Back
2020 Supreme(All) 471
IN THE HIGH COURT OF ALLAHABAD
Bala Krishna Narayana, Prakash Padia, JJ.
Shyam Narayan Yadav – Petitioner
Versus
State of U.P. and Another – Respondent
Writ C No. 62727 of 2017
Decided On : 29-04-2020
Advocate Appeared:
For the Petitioner: Nand Kishore Singh, Kunal Shah, Rahul Agarwal
Point of Law:
A person against whom an order is required to be passed or whose rights are likely to be affected adversely must be granted an opportunity of being heard.
Headnote:
Constitution of India – Article 226 – To quash the orders passed by the respondent no.1/Principal Secretary, as well as notification issued by the respondent no.2 namely District Magistrate Held, Total non-application of mind and the order being supported by no reason whatsoever would render the order passed as ‘arbitrary’. Arbitrariness shall vitiate the administrative order - It is only when his work or conduct is found to be unsatisfactory that it is so reported to the government for appropriate orders. If the report is satisfactory, the rule requires that he may be furnished with a deed of engagement in form I, for a term not exceeding three years, on his first engagement – impugned order does not record any such satisfaction and the entitlement of the petitioner does not appear to have been considered in the light of the provisions of Legal Remembrancer's Manual as also the decisions referred – writ petition is allowed
Facts of the Case:
Petitioner was initially appointed on the post of Assistant District Government Counsel (Criminal) in the year 1999 and he continued to perform as such upto 27.5.2014 and renewals were also granted to him after considering his work, conduct, performance and legal knowledge. The post of District Government Counsel (Criminal) in District Judgeship, Ballia fell vacant in the year 2013. In order to engage or select the Advocates having requisite qualifications and the experience on the said post, the State Government issued a Government Order dated 4.6.2014. Pursuant to the same a notification dated 16.6.2014 was issued by the respondent no.2 – application was submitted by the petitioner before the respondent no.2 for renewal of his term. He forwarded the same before the respondent no.1 for the grant of renewal in terms of the relevant rules. The respondent no.1 vide its order dated 27.10.2017 rejected the renewal application
Finding of the Court:
Total non-application of mind and the order being supported by no reason whatsoever would render the order passed as ‘arbitrary’. Arbitrariness shall vitiate the administrative order - It is only when his work or conduct is found to be unsatisfactory that it is so reported to the government for appropriate orders. If the report is satisfactory, the rule requires that he may be furnished with a deed of engagement in form I, for a term not exceeding three years, on his first engagement – impugned order does not record any such satisfaction and the entitlement of the petitioner does not appear to have been considered in the light of the provisions of Legal Remembrancer's Manual as also the decisions referred
Result: writ petition is allowed
JUDGMENT :
Prakash Padia, J.
Heard Sri Kunal Shah, learned counsel for the petitioner and Sri Neeraj Tripathi, learned Additional Advocate General assisted by Sri Shashank Shekhar Singh, Learned Additional Chief Standing Counsel on behalf of State.
2. The petitioner has preferred the present writ petition with the prayer to quash the orders dated 27.10.2017 passed by the respondent no.1/Principal Secretary, Nyaya Anubhag-3, (Niyuktia), Government of U.P., Lucknow, order dated 1.11.2017 as well as notification dated 8.12.2017 issued by the respondent no.2 namely District Magistrate, Ballia, District-Ballia.
3. The facts in brief as contained in the writ petition are that the petitioner was initially appointed on the post of Assistant District Government Counsel (Criminal) in the year 1999 and he continued to perform as such upto 27.5.2014 and renewals were also granted to him after considering his work, conduct, performance and legal knowledge. The post of District Government Counsel (Criminal) in District Judgeship, Ballia fell vacant in the year 2013. In order to engage or select the Advocates having requisite qualifications and the experience on the said post, the State Government issued a Government Order dated 4.6.2014. Pursuant to the same a notification dated 16.6.2014 was issued by the respondent no.2. Pursuant to the same petitioner duly applied for the post in question, thereafter, a panel was prepared by the respondent no.2 in which name of the petitioner found place at serial no.1. The aforesaid penal was prepared after due consultation with the District Judge, Ballia. Thereafter, respondent no.2 forwarded the application of the petitioner along-with the comments to the respondent no.1 and respondent no.1 vide Order dated 25.4.2016 appointed the petitioner on the post in question for one year, i.e., upto 24.4.2017. Before the aforesaid term was going to expire an application was submitted by the petitioner before the respondent no.2 for renewal of his term. He forwarded the same before the respondent no.1 for the grant of renewal in terms of the relevant rules. The respondent no.1 vide its order dated 27.10.2017 rejected the renewal application of the petitioner. Pursuant to the same, respondent no.2 passed consequential order dated 1.11.2017 directing the petitioner to hand over the charge to Additional District Government Counsel (Criminal). Subsequently, another notification was issued by the respondent no.2 on 8.12.2017 inviting applications from the Advocates for their engagement as Additional District Government Counsel (Criminal). The petitioner has preferred the present writ petition challenging the aforesaid orders.
4. The appointment and conditions of engagement of a counsel on the post of Additional District Government Counsel (Criminal) are governed by the provisions of Legal Remembrancer's Manual. In paragraph 7.08 of the manual it is provided that the District Officer will forward his recommendations after seeking the estimate of the quality of the counsel's work from the judicial stand point, keeping in view his public reputation in general, his character, integrity and professional conduct.
5. It is stated in paragraph 14 of the writ petition that in so far as the case of the petitioner is concerned, the District Officer as well as the District Judge has appreciated the quality of work of the petitioner including his knowledge, professional conduct and public reputation.
6. The basic ground, which was taken by the counsel for the petitioner in the writ petition that the refusal to renewal the term of the petitioner on the post of District Government Counsel (Criminal) was passed by the respondent no.1 without assigning any reasons as to why the recommendations made by the District Judge was not accepted. It is argued that the respondent no.1 passed the order without application of mind. It is further argued that the quality or capability of the petitioner in extending such an assistance has been appreciated
