judgement:
Appeal Nos.
2914 16 of 1993 etc.
From the Judgment and Order dated 23.3.1993 and 29 3 93 of the Madras High Court in W.P. Nos 15081/91, 8002/92 and 16068/91.
WITH Civil Appeal Nos.
2937/93 3040 40A B/93 3026 27/93 3025/93 990 3015 24/93 3028/93 3084/93 3002/93 3032/93 2993 94/93 3003 04/93 3086 87/93 2995/93 3005 07/93 2987 89/93 3014/93 3008 10/93 3086 87/93 2940 41/93 3011 301 IA/93 2998 3000/93 2986/93 3101 07/93 2992/93 3108/93 2982 82A/93 2983 85/93 3029 31/93 3093 94/93 2943 44/93 991 2955 57/93 2996 97/03 3042 3080/93 3035/93 3039/93 3041/93 3095/93 3033 34/93 3090 92/93 3096 97/93 2981/93 3088 89/93 2979/93 2976 77/93 2960 61/93 2990/93 2968/93 2958 59/93 2971/93 2978/93 2972/93 2942/93 3082 83/93 2969 70/93 2965 67/93 2991/93 992 2973 75/93 3036 38/93 2962 64/93 3085/93 3127 29/93 3012 13/93 3018/93 2938 39/93 2990/93 2945 54/93 WITH Special Leave Petition (CIVIL) Nos. 7375, 8009 11, 8108, 7416, 7560 62 OF 1993.
Shanti Bhushan, K.K. Venugopal, Soli J. Sorabjee, N. Santosh Hegde, Shivasubramaniam.
K. Parasaran, P. Chidambaram, Mrs. Revathy Raghavan, M.A. Krishna Moorthy, Kailash Vasdev, Pawan Kumar, B. Rabu Manohar, Dr. A. Francis Julian (For M/s. Arputham, Aruna and Co.), P. Chandrasekhran, Aruneshwar Gupta, A. Chandrasekar, Pushpendra Singh Bhati, V. Ramajagadesan, V. Balachandran, V. Krishnamurthy, K.V. Vijaya Kumar, Ajit Kumar Sinha, Selvar thenave, Martin, K.V. Mohan, R. Mohan, R. Nedumaran, and P.D. Dinakaran for the Appellants.
P.R. Seetharaman for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH,J.
These bunch appeals are by the Teachers Training Institutes in the State of Tamil Nadu.
They claim to be the minority educational institutions in terms of Article 30(1) of the Constitution of India.
The State Government has declined to recognise these institutes on (lie ground that they have failed to satisfy the conditions for grant of recognition as provided under the Tamil Nadu Minor 993 ity Schools(Recognition and Payment of Grants) Rules, 1977 as amended by the Government Order No. 536 dated May 17, 1989 and Government Order No. 861 dated June 12, 1991.
(Recognition Rules) The appellants challenged, before the Madras High Court by way of writ petitions under Article 226 of the Constitution, the validity of the Recognition Rules.
inter alia, on the ,rounds that the said Rules are violative of Articles 30(1) and 14 of the Constitution of India.
A Division Bench of the High Court consisting of M. Srinivasan and Thangamani, JJ, dismissed the writ petitions.
M. Srinivasan J., who spoke for the Bench, has given a scholarly judgment.
The case law on the subject has been dealt with in detail and the conclusions culled out succinctly.
The High Court judgment has been of utmost assistance to us.
These appeals via special leave are by the Teachers Training Institutes against the judgment of the Division Bench of the High Court.
We announced our conclusions in these matters dismissing the appeals and special leave petitions on May 25, 1993.
Now we proceed to give our reasoned judgment.
The Recognition Rules provide for instructions and teaching practice to be followed, minimum qualifications for teaching and non teaching staff and the following additional Conditions to be satisfied by a teachers training institute to quality for grant of recognition 1.The Teachers Training Institute should have at least 10 acres of suitable land of its own to he used for construction of Building for Institution and Administration and for Hoste l accommodation and staff quarters and also for Play Ground purposes, 2.The Institution Building must consist of suitable rooms to provide for class rooms with roughly 60 sq.
feet of carpet area per inmate one Auditorium cum projection hall with an area of about 2000 Sq.
Laboratory and Special Rooms.
Library Staff rooms separately for Men and Women staff, Principal 's Room, Off ice Room, Store Room for Craft and Physical Education articles.
Toilet facili ties separately for men and women and women 's Common Room; 3.Bath rooms and toilets should be provided.
if the Institution is meant for both sexes separate Such facilities should be provided for 994 men and women teaching staff non teaching staff and men and women candidates.
As far as bath rooms and toilets are concerned arrangements should he made at the rate of one for ten inmates.
4.(a) Adequate furniture and office equipment including furnitures for class rooms, Library, Laboratory and other rooms should be provided to the value of at least a lakh of rupees, (b)Laboratory equipments worth at least a lakh of rupees should be provided for Science, Geography, Home; (c)Teaching appliances.
audio visual aids, charts, maps etc.
worth about Rs. 50,000 should be provided.
(d)Sports/Games/Arts/Music Equipments worth about Rs. should be provided.
(e)Equipment and Material for work experience worth about Rs. 50,000 should be provided.
5.A room with a space of approximately 1000 sq.
with sufficient storage space to keep the equipment furnishing to organise various learning situations, and provision to observe the trainees at work in the laboratory situations.
without being noticed has to be provided.
Sufficient furnitures such as, working tables and almirahs should be provided.
Each Teacher Training Institution should have a good library with at least 10,000 volumes of back and reference books worth at least a lakh of rupees: 7.
Play ground space for sports, gymnastics and other Physical Education activities with an area about 5 acres should be provided.
If the Institute is meant for both sexes, another 3 acres of and should he provided exclusively for women candidates.
The Play ground should he provided adjacent to the main Institution building within the campus and not in a remote place away from the Institution, 995 8.
At least one full fledged recognised Middle School with Standards I to VIII should be functioning under the same management of every Teacher Training Institute seeking recognition, for the purpose of providing teaching practice to the trainess.
This will be a precondition even at the time of sending in applications for recognition of Teachers Training Institutes.
The practical aspects of the Training will be assessed by a competent board to be constituted by the concerned authority.
(a) The need for the opening of the institution in that area will be assessed by a District Committee with a Joint Director nominated by Director of School Education as Chairman with Chief Educational Officer and District Educational Officer/Inspectors of Girls Schools as members as the case may.
This committee will submit a report about satisfaction of norms based on which the competent authority will consider Recognition for the institution, (b) The Authority competent to grant recognition shall take into account the need for granting such recognition to Teacher Training Institutes taking into consideration the trained teachers already available and waiting for appointment and potential to.
absorb the Teachers to be trained in future in the services of Government and Private Schools.
There should he economic strength as prescribed by the education department.
The teachers training institutes should not admit more than forty students in all for the course and should not exceed this limit either in the first or second year.
It was argued before the High Court that as the minorities have a fundamental right under Article 30(1) of the Constitution to establish and administer educational institutions of their choice, the conditions provided under the Recognition Rules are wholly arbitrary and have been designed to oust the appellants from the educational fieled and the provisions regarding, having a middle school '.
ten acres of land, play grounds, library with 10,000 books, laboratory, hostel, staff quarters, bathrooms for students etc.
are so onerous that it is difficult rather impossible to comply with the same.
996 While dealing with the argument based on Article 30(1) of the Constitution of India the High Court discussed in detail the judgments of this Court in Kerala Education Bill[1959] SCR 995, Rev,.
Sidhajbhai Sabhai & Ors.
vs State of Bombay and Anr [ ; S Azeez Basha vs Union of India ; , State of kerala etc, vs Very.
Rev. Mother Provincial etc, [ ; , Regina vs St. Aloysius Higher Elementary School and Anr, [19711 Supp.
SCR 6.
The Gandhi Faiz e am College, Shahjahanpur vs University of Agra and Anr.
[ 19751 2 SCC 283, Lilly,.
Kurian vs Sr.
Lewina and Ors, [ 1 979] 1 SCR 820,All Saints High School, Hyderabad etc.
vs Government of Andhra Pradesh & Ors.
etc ; ; The Managing Board of the Milli Talimi Mission, Bihar Ranchi & Ors.
vs The State of Bihar & Ors., ; , A.P. Christians Medical Educational Society vs Government ofAndhra Pradesh and Anr ; , Frank Anthony Public School Employees Association vs Union of India and ors,[1986]4 SCC 707,All Bihar Christion Schools Association andAnr.
vs State of Bihar and Ors [ 1 988] 1 SCC 206; St. Stephen 's College vs The University of DelhiJT [1991]4 SC 548; Unni Krishnan andAnr.
vs State ofAndhra Pradesh and Ors.
Writ Petition (C) No. 607/92 decided on February4,1993 and TheAhmedabad St Xaviers College Society & Anr.
vs State of Gujarat and Anr 1 975 ] 1 SCR 173.
On the analysis of the above judgments the High Court culled out the following principles 1)The fundamental right declared by Article 30(1) of the Constitution is absolute in terms, but subject to regulatory measures ', 2)There is no fundamental right under Article 19(1) (g) of the Constitution to establish or administer an educational institution, if recognition is sought therefor; 3) The institutions must be educational institutions of the minorities in truth and reality and not mere masked phantoms, 4) There is no fundamental right to recognition and any institution seeking recognition should abide by the regulations,prescribed by the State as conditions therefor; 5)The minority institutions must be fully equipped with educational excellence to keep in step with other institutions in the State; 6) The regulations framed by the State cannot abridge the fundamental right of the minorities and they should be in the interests of 997 the minority institutions themselves and not based on State necessity or general societal necessities; 7) The regulations should be with a view to promoting excellence of educational standards and ensuring security of the services of teachers and others employees of the institutions and in the true interests of efficiency of institutions, discipline, health, sanitation, morality, public order and the like, 8) Even unaided institutions are not immune from the operations of general laws of the land such as Contract Law, Tax measures, Economic Laws, Social Welfare Legislations Labour and Industrial Laws and similar other laws which are intended to meet the need of the Society, No fault can he found with the above quoted legal principles enunciated by the High Court.
Mrs. Kitty Kumar Manglam.
Mr. Shanti Bhushan, Mr. K.K. Venugopal.
Mr. K. Parasaran, Mr. P. Chindambram and other learned counsel appearing for the appellants fairly conceded that the High Court has correctly summed upthe conclusions arising out of the interpretation of Article 30(1) of the Constitution of India.
Before dealing with the Recognition Rules the High Court referred to the Guidelines framed pursuant to the National Educational Policy introduced in the year 1986, the recommendations of the Education Commission (1964 1966), the role of the National Council for Teacher Education under the National Council of Educational Research and Training, the views of various eminent educationists and came to the conclusion that there is a need for drastic change in the basic concept of teachers training in the country.
Comprehensive overhauling of administrative structure of these institutions was urgently needed.
The High Court dealt with in detail the revised syllabus for the diploma in teacher education course and also the curriculum of the institutes of Education Training set up by the Tamil Nadu Government which shows that the State.of Tamil Nadu is in the process of overhauling the methodology of teaching and administration of the teachers training institutes in the State of Tamil Nadu.
The High Court referred to various judgments of this Court wherein the importance of teacher training and need to uplift the standard of such institutions was repeatedly highlighted.
The High Court rightly emphasised the need for maintaining very high standards of Education, Sports, administration and maintenance of the Teachers 998 Training Institutes.
These Institutions are established with the avowed object of training teachers and educationists who have to shoulder the responsibility of moulding the nation.
This Court in N.M. Nageshwaramma vs State of Andhra Pradesh & Anr.
[1986] Supp SCC 166 observed as under: "The Teachers Training Institutes are meant to teach children of impressionable age and we cannot let loose.
on the innocent and unwary children, teachers who have not received proper and adequate training.
True they will be required to pass the examination but that may not be enough.
Training for a certain minimum period in a properly organised and equipped Training Institute is probably essential before a teacher may be duly launched." Jagannatha Shetty, J. speaking for this Court in Andhra Kesari Education Society vs Director of School Education & Ors. J.T.(1988) 4 S.C. 431 observed as under: "Though teaching is the last choice in the job market, the role of teacher is central to all processes of formal education.
The teacher alone could bring out the skills and intellectual capabilities of students.
He is the 'engine ' of the educational system.
He is a principal instrument in awakening the child to cultural values.
He needs to be endowed and energised with needed potential to deliver enlightened service expected of him.
His quality should be such as would inspire and motivate into action the benefitter.
He must keep himself abreast of ever changing conditions.
He is not to perform in a wooden and unimaginative way.
He must eliminate fissipasrous tendencies and attitudes and infuse nobler and national ideas in younger minds.
His involvement in national integration is more important, indeed indispensable.
It is, therefore.
needless to state that teachers should be subjected to rigorous training with rigid scrutiny of efficiency.
It has greater relevance to the needs of the day.
The ill trained or sub standard teachers would be detrimental to our educational system, if not a punishment on our children.
The Government and the University must, therefore, take care to see that inadequacy in the training of teachers is not compounded by any extraneous consideration.
" In State of Maharashtra vs Vikas.
Sahebrao Roundale & Ors.,.
J.T (1992) 5 999 S.C. 175, K. Ramaswamy, J. speaking for this Court observed as under: "The teacher plays pivotal role in moulding the career,character and moral fibres and aptitude for educational excellence in impressive young children.
The formal education needs proper equipment by the teachers to meet the challenges of the day to impart lessons with latest technics to the students on secular, scientific and rational outlook.
A well equipped teacher could bring the needed skills and intellectual capabilities of the students in their pursuits.
The teacher is adorned as Gurudevobhava, next after parents, as he is a Principal instrument to awakening the child to the cultural ethos, intellectual excellence and discipline.
The teachers, therefore, must keep abreast ever changing technics, the needs of the society and to cope up with the psychological approach to the aptitudes of the children to perform that pivotal role.
In short teachers need to he endowed and energised with needed potential to serve the needs of the society.
The qualitative training in the training colleges or schools would inspire and motivate them into action to the benefit of the students.
For equipping such trainee students in a school or a college all facilities and equipments are absolutely necessary and institutions bereft thereof have no place to exist nor entitled to recognition.
In that behalf compliance of the statutory requirement is insisted upon.
Slackening the standard and judicial fiat to control the mode of education and examining, system are detrimental to the efficient management of the education.
" The teacher education programme has to be redesigned to bring in a system of education which can prepare the student teacher to shoulder the responsibility of imparting, education with a living dynamism.
Education being closely interrelated to life the well trained teacher can instill anesthetic excellence in the life of his pupil.
The traditional, stereotyped.
lifeless and dull pattern of" 'chalk.
talk and teach" method has to be replaced by a more vibrant system with improved methods of teaching.
to achieve qualitative excellence in teacher education.
Keeping in view the National Policy of Education, the Government of Tamil Nadu has published, a revised syllabus for the diploma in teacher education course.
in the Government Gazette of August 15, 1990.
The aims and objectives of the said syallbus and curriculum as given by the State of Tamil Nadu are as under: 1000 .LM15 "A sound Programme of Elementary Teacher Education is inevi table for the qualitative improvement of Education.
Education must become all effective instrument of social change and the part played by the teacher should be suitable and significant for this purpose.
The gap between the Teacher Education curriculum and the school curriculum has to he minimized for enabling the teachers to act as agents of social change which necessitates that the education imparted in schools has relevance to the personal as well as social life of individuals and to "the needs and aspirations of the people.
In order to be a catalyst in the process of developing a citizen who is productive and who believes in social justice and national integration, tile teacher himself needs to become such a citizen through appropriate learning experience.
" The High Court has examined the legality of the impugned Recognition Rules in the above background.
It has discussed in detail the object and utility of laying down the impugned conditions for recognition.
The High Court has found that none of the conditions infract Articles 14 and Article 30(1) of the Constitution of India.
We agree with the reasoning and the conclusions reached by the High Court.
This Court cannot go into the question as to whether a Teachers Training Institute should be set up on a campus consisting of 10 acres or 5 acres.
It is also not for this Court to lay down the sizes of the class rooms.
laboratories, number of ' toilets or the number of books to he kept in the library.
It is entirely for the State Government to lay down tile requirements of a teachers training institute campus.
The learned Advocate General appearing for the State of Tamil Nadu has contended that the Recognition Rules are also applicable to Government run teachers training, institutes and also to the institutes which are Government aided.
According to him the new Recognition Policy of the Government has been designed with the object of closing the "teaching shops" and encouraging the genuine institutions.
According, to him the policy is based on the Guidelines issued by the Central Government from time to time.
He further stated that the condition of having an area of 10 acres for the campus has now been reduced to five acres in case of the institutions which are set up within the area of Municipal Corporation.
He has clarified that the only requirement for setting up the library is that it must have reference books worth at least a lakh of rupees.
According to him the number of toilets.
bathrooms etc.
and other conditions regarding the institute building are in the nature of guidelines and are to he substantially complied with.
On our suggestion the learned Advocate General has agreed to command to the State Government.
not to insist on additional 3 acres of land in case of ' co 1001 educational institutes in case these institutes are having 10 acres/5 acres of area as provided under the Recognition Rules.
Mr. Shanti Bhushan appearing in civil appeals arising out of Special Leave Petitions No. 6762 63/93 has contended that the appellants institutes started functioning in the year 1984.
They were refused recognition and as such they challenged the order by way of a writ petition before the High Court.
The learned counsel has invited our attention to the judgment of the High Court dated November 3, 1987 in the said writ petition wherein it is held as under "Consequently, the orders of the respondents 2 and 3 are set aside a writ of mandamus will issue directing the third respondent to grant recognition to the petitioner institute with effect from 27th September, 1984.
This writ petition is allowed with costs.
" Mr. Shanti Bhushan contended that the impugned Recognition Rules cannot be made applicable to the institutions which have already been established and given recognition by the State Government under directions of the Court.
Relying upon the above quoted judgment of the High Court learned counsel has contended that his clients were given recognition with effect from 1984 under the directions of the High Court and as such the impugned Recognition Rules which came into force in the year 1989 cannot be made applicable to them.
It is not disputed by Mr. Shanti Bhushan, that under the directions of the High Court temporary recognition was given to his clients, though according to him the order of the Government granting temporary recognition was challenged before the High Court and the said petition was also disposed of by the impugned judgment.
We see no force in the contention of the learned counsel.
All those institutes which did not have permanent recognition before the issue of the Recognition Rules are bound to comply with the said conditions before they are entitled to permanent recognition.
The High Court was justified in holding that the institutions which were operating on the basis of temporary recognitions, either under the orders of the Courts or otherwise, shall to comply with the recognition rules to enable them to earn recognition.
Mr. K.K. Venugopal contended that a distinction has to be made between the institutions which are functioning earlier to the coming into force of the recognition rules and those which have applied for recognition for the first time.
According to him change over period should be given to the existing institutes which are functioning on the basis of temporary recognition.
We do not agree with Mr. Venugopal.
The training institutes which are functioning on the basis of 1002 temporary recognitions are neither properly organised nor fully equipped to train the teachers.
These institutes have done more harm than good to the cause of education.
Mr. Venugopal and Mr. K. Parasaran have further argued that the students who have already taken the examinations, their results be directed to be declared and if successful, certificates be awarded to them.
Mr. Chindambram, appearing for some of the appellants, has argued that there are students who have already taken the examination and their results have also been declared but they have not been given certificates on the ground that the institutes which sponsored them have not been recognised.
It is no doubt correct that temporary recognitions have been granted to some of the institutions either under the orders of the Court or otherwise and the students of such institutions were permitted to write the examinations.
In number of cases under orders of the Court permission to the students to write the examinations have been given.
The High Court also directed in some cases to publish the results of the students who wrote the examination in April 1992.
All these situations were brought to the notice of the High Court in Writ Petition No. 3674 of 1992 and Writ Petition No. 5469 of 1993 which were heard together.
The High Court refused to grant relief to the students who had written the examination or who had passed the examination and were being denied the certificates.
The High Court observed as under "Based on the above orders, learned counsel for the petitioner contends that the students of the petitioner Institution have validly written the examination when the order of recognition was in force and the results of the examination have already been published, pursuant to the orders of this Court.
It is contended that the students of the petitioner are certainly entitled to the consequential relief of issue of certificates.
Another interlocutory application is now filed in WMP No. 5469 of, 1993 on 22.2.93 for a direction to the third respondent to publish the results of the students who wrote the examination held in July 1992.
In similar cases, we have given directions to the authorities to publish the results.
But, we have taken care to observe that such publication of results will not confer any right on the students as the Institutions have not complied with the rules framed in GOMS.
No. 536.
They cannot take advantage of the interim orders passed by this court directing the government to grant temporary recognition Orders of such temporary recognition 1003 are expressly made subject to the result of the main writ petitions.
Now, we have held that GO Ms. No. 536 is valid and the orders of temporary recognition will not confer any other remedies on the students of the petitioner.
So far as these institutions are concerned, they should be treated only as non recognised.
Just because the students have written the examinations and results are published, they are not entitled to any further relief.
The writ petition is dismissed with the above observations".
It has come to the notice of this Court that many institutions claiming themselves to be minority institutions within the meaning of Article 30(1) of the Constitution, invoke the jurisdiction of the High Court under Article 226 or of this Court under Article 32 for a writ of mandamus to recognise the institutions in question as minority institutions and pending the final disposal of such applica tions, an interim direction is sought to allow the students of such institutions to appear at the examinations concerned.
In connection with such interim prayer, this Court in the case of A. P. Christians Medical Educational Society vs Government of Andhra Pradesh (supra) said: "Shri K.K. Venugopal, learned counsel for the students who have been admitted into the MBBS course of this institution, pleaded that the interests of the students should not be sacrificed because of the conduct or folly of the management and that they should be permitted to appear at the University examination notwithstanding the circumstance that permission and affiliation had not been granted to the institution.
He invited our attention to the circumstance that students of the Medical college established by the Daru Salam Educational Trust were permitted to appear at the examination not with standing the fact that affiliation had not by then been granted by the University.
Shri Venugopal suggested that we might issue appropriate directions Lo the University to protect the interests of the students.
We do not think that we can possibly accede to the request made by shri Venugopal on behalf of the students.
Any direction of the nature sought by Shri Venugopal would be in clear transgression of the provisions of the University Act and the regulations of the University.
We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself.
We cannot imagine anything more destructive of the rule of law that a direction by the court to disobey the laws.
" 1004 In view of the aforesaid pronouncement of this Court, the High Court should not have passed, interim order directing the respondents to allow the teachers of unrecognised institutions to appear at the examinations in question.
Such teachers cannot derive any benefit on basis of such interim orders, when ultimately the main writ applications have been dismissed by the High Court, which order is being affirmed by this Court.
The same view has been expressed by this Court, in connection with the minority unrecognised teachers training institutions in the State of Tamil Nadu itself, in the case of State of Tamil Nadu and others vs St. Joseph Teachers Training Institute and another [1991] 3 SCC 87.
As such no equity or legal right can be pleaded on behalf of the Teachers admitted for training by such minority institutions, for publication of their results, because they were allowed to appear at the examinations concerned, during the pendency of the writ applications before the High Court, on basis of interim orders passed by the High Court, which were in conflict with the view expressed by this Court in the aforesaid cases.
We see no ground to differ with the view taken by the High Court.
This court in N.M. Nageshramma 's case (supra) has held that training in a properly organised and equipped training institute is essential before a candidate becomes qualified to receive teachers training certificate.
Simply passing the examination is not enough.
The future teachers of the country must pass through the institutions which have maintained standards of excellence at all levels.
We see so ground to interfere with the impugned judgment of the High Court.
We agree with the views expressed by the High Court on various aspects of teachers training institutes.
We also agree with the reasoning and the conclusions reached by the High Court.
Before we part with this judgment we consider it necessary to strike a note of caution in respect of passing of interim orders by Courts directing the students of unrecognised institutions, to appear at the examinations concerned.
In view of ' the series of judgments of this Court, the Courts should not issue fiat to allow the students of unrecognised institutions to appear at the different examinations pending the disposal of the writ applications.
Such interim orders affect the careers of several students and cause unnecessary embarrassment and harassment to the Authorities, who have to comply with such directions of the Court.
It is a matter of common knowledge that as a part of strategy, such writ applications for directions to recognise the institutions in question and in the meantime to allow the students to appear at the examinations are filed only when the dates for examinations are justified.
Many of such institutions are not only "masked phantoms" but are 1005 established as business ventures for admitting sub standard students, without any competitive tests, on basis of considerations which cannot serve even the interest of the minority.
There is no occasion for the Courts to be liberal or generous, while passing interim orders, when the main writ applications have been filed only when the dates for the examination have been announced.
In this process, students without knowing the design of the organisers of such institutions, become victim of their manipulations.
The appeals/special leave petitions are dismissed.
No costs.
R.P. Appeals dismissed.

summary/full:
The respondent state, in the process of overhauling the methodology of teaching and administration of teachers training institutes in order to achieve qualitative excellence in teacher education , amended the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules 1977 by G.O. No.536 dated 17 5 1989 and No. 661 dated 12 6 1991.
The Rules besides providing for instructions teaching practice to be followed and minimum qualification for the staff prescribed certain other conditions regarding land,building, hotel 986 furniture, library, teaching appliances, sports facilities, recognised middle school for providing teaching practice to trainees, etc.
to be satisfies by a teachers training institute to qualify for grant of recognition.
The appellant/petitioners are various Teachers Training Institute in the State of Tamil Nadu.
claiming to be minority educational institutions in terms of Article 30(1) of the Constitution of India The State Government declined to recognise these institutions on the ground that they failed to sutisfy the conditions for grant of recognition as provided under the Recognition Rules.
The appellants/petitioners filed writ petitions before the High Court challenging the validity of the Recognition Rules on the ground that the same were violative of Articles 30(1) and 14 of the Constitution.
It was contended that as the minorities have a fundamental right under r Article 30(1) of the Constitution to establish and administer educational institutions of their choice, the conditions provided under the recognitions Rules were wholly arbitrary and were designed to oust the appellants from the educational field and the the provisions were so onerous that it was difficult rather impossible to comply with the same.
The High Court dismissed the writ petitions.
The appellants/petitioners filed the appeals and the special leave petitions.
It was contended on behalf of the appellants that the Rules could not be made applicable to the institutions already established and given recognition by the State Government under the directions of the Court; and that the successful students of these institutions who had taken examinations be given certificates.
This Court dismissed the appeals and the special leave petitions by its order dated 25 5 1993 indicating that reasons therefor would follow.
Giving reasons for its order dated 25 5 1993, this Court HELD : 1.
The High Court was right in holding that none of the conditions for grant of recognition to teachers training institutes prescribed under the Tamil Nadu Minority Schools (Recognition and Payment of Grants) Rules, 1977, infracted Articles 14 & 30(1) of the Constitution.
It rightly culled out the following principles (i) The fundamental right declared by Article 30(1) of the Constitution is absolute in terms, but subject to regulatory measures; 987 (ii)There is no fundamental right under Article 19(1) (g)of the Constitution to establish or administer an educational institution, if recognition is sought therefore; (iii) The institutions must he educational institutions of the minorities in truth and reality and not mere masked phantoms; (iv) There is no fundamental right to recognition and an% institution seeking recognition should abide by the regulations prescribed by the State as conditions therefor, (v) The minority institutions must be fully equipped with educational excellence to keep in step with other institutions in the State; (vi) The regulations framed by the State cannot abridge the fundamental right of the minorities and they should be in the interests (if the minority institutions themselves and not based on State necessity or general societal necessities .
(vii) The regulations should be, with a view to promoting excellence (of educational standards and ensuring security of the services of teachers and other employees of the institutions and in the true interests of efficiency (if institutions, discipline, health, sanitation, morality public order and the like; (viii) Even unaided institutions are not immune from the operations of general laws of the land such as Contract Law Tax measures, Economic Laws and, Social Welfare legislations, Labour and Industrial Laws and similar other laws which are intended to meet the need of the Society.
Kerala education bill,[1959] SCR 995; Rev. Sidhajbai Sabhai section vs State of Bombay and Anr[1963] 3 SCR 837; section Azeesh Basha vs Union of India ; ; State o Kerala etc.
vs Very Rev. Mother Provincial etc ; ; Regina vs St. Alosius Higher Elementary School and Anr[1971] Supp.
SCR 6; The Ahmedabad St. Xaviers College Society and Anr etc vs State of Gujarat and Anr[1975] 1 SCR 173; The Gandhi Faiz e am College, Shajahanpur
University of Agra and Anr.[1975] 2 SCC 283; Lilly Kurian vs Sr.
Lewina and 988 Ors.[1979] 1 SCR 320; All Saints High School, Hyderabad etc.
vs Government of Andhra Pradesh & Ors.
etc ; ; The Managing Board of the Milli Talimi Mission, Bihar Ranchi & Ors vs The State of Bihar & Ors ; ; A.P. Christians Medical Educational Society vs Government of Andhra Pradesh and Anr.[1986] 2 SCC 667 Frank Anthony Public School Employees Association vs Union of India and Ors [1986]4 SCC 707 All Bihar Christian Schools Association and Anr.
vs State of Bihar and Ors. ; St. Stephon 's College vs The University of Delhi JT(1991) 4 SCC, 548 and Unni Krishnan and Anr.
vs State of Andhra Pradesh and Ors.
cited.
2.1 The teacher education programme has to he redesigned to bring in a system of education which can prepare the student teacher to shoulder the responsibility of imparting educating with a living dynamism and the traditional pattern of "chalk, talk and teach" method has to be replaced by more vibrant system with improved methods of reaching, to achieve qualitative excellence in teacher education.
N.M. Nageshwaramma vs State of Andhra Pradesh & Anr [1986] Supp SCC 166 Andhra Kesari Education Society vs Director of School Education & Ors and State of Maharashtra vs Vikas Sahebrao Roundale & Ors.
J.T.(1992) 5 SC 175, relied on.
2.2 It is entirely for the State Government and not for this Court, to lay down the requirements of a teachers training institute campus.
All those institutes which did not have permanent recognition before the issue of the Recognition Rules, 1977 are bound to comply with the said conditions before they are entitled to permanent recognition.
The High Court was Justified in holding that the institutions which were operating on the basis of temporary recognitions, either under the orders of the Courts or otherwise, shall have to comply with the recognition rules to enable them to earn recognition.
These institutions are neither properly, organised nor fully, equipped to train the teachers.
and have done more harm than good to the cause of education.
3.1 In view of the series of the judgments of this Court the Courts should not issue fiat to allow the students of unrecognised institutions to appear the different examinations pending the disposal of the writ applications.
Such interim orders affect the career of several students and cause unnecessary embarrassment and harassment to the authorities, who have to comply with such directions of the Courts.
989 A.P. Christians Medical Educational Society vs Government of Andhra Pradesh ; , relied on.
3.2 The High Court should not have passed interim orders directing authorities concerned to allow the teachers of unrecognised institutions to appear at the examinations.
It is a matter of common knowledge that many institutions claiming themselves to be minority institutions within the meaning of Article 30(1) of the Constitution invoke the jurisdiction of the High Court under Article 226 or of this Court under Article 32 for a writ of mandamus to recognise the institutions as minority institutions only when the dates for examinations are notified and, as a part of strategy, seek directions to allow, meanwhile, the students to appear at the examinations.
Many of such institutions are not only "masked phantoms" but are established as business ventures for admitting sub standard students without any competitive tests, on basis of considerations which cannot serve even the interest of the minority.
The teachers of such institutions cannot derive any benefit on basis of interim orders when ultimately the main writ applications have been dismissed.
As such no equity or legal right can be pleaded on behalf of the students admitted for traning by such minority institutions for publication of their results or award of certificates.
A.P. Christians Medical Educational Society vs Government of Andhra Pradesh, ; ; and State of Tamil Nadu and others vs St. Joseph Teachers Training Institute and another; , , relied on.


judgement:
Petition (Civil) Nos.
7900 02 of 1982.
WITH Writ Petition Nos. 837 & 853 of 1982.
(Under Article 32 of the Constitution of India) WITH Civil Appeals Nos.
3137 38 of 1993.
1021 From the Judgment and Order dated 26.7.84 & 27.7.84 of the Rajasthan High Court in D.B.
Civil Special Appeal Nos. 182 & 184 of 1984.
WITH C.M.P. Nos.
19643 45 of 1988 & C.M.P. No.
8272 of 1986.
R.K. Garg, Aruneshwar Gupta, R.K. Kamal and S.K. Gupta for the Petitioners in W.P. Nos. 7900, 7902/82, SLPS.
12682/84,830/85.
and for the Respondent No. 4 in CA.No.
1649/78.
T. Sridharan for the Petitioner in WPs.
Nos. 837 & 853 of 1982.
M.K. Ramamurthi, and Parijat Sinha for the Appellants in CA.
No. 1649/78 and for the Respondent No, 4 in WPs.
7900 82/82.
R. F. Nariman and P.H. Parekh for the intervenor in WPs.
Nos. 7900 02/82.
V.R. Reddy, Additional Solicitor General, V.C. Mahajan, Ms.
B. Sunita Rao, V.K. Verma and Ms. A. Subhashini for the Respondent in U.O.I. C.V.S. Rao, (NP) for the Respondent in SLP Nos.
12682/84,830/85.
C.V. Rappai for the Respondent No. 14 in WP.
7900 02/82.
The Judgment of the Court was delivered by PUNCHHI, J.
These are a handful of writ petitions and special leave petitions which, on grant of leave hereby, and having become appeals, can conveniently be disposed of by a common judgment.
The fulcrum of the controversy herein, and the shadow in which it works is a three judge Bench decision of this Court in Katyani Dayal & Ors.
vs Union of India & Ors.
; decided on March 26, 1980.
Before adverting to the facts and circumstances in which this cause has been presented to this Court it would be fruitful to give a broad outline of Katyani Dayal 's case, in the immediately succeeding, paragraphs.
Connected with Katyani Dayal 's case were writ petitions filed in a represen 1022 tative capacity, purporting to represent all temporary Assistant Engineers (on a later point of time known as temporary Assistant Officers) appointed by the Railway Board, pursuant to the authority given by the President of India, on the recommendations of the Union Public Service Commission; selection based on interview alone.
There was a separate classification of such temporary Assistant.
Officers when compared with India Railway Service Engineers (Class 1).
Direct recruits to the Indian Railway Service of Engineers (Class 1) were subjected to competitive written and personality tests and in the nature of things only the very best could emerge out successfully.
On the other hand temporary Assistant Officers, (hereafter referred as 'Officers ' at places) were neither subjected to written nor to a personality test but, as said before, were selected on the basis of interview.
Besides the minimum educational qualification, which was the same for both the services three years experience as a Civil Engineer was.
additionally required for the aspirants to the Indian Railway Service of Engineers (Class 1) (hereafter referred to as the 'Engineers ' at places).
While the President was the appointing authority of the Engineers, the Railway Board was the appointing authority of the Officers.
Both the members of these services on selection were due for different courses of training earmarked separately.
There were a host of other factors which distinguished the quality and character of the personnel of the two parallel services as elaborately detailed in Katyani Dayal 's case (supra).
Between the years 1955 and 1964, as many as 553 officers (temporary Assistant Engineers) were appointed by the Railway Board through the Union Public Service Commission.
Though in the letters of appointment the officers (temporary Assistant Engineers) and others concerned were told that six of them, would be absorbed into the Indian Railway Service of Engineers (Class 1) every year, this figure in the subsequent years was increased from time to time when in 1975, the figure as increased stood at 25 per year.
The net result was that after absorption, 107 Officers were residually left unabsorbed in the year 1976 by the time of the filing of the connected writ petitions in Katyani Dayal 's case and they too were finally absorbed in 1979 by What was described as a "blanket order".
Before hand on September 17, 1965, the Railway Board had taken a decision to the effect that the Officers so absorbed into the Indian Service of Engineers would be given weightage in seniority "on the basis of half the total years of continuous service in working posts in Railways prior to their permanent absorption into Class. 1, subject to a maximum weightage of five years".
The then writ petitioners, describing themselves as members of the Federation of Temporary Officers Association, Indian Railways joining with them, their President, Vice President and Secretary of the aforesaid Federation as writ petitioners approached this Court 1023 in a representative capacity to seek relief in their seniority status.
The principal claim of the writ petitioners was that Officers were appointed to temporary posts on the cadre of Engineers and that their seniority had to be reckoned on the basis of their length of continuous service, though they conceded that in any given year, the candidates appointed as Engineers on the basis of the results of the competitive examinations were placed above those appointed on the basis of selection by the Union Public Service Commission.
The challenge was to the authority of the Railway Board to create such an unclassified parallel service, something outside the preview of the Indian Railway Establishment Board.
Notwithstanding the procedure of selection so adopted the writ petitioners contended that they were recruited in Class I service and supported their claim on diverse grounds so as to obtain the result that all Assistant Engineers formed one class under the Indian Railway Establishment Board.
Challenge was made to the classification of personnel into those that were recruited on the basis of the competitive examinations and those that were recruited by selection, but both by Union Public Service Commission, terming it as arbitrary and not permissible under the equality clause in the Constitution.
Grievance was voiced that the right of absorption of a handful of temporary Engineers (Officers) every year into the Service of Engineers was arbitrary and inequituous resulting in grave injustice rendering decades of service of the Officers to a mere waste.
Unfortunately the then writ petitioners did not sue the respondents across in a representative capacity.
In the fitness of things it would have been appropriate for the then writ petitioners to either involve all parties who could possibly have an interest or a likely affectation in the litigation, or to sue them in a representative capacity if not individually.
However some people did get impleaded as parties in that case to project their.
point of view and due to the nature of dispute those predominantly were members of the Indian Railways Service of Engineers Class 1.
This Court while dismissing the writ petitions held that the classification of temporary Assistant Officers separately from the Indian Railway Service Engineers of Class I was neither discriminatory nor violative of Articles 14 and 16 of the Constitution, for the reason that it had nexus to the object sought to be achieved, which mainly was efficiency of service, and that both the services had started separately and never became one.
This Court further viewed that the object of recruitment being different, the methods of recruitment dissimilar, the appointing authority being not the same, the training imparted to the two unlike, the tenure of temporary Assistant Officers being precarious, and their maximum aspiration being only to be absorbed into the Indian Railway Service of Engineers Class 1024 were distinctive features and, therefore, no question of their entitlement to equal rights arose until and unless the temporary Assistant Officers got absorbed into the Indian Railway Service of Engineers Class 1.
This court also ruled that the.
seniority of the.absorbed temporary Assistant Officers would ordinarily reckon from the date of their absorption into the Indian Railway Service of Engineers Class I as stipulated in their letters of appointments With regard to the time factor, this Court also took into account the long wait involved in the process but all the same approved of the measures of the Railway Board in lessening the Iona wait by giving them weightage of half of the length of service as temporary Assistant Officers subject to the maximum of five years.
And lastly this court rejected the claim of the temporary Assistant Officers asking for "equal status for equal pay and equal work" leaving a ray of hope that such goal might be achieved in the not too distant future.
The instant batch of matters is virtually on the same lines as of Katyani Dayal 's case claiming the same relief and this time by the Temporary Assistant Officers through a body styled as the Federation of Directly Appointed Officers (Suppressed) of Indian Railways and a few others, in a representative capacity across which stand arrayed the Union of India and the Railway Board as respondents.
When this matter came up for hearing on 15 March, 1990 before a three judge Bench in which one of us (Punchhi, J.) was a member, it was It that the affected parties should be impleaded in their representative capacity so as to make the decision of this Court binding on every member of both the classes of employees.
The requisite direction was thus made and carried out.
Pursuant thereto some private respondents on record represent the entire body of similarly placed Engineers, Thus both sides have sued and are being sued in their representative capacity.
Mr. R.K. Garg, learned counsel for the petitioners has spear headed the claim of the temporary Assistant Officers on the basis of the so called developing concept of Article 14 in the years gone by, especially in the field of the right to equality in matters relating to employment on appointment in service.
He asserts that the development of law has gone a long way so as to shed the views expressed in Katyani Dayal 's case justifying demolition of the demarcation between the two services made as it was in Katyani Dayal 's case examining the question afresh in the light of Raghunandan Prasad Singh vs Secretary, Home (Police) Department, Government of Bihar & Ors [1988] Supp.
SCC 519, Dr. O.Z Hussain vs Union of India [1990] Supp.
SCC 688 at 691, & Direct Recruit Class II Engineering of officers Association vs State of Maharashtra & Others ; and 1025 other cases.
It was contended that Katyani Dayal 's case upholding the creation of temporary posts outside the service was on the basis which has since been eroded and "equal pay for equal work" with equality in all other conditions of service including avenues of confirmation, absorption, promotion, pension and security have become inflexible postulates of service jurisprudence.
On the other hand, learned counsel for the respondents has opposed such method contending that what is being asked is a virtual review of Katyani Dayal 's case which is not permissible by means of successive writ petitions.
Addedly it is urged that principles of constructive res judicata would bar the re agitation of the issues decided in Katyani Dayal 's case, if not the strict principles of res judicata.
Lastly it was urged that when the matter has been settled in this particular service, its unsettling by means of a petition under Article 32 of the Constitution is impermissible.
We were taken through Katyani Dayal 's case extensively.
What we find is that the distinction and the classification of the temporary Assistant Officers and members of the Indian Railway Service of Engineers Class I fell clearly to be identified and marked.
The only method of fusion was by means of a phased absorption as noticed in paragraph 9 of the Report detailed above.
The scheme having met with approval of this Court cannot by mere passage of time be taken to have become vulnerable by subsequent exponence and dimension of Article 14 of the Constitution.
This Court in Katyani Dayal 's case specifically said that relief of equality was being denied to the then petitioners because of the history, origin, and structure of the Services.
No opinion was expressed however as to the validity of the given weightage of half the length of service to Temporary Assistant Officers.
subject to a maximum of five years, because of its being questioned elsewhere.
We are unable to make any headway or act in judicial indiscipline towards widening the scope of these matters in the face of the Constitution Bench decision of Direct Recruit 's case (supra).
Amongst the conclusions summed up by the Constitution Bench conclusion (J) and (K) seal the fate of these matters.
These are: "(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error.
It is not in the interest of service to unsettle a settled position.
(K)That a dispute raised by an application under Article 32 of the 1026 Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata if the same has been earlier decided by a competent court by a judgment which became final.
" The distinction between, the two services was well marked in Katyani Dayal 's case (supra) and the important question of equality was once for all settled.
To find fault with it, at this juncture again on the touch stone of equality dimension would be to unsettle a settled position.
That venture is neither in the interest of justice nor in the interest of service.
When there has been complete absorption of the personnel of one service into the other, and the seniority of the absorbers is to be reckoned from their date of absorption as stipulated in their appointment matters and as held by this Court with weightage of half the length of service subject to a maximum of five years, it would otherwise be imprudent now, at this point of time to dig up old issues.
The rule of weightage also appears to us to be reasonable and this is a pattern which has been noticed and approved in many a Service.
Similarly when the dispute raised between the Officers in a representative capacity and Engineers not so represented, in Katyani Dayal 's case (supra), still it was a dispute raised before this Court which has been decided finally.
A dispute now sought to be raised under Article 32 of the Constitution between the Officers in a representative capacity and Engineers across also in a representative capacity must be held to be barred by principles of res judicata as also in the rule of constructive res judicata.
The cases aforementioned relied upon by learned counsel for the petitioners/appellants do not remove this hurdle, however, broadly may Article 14 and 16 be viewed and expanded.
It is thus unnecessary to elaborate those cases and discover their ratio.
The are argument of learned counsel for the appellant that the State is prohibited to create separate channels of service and create discrimination by making one as an isolated one, and not providing for promotional avenues reasonably, falls to the ground in view of the bar of re agitation erected by Direct Recruit 's case (supra).
Equally when absorption had been made possible and its pace quickened with weightage, it is difficult to find fault with the scheme at this point of time to look for a substitution at our end, as that would unsettle a settled position, established more than a decade ago.
We also do not see any compelling reasons to deviate from the principles enunciated in the judgment.
At this point of time the bars erected by Direct Recruit 's case (supra) appear to us to have further thickened goading us to refrain from the exercise of any undoing.
We thus leave the matter as it is.
It needs mentioning that the appeals being decided instantly are against the judgments and orders of the High Court rejecting writ petitions of the petitioners 1027 before it on the basis of Katyani Dayal 's case (supra).
No details of these cases are necessary to dispose of these appeals for the reasons stated above.
As a result these petitions and appeals tail, but without any order as to costs.
In view of the dismissal of the main matters, no orders are necessary on all the C.M.Ps.
G.N. Matters dismissed.

dataset_name: IN-Abs

summary/full:
There were two parallel Services of Engineers in the Indian Railways.
One was the Indian Railways Service of Engineers (Class (I) who were subjected to competitive written and personality tests and appointed by the President of India.
The other Service was the temporary Assistant Engineers (later known as Temporary Assistant Officers) appointed by the Railway Board, on selection based (on interview alone.
In addition to the minimum educational qualifications which was the same for both the services three years experience as Civil Engineer was required for the Railway Service of Engineers.
The temporary Assistant Officers were gradually absorbed into the Indian Railway Service of Engineers and the Railway Board took a decision that they would be given weightage in seniority on the basis of half the total length of continuous service in working posts in Railways prior to their permanent absorption into Class I subject to a maximum weightage of five years.
Writ Petitions were filed in this Court by the Federation of Temporary Officers Association in a representative capacity seeking relief in their seniority status.
This Court dismissed the Writ Petitions holding that the classification of temporary, Assistant Officers separate from the Indian Railway Service 1019 Engineers Class I, was neither discriminatory nor violative of Articles 14 and 16 of the Constitution; and that the object of recruitment, methods of recruitment, appointing authority and training imparted being different, no question of their entitlement to equal rights arose fill they were absorbed into the Indian Railway Service of Engineers Class 1.
This Court also approved ,the measures of the Railway Board in regard to giving weightage of half the length of service as temporary Assistant Officers subject to a maximum of five years.
Their claim for equal status for equal pay and equal work was also rejected.
(Katyani Dayal & Ors.
vs U.0.1.
; In the present Writ Petitions and Civil Appeals filed in a representative capacity, the relief claimed were on the same lines as in Katyani Dayal,s case.
As directed by this Court the affected parties were impleaded in their representative capacity, so that the decision of this.
Court would he binding on every member of both the classes of employees.
On behalf of the Petitioners/Appellants, it was contended that equal pay for equal work with equality in all other conditions of service including avenues of confirmation, absorption, promotion, pension and security have become inflexible postulates of service jurisprudence.
The respondents contended that what was being asked was a virtual review of Katyani Dayal 's case which could not be permitted.
It was also contended that principles of constructive res judicata would bar the re agitation of the issues decided in Katyani Dayal 's case if not the strict principles of res judicata ; and that when the matter has been settled in this particular service, its unsettling by means of a petition under Article 32 of the Constitution was impermissible.
Dismissing the matters, this Court HELD: 1.
The distinction between the two services was well marked in Katyani Dayal 's case and the important question of equality was once for all settled.
To find fault with it, at this juncture again on the touch stone of equality dimension would be to unsettle a settled position.
That venture is neither in the interest of justice nor in the interest of service.
When there has been complete absorption of the personnel of one service into the other, and the seniority of the absorbers is to he reckoned from their date of absorption as stipulated in their appointment letters with weightage of half the length of 1020 service subject to a maximum (of give years, it would otherwise be imprudent now.
at this point of time to dig up old issues, The rule or weightage also appears to be reasonable and this is a pattern which has been noticed and approved In many a Service.
Similarly when the dispute raised between the Officers in a representative capacity and Engineers riot so represented, still it was a dispute raised before this Court which has been decided finally.
(1026 B D) Katyani Dayal Ors.
vs Union of India & Ors,[1980] 3 SCR 139 referred to.
The dispute now sought to he raised under Article 32 of the Constitution between the Officers in a representative capacity and Engineer.% across also in a representative capacity is barred by principles of res judicata as also by the rule of Constructive res judicata.
(1026 D E) 3.
It cannot he said that the State is prohibited from creating separate channels of service.
Equally when absorption had been made possible and its pace quickened with weight age, it is difficult to find fault with the scheme at this point of time to look for a substitution, as that would unsettle a settled position, established more than a decade ago.
(1026 E F) Direct Recruit Class II Engineering Officers Association vs State of Maharashtra & Others ; , followed.
Raghunandan Prasad Singh vs Secretary, Home (Police) Department Government of Bihar and Ors. & Dr. O.Z Hussain vs Union of India,[1990] Supp.
SCC 688, referred to.


judgement:
Appeals Nos. 722 and 723 of 1993.
From the Judgment and Order dated 13.11.92 of the Allahabad High Court in W.P. Nos.
688 & 1246 of 1992.
WITH CIVIL APPEALS NOS.
386 and 387 of 1993 From the Judgment and Order dated 13.11.92 of the Allahabad High Court in W. P. Nos. 8 19 and 888 of 1992.
Rajiv Dhawan, P.K. Dey and Rakesh Gosian, Ms. Rani Jethmalani, (N.P.) for the Appellants in C.A. Nos.
722 23/93.
R.P. Saxena for the Appellants in C.A. Nos. 386 87/93.
Yogeshwar Prasad and Ms. Rachna Gupta for the Respondent.
J The appellants in Civil Appeals Nos.
722 & 723 of 1993 had been appointed as Assistant District Government Counsel (Criminal) to appear in different criminal cases, on behalf of the State, in different Courts in the District of Moradabad.
They filed the connected Writ Applications before the High Court against the decision of the State Government, refusing to extend their term for a farther period of three years, which were dismissed by the High Court.
It appears that the appellants.
except appellant No. 3, Gopal Sharma. had been appointed by Government Order dated 25.2.91.
as Assistant District Government Counsel (Criminal) in the District of Moradabad, in accordance with the provisions of Section 24 of the Criminal Procedure Code (hereinafter referred to as "the Code") and the Legal Remembrancer Manual (hereinafter referred to as "the Manual") against the substantive vacancies.
Appellant No. 3, however, had been appointed on 13.12.1990.
The last date of the tenure of the appellants, other than appellant No. 3, as mentioned in the aforesaid Government Order dated 25.
2.1991 was 31.12.199 1.
The tenure of appellant No. 3 was up to 13.12.199 1.
It is not in dispute that before the expiry of the term aforesaid, the District Judge, Moradabad, by his letter dated 27.12.1991 recommended the names of appellants for extension of their terms.
The District Judge prepared two lists i.e. 'A ' and 'B '.
List 'A ' contained the name of those lawyers "whose work and conduct has been approved for their extension as Government Counsel", whereas List `B ' contained the names of the remaining Government Counsel, who in the opinion of the District Judge were "average lawyers".
The names of the appellants are in List 'A ' The District Judge requested the District Magistrate.
Moradabad.
to send his recommendation to the State Government for extension of the term of tile Government Counsel, mentioned in List 'A '.
The District Magistrate.
after receipt of the recommendation of the District Judge aforesaid, by a communication dated 2.1.92, did not recommended the names of the appellants, for extension of their terms, saying that on the inquiry at his level, "reputation, professional work, behaviour and conduct of the above mentioned Government Counsel was not found in accordance with public interest".
It may be mentioned that on 28.12.9 1. tile State Government had extended the terms of the appellants till further orders.
Ultimately, without assigning any reason, the extension recommended by the District Judge was rejected by the State Government, which decision is the subject matter of the controversy in the present appeals.
In the State of U.P., the Manual is an authoritative compilation of the government orders and instructions for the conduct of legal affairs of the State Government.
Para 1.00 of Chapter VII gives the details of the Law Officers of the Government which includes the Government Counsel (Civil, Revenue, Criminal) 975 along with many others like Judicial Secretary and Legislative Secretary.
The Chapter VII of the contains the procedure in respect of appointment and conditions of engagements of District Government Counsel.
The District Officer is required it) consider all the applications received.
in consultation with the District Judge and to submit in order of preference the names of ' the legal practitioners, along with the opinion of the District Judge on tile suitability and merit of each candidate to the State Government giving due wightage to the claim of the existing incumbents, if any.
After the receipt of such recommendations, the Legal Remembrancer is required is required to submit the said recommendations with his own opinion for the orders of the State Government.
In Para 7.06 of the Manual, the procedure regarding the appointment and renewal has been prescribed "7.06.
Appointment and renewal (1) The legal practitioner finally selected by the Government may be appointed District Government Counsel for one year from the date of his taking over charge.
(2)At the end of the aforesaid periodic the District Officer after consulting the District Judge shall submit a report on his work and conduct to the legal Rememberancer together with the statement of work done in Form No. 9.
Should his work or conduct be found to he unsatisfactory the matter shall be reported to the Government for orders.
If the report in respect of his work and conduct is satisfac tory, he may be furnished with a deed of engagement in Form No. 1 for a term not exceeding three years.
On his first engagement a copy of Form No.2 shall he supplied to him and lie shall complete and return it to the legal Remembrancer for record.
(3)The appointment of any legal practitioner as a District Government Counsel is only professional engagement terminable at will on either side and is not appointment to a post under the government.
Accordingly the government reserves the power to terminate the appointment of any District Government Counsel at any time without assigning any cause.
" Para 7.08 contains the procedure for renewal after expiry of the original term: "7.08.
Renewal of term (1) At least three months before the expiry 976 of the term of a District Government Counsel, the District Officer shall after consulting tile District Judge and considering, his past record of work, conduct and age, report to the Legal Remembrancer together with the statement of work done by him in Form No.9 whether in his opinion the term of appointment of such counsel should be renewed or not.
A copy of the opinion of the District Judge should also he sent along with the recommendations of the District Officer.
(2)Where recommendation for the extension of the term of a District Government Counsel is made for a specified period only the reasons therefore shall also he stated by the District Officer.
(3) While forwarding, his recommendation for renewal of the term District Government Counsel (i) the District Judge shall give an estimate of the quality of the Counsel 's work from the judicial standpoint, keeping, in view the different aspects of a lawyers capacity as.
it is manifested before him in conducting, State cases, and specially his professional conduct.
(ii) the District Officer shall give his report about the suitability of the District Government Counsel from the administrative point of view, his public reputation in general his character.
integrity and professional conduct.
(4) If the Government agrees with the recommendations of the District Officer for the renewal of the term of the Government Counsel, it may pass orders for re appointing him for a period not exceeding three years.
(5) If the government decides not to re appoint a Government Counsel, the Legal Remembrancer may call upon the District Office r to forward fresh recommendations in the manner laid down in para 7.03.
(6) The procedure prescribed in this para shall be followed on the expiry of every successive period of renewed appointment of a 977 Dist Government Counsel.
Note : The renewal beyond 60 years of age shall depend upon continuous good work, sound integarity and physical fitness of the Counsel.
It was pointed out on behalf of the appellants, that any legal practitioner finally selected by the Government may be appointed as District Government Counsel for one year from the date of his taking over charge, but in view of Para 7.06 of the Manual at the end of the aforesaid period the District Magistrate after consulting the District Judge has to submit a report on his work and conduct to the Legal Remembrancer in the form prescribed.
If the report in respect of his workand conduct is satisfactory, then such Counsel shall be furnished with a deed of engagement in form No. 1 for a term not exceeding three years.
Para 7.08 of the Manual contains the procedure for renewal of the term of the District Government Counsel after the expiry of original term.
It requires the District Officer at least three months before the expity of the term of a District Government Counsel to report to the Legal Rmembrancer after consulting the District Judge and considering the past record of work conduct and age of such District Government Counsel.
If the Government agrees with the recommendation it may pass an Order re appointing him for a period not exceeding three years.
The stand of the appellants is that in view of Para 7.06(2), the appointment of any legal practitioner as a District Governemnt Counsel, does not automatically come to an end rather it indicates and element of continuity and that is why Para 7.06(2) requires the District Officer at the end of period of one year to submit a report after consulting the District Judge concerned in respect of the work and conduct of such District Government Counsel to the Legal Remembrancer in a form prescribed.
If the report in respect of work and conduct is satisfactory then such District Government Counsel shall be furnished with a deed of engagement in a form prescribed for a term not exceeding three years.
As such after the period of one year if the engagement for a further period upto three years is not given, it amounts to a stigma.
On behalf of the appellants attention of this Court was drawn to a letter addressed to the District Magistrate by Dr. Nepal Singh, M. L.C., the District President of the party then in power recommending the names of other Government Counsel for renewal/extension of their term.
It was pointed out that in respect of all those persons.
The District Magistrate has recommended for extension.
There is however, no material before us to show that the District 978 Magistrate was influenced by the said letter in any manner.
A part form that the persons so resommended by the District Magistrate were not impleded as respondents to the Writ applications.
As such we are not inclined to go into this aspect.
The different paragraphs of the Manual aforesaid were examined in detail in the case of Kumari Shrilekha Vidyarthi vs State of U. P. , in connection with an order dated February 6, 1990 issued by the State of U. P. terminating the appointments of all Government Counlsel ( Civil Criminal and Revenue) in all the districts of the State of U.P. with effect from February 28, 1990 and directing the preparation of fresh panels for making appointments in places of the existing incumbents.
while quashing such general order it was said: Viewed in any manner the impugned circular dated February 6, 1990 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 UttarPradesh at the hearing that many of them were likely to be re appointed is by itself ample proof of the fact that 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 lying down detailed procedure for appointment, termination and renewal of tenure and the requirement to first consider the existiong incumbent for renewal of his tenure and to take steps for a fresh appointment in his place only if the existing incumbent is notfound 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 materialhas 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 tatally igonered.
In the present case it appears to be an admitted position that appointments of the appellants as assistant District Government Counsel (Criminal) is governed 978 979 .LM0 by Section 24 of the Code, as well different paragraphs of Chapter VII of the Manual.
It was not disputed on behalf of the State, that appellants shall be deemed to be Additional Public Prosecutors within the meaning of Section 24 of the Code, although in the order of appointment they have been designated as Assistant District Government Counsel (Criminal).
The procedure prescribed in the Manual can be observed and followed as supplemental to the provisions of Section 24 of the Code.
Needless to say that, if there is any conflict, then Section 24 of the Code being statutory in nature will override the procedure prescribed in the Manual.
The relevant part of Section 24 is as such "24.
Public Prosecutors (1) For every High Court, the Central Government of the State shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution,appeal or other proceedings on behalf of the Central Government or State Government, as the case may be.
(2). . . . (3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district: Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may he appointed also to be a Public Prosecutor as the case may be for another district.
(4)The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are.
in his opinion, fit to he appointed as Public Prosecutors or Additional Public Prosecutors for the district.
(5) No Person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub section (4).
" The Code prescribes the procedure for appointment of Public Prosecutor and Additional Public Prosecutor, for the High Court and the District Courts by the State Government.
The framers of the Code, were conscious of the fact, that the Public Prosecutor and the Additional Public Prosecutor have an important role, 980 while prosecuting on behalf of the State, accused persons, who are alleged to have committed one or the other offence.
Because of that, provisions have been made for their selection in the Code.
It is for the Sessions Judge to assessee the merit and professional conduct of the persons recommended for such appointments and the District Magistrate to express his opinion on the suitability of persons so recommended, from the administrative point of view.
Sub section (5) of Section 24 provides that no person shall be appointed by the State Government as the Public prosecutor or as an Additional Public Prosecutor "unless his name appears in the panel of names prepared by the District Magistrate under sub section (4)".
The aforesaid section requires an effective and real consultation between the Sessions Judge and the District Magistrate, about the merit and suitability of person it) he appointed as Public Prosecutor or as an Additional Public Prosecutor.
That is why it requires, a panel of names of persons, to be prepared by the District Magistrate in consultation with the Sessions Judge.
The same is the position so far the Manual is concerned.
It enumerates in detail, how for purpose of initial appointment extension or renewal, the District Judge who is also the Session Judge, is to give his estimate of the quality of the work of the Counsel from the judicial Standpoint and the District Officer i.e. the District Magistrate is to report about the suitability, of such person, from administrative point of view.
On behalf of the State, our attention was drawn to the expression "in his opinion" occurring in sub section (4) of Section 24 of the Code.
It was urged that as the Code vests power in the District Magistrate to consider the suitability of the person concerned, for appointment, according, to his opinion, there is not much scope of judicial review by Courts, unless a clear case of malice on the part of the District Magistrate is made out.
In view of the series of judgments of this Court in Barium Chemicals Ltd vs Company Law Board, ; ; State of Assam Bhatrai Kala Bhandar Ltd.
AIR , Rohtas Industries Ltd. vs S.D. Agarwal; , , The Purtapur Company Ltd. vs Cane Commissioner of Bihar AIR 1970 SC 1896 and M.A. Rasheed vs The State of Kerala; , , it is almost settled that, although power has been vested in a particular authority, in subjective term:, still judicial review is permissible.
In the present case the District & Session Judge strongly recommended extension for the appellants, saying that so far their work and conduct were concerned, the same had been approved.
But the District Magistrate, simply said that on the inquiry at his level "reputation, professional work, behaviour and conductor the appellants as government counsel was not found in accordance with the public interest".
The quality of the Counsel ' work has to be judged and assessed 981 by the District & Sessions Judge.
The District Magistrate is required to consider the suitability of such person, from the administrative point of view.
According to us, in view of the strong recommendation about the quality of the appellants ' professional work, the District Magistrate should have applied his mind in consultation with the Sessions Judge.
in respect of each individual case.
instead of making a general and identical comment against all the appellants.
Apart from that the mandate of sub section (4) of Section 24 is that "the District Magistrate shall, in constitution with the Session Judge, prepare a panel of names of persons".
Sub section (5) of Section 24 prescribes a statutory bar that no person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district "unless his name appears in the panel of names prepared by the District Magistrate under sub section (4)".
When sub section (4) and sub section (5) of Section 24 of the Code, speak about preparation of a panel, out of which appointments against the posts of Prosecutor or Additional Public Prosecutor have to he made.
then the Sessions Judge and the District Magistrate are required to consult and discuss the names of the persons fit to be included in the panel and to include such names in the panel.
The expressions "panel of names of persons", do not mean that some names are to be suggested by the Sessions Judge and some comments are to be made, in respect of those names by the District Magistrate, without proper consultation and discussion over such names.
The statutory mandate ought to have been complied with by the District Magistrate and the Sessions Judge in its true spirit.
In the facts of the present case, no such panel appears to have been prepared by the District Magistrate in terms of sub section (4) of Section 24.
As Section 24 of the Code does not speak about extension or renewal of the term of the person so appointed, the same procedure, as provided under sub section (4) of Section 24 of the Code, has to be followed.
In the present case the District Magistrate instead of having an effective and real consultation with the District & Sessions Judge simply made some vague and general comments against the appellants, which cannot be held to he the compliance of the requirement of subsection (4) of Section 24.
In the case of Kumari Shrilankha Vidyarthi (supra), this Court was not concerned with the question regarding the extension/renewal of the terms of the Government Counsel.
The primary question which was examined by this Court in that case, was as to whether it was open to the State Government by the impugned circular dated February 6, 1990.
to terminate appointments of all the Government Counsel in the different districts of the State, by an omnibus order, even though those appointments were all individual.
It was held that any such exercise of power by the State Government cannot satisfy the test of Article 14 of the Constitution 982 and as such was unreasonable and arbitrary.
In that connection reference was made to the Manual aforesaid and it was pointed out that the said Manual has laid down detailed procedure for appointment, termination and renewal of the tenure of the District Government Counsel.
It was pointed out, that different paragraphs of the Manual require, first to consider the existing incumbents for extension and renewal of their tenure and to take steps for fresh appointment in their place, if the existing incumbents were not found suitable in comparison to more suitable persons available for appointment at the time of the renewal.
As already mentioned above.
Section 24 of the Code does not speak about the extension or renewal of the term (if the Public Prosecutor or Additional Public Prosecutor.
But after the expiry of the term of the appointment of persons concerned.
it requires the same statutory exercise, in which either new persons are appointed or those who have been working as Public Prosecutor or Additional Public Prosecutor.
are again appointed by the State Government, for a fresh term.
The procedure prescribed in the Manual to the extant it is not in conflict with the provisions of Section 24.
shall he deemed to be supplementing the statutory provisions.
But merely because there is a provision for extension or renewal of the term, the same cannot he claimed as a matter of right.
It is true that none of the appellants can claim, as a matter of right, that their terms should have been extended or that they should be appointed against the existing vacancies but certainly they can make a grievance that either they have not received the Pair treatment by the appointing authority or that the procedure prescribed in the Code and in the Manual aforesaid.
have not been followed.
While exercising the power of judicial review even in respect of appointment of members of the legal profession as District Government Counsel the Court can examine whether there was any infirmity in the "decision making process.
" Of course, while doing so the Court cannot substitute its own judgment over the final decision taken in respect of selection of persons for those posts.
It was said in the case of Chief Constable of the North Wales Plice vs Evans.(1982) ; "The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according Pair treatment.
reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the court.
" In the facts of the present case, the procedure prescribed by Section 24 of the Code have not been followed by the District Magistrate.
There is nothing on the 983 records of the case to show that any panel as required by sub section (4) of Section 24 was prepared by the District Magistrate in consultation with the District & Sessions Judge.
The District Magistrate simply made some general comment in respect of the appellants.
When the District & Sessions Judge had put them in List 'A ' of his recommendation.
According, to us, this shall not amount to either the compliance of 'sub section (4) of Section 24 of the Code or Para 7.06(2) of the Manual.
It appears there has been no effective or real consultation between the Sessions Judge and the District Magistrate for preparation of the panel, as contemplated.
by sub section (4) of Section 24 of the Code.
The members of the legal profession are required to maintain high standard of legal ethics and dignity of profession.
They are not supposed to solicit work or seek mandamus from courts in matters of professional engagements.
We have been persuaded to interfere in these matters to a limited extent, as we are satisfied that there is patent infraction of the statutory provisions of the Code.
As we are of the view that the District Magistrate has not performed his statutory duty as enjoined by law, the appeals of the appellants have to be allowed.
In the result, the appeals are allowed.
We direct the District Magistrate, Moradabad, to perform his statutory duty afresh.
in accordance with the requirement of Section 24 of the Code read with the relevant paragraphs of Chapter VII of the Manual, which are not inconsistent with Section 24 of the Code.
so far the appellants are concerned, if the vacancies are still there.
The necessary steps shall be taken preferably within four months from the date of this judgment.
the State Government shall thereafter perform its part in accordance with Section 24 and different paragraphs of the Manual which are applicable in the facts and circum stances of the case.
We make it clear that we are not expressing any opinion on the merit of the claim of the appellants to get extension or appointment against the posts of Assistant District Government Counsel (Criminal).
There will he no order as to costs.
CIVIL APPEALS NOS.
386 & 387 OF 1993 So far the appellants of these appeals are concerned, their names were put under List 'B ' by the District & Sessions Judge in his recommendation saying that they were "average lawyers".
Their case stands on a different footing.
The District & Sessions Judge.
who is required to express his opinion on the merit and the conduct of the persons recommended for appointment or extension of the period 984 as District Government Counsel, has expressed the opinion that appellants are "average lawyers" and has put them in List B.
In other words, neither the District & Sessions Judge has recommended the case of the appellants of these appeals for extension nor the District Magistrate.
Their case cannot be treated at par with the appellants of the other appeals.
In such as situation, no useful purpose will be served by directing the District Magistrate to perform his statutory duty as required by sub section (4)of Section 24 of the Code again, even the respect of these appellants.
Accordingly, these appeals are dismissed.
there will be no orders as to costs.
V.P.R, C.A. Nos. 722 and 723/93 allowed.
C.A. Nos. 386 and 387/93 dismissed.

summary/full:
On 25.2.91 the appellants except appellant No. 3 were appointed as Assistant District Government Counsel (Criminal) in accordance with the provisions of Section 24 of the Criminal Procedure Code and the Legal Remembrancer Manual.
The appellant No.3 was appointed on 13.12.1990.
The last date of the tenure of the appellants, except appellant No.3, was 31.12.1991, where as the tenure of appellant No.3 was upto 13.12.1991.
Before 970 the expiry of their terms, the District Judge, preparing two lists, 'A ' and `B ' recommended the appellants ' names for extension of their tenures.
List `A ' contained the names of Lawyers (including the appellants), whose work and conduct was approved for their extension, whereas List 'B ' contained the remaining names of the lawyers (including appellants in C.A. Nos. 386, 387/ 1993) who were considered as 'average lawyers '.
The District Judge requested the District Magistrate to send his recommendation to the State Government.
The District Magistrate did not recommend the appellants ' names as their reputation, professional work, behaviour and conduct was not found in accordance with public interest.
On 28.12.1991 the State Government extended the terms of the appellants till further orders.
Later without assigning any reason, the extension recommended by the District Judge was rejected by the State Government.
The appellants filed writ petitions in the High Court against the Government 's decision.
The High Court dismissed their writ applications, against which the present appeals were filed by special leave before this Court.
C.A. Nos. 386 & 387 OF 1993.
The appellants ' names were included in the List 'B ' prepared by the District Judge.
The State Government rejected the recommendation of the District Judge, without assigning any reason.
The writ petitions preferred by them in the High Court were dismissed.
Hence these appeals by special leave.
As there was a common issue arose in these appeals, same were heard and decided together.
The appellants contended that in view of Para 7.06(2) of the Legal Remembrancer Manual the appointment of any legal practitioner as a District Government Counsel did not automatically come to an end.
The State submitted that as Section 24(4) of the Code of Criminal Procedure vested power in the District Magistrate to consider the suitability of the person concerned, for appointment, according to his opinion, as such there was not much scope of judicial review by Courts, unless a clear case of malice on the part of the District Magistrate was made out.
971 Allowing the Civil Appeals Nos. 722 and 723 of 1993 and dismissing the Civil Appeal Nos. 386 and 387 of 1993, this Court.
HELD:1.1.
When sub section (4) and sub section (5) of Section 24 of the Code of Criminal Procedure, speak about preparation of a panel, out of which appointments against the posts of Prosecutor or Additional Public Prosecutor have to be made, then the Sessions Judge and the District Magistrate are required to consult and discuss the names of the persons fit to be included in the panel and to include such names in the panel.
1.2.The expressions "panel of names of persons", do not mean that some names are to be suggested by the Sessions Judge and some comments are to be made, in respect of those names by the District Magistrate, without proper consultation and discussion over such names.
The statutory mandate ought to have been complied with by the District Magistrate and the Sessions Judge in its true spirit.
1.3.Section 24 of the Code does not speak about the extension or renewal of the terms of the Public Prosecutor or Additional Public Prosecutor.
But after the expiry of the term of the appointment of persons concerned, it requires the same statutory exercise, in which either new persons are appointed or those who have working as Public Prosecutor or Additional Public Prosecutor, are again appointed by the State Government, for a fresh term.
The procedure prescribed in the Manual to the extent it is not in conflict with the provisions of Section 24, shall be deemed to be supplementing the statutory provisions.
But merely because there is a provision for extension or renewal of the term, the same cannot be claimed as a matter of right.
1.4.While exercising the power of judicial review even_in respect of appointment of members of the legal profession as District Government Counsel, the Court can examine whether there was any infirmity in the "decision making process".
Of course, while doing so, the Court cannot substitute its own judgment over the final decision taken in respect of selection of persons for those posts.
Chief Constable of the North Wales Police vs Evans, [1982]3 All E.R. 141, referred to.
1.5.In the facts of the present case, the procedure prescribed by Section 24 of the Code have not been followed by the District Magistrate.
There is 972 nothing on the records of the case to show that any panel, as required by sub section (4) of Section 24, was prepared by the District Magistrate in consul"on with the District & Sessions Judge.
The District Magistrate simply made some general comment in respect of the appellants, when the District & Sessions Judge had put them in List 'A ' of his recommendation.
This shall not amount to either the compliance of sub section (4) of Section 24 of the Code or Para 7.06(2) of the Manual.
It appears there has been no effective or real consultation between the Sessions Judge and the District Magistrate for preparation of the panel, as contemplated by sub section (4) of Section 24 of the Code.
1.6.The members of the legal profession are required to maintain high standard of legal ethics and dignity of profession.
They are not supposed to solicit work or seek mandamus from courts in matters of professional engagements.
1.7.In view of the strong recommendation about the quality of the appellant 's professional work, the District Magistrate should have Applied his mind in consultation with the Sessions Judge, in respect of each individual case, instead of making a general and identical comment against all the appellants.
1.8.As the District Magistrate has not performed his statutory duty as enjoined by law, the appeals of the appellants have to allowed.
1.9.The District Magistrate is directed to perform his statutory duty afresh, in accordance with the requirement of Section 24 of the Code read with the relevant paragraphs of Chapter VII of the Manual, which are not inconsistent with Section 24 of the Code, so far the appellants are concerned, if the vacancies are still there.
The necessary steps shall be taken preferably within four months from the date of this judgment.
The State Government shall thereafter perform its part in accordance with Section 24 and different paragraphs of the Manual which are applicable in the facts and circum stances of the case.
Kumari Shrilekha Vidyarthi vs State of U.P., , referred to.
2.The District & Sessions Judge, who is required to express his opinion ton the merit and the conduct of the persons recommended for appointment or extension of the period as District Government Counsel, has expressed the 973 opinion that appellants (in C. As.
386 387 of 93) are "average lawyers", and has put them in List 'B '.
In other words, neither the District & Sessions Judge has recommended the case of the appellants of these appeals for extension nor the District Magistrate.
Their case cannot be treated at par with the appellants of the other appeals.
In such a situation, no useful purpose will be served by directing the District Magistrate to perform his statutory duty, as required by sub section (4) of Section 24 of the Code again, even in respect of these appellants.
3.Although power has been vested in a particular authority, in subjective terms still judicial review is permissible.
Barium Chemicals Ltd, vs Company Law Board, AIR ; State of Assam vs Bharat Kala Bhandar Ltd , AIR ; Rohtas Industries Ltd. vs S.D. Agarwal, AIR ; The Purtabpur Company Ltd. vs Call e Commissioner of Bihar, AIR [1970] SC 1989 and; M.A. Rasheed vs The State of Kerala, AIR , relied on.