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SHAILENDRA KUMAR OJHA & ORS. versus STATE OF U.P. & ORS.

High Court of Judicature at Allahabad

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Shailendra Kumar Ojha & Ors. v. State of U.P. & Ors. - WRIT - A No. 48691 of 2003 [2003] RD-AH 447 (14 November 2003)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

COURT NO.34

"RESERVED"

Civil Misc. Writ Petition No. 48691 of 2003

Shailendra Kumar Ojha & Ors ......... Petitioners

Versus

State of U.P. & Ors. ......... Respondents

Hon. Dr. B.S. Chauhan, J.

Hon. R.C. Pandey, J.

(By. Hon. Dr. B.S. Chauhan, J.)

This writ petition has been filed for quashing the impugned advertisement dated 22nd October, 2003 (Annex. 2) and the preceding Government Order dated 27th September, 2003 (Annex.3), providing for appointment of D.G.C. (Criminal) and Additional Government Advocate in District Ballia.

Facts and circumstances giving rise to this case are that petitioners no. 1 to 4 were appointed as Assistant District Government Counsel (Criminal), vide order dated 27th July, 1992 and petitioner no.5 as Additional Government Advocate vide order dated 3rd August, 1992 in District Ballia (Annex. 4 and 5), for a period of one year, i.e. upto 31st July, 1993. Their appointment had been renewed from time to time. Last renewal was made on 30th October, 2000 for a period of three years, i.e. upto 29th October, 2003 by the State Government. Instead of renewing the cases of the petitioners, an advertisement dated 22nd October, 2003 (Annex. 2) has been issued in pursuance of the Government Order dated 27th September, 2003 (Annex.3) inviting applications for the said post under para 7.03 of the U.P. Legal Remembrancer Manual (hereinafter called the ''L.R. Manual'. This petition has been filed for quashing the same contending that the petitioners have a right of being considered for renewal under the provisions of the said L.R. Manual.

Shri Yogesh Agarwal, learned counsel for the petitioners has submitted that once the petitioners had been appointed under the provisions of the L.R. Manual and Section 24 of the Code of Criminal Procedure, the question of non-consideration  of their cases for renewal amounts to violation of the statutory provisions and, therefore, the said advertisement and the Government Order are liable to be quashed.

On the contrary, learned Standing Counsel has submitted that the petitioners had been appointed in 1992 and continued for more than a decade. In the meanwhile, many lawyers had fulfilled the eligibility and they are also entitled to be considered for the said post. Therefore, the petitioners cannot claim that vacancies cannot be filled up by considering the cases as fresh and restricting the vacancies to be fill up by renewal, would amount to violation of Articles 14 and 16 of the Constitution of India qua those Advocates who have attained eligibility after appointments of the petitioners. More so, renewal is also a mode of appointment and if petitioners are interested to continue on the post, they can apply afresh but they cannot claim relief sought in the petition and, therefore, the petition is liable to be dismissed.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.

The learned Standing Counsel did not ask for time to file counter affidavit, rather suggested that as the issue involved herein is a pure question of law, i.e. entitlement of the petitioners for renewal of their term, the matter be heard finally. We accepted the suggestion made by learned Standing Counsel.

The relevant provisions for our consideration are Section 24 of the Code of Criminal Procedure and  paras 7.03, 7.06 and 7.08 of the U.P. Legal Manual. Section 24 of the Cr.P.C. reads as under:-

"24. Public Prosecutors.- (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.

......... .......... ..............

(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion, fit to be appointed as Public Prosecutors 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)................."

Paragraphs 7.03, 7.06 and other paragraphs of the L.R. Manual provides for eligibility and mode of appointment of the Government Advocate. A Member having 5 years expedience as a practicing lawyer may apply giving the particulars, such as age, length of practice at the Bar, proficiency in Hindi and income-tax paid by him on professional income during last 3 years and the application shall be considered by the District Collector in consultation with the District Judge of the concerned district. The District Judge shall make recommendation/opinion about his suitability, merit, character, professional conduct and integrity. He shall also make an assessment of the proficiency of the candidate in civil, criminal and revenue law. Once appointment is made, it would be merely a professional engagement and once a person so appointed can continue upto age of 60 years if his term is renewed from time to time. Even beyond 60 years of age, his tenure can be renewed considering his physical as well as proficiency in the profession etc.

Paragraph 7.08 of the L.R. Manual deals with renewal of the term, which reads as under:-

"7.08. Renewal of term (1) At least three months before the expiry of the term of a district Government Counsel, the District Officer shall after consulting the District Judge and considering his past record of work, conduct and age, report to the Legal Remembrancer, together with the statement of work done by him in Form No.9 whether in his opinion the term of appointment of such counsel should be renewed or not. A copy of the opinion of the District Judge should also be sent along with the recommendations of the District Officer.

(2) Where recommendation for the extension of the term of a District Government Counsel is made for a specified period only, the reasons therefore shall also be stated by the District Officer.

(3) While forwarding hi recommendation for renewal of the term of a District Government Counsel -

(i) the District Judge shall give an estimate of the quality of the Counsel's work from the Judicial stand point, keeping in view the different aspects of a lawyer's capacity as it is manifested before him in conducting State cases, and specially his professional conduct;

(ii) the District officer shall give his report about the suitability of the District Government Counsel from the administrative point of view, his public reputation in general, his character, integrity and professional conduct.

(4)  If the Government agrees with the recommendations of the District Officer for the renewal of the term 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.

NOTE - The renewal beyond 60 years of age shall depend upon continuous good work, sound integrity and physical fitness of the Counsel."

The  appointment of Public Prosecutors  is contemplated  under  the provisions of Section  24 Cr.P.C.   and  the Rules contained in the  Manual. The Rules   in  the  Manual   may  not  be  having  statutory  force but so far they are in consonance with the  provisions of Section 24 Cr.P.C.,  there can be no difficulty in their observance or asking for strict  adherence  to  the same.   The  Public  Prosecutor  may not be holding a civil post  under the State in strict-legal sense but as the public element is involved therein, it is not permissible for the authorities  to  deviate  from  provisions providing for their appointment or removal.

In Mukul Dalal Vs.  Union of India & ors.,(1988) 3  SCC  144,  the Apex  Court  observed  as under:-

"The office of the Public Prosecutor is a public  one......   The primacy given  to the Public Prosecutor under the scheme of the Code has a special purpose....."

When  advocates  are   appointed  to  the office of  Public Prosecutor, "they have  certain professional   and  official    obligations   and privileges."  (Vide K.C.Sud Vs.  S.G.   Gudimani, (1981) 2  Cr.L.J.1779).   It has also  invariably been held  that  a Government Advocate  holds  an  office of profit.  (Vide Mahadeo Vs.  Shantibhai,  (1969) 2  SCR  422;  Madhukar G.E.  Pankakar  Vs. Jaswant Chobbildas  Rajani  & ors., AIR  1976  SC 2283;  and   Kanta  Kathuria   Vs.   Manak  Chand Surana, AIR 1970 SC 694).

In  Rabindra Kumar Nayak Vs.   Collector, Mayurbhanj,  Orissa, (1999) 1 JT 591, the Hon'ble Apex Court  held  that  where the  permanency  is attached  to  the office and not to the term  for which an  Advocate holds it, the person may  come and go in  succession  but so long he  holds  the office, he   is  disqualified  to   contest   the election.  In Mundrika Prasad Sinha Vs.  State of  Bihar, AIR  1979 SC 1871, the Court approved  the observation  made  by  the Madras High  Court  in Ramachandran  Vs.   Alagiriswami, AIR  1961  Mad. 450, wherein it has been observed as under:-

"The   duties    of   a    Government Pleader...are   duties   of    a   public  nature.....Besides, even if his only duty  is   the  conduct  of   cases  in   which Government  have been impleaded, still as explained  more  than   once  before  the public  are  interested in the manner  in which he discharges his duties.....having regard  to  the   various  functions  and duties  to be performed by him in the due exercise  of  that office, most of  which are  of  an independent  and  responsible character,  the office must be held to be a public office within the scope of a quo warranto proceeding."

In  Mundrika  Prasad Sinha  (supra),  the Apex Court held as under:-

"We do recognize its importance in  our era  of infiltration of politicking  even  in forbidden areas.  A Government Pleader is  more than an advocate for a  litigant  He  holds  a public office....   we  must enter  a caveat that Government under our Constitution  should  not play  with  law offices on political or other impertinent considerations  as  it   may  affect  the legality  of  the action and subvert  the rule of law itself."(Emphasis added).

Similarly,  in Hitendra Vishnu Thakur Vs.  State of  Maharastra,  AIR  1994   SC  2623,  the  Hon'ble Supreme  Court  observed that  a  "Public Prosecutor  is an important officer of the  State Government  and  is appointed by the State  under the Code of Criminal Procedure.  He is not a part  of the investigating    agency.    He    is    an independent statutory authority."

After  considering a catena of decisions, a Division Bench of Allahabad High Court in Vijay Shanker Mishra  Vs.  State of U.P.  & ors.,  1999 Cr.L.J.   521, held that duties and functions  of the Public  Prosecutor are statutory.  Even if he does not  hold  a civil post under the State,  he  holds a public  office of trust under the  State. It is an  office of responsibility as he has been enclothed   with  the  power   to  withdraw   the prosecution  of  a case on the directions of  the State Government.

Therefore,  in  view of the above, it  is crystal clear  that engagement of an advocate  as public prosecutor  is  not merely a  professional engagement.   Even  if he does not hold  a  civil post under    the   State,    he   carries    the responsibility  and  privilege  of  the public office of  great  public importance and plays  an important  role in the administration of criminal justice.  Neither his appointment nor removal can be made at the sweet will of the Government rather the same are guided by public interest, which has always been a paramount  consideration in public administration.

In  Harpal  Singh  Chauhan  &  ors.   Vs.  State of  Uttar  Pradesh, AIR 1993 SC  2436,  the Apex Court  considered  the provisions  of  Uttar Pradesh Law  Manual and provisions of Section  24 Cr.P.C.  and held that any appointment, which has been made  without  following  the  procedure  of preparation  of panel by the District  Magistrate with consultation  of the Sessions Judge,  cannot be enforced  being  de hors the rules.  The  Court also considered  the provisions of the U.P. Law Manual providing  for renewal and  re-appointment and held that it cannot be claimed as a matter of right and  it  will depend upon the  performance.

The Court observed as under:-

"The framers of the Code were conscious on the  fact that Public Prosecutors and  the Additional  Public  Prosecutors   have  an important  role,  while   prosecuting   on behalf  of the State, accused persons, who are  alleged to have committed one or  the other offences. Because of that, provisions  have been made for  their selection  in  the  Code.  It is  for  the Sessions  Judge  to assess the  merit  and professional   conduct  of   the   persons recommended  for such appointment and  the District Magistrate to express his opinion on   the   suitability   of   persons   so  recommended, from the administrative point of  view......  Sub-section (5) of Section 24  provides  that  no   person  shall  be appointed....  'unless his name appears in the  panel of names of persons prepared by the  District Magistrate under Sub-section (4).'  The  aforesaid Section requires  an effective  and  real consultation  between the   Sessions  Judge   and  the  District  Magistrate about the merit and suitability  of  the persons to be appointed as  Public Prosecutor....    That  is   why  that  it requires a panel of names of persons to be prepared  by the District Magistrate  with the  consultation  of the Sessions  Judge. The  same  is the position so far  as  the Manual  is  concerned...    The   District Judge,  who is also the Sessions Judge, is to give his estimate of the quality of the work   of   counsel   from  the   judicial stand-point  and the District Officer i.e. the District Magistrate is to report about  the   suitability  of   such  person  from administrative point of view."

Thus, it is abundant   clear   that appointment  is to be made in consonance with  the  provisions of Section 24 Cr.P.C.  and the relevant rules of  the  Manual.  The expression  'panel  of names of  persons'  does  not mean  suggestion  of names by  the Sessions Judge and some comments  in  respect of  those names by the District Magistrate  without proper  consultation  and discussion  over such names.   The statutory mandate is required to be complied  with  by the District Magistrate  and the Sessions Judge in its true spirit.  In absence of any provision  in  the  Code or the  Rules  for extension or renewal, the same cannot be termed as having any legal sanctity.

In  Kumari Shrilekha Vidyarthi Vs.   State of U.P.,  AIR  1991  SC 536, the  Apex  Court  had struck down  the  order of removal of  the  Public Prosecutors  by the State Government and held that removal of  all Public Prosecutors in the State by one stroke  of pen was without application of mind and thus arbitrary and held that such an action of the State   was  totally   unreasonable  and   the  unfettered discretion is inappropriate to a public authority  and, thus,  the Hon'ble Apex Court  held that in such  a  case it was permissible  for  the Court to  have a judicial review of the orders  of removal passed  arbitrarily as judicial review  is permissible  to the limited grounds of illegality, irrationality    and     procedural   impropriety. Otherwise  the  ratio  of  the  judgment  is  that appointment  of  Public Prosecutors etc.   in  the District  Courts are made through open competition and the sole criteria for selection is merit of an advocate  if  he  otherwise   fulfils  all   other eligibility  criteria.   Opinion of  the  District Magistrate  has  to  be  based on  merit  and  his consultation  with the Sessions Judge has to be an  effective one.  Conduct and character of advocates are also  of  paramount   consideration.   More so, their performance has to be satisfactory. In  Vijay  Shanker Mishra (supra), it  was observed as under:-

"Law  Officers are one of the main  wheel of  the  chariot driven by the judges  to attain  the cherished goal of human-being to    secure    justice    against    the wrong-doers.   The object of the State is to   curb  the   crime,  investigate  and prosecute  the offenders and punish them, with  a  view to maintain law and  order, amenity  and  harmony,  tranquility  and peace....   the object of the Code is  to appoint  the best amongst the lawyers  as Public  Prosecutors to provide assistance to  the Court.  The people have the vital interest in the matter."

In State of U.P.   &  ors. Vs.  U.P.   State Law Officers Association & ors., AIR 1994   SC   1654,  the Apex  Court  distinguished  the  judgment in  Kumari  Shrilekha Vidyarthi  (supra) as the same was confined to the appointment  of Public Prosecutors in the District Courts and held that the appointment of a legal  practitioner  is  only  a  professional  engagement  terminable at will of either side  and is not an  appointment  to  the   post  under  the Government.   Accordingly, the Government reserves the power  to  terminate  the appointment  of  any Government  Counsel.   The Court further  observed that the  Government and the Public Bodies engage the services  of the Lawyer purely on  contractual basis either  for  a  specified   case  or  for  a specified  or unspecified period.  The  Government  Lawyers cannot  be  treated as employees but  were professional   practitioner  engaged  to  do   the specified  work.  Treating them as employee of the Government  is also not permissible under rule  49 of the Bar Council of India Rules as it waives the  prohibition  imposed by the said Rules against the acceptance  by a lawyer of a full time  employment.

The Court further observed as under:-

"The  relationship between Lawyer and his client   is   one  of   the   trust   and  confidence.   The client engages a lawyer  for personal reasons and is at liberty to leave  him also for the same reasons.  He is  under  no obligation to give  reasons for   withdrawing  his   brief  from  his lawyer.   The lawyer, in turn, is not  an agent  of his client but he is  dignified responsible     spokesman.....   The Government  or the Public Body represents public interests and whoever is in charge of  running their affairs is no more than a  trustee  or a custodian of the  public interests  ....  This obligation  imposes on  them  the  duty to  engage  the  most  competent  servants,   agents,  advisors,  spokesmen   and     representatives   for conducting  their affairs.  Hence, in the selection of their lawyers, they are duty  bound to make earnest efforts to find the best  from amongst those available at the particular time.  This is more so because the  claims  of  and against  the  public  bodies    are     generally    monetarily substantial and socially crucial with far reaching   consequences....    the  State Government  is  under  no  obligation  to consult  even  its Advocate General  much less  the Chief Justice or any Judges  of the   High   Court  or   to   take   into consideration  the view of any  Committee that  may be constituted for the purpose. The  State  Government has a  discretion.  It  may or may not ascertain the views of any  of  them  while   making  the   said appointments.   Even where it chooses  to consult them, their views are not binding on  it.  The appointments may, therefore, be  made  on  considerations  other  than merit  and  there exists no provision  to prevent such appointments.  The method of appointment  is indeed not calculated  to ensure  that  the meritorious alone  will always   be   appointed   or   that   the appointments   made   will   not  be   on considerations  other than merit.  In the absence  of guidelines, the  appointments may  be  made  purely   on  personal   or political    considerations,     and   be arbitrary.   This being so those who come to   be  appointed  by   such   arbitrary procedure  can  hardly  complain  if  the termination  of  their   appointments  is equally arbitrary.  Those who come by the backdoor  have  to go by the  same  door. This  is  more  so   when  the  order  of appointment  itself  stipulates that  the appointment  is  terminable at  any  time  without  assigning  any   reason.    Such  appointments  are  made,   accepted   and understood  by  both sides to  be  purely  professional  engagements till they last. The  fact  that they are made  by  public  bodies  cannot vest them with  additional sanctity.   Every  appointment made to  a  public  office,  howsoever, made, is  not necessarily  vested with public sanctity.  There  is, therefore, no public  interest involved  in  saving   all   appointments irrespective  of  their mode.   From  the inception  some engagements and contracts may  be  the product of the operation  of  the  spoils  system.   There need  be  no  legal  anxiety  to save them."  (Emphasis added).

The  observations  made in the  aforesaid judgment  that  State must make an  endeavour  to appoint the  best available Lawyers as Government Advocates  and  whatever the method  adopted,  it must be shown that the search for meritorious was undertaken and the appointments were made only on the basis  of  the  merit and not for  any  other consideration,  is merely an advisory as the same is not in  consonance with the latter part of the judgment.   More so, the  aforesaid   judgment  was approved  and  followed in State  of  U.P. Vs. U.P. Government  Counsel  (Crl.) Welfare  Association,  AIR 1995   SC  575,  wherein   the   Apex   Court  reiterated  that the " Law Officers appointed  by the Government  to  look-after  the work  of  the Government was only professional service as legal assistants  and  the  service   rendered  by  the  counsel is  only a service oriented  professional  services.   Therefore, they were not employees of the Government."  Being  the office of trust  and  confidence,  "the  Government has the liberty  to  relieve a counsel for the reason that they do not have confidence in (him).

In  State  of U.P.  Vs.   Ramesh  Chandra Sharma, AIR 1996 SC 864, the  Hon'ble  Supreme Court considered  the case of District Government Advocates  and after considering the judgments in Shrilekha  Vidyarthi  and  Harpal  Singh  Chauhan(supra) held  that it was "merely a  professional  engagement"  and the Lawyer, holding such a post, cannot claim to hold a civil post under the State or claim  renewal  of  his term as  a  matter  of right.

Thus, from the aforesaid, it becomes crystal clear that engagement of a Government Advocate is purely professional engagement and he does not hold any civil post under the State. Appointment to the post has to be made on the recommendation of the District Collector with due consultation of the District Judge. The consultation with the District Judge is effective one and not an empty formality. His opinion is to prevail even on the opinion of the District Collector, though no person has a right to claim appointment or renewal but in view of the provisions of L.R. Manual, the application for renewal is to be considered and in case the renewal is rejected, only then the vacant post can be filled up by a fresh appointment otherwise the provisions of para 7.08 of the L.R. Manual would be rendered nugatory. The schedule providing for three months for initiating the process of renewal of the term is directory and not mandatory being purely procedural in nature. (Vide P.N. Sethi Vs. State of U.P. & Ors., 1992 ACJ 306 (DB); Ram Nihore Singh Vs. State of U.P. & Ors., (2001) 2 ESC (Alld) 88 (DB); Brijesh Kumar Singh Vs. State of U.P. & Ors., 2001 ACJ 101; and V.P. Rana Vs. State of U.P. & Ors., (2003) 3 ESC (Alld) 1687 (DB).

In Ramesh Chandra Sharma (supra), the Hon'ble Supreme Court considered the case of renewal of term and held that the application for renewal is required to be considered in strict adherence of the provisions contained in para 7.08 of the C.R. Manual and application is to be considered on relevant considerations. It cannot be rejected on the whims of the authority or in an arbitrary manner. If Court comes to the conclusion that application for renewal has been rejected on any existent or extraneous consideration, the order becomes liable to be quashed.

In order to examine the correctness of the order passed while deciding the application for renewal, it becomes mandatory for the authority to pass a speaking and reasoned order.

It  is  also settled proposition  of  law that even  in administrative matters, the reasons should be  recorded  as it is incumbent upon  the authorities  to  pass  a  speaking  and  reasoned order.  In  Shrilekha Vidyarthi (supra), the Apex Court has observed as under:-

"Every  such  action  may be  informed  by reason   and  if  follows   that  an   act  un-informed  by  reason is arbitrary,  the rule of law contemplates governance by law and  not by humour, whim or caprice of the  men  to  whom the governance is  entrusted for  the time being.  It is the trite  law that  "be  you ever so high, the laws  are above  you."  This is what a man in  power must remember always."

In Life Insurance Corporation of India Vs. Consumer  Education and Research Centre, (1995)  2 SCC 480, the Apex Court observed that the State or its instrumentality  must not take any  irrelevant or irrational  factor into consideration or appear  arbitrary in its decision.  "Duty to act fairly" is part of fair procedure envisaged under Articles 14 and 21.  Every activity of the public authority or those under  public  duty  must  be  received  and guided by the public interest.  Same view has been reiterated  by the Supreme Court in Mahesh Chandra Vs.  Regional Manager, U.P.  Financial Corporation and others,  AIR 1993 SC 935;  and Union of  India Versus M.L.  Capoor, AIR 1974 SC 87.

In  State of West Bengal Vs.  Atul Krishna Shaw, 1991  (Suppl.) 1 SCC 414, the Supreme  Court observed  that "giving of reasons is an  essential element of  administration of justice.  A right to  reason is, therefore,  an  indispensable   part  of sound system of judicial review."

In S.N.  Mukherji Vs.  Union of India, AIR 1990 SC 1984,  it  has been held that  the  object underlying  the  rules  of natural justice  is  to prevent mis-carriage  of  justice and secure  fair play in action.   The  expanding  horizon  of  the principles   of  natural   justice  provides   for requirement  to  record  reasons  as  it  is   now  regarded  as  one  of the  principles  of  natural justice,  and  it was held in the above case  that except in  cases  where the requirement to  record reasons is  expressly or by necessary  implication dispensed  with, the authority must record reasons for its decision.

In  Krishna Swamy Vs.  Union of India, AIR1993 SC 1407,  the  Apex Court observed  that  the rule of law  requires that any action or  decision of a statutory or public authority must be founded on the reason  stated  in the order  or  borne-out from the  record.  The Court further observed that "reasons  are the links between the material,  the foundation  for  these  erection  and  the  actual conclusions.   They  would also administer how  the mind of the  maker was activated and actuated  and there rational  nexus and syntheses with the facts considered  and  the conclusion reached.  Lest  it may not be  arbitrary, unfair and unjust,  violate Article 14  or unfair procedure offending  Article 21."

Similar view has been taken by the Supreme  Court in  Institute  of Chartered  Accountants  of India Vs.   L.K.   Ratna and others, (1986) 4  SCC 537;Board  of  Trustees of the Port of Bombay  Vs. Dilipkumar  Raghavendranath  Nadkarni  &  Ors., AIR 1983 SC 109.   Similar view has been taken by this Court in  Rameshwari  Devi  Mewara Vs.   State  of Rajasthan  and others, AIR 1999 Raj.47.  In Vasant  D.  Bhavsar  Vs.   Bar  Council of India  &  ors., (1999) 1  SCC  45,  the Apex Court  held  that  an authority  must pass a speaking and reasoned order indicating  the material on which its  conclusions are based. Similar view has been reiterated in M/s. Indian Charge Chrome Ltd. & Anr. Vs. Union of India & Ors, 2003 AIR SCW 440; Secretary, Ministry of Chemicals & Fertilizers, Government of India Vs. CIPLA Ltd. & Ors., (2003) 7 SCC 1; and Union of India & Anr. Vs. International Trading Co. & Anr., (2003) 5 SCC 437.

In  the catena of judgments of the Hon'ble Supreme Court, it has categorically been held that an appointment dehors the rules cannot be enforced and in such  a case even the principles of natural justice are  not attracted nor their continuity in  office for  long would change the legal  position.(Vide Smt.   Ravindra Sharma & ors.  Vs.  State of Punjab &  ors.,  (1995)  1 SCC 138;   Harpal  Kaur Chahal Vs.   Director,  Punjab   Industries,  1995 (Suppl.)  4 SCC 706;  State of Madhya Pradesh  Vs. Shyama Pardhi,  1996  (7)  SCC   118;   State   of Rajasthan  Vs.  Hitendra Kumar Bhatt, (1997) 6 SCC 574;  Kishori  Lal Charamkar & Anr.  Vs.  District Education Officer & Anr., (1998) 9 SCC 395;  Patna University  Vs.  Dr.  (Mrs.) Amita Tiwari, AIR 1997 SC 3456;   M.P.  Electricity Board Vs.  S.S.  Modh & Ors,. AIR  1997  SC 3464;  Dr.  Meera Massey  Vs. Dr.  S.R. Mehrotra, AIR 1998 SC 1153;  Upen Chandra Gogoi Vs.  State of Assam and others, 1998 (3) SCC 381;  and  R.K.   Trivedi  & ors.  Vs.   Union  of India & ors., ( 1998) 9 SCC 58).

Deprecating the practice of making appointment  dehors the Rules by the State or other  State instrumentalities in Dr.  Arundhati A.  Pargaonkar  Vs.   State of  Maharashtra,  AIR 1995 SC 962,  the Court rejected the claim of the petitioner  therein  for  regularization  on  the  ground of  long  continuous service observing  as under:-                    

"Nor the claim of the appellant, that she having worked as Lecturer without break for 9 years' on the date the advertisement was issued, she should be deemed to have been regularised appears to be well founded.   Eligibility and continuous working for howsoever long period should not   be permitted to over-reach the law. Requirement of rules of  selection....  cannot be  substituted by  humane considerations. Law must take its course."                                                        

The  Hon'ble  Supreme Court in  State  of U.P.  & ors. Vs. U.P. State  Law  Officers Association & ors. AIR  1994 SC 1654, observed as under:-

"This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the backdoor have to go by  the same door.  ........... The fact that they are made by public bodies cannot vest them with additional sanctity. Every appointment made to a public office, howsoever made, is not There is, therefore, no public interest involved in saving all appointments irrespective of their mode.   From the inception some engagements and contracts may be the product of the operation of the spoils system.  There need  be  no legal anxiety to save them."

Even if there are no Statutory Rules or Bye-laws of the society providing a mode for appointment, the Executive Instructions/ Policy adopted by the respondent- society must be there providing for a mode of appointment.  Even if no such Executive Instructions/ Policy/ Guidelines/Circular etc. is in existence then a fair procedure for appointment has to be adopted in consonance with the provisions of Articles 14 and16 of the Constitution.  (Vide Nagpur Improvement Trust Vs. Yadaorao Jagannath Kumbhare, (1999) 8 SCC 99).  

In Ramesh Kumar Sharma & Anr. Vs. Rajasthan Civil Services Appellate Tribunal & ors., AIR 2000 SCW 4206, the Hon'ble Supreme Court held that "expression 'Service Rules' cannot be  given  a  restrictive meaning  in  the absence of  the definition of the said term  and, therefore, it would include within its sweep, the necessary government order providing the  method recruitment."

A Constitution Bench of the Hon'ble Supreme Court, in B.R. Kapoor Vs.   State  of Tamil Nadu, (2001) 7 SCC 231, (Jayalalitha case) observed that it is the duty of the Court to examine whether the incumbent possesses qualification for appointment and the manner  in which the appointment came  to be made or  the procedure adopted was fair,  just and reasonable  and if not, appointment should be struck down.

A Constitution Bench of the Hon'ble Supreme Court, in Ajit Singh (II) Vs. State of Punjab & ors., (1999) 7 SCC 209, held  that Articles  14 and 16 (1) are basic features of the Constitution. The same view has been reiterated in Ashok Kumar Gupta Vs. State of U.P.  & ors., (1997) 5  SCC 201;  and Indra Sawhney Vs. Union of India  & ors., (2000) 1 SCC 168.  Thus, strict adherence is required thereto.

In  Kumari Shrilekha Vidyarthi (supra); and A.P.  Aggarwal  Vs.  Government (NCT) of Delhi  & ors., (2000) 1 SCC 600, the Hon'ble Supreme Court held that  every  State  action,   in  order   to survive,  must  not  be susceptible  to  vice  of arbitrariness  which  is a crux of Article 14  of the Constitution and basis of the Rule of Law.

Therefore, any appointment made by a Statutory Authority, which may be a State within the meaning of Article 12 of the Constitution, if found to have been made by a person without any competence or without following the procedure prescribed by law and in case the procedure is not prescribed and the procedure adopted by the Authority is not in consonance with Articles 14 and 16 of the Constitution, the incumbent cannot claim any benefit as in such a case the contract of service becomes enforceable  and  in-executable.

Thus, it also becomes evident that while considering the application for renewal, the authority is under a legal obligation to apply its mind that factors provided under the L.R. Manual and also to assess the initial appointment of the application has been made in accordance with law and further to pass a reasoned and speaking order so that the party concerned may know the reasons for acceptance or rejection of the application.

Instant case requires to be considered in the light of the aforesaid settled legal propositions. There is nothing on the record to show as how the petitioners had been appointed and the learned Standing Counsel insisted to decide the matter on legal issues without calling for the counter affidavit as it could have taken longer time. We dispose of this writ petition issuing the following directions:-

1.The respondents shall not consider the applications submitted in pursuance of the advertisement dated 22nd October, 2003 (Annex.2) for the time being and keep the process of appointment in abeyance so far as the petitioners are concerned.

2.Applications of the petitioners for renewal shall be considered first, as required under para 7.08 of the L.R. Manual and to be disposed of by a speaking and reasoned order.

3.While considering the applications for renewal, the findings of fact shall be recorded by the authority concerned as to whether initial appointment of the petitioners had been made in accordance with law and in case answer is negative, the applications for renewal shall be rejected forthwith.

4.In case the applications of the petitioners or any of them is rejected and renewal is not made, the said vacancies shall be filled up by the respondents in accordance with the procedure prescribed under paras 7.03 and 7.06 of the L.R. Manual.

5.The process shall be completed expeditiously, preferably within a period of 8 weeks from today.

There shall be no order as to costs.

14.11.2003

AHA/AKSI


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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