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

The State of Uttar Pradesh appoints District Government Counsel (DGC) for civil, criminal and revenue courts in terms of the Legal Remembrancer Manual.3. Appointment of Public Prosecutor is governed by the code of Criminal Procedure, 1973. The State of Uttar Pradesh, however, amended Section 24 of 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.4. The first respondent herein was appointed as District Government Counsel (DGC) (Criminal) at Meerut on or about 7.1.1983. The said post is deemed to be that of Public Prosecutor within the meaning of Section 24 of the Code of Criminal Procedure. His term was renewed by an order dated 12.3.1996. He was again appointed in the same capacity by an order dated 17.9.1997 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 relied from the charge of said post. By a notification dated 17.9.1998, the vacancy was advertised whereafter the respondent filed a writ petition before the Allahabad High Court inter alia praying for quashing the said order dated 18.9.1998. 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 have been granted as a matter of course.5. Despite opportunities granted in that behalf, the appellants, however, did not file any return.6. By reason of judgment dated 11.12.1998, a Division Bench of the Allahabad High Court allowed the said writ applicationthe 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 petitioners term as DGC (Criminal) to be renewed forthwith by the State Government.The learned Judge furtherSupreme Court has observed in Special Reference No.1 of 1996 that the Chief Justice of India means not the Chief Justice of India alone but in consultation with his four senior most colleagues. No doubt this judgment was given in the context of appointments of judges in the Supreme Court and High Courts, but in our opinion that 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 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 District Judge and consisting of the above mentioned five members (consisting of four judicial officers and the District Magistrate). If two members disapprove the name no recommendation will be made. No name will be recommended i the District Judge disapproves. 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 the Government disagrees. We again make it clear that the recommendation must be made purely on merit and competence ignoring caste, creed, religion or politicalthat the said judgment contains an error of record as the case of the first respondent had not been recommended by the District Judge 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 respondents term a 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 on the recommendations thereof

Court's reasoning:
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,