the Code (Cr.P.C.)  has  a  social purpose’.      It  is useful in this context to refer to the  decision in  Malloch v. Aberdeen Corporation. [1971] 2 All  ER  1278. That  was  d case of dismissal of an employee  of  a  public authority whose appointment during the authority’s pleasure. Examining  the  scope of judicial review.  Lord  Wilberforce said:

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"The  appellant’s challenge to the action taken by  the  re- spondents raises a question in my opinion. of administrative law.  The respondents are a public authority. the  appellant holds a public position fortified by statute. The considera- tions  which determine whether he has been  validly  removed from  that position go beyond the mere contract  of  employ- ment, though no doubt including it. They are. in my opinion. to  be tested broadly on arguments of public policy and  not to  be resolved on narrow verbal distinctions The  appellant is  entitled  to  complain if. whether in  procedure  or  in substance, essential requirements, appropriate to his situa- tion  in the public service under the respondents, have  not been observed and. in case of non-observance. to come to the courts for redress. XXXXX                                                  XXXXX XXXXX           .....   So.  while  the  courts  will  necessarily respect  the  right. for good reasons of public  policy.  to dismiss  without  assigned reasons. this should not.  in  my opinion,  prevent  them  from examining  the  framework  and context  of the employment to see whether elementary  rights are conferred on him expressly or by necessary  implication. and how tar these extend  ......       are.  therefore. unable to accept the argument of  the learned Additional Advocate General that the appointment  of District Government Counsel by the State 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 an),  time  at the sweet will of  the  Government  excluding judicial  review. We have already indicated the presence  of public  element attached to the ‘office’ or ‘post’  of  Dis- trict  Government Counsel of every category covered  by  the impugned circular. This is 646 sufficient  to  attract Article 14 of the  Constitution  and bring  the  question of validity of  the  impugned  circular within the scope of judicial review.     The scope of judicial review permissible in the  present case,  does  not require any elaborate  consideration  since even  the minimum permitted scope of judicial review on  the ground of arbitrariness or unreasonableness or  irrationali- ty,  once Article 14 is attracted, is sufficient to  invali- date the impugned circular as indicated later. We need  not, therefore, deal at length with the scope of judicial  review permissible  in  such cases since several  nuances  of  that ticklish  question  do not arise for  consideration  in  the present case.     Even otherwise and sans the public element so obvious in these  appointments,  the appointment and  its  concomitants viewed  as purely contractual matters after the  appointment is  made, also attract Article 14 and exclude  arbitrariness permitting  judicial  review of the impugned  State  action. This aspect is dealt with hereafter.     Even apart from the premise that the ‘office’ or  ‘post’ of D.G.Cs. has a public element which alone is sufficient to attract the power of judicial review for testing validity of the  impugned  circular on the anvil of Article 14,  we  are also  clearly of the view that this power is available  even without  that element on the premise that after the  initial appointment. the matter is purely contractual. Applicability of  Article 14 to all executive actions of the  State  being settled  and  for the same reason its applicability  at  the threshold  to  the making of a contract in exercise  of  the executive  power being beyond dispute, can it be  said  that

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the State can thereafter cast off its personality and  exer- cise  unbridled  power  unfettered by  the  requirements  of Article 14 in the sphere of contractual matters and claim to be governed therein only by private law principles  applica- ble  to private individuals whose rights flow only from  the terms  of  the contract without anything more?  We  have  no hesitation  in  saying that the personality  of  the  State, requiring  regulation of its conduct in all spheres  by  re- quirements  of Article 14, does not undergo such  a  radical change  after the making of a contract merely  because  some contractual rights accrue to the other party in addition. It is not as if the requirements of Article 14 and  contractual obligations are alien concepts. which cannot co-exist.     The  Preamble of the Constitution of India  resolves  to secure  to  all its citizens Justice, social.  economic  and political;  and  Equality of status and  opportunity.  Every State action must be aimed at achieving 647 this goal. Part IV of the Constitution contains  ‘Directives Principles  of  State Policy which are  fundamental  in  the governance  of the country and are aimed at securing  social and  economic freedoms by appropriate State action which  is complementary to individual fundamental rights guaranteed in Part III for protection against excesses of State action  to realise the vision in the Preamble. This being the  philoso- phy of the Constitution, can it be said that it contemplates exclusion of Article 14--non-arbitrariness which is basic to rule  of law--from State actions in contractual  field  when all  actions  of  the State are meant for  public  good  and expected  to  be fair and just? We have no  doubt  that  the Constitution  does  not  envisage or  permit  unfairness  or unreasonableness  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 contracts between unequals.     There is an obvious difference in the contracts  between private parties and contracts to which the State is a party, Private  parties  are  concerned only  with  their  personal interest  whereas the State while exercising its powers  and discharging its functions, acts indubitably, as is  expected of it, for public good and in public interest. The impact of every  State action is also on public interest. This  factor alone is sufficient to import at least the minimal  require- ments of public law obligations and impress with this  char- acter the contracts made by the State or its  instrumentali- ty.  It  is a different matter that the  scope  of  judicial review  in respect of disputes failing within the domain  of contractual obligations may be more limited and in  doubtful cases the parties may be relegated to adjudication of  their rights  by resort to remedies provided for  adjudication  of purely  contractual disputes. However, to the extent,  chal- lenge  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  fails  within the domain of contractual obligations would not relieve  the State  of its obligation to comply with the  basic  require- ments of Article 14. To this extent, the obligation is of  a

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public  character invariably in every case  irrespective  of there being any other right or obligation in addition there- to.  An additional contractual obligation cannot divest  the claimant of the guarantee under Article 14 648 of non-arbitrariness at the hands of the State in any of its actions.     Thus,  in a case like the present, if it is  shown  that the  impugned  State  action is  arbitrary  and,  therefore, violative of Article 14 of the Constitution, there can be no impediment in striking down the impugned act irrespective of the  question  whether an additional right,  contractual  or statutory,  if any, is also available to the aggrieved  per- sons.     The State cannot be attributed the sprit personality  of Dr.  Jekyll and Mr. Hyde in the contractual field so  as  to impress  on it all the characteristics of the State  at  the threshold while making a contract requiring it to fulfil the obligation of Article 14 of the Constitution and  thereafter permitting it to cast off its garb of State to adorn the new robe  of a private body during the subsistence of  the  con- tract  enabling  it to act arbitrarily subject only  to  the contractual obligations and remedies flowing from it. It  is really  the  nature  of its personality as  State  which  is significant and must characterize all its actions, in  what- ever  field, and not the nature of function, contractual  or otherwise,  which  is  decisive of the  nature  of  scrutiny permitted  for  examining the validity of its act.  The  re- quirement of Article 14 being the duty to act fairly, justly and reasonably, there is nothing which militates against the concept  of  requiring the State always to so act,  even  in contractual matters. There is a basic difference between the acts of the State which must invariably be in public  inter- est  and those of a private individual, engaged  in  similar activities, being primarily for personal gain, which may  or may  not promote public interest. Viewed in this manner,  in which  we find no conceptual difficulty or  anachronism,  we find no reason why the requirement of Article 14 should  not extend  even in the sphere of contractual matters for  regu- lating the conduct of the State activity.     In Wade’s Administrative Law, 6th Ed., after  indicating that  ‘the  powers  of public  authorities  are  essentially different  from those of private persons’, it has been  suc- cinctly stated at p. 400-401 as under:          ....  The whole conception of unfettered discretion is  inappropriate  to a public  authority,  which  possesses powers  solely in order that it may use them for the  public good.          There  is nothing paradoxical in the imposition  of such  legal limits. It would indeed be paradoxical  if  they were not imposed. Not is this principle an oddity of British or 649 American law: it is equally prominent in French law. Nor  is it  a special restriction which fetters only local  authori- ties:  it applies no less to ministers of the Crown. Nor  is it  confined  to the sphere of administration:  it  operates wherever  discretion is given for some public  purpose,  for example where a judge has a discretion to order jury  trial. It  is only where powers are given for the personal  benefit of  the  person empowered that the discretion  is  absolute. Plainly this can have no application in public law.          For  the same reasons there should in principle  be no  such  thing as unreviewable  administrative  discretion, which  should  be just as much a contradiction in  terms  as

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unfettered discretion. The question which has to be asked is what  is the scope of judicial review, and in a few  special cases  the scope for the review of  discretionary  decisions may be minimal. It remains axiomatic that all discretion  is capable  of abuse, and that legal limits to every power  are to be found somewhere. (emphasis supplied) The  view, we are taking is, therefore, in  consonance  with the current thought in this field. We have no doubt that the scope of judicial review may vary with reference to the type of matter involved, but the fact that the action is reviewa- ble,  irrespective of the sphere in which it  is  exercised, cannot be doubted.     A  useful  treatment of the subject is to  be  found  in (1990)  106 L.Q.R. at pages 277 to 292 in an article  ‘Judi- cial  Review and Contractual Powers of Public  Authorities’. The  conclusion drawn in the article on the basis of  recent English decisions is that ‘public law principles designed to protect  the  citizens should apply because  of  the  public nature of the body, and they may have some role in  protect- ing the public interest’. The trend now is towards  judicial re,dew of contractual powers and the other activities of the Government. Reference is made also to the recent decision of the Court of Appeal in Jones v. Swansea City Council, [1990] 1 W.L.R. 54, where the Court’s clear inclination to the view that  contractual powers should generally be  reviewable  is indicated,  even though the Court of Appeal faltered at  the last step and refrained from saying so. It is significant to note  that emphasis now is on reviewability of  every  State action because it stems not from the nature of function, but from the public nature of the body 650 exercising  that  function; and all powers  possessed  by  a public authority, howsoever conferred, are possessed ‘solely in order that it may use them for the public good’. The only exception limiting the same is to be found in specific cases where such exclusion may be desirable for strong reasons  of public policy. This, however, does not justify exclusion  of reviewability  in the contractual field involving the  State since it is no longer a mele private activity to be excluded from public view or scrutiny.     Unlike  a private party whose acts uninformed by  reason and  influenced  by personal  predilections  in  contractual matters  may  result  in adverse consequences  to  it  alone without  affecting the public interest, any such act of  the State  or a public body even in this field  would  adversely affect the public interest. Every holder of a public  office by virtue of which he acts on behalf of the State or  public body  is  ultimately accountable to the people in  whom  the sovereignty vests. As such, all powers so vested in him  are meant  to  be exercised for public good  and  promoting  the public interest. This is equally true of all actions even in the field of contract. Thus, every holder of a public office is  a  trustee whose highest duty is to the  people  of  the country and, therefore, every act of the holder of a  public office,  irrespective of the label classifying that act,  is in  discharge  of public duty meant  ultimately  for  public good.  With the diversification of State activity in a  Wel- fare State requiring the State to discharge its wide-ranging functions even through its several instrumentalities,  which requires  entering into contracts also, it would  be  unreal and  not pragmatic, apart from being unjustified to  exclude contractual  matters  from the sphere of State  actions  re- quired  to be non-arbitrary and justified on the  touchstone of Article 14.

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   Even assuming that it is necessary to import the concept of  presence  of some public element in a  State  action  to attract  Article 14 and permit judicial review, we  have  no hesitation in saying that the ultimate impact of all actions of  the State or a public body being undoubtedly  on  public interest,  the requisite public element for this purpose  is present also in contractual matters. We, therefore, find  it difficult  and unrealistic to exclude the State  actions  in contractual matters, after the contract has been made,  from the  purview of judicial review to test its validity on  the anvil of Article 14.     It  can no longer be doubted at this point of time  that Article  14  of the Constitution of India  applies  also  to matters  of  governmental policy and if the  policy  or  any action of the Government, even in 651 contractual  matters, fails to satisfy the test of  reasona- bleness,  it would be unconstitutional. See  Ramana  Dayaram Shetty  v. The International Airport Authority of India  and Ors.,  [1979]  3 SCR 1014 and Kasturi Lal Lakshmi  Reddy  v. State  of  Jammu and Kashmir & Anr., [1980] 3 SCR  1338.  In Col.  A.S. Sangwan v. Union of India and Ors., [1980]  Supp. SCC 559, while the discretion to change the policy in  exer- cise  of  the executive power, when not  trammelled  by  the statute  or rule, was held to be wide, it was emphasised  as imperative  and implicit in Article 14 of  the  Constitution that  a change in policy must be made fairly and should  not give  the impression that it was so done arbitrarily  or  by any ulterior criteria. The wide sweep of Article 14 and  the requirement of every State action qualifying for its validi- ty on this touch-stone, irrespective of the field of activi- ty  of the State, has long been settled. Later decisions  of this Court have reinforced the foundation of this tenet  and it would be sufficient to refer only to two recent decisions of this Court for this purpose.     In M/s Dwarkadas Marfatia and Sons v. Board of  Trustees of  the Port of Bombay,[1989] 3 SCC 293, the matter was  re- examined in relation to an instrumentality of the State  for applicability of Article 14 to all its actions. Referring to the earlier decisions of this Court and examining the  argu- ment  for applicability of Article 14, even  in  contractual matters,  Sabyasachi  Mukharji,  J. (as  the  learned  Chief Justice  then  was),  speaking for himself  and  Kania,  J., reiterated that ‘every action of the State or an  instrumen- tality  of  the  State must be informed  by  reason   ...... actions uninformed by reason may be questioned as  arbitrary in  proceedings under Article 226 or Article 32 of the  Con- stitution.’ Ranganathan, J. did not express ‘any opinion  on this  point  but  agreed with the conclusion  of  the  other learned Judges on the facts of the case. It is obvious  that the conclusion on the facts of the case could not be reached by Ranganathan, J. without examining them and this could  be done  only on the basis that it was permissible to make  the judicial  review. Thus, Ranganathan, J. also  applied  that, principle  without  saying so. In view of  the  wide-ranging and,  in essence, all pervading sphere of State activity  in discharge  of its, welfare functions, the  question  assumes considerable  importance  and cannot be shelved.  The  basic requirement of Article 14 is fairness in action by the State and  we  find it difficult to accept that the State  can  be permitted  to  act otherwise in any field of  its  activity, irrespective of the nature of its function, when it has  the uppermost  duty  to be governed by the rule.  of  law.  Non- arbitrariness, in substance, is only fair play in action. We have  no doubt that this obvious requirement must be  satis-

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fied by every action of the State or its instrumentality  in order to 652 satisfy the test Of validity.     it is this aspect which has been considered at length by Sabyasachi  Mukharji, j. (as the learned Chief justice  then was)  in M/s Dwarkadas Marfatia’s case (supra) even  though, that  was  a case of statutory exemption granted  under  the Rent  Act to an instrumentality of the State and it  was  in that  context  that the exercise of power to  terminate  the contractual  tenancy  was examined. All  the  same,  without going  into the question whether the obligation of  the  in- strumentality  to act in pursuance of public purpose, was  a public law purpose or private law purpose, it was held  that the  obligation  to act in pursuance of public  purpose  was alone  sufficient  to attract Article 14. It was  held  that there  was an implied obligation in respect of the  dealings with the tenants/occupants of the authority to act in public interest/purpose. It was emphasised that every state  action has  to  be  for a public purpose and  must  promote  public benefit. Referring to some earlier decisions, it was reiter- ated that all State actions ‘whatever their mien’ are amena- ble to constitutional limitations, the alternative being  to permit them ‘to flourish as an imperium in imperio’. It  was pointed  out that ‘governmental policy would be  invalid  as lacking in public interest, unreasonable or contrary to  the professed  standards’, if it suffers from this vice. It  was stated  that  every State action must be reasonable  and  in public  interest and an infraction of that duty is  amenable to  judicial  review.  The extent  of  permissible  judicial review was indicated by saying that ‘actions are amenable to judicial  review only to the extent that the State must  act validly  for a discernible reason, not whimsically  for  any ulterior purpose’. It is sufficient to quote from the  judg- ment of Mukharji, 3. (as the learned Chief Justice then was) the following extract: "   .....   Where there is arbitrariness  in  State  action, Article  14 springs in and judicial review strikes  such  an action down. Every action of the executive authority must be subject  to rule of law and must be informed by reason.  So, whatever be the activity of the public authority, it  should meet the test of Article 14  ...... (emphasis supplied) This  decision clearly shows that no doubt  was  entertained about the applicability of Article 14 of the Constitution to an  action of the State or its instrumentality,  even  where the action was taken under the terms of a contract of tenan- cy  which alone applied by virtue of the  exemption  granted under the Rent Act excluding the applicability of the provi- sions thereof. 653     In another recent decision in Mahabir Auto Stores & Ors. v.  Indian Oil Corporation & Ors., J.T. 1990 1 S.C. 363,  it was  held that Article 14 was attracted even where  the  ag- grieved person did not have the benefit of either a contrac- tual  or a statutory right. The grievance in that  case  was made  by  a person who was not a dealer of  the  Indian  Oil Corporation  but merely claimed to have been treated as  one by  a  long course of conduct. it was held  by  the  learned Chief justice that the impugned act of the Indian Oil Corpo- ration was an administrative decision and could be impeached on the ground that it was arbitrary or violative of  Article 14  of the Constitution. It was emphasised that  the  Indian Oil  Corporation being an instrumentality of the  State  was bound  to  act fairly; and that ‘fairness  in  such  actions

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should  be perceptible, if not transparent’. If  Article  14 was applied even without the benefit of a contract of  deal- ership, the position cannot be worse with the added  benefit of  a contract. With respect, we concur with the view  about the impact of Article 14 of the Constitution on every  State action  as indicated by the learned Chief Justice  in  these two recent decisions.     No  doubt, it is true, as indicated by us earlier,  that there  is a presumption of validity of the State action  and the burden is on the person who alleges violation of Article 14  to  prove  the assertion. However,  where  no  plausible reason  or principle is indicated nor is it discernible  and the impugned State action, therefore, appears to be ex facie arbitrary, the initial burden to prove the arbitrariness  is discharged shifting onus on the State to justify its  action as  fair and reasonable. If the State is unable  to  produce material  to justify its action as fair and reasonable,  the burden on the person alleging arbitrariness must be held  to be  discharged. The scope of judicial review is  limited  as indicated  in Dwarkadas Marfatia’s case (supra)  to  oversee the  State action for the purpose of satisfying that  it  is not  vitiated by the vice of arbitrariness and no more.  The wisdom  of the policy or the lack of it or the  desirability of a better alternative is not within the permissible  scope of  judicial review in such cases. it is not for the  courts to recast the policy or to substitute it with another  which is considered to be more appropriate, once the attack on the ground of arbitrariness is successfully repelled by  showing that the act which was done, was fair and reasonable in  the facts  and  circumstances of the case. As indicated  by  Di- plock, L.J., in Council of Civil Service Unions v.  Minister for  the  Civil Service, [1984] 3 All ER 935, the  power  of judicial  review  is limited to the grounds  of  illegality, irrationality  and  procedural impropriety. In the  case  of arbitrariness, the defect of irrationality is obvious. 654     In our opinion, 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,  irrespec- tive 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 is for  this reason  that we base our decision on the ground  that  inde- pendent of any statutory right, available to the appointees, and  assuming for the purpose of this case that  the  rights flow  only  from the contract of appointment,  the  impugned circular,  issued in exercise of the executive power of  the State, must satisfy Article 14 of the Constitution and if it is  shown to be arbitrary, it must be struck down.  However, we  have referred to certain provisions relating to  initial appointment,  termination or renewal of tenure  to  indicate that  the  action is controlled at least by  settled  guide- lines, followed by the State of U.P., for a long time.  This too  is relevant for deciding the question of  arbitrariness alleged in the present case.     It  is now too well-settled that every State action,  in order  to  survive, must not be susceptible to the  vice  of arbitrariness which is the crux of Article 14 of the Consti- tution  and basic to the rule of law, the system which  gov- erns  us. Arbitrariness is the very negation of the rule  of law.  Satisfaction of this basic test in every State  action is  sine qua lion tO its validity and in this  respect,  the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to  be

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borne in the mind.     The  meaning  and true import of arbitrariness  is  more easily  visualized  than precisely stated  or  defined.  The question,  whether an impugned act is arbitrary or  not,  is ultimately  to be answered on the facts and in  the  circum- stances of a given case. An obvious test to apply is to  see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasona- bleness.  Where  a mode is prescribed for doing an  act  and there is no impediment in following that procedure, perform- ance  of  the act otherwise and in a manner which  does  not disclose any discernible principle which is reasonable,  may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act  unin- formed  by  reason, is arbitrary. Rule of  law  contemplates governance  by laws and not by humour, whims or caprices  of the  men  to whom the governance is entrusted for  the  time being.  It is trite that be you ever so high, the  laws  are above you’. This is what men in power must remember, always. 655     Almost a quarter century back, this Court in S.G.  Jais- inghani v. Union of India and Ors., [1967] 2 SCR 703, at  p. 7  18-19, indicated the test of arbitrariness and  the  pit- falls  to  be avoided in all State actions to  prevent  that vice, in a passage as under: "In  this  context  it is important to  emphasize  that  the absence  of  arbitrary power is the first essential  of  the rule  of law upon which our whole constitutional  system  is based. In a system governed by rule of law, discretion, when conferred  upon  executive  authorities,  must  be  confined within  clearly  defined limits. The rule of law  from  this point  of  view means that decisions should be made  by  the application  of known principles and rules and, in  general, such decisions should be predictable and the citizen  should know where he is. If a decision is taken without any princi- ple  or  without  any rule it is unpredictable  and  such  a decision is the antithesis of a decision taken in accordance with   the   rule   of  law.   (See   Dicey--"Law   of   the Constitution"-Tenth Edn., Introduction cx). "Law has reached its finest moments", stated Douglas, J. in United States  v. Wunderlick,  (*), "when it has freed man from the  unlimited discretion  of some ruler ... Where discretion is  absolute, man has always suffered". It is in this sense that the  rule of law may be said to be the sworn enemy of caprice. Discre- tion,  as Lord Mansfield stated it in classic terms  in  the case  of John Wilker (*), "means sound discretion guided  by law. It must be governed by rule, not humour: it must not be arbitrary, vague and fanciful."     After Jaisinghani’s case (supra), long strides have been taken in several well-known decisions of this Court  expand- ing  the  scope of judicial review in such matters.  It  has been emphasized time and again that arbitrariness is anathe- ma  to  State action in every sphere and wherever  the  vice percolates,  this Court would not be impeded by  technicali- ties to trace it and strike it down. This is the surest  way to  ensure  the  majesty of rule of law  guaranteed  by  the Constitution of India. It is, therefore, obvious that  irre- spective  of  the nature of appointment  of  the  Government Counsel in the districts in the State of U.P. and the  secu- rity  of tenure being even minimal as claimed by the  State, the  impugned circular, in order to survive, must  withstand the attack of arbitrariness and be supported as an  informed decision which is reasonable. 656     No  doubt, it is for the person  alleging  arbitrariness

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who  has  to prove it. This can be done by  showing  in  the first instance that the impugned State action is  uninformed by  reason inasmuch as there is no discernible principle  on which  it is based or it is Contrary to the prescribed  mode of  exercise  of the power or is unreasonable.  If  this  is shown, then the burden is shifted to the State to repel  the attack  by disclosing the material and reasons which led  to the  action  being  taken in order to show that  it  was  an informed  decision  Which was reasonable. If after  a  prima facie case of arbitrarineSs is made out, the State is unable to  show  that the decision is an informed action  which  is reasonable, the State action must perish as arbitrary.     In the present case. the initial burden on the petition- ers/appellants has been discharged by showing that there  is no  discernible  principle for the impugned  action  at  the district  level throughout the State of U.P. since there  is nothing  in  the circular to indicate that such  a  sweeping action for all districts throughout the State was  necessary which made it reasonable to change all Government Counsel in the districts throughout the State, even those whose  tenure in  office had not expired. Such a drastic action  could  be justified  only  on the basis of some  extraordinary  ground equally  applicable  to all Government Counsel in  the  dis- tricts  throughout  the State which is reasonable.  No  such reason appears in the circular.     The  impugned  circular  itself does  not  indicate  the compelling reason, if any, for the drastic step of replacing all  the Government Counsel in every branch at the  district level throughout the State of U.P., irrespective of the fact whether the tenure of the incumbent had expired or not.  The learned Additional Advocate General stated that the circular was  issued because the existing panels were made  in  1985, 1986 and 1987 and were considered to be not too proximate in point  of  time in the year 1990 for  being  continued.  The reason,  if any, for considering such en bloc change  neces- sary has not been disclosed either in the circular or at the hearing in addition to what is said in para 29 of the  coun- ter-affidavit  of  A.K. Singh, which is referred  later.  On behalf  of the petitiOners/appellants, it was  alleged  that the  en  masse change at the district level  throughout  the State of U.P. was made only for political reasons on account of  the  recent change in the State Government. We  deem  it unnecessary to go into this question for want of any specif- ic material either way. Moreover, the arbitrariness, if any, of such an act, would be equally applicable irrespective  of the  change in the Government, which, if at all, would  only strengthen  the  argument in case  arbitrariness  is  proved otherwise. The only reason given 657 in  the counter-affidavit of A.K. Singh, Joint  Secretary  & Joint Legal Rememberancer, Government of U.P., is in para 29 thereof which reads as under: "That  the contents of para 38 of the writ petition are  not admitted. It is denied that the government took the  present decision with a political motive and in an arbitrary manner. It  is  also submitted that the decision  to  terminate  the prOfessional  engagement has been taken in order to  stream- line  the  conduct  of the government  cases  and  effective prosecution thereof."     It is difficult to appreciate this as a reasonable basis for  the drastic and sweeping action throughout  the  State, particularly when the provisions in the Legal Remembrancer’s Manual  referred earlier provide ordinarily for  renewal  of the tenure Of the appointees. To say the least. the contents of para 29 of this counter-affidavit Which alone are  relied

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on to disclose the reasons for the circular are  beautifully vague and convey nothing of substance and cannot furnish any tangible support to the impugned circular. It was stated  by the learned Additional Advocate General that many of the old incumbents were to be re-appointed even after this  exercise and, therefore, a wholesale change was not to be made. If at all.  this submission discloses a further infirmity  in  the impugned  circular. If it be true that many of the  existing appointees  were  to be continued by giving them  fresh  ap- pointments.  the action of first terminating their  appoint- ment  and then giving them fresh appointment is. to say  the least,  Uninformed by reason and does not even  fail  within the scope of the disclosed reason ‘to streamline the conduct of  government cases and effective prosecution thereof’.  It is  obvious that at least in respect of all such  appointees who  are to be continued by giving them fresh  appointments, the act of terminating their appointment in one stroke,  was without application of mind by anyone to the question wheth- er a change was at all needed in their case. It would be too much  to  assume that every Government Counsel  in  all  the districts  of the State of U.P. was required to be  replaced in  order to streamline the conduct of government cases  and indeed. that is not even the case of the State which  itself says that many of them were to be re-appointed.     Non-application  of  mind  to  individual  cases  before issuing a general circular terminating all such appointments throughout  the  State  of U.P. is itself  eloquent  of  the arbitrariness writ large on the face of the circular. It  is obvious that issuance of the impugned circular 658 was  not  governed by any rule but by the whim or  fancy  of someone totally unaware of the requirements of rule of  law, neatly  spelled  out in the case of John  Wilkes,  [1770]  4 Burr.  2528  more than two centuries back  and  quoted  with approval  by this Court almost a quarter century earlier  in Jaisinghani’s case (supra). We have considered it  necessary to re-emphasize this aspect and reiterate what has been said so  often by this Court only because we find that some  per- sons  entrusted  with the task of governance  appear  to  be unaware  of  the fact that the exercise of  discretion  they have must be governed by rule, not by humour, whim,  caprice or  fancy or personal predilections. It also disturbs us  to find  that the Legal Remembrancer’s Department of the  State of  U .P. which has the duty to correctly advise  the  State Government  in  such  matters. overlooked  the  obvious  and failed  to discharge its bounden duty of correctly  advising the  State  Government in matters of law. We would  like  to believe  that the impugned circular was issued for  want  of proper  legal advice in this behalf instead of any  ulterior motive suggested by the petitioners/appellants.     Conferment  of  the power together 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 and 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. All persons entrusted  with  any  such power have to bear  in  mind  its necessary  concomitant which alone justified con ferment  of power under the rule of law. This was apparently lost  sight of in the present case while issuing the impugned circular.     Arbitrariness  is  writ large in the  impugned  circular dated  6.2.  1990 issued by the State of Uttar  Pradesh.  It gives  the impression that this action was taken  under  the mistaken  belief of applicability of "spoils  system"  under our  Constitution  and  the cavalier fashion  in  which  the

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action  has been taken gives it the colour of  treating  the posts of D.G.Cs. as bounty to be distributed by the appoint- ing  authority  at its sweet will. Such a change even  by  a private party is made keeping in view his own interest  when he  finds that the existing lawyer is not suitable  for  the assignment  and.  therefore. without making  the  change  he incurs the risk of some loss. In the case of the State it is the  public interest which should be the prime guiding  con- sideration to judge the suitability of the appointee but  it appears  that  the impugned State action was  taken  in  the present  case  with  only one object in view,  that  is,  to terminate  all  existing appointments  irrespective  of  the subsistance  or expiry of the tenure or suitability  of  the existing incumbents. 659     Viewed in any manner, the impugned circular dated 6.2.90 is arbitrary. It terminates all the appointments of  Govern- ment Counsel in the districts of the State of Uttar  Pradesh by an omnibus order, even though these appointments were all individual.  No  common  reason applicable to  all  of  them justifying  their termination in one stroke on a  reasonable ground has been shown. The submission on behalf of the State of  Uttar  Pradesh  at the hearing that many  of  them  were likely  to be re-appointed is by itself ample proof  of  the fact  that  there was total non-application of mind  to  the individual cases before issuing the general order  terminat- ing  all  the appointments. This was done in  spite  of  the clear  provisions  in the L.R. Manual laying  down  detailed procedure for appointment, termination and renewal of tenure and the requirement to first consider the existing incumbent for  renewal  of his tenure and to take steps  for  a  fresh appointment  in his place only if the existing incumbent  is not  found suitable in comparison to more  suitable  persons available  for  appointment at the time of renewal.  In  the case  of  existing appointees. a decision has  to  be  first reached  about  their  non-suitability  for  renewal  before deciding  to  take steps for making  fresh  appointments  to replace them. None of these steps were taken and no material has  been produced to show that any existing  incumbent  was found  unsuitable  for the office  on  objective  assessment before  the decision to replace all by fresh appointees  was taken. The prescribed procedure laid down in the L.R. Manual which  has  to regulate exercise of this power  was  totally ignored.  In  short, nothing worthwhile has  been  shown  on behalf  of the State of U.P. to support the impugned  action as reasonable and non-arbitrary. The impugned circular must, therefore, perish on the ground of arbitrariness which is an available ground for judicial review in such a situation.     In  view of the above conclusion, all the  existing  ap- pointees to the posts of Government Counsel in the districts throughout  the  State  of U.P., by  whatever  name  called, governed by the impugned circular dated 6.2. 1990, who  were in  position at the time of issuance of the  circular,  must continue in office and be dealt with in accordance with  the procedure  laid  down in the L.R. Manual.  Those  Government Counsel, whose term had then expired or was to expire there- after,  would be considered for renewal of their  tenure  in the  manner prescribed and steps for preparation of a  fresh panel to replace them would be taken only if they are  found unsuitable  for  renewal  of their term as a  result  of  an informed  decision  in the manner prescribed. The  power  of termination of any appointment during the subsistence of the term available to the State Government shall also be  avail- able  for  exercise only in the manner  indicated,  wherever considered necessary.

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660 In  short,  the status quo ante as on 28.2. 1990,  on  which date  the impugned circular dated 6.2. 1990 was made  effec- tive, will be restored and be maintained till change in  any appointment  is  found necessary and is made in  the  manner prescribed.  The  fresh appointments, if any,  made  by  the State Government in implementation of the impugned  circular dated 6.2. 1990, being subject to the validity of the circu- lar and the result of these matters, would stand  superseded in  this  manner. The State Government will  implement  this direction within two weeks of the date of this order.     In our view, bringing the State activity in  contractual matters also within the purview of judicial review is inevi- table  and  is  a logical corollary  to  the  stage  already reached in the decisions of this Court so far. Having fortu- nately  reached this point, we should not now turn  back  or take  a turn in a different direction or merely stop  there. In our opinion, two recent decisions in M/s Dwarkadas Marfa- tia  and  Sons,  (supra) and Mahabir  Auto  Stores  &  Ors., (supra) also lead in the same direction without saying so in clear terms. This appears to be also the trend of the recent English  decisions. It is in consonance with our  commitment to openness which implies scrutiny of every State action  to provide  an effective check against arbitrariness and  abuse of power. We would much rather be wrong in saying so  rather than  be wrong in not saying so. Non-arbitrariness, being  a necessary  concomitant of the rule of law, it is  imperative that  all actions of every public functionary,  in  whatever sphere,  must  be  guided by reason and  not  humour,  whim, caprice  or personal predilections of the persons  entrusted with  the  task on behalf of the State and exercise  of  all power  must be for public good instead of being an abuse  of the power.     In  view of the conclusion reached by us and  the  above direction restoring status quo ante as on 28.2.1990, we have not  gone  into individual matters brought before  us.  Some argument  was  advanced from both sides in W.P. No.  706  of 1990  (Km.  Shrilekha Vidyarthi v. State of  U.P.  &  Ors.), wherein  the fact of renewal of petitioner’s tenure is  dis- puted.  It  is unnecessary for us to go into  that  question also since the order, we are making, governs the case of all Government Counsel in the districts throughout the State  of U.P. including that of the petitioner in this writ petition. The  subsequent  rights  of this petitioner  also  would  be governed  in the manner indicated above. If and when such  a situation  arises, it would be open to the parties  to  have the  dispute,  if any, adjudicated wherein the  question  of renewal  of tenure, claimed by the petitioner, can  also  be gone into. 661     Consequently,  these  appeals  and  writ  petitions  are allowed.     The    impugned     circular      G.O.      No. D-284-Seven-Law-ministry  dated  6.2. 1990,  issued  by  the Government of State of U.P., is quashed resulting in  resto- ration  of status quo ante as on 28.2. 1990, the  date  from which this circular was made effective. No costs. R.S.S.                                Petitions and  appeals allowed. 662