Allahabad High Court
Justice Om Prakash Shukla and Rajan Roy
Anupam Mehrotra vs State Of U.P on 28 May 2025
Law Point:
JUDGEMENT
1. The petitioner a practicing Advocate of this Court has filed this writ petition seeking following reliefs:
“Wherefore, it is respectfully prayed that this Hon’ble Court may kindly be pleased to: –
(1) issue a writ, order or direction in the nature of quo warranto ousting the respondent no.7 from the office of the Law Officer of the State in this Hon’ble Court (Standing Counsel, Government of U.P. in this Hon’ble Court at Lucknow);
(2) issue a writ, order or direction in the nature of certiorari setting aside the appointment of respondent no.7 as the Law Officer of the State in this Hon’ble Court; and setting aside the renewal or the renewals of the said appointment, if any, after summoning the letter of the said appointment, and the letter or the letters of renewal of the said appointment, if any, from the Government of U.P.;
(3) issue a writ, order or direction in the nature of mandamus commanding the State of U.P. not to make any such appointment of the respondent no.7 as aforesaid;
(4) issue a writ, order or direction in the nature of mandamus commanding the respondent no.7 not to appear as an advocate in this Hon’ble Court as long as his wife (respondent no.8) is a Judge of this Hon’ble Court; and the respondent no.7 may kindly be so commanded without prejudice and in addition to the decisions or orders that may be taken or passed by the Disciplinary Committee of the Bar Council of Uttar Pradesh in Case No.482/2024;
(5) issue a writ, order or direction in the nature of mandamus commanding the respondent nos.2 and 3 (High Court at Allahabad through its Registrar-General and Senior Registrar, High Court at Lucknow) to strike out the respondent no.7, Mr Sandeep Chandra from the Roll of Advocates of this Hon’ble Court (“A.O.R. List”) and keep the respondent no.7 struck out from the said Roll of Advocates till his wife (respondent no.8) is a Judge of this Hon’ble Court; and the respondent nos. 2 and 3 may kindly be so commanded without prejudice and in addition to the decisions or orders that may be taken or passed by the Disciplinary Committee of the Bar Council, Uttar Pradesh in Case No.482/2024;
(6) issue a writ, order or direction in the nature of mandamus commanding the Disciplinary Committee of the Bar Council of Uttar Pradesh to forthwith issue notice to the Advocate-General for the State of Uttar Pradesh under S.35 (2) of the Advocates Act, 1961 in Case No.482/2024: Anupam Mehrotra v. Sandeep Chandra. which is pending after being registered on the complaint of the petitioner dated 4.10.2024 against the respondent no.7 (Annexure No.3, Writ Petition) and to decide the said Case No.482/2024, including the prayer for interim relief therein, at the earliest, for which this Hon’ble Court may kindly fix such time frame as may be deemed appropriate;
(7) issue a writ, order or direction in the nature of mandamus commanding the holding of such an inquiry as may be deemed appropriate by this Hon’ble Court so as to find out the facts and circumstances leading to the unlawful appointment of respondent no.7 by the Government of U.P. as the Law Officer of the State in this Hon’ble Court in spite of the fact that the respondent no.7 is barred by law from practising as an advocate in this Hon’ble Court as long as the wife of respondent no.7 (the respondent no.8) is a Judge of this Hon’ble Court;
(8) issue a writ, order or direction in the nature of mandamus commanding the State of U.P. to recover from the respondent no.7 the public money paid by the Government of U.P. to the respondent no.7 for the period the respondent no.7 has illegally held the office of the Law Officer of the State in this Hon’ble Court in spite of his wife (xxxxxxxxxxxx, J.) being a Judge of this Hon’ble Court; or, in the alternative, recover the said public money personally from the officers of the Government of U.P. and the persons involved in the affairs of the State responsible for the making of the said illegal appointment of respondent no.7 in spite of his wife being a Judge of this Hon’ble Court and to take such other stringent action against the said officers and persons involved in the affairs of the State as may be directed by this Hon’ble Court;
(9) issue such other writs, orders or directions as this Hon’ble Court may deem appropriate in the facts and circumstances of the case; and
(10) award costs in favour of the petitioner.”.
2. The facts of the case, in brief, are that the opposite party no. 7 is a Standing Counsel for the State of Uttar Pradesh for the High Court at Lucknow and is husband of opposite party no. 8 who is a sitting Judge of this Court stationed at Lucknow. Both of them were enrolled as Advocates with the U.P. Bar Council in the year 1996 and practiced at Allahabad High Court sitting at Lucknow. The opposite party no. 8 was a counsel for the Government of Uttar Pradesh for the High Court sitting at Lucknow before her elevation as an Additional Judge of the Allahabad High Court on 15.11.2016. She became a permanent Judge on 23.03.2018. Both opposite parties no. 7 and 8 reside at HD177, Sector – I, Jankipuram, Lucknow.
The opposite party no. 7 has been a Standing Counsel for the State of Uttar Pradesh for the High Court at Lucknow for the past several years and continues to work as such. The date of his appointment/engagement has not been mentioned in the writ petition.
3. In nutshell, the contention of petitioner who argued in person was as under:
Rule 6 of the Rules Governing Advocates framed by the Bar Council of India with the approval of Hon’ble the Chief Justice of India prohibits the opposite party no. 7 from entering appearance, acting, pleading or practicing in any way before this Court at Lucknow as his wife opposite party no. 8 is a sitting Judge. The fact that the opposite party no. 7 practices at Lucknow where his wife is a sitting Judge amounts to unprofessional and unbecoming conduct on the part of the opposite party no. 7. In view of the aforesaid, he was disqualified to be appointed as a Standing Counsel but the State of U.P. while engaging him ignored these aspects of the matter as also the provisions contained in Clause (4) of Appendix B contained in general instructions relating to the appointment and tenure of Law Officers of the State in the High Court which is referable to para 5.02 of the Legal Remembrancer’s Manual (hereinafter referred to as ‘LR Manual’) according to which the Governor may appoint any qualified legal practitioner as a Law Officer whereas opposite party no. 7 by virtue of violation of Rule 6 of the Rules Governing Advocates was not qualified to practice as Standing Counsel of the Government of U.P. at the High Court sitting at Lucknow.
It was also his submission that the proper exercise prior to or during engagement as Law Officer was not undertaken in terms of the provisions of LR Manual and the decision of Hon’ble the Supreme Court of India in the case of State Of Punjab & Anr vs Brijeshwar Singh Chahal & Anr; 2016 (6) SCC 1. The appointment and engagement of opposite party no. 7 as Standing Counsel is violative of Para 5.02 of LR Manual and Clause (4) of Appendix B thereof. The State Government which is the biggest litigant before the High Court has ignored the said disqualification of opposite party no. 7 to practice in the High Court as long as his wife is a sitting Judge thereof while appointing him as Standing Counsel. The opposite party no. 7 holds the office of Law Officer of the State without authority of law.
A complaint bearing Case No. 482 of 2024 was filed by the petitioner before the U.P. Bar Council on 04.10.2024 wherein a notice was issued to opposite party no. 7 on 01.01.2025 but here-again the Bar Council failed to comply the provisions of Section 35 (2) of the Advocates Act, 1961 which enjoin upon it to issue notice to the Advocate General in such matters and such omission has disabled the Advocate General from discharge of his constitutional and statutory duties as envisaged
under Article 165 (2) of the Constitution of India, Section 35 (3), 35 (5) of the Advocates Act, 1961 and para 2.02 of LR Manual.
Right to practice and right to appear are distinct. While right to practice is regulated by the Advocates Act, 1961, etc., the right to appear in Court is purely within the domain of the Courts.
The complaint before the U.P. Bar Council is a separate matter whereas the reliefs prayed herein vide reliefs no. 1, 2, 3, 4, 5, 7 and 8 are not intertwined with the said proceedings.
He invited our attention to Annexure-1 which is a photograph of the Gate of the residence where opposite parties no. 7 and 8 reside to drive home the point that on the Gate itself the nameplates of opposite parties no. 7 and 8, both, are displayed mentioning their respective designations as a Judge and an Advocate. He then referred to Annexure-2 to the writ petition which according to him is a copy of downloaded extract of Roll of Advocates of the High Court at Lucknow Bench relating to opposite party no. 7 which mentions his office as existing at the residence where both opposite parties no. 7 and 8 are said to be residing. In this context he referred to Rule 36 of the Rules Governing Advocates made by the Bar Council of India under Section 49 (1) (c) of the Advocates Act, 1961 according to which inter alia an advocate shall not solicit work or advertise, either
directly or indirectly. His signboard or nameplate should be of a reasonable size. The signboard or nameplate or stationery should not indicate that he is or has been associated with any person or organization or with any particular cause or matter or that he specialize in any particular type of work or that he has been a Judge or an Advocate General.
Relying on the said provision he contended that the documents annexed as Annexures 1 and 2 clearly demonstrated that the opposite party no. 7 was brazenly advertising his relationship with opposite party no. 8 as he has mentioned his office at the very place where the opposite party no. 8 resides and his nameplate is also displayed on the same Gate with the word ‘Advocate’ written under it, by the side of nameplate of opposite party no. 8.
For all these reasons according to him the opposite party no. 7 holds the office of Law Officer of the State which is a public office as referred by Hon’ble the Supreme Court in the case of Kumari Shrilekha Vidyarthi Etc. vs State Of U.P. And Ors; (1991) 1 SCC 212 without authority of law and his engagement/ appointment by the State Government ignoring the provisions of Rule 6 of the Rules Governing Advocates is also patently illegal and barred by law.
He also raises issue of professional ethics and propriety in this regard.
4. For all these reasons, he has sought the final reliefs prayed for in the writ petition and as an interim measure has sought various interim reliefs including putting in abeyance the registration of opposite party no. 7 in the Roll of Advocates of the High Court and to restrain him from functioning as Law Officer of the State and from appearing as an Advocate before the High Court as long as opposite party no. 8 is a Judge of this Court.
5. Mr. Gaurav Mehrotra, learned counsel for the High Court submitted that Rule 6 of the Rules Governing Advocates framed by the Bar Council of India have been misconstrued by the petitioner. In this context he placed reliance upon a Division Bench judgment of the Delhi High Court in the case of Mathews J. Nedumpara And Ors. vs Shri Fali S. Nariman And Ors.; AIR 2019 Delhi 184 wherein it has been categorically held that by an amendment to Rule 6 it has been made clear that word ‘Court’ did not mean the entire Court but it only refers to a particular Court where relative of a Lawyer is a Presiding Judge, meaning thereby, the said Rule only prohibits an Advocate from appearing, pleading, etc. in the Court where any of his relations as mentioned therein is a Presiding Judge and does not refer to the entire Court. According to him, the very basis of the petition is, therefore, a misunderstanding about legal position revolving around Rule 6. He stated that relief no. 5 which relates to his clients should not be granted to the petitioner.
6. Mr. Shailendra Kumar Singh, learned Chief Standing Counsel, on the other hand, invited our attention to Appendix B to the LR Manual, firstly Clause (2) thereof which deals with eligibility for appointment of Law Officers of the State in the High Court, to submit that the opposite party no. 7 fulfilled the eligibility criteria and was a qualified legal practitioner, therefore, he was validly appointed. He laid great emphasis upon Clause (6) of the said Appendix according to which appointment of any legal practitioner as Law Officer is only a professional engagement terminable at will of either side and accordingly the Governor reserves the right to terminate the engagement of any Law Officer at any time without assigning any cause. Subject to this right, the Law Officer shall ordinarily be appointed for a term of one year in the first instance which term can be renewed for a period not exceeding three years at a time. Relying on the said provision, he submitted that the office held by opposite party no. 7 being one which is terminable by will, a writ of quo warranto would not lie in respect thereof. He further submitted that the engagement of opposite party no. 7 is a purely contractual and professional engagement for this reason also a writ of quo warranto as has been prayed for does not lie. He placed reliance upon the judgment in the case of State Of U.P. And Ors. Etc vs U.P. State
Law Officers Association And and others; 1994 (2) SCC 204 (para 14 and 15) wherein Hon’ble the Supreme Court has held that the government and the public bodies engaged the services of the lawyers purely on a contractual basis either for a specified case or for a specified or an unspecified period. Although the contract in some cases prohibited the lawyers from accepting private briefs, the nature of the contract did not alter from one of professional engagement to that of employment. The lawyer of the Government or a public body was not its employee but was professional practitioner engaged to do the specified work. The client engages a lawyer for personal reasons and is at liberty to leave him also for the same reasons. He is under no obligation to give reasons for withdrawing his brief from his lawyer. His submission was that in view of the nature of office as explained by the Supreme Court a writ of quo warranto would not lie respect thereof, especially as, it was a temporary engagement terminable at any time. He also places reliance upon a decision of Hon’ble the Supreme Court in State Of U.P. And Anr vs Johri Mal; 2004 (4) SCC 741 (para 37 and 42) where it had been held firstly that by holding a post of district counsel or the public prosecutor, neither a status is conferred on the incumbent nor does he hold a civil post. Secondly the LR Manual provides for renewal but it contains executive instructions which even do not meet the requirements of clause (3) of Article 166 of the Constitution. Legal Remembrancer Manual is not a
law within the meaning of Article 13 of the Constitution of India. His submission was that reliance on LR Manual to seek a writ of quo warranto, certiorari and other reliefs was misplaced and misconceived. He also also relied on the Division Bench judgment of Delhi High Court in Mathews J. Nedumpara (supra) as was relied by Mr. Gaurav Mehrotra.
7. Mr. Singh emphasized the fact that the judgment in Johri Mal (supra) was one rendered by Three Judge Bench of Hon’ble the Supreme Court wherein the decision of Kumari Shrilekha Vidyarthi (supra) had also been taken into consideration.
8. In response to the arguments of the learned counsel for the opposite parties, Mr. Anupam Mehrotra submitted that the judgment of the Division Bench of Delhi High Court in the case of Mathews J. Nedumpara (supra) on which reliance has been placed by the counsel for the opposite parties had been rendered sub silentio and, therefore, was not a binding precedent. He invited our attention to certain paragraphs of the judgment in Johri Mal (supra) to contend that the issue therein was very different and that Kumari Shrilekha Vidyarthi (supra) was followed in the said case. He then took us through a compilation of judgments, namely, Rabindra Kumar Nayak vs. Collector, Mayurbhanj, Orissa and others; 1992 (2) SCC 627, The Bar Council of Maharashtra vs. M.V. Dabholkar and others; 1976 (2) SCC 291, Bar Council of India vs. High Court of Kerala;
2004 (6) SCC 311, Ex-Captain Harish Uppal vs. Union of India and another; 2003 (2) SCC 45, Dr. Amarjit Singh Ahluwalia vs. The State of Punjab and others; 1975 (3) SCC 503, Param Singh and another vs. State of U.P. and others; 2019 (1) UPLBEC 556, Kashi Nath Mishra vs. Chancellor, University of Allahabad and others; AIR 1967 Allahabad 101 (V 54 C 26) and a pending Public Interest Litigation bearing PIL Civil No. 16009 of 2017; Mahendra Singh Pawar vs. State of U.P. and others and emphasized upon not only alleged illegality in the appointment of opposite party no. 7 and his practicing before the High Court at Lucknow but also on ethical aspects involved therein.
9. We have heard the petitioner in person and learned counsel for the opposite parties and perused the records.
10. One of the basis for filing this petition is Rule 6 of the Rules Governing Advocates under Chapter II thereof relating to Standards of Professional Conduct and Etiquette referable to Section 49 (1) (c) of the Advocates Act, 1961 and the proviso thereto. These Rules have been made with the approval of Hon’ble the Chief Justice of India. Rule 6 thereof on which reliance has been placed by Mr. Anupam Mehrotra reads as under:
“6. An advocate shall not enter appearance, act, plead or practise in any way before a court, Tribunal or Authority mentioned in Section 30 of the Act, if the sole or any member thereof is related to the advocate as father, grandfather, son, grand-son, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-inlaw, son-in-law, brother-in-law daughter-in-law or sister-in-law. For the purposes of this rule, Court shall mean a Court, Bench or Tribunal in which above mentioned relation of the Advocate is a Judge, Member or the Presiding Officer.”
11. The proviso was added by Resolution No. 11 of 91 dated 16.02.1991 as is evidenced hereinabove. This provision came up for consideration before a Division Bench of Delhi High Court in Mathews J. Nedumpara (supra) in somewhat similar circumstances where an eminent Lawyer who was related to a sitting Judge of the Supreme Court of India was practicing and in that context the proviso to Rule 6 was put to challenge by the petitioner. The Division Bench of Delhi High Court did not accept the contention of the petitioner and after considering Rule 6 referred hereinabove inter alia held that explanation and the meaning of the word ‘Court’ clearly stipulated that it does not mean the entire Court but a particular Court where relative of a Lawyer is a Presiding Judge. It repelled the contention that declaration should be given to bring within the ambit of the word ‘Court’ the entire Court where the relative of a Lawyer is a Judge.
12. We have gone through the said decision and we do not find any reason to take any other view as to the meaning and interpretation of the said provision. The Explanation which has been added subsequently strikes a balance between the right of a person to practice legal profession while at the same time preserving the requirement of transparency and integrity in the justice delivery system, both individual and institutional,
13. Article 19 (1) (g) of the Constitution of India confers a fundamental right to practice a profession. No doubt there is no such absolute right and reasonable restrictions can be put in this regard. Right to practice as an Advocate is regulated by the Advocates Act, 1961 and Rules made thereunder. Section 30 of the Advocates Act, 1961 confers statutory right upon an Advocate to practice in any Court subject of course to other provisions of the said Act. We have already considered Rule 6 of the Rules mentioned in the Advocates Act, 1961 in this regard.
14. Further, we have carefully gone through the entire writ petition and we do not find any incident having been mentioned therein where the opposite party no. 7 may have taken advantage of his relationship with the opposite party no. 8 so as to constitute professional or any other kind of misconduct. Though a copy of his appointment letter has not been annexed, the petitioner stated that opposite party no. 7 has been a Standing Counsel for more than five years. Not a single incident has been mentioned where he may have tried to take advantage of the position of opposite party no. 8. The opposite party no. 8 has been a Judge of this Court since 2016 i.e. for almost nine years but even in her context nothing has been stated in the writ petition about any incident having taken place where she may have done something so as to give advantage to opposite party no. 7 in any manner. The writ petition is based on assumptions or inferences drawn by the petitioner based on the relationship of opposite parties no. 7 and 8 without any specific incident or fact having been pleaded with proof to establish professional misconduct on the part of opposite party no. 7. Scandalous and uncalled for allegations have been made in this regard.
15. In any case in view of enunciation of the law by the Division Bench of the Delhi High Court regarding the scope of Rule 6 in the case of Mathews J. Nedumpara (supra) with which we concur, we are of the view that at least the said Rule cannot form basis for grant of any relief as prayed for in this petition. Mr. Anupam Mehrotra did not elaborate/demonstrate as to how the said decision was rendered sub silentio. We do not find it to be so.
16. The Legal Remembrancer’s Manual does not have statutory force even though it is the Manual under which appointments are made of Law Officers and their engagements are held, as has been held by Hon’ble the Supreme Court in the case of Johri Mal (supra). Relevant para 42 of the said case reads as under:
“42. It may be true that the Legal Remembrancers’ Manual provide for renewal but it contains executive instructions which even do not meet the requirement of Clause (3) of Article 166 of the Constitution. The Legal Remembrancer’s Manual is not a law within the meaning of Article 13 of the Constitution of India.”
17. The document annexed as Annexure-2 refers to AOR number of the opposite party no. 7 B/S0106/2012 is of 2012, There is no averment in the writ petition that the details mentioned in the said document have been uploaded as per any information provided by opposite party no. 7 recently, or after elevation of opposite party no. 8 as a Judge and/or after appointment of opposite party no. 7 as a State Law Officer. The petitioner before making such serious allegations as have been made in the petition should have ascertained the facts in this regard, but instead of doing so he seems to have drawn an inference from the information mentioned in Annexure-2 that because it mentions the address of office of opposite party no. 7 as his residence, therefore, he is running an office in the residence in which the opposite party no. 8 also resides. He has not conducted any inquiry or made any effort to find out as to when the data mentioned in Annexure 2 was provided for uploading on the High Court Portal. In this context, Mr. Rajesh Tiwari, learned Additional CSC says that the opposite party no. 7 has his office at C-3/21, Sulabh Awas Yojna, Sector – J, Jankipuram, Kursi Road, Lucknow. He has made this statement on the basis of inquiry from the opposite party no. 7 who is also a Standing Counsel of the State of UP in this Court at Lucknow. In absence of specific pleadings as to when this data was provided and the period to which it relates, considering the fact that the AOR number of opposite party no. 7 is of 2012 when neither the opposite party no. 8 was a Judge nor the opposite party no. 7 was a State Law Officer, we cannot draw an inference merely based of the said document that the opposite party no. 7 runs his office at the aforesaid residence as on date, assuming that he did so prior to elevation of opposite party no. 8.
18. It is not the case of the petitioner that he has visited the office of the opposite party no. 7 which is being run at his residential address nor that he has any other material or information to that effect. There is no foundation in the writ petition that petitioner has seen opposite party no. 7 holding office at the residence where both opposite parties no. 7 and 8 reside. It is not the case of the petitioner that opposite party no. 7 is engaged in conducting private cases at the High Court at Lucknow. At least nothing is mentioned in the writ petition nor any details of his private cases have been mentioned. The writ petition has been filed merely on basis of inferences drawn by the petitioner from certain documents, which, in our opinion, are not sufficient for us to interfere in exercise of our extraordinary discretionary jurisdiction, especially for issuance of a writ of quo warranto and also a writ of certiorari or for grant of other reliefs as prayed.
19. Further, when Mr. Rajesh Tewari, learned Additional Chief Standing Counsel for the State of U.P. made a statement before us that in fact opposite party no. 7 has his office at C-3/21, Sulabh Awas Yojna, Sector – J, Jankipuram, Kursi Road, Lucknow, the petitioner appearing in person promptly responded by saying that there is no office at the said address and on being asked as to how he could say so he stated that he had seen a lock there and nothing else. If it was so, then why this has not been pleaded in the writ petition? If the petitioner knew that the opposite party no. 7 claims to have an office on the address given above and the petitioner had visited the same and saw a lock on the door, why did he not mention this fact in the writ petition? This is intriguing. Moreover, merely because there is a lock, how an inference can be drawn that there is no office, but we leave it at that, as, irrespective of the statement made by Mr. Rajesh Twwari, we are of the opinion that the petitioner having filed the writ petition asserting a fact that opposite party no. 7 was running an office in the residence of opposite party no. 8 the burden was on him to prove it so as to persuade us to admit the writ petition. The pleadings and whatever documents have been annexed are not sufficient for us to do so for the reasons given hereinabove.
20. As regards the nameplate of the opposite party no. 7 by the side of the nameplate of opposite party no. 8 on the Gate of their residence, as is seen in the photographs annexed as Annexure-1, as claimed, no doubt, under the name of opposite party no. 7 ‘Advocate’ is mentioned, but the name plate is very small. Petitioner has not made any enquiry as to whether the house where the opposite parties no. 7 and 8 reside is owned by opposite party no. 7 or 8 or by both nor any averment has been made in this regard in this petition. Based on this photograph petitioner alleges violation of Rule 36 of the Rules Governing Advocates. The writ petition does not mention the date when this photograph was taken. The photograph annexed as Anneuxre-1 showing the nameplate of opposite party no. 7 on the Gate of the premises where opposite parties no. 7 and 8 reside by itself cannot be a ground for issuance of a writ of quo warranto, assuming that it could be issued in the context of a State Law Officer in view of the submissions of Mr. Shailendra Kumar Singh, learned Chief Standing Counsel as regards the nature of office held by opposite party no. 7, nor for issuance of a writ of certiorari. This by itself in the absence of any other pleadings and proof does not lead us to a conclusion that opposite party no. 7 is brazenly advertising his relationship with opposite party no. 8. We cannot possibly draw an inference based only on these facts, without there being something more, that the opposite party no. 7 has conducted a professional or other misconduct.
21. We confronted the counsel for the UP Bar Council in the light of the submissions made by Mr. Anupam Mehrotra regarding pendency of his complaint and non-issuance of notice to the Advocate General under section 35 (2) of the Advocates Act, 1961 whereupon he stated that the Bar Council and the Disciplinary Committee if ordered will conclude the proceedings as per law. It is then that we asked Mr. Anupam Mehrotra, the petitioner in person as to whether he was confining himself to Relief No. 7 or wanted to press the other reliefs? The reason we put this question to him was, in the event he wanted to press the other reliefs, then, we will have to enter into issues and record our observations/findings thereon which may have a bearing on the complaint proceedings. Mr. Anupam Mehrotra categorically stated that he wanted to press all the reliefs. It is only for this reason that we have considered all the issues because the petitioner in person is a practicing Advocate and obviously he would understand that in doing so we might touch upon issues which may be involved in the proceedings before the Bar Council or its Disciplinary Committee. He having made a categorical statement that he will press all the reliefs, we have proceeded to consider the matter accordingly. On a reading of the complaint of the petitioner against opposite party no. 7 we find that the complaint is based on same facts and grounds which have been raised herein and we have already considered the grounds raised in the petition and, for the reasons already mentioned, in our opinion prima facie professional misconduct is not made out. We see no reason to issue a direction as has been prayed vide relief no. 7. The fine distinction sought to be drawn by the petitioner between the right to practice and the right to appear before the Court is not of much relevance/consequence in this regard.
22. Questions have been raised about validly of the appointment of opposite party no. 7 on the ground of violation of Rule 6 which we have already dealt with earlier and in view of what has been stated by us this cannot be a ground for invalidating his appointment. No deficiencies in his qualification or any other mandatory statutory requirement has been pointed out. Averments made in para 6 (3) of the writ petition are the petitioner’s subjective assessment of opposite party no. 7 as a Lawyer and cannot be made the basis for challenging or invalidating an appointment made by the State. It is not disclosed in the petition as to whether opposite party no. 7 was appointed singularly or along with several other persons. We do not find any ground to exercise our extraordinary jurisdiction to invalidate opposite party no. 7’s appointment as State Law Officer.
23. No doubt there is a public element in the discharge of functions by a Law Officer of the State, as observed by Hon’ble the Supreme Court in the case of Kumari Shrilekha Vidyarthi (supra) and other decisions relied by the petitioner, but these observations were in the context as to whether it was a matter falling in private law domain or public law domain and this was in the context as to whether Chapter III of the Constitution of India would be attracted and a petition under Article 226 would be maintainable or not. These observations by themselves do not mean that the office which the opposite party no. 7 holds, is of such a nature that a writ of quo warranto would lie against it, especially in view of the law on the subject by a Coordinate Bench of this Court in the case of Dr. Neetu Singh vs. State of U.P. and others; 2019 SCC OnLIne All 5871 and as enunciated by Hon’ble the Supreme Court in the case of B. Srinivasa Reddy; Karnataka Urban Water Supply & Drainage Board Employees’ Association & Others; AIR SC 3106 as to the essential characteristics of Public Office in the context of a writ of quo warranto that the position must be created by Constitution, legislature or through authority conferred by legislature, portion of sovereign power of Government must be delegated to position, duties and powers must be defined, directly or impliedly, by legislature or through legislative authority, duties must be performed independently without control or superior power other than law, and position must have some permanency and continuity and also in view of the provisions contained in Appendix B of the LR Manual on which reliance has been placed by learned Chief Standing Counsel, especially as, though such appointments to the office of Law Officer of a State are made under the LR Manual, at least in the state of UP, the manual is nothing but a compendium of executive instructions as is mentioned in Para 1.01 thereof and it does not qualify to be a law under Article 13 of the Constitution of India as held by a three Judge bench of Hon’ble the Supreme Court in the case of Johri Mal (supra). Therefore, it cannot be said that the office in question has been created or appointment is made thereon under some charter or statute or the Constitution of India nor other characteristics required for considering issuance of a writ of quo warranto are satisfied. Further, such an office is terminable at will, as is mentioned in Class (4) of Appendix B. We are, therefore, not persuaded to accept the contention of the petitioner, Mr. Anupam Merathra, that a writ of quo waranto would lie against holder of such office. In any case, even if a writ of quo warranto was maintainable, we do not find any valid ground for issuance of such a writ or for that matter for grant of any of the reliefs prayed for. We in this context rely on the observations of Hon’ble the Supreme Court in Statesman (Private) Ltd vs H. R. Deb & Ors; AIR 1968 SC 1495 that – “The High Court in a quo warranto proceeding should be slow to pronounce upon the matter unless there is a clear infringement of the law”.
24. Reports and authorities relied by the petitioner cannot be applied bereft of the factual context of a case, which in this case has already been discussed earlier. Having gone through the said reports, in view of what has been discussed hereinabove, we are of the opinion that they do not help the petitioner’s cause.
25. Before parting, we cannot help but mention about certain averments made in the writ petition which according to us are not only in bad taste but amount to scandalizing the office of a Judge and are also derogatory to both opposite parties no. 7 and 8. Importantly, no basis has been laid down for such recitals in the writ petition especially in view of what has been discussed hereinabove as regards the purport of Rule 6, etc. In para 5 of the petition, it has been stated that illegal action of the Bar Council of U.P. in not proceeding with the complaint of the petitioner and the benefit unlawfully conferred by the Government of U.P. on opposite party no. 7 – “are attributable to the fact that his wife is a Judge of this Hon’ble Court (xxxxxxxxxxx). Mr xxxxxxxxxxx is deriving unlawful advantages and benefits due to the undue influence of his wife, xxxxxxxxxxxxxx, J., which xxxxxxxxxxxxxxx, J. exerts as a Judge of this Hon’ble Court. The stream of justice is being, thus, polluted. Needless to say that as Mr xxxxxxxxxxx and xxxxxxxxxxxxxx, J. are married to each other, and are living in the same house, xxxxxxxxxxxx, J. is a party to, and the beneficiary of, her husband’s misconduct. MR XXXXXXXXX AND XXXXXXXXXX, J. BRAZENLY ADVERTISE THAT BOTH ADVOCATE AND JUDGE ARE AVAILABLE AT THE SAME HOUSE, which is, inter alia, evident from the NAMEPLATES at their residence (“Shrikhand”, HD-177, Sector-I, Janki Puram, Lucknow)”. As stated, we do not find any specific instance or detail as to how and in what manner the opposite party no. 8 has facilitated any benefit to opposite party no. 7 or vice-a-versa. Such sweeping and derogatory averments in respect of opposite party no. 7 and the opposite party no. 8 who holds a constitutional office, that too, since 2016 i.e. for the past nine years, are absolutely uncalled for. There is no basis on facts nor proof which could justify the said averments in the writ petition.
26. A writ petition drafted by a Lawyer especially one who is appearing in person and has 30 years practice behind him should not contain such intemperate language as has been used herein. We pointed out this fact to the petitioner towards the end of the arguments and he stated that he will keep this in mind in future, but, what about the fodder he has supplied for rumour mongers in the corridors and outside it, by making such averments. He should ponder over it seriously, introspect as to whether he is utilizing his intellectual capacity in the right direction. What purpose is sought to be served by making such averments, without any basis? We say no more in the solemn hope that the petitioner will introspect, take corrective measures and shall utilize his legal acumen and intellect for achieving higher goals.
27. For the reasons given hereinabove, we decline to exercise our extraordinary jurisdiction in the matter and dismiss the writ petition at the admission stage.
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