STATE OF U.P AND ANR. versus JOHRI MAL

Citation: [2004] SUPP. 1 S.C.R. 560 · Decided: 21-04-2004 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
STATE OF U.P AND ANR. 
v. 
JOHRI MAL 
APRIL 21, 2004 
B 
[V.N. KHARE, CJ., BRIJESH KUMAR AND S.B. SINHA, JJ.] 
Constitution of India, 1950-Article 226-Judicial Review under-
Scope of-Held: Power of judicial review cannot assume supervisory 
C 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 
D d_etermined 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. 
E 
Code of Cri"!_inal Procedure, 197 3-Section 24-Uttar Pradesh Legal 
Remembrancer Manual-Paras 7.01 to 7.08 and Chapter XX!: 
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 
F not subject to judicial revie~Non-renewal can be subject to judicial review 
on the ground of arbitrariness or malice in /~ourt 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-
G 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 l 66(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 Stcite 
H 
560 
ST ATE v. JOHRI MAL 
561 
not wholly without jurisdiction and as such does not call for interference- A 
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- B 
They cannot claim right to be appointed-Article I 4 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-lntetpretation of-On facts, direction by C 
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 D 
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 I 42. 
E 
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(/) 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 F 
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: 
G 
Doctrine of 'Wednesbury Unreasonableness'-lnvoking of 
'Words and Phrases: 
'Consultation'-Meaning of. 
District Government Counsel (DGC) are appointed by the State ofUttar H 
562 
SUPREME COURT REPORTS [2004) SUPP. I S.C.R. 
A Pradesh for civil, criminal
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