TaxTMI 
TaxTMI 
2004 (4) TMI 588
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.... Public Prosecutor is governed by the Code of Criminal Procedure, 1973. The State of Uttar Pradesh, however, amended Section 24 of the Code of Criminal Procedure in terms whereof the requirements to consult the High Court for appointment of Public Prosecutors for the High Court as contained in sub-section (1) of Section 24 as also sub-sections (4),(5) and (6)thereof were deleted. Renewal of terms of the District Government Counsel, are, however, governed by Legal Remembrancer Manual. The first respondent herein was appointed as District Government Counsel (DGC) (Criminal) at Meerut on or about 7.01.1983. The said post is deemed to be that of Public Prosecutor within the meaning of Section 24 of the Code of Criminal Procedure. His term was renewed by an order dated 12.03.1996. He was again appointed in the same capacity by an order dated 17.09.1997 for a period of one year. Before expiry of the said period, the respondent applied for renewal of his tenure. Allegedly, the District Judge and the District Magistrate did not recommend therefor. The State Government decided not to renew the term of the respondent as DGC (Criminal) and by an order dated 18.9.1998 he was relieved from the....
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....y 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." Contending that the said judgment contains an error of record as the case of the first respondent had not been recommended by the District Judge or the District Magistrate concerned, an application for recalling of the judgment was filed by the appellant herein but the same was disposed of directing that the question regarding renewal of the respondent's term as DGC (Criminal) shall be considered afresh by the collegium headed by the District Judge constituted in the said judgment and the State Government shall act on the recommendations thereof. SUBMISSIONS: Mr. Ashok Kumar Srivastava, learned counsel appearing on behalf of the appellant would urge that the High Court proceeded on a wrong premise that the recommendations for renewal of terms of D.G.C. (Crl.) had been made by the District Magistrate in favour of the first respondent. Our attention in this behalf has been drawn to the opinion of....
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....ions Judge, prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutor or Additional public Prosecutors for the district. (5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4). (6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre: Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub-section (4)." However, the State of U.P. by Act No. 18 of 1991 with effect from 16.2.1991 amended Sub-Section (1) of Section 24 of the Code of Criminal Procedure in the following terms: "in sub-se....
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....ta 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." Para 7.04 of the said Manual provides that on receipt of the recommendations of the District Officer, the Legal Remembrancer may make further enquiry and submit the recommendations as also for orders of the State Government. The decision of the State Government would be final. Para 7.05 prohibits canvassing by or on the part of a candidate which would entail disqualification. Paras 7.06, 7.07 and 7.08 read thus: "7.06. Appointment and renewal-(1) The legal practioner finally selected by the Government may be appointed District Government Counsel for one year from the date of his taking over charge. (2) At the end of the aforesaid period, the District Officer after consulting the District Judge shall submit a report on his work and conduct to the Legal Remembrancer together with the statement of work done in Form no.9. Should his work or conduct be found to be unsatisfactory the matter shall be reported to the Government for orders. If the report in respect of his work and conduct is satisfactory, he may ....
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....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." A supplementary provision has been made in Chapter XXI of the said Manual for appointment and renewal of the post of public prosecutors. It inter alia contains the guidelines and clarifies that the appointment of DGC (Criminal), the change of designation of the public prosecutors could not effect the basic nature of their professional engagement. It further provides that such professional engagement is terminated on either side without notice and without assigning any reason. It is stated that the appointment of public prosecutor and Addl. Prosecutor both for the High Court and District shall be made in accordance with Section 24 of the new Code. Para 21.04 provides for constitution of a panel of five years....
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.... Ltd. and Ors. [AIR 1986 SC 1370], F.C.I. and Ors. Vs. Jagannath Dutta and Ors., [AIR 1993 SC 1494], State of Gujarat and Ors. Vs. Meghji Pethraj Shah Charitable Trust and Ors., [(1994) 3 SCC 552], Assistant Excise Commissioner and Ors. Vs. Issac Peter and Ors., (1994) 4 SCC 104], National Highway Authority of India Vs. M/s. Ganga Enterprises & Anr. 2003 (7) SCALE 171) In any event, the modern trend also points to judicial restraint in administration action as has been held in Tata Cellular Vs. Union of India [(1994) 6 SCC 651]. (See also Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation and Others [(2000) 5 SCC 287] and W.B. State Electricity Board Vs. Patel Engineering Co. Ltd. and Others [(2001) 2 SCC 451)] and L.I.C. and Anr. vs. Consumer Education and Research Centre and Ors., [AIR 1995 SC 1811]. The legal right of an individual may be founded upon a contract or a statute or an instrument having the force of law. For a public law remedy enforceable under Article 226 of the Constitution, the actions of the authority need to fall in the realm of public law -be it a legislative act or the State, an executive act of the State or an instrumentality....
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....ch in Cattermole supports the view that, albeit that caution must be exercised by this Court when faced with an allegation that a foreign state is in breach of its international obligations, this Court does not need the statutory context in order to be free to express a view in relation to what it conceives to be a clear breach of its international obligations, this Court does not need the statutory context in order to be free to express a view in relation to what it conceives to be a clear breach of international law, particularly in the context of human rights." In Council of Civil Services Unions Vs. Minister of Civil Service the power of judicial review was restricted ordinarily to illegality, irrationality and impropriety stating: "If the power has been exercised on a non-consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated." The Scope and extent of power of the judicial review of the High Court contained in Article 226 of....
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.... 'lawful or unlawful?' Rights of appeal are always statutory. Judicial review, on the other hand, is the exercise of the court's inherent power to determine whether action is lawful or not and to award suitable relief. For this no statutory authority is necessary: the court is simply performing its ordinary functions in order to enforce the law. The basis of judicial review, therefore, is common law. This is none the less true because nearly all cases in administrative law arise under some Act of Parliament. Where the Court quashes an order made by a minister under some Act, it typically uses its common law power to declare that the Act did not entitle the minister to do what he did and that he was in some way exceeding or abusing his powers. Judicial review thus is a fundamental mechanism for keeping public authorities within due bounds and for upholding the rule of law. Instead of substituting its own decision for that of some other body, as happens when on appeal, the court on review is concerned only with the question whether the act or order under attack should be allowed to stand or not. If the Home Secretary revokes a television licence unlawfully, the court ma....
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.... to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized or enjoined by law to decide for itself a conclusion which is correct in the eyes of the court." Prof. Bernard Schwartz in his celebrated book (Administrative Law, III Edn. Little Brown Company 1991) dealing with the present status of judicial review in American context, summarized as under: "If the scope of review is too broad, agencies are turned into little more than media for the transmission of cases to the Courts. That would destroy the values of agencies, created to secure the benefit of special knowledge acquired through continuous administration in the complicated fields. At the same time, Court should not rubber-stamp agencies; 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." Prof. Clive Lewis in his book (Judicial Remedies in....
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.... have been distilled from the system of remedies, as the remedies have been extended and adapted from one class of case to another. There is no better example than habeas corpus. This remedy, since the sixteenth century the chief cornerstone of personal liberty, grew out of a medieval writ which at first played an inconspicuous part in the law of procedure: it was used to secure the appearance of a party, in particular where he was in detention by some inferior court. It was later invoked to challenge detention by the king and by the Council; and finally it became the standard procedure by which the legality of any imprisonment could be tested. The right to personal freedom was almost a by-product of the procedural rules. This tendency has both good and bad effects. It is good in that the emphasis falls on the practical methods of enforcing any right. Efficient remedies are of the utmost importance, and the remedies provided by English administrative law are notably efficient. But sometimes the remedy comes to be looked upon as a thing in itself, divorced from the legal policy to which it ought to give expression. In the past this has led to gaps and anomalies, and to a confusion....
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....s 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' as developed in Associated Picture House vs. Wednesbury Corporation (1947) 2 All ER 640). In Om Kumar and Others vs. Union of India [(2001) 2 SCC 386], it was held that where administrative action is challenged under Article 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the constitutional courts as primary reviewi....
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.... for renewal or extension of a term. Evidently, the Legislature thought it fit to leave such matters at the discretion of the State. 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. The State normally would be bound to follow the principles laid down in the Legal Remembrancer Manual. CORRECTNESS OF THE HIGH COURT JUDGMENT: It appears that Shri K.S. Rakhra, District Judge, Meerut by his letter dated 11th September, 1998 addressed to the District Magistrate, Meerut although observed that the work and conduct of the respondent was satisfactory and he had not received any complaint in regard to his integrity, but it was stated: "I, however, agree with your view that the work of the D.G.C. (Crl.) also requires effective control over his team and proper analysis of the result of the trial and follow up action including remedial steps to improve the efficiency of the prosecution as a whole. Your letter suggests that in your monthly meetings you have found that Shri Johri Mal does not exercise effective control over the Additional D.G.C. (Crl.) and Asstt. D.G.C. (Crl.) and that h....
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.... stated: "That in para 22 of the writ petition the petitioner has made a false statement that on the renewal application of the petitioner the District Judge,Meerut and respondent No. 2 made favourable reports and the renewal of the petitioner was recommended." The very premise whereupon the High Court has based its decisions, therefore, was incorrect. The impugned judgment, thus, cannot be sustained as it suffers from misdirection in law. A Public Prosecutor is not only required to show his professional competence but is also required to discharge certain administrative functions. The District Officer was of the opinion that in a district like Meerut the term of the appointment should not be extended as he has no effective control over the other ADGs for 'taking steps'. The approach of the District Officer cannot be said to be wholly irrational. As noticed hereinbefore, the District Judge, Meerut has also agreed thereto. The action on the part of the State, therefore, cannot be said to be wholly without jurisdiction requiring interference by the High Court in exercise of its power of judicial review. COLLEGIUM: Whether the High Court was right in its direction in the....
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....e to lay stress on the fact that the consultation with the District Judge must be an effective one. The District Judge in turn would be well advised to take his colleagues into confidence so that only meritorious and competent persons who can maintain the standard of public office can be found out. The High Court failed to consider that the power under Article 226 of the Constitution of India is not at par with the constitutional jurisdiction conferred upon this Court under Article 142 of the Constitution of India. The High Court has no jurisdiction to direct formulation of a new legal principle or a new procedure which would be contrary to and inconsistent with a statutory provision like Code of Criminal Procedure. (See State of Himachal Pradesh Vs. A Parent of a Student of Medical College, Simla and Others [(1985) 3 SCC 169] and Asif Hameed and Others Vs. State of Jammu and Kashmir and Others [1989 Supp (2) SCC 364]). In Guruvayoor Devaswom Managing Committee and Another Vs. C.K. Rajan and Others [(2003) 7 SCC 546] this Court held: "50... (x) The Court would ordinarily not step out of the known areas of judicial review. The High Courts although may pass an order for doing com....
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.... searching for some "public law" element to the decision as a justification for applying public law doctrines to the case before them. Support for this approach is found in the judgments of the Court of Appeal in Brown, Kelly and Emmett, and also, implicitly, in the recent cases on review of procurement; and it is a pity that the Court of Appeal did not take the opportunity presented recently in Jones Vs. Swansea City Council to endorse such an approach, since this clearly commended itself to the Court." The said Article is although thought provoking, we are bound by the decisions of this Court and a distinction between a public law element and private law element although may be thin, has to be kept in view and taken into consideration while entertaining a writ application. In Mukul Dalal and Others Vs. Union of India and Others [(1988) 3 SCC 144], this Court held that office of the Public Prosecutor is a public one and nobody should be appointed as a special public prosecutor at the instance of a complainant stating: "10... To leave the private complainant to pay to the Special Public Prosecutor would indeed not be appropriate. We would make it clear that we do not support th....
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....e District Judge regarding the choice of Government Pleaders. When there were several thousand cases in the Patna courts and hundreds of cases before a plurality of tribunals, it was but right that government did not sacrifice the speedy conduct of cases by not appointing a number of pleaders on its behalf, for the sake of the lucrative practice of a single Government Pleader. It is inconceivable how he would have discharged his duties to the court and to his client if this crowd of land acquisition cases were posted in several courts more or less at the same time. Adjournment to suit advocates' convenience becomes a bane when it is used only for augmentation of counsel's income, resisting democratisation and distributive justice within the profession. These principles make poor appeal to those who count, which is a pity." This Court lamented: "17. We dismiss the special leave petition but with a sad tag, which is the message of this martyrdom. Professions shall not be concealed conspiracies with 'effete, aristocratic, protective coloration', which at the same time enables one to make a considerable sum of money without sullying his hands with a "job" or "trade....
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....l rights and economic justice . . . . They have fought innovations even in their own profession . . . . Lawyers as a profession have resisted both social change and economic reform. (President Carter, May, 1978) We may well be on our way to a society overrun by hordes of lawyers, hungry as locusts, and brigades of justices in numbers, never before contemplated. (U.S. Chief Justice Burger) 19. Law Reform includes Lawyer Reform, an issue which the petitioner has unwittingly laid bare. After all, as Prof. Connel states : Criticism of relatively conservative institutions in times of social questioning is hardly a new phenomenon. (Australian Law Journal, Vol. 51, p.351)" In State of U.P. vs. Ramesh Chandra Sharma and Others (1995) 6 SCC 527], Verma, CJ speaking for the Bench opined : "In view of the clear provision in clause (3) of para 7.06 that the "appointment of any legal practitioner as a District Government Counsel is only professional engagement", it is difficult to appreciate the submission for which sustenance is sought from the provisions contained in the same manual. The appointment being for a fixed term and requiring express renewal in the manner provided in th....
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....igh standard of legal ethics and dignity of profession and further they are not supposed to solicit work or seek mandamus from courts in matters of professional engagements. Despite the same to a limited extent in some cases the orders of non-renewal of the term of the District Government Counsel were interfered with on the ground that the District Magistrate had not performed his duty as enjoined by law. In relation to appointment of the standing counsels for the High Court, this Court, however, in State of U.P. and Others etc. vs. U.P. State Law Officers Association and Others etc. [(1994) 2 SCC 204] while distinguishing Shrilekha Vidyarthi (supra), observed that legal profession is essentially a service oriented profession. Noticing the changing scenario as also growth of litigation, this Court emphasized the obligation on the part of the Government or the public body to engage the most competent lawyer for conducting their affairs stating that relationship between the lawyer and his client is one of the trust and confidence. The client engages a lawyer for personal reasons and would be at liberty to leave him also for the same reasons. It was observed : "18.The mode of appo....
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....cused guilty of commission of crime does not go unpunished. Maintenance of law and order in the society and, thus, to some extent maintenance of rule of law which is the basic fibre for upholding the rule of democracy lies in their hands. The Government counsel, thus, must have character, competence, sufficient experience as also standing at the Bar. The need for employing meritorious and competent persons to keep the standard of the high offices cannot be minimized. The holders of the post have a public duty to perform. Public element is, thus, involved therein. In the matter of engagement of a District Government Counsel, however, a concept of public office does not come into play. However, it is true that in the matter of Counsel, the choice is that of the Government and none can claim a right to be appointed. That must necessarily be so because it is a position of great trust and confidence. The provision of Article 14, however, will be attracted to a limited extent as the functionaries named in the Code of Criminal Procedure are public functionaries. They also have a public duty to perform. If the State fails to discharge its public duty or act in defiance, deviation and depa....
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.... also. 16. Before such recommendations are made the District and Sessions Judge and his colleagues, appear to have called for applications for making the things more transparent. It is true the post of the Public Prosecutor occupies a high position in the scheme of criminal justice delivery system. His honesty, impartiality, firmness and other qualities will have to be taken into consideration." Referring to the judgment of this Court in Harpal Singh Chauhan (supra), the High Court held that filing of such applications on the part of the advocate would not attract the vice of Rule 36 as the advocates would not file any application on their own. PROVISO TO PARA 7.03(3): We may also notice that according to Mr. Ranjit Kumar, learned senior counsel, the proviso appended to clause (3) of Para 7.03 is being misused. The proviso evidently was inserted with a noble purpose. Such a provision was evidently made having regard to the fact that an advocate having a deep sense of self- respect may not file any application for his appointment as a District Government Counsel despite calling for applications by the District Magistrate in this behalf. The District Magistrate in a given situa....