Supreme Court of India
KUMARI SHRILEKHA VIDYARTHI ETC. ETCversusSTATE OF U.P. AND ORS.
- Citation
- 1990 INSC 294
- Decided
- 20 September 1990
- Disposal
- Appeal(s) allowed
- Bench
- S VERMA
Holding
The circular is arbitrary, violates Article 14 and is quashed, restoring the status quo ante.
Summary
The petitioners, appointed as Government Counsel in Uttar Pradesh, challenged a circular dated 6‑Feb‑1990 that terminated all such appointments across the state and ordered fresh panels, irrespective of existing tenures. The State argued the appointments were purely contractual and could be ended at will without cause. The Supreme Court examined the nature of the Government Counsel position, finding it to be a public office with a public element, governed by the Legal Remembrancer's Manual and statutory provisions, and therefore subject to Article 14. The Court held that the circular was arbitrary, lacked any discernible principle or reason, and violated the constitutional requirement of fairness. Consequently, the circular was quashed and the status quo ante as of 28‑Feb‑1990 was restored. The Court also affirmed that even contractual state actions must satisfy Article 14 and are amenable to judicial review.
Issues considered
- The circular terminating all Government Counsel appointments is amenable to judicial review.
- Whether the circular violates Article 14 of the Constitution as arbitrary or unreasonable.
- Whether the relationship of Government Counsel constitutes a public office attracting Article 14.
- Whether the power to terminate the appointment ‘without assigning any cause’ is arbitrary.
Legislation cited
- Code of Criminal Procedure, 1973s. Section 24, s. Section 321
- Constitution of Indias. Article 14, s. Article 226, s. Article 32
Subjects
Article 14ArbitrarinessGovernment CounselPublic officeJudicial reviewContractual appointmentState actionLegal Remembrancer's ManualTermination of appointmentRule of law
Judgment
KUMAR! SHRILEKHA VtDY ARTHI ETC. ETC, A
v.
STATE OF U.P. AND ORS.
SEPTEMBER 20, 1990
[J.S. VERMA AND R.M. SAHA!, jJ.) ·a
Constitution of India, 1950: Article 14-Requirement of fairness
in State action-Arbitrariness very negation of rule of law-Contractual
obligation cannot divest state of fairness in its action.
The writ petitioners/appellants had been appointed as Govern• C
ment Counsel (Civii, Criminal, Revenue) by the State of U.P. By its
circular dated 6.2.1990 the State terminated the appointment of ail
Government Counsel with effect from 28.2.1990 irrespective of the fad
whether the term of the incumbent had expired or Was subsisting. At
the s~me time the Government directed preparation of fresh panels to
make appointments in place of existing incumbents. The appellants b
chaiienged the validity of this· State action, which Was rejected by the
High Court.
Before this Court it was contended inter alia on behalf of the
petitioners/appellants that the relationship of the Government Counsel
with the Government was not mereJy one of client and counsei as in the E
case of a private client, but one of status in the nature of public employ•
ment or appointment to a 'public office' so that termination of the
appointment of a Government Counsel couid not be equated with the
termination by a private litigant of his Counsel's engagement, which
was purely contractual, without any public element attaching to it.
, F
On behaif of the State it was urged that: (i) the relationship of the
appointees to these offices of Government Counsel in the districts was
purely contractual dependin,ll on the terms of the contract and was in
the nature of an engagement of a Counsel by a private party who could
be changed at any time at the will of the litigant, with there being no
right in the counsel to insist on continuance of the engagement; (ii) there d
was. no element of public employment in such appointments and the
provisions in the Legal Remembrancer's Manual and Section 24 of the
Code of Criminal Procedure were merely to provide for making a suit•
able choice; (iii) the appointment of a District Government Counsel was
only professional engagement terminable at will on ~ither side and not
appointment to a post under the Government; and the Governm·eni had H
625
626 SUPREME COURT REPORTS [1990] Supp. I S.C.R.
A the power to terminate the appointment at any time 'without assigning
any cause' and hence this circular did not suffer from the vice of
arbitrariness.
Allowing the writ petitions and the appeals, this Court, •
B
HELD: (I) The provisions in the Legal Remembrancer's Manual
clearly show that the Government Counsel in the districts are treated as
law Officers of the State who are holders of an 'office' or 'post'. These
provisions further indicate that the appointment and engagement of
District Government Counsel is not the same as that by a private liti- +
gant of his counsel and there is obviously an element of continuity of the
c appointment unless the appointee is found to be unsuitable either by his
own work, conduct or age or in comparison to any more s.uitable candi-
date available at the place of appointment.
(2) All Government Counsel are paid remuneration out of the
public exchequer and there is a clear public element attaching to the
D
'office' or 'post'.
(3) Clause 3 of para 7.06 of the L.R: Manual which enables the
Government to terminate the appointment 'at any time without assign-
ing any cause' merely means that the termination may be made even
during the subsistence of the term of appointment, and the expression
E
'without assigning any cause' means without communicating any cause
to the appointee whose appointment is tertitlnated.
(4) The non-assigning of reasons or the non-communication
thereof may be based on public policy, but termination of an appoint- I
ment without the existence of any cogent reason in furtherance of the r
F object for which the power is given would be arbitrary and, therefore,
against public policy.
Liberty Oil Mills v. Union of India, [1984] 3 SCC 465, referred
to.
G (5) In the case of Public Prosecutors, the public element flowing
from statutory provisions in the Code of Criminal Procedure, undoub-
tedly, invest the Public Prosecutors with the attribute of holder of a
public office 'which cannot be whittled down by the assertion that their'
engagement is purely professional between a client and his lawyer with
no public element attaching to it.
H
KUMAR! SHRILEKHA v. STATE OF U.P. 627
M ahadeo v. Shantibhai, [1969 I 2 SCC 422; Mundrika Prasad A
Sinha v. State of Bihar, [1980] l S.C.R. 759; Mukul Dalal and Others v.
Union of India and Others, [1988] 3 SCC 144 and Ma/loch v. Aberdeen
Corporation, [1971] 2 All ER 1278, referred to.
(6) The presence of public element attached to the 'office' or
'post' of District Government Counsel of every category covered by the B
impugned circular is sufficient to attract Article 14 of the Constitution
and bring the question of validity of the impugned circular within the
scope of judicial review.
(7) The scope of judicial review permissible in the present case
does not require any elaborate consideration since even the minimum
permitted scope of judicial review on the ground of arbitrariness or c
unreasonableness or irrationality once Article 14 is attracted, is suffi-
cient to invalidate ufe impugned ci~~ular.
(8) Even otherwise and sans the public element so obvious in
these appointments, the appointme~t and its concomitants viewed as D
purely contractual matters after the appointment is made, also attract
Article 14 and exclude arbitrariness permitting judicial review of the
impugned State action.
(9) The personality of the State, requmng regulation of its
conduct in all spheres by requirements of Article 14, does not undergo E
such a radical change after the making of a contract ·merely because
some contractual rights accrue to the other party in addition. It is not as
if the requirements of Article 14 and contractual obligations are alien
concepts, whiCh cannot co-exist.
(IO) The scope and permissible grounds of judicial review in such F
matters, and the relief which may be available are different matters but
that does not justify the view of its total exclusion. This is more so when
the modern trend is also to examine the unreasonableness of a term in
such contracts where the bargaining power is unequal so that these are
not negotiated contracts but standard form contracts . between
unequals. G
(11) To the extent challenge is made on the ground of violation of
Article 14 by alleging that the impugned act is arbitrary, unfair or
unreasonable, the fact that the dispute also falls within the domain of ·
~ contractual obligations would not relieve the State of its obligation to
comply with the basic requirements ()f Article 14. . H
628 SUPREME COURT REPORTS [ 1990] Supp. I S.C.R.
(12) It is significant to note that emphasis now is on review ability
A
of every State action because it stems not from the nature of function,
but from the public nature of the body exercising that function; and all
powers possessed by a public authority, howsoever conferred, are
possessed 'solely in order thatit may use them for the public good'.
(\
B Jones v. Swansea City Counsel, [1990] l W.L.R. 54, referred to.
(13) It can no longer be doubted at this point of time that Article
14 of the Constitution of India applies also to matters of governmental
policy and if the policy or any action of the Government, even in con-
tractual matters, fails to satisfy the test of reasonableness, it would be
unconstitutional.
c
Ramana Dayaram Shetty v. The International Airport Authority
of India, [1979] 3 SCR 1014; Kasturi Lal Lakshmi Reddy v. State of
Jammu and Kashmir, [1980] 3 SCR 1338 and Col. A.S. Sangwan v.
Union of India, [1980] Supp. SCC 559, referred to.
D
(14) The basic requirement of Article 14 is fairness in action by '
the State and it is difficult to accept that the State can be permitted to '·
act otherwise in any field of its activity, irrespective of the nature of its
function, when it has the uppermost duty to be governed by the rule of
law. Non-arbitrariness, in substance, is only fair play in action. This
E obvious requirement· must be satisfied by every action of the State or its
instrumentality in order to satisfy the test of validity.
M/s Dwarkadas Marfatia and Sons v. Board of Trustees of the
Port of Bombay, [1989) 3 SCC 293 and Mahabir Auto Stores & Ors. v.
F
.
Indian Oil Corporation, J. T. 1990 (1) SC 363.
.
r
(IS) There is a presumption of validity of the State action and the
burden is on the person who alleges violation of Article 14 to prove the
assertion. However, where no plausible reason or principle is ind_icated
nor is it discernible and the State action, therefore, appears to be ex facie
arbitrary, the initial burden to prove the arbitrariness is discharged
G shifting onus on the State to justify its action as fair and reasonable.
(16) The wisdom of the policy or the lack of it or the desirability ·
of a better alternative is not within the permissible scope of judicial
review in such cases. It is not for the courts to recast the policy or to
substitute it with another which is considered to be more appropriate, \..
H once the attack on the ground of arbitrariness is successfully reP.,lled by
klJMARI SHR!LEKliA v. STATE OF U.I>. 629
showing that the act which was done was fair and reasonable in the tads
A
and circumstances of the case.
Council of Civil Service Union v. Minister for the Civil Service,
[1984] 3 All E,R, 935.
(17) Arbitrariness is the very uegatioh of the rule oflaw. Satisfac• B
tlon of this basic test in every Slate action is sine qua non to Its valldit~
and in this respect, the State cannot claim comparison with a private
individual even in the fi°eld of contract.
• (18) Every State action must he informed by reason and It
follows, that an act uninformed by reason, is arbitrary. Rule of law C
contemplates governance by laws and not by humour, whims or
caprices of the men to whom the governance is entrusted for the time
being.
(19) Irrespective of the nature of appointment of the Government
Counsel in the dis.tricts in the State of l.P and the security of tenure D
being minimal as claimed by ihe State, the impugned circular, in order
to survive, must withstand the attack of arbitrariness and he supported
as an informed decision which is reasonable.
S. G. Jaisinghani v. Union of India. [1967] 2 SCR 703.
E
(20) In the present case, the initial burden on the petitioners
appellants has been discharged by showing that there is no discernible
principle for the impugned action at the district level throughout the
State of U.P. since there is nothing in the circular to indicate that such a .
, sweeping action for all districts throughout the State was. necessary
which made it reasonable to change all Government Counsel in the F
districts throughout the State, even those whose tenure in office had not
expired.
(21) Non-application of mind to individual cases before issuing a
general circular terminating all such appointments throughout the
State is itself eloquent of the arbitrariness writ large on the face of the G
circular.
John Wilkes's case [1770] 4 Burr.. 2528.
(22) Arbitrariness is writ large in the impugned circular issued by
the State of Uttar Pradesh. It gives the impression that this action was H
630 SUPREME COURT REPORTS [1990] Supp. 1 S.C.R. l'
taken under the mistaken belief of applicability of "spoils system"
A
under our Constitution and the cavalier fashion in which the action has
been taken gives it the colour of treating the posts ofD.G.Cs. as.bounty
to be distributed by the appointing authority at its sweet will. Nothing
worthwhile has been shown on behalf of the State of U.P. to support the
impugned action as reasonable and non-arbitrary.
B
ORIGINAL JURISDICTION: Writ Petition No. 706 of 1990.
(Under Article 32 of the Constitution oflnclia).
Dr. L.M. Singhvi, Dr. Y.S. Chitale, R.K. Garg, R.N.
Trivedi; Addi. Advocate General for the State of U.P., Mrs. Swaran
c Mahajan, Mrs. Geetanjali Mohan, Ms. Anuradha Mahajan, Sunil
Gupta, R. Venkataramani, S.M. Garg, Suresti Harkauli, Sushi!
Harkauli, Sunil Gupta, A.S. Pundir, Shrish Kumar Mis,ra, Mahesh
Shrivastava, H.D. Pathak, Vishnu Mathur and Mrs. Shobha Dikshit
for the appearing parties.
D
The Judgment of the Court was delivered by
VERMA, J. This judgment disposes of a bunch of matters com·
prising of some writ petitions under Article 3:2 .of the Constitution of
India and special leave petitions under Article 136 of the Constitution
E of India, all of which involve for decisjon certain common questions.
The special leave petitions are directed against a common judgment of
the Allahabad High Court dismissing some writ petitions in which the
same questions were raised. In view of the decision of the High Court
rejecting those contentions, the writ petitions were filed in this Court l
directly for the same purpose.
F
By one stroke, seemingly resorting to the Spoils System alien to
our constitutional scheme, the Government of State ,of Uttar Pradesh
has terminated by a general order the appointments of all Government
Counsel (Civil, Criminal, Revenue) in all the districts of the State of
U .P. w.e.f. 26.2.1990 and directed preperation of fresh panels to make
G appointments in place of the existing incumbents. This has been done
by Circular G.O. No. D-284-Seven-Law-Ministry dated 6.2.1990,
terminating all the existing appointments w.e.f. 28.2.1990, irrespective
of the fact whether the term of the incumbent had expired or was
subsisting. The validity of this State action is challenged in these
matters after the challenge has been rejected by the Allahabad High
H Court. They have all been heard together since the common question
'
KUMAR! SHRILEKHA v. STATE OF U.P. !VERMA, l.] 631
in all of them is the validity of the Circular G.O. No. D-284-Seven- A
Law-Ministry dated 6.2.1990 issued by the Government of State of
U ttar Pradesh.
Leave is granted in the Special Leave Petitions and the appeals
are also heard on merits along with the Writ Petitions. ·
B
Broadly, two questions arise for decision by us in this bunch of
matters. These are: Is the impugned circular amenable to judicial
review?; and if so, is it liable to be quashed as violative of Article 14 of
the Constitution of India, being arbitrary?
The challenge in all these matters is to validity of G.O. No.
D-284-Seven-Law-Ministry dated 6th February, 1990, from Shri A.K.
c
l
Singh, Joint Legal Remembrancer, Justice (Law Ministry) Section,
Government of Uttar Pradesh, to all the District Magistrates of Uttar
Pradesh with copy to all the District Judges of the State for informa-
tion and necessary action. The main question for decision in these
matters being the validity of this circular, it would be appropriate to D
1 quote the same in extenso. It reads as under:
"Subject:RENEWAL OF TENURE OF ALL THE
EXISTING GOVERNMENT COUNSEL, CALLING
OF NEW PANELS FOR NEW APPOINTMENT.
E
xxxx
I have been directed to inform you on the subject
mentioned above that the Administration has taken a deci-
sion to extend the tenure of all the Government Counsel,
who are presently working, till 28th February, 1990 only F
and to immediately receive new panels from the District
Magistrates for new appointments in their places.
2. I, therefore, have been directed to state that all the
Governmen't Counsel, presently engaged for the work of
Civil/Revenue/Criminal (including Anti-Dacoity) and G
Urban Ceiling may be permitted to work till 28.2.1990 only
and for appointments in their place, Administration may
send the new panels, after preparing.the same in following
•'
-
• manner:-
' !. Separate single panal in each of the Civil side, Revenue H
41
632 SUPREME COURT REPORTS IIQ9,P,J ~µpp, 1 PC:-!t
A side, Criminal side (including Anti-Dacoity) and Urban
ceiling siqe fixed for 12 qistricts, and separate sing!~
p~nel in each of the courts, functioning at District anq
Tehsil Headquarters, may be . prepar~cl, lt may Pe
enlisted therein the names of the wPrk zone, number pf
courts related to it, the number of san9\ioned posts for
B Government Counsel and recommengeq names of the
Counsel in terms of their seniprity.
2. It may be clearly mentioned in the panel which cPu!lsel i
belong to Scheduled Caste, Scheduled Tribes, llack-
ward Caste and Minority group.
c 3. The panels prepared for civil, revenue and urban ceiling (
side may contain the recommendations of names only
three times of the presently sanctioned posts.
4. In the criminal side, five times of the names of the pre-
D sent sanctioned posts may be recommended.
5. The attested copies of Bio-Data of the Cgunsel recPID-
mended, attested details of tpeir work <1nring last two
years1 certificate of registration as an Agvocaie, certifi-
cate of birth and the attested copies of certificates of
E educational qualifications may also be sent.
6. The names of any s11c!i cmmsel, who ha~ practice-
experience for \ess than 7 years, or w!ig flas more than
60 years of age as on 1. 1. 1990, or the person who is l
already working at a salaried Goveftlment or non-
F Governmental posts, a full-time )ect\lrN in a college,
Notary, Marriage Officer, Executive Qazi or State, may
not be included in the panels, However, on resignation
from the present post, they can be incl\lded in the panel.
7. For preparation of new panel, a general notice which
G enlists the application, age, conditions of appointment
and the last" date for submission of Bio-Data, may be ~
prepared. Tl)is notice may be put on the Notice Boards •;t:;
of the Local Bar Associations, and in the offices of Dis-
trict Magistrate, J)istrict Judge, Zonal Commissioner, •
-
.
.,
S.D.M. and Munsif Magistrate.
H
KUMAR! SHRILEKHA v. STATE OF U.P. !VERMA, J.l 633
8. It will be a condition for appointment as a Government A
Counsel that he will not be permHted to do private
practice. He will be entitled to plead, with permjssiµn
from the Administration, only tqe cases of St~te
Government and Central Government, State Company
Council, Local Bodies, Autonomous Institution and
Authorities. He will be paid only the mont!Jly remu- B
neration fixed by the Administration and no fee will be
paid according to the valuation of the case/appeal. No
extra fee will also be paid for any other work/consulta-
tion. It may also be clarified that appointment of ~
Government Counsel will be different from the Goverp.
ment employees arn;I no facilities t9 Goverp111eqt
employees will be applicable to them. The appqin\01ent C
of Government Counsel will be done in the form of
business engagement and the State Government will be
entitled to terminate engagement at any time, without
giving reasons for it.
D
3, The Bio-Data and other desired papers, if received from
the counsel \Vithin the prescribed date, may be examined
minutely, as a ,special drive and after getting approval from
the District Judge/Munsif Magistrate/SOM, as the case
may be, the names may be recommepded in the panel as
per seni9rity positiqn. The details qf las\ two years work, E .
along with the attested copies o·f the certificates and infor-
mation desired in the enclosed format,'Ka' and 'Kha' may
be sent to the Administration along with the panel.
4. I have also been directed to state that the appointments
made on or after January, 1990, shall not be affected by the F
above mentioned policy decision and the same shall con-
tinue for the prescribed period.
5. I have also been directed tq clarify that the panels
received prior to release of this Government Order, on the
basis of which, no appointments or. renewal has been made G
or which are still pending, may pe understood as cancelled.
6. l have also been directed to request you that the new
panels may be prepared in ·accordance with the above
direction on top priority basis, 'and the same may be
ensured. to be_ sent to the undersigned in a confidential H
634 SUPREME COURT REPORTS [1990] Supp. 1 S.C.R.
envelope through a special messanger by 25th February,
A
1990.
xxxx xxx
sd/-
(A.K. Singh)
· Joint Legal Remembrancer"
B
By the above-quoted circular letter dated 6.2.1990, the decision.
of the State Government to terminate the engagement of all the
Government Counsel engaged throughout the State of U.P. for civil/
revenue/criminal (including anti-dacoity) and urban ceiling work on
and from 28.2. 1990 and to make appointments in their place.on the rasis
of new panel prepared for the purpose was communicated to all the
c District Magistrates in the State. Admittedly, this circular was made
applicable to all the Government Counsel throughout the State at the
district level, howsoever designated such as district Government
Counsel, Additional District Government Counsel, etc. There Is no
dispute that the circular related to and applied equally to all the
D Government Counsel throughout the State irrespective of their tenure
whose appointments were terminated w.e.f. 28.2.1990 for being ,.
replaced by new appointees. The circular applled equally to not only
those Government Counsel whose tenure had already expired or
whose tenure was to expire before 28.2.1990, but also to those whose
tenure, as a result of their earlier appointment, was to extend beyond
E 28.2.1990, as well as those who were entitled to be considered for
renewal of the tenure on expiry of their earlier tenure. The Challenge
in these matters is not only by some individuals who were adversely
affected by the said circular but also by Association of District
Government Counsel. Since the impact of the _circular is on all l
Government Counsel engaged at the district level throughout the
F State, the challenge is really in representative capacity on behalf of all
of them and this is how the challenge has been met on behalf of the
State of U .P. in reply. It is common ground that the decision of these
matters will govern the appointment of all Government_ Counsel
throughout the State of U .P.at the district level, in all branches, irrespec-
tive of the name or designation given to the appointment such as
G District Government Counsel,. Additional District Government
Counsel, etc.
Several arguments were advanced by the learned counsel on both
sides relating to the nature of these appointments about which there is
a serious contest between the parties. In the present case, it is not
H necessary for us to consider at length the exact nature of these appoint-
KUMAR! SHRILEKHA v. STATE OF U.P. {VERMA, J.] 635
ments which is material only for indicating the extent of security of
A
tenure of the appointee to these offices since in our opinion the main
attack to the impugned circular on the ground of arbitrariness can be
upheld even assuming the security of tenure of the appointees to be
minimal as claimed for and on behalf of the State of U.P. We shall,
therefore, only refer to the rival contentions regarding the nature of
appointments and then proceed on the basis of the minimum status B
attaching to these appointments to examine whether the ground of
arbitrariness is available and vitiates the circulaL
According to the learned Additional Advocate General of the
State of U.P., the relationship of the appointees to these offices of
Government Counsel in the districts is purely contractual depending C
on the terms of the contract and is in the nature of an engagement of a
Counsel by a private party who can be changed at any time at the will
of the litigant, with there being no right in the Counsel to insist on
• continuance of the engagement. The learned Additional Advocate
General contended that for this reason, the relationship being purely
contractual, which cannot be continued against the will of either party, D
there is no scope for the argument ·that the State does not have the
. right to change the Government Counsel at its will. It is common
ground that the appointment, termination and renewal of tenure of all
. Government Counsel in the districts is governed by certain provisions
contained in the Legal Remembrancer's Manual, in addition to Sec-
tion 24 of the Code of Criminal Procedure, 1973,.applicable in the case E
of public prosecutors. The learned Additional Advocate General did
not dispute tliat if Article 14 of the Constitution of India is.attracted to
this case like all State actions, the impugned circular would be liable to
be quashed if it suffers from the vice of'arbitrariness. However, his
argument is that there is no such vice. In the ultimate analysis, it is the
challenge of arbitrariness which the circular must withstand in order to F
survive. This really is the main point involved for decision by us in the
present case.
The nature of appointment of the Government Counsel in the
districts on the civil, criminal and revenue sides was hotly debated
. during the hearing. It was urged on behalf of the petitioners/appellants G
that the relationship of the Government Counsel with the Government
is not merely one of client and counsel as in the case of a private client,
·- but one of° status in the nature of public employment or appointment to
a 'public office' so that termination of the appointment of a Govern-
ment Counsel cannot be equated with the termination by a private
litigimt of his Counsel's engagement, which is purely contractual, with- H
636 SUPREME COURT REPORTS [1990] Supp. I S.C.R.
out any public element attaching to it. It was urged that appointment
A
of public prosecutors has a statutory status also in view of such
appointments being required to be made in accordance with Section 24
of the Code of Criminal Procedure, 1973. Reliance was also placed on
certain provisions of the Legal Remembrancer's Manual, which admit-
tedly govern and regulate the appointment of all Government Counsel
B in the districts as well as the termination of their appointment and
renewal of their tenures. It was contended that the relationship bet-
ween the Government and the Government Counsel is, therefore, not
purely contractual in nature as in the case of a private litigant and his
counsel. An attempt was also made to urge that the appointment of
Government Counsel is in the nature of a public employment with the
attendant security of tenure of office and the necessary concomitants
c attaching to it. On the other hand, the learned Additional Advocate
General appearing for the State of U.P. contended that the relation-
ship between the Government and the Government Counsel is purely
contractual like that of a private litigant and his counsel which enables
the Government to change its counsel at any time as may be done by a
D private litigant in the event of loss of confidence between them. He
contended that there is no element of public employment in such
appointinents and the provisions in the Legal Remembrancer's Manual
and Section 24 of the Code of Criminal Procedure are merely to pro-
vide for making a suitable choice. We shall briefly refer to some provi-
sions which admittedly regulate and govern such appointments, termi-
E nation and renewal of tenure of the ap~ointees.
Chapter I of the Legal Remembrancer's Manual, 1975 Ed., con-'
ta ins the interpretations and Para 1.0 l says that the L. R. Manual is the
authoritative compilation of the Government orders and instructions
for the conduct of legal affairs of the State Gov~rnment. Para 1.06
F enumerates the Law Officers of the Government which includes the
District Government Counsel (Civil, Revenue, Criminal) along with
many others such as Judicial Secretary and Legislative Secretary. it is
obvious that all of them including D.G.Cs. are described as holders of
some 'office' of the State Govt. Chapter VII contains the necessary
provisions relating to District Government Counsel. Part A therein
G deals with appointment and conditions of engagement of the District
Government Counsel. Para 7.02 deals with the power of Government
to appoint Government Counsel in the districts which requires the
Government to appoint District Government Counsel (Civil,
Revenue, Criminal) and also, wherever necessary, in the interest of
efficient and expeditious disposal of business, to appoint Additional
H or/and Assistant District Government Counsel to assist the District
KUMARI SHRILEKHA '· STATE OF U.P. [VERMA. J.[ 637
Government Counsel (Criminal) or (Civil) in discharge of his duties:
Subordinate District Government Counsel for the conduct of civil A
cases in outlying towns of a district; and Assistant District Govern-
ment Counsel in outlying towns of the district for the conduct of cri-
minal or civil cases or both. Para 7.03 provides for applications and
qualifications for appointment to these offices or posts. The District
Officer is reg uired to consider all the applications received in consulta- B
tion with the District Judge, giving due weight to the claim of the
existing incumbents, if any, and to submit in order of preference the
names of legal practitioners, together with the opinion of the District
Judge on the suitability and merits of each candidate. The process of
selection expressly involves the District Judge and gives due weight to
his opinion for the obvious reason that. the District Judge is expected
to know best the comparative merits of the candidates for such c
appointments. Para 7.04 requires the Legal Remembrancer to submit
the recommendations of the District Officer along with his own
opinion for the orders of the Government. Para 7.06 provides for
appointment and renewal, para 7.08 for renewal of term and para 7.09
for maintenance of character roll of the appointees. Para 7.07 forbids b
the D.G.C. so long as he holds the 'post' from participating in political
,activity like all other Government officers and unlike a lawyer engaged
by a private party. These provisions read as under:
"7.06. Appointment and renewal-( 1) The legal practi~
tioner finally selected by the Government may be appoin- 'E
ted District Government Counsel for one. year from lhc
date of his taking over charge.
(2) At the end of the aforesaid period, the Distrid
Officer after consulting the District Judge shali submii a
report on his work and conduct to the Legai Rcmem- F
brancer together with the statement of work done in Form
No. 9. Should his work or conduct be found to be
unsatisfactory the matter shall be reported to the Goverh-
ment for orders. If the report in respect of his work and
conduct is satisfactory, he may be furnished with a deed of
engagement in form No. I for a term not exceeding three G
years. On his first engagement a copy of Form No. 2 shali
be supplied to him and he shall complete and return it hi
the Legal Remembrancer for record .
•
(3). The appointment of any legal practltidhet tis ti
District Government Counsel is only professional engage- fl:
638 SUPREME COURT REPORTS tl990) Supp, 1 S.C.R. ·.,
ment terminable at will on eiiher side and is not appoint·
A
ment to a post under the Government. Accordingly the
Government reserves the power 'to terminate the appoint-
ment of any District Government Counsel at any time with- ..
out assigning any cause.
B 7.07 Political Activity-The District Government
Counsel shall not participate in political activities so long
they work as such; otherwise they shall incur a disqualifica-
tion to hold the post.
..
I
7.08 Renewal of term- (1) at least three months
before the expiry of the term of a District Government
c Counsel, the District Officer shall after consulting the
District Judge and considering his past record of work,
conduct and age, report to the Legal Remembrancer,
together with the statement of work done by him in Form
No. 9 whether in his opinion the term of appointment of
D such counsel should be renewed or not. A copy of the
opinion of the District Judge should also be sent along with
the recommendations of the District Officer. "
(2) Where recommendation for the extension of the
term of a District Government Counsel is made for a
specified period only, the reasons therefore shall also be
stated by the District Officer.
(3) While forwarding his recommendation for rene-
wal of the term of a District Government Counsel- ~
F (i) the District Judge shall give an estimate of the
quality of the Counsels's work from the Judicial stand-
point, keeping in view the different aspects of a
lawyer's capacity as it is manifested before him in con-
ducting State cases, and specially his professional
conduct;
G
(ii) the District Officer shall give his report about the
suitability of the District Government Counsel from
the administrative point of view, his public reputation
in general, his character, integrity and professional
conduct.
H
KUMAR! SHRILEKHA v. STATE OF U.P. [VERMA, J.). .639
(4) If the Government agrees with the recommenda-
tions of the District Officer for the renewal of the term Of · A
the Government Counsel, it may pass orders for re-
appointing him for a period not exceeding three years.
(5) If the Government decides not to re-appoint a
Government Counsel, the Legal Remembrancer may call a.
upon the District Officer to forward fresh recommenda-
tions in the manner laid down in para 7 .03.
(6) The procedure prescribed in this para shall be
followed on the expiry of every successive period of
renewed appointment of a District Government Counsel.
c
Note-The renewal beyond 60 years of age shall
depend upon continuous good work, sound integrity and
physical fitness of the Counsel.
7.09. Character roll-(l) The District Officer and D
the District Judge shall, before the end of every year and
also while leaving the district on transfer, place on record
his opinion on the capacity and work of the District
Government Counsel. The District Judge shall before
recording such opinion obtain a report about the work and
conduct of the District Government Counsel from the pre- E
siding officers of the courts, where they are generally
required to practise. Similarly, the District Officer shall
before recording such opinion obtain a report from the
Superintendent of Police regarding the counsel's capacity
for prosecution of cases and assistance rendered to the
invesilgating agency. The record, which shall be confiden- F
tial, siiail be maintained by the District Officer. Every
adverse entry . shall be communicated to the District
Government Counsel· concerned by the District Officer,
with the prior approval of the Government.
(2) The character roll of every District Government G
Counsel shall· also be maintained by the Government in
Judicial (Legal Advice) Seciion. For this purpose, the Dis-
trict Officer shall forward to the Legal Remembrancer a
copy of all the confidential reports, recorded by him and
the District Judge on the work and conduct of the District
Government Counsel by the first week of May every year H
640 SUPREME COURT REPORTS [1990] Supp. 1 S.C.R.
for being incorporated in the character roll, mii~talned liy
A
the Governmeni.
(3) The District Officer shall forward a copy of all
the confidential reports, referred to in para 7.09(2) in
respect of District Government Counsel (Criminal) to
B Hr.me (Police) Section of Secretariat also for information.
(4) Any shortcomings on the part of the District
Government Counsel shall at once be brought to the notice
of the Legal Remembrancer." f
These provisions show that the initial appointment is for a period
c of one year during which the work and conduct of the appointee is
watched to adjudge his suitability and a report is required to be sub-
mitted at the end thereof by the District Officer after consulting the
District Judge and on the same being found satisfactory, his engage-
ment is made for a term not exceeding three years. Before expiry of
p the term of three years, the case of the incumbent is to be considered
on tke basis of his work, conduct and age for renewal and the Govern-
ment is required to decide the question of his reappointment for a
period not exceeding three years on the basis of the report of the
District Officer and the opinion of the District Judge. If the Govern-
ment agrees with their recommendations, the term of the existing
E incumbent is renewed for a period not exceeding three years. It is only
'if the Government decides not to reappoint a Government Counsel'
that the Legal Remembrancer may call upon the District Officer to
forward fresh recommendations in the manner laid down in para 7.03.
This procedure is to be followed on the expiry of every successive
period of renewed appointment of District Government Counsel. The
,'
F age factor mentioned in para 7.08 has to be read with the footnote to
it, which says that 'the renewal beyond 60 years of age shall depend
upon continuous good work, sound integrity and physical fitness of the
Counsel'. Para 7 .09 provides for maintenance of the character roll in
which the District Officer and the District Judge are required to record
their opinion on the capacity and work of the District Government
G Counsel. Clause 3 of para 7.06, regarding termination of the appoint-
ment, would be considered later while dealing with an other argument
of the learned Additional Advocate General. Part B of Chapter VII
lays down 'Duties'ofD.G.Cs.
The above provisions in the LR. Manual clearly show that the r
Ii . Government Counsel in the districts are treated as Law Officers of the
L
KUMAR! SHRILEKHA v. STATE OF Uf (VERMA, J.l 641
'
State who are holders of an 'office' or 'post'. The aforesaid provisions
A
in Chapter VII relating to appointment and conditions of engagement
of District Government Counsel show that the appointments are to be
made and ordinarily renewed on objective assessment of suitability of
the person based on the opinion of the District Officer and the District
Judge; and character roll is maintained for keeping a record of the
suitability of the appointee to enable an objective assessment for the B
purpose of his continuance as a Law Officer in the district. There are
provisions to bar private practice and participation in political activity
by D.G.Cs. Apart from clause 3 of para 7.06 to which we shall advert a
little later, these provisions clearly indicate that the appointment and
engagement of District Government Counsel is not the same as that by
a private litigant of his counsel and there is obviously an element of
continuity ·of the appointment unless the appointee is found to be c
unsuitable either by his own work, conduct or age or in comparison to
any more suitable candidate available at the place of appointment.
Suitability of the appointee being the prime criterion for any such
appointment, it is obvious that appointment of the best amongst those
available, is the object sought to be achieved by these provisions, D
which, even otherwise, should be the paramount consideration in dis-
charge of this governmental function aimed at promoting public
interest. All Govt. Counsel are paid remuneration out of the public
exchequer and there is a clear public element attaching to the 'office'
or 'post'.
E
The learhed Additional Advocate General contended that clause
3 of para 7 .06 says that the appointment of a District Government
Counsel is only professional engagement terminable at will on either
side and not appointment to a post under the Government; and the
• Government has the power to tenninate the appointment at any time
'without assigning any cause'. He contended that this power to ter- p
minate the appointment at any time without assigning any cause and
the clea·r statement that the appointment is only professional engage-
ment terminable at will on either side is sufficient to indicate that the
relationship is the same as that of a private client and his counsel. Jn
our opinion, this provision has to .be read not in isolation, but in the
context in which it appears and along with the connected provisions, G
already referred. The expression 'professional engagement' is used
therein to distinguish it from 'appointment to a post underthe Govern-
ment' _in the strict sense. This, however, does not necessarily mean
that a person who is not a Government servant holding a post under
the Government does not hold any public office and the engagement is
purely private with no p\)blic element attaching to it. This part of H
642 SUPREME COURT REPORTS 11990] Supp. 1 S.C.R.
clause 3 of para 7.06 means only this and no more. The other part of
A clause 3 which enables the Government to terminate the appointment
·at any time without assigning any cause' can also not be considered in
the manner, suggested by the learned Additional Advocate General.
The expression 'at any time' merely means that the termination may be
made even during the subsistence of the term of appointment and
B ·without assigning any cause' means without communicating any cause
to the appointee whose appointment is terminated. However, 'without
assigning any cause' is not to be equated with 'without existence of any
cause'. It merely means that the reason for which the termination is
made need not to be assigned or communicated to the appointee. It
was held in Liberty Oil Mills and Others v. Union of India and Others,
I 1984] 3 sec 465 that the expression 'without assigning any reason'
c implies that the decision has to be communicated, but reasons for the
decision have not to be stated; but the reasons must exist, otherwise,
the decision would be arbitrary. The non-assigning of reasons or the
non-communication thereof may be based on public policy, but ter-
mination of an appointment without the existence of any cogent reason
D in furtherance of the object for which the power is given would be
arbitrary and, therefore, against public policy. Clause 3 of para 7.06
must, therefore, be understood to mean that the appointment of a
District Government Counsel is not to be equated with appointment to
a post under the Government in the strict sense, which does not neces-
sarily mean that it results in denuding the office of its public character;
E and that the appointment may be terminated even during currency of
the term by only communicating the decision of termination without
communicating the reasons which led to the termination. It does not
mean that the appointment is at the sweet will of the Government
which can be terminated at any time, even without the existence of ariy ,
J
cogent reason during the subsistence of the term. The construction,
F suggested on behalf of the State of U.P. of this provision, if accepted,
would amount to conceding arbitrary power of termination to the
Government, which by itself is sufficient to reject the contention and
thereby save it from any attack to its validity.
(..-
We may now refer to some provisions of the Code of Criminal
G Procedure, 1973; relating to Public Prosecutors. Section 24 provides
for appointment of Public Prosecutors in the High Courts and the
districts by the Central Government or the State Government. We are
here concerned only with the appointment of Public Pros.ecutors by the
State Government in the districts. Sub-section 3 of Section 24 says that
for every district, the State Government shall appoint a Public Pro-
H secutor and may also appoint one or more Additional Public Prosecu-
KUMAR! SHR!LEKHA v. STATE OF.U.P. !VERMA, J,J 643
tors for the district. Sub-section 4 requires the District Magistrate to
A
prepare a panel of names of persons considered fit for such appoint-
ments, in consultation with the Session Judge, Sub-section 5 contains
an embargo against appointment of any person as the Public Prose-
cutor or Additional Pubiic Prosecutor for the district by the State
Government unless his name appears in the panel prepared under
sub-section 4, Sub-section 6 provides for such appointments, .where in B
a State there exists a regular Cadre of Prosecuting Officers but if no
suitable person is available .in such cadre, then the appointment has to
be made from the panel prepared under sub-section 4, Sub-section 7
says that a person shall be eligible for such appointment only after he
has been in practice as an advocate for .not less than seven years.
Section 25 deals with the appointment of Assistant Public Prosecutors
in the district for conducting prosecution in the Courts of Magistrate. c
In the case of Public Prosecutors also known as District Government
·Counsel (Criminal), there can be no doubt about the statutory element
attaching to such appointments by virtue of these provisions in the.
Code of Criminal Procedure, 1973. In thi.s context, Section 321 of the
Code of Criminal Procedure, 1973, is also significant. Section 321 D
permits withdrawal from prosecution by the Public Prosecutor or
Assistant Public Prosecutor in· charge of a case, with the consent of the
Court, at any time before the judgment is pronounced. This power of
the Public Prosecutor in charge of the case is derived from statute and
the guiding consideration for it, must be the interest of administration
of justice. There can be no doubt that this function of the Public E
Prosecutor relates to a public purpose entrusting him with the res- ·
ponsibility of so acting only in the interest of administration of justice.
In the case of Public Prosecutors, this additional public ele~ent flow-
ing from statutory provisions in the Code of. Criminal Procedure,
• undoubtedly, invest the Public Prosecutors with the attribute. of holder
'
of a public office which cannot b.e whittled down by the assertion that F
their engagement is purely professional between a client and his
lawyer with no public element attaching to it.
A brief reference to some decisions of this Court, in which the
character of engagement of a Government Counsel was considered.
may be made. In Mahadeo v. Shantibhai and Ors., [1969) 2 SCR 422. it G
was held that a lawyer engaged by the Railway Administration during
the continuance of the engagement was holding an 'office of profit'.
The engagement of the Railway Counsel was similar to that of the
Government Counsel in the present case. It was pointed out that by
• 'office' is meant the right and duty to exercise an employment,.or a·
position of authority and trust to which certain duties are atta<;hed; H
644 SUPREME COURT REPORTS I 1990) Supp. 1 S.C.R.
and such an engagement satisfied that test. Even though the decision
A
was rendered in the context of disqualification under the Election La\\
by holding an 'office of profit', yet it is useful for appreciating the
nature of such an engagement or appointment of a counsel by the
Government. In Mundrika Prasad Sinha v. State of Bihar, I 1980) 1
SCR 759, the nature of appointment of Government Pleaders came up
B for consideration and it was said that the office of a Government
Pleader, as defined in Section 2(7) of the Code of Civil Procedure.
1908. is a public office. Krishna Iyer. J.. in that decision, also pointed
out that the 'Government under our. Constitution shall not play with
law offices on political or other impertinent consideration as it may
affect the legality of the action and subvert the rule of law itself'. In
that decision, an earlier Madras decision was quoted with approval.
c wherein, it was clearly held that the duties of the Government Pleader
are of a public nature and that the office of a G~vernment Pleader is a
public office. The relevant extract is as under:
" ..... A Government pleader is more than an advocate
D for a litigant. He holds a public office. We recall with
approval the observations a Division Bench of the Madras
High Court made in Ramachandran v. A/agiriswami, AIR
1961 Madras 460 and regard the view there. expressed
about a Government Pleader·s office, as broadly correct
even in the Bihar set-up.
E
" ... the duties of the Government Pleader, Madras
are duties of a public nature. Besides, as already exp-
lained the public are genuinely concerned with the
manner in which Government Pleader discharges his
j
duties because, if he handles his cases badly, they
F have ultimately to foot the bill.
xxxxx xxxxx xxxxx
"I consider that the most useful test to be applied to
determine the question is that laid down by Erle. J. in
G (1851) 17 QB 149. The three criteria are, source of the
office, the tenure and the duties. I have applied that test
and I am of opinion that the conclusion that the offce is a
public office is irresistible.··
Similarlv. in Muku/ Dalal and Others v. Union of India and Others,
·H / 1988) 3'scc 144."it was held that the 'office of the Public Prosecutor is
KUMAR! SHRILEKHA v. STATE OF U.P. [VERMA, J.] 645
a public one' and 'the primacy giv.en to the Public Prosecutor under the
A
Scheme of the Code (Cr.P.C.) has a sociai purpose·.
It is useful in this context to refer to the decision in Malloch v.
Aberdeen Corporation, [1971] 2 All ER 1278. That was a case of dis•
missal of an employee of a public authority whose appointment was
during the authority's pleasure. Examining the scope of judicial B
review, Lord Wilberforce said:
"The appellant's challenge ·to· the action taken by the
respondents raises a question in my opinion. of adminisita,
tive law. The respondents ate a public authority. the appel-
lant holds a public position fortified by statute. The con- -
siderations which determine whether he has been validly (j
reinoveci from tha'i position go beyond the mete contract ol
employment, though no' dolibi including it: They are, in my
·opinion, to betested broadly on arguments of public policy
. and not to be t~solved on narrow· verbal distinctions. The
appellant is entitled to complain if, whether iii procedure D
or in substance, essential requirements, ·appropriate to his
situation in the pubiic service under the respondents, have
not been observed and; in case of non-obsetvafice, to come
io the courts for redress.
xxxxx xxxxx
-- ... : ; So. while the courts will necessarily respect the
right. for good reasons of pubiic policy, to disirliss without
assigned reasons,· this should not. in my opinion, pteVetit
them from examining the framework; and context of tke
employment to see ·whether eleinetifary rights ate cdiifet· ji
fed Oti him expressly Of by necessary implication, arid htJW
far these exiend. ' .... ':'
We are, therefore, unable ici accept the argument of the ieatrted
Additional Advdcaie General that the appointment Of· District
Government Counsel by the State Government is only a professional O
engagement like that between a private client arid his iawyer, or that it
is purely contractual with no public element attaching to it. which may
be terminated at any time at the sweet will of the Government exclud-
ing judicial review. We have already indicated the ptesence of piiblic
element attached to the 'office' or 'post' of District ddv~tnmetii
Counsel of every caiegoty covered by the impugned Circular. Thi~ is H
646 SUPREME COURT REPORTS I 1990] Supp. I S.C.R.
sufficient to attract Article 14 of the Constitution and bring the ques-
A
tion of validity of the impugned circular within the scope of judicial
review.
The scope of judicial review permissible in the present case, does
not require any elaborate consideration since even the minimum
B permitted scope of judicial review on the ground of arbitrariness or
unreasonableness or irrationality, once Article 14 is attracted, is suffi-
cient to invalidate the impugned circular as indicated later. We need
not, therefore, deal at length with the scope of judicial review permis-
sible in such cases since several nuances of that ticklish question do not 7
arise for consideration in the present case.
c Even· otherwise and sans the public element so obvious in these
appointments, the appointment and its concomitants viewed as purely
contractual matters after the appointment is made, also attract Article
14 and exclude arbitrariness permitting judicial review of the
impugned State action. This aspect is dealt with hereafter.
D
Even apart from the premise that the 'office' or 'post' of D.G.Cs.
has a public element which alone is sufficient to attract the power of
judicial review for testing validity of the impugned circular on the anvil
of Article 14, we are also clearly of the view that this power is available
even without that element on the premise that after the initial appoint-
E ment, the matter is purely contractual. Applicability of Article 14 to all
executive actions of the State being settled and for the same reason its
applicability at the threshold to the making of a contract in exercise of
the executive power being beyond dispute, can it be said that the State
can thereafter cast off its personality and exercise unbridled power
unfettered by the requirements of Article 14 in the sphere of con-
F tractual matters and claim to be governed therein only by private law
principles applicable to private individuals whose rights flow only from
the terms of the contract without anything more? We have no hesita-
tion in saying that the personality of the State, requiring regulation of
its conduct in all spheres by requirements of Article 14, does not
undergo such a redical change after the making of a contract merely
G because some contractual rights accrue to the other party in addition.
It is not as if the requirements of Article 14 and contractual obligations
are alien concepts, which cannot co-exist.
The Preamble of the Constitution of India resolves to secure to
all its citizens Justice, social, economic and political; and Equality of
H status and opportunity. Every State action must be aimed at achieving
' ..: KUMAR! SHRILEKHA v. STATE OF U.P. [VERMA, J.] 647
this goal. Part IV of the Constitution contains 'Directives Principles
A
of State Policy' which are fundamental in the governance of the
country and are aimed at securing social and economic freedoms by
appropriate State action which is complementary to individual funda-
mental rights guaranteed in Part III for protection against excesses of
State action, to realise the vision in the Preamble. This being the
philosophy of the Constitution, can it be said that it contemplates B
exclusion of Article 14-non-arbitrariness which is basic to rule of
law-from State actions in contractual field when all.actions of the
State are meant for public good and expected to be fair .and just? We
" have no doubt that the Constitution does not envisage or permit
unfairness or unreasonableness in State actions in any sphere of its
activity contrary to the professed ideals in the Preamble. In our
opinion, it would be a.lien to the Constitutional Scheme to accept the c
argument of exclusion of Article 14 in contractual matters. The scope
and permissible grounds of judicial review in such matters and the
relief which may be available are different matters but that does not
justify the view of its total exclusion. This is more so when the modern
trend is also to examine the unreasonableness of a term in such con- D
tracts where the bargaining power is unequal so that these are not
negotiated contracts but standard form contracts between unequals.
There is an obvious difference in the contracts between private
parties and contracts to which the State is a party, Private parties are
concerned only with their personal interest whereas the State while E
exercising its powers and discharging its functions, acts indubitably, as
is expected of it. for public good and in public interest. The impact of
every State action is also on public interest. This factor alone is suffi-
cient to import at least the minimal requirements of public law obliga-
' lions and impress with this charact,er the contracts made by the State
or its instrumentality. It is a different matter that the scope of judicial F
review in respect of disputes falling within the domain of contractual
obligations may be more limited and in doubtful cases the parties may
be relegated to adjudication of their rights by resort to remedies pro-
vided for adjudication of purely contractual disputes. However, to the
-1 extent, challenge is made on the ground of violation of Article 14 by
alleging that the impugned act is arbitrary, unfair or unreasonable, the G
fact that the dispute also falls within the domain of contractual obliga-
tions would not reiieve the State of its obligation to comply with the
basic·requirements of Article 14. To this extent, the obligation is of a
public character invariably in every case irrespective of there being any
other right or obligation in addition thereto. An additional contractual
obligation cannot divest the claimant of the guarantee under Article 14 H
~
648 SUPRIOME COURT REPORTS [1990] Supp. 1 S.C.R.
of non-arbitrariness at the hands of the State in any of its actions.
A
Thus, in a case like the present, if it is shown that the impugned
State action is arbitrary and, therefore, violative of Article 14 of the
Constitution, there can be no impediment in striking down the
impugned act irrespective of the question whether an additional right,
B contractual or statutory, if any, is also available to the aggrieved
persons.
The State cannot be attributed the spm personality of !Jr. Jekyll
and Mr. Hyde in the contractual field so as to impress on it all the
characteristics of the State at the threshold while making a contract
requiring it to fulfil the obligation of Article 14 of the Constitution and
c thereafter permitting it to cast off its garb of State to adorn the new
robe of a private body during the subsistence of the contract enabling
it to act arbitrarily subject only to the contractual obligations and
remedies flowing from it. It is really the nature of its personality as
State which is significant and must characterize all its actions, in what-
D ever field, and not the nature of function, contractual or otherwise,
which is decisive of the nature of scrutiny permitted for examining the
validity of its act. The requirement of Article 14 being the duty to act
fairly, justly and reasonably, there is nothing which militates against
the concept of requiring the State always to so act, even in contractual
matters. There is a basic difference between the acts of the State which
E must invariably, be in public interest and those of a private individual,
engaged in similar activities, being primarily for personal gain, which
may <ir may not promote public interest. Viewed in this manner, in
which we find ,no conceptual difficulty or anachronism, we find no
reason why the,requirement of Article 14 should not extend even in
the sphere of ,contractual matters for regulating the conduct of the }
F State activity.
I
In Wade's,Administrative Law, 6th Ed., after indicating that.'the
powers of public authorities are essentially different from those of
private persons', it has .been succinctly stated at p. 400-401 as under:
" .. ,. .. The whole conception of unfettered discretion is in-
appropriate to a public authority, which possesses powers
sol~ly in order that it may use them for the public good.
, There is nothing paradoxical in the imposition of such
legal limits. It would indeed be paradoxical if they were not ,i.
imposed. Nor is this principle an oddity of British or
KUMAR! SHR!LEKHA v. STATE OF U.P. [VE~MA, J.I 649
American law: it is equally prominent in French law. Nor is
A
it a special restriction which fetters only lac.al authorities: it
app)ies no less to ministers of the Crown. Nor is it confined
to the sphere of administration: it operates wherever discre-
tion is given for some public purpose, for example where a
judge has a discretion to order jury trial. It is only where
powers are given for the personal benefit of the person
empowered that the discretion is absolute. Plainly this can
have l)O application in public law.
For the same reasons there should in principle be no
such thing as unreviewable administrative discretion, which
should be just as much a contradiction in terms as .unfettered C
discretion. The question which has to be asked is what is
the scope of judicial review, and in a few special cases the.
scope for the review of discretionary decisions may be
minimal. It remains axiomatic that all discretion is capable
of abuse, and that legal limits to every power are to be
found somewhere." D
(emphasis supplied)
The view, we are taking is, ther.efore, in consonance with ,the current
thought in this field. We have no doubt that the scope of judicial
review may vary with reference to the type of matter involved; but the E
fact that the action is reviewable, irrespective of the sphere in which it
is exercised,.cannot b.e doubted.
A useful treatment of the subject is' to be found in (1990) 106
L.Q.R. at pages 277 to 292 in an article 'Judicial Review and Con-
tractual Powers of Public Authorities'. The conclusion drawn i.n the
article on the basis of recent English decisions is.that 'public law princi-
ples designed to protect the cit~ens should apply because of the public
nature of the body, and they may have some ,role in protecting the·
public interest'. The trend now is towards judicial review ofcontrac-
tua'l powers and the other activities of the Government. Reference is
made also to the recent decision of the Court of Appeal in Jones v.· c; .
•
Swansea City Council, [1990] I W.LR. 54, where the Court's clear
inclination to the view that contractual, powers should generally be .
reviewable is indicated, even though the Court of Appeal faltered at
the last step and refrained from saying so. It is significant to note that
.emphasis now is on reviewability of every State action.because it stems
not from the nature of function, but from the public nature of the body H
650 SUPREME COURT REPORTS [1990] Supp. 1 S.C.R.
exercising that function; and all powers possessed by a public autho-
A
rity, howsoever conferred, are possessed 'solely in order that it may
use them for the public good'. The only exception limiting the same is
to be found in specific cases where such exclusion may be desirable for
strong reasons of public policy. This, however, does not justify exclu-
sion of reviewability in the contractual field involving the State since it
B is no longer a mefe private activity to be excluded from public view or
scrutiny.
Unlike a private party whose acts uninformed by reason and
influenced by personal predilections in contractual matters may result
in adverse consequences to it alone without affecting the public
C interest, any such act of the State or a public body even in this field
would adversely affect the public interest. Every holder of a publi~
office by virtue of which he acts on behalf of the State or public body is
ultimately accountable to the people in whom the sovereignty vests.
As such, all powers so vested in him are meant to be exercised for
public good and promoting the public interest. This is equally true of
D all actions even in the field of contract. Thus, every holder of a public
office is a trustee whose highest duty is to the people of the country
and, therefore, every act of the holder of a public office, irrespective
of the label classifying that act, Is fo. d1scharge of public duty meant
ultimately for public good. With the d-iversification of State activity in
a Welfare State requiring the State to discharge its wide-ranging func-
E tions even through its several instrumentalities, which requires enter-
ing into contracts also,· it would be unreal and not pragmatic, apart
from being unjustified to exclude contractual matters from the sphere
of State actions required to be non-arbitrary and justified on the
touchstone of Article 14.
F Even assuming that. it is necessary to import the concept of
presence of some public element in a State action to attract Article 14
and permit judicial review, we have no hesitation in saying that the
ultimate impact of all actions of the State or a public body being
undoubtedly on public interest, the requisite public element for this
purpose is present also in contractual matters. We, therefore, find it
G . difficult and unrealistic to exclude the State actions in contractual
matters, after the contract has been made, from the purview of judicial
review to test its validity on the anvil of Article 14.
It can no longer be doubted at this point of time that Article 14 of
the Constitution of India applies also to matters of governmental
H policy and if the policy or any action of the Government, eve_n in
KUMAR! SHRILEKHA V. STATE OF U.P. [VER~, J.] 651
contractual matters, fails to satisfy the test of reasonableness, it would
A
be unconstitutional. [see Ramana Dayaram Shetty v. The International
Airport Authority of India and Ors., [1979) 3 SCR 1014 and Kasturi
Lal Lakshmi Reddy v. State of Jammu and Kashmir & Anr., [1980) 3
SCR 1338. In Col. A.S. Sangwan v. Union of India and Ors., [1980)
Supp. SCC 559, while the discretion to change the policy in exercise of
the executive power, when not trammelled by the statute or rule,, was B
held to be wide, it was emphasised as imperative and implicit in Airticle
14 of the Constitution that a change in policy must be made fairly and
should not give the impression that it was so done arbitrarily or qy any
ulterior criteria. The wide sweep of Article 14 and the requirement of
every State action qualifying for its validity on this touch-stone,
irrespective of the field of activity of the State, has long been settled.
Later decisions of this Court have reinforced the foundation of this
c
tenet and it would be sufficient to refer only to two recent decisions of
this Court for this purpose.
In M/s Dwarkadas Marfatia and Sons v. Board of Trustees of the
Port of Bombay, [1989) 3 SCC 293, the matter was re-examined in D
~.
relation to an instrumentality of the State for applicability of Article 14
to all its actions. Referring to the earlier decisions of this Court and
examining the argument for applicability of Article 14, even in
. contractual matters, Sabyasachi Mukharji, J. (as the learned Chief
Justice then was), speaking for himself and Kania, J., reiterated that
'every action of the State or an instrumentality of the State m.ust be E
informed by reason. . .... actions uninformed by reason may be
questioned as arbitrary in proceedings under Article 226 or Article 32
of the Constitution.' Ranganathan, J. did not express any opinion on
this point but agreed with the conclusion of the other learned Judges
on the facts of the case. It is obvious that the conclusion on the facts of
the case could not be reached by Ranganathan, J. without examining F
them and this could be done only on the basis that it was permissible to
make .the judicial review. Thus, Ranganathan, J. also applied that
principle without saying so. In view of the wide-ranging and, m
essence, all pervading sphere of State activity In discharge of its
welfare functions, the question assumes considerable importance and
cannot be shelved. The basic requirement of Article 14 is fairness in G
action by the State and we find it difficult to accept that the State can
be permitted to act otherwise in any field, of its activity, irrespective of
the nature of its function, when it has the uppermost duty to be gover-
ned by the rule of law. Non-arbitrariness, in substance_,js only fair play
in .action. We have no doubt that this obvious requirement must be
satisfied by every action of the State or its instrumentality in order to H
652 SUPREME COURT REPORTS [1990] Supp. 1 S.C.R.
satisfy the test of valioity.
A
It is this aspect which has been considered at length by
Sabyasachi Mukharji, J. (as the learned Chief Justice then was) in M/s
Dwarkadas Marfatia's case (supra) even though, that was a case of
statutory .exemption granted under the Rent Act to an instrumentality
of the State and it was in that context that the exercise of power to
terminate the contractual tenancy was examined. All the same, with-
out going into the question whether the obligation of the instrumenta-
lity to act in pursuance of public purpose, was a public law purpose or
private law purpose, it was held that the obligatio11 to act in pursuance
of public purpose was alone sufficient to attract Article 14. It was held
that there was an implied obligation in respect of the dealings with the
c tenants/occupants of the authority to act in public interest/purpose. It
was emphasised that every state action has to be for a public purpose
and must promote public benefit. Referring to some earlier decisions,
it was reiterated that all State actions 'whatever their mien' are amen-
able to constitutional limitations, the alternative being to permit them
D 'to flourish as an imperium in imperio'. It was pointed out that
'governmental policy would be invalid as lacking in public interest,
unreasonable or contrary to the professed standards', if it suffers from
this vice. ft was .stated that every State action must be reasonable and
in public interes.t and an infraction of that duty is amenable to judicial
review. The extent of permissible judicial review was indicated by
E saying that 'actions are amenable to judicial review only to the extent
that the State must act validly for a discernible reason, not whimsically
for any ulterior purpose'. It is sufficient to quote from the judgment of
Mukbarji, J. (as the learned Chief Justice then was) the following
extract:
f' " ..... Where there is arbitrariness in State action, Article
14 springs in and judicial review strikes such an action
down. Every action of the executive authority must be
subject to rule of Jaw and must be informed by reason. So,
whatever be the activity of the public authority, it should
meet the test of Article 14. .... .
G (emphasis supplied)
This decision clearly shows that no doubt was entertained about the
applicability of Article 14 of the Constitution to an action of the State
or its instrumentality, even where the action was taken under the terms
,of a contract of tenancy which alone applied by virtue of the exemption
fi granted under the Rent Act excluding the applicability of the provi-
sions thereof.
KlJMARI SHRILEKHA v. STATE OF U.P. [VERMA, J.] 653
In apother recent decision in Mahabir Auto Store.s & Ors. v.
Indian Oil Corpomtion .& Ors., J.T. 1990 1 S.C. 363, it was held that
Article 14 was attracted even where the aggrieved person did not have
the benefit of either a contractual or a statutory right. The grievance in
that case was made by a person who was not a dealer of tbe Indian Oil
Corporation .but merely claimed to bave been tieated '!S one by a long
course of conduct. It was held by the learned Chief Justice .that the B
imp11gned act of the Indian Oil Corporation was .an administrative
decision aqd could be impeached on the ground that it was arbitrary or
violative of Article 14 of the Constitution. It was emphasised that the
Indian Oil Corporation being an ins(rumentality of the State wes
bound to ·act fairly; and that 'fairness in such actions should be
perceptible., if not transparent'. If ArtiGle 14 w.as applied even without
the benefit of a contract of dealership, the position cannot be worse c
with the: added benefit of a contract. With respect, we concur with the
view .about the impact of Article 14 of the Constitution on every State
aciion as indicated by the learned Chief lµstice in these two recent
decisions.
D
,
No doubt, it is true, as indicated by us earlier, that there is .a
• pres11mp!ion of validity of the State action and .the burden is ori the
person who alleges violation of Article 14 to prove the .assertion.
However., where no plausible reason or principle is indicated nor is it
discernible and the impugned State action, therefore, appears to be ex
facie arbitrary, the initial burden to prove the arbitrariness is dis- E
charged .shifting onus on the State to justify its action as fair and
reasonable. If the State is i.mable to produce material to justify its
action as fair and reasonable, the burden on the person alleging
arbitr,ariness must be held to be discharged. The scope of judicial
r,eview is limited as indicated in Dwarkadas Marfatia's case (supra) to
.overse'e the State action for the purpose of satisfying that it is not F
vitiated by the vice of arbitr.ariness and no more. The w.isdom of !he
policy or the lack of it or the desirability of a better alternative is not
within the permissible scope of judicial review in such cases. lt is not
for the courts to recast the policy or to substitute it with another which
is considered to be more appropriate, once the attack on the ground of
arbitrariness is successfully repelled by showing that the act which was G
done, was fair and reasonable in the facts and circumstances of the
case. As indicated by Diplock, L.J., in Council of Civil Service Unions
v. Minister for the Civil Serv,ice, il984] 3 All ER 935, the power of
judicial review is limited ,to .tbe grounds of illegality, irrationa"lity .and
procedural impropriety. ln the case of arbitrariness, the defect of irra-
tionality is obvious, .H
654 SUPREME COURT REPOl}TS [ 1990] Supp. 1 S.C.R.
A In our opinion, the wide sweep of Article 14 undoubtedly takes
within its fold the impugned circular issued by the State of U.P. in
exercise of its executive power, irrespective of the precise nature of
appointment of the Government Counsel in the districts and the other
rights, contractual or statutory, which the appointees may have. It is
for this reason that we base our decision on the ground that indepen-
B dent of any statutory right, available to the appointees, and assuming
for the purpose of this case that the rights flow only from the contract
of appointment, the impugned circular, issued in exercise of the execu-
tive power of the State, must satisfy Article 14 of the Constitution and
if it is shown to be arbitrary, it must be struck down. However, we
have ~eferred to certain provisions relating to initial appointment, ·
termination or renewal of tenure to indicate that the action is ·control-
c led at least by settled guidelines, followed by the State of U.P., for a
long time. This too is relevant for deciding the question of arbitrari-
ness alleged in the present case.
It is now too well-settled that every State action, in order to
D survive, must not be susceptible to the vice of arbitrariness which is the
crux of Article 14 of the Constitution and basic to the rule of law, the
system which governs us. Arbitrariness is the very negation of the rule
of law. Satisfaction of this basic test in every State action is sine qua
non to its validity and in this respect, the State cannot claim compari-
son with a private individual even in the field of contract. This distinc-
E tion between the State and a private individual in the field of contract
has to be borne in the mind.
The meaning and true import of arbitrariness is more easily
visualized than precisely stated or defined. The question, whether an
j
impugned act is arbitrary or not, is ultimately to be answered on the
F facts and in the circumstances of a given case. An obvious test to apply
is to see whether there is any discernible principle emerging from the
impugned act and if so, does it satisfy the test of reasonableness.
Where a mode is prescribed for doing an act and there is no impedi-
ment in following that procedure, performance of the act otherwise
and in a manner which does not disclose any discernible principle
G which is reasonable, may itself attract the vice of arbitrariness. Every
State action must be informed by reason and it follows that an act
uninformed by reason, is arbitrary. Rule of law contemplates govern-
ance by Jaws and not by humour, whims or caprices of the men to
whom the governance is entrusted for the time being. It is trite that 'be
you ever so high, the Jaws are above you'. This is what men in power
H must remember, always.
KUMAR! SHRILEKHA v. STATE OF U.P. [VERMA, J.J 655
Almost a quarter century back, this Court in S.G. Jaisinghani v. A
Union of India and Ors., [1967] 2 SCR 703, at p. 718-19, indicated the
test of arbitrariness and the pitfalls to be avoided in all State actions to
prevent that vice, in a passage as under:
"In this context it is important to emphasize that the
B
absence of arbitrary power is the first essential of the rule
of law upon which our whole constitutional system is
based. In a system governed by rule of law, discretion,
when conferred upon executive authorities, must be con-
fined within clearly defined limits. The rule of law from this
point of view means that decisions should be made by the
application of known principles and rules and, in general, c
such decisions should be predictable and the citizen should
know where he is. If a decision is taken without any princi-
ple or without any rule it is unpredictable and such a deci-
sion is the antithesis of a decision taken in accordance with
the rule of law. (See Dicey-"Law of the Constitution"-
D
. Tenth Edn., Introduction ex). "Law has reached its finest
moments", stated Douglas, J. in United States v. Wunder-
lick, (*), "when it has freed man from the unlimited discre-
tion of some ruler ... Where discretion is absolute, man
has always suffered". It is in this sense that the rule of law
may be said to be the sworn enemy of caprice. Discretion,
as Lord Mansfield stated it in classic terms in the case of E.
John Wilker(*), "means sound discretion guided by law. It
must be governed by rule, not humour: it must not be
arbitrary, vague and fanciful."
After Jaisinghani's case (supra), long strides have been taken in
F
several well-known decisions of this Court expanding the scope of
judicial review in such matters. It has been emphasized time and again
that arbitrariness is anathema to State action in every sphere and
wherever the vice percolat~s, this Court would not be impeded by
technicalities to trace it and strike it down. This is the surest way to
ensure the majesty of rule of law guaranteed by the Constitution of
G
India. It is, therefore, obvious that irrespective of the nature of
appointment of the Government Counsel in the districts in the State of
U. P. and the security of tenure being even minimal as claimed by the
State, the impugned circular, in order to survive, must withstand the
attack of arbitrariness and be supported as an informed decision which
is reasonable. H
r
656 SUPREME COURT REPORTS [1990] Supp. I S.C.R.
No doubt, it is for the person alleging arbitrariness who has to
A
prove it. This can be done by showing in the first instance that the
impugned State action is uninformed by reason inasmuch as there is no
discernible principle oiJ which it is based or it is contrary to·the pre-
scribed mode of exercise of the power or is unreasonable. If this is
shown, then the burden is shifted to the State to repel the attack by
disciosing the material and reasons which led to the action being taken
in order to show that it was an informed decision which was reason-
able. If after a prima facie case of arbitrariness is made out, the State
is unable to show that the decision is an informed action which is
reasonable, the State action must perish as arbitrary.
In the present case, the initial burden on the petitioners/appel-
c lants has been discharged by showing that there is no discernible princi- ·
pie for the impugned action at the district level throughout the State of
U .P. since there is nothing in the circular to indicate that such a sweep-
ing action for all districts throughout the State was necessary which
made it reasonable to change all Government Counsel in the districts
b throughout the State, even those whose tenure in office had not
expired. Such a drastic action could be justified only on the basis of ;'
some .extraordinary ground equaHy applicable to aH Government
Counsel.in the districts throughout the State which is reasonable. No
such reason appears in the circular. ·
• E The impugned circular itself does not indicate the compelling
reason, if any, for the drastic· step of replacing all the Government
Counsel in every branch at the district level throughout the State of
U. P.; itresi;ective of the fact w_hethet the tenure of the incumbent had
expired ot not. The learned Additio.iai Advocate General stated that )
the circular was issued because the_ existing panels were made in 1985,
1986 and 1987 and were considered to be not too proximate· in point of
time in the year 1990 for being continued. The reason, if any, for
considering such en bloc change qecessary has not been disclosed
either in the circular or at the bearing in addition to what is saicl in para
29 of the counter-affidavit of A.K. Singh, which is referred later. On
behalf of the petitioners/appellants, it was alleged that the en masse
0 change at the district level throughout the State of U .P. was made only
for political reasons on account of the recent change in the State
Government. We deem it unnecessary to go into this question for want
of any specific material either way. Moreover, the arbitrariness, if any,
of such an act, would be equally applicable irrespective of the change
in the Government, which, if at all, would only strengthen the' argu-
ment in case arbitrariness is proved otherwise. The only teason given
KUMAR! Sl-IRiLEKHA v. STATE OF U.~. (VERMA, J.J 657
in the counter-affidavit of A.K. Singh, Joint Secretary & Joint Legal A
Rememberancer, Government of U .P.,. is in para 29 thereof which
reads as under:
"That the contents of para 38 of the writ petition are not
admitted. It is denied that the government took the presertt
decision with a poliiical mdtive and in an arbiifaty !Mtiflei. B
it is also submitted that the decision to terminate the pto-
fessional engagement has been fakeri in order tci sireamiine
the conduct of the government cases and effeciive ptosecu- .
tion thereof."
It is difficult to appreciate this as a reasonable basis for ihe
drastic and sweeping action throughout the State, particularly wheh
. t
the provisions in the Legal Remembrancer's Manual referred- eatliet
provide ordinarily for teiiewai of the tenure of the appointees. To say
the least; the contents of pata 29 of this counter-affidavit which alone
are relied on to disclose the reasons for the Circular are beailtiltilly
vague and convey nothing of substance and cannot furnish any tangible D
support to the impugned circular. 1t was stated by the iearned Addi-
tional Advocate General that many of the old incumbents were to he
re-appointed even after tliis exercise and, therefore, a wholesale
Change was not to be made. If at all. this submission disdoses a further
infirmity in the impugned circular. 1t it be ttue that many of the exist-
ing appointees were to be continued by giving them fresh appoint- E
rnents, the action of fitst terminating their appointment and tfien
giving them ftesh appointment is, to say the least, !itiinformed by
reason and does not even fall within the scope of the disclosed reason
•- 'to stteamiine the conduct of govet11ment cases and effective prosecu-
tion thereof. It is obvious that at ieast iH respect of ail stith appointees
who are to be. continued by giving them ftesh appointments, the act of F
terminating their appointment in one stroke, was without application
of mihd by anyone to the question Whether a change was at ai1 needed
in their case. It wouid be too much to assume that every Governrnerlt
Counsei in ali the districts of the State of tJ.P. was required to be
replaced in order to streamline the conduct of government cases and
indeed. that is Nat even the case of the State whiCh itseif says that G
tnany of them were to be re-appointed.
Non-application of mind to individual cases before issuing a
general circular terminating ail such appointments throughout tiie
State of U.P, is itseif eloqueiit of the arbitrariness writ iarge bti the
face of the circular. 1t is obvious that issuance of the illipug11ed cltt!Jlat H
658 SUPREME COURT REPORTS [1990] Supp. I S.C.R.
was not governed by any rule but by the whim or fancy of someone
A
totally unaware of the requirements of rule of law, neatly spelled out
in the case ofJohn Wilkes, [1770] 4 Burr. 2528 more than two centuries
back and quoted with approval by this Court almost a quarter century
earlier in Jaisinghani's case (supra). We have considered it necessary
to re-emphasize this aspect and reiterate what has been said so often
B by this Court only because we find that some persons entrusted with
the task of governance appear to be unaware of the fact that the
exercise of discretion they have must be governed by rule, not by
humour, whim,_ caprice or fancy or personal predilections. It also
disturbs us to find that the Legal Remembrancer's Department of the
State of U.P. which has the duty to correctly advise the_ State Govern-
ment in such matters, overlooked the obvious and failed to discharge
c its bounden duty of correctly advising the State Government in
·matters of law. We would like to believe that the impugned circular
was issued for want of proper legal advice in this behalf instead of any
ulterior motive suggested by the petitioners/appellants.
D Conferment of the power together with the discretion which goes
with it to enable proper exercise of the power is coupled with the duty
to shun arbitrariness in its exercise and to promote the object for :•
which the power is conferred,.which undoubtedly is public interest and
not individual or private gain, whim or caprice of any individual. All
persons entrusted with any such power have to bear in mind its neces-
E sary concomitant which alone justified conferment of power under the
rule of law. This was apparently lost sight of in the present case while
issuing the impugned circular.·
Arbitrariness is writ large in the impugned circular dated ·
6.2.1990 issued by the State of Uttar Pradesh. It gives the impression '
F that this action was taken under the mistaken belief of applicability of
·•spoils system" under our Constitution and the cavaiier fashion in
. which the action has been taken gives it the colour of treating the posts
of D.G.Cs. as bounty to be distributed by the appointing authority at
its s_weet ":ill· Such ajhan_g<:_ even by a private rarty is made keeping in
view his own interest when he finds that the existing lawyer _is not
G suitable for the assignment and, therefore, without making the change
he incurs the risk of some loss. In the case of the State it is the public
interest which should be the prime guiding consideration to judge the
suitability of the appointee but it appears that the impugned State
action was taken in the present case with only one object in view, that
is, to terminate all existing appointments irrespective of the subsis-
H. tance or expiry of the tenure or suitability of the existing incumbents.
>'. KUMAR! SHRILEKHA v. STATE OF u.. P. [VERMA, J.I 659
Viewed in any manner, the impugned circular da~ed 6.2.90 is
A
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 reason
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 B
be re-appointed is by itself ample proof of the fact t.hat 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 proce-
dure for appointment, termination and renewal of tenure and the re-
q uirement 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
c
existing incumbent is not found suitable in comparison to more suit-
able persons available for appointment at the time of renewal. In the
case of existing appointees, a decision has to be first reached about
their non-suitability for renewal before deciding to take steps for mak-
ing fresh appointments to replace them. None of these steps were D
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 regu-
late exercise of this power was totally ignored. In short, nothing worth-
while has been shown on behalf of the State of U,P. to support the E
impugned action as reasonable and non-arbitrary. The impugned
circular must, therfore, perish on the ground of arbitrariness which is
an available ground for judicial review in such a situation.
' In view of the above conclusion, all the existing appointees to the
posts of Government Counsel in the districts throughout the State of F
U.P., by whatever name called, governed by the impugned circular
dated 6.2. 1990, who were in position at the time of issuance of the
circular, must continue in office and be dealt with in accordance with
the procedure laid down in the L.R. Manual. Those Government
Counsel, whose term had then expired or was to expire thereafter,
would be considered for renewal of their tenure in the manner pr~- G
scribed and steps for preparation of a fresh panel to replace them
would be taken only if they are found unsuitable for renewal of their
term as a result of an informed decision in the manner prescribed. The
,. power of termination of any appointment during the subsistence of the
"'· term available to the State Government shall also be available for
exercise only in the manner indicated, wherever considere~ necessary. H
·-'·'ii
660 SUPREME COURT REPORTS [ 1990] Supp. I S.C.R. .'<
A In short, the status quo ante as on 28.2.1990, on which date the
impugned circular dated 6.2.1990 was made effective, will be restored
and be maintained till change in any appointment is found necessary
and is made in the manner prescribed. The fresh appointments, if any,
made by the State Government in implementation of the impugned
circular dated 6.2. 1990, being subject to the validity of the circular and
B
the result of these matters, would stand superseded in this manner.
The State Government will implement this direction within two weeks
of the date of this order.
In our view, bringing the State activity in contractual matters
also within the purview of judicial review is inevitable and is a logical
c corollary to the stage already reached in the decisions of this Court so
far. Having fortunately reached this point, we should not now turn
back or take a turn in a different direction or merely stop there. In our
opinion, two recent decisions in Mis Dwarkadas Marfatia and Sons,
(supra) and Mahabir Auto Stores & Ors., (supra) also lead in the same
direction without saying so in clear terms. This appears to be also the
D trend of the recent English decisions. It is in consonance with our
commitment to openness which implies scrutiny of every State action
to provide an effective check against arbitrariness and abuse of power.
We would much rather be wrong in saying so rather than be wrong in
not saying so. Non-arbitrariness, being a necessary concomitant of the
rule of law, it is imperative that all actions of every public functionary,
E in whatever sphere, must be guided by reason and not humour, whim,
c,aprice or personal predilections of the persons entrusted with the task
on behalf of the State and exercise of all power must be for public good
instead of being an abuse of the power.
}
In view of the conclusion reached by us and the above direction
F restoring status quo ante as on 28.2. 1990, we have not gone into indi-
vidual matters brought before us. Some argument was advanced from
both sides in W.P. No. 706 of 1990 (Km. Shrilekha Vidyarthi v. State of
U. P. & Ors.), wherein the fact of renewal of petitioner's tenure is
disputed. It is unnecessary for us to go into that question also since the
order, we are making, governs the case of all Government Counsel in
G the districts throughout the State of U.P. including that of the
petitioner in this writ petition. The subsequent rights of this petitioner
also would be governed in the manner indicated above. If and when
such a situation arises, it would be open to the parties to have the
dispute, if any, adjudicated wherein the question of renewal of tenure,
claimed by the petitioner, can also be gone into.
_)..
H
L
'!
KUMAR! SHRILEKHA v, STATE OF UP, [VERMA, l] (i61
Consequently, these appeals and writ petitions are all(lwecl, The ~
impugned circular G.O. No. D-284-Seven-Law'Illi11istry elated
6.2.1990, issued by the Government of State of U.P" is qu.ashed
resulting in restoration of status quo ante as on 28:2.1990, the date
from which this circular was made effective. No costs.
B
R.S.S. Petitions and appeals allowed.
-,
:U·\
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