Gujarat High Court
Amita Sureshbhai Shah & vs State Of Gujarat on 18 September, 2017
Author: S.G. Shah
Bench: S.G. Shah
C/SCA/16546/2017 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16546 of 2017
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AMITA SURESHBHAI SHAH & 1....Petitioner(s) Versus STATE OF GUJARAT....Respondent(s) ========================================================== Appearance:
MR KB PUJARA, ADVOCATE for the Petitioner(s) No. 1 - 2 MR PRAKASH JANI, ADDL.ADVOCATE GENERAL WITH MS MANISHA L SHAH, GOVERNMENT PLEADER WITH MR MITESH AMIN, PUBLIC PROSECUTOR for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE S.G. SHAH Date : 18/09/2017 CAV ORDER
1. Petitioners have sought indulgence of this court under Articles 14, 16, 19 and 226 of the Constitution of India so also the provisions of the Law Officers (Appointment and Conditions of Service) and Conduct of Legal Affairs of the Government Rules, 2009 alleging that their termination by impugned order is wrongful.
2. It is undisputed fact that petitioners were appointed as Assistant Government Pleaders;
whereas petitioner No.2 was also appointed as Additional Public Prosecutor for the purpose of conducting the cases on behalf of the State of Gujarat before this court. It is the case of the petitioners that they have sincerely and efficiently discharged their duties as such for Page 1 of 27 HC-NIC Page 1 of 27 Created On Mon Sep 18 23:56:22 IST 2017 C/SCA/16546/2017 CAV ORDER many years, however, by impugned notification/order dated 30.5.2017, their services have been abruptly discontinued without assigning any reasons and without giving any opportunity of hearing. Based upon such basic averments, petitioners have prayed for following directions in paragraph 22 as under:-
"a. to admit this petition and to allow the same at the admission stage by issuing Notice for Final Disposal;
b. to quash and set-aside the impugned Notification/Order dated 30-5-2017 passed by the respondent as per Annexure-C in so far as the present petitioners are concerned;
c. PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to stay the operation of the impugned Notification/Order dtd.30-5-2017 passed by the respondent as per Annexure-C qua the present petitioners and be pleased to permit them to discharge duties and to draw remuneration as Law Offiers as they were doing prior to the passing of the impugned Notification/Order;
d. PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED, to restrain the respondents from making any further appointment of Law Officers in place of the petitioners;
e. PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED, to direct the respondent to produce on record of this petition, for perusal of the Hon'ble Court, the Reports of the Committee consisting of the Legal Rememberancer, the Ld. Advocate General and the Ld. Additional Advocate General which has reviewed the performance of Page 2 of 27 HC-NIC Page 2 of 27 Created On Mon Sep 18 23:56:22 IST 2017 C/SCA/16546/2017 CAV ORDER all the Law Officers of the High Court at the interval of every six months, under Rule-13 of the Law Officers (Appointment and Conditions of Service) and Conduct of Legal Affairs of the Government Rules, 2009, with advance copies thereof to the petitioners;
f. PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED, to direct the respondent to produce on record of this petition, for perusal of the Hon'ble Court, the original file containing the notings and reasons for discontinuation of the petitioners by the impugned Notification/Order dtd. 30-5-2017, with advance copies thereof to the petitioners;
g. to direct the reinstatement of the petitioners as Law Officers in the High Court with all the consequential benefits including monetary benefits as if the impugned Notification/Order was never passed;
h. to grant any other appropriate and just relief/s including costs of this petition;"
3. Therefore, the first prayer of the petitioners is to the effect that the petition be allowed at the admission stage by issuing notice for final disposal. Therefore, even petitioners were pressing for final hearing at admission stage. When respondents have remained present and argued the matter at length at admission stage and objected even to admit the matter, the petitioners have submitted that it is nothing, but evidence of bias and selectiveness against the petitioners, where Additional Advocate General, Government Pleader and Public Prosecutor have remained present on first day and argued the Page 3 of 27 HC-NIC Page 3 of 27 Created On Mon Sep 18 23:56:22 IST 2017 C/SCA/16546/2017 CAV ORDER matter at length. However, on the contrary, the petitioners should appreciate the concern by the respondents, who were ready with the subject and the matter and submitted their case on first day itself so as to even avoid a single adjournment. Otherwise also, every matter/petition needs to be decided at the earliest. Petitioners cannot allege that why in particular matter, other side is ready with the matter and argued it immediately and opposed even admission, because, ultimately, it would be the decision of the court, whether to admit the matter or to dismiss it. So far as admission is concerned, if respondents being State authorities, are regularly remaining present and accepting the service of notice because of service of advance copy of pleadings upon the Government Pleader's office, it cannot be said that they should not be ready with the matter or question that why they have argued particular matter on first day without service of notice upon them. Even in case of Caveator - respondents remained present and are permitted to submit their case. To that extent, the grievance of the petitioners has not substance.
4. So far as merits of the petition is concerned, it is contended by the petitioners that petitioner No.1 was appointed as Assistant Government Pleader ('AGP', for short) in October, 2011 and continued as such until impugned order dated 30.5.2017; whereas, respondent No.2 was Page 4 of 27 HC-NIC Page 4 of 27 Created On Mon Sep 18 23:56:22 IST 2017 C/SCA/16546/2017 CAV ORDER initially appointed as Assistant Government Pleader on 4.2.2009 and also appointed as Additional Public Prosecutor ('APP', for short) w.e.f. 30.4.2012 and continued as such until the impugned dated 30.5.2017 was passed.
5. If we peruse such appointment orders at Annexure-A, it becomes clear that initial appointment orders of petitioner No.1, is not produced on record, but the last and only order produced on record is dated 29.11.2013, whereby, petitioner No.1 was appointed for one year i.e. upto 28.11.2014 as AGP; whereas, though similar order also appoints petitioner No.2 on the same post till 28.11.2014, there is one another order appointing him as APP on 30.4.2012 for the period of two years i.e. upto 29.4.2014. Similarly, copy of order dated 1.5.2015 is also on record, which confirms appointment of both the petitioners as AGP till 31.12.2015. When there is no appointment order in favour of any of the petitioners except above orders and thereby, the term of appointment of the petitioners have come to an end on 31.12.2015 in absence of any further order of appointment as APP. So far as appointment of petitioner No.2 as APP is concerned, it was also only upto 29.4.2014 and therefore, from 1.1.2016, both the petitioners are working as such without having express appointment orders in their favour because of the Government Resolution for the purpose being G.R. dated 29.10.2015, which confirms that generally, when there is time gap Page 5 of 27 HC-NIC Page 5 of 27 Created On Mon Sep 18 23:56:22 IST 2017 C/SCA/16546/2017 CAV ORDER in appointing new AGPs on completion of terms of previously appointed AGPs, then, the AGPs, who are already working as such, may continue their services as such and they may be paid as per their entitlement in such period, though rule provides that there would be no payment after term of the AGP is over. Rule 6(4) permits the Government to pass any such resolution, when it supports with the clause that "save as otherwise directed by the Government". The G.R. is also clear that it is meant for limited purpose to see that there will not be issue regarding payment to the AGPs, whose term is over, but allowed to work as AGPs till new panel is approved or till new appointment is made. However, while doing so, it is also made clear that the AGP whose term is over, has to continue his services till other appointment order is issued by the Government. The term of such AGP would be considered as over automatically when new panel is being approved and new appointments are made. Therefore, in the case of the petitioners prima facie it seems that after 31.12.2015, their services were continued only because of G.R. dated 29.10.2015 and therefore, practically, term of the petitioners has come to an end on 1.1.2016 and therefore, if there is no order of any further appointment of the petitioners, and if there are orders confirming appointment of other advocates as AGPs, then, term of the petitioners would automatically come to an end because they have no Page 6 of 27 HC-NIC Page 6 of 27 Created On Mon Sep 18 23:56:22 IST 2017 C/SCA/16546/2017 CAV ORDER lien on such post for lifetime.
6. However, it is contended by both the petitioners that the impugned order dated 30.5.2017 is illegal and arbitrary inasmuch as before passing such order, they were not offered opportunity to represent their case and that respondents have not followed the provisions of rules while passing the impugned order. The impugned order is at Annexure-C, which confirms that the Government has decided to discontinue the service of as many as 11 AGPs. Though no reason is assigned in such order, as discussed herein above, in fact the petitioners have continued their services after 31.12.2015 on their own and they were paid pursuant to G.R. dated 29.10.2015 and they have taken the benefit of such G.R. so far as the continuity of their service till 31.5.2017 is concerned, thereby after 1.1.2016, even petitioners have never bothered to see that there is an order either by way of reappointment as such or continuity of extension of their previous appointment order. Therefore, when petitioners have taken advantage of G.R. dated 29.10.2015, now, they cannot say that the disclosure in such G.R., which are beneficial to them, are accepted by them, but they should be allowed to ignore other provisions of same G.R. and they may be granted relief, irrespective of specific disclosure in such G.R. that term after the completion of their official term as per office order, would be temporary and Page 7 of 27 HC-NIC Page 7 of 27 Created On Mon Sep 18 23:56:22 IST 2017 C/SCA/16546/2017 CAV ORDER that they would not be entitled to be on panel of the AGPs once regular AGPs are appointed. Thereby, if other advocates are appointed as AGPs and if there is no order in favour of the petitioners, then, certainly, their services would come to an end on the day when new panel is approved and published. Since details of new appointment has not been disclosed on record, it is undisputed fact that there is no order to continue the services of petitioners, but when respondents have decided to discontinue the services of as many as 11 AGPs, the Government has issued impugned order and declared that service of 11 AGPs, including the present petitioners would come to an end with immediate effect. Therefore, now, it is clear and certain that respondents do not want to continue the services of these 11 AGPs, including present petitioners.
7. Before considering other legal submissions, it is to be recollected here that though the words "service" and "appointment" are used for engaging the advocates like petitioners as AGPs or APPs, the basic fact is quite clear that it is not a job or service in strict sense, inasmuch as it is an appointment of an advocate by a litigant. But, when the litigant is State Government, and when they need more AGPs, they have framed certain policies and rules regarding their appointment and payment to them. Therefore, in principle, it is the relationship between the Page 8 of 27 HC-NIC Page 8 of 27 Created On Mon Sep 18 23:56:22 IST 2017 C/SCA/16546/2017 CAV ORDER litigant and the advocate and not a Government job or service in its strict sense and therefore, irrespective of rules in any nature by the respondents, the petitioners cannot claim that the client should continue their services for a longtime. To that extent, though, in general, there is a principle even in service jurisprudence that there should not be arbitrariness or discrimination or there must be reasonable opportunity offered to the person/s against whom some decision is taken; in fact, when the relationship between the petitioners and the respondents are not of employee and employer respectively, but practically it is a relationship between an advocate and client, all other rules and regulations, though may be applicable to the issues for which they are framed, it cannot regulate the decision of the client to continue particular advocate only because of such rules. To that extent, in fact, the rules are not meant for regularising the activities and thereby, services of the petitioners, but practically, it is meant for regularising the activities of officers of the Government so as to see that different departments and officers of the Government may not engage other advocates and there may not be irregularity or selectiveness in treatment i.e. payment and other issues, including payment and benefits to be extended to the advocates, who are selected to work as such.
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8. The petitioner No.2 has also contended that his services have been appreciated by several courts and that considering his ability and service, in addition to his regular appointment as AGP, he was assigned the special work by the Government and he was specially appointed by Ahmedabad District Panchayat, wherein he was paid fees of Rs.50,000/- over and above the normal fees being Rs.5,000/- paid by the Government for such cases. Thereby, it can be considered as reward. Similarly, he was also appointed by the State Election Commission from time to time and thus, there is no complaint so far as his ability and service are concerned and therefore, it is submitted that the termination of his service is illegal. Thereby, petitioner No.2 has realised and admitted that he is not in a fixed Government job as a salarised person, and thereafter accepted other matters on payment basis. Thus, when he was accepting the work from different departments and charging special fees for different work, thereby, practically, though the words appointment and service are being used for AGPs, practically, they are to be termed as advocate, engaged by the Government and who are identified as AGPs and therefore, by all means, they are rendering their professional services on contractual basis to their client, which is State in such case.
9. However, petitioners have placed much reliance on the rules, namely, Law Officers Page 10 of 27 HC-NIC Page 10 of 27 Created On Mon Sep 18 23:56:22 IST 2017 C/SCA/16546/2017 CAV ORDER (Appointment and Conditions of Service) and Conduct of Legal Affairs of the Government Rules, 2009, which defines the post like Government Pleaders, including AGPs, who are particularly termed as Law Officers, including Advocate General and others, so also defining Public Prosecutor as defined u/s.24 of the Code of Criminal Procedure, 1973. So far as appointment of law officers are concerned, the requirement or discretion of appointment is clearly provided under sub-rule(1),(3),(4) and (8) of Rule 4, which are relevant and reads thus:-
"4. Appointment of Law Officers -
(1) The Government shall appoint such number of Law Officers to conduct cases on its behalf before the various Courts and Tribunals as it may consider necessary.
(2) xxx (3) The appointment of Government Pleader, Additional Government Pleader and Assistant Government Pleader for the High Court of Gujarat shall be made from the panel of advocates prepared by the Secretary and RLA, Legal Department in consultation with the Advocate General and the Additional Advocate General.
(4) The appointment of Public Prosecutor and Additional Public Prosecutor in the High Court of Gujarat shall be made as per sub-section(1) of section 24 of the Code of Criminal Procedure, 1973.
(5) xxx
(6) xxx
(7) xxx
(8) The appointment of Law Officers shall be
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made in accordance with the qualifications
prescribed in rule 5."
10. Whereas, qualification and eligibility for
being appointed as AGP is provided in sub-rule (2) of Rule 5, which reads as under:-
"5. Qualifications and eligibility -
(2) No person shall be qualified for appointment as Additional Government Pleader or Additional Public Prosecutor in the High Court or District Courts unless -
(a) he has at least seven years standing as an advocate of the High Court or District Court of Gujarat;
(b) he is not more than 55 years of age; and
(c) he is an income tax assessee for a period of at least three years prior to his appointment."
11. Whereas, more emphasis has been placed by the petitioners upon Rule 6 amongst which both the parties have relied upon different sub-rules and therefore, Rule 6 is also reproduced, which reads thus:-
"6. Terms of the office of Law Officers:
(1) Subject to the other provisions contained in these rules and to any general or special orders issued by the Government in this behalf, a Law Officer shall hold office for a term of three years and shall be eligible for re-appointment after the expiry of such term and for such period as may be decided by the Government from time to time.
(2) Notwithstanding anything contained in sub-
rule(1) but subject to sub-rule(4) of rule 13, a Law Officer shall be liable to be removed from his office at any time if he is guilty of any act or conduct which, in the opinion of the Government, is incompatible with his duty as a Law Officer or where the performance of such law officer is not found satisfactory. The decision of the Government in such Page 12 of 27 HC-NIC Page 12 of 27 Created On Mon Sep 18 23:56:22 IST 2017 C/SCA/16546/2017 CAV ORDER cases shall be final.
(3) Save as otherwise provided in sub-rule (2) and subject to the provisions of sub-rule(1), the appointment of Law Officers shall not be terminated except by three months notice. A Law Officer may resign by giving three months notice to the Government of his intention to do so.
(4) Save as otherwise directed by the Government, no Law Officer whose term of office has expired shall after the expiry thereof be entitled to appear on behalf of the Government in civil or criminal proceedings which may them be pending, nor shall he be entitled to any remuneration in respect of any work done by him and after such expiry in any such proceedings.
(5) In case of a gross negligence, misconduct and fraud committed in conducting cases, the Government shall be entitled to initiate legal action against the Law Officer even after the termination of his appointment."
12. The petitioners have also relied upon the provisions of Rule 13, which reads as under:-
"13. Review of Performance:
(1) The performance of the Law Officers in the High Court and Tribunals shall be reviewed by a Committee consisting of Remembrancer of Legal Affairs, Advocate General and the Additional Advocate General once in every six months.
(2) The performance of Law Officer in the District Courts shall be reviewed by the District Collector, the District Superintendent of Police and the District Government Pleader jointly once in every six months and District Collector shall send his report to the Government in Legal Department for necessary action.
(3) All the Law Officers shall attend the review meeting with all necessary material, if called for.
(4) The Government shall take into consideration, the review of performance so made under sub-rule(1) or (2), as the case may be, for Page 13 of 27 HC-NIC Page 13 of 27 Created On Mon Sep 18 23:56:22 IST 2017 C/SCA/16546/2017 CAV ORDER further continuance or retention of the concerned law officer whose performance has not been found satisfactory."
13. The bare reading of above provision makes it clear that appointment of AGPs as per necessity of the Government is to be made from the panel of advocates prepared by the Secretary, Legal Department in consultation with Advocate General and Addl.Advocate General. For eligibility as APP, advocate must have completed 7 years standing as an advocate in High Court and he should not be more than 55 years of age and he must be an income-tax assessee for a period of alteast three years prior to his appointment.
14. Though sub-rule(1) of Rule 6 provides that the Law Officer shall hold office for a term of three years and shall be eligible for re- appointment upon expiry of such term for such period as may be decided by the Government from time to time, it cannot be said that therefore, such appointment must be continued irrespective of requirement and necessity of the Government to continue the service of any particular advocate as such. It is settled legal position that no provision can be read in isolation of other relevant provisions. Therefore, provision of sub- rule(2) is equally relevant, which provides that the Law Officer shall be liable to be removed from his office at any time if he is guilty of any act or conduct, which in the opinion of the Government, is incompatible with his duty as a Page 14 of 27 HC-NIC Page 14 of 27 Created On Mon Sep 18 23:56:22 IST 2017 C/SCA/16546/2017 CAV ORDER Law Officer or where the performance of such Law Officer is not found satisfactory. It is also made clear that the decision of the Government in such cases shall be final.
15. Based upon such provision, it is emphasized by the petitioners that they cannot be removed before completion of three years and without having a decision that their performance is not satisfactory or that they are guilty of any misconduct, submitting that when their services were continued beyond three years after first appointment, then, it cannot be said that their performance is unsatisfactory and by all means, there is no allegation whatsoever that petitioners are guilty or have involved in any misconduct.
16. However, the facts are altogether different herein inasmuch as such provision would be applicable in the case of termination of contract during the period of contract and not in a case wherein contract of continuing services of AGPs have not been renewed considering the necessity of such AGPs by the Government. Therefore, the service rules would be applicable only when someone is having an existing contract or appointment in his favour. It is undisputed fact that after completion of last contract, ending on 31.12.2015, there is no fresh contract or appointment in favour of the petitioners and therefore, such rules would not be applicable in Page 15 of 27 HC-NIC Page 15 of 27 Created On Mon Sep 18 23:56:22 IST 2017 C/SCA/16546/2017 CAV ORDER the present case.
17. Though the decision is clear as discussed above, further emphasis was placed on sub-rules (3) and (4) of Rule 6. However, it is clear that such sub-rule would come into play only if case of AGPs whose appointment pursuant to contract is alive and not to the AGPs whose term of contract and thereby contract, has come to an end and their services are continued, that too on payment basis only because of G.R. dated 29.10.2015 with a specific reason that litigants, including other petitioners against the Government and the Government authorities may not have to suffer for want of procedural delay in appointing new AGPs.
18. Therefore, even though sub-rule(3) of Rule 6 provides that the appointment of law officers shall not be terminated except by three months' notice, and that Law Officers may resign by giving three months' notice to the Government of his intention to do so, practically, such condition is applicable during the period of appointment and contract and not in the cases where contract is not renewed.
19. In fact, on completion of period of contract or appointment, practically, though services of such AGP comes to an end, the statutory rules in form of sub-rule(4) of Rule 6 provides that in such cases, no law officer shall be entitled to appear on behalf of the Government after term of Page 16 of 27 HC-NIC Page 16 of 27 Created On Mon Sep 18 23:56:22 IST 2017 C/SCA/16546/2017 CAV ORDER his office has expired and nor shall he be entitled to any remuneration in respect of any work done by him after such expiry, only because of the G.R. dated 29.10.2015, when it was decided by the Government that services of the AGPs, whose term have come to an end, may continue to work as such till appointment of regular AGPs and therefore, it cannot be said that it is extension of period of contract or appointment and therefore, provisions of sub-rule(1) of Rule 6 would be applicable in those cases. I have reason to say so, because in G.R. dated 29.10.2015 while allowing such AGPs to continue their service till regular AGPs are appointed, it is made clear that on completion of their term, even if they are allowed to continue to work as such, their term is to be considered as expired automatically and that on confirmation of new panel, the appointment of all advocates in old panel, would also automatically come to an end. Thereby, if in the new panel, name of any of the advocate, who was otherwise selected and appointed as per old panel, is not included, it is clear that his appointment is not renewed and it would mean that his services are not required by the Government and therefore, he has no lien on such post.
20. In view of above discussion, when term of office of the petitioners has already expired on 31.12.2015, and when their names are not included in the new panel, their appointment is to be treated as cancelled automatically w.e.f.
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31.12.2015 though they are entitled to the
benefit of G.R. dated 29.10.2015, which is only to safeguard their remuneration part against the provision of sub-rule (4) of Rule 6, but with clarity that though they may be paid for the work done by them, their contract is to be treated as expired as per the actual disclosure in the contract.
21. It is also an undisputed fact that though pursuant to the amendment in such rule in the year 2016, now, AGPs are getting fixed amount as retainership, practically, they are not salarised officers of the Government, but they are working as independent advocates on behalf of the Government and getting their professional charges as approved by the Government per case handled by them. It is also undisputed fact that apart from appearing against the Government, they are free to appear for any other private litigants and thereby, they are not in service of the respondent - Government, but they are simply engaged as professionals by the Government for its work and therefore, when such appointment is periodic, and when Government has decided to discontinue the professional service of any such advocate as AGP, since it is a relationship between the litigant and the his advocate, the court cannot impose or direct the respondent - State that it must continue the professional services of particular advocate.
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22. It is submitted by the petitioners that when petitioner No.2 was engaged by different authorities and paid even higher charges than approved charges by the Government, there can never be a complaint about his performance and therefore, action of the respondents in terminating the contract of the petitioners by impugned order without following the provisions of Rule 6(3), is unwarranted. Though Rule 6(3) provides for issuance of three months' notice before terminating the services of law officer, the language of such rule makes it clear that such notice is required only if appointment, which is in force is to be terminated before the period of expiry of such appointment. Thereby, in present case, if at all the petitioners are to be terminated before 31.12.2015, then, certainly notice for termination needs to be issued before three months' of termination. However, in the present case, the period of contract/appointment of petitioners have already come to an end on 31.12.2015 and therefore, no notice is necessary.
23. Though the position is very much clear as discussed herein above, the petitioners are relying upon the decision of Hon'ble Supreme Court of India in the case of Kumari Shrilekha Vidyarthi Vs. State of U.P. & Ors. reported in AIR 1991 SC 537 wherein though the Hon'ble Supreme Court has observed that the appointment of District Government counsel by the State Government cannot be termed only as a Page 19 of 27 HC-NIC Page 19 of 27 Created On Mon Sep 18 23:56:22 IST 2017 C/SCA/16546/2017 CAV ORDER professional engagement and that such appointment is at the sweet will of the Government, which can be terminated at any time, without existence of any cogent reason during the subsistence of the termination; the fact remains that, in the present case, there is no termination of the petitioners during the subsistence of their term, but their term was already over on 31.12.2015 and they were allowed to continue their work till the impugned order only because of G.R. dated 29.10.2015, which also confirms that on completion of such arrangement, they are not entitled to continue against the requirement and necessity by the Government. It seems that in such cited case, when Government has tried to replace all the law officers throughout the State, in order to streamline the conduct of the Government cases, the Hon'ble Supreme Court has no option, but to observe that it would be too much to assume that every Government counsel in all the districts of the State, are required to be replaced, which confirms that there was specific and typical evidence before the court to come to a particular conclusion and to that extent, it is clear that when there is no such activity by the State in the present case, but at the same time it is quite clear that, even after the initial appointment, the relationship between the respondents is purely contractual and therefore, when there is no legal right in absence of contract, there cannot be any relief Page 20 of 27 HC-NIC Page 20 of 27 Created On Mon Sep 18 23:56:22 IST 2017 C/SCA/16546/2017 CAV ORDER in favour of the petitioners. However, it cannot be ignored that the case of Shrilekha Vidyarthi (supra) relates to the District Government counsel and not with reference to the AGPs selected for appearing before the High Court. In any case, the later judgment of Hon'ble Supreme Court of India in the case of State of U.P. Vs. U.P. State Law Officers' Assn. reported in (1994)2 SCC 204, the decision in the case of Shrilekha Vidyarthi (supra) has been specifically distinguished by holding that it is not applicable to the case of AGPs engaged for appearing before the High Court. The relevant observations and decision of the Hon'ble Supreme Court in such case are required to be recollected, which reads as under:-
"Legal profession is essentially a service-oriented profession. The lawyer of the Government or a public body was not its employee but was a professional practitioner engaged to do the specified work, though the lawyers on the full-time rolls of the government and the public bodies are described as their law officers. It is precisely for this reason that In the case of such law officers, the saving clause of Rule 49 of the Bar Council of India Rules, waives the prohibition imposed by the said rule against the acceptance by a lawyer of a full-time employment.
The relationship between the lawyer and his client is one of trust and confidence. 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. The lawyer, in turn is not an agent of his client but his dignified, responsible spokesman. (Paragraph 14) This relationship between the lawyer and the private Page 21 of 27 HC-NIC Page 21 of 27 Created On Mon Sep 18 23:56:22 IST 2017 C/SCA/16546/2017 CAV ORDER client is equally valid between him and the public bodies. (Paragraph 15) The method of appointment is indeed not calculated to ensure that the meritorious alone will always be appointed or that the appointments made will not be on considerations other than merit. In the absence of guidelines, the appointments may be made purely on personal or political considerations, and be arbitrary. This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. (Paragraph 19) In the present case none of the 26 officers had any right to hold the office on the date of their removal, even under the initial terms of appointment which stipulated the contractual period.
The case of the District Government Counsel with which the decision in Shrilekha Vidyarthi was concerned was different. The appointment of DGC is not part of the spoils system. Having been selected on merit and for no other consideration, they are entitled to continue in their office for the period of the contract of their engagement and they can be removed only for valid reasons. The people are interested in their continuance for the period of their contracts and in their non substitution by those who may come in through the spoils system. It is in these circumstances that this Court held that the wholesale termination of their services was arbitrary and violative of Article 14 of the Constitution. The ratio of the said decision can hardly be applied to the appointments of the law officers in the High Court whose appointment itself was arbitrary and was made in disregard of Article 14 of the Constitution as pointed out above. What is further, since the appointment of District Government Counsel is made strictly on the basis of comparative merit and after screening at different levels, the termination of their services is not consistent with the public interests. We are, therefore, of the view that the High Court committed a patent error of law in setting aside the order dated 23-7-1990 terminating the services of the respondent law officers. (Paragraph 20) The selection of Brief Holders is not made after open competition. Their appointment is purely at the discretion of the State Government. The Brief Page 22 of 27 HC-NIC Page 22 of 27 Created On Mon Sep 18 23:56:22 IST 2017 C/SCA/16546/2017 CAV ORDER Holders are further appointed to handle that work which cannot be attended to by the Government Advocate and Chief Standing Counsel. No salary or any other kind of monthly remuneration is payable to them. They are paid per brief handled by them. They are not barred from private practice or from accepting cases against the Government. It will thus be apparent that their appointment is in supernumerary capacity. It is necessitated because there may be work which cannot be attended to by the Government Advocate and the Chief Standing Counsel. They are not assured of any regular work much less any regular fee or remuneration. They -get briefs only if the Government Advocate and Chief Standing Counsel are over worked and not otherwise. They are like ad hoc counsel engaged for doing a particular work when available. Their only qualification is that they are on the panel of the counsel to be so appointed for handling the surplus work. We are, therefore, at a loss to understand as to how any fault can be found with the Government if the Government has now thought it fit to abolish the said system and to appoint each time special counsel for special cases in their place. (Paragraph 21)"
24. Thereby, in such judgment, Hon'ble Supreme Court of India has, after considering the nature of legal profession so also the issue regarding engagement of lawyers by Government or public bodies, and concept of lawyer - client relationship, held that Government or public bodies may put an end to the services of any law officer at any point of time, but more particularly, when termination of any such law officer is over, he has no lien or right whatsoever to claim that he has got absolute privilege and right to continue as such when Government does not want to continue his service, since such law officers are not in regular service and payroll of the Government, but they are engaged as professionals to extend their Page 23 of 27 HC-NIC Page 23 of 27 Created On Mon Sep 18 23:56:22 IST 2017 C/SCA/16546/2017 CAV ORDER services though such service etc. are regularised by some rules, because such rules are practically meant for regularising the activities and payment to such professionals. Because such appointment cannot be deemed to be appointment to any office or post, but only professional engagement, which may be terminable by other side at will. Therefore, pursuant to such decision, there is no force in the submission of the petitioners that in view of decision in Shrilekha Vidyarthi (supra), they are entitled to reliefs claimed by them.
25. Considering the overall factual and legal position as discussed herein above, when term of the petitioners' contract has already come to an end on and from 1.1.2016, in my view, there is no need to issue notice of termination before impugned order.
26. It is also submitted by the petitioners that when Rule 13 provides that performance of the AGPs are to be reviewed by the Advocate General and the Addl.Advocate General once in every six months', the court should call upon the report of such review to ascertain that when there is no negative report against the petitioners, there cannot be termination of their services, because as per Rule 13(4), such review of performance is to be considered for further continuation or retention of the concerned law officer and it would be open for the Government to cancel the Page 24 of 27 HC-NIC Page 24 of 27 Created On Mon Sep 18 23:56:22 IST 2017 C/SCA/16546/2017 CAV ORDER appointment of concerned law officer/s, whose performance is not found satisfactory. Therefore, it is submitted that if review of the petitioners work is never recorded as unsatisfactory, then, they may not be terminated abruptly as is done by such impugned order. However, I do not find any substance in such submission also for the reasons recorded in previous paragraphs that such contingencies are applicable only during the continuation of regular contract or appointment and thereby, it would not be applicable once contract is over. Therefore, there is no reason to call for report of review to verify the performance of the petitioners. It is quite clear when we consider all the rules, G.R. and issue involved in this petition that once term/contract of the petitioners are over, no rules would be applicable to them, unless their contracts are renewed. In any case, considering the relationship between the parties, when it cannot be said that petitioners are in regular job, thereby on pay-roll of the respondents, respondents cannot be directed by judicial order to continue the services of particular advocate for their cases, because by all means, it would be the decision of the client to engage a particular advocate to safeguard his interest, wherein the court has no role to play. Such concept has been confirmed by the Hon'ble Supreme Court of India in the case of State of U.P. (supra).
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27. In view of what is discussed herein above, I do not see any reason to grant any interim relief as prayed for in paragraphs 22 (c) to (g), which are quoted herein above. Though petitioners have pleaded that they have personally tried to convince and request the concerned officer/s of the Government to reconsider their decision, but the Government has failed to appreciate their submissions; such activity would not change the legal position, which is discussed herein above, so as to grant any relief/s.
28. It is also clear and obvious that non-renewal of contract is not limited for the present two petitioners only, but Government has thought it proper not to continue the services of as many as 11 AGPs, including the present petitioners.
29. Though it would not be necessary to emphasize in more words, let it be made clear that selection of the Government Pleader's officer to remain present and to oppose the admission of this petition, cannot be considered as bias against the petitioners inasmuch as in fact, all the litigations are required to be decided at the earliest and therefore, when Government has on receipt of advance copy, decided to put forward their submissions supported by judgment of Hon'ble Supreme Court of India, then, no fault can be found from their such action.
30. In view of what is stated herein above, I do Page 26 of 27 HC-NIC Page 26 of 27 Created On Mon Sep 18 23:56:22 IST 2017 C/SCA/16546/2017 CAV ORDER not see any reason to keep this matter pending any further, when both the parties have argued it at length and when there is no substance in the petition so as to grant any relief/s as prayed for.
31. In view of above, the present petition stands dismissed.
(S.G. SHAH, J.) binoy Page 27 of 27 HC-NIC Page 27 of 27 Created On Mon Sep 18 23:56:22 IST 2017