Holding

The Supreme Court held that the High Court's direction to renew the District Government Counsel's term and to constitute a collegium was ultra vires, and that non‑renewal is permissible unless shown to be arbitrary or mala fide, thereby allowing the appeal.

Summary

The State of Uttar Pradesh did not renew the term of Johri Mal as District Government Counsel (Criminal) despite a vacancy notice. The respondent challenged the non‑renewal, and the Allahabad High Court ordered renewal, directing that a collegium headed by the District Judge recommend the appointment. The State appealed, arguing that the DGC is a professional engagement, not a civil post, that renewal is not a statutory right, and that the High Court erred in directing a collegium and in treating the non‑renewal as unlawful. The Supreme Court held that the High Court's direction was ultra vires, that the appointment of DGCs is governed by the Code of Criminal Procedure and the Legal Remembrancer Manual, and that non‑renewal can only be set aside on grounds of arbitrariness or malice under the doctrine of Wednesbury unreasonableness. Consequently, the appeal was allowed and the High Court judgment was set aside. The Court also clarified the limited scope of judicial review under Article 226 and the meaning of "consultation" in this context.

Issues considered

The validity of the High Court's order directing renewal of the District Government Counsel's term.
Whether the appointment and renewal of a District Government Counsel constitute a civil post subject to Article 309 of the Constitution.
The applicability of the doctrine of Wednesbury unreasonableness to the State's decision not to renew the term.
The proper scope of judicial review under Article 226 in matters of administrative appointments.
The requirement of "consultation" and whether a collegium headed by the District Judge can be mandated.

Legislation cited

Code of Criminal Procedure, 1973s. Section 24, s. Section 24(1), s. Section 24(4), s. Section 24(5), s. Section 24(6)
Constitution of Indias. Article 124, s. Article 13, s. Article 14, s. Article 142, s. Article 166(3), s. Article 226, s. Article 309

Subjects

judicial reviewArticle 226District Government Counselpublic prosecutorrenewal of termadministrative lawWednesbury unreasonablenessconsultationLegal Remembrancer ManualSection 24

Judgment

A STATE OF U.P AND ANR.
v.
JOHRI MAL

APRIL 21, 2004

B [V.N. KHARE, CJ., BRIJESH KUMAR AND S.B. SINHA, JJ.]

Constitution of India, 1950-Article 226-Judicial Review under-
Scope of-Held: Power of judicial review cannot assume supervisory
C governance under rule oflaw or areas reserved by supreme lax-Also decisions
or actions not. having adjudicative disposition are not subject to judicial
review-Scope of review is limited-While exercising the power, the court is
concerned with the decision making process than merit of the decision for
which it has to reappreciate findings offacts-Furthermore, State's action is
subject to judicial review when there is a public law element-This is
D d_etermined in each case having regard to the nature and authority vested
in the State-Nature of actions cannot be generalized nor lists of actions,
either public or private, can be given.

Code of Cri"!_inal Procedure, 1973-Section 24-Uttar Pradesh Legal
Remembrancer Manual-Paras 7.01 to 7.08 and Chapter XX!:
E
District Government Counsel/Public Prosecutor.::._Appointment-Nature
of-Held: ls a professional engagement and not a civil post-It is governed
by. the provisions of Cr.P.C and/or executive instructions framed by State
Government and does not attract Article 309-Such appointment is normally
F not subject to judicial revie~Non-renewal can be subject to judicial review
on the ground of arbitrariness or malice in /~ourt would not examine
as to what impelled State not to renew the tenure but would invoke doctrine
of 'Wednesbury Unreasonableness'.

Renewal of term-Held: Cr.P.C. does not provide for renewal of term-
G Manual though provides for renewal ofterm but being compilation ofexecutive
orders is not law under Article 13 and also not covered by Article l 66(3)-
However, in such matter State is to act fairly and reasonably and is to follow
principles in the Manual-On facts, District Officer opined that tenure of
DGC not to be renewed as he did not have effective control over other ADGs
and the District Judge agreed thereto-Hence, non-renewal of term by Stcite
H 560
ST ATE v. JOHRI MAL 561
not wholly without jurisdiction and as such does not call for interference- A
Executive instructions-Administrative Law-Constitution of India, 1950-
Article 309, 13, 166(3) and 226.

District Government Counsel/Public Prosecutor-Appointment-Nature
of office-Held: District Government counsel/Public Prosecutor hold office of
great importance-DOC represents the State, thus, involves public element- B
They cannot claim right to be appointed-Article I 4 is attracted to limited
extent-Furthermore, the appointment to such a post should not be political
and State should not rescind it with the change in the Government.

District Government Counsel-Appointment and renewal of term-
'Consultation' with District Judge-lntetpretation of-On facts, direction by C
High Court regarding renewal of applicants' terms as DGC to be considered
by collegium headed by District Judge relying on Special Reference No. 1
of 1998--Correctness of-Held: Appointment of DGC cannot be equated with
the appointment of High Court and Supreme Court Judges as such reliance
on Special Reference No. 1 of 1998 not correct and High Court erred in D
directing constitution of collegium-Consultation with District Judge must
be effective one-He should take his colleagues into confidence-Further,
High Court's power under Article 226 not at par with Supreme Court's power
under Article 142-Thus, High Court cannot direct formulation of new
principle contrary to the statutory provision-Constitution of India, 1950-
Articles 226 and I 42. E
Amendment of section 24-Deletion of requirement to consult the High
Court for appointment of Public Prosecutors for High Court-Correctness
of-Held: Amendment of section 24(/) and deletion of sub sections (4), (5)
and (6) ofsection 24 is irrational-Even though Legal Remembrancer Manual
lays down exhaustive provisions being complete code in itself does not F
render any help since law cannot be substituted by executive instructions-
Section 24 being salutary, State is expected to amend the provision or
consult the High Court despite deletion.

Doctrines:
G
Doctrine of 'Wednesbury Unreasonableness'-lnvoking of

'Words and Phrases:

'Consultation'-Meaning of.

District Government Counsel (DGC) are appointed by the State ofUttar H
562 SUPREME COURT REPORTS [2004) SUPP. I S.C.R.

A Pradesh for civil, criminal and revenue courts in terms of the Legal
Remembrancer Manual and their renewal is also governed by the Manual.
Appointment of Public Prosecutor is governed by Cr.P.C., 1973. However, the
State of U.P. amended Section 24 of Cr.P.C and the requirement to consult
the High Court for appointment of Public Prosecutors for High Court under
B sub-section (1) and also sub-sections (4), (5) and (6) were deleted.

In the instant appeals, respondent No. 1 was. appointed as District
Government Counsel (DGC) at Meerut. State Government did not renew his
term as DGC, even though vacancy for the said post was notified. Respondent
No. 1 challenged the order. Division Bench of High Court directed renewal of
C respondent No. 1's term as DGC since the District Judge had recommended
in his favour. High Court referring to Special Reference No. I of 1998 further
held that the ~istrict Judge should make recommendation by a collegium
headed by himself and five judicial officers. Appellant-State filed application
for recalling the Judgement passed by High Court since the District Judge
or District M~gistrate did not recommend the case of respondent No. 1. High
D Court directed that the renewal of respondent's term as DGC should be
considered afresh by the collegium headed by District Judge. Hence the present
appeals.

Appellant-State contented that professional engagement of a lawyer
cannot be equated with appointment on a civil post; that the District Magistrate
E had not recommended renewal of respondent No.l's term as DGC; and that
the High Court erred in directing constitution of a collegium.

Respondent contended that the office of public prosecutor was public in
nature; that the High Court directed constitution of a collegium since the
F action of the State in appointment and/or renewal of the DGCs ~as arbitrary;
and that proviso appended to clause (3) of Para 7.03 that District Officer could
recommend name of person who has not supplied bio data for the appointment
but may be considered fit, is misused.

Allowing the appeals, the Coo.rt
G
HELD: 1.1. For a public law remedy.enforceable under Article 226 of
the Constitution, the actions of the authority need to fall in the realm of public
law - be it legislative act or an executive act of the State or an instrumentality
or a person or authority imbued w.ith public law element. The question.is·
required to be determined in each case having regard to the nature and extent
H · of authority vested in the State. However, the nature of the action either under
STATE v. JOHRI MAL 563

public law or private law field cannot be generalised nor is it desirable to give A
exhaustive list of such actions. 1578-B-DI

Life Insurance Corporation v. Escorts and Ors., AIR (1986) SC 1370;
F.C.I and Ors. v. Jagannath Dutta and Ors., AIR (1993) SC 1494; State of
Gujarat and Ors. v. Meghji Pethraj Shah Charitable Trust and Ors., 1199413
SCC 552; Assistant Excise Commissioner and Ors. v. Issac Peter and Ors., B
(19941 4 SCC 104 and National Highway Authority of India v. Mis Ganga
Enterprises, (2003) 7 SCALE 171, relied on.

1.2. The scope and extent of power of the judicial review of High Court
under Article 226 of the Constitution would vary from case to case, the nature
of the order, the relevant statute as also the other relevant factors including C
the nature of power exercised by the public authorities, namely, whether the
power is statutory, quasi judicial or administrative. The power of judicial review
is not intended to assume a supervisory role or done the robes of omnipresent.
It is not intended either to review governance under the rule oflaw nor do the
courts step into the areas exclusively reserved by the supreme lax to the other D ·
organs of the State. Decisions and actions which do not have adjudicative
disposition may not strictly fall for consideration before a judicial review
court. The scope of judicial review is limited. [579-G-H; 580-A)

Tata Cellular v. Union of India, (1994) 6 SCC 651; Monarch
Infrastructure (P) ltd v. Commissioner, Ulhasnagar Municipal Corporation E
and Ors., (2000) 5 SCC 287; WB. State Electricity Board v. Patel Engineering
Co. ltd. and Ors., (20011 2 SCC 451 and L.T.C and Anr. v. Consumer
Education and Research Centre and Ors., AIR (1996) SC 1811, referred to.

Council a/Civil Services Unions v. Minister for the Civil Service, (1985)
AC 374; R (Abbasi) v. Secretpry a/State of the Foreign and Commonwealth F
Office and Secretary ofState for the Home Department, (2002) EWCA Civ., 6
November 2002 and Ira Munn v. State of Ellinois, (1876) 94 US (Supreme
Reports) 113, referred to.

Administrative Law by Wade, 8th Edition pp.33-35, referred to.
G
1.3. It is well-settled that while exercising the power of judicial review,
the Court is more concerned with the decision making process than the merit
of the decision itself. But while examining and scrutinizing the decision
making process, it becomes inevitable to also appreciate the facts of a given
case as otherwise the decision cannot be tested under the grounds of illegality, H
564 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A irrationality or procedural impropriety. How far the court of judicial review
can reappreciate the fmdings of facts, depends on the ground of judicial review.
Therefore, to a limited extent of scrutinizing the decision making process, it
is always open to the Court to review the evaluation of facts by the decision
maker. (581-E-H; 582-A-B)

B Chief Constable of the North Wales Police v. Evans, (1982) 3 ALL ER
141, referred to.

Administrative Law by Prof Bernard Schwartz III Edn. Little Brown
Company 1991; Judicial Remedies in Public Law by Prof Clive Lewis 1992
C Edn. pp. 294-552; Applications for Judicial Review, Law and Practice by
Grahame Aldous and John Alder; Administrative Law by Wade 8th Edition
pp. 551-552, referred to.

2.1~ The Legal Remembrancer Manual clearly states that the
appointment of a public prosecutor or a district counsel would be professional
D in nature. It is beyond any cavil that the holder of an office of the public
prosecutor does not hold a civil post. By holding a post of district counsel or
the public prosecutor, neither a status is conferred on the incumbent. So far
as Assistant Public prosecutors are concerned, they are employees of the State
and hold civil posts. They are answerable for their conduct to higher statutory
authority. Their appointment is governed by the service rules framed by the
E respective State Government. (584-D-F]

Samarendra Das, Advocate v. The State of West Bengal and Ors., JT
(2004) 2 SC 413, relied on.

2.2. The appointments of Public Prosecutors are governed by Cr.P.C.
F and/or the executive instructions framed by the State governing the terms of
their appointment. Proviso appended to Article 309 ofthe Constitution is not
applicable in their case. Their appointment is a tenure appointment. Public
Prosecutors, furthermore, retain the character of legal practitioners for all
intent and purport. They, of course, discharge public functions and certain
G statutory powers are also conferred upon them. Their duties and functions
are onerous but the same would not mean that their conditions of appointment
are governed by any statute or statutory rule. (584-G-H; 585-A)

2.3. So long as in appointing a counsel the procedures laid down under
the Cr.P.C. are followed and a reasonable or fair procedure is adopted, the
H Court will normally not interfere with the decision. The nature of office being
ST ATE v. JOHRI MAL 565

professional in nature, courts are normally charry to over-turn any decision, A
unless an exceptional case is made out. Cr.P.C. does not speak of renewal or
extension of tenure. The incumbent has no legal enforceable right for renewal
of its term. The action of the State in not renewing the tenure can be subjected
to judicial scrutiny inter alia on the ground of arbitrariness and malice in
law. The courts normally would not delve into the records with a view to
ascertain as to what impelled the State11ot to renew the tenure of a public B
prosecutor or a district counsel. The jurisdiction of the courts in acase of
this nature would be to invoke the doctrine of'Wednesbury Unreasonableness' •.
(585-B-El

Associated Picture House v. Wednesbury Corporation, (1947) 2 All ER C
640, referred to.

Om Kumar and Ors. v. Union of India, (20011 2 SCC 386, referred to.

2.4. Cr.P.C. does not provide for renewal or extension of a term. The.
Legal Remembrancer Manual provides for renewal of the term but it contains
executive instructions which even do not meet the requirements of clause (3) · D
of Article 166 of the Constitution and is not a law within the meaning of Article
13 of the Constitution. Evidently, the Legislature thought it fit to leave such'
matters at the discretion of the State in which State is required to act fairly
and reasona~ly. The State normally would be bound to follow the principles
laid down in the Legal Remembrancer Manual. (586-E-Fl E
Union of India v. Naveen Jindal, JT (2004) 2 SC I, relied on.

2.5. The State, while appointing a counsel, must take into account the
following fundamental principles which are required to be observed that good
and competent lawyers are required to be appointed for (i) good administration
of justice; (ii) to fulfil its duty to uphold the rule of law; (iii) its accountability F
to the public; and (iv) expenditure from the tax payers' money. No appointment
of public prosecutors or district counsel should, thus, be made either for
pursuing a political purpose or for giving some undue advantage to a section
of people. Retention of its counsel by the State must be weighed on the scale
of public interest. State should replace an efficient, honest and competent G
lawyer, inter alia, when it is in a position to appoint a more competent lawyer.
In such an event, even a good performance by lawyer may not be of much
importance. [586-B-El

3.1. The District Government counsel appointed for conducting civil as
also criminal cases hold offices of great importance. They are not only officers H
566 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A of the court but also the representative of the State. On the other hand, Public
Prosecutors have greater responsibility. They are required to perform
statutory duties independently having regard to various provisions contained
in the Cr.P.C and in particular Section 320 thereof. (59~F-GJ

3.2. The holders of the post of Government counsel have a public duty
B to perform. They represent the interest of general public before a court of
law. Public element is, thus, involved therein. However, in the matter of
engagement of a District Government Counsel, a concept of public office does
not come into play. It is the choice of the Government and none can claim a
right to be appointed because it is a position of great trust and confidence.
C However, Article 14 will be attracted to a limited extent as the functionaries
named in the Cr.P.C. are public functionaries. They also have a public duty to
perform. If the State fails to discharge its public duty or act in. defiance,
deviation and departure of the principles of law, the court may interfere. Court
may also interfere when the legal policy laid down by the Government for the
purpose of such appointments is departed from or mandatory provisions of
D law are not complied with and also if a holder of a public office is sought to be
removed for reason de'hors the statute. Furthermore, the appointment such a
post must not be political one. Legal Remembrancer's Manual clearly forbids
appointment of such a lawyer and/or if appointed, removal from his office.
Therefore, District Judge and District Magistrate are duty bound to see that
no recommendation is ma.de earlier nor there is any political affinity. State is
E not expected to rescind the appointments with the change in the Government.
(597-E-H; 598-CJ •.

3.3. The Public Prosecutors and the Government Counsel play an
important role in administration of justice. Efforts are required to be made to
F improve the management of prosecution in order to see that innocent persons
may not be convicted as well as an accused guilty of commission of crime
does not go unpunished and also release or direct the use of non:.punitive
methods of treatment of those whose cases would best be processed.
Maintenance of law and order in the society and, thus, to some extent
maintenance of rule of law which is the basic fibre for upholding the rule of
G democracy lies in their hands. The prosecutors should not be over-burdened
with too many cases of widely varying degree of seriousness with too few
assistants and inadequate financial resources. (596-H; 597-A-B-CJ

4. The District Officer was of the opinion that in a district like Meerut
the term of the appointment of respondent no. 1 should not be extended as he
H has no effective control over the other ADGs for 'taking steps'. The approach
STATE v. JOHRI MAL [SINHA, J.) 567

of the District Officer cannot be said to be wholly irrational since the District A
Government Counsel is required to discharge certain administrative functions.
District Judge, Meerut has also agreed thereto. Therefore, the action on the
part of the State, cannot be said to be wholly without jurisdiction requiring
interference by High Court in exercise of its power of judicial review. High
Court has based its decisions on the wrong premise that the District B
Magistrate recommended the renewal of respondent no. l's term as DGC and
as such the impugned judgment cannot be sustained. [588-C-F)

5.1. Appointment of the District Government Counsel cannot be equated
with the appointments of the High Court and the Supreme Court Judges. A
distinction must be made between professional engagement and a holder of C
high public office. Various doctrines and the provisions of the Constitution
which impelled this Court to give meaning of 'consultation' as 'concurrence'
and wherein the Chief Justice oflndia will have a primacy, cannot be held to
be applicable in the matter of consultation between the District Magistrate
and the District Judge for the purpose of preparation of a panel of the District
Government Counsel. The consultation with the District Judge must be an 0
effective one. The District Judge in turn would be well advised to take his
colleagues into confidence so that only meritorious and competent persons
who can maintain the standard of public office, can be found out. (589-D-F)

Supreme Court Advocates-on-Record Association and Ors. v. Union of
India, (1993) 4 SCC 441 and In Special Reference No. 1 of(l998), Re, (1998) E
7 sec 739, distinguished.

5.2. The power under Article 226 of the Constitution is not at par with
the constitutional jurisdiction conferred upon this Court under Article 142
of the Constitution. High Court has no jurisdiction to direct formulation of a F
new legal principle or a new procedure which would be contrary to and
inconsistent with a statutory provision like Cr.P.C. (589-G-H)

State of Himachal Pradesh v. A Parent ofa Student ofMedical College,
Simla and Ors., (1985) 3 SCC 169 and AsifHameed and Ors. v. State ofJammu
and Kashmir and Ors., 119891Supp.2 sec 364, relied on. G
Guruvayoor Devaswom Managing Committee and Anr. v. C.K. Rajan
and Ors., (2003) 7 SCC 546, referred to.

6. There does not exist any rationale behind deletion of the provision
relating to consultation with the High Court in the matter of appointment of H
568 SUPREME COURT REPORTS [2004] SUPP. l S.C.R.

A the Public Prosecutors in the High Court The said provision being a salutary
one, it is expected that the State of U.P. either would suitably amend the same
or despite deletion shall consult the High Court with a view to ensure fairness
in action. The submission of the State that such a step had been taken having
regard to the fact that exhaustive provisions .are laid down in Legal
B Remembrancer Manual which is a complete code in itself cannot be accepted
as a law cannot be substituted by executive instructions which may be subjected
to administrative vagaries. The executive instructions can be amended, altered
or withdrawn at the whims and caprice of the executive for the party in power.
It is beyond any cavil that executive instructions do not carry the same status
as of a statute. State should bear in mind the dicta of this Court as regards
C the necessity to consult the District Judge. Therefore, while making
appointments of District Government Counsel, State should give primacy to
the opinion of the District Judge. Such a course of action would demonstrate
fairness and reasonableness of action and, furthermore, to a large extent the
action of the State would not be dubbed as politically motivated or otherwise
D arbitrary. (600-A-E]

Kumari Shri/ekha Vidyarthi and Ors. v. State ofU.P. and Ors., (1991) 1
SCC 212; Mukul Dalal and Ors. v. Union of India and Ors., (1998] 3 SCC
144; Mundrika Prasad Singh v. State of Bihar, [1979) 4 SCC 701; State of
U.P. v. Ramesh Chandra Sharma and Ors., (1995) 6 SCC 527; Harpal Singh
E Chauhan and Ors. v. State of U.P., (1993) 3 SCC 552 and State of U.P. v. UP.
State Law Officers Association and Ors. etc., (1994) 2 SCC 204, referred to. ..
7.l. The proviso appended to clause (3) of Para 7.03 was evidently made
having regard to the fact that an advocate having a deep sense of self-respect
may not file any application for his appointment as a District Government
F Counsel despite calling for applications by the District Magistrate in this
behalf. The District Magistrate in a given situation may have to persuade very
compe!enf persons to take the offer in public interest as also in the interest
of tile State. But recourse to the said provision cannot be resorted to for
'general appointments but only in very exceptional cases in consultation with
the District Judge. (599-B-D)
G
7.2. A submission of bio data on the part of the advocate pursuant to
issuance of a notice for appointment of Public Prosecutor~ therefor by the
District Magistrate or the District.Judge would not amount to soliciting briefs
within the meaning of Rule 36 of the Bar Council of India Rules as the
H advocates would notfile any application on their own. [598-H; 599-A]
STATE v. JOHRI MAL [SINHA, J.] $69
B. Rajeswar Reddy and Ors. v. K.N. Narasimhachari and Ors., (2001) 6 A
ALT 104, approved.

Harpal Singh Chauhan and Ors. v State of U.P., (1993) 3 SCC 552,
referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 963-64of2000. B
From the Judgment and Order dated 11.12.98 of the Allahabad High
Court in C.M.W.P. No. 34064of1998

WITH

C.A. Nos. 967, 968, 970, 976-77, 975, 972, 973, 969, 974, 971, 965, 966/.2000
c
and 6549of1999.

Ranjit Kumar, R.C. Srivastava, Ashok K. Srivastava, R.N. Keshwani,
(NP), Ms. Binu Tamta, J.M. Sharma, Ms. Abba, R. Sharma, Ms. Sandhya
Goswami, T.N. Singh, S.P. Sharma, Ashwilti Bhardwaj, Abhishek Atrey, Subrat D
Birla, S.C. Birla, Y.P. Dhamija and Ms. Rachna Srivastava for the appearing
parties.
The Judgment of the Court was delivered by
S.B. SINHA, J.
... IN1RODUCTION:
E

A short but interesting question as regards interpretation of Section 24
of the Code of Criminal Procedure and the relevant provisions of Legal
Remembrancer's Manual relating to appointment and renewal of term of the
District Government Counsel is in que~tion in this batch of appeals whi¢h F
arise out of various judgments and orders passed by the Allahabad High
Court inC.M.W.P. Nos. 34064, 19513, 34074, 26613,40945,41178, 5665,41180,
5667 of 1998, 9809 of 1992, 9203 of 1998, 3100, 3102 of 1999 and 6754 of 1998.
FACTUAL BACKDROP:
G
The State of Uttar Pradesh appoints District Government Counsel (DG<t)
for civil, criminal and revenue courts in terms of the Legal Remembrancer
Manual.

Appointment of Public Prosecutor is governed by the Code of Criminal
Procedure, 1973. The State ofUttar Pradesh, however, amended Section 24 of H
570 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A the Code of Criminal Procedure in terms whereof the requirements to consult
the High Court for appointment of Public Prosecutors for the High Court as
contained in sub-section (1) of Section 24 as also sub-sections (4), (5) and
(6) thereof were deleted. Renewal of terms of the District Government Counsel,
are, however, governed by Legal Remembrancer Manual.

B The first respondent herein was appointed as District Government
Counsel.(DGC) (Criminal) at Meerut on or about 7.01.1983. The said post is
deemed to be that of Public Prosecutor '"'.ithin the meaning of Section 24 of
the Code of Criminal Procedure. His term was renewed by an order dated
12.03.1996. He was again appointed in the same capacity by an order dated
C 17 .09.1997 for a period of one year. Before expiry of the said period, the
respondent applied for renewal of his tenure. Allegedly, the District Judge and
the District Magistrate did not recommend therefor. The State Government
decided not to renew the term of the respondent as DGC (Criminal) and by
an order dated 18.9.1998 he was relieved from the charge of the said post. By
a notification dated 17.09 .1998, the vacancy was advertised w!tereafter the
D respondent filed a writ petition before the Allahabad High Court inter a/ia
praying for quashing the said order dated 18.09.1998. In the said writ petition,
the contention of the respondent was that as the District Magistrate as also
the District Judge had recommended for renewal of his tenure as DGC (Criminal)
having found his conduct and work satisfactory, the renewal ought to h~ve
E been granted as a matter of course.

Despite opportunities granted in that behalf, the appellants, ho".Vever,
did not file any return.

By reas_on of judgment dated 11.12.1998, a Division Bench of t~e
F Allahabad High Court allowed t~e said writ application holding:

"In the present case the District Judge has recommended in favour of
the petitioner and no good or cogent reason has been assigned for
rejecting the recommendation of the District Judge. Hence we direct
the petitioner's term as DGC (Criminal) to be renewed forthwith by the
G State Government."

The learned Judges further opined:

"The Supreme Court has observed in Special Reference No. I of 1998
that the Chief Justice of India means not the Chief Justice of India
alone but in consultation with his four senior most colleagues. No
H
STATE v. JOHRI MAL [SINHA, J.] 571

doubt this judgment was given in the context of appointments of A
Judges in the Supreme Court and High Courts, but in our opinion the
spirit of the judgment is applicable to the present case also since the
intention was to keep the administration of justice away from political
considerations. Hence in our opinion the District Judge should not
make the recommendation alone but in consultation with the two
senior most Judicial Officers in the District Court and also the CJM B
in the case of recommendations for appointments in the Criminal side,
and the senior most Civil Judge for appointments on the Civil side,
and also the District Magistrate. In other words the recommendation
shall be by a collegium headed by the Oistrict Judge and consisting
of the above mentioned five members (consisting of four judicial C
officers and the District Magistrate). If two members disapprove the
name, no recommendation will be made. No name will be recommended
if the District Judge disapprov~s. This, in our opinion, will be in
· accordance with the norms laid down in the L.R. Manual. Such a
recommendation will ordinarily be treated as binding on the Government
unless for some strong, cogent reasons to be recorded in writing if D
the Government disagrees. We again make it clear that the
recommendation must be made purely on merit and competence
ignoring caste, creed, religion or political affiliation."

Contending that the said judgment contains an error of record as the
case of the first respondent had not been recommended by the District Judge E
or the District Magistrate concerned, an application for recalling of the ,
judgment was filed by the appellant herein but the same was disposed of ,
directing that the question regarding renewal of the respondent's term as DGC
(Criminal) shall be considered afresh by the collegium headed by the District
Judge constituted in the said judgment and the State Government shall act F
on the recommendations thereof.

SUBMISSIONS:

Mr. Ashok Kumar Srivastava, learned counsel, appearing on behalf of
the appellant, would urge that the High Court proceeded on a wrong premise G
that the recommendations for renewal of terms of D.G.C. (Crl.) had been made
by the District Magistrate in favour of the first respondent. Our attention in
this behalf has been drawn to the opinion of the District Judge dated I I th
September, 1998 as also the letter of the District Magistrate, Meerut, addressed
to the Principal Secretary, Justice and Legal Remembrancer, Government of H
572 SUPREME COURT REPORTS (2004) SUPP. I S.C.R.

A Uttar Pradesh, Lucknow, dated 12.9.1998.

The learned counsel would submit that as the appointment of public
prosecutor is governed by the provisions of the Code of Criminal Procedure
and renewal thereof by the Uttar Pradesh Legal Remembrancer, the High Court
committed a manifest error in directing constitution of a collegium headed by
B a member of Judiciary ..

Mr. Srivastava would argue that having regard to the fact that
professional engagement of a lawyer cannot be equated with appointment on
a civil post as there exists a relationship of cl!ent and the lawyer between the
State and the public prosecutor, the High Court was not correct in issuing the
C impugned directions. Reliance in this behalf has been placed on Harpal Singh
Chauhan and Ors. v. State of U.P.•. [1993) 3 SCC 552, State of U.P. and Ors.
v. U.P. State Law Officers Association and Ors., [1994) 2 SCC 204 and State
ojU.P. v. Ramesh Chandra Sharma and Ors., [1995) 6 SCC 527.

D Mr. Ranjit Kumar, learned senior counsel, appearing on behalf of the
respondent, on the other hand, would submit that the High Court felt the need
to constitute a collegium keeping in view of the fact that the action on the
part of the State in appointment and/ or renewal of the DGCs was found to
be arbitrary.

E The learned counsel would submit that the public prosecutors look after
the prosecution works and, thus, the nature of office would be a public in
nature having regard to the fact that they discharge public functions.

Statutory Provisions:

F Sub-Sections (2) to (6) of Section 24 of Code of Criminal Procedure read
thus:

"(2) The Central Government may appoint one or more Public
Prosecutors, for the purpose of conducting any case or class of cases
in any district, or local area.
G
(3) For every district, the State Govternment shall appoint a Public
Prosecutor and may also appoint one or more Additional l'ublic
Prosecutors for the district.

Provided that the Public Prosecutor or Additional Public Prosecutor
H appointed for one district may be appointed also to be a Public
STATE v. JOHRI MAL [SINHA, J.] 573
Prosecutor or an Additional Public Prosecutor, as the case may be, for A
another district.

(4) The District Magistrate shall, in consultation with the Sessions
Judge, prepare a panel of names of persons, who are, in his opinion,
fit to be appointed as Public Prosecutor or Additional Public
Prosecutors for the district. B
(5) No person shall be appointed by the State Government as the
Public Prosecutor or. Additional Public Prosecutor for the district
unless his name appears in the panel of names prepared by the
District Magistrate under sub-section (4).

(6) Notwithstanding anything contained in sub-section (5), where in
c
a State there exists a regular Cadre of Prosecuting Officers, the State
Government shall appoint a Public Prosecutor or an Additional Public
Prosecutor only from among the persons constituting such Cadre:

· Provided that where, in the opinion of the State Government, no D·
suitable person is available in such Cadre for such appointment that
the Government may appoint a person as Public Prosecutor or
Additional Public Prosecutor, as the case may be, from the panel of
names prepared by the District Magistrate under sub-section (4)."

However, the State of U.P. by Act No. 18 of 1991 with effect from E
16.2.1991 amended Sub-Section (I) of Section 24 of the Code of Criminal
Procedure in the following terms:

"in sub-section (I), the words "after consultation with the High Courts"
shall be omitted;"
F
By reason of the said Act, Sub-Sections (4), (5) and (6) of Section 24
have also been omitted.

Para 7.01 of Legal Remembrancer's Manual defines the District
Government Counsel to mean legal practitioners appointed by the State
Government to conduct in any court such civil, criminal or revenue cases, as G
may be assigned to them either generally, or specially by the Government. The
legal practitioner appointed to conduct civil, criminal or revenue cases, shall
be known as District Government Counsel (Civil), (Criminal) or (Revenue), as
the case may be.

H
574 SUPREME COURT REPORTS [2004) SUPP. I S.C.R.

A Para 7.02 of the Manual lays down the power of the Government to
appoint Government Counsel for each district in the State. Para 7.03 provides
that whenever a post of any Government Counsel is likely to fall vacant within
the next three months or when a new post is created, the District Magistrate
shall notify the vacancies to the members of the Bar? the qualification wherefor
B would be practice of 10 years in case of District Government Counsel, 7 years
in case of Assistant District Government Counsel and 5 years in case of Sub-
District Government Counsel. Clause (3) of Para 7.03 reads thus:

"(3) The names so received shall be considered by the District Officer
in consultation with the District Judge. The District Officer shall give
c due weight to the claim of the existing incumbents (Additional/Assistant
District Government Counsel], if any, and shall submit confidentially
in order of preference the ·names of the legal practitioners for each
post to the Legal Rememberancer giving his own opinion particularly
about his character, professional conduct and integrity and the opinion
of the District Judge on the suitability and merits, of each candidate.
D While forwarding his recommendations to the Legal Rememberancer,
the District Officer shall also send to him the bio data submitted by
other incumbents with such comments as he and the District Judge
may like to make. In making the recommendations, the proficiency of
the candidate in civil or criminal or revenue law, as the case may be,
as well as in Hindi shall particularly be taken into consideration:
E
Provided that it will also be open to the District Officer to recommend
the name of any person, who may be considered fit, even though he
may not have formally supplied his bio data for being considered for
appointment. The willingness of such a person to accept the •.
appointment, if made shall, however, be obtained before his name is
F
recommended."

Para 7 .04 of the said Manual provides that on receipt of the
recommendations C1fthe District Officer, the Legal Remembrancer may make
further enquiry and submit the recommendations as also for orders of the
G State Government. The decision of the State Government would be final. Para
7.05 prohibits canvassing by or on the part of a candidate which would entail
•
disqualification.

Paras 7.06, 7.07 and 7.08 read thus:

H "7 .06. Appointment and renewal- (I) The legal practitioner finally
STATE v. JOHRI MAL [SINHA, J.] 575
selected by the Government may be appointed District Government A
Counsel for one year from the date of his taking over charge.

(2) At the end of the aforesaid period, the District Officer after
consulting the District Judge, shall submit a report on his work and
conduct to the Legal Remembrancer together with the statement of
work done in Form no. 9. Should his work or conduct be found to be ,B
unsatisfactory, the matter shall be reported to the Government 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. l for a
term not exceeding three years. On his first engagement a copy of
Form no. 2 shall be supplied to him and he shall complete and return
it to the Legal Remembrancer for record. C
(3) The appointment of any legal practitioner as a District
Government Counsel is only professional engagement terminable at
will on either side and is not appointment to a post under the
Government. Accordingly the Government reserves the power to D
terminate the appointment of any District Government Counsel at any
time without assigning any cause.

7.07. Political Activity-The District Government Counsel shall not
participate in political activities so long as they work as such; otherwise
they shall incur a disqualification to hold the post. E
Note: The term political activity includes membership of any political
party or local body as also press reporting work.

7.08. Renewal ofterm-(l) At least three months before the expiry of
the term of a District Government Counsel, the District Officer shall,
after consulting the District Judge and considering his past record of E
work, conduct and age, report to the Legal Remembrancer, together
with the statement of work done by him in Form No. 9 whether in his
opinion the term of appointment of such counsel should be renewed
or not. A copy of the opinion of the District Judge should also be
sent along with the recommendations of the District Officer. G:
(2) Where recommendation for the extension of the term of a District
Government Counsel is made for a specified period only, the reasons
therefor shall also be stated by the District Officer.

(3) While forwarding his recommendation for renewal of the term of H
576 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A a District Government Counsel -

(0 the District Judge shall give an estimate of the quality of the
Counsel's work from the Judicial stand point, keeping in view the
different aspects of a lawyer's capacity as it is manifested before
him in conducting State cases, and specially his professional
B conduct; and •
(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.
c (4) If the Govemme~t agrees with the recommendations of the District
Officer for the renewal of the term of the Government Counsel, it may
pass orders for re-appointing him for a period not exceeding three
years.

(5) If the Government decides not to re-appoint a Government Counsel,
D the Legal Remembrancer may call upon the District Officer to forward
fresh recommendations in the manner laid down in-para 7.03.

(6) The procedure prescribed in this para shall be followed on the
expiry of every successive period of renewed appointinent of a District
Government Counsel."
E
A supplementary provision has been made in Chapter XXI of the said
Manual for appointment and renewal of the post of public prosecutors. It
inter a/ia contains the guidelines and clarifies that the appointment of DGC
/ (Criminal), the change of designation of the public prosecutors could not
F effect the basic m~ture of their professional engagement. It further provides
that such professional engagement is teim~nated on either side without notice
and without assigning any reason. It is stated that the appointment of public
prosecutor and Additional· Prosecutor both for the High Court and District,
shall be made in accordance with Section 24 of the new Code. Para 21.04
provides for constitution of a panel of·five years against each vacancy. It
G mandates that the State Government shall appoint an Additional .Public
Prosecutor out of the names appeared in the panel. Paras 21.07 and 21.08 of
the said Manual read as under:

"21.07. The appointment of Public Prosecutor or Additional Public
Prosecutor shall be made for the period of.three years, but· the State
H
ST ATE v. JOHIU MAL [SINHA, J.) 577
Government can tenninate such appointment at any time without A
notice and without assigning any reason. The State Government may
extend the period of such appointment from time to time and such
extension of such term shall not be treated as new appointment.

21.08. The District Magistrate shall, after consultation with the Sessions
Judge, submit a confidential report in respect of the Public Prosecutor B
and Additional Public Prosecutors giving details about the percentage
of success of cases conducted by them and the general reputation
which they enjoy. Where the percentage of success is low, the reasons
given by the Public Prosecutor or Additional Public Prosecutor for the
same should also be commented on. After every three years he shall C
make a special assessment of each such Public Prosecutor or Additional
Publi~ Prosecutor and recommend whether the person concerned
should be granted extension for a further tenn of three years or for
a shorter tenn only."

The provisions of the Code of Criminal Procedure which are statu.tory D
in nature, govern the field. The State of Uttar Pradesh, however, for reasons
best known to it, amended Sub-Section (I) of Section 24 of the Code of
Criminal Procedure as a result whereof, the State is not required to consult
the High Court before appointing a Public Prosecutor for the High Court.
Similafly, Sub-Sections (4), (5) and (6) of Section 24 have also been deleted
purported to be on the ground that similar provisions exfot in the Legal E
Remembrancer Manual. The Legal Rememberancer Manual is merely a
compilation of executive orders and is not a 'law' within the meaning of
Article 13 of the Constitution of India.

JUDICIAL REVIEW:
F
The power ofjudicial review is now well-defined in a series of decisions
of this Court. It is trite that the court will have no jurisdiction to entertain a
writ application in a matter governed by contract qua contract (assuming such
professional engagement to be one), as therein public law element would not
be involved. (See life Insurance Corporation v. Escorts ltd. and Ors., AIR G
(1986) SC 1370, F.C./. and Ors. v. Jagannath Dutta and Ors., AIR (1993) SC
1494, State of Gujarat and Ors. v. Meghji Pethraj Shah Charitable Trust and
Ors., [1994] 3 SCC 552, Assistant Excise Commissioner and Ors. v. lssac Peter
and Ors., [1994] 4 SCC 104 and National Highway Authority of!ndia v. Ml
s. Ganga Enterprises and Anr., (2003) 7 SCALE 171)
H
578 SUPREME COURT REPORTS [2004) SUPP. I S.C.R.

A In any event, the modem trend also points to judicial restrai.nt in
administration action as has been h~ld in Tata Cellular v. Union of India,
(1994] 6 SCC 651. (See also Monarch Infrastruct11re (P) Ltd v. Commissioner,
Ulhasnagar Municipal Corporation and Ors., (2000] 5 SCC 287 and W.B.
State Electricity Board v. Patel Engineering Co. ltd and Ors., (2001] 2 SCC
B 451 and.l./.C. and Anr. v. Consumer Education and Research Centre and
Ors., AIR (1995) SC 181 l.

The legal right of an individual may be founded upon a contract or a
statute or an instrument having the force of law. For a public law remedy
enforceable under Article 226 of the Constitution, the actions of the authority
C need to fall in the realm of public law-be it a legislative act or the State, an
executive act of the State or an instrumentality or a person or authority .
imbued with public law element. The question is required to be determined
in each case having regard to the nature and extent of authority vested in the
State. However, it may not be possible to generalize the nature of the action
which would come either under public law remedy or private law field nor is
D it desirable to give exhaustive list of such actions.

In Council of Civil Services Unions v. Minister for the Civil Service,
(1985) AC 374 while ei:c.tending the scope of judicial review, the House of
Lords decided that judicial review should not be available if the particular
E decision under challenge was ~ot justiciable. However, in granting relief the
Court shall take into consideration the factors like national security issue. In
Constitution Reform in the UK by Qawn Oliver, it is stated at page 210:

"In the CCSU case the House of Lords decided that judicial review
should not be available ifthe particular decision·under challenge was
not justiciable. In effect they respected the political Constitution and
F deferred to government in some .sensitive areas. In ·this case the
Government was. alleging that for them to have consulted the unions
before the decision was taken; would have provoked industrial action
.at GCHQ, which would in tum have been damaging to national security.
In the view of the House of Lords. this made an otherwise reviewable
G decision not suitable for judicial review -:- ·.not j~sticiable. Other
decisions taken under the royal prerogative, which the co~rt indicated,
would be non-justiciable, included treaty making and foreign affairs.
Despite the outcome of the CCSU that the prerogative is.in principle
reviewable and that were it not for the national security issue the ·
government should have consulted the unions before imposing these
H

/
STATE v. JOHRI MAL [SINHA, J.] 579

changes was a major step forward in the judicialization of government A
action, including the actual conduct of government, and a step away ·
from the political Constitution."

However, we may notice that judicial review was held to be available
when justic_iability of foreign relations came to be considered in R. (Abbasi)
v. Secretary ofState for the Foreign and Commonwealth Office and Secretary B
of State for the Home Department, (2002) EWCA Civ., 6 November 2002
stating:

"Although the statutory context in which Adan was decided was
highly material, the passage from Lord Cross' speech in Cattermole
supports the view that, albeit that caution must be exercised by this C
Court when faced with an allegation that a foreign state is in breach
of its international obligations, this Court does not need the statutory
context in order to be free to express a view in relation to what it
conceives to be a clear breach of its international obligations, this
Court does not need the statutory context in order to be free to D
express a view in relation to what it conceives to be a clear breach
of international law, particularly in the context of human rights."

In Council of Civil Services Unions v. Minister of Civil Service, the
power of judicial review was restricted ordinarily to illegality, irrationality and
impropriety, stating: E
"If the power has been exercised on a non-considerati~n or non-
application of mind to relevant factors, the exercise of power wi:. be
regarded as ·manifestly erroneous. If a power (whether legislative or
administrative) is exercised on the basis of facts which do not exist
and which are patently erroneous, such exercise of power will stand F
vitiated."

The scope and extent of power of the judicial review of the High Court
contained in Article 226 of the Constitution of India would vary from case to
case, the nature of the order, the relevant statute as also the other relevant
factors including the nature of power exercised by the public authorities, G
namely, whether the power is statutory, quasi judicial or administrative. The
power of judicial review is not intended to assume a supervisory role or done
the robes of omnipr~sent. The power is not intended either to review
governance under the rule of law nor do the courts step into the areas
exclusively reserved by the suprema lex to. the other organs of the State. H
580 SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.

A Decisions and actions which do not have adjudicative disposition, may not
strictly fall for consideration before a judicial review court The limited scopes
of judicial review succinctly put are :

(i) Courts, while exercising the power of judicial review, do not sit
in appeal over !he decisions of administrative bodies;
B (h) a petition for a judicial review would lie only on certain well-
defined grounds;
(fu) an order passed by an administrative authority exercising
discretion vested in it, cannot be interfered in judicial review
unless it is shown that exercise of discretion itself is perverse or
c illegal;
(iv) a mere wrong decision without anything more is not enough to
attract the power of judicial review; the supervisory jurisdiction
conferred on a Court is limited to seeing that Tribunal functions
within the limits of its authority and that its decisions do not
D occasion miscarriage of justice; and
(v) the Courts cannot be called upon to undertake the Government
duties and functions. The Court shall not ordinarily interfere with
a policy decision of the State. Social and economic belief of a
Judge should not be invoked as a substitute for the judgment of ..
E the legislative bodies. (See Ira Munn v. State of Ellinois, (1S76)
94 US Supreme Reports 113)

In Wade's Administrative Law, 8th edition at pages 33-35, it is stated:

"Review, Legality and discretion- The system of judicial review is
F radically different from the system of appeals. When hearing an appeal,
the court is concerned with the merits of a decision: is it correct?
When subjecting some administrative act or order to judicial review,
· the court is concerned with its legality: is it within the limits of the
powers granted?'On an· appeal the question is 'right or wrong?' On
review the question is 'lawful or unlawful?'
G
Rights of appeal are always statutory. Judicial review, on the other
hand, is the exercise of the court's inherent power to detem:iine whether
action is lawful or not and to award suitable relief. For this no statutory
authority is necessary: the court ·is simply performing its ordinary
functions in order to enforce the law. The basis of judicial review,
H
STATE v. JOHRI MAL (SINHA, J.] 581

therefore, is common law. This is none the less true because nearly A
all cases in administrative law arise under some Act of Parlial!'ent.
Where the Court quashes an order made by a minister under some
Act, it typically uses its common law power to declare that the Act
did not entitle the minister to do what he did and that he was in some
way exceeding or abusing his powers.
B
Judicial review thus is a fundamental mechanism for keeping public
authorities within due bounds and for upholding the rule of law.
Instead of substituting its own decision for that of some other body,
as happens when on appeal, the court on review is concerned only
with the question whether the act or order under attack should be C
allowed to stand or not. If the Home Secretary revokes a television
licence unlawfully, the court may simply declare that the revocation
is null and void. Should the case be one involving breach of duty
rather than excess of power, the question will be whether"the public
authority should be ordered to make good a default. Refusal to issue
a television licence to someone entitled to have one would be remedied D
by an order of the court requiring the issue of the licence. If
administrative action is in excess of power (ultra vires), the court has
only to quash it or declare it unlawful (these are in effect the same
thing) and then no one need pay any attention to it. The minister or
tribunal or other authority has in law done nothing, and must make E
a fresh decision."

It is well-settled that while exercising the power of judicial review, the
Court is more concerned with the decision mciking process than tr.e merit of
the decision itself. In doing so, it is often argued by the defender of an
impugned decision that the Court is not competent to exercise its power when F
there are serious disputed questions of facts; when the decision of the
Tribunal or the decision of the fact finding body or the arbitrator is given
finality by the statute which governs a given situation or which, by nature.
of the activity the decision maker's opinion on facts is final. But while
examining and scrutinizing the decision making process, it becomes inevitable
to also appreciate the facts of a given case as otherwise the decision cannot G
· be tested under the grounds of illegality, irrationality or procedural impropriety.
How far the court of judicial review can reappreciate the findings of facts
depends on the ground of judicial review. For example, if a decision is
chatlenged as irrational, it would be well-nigh impossible to record a finding
whether a decision is rational or irrational without first evaluating the facts H
582 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A of the case and coming to a plausible conclusion and ·then testing the
decision of the authority on the touch-stone of the tests laid down by the
Court with special reference to a given case. This position is well settled in
Indian administrative law. Therefore, to a limited extent of scrutinizing the
decision making process, it is always open to the Court to review the evaluation
B of facts by the decision maker.

In Chief Constable of the North Wales Police v. Evans, (1982) 3 All ER
141, the. law is stated in the following terms:

" ... The purpose of judicial re,·iew is to ensure that the individual
receives fair treatment, and not -to ensure that the authority, after
c according fair treatment, reaches on a matter which it is authorized or
enjoined by law to decide for itself a conclusion which is correct in
the eyes. of the court."

Prof. Bernard Schw~rtz in his celebrated book (Administrative Law, III
D Edn. Little Brown Company 1991) dealing with the present status of judicial
review in American context, summarized as under:

"If the scope of review is too broad, agencies are turned into little
more than media for the transmission of cases to the /Courts. That
would destroy the values of agencies, created to secure the benefit
of special knowledge acquired through continuous administration in
E
the complicated fields. At the same time, Court should not rubber-
stamp agencies; the scope of judicial enquiry must not be so restricted
that it prevents full enquiry into the action of legality. If that question
cannot be properly explored by the Judge, the right to review becomes
meaningless .. .in the final analysis, the scope of review depends on
F the individual judges estimate of the justice of the case." · ·

Prof. Clive Lewis in his book (Judicial Remedies in Public Law 1992 Edn.
At p. 294-295)

"The Courts now recognise that the impact on the administration is
G relevant in the exercise of their remedial jurisdiction' ... Earlier cases
took a robust line that the law has to be observed and the decision
invalidated, whatever the administrative inconvenience caused. The
Courts now-a-days recognise that such an approach is not always
appropriate and may not be in the wider public interest. The effect on
the administrative process is relevant to the Court's remedial discretion
H
STATE v. JOHRI MAL [SINHA, J.] 583
may prove decisive ... They may also be influenced to the extent to A
which the illegality arises from the conduct of the administrative body
itself, and their view of that conduct."

Grahame Aldous and John Alder in "Applications for Judicial Review,
Law and Practice" stated thus:
B
"There is a general presumption against ousting the jurisdiction of the
courts, so that statutory provisions which purport to exclude judicial ·
review, are construed restrictively. There are, however, certain areas of
governmental activity, national security being the paradigm, which the
courts regard themselves as incompetent to investigate, beyond an
initial decision as to whether the government's claim is bona fide. In C
this kind of non-justiciable area judicial review is not entirely excluded,
but very limited. It has also been said that powers conferred by the
royal prerogative are inherently unreviewable but since the speeches
of the House of Lords in Council o/Civil Service Unions v. Minister
for the Civil Service this is doubtful. Lords Diplock, Scaman and D
Roskili appeared to agree that there is no general distinction between
powers, based upon whether their source is statutory or prerogative
but that judicial review can be limited by the subject matter of a
particular power, in that case national security. Many prerogative
powers are in fact concerned with sensitive, non-justiciable areas, for
example, foreign affairs, but some are reviewable in principle, including E
where national security is not involved. Another non-justiciable power
is the Attorney General's preprogative to decide whether to institute
legal proceedings on behalf of the public interest."

In Wade's Administrative Law, 8th Edition at pages 551-552, the author
states : F
"Rights and Remedies: Rights depend upon remedies. Legal
history is rich in examples of rules of law which have been
distilled from the system of remedies, as the remedies have been
extended and adapted from one class of case to another. There
is no better example than habeas corpus. This remedy, since the G ·
sixteenth century the chief cornerstone of personal liberty, grew
out of a medieval writ which at first played an inconspicuous part
in the law of procedure; it was used to secure the appearance of
a party, in particular where he was in detention by some inferior
court. It was later invoked to challenge detention by the king and H
584 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A by the Coun~il; and finally it became the standard procedure by
which the legality of any imprisonment could be tested. The right
to personal freedom was almost a by-product of the procedura!
rules.

This tendency has both good and bad effects. It is good in that the
B emphasis falls on the practical methods of enforcing any right. Efficient
remedies are of the utmost importance, and the remedies provided by
English administrative law are notably efficient. But sometimes the
remedy comes to be looked upon as a thing in itself, divorced from
the legal policy to which. it ought to give expression. In the past this
has led to gaps and anomalies, and to a confusion of doctrine to
c which the courts have sometimes seemed strangely indifferent."

. A writ of or in the nature of mandamus, it is trite, is ordinarily issued
where the petitioner establishes a legal right in himself and a corresponding
.legal duty in the public authorities.

D · The Legal Remembrancer Manual clearly ~tates that the appointment of
a public prosecutor or a district counsel would be professional in nature. It
is beyond any cavil and rightly conceded at the Bar that the holder of an
office of the public prosecutor does not hold a civil post. By holding a post
of district counsel or the public prosecutor, neither a status is conferred on
E · the incumbent. ·

A distinction is to be borne in mind between appointment of a Public
Prosecutor or Additional Public Prosecutor, on the one hand, anci Assistant
Public Prosecutor,· on the other. So far as Assistant Public prosecutors are
concerned, they are employees of the State. They hold Civil posts. They are
F answerable for their conduct to higher statutory authority. Their appointment
is governed by the service rules framed by the respective State Government.
(See·Samarendra Das, Advocate v. The State of West Bengal and Ors., JT
(2004) 2 SC 413).

The appointments of Public Prosecutors, on the other hand, are governed.
G by the Code of Criminal Procedure and/or the executive instructions framed
by the State governing the terms of their appointments. Proviso appended.to
Article 309 of the C:::onstitution of India is not applicable in their case. Their
appointment is a tenure appointment. Public Prosecutors, furthermore, retain
the character of legal practitfoners for all intent and purport. They, of course,
H discharge public ·functions and certain statutory powers are also conferred
STATE v. JOHRI MAL [SINHA, J.] 585
upon them. Their duties and functions are onerous but the same would not A
mean that their conditions of appointment are governed by any statute or
statutory rule.

So long as in appointing a counsel the procedures laid down under the
Code of Criminal Procedure are followed and a reasonable or fair procedure
is adopted, the Court will normally not interfere with the decis~on. The nature B
of the office held by a lawyer vis-a-vis the State being in the nature of
professional engagements, the courts· are normally charry to over-tum any
decision unless an exceptional case is made out. The question as to whether
the State is satisfied with the performance of its counsel or not, is primarily
a matter between it and the counsel. The Code of Criminal Procedure does C
not speak of renewal _or extension of tenure. The extension of tenure of public
prosecutor or the district counsel should not be compared with the right of
renewal under a licence or permit granted under a statUte. The incumbent has
l1'0 legal enforceable right as such. The action of the State in not renewing
the tenure can be subjected to judicial scrutiny inter alia on the ground that
the same is arbitrary. The courts norm<tlly would not delve into the records D
with a view to ascertain as to what impelled the State not to renew the tenure
of a public prosecutor or a district counsel. The jurisdiction of the courts in
a case of this nature would be to invoke the doctrine of 'Wednesbury
Unreasonableness' as developed in Associated Picture.House v. Wednesbury
Corporation, ( 1947) 2 All ER 640.
E
In Om Kumar and Ors. v. Union ofIndia, (2001) 2 SCC 386, it was held
that where administrative action is challenged under Article 14 as being
discriminatory, equals are treated unequally or unequals are treated equally,
the question is for the constitutional courts as primary reviewing courts to
consider the correctness of the level of discrimination applied and whether F
it is excessive and whether it has a nexus with the objective intended to be
achieved by the administrator. For judging the arbitrariness of the order, the
test of unreasonableness may be applied. The action of the State, thus, must
be judged with extreme care and circumspection. It must be borne in mind that
the rights. of the public prosecutor or the district counsel do not flow under
a statute. Although, discretionary powers are not beyond pale of judicial G
review, the courts, it is trite, allow the public authorities sufficient elbow ·
space/play in the joints for a proper exercise of discretion.

It may be true that the Legal Remembrancer Manual provides for renewal
but it contains executive instructions which even do not meet the requirements H
586 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A of clause (3) of Article 166 of the Constitution. Legal Remembrancer Manual
is not a law within the meaning of Article l3 of the Constitution oflndia. [See
Union of India v. Naveen Jindal and Anr., JT (2004) 2 SC l]

The State, however, while appointing a counsel, must take into account
the following fundamental priitciples which are required to be observed that
B good and competent lawyers are required to be appointed for (i) good
administration of'Justice; (ii) to fulfil its duty to uphold the rule of law; (iii)
its accountability to the public; and (iv) expenditure from the tax payers'
money.

Only when good and competent counsels are appointed by the State,
C the public interest would be safeguarded. The State while appointing the
public prosecutors, must bear in mind that for the purpose of upholding the
rule of law, good administration of justice is imperative which in tum would
have a direct impact on sustenance of democracy. ~o appointment of public
prosecutors or district counsel should, thus, be made either for pursuing a
D political purpose or for giving some undue advantage to a section of people.
Retention of its counsel by the.State must be weighed on the scale of public
interest. The State should replace an efficient, honest and competent lawyer,
inter alia, when it is in a position to appoint a more competent lawyer. In such
an event, even a good .performance by a lawyer may not be of much
importance.
E
Howeverhmalice in law can also be a ground for judicial review.
The Code of Criminal Procedure does ·not provide for renewal or extension
of a term. Evidently, the Legislature thought it fit to leave such matters at the
discretion of the State. It is no doubt true that even in the matter of extension
F or renew1i.I of the term of Public Prosecutors, the State is required to act fairty
and reasonably. The State normally would be bound to follow the principles
laid down in the Legal Remembrancer Manual.

CORRECTNESS OF THE HIGH COURT JUDGMENT:
G It appears that Shri K.S. Rakhra, District Judge? Meerut, by his letter
dated l l th September, 1998, addressed to the District Magistrate, Meerut,
although observed that the work and conduct. of the respondent was
satisfactory _and he had not received any complaint in regard to his integrity,
but it was stated:
H
ST A TE v. JOHRI MAL [SINHA, J.] 587

"I, however, agree with your view that the work of the D.G.C. (Crl.) A
also requires effective control over his team and proper anal_ysis of
the result of the trial and follow up action including remedial steps to
improve the efficiency of the prosecution as a whole.
Your letter suggests that in your monthly meetings you have
found that Shri Johri Mal does not exercise effective control over the B
'
Additional D.G.C. (Crl.) and Assistant. D.G.C. (Crl.) and that he has
not been following the instructions given in your monthly meetings
with regard to serious criminal matters.
You have also found him failing to furnish complete relevant
information in the meetings and that he does not have proper C
coordination with the S.P.O. office and that it is giving rise to
administrative problems.
The work of D.G.C. (Crl.) also requires administrative skill and
above average judicial knowledge.
D
I have no objection if Shri Johri Mal is replaced by some better
and experienced person having good experience of conducting Session
Trials and also having sufficient a_dministrative skill."

Acting pursuant to, or in furtherance of, the aforementioned
recommendations of the District Judge, the District Magistrate in terms of his E
letter dated 12.9.1998 addressed to the Principal Secretary, Justice and Legal
Remembrancer, Government of Uttar Pradesh, Lucknow stated, thus:

"It is submitted in aforesaid matter that Sri Johri Mal, Advocate, was
engaged on the post of District Government Counsel [Criminal], Meerut
for th~ term upto 14.9.98 as per the order No. D 1880 [l] Seven-Judicial F
3[42]/90 dated 17.9.97. After the term of Sri Johri Mal comes to an end,
the post of District Government Counsel [Criminal] shall fall vacant
w.e.f. 15.9.98. On analysis of work of Sri Johri Mal in a year, I felt that
it shall not be proper to extend the period of Sri Johri Mal as District
Government Counsel [Criminal] in a district like Meerut. He has no G
effective control over other ADGC for doing pairvi [taking steps].
Even necessary particulars are not collected for doing pairvi. In order
to make prosecutive more effective it was decided that three important
cases be determined regular dates be fixed and same be got decided
at the earliest, but such action could not be done effectively due to
lack of co-ordination with the judicial officers. In toto his term as the H
588 SUPREME COURT REPORTS (2004) SUPP. I S.C.R.

A District Government Counsel cannot be held as proper and satisfactory.
District Judge has also con~ented to engage other appropriate D.G.C.
at the place of Johri Mal and Jetter of opinion of the District Judge
is enclosed."

We may notice that one Shri Narendra Deo Chaubey, U~der Secretary,
Law Department, Government ofUttar Pradesh, Lucknow affmned an affidavit
in support of its application for recalling of the Order dated 11th December,
1998 wherein it was categorically stated: ·

"That in para ?2 of the writ petition the petitioner has made a false
statement that on the renewal application of the petitioner the District
c Judge, Meerut and respondent No. 2 made favourable reports and. the
renewal of the petitioner was recommended."

The very premise whereupon the High Court has based its decisions,
therefore, was incorrect. The impugned judgment, thus, cannot be sustained
as it suffers from misdirection in law.
D
A Public Prosecutor is not only required to show his professional
competence but is also required to discharge certain administrative functions.
The District Officer was of the opinion that in a district like Meerut the term
of the appointment should not be extended as he has no effective control
E over the other ADGs for 'taking steps'. The approach of the District Officer
cannot be said to be wholly irrational. As noticed hereinbefore, the District
Judge, Meerut, has also agreed thereto. The action on the part of the State,
therefore, cannot be said to be wholly without jurisdiction requiring interference
by the High Court in exercise of its power of judicial review.

F COILEGIUM:

Whether the High Court was right in its direction in the light of Special
Reference No. l of 1998 that a collegium should be constituted?

This Court in Supreme Court Advocates-on-Record Associations and
G Ors. v. Union of India, [i993] 4 sec 441, held that the word 'consultation'
is capable of giving djffere!lt meaning in different context. The word
'consultation' occurring in Article 124 of the Constitution of India was given
a particular construction having regard to the relevant significant context in
which the same was used. Having regard to the provisions of the Constitution,
th~ court felt that the meaning of the word 'consultation' cannot be confined
H to its lexical definition.
STATE v. JOHRI MAL [SINHA,J.] 589
In Special Reference No. l of 1998, Re: (1998]7 SCC 739, this Court A.
stated:

"12. The majority view in the Second Judges case (1993] 4 SCC 441,
is that in the matter of appointments to the Supreme Court and the
High Courts, the opinion of the Chief Justice of India has primacy.
The opinion of the Chief Justice l.lf India is "reflective of the opinion B
of the judiciary, which means that -it must necessarily have the element.
of "plurality in _its formation". It is to be formed "after taking into
account the view of some other Judges who are traditionally associated
with this function". The opinion of the Chief Justice of India "so
given has primacy in the matter of all appointments". For an C
appointment to be made, it has to be "in conformity with the final
opinion of the Chief Justice of India formed in the manner indicated".
It must follow that an opinion formed by the Chief Justice of India in
any manner other than that indicated has no primacy in the matter of
appointments to the Supreme Court and the High Courts and the
Government is not obliged to act thereon." D
· Appointment of the District Government Counsel cannot be equated
with the appointments of the High Court and the Supreme Court Judges. A
distinction must be made between professional engagement and a holder of
high public office. Various doctrines and the provisions of the Constitution
which impelled this Court to give meaning of 'consultation' as 'concurrence' E
and wherein the Chief Justice of India will have a primacy, cannot be held to
be applicable in the matter of consultation between the District Magistrate
and the District Judge for the purpose of preparation of a panel of the District
Government Counsel.

We would, however, like to lay stress on the fact that the consultation F
with the District Judge must be an effective one. The District Judge in turn
would be well advised to take his colleagues into confidence so that only
meritorious and competent persons who can maintain the standard of public
office, can be found out.

The High Court failed to consider that the power under Article 226 of
G
the Constitution of India is not at par with the constitutional jurisdiction
conferred upon this Court under Article 142 of the Constitution of India. The
High Court has no jurisdiction to direct formulation of a new legal principle
or a new procedure which would be contrary to, and inconsistent with, a
statutory provision like Code of Criminal Procedure. (See State of Himachal H
590 SUPREME COURT REPORTS [2004] SUPP. l S.C.R.

A Pradesh v. A Parent of a Student of Medical College, Simla and Ors., [ 1985]
3 SCC 169 and Asif Hameed and Ors. v. State of Jammu and Kashmir and
Ors., [1989] Supp 2 SCC 364).

In Guruvayoor Devaswom Managing Committee and Anr. v. C.K. Rajan
and Ors., [2003) 7 SCC 546, this Court held:
B
"50 ... (x) The Court would ordinarily not step out of the known areas
of judicial review. The High Courts although may pass an order for
doing complete justice to the parties, they do not have a power akin
to Article 142 of the Constitution of India."

C DECISIONS OF TIDS COURT:

This Court in Kumari Shrilekha Vidyarthi and Ors. v. State of U.P. and
Ors., [1991] 1 SCC 212, opined that the appointment made in the post of
District Gove1111llent Counsel is not contractual in nature. It was held that the
Government Law Officers including the Public Prosecutors are holders of
D public offices. It was further opined that even in a case of contract the State
cannot act arbitrarily and such arbitrary action is liable to be set aside as
violative of Article 14 of the Constitution of India.

In Kumari Shrilekha Vidyarthi (supra), the Court sought to draw a
E distinction between the powers of public authorities vis-a-vis the private
authorities referring to Wade's Administrative Law, 6th Edition, page 401 to
the following effect and stating:

"For the same reasons there sho,uld in principle be no such thing as
unreviewable administrative discretion, which should be just as much
F a contradiction in terms as unfettered 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."

G We have our own reservations about the aforementioned principles of
law, but for the purpose of this case, it is not necessary to advert thereto.

The Article by Sue Arrow Smith on Judicial Review and Contractual
Powers of authorities published in (1990) 106 Law Quarterly Review, Pages
277-292 which has been referred to in Sreelekha Vidyarthi (supra), took into
H consideration several area5 of English Law relating to (a) Licensing of market
STATE v. JOHRI MAL [SINHA, J.] 591
traders, (b) Dismissal of public servants, (c) Public body's powers as landlord, A
and (d) Judicial review of government procurement. The learned author, inter
alia, observed that the possibility of review of the exercise of contractual
rights in the said area which have been recognized by Canadian courts,
should also be adopted by the English Courts. The learned author observes:

"In other words, they should accept that these powers are reviewable B
as a matter of principle but that review may be negated or limited by
specific policy factors, rather than continue searching for some "public
law" element to the decision as a justification for applying public law
doctrines to the case before them. Support for this approach is found
in the judgments of the Court of Appeal in Brown, Kelly and Emmett,
and also, implicitly, in the recent cases on review of procurement; and C
it is a pity that the Court of Appeal did not take the opportunity
presented recently in Jones v. Swansea City Council to endorse such
an approach, since this clearly commended itself to the Court."

The said Article is although thought provoking, we are bound by the
decisions of this Court and a distinction between a public law element and D
private Jaw element although may be thin, has to be kept in view and taken
into consideration while entertaining a writ application.

In Mukul Dalal and Ors. v. Union ofIndia and Ors., [ 1988] 3 SCC 144,
this Court held that, office of the Public Prosecutor is a public one and E
nobody should be appointed as a special public prosecutor at the instance
of a complainant, stating:

"10 ... To leave the private complainant to pay to the Special Public
~Prosecutor would indeed not be appropriate. We would make it clear
that we do not support the conclusion of the High Court that as a rule F
whenever there is request of appointment of a Special Public Prosecutor
or an Assistant Public Prosecutor, the same should be accepted. The
Remembrancer of Legal Affairs should scrutinise every request, keeping
a prescribed guideline in view and decide in which cases such request
should be accepted, keeping the facts of such case in view. Ordinarily
the special Public Prosecutor should be paid out of the State funds G
even when he appears in support of a private complainant but there
may be some special ~ase where the Special Public Pr~secutor's
remuneration may be collected from the private source. In such cases
the fees should either be deposited in advance or paid to a prescribed
State agency from where the Special Public Prosecutor could collect H
592 SUPREME COURT REPORTS [2004) SUPP. I S.C.R.

A the same. In view of these conclusions and our disagreeing with the
view of the High Court, the appeals shall stand allowed. Rule 22 of
the Maharashtra Rules, referred to above, in our view is bad and the
State Government should properly modify the same keeping our
conclusions in view. The Remembrancer of Legal Affairs of the
Maharashtra Government will now decide as to whether in the three
B cases referred to here, the services of a Special Public Prosecutor, a
Public Prosecutor or an Assistant Public Prosecutor should be provided
and in case he comes to the conclusion that such provision should
be made, he should decide as to whether the State administration
should pay for such Public Prosecutor or the private complainant
c should bear the same. There would be nq order as to costs.

In Mundrika Prasad Singh v. State of Bihar, [1979} 4 SCC 701, this
Court held that a Government Pleader holds a public office but he is more than
an advocate for litigant. This Court observed:

"14. It is heartening to notice that the Bihar Government appoints
D
these lawyers after consultation with the District Judge. It is in the
best interest of the State that it should engage competent lawyers
without hunting for political partisans regardless of capability. Public
offices - and Government Pleadership is one - shall not succumb
to Tammany Hall or subtler spoils system, if purity in public office is
E a desideratum. After all, the State is expected to fight and win its
cases and sheer patronage is misuse of power. One effective method
of achieving this object is to act on the advice of the District Judge
regarding the choice of Government Pleaders. When there were several
thousand cases in the Patna courts and hundreds of cases before a
plurality of tribunals, it was but right that government did not sacrifice
F the speedy conduct of cases by not appointing a number of pleaders
on its behalf, for the sake of the lucrative practice of a single
Government Pleader. It is inconceivable how he would have discharged
his duties to the court and to his client if this crowd of land acquisition
cases were posted in several courts more or less at the same time.
G Adjournment to suit advocates' convenience becomes a bane when
it is used only for augmentation of counsel's income, resisting
democratisation and distributive justice within the profession. These
principles make poor appeal to those who count, which is a pity."

This Court lamented :
H
STATE v. JOHRI MAL [SINHA, J.] 593

"17. We dismiss the special leave petition but with a sad tag, which A
is the message of this martyrdom. Professions shall not be concealed
conspiracies with 'effete, aristocratic, protective coloration', which at
the same time enables one to make a considerable sum of money
without sullying his hands with a "job" or "trade". The remarks of ·
Tabachnik, in 'Professions For the People', about English professions ,B
of the eighteenth century smell fresh.

One could carry on commerce by sleight of hand while donning the
vestments of professional altruism. To boot, one could also work
without appearing to derive income directly from it. As Reader explains:

"The whole subject of payment ... seems to have caused professional C
men acute embarrassment, making them take refuge in elaborate
concealment, fiction, and artifice. The root of the matter appears to lie
in the feeling that it was not fitting for one gentleman to pay another
for services rendered, particularly ifthe money passed directly. Hence,
the device of paying a barrister's fee to the attorney, not to the D
barrister himself. Hence, also the convention that in many professional '
dealings the matter of the fee was never openly talked about, which
could be very convenient, since it precluded the client or patient from
arguing about whatever sum his advisor might eventually indicate as
a fitting honorarium." (1966, p. 37)

The established professions - the law, medicine, and the clergy -
E
held (or continued to hold) estate-like positions :

"The three 'liberal professions' of the eighteenth century were the
nucleus about which the professional class of the nineteenth century
was to form. We have seen that they were united by the bond of F
classical education; that their broad and ill-defined functions covered
much that later would crystallize out into new, specialised, occupations;
that each, ultim~tely, derived much of its standing with the established
order in the State." (1966, p. 23)

18. The time has come to examine the quality of the product or service, G
control the price, floor to ceiling, enforce commitment to the people
who are the third world clients, and practise internal distributive
justice oriented on basic soc•al justice so that the profession may
flourish without wholly hitching the calling to the star of material
assessment immunised by law from the liabilities of other occupations.
H
I
594 · SUPREME COURT REPORTS [2004] SUPP! I S.C.R.

A We do not suggest that lawyering in India needs a National
Commission right now as in England and elsewhere, nor do we
subscribe to the U.S. situation on wpich the President and the Chief
Justice have pronounced. We quote :

We are over-lawyered .. : . Lawyers of great influence and prestige
B led the fight against civil rights and economic justice .· ... They have
fought innovations even in their own profession ·.... Lawyers as a
profession have resisted both social change and economic reform.

(President Carter, May, 1978)

We may well be on our way to a society overrun by hordes of lawyers,
c hungry as locusts, and brigades of justices in numbers, never before
contemplated.

(U.S. Chief Justice Burger)

19. Law Reform includes Lawyer Reform, an issue which the petitioner
D has unwittingly laid bare. After all, as Prof. Connel states :

"Criticism of relatively conservative institutions in times of social
questioning is hardly a new phenomenon."

(Australian Law Journal, Vol. 51, p. 351)"
E
In State ofU.P. v. RameSh Chandra Sharma and Ors., [1995] 6 SCC 527,
Verma, CJ speaking for the Bench opined:

"In view of the clear provision in clause (3) of para 7.06 that the
·"appointment of any. legal practitioner as a District Government
F Counsel is only professional engagement", it is difficult to appreciate
the submission for which sustenance is sought from the provisions
contained in the same manual. The appointment being for a fixed term
and requiring express renewal in the manner provided in the Manual,
there is no basis to contend that it is not a professional engagement
of a legal practitioner but appointment to post in government service
G which continues till attaining the age of superannuation. In the earlier
decisions of this Court including Shrilekha Vidyarthi, the appointment
of District Government Counsel under the Manual has been understood
only as a professional engagement of a legal practitioner. This
contention is, therefore, rejected.
H
STATE v. JOHRI MAL [SINHA, J.] 595
Another Bench of this Court in Harpal Singh Chauhan and Others etc. A
v. State of U.P., [1993] 3 SCC 552 upon a detailed discussion of the relevant
provisions of the Legal Remembrancer Manual as also sub-sections (4), (5)
and (6) of the Code of Criminal Procedure, opined :

"16. As already mentioned above, Section 24 of the Code does not
speak about the extension or renewal of the term of the Public B
Prosecutor or Additional Public Prosecutor. But after the expiry of the
term of the appointment of persons concerned, it requires the same
statutory exercise, in which either new persons are appointed or those
who have been working as Public Prosecutor or Additional Public
Prosecutor, are again appointed by the State Government, for a fresh
term. The procedure prescribed in the Manual - to the extent it is not C
in conflict with the provisions of Section 24 - shall be deemed to be
supplementing the statutory provisions. But merely because there is
a provision for extension or renewal of the term, the same cannot be
claimed as a matter of right."
D
17. It is true that none of the appellants can claim, as a matter of right,
that their terms should have been extended or that they should be
appointed against the existing vacancies, but, certainly, they can make
a grievance that either they have not received the fair treatment by
the appointing authority or that the procedure prescribed in the Code
and in the Manual aforesaid, have not been followed. While exercising E
the power of judicial review even in respect of appointment of members
of the legal profession as District Government Counsel, the Court can
examine whether there was any infirmity in the "decision makhg
process". Of course, while doing so, the Court cannot substitute its
own judgment over the final decision taken in respect of selection of F
persons for those posts."

The Court emphasized that the members of the legal profession are
required to maintain high standard of legal ethics and dignity of profession
and further they are not supposed to solicit work or seek mandamus from
courts in matters of professional engagements. G
Despite the same to a limited extent in some cases the orders of non-
renewal of the term of the District Government Counsel were interfered with
on the ground that the District Magistrate had not performed his duty as
enjoined by law.
H
596 SUPREME COURT REPORTS [2004) SUPP. I S.C.R.

A In relation to appointment of the standing counsels for the High Court,
this Court, however, in State of U.P. and Ors. etc. v. U.P. State Law Officers
Association and Ors. etc., [1994] 2 SCC 204, while distinguishing Shrilekha
Vidyarthi (supra), observed that legal profession is essentially. a service
oriented profession. Noticing the changing scenario as also growth of litigation,
this Court emphasized the obligation on the part of the Government or the
B public body to engage the most competent lawyer for conducting their affairs
stating that relationship between the lawyer and his client is one of the trust
and confidence. The client engages a lawyer for personal reasons and would
be at liberty to leave him also for the same reasons. It was observed :

"18. The mode of appointment of lawyers for the public bodies,
c therefore, has to be in conformity with the obligation cast on them to
select the most meritorious. An open invitation to the lawyers to
compete for the posts is by far the best mode of such selection. But
sometimes the best may not compete or a competent candidate may
not be available from among the competitors. In such circumstances,
D the public bodies may resort to other methods such as inviting and .
appointing the best available; although he may not have applied for
the post. Whatever the method adopted, it must be· shown that the
search for the meritorious was undertaken and the appointments were
made only on the basis of the merit and not for any other
"consideration."
E
NATURE OF OFFICE:

The District Government Counsel appointed for conducting civil as also
criminal cases hold-Offices of great importance. They.are not only officers of
F the court but also the representative of the State. The court reposes a great
deal of confidence in them. Their opinion in a matter carries great weight.
They are supposed to render independent, fearless and non-partisan views
before the court irrespective of the result of litigation which may ensue.

The Public Prosecutors have greater responsibility. They are required to
G perform statutory;duties_independently:having regard to various provisions
contained1in·the Code·of Criminal Procedure~and in particular Section 320
thereof.

The:public:prosecutors and the Government counsel play an important
role.in administration of justice. Efforts are required to be made to improve
H the management of prosecution in order to increase the certainty of conviction
STATE v. JOHRI MAL [SINHA, J.] 597
and punishment for most serious offenders and repeaters. The prosecutors A
should not be over-burdened with too many cases of widely varying degree
of seriousness with too few assistants and inadequate financial resources.
The prosecutors are required to play a significant role in the administration
of justice by prosecuting only those who should be prosecuted and releasing
or directing the use of non-punitive methods of treatment of those whose B
cases would best be processed.

The District Government Counsel represent the State. They, thus,
represent the interest of general public before a court of law. The Public
prosecutors while presenting the prosecution case have a duty to see that
innocent persons may not be convicted· as well as an accused guilty of C
commission of crime does not go unpunished. Maintenance of law and order
in the society and, thus, to some extent maintenance of rule of law which is
the basic fibre for upholding the rule of democracy, lies in their hands. The
Government counsel, thus, must have character, competence and sufficient
experience as also standing at the Bar. The need for employing meritorious
and competent persons to keep the standard of the high offices cannot be D
minimized. The holders ·of the post have a public duty to perform. Public
element is, thus, involved therein.

In the matter of engagement of a District Government Counsel, however,
a concept of public office does not come into play. However, it is true that
in the matter of Counsel, the choice is that of the Government and none can E
claim a right to be appointed. That must necessarily be so because it is a
position of great trust and confidence. The provision of Article 14, however,
will be attracted to a limited extent as the functionaries named in the Cede
of Criminal Procedure are public functionaries. They also have a public duty
to perform. If the State fails to discharge its public duty or act in defiance, F
deviation and departure of the principles of law, the court may interfere. The
court may also interfere when the legal policy laid down by the Government
for the purpose of such appointments is departed from or mandatory
provisions of law are not complied with. Judicial review can also be resorted
to, if a holder of a public office is sought to be removed for reason de'hors
the statute. G
The appointment in such a post must not be political one. The Manual
states that a political activity by the District Government Counsel shall be a
disqualification to hold the post.

We cannot but express our anguish over the fact that in certain cases H
598 SUPREME COURT REPORTS (2004] SUPP. I S.C.R.

A recommendations are made by the District Magistrate having regard to the
political affinity of the lawyers to the party in power. Those who do not have
such political affinity, although competent, are not appointed. Legal
Remembrancer's Manual clearly forbids appointment of such a lawyer and/or
if appointed, removal from his office. The District Judge and the District
Magistrate, therefore, are duty bound to see that before any recommendation
B is not made, or any political affinity. They must also bear in mind that the
Manual postulates that any lawyer who is guilty of approaching the authorities,
would not be entitled to be considered for such appointment.

The State, therefore, is not expected to rescind the appointments with
C the change in the Government. The existing panel of the District Government
Counsel may not be disturbed and a fresh panel come into being, only
because a new party has taken over change of the Government.

SUBMISSION OF BIO-DATA:

D During hearing of the matter, a question arose as to whether submission
of bio data pursuant to issuance of a notice therefor by the District Magistrate
or the District Judge would amotint to soliciting briefs within the meaning of
Rule 36 of the Bar Council of India Rules or not.

The question came up for consideration before a Full Bench of the
·E Andhra Pradesh High Court in B. Rajeswar Reddy and Ors. v. K.
Narasimhachari and Ors., (200 I) 6 ALT 104. The court noticed :

"15. It may not always be possible for the District and Sessions Judge
to have enough time to know all the advocates who are fit to be
appointed as Public Prosecutors. He, therefor~,· may be entitled to
F consult his colleagues particularly when Additional Public Prosecutors
are required to be appointed in their Courts also.

16. Before such recommendations are made, the District and Sessions
Judge and his colleagues, appear to have called for applications for
making the things more transparent. It is true the post of the Public
G Prosecutor occupies a high position in the scheme of criminal justice
delivery system. His honesty, impartiality, firmness and other qualities
will have to ·be taken into consideration."

Referring to the judgment of this Court in Harpal Singh Chauhan
(supra), the High Court held that filing of such applications on the part of the
H
STATE v. JOHRI MAL [SINHA, J.] 599

advocate would not attract the vice of Rule 36 as the advocates would not A
file any application on their own.

PROVISO TO PA~ 7.03(3):

We may also notice that according to Mr. Ranjit Kumar, leamed·senior
counsel, the proviso appended to clause (3) of Para 7.03 is being misused. B
The proviso evidently was inserted with a noble purpose. Such a
provision was evidently made having regard to the fact that an advocate
having a deep sense of self-respect, may not file any application for his
appointment as a District Government Counsel despite calling for applications
by the District Magistrate in this behalf. The District Magistrate, in a given C
situation, may have to persuade very competent persons to take the offer in
public interest as also in the interest of the State. But recourse to the said
provision cannot be resorted to for general appointments. The said proviso
must be taken recourse to only in very very exceptional cases. Even in
relation thereto, consultation with the District Judge should be held to be D
imperative.

CONSULTATION:

Keeping in mind the aforementioned legal principles, the question which
arises for consideration in these appeals is, the nature and extent of E
consultation, a Collector is required to make with the District Judge.

The age-old tradition on the part of the State in appointing the District
Government Counsel on the basis of the recommendations of the District
Collector in consultation with the District Judge, is based on certain principles.
Whereas the District Judge is supposed to know the merit, competence and F·
capability of the concerned lawyers for discharging their duties, the District
Magistrate is supposed to know their conduct outside the court vis-a-vis the
victims of offences, public officers, witnesses etc. The District Magistrate is
also supposed to know about the conduct of the Government Counsel as also
their integrity. G
We are also pained to see that the State of Uttar Pradesh alone had
amended sub-section (l) of Section 24 and deleted sub-sections (4), (5) and
(6) of Section 24 of the Code of Criminal Procedure. Evidently, the said
legislative step had been taken to overcome the decision of this Court in
Kumari Shrilekha Vidyarthi (supra). We do not see any rationale in the'said- H
600 SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.

A action. The learned counsel appearing for the State, when questioned, submitted
that such a step had been taken having regard to the fact .that exhaustive
provisions are laid down in Legal Remembrancer Manual which is a complete
code in itself. We see no force in the said submission as a law cannot be
substituted by exe.cutive instructions which may be subjected to administrative
B vagaries. The executive instructions can be amended, altered or withdrawn at
the whims and catrice of the executive for the party in power. Executive
instructions, it is beyond any cavil, do not carry the same status as of a
statute.

The State should .bear in mind the dicta qf this Court in ·Mundrika
c. Prasad Singh (supra) as regards the necessity to consult the District Judge.
While making appointments of District Government Counsel, therefore, the
State should give primacy to the opinion of the District Judge. Such a course
of action would demonstrate fairness and reasonableness of action and,
furthermore, to a large extent, the action of the State would not be dubbed
as politically motivated or otherwise ar~itrary. As noticed hereinbefore, there
D also does not exist any rationale behind deletion of the provision relating to
consultation with the High Court in the matter of appointment of the Public
prosecutors in the High Court. The said provision being a salutary one, it is
expected that the State of U.P. either would suitably amend the same or
despite deletion shall consult the High Court with a view to ensure fairness
E in action.

CONCLUSION:
..
For the aforementioned reasons, we are of the opinion that the impugned
judgment cannot be sustained which is set aside accordingly. The appeal is
F allowed but in the facts and circumstances of the case, there shall be no order
as to costs.

NJ. Appeals allowed.