Pradeep Kant and Ajai Kumar Singh, JJ.

1. This petition by Avinash Chandra Srivastava, advocate challenges the order dated 6.7.04, by means of which his renewal as Additional District Government Counsel (Criminal) has been refused.

2. The Petitioner was appointed as Additional District Government Counsel (Criminal) in the Judgeship of Gonda on 30.10.98 for a period of one year. His term was further extended for a period of three years on 7.2.2000. The recommendations of the District Judge as well as that of the District Magistrate were sent to the State Government for extending the term of the Petitioner on 24.3.03. However, before the matter regarding the renewal of Petitioners term could be considered, an incident took place in the district on 21.1.04, where the lawyers went on strike against the decision of the State Government, abolishing Devi Patan Mandal and on that date, when the Petitioner was assisting the Court assigned to him, police entered into the premises of Gonda Judgeship and assaulted the Petitioner in the Court room. The Petitioner was injured and was taken to the office of the Superintendent of Police, where after medical treatment, he was allowed to go.

3. The aforesaid incident in which the Petitioner suffered injuries because of rowdyism and disorder in the Court premises, the fact of taking the Petitioner to the office of the Superintendent of Police, persuaded the District Magistrate to send his comments/report of the incident to the State Government, where the Petitioners case for renewal of term was under consideration, saying that the Petitioner was arrested on the aforesaid date and was later on released on bail, therefore, he is not a fit person to continue as Additional District Government Counsel.

4. The order refusing renewal, however, does not specify any reasons but in the counter-affidavit filed by the State and also in the argument raised by the learned Counsel for the State, it has been stressed that since the Petitioner was arrested and was later on released on bail in the incident mentioned above, his case for renewal was rejected. Half heartedly it has also been argued that recommendations of the District Judge, as a matter of fact, though said that the work and conduct of the Petitioner was good/satisfactory but he did not make any further recommendation for renewal of his term and the District Magistrate did not give his own opinion and, therefore, also his non-renewal was justified.

5. It is the case of the Petitioner since beginning that he was never arrested by the police nor in any way he was involved in the agitation of the lawyers, rather his stand was and is, that he was working in the Court assigned to him when the police entered into the premises and because of the disorder that prevailed in the Court compound, due to agitating lawyers and police intervention, he suffered injuries and, therefore, he was shifted to the office of the Superintendent of Police for necessary medical treatment, wherefrom he was allowed to go. In support of the plea that he was never arrested nor was released on bail, the Petitioner pleaded that, in fact, there was another gentleman/advocate of the same name, namely, Avinash Chandra Srivastava, who was actually arrested and against whom charge-sheet has already been issued in the criminal court and the District Magistrate, on mistaken identity, had submitted such a report. The questionnaire obtained from the Court of the Chief Judicial Magistrate, Gonda, filed as Annexure-RA-1 to the rejoinder-affidavit filed by the Petitioner clearly answers in negative the question that the Petitioner was ever brought to the Kotwali under arrest for the offences mentioned therein and consequently answer to the next question that whether he was released on bail has also been given in negative.

6. The affidavit of the Superintendent of Police, District Gonda, which has been filed before the Enquiry Officer, namely, Additional Sessions Judge, Fast Track Court, has also been brought on record, which corroborates the theory set up by the Petitioner.

7. Since the charge-sheet, a copy of which has been filed alongwith the supplementary-affidavit, clearly mentions the name of Avinash Chandra Srivastava son of Sri Shobha Ram, resident of Avas Vikas Colony, Police Station Kotwali Nagar, Gonda, whereas the name of the Petitioners father is late Sri Ram Chandra Prasad and he is resident of Malviya Nagar, Mahadeo Ashram, Ram Lila Ground, Near Shishu Mandir School, Gonda, it cannot be doubted that the Petitioner was never arrested and, therefore, there was no occasion for him to be released on bail.

8. In the counter-affidavit in para 31 though the State has reiterated that that Petitioner was involved in the agitation and, therefore, he was arrested and was later on released on bail but except the aforesaid bald statement, no document has been brought on record to establish even prima facie that the Petitioner was ever arrested, which led to his release on bail.

9. The casual attitude by the State in filing the counter-affidavit has resulted in deprivation of the renewal of the Petitioners terms as Additional District Government Counsel for years together. On a complete misaffirmation, his term has been refused from being renewed.

10. The defence taken by Sri A. K. Verma in support of the Governments stand that since these facts were not before the State Government when the renewal was being considered and there was only the report of the District Magistrate showing involvement of the Petitioner in agitation and his arrest and thereafter his release on bail, no fault can be attributed to the State Government in refusing the renewal, further shows that not only at the time of consideration of renewal, the State Government did not make any enquiry and passed the order with closed eyes but also at the time of filing counter-affidavit, it did not find it appropriate or proper to investigate the said issue, while replying to the averments made in the writ petition. In the writ petition, the Petitioner clearly stated that he was never arrested and that there was no occasion for releasing him on bail but the State Government felt satisfied by simply rebutting the said averment by making specific averment regarding arrest of the Petitioner and his release thereafter on bail. This attitude of the State Government compelled the Petitioner to file a rejoinder-affidavit and also the supplementary-affidavit bringing on record the documents, some of which have been mentioned by us in preceding paragraphs.

11. The Petitioner was not arrested and rather he was discharging his duties in the assigned Court and he suffered injuries because of the mishappening, which took place in the Court rooms, when he was taken for treatment, which has been taken as his arrest, though he was never under arrest and there was no release application moved by him, even then the State time and again insisted that he was released on bail. The State has not filed any release order. If the Petitioner had been released on bail, the State should have obtained the copy of the release order and filed the same.

12. There is enough material on record to indicate that the States action is wholly arbitrary, discriminatory and reflects its irresponsible attitude while deciding the important issues, like renewal of the terms of District Government Counsel.

13. So far the recommendations are concerned, if the District Judge has given recommendation certifying the work and conduct of the Petitioner and saying that it was satisfactory and the District Magistrate also endorsed the same view, it cannot be said that there is no recommendation in his favour. If the District Judge or the District Magistrate had said that he was not a fit person for being continued, of course, that recommendation could have been taken in negative sense, but since both of them endorsed the view that his work and conduct was satisfactory, we fail to appreciate as to in what manner the State found the recommendations to be incomplete. In any case, we are of the view that refusal of renewal of the term of the Petitioner has been done mainly being swayed by the information given by the District Magistrate that the Petitioner was arrested and he was released on bail, later on, and not on the ground that there was no recommendation in his favour, therefore, the said plea of the State is of no consequence.

14. We would like to put on record that action of the District Magistrate in sending his report against the Petitioner, without verifying as to who is the person, who was arrested and later on released on bail, can also not be appreciated and has to be deprecated. The District Magistrate is a responsible person of the district and it was expected of him to be doubly sure before any report was submitted to the State. We accordingly find that there was no material, on the basis of which, renewal of the Petitioners term in the office of Additional District Government Counsel (Criminal) could have been refused.

15. Since the matter requires reconsideration, we set aside the order impugned dated 6.7.04 and direct that the State Government shall reconsider the question of renewal of the term of the Petitioner in accordance with law, keeping in mind the observations made in this judgment. This shall be done within a maximum period of one month from the date of receipt of a certified copy of this order.

16. On consideration of the facts and circumstances of the case and the fact that the District Magistrate submitted the report without verifying and scrutinizing the issue and the conduct of the State in reiterating the same stand in the counter-affidavit, and on perusal of the specific averments made in the rejoinder-affidavit and the supplementary-affidavit, we find it a fit case where a cost of Rs. 20,000 be imposed upon the State. The cost shall be paid within one month. The cost shall be deposited with the Legal Services Authority. It will, however, be open for the State to recover the cost from the erring officer, namely, the District Magistrate.

The writ petition is allowed with cost.