IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 2308 OF 2007 (MS) Mani Ram Upadhyay …………Petitioner. Versus State of Uttarakhand and others. …….Respondents. Mr. Rakesh Thapliyal, Advocate for petitioner. Mr. K.P.Upadhyay, Addl. Chief Standing Counsel for State of Uttarakhand / respondents. 16th March, 2009 Hon’ble Sudhanshu Dhulia, J. The petitioner was an Assistant District Government Counsel (Civil) in District Tehri Garhwal (hereinafter referred to as ADGC) . Vide order dated 8.10.2007, the Addl. Secretary Law to the Government of Uttarakhand terminated further engagement of the petitioner as ADGC (Civil). Aggrieved, the petitioner has filed present writ petition. 2. The main contention of the petitioner is that he was engaged as ADGC (Civil) vide order dated 14.1.2003 for a period of one year. Further vide order dated 7.1.2004, his engagement was extended upto 12.1.2005 (i.e. for further period of one year). Subsequently, vide order dated 10.2.2005, the petitioner was engaged as ADGC for a period of further five years. It is this period, which was in fact to continue till the year, 2010, which has been cut short by the Government vide order dated 8.10.2007. Hence aggrieved, the petitioner has filed the present writ petition challenging the said order. 2 3. The main argument of the petitioner is that while passing the order dated 8.10.2007, the Law Secretary relied upon the report of the District Magistrate, Tehri Garhwal and has not consulted the District Judge, Tehri Garhwal, which was a mandatory requirement and since there is no effective consultation of the District Judge in this regard, the order dated 8.10.2007 is bad in the eyes of law. 4. The brief background, which has resulted in the order dated 8.10.2007 is necessary to be explained in the order for a proper perspective of the matter. While the petitioner was engaged as ADGC (Civil) and was defending the State Government, an injunction order dated 13.7.2005 was passed in Civil Suit No. 25 of 2005. As the said order dated 13.7.2005 was not complied with, Civil Judge passed an order on 22.12.2005 awarding one month civil imprisonment to the respondents, which included the then District Magistrate of Tehri Garhwal. Consequently, however, the State Government challenged this order in an appeal and the appeal was allowed vide order dated 24.6.2006. All the same, certain remarks were made in the order by the learned District Judge, which vide the same order of the learned District Judge were also sent to Secretary Law, District Magistrate concerned and so on, for necessary action to be taken. Consequently, the District Magistrate relying upon the judgment of the learned District Judge, forwarded letter to the State Government saying that the performance of the petitioner is not upto the mark and therefore, an appropriate action be taken in this regard. In his judgment, the District Judge has hinted that effective arguments were not made from the side of the ‘State’, 3 which was represented by the petitioner. However, there is no aspersion or remark on the character of the petitioner per se. The District Magistrate has remarked that on a question of fact, the petitioner could not come up with any reply and the information was given to the learned Judge from elsewhere. The District Magistrate in turn relying upon the remark in the judgments, recommended the removal of the petitioner as ADGC and wrote to the government. Now, the proactiveness of the District Magistrate in the matter is not hard to locate as in the same matter the court below had passed orders in contempt sending this District Magistrate to civil imprisonment for one month in a case, where the District Magistrate was represented by the petitioner and therefore, the argument of the petitioner that the District Magistrate had a bias against the petitioner is not without substance and this is also true that while dispensing with the services of the government have relied upon the recommendations of the District Magistrate. 5. The Government thereafter gave a show cause notice to the petitioner on 22.2.2006 asking him to explain his stand. The petitioner vide his reply dated 27.2.2006 stated that he has been defending the State Government with his full ability and knowledge and with his absolute integrity and if there are anything found against him in the order, those are personal in nature and no reliance should be placed upon it and the State Government vide its order dated 8.10.2007 disengaged the service of the petitioner. 4 6. Now, it has to be seen that there is any specific consultation with the State Government. This Court finds that the District Judge himself in the order dated 24.6.2006 has recommended to the State Authorities to take appropriate action. Although, this Court is of the view that no aspersion, or adverse remark can be derived out of the judgment of the learned District Judge. This Court indeed feels that the remarks of either the learned District Judge or the District Magistrate can or should be treated as against the character of the petitioner as an advocate. However, this Court is also aware that the relationship between the State Government and that of the ADGC is also a fiduciary relationship. It is a relation of trust and if for any reason, the Government feels that the services of a particular ADGC are not required, for which a show cause notice is given to the ADGC, and his services are terminated, this Court finds no anomaly in the same. In fact the controversy in the present matter stands settled by a decision of the Hon’ble Supreme Court in the case of State of U.P. and another Vs. Johri Mal reported in (2004) 4 SCC 714. In the said seminal judgment, the Hon’ble Supreme Court had emphasized that merit should be the sole criteria in appointment of State Counsels and Public Prosecutors and their terms should not change with mere change of governments and however, having stated this, the Apex Court had also underlined that a distinction must be made between a service and a professional engagement. The Hon’ble Supreme Court in paragraph 75 of the said judgment has observed as under: “75. In the matter of engagement of a District Government Counsel, however, a concept of public office does not come into play. However, it is true that in the 5 matter of counsel, the choice is that of the Government and none can claim a right to be appointed. That must necessarily be so because it is a position of great trust and confidence. The provision of Article 14, however, will be attracted to a limited extent as the functionaries named in the Code of Criminal Procedure are public functionaries. They also have a public duty to perform. If the State fails to discharge its public duty or acts in defiance, deviation and departure of the principles of law, the court may interfere. The court may also interfere when the legal policy laid down by the Government for the purpose of such appointments is departed from or mandatory provisions of law are not complied with. Judicial review can also be resorted to, if a holder of a public office is sought to be removed for reason dehors the statute.” 7. It is indeed true that the Hon’ble Supreme Court in the said judgment has also emphasized the effective consultation between the District Judge and the District Magistrate for appointment of Government Counsels, however, this Court does not find any aspect in the said judgment, which would help the case of the petitioner as a clear distinction has been drawn by the Hon’ble Supreme Court between an ordinary service and a professional engagement. Indeed there is a public element involved in the appointment of Government counsels, however, this itself does not call for any interference in the present matter. 8. It is made clear that the decision to terminate or cut short the service of the petitioner as ADGC in this case in no manner affect the merit or integrity of the petitioner as 6 an advocate and this would not be treated to be in any way adverse on the character of the petitioner. 9. For the reasons recorded above, the order dated 8.10.2007 requires no interference. Writ petition is dismissed. No order as to costs. (Sudhanshu Dhulia,J.) 16.3.2009 Rathour 7 6. Now, it has to be seen that there is any specific consultation with the State Government. This Court finds that the District Judge himself in the order dated 24.6.2006 has recommended to the State Authorities to take appropriate action. Although, this Court is of the view that no aspersion, or adverse remark can be derived out of the judgment of the learned District Judge. This Court indeed feels that the remarks of either the learned District Judge or the District Magistrate can or should be treated as against the character of the petitioner as an advocate. However, this Court is also aware that the relationship between the State Government and that of the ADGC is also a fiduciary relationship. It is a relation of trust and if for any reason, the Government feels that the services of a particular ADGC are not required, for which a show cause notice is given to the ADGC, and his services are terminated, this Court finds no anomaly in the same. In fact the controversy in the present matter stands settled by a decision of the Hon’ble Supreme Court in the case of State of U.P. and another Vs. Johri Mal reported in (2004) 4 SCC 714. In the said seminal judgment, the Hon’ble Supreme Court had emphasized that merit should be the sole criteria in appointment of State Counsels and Public Prosecutors and their terms should not change with mere change of governments and however, having stated this, the Apex Court had also underlined that a distinction must be made between a service and a professional engagement. The Hon’ble Supreme Court in paragraph 74 of the said judgment has observed as under: 8 “74. The District Government Counsel represent the State. They, thus, represent the interest of the general public before a court of law. The Public Prosecutors while representing the prosecution case have a duty to see that innocent persons may not be convicted as well as an accused guilty of commission of crime does not go unpunished. 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 democracy lies in their hands. The Government Counsel, thus, must have character, competence, sufficient experience as also standing at the Bar. The need for employing meritorious and competent persons to keep the standard of the high offices cannot be minimised. The holders of the post have a public duty to perform. Public element is, thus, involved therein.” 7. It is indeed true that the Hon’ble Supreme Court in the said judgment has also emphasized the effective consultation between the District Judge and the District Magistrate for appointment of Government Counsels, however, this Court does not find any aspect in the said judgment, which would very much help the case of the petitioner as a clear defiance has been made by the Hon’ble Supreme Court between an ordinary service and a professional engagement. Indeed there is a public element involved in the appointment of Government counsels, but to such a limited extent no interference is called for in the present matter. 8. It is made clear that the decision to terminate or cut short the service of the petitioner as ADGC in this case in no manner affect the merit or integrity or the performance of the petitioner. 9 9. For the reasons recorded above, the order dated 8.10.2007 requires no interference. Writ petition is dismissed. No order as to costs. (Sudhanshu Dhulia,J.) 16.3.2009 Rathour 10 6. Now, it has to be seen that there is any specific consultation with the State Government. This Court finds that the District Judge himself in the order dated 24.6.2006 has recommended to the State Authorities to take appropriate action. Although, this Court is of the view that no aspersion, or adverse remark can be derived out of the judgment of the learned District Judge. This Court indeed feels that the remarks of either the learned District Judge or the District Magistrate can or should be treated as against the character of the petitioner as an advocate. However, this Court is also aware that the relationship between the State Government and that of the ADGC is also a fiduciary relationship. It is a relation of trust and if for any reason, the Government feels that the services of a particular ADGC are not required, for which a show cause notice is given to the ADGC, and his services are terminated, this Court finds no anomaly in the same. In fact the controversy in the present matter stands settled by a decision of the Hon’ble Supreme Court in the case of State of U.P. and another Vs. Johri Mal reported in (2004) 4 SCC 714. In the said seminal judgment, the Hon’ble Supreme Court had emphasized that merit should be the sole criteria in appointment of State Counsels and Public Prosecutors and their terms should not change with mere change of governments and however, having stated this, the Apex Court had also underlined that a distinction must be made between a service and a professional engagement. The Hon’ble Supreme Court in paragraph 74 of the said judgment has observed as under: “74. The District Government Counsel represent the State. They, thus, represent the interest of the general public before a court of law. The Public Prosecutors 11 while representing the prosecution case have a duty to see that innocent persons may not be convicted as well as an accused guilty of commission of crime does not go unpunished. 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 democracy lies in their hands. The Government Counsel, thus, must have character, competence, sufficient experience as also standing at the Bar. The need for employing meritorious and competent persons to keep the standard of the high offices cannot be minimised. The holders of the post have a public duty to perform. Public element is, thus, involved therein.” 7. It is indeed true that the Hon’ble Supreme Court in the said judgment has also emphasized the effective consultation between the District Judge and the District Magistrate for appointment of Government Counsels, however, this Court does not find any aspect in the said judgment, which would very much help the case of the petitioner as a clear defiance has been made by the Hon’ble Supreme Court between an ordinary service and a professional engagement. Indeed there is a public element involved in the appointment of Government counsels, but to such a limited extent no interference is called for in the present matter. 8. It is made clear that the decision to terminate or cut short the service of the petitioner as ADGC in this case in no manner affect the merit or integrity or the performance of the petitioner. 12 9. For the reasons recorded above, the order dated 8.10.2007 requires no interference. Writ petition is dismissed. No order as to costs. (Sudhanshu Dhulia,J.) 16.3.2009 Rathour 13 14