TMI Blog2004 (4) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned five members (consisting of four 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. SUBMISS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 develope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned 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 wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it should engage competent lawyers without hunting for political partisans regardless of capability. Public offices - and Government Pleadership is one - shall 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 profes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (1995) 6 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of judicial review even in respect of appointment of members of the legal profession as District Government Counsel, the Court can examine whether there was any infirmity in the decision making process . Of course, while doing so, the Court cannot substitute its own judgment over the final decision taken in respect of selection of persons for those posts. 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. Notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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