Holding

The State must adhere to the procedural safeguards in the Legal Remembrancer's Manual for renewal, and a blanket refusal without considering the required recommendations is arbitrary and violative of Articles 14, 16 and 311; the right is only to consideration, not to appointment.

Summary

Ashok Kumar Nigam, a District Government Counsel, applied for renewal of his term. The State Government declined renewal by a blanket order dated 3 April 2008, without considering the recommendations of the District Judge and District Magistrate as required by the Legal Remembrancer's Manual. The High Court set aside the order, directing that renewal be considered according to the Manual and allowing Nigam to continue until a decision was made. The State appealed, arguing it could terminate the appointment at will under para 7.06(3) and that the High Court should not have directed continuation up to age 60/62. The Supreme Court held that the State must follow the prescribed procedure, that the right is only to consideration and not to appointment, and that the order was arbitrary, a non‑speaking order lacking application of mind, violating Articles 14, 16 and 311. While it cautioned the High Court against over‑reaching directions on age, it affirmed the High Court’s finding and ordered the State to consider renewal expeditiously. All appeals were dismissed.

Issues considered

The State Government's power to decline renewal of a District Government Counsel without considering the District Judge and District Magistrate's recommendations.
Constitutionality of para 7.06(3) of the Legal Remembrancer's Manual allowing termination "at any time without assigning any cause" under Articles 14, 16 and 311.
Whether the High Court could direct continuation of the counsel's service up to the age limits, i.e., right to appointment versus right to consideration.
The validity of the order dated 3 April 2008 as a non‑speaking, arbitrary order lacking application of mind.

Legislation cited

Constitution of Indias. Art. 14, s. Art. 16, s. Art. 311

Subjects

Administrative lawJudicial reviewNon‑speaking orderNatural justiceArticles 14, 16, 311Legal Remembrancer's ManualDistrict Government CounselRenewal of termArbitrariness

Judgment

[2012] 13 S.C.R. 265

STATE OF U.P. & ORS. A
V.
ASHOK KUMAR NIGAM
(Civil Appeal Nos. 9029 of 2012 etc.)

DECEMBER 13, 2012
B
[SWATANTER KUMAR AND
SUDHANSU JYOTI MUKHOPADHAYA, JJ.]

Legal Rememberancer's Manual (Uttar Pradesh):
c
Para 7.06 to 7.08 - Renewal of term of District
Government Counsel - Declined by State Government -
Order set aside by High Court - Held: The right of
consideration for renewal for the specified period is a
legitimate right vested in an applicant and he can be deprived · 0
of such right and be declined renewal where his work is
unsatisfactory and is so reported by the specified authorities
- It was not permissible for the government to take recourse
to Para 7.06 (3) in the manner in which it has done - High
Court has held that the request for renewal has been declined E
by a decision en block, without considering the
recommendation of District Judge and District Magistrate -
The arbitrary act of the State cannot be excluded from the
ambit of judicial review merely on the ground that it is a
contractual matter - Besides, the order is a non-speaking
F
order which suffers from non-application of mind - However,
High Court should not have directed appointments while
regulating the age - There is right of consideration, but none
can claim right to appointment - Thus, while declining to
interfere with judgment of High Court, it is directed that the
government shall consider cases of respondents for renewal G
in accordance with the procedure prescribed and criteria laid
down under Paras 7. 06 to 7. 08 of the LR Manual
expedit[ously - Constitution of India, 1950 - Arts. 14 and 16
- Interpretation of statut1...s - Administrative law - Judicial
265 H
266 SUPREME COURT REPORTS [2012] 13 S.C.R.

A review - Non-speaking administrative order.

Words and Phrases:

Expressions, "without assigning any cause" and "without
existence of any cause" - Connotation of
B
The respondent in C.A. No. 9029 of 2012 was
appointed as District Government Council on 17.9.2004.
His term was renewed on 3.3.2006 for a period upto
5.3.2007. He made an application for renewal of his term
c on 19.1.2007. The District Judge and the District
Magistrate gave their recommendations for renewal of his
term. However, the :State Government, by order dated
3.4.2008, declined the renewal resulting in cancellation of
engagement of the respondent alongwith several others.
0 He filed a writ petitio n before the High Court, which set
1

aside the order dated 3.4.2008 and granted further relief
to the effect that renewal of the respondent's term be
considered in accordance with the relevant provisions of
L.R. Manual, if he had not crossed the age of 60 years but
E if he had attained the age of 60 years and had not
reached the age of 62, his case be considered for
extension upto the age of 62 years. Aggrieved, the State
Government filed the appeal. The other appeals were filed
In similar circumstances.

F Dismissing the appeals, the Court

HELD: 1.1 Under the provisions of the Legal
Remembrancer's Manual, the appointments are to be
made and renewal to be considered upon the
G recommendation of tile District Officer and the District
Judge [Para 67.6 to 7.8].
The rules also state the factors which are to weigh
in the mind of the recommending authority while
recommending or declining to recommend renewal of
H
STATE OF U.P. & ORS. v. ASHOK KUMAR NIGAM 267

term of the government pleaders. The rules provide a A
procedure and even require the State Government to
consider the case for renewal of the government counsel
whose term is coming to an end. The scheme of para 7.06
of the Manual is that the appointment of a government
pleader is to be made for a period of one year and at the 8
end of the period, the District Officer in consultation with
the District Judge is required to submit a report on the
worlc and conduct to the Legal Remembrancer together
with the work done, in Form 9. It is only when his work
or conduct is found to be unsatisfactory that it is so C
reported to the government for appropriate orders. If the
report is satisfactory, the rule requires that he may be
furnished with a deed of engagement in form I, for a term
not exceeding three years, on his first engagement. Thus,
the onus is shifted to the State to show that it had acted
in accordance with the prescribed procedure and its D
action does not suffer from the vice of discrimination and
arbitrariness .. In terms of para 7.06 (3), the Government
reserves the power to terminate the appointment of any
District Government Counsel at any time without
assigning any cause. One has to examine the entire E
scheme of para 7.06 (3). It cannot be read In Isolation.
[para 9 and 13] [275-G; 279-B·E]

1.2 The right of consideration for renewal for the
specified period Is a legitimate right vested In an applicant F
and he can be deprived of such right and be declined
renewal where his work Is unsatisfactory and Is so
reported by the specified authorities. It was not permissible
for the government to take recourse to Para 7.06 (3) In the
manner In which It has done. If It Is construed that the G
government has an absolute right to terminate the
appointment at any time without specifying any reason, It
will be violative of Arts. 14 and 16 of the Constitution of
India and such rule shall be arbitrary, thus, notsustalnable
In law. [para 13-14] [279·F·G; 282·C]
H
268 SUPREME COURT REPORTS [2012] 13 S.C.R.

A Delhi Transport Corporation v. D. T. C. Mazdoor Congress
1990 (1) Suppl. SCR 142 = 1991 Supp. (1) sec 600 -
relied on.

1.3 Total non-applic11tion of mind and the order being
supported by no reason whatsoever would render the
8 order passed as 'arbitrary'. Arbitrariness shall vitiate the
administrative order. The arbitrary act of the State cannot
be excluded from the ambit of judicial review merely on
the ground that it is a cc>ntractual matter. The expression
'at any time without assigning any cause', can be divided
C into two portions, one "at any time", which merely means
the termination may be made even during the
subsisten.ce of the term of appointment and second,
"without assigning any cause" which means without
communicating any cause to the appointee whose
D appointment is terminated. However, "without assigning
any cause" is not to be equated with "without existence
of any cause". [para 13, and 15] [279-A-B; Z82-E-G]

Assistant Commissioner, Commercial Tax Department,
E Works Contract and Leasing v. Shukla and Brothers 2010 (4)
=
SCR 627 (2010) 4 SCC 785 • relied on.
1.4 In the instant case, the High Court in its judgment
has noticed that the order dated 3.4.2008 clearly shows
that the request for renewal has been rejected without
F considering the recommendation of the District Judge
and District Magistrate; that the records produced did not
show proper consideration by the State Government
before refusing to grant renewal of the term of the
respondent; and that the Government had taken enblock
G decision that the renewal in the cases of such
Government Counsel whose term have come to an end
will not be granted. The! High Court examined the records
and after being satisfied that the record produced did not
exhibit proper application of mind or due consideration
H as per prescribed procedure and the action being
STATE OF U.P. & ORS. v. ASHOK KUMAR NIGAM 269

arbitrary, set aside the order dated 3.4.2008. There is A
nothing on record placed before this Court by the
appellant that could demonstrate that such view of the
High Court suffered from any infirmity. [para 12] [277-H;
278-A-E]
1.5 The order dated 3.4.2008 is even liable to be B
quashed as it is a non-speaking order also suffering from
the vice of non-application of mind. The government has
taken an enblock decision, without recording any reason,
not to renew the term of any of the government counsel.
That itself shows that there is no application of mind. The C
order dated 3.4.2008 clearly shows non-application of
mind and non-recording of reasons, which leads only to
one conclusion, that the said order was an arbitrary
exercise of power by the State. This Court finds no fault
with the reasoning of the High Court in that behalf. [para D
15 and 17] [282-D-E; 284-A-B]
Kumari Shrilekha Vidyarthi and Others v. State of U.P.
& Ors. 1990 (1) Suppl. SCR 625 = (1991) 1 sec 212 -
relied on.
E
1.6 However, the High Court should not have directed
appointments while regulating the age, as has been done
by it in operative part of its judgment. There is right of
consideration, but none can claim right to appointment.
Para 7 .06 states that renewal beyond 60 years shall F
depend upon continuous good work, sound integrity and
physical fitness of the counsel. These are the
considerations which have to be weighed by the
competent authority in the State Government to examine
whether renewal/extension beyond 60 years should be G
granted or not. That does not ipso facto mean that there
is a right to appointment upto the age of 60 years
irrespective of worlt, conduct and integrity of the counsel.
The rule provides due safeguards as it calls for the report
of the District Judge and the District Officer before
granting renewal. [para 17] [284-B-E] H
270 SUPREME COURT REPORTS [2012] 13 S.C.R.

A 1.7 Thus, while declining to interfere in the judgment
of the High Court, it is directed that the government shall
consider expeditiously the cases of the respondents for
renewal in accordance with the procedure prescribed
and criteria laid down under Paras7.06 to 7.08 of the LR
B Manual. [para 18] [284-E-F]

Case Law Reference:
1990 (1) Suppl. SCR 625 relied on para 7
1990 (1) Suppl. SCR 142 relied on para 13
c
2010 (4) SCR 627 relied on para 16

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
9029 of 2012.
D From the Judgment & Order dated 14.10.2009 of the High
Court of Judicature at Allahabad, Lucknow Bench, Lucknow in
Writ Petition No. 3208 (M/B) of 2008.
WITH
E C.A. No. 9044, 9045, 904'1, 9046, 9042, 9043, 9030, 9031,
!)032, 9033, 9034, 9039, 9038, 9037, 9036, 9035, 9040 of
2012.
S.R. Singh, Ashutosh Sharma, Gaurav Dhingra, Kamlendra
Mishra for the Appellants.
F
Manoj Goel, Shuvodeep Roy, Gopal Verma, Viparna Gaur,
Anis Ahmed Khan, Shoaib Ahmad Khan, Vijay Arora,
$udarshan Singh, Rawat, Anoop Kr. Srivastav, Vipin Kr.
Saxena, Shakil Ahmed Syed, Renjith. B, for the Respondent.
G The Judgment of the Court was delivered by
SWATANTER KUMAR J. 1. Leave granted in all the
Special Leave Petitions.
2. These appeals are directed against the judgment of the
H High Court of Judicature at Allahabad, Lucknow Bench. Though
STATE OF U.P. & ORS. v. ASHOK KUMAR NIGAM 271
[SWATANTER KUMAR, J.]
dated differently, the questions of· law involved in all these A
appeals are identical based upon somewhat similar facts.
SLP(C) No. 35569 of 2010 was filed against the order dated
24th September, 2008, SLP(C) No. 35568 of 2010 was filed
against\ the order dated 29th September, 2008, SLP(C) No.
35565 of 2010 was filed against the order dated 14th B
September, 2009, SLP(C) No. 35566 of 2010 against the order
dated 18th September, 2010, SLP(C) No. 35279 of 2009,
SLP(C) No. 24562 of 2010, SLP(C) No. 24564 of 2010 and
SLP(C) No. 35567 of 2010 against the order dated 14th
October, 2009, SLP(C) No. 12993 of 2010, SLP(C) No. 24563 c
of 2010 and SLP(C) No. 35561 of 2010 against the order
dated 16th November, 2009, SLP(C) No. 11261 of 2010
against the order dated 21st January, 2010, SLP(C) No. 35562
of 2010 against the order dated 9th April, 2010, SLP(C) No.
9156 of 2011 against the order dated 19th January, 2011, D
SLP(C) No. 20918 of 2011 and SLP(C) No. 13788 of 2011
against the order dated 28th April, 2011, SLP(C) No. 20917
of 2011 against the order dated 29th April, 2011 and SLP(C)
No. 18407 of 2011 against the order dated 26th April, 2011.
3. We have taken the case of Ashok Kumar Nigam E
(supra) i.e. Civil Appeal @ SLP(C) No. 35279 of 2009 as the
lead case. Before we proceed to notice the facts giving rise to
the present appeal in that case, it is necessary for us to notice
that SLP (Civil) No. 9156 of 2011 has been directed against
an interim order passed by the Division Bench of that High Court F
in Miscellaneous Bench No. 523 of 2003 titled "Pramod
Sharma v. State of Uttar Pradesh". The interim order dated
19.1.2011 had directed that no regular appointment shall be
made on the post Government Advocate in place of the
appellant. Vide its judgment dated 10th February, 2011, the G
Division Bench of the High Court finally disposed of the interim
application by staying the operation of the orders dated 24th
December, 2010 and 28th December, 2010 passed by the
respondents. It further directed that the appellant be allowed to
continue as the District Government Counsel (Criminal) subject H
2;72 SUPREME COURT REPORTS [2012] 13 S.C.R.

A to any decision being taken afresh in accordance with the
directive issued by the judgment of that Court passed in Writ
Petition No.10038(MB) of 2009. In other words, the interim order
had merged into the order of the High Court dated 1Oth
February, 2011 against which as of now, no petition has been
B filed. Thus, the special leave petition No. 9156 of 2011 has
been rendered infructuous and is accordingly dismissed as
such.
SLP(C) No. 35279 of 2009
c 4. Mr. Ashok Kumar l\ligam, respondent herein was
appointed as District Government Counsel on 17th September,
2004 vide a notification issued by the State Government. The
term of the said respondent was renewed on 3rd March, 2006
for a period of one year and as such his term came to an end
D on 5th March, 2007. The respondent submitted his application
fo'r renewal of his term on '19th January, 2007. The District
Judge, Lucknow on 26th February, 2007 gave his report and
the District Magistrate also submitted his report on 5th March,
2007 recommending the renewal of the term of the respondent.
However, the State Government, appellant herein, vide order
E dated 3rd April, 2008 refused his renewal which resulted in
cancellation of engagement of the said respondent. The order
dated 3;d April, 2008 can usefully be reproduced at this stage:-
"From
F Acharya Suresh Babu
Deputy Secretary
Government of Uttar Praidesh
To
G The District Magistrate
Lucknow
Nyay-Anubhag-3-Appointment Lkw, dated 3.4.2008
Sub: Renewal of Tenure of engagement of District
Government Counsels at the District Level
H
STATE OF U.P. & ORS. v. ASHOK KUMAR NIGAM 273
[SWATANTER KUMAR, J.]
Sir, A
With reference to your Letter No. 855/JA{2)/Advocate-
Renewal/07 dated 5.3.2007, I have been directed to say
that after due consideration, the Hon'ble Governor had
kindly ordered not to renew the tenure of engagement of
Sh. Ashok Kumar Nigam, as District Government Counsel 8
{Criminal), Lucknow.
Accordingly, in the aforesaid background, the engagement
order of Sh. Ashok Kumar Nigam, as District Government
Counsel is hereby terminated c
Please take necessary action at your end and foiward your
proposal from the panel of Advocates for being engaged
as District Government Counsel against the consequential
vacancy."
5. Aggrieved from the above order, the respondent filed D
writ petition before the High Court of Allahabad, Lucknow
Bench. In the writ petition, the stand taken by the respondent.
was that in terms of the rule, the petitioner has a right to continue
and in any case for consideration of renewal of his term, the
impugned order does not state any reasons and, in fact, does E
not take into consideration the recommendations made by the
District and Sessions Judge and the District Magistrate, who
had recommended renewal of the term of the respondent. The
High Court after hearing the counsel appearing for the parties,
vide its judgment dated 14th October, 2009, allowed the writ F
petition, setting aside the order dated 3rd April, 2008 and even
granting further relief to the appellant. The operative part of the
High Court judgment reads as under:-
"For the reasons stated above, the order impugned dated
03.04.2008 is hereby set aside. G
We are informed that no person has yet been appointed
or engaged in place of the petitioner, in view of the interim
order passed by this Court, we, therefore, further provide
that the petitioner shall be allowed to continue to discharge H
274 SUPREME COURT REPORTS [2012] 13 S.C.R.

A the functions and duties of the District Government
Counsel, till the consideration of the renewal of his term in
accordance with law. We may further clarify that the
renewal of the petitioner's term shall be considered in
accordance with the relevant provisions of L.R. manual
B (unamended para 7.08 as the amendments made in L.R.
Manual are subject matter of challenge in W.P. No. 7851
(M/B) of 2008 wherein tile implementation of the amended
provisions stand stayed) if he has not crossed the age of
60 years but if he has already attained the age of 60 years,
c but has not yet reached the age·of 62 years then his case
will be considered for extension of his term upto the age
of 62 years and for that consideration, if any further
formalities are to be completed or some certificates are
needed, he shall be given an opportunity to furnish the
same, so that his case may be considered in accordance
D
with the relevant rules. Writ petition is allowed. Cost easy."
6. Aggrieved from the above judgment of the High Court,
the State of Uttar Pradesh (appellant herein) has filed the
present appeal before this Court. The challenge to the
E impugned order is, inter alia, but primarily on the following
grounds:-
(A) In terms of the relevant rule, the State Government
has discretion to terminate the term of the District
Government Counsel (Criminal), and in any case,
F the term of the respondent had come to an end by
efflux of time, and therefore, the High Court has
exceeded its jurisdiction in setting aside the order
dated 3rd April, 2008.
(B) At best, if allowing the writ petition, the High Court
G could set aside the impugned order, but could not
direct that they be retained or continued till the age
of 60 or 62 years as the case may be. The
respondent would only have a right of consideration
and nothing more, therefore, the judgment of the
H High Court suffers from apparent errors. The High
STATE OF U.P. & ORS. v. ASHOK KUMAR NIGAM 275
[SWATANTER KUMAR, J.]
Court gave no reasons much less valid reasons for A
setting aside the order dated 3rd April, 2008.
7. Opposed to the above contentions, it is contended on
behalf of the respondents that the order dated 3rd April, 2008
was a non-speaking order and suffered from the vice of
nonapplication of mind and was arbitrary and has correctly been B
set aside by the High Court. Reliance in this regard is placed
upon the judgment of this Court in the case of Kumari Shrilekha
Vidyarthi and Others v. State of U.P. & Ors. [(1991) 1 SCC
212). Further, that the impugned order dated 3rd April, 2008
is contrary to the rules in force. The order of the High Court C
under appeal does not call for any interference.
8. Before we examine the merit or otherwise of the
contentions, it will be appropriate for this court to notice the
relevant rule. Chapter 7 of the Legal Remembrancer's Manual
deals with District Government Counsel. In terms of Para 7.01, D
the District Government Counsel are legal practitioners
appointed by the State Government to conduct in any court,.
other than the High Court, such civil, criminal or revenue cases
on behalf of the State Government as assigned to them either
generally or specially. Para 7.02 deals with the power of the E
government to appoint government counsels in the districts. As
per this provision, the government was to ordinarily appoint
District Government Counsel {Criminal), District Government
Counsel (Civil} and District Government Counsel {Revenue} for
each district, for which they have to make an application. F
9. Under these rules, the appointments are to be made and
renewal to be considered upon the recommendation of the
District Officer and the District Judge. The rules even state the
factors which are to weigh in the mind of the recommending
authority while recommending or declining to recommend G
renewal of term of the government pleaders. Paras 7.6 to 7.8
read as under:-
"7 .06. Appointment and renewal - (1) The legal
practitioner finally selected by the Government may be H
276 SUPREME COURT REPORTS [2012] 13 S.C.R.

A appointed District Government Counsel for one year from
the date of his takin~J 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 Rememberancer together
B with the statement of work done in Form no. 9. Should his
work or conduct be fC)und to be 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. 1 for
c a term no 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.
(3) The appointment of any legal practitioner as a District
D Government Counse.I is only professional engagement
terminable at will on either side and is not appointment to
a post under the Govemment. Accordingly the Government
reserves the power to terminate the appointment of any
District Government Counsel at any time without assisting
E any cause.
7.08. Renewal of term - (1) 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 work, conduct and age,
F report to the Legal Remembrancre, 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 alsio be sent along with the
G recommendations of the District Officer.
(2) Where recommendation for the extension of the term
of a District Government Counsel is made for a specified
period only, the reasons thereof shall also be stated by the
District Officer.
H
STATE OF U.P. & ORS. v. ASHOK KUMAR NIGAM 277
[SWATANTER KUMAR, J.]
(3) While fo~arding his recommendation for renewal of A
the term of a District Government Counsel -
(i) 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 B
conducting State cases, and specially his
professional conduct;
(ii) The District Officer shall give his report about
the suitability of the District Government Counsel c
from the administrative point of view, his public
reputation in general, his character, integrity and
professional conduct.
(4) If the Government agrees with the recommendations
of the District Officer for the renewal of the term of the D
Government Counsel, it may pass orders for re-appointing
him for a period not exceeding three years.
(5) If the Government decides not to re-appoint a
Government Counsel, the Legal Remembrancer may call
upon the District officer to forward fresh recommendations E
in the manner laid down in para 7.03.
(6) The procedure prescribed in this para shall be followed
on the expiry of every successive period of renewed
appointment of a District Government Counsel.•
F
10. From the above rules, it is clear that the government
counsel has to be appointed and/or his term renewed upon
recommendation of the District Judge and the District Officer
and in accordance with the procedure prescribed under the
above rules. It is only when the recommendations based upon G
stated criteria are unfavourable to the applicant in question that
the government could decline renewal of the term. In the present
case, we are not concerned with the appointment as such. All
the cases in hand are cases of renewal of term.
11. The High Court in its judgment has noticed that the H
278 SUPREME COURT REPORTS [2012) 13 S.C.R.

A order dated 3rd April, 2008 clearly shows that the request for
renewal has been rejected without considering the
recommendation of the District Judge and District Magistrate.
The High Court has even noticed in its judgment that in view of
this fact it had called for the records and the records produced
B did not show proper consideration by the State Government
before refusing to grant renewal of the term of the respondent.
The High Court also noticed that the Government had taken
enblock decision that the renewal in the cases of such
Government counsel whose term have come to an end will not
c be granted. It was in pursuance to this decision that the
government refused to grant renewal to the respondent as well.
12. The High Court had examined the records and after
being satisfied that the record produced did not exhibit proper
application of mind or due consideration as per prescribed
D procedure and the action being arbitrary, had set aside the
order dated 3rd April, 2008. There is nothing on record placed
before this court by the appellant that could demonstrate that
such view of the High Court suffered from any infirmity. The
prescribed procedures under para 7.08 of the Manual requires
E the government to invite to invite opinion of the District Judge
and District Officer, three months prior to the expiry of the term
of the District Government Counsel. By amendment, proviso
wa$ added to para 7.03 to provide that District Magistrate shall
always be free to nominate such person who may be found
F eligible but who had not submitted particulars for being
appointed as such. As per the prescribed procedure, the office
of Legal Remembrance was expected to consider the past
record of work and conduct of the concerned District
Government Counsel and then to send a report together with
G the $tatement of work done by such applicant. The High Court
had clearly stated the principie that where there is conflict
between the recommendation of the District Judge and the
District Magistrate, primacy shall be given to the report of the
Dist~ict Judge. Thus, in our opinion, the onus is shifted to the
Stat~ to show that it had acted in accordance with the
H
STATE OF U.P. & ORS. v. ASHOK KUMAR NIGAM 279
[SWATANTER KUMAR, J.]
prescribed procedure and its action does not suffer from the A
vice of discrimination and arbitrariness.
13. Total non-application of mind and the order being
supported by no reason whatsoever would render the order
passed as 'arbitrary'. Arbitrariness shall vitiate the
administrative order. The rules provide a procedure and even B
require the State Government to consider the case for renewal
of the government counsel whose term is coming to an end.
The scheme of para 7.06 of the Manual is-that appointment of
a government pleader is to be made for a period of one year
and at the end of the period, the District Officer in consultation C
with the District Judge is required to submit a report on the work
and conduct to the legal remembrancer together with the work
done in Form 9. It is only when his work or conduct is found to
be unsatisfactory that it is so reported to the government for
appropriate orders. If the report is satisfactory, the rule requires D
that he may be furnished with a deed of engagement in form I,
for a term not exceeding three years, on his first engagement.
In terms of para 7.06 (3), the Government reserves the power
to terminate the appointment of any District Government
Counsel at any time without assigning any cause. Firstly, one E
has to examine the entire scheme of para 7.06 (3). It cannot
be read in isolation. The right of consideration for renewal for
the specified period is a legitimate right vested in an applicant
and he can be deprived of such right and be declined renewal
where his work is unsatisfactory and is so reported by the F
specified authorities. It is difficult to comprehend that clause (3)
of para 7.06 can be enforced in the manner as suggested. If it
is construed, as suggested, that the government has an
absolute right to terminate the appointment at any time without
specifying any reason, it will be violative of Articles 14 and 16 G
of the Constitution of India and such rule shall be arbitrary, thus
not sustainable in law. In the case of Delhi Transport
Corporation v. D. T.C. Mazdoor Congress [1991 Supp. (1)
sec 600] while dealing with Regulation 9, which was worded
similarly, this Court held as under:-
H
l

"'· '·
280 ' lSUPREME COURT REPORTS . (2012] 13 S.C.R. I
I STATE OF U.P. & ORS. v. ASHOK KUMAR NIGAM 281
J
i [SWATANTER KUMAR, J.]
A "202. Thus on a conspectus of the catena of cases decided
by this Court the only conclusion that follows is that
I been expressly excluded by the Act or Regulation or Rule A

Regulation 9(b) which confers powers on the authority to
I which is not the case here. Rules of natural justice do not
. supplant but supplement the Rules and Regulations.
terminate the services of a permanent and confirmed . Moreover, the Rule of Law which permeates our
employee by issuing a notice terminating the services or Constitution demands that it has to· be observed both
B . -~ by making payment in lieu of notice without assigning any . substantially and procedurally. Considering from all aspect B
reasons in the order and without giving any opportunity of Regulation 9(b) is illegal and void as it is arbitrary,
· .hearing to the employee before passing the impugned discriminatory and without any guidelines for exercise of
·order is wholly'arbitrary, uncanalised and unrestricted the power. Rule of law posits that the power is to be
'violating principles of natural justice as well as Article 14 exercised.in a manner which is just, fair and reasonable
c· · of the 'constitution. It has ~lso been held consistently by and not in an unreasonable, capricious or arbitrary manner c
/this Court that the government carries on various trades leaving room for discrimination. Regulation 9(b) does not
. ·and. business. activity through the instrumentality of the expressly exclude the applic3tion of the 'audi alteram
State such as Government Company or Public partem' rule and as such the order of termination of service
· . Corporations. Such Goverriinent Company or public of a permanent employee cannot be passed by simply
Corporation being State instrumentalities are State within issuing a month's notice under Regulation 9(b) or pay in
D 0
. the meaning of Article 12 of the Constitution and as such lieu thereof without recording any reason in the order and
they are subject to the observance of fundamental rights without giving' any hearing to the employee to controvert
embodied in Part Illas well as to conform to the directive the allegation on the basis of which the purported order is
··principles in Part IV of the. Constitution. In. other words the made. · · '
I''
Service Reg!Jlations or Rules framed by. them are to be
E ·tested byJhe touchstone of Article 14 of Constitution. 203. It will be profitable to refer in this connection the E
. Furthermore, the procedure pri;iscribed by their Rules or observations of this Court in the case of Union of India v.
Regulations must be reasonable, .fair and just and not Tulsiram Patel where the constitutionality of provisions of
.. arbitrary, fanciful and unjust. Regulation 9(b), therefore, . Article 311 particularly the second Proviso to clause (2)
· confers unbridled, uncanalised and arbitrary power ori the of the said article came up for consideration. This Court
F . authority to· terminate.. the·· services·. of a· permanent referred to the findings in Roshan Lal Tandon v. Union F
.. employee without recording any reasons and without of India wherein it was h_eld that though the origin of a
conforming to the . principles of natural justice. There is no• ·1 government service is contractual yet when once appointed
. ' ., ., ' ,• • . . ' .
guideline in the Regulations or in the Act, as to when or in · to his post or office, the government servant acquires a
which eases and cirC:umstan'C:es this power of termination . status and his rights and obligations. are no longer
· determined by the consent of both the parties, but by G 'I'
! '

G by giving notice or pay in lieu of notice cari be exercised;. · .
----- · It is now well. settled th.at the ·'audi alteram· parfem' rule . statute or statut_ory .rules which may be framed and altered
. which in essence, enforces ihe equalit{clause in Article unilaterally by the government. In other words, the legal
14 of the Constitution is applicable not only to quasijudicial position of a government servant is more .one of status than
.. orders but to administrative orders.affecting prejudicially of contract. The hall-mark of status is the attachment to a
· the party-in-Question unless the application of the rule has legal relationship of rights and duties imposed by the public H
H
l

"'· '·
280 ' lSUPREME COURT REPORTS . (2012] 13 S.C.R. I
I STATE OF U.P. & ORS. v. ASHOK KUMAR NIGAM 281
J
i [SWATANTER KUMAR, J.]
A "202. Thus on a conspectus of the catena of cases decided
by this Court the only conclusion that follows is that
I been expressly excluded by the Act or Regulation or Rule A

Regulation 9(b) which confers powers on the authority to
I which is not the case here. Rules of natural justice do not
. supplant but supplement the Rules and Regulations.
terminate the services of a permanent and confirmed . Moreover, the Rule of Law which permeates our
employee by issuing a notice terminating the services or Constitution demands that it has to· be observed both
B . -~ by making payment in lieu of notice without assigning any . substantially and procedurally. Considering from all aspect B
reasons in the order and without giving any opportunity of Regulation 9(b) is illegal and void as it is arbitrary,
· .hearing to the employee before passing the impugned discriminatory and without any guidelines for exercise of
·order is wholly'arbitrary, uncanalised and unrestricted the power. Rule of law posits that the power is to be
'violating principles of natural justice as well as Article 14 exercised.in a manner which is just, fair and reasonable
c· · of the 'constitution. It has ~lso been held consistently by and not in an unreasonable, capricious or arbitrary manner c
/this Court that the government carries on various trades leaving room for discrimination. Regulation 9(b) does not
. ·and. business. activity through the instrumentality of the expressly exclude the applic3tion of the 'audi alteram
State such as Government Company or Public partem' rule and as such the order of termination of service
· . Corporations. Such Goverriinent Company or public of a permanent employee cannot be passed by simply
Corporation being State instrumentalities are State within issuing a month's notice under Regulation 9(b) or pay in
D 0
. the meaning of Article 12 of the Constitution and as such lieu thereof without recording any reason in the order and
they are subject to the observance of fundamental rights without giving' any hearing to the employee to controvert
embodied in Part Illas well as to conform to the directive the allegation on the basis of which the purported order is
··principles in Part IV of the. Constitution. In. other words the made. · · '
I''
Service Reg!Jlations or Rules framed by. them are to be
E ·tested byJhe touchstone of Article 14 of Constitution. 203. It will be profitable to refer in this connection the E
. Furthermore, the procedure pri;iscribed by their Rules or observations of this Court in the case of Union of India v.
Regulations must be reasonable, .fair and just and not Tulsiram Patel where the constitutionality of provisions of
.. arbitrary, fanciful and unjust. Regulation 9(b), therefore, . Article 311 particularly the second Proviso to clause (2)
· confers unbridled, uncanalised and arbitrary power ori the of the said article came up for consideration. This Court
F . authority to· terminate.. the·· services·. of a· permanent referred to the findings in Roshan Lal Tandon v. Union F
.. employee without recording any reasons and without of India wherein it was h_eld that though the origin of a
conforming to the . principles of natural justice. There is no• ·1 government service is contractual yet when once appointed
. ' ., ., ' ,• • . . ' .
guideline in the Regulations or in the Act, as to when or in · to his post or office, the government servant acquires a
which eases and cirC:umstan'C:es this power of termination . status and his rights and obligations. are no longer
· determined by the consent of both the parties, but by G 'I'
! '

G by giving notice or pay in lieu of notice cari be exercised;. · .
----- · It is now well. settled th.at the ·'audi alteram· parfem' rule . statute or statut_ory .rules which may be framed and altered
. which in essence, enforces ihe equalit{clause in Article unilaterally by the government. In other words, the legal
14 of the Constitution is applicable not only to quasijudicial position of a government servant is more .one of status than
.. orders but to administrative orders.affecting prejudicially of contract. The hall-mark of status is the attachment to a
· the party-in-Question unless the application of the rule has legal relationship of rights and duties imposed by the public H
H
282 SUPREME COURT REPORTS [2012] 13 S.C.R.

A law and not by mere agreement of the parties. It has been
observed that Article 14 does not govern or control Article
311. The Constituticm must be read as a whole. Article
311 (2) embodies the principles of natural justice including
audi alteram partem rule. Once the application of clause
B (2) is expressly excluded by the Constitution itself, there can
be no question of making applicable what has been so
excluded of seeking recourse to Article 14 of the
Constitution."
14: Thus, in our opinion it was not permissible for the
C government to take recourse to Para 7.06 (3) in the manner in
which it has done and in any case, the said rule can hardly be
sustained in law.
15. The order dated 3rd April, 2008 is even liable to be
quashed on another ground, that it is a non-speaking order also
0 suffering from the vice of non-application of mind. As already
discussed. the government has taken an enblock decision,
without recording any reason, not to renew the term of any of
the government counsel. That itself shows that there is no
application of mind. In the case of Kumari Shrilekha (supra),
E this Court expressed the opinion that it would be alien to the
Constitutional Scheme to accept the argument of exclusion of
Article 14 in contractual matters. The arbitrary act of the State
cannot be excluded from the ambit of judicial review merely on
the ground that it is a contractual matter. The expression 'At any
F time without assigning any cause', can be divided into two
portions, one "at any time", which merely means the termination
may be made even during the subsistence of the term of
appointment and second, "without assigning any cause" which
means without communicating any cause to the appointee
G whose appointment is terminated. However, "without assigning
any cause" is not to be equated with "without existence of any
cause".
16. Further, this Court in the case of Assistant
Commissioner, Commercial Tax Department, Works Contract
H at1d Leasing v. Shukla and Brothers [(2010) 4 SCC 785],
STATE OF U.P. & ORS. v. ASHOK KUMAR NIGAM 283
[SWATANTER KUMAR, J.]
impressed upon the need for recording of appropriate reasons A
in orders and held as under:-
"11. The Supreme Court in S.N. Mukherjee v. Union of
India while referring to the practice adopted and insistence
placed by the courts in United States, emphasised the
importance of recording of reasons for decisions by the B
administrative authorities and tribunals. It said
"administrative process will best be vindicated by clarity
in its exercise". To enable the courts to exercise the power
of review in consonance with settled principles, the
authorities are advised of the considerations underlining C
the action under review. This Court with approval stated:
(SCC p. 602, para 11)
'11 .... 'the orderly functioning of the process of
review requires that the grounds upon which the
administrative agency acted be clearly disclosed D
and adequately sustained'.'
12. In exercise of the power of judicial review, the concept
of reasoned orders/actions has been enforced equally by
the foreign courts as by the courts in India. The E
administrative authority and tribunals are obliged to give
reasons, absence whereof could render the order liable to
judicial chastisement. Thus, it will not be far from an
absolute principle of law that the courts should record
reasons for their conclusions to enable the appellate or
F
higher courts to exercise their jurisdiction appropriately and
in accordance with law. It is the reasoning alone, that can
enable a higher or an appellate court to appreciate the
controversy in issue in its correct perspective and to hold
whether the reasoning recorded by the court whose order
is impugned, is sustainable in law and whether it has G
adopted the correct legal approach. To subserve the
purpose of justice delivery system, therefore, it is essential
that the courts should record reasons for their conclusions,
whether disposing of the case at admission stage or after
regular hea~ing." H
284 SUPREME COURT REPORTS [2012] 13 S.C.R.

A 17. The order dated 3rd April, 2008, which we have
reproduced above, clearly shows non-application of mind and
non-recording of reasons, which leads only to one conclusion,
that the said order was an arbitrary exercise of power by the
State. We cannot find ainy fault with the reasoning of the High
B Court in that behalf. But we do find some merit in the contention
raised on behalf of the appellant State that the High Court should
not have directed appointments while regulating the age, as has
been done by the High Court in operative part of its judgment.
There is right of consideration, but none can claim right to
c appointment. Para 7.06 states that renewal beyond 60 years
shall depend upon continuous good work, sound integrity and
physical fitness of the counsel. These are the considerations
which have been weighed by the competent authority in the
State Government to examine whether renewal/extension
D beyond 60 years should be granted or not. That does not ipso
facto means that there is a right to appointment upto the age
of 60 years irrespectiv1:i of work, conduct and integrity of the
counsel. The rule provides due safeguards as it calls for the
report of the District Judge and the District Officer granting
renewal.
E
18. Thus, for the above-recorded reasons, while declining
to interfere in the judgment of the High Court, we direct that the
government shall consider cases of the respondents in these
petitions for renewal in accordance with the procedure
F prescribed and criteria laid down under Paras 7.06 to 7.08 of
the LR Manual. The consideration shall be completed as
expeditiously as possible and, in any case, not later than three
months from today.
19. Subject to the above observations, all the appeals are
G dismissed without any order as to costs.
R.P. Appeals dismissed.