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CASE NO.: Appeal (civil)  963-64 of 2000

PETITIONER: State of U.P. and Anr.

RESPONDENT: Johri Mal        

DATE OF JUDGMENT: 21/04/2004

BENCH: CJI, BRIJESH KUMAR & S.B. SINHA.

JUDGMENT: J U D G M E N T

W I T H

CIVIL  APPEAL  NOS. 967, 968, 970,  976-77, 975, 972, 973, 969, 974,  971, 965, 966 OF 2000 & CIVIL  APPEAL NO. 6549 OF 1999

S.B. SINHA, J :

INTRODUCTION:

       A short but interesting question as regard  interpretation of Section 24 of the Code of Criminal  Procedure and the relevant provisions of Legal  Remembrancer’s Manual relating to appointment and renewal of  term of the District Government Counsel is in question in  this batch of appeals which arise out of various judgments  and orders passed by the Allahabad High Court in C.M.W.P.  Nos.34064, 19513, 34074, 26613, 40945, 41178, 5665, 41180,  5667 of 1998, 9809 of 1992, 9203 of 1998, 3100, 3102 of 1999  and 6754 of 1998.    

FACTUAL BACKDROP:         The State of Uttar Pradesh appoints District Government  Counsel(DGC) for civil, criminal and revenue courts in terms  of the Legal Remembrancer Manual.   

       Appointment of Public Prosecutor is governed by the  Code of Criminal Procedure, 1973. The State of Uttar  Pradesh, however, amended Section 24 of the Code of Criminal  Procedure in terms whereof the requirements to consult the  High Court for appointment of Public Prosecutors for the  High Court as contained in sub-section (1) of Section 24 as  also sub-sections (4),(5) and (6)thereof were deleted.   Renewal of terms of the District Government Counsel, are,  however, governed by Legal Remembrancer Manual.

       The first respondent herein was appointed as District  Government Counsel (DGC) (Criminal) at Meerut on or about  7.01.1983.  The said post is deemed to be that of Public  Prosecutor within the meaning of Section 24 of the Code of

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Criminal Procedure.  His term was renewed by an order dated  12.03.1996.  He was again appointed in the same capacity by  an order dated 17.09.1997 for a period of one year.  Before  expiry of the said period, the respondent applied for  renewal of his tenure.  Allegedly, the District Judge and  the District Magistrate did not recommend therefor.  The  State Government decided not to renew the term of the  respondent as DGC (Criminal) and by an order dated 18.9.1998  he was relieved from the charge of the said post.  By a  notification dated 17.09.1998, the vacancy was advertised  whereafter the respondent filed a writ petition before the  Allahabad High Court inter alia praying for quashing the  said order dated 18.09.1998.  In the said writ petition, the  contention of the respondent was that as the District  Magistrate as also the District Judge had recommended for  renewal of his tenure as DGC (Criminal) having found his  conduct and work satisfactory, the renewal ought to have  been granted as a matter of course.  

Despite opportunities granted in that behalf, the  appellants, however, did not file any return.   

By reason of judgment dated 11.12.1998, a Division  Bench of the Allhabad High Court allowed the said writ  application holding:

"In the present case the District Judge  has recommended in favour of the  petitioner and no good or cogent reason  has been assigned for rejecting the  recommendation of the District Judge.   Hence we direct the petitioner’s term as  DGC (Criminal) to be renewed forthwith  by the State Government."

       The learned Judges further opined:

"The Supreme Court has observed in  Special Reference No. 1 of 1998 that the  Chief Justice of India means not the  Chief Justice of India alone but in  consultation with his four senior most  colleagues.  No doubt this judgment was  given in the context of appointments of  Judges in the Supreme Court and High  Courts, but in our opinion the spirit of  the judgment is applicable to the  present case also since the intention  was to keep the administration of  justice away from political  considerations.  Hence in our opinion  the District Judge should not make the  recommendation alone but in consultation  with the two senior most Judicial  Officers in the District Court and also  the CJM in the case of recommendations  for appointments in the Criminal side,  and the senior most Civil Judge for  appointments on the Civil side, and also  the District Magistrate.  In other words  the recommendation shall be by a  collegium headed by the District Judge  and consisting of the above mentioned  five members (consisting of four

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judicial officers and the District  Magistrate).  If two members disapprove  the name no recommendation will be made.   No name will be recommended if the  District Judge disapproves.  This, in  our opinion, will be in accordance with  the norms laid down in the L.R. Manual.   Such a recommendation will ordinarily be  treated as binding on the Government  unless for some strong, cogent reasons  to be recorded in writing if the  Government disagrees.  We again make it  clear that the recommendation must be  made purely on merit and competence  ignoring caste, creed, religion or  political affiliation."

       Contending that the said judgment contains an error of  record as the case of the first respondent had not been  recommended by the District Judge or the District Magistrate  concerned, an application for recalling of the judgment was  filed by the appellant herein but the same was disposed of  directing that the question regarding renewal of the  respondent’s term as DGC (Criminal) shall be considered  afresh by the collegium headed by the District Judge  constituted in the said judgment and the State Government  shall act on the recommendations thereof.

SUBMISSIONS:

       Mr. Ashok Kumar Srivastava, learned counsel appearing  on behalf of the appellant would urge that the High Court  proceeded on a wrong premise that the recommendations for  renewal of terms of D.G.C. (Crl.) had been made by the  District Magistrate in favour of the first respondent.  Our  attention in this behalf has been drawn to the opinion of  the District Judge dated 11th September, 1998 as also the  letter of the District Magistrate, Meerut addressed to the  Principal Secretary, Justice and Legal Remembrancer,  Government of Uttar Pradesh, Lucknow dated 12.9.1998.

       The learned counsel would submit that as the  appointment of public prosecutor is governed by the  provisions of the Code of Criminal Procedure and renewal  thereof by the Uttar Pradesh Legal Remembrancer, the High  Court committed a manifest error in directing constitution  of a collegium headed by a member of Judiciary.   

       Mr. Srivastava would argue that having regard to the  fact that professional engagement of a lawyer cannot be  equated with appointment on a civil post as there exists a  relationship of client and the lawyer between the State and  the public prosecutor, the High Court was not correct in  issuing the impugned directions.  Reliance in this behalf  has been placed on Harpal Singh Chauhan and Others Vs. State  of U.P.[(1993) 3 SCC 552], State of U.P. and Others Vs. U.P.  State Law Officers Association and Others [(1994) 2 SCC 204]  and State of U.P. Vs. Ramesh Chandra Sharma and  Others[(1995) 6 SCC 527].

       Mr. Ranjit Kumar, learned senior counsel appearing on  behalf of the respondent, on the other hand, would submit

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that the High Court felt  the need to constitute a collegium  keeping in view of the fact that the action on the part of  the State in appointment and/ or renewal of the DGCs was  found to be arbitrary.   

       The learned counsel would submit that the public  prosecutors look after the prosecution works and, thus, the  nature of office would be a public in nature having regard  to the fact that they discharge public functions.   

Statutory Provisions:

       Sub-Sections (2) to (6) of Section 24 of Code of  Criminal Procedure read thus:

"(2) The Central Government may appoint  one or more Public Prosecutors, for the  purpose of conducting any case or class  of cases in any district, or local area.

(3) For every district, the State Govt.  shall appoint a Public Prosecutor and  may also appoint one or more Additional  Public Prosecutors for the district.

       Provided that the Public Prosecutor  or Additional Public Prosecutor  appointed for one district may be  appointed also to be a Public Prosecutor  or an Additional Public Prosecutor, as  the case may be, for another district.    

(4) The District Magistrate shall, in  consultation with the Sessions Judge,  prepare a panel of names of persons, who  are, in his opinion fit to be appointed  as Public Prosecutor or Additional  public Prosecutors for the district.

(5) No person shall be appointed by the  State Government as the Public  Prosecutor or Additional Public  Prosecutor for the district unless his  name appears in the panel of names  prepared by the District Magistrate  under sub-section (4).

(6) Notwithstanding anything contained  in sub-section (5), where in a State  there exists a regular Cadre of  Prosecuting Officers, the State  Government shall appoint a Public  Prosecutor or an Additional Public  Prosecutor only from among the persons  constituting such Cadre:

Provided that where, in the opinion of  the State Government, no suitable person  is available in such Cadre for such  appointment that Government may appoint  a person as Public Prosecutor or  Additional Public Prosecutor, as the  case may be, from the panel of names  prepared by the District Magistrate  under sub-section (4)."

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       However, the State of U.P. by Act No. 18 of 1991 with  effect from 16.2.1991 amended Sub-Section (1) of Section 24  of the Code of Criminal Procedure in the following terms:

"in sub-section (1), the words "after  consultation with the High Courts"  shall be omitted;"

       By reason of the said Act, Sub-Sections (4), (5) and  (6) of Section 24 have also been omitted.

       Para 7.01 of Legal Remembrancer’s Manual defines the  District Government Counsel to mean legal practitioners  appointed by the State Government to conduct in any court  such Civil, Criminal or revenue cases, as may be assigned to  them either generally, or specially by the Government.  The  legal practitioner appointed to conduct civil, criminal or  revenue cases shall be known as District Government Counsel  (Civil), (Criminal) or (Revenue), as the case may be.

       Para 7.02 of the Manual lays down the power of the  Government to appoint Government Counsel for each district  in the State.  Para 7.03 provides that whenever a post of  any Government Counsel is likely to fall vacant within the  next three months or when a new post is created, the  District Magistrate shall notify the vacancies to the  members of the Bar, the qualification wherefor would be   practice of 10 years in case of District Government Counsel,  7 years in case of Assistant District Government Counsel and  5 years in case of Sub-District Government Counsel.  Clause  (3) of Para 7.03 reads thus:

"(3) The names so received shall be  considered by the District Officer in  consultation with the District Judge.   The District Officer shall give due  weight to the claim of the existing  incumbents [Additional/Assistant  District Government Counsel], if any,  and shall submit confidentially in order  of preference the names of the legal  practitioners for each post to the Legal  Rememberancer giving his own opinion  particularly about his character,  professional conduct and integrity and  the opinion of the District Judge on the  suitability and merits, of each  candidate.  While forwarding his  recommendations to the Legal  Rememberancer the District Officer shall  also send to him the bio data submitted  by other incumbents with such comments  as he and the District Judge may like to  make.  In making the recommendations,  the proficiency of the candidate in  civil or criminal or revenue law, as the  case may be, as well as in Hindi shall  particularly be taken into  consideration:

Provided that it will also be open to

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the District Officer to recommend the  name of any person, who may be  considered fit, even though he may not  have formally supplied his bio data for  being considered for appointment.  The  willingness of such a person to accept  the appointment if made shall, however,  be obtained before his name is  recommended."    

       Para 7.04 of the said Manual provides that on receipt  of the recommendations of the District Officer, the Legal  Remembrancer may make further enquiry and submit the  recommendations as also for orders of the State Government.   The decision of the State Government would be final.  Para  7.05 prohibits canvassing by or on the part of a candidate  which would entail disqualification.

       Paras 7.06, 7.07 and 7.08 read thus:

"7.06. Appointment and renewal-(1) The  legal practioner 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 District Officer after  consulting the District Judge shall  submit a report on his work and conduct  to the Legal Remembrancer together with  the statement of work done in Form no.9.   Should his work or conduct be found to  be unsatisfactory 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 of 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 to  the Legal Remembrancer for record.

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

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 disqualification to hold the post.

Note: The term political activity  includes membership of any political  party or local body as also press

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reporting work.

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 recommendations of  the District Officer.

(2) Where recommendation for the  extension of the term of a District  Government Counsel is made for a  specified period only, the reasons  therefor 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 Distrit Judge shall give an  estimate of the quality of the  Counsel’s work from the Judicial  stand point, keeping in view the  different aspects of a lawyer’s  capacity as it is manifested  before him in conducting State  cases, and specially his  professional conduct;

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

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

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

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

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Counsel."      

                A supplementary provision has been made in Chapter XXI  of the said Manual for appointment and renewal of the post  of public prosecutors.  It inter alia contains the  guidelines and clarifies that the appointment of DGC  (Criminal), the change of designation of the public  prosecutors could not effect the basic nature of their  professional engagement.  It further provides that such  professional engagement is terminated on either side without  notice and without assigning any reason.  It is stated that  the appointment of public prosecutor and Addl. Prosecutor  both for the High Court and District shall be made in  accordance with Section 24 of the new Code.  Para 21.04  provides for constitution of a panel of five years against  each vacancy.  It mandates that the State Government shall  appoint an Additional Public Prosecutor out of the names  appeared in the panel.  Paras 21.07 and 21.08 of the said  Manual read as under: "21.07. The appointment of Public  Prosecutor or Additional Public  Prosecutor shall be made for the period  of three years, but the State Government  can terminate such appointment at any  time without notice and without  assigning any reason. The State  Government may extend the period of such  appointment from time to time and such  extension of such term shall not be  treated as new appointment.

21.08. The District Magistrate shall  after consultation with the Sessions  Judge submit a confidential report in  respect of the Public Prosecutor and  Additional Public Prosecutors giving  details about the percentage of success  of cases conducted by them and the  general reputation which they enjoy.   Where the percentage of success is low  the reasons given by the Public  Prosecutor or Additional Public  Prosecutor for the same should also be  commented on.  After every three years  he shall make a special assessment of  each such Public Prosecutor or  Additional Public Prosecutor and  recommend whether the person concerned  should be granted extension for a  further term of three years or for a  shorter term only."

       The provisions of the Code of Criminal Procedure which  are statutory in nature govern the field.  The State of  Uttar Pradesh, however, for reasons best known to it amended  Sub-Section (1) of Section 24 of the Code of Criminal  Procedure as a result whereof, the State is not required to  consult the High Court before appointing a Public Prosecutor  for the High Court.  Similarly, Sub-Sections (4), (5) and  (6) of Section 24 have also been deleted purported to be on  the ground that similar provisions exist in the Legal  Remembrancer Manual.  The Legal Rememberancer Manual is  merely a compilation of executive orders and is not a ’law’

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within the meaning of Article 13 of the Constitution of  India.    

JUDICIAL REVIEW:

       The power of judicial review is now well-defined in a  series of decisions of this Court.  It is trite that the  court will have no jurisdiction to entertain a writ  application in a matter governed by contract qua contract  (assuming such professional engagement to be one), as  therein public law element would not be involved. (See Life  Insurance Corporation Vs. Escorts Ltd. and Ors.  [AIR 1986  SC 1370], F.C.I. and Ors. Vs. Jagannath Dutta and Ors., [AIR  1993 SC 1494], State of Gujarat and Ors. Vs. Meghji Pethraj  Shah Charitable Trust and Ors., [(1994) 3 SCC 552],  Assistant Excise Commissioner and Ors. Vs. Issac Peter and  Ors., (1994) 4 SCC 104], National Highway Authority of India  Vs. M/s. Ganga Enterprises & Anr. 2003 (7) SCALE 171)

       In any event, the modern trend also points to  judicial restraint in administration action as has been  held in Tata Cellular Vs. Union of India [(1994) 6 SCC  651]. (See also Monarch Infrastructure (P) Ltd. Vs.  Commissioner, Ulhasnagar Municipal Corporation and Others  [(2000) 5 SCC 287] and W.B. State Electricity Board Vs.  Patel Engineering Co. Ltd. and Others [(2001) 2 SCC 451)]  and L.I.C. and Anr. vs. Consumer Education and Research  Centre and Ors., [AIR 1995 SC 1811].           The legal right of an individual may be founded upon a  contract or a statute or an instrument having the force of  law.  For a public law remedy enforceable under Article 226  of the Constitution, the actions of the authority need to  fall in the realm of public law -be it a legislative act or  the State, an executive act of the State or an  instrumentality or a person or authority imbued with public  law element.  The question is required to be determined in  each case having regard to the nature of and extent of  authority vested in the State.  However, it may not be  possible to generalize the nature of the action which would  come either under public law remedy or private law field nor  is it desirable to give exhaustive list of such actions.

       In Council of Civil Services Unions Vs. Minister for  the Civil Service [(1985) AC 374] while extending the scope  of judicial review the House of Lords decided that judicial  review should not be available if the particular decision  under challenge was not justiciable.  However, in granting  relief the Court shall take into consideration the factors  like national security issue.  In Constitution Reform in the  UK by Dawn Oliver, it is stated at page 210:

"In the CCSU case the House of Lords  decided that judicial review should not  available if the particular decision  under challenge was not justiciable.  In  effect they respected the political  Constitution and deferred to government  in some sensitive areas.  In this case  the Government was alleging that for  them to have consulted the unions before  before the decision was taken would have  provoked industrial action at GCHQ,  which would in turn have been damaging  to national security.  In the view of

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the House of Lords this made an  otherwise reviewable decision not  suitable for judicial review - not  justiciable.  Other decisions taken  under the royal prerogative, which the  court indicated would be non- justiciable, included treaty making and  foreign affairs.  Despite the outcome of  the CCSU that the prerogative is in  principle reviewable and that were it  not for the national security issue the  government should have consulted the  unions before imposing these changes was  a major step forward in the  judicialization of government action,  including the actual conduct of  government, and a step away from the  political Constitution."

       However, we may notice that judicial review was held to  be available when justiciability of foreign relations came  to be considered in R. (Abbasi) Vs. Secretary of State for  the Foreign and Commonwealth Office and Secretary of State  for the Home Department [2002] EWCA Civ., 6 November 2002  stating:

"Although the statutory context in which  Adan was decided was highly material,  the passage from Lord Cross’ speech in  Cattermole supports the view that,  albeit that caution must be exercised by  this Court when faced with an allegation  that a foreign state is in breach of its  international obligations, this Court  does not need the statutory context in  order to be free to express a view in  relation to what it conceives to be a  clear breach of its international  obligations, this Court does not need  the statutory context in order to be  free to express a view in relation to  what it conceives to be a clear breach  of international law, particularly in  the context of human rights."

                In Council of Civil Services Unions Vs. Minister of  Civil Service the power of judicial review was restricted  ordinarily to illegality, irrationality and impropriety  stating:

"If the power has been exercised on a  non-consideration or non-application of  mind to relevant factors, the exercise  of power will be regarded as manifestly  erroneous.  If a power (whether  legislative or administrative) is  exercised on the basis of facts which do  not exist and which are patently  erroneous, such exercise of power will  stand vitiated."

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The Scope and extent of power of the judicial review of  the High Court contained in Article 226 of the Constitution  of India would vary from case to case, the nature of the  order, the relevant statute as also the other relevant  factors including the nature of power exercised by the  public authorities, namely, whether the power is statutory,  quasi judicial or administrative.  The power of judicial  review is not intended to assume a supervisory role or done  the robes of omnipresent.  The power is not intended either  to review governance under the rule of law nor do the courts  step into the areas exclusively reserved by the suprema lex  to the other organs of the State.  Decisions and actions  which do not have adjudicative disposition may not strictly  fall for consideration before a judicial review court.  The  limited scope of judicial review succinctly put are :

(i)     Courts, while exercising the power of judicial review,  do not sit in appeal over the decisions of  administrative bodies;

(ii)    A petition for a judicial review would lie only on  certain well-defined grounds.

(iii)   An order passed by an administrative authority  exercising discretion vested in it, cannot be  interfered in judicial review unless it is shown that  exercise of discretion itself is perverse or illegal.  

(iv)    A mere wrong decision without anything more is not  enough to attract the power of judicial review; the  supervisory jurisdiction conferred on a Court is  limited to seeing that Tribunal functions within the  limits of its authority and that its decisions do not  occasion miscarriage of justice.  

(v)     The Courts cannot be called upon to undertake the  Government duties and functions.  The Court shall not  ordinarily interfere with a policy decision of the  State.  Social and economic belief of a Judge should  not be invoked as a substitute for the judgment of the  legislative bodies.  (See Ira Munn Vs. State of  Ellinois, 1876 (94) US (Supreme Reports) 113)

In Wade’s Administrative Law, 8th edition at pages  33-35, it is stated:

"Review, Legality and discretion The system of judicial review is  radically different from the system of  appeals.  When hearing an appeal the  court is concerned with the merits of a  decision: is it correct?  When  subjecting some administrative act or  order to judicial review, the court is  concerned with its legality: is it  within the limits of the powers granted?   On an appeal the question is ’right or  wrong?’  On review the question is  ’lawful or unlawful?’

Rights of appeal are always statutory.  

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Judicial review, on the other hand, is  the exercise of the court’s inherent  power to determine whether action is  lawful or not and to award suitable  relief.  For this no statutory authority  is necessary: the court is simply  performing its ordinary functions in  order to enforce the law.  The basis of  judicial review, therefore, is common  law.  This is none the less true because  nearly all cases in administrative law  arise under some Act of Parliament.   Where the Court quashes an order made by  a minister under some Act, it typically  uses its common law power to declare  that the Act did not entitle the  minister to do what he did and that he  was in some way exceeding or abusing his  powers.

Judicial review thus is a fundamental  mechanism for keeping public authorities  within due bounds and for upholding the  rule of law.  Instead of substituting  its own decision for that of some other  body, as happens when on appeal, the  court on review is concerned only with  the question whether the act or order  under attack should be allowed to stand  or not.  If the Home Secretary revokes a  television licence unlawfully, the court  may simply declare that the revocation  is null and void.  Should the case be  one involving breach of duty rather than  excess of power, the question will be  whether the public authority should be  ordered to make good a default.  Refusal  to issue a television licence to someone  entitled to have one would be remedied  by an order of the court requiring the  issue of the licence.  If administrative  action is in excess of power (ultra  vires), the court has only to quash it  or declare it unlawful (these are in  effect the same thing) and then no one  need pay any attention to it.  The  minister or tribunal or other authority  has in law done nothing, and must make a  fresh decision."

It is well-settled that while exercising the power of  judicial review the Court is more concerned with the  decision making process than the merit of the decision  itself.  In doing so, it is often argued by the defender of  an impugned decision that the Court is not competent to  exercise its power when there are serious disputed questions  of facts; when the decision of the Tribunal or the decision  of the fact finding body or the arbitrator is given finality  by the statute which governs a given situation or which, by  nature of the activity the decision maker’s opinion on facts  is final.  But while examining and scrutinizing the decision  making process it becomes inevitable to also appreciate the  facts of a given case as otherwise the decision cannot be

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tested under the grounds of illegality, irrationality or  procedural impropriety.  How far the court of judicial  review can reappreciate the findings of facts depends on the  ground of judicial review.  For example, if a decision is  challenged as irrational, it would be well-nigh impossible  to record a finding whether a decision is rational or  irrational without first evaluating the facts of the case  and coming to a plausible conclusion and then testing the  decision of the authority on the touch-stone of the tests  laid down by the Court with special reference to a given  case.  This position is well settled in Indian  administrative law. Therefore, to a limited extent of  scrutinizing the decision making process, it is always open  to the Court to review the evaluation of facts by the  decision maker.

       In Chief Constable of the North Wales Police Vs. Evans  [1982 (3) All ER 141], the law is stated in the following  terms:

"...The purpose of judicial review is  to ensure that the individual receives  fair treatment, and not to ensure that  the authority, after according fair  treatment, reaches on a matter which it  is authorized or enjoined by law to  decide for itself a conclusion which is  correct in the eyes of the court."

       Prof. Bernard Schwartz in his celebrated book  (Administrative Law, III Edn. Little Brown Company 1991)  dealing with the present status of judicial review in  American context, summarized as under:

"If the scope of review is too broad,  agencies are turned into little more  than media for the transmission of  cases to the Courts.  That would  destroy the values of agencies,  created to secure the benefit of  special knowledge acquired through  continuous administration in the  complicated fields.  At the same time,  Court should not rubber-stamp   agencies; the scope of judicial  enquiry must not be so restricted that  it prevents full enquiry into the  action of legality.  If that question  cannot be properly explored by the  Judge, the right to review becomes  meaningless...in the final analysis,  the scope of review depends on the  individual judges estimate of the  justice of the case."

       Prof. Clive Lewis in his book (Judicial Remedies in  Public Law 1992 Edn. At p. 294-295)

"The Courts now recognise that the  impact on the administration is  relevant in the exercise of their  remedial jurisdiction’...Earlier cases

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took a robust line that the law has to  be observed and the decision  invalidated, what ever the  administrative inconvenience caused.   The Courts now-a-days recognise that  such an approach is not always  appropriate and may not be in the  wider public interest.  The effect on  the administrative process is relevant  to the Court’s remedial discretion may  prove decisive...They may also be  influenced to the extent to which the  illegality arises from the conduct of  the administrative body itself, and  their view of that conduct."                       

       Grahame Aldous and John Alder in "Applications for  Judicial Review, Law and Practice" stated thus:

"There is a general presumption against  ousting the jurisdiction of the courts,  so that statutory provisions which  purport to exclude judicial review are  construed restrictively.  There are,  however, certain areas of governmental  activity, national security being the  paradigm, which the courts regard  themselves as incompetent to  investigate, beyond an initial decision  as to whether the government’s claim is  bona fide.  In this kind of non- justiciable area judicial review is not  entirely excluded, but very limited.  It  has also been said that powers conferred  by the royal prerogative are inherently  unreviewable but since the speeches of  the House of Lords in Council of Civil  Service Unions Vs. Minister for the  Civil Service this is doubtful.  Lords  Diplock, Scaman and Roskili appeared to  agree that there is no general  distinction between powers, based upon  whether their source is statutory or  prerogative but that judicial review can  be limited by the subject matter of a  particular power, in that case national  security.  Many prerogative powers are  in fact concerned with sensitive, non- justiciable areas, for example, foreign  affairs, but some are reviewable in  principle, including where national  security is not involved.  Another non- justiciable power is the Attorney  General’s preprogative to decide whether  to institute legal proceedings on behalf  of the public interest."

       In Wade’s Administrative Law, 8th Edition at pages  551-552, the author states :

"Rights and Remedies: Rights depend  upon remedies.  Legal history is rich in

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examples of rules of law which have been  distilled from the system of remedies,  as the remedies have been extended and  adapted from one class of case to  another.  There is no better example  than habeas corpus.  This remedy, since  the sixteenth century the chief  cornerstone of personal liberty, grew  out of a medieval writ which at first  played an inconspicuous part in the law  of procedure: it was used to secure the  appearance of a party, in particular  where he was in detention by some  inferior court.  It was later invoked to  challenge detention by the king and by  the Council; and finally it became the  standard procedure by which the legality  of any imprisonment could be tested.   The right to personal freedom was almost  a by-product of the procedural rules.

This tendency has both good and bad  effects.  It is good in that the emphasis  falls on the practical methods of  enforcing any right.  Efficient remedies  are of the utmost importance, and the  remedies provided by English  administrative law are notably efficient.   But sometimes the remedy comes to be  looked upon as a thing in itself, divorced  from the legal policy to which it ought to  give expression.  In the past this has led  to gaps and anomalies, and to a confusion  of doctrine to which the courts have  sometimes seemed strangely indifferent."

A writ of or in the nature of mandamus, it is trite, is  ordinarily issued where the petitioner establishes a legal  right in himself and a corresponding legal duty in the  public authorities.   

The Legal Remembrancer Manual clearly states that  appointment of a public prosecutor or a district counsel  would be professional in nature.  It is beyond any cavil and  rightly conceded at the Bar that the holder of an office of  the public prosecutor does not hold a civil post.  By  holding a post of district counsel or the public prosecutor,  neither a status is conferred on the incumbent.

A distinction is to be borne in mind between  appointment of a Public Prosecutor or Additional Public  Prosecutor, on the one hand, and Assistant Public  Prosecutor, on the other.  So far as Assistant Public  prosecutors are concerned, they are employees of the State.   They hold Civil posts.  They are answerable for their  conduct to higher statutory authority.  Their appointment is  governed by the service rules framed by the respective State  Government. (See Samarendra Das, Advocate Vs. The State of  West Bengal and Ors. [JT 2004 (2) SC 413]).

The appointment of Public Prosecutors, on the other  hand, are governed by the Code of Criminal Procedure and/ or  the executive instructions framed by the State governing the  terms of their appointment.  Proviso appended to Article 309

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of the Constitution of India is not applicable in their  case.  Their appointment is a tenure appointment.  Public  Prosecutors, furthermore, retain the character of legal  practitioners for all intent and purport.  They, of course,  discharge public functions and certain statutory powers are  also conferred upon them.  Their duties and functions are  onerous but the same would not mean that their conditions of  appointment are governed by any statute or statutory rule.  

 So long as in appointing a counsel the procedures  laid down under the Code of Criminal Procedure are followed  and a reasonable or fair procedure is adopted, the Court  will normally not interfere with the decision.  The nature  of the office held by a lawyer vis-‘-vis the State being in  the nature of professional engagements, the courts are  normally charry to over-turn any decision unless an  exceptional case is made out.  The question as to whether  the State is satisfied with the performance of its counsel  or not is primarily a matter between it and the counsel.   The Code of Criminal Procedure does not speak of renewal or  extension of tenure.  The extension of tenure of public  prosecutor or the district counsel should not be compared  with the right of renewal under a licence or permit granted  under a statute.  The incumbent has no legal enforceable  right as such.  The action of the State in not renewing the  tenure can be subjected to judicial scrutiny inter alia on  the ground that the same is arbitrary.  The courts normally  would not delve into the records with a view to ascertain as  to what impelled the State not to renew the tenure of a  public prosecutor or a district  counsel.  The jurisdiction  of the courts in a case of this nature would be to invoke  the doctrine of ’Wednesbury Unreasonableness’ as developed  in Associated Picture House vs. Wednesbury Corporation  (1947) 2 All ER 640).                    

       In Om Kumar and Others vs. Union of India [(2001) 2 SCC  386], it was held that where administrative action is  challenged under Article 14 as being discriminatory, equals  are treated unequally or unequals are treated equally, the  question is for the constitutional courts as primary  reviewing courts to consider the correctness of the level of  discrimination applied and whether it is excessive and  whether it has a nexus with the objective intended to be  achieved by the administrator.  For judging the  arbitrariness of the order, the test of unreasonableness may  be applied.  The action of the State, thus, must be judged  with extreme care and circumspection.  It must be borne in  mind that the right of the public prosecutor or the district  counsel do not flow under a statute.  Although,  discretionary powers are not beyond pale of judicial review,  the courts, it is trite, allow the public authorities  sufficient elbow space/play in the joints for a proper  exercise of discretion.   

       It may be true that the Legal Remembrancer Manual  provides for renewal but it contains executive instructions  which even do not meet the requirements of clause (3) of  Article 166 of the Constitution.  Legal Remembrancer Manual  is not a law within the  meaning  of  Article  13  of  the  Constitution of India. [See Union of India vs. Naveen Jindal  & Anr. - JT 2004 (2) SC 1]     

       The State, however, while appointing a counsel must  take into account the following fundamental principles which

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are required to be observed that good and competent lawyers  are required to be appointed for (i) good administration of  justice; (ii) to fulfill its duty to uphold the rule of law;  (iii) its accountability to the public; and (iv) expenditure  from the tax payers’ money.   

       Only when good and competent counsel are appointed by  the State, the public interest would be safeguarded.  The  State while appointing the public prosecutors must bear in  mind that for the purpose of upholding the rule of law, good  administration of justice is imperative which in turn would  have a direct impact on sustenance of democracy.  No  appointment of public prosecutors or district counsel  should, thus, be made either for pursuing a political  purpose or for giving some undue advantage to a section of  people.  Retention of its counsel by the State must be  weighed on the scale of public interest.  The State should  replace an efficient, honest and competent lawyer, inter  alia, when it is in a position to appoint a more competent  lawyer.  In such an event, even a good performance by a  lawyer may not be of much importance.

       However, malice in law can also be a ground for  judicial review.

       The Code of Criminal Procedure does not provide for  renewal or extension of a term.  Evidently, the Legislature  thought it fit to leave such matters at the discretion of  the State.  It is no doubt true that even in the matter of  extension or renewal of the term of Public Prosecutors, the  State is required to act fairly and reasonably.  The State  normally would be bound to follow the principles laid down  in the Legal Remembrancer Manual.   

CORRECTNESS OF THE HIGH COURT JUDGMENT:

       It appears that Shri K.S. Rakhra, District Judge,  Meerut by his letter dated 11th September, 1998 addressed  to the District Magistrate, Meerut although observed that  the work and conduct of the respondent was satisfactory and  he had not received any complaint in regard to his  integrity, but it was stated:

"I, however, agree with your view that  the work of the D.G.C. (Crl.) also  requires effective control over his team  and proper analysis of the result of the  trial and follow up action including  remedial steps to improve the efficiency  of the prosecution as a whole.

       Your letter suggests that in your  monthly meetings you have found that  Shri Johri Mal does not exercise  effective control over the Additional  D.G.C. (Crl.) and Asstt. D.G.C. (Crl.)  and that he has not been following the  instructions given in your monthly  meetings with regard to serious criminal  matters.

       You have also found him failing to  furnish complete relevant information in  the meetings and that he does not have

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proper coordination with the S.P.O.  office and that it is giving rise to  administrative problems.

       The work of D.G.C. (Crl.) also  requires administrative skill and above  average judicial knowledge.

       I have no objection if Shri Johri  Mal is replaced by some better and  experienced person having good  experience of conducting Sessions Trials  and also having sufficient  administrative skill."

       Acting pursuant to or in furtherance of the  aforementioned recommendations of the District Judge, the  District Magistrate in terms of his letter dated 12.9.1998  addressed to the Principal Secretary, Justice and Legal  Remembrancer, Government of Uttar Pradesh, Lucknow stated,  thus:

"It is submitted in aforesaid matter  that Sri Johri Mal, Advocate, was  engaged on the post of District  Government Counsel [Criminal], Meerut  for the term upto 14.9.98 as per the  order No. D 1880 [1] Seven-Judicial  3[42]/90 dated 17.9.97.  After the term  of Sri Johri Mal comes to an end, the  post of District Government Counsel  [Criminal] shall fall vacant w.e.f.  15.9.98.  On analysis of work of Sri  Johri Mal in a year, I felt that it  shall not be proper to extend the period  of Sri Johri Mal as District Government  Counsel [Criminal] in a district like  Meerut.  He has no effective control  over other ADGC for doing ’pairvi’  [taking steps].  Even necessary  particulars are not collected for doing  ’pairvi’.  In order to make prosecutive  more effective it was decided that three  important cases be determined regular  dates be fixed and same be got decided  at the earliest, but such action could  not be done effectively due to lack of  co-ordination with the judicial  officers.  In toto his term as the  District Government Counsel cannot be  held as proper and satisfactory.   District Judge has also consented to  engage other appropriate D.G.C. at the  place of Johri Mal and letter of opinion  of the District Judge is enclosed."

       We may notice that one Shri Narendra Deo Chaubey, Under  Secretary, Law Department, Government of Uttar Pradesh,  Lucknow affirmed an affidavit in support of its application  for recalling of the Order dated 11th December, 1998  wherein it was categorically stated:

"That in para 22 of the writ petition  the petitioner has made a false  statement that on the renewal

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application of the petitioner the  District Judge,Meerut and respondent No.  2 made favourable reports and the  renewal of the petitioner was  recommended."

       The very premise whereupon the High Court has based its  decisions, therefore, was incorrect.  The impugned judgment,  thus, cannot be sustained as it suffers from misdirection in  law.

       A Public Prosecutor is not only required to show his  professional competence but is also required to discharge  certain administrative functions.  The District Officer was  of the opinion that in a district like Meerut the term of  the appointment should not be extended as he has no  effective control over the other ADGs for ’taking steps’.   The approach of the District Officer cannot be said to be  wholly irrational.  As noticed hereinbefore, the District  Judge, Meerut has also agreed thereto.  The action on the  part of the State, therefore, cannot be said to be wholly  without jurisdiction requiring interference by the High  Court in exercise of its power of judicial review.

COLLEGIUM:

       Whether the High Court was right in its direction in  the light of Special Reference No.1 of 1998 that a collegium  should be constituted?    

       This Court in Supreme Court Advocates-on-Record  Associations and Others vs. Union of India [(1993) 4 SCC  441] held that the word ’consultation’ is capable of giving  different meaning in different context.  The word  ’consultation’ occurring in Article 124 of the Constitution  of India was given a particular construction having regard  to the relevant significant context in which the same was  used.  Having regard to the provisions of the Constitution,  the court felt that the meaning of the word ’consultation’  cannot be confined to its lexical definition.   

       In Special Reference No. 1 of 1998, Re: [(1998) 7 SCC  739] this Court stated: "12. The majority view in the Second  Judges case ((1993) 4 SCC 441) is that  in the matter of appointments to the  Supreme Court and the High Courts, the  opinion of the Chief Justice of India  has primacy. The opinion of the Chief  Justice of India is "reflective of the  opinion of the judiciary, which means  that it must necessarily have the  element of plurality in its formation".  It is to be formed "after taking into  account the view of some other Judges  who are traditionally associated with  this function". The opinion of the Chief  Justice of India "so given has primacy  in the matter of all appointments". For  an appointment to be made, it has to be  "in conformity with the final opinion of  the Chief Justice of India formed in the  manner indicated". It must follow that  an opinion formed by the Chief Justice

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of India in any manner other than that  indicated has no primacy in the matter  of appointments to the Supreme Court and  the High Courts and the Government is  not obliged to act thereon."

       Appointment of the District Government Counsel cannot  be equated with the appointments of the High Court and the  Supreme Court Judges.  A distinction must be made between  professional engagement and a holder of high public office.   Various doctrines and the provisions of the Constitution  which impelled this Court to give meaning of ’consultation’  as ’concurrence’ and wherein the Chief Justice of India will  have a primacy, cannot be held to be applicable in the  matter of consultation between the District Magistrate and  the District Judge for the purpose of preparation of a panel  of the District Government Counsel.   

       We would, however, like to lay stress on the fact that  the consultation with the District Judge must be an  effective one.  The District Judge in turn would be well  advised to take his colleagues into confidence so that only  meritorious and competent persons who can maintain the  standard of public office can be found out.

       The High Court failed to consider that the power under  Article 226 of the Constitution of India is not at par with  the constitutional jurisdiction conferred upon this Court  under Article 142 of the Constitution of India.  The High  Court has no jurisdiction to direct formulation of a new  legal principle or a new procedure which would be contrary  to and inconsistent with a statutory provision like Code of  Criminal Procedure.  (See State of Himachal Pradesh Vs. A  Parent of a Student of Medical College, Simla and Others  [(1985) 3 SCC 169] and Asif Hameed and Others Vs. State of  Jammu and Kashmir and Others [1989 Supp (2) SCC 364]).  

       In Guruvayoor Devaswom Managing Committee and Another  Vs. C.K. Rajan and Others [(2003) 7 SCC 546] this Court  held:

"50... (x) The Court would ordinarily not  step out of the known areas of judicial  review.  The High Courts although  may  pass an order for doing complete justice  to the parties, they do not have a power  akin to Article 142 of the Constitution  of India."  

DECISIONS OF THIS COURT:

       This Court in Kumari Shrilekha Vidyarthi and Others vs.  State of U.P. and Others [(1991) 1 SCC 212]      opined that  the appointment made in the post of District Government  Counsel is not contractual in nature.  It was held that the  Government Law Officers including the Public Prosecutors are  holders of public offices.  It was further opined that even  in a case of contract the State cannot act arbitrarily and  such arbitrary action is liable to be set aside as violative  of Article 14 of the Constitution of India.  

       In Kumari Shrilekha Vidyarthi(supra), the Court sought  to draw a distinction between the powers of public

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authorities vis-‘-vis the private authorities referring to  Wade’s Administrative Law, 6th Edition, page 401 to the  following effect and stating:

"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 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."

       We have our own reservations about the aforementioned  principles of law, but for the purpose of this case, it is  not necessary to advert thereto.  

       The Article by Sue Arrow Smith on Judicial Review and  Contractual Powers of authorities published in (1990) 106  Law Quarterly Review, Pages 277-292 which has been referred  to in Sreelekha Vidyarthi (supra) took into consideration  several areas of English Law relating to (a) Licensing of  market traders, (b) Dismissal of public servants, (c) Public  body’s powers as landlord and (d) Judicial review of  government procurement.  The learned author, inter alia,  observed that the possibility of review of the exercise of  contractual rights in the said area which have been  recognized by Canadian courts should also be adopted by the  English Courts.  The learned author observes:

"In other words, they should accept that  these powers are reviewable as a matter  of principle but that review may be  negated or limited by specific policy  factors, rather than continue searching  for some "public law" element to the  decision as a justification for applying  public law doctrines to the case before  them.  Support for this approach is  found in the judgments of the Court of  Appeal in Brown, Kelly and Emmett, and  also, implicitly, in the recent cases on  review of procurement; and it is a pity  that the Court of Appeal did not take  the opportunity presented recently in  Jones Vs. Swansea City Council to  endorse such an approach, since this  clearly commended itself to the Court."

       The said Article is although thought provoking, we are  bound by the decisions of this Court and a distinction  between a public law element and private law element  although may be thin, has to be kept in view and taken into  consideration while entertaining a writ application.

       In Mukul Dalal and Others Vs. Union of India and Others  [(1988) 3 SCC 144], this Court held that office of the  Public Prosecutor is a public one and nobody should be

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appointed as a special public prosecutor at the instance of  a complainant stating:

"10... To leave the private complainant  to pay to the Special Public Prosecutor  would indeed not be appropriate. We  would make it clear that we do not  support the conclusion of the High Court  that as a rule whenever there is request  of appointment of a Special Public  Prosecutor or an Assistant Public  Prosecutor, the same should be accepted.  The Remembrancer of Legal Affairs should  scrutinise every request, keeping a  prescribed guideline in view and decide  in which cases such request should be  accepted, keeping the facts of such case  in view. Ordinarily the special Public  Prosecutor should be paid out of the  State funds even when he appears in  support of a private complainant but  there may be some special case where the  Special Public Prosecutor’s remuneration  may be collected from the private  source. In such cases the fees should  either be deposited in advance or paid  to a prescribed State agency from where  the Special Public Prosecutor could  collect the same. In view of these  conclusions and our disagreeing with the  view of the High Court, the appeals  shall stand allowed. Rule 22 of the  Maharashtra Rules, referred to above, in  our view is bad and the State Government  should properly modify the same keeping  our conclusions in view. The  Remembrancer of legal Affairs of the  Maharashtra Government will now decide  as to whether in the three cases  referred to here, the services of a  Special Public Prosecutor, a Public  Prosecutor or an Assistant Public  Prosecutor should be provided and in  case he comes to the conclusion that  such provision should be made, he should  decide as to whether the State  administration should pay for such  Public Prosecutor or the private  complainant should bear the same. There  would be no order as to costs.

       In Mundrika Prasad Singh Vs. State of Bihar [(1979) 4  SCC 701] this Court held that a Government Pleader holds a  public office but he is more than an advocate for litigant.   This Court observed:

"14. It is heartening to notice that  the Bihar Government appoints these  lawyers after consultation with the  District Judge. It is in the best  interest of the State that it should  engage competent lawyers without hunting  for political partisans regardless of  capability. Public offices - and  Government Pleadership is one - shall

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not succumb to Tammany Hall or subtler  spoils system, if purity in public  office is a desideratum. After all, the  State is expected to fight and win its  cases and sheer patronage is misuse of  power. One effective method of achieving  this object is to act on the advice of  the District Judge regarding the choice  of Government Pleaders. When there were  several thousand cases in the Patna  courts and hundreds of cases before a  plurality of tribunals, it was but right  that government did not sacrifice the  speedy conduct of cases by not  appointing a number of pleaders on its  behalf, for the sake of the lucrative  practice of a single Government Pleader.  It is inconceivable how he would have  discharged his duties to the court and  to his client if this crowd of land  acquisition cases were posted in several  courts more or less at the same time.  Adjournment to suit advocates’  convenience becomes a bane when it is  used only for augmentation of counsel’s  income, resisting democratisation and  distributive justice within the  profession. These principles make poor  appeal to those who count, which is a  pity."

       This Court lamented: "17. We dismiss the special leave  petition but with a sad tag, which is  the message of this martyrdom.  Professions shall not be concealed  conspiracies with ’effete, aristocratic,  protective coloration’, which at the  same time enables one to make a  considerable sum of money without  sullying his hands with a "job" or  "trade". The remarks of Tabachnik, in  ’Professions For the People’, about  English professions of the eighteenth  century smell fresh :  One could carry on commerce by sleight  of hand while donning the vestments of  professional altruism. To boot, one  could also work without appearing to  derive income directly from it. As  Reader explains :  "The whole subject of payment . . .  seems to have caused professional men  acute embarrassment, making them take  refuge in elaborate concealment,  fiction, and artifice. The root of the  matter appears to lie in the feeling  that it was not fitting for one  gentleman to pay another for services  rendered, particularly if the money  passed directly. Hence, the device of  paying a barrister’s fee to the  attorney, not to the barrister himself.  Hence, also the convention that in many  professional dealings the matter of the

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fee was never openly talked about, which  could be very convenient, since it  precluded the client or patient from  arguing about whatever sum his advisor  might eventually indicate as a fitting  honorarium." (1966 p. 37)  The established professions - the law,  medicine, and the clergy - held (or  continued to hold) estate-like positions  :  "The three ’liberal professions’ of the  eighteenth century were the nucleus  about which the professional class of  the nineteenth century was to form. We  have seen that they were united by the  bond of classical education : that their  broad and ill-defined functions covered  much that later would crystallize out  into new, specialised, occupations :  that each, ultimately, derived much of  its standing with the established order  in the State." (1966, p. 23)  18. The time has come to examine the  quality of the product or service,  control the price, floor to ceiling,  enforce commitment to the people who are  the third world clients, and practice  internal distributive justice oriented  on basic social justice so that the  profession may flourish without wholly  hitching the calling to the star of  material assessment immunised by law  from the liabilities of other  occupations. We do not suggest that  lawyering in India needs a National  Commission right now as in England and  elsewhere, nor do we subscribe to the  U.S. situation on which the President  and the Chief Justice have pronounced.  We quote :  We are over-lawyered . . . . Lawyers of  great influence and prestige led the  fight against civil rights and economic  justice . . . . They have fought  innovations even in their own profession  . . . . Lawyers as a profession have  resisted both social change and economic  reform.  (President Carter, May, 1978)  We may well be on our way to a society  overrun by hordes of lawyers, hungry as  locusts, and brigades of justices in  numbers, never before contemplated.  (U.S. Chief Justice Burger)  19. Law Reform includes Lawyer Reform,  an issue which the petitioner has  unwittingly laid bare. After all, as  Prof. Connel states :  Criticism of relatively conservative  institutions in times of social  questioning is hardly a new phenomenon.  (Australian Law Journal, Vol. 51, p.  351)"

In State of U.P. vs. Ramesh Chandra Sharma and Others

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(1995) 6 SCC 527], Verma, CJ speaking for the Bench opined : "In view of the clear provision in  clause (3) of para 7.06 that the  "appointment of any legal practitioner  as a District Government Counsel is only  professional engagement", it is  difficult to appreciate the submission  for which sustenance is sought from the  provisions contained in the same manual.  The appointment being for a fixed term  and requiring express renewal in the  manner provided in the Manual, there is  no basis to contend that it is not a  professional engagement of a legal  practitioner but appointment to post in  government service which continues till  attaining the age of superannuation. In  the earlier decisions of this Court  including Shrilekha Vidyarthi, the  appointment of District Government  Counsel under the Manual has been  understood only as a professional  engagement of a legal practitioner. This  contention is, therefore, rejected.  

Another Bench of this Court in Harpal Singh Chauhan and  Others etc. vs. State of U.P. [(1993) 3 SCC 552] upon a  detailed discussion of the relevant provisions of the Legal  Remembrancer Manual as also sub-sections (4),(5) and (6) of  the Code of Criminal Procedure opined :

"16. As already mentioned above, Section  24 of the Code does not speak about the  extension or renewal of the term of the  Public Prosecutor or Additional Public  Prosecutor. But after the expiry of the  term of the appointment of persons  concerned, it requires the same  statutory exercise, in which either new  persons are appointed or those who have  been working as Public Prosecutor or  Additional Public Prosecutor, are again  appointed by the State Government, for a  fresh term. The procedure prescribed in  the Manual - to the extent it is not in  conflict with the provisions of Section  24 - shall be deemed to be supplementing  the statutory provisions. But merely  because there is a provision for  extension or renewal of the term, the  same cannot be claimed as a matter of  right."  17. It is true that none of the  appellants can claim, as a matter of  right, that their terms should have been  extended or that they should be  appointed against the existing  vacancies, but, certainly, they can make  a grievance that either they have not  received the fair treatment by the  appointing authority or that the  procedure prescribed in the Code and in  the Manual aforesaid, have not been  followed. While exercising the power of  judicial review even in respect of

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appointment of members of the legal  profession as District Government  Counsel, the Court can examine whether  there was any infirmity in the "decision  making process". Of course, while doing  so, the Court cannot substitute its own  judgment over the final decision taken  in respect of selection of persons for  those posts."  

The Court emphasized that the members of the legal  profession are required to maintain high standard of legal  ethics and dignity of profession and further they are not  supposed to solicit work or seek mandamus from courts in  matters of professional engagements.

Despite the same to a limited extent in some cases the  orders of non-renewal of the term of the District Government  Counsel were interfered with on the ground that the District  Magistrate had not performed his duty as enjoined by law.

In relation to appointment of the standing counsels for  the High Court, this Court, however, in State of U.P. and  Others etc. vs. U.P. State Law Officers Association and  Others etc. [(1994) 2 SCC 204] while distinguishing  Shrilekha Vidyarthi (supra), observed that legal profession  is essentially a service oriented profession.  Noticing the  changing scenario as also growth of litigation, this Court  emphasized the obligation on the part of the Government or  the public body to engage the most competent lawyer for  conducting their affairs stating that relationship between  the lawyer and his client is one of the trust and  confidence.  The client engages a lawyer for personal  reasons and would be at liberty to leave him also for the  same reasons.  It was observed :

"18.The mode of appointment of lawyers  for the public bodies, therefore, has to  be in conformity with the obligation  cast on them to select the most  meritorious. An open invitation to the  lawyers to compete for the posts is by  far the best mode of such selection. But  sometimes the best may not compete or a  competent candidate may not be available  from among the competitors. In such  circumstances, the public bodies may  resort to other methods such as inviting  and appointing the best available,  although he may not have applied for the  post. Whatever the method adopted, it  must be shown that the search for the  meritorious was undertaken and the  appointments were made only on the basis  of the merit and not for any other  consideration."

NATURE OF OFFICE:

The District Government counsel appointed for  conducting civil as also criminal cases hold offices of  great importance.  They are not only officers of the court  but also the representative of the State.  The court reposes  a great deal of confidence in them.  Their opinion in a

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matter carries great weight.  They are supposed to render  independent, fearless and non-partisan views before the  court irrespective of the result of litigation which may  ensue.   

The Public Prosecutors have greater responsibility.   They are required to perform statutory duties independently  having regard to various provisions contained in the Code of  Criminal Procedure and in particular Section 320 thereof.  

       The public prosecutors and the Government counsel play  an important role in administration of justice. Efforts are  required to be made to improve the management of prosecution  in order to increase the certainty of conviction and  punishment for most serious offenders and repeaters.  The  prosecutors should not be over-burdened with too many cases  of widely varying degree of seriousness with too few  assistants and inadequate financial resources.  The  prosecutors are required to play a significant role in the  administration of justice by prosecuting only those who  should be prosecuted and releasing or directing the use of  non-punitive methods of treatment of those whose cases would  best be processed.

The District Government Counsel represent the State.   They, thus, represent the interest of general public before  a court of law. The Public prosecutors while presenting the  prosecution case have a duty to see that innocent persons  may not be convicted as well as an accused guilty of  commission of crime does not go unpunished.  Maintenance of  law and order in the society and, thus, to some extent  maintenance of rule of law which is the basic fibre for  upholding the rule of democracy lies in their hands.  The  Government counsel, thus, must have character, competence,  sufficient experience as also standing at the Bar.  The need  for employing meritorious and competent persons to keep the  standard of the high offices cannot be minimized.  The  holders of the post have a public duty to perform.  Public  element is, thus, involved therein.   

In the matter of engagement of a District Government  Counsel, however, a concept of public office does not come  into play. However, it is true that in the matter of  Counsel, the choice is that of the Government and none can  claim a right to be appointed.  That must necessarily be so  because it is a position of great trust and confidence.  The  provision of Article 14, however, will be attracted to a  limited extent as the functionaries named in the Code of  Criminal Procedure are public functionaries.  They also have  a public duty to perform.  If the State fails to discharge  its public duty or act in defiance, deviation and departure  of the principles of law, the court may interfere.  The  court may also interfere when the legal policy laid down by  the Government for the purpose of such appointments is  departed from or mandatory provisions of law are not  complied with.  Judicial review can also be resorted to, if  a holder of a public office is sought to be removed for  reason de’hors the statute.

The appointment in such a post must not be political  one.  The Manual states that a political activity by the  District Government Counsel shall be a disqualification to  hold the post.   

       We cannot but express our anguish over the fact that in

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certain cases recommendations are made by the District  Magistrate having regard to the political affinity of the  lawyers to the party in power.  Those who do not have such  political affinity although competent are not appointed.   Legal Remembrancer’s Manual clearly forbids appointment of  such a lawyer and/or if appointed, removal from his office.   The District Judge and the District Magistrate, therefore,  are duty bound to see that before any recommendation is not  made, or any political affinity.  They must also bear in  mind that the Manual postulates that any lawyer who is  guilty of approaching the authorities would not be entitled  to be considered for such appointment.

The State, therefore, is not expected to rescind the  appointments with the change in the Government.  The  existing panel of the District Government Counsel may not be  disturbed and a fresh panel come into being, only because a  new party has taken over change of the Government.

SUBMISSIONS OF BIO-DATA:

       During hearing of the matter, a question arose as to  whether submission of bio data pursuant to issuance of a   notice therefor by the District Magistrate or the District  Judge would amount to soliciting briefs within the meaning  of Rule 36 of the Bar Council of India Rules or not.   

The question came up for consideration before a Full  Bench of the Andhra Pradesh High Court in B. Rajeswar Reddy  and others vs. K. Narasimhachari and others [2001 (6) ALT  104].  The court noticed :

"15. It may not always be possible for  the District and Sessions Judge to have  enough time to know all the advocates  who are fit to be appointed as Public  Prosecutors.  He, therefore, may be  entitled to consult his colleagues  particularly when Additional Public  Prosecutors are required to be appointed  in their Courts also.

16. Before such recommendations are made  the District and Sessions Judge and his  colleagues, appear to have called for  applications for making the things more  transparent.  It is true the post of the  Public Prosecutor occupies a high  position in the scheme of criminal  justice delivery system.  His honesty,  impartiality, firmness and other  qualities will have to be taken into  consideration."                  

       Referring to the judgment of this Court in Harpal Singh  Chauhan (supra), the High Court held that filing of such  applications on the part of the advocate would not attract  the vice of Rule 36 as the advocates would not file any  application on their own.  

PROVISO TO PARA 7.03(3):         

       We may also notice that according to Mr. Ranjit Kumar,  learned senior counsel, the proviso appended to clause (3)  of Para 7.03 is being misused.  

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       The proviso evidently was inserted with a noble  purpose.  Such a provision was evidently made having regard  to the fact that an advocate having a deep sense of self- respect may not file any application for his appointment as  a District Government Counsel despite calling for  applications by the District Magistrate in this behalf.  The  District Magistrate in a given situation may have to  persuade very competent persons to take the offer in public  interest as also in the interest of the State.  But recourse  to the said provision cannot be resorted to for general  appointments.  The said proviso must be taken recourse to  only in very very exceptional cases.  Even in relation  thereto, consultation with the District Judge should be held  to be imperative.           

CONSULTATION:

Keeping in mind the aforementioned legal principles the  question which arises for consideration in these appeals is,  the nature and extent of consultation, a Collector is  required to make with the District Judge.   

The age-old tradition on the part of the State in  appointing the District Government Counsel on the basis of  the recommendations of the District Collector in  consultation with the District Judge is based on certain  principles.  Whereas the District Judge is supposed to know  the merit, competence and capability of the concerned  lawyers for discharging their duties; the District  Magistrate is supposed to know their conduct outside the  court vis-‘-vis the victims of offences, public officers,  witnesses etc.  The District Magistrate is also supposed to  know about the conduct of the Government counsel as also  their integrity.  

       We are also pained to see that the Stat of Uttar  Pradesh alone had amended sub-section (1) of Section 24 and  deleted sub-sections (3), (4) and (5) of Section 24 of the  Code of Criminal Procedure.  Evidently, the said legislative  step had been taken to overcome the decision of this Court  in Kumari Shrilekha Vidyarthi (supra).  We do not see any  rationale in the said action.  The learned counsel appearing  for the State, when questioned, submitted that such a step  had been taken having regard to the fact that exhaustive  provisions are laid down in Legal Remembrancer Manual which  is a complete code in itself.  We see no force in the said  submission as a law cannot be substituted by executive  instructions which may be subjected to administrative  vagaries.  The executive instructions can be amended,  altered or withdrawn at the whims and caprice of the  executive for the party in power.  Executive instructions,  it is beyond any cavil, do not carry the same status as of a  statute.   

       The State should bear in mind the dicta of this Court  in Mundrika Prasad Singh (supra) as regard the necessity to  consult the District Judge.  While making appointments of  District Government Counsel, therefore, the State should  give primacy to the opinion of the District Judge.  Such a  course of action would demonstrate fairness and  reasonableness of action and, furthermore, to a large extent  the action of the State would not be dubbed as politically  motivated or otherwise arbitrary.  As noticed hereinbefore,  there also does not exist any rationale behind deletion of

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the provision relating to consultation with the High Court  in the matter of appointment of the Public prosecutors in  the High Court.  The said provision being a salutary one, it  is expected that the State of U.P. either would suitably  amend the same or despite deletion shall consult the High  Court with a view to ensure fairness in action.

CONCLUSION:

       For the aforementioned reasons, we are of the opinion  that the impugned judgment cannot be sustained which is set  aside accordingly.  The appeal is allowed but in the facts  and circumstances of the case, there shall be no order as to  costs.