IMPORTANT POINT
Precedent and Stare decisis.
District Counsels do not have statutory rights to renewal of tenures.
Requirements of counsel to be appointed as District counsel discussed.

Headnote:Per Vikramajit Sen, J.
       (a) Administration of Justice – Precedent and Stare decisis – Principle of precedence evolved for imparting consistency, and certainty to judicial decisions – A smaller and later Bench has no freedom other than to apply the law laid down by the earlier and larger Bench – Pronouncement of law by a Division Bench of Supreme Court is binding on a Division Bench of the same or a smaller number of Judges – A decision to become binding precedent is not required to have been rendered by a Full Court or a Constitution Bench of the Supreme Court. (Para 10, 12)
       (1989) 2 SCC 754; (2002) 4 SCC 234; (2000) 1 SCC 644; (2001) 1 SCC 748 – Relied upon
       (b) Code of Criminal Procedure, 1973 – Section 24 and the Legal Remembrancer Manual – District Counsel are professionally engaged to the satisfaction of State Government – Courts must be circumspect in judicial review of such matters – District Counsels do not have statutory rights to renewal of tenures – It is at the discretion of State Government – Apart from curial performance of the advocates State Government’s trust and confidence in the person concerned is important for reappointment as District Counsel – Counsel should be person of integrity without criminal antecedents – Government counsel do not acquire any right to continuity – Considering re-appointment or renewal of existing Government Counsels not correct approach. (Para 15, 16)
       (2004) 4 SCC 714 – Relied upon
       (1991) 1 SCC 212; (1994) 2 SCC 204; (2011) 5 SCC 341; (1993) Supp 2 SCC 734; (1989) 2 SCC 691; (2005) 4 SCC 649; (2013) 3 SCC 372 – Referred
       Per Abhay Manohar Sapre, J.
       (c) Code of Criminal Procedure, 1973 – Section 24 and the Legal Remembrancer Manual – The issue of appointment, renewal, extension of tenure of Public Prosecutor/District Government Counsel is no more res integra – Authoritatively settled in Johri Mal case – Respondents having been terminated, fresh appointments are required to be made. (Para 3 and 6)
       (2004) 4 SCC 714; (2011) 5 SCC 341; (2012) 3 SCC 117; (2013) 5 SCC 277; (2014) 14 SCC 548 – Relied upon
       Facts of the case:
       Respondents herein came to be appointed as District Government Counsel across the length and breadth of the State of U.P.
       The State Government’s Order was assailed before the High Court in a bunch of more than 100 writ petitions.
       The High Court directed the State to make fresh appointments expeditiously, and in the interregnum permitted the existing empanelled Advocates to discharge their duties. Shortly thereafter the High Court directed the State of U.P. to reconsider the selection and appointment of Advocates to the “post of Additional District Government Counsel, Assistant District Government Counsel, Panel lawyers and Sub District Government Counsel”; that the persons appointed in pursuance of old provisions would continue till the completion of the reconsideration process; and, all fresh appointments would be carried out strictly in conformity with U.P. Shaskiya Adhivakta Kalyan Samiti and Sadhna Sharma v. State of U.P [Writ Petition Misc. Bench No. 7825 of 2011].
       The State Government filed Special Leave Petitions during the pendency of which there was a change in the State Government which accepted the assailed judgments of the High Court and accordingly intended to implement it in its entirety. Nevertheless, three “clarifications” were recorded by the Supreme Court. Firstly, that the appointments made in consultation with the High Court and/or the District and Sessions Judge of the concerned district would not be disturbed. Secondly -“Against the existing vacancies the cases of all the appellants herein, who are in service or are out of service as well as any of the petitioners before the High Courts, whose services were terminated at any point of time including the persons who had filed the Writ Petitions in the High Court during the pendency of writ petition and/or the present civil appeals shall be considered for renewal/reconsideration in accordance with the judgment of this Court within a period of three months from today......” Thirdly, personal responsibility was fastened on the Secretary, Department of Law and Justice, Government of U.P. to complete the above appointments.
       Consequently, the State Government issued a Government Order to the effect that the appointment of all District Government Counsels should be cancelled. However, the incumbents were permitted to continue to discharge their duties till fresh appointments were made. The District Magistrates were to verify the number of vacancies on the Civil, Criminal and Revenue sides.
       Accordingly, engagement of the Respondents was put to an end and their renewal in the light of consultation reports was awaited. This lead to the filing of writ petitions terming the cessation of the appointment as arbitrary. However, the Supreme Court directed that “the cases of renewal of appointment of the existing incumbent shall likewise be considered in accordance with the provisions contained in LR Manual and the judgments of this Court. This exercise shall be undertaken and completed within a period of four months from today.” Eventually, in terms of the final Order the High Court issued a Certiorari quashing the Orders declining renewal of the Respondents; a Mandamus directing the State Government to reconsider their candidature. The High Court had also issued a Mandamus directing the Government to set up a Directorate of Prosecution in pursuance of Section 25-A of Code of Criminal Procedure and lastly passed a direction to the District Judges and District Magistrates to ensure that no person having criminal antecedents should be permitted to work as District Government Counsel.
       Finding of the Court:
       Impugned judgment is not sustainable.
       Result: Appeals allowed.

JUDGMENT

VIKRAMAJIT SEN, J.

1. Leave granted.

2. Applications for correcting the cause title and all the applications for impleadment as party respondent are allowed.

3. In these Appeals, we are concerned with the renewal as also the appointment of District Government Counsel (Civil and Criminal) in the Subordinate Courts across the State of Uttar Pradesh. The State as the Appellant, has assailed the final judgment and order dated 5.11.2014 in Writ Petition being Misc. Bench No. 9127 of 2012 passed by a Division Bench of the High Court of Judicature at Allahabad, Lucknow Bench. The High Court in this impugned Order has quashed the Orders of the State Government terminating the appointment of District Government Counsel and has further directed the State Government to reconsider their renewal. Indubitably, the appointments as well as the renewals would have to be in consonance with Section 24 of the Code of Criminal Procedure (Cr.P.C. for brevity) and the Legal Remembrancer Manual (hereinafter referred to as the ‘LR Manual’) applicable throughout the State of U.P. The Manual which came into force in 1975 inter alia prescribes mandatory ‘consultation’ with the District Judge and the District Magistrate on the one side and the State on the other.

4. In August 2008, the then State Government, in terms of the Government Order dated 13.8.2008, had amended the LR Manual thereby removing the process of consultation with the District Judge for the appointment of District Government Counsel; effectively, thereafter the LR Manual required the State to only consult with the District Magistrate. It was on the basis of the LR Manual as amended that the Respondents before us came to be appointed as District Government Counsel across the length and breadth of the State of U.P. This is a noteworthy feature on which our decision will turn in some measure. The State Government’s Order, which is dated 13.8.2008, came to be assailed before the High Court of Judicature at Allahabad, Lucknow Bench in a bunch of more than 100 writ petitions, including the lead petition U.P. Shaskiya Adhivakta Kalyan Samiti v. State of U.P. Writ Petition Misc. Bench No. 7851 of 2008 reported as (2012 (30) LCD 1066). By an Order dated 6.1.2012 passed in those proceedings, the High Court directed the State to make fresh appointments expeditiously, and in the interregnum permitted the existing empanelled Advocates to discharge their duties. Shortly thereafter, in Bishan Pal Saxena v. State of U.P. Writ Petition Misc. Bench No. 8246 of 2011, in terms of its Order dated 12.1.2012 the High Court directed the State of U.P. to reconsider the selection and appointment of Advocates to the “post of Additional District Government Counsel, Assistant District Government Counsel, Panel lawyers and Sub District Government Counsel”; that the persons appointed in pursuance of old provisions would continue till the completion of the reconsideration process; and, all fresh appointments would be carried out strictly in conformity with U.P. Shaskiya Adhivakta Kalyan Samiti and Sadhna Sharma v. State of U.P [Writ Petition Misc. Bench No. 7825 of 2011].

5. Aggrieved by the aforementioned Judgments, the State Government filed Special Leave Petitions No. 4042-4043 of 2012 titled State of U.P. & Ors. v. Sadhna Sharma, during the pendency of which there was a change in the State Government. Immediately thereupon, a prayer was made before this Court for withdrawal of the Special Leave Petitions on the predication that the newly elected State Government had accepted the assailed judgments of the High Court of Allahabad and accordingly intended to implement it in its entirety. In the course of disposing of these SLPs this Court pointedly and poignantly observed that the constitutional validity of Section 24 Cr.P.C. had not been challenged. This Court noted the unanimity in the opinion that the assailed judgments of the High Court would be implemented. Nevertheless, three “clarifications” were recor

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2015 Supreme(SC) 1068

IMPORTANT POINTPrecedent and Stare decisis. District Counsels do not have statutory rights to renewal of tenures. Requirements of counsel to be appointed as District counsel discussed.

Cases Referred (16)

IMPORTANT POINT
Precedent and Stare decisis.
District Counsels do not have statutory rights to renewal of tenures.
Requirements of counsel to be appointed as District counsel discussed.