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TMI Blog2012 (1) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... al to the extent it provides the consultation with the District Judge mandatory for appointment on the post of District Government Counsels along with consequential action. 3.The present writ petitions were part of the bunch of writ petitions whereby, the Circular dated 13.8.2008 has been impugned, the leading one of which is Writ Petition No.7851 (M/B) of 2008: U.P. Shaskiya Adhivakta Kalyan Samiti. Vs. State of U.P., decided by separate judgment and order dated 6.1.2012. Keeping in view the fact that vires of U.P. Amendment (supra), has been impugned in the present writ petitions, it is decided by the present separate judgment. 4.The appointment of District Government Counsels in the State of U.P., has been drawing the attention of this Court as well as Hon'ble Supreme Court from time to time particularly, after the impugned amendment done by the State Government to acquire unfettered discretion and to regulate the appointment of District Government Counsels as well as the standing counsels of the High Court by executive instructions issued from time to time compiled in the name and title of "Legal Remembrancer Manual" (in short the LR manual). After a lot of disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09 to the State Government recommending petitioner's removal though according to petitioner's counsel, the District Judge, Budaun has recommended the petitioner for renewal. The petitioner was removed by the order dated 21.12.2009. The order of removal was challenged by the petitioner in Writ Petition No.54 (M/B) of 2010. A Division Bench of this Court, vide order dated 5.1.2010, directed the petitioner to continue on the post of District Government Counsel (Criminal). According to petitioner's counsel much before the expiry of term in April, 2011 the post of Additional District Government Counsel (Criminal), the District Magistrate, by the order dated 24.12.2010, directed the petitioner to furnish details of work done which was received by the petitioner on 1.1.2011. The petitioner immediately responded and submitted her reply dated 3.1.2011 which was received in the Office of the District Magistrate on 4.1.2011. However, before receipt of reply, the State Government has removed the petitioner on 30.12.2010. 6.The order of removal dated 30.12.2010 was impugned in Writ Petition No.589 (M/B) of 2011. By the interim order dated 7.2.2011, the Division Bench of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic Prosecutor, or where no Public Prosecutor has been appointed appoint any other person, not being an officer of police below [such rank as the State Government may prescribe in this behalf], to be Public Prosecutor for the purpose of [any case]. 493. The Public Prosecutor may appear and plead without any written authority before any Court in which any case of which he has charge is under inquiry, trial or appeal, and if any private person instructs a pleader to prosecute in any Court any person in any such case, the Public Prosecutor shall conduct the prosecution, and the pleader so instructed shall act therein, under his directions. 494. Any public Prosecutor * * * may, with the consent of the Court, in cases tried by jury before the return of the verdict, and in other cases before the judgment is pronounced, withdraw from the prosecution of any person [either generally or in respect of any one or more of the offences for which he is tried]; and, upon such withdrawal-- (a) if it is made before a charge has been framed, the accused shall be discharged [in respect of such offence or offences]; (b) if it is made after a charge has been framed, or when under this Code no charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal Procedure Code, (Act XXV of 1861), which was later on, replaced by Act X of 1872. It was the Criminal Procedure Code of 1882 (Act X of 1882) which gave, for the first time, a uniform law of procedure for the whole of India both in presidency-towns and in the moffisil; and later on, it was supplanted by the Code of Criminal Procedure, 1898 (Act V of 1898). This last mentioned Act had been amended by many amending Acts, the most important being those passed in 1923 and 1955. The extensive amendments of 1955 were made with intent to simplify procedure and speed up trials. The State Government too made a large number of amendments to the Code of 1898. But on the whole, the Code of 1898 remained unchanged for a very long period. 13.While inserting Section 24 in the Code of Criminal Procedure, 1974, at the time of presentation of Bill, Clause (8) deals with the aims and object, which is based on Law Commission Report and is reproduced as under: "Clause 8-- The section is being amended (i) to enable the Central Government and State Government to appoint one or more Additional Public Prosecutors for the High Court; (ii) to enable the Central Government to appoint one or more Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anding 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). (7)A person shall be eligible to be appointed as a public Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years. (8)The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor. (9)For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice, is a pleader, or has rendered (whether before or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment under sub-section (3), or as the case may be, sub-section (8), of section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under sub-section (1) of section 25 shall be subordinate to the Deputy Director of Prosecution. (7)The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify. (8)The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor.]." 15.Section 25-A was inserted by the Code of Criminal Procedure Amendment Act, 2005 (Act No.25 of 2005) S.4 enforced from 23.6.2006 constituting Directorate of Prosecution. Under Section 25A, the Head of Directorate of Prosecution shall be the Director of Prosecution. The Director of Prosecution shall be the person who has been in practice as Advocate for not less than 10 years and his appointment shall be with the concurrence of the Chief Justice of High Court. Thus, reading of Section 25-A reveals that the Directorate o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LR Manual contains the provisions with regard to effective consultation with the District Judge while preparing the panel for the District Government Counsels. According to original provisions, while choosing the Advocate, opinion should be formed keeping in view the reputation, professional conduct, competency, behaviour and conduct of the lawyers. 19.Now, it is no more res integra that LR manual is authoritative compilation of Government orders and instructions for the conduct of legal affairs of the State Government, vide (1991) 1 SCC 212: Km. Shrilekha Vidyarthi and others. Vs. State of U.P.; (1993) 3 SCC 552: Harpal Singh Chauhan. Vs. State of U.P.; (1994( 2 SCC 204: State of U.P. U.P. State Law Officers Association and AIR 2004 SC 3800: State of U.P. Vs. Johri Mal. 20.Para 7.01, 7.02, 7.03, and 7.04 of LR Manual regulate the procedure for appointment of District Government Counsels which provide that it shall be obligatory on the part of the District Magistrate to obtain the opinion of the District Judge. Before sending the panel to State Government, applications should be invited from the lawyers having practice of 10 years in the case of District Government Counsels and 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve provisions are laid down in LR Manual, which is a complete code in itself. To reproduce relevant portion, Para 84, 85, 86, and 87 of Johri Mal's case (supra), as under: "84. 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. 85. 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. 86.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of Allahabad High Court while deciding a case reported in 2003 ALR 302: Virendra Pal Singh Rana and another Vs. State of U.P. and others, had issued mandamus directing the State Government of U.P. to follow the LR Manual in strict sense and make necessary amendments to give primacy to opinion of District Judge over and above the District Magistrate. 26.Hon'ble Supreme Court in the case reported in (1979) 4 SCC 710: Madhukar Prasad Singh Vs. State of Bihar; (1993) 3 SCC 552: Har Pal SinghChauhan. Vs. State of U.P.; (2004)4 SCC 478: State of U.P. Vs. Netrapal Singh; (2011) 5 SCC 305: State of U.P. Vs. Hirendra Pal Singh as well as in the case of Johri Mal (supra), held that it is mandatory to obtain the opinion of District Judge while making appointment on the post of District Government Counsels and in the event of conflict, the opinion of the District Judge shall prevail. 27.Ignoring the consistent view of this Court and Hon'ble Supreme Court and the binding precedents, by the impugned Circular dated 13.8.2008, the age old provisions contained in LR Manual is amended and entire recommendatory power has been conferred on the District Magistrate of the district conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; अतिकृमित करते हुए विधि परामर्शी निर्देशिका के प्रस्तर 7.03, 7.06, 7.08, 7.13, 8.02, 8.03, 8.04, 8.05, 8.06 एवं 8.07 के स्तम्भ--1 में अंकित वर्तमान प्राविधानों के स्थान पर स्तम्भ--2 में अंकित प्राविधान प्रतिस्थापित कहने की सहर्ष स्वीकृति प्रदान करते हí ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... वर्षों तक विधि व्यवसाय किया हो, सहायक जिला सरकारी अभिवक्ता की दशा में 7 वर्षों तक और अधीनस्थ जिला सरकारी अभिवक्ता की दशा में 5 वर्षों तक विधि व्यवसाय किया हो। जिला अधिकारी ऎसे सदस्यों से अपेक्षा करेगा, जो किस&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1;ालय द्वारा यथाविधि सत्यापित ब्यौरा और यह सूचना कि क्या उन्होंने आपराधिक, सिविल और राजस्व सम्बन्धी विधि कार्य किया है। जब कभी किसी जिले में जिला सरकारी अभिवक्ता का पद तीन माह के भीतर रिक्त होने वाला हो या क&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 75;ष पद पर नियुक्ति हेतु अपने नाम पर विचार कराना चारहते हों, कि वे अपने नाम और ऎसे विवरण दें, जैसे आयु, विधिक वर्ग संस्था (बार) में किये गये विधि व्यवसाय की अवधि, हिन्दी में प्राप्त योग्यतायें, पिछले तीन वर्षों में & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 367;ये अपने जिलाधिकारियों के माध्यम से उपरोक्त विवरण भेज सकते हैं, जो उन्हें उस जिले के जिला अधिकारी, को अपनी ऎसी अभ्युक्ति सहित, जो वे उपयुक्त समझें, भेज देंगे, जिसमें नियुक्ति की जानी हो। (2) समीप के जिलों के जिला ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... यदि कोई हो, के दावों पर उचित रूप से विचार करेगा, और गोपनीय रूप से वरीयता के क्रम में प्रत्येक पद के लिये तीन विधि व्यवसायियों के नाम विधि परामर्शी को भेजेगा और इसके साथ ही विशेष रूप से प्रत्येक अभ्यर्थी के चरि& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... दी की प्रवीणता पर विशेष रूप से ध्यान दिया जायेगाः (3) इस प्रकार प्राप्त नामों पर जिला अधिकारी जिला न्यायाधीश से परामर्श करके विचार करेगा। जिला अधिकारी वर्तमान पदधारियों (अतिरिक्त, सहायक जिला सरकारी अभिवक् ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2375; समय अन्य अभ्यर्थियों द्वारा दिये गये विवरण (biodata) तथा अपने और जिला न्यायाधीश द्वारा की गयी ऎसी टीकाओं को भेजेगा, जो वह उचित समझे। सिफारिशें करते समय अभ्यर्थी की यथास्थिति, सिविल, आपराधिक या राजस्व विधि की और ह ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #2381;रतिबन्ध यह है कि जिला अधिकारी को सदेव इस बात की स्वतंत्रता होगी कि वह किसी ऎसे व्यक्ति का नाम की भी सिफारिश करे, जो उपयुक्त समझा जाय और जिसने नियुक्ति के लिये विचार किये जाने के लिये औपचारिक रूप से अपने विषय &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 375;शार्थ की जायेगी। यदि उसके कार्य तथा आचारण की रिपोर्ट संतोषजनक हो तो उसे प्रपत्र संख्या-1 में आबंध का विलेख तीन वर्षों से अनधिक अवधि के लिए दे दिया जायेगा। उसकी प्रथम नियुक्ति के समय उसे प्रपत्र संख्या-2 की एè ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;से प्रपत्र संख्या-1 में आबंध का विलेख तीन वर्षों से अनधिक अवधि के लिए दे दिया जायेगा। उसकी प्रथम नियुक्ति के समय उसे प्रपत्र संख्या-2 की एक प्रति दी जायेगी और यह उसे पूरा करेगा और विधि परामर्शी को अभिलेख हेतु ल ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;िश के साथ जिला न्यायाधीश की राय की एक प्रति भी भेजी जायेगी। जिला सरकारी अभिवक्ता की पदावधि की समाप्ति के कम से कम 3 मास पूर्व जिलाधिकारी, जिला न्यायाधीश से परामर्श करके जिला सरकारी अभिवक्ता के पिछले कार्य आ&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2313;ल्लेख किया जायेगा। (2) यदि जिला सरकारी अभिवक्ता की पदावधि को बढ़ाने की सिफारिश किसी निर्दिष्ट अवधि के लिये की जाये तो जिला अधिकारी द्वारा उसके लिये कारणों का भी उल्लेख किया जायेगा। (3) जिला सरकारी अभिवक्ता क&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2349;िन्न पहलूओं को ध्यान में रखकर न्यायिक दृष्टि से अभिवक्ता के कार्य, जो कि राज्य के मामलों को उसके समक्ष संचालन करते समय दृष्टिगोचर हों, के गुणावगुण का उल्लेख करेगा, और विशेष रूप से उसके व्यावसायिक आचरण का, (2) ज ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #2351;ा जायेगा। (4) यदि विधि परामर्शी, जिला अधिकारी और जिला न्यायाधीश द्वारा सरकारी अभिवक्ता के अच्छे कार्य परिश्रम और सत्यनिष्ठा के सम्बन्ध में दिये गये प्रमाण-पत्र और इस सिफारिश से सहमत हों कि सरकारी अभिवक्ता ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2;िये गये प्रमाण-पत्र और इस सिफारिश से सहमत हों कि सरकारी अभिवक्ता की पदावधि का नवीनीकरण किया जाये तो वह उसकी पदावधि एक बार में ३ वर्ष से अनधिक अवधि तक बढ़ाये जाने के सम्बन्ध में शासन के आदेश प्राप्त करेगा किन& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;धि परामर्शी जिला अधिकारी से पैरा-7.03 में दी हुयी रीति के अनुसार नई सिफारिश भेजने का अनुरोध करेगा। (5) यदि किसी मामले में विधि परामर्शी और सरकारी अभिवक्ता की पदावधि के नवीनीकरण किये जाने के सम्बन्ध में जिला अधि ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 357;क्ता की अनुवर्ती नियुक्ति के प्रत्येक नवीनीकरण की अवधि की समाप्ति पर इस पैरा में विहित प्रक्रिया का पालन किया जायेगा। 7.13 अधिवर्षता की आयु सरकारी अभिवक्ता की अधिवर्षता आयु 60 वर्ष होगी एवं उसकी पदावधि का नव ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; नामिका में सम्मिलित किये जाने के विचारार्थ अपनी सहमति और अपनी योग्यता और विधि व्यवसाय सम्बन्धी विवरण भेजे जाने की अपेक्षा करेगा। इसके बाद वह ऎसे वकीलों के नाम के सम्बन्ध में, जिन्होंने अपने नामों के विचा ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2344;के साथ वह उप पैरा (1) में अभिदिष्ट विषयों के सम्बन्ध में अपनी या जिला न्यायाधीश की ऎसी अभियुक्तियां भी भेजेगा, जिन्हें वे देना चाहें। (3)- सामान्यतया ऎसे अभ्यर्थी ने नाम की नामिका में नियुक्ति के लिए सिफारिश न क ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2310;वेदन पत्र-(1) जिलाधिकारी ऎसे विधि व्यवसाय करने वाले वकीलों में एक सूचना परिचालित कराएगा, जिन्होंने न्यायालय में कम से कम पांच वर्ष तक विधि व्यवसाय किया हो, और उनसे नामिका में सम्मिलित किये जाने के विचारार्थ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51;िक आचरण, सत्यनिष्ठा और उपयुक्तता के सम्बन्ध में विशेषकर अपनी अभ्युक्ति में उल्लेख करेगा। (2)- जिलाधिकारी अन्य सभी आवेदन पत्रों को भी विधि परामर्शी को भेजेगा और उनके साथ वह उप पैरा (1) में अभिदिष्ट विषयों के सम ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2375; में अभ्यर्थी से वचन ले लिया जायेगा कि नामिका में उसकी नियुक्त किये जाने के पूर्व उसे अपने द्वारा धारण किये हुए पद से त्यागपत्र देना होगा। 8.03- श्रम नामिका वकील- यदि फैक्टरीज एक्ट या अन्य श्रमिक विधि के अधीन मा ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 332;िलाधिकारी इस अध्याय मे उल्लिखित प्रक्रिया का पालन करेगा। 8.04-जिलाधिकारी तथा जिला न्यायाधीश की सिफारिशें--(1)-- विधि परामर्शी या उसके विभाग के ऎसे अन्य अधिकारी द्वारा जिसे विधि परामर्शी ने यह कार्य सौंपा हो, जि& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ारी द्वारा जिसे विधि परामर्शी ने यह कार्य सौंपा हो, जिलाधिकारी की सिफारिशों के परीक्षण के पश्चात अपनी स्वयं की सिफारिश सहित कागज पत्रों को लिखित आदेशार्थ प्रस्तुत करेगा। (2)-- विधि परामर्शी या अन्य अधिकारी &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #2361;ै। 8.05- नियुक्ति की अवधि--(1)-- पैरा 8.04 के अधीन नियुक्त प्रत्येक विधि व्यवसायी को शासन द्वारा प्रारम्भ में एक से अनधिक वर्ष की अवधि के लिए नियुक्त किया जायेगा। प्रतिबन्ध यह है कि शासन को सदैव इस बात की स्वतंत्रता हो&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5; बढ़ायी जा सकती हैः- (क)-- नामिका वकील (सिविल) तथा नामिका वकील (आपराधिक) के मामलों मे जिला न्यायाधीश की, तथा (ख) शासन को कोई निर्देश किये बिना नामिका वकील (श्रम) की दशा में सम्भागीय सहायक श्रमायुक्त की, जबकि वह सम्बन्& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #2350;िका वकील के पदावधि के नवीकरण के विषय में यथास्थति, जिला न्यायाधीश या सम्भागीय सहायक श्रमायुक्त के मत से असहमत हों, तो वह यथास्थिति, जिला न्यायाधीश अथवा सम्भागीय श्रमायुक्त की राय और नामिका वकील के कार्य क ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1;ंत्रणाधीन अन्यथा आदेश न दे दें। (2) यिद जिलाधिकारी किसी नामिका वकील (श्रम) पदावधि के नवीकरण के विषय में सम्भागीय सहायक श्रमायुक्त के मत से असहमत हों, तो वह सम्भागीय श्रमायुक्त की राय और नामिका वकील के कार्य कí ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #2375; नियंत्रणाधीन अन्यथा आदेश न दे दें। 8.07--निर्वतन आयु--किसी भी विधि व्यवसायी की नामिका वकील के रूप में नियुक्ति उस समय नहीं की जायेगी, जबकि उसकी आयु 62 वर्षों से अधिक की हो और न ही नामिका वकील को पदावधि 62 वर्ष की आयु क&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 360;ात-न्याय-3-08-86/08, तददिनांक । प्रतिलिपि निम्नलिखित को सूचनार्थ एवं आवश्यक कार्यवाही हेतु प्रेषितः- 1- मा० महाधिवक्ता, उत्तर प्रदेश, इलाहाबाद। 2- शासन के समस्त प्रमुख सचिव/सचिव । 3- समस्त मण्डलायुक्त, उत्तर प्रदेश। 4- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 545: Sube Singh and others. Vs. State of Haryana and others; (2002) 6 SCC 562: Kailash Chand Sharma. Vs. State of Rajasthan and others; (1996) 2 SCC 226: Dr. K.R. Lakshmanan. Vs. State of T.N. and another; (2001) 4 SCC 139: Union of India. Vs. Elphinstone Spinning and Weaving Co. Ltd. and others; AIR 1960; SC 554: Hamdard Dawakhana and another. Vs. Union of India; (1999) 7 SCC 467: Shiv Kumar. Vs. Hukam Chand and another; (2010) 6 SCC 1: Sidhartha Vashisht alias Manu Sharma. Vs. State (NCT of Delhi); and AIR 1979 SC 1871 Mundrika Prasad Sinha. Vs. State of Bihar; AIR 2005 Bombay 431: Mrs. Neelima Sadanand Vartak. Vs. State of Maharashtra; MANU/MH154/2009: Bombay High Court, Writ PetitionNo.4822 of 2009; decided on 15.12.2009, Jayant. Vs. State of Maharashtra and others; 2006 CRI L. J. 702: Vinay Kumar Srivastava. Vs. State of U.P. & others; 2005 CRI LJ 1985: G.K. Bajpayee and others. Vs. State of U.P. and others; 2007 CRI LJ 4421: Badri Vishal Gupta Vs. State of U.P.; (2007) 2 SCC 1 I.R. COELHO (HEAD) BY LRS. Vs. State of T.N.; (2006) 6 SCC 718: Atyant Pichhara Barg Chhatra Sangh and another. Vs. Jharkhand State Vaishya Federation and others; (1983) 1 SCC 177: T. Barai. Vs. Henry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or engage counsels of its choice since the engagement is purely professional. 30.On behalf of the State, learned Senior Counsel has relied upon the cases reported in (1996) 3 SCC 709 State of U.P. and others. Vs. Macdowel Company & others; (1997) 2 SCC 453: State of Bihar & others. Vs. Bihar Distillery Ltd. & others; (2003) 4 SCC 104: Public Service Tribunal Bar Association. Vs. State of U.P. and others; (2004) 1 SCC 712: Dharam Dutta & others. Vs. Union of India and others; (2008) 4 SCC, 720: Government of Andhra Pradesh & others. Vs. P. Laxmi Devi (Smt.); AIR 1957 S.C. 912 SC: State of U.P. Vs. Manhodhan Lal Srivastava; 2011 AIR SCW 3469: Indian Medical Association Vs. Army College of Medical Sciences & others; 2011 AIR SCW 3337: Narmada Bachao Andolan Vs. State of Madhya Pradesh & others and 2011 (6) Supreme 89: Union of India and another. Vs. Arulmozhi Iniarasu & others. II- WHETHER WRIT PETITION IS BARRED BY DELAY AND LACHES ? 31.It has not been disputed at bar that the impugned State amendment has never been challenged. However, while assailing the impugned amendment, Sri Manoj Goyal, learned counsel on behalf of petitioner submits that necessity to challenge the amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to issue prerogative writ, is not hedged with any condition or constraint. Ordinarily, the principle underlying the rule is one who is not vigilant and does not seek interference of Court within reasonable time from the date of accrual of cause of action or alleged violation of constitutional, legal or other right should ordinarily, may not be entitled to invoke Article 226 of the Constitution of India. However, all these depend upon the facts and circumstances of each case and no-hard-and-fast rule can be laid down and no straight jacket formula can be evolved for deciding the question of delay and laches. While reiterating this broader proposition, Hon'ble Supreme Court in a case reported in (2011) 10 SCC 608: Royal Orchid Hotels Limited and another. Vs. G. Jayarama Reddy and others, considered the question with regard to delay and laches. The relevant portion from the judgment (supra), is reproduced as under: "26. In Dehri Rohtas Light Railway Company Limited v. District Board, Bhojpur, this Court set aside the judgment of the Patna High Court whereby the writ petition filed by the appellant against the demand notice issued for levy of cess for the period 1953-54 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches. The decision in Tilokchand case relied on is distinguishable on the facts of the present case. The levy if based on the net profits of the railway undertaking was beyond the authority and the illegal nature of the same has been questioned though belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That being the case, the claim of the appellant cannot be turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on exercised by the High Court to entertain a belated petition under Article 226 of the Constitution of India. Interference in such matters would be warranted only if it is found that the exercise of discretion by the High Court was totally arbitrary or was based on irrelevant consideration. In Smt. Narayani Debi Khaitan v. State of Bihar, Gajendragadkar, C.J. speaking for the Constitution Bench observed: "It is well-settled that under Article 226, the power of the High Court to issue an appropriate writ is discretionary. There can be no doubt that if a citizen moves the High Court under Article 226 and contends that his fundamental rights have been contravened by any executive action, the High Court would naturally like to give relief to him; but even in such a case, if the petitioner has been guilty of laches, and there are other relevant circumstances which indicate that it would be inappropriate for the High Court to exercise its high prerogative jurisdiction in favour of the petitioner, ends of justice may require that the High Court should refuse to issue a writ. There can be little doubt that if it is shown that a party moving the High Court under Article 226 for a wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were vested in the King in the Monarchical system of the government. In democratic polity, three powers have been assigned to three parts of the government, i.e. legislative, executive and judiciary. Under the Constitution of United States of America or under the unwritten Constitution of England, there is strict separation of power. But under the Indian Constitution, the separation of power is not in strict sense. There is overlapping. 37.The word, "sovereignty" is derived from the Latin word "super"(above) means the authority which controls the actions of every individual, member of the community. The power of Government to make itself obeyed is called sovereignty, and the person or persons who have this power are called the sovereign. According to Harold J Laski, sovereignty is the supreme coercive power and it is by possession of sovereignty that the State is distinguished from all other forms of human association (The State in Theory & Practice by Harold J Laski). 38.In Constitutional Law, sovereignty is termed as the supreme Power of Legislation and Governance. However, Aristotle, a great Greek legal philosopher said that in democratic States, peoples a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y seigniors over those places in which they had been only civil magistrates or military officers. By this means there was introduced into the state a new kind of authority, to which was assigned the appellation of "sovereignty." In process of time the feudal system was extended over France and almost all the other nations of Europe, and every kingdom became in fact a large fief. Into England this system was introduced by the Conqueror, and to this era we may probably refer the English maxim that the king or sovereign is the fountain of justice. But in the case of the king the sovereignty had a double operation. While it vested him with jurisdiction over others, it excluded all others from jurisdiction over him. With regard to him there was no superior power, and consequently on feudal principles no right of jurisdiction. "The law", says Sir William Blackstone, "ascribes to the king the attribute of sovereignty. He is sovereign and independent within his own dominions, and owes no kind of subjection to any other potentate upon earth. Hence it is that no suit or action can be brought against the king, even in civil matters, because no court can have jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have failed to check infiltration of persons having criminal record in the legislative bodies. 43.In a celebrated book, "Religion, Caste & Politics in India", Christophe Jaffrelot who is a Research Director at Centre National de la Recherche Scientifique (in short, CNRS), author of several books as Indian society and political system had considered corruption and criminalisation of politics. Learned author noted that corruption has become all-pervasive phenomenon in contemporary India (page 621). He further took note of the fact that the criminalisation of politics started long back in the country including Uttar Pradesh. The criminals or mafias developed direct nexus with the politician of the State and helped them to be elected. Initially, the politicians availed the help of criminals in electoral matters but later on, criminals entered into politics and get themselves elected in the Assemblies. It shall be appropriate to reproduce a portion from the book (supra) with regard to criminalisation of politics in the State of U.P. and other States of the country. To quote :- "The 1996 Legislative Assembly in Uttar Pradesh did not reverse but may have increased the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nals cases against them (The Hindustan Times, 26 October 1998; The Hindu, 23 November 1998)." It shall be unwise to think or infer that the politicians having criminal antecedent do not affect the decision making process, or the governance. Whether in such a situation, in case the argument of the propagators with regard to strict separation of power is accepted, it is easy to understand that the country may see doom's day in due course of time. 44.While considering the anarchy and autocratic rule prevailing in some of the countries of the world because of committed bureaucracy and judiciary and the trouble, pain and agony faced by the peoples of respective country , Bertrand Russell critically expressed his views as under : "Stalin could neither understand nor respect the point of view which led Churchill to allow himself to be peaceably dispossessed as a result of a popular-vote. I am a firm believer in democratic representative government as the best form for those who have the tolerance and self-restraint that is required to make it workable. But its advocates make a mistake if they suppose that it can be at once introduced into countries where the average citiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and judiciary authority shall act in aid of Hon'ble Supreme Court in discharge of its obligations. All matters of inter-state disputes with regard to land and water, are adjudicated by the Tribunal constituted for the purpose. Thus, the Constitution does not envisage strict separation of power. 47.In the case Delhi Law Act, 1912 in Re, AIR 1951 SC 332, a seven Judges Special Bench of Hon'ble Supreme Court, has considered the doctrine of separation of power and ruled that strictly speaking, it has no place in the system of governance in India nor at the present day under her own Constitution or which she had during the British rule. Unlike the American and Australian Constitutions, the Indian Constitution does not expressly vest the different sets of powers in the different organs of the State. Under Art. 53 (1), the executive power is indeed vested in the President, but there is no similar vesting provision regarding the legislative and the judicial powers. Our Constitution, though federal in its structure, is modelled on the British Parliamentary system, the essential feature of which is the responsibility of the executive to the legislature. The President, as the head o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a democratic government to which we are pledged. In a federal system which distributes powers between three co-ordinate branches of government, though not rigidly, disputes regarding the limits of Constitutional power have to be resolved by courts and therefore, as observed by Paton, "the distinction between judicial and other powers may be vital to the maintenance of the Constitution itself". No Constitution can survive without a conscious adherence to its fine checks and balances. The principle of separation of powers is a principle of restraint which "has in it the precept, innate in the prudence of self-preservation that discretion is the better part of valour" 51.In a case reported in AIR 1982 SC 149: S.P. Gupta. Vs. Union of India, Hon'ble Supreme Court held that independence of judiciary is the basic feature of the Constitution. The concept of independence of the judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ may usurp the functions assigned to another. Legislature and executive, the two facets of people's will, have all the powers including that of finance. Judiciary has no power over sword or the purse; nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits and if it is not so that Court must strike down the action. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restrain, the only check on court's own exercise of power is the self-imposed discipline of judicial restrain. While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment over other's jurisdiction. Hon'ble Supreme Court held that there is no strict separation of power under Indian Constitution. Being the protectors of civil liberties of the citizens, the Hon'ble Supreme Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly. In a federal constitution, the distribution of legislative powers between Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of "the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review." If the federal struct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Delhi Law Act 1912 (supra) whereby, the Article 53 (1) has been interpreted canvassing with regard to vetting of executive powers in the President. Whether executive functioning may be discharged by elected representative, is a crucial question which has not been considered in the light of the observation of larger Bench of Hon'ble Supreme Court? 61.In (2011) 1 SCC 252: S.D. Joshi Vs. High Court of Bombay, a Bench of two Judges of Hon'ble Supreme Court has reiterated the settled principle of law that there is no rigid separation of power under the Indian Constitution and ruled that judicial power can be conferred by other authority also. 62.Learned Senior Counsel Sri Raghwendra Singh, vehemently argued that the Court should not interfere with the present controversy. While relying upon the cases of Macdowel Company, Bihar Distillery, Public Service Tribunal Bar Association, Dharam Dutta, Government of Andhra Pradesh (supra), learned counsel would submit, it is prerogative of the State to appoint a counsel of its choice and the Courts are not concerned with it. 63.In the case of Macdowel Company (supra), their lordships of Hon'ble Supreme Court ruled that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petent and in violation of fundamental right contained in Part-III of the Constitution. Article 14 of the Constitution hits every State action when it suffers from the vice of arbitrariness, manifest error of law or exceeding of jurisdiction or irrational. 65.In a case reported in (2011) 4 SCC 36:GVK Industries Limited and another. Vs. Income Tax Officer and another, their lordships of Hon'ble Supreme Court had considered the principle of separation of power in Indian context and held that the power is overlapping. In appropriate case the higher judiciary may pass appropriate order to secure public interest, to quote relevant portion of paras 35 and 36 of the judgment of GVK Industries Limited (supra), as under: "35. Our Constitution charges the various organs of the State with affirmative responsibilities of protecting the interests of, the welfare of and the security of the nation. Legislative powers are granted to enable the accomplishment of the goals of the nation. The powers of judicial review are granted in order to ensure that legislative and executive powers are used within the bounds specified in the Constitution. Consequently, it is imperative that the powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1938: "What can words like `independence' or `sovereignty' mean for a state of only six million?" 115. We must recognize the fact that history is replete with instances of sovereigns who, while exercising authority on behalf of even those people who claimed to be masters of their own realm, contradictorily claimed the authority to exercise suzerain rights over another territory, its people and its resources, inviting ultimately the ruin of large swaths of humanity and also the very people such sovereigns, whether a despot or a representative organ, claimed to represent." 67. It has been consistent view of Hon'ble Supreme Court of India that the Indian Constitution does not envisage for strict separation of power and in appropriate case, the higher judiciary may interfere and correct the error committed by other two wings of the government to secure public interest and there may be overlapping function to secure public good. 68. In view of above, it is evident why the principle of strict separation of power has not been accepted by Hon'ble Supreme Court in Indian context. 69. An industrialist of the country, Azim Premji, who was the part of a grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s this is a major problem. But I suspect that in countries such as Britain, Canada, Australia and New Zealand, the real reason for this loss of faith lies elsewhere. There, a substantial number of influential members of the highly educated, professional, upper-middle class have lost faith in the ability of their fellow citizens to form opinions about important matters of public policy in a sufficiently intelligent, well-informed, dispassionate, impartial and carefully reasoned manner. Even though the upper-middle class dominates the political process in any event, the force of public opinion still makes itself felt through the ballot box, and cannot be ignored by elected politicians no matter how enlightened and progressive they might be. 72.Learned author while considering the judicial encroachment of constitutional right in some of the countries, opined that shifting power to Judges, amounts to return of mixed government in the political process to check the ignorance, prejudice and passion of the mob. Learned author proceeded to observe as under, to quote :- "If I am right, the main attraction of judicial enforcement of constitutional rights in these countries is that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the system of Governance including the criminalisation of politics and huge misappropriation of public fund and stashing away of the public fund to abroad. 76.In a journal, "The American Journal of Comparative Law", while writing an article, Prof. Jiunn-Rong Yeh, College of Law, National Taiwan University, and Associate Prof. Wen-Chen Chang, National Taiwan University, have considered the extensive interference by South Korean ad Taiwan Constitutional Court, to quote:- "South Korea underwent successful democratization in 1987, culminating in an extensively revised Constitution and a new Constitutional Court. In the two decades since, government power has shifted to the opposition and back, swinging among various political parties. Most impressive has been the performance of the South Korean Constitutional Court. In its decisions involving the constitutionality of statutes or government actions, it has ruled against the government about one third of the time. Similarly, Taiwan also began an incremental democratization process in the late 1980s. Since then, the 1947 Constitution, that was originally adopted in mainland China, has been amended seven times. Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late. Learned author Anatol Lieven observed, to quote:- "A visit to the Mohmand Tribal Agency in September 2008 (described further in Chapter 11) summed up for me the attitudes of most ordinary Pakistanis to the official judicial system, and how the Pakistani Taleban have been able to exploit this to their advantage. As Tazmir Khan, a farmer, told me, to the approval of the other local men sitting with him, Taleban justice is better than that of the Pakistani state. If you have any problem, you can go to the Taleban and they will solve it without you having to pay anything --not like the courts and police, who will take your money and do nothing." The author further proceeded to observe as under:- "...Even clearer was the entire local population's absolute loathing for the state judicial system; and this was an attitude which I found among ordinary people across Pakistan. However, it would be wrong to see the Pakistani population simply as innocent victims of a vicious judicial system run from above for the benefit of the elites. Rather, justice in Pakistan is an extension of politics by other means, and everyone with the slightest power to do so tries to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Uttar Pradesh was 7 per cent lower than the national average. This difference had grown to 40 per cent in 2000-1 (Uttar Pradesh Human Development Report 2003). In recent years (2002-3 to 2007-8), the average annual growth rate of NSDP was 5.6 per cent as against the national average of 7.9 per cent, while the growth rate of the per capita SDP was 3.6 per cent compared to the national average of 6.4 per cent." 82.In the field of health also, the State of U.P., is worse than the national average, to quote:- "In terms of health indicators, the state's performance was worse than the national average (Figure 3, 4 and 5). The proportion of women with BMI<18.5, underweight children and the U5MR are higher in the state as compared to the national average. The Scs and Sts are worse off compared to the state average and their community's respective national averages for all the health indicators. Although the state made significant efforts in building healthcare infrastructure, it has failed to keep pace with the increasing demand. The state's performance in providing health infrastructure was lover than the national average. The shortage of medical personnel and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r their respective communities iin terms of access to improved sources of drinking water (Figure 7). In the case of sanitation, the state average is slightly better than the all India average (Figure 8). However, only 16 per cent of SC households have access to toilet facilities vis-a-vis 35 per cent of SC households at the all India level." In such a situation, it is not easy for the citizens to avail justice from the Government. There shall always be disparity in public dealing and peoples may suffer for one or the other cause because of poor governance system." 85.Mahatma Gandhi Ji compared the governance system of European countries and India and expressed his views, to quote from "Mahatma Gandhi Essays & Reflections" by Sarvepalli Radhakrishnan (page 18-19) :- "In my humble opinion the ordinary method of agitating by way of petitions, deputations, and the like is no remedy for moving to repentance a Government so hopelessly indifferent to the welfare of its charge as the Government of India has proved to be. In European countries, condemnation of such grievous wrongs as the Khilafat and the Punjab would have resulted in a bloody revolution by the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal record in the legislative bodies. 89. Coming to second limb of governance, the bureaucracy, where also things are not too good. It is of common knowledge that substantial number of bureaucrats succumb to political pressure and do not tender correct advice to the government resulting in loss of revenue, misappropriation of public fund and abuse of power. Shri Bhaskar Ghose, an I.A.S. Officer who served for 36 years in the cadre has shown his deep concern with regard to falling standards among the bureaucracy. He has written his autobiography in the name and title, "SERVICE OF THE STATE, THE IAS RECONSIDERED. Learned author observed as under : "A number of IAS officers have been charged with, even arrested for, corruption; and many, many more have taken to ways that are not, strictly speaking, illegal but are repellent nonetheless-the ways of nepotism, of intrigue, of lobbying and cultivating the politically powerful to worm their way up the administrative ladder. Krishnan and Somanathan have reported wryly on a 'formulation' to which another officer, K. Ashok Vardhan Shetty, has, according to the two, made a contribution. I cannot resist reproducing it in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing otherwise. 92.Learned author(supra) while in-capsuling his experience suggested to adopt remedial measures to maintain the intellectual integrity of political bosses as well as that of the bureaucracy in the following words : "This is high time that one should give serious thoughts on how to maintain the intellectual integrity of political bosses as well as that of the bureaucracy. It is for the political parties in the interest of the country, not to create a vicious circle by exploiting the bureaucracy in their own interest. Let the bureaucracy work with impartial mind and if anybody amongst them is found corrupt or having a partisan attitude such a bureaucrat must be given punishment. At the same time the members of the Legislative Assembly and Members of the Parliament should not be allowed to interfere in the affairs of transfers and postings and day-to-day administration. Since we have not been able to implement the policies of government in the true sense, nor have we developed a proper work culture, there is an adjustment gap which needs to be filled in a reasonable way." 93. Shri Vinod Rai, Comptroller and Auditor General of India while giving a lecture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .After considering number of instances with regard to evil or persecuted bureaucracy, the reporter(supra) considering the plight of certain honest upright officers observed, to quote :- "It's an evil throughout the country. Ruling parties do post people arbitrarily, without merit. It's done to subjugate the bureaucracy into toeing a certain line,: says TSR Subramanian, former cabinet secretary of India. But, says Subramanian, the bureaucrats should voice their concerns within the bounds of service rules. "Done in that manner, the service rules protect you and provide immense immunity." But others blame bureaucrats themselves for their plight as they have not learnt to say "no" to their political masters. "The message should be loud and clear that reshufflings would not help matters," says a Maharashtra cadre IPS officer, giving the example of a fiercely independent cadre-mate, then Nasik IG B D Mishra, who had to be reinstated because of public pressure after he was shunted out for acting against some local heavyweights." The reporter while considering the plight of honest officers quoted the comments of some bureaucrats and remark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be under his control. In order to ensure that he is not regarded as a part of the Police Department, he should be an independent official directly responsible to the State Government. The departments of the machinery of criminal justice, namely, the Investigation Department and the Prosecuting Department should thus be completely separated from each other." There have also been recommendations by the National Police commission in its 4th Report and also in the 154th Report of the Law Commission (1996) that there should be a prosecution system under the control of an independent Director of Prosecution." 98.The Law Commission recommended for independent prosecuting agency. The Commission was asked by the Central Government to undertake the detail examination of the Code of Criminal Procedure, 1898. Thereafter the Law Commission submitted a very comprehensive report on 19.2.1968 on Section 1 to 176 of the Code. The Commission was again reconstituted in 1968 and undergone detail study of Code of Criminal Procedure. The Commission made a detailed study of the Code, met judges and representative of the various Bar Associations in different parts of the country, received opi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing two sections in place of section 492:-- [1. See paras 18.24 and 18.25 above)] "492. Appointment of Public Prosecutor--(1) For every district the State Government shall appoint a Public Prosecutor. It may also appoint one or more additional Public Prosecutors for the district. (2) A person shall only be eligible to be appointed a Public Prosecutor or Additional Public Prosecutor under sub-section (1) if he has been for not less than seven years an advocate and is recommended by a High Court for appointment.2 [2.(Cf. Article 233 (2) of the Constitution)] (3)The Central Government or the State Government may appoint, for the purpose of any case or class of cases, an advocate of not less than ten years' standing as a Special Public Prosecutor. 492A. Appointment of Assistant Public Prosecutors--(1)The State Government shall appoint I n every district one or more Assistant Public Prosecutors for conducting prosecution in the Courts of Magistrates. (2) No police-officer shall be eligible to be appointed as Assistant Public Prosecutor under sub-section (1). (3)Where no Assistant Public Prosecutor appointed under sub-section (1) is available for the purposes of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into account both the rights of the individual and the necessary effectiveness of the criminal justice system." Prosecutors have duties to the State, to the public, to the Court and to the accused and, therefore, they have to be fair and objective while discharging their duties." 101.The Law Commission (supra) also observed that the Government should ensure that the Public Prosecutors are independent of the executive, to reproduce relevant portion:- "Public Prosecutor must act on his own independent of Executive influence The Government should ensure that public prosecutors are independent of the executive, and are able to perform their professional duties and responsibilities without interference or unjustified exposure to civil, penal or other liability. However, the public prosecutor should account periodically and publicly for his official activities as a whole. Public Prosecutors must be in a position to prosecute without influence or obstruction by the executive or public officials for offences committed by such persons, particularly corruption, misuse of power, violations of human rights etc. Even in regard to withdrawal of prosecutions under section 321 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , advance public interest in punishing the guilty and protecting the innocent." 103. Not only the Law Commission of India but the Law Commission of U.P. has also shown its deep concern to the falling standard of prosecuting branch of State of U.P. The observation made by the Law commission of U.P., shows the mental pain and agony of a judge against arbitrary use of power by the State Government in appointing the District Government Counsels. The Law Commission of U.P. noted that how the Government under the garb of LR manual, works under the political compulsion to appoint the District Government Counsels for political consideration, It shall be appropriate to reproduce the relevant portion of 12th Report of Law Commission of U.P., submitted in December, 2001 as under: "............Reference may also be made to the series of Ordinances, each called the U.P. Government Litigation (Engagement of Counsel) Ordinance. The Ordinances which were promulgated between 10th January, 1991 and 18th May, 1992 were as follows, each succeeding Ordinance replacing the previous one : U.P. Ordinance No. 2 of 1991 ----- do ----- 15 of 1991 ----- do ----- 22 of 1991 ----- do ----- 35 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecember, 2000 (vide Hindi daily Jagaran dated 2.12.2000) a public interest litigation filed in the High Court before a Bench consisting of Hon'ble Justices Raza and Nigam questions the justification for excessive appointments of State counsel. According to the petitioner the number of State counsel at present attached to the Lucknow Behch of the High Court is as follows : (a) Criminal Side : 13 Public Prosecutors (b) Civil side : 61 Standing Counsel and 35 Brief Holders. It is further stated that the Advocate General was not consulted in making these appointments and the appointments were decided upon in a meeting comprising only the Principal Legal Remembrancer and the Chief Standing Counsel. Even sufficient place is not available for seating these State lawyers in the High Court. Nor do they have any adequate staff to assist them. The report further states that according to the counsel for Government it was purely discretionary with the State Government whether to consult the Advocate General in making these appointments or not and that the matter of appointment was wholly in the discretion of the Government and that the writ petition was not maintainable. We are not conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing branch independent. While submitting 197th Report, the Law Commission, of India has taken note of earlier judgment of Hon'ble Supreme Court reported in (1997) 4 SCC 770: Union of India. Vs. Sushil Kumar Modi, whereby, their lordship of Hon'ble Supreme Court held that the prosecutors should be independent of the executive and they should not be subjected to orders of Secretary of the State. The executive cannot be permitted to step into the jurisdiction of prosecuting agency as it is for the prosecuting agency to decide who is to be prosecuted and who is not. Law Commission further taken note of the judgment of Hon'ble Supreme Court reported in AIR 2000 SC 1731: R. Sarala. Vs. T.S. Velu and others, whereby, their lordship ruled that role of Public Prosecutor inside the court and role of investigation outside the court, Public Prosecutor is the officer of the court and cannot be involved in investigation. Law Commission opined that consultation with the District Judge is a must in the matter of preparation of panel of lawyers, to quote, relevant portion: "Law regarding appointment of Public Prosecutor will violate Article 14 if it permits arbitrary appointment w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intments from the Cadre, there must be adequate safeguards precluding arbitrary appointments by the Executive. Any scheme which permits arbitrary appointments without checks will be in violation of Article 14 of the Constitution." 105. Law Commission of India further taken note of judgment of Hon'ble Supreme Court reported in (1995) Supp. 3 SCC 37: S.B. Shahane Vs. State of Maharashtra, whereby, Hon'ble Supreme Court held that Assistant Prosecuting Officers could not be allowed to function under the control of Head of Police Department. Thus, the consistent opinion of Law Commission followed by Judgment of Hon'ble Supreme Court is that the State Government cannot be given unfettered discretion to make appointment on the post of District Government Counsels. 106. In view of above impugned amendment is contrary to the report of Law Commission submit to Government from time to time. V-IMPORTANCE OF LAW COMMISSION REPORT 107. Law Commission Reports have been vehemently relied upon by the learned counsel for the petitioners to support their contention that the State Amendment of 1991 is against the aims and object of the 1973 Act and the report of the Law Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant report. Their Lordships relied upon the earlier judgment reported in AIR 1976 SC 2386 Shanta Singh versus State of Punjab where Hon'ble Supreme Court of India relied upon the Law Commission Reports with regard to Benami transactions. It was in pursuance to the report of the Law Commission that Benami Transactions (Prohibition of Right to Recover Property) Ordinance, 1988 was promulgated. Their Lordships of Hon'ble Supreme Court held that the Report of the Law Commission may be referred to as external aid to construction of the statutory provisions. To quote : "15....................Is it permissible to refer to the Law Commission's Report to ascertain the legislative intent behind the provision ? We are of the view that where a particular enactment or amendment is the result of recommendation of the Law Commission of India, it may be permissible to refer to the relevant report as in this case. What importance can be given to it will depend on the facts and circumstances of each case." "19...............Law Commission's Reports may be referred to as external aid to construction of the provisions........................................." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the superannuation age of the Judges as well as to improve the other facilities available to them including the provision for official residential accommodation. 13. These recommendations were made to improve the system of justice and thereby to improve the content and quality of justice administered by the Courts. The recommendations were made in the year 1958. Over the years the circumstances which impelled the said recommendations have undergone a metamorphosis. Instead of improving, they have deteriorated making it necessary to update and better them to meet the need of the present times. 14. Although the report made the recommendations in question to further the implementation of the Constitutional mandate to make proper justice available to the people, the mandate has been consistently ignored both by the executive and the legislature by neglecting to improve the service conditions. By giving the directions in question, this Court has only called upon the executive and the legislature to implement their imperative duties. The Courts do issue directions to the authorities to perform their obligatory duties whenever there is a failure on their part to discharge them. The powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission to review working of the Constitution in the matter of appointment of Governors while expressing its views. 116. In a case reported in 2009(10) SCC 374, U.P. Cooperative Federation Limited versus Three Circles, Hon'ble Supreme Court has relied upon the 55th Report of the Law Commission, 1973 and held that in a lengthy litigation proceeding, there is no infirmity in awarding interest on costs while awarding damages for wrongful retention of money. 117. In a case reported in (2006)11 SCC 245 Centrotrade Minerals and Metal Inc. versus Hindusatan Copper Limited, Hon'ble Supreme Court relied upon 176th Report of the Law Commission of India while considering the autonomy with regard to arbitration under Arbitration Act. 118. In (2009)6 SCC 99 G. Sekar versus Geetha, Hon'ble Supreme Court relied upon the 174th Report of the Law Commission and the statement of object and reasons while considering the validity of Hindu Succession (Amendment) Act, 2005, meant for removal of discrimination and conferring an absolute right in a female heir to ask for a partition in a dwelling house wholly occupied by a joint family by removing the bar under Section 23 of the Hindul Succes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instructions of the President. 4. This Bill is introduced to replace the aforesaid Ordinance." 121. To keep pace with time, higher judiciary of various democratic countries of the world, are evolving new principles to enforce constitutionalism and rule of law in their respective countries. One of the recent principle of law is not only the Constitution but law or statutory law is also organic body. 122. In the book "Statutory Interpretation" by Benian, it has been dealt with and held that in case legislators do not make amendment in the statutory provisions causing stagnation and making the law redundant and detrimental to public good, then Court has got ample powers to interpret the statute in such a way necessary to meet the requirement of time. The principle has been applied by the Division Bench of this Court (of which one of us Hon'ble Mr. Justice Devi Prasad Singh) was a member) in the case reported in 2007 (4) SCC 380: Vishwanath Chaturvedi (3) Vs. Union of India. 123. Now, according to newspaper report dated 24.11.2011 in Times of India, the political party in power, has legislators in substantial number, involved in serious crime like rape, dacoity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he legislation sought to remove is aimed at. 131. In State of West Bengal versus Union of India AIR 1963 SC 1241, Hon'ble Supreme Court observed that the statement of Objects and Reasons may be used for limited purpose of understanding the background and the antecedent state of affairs leading up to the legislation. 132. Same principle has been reiterated in AIR 1973 SC 913 A.C. 46 Sharma versus Delhi Administration. 133. In AIR 1987 SC 138 Kameswar Singh versus Addl. Dist. Judge, Lucknow, Hon'ble Supreme Court has widened the scope of object and reasons and observed that the court may strive to so interpret the statute as to protect and advance the object and purpose of the enactment. Any narrow or technical interpretation of the provisions would defeat the legislative policy. The courts must therefore, keep the legislative policy in mind in applying the provisions of the Act to the facts of the case. 134. In (1984) 2 SCC 183 R.S. Nayak versus A.R. Antulay, while considering the purpose of Prevention of Corruption Act, 1947 and mode of construing a provision of the Act, their Lordships observed that the purpose of Act is to make more effective provisions for prevention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing, the written word if necessary." 136. Hon'ble Supreme Court in a case reported in AIR 1957 SC 29 State versus Govindan Thampi Bhaskaran Thampi observed that resort to the history of the legislation to construe the meaning of any provisions therein is more often taken exception to than not. At the same time it is common knowledge that when the words of a statute are ambiguous, attempts are not infrequently made to ascertain their true meaning by reference to the state of the law at the time the statute was passed, the mischief sought to be avoided and the stages through which the concerned legislation passed. 137. Allahabad High Court in a case Kunwar Murli Manohar versus State of U.P. AIR 1957 All 159, observed that in the interpretation of a statute, the history of the legislation and the surrounding circumstances which existed at the time and demanded a change of law or the enactment of a new one, can all be taken into consideration. 138. A Full Bench of Patna High Court in a case reported in 1993 CrLJ 3246 on a reference made by Ravinandan Sahai, Sessions Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereby the action of taking over the management of the three cotton Mills, was upheld. High Court declared the acquisition unconstitutional. Their lordships held that legislature in modern State is actuated with some policy to curb some public evils or to effectuate some public benefit. Their lordships relied upon the case of Madras Race Club (supra) and reaffirmed the proposition with regard to supporting the material for object and reason while enacting a statute. It is different thing that in the said case material was found supporting the aims and object, to quote relevant portion of Para 14 as under: "14. The Legislation in a modern State is actuated with some policy to curb some public evils or to effectuate some public benefit. The Legislation is primarily directed to the problems before the legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in future. But from the very nature of things, it is impossible to anticipate fully, the varied situations arising in future in which the application of the legislation in hand may be called for, and, words chosen to communicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be culled out from the aforementioned judgments is that although the Statement of Objects and Reasons contained in the Bill leading to enactment of the particular Act cannot be made the sole basis for construing the provisions contained therein, the same can be referred to for understanding the background, the antecedent state of affairs and the mischief sought to be remedied by the statute. The Statement of Objects and Reasons can also be looked into as an external aid for appreciating the true intent of the legislature and/or the object sought to be achieved by enactment of the particular Act or for judging reasonableness of the classification made by such Act." 54. Thus, in view of the above, the Statement of Objects and Reasons of any enactment spells out the core reason for which the enactment is brought and it can be looked into for appreciating the true intent of the legislature or to find out the object sought to be achieved by enactment of the particular Act or even for judging the reasonableness of the classifications made by such Act." 148. Thus, even in view of the recent judgment in the case of K. Shyam Sunder (supra), the object and reason of the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 152. The Government has failed to discharge its obligation to establish that the consultation with the District Judge causes delay. Merely advancing the argument in the Court by the learned Senior Counsel representing the State, shall not suffice unless some instances are brought on record. Some inquiry should have been held collecting material with regard to delay caused because of the consultation with the District Judge but the same does not seem to be done. Hence the ground with regard to delay, contained in the aims and object, seems to be based on unfounded fact. 153. The other argument of the learned counsel for the State is with regard to choice to engage a counsel. Perhaps this argument is also based on unfounded facts. While amending the Act, the State has not taken note of the observations of Hon'ble Supreme Court in the case of Shrilekha Vidyarthi (supra) whereby, the case of Mundrika Prasad Sinha (supra), has been followed and reiterated. It was incumbent on the State Government while asserting the choice part, shoulw have collected the material and pointed out how and under what circumstances the State has been deprived to engage the counsel of its choice. Unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Government wants unfettered discretion in the matter of appointment of District Government Counsel. How the unfettered discretion shall be sub-serving to constitutional goal, may be noticed from the Apex Court judgment in the case of (2004)4 SCC 158 Zahira Habibulla H. Sheikh and another versus State of Gujarat and others where Hon'ble Supreme Court noted how the prosecuting agency failed in Gujarat to put the culprit to task by prosecuting them in court fairly and vigorously. The dilution of merit in the appointment of District Government Counsels who mainly deals with criminal trial and also important civil matters shall deprive the courts from able assistance and ultimate sufferer shall be public at large eroding the peoples' faith in administration of justice and being paid from public exchequer. The government does not have got unfettered discretion to make appointment on the post of District Government Counsel ignoring the meritorious members of bar. The post of District Government Counsel emanates from Cr.P.C. and U.P. Z.A.& L.R. Act and Code of Civil Procedure. They are statutory in nature. District Government Counsels are paid from public exchequer to secure pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officers in a democratic polity to enable them to discharge their obligation independently without being influenced by the Government or political parties. The L.R. Manual also envisages that the prosecutors should be independent while assisting the court. 166. Hon'ble Supreme Court in the case of Venugopal (supra), has held (in para 31) as under: "31. It may not be out of place to mention that the SLP of the respondent indicates that the term of office of five years of the writ petitioner as Director was not really in dispute. In the Statement of Objects and Reasons of the Act introducing the impugned proviso, it is stated that the same is being introduced with a view to comply with the direction of the High Court in the judgment and order dated 29th of March, 2007. It, however, appears that the Division Bench of the Delhi High Court has determined the question of tenure of the writ petitioner to be five years and there are writs in the nature of Mandamus and Prohibition issued by the Delhi High Court directing the right of the writ petitioner indicated in the respective orders. As in Madan Mohan Pathak's case(para 8), as quoted herein above, in the instant case als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t with regard to employment and discharge of duty. By inserting Section 25-A, Parliament provided that even special counsel shall discharge their obligation under the Directorate of Prosecution. Though, the power of State Government to appoint special counsel has been maintained but he/she shall fall within the administrative control of Director of Prosecution. Thus, in case the special counsel is different class than the District Government Counsel appointed under sub-section (4), (5) and (6) of Section 25 of Code of Criminal Procedure. Hence, so far as the supervisory or statutory control is concerned, by inserting Section 25-A, Parliament removed the difference between the counsel appointed on the recommendation of the District Judge and District Magistrate and a special counsel appointed by the Government straight away in a particular case. Accordingly, in case impugned amendment is sustained, then it shall be in derogation of letter and spirit of Section 25-A of CrPC and shall be repugnant to Central Act in view of proviso to Clause (2) of Article 254 of the Constitution. Both cannot stand together. 171. In AIR 1954 SC 752: Zaverbhai Amaidas. Vs. State of Bombay, their lords ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Parliament to repeal, amend in repugnant State Law even if it has become valid by virtue of Presidential Assent. Their lordships held that even State Law has not been repelled, it becomes void as soon as subsequent law of Parliament making repugnant. For convenience, relevant portion of para 15 is reproduced as under:- "15. ... The proviso to Article 254 (2) empowers the Union Parliament to repeal or amend a repugnant State law even though it has become valid by virtue of the President's assent. Parliament may repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the 'same matter'. Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise where both laws operate in the same field and the two cannot possibly stand together, e.g., where both prescribe punishment for the same offence but the punishment differs in degr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be no dispute that the District Government Counsels are appointed in pursuance of the statutory provisions contained in sub-section (3) of Section 24 of CrPC. The Deputy Director of Prosecution has to work under the Director of Prosecution. 176. By lapse of time and after insertion of Section 25-A of CrPC, the impugned amending Act seems to be repugnant to the letter and spirit of Section 25-A of CrPC. 177. Renewal of petitioner working as Additional District Government Counsel (Criminal) Badaun, was rejected by the State Government by an order dated 22.3.2011 keeping in view the report of District Magistrate. Though there appears variation in the mater of performance but it appears that in the case of petitioner Sadhna Sharma, Additional District & Sessions Judge, Court No. 9, in whose court the petitioner was discharging her duty had also given his opinion stating that the work and conduct of petitioner is not satisfactory, hence she should be removed. 178. Thus, in the case of petitioner, the opinion of both District Judge and District Magistrate seem to be not satisfactory. The Principal Secretary, Law while filing counter affidavit stated that the question with regard to pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel of its choice and for that, no opinion is required from the District Judge or the High Court. Thus, under L.R. Manual also, subject to assigning reason, State is final authority to appoint Government Counsel. Under sub-section (8) of Section 24, State has been given separate additional power to make appoint of a Government Counsel of its choice without seeking any opinion from the District Judge or the High Court. Thus, power conferred on the Government under sub-section (4), (5) and (6) of Section 24 is different power constituting different cadre of Government Counsel than one appointed under sub-section (8) of Section 24. 183. What the Parliament has done by enacting Section 25-A, the independent power conferred on the State Government to appoint Special Counsel, under Section 24 (8) of the CrPC has been diluted to some extent that now, though the Government may appoint Special Counsel but the counsel so appointed, shall discharge his/her obligation under the Directorate of Prosecution constituted under Section 25-A of the Code of Criminal Procedure. The provisions seems to have been made to check abuse of power by the State Government while dealing with the cases pending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . By Bryan A. Garner, Editor-in-Chief, defines the word, 'arbitrary' as under: "arbitrary, adj. (15c) 1. Depending on individual discretion; specif., determined by a judge rather than by fixed rules, procedures, or law. 2. (Of a judicial decision) founded on prejudice or preference rather than on reason or fact. This type of decision is often termed arbitrary and capricious. Cf. CAPRICIOUS." Volume 3B of "Words and Phrases" Permanent Edn., defines the word, 'arbitrary, 'arbitrariness' and 'arbitrary act', has been defined as under: Arbitrary "Ala. Crim.App. 1979 Term "arbitrary," as used in context of a Fourteenth Amendment challenge, means wilful and unreasoning action, without consideration and regard for facts and circumstances presented U.S.C.A. Const. Amend. 14--Hubbard v. State, 382, So.2d 577, affirmed Ex parte Hubbard, 382 So.2d 597, set aside 405 So.2d 695, on remand 405 So.2d 695, appeal after remand 500 So.2d 1204, affirmed 500 So.2d 1231, post-conviction relief denied 584 So.2d 895, certiorari denied 112 S.Cr. 896, 502 U.S. 1041, 116 L. Ed.2d 798, certiorari denied 107 S.Cr. 1591, 480 U.S. 940, 94 L. Ed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 1947. An "arbitrary act' or decision is one that is arrived at through the exercise of will or by caprice, one supported by mere option or discretion and not by a fair or substantial reason.--Bedford Inv. Co. v. Foib, 180 P.2d 361, 79 Cal. App.2d 363." [Pg 542] 188. In view of the aforesaid definition, the impugned amendment seems to be irrational, capricious and is not done in consonance with the settled proposition of law, rules and procedure, or reasons rather than reasons and facts unfounded, hence shall be deemed to be arbitrary. Amendment has been done without adequate determining principle and at pleasure. 189. In Km. Shrilekha Vidyarthi (supra), Hon'ble Supreme Court while defining the word 'arbitrariness', ruled that the meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. 190. In the case re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutional, in case it violates fundamental rights enshrined in Part-III of the Constitution. In case it is declared unconstitutional, then it shall be still born and void, to quote relevant portion as under: "25. In Behram Khurshid Pesikaka v. State of Bombay AIR 1955 SC 123; and Mahendra Lal Jaini v. State of Uttar Pradesh & Ors. AIR 1963 SC 1019, this Court held that in case a statute violates any of the fundamental rights enshrined in Part III of the Constitution of India, such statute remains still-born; void; ineffectual and nugatory, without having legal force and effect in view of the provisions of Article 13(2) of the Constitution. The effect of the declaration of a statute as unconstitutional amounts to as if it has never been in existence. Rights cannot be built up under it; contracts which depend upon it for their consideration are void. The unconstitutional act is not the law. It confers no right and imposes no duties. More so, it does not uphold any protection nor create any office. In legal contemplation it remains not operative as it has never been passed. In case the statute had been declared unconstitutional, the effect being just to ignore or disregard.&qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the law on the issues stands crystallised that in case the Amending Act is struck down by the court for want of legislative competence or is violative of any of the fundamental rights enshrined in Part III of the Constitution, it would be un-enforceable in view of the provision under Article 13(2) of the Constitution and in such circumstances the old Act would revive, but not otherwise. This proposition of law is, however, not applicable so far as subordinate legislation is concerned." 194. In the present case, since we are of the view that the impugned amendment is hit by Article 14 and is unconstitutional, there shall be revival of old one which makes the consultation with District Judge, mandatory. XI- FINDINGS 195. Subject to discussion and finding recorded hereinabove in the preceding paragraphs, the impugned amendment seems to be ultra vires and not sustainable and we sum up the finding as under: (1)There is no strict separation of power under the Indian Constitution. Accordingly, the consultation of the district Judge, as ruled by Hon'ble Supreme Court (supra), seems to not suffer for want of jurisdiction or authority under the principle of "Separation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Km. Shrilekha Vidyarthi (supra) which was necessary in the light of the law laid down by Hon'ble Supreme Court in the case of (2008)5 SCC 1 P. Venugopal v. Union of India. (10) Reliance placed by the Government on the report of an Additional District Sessions Judge ignoring the report of two other Additional District & Sessions Judges seems to be exceeding of jurisdiction. While rejecting the renewal, opinion should have been obtained from the District Judge, and no reliance could have been placed on report of Additional District & Sessions Judge who is incompetent under the L. R. Manual. Rejection of application of renewal suffers from vice of arbitrariness. (11) Impugned Government order amending L. R. Manual suffers from vice of arbitrariness as held while deciding W.P. No.7851 (M/B) of 2008 and connected petitions decided by the judgment and order dated 6.1.2012, requires no fresh adjudication. (12) The entire object and reason of the amending Act is based on unfounded grounds having no nexus with the object sought to be achieved. Hence suffers from unreasonableness and is irrational hence hit by Article 14 of the Constitution of India. XII-ORDER 196. In vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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