Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Constitution of India 1950-Article 226 |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | Constitution of India, 1950-Article 226-Judicial Review under-Scope of-Held: Power of judicial review cannot assume supervisory governance under rule of law or areas reserved by supreme lax-Also decisions or actions not. having adjudicative disposition are not subject to judicial review-Scope of review is limited-While exercising the power, the court is concerned with the decision making process than merit of the decision for which it has to reappreciate findings of facts-Furthermore, State's action is subject to judicial review when there is a public law element-This is determined in each case having regard to the nature and authority vested in the State-Nature of actions cannot be generalized nor lists of actions, either public or private, can be given. Code of Criminal Procedure, 1973-Section 24-Uttar Pradesh Legal Remembrancer Manual-Paras 7.01 to 7.08 and Chapter XXI: District Government Counsel/Public Prosecutor--Appointment-Nature of-Held: ls a professional engagement and not a civil post-It is governed by the provisions of Cr.P.C and/or executive instructions framed by State Government and does not attract Article 309-Such appointment is normally not subject to judicial review-Non-renewal can be subject to judicial review on the ground of arbitrariness or malice in court would not examine as to what impelled State not to renew the tenure but would invoke doctrine of 'Wednesbury Unreasonableness'. Renewal of term-Held: Cr.P.C. does not provide for renewal of term-Manual though provides for renewal of term but being compilation of executive orders is not law under Article 13 and also not covered by Article 166(3)- However, in such matter State is to act fairly and reasonably and is to follow principles in the Manual-On facts, District Officer opined that tenure of DGC not to be renewed as he did not have effective control over other ADGs and the District Judge agreed thereto-Hence, non-renewal of term by State not wholly without jurisdiction and as such does not call for interference- Executive instructions-Administrative Law-Constitution of India, 1950- Article 309, 13, 166(3) and 226. District Government Counsel/Public Prosecutor-Appointment-Nature of office-Held: District Government counsel/Public Prosecutor hold office of great importance-DOC represents the State, thus, involves public element- They cannot claim right to be appointed-Article 14 is attracted to limited extent-Furthermore, the appointment to such a post should not be political and State should not rescind it with the change in the Government. District Government Counsel-Appointment and renewal of term- 'Consultation' with District Judge-lnterpretation of-On facts, direction by High Court regarding renewal of applicants' terms as DGC to be considered by collegium headed by District Judge relying on Special Reference No. 1 of 1998--Correctness of-Held: Appointment of DGC cannot be equated with the appointment of High Court and Supreme Court Judges as such reliance on Special Reference No. 1 of 1998 not correct and High Court erred in directing constitution of collegium-Consultation with District Judge must be effective one-He should take his colleagues into confidence-Further, High Court's power under Article 226 not at par with Supreme Court's power under Article 142-Thus, High Court cannot direct formulation of new principle contrary to the statutory provision-Constitution of India, 1950- Articles 226 and 142. Amendment of section 24-Deletion of requirement to consult the High Court for appointment of Public Prosecutors for High Court-Correctness of-Held: Amendment of section 24(1) and deletion of sub sections (4), (5) and (6) of section 24 is irrational-Even though Legal Remembrancer Manual lays down exhaustive provisions being complete code in itself does not render any help since law cannot be substituted by executive instructions-Section 24 being salutary, State is expected to amend the provision or consult the High Court despite deletion. Doctrines:Doctrine of 'Wednesbury Unreasonableness'-lnvoking of. Words and Phrases: 'Consultation'-Meaning of. |
Judge | Hon'ble Mr. Justice S.B. Sinha |
Neutral Citation | 2004 INSC 299 |
Petitioner | State Of U.p And Anr |
Respondent | Johri Mal |
SCR | [2004] Supp. (1) S.C.R. 560 |
Judgement Date | 2004-04-21 |
Case Number | 963-64 |
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