S. R. Singh, J. - (1.) -The petitioner, a practicing advocate belonging to Scheduled Caste, has instituted this petition under Article 226 of the Constitution of India for issuance of a writ in the nature of certiorari quashing the entire process for appointment to the post of District Government Counsel (Revenue) (in short D.G.C. (R) in District Chandauli pursuant to the notice (Annexure-1 to the writ petition) and a writ, order or direction commanding respondent Nos. 1 and 2 to initiate the process of appointment to the post of D.G.C. (Revenue) afresh in accordance with law keeping in view the provision of Uttar Pradesh (Reservation of Scheduled Caste, Scheduled Tribes and Other Backward Classes) Act, 1994 (in short U. P. Act 4 of 1994).
(2.) THE question of paramount importance that has been raised in this writ petition is as to whether the provisions of U. P. Act 4 of 1994 will be applicable in relation to District Government counsel. It has been urged by Shri Sita Ram Singh, learned counsel appearing for the petitioner that services and posts of Government counsels, irrespective of their nomenclature, come within the purview of "Public Services and Posts" as defined in Section 2 (c) of U. P. Act 4 of 1994 and, therefore, the respondents are under legal obligation to make appointments to the 'services and posts' of Government counsels in accordance with the provision of the said Act. THE impugned notice (Annexure-1 to the writ petition), it has been submitted by the learned counsel, does not conform to the requirement of Section 3 of U. P. Act 4 of 1994 and is, therefore, illegal and void and the appointment, if made pursuant thereto, would attract the penal provision contained in Section 5 of the U. P. Act 4 of 1994. On the other hand, it has been submitted by Shri Vishwa Jyoti Sahai, the learned standing counsel, that the provisions of U. P. Act 4 of 1994 have no application in relation to appointments to the posts of Government counsel whatever may be their nomenclature-whether District Government counsel, Additional District Government Counsel in the District Courts, and Standing Counsel or Additional Government Advocates in the High Court. THE submission is that the post of 'Shaskeeya Adhivakta' of any description does not come within the purview of "Public Services and Posts" as defined under Section 2 (c) of the U. P. Act 4 of 1994. It has been further submitted that the appointment on the posts of 'Shaskeeya Adhivakta' being contractual in nature is not covered by the law of reservation as visualized by the U. P. Act 4 of 1994. Reliance is placed on Clause 3 of Para 7.06 of Legal Remembrancer's Manual, 1975, which reads as under : "7.06 (3). THE appointment of any legal practitioner as a District Government Counsel is only professional engagement terminable at will on either side and is not appointment to a post under the Government. Accordingly, the Government reserves the power to terminate the appointment of any District Government Counsel at any time without assigning any cause." We have given our anxious consideration to the submissions made across the Bar. The term "Public Services and Posts" as defined in Section 2 (c) of U. P. Act 4 of 1994, means "the services and posts in connection with the affairs of the State" and includes services and posts in-(i) a local authority ; (ii) a co-operative society as defined in clause (f) of Section 2 of the Uttar Pradesh Co-operative Societies Act, 1965 in which not less than fifty-one percent of the share capital of the society is held by the State Government ; (iii) a Board or a Corporation or a statutory body established by or under a Central or an Uttar Pradesh Act which is owned and controlled by the State Government, or a Government company as defined in Section 617 of the Companies Act, 1956, in which not less than fifty-one percent of the paid-up share capital is held by the State Government ; (iv) an educational institution owned and controlled by the State Government or which receives grants-in-aid from the State Government, including a university established by or under an Uttar Pradesh Act, except an institution established and administered by minorities referred to in clause (1) of Article 30 of the Constitution ; (v) in respect of which reservation was applicable by Government orders on the date of the commencement of this Act and which are not covered under sub-clauses (i) to (iv). The posts of District Government Counsel and for that purpose the posts of any State Law Officer or Government Counsel, irrespective of nomenclature, are not specifically mentioned in any of the sub-clauses (i) to (v) of Clause (c) of Section 2 of the U. P. Act 4 of 1994. The question that requires determination is as to whether 'services and posts' of Government Counsel engaged in the District Courts and the High Court can be treated as "services and posts" in connection with the affairs of the State so as to come within the purview of clause (c) of Section 2 of the U. P. Act 4 of 1994. In Km. Shrilekha Vidyarathi v. State of U. P. and others, AIR 1991 SC 537, it has been held that a District Government Counsel in the State of U. P. holds a 'public post and is treated as law officer of the State'. The nature of appointment of the District Government Counsel, it has been further held, is not a purely professional engagement terminable at sweet will of either side in that such an appointment consists of an element of continuity and public policy. After taking note of various provisions of Legal Remembrancer Manual, the Supreme Court observed as under : "These provisions clearly indicate that the appointment and engagement of District Government Counsel is not the same as that by a private litigant of his counsel and there is obviously an element of continuity of the appointment unless the appointee is found to be unsuitable either by his own work, conduct or age or in comparison to any more suitable candidate available at the place of the appointment. Suitability of the appointee being the prime criterion for any such appointment, it is obvious that an appointment of the best amongst those available, is the object sought to be achieved by these provisions, which, even otherwise, should be the paramount consideration in discharge of this Governmental function aimed at promoting public interest. All Government counsel are paid remuneration out of the public exchequer and there is a clear public element attached to the 'office' or 'post' xx xx ".......There can be no doubt about the statutory element attaching to such appointments by virtue of these provisions in the Code of Criminal Procedure, 1973. In this context, Section 321 of the Code of Criminal Procedure, 1973, is also significant. Section 321 permits withdrawal from prosecution by the public prosecutor in charge of a case, with the consent of the Court, at any time before the judgment is pronounced. This power of the public prosecutor in charge of the case is derived from statute and the guiding consideration for it must be the interest of administration of justice....... In the case of the public prosecutors, this additional public element flowing from statutory provisions in the Code of Criminal Procedure, undoubtedly, invests the public prosecutors with the attribute of holder of a public office which cannot be whittled down by the assertion that their engagement is purely professional between a client and his lawyer with no public element attaching to it." xx xx "We are, therefore, unable to accept the argument of the learned Additional Advocate General that the appointment of District Government Counsel by the State Government is only a professional engagement like that between a private client and his lawyer, or that it is purely contractual with no public element attaching to it, which may be terminated at any time at the sweet will of the Government excluding judicial review. We have already indicated the presence of public element attaching to the 'office' or 'post' of District Government Counsel of every category covered by the impugned circle. This is sufficient to attract Article 14 of the Constitution and being the question of validity of the impugned circular within the scope of judicial review."
(3.) IN case of K. C. Sood v. S. G. Gudimani, 1981 (2) Cr LJ 1179, the Delhi High Court in relation to the status of Government pleader held as under : "It is a public office of trust and, therefore, like any other public office is susceptible to misuse and corruption if not properly insulated. It is an office of responsibility more important than many others because holder is required to prosecute with detachment on the one hand and yet with vigour on the other." The afore-extracted judgment of Delhi High Court came to be approved by their Lordship of the Supreme Court in Mukul Dalal v. Union of India, 1988 (3) SCC 144. In Mundrika Prasad Sinha v. State of Bihar, AIR 1979 SC 1871, the Supreme Court held that the Government pleader is more than an advocate for litigant and holds a public office. In State of U. P. v. Bhola Nath Srivastava and others, AIR 1972 All 460, this Court has held that the office of Government Counsel is an office under the State. As a matter of fact, 'office' and 'post' are synonymous terms for the post under the State is an office in which the affairs of State are attached. In Suresh Prakash Agarwal v. State of U. P., 1970 All LJ 351, this Court has held that "the position of a panel layer is that of an office under the State within the meaning of Article 16 (1) of the Constitution of India." In Onkar Datt Sharma and others v. State of U. P. and others, 2001 (2) AWC 1494 ; 2001 (2) UPLBEC 1149, this Court has held : "The law and the society have always adapted to each other in several ways. 'Every citizen is born equal but gets chained within impregnable walls of social, sectional and religious barriers and is made a victim of discrimination and denuded of human rights-State of U. P. v. Dr. Dina Nath Shukla, 1997 (2) AWC 689 (SC) ; (1997) 9 SCC 667.............. The U. P. Reservation Act, 1994, which provides for 'protective discrimination' and "gives practical context to implement the constitutional mandate of equality of opportunity and status to Dalits, Tribes and O.B.C. in the matter of appointment to a public service or a post under the State of U. P. including the appointment in a university or educational institution", State of U. P. v. Dina Nath Shukla (supra) must be so interpreted as to advance its object and purpose. This is one of the ways in which the law and the society adapt to each other. The construction we beg to put upon the related statutory provisions will strike a reasonable balance between contending claims of privileged and under-privileged classes of society." ;