P. N. Sethi v. State of U. P. Others — 1992 DIGILAW 148 (ALL)

JUDGMENT Brijesh Kumar, J. - It is again one of those cases in which a Government Counsel has approached the Court, against the action of the State, by whom the petitioner was appointed to lookafter its legal work. It is noticed that such disputes now frequently come for settlement before the Courts. It is not a happy feature and if the State and its Lawyers start litigating between themselves the consequences can well be imagined, for it is supposed that a fiduciary relationship exists between a lawyer and his client. 2. The State, generally speaking, must keep in mind, while dealing with its regularly appointed counsels that their engagement is not just like an engagement of a Lawyer by a private party. As now it is well settled that the State actions have to conform to certain norms and laws, more specifically the Article 14 of the Constitution. At the same time the counsels engaged/appointed by the State must also be conscious of the traditions of the noble profession of law, its ethics, dignity and independence. We may not be taken to mean that if the State action is unjustified and suffers from vice of arbitrariness, it may not be challenged but we only want to put a note of caution and feel that it would be conducive to the interest of both to avoid, as far as possible, such litigation, lest it becomes a normal feature affecting the relationship of faith and trust. 3. We have heard learned counsels for the parties at length and they agreed that the matter may be finally disposed of at this stage. 4. The brief facts of the case are that the petitioner has been working as District Government Counsel (Criminal), Lucknow, since January, 1983 continuously. The appointment was initially on ad hoc basis for a short period, thereafter appointed for one year, which appointment was renewed/extended from time to time lastly upto 31.12.91 by order dated 26.2.91. Prior to his appointment as D.G.C. (Criminal) the petitioner also states to have worked in the panel of the D.G.C. (Criminal) and as Assistant Government Counsel (Criminal) for over 12 years. Thus, the span of his work in prosecuting the criminal cases in the District Courts extends to about over 20 years. 5. The facts set out above are not in dispute. Thus, the span of his work in prosecuting the criminal cases in the District Courts extends to about over 20 years. 5. The facts set out above are not in dispute. An order was passed on 31.12.91 saying that since the petitioner has already attained the age of superannuation, namely, 60 years, the State had taken a decision that he may not be continued after 31.12. 91. A copy of the said order has been filed as annexure1 to the writ petition and annexure2 is the copy of the letter dated 1.1.92 by which the petitioner was communicated the above order. This communication says that according to directions of the State the petitioner was being relieved w.e.f. afternoon of 31.12.91 having attained the age of 60 years. 6. The petitioner, aggrieved by the above orders contained in annexures 1 and 2 to the writ petition, approached the Court. The main ground of attack was that the petitioner was discontinued or so to say, he was not given extension or his term was not further renewed under misconceived notion that the age of superannuation of District Government Counsels is 60 years. A perusal of order dated 31.12.91, annexure1, would apparently indicate that what is contended on behalf of the petitioner is correct. We have also perused the record and there is no doubt, in our minds, that the impugned order was passed on the basis that the petitioner had attained the age of 60 years. According to petitioner the age of superannuation is 62 years as provided under the Legal Remembrancer's Manual, for short L.R. Manual. We will come to the relevant provisions a little later. At this stage, it may be noted that on 3.1.92 a Bench of this Court passed an order saying that since the term of the petitioner's appointment had expired on 31.12.91, the State shall consider the renewal of his term in the manner prescribed and take a decision by 7.1.91 if question of renewal has not been already considered. At this stage, it may be noted that on 3.1.92 a Bench of this Court passed an order saying that since the term of the petitioner's appointment had expired on 31.12.91, the State shall consider the renewal of his term in the manner prescribed and take a decision by 7.1.91 if question of renewal has not been already considered. When we started hearing in the matter, at the very outset we asked the learned Chief Standing Counsel if the question of renewal of the term of the petitioner was considered in the light of the order passed by this Court on 3.1.92 or not, he informed that the matter had been considered and a decision was taken not to renew the term of appointment of the petitioner. We, therefore, perused the record, which was ready with the learned State Counsel. The learned counsel for the petitioner has attacked the decision taken by the State on the ground that it is arbitrary and mala fide. It is also submitted that it is not based on any material available on the record. 7. The appointments of the District Government Counsel and conditions of their engagement are governed by L.R's Manual. Chapter VII of the said Manual deals with District Government Counsels in any court other than the High Court to conduct civil, criminal or revenue cases on behalf of the State Government. The relevant provision of the Legal Remembrancer's Manual, dealing with renewal of term, is contained in para 7.08. For the sake of convenience it is quoted below 7.08 Renewal of term (1) At least three months before the expiry of the term of a District Government Counsel, the District Officer shall after consulting the District Judge and considering his past record of work, conduct and age, report to the Legal Remembrancer, together with the statement of work done by him in Form No. 9 whether in his opinion the term of appointment of such counsel should be renewed or not. A copy of the opinion of the District Judge should also be sent along with the recommendations of the District Officer. (2) Where recommendation for the extension of the term of a District Government counsel is made for a specified period only, the reasons therefor shall also be stated by the District Officer. A copy of the opinion of the District Judge should also be sent along with the recommendations of the District Officer. (2) Where recommendation for the extension of the term of a District Government counsel is made for a specified period only, the reasons therefor shall also be stated by the District Officer. (3) While forwarding his recommendation for renewal of the term of a District Government Counsel (i) the District Judge shall give an estimate of the quality of the Counsel's work from the judicial stand point, keeping in view the different aspects of a lawyer's capacity as it is manifested before him in conducting State cases, and specially his professional conduct: (ii) the District Officer shall give his report about the suitability of the District Government Counsel from the administrative point of view, his public reputation in general, his character, integrity and professional conduct. (4) If the Government agrees with the recommendations of the District Officer for the renewal of the term of the Government Counsel, it may pass orders for reappointing him for a period not exceeding three years. (5) If the Government decides not to reappoint a Government Counsel, the Legal Remembrancer may call upon the District Officer to forward fresh recommendation in the manner laid down in para 7.03. (6) The procedure prescribed in this para shall be followed on the expiry of every successive period of renewed appointment of a District Government Counsel: Note: The renewal beyond 60 years of age shall depend upon continuous good work, sound integrity and physical fitness of the Counsel. The other provision about the age of superannuation is contained in paragraph 7.13 which is quoted below: 7.13 Superannuation Age (1) No legal practitioner shall be appointed as a District Government Counsel if his age exceeds 62 years, nor shall his term be extended beyond the age of 62 years, unless the Government for any special reasons, in any case, directs, otherwise. The Legal Remembrancer may at any time call for such proof of age as he may consider necessary. (2) When a District Government Counsel is about to reach the age of superannuation, the District Officer shall submit his proposals for arrangement in his place so as to reach the Legal Remembrancer at least three months before that counsel attains the age of superannuation. (2) When a District Government Counsel is about to reach the age of superannuation, the District Officer shall submit his proposals for arrangement in his place so as to reach the Legal Remembrancer at least three months before that counsel attains the age of superannuation. In the light of the two provisions, quoted above it is clear that first order passed on 31.12.91, as contained in annexure1 to the writ petition, was passed against the provisions of the L.R.'s Manual. Annexure1 clearly indicates that the decision was taken not to continue the petitioner on the basis that he has attained the age of superannuation, that is 60 years. There is no such provision that the District Government Counsel would attain the age of superannuation on completing 60 years of age. All the difference, that it makes, on attaining the age of 60 years, is that according to note appended to para 7.08, the renewal beyond 60 years of age shall depend upon continuous good work, sound integrity and physical fitness of the counsel. There is nothing on record to indicate or any thing averred in the Counter affidavit saying that the petitioner was lacking any of the three things mentioned in the note. In the Counter affidavit it was rather said that no report had been received by the State Government from district level about continuous good work, sound integrity and physical fitness of the petitioner after he had attained the age of 60 years. It is not the case that the petitioner had lacked any of three things. The petitioner is being continued as District Government Counsel (Criminal) continuously since 1983. The recommendations of the different District Judges have been placed on the record. Learned Counsel for the petitioner has also informed that the District Officer on 31.5.91 had recommended for extension of term of the petitioner. Learned Chief Standing Counsel did inform the court that such a letter was received by the State Government. The State Government rather seems to have viewed the things other way round. We feel that if the petitioner lacked in any of the three things required under the note, such a report should have been submitted by the District officer. Learned Chief Standing Counsel did inform the court that such a letter was received by the State Government. The State Government rather seems to have viewed the things other way round. We feel that if the petitioner lacked in any of the three things required under the note, such a report should have been submitted by the District officer. Therefore, there being nothing on the record to indicate that the petitioner had incurred any disability for being continued in terms of the note appended to para 7.08, it was nothing but a vain effort on the part of the State to take shelter of note to para 1.05. As we have observed earlier, the impugned order, Annexure1, was passed under misconception that the age of superannuation of District Government Counsels is 60 Years. 8. Before we proceed to examine the decision of the State Government, lakes in pursuance of the order dated 3.1.92 passed by this Court for considering the case of the petitioner for renewal in the manner prescribed, it will be worthwhile to advert to the question of scope of interference, in such matters. In this connection the decision of the Hon'blie Supreme Court reported in 1991 SCC (L&S) page 742 (Km. Shrilekha Vidyarthi & others v. State of U.P. & others has been relied upon by both sides. The learned State Counsel has specifically drawn our attention to paragraphs 33 and 47 of the judgment. Learned counsel for the petitioner has also taken us through the different paras of the judgment. It has been held in unequivocal terms that every State action has to conform to reasonableness and it must not be arbitrary. In view of the observations made in paragraph 33, the learned counsel for the State submitted that there is presumption in favour of validity of the State action and burden is upon the person who alleges violation of Article 14 to prove the assertion. The Court further observed, however, that where no plausible reason or principle is indicated the order appears to be ex facie arbitrary, the burden .shifts upon the State to justify its action as fair and reasonable. It is further observed that if the State is unable to produce material to justify its action as fair and reasonable, the burden upon the person alleging arbitrariness must be held to be discharged. It is further observed that if the State is unable to produce material to justify its action as fair and reasonable, the burden upon the person alleging arbitrariness must be held to be discharged. Learned counsel for the petitioner has submitted that annexure1 to the writ petition was passed in an arbitrary manner clearly in violation of the provisions contained under the L.R. Manual deciding not to extend or renew the term of the petitioner as he had attained the age of superannuation, i.e. 60 years. The order was not based on relevant consideration, hence it was arbitrary. The decision of the State not to renew the term of the petitioner subsequent to the order passed by this Court on 3.1.92 is nothing but an effort to cover up the earlier order with a view to adhere to its earlier decision. It has further been submitted that it was incorrectly averred on behalf of the State that reports of the District Level Officers had not been received though admittedly the State Government had received the letter of the District Officer dated 31.5.91 recommending extension of the petitioner. The District Judges have always been recommending in favour of continuance of the petitioner as District Government Counsel. Therefore, the report, which was procured from the District Officer after the order was passed by this Court on 3.1.92, was not a fair and true report, it rather contradicted the earlier report submitted by the District Officer. Therefore, the decision of the Government suffers from vice of arbitrariness. It may further be observed that in paragraph 47 of the judgment it is observed that preparation of fresh panel to replace the existing District Government Counsels would be done only if they are found unsuitable for renewal. 9. We may now consider the question of validity of the decision taken about renewal of term of the petitioner. A perusal of the record shows that on January 6, 1992, the District Officer submitted his report to the State Government. It appears that the comments of the District Judge were also enclosed alongwith the recommendation of the District Officer. The District Officer, in his recommendation, communicated through letter dated January 6, 1992, says that he does not agree with the recommendation made by the District Judge. It appears that the comments of the District Judge were also enclosed alongwith the recommendation of the District Officer. The District Officer, in his recommendation, communicated through letter dated January 6, 1992, says that he does not agree with the recommendation made by the District Judge. He then writes that in 198889 and 198990 the petitioner is said to have conducted thirteen sessions trials, out of which eleven ended in conviction and two were still pending. Success in the revisions was 80% and. in appeals it was 88%. He further goes on to say that on probing deep into the matter it was found, according to monthly statement, that he had not conducted any case in the months of June, August and March. In September, 1991 he had conducted one case which ended in conviction but in that case, in addition to the petitioner two A.D.G.C. (Cri.) also appeared. On the basis of the said averment he opined that it appears that in most of the cases in which the petitioner is said to have appeared, he appeared alongwith other counsels. In the next paragraph the District Officer says that during his tenures the petitioner lacked proper report with other Government Counsels, it adversely affected his capability to have proper control over the work. In the end he opined that after attaining the age of 60 years the petitioner should not be again appointed as D.G.C. (Criminal). The last line of the letter says . As Syndicated above, the opinion of the District Officer accompanied the opinion of the District Judge which reads as under.' 'Though he has completed the age of 60 yearg, he is mentally and physically fit to carry on the work of D.G.C. (Cri.). which he has been doing so far with all sincerity, integrity and efficiency at his command. He comes prepared on facts and law and asserts the points in favour of the State vehemently and is always alert to safe guard the interest of the State. His extension for two years as D.G.C. (Cri.) is strongly recommended. 10. The District Officer in one sentence says that he did not agree with the comments of the District Judge. No facts, material or reasons have been indicated for disagreement. Then he records his conclusion that in most of the cases, in which the petitioner appeared, he appeared with other counsels. 10. The District Officer in one sentence says that he did not agree with the comments of the District Judge. No facts, material or reasons have been indicated for disagreement. Then he records his conclusion that in most of the cases, in which the petitioner appeared, he appeared with other counsels. For drawing the above conclusion the instance of only one case has been given although according to the letter of the District Officer the matter was probed into deeply. The conclusion, therefore, that he appeared in most of the cases alongwith other counsels, is without any supporting material, rather such a comment is conjectural. It may also be observed, at this stage that it is not uncommon that senior counsels often take the assistance of their junior colleagues. If the District Government Counsel is assisted in a number of cases by other Additional District Government Counsels as well, how this is the matter which may be considered against a counsel while judging his suitability. We then come to the most crucial part of the opinion of the District Officer when he says that in absence of proper report with other State Counsels his capacity to hold effective control was adversely affected. This observation is also without any supporting material. In the same letter the District Officer has tried to give some facts while giving his opinion that it appeared that in most of the cases the petitioner appeared with other counsels but for two things in the opinion, there is no material at all, namely, when he observed that he does not agree with the opinion of the District Judge and again when he says that there was lack of proper rapport between the petitioner and other State Counsels. These observations of the District Officer, therefore, cannot be made use of in absence of any supporting material. The last line in the opinion of the District Officer, also shows that the fact that the State Government had passed an order earlier in pursuance of which the petitioner's charge was taken over, was weighing heavily in his mind. Not this alone, we may again refer to the opinion of the District Officer conveyed through his letter dated 31.5.91 which, according to statement made by the learned Chief Standing Counsel, was received by the Government, a copy of the same has been filed as annexure S.R.A1 to the Supplementary rejoinder affidavit. Not this alone, we may again refer to the opinion of the District Officer conveyed through his letter dated 31.5.91 which, according to statement made by the learned Chief Standing Counsel, was received by the Government, a copy of the same has been filed as annexure S.R.A1 to the Supplementary rejoinder affidavit. The material part of the opinion is as follows: The above opinion was given by the District Officer after the term of the petitioner had already been extended on 26.2.1 991 upto 31st December, 1991. No effort has been made to indicate from the record or to place before us any material resulting in change of opinion of the District Officer in six months. What went wrong between June and December is not forthcoming. 11. Learned Chief Standing Counsel submits that the District Officer has only to consult the District Judge while making his recommendation. Consultation with the District Judge does not mean that his opinion is binding. Under clause (ii) of subpara (3) of Para 7.08 of the L.R.'s Manual the District Officer has to give his report from the administrative point of view about his suitability, reputation in general, his character, integrity and professional conduct whereas under Clause (i) the District Judge has to give an estimate of the quality of the Counsel's work from the judicial point of view, keeping in view the different aspects of a lawyer's capacity as it is manifested before him in conducting State cases and specially his professional conduct. It has been argued that ultimately it is the District officer who has to give his report keeping in view other points including the administrative point of view. It is true that the District Officer has only to consult the District Judge while forming his opinion in making recommendation but it cannot possibly be argued that the opinion of the District Judge is to be totally ignored or it is to be unceremoniously brushed aside in one sentence. It is also true that it may not be binding upon the District Officer and he may hold a different opinion but then there should be some tangible material and reason for not taking into account or taking a view different from one expressed by the District Judge. It is also true that it may not be binding upon the District Officer and he may hold a different opinion but then there should be some tangible material and reason for not taking into account or taking a view different from one expressed by the District Judge. It is perhaps, with a view that the District Officer may not form his opinion in an arbitrary manner or jump upon conclusions without any material and basis that it is provided under sub para (1) of para 7.08 that a copy of the opinion of the District Judge should also be sent along with the recommendation of the District Officer. The obvious purpose appears to be to have a safeguard against an arbitrary recommendation. 12. We feel that the scope of enquiry in such matters cannot be extended to the extent that where two views are possible, on the basis of the facts upon which the opinion of the District Officer is based, to evaluate the same and to say that it would have been better to take the other view. The District Officer is entitled to form his opinion and prepare his report and forward the same to the State but in case the opinion and the report are not based on facts or it is not supported by material, it will not be a report or the opinion in the eye of law carrying any weight. As in the present case we find that the District Officer has not indicated any facts or the reasons while observing that he does not agree with the recommendations of the District Judge nor any such material we find in the record nor the same has been pointed out. Again on the basis of one case where some other Addl. District Government Counsel had appeared alongwith the petitioner the conclusion had been drawn that in most of the cases he was appearing with other counsels. Such conclusion can only be said to be conjectural. The third ground can be said to be related to suitability. On this aspect of the matter it may be observed that there is nothing in the record to indicate that there was any lack of rapport between the petitioner and other Government Counsels resulting in lack of proper control over the work. The third ground can be said to be related to suitability. On this aspect of the matter it may be observed that there is nothing in the record to indicate that there was any lack of rapport between the petitioner and other Government Counsels resulting in lack of proper control over the work. Such bald observations, without any tangible material in support thereof, are of no effect nor they can be acted upon. The fact that the State Government had earlier decided not to renew the term of the appointment of the petitioner seems to have weighed heavily with the District Officer and for that reason perhaps he gave entirely a different report within a few months, in support of which no facts are to be found in the record. A genuine suspicion lurks in our mind about the report of the District Officer in view of the circumstances enumerated above. The decision taken not to renew the term of the appointment of the petitioner on the basis of such a report cannot be sustained. 13. We may again refer to the decision of Hon'ble Supreme Court in case of Kumari Shrilekha (supra) specially the observations made in paragraph 12 ..............The Government Counsel in the districts are treated as law Officers of the State who are holders of an 'office' or 'post'. The aforesaid provision in Chapter VII relating to appointment and conditions of engagement of District Government Counsel show that the appointments are to be made and ordinarily renewed on objective assessment of suitability of the person based on the opinion of the District Officer and the District Judges and character roll is maintained for keeping a record of the suitability of the appointee to enable an objective assessment for the purpose of his continuance as a Law Officer in the district. 14. In context with the above observation, it may be noted here that pargraph 7.09 provides for maintaining the character roll of District Government Counsels. It is also provided that the adverse entry shall be communicated to the District Government Counsel by the District Officer. Since there is such a provision for maintaining character roll of a District Government Counsel it is surprising why the District Officer has not referred to any material in the character roll of the petitioner to support his report dated 7.1.92. Since there is such a provision for maintaining character roll of a District Government Counsel it is surprising why the District Officer has not referred to any material in the character roll of the petitioner to support his report dated 7.1.92. The Hon'ble Supreme Court has then further observed in the same paragraph'.....the appointment and. engagement of District Government Counsel is not the same as that by a private litigant of his counsel and there, is obviously an element of continuity of the appointment unless the appointee is found to be unsuitable either by his own work, conduct or age in comparison to any more suitable candidate available at the place of appointment. 15. Learned counsel for the petitioner also placed before us specially paragraph 35 of Shrilekha Vidyarthi's case (supra) which is as follows : 35. It is now too well settled that State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basis to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and private individual in the field of contract has to be borne in the mind. 16. In view of the discussion held and reasons given we find that the report of the District Officer dated 7.1.92, on the basis of which a decision was taken not to renew the term of appointment of the petitioner, did not give an objective assessment on the question of suitability of the petitioner for being retained as District Government Counsel (Cri.). 17. In the result the writ petition is allowed and the decision of the State Government not to renew the term of the appointment of the petitioner, the order dated 31.12.91 contained in Annexure1 to the writ petition, the order contained in Annexure S.R.A.3 dated January 9, 1992 to the supplementary rejoinder affidavit, are quashed. 17. In the result the writ petition is allowed and the decision of the State Government not to renew the term of the appointment of the petitioner, the order dated 31.12.91 contained in Annexure1 to the writ petition, the order contained in Annexure S.R.A.3 dated January 9, 1992 to the supplementary rejoinder affidavit, are quashed. Since we find that there exists no material on the basis of which it can be said that the petitioner is not suitable for renewal of the term of his appointment, the opposite parties are directed to pass an order accordingly forthwith, say within a week from today, In accordance with the provisions of L.R. Manual. 18. A copy of the order may be issued to the learned counsels for the parties, on payment of usual charges, within three days.