# Santosh Kumar Dohrey v. Pramukh Sachiv Nyay Evam Vidhi Paramarshi U.P. Sachivalay Lucknow & Ors

- **Citation:** (2023) 10 ILRA 1206
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-14
- **Case number:** Writ-C No. 42430 of 2014
- **Bench:** Salil Kumar Rai, Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-kumar-dohrey-v-pramukh-sachiv-nyay-evam-vidhi-paramarshi-u-p-sachivalay-49315
- **Pages:** 14

## Headnote

A. Service Law - Legal Remembrancer's
Manual - Criminal Procedure Code -
Section 24 - Termination of District
Government Counsel (Criminal) - No
notice and opportunity of hearing was
given - Effect - Renewal sought after
expiry of term - How far right accrue -
Held, appointment to the posts DGC (Crl)
by the State Government is a professional
engagement of an advocate. It is not a
civil post. The appointee does not have
any right for renewal or reappointment on
the post of D.G.C./A.D.G.C.(Crl.). Such
professional engagement can be terminated on
either
side
without
notice
and without
assigning any reason - By holding a post of
District Counsel or public prosecutor, no status
is conferred on the incumbent. The incumbent
has no legal enforceable right as such. (Para
19)

Writ petition dismissed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,974 of 44,081. This is a partial read: ask again with offset=39974 for what follows._

1206 INDIAN LAW REPORTS ALLAHABAD SERIES

The Bombay High Court in
High Court on its Own Motion v. State
of Maharashtra, 2017 Cr. LJ 218
(Bombay HC) observed as follows:

"14. A woman's decision to
terminate a pregnancy is not a frivolous
one. Abortion is often the only way out of a
very difficult situation for a woman. An
abortion is a carefully considered decision
taken by a woman who fears that the
welfare of the child she already has, and of
other members of the household that she is
obliged to care for with limited financial
and other resources, may be compromised
by the birth of another child. These are
decisions taken by responsible women who
have few other options. They are women
who would ideally have preferred to
prevent an unwanted pregnancy, but were
unable to do so. If a woman does not want
to continue with the pregnancy, then
forcing her to do so represents a
violation of the woman's bodily integrity
and aggravates her mental trauma which
would be deleterious to her mental
health"

(Emphasis Supplied)

20.
Denying
an
unmarried
woman the right to a safe abortion violates
her personal autonomy and freedom. Livein relationships have been recognized by
this Court. In S Khusboo v. Kanniammal,
(2010) 5 SCC 600 this Court observed that
criminal law should not be weaponized to
interfere with the domain of personal
autonomy.

21. On the above premises, we
are inclined to entertain the Special Leave
Petition. In the meantime, we are of the
view that allowing the petitioner to suffer
an unwanted pregnancy would be contrary
to the intent of the law enacted by
Parliament.
Moreover,
allowing
the
petitioner to terminate her pregnancy, on a
proper interpretation of the statute, prima
facie, falls within the ambit of the statute
and the petitioner should not be denied the
benefit on the ground that she is an
unmarried woman. The distinction between
a married and unmarried woman does not
bear a nexus to the basic purpose and
object which is sought to be achieved by
Parliament which is conveyed specifically
by the provisions of Explanation 1 to
Section 3 of the Act. The petitioner had
moved the High Court before she had
completed 24 weeks of pregnancy. The
delay in the judicial process cannot work to
her prejudice."

9. In the light of the aforesaid
statutory provisions and the judgments of
the Hon'ble Supreme Court, the petitioner
was entitled to get her pregnancy medically
terminated.
----------
(2023) 10 ILRA 1206
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.09.2023

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE SURENDRA SINGH-I, J.

Writ-C No. 42430 of 2014

Santosh Kumar Dohrey ...Petitioner
Versus
Pramukh
Sachiv
Nyay
Evam
Vidhi
Paramarshi U.P. Sachivalay Lucknow &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Akram Parvez Siddiqui, Sri Braj Mohan
Singh, Sri Harish Chandra Mishra, Sri
Narendra
Mohan
10 All. Santosh Kumar Dohrey Vs. Pramukh Sachiv Nyay Evam Vidhi Paramarshi U.P.
 Sachivalay Lucknow & Ors.
1207
Counsel for the Respondents:
C.S.C.

A. Service Law - Legal Remembrancer's
Manual - Criminal Procedure Code -
Section 24 - Termination of District
Government Counsel (Criminal) - No
notice and opportunity of hearing was
given - Effect - Renewal sought after
expiry of term - How far right accrue -
Held, appointment to the posts DGC (Crl)
by the State Government is a professional
engagement of an advocate. It is not a
civil post. The appointee does not have
any right for renewal or reappointment on
the post of D.G.C./A.D.G.C.(Crl.). Such
professional engagement can be terminated on
either
side
without
notice
and without
assigning any reason - By holding a post of
District Counsel or public prosecutor, no status
is conferred on the incumbent. The incumbent
has no legal enforceable right as such. (Para
19)

Writ petition dismissed. (E-1)

List of Cases cited:

1. Vijay Shankar Rastogi & ors. Vs St. of U.P. & ors.;
2013 (10) ADJ 97 (DB)

2. Shiv Sevak Ram Dwivedi Vs St. of U.P. & ors.; 2013
(6) ADJ 427 (DB)

3. Rajendra Prasad Sharma Vs St. of U.P. & ors.; 2014
(6) ADJ 329

4. Mewa Lal Vs St. of U.P.; 2002 2 UPLBEC 1012

5. St. of U.P. & anr. Vs Johri Mal; (2004) 4 SCC 714

6. St. of U.P. & ors. Vs Rakesh Kumar Keshari & anr.;
(2011) 5 SCC 341

7. St. of U.P. & ors. Vs Ajay Kumar Sharma & anr.;
2015 (4) Crimes (SC) 588

8. St. of U.P. Vs Ashok Kumar Nigam; (2013) 3 SCC
372

9. Misc. Bench No. 9127 of 2012; Ajay Kumar Sharma
& anr. Vs St. of U.P. & ors. decided on 10.07.2014
(Delivered by Hon'ble Surendra Singh-I, J.)

Heard learned counsel for the petitioner and
learned Standing Counsel for the Staterespondents.

2. This writ petition has been filed by the
petitioner against the order dated 30.07.2014
passed by respondent no. 4, District Magistrate,
Jhansi.

3. By the impugned order, the respondent
no. 4 ordered the petitioner that since his
engagement for working as Assistant
District Government Counsel (Criminal)
has expired on 29.07.2014, hence, he
should hand over the charge of aforesaid
post in the forenoon of 30.07.2014 to
District Government Counsel (Criminal).

4. Averment has been made that the
petitioner was engaged by the government
on
the
post
of
Assistant
District
Government Counsel (Criminal) vide G.O.
dated 09.09.2008 issued by the Deputy
Secretary, Government of U.P. till the
period of 02.09.2009. The petitioner
performed the duty of his post efficiently
and vide order dated 29.07.2011 passed by
Nyay Anubhag-3 (Niyuktiyan), he was
further engaged for 3 years or till the age of
superannuation of sixty years, whichever is
earlier. Before expiry of period of his reappointment, the petitioner on 17.04.2014
submitted application for renewal in
Proforma-9 to respondent no. 4, District
Magistrate, Jhansi. The District Judge,
Jhansi, vide letter no. 14/SAO/2014 dated
26.05.2014 forwarded his recommendation
to the respondent no. 4, District Magistrate,
Jhansi for renewal. On the basis of
recommendation of District Judge, Jhansi,
the respondent no. 4, District Magistrate,
Jhansi vide letter no. 1594/J.A.-29/2014-15
dated
09.06.2014
forwarded
his
1208 INDIAN LAW REPORTS ALLAHABAD SERIES
recommendation for renewal to Special
Secretary
(Legal
Remembrancer),
Government of U.P. The government has
not passed any order on the proposal for
renewal of his term because vide order
dated 10.07.2014, status quo order was
passed by Allahabad High Court, Lucknow
Bench.

5. The respondent no. 5, District
Government Counsel (Criminal), Jhansi
vide
letter
dated
30.07.2014
sought
guidance from the respondent no. 4,
District
Magistrate,
Jhansi
for
the
functioning of petitioner on the ground that
his tenure has expired on 29.07.2014 and
no renewal was done by the government.
An influential leader of the ruling party
sent
letter
dated
30.07.2014 to the
respondent no. 4, District Magistrate,
Jhansi, asking him to discharge the
petitioner from performing his duties as his
tenure has expired on 29.07.2014. The
respondent no. 4, District Magistrate,
Jhansi, has passed the impugned order
dated 30.07.2014 under the pressure of
aforesaid leader of the ruling party. The
petitioner submitted his representation to
the respondent no. 4 for withdrawing his
impugned order dated 30.07.2014 by which
he was relieved from performing his duties
on the post of A.D.G.C. (Crl.) but the
impugned order was not withdrawn. The
respondent no. 4 issued on 12.06.2014
advertisement for inviting application for
the post of Assistant District Government
Counsel (Criminal).

6. It has been submitted by learned
counsel
for
the
petitioner
that
the
respondent no. 4, District Magistrate,
Jhansi, has no authority to relieve him from
his post of A.D.G.C. (Crl.) since proposal
for renewal for his post is pending with the
government. Vide order dated 14.08.2014,
the Division Bench of Hon'ble High Court
suspended the impugned order dated
30.07.2014 passed by respondent no. 4 and
permitted the petitioner to continue on his
post and be paid salary/perks. It has been
next submitted that Hon'ble High Court in
Misc. Bench No. 9127 of 2012, Ajay
Kumar Sharma and another Vs. State of
U.P. and others, had directed the State
Government
to
maintain
status
quo
regarding the continuance of District
Government
Counsel
(Criminal).
Therefore, the impugned order passed by
respondent no. 4 being against the aforementioned stay order passed by the
Hon'ble High Court, is illegal and liable to
be quashed.

7. In the counter affidavit dated
09.10.2014 filed by the Additional Chief
Standing Counsel for the State-respondents,
it has been submitted that the respondent
no. 4 had no knowledge about the
impugned stay order passed by Hon'ble
High Court regarding continuance of
D.G.C.
(Crl.)/A.D.G.C.
(Crl.).
The
engagement of the petitioner had expired
on 29.07.2014 and, therefore, the impugned
order dated 30.07.2014 was passed by the
respondent no. 4. Since the respondent no.
4 became aware of the stay order passed
by the Hon'ble High Court, vide order
dated 15.09.2014, the respondent no. 4
withdrew
his
earlier
order
dated
30.07.2014
with
immediate
effect
treating the petitioner continuing as
Assistant District Government Counsel
(Criminal), Jhansi, till receipt of further
directions of the State Government. It
has been denied that the impugned
order was passed by the respondent no.
4 under the influence of letter dated
30.07.2014 issued by Dr. Chandrapal
Singh Yadav, National Treasurer of
Samajvadi Party.
10 All. Santosh Kumar Dohrey Vs. Pramukh Sachiv Nyay Evam Vidhi Paramarshi U.P.
 Sachivalay Lucknow & Ors.
1209

8. In his rejoinder affidavit dated
08.07.2015, the petitioner has admitted that
he was reinstated on his post of A.D.G.C.
(Crl.) in compliance of Hon'ble Court's
order dated 14.08.2014. It has also been
stated that the petitioner is the only
scheduled caste A.D.G.C. (Crl.) in District
& Sessions Court, Jhansi. The respondent
no. 5, D.G.C. (Crl.), Jhansi, Manish Yadav,
has enmity with the petitioner. The
petitioner was fatally attacked by Sanju
Yadav against whom he lodged first
information report and trial of the case is
pending in Sessions Court. The respondent
no. 5 had pressurized the petitioner to not
prosecute Sanju Yadav. On his refusal, he
became
hostile
towards
him.
Vide
amendment application dated 21.10.2020,
the petitioner has added paragraph no.
17(a) in his petition that the petitioner
being the only A.D.G.C. (Crl.) of scheduled
caste, his tenure be renewed under the
provisions of Uttar Pradesh (Reservation of
Scheduled Caste, Scheduled Tribes and
other
backward
classes)
Act,
1994
(hereinafter referred to as 'U.P. Act No. 4
of 1994')

9. It has been submitted by learned
counsel for the petitioner that since District
Judge, Jhansi, has given positive report
regarding his work, conduct and integrity,
the respondent no. 4, District Magistrate,
Jhansi, has recommended and forwarded
the proposal for his renewal but no order
has been passed by the government on his
representation. The petitioner is entitled for
renewal on the post of A.D.G.C. (Crl.). The
Court may direct the respondent no. 2 for
issuing order of renewal of the petitioner to
the above-mentioned post.

10. In support of his arguments,
learned counsel for the petitioner has
placed
reliance
on
the
following
judgements :-

(a) Vijay Shankar Rastogi and
others Vs. State of U.P. and others, 2013
(10) ADJ 97 (DB)

(b) Shiv Sevak Ram Dwivedi
Vs. State of U.P. and others, 2013 (6)
ADJ 427 (DB)

(c) Rajendra Prasad Sharma
Vs. State of U.P. and others, 2014 (6)
ADJ 329

(d) Mewa Lal Vs. State of U.P.,
2002 2 UPLBEC 1012

In the first three rulings of this
Hon'ble High Court, in the given facts and
circumstances of the case, the Hon'ble
High Court has directed the government to
consider the renewal application of the
petitioners in the light of the provisions
given in Section 24 of Cr.P.C. and Legal
Remembrancer's Manual. In the fourth
ruling, this High Court has held that the
provisions of U.P. Act No. 4 of 1994 is
applicable in the matter of professional
engagement and renewal of lawyers to the
post of District Government Counsel
(Criminal)
and
Assistant
District
Government Counsel (Criminal).

11.

Learned
Standing
Counsel
appearing for the State-respondents has
opposed the writ petition and has submitted
that the engagement of the petitioner on the
post of A.D.G.C. (Crl.) was for a limited
period and the stipulated period has
expired. The post of Assistant/District
Government Counsel (Criminal) is neither
public service nor it is permanent in nature.
The petitioner has no legal right for his
renewal on the post and the petition may be
rejected. He has placed reliance on the
1210 INDIAN LAW REPORTS ALLAHABAD SERIES
following judgements of Hon'ble Apex
Court :-

(a) State of U.P. and another
Vs. Johri Mal, (2004) 4 SCC 714

(b) State of U.P. and others Vs.
Rakesh Kumar Keshari and another,
(2011) 5 SCC 341

(c) State of U.P. and others Vs.
Ajay Kumar Sharma and another, 2015
4 Crimes (SC) 588

12.

The
provisions
regarding
appointment
of
District
Government
Counsel (Criminal) and Assistant District
Government Counsel (Criminal) has been
provided under Section 24 of the Code of
Criminal
Procedure
and
Legal
Remembrancer
Manual
(hereinafter
referred to as the 'L.R. Manual').

24. Public Prosecutors :-

(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 Prosecutors 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.

(7) A person shall be eligible to
be appointed as a Public Prosecutor or an
Additional 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
as a pleader, or has rendered (whether
before or after the commencement of this
Code) service as a Public Prosecutor or as
an
Additional
Public
Prosecutor
or
Assistant
Public
Prosecutor
or
other
Prosecuting Officer, by whatever name
called, shall be deemed to be the period
during which such person has been in
practice as an advocate.]

13. The provisions regarding status,
qualification, appointment and renewal of
District Government Counsel (Criminal)
and Assistant District Government Counsel
(Criminal) have been elaborated by the
three Judge Bench of Hon'ble Apex Court
in paragraph nos. 16, 17, 18, 19, 20 and 21
of the judgement in the case of Johri Mal
(supra) which are as follows :-

16.
Para
7.01
of
Legal
Remembrancer's
Manual
defines
the
District Government Counsel to mean legal
practitioners
appointed
by
the
State
Government to conduct in any court such
Civil, Criminal or revenue cases, as may be
assigned to them either generally, or
specially by the Government. The legal
practitioner appointed to conduct civil,
10 All. Santosh Kumar Dohrey Vs. Pramukh Sachiv Nyay Evam Vidhi Paramarshi U.P.
 Sachivalay Lucknow & Ors.
1211
criminal or revenue cases shall be known as
District
Government
Counsel
(Civil),
(Criminal) or (Revenue), as the case may
be.

17. Para 7.02 of the Manual lays
down the power of the Government to
appoint Government Counsel for each
district in the State. Para 7.03 provides that
whenever a post of any Government
Counsel is likely to fall vacant within the
next three months or when a new post is
created, the District Magistrate shall notify
the vacancies to the members of the Bar,
the
qualification
wherefor
would
be
practice of 10 years in case of District
Government Counsel, 7 years in case of
Assistant District Government Counsel and
5 years in case of Sub-District Government
Counsel. Clause (3) of Para 7.03 reads
thus:

"(3) The names so received shall
be considered by the District Officer in
consultation with the District Judge. The
District Officer shall give due weight to the
claim
of
the
existing
incumbents
[Additional/Assistant District Government
Counsel],
if
any,
and
shall
submit
confidentially in order of preference the
names of the legal practitioners for each
post to the Legal Rememberancer giving
his own opinion particularly about his
character,
professional
conduct
and
integrity and the opinion of the District
Judge on the suitability and merits, of each
candidate.
While
forwarding
his
recommendations
to
the
Legal
Rememberancer the District Officer shall
also send to him the bio data submitted by
other incumbents with such comments as
he and the District Judge may like to make.
In making the recommendations, the
proficiency of the candidate in civil or
criminal or revenue law, as the case may
be, as well as in Hindi shall particularly be
taken into consideration:

18. Para 7.04 of the said Manual
provides
that
on
receipt
of
the
recommendations of the District Officer,
the Legal Remembrancer may make further
enquiry and submit the recommendations
as also for orders of the State Government.
The decision of the State Government
would be final. Para 7.05 prohibits
canvassing by or on the part of a candidate
which would entail disqualification.

19. Paras 7.06, 7.07 and 7.08 read
thus:

"7.06.
Appointment
and
renewal-(1) The legal practioner finally
selected by the Government may be
appointed District Government Counsel for
one year from the date of his taking over
charge.

(2) At the end of the aforesaid
period, the District Officer after consulting
the District Judge shall submit a report on
his work and conduct to the Legal
Remembrancer together with the statement
of work done in Form no.9. Should his
work
or
conduct
be
found
to
be
unsatisfactory the matter shall be reported
to the Government for orders. If the report
in respect of his work and conduct is
satisfactory, he may be furnished with a
deed of engagement in Form no.1 for a
term not exceeding three years. On his first
engagement a copy of Form no.2 shall be
supplied to him and he shall complete and
return it to the Legal Remembrancer for
record.

(3) The appointment of any
legal
practitioner
as
a
District
Government Counsel is only professional
1212 INDIAN LAW REPORTS ALLAHABAD SERIES
engagement terminable at will on either
side and is not appointment to a post
under the Government. Accordingly the
Government reserves the power to
terminate
the
appointment
of
any
District Government Counsel at any time
without assigning any cause.

7.07. Political Activity - The
District Government Counsel shall not
participate in political activities so long
they work as such; otherwise they shall
incur a disqualification to hold the post.

Note: The term political activity
includes membership of any political party
or local body as also press reporting work.

7.08. Renewal of term: (1) At
least three months before the expiry of the
term of a District Government Counsel, the
District Officer shall after consulting the
District Judge and considering his past
record of work, conduct and age, report to
the Legal Remembrancer, together with the
statement of work done by him in Form
No. 9 whether in his opinion the term of
appointment of such counsel should be
renewed or not. A copy of the opinion of
the District Judge should also be sent along
with the recommendations of the District
Officer.

(2) Where recommendation for
the extension of the term of a District
Government Counsel is made for a
specified period only, the reasons therefor
shall also be stated by the District Officer.

(3)
While
forwarding
his
recommendation for renewal of the term of
a District Government Counsel -

(i) the District Judge shall give an
estimate of the quality of the Counsel's
work from the Judicial stand point, keeping
in view the different aspects of a lawyer's
capacity as it is manifested before him in
conducting State cases, and specially his
professional conduct;

(ii) the District Officer shall give
his report about the suitability of the
District Government Counsel from the
administrative point of view, his public
reputation
in
general,
his
character,
integrity and professional conduct.

(4) If the Government agrees
with the recommendations of the District
Officer for the renewal of the term of the
Government Counsel, it may pass orders
for re-appointing him for a period not
exceeding three years.

(5) If the Government decides
not to re- appoint a Government
Counsel, the Legal Remembrancer may
call upon the District Officer to forward
fresh recommendations in the manner
laid down in para 7.03.

(6) The procedure prescribed in
this para shall be followed on the expiry of
every
successive
period
of
renewed
appointment of a District Government
Counsel."

20. A supplementary provision
has been made in Chapter XXI of the
said LR Manual for appointment and
renewal of the post of public prosecutors.
It inter alia contains the guidelines and
clarifies that the appointment of DGC
(Criminal), the change of designation of
the public prosecutors could not effect
the basic nature of their professional
engagement. It further provides that
such
professional
engagement
is
terminated on either side without notice
and without assigning any reason. Paras
10 All. Santosh Kumar Dohrey Vs. Pramukh Sachiv Nyay Evam Vidhi Paramarshi U.P.
 Sachivalay Lucknow & Ors.
1213
21.07 and 21.08 of the said LR Manual
read as under:

"21.07. The appointment of
Public Prosecutor or Additional Public
Prosecutor shall be made for the period
of three years, but the State Government
can terminate such appointment at any
time
without
notice
and
without
assigning
any
reason.
The
State
Government may extend the period of
such appointment from time to time and
such extension of such term shall not be
treated as new appointment.

21.08. The District Magistrate
shall after consultation with the Sessions
Judge submit a confidential report in
respect of the Public Prosecutor and
Additional
Public
Prosecutors
giving
details about the percentage of success of
cases conducted by them and the general
reputation which they enjoy. Where the
percentage of success is low the reasons
given
by
the
Public
Prosecutor
or
Additional Public Prosecutor for the same
should also be commented on. After every
three years he shall make a special
assessment of each such Public Prosecutor
or
Additional
Public Prosecutor and
recommend whether the person concerned
should be granted extension for a further
term of three years or for a shorter term
only."

14. The Apex Court has discussed the
scope
of
judicial
review
against
administrative action such as appointment,
renewal of District Government Counsel
(Criminal)
and
Assistant
District
Government
Counsel
(Criminal)
in
paragraph nos. 22, 23, 24, 28, 29, 30, 36,
37, 40, 43, 44, 66, 67, 75 and 76 of the
judgement in the case of Johri Mal
(supra) which are as follows :-

22. The power of judicial review
is now well-defined in a series of decisions
of this Court. It is trite that the court will
have no jurisdiction to entertain a writ
application in a matter governed by
contract qua contract (assuming such
professional engagement to be one), as
therein public law element would not be
involved. (See Life Insurance Corporation
Vs. Escorts Ltd. and Ors. [AIR 1986 SC
1370], F.C.I. and Ors. Vs. Jagannath Dutta
and Ors., [AIR 1993 SC 1494], State of
Gujarat and Ors. Vs. Meghji Pethraj Shah
Charitable Trust and Ors., [(1994) 3 SCC
552], Assistant Excise Commissioner and
Ors. Vs. Issac Peter and Ors., (1994) 4 SCC
104], National Highway Authority of India
Vs. M/s. Ganga Enterprises & Anr. 2003
(7) SCALE 171).

23. In any event, the modern
trend also points to judicial restraint in
administrative action as has been held in
Tata Cellular Vs. Union of India [(1994) 6
SCC
651].
(See
also
Monarch
Infrastructure (P) Ltd. Vs. Commissioner,
Ulhasnagar Municipal Corporation and
Others [(2000) 5 SCC 287] and W.B. State
Electricity Board Vs. Patel Engineering Co.
Ltd. and Others [(2001) 2 SCC 451)]
and L.I.C.
and
Anr.
vs.
Consumer
Education and Research Centre and Ors.,
[AIR 1995 SC 1811].

24.
The legal right of an
individual may be founded upon a contract
or a statute or an instrument having the
force of law. For a public law remedy
enforceable under Article 226 of the
Constitution, the actions of the authority
need to fall in the realm of public law -be
it a legislative act or the State, an
executive act of the State or an
instrumentality or a person or authority
imbued with public law element. The
1214 INDIAN LAW REPORTS ALLAHABAD SERIES
question is required to be determined in
each case having regard to the nature of
and extent of authority vested in the
State. However, it may not be possible to
generalize the nature of the action which
would come either under public law
remedy or private law field nor is it
desirable to give exhaustive list of such
actions.

28. The scope and extent of
power of the judicial review of the High
Court contained in Article 226 of the
Constitution of India would vary from
case to case, the nature of the order, the
relevant statute as also the other relevant
factors including the nature of power
exercised by the public authorities,
namely, whether the power is statutory,
quasi judicial or administrative. The
power of judicial review is not intended
to assume a supervisory role or done the
robes of omnipresent. The power is not
intended either to review governance under
the rule of law nor do the courts step into
the areas exclusively reserved by the
suprema lex to the other organs of the
State. Decisions and actions which do not
have adjudicative disposition may not
strictly fall for consideration before a
judicial review court. The limited scope of
judicial review succinctly put are :

(i) Courts, while exercising the
power of judicial review, do not sit in
appeal over the decisions of administrative
bodies;

(ii) A petition for a judicial
review would lie only on certain welldefined grounds.

(iii) An order passed by an
administrative
authority
exercising
discretion vested in it, cannot be interfered
in judicial review unless it is shown that
exercise of discretion itself is perverse or
illegal.

(iv) A mere wrong decision
without anything more is not enough to
attract the power of judicial review; the
supervisory jurisdiction conferred on a
Court is limited to seeing that Tribunal
functions within the limits of its authority
and that its decisions do not occasion
miscarriage of justice.

(v) The Courts cannot be called
upon to undertake the Government duties
and functions. The Court shall not
ordinarily interfere with a policy decision
of the State. Social and economic belief of
a Judge should not be invoked as a
substitute
for
the
judgment
of
the
legislative bodies. (See Ira Munn Vs. State
of Ellinois, 1876 (94) US (Supreme
Reports) 113).

29. In Wade's Administrative
Law, 8th edition at pages 33-35, it is
stated:

"Review, Legality and discretion-
The system of judicial review is radically
different from the system of appeals. When
hearing an appeal the court is concerned
with the merits of a decision: is it
correct?
When
subjecting
some
administrative act or order to judicial
review, the court is concerned with its
legality: is it within the limits of the
powers granted? On an appeal the
question is 'right or wrong?' On review
the question is 'lawful or unlawful?'
Rights of appeal are always statutory.
Judicial review, on the other hand, is the
exercise of the court's inherent power to
determine whether action is lawful or not
and to award suitable relief. For this no
10 All. Santosh Kumar Dohrey Vs. Pramukh Sachiv Nyay Evam Vidhi Paramarshi U.P.
 Sachivalay Lucknow & Ors.
1215
statutory authority is necessary: the court is
simply performing its ordinary functions in
order to enforce the law.

Judicial
review
thus
is
a
fundamental mechanism for keeping public
authorities within due bounds and for
upholding the rule of law. Instead of
substituting its own decision for that of
some other body, as happens when on
appeal, the court on review is concerned
only with the question whether the act or
order under attack should be allowed to
stand or not.

30. It is well-settled that while
exercising the power of judicial review the
Court is more concerned with the decision
making process than the merit of the
decision itself. In doing so, it is often
argued by the defender of an impugned
decision that the Court is not competent to
exercise its power when there are serious
disputed questions of facts;......

36. A writ of or in the nature of
mandamus, it is trite, is ordinarily issued
where the petitioner establishes a legal
right in himself and a corresponding legal
duty in the public authorities.

37. The Legal Remembrancer
Manual clearly states that appointment
of a public prosecutor or a district
counsel would be professional in nature.
It is beyond any cavil and rightly
conceded at the Bar that the holder of an
office of the public prosecutor does not
hold a civil post. By holding a post of
district counsel or the public prosecutor,
neither a status is conferred on the
incumbent.

40. So long as in appointing a
counsel the procedures laid down under the
Code of Criminal Procedure are followed
and a reasonable or fair procedure is
adopted, the Court will normally not
interfere with the decision. The nature of
the office held by a lawyer vis-`-vis the
State being in the nature of professional
engagements, the courts are normally
charry to over-turn any decision unless an
exceptional case is made out. The question
as to whether the State is satisfied with the
performance of its counsel or not is
primarily a matter between it and the
counsel. The Code of Criminal Procedure
does not speak of renewal or extension of
tenure. The extension of tenure of public
prosecutor or the district counsel should not
be compared with the right of renewal
under a licence or permit granted under a
statute. The incumbent has no legal
enforceable right as such. The action of
the State in not renewing the tenure can
be subjected to judicial scrutiny inter
alia on the ground that the same is
arbitrary. The courts normally would
not delve into the records with a view to
ascertain as to what impelled the State
not to renew the tenure of a public
prosecutor or a district counsel.

43. The State, however, while
appointing a counsel must take into account
the following fundamental principles which
are required to be observed that good and
competent lawyers are required to be
appointed for (i) good administration of
justice; (ii) to fulfill its duty to uphold the
rule of law; (iii) its accountability to the
public; and (iv) expenditure from the tax
payers' money.

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
1216 INDIAN LAW REPORTS ALLAHABAD SERIES
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 people. Retention of its counsel by the
State must be weighed on the scale of
public interest.

66. In State of U.P. vs. Ramesh
Chandra Sharma and Others (1995) 6
SCC 527], Verma, CJ speaking for the
Bench opined : "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 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.

67. Another Bench of this Court
in Harpal Singh Chauhan and Others
etc. vs. State of U.P. [(1993) 3 SCC 552]
upon a detailed discussion of the relevant
provisions of the Legal Remembrancer
Manual as also sub-sections (4),(5) and
(6) of the Code of Criminal Procedure
opined :

"16.
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. But
merely because there is a provision for
extension or renewal of the term, the
same cannot be claimed as a matter of
right."

17. 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 the
fair
treatment
by
the
appointing
authority
or
that
the
procedure
prescribed
in the
Code and
in
the
Manual
aforesaid,
have
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."

75. 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
10 All. Santosh Kumar Dohrey Vs. Pramukh Sachiv Nyay Evam Vidhi Paramarshi U.P.
 Sachivalay Lucknow & Ors.
1217
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 act 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
de'hors the statute.

76. The appointment in such a
post must not be political one. The
Manual states that a political activity by
the District Government Counsel shall
be a disqualification to hold the post.

15. In paragraph no. 85 of the
judgement in the case of Johri Mal
(supra), the Apex Court has mentioned
about the reasons for consultation of
District Judge by the District Magistrate
before sending recommendation to the
government for appointment and renewal
of District Government Counsel (Criminal)
and Assistant District Government Counsel
(Criminal) which is as follows :-

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.

16. In the cases of Rakesh Kumar
Keshari
(supra)
and
Ajay
Kumar
Sharma (supra), the Apex Court has
reiterated the law propounded by it in Johri
Mal (supra).

17. In State of U.P. Vs. Ashok
Kumar Nigam, (2013) 3 SCC 372, the
Apex Court held that :

"There is 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.

(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 recommendation
made by District Judges and the District
Magistrates.

(21) In the premise aforesaid, the
appeal is allowed and the impugned order
(of High Court issuing a mandamus for
renewal of the terms of respondent nos. 1
and 2 and other similarly situated person) is
set-aside. The State Government shall now
fill up the existing vacant posts by
1218 INDIAN LAW REPORTS ALLAHABAD SERIES
considering the cases of all eligible persons
strictly in accordance with the relevant
provisions of the LR Manual read with
Section 24 Cr.P.C. and the judgements of
this Court in cases of Johri Mal (supra)
and Rakesh Kumar Keshari (supra). The
District Judges and 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 large candidates and
make recommendations, keeping in view
larger public interest in contradiction to the
interest of the particular political party."

18. In the light of above-mentioned
law propounded by the Apex Court, the
matter has to be discussed. The petitioner
was professionally engaged to act as
A.D.G.C. (Crl.), Jhansi vide G.O. dated
09.09.2008 issued by the Deputy Secretary,
Government of U.P. till the period of
02.09.2009. He was re-appointed from
29.07.2011 to 29.07.2014 for a period of 3
years. The petitioner applied on 17.04.2014
for renewal in Proforma No. 9 and his
application was forwarded by the District
Magistrate, Jhansi on 09.06.2014 with the
recommendation of District Judge, Jhansi
dated 26.05.2014. In between, he was
removed from the post vide impugned
order dated 30.07.2014 passed by the
District Magistrate, Jhansi. The aforesaid
order of the District Magistrate, Jhansi was
suspended by the order of Hon'ble High
Court dated 14.08.2014. Later on, the
District Magistrate, Jhansi vide letter dated
15.09.2014 withdrew the aforesaid order
relieving the petitioner from the post of
Assistant District Government Counsel
(Criminal).

19. From the above discussion of the
provisions regarding appointment of the
District Government Counsel (Criminal)/
Assistant District Government Counsel
(Criminal) as given in L.R. Manual,
Section 24 Cr.P.C.