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Judgement Dated:13-Nov-2013  
Head Note: "While renewing the term of the appointment of the existing incumbents the State Government is required to consider their past performance and conduct in the light of the recommendations made by the District Judges and the District Magistrates...."- Supreme Court - 13/11/2013.
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL NO.10290  OF 2013
                  (Arising out of SLP(C) No. 11834 of 2013)

State of U.P.
                              Ajay Kumar Sharma and another                         

                               J U D G M E N T


1.    Leave granted.

2.    Legal Remembrancer’s Manual (for short, ‘LR  Manual’)  framed  by  the
Government of  Uttar  Pradesh  and  Section  24  of  the  Code  of  Criminal
Procedure (Cr.P.C.) contain a comprehensive  mechanism  for  appointment  of
District Government Counsel for Civil, Criminal and Revenue  Courts  in  the
State  and  renewal  of  their  term.  However,  from  1990  onwards   these
provisions have become victim of the spoil system and have been  misused  by
the party in power for conferring favours upon  chosen  advocates.  In  last
21/2 decades the appointments and renewal or  non-renewal  of  the  term  of
District Government Counsel and  termination  of  their  services  generated
huge litigation, the disposal of which has consumed substantial time of  the
Allahabad High Court and this Court.

3.    In Kumari Shrilekha Vidyarthi v. State of U.P. (1991) 1 SCC 212,  this
Court declared as arbitrary  and  unconstitutional  the  State  Government’s
decision to en  masse  terminate  the  appointment  of  District  Government
Counsel in all the districts as a prelude to fresh appointments.

4.    In State of U.P. v. Ramesh Chandra  Sharma  (1995)  6  SCC  527,  this
Court interpreted paragraph 7.06(3) of the LR Manual and observed:

      “In view of the clear provision in clause (3) of para  7.06  that  the
      ‘appointment of  any  legal  practitioner  as  a  District  Government
      Counsel  is  only  professional  engagement’,  it  is   difficult   to
      appreciate the submission for which  sustenance  is  sought  from  the
      provisions contained in the same Manual. The appointment being  for  a
      fixed term and requiring express renewal in the manner provided in the
      Manual, there is no basis to contend that it  is  not  a  professional
      engagement of a legal  practitioner  but  appointment  to  a  post  in
      government  service  which  continues  till  attaining  the   age   of
      superannuation. In the  earlier  decisions  of  this  Court  including
      Shrilekha Vidyarthi, the appointment of  District  Government  Counsel
      under the Manual has been understood only as a professional engagement
      of a legal practitioner. This contention is, therefore, rejected.”

5.    In Harpal Singh Chauhan v. State of U.P. (1993) 3 SCC 552, this  Court
analysed the provisions of LR Manual and observed:

      “As already mentioned above, Section 24 of the  Code  does  not  speak
      about the extension or renewal of the term of the Public Prosecutor or
      Additional Public Prosecutor. But after the expiry of the term of  the
      appointment of persons  concerned,  it  requires  the  same  statutory
      exercise, in which either new persons are appointed or those who  have
      been working as Public Prosecutor or Additional Public Prosecutor, are
      again appointed by  the  State  Government,  for  a  fresh  term.  The
      procedure prescribed in the Manual —  to  the  extent  it  is  not  in
      conflict with the provisions of Section 24 — shall  be  deemed  to  be
      supplementing the statutory provisions. But merely because there is  a
      provision for extension or renewal of the term,  the  same  cannot  be
      claimed as a matter of right.

      It is true that none of the appellants  can  claim,  as  a  matter  of
      right, that their terms should have been extended or that they  should
      be appointed against the existing vacancies, but, certainly, they  can
      make a grievance that either they have not received a  fair  treatment
      by the appointing authority or that the procedure  prescribed  in  the
      Code and in  the  Manual  aforesaid,  has  not  been  followed.  While
      exercising the power of judicial review even in respect of appointment
      of members of the legal profession as District Government Counsel, the
      Court can examine whether there was any infirmity  in  the  ‘decision-
      making  process’.  Of  course,  while  doing  so,  the  Court   cannot
      substitute its own judgment over the final decision taken  in  respect
      of selection of persons for those posts.”

6.    In State of U.P. v. Johri Mal (2004) 4  SCC  714,  this  Court  (three
Judge Bench) considered the question whether the  respondent  who  had  been
appointed as District Government Counsel (Criminal) at  Meerut  in  January,
1993 was entitled to have the term of his appointment renewed. The  Division
Bench of the High Court allowed the writ petition filed  by  the  respondent
and directed the State Government to renew  the  term  of  his  appointment.
This Court referred to the provisions of Section 24 of the Code of  Criminal
Procedure and amendment made therein by the Government of Uttar  Pradesh  as
also  LR  Manual,  some  judicial  precedents  including  Kumari   Shrilekha
Vidyarthi v. State of U.P. (supra), Harpal Singh Chauhan v.  State  of  U.P.
(supra), State of U.P. v. U.P. State Law Officers Association (1994)  2  SCC
204, State of U.P. v. Ramesh Chandra Sharma (supra) and made  the  following
significant observations about the nature of the  office  held  by  District
Government Counsel:

      “The District Government Counsel appointed  for  conducting  civil  as
      also criminal cases hold offices of great  importance.  They  are  not
      only officers of the court but also the representatives of the  State.
      The court reposes a great deal of confidence in them. Their opinion in
      a  matter  carries  great  weight.  They  are   supposed   to   render
      independent,  fearless  and  non-partisan  views  before   the   court
      irrespective of the result of litigation which may ensue.

      The Public Prosecutors have greater responsibility. They are  required
      to perform statutory duties independently  having  regard  to  various
      provisions  contained  in  the  Code  of  Criminal  Procedure  and  in
      particular Section 320 thereof.

      The Public Prosecutors and the Government Counsel  play  an  important
      role in administration of justice. Efforts are required to be made  to
      improve the  management  of  prosecution  in  order  to  increase  the
      certainty of conviction and punishment for most serious offenders  and
      repeaters. The prosecutors should not be overburdened  with  too  many
      cases of widely varying degrees of seriousness with too few assistants
      and inadequate financial resources. The prosecutors  are  required  to
      play  a  significant  role  in  the  administration  of   justice   by
      prosecuting only those who  should  be  prosecuted  and  releasing  or
      directing the use of non-punitive methods of treatment of those  whose
      cases would best be processed.

      The District Government  Counsel  represent  the  State.  They,  thus,
      represent the interest of the general public before a  court  of  law.
      The Public Prosecutors while presenting the prosecution  case  have  a
      duty to see that innocent persons may not be convicted as well  as  an
      accused  guilty  of  commission  of  crime  does  not  go  unpunished.
      Maintenance of law and order in the society and, thus, to some  extent
      maintenance of rule of law which is the basic fibre for upholding  the
      rule of democracy lies in their hands. The Government  Counsel,  thus,
      must  have  character,  competence,  sufficient  experience  as   also
      standing at the Bar. The need for employing meritorious and  competent
      persons to keep the standard of the high offices cannot be  minimised.
      The holders of the post have a public duty to perform. Public  element
      is, thus, involved therein.

      In the matter of engagement of a District Government Counsel, however,
      a concept of public office does not come into  play.  However,  it  is
      true that in the  matter  of  counsel,  the  choice  is  that  of  the
      Government and none can claim a  right  to  be  appointed.  That  must
      necessarily be so  because  it  is  a  position  of  great  trust  and
      confidence. The provision of Article 14, however, will be attracted to
      a limited extent as the functionaries named in the  Code  of  Criminal
      Procedure are public functionaries. They also have a  public  duty  to
      perform. If the State fails to discharge its public duty  or  acts  in
      defiance, deviation and departure of the principles of law, the  court
      may interfere. The court may also interfere when the legal policy laid
      down by the  Government  for  the  purpose  of  such  appointments  is
      departed from or mandatory provisions of law are  not  complied  with.
      Judicial review can also be resorted to,  if  a  holder  of  a  public
      office is sought to be removed for reason dehors the statute.”

The Court then considered whether the High Court  was  right  in  issuing  a
mandamus for renewal of the term of the respondent  as  District  Government
Counsel (Criminal):

      “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  lawyers  concerned   for
      discharging their duties, the District Magistrate is supposed to  know
      their conduct outside the court vis-à-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.

      We are also pained to see that the State of Uttar  Pradesh  alone  had
      amended sub-section (1) of Section 24 and  deleted  sub-sections  (4),
      (5) and  (6)  of  Section  24  of  the  Code  of  Criminal  Procedure.
      Evidently, the said legislative step had been taken  to  overcome  the
      decision of this Court in Kumari Shrilekha Vidyarthi. We  do  not  see
      any rationale in the said action. The learned  counsel  appearing  for
      the State, when questioned, submitted that such a step had been  taken
      having regard to the fact that exhaustive provisions are laid down  in
      the Legal Remembrancer’s Manual which is a complete code in itself. We
      see no force in the said submission as a law cannot be substituted  by
      executive  instructions  which  may  be  subjected  to  administrative
      vagaries. The  executive  instructions  can  be  amended,  altered  or
      withdrawn at the whims and caprice of the executive for the  party  in
      power. Executive instructions, it is beyond any cavil,  do  not  carry
      the same status as of a statute.

      The State should bear in mind the dicta  of  this  Court  in  Mundrika
      Prasad Singh as regards the necessity to consult the  District  Judge.
      While making appointments of District Government  Counsel,  therefore,
      the State should give primacy to the opinion of  the  District  Judge.
      Such a course of action would demonstrate fairness and  reasonableness
      of action and, furthermore, to a large extent the action of the  State
      would not be dubbed as politically motivated or  otherwise  arbitrary.
      As noticed hereinbefore, there  also  does  not  exist  any  rationale
      behind deletion of the provision relating  to  consultation  with  the
      High Court in the matter of appointment of the Public  Prosecutors  in
      the High Court. The  said  provision  being  a  salutary  one,  it  is
      expected that the State of U.P. either would suitably amend  the  same
      or despite deletion shall consult the High Court with a view to ensure
      fairness in action.”

7.    The aforesaid judgment was followed by a two Judge Bench in  State  of
U.P. v. Rakesh Kumar Keshari (2011) 5 SCC 341  and  it  was  held  that  the
respondent was not entitled to claim  renewal  of  his  term  as  of  right.
Paragraphs 32 to 36 of that judgment read as under:

      “32. This Court in Johri Mal case further held that  the  L.R.  Manual
      contains executive instructions and is not law within the  meaning  of
      Article 13. After emphasising that a Public  Prosecutor  is  not  only
      required to show his professional competence but is also  required  to
      discharge certain  administrative  functions,  it  is  held  that  the
      respondent therein had no effective  control  over  ADGCs  for  taking
      steps and therefore action on the part of the  State  was  not  wholly
      without jurisdiction requiring  interference  by  the  High  Court  in
      exercise of its power of  judicial  review  while  setting  aside  the
      direction given by  the  High  Court  to  constitute  the  five-member
      collegium headed by the District  Judge  to  make  recommendation  for
      appointment to the post of DGC (Criminal),  this  Court  had  to  take
      pains to explain to all concerned that the appointment of the District
      Government Counsel cannot be equated with the appointments of the High
      Court and the Supreme Court Judges and  a  distinction  must  be  made
      between professional engagement and a holder of high public office.

      33. This Court has explained that various doctrines and the provisions
      of the Constitution  which  impelled  the  Supreme  Court  in  Special
      Reference case, to give the meaning of “consultation” as “concurrence”
      and wherein the Chief Justice of India will have a primacy, cannot  be
      held to be applicable  in  the  matter  of  consultation  between  the
      District  Magistrate  and  the  District  Judge  for  the  purpose  of
      preparation of a panel of the District Government Counsel.

      34. Applying the principles of law laid down  by  this  Court  in  the
      abovequoted decision, this Court finds that the decision of the  State
      Government not to accept  the  recommendation  made  by  the  District
      Magistrate cannot be said to be arbitrary. There is no manner of doubt
      that the ADGC (Criminal) are not only officers of the court  but  also
      the representatives of the State. They represent the interest  of  the
      general public before a court of law. The holders of the post  have  a
      public duty to perform. However, in the matter of engagement  of  ADGC
      (Criminal) the concept of public office does not come into  play.  The
      choice is that of the Government and none can  claim  a  right  to  be
      appointed because it is a position  of  great  trust  and  confidence.
      Article 14, however, in a given case, may be attracted  to  a  limited
      extent if the State fails to discharge its  public  duty  or  acts  in
      defiance, deviation and departure of the principles of law.

      35. This position is again made clear in  an  unreported  decision  of
      this Court dated 11-11-2010 rendered in Civil Appeal No. 3785 of 2003.
      In the said case the State of U.P. by its  order  dated  3-6-2002  had
      rejected the request of the respondent Satyavrat Singh for renewal  of
      the extension of his term as a District Government Counsel (Criminal).
      The respondent had challenged the  same  in  the  writ  petition.  The
      Allahabad High Court had quashed the order 3-6-2002  refusing  renewal
      of the term  of  the  respondent  as  a  District  Government  Counsel
      (Criminal) and had directed the State Government to renew the term  of
      the respondent as Government Counsel. While allowing the appeal  filed
      by the State Government this Court has held as under:

           “It is difficult to discern as to how the High Court has  upheld
           the  unstatable  proposition  advanced  by  the  respondent  for
           extension of his term as Government Counsel. We wish to  say  no
           more in this matter since the subject-matter that arises for our
           consideration is squarely covered by the decision of this  Court
           in State of U.P. v. Johri Mal. This Court took the view that  in
           the matter of engagement of a  District  Government  Counsel,  a
           concept of public office does not come into play. The choice  of
           a counsel is for the Government and none can claim a right to be
           a counsel. There is no right for  appointment  of  a  Government

           The High Court has committed  a  grave  error  in  renewing  the
           appointment of the respondent as Government Counsel.

           Needless to state  that  the  High  Court  in  exercise  of  its
           jurisdiction under Article 226  of  the  Constitution  of  India
           cannot compel the State to utilise the services of  an  advocate
           irrespective of its choice. It is for the State  to  select  its
           own counsel.

           The impugned order of the High Court is set aside. The appeal is
           accordingly, allowed.”

      36. Thus it was not open to the  respondents  to  file  writ  petition
      under Article 226 of the Constitution for compelling the appellants to
      utilise their services as advocates  irrespective  of  choice  of  the
      State. It was for the State to select its own counsel. In view of  the
      poor performance of the respondents  in  handling/conducting  criminal
      cases, this Court is of the opinion that the High  Court  committed  a
      grave error in giving direction to the District Magistrate to  forward
      better particulars of 10 candidates whose names were included  in  the
      two panels prepared pursuant to the advertisement dated 16-1-2004  and
      in setting aside the order dated 7-9-2004 of the  Principal  Secretary
      to the Chief Minister, U.P. calling upon the  District  Magistrate  to
      send another panel/list for appointment  to  the  two  posts  of  ADGC

                                                            (emphasis added)

8.    In the meanwhile, the State Government issued  order  dated  13.8.2008
by which LR Manual was amended and  the  requirement  of  consultation  with
District Judge in the matter of appointment of District  Government  Counsel
was deleted. That order was challenged before the High  Court  in  W.P.  (C)
No.7851/2008 and a batch of more than 100  writ  petitions.  The  same  were
disposed of by  a  Division  Bench  of  the  High  Court  vide  order  dated
6.1.2012, the operative portion of which reads as under:

      “253. (1) In view of above, the writ petitions are allowed and a  writ
      in the nature of certiorari is issued quashing the impugned Government
      Order dated 13.8.2008 contained in  Annexure  No.l  to  writ  petition
      No.7851(M/B) of 2008 to the extent of the amendment made in  the  L.R.
      Manual deleting the consultation process with the District Judge  with
      consequential benefits,

      (2)   A further writ, order or direction in the nature  of  certiorari
      is issued quashing the orders dated 17.4.2011 and 20.4.2011, contained
      as Annexures 1 and 2 respectively to  writ  petition  No.3922(M/B)  of
      2011,  order  dated  28.4.2011,  followed  by  order  dated  30.4.2011
      contained as  Annexures  26  and  27  respectively  in  writ  petition
      No.4817(M/B) of 2011, order dated 17.4.2011 and order dated 19.4.2011,
      contained  as  Annexures  1  and  2  respectively  in  writ   petition
      No.4084(M/B) of 2011 and the impugned order dated 18.4.2011, passed in
      Writ Petition No.3860(M/B) of 2011 contained  in  Annexure  No.l  with
      costs, Cost is quantified to Rs.2 lacs for each of the petitioners  of
      the aforesaid four writ petitions, out of which, the petitioners shall
      be entitled to withdraw an amount  of  Rs.  1,50,000/-  and  the  rest
      Rs.50,000/- shall be transmitted to the Mediation Centre of this Court
      at Lucknow. Let the cost be deposited within two months from today. In
      the event of default to deposit the cost, it  shall  be  recovered  as
      arrears of land revenue  by  the  District  Magistrate  concerned  and
      thereafter be remitted to  this  Court.  Registry  to  take  follow-up

      (3)   A further writ, order or direction in the nature of mandamus  is
      issued directing the State Government to  remove  all  those  District
      Government Counsel or Addl. District Government Counsel who have  been
      involved in criminal case or against whom an investigation of criminal
      case is pending after serving a show cause notice within a  period  of
      two months.

      (4)   A further writ, order or direction in the nature of mandamus  is
      issued commanding the State  of  U.P  to  re-advertise  the  posts  in
      question keeping in view the observation made in the body of  judgment
      and take a fresh decision strictly  in  accordance  with  L.R.  Manual
      expeditiously, say within a period of three months.  The  petitioners,
      who were working at the time of filing of the writ petitions shall  be
      permitted to continue to discharge their obligation till their case is
      reconsidered in accordance  with  the  provisions  contained  in  L.R.
      Manual after fresh advertisement of the vacancies in the newspaper.

      Let a copy of the judgment be sent to Hon'ble  the  Chief  Justice  of
      this Court, the Chief  Secretary  of  the  State  Government  and  the
      Principal Secretary, Law forthwith by the registry.”

Similar writ petitions were disposed of by the High Court vide orders  dated
11.1.2012, 12.1.2012 and 9.2.2012  by  adopting  the  reasons  contained  in
order dated 6.1.2012.

9.    The State of Uttar Pradesh challenged the aforesaid orders  in  SLP(C)
Nos.4042-4043/2012 – State of U.P. and others v.  Sadhna  Sharma  and  batch
matters. At the hearing of the special  leave  petitions,  a  statement  was
made on behalf of the State Government that it has taken a  policy  decision
to implement the High Court’s order and not  to  press  the  matter  pending
before this Court. In view of the statement made  on  behalf  of  the  State
Government, this Court disposed of the special leave  petitions  vide  order
dated 17.7.2012 (revised), the relevant portions  of  which  are  reproduced

      “We may notice that the primary contention raised  before  us  is  not
      with regard to the constitutional validity or otherwise of the amended
      provisions of the Criminal Procedure Code but the contention  is  that
      the State Government despite its policy decision is  not  implementing
      the judgment of the High Court in its true spirit  and  substance.  To
      substantiate such a plea, the argument is  that  the  High  Court  had
      specifically directed in Clause (15) in para 248 as  well  as  Clauses
      (2) & (4) in para 253 (operative part of the judgment) that the  cases
      of the persons in position should be reconsidered in  accordance  with
      the provisions contained in the  L.R.  Manual  as  well  as  that  the
      District Government Counsel could not be removed even  under  existing
      L.R. Manual without considering their case for renewal.

      To the contra, the argument raised before the High Court is that  this
      clause is applicable only to that class of  persons  and  not  to  the
      private respondents before the High Courts and appellants herein.

      Since there is unanimity of the view that the  judgment  of  the  High
      Court is required to be implemented in true spirit and  substance,  we
      consider it necessary to issue certain clarifications with  regard  to
      the  judgment  in  question  and  despite  the  fact  that  the  State
      Government has chosen to withdraw the Special Leave  Petition  against
      the judgment and has taken a policy decision to  implement  the  same.
      The directions are:-

           (1) In terms of the above referred clauses of  the  judgment  of
           the High Court, the vacancies which have already been filled  in
           accordance with Section 24 of the Criminal  Procedure  Code  and
           certain provisions of the L.R. Manual and  unamended  provisions
           of the Criminal Procedure Code. To be more specific,  i.e.,  the
           appointments which have been made in consultation with the  High
           Court and/or the District and Sessions Judge of  the  respective
           district and who continue to function in  the  respective  posts
           shall not be disturbed.

           (2)  Against  the  existing  vacancies  the  cases  of  all  the
           appellants herein, who are in service or are out of  service  as
           well as any of the petitioners before  the  High  Courts,  whose
           services were terminated at any  point  of  time  including  the
           persons who had filed writ petitions in the  High  Court  during
           the pendency of the  writ  petition  and/or  the  present  civil
           appeals shall be considered for  renewal  /  reconsideration  in
           accordance with the judgment of this Court within  a  period  of
           three months from today.

           (3)  For  implementation  of  these  directions  the  Secretary,
           Department of  Law  and  Justice,  State  Government,  shall  be
           personally responsible and should complete the  exercise  within
           the stipulated period to ensure that required number  of  public
           prosecutors are present in the Courts for  expeditious  disposal
           of cases.

      The renewal/reconsideration/appointment shall be done by the concerned
      authority  in  the  above  manner.  We  would  clarify  that  all  the
      appointments either directly or by way of  renewal  /  reconsideration
      shall only be made in consultation with  the  High  Court  and/or  the
      District and Sessions Judges as the case may be. All  concerned  shall
      duly abide, and without default, with the  process  of  selection  and
      appointment, as afore-stated.”

10.   Some of the existing incumbents, whose appointments were not  renewed,
filed Writ Petition Nos. 6069/2012 and 6233/2012 before the High Court.  The
same were disposed of in terms of  order  dated  17.7.2012  passed  by  this
Court in SLP(C) Nos.4042-4043/2012 and batch matters.

11.   In State of Uttar Pradesh v. Ashok Kumar Nigam (2013)  3  SCC  372,  a
two Judge Bench of this Court referred to paragraphs 7.06  and  7.08  of  LR
Manual and held that order dated 3.4.2008 passed  by  the  State  Government
refusing to renew the appointment of the respondent was vitiated due to non-
application of mind. At the same time, the two Judge  Bench  made  it  clear
that the High Court could not have  directed  appointment  while  regulating
the age of the appointees. Paragraphs 20 and 21  of  that  judgment  are  as

      “20. The order dated 3-4-2008, which we have reproduced above, clearly
      shows non-application of mind  and  non-recording  of  reasons,  which
      leads only to one conclusion, that the said  order  was  an  arbitrary
      exercise of power by the State. We cannot  find  any  fault  with  the
      reasoning of the High Court in that behalf. But we do find some  merit
      in the contention raised on behalf of the  appellant  State  that  the
      High Court should not have directed appointments while regulating  the
      age, as has been done by the High  Court  in  operative  part  of  its
      judgment. There is a right of consideration, but none can claim  right
      to appointment. Para 7.06 states that renewal beyond  60  years  shall
      depend upon continuous good work, sound integrity and physical fitness
      of the counsel. These are the considerations which have  been  weighed
      by the competent authority in the State Government to examine  whether
      renewal/extension beyond 60 years should be granted or not. That  does
      not ipso facto means that there is a right to appointment  up  to  the
      age of 60 years irrespective of work, conduct  and  integrity  of  the
      counsel. The rule provides due safeguards as it calls for  the  report
      of the District Judge and the District Officer granting renewal.

      21. Thus, for the above-recorded reasons, while declining to interfere
      with the judgment of the High Court, we  direct  that  the  Government
      shall consider cases of the respondents in these petitions for renewal
      in accordance with the procedure prescribed  and  criteria  laid  down
      under Paras 7.06 to 7.08 of the LR Manual. The consideration shall  be
      completed as expeditiously as possible and, in  any  case,  not  later
      than three months from today.”

                                                            (emphasis added)

12.   In the purported compliance of the directions given by the High  Court
and this Court, the State Government  considered  the  cases  of  respondent
Nos.1 and 2 and  others  for  renewal  of  their  appointments  as  District
Government Counsel but rejected the same vide orders  dated  22.10.2012  and
26.10.2012. Respondent Nos.1 and 2 challenged those orders in Writ  Petition
(M/B) No.9127/2012 filed before the High Court. They also prayed  for  issue
of a mandamus commanding the opposite parties  (the  appellants  herein)  to
allow them to continue as District Government Counsel and renew the term  of
their appointment as per the recommendations  of  District  Judges.  Similar
writ petitions  were  filed  by  others  whose  appointments  had  not  been

13.   On 7.12.2012,  the  Division  Bench  of  the  High  Court  passed  the
following order:

      “We have heard learned counsel for parties and perused  the  pleadings
      of writ petition.

      Learned Advocate  General,  State  of  U.P.  submitted  that  he  will
      personally look into the files of all the orders which are impugned in
      this Bunch of writ petitions.

      According  to  learned  Advocate  General  the   legal   position   as
      decipherable from the judgments of Hon'ble  the  Apex  Court  in  such
      cases as the one in hand of the bunch is that there  is  a  duty  cast
      upon the State to examine and assess the performance  and  records  of
      candidates dispassionately but there  is  no  corresponding  right  in
      their favour to claim appointments or renewal of  appointments.  Thus,
      according to him there would be no ambiguity  in  dealing  with  these
      matters during  the  course  of  exercise  to  be  undertaken  by  the
      Administrative Department.

      It would not be out of place to  observe  that  in  the  order  passed
      earlier, this Court has only reiterated the directions as given by the
      Hon'ble Apex Court.

      Besides, the State must also remember that the Special Leave  Petition
      filed by  it  against  the  judgment  of  coordinate  Bench  has  been
      withdrawn and thus the State has accepted the verdict,  which,  inter-
      alia, provides for the primacy of opinion of learned  District  Judge.
      None-the-less, District Judges are also expected not to  record  their
      opinions without obtaining opinions of  courts  where  the  candidates
      have worked as Government pleaders and so should also be in  the  case
      of District Magistrates concerned  in  order  to  provide  independent
      views on the basis of materials on record.

      At this stage, learned Advocate  General  prays  for  and  is  granted
      adjournment till  16.01.2013  to  ensure  exercise  in  terms  of  the
      judgments and orders of Hon'ble the Apex Court as well  as  this  High
      Court before the next date of hearing.

      List this matters on 16.01.2013 along with  Writ  Petition  Nos.  9992
      (M/B) of 2012, 10134 (M/B) of 2012, 10144 (M/B) of 2012,  10152  (M/B)
      of 2012, 10153 (M/B) of 2012, 10154 (M/B)  of  2012,  10155  (M/B)  of
      2012, 10156 (M/B) of 2012, 10157 (M/B) of 2012, 10169 (M/B)  of  2012,
      10178 (M/B) of 2012, 10179 (M/B) of 2012, 10185 (M/B) of  2012,  10188
      (M/B) of 2012, 9970 (M/B) of 2012, 10040 (M/B) of 2012, 10054 (M/B) of
      2012, 10055 (M/B) of 2012, 10064 (M/B) of 2012, 10069 (M/B)  of  2012,
      10074 (M/B) of 2012, 10075 (M/B) of 2012, 10077 (M/B) of  2012,  10078
      (M/B) of 2012, 10083 (M/B) of 2012, 10085 (M/B) of 2012,  10088  (M/B)
      of 2012, 10089 (M/B) of 2012, 10106 (M/B)  of  2012,  10107  (M/B)  of
      2012, 10120 (M/B) of 2012, 10127 (M/B) of 2012, 10128 (M/B)  of  2012,
      10130 (M/B) of 2012, 10133 (M/B) of 2012 and 10999 (M/B) of 2012.

      In the meantime, the Department of Law may also complete the  exercise
      by undertaking independent examination of records as required of it in
      such cases where independent views of  District  Judges  and  District
      Magistrates  are  available,  in  the  light  of   observations   made
      hereinabove  in  order  to  expedite  the  process  of   renewal   and
      appointment but it shall not issue any fresh appointment letter.”
                                     (reproduced from the appeal paper book)

14.   In compliance of the direction contained in  the  aforesaid  order  of
the High Court, the State  Government  is  said  to  have  scrutinized  some
records and filed  status  report.  On  the  next  date  of  hearing,  i.e.,
7.3.2013, the Additional  Advocate  General  appearing  for  the  appellants
herein informed the High Court that complete  status  report  could  not  be
filed due to non-availability of documents. The Division Bench of  the  High
Court accepted her  request  for  adjournment  and  posted  the  matter  for
20.3.2013. Simultaneously, the appellants were directed to issue orders  for
renewal in the cases where the details of the applicants were available.

15.   The appellants have questioned the High  Court’s  order  primarily  on
the ground that the same is contrary to the law  laid  down  by  the  larger
Bench in State of U.P. v. Johri Mal (supra). According  to  the  appellants,
order passed by this Court in SLP(C) Nos.  4042-4043/2012  is  per  incuriam
because the same is contrary to the ratio of  the  judgment  of  the  larger
Bench. Another contention of the appellants is that appointment of  District
Government Counsel and Additional District Government  Counsel  and  renewal
of their term can be made only after making evaluation  of  their  work  and
conduct keeping in view their past performance and the High Court could  not
have issued an interim mandamus for renewal  of  the  term  of  the  private

16.   Before proceeding further, we may mention that in  compliance  of  the
directions given by this Court on 26.8.2013,  2.9.2013  and  5.9.2013,  Shri
S.K. Pandey, Principal Secretary  (Law)/Legal  Remembrancer,  Government  of
Uttar Pradesh filed affidavits dated 1.9.2013 and 8.9.2013. For the sake  of
reference, paragraphs 2 and 3 of the first affidavit and paragraph 2 of  the
second affidavit are extracted below:

      “First Affidavit dated 1.9.2013
      2. That the present petition arises out of the  Writ  Petition  (Misc.
      Bench) No. 9127 of 2012 along  with  which  there  are  248  petitions
      pending before the Lucknow Bench of the Allahabad High  Court  and  in
      the said total 249 Writ Petitions, there are total 443  claimants  for
      their renewal for the post of District Government Counsel / Additional
      District Government Counsel / Assistant District  Government  Counsel,
      etc. for three different categories (Criminal, Civil and Revenue).  In
      addition to the above 443 claimants, after 16.01.2013 further about 85
      Writ Petitions have been filed claiming renewals and reappointments on
      the basis of earlier appointments and in the said Writ Petitions  also
      there are  about  200  claimants  there  by  making  total  about  643
      claimant. Contrary to the said claim of renewals of so many candidates
      whose report of District Judge are favourable, the number of available
      vacancies are only 354. Most of the reports of  the  Districts  Judges
      are stating that their  work  and  conduct  are  good  and  they  have
      knowledge of law. None of the  reports  say  any  adverse  comment  or
      anything which could be deemed to be dereliction of  duty.  There  are
      many instances where the candidature for renewal have been recommended
      by the District judge with  identically  worded  recommendations  even
      when the  record  bears  out  that  the  candidate's  performance  has
      remained lacking.

      3.  That  in  the  first  batch  of  total  443  claimants,  430  writ
      petitioners are those who had been appointed  at  the  time  when  the
      amendment to L.R. Manual had taken place on 13.08.2008. There are only
      13 petitioners renewals who had been appointed in  terms  of  the  un-
      amended L.R. Manual (existing as on today).”

      Second Affidavit dated 8.9.2013

      “2. It is submitted that the cases of all the eligible  persons  shall
      be  considered  against  the  available  vacant  posts   strictly   in
      consultation with the District Judge(s) and District Magistrate(s).”

17.   Respondent Nos.1 and 2 have filed counter to the  first  affidavit  to
controvert the statement of the Law Secretary and accused the appellants  of
trying to mislead the Court. They have also  relied  upon  the  judgment  of
this Court in State of Uttar  Pradesh  v.  Ashok  Kumar  Nigam  (supra)  and
pleaded that in view of the favourable recommendations made by the  District
Judges and the District Magistrates, the  State  Government  is  obliged  to
renew their appointments.

18.   While Shri Harish N. Salve, learned senior counsel appearing  for  the
appellants argued that the order under challenge should be set  aside  being
contrary to the law laid down by this Court in Johri Mal’s case  and  Rakesh
Kumar Keshari’s case and the State Government should be allowed to  consider
the  candidature  of  all  eligible  persons  for  appointment  against  the
available vacancies in consultation with the District  Judges  and  District
Magistrates, Shri Aman Lekhi,  learned  senior  counsel  appearing  for  the
respondent Nos. 1 and 2 argued that this Court  should  not  interfere  with
the impugned order because the direction given  by  the  High  Court  is  in
consonance with order dated 6.1.2012  passed  by  the  High  Court  and  the
clarifications given by this Court on 17.7.2012. Shri Lekhi  criticized  the
affidavits of the Law Secretary and submitted that the officer has tried  to
mislead this Court on  the  issue  of  number  of  available  vacant  posts.
Learned senior counsel further argued that respondent Nos.1 and 2 and  other
similarly  situated  persons  are  entitled  to  have  the  term  of   their
appointment renewed because the District Judge and the  District  Magistrate
have not found anything adverse qua their conduct and performance.

19.   We have given serious thought to the entire  matter.  About  100  writ
petitions  with  prayer  similar  to  those  contained  in   Writ   Petition
No.9127/2012 are pending before the High Court.  The  question  whether  the
existing District Government  Counsel  and  Additional  District  Government
Counsel are entitled to renewal of their term  as  of  right  or  the  State
Government is required to act in consonance with paragraph 7.08  of  the  LR
Manual and the judgments of this Court in Johri Mal’s case and Rakesh  Kumar
Keshari’s case, is yet to be decided. Therefore, the Division Bench  of  the
High Court was not at all justified  in  issuing  an  interim  mandamus  for
renewal of the appointments of respondent Nos. 1 and 2. While doing so,  the
High Court ignored the law  laid  down  in  Ramesh  Chandra  Sharma’s  case,
Harpal Singh Chauhan’s case, Johri Mal’s case  and  Rakesh  Kumar  Keshari’s
case as  also  Ashok  Kumar  Nigam’s  case,  that  appointment  of  District
Government Counsel and renewal of their term  is  required  to  be  made  in
accordance with the provisions of LR Manual read with Section 24 Cr.P.C.

20.   While renewing the term of the appointment of the existing  incumbents
the State Government is required to  consider  their  past  performance  and
conduct in the light of the recommendations made by the District Judges  and
the District Magistrates. Therefore, the High Court could not have issued  a
mandamus for renewal of the term of  respondent  Nos.  1  and  2  and  other
similarly situated persons and  thereby  frustrated  the  provisions  of  LR
Manual and Section 24 Cr.P.C.

21.   In the premise aforesaid, the  appeal  is  allowed  and  the  impugned
order is set aside. The State Government shall  now  fill  up  the  existing
vacant posts by considering the cases of all eligible  persons  strictly  in
accordance with the relevant provisions of LR Manual read  with  Section  24
Cr.P.C. and the judgments of this Court  in  Johri  Mal’s  case  and  Rakesh
Kumar Keshari’s case. The District Judges and the District Magistrates,  who
are required to be consulted by the State Government, are expected  to  make
objective assessment of the work, conduct and performance of the  candidates
and  make  recommendations  keeping  in  view  larger  public  interest   in
contradistinction to the interest of the particular political party.

22.   The cases of renewal of appointment of the  existing  incumbent  shall
likewise be considered in accordance with the  provisions  contained  in  LR
Manual and the judgments of this Court. This exercise  shall  be  undertaken
and completed within a period of four months from today.

23.   The Registry is  directed  to  send  a  copy  of  this  order  to  the
Registrar General of the Allahabad High Court who  shall  place  the  matter
before the Chief Justice of the High Court. The learned  Chief  Justice  may
consider the desirability of posting all the matters  before  one  Bench  to
facilitate expeditious adjudication of the pending matters.

                                              G.S. SINGHVI, C. NAGAPPAN J.J.

New Delhi,                                        
November 13, 2013.