Holding

Section 24(4) of the CrPC obliges the District Magistrate to prepare a panel of names in genuine consultation with the Sessions Judge, and a failure to do so, as occurred here, invalidates the rejection of the judges' recommendation for extension.

Summary

Several lawyers were appointed as Assistant District Government Counsel (Criminal) under Section 24 of the Criminal Procedure Code and the Legal Remembrancer Manual. As their terms were about to expire, the District Judge prepared a List ‘A’ recommending their extension, but the District Magistrate rejected the recommendation with a generic comment and the State Government refused to extend the terms. The counsel filed writ petitions, which were dismissed by the High Court, leading to special leave appeals before the Supreme Court. The Court examined whether the District Magistrate complied with the statutory requirement of preparing a panel of names in genuine consultation with the Sessions Judge as mandated by Section 24(4) and the Manual. It held that the Magistrate failed to conduct the required consultation and therefore the rejection was invalid. Consequently, the Court allowed the appeals seeking extension (CAs 722 & 723) and directed the District Magistrate to redo the statutory procedure within four months, while dismissing the separate appeals (CAs 386 & 387) where the counsel were placed in List ‘B’.

Issues considered

Whether the District Magistrate's rejection of the District Judge's recommendation for extension of Assistant District Government Counsel violates Section 24(4) of the Criminal Procedure Code.
Whether the procedure prescribed in the Legal Remembrancer Manual is supplementary to Section 24 and must be complied with.
Whether the State Government can refuse extension without assigning reasons.
Scope of judicial review over appointments and extensions of public prosecutors under Section 24.

Legislation cited

Code of Criminal Procedure, 1973s. 24(4), s. 24(5)
Constitution of Indias. Article 136

Subjects

Section 24 CrPCappointment of public prosecutorjudicial reviewLegal Remembrancer Manualextension of termconsultationpanel of namesadministrative lawU.P. Stateassistant district government counsel

Judgment

-. HARPAL SINGH CHAUHAN AND ORS. ETC.

"·
A

STATE OF U.P.

JUNE 15. 1993

[KULDIP SINGH AND N.P. SINGH, J.J.] B

Code of Criminal Procedure, 1973-Section 24 read witlz Paras 7.06, 7.08
of the Legal Remembrancer Manual-Renewal of term of District Governmellt
Counsel Procedure under the Manual- Requiremems under S.24 of tlze Code.

Code of Crii~inal Procedure, 1973-Section 24-Public Prosecutor or C
Additional PubNr'! Prosecutor-Term of-Extension of renewal-Scope of-Duty
of Sessions Judge and ·District Magistrate- Panel of
lawyers-Preparation-Necessity of

Co11stit111ion ofIndia, 1950-Article 136-Appeal-Assistant District Gov- D
ernment Counsfl's names recommended by Sessions Judge for extension of their
tenures not recommended by District Magistrate-Rejection ofSessions Judge's
recommendO!ion by State-legality of

Civil Services-Assiswnt District Government Counsel's names recom-
mended b}• sessions Judge for extension of their tenures not recommended by E
District Magistrate-Rejection of Sessions Judge's recommendation by
S1a1e-Legalil)• of

Code of Criminal Procedure, 1973-Section 24(4 ~Consideration of suit-
ability of a person to the post of District Government Counsel by Distrl~t-~ F
Magistrate-Judicial review by Courts-Scope of

C.A. Nos. 722 and 723 of 1993.

On 25.2.91 the appellants except appellant No. 3 were appointed as
Assistant District Government Counsel (Criminal) in accordance with the G
provisions of Section 24 of the Criminal Procedure Code and the Legal
Remembrancer Manual. The appellant No.3 was appointed on 13.12.1990.
The last date of the tenure .;f the appellants, except appellant No.3, was
31.12.1991, whereas the tenure of appellant No. 3 was upto 13.12.1991. Before H

969
970 SUPRE~1E COURT REPORTS (1993] 3 S.CR

A the expiQ· of their terms, the District.Judge, preparing two list<>, 'A' and 'B'
recommended the appellants' names for extension of their tenures. List 'A'
contained the names of Lawyers (including the appeUants), whose work and
conduct was approved for their extension, whereas List 'B' contained the
remaining names of the lawyers (including app~llants in C.A. Nos.386, 387/
1993) who were considered as 'average lawyers'. The Distr·ict ,Judge re-
B quested the District Magistrate to send his recommendation to the State
Government.

The District Magistrate did not recommend t~e appellants' names as
their reputation, professional work, behaviour and conduct was not found in
accordance with public interest:
c
On 28.12.1991 the State Government extended the terms of the appel-
lants till further orders. Later without assigning an)' reason, the extension
recommended by the District ,Judge was rejected by the State Government.

D The appellants fded writ petitions in the High Court against the
Government's decision. The High Court dismissed their writ applications,
against which the present appeals were fded by special leave before this
Court.

C.A. Nos. 386 & 387 OF 1993.
E
The appeliants' names were included in the List 'B' prepared by the
District ,Judge. The State Government rejected the recommendation of the
District.Judge, without assigning any reason. The writ petitions preferred by
them in the High Court were dismissed. Hence these appeals by special leave.

F As there was a common is~ue arose in these appeals, same were heard
and decided together.

The appellants contended th~t in view of Para 7 .06(2) of the Legal
Remembrancer Manual the appointment of any legal practitioner as a
District Government Counsel did not automatically come to an end.
G
The State submitted that as Section 24(4) of the Code of Criminal
Procedure vested power in the District Magistrate to consider the suitability
of the person concerned, for appointment, according to his opinion, as such
_there was not much scope of judicial review by Courts, unless a clear case of
H ~alice on the part of the District Magistrate was made out.
'. :·,'.·~
HARPAL SINGH v. STA1E OF U.P. 971

Allowing the Civil Appeals Nos. 722 and 723of1993 and dismissing the A
Civil Appeal Nos. 386 and 387of1993, this Court-

HELD: 1.1. When sub-section (4) and sub-section (5) ofSection 24 of the
Code of Criminal Procedure, speak about preparation ofa panel, out of which
appointments against the posts of Prosecutor or Additional Public Prosecutor
have to be ma<lc, then the Sessions Judge and the District Magistrate arc B
required to consult.ilid discuss the names of the persons fit to be included in
the panel and fui'nclude such names in the panel.

1.2. The expressions "panel of names of persons", do not mean that some
names are to be suggested by the Sessions Judge and some comments are to
c
be made, in respect of those names by the District Magistrate, without proper
consultation and discussion over such names. The statutory mandate ought
to have been complied with by th~ J?istrict Magistrate and the Sessions Judge
. .
in its true spirit.

1.3. Section 24 of the Cod~·does not speak about the extension or renewal D
of the terms of the Public Prosecutor or Additional Public PNsecutor. But
after the expiry of the term of the appointment of persons concerned, it
requires the same statutory exercise, in which either new persons are
appointed or those who have h~l•.'!working as Public Prosecutor or Additional
Public Prosecutor, are again•ppointed by the State Government, for a fresh
term. The procedure prescribed .in the Manual - to the extent - it is not in E
conflict with the provisions ofSection 24, shall be deemed to be supplementing
the statutory provisions. But merel)' because there is a provision for extension
or renewal of the term, the same cannot be d'ilimed as a matter of right.

1.4. While exercising the power of judicial review eveq)n respect of F
appointment of members of the legal profession as District 'Government
Counsel, the Court can examine whether there was any infirmity in the
"decision making process". Of courSf, while doing so, the Court cannot
substitute its own judgment over the final decision taken in respect ofselection
of persons for those posts.
G
Chief Constable ofthe North Wales Pollce v. Evans, [1982] 3 All E.R.141;
referred to.

· 1.5. In the facts of the present case, th~ procedure prescribed by Section
24 of the Code have not been followed by the District Magistrate. There is
H
972 SUPREME COURT REPORTS (1993) 3 S.C.R.

'
A . nothing on the records of the case to show that any panel, as required by sub-
section (4) of Section 24, was prepared by the District Magistrate in consul-
~tion with the District & Sessions Judge. The District l\fagistrate simply
"tnade some general comment in respect of the appellants, when the District &
Sessions.Judge had put them in List 'A' ofhisrecommendation. This shall not
amount to either the compliance of sub-section (4) of Section 24 of the Code
B or ParaJ.06(2) of the Manual. It appears there has been no effective or real
consultatiun between the Sessions .Judge and the District Magistrate for
preparation of the panel, as contemplated by sub-section (4) of Section 24 of
the Code.

C t .6. The members of the legal profession are required to maintain high
standard of legal ethics and dignity of profession. They are not supposed to
solicit work or seek mandamus from courts in matters of professional
engagements.

1.7. In view of the strong recommendation about the quality of the
D appellant's professional work, the District Magistrate should have applied
his mind in consultation with the Sessions Judge, in respect of each individual
case, instead of making a general and identical comment against all the
appellants.

1.8. As the District Magistrate has not performed his statutory duty as
E enjoined by law, the appeals of the appellants have to allowed.

1.9. The District Magistrate is directed to perform his statutory duty
afresh, in accordance with the requirementofSection 24 of the Code read with
the relevant paragraphs of Chapter VII of the Manual, which are not
F inconsistent with Section 24 of the Code, so far the appellants are concerned,
if the vacancies are still there. The necessary steps shall be taken preferably
within four months from"the date of this judgment. The State Government
shall thereafter perform its part in accordance with Section 24 and different
paragraphs of the Manual which are applicable in the facts and circum·
stances of the case.
G
Kumari Shri/ekha Vidyarrhi v. State of U.P., [1991] 1SCC212, referred to.

2. The District & Sessions Judge, who is required to express his opinion
· on the merit and the conduct of the persons recommended for appointment
\-\ or extension of the period as District Government Counsel, has expressed the
HARPAL SINGH'" STATE OF l;.P. 973

opinion that appellants (in C.As~ Nos. 386-387 of93) are "average law~·ers", A
and has put them in List' B'. In other words, neither the District & Sessions
.Judge has recommended the case o.f the appellants of these appeals for
extension nor the District l\fagistrate. Their case cannot be treated at par with
the a.ppellants of the other appeals. In such a situation, no useful purpose will
be ser\'ed by directing the District Magistrate tO perform his statutory dutJ',

- as required by sub-section (4) of Section 24 of the Code again, even in respect
of these appellants.
B

3 . ..\lthough power has been vested in a particular authority, in subjec·
tive terms, still judicial review is permissible.

c
Barium Chemicals Ltd. v. Company Law Board, AIR (1967) SC 295; State
...., of Assam''· Bharat Kala Blumdar Ltd; AIR (1967) SC 1766; Roluas Industries
Lta. v. S.D. Agarwal, AIR [1969) SC 707; The PurtabpurCompany Ltd. v. Cane
Commissioner of Bihar, AIR [1970) SC 1989 and; M.A. Rasheed\'. The State pf
Kera/a, AIR (1974) SC 2249, relied on.
D
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 722 and 723 of
1993.

From the Judgment and Order dated 13.11.92 of the Allahabad High Court
in W.P. Nos. 688 & 1246of1992.
E
WITH
CIVIL APPEALS NOS. 386 and 387 of 1993

From the Judgment and Order dated 13.11.92 of the Allahabad High Court
inW.P.Nos. 819and888ofl992. F

Rajiv Dhawan, P.K. Dey and Rakesh Gosian, Ms. Rani Jethmalani, (N.P.)
for the Appellants in C.A. Nos. 722~23/93.

R.P. Saxena for the Appellants in C.A. Nos. 386-87/93. G
,
Yogeshwar Prasad and Ms. Rachna Gupta for the Respondent.

The Judgment of the Court was delivered by
B
974 SUPREME COL' RT REPORTS I I 993] 3 S.C.R.

A N.P.SINGH.J The appellants in Civil Appeals Nos. 722 & 723of1993 had ....-
been appointed as Assistant District Government Counsel (Crimin al) to appear in
different criminal cases, on behalf of the State, in different Courts in the District
ofMoradabad. They filed the connected Writ Applications before the High Court
against the decision of the State Government, refusing tn extend their term for a
further period of three years, which were dismissed by the High Court.

It appears that the appellants. except appellant No. 3, Gopal Sharma, had
been appointed by Government Order dated 25 .2. 91. as Assistant District Govern-
ment Counsel (Criminal) in the District of Moradabad, in accordance with the
provisions of Section 24 of the Criminal Procedure Code (hereinafter referred to
as "the Code") and the Legal Remembrancer Manual (hereinafter referred to as
c "the Manual") against the substantive vacancies. Appellant No. 3, however, had
been appointed on 13.12.1990. The last date of the tenure of the appellants, other
than appellant No. 3, as mentioned in the aforesaid Government Order dated
25.2.1991 was 31.12.1991. The tenure of appellant No. 3 was up to 13.12.1991.
It is not in dispute that before the expiry of the term aforesaid, the District Judge,
D Moradabad, by his letter dated 27: 12.1991 recommended the names of appellants
for extension of their terms. The District Judge prepared two lists i.e. 'A• and 'B ·.
List' A· contained the name of those lawyers "whose work and conduct has been
approved for their extension as Government Counsel", whereas List 'B ·contained
the names of the remaining Government Counsel, who in the opinion of the
District Judge were "average lawyers··. The names of the appellants are in List 'A·
E . The District Judge requested the District Magistrate. Moradabad. to send his
recommendation to the State Government for extension of the .term of the
Government Counsel. mentioned in List' A·. The District Magistrate, after receipt
or the recommendation of the District Judge aforesaid, by a communication dated
2.1.92, did not recommend the names of the appellants, for extension of their
terms, saying that on the inquiry at his level, "reputation, professional work,
F behaviour and conduct of the above mentioned Government Counsel was not
found in accordance with public interest". It may be mentioned that on 28.12.91.
the State Government had extended the terms of the appellants till further orders.
Ultimately, without assigning any reason. the extension recommended by the
District Judge was rejected by the State Government, which decision is the subject
matter of the controversy in the present appeals.
G

In the State of U.P., the Manual i~ an authoritative compilation of the
.~
gn·,·ernment orders and instructions for the conduct of legal affairs of the State
Ooven~ment. Para 1.06 of Chapter VII gives the details of the Law Officers of the
Government, which includes the Government Counsel (Civil, Revenue, Criminal)
J L\Rl'i\L Sii\< ill .r. SlAllo OF L'.P. !NJ'. Sl:\<ill. .I.I

ahing \\'ith 111d11y 11lhl·rs like .ludil·i~tl Secretary ~111d I .cgislati\'e Secretary. The A
Chapter Vll 11f tile M;mu;tl c1111t;1ins the prucedure in respl'c'l 11f appllintmcnt and
rnnditiuns of engagements of District Civvernment C11unsel. The District Officer
is required tu cunsider all the applications received. in cor.sultation with the
District Judge and tn suhmit in order of prcicrence the names of the legal
practitiuners. ahrng with the upinion 11f the District Judge nn the suitability and
merit llf each candidate lll the State (_iLwernment. giving due wightage to the claim B
ut the existing incumbents, if any. After the receipt uf such recommendations, the
I .egal Rememhrancer is required tu submit the said recommendations with his
own upinion for the orders of the State Government.

In Para 7Jl6 of the l'vlanual. the procedure regarding the appointment and
renewal has been prescribed :-
c

"7 Jl(1. Appuintment ancl renewal - (I) The legal practitioner final Iy
sdected hy the ( i11vernment may be appllinted District Government
C\)unsel for one year fmm the date of his taking over charge.
D
(2) At the end of the aforesaid period, the District Officer after
consulting the District Judge shall submit a report on his work and
conduct to the Legal Rerncmberancertogether with the statement of
work dune in Form Nu. 9. Should his wurk or conduct be found to
he unsatisfactory the matter shall be reported to the government for
orders. If the report in respect of his work and conduct is sati sfac- E

--
tury. he may be furnished with a deed of engagement in Furm No. I
for a term not exceeding three years. On his first engagement a cupy
of Form No.2 shall be supplied to him and he shall complete and
return it to th~ Legal Remembrancer for record.
F
(3) The appnintmcnt of any legal practitioner as a District ( iuvcrn-
ment Counsel is unly prllfessional engagement terminabk ~it will on
either side and is nL1t appointment to a post under the gon~rnment.
Accordingly the gL)\'ernment reserves the power to terminate the
appointment of any District Government Counsel at any time
without assigning any cause."

_., Para 7.08 contains the procedure for renewal after expiry oi the original
term:-

"7.08. Renewal of term - (I J At least three months before the ~ .. ,::y
H
lJ76 Sl.'PRE~IE COl."RT REPORTS [199~1 ~ S.\.R.

of the term of a District Government Counsel. the District Offo:er
shall at"tcr consulting the District Judge and considering his past
recl>rd of w1)rk. conduct and age. report to the Legal Rememhrancer.
together with the statement of work done by him in form NlJ.9
whether in his opinion the term of appointment of such counsel
sh1JU Id he renewed or not. A copy of the opinion of the District Judge

-
;:
B should also he sent along with the recommendations of the Distri~t
omcer.

(2) Where recommendatiun for the extension or the term of a
District Guvemment Ci:>unscl is made for a specified perimJ only,
the reasons therefor shall also be stated hy the District Orficer.
c
(3) While forwarding his recommendation for renewal or the term
of a District Gon:rnment Counsel-

· (i) the District Judge shall give an estimate of the quality 1>f the
Counsers work from the judicial standpuint, keeping in view the
different aspects nf a lawyer's capacity as. it is manifested hefore
him in conducting Stale cases, and specially his professional
conduct.

(ii) the District Officer shall give his report about the suitahility l)f
E
the District Government Counsel from the administrative point of
view. his puhlic reputati1m in general. his character, integrity and
professional conduct.

(4) ff the government agrees with the recommendations of the
-
F District Officer for the renewal of the term uf the Gu,·ernment
Counsel. it may pass orders fi>r re-appointing him for a period not
exceeding three years.

(5) If the go\'ernment decides not tu re-appoint a Government
Counsel, the Legal Remembrancer may call upon the District
Officer to forward fresh reconm1endations in the manner laid down
in para 7.Cl3.
i-·· -

(6) The procedure prescribed in this para shall be followed on the
1-1 expiry of C\'ery successi\"c period of renewed appointment uf a
ii \Rl'Al. SIN(JIJ 1·. STAii 111 1·.P. (N.P. Sll"flll..1.1 977

-.. Nnte : The renewal tieyund ()() years of age shall depend upon
c1mtinu11us g1111d w1Jrk, sound integrity and physical fitness of the
(\1unsel."

It was p11i11teJ 11u1. ,,n tichalf 11f the appellants. that any legal practitioner
B
finally sekclt'd tiy the <im-crnml'nt may l°ll' app11inted as District Go\'emment
( \ 1unsl'I fur 1111e year frpm till' datl' '>f his taking O\'Cr charge. hut in \"il'\\ of Para
J 7.r l(111f.the r·.-1 anual. at the enJ 'if the aroresaiJ period. the I>istrict Magistrate. atkr

c1msultln_!,'. the District Judge has t11 suhmi! a report on his work anJ c11nJuct [11 the
I.egal Reml'mbrancer in the f11rm pn:scrihcd. If the report in respect 11f his w0rk
c
and c11nduct is satisfac!l1ry. then such Counsel shall he furnished with a deed of
engagemem in f11rm N11. I t«ir a term n111 cxceeJing three years. Para 7.0X. of the
l\fanual. cnntains the pn 1ccdurc for renewal uf the term nf the District ( io\'ernmem
Counsel after the expiry 11f 11riginal term. It requires the District Olfo:er at least
thret• m11nths tie1«1re the expiry 11f the term of a District Ciovernment Counsel. to
report l\1 the 1.cgal Rcmc111hra11cer. after C1l11SUl!ing the District Judge and n
C(111sidering the past rec11rd 11f m irk. conduct and age of such District ( io\'ernment
( 'ounsl'l. lfthe (ill\·ernment agrees with the rcrnmmcndation. it may pass an< >rder
re·appllinting him for a pcrhid not exceeding three years .

The stand of the appellants is that. in \'iew of Para 7.06(2). the app1iintment
11f any legal practitiuner as a I>istrict Ciu\'ernment Counsel, dues n1)t automatically E
come hi an end. rather it indicates and elemem uf continuity and that is why Para
7.t l(1( 21 requir~·s the District <>fficcr. at the end 11f period of Dne year h1suhmit a
rep11rt. after cnnsulling the I >istricl .Judge cnncerned. in respect llf the w11rk and
cnnduct 1Jf such District ( i11\·ernment Counsel. to the Legal Remembrancer. in a
f11rm prest·ritied. If the rep1irt in respect 11f w11rk and c11nduct is satisfac\11ry. then
F
such District< i11wrnment <\1unsel shall he furnished with a deed of engagement.
in a fprn1 prescrihed f11r a term 111Jl exceeding three years. As such after the perind
nf1111c year. if the engagement fur a further period upto three years is n11t given. it
amnunts hi a stigma.

On hchalf 11f the appellants. <lllention nf this Court v~:as drawn to a letter G
addressed to the District Magistrate hy Dr. Nepal Singh. M.L.C .. the District
President nf the party then in p1m·er. recommending the names nf 11ther fin\'ern·
ment ( \iunsl'I for renewal/Cxtcnsion llf their term. It was pointeJ 1lUt that. in
respect llf all thnst• pers(1ns. The District Magistrate has recommended h>r
cxtensinn. There is. h1Jwe,·er. n0 material hef11rc us 111 sh1iw that the Distri.:t H
\

. .\SUPREME COllRT R!:PORTS
; ·< .
'..__ _ _ I 1993}35.C.R.
I . . i -,,
..-\ ~t8gistrat~ '"as infh.ienc(d b.J t:ne s;iid lci't~r tn any _1nanncr. ~part fron1 that. thl·
persons so reco1n1nendcct ~the District f\1ag,istrate_ ~e'rt!. not in1pleadect as
respondents to the- \Vrit Appl_ications. As such \VC arc not i~\.'.lincd to go_ into ~is
a.'pcCt

The diffrrent paragraphs of the Manual aforesaid were e~amined in detail in
II
the c~se of Kwnari Shrifeklt11. Vidyarfhi v. State <f U.I', ll 991 I 1 sec 212. in
conn<'Ction'.·\;iti1 an Ord.rd~" F.bruary 6. 1990. issued hy the State 11f U.P.•
. terminating the appoi1ttm<nl:-,.of all Government Counsel (Ch·i!. Criminal anJ
Revenue), in all thedistrict$ofthc Stateof U.P. witll effectfrom Febru;uy 28. 1990
and directing the pr~paration offresh panels: for mak.ing aprll,intmcnts in plal..'.'cs llf--
C ~he.existing incumbents.. \Vhilc quashing such gcn.cr.il t1rdcr it \\'as said:·

.. Vitwcd i~ any 111~1nncr. the impugned circular dated February 6.
I 9'JO isarbitrary. ltterminatcs all theap[ll1intmf'Ots of Government.
Co11n5"' inthedlstriclsof OleS~of Uttar PriJdesh ~yan omnih~
~
order. even thou.,gh these appoin1ments \\·ere all individual. Na
n common reasan applicableto al 1. of then1justifying thc:ir tennination
in one strok_c tlll a n:asi1nahlc ground has been sho\vn_ 1·11e suh1nis-
or
sinn on hi:half of tflc: State lJuar 1•raJesh at the hearing that niany
of then1 '"en: likely hJ he' re-appointed. is hy ilself ample proof of the
fact thal then: \V<.is \~llal OllO-application uf n1ind hl the inJividual
cases bcftln: i:'\suing the general on.ll!'r 1crn1inating all the appoint-
E
- - mcots. This \Vas dune in spite of the clear provisions in the L.R.
manual lying dO\\'O detailed pn1cedurc fl)r apfll.1inunt:"nt. 1cm1ina-
. th1n a1ld rcnC\\'aJ l'ftcnurc and the re4uirl!'mcnt hl lirst cunsiJer the
existing incumtient for renc\\·al of his ti:nurc and to take :i;.tc:ps fllr a
. fresh ~1ppi.1intmcnt in his place only if the existing incurnhent is- nlll
F founJ suilahlc in co1nparisl>O to more suilabJ~ pcrSllOs a\·ailahlc flir
ap(ll1inuncnt at ~he tinlC of rcnc\\'al. In th~ \:ase of cxistin~ appt1in-
tees: a U1.~isil1n has to he first reachc:d ahout thl.!ir non-suitahility fl)r ..
rent"\Val heforc deciding 11.1 take steps tt_1r makin!! fresh appoint-
n1ents h' rcplac~ ·them. None .._,.- these steps \\·ere taken and no
material has ·been produced to sho\v that any cxis_1ing _"incun1bent
\va_, fllUnd unsuitabli: for the oftice on nbje_cth·e assessment beflirc _
- the J1.·i:ision ·to replace ·all by fresh appointi;es \Vas taken. T~c
prescrihed proccduri: laid do\\·n in the L.R. ~lanual \vhich has 10
ftgu._late cxcn:isc of this [lO\\'er Yias hJtally ignored.-

In the present case. il appears to he an adntitted positil'O lhat appl)intmcnts
H
9fthcapp!.•ll-an1s as Assist~nt lli"_trk·t <io,-~mmcnt Counsel {Crintlnal.l is i:!Ovci:_ncd
I IARPAL SINGH v. STA TI: OF lJ.P. [N.P. SING~!. J.1 979

by Secti1ll1 24 uf the Code, as well as different paragrapns of Chapter VII of the A
!Vlanual. It was not disputed on behalfof the State, that appellants shall be deemed
to be Additional Puhlic Prosecutors within t~e meaning of Section 24 of the Code,
although in the urdcr of appointment they have been designated as Assistant
District Government Counsel (Criminal). Th~ procedure prescribed in the Manual
can be obser\'cd and followed as supplemental to the provisions of Section -24 of
the Code. Needless to say that, if there is any conflict, then Section 24 of the Code B
being statutory in nature will override the procedure prescribed in the Manual. The
relevant part pf Secti11n 24 is as such:-

· ~4. Public Prosecutors -(!) For every High Court, the Central
( ;, '' ernmcnt 11r the State Government shall, after consultation with
the l ligh ( \mrt, appoint a Public Prosecutor and may also appoint
c
one or more Additional Public Prosecutors, for conducting in such
Court, any prosecution, appeal or other proceedings on behalf of the
Central Government or State Government, as the case may be.
(2) ...................... .
))
(3) For every district, the State ·Government shall appoint a Public
Prosecutor and may also appoint one or more Additional Public
Prosecutors for the district:

Provided that the Public Prosecutoror Additional Public Prosecutor
appointed for one district may be appointed also to be a Public E
Prosecutor as the case may ·be for another district.

(4) The District Magistrate shall, in consultati1m with the Sessions
Judge. prepare a panel uf names of persons. wh1J arc. in his opinion.
fit tu be appointed as Public Prosecutors or Additional Public F
Prosccutnrs 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)." G

The Code prescribes the procedure for appointment of Public Prosecutor and
Additional Public Prosecutor, for the High Court and the District Courts by the
State Government. The framers of the Code, were conscious of the fact. that the
Public Prosecutor and the Additional Public Prosecutor have an important role,
H
980 SUPRE:\1E COL:R.T REPORTS ( 1993( 3 S.C.R.

A while prosecuting, on behalf of the State, accused persons. who arc alleged to have
committed one or the other offence. Because of that, pm visions have been made
fllr their selection in the Code. It is for the Sessions Judge to asse~ the merit and
professional conduct {Jf the persons recl~n11nended for such appointments and the
District Magistrate to express his opinion on the suitability of persons so rec(1m-
mendcd. from the administrative point of view. Sub-section (:'i) uf Section 24
B provid~s that no person shall be appuinted by the State Glivernment as the Public
Prosecutor or as an Additional Public Prusecutor .. unless his name appears in the
panel of names prepared by the District Magistrate under sub-section i4f. The
aforesaid section requires an effecti\'e and real consultati11n between the Sessi11ns
Judge and the District Magistrate, about the merit and suitability of person tn be
appointed as Public Prosecutoror as an Additional Public Prosecu111r. That is why
c it requires, a panel of names of persons, 10 be prepared by the District Magistrate
in consultation with the Sessions Judge. The same is the position so far the Manual
is concerned. It enumerates in detail, how for purpose of initial appointment.
extension or renewal. the District Judge who is also the Sessilln Judge, is to gi\'e
his estimate of the quality of the work of the Counsel from the judicial standpoint
and the District Officer i.e. the District Magistrate is to report about the suitability,
D
of such person, from administrative point of \'iew.

On behalf of the State, our attention was drawn to the expression .. in his
opinion.. occurring in sub-section (4) of Section 24 of the Code. It was urged that
as the Code \'CSts power in the District Magistrate to consider the suitability of the
E person concerned, for appointment, according to his opinion, there is not much
srnpe of judicial review by Courts, unless a clear case of malice on the part 1if the
District Magistrate is made out. In view of the series of judgments of this Court in
Hariwn Chemicals Ltd. v. Company Law Board. AIR 1%7 SC 295; State qfAssam
, .. Bharat Kala Rlwndar Ltd.1 AIR 1967 SC 1766; Ro/11as I11d11s1ries Ltd.\', S.D.
Aga11rnl, AIR 1969 SC 707; The P11rtabp11r Company Ltd. v. Cane Commissioner
<?f Bilwr, AIR 1970 SC 1896 and M.A. Rasheed,.. The State of Kera/a, AIR 1974
-
SC 2249, it is almost settled that, although power has been vested in a.particular
authl1rity. in subjective tenns, still-judicial review is permissihlc.

In the present case the District & Session Judge strongly recommended
(; extension for the appellants, saying that so far their work and conduct were·
concerned, the same had been approved. But the District Magistrate, simply said
that on the inquiry at his level ..reputation. professional work. behaviour and
conJuct of the appellants as government counsel wa.; not found in accordance with
H the putilic interest". The quality of the Counsel' work has to be judged and assessed ..,._
-
1IARPAL Sl'.'\Gll "· ST.-\"n: OF I '.P. (:'\.I'. Sl:"Gll . .I ( 981

hy the District & Sessi1ms Judge. Thi! District l'vlagistrate is required ILi rnnsider A
Lhe suitability of such person. fnim the administrali \'e point of vil!w. Acc1Jrding tu
us, in view of the strong rec1rnm1endati1>n abLmf the quality of the appellants'
professional work, the District Magistrate should have applied his mind in
rnnsultation witli the Sessions Judge. in respect of each individual case. instead
oi making a gcneral and identical cnmment against all the appellants.
B
Apart from that the mandate of sub-section (4) of Secti1rn 24 is that ··che
District Magistrate shall, in c1msultation with the Sessio,As Judge. prep;•re a panel
or names of persons"". Sub-section (5) of Section 24 prescribes a statutory har that
nu persun shall he appointed by the State Government as the Public Prosecut1lr or
Additional Public Prosei:utor li.1r thc district ··unless his name appears in the panel
of names prepared hy the District Magistrate under sub-section (4f. When sub-
c
section (4) and suh-sectiun (5) of Sectiun 24 of the Code. s('leak atmut preparation
ufa panel.out ufwhich appuintments against the posts of Prosecutoror Additional
Public Prnsecutur have to be made. then the Sessions Judge and the District
Magistrate arc required to cunsull ;rnd discuss the names of the persons 11t to be
included in the panel and to include such names in the panel. The expressions D
""panel of names of persons'",do not mean that some names are to he sugges1cd by
the Sessions Judge and some comments arc to be made, in respect of those names
by the District Magistrate, with1Jut proper consultation and discussion over such
names. The statutory mandate ought to have heen complied with by the District
rvtagistrate and the Sessions Judge in its true spirit. In the facts uflhe present case.
nlJ such pand appears to have been prepared by the District Magistrate in h!m1s E
uf sub-section (4) llf Section 24. As Section 24 of the Code does not speak ahout
extcnsh~n or renewal of the term 1)f the person so appointed, the same procedure.
as pro\'ided under sub-section (4) of Section 24 of the Code, has to be followed.
In the present case the District Magistrate. instead of ha\'ing an effective and real
consultati1m with the District & Sessiu11s Judge. simply made some ,·ague and
general comments against the appellants, which cannot be held to he the cnmpli- F
ance of the requirement of suh-section (4) of Section 24.

In the case of Kwnari S/1rileklta Vicfrarthi (supra), this Court was not
concerned with the question regarding the extension/renewal l1f the terms of the.
Government Counsel. The primary question which was examined by this Court in G
that case. was as w whether it was open to the State Go\'ernment by the impugned
circular dated February 6, 1990. to terminate appointments of all the Government
Counsel in the different districts or the State, by an omnibus order, e\'cn though.
thLlSc appointmems were all indi \'idual. It was held that any such exerdsc of power
by the State Go\'crnment cannot satisfy the tcs1 of Article 14 .:Jf lhe Gmstitution H
'JlQ Sl'l'RE\IE C<Jl.'IH REl'OR rs [l9'l<) 3 S.C.R.

A anJ. as such. was unn:asllnahk and arhltrary. In that con11ecti1m reference was
made to lht• l'vlanual af1iresaid and it was pointed out that the said Manual has laid
dmvn detailed procedure for appnintment. termination and renewal llf the tenure
11f the District Government Counsel. It was pointed out, that different paragraphs
'if the Manual require. tirst lo rnnsiJer the existing incumbents for extension and
r~·ncwal llf their tenure anJ hl lake s1eps f11r fresh appuintment in their place. if the
n existing incumhcnts were not found suilahle in comparison to more suitable
persons a\'ailable fnr appllinlment at the time M. the renewal.

As already mentilmed above. Sectinn 24 of the Code does not speak about
the extension ur renewal of the term pf the Public Prosccutoror Additional Puhlic
Prosecutor. But after the expiry uf the term of the appointment or persons
c concerned. it requires the same statulilry exercise, in which eitherncw persons are
app11intcd or those who have heen working as Public Prosecutor or Additional
l'uhlic J>rnsecutnr. arc again appDinted hy the State Government, for a fresh term.
The prm:edure prescritied in the l'vtanual - to the extent - it is not in con!lict with
the provisions 11f Section 2.+. shall he deemed to be supplementing the statutory
D provisillllS. But merely because there is a provision for extension or renewal of the
term, the same cannot he claimed as a matter of right.

It is true that none of the appellants can claim. as a matter of right, that their
terms sh1)uld have hcen extended or that they shnuld be appointed against the
existing vacancies. but, certainly, they can make a grievance that either they have
E not received the fair treatment hy the appointing authority or that the procedure
prescribed in the Code and in the Manual aforesaid. have not hecn followed. While
exercising the pu\verofjudicial re\'icw e\'cn in respect of appointment of members
11l the legal profession as Distrh:t G1i,·ernment Counsel, the Court can examine
whett1er there was any infirmity in the "decision making process." Of course,
while d1)ing Sil. the Court cannot suhstitute its own judgment O\'er the final
F
decisinn taken in respect llf sclecth'n of persons for those posts. It was said in the
case ,,f CIIiefCunstahle <ft Ile North \Fales Police v. Evans. ( l 982) 3 All E.R. 141 :-

"The purp11se 1>fjudicial review is to ensure that the individual
receives fair treatment. and not to ensure that the authority, after
G acc11rding fair treatment. reaches on a matter which it is authorised
or enjoined by law to de1.:ide for itself a conclusion which is correct
in the eyes of the court."

In the facts of the present case, the pmcedurc prescribed by Section 24 of the
H C\1dc have nlH been followed by the District Magistrate. There is nothing on the
I L\RJ' . \L 'ii\'< ill 1·. STAil~ OF I '.P. JN.P. SINGH. JI 983

rL'Cl1rds l1f the case tti slllJ\\' tll~1t any panel. as rl'quircd by sub-section (4) of Section A

r 2-L was preparcJ by till' District f\lagistrate in Clrnsultation with the District &
Sessilins Judgl'. The District Magistrntc simply made some general comment in
respect of the appellants. \\'hen the District & Sessions Judge had put them in List
'A· llf his recommcndatinn. Acrnrding tll us. this shall not amount to either the
compliance uf suh-secthrn 14) lit' Section 24 of the Code or Para 7.06(2) of the
Manual. It appears there has been ill' effective or real consultation between the U
Sessions Judge and the District Magistrate for preparation llf the panel, as
contemplated by suh-sectillll (4) of Section 24 uf the Cl)dc.

The members of the legal profcssillll arc required to maintain high standard
nf legal ethics and dignity, if profession. They arc not supposed to solicit work or
seek mandamus frnm cnurts in matters of professional engagements. We have
c
been persuaded to interfere in these matters to a limited extent. as we arc satisfied
that there is patent infractinn nf thl' statutory pmvisions nfthe Cude. As we are of
the ,·icw that the District Magistrate has not performed his statutory duty as
enjoined by law. the appeals or the appellai1ts have to be allowed.
[)

In the result. the appeals arc alhl\vcd. We direct the District l\fagistrate,
Muradabad. tu perform his statutory duty afresh. in accordance with the require-
ment of Section 24 of the Cnde rcaJ '' ith the relevant paragraphs llf Chapter VII
of the Manual. which arc thll il1CllllSistc1H with Section 24 of the Code. so far the
appellants are cnncerned. if the vacancies arc still there. The necessary steps shall E
be taken preferably within four months from the date of this judgment. The State
Government shall thereafter perform its part in accordance with Section 24 and
different paragraphs of the Manual \\·hich are applicable in the facts and circum-
stance~ llfthc case. We make it clear tllat we are nut expressing any l)piniun on the

merit of the claim of the appellants "' get extenshm nr appl1intment against the F
posts of Assistant District Gln·ernml'1lt Counsel (Criminal). There will he nu order
as tll CllSIS.

CIV!LAPPFAUi NOS. 386 & 387OF1993

G
So far the appellants M these appeals arc concerned. their names were put
under List· B' by the District & Sessions Judge in his recommendation saying that
they were ··average lawyers··. Their case stands nn a different footing. The District
& Sessions Judge. whl1 is required tu express his opinion lJll the merit and the
conduct of the pcrs11ns recommended fur appnintment or extension of the pcrimt H
-·-.~--;,.·,,,---
.-... ..'-,
~

•J;~ :Sl'l'RE'.\1EC01-.RT REJ'(>RTS
• L .: : 119•JJ!3S.C.R .
' ·,·\~ -~-', .' \ .::-.
' .. .

A ;.1s DistrictGoV\:n1n1cnt Cou~n. has c.-xpn:ssl·d th!.! llpininn th;.n e1ppc.•1lants arc
''aVerage la,,-yerS~. ~10d h;I~ put 1c1n in 1.ist: H~~ l~\lthcr\\'llHfs. ncitht.•r the [1istrict
• &. Se~ions J.lldgc has n:c~1rl1n1 ru.lc<l th~ caS~ \)f the aPPc11ants ,1f these appeals for
extcn:'\h1n n,>r the IJist'rict 't..·1a• istf-Jti:: ·fhi:ir cdsc ·can1l~lt ti~ treated at par v.·ith the
apPclla~ts()f the l1thciapP"'als. i11' such; ~itllatf,111. "'' !'scful pufPosc \\'ill he scrYcJ
by directing the Oist~i-ct Magistrate to perfonn his st;futnry du_ty. as rc4uircd hy
II sub-sccd,1n (4) ,,f S1:-cti,1n 24 of the Code c:igain. e\·cn in respect' ,f these ap[)\!llants.
Accoidingty~ mesc-appi.!als afi: disnUsscd. 'fhi:ri: \\"ill be 'nO urdcrs as ltJ costs.

., \'.PJ{. - ,. , C.A. Nos. 722 anJ 72.V'-!3 allowcJ .
C.A. N•>S. 38(1 anJ 387N3 dismissed.

; '