# Court in Maneka Gandhi v. Union of India

- **Citation:** High Court of Judicature at Allahabad #39530
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/court-in-maneka-gandhi-v-union-of-india-39530
- **Pages:** 6

## Text

42 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
&DVH ODZ GLVFXVVHG
AIR 1978 SC 597
AIR 1990 SC 371

By the Court

1. Heard learned counsel for the petitioner
and learned standing counsel.

The petitioner is challenging the impugned
termination order dated 7.4.99(Annexure 12
to the writ petition). The petitioner was
appointed in the year 1963 as Junior Engineer
in Minor Irrigation Department, Uttar Pradesh
Government. At the time of termination of
service
he
was
working
as
Executive
Engineer. Thus the petitioner has put in about
36
years
service.
Now
the
impugned
termination order dated 7.4.99 has been
passed in which it has been stated that the
petitioner did not possess a Diploma from a
recognised institution and hence his initial
appointment in the year 1963 was illegal. The
Diploma, which the petitioner has, is from
Asia Engineering Institute, New Delhi and it
is alleged that this body is not recognised by
the Central or State Government.

2. In our opinion it is not open to the
respondents to suddenly wake up after a gap
of 35 years and declare that the petitioner's
certificate which he obtained before entering
service in the year 1963 was not a recognised
certificate, and hence the petitioner's initial
appointment in the year 1963 is invalid. The
petitioner has been working since the year
1963 onwards until the date of the termination
order and thereafter he was working in
pursuance of the order, of this Court dated
26.4.99, but he has not been paid his salary
after the date of termination.

3. In our opinion the validity of the
petitioner's
Diploma
should
have
been
considered at the time of appointing him in
the year 1963 or within a reasonable period
thereafter, but this matter can not be examined
after a gap of 35 or 36 years, as that would be
wholly arbitrary. As held by the Supreme
Court in Maneka Gandhi V. Union of India
(AIR 1978 SC 597) arbitrariness violates
Article 14 of the Constitution of India. The
view we are taking also finds support from the
decision of the Supreme Court in Smt.
Bhagwati Devi and others Vs. Delhi State
Mineral Development Corporation (AIR
1990 SC 371, vide paragraph 6)

On the facts and circumstances of the case
we allow the Petition and quash the impugned
order dated 7.4.99. The petitioner shall be
paid his arrears of salary within three months
from the date of production of a certified copy
of this order.
Petition Allowed.
-----------

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2ALL] Bhola Nath Yadav V State of U.P. & others 43
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By the Court

1. The present writ petitions have been
filed by one Bhola Nath Yadav and other by
Prabhat Kumar Mukherji who were working
as District Government Counsel (Crl.) and
Addl. District Government Counsel (Crl.) in
the district of Sonbhadra. Being aggrieved
against the order of non-renewal of their
postings on the designation, which they had
held they knocked the door of this Court.

2. Bhola Nath Yadav was initially
appointed on the post of A.D.G.C. (Crl.)
Sonbhadra on 26.2.1991 and worked as such
till 1995, as his term was renewed from time
to time. In the year 1995 the post of
D.G.C.(Criminal ) fell vacant, in pursuance of
which he applied for his appointment and he
was selected and appointed by the State
Government as D.G.C. (Criminal) Sonbhadra
on 16.12.1995. On a recommendation being
made by the District Judge and the District
Magistrate his term as D.G.C. (Criminal) was
renewed by the State Government on 24.6.97.
When the process for renewal of the term of
the petitioner was again started in the year
1998, the District Judge as well as the District
Magistrate recommended the case of the
petitioner for renewal by separate papers
dated 25.5.98 and 6.2.98 respectively. But his
term
was
not
renewed
by
the
State
Government. Sri Prabhat Kumar Mukherji
was selected and appointed on the post of
A.D.G.C.
(Criminal)
Sonbhadra
on
16.12.1995. On 24.6.1997 his term was
renewed. Again on 25.5.1998 the District
Judge recommended the renewal of the term
of Sri Prabhat Kumar Mukherji. On 6.6.98 the
District Magistrate also recommended the
name of Sri Prabhat Kumar Mukherji for
renewal. But on 30.4.99 the State Government
has refused to renew the term of Sri Prabhat
Kumar Mukherji and ordered him to be
relieved from the said post.

3. Both the petitioners have assailed the
order of the State Government refusing to
renew their terms on account of political bias.
They alleged that the State Government
wanted to appoint its own men in place of the
petitioners. They asserted before this Court
that in view of the recommendations which
were made by the District Judge as well as
District Magistrate their term ought to have
been renewed.

4. On behalf of the State Government
counter affidavit was filed. The learned Chief
Standing Counsel also produced the relevant
record before this Court. Counter affidavits
filed in both the cases do not disclose any
complaint against the petitioners. What has
been asserted in the counter affidavit is that
prerogative of the State to choose its lawyer.
It was vehemently argued by the learned
Chief Standing Counsel that the petitioners
have no right to be appointed as Government
Counsel on the criminal side. The State
should be left free to choose its counsel in the
same manner as a private individual. The
record, which was produced, does not disclose
that there exist any complaints against the
petitioners. Undoubtedly there exist a letter of
a political party, which was on record. Certain
allegations have been made to the effect that
the petitioners have leaning in favour of
particular leader and a particular party. But
there seems to be no allegation that they
actively indulged themselves into any political
activity. In the light of the aforesaid facts and
circumstances of the case we have to examine
as to whether the term of the petitioners for
the office which they held ought to have been
44 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
renewed by the State Government or not and
if the State Government did not renewed their
terms, the action of the State can be said to be
arbitrary or not.

5. It is well settled that even in
administrative matters the State is bound to
disclose reasons for taking any action.

6. In Sri Lekha Vidyarthi Vs. State of
U.P. (1991) S.C.C. page 212 Hon. Mr.
Justice Ram Manohar Sahai (as he then was)
observed:

"The expression "without assigning any
cause" means without communicating any
cause to the appointee whose appointment is
terminated and is not to be equated with
"without any existence of any cause" it
merely means that the reasons for which the
termination is made need not be assigned or
communicated to the appointee, though the
decision has to be communicated. The nonassigning of reasons or no communication
thereof may be based on public policy, but
termination
of
appointment
without
the
existence of any cogent reason in further once
of the object for which the power is given
would be arbitrary and therefore against the
public policy."

7. The principle laid down by the
Supreme Court was applied in the case of
termination of the services, also apply for
non-renewal of the term of the office which a
person holds.

8. Section 24 of the Criminal Procedure
Code deals with the appointment of Public
Prosecutor, which reads as under: -

"24. Public Prosecutors-(1) For every High
Court , the Central Government or the State
Government shall after consultation with the
High Court, appoint a Public Prosecutor and
may also appoint one or more Additional
Public Prosecutors, for conducting in such
Court, any prosecution, appeal or other
proceeding
on
behalf
of
the
Central
Government or State Government, as the case
may be.

(2) The Central Government may appoint
one or more Public Prosecutors, for the
purpose of conducting any case or class of
cases in any district, or local area.

(3)

For
every
district,
the
State
Government shall appoint a Public Prosecutor
and may also appoint one or more Additional
Public Prosecutor for the district.

Provided that the Public Prosecutor or
Additional Public Prosecutor appointed for
one district may be appointed also to be a
Public Prosecutor or an Additional Public
Prosecutor, as the case may be, for another
district.

(4) The District Magistrate shall, in
consultation with the Sessions Judge, prepare
a panel of names of persons, who are, in his
opinion, fit to be appointed as Public
Prosecutor or Additional Public Prosecutors
for the district.

(5) No personal shall be appointed by the
State Government as the Public Prosecutor or
Additional Public Prosecutor for the district
unless his name appears in the panel of names
prepared by the District Magistrate under subsection (4).

(6) Notwithstanding anything contained in
sub-section (5), where in a State there exists a
regular Cadre or 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
2ALL] Bhola Nath Yadav V State of U.P. & others 45
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 or an
Additional Public Prosecutor under subsection (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 purpose 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. 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.

In Harpal Singh Chauhan and others
Vs. State of U.P. (1993) 3 Supreme Court
cases 552, it was held by the Hon'ble
Supreme Court that the procedure prescribed
in the Manual (L.R. Manual) to the extent it is
not in conflict with the provisions of Section
24, shall be deemed to be supplementing the
statutory provisions. However, if there is any
conflict, then Section 24 of the Code being
statutory in nature will override the procedure
prescribed in the Manual.

10. It has been well settled since long that
the
lawyers
appointed
by
the
State
Government to conduct its case cannot claim
as a matter of right that their term should be
extended or they should be appointed against
the vacancies. But as held by Hon'ble
Supreme Court in Harpal Singh Chauhan
(Supra) they can certainly, raise a grievance
that either they have not received the fair just
and reasonable treatment by the appointing
authority or that the procedure prescribed in
the Code and in the Manual, have not been
followed. Although power has been vested in
a particular authority, in subjective terms, still
judicial review in permissible.

11. It was further observed by Hon'ble
Supreme Court in Harpal Singh Chauhan
(Supra) that 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
judgement, over the final decision taken in
respect of selection of persons for those posts.
But the Court can interfere if it is satisfied that
there is patent infraction of the statutory
provisions of the Code.

12. The quality of the work which is
assigned to Government counsel is to be
judged and assessed by the District and
Sessions Judge and the District Magistrate in
consultation with the Sessions Judge, prepare
a panel of the persons who was, in his opinion
fit to be appointed as Public Prosecutor or
Additional Public Prosecutor for the district;
meaning thereby; that the District Magistrate
has not been given a free hand to prepare a
panel of the persons, who in his opinion is fit
to appoint as Public Prosecutor or Additional
Public Prosecutor in the district. The exercise
of such a power must be in consultation with
the District Judge. The recommendation so
made in consultation with the District Judge is
to be taken into account by the State
Government
while
appointing
Public
Prosecutor or Additional Public Prosecutor or
renewal of their terms.

13. The scope of judicial review in the
matter of appointment or renewal of Public
46 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
Prosecutor or Additional Public Prosecutor is
limited to the extent that if the Court find that
in the "decision making process" the State
Government has acted arbitrarily; meaning
thereby; that if its decision is not in
conformity
with
Article
14
of
the
Constitution, which is the sworn enemy of
arbitrariness appear to be unjust, unfair and
unreasonable then the Court can set at naught
such a decision.

14. In view of the aforesaid reason we are
of the view that although the State is free to
choose its counsel either on criminal or civil
side and the lawyers cannot claim their
appointment or renewal as Government
counsel, but while doing so if it appears that
the action of the State smacks from the vice of
arbitrariness, meaning thereby that it appears
to be unfair, unjust and unreasonable, the
Court can intervene.

In State of U.P. Vs. Ramesh Chandra
Sharma and others A.I.R. 1996 Supreme
Court 864, Hon'ble J.S.Verma, J. speaking for
the Bench observed: -

In view of the clear provision in clause (3)
of para 7.06 that '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 post in Government service
which continues till attaining the age of
superannuation. In the earlier decisions of this
Court including Shrilekha Vidyarthi (A.I.R.
1991 S.C. 537) (Supra), 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.

It was further observed:

"The High Court has granted relief to
respondents Nos.1, 2 and 3 on the ground that
the action was arbitrary. It cannot be disputed
after the decision in Shrilekha Vidyarthi
(A.I.R. 1991 S.C. 537) (Supra) and those
following it, that the State action of refusing
renewal can be quashed if it is arbitrary. The
only question, therefore, is whether it is so as
found by the High Court. The High Court has
reached the conclusion that the only reason
disclosed by the State Government for
refusing to consider the case of these
respondents for renewal of their terms were
non-existent or extraneous. In substance, the
action
was
supported
by
the
State
Government on the ground that there was no
recommendation
made
by
the
District
authorities for making the renewal as required
by para 7.08. This is the only ground on
which the action was supported by the State
Government. However, the High Court found
that the report of the District Officer was
favourable to these respondents and the
District
Judge
had
really
recommended
renewal of their term. Admittedly, the only
ground on which the State Government
sought to support its action is found to be non-
existent in the record. This leads to the
inescapable conclusion that the action of
refusing renewal to respondents Nos.1, 2 and
3 by order dated 1.10.1992 was arbitrary and
on a non-existent ground. This view taken by
the High Court cannot, therefore, be faulted."

If, we in the light of the observation of
Hon'ble Supreme Court examine the facts of
this case, we would find that neither in the
counter affidavit filed in these cases, anything
adverse against the petitioners has been said
nor the record discloses any reason as to why
their term be not renewed. The record which
has been produced before us also does not
disclose any reason as to why the term of the
2ALL] Sri Shamsad Ahmad V The District Judge, Dehradun & others 47
petitioners were not extended or renewed.
Thus this is a case of assigning no reason.

We need not cite several other cases which
have been placed before us by Shri W.H.
Khan, learned counsel appearing on behalf of
petitioners. Suffice to say we refer only one
judgement of Allahabad High Court in P.N.
Sethi Vs. State of U.P. and others 1997 (15)
LCD 1046; where it was observed after
considering the provisions contained in para
7.08 of the L.R. Manual that the counsel in
the districts are treated as Law Officers of the
State who are holders of an 'Office' or 'Post'.
The aforesaid provision in the Chapter VII
(L.R. Manual) reporting to appointment and
condition
of
engagement
of
District
Government counsel that the appointments are
to be made and ordinarily renewed on
objective assessment of suitability of the
person, based on the opinion of the District
Officers and the District Judges and Character
Roll is maintained for keeping a record of the
suitability of the appointee to enable an
objective assessment for the purpose of his
continuance as a law officer in the district.

If it is assumed that such engagement are
only professional in nature and that the
appointment or renewed which is made by the
State Government pertains to subjective
satisfaction of the State Government, but it
should be based on certain materials. There
was no objective material before the State
Government to arrive at a conclusion that
their term may not be renewed. The only
relevant material before the State Government
was the report of the District Judge and the
District Magistrate, which was brushed aside,
without indicating any reason. There exist
nothing on the record to indicate that the
petitioners have suffered from any disability,
meaning thereby; that there was any defect in
their Character Roll or they were not suitable
for the post in question. The District Judge
who is best authority to assess and evaluate
the working of the petitioners submitted his
report in favour of the petitioners. The District
Magistrate also did not find that the
petitioners were not suitable for the posts,
which they held. Hence there was no material
before the State Government which can be
said to be adverse against the petitioners. The
order passed by the State Government does
not indicate any reason as to why their term
was not renewed, when in accordance with
the instructions contained in para 7.08 their
term
could
be
renewed
by the State
Government.

In view of what we have indicated herein
above both the writ petitions succeeds. A writ
order in the nature of certiorari quashing the
order of Government dated 30.4.99 refusing
to renew the term of the petitioners is issued
and the State Government is further directed
to consider the cases of the petitioners in the
light of the recommendation made by the
District Judge and the District Magistrate as
well as the observations of this Court. Till the
State Government takes its final decision the
petitioners will continue to discharge their
duties which were assigned to them.
Petition Allowed.
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