TMI Blog1990 (9) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of status quo ante as on 28.2. 1990, the date from which this circular was made effective. - Writ Petition No. 706 of 1990 - - - Dated:- 20-9-1990 - VERMA, JAGDISH SARAN AND SAHAI, R.M., JJ. Dr. L.M. Singhvi, Dr. Y.S. Chitale, R.K. Garg, R.N. Trivedi, Addl. Advocate General for the State of U.P,, Mrs. Swaran Mahajan. Mrs. Geetanjali Mohan, Ms. Anuradha Mahajan. Sunil Gupta, R. Venkataramani, S.M. Garg, Suresh Harkauli. Sushil Harkauli, Sunil Gupta, A.S. Pundir, Suresh Kumar Misra, Mahesh Shrivastava, H.D. Pathak, Vishnu Mathur and Mrs. Shobha Dikshit for the appearing parties JUDGEMENT VERMA, J. This judgment disposes of a bunch of matters comprising of some writ petitions under Article 32 of the Constitution of India and special leave petitions under Article 136 of the Constitution of India, all of which involve for decision certain common questions. The special leave petitions are directed against a common judgment of the Allahabad High Court dismissing some writ petitions in which the same questions were raised. In view of the decision of the High Court rejecting those contentions, the writ petitions were filed in this Court directly for the same purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esently engaged for the work of Civil/Revenue/Criminal (including Anti-Dacoity) and Urban Ceiling may be permitted to work till 28.2.1990 only and for appointments in their place, Administration may send the new panels, after preparing the same in following manner:-- 1. Separate single panal in each of the Civil side, Revenue side, Criminal side (including Anti-Dacoity) and Urban ceiling side fixed for 12 districts, and separate single panel in each of the courts, functioning at District and Tehsil Headquarters, may be prepared. It may be enlisted therein the names of the work zone, number of courts related to it, the number of sanctioned posts for Government Counsel and recommended names of the Counsel in terms of their seniority. 2. It may be clearly mentioned in the panel which counsel belong to Scheduled Caste, Scheduled Tribes, Backward Caste and Minority group. 3. The panels prepared for civil, revenue and urban ceiling side may contain the recommendations of names only three times of the presently sanctioned posts. 4. In the criminal side, five times of the names of the present sanctioned posts may be recommended. 5. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information desired in the enclosed format,`Ka' and `Kha' may be sent to the Administration along with the panel. 4. I have also been directed to state that the appointments made on or after January, 1990, shall not be affected by the above mentioned policy decision and the same shall continue for the prescribed period. 5. I have also been directed to clarify that the panels received prior to release of this Government Order, on the basis of which, no appointments or. renewal has been made or which are still pending, may be understood as cancelled. 6. I have also been directed to request you that the new panels may be prepared in accordance with the above direction on top priority basis, `and the same may be ensured to be sent to the undersigned in a confidential envelope through a special messenger by 25th February, 1990. sd/(A.K. Singh) Joint Legal Remembrancer" By the above-quoted circular letter dated 6.2. 1990, the decision of the State Government to terminate the engagement of all the Government Counsel engaged throughout the State of U.P. for civil/ revenue/criminal (including anti-dacoity) and urban ceiling work on and from 28.2. 1990 and to make appointments in their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e nature of appointments and then proceed on the basis of the minimum status attaching to these appointments to examine whether the ground of arbitrariness is available and vitiates the circular. According to the learned Additional Advocate General of the State of U.P., the relationship of the appointees to these offices of Government Counsel in the districts is purely contractual depending on the terms of the contract and is in the nature of an engagement of a Counsel by a private party who can be changed at any time at the will of the litigant, with there being no right in the Counsel to insist on continuance of the engagement. The learned Additional Advocate General contended that for this reason, the relationship being purely contractual, which cannot be continued against the will of either party, there is no scope for the argument that the State does not have the right to change the Government Counsel at its will. It is common ground that the appointment, termination and renewal of tenure of all Government Counsel in the districts is governed by certain provisions contained in the Legal Remembrancer's Manual, in addition to Section 24 of the Code of Criminal Procedure, 1973, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a private litigant in the event of loss of confidence between them. He contended that there is no element of public employment in such appointments and the provisions in the Legal Remembrancer's Manual and Section 24 of the Code of Criminal Procedure are merely to provide for making a suitable choice. We shall briefly refer to some provisions which admittedly regulate and govern such appointments, termination and renewal of tenure of the appointees. Chapter I of the Legal Remembrancer's Manual, 1975 Ed., contains the interpretations and Para 1.01 says that the L.R. Manual is the authoritative compilation of the Government orders and instructions for the conduct of legal affairs of the State Government. Para 1.06 enumerates the Law Officers of the Government which includes the District Government Counsel (Civil, Revenue, Criminal) along with many others such as Judicial Secretary and Legislative Secretary. it is obvious that all of them including D.G.Cs. are described as holders of some `office' of the State Govt. Chapter VII contains the necessary provisions relating to District Government Counsel. Part A therein deals with appointment and conditions of engagement of the District G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Government for orders. If the report in respect of his work and conduct is satisfactory, he may be furnished with a deed engagement in Form No. 1 for a term not exceeding three years. On his first engagement a copy of Form No. 2 shall be supplied to him and he shall complete and return it the Legal 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the investigating agency. The record, which shall be confidential, shall be maintained by the District Officer. Every adverse entry shall be communicated to the District Government Counsel concerned by the District Officer, with the prior approval of the Government. (2) The character roll of every District Government Counsel shall also be maintained by the Government in Judicial (Legal Advice) Section. For this purpose, the District Officer shall forward to the Legal Remembrancer a copy of all the confidential reports, recorded by him and the District Judge on the work and conduct of the District Government Counsel by the first week of May every year for being incorporated in the character roll, maintained by the Government. (3) The District Officer shall forward a copy of all the confidential reports, referred to in para 7.09(2) in respect of District Government Counsel (Criminal) to Home (Police) Section of Secretariat also for information. (4) Any shortcomings on the part of the District Government Counsel shall at once be brought to the notice of the Legal Remembrancer." These provisions show that the initial appointment is for a period of one year during which the work a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his continuance as a Law Officer in the district. There arc provisions to bar private practice and participation in political activity by D.G.Cs. Apart from clause 3 of para 7.06 to which we shall advert a little later, these provisions clearly indicate that the appointment and engagement of District Government Counsel is not the same as that by a private litigant of his counsel and there is obviously an element of continuity of the appointment unless the appointee is found to be unsuitable either by his own work, conduct or age or in comparison to any more suitable candidate available at the place of appointment. Suitability of the appointee being the prime criterion for any such appointment, it is obvious that appointment of the best amongst those available, is the object sought to be achieved by these provisions, which, even otherwise, should be the paramount consideration in discharge of this governmental function aimed at promoting public interest. All Govt. Counsel are paid remuneration out of the public exchequer and there is a clear public element attaching to the `office' or `post'. The learned Additional Advocate General contended that clause 3 of para 7.06 says tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect for which the power is given would be arbitrary and, therefore, against public policy. Clause 3 of para 7.06 must, therefore, be understood to mean that the appointment of a District Government Counsel is not to be equated with appointment to a post under the Government in the strict sense, which does not necessarily mean that it results in denuding the office of its public character; and that the appointment may be terminated even during currency of the term by only communicating the decision of termination without communicating the reasons which led to the termination. It does not mean that the appointment is at the sweet will of the Government which can be terminated at any time, even without the existence of any cogent reason during the subsistence of the term. The construction, suggested on behalf of the State of U.P. of this provision, if accepted, would amount to conceding arbitrary power of termination to the Government, which by itself is sufficient to reject the contention and thereby save it from any attack to its validity. We may now refer to some provisions of the Code of Criminal Procedure, 1973, relating to Public Prosecutors. Section 24 provides for appointmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubtedly. invest the Public Prosecutors with the attribute of holder of a public office which cannot be whittled down by the assertion that their engagement is purely professional between a client and his lawyer with no public element attaching to it. A brief reference to some decisions of this Court, in which the character of engagement of a Government Counsel was considered. may be made. In Mahadeo v. Shantibhai and Ors., [1969] 2 SCR 422. it was held that a lawyer engaged by the Railway Administration during the continuance of the engagement was holding an `office of profit'. The engagement of the Railway Counsel was similar to that of the Government Counsel in the present case. It was pointed out that by `office' is meant the right and duty to exercise an employment or a position of authority and trust to which certain duties are attached; and such an engagement satisfied that test. Even though the decision was rendered in the context of disqualification under the Election Law by holding an `office of profit', yet it is useful for appreciating the nature of such an engagement or appointment of a counsel by the Government. In Mundrika Prasad Sinha v. State of Bihar, [1980] 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of administrative law. The respondents are a public authority. the appellant holds a public position fortified by statute. The considerations which determine whether he has been validly removed from that position go beyond the mere contract of employment, though no doubt including it. They are. in my opinion. to be tested broadly on arguments of public policy and not to be resolved on narrow verbal distinctions The appellant is entitled to complain if. whether in procedure or in substance, essential requirements, appropriate to his situation in the public service under the respondents, have not been observed and. in case of non-observance. to come to the courts for redress. XXXXX XXXXX XXXXX ..... So. while the courts will necessarily respect the right. for good reasons of public policy. to dismiss without assigned reasons. this should not. in my opinion, prevent them from examining the framework and context of the employment to see whether elementary rights are conferred on him expressly or by necessary implication. and how tar these extend ...... are. therefore. unable to accept the argument of the learned Additional Advocate General that the appointment of District Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose rights flow only from the terms of the contract without anything more? We have no hesitation in saying that the personality of the State, requiring regulation of its conduct in all spheres by requirements of Article 14, does not undergo such a radical change after the making of a contract merely because some contractual rights accrue to the other party in addition. It is not as if the requirements of Article 14 and contractual obligations are alien concepts. which cannot co-exist. The Preamble of the Constitution of India resolves to secure to all its citizens Justice, social. economic and political; and Equality of status and opportunity. Every State action must be aimed at achieving this goal. Part IV of the Constitution contains `Directives Principles of State Policy which are fundamental in the governance of the country and are aimed at securing social and economic freedoms by appropriate State action which is complementary to individual fundamental rights guaranteed in Part III for protection against excesses of State action to realise the vision in the Preamble. This being the philosophy of the Constitution, can it be said that it contemplates exclusion of Article 14--non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the guarantee under Article 14 of non-arbitrariness at the hands of the State in any of its actions. Thus, in a case like the present, if it is shown that the impugned State action is arbitrary and, therefore, violative of Article 14 of the Constitution, there can be no impediment in striking down the impugned act irrespective of the question whether an additional right, contractual or statutory, if any, is also available to the aggrieved persons. The State cannot be attributed the sprit personality of Dr. Jekyll and Mr. Hyde in the contractual field so as to impress on it all the characteristics of the State at the threshold while making a contract requiring it to fulfil the obligation of Article 14 of the Constitution and thereafter permitting it to cast off its garb of State to adorn the new robe of a private body during the subsistence of the contract enabling it to act arbitrarily subject only to the contractual obligations and remedies flowing from it. It is really the nature of its personality as State which is significant and must characterize all its actions, in whatever field, and not the nature of function, contractual or otherwise, which is decisive of the nature o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e current thought in this field. We have no doubt that the scope of judicial review may vary with reference to the type of matter involved, but the fact that the action is reviewable, irrespective of the sphere in which it is exercised, cannot be doubted. A useful treatment of the subject is to be found in (1990) 106 L.Q.R. at pages 277 to 292 in an article `Judicial Review and Contractual Powers of Public Authorities'. The conclusion drawn in the article on the basis of recent English decisions is that `public law principles designed to protect the citizens should apply because of the public nature of the body, and they may have some role in protecting the public interest'. The trend now is towards judicial re,dew of contractual powers and the other activities of the Government. Reference is made also to the recent decision of the Court of Appeal in Jones v. Swansea City Council, [1990] 1 W.L.R. 54, where the Court's clear inclination to the view that contractual powers should generally be reviewable is indicated, even though the Court of Appeal faltered at the last step and refrained from saying so. It is significant to note that emphasis now is on reviewability of every State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exclude the State actions in contractual matters, after the contract has been made, from the purview of judicial review to test its validity on the anvil of Article 14. It can no longer be doubted at this point of time that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. See Ramana Dayaram Shetty v. The International Airport Authority of India and Ors., [1979] 3 SCR 1014 and Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir Anr., [1980] 3 SCR 1338. In Col. A.S. Sangwan v. Union of India and Ors., [1980] Supp. SCC 559, while the discretion to change the policy in exercise of the executive power, when not trammelled by the statute or rule, was held to be wide, it was emphasised as imperative and implicit in Article 14 of the Constitution that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this tou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xt that the exercise of power to terminate the contractual tenancy was examined. All the same, without going into the question whether the obligation of the instrumentality to act in pursuance of public purpose, was a public law purpose or private law purpose, it was held that the obligation to act in pursuance of public purpose was alone sufficient to attract Article 14. It was held that there was an implied obligation in respect of the dealings with the tenants/occupants of the authority to act in public interest/purpose. It was emphasised that every state action has to be for a public purpose and must promote public benefit. Referring to some earlier decisions, it was reiterated that all State actions `whatever their mien' are amenable to constitutional limitations, the alternative being to permit them `to flourish as an imperium in imperio'. It was pointed out that `governmental policy would be invalid as lacking in public interest, unreasonable or contrary to the professed standards', if it suffers from this vice. It was stated that every State action must be reasonable and in public interest and an infraction of that duty is amenable to judicial review. The extent of permissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of Article 14 to prove the assertion. However, where no plausible reason or principle is indicated nor is it discernible and the impugned State action, therefore, appears to be ex facie arbitrary, the initial burden to prove the arbitrariness is discharged shifting onus on the State to justify its action as fair and reasonable. If the State is unable to produce material to justify its action as fair and reasonable, the burden on the person alleging arbitrariness must be held to be discharged. The scope of judicial review is limited as indicated in Dwarkadas Marfatia's case (supra) to oversee the State action for the purpose of satisfying that it is not vitiated by the vice of arbitrariness and no more. The wisdom of the policy or the lack of it or the desirability of a better alternative is not within the permissible scope of judicial review in such cases. it is not for the courts to recast the policy or to substitute it with another which is considered to be more appropriate, once the attack on the ground of arbitrariness is successfully repelled by showing that the act which was done, was fair and reasonable in the facts and circumstances of the case. As indicated by Diploc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that be you ever so high, the laws are above you'. This is what men in power must remember, always. Almost a quarter century back, this Court in S.G. Jaisinghani v. Union of India and Ors., [1967] 2 SCR 703, at p. 7 18-19, indicated the test of arbitrariness and the pitfalls to be avoided in all State actions to prevent that vice, in a passage as under: "In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a prima facie case of arbitrarineSs is made out, the State is unable to show that the decision is an informed action which is reasonable, the State action must perish as arbitrary. In the present case. the initial burden on the petitioners/appellants has been discharged by showing that there is no discernible principle for the impugned action at the district level throughout the State of U.P. since there is nothing in the circular to indicate that such a sweeping action for all districts throughout the State was necessary which made it reasonable to change all Government Counsel in the districts throughout the State, even those whose tenure in office had not expired. Such a drastic action could be justified only on the basis of some extraordinary ground equally applicable to all Government Counsel in the districts throughout the State which is reasonable. No such reason appears in the circular. The impugned circular itself does not indicate the compelling reason, if any, for the drastic step of replacing all the Government Counsel in every branch at the district level throughout the State of U.P., irrespective of the fact whether the tenure of the incumbent had expired or not. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es were to be continued by giving them fresh appointments. the action of first terminating their appointment and then giving them fresh appointment is. to say the least, Uninformed by reason and does not even fail within the scope of the disclosed reason `to streamline the conduct of government cases and effective prosecution thereof'. It is obvious that at least in respect of all such appointees who are to be continued by giving them fresh appointments, the act of terminating their appointment in one stroke, was without application of mind by anyone to the question whether a change was at all needed in their case. It would be too much to assume that every Government Counsel in all the districts of the State of U.P. was required to be replaced in order to streamline the conduct of government cases and indeed. that is not even the case of the State which itself says that many of them were to be re-appointed. Non-application of mind to individual cases before issuing a general circular terminating all such appointments throughout the State of U.P. is itself eloquent of the arbitrariness writ large on the face of the circular. It is obvious that issuance of the impugned circular was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the State it is the public interest which should be the prime guiding consideration to judge the suitability of the appointee but it appears that the impugned State action was taken in the present case with only one object in view, that is, to terminate all existing appointments irrespective of the subsistance or expiry of the tenure or suitability of the existing incumbents. Viewed in any manner, the impugned circular dated 6.2.90 is arbitrary. It terminates all the appointments of Government Counsel in the districts of the State of Uttar Pradesh by an omnibus order, even though these appointments were all individual. No common reason applicable to all of them justifying their termination in one stroke on a reasonable ground has been shown. The submission on behalf of the State of Uttar Pradesh at the hearing that many of them were likely to be re-appointed is by itself ample proof of the fact that there was total non-application of mind to the individual cases before issuing the general order terminating all the appointments. This was done in spite of the clear provisions in the L.R. Manual laying down detailed procedure for appointment, termination and renewal of tenur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular dated 6.2. 1990, being subject to the validity of the circular and the result of these matters, would stand superseded in this manner. The State Government will implement this direction within two weeks of the date of this order. In our view, bringing the State activity in contractual matters also within the purview of judicial review is inevitable and is a logical corollary to the stage already reached in the decisions of this Court so far. Having fortunately reached this point, we should not now turn back or take a turn in a different direction or merely stop there. In our opinion, two recent decisions in M/s Dwarkadas Marfatia and Sons, (supra) and Mahabir Auto Stores Ors., (supra) also lead in the same direction without saying so in clear terms. This appears to be also the trend of the recent English decisions. It is in consonance with our commitment to openness which implies scrutiny of every State action to provide an effective check against arbitrariness and abuse of power. We would much rather be wrong in saying so rather than be wrong in not saying so. Non-arbitrariness, being a necessary concomitant of the rule of law, it is imperative that all actions of every pub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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