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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: RAMESH CHANDRA SHARMA & ORS.

DATE OF JUDGMENT16/10/1995

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) VENKATASWAMI K. (J)

CITATION:  1996 AIR  864            1995 SCC  (6) 527  1995 SCALE  (6)1

ACT:

HEADNOTE:

JUDGMENT:                           JUDGEMENT J.S. VERMA. J.:      Leave granted      Respondents Nos.  1, 2  and 3,  namely, Ramesh  Chandra Sharma,  Ashok   Kumar  Sharma  and  Naresh  chandra  sharma respectively, were  appointed Additional District Government Counsel (Criminal)  at Budaun  in the State of Uttar Pradesh on different  dates for  a fixed term mentioned in the order of appointment.  Their term  was renewed similarly from time to time. However, a further renewal was denied to them by an order dated 1.10.1992. This was challenged by them by a writ petition in  the Allahabad  High  Court,  Lucknow  Bench.  A Division Bench  of the  High Court allowed the writ petition of respondents Nos. 1, 2 and 3 and the order dated 1.10.1992 refusing to  renew their  term of  appointment as Additional District Government  Counsel (Criminal) for a further period was quashed.  It is  unnecessary to  refer to  the claim  of respondents Nos.  4 and  5, namely,  Yashpal Singh Yadav and Syed Mohd.  Anas Naqvi,  whose similar  claim in  that  writ petition was  dismissed. Respondents Nos. 4 and 5 are merely proforma respondents  and no  further reference  to them  is necessary.      This appeal  by the  State of  Uttar Pradesh is against the High  Court’s judgment  allowing the  writ  petition  of respondents Nos.  1,  2  and  3.  Learned  counsel  for  the appellant-State of  U.P. has  assailed the  judgment of  the High Court  on the  ground that the refusal to grant renewal of the  tenure as  Additional District Government Counsel of respondents 1, 2 and 3 was not arbitrary as held by the High Court. but  for valid  reasons.  It  was  contended  by  the learned counsel for the appellant that renewal of the tenure could not be claimed as a matter of right under Para 7.08 of the  U.P.   Legal  Remembrancer’s  Manual  (for  short  "the Manual"), on  which  the  claim  of  these  respondents  for renewal of their term is based. In reply learned counsel for

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the  respondents   contended  that  the  appointment  of  an advocate as  a District Government Counsel under chapter VII of  the   Manual  is  an  employment  and  not  professional engagement of  an advocate  and, therefore,  the advocate is entitled to  automatic renewal till he attains the age of 62 years prescribed  in the Manual as the age of superannuation unless his  record and character roll are not upto the mark. The  alternative  submission  of  learned  counsel  for  the respondents is  that the  refusal of  renewal of the term of these respondents,  in the  facts and  circumstances of  the case, was  arbitrary on account of which it was liable to be struck down under Article 14 of the Constitution. Both sides have placed relience on the decision of this Court in Kumari shrilekha Vidyarthi and Others vs. State of U.P. and Others, 1991 (1)  SCC 212.  Before we  consider the question whether the refusal  to grant  renewal was  arbitrary, it  would  be appropriate to  consider the argument of learned counsel for the respondents about the nature of appointment since it was vehemently urged  as the  main argument  of  behalf  of  the respondents.      Shri S.B.  Sanyal, learned counsel for the respondents, to support  the main argument that the appointment to a post in Government  service whereby  the appointee is entitled to automatic renewal  upto the age of superannuation subject to satisfactory confidential  record, relied  on the provisions in the  Manual which  debar the appointee from participating in political  activities  and  provide  for  maintenance  of character roll  in addition  to a  provision in para 7.13 of the superannuation  age. Reference  was also made to Section 24(3) of the Code of Criminal Procedure which in our opinion has no  application to a case of renewal of the appointment. In Harpal  Singh Chauhan  and Others vs. State of U.P., 1993 (3) SCC  552, it  was held  that Section 24 Cr.P.C. does not speak about  the extention  or renewal  of the  term of  the Public Prosecutor and the procedure prescribed in the Manual to the  extent it  is not in conflict with the provisions of Section 24  shall be  deemed  to  supplement  the  statutory provisions. It  was further  held that ‘merely because there is a  provisions for  extension or  renewal of the term, the same cannot  be claimed as a matter of right’. We are unable to appreciate how Section 24 Cr.P.C. is of any assistance to support the  submission when  the examination in the present case is  not of  the validity  of  an  appointment  but  the validity of refusal to grant renewal of the term governed by para 7.08  of the  Manual. Similarly,  the provision in para 7.13  prescribing   the  age  of  superannuation  is  of  no assistance since  it merely  prescribes the  upper age limit above which  no legal  practitioner can  be appointed  as  a District Government  Counsel.  In  short,  para  7.13  is  a restriction on  appointment of  a legal  practitioner  as  a District Government  Counsel if his age exceeds 62 years and it is  not provision  conferring a right on the appointee to continue till he attains the age of 62 years.      The  nature   of  appointment  and  renewal  is  to  be determined with  reference particulary to para 7.06 and para 7.08 for  which purpose the material part of para 7.06 is 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.      xxx               xxx                xxx      (3)  The   appointment  of   any   legal      practitioner as  a  District  Government

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    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."      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  continue till attaining  the age  of superannuation.  In the  earlier decisions  of   this  Court  including  Shrilekha  Vidyarthi (supra), 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.      The High  Court has  granted relief to respondents Nos. 1, 2  and 3  on the ground that the action was arbitrary. It cannot be disputed after the decision in shrilekha Vidyarthi and those  following it.  that the  State action of refusing renewal  can  be  quashed  if  it  is  arbitrary.  The  only question, therefore,  is whether  it is  so as  found by the High Court.  The High  Court has reached the conclusion that the only  reasons disclosed  by  the  State  Government  for refusing to  consider the  case  of  these  respondents  for renewal of  thier term  were non-existent  or extraneous. In substance, the  action was supported by the State Government on the  ground that  there was no recommendation made by the District authorities  for making  the renewal as required by para 7.08.  This is  the only ground on which the action was supported by  the State  Government. However, the High Court found that the report of the District Officer was favourable to these  respondents and  the  District  Judge  had  really recommended renewal  of their  term.  Admittedly,  the  only ground on  which the  State Government sought to support its action is found to be non-existent in the record. This leads to the  inescapable conclusion  that the  action of refusing renewal to  respondents Nos.  1, 2  and  3  by  order  dated 1.10.1992 was  arbitrary and  on a  non-existent ground this view taken by the High Court cannot, therefore, be faulted.      Learned counsel  for the respondents submitted that the respondents are  keen only to vindicate their honour because of the  arbitrary manner  in which they have been treated by the  State   Government  and  they  are  not  interested  in continuing  as   Additional  District   Government   Counsel (Criminal). It  was submitted that the respondents would not seek  the   consequential  relief   of   consideration   for reappointment after  it is  held that the State Government’s action was  arbitrary. For  this reason it is unnecessary to consider the  question of  grant  of  any  relief  to  these respondents. Moreover,  in the  meantime other  person  have been appointed in their place and they have not impleaded as parties. It  would, therefore,  be inappropriate to make any order which  may have  the  potential  of  displacing  these persons without  hearing  them.  The  possibility  of  those persons being  of  superior  merit  to  justify  refusal  of renewal to these respondents now cannot be ruled out in such

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a  situation.   Grant  of   any  further   relief  to  these respondents is, therefore, inappropriate.      Accordingly, we  modify the  High Court’s order and set aside  the   consequential  relief   to   reconsider   these respondents  for  renewal  of  their  tenure  as  Additional District Government Counsel (Criminal). The appeal is partly allowed to this extent.