- (1.) PRELIMINARY objection filed by the respondents is taken on record.
(2.) THIS is a bunch of writ petitions in which controversy raised is with regard to appointment and renewal on the post of Additional District Government Counsel, Assistant District Government Counsel, Panel Lawyers and Sub District Government Counsel.
(3.) WE do not propose to set aside the appointment already done under the amended L.R. Manual for the reasons discussed hereinbelow: Appointment and renewal done in pursuance to the amended L.R. Manual vide Government Order dated 13th of August, 2008 has been set aside by a Division Bench of this Court of which one of us (Hon'ble Devi Prasad Singh, J.) was a member in Writ Petition No. 7851 (MB) of 2011; U.P. Shaskiya Adhivakta Kalyan Samiti, 8, Mustafa Market, Si Vs. State of U.P. Through Prin. Secretary Nyay Evam Vidhi Parama) and other connected writ petitions. The finding as well as operative portion of the order passed by the Division Bench in the aforesaid writ petition is reproduced below: (XVI) FINDING 248. In view of above, we summarise our finding as under : 2. AS discussed and held, the Government exceeded jurisdiction by amending the L.R. Manual contrary to the mandate of Shailendra Kumar Ojha's case (supra) against which the Special Leave Petition has been disposed of by Hon'ble 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 Hon'ble 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 Rana's case (supra), followed by Shailenra Kumar Ojha's case (supra). It is unfortunate on the part of the State Government and the office of the Legal Remembrancer that they have not apprised Hon'ble Supreme Court during hearing in subsequent cases with regard to finality of issue by the judgment of this Court affirmed by Hon'ble Supreme Court. A plain reading of the order passed by Hon'ble 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 Hon'ble Supreme Court had agreed that the judgment delivered by the High Court was in conformity with Johri Mal's 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 Hon'ble 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 Hon'ble 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. 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 : 2011 5 SCC 305 State of U.P and others Versus Hirendra Pal Singh and others, their Lordships of Hon'ble 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 Hon'ble 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). Right from Srilekha Vidyarthi (supra), Johri Mal and Hirendra Pal Singh (supra), it has been consistent view of Hon'ble 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 Hon'ble Supreme Court and this Court. Hence, not sustainable. 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 Hon'ble Supreme Court in the case reported in : 1993(3) SCC 552 Harpal Singh Chauhan and others versus State of U.P (para 15), : 1991(1) SCC 212 Km. Srilekha Vidyarthi and others versus State of U.P. and others (paras 11, 46 and 47) and a Division Bench's judgment of this Court reported in : 2004 1 UPLBEC 415 Shailendra Kumar Ojha versus State of U.P. (paras 26 and 45), 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.;