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1998 DIGILAW 1427 (ALL)

JOHRI MAL v. STATE OF UTTAR PRADESH

1998-12-11

M.KATJU, S.L.SARAF

body1998
( 1 ) HEARD learned counsel for the petitioner and learned standing counsel. The petitioner has prayed for quashing of the impugned order dated 18. 9. 98 (Annexure-8 the writ petition ) and for the renewal of his term as DGC (Criminal) in district Meerut. In this case on 26. 10. 98 learned standing counsel was granted one months time to file a counter affidavit, but no counter affidavit has been filed so far. Hence we are treating the allegation in this petition to be correct. ( 2 ) THE petitioner has stated that he was selected and placed in the panel of Panel Lawyer (Criminal) on 6. 12. 78 and remained in the panel for 5 years and thereafter by order dated 7. 1. 83 the respondent no. 1 the State of U. P. appointed the petitioner as Additional DGC (Criminal) for one year. A true copy of the order dated 7. 1. 83 has been annexed as Annexure-1 to the petition. The petitioners term was regularly renewed from time. Subsequently on superannuation of one Kripal Singh DGC (Criminal ) Meerut on 1. 7. 1995 by order of respondent no. 2 dated 30. 6. 95 the petitioner was handed over the charge of DGC (Criminal) through letter dated 3. 7. 95 and the petitioner started functioning as DGC ( Criminal) a true copy of the order dated 3. 7. 95 has been annexed as Annexure-2 to the petition. Thereafter the post of DGC (Criminal) Meerut was duly notified and advertised and the applications were invited A true copy of the notification dated 8. 7. 96 has been annexed as Annexure-3 to the petition After following the procedure prescribed in the L. R. manual and after obtaining the no. 1 selected and appointed the petitioner as dgc (Criminal) vide order dated 17. 9. 97 true copy of which has been annexed as annexure-4 to the petition. ( 3 ) THE petitioner has since been functioning as DGC (Criminal)He prayed for renewal for his term which was expiring on 14. 9. 1998 a true copy of the letter dated 14. 9. 1998 is annexed as Annexure-6 to the petition. 9. 97 true copy of which has been annexed as annexure-4 to the petition. ( 3 ) THE petitioner has since been functioning as DGC (Criminal)He prayed for renewal for his term which was expiring on 14. 9. 1998 a true copy of the letter dated 14. 9. 1998 is annexed as Annexure-6 to the petition. However, his term has not been extended although the district Judge, Meerut and the District Magistrate Meerut both made favourable reports and recommended the petitioners appointment as dgc (Criminal) In paragraph 13 of the petition it has been alleged that the petitioner has been working satisfactorily and with unblemished record as District government Counsel and hence his term should be renewed. ( 4 ) SINCE this matter is of some importance we are dealing with it at some length. There was a time when irrespective of political affiliations appointments of Government counsels were made in the high Court and District Courts purely on merit. In this Court itself appointment as a Government Counsel was usually regarded as a stepping stone to high offices. Almost all the persons who were appointed about 20 or 30 yeas ago as Government Counsel in the high Court were elevated as Judge of this Court or occupied other high posts like Advocate General, Law Minister etc. This was because such appointments were made on the basis of competence and not caste creed religion or political affiliation. Subsequently, however, the post of government Counsel has steadily been politicalised and the result has been that very often the Court is not assisted properly and very often-incompetent persons are appointed as Government Counsel because of their political affiliation, caste or other extraneous consideration. This Court and the District court requires proper assistance from the Government Counsels. The interest of the State also suffers by appointing incompetent persons. Since Government have been changing very frequently in recent years in U. P. what has been happening is that whenever a new government comes many of the Government Counsels appointed by the previous government are sacked and in their places new persons are appointed not on merit but on the basis of caste, creed or political affiliations, which is subversive of the administration of justice. The court requires highly meritorious Government Counsel to dispense justice properly. The court requires highly meritorious Government Counsel to dispense justice properly. ( 5 ) IN our opinion the time has now come when the post of government Counsel should be given purely on merit irrespective of political affiliation, caste Creed or religion. The post of Government counsel is a responsible post, and it cannot be distributed as leaves of office on extraneous considerations. ( 6 ) IN the present case the recommendation has been made in the petitioners favour by the District Judge and it has also been recommended by the District Magistrate. We see no reason why the recommendation of the District Judge should be refused. In our opinion for the appointment of the post of DGC, Addl. DGC or Panel lawyers, ordinarily the recommendation of the District Judge must be accepted by the Government because the District Judge is the senior most Judicial Officer in the district and he is expected to know about the lawyers in the court. No doubt the District Magistrate has also to be consulted but ordinarily the District Judges recommendation must carry the greatest weight. If the Government is not agreeable to the recommendation of the District Judge then strong, cogent reasons must be assigned by the Government in writing irrespective of political affiliation, caste creed or religion or on any other extraneous consideration. ( 7 ) IN the present case the District Judge has recommended in favour of the petitioner and no good or cogent reason has been assigned for rejecting the recommendation of the District Judge. Hence we direct the petitioners term as OGC (Criminal) to be renewed forthwith by the State Government. ( 8 ) THE Supreme Court has observed in Special Reference No. 1 of 1998 that the Chief Justice of India means not the Chief Justice of india alone but in consultation with his four senior most colleagues. No doubt this judgement was given in the context of appointments of judges in the Supreme Court and High Courts, but in our opinion he spirit of the judgement is applicable to present case also since the intention was to keep the administration of justice away from political considerations. No doubt this judgement was given in the context of appointments of judges in the Supreme Court and High Courts, but in our opinion he spirit of the judgement is applicable to present case also since the intention was to keep the administration of justice away from political considerations. Hence in our opinion the District Judge should not make the recommendation alone but in consultation with the two senior most Judicial Officers in the District Court and also the CJM in the case of recommendations for appointments in the criminal side, and the senior most Civil Judge for appointments of the civil side and also the District Magistrate. In other words the recommendation shall be by a collegiunm headed by the District judge and consisting of the above mentioned five members (consisting of four judicial officers and the District Magistrate ). If two members disapprove the name no recommendation will be made. No name will be recommended if the District Judge disapproves. This is our opinion, will be in accordance with the norms laid down in the L. R. Mannual. Such a recommendation will ordinarily be treated as binding on the Government unless for some strong, cogent reasons to be recorded in writing if the Government disagrees. We again make it clear that the recommendation must be made purely on merit and competence ignoring caste, creed, religion or political affiliation. ( 9 ) IN Shrilekha Vidyarthi vs. State of U. P. A. I. R. 1991 S. C. 537 the Supreme Court held that Article 14 of the Constitution applies to appointment of Government Counsels in district courts. In our opinion the direction issued above will ensure non- arbitrariness in such appointments. In view of the above, the impugned order dated 18. 9. 98 is quashed. The petition is allowed. Petition Allowed. .