Case: State of U.P. &amp; Another Vs. Johri Mal

of the lawyers to the party in power. Those who do not have such political affinity although competent are not appointed. Legal Remembrancers Manual clearly forbids appointment of such a lawyer and/or if appointed, removal from his office. The District Judge and the District Magistrate, therefore, are duty bound to see that before any recommendation is not made, or any political affinity. They must also bear in mind that the Manual postulates that any lawyer who is guilty of approaching the authorities would not be entitled to be considered for such appointment. 80. The State, therefore, is not expected to rescind the appointments with the change in the Government. The existing panel of the District Government Counsel may not be distributed and a fresh panel come into being, only because a new party has taken over change of the Government. SUBMISSIONS OF BIO-DATA: 81. During hearing of a matter, a question arose as to whether submission of bio data pursuant to issuance of a notice therefor by the District Magistrate or the District Judge would amount to soliciting briefs within the meaning of Rule 36 of the Bar Council of India Rules or not. 82. The question came up for consideration before a Full Bench of the Andhra Pradesh High Court in R. Rajeswar Reddy and others vs. K. Narasimhachari and others [2001 (6) ALT 104 ]. The Court noticed: "15. It may not always be possible for the District and Sessions Judge to have enough time to know all the advocates who are fit to be appointed as Public Prosecutors. He, therefore, may be entitled to consult his colleagues particularly when Additional Public Prosecutors are required to be appointed in their Courts also.16. Before such recommendations are made the District and Sessions Judge and his colleagues, appear to have called for applications for making the things more transparent. It is true the post of the Public Prosecutor occupies a high position in the scheme of criminal justice delivery system. His honesty, impartiality, firmness and other qualities will have to be taken into consideration." 83. Referring to the judgment of this Court in Harpal Singh Chauhan (supra), the High Court held that filing of such applications on the part of the advocate would not attract the vice of Rule 36 as the advocates would not file any application on their own. PROVISO TO PARA 7.03(3): 84. We may also notice that according to Mr. Ranjit Kumar, learned senior counsel, the proviso appended to clause (3) of Para 7.03 is being misused. 85. The proviso evidently was inserted with a noble purpose. Such a provision 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 Counsel despite calling for applications by the District Magistrate in this behalf. The District Magistrate in a given situation may have to persuade very competent persons to take the offer in public interest as also in the interest of the State. But recourse to the said provision cannot be resorted to for general appointments. The said proviso must be taken recourse to only in very very exceptional cases. Even in relation thereto, consultation with the District Judge should be held to be imperative. CONSULTATION: 86. Keeping in mind the aforementioned legal principles the question which arises for consideration in these appeals is, the nature and extent of consultation a Collector is required to make with the District Judge. 87. The age-old tradition on the part of the State in appointing the District Government Counsel on the basis of the recommendations of the District Collector in consultation with the District Judge is based on certain principles. Whereas the Distinct Judge is supposed to know the merit, competence and capability of the concerned lawyers for discharging their duties the District Magistrate is supposed to know their conduct outside the court vis-Ã -vis the victims of offences, public officers, witnesses etc. The district Magistrate is also supposed to know about the conduct of the Government counsel as also their integrity.88. We are also pained to see that the State of Uttar Pradesh alone had amended sub-section (1) of Section 24 and deleted sub-sections (3), (4) and (5) of Section 24 of the Code of Criminal Procedure. Evidently, the said legislative step had been taken to overcome the decision of this Court in Kumari Shrilekha Vidyarthi (supra). We do not see any rationale in the said action. The learned counsel appearing for the State, when questioned, submitted that such a step had been taken having regard to the fact that exhaustive provisions are laid down in Legal Remembrancer Manual which is a complete code in itself. We see no force in the said submission 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. Executive instructions, it is beyond and cavil, do not carry the same status as of a statute.89. The State should bear to mind the dicta of this Court in Mundrika Prasad Singh (supra) as regard the necessity in consult the District Judge. While making appointments of District government Counsel, therefore, the 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 arbitrary. As noticed hereinbefore, there also does not exist any rationale behind deletion of the provision relating to consultation with the High Court in the matter of appointment of 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. CONCLUSION: 90.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]It appears that Shri K.S. Rakhra, District Judge, Meerut by his letter dated 11th September, 1998 addressed to the District Magistrate, Meerut although observed that the work and conduct of the respondent was satisfactory and he had not received any complaint in regard to his integrity, but it washowever, agree with your view that the work of the D.G.C. (Crl.) also requires effective control over his team and proper analysis of the result of the trial and follow up action including remedial steps to improve the efficiency of the prosecution as ahave no objection if Shri Johri Mal is replaced by some better and experienced person having good experience of conducting Sessions Trials and also having sufficient administrativevery premise whereupon the High Court has based its decisions, therefore, was incorrect. The impugned judgment, thus, cannot be sustained as it suffers from misdirection in law.52. A Public Prosecutor is not only required to show his professional competence but is also required to discharge certain administrative functions. The District Officer was of the opinion that in a district like Meerut the term of the appointment should not be extended as he has no effective control over the other ADGs for taking steps. The approach of the District Officer cannot be said to be wholly irrational. As noticed hereinbefore, the District Judge, Meerut has also agreed thereto. The action on the part of the State, therefore, cannot be said to be wholly without jurisdiction requiring interference by the High Court in exercise of its power of judicial review.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 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 of India 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.57. We would, however, like to lay stress on the fact, that the consultation with the District Judge must be an 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.58. The High Court failed to consider that the power under Article 226 of the Constitution of India is not at par with the constitutional jurisdiction conferred upon this Court under Article 142 of the Constitution of India. The High Court has no jurisdiction to direct formulation of a new legal principle or a new procedure which would be contrary to and inconsistent with a statutory provision lie Code of Criminal Procedure. (See State of Himachal Pradesh vs. A Present of a Student of Medical College, Simla and Others [(1985 3 SCC 169] and Asif Hameed and Others vs. State of Jammu & Kashmir and others [1989 Supp (2) SCC 364]).The age-old tradition on the part of the State in appointing the District Government Counsel on the basis of the recommendations of the District Collector in consultation with the District Judge is based on certain principles. Whereas the Distinct Judge is supposed to know the merit, competence and capability of the concerned lawyers for discharging their duties the District Magistrate is supposed to know their conduct outside the court vis-Ã -vis the victims of offences, public officers, witnesses etc. The district Magistrate is also supposed to know about the conduct of the Government counsel as also their integrity.88. We are also pained to see that the State of Uttar Pradesh alone had amended sub-section (1) of Section 24 and deleted sub-sections (3), (4) and (5) of Section 24 of the Code of Criminal Procedure. Evidently, the said legislative step had been taken to overcome the decision of this Court in Kumari Shrilekha Vidyarthi (supra). We do not see any rationale in the said action. The learned counsel appearing for the State, when questioned, submitted that such a step had been taken having regard to the fact that exhaustive provisions are laid down in Legal Remembrancer Manual which is a complete code in itself. We see no force in the said submission 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. Executive instructions, it is beyond and cavil, do not carry the same status as of a statute.89. The State should bear to mind the dicta of this Court in Mundrika Prasad Singh (supra) as regard the necessity in consult the District Judge. While making appointments of District government Counsel, therefore, the 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 arbitrary. As noticed hereinbefore, there also does not exist any rationale behind deletion of the provision relating to consultation with the High Court in the matter of appointment of 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.Acting pursuant to or in furtherance of the aforementioned recommendations of the District Judges, the District Magistrate in terms of his letter dated 12.9.1998 addressed to the Principal Secretary, Justice and Legal Remembrancer, Government of Uttar Pradesh, Lucknow stated,is submitted in aforesaid matter that Sri Johri Mal, Advocate, was engaged on the post of District Government Counsel (criminal), Meerut for the term upto 14.9.98 as per the order No. D 1880 [1] Seven-Judicial 3[42]/90 dated 17.9.97. After the term of Shri Johri Mal comes to an end, the post of District Government Counsel [Criminal] shall fall vacant w.e.f. 15.9.98. On analysis of work of Shri Johri Mal in a year, I felt that it shall not be proper to extend the period of Sri Johri Mal as District Government Council [Criminal] in a district like Meerut. He has no effective control over other ADGC for doing pairvi [taking steps]. Even necessary particulars are not collected for doing parvi. In order to make prosecutive more effective it was decided that three important cases be determined regular dated be fixed and same be got decided at the earliest, but such action could not be done effectively due to lack of co-ordination with the judicial officers. In toto his term as the District Government Counsel cannot be held as proper and satisfactory. District Judge has also consented to engage other appropriate D.G.C. at the place of Johri Mal and letter of opinion of the District Judge is enclosed.We may notice that one Shri Narendra Deo Chaubey, Under Secretary, Law Department, Government of Uttar Pradesh, Lucknow affirmed an affidavit in support of its application for recalling of the Order dated 11th December,