Bhola Nath Shukla and Others Vs State of U.P. and Others

M. Katju, J.@mdashHeard learned Counsel for the parties.

2. This writ petition has been filed against the impugned order dated 6.9.1996 Annexure 6 to the writ petition by which the Petitioners'' appointment as Government Panel Lawyers in the district of Allahabad have been cancelled.

3. The Petitioner No. 1, Bhola Nath Shukla was appointed as Panel Lawyer in the District Court, Allahabad in 1982 and had continued to function as such till the date of impugned order dated 6.1.1996. True copy of his appointment order is Annexure 1A to the writ petition. It is alleged in paragraph 3 of the writ petition that his performance and conduct had been excellent and nothing adverse has been reported against him and this fact has not been denied in paragraph 11 of the counter-affidavit. Petitioners No. 2 and 3, R. B. Lal and Ashok Kr. Chaurasia were appointed on 6.2.1990 vide Annexure 2 and the averment in paragraph 6 that their work had been excellent is also not denied in paragraph 11 of the counter-affidavit. The Petitioner No. 1, Girish Chandra was Panel Lawyer from 13.1.1982 vide Annexure 3 to the writ petition and the allegation in paragraph 3 of the writ petition that his work has been excellent has not been denied in paragraph 11 of the counter-affidavit. Petitioner No. 5, Shyam Jee Tandon was appointed in 1983 vide Annexure 4 to the writ petition and the averment in paragraph 10 of the writ petition that his work had been excellent has not been denied in paragraph 11 of the counter-affidavit. It is alleged in paragraph 11 of the writ petition that all the Petitioners had been continuously discharging their duties as Panel Lawyers from the date of their appointments, and their work, performance and integrity had always been upto the mark and nothing adverse had ever been reported against them. In paragraph 17 of the writ petition it is alleged that the District Magistrate and the District Judge, Allahabad had recommended their names for renewal and this averment has not been denied in paragraph 14 of the counter-affidavit. However, the Petitioners were surprised to learn about the order dated 6.9.1996 that they have been removed from the panel of Government lawyers. The Petitioners made a representation dated 13.9.1996 before the District Magistrate, Allahabad vide Annexure 7 and the District Magistrate has sent that representation to the State Government but to no avail.

4. In the counter-affidavit the ground for removing the Petitioners is that they had not been appointed by the State Government.

5. In my opinion, it is not open to the Respondent to take up this plea after such a long time that the Petitioners were not appointed by the State Government. As noted above, some of the Petitioners were appointed as far back. As in 1982, and since then have continuously handled Government cases, and it is surprising that suddenly now the stand is being taken by the Respondents, that the Petitioners'' initial appointment was invalid.

6. In my opinion, if the Petitioner''s appointment was made only one or two years back. I can understand the objection that their appointments were invalid because they were not made by the State Government but to take up such a plea after a lapse of 14-15 years is wholly arbitrary and is hence violative of Article 14 of the Constitution. I need not go into the question whether the initial appointments of the Petitioners were made by the State Government or not, because even if they were not so made the State Government, by permitting them to function for so long the State Government has acquiesced in their appointments or has impliedly ratified them.

7. It has been held by the Supreme Court in Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, , that a public element is attached to the post of Government counsel, and hence their removal if arbitrary violates Article 14 of the Constitution. It is settled law after the landmark decision of the Supreme Court in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, , that arbitrariness violates Article 14 of the Constitution.

8. In State of U.P. Vs. Ramesh Chandra Sharma and others, , the Supreme Court held that the State action of refusing renewal of appointments of District Government Counsels can be quashed if it is arbitrary.

9. Learned standing counsel relied on the decision of the Supreme Court in State of U.P. and others Vs. U.P. State Law Officers Association and others, . Learned standing counsel urged that the decision in State of U.P. v. U.P. State Law Officers Association (supra) overruled the judgment in the case of Shrilekha Vidhyarthi (supra). I do not agree with this submission. Both these decisions are of two Judge Benches of the Supreme Court, and one two Judge Bench decision cannot overrule another two Judge Bench decision. Only a larger Bench can overrule the decision of a smaller Bench, and hence this argument of the learned standing counsel cannot be accepted. In my opinion the decision in Slate of U.P. v. U.P. State Law Officers Association (supra) has no relevance to the present case because that decision pertains to the appointments of Government Counsels in the High Courts, whereas Shrilekha Vidhyarthi''s case (supra) and Ramesh Chandra Sharma''s case (supra) pertain to the appointment of Government Counsels, in the District Court. Since we are concerned with the appointment of Government Counsels in District Court the decision in State of U.P. v. U.P. Slate Law Officers Association (supra) has no relevance to the present case.

10. Learned standing counsel then relied on the decision of the Supreme Court in State of U.P. Vs. U.P. Govt. Counsel (Crl.) Welfare Assocn., . This is also a decision of a two Judge Bench of the Supreme Court pertaining to appointments in the ,High Court, and hence this decision also cannot be taken to overrule the decision of the Supreme Court in Shrilekha Vidyarthi''s case (supra) or in Ramesh Chandra Sharma''s case (supra). The decision in the aforesaid case only follows the decision in State of U.P. v. U.P. State Law Officers Association (supra) which I have already held to be distinguishable because it pertains to the appointments of Government Counsels in the High Courts and not in District Courts. The appointments of Government Counsels in the High Court and the appointment of Government Counsels in the District Courts are governed by different rules, and hence the decisions regarding appointments of Government Counsels in the High Court have no relevance to the present case.

11. There is no allegation that the working of the Petitioners was in any way defective. There is no allegation that the Petitioners did not prepare their cases properly or that they did not attend to the cases of the State, or that they colluded with the opposite parties. Rather the averments in the writ petition are that the work of the Petitioners was always excellent and their integrity was without any blemish, and these allegations have not been controverted in the counter-affidavit and hence have to be accepted as correct. Hence the action of the Respondents is wholly arbitrary.

12. In the circumstances this writ petition is allowed. The impugned order dated 6.9.1996 is quashed. No order as to costs.