# Shyam Narayan Yadav v. State of U.P. & Anr

- **Citation:** (2020) 9 ILRA 773
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-29
- **Case number:** WRIT - C No. 62727 of 2017
- **Bench:** Bala Krishna Narayana, Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-narayan-yadav-v-state-of-u-p-anr-46077
- **Pages:** 9

## Headnote

(A) Civil Law - Legal Remembrancer
Manual - clause 7.06 - Engangement and
renewal , clause 7.07 - Political Activity ,
clause
7.08
-
Renewal
of
duration-
appointment
of
Government
Law
Officers/Counsel/Pleader - it is the duty
of the Government to act in a fair,
reasonable, objective and in a nondiscriminative manner -action of the State
Government
in
the
matter
of
such
contractual appointments can be tested by
way of judicial review - no lawyer has any
vested right to be reappointed or to get
his
term
renewed
as
a
District
Government Counsel/Additional District
Government Counsel as a matter of right
even though his integrity and work may
be reported to be good and that the
opinion of the District Judge will have
supremacy - Arbitrariness shall vitiate the
administrative order.(Para - 14,15,19)

Petitioner initially appointed on the post of
Assistant District Government Counsel (Criminal)
- post of District Government Counsel (Criminal)
fell vacant - petitioner duly applied for the post -
term was going to expire - applied for renewal -
respondent no.1(District magistrate ) refused to
renewal the term of the petitioner on the post of
District Government Counsel (Criminal) without
assigning
any
reasons
as
to
why
the
recommendations made by the District Judge
was not accepted - impugned order does not
record any such satisfaction and the entitlement
of the petitioner does not appear to have been
considered in the light of the provisions of Legal
Remembrancer's Manual as also the decisions
referred to herein-above. (Para-3,6,32)

HELD:- Impugned order dated 27.10.2017
passed by the respondent no.1 is set aside and
the
consequential
communication
dated
1.11.2017 is also set aside. However, this order
would not amount to re-engagement of the
petitioner or his continuance. Matter shall be
decided afresh keeping in view the observations
made as well as the provisions of Legal
Remembrancer's Manual within a period of four
months. (Para-32,33)

Petition allowed. (E-7)

List of Cases cited: -

## Text

9 All. Shyam Narayan Yadav Vs. State of U.P. & Anr.
773
authority of the Central Government shall
look into the grievance of the petitioner
raised in the representation and shall
dispose of the same as expeditiously as
possible within a further period of eight
weeks.

15. We may further clarify that any
order shall be passed only in accordance
with law addressing the grievance of the
petitioner and the order shall be reasoned
and
speaking
one
and
with
due
consideration of relevant laws discussed
hereinabove.
----------
(2020)09ILR A773
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.04.2020

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE PRAKASH PADIA, J.

WRIT - C No. 62727 of 2017

Shyam Narayan Yadav ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Nand Kishore Singh, Sri Kunal Shah, Sri
Rahul Agarwal

Counsel for the Respondents:
C.S.C.

(A) Civil Law - Legal Remembrancer
Manual - clause 7.06 - Engangement and
renewal , clause 7.07 - Political Activity ,
clause
7.08
-
Renewal
of
duration-
appointment
of
Government
Law
Officers/Counsel/Pleader - it is the duty
of the Government to act in a fair,
reasonable, objective and in a nondiscriminative manner -action of the State
Government
in
the
matter
of
such
contractual appointments can be tested by
way of judicial review - no lawyer has any
vested right to be reappointed or to get
his
term
renewed
as
a
District
Government Counsel/Additional District
Government Counsel as a matter of right
even though his integrity and work may
be reported to be good and that the
opinion of the District Judge will have
supremacy - Arbitrariness shall vitiate the
administrative order.(Para - 14,15,19)

Petitioner initially appointed on the post of
Assistant District Government Counsel (Criminal)
- post of District Government Counsel (Criminal)
fell vacant - petitioner duly applied for the post -
term was going to expire - applied for renewal -
respondent no.1(District magistrate ) refused to
renewal the term of the petitioner on the post of
District Government Counsel (Criminal) without
assigning
any
reasons
as
to
why
the
recommendations made by the District Judge
was not accepted - impugned order does not
record any such satisfaction and the entitlement
of the petitioner does not appear to have been
considered in the light of the provisions of Legal
Remembrancer's Manual as also the decisions
referred to herein-above. (Para-3,6,32)

HELD:- Impugned order dated 27.10.2017
passed by the respondent no.1 is set aside and
the
consequential
communication
dated
1.11.2017 is also set aside. However, this order
would not amount to re-engagement of the
petitioner or his continuance. Matter shall be
decided afresh keeping in view the observations
made as well as the provisions of Legal
Remembrancer's Manual within a period of four
months. (Para-32,33)

Petition allowed. (E-7)

List of Cases cited: -

1. Kumari Shrilekha Vidyarthi Vs St. of U.P. &
ors. , AIR 1991 SC 537

2. Virendra Pal Singh Rana Vs St. of U.P. & ors.,
(2003) 52 ALR 302

3. St. of U.P. & ors. Vs Ashok Kumar Nigam,
(2013) 3 SCC 372
774 INDIAN LAW REPORTS ALLAHABAD SERIES
4. St. of Punj. & anr. Vs Brijeshwar Singh Chahal
& ors. (2016) 6 SCC 1

5. Breen Vs Amalgamated Engg. Union, 1971(1)
AIIER 1148

6.
Alexander
Machinery
(Dudley)
Ltd.Vs
Crabtress, 1974(4) IRC 120

7. (NIRC) S G Jaisinghani Vs UOI , AIR 1967 SC
1427

8. E. P. Royappa Vs St. of TM & anr., (1974) 4
SCC 3

9. Maneka Gandhi Vs UOI, (1978) 2 SCR 621,
10. Ramana Shetty Vs International Airport
Authority, (1979) 3 SCC 489

11. D.S. Nakra Vs UOI, (1983) 1 SCC 305

12. Dwarkadas Marfatia Vs. Board of Trustees of
the port of Bombay, (1989) 3 SCC 293

13. Som Raj & ors. Vs St. of Har. & ors. , (1990)
2 SCC 653,

14. Neelima Misra Vs Harinder Kaur Paintal &
ors. (1990) 2 SCC 746 and

15. Sharma Transport Vs Govt. of A.P & ors.
(2002) 2 SCC 188

16. Assistant Commissioner, Commercial Tax
Department, Works Contract and Leasing, Kota
Vs M/s Shukla & Bros., 2010 AIR SCW 3277

17. S.N. Mukherjee Vs UOI, (1990) 4 SCC 594

(Delivered by Hon'ble Prakash Padia, J.)

1. Heard Sri Kunal Shah, learned
counsel for the petitioner and Sri Neeraj
Tripathi, learned Additional Advocate
General assisted by Sri Shashank Shekhar
Singh, learned Additional Chief Standing
Counsel on behalf of State.

2. The petitioner has preferred the
present writ petition with the prayer to
quash the orders dated 27.10.2017 passed
by the respondent no.1/Principal Secretary,
Nyaya Anubhag-3, (Niyuktia), Government
of U.P., Lucknow, order dated 1.11.2017 as
well as notification dated 8.12.2017 issued
by the respondent no.2 namely District
Magistrate, Ballia, District-Ballia.

3. The facts in brief as contained in
the writ petition are that the petitioner was
initially appointed on the post of Assistant
District Government Counsel (Criminal) in
the year 1999 and he continued to perform
as such upto 27.5.2014 and renewals were
also granted to him after considering his
work, conduct, performance and legal
knowledge.
The
post
of
District
Government Counsel (Criminal) in District
Judgeship, Ballia fell vacant in the year
2013. In order to engage or select the
Advocates having requisite qualifications
and the experience on the said post, the
State Government issued a Government
Order dated 4.6.2014. Pursuant to the same
a notification dated 16.6.2014 was issued
by the respondent no.2. Pursuant to the
same petitioner duly applied for the post in
question, thereafter, a panel was prepared
by the respondent no.2 in which name of
the petitioner found place at serial no.1.
The aforesaid penal was prepared after due
consultation with the District Judge, Ballia.
Thereafter, respondent no.2 forwarded the
application of the petitioner along-with the
comments to the respondent no.1 and
respondent
no.1
vide
Order
dated
25.4.2016 appointed the petitioner on the
post in question for one year, i.e., upto
24.4.2017. Before the aforesaid term was
going to expire an application was
submitted by the petitioner before the
respondent no.2 for renewal of his term. He
forwarded the same before the respondent
no.1 for the grant of renewal in terms of the
relevant rules. The respondent no.1 vide its
order dated 27.10.2017 rejected the renewal
9 All. Shyam Narayan Yadav Vs. State of U.P. & Anr.
775
application of the petitioner. Pursuant to the
same,
respondent
no.2
passed
consequential
order
dated
1.11.2017
directing the petitioner to hand over the
charge to Additional District Government
Counsel (Criminal). Subsequently, another
notification was issued by the respondent
no.2 on 8.12.2017 inviting applications
from the Advocates for their engagement as
Additional District Government Counsel
(Criminal). The petitioner has preferred the
present writ petition challenging the
aforesaid orders.

4. The appointment and conditions of
engagement of a counsel on the post of
Additional District Government Counsel
(Criminal) are governed by the provisions
of Legal Remembrancer's Manual. In
paragraph 7.08 of the manual it is provided
that the District Officer will forward his
recommendations after seeking the estimate
of the quality of the counsel's work from
the judicial stand point, keeping in view his
public reputation in general, his character,
integrity and professional conduct.

5. It is stated in paragraph 14 of the
writ petition that in so far as the case of the
petitioner is concerned, the District Officer
as
well
as
the
District
Judge
has
appreciated the quality of work of the
petitioner
including
his
knowledge,
professional conduct and public reputation.

6. The basic ground, which was taken
by the counsel for the petitioner in the writ
petition that the refusal to renewal the term
of the petitioner on the post of District
Government
Counsel
(Criminal)
was
passed by the respondent no.1 without
assigning any reasons as to why the
recommendations made by the District
Judge was not accepted. It is argued that
the respondent no.1 passed the order
without application of mind. It is further
argued that the quality or capability of the
petitioner in extending such an assistance
has been appreciated by the District Judge,
Ballia and therefore, there is no reason to
refuse the renewal of the tenure of the
petitioner for the said post.

7. In the counter affidavit filed on
behalf of respondent no.1 it is stated that
the
District
Government
Counsel
(Criminal) does not enjoy any statutory
right in respect to the renewal of the tenure.
The
State
Government
enjoyed
the
discretionary power in this regard. It is
further argued on behalf of respondents that
the renewal is not the indefeasible right of
the Advocates as District Government
Counsel (Criminal) and it is for the State
Government to consider to appoint as
District Government Counsel (Criminal) or
not. Various judgements were cited in the
counter affidavit.

8. In rejoinder affidavit filed on
behalf of petitioner it is contented that
though it is true that the Advocates have no
indefeasible rights for appointment on the
post of District Government Counsel
(Criminal) but while ignoring the cases for
renewal, the procedure given in the manual
should be followed. It is further stated in
the rejoinder affidavit that the order was
passed by the respondent no.1 without
assigning any reasons whatsoever and as
such the order passed by the respondent
no.1 is liable to be set aside.

9. Heard learned counsel for the
parties. With the consent of learned counsel
for the parties, the writ petition is being
disposed of finally.

10. Apart from various arguments, the
basic argument which was advanced by the
776 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel for the petitioner is that the order
impugned does not assign any reason for
refusing to renew the term of the petitioner.
The State Government cannot act in an
unfair and unreasonable manner. Even in
the matters of contractual appointment the
provisions of the LR Manual should have
been followed.

11. In the matter of taking service of
lawyers as District Government Counsel,
way back in AIR 1991 SC 537 Kumari
Shrilekha Vidyarthi Vs. State of U.P. and
others, it was laid down that the District
Government Counsel cannot be removed en
bloc in an arbitrary manner and, as such,
the removal can be tested on the anvil of
Article 14 of the Constitution even if they
happen to be contractual in nature.

12. A Division Bench of this Court in
Virendra Pal Singh Rana Vs. State of U.P.
and others 2003 (52) ALR 302 observed
that competent lawyers of integrity and
sound knowledge of law ought to be
appointed as District Government Counsel
after consulting the District Judge whose
opinion would prevail over that of the
District Magistrate.

13. In State of U.P. and others Vs.
Ashok Kumar Nigam 2013 (3) SCC 372,
in the matter of appointment of District
Government Counsel, it was held that the
renewal of the term depends upon the age,
continuous good work, sound integrity and
physical fitness of the counsel and that no
counsel has any right to appointment even
up to the age of 60 years irrespective of
work, conduct and integrity.

14. The latest decision on the point is
that of State of Punjab and another Vs.
Brijeshwar Singh Chahal and others 2016
(6) SCC 1 wherein it has been laid down
that in the expanding horizon of the
jurisprudence the executive power is
exercisable not only as per rule of law but
according to public trust doctrine. Thus, in
the manner of appointment of Government
Law Officers/Counsel/Pleader it is the duty
of the Government to act in a fair,
reasonable,
objective
and
in
a
non
discriminative manner and that the action
of the State Government in the matter of
such contractual appointments can be tested
by way of judicial review. It was also
observed that the Government and the
Government bodies are free to choose the
method of selection but the method should
be such as to search out the meritorious
ones
uninfluenced
by
extraneous
considerations.

15. In view of the aforesaid decisions,
one thing is clear that no lawyer has any
vested right to be reappointed or to get his
term renewed as a District Government
Counsel/Additional District Government
Counsel as a matter of right even though
his integrity and work may be reported to
be good and that the opinion of the District
Judge will have supremacy.

16. In the case before us, we are not
concerned with the matter of appointment
of
District
Government
Counsel/
Additional District Government Counsel,
rather with the renewal of their term for
which purpose clause 7.06 to 7.08 of the
LR Manual is material which reads as
under:

"7.06.
Engangement
and
renewal- (1) The legal practitioner finally
selected by 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
9 All. Shyam Narayan Yadav Vs. State of U.P. & Anr.
777
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 engangement of any legal
practitioner as a District Government
Counsel is only professional 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.

7.08 Renewal of duration

1. Collector after consulting with
the District Judge, shall send the report
regarding past work, conduct and income
of the District Govt. Counsel and the work
done by him in Form 9 at least 3 months
prior to expiry his tenure to the Legal
Remembrancer with the opinion that
whether tenure of such advocate be
extended or not? Along with the report of
Collector, a copy of the opinion of District
Judge shall also be send.

2. In case recommendation for
extending tenure of District Govt. Counsel
is made for any specified period, then such
reasons shall also be mention by the
Collector.

3. For the renewal of tenure of
District Govt. Counsel, while sending his
recommendation

(1) Collector shall consider the
various aspect of capacity of a Advocate,
from the judicial view, shall mentioned the
work of the Advocate, merits, which would
visible while operating before him the
cases of State.

(2) Collector, shall give the
report of the applicability of the govt.
counsel from an administrative prospective
and shall mentioned in its about the fame in
the general public, his conduct, integrity
and professional conduct.

4. In case Legal Remembrancer is
agree with the certificate given by the
Collector and District Judge regarding
good hard work and integrity and this
recommendation that the tenure of the
Govt. Counsel shall be renewed, then for
extending his tenure once for more than 3
years, shall got the order from govt. but
renewal of tenure shall not be the right of
any Advocate and govt. shall have liberty
to remove any of the Advocate at any time
without assigning any reason.

5.
If,
in
any
case
Legal
Remembrancer is not agree with the
recommendation made by the Collector
regarding renewal of the tenure of govt.
Counsel then he shall submit the case to the
Govt. for order. In case Govt. decide not to
reappoint any Govt. Advocate then Legal
Remembrancer shall request the Collector
to send the new recommendation as per
the
rule
given
in
Para
7.03."
(emphasis supplied)

17. Since no reasons were assigned by
the State Government while rejecting the
renewal of engagement of the petitioner on
the post of Assistant District Government
778 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel (Criminal), the records were
summoned from the State Government.
The original records were placed by the
learned counsel for the respondents before
the Court. The records produced did not
show proper consideration by the State
Government before refusing to grant
renewal of the term of the petitioner. It is
further clear from perusal of the records
that the State Government had taken enblock decision that the renewal in the case
of such Government Counsel whose terms
have come to an end will not be granted. It
was pursuant to this decision that the
Government refuse to grant renewal.

18. We have examined the records
and after being satisfied that the record
produced did not exhibit proper application
of mind or due consideration as provided
under law and there is nothing on record
placed before the Court by the respondents
that could demonstrate that the order was
passed after taking into consideration any
material
on
record.
The
prescribed
procedure under para 7.08 of the manual
requires the Government to invite the
opinion of the District Judge and District
Officer three months prior to the expiry of
the
term
of
the
Assistant
District
Government Counsel (Criminal). As per
prescribed procedure the office of the Legal
Remembrance was expected to consider the
past record of work and conduct of the
District Government Counsel, concerned
and then to send a report together with the
statement of work done by such applicant.

19. Total non-application of mind and
the order being supported by no reason
whatsoever would render the order passed
as ''arbitrary'. Arbitrariness shall vitiate the
administrative order. The rules provide a
procedure and even require the State
Government to consider the case for
renewal of the government counsel whose
term is coming to an end. The scheme of
para 7.06 of the Manual is that appointment
of a government pleader is to be made for a
period of one year and at the end of the
period, the District Officer in consultation
with the District Judge is required to submit
a report on the work and conduct to the
legal remembrancer together with the work
done in Form

9. It is only when his work or
conduct is found to be unsatisfactory that it
is so reported to the government for
appropriate
orders.
If
the
report
is
satisfactory, the rule requires that he may
be furnished with a deed of engagement in
form I, for a term not exceeding three
years, on his first engagement.

20. In terms of para 7.06 (3), the
Government
reserves
the
power
to
terminate the appointment of any District
Government Counsel at any time without
assigning any cause. Firstly, one has to
examine the entire scheme of para 7.06 (3).
It cannot be read in isolation. The right of
consideration for renewal for the specified
period is a legitimate right vested in an
applicant and he can be deprived of such
right and be declined renewal where his
work is unsatisfactory and is so reported by
the specified authorities. It is difficult to
comprehend that clause (3) of para 7.06 can
be enforced in the manner as suggested. If
it is construed, as suggested, that the
government has an absolute right to
terminate the appointment at any time
without specifying any reason, it will be
violative of Articles 14 and 16 of the
Constitution of India and such rule shall be
arbitrary, thus not sustainable in law.

21. In Breen Vs. Amalgamated Engg.
Union, reported in 1971(1) AIIER 1148, it
9 All. Shyam Narayan Yadav Vs. State of U.P. & Anr.
779
was held that the giving of reasons is one of
the fundamentals of good administration. In
Alexander Machinery (Dudley) Ltd.Vs.
Crabtress, reported in 1974(4) IRC 120
(NIRC) it was observed that "failure to give
reasons amounts to denial of justice.
Reasons are live links between the mind of
the decision taker to the controversy in
question and the decision or conclusion
arrived at".

22. In S G Jaisinghani v. Union of
India reported in AIR 1967 SC 1427,
Supreme Court held that absence of
arbitrary power is the first essential of
"Rule of Law" upon which rests our
Constitutional system. The Supreme Court
ruled that in a system governed by rule of
law, any discretion conferred upon the
executive authorities must be confined
within clearly defined limits. The Supreme
Court quoted with approval, the following
observations of Douglas J. in United States
vs. Wunderlick 1951 342 US 98:96 Law Ed
113:

"Law has reached its finest
moments when it has freed man from the
unlimited discretion of some ruler... Where
discretion is absolute, man has always
suffered." (Wunderlich case, SCC Online
US SC para 9).

23. The same view was again taken
by the Supreme Court in the case of E. P.
Royappa v. State of Tamil Nadu and Anr.
(1974) 4 SCC 3 wherein the Supreme Court
declared that Article 14 is the genus while
Article 16 is a specie and the basic
principle which informs both these Articles
is
equality
and
inhibition
against
discrimination. Equality, declared this
Court, was antithetic to arbitrariness. The
Court described equality and arbitrariness
as sworn enemies, one belonging to the rule
of law in a republic and the other to the
whims and caprice of an absolute monarch.
Resultantly if an act is found to be
arbitrary, it is implicit that it is unequal
both according to political logic and
constitutional law, hence violative of
Article 14 and if it affects any matter of
public employment it is also violative of
Article 16. Supreme Court reiterated that
Articles 14 and 16 strike at arbitrariness in
State action and ensure fairness and
inequality of treatment.

24. The Supreme Court in the case of
Maneka Gandhi v. Union of India
reported in (1978) 2 SCR 621, wherein
Supreme Court held that the principle of
reasonableness
both
legally
and
philosophically is an essential element of
equality and that non-arbitrariness pervades
Article 14 with brooding omnipresence.
This implies that wherever there is
arbitrariness in State action whether, it be
legislative or executive Article 14 would
spring into action and strike the same
down. This Court held, that the concept of
reasonableness
and
non-arbitrariness
pervades the constitutional scheme and is a
golden thread, which runs through the
entire Constitution.

25.

In
Ramana
Shetty
v.
International Airport Authority reported in
1979 (3) SCC 489, Supreme Court relying
upon the pronouncements of E.P. Royappa
and Maneka Gandhi (supra) once again
declared that state action must not be
guided
by
extraneous
or
irrelevant
considerations because that would be denial
of equality. The Supreme Court recognized
that principles of reasonableness and
rationality
are
legally
as
well
as
philosophically
essential
elements
of
equality and non-arbitrariness as projected
by Article 14, whether it be authority of
780 INDIAN LAW REPORTS ALLAHABAD SERIES
law or exercise of executive power without
the making of a law. The Supreme Court
held that State cannot act arbitrarily in the
matter of entering into relationships be it
contractual or otherwise with a third party
and its action must conform to some
standard or norm, which is in itself rational
and non-discriminatory.

26. In D.S. Nakra v. Union of India
reported in 1983 (1) SCC 305, the Supreme
Court reviewed the earlier pronouncements
and while affirming and explaining the same
held that it must now be taken to be settled
that what Article 14 strikes at is arbitrariness
and that any action that is arbitrary must
necessarily involve negation of equality.

27. In Dwarkadas Marfatia v. Board
of Trustees of the port of Bombay 1989 (3)
SCC 293, the Supreme Court again an
occasion to examine whether Article 14
had any application to contractual matters.
This court declared that every action of the
state or an instrumentality of the State must
be informed by reason and actions that are
not so informed can be questioned under
Articles 226 and 32 of the Constitution.

28. Similar view was again taken by
the Supreme Court in the case Som Raj &
Ors. v. State of Haryana & Ors. reported
in (1990) 2 SCC 653, Neelima Misra v.
Harinder Kaur Paintal & Ors. reported in
(1990) 2 SCC 746 and Sharma Transport
v. Government of A.P & Ors. Reported in
(2002) 2 SCC 188 have simply followed,
reiterated and applied the principles settled
by the pronouncements in the earlier
mentioned cases.

29. The Supreme Court in case of
Assistant Commissioner, Commercial Tax
Department, Works Contract and Leasing,
Kota Vs. M/s Shukla and Brothers
reported at 2010 AIR SCW 3277 dealt with
the principles of law while exercising
power of judicial review on administrative
action. It was held by the Supreme Court in
the aforesaid case that the doctrine of audi
alteram partem has three basic essentials-

i) A person against whom an
order is required to be passed or whose
rights are likely to be affected adversely
must be granted an opportunity of being
heard.

ii)
The
concerned
authority
should provide a fair and transparent
procedure.

iii) The authority concerned must
apply its mind and dispose of the matter by
a reasoned or speaking order.

Paragraph 9 of the aforesaid
judgment is quoted below-

"9. The increasing institution of
cases in all Courts in India and its
resultant burden upon the Courts has
invited attention of all concerned in the
justice
administration
system.
Despite
heavy quantum of cases in Courts, in our
view, it would neither be permissible nor
possible to state as a principle of law, that
while exercising power of judicial review
on
administrative
action
and
more
particularly judgment of courts in appeal
before the higher Court, providing of
reasons can never be dispensed with. The
doctrine of audi alteram partem has three
basic essentials. Firstly, a person against
whom an order is required to be passed or
whose rights are likely to be affected
adversely must be granted an opportunity
of being heard. Secondly, the concerned
authority should provide a fair and
transparent procedure and lastly, the
authority concerned must apply its mind
and dispose of the matter by a reasoned or
speaking order. This has been uniformly
applied by courts in India and abroad."
9 All. Suraj & Ors. Vs. State of U.P.
781

30. In the case of S.N. Mukherjee v.
Union of India reported in 1990 (4) SCC
594 while referring to the practice adopted
and insistence placed by the courts in
United States, emphasised the importance
of recording of reasons for decisions by the
administrative authorities and tribunals. It
said "administrative process will best be
vindicated by clarity in its exercise". To
enable the courts to exercise the power of
review
in
consonance
with
settled
principles, the authorities are advised of the
considerations underlining the action under
review.

31. In paragraph 12 of the aforesaid
judgment the scope of judicial review has
been dealt with in great detailed. The
paragraph 12 is quoted hereinbelow :-

"12. In exercise of the power of
judicial review, the concept of reasoned
orders/actions has been enforced equally
by the foreign courts as by the courts in
India. The administrative authority and
tribunals are obliged to give reasons,
absence whereof could render the order
liable to judicial chastisement. Thus, it will
not be far from an absolute principle of law
that the courts should record reasons for
their conclusions to enable the appellate or
higher courts to exercise their jurisdiction
appropriately and in accordance with law.
It is the reasoning alone, that can enable a
higher or an appellate court to appreciate
the controversy in issue in its correct
perspective and to hold whether the
reasoning recorded by the court whose
order is impugned, is sustainable in law
and whether it has adopted the correct
legal approach. To subserve the purpose of
justice delivery system, therefore, it is
essential that the courts should record
reasons for their conclusions, whether
disposing of the case at admission stage or
after regular hearing."

32. Having heard learned counsel for
the parties, we are satisfied that the
impugned order does not record any such
satisfaction and the entitlement of the
petitioner does not appear to have been
considered in the light of the provisions of
Legal Remembrancer's Manual as also the
decisions referred to herein-above.

33. Accordingly, the impugned order
dated 27.10.2017 passed by the respondent
no.1 is set aside and the consequential
communication dated 1.11.2017 is also set
aside. However, this order would not
amount to re-engagement of the petitioner
or his continuance. The matter shall be
decided afresh keeping in view the
observations made hereinabove as well as
the provisions of Legal Remembrancer's
Manual within a period of four months
from the date of production of certified
copy of this order.

34. Accordingly, present writ petition
is allowed.
----------
(2020)09ILR A781
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.09.2019

BEFORE

THE HON'BLE B.AMIT STHALEKAR, J.
THE HON'BLE SHEKHAR KUMAR YADAV, J.

Criminal Misc. Bail Application No. 01 of 2019
In
Criminal Appeal No.3319 of 2019

Suraj & Ors. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party