/ Assistant District Government Counsel (Criminal) posts by the State Government is a professional engagement of an advocate.){kind=link}
The Allahabad High Court while dismissing the petition said that appointment to the District Government Counsel (Criminal)/ Assistant District Government Counsel (Criminal) posts by the State Government is a professional engagement of an advocate. It is not a civil post. The appointee does not have any right for renewal or reappointment on the post of D.G.C/A.D.G.C (Crl). Such professional engagement can be terminated on either side without notice and without assigning any reason.
The Division Bench of Justice Salil Kumar Rai and Justice Surendra Singh-I passed this order while hearing a petition filed by Santosh Kumar Dohrey.
The petition has been filed by the petitioner against the order dated 30.07.2014 passed by respondent no 4, District Magistrate, Jhansi.
By the impugned order, the respondent no 4 ordered the petitioner that since his engagement for working as Assistant District Government Counsel (Criminal) has expired on 29.07.2014, hence, he should hand over the charge of aforesaid post in the forenoon of 30.07.2014 to District Government Counsel (Criminal).
Averment has been made that the petitioner was engaged by the government on the post of Assistant District Government Counsel (Criminal) vide G.O dated 09.09.2008 issued by the Deputy Secretary, Government of U.P till the period of 02.09.2009.
The petitioner performed the duty of his post efficiently and vide order dated 29.07.2011 passed by Nyay Anubhag-3 (Niyuktiyan), he was further engaged for 3 years or till the age of superannuation of sixty years, whichever is earlier. Before expiry of the period of his re-appointment, the petitioner on 17.04.2014 submitted application for renewal in Proforma-9 to respondent no 4, District Magistrate, Jhansi.
The District Judge, Jhansi, vide letter dated 26.05.2014 forwarded his recommendation to the respondent no 4, District Magistrate, Jhansi for renewal. On the basis of recommendation of District Judge, Jhansi, the District Magistrate, Jhansi vide letter dated 09.06.2014 forwarded his recommendation for renewal to Special Secretary (Legal Remembrancer), Government of UP.
The government has not passed any order on the proposal for renewal of his term because vide order dated 10.07.2014, status quo order was passed by Allahabad High Court, Lucknow Bench.
The respondent no 5, District Government Counsel (Criminal), Jhansi vide letter dated 30.07.2014 sought guidance from the respondent no 4, District Magistrate, Jhansi for the functioning of petitioner on the ground that his tenure has expired on 29.07.2014 and no renewal was done by the government.
An influential leader of the ruling party sent a letter dated 30.07.2014 to the respondent no 4, District Magistrate, Jhansi, asking him to discharge the petitioner from performing his duties as his tenure has expired on 29.07.2014. The District Magistrate, Jhansi, has passed the impugned order dated 30.07.2014 under the pressure of aforesaid leader of the ruling party.
The petitioner submitted his representation to the respondent no 4 for withdrawing his impugned order dated 30.07.2014 by which he was relieved from performing his duties on the post of A.D.G.C (Crl) but the impugned order was not withdrawn. The District Magistrate issued on 12.06.2014 advertisement for inviting applications for the post of Assistant District Government Counsel (Criminal).
It has been submitted by the counsel for the petitioner that the respondent no 4, District Magistrate, Jhansi, has no authority to relieve him from his post of A.D.G.C (Crl) since a proposal for renewal for his post is pending with the government. Vide order dated 14.08.2014, the Division Bench of the High Court suspended the impugned order dated 30.07.2014 passed by respondent no 4 and permitted the petitioner to continue on his post and be paid salary/perks.
It has been next submitted that the High Court in Misc Bench, Ajay Kumar Sharma and another Vs State of U.P and others, had directed the State Government to maintain status quo regarding the continuance of District Government Counsel (Criminal). Therefore, the impugned order passed by respondent no 4 being against the afore-mentioned stay order passed by the High Court, is illegal and liable to be quashed.
The Court noted that,
The petitioner was professionally engaged to act as A.D.G.C (Crl), Jhansi vide G.O dated 09.09.2008 issued by the Deputy Secretary, Government of U.P till the period of 02.09.2009. He was re-appointed from 29.07.2011 to 29.07.2014 for a period of 3 years. The petitioner applied on 17.04.2014 for renewal in Proforma No 9 and his application was forwarded by the District Magistrate, Jhansi on 09.06.2014 with the recommendation of District Judge, Jhansi dated 26.05.2014.
In between, he was removed from the post vide impugned order dated 30.07.2014 passed by the District Magistrate, Jhansi. The aforesaid order of the District Magistrate, Jhansi was suspended by the order of the High Court dated 14.08.2014. Later on, the District Magistrate, Jhansi vide letter dated 15.09.2014 withdrew the aforesaid order relieving the petitioner from the post of Assistant District Government Counsel (Criminal).
The Court observed that,
From the above discussion of the provisions regarding appointment of the District Government Counsel (Criminal)/ Assistant District Government Counsel (Criminal) as given in L.R Manual, Section 24 Cr.P.C and the judgements of the Apex Court, it is conspicuous that appointment to the aforesaid posts by the State Government is a professional engagement of an advocate. It is not a civil post. The appointee does not have any right for renewal or reappointment on the post of D.G.C/A.D.G.C (Crl).
Such professional engagement can be terminated on either side without notice and without assigning any reason. By holding a post of District Counsel or public prosecutor, no status is conferred on the incumbent. The incumbent has no legal enforceable right as such. The action of the State in not renewing the tenure can be subjected to judicial scrutiny inter-alia on the ground that the same is arbitrary and violates Article 14 of the Constitution of India. The incumbent cannot claim extension or renewal of the term of the post held by him. The application of the petitioner for his renewal on the post of A.D.G.C (Crl) is pending before the government.
“Admittedly, the State Government could not take any decision regarding renewal of the post of petitioner as a Division Bench of this Court vide order dated 10.07.2014, had directed the State Government to maintain status quo as it existed on that date regarding continuance of existing D.G.C/A.D.G.C (Crl).
Under the facts and circumstances of the petition and the law laid down by the Apex Court in the aforesaid decisions, there is no ground to issue mandamus to the respondent nos 1 and 2 regarding renewal of the petitioner to the post of A.D.G.C (Crl) held by him”, the Court further observed while dismissing the petition.