# STATE OF U.P AND ANR v. JOHRI MAL

- **Citation:** [2004] Supp. 1 S.C.R. 560
- **Court:** Supreme Court of India
- **Decided:** 2004-04-21
- **Case number:** Civil Appeal Nos. 963-64of2000
- **Bench:** V.N. Khare, Brijesh Kumar, S.B. Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-u-p-and-anr-v-johri-mal-19967
- **Pages:** 41

## Headnote

Constitution of India, 1950-Article 226-Judicial Review underScope of-Held: Power of judicial review cannot assume supervisory
C governance under rule of law or areas reserved by supreme lax-Also decisions
or actions not. having adjudicative disposition are not subject to judicial
review-Scope of review is limited-While exercising the power, the court is
concerned with the decision making process than merit of the decision for
which it has to reappreciate findings of facts-Furthermore, State's action is
subject to judicial review when there is a public law element-This is
D d_etermined in each case having regard to the nature and authority vested
in the State-Nature of actions cannot be generalized nor lists of actions,
either public or private, can be given.
E
Code of Cri"!_inal Procedure, 197 3-Section 24-Uttar Pradesh Legal
Remembrancer Manual-Paras 7.01 to 7.08 and Chapter XX!:
District Government Counsel/Public Prosecutor.::._Appointment-Nature
of-Held: ls a professional engagement and not a civil post-It is governed
by. the provisions of Cr.P.C and/or executive instructions framed by State
Government and does not attract Article 309-Such appointment is normally
F not subject to judicial revie~Non-renewal can be subject to judicial review
on the ground of arbitrariness or malice in /~ourt would not examine
as to what impelled State not to renew the tenure but would invoke doctrine
of 'Wednesbury Unreasonableness'.
Renewal of term-Held: Cr.P.C. does not provide for renewal of termG Manual though provides for renewal of term but being compilation of executive
orders is not law under Article 13 and also not covered by Article l 66(3)-
However, in such matter State is to act fairly and reasonably and is to follow
principles in the Manual-On facts, District Officer opined that tenure of
DGC not to be renewed as he did not have effective control over other ADGs
and the District Judge agreed thereto-Hence, non-renewal of term by Stcite
H
560
ST ATE v. JOHRI MAL
561
not wholly without jurisdiction and as such does not call for interference- A
Executive instructions-Administrative Law-Constitution of India, 1950Article 309, 13, 166(3) and 226.
District Government Counsel/Public Prosecutor-Appointment-Nature
of office-Held: District Government counsel/Public Prosecutor hold office of
great importance-DOC represents the State, thus, involves public element- B
They cannot claim right to be appointed-Article I 4 is attracted to limited
extent-Furthermore, the appointment to such a post should not be political
and State should not rescind it with the change in the Government.
District Government Counsel-Appointment and renewal of term-
'Consultation' with District Judge-lntetpretation of-On facts, direction by C
High Court regarding renewal of applicants' terms as DGC to be considered
by collegium headed by District Judge relying on Special Reference No. 1
of 1998--Correctness of-Held: Appointment of DGC cannot be equated with
the appointment of High Court and Supreme Court Judges as such reliance
on Special Reference No. 1 of 1998 not correct and High Court erred in D
directing constitution of collegium-Consultation with District Judge must
be effective one-He should take his colleagues into confidence-Further,
High Court's power under Article 226 not at par with Supreme Court's power
under Article 142-Thus, High Court cannot direct formulation of new
principle contrary to the statutory provision-Constitution of India, 1950Articles 226 and I 42.
E
Amendment of section 24-Deletion of requirement to consult the High
Court for appointment of Public Prosecutors for High Court-Correctness
of-Held: Amendment of section 24(/) and deletion of sub sections (4), (5)
and (6) of section 24 is irrational-Even though Legal Remembrancer Manual
lays down exhaustive provisions being complete code in itself does not F
render any help since law cannot be substituted by executive instructionsSection 24 being salutary, State is expected to amend the prov

## Text

_Characters 0–39,864 of 98,631. This is a partial read: ask again with offset=39864 for what follows._

A
STATE OF U.P AND ANR.
v.
JOHRI MAL
APRIL 21, 2004
B
[V.N. KHARE, CJ., BRIJESH KUMAR AND S.B. SINHA, JJ.]
Constitution of India, 1950-Article 226-Judicial Review underScope of-Held: Power of judicial review cannot assume supervisory
C governance under rule of law or areas reserved by supreme lax-Also decisions
or actions not. having adjudicative disposition are not subject to judicial
review-Scope of review is limited-While exercising the power, the court is
concerned with the decision making process than merit of the decision for
which it has to reappreciate findings of facts-Furthermore, State's action is
subject to judicial review when there is a public law element-This is
D d_etermined in each case having regard to the nature and authority vested
in the State-Nature of actions cannot be generalized nor lists of actions,
either public or private, can be given.
E
Code of Cri"!_inal Procedure, 197 3-Section 24-Uttar Pradesh Legal
Remembrancer Manual-Paras 7.01 to 7.08 and Chapter XX!:
District Government Counsel/Public Prosecutor.::._Appointment-Nature
of-Held: ls a professional engagement and not a civil post-It is governed
by. the provisions of Cr.P.C and/or executive instructions framed by State
Government and does not attract Article 309-Such appointment is normally
F not subject to judicial revie~Non-renewal can be subject to judicial review
on the ground of arbitrariness or malice in /~ourt would not examine
as to what impelled State not to renew the tenure but would invoke doctrine
of 'Wednesbury Unreasonableness'.
Renewal of term-Held: Cr.P.C. does not provide for renewal of termG Manual though provides for renewal of term but being compilation of executive
orders is not law under Article 13 and also not covered by Article l 66(3)-
However, in such matter State is to act fairly and reasonably and is to follow
principles in the Manual-On facts, District Officer opined that tenure of
DGC not to be renewed as he did not have effective control over other ADGs
and the District Judge agreed thereto-Hence, non-renewal of term by Stcite
H
560
ST ATE v. JOHRI MAL
561
not wholly without jurisdiction and as such does not call for interference- A
Executive instructions-Administrative Law-Constitution of India, 1950Article 309, 13, 166(3) and 226.
District Government Counsel/Public Prosecutor-Appointment-Nature
of office-Held: District Government counsel/Public Prosecutor hold office of
great importance-DOC represents the State, thus, involves public element- B
They cannot claim right to be appointed-Article I 4 is attracted to limited
extent-Furthermore, the appointment to such a post should not be political
and State should not rescind it with the change in the Government.
District Government Counsel-Appointment and renewal of term-
'Consultation' with District Judge-lntetpretation of-On facts, direction by C
High Court regarding renewal of applicants' terms as DGC to be considered
by collegium headed by District Judge relying on Special Reference No. 1
of 1998--Correctness of-Held: Appointment of DGC cannot be equated with
the appointment of High Court and Supreme Court Judges as such reliance
on Special Reference No. 1 of 1998 not correct and High Court erred in D
directing constitution of collegium-Consultation with District Judge must
be effective one-He should take his colleagues into confidence-Further,
High Court's power under Article 226 not at par with Supreme Court's power
under Article 142-Thus, High Court cannot direct formulation of new
principle contrary to the statutory provision-Constitution of India, 1950Articles 226 and I 42.
E
Amendment of section 24-Deletion of requirement to consult the High
Court for appointment of Public Prosecutors for High Court-Correctness
of-Held: Amendment of section 24(/) and deletion of sub sections (4), (5)
and (6) of section 24 is irrational-Even though Legal Remembrancer Manual
lays down exhaustive provisions being complete code in itself does not F
render any help since law cannot be substituted by executive instructionsSection 24 being salutary, State is expected to amend the provision or
consult the High Court despite deletion.
Doctrines:
G
Doctrine of 'Wednesbury Unreasonableness'-lnvoking of
'Words and Phrases:
'Consultation'-Meaning of.
District Government Counsel (DGC) are appointed by the State ofUttar H
562
SUPREME COURT REPORTS [2004) SUPP. I S.C.R.
A Pradesh for civil, criminal and revenue courts in terms of the Legal
Remembrancer Manual and their renewal is also governed by the Manual.
Appointment of Public Prosecutor is governed by Cr.P.C., 1973. However, the
State of U.P. amended Section 24 of Cr.P.C and the requirement to consult
the High Court for appointment of Public Prosecutors for High Court under
B sub-section (1) and also sub-sections (4), (5) and (6) were deleted.
In the instant appeals, respondent No. 1 was. appointed as District
Government Counsel (DGC) at Meerut. State Government did not renew his
term as DGC, even though vacancy for the said post was notified. Respondent
No. 1 challenged the order. Division Bench of High Court directed renewal of
C respondent No. 1 's term as DGC since the District Judge had recommended
in his favour. High Court referring to Special Reference No. I of 1998 further
held that the ~istrict Judge should make recommendation by a collegium
headed by himself and five judicial officers. Appellant-State filed application
for recalling the Judgement passed by High Court since the District Judge
or District M~gistrate did not recommend the case of respondent No. 1. High
D Court directed that the renewal of respondent's term as DGC should be
considered afresh by the collegium headed by District Judge. Hence the present
appeals.
Appellant-State contented that professional engagement of a lawyer
cannot be equated with appointment on a civil post; that the District Magistrate
E had not recommended renewal of respondent No.l's term as DGC; and that
the High Court erred in directing constitution of a collegium.
Respondent contended that the office of public prosecutor was public in
nature; that the High Court directed constitution of a collegium since the
F action of the State in appointment and/or renewal of the DGCs ~as arbitrary;
and that proviso appended to clause (3) of Para 7.03 that District Officer could
recommend name of person who has not supplied bio data for the appointment
but may be considered fit, is misused.
G
Allowing the appeals, the Coo.rt
HELD: 1.1. 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 legislative act or an executive act of the State or an instrumentality
or a person or authority imbued w.ith public law element. The question.is·
required to be determined in each case having regard to the nature and extent
H · of authority vested in the State. However, the nature of the action either under
STATE v. JOHRI MAL
563
public law or private law field cannot be generalised nor is it desirable to give A
exhaustive list of such actions. 1578-B-DI
Life Insurance Corporation v. Escorts and Ors., AIR (1986) SC 1370;
F.C.I and Ors. v. Jagannath Dutta and Ors., AIR (1993) SC 1494; State of
Gujarat and Ors. v. Meghji Pethraj Shah Charitable Trust and Ors., 1199413
SCC 552; Assistant Excise Commissioner and Ors. v. Issac Peter and Ors., B
(19941 4 SCC 104 and National Highway Authority of India v. Mis Ganga
Enterprises, (2003) 7 SCALE 171, relied on.
1.2. The scope and extent of power of the judicial review of High Court
under Article 226 of the Constitution would vary from case to case, the nature
of the order, the relevant statute as also the other relevant factors including C
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.
It is not intended either to review governance under the rule oflaw nor do the
courts step into the areas exclusively reserved by the supreme lax to the other D ·
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 scope of judicial review is limited. [579-G-H; 580-A)
Tata Cellular v. Union of India, (1994) 6 SCC 651; Monarch
Infrastructure (P) ltd v. Commissioner, Ulhasnagar Municipal Corporation E
and Ors., (2000) 5 SCC 287; WB. State Electricity Board v. Patel Engineering
Co. ltd. and Ors., (20011 2 SCC 451 and L.T.C and Anr. v. Consumer
Education and Research Centre and Ors., AIR (1996) SC 1811, referred to.
Council a/Civil Services Unions v. Minister for the Civil Service, (1985)
AC 374; R (Abbasi) v. Secretpry a/State of the Foreign and Commonwealth F
Office and Secretary of State for the Home Department, (2002) EWCA Civ., 6
November 2002 and Ira Munn v. State of Ellinois, (1876) 94 US (Supreme
Reports) 113, referred to.
Administrative Law by Wade, 8th Edition pp.33-35, referred to.
1.3. 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. But while examining and scrutinizing the decision
making process, it becomes inevitable to also appreciate the facts of a given
case as otherwise the decision cannot be tested under the grounds of illegality,
G
H
564
SUPREME COURT REPORTS [2004] SUPP. I S.C.R.
A irrationality or procedural impropriety. How far the court of judicial review
can reappreciate the fmdings of facts, depends on the ground of judicial review.
Therefore, to a limited extent of scrutinizing the decision making process, it
is always open to the Court to review the evaluation of facts by the decision
maker. (581-E-H; 582-A-B)
B
Chief Constable of the North Wales Police v. Evans, (1982) 3 ALL ER
141, referred to.
Administrative Law by Prof Bernard Schwartz III Edn. Little Brown
Company 1991; Judicial Remedies in Public Law by Prof Clive Lewis 1992
C Edn. pp. 294-552; Applications for Judicial Review, Law and Practice by
Grahame Aldous and John Alder; Administrative Law by Wade 8th Edition
pp. 551-552, referred to.
2.1~ The Legal Remembrancer Manual clearly states that the
appointment of a public prosecutor or a district counsel would be professional
D in nature. It is beyond any cavil 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. So far
as Assistant Public prosecutors are concerned, they are employees of the State
and hold civil posts. They are answerable for their conduct to higher statutory
authority. Their appointment is governed by the service rules framed by the
E respective State Government. (584-D-F]
Samarendra Das, Advocate v. The State of West Bengal and Ors., JT
(2004) 2 SC 413, relied on.
2.2. The appointments of Public Prosecutors are governed by Cr.P.C.
F and/or the executive instructions framed by the State governing the terms of
their appointment. Proviso appended to Article 309 ofthe Constitution is not
applicable in their case. Their appointment is a tenure appointment. Public
Prosecutors, furthermore, retain the character of legal practitioners for all
intent and purport. They, of course, discharge public functions and certain
G statutory powers are also conferred upon them. Their duties and functions
are onerous but the same would not mean that their conditions of appointment
are governed by any statute or statutory rule. (584-G-H; 585-A)
2.3. So long as in appointing a counsel the procedures laid down under
the Cr.P.C. are followed and a reasonable or fair procedure is adopted, the
H Court will normally not interfere with the decision. The nature of office being
ST A TE v. JOHRI MAL
565
professional in nature, courts are normally charry to over-turn any decision, A
unless an exceptional case is made out. Cr.P.C. does not speak of renewal or
extension of tenure. The incumbent has no legal enforceable right for renewal
of its term. The action of the State in not renewing the tenure can be subjected
to judicial scrutiny inter alia on the ground of arbitrariness and malice in
law. The courts normally would not delve into the records with a view to
ascertain as to what impelled the State11ot to renew the tenure of a public B
prosecutor or a district counsel. The jurisdiction of the courts in a case of
this nature would be to invoke the doctrine of'Wednesbury Unreasonableness' •.
(585-B-El
Associated Picture House v. Wednesbury Corporation, (1947) 2 All ER C
640, referred to.
Om Kumar and Ors. v. Union of India, (20011 2 SCC 386, referred to.
2.4. Cr.P.C. does not provide for renewal or extension of a term. The.
Legal Remembrancer Manual provides for renewal of the term but it contains
executive instructions which even do not meet the requirements of clause (3) · D
of Article 166 of the Constitution and is not a law within the meaning of Article
13 of the Constitution. Evidently, the Legislature thought it fit to leave such'
matters at the discretion of the State in which State is required to act fairly
and reasona~ly. The State normally would be bound to follow the principles
laid down in the Legal Remembrancer Manual. (586-E-Fl
E
Union of India v. Naveen Jindal, JT (2004) 2 SC I, relied on.
2.5. The State, 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 fulfil its duty to uphold the rule of law; (iii) its accountability F
to the public; and (iv) expenditure from the tax payers' money. 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. State should replace an efficient, honest and competent G
lawyer, inter alia, when it is in a position to appoint a more competent lawyer.
In such an event, even a good performance by lawyer may not be of much
importance. [586-B-El
3.1. The District Government counsel appointed for conducting civil as
also criminal cases hold offices of great importance. They are not only officers H
566
SUPREME COURT REPORTS [2004] SUPP. I S.C.R.
A of the court but also the representative of the State. On the other hand, Public
Prosecutors have greater responsibility. They are required to perform
statutory duties independently having regard to various provisions contained
in the Cr.P.C and in particular Section 320 thereof. (59~F-GJ
3.2. The holders of the post of Government counsel have a public duty
B to perform. They represent the interest of general public before a court of
law. Public element is, thus, involved therein. However, in the matter of
engagement of a District Government Counsel, a concept of public office does
not come into play. It is the choice of the Government and none can claim a
right to be appointed because it is a position of great trust and confidence.
C However, Article 14 will be attracted to a limited extent as the functionaries
named in the Cr.P.C. 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. 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
D law are not complied with and also if a holder of a public office is sought to be
removed for reason de'hors the statute. Furthermore, the appointment such a
post must not be political one. Legal Remembrancer's Manual clearly forbids
appointment of such a lawyer and/or if appointed, removal from his office.
Therefore, District Judge and District Magistrate are duty bound to see that
no recommendation is ma.de earlier nor there is any political affinity. State is
E not expected to rescind the appointments with the change in the Government.
(597-E-H; 598-CJ
3.3. The Public Prosecutors and the Government Counsel play an
important role in administration of justice. Efforts are required to be made to
F improve the management of prosecution in order to see that innocent persons
may not be convicted as well as an accused guilty of commission of crime
does not go unpunished and also release or direct the use of non:.punitive
methods of treatment of those whose cases would best be processed.
Maintenance of law and order in the society and, thus, to some extent
maintenance of rule of law which is the basic fibre for upholding the rule of
G democracy lies in their hands. The prosecutors should not be over-burdened
with too many cases of widely varying degree of seriousness with too few
assistants and inadequate financial resources. (596-H; 597-A-B-CJ
4. The District Officer was of the opinion that in a district like Meerut
the term of the appointment of respondent no. 1 should not be extended as he
H has no effective control over the other ADGs for 'taking steps'. The approach
•.
STATE v. JOHRI MAL [SINHA, J.)
567
of the District Officer cannot be said to be wholly irrational since the District A
Government Counsel is required to discharge certain administrative functions.
District Judge, Meerut has also agreed thereto. Therefore, the action on the
part of the State, cannot be said to be wholly without jurisdiction requiring
interference by High Court in exercise of its power of judicial review. High
Court has based its decisions on the wrong premise that the District B
Magistrate recommended the renewal of respondent no. l's term as DGC and
as such the impugned judgment cannot be sustained. [588-C-F)
5.1. Appointment of the District Government Counsel cannot be equated
with the appointments of the High Court and the Supreme Court Judges. A
distinction must be made between professional engagement and a holder of C
high public office. Various doctrines and the provisions of the Constitution
which impelled this Court to give meaning of 'consultation' as 'concurrence'
and wherein the Chief Justice oflndia will have a primacy, cannot be held to
be applicable in the matter of consultation between the District Magistrate
and the District Judge for the purpose of preparation of a panel of the District
Government Counsel. The consultation with the District Judge must be an 0
effective one. The District Judge in turn would be well advised to take his
colleagues into confidence so that only meritorious and competent persons
who can maintain the standard of public office, can be found out. (589-D-F)
Supreme Court Advocates-on-Record Association and Ors. v. Union of
India, (1993) 4 SCC 441 and In Special Reference No. 1 of(l998), Re, (1998) E
7 sec 739, distinguished.
5.2. The power under Article 226 of the Constitution is not at par with
the constitutional jurisdiction conferred upon this Court under Article 142
of the Constitution. High Court has no jurisdiction to direct formulation of a F
new legal principle or a new procedure which would be contrary to and
inconsistent with a statutory provision like Cr.P.C. (589-G-H)
State of Himachal Pradesh v. A Parent of a Student of Medical College,
Simla and Ors., (1985) 3 SCC 169 and Asif Hameed and Ors. v. State of Jammu
and Kashmir and Ors., 119891Supp.2 sec 364, relied on.
G
Guruvayoor Devaswom Managing Committee and Anr. v. C.K. Rajan
and Ors., (2003) 7 SCC 546, referred to.
6. There does not exist any rationale behind deletion of the provision
relating to consultation with the High Court in the matter of appointment of H
568
SUPREME COURT REPORTS [2004] SUPP. l S.C.R.
A the Public Prosecutors in the High Court The said provision being a salutary
one, it is expected that the State of U.P. either would suitably amend the same
or despite deletion shall consult the High Court with a view to ensure fairness
in action. The submission of the State that such a step had been taken having
regard to the fact that exhaustive provisions .are laid down in Legal
B Remembrancer Manual which is a complete code in itself cannot be accepted
as a law cannot be substituted by executive instructions which may be subjected
to administrative vagaries. The executive instructions can be amended, altered
or withdrawn at the whims and caprice of the executive for the party in power.
It is beyond any cavil that executive instructions do not carry the same status
as of a statute. State should bear in mind the dicta of this Court as regards
C the necessity to consult the District Judge. Therefore, while making
appointments of District Government Counsel, State should give primacy to
the opinion of the District Judge. Such a course of action would demonstrate
fairness and reasonableness of action and, furthermore, to a large extent the
action of the State would not be dubbed as politically motivated or otherwise
D arbitrary. (600-A-E]
Kumari Shri/ekha Vidyarthi and Ors. v. State ofU.P. and Ors., (1991) 1
SCC 212; Mukul Dalal and Ors. v. Union of India and Ors., (1998] 3 SCC
144; Mundrika Prasad Singh v. State of Bihar, [1979) 4 SCC 701; State of
U.P. v. Ramesh Chandra Sharma and Ors., (1995) 6 SCC 527; Harpal Singh
E Chauhan and Ors. v. State of U.P., (1993) 3 SCC 552 and State of U.P. v. UP.
State Law Officers Association and Ors. etc., (1994) 2 SCC 204, referred to.
7.l. The proviso appended to clause (3) of Para 7.03 was evidently made
having regard to the fact that an advocate having a deep sense of self-respect
may not file any application for his appointment as a District Government
F Counsel despite calling for applications by the District Magistrate in this
behalf. The District Magistrate in a given situation may have to persuade very
compe!enf persons to take the offer in public interest as also in the interest
of tile State. But recourse to the said provision cannot be resorted to for
'general appointments but only in very exceptional cases in consultation with
the District Judge. (599-B-D)
G
7 .2. A submission of bio data on the part of the advocate pursuant to
issuance of a notice for appointment of Public Prosecutor~ therefor by the
District Magistrate or the District.Judge would not amount to soliciting briefs
within the meaning of Rule 36 of the Bar Council of India Rules as the
H advocates would notfile any application on their own. [598-H; 599-A]
..
...
STATE v. JOHRI MAL [SINHA, J.]
$69
B. Rajeswar Reddy and Ors. v. K.N. Narasimhachari and Ors., (2001) 6 A
ALT 104, approved.
Harpal Singh Chauhan and Ors. v State of U.P., (1993) 3 SCC 552,
referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 963-64of2000. B
From the Judgment and Order dated 11.12.98 of the Allahabad High
Court in C.M.W.P. No. 34064of1998
WITH
C.A. Nos. 967, 968, 970, 976-77, 975, 972, 973, 969, 974, 971, 965, 966/.2000
and 6549of1999.
c
Ranjit Kumar, R.C. Srivastava, Ashok K. Srivastava, R.N. Keshwani,
(NP), Ms. Binu Tamta, J.M. Sharma, Ms. Abba, R. Sharma, Ms. Sandhya
Goswami, T.N. Singh, S.P. Sharma, Ashwilti Bhardwaj, Abhishek Atrey, Subrat D
Birla, S.C. Birla, Y.P. Dhamija and Ms. Rachna Srivastava for the appearing
parties.
The Judgment of the Court was delivered by
S.B. SINHA, J.
E
IN1RODUCTION:
A short but interesting question as regards interpretation of Section 24
of the Code of Criminal Procedure and the relevant provisions of Legal
Remembrancer's Manual relating to appointment and renewal of term of the
District Government Counsel is in que~tion in this batch of appeals whi¢h F
arise out of various judgments and orders passed by the Allahabad High
Court inC.M.W.P. Nos. 34064, 19513, 34074, 26613,40945,41178, 5665,41180,
5667 of 1998, 9809 of 1992, 9203 of 1998, 3100, 3102 of 1999 and 6754 of 1998.
FACTUAL BACKDROP:
The State of Uttar Pradesh appoints District Government Counsel (DG<t)
for civil, criminal and revenue courts in terms of the Legal Remembrancer
Manual.
G
Appointment of Public Prosecutor is governed by the Code of Criminal
Procedure, 1973. The State ofUttar Pradesh, however, amended Section 24 of H
570
SUPREME COURT REPORTS [2004] SUPP. I S.C.R.
A the Code of Criminal Procedure in terms whereof the requirements to consult
the High Court for appointment of Public Prosecutors for the High Court as
contained in sub-section (1) of Section 24 as also sub-sections (4), (5) and
(6) thereof were deleted. Renewal of terms of the District Government Counsel,
are, however, governed by Legal Remembrancer Manual.
B
The first respondent herein was appointed as District Government
Counsel.(DGC) (Criminal) at Meerut on or about 7.01.1983. The said post is
deemed to be that of Public Prosecutor '"'.ithin the meaning of Section 24 of
the Code of Criminal Procedure. His term was renewed by an order dated
12.03.1996. He was again appointed in the same capacity by an order dated
C 17 .09.1997 for a period of one year. Before expiry of the said period, the
respondent applied for renewal of his tenure. Allegedly, the District Judge and
the District Magistrate did not recommend therefor. The State Government
decided not to renew the term of the respondent as DGC (Criminal) and by
an order dated 18.9.1998 he was relieved from the charge of the said post. By
a notification dated 17 .09 .1998, the vacancy was advertised w!tereafter the
D respondent filed a writ petition before the Allahabad High Court inter a/ia
praying for quashing the said order dated 18.09.1998. In the said writ petition,
the contention of the respondent was that as the District Magistrate as also
the District Judge had recommended for renewal of his tenure as DGC (Criminal)
having found his conduct and work satisfactory, the renewal ought to h~ve
E been granted as a matter of course.
Despite opportunities granted in that behalf, the appellants, ho".Vever,
did not file any return.
By reas_on of judgment dated 11.12.1998, a Division Bench of t~e
F Allahabad High Court allowed t~e said writ application holding:
"In the present case the District Judge has recommended in favour of
the petitioner and no good or cogent reason has been assigned for
rejecting the recommendation of the District Judge. Hence we direct
the petitioner's term as DGC (Criminal) to be renewed forthwith by the
G
State Government."
H
The learned Judges further opined:
"The Supreme Court has observed in Special Reference No. I of 1998
that the Chief Justice of India means not the Chief Justice of India
alone but in consultation with his four senior most colleagues. No
STATE v. JOHRI MAL [SINHA, J.]
571
doubt this judgment was given in the context of appointments of A
Judges in the Supreme Court and High Courts, but in our opinion the
spirit of the judgment is applicable to the present case also since the
intention was to keep the administration of justice away from political
considerations. Hence in our opinion the District Judge should not
make the recommendation alone but in consultation with the two
senior most Judicial Officers in the District Court and also the CJM B
in the case of recommendations for appointments in the Criminal side,
and the senior most Civil Judge for appointments on the Civil side,
and also the District Magistrate. In other words the recommendation
shall be by a collegium headed by the Oistrict Judge and consisting
of the above mentioned five members (consisting of four judicial C
officers and the District Magistrate). If two members disapprove the
name, no recommendation will be made. No name will be recommended
if the District Judge disapprov~s. This, in our opinion, will be in
· accordance with the norms laid down in the L.R. Manual. Such a
recommendation will ordinarily be treated as binding on the Government
unless for some strong, cogent reasons to be recorded in writing if D
the Government disagrees. We again make it clear that the
recommendation must be made purely on merit and competence
ignoring caste, creed, religion or political affiliation."
Contending that the said judgment contains an error of record as the
case of the first respondent had not been recommended by the District Judge E
or the District Magistrate concerned, an application for recalling of the ,
judgment was filed by the appellant herein but the same was disposed of ,
directing that the question regarding renewal of the respondent's term as DGC
(Criminal) shall be considered afresh by the collegium headed by the District
Judge constituted in the said judgment and the State Government shall act F
on the recommendations thereof.
SUBMISSIONS:
Mr. Ashok Kumar Srivastava, learned counsel, appearing on behalf of
the appellant, would urge that the High Court proceeded on a wrong premise G
that the recommendations for renewal of terms of D.G.C. (Crl.) had been made
by the District Magistrate in favour of the first respondent. Our attention in
this behalf has been drawn to the opinion of the District Judge dated I I th
September, 1998 as also the letter of the District Magistrate, Meerut, addressed
to the Principal Secretary, Justice and Legal Remembrancer, Government of H
572
SUPREME COURT REPORTS (2004) SUPP. I S.C.R.
A Uttar Pradesh, Lucknow, dated 12.9.1998.
The learned counsel would submit that as the appointment of public
prosecutor is governed by the provisions of the Code of Criminal Procedure
and renewal thereof by the Uttar Pradesh Legal Remembrancer, the High Court
committed a manifest error in directing constitution of a collegium headed by
B a member of Judiciary ..
Mr. Srivastava would argue that having regard to the fact that
professional engagement of a lawyer cannot be equated with appointment on
a civil post as there exists a relationship of cl!ent and the lawyer between the
State and the public prosecutor, the High Court was not correct in issuing the
C impugned directions. Reliance in this behalf has been placed on Harpal Singh
Chauhan and Ors. v. State of U.P .•. [1993) 3 SCC 552, State of U.P. and Ors.
v. U.P. State Law Officers Association and Ors., [1994) 2 SCC 204 and State
ojU.P. v. Ramesh Chandra Sharma and Ors., [1995) 6 SCC 527.
D
Mr. Ranjit Kumar, learned senior counsel, appearing on behalf of the
respondent, on the other hand, would submit that the High Court felt the need
to constitute a collegium keeping in view of the fact that the action on the
part of the State in appointment and/ or renewal of the DGCs was found to
be arbitrary.
E
The learned counsel would submit that the public prosecutors look after
the prosecution works and, thus, the nature of office would be a public in
nature having regard to the fact that they discharge public functions.
Statutory Provisions:
F
Sub-Sections (2) to (6) of Section 24 of Code of Criminal Procedure read
thus:
G
"(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 Govternment shall appoint a Public
Prosecutor and may also appoint one or more Additional l'ublic
Prosecutors for the district.
Provided that the Public Prosecutor or Additional Public Prosecutor
H
appointed for one district may be appointed also to be a Public
STATE v. JOHRI MAL [SINHA, J.]
573
Prosecutor or an Additional Public Prosecutor, as the case may be, for A
another district.
(4) The District Magistrate shall, in consultation with the Sessions
Judge, prepare a panel of names of persons, who are, in his opinion,
fit to be appointed as Public Prosecutor or Additional Public
Prosecutors for the district.
B
(5) No person shall be appointed by the State Government as the
Public Prosecutor or. Additional Public Prosecutor for the district
unless his name appears in the panel of names prepared by the
District Magistrate under sub-section (4).
(6) Notwithstanding anything contained in sub-section (5), where in
a State there exists a regular Cadre of Prosecuting Officers, the State
Government shall appoint a Public Prosecutor or an Additional Public
Prosecutor only from among the persons constituting such Cadre:
c
· Provided that where, in the opinion of the State Government, no D ·
suitable person is available in such Cadre for such appointment that
the Government may appoint a person as Public Prosecutor or
Additional Public Prosecutor, as the case may be, from the panel of
names prepared by the District Magistrate under sub-section (4)."
However, the State of U.P. by Act No. 18 of 1991 with effect from E
16.2.1991 amended Sub-Section (I) of Section 24 of the Code of Criminal
Procedure in the following terms:
"in sub-section (I), the words "after consultation with the High Courts"
shall be omitted;"
By reason of the said Act, Sub-Sections (4), (5) and (6) of Section 24
have also been omitted.
F
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 G
may be assigned to them either generally, or specially by the Government. The
legal practitioner appointed to conduct civil, criminal or revenue cases, shall
be known as District Government Counsel (Civil), (Criminal) or (Revenue), as
the case may be.
H
574
SUPREME COURT REPORTS [2004) SUPP. I S.C.R.
A
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
B 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 SubDistrict Government Counsel. Clause (3) of Para 7.03 reads thus:
c
D
E
F
"(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:
Provided that it will also be open to the District Officer to recommend
the name of any person, who may be considered fit, even though he
may not have formally supplied his bio data for being considered for
appointment. The willingness of such a person to accept the
appointment, if made shall, however, be obtained before his name is
recommended."
Para 7 .04 of the said Manual provides that on receipt of the
recommendations C1fthe District Officer, the Legal Remembrancer may make
further enquiry and submit the recommendations as also for orders of the
G 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.
Paras 7.06, 7.07 and 7.08 read thus:
H
"7 .06. Appointment and renewal- (I) The legal practitioner finally
•.
•
STATE v. JOHRI MAL [SINHA, J.]
575
selected by the Government may be appointed District Government A
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 , B
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. l 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.
C
(3) The appointment 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 D
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 as they work as such; otherwise
they shall incur a disqualification to hold the post.
E
Note: The term political activity includes membership of any political
party or local body as also press reporting work.
7.08. Renewal ofterm-(l) 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 E
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.
G:
(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 H
576
SUPREME COURT REPORTS [2004] SUPP. I S.C.R.
A
a District Government Counsel -
(0
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
B
conduct; and
•
c
D
E
(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 Govemme~t 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 appointinent of a District
Government Counsel."
A supplementary provision has been made in Chapter XXI of the said
Manual for appointment and renewal of the post of public prosecutors. It
inter a/ia contains the guidelines and clarifies that the appointment of DGC
/ (Criminal), the change of designation of the public prosecutors could not
F effect the basic m~ture of their professional engagement. It further provides
that such professional engagement is teim~nated on either side without notice
and without assigning any reason.