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2016 DIGILAW 2843 (ALL)

Kamlesh Shukla v. State of U. P.

2016-08-17

MAHESH CHANDRA TRIPATHI, V.K.SHUKLA

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JUDGMENT : V.K. SHUKLA, MAHESH CHANDRA TRIPATHI, JJ. 1. Kamlesh Shukla is before this Court assailing the advertisement dated 21.3.2013 issued by the District Magistrate, Jaunpur, whereby he invited the application forms for the appointment of District Government Counsels, Additional District Government Counsels for the District Jaunpur; and further challenging the entire process initiated in pursuance of aforesaid advertisement, including the list dated 8.7.2013 and 28.2.2014 for Additional District Government Counsel (Criminal), Jaunpur made by the District Judge, Jaunpur and District Magistrate, Jaunpur respectively, and for further direction to the respondents to consider the petitioner's candidature for the post of Additional District Government Counsel (Criminal), Jaunpur. 2. As per record, this much is reflected that the petitioner was appointed on the post of Assistant District Government Counsel (Criminal), Jaunpur [in short "ADGC (Criminal)] on 8.8.2011 upto 4.8.2012. Subsequently, a recommendation for renewal of the petitioner for aforesaid was made by the District and Sessions Judge, Jaunpur on 16.10.2012. On 6.7.2012 an order was passed by the District Magistrate, Jaunpur continuing the services of the petitioner as ADGC (Criminal). This much is also reflected from the record that thereafter on 15.3.2013 the District Magistrate passed an order terminating the petitioner from the post of ADGC (Criminal), Jaunpur. 3. On 21.3.2013 an advertisement for the post of ADGC (Criminal) has been advertised by the District Magistrate, Jaunpur. Pursuant thereto the petitioner had also made an application for the post of ADGC (Criminal), Jaunpur on 5.4.2013. In this background, the petitioner claims that even though the District and Sessions Judge, Jaunpur had recommended for his renewal on the post of ADGC (Criminal), Jaunpur and without deciding the same fresh advertisement for the post in question cannot be made by the District Magistrate, Jaunpur. It is also averred that till today the petitioner's renewal matter has not been considered by the authorities concerned. Meanwhile, the respondents had proceeded to send certain recommendations for the post in question but on 6.6.2014, the Special Secretary, Government of U.P. raised certain objections regarding the said lists as they were made against the rules prescribed. In this background, the petitioner has proceeded to file the present writ petition in apprehension that the respondents are intending to proceed in the matter and appoint the ADGC (Criminal), Jaunpur but at the same time, deliberately they have not processed the application for his renewal. In this background, the petitioner has proceeded to file the present writ petition in apprehension that the respondents are intending to proceed in the matter and appoint the ADGC (Criminal), Jaunpur but at the same time, deliberately they have not processed the application for his renewal. Reliance has also been placed in sub-clause (3) of Clause 7.03 of the Legal Remembrancer's Manual, which is quoted as below:- "(3) The names so received shall be considered by the District Officer in consultation with the District Judge. The District Officer shall give due weight to the claim of the existing incumbents (Additional/Assistant District Government Counsel), if any, and shall submit confidentially in order of preference the names of the legal practitioners for each post to the Legal Remembrancer giving his own opinion particularly about his character, professional conduct and integrity and the opinion of the District Judge on the suitability and merits, of each candidate. While forwarding his recommendations to the Legal Remembrancer the District Officer shall also send to him the bio-data submitted by other incumbents with such comments as he and the District Judge may like to make. In making the recommendations, the proficiency of the candidate in civil or criminal or revenue law, as the case may be, as well as in Hindi shall particularly be taken into consideration; Provided that it will also be open to the District Officer to recommend the name of any person, who may be considered fit, even though he may not have formally supplied his bio-data for being considered for appointment. The willingness of such a person to accept the appointment if made shall, however, be obtained before his name is recommended." 4. In this background, learned counsel for the petitioner has vehemently contended that the track record of the petitioner as ADGC (Criminal) is excellent and at no point of time any complaint whatsoever has been made against the petitioner. Once the District Judge, Jaunpur has recommended for renewal of his engagement, without deciding the same, the respondents cannot fill up the post in question and as such this Court should come to rescue and reprieve of the petitioner. 5. On the other hand, learned Standing Counsel has vehemently opposed the writ petition and submits that the reliefs sought by means of present writ petition cannot be accorded. 5. On the other hand, learned Standing Counsel has vehemently opposed the writ petition and submits that the reliefs sought by means of present writ petition cannot be accorded. Once the name of the petitioner had not been short-listed and the State Government has proceeded strictly in accordance with the L.R. Manual and as per the directives so issued by Hon'ble the Apex court and there has not been any deviation from the L.R. Manual and Rules and as such the claim set up by the petitioner cannot be substantiated. The petitioner does not have any indefeasible right to claim for such post. 6. We have occasion to perused the record and we find that in response to the directives so issued by Hon'ble Apex Court dated 13.11.2013 in Civil Appeal No.10290 of 2013, State of U.P. and Ors. v. Ajay Kumar Sharma and Anr. reported in 2013 STPL (Web) 913 SC, the State Government issued a Government Order dated 20.12.2013 directing therein to provide the list/details of the District Government Counsels, whose applications were pending for renewal with the recommendation of the District Magistrate and consent of the District Judge in accordance with the provisions contained in Chapter-7, Para 7.08 of L.R. manual. Pursuant to the said Government Order, no doubt the District Judge gave his consent on 14.2.2014 and consequently the original papers were also transmitted to the Principal Secretary (Law), Government of U.P., Lucknow through letter dated 28.2.2014 in which the name of the petitioner was included. The State Government vide letter dated 30.5.2014 has taken a decision that there was no justification of renewal of the petitioner, the then ADGC (Criminal). He was free to apply against the vacant posts and in case any such application is moved, the same would be decided in accordance with law and rules. In response to the advertisement for the post of ADGC (Criminal), list had been finalised and relevant papers were transmitted to the State Government with the consent of the District Judge in which the name of the petitioner was not included. Thereafter, it appears that the State Government has sent back the panel with direction to send the revised panel in accordance with the L.R. Manual. Thereafter, the required panel was again sent to the State Government. Since thereafter nothing has been brought before this Court to indicate that subsequent to it any names have been finalised. Thereafter, it appears that the State Government has sent back the panel with direction to send the revised panel in accordance with the L.R. Manual. Thereafter, the required panel was again sent to the State Government. Since thereafter nothing has been brought before this Court to indicate that subsequent to it any names have been finalised. 7. The present dispute has been travelled upto Hon'ble the Apex Court in State of U.P. and Ors. v. Ajay Kumar Sharma and Anr. (Supra) and Hon'ble the Apex Court has proceeded to consider the Legal Remembrancer's Manual (LR Manual) framed by the Government of Uttar Pradesh and section 24 of the Code of Criminal Procedure, 1973 which contains a comprehensive mechanism for appointment of District Government Counsel for Civil, Criminal and Revenue Courts in the State and renewal of their term. The Apex Court while deciding the matter in hand has proceeded to direct the State Government to fill up the existing vacant post by considering the cases of all eligible persons strictly in accordance with the relevant provisions of LR Manual read with section 24 Cr.P.C., 1973 and the judgments in State of U.P. vs. Johhri Mal case reported in (2004) 4 SCC 714 and Rakesh Kumar Keshari vs. State Of U.P. case reported in (2011) 5 SCC 341 . The relevant paragraph of the judgment is quoted as under:- "19. We have given serious thought to the entire matter. About 100 writ petitions with prayer similar to those contained in Writ Petition No.9127/2012 are pending before the High Court. The question whether the existing District Government Counsel and Additional District Government Counsel are entitled to renewal of their term as of right or the State Government is required to act in consonance with paragraph 7.08 of the LR Manual and the judgments of this Court in Johri Mal's case and Rakesh Kumar Keshari's case, is yet to be decided. Therefore, the Division Bench of the High Court was not at all justified in issuing an interim mandamus for renewal of the appointments of respondent Nos. 1 and 2. Therefore, the Division Bench of the High Court was not at all justified in issuing an interim mandamus for renewal of the appointments of respondent Nos. 1 and 2. While doing so, the High Court ignored the law laid down in Ramesh Chandra Sharma's case, Harpal Singh Chauhan's case, Johri Mal's case and Rakesh Kumar Keshari's case as also Ashok Kumar Nigam's case, that appointment of District Government Counsel and renewal of their term is required to be made in accordance with the provisions of LR Manual read with Section 24 Cr.P.C., 1973 20. While renewing the term of the appointment of the existing incumbents the State Government is required to consider their past performance and conduct in the light of the recommendations made by the District Judges and the District Magistrates. Therefore, the High Court could not have issued a mandamus for renewal of the term of respondent Nos. 1 and 2 and other similarly situated persons and thereby frustrated the provisions of LR Manual and Section 24 Cr.P.C., 1973 21. In the premise aforesaid, the appeal is allowed and the impugned order is set aside. The State Government shall now fill up the existing vacant posts by considering the cases of all eligible persons strictly in accordance with the relevant provisions of LR Manual read with Section 24 Cr.P.C., 1973 and the judgments of this Court in Johri Mal's case and Rakesh Kumar Keshari's case. The District Judges and the District Magistrates, who are required to be consulted by the State Government, are expected to make objective assessment of the work, conduct and performance of the candidates and make recommendations keeping in view larger public interest in contradistinction to the interest of the particular political party. 22. The cases of renewal of appointment of the existing incumbent shall likewise be considered in accordance with the provisions contained in LR Manual and the judgments of this Court. This exercise shall be undertaken and completed within a period of four months from today. 23. The Registry is directed to send a copy of this order to the Registrar General of the Allahabad High Court who shall place the matter before the Chief Justice of the High Court. The learned Chief Justice may consider the desirability of posting all the matters before one Bench to facilitate expeditious adjudication of the pending matters." 8. 23. The Registry is directed to send a copy of this order to the Registrar General of the Allahabad High Court who shall place the matter before the Chief Justice of the High Court. The learned Chief Justice may consider the desirability of posting all the matters before one Bench to facilitate expeditious adjudication of the pending matters." 8. Once such is the situation that is so emerging, there is no need to pass any further order in the matter. We hope and trust that the State Government would definitely proceed in the matter strictly as per the observations made by Hon'ble Apex Court in State of U.P. and Ors. v. Ajay Kumar Sharma and Anr. (Supra). 9. With the aforesaid observations, the writ petition stands disposed of.