JUDGMENT Bhanwar Singh, J.
1. The petitioner Shankar Singh Yadav has filed this petition under Article 226 of the Constitution of India praying for Issuance of a writ in the nature of mandamus commanding the opposite parties to issue the order of renewal of his appointment as District Counsel (Criminal), Jhansi.
2. In short, the petitioner's case may be narrated as follows.
3. Petitioner Shankar Singh Yadav was a practising lawyer at Jhansi and keeping in view his performance as a legal practitioner, he was appointed as District Government Counsel (Criminal), hereinafter referred to as the D.G.C, (Criminal), initially for a period of one year with effect from August 16, 1990. However, the said appointment ran into rough weather following a litigation and an order of the High Court directing the Government to maintain status quo. Subsequently on attaining the age of sixty years of the then incumbent, the post of D.G.C. (Criminal) fell vacant and consequently the petitioner was appointed as D.G.C. (Criminal) vide order dated 15.12.1990. He was, however, terminated vide Government order dated 28.1.1992. Being aggrieved by the said order, the petitioner filed Writ Petition No. 4821 (S/B) of 1992 and the High Court vide its judgment of July 8, 1993 quashed the termination order dated 28.1.1992 with a direction to consider the petitioner's application for renewal afresh. Thereafter the petitioner was considered for renewal and his term was initially renewed upto 31st March, 1995 but later upto March 31, 1997. In January, 1997 the petitioner again applied for renewal of his term for another period of three years. The District Magistrate, Jhansi, in consultation with the District Judge, Jhansi, sent his D.O. letter in February, 1997 to the Joint Secretary-cum-Joint Legal Remembrancer. U. P. Government, Lucknow, clearly recommending the case of the petitioner for renewal. The petitioner reliably learnt that his case for renewal was finally approved by the Advisor to the Governor on 20.3.1997 but the same could not be implemented though the District Judge and the District Magistrate found the petitioner's work and conduct to be outstanding. The petitioner always performed his duties with utmost devotion and honesty and he always commanded and still commands his reputation for his integrity. It was on the basis of his performance to the greatest satisfaction of the district administration that his case for renewal was recommended by the district authorities. Despite all that, the matter of petitioner's renewal remained pending for long. The reason for withholding the petitioner's renewal, as was reliably learnt by him, was a complaint by the Convenor of the District Bahujan Samaj Party, Jhansi, who wrote a letter to the Chief Minister making wild allegations and recommending cancellation of the petitioner's renewal. If any, in his letter, the Convenor of the aforesaid party had also recommended for appointment of one Rati Ram Verma as the D.G.C.
(Criminal). Not only this, but a Minister of the State also by addressing a letter to the then Chief Minister made identical recommendation as was made by the Convenor of the Bahujan Samaj Party. In this background, the petitioner had reasons to apprehend that his order for renewal had been withheld despite its approval by the Governor's Advisor. Feeling aggrieved and being constraint of the above circumstances, the petitioner filed this writ petition praying for the writ of mandamus as Indicated earlier.
4. The State of U. P. resisted this petition on the grounds. Inter alia, that the matter regarding the petitioner's renewal was still pending before the Government and as such the petition for issuance of a writ in the nature of mandamus being premature was not maintainable. As a matter of fact, as asserted further, the petitioner could not claim as a matter of right his renewal as D.G.C. (Criminal). The Government has right to refuse renewal for any valid reason and it is the discretion of the State Government either to grant or refuse renewal in respect of the any Government lawyer. No pleader has an unfettered right of claiming his engagement on renewal. Since some complaints were received against the petitioner, orders regarding enquiry by the District Magistrate were issued and a report was awaited. For this reason, the order of the Governor's Advisor could not be executed and otherwise also, since in the meantime the popular Government was formed in the State, the Governor's renewal had no sanctity unless it was authenticated by the Secretary to the Government under the Authentication Rules. The main reason for the delay in the matter was on account of the District Magistrate's report being awaited and now since the said report has been received, a decision regarding renewal of the petitioner as D.G.C. (Criminal) will be taken in accordance with the Legal Remembrancer's Manual. As the political activities of a D.G.C. disqualify the incumbent to hold the post in view of para 7.07 of the Legal Remembrancer's Manual, an enquiry against the petitioner in the matter of such political activities had been ordered. The decision on the Issue was under consideration and since the proposal regarding the renewal of the petitioner's term has not been turned down so far, the petition being misconceived is liable to be dismissed and as such there was no question for Issuing order of renewal in favour of the petitioner.
5. On having analysed the averments and counter-averments of the parties, the only question which would arise for determination is as to whether the petitioner would be entitled, in the circumstances of the case, to get his term as D.G.C. (Criminal), Jhansi, renewed. It is significant to note that vide interim order dated 2.5.1997 of this Court, the opposite parties were directed to allow the petitioner to continue to work as D.G.C. (Criminal) and on the strength of the said order, the petitioner still continues to discharge the functions of D.G.C. (Criminal), Jhansi. It is an undisputed fact that the renewal of the term of D.G.C. (Criminal), legally termed as Public Prosecutor is renewed in accordance with the provisions of para 21.08 of the Legal Remembrancer's Manual. We need not refer to the procedure which is envisaged in para 21.04 and followed regarding first appointment of an incumbent to the post of D.G.C. (Criminal). The petitioner was in the beginning appointed with effect from 15.12.1990 for a period of one year and thereafter his term was extended. However, his appointment was prematurely terminated, in consequence whereof he had filed a Writ Petition No. 4821 (S/B) of 1992 which was finally decided by this Court vide its judgment dated 8.7.1993 and by virtue of the said judgment, his termination was quashed and his proposal regarding renewal was considered afresh and he was allowed to complete his term and eventually his term was renewed upto 31.3.1997. This factual pictorial of the petitioner depicts struggling renewals and even his initial appointment had run into rough weather. Traversing through the ups and downs and facing all odds including a long drawn battle, the petitioner again landed in the legal fight for justice. Before, we would advert to the necessary and relevant provisions governing the term of the Public Prosecutor, we are constrained to notice this sort of sorry state of affairs and we are inclined to observe that malady lies somewhere in the system in spite of the fact that Legal Remembrancer's Manual on the point is crystal clear laying down very simple provisions and procedure to be followed. There is no reason as to why the recommendation of the District Magistrate in consultation with the Sessions Judge of a particular district is not adhered to in respect of the appointment and renewal of the term of a D.G.C. (Criminal). The Government may of course have the final say in the matter but If there are grounds to differ from the recommendations of the two top district functionaries, the recommendations may be turned down but with such grounds and cogent reasons to be recorded in writing. If there is nothing adverse, the Legal Remembrancer following and acting upon the recommendations of District Magistrate and Sessions Judge should have a final word in this regard and we are sure that if the practice of abiding with the provisions of Legal Remembrancer's Manual is religiously followed, neither the Government will be dragged into litigation, nor the public at large will have any doubt in the efficacy of the administration of justice in the district judiciary of which D.G.C. (Criminal) is a vital organ.
6. As Indicated above, the provisions regarding renewal of the term of a Public Prosecutor or D.G.C. (Criminal) are laid in para 21.08 of the Legal Remembrancer's Manual which postulates as follows :
"21.08. The District Magistrate shall after consultation with the Sessions Judge submit a confidential report in respect of the Public Prosecutor and Additional Public Prosecutors giving details about the percentage of success of cases conducted by them and the general reputation which they enjoy. Where the percentage of success is low, the reasons given by the Public Prosecutor or Additional Public Prosecutor for the same should also be commented upon. After every three years, he shall make a special assessment of each such Public Prosecutor or Additional Public Prosecutor and recommend whether the person concerned should be granted extension for a further term of three years or for a short term only."
7. A bare glance at the passage quoted above would show that the recommendation of the District Magistrate in consultation with the Sessions Judge will have the major role to play in the matter of renewal of a Public Prosecutor's term. In the case in hand, as the Government file will reveal, the term of the petitioner scheduled earlier to expire on 31.3.1997 was proposed to be extended by the Secretary, Judicial and Legal Remembrancer for a further period of three years. The report dated 4.3.1997 by itself speaks of satisfactory performance of the petitioner on the basis of the report of Sessions Judge, Jhansi, who had disclosed in his report that the percentage of the petitioner's success was 62. The Principal Secretary. Judicial and Legal Remembrancer approved the proposal and further submitted the note to the Advisor to the Governor for approval as the State then was reeling under the Presidential Rule. In his turn, the Advisor finally approved the proposal. However, before the Government order could be issued, there was a change in the Government culminating into the serious problems for the petitioner. A complaint was received against the petitioner and a local Minister of Jhansi also endorsed the contents of the complaint. One Sri Martial Balmiki alias Harish Painter was the complainant. In the meantime, two more complainants, one Babulal and the other Narain Das Verma also joined hands with the first complainant hurling wild allegations against the petitioner. In view of the allegations recited in the complaints, an enquiry was ordered against the petitioner and his renewal was withheld. However, on an enquiry being launched by the District Magistrate, the City Magistrate, Jhansi Sri J. C. Pandey conducted the enquiry and vide his enquiry report dated 31.3.1998 as is on the file of the Law Secretariat the City Magistrate found that all the allegations in the complaints were without any substance. The petitioner was neither found to be involved in any political activity pertaining to any political party, nor any Instance against his integrity came to light. There was no evidence at all to support these two points. It was also blatantly wrong to allege that the petitioners looked only the bail work but he was also found to have actively participated in the trial of the sessions cases. The allegation that Ramesh peon was a blue-eyed boy of the petitioner was wholly irrelevant so far as the high office of a D.G.C. (Criminal) was concerned. By no stretch of reasoning the said peon was found to have indulged in any Illegal activity. The percentage of conviction in the cases which were attended to by the petitioner is meaningless in these days. If the witnesses turned hostile, there was nothing to blame the petitioner for any such eventualities. In view of this enquiry report, there is no reason as to why the petitioner's term be not renewed. The Sessions Judge vide his report, Annexure-4 has termed the work and conduct of the petitioner to be excellent and apart that, he had also heard nothing against his integrity. According to the opinion of the Sessions Judge, the petitioner had a sound legal knowledge of law. The District Magistrate, vide his letter Annexure-5, relying upon the report of the Sessions Judge, recommended for renewal of the petitioner's term for a further period of three years. These reports particularly that of the Sessions Judge, carry a great significance as it was the Sessions Judge who might have almost daily supervised the work and conduct of the petitioner. The provisions of Legal Remembrancer's Manual, as referred to above point to an inclination that the recommendation of the District Magistrate on the basis of the report of the Sessions Judge must be accepted to be as final unless of course there are cogent reasons to differ. In the case in hand, as observed above, we are inclined to observe that there is not an iota of any report which might be considered as a basis to discredit the recommendation of the two district functionaries. The Hon'ble Supreme Court has also upheld the above spirit and norms in the case of Kumari Shrilekha Vidyarthi and others v. State of U. P. and others, (1991) 1 SCC (L & S) 742. The relevant observation of the Hon'ble Supreme Court may be quoted as below :
"Viewed in any manner, the impugned circular dated February 6, 1990 is arbitrary. It terminates all the appointments of Government counsel in the districts of the State of Uttar Pradesh by an omnibus order, even though these appointments were all individual. No common reasons applicable to all of them Justifying their termination in one stroke on a reasonable ground has been shown. The submission on behalf of the State of Uttar Pradesh at the hearing that many of them were likely to be re-appointed is by Itself ample proof of the fact that there was total non-application of mind to the Individual cases before issuing the general order terminating all the appointments. This was done in spite of the clear provisions in the L. R. Manual laying down detailed procedure for appointment, termination and renewal of tenure and the requirement to first consider the existing incumbent for renewal of his tenure and to take steps for a fresh appointment in his place only if the existing Incumbent is not found suitable in comparison to more suitable persons available for appointment at the time of renewal. In the cases of existing appointees, a decision has to be first reached about their non-suitability for renewal before deciding to take steps for making fresh appointments to replace them. None of these steps were taken and no material has been produced to show that any existing incumbent was found unsuitable for the office on objective assessment before the decision to replace all by fresh appointees was taken, The prescribed procedure laid down in the L.R. Manual which has to regulate exercise of this power was totally ignored. In short, nothing worthwhile has been shown on behalf of the State of U. P. to support the impugned action as reasonable and non-arbitrary. The impugned circular must, therefore, perish on the ground of arbitrariness which is an available ground for judicial review in such a situation."
8. In view of what has been discussed above, we hold that this petition succeeds. Let a writ of mandamus be issued directing the opposite party No. 1 to renew the petitioner's term for a further period of three years with effect from 1.4.1997.