Government Pleader; E.R. Vinod Vs. State [Kerala High Court, 27-07-2016]

Contents

Criminal Procedure Code, 1973 – Ss. 24 (4) & 24 (5) – Government Law officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 (Kerala) – Rule 8 – Whether an Addl. District Government Pleader/Addl. Public Prosecutor appointed for a term of three years is entitled to have renewal of the term as a matter of course – Whether it is within the prerogative of the Government to identify the counsel to represent the Government in the litigations, both Civil and Criminal – where the Government is a party – shall it be subject to the upper edge, if any, of the concerned District & Sessions Judge in identifying/selecting the person – To what extent, consultation is necessary with the District & Sessions Judge for preparing the panel of candidates by the District Collector, to be forwarded to the Government for appointment – Although renewal is ordered after consultation with the District & Sessions Judge, if it is not in full compliance with the relevant rules/provisions of the Cr.P.C., in preparing the panel, will it be a bar for the Government to have it reviewed or will the Government be bound by applying the principles of estoppel – Will the Government be justified in attempting to remove the existing Addl. Government Pleaders/Addl.Public Prosecutors (whether the term is expired or still to expire) en-bloc, as proposed in Annexure-A7 and if so, will it run contrary to the law declared by the Supreme Court on the point?


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.

O.P.(KAT)No.90 OF 2016

Dated this the 27 th July, 2016

(AGAINST THE ORDER IN OA 1324/2016 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 29-06-2016)

PETITIONER(S)/APPLICANT

E.R. VINOD, ADDITIONAL GOVERNMENT PLEADER & PUBLIC PROSECUTOR, ASSISTANT SESSIONS COURT – SUB COURT, KANNUR-670001

BY ADVS.SRI.KALEESWARAM RAJ KUM.A.ARUNA

RESPONDENTS/RESPONDENTS

1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF LAW, SECRETARIAT, THIRUVANANTHAPURAM-695001.

2. DISTRICT COLLECTOR KANNUR-670001.

3. THE DISTRICT AND SESSIONS JUDGE THALASSERY, KANNUR-679532.

4. THE SUB JUDGE SUB COURT, KANNUR-670001.

BY ADVOCATE GENERAL MR. C.P.SUDHAKARA PRASAD

JUDGMENT

P.R. Ramachandra Menon, J.

Whether an Addl. District Government Pleader/Addl. Public Prosecutor appointed for a term of three years is entitled to have renewal of the term as a matter of course, once the term is expired, without following all the procedures right from the beginning, as envisaged under

# Rule 8 of the Kerala Government Law officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978

(‘KGLO Rules‘ in short), read in conformity with the mandate of Section 24(4) and 24(5) of the Cr.P.C.? Whether it is within the prerogative of the Government to identify the counsel to represent the Government in the litigations, both Civil and Criminal – where the Government is a party or shall it be subject to the upper edge, if any, of the concerned District & Sessions Judge in identifying/selecting the person?. To what extent, consultation is necessary with the District & Sessions Judge for preparing the panel of candidates by the District Collector, to be forwarded to the Government for appointment?. Although renewal is ordered after consultation with the District & Sessions Judge, if it is not in full compliance with the relevant rules/provisions of the Cr.P.C., in preparing the panel, will it be a bar for the Government to have it reviewed or will the Government be bound by applying the principles of estoppel? Will the Government be justified in attempting to remove the existing Addl. Government Pleaders/Addl.Public Prosecutors (whether the term is expired or still to expire) en-bloc, as proposed in Annexure-A7 and if so, will it run contrary to the law declared by the Supreme Court on the point? These are the main questions to be answered by this Court in this Original Petition.

2. The petitioner, a practising lawyer having more than 13 years of standing, was an aspirant to be appointed as an Addl. District Government Pleader/Addl. Public Prosecutor in the vacancy created by the Government as per Ext.P4 G.O.[G.O.(MS)No.40/2013/Law dated 01.03.2013] to cater to the requirements of the new Sub Court & Assistant Sessions Court at Kannur. Pursuant to the said G.O., the District Collector took further steps calling for a panel of qualified advocates with all the relevant particulars from the Bar Associations of Thalassery, Kannur and Payyannur. On receipt of the particulars as above, a consultation was effected with the District & Sessions Judge concerned and thereafter, a penal of ‘six’ candidates was forwarded to the Government as per Ext.P6 proceedings sent by the District Collector, Kannur. After considering the same, the Government appointed the petitioner as the Addl.District Government Pleader/Addl.Public Prosecutor in the newly established Sub Court and Assistant Sessions Court at Kannur as per Annexure-A1 G.O. Dated 11.04.2013, for a period of ‘three years’ from the date of assumption of charge or attainment of sixty years of age, whichever was earlier.

3. The petitioner assumed charge and while continuing as above, the term of the engagement was to expire on 10.04.2016. In the said circumstance, the petitioner submitted a request dated 29.01.2016 before the District Collector, pointing out that he was desirous of having the tenure extended, upon which Annexure-A3 communication was issued to the District Judge by the District Collector on 05.02.2016, seeking to furnish his remarks. Pursuant to this, the District Judge called for a report from the concerned court, i.e., Sub Court and Assistant Sessions Court, Kannur; in response to which, Annexure-A4 report was submitted on 29.02.2016, pointing out that there was nothing objectionable as to the course, conduct and competence of the petitioner. Thereafter, the remarks were furnished accordingly, by the District Judge, Thalassery vide letter dated 01.03.2016 and on receipt of the same, the District Collector, on the very same date, sent the recommendation to the Law Secretary. It was accordingly, that the Government issued Annexure-A6 G.O.(G.O. (MS)No.66/16/Law dated 08.04.2016) extending the term of the petitioner by a further period of three years w.e.f 12.04.2016. It is stated that the petitioner is continuing, based on the renewal as above.

4. While so, the petitioner came across Annexure-A7 communication dated 16.06.2016 issued by the Government/Law Secretary, addressed to all District Collectors of the State, referring to the earlier letter dated 30.05.2016 as to the proposed steps for preparation of a fresh panel of advocates to be appointed as District Government Pleaders in consultation with the District Judges concerned, duly complying with the procedure laid down in Rule 8(2) of the KGLO Rules, 1978 and requesting to expedite steps in the matter for submitting the panel. Apprehending termination of engagement of the petitioner, despite the renewal ordered by the Government as per Annexure-A6, just two months ago, he approached the Kerala Administrative Tribunal by filing the O.A., seeking to set aside Annexure-A7 and to declare that the petitioner/applicant was entitled to continue on the strength of Annexure -A6, for a further period of ‘three’ years from 12.04.2016. The claim was resisted from the part of the Government on various grounds, pointing out the merits and also that the O.A. itself was premature. After a detailed discussion, as to the facts, figures, relevant provisions of law and precedents, interference was declined and the O.A. was dismissed as per Ext.P1 order dated 29.06.2016, which made the petitioner to approach this Court by way of this Original Petition, challenging Ext.P1.

5. Heard Mr. Kaleeswaram Raj, the learned counsel appearing for the petitioner and Shri C.P.Sudhakara Prasad, the learned Advocate General appearing for the State/respondents, at length.

6. The petitioner contends that, going by the contents of Annexure A7, two steps are imminent to take place; firstly, termination of all the existing Government Pleaders ‘en-bloc’ and secondly, preparation of a new panel, absolutely for no reason, but for sustaining the political will of the Government, i.e., to appoint persons of their choice, despite any instance of insinuation or misconduct on the part of the existing District Government Pleaders/Public Prosecutors, Addl. Government Pleaders/Addl. Public Prosecutors. It is stated that the challenge is mainly on two grounds, firstly that appointment of a Public Prosecutor/Addl. Public Prosecutor has necessarily to be in conformity with the mandate of Sections 24(4) or 24(5) of the Cr.P.C., which stands satisfied in the case of the petitioner and as such his engagement is not liable to be terminated. The second contention is that, Annexure-A7 proposes to pursue further steps for preparing a new panel in terms of Rule 8(2)(c) of KGLO Rules, which cannot be sustained, as the said rules have been virtually declared as ultra vires, being contrary to the mandate of Section 24(4) and 24(5) of the Cr.P.C., by a Division Bench of this Court as per the decision reported in

# Omanakuttan Nair vs. State of Kerala, 2003 (1) KLT 226

7. The learned Counsel submitted that the validity of Rule 8(2) (c) of the KGLO Rules in the light of the above verdict of this Court was omitted to be considered by the Tribunal while dismissing the O.A.; holding that the relationship between the Government and a Government Pleader/Public Prosecutor was merely that of a private litigant with his lawyer and it is for the client to choose the lawyer to represent him. The learned Counsel points out that the idea and understanding is thoroughly wrong and misconceived, it being contrary to the law declared by the Apex Court in

# Kumari Shrilekha Vidyarthi and others vs. State of U.P. and others, AIR 1991 SC 537

clearly holding that the relationship is something more, where an element of public function is also involved and that there cannot be any en- bloc termination, upon the change in political party running the Government. Reliance is also sought to be placed on the verdict passed by the Apex Court in

# Harpal Singh Chauhan and others vs. State of U.P., AIR 1993 SC 2436

(paragraphs 11 and 14) and

# State of Punjab and another vs.Brijeshwar Singh Chahal and another, (2016) 6 SCC 1

It is stated that the Government Pleader /Public Prosecutor is discharging a public function and as such, this should be reflected throughout the process of selection, appointment, renewal, etc., which essentially differs from an individual engaging his lawyer. The Tribunal has gone wrong in applying the lawyer-client relationship, to be the basis for non-suiting the petitioner. It is also pointed out that the reliance sought to be placed on Rule 17 of the KGLO Rules conferring power upon the Government to terminate the engagement even without any reason is not correct or sustainable. The learned Counsel adds that the Tribunal, though has adverted to some observations made by the Apex Court in

# Kumari Shrilekha Vidyarthi and others vs. State of U.P. And others, AIR 1991 SC 537

to justify the findings and reasoning, the said observations of the Supreme Court are not the dictum and that the dictum is something else, which stands in favour of the petitioner.

8. The learned Counsel also points out that the entire process of preparation of ‘panel’ as such, is not necessary or contemplated in so far as the petitioner is concerned as it was only a case of ‘renewal’ and that the proven credentials are already forming part of the records; more so when ‘no objection’ was raised from the concerned Court to which the petitioner was attached as Addl. Government Pleader/Addl. Public Prosecutor or from the part of the District and Sessions Judge or by the District Collector, who forwarded the recommendation to the Government, leading to renewal of the term as per Annexure-A6. As such, it is not a fresh selection, but an extension of the term originally granted for which, power, of course is vested with the Government under Rule 9 of the KGLO Rules. The learned counsel further submitted that the reliance placed by the Tribunal upon the verdict reported in

# Mohammed Ashraff vs. State of Kerala, 1991 (2) KLT 818 : 1991 KHC 513

is not applicable to the case in hand, by virtue of difference in the facts and circumstances. Same is the position, with regard to the factual situation in the verdicts of the Supreme Court in

# State of UP. and others vs. U.P. State Law Officers Association and others,  AIR 1994 SC 1654

and

# State of U.P vs. U.P. Govt. Counsel (Crl.) Welfare Association, AIR 1995 SC 575

9. In so far as there is no reference in Annexure-A7 to the mandatory requirements of ‘consultation’ with the Sessions Judge as envisaged under Section 24(4) and 24(5) of the Code of Criminal Procedure, but for confining it to Rule 8(2) of the KGLO Rules, it is stated as bad in all respects. Section 24(4) and 24(5) of the Cr.P.C. envisages ‘pre-decisional consultation’ with the Sessions Judge. Rule 8 of the KGLO Rules refers only to a ‘post-decisional consultation’, which is not enough and hence the provision has been declared as ultra vires in

# Omanakuttan Nair vs. State of Kerala, 2003 (1) KLT 226

Having renewed the tenure as per Annexure-A6 (having taken the decision with full application of mind), the Government cannot be heard to say that it is not bound by the same, thus bringing the rule of estoppel as well, submitted the learned Counsel, also seeking to draw support from the ruling of the Apex Court in

# Surya Narain Yadav and others vs. Bihar State Electricity Board and others, AIR 1985 SC 941

10. The learned Advocate General appearing for the respondents submitted that the challenge raised by the petitioner against Annexure A7 is neither maintainable in law nor on facts; besides the fact that it is too ‘premature’ and no cause of action has actually arisen for the petitioner, as on date. It is further pointed out that the post of Addl. District Government Pleader/Addl.Public Prosecutor is not a civil post under the Government coming within the purview of Kerala Public Service Act, unlike the post of ‘Assistant Public Prosecutor’ and this being the position, the O.A. preferred before the Tribunal itself was not maintainable by virtue of Section 15 of the Administrative Tribunal’s Act.

11. It is pointed out by the learned Advocate General that, in so far as the selection and appointment of Government Pleader/Public Prosecutor is concerned, the ‘trust and confidence‘ of the Government is supreme and there is no vested right for anybody to get appointed or to continue to hold the office. The process of ‘consultation’ with the District and Sessions Judge is to weed out the undesirable elements. Who is the better person to be selected and appointed among the eligible hands, is a matter of choice of the Government and not of anybody else. The verdicts passed by the Apex Court in

# Kumari Shrilekha Vidyarthi and others vs. State of U.P. and others, AIR 1991 SC 537

and the subsequent Bench in Harpal Singh Chauhan‘s case (cited supra) have been considered and the legal position has been made explicitly clear as per the subsequent verdict of a ‘Three Member Bench’ of the Supreme Court in

# State of U.P. and another vs. Johri Mal, (2004) 4 SCC 714

which has been followed by various Division Benches of this Court upholding the stand taken by the Government and repelling the contrary stand taken by the litigants as per the judgment in

# Francis Jude Netto vs. State of Kerala, 2007 (4) KLT 210

and W.A.No.458 of 2007. The learned Advocate General also points out that in the course of ‘consultation’, it is quite open for the concerned District and Sessions Judge to suggest the names of any eligible hand and if the Government reposes ‘trust and confidence’ in the said person, on enquiry, he could be considered. But merely for the reason that such a person has been suggested by the learned District and Sessions Judge, he cannot have any vested right to get selected and appointed. It is brought to the notice of this Court that the verdict passed by the Division Bench in Omanakuttan‘s case (cited supra) was sought to be challenged from the part of the State Government before the Apex Court by filing SLP.Nos. 22777 to 22774 of 2002, which however came to be dismissed on 22.04.2012. The position in the said case was considered by the subsequent Division Bench and after making a reference to the law declared by the Apex Court in

# State of U.P. and another vs. Johri Mal, (2004) 4 SCC 714

the position was answered in favour of the Government as per the verdict reported in 2007 (4) KLT 210 (cited supra). Even though an interim stay was granted by the Apex Court in respect of the verdict passed in Omanakuttan‘s case, the law already declared had to be followed by virtue of the ruling of the Apex Court in

# Shree Chamundi Mopeds Ltd. vs. Church of South India Trust Association CSI Cinod Secretariat, Madras, (1992) 3 SCC 1

and as held by another Division Bench of this Court in

# Abdu Rahiman vs. District Collector, Malappuram, 2009(4) KLT 485

It was accordingly, that the matter was considered, leading to the decision in

# Francis Jude Netto vs. State of Kerala, 2007 (4) KLT 210

12. The learned Advocate General submitted that the mere eligibility of persons to be considered for appointment as Addl. District Government Pleader/Addl. Public Prosecutor or that such persons was selected and appointed at a given point of time, by itself is not a relevant criterion to get appointed or re-appointed as a matter of course. It need not be a case of loss of confidence as well; and the person to be identified shall be with reference to the honesty, knowledge, competence, credibility and above all, upon whom more trust and confidence can be reposed by the Government for conducting the cases of the Government in the best interest of the Government. This being the position, it is quite open for the Government to have the engagement terminated at any time, without assigning any reason as stipulated in Rule 17 of the KGLO Rules and the relationship is as between any other client and his lawyer, of course with an element of public duty which is sufficiently protected by virtue of the safeguard provided in the Rules, i.e., ‘consultation’ to be made with the District and Sessions Judge.

13. Mr. Kaleeswaram Raj, the learned Counsel for the petitioner submitted in reply, that the verdict passed by the ‘Three Member Bench’ of the Apex Court in

# State of U.P. and another vs. Johri Mal, (2004) 4 SCC 714

was on a totally different factual context. It is stated that the position of law laid down by a ‘Two member Bench’ of the Apex Court in

# Kumari Shrilekha Vidyarthi and others vs. State of U.P. and others, AIR 1991 SC 537

has not been altered by the subsequent ‘Three Member Bench’ in

# State of U.P. and another vs. Johri Mal, (2004) 4 SCC 714

and both the cases were decided in different angles. The law declared by the Supreme Court in

# Kumari Shrilekha Vidyarthi and others vs. State of U.P. And others, AIR 1991 SC 537

has not been overruled by the Three Member Bench in

# State of U.P. And another vs. Johri Mal, (2004) 4 SCC 714

though the law declared in the former case has not been reiterated in so many words.

14. Similarly, the verdict rendered by the Supreme Court in

# Harpal Singh Chauhan and others vs. State of U.P., AIR 1993 SC 2436

has not been overruled in the ‘Three Member Bench’ decision in

# State of U.P. and another vs. Johri Mal, (2004)4 SCC 714

Further, there is an observation by the Three Member Bench to the effect that the Bench did not agree with the amendment brought about to get over the dictum in

# Kumari Shrilekha Vidyarthi and others vs. State of U.P. and others, AIR 1991 SC 537

15. Before proceeding to analyse the law declared by the Apex Court and this Court, as referred to above, it is necessary to consider the projected cause of action as given in Annexure-A7, which reads as follows:

“Attention is invited to the reference cited. It was requested to furnish a fresh panel of Advocates to be appointed as District Government Pleaders in consultation with the District Judges concerned, duly complying the procedure laid down in rule 8(2) of KGLO Rules, 1978, but the same has not been furnished yet. Hence you are requested to expedite the matter and submit the panel at the earliest.”

Obviously, Annexure A7 only refers to preparation of a fresh panel for appointment of Government Pleaders in various districts in Kerala, in consultation with the District and Sessions Judges and duly complying the procedure laid down in Rule 8(2) of the KGLO Rules. If it is strictly confined to appointment of Government Pleaders/Addl. Government Pleaders (not connected with appointment of Public Prosecutors/Addl.Public Prosecutors) Sec.24(4) and (5) of the Cr.P.C. will not get attracted. In fact, the same is governed by Rule 8(2) of the KGLO Rules as it stands. The learned counsel for the petitioner fairly concedes that, there is no ‘master and servant’ relationship between the Government Pleader and Public Prosecutor or the Addl. Government Pleader and Addl. Public Prosecutor. According to the learned counsel, it stands on a higher plane than mere ‘client- lawyer relationship’, by virtue of the public duty cast upon the Government Pleader/Public Prosecutor to be discharged.

16. In so far as the jurisdiction of the Tribunal to deal with the matter in terms of the Administrative Tribunal’s Act is concerned, it has to be with reference to the mandate of Section 15, which reads as follows:

# 15. Jurisdiction, powers and authority of State Administrative Tribunals

(1) Save as otherwise expressly provided, in this Act, the Administrative Tribunal for a State -shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court a[xx]) in relation to-

(a) recruitment, and matters concerning recruitment, to any civil service of the State or to any civil post under the State;

(b) all service matters concerning a person [not being a person referred to in clause (c) of this sub-section or a member, person or civilian. referred to in clause (b) of sub-section (1) of section 14] appointed to any civil service of the State or any civil post under the State and pertaining to the service of such person in connection with the affairs of the State or of any local or other authority under the control of the State Government or of any corporation b[or society] owned or controlled by the State Government;

(c) all service matters pertaining to service in connection with the affairs of the State concerning a person appointed to any service or post referred to in clause (b), being a person whose services have been placed by any such local or other authority or corporation b[or society] or other body as is controlled or owned by the State Government, at the disposal of the State Government for such appointment.

(2) The State Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section (3) to local or other authorities and, corporations b[or societies] controlled or owned by the State Government ;Provided that if the State Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates may be so specified under this sub-section in respect of different classes of, or different categories under any class of, local or other authorities or corporations b[or societies].

(3) Save as otherwise expressly provided in this Act, the Administrative Tribunal for a State shall also exercise, on and from the date with effect from which the provisions of this subsection apply to any local or other authority or corporation b [or society], all the jurisdiction, powers and authority exercisable immediately before that date by all courts (except the Supreme Court a[xx]) in relation to –

(a) recruitment, and matters concerning recruitment to any service or post in connection with the affairs of such local or other authority or corporation b[or society]; and

(b) all service matters concerning a person [other than a person referred to in clause (b) of sub-section (1) of this section or a member, person or civilian referred to in clause (b) of subsection (1) of section 14] appointed to any service or post in connection with the affairs of such local or other authority or corporation b[or society] and pertaining to the service of such person in connection with such affairs.

(4) For the removal of doubts, it is hereby declared that the jurisdiction, powers and authority of the Administrative Tribunal for a State shall not extend to, or be exercisable in relation to, any matter in relation to which the jurisdiction, powers and authority of the Central Administrative Tribunal extends or is exercisable.

17. The circumstances, under which a post can be considered as a ‘civil post’ (with reference to the appointment of an Asst. Public Prosecutor under the Government) have been considered and explained by the Apex court in the decision reported in

# Samarendra Das v. State of W.B. and others, AIR 2004 SC 2924

holding that the post of ‘Assistant Public Prosecutor’ is a civil post under the State in terms of S. 15 of the Administrative Tribunals Act, 1985. The test/circumstances highlighted by the Apex Court in the said decision are conspicuously absent in so far as the selection and appointment of District Government Pleader/Public Prosecutor is concerned and it cannot be held as a ‘civil post’ under the Government, involving ‘master and servant’ relationship. This being the position, this Court finds considerable force in the submission made by the learned Advocate General, that the O.A. itself was not maintainable before the Tribunal and the grievance, if any, could have been considered only by this Court, invoking the power and jurisdiction under Article 226 of the Constitution of India.

18. Appointment of Law Officers in the State are governed by KGLO Rules. Rules 4 to 6 deal with appointment of such officers in the High Court of Kerala, whereas Rules 8 to 10 deal with appointment of such officers in the District Court/Addl.District Court/Subordinate Court. Rule 8 deals with the method of appointment of Government Law Officers in the District Court, Additional District Court and Sub Court centres, whereas Rule 17 deals with Termination of Appointment. Rules 8 and 17 are extracted below for convenience of reference:

# 8. Method of appointment of Government Law Officers at District Court, Additional District Court and Sub Court Centres

(1) Government Law Officer at a District Court Centre, Additional District Court Centre or Sub Court Centre shall be appointed by the Government from a panel of names of Advocates furnished by the District Collector concerned. Provided that the Government shall try to give adequate representation to members of Scheduled Caste/Scheduled Tribe Communities in the matter of appointment of Government Law Officers.

(2) For preparing the panel, the District Collector shall follow the following procedure, namely-

(a) A list of advocates from the roll of advocates of the Bar Council of Kerala having at least seven years of practice in the Bar and who having regard to their qualification, experience, integrity, reliability, reputation and character and antecedents, are , in the opinion of the District Collector, fit to be appointed as a Government Law Officer shall be prepared and sent to the concerned District and Sessions Judge for consultation. The District and Sessions Judge shall return the list with his remarks within ten clear days from the date of receipt of the same by him. Provided that in preparing the list it shall not be necessary to advertise the vacancies or invite applications for the appointment.

(b) After the expiry of the time limit mentioned in Clause (a) for return of the list from the District and Sessions Judge the District Collector shall prepare the panel of advocates based on the list forwarded by him to the District and Sessions Judge under the said clause.

(c) In preparing the panel, the District Collector shall not include the name of any Advocate whose name was not included in the list prepared by him under clause (a) or whose name was specifically disapproved by the District and Sessions Judge on specific grounds.

(d) The character and antecedents of all persons included in the panel shall be got verified through the concerned Superintendent of Police.

Provided that if members from the Scheduled Caste, Scheduled Tribe Community are qualified to be appointed as Government Law Officer, the panel shall contain at least the name of one member from such community.”

# 17. Termination of appointment

(1) Notwithstanding anything contained in these rules, the Government may terminate the appointment of any Government Law Officer other than a Special Government Pleader or Special Public Prosecutor, at any time before the expiry of the term of his appointment without assigning any reasons therefor.

Provided that before such termination he shall be given one month’s notice or shall be paid one month’s salary in lieu of such notice. ”

The Rule position is quite categoric, that the ‘panel’ has to be prepared by the District Collector in consultation with the concerned District and Sessions Judge and nobody can be included in such list, whose name has been specifically disapproved by the District Judge on specific grounds. It is further provided that, the character and antecedents of the persons included in the panel shall be got verified through the Superintendent of Police.

19. Rule 9 of the Rules deals with the term of appointment of Government Law Officers in the District Court, Additional District Court and Sub Court centres, which reads as follows:

# 9. Term of appointment of Government Law Officers in District Court, Additional District Court and Sub Court Centres

The term of appointment of a person appointed as District Government Pleader and Public Prosecutor or Additional Government Pleader and Additional Public Prosecutor , where the two posts are combined or of a person appointed as District Government Pleader or Public Prosecutor or Additional Government Pleader or Additional Public Prosecutor, where the two posts are separate, shall be for a period of three years. The Government may re-appoint any such person for further periods not exceeding three years at a time.

Provided that the services of any such person shall automatically terminate on his attaining the age of sixty years.

From the above rule, it is evident that the initial term of appointment shall be for a period of ‘three’ years with liberty/option for the Government to have him re-appointed for a further period, not exceeding three years at a time, subject to the proviso that services of any such person shall automatically terminate on his attaining the age of sixty years.

20. Rule 17 confers authority upon the Government to terminate engagement of any Govt. Law Officer other than a Special Government Pleader or Special Public Prosecutor at any time before the expiry of the term of his appointment without assigning any reasons. This obviously is in view of the fact that there is no ‘masteremployee’ relationship and the engagement of the persons identified and appointed is based on the trust and confidence. Nothing prevents the Government in identifying persons with more knowledge, competence, credibility, honesty, integrity and such other traits, upon whom more confidence can be reposed, though there may not be any stigma on the part of the person who was already conducting the cases on behalf of the Government. At the same time, such identification has to be in compliance with the requirements as per the KGLO Rules and if it pertains to appointment of Prosecutors/Public Prosecutors, it definitely has to be in compliance with the mandate of Section 24(4) and (5) of the Cr.P.C. For convenience of reference, Section 24 of the Cr.P.C. is extracted below:

# 24. Public Prosecutors

(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court,appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.

(2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district, or local area.

(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district:

Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.

(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.

(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4).

The point to be considered is whether there is anything objectionable from the part of the Government in having issued Annexure-A7 and in proceeding with further steps in identifying and appointing the law officers to conduct the cases of the Government in the District/Subordinate courts. As mentioned already, much reliance has been placed upon the verdicts passed by the Apex Court in

# Kumari Shrilekha Vidyarthi and others vs. State of U.P. and others, AIR 1991 SC 537

and

# Harpal Singh Chauhan and others vs. State of U.P., AIR 1993 SC 2436

from the part of the petitioner, to contend that interference with Annexure-A7 is warranted.

21. In Srilekha Vidyarthi‘s case, the Apex Court was considering the en-bloc removal of the Government Counsel (Civil, Criminal and Revenue) in all the districts of the State of U.P. w.e.f. 28.02.1990 and the directions to prepare a fresh panel to make appointments in place of the existing incumbents, as per the Circular dated 06.02.1990. Two questions were considered as noted in paragraph 4 of the verdict, i.e., whether the impugned Circular was amenable to judicial review and if so, was it liable to be quashed as violative of Art.14 of the Constitution of India , being arbitrary? As observed by the Apex Court in paragraph 6 of the said verdict, the challenge raised before the Court was not solely by individuals who were adversely affected by the Circular, but also by the Association of the District Government Counsel and hence it was held that, it was in a ‘representative capacity’ unlike the instant case, where the challenge is raised by the petitioner alone. As observed in paragraph 7, the Apex Court held that, it was not necessary to consider the exact nature of appointment as the point being examined was whether the Circular was bad for arbitrariness, even assuming the security of tenure of the appointees to be minimal as contended by the State. Various contentions were raised from the part of the State that, it was having all prerogative to select and appoint the Government Law Officers of its choice; that their engagement could be terminated at will at any time without assigning any reason; that such engagement was purely contractual; that it was a matter of ‘trust and confidence’ between the Government and the law Officers and further that, it was purely something like a private litigant and his lawyer and nothing more than that.

22. The Apex Court observed with reference to the relevant provisions of law regarding appointment (Legal Remembrancer’s Manual, 1975) and Section 24 of the Cr.P.C. that the Law Officer was holding a ‘public office’, though not a post under the Government. Various provisions in the Legal Remembrancer’s Manual, 1975 were also adverted to. Paragraph 7.03 of the Manual provided for applications and qualifications for appointment to the above offices or posts. The District Officer was required to consider all the applications received, in consultation with the District Judge, giving due weight to the claim of the existing incumbents, if any and to submit in the order of preference the names of legal practitioners, together with the opinion of the District Judge on the suitability and merits of each candidate, which process of selection expressly involves the District Judges and gives due weight to his opinion, for the obvious reason that the District Judge was expected to know best the comparative merits of the candidates for such appointments.

23. Paragraph 7.06 of the Manual provides for appointment; Paragraph 7.08 provides for renewal of the term; and paragraph 7.09 stipulated for maintenance of character roll of the appointees. To have a proper understanding, the above rules are extracted below:

# 7.06. Appointment and renewal

(1) The legal practitioner finally selected by the Government may be appointed District Government Counsel for one year from the date of his taking over charge.

(2) At the end of the aforesaid period, the District Officer after consulting the District Judge shall submit a report on his work and conduct to the Legal Remembrancer together with the statement of work done in Form No. 9. Should his work or conduct be found to be 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 a term not exceeding three years. On his first engagement a copy of Form No. 2 shall be supplied to him and he shall complete and return it to the Legal Remembrancer for record.

(3) The appointment of any legal practitioner as a District Government Counsel is only professional engagement terminable at will on either side and is not appointment to a post under the Government. Accordingly the Government reserves the power to terminate the appointment of any District Government Counsel at any time without assigning 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, report to the Legal Remembrancer, together with the statement of work done by him in Form No. 9 whether in his opinion the term of appointment of such counsel should be renewed or not. A copy of the opinion of the District Judge should also be sent along with the recommendations of the District Officer.

(2) Where recommendation for the extension of the term of a District Government Counsel is made for a specified period only, the reasons therefore shall also be stated by the District Officer.

(3) While forwarding his recommendation for renewal of 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 standpoint, keeping in view the different aspects of a lawyer’s capacity as it is manifested before him in conducting State cases, and specially his professional conduct;

(ii) the District Officer shall give his report about the suitability of the District Government Counsel from the administrative point of view, his public reputation in general, his character, integrity and professional conduct.

(4) If the Government agrees, with the recommendations of the District Officer for the renewal of the term of the Government Counsel, it may pass orders for re-appointing him for a period not exceeding three years.

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

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

Note – The renewal beyond 60 years of age shall depend upon continuous good work sound integrity and physical fitness of the Counsel.

# 7.09. Character roll

(1) The District Officer and the District Judge shall, before the end of every year and also while leaving the district on transfer, place on record his opinion on the capacity and work of the District Government Counsel. The District Judge shall before recording such opinion obtain a report about the work and conduct of the District Government Counsel from the presiding officers of the courts, where they are generally required to practise. Similarly, the District Officer shall before recording such opinion obtain a report from the Superintendent of Police regarding the counsel’s capacity for prosecution of cases and assistance rendered to the investigating agency. The record, which shall be confidential, shall be maintained by the District Officer. Every adverse entry shall be communicated to the District Government Counsel concerned by the District Officer, with the prior approval of the Government.

(2) The character roll of every District Government Counsel shall also be maintained by the Government in Judicial (Legal Advice) Section. For this purpose, the District Officer shall forward to the Legal Remembrancer a copy of all the confidential reports, recorded by him and the District Judge on the work and conduct of the District Government Counsel by the first week of May every year for being incorporated in the character roll, maintained by the Government.

(3) The District Officer shall forward a copy of all the confidential reports, referred to in para 7.09(2) in respect of District Government Counsel (Criminal) to Home (Police) Section of Secretariat also for information.

(4) Any shortcomings on the part of the District Government Counsel shall at once be brought to the notice of the Legal Remembrancer.”

24. Going by the mandate of paragraph 7.06 of the Manual, the initial appointment could only be for a period of ‘one year’ and at the end of the aforesaid period, a report had to be submitted by the District Officer after consultation with the District Judge on his work and conduct to the Legal Remembrancer, together with the statement of work done in Form No.9. If the work was found to be unsatisfactory, it was to be reported to the Government for orders and if it was satisfactory, the District Government Counsel could be given a deed of engagement in Form No.1 for a term not exceeding three years. Coming to the renewal of the term as provided in paragraph 7.08 of the Manual, three months before the expiry of the term of a District Government Counsel, the District Officer (after consultation with the District Judge and considering his past record of work, conduct and age)was to report to the Legal Remembrancer together with the statement of work done by him in Form No.9, showing whether in his opinion, the term of appointment of such counsel should be renewed or not. The opinion of the District Judge should also be sent along with the said recommendation. While forwarding such recommendation, the District Judge shall give an estimate of the quality of the then Counsel’s work from the judicial standpoint, keeping in view the different aspects of a lawyer’s capacity as it is manifested before him in conducting State cases and specially his professional conduct. The District Officer shall give his report about the suitability of the District Government Counsel from the administrative point of view, his public reputation in general, his character, integrity and professional conduct, after consultation. If the Government agreed with the above recommendations, the term could be renewed for a period not exceeding three years and if not, the District Officer could be required to submit fresh recommendations in terms of paragraph 7.03 of the Manual.

25. As evident from 7.09 of the Manual, it is obligatory for the District Officer and the District Judge concerned, to place on record his opinion on the capacity and work of the Government Counsel before the end of ‘every year’ and also while leaving the district on transfer. Before recording opinion by the District Judge, it is necessary to obtain a report about the work and conduct of the District Government Counsel from the Presiding Officers of the Courts where he is generally required to practise and in the case of recording opinion by the District Officer, he shall obtain a report of the Superintendent of Police regarding the counsel’s capacity for conducting prosecution of cases and as to the assistance rendered to the investigating agencies. It is also stipulated that, a record shall be maintained by the District Officer and every adverse entry shall be communicated to the District Government Counsel concerned with the prior approval of the Government. Further, a character roll of the District Government Counsel is to be maintained by the Government in Judicial (Legal Advice) Section and for this purpose, it is for the District Officer to forward to the Legal Remembrancer, a copy of all the confidential reports recorded by him and the District Judge on the work and conduct of the District Government Counsel, by the first week of May, every year for being incorporated in the character roll maintained by the Government. It was with reference to the above crystal-clear provisions of law, that an observation was made by the Apex Court in paragraph 11 of the Srilekha Vidyarthi‘s case that, initial appointment is for a period of one year, during which the work and conduct of the appointee is watched to adjudge his suitability, calling for a report to be submitted by the District Officer, after consultation with the District Judge and on being found satisfactory, to have the engagement extended by three years.

26. The Apex Court observed in paragraph 12 of the verdict in Srilekha Vidyarthi‘s case that the above provisions clearly revealed that the appointments were to be made, and ordinarily renewed, on objective assessment of suitability of the person based on the opinion of the District Officer and District Judge and character roll is maintained for keeping a record of the suitability of the appointee to enable an objective assessment for the purpose of his continuance as a Law Officer in the District. By virtue of Clause (3) of para 7.06 in the Manual, private practice and participation in political activities were barred in so far as the Government counsel was concerned. It was in the said circumstance, that a finding was rendered that there was obviously an ‘element of continuity’ of the appointment; unless the appointee was found to be unsuitable either by his own work, conduct or age or in comparison with any other suitable candidate available at the place of appointment. Suitability of the appointee being the prime criterion for any such appointment, it was observed by the Apex Court that ‘appointment of the best amongst the available’, was the object sought to be achieved by the above provisions, which, even otherwise should be of paramount consideration in discharge of the Governmental function aimed at promoting public interest. It was in the above background, that the power to terminate the engagement, vested with the Government, ‘without assigning any reason’ was analysed, holding that the course pursued by the Government to terminate the engagement of all the counsel by one stroke, as per the Circular dated 06.02.1990 was totally arbitrary and was without any regard to the scheme of the ‘Manual’ regarding engagement and renewal of the term.

27. Coming to the case in hand, none of such provisions as discussed by the Apex Court in Srilekha Vidyarthi‘s case as to the monitoring/watching of the work of the Government Counsel/Public Prosecutor does exist in the KGLO Rules available in Kerala and there is no record as to any work study, character roll or such other vital aspect as contained in the Legal Remembrancer Manual applicable to the State of U.P. Similarly, when the engagement in U.P. is initially for a period of ‘one’ year, extendable by a further period of ‘three’ years (based on the performance and records), it is for a period of ‘three years’ in Kerala, right from the date of engagement, of course with liberty to the Government to terminate such engagement without assigning any reason. There is an ocean of difference between the scheme of the provisions between these two States and as such, the idea and understanding of the petitioner that his case squarely comes within the purview of Srilekha Vidyarthi‘s case, is thoroughly wrong and misconceived.

28. There is no doubt or dispute that every State action has to be transparent and should satisfy the test of reasonableness, even if it be a contractual matter and that it shall never be arbitrary, as held by the Supreme Court in

# Ramana Dayaram Shetty vs. the International Airport Authority of India, AIR 1979 SC 1628

But the result of the test of arbitrariness as revealed in Srilekha Vidyarthi‘s case in the light of the relevant provisions of law, discussed as above, as applicable to the State of U.P, is not brought about in so far as the engagement in Kerala is concerned.

29. As mentioned above, the case projected before the Supreme Court in Srilekha Vidyarthi‘s case was also in a representative capacity having preferred by the Association of Government Pleaders; whereas in the present case, only individual grievance is raised, that too on the basis of a premature cause of action, apprehending adverse steps pursuant to Annexure-A7. What the further step would be, after collecting the data/particulars pursuant to Annexure-A7 in respect of the petitioner, is still to be known. It is always open for the Government to consider the matter individually and pass appropriate orders in accordance with law. In so far as the exercise is done in conformity with the relevant provisions of the KGLO Rules, read in the light of the mandate of Section 24 (4) and (5) of the Cr.P.C. (when it pertains to the appointment of Public Prosecutors/Addl. Public Prosecutors), the proceedings cannot be said as tainted in any manner. Unlike the position in the State of U.P., (where a continuity of engagement is envisaged in the relevant rules/provisions in the Manual, but for elimination of unsuitable hands based on clear cut records), no such continuity is envisaged anywhere in the Rules applicable in Kerala and even in the case of reengagement, it is as good as a ‘fresh appointment’ and nothing more.

30. The scope of the verdict passed in Srilekha Vidyarthi‘s case had come up for consideration before a Division Bench of this Court in

# Mohammed Ashraff vs. State of Kerala, 1991 (2) KLT 818

It was a case where the concerned writ petitioners, who were appointed as Government Pleaders in this Court for a period of three years were served with a notice just a few months after assumption of charge, proposing to terminate their engagement in terms of Rule 17 of the KGLO Rules. After hearing both the sides, the Bench observed that, out of 35 existing Government Pleaders, 15 had resigned pursuant to the change in the Ruling Front, who were running the Government and that the Government had permitted ‘4’ Government Pleaders to continue, whereas notice was issued only to the remaining persons. The sanctity of the verdict passed by the Supreme Court in Srilekha Vidyarthi‘s case, [where the relevant rules gave a right for renewal, unless something was shown against the existing incumbents], was also taken note of by the Bench in contrast to the Kerala Rules, where there was no vested right of renewal and each time, it was a ‘fresh appointment’ and the Government had a right under Rule 17 to terminate the engagement even within the original term of appointment. This Court had also called for the relevant files and examined the same observing that there was nothing arbitrary on the part of the Government. It was held that the Government was free to have their case conducted through the lawyers on whom they reposed confidence and as a natural corollary, it was open for the Government to terminate their engagement, appointing persons who were sufficiently competent and on whom, the Government had sufficient trust and confidence. The verdict passed in Srilekha Vidyarthi‘s case was accordingly distinguished and the challenge raised by the writ petitioners was repelled.

31. Validity of the step for termination of the existing counsel and for appointment of fresh Law Officers in the State of U.P. had come up for consideration again before the Apex Court in Harpal Singh Chauhan‘s case (cited supra). The process was to be governed by the provisions of the ‘Manual’, already extracted herein before. On expiry of the tenure of the concerned Law Officers, in the course of further proceedings, the District Judge had prepared two Lists-List A and List B. In List A, the District Judge mentioned the names of the law officers whose work and conduct were approved for extension of their term as Government Counsel, whereas in List B, it contained the names of the remaining Counsel, who were shown as ‘average lawyers’. Despite the receipt of the lists, the District Magistrate did not forward the ‘List A’ for renewal/extension of the term of the Government Counsel, since in the enquiry conducted by him, it was revealed that their credentials were not to the requisite extent. After hearing both the sides, the Apex Court deprecated the course pursued by the District Magistrate and observed that the expression ‘panel of names of persons‘ did not mean that some names were to be suggested by the Sessions Judge and some comments were to be made, in respect of those names suggested by the District Magistrate; without proper consultation and discussion over such names. ‘Effective consultation‘ as contemplated under Section 24 of the Cr.P.C. was highlighted and observing that no such panel in terms of Section 24(4) was prepared in the said case, the proceedings were intercepted, giving appropriate directions to the District Magistrate to perform his statutory duty afresh in terms of section 24(4) of the Cr.P.C. and the relevant paragraphs of the concerned Manual which were not inconsistent with Section 24(4) of the Cr.P.C. The Apex Court also held in paragraph 15 that in Srilekha Vidyarthi‘s case, the Apex Court was not concerned with the question regarding the extension/renewal of the term of appointment of the Government counsel and the point considered was only with regard to arbitrariness in the step to terminate appointment of the Government counsel in different districts of the State by an omnibus order, even though those appointments were all individual. The Apex Court also observed in paragraph 16 that, merely because there was a provision for extension or renewal of the term, the same could not be claimed as a matter of right. Still further, the Apex Court made it clear in paragraph 19 that the members of the legal profession are required to maintain high standard of legal ethics and dignity of profession; and that they are not supposed to solicit work or seek mandamus from Courts in matters of professional engagements.

32. Appointment of Law Officers in the State of U.P., based on the provisions of the above Manual was again the subject matter of consideration before the Apex Court in

# State of U.P. and others vs. U.P. State Law Officers Association and others, AIR 1994 SC 1654

The issue was with regard removal of 26 Law officers of the State, among the total of 64 Law Officers engaged in tune with the above provisions of the ‘Manual’. After a detailed scrutiny of the relevant provisions of the Manual and the dictum laid down in Srilekha Vidyarthi‘s case, it was observed that appointment of two sets of officers, i.e., Government Counsel in the High Court, as involved in the said case, was entirely different from the norms for appointment of Government Counsel dealt with by the Apex Court in Srilekha Vidyarthi‘s case where a different procedure was stipulated. It was accordingly held that, the ratio of the decision in Srilekha Vidyarthi‘s case can hardly be applied to the appointment of Law Officers in the High Court whose appointment itself was arbitrary and was made in disregard to Article 14 of the Constitution as discussed therein. Accordingly, the interference made by the High Court with the orders passed by the Government/authorities, was set aside, holding that termination of appointment of the respondent Law Officers was valid and proper.

33. In

# State of UP v. Rakesh Kumar Keshari, AIR 2011 SC 1705 : (2011) 5 SCC 341

the issue that came up for consideration before the Apex Court 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 safe guard the public interest, monitory consideraion, suitablility of the incumbent and the interest of the Government as the client. In the said case, the party respondents were appointed on contract basis for the post of Assistant District Government Counsel (Criminal) in Ghazipur District of State of UP on 22.10.2001. As the terms of the appointment of the party respondents were upto 10.10.2002, the District Judge, Ghazipur, after being satisfied with the work and conduct of the respondents, had recommended to the District Magistrate, Ghazipur to get extended the terms by communication dated 31.7.2002. The District Magistrate, Ghazipur had recommended to the State Government to extend the term of appointment of the party respondents vide communication dated 31.7.2002. In the meanwhile, the posts of Assistant District Government Counsel (Criminal) on which the party respondents were working were advertised by the then District Magistrate, Ghazipur.

34. In Rakesh Kumar Keshari‘s case (cited supra), after taking note of the ratio in the Three-Judges Bench decision of the Apex Court in Johri Mal’s case (supra) and also the Constitution Bench decision in

# Special Reference No.1 of 1998, in re Presidential Reference, AIR 1999 SC 1 : (1998) 7 SCC 739

the Apex Court held that the decision of the State Government, not to accept the recommendation made by the District Magistrate, cannot be said to be arbitrary. The Apex Court has made it clear that Assistant District Government Counsel (Criminal) are not only Officers of the Court, but also the representatives of the State. They represent the 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 Assistant District Government Counsel (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 of the Constitution of India, however, in a given 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.

35. In Rakesh Kumar Keshari‘s case (cited supra), the Apex Court has also relied on an unreported decision in Civil Appeal No.3785/2003 dated 11.11.2010. In the said judgment, the Apex Court reiterated that in the matter of engagement of a District Government Counsel, the concept of public office does not come into play. The choice of Counsel is for the Government and none can claim a right to be the counsel. There is no right for appointment of a Government Counsel. The Apex Court held further that the High Court, in exercise of its jurisidction under Article 226 of the Constitution of India, cannot compel the State to utilise the service of an Advocate, irrespective of its choice and it is for the State to select its own counsel. Paragraph 16 of the judgment of the Apex Court in Rakesh Kumar Keshari’s case, dealing with the unreported decision in Civil Appeal No.3785/2003 reads thus:

16. This position is again made clear in an unreported decision of this Court dated November 11, 2010 rendered in Civil Appeal 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 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 03.06.2002 refusing renewal of the term of the respondent as District Government Counsel (Criminal) and had directed the State Government to renew the term of the respondent as Government Counsel. While allowing the appeal filed by the State Government this Court has held as under:

“It is difficult to discern as to how the High Court has upheld 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 decision of this Court in

# State of U.P. and another v. Johri Mal, (2004) 4 SCC 714 : AIR 2004 SC 3800 : 2004 AIR SCW 3888

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 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.

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 select its own counsel.

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

The principle laid down by the Apex Court in Rakesh Kumar Keshari‘s case (cited supra) was reiterated in

# State of UP vs. Ajay Kumar Sharma, (2014) 3 SCC 568

36. In

# State of Punjab and another vs. Brijeshwar Singh Chahal and another, (2016) 6 SCC 1

the Apex Court made it clear that appointment procedure of Government Counsel should be based on merit and should be fair, reasonable, transparent and nondiscriminatory. The question considered mainly was whether appointment of Law Officers by the State Government can be questioned or the process by which such appointments are made, can be assailed on the ground that the same are arbitrary, and hence, violative of the provisions of Article 14 of the Constitution of India. The questions considered have been detailed in paragraph No.7, which are extracted below:

“7. The following questions fall for our determination:

7.1 (i) Whether the States of Punjab and Haryana have made any realistic assessment of their requirement before making appointments of Law Officers.

7.2 (ii) Whether the States of Punjab and Haryana have formulated any scheme, policy, norms or standards for appointing Law Officers.

7.3 (iii) Whether appointment of Law Officers by the State Governments need to be made on a fair,reasonable, nondiscriminatory and objective basis; and

7.4 (iv)If answer to Questions (i),(ii) and (iii) are found in the negative, what is the way forward?

[Incidentally, we doubt whether any typographical mistake has crept in the question formulated at 7.4 (iv) in so far as it might have been”if answer of qu estions (i) and (ii) are found in the negative and the answer to question (iii) is found in the affirmative .”]

37. In paragraph No.11, the answer to question (i) was found in the negative. In paragraph No.8, answer to question (ii) was also answered in the negative. In paragraph 42, answer to question (iii) was found in the affirmative. The Apex Court summed up the propositions which are legally unexceptionable in paragraph 41, which are reproduced below:

41. To sum up, the following propositions are legally unexceptionable:

41.1. The Government and so also all public bodies are trustees of the power vested in them.

41.2 Discharge of the trust reposed in them in the best possible manner is their primary duty.

41.3 The power to engage, employ or recruit servants, agents, advisors and representatives must like any other power be exercised in a fair, reasonable, non-discriminatory and objective manner.

41.4. The duty to act in a fair, reasonable, non-discriminatory and objective manner is a facet of the Rule of Law in a constitutional democracy like ours.

41.5 An action that is arbitrary has no place in a polity governed by Rule of Law apart from being offensive to the equality clause guaranteed by Article 14 of the Constitution of India.

41.6 Appointment of Government Counsel at the district level and equally so at the High Court level, is not just a professional engagement, but such appointments have a ‘public element’ attached to them.

41.7. Appointment of Government Counsel must like the discharge of any other function by the Government and public bodies , be only in public interest unaffected by any political or other extraneous considerations.

41.8. The Government and public bodies are under an obligation to engage the most competent of the lawyers to represent them in the courts for it is only when those appointed are professionally competent that public interest can be protected in the courts.

41.9. The Government and public bodies are free to choose the method for selecting the best lawyers but any such selection and appointment process must demonstrate that a search for the meritorious was undertaken and that the process was unaffected by any extraneous considerations.

41.10. No lawyer has a right to be appointed as a State/Government Counsel or as Public Prosecutor at any level, nor is there any vested right to claim an extension in the term for which he/she is initially appointed. But all such candidates can offer themselves for appointment, reappointment or extension in which event their claims can and ought to be considered on their merit, uninfluenced by any political or other extraneous considerations.

41.11. Appointments made in an arbitrary fashion, without any transparent method of selection or for political considerations will be amenable to judicial review and liable to be quashed.

41.12. Judicial review of any such appointment will, however, be limited to examining whether the process is affected by any illegality, irregularity or perversity/irrationality. The Court exercising the power of judicial review will not sit in appeal to reassess the merit of the candidates, so long as the method of appointment adopted by the competent authority does not suffer from any infirmity. “

38. It was accordingly held in paragraph 48 that no lawyer has a right to be appointed as State Government Counsel or as Public Prosecutor at any level, nor does he have a vested right to claim extension of the term for which he/she was initially appointed. The Apex Court made it clear that eligible candidates can only offer themselves for any such appointment or extension, in which event, their claims can and ought to be considered on their merit uninfluenced by any political or other extraneous consideration; adding that such consideration shall, however, have to be in accordance with the norms settled for such appointments and on the basis of their inter-se merit, suitability and performance, if they have already worked as State Counsel and that’s all.

39. It is true that a Division Bench of this Court in Omanakuttan‘s case held that 1978 Rules as well as 2002 Rules (KGLO Rules)in so far as they deviate from the procedure prescribed for appointment of Public Prosecutors under Section 24 of the Cr.P.C., as interpreted by the Apex Court in Chauhan‘s case (cited supra) are bad and to that extent, they were declared to be invalid and unenforceable; categorically declaring that the procedure prescribed under Section 24(4) of the Cr.P.C. for appointment of Public Prosecutors is required to be followed in the manner as interpreted by the Supreme Court in Chauhan‘s case. (Paragraph 18). Since the rules as such is not struck off from the statute book, but for making a qualified declaration as above, with reference to the Chauhan‘s case, it is necessary to have a comparative analysis, more so in view of the subsequent ruling of the Larger Bench of the Supreme Court in

# State of U.P. and another vs. Johri Mal, (2004) 4 SCC 714

virtually sustaining the State action, after a detailed deliberation of both Srilekha Vidyarthi‘s case and Chauhan‘s case.

40. In so far as the appointment of a Public Prosecutor and Addl.Public Prosecutor is concerned, there cannot be any doubt that it has to be effected from the panel prepared by the District Collector in consultation with the District and Sessions Judge and nobody other than a person included in the said panel shall be appointed by the Government. As such, preparation of the panel, after ascertaining the various traits such as qualification, experience, integrity, reliability, reputation and character and antecedents etc., in consultation with the District and Sessions Judge is an essential aspect involving paramount importance, by virtue of the public element involved in identifying and appointing a suitable person by the Government. To what extent the Rule deviates, if it does so, in the light of declaration of law by the Larger Bench of the Supreme Court as per the decision in Johri Mal‘s case (cited supra) forms a matter to be examined by this Court in the above circumstance.

41. Rule 8 of the ‘KGLO Rules’ has already been extracted. It is very relevant to note that the Government, while formulating the Rules, has used different terminology, as it appears under Rule 8(2); consciously using the words ‘list‘ in sub-clause (a) and both the words ‘list’ and ‘panel‘ in clauses (b) and (c) and confining to the term ‘panel‘ in sub-clause (d). In sub-section (4) and (5) of Section 24 of the Cr.P.C. only one terminology is used, i.e., the word ‘panel‘ to be prepared by the District Collector in consultation with the Sessions Judge. Why such different terminology is used in Rule 8(2) and is there any material difference, is the next question to be looked into.

42. As per sub-clause (a) of Rule 8(2), it is a mere ‘list’ of advocates having ‘7’ years of practice in the Bar and who are having the qualification, experience, integrity, reliability, reputation and character and antecedents, collected by the District Collector from the roll of Advocates of the Bar Council of Kerala, from appropriate sources. It is this ‘list‘, that is forwarded by the District Collector to the Sessions Judge for consultation, making it obligatory for the District and Sessions Judge to offer his remarks within ten days. After expiry of the said period of ten days, the District Collector is vested with the duty to prepare the ‘panel‘, based on the ‘list‘ forwarded by him to the District and Sessions Judge as specified in sub-clause (b), making it obligatory for the District Collector to ensure that no person, whose name was never shown in the ‘list‘ prepared by him under clause (a) or anybody, who was specifically disapproved by the District and Sessions Judge on specific grounds was included in the panel. The character and antecedents of the persons included in the said ‘panel‘ is still to be got verified through the concerned Superintendent of Police, as mentioned in sub-clause(d).

43. From the above, it is quite obvious that there is much difference in the terms ‘list‘ and ‘panel‘ . In the first place, as mentioned already, the ‘list‘ is only a collection of names by the District Collector, who has to satisfy the requirements and on finalising the process in consultation with the District and Session Judge, it becomes a ‘panel‘, where the names of the persons who are specifically disapproved by the District and Sessions Judge are never to be included. The safeguard mentioned in sub clause (c), that such ‘panel‘ shall not contain the name of anybody who was not there in the ‘list‘ prepared by the District Collector under sub clause (a) is intended only to see that nobody from outside who has not undergone the scrutiny under the magnifying glass used by the District and Sessions Judge does secure a place in the ‘panel’ to be prepared by the District Collector. This is only to assert the distinct role of the District and Sessions Judge to play in the preparation of ‘panel‘ with reference to the different traits and to ensure that no undesired element does get a chance to be enlisted in the ‘panel‘, to be forwarded to the Government, making it open for the Government to appoint appropriate/competent persons from such ‘panel‘. The difference between the two terms -‘list‘ and ‘panel‘ as it appears under the different clauses of the above Rule, the sanctity attached to the same, the circumstances in connection with the preparation of such ‘list‘ and ‘panel‘ were not seen pointed out before the Division Bench while considering Omanakuttan‘s case and as a natural consequence, the same was not adverted to by the Bench as well.

44. In so far as sub-sections (4) and (5) of Section 24 of the Cr.P.C. are concerned, they clearly refer to the term ‘panel‘ and preparation of the same by the District Collector, in consultation with the District and Sessions Judge. What flows from the provision is as to the necessity to have ‘mandatory/effective consultation‘ with the District and Sessions Judge as to the suitability of the person concerned. This alone has been explained and asserted by the Apex Court in Chauhan‘s case and there cannot be any dispute with regard to the same. As observed by the Apex Court, the expression “panel of names of persons” used in Section 24(4) and (5) do not mean that some names are to be suggested by the Sessions Judge and some comments are to be made in respect of those names by the District Magistrate, without proper consultation and discussion over such names. What has been asserted by the Supreme Court is that, consultation with the District and Sessions Judge is not an empty formality and that the statutory mandate requires ‘effective and real consultation‘ by the District Magistrate and the District and Sessions Judge; and if only this lapse is established, will there occur any infraction of the provisions of Section 24 of the Cr.P.C. It is in the said circumstance, that the Apex Court has made it clear in Chauhan‘s case that, if the District and Sessions Judge has affirmed the suitability of a person with regard to qualification, experience, integrity, reliability and reputation, it is only the suitability of such person for being appointed as Public Prosecutors ‘on administrative grounds’, that can be decided by the District Magistrate.

45. As observed by the Apex Court in

# S.P. Gupta and others vs. President of India and others, AIR 1982 SC 149

the term ‘consultation’ could never amount to concurrence, but must amount to a meeting of minds. If the said statutory requirement is satisfied, it is not for this Court to intercept the proceedings, when the action pursued by the Government is supported by proper reasons. It is true that Rule 17 of the ‘KGLO Rules’ enables the Government to terminate engagement of a Government Pleader/Public Prosecutor/Addl. Government Pleader and Addl. Public Prosecutor without assigning any reason. The meaning of the term ‘without assigning any reason’ has been explained by the Supreme Court in Srilekha Vidyarthi‘s case holding that it does not mean that the same amounts to non-existence of any reason, but that the reason which has necessarily to be there, however, does not require to be communicated to the party concerned.

46. With regard to the ‘reason’ concerned, the submission made by the learned Advocate General is that the initial engagement was only for a period of ‘three’ years and having completed the said term, several other eligible hands came to be qualified, upon whom the Government can repose more confidence. Admittedly, “once a Govt.Pleader/Public Prosecutor, always a Govt.Pleader/Public Prosecutor” is not the rule and as made clear by the Supreme Court in the decision cited supra, there is no vested right for any Govt. Pleader/Public Prosecutor to get appointed or to get his term renewed as a matter of right; more so, when it is not a ‘civil post’ and the terms and conditions of engagement are entirely different. Necessity to have existence of such reason was asserted by another Division Bench of this Court in W.A. No. 458 of 2007. After making reference to the various judgments of the Supreme Court including in Srilekha Viidyarthi‘s case and Johri Mal‘s case and a judgment of this Court in W.A.No.1364 of 2004, the Bench held that valid reasons of course must exist and that the State has a right to choose the best talented people who enjoy their ‘Trust and confidence’ more, which of course was a ‘policy decision’, with which no interference was possible. It was also held by the Bench in paragraph 20 of the said decision, that the verdict passed by the Apex Court in Srilekha Vidyarthi‘s case has undergone a sea-change when a ‘Three member’ Bench of the Apex Court rendered its verdict in

# State of U.P. vs. Johri Mal, (2004)4 SCC 714

which was rendered highlighting the element of great ‘Trust and confidence’ to be reposed by the Government in identifying the persons to be appointed in terms of Section 24(4) and (5) of the Cr.P.C. The observations in paragraph 23 of the verdict passed by this Court are relevant which are extracted below: (W.A.458 of 2007)

“23. As held by the Supreme Court in the matter of appointment of Counsel by the State, be it an Additional Government Pleader or an Additional Public Prosecutor, the choice is that of the Government. If the Government has decided not to continue the appointment of the Appellants, this court will not be justified in thrusting upon an unacceptable counsel on an unwilling client. We are conscious that in a matter like this, the scope of judicial review is limited and is available where the State has failed in discharging its public duty, where the State has departed from its legal policy, where the State has not complied with mandatory provisions of law and where the State has removed the Appellants dehors the statute. On an anxious consideration of the case in its entirety, we are satisfied that the Appellants have not made out a case for judicial review and that the Learned Single Judge has rightly dismissed the writ petition.”

We fully concur with the views expressed by the Bench as aforesaid.

47. Scope of the verdict passed by a Division Bench of this Court in 2003 (1) KLT 226 in relation to termination on expiry of the renewed term of the concerned Addl. District Government Pleader/Addl.Public Prosecutor came to be considered by another Division Bench of this Court in

# Francis Jude Netto vs State of Kerala, 2007 (4) KLT 210

with reference to the law declared by the Apex Court in Chauhans’s case as well as Johri Mal‘s case (cited supra). After making a reference to Rule 8(2) of the ‘KGLO Rules’ and the law declared by a ‘Three Member Bench’ of the Supreme Court in Johri Mal‘s case, it was held that the petitioner could not contend that he should be allowed to continue till the original term expired. Accordingly, the W.A. was dismissed, upholding the verdict passed by the learned single Judge rejecting the writ petition. In the said case, the process of consultation made by the District Magistrate with the concerned District and Sessions Judge was adverted to and the relevant portion of the letter written by the District and Sessions Judge to the District Collector was extracted in paragraph 6 of the judgment. However, observing that since the District and Sessions Judge had not ‘specifically disapproved’ the name of any particular person, giving any ‘specific ground’ with reference to qualification, experience, integrity, reliability, reputation and character and antecedents, it was held open for the District Collector to have proceeded with the ‘panel‘ finalised, with liberty to the Government to have appointed competent hands from the ‘panel‘. It was also made clear by the Bench that, if the District Judge reported that a candidate lacked experience, reputation, character, etc., that must be given due weight, rather than asking for specific grounds.

48. The very same Rules and the relevant provisions of Cr.P.C. as applicable to the State of U.P. (which was considered by the Apex Court in in Srilekha Vidyathis’s case as well as in Chauhan’s case) had come up for consideration before a ‘Three Member Bench’ of the Supreme Court in Johri Mal’s case [(2004) 4 SCC 714). The State of U.P had amended sub-section (1) of Section 24 and deleted sub sections (4) to (6) of Section 24 (which mandated consultation with the High Court for appointment of Public Prosecutor for the High Court and for the District and Sessions Court), which was noted as an instance to overcome the decision of the Supreme Court in Srilekha Vidyarthi’s case . The Apex Court held that, it was pained to see that such an amendment was brought about only by the State of U.P. and that the Apex Court could not see any rationale in the said action. The State was alerted of the necessity to consult the District Judge with reference to the law declared in

# Mundrika Prasad Singh vs. State of Bihar, (1979) 4 SCC 701

and it was asserted that the State should give primacy to the opinion of the District Judge. While holding that the course of action would demonstrate ‘fairness and reasonableness’ of action, it was specifically held that, to a large extent the action of the State would not be dubbed as politically motivated or otherwise arbitrary, in so far as the rights and liberties were concerned. Observing that the relevant provision was a salutary one, the Court expected that the State of U.P. would either suitably amend the provision or despite deletion, the State shall consult the High Court with a view to ensure fairness in action. The challenge raised by the State of U.P. was upheld and the verdict passed by the concerned High Court was set aside, thus allowing the appeals.

49. The observations made by the Supreme Court in paragraphs 38, 40, 55 and 75 are relevant. The Bench observed in paragraph 38 that a distinction was to be borne in mind that, between the appointment of a Public Prosecutor or Additional Public Prosecutor on one hand and the Assistant Public Prosecutor, on the other. In so far as the latter category is concerned, they are employees of the State, holding ‘civil post’ and their appointment is governed by the service rules framed by the concerned State. Unlike this, the appointment of Public Prosecutor is governed by the Code of Criminal Procedure and/or the executive instructions framed by the State governing the terms of their appointment. It is also added that the ‘proviso’ appended to Article 309 of the Constitution of India is not applicable to their case and their appointment is a tenure appointment. The Bench observed that the Public Prosecutors retain the character of legal practitioners for all intent and purport. It was also observed that, though they are discharging public functions and certain statutory powers are conferred upon them, making their duties and functions as onerous, it would never mean that their conditions of appointment are governed by any statute or statutory rule. Observations made by the Supreme Court in paragraph 40 of the said verdict are very important and hence extracted below:

“40. So long as in appointing a counsel the procedures laid down under the Code of Criminal Procedure are followed and a reasonable or fair procedure is adopted, the Court will normally not interfere with the 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 over-turn any decision unless an exceptional case is made out. The question as to whether the State is satisfied with the performance of its counsel or not is primarily a matter between it and the counsel. The Code of Criminal Procedure does not speak of renewal or extension of tenure. The extension of tenure of public prosecutor or the district counsel should not be compared with the right of renewal under a licence or permit granted under a statute. The incumbent has no legal enforceable right as such. The action of the State in not renewing the tenure can be subjected to judicial scrutiny inter alia on the ground that the same is arbitrary. The Courts normally would not delve into the records with a view to ascertain as to what impelled the State not to renew the tenure of a public prosecutor or a district counsel. The jurisdiction of the Courts in a case of this nature would be to invoke the doctrine of ‘Wednesbury Unreasonableness’ as developed in

# Associated Provincial Picture House Ltd. v. Wednesbury Corpn, (1947) 2 All ER 680

The Bench observed in paragraph 55 of the judgment that, appointment of District Government Counsel cannot be equated with the appointment of the High Court and the Supreme Court Judges; adding that a distinction must be made between professional engagement and a holder of high public office. The Bench also expressed the view that it was having reservations about some principles of law put forth by the Court in Srilekha Vidyarthi’s case, as discernible from paragraph 60 of the said verdict. However the legal position as to the engagement of the District Government Counsel was asserted in crystal-clear terms in paragraph 75, which reads as follows:

“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 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 Art. 14, however, will be attracted to a limited extent as the functionaries named 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 act in defiance, deviation and departure of the principles of law, the Court may interfere. The Court may also interfere when the legal policy laid down by the Government for the purpose of such appointments is departed from or mandatory provisions of law are not complied with. Judicial review can also be resorted to, if a holder of a public office is sought to be removed for reason dehors the statute.”

Further observations as contained in paragraphs 84 and 85 are also relevant and hence they too are reproduced below:

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

“85. The age-old tradition on the part of the States in appointing the District Government counsel on the basis of the recommendations of the District Collector in consultation with the District Judge is based on certain principles. Whereas the District Judge is supposed to know the merit,competence and capability of the concerned lawyers for discharging their duties, the District Magistrate is supposed to know their conduct outside the Court vis-a-vis the victims of offences, public officers, witnesses etc. The District Magistrate is also supposed to know about the conduct of the Government counsel as also their integrity.”

50. The premature termination of engagement of the Government Pleader in the High Court of Kerala was the subject matter of consideration in W.P.(C)No.19013 of 2004, wherein interference was declined and the writ petition was dismissed. On challenging the same by the aggrieved writ petitioner by way of W.A.No.1364 of 2004, the Bench observed that there was absolutely no tenable ground to sustain the challenge and the appeal was dismissed as per judgment dated 17.03.2005. The observations as contained in paragraph 4 are very relevant , which is extracted below:

“4. An Advocate like the appellant belongs to a noble and learned profession. An Advocate cannot even submit an application seeking appointment as Government Pleader since the relationship between the Government and its counsel is qualitatively different from that of a master and servant. It is essentially a position which requires mutual confidence and trust. As such no member of the legal profession would (or should) cling on to a file or a client, the moment the client is seen to show the slightest dissatisfaction about the counsel’s conduct or services. Going the rationale of the work which a Government Pleader has to perform, it is perhaps only proper that the Government have the power given to them to terminate the services without assigning any reason. The relationship between the Government and the Government Pleader is fiduciary in character and hence it is on a higher plane, in a different context and at a different level. Though it may be an office under the State, it is one which necessitates an extra ordinary degree of confidence on the part of the State. To compel the State to continue to deal with a Law Officer irrespective of other circumstances would be an arbitrary imposition of the services of a Law Officer on the Government and may also be contrary to public policy. The Government Pleader has to be a person in whom the Government has confidence.”

51. From the above, it is quite clear that the issue in question has to be considered in the light of Rule 8(2) of the ‘KGLO Rules’ read in consonance with the mandate of sub-section (4) and (5) of Section 24(4) of the Cr.P.C. and of course in the light of the law declared by the Apex Court in

# State of U.P. and another vs. Johri Mal, (2004) 4 SCC 714

52. The mandatory requirement under the provisions is to have a ‘real and effective consultation‘ with the District and Sessions Judge and nothing more. In the process of such selection, apart from pointing out the unsuitability of a person as contained in the ‘list’ submitted by the District Collector for being included in the ‘panel’ to be considered by the Government for appointment, it may be open for the District and Sessions Judge to point out the names of other competent hands as well, who could be included in the panel to be prepared. Normally, this does not happen as it is not for the District and Sessions Judge to get appointed any particular person, either as Government Pleader/Public Prosecutor/Addl. Government Pleader/Addl. Public Prosecutor and the District and Sessions Judge is only concerned with the ‘process of selection‘, to ensure that proper and competent person is selected and that no square peg is placed in a round hole. Even if any person is suggested or recommended by any District and Sessions Judge, it cannot be said that such person alone has to be appointed by the Government, unless no other person is there in the panel, who is not spoken against by the District and Sessions Judge and upon whom more confidence could be placed by the Government.

53. ‘Advocacy’ is an art and it forms a conglomeration of various traits. Academic brilliance, by itself, may not be enough to conduct the cases effectively. Along with qualification/knowledge of relevant provisions of law, experience, honesty, intergrity, sincerity, goodwill, reputation, analytical skills, ability to present and project the picture in appropriate manner, etc., are matters of relevance. It is also a matter for the Government to consider upon whom, it could place ‘more Trust and confidence‘ to conduct a case more effectively, once the given circumstances/requirements are satisfied by the persons included in the ‘panel’. As such, no interference is warranted with regard to the course proposed to be followed by the Government, more so when the challenge raised against Annexure A7 is premature, in so far as the petitioner is concerned.

54. It is also relevant to note in the light of the observations of the Supreme Court in Chauhan’s case and also in Johri Mal’s case [(2004) 4 SCC 714], that Section 24 of the Cr.P.C. does not envisage any ‘extension’ or ‘renewal’ of the term of appointment. Whenever the original term is expired, it becomes a process of fresh selection and appointment, though it may involve re-appointment of the same person. This means, all the steps have to be started afresh and a ‘panel’ has to be prepared in consultation with the District and Sessions Judge, ultimately leading to appointment of a competent person from the ‘panel’. Admittedly, the original term of appointment of the petitioner, as per Annexure A1, came to an end on 10.04.2016. Before the end of the said term, the petitioner submitted a request expressing willingness to continue, upon which the District Collector sought for the remarks of the District and Sessions Judge. As per Annexure-A4, the concerned Sub Judge/ Addl.Sessions Judge opined that there was nothing objectionable and that the term could be renewed/extended. The position was intimated by the District and Sessions Judge to the District Collector as per his letter dated 01.03.2016, based on which, recommendation was sent by the District Collector on the same date, to the Government, as per Annexure-A5, in turn leading to renewal of term as per Annexure-A6 G.O. From the proceedings, it is explicitly clear that, but for seeking for the suitability of the petitioner alone, to have his term extended, no preparation of any ‘panel’ ( which necessarily has to contain names of more persons than ‘one’) has been made by the District Collector, in consultation with the District and Sessions Judge, making the Government to have the option to choose the most competent person who gets included in the ‘panel’. Since no ‘panel’ has been prepared by the District Collector, issuance of Annexure-A6 G.O., does not prevent the Government from rectifying the mistake by appropriate means and to get a proper ‘panel’ prepared and forwarded by the District Collector, in compliance with the relevant provisions of law. It is open for the petitioner also to seek for a chance to be considered in such exercise and if he is found fit, it is open for the Government to have him appointed as well; with regard to which this Court does not intend to express anything.

In the above facts and circumstances, this Court finds that the Original Petition is devoid of any merit and the challenge is premature as well. Accordingly, interference is declined and the Original Petition is dismissed.

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