N.P. Upadhyay S/O Shri Heera Lal … vs Jaipur Development Authority on 25 March, 2026

March 30, 2026

Rajasthan High Court – Jaipur

N.P. Upadhyay S/O Shri Heera Lal … vs Jaipur Development Authority on 25 March, 2026

[2026:RJ-JP:12194]

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

S.B. Civil Writ Petition No. 18266/2025

Pratap Singh Son Of Shri Rammo Patel, Aged About 53 Years,
Resident Of 65-A, Surya Nagar, Budhsinghpura, Near Airport
Road, Excise Police Station Sanganer, Jaipur (Rajasthan).
----Petitioner
Versus
1. The Jaipur Development Authority, Through Its Secretary,
Jawahar Lal Nehru Marg, Jaipur (Raj.).
2. The Commissioner, Jaipur Development Authority, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur (Raj.).
3. The Director (Law), Jaipur Development Authority, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur (Raj.).
----Respondents
Connected With
S.B. Civil Writ Petition No. 6626/2021
Ram Singh Son Of Shri Ramesh Chand Dhakad, Aged About 47
Years, Resident Of 24A, Sachiwalya Vihar Extension, Kalyanpura,
Riico Kanta, Sanganer, Jaipur.
----Petitioner
Versus
1. Jaipur Development Authority, Through Its Secretary,
Indira Circle, Jln Marg, Jaipur.
2. Commissioner, Jaipur Development Authority, Indira
Circle, Jln Marg, Jaipur.
----Respondents
S.B. Civil Writ Petition No. 6629/2021
Rikhab Chand Dhakad Son Of Shri Ramesh Chand Dhakad, Aged
About 44 Years, Resident Of 24A, Sachiwalya Vihar Extension,
Kalyanpura, Riico Kanta, Sanganer, Jaipur.
----Petitioner
Versus
1. Jaipur Development Authority, Through Its Secretary,
Indira Circle, Jln Marg, Jaipur.
2. Commissioner, Jaipur Development Authority, Indira
Circle, Jln Marg, Jaipur.

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----Respondents
S.B. Civil Writ Petition No. 9107/2021
Omprakash Yadav Son Of Shri Ramlal Yadav, Aged About 45
Years, Resident Of Plot No. 127A, Vasundra Colony, Tonk Road,
Jaipur.
----Petitioner
Versus
1. Jaipur Development Authority, Through Its Secretary,
Indira Circle, Jln Marg, Jaipur.
2. Commissioner, Jaipur Development Authority, Indira
Circle, Jln Marg, Jaipur.
3. Director (Law), Jaipur Development Authority, Indira
Circle, Jln Marg, Jaipur.
----Respondents
S.B. Civil Writ Petition No. 9112/2021
Ram Awtar Sharma Son Of Shri Amarnarayan Sharma, Aged
About 50 Years, Resident Of 364, Nahargarh Road, Chandpole
Bazar, Jaipur.
----Petitioner
Versus
1. Jaipur Development Authority, Through Its Secretary,
Indira Circle, Jln Marg, Jaipur.
2. Commissioner, Jaipur Development Authority, Indira
Circle, Jln Marg, Jaipur.
3. Director (Law), Jaipur Development Authority, Indira
Circle, Jln Marg, Jaipur.
----Respondents
S.B. Civil Writ Petition No. 9751/2021
N.p. Upadhyay S/o Shri Heera Lal Upadhyay, Aged About 71
Years, R/o Plot No. 459, Laxman Path, Vivek Vihar, New
Sanganer Road, Jaipur, Rajasthan.
----Petitioner
Versus
1. Jaipur Development Authority, Through Its Secretary,
Indira Circle, J.l.n. Marg, Jaipur.
2. Director (Law), Jaipur Development Authority, Indira

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Circle, J.l.n. Marg, Jaipur.
----Respondents
S.B. Civil Writ Petition No. 18267/2025
Fateh Chand S/o Shri Shankar Lal, Aged About 47 Years, R/o
Shankar Sadan, Power House Road, Shri Ram Nagar, Phulera,
District Jaipur (Rajasthan)
----Petitioner
Versus
1. The Jaipur Development Authority, Through Its Secretary,
Jawahar Lal Nehru Marg, Jaipur (Raj.).
2. The Commissioner, Jaipur Development Authority, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur (Raj.).
3. The Director (Law), Jaipur Development Authority, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur (Raj.).
----Respondents
S.B. Civil Writ Petition No. 18268/2025
Dharmesh Jeph Son Of Mr. Moolchand Mina, Aged About 37
Years, Resident Of 4, Shri Vihar, Ram Path, Near Hotel Clarks
Amer, Jln Marg, Jaipur (Rajasthan).
----Petitioner
Versus
1. The Jaipur Development Authority, Through Its Secretary,
Jawahar Lal Nehru Marg, Jaipur (Raj.).
2. The Commissioner, Jaipur Development Authority, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur (Raj.).
3. The Director (Law), Jaipur Development Authority, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur (Raj.).
----Respondents
S.B. Civil Writ Petition No. 18269/2025
Krishan Mohan Son Of Late Shri Harbans Lal, Aged About 42
Years, Resident Of 72, Rfc Colony, Vaishali Nagar, Jaipur
(Rajasthan).
----Petitioner
Versus
1. The Jaipur Development Authority, Through Its Secretary,
Jawahar Lal Nehru Marg, Jaipur (Raj.).

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2. The Commissioner, Jaipur Development Authority, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur (Raj.).
3. The Director (Law), Jaipur Development Authority, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur (Raj.).
----Respondents
S.B. Civil Writ Petition No. 18270/2025
Sanjeev Kumar Saini Son Of Ramkrishna Saini, Aged About 45
Years, Resident Of D-131, Murlipura Scheme, Jaipur-302039
(Rajasthan).
----Petitioner
Versus
1. The Jaipur Development Authority, Through Its Secretary,
Jawahar Lal Nehru Marg, Jaipur (Raj.).
2. The Commissioner, Jaipur Development Authority, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur (Raj.).
3. The Director (Law), Jaipur Development Authority, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur (Raj.).
----Respondents
S.B. Civil Writ Petition No. 18271/2025
Mahendra Yadav Son Of Shri Bhagwan Sahay Yadav, Aged About
36 Years, Resident Of Plot No.300-301, Vardhman Nagar-B,
Heerapura, Ajmer Road, Jaipur (Rajasthan).
----Petitioner
Versus
1. The Jaipur Development Authority, Through Its Secretary,
Jawahar Lal Nehru Marg, Jaipur (Raj.).
2. The Commissioner, Jaipur Development Authority, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur (Raj.).
3. The Director (Law), Jaipur Development Authority, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur (Raj.).
----Respondents
S.B. Civil Writ Petition No. 18272/2025
Akhilesh Arya Son Of Shri Rajendra Prasad, Aged About 50
Years, Resident Of F-178, Gandhi Nagar, Jaipur (Rajasthan).
----Petitioner
Versus

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1. The Jaipur Development Authority, Through Its Secretary,
Jawahar Lal Nehru Marg, Jaipur (Raj.).
2. The Commissioner, Jaipur Development Authority, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur (Raj.).
3. The Director (Law), Jaipur Development Authority, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur (Raj.).
----Respondents
S.B. Civil Writ Petition No. 18273/2025
Suraksha Jasuja Daughter Of Shri Roshan Lal Jasuja, Aged About
39 Years, Resident Of A-321, Vaishali Nagar, Jaipur (Rajasthan).
----Petitioner
Versus
1. The Jaipur Development Authority, Through Its Secretary,
Jawahar Lal Nehru Marg, Jaipur (Raj.).
2. The Commissioner, Jaipur Development Authority, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur (Raj.).
3. The Director (Law), Jaipur Development Authority, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur (Raj.).
----Respondents
S.B. Civil Writ Petition No. 18274/2025
Priyanka Sharma Daughter Of O.p.sharma, Aged About 45 Years,
Resident Of 29A, Dayanand Colony, Dev Nagar, Tonk Road,
Jaipur (Rajasthan).
----Petitioner
Versus
1. The Jaipur Development Authority, Through Its Secretary,
Jawahar Lal Nehru Marg, Jaipur (Raj.).
2. The Commissioner, Jaipur Development Authority, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur (Raj.).
3. The Director (Law), Jaipur Development Authority, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur (Raj.).
----Respondents
S.B. Civil Writ Petition No. 18275/2025
Firoz Akhtar Daughter Of Late Alimuddin, Aged About 45 Years,
Resident Of P.No.173, Bajrang Vihar, Near By Tejaji Ka Mandir,
Naradpura, Amer-302028 (Rajasthan).

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----Petitioner
Versus
1. The Jaipur Development Authority, Through Its Secretary,
Jawahar Lal Nehru Marg, Jaipur (Raj.).
2. The Commissioner, Jaipur Development Authority, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur (Raj.).
3. The Director (Law), Jaipur Development Authority, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur (Raj.).
----Respondents
S.B. Civil Writ Petition No. 18321/2025
Rampal Chawla Son Of Shri Geega Ram, Aged About 54 Years,
Resident Of Chawla Bhawan, Mataji Ka Rasta, Jobner, District
Jaipur (Rajasthan) .
----Petitioner
Versus
1. The Jaipur Development Authority, Through Its Secretary,
Jawahar Lal Nehru Marg, Jaipur (Raj.).
2. The Commissioner, Jaipur Development Authority, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur (Raj.).
3. The Director (Law), Jaipur Development Authority, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur (Raj.).
----Respondents
S.B. Civil Writ Petition No. 18680/2025
Sunita Sharma Wife Of Shri Somesh Chand Sharma, Aged About
51 Years, Resident Of 64, Prem Nagar, Gurjar Ki Thadi, Jaipur.
----Petitioner
Versus

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For Petitioner(s) : Mr. Kamlakar Sharma, Sr. Adv.
assisted by
Mr. Yogesh Kalla and
Mr. Ranvijay Singh in CWP
Nos.18266/2021, 18267/2025,
18268/2025, 18269/2025,
18270/2025, 18271/2025,
18272/2025, 18273/2025,
18274/2025, 18275/2025,
18321/2025 and 18680/2025
Mr. Dinesh Yadav and
Mr. Ankit Yadav in CWP
No.18266/2025
Mr. R.N. Mathur, Sr. Adv. assisted by
Mr. Sahil Sharma and
Mr. Ashish Sharma in CWP
No.6626/2021, 6629/2021,
9107/2021 and 9112/2021
Mr. Ravi Shanker Sharma and
Mr. Pawan Sharma in CWP
No.9751/2021
Mr. Azad Ahmed in CWP
No.18321/2025
For Respondent(s) : Mr. Abhishek Sharma and
Ms. Pooja Sharma in CWP
Nos.18266/2025, 18321/2025 and
18680/2025
Mr. Rishabh Khandelwal in CWP
Nos.6626/2021, 6629/2021,
9107/2021 and 9112/2021
Mr. Ajay Shukla along with
Mr. Raghav Sharma in CWP
No.9112/2021 and 9751/2021

HON'BLE MR. JUSTICE GANESH RAM MEENA

Order

Reportable:

Arguments concluded on ::: March 05, 2026
Judgment reserved on ::: March 05, 2026
Judgment pronounced on ::: March 25, 2026

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1. Since a common question is involved in all these

writ petitions, hence, they are being decided by this common

order.

2. The dispute which has been brought before this

Court by filing all these writ petitions is with regard to

removal of Assistant Advocates appointed/ engaged by the

respondent-Jaipur Development Authority (for short 'the JDA')

so as to coordinate in between the office of the JDA and the

Panel Counsels of the JDA, to submit the reply on behalf of

the JDA well in time. The engagement of the Assistant

Advocates has been made because of the scarcity of Law

Officers in the JDA.

3. In-stead of recording the facts of each and every

case, for consideration of the dispute, the Court deems

proper to record the facts of S.B. Civil Writ Petition

No.18266/2025.

4. The JDA issued an office order dated 11.09.2009

(Annex.15 in the writ petition) so as to engage the Assistant

Advocates in the JDA to coordinate amongst the Officers-in-

charge and the Panel Counsels of the JDA. The order dated

11.09.2009 contains the work to be performed by the

Assistant Advocates and the eligibility for engagement. The

said order also contains that in case the work performance of

the Assistant Advocates is not found to be satisfactory, they

can be removed without any notice.

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5. Another order dated 22.05.2014 (Annex.2 in the

writ petition) was also issued by the JDA superseding the

earlier orders wherein also they have incorporated condition

No.7 that if the work performance of the Assistant Advocates

is not found to be satisfactory, they can be removed on the

report of the Zone Commissioner.

6. Another order dated 18.05.2022 (Annex.5 in the

writ petition) was also issued by the JDA wherein also the

similar provisions were incorporated.

7. The petitioner- Pratap Singh was engaged as an

Assistant Advocate vide order dated 21.12.2009 on

consideration of his application submitted in furtherance of

the order dated 11.09.2009. Though in the order of

engagement/ appointment dated 11.09.2009, no specific

period for which he has been engaged, is mentioned.

However, the petitioner- Pratap Singh continued for a long

and his engagement was cancelled vide order dated

14.11.2025 and by the same order other petitioners who

were engaged as Assistant Advocates by the JDA, their

engagement was also cancelled. The petitioner by filing the

present writ petition has assailed the order dated 14.11.2025

to the extent of cancellation of his engagement as an

Assistant Advocate and similarly in other petitions the

petitioners therein have challenged the cancellation of their

engagements.

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8. Shri Kamlakar Sharma Senior Advocate assisted by

Mr. Yogesh Kalla and Mr. Ranvijay Singh, learned counsels

appearing for the petitioners submitted that the order of

cancelling the engagement / appointment of the petitioners

as Assistant Advocates is wholly illegal, arbitrary and violative

of principles of natural justice and is contrary to the terms

and conditions as provided in the orders issued by the

respondent- JDA time to time. He submitted that the orders

issued by the JDA provide for cancelling the engagement or

removal of Assistant Advocates in case their work

performance is not found to be satisfactory in the report of

Zone Commissioner. He also submitted that as per document

Annex.13 dated 11.11.2025, the work performance of the

petitioner and certain other Assistant Advocates, whose

names appear in the said document, is found to be qualitative

and satisfactory. Learned Senior Advocate also submitted that

the Assistant Advocates who have been engaged by the JDA,

their engagements have been cancelled not because there is

any adversity as regards their work performance but under

the directions of the Hon'ble Minister who is also the

Chairman of the JDA and that too for no good reasons.

Learned Senior Advocate also submitted that the respondent-

JDA in their own reply in para No.6 has stated that the work

performed by the Assistant Advocates is temporary in nature

and their services can be terminated in case of misconduct,

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indiscipline or actions detrimental to the interests of the JDA.

However, no such cause or reason appears from the record so

as to remove the petitioners. Senior Advocate to support the

submissions has placed reliance upon following judgments:-

1. Kumari Shrilekha Vidyaarthi etc. etc. v. State of U.P. &
Ors., reported in AIR (1991) SCC 212 delivered by the
Hon'ble Apex Court; and

2. State of Uttar Pradesh & Ors. v. Ashok Kumar Nigam,
reported in (2013) 3 SCC 372.

9. Shri R.N. Mathur, Senior Advocate assisted by Mr.

Sahil Sharma and Mr. Ashish Sharma, learned counsels

appearing from one of the petitioner side submitted that the

work of the petitioner who has been engaged as an Assistant

Advocate has been found to be satisfactory as is evident from

the experience certificate dated 13.01.2012 (annex.8 in CWP

No.6626/2021). He has also referred the terms and

conditions as regards the engagement of the Assistant

Advocates to the orders issued by the JDA from time to time.

He also submitted that the work which is assigned to the

persons engaged as Assistant Advocates is of permanent

nature as the litigation qua the JDA are increasing day-by-day

and there is scarcity of the Law Officers in the JDA. Learned

Senior Advocate also submitted that the order of removal of

petitioners has been issued at the instance of Hon'ble Minister

without there being any good reason and it seems to be a

decision so as to appease the lawyers who are affiliated with

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the political party to which the Hon'ble Minister belongs.

Learned Senior Advocate also submitted that the order of

removal of the petitioners is wholly arbitrary and deserves to

be quashed and set aside.

To support the submissions, learned Senior

Advocate has placed reliance upon following judgments:-

1. Kumari Shrilekha Vidyaarthi etc. etc. v. State of U.P. &
Ors., reported in AIR (1991) SCC 212 delivered by the
Hon'ble Apex Court; and

2. State of U.P. & Anr. v. Johri Mal, reported in AIR 2004 sC
3800 delivered by Hon'ble the Apex Court.

10. The other counsels appearing for the petitioners

have adopted the arguments advanced by the learned Senior

Advocates.

SPONSORED

11. Mr. Abhishek Sharma, counsel appearing for the

JDA submitted that the petitioners have not been engaged as

employees by the JDA and they have been engaged as

Assistant Advocates on contractual basis for performing the

work of temporary nature and therefore, the writ petitions

filed by the petitioners are not maintainable. He has made a

reference of the additional affidavit submitted by the JDA

stating that there are 58 vacancies of the Assistant

Advocates. He further submitted that there is no vested

rights of the petitioners to continue as Assistant Advocates

and they cannot claim their continuation. He made a

reference of Clause 3 of the order dated 18.05.2022

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(Annex.5). The said clause provides that the person who has

been engaged as an Assistant Advocate cannot claim to

continue in service and has also referred Clause 12 of the

said order submitting that a person engaged as an Assistant

Advocate can be removed.

12. Shri Rishabh Khandelwal, counsel appearing for the

JDA in some of the petitions submitted that the respondent-

JDA cannot be compelled to engage the particular persons as

Assistant Advocates and also cannot be forced to take the

services of the petitioners.

To support the submissions, learned counsel

appearing for the JDA has placed reliance upon following

judgments:-

1. Sushil Kumar Gupta v. State of U.P. & Ors., reported in
(2002) 10 AHC CK 0 179 delivered by the Allahabad High
Court;

2. Om Prakash Joshi, Advocate & Ors. v. State of Rajasthan &
Or., reported in 2001 Supreme (Raj.) 699, delivered by
Hon’ble Division Bench of the Rajasthan High Court; and

3. State of Maharashtra & Ors. v. Anita & Anr. etc., Civil
Appeal Nos. 6132-33 ofd 2016 (Arising out of SLP(C)
No.34788-34789 of 2012) decided on July 12, 2016,
delivered by the Hon’ble Apex Court.

13. Mr. Ajay Shukla, counsel appearing for the JDA in

certain petitions submitted that the claim of the petitioners is

against the doctrine of pleasure.

14. Considered the submissions made by learned

Senior Advocates appearing for the petitioners and learned

counsels appearing for the JDA and gone through the entire

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material made available to the court including the judgments

as referred.

15. The basic question which emerges from the

pleadings and the submissions made by learned Senior

Advocates appearing for the petitioners is that the act of the

respondents in removing the petitioners from their

engagements as Assistant Advocates by the impugned order

is an arbitrary act?

16. It is settled principle of law that the Welfare State

and its instrumentalities / undertakings are required to act in

a bonafide manner and shall not adhere to any arbitrary

exercise of powers and are to avoid arbitrariness in their

action and decisions.

17. The JDA from time to time issued various orders

like the order dated 11.09.2009 (Annex.15), the order dated

22.05.2014 (Annex.2) and the order dated 18.05.2022

(Annex.5) with regard to the terms and conditions of

engagements of Assistant Advocates. The said orders speak

that the Assistant Advocates are being engaged by the JDA

for coordinating in between the Officers of the JDA and the

Panel Counsels of the JDA so as to streamline the work of the

replies with comments on legal aspects of the matters. As per

the terms and conditions incorporated in all these orders, the

engagement of the Assistant Advocates, no fixed term of

their engagements has been provided and the Assistant

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Advocates, being engaged by the JDA can continue till

removal and are being continued for a long time. As per the

terms and conditions of the said orders, an Assistant

Advocate can only be removed or his engagement can be

cancelled if his work performance is not found to be

satisfactory. The condition regarding the removal /

cancellation of the engagement as incorporated in the order

dated 11.09.2009 is quoted as under:-

“उपररक ककरर हहतत इचछक अधधवककओओ सह उपररककनतसकर पभकररधधककरर

/पकरषकधधककरररर दकरक अपनह सतर सह हर आवहदन पकप कर सधचव जधवपक सह
अनतमरदन करक पकर सहकरक अधधवकक धनरतक धकरक जकवहगक तथक ककरर

ओ रषपद नहर पकरह जकनह पर धबनक धकसर नरधटस भर उसह हटकरक जक सकहगक।”

सत
There is Clause 7 in the order dated 22.05.2014,

which is quoted as under:-

“सहकरक अधधवककओओ कह ककरर सत
ओ रषजनक नहर हरनह कक जरन उपकरतक कक
ररपरटर कह आधकर पर इनहह हटकरक जक सकहगक।”

In the order dated 18.05.2022, the relevant clause

is 12, which is quoted as under:-

“12. उककनतसकर शतर कक अनतपकलनक नहह धकरह जकनह पर एवओ सब
ओ धओ धत जरन
उपकरतक/पकरष पभकरर कक ररपरटर कह आधकर पर सब
ओ धओ धत सहकरक अधधवकक
कह धवरद धनरमकनतसकर ककररवकहर कक जकवहगर धजसमह जधवपक कह ककरर सह

पपथक धकरक जकनक भर सममधलत हरगक।”

There is no other clause in the orders regarding the

process and reasons/ cause for their removal.

18. The terms and conditions as regards the dis-

engagement/ cancellation of the engagement speak that the

Assistant Advocates engaged by the JDA can be removed or

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disengaged at any point of time only, if their work

performance is not found to be satisfactory in the report of

the Zone Deputy Commissioner / Cell In-charge. The

respondents in their reply to the writ petition, in para No.6

have also categorically stated that the services of the

Assistant Advocates can be terminated in case of misconduct,

indiscipline or actions detrimental to the interests of the JDA.

Said para 6 of the reply is quoted as under:-

“6. The work performed by the Assistant Advocates
is temporary, and their services may be terminated
in case of misconduct, indiscipline, or actions
detrimental to the interests of the JDA. To ensure
effective representation and defence in the pending
legal cases related to the Jaipur Development
Authority in various courts, the appointments of all
previously appointed permanent advocates/ panel
advocates assistant advocates have been cancelled,
and new advocates/ assistant advocates have been
appointed in their place.”

19. The respondent- JDA neither in the reply to the writ

petition or during the course of arguments has pointed any

report of the Officers of the JDA as regards the unsatisfactory

work performance of the petitioners.

20. The Court in the facts and circumstances as borne

out from the pleadings and submissions has to see what

constitutes the arbitrariness. The Court is of the opinion that

the arbitrariness of an Authority is to be assessed from the

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facts of the case. There cannot be any direct evidence of

arbitrariness but same has to be gathered form the material

placed before the Court. The Court has to see whether the act

of the respondents under challenge in the petitions is

reasonable in view of the terms and conditions provided by

the respondents or the act neglects the ground of removal or

disengagements of the petitioners. If the act of the

respondents as regards removal of the petitioners neglects

the consideration of basic ground for their removal as

provided under the orders then certainly such act of the

respondents has to be held arbitrary. In the orders issued by

the respondent- Authority it has been provided that the

Assistant Advocates who are being engaged by the JDA after

considering their all credentials and eligibility criteria, they

can be removed only in case their work performance is not

found to be satisfactory. It has come out that the work

performance of the petitioners has been certified to be

qualitative and satisfactory by the respondent- Authority and

still under the directions of the Hon’ble Minister, their

engagements have been cancelled for no good reason. The

respondents have failed to convince this Court that as to why

the lawyers who have gained much experience as Assistant

Advocates are being thrown out for no good reason. The

respondents may have provided a tenure for engagement of

Assistant Advocates while engaging and on completion of

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such tenure their engagements would have automatically

come to an end but no tenure of their engagement has been

provided. Therefore, the respondents are under an obligation

to adhere to the terms and conditions as incorporated in the

orders of engagements.

21. From the aforesaid discussion and also on scrutiny

of the material placed before this Court, the Court can safely

held that the act of the respondents in removal / cancellation

of the engagements of the petitioners is arbitrary act of the

respondents.

22. The Hon’ble Apex Court in the case of Kumari

Shrilekha Vidyaarthi (supra) has observed in paras 2,4,

7,8,9,15,17,18,19,22,28,29,34, 39, 40, 41, 47 and 49 as

under:-

“2. By one stroke, seemingly resorting to the Spoils
System alien to our constitutional scheme, the
Government of State of Uttar Pradesh has
terminated by a general order the appointments of
all Government Counsel (Civil, Criminal, Revenue) in
all the districts of the State of U.P. w.e.f. February
28, 1990 and directed preparation of fresh panels to
make appointments in place of the existing
incumbents. This has been done by Circular G.O. No.
D-284-Seven-Law-Ministry dated February 6, 1990,
terminating all the existing appointments w.e.f.
February 28, 1990, irrespective of the fact whether
the term of the incumbent had expired or was
subsisting. The validity of this State action is

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challenged in these matters after the challenge has
been rejected by the Allahabad High Court. They
have all been heard together since the common
question in all of them is the validity of the Circular
G.O. No. D-284-Seven-Law-Ministry dated February
6, 1990 issued by the Government of State of Uttar
Pradesh.

…

4. Broadly, two questions arise for decision by us in
this bunch of matters. These are: Is the impugned
circular amenable to judicial review?; and if so, is it
liable to be quashed as violative of Article 14 of the
Constitution of India, being arbitrary?
…

7. Several arguments were advanced by the learned
counsel on both sides relating to the nature of these
appointments about which there is a serious contest
between the parties. In the present case, it is not
necessary for us to consider at length the exact
nature of these appointments which is material only
for indicating the extent of security of tenure of the
appointee to these offices since in our opinion the
main attack to the impugned circular on the ground
of arbitrariness can be upheld even assuming the
security of tenure of the appointees to be minimal as
claimed for and on behalf of the State of U.P. We
shall, therefore, only refer to the rival contentions
regarding the nature of appointments and then
proceed on the basis of the minimum status
attaching to these appointments to examine whether
the ground of arbitrariness is available and vitiates
the circular.

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8. According to the learned Additional Advocate
General of the State of U.P., the relationship of the
appointees to these offices of Government Counsel in
the districts is purely contractual depending on the
terms of the contract and is in the nature of an
engagement of a counsel by a private party who can
be changed at any time at the will of the litigant, with
there being no right in the counsel to insist on
continuance of the engagement. The learned
Additional Advocate General contended that for this
reason, the relationship being purely contractual,
which cannot be continued against the will of either
party, there is no scope for the argument that the
State does not have the right to change the
Government Counsel at its will. It is common ground
that the appointment, termination and renewal of
tenure of all Government Counsel in the districts is
governed by certain provisions contained in the Legal
Remembrancer’s Manual, in addition to Section 24 of
the Code of Criminal Procedure, 1973, applicable in
the case of Public Prosecutors. The learned Additional
Advocate General did not dispute that if Article 14 of
the Constitution of India is attracted to this case like
all State actions, the impugned circular would be
liable to be quashed if it suffers from the vice of
arbitrariness. However, his argument is that there is
no such vice. In the ultimate analysis, it is the
challenge of arbitrariness which the circular must
withstand in order to survive. This really is the main
point involved for decision by us in the present case.

9. The nature of appointment of the Government
Counsel in the districts on the civil, criminal and

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revenue sides was hotly debated during the hearing.
It was urged on behalf of the petitioners/appellants
that the relationship of the Government Counsel with
the government is not merely one of client and
counsel as in the case of a private client, but one of
status in the nature of public employment or
appointment to a ‘public office’ so that termination of
the appointment of a Government Counsel cannot be
equated with the termination by a private litigant of
his counsel’s engagement, which is purely
contractual, without any public element attaching to
it. It was urged that appointment of Public
Prosecutors has a statutory status also in view of
such appointments being required to be made in
accordance with Section 24 of the Code of Criminal
Procedure, 1973. Reliance was also placed on certain
provisions of the Legal Remembrancer’s Manual,
which admittedly govern and regulate the
appointment of all Government Counsel in the
districts as well as the termination of their
appointment and renewal of their tenures. It was
contended that the relationship between the
government and the Government Counsel is,
therefore, not purely contractual in nature as in the
case of a private litigant and his counsel. An attempt
was also made to urge that the appointment of
Government Counsel is in the nature of a public
employment with the attendant security of tenure of
office and the necessary concomitants attaching to it.
On the other hand, the learned Additional Advocate
General appearing for the State of U.P. contended
that the relationship between the government and
the Government Counsel is purely contractual like

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that of a private litigant and his counsel which
enables the government to change its counsel at any
time as may be done by a private litigant in the event
of loss of confidence between them. He contended
that there is no element of public employment in
such appointments and the provisions in the Legal
Remembrancer’s Manual and Section 24 of and Code
of Criminal Procedure are merely to provide for
making a suitable choice. We shall briefly refer to
some provisions which admittedly regulate and
govern such appointments, termination and renewal
of tenure of the appointees.

…

15. A brief reference to some decisions of this Court,
in which the character of engagement of a
Government Counsel was considered, may be made.
In Mahadeo v. Shantibhai [(1969) 2 SCR 422 : 40
ELR 81] it was held that a lawyer engaged by the
Railway Administration during the continuance of the
engagement was holding an ‘office of profit’. The
engagement of the Railway counsel was similar to
that of the Government Counsel in the present case.
It was pointed out that by ‘office’ is meant the right
and duty to exercise an employment or a position of
authority and trust to which certain duties are
attached; and such an engagement satisfied that
test. Even though the decision was rendered in the
context of disqualification under the Election Law by
holding an ‘office of profit’, yet it is useful for
appreciating the nature of such an engagement or
appointment of a counsel by the government. In
Mundrika Prasad Singh v. State of Bihar [(1979) 4
SCC 701 : (1980) 1 SCR 759] the nature of

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appointment of Government Pleaders came up for
consideration and it was said that the office of a
Government Pleader, as defined in Section 2(7) of
the Code of Civil Procedure, 1908, is a public office.
Krishna Iyer, J., in that decision, also pointed out
that the (SCC p. 707, para 16) “governments under
our Constitution shall not play with Law Offices on
political or other impertinent considerations as it may
affect the legality of the action and subvert the rule
of law itself”. In that decision, an earlier Madras
decision was quoted with approval, wherein, it was
clearly held that the duties of the Government
Pleader are of a public nature and that the office of a
Government Pleader is a public office. The relevant
extract is as under : (SCC pp. 706-07, para 15)
“… A Government Pleader is more than an
advocate for a litigant. He holds a public office. We
recall with approval the observations a Division
Bench of the Madras High Court made in
Ramachandran v. Alagiriswami [AIR 1961 Mad
450 : ILR 1961 Mad 553] and regard the view
there, expressed about a Government Pleader’s
office, as broadly correct even in the Bihar set up.
… the duties of the Government Pleader, Madras
are duties of a public nature. Besides, as already
explained the public are genuinely concerned with
the manner in which Government Pleader
discharges his duties because, if he handles his
cases badly, they have ultimately to foot the bill. …
***
I consider that the most useful test to be applied
to determine the question is that laid down by Erle,
J. in (1851) 17 QB 149. The three criteria are,
source of the office, the tenure and the duties. I
have applied that test and I am of opinion that the
conclusion that the office is a public office is
irresistible.”

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Similarly, in Mukul Dalal v. Union of India [(1988) 3
SCC 144 : 1988 SCC (Cri) 566] , it was held that
(SCC pp. 149 & 152, para 6 & 9) “the office of the
Public Prosecutor is a public one” and “the primacy
given to the Public Prosecutor under the Scheme of
the Code (CrPC) has a social purpose”.

…

17. We are, therefore, unable to accept the
argument of the learned Additional Advocate General
that the appointment of District Government Counsel
by the State Government is only a professional
engagement like that between a private client and his
lawyer, or that it is purely contractual with no public
element attaching to it, which may be terminated at
any time at the sweet will of the government
excluding judicial review. We have already indicated
the presence of public element attached to the ‘office’
or ‘post’ of District Government Counsel of every
category covered by the impugned circular. This is
sufficient to attract Article 14 of the Constitution and
bring the question of validity of the impugned circular
within the scope of judicial review.

18. The scope of judicial review permissible in the
present case, does not require any elaborate
consideration since even the minimum permitted
scope of judicial review on the ground of arbitrariness
or unreasonableness or irrationality, once Article 14
is attracted, is sufficient to invalidate the impugned
circular as indicated later. We need not, therefore,
deal at length with the scope of judicial review
permissible in such cases since several nuances of

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that ticklish question do not arise for consideration in
the present case.

19. Even otherwise and sans the public element so
obvious in these appointments, the appointment and
its concomitants viewed as purely contractual
matters after the appointment is made, also attract
Article 14 and exclude arbitrariness permitting
judicial review of the impugned State action. This
aspect is dealt with hereafter.

…

22. There is an obvious difference in the contracts
between private parties and contracts to which the
State is a party. Private parties are concerned only
with their personal interest whereas the State while
exercising its powers and discharging its functions,
acts indubitably, as is expected of it, for public good
and in public interest. The impact of every State
action is also on public interest. This factor alone is
sufficient to import at least the minimal requirements
of public law obligations and impress with this
character the contracts made by the State or its
instrumentality. It is a different matter that the scope
of judicial review in respect of disputes falling within
the domain of contractual obligations may be more
limited and in doubtful cases the parties may be
relegated to adjudication of their rights by resort to
remedies provided for adjudication of purely
contractual disputes. However, to the extent,
challenge is made on the ground of violation of
Article 14 by alleging that the impugned act is
arbitrary, unfair or unreasonable, the fact that the
dispute also falls within the domain of contractual

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obligations would not relieve the State of its
obligation to comply with the basic requirements of
Article 14. To this extent, the obligation is of a public
character invariably in every case irrespective of
there being any other right or obligation in addition
thereto. An additional contractual obligation cannot
divest the claimant of the guarantee under Article 14
of non-arbitrariness at the hands of the State in any
of its actions.

…

28. Even assuming that it is necessary to import the
concept of presence of some public element in a
State action to attract Article 14 and permit judicial
review, we have no hesitation in saying that the
ultimate impact of all actions of the State or a public
body being undoubtedly on public interest, the
requisite public element for this purpose is present
also in contractual matters. We, therefore, find it
difficult and unrealistic to exclude the State actions in
contractual matters, after the contract has been
made, from the purview of judicial review to test its
validity on the anvil of Article 14.

29. It can no longer be doubted at this point of time
that Article 14 of the Constitution of India applies
also to matters of governmental policy and if the
policy or any action of the government, even in
contractual matters, fails to satisfy the test of
reasonableness, it would be unconstitutional. (See
Ramana Dayaram Shetty v. International Airport
Authority of India [(1979) 3 SCC 489 : (1979) 3 SCR
1014] and Kasturi Lal Lakshmi Reddy v. State of
Jammu and Kashmir [(1980) 4 SCC 1 : (1980) 3 SCR

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1338] ). In Col. A.S. Sangwan v. Union of India
[1980 Supp SCC 559 : 1981 SCC (L&S) 378] while
the discretion to change the policy in exercise of the
executive power, when not trammelled by the statute
or rule, was held to be wide, it was emphasised as
imperative and implicit in Article 14 of the
Constitution that a change in policy must be made
fairly and should not give the impression that it was
so done arbitrarily or by any ulterior criteria. The
wide sweep of Article 14 and the requirement of
every State action qualifying for its validity on this
touchstone, irrespective of the field of activity of the
State, has long been settled. Later decisions of this
Court have reinforced the foundation of this tenet
and it would be sufficient to refer only to two recent
decisions of this Court for this purpose.
…

34. In our opinion, the wide sweep of Article 14
undoubtedly takes within its fold the impugned
circular issued by the State of U.P. in exercise of its
executive power, irrespective of the precise nature of
appointment of the Government Counsel in the
districts and the other rights, contractual or
statutory, which the appointees may have. It is for
this reason that we base our decision on the ground
that independent of any statutory right, available to
the appointees, and assuming for the purpose of this
case that the rights flow only from the contract of
appointment, the impugned circular, issued in
exercise of the executive power of the State, must
satisfy Article 14 of the Constitution and if it is shown
to be arbitrary, it must be struck down. However, we
have referred to certain provisions relating to initial

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appointment, termination or renewal of tenure to
indicate that the action is controlled at least by
settled guidelines, followed by the State of U.P., for a
long time. This too is relevant for deciding the
question of arbitrariness alleged in the present case.
…

39. No doubt, it is for the person alleging
arbitrariness who has to prove it. This can be done by
showing in the first instance that the impugned State
action is uninformed by reason inasmuch as there is
no discernible principle on which it is based or it is
contrary to the prescribed mode of exercise of the
power or is unreasonable. If this is shown, then the
burden is shifted to the State to repel the attack by
disclosing the material and reasons which led to the
action being taken in order to show that it was an
informed decision which was reasonable. If after a
prima facie case of arbitrariness is made out, the
State is unable to show that the decision is an
informed action which is reasonable, the State action
must perish as arbitrary.

40. In the present case, the initial burden on the
petition-ers/appellants has been discharged by
showing that there is no discernible principle for the
impugned action at the district level throughout the
State of U.P. since there is nothing in the circular to
indicate that such a sweeping action for all districts
throughout the State was necessary which made it
reasonable to change all Government Counsel in the
districts throughout the State, even those whose
tenure in office had not expired. Such a drastic action
could be justified only on the basis of some

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extraordinary ground equally applicable to all
Government Counsel in the districts throughout the
State which is reasonable. No such reason appears in
the circular.

41. The impugned circular itself does not indicate the
compelling reason, if any, for the drastic step of
replacing all the Government Counsel in every branch
at the district level throughout the State of U.P.,
irrespective of the fact whether the tenure of the
incumbent had expired or not. The learned Additional
Advocate General stated that the circular was issued
because the existing panels were made in 1985,
1986 and 1987 and were considered to be not too
proximate in point of time in the year 1990 for being
continued. The reason, if any, for considering such en
bloc change necessary has not been disclosed either
in the circular or at the hearing in addition to what is
said in para 29 of the counter-affidavit of A.K. Singh,
which is referred to later. On behalf of the petition-
ers/appellants, it was alleged that the en masse
change at the district level throughout the State of
U.P. was made only for political reasons on account
of the recent change in the State Government. We
deem it unnecessary to go into this question for want
of any specific material either way. Moreover, the
arbitrariness, if any, of such an act, would be equally
applicable irrespective of the change in the
government, which, if at all, would only strengthen
the argument in case arbitrariness is proved
otherwise. The only reason given in the counter-
affidavit of A.K. Singh, Joint Secretary and Joint Legal

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Remembrancer, Government of U.P., is in para 29
thereof which reads as under:

“That the contents of para 38 of the writ petition
are not admitted. It is denied that the government
took the present decision with a political motive
and in an arbitrary manner. It is also submitted
that the decision to terminate the professional
engagement has been taken in order to streamline
the conduct of the government cases and effective
prosecution thereof.”

…

47. In view of the above conclusion, all the existing
appointees to the posts of Government Counsel in
the districts throughout the State of U.P., by
whatever name called, governed by the impugned
circular dated February 6, 1990, who were in position
at the time of issuance of the circular, must continue
in office and be dealt with in accordance with the
procedure laid down in the L.R. Manual. Those
Government Counsel, whose term had then expired
or was to expire thereafter, would be considered for
renewal of their tenure in the manner prescribed and
steps for preparation of a fresh panel to replace them
would be taken only if they are found unsuitable for
renewal of their term as a result of an informed
decision in the manner prescribed. The power of
termination of any appointment during the
subsistence of the term available to the State
Government shall also be available for exercise only
in the manner indicated, wherever considered
necessary. In short, the status quo ante as on
February 28, 1990, on which date the impugned
circular dated February 6, 1990 was made effective,
will be restored and be maintained till change in any
appointment is found necessary and is made in the

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manner prescribed. The fresh appointments, if any,
made by the State Government in implementation of
the impugned circular dated February 6, 1990, being
subject to the validity of the circular and the result of
these matters, would stand superseded in this
manner. The State Government will implement this
direction within two weeks of the date of this order.
…

49. In view of the conclusion reached by us and the
above direction restoring status quo ante as on
February 28, 1990, we have not gone into individual
matters brought before us. Some argument was
advanced from both sides in W.P. No. 706 of 1990
(Shrilekha Vidyarthi v. State of U.P. & Ors.) wherein
the fact of renewal of petitioner’s tenure is disputed.
It is unnecessary for us to go into that question also
since the order we are making, governs the case of
all Government Counsel in the districts throughout
the State of U.P. including that of the petitioner in
this writ petition. The subsequent rights of this
petitioner also would be governed in the manner
indicated above. If and when such a situation arises,
it would be open to the parties to have the dispute, if
any, adjudicated wherein the question of renewal of
tenure, claimed by the petitioner, can also be gone
into.”

23. In the case of Ashok Kumar Nigam (supra), the

Hon’ble Apex Court in paras 4,5,6,18 and 20 has observed as

under:-

“4. The order dated 3-4-2008 can usefully be
reproduced at this stage:

“From

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Acharya Suresh Babu,
Deputy Secretary
Government of Uttar Pradesh.

To,
The District Magistrate,
Lucknow.

Nyay-Anubhag-3-Appointment Lkw, dated 3-4-2008
Sub.: Renewal of tenure of engagement of District
Government Counsel at the district level.

                Sir,
               With     reference    to   your    Letter No.

855/JA(2)/Advocate-Renewal/07 dated 5-3-2007, I
have been directed to say that after due
consideration, the Hon’ble Governor had kindly
ordered not to renew the tenure of engagement of
Shri Ashok Kumar Nigam, as District Government
Counsel (Criminal), Lucknow.

Accordingly, in the aforesaid background, the
engagement order of Shri Ashok Kumar Nigam, as
District Government Counsel is hereby terminated.
Please take necessary action at your end and
forward your proposal from the panel of advocates
for being engaged as District Government Counsel
against the consequential vacancy.”

5. Aggrieved with the above order, the respondent
filed writ petition before the High Court of Allahabad,
Lucknow Bench. In the writ petition, the stand taken
by the respondent was that in terms of the rule, the
petitioner has a right to continue and in any case for
consideration of renewal of his term, the impugned
order does not state any reasons and, in fact, does
not take into consideration the recommendations
made by the District and Sessions Judge and the
District Magistrate, who had recommended renewal
of the term of the respondent. The High Court after
hearing the counsel appearing for the parties, vide its
judgment dated 14-10-2009 [Ashok Kumar Nigam v.

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State of U.P., WP (MB) No. 3208 of 2008, order
dated 14-10-2009 (All)] , allowed the writ petition,
setting aside the order dated 3-4-2008 and even
granting further relief to the appellant.

6. The operative part of the High Court judgment
reads as under:

“For the reasons stated above, the order impugned
dated 3-4-2008 is hereby set aside.

We are informed that no person has yet been
appointed or engaged in place of the petitioner, in
view of the interim order passed by this Court, we,
therefore, further provide that the petitioner shall be
allowed to continue to discharge the functions and
duties of the District Government Counsel till the
consideration of the renewal of his term in
accordance with law.

We may further clarify that the renewal of the
petitioner’s term shall be considered in accordance
with the relevant provisions of LR Manual
[unamended Para 7.08 as the amendments made in
LR Manual are subject-matter of challenge in WP No.
7851 (M/B) of 2008 wherein the implementation of
the amended provisions stand stayed] if he has not
crossed the age of 60 years but if he has already
attained the age of 60 years, but has not yet reached
the age of 62 years then his case will be considered
for extension of his term up to the age of 62 years
and for that consideration, if any further formalities
are to be completed or some certificates are needed,
he shall be given an opportunity to furnish the same,
so that his case may be considered in accordance
with the relevant rules. Writ petition is allowed. Costs
made easy.”

…

18. The order dated 3-4-2008 is even liable to be
quashed on another ground, that it is a non-speaking
order also suffering from the vice of non-application
of mind. As already discussed, the Government has
taken an en bloc decision, without recording any

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reason, not to renew the term of any of the
Government Counsel. That itself shows that there is
no application of mind. In Shrilekha [(1991) 1 SCC
212 : 1991 SCC (L&S) 742] , this Court expressed
the opinion that it would be alien to the constitutional
scheme to accept the argument of exclusion of Article
14 in contractual matters. The arbitrary act of the
State cannot be excluded from the ambit of judicial
review merely on the ground that it is a contractual
matter. The expression “at any time without
assigning any cause”, can be divided into two
portions, one “at any time”, which merely means the
termination may be made even during the
subsistence of the term of appointment and second,
“without assigning any cause” which means without
communicating any cause to the appointee whose
appointment is terminated. However, “without
assigning any cause” is not to be equated with
“without existence of any cause”.

…

20. The order dated 3-4-2008, which we have
reproduced above, clearly shows non-application of
mind and non-recording of reasons, which leads only
to one conclusion, that the said order was an
arbitrary exercise of power by the State. We cannot
find any fault with the reasoning of the High Court in
that behalf. But we do find some merit in the
contention raised on behalf of the appellant State
that the High Court should not have directed
appointments while regulating the age, as has been
done by the High Court in operative part of its
judgment. There is a right of consideration, but none
can claim right to appointment. Para 7.06 states that

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renewal beyond 60 years shall depend upon
continuous good work, sound integrity and physical
fitness of the counsel. These are the considerations
which have been weighed by the competent authority
in the State Government to examine whether
renewal/extension beyond 60 years should be
granted or not. That does not ipso facto means that
there is a right to appointment up to the age of 60
years irrespective of work, conduct and integrity of
the counsel. The rule provides due safeguards as it
calls for the report of the District Judge and the
District Officer granting renewal.”

24. In the case of Johri Mal (supra), the Hon’ble Apex

court in paras 30,35,51,59,60,85 and 89 has observed as

under:-

“30. It is well settled that while exercising the power
of judicial review the court is more concerned with
the decision-making process than the merit of the
decision itself. In doing so, it is often argued by the
defender of an impugned decision that the court is
not competent to exercise its power when there are
serious disputed questions of facts; when the
decision of the Tribunal or the decision of the fact-
finding body or the arbitrator is given finality by the
statute which governs a given situation or which, by
nature of the activity the decision-maker’s opinion on
facts is final. But while examining and scrutinising the
decision-making process it becomes inevitable to also
appreciate the facts of a given case as otherwise the
decision cannot be tested under the grounds of
illegality, irrationality or procedural impropriety. How
far the court of judicial review can reappreciate the

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findings of facts depends on the ground of judicial
review. For example, if a decision is challenged as
irrational, it would be well-nigh impossible to record a
finding whether a decision is rational or irrational
without first evaluating the facts of the case and
coming to a plausible conclusion and then testing the
decision of the authority on the touchstone of the
tests laid down by the court with special reference to
a given case. This position is well settled in the
Indian administrative law. Therefore, to a limited
extent of scrutinising the decision-making process, it
is always open to the court to review the evaluation
of facts by the decision-maker.

…

35. In Wade’s Administrative Law, 8th Edn., at p.
551-552, the author states:

“Rights and remedies: Rights depend upon
remedies. Legal history is rich in examples of rules of
law which have been distilled from the system of
remedies, as the remedies have been extended and
adapted from one class of case to another. There is
no better example than habeas corpus. This remedy,
since the sixteenth century the chief cornerstone of
personal liberty, grew out of a medieval writ which at
first played an inconspicuous part in the law of
procedure: it was used to secure the appearance of a
party, in particular where he was in detention by
some inferior court. It was later invoked to challenge
detention by the King and by the Council; and finally
it became the standard procedure by which the
legality of any imprisonment could be tested. The
right to personal freedom was almost a by-product of
the procedural rules.

This tendency has both good and bad effects. It is
good in that the emphasis falls on the practical
methods of enforcing any right. Efficient remedies
are of the utmost importance, and the remedies
provided by English administrative law are notably

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efficient. But sometimes the remedy comes to be
looked upon as a thing in itself, divorced from the
legal policy to which it ought to give expression. In
the past this has led to gaps and anomalies, and to a
confusion of doctrine to which the courts have
sometimes seemed strangely indifferent.”

…

51. A Public Prosecutor is not only required to show
his professional competence but is also required to
discharge certain administrative functions. The
District Officer was of the opinion that in a district
like Meerut the term of the appointment should not
be extended as he has no effective control over the
other ADGCs for “taking steps”. The approach of the
District Officer cannot be said to be wholly irrational.
As noticed hereinbefore, the District Judge, Meerut
has also agreed thereto. The action on the part of the
State, therefore, cannot be said to be wholly without
jurisdiction requiring interference by the High Court
in exercise of its power of judicial review.
…

59. This Court in Kumari Shrilekha Vidyarthi v. State
of U.P. [(1991) 1 SCC 212 : 1991 SCC (L&S) 742]
opined that the appointment made in the post of
District Government Counsel is not contractual in
nature. It was held that the Government Law Officers
including the Public Prosecutors are holders of public
offices. It was further opined that even in a case of
contract the State cannot act arbitrarily and such
arbitrary action is liable to be set aside as violative of
Article 14 of the Constitution of India.

60. In Kumari Shrilekha Vidyarthi [(1991) 1 SCC 212
: 1991 SCC (L&S) 742], the Court sought to draw a
distinction between the powers of public authorities

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vis-à-vis the private authorities referring to Wade’s
Administrative Law, 6th Edn., p. 401 to the following
effect and stating: (SCC p. 238, para 25)
“For the same reasons there should in principle be
no such thing as unreviewable administrative
discretion, which should be just as much a
contradiction in terms as unfettered discretion. The
question which has to be asked is what is the scope
of judicial review, and in a few special cases the
scope for the review of discretionary decisions may
be minimal. It remains axiomatic that all discretion is
capable of abuse, and that legal limits to every power
are to be found somewhere.”

…

85. Keeping in mind the aforementioned legal
principles the question which arises for consideration
in these appeals is the nature and extent of
consultation a Collector is required to make with the
District Judge.

…

89. For the aforementioned reasons, we are of the
opinion that the impugned judgment cannot be
sustained which is set aside accordingly. The appeals
are allowed but in the facts and circumstances of the
case, there shall be no order as to costs.”

The view of this Court finds support from the

judgments in case of Kumari Shrilekha Vidyaarthi

(surpa), Johri Mal (supra) and Ashok Kumar Nigam

(supra).

25. In the case of Anita & anr. (supra), relied upon

by the counsel appearing for the JDA, the Hon’ble Apex Court

in paras 15, 16 and 17 has observed as under:-

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“15. It is relevant to note that the respondents at the
time of appointment have accepted an agreement in
accordance with Appendix ‘B’ attached to the
Government Resolution dated 15-9-2006. The terms
of the agreement specifically lay down that the
appointment is purely contractual and that the
respondents will not be entitled to claim any rights,
interest and benefits whatsoever of the permanent
service in the Government. We may usefully refer to
the relevant clauses in the format of the agreement
which read as under:

“1. The First Party hereby agrees to appoint
Shri/Smt ________ (Party II) as a ________ on
contract basis for a period of 11 months
commencing from __________ to __________
(mention date) on consolidated remuneration of
Rs ___________ (Rupees ___________ only)
per month, and said remuneration will be payable
at the end of each calendar month according to
British Calendar. It is agreed that IInd party shall
not be entitled for separate T.A. and D.A. during
the contract period….

2. ………………

3. ………………

4. ………………

5. Assignment of 11 months’ contract is
renewable for a further two terms of 11 months
(i.e. total 3 terms), subject to the satisfaction of
the competent authority, and on its
recommendations.

6. Party II will not be entitled to claim any rights,
interest, benefits whatsoever of the permanent
service in the Government.”

16. The above terms of the agreement further
reiterate the stand of the State that the
appointments were purely contractual and that the
respondents shall not be entitled to claim any right or

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interest of permanent service in the Government. The
appointments of the respondents were made initially
for eleven months but were renewed twice and after
serving the maximum contractual period, the services
of the respondents came to an end and the
Government initiated a fresh process of selection.
The conditions of the respondents’ engagement are
governed by the terms of agreement. After having
accepted the contractual appointment, the
respondents are estopped from challenging the terms
of their appointment. Furthermore, the respondents
are not precluded from applying for the said posts
afresh subject to the satisfaction of other eligibility
criteria.

17. The High Court did not keep in view the various
clauses in the Government Resolutions dated 21-8-
2006 and 15-9-2006 and also the terms of the
agreement entered into by the respondents with the
Government. Creation of posts was only for
administrative purposes for sanction of the amount
towards expenditure incurred but merely because the
posts were created, they cannot be held to be
permanent in nature. When the Government has
taken a policy decision to fill up 471 posts of Legal
Advisors, Law Officers and Law Instructors on
contractual basis, the Tribunal and the High Court
ought not to have interfered with the policy decision
to hold that the appointments are permanent in
nature.”

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26. In the aforesaid judgment the Hon’ble Apex Court

has relied upon the conditions of the engagement as

incorporated in the agreement. In the present case, the

conditions of engagement also include that the persons

engaged as Assistant Advocates can be removed if their work

performance is not found to be satisfactory but the

respondents have not adhered to the said condition as they

have not been able to point out that the work performance of

the petitioners is not satisfactory.

27. In the case of Om Prakash Joshi (supra), relied

upon by the counsel appearing for the respondent – JDA, the

Hon’ble Division Bench of the Rajasthan High Court, has held

as under:-

“36. Shri Dalpat Raj Bhandari, learned counsel
appearing for the petitioners has not cited a single
example of arbitrariness in any of the
appointment. Mere levelling of allegations is not
sufficient. The petitioners will have to prove the
same by cogent and convincing
evidence/documents. In the absence of which, the
same simply deserves to be ignored. As already
noticed, so far the posts of Advocate General and
Additional Advocate General are concerned, they
are the constitutional posts and appointments on
these posts are made in accordance with the
provisions contained in the Constitution of India.

These posts are not the posts under the
government service and it is nowhere laid-down
that such posts should be advertised. So far as the

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posts of Government Advocate and Public
Prosecutors are concerned, these posts are filled
up in accordance with the Rajasthan Judicial
Manual read with Sec. 24 of the Code of Criminal
Procedure. As rightly pointed out by Mr. Mehta,
learned Advocate General for the State of
Rajasthan, that the State Government has liberty
to appoint Advocates of its choice and confidence
in the interest of State litigation. We have already
referred to the appropriate rules which are in
existence and regulate appointment, termination
etc. of the Government Advocates, Public
Prosecutors etc. The State Government may or
may not ascertain the view of the Advocate
General or the Chief Justice or any Judges of the
High Court or to take strict view of any committee
that may be constituted for the purpose. It may or
may not ascertain the view of any of them while
making such appointments. Even where it chooses
to consult them their views are not binding on it. It
is for the State Government to select its own
Advocates to conduct cases on behalf of the State
in the High Court and in the courts subordinate to
it. Change of Ministry and political party has
nothing to do in the matter because, it is the State
Government who makes appointment/termination
etc.
…

38. The Advocates are enrolled by the Rajasthan
Bar Council and it is no where provided under any
law that the State has to provide room for their
work, nor it is possible for the State Government
to do so, because, litigation in the State is not

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dependent upon working of the Government, nor
this Hon’ble Court can justifiably issue any
direction to the State Government to provide
avenues for their works. Likewise, the Constitution
of India nowhere provides that there must be
equal distribution of works and equal opportunity
to seek work and compete for the persons like the
petitioners, namely, the Advocates. This Court will
not be justified to interfere in the matter of
engagement of Lawyers by the State Government
and that too, in the manner as suggested by the
petitioners. It is nowhere enjoined upon the State
Government to make equal distribution of the
State litigation amongst the Lawyers who want to
serve. It is well settled law that the State is free to
appoint Advocates of its own choice and
confidence. There is no requirement of law to
advertise posts of Advocate General and the
petitioner are free to apply for the posts which are
advertised. The posts of Advocate General/Addl.
Advocate General are not the posts under the
Government service and therefore, they are not
advertised. It is settled law that no one has a
vested right to claim appointment even if he is
selected by any Committee/Board or Agency.
Besides, for the posts in question, no one can
claim a right even for consideration because, these
posts need not be advertised as State Government
is empowered to make such professional
appointments as per its requirement and to
appoint the Advocates of its own choice and
confidence.”

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28. The said case is also of no help to the respondents

as therein the issue was as regards appointment of

Government Counsels and the Court did not interfere in the

matter of engagement of lawyers by the State Government

saying that it is a settled law that the State is free to appoint

the Advocates of its own choice and confidence. This Court is

also of the view that the State has an authority to engage the

lawyers of its own choice and confidence, however, any action

for engagement or their removal should be reasonable and

not arbitrary. When the terms and conditions of engagements

of Assistant Advocates like the petitioners provide for their

removal only on count of work performance then the

respondents could not disengage or cancel their engagements

at their whims.

29. In the case of Sushi Kumar Gupta (supra),

delivered by the Allahabad High Court and relied upon by the

counsel appearing for the JDA, the Allahabad High Court held

that the words “appointment” and “engagement” have

different connotation. The word “appointment” is related to

permanent post whereas the word “engagement” is related

to temporary post. This Court also does not dispute these

observations of the Allahabad High Court. However, this Court

is of the view that though the engagements of the petitioners

as Assistant Advocates may not be permanent in nature or

their appointment is like a servant, however, their

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engagement and removal should be reasonable and as per

the terms and conditions provided by the respondent JDA

themselves.

30. The Hon’ble Apex Court in the case of R.

Muthukrishnan v. The Registrar General of the High

Court of Judicature at Madras, in Writ Petition (C)

No.612 of 2012, decided on January 28, 2019 has

observed that the nobility of the legal system is to be ensured

at all costs so that the Constitution remains vibrant and to

expand its interpretation so as to meet new challenges. The

Hon’ble Apex Court in the aforesaid case has observed in

paras 14, 22 and 23 as under:-

“14. The legal profession cannot be equated with any
other traditional professions. It is not commercial in
nature and is a noble one considering the nature of
duties to be performed and its impact on the society.
The independence of the Bar and autonomy of the
Bar Council has been ensured statutorily in order to
preserve the very democracy itself and to ensure that
judiciary remains strong. Where the Bar has not
performed the duty independently and has become a
sycophant that ultimately results in the denigrating of
the judicial system and judiciary itself. There cannot
be existence of a strong judicial system without an
independent Bar.

…

22. The Bar is the mother of the judiciary and
consists of great jurists. The Bar has produced great
Judges, they have adorned the judiciary and

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rendered the real justice, which is essential for the
society.

23. The role of a lawyer is indispensable in the
system of delivery of justice. He is bound by the
professional ethics and to maintain the high
standard. His duty is to the court, to his own client,
to the opposite side, and to maintain the respect of
opposite party counsel also. What may be proper to
others in the society, may be improper for him to do
as he belongs to a respected intellectual class of the
society and a member of the noble profession, the
expectation from him is higher. Advocates are
treated with respect in society. People repose
immense faith in the judiciary and judicial system
and the first person who deals with them is a lawyer.
Litigants repose faith in a lawyer and share with
them privileged information. They put their
signatures wherever asked by a lawyer. An advocate
is supposed to protect their rights and to ensure that
untainted justice is delivered to his cause.”

31. In view of the observations of the Hon’ble Apex

Court, as quoted above, this Court is of the opinion that the

lawyers have some dignity and they cannot be treated like a

servant. Their engagement or disengagement has to be as

per the reasonable terms and conditions. The dignity of a

lawyer cannot be put to compromise. The respondents-

authorities cannot be allowed to engage or disengage a

lawyer for a legal work at their whims. The engagement or

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disengagement has to be in accordance with some procedure

and terms and conditions.

32. In the present case, the respondents neglected the

terms and conditions incorporated by them in the orders

issued by them and therefore the act of disengagement or

cancellation of the engagement of the petitioners from being

Assistant Advocates, is held to be an arbitrary act of the

respondents and that deserves to be quashed and set aside.

33. Accordingly, the writ petitions are allowed. The

orders of cancellation of engagement of the petitioners as

Assistant Advocates are quashed and set aside. The

respondent- JDA is directed to continue the petitioners as

Assistant Advocates on the terms and conditions and

remuneration as applicable in present.

34. Looking to the controversy and the dispute agitated

before this Court, this Court would also like to direct the

respondent- JDA as under:-

(i) The respondents shall frame a comprehensive

policy/ guidelines / instructions as regards the eligibility,

tenure and procedure regarding engagement and removal /

disengagement for Assistant Advocates;

(ii) The petitioners whose writ petitions are allowed by

this order shall be allowed to continue as Assistant Advocates

till their work is found to be qualitative and satisfactory or

any such policy/ guidelines/ instructions are framed as

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directed in above para (i), and fresh engagements are made

as per such policy; and

(iii) The respondents shall also incorporate provision in

the policy / guidelines/ instructions so that while engaging

the Assistant Advocates and also panel Advocates, the

representation of women lawyers and lawyers from scheduled

caste/ tribe, backward classes and weaker sections of the

society can be ensured as remuneration is being paid from

public exchequer and the JDA is an instrumentality of the

Government of Rajasthan.

35. In view of the order passed in the main petitions,

the stay applications and pending applications, if any also

stand disposed of.

36. The Registry is directed to place a copy of this

order in other connected petitions.

(GANESH RAM MEENA),J

Sharma NK/Dy. Registrar

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N.P. Upadhyay S/O Shri Heera Lal … vs Jaipur Development Authority on 25 March, 2026

Rajasthan High Court – Jaipur