STATE OF U.P. & ORS.versusRAKESH KUMAR KESHARI & ANR.

                         [2011] 5 S.C.R. 1060


·A                     STATE OF U.P. & ORS.
                                   v.
                RAKESH KUMAR KESHARI & ANR.
                  (Civil Appeal No. 3935 of 2011)

                            MAY 04, 2011
 B
             [J.M. PANCHAL AND H.L.GOKHALE, JJ.]

         CONSTITUTION OF IND/A, 1950:

 c      Articles 14 and 226-Writ Petition challenging order of
   state Government by which it returned the panel list of
   candidates for appointment of Assistant District Government
   Counsel (Criminal) to District Magistrate and directed him to
   re-advertise the posts-High Court settirg aside the order of
 0 the Government and directing the Government to make the
   appointments from the panel submitted by District
   Magistrate-Held: In the matter of engagement of A.D.G.C.
   (Criminal) a concept of public office does not come into play.
   The choice is that of the Government; and none can claim a
 E right to be appointed because it is a position of great trust and
   confidence-The directions given by the High Court in the
   impugned Judgment run contrary to the we/I-settled principles
   of law and, therefore, cannot be upheld - The Judgment of
   the High Court is set aside.

 F       JUDICIAL REVIEW·

       Appointment/renewal of Assistant District Government
   Counsel (Criminal) - Judicial review of-Principles
   explained-Recommendation by District Magistrate and the
 G District Judge to renew the term of two incumbents-
   Government asking the District Magistrate to advertise the
   posts-Posts advertised and two incumbents also applied-
   Two panel lists sent by the District Judge submitted by District
   Magistrate to Government-Government asking the District
 H                               1060
     STATE OF U.P. & ORS. v. RAKESH KUMAR                1061
                KESHARI & ANR.

Magistrate to re advertise the posts-In the writ petition. filed A
by the two incumbents High Court setting aside the order 'of
State Government and directing it to make the appointments
from the lists sent by District Magistrate-Held: In view of
provisions of para 7.06, 7.07 and 21.07 of the L.R. Manual
and in view of poor performance of the incumbents the B
decision of the State Government not to accept the·
recommendation of the District Magistrate cannot be said to·
be arbitrary~ The right of the State Government to engage,
disengage and renew the term of its counsel and Law Officers.
in keeping with the need to best safeguard the public intereSf c
and monetary considerations, suitability of the incumben(anCt
the interest of the Gover.nment as the client, will have tO /Jee
upheld-L.R. Manual-Para 7.06, · 7.07 and 21.07.

     Respondents nos. 1 and 2 were appointed as
Assistant District Government Counsel (Criminal) on b
contract basis. The District Judge, by communication
dated 31.07.2002, recommended to the District Magistrate
to extend their terms. Accordingly, the District Magistrate,
by communication dated 31.07.2002, recommended to
the State Government 'to extend the terms of the E
respondents. However, the posts were advertised and
the respondents also applied for the said posts.·
Applications from 29 candidates were received. The
District Judge sent to the District Magistrate two panels
of candidates, each containing 5 names stating that the F
work, conduct and legal knowledge of the remaining
candidates was satisfactory. Thereupon, the District
Magistrate addressed a communication dated 01-05-2004
to the Special Secretary, Government of U.P., Lucknow.
informing him that he agreed with the view of the District G
Judge that the work, conduct and legal knowledge of all
the candidates was satisfactory and he was forwarding
necessary data of 29 candid~tes. The Special S~~retary
and Upper Legal Remembrancer, by order dated i.9.2004
                                                                H
    1062   SUPREME COURT REPORTS              [2011] 5 S.C.R.


A directed the District Magistrate to submit another panel/
  list for appointment to the posts of ADGC (Criminal), but
  the District Magistrate declined to submit another list
  stating that a panel list had already been submitted. The
  Special Secretary and Upper Legal Remembrancer by
B letter dated 18.3.2005 returned the first panel list sent by
  the District Magistrate without assigning any reason and
  directed the District Magistrate to readvertise the posts
  of A.D.G.C. (Criminal). The District Magistrate re-
  advertised the said posts on 1.4.2005. The respondents
c filed a writ petition before the High Court seeking to
  quash the order dated 18.03.2005 as well as the
  advertisement dated 01.04.2005. It was further prayed that
  the appellants be directed to consider the
  recommendations of the District Magistrate made on
0 01.05.2004 with which a panel list was sent which
  included the names of the respondents for appointments
  to the posts of A.D.G.C. (Criminal); and that the appellants
  be directed not to interfere with the functioning of the
  respondents as A.D.G.C.
E      The High Court allowed the writ petition, set aside the
  order dated 7 .9.2004 holding that unless the panel
  submitted by the District Magistrate in consultation with
  the District Judge was rejected by the State Authorities
  on some disclosed grounds, it was not open to the State
F Government to ask the District Magistrate to constitute
  the revised panel, and directed the District Magistrate to
  furnish, after consultation with the District Judge, better
  particulars in respect of only those ten candidates whose
  names were incl1.1ded in the two panels; and the
G Government was directed to make appointments
  therefrom in accordance with law. Aggrieved, the State
  Government filed the appeal.

       Allowing the appeal, the Court
H
     STATE OF U.P. & ORS. v. RAKESH KUMAR·               1063
                KESHARI & ANR.

     HELD: 1.1. The limited scope of judicial review is (i)       A
Courts, while exercising the power of judicial review, do
not sit in appeal over the decisions of administrative
bodies (ii) A petition for judicial review would lie only on
certain well- defined grounds (iii) An order passed by an
administrative authority exercising discretion vested in it,      B
cannot be interfered in judicial review unless it is shown
that exercise of discretion itself was perverse or illegal (iv)
A mere wrong decision without anything more is not
enough to attract the power of judicial review (v) The
supervisory jurisdiction conferred on a Court is limited          c
to see that the Tribunal functions within the limits of its
authority and that its decisions do not occasion
miscarriage of justice and (vi) the Court shall not
ordinarily interfere with a policy decision of the State.
[para 13] [1075-A-D]
                                                                  D
     1.2. In view of the provisions of para 7.06, 7.07 and
21.07 of the L.R. Manual as well as in view of poor
performance of the respondents as A.D.G.C. - the
percentage of success in cases handled by respondent
no. 1 being nil and the percentage of respondent no. 2 E
being only 17 - the Court is of the opinion that the right
of the State Government to engage, disengage and renew
the terms of its Counsel and Law Officers in keeping with
the need to best safeguard the public interest and
monetary considerations, suitability of the incumbent and F
the interest of the Government as the client, will have to
be upheld. The decision of the State Government not to
accept the recommendation made by the District
Magistrate cannot be said to be arbitrary. [para 9, 11 and
15] [1071-C-H; 1071-A-H; 1072-C-H; 1073-A; 1077-A-C]       G

     State of U.P. & Anr. Vs. Johri Mal (2004) 4 SCC 714 -
relied on.

    Special Reference No. 1 of 1998, (1998) 7 SCC 739 .-,
held inapplicable.                                                H
    1064    SUPREME COURT REPORTS                [2011] 5 S.C.R.


A        2.1. In the matter of engagement of A.D.G.C.
    (Criminal) a concept of public office does not come into
    play. The choice is that of the Government; and none can
    claim a right to be appointed because it is a position of
    great trust and confidence. Article 14, however in a gfven
s   case, may be attracted to a limited extent if the State fails
    to discharge its public duty or acts in defiance, deviation
    and departure of the principles of law. [para 15] [1077-B-
    D]                                                       •
        2.2. It was not open to the respondents to file the writ
C   petition under Article 226 of the Constitution for
    compelling the appellants to utilize their services as
    Advocates irrespective of choice of the State. It was for
    the State to select its own Counsel. In view of the poor
    performance of the respondents in handling/conducting
D   criminal cases, this Court is of the opinion that the High
    Court committed a grave error in giving direction to the
    District Magistrate to forward better particulars of 10
    candidates whose names were included in the two
    panels prepared pursuant to advertisement dated
E   16.01.2004 and in setting aside order dated 7.9.2004 1 of
    the Principal Secretary to the Chief Minister, U.P. calling
    upon the District Magistrate to send another panel/list 'for
    appointment to the two posts of A.D.G.C. (Criminal). The
    directions given by the High Court in the impug11ed
F   Jud~ment run contrary to the well-settled principles, of
    law and, therefore, cannot be upheld. The Judgment of
    the Division Bench of High Court is set aside. [para''.17-
    19) [1078-E-H; 1079-A-B]
                         Case Law Reference:
G
         (2004) 4 sec 714           relied on           para 12
         (1998) 1 sec 739           held inapplicable para 12
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
H 3935 of 2011.
     STATE OF U.P. & ORS. v. RAKESH KUMAR                   1065
                KESHARI & ANR.

    From the Judgment & Order dated 11.7.2005 of the High            A
Court of Allahabadin Writ Petition No. 28444 of 2005.

    Rajeev K. Dubey, Kamlendra Mishra for the Appellants.

    Rameshwar Prasad Goyal for the Respondents.
                                                                     8
    The Judgment of the Court was delivered by

    J.M. PANCHAL, J. 1. Leave granted.

     2. This appeal by Special Leave is directed against
Judgment dated 11.07 .2005 rendered by the Division Bench            C
of High Court of Judicature at Allahabad in Civil Misc. Writ
Petition No. 28444 of 2005 by which order dated 07.09.2004
of the Principal Secretary to the Chief Minister, Uttar Pradesh
directing the District Magistrate to submit another panel/list for
appointment to the two posts of the Assistant District               D
Government Counsel (Criminal) in Ghazipur District of the State
of U.P. is set ·aside and District Magistrate, Ghazipur is
directed to consult the District Judge and thereafter to furnish
better particulars in respect of 10 persons whose names had
been included in the two panels dated 01-05-2004 with the            E
consultation of the District Judge, whereas the State
Government is directed not to consider revised panel unless
the panel submitted by the District Magistrate in consultation
with the District Judge is rejected on some disclosed grounds.
                                                                     F
    3. Backgrounds facts sans unnecessary details are as
under:-

     The respondents nos. 1 and 2 were appointed on contract
basis, to the vacant posts of Assistant District Government
Counsel (Criminal) ("A.D.G.C." for short), in Ghazipur District      G
of State of U .P. on 22.10.2001. As the terms of the appointment
of the respondents were up to 10.10.2002, the District Judge,
Ghazipur after being satisfied with the work and conduct of the
respondents had recommended to the District Magistrate,
                                                                     H
    1066    SUPREME COURT REPORTS                [2011} 5 S.C.R.


A Ghazipur to get extended their terms by communication dated
  31.07.2002. The District Magistrate, Ghazipur had
  recommended to the State Government to extend the terms of
  the respondents vide communication dated 31.07.2002. The
  Post of Assistant A.D.G.C. (Criminal) on which the respondents
s were working were advertised by the then District Magistrate,
  Ghazipur. In pursuance of the said advertisement, the
  respondents also applied for the post in question. Their
  applications were forwarded by the District Judge, Ghazipur to
  the then District Magistrate along with his Report. However, no
c action whatsoever was taken by the appellants either for
  renewing the terms of the respondents on the recommendation
  dated 31-07-2002 of the District Magistrate or for appointing
  them on the post of Assistant A.D.G.C. (Criminal) pursuant to
  the above mentioned advertisement. Again by advertisement
D dated 16.01.2004 the District Magistrate, Ghazipur had
  advertised the post of A.D.G.C. (Criminal) under the Judgeship
  of Ghazipur. The respondents had again applied for the post
  of A.D.G.C. (Criminal) along with other candidates. Pursuant
  to the advertisement dated 16-01-2004, applications from 29
  candidates were received. From the record it is evident that
E two letters dated 07-02-2004 and 01-03-2004 were addressed
  by the District Magistrate to the District Judge, Ghazipur for
  regular appointment of two A.D.G.C. (Criminal). In response to
  those two letters, the District Judge, Ghazipur by
  communication dated 07-04-2004 informed the District
F Magistrate that after obtaining opinion of the other Judicial
  Officers two panels of candidates, each containing 5 names
  were prepared. By a letter dated 19-04-2004, the District
  Magistrate had suggested to the District Judge to change/alter
  the two panels but District Judge had vide communication
G dated 28-04-2004, informed the District Magistrate that, it
  would not be in the fitness of things to change or alter the two
  panels which were prepared after taking much pains. However,
  by the said communication, the District Judge also mentioned
  that the work, conduct and legal knowledge of the remaining
H
     STATE OF U.P. & ORS. v. RAKESH KUMAR                  1067
        KESHARI & ANR. [J.M. PANCHAL, J.]

candidates were satisfactory. Thereupon, the District               A
Magistrate, Ghazipur addressed a communication dated 01-
05-2004 to the Special Secretary, Government of U.P.,
Lucknow informing him that the two posts of A.D.G.C.(Criminal)
were advertised and 29 applications were received regarding
which approval of the District Judge was obtained on 28-04-         B
2004. It was further stated in the said letter that the District
Judge, Ghazipur had mentioned that the work, conduct and
legal knowledge of all the candidates were satisfactory and as
he was agreeing with the view of the District Judge, Ghazipur
expressed in respect of 29 candidates, he was forwarding            c
necessary data of 29 candidates. By the letter dated 01-05-
2004 the District Magistrate had requested the Special
Secretary to take necessary action of making appointments to
the two posts of A.D.G.C. (Criminal). Instead of acting upon
recommendation made by the District Magistrate to make              D
appointments of suitable candidates whose names were
mentioned in the panel, the Special Secretary and Upper Legal
Remembrancer, Government of Uttar Pradesh, Lucknow, by.an
order dated 07-09-2004 directed the District Magistrate to
submit another panel/list for appointment to the posts of
A.D.G.C. (Criminal). The District Magistrate by his letter dated    E
14.02.2005 declined to submit another list stating that a panel
list had already been submitted by him. After the receipt of the
letter dated 14.02.2005 the Special Secretary and Upper Legal
Remembrancer returned the first panel list sent by the District
Magistrate on 01-05-2004 without assigning any reason and           F
directed the District Magistrate, Ghazipur to advertise the posts
of A.D.G.C. (Criminal), afresh for appointment vide letter dated
18.03.2005. According to the respondents there was no
occasion to advertise the posts of A.D.G.C. (Criminal) at all in
view of the recommendation made by the District Magistrate          G
on 01-05-2004.

    4. Pursuant to the direction contained in the letter dated
18.03.2005, the District Magistrate again re-advertised the
aforesaid posts vide advertisement dated 01.04.2005. The            H
    1068    SUPREME COURT REPORTS                 [2011] 5 S.C.R.


A respondents were of the view that action of the appellants in
  not considering the recommendations made by the District
  Magistrate on 01-05-2004, pursuant to the earlier
  advertisement dated 16.01.2004 and returning the same and
  further compelling the District Magistrate to re-advertise the
B posts was illegal, arbitrary and not in accordance with law.
  Therefore, they approached the High Court of Judicature at
  Allahabad by filing Civil Misc. Wirt Petition No. 28444 of 2005.
  In the writ petition, the prayer was to quash order date
  18.03.2005 issued by the Special Secretary and Upper Legal
c Remembrancer Government of Uttar Pradesh, Lucknow by
  which the District Magistrate was directed to re-advertise the
  posts as well as advertisment dated 01.04.2005 issued by the
  District Magistrate, Ghazipur to fill up two posts of A.D.G.C.
  (Criminal). Another prayer which was sought was to direct the
D appellants to consider the recommendations of the District
  Magistrate made on 01.05.2004 with which a panel list was
  sent which included the names of the respondents for
  appointments to the posts of A.D.G.C. (Criminal). The
  respondents had also prayed to direct the appellants not to
  interfere with their functioning as A.D.G.C. (Criminal) under the
E Judgeship of District Ghazipur.

        5. On service of notice the appellants had filed the reply
    and contested the claim made by the respondents.

F      6. The Division Bench which heard the Writ Petition had
  perused original records. On perusal of original records, the
  High Court found that two panels had been submitted for two
  posts and after going through the same, the state authorities
  had considered it proper to seek revised panel/proposal by
G order dated 07-09-2004 of the Principal Secretary to the Chief
  Minister. Having noticed this, the High Court took into
  consideration, the submission made by the learned counsel for
  the respondents that instead of sending the new names, it would
  be desirable that in respect of those ten candidates, whose
  names had been included in the aforesaid two-panels, better
H
     STATE OF U.P. & ORS. v. RAKESH KUMAR                   1069
        KESHARI & ANR. [J.M. PANCHAL, J.]
particulars were sent to the State Government and the State          A
Government was asked to decide the two names after
considering better particulars.

     The abovestated submission found favour with the High
Court and the High Court has set aside order dated 07-09-2004        8
holding that unless the panel submitted by the District
Magistrate in consultation with the District Judge is rejected by
the State Authorities on some disclosed grounds, it is not open
to the State to ask the District Magistrate to constitute the
revised panel. By the impugned Judgment, the High Court while
allowing the Writ Petition filed by the respondents has directed     C
the District Magistrate, Ghazipur after consultation with District
Judge to furnish better particulars in respect of only those ten
candidates whose names were included in the two panels
whereas the Government is directed to make appointments
therefrom in accordance with law, giving rise to the present         D
appeal.

     7. This Court has heard the learned Counsel for the parties
at length and considered the documents forming part of the
appeal.                                                              E

     8. The vital issue raised in the appeal relates to the right
of the State Government to engage, disengage and renew the
terms of its Counsel and Law Officers in keeping with the need
to best safeguard the public interest, monetary consideration,
suitability of the incumbent and the interest of the Government
                                                                     F
as the client. It may be mentioned that the entire gamut of this
exercise is governed by LR. Manual which is governing the
conduct of legal affairs of the State of Uttar Pradesh since last
several decades, in matters relating to the engagement,
disengagement and renewal of Government Counsel and Law              G
Officers for the State Government. The specific issue raised
in the appeal involves the question as to whether a legally
enforceable right to claim renewal of appointment to the post
of A.D.G.C. (Criminal) is available to the respondents and what
is the scope of judicial review in this regard. As observed          H
    1070     SUPREME COURT REPORTS                  [2011] 5 S.C.R.


A earlier the High Court has regarded the right to renewal of
  appointment as a legally enforceable one and therefore has
  chosen to interfere with the decision of the State Government
  seeking to fill the post by direct selection instead of renewing
  the terms of the respondents as was claimed by them in the
B Writ Petition.

       9. Before considering the question mentioned above, it
  would be relevant to reproduce some of the provisions of the
  LR.Manual relating to the appointment and renewal of the term
C of the Government Counsel. They are as under:-

        "7.06 Appointment and renewal

           (3)   The appointment of any legal practitioner as a
                 District Government Counsel is only professional
D                engagement terminable at will on either side and
                 is not appointment to a post under the Government.
                 Accordingly the Government reserves the power to
                 terminate the appointment of any District
                 Government Counsel at any time without assigning
                 any cause.
E
        7.07 Renewal of term

                 (1) At least three months before the expiry of the
                 term of a District Government Counsel, the District
F                Officer shall after consulting the District Judge and
                 considering his past record of work, conduct and
                 age, report to the Legal Remembrancer, together
                 with the statement of work done by him in Form No.
                 9 whether in his opinion the term of appointment of
                 such counsel should be renewed or not. A copy of
G
                 the opinion of the District Judge should also be sent
                 along with the recommendations of the District
                 Officer.

                 (2) Where recommendation for the extension of the
H
STATE OF U.P. & ORS. v. RAKESH KUMAR                      1071
   KESHARI & ANR. [J.M. PANCHAL, J.]

        term of a District Government Counsel is made for          A
        a specified period only, the reasons therefore shall
        also be stated by the District Officer.

        (3) While forwarding his recommendation for
        renewal of the term of a District Government
                                                                   8
        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        C
        conducting State cases, and specially his
        professional conduct.

 (ii)   The District Officer shall give his report about the
        suitability of the District Government Counsel from        D
        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         E
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                F
upon the District Officer to forward fresh recommendations
in the manner laid down in para 7.03.

(6) The procedure prescribed in this para shall be followed
on the expiry of every successive period of renewed
appointment of a District Government Counsel.                      G

21.07. The appointment of Public Prosecutor or Additional
Public Prosecutor shall be made for a period of three
years but the State Government may terminate such
appointment at any time without notice and without                 H
    1072    SUPREME COURT REPORTS                  [2011] 5 S.C.R.


~       assigning any reasons. The State Government may extend
        the period of appointment from time to time, and such
        extension of term shall not be treated as a new
        appointment."

        10. At this stage it would be relevant to notice certain facts
8
  emerging from the reply affidavit filed by the appellants before
  the High Court. The reply inter alia mentions that though the
  District Magistrate had recommended renewal of tenure of the
  respondents, he had furnished information regarding the work .
  done by the respondents in Form 4 perusal of which indicated
C that the respondent no.1 Mr. Rakesh Kumar Keshari had
  appeared in 25 cases in all and that in all those 25 cases the
  accused were acquitted, whereas the respondent no.2 Mr.
  Kripa Shankar Rai had appeared in 28 cases out of which in
  26 cases the accused were acquitted. The reply stated that the
D percentage of success in cases handled by Mr. Keshari was
  Nil whereas in the case of Mr. Rai the percentage was only 17
  and therefore when the matter of renewal of their tenure was
  considered by the Government, the Government had decided
  not to extend the terms of those Government Counsel whose
E success rate was very low. It was stated in the reply that on the
  basis of this decision the terms of the respondents were not
  extended and after expiry of their term they had ceased to work
  on their respective posts. It was further mentioned in the reply
  that on so many occasions the respondents had approached
F the Government for extension of their terms and many
  recommendations were forwarded to the Government but since
  the performance of the respondents was not found to be
  satisfactory, a decision was taken not to renew their terms and
  to issue advertisement for selection of better candidates.
G
         11. In view of the provisions quoted from the L:R. Manual
    above as well as in view of poor performance of the
    respondents as A.D.G.C. (Criminal) in Ghazipur District, this
    Court is of the opinion that the right of the State Government
    to engage, disengage and renew the terms of its Counsel and
H
     STATE OF U.P. & ORS. v. RAKESH KUMAR                  1073
        KESHARI & ANR. [J.M. PANCHAL, J.]

Law Officers in keeping with the need to best safeguard the         A
public interest and monetary considerations, suitability of the
incumbent and the interest of the Government a$ the client, will
have to be upheld.

     12. This question has been considered by a three Judge         B
Bench of this Court in State of UP. & Anr. Vs. Johri Mal (2004)
4 SCC 714, almost in similar circumstances. The respondent
therein was appointed as D.G.C. (Criminal) at Meerut on
07.01.1993. His term was renewed on 12.03.1996 and he was
again appointed in the same capacity on 17.09.1997 for one          C
year. However, subsequent thereto, despite his request his term
was not renewed and on 18.09.1998 he was relieved from the
charge of the said post. The vacancy was, thereafter, advertised.
The respondents had thereupon filed Writ Petition before the
Allahabad High Court challenging order dated 18.09.1998 on
the ground that as the District Magistrate and the District Judge   D
had found his conduct and work satisfactory and had
recommended for renewal of his term, the renewal ought to
have been granted as a matter of course. The High Court had
held that there was no good or cogent reason for rejecting the
recommendation of the District Judge. Therefore, the High           E
Court had directed the State Government to renew the
respondent's term as D.G.C. (Criminal). After referring to the
decision of nine-Judge Bench of this Court in Special
Reference No. 1 of 1998, Re. (1998) 7 SCC 739, wherein it is
ruled that the opinion of the Chief Justice of India which has      F
primacy in the matter of recommendations for appointment to
the Supreme Court, has to be formed by a collegium consisting
of the Chief Justice of India and the four senior most puisne
Judges of the Supreme Court, the High Court had further
opined that the District Judge should not make the.                 G
recommendation alone but should constitute the 5 Member
Collegium headed by himself for that purpose. Although the
State had pointed out to the High Court that the respondent's
case was not recommended by the District Judge or the District
Magistrate, the High Court had directed that the question of        H
    1074    SUPREME COURT REPORTS                   [2011] 5 S.C.R.

A renewal of the respondent's term be considered afresh by the
  Collegium. The State had then filed appeals before this Court.
  The State Government had contended before this Court that the
  High Court had proceeded on wrong premise that the
  recommendation for renewal of the respondent's term as
B D.G.C. (Criminal) had been made by the District Magistrate
  and since the appointment of Public Prosecutor was governed
  by the provisions of the Criminal Procedure Code and renewal
  thereof by the U.P. Legal Remembrancer's Manual, the High
  Court committed a manifest error in directing the Constitution
c of Collegium. It was also argued by the State before this Court
  that the professional engagement of a lawyer could not be
  equated with the appointment in a civil post as there exists a
  relationship of client and a lawyer between the State and the
  Public Prosecutor. On behalf of the respondent it was submitted
  that the High Court had felt the need to constitute a Collegium
0
  as the action on the part of the State in the appointment and/
  or renewal of the term of D.G.C.s was found to be arbitrary. It
  was also contended that the Public Prosecutors were looking
  after the prosecution work and therefore the office held by them
E was public in nature.

        13. Allowing the appeal filed by the State this Court has
   held that for a public law remedy enforceable under Article 226
  of the Constituion, the actions of the authority need to fall in the
   realm of a public law - be it a legislative act of the State, an
F executive act of the State or an instrumentality or a person or
  authority imbued with public law element. This Court has further
  held that the question is required to be determined in each case
  having regard to the nature of and extent of authority vested in
  the State. After holding that the power of judicial review is not
G intended to assume a supervisory role or don the robes of the
  omnipresent, this Court has, in terms, ruled that the power of
  judicial review is not intended either to·review governance under
  the rule of law nor do the Courts step into the areas exclusively
  reserved by the Constitution to the other organs of the State
H and has further cautioned that the Court shall not ordinarily
     STATE OF U.P. & ORS. v. RAKESH KUMAR                    1075
        KESHARI & ANR. [J.M. PANCHAL, J.]

interfere with a policy decision of the State. The Court also held    A
that the decisions and actions which do not have adjudicative
disposition would not strictly fall for consideration before a
judicial review court. According to this Court the limited scope
of judicial review is (i) Courts, while exercising the power of
judicial review, do not sit in an appeal over the decisions of        B
administrative bodies (ii) A petition for judicial review would lie
only on certain well- defined grounds (iii) An order passed by
an administrative authority exercising discretion vested in it,
cannot be interfered in judicial review unless it is shown that
exercise of discretion itself was perverse or illegal (iv) A mere     C
wrong decision without anything more is not enough to attract
the power of judicial review (v) The supervisory jurisdiction
conferred on a Court is limited to seeing that the Tribunal
functions within the limits of its authority and that its decisions
 do not occasion miscarriage of justice and (vi) the Court shall
 not ordinarily interfere with a policy decision of the State.        D

     14. After referring to the L.R. Manual this Court has
specifically held that appointment of a Public Prosecutor or a
District Counsel would be professional in nature. This Court in
the said case, noticed the concession made on behalf of the           E
respondent therein that the holder of the office of the Public
Prosecutor does not hold a civil post and thereafter has held
that by holding a post of District Counsel or the Public
Prosecutor no status is conferred on the incumbent. This Court
in the said case has further ruled that so long as in appointing      F
a Counsel, the procedure laid down in LR. Manual is followed
and a reasonable or fair procedure is adopted, the Court would
normally not interfere with the decision. What is emphasized
by this Court is that the nature of the office held by a lawyer
vis-a-vis, the State being in the nature of professional              G
engagement, the Courts are normally chary to overturn any
decision unless an exceptional case is made out. According
to this Court 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 and the extension of tenure of             H
    1076     SUPREME COURT REPORTS                    (2011] 5 S.C.R.


A   Public Prosecutor or the District Counsel should not be
    compared with the right of renewal under a licence or permit
    granted under a statute. What is laid down as firm proposition
    of !aw is that an incumbent has no legally enforceable right as
    such and the action of the State in not renewing the tenure can
8   be subjected to judicial scrutiny inter alia only on the ground that
    the same was arbitrary. It is also held that the Court normally
    would not delve into the records with a view to ascertain as to
    what impelled the State not to renew the tenure of the Public
    Prosecutor or a District Counsel and the Jurisdiction of the
C   Courts in a case of this nature would be to invoke the doctrine
    of "Wednesburry unreasonableness". This Court further held that
    L.R. Manual contains executive instructions and is not law within
    the meaning of Article 13. After emphasizing that a Public
    Prosecutor is not only required to show his professional
    competence but is also required to discharge certain
D   administrative functions, it is held that the respondent therein
    had no effective control over A.D.G.C.s for taking steps and
    therefore action on the part of the State was not wholly without
    jurisdiction requiring interference by the High Court in exercise
    of its power of judicial review while setting aside the direction
E   given by the High Court to constitute the five member Collegium
    headed by the District Judge to make recommendation for
    appointment to the post of D.G.C. (Criminal), this Court had to
    take pains to explain to all concerned that the appointment of
    District Government Counsel cannot be equated with the
F   appointments of the High Court and Supreme Court Judges
    and a distinction must be made between professional
    engagement and a holder of high public office. This Court has
    explained that various doctrines and the provisions of the
    Constitution which impelled the Supreme Court in Special
G   Reference Case, (1998) 7 SCC 739 to give meaning of
    'Consultation' as 'Concurrence' and wherein the Chief Justice
    of India will have a primacy, cannot be held to be applicable in
    the matter of consultation between the District Magistrate and
    the District Judge for the purpose of preparation of a panel of
H   the District Government Counsel.
     STATE OF U.P. & ORS. v. RAKESH KUMAR                     1077
        KESHARI & ANR. [J.M. PANCHAL, J.)

     15. Applying the principles of law laid down by this Court        A
in the above quoted decision, this Court finds that the decision
of the State Government not to accept· the .recommendation
made by the District Magistrate cannot be said to be arbitrary.
There is no manner of doubt that the A.D.G.C. (Criminal) are
not only officers of the Court but also the representatives of the     B
State. They represent th~ interest of the general public before
a Court of law. The holders of the post have a· public duty to
perform. However, in the matter of engagement of A.D.G.C.
(Criminal) a concept of public office does not come into play.
The choice is that of the Government and none can claim a right        c
to be appointed because it is a position of great trust and
confidence. Article 14, however in a given case, may be
attracted to a limited extent if the ~tate fails to discharge its
public duty or acts in defiance, deviation and departure of the
principles of law.                                                     D

      16. This position is again made clear in an unreported
decisi6n of this Court dated November 11, 2010 rendered in
Civil Appea·I No. 3785 of 2003. In the said case the State of
U.P. by its. order dated 03.06.2002 had rejected the request
of the respondent Satyavrat Singh for renewal of the extension         E
of his term as District Government Counsel (Criminal). The
respondent had challenged the .same in the Writ Petition. The
Allahabad High Court had quashed the order 03.06.2,002
refusing renewal of the term of the respondent as District
Government Counsel (Criminal) and had• directed the State              F
Government to renew the term of the respondent as Governme'nt
Counsel. While allowing the appeal filed by the State
Government this Court has held as under:-

     "lt is difficult to discern as to how the High Court has upheld   G
     the unstatable proposition advanced by the respondent for
     extension of his term as Government Counsel. We wish
    ·to say no more in this matter since the subject matter that
     arises for our consideration is. squarely
                                             '  . . covered by the
                                                  '


                                                                       H
    1078    SUPREME COURT REPORTS                  [2011] 5 S.C.R.


A       decision of this Court in State of U.P. and another Vs. Johri
        Mal 2004 (4) SCC 714. This Court took the view that in
        the matter of engagement of a District Government
        Counsel, a concept of public office does not come into play.
        The choice of a counsel is for the Government and none
B       can claim a right to be a counsel. There is no right for
        appointment of a Government Counsel.

        The High Court has committed a grave error in renewing
        the appointment of the respondent as Government
        Counsel.
c
        Needless to state that the High Court in exercise of its
        jurisdiction under Article 226 of the Constitution of India
        cannot compel the State to utilize the services of an
        advocate irrespective of its choice. It is for the State to
D       select its own counsel.

        The impugned order of the High Court is set aside. The
        appeal is accordingly, allowed." .

        17. Thus it was not open to the respondents to file Writ
E Petition under Article 226 of the Constitution for compelling the
  appellants to utilize their services as Advocates irrespective of
  choice of the State. It was for the State to select its own
  Counsel. In view of the poor performance of the respondents
  in handling/conducting criminal cases, this Court is of the
F opinion that the High Court committed a grave error in giving
  direction to the District Magistrate to forward better particulars
  of 10 candidates whose names were included in the two panels
  prepared pursuant to advertisement dated 16.01.2004 and in
  setting aside order dated 07-09-2004 of the Principal Secretary
G to the Chief Minister, U.P. calling upon the District Magistrate
  to send another panel/list for appointment to the two posts of
  A.D.G.C. (Criminal).

        18. The directions given by the High Court in the impugned
H
       STAIE OF U.P. & ORS. v. RAKESH KUMAR              1079
         KESHARI & ANR. [J.M. PANCHAL, J.]

Judgment run contrary to the well-settled principles of law and   A
therefore cannot be upheld. Thus, the appeal deserves to be
allowed.

     19. For the foregoing reasons the appeal succeeds. The
Judgment dated 11.07.2005 rendered. by the Division Bench
                                                                  8
of High Court of Allahabad in Civil Misc. Writ Petition No.
28444 of 2005 is set aside. The appeal accordingly stands
disposed of. In peculiar facts of the case there.--shall be no
orders as to cost.

R.P.                                          Appeal allowed.     C