Rajesh Kumar Kulshrestha Vs. State of U.P. and ors. - Court Judgment

1. Record has been produced by learned Chief Standing Counsel Sri D.K. Upadhyaya.

With the consent of the parties counsel, the writ petition is being disposed of finally, as in view of the record produced, learned State counsel says that there is no need to file counter-affidavit.

2. The petitioner was initially empanelled as Additional District Government Counsel (Civil), Agra on 17-5-99. His term was renewed from time to time upto 1-7-03. On the renewal application of the petitioner, the District Judge, Agra on 18-7-03 submitted a favourable report recommending the name of the petitioner. The District Magistrate, Agra also agreed with the recommendaion for renewal of the term of the petitioner.

3. Since no orders were passed by the State Government either renewing or refusing, the renewal, the petitioner was allowed to discharge the functions of ADGC (Civil), a fact which is duly admitted to the State Government. He was thus, continuously attended the cases and was also being paid the fee during all the period.

4. It appears that in the meantime, some complaints were received against the petitioner in respect of the case of Saudan Singh, in which certain queries were also raised. Though no notice was issued to the petitioner even in regard to this allegation of not handling the case properly but the petitioner having learnt from other sources, tried to explain his conduct to the State Government by filing a representation on 15-11-07.

5. The record reveals and it is also the case of the respondent State that on the basis of the aforesaid case no action has been taken against the petitioner but in the meantime, allegedly certain other complaints were received by the District Magistrate and the District Magistrate vide his letter dated 18-4-08 forwarded it to the District Judge for sending the revised recommendation.

6. The District Judge in pursuance of the aforesaid directives of the District Magistrate submitted his report on 17-5-08.

7. The petitioner's plea is that the District Magistrate was having no authority to ask for change of recommendations by the District Judge and that too without affording any opportunity to the petitioner.

8. We have perused the record with the assistance of Sri D.K. Upadhyaya, learned Chief Standing Counsel. Nothing has been shown from the record which could establish that any notice was issued to the petitioner or any opportunity was ever afforded to him in respect of the complaint, which required the District Judge to submit a second report.

9. Learned State counsel has fairly stated that no notice with respect to these complaints was issued to the petitioner, nor was he associated in the enquiry.

10. An agreement has been raised that the petitioner was knowing the fact of the complaint as is evident by the fact that he has already submitted representations on 15-11-07 and again on 16-1-08 and therefore, no prejudice can be said to have been caused to him, for want of notice, but the said plea has been raised only for being rejected.

11. The petitioner even if had made some representation on 15-11-07 or 16-1-08, they related to some other case as is evident from the representation itself, apart from the fact that if the petitioner was to be discharged or discontinued from functioning of Additional District Government Counsel for some proved misconduct, it was essential to afford him due opportunity by informing him the said facts and thereafter, after considering the reply, some orders could have been passed. Since the earlier representations referred to above, do not relate to the complaints on the basis of which, the petitioner's renewal has been refused, and speak about the manner in which the petitioner is said to have conducted certain cases which find mention in the second report of the District Judge and admittedly no notice having been issued to the petitioner, requiring him to explain his conduct with respect to the aforesaid cases and no opportunity having been afforded to him either in the, enquiry conducted by the District Judge or before passing of the order by the State Government, we are of the considered opinion that such an order cannot be sustained.

12. We would also like to put on record that the ground on which the petitioner's renewal has been rejected is a serious ground and therefore, unless due opportunity is afforded to the petitioner and the allegations in this regard are found proved, such an order could not be passed.

13. We, therefore, quash the order dated 27-2-09, with liberty to the State Government to pass fresh order in case it so desires, after affording due opportunity to the petitioner.

14. We further direct that since the petitioner was continuing to function as Additional District Government Counsel till his renewal was rejected, he shall be allowed to discharge his functions as A.D.G.C. and shall be paid his fee etc., as per rules and on passing of the fresh order, his continuance would abide the orders so passed, subject to any challenge being made by the petitioner, which may be available to him in accordance with law, if he feels aggrieved by the order so passed.

15. The writ petition is allowed. No order as to costs.