Mahendra Kumar Mudgal vs State of U.P. and Others

P.C. Verma and S.K. Gupta, JJ.—On 6.2.2009, we dismissed the writ petition for the reasons to be given subsequently. Now the reasons are stated hereunder:

The petitioner was working as District Government Counsel (Criminal), Ghaziabad which shall in brevity be called as D.G.C. (Criminal) and by the impugned order dated 27.1.2008 the respondent No. 1 refused to renew the term of the petitioner as D.G.C. (Criminal), Ghaziabad. It was submitted by learned Counsel for the petitioner that District Judge, Ghaziabad had recommended the renewal of the term of petitioner but the respondent No. 1 mainly on the basis of the report of respondent No. 3 refused to renew the term of the petitioner which is illegal and against the provisions of L.R. Manual. It was further submitted that the impugned order is non-speaking as the same has been passed without assigning any valid reasons. Learned Counsel for the petitioner has relied upon the judgment of Apex Court rendered in the case of State of U.P. and Anr. v. Jauhari Mal 2004 (TV) SCC 714 : 2004 (5) AWC 4609 (SC) and stressed that the'' opinion of the District Judge should be given primacy. It is further submitted that renewal of the D.G.C. (Criminal) is not dependent upon the sweet will of the respondents and they cannot be removed arbitrarily without any cogent and justifiable reasons and lastly it was contended that the report of the respondent No. 3 is tainted with malice and the impugned order is . illegal and unreasonable and is hit by Article 14 of the Constitution of India.

On the other hand, learned standing counsel appearing on behalf of respondents has supported the impugned order and has referred to the report of the respondent No. 3 dated 5.7.05. It was also stated that apart from the case referred to in the said report dated 5.7.05, there were numerous other complaints against the petitioner and few documents to this effect have been brought on record alongwith the counter-affidavit. For ready reference para 6 of the counter-affidavit filed on behalf of respondent No. 3 is quoted as follows:

That admittedly the petitioner was working as D.G.C. (Criminal), Ghaziabad and his term was renewed upto 18.12.2005 but prior to his removal some serious complaints were received against the petitioner regarding the working as D.G.C. (Criminal). One Sajeed Hussain has complained that in Case Crime No. 235/2004 u/s 147/148/149/302, I.P.C. the accused persons has succeeded in getting bail from the Court of District and Sessions Judge, Ghaziabad dated 7.3.2005. It has been complained that virtually the D.G.C. (Crl.) has failed to find out due to the extraneous consideration that the accused person''s ''case is entirely different from that of Akhalak who has been granted bail by the Hon''ble Court merely on the ground that he is 70 years old person. Mr. Hussain has forwarded a copy of the F.I.R. alongwith the copy of the order of the Hon''ble High Court as well as Sessions Judge, Ghaziabad. In fact a bare perusal of the order of the High Court dated 2.2.2005 makes it clear that the Hon''ble Court has taken the age factor while granting the bail to Mr. Akhalak as such the parity cannot be claimed or granted. During the course of inquiry, it transpired that the age of the accused Ashraf is 30 years, Zulfikar is 35 years and Rashid 20 years only as such it was very much clear that at any cost these accused persons cannot get the advantage of the order of the Hon''ble High Court inspite of this fact it appears that the said fact was not brought to the notice of the learned Sessions Judge, Ghaziabad and a letter was issued to the petitioner on 17.5.2005 to explain the position with regard to the situation in which the bail was granted. Unfortunately instead of taking any corrective measure the petitioner had tried to justify the order granted by the learned Sessions Judge, Ghaziabad and has not moved any application immediately for cancellation of the bail. For the sake of convenience of this Hon''ble Court the copy of the complaint filed by Sajeed Hussain and letter dated 17.5.2005 written by the respondent No. 3 and reply filed by the petitioner dated 20.6.2005 are being filed herewith collectively and marked as Annexures-CA1, 2 and 3.

Learned standing counsel further stated that the petitioner was working as D.G.C. (Criminal) and lastly his term was renewed up to 8.12.2005 but prior to the said date some serious complaints were received against the petitioner regarding his working as D.G.C. (Criminal). One Rashid Husain had complained that in Case Crime No. 235 of 2004 under Sections 147, 148, 149 and 302, I.P.C. accused person succeeded in getting the bail from the Court of District and Sessions, Ghaziabad on 7.5.2005. It was further stated that the petitioner failed to point out due to extraneous consideration that the case of the accused persons were entirely different from that of Akhalak who had been granted bail by this Court mainly on the ground that he was 70 years old person. It was further submitted that the complainant had forwarded a copy of the F.I.R. alongwith a copy of the order of this Court as well as of Sessions Judge, Ghaziabad. The bare perusal of the order of this Court made it abundantly clear that this Court had taken the age factor into consideration while granting bail to Akhalak, as such parity could not have been claimed and granted. He further submitted that on the basis of aforesaid complaint explanation vide letter dated 17.5.2005 was called for from the petitioner and during the course of an enquiry it transpired that the age of accused Ashraf, Julfikar and Rashid was only 30, 35, 20 years respectively and such at no cost those accused persons could have got the benefit of the order of this Court, but the said fact was not brought to the notice of the Sessions Judge, Ghaziabad.

The respondent No. 3, after considering the explanation of the petitioner did not find it satisfactory and recommended the State Government for necessary action. For ready reference the report of the District Magistrate dated 5.7.2005 forwarded by it to respondent No. 1 is quoted below:

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eS vkidk /;ku tuin xkft;kckn esa ftyk ''kkldh; vf/koDrk �QkStnkjh� Jh egsUnz dqekj eqnxy ds dk;Zdykiksa dh vksj vkd`"V djuk pkgwaxkA

tuin xkft;kckn ds Fkkuk ckcwx< eas iathd`r eq0 vi0 la0 235@04 /kkjk 147@149@@149@302] Hkk0n0 fo0 ds ,d vfHk;qDr v[kykd dh tekur ek0 mPp U;k;ky; bykgkckn us vius vkns''k fnukafdr 2-2-2005 }kjk bl vk/kkj ij nh fd vfHk;qDr v[kykd 70 o"kZ dh vk;q dk gS A vr% o`) gksus ds dkj.k mldk ekeyk vfHk;ksx ds vU; vfHk;qDrksa ls fHkUu gSA

ek0 mPp U;k;ky; }kjk ikfjr mijksDr lanfHkZr vkns''k fnukafdr 2-2-2005 ds mijkUr vfHk;ksx ds ''ks"k vfHk;qDrksa v''kjQ] tqfYQdkj ,oa jkf''kn }kjk ftyk ,oa l= U;k;k/kh''k xkft;kckn us vius vkns''k fnukafdr 7-3-2005 }kjk bl vk/kkj ij Lohdkj dj fy;k x;k fd bu vfHk;qDrksa v''kjQ] tqfYQdkj ,oa jkf''kn dk izdj.k vfHk;qDr v[kykd] ftldh tekur ek0 mPp U;k;ky;] bykgkckn }kjk ek= o`) gksus ds dkj.k iznku dh x;h Fkh ds leku gS A ftls ''kkldh; vf/koDrk] xft;kckn Jh egsUnz dqekj eqnxy }kjk U;k;ky; laKku esa ;g rF; ugh yk;k x;k fd vfHk;qDr v''kjQ dh vk;q 30 o"kZ] vfHk;qDr tqfYQdkj dh vk;q 35 o"kZ o vfHk;qDr jkf''kn dh vk;q 20 o"kZ gS A bl izdkj Jh eqnxy }kjk bu vfHk;qDrks ds tekur izkFkZuk i=ks ij lquokbZ ds le; bu vfHk;qDrksa dh vk;q ds lEcU/k esa egRoiw.kZ rF; U;k;ky; ds laKku esa ugh yk;s x;s ,oa bu rF;ks dks Nqik;k x;k] ftlds dkj.k bu rhuks vfHk;qDrks dk izdj.k vfHk;qDr v[kykd ds leku ekurs gq, bu rhuks vfHk;qDrks dks lekurk ds vk/kkj ij tekur iznku dj nh gS A ;g rF; Li"V gksus ij fd vfHk;qDrx.k v''kjQ] tqfYQdkj ,oa jkf''kn dk izdj.k mudh vk;q ds vk/kkj ij vfHk;qDr v[kykd fd izdj.k ls fHkUu gS] Jh eqnxy }kjk bu rhuks vfHk;qDrks dh tekur fujLrhdj.k dh Hkh dksbZ dk;Zokgh ugh dh xbZ ,oa esjs vkns''k fnukad 17-5-2005 }kjk fLFkfr Li"V djus ds izR;qRrj esa mUgksus vius i= fnukafdr 20-6-2005 esa vius }kjk fd;s dk;Z dsk mfpr Bgjk;k gSA

mijksDr ds lEcU/k es Jh lkftn gqlsu] ftyk v/;{k] lektoknh ikVhZ] xkft;kckn }kjk essjs lEeq[k fyf[kr f''kdk;r esa mfYyf[kr rF; mijksDr vk/kkjks ij lR; ik;s x;s A vr% vkils vuqjks/k gS fd d`i;k mijksDr vafdr rF;ks ds ifjisz{; esa mfpr dk;Zokgh djkus dk d"V djsA

It is submitted by learned standing counsel appearing on behalf of the respondents that the petitioner was also involved in the year 1991 in a contempt case and referred to the copy of the judgment (C60) whereby the Division Bench of this Court after assurance and apology tendered by the petitioner to maintain the dignity of the Court had discharged the contempt notice.

It was further submitted that the report of respondent No. 3 dated 5.7.05 was forwarded only after considering the explanation of the petitioner and further contended that the work of the petitioner was so objectionable that during the period when he was working on the strength of the interim order of this Court, his conduct was prejudicial to the State and there was a bona fide suspicion about his integrity. It was a case of loss of confidence. Specific reference was also made to the bail order of Vikas Yadav S/o D. P. Yadav, Manis Pandit alias Pappu. It was further argued that the past history of the petitioner was also not unblemished and on the earlier occasion also his tenure as D.G.C. (Criminal) was not renewed.

Heard learned Counsel for the petitioner and learned standing counsel appearing on behalf of respondents and perused the record and considered the facts and circumstances of the case.

It appears that the term of the petitioner has not been renewed basically on the report of the District Magistrate dated 5.7.2007 wherein he had highlighted lack of integrity and efficiency of the petitioner and referred to one specific case u/s 302, I.P.C. wherein because of the petitioner, bail was granted to the accused and before recommending his removal, explanation was also called for from the petitioner which was not found to be satisfactory and sufficient. In the counter-affidavit few other instances have been highlighted to create doubt about his integrity and efficiency. It has been submitted by the standing counsel that despite knowing well that the bail could not be granted to Ashraf and others on the ground of parity, even then no immediate action was taken by the petitioner for cancellation of the bail. The State Government after considering the report of the District Magistrate and District Judge was not satisfied with the performance and conduct of the petitioner and consequently refused to extend his term. It is true that recommendation of the District Judge has to be given weightage but it cannot be said that the respondent No. 1 is bound to accept it blindly. State Government cannot act as a rubber stamp to put a seal on every recommendation given by the District Judge without examining it.

Learned Counsel for the petitioner has submitted that the impugned order is a non-speaking order containing no reasons. Simply because no reasons were assigned in the impugned order, will not render the impugned order erroneous provided that sufficient reasons are available on record. In the present case, counter-affidavit filed by the State clearly demonstrates that sound and cogent reasons were available on record which prompted the respondent No. 1 to refuse the renewal of the term of the petitioner. State Government keeping in view the totality of circumstances found it proper not to renew the term of the petitioner as his performance was not found satisfactory and his integrity was also found doubtful.

It has also been argued by learned standing counsel that normally in the engagement of the counsel if there is any adverse entry against the counsel, reasons are not incorporated in the impugned order for the reason that this may not cast a stigma upon the counsel. Engagement of counsel is a professional engagement and mainly depends upon the trust and confidence which the State has in the person concerned and the bare perusal of the record goes to show that there were some serious allegations against the petitioner regarding his role in not contesting the bail matters properly and it appears that the said material was taken into consideration to arrive at the conclusion but the same was not mentioned in the impugned order so that the future prospect of the petitioner who has to work as a private counsel after his non-renewal as D.G.C. (Criminal) be not jeopardized.

The Apex Court has laid down certain parameters to exercise power of judicial review which finds discussion in paragraph 28 of the decision in the case of Johri Mal (supra). The extract of the said paragraph reads as under:

(i) Courts, while exercising the power of judicial review, do not sit in appeal over the decisions of administrative bodies ;

(ii) A petition for a judicial review would lie only on certain well defined grounds ;

(iii) An order passed by an administrative authority exercising discretion vested in it, cannot be interfered in judicial review unless it is shown that exercise of discretion itself is perverse or illegal ;

(iv) A mere wrong decision without anything more is not enough to attract the power of judicial review; the supervisory jurisdiction conferred on a Court is limited to seeing that the Tribunal functions within the limits of its authority and that its decisions do not occasion miscarriage of justice; and

(v) The Courts cannot be called upon to undertake the Government duties and functions. The Court shall not ordinarily interfere with a policy decision of the State. Social and economic belief of a Judge should not be invoked as a substitute for the judgment of the legislative bodies.

The aforesaid parameters laid down by the Apex Court in Johri Mal (supra), persuades us to reject the plea of the petitioner. The entire material available on record does not suggest that the exercise of discretion by the State Government was either perverse or illegal and further it cannot be said that the impugned order is unjust, unreasonable or unfair. The L. R. Manual clearly state that the appointment of Public Prosecutors or D.G.C. (Crl.), would be professional in nature. It is beyond any cavil that the holder of an office of the District Government Counsel does not hold a civil post. By holding a post of D.G.C. or the Public Prosecutor, no status is conferred on the incumbent. The question as to whether the State Government is satisfied with the performance of its counsel or not is primarily a matter between it and the counsel. The incumbent has no legal enforceable right as such. The Courts normally would not go into the record with a view to ascertain as to what impelled the State not to renew the tenure of District Government Counsel (Criminal).

The report dated 5.7.05 of the District Magistrate, clearly shows that the petitioner had lost the trust and confidence that the prosecution had placed in him and in such circumstances it is not desirable to assign any such task to such person. Learned standing counsel appearing on behalf of State elucidating his argument has further stated that on the submission of the report dated 5.7.2005 by the respondent No. 3 for removal of the petitioner, no immediate action was taken by the State Government basically due to the reason that the term of the petitioner as D.G.C. (Criminal) was to expire on 18.12.2005 and in order not to jeopardize the future prospects of the petitioner, no immediate order for removal of the petitioner from the office of D.G.C. (Criminal) was passed.

All what we have said above is sufficient to dismiss the petitioner, but before parting with the judgment we consider it worthwhile to quote the following observation made by the Apex Court in Johri Mal (supra):

For judging the arbitrariness of the order, the test of unreasonableness may be applied. The action of the State, thus, must be judged with extreme care and circumspection. It must be borne in mind that the rights of the Public Prosecutor or the District Government Counsel do not flow under a statute. Although discretionary powers are not beyond the pale of judicial review, the Courts, it is trite, allow the public authorities sufficient elbow space/play in the joints for a proper exercise of discretion.

In view of the above, we do not find any illegality or infirmity in the impugned order passed by respondent No. 1.

In the result this writ petition is accordingly dismissed. No order is passed as to costs.