KUMARI SHRILEKHA VIDYARTHI ETC. ETC v. STATE OF U.P. AND ORS

Citation: [1990] SUPP. 1 S.C.R. 625

Court: Supreme Court of India

Bench: J.S. VERMA, R.M. SAHAI

Case summary

of the Constitution of India and special leave petitions under Article 136 of the Constitution of India, all of which involve for decisjon certain common questions....

Judgment text

The Judgment of the Court was delivered by VERMA, J. This judgment disposes of a bunch of matters com· prising of some writ petitions under Article 3:2 . of the Constitution of India and special leave petitions under Article 136 of the Constitution of India, all of which involve for decisjon certain common questions. The special leave petitions are directed against a common judgment of the Allahabad High Court dismissing some writ petitions in which the same questions were raised. In view of the decision of the High Court rejecting those contentions, the writ petitions were filed in this Court l directly for the same purpose. By one stroke, seemingly resorting to the Spoils System alien to our constitutional scheme, the Government of State ,of Uttar Pradesh has terminated by a general order the appointments of all Government Counsel (Civil, Criminal, Revenue) in all the districts of the State of U. P. w. e. f. 26. 2.

1990 and directed preperation of fresh panels to make appointments in place of the existing incumbents. This has been done by Circular G. O. No. D-284-Seven-Law-Ministry dated 6. 2. 1990, terminating all the existing appointments w. e. f. 28. 2. 1990, irrespective of the fact whether the term of the incumbent had expired or was subsisting. The validity of this State action is challenged in these matters after the challenge has been rejected by the Allahabad High Court. They have all been heard together since the common question ' KUMAR! SHRILEKHA v. STATE OF U. P. ! VERMA, l. ] 631 in all of them is the validity of the Circular G. O. No. D-284-Seven- Law-Ministry dated 6. 2. 1990 issued by the Government of State of Uttar Pradesh. Leave is granted in the Special Leave Petitions and the appeals are also heard on merits along with the Writ Petitions. · Broadly, two questions arise for decision by us in this bunch of matters.

These are: Is the impugned circular amenable to judicial review? ; and if so, is it liable to be quashed as violative of Article 14 of the Constitution of India, being arbitrary? The challenge in all these matters is to validity of G. O. No. D-284-Seven-Law-Ministry dated 6th February, 1990, from Shri A. K. l Singh, Joint Legal Remembrancer, Justice (Law Ministry) Section, Government of Uttar Pradesh, to all the District Magistrates of Uttar Pradesh with copy to all the District Judges of the State for information and necessary action. The main question for decision in these matters being the validity of this circular, it would be appropriate to quote the same in extenso. It reads as under: 1 "Subject:RENEWAL OF TENURE OF ALL THE EXISTING GOVERNMENT COUNSEL, CALLING OF NEW PANELS FOR NEW APPOINTMENT.

xxxx I have been directed to inform you on the subject mentioned above that the Administration has taken a decision to extend the tenure of all the Government Counsel, who are presently working, till 28th February, 1990 only and to immediately receive new panels from the District Magistrates for new appointments in their places. 2. I, therefore, have been directed to state that all the Governmen't Counsel, presently engaged for the work of Civil/Revenue/Criminal (including Anti-Dacoity) and Urban Ceiling may be permitted to work till 28. 2. 1990 only and for appointments in their place, Administration may send the new panels, after preparing. the same in following manner:- • • ' ' !. Separate single panal in each of the Civil side, Revenue - IIQ9,P,J ~μpp, 1 PC:-! t side, Criminal side (including Anti-Dacoity) and Urban ceiling siqe fixed for 12 qistricts, and separate sing! ~ p~nel in each of the courts, functioning at District anq Tehsil Headquarters, may be .

prepar~cl, lt may Pe enlisted therein the names of the wPrk zone, number pf courts related to it, the number of san9\ioned posts for Government Counsel and recommengeq names of the Counsel in terms of their seniprity. 2. It may be clearly mentioned in the panel which cPu! lsel i belong to Scheduled Caste, Scheduled Tribes, llackward Caste and Minority group. 3. The panels prepared for civil, revenue and urban ceiling ( side may contain the recommendations of names only three times of the presently sanctioned posts. 4. In the criminal side, five times of the names of the present sanctioned posts may be recommended. 5. The attested copies of Bio-Data of the Cgunsel recPIDmended, attested details of tpeir work '. KUMAR! SHRILEKHA v. STATE OF u.. P. [VERMA, J. I 659 Viewed in any manner, the impugned circular da~ed 6. 2. 90 is arbitrary.

It terminates all the appointments of Government Counsel in the districts of the State of Uttar Pradesh by an omnibus order, even· though these appointments were all individual. No common reason applicable to all of them justifying their termination in one stroke on a reasonable ground has been shown. The submission. on behalf of the State of Uttar Pradesh at the hearing that many of them were likely to be re-appointed is by itself ample proof of the fact t. hat there was total non-application of mind to the individual cases before issuing the general order terminating all the appointments. This was done in spite ; of the clear provisions in the L. R.

Manual laying down detailed procedure for appointment, termination and renewal of tenure and the req uirement to first consider the existing incumbent for renewal of his tenure and to take steps for a fresh appointment in his place only if the existing incumbent is not found suitable in comparison to more suitable persons available for appointment at the time of renewal. In the case of existing appointees, a decision has to be first reached about their non-suitability for renewal before deciding to take steps for making fresh appointments to replace them. None of these steps were taken and no material has been produced to show that any existing incumbent was found unsuitable for the office on objective assessment before the decision to replace all by fresh appointees was taken. The prescribed procedure laid down in the L. R. Manual which has to regulate exercise of this power was totally ignored. In short, nothing worthwhile has been shown on behalf of the State of U,P.

to support the impugned action as reasonable and non-arbitrary. The impugned circular must, therfore, perish on the ground of arbitrariness which is an available ground for judicial review in such a situation. ' In view of the above conclusion, all the existing appointees to the posts of Government Counsel in the districts throughout the State of U. P. , by whatever name called, governed by the impugned circular dated 6. 2. 1990, who were in position at the time of issuance of the circular, must continue in office and be dealt with in accordance with the procedure laid down in the L. R. Manual. Those Government Counsel, whose term had then expired or was to expire thereafter, would be considered for renewal of their tenure in the manner pr~scribed and steps for preparation of a fresh panel to replace them would be taken only if they are found unsuitable for renewal of their term as a result of an informed decision in the manner prescribed. The ,.

power of termination of any appointment during the subsistence of the "'· term available to the State Government shall also be available for exercise only in the manner indicated, wherever considere~ necessary. -'·'ii In short, the status quo ante as on 28. 2. 1990, on which date the impugned circular dated 6. 2. 1990 was made effective, will be restored and be maintained till change in any appointment is found necessary and is made in the manner prescribed. The fresh appointments, if any, made by the State Government in implementation of the impugned circular dated 6. 2. 1990, being subject to the validity of the circular and the result of these matters, would stand superseded in this manner. The State Government will implement this direction within two weeks of the date of this order.

In our view, bringing the State activity in contractual matters also within the purview of judicial review is inevitable and is a logical corollary to the stage already reached in the decisions of this Court so far. Having fortunately reached this point, we should not now turn back or take a turn in a different direction or merely stop there. In our opinion, two recent decisions in Mis Dwarkadas Marfatia and Sons, (supra) and Mahabir Auto Stores & Ors. , (supra) also lead in the same direction without saying so in clear terms. This appears to be also the trend of the recent English decisions. It is in consonance with our commitment to openness which implies scrutiny of every State action to provide an effective check against arbitrariness and abuse of power. We would much rather be wrong in saying so rather than be wrong in not saying so.

Non-arbitrariness, being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary, in whatever sphere, must be guided by reason and not humour, whim, c,aprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all power must be for public good instead of being an abuse of the power. } In view of the conclusion reached by us and the above direction restoring status quo ante as on 28. 2. 1990, we have not gone into individual matters brought before us. Some argument was advanced from both sides in W. P. No. 706 of 1990 (Km. Shrilekha Vidyarthi v. State of U. P. & Ors. ), wherein the fact of renewal of petitioner's tenure is disputed. It is unnecessary for us to go into that question also since the order, we are making, governs the case of all Government Counsel in the districts throughout the State of U. P. including that of the petitioner in this writ petition.

The subsequent rights of this petitioner also would be governed in the manner indicated above. If and when such a situation arises, it would be open to the parties to have the dispute, if any, adjudicated wherein the question of renewal of tenure, _).. claimed by the petitioner, can also be gone into. L '! KUMAR! SHRILEKHA v, STATE OF UP, [VERMA, l] (i61 Consequently, these appeals and writ petitions are all(lwecl, The ~ impugned circular G. O. No. D-284-Seven-Law'Illi11istry elated 6. 2. 1990, issued by the Government of State of U. P" is qu. ashed resulting in restoration of status quo ante as on 28:2. 1990, the date from which this circular was made effective. No costs. B R. S. S. Petitions and appeals allowed. -, U·\