THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.4575 of 2013 14.03.2013 The Bar Association, Junior Civil Judge's Court, Alampur rep., by its President Sri H. Shanthi Mallappa, aged: 63 years, R/o Vaddepally Village & Mandal, Mahabubnagar District. The Govt.of A.P. rep.,by its Secretary,Legislative Affairs &Justice Department, Secretariat, Hyderabad and four others. Counsel for the petitioner: Sri Cherukuri Yadagiri. Counsel for respondents 1 & 2: G.P. for Home Counsel for respondent No.3 &4: Sri Y. Rama Rao (SC for APHC) Counsel for respondent No.5: Sri J.U.M.V. Prasad <GIST: >HEAD NOTE: ?Citations: 1) AIR 1966 SC 1942 2) AIR 1955 SC 549 3) AIR 1967 SC 1910 4) (1987) 4 SCC 738 5) (1979) 3 SCR 1014 6) (1983) 4 SCC 582 7) AIR 1975 SC 984 8) AIR 1975 SC 1331 9) (2009) 13 SCC 758 10) (2008) 7 SCC 639 11) (2013) 2 SCC 177 12) (2007) 9 SCC 582 13) AIR 1970 Madras 63 14) (1951) 342 US 98 15) (2003) 4 SCC 579 16) (1988) 4 SCC 59 17) (1977) 1 SCC 133 18) (1996) 2 Crimes 358 19) AIR 2005 Bom.431 20) (1993) 3 SCC 552 ORDER:
The Bar Association, of the Court of the Junior Civil Judge, Alampur, (represented by its President), has filed this Writ Petition questioning the appointment of the 5th respondent as an AGP. The relief sought for in this Writ Petition is to declare the action of the 1st respondent in appointing the 5th respondent as an Assistant Government Pleader (AGP) in the Court of the Junior Civil Judge, Alampur, vide G.O.Rt.No.25 dated 8.1.2013, as arbitrary, illegal, discriminatory, and in violation of G.O.Ms. No.187 dated 6.12.2000 and Article 14 of the Constitution of India.
Facts, to the extent relevant, are that the District Collector, Mahabubnagar informed the District & Sessions Judge, Mahabubnagar, vide letter dated 16.12.2011, that the term of the then AGP in the Court of Junior Civil Judge, Alampur was to expire on 10.2.2012, and a panel of five advocates with their bio-data be sent for submission of proposals to the Government to avoid continuation of law officers beyond their term. The District Collector sent a reminder on 27.01.2012 to the same effect. As the term of the then Assistant Government Pleader expired on 10.02.2012, the District Collector kept the Assistant Government Pleader for the Junior Civil Judge's Court, Gadwal as the in-charge Assistant Government Pleader for the Junior Civil Judge's Court, Alampur. In the meanwhile, the District & Sessions Judge, Mahabubnagar, vide memo dated 23.12.2011, requested the Junior Civil Judge, Alampur to send a panel of five advocates for appointment as AGP to his Court, in the proforma enclosed, after considering the names of eligible advocates from OC, BC, SC, ST and women categories i.e., following the rule of reservation. The District Judge also directed that the bio-data of the said advocates (format enclosed) be obtained and forwarded to him. The Junior Civil Judge, Alampur, vide letter dated 24.1.2012, submitted a panel of five advocates in the prescribed proforma, along with their bio data. Of the five advocates in the panel, three belonged to the open category, and two to the B.C. 'D" category. The 5th respondent is from the open category. The proforma prescribed, for obtaining the bio-data, does not require the applicant to furnish information regarding his antecedents or whether any criminal cases are pending against him.
The District & Sessions Judge, vide letter dated 26.03.2012, informed the District Collector that she was sending a panel of five advocates, along with their bio-data and other particulars as required under G.O.Ms. No.187, Law Department, dated 06.12.2000, for appointment to the post of Assistant Government Pleader in the Court of the Junior Civil Judge, Alampur, in the proforma enclosed, after considering the names of advocates belonging only to OC and BC advocates as envisaged in G.O.Ms. No.187 dated 06.12.2000 as there was no SC/ST and women advocates. Along with the letter, a statement furnishing particulars of the panelists, and their bio-data, was enclosed. The name of the 5th respondent is shown at serial No.4 in the said letter. The District Collector vide letter dated 02.07.2012, while forwarding a copy of the panel of five advocates along with their bio-data form and other particulars received from the District Judge, requested the Superintendent of Police, Mahabubnagar to enquire into the character and antecedents of the advocates, and send a verification report in the matter immediately. The Superintendent of Police, vide letter dated 01.08.2012, informed the District Collector that an enquiry was caused in respect of the candidates for appointment as Assistant Government Pleader for the Junior Civil Judge's Court, Alampur, which revealed that the said candidates had not come to any adverse notice. The District Collector, thereafter, addressed a letter to the Government on 31.08.2012 forwarding the panel of five advocates for appointment as Assistant Government Pleader for the Junior Civil Judge's Court, Alampur as recommended by the District & Sessions Judge. He also forwarded the bio-data of the panelists, and the report of the Superintendent of Police, Mahabubnagar on verification of their character and antecedents. He requested the Government to consider any one of the advocates for appointment as Assistant Government Pleader for the Junior Civil Judge's Court, Alampur. Thereafter the Government, vide G.O.Rt. No.25 dated 08.01.2013, appointed the 5th respondent as the Assistant Government Pleader for the Junior Civil Judge's Court, Alampur, to look after the civil cases, on behalf of the Government, for a period of three years from the date of assumption of charge of the post or till termination of services whichever is earlier. The District Collector, vide letter dated 12.2.2013, informed the District & Sessions Judge that the 5th respondent was appointed as the AGP in the Court of the Junior Civil Judge, Alampur. The 5th respondent, vide letter dated 15.2.2013, informed both the District Collector and the District & Sessions Judge that he had assumed charge as the AGP in the Court of the Junior Civil Judge, Alampur. The President of the Bar Association, Alampur informed the District Judge, vide letter dated 28.1.2013, that criminal cases were pending against the 5th respondent. Copies of the charge sheets filed in those criminal cases were forwarded along with the said letter. The District and Sessions Judge, vide letter dated 8.2.2013, directed the Junior Civil Judge, Alampur to submit her remarks on the complaint petition received from the Bar Assocaition by return of post. The Junior Civil Judge, vide letter dated 14.2.2013, informed the District and Sessions Judge that two criminal cases were filed against the 5th respondent i.e., C.C. No.38 of 2008 filed by Sri Laxmaiah, the then Superintendent of the Junior Civil Judge's Court, Alampur for offences under Section 353 and 504 IPC, and STC No.24 of 2008 filed by Sri T. Narayana Reddy for offences under Sections 504 and 506 IPC. The Junior Civil Judge further informed that STC No.24 of 2008, was transferred, along with STC No.25 of 2008, (filed by the 5th respondent against Sri T. Narayana Reddy and Sri Laxmaiah), for offences under Sections 504 and 506 IPC to the Court of the Special Judicial Magistrate of First Class, Prohibition and Excise, Mahabubnagar on 28.4.2012.
It is the petitioner's case that several criminal cases are pending against the 5th respondent; Sri Laxmaiah, the Superintendent of the Junior Civil Judge Court, Alampur, had filed a criminal case, (registered as Crime Nos.44 of 2007 dated 3.11.2007 under Section 353 and 504 I.P.C. in Alampur Police Station), alleging that the 5th respondent had assaulted him, caused obstruction to his official duties, and had abused him in filthy language; the police had arrested and produced the 5th respondent before the Judicial Magistrate of First Class, Alampur who sent him to judicial custody; the Alampur police had, thereafter, filed a charge sheet in C.C. No.38 of 2008 before the Judicial Magistrate of First Class, Alampur; the District and Sessions Judge, Mahabubnagar had transferred C.C. No.38 of 2008 to the Court of the Special Judicial Magistrate of First Class (Prohibition & Excise), Mahabubnagar, and the matter is coming up for trial; the 5th respondent had also attacked Sri T. Narayan Reddy, a senior advocate, for which the latter had filed a criminal case in STC No.24 of 2008 before the Judicial Magistrate of First Class, Alampur; the said case was subsequently transferred to the Special Judicial Magistrate of First Class (Prohibition & Excise), Mahabubnagar, and is coming up for trial; the 5th respondent, in his bio-data, suppressed the fact that criminal cases are pending against him; the Junior Civil Judge, Alampur, without causing an enquiry into the antecedents of the 5th respondent, had recommended his name, along with others, for the post of AGP; there were several other meritorious candidates eligible for the post of AGP having a clean record, and not having any criminal cases pending against them; the District and Sessions Judge, after obtaining the recommendations of the Junior Civil Judge, Alampur, had forwarded the panel to the District Collector; the process, whereby the District Collector and the District and Sessions Judge had obtained the panel from the Junior Civil Judge, Alampur, was illegal and contrary to Rule 5(1) of G.O.Ms. No.187 dated 6.12.2000; and, though the petitioner had submitted a representation dated 28.1.2013 informing the respondents that the 5th respondent had suppressed the criminal cases pending against him and had obtained appointment, no action was taken by respondents 1 to 3 against him.
In the counter-affidavit filed on behalf of the 1st respondent, the Law Secretary to the Government submits that the District Collector had, in his letter dated 31.08.2012, furnished the names of five advocates in consultation with the District & Sessions Judge for appointment as Assistant Government Pleader for the Junior Civil Judge's Court, Alampur for a period of three years; the name of the 5th respondent was at Sl. No.4 in the said panel; the Superintendent of Police, Mahabubnagar, in his letter dated 01.08.2012, had reported to the District Collector, Mahabubnagar that "the empanelled advocates had not come to any adverse notice either politically, criminally, communally or otherwise as per records of local police stations in which jurisdiction the candidates are staying/residing"; on receipt of the panel from the District Collector, the law department had gone through the panel carefully, had processed the file as per the instructions issued in G.O.Ms. No.187 dated 06.12.2000, and had appointed the 5th respondent as the Assistant Government Pleader for the Junior Civil Judge's Court, Alampur basing on the antecedent report of the Superintendent of Police, Mahabubnagar; the 5th respondent was appointed as the Assistant Government Pleader for the Junior Civil Judge's Court, Alampur vide G.O.Rt. No.25, dated 08.01.2013; three weeks, after the G.O was issued, the President, Advocates Bar Association, Alampur, by way of his representation dated 28.01.2013, informed that criminal cases were pending against the 5th respondent; he requested that the matter be enquired into, and another advocate be appointed as the Assistant Government Pleader by calling for a fresh panel or to consider the other empanelled advocates, whose names were already included along with the 5th respondent; the said petition was received on 12.02.2013; while the petition was under process, the Writ Petition was filed in this Court; suppression of criminal cases against the 5th respondent had come to the notice of the Government after G.O.Rt. No.25 dated 08.01.2013 was issued; there is no violation of rules/instructions/suppression of facts in the matter; a report has been called for from the concerned regarding the wrong antecedent report; and, after receipt thereof, suitable steps would be taken as per rules.
In his counter-affidavit the 2nd respondent - District Collector would submit that the District Judge had, vide letter dated 23.6.2012, sent a panel for appointment as an AGP, which included the name of the 5th respondent; the report of the District Judge, and the bio-data enclosed thereto, of the panelists, was sent to the Superintendent of Police, Mahabubnagar, vide letter dated 7.7.2012, for verification of their character and antecedents; in response thereto the Superintendent of Police, Mahabubnagar, vide letter dated 1.8.2012, informed that the candidates proposed by the District Judge had not come to any adverse notice; on receipt of the verification report from the Superintendent of Police, he had forwarded the panel of advocates to the Government along with the report of the Superintendent of Police; he had received orders from the Government, in G.O.Rt. No.25 dated 8.1.2013, appointing the 5th respondent as the AGP for the Court of the Junior Civil Judge, Alampur on 19.1.2013, and the same was communicated to the 5th respondent on 22.1.2013; it has now come to his notice that the 5th respondent is involved in criminal cases; and the Superintendent of Police, Mahabubnagar, by his letter dated 1.3.2013, stated that, on enquiry, it came to light that the 5th respondent was involved in the following cases:
1) FIR No.44/2007 U/s 353 and 504 IPC of Police Station, Alampur, dated 11.3.2007 which is pending trial in CC NO.293/2012 on the file of Hon'ble Spl. JFCM (Prohibition & Excise) Court, Mahabubnagar
2) FIR No.01/2008 U/s 506 and 504 IPC of Police Station, Alampur which is pending trial vide STC No.24/2008 on the file of Hon'ble Spl. JFCM (Prohibition & Excise) Court, Mahabubnagar
3) FIR No.82/2008 U/s 498 (A) IPC dated 10.6.2008 of Police Station Manopad. The case ended in acquittal on 12.6.2012 vide CC No.60/2009 on the file of the Hon'ble JFCM, Alampur.
The District Collector further states that the Superintendent of Police, Mahabubnagar had informed him that, during verification of the antecedents of the 5th respondent, the field enquiry officer Sri V. Devanna, SB HC 742 of District Special Branch, Mahabubnagar had not filed an accurate report by mentioning the criminal cases involved, and did not brief him about the character and antecedents of the 5th respondent; departmental action was initiated against him for exhibiting negligence in submitting the field enquiry report; and an explanation was also called for from the Inspector, District Special Branch, Mahabubnagar who was supervising the work in the special branch enquiry.
In his counter affidavit the 5th respondent would state that, on the directions of the Junior Civil Judge, he had submitted his bio-data; since there was no prescription or requisition made for his antecedents, nor was there any query about the criminal cases, it would not be a ground for exercise of power by this Court under Article 226 of the Constitution of India; and, merely because a criminal case is registered, it does not disentitle a citizen from holding any post, either constitutional or contractual, under the Government, before his guilt is proved as it would be in violation of principles of natural justice and fair play.
This Court, by its order dated 22.2.2013, directed respondents 1 to 3 to produce the records and, accordingly, the relevant records have been placed before this Court by the District & Sessions Judge, Mahabubnagar, the District Collector, Mahabubnagar, and the State Government. The submission of Counsel on either side is, for convenience sake, being dealt with under different sub- heads.
IN THE ABSENCE OF A STATUTORY PROVISION - PLENARY OR SUBORDINATE - GOVERNING APPOINTMENT TO THE POST OF GOVERNMENT PLEADERS/ASSISTANT GOVERNMENT PLEADERS, EXECUTIVE INSTRUCTIONS ISSUED IN RELATION THERETO MUST BE STRICTLY ADHERED TO:
Before examining the petitioner's challenge to the validity of G.O.Rt. No.25 dated 08.01.2013, whereby the 5th respondent was appointed as the Assistant Government Pleader, it is useful to briefly refer to the Executive instructions notified in G.O.Ms. No.187 dated 06.12.2000, as there are no statutory provisions - either plenary or subordinate - prescribing the procedure for appointment to the posts of Government Pleaders/Assistant Government Pleaders. The State Government has executive power, in relation to all matters with respect to which the Legislature of the State has the power to make laws. It is neither necessary that there must be a law already in existence before the executive is enabled to function nor that the powers of the executive are limited merely to the carrying out of these laws. The power of the executive to act under Article 162 of the Constitution is not abridged without a law. If, however, there is a statutory rule or an Act on the matter, the executive must abide by that Act or Rule and it cannot, in the exercise of the executive power under Article 162 of the Constitution, ignore or act contrary to that Rule or the Act. (B.N. Nagarajan v. State of Mysore1; Ram Jawava Kapur v. State of Punjab2; Sant Ram Sharma v. State of Rajasthan3). In the absence of any Law or Rules made in relation thereto, the State Government can exercise its executive powers. (V. Balasubramaniam v. T.N. Housing Board4).
Instruction 1(i) of the "Andhra Pradesh Law Officers (Appointment and Conditions of Service) Instructions, 2000", (notified in G.O.Ms. No.187 dated 06.12.2000), defines "Assistant Government Pleader" to mean a person appointed to assist the Government Pleader or to conduct cases on the civil side in the Courts of Senior Civil Judges, Junior Civil Judges, Labour Courts, Industrial Tribunals and any other Court or Tribunal not covered under Clause (iii). Instruction I(iv) defines "Law Officer" to include an Assistant Government Pleader. Instruction 3 relates to appointment of Law Officers and, under sub-instruction (1) thereof, the Government shall appoint such number of Law Officers on behalf of the State, to conduct cases before various courts, as they may consider necessary. Instruction 5 relates to the appointment of Law Officers in the District Courts and, under sub-instruction (1) thereof, appointment of Law Officers in all Courts subordinate to the High Court shall be made on the basis of the recommendations of the District Collector concerned who shall ascertain the views of the concerned District and Sessions Judge before making the recommendations. Under sub-instruction (2), the District Collector shall prepare a panel of advocates well in advance before expiry of the term of the incumbents, and send the same to the Government for consideration. Under Note II to instruction 5(2), the Collectors shall, while making a recommendation to the Government, furnish particulars of the advocates included in the panel which shall pertain to a period of three years immediately preceding the year in which the recommendation is made, and which shall be in a full and complete form and adequate for the purpose of selection i.e., qualification, age, social status, standing at the Bar as an advocate, nature of practice, number of suits, appeals and the like conducted (in case of posts of Government Pleaders and Additional and Assistant Government Pleaders), the amount of income tax, if any paid, general antecedents, efficiency, reliability, appraisal by the Sessions Judge or the District Judge about the nature and quality of advocacy, and general repute and personality. Sub-instruction (3) stipulates that no person shall be eligible for appointment as Government Pleader unless he has at least ten years of standing at the Bar; as Assistant Government Pleader - in the Senior Civil Judge's Court - unless he has at least seven years of standing at the Bar; and in the Junior Civil Judge's Court unless he has at least five years of standing at the Bar. Sub-Instruction (4) stipulates that, on receipt of a panel sent by the District Collector under sub-instruction (1), the Government, in the Law Department, shall consider the same and appoint one among the panel as a Law Officer for a term prescribed under Instruction 8 or call for a fresh panel. Sub-Instruction (5) stipulates that the District Collector shall submit a fresh panel as called for, under sub-instruction (4), in the same manner for consideration. Instruction 7 prescribes the guidelines for selection of Law Officers and, thereunder, the selection of candidates for appointment as Law Officers shall, as far as possible, be based primarily on merit and suitability; in making the selection, every endeavour should be made to provide equitable representation to members of the scheduled castes, the scheduled tribes and the backward classes in accordance with the ratio of 15%, 6% and 25% respectively; women shall be accorded reasonable representation in all categories; and when merit and suitability are equal, preference may be given to members of the scheduled castes, the scheduled tribes, backward classes and women. THE STATE GOVERNMENT SHOULD SCRUPLOUSLY FOLLOW THE EXECUTIVE INSTRUCTIONS LAID DOWN BY IT:
An executive authority must be rigorously held to the standards by which it professes its actions to be judged, and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. He that takes the procedural sword shall perish with the sword. (Ramana Dayaram Shetty v. International Airport Authority of India5; B.S. Minhas v. Indian Statistical Institute6; Amarjit Singh Ahluwalia v. State of Punjab7; Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi8). When the State lays down executive instructions for taking any action, it is imperative on its part to scrupulously follow the same, to avoid arbitrariness and ensure fair-play. (B.S. Minhas6). Executive Instructions issued by the State are binding on it. (Swaran Singh Chand v. Punjab State Electricity Board9; H.V. Nirmala v. Karnataka State Financial Corpn10). Having professed to abide by the executive instructions the Government cannot, in absence of any statutory provision, act contrary thereto. (N. Kannapan v. State (Union Territory) Andaman & Nicobar Islands11; Harjit Singh v. State of Punjab12).
JUDICIAL REVIEW OF APPOINTMENT TO THE POSTS OF GOVERNMENT PLEADERS/ ASSISTANT GOVERNMENT PLEADERS IN SUBORDINATE COURTS - ITS SCOPE:
Before examining the question, whether or not appointment of the 5th respondent as an Assistant Government Pleader accords with the executive instructions issued in G.O.Ms. No.187 dated 06.12.2000, it is necessary to consider the scope of judicial review of appointment to the posts of Assistant Government Pleaders in subordinate Courts. Judicial review is concerned with whether the incumbent possesses the qualifications prescribed for the appointment, the manner in which the appointment came to be made, and whether the procedure adopted for appointment was fair, just and reasonable. While the Government has the discretion to appoint an eligible and suitable advocate as an Assistant Government Pleader in subordinate Courts, there is no such thing as absolute or untrammelled discretion, the nursery of despotic power, in a democracy based on the rule of law. (A. Mohambaram v. M.A. Jayavelu13; United States v. M. Wunderlich14). Exercise of discretionary administrative power will be set aside if there is manifest error in its exercise or such exercise is manifestly arbitrary. In the purported exercise of his discretion the authority must act in good faith, must have regard to all relevant considerations, must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the Executive instructions that gives it power to act, and must not act arbitrarily or capriciously. (Indian Railway Construction Co. Ltd. v. Ajay Kumar15; State of U.P. v. Renusagar Power Co16; Professor de Smith in his classical work Judicial Review of Administrative Action, 4th Edn., at pp. 285-87). If the authority exercising his discretion takes into account matters which the Courts consider improper for the guidance of his discretion, then, in the eye of law, the authority cannot be said to have exercised that discretion. When considerations, extraneous to the suitability of a person for appointment, are taken into account in making the appointment, there is an abuse of discretionary power, and the exercise of power exceeds the bounds of authority. While adjudging the suitability of a person to an office may well be within the discretion of the appointing authority, the discretion must be exercised bona fide. (A. Mohambaram13; Maxwell on the Interpretation of Statutes, llth Edition, page 118). While Courts will not interfere with the choice of an individual with reference to an appointment made in the due exercise of its discretion by the Government, without shutting out of consideration the claims of others for the post, Courts will certainly stand guard, against flagrant abuse of powers on the simple and sound principle that the Constitution 'cannot have intended powers to be abused beyond what might be called the inevitable area where opinions may legitimately differ'. (A. Mohambaram13).
APPOINTMENT TO THE POSTS OF GOVERNMENT PLEADERS/ASSISTANT GOVERNMENT PLEADERS IN SUBORDINATE COURTS SHOULD BE MADE ON THE BASIS OF THE MERIT AND SUITABILITY OF THE ADVOCATES:
Is a person, against whom two criminal cases are pending trial after charge sheets have been filed against him, "suitable" for appointment to the post of Assistant Government Pleader in subordinate courts? The New Oxford Dictionary of English defines "suitable" to mean right or appropriate for a particular purpose. It also means able, qualified, upto standard or as being a good choice. Appointment to the post of a Government Pleader/Assistant Government Pleader must satisfy not only the eligibility criteria of the candidate, (which is five years standing in the Bar for appointment as an Assistant Government Pleader in the Court of the Junior Civil Judge), but also the decision-making process of the recommendation. The decision to recommend must be an informed decision. If the District Collector or the Sessions Judge eschew relevant material having nexus to the object and purpose of G.O.Ms. No.187 dated 06.12.2000, or take into account irrelevant circumstances, their recommendation would stand vitiated on the ground of arbitrariness. While exercising powers conferred under the aforesaid G.O, the competent authority should consider what is in the best interests of the Government, and not what is good for the appointee. The integrity of that decision-making process must ensure that powers are exercised for the purposes, and in the manner, envisaged.
The District Collector is mandated, under G.O.Ms.No.187 dated 6.12.2000, to satisfy himself that the persons, to be included in the panel to be forwarded to the Government, are "suitable" for being appointed as Government Pleaders/Assistant Government Pleaders. As the Authority has to act in accordance with, and within the limits conferred on it, its order can be challenged if it is beyond those limits or if the grounds are such that no one can reasonably arrive at the requisite satisfaction. There may be cases where the power is exercised in such an obviously arbitrary or perverse fashion, without regard to the actual and undeniable facts, or, in other words, so unreasonably as to leave no doubt whatsoever in the mind of a Court that there has been an excess of power. (Narayan Govind Gavate v. State of Maharashtra17). In arriving at a decision on "reasonableness" the court must find out if the administrator has left out relevant factors or has taken into account irrelevant factors. The decision of the administrator must not be one which no sensible person could have reasonably arrived at, having regard to the above principles, and must be bona fide.
The District Collector before making his recommendation to the Government, regarding appointment of an Advocate as an Assistant Government Pleader, should consider relevant material, eschew irrelevant material, and not be influenced by extraneous considerations. It is the independent satisfaction of the District Collector which must form the basis of his recommendation, and not the opinion of any other person, or an opinion procured from him under pressure or influence. (Reyasat Ali Khan v. State of Bihar18). Before making his recommendation the District Collector is required, under G.O.Ms.No.187 dated 06.12.2000, to ascertain the views of the District and Sessions Judge who is required not to pick and choose those who satisfy merely the eligibility criteria of being a practicing advocate with five years standing at the Bar, but to ensure that the names of only those eligible advocates, who are "suitable" to be appointed as an Assistant Government Pleader, are included in the panel to be prepared by him. The New Oxford dictionary of English (Indian Edition) defines "panel" to mean a small group of people brought together for a purpose. The exercise of preparing a "panel" involves short-listing the most meritorious candidates. (Mrs. Neelima Sadanand Vartak v. State of Maharashtra19). The quality of the Counsel's work has to be judged and assessed by the District and Sessions Judge. The District Collector is required to consider the suitability of such persons from the administrative point of view. (Harpal Singh Chauhan v State of U.P20). The Sessions Judge is required to identify the most meritorious of the eligible and suitable candidates for being included in the panel for appointment to the post of Government Pleader/Assistant Government Pleader. Even while ensuring the rule of reservation, wherever applicable, the District and Sessions Judge should identify the most meritorious advocates in each of the reserved categories. The factors, (including those specified in Note II to Instruction 5(2) of G.O.Ms.No.187 dated 06.12.2000), which the District Judge may take into consideration, before satisfying himself that an eligible advocate is "suitable" to be empanelled for being considered for appointment as a Government Pleader/Assistant Government Pleader, would include the performance of the advocate at the bar, the volume and quality of his practice, the manner in which he conducts himself in Court, his integrity, a blemishless background, fairness of approach to the cases presented by him before the Court etc. The aforesaid factors are merely illustrative and the District and Sessions Judge can also take into consideration any other factor relevant for determining the "suitability" of an eligible advocate to be appointed as a Government Pleader/Assistant Government Pleader. Extraneous factors, such as patronage - political or otherwise, holding elected office of the President, Secretary or executive member of the Bar/Advocates Association etc are wholly irrelevant in determining "suitability", and should be eschewed.
The power of the State Government, to appoint a Government Pleader/Assistant Government Pleader, is circumscribed by G.O.Ms.No.187 dated 06.12.2000 in that no person can be appointed to the said post unless his name finds place in the panel recommended by the District Collector. Where it finds that any, or all, the empanelled advocates are not "suitable" to be appointed as a Government Pleader/Assistant Government Pleader, it is open to the Government to either select one of the "suitable" empanelled candidates or return the panel and call for a panel afresh. While the views of the District and Sessions Judge and the recommendations of District Collector have great weight, their views/recommendations are not conclusive. In those rare cases where the Government disagrees with the recommendation of the District Collector, decides to return the panel, and call for a panel afresh, it must record its reasons for doing so.
PENDENCY OF CRIMINAL CASES AGAINST AN ADVOCATE IS A RELEVANT FACTOR IN DETERMINING HIS SUITABILITY FOR APPOINTMENT TO THE POST OF ASSISTANT GOVERNMENT PLEADER:
The contention of the fifth respondent that pendency of criminal cases is not a bar for appointment to the post of Government Pleader/Assistant Government Pleader, under G.O.Ms. No.187 dated 6.12.2000, is not tenable as the said G.O. requires appointment, to the aforesaid posts to be made primarily on the basis of merit and suitability. "Pendency of criminal cases" would, undoubtedly, be one of the relevant factors to be taken into consideration while adjudging the "suitability" of the Advocate for appointment to the said post. It does not stand to reason that a person against whom criminal cases are pending, and charge sheets are already filed, should be appointed to a post which would require him to conduct cases on behalf of the State. Such a person can hardly be said to be suitable for appointment as a Government Pleader/Assistant Government Pleader.
The insistence under G.O.Ms. No.187 dated 6.12.2000, that the District Collector should ascertain the views of the District & Sessions Judge, clearly spells out the policy of the government to select the best person available for appointment as a Government Pleader/Assistant Government Pleader. The stipulation that appointment as a Government Pleader/Assistant Government Pleader should be made on considerations of merit and suitability, must be understood as requiring the most meritorious of the advocates, eligible and suitable, being empanelled for appointment to the said post. The procedure prescribed, under G.O.Ms. No.187 dated 06.12.2000, also ensures that no "unsuitable" person is appointed as a Government Pleader/Assistant Government Pleader. The District Collector must satisfy himself that all the five advocates, included by him in the panel forwarded to the State Government, are "suitable" to be appointed to the said post. Since G.O.Ms. No.187 dated 06.12.2000 requires the District Collector to recommend, and for the Sessions Judge to only express his views, the "suitability" of even those advocates, who have been found "suitable" by the District and Sessions Judge, must be examined by the District Collector. The names included in the panel must be of meritorious persons who, according to the District Collector, are suitable for appointment as a Government Pleader/Assistant Government Pleader. DUE CARE AND CAUTION SHOULD BE EXERCISED IN CAUSING VERIFICATION OF THE ANTECEDENTS OF THE ADVOCATES TO BE EMPANNELLED FOR THE POST OF ASSISTANT GOVERNMENT PLEADER:
Note II to instruction 5(2) of G.O.Ms.No.187 dated 6.12.2000 requires the District Collector to ascertain the general antecedents of the advocates to be included in the panel. Such an exercise of general antecedent verification would include ascertaining whether the panelists are involved in criminal cases etc. His satisfaction regarding the "suitability" of the eligible advocates, proposed to be included in the panel, would also be based on the antecedent verification report furnished to him by the Superintendent of Police. The word "antecedent" means preceding or prior. It also means a circumstance, event, history, characteristic etc., of one's earlier life. The antecedents of an advocate is a relevant factor in determining whether or not the said advocate is "suitable" to be appointed as a Government Pleader/Assistant Government Pleader. A thorough verification of the antecedents of the panelists is an essential and important part of the selection process, before one of them is appointed as a Government Pleader/Assistant Government Pleader. It must be undertaken with due care and caution, and not treated as a mere ritual or a needless formality. It is disconcerting that, in the present case, the exercise of antecedent verification of an advocate, included in the panel for appointment as an Assistant Government Pleader, has been carried out in such a slipshod, tardy and perfunctory manner. The antecedent verification report, submitted by the Superintendent of Police to the District Collector, makes no reference to C.C.Nos.293 of 2012 and S.T.C.No.24 of 2012 which are pending trial before the Special Judicial First Class Magistrate (Prohibition and Excise Court), Mahabubnagar for offences under Sections 353, 504 and 506 I.P.C. wherein the 5th respondent is the accused. The pendency of the aforesaid criminal cases against the 5th respondent ought to have been brought to the notice of the District Collector by the Superintendent of Police, Mahboobnagar as this was a relevant factor which the District Collector was required to take into consideration in deciding whether or not the 5th respondent was "suitable" to be empanelled for the post of Assistant Government Pleader.
It is not as if the aforementioned two criminal cases were deliberately lodged, registered, and charge sheets filed, after the petitioner's name was recommended for inclusion in the panel, with a view to disable him from being considered for appointment. Several years before the exercise of preparation of the panel of Advocates, for appointment as an Assistant Government Pleader, commenced on a letter being addressed by the District Collector to the District Judge on 16.12.2011, the complaints in the aforesaid criminal cases were filed against the 5th respondent. The Superintendent of Police, Mahabubnagar cannot absolve himself of blame for the indifference exhibited in causing verification of the antecedents of the panelists, and shift it on his subordinates. The Superintendent of Police should have ensured that the exercise of antecedent verification was undertaken with due care and caution, more particularly in relation to appointment to the posts of Law Officers including Government Pleaders/Assistant Government Pleaders. The disciplinary action initiated against the head-constable and the Inspector, District Special branch must be completed at the earliest, and the errant officials should be suitably dealt with for their negligence in causing proper verification of the antecedents of the fifth respondent.
MOTIVES OF THE PERSON WHO INVOKES THE JURISDICTION OF THE HIGH COURT IS OF LITTLE CONSEQUENCE IF THE COURT IS SATISFIED THAT THE DECISION MAKING PROCESS IN MAKING APPOINTMENT TO THE POST OF ASSISTANT GOVERNMENT PLEADER IS VITIATED:
In his counter affidavit, the fifth respondent has attributed motives to the deponent of the writ affidavit. He would allege that there is no bar association in existence in the Court of Junior Civil Judge, Alampur; the deponent was the President of a non-existent association; the Writ Petition is, therefore, liable to be dismissed in limini; the Superintendent of the Court of the Junior Civil Judge, Alampur was working against his interest, intentionally clubbing the records with other files, resulting in his complaining against him to the Junior Civil Judge as well as the District Judge on 6.3.2006 and 21.11.2006 who, after conducting an enquiry, had transferred him from Alampur; the Superintendent worked in the new station for a brief period, and was retransferred to Alampur once again; from then onwards Sri Laxmaiah, the Superintendent with the active connivance of Sri T. Narayan Reddy a practicing advocate, who was placed under suspension earlier by the Bar Council of Andhra Pradesh, was acting against his interests as well as of his clients; he had also filed a complaint against Sri Laxmaiah who had tried to assault him; Sri Sri T. Narayan Reddy had filed an application to dispense with his presence in a criminal case during the currency of his suspension; he had resisted the said application by filing a counter that Sri T. Narayana Reddy was not competent to present the said application as he was suspended; the trial court had allowed the application without considering his objection; he had carried the matter in revision which was also dismissed; Sri T. Narayan Reddy had issued a legal notice thereafter on 19.1.2009 claiming damages, for which he gave a reply on 2.2.2009; when the Districts of Kurnool and Mahabubnagar were hit by floods, the Bar Council of A.P. had extended its help to members, who had suffered due to the floods, sending them cheques of Rs.7500/- each; he did not receive the cheque and, on enquiry, came to know that the deponent had received the cheque, drawn in his favour, by putting his signature; when the said fact was brought to the notice of the Bar Council, the deponent had sent the cheque to him; and the trio i.e., Sri Laxmaiah, Sri T. Narayan Reddy and the deponent were settling their scores by filing the present Writ Petition.
Even if it were to be presumed that these allegations have some basis, the petitioner's motives would not legitimize the appointment of the 5th respondent as an Assistant Government Pleader, as the competent authorities (i.e., the District and Sessions Judge, the District Collector and the State Government) failed to take into consideration, the pendency of two criminal cases against him, while examining his suitability for appointment to the said post. The exercise of antecedent verification by the police officials is, more of than not, superfluous, and the extant Executive Instructions do not require the candidates to state, in their bio-data, whether they have been convicted in a criminal case or whether criminal cases are pending against them. To obviate advocates, against whom criminal cases are pending or those who have been convicted therein, from securing appointment to the posts of Law Officers without disclosing their general antecedents, the Government would do well to amend the Executive instructions, in G.O.Ms. No.187 dated 6.12.2000, to include a stipulation that the bio-date, to be submitted by the eligible advocate, must contain their declaration that they have not been convicted in criminal cases, and no criminal cases are pending against them. The advocate must be required to furnish particulars, if any, of the criminal case/cases where he has been convicted or those criminal cases which are pending against him. While exercising the power of judicial review in respect of appointment of Government Pleaders/Assistant Government Pleaders, the Court can examine whether there was any infirmity in the "decision making process". All that this is now being done, on the process of selection being faulted, is to set aside the appointment of the fifth respondent as the Assistant Government Pleader. CONCLUSION:
As the relevant material, regarding pendency of the criminal cases, was not taken into consideration by the District Collector while examining the "suitability" of the 5th respondent for being included in the panel of advocates forwarded to the Government for being appointed as Assistant Government Pleader and, as this relevant factor, has not only an important bearing on the decision making process, but also on the integrity of the office of the Government Pleader/Assistant Government Pleader, the impugned G.O. must be, and is accordingly, set aside. It is open to the Government either to consider the other names in the panel or call for a fresh panel from the District Collector for appointment to the post of Assistant Government Pleader. In case a fresh panel is called for, the District Collector shall, in the light of the observations made hereinabove, prepare a panel afresh in accordance with law, and forward the same to the Government for its consideration. Pending appointment of an Assistant Government Pleader afresh, it is open to the respondents to make interim arrangements and permit any other Assistant Government Pleader, other than the 5th respondent, to hold additional charge till appointment is made afresh.
The Writ Petition is disposed of accordingly. The Miscellaneous Petitions pending, if any, shall also stand disposed of. However, in the circumstances, without costs.
_____________________________ (RAMESH RANGANATHAN,J) 14.03.2013