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Allahabad High Court · body

2017 DIGILAW 1189 (ALL)

KAMAL SINGH v. STATE OF U. P.

2017-05-04

ARUN TANDON, REKHA DIKSHIT

body2017
JUDGMENT By the Court.—The writ petition has been filed for quashing of the order dated 8.11.2016 (Annexure 6 to the Writ Petition) where under amongst other name of one Babu Singh Yadav, Advocate, Banda has been recommended by the State Government for being appointed as A.D.G.C.(Criminal) for representing the State in District Courts at Banda. The order is challenged basically on the ground that the penal as prepared in consultation with the District Judge, did not include the name of Babu Singh Yadav in any of the five panels prepared. Name of Babu Singh Yadav was included in the letter forwarded by the District Magistrate to the State Government in exercise of power under proviso to Clause 7 (3) of the L.R.Manual as amended under letter of the Government dated 30.7.2012. 2. According to the petitioner Proviso to Clause 7(3) of the L.R.Manual does confer a power upon the District Magistrate to include the name of the advocate, who has not submitted his application in response to the advertisement/information notified under proviso to Clause 7(3) of the L.R.Manual, but such power of the District Magistrate to include the name of non-applicant in the list will not result in diluting the requirement of consultation with the District Judge as is required under proviso to Clause 7(3) of the L.R.Manual. 3. Sri O.P.Singh, learned senior advocate assisted by Sri Ram Singh contended before this Court that the name of Babu Singh Yadav was included in the panel by the District Magistrate after necessary consultation with the District Judge, Banda as would be clear from the letter dated 11.7.2016. Therefore according to him there is no illegality. 4. In order to appreciate the correctness or otherwise of the stand as had been taken by the counsel for contesting parties, we vide order dated 24.4.2017 directed the respondent No. 2 to file his personal affidavit indicating as to whether the District Magistrate while exercising his power under Proviso to Rule 7(3) of the L.R.Manual is obliged to have the opinion of the District Judge in respect of the candidate, who had not applied for being considered for the post of District Government Counsel or not. vide subsequent order dated 27.4.2017 this Court required the Standing Counsel to produce the original records as available with the State Government in the matter of appointment of Babu Singh Yadav as A.G.D.C.(Criminal), District Court Banda. 5. vide subsequent order dated 27.4.2017 this Court required the Standing Counsel to produce the original records as available with the State Government in the matter of appointment of Babu Singh Yadav as A.G.D.C.(Criminal), District Court Banda. 5. Records have been produced and examined in the presence of learned counsel for the parties. 6. The records reflect that the District Magistrate had forwarded a list in consultation with the District Judge to the State Government vide his letter dated 12.7.2016. This list contained names of four advocates in each of the five panels. Name of Babu Singh Yadav finds mention at Sl.No. 1 in panel No. 3 of the said list. However, the State Government did not accept the recommendation so made and vide letter dated 21.7.2016 returned the list with the observation that under Proviso to Clause 7(3) of the L.R.Manual panel can consist of only three names and nothing beyond it. 7. In response to the letter of the State Government dated 21.7.2016 the District Magistrate, Banda forwarded a new list of advocates containing three names only in consultation with the District Judge. It contained three names in each of the five panels. In none of the 5 panels name of Babu Singh Yadav finds mention. It is therefore, clear that the name of Babu Singh Yadav was included in the panel as submitted in consultation with the District Judge. The District Magistrate under a note to the said panel has mentioned that name of Babu Singh Yadav is being included in 4th panel in exercise of power under Proviso to Rule 7 (3) of the L.R.Manual. 8. We further find from the record that the District Judge has not approved/consented to the inclusion of the name of Babu Singh Yadav in the panel as was notified by the District Magistrate under his letter dated 19.8.2016. 9. The issue which needs examination by us is as to whether the District Magistrate on his own can add the name of person in exercise of power under proviso to Clause 7(3) of the L.R.Manual as has been done in the facts of the present case without consultation with the District Judge. We may also record that in the counter-affidavit filed on behalf of the Special Secretary (Law) a copy of the letter of the District Judge, Banda dated 11.8.2016 has also been brought on record. We may also record that in the counter-affidavit filed on behalf of the Special Secretary (Law) a copy of the letter of the District Judge, Banda dated 11.8.2016 has also been brought on record. The letter records that having regard to the letter of the State Government objecting to the inclusion of four name in each of the five panels, a fresh list of 5 panels containing three names each is being recommended. In none of these panels name of Babu Singh Yadav finds mention. 10. It is, therefore, admitted on records that the District Judge has not consented to the inclusion of the name of Babu Singh Yadav as one of the candidate in the 4th panel for appointment as ADGC(Criminal). 11. For appreciating the controversy involved before us is, it is worthwhile to reproduce Clause 7(3) of L.R.Manual, as is amended vide notification dated 25.7.2012. It reads as follows: “Applications and Qualification-(1) whenever the post of any of the Government counsel in the district is likely to fall vacant within next three months, or when a new post has been created, the District Officer concerned shall notify the vacancy to the members of the Bar members eligible for consideration would be those having at their credit a practice of 10 years in case of District Government Counsel, 7 years in case of Additional District Government Counsel and 5 years in case of Sub-District Government Counsel. The District Officer shall ask those who want to be considered for appointment to a particular office to give their names to him with particulars such as,age, length of practice at the Bar, proficiency in Hindi, Income Tax paid by them on professional income during last 3 years and if not assessed the return submitted by them, if any, details of the work handled by them during the course of the proceeding two years duly verified by Court and whether they have practised on criminal, civil and revenue side. 2. The District Government Counsel and legal practitioner of the neighbouring district may also send the above particulars for the post of District Government Counsel through their district officers, who shall forward the same to the District Officer of the district in which the appointment is to be made, with such remarks as they deem fit. 3. The name so, received shall be considered by the District Officer in consultation with the District Judge. 3. The name 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 name of the legal practitioner for each post to the Legal Remembrance giving his own opinion particularly about his character, professional, conduct and integrity and the opinion of the District Judge on the suitability and merit, of each candidate. While forwarding his recommendation to the Legal Remembrance the District Officer shall also send to him the bio-data submitted by others incumbent 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 Hindi shall particularly to be taken into consideration. provided that it will also be open to the District Officer to recommend 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.” 12. It will be seen that under proviso to Rule 7(3) a power is conferred upon the District Magistrate to recommend the name of any person even though he may not applied or supplied his bio-data for consideration of his appointment. 13. In the facts of the case we find that Babu Singh Yadav had applied, as would be clear fromletter of the District Magistrate dated 12.7.2016, which panel was turned down by the State Government on the ground that it contained more names than permissible. 14. Therefore, in the facts and circumstances of the case the inclusion of name of Babu Singh Yadav in the panel by the District Magistrate on his own in exercise of power under proviso to Clause 7(3) of the L.R.Manual was not called for. 15. 14. Therefore, in the facts and circumstances of the case the inclusion of name of Babu Singh Yadav in the panel by the District Magistrate on his own in exercise of power under proviso to Clause 7(3) of the L.R.Manual was not called for. 15. We are of the considered opinion that before recommending the name of a candidate for being appointed as Government advocate in the District Court, consultation of the District Judge has been held to be mandatory as per the judgment of the Apex Court in the case of State of U.P. and another v. Johri Mal, 2004(5) AWC 4609(SC) in paragraph 87 whereof it has been held as follows: “87. The State should bear in mind the dicts of this Court in Mundrika Prasad Singh (Supra) as regard the necessity to consult the District Judge. While making appointments of District Government Counsel, therefore, the State should give primacy to the opinion of the District Judge,. Such a course of action would demonstrate fairness and reasonableness of action and, further more, to a large extent the action of the State would not be dubbed as politically motivated or otherwise arbitrary. As noticed herein before, there also does not exist any rationale behind deletion of the provision relating to consultation with the High Court in the matter of appointment of the the Public Prosecutors in the High Court. The said provision being a salutary one. It is expected that the State of U.P. either would suitably amend the same or despite deletion shall consult the High Court with a view to ensure fairness in action” 16. In our opinion, in view of the law laid down by the Apex Court in case of State of U.P. (Supra) and even otherwise consultation with the District Judge, is a must under Rule 7 (2) of the L.R.Manual. 17. We are of the considered opinion that the power of the District Magistrate to recommend the candidate for being appointed as Government advocate to represent the State before the district Court when a candidate has not applied or supplied his bio-data, under Proviso to Rule 7(3) will not do away with requirement of due consultation with the District Judge under Rule 7(2) of the L.R.Manual. 18. 18. In the facts and circumstances of the case, we are more than satisfied that the recommendation of the name of Babu Singh Yadav had been contrary toRule 7(2) and the Proviso to Clause 7(3) of the L.R.Manual by the District Magistrate. There has been no consultation with the District Judge in the matter of such inclusion of the name of Babu Singh Yadav in any of the 5 panels. 19. For all the aforesaid reasons, the writ petition is allowed. The appointment of Sri Babu Singh Yadav by the State Government on the basis of the letter of the District Judge dated 8.11.2016 cannot be legally sustained and is hereby quashed. The State Government is hereby directed to make appointment on the post of A.D.G.C.(Criminal) in the District Court, Banda strictly in accordance with law within a period of eight weeks from the date of production of a certified copy of this order before it. So far as the grievance of the petitioner qua non-consideration of his name in the panel submitted by the District Magistrate is concerned, he may make a representation before the State Government within six weeks from today alongwith the certified copy of this order. On such a representation being made, the State Government shall examine the same while taking a decision, as aforesaid. 20. Original records are returned to the Standing Counsel.