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Court No. 1
Writ Petition No. 8732 of 2008 (M/B)

Pramod Kumar Dwivedi ....................Petitioner

vs.

State of U.P. and others ….............Respondents

Hon'ble Pradeep Kant, J.

Hon'ble Ritu Raj Awasthi, J.

Heard Sri O.P. Srivastava, learned counsel for the petitioner and learned
standing counsel for the State.
In pursunace of advertisement the petitioner was appointed as District
Government Counsel (Civil), Mahrajganj on 29.05.2006 and on completing
one year term he applied for renewal, on which District Magistrate called
report from District Judge. On 15.04.2008 petitioner was discontinued by the
State Government on the ground that the proposal for renewal has not been
received after which the petitioner filed writ petition no. 4881 (M/B) of 2008
in which the interim order was passed on 02.06.2008 and subsequently the
writ petition was disposed of on 06.08.2008 provided that petitioner shall be
allowed to continue as District Government Counsel (Civil) till his renewal of
term is considered. But before renewal of term could be considered, the State
Government amended the provisions of L.R. Manual on 13th August 2008. The
amendment so made permitted the State Government to make appointment
on the post of District Government Counsel under the proviso to paragraph
7.03 of the amended proviso of the L.R. Manual.
These very amendment which were made in the L.R. Manual became
subject matter of challenge in various writ petitions in which interim order
was passed by this Court, on 4th September 2008 (writ petition no. 7851(M/B)
of 2008) providing that the renewal of District Government Counsel shall be
considered in accordance with the unamended provisions of L.R. Manual and
shall not be considered or guided by the amended provisions thereof.
Since it was a case of renewal, therefore, interim order also directed
that the renewal of District Government Counsel shall be considered in
accordance with unamended provision of L.R. Manual.
After the stay order being granted by this Court on 4th September 2008
staying the operation of the amended provisions of L.R. Manual, the present
impugned order dated 8th September 2008 was passed by the State
Government, again exercising its power under proviso to Paragraph 7.03 as
amended in L.R. Manual and appointing the Respondent No.5 as District
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Government Counsel.
This Court has passed the interim order on 4th September 2008 staying
the aforesaid appointment directing that no appointment letter shall be issued
in favour of O.P. No.5 and in case appointment letter has been issued, he
shall not be allowed to function as such, henceforth.
State Government has given no reply to the statement of fact made in
paragraph 17 of the writ petition that there was already an stay order inforce
against the amended provision of L.R. Manual and that the impugned order
was passed in the presence of that stay order. It is obvious that the stay
order was passed by the Court on 4th September 2008 and the State
Government passed the impugned order on 08.09.2008 it cannot be
presumed that the State Government had no knowledge about the stay order.
Since the impugned order was passed during the existence of the stay
order of the amended provisions of the L.R. Manual, the same cannot be said
to be a valid order nor the same could be allowed to be executed. The order
passed under the provision, the operation of which was already stayed, thus
was not operative, and therefore no appointment under to Para 7.03, could
have been made, the order so passed in totally without authority.
We, therefore, for the aforesaid reason set aside the order dated 8th
September 2008 passed by the State Government and order dated
18.09.2008 passed by District Magistrate, Mahrajganj and provide that the
appointment on the post of District Government Counsel (Civil) Mahrajganj
may be considered in accordance with unamended provisions of L.R. Manual
at the earliest.
We may clarify that we have not touched the merit of the case and
matter would be considered by the State Government independently as per
his own discretion in accordance with rules.
Dt/- 16.11.2009
Im/-