TMI Blog2015 (11) TMI 1795X X X X Extracts X X X X X X X X Extracts X X X X ..... minal Procedure and reiterated that the District Counsel stood professionally engaged; that the State Government was free to determine the course of action after being satisfied of their performance, and that the Courts must be circumspect in the exercise of judicial review on matters which fell within the discretion of the State Government, i.e. appointment of their counsel or advocates. This Court reiterated that the District Counsels do not enjoy the statutory rights with respect to the renewals of tenures and the State Government enjoyed the discretionary powers in this respect. The curial performance of the advocates should not be the sole criterion for their reappointment as District Counsel and that the State Government must be free to repose trust and confidence in the persons whom they choose to appoint as their advocates. It is beyond cavil that it is in the interest of the dispensation of criminal justice that competent counsel possessing integrity should alone be appointed, since otherwise, there is a strong possibility of miscarriage of justice. In choosing them, the State will not only have to be satisfied of their forensic competence, but also that they are bereft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Sr. Advs., Saurabh Lavania, Achintya Dvivedi, Adnan Siddiqui, Bhagabati Prasad Padhy, Mohit Chaudhary, Vaishali Mittal, J.K. Sharma, Puja Sharma, Kezho, Satya Mitra, Pradeep Kumar Mathur, P.K. Jain, Saurabh Jain, P.K. Goswami, S.P. Singh Rathore, Uday Prakash Yadav, Mukesh K. Giri, Rana Ranjit Singh, Vivek Kr. Singh, Rashid Saeed, Shuvodeep Roy, J.M. Sharma, Ajit Sharma, Akshat Sharma, Nitin Singh, Rohit Singh, Neeraj Kumar Srivastava, Pawan Kumar Shukla, Pankaj Kumar Singh, Ashutosh Dubey, Mahindra Dubey, Vinod Kumar Tewari, Imtiaz Ahmed, Naghma Imtiaz, Amra Moosavi, Advs. for Equity Lex Associates, Shakil Ahmed Syed, Daanish Ahmed Syed, Uzmi Jameel Hussain, Mohd. Parvez Dabas, Milan Laskar, Anoop Kumar Shrivastava, Bhanu Pratap Singh, Varun Singh and Vipin Kr. Saxena, Advs. JUDGMENT Vikramajit Sen, J. 1. Leave granted. 2. Applications for correcting the cause title and all the applications for impleadment as party Respondent are allowed. 3. In these Appeals, we are concerned with the renewal as also the appointment of District Government Counsel (Civil and Criminal) in the Subordinate Courts across the State of Uttar Pradesh. The State as the Appellant, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strict Government Counsel, Panel lawyers and Sub District Government Counsel ; that the persons appointed in pursuance of old provisions would continue till the completion of the reconsideration process; and, all fresh appointments would be carried out strictly in conformity with U.P. Shaskiya Adhivakta Kalyan Samiti and Sadhna Sharma v. State of U.P. [Writ Petition Misc. Bench No. 7825 of 2011]. 5. Aggrieved by the aforementioned Judgments, the State Government filed Special Leave Petitions No. 4042-4043 of 2012 titled State of U.P. and Ors. v. Sadhna Sharma, during the pendency of which there was a change in the State Government. Immediately thereupon, a prayer was made before this Court for withdrawal of the Special Leave Petitions on the predication that the newly elected State Government had accepted the assailed judgments of the High Court of Allahabad and accordingly intended to implement it in its entirety. In the course of disposing of these SLPs this Court pointedly and poignantly observed that the constitutional validity of Section 24 Code of Criminal Procedure had not been challenged. This Court noted the unanimity in the opinion that the assailed judgments of the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014, which stands impugned before us, the High Court in Ajay Kumar Sharma and Anr. v. State of U.P. issued a Certiorari quashing the Orders declining renewal of the Respondents; a Mandamus directing the State Government to reconsider their candidature. The High Court had also issued a Mandamus directing the Government to set up a Directorate of Prosecution in pursuance of Section 25-A of Code of Criminal Procedure and lastly passed a direction to the District Judges and District Magistrates to ensure that no person having criminal antecedents should be permitted to work as District Government Counsel. 8. The Learned Senior Counsel for Appellant/State, Mr. Kapil Sibal, submits that the impugned order of the High Court of Allahabad seeks to perpetuate an illegality. He relies heavily on the decision of a Three Judge Bench of this Court, namely, State of U.P. v. Johri Mal (2004) 4 SCC 714, to submit that an appointment to the post of a District Counsel is a professional appointment; no status of a public nature is conferred on the incumbent; as also that the LR Manual itself contains merely Executive instructions which do not contain the concomitants of Article 166(3); and therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in State of UP v. Rakesh Kumar Keshri (2011) 5 SCC 341, was because in the former the recommendation was not in favour, and in the latter the incumbent was incompetent. Mr. Lekhi further submits that the State Government cannot rely upon the fact that the appointments were void because, firstly, the appointments were valid at that time and under extant Rules and also because the 'de facto doctrine' comes to their rescue. He has placed reliance upon Dr. A.R. Sircar v. State of UP (1993) Supp 2 SCC 734 to substantiate this submission. Secondly, on the application of the doctrine of 'comity of instrumentalities', Mr. Lekhi learned Senior Counsel argues that the Executive cannot be permitted to overreach or nullify judicial pronouncements. Thirdly, that there is an element of continuity in these appointments as emphasised in Kumari Shrilekha Vidyarthi. Mr. Manoj Goel learned Counsel for some of the other Respondents further submits that on a proper perusal of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani (1989) 2 SCC 691 and the Constitutional Bench in Zee Telefilms Ltd. v. Union of India (2005) 4 SCC 649, it is mani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it is beyond cavil that certainty in law is an essential ingredient of rule of law. A departure may only be made when a coordinate or co-equal Bench finds the previous decision to be of doubtful logic or efficacy and consequentially, its judicial conscience is so perturbed and aroused that it finds it impossible to follow the existing ratio. The Bench must then comply with the discipline of requesting the Hon'ble Chief Justice to constitute a larger Bench. 11. If binding precedents even of co-ordinate strength are not followed, the roots of continuity and certainty of law which should be nurtured, strengthened perpetuated and proliferated will instead be deracinated. Although spoken in a totally different context, we are reminded of the opening stanza of the poem 'The Second Coming' authored by William Butler Yeats. The lines obviously do not advert to the principle of precedent but they are apposite in bringing out the wisdom of this ancient and venerable principle. Turning and turning in the widening gyre The falcon cannot hear the falconer; Things fall apart; the centre cannot hold; Mere anarchy is loosed upon the world. 12. In the context of inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely because three is larger than two. The Court sits in Divisions of two and three-Judges for the sake of convenience and it may be inappropriate for a Division Bench of three-Judges to purport to overrule the decision of a Division Bench of two Judges. (Vide Young v. Bristol Aeroplane Co. Ltd.) It may be otherwise where a Full Bench or a Constitution Bench does so. It is pertinent to record here that because of the doubt cast on the validity of the opinion in Sher Singh, the question of the effect of delay on the execution of a death sentence was referred to a Division Bench of five Judges, and in Triveniben v. State of Gujarat, the Constitution Bench overruled T.V. Vatheeswaran. 27. What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case raising the same point subsequently before a Division Bench of a smaller number of Judges? There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other. The principle was reaffirmed in Union of India v. Godfrey Philips India Ltd. which noted that a Division Bench of two Judges of this Court in Jit Ram Shiv Kumar v. State of Haryana had differed from the view taken by an earlier Division Bench of two Judges in Motilal Padampat Sugar Mills v. State of U.P. on the point whether the doctrine of promissory estoppel could be defeated by invoking the defence of executive necessity, and holding that to do so was wholly unacceptable reference was made to the well accepted and desirable practice of the later Bench referring the case to a larger Bench when the learned Judges found that the situation called for such reference. 28. We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Inspector Rooplal v. Lt. Governor (2000) 1 SCC 644, this Court in Government of Andhra Pradesh v. A.P. Jaiswal (2001) 1 SCC 748 has said that: Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle of stare decisis etc. These rules and principles are based on public policy and if these are not followed by courts then there will be chaos in the administration of justice, which we see in plenty in this case. 14. Sitting in a Division Bench of two, we at present can do no better than apply the rules of precedent as have been left for us to follow. The law pertaining to the appointment of Additional District Government Counsel, Assistant District Government Counsel, Panel lawyers and Sub District Government Counsel was directly in issue before the Three-Judge Bench in State of U.P. v. Johri Mal (2004) 4 SCC 714 where the law has been comprehensively clarified. No purpose is served by discussing Kumari Shril ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has a nexus with the objective intended to be achieved by the administrator. For judging the arbitrariness of the order, the test of unreasonableness may be applied. The action of the State, thus, must be judged with extreme care and circumspection. It must be borne in mind that the rights of the Public Prosecutor or the District Counsel do not flow under a statute. Although, discretionary powers are not beyond the pale of judicial review, the courts, it is trite, allow the public authorities sufficient elbow space/play in the joints for a proper exercise of discretion. ... 44. Only when good and competent counsel are appointed by the State, the public interest would be safeguarded. The State while appointing the Public Prosecutors must bear in mind that for the purpose of upholding the rule of law, good administration of justice is imperative which in turn would have a direct impact on sustenance of democracy. No appointment of Public Prosecutors or District Counsel should, thus, be made either for pursuing a political purpose or for giving some undue advantage to a section of the people. Retention of its counsel by the State must be weighed on the scale of public inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is an echo of that articulated in Johri Mal, the State, like any other litigant, must have the freedom to appoint counsel in whom they repose trust and confidence. The only expectation is that the choice made by the State should not be such as could defeat the sacred and onerous responsibility of ensuring that the justice is meted out to all citizens. In Johri Mal, this Court has categorically rejected the claim of an advocate to continuous renewal or re-appointment as a Government Advocate. We entirely agree with this exposition of the law. We think that the correct approach is to ensure the competency of advocates being considered for appointment of Additional District Government Counsel, Assistant District Government Counsel, Panel lawyers and Sub District Government Counsel. It seems to us that it would be an incorrect approach to start this process by considering the re-appointment or renewal of existing Government Counsels since that would dilute, nay, dissolve the discretion of the Government to appoint advocates whom they find trustworthy. The High Court has followed the second approach leading to the dissatisfaction of the State Government and their resentment that their r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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