Supreme Court of India
STATE OF U.P. & ORS.versusAJAY KUMAR SHARMA & ANR
- Citation
- 2015 INSC 868
- Decided
- 26 November 2015
- Disposal
- Appeal(s) allowed
- Bench
- VIKRAMAJIT SEN
Holding
The State’s discretion to appoint or not renew District Government Counsel is unfettered; there is no statutory right to renewal, and the High Court’s order is set aside.
Summary
The State of Uttar Pradesh appealed against a Division Bench of the Allahabad High Court that had set aside its termination of several District Government Counsels and ordered a reconsideration of their renewal. The core issue was whether the State, under Section 24 of the Code of Criminal Procedure and the Uttar Pradesh Legal Remembrancer’s Manual, could deny renewal of these counsel and whether such appointments created a statutory right of tenure. The Supreme Court held that the appointments are professional engagements, not statutory posts, and the State retains unfettered discretion to appoint counsel it trusts, as clarified in State of U.P. v. Johri Mal. Consequently, the High Court’s order was set aside, the appeals were allowed, and the State was directed to make fresh appointments without costs. The Court reiterated the binding nature of precedent and the doctrine of stare decisis, emphasizing that lower benches must follow the three‑judge decision in Johri Mal.
Issues considered
- The scope and interpretation of Section 24 of the Code of Criminal Procedure, 1973 with respect to renewal of District Government Counsel appointments.
- The applicability of the Uttar Pradesh Legal Remembrancer’s Manual to the appointment and renewal process.
- Whether the State’s decision to terminate or not renew counsel amounts to an illegal denial of a statutory right.
- The extent of the State’s discretionary power in appointing District Government Counsel and the relevance of the doctrine of precedent.
Legislation cited
Subjects
Section 24 CrPCLegal Remembrancer ManualDistrict Government Counselappointmentrenewaldiscretionpublic prosecutormandamusjudicial reviewprecedentstare decisis
Judgment
[2015] 12 S.C.R. 627
STATE OF U.P. & ORS. A
v.
AJAY KUMAR SHARMA&ANR.
(Civil Appeal Nos.13727 of 2015)
B
NOVEMBER 26, 2015
[VIKRAMAJIT SEN AND ABHAY MANOHAR SAPRE, JJ.]
Code of Criminal Procedure, 1973 - s. 24 - (UP
Government) Legal Remembrance's Manual - District c
Government Counsel (Civil and Criminal) in the Subordinate
Courts across the State - Renewal of Appointment or
reconside~ their candidat~re - Held: State, like any other
litigant, must have the freedom to appoint counsel in whom
they repose trust and confidence- Choice made by the State D
should not be such as could defeat the sacred and onerous
responsibility of ensuring that the justice is meted out to all
citizens - Correct approach is to ensure the competency of
advocate_~ being considered for appointment of Additional
District Government Counsel, Assistant District Government E
Counsel, Panel lawyers and Sub District Government
Counsel- To start this process by considering the re-'
appointment or renewal of existing Government Counsels
would be incorrect since that would dilute, nay, dissolve the
discretion of the Government to appoint advocates whom they F
find trustworthy.
Constitution of India, 1950 - Art. 141 - Doctrine of
Precedent - Held: Mandates that an exposition of law must
be followed and applied even by co-ordinate or co-equal G
Benches and certainly by all smaller Benches and
subordinate courts -Apart from Art. 141, it is a policy of the
courts to stand by precedent and not to disturb a settled point
- Purpose of precedents is to bestow predictability on judicial
decisions- If binding precedents even of co-ordinate strength H
627
628 SUPREME COURT REPORTS [2015] 12 S.C.R.
A are not followed, the roots of continuity and certainty of law
which should be nurtured, strengthened perpetuated and
proliferated would instead be deracinated - Departure may
only be made when a co-ordinate or co-equal Bench finds
the previous decision to be of doubtful logic or efficacy and
B consequentially, its judicial conscience is so perturbed and
aroused that it finds it impossible to follow the existing ratio.
Per Vikramajit Sen, J.
Allowing the appeals, the Court
c HELD: 1.1 The principles of 'Precedent' and of Stare
Decisis which are a cardinal feature of the hierarchical
character of all Common Law judicial systems. The
doctrine of Precedent mandates that an exposition of
0 law must be followed and applied even by coordinate or
co-equal Benches and certainly by all smaller Benches
and subordinate courts. That is to say that a smaller and
a later Bench has no freedom other ~han to apply the
law laid down by the earlier and larger Bench; that is the
E law which is said to hold the field. Apart from Article 141,
it is a policy of the courts to stand by precedent and not
to disturb a settled point. The purpose of precedents is
to bestow predictability on judicial decisions and it is
beyond cavil that certainty in law is an essential
F ingredient of rule of law. A departure may only be made
when a coordinate or co-equal Bench finds the previous
decision to be of doubtful logic or efficacy and
consequentially, its judicial conscience is so perturbed
and aroused that it finds it impossible to follow the
G existing ratio. The Be.nch must then comply with the
discipline of requesting the Hon'ble Chief Justice to
constitute a larger Bench. [Para 10] [640-D-H]
1.2 If binding precedents even of co-ordinate
H strength are not followed, the roots of continuity and
STATE OF U.P. v. AJAY KUMAR SHARMA 629
certainty of law which should be nurtured, strengthened A
perpetuated and proliferated will instead be deracinated.
[Para 11] [641-A]
1.3 Sitting in a Division Bench of two, this Court at
present can do no better than apply the rules of 8
precedent as have been left for this Court to follow. The
law pertaining to the appointment of Additional District
Government Counsel, Assistant District Government
Counsel, Panel lawyers and Sub District Government
Counsel was directly in issue before the Three-Judge c
Bench in State of U.P. v. Johri Mal where the law has
been comprehensively clarified. [Para 14] [647-B-C]
1.4 It is in the interest of the dispensation of criminal
justice that competent counsel possessing integrity
should alone be appointed, since otherwise, there is a D
strong possibility of miscarriage of justice. In choosing
them, the State will not only have to b~.. satisfied of their
forensic competence, but also that they are bereft of any
criminal antecedents. This, however, does not mean that
the persons presently discharging the duties of E
Additional District Government Counsel, Assistant
District Government Counsel, Panel lawyers and Sub
District Government Counsel stand appointed to civil
posts, thereby creating a right of continuity. The State, F
like any other litigant, must have the freedom to appoint
counsel in whom they repose trust and confidence. The
only expectation is that the choice made by the State
should not be such as could defeat the sacred and
onerous responsibility of ensuring that the justice is G
meted out to all citizens. In Johri Mal, this Court has
categorically rejected the claim of an advocate to
continuous renewal or re-appointment as a Government
Advocate. The said exposition of the law is concurred
with. The correct approach is to ensure the competency H
630 SUPREME COURT REPORTS [2015] 12S.C.R.
A of advocates being considered for appointment of
Additional District Government Counsel, Assistant
District Government Counsel, Panel lawyers and Sub
District Government Counsel. It would be an incorrect
apprQach to start this process by considering the re-
8 ap(ointment or renewal of existing Government
Counsels since that would dilute, nay, dissolve the
discretion of the Government to appoint advocates
whom they find trustworthy. The High Court has
followed the second approach leading to the
C dissatisfaction of the State Government and their
resentment that their realm of discretion has been
eroded for no justifiable· reason. The impugned
Judgment is set aside, but without imposition of costs.
Fresh appointments to be made expeditiously. [Para 16,
0
17] [650-D-H; 651-A-C]
State ofU.P v. Johri Ma/2004 (1) Suppl. SCR 560
: (2004) 4 sec 714 - relied on.
U. P Shaskiya Adhivakta Kalyan Samiti v. State
E of UP Writ Petition Misc. Bench NO. 7851 of
2008, 2012 (30) LCD 1066; Kumari Shrilekha
Vidyarthi v. State ofU.P 1990 (1) Suppl. SCR 625
: (1991) 1SCC212; State ofU.P v. State of U.P
Law Officers Association 1994 (1) SCR 348 :
F (1994) 2 SCC 204; State of UP v. Rakesh Kumar
Keshri 2011 (5) SCR 1060: (2011) 5 sec 341;
Dr. A. R. Sircarv. State of UP(1993) Supp2 SCC
734; Andi Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak Trust
G v. V. R. Rudani 1989 (2) SCR 697:(1989) 2 SCC
691; Zee Telefilms Ltd. v. Union of India 2005 (1)
SCR 913:(2005) 4SCC 649; State ofUPv. Ashok
KumarNigam 2012 (13) SCR 265:(2013) 3 SCC
372; Union of India v. Raghubir Singh 1989 (3)
H SCR 316:(1989) 2 SCC 754; Chandra Prakash
STATE OF U.P. v. AJAY KUMAR SHARMA 631
v. State of UP 2002 (2) SCR 913:(2002) 4 SCC A
234; Sub-Inspector Roop/al v. Lt. Governor 1999
(5) Suppl. SCR 310:(2000) 1?--SCC 644;
Government of Andhtfi Pradesh'v. A. P Jaiswal
(2001) 1 sec 748; ....:'teferred to.
'The Second Coming' by William Butler Yeasts ·• B
- referred to.
Per Abhay Manohar Sapre. J. (Supplementing):
1.1 The issues relating to scope and interpretation
of Section 24 of the Code of Criminal Procedure, 1973, c
the issues relating to appointment, renewal, extension
of tenure of Public Prosecutor/District Government
Counsel, their nature and the provisions of (UP
Government) Legal Remembrance's Manual and, in
particular, provisions dealing with such appointment/ D
renewal/extension of tenure etc. remain no more res-
integra and stand authoritatively decided by a Bench of
three judges in Johri Mal's case and is concurred with.
In these circumstances and keeping in view the said
authorita_tive pronouncement there does not arise any E
occasion to again examine the same issues more so
when in these very proceedings though at the instance
of some other persons, it came to be decided by this
Court. [Para 2-3] [651-E-G; 652-B-C]
F
1.2 The principles of "precedent" and "Stare
Decisis" command to follow the law laid down by this
Court and more so when it was rendered by a Bench
consisted of three judges. The High Court though dealt
with the issues but "incorrectly" thereby calling for G
interference. Therefore, the fresh appointments to be
now made keeping in view the apt observations made
especially in the case of Johri Mal and what is held in
main judgment. [Para 4-6) [652-C-F)
H
632 SUPREME COURT REPORTS [2015] 12 S:C.R.
A State of UP v. Johri Mal2004 (1) Suppl. SCR 560
: (2004) 4 sec 714- relied on.
State of UP &Ors. vs. Rakesh Kumar Keshari &
Anr. 2011 (5) scR 1060: (2011) 5 sec 341;
Centre for Public Interest Litigation & Ors. vs.
8
Union of India &Ors. (2012) 3 SCC 117; Deepak
Aggarvval vs. Keshav Kaushik & Ors. 2013 (1)
SCR 402 : (2013) 5 SCC 277; State of U.P. &Ors.
VS. Satyavrat Singh (2014) 14 sec 548)- referred
c to.
'
Case Law Reference
Per Vikramajit Sen 1 J.
2012 (30) LCD 1066 referred to. Para 4
1990 (1) Suppl. SCR 625 referred to. Para 8
D
1994 (1) SCR 348 referred to. Para 8
2011 (5) SCR 1060 referred to. Para 9
(1993) Supp 2 sec 734 referred to. Para 9
1989 (2 ) SCR 697 referred to. Para 9
E 2005 (1) SCR 913 referred to. Para 9
2012 (13) SCR 265 referred to. Para 9
1989 (3) SCR 316 referred to. Para 12
2002 (2) SCR 913 referred to. Para 13
1999 (5) Suppl. SCR 310 referred to. Para 13
F
(2001) 1 sec 748 referred to. Para 13
2004 (1) Suppl. SCR 560 relied on. Para 15, 16
Per Abha~ Manohar Sa~re 1 J.
G 2004 (1) Suppl. SCR 560 relied on. Para 2, 3, 6
2011 (5) SCR 1060 referred to Para 2
(2012) 3 sec 111 referred to Para 2
2013 (1) SCR 402 referred to Para 2
(2014) 14 sec 548 referred to Para 2
H
STATE OF U.P. v. AJAY KUMAR SHARMA 633
CIVIL APPELLATE JURISDICTION : CIVIL APPEAL A
NO. 13727 of2015
From the Judgment and Order dated 05.11.2014 of the
Division Bench of High Court of Judicature at Allahabad,
Lucknow Bench, Lucknow in Writ Petition being Misc. Bench B
No. 9127 of2012
WITH
C. A. NOS. 13728 OF 2015
Vijay Bahadur Singh, Kapil Sibal, Gaurav Bhatia, M. R. C
Shamshad, Ashok_ Lal, Uday Pratap Singh, Ms. Nida Khan,
Shashank Singh, Rajat Singh, Aditya Samaddar, Ahmad S.
Azhar, Adit S. Pujari, Monoj Goel, Shuvodeep Roy, Ms. Preetika
Dwivedi, Rakesh Mishra, fortheAppellant.
D
Aman Lekhi, Colin Gonsalves, Salman Khurshid,
Saurabh Lavania, Achintya Dvivedi, Adnan Siddiqui,
Bhagabati Prasad Padhy, Mohit Chaudhary, Ms. Vaishali Mittal,
J. K. Sharma, Ms. Puja Sharma, Kezho, Satya Mitra, Pradeep
Kumar Mathur, P. K. Jain, Saurabh Jain, P, K, Goswami, S. P. E
Singh Rathore, Uday Prakash Yadav, Mukesh K. Giri, Rana
Ranjit Singh, Vivek Kr. Singh, Rashid Saeed, Shuvodeep Roy,
J. M. Sharma, Ajit Sharma, Akshat Sharma, Nitin Singh, Roh it
Singh Neeraj Kumar Srivastava, Pawan Kumar Shukla, Pankaj
Kumar Singh, Ashutosh Dubey, Mahindra Dubey, Dr. Vined F
KumarTewari, lmtiazAhmed, Mrs. Naghma lmtiaz, Ms.Amra
Moosavi, (for M/s. Equity Lex Associates), ShakilAhmed Syed,
DaanishAhmed Syed, Uzmi Jameel Hussain, Mohd. Parvez
Dabas. Milan Laskar, Anoop Kumar Shrivastava, Bhanu G
Pratap Singh, Varun Singh, Vipin Kr. Saxena for the
Respondents.
The Judgments of ti1e Court were delivered by
VIKRAMAJIT SEN, J. 1 Leave granted. H
634 SUPREME COURT REPORTS [2015] 12 S.C.R.
i
A 2. Applications for correcting the cause title and all the
applir..ations for impleadment as party respondent are allowed.
'
3. In these Appeals, we are concerned with the renewal
as also the appointment of District Government Counsel (Civil
B and Criminal) in the Subordinate Courts across the State of
Uttar Pradesh. The State as the Appellant, has assailed the
final judgment and order dated 5.11.2014 in Writ Petition being
Misc. Bench No. 9127 of2012 passed by a Division Bench of
the High Court of Judicature at Allahabad, Lucknow Bench.
C The High Court in this impugned Order has quashed the Orders
of the State Government terminating the appointment of District
Government Counsel and has further ·directed the State
Government to reconsider their renewal. Indubitably, the
appointments as well as the renewals would have to be in
D consonance with Section 24 of the Code of Criminal Procedure
(Cr.P.C. for brevity) and the Legal Remembrancer Manual
(hereinafter referred to as the 'LR Manual') appl_icable
throughout the State of U. P. The Manual which came into force
in 1975 inter alia prescribes mandatory 'consultation' with the
E District Judge and the District Magistrate on the one side and
the State on the other.
4. In August 2008, the then State Government, in terms
of the Govt:rnment Order dated 13.8.2008, had amended the
F LR Manual thereby removing the process of consultation with
the District Judge for the appointment of District Government
Counsel; effectively, thereafter the LR Manual required the State
to only consult with the District Magistrate. It was on the basis
of the LR Manual as amended that the Respondents before
G us came to be appointed as District Government Counsel
across the length and breadth of the State of U.P. This is a
noteworthy feature on which our decision will turn in some
measure. The State Government's Order, wtpch is dated
13.8.2008, came to be assailed before the High Court of
H
STATE OF U.P. v. AJAY KUMAR SHARMA 635
[VIKRAMAJIT SEN, J.]
Judicature at Allahabad, Lucknow Bench in a bunch of more A
than 100 writ petitions, including the lead petition U.P. Shaskiya
Adhivakta Kalyan Samiti v. State of U.P. Writ Petition Misc.
Bench No. 7851 of 2008 reported as (2012 (30) LCD 1066).
By an Order dated 6.1.2012 passed in those proceedings,
the High Court directed the State to make fresh appointments B
expeditiously, and in the interregnum permitted the existing
empanelled Advocates to discharge their duties. Shortly
thereafter, in Bishan Pal Saxena v. State of U.P. Writ Petition
Misc. Bench No. 8246 of 2011, in terms of its Order dated
12.1.2012 the High Court directed the State of U.P. to C
reconsider the selection and appointment of Advocates to the
"post of Additional District Government Counsel, Assistant
District Government Counsel, Panel lawyers and Sub District
Government Counsel"; that the persons appointed in D
pursuance of old provisions would continue till the completion
of the reconsideration process; and, all fresh appointments
would be carried out strictly in conformity with U.P. Shaskiya
Adhivakta Kalyan Samiti and Sadhna Sharma v. State of
U.P [Writ Petition Misc. Bench No. 7825 of 2011].
E
5. Aggrieved by the aforementioned Judgments, the
State Government filed Special Leave Petitions No. 4042-
4043 of 2012 titled State of U.P. & Ors. v. Sadhna Sharma,
during the pendency of which there was a change in the State
Government. Immediately thereupon, a prayer was made F
before this Court for withdrawal of the Special Leave Petitions
on the predication that the newly elected State Government
had accepted the assailed judgments of the High Court of
Allahabad and accordingly intended to implement it in its G
entirety. In the course of disposing of these SLPs this Court
pointedly and poignantly observed that the constitutional validity
of Section 24 Cr.P.C. had not been challenged. This Court
noted the unanimity in the opinion that the assailed judgments
of the High Court would be implemented. Nevertheless, three H
636 SUPREME COURT REPORTS [2015] 12 S.C.R.
A "clarifications" were recorded. Firstly, that the appointments
made in consultation wit~ the High Court and/or the District
and Sessions Judge of the concerned district would not be
disturbed. Secondly - "Against the existing vacancies the
cases of all the appellants herein, who are in service or are
B out of service as well as any of the petitioners before the High
Courts, whose services were terminated at any point of time
including the persons who had filed the Writ Petitions in the
High Court during the pendency of writ_petition and/or the
present civil appeals shall be considered for renewal/
C reconsideration in accordance with the judgment of this Court
within a period of three months from today...... " Thirdly, personal
responsibility was fastened on the Secretary, Department of
Law and Justice, Government of U.P. to complete the above
D appointments. Writ Petition No. 6069 of 2012 filed by Harsh
Gupta and Others [titled Harsh Gupta v. State of U.P.] was
disposed of by the High Court on 25.7.2012 in terms of the
aforementioned Order of this Court.
6. Consequent upon the passing of the above orders, the
E State Government issued a Government Order dated
11.6.2012 to the effect that the appointment of all District
Government Counsels should be cancelled. However, the
incumbents were permitted to continue to discharge their duties
F till fresh appointments were made. The District Magistrates
were to verify the number of vacancies on the Civil, Criminal
and Revenue sides.
7. In terms of the Government Order dated 5.9.2012,
pursuant to the Judgments of the Supre1J1e Court dated
G 17.7.2012 and of the High Courton 25.7.2012, the engagement
of the Respondents was put to an end and their renewal in the
light of consultation reports was awaited. This lead to the
filing of writ petitions, including Ajay Kumar Sharma & Anr. v.
State of U.P. [Writ Petition Misc. Bench No. 9127 of 2012],
H
STATE OF U.P. v. AJAY KUMAR SHARMA 637
[VIKRAMAJIT SEN, J.]
terming the cessation of the appointment as arbitrary. However, A
this Court vide Order dated 13.11.2013 directed that "the
cases of renewal of appointment of the existing incumbent shall
likewise be considered in accordance with the provisions
contained in LR Manual and the judgments of this Court. This
exercise shall be undertaken and completed within a period B
of four months from today." Eventually, in terms of the final
Order dated 5.11.2014, which stands impugned before us, the
High Court in Ajay Kumar Sharma &Anr. v. State of U.P. issued
a Certiorari quashing the Orders declining renewal of the
Respondents; a Mandamus directing the State Government C
to reconsider their candidature. The High Court had also
issued a Mandamus directing the Government to set up a
Directorate of Prosecution in pursuance of Section 25-A of
Code of Criminal Procedure and lastly passed a direction to D
the District Judges and District Magistrates to ensure that no
person having criminal antecedents should be permitted to
work as District Government Counsel.
8. The Learned Senior Counsel for AppellanUState, Mr.
Kap ii Sibal, submits that the impugned order of the High Court E
of Allahabad seeks to perpetuate an illegality. He relies heavily
on the decision of a Three Judge Bench of this Court, namely,
State of U.P. v. Johri Mal (2004) 4 SCC 714, to submit that an
appointment to the post of a District Counsel is a professional
appointment; no status of a public nature is conferred on the F
incumbent; as also that the LR Manual itself contains merely
Executive in~tructions which do not contain the concomitants
of Article 166(3); and therefore the LR Manual is not law under.
Article 13 of the Constitution of India; and that in Johri Mal G
this Court has expressed reservations against Kumari
Shrilekha Vidyarthi v. State of UP (1991) 1 SCC 212. Mr
Sibal has also differentiated the facts before us from those in
Kumari Shrilekha Vidyarthi, where all government counsel
were terminated en masse by a government order. On the H
638 SUPREME COURT REPORTS [2015] 12S.C.R.
A question of maintainability of a writ of Mandamus issued
against the State in the impugned order, Mr Sibal contends
that the Respondents c~mnot lay claim to a legal right nor is
the Government under a legal duty to continue their
engagement, both essential elements for a mandamus. He
B rightly concedes that a particular Respondent may seek a
Certiorari with respect to the cessation of his individual
appointments contrary to the norms of '\/Vednesbury
reasonableness'. Mr. Sibal has drawn our attention to State
of UP v. State of UP Law Officers Association (1994) 2 SCC
C 204 wherein this Court, while considering the appointments of
Chief Standing Counsel, Standing Counsel and Government
Advocates, has held that those who are appointed under an
arbitrary procedure ought not be heard to complain if the
termination of their appointments is equally arbitrary. Mr. Sibal
0
further submits that the order presently impugned before us is
per incuriam for having not adhered to the judgments rendered
by the co-ordinate benches of the High Court of Allahabad prior
to the judgment impugned before us. He further submits that
E the aforesaid judgments of the co-ordinate benches, i.e., Ram
Charan Singh Prajapati v. State of UP in writ petition (c) 46350
of 2014 and Guru Prasad v. State of UP in writ petition (c)
39935 of 2014 propound the correct view of law, inter alia that
allowing renewals to appointments made null and void in law
F amount to perpetuating an illegality. In parting, learned Senior
Counsel also contends that the argument on behalf of the
Respondents predicated upon the applicability of de facto
doctrine, is without merit.
G .. 9. Learned Senior Counsel for the Respondents, Mr.
Aman Lekhi has submitted that the State is misguided in its
approach, inasmuch as Johri Mal does not detract from
Kumari Shrilekha Yidyarthi even on facts as renewal was a
question before this Court even in the latter Two-Judge Bench
H judgment. The only reason why this Court intervened in Johri
STATE OF U.P. v. AJAY KUMAR SHARMA 639
[VIKRAMAJIT SEN, J.]
Mal, and later again in State of UP v. Rakesh Kumar Keshri A
(2011) 5 sec 341, was because in the former the
recommendation was not in favour, and in the latter the
incumbent was incompetent. Mr. Lekhi further submits that
the State Government cannot rely upon the fact that the
appointments were void because, firstly, the appointments B
were valid at that time and under extant Rules and also because
the 'de facto doctrine' comes to their rescue. He has placed
reliance upon Dr. A. R. Sircar v. State of UP (1993) Supp 2
SCC 734 to substantiate this submission. Secondly, on the
application of the doctrine of 'comity of instrumentalities', Mr. C
Lekhi learned Senior Counsel argues that the Executive cannot
be permitted to overreach or nullify judicial pronouncements.
Thirdly, that there is an element of continuity in these
appointments as emphasised in Kumari Shrilekha
0
Vidyarthi. Mr. Manoj Goel learned Counsel for some of the
other Respondents further submits that on a proper perusal of
Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna
Jayanti Mahotsav Smarak Trust v. V. R. Rudani (1989) 2 SCC
691 and the Constitutional Bench in Zee Telefilms Ltd. v. Union E
of India (2005) 4 SCC 649, it is manifest that a mandamus
cannot be denied on the ground that the duty to be enforced is
not imposed by a statute and, in fact, may even be passed in
order to enforce a contract. He has emphasised that a
Mandamus is the appropriate remedy in light of Kumari F
Shrilekha Vidyarthi because a public element is involved in
the appointment of DGCs and ADGCs which itself is ample
reason to attract Article 14 and judicial review under the
Constitution of India. Our attention has also been drawn to State
of UP v. Ashok Kumar Nigam (2013) 3 SCC 372 where this G
Court has reiterated that reasoning is the sine qua non for
refusal under the concerned provisions of LR Manual which
they claim is not a valid basis for en masse rejection. On the
issue that the impugned Judgment of the Lucknow Bench is
per incuriam, -Mr Lekhi has submitted that the impugned Order H
640 SUPREME COURT REPORTS [2015] 12 S.C.R.
A has rightly ignored the decisions of the co-ordinate Bench at
Allahabad in Ram Charan Singh Prajapati v. State of UP and
Guru Prasad v. State of UP because the Allahabad Bench itself
passed orders which are per incuriam. Learned Senior
Counsel, Mr. Jitendra Mohan Sharma also submits that the
B State Government has already agreed to reconsider the case
of renewal of government lawyers in SLP(C) 4042-43 of 2012,
State of UP v. Sadhna Sharma, and the State cannot take a
different stand now. However, it is to be noted that the State
Government withdrew the appeal with a view to implement the
C judgment of the High Court in UP Shaskiya Adhivakta Kayan
Samiti and had not agreed to reconsider the case of renewal
of government lawyers as put forth by Mr. Sharma.
10. Time and again this Court has emphatically restated
D the essentials and principles of 'Precedent' and of Stare
Decisis which are a cardinal feature of the hierarchical
character of all Common Law jL!dicial systems. The doctrine
of Precedent mandates that an exposition of law must be
followed and applied even by coordinate or co-equal Benches
E and certainly by all smaller Benches and subordinate courts.
That is to say that a smaller and a later Bench has no freedom
other than to apply the law laid down by the earlier and larger
Bench; that is the law which is said to hold the field. Apart
from Article 141, it is a policy of the courts to stand by precedent
F
and not to disturb a settled point. The purpose of precedents
is to bestow predictability on judicial decisions and it is beyond
cavil that certainty in law is an essential ingredient of rule of
law. A departure may only be made when a coordinate or co-
G equal Bench finds the previous decision to be of doubtful logic
or efficacy and consequentially, its judicial conscience is so
perturbed and aroused that it finds it impossible to follow the
existing ratio. The Bench must then comply with the discipline
of requesting the Hon'ble Chief Justice to constitute a larger
H Bench.
STATEOFU.P. v. AJAYKUMARSHARMA 641
[VIKRAMAJIT SEN, J.]
11. If binding precedents even of co-ordinate strength A
are not followed, the roots of continuity and certainty of law
which should be nurtured, strengthened perpetuated and
proliferated will instead be deracinated. Although spoken in a
totally different context, we are reminded of the opening stanza
of the poem 'The Second Coming' authored by William Butler B
Yeats. The lines obviously do not advert to the principle
of precedent but they are apposite in bringing out the wisdom
of this ancient and venerable principle.
"Turning and turning in the widening gyre c
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world."
12. In the context of interminably citing all decisions D
delivered by this Court, the Constitutional Bench in Union of
India v. Raghubir Singh (1989) 2 SCC 754 has made the
following enunciation of law:
"25. It is not necessary to refer to all the cases on the E
point. The broad guidelines are easily deducible from
what has gone before. The possibility of further defining
these guiding principles can be envisaged with further
juridical experience, and when common jurisprudential
values linking different national systems of law may make F
a consensual pattern possible. But that lies in the future.
26. There was some debate on the question whether a
Division Bench of Judges is obliged to follow the law
laid down by a Division Bench of a larger number of
Judges. Doubt has arisen on the point because of certain G
observations made by Chinnappa Reddy, J. in Javed
Ahmed Abdul Hamid Pawala v. State of Maharashtra.
Earlier, a Division Bench of two Judges, of whom he was
one, had expressed the view in TV Vatheeswaran v.
H
642 SUPREME COURT REPORTS [2015] 12 S.C.R.
A State of Tamil Nadu that delay exceeding two years in
the execution of a sentence of death should be
considered sufficient to entjtle a person under sentence
of death to invoke Article 21 of the Constitution and
demand the quashing of the sentence of death. This
B would be so, he observed, even if the delay in the
execution was occasioned by the time necessary for filing
an appeal or for considering the reprieve of the accused
or some other cause for which the accused himself may
be responsible. This view was found unacceptable by a
c Bench of three-Judges in Sher Singh v. State of Punjab,
where the learned Judges observed that no hard and
fast rule could be laid down in the matter. In direct
disagreement with the view in T. V. Vatheeswaran, the
learned Judges said that account had to be taken of the
D
time occupied by proceedings in the High Court and in
the Supreme Court and before the executive authorities,
and it was relevant to consider whether the delay was
attributable to the conduct of the accused. As a member
of another Bench of two Judges, in Javed Ahmed Abdul
E
Hamid Pawala Chinnapa Reddy, J. questioned the
validity of the observations made in Sher Singh and went
on to note, without expressing any concluded opinion on
the point, that it was a serious question:
F "Whether a Division Bench of three-Judges could purport
to overrule the judgment of a Division Bench of two
Judges merely because three is larger than two. The
Court sits in Divisions of two and three-Judges for the
sake of convenience c:nd it may be inappropriate for a
G Division Bench of three-Judges to purport to overrule the
decision of a Division Bench of two Judges. (Vide Young
v. Bristol Aeroplane Co. Ltd.) It may be otherwise where
a Full Bench or a Constitution Bench does so."
H It is pertinent to record here that because of the doubt
STATE OF U.P. v. AJAY KUMAR SHARMA 643
[VIKRAMAJIT SEN, J.]
cast on the validity of the opinion in Sher Singh, the A
question of the effect of delay on the execution of a death
sentence was referred to a Division Bench of five Judges,
and in Triveniben v. State of Gujarat, the Constitution /
Bench overruled TV. Vatheeswaran.
B
27. What then should be the position in regard to the
effect of the law pronounced by a Division Bench in
relation to a case raising the same point subsequently
before a Division Bench of a smaller number of Judges?
There is no constitutional or statutory prescription in the c
matter, and the point is governed entirely by the practice
in India of the courts sanctified by repeated affirmation
over a century of time. It cannot be doubted that in order
to promote consistency and certainty in the law laid down
by a superior Court, the ideal condition would be that the D
entire Court should sit in all cases to decide questions
of law, and for that reason the Supreme Court of the
United States ~loes so. But having regard to the volume
of work demanding the attention of the Court, it has been
found necessary in India as a general rule of practice E
and convenience that the Court should sit in Divisions,
each Division being constituted of Judges whose number
may be determined by the exigencies of judicial need,
by the nature of the c.ase including any statutory mandate
relative thereto, and by such other considerations which F
the Chief Justice,' in whom such authority devolves by
convention, may find most appropriate. It is in order to
guard against the possibility of inconsistent decisions
on points of law by different Division Benches that the
Rule has been evolved, in order to promote consistency G
and certainty in the development of the law and its
contemporary status, that the statement of the law by a
Division Bench is considered binding on a Division
Bench of the same or lesser number of Judges. This
H
644 SUPREME COURT REPORTS [2015] 12 S.C.R.
A principle has been followed in India by several
generations of Judges. \Ne may refer to a few of the
recent cases on the point. In John Martin v. State of West
Bengal, a Division Bench of three-Judges found it right
to follow the law declared in Haradhan Saha v. State of
B West Bengal, decided by a Division Bench of five
Judges, in preference to Bhut Nath Mate v. State of West
Bengal decided by a Division Bench of two Judges.
Again in Indira Nehru Gandhiv. Raj Narain, Beg, J. held
that the Constitution Bench of five Judges was bound by
c the Constitution Bench of thirteen Judges in
Kesavananda Bharati v. State of Kera/a. In Ganapati
Sitaram Balvalkarv. Waman Shripad Mage, this Court
expressly stated that the view taken on a point of law by
a Division Bench of four Judges of this Court was binding
D
on a Division Bench of three-Judges of the Court.And in
Mattu/al v. Radhe Lal, this Court specifically observed
that where the view expressed by two different Division
Benches of this Court could not be reconciled, the
pronouncement of a Division Bench of a larger number
E
of Judges had to be preferred over the decision of a
Division Bench of a smaller number of Judges. This Court
also laid down · in Acharya Maharajshri
Narandraprasadji Anandprasadji Maharaj v. State of
F Gujarat that even where the strength of two differing
Division Benches consisted of the same number of
Judges, it was not open to one Division Bench to decide
the correctness or otherwise of the views of the other.
The principle was reaffirmed in Union of India v. Godfrey
G Philips India Ltd. which noted that a Division Bench of
two Judges of this Court in Jit Ram Shiv Kumarv. State
of Haryana had differed from the view taken by an earlier
Division Bench of two Judges in Motila/ Padampat
Sugar Mills v. State of UP on the point whether the
H doctrine of promissory estoppel could be defeated by
STATE OF U.P. v. AJAY KUMAR SHARMA 645
[VIKRAMAJIT SEN, J.]
invoking the defence of executive necessity, and holding A·
that to do so was wholly unacceptable reference was
made to the well accepted and desirable practice of the
later Bench referring the case to a larger Bench when
the learned Judges found that the situation called for such
reference. B
28. We are of opinion that a pronouncement of law by a
Division Bench of this Court is binding on a Division
Bench of the same or a smaller number of Judges, and
in order that such decision be binding, it is .not necessary c
that it should be a decision rendered by the Full Court or
a Constitution Bench of the Court. We would, however,
like to think that for the purpose of imparting certainty
and endowing due authority decisions of this Court in
the future should be rendered by Division Benches of at D
least three-Judges unless, for compelling reasons, that
is not conveniently possible."
13. In a more recent decision of this Court, a Bench of 5
Judges in Chandra Prakash v. State of UP (2002) 4 SCC E
234 reaffirmed the principle enunciated above in Raghubir
Singh's case, and reference may be had to the following
extract therefrom :
"22. A careful perusal of the above judgments shows that
this Court took note of the hierarchical character of the F
judicial system in India. It also held that it is of paramount
importance that the law declared by this Court should be
certain, clear and consistent. As stated in the above
judgments, it is of comm~m knowledge that most of the
decisions of this Court are of significance not merely G
because they constitute an adjudication on the rights of
the parties and resolve the disputes between them but
also because in doing so they embody a declaration of
law operating as a binding principle in future cases. The H
646 SUPREME COURT REPORTS [2015] 12 S.C.R.
A doctrine of binding precedent is of utmost importance in
the adminjstration of our judicial system. It promotes
certainty and consistency in judicial decisions. Judicial
consistency promotes confidence in the system,
thmefore, there is this need for consistency in the
B enunciation of legal principles in the decisions of this
Court. It is in the above context, this Court in the case of
Raghubir Singh held that a pronouncement of law by a
Division Bench of this Court is binding on a Division
Bench of the same or smaller number of Judges. It is in
c furtherance of this enunciation of law, this Court in the
latter judgment of Parija held that: (SCC p. 4, para 6)
"But if a Bench of two learned Judges concludes that
an earlier judgment of three learned Judgcls is so very
D incorrect that in no circumstances can it be followed,
the proper course for it to adopt is to refer the matter
before it to a Bench of three learned Judges setting
out, as has been done here, the reasons why it could
not agree with the earlier judgment. If, then, the Bench
E of three learned Judges also comes to the conclusion
that the earlier judgment of a Bench of three learned
Judges is incorrect, reference to a Bench of five
learned Judges is justified.""
F Applying Sub-Inspector Rooplal v. Lt. Governor (2000) 1 SCC
644, this Court in Government of Andhra Pradesh v. A P.
Jaiswal, (2001) 1 sec 748 has said that:
"Consistency is the cornerstone of the administration of
G justice. It is consistency which creates confidence in the
system and this consistency can never be achieved
without respect to the rule of finality. It is with a view to
achieve consistency in judicial pronouncements, the
courts have evolved the rule of precedents, principle of
H stare decisis etc. These rules and principles are based
STATE OF U.P. v. AJAY KUMAR SHARMA 647
[VIKRAMAJIT SEN, J.]
on public policy and if these are not followed by courts A
then there will be chaos in the administration of justice,
which we see in plenty in this case."
14. Sitting In a Division Bench of two, we at present can
do no better than apply the rules of precedent as have been B
left for us to follow. The law pertaining to the appointment of
Additional District Government Counsel, Assistant District
Government Counsel, Panel lawyers and Sub District
Government Counsel was directly in issue before the Three-
Judge Bench in State of U.P. v. Johri Mal (2004) 4 SCC 714 C
where the law has been comprehensively clarified. No purpose
is served by discussing Kumari ShrilekhaVidyarthi or any
judgments rendered thereafter.
15. In Johri Mal, this Court perused the LR Manual as D
also the Code of Criminal Procedure and reiterated that the
District Counsel stood professionally engaged; that the State
Government was free to determine the course of action after
being satisfied of their performance, and that the Courts must
be circumspect in the exercise of judicial review on matters E
which fell within the discretion of the State Government, i.e.
appointment of their counsel or advocates. This Court
reiterated that the District Counsels do not enjoy the statutory
rights with respect to the renewals of tenures and the State
Government enjoyed the discretionary powers in this respect. F
The curial performance of the advocates should not be the
sole criterion for their re-appointment as District Counsel and
that the State Government must be free to repose trust and
confidence in the persons whom they choose to appoint as
their advocates. We can do no better than reproduce the G
following paragraphs from this judgmentwhich is binding on
us as also on any and every other Two-Judges Bench:
"40. So long as in appointing a counsel the procedures
laid down under the Code of Criminal Procedure are H
648 SUPREME COURT REPORTS [2015] 12 S.C.R.
A followed and a reasonable or fair procedure is adopted,
the court wiU normally not interfere with the decision. The
nature of the office held by a lawyer vis-a-vis the State
being in the nature of professional engagements, the
courts are normally chary to overturn any decision unless
B 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 not
speak of renewal or extension of tenure. The extension
c 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 no legal enforceable right as such .... "
D 41. In Om Kumarv. Union of India (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
'E reviewing courts to consider the correctness Of the level
of discrimination applied and whether 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
F may be applied. The action of the State, thus, must be
judged with extreme care and circumspection. It must
be borne in mind thatthe rights of the Public Prosecutor
or the District Counsel do not flow under a statute.
Although, discretionary powers are not beyond the pale
G of judicial revie.w, the courts, it is trite, allow the public
authorities sufficient elbow space/play in the joints for a
proper exercise of discretion.
H 44. Only when good and competent counsel are
STATE OF U.P. v. AJAY KUMAR SHARMA 649
[VIKRAMAJIT SEN, J.]
appointed by the State, the public interest would be A
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 turn would have a direct impact on
sustenance of democracy. No appointment of Public B
Prosecutors or District Counsel should, thus, be made
either for pursuing a political purpose or for giving some
undue advantage to a section of the people. Retention
of its counsel by the State must be weighed on the scale
of public interest. The State should replace an efficient, C
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.
D
46. 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 E
matter of extension or renewal of the term of Public
Prosecutors, the State is required to act fairly and
reasonably. The State normally would be bound to follow
the principles laid down in the Legal Remembrancer's
Manual. F
75. 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 G
counsel, the choice is that of the Government and none
can 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 H
650 SUPREME COURT REPORTS [2015] 12 S.C.R
A in the Code of Criminal Procedure are public
functionaries. They also have a public duty to perform. If
the State fails to discharge its public duty or acts in
defiance, deviation and departure of the principles of law,
the court may interfere. The court may also interfere when
B 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 dehors
c the statute. "
16. It is beyond cavil that it is in the interest of the
dispensation of criminal justice that competent counsel
possessing integrity should alone be appointed, since
D otherwise, there is a strong possibility of miscarriage of justice.
In choosing them, 1he State will not only have to be satisfied of
their forensic competence, but also that they are bereft of any
criminal antecedents. This, however, does not mean that the
persons presently discharging the duties of Additional District
E Government Counsel, Assistant District Government Counsel,
Panel lawyers and Sub District Government Counsel stand
appointed to civil posts, thereby creating a right of continuity.
In our opinion, which is an echo of that articulated in Johri
Mal, the State, like any other litigant, must have the freedom to
F appoint counsel in whom they repose trust and confidence.
The only expectation is that the choice made by the State should
not be such as could defeat the sacred and onerous
responsibility of ensuring that the justice is meted out to all
G citizens. In Johri Mal, this Court has categorically rejected
the claim of an advocate to continuous renewal or re-
appointment as a Government Advocate. We entirely agree
with this exposition of the law. We think that the correct
approach is to ensure the competency of advocates being
H considered for appointment of Additional District Government
STATE OF U.P. v. AJAY KUMAR SHARMA 651
Counsel, Assistant District Government Counsel,. Panel lawyers A
and Sub District Government Counsel. It seems to us that it
would be an incorrect approach to start this process by
considering the re-appoiRtment or renewal of existing
Government Counsels since that would dilute, nay, dissolve
the discretion of the Government to appoint advocates whom B
they find trustworthy. The High Court has followed the second
approach leading to the dissatisfaction of the State
Government and their resentment that their realm of discretion
has been eroded for no justifiable reason.
c
17. The Appeals are allowed. The impugned Judgment
is set aside, but without imposition of costs. Fresh
appointments to be made expeditiously.
ABHAY MANOHAR SAPRE, J. 1. I have had the benefit D
of reading the scholarly judgment of my learned Brother Justice
Vikramajit Sen and I am in respectful agreement with his
opinion. I, however, add only few words of concurrence.
2. I entirely agree with my learned Brother that the issues E
which are the subject matter of these appeals such as issues
relating to scope and interpretation of Section 24 of the Code
of Criminal Procedure, 1973 (in short "Cr.P.C."), the issues·
relating to appointment, renewal, extension of tenure of Public
Prosecutor/District Government Counsel, their nature and lastly F
· provisions of (UP Government) Legal Remembrance's Manual
.and, in particular, provisions dealing with such appointment/
renewal/extension of tenure etc. remain no more res-integra
and stand authoritatively decided by a Bench of three judges
in State of U.P. vs. Johri Mal (2004) 4 SCC 714. This G
decision was followed consistently by this Court as and when
these issues arose for consideration (see State of U.P. & Ors.
vs. Rakesh Kumar Keshari & Anr. (2011) 5 SCC 341,
Centre for Public Interest Litigation & Ors. vs. Union of
India & Ors., (2012) 3 SCC 117, Deepak Aggarwal vs. H
652 SUPREME COURT REPORTS [2015] 12 S.C.R.
A Keshav Kaushik & Ors. (2013) 5 SCC 277 and State of
U.P. & Ors. vs. Satyavrat Singh (2014) 14 SCC 548).
3. In these circumstances and keeping in view the
authoritative pronouncement rendered in Johri Mal' case
B (supra), there does not arise a_ny occasion to again examine
the same issues more so when in these ver'I proceedings
though at the instance of some other pers<l•i~. these issues
had reached to this Court on previous occasions as mentioned
by my learned Brother in the main judgment which also came
C to be decided by this Court.
4. Indeed the principles of "precedenf' and "Stare
Decisis" command us to follow the law laid down by this Court
and more so when it was rendered by a Bench consisted of·
o three judges.
5. I am also of the view that the High Court though dealt
with the issues but as aptly put by my learned Brother in
paragraph 15 "incorrectly" thereby calling our interference.
E 6. In my considered opinion, therefore, the fresh
appointments to be now made keeping in view the apt
observations made especially in the case of Johri Mal (supra)
(paras 40 to 44) and what is held hereinabove in main judgment.
F Nidhi Jain Appeals allowed.
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