# KUMARI SHRILEKHA VtDY ARTHI ETC. ETC v. STATE OF U.P. AND ORS

- **Citation:** [1990] Supp. 1 S.C.R. 625
- **Court:** Supreme Court of India
- **Decided:** 1990-09-20
- **Case number:** Writ Petition No. 706 of 1990
- **Bench:** J.S. Verma, R.M. Saha!
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kumari-shrilekha-vtdy-arthi-etc-etc-v-state-of-u-p-and-ors-10965
- **Pages:** 37

## Headnote

Constitution of India, 1950: Article 14-Requirement of fairness
in State action-Arbitrariness very negation of rule of law-Contractual
obligation cannot divest state of fairness in its action.
A
·a
The writ petitioners/appellants had been appointed as Govern• C
ment Counsel (Civii, Criminal, Revenue) by the State of U.P. By its
circular dated 6.2.1990 the State terminated the appointment of ail
Government Counsel with effect from 28.2.1990 irrespective of the fad
whether the term of the incumbent had expired or Was subsisting. At
the s~me time the Government directed preparation of fresh panels to
make appointments in place of existing incumbents. The appellants b
chaiienged the validity of this· State action, which Was rejected by the
High Court.
Before this Court it was contended inter alia on behalf of the
petitioners/appellants that the relationship of the Government Counsel
with the Government was not mereJy one of client and counsei as in the
E
case of a private client, but one of status in the nature of public employ•
ment or appointment to a 'public office' so that termination of the
appointment of a Government Counsel couid not be equated with the
termination by a private litigant of his Counsel's engagement, which
was purely contractual, without any public element attaching to it.
,
F
On behaif of the State it was urged that: (i) the relationship of the
appointees to these offices of Government Counsel in the districts was
purely contractual dependin,ll on the terms of the contract and was in
the nature of an engagement of a Counsel by a private party who could
be changed at any time at the will of the litigant, with there being no
right in the counsel to insist on continuance of the engagement; (ii) there
d
was. no element of public employment in such appointments and the
provisions in the Legal Remembrancer's Manual and Section 24 of the
Code of Criminal Procedure were merely to provide for making a suit•
able choice; (iii) the appointment of a District Government Counsel was
only professional engagement terminable at will on ~ither side and not
appointment to a post under the Government; and the Governm·eni had
H
625
626
SUPREME COURT REPORTS
[1990] Supp. I S.C.R.
A
the power to terminate the appointment at any time 'without assigning
any cause' and hence this circular did not suffer from the vice of
arbitrariness.
B
c
D
E
F
G
H
Allowing the writ petitions and the appeals, this Court,
HELD: (I) The provisions in the Legal Remembrancer's Manual
clearly show that the Government Counsel in the districts are treated as
law Officers of the State who are holders of an 'office' or 'post'. These
provisions further indicate that the appointment and engagement of
District Government Counsel is not the same as that by a private litigant of his counsel and there is obviously an element of continuity of the
appointment unless the appointee is found to be unsuitable either by his
own work, conduct or age or in comparison to any more s.uitable candidate available at the place of appointment.
(2) All Government Counsel are paid remuneration out of the
public exchequer and there is a clear public element attaching to the
'office' or 'post'.
(3) Clause 3 of para 7.06 of the L.R: Manual which enables the
Government to terminate the appointment 'at any time without assigning any cause' merely means that the termination may be made even
during the subsistence of the term of appointment, and the expression
'without assigning any cause' means without communicating any cause
to the appointee whose appointment is tertitlnated.
(4) The non-assigning of reasons or the non-communication
thereof may be based on public policy, but termination of an appointment without the existence of any cogent reason in furtherance of the
object for which the power is given would be arbitrary and, therefore,
against public policy.
Liberty Oil Mills v. Union of India, [1984] 3 SCC 465, referred
to.
(5) In the case of Public Prosecutors, the public element fl

## Text

_Characters 0–39,840 of 92,414. This is a partial read: ask again with offset=39840 for what follows._

KUMAR! SHRILEKHA VtDY ARTHI ETC. ETC,
v.
STATE OF U.P. AND ORS.
SEPTEMBER 20, 1990
[J.S. VERMA AND R.M. SAHA!, jJ.)
Constitution of India, 1950: Article 14-Requirement of fairness
in State action-Arbitrariness very negation of rule of law-Contractual
obligation cannot divest state of fairness in its action.
A
·a
The writ petitioners/appellants had been appointed as Govern• C
ment Counsel (Civii, Criminal, Revenue) by the State of U.P. By its
circular dated 6.2.1990 the State terminated the appointment of ail
Government Counsel with effect from 28.2.1990 irrespective of the fad
whether the term of the incumbent had expired or Was subsisting. At
the s~me time the Government directed preparation of fresh panels to
make appointments in place of existing incumbents. The appellants b
chaiienged the validity of this· State action, which Was rejected by the
High Court.
Before this Court it was contended inter alia on behalf of the
petitioners/appellants that the relationship of the Government Counsel
with the Government was not mereJy one of client and counsei as in the
E
case of a private client, but one of status in the nature of public employ•
ment or appointment to a 'public office' so that termination of the
appointment of a Government Counsel couid not be equated with the
termination by a private litigant of his Counsel's engagement, which
was purely contractual, without any public element attaching to it.
,
F
On behaif of the State it was urged that: (i) the relationship of the
appointees to these offices of Government Counsel in the districts was
purely contractual dependin,ll on the terms of the contract and was in
the nature of an engagement of a Counsel by a private party who could
be changed at any time at the will of the litigant, with there being no
right in the counsel to insist on continuance of the engagement; (ii) there
d
was. no element of public employment in such appointments and the
provisions in the Legal Remembrancer's Manual and Section 24 of the
Code of Criminal Procedure were merely to provide for making a suit•
able choice; (iii) the appointment of a District Government Counsel was
only professional engagement terminable at will on ~ither side and not
appointment to a post under the Government; and the Governm·eni had
H
625
626
SUPREME COURT REPORTS
[1990] Supp. I S.C.R.
A
the power to terminate the appointment at any time 'without assigning
any cause' and hence this circular did not suffer from the vice of
arbitrariness.
B
c
D
E
F
G
H
Allowing the writ petitions and the appeals, this Court,
HELD: (I) The provisions in the Legal Remembrancer's Manual
clearly show that the Government Counsel in the districts are treated as
law Officers of the State who are holders of an 'office' or 'post'. These
provisions further indicate that the appointment and engagement of
District Government Counsel is not the same as that by a private litigant of his counsel and there is obviously an element of continuity of the
appointment unless the appointee is found to be unsuitable either by his
own work, conduct or age or in comparison to any more s.uitable candidate available at the place of appointment.
(2) All Government Counsel are paid remuneration out of the
public exchequer and there is a clear public element attaching to the
'office' or 'post'.
(3) Clause 3 of para 7.06 of the L.R: Manual which enables the
Government to terminate the appointment 'at any time without assigning any cause' merely means that the termination may be made even
during the subsistence of the term of appointment, and the expression
'without assigning any cause' means without communicating any cause
to the appointee whose appointment is tertitlnated.
(4) The non-assigning of reasons or the non-communication
thereof may be based on public policy, but termination of an appointment without the existence of any cogent reason in furtherance of the
object for which the power is given would be arbitrary and, therefore,
against public policy.
Liberty Oil Mills v. Union of India, [1984] 3 SCC 465, referred
to.
(5) In the case of Public Prosecutors, the public element flowing
from statutory provisions in the Code of Criminal Procedure, undoubtedly, invest the Public Prosecutors with the attribute of holder of a
public office 'which cannot be whittled down by the assertion that their'
engagement is purely professional between a client and his lawyer with
no public element attaching to it.
•
+
I r
KUMAR! SHRILEKHA v. STATE OF U.P.
627
M ahadeo v. Shantibhai, [1969 I 2 SCC 422; Mundrika Prasad A
Sinha v. State of Bihar, [1980] l S.C.R. 759; Mukul Dalal and Others v.
Union of India and Others, [1988] 3 SCC 144 and Ma/loch v. Aberdeen
Corporation, [1971] 2 All ER 1278, referred to.
(6) The presence of public element attached to the 'office' or
'post' of District Government Counsel of every category covered by the
impugned circular is sufficient to attract Article 14 of the Constitution
and bring the question of validity of the impugned circular within the
scope of judicial review.
(7) The scope of judicial review permissible in the present case
does not require any elaborate consideration since even the minimum
permitted scope of judicial review on the ground of arbitrariness or
unreasonableness or irrationality once Article 14 is attracted, is sufficient to invalidate ufe impugned ci~~ular.
(8) Even otherwise and sans the public element so obvious in
these appointments, the appointme~t and its concomitants viewed as
purely contractual matters after the appointment is made, also attract
Article 14 and exclude arbitrariness permitting judicial review of the
impugned State action.
(9) The personality of the State, requmng regulation of its
conduct in all spheres by requirements of Article 14, does not undergo
such a radical change after the making of a contract ·merely because
some contractual rights accrue to the other party in addition. It is not as
if the requirements of Article 14 and contractual obligations are alien
concepts, whiCh cannot co-exist.
B
c
D
E
(IO) The scope and permissible grounds of judicial review in such
F
matters, and the relief which may be available are different matters but
that does not justify the view of its total exclusion. This is more so when
the modern trend is also to examine the unreasonableness of a term in
such contracts where the bargaining power is unequal so that these are
not negotiated contracts but standard form contracts . between
unequals.
G
(11) To the extent challenge is made on the ground of violation of
Article 14 by alleging that the impugned act is arbitrary, unfair or
unreasonable, the fact that the dispute also falls within the domain of ·
~
contractual obligations would not relieve the State of its obligation to
comply with the basic requirements ()f Article 14.
.
H
A
B
c
D
628
SUPREME COURT REPORTS
[ 1990] Supp. I S.C.R.
(12) It is significant to note that emphasis now is on review ability
of every State action because it stems not from the nature of function,
but from the public nature of the body exercising that function; and all
powers possessed by a public authority, howsoever conferred, are
possessed 'solely in order thatit may use them for the public good'.
(\
Jones v. Swansea City Counsel, [1990] l W.L.R. 54, referred to.
(13) It can no longer be doubted at this point of time that Article
14 of the Constitution of India applies also to matters of governmental
policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be
unconstitutional.
Ramana Dayaram Shetty v. The International Airport Authority
of India, [1979] 3 SCR 1014; Kasturi Lal Lakshmi Reddy v. State of
Jammu and Kashmir, [1980] 3 SCR 1338 and Col. A.S. Sangwan v.
Union of India, [1980] Supp. SCC 559, referred to.
(14) The basic requirement of Article 14 is fairness in action by
the State and it is difficult to accept that the State can be permitted to
act otherwise in any field of its activity, irrespective of the nature of its
function, when it has the uppermost duty to be governed by the rule of
law. Non-arbitrariness, in substance, is only fair play in action. This
E
obvious requirement· must be satisfied by every action of the State or its
instrumentality in order to satisfy the test of validity.
' '·
M/s Dwarkadas Marfatia and Sons v. Board of Trustees of the
Port of Bombay, [1989) 3 SCC 293 and Mahabir Auto Stores & Ors. v.
Indian Oil Corporation, J. T. 1990 (1) SC 363.
r
.
.
F
(IS) There is a presumption of validity of the State action and the
burden is on the person who alleges violation of Article 14 to prove the
assertion. However, where no plausible reason or principle is ind_icated
nor is it discernible and the State action, therefore, appears to be ex facie
arbitrary, the initial burden to prove the arbitrariness is discharged
G
shifting onus on the State to justify its action as fair and reasonable.
(16) The wisdom of the policy or the lack of it or the desirability ·
of a better alternative is not within the permissible scope of judicial
review in such cases. It is not for the courts to recast the policy or to
substitute it with another which is considered to be more appropriate,
\..
H
once the attack on the ground of arbitrariness is successfully reP.,lled by
klJMARI SHR!LEKliA v. STATE OF U.I>.
629
showing that the act which was done was fair and reasonable in the tads
and circumstances of the case.
Council of Civil Service Union v. Minister for the Civil Service,
[1984] 3 All E,R, 935.
A
(17) Arbitrariness is the very uegatioh of the rule oflaw. Satisfac• B
tlon of this basic test in every Slate action is sine qua non to Its valldit~
and in this respect, the State cannot claim comparison with a private
individual even in the fi°eld of contract.
•
(18) Every State action must he informed by reason and It
follows, that an act uninformed by reason, is arbitrary. Rule of law
C
contemplates governance by laws and not by humour, whims or
caprices of the men to whom the governance is entrusted for the time
being.
(19) Irrespective of the nature of appointment of the Government
Counsel in the dis.tricts in the State of l.P and the security of tenure D
being minimal as claimed by ihe State, the impugned circular, in order
to survive, must withstand the attack of arbitrariness and he supported
as an informed decision which is reasonable.
S. G. Jaisinghani v. Union of India. [1967] 2 SCR 703.
(20) In the present case, the initial burden on the petitioners
appellants has been discharged by showing that there is no discernible
principle for the impugned action at the district level throughout the
State of U .P. since there is nothing in the circular to indicate that such a .
E
,
sweeping action for all districts throughout the State was. necessary
which made it reasonable to change all Government Counsel in the
F
districts throughout the State, even those whose tenure in office had not
expired.
(21) Non-application of mind to individual cases before issuing a
general circular terminating all such appointments throughout the
State is itself eloquent of the arbitrariness writ large on the face of the G
circular.
John Wilkes's case [1770] 4 Burr .. 2528.
(22) Arbitrariness is writ large in the impugned circular issued by
the State of Uttar Pradesh. It gives the impression that this action was H
A
B
c
D
630
SUPREME COURT REPORTS
[1990] Supp. 1 S.C.R.
l'
taken under the mistaken belief of applicability of "spoils system"
under our Constitution and the cavalier fashion in which the action has
been taken gives it the colour of treating the posts ofD.G.Cs. as.bounty
to be distributed by the appointing authority at its sweet will. Nothing
worthwhile has been shown on behalf of the State of U .P. to support the
impugned action as reasonable and non-arbitrary.
ORIGINAL JURISDICTION: Writ Petition No. 706 of 1990.
(Under Article 32 of the Constitution oflnclia).
Dr. L.M. Singhvi, Dr. Y.S. Chitale, R.K. Garg, R.N.
Trivedi; Addi. Advocate General for the State of U.P., Mrs. Swaran
Mahajan, Mrs. Geetanjali Mohan, Ms. Anuradha Mahajan, Sunil
Gupta, R. Venkataramani, S.M. Garg, Suresti Harkauli, Sushi!
Harkauli, Sunil Gupta, A.S. Pundir, Shrish Kumar Mis,ra, Mahesh
Shrivastava, H.D. Pathak, Vishnu Mathur and Mrs. Shobha Dikshit
for the appearing parties.
The Judgment of the Court was delivered by
VERMA, J. This judgment disposes of a bunch of matters com·
prising of some writ petitions under Article 3:2 .of the Constitution of
India and special leave petitions under Article 136 of the Constitution
E
of India, all of which involve for decisjon certain common questions.
F
The special leave petitions are directed against a common judgment of
the Allahabad High Court dismissing some writ petitions in which the
same questions were raised. In view of the decision of the High Court
rejecting those contentions, the writ petitions were filed in this Court l
directly for the same purpose.
By one stroke, seemingly resorting to the Spoils System alien to
our constitutional scheme, the Government of State ,of Uttar Pradesh
has terminated by a general order the appointments of all Government
Counsel (Civil, Criminal, Revenue) in all the districts of the State of
U .P. w.e.f. 26.2.1990 and directed preperation of fresh panels to make
G
appointments in place of the existing incumbents. This has been done
by Circular G.O. No. D-284-Seven-Law-Ministry dated 6.2.1990,
terminating all the existing appointments w.e.f. 28.2.1990, irrespective
of the fact whether the term of the incumbent had expired or was
subsisting. The validity of this State action is challenged in these
matters after the challenge has been rejected by the Allahabad High
H
Court. They have all been heard together since the common question
'
l
•
' -
41
KUMAR! SHRILEKHA v. STATE OF U.P. !VERMA, l.]
631
in all of them is the validity of the Circular G.O. No. D-284-SevenA
Law-Ministry dated 6.2.1990 issued by the Government of State of
U ttar Pradesh.
Leave is granted in the Special Leave Petitions and the appeals
are also heard on merits along with the Writ Petitions.
·
Broadly, two questions arise for decision by us in this bunch of
matters. These are: Is the impugned circular amenable to judicial
review?; and if so, is it liable to be quashed as violative of Article 14 of
the Constitution of India, being arbitrary?
The challenge in all these matters is to validity of G.O. No.
D-284-Seven-Law-Ministry dated 6th February, 1990, from Shri A.K.
Singh, Joint Legal Remembrancer, Justice (Law Ministry) Section,
Government of Uttar Pradesh, to all the District Magistrates of Uttar
Pradesh with copy to all the District Judges of the State for information and necessary action. The main question for decision in these
matters being the validity of this circular, it would be appropriate to
B
c
D
1 quote the same in extenso. It reads as under:
•
'
"Subject:RENEWAL OF TENURE OF ALL THE
EXISTING GOVERNMENT COUNSEL, CALLING
OF NEW PANELS FOR NEW APPOINTMENT.
xxxx
E
I have been directed to inform you on the subject
mentioned above that the Administration has taken a decision to extend the tenure of all the Government Counsel,
who are presently working, till 28th February, 1990 only
F
and to immediately receive new panels from the District
Magistrates for new appointments in their places.
2. I, therefore, have been directed to state that all the
Governmen't Counsel, presently engaged for the work of
Civil/Revenue/Criminal (including Anti-Dacoity) and
G
Urban Ceiling may be permitted to work till 28.2.1990 only
and for appointments in their place, Administration may
send the new panels, after preparing.the same in following
manner:-
!. Separate single panal in each of the Civil side, Revenue
H
632
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
IIQ9,P,J ~μpp, 1 PC:-!t
side, Criminal side (including Anti-Dacoity) and Urban
ceiling siqe fixed for 12 qistricts, and separate sing!~
p~nel in each of the courts, functioning at District anq
Tehsil Headquarters, may be . prepar~cl, lt may Pe
enlisted therein the names of the wPrk zone, number pf
courts related to it, the number of san9\ioned posts for
Government Counsel and recommengeq names of the
Counsel in terms of their seniprity.
2. It may be clearly mentioned in the panel which cPu!lsel
i
belong to Scheduled Caste, Scheduled Tribes, llackward Caste and Minority group.
3. The panels prepared for civil, revenue and urban ceiling
side may contain the recommendations of names only
three times of the presently sanctioned posts.
4. In the criminal side, five times of the names of the present sanctioned posts may be recommended.
5. The attested copies of Bio-Data of the Cgunsel recPIDmended, attested details of tpeir work <1nring last two
years1 certificate of registration as an Agvocaie, certificate of birth and the attested copies of certificates of
educational qualifications may also be sent.
6. The names of any s11c!i cmmsel, who ha~ practiceexperience for \ess than 7 years, or w!ig flas more than
60 years of age as on 1. 1. 1990, or the person who is
already working at a salaried Goveftlment or nonGovernmental posts, a full-time )ect\lrN in a college,
Notary, Marriage Officer, Executive Qazi or State, may
not be included in the panels, However, on resignation
from the present post, they can be incl\lded in the panel.
l
•
(
~
•;t:
7. For preparation of new panel, a general notice which
enlists the application, age, conditions of appointment
and the last" date for submission of Bio-Data, may be
prepared. Tl)is notice may be put on the Notice Boards
of the Local Bar Associations, and in the offices of District Magistrate, J)istrict Judge, Zonal Commissioner,
S.D.M. and Munsif Magistrate.
. , -
KUMAR! SHRILEKHA v. STATE OF U.P. !VERMA, J.l
633
8. It will be a condition for appointment as a Government
A
Counsel that he will not be permHted to do private
practice. He will be entitled to plead, with permjssiμn
from the Administration, only tqe cases of St~te
Government and Central Government, State Company
Council, Local Bodies, Autonomous Institution and
Authorities. He will be paid only the mont!Jly remuB
neration fixed by the Administration and no fee will be
paid according to the valuation of the case/appeal. No
extra fee will also be paid for any other work/consultation. It may also be clarified that appointment of ~
Government Counsel will be different from the Goverp.
ment employees arn;I no facilities t9 Goverp111eqt
employees will be applicable to them. The appqin\01ent C
of Government Counsel will be done in the form of
business engagement and the State Government will be
entitled to terminate engagement at any time, without
giving reasons for it.
3, The Bio-Data and other desired papers, if received from
the counsel \Vithin the prescribed date, may be examined
minutely, as a ,special drive and after getting approval from
the District Judge/Munsif Magistrate/SOM, as the case
may be, the names may be recommepded in the panel as
D
per seni9rity positiqn. The details qf las\ two years work,
E .
along with the attested copies o·f the certificates and information desired in the enclosed format,'Ka' and 'Kha' may
be sent to the Administration along with the panel.
4. I have also been directed to state that the appointments
made on or after January, 1990, shall not be affected by the
F
above mentioned policy decision and the same shall continue for the prescribed period.
5. I have also been directed tq clarify that the panels
received prior to release of this Government Order, on the
basis of which, no appointments or. renewal has been made
G
or which are still pending, may pe understood as cancelled.
6. l have also been directed to request you that the new
panels may be prepared in ·accordance with the above
direction on top priority basis, 'and the same may be
ensured. to be_ sent to the undersigned in a confidential
H
A
B
c
D
E
F
G
634
SUPREME COURT REPORTS
[1990] Supp. 1 S.C.R.
envelope through a special messanger by 25th February,
1990.
xxxx
xxx
sd/-
(A.K. Singh)
· Joint Legal Remembrancer"
By the above-quoted circular letter dated 6.2.1990, the decision.
of the State Government to terminate the engagement of all the
Government Counsel engaged throughout the State of U.P. for civil/
revenue/criminal (including anti-dacoity) and urban ceiling work on
and from 28.2. 1990 and to make appointments in their place.on the rasis
of new panel prepared for the purpose was communicated to all the
District Magistrates in the State. Admittedly, this circular was made
applicable to all the Government Counsel throughout the State at the
district level, howsoever designated such as district Government
Counsel, Additional District Government Counsel, etc. There Is no
dispute that the circular related to and applied equally to all the
Government Counsel throughout the State irrespective of their tenure
whose appointments were terminated w.e.f. 28.2.1990 for being
replaced by new appointees. The circular applled equally to not only
those Government Counsel whose tenure had already expired or
whose tenure was to expire before 28.2.1990, but also to those whose
tenure, as a result of their earlier appointment, was to extend beyond
28.2.1990, as well as those who were entitled to be considered for
renewal of the tenure on expiry of their earlier tenure. The Challenge
in these matters is not only by some individuals who were adversely
affected by the said circular but also by Association of District
Government Counsel. Since the impact of the _circular is on all
Government Counsel engaged at the district level throughout the
State, the challenge is really in representative capacity on behalf of all
of them and this is how the challenge has been met on behalf of the
State of U .P. in reply. It is common ground that the decision of these
matters will govern the appointment of all Government_ Counsel
throughout the State of U .P.at the district level, in all branches, irrespective of the name or designation given to the appointment such as
District Government Counsel,. Additional District Government
Counsel, etc.
Several arguments were advanced by the learned counsel on both
sides relating to the nature of these appointments about which there is
a serious contest between the parties. In the present case, it is not
H
necessary for us to consider at length the exact nature of these appoint-
,.
l
•
·-
KUMAR! SHRILEKHA v. STATE OF U.P. {VERMA, J.]
635
ments which is material only for indicating the extent of security of
tenure of the appointee to these offices since in our opinion the main
attack to the impugned circular on the ground of arbitrariness can be
upheld even assuming the security of tenure of the appointees to be
minimal as claimed for and on behalf of the State of U.P. We shall,
therefore, only refer to the rival contentions regarding the nature of
appointments and then proceed on the basis of the minimum status
attaching to these appointments to examine whether the ground of
arbitrariness is available and vitiates the circulaL
A
B
According to the learned Additional Advocate General of the
State of U.P., the relationship of the appointees to these offices of
Government Counsel in the districts is purely contractual depending C
on the terms of the contract and is in the nature of an engagement of a
Counsel by a private party who can be changed at any time at the will
of the litigant, with there being no right in the Counsel to insist on
continuance of the engagement. The learned Additional Advocate
General contended that for this reason, the relationship being purely
contractual, which cannot be continued against the will of either party, D
there is no scope for the argument ·that the State does not have the
. right to change the Government Counsel at its will. It is common
ground that the appointment, termination and renewal of tenure of all
. Government Counsel in the districts is governed by certain provisions
contained in the Legal Remembrancer's Manual, in addition to Section 24 of the Code of Criminal Procedure, 1973,.applicable in the case E
of public prosecutors. The learned Additional Advocate General did
not dispute tliat if Article 14 of the Constitution of India is.attracted to
this case like all State actions, the impugned circular would be liable to
be quashed if it suffers from the vice of'arbitrariness. However, his
argument is that there is no such vice. In the ultimate analysis, it is the
challenge of arbitrariness which the circular must withstand in order to F
survive. This really is the main point involved for decision by us in the
present case.
The nature of appointment of the Government Counsel in the
districts on the civil, criminal and revenue sides was hotly debated
. during the hearing. It was urged on behalf of the petitioners/appellants G
that the relationship of the Government Counsel with the Government
is not merely one of client and counsel as in the case of a private client,
but one of° status in the nature of public employment or appointment to
a 'public office' so that termination of the appointment of a Government Counsel cannot be equated with the termination by a private
litigimt of his Counsel's engagement, which is purely contractual, withH
A
B
c
D
E
636
SUPREME COURT REPORTS
[1990] Supp. I S.C.R.
out any public element attaching to it. It was urged that appointment
of public prosecutors has a statutory status also in view of such
appointments being required to be made in accordance with Section 24
of the Code of Criminal Procedure, 1973. Reliance was also placed on
certain provisions of the Legal Remembrancer's Manual, which admittedly govern and regulate the appointment of all Government Counsel
in the districts as well as the termination of their appointment and
renewal of their tenures. It was contended that the relationship between the Government and the Government Counsel is, therefore, not
purely contractual in nature as in the case of a private litigant and his
counsel. An attempt was also made to urge that the appointment of
Government Counsel is in the nature of a public employment with the
attendant security of tenure of office and the necessary concomitants
attaching to it. On the other hand, the learned Additional Advocate
General appearing for the State of U.P. contended that the relationship between the Government and the Government Counsel is purely
contractual like that of a private litigant and his counsel which enables
the Government to change its counsel at any time as may be done by a
private litigant in the event of loss of confidence between them. He
contended that there is no element of public employment in such
appointinents and the provisions in the Legal Remembrancer's Manual
and Section 24 of the Code of Criminal Procedure are merely to provide for making a suitable choice. We shall briefly refer to some provisions which admittedly regulate and govern such appointments, termination and renewal of tenure of the ap~ointees.
Chapter I of the Legal Remembrancer's Manual, 1975 Ed., con-'
ta ins the interpretations and Para 1.0 l says that the L. R. Manual is the
authoritative compilation of the Government orders and instructions
for the conduct of legal affairs of the State Gov~rnment. Para 1.06
F
enumerates the Law Officers of the Government which includes the
District Government Counsel (Civil, Revenue, Criminal) along with
many others such as Judicial Secretary and Legislative Secretary. it is
obvious that all of them including D.G.Cs. are described as holders of
some 'office' of the State Govt. Chapter VII contains the necessary
provisions relating to District Government Counsel. Part A therein
G
deals with appointment and conditions of engagement of the District
Government Counsel. Para 7 .02 deals with the power of Government
to appoint Government Counsel in the districts which requires the
Government to appoint District Government Counsel (Civil,
Revenue, Criminal) and also, wherever necessary, in the interest of
efficient and expeditious disposal of business, to appoint Additional
H
or/and Assistant District Government Counsel to assist the District
•
KUMARI SHRILEKHA '· STATE OF U.P. [VERMA. J.[
637
Government Counsel (Criminal) or (Civil) in discharge of his duties:
Subordinate District Government Counsel for the conduct of civil
cases in outlying towns of a district; and Assistant District Government Counsel in outlying towns of the district for the conduct of criminal or civil cases or both. Para 7.03 provides for applications and
qualifications for appointment to these offices or posts. The District
Officer is reg uired to consider all the applications received in consultation with the District Judge, giving due weight to the claim of the
existing incumbents, if any, and to submit in order of preference the
names of legal practitioners, together with the opinion of the District
Judge on the suitability and merits of each candidate. The process of
selection expressly involves the District Judge and gives due weight to
his opinion for the obvious reason that. the District Judge is expected
to know best the comparative merits of the candidates for such
appointments. Para 7.04 requires the Legal Remembrancer to submit
the recommendations of the District Officer along with his own
opinion for the orders of the Government. Para 7.06 provides for
appointment and renewal, para 7 .08 for renewal of term and para 7.09
for maintenance of character roll of the appointees. Para 7.07 forbids
the D.G.C. so long as he holds the 'post' from participating in political
,activity like all other Government officers and unlike a lawyer engaged
by a private party. These provisions read as under:
A
B
c
b
"7.06. Appointment and renewal-( 1) The legal
practi~
tioner finally selected by the Government may be appoin-
'E
ted District Government Counsel for one. year from lhc
date of his taking over charge.
(2) At the end of the aforesaid period, the Distrid
Officer after consulting the District Judge shali submii a
report on his work and conduct to the Legai RcmemF
brancer 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 Goverhment 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. I for a term not exceeding three G
years. On his first engagement a copy of Form No. 2 shali
be supplied to him and he shall complete and return it hi
the Legal Remembrancer for record .
(3). The appointment of any legal practltidhet tis ti
District Government Counsel is only professional engagefl:
638
A
B
c
D
F
G
H
SUPREME COURT REPORTS
tl990) Supp, 1 S.C.R.
·.,
ment terminable at will on eiiher side and is not appoint·
ment 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 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 therefore shall also be
stated by the District Officer.
(3) While forwarding his recommendation for rene-
..
I
"
wal of the term of a District Government Counsel-
~
(i) the District Judge shall give an estimate of the
quality of the Counsels's work from the Judicial standpoint, 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.
..
KUMAR! SHRILEKHA v. STATE OF U.P. [VERMA, J.).
.639
( 4) If the Government agrees with the recommendations of the District Officer for the renewal of the term Of · A
the Government Counsel, it may pass orders for reappointing 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.
Note-The renewal beyond 60 years of age shall
depend upon continuous good work, sound integrity and
physical fitness of the Counsel.
a.
c
7.09. Character roll-(l) The District Officer and
D
the District Judge shall, before the end of every year and
also while leaving the district on transfer, place on record
his opinion on the capacity and work of the District
Government Counsel. The District Judge shall before
recording such opinion obtain a report about the work and
conduct of the District Government Counsel from the preE
siding officers of the courts, where they are generally
required to practise. Similarly, the District Officer shall
before recording such opinion obtain a report from the
Superintendent of Police regarding the counsel's capacity
for prosecution of cases and assistance rendered to the
invesilgating agency. The record, which shall be confidenF
tial, siiail be maintained by the District Officer. Every
adverse entry . shall be communicated to the District
Government Counsel· concerned by the District Officer,
with the prior approval of the Government.
(2) The character roll of every District Government G
Counsel shall· also be maintained by the Government in
Judicial (Legal Advice) Seciion. For this purpose, the District Officer shall forward to the Legal Remembrancer a
copy of all the confidential reports, recorded by him and
the District Judge on the work and conduct of the District
Government Counsel by the first week of May every year H
A
B
c
p
E
F
G
640
SUPREME COURT REPORTS
[1990] Supp. 1 S.C.R.
for being incorporated in the character roll, mii~talned liy
the Governmeni.
(3) The District Officer shall forward a copy of all
the confidential reports, referred to in para 7.09(2) in
respect of District Government Counsel (Criminal) to
Hr.me (Police) Section of Secretariat also for information.
( 4) Any shortcomings on the part of the District
Government Counsel shall at once be brought to the notice
of the Legal Remembrancer."
f
These provisions show that the initial appointment is for a period
of one year during which the work and conduct of the appointee is
watched to adjudge his suitability and a report is required to be submitted at the end thereof by the District Officer after consulting the
District Judge and on the same being found satisfactory, his engagement is made for a term not exceeding three years. Before expiry of
the term of three years, the case of the incumbent is to be considered
on tke basis of his work, conduct and age for renewal and the Government is required to decide the question of his reappointment for a
period not exceeding three years on the basis of the report of the
District Officer and the opinion of the District Judge. If the Government agrees with their recommendations, the term of the existing
incumbent is renewed for a period not exceeding three years. It is only
'if the Government decides not to reappoint a Government Counsel'
that the Legal Remembrancer may call upon the District Officer to
forward fresh recommendations in the manner laid down in para 7.03.
This procedure is to be followed on the expiry of every successive
period of renewed appointment of District Government Counsel. The
age factor mentioned in para 7.08 has to be read with the footnote to
it, which says that 'the renewal beyond 60 years of age shall depend
upon continuous good work, sound integrity and physical fitness of the
Counsel'. Para 7 .09 provides for maintenance of the character roll in
which the District Officer and the District Judge are required to record
their opinion on the capacity and work of the District Government
Counsel. Clause 3 of para 7.06, regarding termination of the appointment, would be considered later while dealing with an other argument
of the learned Additional Advocate General. Part B of Chapter VII
lays down 'Duties'ofD.G.Cs.
' ,
The above provisions in the LR. Manual clearly show that the
r
Ii . Government Counsel in the districts are treated as Law Officers of the
•
KUMAR! SHRILEKHA v. STATE OF Uf (VERMA, J.l
641
'
State who are holders of an 'office' or 'post'. The aforesaid provisions
in Chapter VII relating to appointment and conditions of engagement
of District Government Counsel show 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 Officer and the District
Judge; 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. There are
provisions to bar private practice and participation in political activity
by D.G.Cs. Apart from clause 3 of para 7.06 to which we shall advert a
little later, these provisions clearly indicate that the appointment and
engagement of District Government Counsel is not the same as that by
a private litigant of his counsel and there is obviously an element of
continuity ·of the appointment unless the appointee is found to be
unsuitable either by his own work, conduct or age or in comparison to
any more suitable candidate available at the place of appointment.
Suitability of the appointee being the prime criterion for any such
appointment, it is obvious that appointment of the best amongst those
available, is the object sought to be achieved by these provisions,
which, even otherwise, should be the paramount consideration in discharge of this governmental function aimed at promoting public
interest. All Govt. Counsel are paid remuneration out of the public
exchequer and there is a clear public element attaching to the 'office'
or 'post'.
The learhed Additional Advocate General contended that clause
3 of para 7 .06 says that the appointment of a District Government
Counsel is only professional engagement terminable at will on either
A
B
c
D
E
side and not appointment to a post under the Government; and the
Government has the power to tenninate the appointment at any time
'without assigning any cause'. He contended that this power to terp
minate the appointment at any time without assigning any cause and
the clea·r statement that the appointment is only professional engagement terminable at will on either side is sufficient to indicate that the
relationship is the same as that of a private client and his counsel. Jn
our opinion, this provision has to .be read not in isolation, but in the
context in which it appears and along with the connected provisions,
G
already referred. The expression 'professional engagement' is used
therein to distinguish it from 'appointment to a post underthe Government' _in the strict sense.