Karan Shrivastava vs The State Of Madhya Pradesh

NEUTRAL CITATION NO. 2026:MPHC-GWL:33079

1


W.P. Nos. 12769/2020 &27731/2026

IN THE HIGH COURT OF MADHYA PRADESH
A T G W A L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA

WRIT PETITION No. 12769 of 2020
CNR No.: MPHC030160212020
ROHAN SHARMA

Versus

THE STATE OF MADHYA PRADESH AND OTHERS

Appearance:
Shri Abhishek Singh Bhadauriya, Advocate for petitioner.
Shri D.P.Singh, Advocate for Intervener.
Shri Prabhakar Singh, Advocate for Intervener.
Shri Ankur Mody, Additional Advocate General for the State.

&

WRIT PETITION No. 27731 of 2026
CNR No.: MPHC030185562026
KARAN SHRIVASTAVA AND ANR
Versus
THE STATE OF MADHYA PRADESH AND ANR

Appearance:
Shri M.P.S. Raghuwanshi, Senior Advocate with Shri R.B.S.
Tomar, Advocate for petitioners.
Shri Prashant Sharma, Advocate for Intervener.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 30-10-2026
10:07:41

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W.P. Nos. 12769/2020 &27731/2026

Shri Ankur Mody, Additional Advocate General for State.

Reserved on : 7/10/2026
Pronounced on : 29 /10 /2026

ORDER

Per : Justice Gurpal Singh Ahluwalia
By this common judgment, W.P. No. 12769/2020 and W.P. No.
27731/2026 shall be decided.
2. W.P. No. 12769/2020 has been filed seeking the following reliefs:
―i) That, the impugned amendment Annexure P-1 may
kindly be quashed and the promotional quota for
Ministerial staff created for the ADPO be held illegal,
ii) any other relief deemed fit in the facts and
circumstances of the case doing justice in the matter
including costs be also awarded.‖
3. W.P. No. 27731/2026 has been filed seeking the following reliefs:
―7.1 That, the impugned amendment Annexure P-1
may kindly be quashed and the promotional quota for
Ministerial staff created for the APPO be held illegal,
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 30-10-2026
10:07:41

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W.P. Nos. 12769/2020 &27731/2026

ii) That, other relief doing justice including cost be
ordered.‖
4. For the sake of convenience, the facts of W.P. No. 12769/2020 shall
be considered.
5. Petitioner is a law graduate and a registered advocate practicing at
Gwalior. It is the case of petitioner that he appeared in the M.P. ADPO
examinations held in the years 2011 and 2015, but he could not get
selected.
6. By this petition, petitioner has challenged the notification dated
14/10/2012 as ultra vires by which Schedule II and Schedule IV of the
Madhya Pradesh Public Prosecution (Gazetted Services) Recruitment
Rules, 1991 (in short ―Rules, 1991‖) were amended and 10% promotional
quota to the post of ADPO from the feeder post of Cr.P.C.Clerk/ Assistant
Grade III/APCD Grade III was incorporated.
7. It is submitted by counsel for petitioners that the importance of
ADPO in representing the State, primarily before the Court of Magistrate,
is an important function, which has been highlighted by the Supreme
Court in the case of Mahabir & Ors. v. State of Haryana , decided on
29/01/2025 in Criminal Appeal Nos. 5560-5561 of 2024 . The ADPOs
are appointed under Section 25 of the Cr.P.C. and is a public post of
Class-II cadre. As per the pre-amended provisions of Schedule II and
Schedule IV of the Rules, 1991, recruitment to the post of ADPO was
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 30-10-2026
10:07:41

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W.P. Nos. 12769/2020 &27731/2026

100% by direct recruitment. However, by the impugned amendment, a
10% quota has been provided for promotion from the post of Cr.P.C.
Clerk/Assistant Grade-III/APCD Grade III. It is submitted by counsel for
petitioner that the post of Cr.P.C. Clerk/Assistant Grade-III/APCD Grade
III is a Class-III clerical cadre post which has to perform
ministerial/clerical work only. They are not connected even remotely with
the judicial dispensation system. They cannot appear before the court,
they cannot examine or cross-examine witnesses, and they cannot conduct
trials. It is further submitted that by the impugned amendment, two
different promotional avenues have been provided for the post of Cr.P.C.
Clerk/Assistant Grade-III/APCD Grade III. The post of Cr.P.C.
Clerk/Assistant Grade-III/APCD Grade III is governed by the Madhya
Pradesh Public Prosecution Class-III (Non-Gazetted) Service Recruitment
Rules, 1998. There is already a promotional avenue for these posts, and
Assistant Grade-III/Cr.P.C. Clerk is a feeder post for promotion to the
post of Assistant Grade-II, and the post of APCD Grade III is a feeder
post for promotion to the post of PCD. Similarly, Assistant Grade-II can
be promoted to the post of Assistant Grade-I and Assistant Grade-I can be
promoted to the post of Superintendent. All these posts are clerical posts
of Class-III cadre, and by providing another promotional avenue directly
to the post of ADPO, the State has opened a new floodgate for promotion
directly from the post of Grade-III to Grade-II. It is further submitted that
only those candidates who are working on the post of Cr.P.C.
Clerk/Assistant Grade-III/APCD Grade III but are holding LL.B. degree
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 30-10-2026
10:07:41

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W.P. Nos. 12769/2020 &27731/2026

or equivalent degree from a recognized university can be considered for
promotion to the post of ADPO. Apart from the fact that the aforesaid
employees are involved in ministerial work only, the State has also
created another distinction between LL.B. graduate holding the post of
Cr.P.C. Clerk/Assistant Grade-III/APCD Grade III and employees who
are holding degrees other than an LL.B. degree. The minimum
qualification for direct recruitment to the post of Assistant Grade-
III/Cr.P.C. Clerk is Higher Secondary School Examination or High
School Examination (10+2) passed from the Board of Secondary
Education, Madhya Pradesh, Bhopal, or other institution recognized by
any State, and Hindi typing examination passed from the Madhya Pradesh
Board of Typing and Shorthand or any other institution recognized by the
Government, and possessing knowledge of computer operation also,
whereas for direct recruitment to the post of APCD Grade III, the
minimum qualification is Higher Secondary Examination or High School
Examination (10+2) passed from the Board of Secondary Education,
Madhya Pradesh, Bhopal, or other State-recognized institute. It is
submitted that although a qualification higher than what is prescribed for a
particular post may not be a disqualification, but by providing a separate
promotional avenue to persons holding an LL.B. degree, respondents have
created a class within a class which is not based on intelligible differentia
and has no reasonable nexus with the object sought to be achieved. It is
further submitted that this act of the respondents is contrary to Articles 14,
16 and 21 of the Constitution of India. Two promotional avenues, i.e., one
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 30-10-2026
10:07:41

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W.P. Nos. 12769/2020 &27731/2026

directly to Class-II cadre and another to Class-III cadre, cannot be
provided for a single feeder post. It is further submitted that earlier the
State of Chhattisgarh had also provided for 10% quota for promotion to
the post of ADPO from the post of Cr.P.C. Clerk/Assistant Grade-
III/APCD Grade III, but now, after realizing the difficulty, has withdrawn
the 10% quota of promotion. It is further submitted that the Director of
Prosecution, by letter dated 04/07/2019, had recommended to the State
Government to withdraw the 10% promotional quota on the ground that it
is violative of Section 49(1)(ag) of the Advocates Act and has also not
yielded encouraging results. Accordingly, relied upon judgments passed
by the Supreme Court in the cases of K. Anbhazhagan v.
Superintendent of Police , reported in AIR 2004 SC 524 , S.B. Sahane v.
State of Maharashtra , reported in AIR 1995 SC 1628 , D.S. Nakara &
Ors. v. Union of India , reported in AIR 1983 SC 130 , E.P. Royappa v.
State of Tamil Nadu & Ors. , reported in AIR 1974 SC 555 , K.J. John
& Ors. v. State of Kerala & Ors. , reported in AIR 1990 SC 1902 ,
Maneka Gandhi v. Union of India (UOI) & Ors. , reported in AIR 1978
SC 597 , Sathyavani Ponrani v. Samuel Raj & Ors. , reported in 2010
(4) CTC 833 , Shayara Bano & Ors. v. Union of India (UOI) & Ors. ,
reported in (2017) 9 SCC 1 , State of U.P. & Ors. v. Johri Mal , reported
in AIR 2004 SC 3800 , The State of West Bengal v. Anwar Ali Sarkar ,
reported in 1952 AIR(SC) 75 , S.P. Gupta v. Union of India (UOI) &
Ors. , reported in (1981) 1 SCC Supp 197 , The State of J. & K. v.
Triloki Nath Khosa & Ors. , reported in 1974 AIR(SC) 1 , Madhu
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 30-10-2026
10:07:41

NEUTRAL CITATION NO. 2026:MPHC-GWL:33079

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W.P. Nos. 12769/2020 &27731/2026

Kishwar & Ors. v. State of Bihar & Ors ., reported in 1996 AIR(SC)
1864 , Navtej Singh Johar & Ors. v. Union of India Thr. Secretary
Ministry of Law and Justice , reported in AIR 2018 SC 4321 ,
8. While arguing W.P. No. 27731/2026, it was submitted by Shri
M.P.S. Raghuvanshi that in the entire country, there is no provision for
promotion to the post of ADPO, which is the lowest post as per the
provisions of the Rules, 1991.
9. It is not out of place to mention here that Shri M.P.S. Raghuvanshi,
Senior Advocate, had appeared as an Additional Advocate General in
W.P. No. 12769/2020. Whether after having appeared for the State of
Madhya Pradesh, Shri Raghuvanshi should have argued against the State
of Madhya Pradesh on behalf of the petitioner is a matter which is left to
the wisdom of Shri M.P.S. Raghuvanshi, because it is not within the
domain of this Court to decide the question as to whether such an act
would amount to misconduct or not.
10. Shri Ankur Mody, Additional Advocate General, submitted that the
return filed by the State in W.P. No. 12769/ 2020 is not very encouraging.
No attempt has been made by the State authorities to justify the validity of
the amendment by which Schedule II and Schedule IV of the Rules,1991
were amended. However, it is submitted that the constitutionality of a
provision has to be presumed, and the burden heavily lies on the person
who challenges the constitutionality of a provision. It is submitted that the
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 30-10-2026
10:07:41

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W.P. Nos. 12769/2020 &27731/2026

arguments advanced by the counsel for petitioner are not sufficient to hold
that the act of the State Government is violative of Articles 14, 16, and 21
of the Constitution of India. However, it was fairly conceded by Shri
Ankur Mody that there cannot be two promotional avenues for a
single feeder post, i.e., one directly to Class-II cadre and another to
Class-III cadre. Counsel for the State also could not point out any
intelligible differentia behind bifurcating the cadre of Cr.P.C.
Clerk/Assistant Grade-III/APCD Grade III in two categories, i.e., (i)
candidates holding LL.B. degree or equivalent degree from a recognized
university, and (ii) candidates holding any other degree or the minimum
qualification of Higher Secondary School Examination. Counsel for the
State also could not justify as to how holding of an additional
qualification, other than the minimum qualification prescribed for
recruitment to the post of Assistant Grade-III/Cr.P.C. Clerk/APCD Grade
III, will constitute a separate class requiring separate treatment for such
candidates.
11. Shri D.P. Singh, counsel for the intervener, submitted that so far as
the letter dated 04/07/2019 written by the Director, Prosecution is
concerned, the same was rejected by the State Government by order dated
01/03/2021, and it was held that the observation made by the Director,
Prosecution, that candidates who were promoted from the post of Cr.P.C.
Clerk/Assistant Grade-III/APCD Grade III have not proved to be an
efficient one is misconceived, because some of the promotee ADPOs were
further promoted to the post of District Prosecution Officer. It is further
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 30-10-2026
10:07:41

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W.P. Nos. 12769/2020 &27731/2026

submitted that the authority to provide for a promotional quota rests with
the State Government, and if that source of authority has been utilized,
then it cannot be said that the amendment brought by the State in
Schedule II and Schedule IV of the Rules, 1991 is ultra vires .
Furthermore, the validity of amendment in Schedule II and Schedule IV
of the Rules, 1991 has been challenged after eighteen long years, and
therefore the petition is also liable to be dismissed on the ground of delay
and laches. Furthermore, the petitioner, after having failed twice in the
recruitment for the post of ADPO, has no locus standi to challenge the
validity of the amendment by which Schedule II and Schedule IV of the
Rules, 1991 were amended. However, counsel for the intervener also
could not point out as to how a distinction can be drawn by
bifurcating the clerical cadre of Assistant Grade-III/Cr.P.C.
Clerk/APCD Grade III in two categories, i.e., one holding an LL.B.
degree or equivalent degree from a recognized university, and
another holding degrees other than an LL.B. degree or holding the
minimum qualification .
12. Shri Prabhakar Singh, counsel for another intervener, submitted that
the constitutionality of a provision has to be presumed. As per Rule 6(4)
of the M.P. Public Services (Promotion) Rules, 2002 (for short ―Rules,
2002‖), eligible employees are required to be considered through the
prescribed promotion committee against the relevant vacancies. The
recommendation made by the Directorate of Public Prosecution for
withdrawal of the 10% promotional quota was rejected by the
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 30-10-2026
10:07:41

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W.P. Nos. 12769/2020 &27731/2026

Government vide order dated 01/03/2021. So far as the contention of
petitioners that the ministerial staff will be promoted to the post of ADPO
is concerned, it is submitted that the promotional scheme itself prescribes
the law qualification and requisite departmental experience before an
employee can be considered for promotion. It is further submitted that if
the amendment to Schedules II and IV is quashed, then it would abolish
the promotional avenue available to the proposed interveners. Thirty
departmental employees have already been promoted to the post of ADPO
under the 10% quota up to the year 2016, and the petitioner has not
challenged the individual promotion orders of those employees nor
impleaded them in the present proceedings. It is further submitted that the
right to be considered for promotion is a fundamental right under Article
16(1) of the Constitution of India.
13. Shri Prashant Sharma, counsel for another intervener, submitted
that Rule 6 of the Rules, 1991 provides the method of recruitment, and
promotion of members of the service as specified in Column 2 of
Schedule IV. It is submitted that the validity of Rule 6 of the Rules, 1991
has not been challenged; therefore, the amendment introduced by the State
in Schedules II and IV of Rules, 1991 cannot be challenged. The
presumption of constitutionality has not been rebutted by the counsel for
petitioners, and providing a 10% quota of promotion is within the
legislative competence of the State. It is submitted that no separate class
has been created; thus, there is no violation of Articles 14 and 16 of the
Constitution of India. Merely because the Cr.P.C. Clerks/Assistant Grade-
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 30-10-2026
10:07:41

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W.P. Nos. 12769/2020 &27731/2026

III/APCD Grade III are not required to compete in the examination
conducted by the PSC cannot be a ground to declare the provision as ultra
vires . It is further submitted that opening a promotional avenue is within
the employer's power. So far as the letter dated 04/07/2019 written by the
Director of Prosecution is concerned, it is submitted that merely because
some provision failed to fetch desirable results cannot be a ground to
declare it as ultra vires . However, it was fairly conceded by Shri Prashant
Sharma that the failure to achieve the desirable result may be a ground for
the State to withdraw such provision. It is further submitted that the power
of judicial review in testing the validity of a rule lies in a very narrow
compass, and prescription of a departmental quota is universal as provided
under Articles 16 and 21 of the Constitution of India. Accordingly, Shri
Sharma relied upon the judgments passed by the Supreme Court in the
cases of Public Services Tribunal Bar Association v. State of U.P. ,
reported in (2003) 4 SCC 104 , State of Bihar v. Bihar Distillery Ltd. ,
reported in (1997) 2 SCC 453 , Brijeshwar Singh Chahal (supra) , E.P.
Royappa (supra) , Roshan Lal Tandon v. Union of India , reported in
AIR 1967 SC 1889 (CB) , Paramjit Singh Sandhu v. Ram Rakha ,
reported in (1979) 3 SCC 478 , Lt. Cdr. M. Ramesh v. Union of India ,
reported in (2018) 16 SCC 195 , All India Judges’ Assn. v. Union of
India , reported in (2002) 4 SCC 247 , P.U. Joshi v. Accountant General,
Ahmedabad , reported in (2003) 2 SCC 632 , Union of India v.
Shivbachan Rai , reported in (2001) 9 SCC 356 , Sanjay Kumar Manjul
v. Chairman, UPSC , reported in (2006) 8 SCC 42 , Bachhittar Singh v.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 30-10-2026
10:07:41

NEUTRAL CITATION NO. 2026:MPHC-GWL:33079

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W.P. Nos. 12769/2020 &27731/2026

State of Punjab , reported in AIR 1963 SC 395 , Sethi Auto Service
Station v. DDA , reported in (2009) 1 SCC 180 , Union of India v.
Pushpa Rani , reported in (2008) 9 SCC 242 , Directorate of Film
Festivals v. Gaurav Ashwin Jain , reported in (2007) 4 SCC 737 ,
Associated Provincial Picture Houses v. Wednesbury Corporation ,
reported in [1948] 1 KB 223 , Union of India v. G. Ganayutham ,
reported in (1997) 7 SCC 463 , and Shayara (supra) .
14. As has already been pointed out, Shri Ankur Mody, Additional
Advocate General, conceded that the reasons and objects for introducing
the amendment in Schedules II and IV of Rules, 1991 have not been
placed on record. Even during the course of arguments, no attempt was
made either by the State counsel or by the counsel for the interveners to
place those reasons and objects on record. It was fairly conceded by Shri
Ankur Mody that he has nothing on record to show intelligible differentia
or reasonable nexus with the object sought to be achieved.
However, in view of the fact that the Court must always presume
the constitutionality of a provision, therefore, merely because the State
has failed to provide the basic record cannot be the sole ground for
declaring the amendment in Schedules II and IV of the Rules, 1991 as
unconstitutional. The Court has to assess the validity of the provision in
accordance with law, irrespective of fact as to whether sufficient material
has been provided by the State or not, for the simple reason that it is for
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 30-10-2026
10:07:41

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W.P. Nos. 12769/2020 &27731/2026

the petitioner to prove that the provision is unconstitutional and not
otherwise.
15. Heard learned counsel for parties.
16. The un-amended Schedule II and IV of Rules, 1991 reads as under :
Schedule II
Name
of
Deptt.
Name of
Service
Name of Post Numb
er of
Posts
Percentage of the number
of the duty posts to be
filled
1 2 3 4 5 6 7
Home
Deptt.
Madhya
Pradesh
Public
Prosecution
(Gazetted)
Service
Director

Joint Director


Deputy Director of
Prosecution
Deputy Director
(HQ),

Additional Public
Prosecutors,
District Public
Prosecution
Officer/Additional
District Public
Prosecution
Officer/Asstt.
Director

Assistant District
Public
1

1


17




58









330




















100
%
100%

100%


100%




100%
If no
suitable
officer is
available
in the
cadre then
on
deputa-
tion from
IAS/IPS/
Higher
Judicial
Service







----
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 30-10-2026
10:07:41

NEUTRAL CITATION NO. 2026:MPHC-GWL:33079

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W.P. Nos. 12769/2020 &27731/2026


Prosecution
Officer



Schedule IV
Name
of
Deptt
Name of
Service
Name of the
post from
which
promotion is to
be made
Minim
um
Experi
ence
for
being
qualifie
d for
promot
ion
Name of
the post to
which
promotion
is to be
made
Name of
Members of the
Departmental
Promotion
Committee
1 2 3 4 5 6
Home
Deptt
Madhya
Pradesh
Prosecution
(Gazetted)
Service
Director

Joint Director


Deputy
Director of
Prosecution
Deputy
Director (HQ),
Additional
Public
Prosecutors
Class- I



4 years
















Joint
Director
Class I














1. Chairman of
Madhya
Pradesh Public
Service
Commission by
him-Chairman
2. Principal
Secretary Home
Department –
Member
3. Principal
Secretary/Secre
tary Law
Department (or
the member
nominated by
him-member
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 30-10-2026
10:07:41

NEUTRAL CITATION NO. 2026:MPHC-GWL:33079

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W.P. Nos. 12769/2020 &27731/2026





Assistant
Director/
District Public
Prosecution
Officer/Additi
onal District
Public
Prosecution
Officer- Class
II

Assistant
District
Public
Prosecution
Officer-Class
II





5 years










6 years




Deputy
Director
prosecution
(HQ)
Additional
Public
Prosecutor
Class I



Assistant
Director/
District
Public
Prosecutio
n officer/
Add.
District
Public
Prosecutio
n Officer
Class II
4. Director of
prosecution –
member

-do-










do-

17. Amendment in both the Schedules was carried out in the year 2002
and now the existing Schedule II and IV of Rules, 1991 read as under :
Schedule II
Name
of
Name of
Service
Name of Post Numb
er of
Percentage of the number of
the duty posts to be filled
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 30-10-2026
10:07:41

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W.P. Nos. 12769/2020 &27731/2026

Deptt Posts
1 2 3 4 5 6 7
Home
Depart
ment
Madhya
Pradesh
Public
Prosecution
(Gazetted)
Service
Director

Joint Director


Deputy
Director of
Prosecution
Deputy
Director (HQ),

Additional
Public
Prosecutors,
District Public
Prosecution
Officer/Additio
nal District
Public
Prosecution
Officer/Asstt.
Director

Assistant
District Public
Prosecution
Officer


1

1


17





58











330























90
%

100%

100%


100%





100%











10%, If
LL.B.
passed
candida
te is not
availabl
e, then
to be
filled
by
direct
If no
suitable
officer is
available in
the cadre
then on
deputation
from
IAS/IPS/
Higher
Judicial
Service



----







CrPC
clerk/
Asstt.
Grade III
and APCD
Grade III
cadre
candidates
would be
eligible for
promotion
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 30-10-2026
10:07:41

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W.P. Nos. 12769/2020 &27731/2026

recruit
ment


to the post
of ADPO
who are
holding :

1. LL.B. or
equivalent
degree
from
recognized
University

2. At least 7
years
experience
as CrPC
Clerk/
Asstt.
Grade III
or APCD
Grade III
Cadre
without
any break

3. Should
not be
more than
40 years of
age.


Schedule IV
Name Name of Name of the Minimum Name of Name of
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 30-10-2026
10:07:41

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W.P. Nos. 12769/2020 &27731/2026

of
Deptt
Service post from
which
promotion is
to be made
Experienc
e for being
qualified
for
promotion
the post to
which
promotion
is to be
made
Members of
the
Departmental
Promotion
Committee
1 2 3 4 5 6
Home
Deptt
Madhya
Pradesh
Prosecution
(Gazetted)
Service
Director

Joint
Director


Deputy
Director of
Prosecution
Deputy
Director
(HQ),
Additional
Public
Prosecutors
Class- I









Assistant
Director/
District
Public
Prosecution
4 years
























5 years




Joint
Director
Class I






















Deputy
Director
prosecutio
n (HQ)
Additional
1. Chairman of
Madhya
Pradesh Public
Service
Commission
by him-
Chairman
2. Principal
Secretary
Home
Department –
Member
3. Principal
Secretary/Secr
etary Law
Department
(or the
member
nominated by
him-member
4. Director of
prosecution –
member


-do-




Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 30-10-2026
10:07:41

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W.P. Nos. 12769/2020 &27731/2026

Officer/Addi
tional
District
Public
Prosecution
Officer-
Class II

Assistant
District
Public
Prosecution
Officer-Class
II








CrPC
Clerk/Asstt.
Grade III
and APCD
Grade III








6 years













7 years
and other
conditions
which are
mentione
d in
Schedule
II
Public
Prosecutor
Class I





Assistant
Director/
District
Public
Prosecutio
n officer/
Add.
District
Public
Prosecutio
n Officer
Class II


Asstt
District
Public
Prosecutio
n Officer-
Class II








-do-













-do-

18. Thus, it is clear that prior to 2002, 100% posts of ADPO were to be
filled by direct recruitment and now after 2002, 90% posts are to be filled
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by direct recruitment and 10% posts are to be filled by promotion and the
Feeder post is CrPC clerk/Asstt. Grade III or APCD Grade III.
19. Before considering the submissions raised by Counsel for the
parties, this Court would like to consider the law governing the field of
adjudicating the question of validity.
20. The Supreme Court in the case of Sukanya Shantha v. Union of
India, reported in (2024) 15 SCC 535 has held as under :
V. The contours of Article 14
32. Article 14 guarantees that the ―State shall not deny to any
person equality before the law or the equal protection of the
laws within the territory of India‖. Equality is a crucial aspect of
the constitutional vision. Immediately after the adoption of the
Constitution, this Court laid down the standard to test the
validity of laws against Article 14. In a Constitution Bench
decision in Charanjit Lal Chowdhury v. Union of India , B.K.
Mukherjea, J. articulated that a classification under Article 14
―should never be arbitrary‖. It was held that such classification
must always ―rest upon some real and substantial distinction
bearing a reasonable and just relation to the things in respect to
which the classification is made‖. If a classification is ―made
without any substantial basis‖, it should be ―regarded as
invalid‖. The principle of classification was reiterated in a
subsequent Constitution Bench decision in State of Bombay v.
F.N. Balsara .
33. Later, a seven-Judge Bench decision in State of W.B. v.
Anwar Ali Sarkar solidified the requirement of the twin test
under Article 14. Speaking for the Court, S.R. Das, J. held:
(SCC p. 62, para 85)
― 85 . … In order to pass the test, two conditions must be
fulfilled, namely: ( 1 ) that the classification must be founded on
an intelligible differentia which distinguishes those that are
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grouped together from others, and ( 2 ) that that differentia must
have a rational relation to the object sought to be achieved by
the Act. The differentia, which is the basis of the classification,
and the object of the Act are distinct things, and what is
necessary is that there must be a nexus between them. In short,
while the article forbids class legislation in the sense of making
improper discrimination by conferring privileges or imposing
liabilities upon persons arbitrarily selected out of a large number
of other persons similarly situated in relation to the privileges
sought to be conferred or the liability proposed to be imposed, it
does not forbid classification for the purpose of legislation,
provided such classification is not arbitrary in the sense I have
just explained.‖
34. Adding to the above principles, S.R. Das, J., in Ram
Krishna Dalmia v. S.R. Tendolkar , held that the classification
―may be founded on different bases, namely, geographical, or
according to objects or occupations or the like‖, but it needs to
have a reasonable nexus with the object of the statute. It was
held that ―Article 14 condemns discrimination not only by a
substantive law but also by a law of procedure‖. Furthermore,
the Court ―may take into consideration matters of common
knowledge, matters of common report, the history of the times
and may assume every state of facts which can be conceived
existing at the time of legislation‖. The Court further reiterated
that: (SCC OnLine SC para 12)
― 12 . … ( ii ) A statute may direct its provisions against one
individual person or thing or to several individual persons or
things but no reasonable basis of classification may appear on
the face of it or be deducible from the surrounding
circumstances, or matters of common knowledge. In such a case
the court will strike down the law as an instance of naked
discrimination, …‖
35. Subsequently, in E.P. Royappa v. State of T.N. , a
Constitution Bench of this Court added a crucial principle of
non-arbitrariness to the discourse of equality under Article 14.
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The Court was adjudicating the validity of an administrative
order. The Court held that: (SCC p. 38, para 85)
― 85 . … Equality is a dynamic concept with many aspects and
dimensions and it cannot be ―cribbed, cabined and confined‖
within traditional and doctrinaire limits. From a positivistic
point of view, equality is antithetic to arbitrariness. In fact
equality and arbitrariness are sworn enemies; one belongs to the
rule of law in a republic while the other, to the whim and caprice
of an absolute monarch. Where an act is arbitrary, it is implicit
in it that it is unequal both according to political logic and
constitutional law and is therefore violative of Article 14, …‖
36. The principle of non-arbitrariness and reasonableness
was then emphasised in the seven-Judge Bench decision in
Maneka Gandhi v. Union of India . It was held: (SCC pp. 283-
84, para 7)
― 7 . … Article 14 strikes at arbitrariness in State action and
ensures fairness and equality of treatment. The principle of
reasonableness, which legally as well as philosophically, is an
essential element of equality or non-arbitrariness, pervades
Article 14 like a brooding omnipresence and the procedure
contemplated by Article 21 must answer the test of
reasonableness in order to be in conformity with Article 14. It
must be ―right and just and fair‖ and not arbitrary, fanciful or
oppressive; otherwise, it would be no procedure at all and the
requirement of Article 21 would not be satisfied.‖
37. To test the validity of laws, the twin test of intelligible
differentia and reasonable nexus held ground. Whether the test
of arbitrariness is a valid principle under Article 14 led to a
conflicting set of decisions. In Shayara Bano v. Union of India ,
in testing the validity of Section 2 of the Muslim Personal Law
(Shariat) Application Act, 1937 which validates the triple talaq,
R.F. Nariman, J. endorsed the test of manifest arbitrariness. It
was held: (SCC p. 99, para 101)
― 101 . … The test of manifest arbitrariness, therefore, as laid
down in the aforesaid judgments would apply to invalidate
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legislation as well as subordinate legislation under Article 14.
Manifest arbitrariness, therefore, must be something done by the
legislature capriciously, irrationally and/or without adequate
determining principle. Also, when something is done which is
excessive and disproportionate, such legislation would be
manifestly arbitrary. We are, therefore, of the view that
arbitrariness in the sense of manifest arbitrariness as pointed out
by us above would apply to negate legislation as well under
Article 14.‖
38. A formalistic understanding of the classification test was
then critiqued by this Court in Navtej Singh Johar v. Union of
India . The Court was dealing with a challenge to the
constitutionality of Section 377 of the Penal Act, 1860, to the
extent that it criminalised consensual sexual conduct between
adults. In his concurring opinion, one of us (D.Y. Chandrachud,
J.) held: (SCC p. 209, para 409)
― 409 . Equating the content of equality with the
reasonableness of a classification on which a law is based
advances the cause of legal formalism. The problem with the
classification test is that what constitutes a reasonable
classification is reduced to a mere formula: the quest for an
intelligible differentia and the rational nexus to the object sought
to be achieved. In doing so, the test of classification risks
elevating form over substance. The danger inherent in legal
formalism lies in its inability to lay threadbare the values which
guide the process of judging constitutional rights. Legal
formalism buries the life-giving forces of the Constitution under
a mere mantra. What it ignores is that Article 14 contains a
powerful statement of values—of the substance of equality
before the law and the equal protection of laws. To reduce it to a
formal exercise of classification may miss the true value of
equality as a safeguard against arbitrariness in State action. As
our constitutional jurisprudence has evolved towards
recognising the substantive content of liberty and equality, the
core of Article 14 has emerged out of the shadows of
classification. Article 14 has a substantive content on which,
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together with liberty and dignity, the edifice of the Constitution
is built. Simply put, in that avatar, it reflects the quest for
ensuring fair treatment of the individual in every aspect of
human endeavour and in every facet of human existence.‖
The Judges declared that Section 377 is manifestly arbitrary.
The doctrine of manifest arbitrariness was also adopted in the
Constitution Bench decision in Joseph Shine v. Union of India .
39. Referring to the decisions in Shayara Bano , Navtej Singh
Johar and Joseph Shine , a Constitution Bench in Assn. for
Democratic Reforms (Electoral Bond Scheme) v. Union of India
(hereinafter ― ADR ‖) summarised the doctrine of manifest
arbitrariness in the following words: ( ADR case , SCC pp. 149-
50, para 200)
― 200 . … Courts while testing the validity of a law on the
ground of manifest arbitrariness have to determine if the statute
is capricious, irrational and without adequate determining
principle, or something which is excessive and disproportionate.
This Court has applied the standard of ―manifest arbitrariness‖
in the following manner:
200.1 . A provision lacks an ―adequate determining principle‖
if the purpose is not in consonance with constitutional values. In
applying this standard, courts must make a distinction between
the ―ostensible purpose‖, that is, the purpose which is claimed
by the State and the ―real purpose‖, the purpose identified by
courts based on the available material such as a reading of the
provision; and
200.2 . A provision is manifestly arbitrary even if the
provision does not make a classification.‖
40. The Constitution Bench further elucidated the standards
of manifest arbitrariness to test the validity of a plenary
legislation with those of subordinate legislation: ( ADR case ,
SCC p. 152, para 204)
― 204 . The above discussion shows that manifest arbitrariness
of a subordinate legislation has to be primarily tested vis-à-vis
its conformity with the parent statute. Therefore, in situations
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where a subordinate legislation is challenged on the ground of
manifest arbitrariness, this Court will proceed to determine
whether the delegate has failed ‗to take into account very vital
facts which either expressly or by necessary implication are
required to be taken into consideration by the statute or, say, the
Constitution.‘ In contrast, application of manifest arbitrariness to
a plenary legislation passed by a competent legislation requires
the Court to adopt a different standard because it carries greater
immunity than a subordinate legislation. We concur with
Shayara Bano that a legislative action can also be tested for
being manifestly arbitrary. However, we wish to clarify that
there is, and ought to be, a distinction between plenary
legislation and subordinate legislation when they are challenged
for being manifestly arbitrary.‖

41. The Court recently in State of Punjab v. Davinder Singh
dealt with whether sub-classification among the Scheduled
Castes is permissible under Article 14. The seven-Judge Bench
reiterated that the State is allowed to classify in a manner that is
not discriminatory. The Court summarised the twin-test of
classification as follows: (SCC pp. 116-17, para 85)
― 85 . The Constitution permits valid classification if two
conditions are fulfilled. First , there must be an intelligible
differentia which distinguishes persons grouped together from
others left out of the group. The phrase ―intelligible differentia‖
means difference capable of being understood. The difference is
capable of being understood when there is a yardstick to
differentiate the class included and others excluded from the
group. In the absence of the yardstick, the differentiation would
be without a basis and hence, unreasonable. The basis of
classification must be deducible from the provisions of the
statute; surrounding circumstances or matters of common
knowledge. In making the classification, the State is free to
recognise degrees of harm. Though the classification need not
be mathematical in precision, there must be some difference
between the persons grouped and the persons left out, and the
difference must be real and pertinent. The classification is
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unreasonable if there is ―little or no difference‖. Second , the
differentia must have a rational relation to the object sought to
be achieved by the law, that is, the basis of classification must
have a nexus with the object of the classification.‖
42. The constitutional standards laid down by the Court under
Article 14 can be summarised as follows. First, the Constitution
permits classification if there is intelligible differentia and
reasonable nexus with the object sought. Second, the
classification test cannot be merely applied as a mathematical
formula to reach a conclusion. A challenge under Article 14 has
to take into account the substantive content of equality which
mandates fair treatment of an individual. Third, in undertaking
classification, a legislation or subordinate legislation cannot be
manifestly arbitrary i.e. courts must adjudicate whether the
legislature or executive acted capriciously, irrationally and/or
without adequate determining principle, or did something which
is excessive and disproportionate. In applying this constitutional
standard, courts must identify the ―real purpose‖ of the statute
rather than the ―ostensible purpose‖ presented by the State, as
summarised in ADR . Fourth, a provision can be found
manifestly arbitrary even if it does not make a classification.
Fifth, different constitutional standards have to be applied when
testing the validity of legislation as compared to subordinate
legislation.

21. The Supreme Court in the case of Public Services Tribunal Bar
Association (Supra) has held as under :
28. In State of Bihar v. Bihar Distillery Ltd. this Court indicated
the approach which the Court should adopt while examining the
validity/constitutionality of a legislation. It would be useful to
remind ourselves of the principles laid down which read: (SCC
p. 466, para 17)
―The approach of the court, while examining the challenge to
the constitutionality of an enactment, is to start with the
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presumption of constitutionality. The court should try to sustain
its validity to the extent possible. It should strike down the
enactment only when it is not possible to sustain it. The court
should not approach the enactment with a view to pick holes or
to search for defects of drafting, much less inexactitude of
language employed. Indeed, any such defects of drafting should
be ironed out as part of the attempt to sustain the
validity/constitutionality of the enactment. After all, an Act
made by the legislature represents the will of the people and that
cannot be lightly interfered with. The unconstitutionality must
be plainly and clearly established before an enactment is
declared as void. The same approach holds good while
ascertaining the intent and purpose of an enactment or its scope
and application.‖
In the same para the Court further observed as follows:
―The court must recognize the fundamental nature and
importance of legislative process and accord due regard and
deference to it, just as the legislature and the executive are
expected to show due regard and deference to the judiciary. It
cannot also be forgotten that our Constitution recognizes and
gives effect to the concept of equality between the three wings
of the State and the concept of ‗checks and balances‘ inherent in
such scheme.‖

22. The Supreme Court n the case of Noel Harper v. Union of India,
reported in (2023) 3 SCC 544 has held as under :
83……It is rightly urged by the respondents that whenever the
challenge is to the amended provisions, the scope of enquiry,
inter alia, ought to be as to whether the same is in consonance
with the principal Act, achieve the object and purpose of the
principal Act and are otherwise just, rational and reasonable.
Further, there is no fundamental right vested in anyone to
receive foreign contribution (donation) or foreign exchange; and
that the purport of the principal Act and the impugned
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amendments are only to provide a regulatory framework and not
one of complete prohibition.

121. We need to bear in mind that there is presumption that
Parliament understands and reacts to the needs of its own people
as per the exigencies and experience gained in the
implementation of the law. Mere plea of inconvenience is not
enough to attract the constitutional inhibition. The courts ought
not to adopt a doctrinaire approach in construing the amended
provisions and undermine the legislative intent of strengthening
the regulatory mechanism concerning foreign contribution. The
legislature enjoys considerable latitude while exercising its
wisdom on the basis of inputs collated from different
…….
quarters

23. The Supreme Court in the case of State of J&K v. Triloki Nath
Khosa, reported in (1974) 1 SCC 19 has held as under :
18. This submission is erroneous in its formulation of a legal
proposition governing onus of proof and it is unjustified in the
charge that the record discloses no evidence to show the
necessity of the new Rule. There is always a presumption in
favour of the constitutionality of an enactment and the burden
upon him who attacks it to show that there has been a clear
transgression of the constitutional principles. A rule cannot be
struck down as discriminatory on any a priori reasoning. ―That
where a party seeks to impeach the validity of a rule made by a
competent authority on the ground that the Rules offend Act. 14
the burden is on him to plead and prove the infirmity is too well
established to need elaboration.‖ The burden thus is on the
respondents to set out facts necessary to sustain the plea of
discrimination and to adduce ―cogent and convincing evidence‖
to prove those facts for ―there is a presumption that every factor
which is relevant or material has been taken into account in
formulating the classification‖. In G.D. Kelkar v. Chief
Controller of Imports and Exports Subba Rao, C.J., speaking for
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the Court has cited three other decisions of the Court in support
of the proposition that ―unless the classification is unjust on the
face of it, the onus lies upon the party attacking the
classification to show by pleading the necessary material before
the Court that the said classification is unreasonable and
violative of Article 16 of the Constitution‖.

31. Classification, however, is fraught with the danger that it
may produce artificial inequalities and therefore, the right to
classify is hedged in with salient restraints; or else, the guarantee
of equality will be submerged in class legislation masquerading
as laws meant to govern well marked classes characterized by
different and distinct attainments. Classification, therefore, must
be truly founded on substantial differences which distinguish
persons grouped together from those left out of the group and
such differential attributes must bear a just and rational relation
to the object sought to be achieved.
32. Judicial scrutiny can therefore extend only to the
consideration whether the classification rests on a reasonable
basis and whether it bears nexus with the object in view. It
cannot extend to embarking upon a nice or mathematical
evaluation of the basis of classification, for were such an inquiry
permisible it would be open to the Courts to substitute their own
judgment for that of the legislature or the Rule-making authority
on the need to classify or the desirability of achieving a
particular object.

24. The Supreme Court in the case of Om Kumar v. Union of India,
reported in (2001) 2 SCC 386 has held as under:
58. Initially, our courts, while testing legislation as well as
administrative action which was challenged as being
discriminatory under Article 14, were examining whether the
classification was discriminatory, in the sense whether the
criteria for differentiation were intelligible and whether there
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was a rational relation between the classification and the object
sought to be achieved by the classification. It is not necessary to
give citation of cases decided by this Court where administrative
action was struck down as being discriminative. There are
numerous.
(ii) Arbitrariness test under Article 14
59. But, in E.P. Royappa v. State of T.N. Bhagwati, J laid down
another test for purposes of Article 14. It was stated that if the
administrative action was ―arbitrary‖, it could be struck down
under Article 14. This principle is now uniformly followed in all
courts more rigorously than the one based on classification.
Arbitrary action by the administrator is described as one that is
irrational and not based on sound reason. It is also described as
one that is unreasonable.
( b ) If, under Article 14, administrative action is to be struck
down as discriminative, proportionality applies and it is primary
review. If it is held arbitrary, Wednesbury applies and it is
secondary review
60. We have now reached the crucial aspect directly arising in
the case. This aspect was left open for discussion in future in
Ganayutham but as the question of ―arbitrariness‖ (and not of
discriminatory classification) arises here, we wish to make the
legal position clear.
61. When does the court apply, under Article 14, the
proportionality test as a primary reviewing authority and when
does the court apply the Wednesbury rule as a secondary
reviewing authority? From the earlier review of basic principles,
the answer becomes simple. In fact, we have further guidance in
this behalf.
62. In the European Court, it appears that administrative action
can be challenged under Article 14 of the Convention
(corresponding to Article 14 of our Constitution) as being
discriminatory and be tested by applying the principle of
―proportionality‖. Prof. Craig refers to the judgment of the
European Court under Article 14 in Lithgow v. UK as follows:
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―The differential treatment must not only pursue a legitimate
aim. It had to be proportionate. There had to be relationship of
proportionality between the means employed and the aim sought
to be realised‖
63. Similarly, in the European law, in relation to discrimination
on ground of sex, the principle of proportionality has been
applied and it has been held that the State has to justify its
action. In EU Law and Human Rights by Lammy Betten and
Nicholas Grief, (1998 at p. 98), it is stated:
―If indirect discrimination were established, the Government
would have to show ‗very weighty reasons‘ by way of objective
justification, bearing in mind that derogations from fundamental
rights must be construed strictly and in accordance with the
principle of proportionality .‖ [ Johnston v. Chief Constable of
the RUC ECR (para 38.51)].
64. In the context of Article 14 of the English Act, 1998, (which
is similar to our Article 14) Prof. Craig refers to the above
principle. (See Administrative Law , Craig 4th Edn. 1999, p.
652.) Thus, it would appear that under Article 14 of the
European Convention, principle of proportionality is invoked
where questions of discrimination are involved and the court is a
primary reviewing authority. According to Prof. Craig, this is
likely to be the position under Article 14 of the English Act,
1998.
65. In the U.S., in the matter of discrimination, tests of
―intermediate scrutiny‖ and ―strict scrutiny‖ have been laid
down. In cases of affirmative action, the U.S. Courts have
hitherto been applying the ―intermediate scrutiny test‖. See the
discussion in Indra Sawhney v. Union of India (SCC at pp. 684-
85) by Jeevan Reddy, J. But recently, however, in 1995, the U.S.
Supreme Court has shifted, in matters of affirmative action,
from the ―intermediate scrutiny‖ test to the ―strict scrutiny‖ test.
See Adarand Constructors Inc v. Pena referred to by the
Constitution Bench recently in Ajit Singh ( II ) v. State of Punjab
(SCC at p. 232).
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66. It is clear from the above discussion that in India where
administrative action is challenged under Article 14 as being
discriminatory, equals are treated unequally or unequals are
treated equally, the question is for the Constitutional Courts as
primary reviewing courts to consider correctness of the level of
discrimination applied and whether it is excessive and whether it
has a nexus with the objective intended to be achieved by the
administrator. Here the court deals with the merits of the
balancing action of the administrator and is, in essence, applying
―proportionality‖ and is a primary reviewing authority
67. But where an administrative action is challenged as
―arbitrary‖ under Article 14 on the basis of Royappa (as in cases
where punishments in disciplinary cases are challenged), the
question will be whether the administrative order is ―rational‖ or
―reasonable‖ and the test then is the Wednesbury test. The courts
would then be confined only to a secondary role and will only
have to see whether the administrator has done well in his
primary role, whether he has acted illegally or has omitted
relevant factors from consideration or has taken irrelevant
factors into consideration or whether his view is one which no
reasonable person could have taken. If his action does not satisfy
these rules, it is to be treated as arbitrary. [In G.B. Mahajan v.
Jalgaon Municipal Council (SCC at p. 111).] Venkatachaliah, J.
(as he then was) pointed out that ―reasonableness‖ of the
administrator under Article 14 in the context of administrative
law has to be judged from the stand point of Wednesbury rules.
In Tata Cellular v. Union of India (SCC at pp. 679-80), Indian
Express Newspapers Bombay (P) Ltd. v. Union of India (SCC at
p. 691), Supreme Court Employees’ Welfare Assn. v. Union of
India (SCC at p. 241) and U.P. Financial Corpn. v. Gem Cap
(India) (P). Ltd. (SCC at p. 307) while judging whether the
administrative action is ―arbitrary‖ under Article 14 (i.e.
otherwise then being discriminatory), this Court has confined
itself to a Wednesbury review always.
68. Thus, when administrative action is attacked as
discriminatory under Article 14, the principle of primary review
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is for the courts by applying proportionality. However, where
administrative action is questioned as ―arbitrary‖ under Article
14, the principle of secondary review based on Wednesbury
principles applies.
Proportionality and punishments in service law
69. The principles explained in the last preceding paragraph in
respect of Article 14 are now to be applied here where the
question of ―arbitrariness‖ of the order of punishment is
questioned under Article 14.
70. In this context, we shall only refer to these cases. In Ranjit
Thakur v. Union of India this Court referred to ―proportionality‖
in the quantum of punishment but the Court observed that the
punishment was ―shockingly‖ disproportionate to the
misconduct proved. In B.C. Chaturvedi v. Union of India this
Court stated that the court will not interfere unless the
punishment awarded was one which shocked the conscience of
the court. Even then, the court would remit the matter back to
the authority and would not normally substitute one punishment
for the other. However, in rare situations, the court could award
an alternative penalty. It was also so stated in Ganayutham .
71. Thus, from the above principles and decided cases, it must
be held that where an administrative decision relating to
punishment in disciplinary cases is questioned as ―arbitrary‖
under Article 14, the court is confined to Wednesbury principles
as a secondary reviewing authority. The court will not apply
proportionality as a primary reviewing court because no issue of
fundamental freedoms nor of discrimination under Article 14
applies in such a context. The court while reviewing punishment
and if it is satisfied that Wednesbury principles are violated, it
has normally to remit the matter to the administrator for a fresh
decision as to the quantum of punishment. Only in rare cases
where there has been long delay in the time taken by the
disciplinary proceedings and in the time taken in the courts, and
such extreme or rare cases can the court substitute its own view
as to the quantum of punishment.

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25. The Supreme Court in the case of Shayara Bano v. Union of
India, reported in (2017) 9 SCC 1 has held as under :
62. Article 14 of the Constitution of India is a facet of equality
of status and opportunity spoken of in the Preamble to the
Constitution. The Article naturally divides itself into two parts—
(1) equality before the law, and (2) the equal protection of the
law. Judgments of this Court have referred to the fact that the
equality before law concept has been derived from the law in the
UK, and the equal protection of the laws has been borrowed
from the 14th Amendment to the Constitution of the United
States of America. In a revealing judgment, Subba Rao, J.,
dissenting, in State of U.P. v. Deoman Upadhyaya , AIR p. 1134
para 26 : SCR at p. 34 further went on to state that whereas
equality before law is a negative concept, the equal protection of
the law has positive content. The early judgments of this Court
referred to the ―discrimination‖ aspect of Article 14, and
evolved a rule by which subjects could be classified. If the
classification was ―intelligible‖ having regard to the object
sought to be achieved, it would pass muster under Article 14‘s
anti-discrimination aspect. Again, Subba Rao, J., dissenting, in
Lachhman Dass v. State of Punjab , SCR at p. 395, warned that:
(AIR p. 240, para 50)
― 50 . … Overemphasis on the doctrine of classification or an
anxious and sustained attempt to discover some basis for
classification may gradually and imperceptibly deprive the
Article of its glorious content.‖
He referred to the doctrine of classification as a ―subsidiary
rule‖ evolved by courts to give practical content to the said
Article.
63. In the pre-1974 era, the judgments of this Court did refer to
the ―rule of law‖ or ―positive‖ aspect of Article 14, the
concomitant of which is that if an action is found to be arbitrary
and, therefore, unreasonable, it would negate the equal
protection of the law contained in Article 14 and would be
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struck down on this ground. In S.G. Jaisinghani v. Union of
India , this Court held: (SCR pp. 718-19 : AIR p. 1434, para 14)
― 14 . In this context it is important to emphasise that the absence
of arbitrary power is the first essential of the rule of law upon
which our whole constitutional system is based. In a system
governed by rule of law, discretion, when conferred upon
executive authorities, must be confined within clearly defined
limits. The rule of law from this point of view means that
decisions should be made by the application of known principles
and rules and in general, such decisions should be predictable
and the citizen should know where he is. If a decision is taken
without any principle or without any rule it is unpredictable and
such a decision is the antithesis of a decision taken in
accordance with the rule of law. (See Dicey—― Law of the
Constitution ‖—10th Edn., Introduction cx.) ―Law has reached
its finest moments‖, stated Douglas, J. in United States v.
Wunderlich : (SCC OnLine US SC para 9)
‗ 9 . … when it has freed man from the unlimited discretion of
some ruler…. Where discretion, is absolute, man has always
suffered.‘
It is in this sense that the rule of law may be said to be the sworn
enemy of caprice. Discretion, as Lord Mansfield stated it in
classic terms in John Wilkes , Burr at p. 2539: (ER p. 334)
‗… means sound discretion guided by law. It must be governed
by rule, not by humour : it must not be arbitrary, vague, and
fanciful….‘ ‖
This was in the context of service rules being seniority rules,
which applied to the Income Tax Department, being held to be
violative of Article 14 of the Constitution of India.
64. Similarly, again in the context of an Article 14 challenge to

service rules, this Court held in State of Mysore v. S.R. Jayaram
as follows: (SCR pp. 353-54 : AIR p. 349, para 6)
― 6 . The principle of recruitment by open competition aims at
ensuring equality of opportunity in the matter of employment
and obtaining the services of the most meritorious candidates.
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Rules 1 to 8, 9(1) and the first part of Rule 9(2) seek to achieve
this aim. The last part of Rule 9(2) subverts and destroys the
basic objectives of the preceding rules. It vests in the
Government an arbitrary power of patronage. Though Rule 9(1)
requires the appointment of successful candidates to Class I
posts in the order of merit and thereafter to Class II posts in the
order of merit, Rule 9(1) is subject to Rule 9(2), and under the
cover of Rule 9(2) the Government can even arrogate to itself
the power of assigning a Class I post to a less meritorious and a
Class II post to a more meritorious candidate. We hold that the
last part of Rule 9(2) gives the Government an arbitrary power
of ignoring the just claims of successful candidates for
recruitment to offices under the State. It is violative of Articles
14 and 16(1) of the Constitution and must be struck down.‖
65. In the celebrated Indira Nehru Gandhi v. Raj Narain
judgment, Article 329-A clauses (4) and (5) were struck down
by a Constitution Bench of this Court. Applying the newly
evolved basic structure doctrine laid down in Kesavananda
Bharati v. State of Kerala , Ray, C.J. struck down the said
amendment thus: ( Indira Nehru Gandhi case , SCC p. 44, para
59)
― 59 . Clause (4) suffers from these infirmities. First, the forum
might be changed but another forum has to be created. If the
constituent power became itself the forum to decide the disputes
the constituent power by repealing the law in relation to election
petitions and matters connected therewith did not have any
petition to seize upon to deal with the same. Secondly, any
decision is to be made in accordance with law. Parliament has
power to create law and apply the same. In the present case, the
constituent power did not have any law to apply to the case,
because the previous law did not apply and no other law was
applied by clause (4). The validation of the election in the
present case is, therefore, not by applying any law and it,
therefore, offends rule of law.‖
This passage is of great significance in that the amendment was
said to be bad because the constituent power did not have any
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law to apply to the case, and this being so, the rule of law
contained in the Constitution would be violated. This rule of law
has an obvious reference to Article 14 of the Constitution, in
that it would be wholly arbitrary to decide the case without
applying any law, and would thus violate the rule of law
contained in the said Article.
66. Chandrachud, J., was a little more explicit in that he
expressly referred to Article 14 and stated that Article 329-A is
an outright negation of the right of equality conferred by Article
14. This was the case because the law would be discriminatory
in that certain high personages would be put above the law in
the absence of a differentia reasonably related to the object of
the law. He went on to add: ( Indira Nehru Gandhi case , SCC p.
258, para 681)
― 681 . It follows that clauses (4) and (5) of Article 329-A are
arbitrary and are calculated to damage or destroy the rule of law.
Imperfections of language hinder a precise definition of the rule
of law as of the definition of ―law‖ itself. And the constitutional
law of 1975 has undergone many changes since A.V. Dicey, the
great expounder of the rule of law, delivered his lectures as
Vinerian Professor of English law at Oxford, which were
published in 1885 under the title, ― Introduction to the Study of
the Law of the Constitution ‖. But so much, I suppose, can be
said with reasonable certainty that the rule of law means that the
exercise of powers of Government shall be conditioned by law
and that subject to the exceptions to the doctrine of equality, no
one shall be exposed to the arbitrary will of the Government.
Dicey gave three meanings to rule of law: Absence of arbitrary
power, equality before the law or the equal subjection of all
classes to the ordinary law of the land administered by ordinary
law courts and that the Constitution is not the source but the
consequence of the rights of individuals, as defined and
enforced by the courts. The second meaning grew out of Dicey‘s
unsound dislike of the French Droit Administratif which he
regarded ―as a misfortune inflicted upon the benighted folk
across the Channel‖. [See S.A. de Smith: Judicial Review of
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Administrative Action , (1968) p. 5.] Indeed, so great was his
influence on the thought of the day that as recently as in 1935
Lord Hewart, the Lord Chief Justice of England, dismissed the
term ―administrative law‖ as ―continental jargon‖. The third
meaning is hardly apposite in the context of our written
Constitution for, in India, the Constitution is the source of all
rights and obligations. We may not therefore rely wholly on
Dicey‘s exposition of the rule of law but ever since the Second
World War, the rule has come to acquire a positive content in all
democratic countries. [See Wade and Phillips: Constitutional
Law (6th Edn., pp. 70-73).] The International Commission of
Jurists, which has a consultative status under the United Nations,
held its Congress in Delhi in 1959 where lawyers, Judges and
law teachers representing fifty-three countries affirmed that the
rule of law is a dynamic concept which should be employed to
safeguard and advance the political and civil rights of the
individual in a free society. One of the committees of that
Congress emphasised that no law should subject any individual
to discriminatory treatment. These principles must vary from
country to country depending upon the provisions of its
Constitution and indeed upon whether there exists a written
Constitution. As it has been said in a lighter vein, to show the
supremacy of the Parliament, the charm of the English
Constitution is that ―it does not exist‖. Our Constitution exists
and must continue to exist. It guarantees equality before law and
the equal protection of laws to everyone. The denial of such
equality, as modified by the judicially evolved theory of
classification, is the very negation of rule of law.‖
This paragraph is an early application of the doctrine of
arbitrariness which follows from the rule of law contained in
Article 14. It is of some significance that Dicey‘s formulation of
the rule of law was referred to, which contains both absence of
arbitrary power and equality before the law, as being of the
essence of the rule of law.
67. We now come to the development of the doctrine of
arbitrariness and its application to State action as a distinct
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doctrine on which State action may be struck down as being
violative of the rule of law contained in Article 14. In a
significant passage, Bhagwati, J., in E.P. Royappa v. State of
T.N. stated: (SCC p. 38, para 85)
― 85 . The last two grounds of challenge may be taken up
together for consideration. Though we have formulated the third
ground of challenge as a distinct and separate ground, it is really
in substance and effect merely an aspect of the second ground
based on violation of Articles 14 and 16. Article 16 embodies
the fundamental guarantee that there shall be equality of
opportunity for all citizens in matters relating to employment or
appointment to any office under the State. Though enacted as a
distinct and independent fundamental right because of its great
importance as a principle ensuring equality of opportunity in
public employment which is so vital to the building up of the
new classless egalitarian society envisaged in the Constitution,
Article 16 is only an instance of the application of the concept of
equality enshrined in Article 14. In other words, Article 14 is the
genus while Article 16 is a species. Article 16 gives effect to the
doctrine of equality in all matters relating to public employment.
The basic principle which, therefore, informs both Articles 14
and 16 is equality and inhibition against discrimination. Now,
what is the content and reach of this great equalising principle?
It is a founding faith, to use the words of Bose, J., ―a way of
life‖, and it must not be subjected to a narrow pedantic or
lexicographic approach. We cannot countenance any attempt to
truncate its all-embracing scope and meaning, for to do so would
be to violate its activist magnitude. Equality is a dynamic
concept with many aspects and dimensions and it cannot be
―cribbed, cabined and confined‖ within traditional and
doctrinaire limits. From a positivistic point of view, equality is
antithetic to arbitrariness. In fact equality and arbitrariness are
sworn enemies; one belongs to the rule of law in a republic
while the other, to the whim and caprice of an absolute
monarch. Where an act is arbitrary, it is implicit in it that it is
unequal both according to political logic and constitutional law
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and is therefore violative of Article 14 , and if it effects any
matter relating to public employment, it is also violative of
Article 16. Articles 14 and 16 strike at arbitrariness in State
action and ensure fairness and equality of treatment. They
require that State action must be based on valid relevant
principles applicable alike to all similarly situate and it must not
be guided by any extraneous or irrelevant considerations
because that would be denial of equality. Where the operative
reason for State action, as distinguished from motive inducing
from the antechamber of the mind, is not legitimate and relevant
but is extraneous and outside the area of permissible
considerations, it would amount to mala fide exercise of power
and that is hit by Articles 14 and 16. Mala fide exercise of
power and arbitrariness are different lethal radiations emanating
from the same vice: in fact the latter comprehends the former.
Both are inhibited by Articles 14 and 16.‖
(emphasis supplied)
68. This was further fleshed out in Maneka Gandhi v. Union of
India , where, after stating that various fundamental rights must
be read together and must overlap and fertilise each other,
Bhagwati, J., further amplified this doctrine as follows: (SCC
pp. 283-84, para 7)
― The nature and requirement of the procedure under Article 21
7 . Now, the question immediately arises as to what is the
requirement of Article 14: what is the content and reach of the
great equalising principle enunciated in this article? There can
be no doubt that it is a founding faith of the Constitution. It is
indeed the pillar on which rests securely the foundation of our
democratic republic. And, therefore, it must not be subjected to
a narrow, pedantic or lexicographic approach. No attempt
should be made to truncate its all-embracing scope and meaning,
for to do so would be to violate its activist magnitude. Equality
is a dynamic concept with many aspects and dimensions and it
cannot be imprisoned within traditional and doctrinaire limits.
We must reiterate here what was pointed out by the majority in
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E.P. Royappa v. State of T.N. , namely, that: (SCC p. 38, para
85)
‗ 85 . … From a positivistic point of view, equality is antithetic to
arbitrariness. In fact equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic, while the
other, to the whim and caprice of an absolute monarch. Where
an act is arbitrary, it is implicit in it that it is unequal both
according to political logic and constitutional law and is
therefore violative of Article 14….‘
Article 14 strikes at arbitrariness in State action and ensures
fairness and equality of treatment. The principle of
reasonableness, which legally as well as philosophically, is an
essential element of equality or non-arbitrariness pervades
Article 14 like a brooding omnipresence and the procedure
contemplated by Article 21 must answer the test of
reasonableness in order to be in conformity with Article 14 . It
must be ―right and just and fair‖ and not arbitrary, fanciful or
oppressive; otherwise, it would be no procedure at all and the
requirement of Article 21 would not be satisfied.‖
(emphasis supplied)
69. This was further clarified in A.L. Kalra v. Project and
Equipment Corpn. , following Royappa and holding that
arbitrariness is a doctrine distinct from discrimination. It was
held: ( A.L. Kalra case , SCC p. 328, para 19)
― 19 . … It thus appears well settled that Article 14 strikes at
arbitrariness in executive/administrative action because any
action that is arbitrary must necessarily involve the negation of
equality. One need not confine the denial of equality to a
comparative evaluation between two persons to arrive at a
conclusion of discriminatory treatment. An action per se
arbitrary itself denies equal of (sic) protection by law. The
Constitution Bench pertinently observed in Ajay Hasia case and
put the matter beyond controversy when it said: (SCC p. 741,
para 16)
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‗ 16 . … Wherever therefore, there is arbitrariness in State action
whether it be of the legislature or of the executive or of an
―authority‖ under Article 12, Article 14 immediately springs
into action and strikes down such State action.‘
This view was further elaborated and affirmed in D.S. Nakara v.
Union of India . In Maneka Gandhi v. Union of India it was
observed that Article 14 strikes at arbitrariness in State action
and ensures fairness and equality of treatment. It is thus too late
in the day to contend that an executive action shown to be
arbitrary is not either judicially reviewable or within the reach of
Article 14.‖
The same view was reiterated in Babita Prasad v. State of
Bihar , SCC at p. 285, para 31.
70. That the arbitrariness doctrine contained in Article 14 would
apply to negate legislation, subordinate legislation and executive
action is clear from a celebrated passage in Ajay Hasia v. Khalid
Mujib Sehravardi : (SCC pp. 740-41, para 16)
― 16 . … The true scope and ambit of Article 14 has been the
subject-matter of numerous decisions and it is not necessary to
make any detailed reference to them. It is sufficient to state that
the content and reach of Article 14 must not be confused with
the doctrine of classification. Unfortunately, in the early stages
of the evolution of our constitutional law, Article 14 came to be
identified with the doctrine of classification because the view
taken was that that article forbids discrimination and there
would be no discrimination where the classification making the
differentia fulfils two conditions, namely, ( i ) that the
classification is founded on an intelligible differentia which
distinguishes persons or things that are grouped together from
others left out of the group; and ( ii ) that that differentia has a
rational relation to the object sought to be achieved by the
impugned legislative or executive action. It was for the first time
48
in E.P. Royappa v. State of T.N. that this Court laid bare a
new dimension of Article 14 and pointed out that that article has
highly activist magnitude and it embodies a guarantee against
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arbitrariness. This Court speaking through one of us (Bhagwati,
J.) said: (SCC p. 38, para 85)
‗ 85 . … The basic principle which, therefore, informs both
Articles 14 and 16 is equality and inhibition against
discrimination. Now, what is the content and reach of this great
equalising principle? It is a founding faith, to use the words of
Bose, J., ―a way of life‖, and it must not be subjected to a
narrow pedantic or lexicographic approach. We cannot
countenance any attempt to truncate its all-embracing scope and
meaning, for to do so would be to violate its activist magnitude.
Equality is a dynamic concept with many aspects and
dimensions and it cannot be ―cribbed, cabined and confined‖
within traditional and doctrinaire limits. From a positivistic
point of view, equality is antithetic to arbitrariness. In fact,
equality and arbitrariness are sworn enemies; one belongs to the
rule of law in a republic while the other, to the whim and caprice
of an absolute monarch. Where an act is arbitrary, it is implicit
in it that it is unequal both according to political logic and
constitutional law and is therefore violative of Article 14, and if
it effects any matter relating to public employment, it is also
violative of Article 16. Articles 14 and 16 strike at arbitrariness
in State action and ensure fairness and equality of treatment.‘
This vital and dynamic aspect which was till then lying latent
and submerged in the few simple but pregnant words of Article
14 was explored and brought to light in Royappa case and it was
reaffirmed and elaborated by this Court in Maneka Gandhi v.
Union of India where this Court again speaking through one of
us (Bhagwati, J.) observed: (SCC pp. 283-84, para 7)
‗ 7 . Now the question immediately arises as to what is the
requirement of Article 14: what is the content and reach of the
great equalising principle enunciated in this article? There can
be no doubt that it is a founding faith of the Constitution. It is
indeed the pillar on which rests securely the foundation of our
democratic republic. And, therefore, it must not be subjected to
a narrow, pedantic or lexicographic approach. No attempt
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should be made to truncate its all-embracing scope and meaning,
for to do so would be to violate its activist magnitude. Equality
is a dynamic concept with many aspects and dimensions and it
cannot be imprisoned within traditional and doctrinaire limits.
… Article 14 strikes at arbitrariness in State action and ensures
fairness and equality of treatment. The principle of
reasonableness, which legally as well as philosophically, is an
essential element of equality or non-arbitrariness pervades
Article 14 like a brooding omnipresence….‘
This was again reiterated by this Court in International Airport
Authority case , SCR at p. 1042 (SCC p. 511) of the Report. It
must therefore now be taken to be well settled that what Article
14 strikes at is arbitrariness because any action that is arbitrary,
must necessarily involve negation of equality. The doctrine of
classification which is evolved by the courts is not paraphrase of
Article 14 nor is it the objective and end of that article. It is
merely a judicial formula for determining whether the legislative
or executive action in question is arbitrary and therefore
constituting denial of equality. If the classification is not
reasonable and does not satisfy the two conditions referred to
above, the impugned legislative or executive action would
plainly be arbitrary and the guarantee of equality under Article
14 would be breached. Wherever therefore there is arbitrariness
in State action whether it be of the legislature or of the executive
or of an “authority” under Article 12, Article 14 immediately
springs into action and strikes down such State action. In fact,
the concept of reasonableness and non-arbitrariness pervades
the entire constitutional scheme and is a golden thread which
runs through the whole of the fabric of the Constitution .‖
(emphasis supplied)
71. In this view of the law, a three-Judge Bench of this Court in
K.R. Lakshmanan v. State of T.N. struck down a 1986 Tamil
Nadu Act on the ground that it was arbitrary and, therefore,
violative of Article 14. Two separate arguments were addressed
under Article 14. One was that the Act in question was
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discriminatory and, therefore, violative of Article 14. The other
was that in any case the Act was arbitrary and for that reason
would also violate a separate facet of Article 14. This is clear
from para 45 of the said judgment. The judgment went on to
accept both these arguments. Insofar as the discrimination aspect
is concerned, this Court struck down the 1986 Act on the ground
that it was discriminatory in paras 46 and 47. Paras 48 to 50 are
important, in that this Court struck down the 1986 Act for being
arbitrary, separately, as follows: (SCC pp. 256-57)
― 48 . We see considerable force in the contention of Mr
Parasaran that the acquisition and transfer of the undertaking of
the Club is arbitrary. The two Acts were amended by the 1949
Act and the definition of ―gaming‖ was amended. The object of
the amendment was to include horse-racing in the definition of
―gaming‖. The provisions of the 1949 Act were, however, not
enforced till the 1974 Act was enacted and enforced with effect
from 31-3-1975. The 1974 Act was enacted with a view to
provide for the abolition of wagering or betting on horse-races
in the State of Tamil Nadu. It is thus obvious that the consistent
policy of the State Government, as projected through various
legislations from 1949 onwards, has been to declare horse-
racing as gambling and as such prohibited under the two Acts.
The operation of the 1974 Act was stayed by this Court and as a
consequence the horse-races are continuing under the orders of
this Court. The policy of the State Government as projected in
all the enactments on the subject prior to 1986 shows that the
State Government considered horse-racing as gambling and as
such prohibited under the law. The 1986 Act on the other hand
declares horse-racing as a public purpose and in the interest of
the general public. There is apparent contradiction in the two
stands. We do not agree with the contention of Mr Parasaran
that the 1986 Act is a colourable piece of legislation, but at the
same time we are of the view that no public purpose is being
served by acquisition and transfer of the undertaking of the Club
by the Government. We fail to understand how the State
Government can acquire and take over the functioning of the
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race-club when it has already enacted the 1974 Act with the
avowed object of declaring horse-racing as gambling? Having
enacted a law to abolish betting on horse-racing and stoutly
defending the same before this Court in the name of public good
and public morality, it is not open to the State Government to
acquire the undertaking of horse-racing again in the name of
public good and public purpose. It is ex facie irrational to
invoke “public good and public purpose” for declaring horse-
racing as gambling and as such prohibited under law, and at the
same time speak of “public purpose and public good” for
acquiring the race-club and conducting the horse-racing by the
Government itself. Arbitrariness is writ large on the face of the
provisions of the 1986 Act .
49 . We, therefore, hold that the provisions of the 1986 Act are
discriminatory and arbitrary and as such violate and infract the
right to equality enshrined under Article 14 of the Constitution.
50 . Since we have struck down the 1986 Act on the ground that
it violates Article 14 of the Constitution, it is not necessary for
us to go into the question of its validity on the ground of Article
19 of the Constitution.‖
(emphasis supplied)
72. Close upon the heels of this judgment, a discordant note was
struck in State of A.P. v. McDowell & Co. Another three-Judge
Bench, in repelling an argument based on the arbitrariness facet
of Article 14, held: (SCC pp. 737-39, para 43)
― 43 . Shri Rohinton Nariman submitted that inasmuch as a large
number of persons falling within the exempted categories are
allowed to consume intoxicating liquors in the State of Andhra
Pradesh, the total prohibition of manufacture and production of
these liquors is ―arbitrary‖ and the amending Act is liable to be
struck down on this ground alone. Support for this proposition is
sought from a judgment of this Court in State of T.N. v. Ananthi
Ammal . Before, however, we refer to the holding in the said
decision, it would be appropriate to remind ourselves of certain
basic propositions in this behalf. In the United Kingdom,
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Parliament is supreme. There are no limitations upon the power
of Parliament. No court in the United Kingdom can strike down
an Act made by Parliament on any ground. As against this, the
United States of America has a Federal Constitution where the
power of the Congress and the State Legislatures to make laws
is limited in two ways viz. the division of legislative powers
between the States and the Federal Government and the
fundamental rights (Bill of Rights) incorporated in the
Constitution. In India, the position is similar to the United States
of America. The power of Parliament or for that matter, the
State Legislatures is restricted in two ways. A law made by
Parliament or the legislature can be struck down by courts on
two grounds and two grounds alone viz. (1) lack of legislative
competence, and (2) violation of any of the fundamental rights
guaranteed in Part III of the Constitution or of any other
constitutional provision. There is no third ground. We do not
wish to enter into a discussion of the concepts of procedural
unreasonableness and substantive unreasonableness—concepts
inspired by the decisions of the United States Supreme Court.
Even in USA, these concepts and in particular the concept of
substantive due process have proved to be of unending
controversy, the latest thinking tending towards a severe
curtailment of this ground (substantive due process). The main
criticism against the ground of substantive due process being
that it seeks to set up the courts as arbiters of the wisdom of the
legislature in enacting the particular piece of legislation. It is
enough for us to say that by whatever name it is characterised,
the ground of invalidation must fall within the four corners of
the two grounds mentioned above. In other words, say, if an
enactment is challenged as violative of Article 14, it can be
struck down only if it is found that it is violative of the equality
clause/equal protection clause enshrined therein. Similarly, if an
enactment is challenged as violative of any of the fundamental
rights guaranteed by sub-clauses ( a ) to ( g ) of Article 19(1), it
can be struck down only if it is found not saved by any of
clauses (2) to (6) of Article 19 and so on. No enactment can be
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struck down by just saying that it is arbitrary or unreasonable.
Some or other constitutional infirmity has to be found before
invalidating an Act. An enactment cannot be struck down on the
ground that court thinks it unjustified. Parliament and the
legislatures, composed as they are of the representatives of the
people, are supposed to know and be aware of the needs of the
people and what is good and bad for them. The court cannot sit
in judgment over their wisdom. In this connection, it should be
remembered that even in the case of administrative action, the
scope of judicial review is limited to three grounds viz. ( i )
unreasonableness, which can more appropriately be called
irrationality, ( ii ) illegality and ( iii ) procedural impropriety (see
Council of Civil Service Unions v. Minister for Civil Service
which decision has been accepted by this Court as well). The
applicability of doctrine of proportionality even in
administrative law sphere is yet a debatable issue. (See the
opinions of Lords Lowry and Ackner in R. v. Secy. of State for
Home Deptt., ex p Brind , AC at pp. 766-67 and 762.) It would
be rather odd if an enactment were to be struck down by
applying the said principle when its applicability even in
administrative law sphere is not fully and finally settled. It is
one thing to say that a restriction imposed upon a fundamental
right can be struck down if it is disproportionate, excessive or
unreasonable and quite another thing to say that the court can
strike down enactment if it thinks it unreasonable, unnecessary
or unwarranted.‖
73. This judgment in McDowell & Co. case failed to notice at
least two binding precedents, first, the judgment of a
Constitution Bench in Ajay Hasia and second, the judgment of a
coordinate three-Judge Bench in Lakshmanan . Apart from this,
the reasoning contained as to why arbitrariness cannot be used
to strike down legislation as opposed to both executive action
and subordinate legislation was as follows.
74. According to the Bench in McDowell , substantive due
process is not something accepted by either the American courts
or our courts and, therefore, this being a reiteration of
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substantive due process being read into Article 14 cannot be
applied. A Constitution Bench in Mohd. Arif v. Supreme Court
of India has held, following the celebrated Maneka Gandhi , as
follows: ( Mohd. Arif case , SCC pp. 755-56, para 27-28)
― 27 . The stage was now set for the judgment in Maneka Gandhi .
Several judgments were delivered, and the upshot of all of them
was that Article 21 was to be read along with other fundamental
rights, and so read not only has the procedure established by law
to be just, fair and reasonable, but also the law itself has to be
reasonable as Articles 14 and 19 have now to be read into
Article 21. [ See at SCR pp. 646-48 : SCC pp. 393-95, paras 198-
204 per Beg, C.J., at SCR pp. 669, 671-74 & 687 : SCC pp. 279-
84 & 296-97, paras 5-7 & 18 per Bhagwati, J. and at SCR pp.
720-23 : SCC pp. 335-39, paras 74-85 per Krishna Iyer, J.].
Krishna Iyer, J. set out the new doctrine with remarkable clarity
thus: (SCR p. 723: SCC pp. 338-39, para 85)
‗ 85 . To sum up, ―procedure‖ in Article 21 means fair, not formal
procedure. ―Law‖ is reasonable law, not any enacted piece. As
Article 22 specifically spells out the procedural safeguards for
preventive and punitive detention, a law providing for such
detentions should conform to Article 22. It has been rightly
pointed out that for other rights forming part of personal liberty,
the procedural safeguards enshrined in Article 21 are available.
Otherwise, as the procedural safeguards contained in Article 22
will be available only in cases of preventive and punitive
detention, the right to life, more fundamental than any other
forming part of personal liberty and paramount to the happiness,
dignity and worth of the individual, will not be entitled to any
procedural safeguard save such as a legislature‘s mood chooses.‘
28 . Close on the heels of Maneka Gandhi case came Mithu v.
State of Punjab , in which case the Court noted as follows: (SCC
pp. 283-84, para 6)
‗ 6 . … In Sunil Batra v. Delhi Admn. while dealing with the
question as to whether a person awaiting death sentence can be
kept in solitary confinement, Krishna Iyer, J. said that though
our Constitution did not have a ―due process‖ clause as in the
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American Constitution; the same consequence ensued after the
decisions in Bank Nationalisation case and Maneka Gandhi
case .…
In Bachan Singh which upheld the constitutional validity of the
death penalty, Sarkaria J., speaking for the majority, said that if
Article 21 is understood in accordance with the interpretation
put upon it in Maneka Gandhi , it will read to say that: (SCC p.
730, para 136)
― 136 . ‗No person shall be deprived of his life or personal liberty
except according to fair, just and reasonable procedure
established by valid law.‘ ‖ ‘
The wheel has turned full circle. Substantive due process is now
to be applied to the fundamental right to life and liberty.‖
75. Clearly, therefore, the three-Judge Bench in McDowell case
has not noticed Maneka Gandhi cited in Mohd. Arif to show that
the wheel has turned full circle and substantive due process is
part of Article 21 as it is to be read with Articles 14 and 19.

26. The Supreme Court in the case of D.S. Nakara v. Union of India,
reported in (1983) 1 SCC 305 has held as under :
12. After an exhaustive review of almost all decisions bearing
on the question of Article 14, this Court speaking through
Chandrachud, C.J. in In re Special Courts Bill , 1978 restated the
settled propositions which emerged from the judgments of this
Court undoubtedly insofar as they were relevant to the decision
on the points arising for consideration in that matter. Four of
them are apt and relevant for the present purpose and may be
extracted. They are: (SCC pp. 424-25, para 72)
*
(3)The constitutional command to the State to afford equal
protection of its laws sets a goal not attainable by the invention
and application of a precise formula. Therefore, classification
need not be constituted by an exact or scientific exclusion or
inclusion of persons or things. The courts should not insist on
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delusive exactness or apply doctrinaire tests for determining the
validity of classification in any given case. Classification is
justified if it is not palpably arbitrary.
(4)The principle underlying the guarantee of Article 14 is not
that the same rules of law should be applicable to all persons
within the Indian territory or that the same remedies should be
made available to them irrespective of differences of
circumstances. It only means that all persons similarly
circumstanced shall be treated alike both in privileges conferred
and liabilities imposed. Equal laws would have to be applied to
all in the same situation, and there should be no discrimination
between one person and another if as regards the subject-matter
of the legislation their position is substantially the same.
*
(6)The law can make and set apart the classes according to the
needs and exigencies of the society and as suggested by
experience. It can recognise even degree of evil, but the
classification should never be arbitrary, artificial or evasive.
(7) The classification must not be arbitrary but must be rational,
that is to say, it must not only be based on some qualities or
characteristics which are to be found in all the persons grouped
together and not in others who are left out but those qualities or
characteristics must have a reasonable relation to the object of
the legislation. In order to pass the test, two conditions must be
fulfilled, namely, (1) that the classification must be founded on
an intelligible differentia which distinguishes those that are
grouped together from others and (2) that that differentia must
have a rational relation to the object sought to be achieved by
the Act.
*
13. The other facet of Article 14 which must be remembered is
that it eschews arbitrariness in any form. Article 14 has,
therefore, not to be held identical with the doctrine of
1
classification. As was noticed in Maneka Gandhi case in the
earliest stages of evolution of the constitutional law, Article 14
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came to be identified with the doctrine of classification because
the view taken was that Article 14 forbids discrimination and
there will be no discrimination where the classification making
the differentia fulfils the aforementioned two conditions.
However, in E.P. Royappa v. State of T.N . it was held that the
basic principle which informs both Article 14 and 16 is equality
and inhibition against discrimination. This Court further
observed as under: (SCC p. 38, para 85)
―From a positivistic point of view, equality is antithetic to
arbitrariness. In fact equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic while the
other, to the whim and caprice of an absolute monarch. Where
an act is arbitrary, it is implicit in it that it is unequal both
according to political logic and constitutional law and is
therefore violative of Article 14, and if it affects any matter
relating to public employment, it is also violative of Article 16.
Articles 14 and 16 strike at arbitrariness in State action and
ensure fairness and equality of treatment.‖
14. Justice Iyer has in his inimitable style dissected Article 14 in

Maneka Gandhi case as under at SCR p. 728: (SCC p. 342, para
94)
―That article has a pervasive processual potency and versatile
quality, egalitarian in its soul and allergic to discriminatory
diktats. Equality is the antithesis of arbitrariness and ex cathedra
ipse dixit is the ally of demagogic authoritarianism. Only
knight-errants of ‗executive excesses‘ — if we may use current
cliche — can fall in love with the Dame of despotism,
legislative or administrative. If this Court gives in here it gives
up the ghost. And so it is that I insist on the dynamics of
limitations on fundamental freedoms as implying the rule of
law: Be you ever so high, the law is above you.‖
Affirming and explaining this view, the Constitution Bench in

Ajay Hasia v. Khalid Mujib Sehravardi held that it must,
therefore, now be taken to be well settled that what Article 14
strikes at is arbitrariness because any action that is arbitrary
must necessarily involve negation of equality. The Court made it
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explicit that where an act is arbitrary it is implicit in it that it is
unequal both according to political logic and constitutional law
and is, therefore, violative of Article 14. After a review of large
number of decisions bearing on the subject, in Air India v.
Nergesh Meerza the Court formulated propositions emerging
from an analysis and examination of earlier decisions. One such
proposition held well established is that Article 14 is certainly
attracted where equals are treated differently without any
reasonable basis.
15. Thus the fundamental principle is that Article 14 forbids
class legislation but permits reasonable classification for the
purpose of legislation which classification must satisfy the twin
tests of classification being founded on an intelligible differentia
which distinguishes persons or things that are grouped together
from those that are left out of the group and that differentia must
have a rational nexus to the object sought to be achieved by the
statute in question.

Whether amendment of 2002 has created an additional class within
class ; if yes, then whether it can be said to be an intelligible
differentia having reasonable nexus with object sought to be
achieved?
27. CrPC clerk/Asstt. Grade III are class III posts and as per Rules,
1998, these two posts are feeder post for promotion to Asstt. Grade II,
which is again a Class III post. Similarly, APCD Grade III is a Class III
post and is a feeder post for promotion to the post of PCD which too is a
Class III post. At the cost of repetition, there is no amendment in Rules
1998 and even today, the post of CrPC Clerk/Asstt. Grade III posts are
feeder post for promotion to the post of Asstt. Grade II and post of APCD
Grade III is a feeder post for promotion to PCD.
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28. However, by amendment brought in the year 2002, a new category
of CrPC clerk/Asstt. Grade III/APCD Grade III has been created i.e., those
who are holding LL.B. or equivalent degrees from recognized University
by separating them from those who holding other degrees.
29. In view of amendment of 2002, the CrPC clerk/Asstt. Grade
III/APCD Grade III holding LL.B. degree would be entitled for their
consideration for promotion to the post of ADPO which is class II post and
persons who are not holding LL.B. or equivalent post will be eligible for
promotion to another Class III post only i.e., either Asstt. Grade II or PCD
as the case may be.
30. There may be another instance i.e., if 6 persons holding LL.B. or
equivalent degree are working as CrPC clerk/Asstt. Grade III/APCD
Grade III but only 4 posts of ADPO are available, then only 4 out of 6
would be considered for promotion to the post of ADPO which is a class II
post and other 2 persons holding the same qualification will get promotion
to another class III post i.e., either Asstt. Grade II or PCD.
31. It is true that fundamental rights are not absolute rights and are
subject to reasonable classification which should pass the test of
intelligible differentia and reasonable nexus with object sought to be
achieved.
32. When Shri Ankur Mody, Additional Advocate General was directed
to satisfy the aforesaid distinction, then it was submitted by Counsel for
State that the initial burden to prove that the provision is bad in law and is
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not based on intelligible differentia having no reasonable nexus with
object sought to be achieved is on the Petitioner. This submission made
by Counsel for the State cannot be accepted for the reason that distinction
drawn by the State between CrPC clerk/Asstt. Grade III/APCD Grade III
holding LL.B or equivalent degree prima facie appears to be without any
due application of mind. Since, the State did not come forward with the
object sought to be achieved by it, therefore, this Court was unable to
consider as to whether there was any reasonable nexus with object sought
to be achieved or not?
33. It was fairly conceded by Shri Mody that the State in its return has
not pointed the reasons and objects behind bringing the amendment in
Schedule II and Schedule IV of Rules 1991.
34. How the State can treat CrPC clerks/Asstt. Grade III/APCD Grade
III holding LL.B. degree or equivalent degree differently from CrPC
clerks/Asstt. Grade III/APCD Grade III holding LL.B. degree or
equivalent degree not holding LL.B. or equivalent degree has not been
explained, specifically when the minimum qualification for appointment to
the post of CrPC clerk/Asstt. Grade III/APCD Grade III is the same.
35. By introducing amendment in Schedule II and IV of Rules, 1991,
the State has provided two promotional channels i.e., one directly to class
II post and another to class III post. Accordingly, Shri Ankur Mody was
directed to explain the aforesaid anomaly and reasonable nexus with
object sought to be achieved. Except by submitting that in fact the State
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wanted to provide another and separate promotional avenue to the persons
holding the post of CrPC clerks/Asstt. Grade III/APCD Grade III with
LL.B. degree or equivalent degree, nothing else was explained.
36. At the cost of repetition, it is once again clarified that nothing has
been placed by the State to suggest as to what prompted the State to
introduce such separate promotional channel directly to the post of ADPO
which is a Grade II post?
37. Since, there is a presumption regarding constitutionality of an
enactment or Rule, therefore, whether the State has pointed out intelligible
differentia or reasonable nexus with object sought to be achieved or not,
cannot be a sole criteria to declare the provision unconstitutional or ultra
vires.
Thus, it would be appropriate for this Court to consider the duties of
Public Prosecutors and CrPC clerks/Asstt. Grade III/APCD Grade III and
whether two different promotional channels can be provided for same
feeder post or not, if yes, then whether amendment in Rule 1991 would
satisfy the requirement without there being any amendment in Rules,
1998?
38. The Supreme Court in the case of State of Punjab v. Brijeshwar
Singh Chahal, reported in (2016) 6 SCC 1 has held as under :
28. In Shrilekha Vidyarthi v. State of U.P. , which happens to be
the first of these decisions, this Court had an occasion to
examine whether Government Counsel in the districts are
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holders of an ― office or post ‖ or such appointments are no more
than professional engagements like the one between a private
client and his lawyer. That case arose out of a challenge
mounted by Government Counsel who were engaged throughout
the State of Uttar Pradesh to handle civil, revenue or criminal
cases and whose services were en masse terminated by the State
only to be replaced by fresh appointments on the basis of a new
panel prepared for that purpose and communicated to the
District Magistrates concerned. On behalf of the State, it was
argued that the engagement of Government Counsel was
nothing but a professional engagement between a client and his
lawyer with no public element attached to it.
29. Rejecting that contention, this Court held that the
appointment of the District Government Counsel by the State
Government was not merely a professional engagement but had
a public element attached to it. This Court noted that
Government Counsel were paid remuneration out of the public
exchequer and that having regard to Sections 24, 25 and 321 of
the Code of Criminal Procedure, the Public Prosecutors were
entrusted the responsibility of acting only in the interest of
administration of justice. In the case of Public Prosecutors,
declared this Court, the additional public element flowing from
the statutory provisions in the Code of Criminal Procedure,
clothed the Public Prosecutors with the attribute of the holders
of a public office which cannot be whittled down by the
assertion that their engagement is purely professional between a
client and his lawyer with no public element attached to it. This
was according to this Court, sufficient to attract Article 14 and
bring the question of validity of the impugned circular within
the scope of judicial review.
30. The decision in Shrilekha case is noteworthy for the
additional reason that the same held judicial review of State
action permissible even when the engagement of the
Government Counsel may be contractual in nature. This Court
observed: (SCC p. 237, para 24)
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― 24 . The State cannot be attributed the split personality of Dr
Jekyll and Mr Hyde in the contractual field so as to impress on it
all the characteristics of the State at the threshold while making
a contract requiring it to fulfil the obligation of Article 14 of the
Constitution and thereafter permitting it to cast off its garb of
State to adorn the new robe of a private body during the
subsistence of the contract enabling it to act arbitrarily subject
only to the contractual obligations and remedies flowing from it.
It is really the nature of its personality as State which is
significant and must characterise all its actions, in whatever
field, and not the nature of function, contractual or otherwise,
which is decisive of the nature of scrutiny permitted for
examining the validity of its act. The requirement of Article 14
being the duty to act fairly, justly and reasonably, there is
nothing which militates against the concept of requiring the
State always to so act, even in contractual matters. There is a
basic difference between the acts of the State which must
invariably be in public interest and those of a private individual,
engaged in similar activities, being primarily for personal gain,
which may or may not promote public interest. Viewed in this
manner, in which we find no conceptual difficulty or
anachronism, we find no reason why the requirement of Article
14 should not extend even in the sphere of contractual matters
for regulating the conduct of the State activity.‖
31. Relying upon the decisions of this Court in Ramana
Dayaram Shetty v. International Airport Authority of India ,
Kasturi Lal Lakshmi Reddy v. State of J&K , Dwarkadas
Marfatia and Sons v. Port of Bombay and Mahabir Auto Stores
v. Indian Oil Corpn. , this Court held that the power of judicial
review and the sweep of Article 14 was wide enough to take
within its fold the impugned circular issued by the State in
exercise of its executive powers irrespective of the precise
nature of appointment of the Government Counsel in the
districts or the rights, contractual or statutory, which the
appointees may have. This Court reiterated the well-settled
principle that State action can survive only if it does not suffer
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from the vice of arbitrariness which is the very essence of
Article 14 of the Constitution and Rule of Law. This Court
observed: ( Shrilekha case , SCC p. 243, para 35)
― 35 . It is now too well settled that every State action, in order to
survive, must not be susceptible to the vice of arbitrariness
which is the crux of Article 14 of the Constitution and basic to
the rule of law, the system which governs us. Arbitrariness is the
very negation of the rule of law. Satisfaction of this basic test in
every State action is sine qua non to its validity and in this
respect, the State cannot claim comparison with a private
individual even in the field of contract. This distinction between
the State and a private individual in the field of contract has to
be borne in the mind.‖
32. Applying the above principle to the circular under challenge,
this Court held that arbitrariness was writ large on the same as it
gave an impression as if the State action was taken under a
mistaken belief of applicability of ―spoils system‖ under our
Constitution. This Court held that even though in the case of
State, public interest should be the guiding consideration while
considering the suitability of the appointees yet the impugned
State action appeared to have been taken with the sole object of
terminating all existing appointments irrespective of the
subsistence or expiry of the tenure or the suitability of the
incumbents. The following passage from the judgment sums up
the trend of the judicial pronouncements which increasingly
favour State activity even in contractual matter being brought
within the purview of judicial review: ( Shrilekha case , SCC p.
248, para 48)
― 48 . In our view, bringing the State activity in contractual
matters also within the purview of judicial review is inevitable
and is a logical corollary to the stage already reached in the
decisions of this Court so far. Having fortunately reached this
point, we should not now turn back or take a turn in a different
direction or merely stop there. In our opinion, two recent
decisions in Dwarkadas Marfatia and Sons and Mahabir Auto
Stores also lead in the same direction without saying so in clear
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terms. This appears to be also the trend of the recent English
decisions. It is in consonance with our commitment to openness
which implies scrutiny of every State action to provide an
effective check against arbitrariness and abuse of power. We
would much rather be wrong in saying so rather than be wrong
in not saying so. Non-arbitrariness, being a necessary
concomitant of the rule of law, it is imperative that all actions of
every public functionary, in whatever sphere, must be guided by
reason and not humour, whim, caprice or personal predilections
of the persons entrusted with the task on behalf of the State and
exercise of all power must be for public good instead of being
an abuse of the power .‖
(emphasis supplied)
33. In State of U.P. v. U.P. State Law Officers’ Assn. also Law
Officers were removed by the State Government, aggrieved
whereof, the affected officers approached the High Court
contending, inter alia, that their removal was against the
principles of natural justice and that they could be removed from
their offices only for valid reasons. The High Court agreed with
that contention, allowed the petition and quashed the orders of
removal. The State assailed that order before this Court in which
this Court examined the issue from three different dimensions
viz. ( i ) the nature of the legal profession ; ( ii ) the interest of
public ; and ( iii ) the modes of appointment and removal .
34. While dealing with the nature of the legal profession , this
Court observed in U.P. State Law Officers’ Assn. case that legal
profession was essentially a service-oriented profession and that
the relationship between the lawyer and his client is one of trust
and confidence. As a responsible officer of the court and an
important adjunct of the administration of justice, the lawyer
also owes a duty to the court as well as to the opposite side. He
has to be fair to ensure that justice is done. He demeans himself
if he acts merely as a mouthpiece of his client. Having said that,
this Court noted the changed profile of the legal profession
because of the expansion of public sector activities necessitating
maintenance of a common panel of lawyers, some of whom are
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in full-time employment of the Government or public
institutions as their Law Officers.
35. On the question of public interest involved in the
appointment of lawyers , this Court in U.P. State Law Officers’
Assn. case unequivocally declared that the Government or the
public body represents public interest and whoever is in charge
of running their affairs is no more than a trustee or a custodian
of public interest. Protection of public interests in the best
possible manner is their primary duty. It follows that public
bodies are under an obligation to the society to take the best
possible steps to safeguard such interests. That obligation in turn
casts on them the duty to engage the most competent servants,
agents, advisers, etc. Even in the matter of selection of lawyers,
those who are running the Government or the public bodies are
under an obligation to make earnest efforts to select the best
from the available lot. This is more so because the claims made
by and/or against the public bodies are monetarily substantial
and socially crucial with far-reaching consequences.
36. This Court while dealing with the third dimension touching
the mode of appointment of lawyers declared that in conformity
with the obligation cast upon them those handling the affairs of
the State are duty-bound to select the most meritorious,
whatever the method adopted for such selection and
appointment may be. It must be shown that a search for the
meritorious was undertaken and that appointments were made
only on the basis of the merit and not for any other
consideration. The following passage is in this regard apposite:
( U.P. State Law Officers’ case , SCC p. 217, para 18)
― 18 . The mode of appointment of lawyers for the public bodies,
therefore, has to be in conformity with the obligation cast on
them to select the most meritorious. An open invitation to the
lawyers to compete for the posts is by far the best mode of such
selection. But sometimes the best may not compete or a
competent candidate may not be available from among the
competitors. In such circumstances, the public bodies may resort
to other methods such as inviting and appointing the best
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available, although he may not have applied for the post.
Whatever the method adopted, it must be shown that the search
for the meritorious was undertaken and the appointments were
made only on the basis of the merit and not for any other
consideration .‖
(emphasis supplied)
37. In State of U.P. v. Johri Mal a three-Judge Bench of this
Court had an occasion to deal with somewhat similar question
that arose once again in relation to appointment of the
government lawyers in the State of U.P. This Court reviewed the
decisions earlier delivered and ruled that public interest would
be safeguarded only when good and competent counsel are
appointed by the State. No such appointments should, declared
this Court, be made for pursuing a political purpose or for giving
some undue advantage to any particular section. The State
should replace an efficient, honest and competent lawyer only
when it is in a position to appoint a more competent lawyer in
his place, observed this Court. The following passage is apposite
in this regard: (SCC p. 736, para 44)
― 44 . Only when good and competent counsel are appointed by
the State, the public interest would be safeguarded. The State
while appointing the Public Prosecutors must bear in mind that
for the purpose of upholding the rule of law, good
administration of justice is imperative which in turn would have
a direct impact on sustenance of democracy. No appointment of
Public Prosecutors or District Counsel should, thus, be made
either for pursuing a political purpose or for giving some undue
advantage to a section of the people. Retention of its counsel by
the State must be weighed on the scale of public interest. The
State should replace an efficient, honest and competent lawyer,
inter alia, when it is in a position to appoint a more competent
lawyer . In such an event, even a good performance by a lawyer
may not be of much importance.‖
(emphasis supplied)
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38. While dealing with the nature of office the Government
Counsel hold, this Court in Johri Mal case declared that the
State Government Counsel holds an office of great importance.
They are not only officers of the court but also the
representatives of the State and that courts repose a great deal of
confidence in them. They are supposed to render independent,
fearless and non-partisan views before the court irrespective of
the result of litigation which may ensue. So also the Public
Prosecutors have great responsibility. They are required to
perform statutory duties independently having regard to various
provisions contained in the Code of Criminal Procedure. The
State Government Counsel represents the State and thereby the
interest of the general public before a court of law. This requires
that Government Counsel have character, competence, sufficient
experience as also standing at the Bar. The need for employing
meritorious and competent persons to maintain the standard of
the high office cannot be minimised, observed the Court,
particularly, when the holders of the post have a public duty to
perform. The Court also expressed anguish over the fact that in
certain cases the recommendations are made by the District
Magistrate having regard to the political affinity of the lawyers
to the party in power and that State is not expected to rescind the
appointments with the change in the Government because a new
party has taken over charge of the Government. This Court also
recognised the age-old tradition of appointing the District
Government Counsel on the basis of the recommendations of the
District Collector in consultation with the District Judge. The
fact that the District Judge, who is consulted while making such
appointment knows the merit, competence and capability of the
lawyer concerned, was also recognised by the Court.

39. The Supreme Court in the case of State of U.P. v. Johri Mal,
reported in (2004) 4 SCC 714 has held as under :
74. The District Government Counsel represent the State. They,
thus, represent the interest of the general public before a court of
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law. The Public Prosecutors while presenting the prosecution
case have a duty to see that innocent persons may not be
convicted as well as an accused guilty of commission of crime
does not go unpunished. Maintenance of law and order in the
society and, thus, to some extent maintenance of rule of law
which is the basic fibre for upholding the rule of democracy lies
in their hands. The Government Counsel, thus, must have
character, competence, sufficient experience as also standing at
the Bar. The need for employing meritorious and competent
persons to keep the standard of the high offices cannot be
minimised. The holders of the post have a public duty to
perform. Public element is, thus, involved therein.
75. In the matter of engagement of a District Government
Counsel, however, a concept of public office does not come into
play. However, it is true that in the matter of counsel, the choice
is that of the Government and none can claim a right to be
appointed. That must necessarily be so because it is a position of
great trust and confidence. The provision of Article 14,
however, will be attracted to a limited extent as the functionaries
named in the Code of Criminal Procedure are public
functionaries. They also have a public duty to perform. If the
State fails to discharge its public duty or acts in defiance,
deviation and departure of the principles of law, the court may
interfere. The court may also interfere when the legal policy laid
down by the Government for the purpose of such appointments
is departed from or mandatory provisions of law are not
complied with. Judicial review can also be resorted to, if a
holder of a public office is sought to be removed for reason
dehors the statute.
76. The appointment in such a post must not be a political one.
The Manual states that a political activity by the District
Government Counsel shall be a disqualification to hold the post.

40. The Supreme Court in the case of Mahabir (Supra) has held as
under :
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67. In the case at hand, not only proper contradictions were not
brought on record in the oral evidence of the hostile witnesses,
but even those few that were brought on record, were not proved
through the evidence of the Investigating Officer. Does the State
expect Section 106 of the Evidence Act to come to its aid in
every criminal prosecution. At times, such procedural lapses
may lead to a very serious crime going unpunished. Any crime
committed against an individual is a crime against the entire
society. In such circumstances, neither the public prosecutor nor
the presiding officer of the trial court can afford to remain
remiss or lackadaisical in any manner. Time and again, this
Court has, through its judgments, said that there should not be
any element of political consideration in the matters like
appointment to the post of public prosecutor, etc. The only
consideration for the Government should be the merit of the
person. The person should be not only competent, but he should
also be a man of impeccable character and integrity. He should
be a person who should be able to work independently without
any reservations, dictates or other constraints. The relations
between the Public Prosecution Service and the judiciary are the
very cornerstone of the criminal justice system. The public
prosecutors who are responsible for conducting prosecutions and
may appeal against the court decisions, are one of judges' natural
counterparts in the trial proceedings and also in the broader
context of management of the system of criminal law.
68. A criminal case is built upon the edifice of evidence
(whether it is direct evidence or circumstantial evidence) that is
admissible in law. Free and fair trial is the very foundation of
the criminal jurisprudence. There is a reasonable apprehension
in the mind of the public at large that the criminal trial is neither
free nor fair with the Prosecutor appointed by the State
Government conducting the trial in a manner where frequently
the prosecution witnesses turn hostile.
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69. Over a period of time, we have noticed, while hearing
criminal appeals, that there is practically no effective and
meaningful cross-examination by the Public Prosecutor of a
hostile witness. All that the Public Prosecutor would do is to
confront the hostile witness with his/her police statement
recorded under Section 161 of the Cr. P.C. and contradict
him/her with the same.
The only thing that the Public Prosecutor would do is to bring
the contradictions on record and thereafter prove such
contradictions through the evidence of the Investigating Officer.
This is not sufficient. The object of the cross-examination is to
impeach the accuracy, credibility and general value of the
evidence given in- chief; to sift the facts already stated by the
witness; to detect and expose the discrepancy or to elicit the
suppressed facts which will support the case of the cross-
examining party. What we are trying to convey is that it is the
duty of the Public Prosecutor to cross- examine a hostile witness
in detail and try to elucidate the truth & also establish that the
witness is speaking lie and has deliberately resiled from his
police statement recorded under Section 161 of the Cr. P.C. A
good, seasoned and experienced Public Prosecutor will not only
bring the contradictions on record, but will also cross-examine
the hostile witness at length to establish that he or she had
actually witnessed the incident as narrated in his/her police
statement.‖ (Emphasis supplied)
*
93. Time and again this Court has observed in so many of its
decisions that such appointments be it in the High Court or in
the district judiciary should be only taking into consideration the
merit of the candidate and no other consideration should weigh
in such appointments.
94. Public Prosecutor holds a "Public Office". The primacy
given to him under the Scheme of CrPC has a "special purpose".
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Certain professional, official obligations and privileges are
attached to his office. His office may also be termed as an office
of profit as he remains disqualified to contest the election so
long he holds the office though permanency is attached to the
office and not to the term of his office. His duties are of public
nature. He has an "independent and responsible character". He
holds the public office within the scope of a "quo warranto
proceedings". Prosecutor is not a part of investigating agency
but is an "independent statutory authority". He performs
statutory duties and functions. He holds an office of
responsibility as he has been enclothed with the power to
withdraw the prosecution of a case on the directions of the State
Government.
95. The Criminal law enforcement system investigates crimes
and prosecutes offenders. It must also protect valued rights and
freedoms, and convict only the guilty. The prosecutor must
recognize these different and competing interests. He should
strike a fair balance between the competing interests of
convicting the guilty, protecting citizens' rights and freedoms
and protecting the public from criminals. Prosecutors should
ensure that prosecutions are conducted in a diligent, competent
and fair manner. The importance of the office of the Public
Prosecutor cannot be overemphasized. The Public Prosecutor
must be a person of high merit, fair and objective, because upon
him depends to a large extent the administration of criminal
justice. The office of the Public Prosecutor is a public office and
the incumbent has to discharge statutory duties. The person
appointed as Public Prosecutor must, therefore, be one who is
not only able and efficient, but also enjoys a reputation and
prestige which satisfy his appointment as a Public Prosecutor.
The duty of the prosecutor is to assist the Court in reaching a
proper conclusion in regard to the case which is brought before
it for trial. The prosecutor has to be fair in the presentation of
the prosecution case. He must not suppress or keep back from
the court evidence relevant to the determination of the guilt or
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innocence of the accused. He must present the complete picture,
and not a one sided picture. He must not be partial to the
prosecution or to the accused. He has to be fair to both sides in
the presentation of the case.
96. A Public Prosecutor is not expected to show a thirst to reach
the case in the conviction of the accused somehow or the other
irrespective of the true facts of the case. The expected attitude of
the Public Prosecutor while conducting prosecution must be
couched in fairness not only to the Court to the investigation
agencies but to the accused as well. If an accused is entitled to
any legitimate benefit during trial, the Public Prosecutor should
not scuttle/conceal it. On the contrary, it is the duty of the Public
Prosecutor to winch it to the fore and make it available to the
accused. Even if the court or defence counsel overlooked it, the
Public Prosecutor has the added responsibility to bring it to the
notice of the Court, if it comes to his knowledge.
97. Law Officers are one of the important wheels of the chariot,
driven by the Judges to attain the cherished goal of human being
to secure justice against the wrong doers. The main object of the
State is to curb the crime, investigate and prosecute the
offenders and punish them, with a view to maintain law and
order, amity and harmony, tranquillity and peace. The various
provisions of the CrPC and the Rules provide the manner and
procedure by which the Public Prosecutor should be appointed
and provide assistance to the Courts. The object of the CrPC and
the Rules is to appoint the best among the lawyers as the Public
Prosecutor to provide assistance to the Court. The people have
the vital interest in the matter.
41. The Supreme Court in the case of K.J. John, Asstt. Public
Prosecutor v. State of Kerala , reported in (1990) 4 SCC 191 has held
as under :
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18. The main controversy hinges on the scope of sub-section (6)
of Section 24 and specially the words ―regular cadre of
Prosecuting Officers‖ existing in this provision. Prior to coming
into force of the Code of Criminal Procedure, 1973, the
Prosecuting Officers were under the control of Police
Department. It was not necessary at that time that the Public
Prosecutor or Additional Public Prosecutor should have any
experience as an advocate. In order to remove such
unsatisfactory state of affairs, the legislature made an elaborate
provision under Section 24 for the appointment of Public
Prosecutors and Additional Public Prosecutors in the Criminal
Procedure Code, 1973. Under this provision it was laid down
that practice as an advocate for not less than seven years was
necessary for appointment of Public Prosecutor and Additional
Public Prosecutor. After some time, it was considered by the
legislature that the above provision does not take into
consideration the working experience of Prosecuting Officers
and pleaders for eligibility for appointment as Public Prosecutor
and Additional Public Prosecutor. The legislature as such
substituted a new Section 24 by the Criminal Procedure Code
(Amendment) Act, 1978 brought into force w.e.f December 18,
1978. Under sub-section (9) of this new Section 24 it was
provided that the period during which a person has been in
practice as a Pleader, or has rendered service as a Public
Prosecutor or as an Additional Public Prosecutor or Assistant
Public Prosecutor or other Prosecuting Officer, by whatever
name called, shall be deemed to be the period during which such
person has been in practice as an advocate. This provision thus
granted benefit of the period of service to the persons mentioned
in the above provision and by a deeming fiction such period of
service was considered as the period in practice as an advocate.
Thus the above provision made the Prosecuting Officers such as
Public Prosecutor, Additional Public Prosecutor, Assistant
Public Prosecutor or other Prosecuting Officer, by whatever
name called, also eligible for being included in the panel to be
prepared by the District Magistrate in consultation with the
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Sessions Judge fit to be appointed as Public Prosecutors or
Additional Public Prosecutors for the district.
19. In this background we have to understand the scope of sub-
section (6) of Section 24 which gives a clear mandate to appoint
a Public Prosecutor or an Additional Public Prosecutor only
from amongst the persons constituting a regular cadre of
Prosecuting Officers. According to this provision any person
from the advocates or from any other source cannot be
appointed as a Public Prosecutor or an Additional Public
Prosecutor if there already exists a regular cadre of Prosecuting
Officers in a State. So far as the proviso to sub-section (6) of
Section 24 is concerned it would not apply in the normal
circumstances and would only be attracted where in the opinion
of the State Government no suitable person is available in such
regular cadre of Prosecuting Officers for appointment as Public
Prosecutor or Additional Public Prosecutor. Admittedly the
regular cadre of Prosecuting Officers in the State of Kerala as
well as in the State of U.P. does not include Public Prosecutors
or Additional Public Prosecutors. The case of the appellants is
that Assistant Public Prosecutors Grade I and Grade II together
constitute a cadre of Prosecuting Officers so as to attract the
applicability of sub-section (6) of Section 24 of the Code. It has
been contended on their behalf that unless the government
formed the requisite opinion that no suitable person is available
in the said cadre for appointment as Public Prosecutor or
Additional Public Prosecutor, the appointments to the posts of
Public Prosecutor, and Additional Public Prosecutor can be
made only from amongst persons holding the posts of Assistant
Public Prosecutors Grade I and Grade II.

42. The Supreme Court in the case of Centre for Public Interest
Litigation v. Union of India , reported in (2012) 3 SCC 117 has held as
under :
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21. The expression ―under‖ occurring in Section 46(2) of the
said Act must be reasonably construed in a manner which is
consistent with the dignity of the office of Public Prosecutor. A
Public Prosecutor cannot be equated with a person who is
holding an office under the State. He cannot be treated as a
government employee. It may be that he should be a lawyer on
the government panel. However, the independence of the Public
Prosecutor from any governmental control is the hallmark of this
high office.
22. Reference in this connection may be made to the decision of
this Court in Shrilekha Vidyarthi v. State of U.P. wherein the
following observations have been made: (SCC p. 233, para 14)
― 14 .… [The] function of the Public Prosecutor relates to a public
purpose entrusting him with the responsibility of so acting only
in the interest of administration of justice. In the case of Public
Prosecutors, this additional public element flowing from
statutory provisions in CrPC, undoubtedly, invest the Public
Prosecutors with the attribute of holder of a public office which
cannot be whittled down by the assertion that their engagement
is purely professional between a client and his lawyer with no
public element attaching to it.‖
23. The role of a Public Prosecutor in a criminal justice system
has been very aptly put in the following words: [ Christmas
*
Humphreys : 1955 Criminal Law Review (pp. 740-41)]
―The Prosecutor has a duty to the State, to the accused and to the
court. The Prosecutor is at all times a minister of justice, though
seldom so described. It is not the duty of the prosecuting counsel
to secure a conviction, nor should any prosecutor even feel pride
or satisfaction in the mere fact of success.‖
24. A Public Prosecutor is really a minister of justice and his job
is none other than assisting the State in the administration of
justice and in fact he is not a representative of any party. (See
Babu v. State of Kerala .) The same view has also been

expressed in R. v. Banks wherein it has been said that the Public
Prosecutor: (Cr App Rep p. 76)
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―… throughout a case ought not to struggle for the verdict
against a prisoner but … ought to bear themselves rather in the
character of minister of justice assisting in the administration of
justice.‖
25. This Court has also expressed the same opinion in Manu
Sharma v. State (NCT of Delhi) , where this Court held that a
Public Prosecutor must observe a wider set of duties than to
merely ensure that the accused is punished. His job is to ensure
fair play in all proceedings. (Paras 185-88.) In the Constitution
Bench decision of this Court in Sheonandan Paswan v. State of
Bihar , this Court held that a Public Prosecutor is not a
representative of any ordinary party to a controversy but of the
sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all.
26. Therefore, there is a public element in such an appointment.

43. Thus, it is clear that the post of a Public Prosecutor is not like any
other Govt. Job and it has multiple onerous duties. The person appointed
as Public Prosecutor must be efficient and trustworthy person with
impeccable character. The independence of Public Prosecutor is the
hallmark. The job of a Public Prosecutor is that of assisting the State in
the administration of Justice and is not a representative of any party. His
job is to ensure fair play. The expected attitude of the Public Prosecutor
while conducting prosecution must be couched in fairness not only to the
Court, to the investigation agencies but to the accused as well. Public
Prosecutor should strike a fair balance between the competing interests of
convicting the guilty, protecting citizens' rights and freedoms and
protecting the public from criminals. Prosecutors should ensure that
prosecutions are conducted in a diligent, competent and fair manner.
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Prosecutor is not a part of investigating agency but is an "independent
statutory authority". He performs statutory duties and functions. He holds
an office of responsibility as he has been enclothed with the power to
withdraw the prosecution of a case on the directions of the State
Government. They, thus, represent the interest of the general public
before a court of law. The Public Prosecutors while presenting the
prosecution case have a duty to see that innocent persons may not be
convicted as well as an accused guilty of commission of crime does not go
unpunished. The public interest would be safeguarded only when good
and competent counsel are appointed by the State. The appointment of the
District Government Counsel by the State Government was not merely a
professional engagement but had a public element attached to it. Public
Prosecutors/ Government Counsel are paid remuneration out of the public
exchequer and that having regard to Sections 24, 25 and 321 of the Code
of Criminal Procedure, the Public Prosecutors were entrusted the
responsibility of acting only in the interest of administration of justice.
44. Admittedly, the persons holding posts of CrPC Clerk/Asstt. Grade
III/APCD Grade III have no experience of appearing before the Court or
examining or cross examining the witnesses. The failure of the Public
Prosecutors in effectively cross examining the hostile witnesses or
conducting the Trial has been highlighted by the Supreme Court in the
case of Mahabir (Supra) and the in same judgment, the Supreme Court
has also highlighted that the Public Prosecutors should not only be well
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conversant with law but should be of impeccable character, honest as he is
performing statutory duties as they represent the general public.
45. The posts of CrPC clerk/Asstt. Grade III/APCD Grade III are
Ministerial posts and are only required to do office work. Merely because
they hold LL.B. or equivalent degree, would not constitute a separate class
requiring separate treatment by providing separate promotional avenues
directly to class II from Class III whereas the other CrPC clerks/Asstt.
Grade III/APCD Grade III who are not holding LL.B. or equivalent degree
will get promotion to another class III post i.e., Asstt. Grade II.
46. The Supreme Court in the case of Tapasmita Sutar Vs. Union of
India and others decided on 6-10-2026 in W.P.(c) No. 1224/2026 has
held as under :
15. Second, and in any event, service as a Bench Clerk in the
District Judiciary is substantially different from service as a Law
Clerk in this Court or the High Courts. A Law Clerk works
closely with a Judge, undertaking comprehensive legal research,
analysis of pending matters, and some drafting. It is this close
association with the process of adjudication that led this Court,
in the Judgment dated 20.05.2025, to count experience as a Law
Clerk towards the period of practice. By contrast, the duties of a
Bench Clerk, though indispensable to the functioning of any
court, are more ministerial in nature and do not involve such
close contact with judicial decision-making. The Petitioner
apprehends that she is being excluded merely on the basis of 10
the nomenclature of her post. We hasten to clarify that such is
not the case. The distinction lies in the nature and substance of
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the duties discharged and, examined on that very touchstone, her
service cannot be equated with that of a Law Clerk.
47. If the duties assigned to the posts of CrPC clerk/Asstt. Grade
III/APCD Grade III are considered, then they are purely
ministerial/clerical in nature having no contact either closely or
distantly with Judicial decision making. By order dated 1-10-2018
(relied upon by the respondents), the Director, Prosecution has
assigned duties to Asstt. Grade III, which reads as under :
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dslksa dh laiw.kZ lwph O;ofLFkr dj v|ru j[kuk
03
04 lacaf/kr vf/kdkjh ds le{k vxys fnol fu;r gksus okys izdj.kksa
dh lwph izLrqr djuk
05 izdj.k dh izxfr ,oa vkxkeh dk;Zokgh ds laca/k es lqlaxr
jftLVj @ Qkby es bUnzkt djuk
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izdj.kksa es yxus okys vkosnu] fyf[kr cgl] vihy @ iqujh{k.k
06
vkfn rS;kj djus es lg;ksx djuk
07 lacaf/kr vf/kdkjh ds funsZ’k ij U;k;ky;hu Qkby ls dksbZ
tkudkjh izkIr djuks gks rks dksVZ eksgfjj ds ek?;e ls tkudkjh
izkIr djuk
08 vU; dksbZ dk;Z tks lacaf/kr vf/kdkjh vFkok ofj"B vf/kdkjh }kjk
funsZf’kr fd;k tk,A
48. From plain reading of work distribution done by the Director
Prosecution, it is clear that the job of the Asstt. Grade III is purely of
Ministerial in nature having no exposure to Judicial decision-making
process.
49. Similarly, earlier the CrPC clerks were to prepare the copies of
Police Charge Sheet for the presentation before Trial Court, however, now
with introduction of Photocopies, the said work is performed by a police
constable posted in the office of Police Superintendent. It was submitted
by Counsel for Petitioner that now recruitment to the post of CrPC Clerks
are not taking place.
50. Similarly the duty of Asstt. Previous Conviction Detective (APCD
Grade III) is to assist the Previous Conviction Detective (PCD) who has to
discharge the duties as prescribed in police regulation 525 and 526.
According to the Counsel for Petitioner, the designation PCD has been
redesignated as sub-inspector etc. Be that whatever it may be.
51. One thing is clear that the job of Asstt. Grade III/CrPC
clerk/APCD Grade III is purely Ministerial/clerical in nature.
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52. So far as the duties of ADPO are concerned, the same may be
summarized as under :

1. To conduct Trial before the Court of Magistrate
2. To examine and cross examine the witnesses, to assist the
Magistrate in preparing the accused statement
3. To send a proposal for challenging the judgments passed by the
Magistrate Court
4. To give legal advice as sought by investigating agency ;
5. To conduct Trial as Add. Public Prosecutor after completing 7
years of service and to conduct Trial as Special Public
Prosecutor after completing 10 years of service.
53. Furthermore, the Law and Legislative Department of State of
Madhya Pradesh by Gazette Notification No. 2277-21-B(2) 2019 dated 1-
5-2019 has appointed ―Asstt. District Public Prosecution Officers‖ having
7 years of service or more as ―Special Public Prosecutors‖ also. Similarly
by Notification No. 1/12321-B(2)/2022 dated 18-1-2022 has appointed
―Additional District Public Prosecution Officers‖ having service of 7 years
or more as ―Special Public Prosecutor‖ under Section 32 of POCSO Act,
2012 and under Section 15 of SC/ST (Prevention of Atrocities) Act. By
Gazette Notification No. 3703-3329-2022-B-4-2 dated 16-11-2022, the
Home Department has appointed ―Assistant District Public Prosecution
Officers‖ having 7 year of more service experience as ―Special Public
Prosecutor‖ to conduct prosecution before Special Courts, of concerned
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District under Section 11 read with Section 22 of National Investigation
Agency Act. By notification dated 4150/21-B(2)/2022 dated 13-12-2022
has appointed ―Asstt. District Public Prosecution Officers‖ having 10
years or more service experience as ―Special Prosecutors‖ to conduct
Sessions Trial arising out of investigations done by Special Units, ATS,
Cyber Cell of Police and C.I.D.
54. Thus, it is clear that now a days, the Asstt. District Public
Prosecution Officers are not only representing the State before the
Magistrate Courts but have also been appointed as Special Public
Prosecutors to conduct Sessions Trial.
55. Furthermore as per Schedule 3 of Rules 1998, the minimum
qualification for recruitment to the post of Asstt. Grade III/CrPC clerk is
Higher Secondary Examination or High School Examination (10+2)
passed from Board of Secondary Education, Madhya Pradesh Bhopal or
other Institute recognized by any State and Hindi Typing Examination
passed from Madhya Pradesh Board of Typing and Shorthand or any other
Institution recognized by the Government and possess knowledge of
Computer Operation also. Similarly, minimum qualification for
recruitment to the post of APCD Grade III is Higher Secondary
Examination or High School Examination (10+2) passed from Board of
Secondary Education, Madhya Pradesh Bhopal or other State recognized
Institute. There is nothing in Rules 1998 to the effect that any additional
educational qualification will make the employee entitled for different
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treatment in the form of promotion directly to the post of ADPO which is
Cadre II post. Merely because incidentally an employee is holding a
degree of LL.B. or equivalent degree would not make him a separate class.
56. The Supreme Court in the case of Jomon KK Vs. Shajimon P.
and others decided on 2-4-2025 in SLP (c) No. 7930-31/2020 has held
as under :
27. There is one other important aspect which also cannot be
lightly overlooked. We shall assume for a moment that though
the process was commenced for appointment on vacant posts of
Lascar, there was no illegality in persons having Syrang‘s
licence being permitted to participate. Of course, there could be
aspirants holding Lascar‘s licence in sufficient numbers who
might not have the higher qualifications necessary for even
appearing for a viva voce to aim at possessing a certificate of
competency as Syrang. Those aspirants, holding a Lascar‘s
licence, might not also be so capable and/or competent for
obtaining a Syrang‘s licence. After all, all individuals are not
blessed with the same level of intelligence, human abilities and
intellect. The distribution of innate abilities and intellectual
prowess being far from uniform, resulting in a diverse spectrum
of human potential, it is axiomatic that aspirants having only a
Lascar‘s licence can never be considered for direct recruitment
on any post in Class III of the Subordinate Service other than a
Lascar. It is quite but natural that in the matter of observation,
perception and memorisation of details of principles of
navigation, and skill in respect of seamanship, there would be
significant differences in the faculties of different individuals. If
persons holding Syrang's licence - who are obviously better
equipped than persons holding Lascar‘s licence - are allowed to
apply and participate in the process for appointment on the post
of Lascar, the probability of the persons holding Lascar's licence
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being outperformed by the persons holding Syrang's licence
would be quite high. It could also be a distinct possibility where
all the vacant posts of Lascar are filled up by persons having
Syrang's licence but not having a current Lascar‘s licence as per
the statutory requirement. That would pose a real difficulty for
persons not so fortunate and lacking in higher intelligence,
abilities and intellect, for, they would cease to have a level
playing field of competing with other similarly qualified
candidates, and left to compete with candidates having higher
qualifications despite the zone of consideration having been
specially carved out for holders of current Lascar‘s licence. It is
not that the holders of Syrang‘s licence are left in the lurch.
Those having Syrang‘s licence could well compete for
appointment on the post of Syrang in the 50% direct recruitment
quota along with others having current Syrang‘s licence. If, in
case, all the vacant posts of Lascar are filled up by persons
having Syrang‘s licence and such holders of Syrang‘s licence do
not participate in the process for direct recruitment to the post of
Syrang, it is fairly likely that the persons holding Lascar‘s
licence would never secure any public employment. That could
not have been the intention of a welfare State.
28. Also, it cannot be gainsaid that not only the qualifications
but the nature of duties required to be performed and the nature of
service to be rendered by a Lascar and a Syrang are different.
Merely because the post of Lascar is a feeder post for promotion
to the post of Syrang does not per se make the holder of a
Syrang‘s licence qualified for the job of a Lascar. Thus, nothing
much turns on it.
*
36. We hasten to add that whether or not the action of the
employer to exclude an aspirant from the process of selection (on
the ground that either he is over qualified for a particular post or
has qualifications which, being over and above what is ordained
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by statutory rules or rules framed under the proviso to Rule 309 of
the Constitution, does not match the qualification specifically
required) is justified has to be decided considering the rules
governing the selection, the qualifications prescribed, the nature of
duty to be performed, the nature of service to be rendered and a
host of other factors. It has to be remembered that, at times, the
employer‘s need to have the right people at the right place, and
not always the higher qualified, has to be conceded. We know of
decisions holding that over-qualification cannot be a
disqualification since such an approach amounts to discouraging
the acquisition of qualifications on the one hand and on the other,
such an approach could be seen as arbitrary, discriminatory and
not in national interest. However, this principle cannot be put in a
straitjacket imposing rigid or inflexible rules or norms. Lack of
public employment opportunities in sufficient numbers may force
even a Master degree holder to apply for the job of a peon but, if
he is appointed upon his application being favourably considered,
what happens to the aspirants who have not had the means of
pursuing study beyond the 12th standard? Do they remain
unemployed for ever, if all or majority of the posts of peon are
filled up by such degree holders? What happens if the Master
degree holder, in pursuit of greener pastures, leaves the post of
Peon for a better and secured higher job commensurate with his
qualifications after a couple of years? Does it not, in such a case,
burden the public exchequer by requiring the employer to initiate
a fresh selection process? Is not the State, as a model employer,
obliged to ensure that the posts of peon are filled up only by those
having the basic qualification, and not by over qualified
candidates, for sub-serving the common good? Does not the State
have the obligation to strive to ensure that all citizens have
adequate means of livelihood? These are questions which no
Court can afford to ignore. We end by saying that each case that
comes before the Court has to be decided on its own peculiar facts
and the problem that it presents for resolution and that there can
be no universally accepted rule that every time, a higher qualified
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candidate is to be preferred to a candidate who matches the
essential qualification required for the post.
57. If CrPC clerks/Asstt. Grade III/APCD Grade III who are having
LL.B. degree are given different treatment by providing a separate
promotional avenue directly to class II post, then it would result in
creating a short cut for appointment to the post of ADPO. A person fails
to pass recruitment test conducted by PSC as required under Article 309 of
Constitution, would get another opportunity to get appointed to the Class
II post of ADPO by adopting another method i.e., by serving the
Prosecution Office as CrPC clerk or Asstt. Grade III or APCD Grade III
for 7 years. If this method is allowed, then it would amount to backdoor
entry to Class II cadre without clearing PSC examination. Furthermore,
merely because a person is holding a higher qualification in comparison to
a person who is holding only the minimum qualification or any other
qualification, then he cannot be put in an advantageous position.
58. Therefore, the classification done by the State i.e., CrPC
clerks/Asstt. Grade III/APCD Grade III having LL.B. or equivalent degree
and CrPC clerks/Asstt. Grade III/APCD Grade III having only minimum
qualification or any other higher qualification other than LL.B. or
equivalent degree cannot be held to an intelligible differentia. Further
more, this Court has already referred to various judgments pronounced by
Supreme Court regarding the duties of Public Prosecutors, and since, the
job of CrPC clerks/Asstt. Grade III/APCD Grade III is only Ministerial in
nature, therefore, in the light of judgment passed by Supreme Court in the
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case of Tapasmita Sutar (Supra), it cannot be held that the impugned
amendment was introduced with some reasonable nexus with object
sought to be achieved.
Whether the letter dated 4-7-2019 and 12-1-2021 for withdrawal of
10% quota for promotion to the post of ADPO can be said to be a
good ground for declaring the provision ultra vires ?
59. Although the Counsel for the Petitioner referred to the letter of
Director, Prosecution to submit that since, the ADPOs who were promoted
from the post of CrPC Clerk/Asstt. Grade III/APCD Grade III have not
proved to be efficient, therefore, the amendment of Schedule II and
Schedule IV of Rules 1991 be declared as ultra vires but, the said
submission cannot be accepted. However, the letter of the Director,
Prosecution can be looked into to find out as to whether the ADPOs who
were promoted from the post of CrPC Clerk/Asstt. Grade III/APCD Grade
III are capable to fulfilling the expectations from ADPOs or not.
60. It is the stand of the respondents that the recommendation made by
Director, Prosecution to withdraw 10% quota of promotion was rejected
by the State Govt. by its letter dated 1-3-2021.
61. Considered the submissions made by Counsel for the parties.
62. The moot question for consideration is that whether the failure of a
provision to fetch good result would make the provision ultra vires or not?
63. The question is no more res integra .
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64. The Supreme Court in the case of Pannalal Binjraj (Firm) v.
Union of India, reported in (1956) 2 SCC 865 has held as under :

29. This presumption, however, cannot be stretched too far and
cannot be carried to the extent of always holding that there must
be some undisclosed and unknown reason for subjecting certain
individuals or corporations to hostile and discriminatory
treatment (vide Gulf, Colorado & Santa Fe Railway Co. v. W.H.
Ellis ). There may be cases where improper execution of power
will result in injustice to the parties. As has been observed,
however, the possibility of such discriminatory treatment cannot
necessarily invalidate the legislation and where there is an abuse
of such power, the parties aggrieved are not without ample
remedies under the law (vide Dinabandhu Sahu v. Jadumoni
Mangaraj ). What will be struck down in such cases will not be
the provision which invests the authorities with such power but
the abuse of the power itself.

65. Therefore, it is held that amendment of Schedule II and IV of Rules
1991 cannot be held to be ultra vires for the reason that it could not fetch
good results but the same can be a ground for the State Govt. to withdraw
the quota of 10%. From the letter of Director, Prosecution, it is clear that
ADPOs promoted from the post of CrPC clerk/Asstt. Grade III/APCD
Grade III could not prove to be an effective one. Therefore, if such
promotees have failed to discharge the duties of Public Prosecutor, then
this letter of Director, Prosecution can always be taken into consideration
to find out as to whether the 10% promotion quota had any reasonable
nexus with object sought to be achieved or not.
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66. So far as the question of rejection of recommendation by Director,
Prosecution is concerned, the same cannot be said to be conclusive and
authoritative decision based on sound principles of law. From the letter
dated 1-3-2021, it is clear that the State Govt. had adopted an evasive
method of dealing with a very crucial question raised by Director,
Prosecution. Merely because some persons were further promoted to
District Public Prosecution Officer cannot be a criteria to justify the
amendment. The criteria for promotion from class II post to another class
II Post is Seniority cum merit basis. If a person is Senior and is fulfilling
the benchmark, then he cannot be denied promotion. Therefore, merely
because some of the Promotee ADPO‘s were further promoted to the post
of District Public Prosecution Officer which is also of Class II Post and the
criteria for promotion is Seniority cum Merit basis, cannot be said to be
sufficient and proper reason to reject the recommendation made by the
Director, Prosecution to withdraw 10% quota of promotion to the post of
ADPO‘s.
67. Thus, it is held that the letter dated 4-7-2019 written by Director,
Prosecution regarding poor performance of ADPO‘s promoted from the
post of CrPC clerk/Asstt. Grade III/APCD Grade III, is an authoritative
proof that the promotion quota of 10% introduced by amendment in
Schedule II and IV of Rules, 1991 has no reasonable nexus with object
sought to be achieved.
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Whether a person without getting himself enrolled with Bar Council
and without passing All India Bar Examination can appear before the
Court in the capacity of ADPO.
68. The first question for consideration is that whether the person
holding the post of ADPO or Public Prosecutor can be treated as an
Advocate or not?

69. The Supreme Court in the case of Sushma Suri Vs. Govt. of
National Capital Territory of Delhi, reported in (1999) 1 SCC 330 has
held as under :
4. We have to ascertain the meaning of the expression ―advocate
or a pleader‖ used in Article 233(2) of the Constitution and to do
so we may use the Advocates Act and the Rules framed by the
Bar Council. Under Section 2( a ) of the Advocates Act,
―advocate‖ means advocate entered in any roll under the
provisions of the Act.
5. Rule 49 framed by the Bar Council reads as follows:
―An advocate shall not be a full-time salaried employee of any
person, Government, firm, corporation or concern, so long as he
continues to practise and shall, on taking up any such
employment, intimate the fact to the Bar Council on whose roll
his name appears, and shall thereupon cease to practise as an
advocate so long as he continues in such employment.
Nothing in this Rule shall apply to a law officer of the Central
Government or of a State or of any public corporation or body
constituted by statute who is entitled to be enrolled under the
rules of his State Bar Council made under Section 28(2)( d ) read
with Section 24(1)( e ) of the Act despite his being a full-time
salaried employee .
Law officer for the purpose of this Rule means a person who is
so designated by the term of his appointment and who, by the
said term, is required to act and/or plead in courts on behalf of
his employer.‖
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6. If a person on being enrolled as an advocate ceases to practise
law and takes up an employment, such a person can by no
stretch of imagination be termed as an advocate. However, if a
person who is on the rolls of any Bar Council is engaged either
by employment or otherwise of the Union or the State or any
corporate body or person practises before a court as an advocate
for and on behalf of such Government, corporation or authority
or person, the question is whether such a person also answers
the description of an advocate under the Act. That is the precise
question arising for our consideration in this case.
7. This Court in All India Judges’ Assn. v. Union of India
decided on 10-5-1995 held that:
―There is no doubt in our minds that what was intended by the
provision was that a candidate for appointment to judicial office
should be a person who had three years‘ experience of practice
as an advocate. He must be a lawyer in the sense that he
regularly practises before a court or tribunal, who appears for his
clients before the court or tribunal. It may be that in a given case
he may do so only for a client who is his employer.‖
8. For purposes of the Advocates Act and the Rules framed
thereunder the law officer (Public Prosecutor or Government
Counsel) will continue to be an advocate. The intention of the
relevant Rules is that a candidate eligible for appointment to the
Higher Judicial Service should be a person who regularly
practises before the court or tribunal appearing for a client.
9. In Oma Shanker Sharma case the Delhi High Court
approached the matter in too pedantic a manner losing sight of
the object of recruitment under Article 233(2) of the
Constitution. Whenever any recruitment is conducted to fill up
any post, the area of recruitment must be as broad-based as the
Rules permit. To restrict it to advocates who are not engaged in
the manner stated by us earlier in this order is too narrow a
view, for the object of recruitment is to get persons of necessary
qualification, experience and knowledge of life. A Government
Counsel may be a Public Prosecutor or Government Advocate or
a Government Pleader. He too gets experience in handling
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various types of cases apart from dealing with the officers of the
Government. Experience gained by such persons who fall in this
description cannot be stated to be irrelevant nor detrimental to
selection to the posts of the Higher Judicial Service. The
expression ―members of the Bar‖ in the relevant Rule would
only mean that particular class of persons who are actually
practising in courts of law as pleaders or advocates. In a very
general sense an advocate is a person who acts or pleads for
another in a court and if a Public Prosecutor or a Government
Counsel is on the rolls of the Bar Council and is entitled to
practise under the Act, he answers the description of an
advocate.
10. Under Rule 49 of the Bar Council of India Rules, an
advocate shall not be a full-time employee of any person,
Government, firm, corporation or concern and on taking up such
employment, shall intimate such fact to the Bar Council
concerned and shall cease to practise as long as he is in such
employment. However, an exception is made in such cases of
law officers of the Government and corporate bodies despite his
being a full-time salaried employee if such law officer is
required to act or plead in court on behalf of others. It is only to
those who fall into other categories of employment that the bar
under Rule 49 would apply. An advocate employed by the
Government or a body corporate as its law officer even on terms
of payment of salary would not cease to be an advocate in terms
of Rule 49 if the condition is that such advocate is required to
act or plead in courts on behalf of the employer. The test,
therefore, is not whether such person is engaged on terms of
salary or by payment of remuneration, but whether he is
engaged to act or plead on its behalf in a court of law as an
advocate. In that event the terms of engagement will not matter
at all. What is of essence is as to what such law officer engaged
by the Government does — whether he acts or pleads in court
on behalf of his employer or otherwise. If he is not acting or
pleading on behalf of his employer, then he ceases to be an
advocate. If the terms of engagement are such that he does not
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have to act or plead, but does other kinds of work, then he
becomes a mere employee of the Government or the body
corporate. Therefore, the Bar Council of India has understood
the expression ―advocate‖ as one who is actually practising
before courts which expression would include even those who
are law officers appointed as such by the Government or body
corporate.

70. Section 24 of Advocates Act, requires registration with Bar
Council. Section 24 of Advocates Act read as under :
24. Persons who may be admitted as advocates on a State
roll .—(1) Subject to the provisions of this Act, and the rules
made thereunder, a person shall be qualified to be admitted as an
advocate on a State roll, if he fulfils the following conditions,
namely:—
(a) he is a citizen of India:
Provided that subject to the other provisions contained in this
Act, a national of any other country may be admitted as an
advocate on a State roll, if citizens of India, duly qualified, are
permitted to practise law in that other country;
(b) he has completed the age of twenty-one years;
(c) he has obtained a degree in law—
(i) before the 12th day of March, 1967, from any University in
the territory of India; or
(ii) before the 15th day of August, 1947, from any University in
any area which was comprised before that date within India as
defined by the Government of India Act, 1935; or
(iii) after the 12th day of March, 1967, save as provided in sub-
clause (iii-a), after undergoing a three-year course of study in
law from any University in India which is recognised for the
purposes of this Act by the Bar Council of India; or
(iii-a) after undergoing a course of study in law, the duration of
which is not less than two academic years commencing from the
academic year 1967-68, or any earlier academic year from any
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University in India which is recognised for the purposes of this
Act by the Bar Council of India; or
(iv) in any other case, from any University outside the territory
of India, if the degree is recognised for the purposes of this Act
by the Bar Council of India; or
he is a barrister and is called to the Bar on or before the 31st day
of December, 1976; or has passed the articled clerk‘s
examination or any other examination specified by the High
Court at Bombay or Calcutta for enrolment as an attorney of that
High Court;] or has obtained such other foreign qualification in
law as is recognised by the Bar Council of India for the purpose
of admission as an advocate under this Act];
(d) *
(e) he fulfils such other conditions as may be specified in the
rules made by the State Bar Council under this Chapter;
(f) he has paid, in respect of the enrolment, stamp duty, if any,
chargeable under the Indian Stamp Act, 1899 (2 of 1899), and
an enrolment fee payable to the State Bar Council of six hundred
rupees and to the Bar Council of India, one hundred and fifty
rupees by way of a bank draft drawn in favour of that Council:
Provided that where such person is a member of the Scheduled
Castes or the Scheduled Tribes and produces a certificate to that
effect from such authority as may be prescribed, the enrolment
fee payable by him to the State Bar Council shall be one
hundred rupees and to the Bar Council of India, twenty-five
rupees.
Explanation.—For the purposes of this sub-section, a person
shall be deemed to have obtained a degree in law from a
University in India on the date on which the results of the
examination for that degree are published by the University on
its notice-board or otherwise declaring him to have passed that
examination.
(2) Notwithstanding anything contained in sub-section (1), a
vakil or a pleader who is a law graduate] may be admitted as an
advocate on a State roll if he—
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(a) makes an application for such enrolment in accordance with
the provisions of this Act, not later than two years from the
appointed day; and
(b) fulfils the conditions specified in clauses (a), (b), (e) and (f)
of sub-section (1).
(3) Notwithstanding anything contained in sub-section (1), a
person who—
(a) * has, for at least three years, been a vakil or a pleader or
a mukhtar, or was entitled at any time to be enrolled under any
law as an advocate of a High Court (including a High Court of a
former Part B State) or of a Court of Judicial Commissioner in
any Union territory; or
(aa) before the 1st day of December, 1961, was entitled
otherwise than as an advocate to practise the profession of law
(whether by way of pleading or acting or both) by virtue of the
provisions of any law, or who would have been so entitled had
he not been in public service on the said date; or
(b) *
(c) before the 1st day of April, 1937, has been an advocate of
any High Court in any area which was comprised within Burma
as defined in the Government of India Act, 1935; or
(d) is entitled to be enrolled as an advocate under any rule made
by the Bar Council of India in this behalf,
may be admitted as an advocate on a State roll if he—
(i) makes an application for such enrolment in accordance with
the provisions of this Act; and
(ii) fulfils the conditions specified in clauses (a), (b), (e) and (f)
of sub-section (1).

71. Thus, Section 24 of Advocates Act, mandates enrolment as an
advocate on a State roll. An Assistant District Prosecution Officer is
responsible for handling both types of work i.e. legal and administrative.
The job role includes representing the government in criminal cases, case
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& evidence study, maintaining and preparing the legal documents and
working in coordination with the police and investigation teams. ADPO
also represents himself in arguments in court and ensures that all the legal
procedures are properly followed. The ADPO is primarily responsible for
conducting trial before the Magistrate Courts. Further for recruitment to
the post of ADPO, preference is also given to those candidates who have
two years practice.
72. Further passing of All India Bar Examination is essential to appear
as an Advocate before the Court. The Supreme Court in the case of Bar
Council of India Vs Bonnie Foi Law College reported in (2017) 11 SCC
185 , doubted the correctness of judgment passed in the case of V.
Sundeer Vs. Bar Council of India reported in (1999) 3 SCC 176 and
referred the matter to larger Bench.
73. Answering the reference, Supreme Court in the case of Bar
Council of India v. Bonnie Foi Law College, reported in (2023) 7 SCC
756 has held as under :
6. The original dispute between the Bar Council of India and
Bonnie Foi Law College, the respondent College herein, arose
on account of the application of the said College for affiliation
to carry on a legal study course. This Court appointed an
1
inspection team on 29-6-2009 , which visited the respondent
College and gave a comprehensive report pointing out
shortcomings in the infrastructure and functioning of the
College. On 24-8-2009, the Court laid down certain conditions
to be followed by the respondent College which the College
claimed to have fulfilled later.
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7. During the course of this matter, a larger question of
diminishing standards of legal education provided at various law
colleges in India came to be noticed vide the order dated 29-6-
1
2009 , which resulted in a Committee being appointed
comprising Mr Gopal Subramanium, then Solicitor General of
India as its Chairman; Mr M.N. Krishnamani, then President of
the Supreme Court Bar Association; and Mr S.N.P. Sinha, then
Chairman of the Bar Council of India. The said Committee was
requested to examine issues relating to affiliation and
recognition of law colleges, to identify areas requiring redressal
and to address factors impeding the implementation of existing
norms. A report was submitted to this Court on 6-10-2009
(hereinafter referred to as ―the Report‖).
8. The Report recognised two significant aspects as imperative
for improving standards of legal profession i.e. firstly,
introduction of a Bar Examination and, secondly, compulsory
requirement of apprenticeship under a senior lawyer prior to
admission to the Bar. It made the following observations:
8.1. Bar Examination in India : A Bar Examination is a
precondition for admission to the Bar in most Commonwealth
countries.
8.2. Pre-enrolment training : The requirement of training with a
senior member of the Bar was present even before the enactment
of the said Act, wherein a prospective lawyer was required to
―train‖ in the chambers for a period of one year, and then appear
in an examination comprising the subjects of Civil and Criminal
Procedure. Thereafter, Section 24(1)( d ) of the said Act
continued the requirement of apprenticeship for graduate law
students. However, this provision was omitted by Amending Act
60 of 1973 (hereinafter referred to as ―the 1973 Act‖), thereby
discontinuing the practice.
9. The Report also recorded that the 1973 Amendment omitted
Section 28(2)( b ) of the said Act, which enabled the State Bar
Councils to frame rules regarding training and Bar Examination.
In 1994, a High-Powered Committee on Legal Education
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recommended the reintroduction of the requirement for
apprenticeship and Bar Examination and thus, the Bar Council
of India (Training) Rules, 1995 (hereinafter referred to as ―the
1995 Rules‖) were framed by the Bar Council of India in
furtherance of the mandate of the High-Powered Committee.
However, the 1995 Rules were struck down by this Court in the
judgment of V. Sudeer v. Bar Council of India , opining that
once express provisions on Sections 24(1)( d ) and 28(2)( b ) had
been omitted by the statutory amendment, the requirement could
not be reintroduced. The Report also suggested that the Bar
Council of India‘s role as the primary body for regulating
standards of professional legal education should be reaffirmed.
10. On 14-12-2009, Mr Gopal Subramanium submitted that the
first All India Bar Examination will be conducted in July-
August, 2010, by a specially constituted independent body
consisting of experts of various disciplines of national stature.
3
The Court directed the Central Government to ensure that the
entire programme framed by the Committee headed by Mr
Gopal Subramanium was operationalised and further directed
institutions concerned to fully cooperate with the Bar Council of
India.
11. On the proceedings taking the aforesaid course, vide order
dated 18-3-2016 (hereinafter referred to as ―the reference
order‖), a three-Judge Bench of the Court opined that the
questions which fall for determination in the present matter are
of considerable importance affecting the legal profession in
general and need to be authoritatively answered by a
Constitution Bench. The reference order provided for three
questions to be answered by this Court, as under : (SCC pp. 192-
93, para 27)
― 27 . … 27.1 . ( i ) Whether pre-enrolment training in terms of the
Bar Council of India Training Rules, 1995 framed under Section
24(3)( d ) of the Advocates Act, 1961 could be validly prescribed
by the Bar Council of India and if so whether the decision of this
Court in V. Sudeer v. Bar Council of India requires
reconsideration?
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27.2 . ( ii ) Whether a pre-enrolment examination can be
prescribed by the Bar Council of India under the Advocates Act,
1961?
27.3 . ( iii ) In case Questions 1 and 2 are answered in the
negative, whether a post-enrolment examination can be validly
prescribed by the Bar Council of India in terms of Section
49(1)( ah ) of the Advocates Act, 1961.‖
*
37. Section 49(1)( ag ) reads as under:
― 49. General power of the Bar Council of to make rules .—[(1)]
The Bar Council of may make rules for discharging its functions
under this Act, and, in particular, such rules may prescribe—
*
( ag ) the class or category of persons entitled to be enrolled as
advocates;‖
38. Thus, the learned Senior Counsel contended that the
meaning of entitlement, would indicate that the Bar Council of
India could prescribe such conditions, which would give the
right or claim to a person to be enrolled as an advocate and the
power of Bar Council of India prior to enrolment cannot be
ousted. Further, the significance of Section 24(1) has to be read
with other provisions of the said Act and the Rules made
thereunder including the ―notwithstanding clause‖ at the
beginning of sub-section (3) of Section 24.
39. In the aforesaid context, we believe that we have to read the
powers of the State Bar Councils and the Bar Council of India in
the context of their respective statutory provisions. The powers
are not in pari materia. The Bar Council of India has much
larger powers and authority as submitted and discussed
aforesaid including in the submissions of the learned Amicus
Curiae.
40. We are unable to agree with the reasoning in V. Sudeer that
because the State Bar Councils‘ power for providing training or
for holding examination was taken away by the 1973
Amendment, it ipso facto amounts to taking away such powers
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if they so vested with the Bar Council of India. The legislative
object was clear i.e. not to confer such powers on the State Bar
Councils. However, that could not affect the position of the
power of the Bar Council of India, and naturally such a power
existed. If the Bar Council of India never had such a power, then
the same could not be read by implication. But, if the Bar
Council of India had sufficient powers, then the 1973
Amendment would not take away those powers of the Bar
Council of India as the said amendment did not deal with the
aspect of the powers of the Bar Council of India.
41. In addition, the learned Judges in V. Sudeer opined that if
such a power has to be conferred, it should be conferred
legislatively. While in principle, there can be no disagreement
with the broad proposition, the issue is whether such a power is
already existing with the Bar Council of India under the
statutory provisions. The functions of the Bar Council of India,
as specified under Section 7, inter alia prescribe an exercise of
general supervision and control over the State Bar Councils
under clause ( g ) of sub-section (1) of Section 7. Further, under
clause ( l ), the Bar Council of India has the power to perform all
other functions conferred on it by or under the said Act and
under clause ( m ) to do all other things necessary for discharging
the aforesaid functions. The powers are, thus, wide and
extensive as conferred by the legislature. Thus, when under
Section 24(1), the Bar Council of India has the statutory power
of prescribing rules subject to which a person may be treated as
qualified to be admitted as an advocate in the State Roll, then we
believe that the Bar Council of India is not devoid of its
jurisdiction in undertaking a pre-enrolment training course or
examination prescribed by the Bar Council of India.
42. In case of any subsisting doubt, we must refer to Section
49(1)( ag ) of the said Act, which while dealing with the general
powers of the Bar Council of to make rules, specifically
stipulates that the class or category of person entitled to be
enrolled as advocates, is an aspect for which all powers have
been conferred on the Bar Council of India. Thus, the provision
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for an examination for enrolment of advocates by the Bar
Council of India can hardly be doubted. We had specified at the
inception itself that quality control of entry into the Bar is the
need of the hour.
43. The objective of the legislature while giving wide powers to
the Bar Council of India under Section 49, which gives it the
powers to make rules, read with Section 24(3)( d ), which gives it
the powers to prescribe the norms for entitlement to be enrolled
as an advocate under the Rules of the Bar Council of India, leads
us to the conclusion that these are adequate powers with the Bar
Council of India under the said Act to provide such norms and
Rules.
44. We are, thus, of the view that while considering the
questions referred to us, the only conclusion which can be laid is
that the interdict placed by the judgment of this Court in V.
Sudeer on the powers of the Bar Council of India cannot be
sustained and we cannot hold that V. Sudeer lays down the
correct position of law.
45. The effect of the view expressed by us would be that it has
to be left to the Bar Council of India as to at what stage the All
India Bar Examination has to be held — pre or post. There are
consequences especially in respect of the interregnum period
which would arise in holding the All India Bar Examination in
either scenario, and it is not for this Court to delve into them but
it would be appropriate to leave it to the Bar Council of India to
look to the niceties of both situations. However, in view of
larger ramifications we do consider it appropriate to delve into
some, though not all of the aspects which may get involved in
holding the All India Bar Examination, especially in view of
some suggestions made by the Amicus Curiae.
46. We may take note of the fact that the All India Bar
Examination is scheduled to be held twice in a year. It is
necessary that this schedule should be strictly followed as
otherwise the students with Law degrees would be left idling
their time.
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47. One of the questions which arose was whether only on
passing the examination from a law university/college or
obtaining such a degree should a person be eligible to take the
All India Bar Examination? In India, the various recognised
institutions providing Law degrees often declare results at
different times. The concern is that a person on account of non-
declaration of result may lose out on the opportunity to appear in
the All India Bar Examination leading to a fairly long hiatus
period of time without having the opportunity to work in court
proceedings.
48. We are inclined to accept the suggestion from the learned
Amicus Curiae that students who have cleared all examinations
to be eligible to pursue the final semester of the final year course
of Law, on production of proof of the same, could be allowed to
take the All India Bar Examination. The result of the All India
Bar Examination would be subject to the person passing all the
components required under the course of study of the
university/college. This would be subject to the All India Bar
Examination results being valid for a specified period of time.

74. Thus, it is clear that a Public Prosecutor or even Asstt. District
Public Prosecution Officer are Advocates and therefore, they must fulfil
the requirement of the provisions of Section 24 of Advocates Act and
Rule 49 of Bar Council of India Rules.
75. But unfortunately, the State has not prescribed enrolment with Bar
Council as per Section 24 of Advocates Act and passing of AIBE as
minimum qualification. The State has provided that candidates having 2
years experience of practice as Advocate will be given preference. Since,
Schedule II of Rules 1991 by which minimum qualification for
recruitment to the post of ADPO has been provided is not under
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challenge, therefore, the requirement of enrolment with Bar Council and
passing of AIBE as minimum qualification for the post of ADPO shall be
considered in some other appropriate case. It is for the State to consider
as to whether the enrolment with Bar Council as required under Section
24 of Advocates Act and passing of AIBE should be made minimum
qualification for recruitment to the post of ADPO or not? However, it is
clear that for appearing before a Magistrate Court as ADPO, the candidate
must have been enrolled as an Advocate and must have passed AIBE.
76. However, in view of proviso to Rule 49 of Bar Council of India
Rules, such law officer is exempted from the applicability of Rule 49 of
Bar Council of India Rules.
77. If a CrPC clerk/Asstt. Grade III/APCD Grade III holding the degree
of LL.B. or equivalent from any recognized University are promoted to
the post of ADPO who has to be an Advocate, then it would not only be
contrary to the provisions of Section 24 of Advocates Act, but would also
be bypassing the requirement of passing AIBE.
78. Furthermore, Rule 49 of Bar Council of India prohibits the
registration of a person as an Advocate who is in full time Govt. job. Rule
49 of Bar Council of India Rules reads as under :
49. An advocate shall not be a full-time salaried employee of
any
person, government, firm, corporation or concern, so long as he
continues to practise, and shall, on taking up any such
employment,
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intimate the fact to the Bar Council on whose roll his name
appears
and shall thereupon cease to practise as an advocate so long as
he
continues in such employment.
79. Therefore, a Govt. employee so long he is in Govt. job cannot get
himself enrolled with Bar Council and therefore, he cannot be promoted to
the post of ADPO whose primary duty is to represent the State Govt.
before the Court of Law.
Whether two promotional avenues can be prescribed for single Feeder
Post?
80. It was next contended by Shri Prashant Sharma, Advocate that
opening a promotional avenue is within the employer‘s authority and
relied upon the judgment passed by Supreme Court in the case of P.U.
Joshi (Supra) in which it was held as under :
10……Questions relating to the constitution, pattern,
nomenclature of posts, cadres, categories, their
creation/abolition, prescription of qualifications and other
conditions of service including avenues of promotions and
criteria to be fulfilled for such promotions pertain to the field of
policy is within the exclusive discretion and jurisdiction of the
State, subject, of course, to the limitations or restrictions
envisaged in the Constitution of India and it is not for the
statutory tribunals, at any rate, to direct the Government to have
a particular method of recruitment or eligibility criteria or
avenues of promotion or impose itself by substituting its views
for that of the State. Similarly, it is well open and within the
competency of the State to change the rules relating to a service
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and alter or amend and vary by addition/substraction the
qualifications, eligibility criteria and other conditions of service
including avenues of promotion, from time to time, as the
administrative exigencies may need or necessitate. Likewise, the
State by appropriate rules is entitled to amalgamate departments
or bifurcate departments into more and constitute different
categories of posts or cadres by undertaking further
classification, bifurcation or amalgamation as well as
reconstitute and restructure the pattern and cadres/categories of
service, as may be required from time to time by abolishing the
existing cadres/posts and creating new cadres/posts. There is no
right in any employee of the State to claim that rules governing
conditions of his service should be forever the same as the one
when he entered service for all purposes and except for ensuring
or safeguarding rights or benefits already earned, acquired or
accrued at a particular point of time, a government servant has
no right to challenge the authority of the State to amend, alter
and bring into force new rules relating to even an existing
service.

81. Considered the submissions made by Counsel for intervener.
82. It is not the case of State or the interveners that there was no
promotional avenues for CrPC clerks/Asstt. Grade III/APCD Grade III.
As per Rules, 1998, the post of Assistant Grade III/CrPC clerk was the
feeder post for promotion to the post of Assistant Grade II and the post of
APCD Grade III is the Feeder post of PCD. Similarly, the post of Asstt.
Grade II and PCD are the Feeder posts for promotion to the post of Asstt.
Grade I. Post of Grade I is Feeder post for promotion to Superintendent.
All the posts are of Clerical Cadre of Class III. Therefore, there was no
need for opening a second promotional avenue for the posts of CrPC
clerks/Asstt. Grade III/APCD Grade III directly to the post of ADPO
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which is Class II post and that too by drawing distinction between the
employees having LL.B degree and employees having degrees other than
LL.B. degree.
Whether the State could have placed the post of CrPC Clerk/Asstt.
Grade III/APCD Grade III in Rules 1991 or not?
83. As already pointed out, all the three posts i.e., CrPC clerk/Asstt.
Grade III/APCD Grade III are class III posts and are the junior most posts
in clerical cadre provided under Rules 1998. The promotional avenue
from these posts is already provided under Rules 1998 which have already
been referred in previous paragraph. However, the State deliberately did
not make any amendment in Rules, 1998. Accordingly, the Counsel for
the State was directed to explain that whether the State could have placed
CrPC Clerk/Asstt. Grade III/APCD Grade III as the lowest post in
Schedule II and IV of Rules 1991 or not, if yes, then how a Grade III post
can be placed in Rules, 1991? The Counsel for the State fairly conceded
that a Grade III post cannot be placed in Schedule II and IV of Rules,
1991 and in fact amendment if any, should have been made in Rules,
1998.
84. The State deliberately did not introduce any amendment in Rules,
1998 for the simple reason, that otherwise, it would have been clear as
noon day that two different promotional avenues are being provided for
the same feeder post i.e., one directly to Cadre II post and another to
Cadre III post, and according to the State Counsel also, the same cannot
be done.
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Whether challenge to Constitutional Validity of a provision can be
dismissed on the ground of delay and laches
85. The Contention raised by Counsel for the interveners that by filing
writ petition in the year 2020, the petitioner has challenged the
amendment which was incorporated in the year 2002, therefore, filing of
writ petition after 18 year of amendment must be held to be bad on the
ground of delay and laches, cannot be accepted.
86. The period of limitation doesnot apply to proceedings under Article
226 of Constitution of India, however, the petition can be dismissed on
the ground of delay and laches.
87. So far as the validity of a provision is concerned, it gives rise to
fresh cause of action on every day. It is a continuous cause of action. If a
provision is found to be ultra vires, then challenge to the said provision
cannot be non suited on the ground of delay and laches. Furthermore, it
has already been contended by Counsel for one of the interveners that
after 2016, no steps were taken by State to fill up the promotional quota.
88. The petitioner has not sought the quashment of promotion orders
which have already been passed prior to filing of writ petition. Therefore,
the writ petition cannot be dismissed on the ground of delay and laches.
The Supreme Court in the case of Noida Toll Bridge Co. Ltd. v.
Federation of Noida Residents Welfare Assn., reported in (2025) 6
SCC 717 has held as under :
G.1.2. Delay and laches
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26. NTBCL contended that there was an inordinate delay on
the part of the respondent Association in filing the writ petition
before the High Court. NTBCL argued that the DND Flyway
had been operational since 2001, with the MoU and concession
agreement having been executed as far back as 1992 and 1997,
respectively. Given this, the writ petition was filed by
Respondent 1 only in 2012 — nearly 20 years after the
execution of the MoU and 15 years after the concession
agreement. NTBCL asserted that this substantial delay should
have been sufficient grounds for the High Court to dismiss the
writ petition at the outset.
27. This contention, in our considered opinion is wholly
misconceived and misdirected. We say so for the reason that
firstly , writ proceedings under Articles 32 or 226 are not guided
by the provisions of the Limitation Act, 1963, but instead, by the
doctrine of delay and laches. Without adverting much into its
pith and substance, it is ubiquitous that the doctrine of delay and
laches cannot be applied stricto sensu to writ petitions invoking
public interest jurisdiction, unless the Court is satisfied that the
party has not approached it with clean hands. It is now well
established that while delay is a material factor, there is no fixed
period of limitation for invoking jurisdiction under Article 226
and that each case should be considered on its own facts and
circumstances, thus allowing for a more liberal approach when
applying this doctrine. It is indeed beyond any doubt that the
doctrine is not a rigid rule but is rather a practice that is founded
on the exercise of sound judicial discretion.
28. In a much more rudimentary sense, it must also be borne
in mind that the cause of action in these set of circumstances
could have arisen and perhaps actually arose only after expiry of
a reasonable period, within which the cost of the Project was
expected to be recovered. The filing of the writ petition
immediately after the concession agreement and other
supporting agreements were entered into, would have been
highly premature and ill-advised, without giving a reasonable
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time to the Project proponent to recover the actual cost of the
Project.
29. In this vein, the High Court rightly observed that the plea
of delay lacks substance, as the commuters, including
Respondent 1, were justified in trusting that Noida would
protect their interests. However, in 2012, after learning that they
were being misled and subjected to an illegal toll based on an
audit report from NTBCL‘s Auditor and Chartered
Accountant—indicating that as of 31-5-2012, Rs 2340 crores
were still to be recovered from the public, and the recovery
period had extended from 30 years to 100 years—they were
prompted to immediately approach the High Court.
30. Furthermore, it must be acknowledged that the levying of
user fees or tolls by NTBCL constituted a continuing cause of
action, which was challenged by the Association of affected
commuters. An established exception to the defence of delay is
the presence of a continuous injury stemming from an ongoing
wrong. The plea of delay and laches cannot be raised in a case
of a continuing cause of action.
31. In our considered view, the challenge laid by Respondent
1 before the High Court, regarding the levying of toll or user
fees, being rooted in public interest and involving en masse
potential violations of fundamental rights of citizenry, warrants
thorough examination. Given that NTBCL‘s actions represented
a continuing cause of action, we concur with the High Court in
rejecting the hypertechnical objection of delay and laches.
(Underline supplied)

89. The Supreme Court in the case of Union of India v. Tarsem
Singh, reported in (2008) 8 SCC 648 has held as under :
4. The principles underlying continuing wrongs and
recurring/successive wrongs have been applied to service law
disputes. A ―continuing wrong‖ refers to a single wrongful act
which causes a continuing injury. ―Recurring/successive
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wrongs‖ are those which occur periodically, each wrong giving
rise to a distinct and separate cause of action. This Court in
Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar
Maharaj Sansthan explained the concept of continuing wrong
(in the context of Section 23 of the Limitation Act, 1908
corresponding to Section 22 of the Limitation Act, 1963): (AIR
p. 807, para 31)
― 31 . … It is the very essence of a continuing wrong that it is an
act which creates a continuing source of injury and renders the
doer of the act responsible and liable for the continuance of the
said injury. If the wrongful act causes an injury which is
complete, there is no continuing wrong even though the damage
resulting from the act may continue. If, however, a wrongful act
is of such a character that the injury caused by it itself continues,
then the act constitutes a continuing wrong. In this connection, it
is necessary to draw a distinction between the injury caused by
the wrongful act and what may be described as the effect of the
said injury.‖
5. In M.R. Gupta v. Union of India the appellant approached the
High Court in 1989 with a grievance in regard to his initial pay
fixation with effect from 1-8-1978. The claim was rejected as it
was raised after 11 years. This Court applied the principles of
continuing wrong and recurring wrongs and reversed the
decision. This Court held: (SCC pp. 629-30, para 5)
― 5 . … The appellant‘s grievance that his pay fixation was not in
accordance with the rules, was the assertion of a continuing
wrong against him which gave rise to a recurring cause of action
each time he was paid a salary which was not computed in
accordance with the rules. So long as the appellant is in service,
a fresh cause of action arises every month when he is paid his
monthly salary on the basis of a wrong computation made
contrary to rules. It is no doubt true that if the appellant‘s claim
is found correct on merits, he would be entitled to be paid
according to the properly fixed pay scale in the future and the
question of limitation would arise for recovery of the arrears for
the past period. In other words, the appellant‘s claim, if any, for
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recovery of arrears calculated on the basis of difference in the
pay which has become time-barred would not be recoverable,
but he would be entitled to proper fixation of his pay in
accordance with rules and to cessation of a continuing wrong if
on merits his claim is justified. Similarly, any other
consequential relief claimed by him, such as, promotion, etc.,
would also be subject to the defence of laches, etc. to disentitle
him to those reliefs. The pay fixation can be made only on the
basis of the situation existing on 1-8-1978 without taking into
account any other consequential relief which may be barred by
his laches and the bar of limitation. It is to this limited extent of
proper pay fixation, the application cannot be treated as time-
barred….‖
6. In Shiv Dass v. Union of India this Court held: (SCC p. 277,
paras 8 & 10)
― 8 . … The High Court does not ordinarily permit a belated
resort to the extraordinary remedy because it is likely to cause
confusion and public inconvenience and bring in its train new
injustices, and if writ jurisdiction is exercised after unreasonable
delay, it may have the effect of inflicting not only hardship and
inconvenience but also injustice on third parties. It was pointed
out that when writ jurisdiction is invoked, unexplained delay
coupled with the creation of third-party rights in the meantime is
an important factor which also weighs with the High Court in
deciding whether or not to exercise such jurisdiction.
*
10 . In the case of pension the cause of action actually continues
from month to month. That, however, cannot be a ground to
overlook delay in filing the petition. … If petition is filed
beyond a reasonable period say three years normally the Court
would reject the same or restrict the relief which could be
granted to a reasonable period of about three years.‖
7. To summarise, normally, a belated service related claim will
be rejected on the ground of delay and laches (where remedy is
sought by filing a writ petition) or limitation (where remedy is
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sought by an application to the Administrative Tribunal). One of
the exceptions to the said rule is cases relating to a continuing
wrong. Where a service related claim is based on a continuing
wrong, relief can be granted even if there is a long delay in
seeking remedy, with reference to the date on which the
continuing wrong commenced, if such continuing wrong creates
a continuing source of injury. But there is an exception to the
exception. If the grievance is in respect of any order or
administrative decision which related to or affected several
others also, and if the reopening of the issue would affect the
settled rights of third parties, then the claim will not be
entertained. For example, if the issue relates to payment or
refixation of pay or pension, relief may be granted in spite of
delay as it does not affect the rights of third parties. But if the
claim involved issues relating to seniority or promotion, etc.,
affecting others, delay would render the claim stale and doctrine
of laches/limitation will be applied. Insofar as the consequential
relief of recovery of arrears for a past period is concerned, the
principles relating to recurring/successive wrongs will apply. As
a consequence, the High Courts will restrict the consequential
relief relating to arrears normally to a period of three years prior
to the date of filing of the writ petition.

90. Accordingly, it is held that the Writ Petition cannot be dismissed on
the question of delay and laches because otherwise, it would amount to
perpetuating the illegality.
Whether Petitioner has Locus Standi to challenge the Constitutional
validity of amendment in Schedule II and IV of Rules, 1991

91. The Question of Locus Standi was decided by Supreme Court in the
case of S.P. Gupta v. Union of India, reported in 1981 Supp SCC 87 in
which it has been held as under :
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17. It may therefore now be taken as well established that where
a legal wrong or a legal injury is caused to a person or to a
determinate class of persons by reason of violation of any
constitutional or legal right or any burden is imposed in
contravention of any constitutional or legal provision or without
authority of law or any such legal wrong or legal injury or
illegal burden is threatened and such person or determinate class
of persons is by reason of poverty, helplessness or disability or
socially or economically disadvantaged position, unable to
approach the court for relief, any member of the public can
maintain an application for an appropriate direction, order or
writ in the High Court under Article 226 and in case of breach of
any fundamental right of such person or determinate class of
persons, in this Court under Article 32 seeking judicial redress
for the legal wrong or injury caused to such person or
determinate class of persons. Where the weaker sections of the
community are concerned, such as under trial prisoners
languishing in jails without a trial, inmates of the Protective
Home in Agra, or Harijan workers engaged in road construction
in the district of Ajmer, who are living in poverty and
destitution, who are barely eking out a miserable existence with
their sweat and toil, who are helpless victims of an exploitative
society and who do not have easy access to justice, this Court
will not insist on a regular writ petition to be filed by the public-
spirited individual espousing their cause and seeking relief for
them. This Court will readily respond even to a letter addressed
by such individual acting pro bono publico. It is true that there
are rules made by this Court prescribing the procedure for
moving this Court for relief under Article 32 and they require
various formalities to be gone through by a person seeking to
approach this Court. But it must not be forgotten that procedure
is but a handmaiden of justice and the cause of justice can never
be allowed to be thwarted by any procedural technicalities. The
court would therefore unhesitatingly and without the slightest
qualms of conscience cast aside the technical rules of procedure
in the exercise of its dispensing power and treat the letter of the
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public-minded individual as a writ petition and act upon it.
Today a vast revolution is taking place in the judicial process;
the theatre of the law is fast changing and the problems of the
poor are coming to the forefront. The court has to innovate new
methods and devise new strategies for the purpose of providing
access to justice to large masses of people who are denied their
basic human rights and to whom freedom and liberty have no
meaning. The only way in which this can be done is by
entertaining writ petitions and even letters from public-spirited
individuals seeking judicial redress for the benefit of persons
who have suffered a legal wrong or a legal injury or whose
constitutional or legal right has been violated but who by reason
of their poverty or socially or economically disadvantaged
position are unable to approach the court for relief. It is in this
spirit that the court has been entertaining letters for judicial
redress and treating them as writ petitions and we hope and trust
that the High Courts of the country will also adopt this pro-
active, goal-oriented approach. But we must hasten to make it
clear that the individual who moves the court for judicial redress
in cases of this kind must be acting bona fide with a view to
vindicating the cause of justice and if he is acting for personal
gain or private profit or out of political motivation or other
oblique consideration, the court should not allow itself to be
activised at the instance of such person and must reject his
application at the threshold, whether it be in the form of a letter
addressed to the court or even in the form of a regular writ
petition filed in court. We may also point out that as a matter of
prudence and not as a rule of law, the court may confine this
strategic exercise of jurisdiction to cases where legal wrong or
legal injury is caused to a determinate class or group of persons
or the constitutional or legal right of such determinate class or
group of persons is violated and as far as possible, not entertain
cases of individual wrong or injury at the instance of a third
party, where there is an effective legal-aid organisation which
can take care of such cases.
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18. The types of cases which we have dealt with so far for the
purpose of considering the question of locus standi are those
where there is a specific legal injury either to the applicant or to
some other person or persons for whose benefit the action is
brought, arising from violation of some constitutional or legal
right or legally protected interest. What is complained of in
these cases is a specific legal injury suffered by a person or a
determinate class or group of persons. But there may be cases
where the State or a public authority may act in violation of a
constitutional or statutory obligation or fail to carry out such
obligation, resulting in injury to public interest or what may
conveniently be termed as public injury as distinguished from
private injury. Who would have standing to complain against
such act or omission of the State or public authority? Can any
member of the public sue for judicial redress? Or is the standing
limited only to a certain class of persons? Or is there no one who
can complain and the public injury must go unredressed? To
answer these questions it is first of all necessary to understand
what is the true purpose of the judicial function. This is what
Prof. Thio states in his book on Locus Standi and Judicial
Review :
―Is the judicial function primarily aimed at preserving legal
order by confining the legislative and executive organs of
Government within their powers in the interest of the public
(jurisdiction de droit objectif) or is it mainly directed towards
the protection of private individuals by preventing illegal
encroachments on their individual rights (jurisdiction de droit
subjectif)? The first contention rests on the theory that courts are
the final arbiters of what is legal and illegal…. Requirements of
locus standi are therefore unnecessary in this case since they
merely impede the purpose of the function as conceived here.
On the other hand, where the prime aim of the judicial process is
to protect individual rights, its concern with the regularity of law
and administration is limited to the extent that individual rights
are infringed.‖
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We would regard the first proposition as correctly setting out the
nature and purpose of the judicial function, as it is essential to
the maintenance of the rule of law that every organ of the State
must act within the limits of its power and carry out the duty
imposed upon it by the Constitution or the law. If the State or
any public authority acts beyond the scope of its power and
thereby causes a specific legal injury to a person or to a
determinate class or group of persons, it would be a case of
private injury actionable in the manner discussed in the
preceding paragraphs. So also if the duty is owed by the State or
any public authority to a person or to a determinate class or
group of persons, it would give rise to a corresponding right in
such person or determinate class or group of persons and they
would be entitled to maintain an action for judicial redress. But
if no specific legal injury is caused to a person or to a
determinate class or group of persons by the act or omission of
the State or any public authority and the injury is caused only to
public interest, the question arises as to who can maintain an
action for vindicating the rule of law and setting aside the
unlawful action or enforcing the performance of the public duty.
If no one can maintain an action for redress of such public
wrong or public injury, it would be disastrous for the rule of
law, for it would be open to the State or a public authority to act
with impunity beyond the scope of its power or in breach of a
public duty owed by it. The courts cannot countenance such a
situation where the observance of the law is left to the sweet will
of the authority bound by it, without any redress if the law is
contravened. The view has therefore been taken by the courts in
many decisions that whenever there is a public wrong or public
injury caused by an act or omission of the State or a public
authority which is contrary to the Constitution or the law, any
member of the public acting bona fide and having sufficient
interest can maintain an action for redressal of such public
wrong or public injury. The strict rule of standing which insists
that only a person who has suffered a specific legal injury can
maintain an action for judicial redress is relaxed and a broad rule
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is evolved which gives standing to any member of the public
who is not a mere busy body or a meddlesome interloper but
who has sufficient interest in the proceeding. There can be no
doubt that the risk of legal action against the State or a public
authority by any citizen will induce the State or such public
authority to act with greater responsibility and care thereby
improving the administration of justice. Lord Diplock rightly
said in Rex v. Inland Revenue Commissioners :

―It would, in my view, be a grave lacuna in our system of
public law if a pressure group, like the federation, or even a
single public-spirited taxpayer, were prevented by outdated
technical rules of locus standi from bringing the matter to the
attention of the court to vindicate the rule of law and get the
unlawful conduct stopped.... It is not, in my view, a sufficient
answer to say that judicial review of the actions of officers or
departments of Central Government is unnecessary because they
are accountable to Parliament for the way in which they carry
out their functions. They are accountable to Parliament for what
they do so far as regards efficiency and policy, and of that
Parliament is the only judge; they are responsible to a court of
justice for the lawfulness of what they do, and of that the court
is the only judge.‖
This broadening of the Rule of locus standi has been largely
responsible for the development of public law, because it is only
the availability of judicial remedy for enforcement which invests
law with meaning and purpose or else the law would remain
merely a paper parchment, a teasing illusion and a promise of
unreality. It is only by liberalising the Rule of locus standi that it
is possible to effectively police the corridors of power and
prevent violations of law. It was pointed out by Schwartz and
H.W.R. Wade in their book on Legal Control of Government at
p. 354:
―Restrictive rules about standing are in general inimical to a
healthy system of administrative law. If a plaintiff with a good
case is turned away, merely because he is not sufficiently
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affected personally, that means that some government agency is
left free to violate the law, and that is contrary to the public
interest. Litigants are unlikely to expend their time and money
unless they have some real interest at stake. In the rare cases
where they wish to sue merely out of public spirit, why should
they be discouraged?‖
It is also necessary to point out that if no one can have standing
to maintain an action for judicial redress in respect of a public
wrong or public injury, not only will the cause of legality suffer
but the people not having any judicial remedy to redress such
public wrong or public injury may turn to the street and in that
process, the rule of law will be seriously impaired. It is
absolutely essential that the rule of law must wean the people
away from the lawless street and win them for the court of law.
19. There is also another reason why the Rule of locus standi
needs to be liberalised. Today we find that law is being
increasingly used as a device of organised social action for the
purpose of bringing about socio-economic change. The task of
national reconstruction upon which we are engaged has brought
about enormous increase in developmental activities and law is
being utilised for the purpose of development, social and
economic. It is creating more and more a new category of rights
in favour of large sections of people and imposing a new
category of duties on the State and the public officials with a
view to reaching social justice to the common man. Individual
rights and duties are giving place to meta-individual, collective,
social rights and duties of classes or groups of persons. This is
not to say that individual rights have ceased to have a vital place
in our society but it is recognised that these rights are
practicably meaningless in today‘s setting unless accompanied
by the social rights necessary to make them effective and really
accessible to all. The new social and economic rights which are
sought to be created in pursuance of the Directive Principles of
State Policy essentially require active intervention of the State
and other public authorities. Amongst these social and economic
rights are freedom from indigency, ignorance and discrimination
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as well as the right to a healthy environment, to social security
and to protection from financial, commercial, corporate or even
governmental oppression. More and more frequently the
conferment of these socio-economic rights and imposition of
public duties on the State and other authorities for taking
positive action generates situations in which a single human
action can be beneficial or prejudicial to a large number of
people, thus making entirely inadequate the traditional scheme
of litigation as merely a two-party affair. For example, the
discharge of effluent in a lake or river may harm all who want to
enjoy its clean water; emission of noxious gas may cause injury
to large numbers of people who inhale it along with the air;
defective or unhealthy packaging may cause damage to all
consumers of goods and so also illegal raising of railway or bus
fares may affect the entire public which wants to use the railway
or bus as a means of transport. In cases of this kind it would not
be possible to say that any specific legal injury is caused to an
individual or to a determinate class or group of individuals.
What results in such cases is public injury and it is one of the
characteristics of public injury that the act or acts complained of
cannot necessarily be shown to affect the rights of determinate
or identifiable class or group of persons : public injury is an
injury to an indeterminate class of persons. In these cases the
duty which is breached giving rise to the injury is owed by the
State or a public authority not to any specific or determinate
class or group of persons, but to the general public. In other
words, the duty is one which is not correlative to any individual
rights. Now if breach of such public duty were allowed to go
unredressed because there is no one who has received a specific
legal injury or who was entitled to participate in the proceedings
pertaining to the decision relating to such public duty, the failure
to perform such public duty would go unchecked and it would
promote disrespect for the rule of law. It would also open the
door for corruption and inefficiency because there would be no
check on exercise of public power except what may be provided
by the political machinery, which at best would be able to
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exercise only a limited control and at worst, might become a
participant in misuse or abuse of power. It would also make the
new social collective rights and interests created for the benefit
of the deprived sections of the community meaningless and
ineffectual.
20. Now, as pointed out by Cappelletti in Vol. III of his classic
work on Access to Justice at p. 520, ―The traditional doctrine of
standing ( legitimatio ad causam ) attributes the right to sue either
to the private individual who ‗holds‘ the right which is in need
of judicial protection or in case of public rights, to the State
itself, which sues in courts through its organs.‖ The principle
underlying the traditional rule of standing is that only the holder
of the right can sue and it is therefore, held in many jurisdictions
that since the State representing the public is the holder of the
public rights, it alone can sue for redress of public injury or
vindication of public interest. It is on this principle that in the
United Kingdom, the Attorney-General is entrusted with the
function of enforcing due observance of the law. The Attorney-
General represents the public interest in its entirety and as
pointed out by S.A. de Smith in Judicial Review of
Administrative Action (3rd Edn.) at p. 403, ―the general public
has an interest in seeing that the law is obeyed and for this
purpose, the Attorney-General represents the public‖. There is,
therefore, a machinery in the United Kingdom for judicial
redress for public injury and protection of social, collective,
what Cappelletti calls ―diffuse‖ rights and interests. We have no
such machinery here. We have undoubtedly an Attorney-
General as also Advocates General in the States, but they do not
represent the public interest generally. They do so in a very
limited field; see Sections 91 and 92 of the Civil Procedure
Code. But, even if we had a provision empowering the
Attorney-General or the Advocate-General to take action for
vindicating public interest, I doubt very much whether it would
be effective. The Attorney-General or the Advocate-General
would be too dependent upon the political branches of
Government to act as an advocate against abuses which are
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frequently generated or at least tolerated by political and
administrative bodies. Be that as it may, the fact remains that we
have no such institution in our country and we have therefore to
liberalise the Rule of standing in order to provide judicial
redress for public injury arising from breach of public duty or
from other violation of the Constitution or the law. If public
duties are to be enforced and social collective ―diffused‖ rights
and interests are to be protected, we have to utilise the initiative
and zeal of public-minded persons and organisations by
allowing them to move the court and act for a general or group
interest, even though, they may not be directly injured in their
own rights. It is for this reason that in public interest litigation
— litigation undertaken for the purpose of redressing public
injury, enforcing public duty, protecting social, collective,
―diffused‖ rights and interests or vindicating public interest, any
citizen who is acting bona fide and who has sufficient interest
has to be accorded standing. What is sufficient interest to give
standing to a member of the public would have to be determined
by the court in each individual case. It is not possible for the
court to lay down any hard and fast rule or any straitjacket
formula for the purpose of defining or delimiting ―sufficient
interest‖. It has necessarily to be left to the discretion of the
court. The reason is that in a modern complex society which is
seeking to bring about transformation of its social and economic
structure and trying to reach social justice to the vulnerable
sections of the people by creating new social, collective
―diffuse‖ rights and interests and imposing new public duties on
the State and other public authorities, infinite number of
situations are bound to arise which cannot be imprisoned in a
rigid mould or a procrustean formula. The Judge who has the
correct social perspective and who is on the same wavelength as
the Constitution will be able to decide, without any difficulty
and in consonance with the constitutional objectives, whether a
member of the public moving the court in a particular case has
sufficient interest to initiate the action.
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21. It is interesting to note that the concept of public interest
litigation had its origin in the United States and over the years, it
has passed through various vicissitudes in the country of its
origin. We do not propose to enumerate or examine various
decisions given by the Supreme Court of the United States from
time to time in regard to standing in public interest litigation, for
no useful purpose would be served by such exercise. Suffice it
to state that in that country, the strict requirement of legal
interest has been watered down. Justice Douglas said in Data
Processing Service v. Camp that ―the legal interest test goes to
the merits. The question of standing is different‖. Similarly
Justice Brennan, citing Flast , observed that ―the question is
whether the person whose standing is challenged is a proper
party to request an adjudication of a particular issue and not ...
whether the plaintiff had a legally protected interest which the
defendant ‘ s action invaded ‖ (emphasis supplied). This view also
found expression in Office of Communication of United Church
of Christ v. FCC wherein the standing of television viewers was
upheld with the following observations : Since the concept of
standing is ―one designed to assure that only one with a genuine
and legitimate interest can participate in a proceeding, we can
see no reason to exclude those with such an obvious and acute
concern as the listening audience‖. Vide article on ― Evolving
Trends in Locus Standi : Models for Social Justice
Dispensation ‖ by D.Y. Chandrachud. But of late, there has been
a slight regression in this dynamic approach. See U.S . v.

Richardson and Worth v. Seldin where the Supreme Court of
United States seems to have recoiled a little against expansion of
its judicial power.
22. So far as the United Kingdom is concerned, there have been
remarkable developments in this area in recent times largely due
to the dynamic activism of Lord Denning. The McWhirter case
and the three well known Blackburn cases clearly establish that
any member of the public having sufficient interest can maintain
an action for enforcing a public duty against a statutory or public
authority. We need not make a detailed reference to all these
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cases but it will be sufficient if we refer to the McWhirter case
and one of the three Blackburn cases . The McWhirter case is
reported in Attorney-General v. Independent Broadcasting
Authority . This was an action by McWhirter for injunction
against the Broadcasting Authority which was threatening to
show a film which did not comply with the statutory
requirements and the showing of which would therefore be
illegal. Lord Denning considered the question whether
McWhirter had locus standi to bring the action when leave to
bring a relator action was refused by the Attorney-General, and
answering this question in the affirmative, he said:
―We live in an age when Parliament has placed statutory duties
on government departments and public authorities — for the
benefit of the public — but has provided no remedy for the
breach of them. If a government department or a public
authority transgresses the law laid down by Parliament, or
threatens to transgress it, can a member of the public come to
the court and draw the matter to its attention?... I am of the
opinion that, in the last resort, if the Attorney-General refuses
leave in a proper case, or improperly or unreasonably delays in
giving leave, or his machinery works too slowly, then a member
of the public, who has sufficient interest , can himself apply to
the court itself.‖
Lord Denning held that McWhirter had sufficient interest to
bring the action since he had a television set for which he had
paid licence fee and his susceptibility would be offended like
that of many others watching television if the film was shown in
breach of the statutory requirements. It may be noticed that in
this case the duty which was sought to be enforced against the
Broadcasting Authority was one which the Broadcasting
Authority owed to the general public and not to any specific
individual or class or group of individuals. The same principle
was applied by Lord Denning in Rex v. Greater London
Council, Ex parte Blackburn to accord standing to Blackburn to
maintain an action for an order of prohibition preventing the
Greater London Council from allowing, contrary to law, the
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exhibition of pornographic films. Here again the duty owed by
the Greater London Council was to the general public and not to
any specific or determinate class or group of persons and there
was no one who could claim that a specific legal injury was
caused to him by the exhibition of pornographic films. But even
so Lord Denning held that Blackburn was entitled to maintain an
action because he had sufficient interest; he was a citizen of
London, his wife was a ratepayer and he had children who might
be harmed by the exhibition of pornographic films. The learned
Master of the Rolls emphasised that if Blackburn had no
sufficient interest, no other citizen had, and in that event no one
would be able to bring an action for enforcing the law and the
transgression of the law would continue unabated. The principle
on which the learned Master of the Rolls proceeded was
formulated by him in these words:
―I regard it as a matter of high constitutional principle that, if
there is good ground for supposing that a government
department or a public authority is transgressing the law, or is
about to transgress it, in a way which offends or injures
thousands of His Majesty‘s subjects, then anyone of those
offended or injured can draw it to the attention of the courts of
law and seek to have the law enforced, and the courts in their
discretion can grant whatever remedy is appropriate.‖
The House of Lords, of course, in Gouriet v. Union of Post
Office Workers took the view that the Attorney-General alone
can sue for enforcing the observance of the law and if he refuses
to give his consent to a relator action, such refusal was not
reviewable by the courts and without such consent, a member of
the public could not maintain his action. We do not think it
necessary to examine this decision because it has no binding
effect upon us. But we may point out that this decision has been
severely criticised by jurists in England and elsewhere. It is
clearly erroneous and shows the high watermark of abdication of
judicial power which is likely to stultify the development of
public law in the United Kingdom. There is however one
distinguishing feature which we must point out, namely, that the
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action in that case was a relator action and not an application for
a writ.
23. We would, therefore, hold that any member of the public
having sufficient interest can maintain an action for judicial
redress for public injury arising from breach of public duty or
from violation of some provision of the Constitution or the law
and seek enforcement of such public duty and observance of
such constitutional or legal provision. This is absolutely
essential for maintaining the rule of law, furthering the cause of
justice and accelerating the pace of realisation of the
constitutional objectives. ―Law‖, as pointed out by Justice
Krishna Iyer in Fertilizer Corporation Kamgar Union (Regd.) v.
Union of India ―is a social auditor and this audit function can be
put into action only when someone with real public interest
ignites the jurisdiction‖ (SCC p. 585). A fear is sometimes
expressed that if we keep the door wide open for any member of
the public to enter the portals of the court to enforce public duty
or to vindicate public interest, the court will be flooded with
litigation. But this fear is totally unfounded and the argument
based upon it is answered completely by the Australian Law
Reforms Commission in the following words : (SCC p. 587,
para 43)
―The idle and whimsical plaintiff, a dilettante who litigates for a
lark, is a specter which haunts the legal literature, not the
courtroom. [Prof.K.E. Scott : Standing in the Supreme Court : A
Functional Analysis (1973), p. 86]
A major expressed reason for limiting standing rights is fear of a
spate of actions brought by busybodies which will unduly
extend the resources of the courts. No argument is easier put,
none more difficult to rebut. Even if the fear be justified it does
not follow that present restrictions should remain. If proper
claims exist it may be necessary to provide resources for their
determination. However, the issue must be considered.
… Over recent years successive decisions of the United States
Supreme Court have liberalised standing so as to afford a
hearing to any person with a real interest in the relevant
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controversy. Surveying the result in 1973 Professor Scott
commented : (Op. cit, p. 673)
When the floodgates of litigation are opened to some new class
of controversy by a decision it is notable how rarely one can
discern the flood that the dissenters feared.
Professor Scott went on to point out that the liberalised standing
rules had caused no significant increase in the number of actions
brought, arguing that parties will not litigate at considerable
personal cost unless they have a real interest in a matter.‖
We wholly endorse these remarks of the Australian Law
Reforms Commission. We may add, with Justice Krishna Iyer
(SCC p. 585):―In a society where freedoms suffer from atrophy
and activism is essential for participative public justice, some
risks have to be taken and more opportunities opened for the
public-minded citizen to rely on the legal process and not be
repelled from it by narrow pedantry now surrounding locus
standi.‖ It is also interesting to note that in India, as in other
Commonwealth countries, the strict rule of standing does not
apply to a writ of quo warranto or a ratepayer‘s action against a
municipality, but there is no evidence that this has let loose the
floodgates of litigation in these areas. The time, money and
other inconveniences involved in litigating a case act as
sufficient deterrents for most of us to take recourse to legal
action, vide article of Dr S.N. Jain on Standing and Public
Interest Litigation .

92. The Petitioner is a practising Lawyer and is also aspiring to be
appointed as ADPO. When the validity of a Statutory Provision is under
challenge, then the question of Locus Standi becomes secondary.
Therefore, it is held that the petitioner has locus standi to challenge the
impugned amendment carried in Schedule II and IV of Rules, 1991.
Whether the impugned amendment is arbitrary in nature
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93. This Court has elaborately dealt with the arguments advanced by
Counsel for the Parties. The State has failed to prove intelligible
differentia having reasonable nexus with object sought to be achieved.
Even otherwise, the posts of CrPC Clerk/ Asstt. Grade III/APCD Grade
III are Ministerial and Clerical cadre posts having its independent channel
of Promotion and have no direct or indirect contact with Justice
Dispensation System. They are not required to adjudicate the rights of the
parties. They are not Advocates. Under these circumstances, it is held
that the amendment introduced in the year 2002 by which the Schedule II
and IV of Rules, 1991 were amended suffers from arbitrariness.
Furthermore, the State is the custodian and guardian of its
citizens/residents. It is the duty of the State to protect the life and liberty
of its citizens/residents. Not only the State functionaries are required to
act in accordance with law, but at the same time the Public
Prosecutor/Govt. Advocate should be an efficient and intelligible one
having experience of practising law as an Advocate so that the rights of
citizens/residents, as well as, the action of the State can be protected and
justified effectively in the Court of law. Therefore, the appointment of
persons from Ministerial/clerical cadre of Grade III to the post of ADPO
by promotion, will also be violative of Article 21 of Constitution of India.
Conclusion
94. For the reasons mentioned above, it is held that the amendment
done by State in Schedule II and IV of Rules, 1991 by Notification No. F-
3-68-99-B-3-2 dated 14-10-2002 published in Official Gazette on 18-10-
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2002 is ultra vires of Articles 14, 16 and 21 of Constitution of India.
However, it is also held that since, the persons who were already granted
promotion by virtue of impugned amendment were neither made a party
nor their promotions have been challenged, therefore, this judgment
would not adversely effect the promotion which have already taken place
prior to filing of this petition. However, no further promotions to the post
of ADPO shall take place.
95. Accordingly the petitions succeed and are hereby allowed. No
order as to costs.


(G. S. AHLUWALIA) (ANURADHA SHUKLA)
JUDGE JUDGE





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