1. District Government Counsel (Civil and Criminal), appointed by the Government in subordinate courts in pursuance of power conferred by Section 24 of CrPC read with Legal Remembrance Manual (L.R. Manual), has been the battle ground in this State of U.P. since almost three decades. The necessary element to make appointment of District Government Counsel keeping in view the public good and interest as a condition precedent as held by the Honble Supreme court vide Mahadeo Vs. Shantibhai and Others, ; Mundrika Prasad Singh Vs. State of Bihar, , seems to be obliterated by their stroke of pen with the change of Government with uncared mind to the statutory mandate and constitutional ethos. The State counsel seems to be appointed or removed without following due course of law and mandate of Honble Supreme Court flowing from catena of judgments including Km. Shri Lekha Vidyarthi etc. etc. Vs. State of U.P. and others, reported in 1991 SCC (1) 212, as well as State of U.P. and Another Vs. Johri Mal, cases and seems to be deliberately ignored on one or the other ground with the assistance of the Office of Legal Remembrancer of the participatory organ.

2. Since almost three decades the Office of Principal Secretary (Law) and its associates who are the members of the subordinate judiciary hold the rank of District Judge/Additional District Judge or Civil Judge (Sr. Div.) ordinarily, yield to political pressure in the matter of appointment of District Government Counsel. The observations made by the Division Bench of this court affirmed by Honble Supreme Court in the case reported in 964673--> , Sadhana Sharma Vs. State of U.P. and Others, , delivered by one of us (Honble Mr. Justice Devi Prasad Singh), does not seem to have any impact on the Office of Legal Remembrance of the State of U.P. It shall be appropriate to reproduce the observations (sub-para (20) of para 248) made by this Court in U.P. Shaskiya Adhivakta Kalyan Samitis case (supra), to quote:-

(20) Role of Legal Remembrancer and associate judicial officer while working in the government is to tender independent, correct and lawful advice without being influenced by the politicians and bureaucrats, to maintain rule of law. Within the government, they are separate class having only advisory role. But it is a matter of deep concern that the office of Legal Remembrancer is working like a subordinate government department, seems to lose its flavour and identity, hence requires immediate attention by Honble Chief Justice.

3. Under such scenario, as usual, we have been again confronted with the dispute and the procedure adopted by the Government while considering the renewal and appointment of DGCs in compliance of earlier judgments (supra). It is unfortunate that members of subordinate judiciary, the day they join the Office of Legal Remembrancer, change their attitude and start to function like Government employee ordinary, without adhering to the rules and law and realizing their duty to work as advisory body for the Government with firmness. Writ Petition No. 9127 (M/B) of 2012 is taken up as the leading writ petition with the consent of parties counsel.

(I) FACTS

4. It is not necessary to consider in detail the procedure prescribed for appointment of DGC on criminal and civil side which has been discussed in earlier judgments (supra). However, we set out in brief the statutory and factual position.

5. There is no dispute that under LR Manual, it has been made mandatory to consult with District Judge and the District Magistrate while making appointment of District Government Counsel. LR Manual was amended by the Government order dated 13.8.2008 whereby, the provisions contained in para 7.03, 7.02, 7.08, 8.02, 8.04, 8.05, 8.06, and certain other provisions were amended appropriately in such manner so that the consultation with the District Judge or District Magistrate may not be necessary. The amendment done by the Government order and the appointment made under such amended provisions was set aside by the Division Bench of this Court of which one of us (Honble Mr. Justice Devi Prasad Singh the author of the Judgment), by the judgment and order dated 6.1.2012 in Writ Petition No. 7851 (M/B) of 2008: U.P. Shaskiya Adhivakta Kalyan Samiti Vs. State of U.P., with other connected writ petitions, (reported in 964673--> . The operative portion of the said judgment, is reproduced as under:-

"247. It is also settled law that in absence of statutory rules, the government may fill up the vacuum by executive instructions. The executive instruction is available in the form of L.R. Manual and the procedure prescribed therein shall be binding on the government while exercising its discretion.

(XVI) FINDING

248. In view of above, we summarise our finding as under:

(1) As discussed and held, the Government exceeded jurisdiction by amending the L.R. Manual contrary to the mandate of Shailendra Kumar Ojhas case (supra) against which the Special Leave Petition has been disposed of by Honble Supreme Court by speaking order (supra). Once an issue has been decided finally by this Court with regard to consultation with the District Judge, affirmed by Honble Supreme Court, then it was not open for the State to issue the impugned Government Order contrary to the mandamus issued by this Court in Virendra Pal Singh Ranas case (supra), followed by Shailenra Kumar Ojhas case (supra). It is unfortunate on the part of the State Government and the office of the Legal Remembrancer that they have not apprised Honble Supreme Court during hearing in subsequent cases with regard to finality of issue by the judgment of this Court affirmed by Honble Supreme Court.

A plain reading of the order passed by Honble Supreme Court while disposing of the Special Leave to Appeal (Civil) No. (s). 14728 of 2004 State of U.P. and others versus Shailendra Kumar Ojha and others reveals that their Lordships of Honble Supreme Court had agreed that the judgment delivered by the High Court was in conformity with Johri Mals case (supra) and it shall be obligatory on the part of the State Government and all its authorities concerned to act accordingly. Thus, the mandamus issued by Honble Supreme Court has also flagrantly been violated by the State of U.P. by concealing the same in subsequent proceedings. Virtually, the State of U.P. has committed contempt of Honble Supreme Court by not complying with the direction in the case of Shailendra Kumar Ojha (supra), in which the judgment of this Court shall be deemed to merge under the doctrine of merger. Till judgment in the case of Virendra Pal Singh and Shailendra Kumar Ojha (supra) survives, it is not lawful for the government to pass the impugned order contrary to the judgment.

(2) So far as the choice of the State Government is concerned to appoint a counsel, under the amended or unamended L.R. Manual, the final authority vests in the State Government. The government can reject any recommendation sent by the District Judge and District Magistrate after assigning reason. Otherwise also, under Section 24(8) of the CrPC, the State Government possess power to appoint special counsel in any case at any stage right from the Subordinate Court to High Court and Supreme Court. Special counsels are different class in themselves. The Parliament keeping in view the report of the Law Commission has created separate category of lawyers termed as special counsel and with regard to such appointment, it is not necessary for the State Government to obtain any concurrence from any one. In a recent judgment reported in State of U.P. and Others Vs. Hirendra Pal Singh etc., , their Lordships of Honble Supreme Court have reiterated the necessity to obtain the opinion from the District Judge (para 20). The case has been decided by a Bench of three Judges of Honble Supreme Court. Their Lordships further opined to decide the present controversy after taking into account the earlier judgments starting from Srilekha Vidyarthi (supra) which has been done while adjudicating the present controversy.

(3) The statutory provision and the related law as it stood was considered by a Division Bench of this Court in the case of Virendra Pal Singh Rana(supra) and a mandamus was issued to give more strength to the District Judge in consultation process with regard to appointment. The Special Leave Petition filed in the Supreme Court was dismissed, hence the judgment attained finality. Instead of complying with the mandamus, issued by this Court, by the impugned Government Order, the provision with regard to consultation with the District Judge has been deleted. Thus, the impugned Government Order amounts to overrule the judgment of this Court in the case of Virendra Pal Singh Rana as well as Johri Mal (supra), hence suffers from vice of arbitrariness. The government lacks jurisdiction to overrule the judgment of constitutional court by executive order (supra).

(4) Right from Srilekha Vidyarthi (supra), Johri Mal and Hirendra Pal Singh (supra), it has been consistent view of Honble Supreme Court that the consultation with District Judge in the matter of appointment of District Government Counsel is not only necessary but "must". The impugned government Order is violative of the judgments of Honble Supreme Court and this Court. Hence, not sustainable.

(5) In view of the provisions contained in Para 7.03 of L.R. Manual which is still in operation, even if the impugned amendment read with the judgment of Honble Supreme Court in the case reported in Harpal Singh Chauhan and others Vs. State of U.P., , Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, and a Division Benchs judgment of this Court reported in Shailendra Kumar Ojha and Others Vs. State of U.P. and Others, , it is not lawful for the government to make fresh appointment without considering the serving incumbents for renewal on the post of District Government Counsel or Addl. District Government Counsel. The government is the final authority to make a fresh appointment or renew the services of serving incumbent but fresh appointment can be done only after considering and rejecting the case of serving government counsels for renewal.

(6) After insertion of Section 25- A by Act No. 25/05, given effect from 23.6.2006, the government was incompetent to pass the impugned order which seems to be repugnant to the letter and spirit of Section 25- A by which the Parliament intends to create an independent Directorate of Prosecution, headed by the Director of Prosecution appointed with the concurrence of the Chief Justice of the High Court.

(7) Enforcement of Section 25- A may not be possible along with impugned Government Order as both cannot stand together. Under Art. 254, the State cannot legislate law or issue an order which is inconsistent to central law legislated by Parliament. Section 25- A as well as the impugned Government Order cannot stand together while establishing the prosecution branch in the State of U.P. keeping in view the letter and spirit of Section 25-A of the CrPC. Even special counsel appointed under Section 24(8) has been brought under the control of Directorate of Prosecution. Executive lacks jurisdiction to override the judgment of High Court and Honble Supreme Court by executive instruction. Hence, the impugned Government Order suffers from vice of arbitrariness.

(8) Role of Public Prosecutor as settled by Honble Supreme Court by catena of judgments is like an independent umpire. Hence, the government does not possess exclusive right to fill up the vacancies and that too, without consultation with the District Judge. The committed Prosecutor as well as the committed judiciary both are anti-thesis to rule of law and subservient to democratic process (supra).

(9) The Public Prosecutor cannot be compared with the office of Advocate General, Solicitor General or Attorney General or other constitutional posts. The government has ample power to appoint special counsel under Section 24(8) of CrPC in any case at any time but when the question cropped up with regard to appointment of District Government Counsel who works as officer of the Court, then being a statutory post, the opinion of the District Judge is must.

(10) By the impugned Government Order, the appointment of District Government Counsel (Revenue) cannot be regulated where under the U.P. Z.A.L.R. Act and the rules framed thereunder, it is statutory compulsion to obtain the opinion of the District Judge while making appointment on revenue side (supra).

(11) The post of District Government Counsel (Criminal) is a statutory post under Section 24, read with Section 25-A of the CrPC. Hence, it shall be obligatory on the part of the government to discharge its obligation in a just and fair manner with due consultation of the District Judge in view of settled proposition of law.

(12) The Division Benchs judgment of this Court and Honble Supreme Court are binding and the government could not have issued the impugned Government Order without taking into account the different pronouncements of the Supreme Court. Reliance on only part of the judgment without considering the entire judgment along with other related judgments does not permit the government to exercise its power arbitrarily. In view of the undertaking/submission given before Honble Supreme Court in the case of Johri Mal (supra), the government could not have issued the impugned Government Order without approaching the Supreme Court for modification of the observation made in the judgment. The statements given before the Court are binding for the succeeding government. Inviting application from the lawyers within five hours of notice or within two or three days (supra) is violative of existing amended provisions of L.R. Manual and are example of blatant abuse of power by the State Government with active support of the office of the Principal Secretary (Law)/Legal Remembrancer of the State of U.P. Legal Remembrancer has failed to tender correct advice and with firmness.

(13) By order dated 13.9.2011, we have directed the Principal Secretary, Law to file an affidavit with regard to appointment of advocates having criminal antecedents in districts Jhansi, Mathura and Mau but no affidavit was filed by the Principal Secretary, Law. Hence, an inference may be drawn that the persons having criminal antecedent have been appointed in the State of U.P. for political compulsion or for other extraneous reasons but without proper verification from the District Magistrate concerned.

(14) No person having criminal antecedent or against whom a First Information Report has been lodged involving moral turpitude and pending trial on account of lodging of First Information Report can be appointed as District government Counsel or Addl. District Government Counsel on criminal or civil side. They should be removed immediately after serving show cause notice and inviting the response.

(15) The District Government Counsels could not be removed even under existing amended L.R. Manual without considering their case for renewal.

(16) Even if the impugned amendment is given effect, on account of the provisions contained in Chapter XXI of the L.R. Manual, it shall be obligatory on the part of the State Government to obtain opinion of the District Judge who maintain the records of annual entry with regard to District Government Counsel and Addl. District Government Counsel working in the district.

(17) Since the government has removed some of the petitioners (supra) arbitrarily inviting applications in five hours or in a day, two and it is an incident of abuse of power causing mental pain and agony and indulging into litigation, hence the respective government counsels are entitled for exemplary cost.

(18) Reduction of age of superannuation does not suffer from any impropriety and illegality, hence call for no interference.

(19) Since under L.R. Manual, applications are invited from the advocates practising in adjoining districts under para 7.03(2) of L.R. Manual, no appointment can be made by pasting notice on Notice Board. In any case, every vacancy should be filled up inviting application by publication in newspaper providing reasonable period, say minimum fifteen days to submit application.

(20) Role of Legal Remembrancer and associate judicial officer while working in the government is to tender independent, correct and lawful advice without being influenced by the politicians and bureaucrats, to maintain rule of law. Within the government, they are separate class having only advisory role. But it is a matter of deep concern that the office of Legal Remembrancer is working like a subordinate government department, seems to lose its flavour and identity, hence requires immediate attention by Honble Chief Justice."

6. Apart from the above, the State Government by U.P. Amendment under Act No. 18 of 1991, amended Section 24 of CrPC and deleted the statutory provisions whereby consultation with District Judge was made mandatory in the Code of Criminal Procedure.

7. Writ Petition No. 7825 (M/B) of 2011: Shadhna Sharma. Vs. State of U.P. and others, dated 11.1.2012 (supra) was allowed by the Division Bench of this Court (Judgment delivered by one of us Honble Mr. Justice Devi Prasad Singh), and amendment made by the State of U.P., was declared to be ultra vires to the statutory provisions. The findings recorded in the case of Sadhna Sharma (supra) by the Division Bench is reproduced as under:-

"195. Subject to discussion and finding recorded hereinabove in the preceding paragraphs, the impugned amendment seems to be ultra vires and not sustainable and we sum up the finding as under:

(1) There is no strict separation of power under the Indian Constitution. Accordingly, the consultation of the district Judge, as ruled by Honble Supreme Court (supra), seems to not suffer for want of jurisdiction or authority under the principle of "Separation of Power".

(2) The post of the District Government Counsel cannot be compared with the post of Advocate General/Attorney General and other constitutional posts. The post of the District Government Counsel is the statutory post and keeping in view the observations of Honble Supreme Court in the case of Zahira Habibulla (supra), read with Section 25-A of CrPC, the impugned amendment in case sustained, shall subversive to the Administration of justice.

(3) The special counsel is different class than the District Government Counsel appointed under sub-section (4), (5) and (6) of Section 24 of Code of Criminal Procedure. Thus, so far as the supervisory or statutory control is concerned by inserting Section 25-A, Parliament removed the difference between the counsel appointed on the recommendation of the District Judge and District Magistrate and a special counsel appointed by the Government straight way in a particular case. Accordingly, in case impugned amendment is sustained, then it shall be in derogation of letter and spirit of Section 25-A of CrPC and shall be repugnant to Central Act in view of proviso to Clause (2) of Article 254 of the Constitution. Both cannot stand together.

(4) While amending the, the State Government has not taken into account the reports of different Law Commissions hence impugned amendment suffers from non-application of mind.

(5) Aims and objects are based on unfounded facts. Hence also, the impugned amendment is against the settled proposition of law and is an instance of arbitrary exercise of power, hence hit by Article 14 of the Constitution.

(6) The impugned amendment is contrary to the object and scheme of the Code of Criminal Procedure, 1973. Hence also, it suffers from vice of arbitrariness.

(7) The impugned amendment is hit by the proviso of Clause (2) of Article 254 of the Constitution of India and repugnant to Section 25-A of CrPC. Both cannot stand together inasmuch as, following one, will make the other ineffective.

(8) The purpose of Section 25-A of CrPC is to make prosecuting branch independent from the Government to optimum level. That is why even Special Counsel appointed under sub-section (8) of Section 24 has been placed under the Directorate of Prosecution.

(9) The impugned amendment is also not sustainable being enacted without taking into account the judgment of Honble Supreme Court in the case of Km. Shrilekha Vidyarthi (supra) which was necessary in the light of the law laid down by Honble Supreme Court in the case of P. Venugopal Vs. Union of India (UOI), .

(10) Reliance placed by the Government on the report of an Additional District Sessions Judge ignoring the report of two other Additional District & Sessions Judges seems to be exceeding of jurisdiction. While rejecting the renewal, opinion should have been obtained from the District Judge, and no reliance could have been placed on report of Additional District & Sessions Judge who is incompetent under the L.R. Manual. Rejection of application of renewal suffers from vice of arbitrariness.

(11) Impugned Government order amending L.R. Manual suffers from vice of arbitrariness as held while deciding W.P. No. 7851 (M/B) of 2008 and connected petitions decided by the judgment and order dated 6.1.2012, requires no fresh adjudication.

(12) The entire object and reason of the amending Act is based on unfounded grounds having no nexus with the object sought to be achieved. Hence suffers from unreasonableness and is irrational hence hit by Article 14 of the Constitution of India."

8. After the aforesaid two judgments of this Court, another bunch of writ petitions was decided by the judgment and order dated 21.1.2012, in leading Writ Petition No. 8246 (M/B) of 2011: Bishan Pal Saxena. Vs. State of U.P. and others. While deciding the bunch of writ petitions in leading writ petition of Bishan Pal Saxena (supra), the Division Bench of this Court has observed as under:-

"In view of the judgment of Sadhana Sharma (supra), it became mandatory on the part of the State to seek opinion of the District Judge of the respective districts while making appointment on the post of Additional District Government Counsel, Assistant District Government Counsel, Panel Lawyers and Sub District Government Counsel.

It has been observed in the judgment of Sadhna Sharma (supra) that once the provision has been declared ultra vires and unconstitutional, the old provision has been revived and the amended provision shall be deemed to be non-existing on the statute book.

While raising preliminary objection, Sri Raghvendra Kumar Singh, learned Sr. Advocate appearing on behalf of the State submitted that the old provision will not be revived and his further submission is that certain arguments have not been considered. We are not inclined to permit for de novo hearing of the same issue more so when the controversy in question has been settled at rest by the aforesaid two judgments of this Court. Since the amended L.R. Manual and U.P. amendment in Cr.P.C. has been struck down (supra), the selection and appointment done become illegal & void. However, to meet the exigencies of services appointment done under the amended L.R. Manual may be permitted to continue for reasonable period, permitting the State Government, to re-consider the renewal & appointments in the light of judgments of this Court (supra).

Accordingly, we dispose of this bunch of writ petitions with the following directions:

(1) Let the State of U.P. re-consider the selection and appointment on the post of Additional District Government Counsel, Assistant District Government Counsel, Panel Lawyers and Sub District Government Counsel in the light of the aforesaid two judgments passed by the Division Bench of this Court afresh, expeditiously, say within a period of four months from today.

(2) The persons appointed in pursuance to old provision shall continue for the period of four months or till re-consideration of their cases in the light of the aforesaid two judgment passed by the Division Bench (supra), whichever is earlier.

(3) No fresh appointments shall be done henceforth except in accordance to law settled by aforesaid two judgments (supra). In case some of the petitioners are still holding the post then they shall continue on their respective post till the State Government considers afresh with regard to their renewal of appointment with due opportunity to the serving incumbents in the light of judgments of this Court (supra).

The writ petitions are disposed of accordingly."

9. Appeals were filed against the aforesaid judgments of this Court in the Honble Supreme Court by the respondents as well as others. Honble Supreme Court by the judgment and order dated 17.7.2012, passed in Special Leave Petition (Civil) Nos. 4042-4043 of 2012 (State of U.P. & Ors. Vs. Sadhana Sharma), upheld the judgment of Sadhna Sharma as well as U.P. Shaskiya Adhivakta Kalyan Samiti (supra) and directed to implement the judgment in its letter and spirit. It shall be appropriate to reproduced the judgment and order dated 17.7.2012 decided by Honble Supreme Court, preferred against the aforesaid judgments of the Division Bench of this Court, which is as under:-

[Special Leave Petition (Civil) Nos. 4042-4043 of 2012 (State of U.P. & Ors. Vs. Sadhana Sharma)]

"We may notice that the primary contention raised before us is not with regard to the constitutional validity or otherwise of the amended provisions of the Criminal Procedure Code but the contention is that the State Government despite its policy decision is not implementing the judgment of the High Court in its true spirit and substance. To substantiate such a plea, the argument is that the High Court had specifically directed in Clause (15) in para 248 as well as Clauses (2) & (4) in para 253 (operative part of the judgment) that the cases of the persons in position should be reconsidered in accordance with the provisions contained in the L.R. Manual as well as that the District Government Counsel could not be removed even under existing L.R. Manual without considering their case for renewal.

To the contra, the argument raised before the High Court is that this clause is applicable only to that class of persons and not to the private respondents before the High Courts and appellants herein.

Since there is unanimity of the view that the judgment of the High Court is required to be implemented in true spirit and substance, we consider it necessary to issue certain clarifications with regard to the judgment in question and despite the fact that the State Government has chosen to withdraw the Special Leave Petition against the judgment and has taken a policy decision to implement the same. The directions are:-

(1) In terms of the above referred clauses of the judgment of the High Court, the vacancies which have already been filled in accordance with Section 24 of the Criminal Procedure Code and certain provisions of the L.R. Manual and unamended provisions of the Criminal Procedure Code. To be more specific, i.e., the appointments which have been made in consultation with the High Court and/or the District and Sessions Judge of the respective district and who continue to function in the respective posts shall not be disturbed.

(2) Against the existing vacancies the cases of all the appellants herein, who are in service or are out of service as well as any of the petitioners before the High Courts, whose services were terminated at any point of time including the persons who had filed writ petitions in the High Court during the pendency of the writ petition and/or the present civil appeals shall be considered for renewal/reconsideration in accordance with the judgment of this Court within a period of three months from today.

(3) For implementation of these directions the Secretary, Department of Law and Justice, State Government, shall be personally responsible and should complete the exercise within the stipulated period to ensure that required number of public prosecutors are present in the Courts for expeditious disposal of cases.

The renewal/reconsideration/appointment shall be done by the concerned authority in the above manner. We would clarify that all the appointments either directly or by way of renewal/reconsideration shall only be made in consultation with the High Court and/or the District and Sessions Judges as the case may be. All concerned shall duly abide, and without default, with the process of selection and appointment, as afore-stated."

10. Subject to aforesaid backdrop, present bunch of writ petitions, have been filed challenging the commission and omission on the part of the State Government with regard to appointment and renewal of District Government Counsel.

11. While assailing the impugned orders, Sri J.N. Mathur, learned Senior Advocate appearing for the petitioners broadly submits that petitioners renewal has been rejected arbitrarily under the teeth of aforesaid judgment of this Court and Honble Supreme Court. Learned counsel submits that some of the petitioners were appointed at the time when the amended Code of Criminal Procedure/L.R. Manuals were in operation hence it was not required to obtain opinion of District Judge and District Magistrate. It is submitted that even after declaration of Section 24 as ultra vires to the, the appointment will not become illegal and void. Only after considering the renewal in accordance with Rules, fresh appointment could be done. It is submitted by the learned counsel that Honble Supreme Court has preserved the right of the petitioners to be considered for the renewal. It is also submitted that State has not applied same yardstick while considering the renewal of Government Counsel. Some of them for political reason, have been renewed under the same facts and circumstances and others have been refused for political reasons. Submission is that State Government was pre-decided to cancel the majority of Government Counsel who were appointed during the period when amended provision was in operation. It is submitted that equals cannot be treated unequally and the Government Counsel should have been considered for renewal with same yardstick. It is also submitted that total 794 Government Counsel were appointed without recommendation and majority of them have not been renewed on unfounded ground and on the other hand, substantial number of similarly situated persons have been renewed and appointed (under alike circumstances). Submission is that Government was pre-decided to remove the petitioners.

12. On the other hand, Sri Vijai Bahadur Singh, learned Advocate General assisted by Smt. Bulbul Godiyal learned Additional Advocate General submits that there are 571 sanctioned posts of Government Counsel in the State of U.P. Against which, 871 persons were appointed. Accordingly, it is not possible to renew the term of all of them. Learned Advocate General submits that only 96 Government Counsel were appointed in accordance with Rules and other persons whose appointment was declined, was de hors the Rules. It is also submitted that since the amendment done in Section 24 of CrPC, has been declared ultra vires, the Government Counsel appointed during the period when the amended CrPC and LR Manual were in operation, have no right to claim renewal for fresh appointment.

It is also submitted that objective assessment of the petitioners work has not been done by the respective District Judges and District Magistrates hence also, Government has rightly rejected their renewal.

13. Learned Advocate General apart from relying upon the number of decisions of Honble Supreme Court and this Court, also referred recent judgment reported in State of U.P. and Others Vs. Ajay Kumar Sharma and Another, . He also referred three judgments of this Court out of which, in one case, the Division Bench allowed the writ petition on the ground that while considering the renewal, it is not open for the State Government to reject the renewal on the ground that success rate in the cases is not upto the mark.

14. Writ-C No. 46350 of 2014: Ram Charan Singh Prajapati. Vs. State of U.P. and others, has been dismissed by a Division Bench of this Court at Allahabad with the finding that Advocates who had been appointed de hors the statutory provisions i.e. without consultation with the District and Sessions Judge as required under Section 24 of the Criminal Procedure Code would be entitled for consideration of the renewal of their term as Government Advocate. It shall amount to perpetuate illegality.

Writ-C No. -30981 of 2014 at Allahabad: Rajendra Prasad Sharma Vs. State Of U.P. and 4 others, has been allowed by the Division Bench of this Court at Allahabad. The Division Bench while considering the argument with regard to recommendation under para 7.08 (3) of L.R. Manual, opined that in case any recommendation is not in a required format a fresh report should have been called from the District Judge strictly in accordance with L.R. Manual. It has further been held that a person who appeared on behalf of State, owes duty to the cause of administration of justice and is not appointed to secure a conviction in criminal trial at all cost sacrificing the norms of fairness, transparency and proper conduct of a criminal trial. The counsel owes a duty to the administration of justice which is far higher than the narrow purpose of securing conviction in a criminal trial.

WRIT-C No. -39935 of 2014 at Allahabad: Guru Prasad Vs. State of U.P. & 2 others, was preferred with regard to non-renewal of the terms of Government Counsel. The writ petition has been dismissed with the finding that renewal or extension of District Government Counsel is subject to integrity beyond doubt apart from the success ratio. It has further been held that while initial appointment was itself void, the rejection or renewal does not suffer illegality. It has been held that since the District Judge was not consulted which is mandatory requirement under the provisions of amended L.R. Manual, the Government has rightly rejected the renewal and taken a decision not to renew a void ab initio appointment made contrary to law.

15. While coming to factual material on record, it shall be appropriate to note that opinion of the District Judge is forwarded to the State Government in prescribed Form-9 of U.P. L.R. Manual which is reproduced as under:-

16. While considering the renewal, the Government does not seem to have acted with uniformity in the Office memo dated 28.5.2014 whereby the Government declined to renew the tenure of District Government Counsel of district Unnao and rejected the cases of persons who possess 100% success rate but the same time, renewed the tenure with regard to some of the Government Counsel whose success rate was very low. For convenience, Office memo dated 28.5.2014 by which renewal has been rejected of district Unnao, is reproduced as under:-

In the premise aforesaid, the appeal is allowed and the impugned order is set aside. The State Government shall now fill up the existing vacant posts by considering the cases of all eligible persons strictly in accordance with the relevant provisions of LR Manual read with Section 24 Cr.P.C. and the judgments of this Court in Johri Mals case and Rakesh Kumar Kesharis case. The District Judges and the District Magistrates, who are required to be consulted by the State Government, are expected to make objective assessment of the work, conduct and performance of the candidates and make recommendations keeping in view larger public interest in contradistinction to the interest of the particular political party.

The cases of renewal of appointment of the existing incumbent shall likewise be considered in accordance with the provisions contained in LR Manual and the judgments of this Court. This exercise shall be undertaken and completed within a period of four months from today."

17. It has not been disputed that District Judge has recommended for renewal of the candidates of the aforesaid district Unnao. Similarly, with regard to Government Counsel of district Hamirpur, the District Judge has sent his recommendation vide letter dated 3.4.20014. The operative portion of the recommendation of District Judge, Hamirpur, is reproduced as under:-

Similar is the position with regard to other districts while considering the renewal.

18. In spite of the fact that the District Judge has recommended for renewal of all the incumbents, the Government has rejected the renewal with regard to some persons and for others, it has been allowed. For convenience, Office memo dated 29.5.2014 is reproduced as under:-

In the premise aforesaid, the appeal is allowed and the impugned order is set aside. The State Government shall now fill up the existing vacant posts by considering the cases of all eligible persons strictly in accordance with the relevant provisions of LR Manual read with Section 24 Cr.P.C. and the judgments of this Court in Johri Mals case and Rakesh Kumar Kesharis case. The District Judges and the District Magistrates, who are required to be consulted by the State Government, are expected to make objective assessment of the work, conduct and performance of the candidates and make recommendations keeping in view larger public interest in contradistinction to the interest of the particular political party.

The cases of renewal of appointment of the existing incumbent shall likewise be considered in accordance with the provisions contained in LR Manual and the judgments of this Court. This exercise shall be undertaken and completed within a period of four months from today."

19. On the other hand, in one another case the perusal of the report of the District Magistrate dated 8.10.2012, of district Faizabad shows that out of 16, he has recommended for renewal of 9 Government Counsels and for the rest, recommended for rejection of their renewal. Those whose cases were recommended for renewal are, Sri Virbali, Sri Ajit Pratap Singh, Sri Dhruvjit Verma, Sri Tilkuram, Sri Ravi Shanker, Sri Chandra Prakash Dubey, Sri babu Lal Verma and Sri Aftab Ahmad, were appointed in the same manner and during the same period like others, success rate of Sri Ajit Pratap Singh is only 12.5%. Similarly, with regard to others in whose favour renewal has been recommended, the success rate seems to be at lower level being no description has been given in pursuance of recommendation of District Magistrate. Appointments were done of all above 9 persons which is on record. The recommendation dated 8.10.2012, the report dated 8.10.2012, and one such appointment letter of Sri Ajit Pratap Singh, are reproduced as under:-

Letter with regard to renewal of Sri Ajit Pratap Singh, Asstt. District Government Counsel (Criminal is as under:

Record shows that similar is the position in the some other districts where the Government has adopted picked and chose policy while considering the renewal.

20. Learned counsel for the petitioners submitted that in some cases. recommendation of District President of the Ruling Party is on record pointing out that appointments on the post have not been done on merit but for political consideration.

21. It may be noted that in the case of Ajai Kumar Sharma as well as Yogesh Sharan Tripathi and similarly in other cases also, there has been recommendation of the District Judges for their renewal but they have not been renewed on the ground that objective satisfaction has not been recorded by the District Judge.

22. During the course of hearing, we have summoned the records and while perusing record on 16.9.2014, we found that records are not maintained by the Office of Legal Remembrancer though, specific directions have already been given in para 195 of other judgment rendered in 964673--> . Relevant portion of para 195 of the judgment in U.P. Shaskiya Adhivakta Kalyan Samiti (supra) is reproduced as under:-

"195. The Principal Secretary, Law appeared on 16.9.2011 in compliance of the order passed by this Court. The records produced before the Court were not complete and the papers contained in the paper book were not in seriatim and kept in utter disregard of Secretariat Manual. Keeping the papers unsystematically always give liberty to the office to change the same or replace by other papers. Relevant portion from the order dated 16.9.2011 is reproduced as under:

"1. Principal Secretary (Law) Sri K.K. Sharma is present in person in pursuance to the order passed by this Court. He has seen the notice dated 28.04.2011, filed as Annexure no. 2 to the writ petition. On query made by the Court, he submitted that no instruction was issued by him or his office to District Magistrate Gautambudh Nagar to send the list of penal of lawyers on the same day i.e. 20.04.2011. He admits that notice dated 17.04.2011 directing the District Magistrates all over the State to send the panel of lawyers for appointment on the post of District Government Counsels, was sent by his Office. The notice was circulated all over the State. The notice does not provide any specific period to forward the panel of lawyers.

2. Sri K.K. Sharma, Principal Secretary (Law) has produced the compilation of Rules regulating the working of Secretariat under the title "Secretariat Manual". Rules 124, 125, 126 deals with the maintenance of records. Rules 127, 128, 129 deals with the note sheet, which are reproduced as under:-

3. Apart from above Rules, Rule, 131, 132, other provisions contained in the manual regulates the functioning of Secretariat office.

4. Record produced before the Court has been shown to the Principal Secretary (Law) who admits that record is not in conformity with the Rules. The purpose of Rule is to ensure that records are kept in proper manner and it may not be manipulated for any reason whatsoever. The record produced before the Court has not been numbered along with note sheet, as provided in the manual. Though, it admittedly, contains the signature of Principal Secretary (Law) at some places along with Brijesh Kumar, Special Secretary on some of the typed note sheets containing remarks.

5. Note-sheet has not been maintained separately. However, it does not contain any direction to District Magistrate to send the panel list on the same day. It shall be relevant to mention that old file of Gautambuddh Nagar seems to contain serial number and note sheet separately to some extent.

6. Principal Secretary (Law) has read the office record and informed the Court that in the office record, the case of Narendra Kumar Singh has been rejected on the ground that it is not necessary to give reason and Government has got power to refuse the renewal without indicating the reason.

7. From the record of the Office, the Principal Secretary (Law), placed before this Court, the proceedings taken with regard to appointment and renewal of District Gautambudh Nagar, is reproduced as under:--.........

8. Attention of Principal Secretary (Law) has been invited to the letters of District Magistrate, dated 23.2.2003 Annexure No. 4, letter dated 30.10.2006 Annexure No. 5, letter dated 28.5.2007, Annexure No. 6 and letter dated 2.7.2009 Annexure No. 7, followed by the last letter dated 14.1.2011.

9. So far as the letter dated 14.1.2011 of the District Magistrate is concerned, in pursuance of the report of the District Magistrate dated 21.4.2011, fresh appointment has been made and the case of the petitioner has been rejected by the order dated 28.4.2011. From the record, it does not transpire as to how once the District Magistrate found the petitioner fit for renewal while sending letter dated 14.1.2011, only after a week, the petitioner became unfit, and renewal was refused.........."

23. At the face of record, the Office of Principal Secretary Law is not discharging its obligation in accordance with Rules and blatantly violating the judgment of this Court. It may be inferred that the purpose of ill-maintaining the record is to change the seriatim and if necessary change the records also to meet out the query of the courts during the course of judicial review. Such action seems to be highly improper on the part of the office of legal Remembrance managed by members of the subordinate judiciary.

24. The other admitted facts which surface during the course of hearing is, no service record has been maintained of the District Government Counsel though para 7.09 of the L.R. Manual requires that service record shall be maintained. For convenience, para 7.09 of the L.R. Manual is reproduced as under:-

"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 practice. Similarly, the District Officer shall before recording such opinion obtain a report from the Superintendent of Police regarding the counsels 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."

25. One another feature which also came to light is that hundreds of appointments have been done without seeking opinion from the District Judge in pursuance of the provisions contained in para 7.10 of L.R. Manual. Para 7.10 permits the Government to appoint special counsel to meet out the immediate requirement but it has been used in a routine manner which also seems to be improper on the part of the Office of L.R. For convenience, para 7.10 is reproduced as under:-

"7.10. Officiating appointment in casual vacancies--When the District Government Counsel is unable to attend to his duties on account of his being away outside the district or the local area for which he has been appointed or due to other reasons, for a period of less than 15 days--

(i) in the case of District Government Counsel (Criminal) or (Civil), his work will ordinarily be looked after by the Additional/Assistant District Government Counsel, where one exists; otherwise it will be looked after by one of the panel lawyers designated by the District Officer;

(ii) in the case of District Government Counsel (Revenue), his work will be looked after by District Government Counsel (Civil) or another legal practitioner to be appointed by the District Officer, unless the court agrees to adjourn the cases for the requisite period:

Provided that where the absence of the District Government Counsel is likely to continue for a period exceeding 15 days, the fact shall be reported to the legal Remembrancer by the District Officer, and his prior approval for the proposed arrangement for the conduct of work in his absence shall be obtained:

Provided further that where the arrangement is made for the work of the District Government Counsel for a period exceeding than 15 days, the acting District Government Counsel will be entitled to the same fee as admissible to the District Government Counsel."

26. Not only para 7.08 which was amended by the Government, requires to seek opinion of the District Judge but Chapter XI of L.R. Manual also requires that opinion of the District Judge should be obtained as has been held while deciding the earlier writ petitions in the case of U.P. Shaskiya Adhivakta Kalyan Samiti (supra). The amendment done by the Government has been set aside by this Court, so it is obligatory on the part of the Government to seek opinion of the District Judge while making appointment of Government Counsel as recorded in the finding of the earlier writ petition (supra).

27. Ajay Kumar Sharma, the petitioner has come forward with specific pleading that Principal Secretary Law, Sri S.K. Pandey has forwarded recommendation for appointment on the post of Government Counsel while posted as District Judge, Sultanpur. But as Principal Secretary Law/Legal Remembrancer, himself has rejected the recommendation of the persons with regard to whom, he forwarded the recommendation for renewal. This fact seems to have not been denied. Such action on the part of Legal Remembrancer of the Government seems to be not sustainable and amounts to abuse of power for the reason that no one may be Judge for his own cause. How the recommendation for renewal becomes bad while taking decision as Principal Secretary Law, is not borne out from the record. The averments contained in Para 22-D of the writ petition is reproduced as under:-

"22-D. That while rejecting the renewal of the petitioners vide orders dated 29.05.2014 the opposite party no. 1 relied the judgment dated 12.01.2012 passed in Writ Petition No. 8426 (M/B) of 2011 although the same has to be considered along with the judgment dated 17.07.2012 passed by this Honble Court and the Government order dated 05.09.2012.

It is evident from the orders dated 29.05.2014 that the opposite party no. 1 while passing the orders dated 29.05.2014 failed to consider the Form No. 9 and opinions/recommendations pertaining to the petitioners in its true sprit and as such the orders passed by opposite party no. 1 arbitrary and mechanical and have not been passed by applying the judicial mind.

The entire action of the opposite party no. 1 is contrary to the law laid down by this Honble Court as well as the Honble Apex Court and thus is contemptuous.

It is further submitted that the reports/recommendations of the opposite party no. 2 and 3 are proper and as per Para 7.08 of L.R. Manual as the same are based on the reports of Presiding Officers and Form No. 9 and thus the same cannot be ignored on the grounds mentioned in the orders dated 29.05.2014 and if the reports were not proper or as per Para 7.08 of L.R. Manual, as stated in the orders impugned, then in that event the opposite party no. 1 ought to have called for fresh reports from the District Authorities and ought not have passed the orders dated 29.05.2014 keeping in view the principle that no one should be punished for no fault.

However, it is submitted that the recommendations/reports of District Authorities are just and proper and are not liable to be ignored in the manner the same have been ignored/rejected. Copy of the report dated 05.10.2012, mentioned in the order dated 29.05.2014, is already on record as Annexure No. 10 to the writ petition and copies of the reports/recommendations dated 03.04.2014 and 07.05.2014 of opposite parties no. 3 and 2 respectively are being filed herewith as Annexure No. 12 and the same are favourable and cannot be rejected/ignored in view of the law on the issued involved in the present case.

It is not out of place to state here that in the District Sultanpur the opposite party no. 1 (Sri S.K. Pandey, presently holding the post of legal Remembrancer) has given the similar report and now he is saying that the report is not proper. Copy of the similar report dated 05.10.2012 given by the Sri S.K. Pandey, who is presently holding the post of Legal Remembrancer, is being filed herewith as Annexure No. 13.

28. The petitioner Ajay Kumar Sharma has further specifically pleaded that one Ram Babu Prajapati has been appointed as Additional District Government counsel (Criminal) by the order dated 13.06.2014. The criminal history has been brought on record in the form of chart as Annexure No. 16 to the writ petition. The allegation with regard to criminal history has not been disputed by the respondent State hence the appointment seems to be not sustainable in view of earlier judgments of this Court (supra).

29. It has also been categorically pleaded that persons in different districts with lower merit have been renewed whereas, recommendation with regards to others, has been rejected on flimsy grounds. For convenience, para 22-E and 22-F of the writ petition are reproduced as under:-

"22-E. That it is pertinent to state here that in the orders dated 29.05.2014 has been specifically mentioned that petitioner(s) can apply against the vacant posts. However without advertising the posts after orders dated 29.05.2014, on which the petitioners were appointed, the opposite party no. 1 in violation of procedure prescribed in the L.R. Manual and law of the land appointed 8 persons vide order dated 06.06.2014. In addition it is submitted that in the case of the petitioners the opposite party no. 1 is saying that the opinions/recommendations are not objective and on the basis of the similar recommendations the opposite party no. 1 appointed 8 persons vide orders dated 06.06.2014. Copy of the earlier panel prepared by the opposite party no. 3 and the copy of the order dated 13.06.2014, passed on the basis of orders dated 06.06.2014, are being filed herewith as Annexure No. 14 and 15.

It is pertinent to state here that Sri Ram Babu Prajapati, whose name find place at serial no. 7 in the order dated 13.06.2014, is of criminal back ground and is having criminal history, as would appear from the document annexed herewith as Annexure No. 16 and even then he has been appointed on the post of ADGC (Civil).

It is also relevant to state here that in the aforesaid/earlier panel for the post of DGC Revenue the name of one Sri Avanish Kumar Srivas (SC) was recommended, whose name finds place at Serial No. 1, but the person at Serial No. 2 namely Sri Badri Prasad Prajapati (OBC) has been appointed in an arbitrary manner.

In addition to same, on the basis of information received, it is submitted that Sri Badri Prasad Prajapati is a member of Ruling Party and as such as per para 7.07 of L.R. Manual his appointment is not valid.

Entire action of the opposite party no. 1 itself speaks about non application of mind and arbitrariness of opposite party no. 1.

22-F. That it is pertinent to state here that in the case of the petitioners the opposite party no. 1 is saying that the opinions/recommendations are not objective and the appointment of the petitioners are void and on the other hand the opposite party No. 1 renewed the term of similarly situated persons on the basis of the similar recommendations and some of them are (i) Sri Ajeet Pratap Singh, success rate 12.5%, (District Faizabad) (ii) Sri Lav Singh, success rate 36.23%, (District Faizabad) (iii) Sri Sabir Naim Safbi, success rate not known to the petitioner, (District Faizabad) (iv) Sri Ravindra Kumar, success rate not known to the petitioner, (District Mathura), (v) Sri Kartar Singh, success rate not known to the petitioner, (District Mathura), (vi) Sri Ravindra Yadav, success rate not known to the petitioner, (District Gorakhpur), (vii) Ms. Fareeda, success rate not known to the petitioner, (District Gorakhpur), Smt. Soni Bee (District Bareilly) and Sri Suniti Kumar Pathak (District Bareilly). Entire action of the opposite party no. 1 itself speaks about non application of mind and arbitrariness of opposite party no. 1"

30. The averments contained in the aforesaid paragraphs of the writ petition, have not been categorically denied. Thus, equals seems to have been unequally treated by the respondent State by pick and choose method which seems to be not sustainable. State Government seems to have blatantly violated the earlier judgment of this Court (supra) while appointing persons of criminal background and also taking different view with regard to same set of persons while considering renewal of appointment.

31. On the one hand, the Government imputed the District Judges that satisfaction has not been objectively recorded hence large number of applications of renewal have been rejected with the observation that it is not justifiable to renew the incumbent for next term but on other hand with regard to some other, tenure has been renewed. Such action does not seem to be in tune with the earlier judgment which requires that reasons should be given while rejecting the case for renewal.

(II) MAINTAINABILITY OF WRIT PETITIONS

32. It has been vehemently argued by the learned Advocate General that in view of two Division Benchs judgments of this Court at Allahabad (supra), the writ petitions are not maintainable.

33. However, Mr. J.N. Mathur, Senior learned counsel appearing for some of the petitioners and other counsels submit that in view of another Division Benchs judgment of this Court at Lucknow as well as keeping in view the fact that earlier judgment of this Court (supra) and catena of judgments of Honble Supreme Court being not considered, judgments, rendered in the case of Ram Charan Singh Prajapati and Guru Prasad are per incuriam and liable to be ignored. It has been further submitted that the judgments rendered in the case of Ram Charan Singh Prajapati (supra) and Guru Prasad (supra) do not come in the way to decide the present bunch of writ petitions since the individual right of the petitioners with regard to renewal and appointment on the post of Government Counsel keeping in view objective assessment is in dispute. It is also submitted that the judgments delivered at Allahabad are judgment in personam and not in rem, hence also, does not come in the way to decide the present writ petitions keeping in view the pleading on record.

34. The individual right of the petitioners for renewal or appointment on the post of Government Counsel is based on individual objective assessment of the service, rendered by the respective petitioners in different districts. It is also submitted that the grounds pleaded while assailing the impugned orders in respective writ petitions are broadly different than the grounds considered by this Court at Allahabad.

It shall be appropriate that the Division Benchs judgments should be considered in brief.

35. In the case of Ram Charan Singh Prajapati, the Division Bench has not considered the earlier judgments and the finding recorded thereon of this Court in the case of U.P. Sahayak Adhivakta Kalyan Samiti (supra) as well as Sadhana Sharma (supra), followed by Bisanpal Saxena (supra) which has been affirmed by Honble Supreme Court in Special Appeal No. 4042-4043 of 2012 State of U.P. Versus Sadhana Sharma by judgment and order dated 17.7.2012. Thus, at the face of record, the judgment rendered by this Court in the case of Ram Charan Singh Prajapati is in ignorance of earlier judgment of this Court, affirmed by Honble Supreme Court (supra).

36. Position almost seems to be the same with regard to the Division Benchs judgment in the case of Guru Prasad (supra). In Guru Prasads case, the Division Bench has considered certain judgments which have been considered by the Division Bench of this Court in the case of U.P. Shashkiya Adhivakta Kalyan Samiti (supra), affirmed by Honble Supreme Court by judgment and order dated 17.7.2012.

37. It is not understandable as to why the State Government has not brought into the notice of Honble Judges the factum of the earlier judgment of this Court which has attained finality, being affirmed by Honble Supreme Court (supra).

38. Not only that the judgment and order dated 17.7.2012 of Honble Supreme Court was not produced before the Court by the State Government during hearing of the aforesaid two writ petitions but also one other judgment reported in State of U.P. and Others Vs. Ajay Kumar Sharma and Another, was not brought to the notice of Honble Judges.

39. Thus, both the Division Benchs judgments of this Court relied upon by the learned Advocate General had not taken note of the judgment and order dated 17.7.2012 (supra) and the judgment of Honble Supreme Court in the case of Ajai Kumar Sharma (supra). Both the judgments seem to be per incuriam to the law settled by Honble Supreme Court in these two judgments, hence liable to be ignored.

40. Apart from above, in a judgment reported in State of Orissa and Another Vs. Mamata Mohanty, , their Lordships of Supreme Court held that once the court comes to conclusion that a wrong order has been passed, it becomes solemn duty of the State to rectify the mistake rather than perpetuate it. To quote relevant portion:

"57. this principle also applies to judicial pronouncements. Once the court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the court to rectify the mistake rather than perpetuate the same. While dealing with a similar issue, this Court in Hotel Balaji and others, Vs. State of Andhra Pradesh and others, etc. etc., observed as under:

"12....2....To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v. Delameter at p. 18:

"a Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors..... "

41. In 2012(30) LCD 222 Sandeep alias Sandeep Mehrotra versus State of U.P. and others, a Division Bench of this Court (judgment delivered by one of us, namely, Honble Devi Prasad Singh, J) has considered concept of per incuriam as follows:

"37. Per incuriam means in ignorance of or without taking note of some statutory provisions or the constitutional mandate or the judgment of Honble Supreme Court or the larger Bench, vide; State of Bihar Vs. Kalika Kuer @ Kalika Singh and Others, State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another, , Mamleshwar Prasad and Another Vs. Kanhaiya Lal (Dead) through L. Rs., , Sunita Devi Vs. State of Bihar and Another, , 1999 (3) SCC 112 [LQ/SC/1999/69] ; Ram Gopal Baheti Vs. Giridharilal Soni and others, A.R. Antulay Vs. R.S. Nayak and Another, , Sarnam Singh and Another Vs. Dy. Director of Consolidation and Others, , State through S.P., New Delhi Vs. Ratan Lal Arora, .

38. In a case reported in A.R. Antulay Vs. R.S. Nayak and Another, , Honble Supreme Court with regard to applicability of doctrine of per incuriam held as under:

"44. It appears that when this Court gave the aforesaid directions on 16th February, 1984, for the disposal of the case against the appellant by the High Court, the directions were given oblivious of the relevant provisions of law and the decision in Anwar Ali Sarkars case (supra). See Halsburys Laws of England, 4th End, Vol. 26, page 297, para 578 and page 300, the relevant notes 8, 11 and 15; Dias on Jurisprudence, 5th Edn., pages 128 and 130; Young v. Bristol Aeroplane Co. Ltd. Also see the observations of Lord Goddard in Moore v. Hewitt-A and Penny v. Nicholas. "per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. See Morelle v. Wakeling. Also see State of Orissa and Others Vs. Titaghur Paper Mills Company Limited and Another, . We are of the opinion that in view of the clear provisions of Section 7(2) of the Criminal Law Amendment Act, 1952 and Articles 14 and 21 of the Constitution, these directions were legally wrong."

42. Of course, in case after considering the judgment of Honble Supreme Court, the aforesaid two Division Benches of this Court had recorded a finding on merit, then there was no occasion for this Court to interfere with the present dispute. Further, in the event of disagreement, there would have been no option for this Bench except to refer the matter to Larger Bench after framing question in accordance with rules of the court as held by two Full Benches of this Court reported in Tuples Educational Society and Sri Sandeep Sangu Vs. State of U.P. and Chaudhary Charan Singh University, and Ms. Ranjana Agnihotri and Others Vs. Union of India and Others, .

43. Apart from above, the third Division Benchs judgment of Rajendra Prasad Sharma (supra) presided by Honble Chief Justice after considering the individual case of the Government counsel has allowed it with a finding that while assessing the case on merit, the success rate of the Government counsel should not be the criteria. The Division Bench by judgment and order dated 2.7.2014 in Writ Petition No. 30981 of 2014 (Rajendra Prasad Sharma. Vs. State of U.P. and others), rightly held that the Government counsels are supposed to discharge their duty without being influenced by extraneous reasons and considerations and their appointment or renewal should be considered by the Government only on the basis of objective assessment of work, conduct and performance of the candidates keeping in view the larger public interest in contradiction of personal interest of individual political party vide judgment in Ajai Kumar Sharmas case (supra).

In view of above, these writ petitions seem to be maintainable and controversy may be adjudicated on merit on the basis of pleading on record.

(III) APPOINTMENT DONE BEYOND SANCTIONED STRENGTH

44. The argument of learned Advocate General is that total sanctioned strength of the District Government Counsel in the State of U.P. is 571 but 794 persons were engaged. However, a perusal of the impugned order reveals that in none of the cases the Government rejected the renewal on the ground that appointment of incumbent was beyond sanctioned strength. It has further been submitted that total 871 persons are working against the sanctioned strength of 571 which has been not refuted by the petitioners counsel.. There appears to be no room of doubt that renewal of none of the District Government Counsel was refused on the ground that it is beyond the sanctioned strength. The question now has cropped up as to how the appointment was made beyond sanctioned strength.

45. It is settle principle of law that every order must stand on its own leg and during the course of judicial review, the order may not be justified in case it suffers from illegality by affidavit, vide, Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, , the argument of the learned Advocate General seems to be not sustainable to defend the impugned order. But the facts remain that no person could have been appointed beyond sanctioned strength. The appointment done beyond sanctioned strength, shall be nullity in law.

46. In service jurisprudence, Honble Supreme Court has laid down principle of first come last go vide, Harjinder Singh Vs. Punjab State Warehousing Corporation, . We are of the view that this principle may be applied with and the first step the Government should take is, to remove all those persons who were appointed beyond sanctioned strength in respective districts by applying principles of first come last go. The persons appointed at later stage beyond sanctioned strength should be removed and those who were appointed and had been working or their litigations have been pending, should be retained and the renewal should be considered in accordance with Rules/earlier judgments of this Court and Honble Supreme Court. This exercise may be done by the Government before proceeding to consider for fresh appointment. However, the incumbents who are removed being appointed beyond sanctioned strength, will have right to apply for fresh engagement and their case be considered in accordance with Rules.

(IV) APPOINTMENT OF SPECIAL COUNSEL

47. Para 7.10 of L.R. Manual authorizes the Government to make special appointment to meet out the exigency of service. With regard to special appointment, it shall not be necessary to seek opinion from the District Judge. The purpose of para 7.10 is to meet out the immediate requirement of the district till regular appointment is done in accordance with Rules/L.R. Manual. Accordingly, those cases where appointments have been done under para 7.10 of the L.R. Manual, the incumbents shall not be entitled to be considered for renewal. However, they shall be entitled to apply for regular appointment while filling the vacancies in respective districts.

48. Section 24(8) of CrPC permits the Government to engage special counsel. For convenience, Section 24(8) of CrPC is reproduced as under:-

"24 Public Prosecutors--

xxx xxx xxx xxx

(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor:

Provided that the Court may permit the victim to engage an advocate of this choice to assist the prosecution under this subsection.

49. While deciding the case of U.P. Shaskiya Adhivakta Kalyan Samiti (supra), following observations have been made by the Division Bench of this Court with regard to appointment of special counsel under Section 24(8) of CrPC:-

"248 (9) The Public Prosecutor cannot be compared with the office of Advocate General, Solicitor General or Attorney General or other constitutional posts. The government has ample power to appoint special counsel under Section 24(8) of CrPC in any case at any time but when the question cropped up with regard to appointment of District Government Counsel who works as officer of the Court, then being a statutory post, the opinion of the District Judge is must."

However, the appointment done in pursuance of Section 24(8) of CrPC, shall be purely on temporarily basis for a particular case or to meet out the exigency of service for limited period hence lacks permanency.

(V) CASTES

50. Sri D.R. Mishra learned counsel appearing in some of the cases, vehemently argued that renewal has been done of large number of persons who were not working but in some cases renewal has been done and with regard to some cases in same circumstances, the renewal has not been done. It has also been submitted that weightage has been given by the Government to particular castes i.e., Y and M.

51. So far as allegations with regard to discriminatory treatment adopted by the Government is concerned, it does not seem to be justified where appointment has been done under the same circumstances and procedure and recommendation has been made by the District Judge, then Government should have imparted equal treatment instead of picking and choosing for extraneous or political considerations.

52. So far as allegation that the appointments have been done based on particular caste and community is concerned, the time has come when person of every caste, creed or religion residing in the country should be treated as "Indian" and named accordingly instead of calling or addressing with their respective castes, communities or religion. Now, it is time to build up nationalism for socioeconomic development of the country. Power conferred under Article 226 of the constitution of India is to scrutinize the decision making process and not the decision itself vide, Tata Cellular Vs. Union of India, .

53. Accordingly, we leave it open for some other cases to evolve some principle with regard to appointment done based on caste, creed or religion. We interfere with the impugned selection and appointment at the mandate of Article 14 where appointment has been done without assigning reason in pursuance of earlier judgments (supra) and also by imparting discriminatory treatment to the candidates who applied.

54. Sri D.K. Mishra, learned counsel appearing on behalf of the petitioners in Writ Petition No. 10306 (M/B) of 2012 (Rakesh Kumar Mishra and others. Vs. State of U.P., and others), has submitted that renewal has been done of some of the Government Counsel for political reasons though, they were not working and with regard to others, renewal has been refused. It is also submitted that in spite of order passed by Honble Supreme Court, 53 appointments have been done and weightage has been given to particular caste i.e., Yadav and Muslim. Learned counsel further submitted that the manner in which the Government order Office of Legal Remembrance is working, requires to be monitored by this Court.

(VI) OTHER GROUNDS

55. One of the important facts which seems to have been noted during the course of hearing by this Court is that with regard to districts Hamirpur, Etah, Bijnor, Siddharthnagar, Shahjahanpur. Kasganj, Sonbhadra, Shravasti, Lucknow, Kaushambhi, Badaun, Sitapur, Unnao, Meerut, Kushinagar, Lalitpur, Muzaffarnagar, Moradabad, Jhansi and Chandauli, appointments have been done without advertisement. On query made by this Court, on the basis of instructions received by Smt. Bulbul Godiyal, learned Additional Advocate General, present in Court, it has been submitted that appointments were done in pursuance of advertisement made in the year 2012. The factual position as recorded in the order dated 24.9.2014 by this Court, is reproduced as under:-

"Honble Devi Prasad Singh, J.

Honble Arvind Kumar Tripathi (II), J.

In compliance of earlier orders of this Court, records of several districts have been produced by the learned State Counsel, which have been perused.

By Office Memorandum dated 30th May 2014 issued separately with regard to Sarvashri Yogendra Kumar, Prem Shanker Verma, Brijendra Kumar and Ms. Meena Kumari, the renewal has been rejected on the ground that objective assessment has not been done by the District Judge, Kanpur Dehat, though they were appointed and were working in District Rae Bareli.

The record also shows that on 5th June 2014, in the Office Note duly signed by Sri S.K. Vishwakarma, Special Secretary and Ms. (Dr.) Nirupama Verma, Deputy Secretary, an endorsement has been made that in place of Janpad Kanpur, in the rejection order Janpad Rae Bareli should be read. Prima facie, the entry made in the record seems to be new one and made at a later period when attention of this Court towards discrepancies with regard to consideration of opinion of the District Judge, Kanpur Dehat instead of District Rae Bareli was invited during the course of hearing.

Similar is the position of District Bhadohi (Sant Ravi Das Nagar). Renewal of Sri Ashwani Kumar Misra, ADGC (Criminal) has been rejected relying upon the report of the District Judge, Bareilly though he is working at District Sant Ravi Das Nagar. The record contains clarification dated 6th June, 2014 with a statement that in place of District Bareilly, district Sant Ravi Das Nagar be read.

During the course of hearing, learned Additional Advocate General Ms. Bulbul Godial submits that 96 appointments of Additional District Government Counsel were done between 30th May 2014 to 14th June, 2014 in pursuance of the order passed by Honble the Supreme Court. It is further admitted by learned Additional Advocate General that the case of earlier appointees with regard to renewal against these 96 posts, was considered and rejected in between 27th May 2014 to 30th May 2014. Renewal rejected and appointments done in consequence thereof against 96 posts were in 20 districts, namely: Hamirpur, Etah, Bijnor, Siddharthnagar, Shahjahanpur. Kasganj, Sonbhadra, Shravasti, Lucknow, Kaushambhi, Badaun, Sitapur, Unnao, Meerut, Kushinagar, Lalitpur, Muzaffarnagar, Moradabad, Jhansi and Chandauli.

It is also submitted by learned Additional Advocate General on the basis of instructions received from Mr. Dharmendra Mishra, Section Officer in the office of Legal Remembrancer that all these appointments were done keeping in view the advertisement made in the year 2013 on different dates in the months of February & March, 2013.

Though the record of Sonbhadra has been produced before the Court, but it does not contain the records relating to appointment of Additional District Government Counsel (Criminal) Sri Ramjiwan Singh Yadav.

With regard to Mr. Babu Ram Yadav, the District Judge (Mr. R.P. Misra) vide letter dated 24th September 2012 opined that his work and conduct is good, but so far as the outcome of work is concerned, it relates to the Revenue Courts, hence it is not possible to give any opinion with regard to it. Report may be summoned from the Revenue Courts. The officiating District Magistrate relied upon the report of the District Judge and put a note that success rate is 91 per cent. The record does not seem to take note of letter dated 16th February 2013 sent to the Principal Secretary (Law) by the District Magistrate with recommendation for his removal.

The record further reveals that charges levelled against Mr. Shiv Poojan Singh have later on been found to be not correct; hence set aside.

After hearing learned counsel for the parties in this writ petition as well as connected matters, and learned counsel appearing for the State, judgment is reserved.

Order Date: -24.9.2014"

(VII) NATURE OF APPOINTMENT AND RIGHT OF RENEWAL

56. One of the arguments, advanced by learned Advocate General is that all those appointees whose appointments were done during the period when L.R. Manual as well as Section 24 were amended by the State Government depriving the District Judges and District Magistrates to give opinion being declared void have no right to claim renewal.

It shall be appropriate to consider the cases relied upon by learned counsels.

57. In Ghanshyam Rai Vs. State of U.P. and Others, , a Division Bench of this Court held that where appointment is done dehors the rules shall be void ab initio and does not clothe the appointee with any legal enforceable right.

58. In Branch Manager, M.P. State Agro Industries Development Corpn. Ltd. and Another Vs. Shri S.C. Pandey, , Honble Supreme Court held that the validity of appointment is pre-condition to consider for regularisation. If appointment is void being contrary to regulation, the procedural lacuna like estoppel, waiver and acquiescence shall not be applicable.

59. In M.P. Housing Board and Another Vs. Manoj Shrivastava, , Honble Supreme Court held that if an appointment is made in contravention of rules, it shall be void. It has been further held that the appointment which is void shall confer no legal right. Validity of appointment is pre-condition to claim any service benefit.

60. In R.S. Garg Vs. State of U.P. and Others, , while reiterating the aforesaid proposition of law, Honble Supreme Court held that an appointment made without complying with the statutory provisions would be void ab initio and incapable of regularisation.

61. In Pramod Kumar Vs. U.P. Secondary Education Services Commission and Others, , Honble Supreme Court held that the appointment done having lack of essential qualification shall be illegal which cannot be cured and the appointment which is contrary to the statute/statutory rule would be void in law.

62. In Shesh Mani Shukla Vs. D.I.O.S. Deoria and Others, , it has been again held by Honble Supreme Court that the appointment done in contravention of statutory provision shall be void ab initio. Refusal to grant approval to such appointment by statutory authority is proper and justified. Only because the person concerned has worked for long time will not entitle for a writ of mandamus for the purpose of approval.

63. In Ritesh Tewari and Another Vs. State of U.P. and Others, , Honble Supreme Court held that where initial action is void, subsequent action or development cannot validate such action. In case, an action is not lawful at its inception, it may not be validated at later stage since the legality strikes at root of the order. It would be beyond competence of any authority to validate such order. For convenience, paras 32, 33 and 34 of the judgment are reproduced as under:

"32. It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained the benefits. (Vide Upen Chandra Gogoi Vs. State of Assam and Others, ; Satchidananda Mishra Vs. State of Orissa and Others, ; and Regional Manager, S.B.I. Vs. Rakesh Kumar Tewari, .

33. In C. Albert Morris Vs. K. Chandrasekaran and Others, , this Court held that a right in law exists only and only when it has a lawful origin.

34. In Mangal Prasad Tamoli (Dead) by Lrs. Vs. Narvedshwar Mishra (Dead) by Lrs. and Others, , this Court held that if an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non-est and have to be necessarily set aside."

64. In State of Orissa and Another Vs. Mamata Mohanty, , their Lordships of Honble Supreme Court while reiterating the settled proposition of law held that a right in law exists only and only when it has lawful origin. To quote relevant portion:

"37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. (vide: Upen Chandra Gogoi Vs. State of Assam and Others, ; Mangal Prasad Tamoli (Dead) by Lrs. Vs. Narvedshwar Mishra (Dead) by Lrs. and Others, ; and Ritesh Tewari and Another Vs. State of U.P. and Others, ."

65. All these cases, relied upon by learned Advocate General deal with a situation where the appointment is being done in contravention of statutory rules and regulation but in the present case, the question cropped up is otherwise. The petitioners were appointed under the amended Code of Criminal Procedure (supra) as well as L.R. Manual. Their appointment was not done in violation of any statutory provision or rules framed thereunder. It becomes void only after this Court has struck down the amendment done in L.R. Manual as well as in Section 24 CrPC. The effect of declaring statute ultra vires or quashing the amended L.R. Manual is to be looked into in other cases.

66. In Madan Mohan Sharma and Another Vs. State of Rajasthan and Others, , the recruitment eligibility relaxed by the Government by subsequent amendment was struck down being conferring unbridled power.

67. In Madan Mohan Sharmas case (supra), Honble Supreme Court held that once rules have been struck down, the effect would be that it never stood in the statute book.

68. In DLF Universal Ltd. and Another Vs. Director, T. and C. Planning Haryana and Others, , their Lordships of Honble Supreme Court held that where direction issued by the appropriate authority in absence of any power, it shall be void in law. Honble Supreme Court observed as under:

"54................... It needs no restatement that any order which is ultra vires or outside jurisdiction is void in law i.e. deprived of its legal effect. An order which is not within the powers given by the empowering Act, it has no legal leg to stand on. The order which is ultra vires is a nullity, utterly without existence or effect in law."

69. In Ranu Hazarika and Others Vs. State of Assam and Others, , Supreme Court held that where recruitment process is under ultra vires Rules, any action under such illegal rule would be null and void.

70. In a case reported in State of Himachal Pradesh and Others Etc. Etc. Vs. Nurpur Private Bus Operators Union and Others Etc. Etc., , Honble Supreme Court held that where the High Court has declared a provision ultra vires to Act, then it has got no right to make it prospective in nature. Once a provision is declared ultra vires, then for all times to come, it shall be deemed to be non-existing and whatever has been done earlier (collection of tax), shall stand invalidated. Relevant portion is reproduced as under:

"The High Court, in the judgment afore-mentioned, held that the levy and realisation of tax on the basis which had been held to be invalid by it "for the period between 1st April, 1991 and 30th September, 1992 shall not stand invalidated.... We propose to direct that the declaration made by us today shall be applicable prospectively and with effect from October 1, 1992 alone." Some operators challenge the correctness of this. They are right, for the doctrine of prospective over-ruling cannot be utilised by the High Court. Once the High Court came to the conclusion, rightly, that the concerned provisions were invalid, it was obliged to so declare and, consequently, the collections made thereunder stood invalidated."

(VIII) OBJECTIVE SATISFACTION

71. Honble Supreme Court in a case reported in State of U.P. and Others Vs. Ajay Kumar Sharma and Another, held that it shall be obligatory on the part of District Judges and District Magistrates while making appointment or renewal of the post of District Government Counsels to make objective assessment of work, conduct and performance of the candidates and make recommendations keeping in view larger public interest in contradiction to the interest of particular political party. The observations made by the Honble Supreme Court in the case of Ajay Kumar Sharmas case (supra) are reproduced as under:-

"19. We have given serious thought to the entire matter. About 100 writ petitions with prayer similar to those contained in Writ Petition No. 9127/2012 are pending before the High Court. The question whether the existing District Government Counsel and Additional District Government Counsel are entitled to renewal of their term as of right or the State Government is required to act in consonance with paragraph 7.08 of the LR Manual and the judgments of this Court in Johri Mals case and Rakesh Kumar Kesharis case, is yet to be decided. Therefore, the Division Bench of the High Court was not at all justified in issuing an interim mandamus for renewal of the appointments of respondent Nos. 1 and 2. While doing so, the High Court ignored the law laid down in Ramesh Chandra Sharmas case, Harpal Singh Chauhans case, Johri Mals case and Rakesh Kumar Kesharis case as also Ashok Kumar Nigams case, that appointment of District Government Counsel and renewal of their term is required to be made in accordance with the provisions of LR Manual read with Section 24 Cr.P.C.

20. While renewing the term of the appointment of the existing incumbents the State Government is required to consider their past performance and conduct in the light of the recommendations made by the District Judges and the District Magistrates. Therefore, the High Court could not have issued a mandamus for renewal of the term of respondent Nos. 1 and 2 and other similarly situated persons and thereby frustrated the provisions of LR Manual and Section 24 Cr.P.C.

21. In the premise aforesaid, the appeal is allowed and the impugned order is set aside. The State Government shall now fill up the existing vacant posts by considering the cases of all eligible persons strictly in accordance with the relevant provisions of LR Manual read with Section 24 Cr.P.C. and the judgments of this Court in Johri Mals case and Rakesh Kumar Kesharis case. The District Judges and the District Magistrates, who are required to be consulted by the State Government, are expected to make objective assessment of the work, conduct and performance of the candidates and make recommendations keeping in view larger public interest in contradistinction to the interest of the particular political party."

72. In Blacks Law Dictionary Ninth Edition the word objective and assessment have been defined as under:-

"objective, Of, relating to, or based on externally verifiable phenomena, as opposed to an individuals perceptions, feelings, or intentions, 2. Without bias or prejudice; disinterested

Assessment, 1. Determination of the rate or amount of something, such as a tax or damages

73. In The New Lexicon Websters Dictionary Deluxe encyclopedic Edition the word objective and assessment have been defined as under:-

Objective, 1. of or pertaining to an object having a real, substantial existence external to an observer pertaining to an external object or event quite independent of the observers emotions or imagination unbiased, to take an objective view of the case of an object governed by transitive verbs or prepositions 2. an aim or goal a place to be captured, destroyed etc. the objective case something having an existence external to an observer the principal image-forming device in an optical instrument. In a microscope or refracting telescope it consists of a lens or a system of lenses forming an image of the object at the focal plane of the eyepiece.

"assessment--the amount assessed the act of assessing an estimate.

74. In the Advanced Law Lexicon 4th Edition by P Ramanatha Aiyars the words objective, objective factors, objective standard, objectivity have been defined as under:-

"objective--

Pertaining or considered in relation to its object constituting or belonging to an object of action, thought or feeling; denoting the object or point to which the operations are directed.

objective factors--

Secondary considerations concerning whether an invention was non-obvious, including a long-felt but unmet need, commercial success, and use of copying by others.

Objective standard--

The test of negligence in terms of the prudent man is called the "objective" standard, because it does not depend upon a finding of what passed in the defendants mind.

Objectivity--

Accounting principle that anyone who prepares accounts should make no subjective assessments, an advantage sometimes claimed for historical cost accounting.

75. In view of Ajay Kumar Sharmas case (supra) as well as dictionary meanings of the words objective and assessment there appears to no doubt that assessment should be done with regard to performance of District Government Counsels while discharging their duty. Performance does not co-relate with the success in the cases but it relates to the integrity, labour and knowledge put in by the Government Counsel while prosecuting or defending on behalf of the State. Outcome of the case depends upon the courts view and seems to have got no concern with the objective assessment and it relates to opinion of courts.

76. Under the manual, District Judges have to submit their opinion in the prescribed format that is Form 9 (supra), hence, there appears to be no fault on their part. In case they express their view within the fore-corner of prescribed format and the Government wants something more than that, it shall be incumbent upon it to amend the format so that District Judges or District Magistrate while submitting their recommendations may travel beyond the format and give their opinion more precisely in the light of Ajay Kumar Sharmas case (supra).

77. It is not borne out from the record that how the District Judges and District Magistrate have failed to make the objective assessment or the performance of District Government Counsel under the teeth of Form-9. Decision seems to have been taken by the Government without assigning reason, on unfounded ground under teeth of recommendation of District Judges and District Magistrates.

(IX) REASONING

78. While rejecting the petitioners claim for renewal, broadly, the State has relied upon two grounds, firstly, the amendment in Section 24 as well as the L.R. Manual, being declared illegal and void, no benefit can be given to the incumbents of the services rendered by them during the said period. Secondly, almost in all cases, the District Judges have sent recommendation for renewal. The renewal has been rejected which seems to be by a common ground that objective assessment has not been done while forwarding the recommendation by respective District Judges.

79. While deciding the writ petition of U.P. Shashkiya Adhivakta Kalyan Samiti (supra), it has been held by the Division Bench of this Court and affirmed by Honble Supreme Court that while rejecting an application for renewal, the Government shall assign reason.

80. A perusal of the record reveals that almost in all cases, renewal has been rejected mechanically merely by saying that no objective assessment has been done by the respective District Judges while forwarding their recommendations. How and under what manner, the recommendation sent by the District Judges or the District Magistrates is not in tune with Ajai Kumar Sharmas case(supra) is not borne out from the record. How objective assessment has not been done is also not borne out from the impugned orders, though all the District Judges have sent their recommendations in Form/Appendix-9 of L.R. Manual, required under the Rules. Thus, the Government has failed to assign reason while rejecting the applications for renewal of Government counsel. The order is cryptic without discussing the matter, hence seems to be contrary to earlier judgment of this Court in U.P. Shashkiya Adhivakta Kalyan Samiti (supra), affirmed by Honble Supreme Court.

81. A Full Bench of this Court, while deciding the administrative power of the Government with regard to reasoning, in a case reported in Ms. Ranjana Agnihotri and Others Vs. Union of India and Others, (delivered by one of us, Justice Devi Prasad Singh) has elaborately considered the recent trend with regard to exercise of administrative power of the State or its instrumentality and held that the reasoning excludes arbitrariness, hence it is must even in administrative order. The Full Bench held as under:

181. The Supreme Court in a case reported in Sudhir Chandra Sarkar Vs. Tata Iron and Steel Co. Ltd. and Others, :

"................ our Constitution envisages a society governed by rule of law. Absolute discretion uncontrolled by guidelines which may permit denial of equality before law is the anti-thesis of rule of law. Absolute discretion not judicially reviewable inheres the pernicious tendency to be arbitrary and is therefore violative of Article 14. Equality before law and absolute discretion to grant or deny benefit of the law are diametrically opposed to each other and cannot co-exist."

182. In Bachan Singh, Sher Singh and Another and Ujagar Singh and Another Vs. State of Punjab and Others, , Honble Supreme Court held that the rule of law which permeates the entire fabric of the Constitution and indeed forms one of its basic features excludes arbitrariness where court finds arbitrariness or unreasonableness, it shall be denial of rule of law.

183. In Naraindas Indurkhya Vs. The State of Madhya Pradesh and Others, , Honble Supreme Court held that if power conferred by statute on any authority of the State is vagrant and unconfined and no standards or principles are laid down by the statute to guide and control the exercise of such power, the statute would be violative of the equality clause which may permit arbitrary and capricious exercise of power which is the antithesis of equality before law.

184. In AIR India Vs. Nergesh Meerza and Others, , Honble supreme court struck down the provision on the ground of excessive delegation of discretion which does not provide any guiding rules or principle to govern the exercise of discretion by Managing Director.

185. In Suman Gupta and Others Vs. State of Jammu & Kashmir and Others, , Honble supreme Court held that an uncontrolled and unguided discretionary power is incompatible with Art. 14. The administrative power is to be exercised within defined limits in the reasonable discretion of designated authority.

186. It is well settled proposition of law that every State action should be just and fair and be issued to ensure public good vide Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, , Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, , Delhi Transport Corporation Vs. DTC Mazdoor Congress. It is further well settled proposition of law that in case a person holds public office, then in the event of exercise or non-exercise of public power, such person may be held accountable vide Common Cause, A Registered Society Vs. Union of India and Others, .

195. The Federal Administrative Procedure Act, 1946 prescribes the basic procedural principles which are to govern formal administrative procedures and contained an express provision (Section 8(b)) to the effect that all decisions shall indicate a statement of findings and conclusions as well as reasons or basis therefor, upon all the material issues of fact, law or discretion presented on the record.

196. The Supreme Court in a case reported in The Siemens Engineering and Manufacturing Co. of India Ltd. Vs. The Union of India (UOI) and Another, , held as under:

"6............... If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the ad judicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law."

197 In one another case reported in State of Orissa Vs. Dhaniram Luhar, , their Lordships of Supreme Court held as under:

"8.......... Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made.......... ".

198. In Mc Dermott International Inco. Versus Buru Standard Co. Limited and others (2006) SLT 345, their Lordships observed as under:

"...Reason is a ground or motive for a belief or a course of action, a statement in justification or explanation of belief or action. It is in this sense that the award must state reasons for the amount awarded. The rationale of the requirement of reasons is that reasons assure that the arbitrator has not acted capriciously. Reasons reveal the grounds on which the arbitrator reached the conclusion which adversely affects the interests of a party. The contractual stipulation of reasons means, as held in Poyser and Mills Arbitration In Re, "proper, adequate reasons". Such reasons shall not only be intelligible but shall be a reason connected with the case which the court can see is proper. Contradictory reasons are equal to lack of reasons................ "

199. A Division Bench of this Court in a case reported in 2007 LCD 1266 Vijai Shanker Tripathi versus Honble High Court of Judicature at Allahabad has considered the concept of exercise of discretionary power by the State or its authorities including the High Court held that every administrative order passed by authorities must fulfil the requirement of Art. 14 of the constitution.

200. Supreme Court in a case reported in Kranti Associates Pvt. Ltd. and Another Vs. Sh. Masood Ahmed Khan and Others, held that a cryptic order shall deem to suffer from vice of arbitrariness. An order passed by quasi judicial authority or even administrative authority must speak on its face.

In a case reported in Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota Vs. Shukla and Brothers, , their Lordships held that the reason is the very life of law. When the reason of a law once ceases, the law itself generally ceases. Such is the significance of reasoning in any rule of law. Giving reasons furthers the cause of justice as well as avoids uncertainty. To quote relevant portion from the judgment (supra), to quote:

"Reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principle are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements."

201. The aforesaid view with regard to reasoned order by authorities which include judicial and quasi judicial authorities has been consistently reiterated by the Supreme Court in earlier judgments. Their Lordships of Honble Supreme Court held that the authorities have to record reasons, otherwise it may become a tool for harassment vide K.R. Deb Vs. The Collector of Central Excise, Shillong, ; State of Assam and Another Vs. J.N. Roy Biswas, ; State of Punjab versus Kashmir Singh, 1997 SCC (L&S) 88; Union of India and Others Vs. P. Thayagarajan, ; and Union of India versus K.D. Pandey and another, (2002)10 SCC 471 [LQ/SC/2000/1625] .

In a recent judgment reported in AIR 2013 SCW 2752 [LQ/SC/2012/578] Union of India versus Ibrahimuddin(para 33), their Lordships of Honble Supreme Court reiterated that every order passed by the administrative authority, judicial or quasi judicial must be a reasoned order."

82. In view of settled proposition of law, by catena of judgments of Honble Supreme Court (supra), considered by Full Bench of this Court (supra), there appears to be no room of doubt that the Government has no right to reject the application for renewal mechanically without discussing the factual material on record and assigning reason. The Government should have disclosed in each and every case how and under what manner, the District Judges have failed to assess objectively the respective cases of the Government Counsels while forwarding their recommendations which does not seem to have been done.

(X) RIVAL SUBMISSIONS

83. Sri J.N. Mathur, learned Senior Counsel has given much emphasis over the observations made by the Division Bench of this Court in the case of Bishan Pal Saxena mainly to the following portion of the directions issued by the Division Bench of this Court:-

"(2) The persons appointed in pursuance to old provision shall continue for the period of four months or till re-consideration of their cases in the light of the aforesaid two judgment passed by the Division Bench (supra), whichever is earlier.

(3) No fresh appointments shall be done henceforth except in accordance to law settled by aforesaid two judgments (supra). In case some of the petitioners are still holding the post then they shall continue on their respective post till the State Government considers afresh with regard to their renewal of appointment with due opportunity to the serving incumbents in the light of judgments of this Court (supra).

The writ petitions are disposed of accordingly."

84. Submission of learned counsel for the petitioners is that renewal should have been considered without taking note of the fact that large number of the petitioners were appointed during the period when L.R. Manual as well as Code of Criminal Procedure was amended without due consultation with the District Judge and District Magistrate. At the first instance, the argument seems to be lawful and genuine but it must be kept in mind that the case of Bishan Pal Saxena (supra) this Court had only reiterated the earlier judgment of this Court which has been affirmed by the Honble Supreme Court. It does not stand on its own leg. Rather, it commands the State Government to comply with the earlier judgment of this Court i.e., U.P. Shaskiya Adhivakta Kalyan Samiti (supra). Accordingly, whatever interpretation has been given by the learned Senior Counsel, seems not to be valid one for the reason that it is not Bishan Pal Saxenas (supra) judgment but earlier two judgments (supra) have binding nature so far as the merit of the case is concerned. Bishan Pal Saxenas case (supra) came into light only because the Government has kept the matter pending and not proceeded ahead to consider the renewal of names of candidates with regard to whom the directions have been issued by this Court.

85. The other argument of the petitioners counsel is that in similar circumstances with regard to same set of persons while considering the case of renewal in pursuance of earlier judgments, renewal has been done but with regard to others, it has been rejected as void or on the ground that the District Judge has not forwarded the recommendation with objective assessment.

86. It is well settled principle of law that equals cannot be treated unequally vice, Indira Sawhney Vs. Union of India and Others, Ajit Singh and Others Vs. The State of Punjab and Others, R.K. Sabharwal and others Vs. State of Punjab and others, Indra Sawhney etc. etc Vs. Union of India and others, etc. etc., ; Md. Usman and Others Vs. State of Andhra Pradesh and Others, ; Venkateshwara Theatre Vs. State of Andhra Pradesh and Others, ; Union of India and Another Vs. Tulsiram Patel and Others, Jasbir Singh Chhabra and others Vs. State of Punjab and others. We have also considered this aspect of the matter (supra) and are of the view that the advice of the Office of the Principal Secretary Law, is against all cannons of justice and suffers from vice of arbitrariness hence hit by Article 14 of the Constitution of India.

87. The argument advanced by the petitioners counsel seems to carry weight and such action on the part of the Government shall amount to discriminatory treatment and hit by Article 14 of the Constitution of India. So far as the appointment done beyond sanctioned strength is concerned, in no way, such appointment can be held to be valid one. The candidates appointed on the sanctioned strength that too, without recommendation of District Judge and District Magistrate, does not seem to have got right to continue on the post of District Government Counsel. While considering the case of renewal, in case the Government finds that they have been appointed beyond sanctioned strength, then such ground must be considered and mentioned in the order of rejection itself. By applying the principle of first come last go.

88. It is vehemently argued that majority of appointment was done under para 10.01 of L.R. Manual which confers right to make appointment as Special Counsel. We have already held that Special Counsels are appointed in pursuance of provisions contained in Section 24(8) of CrPC read with para 10.01 of L.R. Manual. Persons appointed in pursuance of said provisions, have no right to be considered for renewal but such persons have right to seek fresh appointment in pursuance of the advertisement. It shall be obligatory on the part of the Office of the Principal Secretary Law, to maintain the records in pursuance of Secretariat Manual (supra) and in case records are not maintained in pursuance of L.R. Manual, such incident may warrant adverse remark in the service of the Principal Secretary Law and other members of subordinate judiciary as well as staff who are working in the Office of Legal Remembrancer. Court may also pass appropriate order or stricture in the event of ill-maintenance of records by the Office of Legal Remembrancer.

89. It is not desirable to make appointment on the basis of caste, creed or religion. It is the duty of the Office of Legal Remembrancer to ensure that all appointments are done in accordance with merit and rules and not otherwise. The argument advanced by the learned Advocate General carries weight that no person could be appointed beyond sanctioned strength but while considering the cases of renewal or appointment, it must be mentioned in the order so that during the course of judicial review, Court may scrutinize the decision making process.

90. Now, law has been well settled with regard to renewal of District Government Counsel (Revenue). It appears that while making appointment of District Government Counsel (Revenue), the Government has not obtained the opinion of the District Judge which seems to be mandatory in view of settle proposition of law. All decisions taken without taking the opinion of District Judge, shall not be lawful and will be invalid.

91. It is not necessary to consider each and every writ petitions since in almost all the cases, the application for renewal has been rejected on the ground that the District Judges have not done objective assessment or appointment was void ab initio since no opinion of District Judge was obtained though, the appointment was done during the amended provisions of CrPC and L.R. Manual. In some of the case, renewal has been done with regard to same set of persons appointed similarly but with regard to others, renewal has been rejected. How, the recommendation has not been sent with due objective assessment of candidates is not borne out from the record in view of unreasoned order that too, under the teeth of the fact that the District Judge has sent the recommendation in the prescribed format i.e., Form-9 of L.R. Manual.

(XI) FINDINGS

92. In view of the above, we record our findings as under:-

(1)- In view of the settled proposition of law as well as L.R. Manual, the advertisement should have been done in the newspaper granting 15 days time to candidates to apply for renewal and appointment but in districts Hamirpur, Etah, Bijnor, Siddharthnagar, Shahjahanpur. Kasganj, Sonbhadra, Shravasti, Lucknow, Kaushambhi, Badaun, Sitapur, Unnao, Meerut, Kushinagar, Lalitpur, Muzaffarnagar, Moradabad, Jhansi and Chandauli, the advertisement was made on different dates in the month of February and March, 2013, and has been held to be the basis for appointment with regard to 96 posts between 27.5.2014 to 30.5.2014. The appointments done in these districts, suffer from vice of arbitrariness and seems to be a blot on the Office of Legal Remembrancer who are the participatory to such appointments and is deprecated. Thus, all these appointments are invalid and not sustainable under the law being suffered from arbitrariness.

(2)- The appointments done in pursuance of provisions contained in para 7.10 read with Section 24(8) of CrPC are only to meet out the immediate requirement of a particular case or to meet out the exigency of service. We are conscious that large number of appointments are done under these provisions but our hands are tight. Persons appointed under such provisions do not seem to have got statutory right for renewal and while considering their cases, the Government may indicate in the decision with regard to nature of their appointment and take appropriate decision in pursuance of observations made in the body of the present judgment by speaking and reasoned order.

(3)- It is highly arbitrary and unlawful on the part of the Government to invoke provisions contained in para 7.10 of L.R. Manual for regular appointment of Government Counsel. The appointment made with the tenor of regular appointment under para 7.10 of L.R. Manual shall not be lawful and may not extend any service benefit to the District Government Counsel for the purpose of renewal or fresh appointment.

(4)- The allegations with regard to appointment on the basis of caste, creed or religion by the Government seems to be not sustainable. We are not recording any finding in the absence of any material on record but it is expected that the Government shall make appointments on the post of Government Counsels expeditiously on merit without being influenced by castes, creed or religion. No person shall be deprived or discriminated only because he/she belongs to a particular caste or creed or religion.

(5)- After the judgment of U.P. Shaskiya Adhivakta Kalyan Samiti (supra) and Sadhana Sharma (supra) as well as Section 24(8) of CrPC, it shall be obligatory on the part of the Government to make appointment of the Director of Prosecution in letter and spirit in pursuance to the provisions contained under Section 25-A of CrPC and appointment on the post of Director of Prosecution must be made with the concurrence of Honble the Chief Justice of this Court. The Government must, within a period of three months, ensure that the decision with regard to appointment of Director of Prosecution with concurrence of Honble the Chief Justice is taken, in case already not taken and the appointment of the Director of Prosecution and others must be strictly in accordance with the provisions of Section 25-A of CrPC.

(6)- The Government has not disclosed in the impugned order how the District Judges have failed to forward recommendation with "objective assessment" of work of District Government Counsel that too, under the teeth of Form-9 of the Appendix of L.R. Manual. It shall be appropriate for the Government to amend the Form-9 with column with regard to objective assessment in the light of the judgment of Honble Supreme Court (supra).

(7)- Since in none of the orders, the reason has been assigned by the Government while declining for the renewal of the District Government Counsel with regard to objective assessment, all such orders are contrary to ratio of earlier judgments of this Court in the case of U.P. Shaskiya Adhivakta Kalyan Samiti (supra), which has been affirmed by the Honble Supreme Court (supra) hence the decision taken by the Government, suffers from vice of arbitrariness and also being unreasoned hence is hit by Article 14 of the Constitution of India.

(8)- All appointments done beyond the sanctioned strength, shall be invalid and while considering the cases of such incumbents, the Government must indicate in the decision taken by it by applying the principle of first come last go..

(9)- Since the Office of Principal Secretary Law/Legal Remembrancer is not discharging their obligations in accordance with Rules as an advisory body to the Government, and seems to have converted itself as officers of the Government Department, it is giving bad name to the judiciary, hence, for appointment on the post of Principal Secretary Law or other officers in the Office of Legal Remembrancer, the procedure for appointment from subordinate judiciary, requires further modification and be placed before the Honble Chief Justice or Full Court of this Court. The selection or appointment may continue subject to the pleasure of the Government but primacy should be given to the opinion of the Honble Chief Justice of this Court. The High Court has privilege to withdraw all its law officers from the Government in the event of receipt of complaint or otherwise.

(10)- It shall be obligatory on the part of the Office of Principal Secretary Law, to maintain the records strictly in accordance with earlier judgments (supra) and Secretariat Manual. Non-compliance of the judgment by the Principal Secretary Law and its officers, shall amount to contempt of this Court and also dereliction in duty constituting serious misconduct which may be recorded in their service records by the Advocate General/competent authority or this Court during the course of judicial review of their action and may further warrant punishment in accordance to law.

(11)- It shall further be obligatory on the part of the District Judges as well as District Magistrates to maintain service record and make necessary entry in the character rolls in view of para 7.09 of L.R. Manual. Every District Judge or District Magistrate while leaving Office, must make necessary entry in the service records of all Government Counsels appointed and working under whatsoever names. The Government must prepare necessary format with regard to service book of the State Government Counsel and provide the same to all the District Judges and District Magistrates of the State of U.P., expeditiously say, within three months. Failure to make necessary entry in the service records of the Government Counsel working under whatsoever names, shall amount dereliction in duty by the District Judges and District Magistrates and amount to serious misconduct which may warrant adverse entry in their respective service records along with other punishment in accordance to law.

(12)- Government may make necessary amendment in Form-9 of L.R. Manual to provide column for the District Judges and District Magistrates to record objective assessment of the Government Counsels.

(13)- Success or failure in a case or cases subject to honest discharge of duty shall not come in way to renew the appointment of District Government Counsels.

(14)- No persons having criminal antecedents or persons against whom criminal cases are pending involving moral turpitude on account of registration of F.I.R., could have been appointed on the post of District Government Counsel under whatsoever name, in view of earlier judgments (supra) which have been affirmed by the Honble Supreme Court. The District Judges and District Magistrates shall ensure that no persons having criminal antecedents or against whom F.I.R. has been lodged involving moral turpitude, are permitted to discharge duty as District Government Counsel under whatsoever name may be, within their Judgeship.

Every case is suffered from substantial illegality (supra) or infirmity disclosed in the body of present judgment. Hence we are not dealing the writ petitions of this bunch individually leaving some grounds raised by the petitioners for future case and deciding by this common judgment since no objection has been raised by either side during the course of hearing.

93. At the sake of repetition, we show our deep concern and anguish to the manner in which the Office of Principal Secretary Law, acted and made appointments in the month of May, 2014 in 20 districts (supra) which seems to be without advertisement and public notice. At the belated stage, a statement has been made that appointments were made in pursuance of the advertisement a year back i.e., 2013 (supra). It seems to be an attempt on the part of the State Government as well as Office of the Principal Secretary Law to conceal the material fact before this Court. In the earlier judgment of this Court in U.P. Shaskiya Adhivakta Kalyan Samiti (supra), we have requested Honble the Chief Justice of the High Court to take some corrective measures while sending judicial officers on the post of Principal Secretary Law and others. The Registrar General seems to have not invited attention and in consequence thereof, no action has been taken.

94. The case of Km. Shri Lekha Vidyarthi (supra) of the year 1991 also relates to the State of U.P., where, by a single stroke of pen, district government counsels were removed. There appears to be no change in the situation and mind set. Attention of this Court has not been invited to any dissenting note of the Principal Secretary Law or its officers while filling the vacancies of almost 20 districts without advertisement and in accordance of law, L.R. Manual as well as earlier judgments of this Court (supra) which have been affirmed by the Honble Supreme Court. There appears to be no room of doubt that renewal has been rejected on cooked up grounds in hasty manner to fill up vacancies of District Government Counsels in violation of mandates of Honble Supreme Court. The judicial officers working in the Government seems to have lost their fairness and firmness for some unforeseen reasons.

95. We again request Honble the Chief Justice as well as High Court on administrative side, that the selection process of judicial officers from subordinate courts to work in Government on any post whatsoever, should be streamlined and selection be done on merit without being influenced of caste, creed, religion or ideology from the officers having impeccable character, integrity and knowledge. Otherwise, the time is not far away when in the eyes of common citizens, all three wings of the Government shall be deemed constitute one block to abuse the power for their vested interest.

96. Justice John Marshal a Judge of US Supreme while commenting on the power of contempt of superior judiciary said, to quote:-

"Power of judiciary lies not in deciding cases, not in imposing of sentences, not in punishing for contempt, but in the trust, confidence and faith of the common man."

97. Greek Philosopher Socrates while considering qualities of a Judge, has held courtesy, wiseness, sobriety and impartiality, to be the character of a good Judge.

98. Bacon said, to quote:-

" Above all things, integrity is the Judges portion and proper virtue. It is the capacity to decide impartially which is the most important criterion for judging the performance of the Judges on the Bench."

Once it is said that judging is lonely job and Judges, more often than not, are islands.

99. Patrik Devlin said, to quote:-

"I put impartiality before the appearance of it simply because without the reality the appearance would not endure. In truth, within the context of service to the community the appearance is the more important of the two. The Judge who gives the right judgment while appearing not to do so may be thrice blessed in heaven but on earth he is no use at all."

100. While working on the assignment in the Government as Law Officer or any other name whatsoever may be, the judiciary is supposed to be impartial and their advice must be with all fairness within the four corners of law and constitutionalism. They are the rock between truth and untruth and supposed to protect the truth by all means even at the stake of their own survival.

101. Independence of judiciary has many dimensions i.e., fearlessness of other power centres, economic or political, and freedom from prejudices, acquired and nourished, by the class to which the Judge belongs. The heart of judicial independence is judicial individualism vide, High Court of Judicature at Bombay through its Registrar Vs. Shirish Kumar Rangrao Patil and another, .

Honble Supreme Court held that judiciary is composed of individual men and women who work primarily on their own. Judicial individualism in the language of Justice Powell of the Supreme Court of United States in his address to the America Bar Association, Labour Law Section on 11.8.1976, is perhaps one of the last citadels of jealously presumed individualism... vide, C. Ravichandran Iyer Vs. Justice A.M. Bhattacharjee and Others, .

Every judicial officer working in subordinate courts anywhere on an assignment in the Government, should bear in mind the aforesaid basic norms required to be followed while discharging his or her obligations.

102. However, things seems to be otherwise and disturbing us. Appointment of members of judiciary on any assignment in the Government, must be at the pleasure of High Court i.e., Chief Justice purely on merit choosing persons having impeccable character, knowledge and devotion to duty.

(XII) ORDER

103. Subject to the findings recorded hereinabove, writ petitions deserve to be allowed. Accordingly, the writ petitions are allowed in the following manner:-

(1)- A writ in the nature of certiorari is issued quashing the impugned orders with regard to rejection of the renewal of the petitioners with consequential benefits.

(2)- A further writ in the nature of mandamus is issued commanding the State Government to re-consider the petitioners case with regard to renewal/appointment keeping in view the observations made and findings recorded in the body of the judgment expeditiously say, within three months and submit a compliance report. Government shall take further suitable steps to streamline the selection, renewal and appointment of District Government Counsels in the light of observations made and findings recorded in the body of present and earlier judgments (supra) within three months.

(3)- A writ in the nature of mandamus is further issued directing the State Government to establish the Directorate of Prosecution in pursuance of provisions contained in Section 25-A of Code of Criminal Procedure. The appointment of Director, Prosecution must be in concurrence with the Honble Chief Justice of Allahabad High Court and in case someone is working, let concurrence of Honble Chief Justice be obtained expeditiously say, within three months. The Government shall exercise necessary powers keeping in view the provisions contained in Section 25-A of Code of Criminal Procedure say, within aforesaid period of three months to establish Directorate of Prosecution.

(4)- District Judges and District Magistrates are required to ensure forthwith that no persons having criminal antecedent or against whom F.I.R. has been lodged, involving moral turpitude, are permitted to work as District Government Counsel under whatsoever name may be, within their Judgeship and they be not permitted to appear in their respective Courts. Government shall cancel all such appointments in view of direction issued in earlier judgments (supra) within a month.

(5)- Let a copy of the judgment be forwarded to the Chief Secretary, Government of U.P., and Principal Secretary Law, within a week by the Registry for compliance of the judgment within a period of three months and compliance report be also submitted to this Court. A copy of the judgment shall also be sent to Registrar General of this Court to apprise Honble the Chief Justice to consider to lay down the procedure and regulate the appointment and selection of Principal Secretary Law and their associates from meritorious scholars of the subordinate judiciary having impeccable character, knowledge, integrity and firmness.

(6)- Let the summary of present and earlier judgments (supra) be circulated to all the District Judges and District Magistrates by Principal Secretary Law, and Registrar General within one month and submit compliance report immediately thereafter.

Writ Petitions are allowed accordingly. No orders as to costs.