'Govt Duty Bound To Act Fairly In Matters Of Appointment Of Govt Law Officers': Allahabad HC Quashes Order Disengaging District Govt Counsels [Read Judgment]

Separate orders were passed in each of the seven writ petitions, unvaryingly observing that the impugned Government Orders were bad in law for "total non-application of mind".

"We have examined the records and after being satisfied that the record produced did not exhibit proper application of mind or due consideration as provided under law and there is nothing on record placed before the Court by the respondents that could demonstrate that the order was passed after taking into consideration any material on record," a division bench of Justice Bala Krishna Narayana and Justice Prakash Padia held.

In the backdrop, the Petitioners were engaged as Government Counsels (Criminal) in various District of UP. Through the impugned orders, the State Government had refused to renew their terms thus in effect, disengaging them as Govt. Counsels.

Petitioners' Arguments

The Petitioners had submitted that appointment and conditions of engagement of a counsel on the post of Additional District Government Counsel (Criminal) are governed by the provisions of Legal Remembrancer's Manual which provides that the District Officer will forward his recommendations after seeking the estimate of the quality of the counsel's work from the judicial stand point, keeping in view his public reputation in general, his character, integrity and professional conduct.

It was their case that the respective District Officers as well as the District Judges had appreciated the quality of their work, including their knowledge, professional conduct and public reputation. Nevertheless, the Government had refused to renew their term "without assigning any reasons" as to why the recommendations made by the District Judges were not accepted.

State's Arguments

Opposing the petition, the state counsel argued that District Government Counsels do not enjoy any statutory right in respect to the renewal of their tenure and rather, the State Government enjoys discretionary power in this regard.

"…renewal is not the indefeasible right of the Advocates as District Government Counsel (Criminal) and it is for the State Government to consider to appoint as District Government Counsel (Criminal) or not. Various judgements were cited in the counter affidavit," the State had argued.

Findings

Govt Order cannot be arbitrary

While the court agreed that there is no "indefeasible right" to appointment as a Government Counsel, it further remarked that they also cannot be removed "en bloc in an arbitrary manner".

"No lawyer has any vested right to be reappointed or to get his term renewed as a District Government Counsel/Additional District Government Counsel as a matter of right even though his integrity and work may be reported to be good," it remarked.

The bench then added,

"In the manner of appointment of Government Law Officers/Counsel/Pleader it is the duty of the Government to act in a fair, reasonable, objective and in a non discriminative manner," in light of the Supreme Court ruling in Kumari Shrilekha Vidyarthi v. State of UP & Ors., AIR 1991 SC 537.

The court also held that that the government does not have an "absolute right" to terminate the appointment at any time without specifying any reason and the same will be violative of Articles 14 and 16 of the Constitution.

Opinion of District Judge prevails

The court observed that the "right of consideration for renewal" for the specified period is a legitimate right vested in an applicant and he can be deprived of such right and be declined renewal where his work is unsatisfactory and is so reported by the specified authorities.

However, in the present case, the bench noted that the Petitioners had been endorsed by the District Judges. In this light the bench also resorted to the Supreme Court ruling in Virendra Pal Singh Rana v. State of UP & Ors., 2003 (52) ALR 302, whereby it was observed that competent lawyers of integrity and sound knowledge of law "ought to be appointed" as District Government Counsel after consulting the District Judge whose opinion would "prevail" over that of the District Magistrate.

Non-speaking Order

Lastly, the court held the impugned Government Orders to be bad in law for "not assigning any reasons" in their passing.

"The order impugned does not assign any reason for refusing to renew the term of the petitioner. The State Government cannot act in an unfair and unreasonable manner. Even in the matters of contractual appointment the provisions of the LR Manual should have been followed," the bench remarked.

Pertinently, before finally disposing of the matter, the bench called for the records of the Petitioners' case and found that the Government did not give "proper consideration" to the Petitioners' file before refusing to grant renewal of their term.

"It is further clear from perusal of the records that the State Government had taken en-block decision that the renewal in the case of such Government Counsel whose terms have come to an end will not be granted," it remarked.

Hence, the impugned orders were disposed of with a direction to consider the matter afresh.

"This order would not amount to reengagement of the petitioner or his continuance. The matter shall be decided afresh keeping in view the observations made hereinabove as well as the provisions of Legal Remembrancer's Manual within a period of four months," the bench clarified.

Case Details:

Case Title: Shyam Narayan Yadav v. State of UP & Anr. (and similar other petitions)

Case No.: WRIT C No. 62727/2017

Quorum: Justice Bala Krishna Narayana and Justice Prakash Padia

Appearance: Advocates Nand Kishore Singh, Kunal Shah and Rahul Agarwal (for Petitioner); Additional Advocate General Neeraj Tripathi assisted by Additional Chief Standing Counsel Shashank Shekhar Singh (for State)

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