Amitava Lala, A.C.J. -- All these writ petitions have been filed by one Sri Dinesh Nath Pandey. Since the main issue involved in these petitions is in respect of renewal of the term of the petitioner on the post of Additional District Government Counsel (Criminal), the same have been heard analogously and are being decided by this common judgment and order.
In order to decide the controversy involved in these petitions, it is necessary to have a glance to the factual aspect of the matter at first.
The facts giving rise to Writ Petition No. 44238 of 2004, in brief, are that the petitioner was initially appointed on the post of Additional District Government Counsel (Criminal), hereinafter referred to as the 'A.D.G.C. (Criminal)' for 15 days in district Sant Ravidas Nagar vide order dated 18.02.1999 passed by the District Magistrate, Sant Ravidas Nagar on the recommendation of the then District Judge keeping in view the provisions contained in Paras 7 - 10 of the Legal Remembrancer's Manual (in short 'L.R. Manual'). Thereafter, the period of engagement of the petitioner on the said post was extended by the State Government for a further period of one year vide order dated 23.04.1999 passed by the Special Secretary (Law) & Additional L.R., U.P. Government, Lucknow. The term of the petitioner was further extended for a period of three years, i.e. up to 12.05.2003, vide order dated 12.05.2000. However, while extending the term of the petitioner up to 12.05.2003, by inadvertence, the designation of the petitioner was shown as Assistant District Government Counsel (Criminal), therefore, a letter was issued on 2nd June, 2000 that the designation of the petitioner shown as Assistant District Government Counsel (Counsel) in the renewal order dated 12.05.2000 be read as Additional District Government Counsel Criminal).
It appears from the record that the State Government by Government Order dated 22.12.2001 amended the provisions contained in Paras 7.08 and 7.13 of the L.R. Manual extending the term of those A.D.G.Cs. (Criminal), who were appointed for a period of three years and whose term was to expire prior to or by 21.12.2004, up to 5 years. However, by subsequent Government Order dated 11.12.2002, the Government Order dated 22.12.2001 was amended and the period of 5 years was reduced to 3 years. Thus, from the record, it is apparent that the appointment of the petitioner as A.D.G.C. (Criminal) was up to 12.05.2003. However, it appears that the District Magistrate, Sant Ravidas Nagar, considering the work, conduct and performance of the petitioner as A.D.G.C. (Criminal), requested for a report from the District Judge Bhadohi vide letter dated 22.02.2003 and the District Judge, in turn, submitted his report vide letter dated 16.04.2003. Thereafter, the District Magistrate, Sant Ravidas Nagar, Bhadohi vide letter dated 03.05.2003 recommended the name of the petitioner for renewal as A.D.G.C. (Criminal) along with other incumbents to the State Government. Since no response was received from the State Government thereon, the District Magistrate again wrote a letter on 22nd November, 2003 to the Secretary concerned recommending the name of the petitioner along with others for renewal/extension of term as A.D.G.C. (Criminal).
In paragraph 15 of the writ petition, it has been averred that in the absence of D.G.C. (Criminal) on account of leave or otherwise, the petitioner was entrusted the work of D.G.C. (Criminal) on various occasions and considering the work and conduct of the petitioner, the District Magistrate, Sant Ravidas Nagar recommended his name for being appointed as D.G.C. (Criminal) vide letters dated 12th March, 2004 and 5th May, 2004. The State Government vide letter dated 26.04.2004 sought for a revised recommendation and, in turn, the District Magistrate vide letter dated 17.06.2004 again recommended the name of the petitioner for renewal of his engagement in consultation with the District Judge and the Additional District Judge in whose court he conducted the cases on behalf of the State.
However, it appears, the petitioner was relieved from the post of A.D.G.C. (Criminal) vide order dated 16th September, 2004 of the District Magistrate, Sant Ravidas Nagar, Bhadohi in compliance of letter dated 10.09.2004 issued by the Special Secretary (Law & Justice), Government of U.P., Lucknow with effect from 16.09.2004. When the petitioner came to know about the refusal to renew his engagement as A.D.G.C. (Criminal), he filed a review application before the State Government setting fourth his explanation and correct facts, which was also rejected vide telegraphic order dated 03.10.2004. Hence, Writ Petition No. 44238 of 2004 has been filed challenging these three orders, i.e. letter/order dated 10.09.2004 passed by the Special Secretary (Law & Justice), Government of U.P, Lucknow order dated 16.09.2004 passed by the District Magistrate, Sant Ravidas Nagar, Bhadohi and the telegraphic order dated 03.10.2004 (though not communicated) passed by the Principal Secretary, Government of U.P., Secretariat, Lucknow. Prayer has also been made for issuance of a writ in the nature of mandamus commanding the respondents to ensure the renewal of the engagement of the petitioner as A.D.G.C. (Criminal), taking into consideration the various reports submitted by the authorities concerned and ignoring the adverse report given by Sri Vinod Kumar Srivastava - Additional District Judge, Court No.2.
However, a Division Bench of this Court by its order dated 02.02.2005 stayed the operation of orders dated 10.09.2004 and 16.09.2004 and on the strength of the said order, the petitioner claims to be continuously working as A.D.G.C. (Criminal) in Sant Ravidas Nagar, till filing of Writ Petition No. 66904 of 2009, as is evident from the averments made in paragraph 9 of the said petition.
A counter affidavit, duly sworn in by Shri Acharya Suresh Babu, posted as Deputy Secretary, Judicial Department, U.P. Government, Lucknow has been filed on behalf of respondents 1 to 3 wherein it has been stated that the term of the petitioner came to an end on 12.05.2003 and thereafter the reports of the District Judge and the District Magistrate were called for. It has also been averred in paragraph 3 of the counter affidavit that the District Judge himself has not recommended the name of the petitioner but he only forwarded the reports of other officials, as is apparent from Annexure - 16 to the writ petition. The State Government, taking into consideration the over all assessment, took a decision not to renew the term of the petitioner. It has also been stated that although some of the judicial officers, whose reports were forwarded by the District Judge along with letter dated 31st May 2004, had verified the good conduct of the petitioner but one of the Additional District Judges, in his report, not only gave an adverse report but also pointed out certain strictures passed by him in the judicial order. Further, it has also been stated that the petitioner wanted to secure renewal of his term by furnishing several recommendatory letters of political persons including MLAs and Ministers, which is against the provisions of L.R. Manual. In respect of the claim of the petitioner that his renewal was rejected for the reason that he got convicted a criminal who happened to be the brother of the M.L.A. of Gyanpur belonging to the ruling party in support of which he placed reliance on letter dated 4th October, 2004, it has been submitted that no such letter is available on record of the respondents and it appears that the same has been filed by the petitioner only for the purpose of making out a case. On the contrary, there are letters of the same MLA on record of the respondents recommending the renewal of the term of the petitioner. It has been denied that the decision not to renew the term of the petitioner was taken on the basis of political considerations, but such decision has been taken considering the relevant material available on record.
In paragraph 14 of the counter affidavit, it has also been stated that the renewal of the petitioner has not been denied on the request of the MLA but the same has been denied considering his overall assessment and the reports submitted by the District & Sessions Judge, the District Authority and the stricture passed by Shri Vinod Kumar Srivastava, Additional District Judge, Court No. II. It has also been stated that the petitioner exerted political pressure on the answering respondents for renewal of his term.
It has also been stated in the counter affidavit that non-renewal of the term of the petitioner was done following the due process of law and as per the provisions of L.R. Manual. The review application of the petitioner has rightly been rejected without being influenced by any political pressure. The State Government is under no obligation to renew the term of the petitioner which came to an end on 12.05.2003. The allegation of the petitioner that his application for renewal of his term has not been considered due to complaint of an MLA is false, fictitious and is based on frivolous allegations On the contrary, it has been stated that the petitioner himself has exerted heavy political pressure on the Government.
In reply, a rejoinder affidavit has been filed by the petitioner denying the allegations made in the counter affidavit. In paragraph 5, the petitioner has stated that against the order of stricture, he filed Writ Petition No. 34647 of 2001 (Dinesh Nath Pandey Vs. State of U.P. & Ors., wherein by order dated 07.11.2001, the stricture passed against the petitioner has been directed to be kept in abeyance. The said order is annexed as Annexure - 17 to the writ petition. It has also been stated in paragraph 6 that the State Government adopted a double standard policy as, on the one hand, they have challenged the judgment of acquittal passed by Sri Vinod Kumar Srivastava, A.D.J - II and the stricture passed against the petitioner and, on the other hand, the stricture has been made the basis for refusal to grant renewal of the term. Insofar as the letter 15.09.2004 of the petitioner written to the Principal Secretary (Law) for renewal of his term is concerned, it has been stated in paragraph 7 that since Sri Shambhu Singh Yadav, who happened to be the Special Secretary of the then Chief Minister, showed his helplessness regarding renewal of his term in spite of recommendations of the MLAs and Ministers of the Ruling Party, he wrote the said letter. Insofar as the letter written by the MLA concerned for renewal of his term, it has been stated that it might be the letter of the MLA concerned as the said MLA was having rivalry with another MLA of Aurai who has been convicted under Section 302 IPC as a result of prosecution conducted by the petitioner. There are certain other averments in respect of non-renewal of the term of the petitioner as A.D.G.C. (Criminal).
So far as Writ Petition No. 66904 of 2009 is concerned, it has been filed by saying that the vacancy of D.G.C. (Criminal), District Sant Ravidas Nagar was notified and the petitioner also moved an application for being engaged as D.G.C. (Criminal) along with his bio-data. The District Judge and the District Magistrate, Sant Ravidas Nagar recommended the name of the petitioner at Sl. No.1 in the panel, but ignoring the case of the petitioner, someone else whose term was to expire in the month of February, 2010 was engaged as D.G.C. (Criminal). However, vide letter dated 16.09.2008 the District Magistrate forwarded the recommendation of the District Judge dated 16.07.2008 and also recommended the name of the petitioner for appointment as A.D.G.C. (Criminal) to the State Government but since no action was taken on said recommendation, this writ petition has been filed for a writ of mandamus commanding the respondents to pass appropriate order on the recommendation of the District Magistrate and the District Judge dated 16.09.2008 and 16.07.2008 respectively mainly on the ground that under the relevant provisions of L.R. Manual, the recommendation of the District Judge and the District Collector is mandatory and the State Government is under obligation to pass appropriate order.
Here, it is to mention that an amendment application was filed on behalf of the petitioner seeking amendment in the array of respondent no.1, which was allowed vide order dated 14.12.2009, and the words 'Ministry of Law & Justice' after the word 'Secretary' in the description of respondent no.1 were added.
Likewise, Writ Petition No. 17164 of 2011 has been filed for a writ of certiorari quashing the orders dated ¾.09.2010, 10.09.2010 and 15.09.2010 (Annexures 11, 12 and 13 to this writ petition) and the orders dated 03.01.2011 and 20.01.2011 passed by the Principal Secretary (Law) & L.R., Government of Uttar Pradesh (Annexures - 19 and 19A to the writ petition). Prayer is also made for issuance of a writ in the nature of mandamus directing the District Collector, Sant Ravidas Nagar to depute the petitioner to work as A.D.G.C. (Criminal) in any other Sessions Court in the Judgeship of Sant Ravidas Nagar (Bhadohi) at Gyanpur.
The facts giving rise to this petition, i.e. Writ Petition No. 17164 of 2011 are that Sessions Trial No. 42 of 2008 (State Vs. Pramod) under Sections 498A, 306, 201 IPC and ¾ D.P. Act was decided by Shri S.C. Sharma, Additional District & Sessions Judge, Court No.1, Sant Ravidas Nagar (Bhadohi) - respondent no.6 by order dated 27.08.2010 acquitting the accused Pramod in the said case. The petitioner was prosecuting the case of the State in the capacity of A.D.G.C. (Criminal) in the Court of respondent no.6. It has been alleged by the petitioner that since the said judgment was passed on extraneous consideration, he applied for issuance of a certified copy of the judgment with a view to recommend the matter to the appropriate authority for preferring an appeal against the said judgment of acquittal. The petitioner further claims that since he did not succumb to the persuasion of respondent no.6 not to prefer the appeal against the judgment dated 27.08.2010, the respondent no. 6 became annoyed and he refused to certify the attendance of the petitioner in the Court from 1st August 2010 to 31st August, 2010 and thereafter from 01.09.2010 onwards. It has also been stated that respondent no.6 started adjourning the cases without any lawful excuse and also declined to record evidence of the prosecution witnesses in spite of their presence in the Court. Feeling embarrassed in working in the Court of Sri S.C. Sharma - respondent no.6, the petitioner moved an application to Hon'ble the Chief Justice on 03.09.2010 (Annexure - 2 to the writ petition) with a copy to the Registrar General of this Court, District Judge, Sant Ravidas Nagar (Bhadohi) and District Magistrate, Sant Ravidas Nagar with a request to review the order dated 27.08.2010 passed in S.T. No. 42 of 2008 (State Vs. Pramod) so that justice may be done.
It further appears that the petitioner filed a representation to the District Magistrate, Sant Ravidas Nagar (Bhadohi) at Gyanpur on 09.09.2010 (Annexure-3) with a request to attach him to some other Court but nothing appears to have been done. However, we find that only postal receipt has been annexed as Annexure-3 to the writ petition.
The petitioner also claims that there are Government Orders dated 31.01.2002 and 20.03.2002 providing for guidelines in respect of distribution of work amongst the APOs, POs, SPOs and D.G.C (Criminal) and A.D.G.Cs. (Criminal) which have been violated.
According to the petitioner, he has been working as A.D.G.C. (Criminal) since 18.02.1999 without any break except the break which occurred due to passing of orders 10.09.2004 and 16.09.2004, by which he was relieved from the said post with effect from 16.09.2004. However, both these orders have been stayed by order 02.02.2005 in Writ Petition No. 44238 of 2004 and in compliance of the said order, the Principal Secretary, Uttar Pradesh Government, by order dated 15.02.2005 directed the District Magistrate, Sant Ravidas Nagar (Bhadohi) to depute the petitioner as A.D.G.C. (Criminal) and in compliance of the said order, the District Magistrate, Sant Ravidas Nagar, passed order dated 16.02.2005 deputing the petitioner in the Court of Additional District & Sessions Judge, Court No.3. However, vide order dated 17.07.2009, the petitioner was deputed to work in the court of First Additional District & Sessions Judge, Sant Ravidas Nagar and one Sri Vinod Kumar Rai, against the guidelines was deputed in the Court of Additional District & Sessions Judge, Court No.2 and there was no one to conduct the cases on behalf of the State in Court No.3.
In paragraph 14 of the writ petition, it has been stated that on the complaint made by Shri S.C. Sharma, Additional District & Sessions Judge, Court No.1, Sant Ravidas Nagar (Bhadohi) - respondent no.6 on 31.08.2010, the District & Sessions Judge sent a letter dated 3/4.09.2010 to the District Magistrate to the effect that since the integrity of the petitioner had been found doubtful and that his behaviour was not befitting to his post, he recommended for removal of the petitioner from the Court of Additional District & Sessions Judge, Court Room No. 1 and for posting him to some other Court. The District Magistrate, Sant Ravidas Nagar (Bhadohi) - respondent no.5 vide order dated 10.09.2010 although restrained the petitioner from working in the Court of Additional District & Sessions Judge, Court No.1 but he did not allocate him any other Court which, according to the petitioner, tantamounts to disengagement of the petitioner as A.D.G.C. (Criminal). However, from the letter dated 3rd September, 2010 of the District Judge, we find that the District Judge has requested the District Magistrate to remove the petitioner from working in the Court of Additional District & Sessions Judge, Court No.1, Bhadohi - Gyanpur and to depute some other A.D.G.C./Prosecutor so that the Court may function property, but the District Judge has not asked the District Magistrate to depute the petitioner in some other Court, as has been averred in paragraph 14 of the writ petition.
Thereafter, the petitioner made an application dated 13.09.2010 to the District Magistrate, Sant Ravidas Nagar, Bhadohi - respondent no.5, a copy of which has been annexed as Annexure-13 to the writ petition, indicating that since the interim order dated 02.02.2005 passed in Writ Petition No. 44238 of 2004 is still in operation and in compliance of the said order, the Special Secretary (Law) also passed order dated 15.02.2005, therefore, in deference to the said order, he may be permitted to work in any Sessions Court so that his presence may be verified and he may be paid the stipend and in case he is not permitted to work, this would amount to contempt of the order dated 02.02.2004. However, the District Magistrate vide letter dated 15.09.2010 addressed to the Principal Secretary/L.R., Government of U.P., recommended for disengagement of the petitioner as A.D.G.C. (Criminal). Against the said letter/recommendation of the District Magistrate, the petitioner filed Writ Petition No. 64217 of 2010 (Dinesh Nath Pandey Vs. State of U.P. & Ors.), which was dismissed vide order dated 28.10.2010. The petitioner then filed Recall Application No. 30343 of 2010, which was disposed of vide order dated 16.11.2010 in the following terms:-
"In disposing of the application for recalling the order we mean to say that our order which has been passed on 28.10.2010 is restricted only with regard to Court No.1 arising out of the order impugned passed by the concerned District Magistrate. We have not interfered that his appointment or posing in any Court other than Court No.1.
.... "
It further appears from the record that the petitioner moved an application on 25.11.2010 before the District Magistrate, Sant Ravidas Nagar (Bhadohi) with a request to permit him to work as A.D.G.C. (Criminal) in any Court other than Court No.1, but since no order was passed on the said application, the petitioner moved a review application in such Writ Petition No. 64217 of 2010 which, according to the petitioner, is still pending, as per the statement made in paras 21 and 22 of the writ petition. However, the Principal Secretary (Law) & L.R., U.P. Government vide letter/order dated 03.01.2011 (Annexure -19) addressed to the District Magistrate, Sant Ravidas Nagar (Bhadohi) conveyed the decision of His Excellency the Governor for removal/disengagement of the petitioner. The Principal Secretary also requested him to apprise the Government with regard to action taken in this regard. Accordingly, the District Magistrate passed the consequential order dated 20.01.2011 removing the petitioner from the post of A.D.G.C. (Criminal). All these orders, i.e. orders dated ¾.09.2010, 10.09.2010 and 15.09.2010 (Annexures 11, 12 and 13) and the orders dated 03.01.2011 and 20.01.2011 are under challenge in the third writ petition being Writ Petition No. 17164 of 2011.
In this petition, It has also been alleged that the District Magistrate, Sant Ravidas Nagar, Bhadohi and the Principal Secretary/L.R. acted illegally and arbitrarily in passing the orders. It has been submitted that the petitioner vide letter dated 18.12.2010 requested the District Magistrate, Sant Ravidas Nagar to forward the papers in respect of Sessions Trial No. 42 of 2008 to the State Government for filing the appeal as, in the opinion of the petitioner, the judgment in the said Sessions Trial was fit one to be appealed against, but nothing has been done. Likewise, against the acquittal orders passed in Sessions Trial No. 145 of 2007 (State Vs. Harnarain) and Sessions Trial No. 130 of 2007 (State Vs. Akhtar and Rashid), similar recommendations were made but no heed was paid. It is also the case of the petitioner that he sent reminder letters to the District Magistrate for sending these three proposed appeals to the Government after seeking opinion of the D.G.C. (Criminal). These reminder letters are annexed as Annexures - 20 and 20A to this writ petition.
The main grounds for challenge in this petition are that the renewal of the term is done in accordance with the procedure laid down in the L.R. Manual on the recommendation of the District Judge and the District Magistrate; the District Magistrate has no authority to remove or disengage or dismiss any of the officers engaged as A.D.G.C. (Criminal) or D.G.C. (Criminal); before passing the order of disengagement, no notice or opportunity of hearing was given to the petitioner nor any enquiry has been held on the alleged complaint and nor the copy of the complaint was made available to the petitioner before passing the impugned orders; the principles of natural justice and the provisions contained under Article 311 (2) of the Constitution of India have also been violated, and the order passed by the District Magistrate is beyond his competence and the same has been passed without application of mind.
A counter affidavit has been filed on behalf of the State - respondents annexing the relevant provisions contained in L.R. Manual in respect of appointment of A.D.G.C. (Criminal) and the latest decision of the Supreme Court dated 04.05.2011 rendered in Civil Appeal No. 3935 of 2011 (State of U.P. & Ors. Vs. Rakesh Kumar Keshari & Anr.), wherein the Supreme Court has held that the decision of the State Government not to accept the recommendation made by the District Magistrate cannot be said to be arbitrary. There is no manner of doubt that the A.D.G.C. (Criminal) are not only officers of the Court but also the representatives of the State. They represent the interest of the general public before a Court of Law. The holders of the post have a public duty to perform . However, in the matter of engagement of A.D.G.C. (Criminal) a concept of public officer does not come into play. The choice is that of the Government and none can claim a right to be appointed because it is a position of great trust and confidence. Article 14, however in a given case, may be attracted to a limited extent if the State fails to discharge its public duty or acts in defiance, deviation and departure of the principle of law.
By filing counter affidavit, the State - respondents have denied the allegations levelled against them. As regards allegations against Shri S.C. Sharma - respondent no.6, it has been averred that the same do not call for any reply from the answering respondents for want of knowledge. The petitioner is not supposed to criticize the functioning of the Court. It has also been denied that the District Magistrate, Sant Ravidas Nagar (Bhadohi) has no competence to restrain the petitioner from functioning as A.D.G.C. (Criminal) and that the District Magistrate passed the order considering the letter of the District Judge in respect of doubtful integrity of the petitioner. It has also been averred that on receipt of the explanation on the complaint, a report from the District Magistrate was sought for and the District Magistrate in his report dated 10.12.2010 mentioned that the allegations made against the petitioner were found to be true and the work, conduct and behaviour of the petitioner as A.D.G.C. (Criminal) was not found proper and up to the mark and, hence, the petitioner has legally been disengaged. It has also been denied that District Magistrate and the Principal Secretary (Law) & L.R. have acted illegally and in an arbitrary manner. It has also been submitted that in 2008 although the District Magistrate had recommended the name of the petitioner for renewal but later on when the complaint was received in 2010, an explanation was called for from the petitioner and after considering the same, the order for disengagement of the petitioner was passed.
The petitioner has filed a rejoinder affidavit wherein the averments made in the counter affidavit has been denied. In support of his case, the petitioner has brought on record certain judgments by way Annexure RA-1 to the affidavit. He has again asserted that the impugned orders have been passed without application of mind on extraneous consideration and without affording any opportunity to the petitioner. In paragraphs 8 and 9, it has been asserted that the allegations made against Shri S.C. Sharma, Additional District & Sessions Judge, Court No.1 are true and are based on material facts. In fact, Shri S.C. Sharma was the tenant of one Mool Chand Gupta, whose house is adjacent to the house of Sri Udai Bhan Singh and Sri Dinesh Singh Advocate (counsel of Udai Bhan Singh) is also living in the same locality and as such the relationship in between Sri S.C. Sharma, Sri Udai Bhan Singh, Ex. MLA and Sri Dinehs Singh, Advocate is in a very good terms. It has also been averred that Sri Udai Bhan Singh was convicted in S.T. No. 162 of 2000 on 24.04.2004 which was prosecuted by the petitioner as A.D.G.C. There are certain other averments in respect of relationship between Shri S.C. Sharma and Udai Bhan Singh.
It has also been stated in paragraph 10 of the rejoinder affidavit that Sessions Trial No. 42 of 2008 (State Vs. Pramod) was conducted by the petitioner as A.D.G.C (Criminal) and under the influence of Sri Udai Bhan Singh, Shri S.C. Sharma, Additional District & Sessions Judge acquitted the accused Pramod and the petitioner, in discharge of his legal duties, applied for certified copy of the judgment delivered by Shri S.C. Sharma, A.D.J., who got annoyed and threatened the petitioner with dire consequences including removal from the Court and from the post held by him in respect of which the petitioner made complaints to Hon'ble the Chief Justice of this Court. It has also been stated that Shri S.C. Sharma, having found no way out to defend himself, tried to make false and frivolous allegations assailing the integrity of the petitioner and it was on this background that Shri Sharma called upon Shri Nagesh Kumar, real brother of Pramod, accused in ST No. 42 of 2008, and motivated him to make complaint against the petitioner and on his complaint, Shri Sharma, A.D.J. passed the order dated 31.08.2010. It has also been stated that the petitioner was summoned as a witness by the CBI Court No.31, Patiyala House in a case against Shri Udai Bhan Singh and his accomplish Ashok Kumar Mishra. According to the petitioner, it is in the aforesaid background that the petitioner was removed from Court No.1 on the basis of the alleged report of Shri S.C. Sharma dated 31.08.2010 which, according to the petitioner, is prejudicial to his interest and to protect the interest of the criminals and to create hindrance in the discharge of public duty by the public servants and the petitioner has been victimized to such an impious mission.
In reply to the criticism of the functioning of the Court, it has been stated in paragraph 15 of the rejoinder affidavit that the functioning of the Court should not be criticized by any one in the interest of smoothing functioning of the judicial system but when the Presiding Officer of the Court is so dishonest and unfair and has colluded with hardened criminals of the locality, he cannot be protected under the garb of the judicial functioning. It has also been stated in para 17 of the affidavit that the District Judge never wrote any independent letter to the District Magistrate, he only forwarded the report of Shri S.C. Sharma, A.D.J. - respondent no.6 vide letter dated 04.09.2010 and in pursuance of this letter, the District Magistrate restrained the petitioner from working in Court No.1 vide order dated 10.09.2010. Some other facts, which have already been stated in the writ petition, have been stated in this rejoinder affidavit.
A supplementary affidavit has also been filed on behalf of the petitioner bringing on record the following documents/orders/letters:
1.Copy of interim order dated 07.11.2001 passed in Writ Petition No. 34647 of 2001 staying the stricture passed against the petitioner.
2.True copy of order sheet of Crl. Revision No. 24 of 2007 (State of U.P. Vs. Sandeep Singh alias Minto) containing various orders including order dated 19.02.2007.
3.True copies of orders dated 16.08.2000 and 19.02.2007 of the District Magistrate, Sant Ravidas Nagar.
4.True copy of order dated 04.04.2009 of the Commissioner, Vindhyachal Region, Mirzapur setting aside the order dated 23.11.2008 of the then District Magistrate, Sant Ravidas Nagar making some adverse remarks against the petitioner.
5.True copies of letters of the District and Sessions Judge, Sant Ravidas Nagar dated 16.07.2008 recommending the name of the petitioner for renewal and the letter dated 16.09.2008 of the District Magistrate recommending the name of the petitioner for renewal of his term.
6.Reminder letter dated 21.01.2010 of the District Magistrate, Sant Ravidas Nagar to the Principal Secretary (Law) and L.R., Government of U.P.
Against this background, we find that on earlier occasion, the District Magistrate on the recommendation of the District Judge had made several communications to the State Government recommending the name of the petitioner for his renewal. Such recommendations are on the record which are dated 3rd May, 2003; 2nd November, 2003; 17th June, 2004 and 16th September, 2008. However, after 2008 some dispute arose between the petitioner and the Additional District Judge Sri S.C. Sharma. The details of those facts have already been mentioned herein above. It is stated that the petitioner's performance was excellent and his success rate in prosecuting cases are 85 %.
During the pendency of his earlier writ petitions, some subsequent developments have taken place. The State Government had amended the Legal Remembrance Manual vide order dated 13th August, 2008. The said amendment was challenged by the U.P. Shashkiya Adhivakta Kalyan Samiti by filing Writ Petition No. 7851 (MB) of 2008 (U.P. Shashkiya Adhivakta Kalyan Samiti Vs. State of U.P.). The said writ petition was allowed and the amending Law Remembrance Manual was found to be contrary to the judgment of this Court in Shailendra Kumar Ojha Vs. State of U.P., 2004 (1) UPLBEC 415, against which Special Leave Petition was preferred.
The Supreme Court has affirmed the judgment of the Shailendra Kumar Ojha's case wherein it was held that the consultation with the District Judge by the District Magistrate was mandatory. The State Government had also amended Section 24 of the Code of Criminal Procedure by (U.P. Amendment) Act, 1991. By the said amendment, the State Government had deleted those provisions. Reference may be made to the fact that the provisions contained in sub-sections (4) (5) and (6) of Section 24 of the Code of Criminal Procedure provided that the opinion of the District Judge was mandatory while making appointment on the post of Additional District Government Counsel, Assistant District Government Counsel, Panel Lawyers and Sub. District Government Counsels.
The Division Bench in another case on 12.1.2012 in Misc Bench No. 8246 of 2011 (Bishan Pal Saxena Vs. State of U.P. and others) has issued certain directions which are extracted hereunder below:-
(1)Let the State of U.P. re-consider the selection and appointment on the post of Additional District Government Counsel, Assistant District Government Counsel, Panel Lawyers and Sub District Government Counsel in the light of the aforesaid two judgments passed by the Division Bench of this Court afresh, expeditiously, say within a period of four months from today.
(2)The persons appointed in pursuance to old provision shall continue for the period of four months or till reconsideration of their cases in the light of the aforesaid two judgment passed by the Division Bench (supra), whichever is earlier.
(3) No fresh appointments shall be done henceforth except in accordance to law settled by aforesaid two judgments (supra). In case some of the petitioners are still holding the post then they shall continue on their respective post till the State Government considers afresh with regard to their renewal of appointment with due opportunity to the serving incumbents in the light of judgments of this Court (supra).
Against the judgment and order of the Division Bench dated 12.01.2012 in Bishan Pal Saxena's case and also against the judgment and order dated 11.01.2012 rendered in Misc. Bench No. 7825 of 2011 (Sadhana Sharma Vs. State of U.P. & Ors.), a large number of Special Leave Petitions were filed. The State Government also filed SLP (Civil) No. 4042-4043 of 2012. All the Special Leave Petitions were decided by a common judgment dated 17.7.2012. The Special Leave Petition (C) No. 4042- 4043 of 2012 filed by the State of U.P. was withdrawn as the State Government took a policy decision to implement the judgment of the High court in its entirety. The Supreme Court allowed the State Government to withdraw its SLP and it recorded the decision taken by the State Government that it would continue to adopt the same policy in future as well.
However, the Supreme Court disposed of all the Special Leave Petitions and the civil appeals arising out of the aforesaid judgments of the High Court by issuing certain directions. The directions of the Supreme Court are extracted hereunder:-
"Since there is unanimity of the view that the judgment of the High Court is required to be implemented in true spirit and substance, we consider it necessary to issue certain clarifications with regard to the judgment in question and despite the fact that the State Government has chosen to withdraw the Special Leave Petition against the judgment and has taken a policy decision to implement the same, the directions are :-
(1)In terms of the above referred clauses of the judgment of the High Court, the vacancies which have already been filled in accordance with Section 24 of the Criminal Procedure Code and certain provisions of the L.R. Manual and unamended provisions of the Criminal procedure Code. To be more specific, i.e., the appointments which have been made in consultation with the High Court and/or the District and Sessions Judge of the respective district and who continue to function in the respective posts shall not be disturbed.
(2)Against the existing vacancies the cases of all the appellants herein, who are in serv ice or are out of service as well as any of the petitioners before the High Courts, whose services were terminated at any point of time including the persons who had filed writ petitions in the High court during the pendency of the writ petition and/or the present civil appeals shall be considered for renewal/reconsideration in accordance with the judgment of this Court within a period of three months from today.
(3)For implementation of these directions the Secretary, Department of Law and Justice, State Government, shall be personally responsible and should complete the exercise within the stipulated period to ensure that required number of public prosecutors are present in the Courts for expeditious disposal of cases.
The renewal/ reconsideration/appointment shall be done by the concerned authority in the above manner. We would clarify that all the appointments either directly or by way of renewal/reconsideration shall only be made in consultation with the High Court and/or the District and Sessions Judges as the case may be. All concerned shall duly abide, and without default, with the process of selection and appointment, as afore stated.
All the I.As and appeals are, accordingly, disposed of."
We find that the petitioner also falls within the category mentioned by the Supreme Court as his writ petitions were pending in the High Court when the Special Leave Petition was disposed of.
However, the petitioner wants continuance of his work in view of the Government Order dated 11.6.2012 which has been passed in compliance of the order of the Division Bench of this Court dated 12.1.2012 passed in Bishan Pal Saxena (supra). The relevant portion of the order is quoted below :-
"Since the amendment L.R. Manual and U.P. Amendment in Cr.P.C. has been struck down(supra), the selection and appointment done become illegal and void. However, to meet the exigencies of services appointment done under the amended L.R. Manual may be permitted to continue for reasonable period, permitting the State Government, to re-consider the renewal & appointments in the light of judgments of this Court (supra)"
We are of the view that when the Supreme Court has directed to consider the cases and the Division Bench of this Court has held that such type of candidate may be permitted to continue for reasonable period, we direct the State Government to re-consider the case of the petitioner for renewal of his term. So far as continuance of service is concerned, the Division Bench did not make any order but let the option open to the State by using qualifying word "may". Therefore, no mandatory order can be passed by this Court allowing the petitioner to continue. The Court can only observe and hold that since the Supreme Court was pleased to direct re-consideration by the authority concerned, the same authority can also consider the issue of continuance of service of the petitioner within six weeks from the date of communication of this order.
With the above observations and order, all these writ petitions are disposed of finally, however, without imposing any cost.
(Justice Amitava Lala, ACJ) I agree.
(Justice Pradeep Kumar Singh Baghel) November 8, 2012 AHA/SSM Hon'ble Amitava Lala, Acting Chief Justice Hon'ble Pradeep Kumar Singh Baghel, J.
Under the authority of Hon'ble the Acting Chief Justice additional cause list has been printed for the purpose of delivery of judgment and the same has been delivered in the Court upon notice to the parties.
The writ petition is disposed of, however, without imposing any cost.
Dt./ 08.11.2012 AHA/-
For judgment and order, see order of the date passed on the separate sheets (seventeen pages).
Dt/- 08.11.2012 AHA/-