Case: State Of U.P.  Vs. Ashok Kumar Nigam

4. Mr. Ashok Kumar Nigam, respondent herein was appointed as District Government Counsel on 17th September, 2004 vide a notification issued by the State Government. The term of the said respondent was renewed on 3rd March, 2006 for a period of one year and as such his term came to an end on 5th March, 2007. The respondent submitted his application for renewal of his term on 19th January, 2007. The District Judge, Lucknow on 26th February, 2007 gave his report and the District Magistrate also submitted his report on 5th March, 2007 recommending the renewal of the term of the respondent. However, the State Government, appellant herein, vide order dated 3rd April, 2008 refused his renewal which resulted in cancellation of engagement of the said respondent. The order dated 3rd April, 2008 can usefully be reproduced at thisSuresh BabuDeputy SecretaryGovernment of Uttar PradeshToThe District MagistrateLucknowNyay-Anubhag-3-Appointment Lkw, dated 3.4.2008Sub: Renewal of Tenure of engagement of District GovernmentCounsels at the District LevelSir,With reference to your Letter No. 855/JA(2)/Advocate-Renewal/07 dated 5.3.2007, I have been directed to say that after due consideration, theGovernor had kindly ordered not to renew the tenure of engagement of Sh. Ashok Kumar Nigam, as District Government Counsel (Criminal), Lucknow.Accordingly, in the aforesaid background, the engagement order of Sh. Ashok Kumar Nigam, as District Government Counsel is hereby terminated.Please take necessary action at your end and forward your proposal from the panel of Advocates for being engaged as District Government Counsel against the consequential vacancy.Aggrieved from the above order, the respondent filed writ petition before the High Court of Allahabad, Lucknow Bench. In the writ petition, the stand taken by the respondent was that in terms of the rule, the petitioner has a right to continue and in any case for consideration of renewal of his term, the impugned order does not state any reasons and, in fact, does not take into consideration the recommendations made by the District and Sessions Judge and the District Magistrate, who had recommended renewal of the term of the respondent. The High Court after hearing the counsel appearing for the parties, vide its judgment dated 14th October, 2009, allowed the writ petition, setting aside the order dated 3rd April, 2008 and even granting further relief to the appellant. The operative part of the High Court judgment reads asthe reasons stated above, the order impugned dated 03.04.2008 is hereby set aside.We are informed that no person has yet been appointed or engaged in place of the petitioner, in view of the interim order passed by this Court, we, therefore, further provide that the petitioner shall be allowed to continue to discharge the functions and duties of the District Government Counsel, till the consideration of the renewal of his term in accordance with law.We may further clarify that the renewal of theterm shall be considered in accordance with the relevant provisions of L.R. manual (unamended para 7.08 as the amendments made in L.R. Manual are subject matter of challenge in W.P. No. 7851 (M/B) of 2008 wherein the implementation of the amended provisions stand stayed) if he has not crossed the age of 60 years but if he has already attained the age of 60 years, but has not yet reached the age of 62 years then his case will be considered for extension of his term upto the age of 62 years and for that consideration, if any further formalities are to be completed or some certificates are needed, he shall be given an opportunity to furnish the same, so that his case may be considered in accordance with the relevant rules. Writ petition is allowed. Cost easy.Aggrieved from the above judgment of the High Court, the State of Uttar Pradesh (appellant herein) has filed the present appeal before this Court.

Reasoning:
10. From the above rules, it is clear that the government counsel has to be appointed and/or his term renewed upon recommendation of the District Judge and the District Officer and in accordance with the procedure prescribed under the above rules. It is only when the recommendations based upon stated criteria are unfavourable to the applicant in question that the government could decline renewal of the term. In the present case, we are not concerned with the appointment as such. All the cases in hand are cases of renewal of term.The High Court had examined the records and after being satisfied that the record produced did not exhibit proper application of mind or due consideration as per prescribed procedure and the action being arbitrary, had set aside the order dated 3rd April, 2008. There is nothing on record placed before this court by the appellant that could demonstrate that such view of the High Court suffered from any infirmity. The prescribed procedures under para 7.08 of the Manual requires the government to invite to invite opinion of the District Judge and District Officer, three months prior to the expiry of the term of the District Government Counsel. By amendment, proviso was added to para 7.03 to provide that District Magistrate shall always be free to nominate such person who may be found eligible but who had not submitted particulars for being appointed as such. As per the prescribed procedure, the office of Legal Remembrance was expected to consider the past record of work and conduct of the concerned District Government Counsel and then to send a report together with the statement of work done by such applicant. The High Court had clearly stated the principle that where there is conflict between the recommendation of the District Judge and the District Magistrate, primacy shall be given to the report of the District Judge. Thus, in our opinion, the onus is shifted to the State to show that it had acted in accordance with the prescribed procedure and its action does not suffer from the vice of discrimination and arbitrariness.Thus, in our opinion it was not permissible for the government to take recourse to Para 7.06 (3) in the manner in which it has done and in any case, the said rule can hardly be sustained in law.