TaxTMI 
TaxTMI 
2015 (11) TMI 1795
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....raj Kumar Srivastava, Pawan Kumar Shukla, Pankaj Kumar Singh, Ashutosh Dubey, Mahindra Dubey, Vinod Kumar Tewari, Imtiaz Ahmed, Naghma Imtiaz, Amra Moosavi, Advs. for Equity Lex Associates, Shakil Ahmed Syed, Daanish Ahmed Syed, Uzmi Jameel Hussain, Mohd. Parvez Dabas, Milan Laskar, Anoop Kumar Shrivastava, Bhanu Pratap Singh, Varun Singh and Vipin Kr. Saxena, Advs. JUDGMENT Vikramajit Sen, J. 1. Leave granted. 2. Applications for correcting the cause title and all the applications for impleadment as party Respondent are allowed. 3. In these Appeals, we are concerned with the renewal as also the appointment of District Government Counsel (Civil and Criminal) in the Subordinate Courts across the State of Uttar Pradesh. The State as the Appellant, has assailed the final judgment and order dated 5.11.2014 in Writ Petition being Misc. Bench No. 9127 of 2012 passed by a Division Bench of the High Court of Judicature at Allahabad, Lucknow Bench. The High Court in this impugned Order has quashed the Orders of the State Government terminating the appointment of District Government Counsel and has further directed the State Government to reconsider their renewal. Indubitably, the appoi....
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....gments, the State Government filed Special Leave Petitions No. 4042-4043 of 2012 titled State of U.P. and Ors. v. Sadhna Sharma, during the pendency of which there was a change in the State Government. Immediately thereupon, a prayer was made before this Court for withdrawal of the Special Leave Petitions on the predication that the newly elected State Government had accepted the assailed judgments of the High Court of Allahabad and accordingly intended to implement it in its entirety. In the course of disposing of these SLPs this Court pointedly and poignantly observed that the constitutional validity of Section 24 Code of Criminal Procedure had not been challenged. This Court noted the unanimity in the opinion that the assailed judgments of the High Court would be implemented. Nevertheless, three "clarifications" were recorded. Firstly, that the appointments made in consultation with the High Court and/or the District and Sessions Judge of the concerned district would not be disturbed. Secondly - "Against the existing vacancies the cases of all the Appellants herein, who are in service or are out of service as well as any of the Petitioners before the High Courts, whose services ....
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....ion to the District Judges and District Magistrates to ensure that no person having criminal antecedents should be permitted to work as District Government Counsel. 8. The Learned Senior Counsel for Appellant/State, Mr. Kapil Sibal, submits that the impugned order of the High Court of Allahabad seeks to perpetuate an illegality. He relies heavily on the decision of a Three Judge Bench of this Court, namely, State of U.P. v. Johri Mal (2004) 4 SCC 714, to submit that an appointment to the post of a District Counsel is a professional appointment; no status of a public nature is conferred on the incumbent; as also that the LR Manual itself contains merely Executive instructions which do not contain the concomitants of Article 166(3); and therefore the LR Manual is not law Under Article 13 of the Constitution of India; and that in Johri Mal this Court has expressed reservations against Kumari Shrilekha Vidyarthi v. State of UP (1991) 1 SCC 212. Mr. Sibal has also differentiated the facts before us from those in Kumari Shrilekha Vidyarthi, where all government counsel were terminated en masse by a government order. On the question of maintainability of a writ of Mandamus issued against....
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....liance upon Dr. A.R. Sircar v. State of UP (1993) Supp 2 SCC 734 to substantiate this submission. Secondly, on the application of the doctrine of 'comity of instrumentalities', Mr. Lekhi learned Senior Counsel argues that the Executive cannot be permitted to overreach or nullify judicial pronouncements. Thirdly, that there is an element of continuity in these appointments as emphasised in Kumari Shrilekha Vidyarthi. Mr. Manoj Goel learned Counsel for some of the other Respondents further submits that on a proper perusal of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani (1989) 2 SCC 691 and the Constitutional Bench in Zee Telefilms Ltd. v. Union of India (2005) 4 SCC 649, it is manifest that a mandamus cannot be denied on the ground that the duty to be enforced is not imposed by a statute and, in fact, may even be passed in order to enforce a contract. He has emphasised that a Mandamus is the appropriate remedy in light of Kumari Shrilekha Vidyarthi because a public element is involved in the appointment of DGCs and ADGCs which itself is ample reason to attract Article 14 and judicial review under the Constitution of India....
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....a larger Bench. 11. If binding precedents even of co-ordinate strength are not followed, the roots of continuity and certainty of law which should be nurtured, strengthened perpetuated and proliferated will instead be deracinated. Although spoken in a totally different context, we are reminded of the opening stanza of the poem 'The Second Coming' authored by William Butler Yeats. The lines obviously do not advert to the principle of precedent but they are apposite in bringing out the wisdom of this ancient and venerable principle. Turning and turning in the widening gyre The falcon cannot hear the falconer; Things fall apart; the centre cannot hold; Mere anarchy is loosed upon the world. 12. In the context of interminably citing all decisions delivered by this Court, the Constitutional Bench in Union of India v. Raghubir Singh (1989) 2 SCC 754 has made the following enunciation of law: 25. It is not necessary to refer to all the cases on the point. The broad guidelines are easily deducible from what has gone before. The possibility of further defining these guiding principles can be envisaged with further juridical experience, and when common jurisprudential val....
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....inion in Sher Singh, the question of the effect of delay on the execution of a death sentence was referred to a Division Bench of five Judges, and in Triveniben v. State of Gujarat, the Constitution Bench overruled T.V. Vatheeswaran. 27. What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case raising the same point subsequently before a Division Bench of a smaller number of Judges? There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a superior Court, the ideal condition would be that the entire Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be....
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....in Motilal Padampat Sugar Mills v. State of U.P. on the point whether the doctrine of promissory estoppel could be defeated by invoking the defence of executive necessity, and holding that to do so was wholly unacceptable reference was made to the well accepted and desirable practice of the later Bench referring the case to a larger Bench when the learned Judges found that the situation called for such reference. 28. We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. We would, however, like to think that for the purpose of imparting certainty and endowing due authority decisions of this Court in the future should be rendered by Division Benches of at least three-Judges unless, for compelling reasons, that is not conveniently possible. 13. In a more recent decision of this Court, a Bench of 5 Judges in Chandra Prakash v. State of UP (2002) 4 SCC 234 reaffirmed the principle enunciated above in Raghubir Singh's case, and....
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....inciple of stare decisis etc. These rules and principles are based on public policy and if these are not followed by courts then there will be chaos in the administration of justice, which we see in plenty in this case. 14. Sitting in a Division Bench of two, we at present can do no better than apply the rules of precedent as have been left for us to follow. The law pertaining to the appointment of Additional District Government Counsel, Assistant District Government Counsel, Panel lawyers and Sub District Government Counsel was directly in issue before the Three-Judge Bench in State of U.P. v. Johri Mal (2004) 4 SCC 714 where the law has been comprehensively clarified. No purpose is served by discussing Kumari Shrilekha Vidyarthi or any judgments rendered thereafter. 15. In Johri Mal, this Court perused the LR Manual as also the Code of Criminal Procedure and reiterated that the District Counsel stood professionally engaged; that the State Government was free to determine the course of action after being satisfied of their performance, and that the Courts must be circumspect in the exercise of judicial review on matters which fell within the discretion of the State Government, i....
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....ow the public authorities sufficient elbow space/play in the joints for a proper exercise of discretion. ... 44. Only when good and competent counsel are appointed by the State, the public interest would be safeguarded. The State while appointing the Public Prosecutors must bear in mind that for the purpose of upholding the rule of law, good administration of justice is imperative which in turn would have a direct impact on sustenance of democracy. No appointment of Public Prosecutors or District Counsel should, thus, be made either for pursuing a political purpose or for giving some undue advantage to a section of the people. Retention of its counsel by the State must be weighed on the scale of public interest. The State should replace an efficient, honest and competent lawyer, inter alia, when it is in a position to appoint a more competent lawyer. In such an event, even a good performance by a lawyer may not be of much importance. ... 46. The Code of Criminal Procedure does not provide 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....
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.... Advocate. We entirely agree with this exposition of the law. We think that the correct approach is to ensure the competency of advocates being considered for appointment of Additional District Government Counsel, Assistant District Government Counsel, Panel lawyers and Sub District Government Counsel. It seems to us that it would be an incorrect approach to start this process by considering the re-appointment or renewal of existing Government Counsels since that would dilute, nay, dissolve the discretion of the Government to appoint advocates whom they find trustworthy. The High Court has followed the second approach leading to the dissatisfaction of the State Government and their resentment that their realm of discretion has been eroded for no justifiable reason. 17. The Appeals are allowed. The impugned judgment is set aside, but without imposition of costs. Fresh appointments to be made expeditiously. Abhay Manohar Sapre, J. 18. I have had the benefit of reading the scholarly judgment of my learned Brother Justice Vikramajit Sen and I am in respectful agreement with his opinion. I, however, add only few words of concurrence. 19. I entirely agree with my learned Brother that....