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Allahabad High Court · body

2006 DIGILAW 767 (ALL)

VIJAY GAUTAM v. STATE OF UTTAR PRADESH

2006-03-20

PRADEEP KANT, S.N.SHUKLA

body2006
( 1 ) THIS petition by Sri Vijay Gautam @ Vijay Pal Gautam challenges the order dated 17/9/1998 passed by the State Government, refusing the renewal of the term of the petitioner as District Government Counsel (Crl.)at Ghaziabad. ( 2 ) THE petitioner was engaged/appointed by the State Government as d. G. C. (Crl.) on 20th September1997. He applied for extension/renewal of his term as D. G. C. (Crl.) on or before expiry of period of one year. The district Judge gave his recommendation for renewing the term after obtaining a report from the Court of II Additional District Judge, ghaziabad, who gave his recommendation on the same day that, the work and professional conduct of the petitioner was good. The District Judge in his report dated 9/7/1998 stated that the work and conduct of the petitioner was satisfactory and he has no objection to renewal of his term. However, district Magistrate Sri Alok Kumar gave his opinion against the petitioner as he mentioned in his report dated 24/7/1998 that the general reputation of the petitioner in public was not good and that complaints against his integrity have been coming to him and his professional conduct was not of the required level and, therefore, in his opinion, it was not appropriate for him to continue on the post of D. G. C (Crl.) from administrative point of view. ( 3 ) ON the aforesaid report of the District Magistrate, the petitioners extension/renewal was refused, which was communicated to him by means of impugned order dated 17th September1998 and the consequent order passed by the District Magistrate was issued on 19th September, 1998, relieving the petitioner from the office of the D. G. C. (Crl ). ( 4 ) THE main thrust of attack to the aforesaid order is that Sri Alok kumar, the then District Magistrate was posted in District Ghaziabad only in the month of April,1998 and he submitted his report on 24. 7. 1998 i. e. within a period of approximately three months only to the State government regarding the doubtful integrity of the petitioner, though neither he had enough time to look to the work and conduct of the petitioner nor he had any occasion to see the professional conduct or his otherwise behaviour. 7. 1998 i. e. within a period of approximately three months only to the State government regarding the doubtful integrity of the petitioner, though neither he had enough time to look to the work and conduct of the petitioner nor he had any occasion to see the professional conduct or his otherwise behaviour. As a sequel to the aforesaid plea, it is also the case of the petitioner that he never came in contact with the District Magistrate, in regard to any work, nor he ever appeared before the District Magistrate, in connection with any work or otherwise and, therefore, the absolute vague and bald statement made in the report that the petitioner was not enjoying good reputation or that his professional conduct was not good or that there were complaints regarding his integrity, can only be treated as an allegation based on surmises and presumption without there being any material before the District Magistrate. There was nothing on record either before the district Magistrate or otherwise, so as to draw a presumption of bad reputation of the petitioner and doubtful integrity and despite it being mentioned in the report that complaints regarding integrity have been received, no such complaint finds place in the record. It is also being urged that in case the District Magistrate had formed any such opinion of his own, though there is no material, he ought to have consulted the District Judge before sending such a report and the State Government, while considering the report of the District Judge as well as the District Magistrate, ought to have verified the contents of the report of the District Magistrate from the district Judge or could have asked the District Magistrate to place the material, on the basis of which such vague report has been given and in any case if there was conflict in the two opinion/recommendations, primacy should have been given to the recommendations of the District Judge. ( 5 ) IN response the learned counsel for the State relies upon Para 7. 08 of the Legal Remembrancer Manual (hereinafter referred to as the L. R. Manual) saying that the procedure as prescribed was duly followed by the state for considering the renewal of the term of the petitioner. He also submitted that in any case, if any breach was committed by the State in following the procedure prescribed under Para 7. 08 of the Legal Remembrancer Manual (hereinafter referred to as the L. R. Manual) saying that the procedure as prescribed was duly followed by the state for considering the renewal of the term of the petitioner. He also submitted that in any case, if any breach was committed by the State in following the procedure prescribed under Para 7. 08, even such a breach would not give a right to the petitioner to maintain a petition under Article 226, since the provisions of the L. R. Manual are not statutory. He says that since renewal of the post of the District Government Counsel (Crl.) is a purely contractual matter, therefore, its breach cannot be adjudicated in writ jurisdiction of the High Court. ( 6 ) FURTHER defending the impugned order, he submitted that the present is not a case where the State Government had passed any order without there being any material before it, but admittedly opinion of the District magistrate as well as of the District Judge were before the State government and if the State Government, on consideration of the two reports and in particular that of the District Magistrate, refused to renew the term, it would not make a case of the order being passed on no material or in an arbitrary order. ( 7 ) RELIANCE is being placed upon the case of State of U. P. Vs. Johri mal , 2004 (4)SCC 714 for defining the scope of judicial review in the matter in support of submission that the scope of judicial review in the matter of renewal or appointment of the public prosecutor, is very limited. ( 8 ) THE scope of judicial review as has been explained by the Apex court is being summarised as under: (i) Courts, while exercising the power of judicial review, do not sit in appeal over the decisions of administrative bodies. (ii) A petition for a judicial review would lie only on certain well defined grounds. (iii) An order passed by an administrative authority exercising discretion vested in it, cannot be interfered in judicial review unless it is shown that exercise of discretion itself is perverse or illegal. (ii) A petition for a judicial review would lie only on certain well defined grounds. (iii) An order passed by an administrative authority exercising discretion vested in it, cannot be interfered in judicial review unless it is shown that exercise of discretion itself is perverse or illegal. (iv) A mere wrong decision without anything more is not enough to attract the power of judicial review; the supervisory jurisdiction conferred on a court is limited to seeing that the Tribunal functions within the limits of its authority and that its decisions do not occasion miscarriage of justice. (v) The courts cannot be called upon to undertake the government duties and functions. The court shall nor ordinarily interfere with a policy decision of the State. Social and economic belief of a judge should not be invoked as a substitute for the judgement of the legislative bodies. ( 9 ) THE Court further observed that it is well settled that while exercising the power of judicial review the court is more concerned with the decision-making process than the merit of the decision itself. In doing so, it is often argued by the defender of an impugned decision that the court is not competent to exercise its power when there are serious disputed questions of facts; when the decision of the Tribunal or the decision of the fact-finding body or the arbitrator is given finality by the statute which governs a given situation or which, by nature of the activity the decision-makers opinion on facts is final. But while examining and scrutinising the decision-making process it becomes inevitable to also appreciate the facts of a given case as otherwise the decision cannot be tested under the grounds of illegality, irrationality or procedural impropriety. How far the court of judicial review can reappreciate the findings of facts depends on the ground of judicial review. For example, if a decision is challenged as irrational, it would be well nigh impossible to record a finding whether a decision is rational or irrational without first evaluating the facts of the case and coming to a plausible conclusion and then testing the decision of the authority on the touchstone of the tests laid down by the court with special reference to a given case. This position is well settled in the Indian administrative law. This position is well settled in the Indian administrative law. Therefore, to a limited extent of scrutinising the decision-making process, it is always open to the court to review the evaluation of facts by the decision-maker. ( 10 ) THE Apex Court in paragraph 32 of the report dealing with the present status of judicial review in the American context, summarised as under:-"if the scope of judicial enquiry must not be so restricted that it prevents full enquiry into the action of legality. If that question cannot be properly explored by the judge, the right to review becomes meaningless in the final analysis, the scope of review depends on the individual judges estimate of the justice of the case. " ( 11 ) THE Apex Court in paragraph 40 has held as under :-"so long as in appointing a counsel the procedures laid down under the Code of Criminal Procedure are followed and a reasonable or fair procedure is adopted, the court will normally not interfere with the decision. The nature of the office held by a lawyer vis-vis the State being in the nature of professional engagements, the courts are normally chary to overturn any decision unless an exceptional case is made out. The question as to whether the State is satisfied with the performance of its counsel or not is primarily a matter between it and the counsel. The Code of Criminal Procedure does not speak of renewal or extension of tenure. The extension of tenure of Public Prosecutor or the District counsel should not be compared with the right of renewal under a licence or permit granted under a statute. The incumbent has no legal enforceable right as such. The action of the State in not renewing the tenure can be subjected to judicial scrutiny inter alia on the ground that the same is arbitrary. The courts normally would not delve into the records with a view to ascertain as to what impelled the State not to renew the tenure of a Public Prosecutor or a district Counsel. The jurisdiction of the courts in a case of this nature would be to invoke the doctrine of "wednesbury unreasonableness". The courts normally would not delve into the records with a view to ascertain as to what impelled the State not to renew the tenure of a Public Prosecutor or a district Counsel. The jurisdiction of the courts in a case of this nature would be to invoke the doctrine of "wednesbury unreasonableness". ( 12 ) THE Supreme Court further held that the State, however, while appointing a counsel must take into account the following fundamental principles which are required to be observed that good and competent lawyers are required to be appointed for (i) good administration of justice; (ii) to fulfil its duty to uphold the rule of law; (iii) its accountability to the public; and (iv) expenditure from the tax payers money and it is no doubt true that even in the matter of extension or renewal of the term of Public prosecutors, the State is required to act fairly and reasonably. In Johari Mals case, Supreme Court defines the limitation of the judicial review in the matter of grant of renewal/extension of the tenure of the public prosecutor and permits to see whether the order passed by the state Government is arbitrary or has been passed in consonance with the provisions of the Legal Remembrancers Manual and for that matter also allows entering into the facts for evaluation of facts looking to the circumstance of the particular case. The Court has also found that the court cannot act as rubber-stamp to put the seal on every decision taken by the State Government. ( 13 ) THE pronouncement made by the Apex Court in Johari Mals case persuades us to reject the plea that since the appointment of D. G. C. (Crl.)by the State is purely a contractual assignment, therefore, no writ would lie or that the breach of the provisions of the L. R. Manual would not give a cause of action to the petitioner for approaching this Court under Article 226 of the Constitution. In considering the challenge to an order refusing the renewal of the term, the Court has to see and examine the facts and circumstances of each and every case. In considering the challenge to an order refusing the renewal of the term, the Court has to see and examine the facts and circumstances of each and every case. It has to take into consideration, the nature of the recommendations made by the District Judge as well as the district Magistrate, the procedure followed in making such recommendations, the adherence to the provisions of L. R. Manual and all such other relevant factors, which may be necessary in a particular case for the purpose and, therefore, no hard and fast Rule can be laid down that in every case of renewal/extension of the term, the petition would lie or not. However, it is no more in dispute that merely because the Public Prosecutor has got no right of renewal under the Code of Criminal Procedure, they cannot stand debarred from approaching the Court under Article 226 of the constitution, in case they are aggrieved by the refusal of renewal and also from raising such points/pleas, which are otherwise permissible. ( 14 ) IN the instant case, the report of the District Judge favoured the renewal of the term of the petitioner but the District Magistrate gave his opinion otherwise. The tenure of the District Magistrate, during which he was supposed to know the work, conduct and behaviour of the petitioner, was only approximately three months. The text of the report of the District magistrate reads as under:"is sambandh mein mujhe yeh kahna hai ki jan sadharan me Sri vijay Gautam is khyati achhi nahin hai aur inki satyanishtha ke sambandh mein bhi pratikool baatein mere samaksh aati rahin hain. Inka vyavsayik aachran bhi aapekshit star ka nahin hai aur kul milakar Sri Vijay Gautam ka Zila Shasakiye Adhivakta (Fau.), ghaziabad ke pad par aur aage bane rahna prashaskiye drishti se upyukt nahin hoga. " ( 15 ) A perusal of the aforesaid report gives an impression that the district Magistrate has been couched his report in a language that it meets the requirement of sub-clause 3 of Para 7. 08 of the of L. R. Manual. The material on the basis of which such an opinion was formed, or the information gathered, does not find mention in the report, nor even there is any inkling of any single complaint, which might have been received by him against the petitioner. 08 of the of L. R. Manual. The material on the basis of which such an opinion was formed, or the information gathered, does not find mention in the report, nor even there is any inkling of any single complaint, which might have been received by him against the petitioner. The report though does say that the District magistrate had been receiving complaints against his integrity but to say the least not a single instance has been quoted. A general and sweeping statement about the reputation of the petitioner and complaints against his integrity has been made in the report so as to befit the requirement of sub-clause 3 of Para 7. 08 of L. R. Manual. ( 16 ) FROM the very fact that the District Magistrate was there only for a period of three months and during all this period, the petitioner was never required to appear before the District Magistrate and the District Magistrate had no occasion to evaluate the professional conduct and his conduct otherwise on any occasion, it can hardly be believed that the report submitted by the District Magistrate was based on some factual events or material, which might have come to the knowledge of the District magistrate. If the District Magistrate was having some report against the petitioner, and was to submit his opinion against the recommendation of the district Judge, it would have been better if he had disclosed such material in the report and in any case ought to have consulted the District Judge before submitting the report. ( 17 ) IT is true that the conclusion arrived at by the District Magistrate or the opinion expressed by him can not be a subject matter of scrutiny by the court but the material on the basis of which such an opinion has been formed can very well be looked into and judicially scrutinised, so at to find out that whether the opinion/information is based on facts or is arbitrary and not based on any material. Even in the counter affidavit filed by the State government and despite the petition being pending in this Court for approximately 8 years, no material has been brought on record to indicate or substantiate the report of the District Magistrate. Even in the counter affidavit filed by the State government and despite the petition being pending in this Court for approximately 8 years, no material has been brought on record to indicate or substantiate the report of the District Magistrate. ( 18 ) SENDING a report with the allegation that the incumbent does not enjoy good reputation in general public and that complaints about his integrity have been received or that his professional conduct is not good with administrative point of view, without any basis and without there being any material and without making any enquiry and that too without making any consultation with the District Judge, cannot be said to be a valid compliance of the provisions of the L. R. Manual. Such a report, which is based on pure surmises and conjectures, cannot be a basis for refusal. ( 19 ) IN the case of Raghubir Saran Bajpai and others Vs. State of U. P. and others reported in (1993) 3 UPLBEC 1603 almost a similar controversy came before a Division Bench of this Court wherein the renewal of the District Government Counsel (Crl.) was refused by the State government on the report of District Magistrate, who had reported that the term of the petitioner and certain other Advocates be not extended. In his report, the District Magistrate, Jhansi stated that the work and conduct of the petitioner and his reputation and integrity was not satisfactory. The State government refused to extend the term. The Court after considering the provisions of Para 7. 08 of the L. R. Manual, observed that it is true that the term of a Government Counsel is to be extended after carefully scrutinising the actual work and the cases conducted by such Government Counsel, his performance in the Court, as well as his public reputation in general, his character and integrity, but the Government has to apply its mind giving emphasis on all these aspects on the basis of the material placed before it. As found above that the opinion of the District Magistrate was not based on any material and the State Government having formed the opinion on such report, such orders cannot be sustained. ( 20 ) IN case of G. K. Bajpayee and others Vs. State of Uttar Pradesh reported in 2005a. As found above that the opinion of the District Magistrate was not based on any material and the State Government having formed the opinion on such report, such orders cannot be sustained. ( 20 ) IN case of G. K. Bajpayee and others Vs. State of Uttar Pradesh reported in 2005a. I. R. (Allahabad) 65, again a question arose regarding the renewal of the term of the Public Prosecutor, wherein conflicting reports were given by the District Judge and the District Magistrate. The Court considered and opined that in case there is a conflict of opinion between the District Magistrate and the District Judge then in what manner the State Government should consider the question of renewal of a public Prosecutor. In the aforesaid case, there were complaints that all the district Government Counsel were extracting money from the Advocates and there were general allegations against their integrity and conduct. Renewal was refused on the basis of the report of the District Magistrate. The Division Bench after considering the provisions of the L. R. Manual and also various judgements, concluded that the recommendation of the District Magistrate was wholly erroneous and based on non application of mind and that the report/ recommendation of the District Magistrate was not based on the parameters laid down in paragraphs 7. 08 of the L. Rs. Manual The District Magistrate is required to give his report about the suitability of the District Government Counsel from the administrative point of view, his reputation in public, has character, integrity and professional conduct which was not done by the District Magistrate. The complaints made with respect to the integrity and allegations of extracting the money and that petitioners were engaged in political activities, were not found to be based on any material. The complaints made with respect to the integrity and allegations of extracting the money and that petitioners were engaged in political activities, were not found to be based on any material. ( 21 ) THE Court also took into consideration that in view of the conflicting opinions of the District Judge as well as District Magistrate, the District magistrate ought to have consulted the District Judge before sending the recommendation and that in any case State Government while considering the renewal/ extension of the term should have given due preference or primacy to the recommendation of the District Judge which has not been done, The relevant paragraph of the said report says as under:-"it may also be stated here that the State Government has not stated anything in their affidavit as to why the opinion of the District Judge was not considered or on what grounds the opinion of the District judge was rejected. The State Government is totally silent on this issue. In our view, the opinion of the District Judge could not be brushed aside or treated in a casual manner. The Supreme Court in johri Mal ( AIR 2004 SC 3800 ) held that the State Government should give primacy to the opinion of the District Judge. In the present, the State Government has not given any reason as to why they have not given primacy to this. Court in Virendra Pal Singh ranas case (2003 All LJ 2621) (Supra) held that in case of a conflict of opinion of the District Magistrate and that of the District judge, in that even, the opinion of the district Judge would prevail over the opinion of the District Magistrate, The Special Leave petition of the State against this judgement before the Supreme court was dismissed. Therefore, the Division Bench judgement of this Court was binding upon the State Government. " ( 22 ) IN the instant case but for the bald allegations made in the report of the District Magistrate about the public reputation of the petitioner and doubtful integrity, there is nothing on record on the basis of which his extension could have been refused. ( 23 ) THE Para 7. 08 of the L. Rs. Manual reads as under-7. ( 23 ) THE Para 7. 08 of the L. Rs. Manual reads as under-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 Remembrance, 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 recommendation 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 given an estimate of the quality of the Counsels work from the Judicial stand point, keeping in view the different aspect of a lawyers 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 re-appointing him for a period not exceeding three years. (5) If the Government decides not to re-appoint a Government counsel, the Legal Remembrancer may call upon the District officer to forward fresh recommendations 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. Sub para (1) aforesaid, specifically makes the provisions of consultation by the District Magistrate with the District Judge. The report and their nature have also been illustrated in the aforesaid provision. 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. Sub para (1) aforesaid, specifically makes the provisions of consultation by the District Magistrate with the District Judge. The report and their nature have also been illustrated in the aforesaid provision. Admittedly and obviously, in the present case, two reports, one sent by the District Judge and the other by the District Magistrate were sent independently i. e. the District Magistrate sent his report after the report of the District Judge was received by him but at no point of time the District magistrate made any consultation with the District Judge. The District magistrate also did not bring in the notice of the District Judge that that his report need be reconsidered in view of the fact that there were certain complaints about the reputation of the petitioner and he was having complaints against his integrity. Thus without making any disclosure of any such material even to the District Judge and without giving any such material or disclosing it to the State Government, report was submitted by the District Magistrate. The report was submitted by the District Magistrate purely on assumptions, without there being any material. The District magistrate thus, did not adopt the procedure or the process prescribed under the L. R. Manual and the State Government, in its turn, also did not make any attempt to verify the report of the District Magistrate, though it was sent without consulting the District Judge. In view of the judgement in the case of G. K. Bajpayee (supra), in a situation of conflict of opinion between the district Judge and the District Magistrate, primacy ought to have been given to the recommendations of the District Judge. For the reasons stated above, the impugned orders cannot be sustained and are liable to the quashed. ( 24 ) WE, therefore, quash the impugned order dated 17/9/1998 (Annexure No. 1) and also the reliving order dated 19/9/1998 (Annexure no. For the reasons stated above, the impugned orders cannot be sustained and are liable to the quashed. ( 24 ) WE, therefore, quash the impugned order dated 17/9/1998 (Annexure No. 1) and also the reliving order dated 19/9/1998 (Annexure no. 2) and direct the State Government to re-consider the matter afresh, and accordingly, issue a writ in the nature of mandamus directing the District magistrate, Ghaziabad to initiate the fresh exercise for the renewal of the appointment of the petitioner on the post of District Government Counsel (Crl.), Ghaziabad and submit his report after consultation with the District judge to the State Government within three weeks from the date of receipt of a certified copy of this order. The State Government on its turn shall also take appropriate decision, in regard to the petitioners continuance as district Government Counsel (Crl.), as per Rules and the material produced, expeditiously and without any unreasonable delay, say, preferably within next four weeks from the date of receipt of the recommendations. The petition is allowed. No order as to costs. .