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[2012(5) ADJ 271 (DB)(LB)]
ALLAHABAD HIGH COURT
(Lucknow Bench)
BEFORE : DEVI PRASAD SINGH AND DR. SATISH CHANDRA, JJ.
U.P. SHASKIYA ADHIVAKTA KALYAN SAMITI, 8, MUSTAFA MARKET, SI ....Petitioner
Versus
STATE OF U.P. ....Respondent
(Civil Misc. Writ Petition Nos. 7851 of 2008, 3922, 3927, 4081, 4579, 4552, 4028, 3919, 4500, 4692, 4693, 4694, 4695, 4584, 4586, 4739, 4743, 4843, 4860, 4861, 4940, 4942, 4447, 4455, 4194, 4252, 3860, 4192, 4311, 4181, 4312, 4314, 4315, 4316, 4317, 4318, 4319, 4083, 4268, 4267, 4261, 4260, 4257, 4256, 4255, 4254, 4253, 4251, 4250, 4248, 4196, 4195, 4184, 4183, 4180, 4419, 4418, 4417, 4416, 4414, 4412, 4411, 4410, 4450, 4457, 4445, 4460, 4490, 4449, 4451, 4458, 4493, 4453, 4448, 4492, 4456, 4459, 4452, 4443, 4491, 4454, 4444, 4488, 4494, 4581, 4583, 4585, 5114, 5098, 6516, 6610, 4179, 5367, 5352, 5356, 7145, 5271, 5696, 5737, 7393, 4817, 4082, 4084, 1207, 82 - all (M/B) of 2011 and 12543(M/B) of 2010, 6th January, 2012)
(B) Judicial review—Executive action—Submission of respondents that impugned order being purely of administrative nature is not amenable to judicial review—Plea negatived—Impugned G.O. found against the aim and object of Section 24 read with Section 25-A, Cr. P.C.—Petitioners have been deprived of their office in violation of L.R. Manual—Impugned G.O. is to be tested on touch stone of Article 14—Petitions may not be thrown out only on the ground that impugned G.O. is merely executive instructions issued in pursuance to policy decision taken by State Government, more so when it emanates from the provisions contained in Section 24, Cr.P.C. [Paras 37 to 73]
(C) Public Prosecutor—Role of—Public Prosecutor is not only to defend the State Government but also the private citizens—Their posts statutory in nature—Honest, fair and meritorious member should be retained. [Paras 74 to 88]
(D) Renewal—District Government Counsels—Requisities—Renewal of serving D.G.C. before proceeding to make fresh appointment must be considered—In none of cases, opinion of District Judge has been obtained under the garb of impugned G.O.—Thus, State action is making appointment or renewal of D.G.Cs. not only suffers from Vice of arbitrariness but violative of provisions contained to Chapter XXI, L.R. Manual. [Paras 89 to 109]
(E) Appointment—District Government Counsels—Opinion of District Judge—Obligatory on post of State Government to obtain opinion of District Judge while making such appointment or renewal—Contention of respondent-State that the Government can amend the L.R. Manual by issuing subsequent G.Os. and give a go-bye with consultation of the District Judge rejected. [Paras 115 to 131]
(F) Precedents—Of Constitutional Courts—Whether can be nullified or overruled by executive instructions ?—(No)—Impugned G.O. dispensing with consultation with District Judge, held, arbitrary. [Paras 149 to 165]
(G) Office of Legal Remembra-ncer—Conduct in question—Opportunity of explaining or defending himself—Explained. [As per Dr. Satish Chandra, J. (not concurring)] [Paras 254 to 263]
(H) Costs—Award of—Mode and manner explained. [As per Dr. Satish Chandra, J. (not concurring)] [Paras 264 to 266]
Key Points: - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!)
Hon’ble Devi Prasad Singh, J.—In this bunch of writ petitions, question and dispute involved relates to appointment of District Government Counsels in District and Sessions Courts of the State of U.P. Substantial question of law is of public importance and common in all the writ petitions. Factual background in these bunch of writ petitions is also with slight difference are more or less same. Hence, with the consent of parties, we decide the writ petitions by present common judgment.
2. Keeping in view lengthy argument, advanced by the parties’ counsel, we are adjudicating the dispute under the following heads :
(I) Maintainability of writ petition
(II) Role of Public Prosecutors
(III) Appointment and Renewal
(IV) Government’s right -whether statutory ?
(V) Opinion of District Judge
(VI) Impugned order and the binding precedent
(VII) Overruling of judgments by Executive Order, not permissible.
(VIII) Undertaking/statement before the Court, shifting of stand and change of Government.
(IX) Doctrine of Finality
(X) Section 25-A of CrPC and Repugnancy
(XI) Office of L.R. of State of U.P. and its failure
(XII) Omission and Arbitrariness
(XIII) Cost
(XIV) Some individual cases
(XV) Rule of Law
(XVI) Finding
(XVII) Order
3. Writ Petition No. 7851(M/B) of 2008 shall be leading writ petition, followed by writ petition No. 3922(M/B) of 2011 and 4179(M/B) of 2011 and other petitions.
4. Appointment on the post of District Government Counsel in the State of U.P. has been a battle ground since more than two decades. With the change of Government, “Spoils System” comes to light and results into removal and appointment of the members of noble profession in the District Courts throughout the State and sometime in the High Court also. Barring exception, the reasons seems to be political one and to generate and perpetuate political power, may be under false notion as a “vote catching device”.
Thomas Hobbes rightly said, to quote :
“I put for a generall inclination of all mankind, a perpetuall and restlesse desire of Power after power, that ceaseth onely in Death. And the cause of this, is not alwayes that a man hopes for a more intensive delight, than he has already attend to; or that he cannot be content with a moderate power : but because he cannot assure the power and means to live well, which he hath present, without the acquisition of more”. (Leviathan by Thomas Hobbes, page 54).
5. Unfortunate part of political action suffers from the short sightness without visualizing the effect and consequence of actions which the society or country may face in due course of time. Giving example, Thomas Hobbes said how different section of people and administration suffers, in the absence of forthrightness, to quote :
“Ignorance of remote causes disposeth men to attribute all events, to the causes immediate, and Instrumentall; For these are all the causes they perceive. And hence it comes to passe, that in all places, men that are grieved with payments to the Publique, discharge their anger upon the Publicans, that is to say, Farmers, Collectors, and other Officers of the publique Revenue; and adhaere to such as find fault with the publike Government; and thereby, when they have engaged themselves beyond hope of justification, fall also upon the Supreme Authority, for feare of punishment, or shame of receiving pardon. (Leviathan by Thomas Hobbes, page 58).
Lawyers being officers of the Court whether appear to defend cause of private litigant or the Government in case appointed de hors the merit, then naturally barring exceptions, quality of judgment shall come down and in due course of time because of possible injustice which may cause, the ultimate sufferer shall be the society at large.
6. In the State of U.P., District Government Counsel (DGC) for civil, criminal and revenue Courts are appointed in accordance with the procedure prescribed by Legal Remembrancer Manual (in short, L.R. Manual). The petitioners of these bunch of writ petitions
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