2004 Supreme(SC) 541

2004(4) Supreme 149
Supreme Court of India
(From Allahabad High Court)
V.N. Khare, CJI., Brijesh Kumar & S.B. Sinha, JJ.
State of U.P. & Anr. -Appellants
versus
Johri Mal -Respondent
Civil Appeal Nos. 963-64 of 2000
With
Civil Appeal Nos. 967, 968, 970, 976-77, 975, 972, 973, 969, 974, 971, 965, 966 of 2000
And
Civil Appeal No. 6549 of 1999
Decided on 21-4-2004
Counsel for the Parties :
For the Appearing Parties : Ranjit Kumar, R.C. Srivastava, Sr. Advocates, Ashok K. Srivastava, R.N. Keshwani, Advocate (NP), Ms. Binu Tamta, J.M. Sharma, Ms. Abha R. Sharma, Ms. Sandhya Goswami, T.N. Singh, S.P. Sharma, Ashwini Bhardwaj, Abhishek Atrey, Subrat Birla, S.C. Biral, Y.P. Dhamija, Ms. Rachna Srivastava, Advocates.

Important point
While making appointments of District Government Counsel, the State should give primacy to the opinion of the District Judge and the action of the State would not be dubbed as politically motivated or otherwise arbitrary.

Headnote:(i) Criminal Procedure Code, 1973 -Sections 24(2) to (6)-Legal Remem­brancer’s Manual relating to appointment and renewal of term of District Government Counsel-Interpretation of-State of Uttar Pradesh amended Section 24 Cr.P.C.-Requirements to consult the High Court for appointment of Public Prosecutors for the High Court deleted-Deletion of sub-sections (4), (5) and (6) of Section 24 on ground that similar provisions exist in Legal Remembrancer Manual-However Legal Remembrancer Manual providing for renewal is not a law-It contains executive instructions-Scope of powers of judicial review-Administrative Law -Constitution of India-Article 226.

       Held : The appointment of Public Prosecutors, on the other hand, are governed by the Code of Criminal Procedure and/or the executive instructions framed by the State governing the terms of their appointment. Proviso appended to Article 309 of the Constitution of India 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 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. So long as in appointing a counsel the procedures laid down under the Code of Criminal Procedure are followed and a reasonable or fair procedure is adopted, the Court will normally not interfere with the decision. The nature of the office held by a lawyer vis-a-vis the State being in the nature of professional engagements, the courts are normally charry to over-turn any decision unless an exceptional case is made out. The question as to whether the State is satisfied with the performance of its counsel or not is primarily a matter between it and the counsel. The Code of Criminal Procedure does not speak of renewal or extension of tenure. The extension of tenure of public prosecutor or the district counsel should not be compared with the right of renewal under a licence or permit granted under a statute. The incumbent has no legal enforceable right as such. The action of the State in not renewing the tenure can be subjected to judicial scrutiny inter alia on the ground that the same is arbitrary. The courts normally would not delve into the records with a view to ascertain as to what impelled the State not to renew the tenure of a public 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’ (Paras 39 and 40)

       It may be true that the Legal Remembrancer Manual provides for renewal but it contains executive instructions which even do not meet the requirements of clause (3) of Article 166 of the Constitution. Legal Remembrancer Manual is not a law within the meaning of Article 13 of the Constitution of India. [See Union of India vs. Naveen Jindal & Anr. - JT 2004 (2) SC 1]. The State, however, 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 fulfill its duty to uphold the rule of law; (iii) its accountability to the public; and (iv) expenditure from the tax payers’ money. Only when good and competent counsel are appointed by the State, the public interest would be safeguarded. The State while appointing the public prosecutors must bear in mind that for the purpose of upholding the rule of law, good administration of justice is imperative which in turn would have a direct impact on sustenance of democracy. 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. The State should replace an efficient, honest and competent lawyer, inter alia, when it is in a position to appoint a more competent lawyer. In such an event, even a good performance by a lawyer may not be of much importance. However, malice in law can also be a ground for judicial review. (Paras 42 to 45)

       (ii) Criminal Procedure Code, 1973 -Section 24-Legal Remembrancer’s Manual relating to appointment and renewal of term of District Government Counsel-Non renewal of term of District Government Counsel-Challenged-Appointment of respondent as District Government Counsel (DGC)-Renewal of his term-He was again appointed in the same capacity for a period of one year-He again applied for renewal of his tenure-Allegedly, District Judge and District Magistrate did not recommended his renewal-Respondent relieved from the charge of the said post-Vacancy advertised-Order challenged-Writ petition allowed-High Court held that District Judge had recommended in favour of petitioner and no good or cogent reason has been assigned for rejecting recommendation of District Judge-Error of record-Case of respondent was not recommended by the District Judge or District Magistrate-Whether High Court was justified in directing that question regarding renewal of respondent shall be considered afresh by the colleguim headed by District Judge-(No)-High Court has no jurisdiction to direct formulation of a new legal ­principle.

       Held : The very 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. 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. (Paras 50 and 51)

       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. 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. 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 like Code of Criminal Procedure. (Paras 55 to 57)

       (iii) Criminal Procedure Code, 1973-Section 29-District Government Counsel-Nature of offfice-Role in administration of justice-Concept of public office-Appointment in such a post must not be political-State is not expected to rescind the appointments with the change in the Government.

       Held : The District Government counsel appointed for conducting civil as also criminal cases hold offices of great importance. They are not only officers of the court but also the representative of the State. The court reposes a great deal of confidence in them. Their opinion in a matter carries great weight. They are supposed to render independent, fearless and non-partisan views before the court irrespective of the result of litigation which may ensue. The Public Prosecutors have greater responsibility. They are required to perform statutory duties independently having regard to various provisions contained in the Code of Criminal Procedure and in particular Section 320 thereof. The public prosecutors and the Government counsel play an important role in administration of justice. Efforts are required to be made to improve the management of prosecution in order to increase the certainty of conviction and punishment for most serious offenders and repeaters. 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. The prosecutors are required to play a significant role in the administration of justice by prosecuting only those who should be prosecuted and releasing or directing the use of non-punitive methods of treatment of those whose cases would best be processed. The District Government Counsel represent the State. They, thus, represent the interest of general public before a court of law. The Public prosecutors while presenting 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 minimized. The holders of the post have a public duty to perform. Public element is, thus, involved therein. (Paras 71 to 74)

       The appointment in such a post must not be political one. The Manual states that a political activity by the District Government Counsel shall be a disqualification to hold the post. We cannot but express our anguish over the fact that in certain cases recommendations are made by the District Magistrate having regard to the political affinity of the lawyers to the party in power. Those who do not have such political affinity although competent are not appointed. Legal Remembrancer’s 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. (Paras 76 and 77)