Andhra Pradesh High Court - Amravati
A.Ch. Vedavani, Hyd vs B.Ramanjaneyulu, Hyd 10 Others on 15 March, 2022
Author: Battu Devanand
Bench: Battu Devanand
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HON'BLE SRI JUSTICE BATTU DEVANAND
WRIT PETITION No.10844 OF 2015
&
CONTEMPT CASE NO.237 OF 2016
COMMON ORDER:
This Writ Petition No.10844 of 2015 has been filed by an Advocate, who was the former learned Standing Counsel for Zilla Parishads, Mandal Praja Parishads and Gram Panchayats for the region of Rayalaseema seeking to issue a writ of mandamus to declare the action of the Respondents in not paying arrears of legal fees inspite of claiming the same through various bills and finally consolidated claim bills, dated 21.02.2015 as illegal, void and arbitrary and consequential direction to the Respondents to pay the arrears of legal fees to the petitioner forthwith.
2) The case of the petitioner is that she was appointed as Standing Counsel for Zilla Parishads, Mandal Praja Parishads and Grampanchayats for the region of Rayalaseema by virtue of G.O.Rt.No.262, dated 15.02.2007. Thereafter, she reappointed as Standing Counsel vide G.O.Rt.No.1903, dated 02.11.2010. After completion of her tenure, she handed over all pending files to her successor on 24.01.2015. She submitted legal bills periodically, but, the same were withheld by the Respondents without any reason. 2 As such, she submitted a representation, dated 21.02.2015 to the Commissioner, Panchayat Raj and Rural Development, Government of Andhra Pradesh (i.e.) 2nd Respondent herein requesting to clear the unpaid legal fee bills. But, no action has been taken by the 2nd respondent. Aggrieved by the same, the present writ petition has been filed.
3) This Court on 16.04.2015 ordered Rule Nisi and issued notice to the Respondents returnable within four weeks. In WPMP No.14331 of 2015, this Court by order, dated 16.04.2015, passed the following order:
"In view of the above facts and circumstances, the concerned Respondent authorities shall consider the representation, dated 21.02.2015 submitted by the petitioner claiming arrears of unpaid legal fee and take appropriate action for payment of the same, within a period of eight weeks from the date of receipt of a copy of the order".
4) On careful perusal of the case record, it appears none of the Respondents filed their counter-affidavit in the writ petition. Only on 03.08.2021 the 2nd Respondent filed counter-affidavit.
5) Complaining the willful disobedience of the Respondents in implementing the order of this court, dated 16.04.2015 in W.P.M.P.No.14331 of 2015, the petitioner filed C.C.No.237 of 2016.
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6) This Court ordered notices to the Respondents in contempt case on 19.02.2016. The Respondents took several adjournments till 06.01.2017 representing that they are taking steps to implement the order. But, the order is not complied. On 06.01.2017, this Court ordered appearance of Sri B. Ramanjaneyulu, the Commissioner, Panchayat Raj and Rural Development, Government of Andhra Pradesh, who is the 1st Respondent in the contempt case, directing him to appear before the Court and to explain as to why fee has not been paid to the petitioner. On 27.01.2017, the 1st respondent appeared before the Court along with his counter- affidavit. On that day, the learned counsel for the petitioner sought time for filing reply and accordingly, the contempt case is adjourned for four weeks and appearance of the 1st respondent is dispensed with. Thereafter, the matter went several adjournments. The Respondent Nos.3, 4, 5, 6 and 11 also filed their counters.
7) After considering the averments made in the counters filed by the Respondents, wherein it is stated that the petitioner is not entitled for fee in respect of District Water Management Agency, as separate Standing Counsel is appointed for the same and that the petitioner is claiming in some of the cases where the Respondents are only formal 4 parties, this Court came to an opinion that it is not for this Court to decide whether the petitioner is entitled for legal fee or not and it is for the concerned Respondents to pass orders. If petitioner is not entitled for the legal fee, they should pass orders giving reasons, otherwise, they have to pay the fee. But, the respondents should not kept the matter pending.
8) In view of the aforesaid facts and circumstances, this Court by order, dated 25.01.2018, directed the petitioner to submit application once again giving all the details to the respondents and on such application, each respondent is directed to consider the representation and pass orders, within a period of four weeks from the date of receipt of a copy of the application submitted by the petitioner and adjourned to 23.02.2018.
9) After 23.02.2018, the contempt case is not listed till 24.06.2021. The Writ Petition also not listed after 16.04.2015 to till 21.02.2022.
10) This Court heard contempt case on 14.07.2021 and considering the facts and circumstances of the case, directed the Registry to implead Sri M. Girija Shankar, the present Commissioner, Panchayat Raj and Rural Development, Government of Andhra Pradesh, as Respondent 5 No.12 in contempt case and directed him to file an affidavit with all particulars of the dates of the bills submitted by the petitioner, particulars of the payments with reasons for delay in making payment.
11) Meanwhile, the petitioner filed I.A.Nos.1 of 2021 and 2 of 2021 in C.C.No.237 of 2016 praying the Court to grant leave to implead Smt. V. Sunitha, the present Law Secretary, Government of Andhra Pradesh and Sri Gopala Krishna Dwivedhi, the present Principal Secretary, Panchayat Raj and Rural Development, Government of Andhra Pradesh as Respondents. This Court ordered the said Interlocutory Applications on 04.08.2021 impleaded them as Respondent Nos.13 and 14.
12) The Respondent No.12 i.e., the present Commissioner, Panchayat Raj and Rural Development, Government of Andhra Pradesh, filed an affidavit on 27.07.2021.
13) In the affidavit filed by the Respondent No.12, it is contended that in compliance of the order, dated 16.04.2015 in W.P.No.10844 of 2015, steps were taken to release the payment of legal fee to the petitioner through memo, dated 15.06.2015 and 08.09.2015 issued by the 1st Respondent in 6 writ petition and the office of the Commissioner, Panchayat Raj and Rural Development constantly reminding the other Respondents from time to time. On constant persuasion with other Respondents, payments were made to the petitioner by Respondent Nos.4, 7, 8, 10 and 11 and the petitioner has issued "No Objection Certificates" to the Respondents in January/ February, 2017. The Respondent Nos.2, 3, 5, 6 and 9 have made part payments.
14) It is further contended that in the office Memo No.3832/CPR & RD/D2/2015, dated 15.02.2018, the Chief Executive Officers and District Panchayat Officers concerned have been requested to take immediate necessary action as per the orders of the Hon'ble Court and submit a detailed report. Pursuant to the order of the Court, dated 25.01.2018 in contempt case, the petitioner submitted a representation, dated 18.02.2018 to the Commissioner, Panchayat Raj and Rural Development, Government of Andhra Pradesh, mentioning the details of the legal fee due from the Chief Executive Officers and District Panchayat Officers as follows:
(1) Chief Executive Officer, ZPP, Chittoor : Rs.4,76,410/- (2) Chief Executive Officer, ZPP, Kadapa : Rs. 66,937/- (3) Chief Executive Officer, ZPP, Kurnool : Rs.1,27,876/- (4) Chief Executive Officer, ZPP, Anathapur: Rs.2,37,174/- (5) District Panchayat Officer, Chittoor : Rs.1,46,344/- 7
15) Vide Memo No.3832/CPR & RD/D2/2015, dated 29.03.2018 instructed the Respondent Nos.2, 3, 5, 6 and 9 to examine the representation of the petitioner and take necessary immediate action and submit a detailed report to the Hon'ble Court. They have been reminded continuously under series of communication, dated 16.05.2018, 12.07.2018, 29.11.2018, 26.05.2020, 16.10.2020 and 22.01.2021.
16) The Respondent No.12 contends that he took charge on 07.06.2019, as Commissioner, Panchayat Raj and Rural Development, Government of Andhra Pradesh and there have been constant reminders from his office to the other Respondents for payment of legal fee to the petitioner. It is submitted that final payments were made by Chief Executive Officer, Kadapa on 09.07.2021; Chief Executive Officer, Kurnool on 09.07.2021; Chief Executive Officer, Chittoor on 05.07.2021; Chief Executive Officer, ZPP, Anantapur on 13.07.2021 and District Panchayat Officer, Chittoor on 30.06.2021. A statement showing the details of payments and "No Due Certificates" given by the petitioner are enclosed along with the affidavit.
17) On careful perusal of the averments made in the affidavit of the Respondent No.12, it is clear that though the 8 petitioner submitted representation, dated 21.02.2015 requesting to clear the legal fee bills and in spite of order, dated 16.04.2015 of this Court directing the Respondents to take action for payment of the same within a period of 8 weeks, the petitioner could not receive total payment for the legal services rendered by her to the Respondents till the month of July, 2021. This Court is expressing its displeasure and anguish towards the action of the Respondents to force the petitioner to wait for more than six years for legal fees, even after filing writ petition and contempt case before this Court. It is very unfortunate.
18) In view of the facts and circumstances of the case and in view of the grievances of the Advocate fraternity put- forth before this Court during hearing of these cases, this Court intends to look into the matter in depth to issue appropriate necessary directions to the State Government.
19) For this purpose, in our view, it is necessary to examine the instructions issued by the Government of Andhra Pradesh called as "Andhra Pradesh Law Officers (Appointment and Conditions of Service) Instructions, 2000". The Government of Andhra Pradesh issued instructions regulating the Appointments and Conditions of Services of Law Officers of the Government of Andhra Pradesh vide G.O.Rt.No.187 9 LAW (L) Department, dated 06.12.2020. The instructions are applicable to the Law Officers (i.e.) Government Pleaders, Assistant Government Pleaders, Public Prosecutors, Additional Public Prosecutors, Special Public Prosecutors, Special Counsel in High Court of Andhra Pradesh, Andhra Pradesh Administrative Tribunal, Andhra Pradesh State Consumer Disputes Redressal Commission, Special Court established under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982, in any other State level Court or Tribunal, Central Administrative Tribunal, in the Courts of District Courts, Senior Civil Judge Courts, Junior Civil Judge Courts, Labour Courts, Industrial Tribunals, etc.
(i) In the said instructions, the "Law Officer" defined as a Government Pleader or an Assistant Government Pleader or a Public Prosecutor or an Additional Public Prosecutor or Special Public Prosecutor or Special Counsel.
(ii) The "Standing Counsel" means a Standing Counsel appointed for a State Public Undertaking or a Local Authority or a University or a Charitable and Hindu Religious Institution and Endowment or any other instrumentality of the Government.
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(iii) The Government shall appoint such number of Law Officers and Standing Counsels on behalf of the State, State Public Undertakings, Local Authorities, Universities, Charitable and Hindu Religious Institutions and Endowments and other instrumentalities of the State and Apex Cooperative Bodies, as the case may be, to conduct cases before various courts and Tribunals as they may consider necessary. A detailed procedure is provided to appoint Law Officers and Standing Counsels. The Government in consultation with the Advocate General shall appoint such number of Law Officers in the High Court of Andhra Pradesh and other State Level Courts or Tribunals.
(iv) Appointment of Law Officers in all the Courts and Tribunals subordinate to the High Court shall be made on the basis of the recommendations of the District Collector concerned, who shall ascertain the views of the concerned District and Sessions Judge, before making the recommendations. The Public Prosecutors, Addl. Public Prosecutors and Special Public Prosecutors shall be appointed as per the provisions of Section 24 of the Code of Criminal Procedure, 1973.
(v) The appointment of a Standing Counsel in the High Court and in any other State Level Court or Tribunal shall be 11 made from out of a panel of three persons prepared by the Advocate General. The appointment of Standing Counsel in any other Court or Tribunal in the Districts shall be from out of a panel of three names prepared by the District Collector in consultation with the District and Sessions Judge concerned.
(vi) The qualifications for appointment of a Standing Counsel shall be the same as prescribed for the Government Pleaders at the State Level and the Government Pleaders and Assistant Government Pleaders at the District Level. It is clarified in these instructions that except in so far as it is expressly provided herein, the remaining instructions of the order shall apply mutatis-mutandis to Standing Counsel also.
(vii) As per instruction No.14, no Law Officer shall appear in any court or Tribunal against the State of Andhra Pradesh, Local Authorities, State Public Undertakings, Universities and other institutions owned or controlled by the Government. Similarly, a Standing Counsel shall not appear in any case against the institution, for which he is appointed or in any case which adversely affect the interest of such institution.
(viii) The Law Officer shall ordinarily be appointed for a term of three years. The Law Officer, so appointed may be 12 considered for a second term, if the Government is satisfied that he has proven efficiency, high rate of success and good performance and for a third term in exceptional cases. The Government Pleaders, Assistant Government Pleaders, Public Prosecutors and Additional Public Prosecutors in subordinate Courts may be considered for appointment for second term, if their performance is very good and in the case of persons belonging to Scheduled Castes and Scheduled Tribes, if their performance is satisfactory.
(ix) The monthly honorarium/retainer fee and case-wise fee, for which the Standing Counsel is entitled is provided in these instructions and the same is modified under G.O.Rt.No.798 LAW (L) Department, dated 02.05.2007 and G.O.Rt.No.17 LAW (G) Department, dated 02.02.2022.
(x) The Government Pleaders and Assistant Government Pleaders appointed in the High Court of Andhra Pradesh and State Level Tribunals shall be paid a consolidated honorarium and conveyance allowance as may be fixed by the State Government from time to time. The Government Pleaders, Special Government Pleaders, Additional Government Pleaders, Assistant Government Pleaders, Public Prosecutors, Additional Public Prosecutors and in other District Level Courts appointed in the District Courts, Senior Civil Judge Courts and 13 Junior Civil Judge Courts, they shall be paid consolidated honorarium per month. The Standing Counsel appointed in the High Court and State Level Tribunals shall be paid monthly honorarium or case-wise fee as per the willingness of the Standing Counsels obtained at the time of taking charge.
20) On careful perusal of these instructions, it is clear that the Government while fixing eligibilities for appointment of Law Officers and Standing Counsels in the High Court, State Level Tribunals, Subordinate Courts and District Level Tribunals/Authorities, the Government also made it clear that the Law Officers and Standing Counsels shall not advise or attend cases against the State Government and its instrumentalities. The State Government also prescribed monthly honorarium/retainer fee or case-wise fee to the Law Officers and Standing Counsels respectively. This Court finds that there is no confusion in all these aspects.
21) It is brought to the notice of this Court that the Government Pleaders and Assistant Government Pleaders in the High Court are being paid monthly honorarium regularly without any delay. But, the Standing Counsels appearing for various instrumentalities of the State at State Level, the Law Officers and Standing Counsels appearing at District Level are not being paid their monthly honorarium and legal fee 14 regularly and promptly. As and when, the Government instructed Law Officers and Standing Counsels not advise or attend cases against the State and its instrumentalities and subjecting them for periodical work review, is it proper and rational on the part of the Government and its instrumentalities in not clearing the legal fee Bills promptly?
22) The present case is the classic example for the same. During the course of hearing of these cases, the Members of Advocate fraternity brought to the notice of this Court that for several years, the Law Officers working in the subordinate Courts and Standing Counsels working in the District Level Tribunals/ Authorities are not being paid their monthly honorarium, for which the Advocates are suffering a lot.
23) In Ajitsinh Arjunsnh Gohil vs. Bar Council of Gurajat1, it is observed in paragraph 39 as under:
"39. A lawyer is treated as a part of the noble profession and expected as an elite member of the society, to be professionally responsible and constantly remind himself that his services are rendered to the consumers of justice".
24) In Pandurang Dattatraya Khandekar v. Bar Council of Maharashtra2, the Hon'ble Apex Court held that: 1
(2017) 5 SCC 465 2 (1984) 2 SCC 556 15 "An Advocate stands in a loco parentis towards the litigants.
He has a paramount duty to his client and client is entitled to receive disinterested, sincere and honest treatment".
25) In J.S. Jadhav v. Mustafa Haji Mohamed Yusuf3, the Hon'ble Apex Court has observed as under:
"Advocacy is not a craft but a calling; a profession wherein devotion to duty constitutes the hallmark. Sincerity of performance and earnestness of endeavour are the two wings that will bear aloft the advocate to the tower of success. Given these virtues other qualifications will follow of their own account. This is the reason why legal profession is regarded to be a noble one".
26) No doubt, Legal profession is a Noble profession. Every Advocate has to discharge his legal duties as per the Oath took at the time of Enrolment of his name on the rolls of the State Bar Council. It is paramount duty of every Advocate to discharge his responsibilities to protect the interest of his client and to uphold the majesty of the Courts. At the same time, every Advocate has to live and survive with respect and dignity. Like all other citizens, as they are surviving by the income derived from their employment or business or services, the Advocates also have to survive from the professional income they have to get by rendering legal services to their clients including the State Government and 3 (1993) 2 SCC 562 16 its instrumentalities. The relation between the Advocate and the State Government and its instrumentalities is like an Advocate and client. As and when, an Advocate rendered his legal services to his clients, he is entitled for the legal fee. May it be called as "Professional/Legal Fee" or "Honorarium" or "Retainer fee". The Advocate, who is rendering services as Law Officer or Standing Counsel for the State and its instrumentalities, is legally entitled for legal fee for the services rendered by him within a reasonable time.
27) Though the State Government and its instrumentalities utilizing the services of the Law Officers and Standing Counsels, if they are failed to clear the bills submitted towards legal fee within a reasonable time, definitely, it will cause serious hardships to them. The Advocates, who are rendering their services to the State and its instrumentalities as Law Officers and Standing Counsels have to look after the welfare of their families. They have to maintain office establishment and library. They have to make payment of salaries to their office colleagues, clerks, Computer Operators, Stenographers, Attendars and other staff. They have to spend some amount for stationary and other incidental expenses. They have to meet all these expenditure from their professional income. If there is an 17 abnormal delay in clearing the bills submitted towards legal fee by the Law Officers and Standing Counsels, it definitely, causes serious hardships to them.
28) For the aforesaid reasons, in the considered opinion of this Court, non-payment of professional fee/monthly honorarium to the Law Officers and Standing Counsels of the State and its instrumentalities within the reasonable period, for which they are legitimately entitled, is nothing but depriving their rights and thereby, their right to life with respect and dignity will be defeated, which is violative of Article 21 of the Constitution of India.
29) The view of this Court is fortified by the rulings of the Hon'ble Apex Court and High Courts as noted hereunder:
30) In a writ petition filed by an Advocate claiming remuneration for his professional services rendered by him to the Corporation of the City of Madras, a Division Bench of the Madras High Court directed the Corporation to pay fee along with interest @ 12% per annum. In the appeal filed by the Government of Tamil Nadu and others, the Hon'ble Apex Court confirmed the order of the Division Bench of the Madras 18 High Court in Government of Tamil Nadu and others v.
R. Thillaivillalan4.
31) In a writ petition filed by a Senior Advocate of the High Court of Andhra Pradesh to issue a writ of mandamus to pay legal fee for an amount of Rs.2,18,600/- together with simple interest @ 12% per annum is allowed by the High Court of Andhra Pradesh in P. Ram Reddy vs. The Shipping Corpn. of India Ltd.5
32) In K.V. Venkatapathi (deceased) and others vs. Chennai Metropolitan Water Supply and Sewerage Board6 in a writ petition filed by a former Advocate General, State of Tamil Nadu and others seeking direction to the State to pay pending professional fee forthwith along with interest @ 12% per annum. The High Court of Madras ordered the writ petition directing the respondents therein to pay legal fee with interest @ 12% per annum.
33) Having regard to the issue involved in the present writ petition and the contempt case and taking serious note of the submissions made by the respective counsels and considering the grievances putforth before this Court by the Members of Advocate fraternity, we opine that it is not 4 AIR 1991 SC 1231=Manu/SC/0732/1991 5 1993(1) ALT 439=Manu/AP/0233/1992 6 2012(2) CTC 405 19 proper, reasonable and appropriate to the State Government and its instrumentalities to force the learned Advocates to file writ petitions and contempt cases for payment of legal fee after utilizing their professional services.
34) It is alleged that the reason for abnormal delay in claiming legal professional fee bills is due to political considerations. After change of Governments, the bills submitted by the counsels rendered legal services in the previous Governments are being withheld. If, the said allegation is true, in our opinion, it is not acceptable and it is regrettable. It is to be noted that they are rendering Legal services to the State and its instrumentalities, but not for any individual. Political executives may change. But, the Government remains at all times.
35) For the reasons stated above, this Court holds that withholding the professional fee bills of the Law Officers and Standing Counsels for unreasonable period is illegal, arbitrary, unjust and violative of Article 21 of the Constitution of India.
36) This Court further holds that every Advocate, who is rendering Legal provisional Services to the State and its instrumentalities in the capacity of Advocate-General, Additional Advocate-General, Law Officer and Standing 20 Counsel, are entitled for professional fee within reasonable period from the date of submission of Bill.
37) Accordingly, by exercising the extraordinary jurisdiction conferred on this Court under Article 226 of the Constitution of India and to meet the ends of justice to protect the rights of Advocates fraternity, this Court issue the following directions:
(1) The State Government and its instrumentalities shall clear the legal fee bills of the Law Officers and Standing Counsels which are pending as on today and make payment within a period of four weeks. In default, it shall be paid with interest @ 12% per annum from the date of submission of legal fee bills.
(2) Hereinafter (from the date of this order) the professional fee/honorarium/retainer fee shall be paid to the Law Officers and Standing Counsels of State Government and its instrumentalities within four (4) weeks from the date of submission of legal fee bills. In default, they shall pay the legal fee bills along with interest @ 12% per annum after one month from the date of presentation of the bills to till the date of actual payment.21
(3) The Law Secretary of the State Government shall ensure that the legal fee bills/monthly honorarium payable to the Law Officers and Standing Counsels at the District Level (i.e.) in District Courts, Senior Civil Judge Courts, Junior Civil Judge Courts and other District Level Tribunals and Authorities, shall be paid every month hereinafter and take steps to clear all bills, which are pending as on today and make payment within a period of four weeks from today.
(4) The Registrar (Judicial), High Court of Andhra Pradesh, Amaravati, is directed to send a copy of this Order to the Chief Secretary, Government of Andhra Pradesh by special messenger, to enable him to issue necessary instructions to all the concerned to settle the legal fee payable to the Law Officers and the Standing Counsels promptly, so as to avoid unwarranted litigations of this nature in future.
38) With the above directions, the W.P.No.10844 of 2015 is disposed of.
39) With regard to C.C.No.237 of 2016, this Court noticed abnormal delay in implementing the order passed by this Court on 16.04.2015. But, considering the facts and circumstances of the case and the unconditional apology tendered by the Respondents, in our view, it is appropriate to 22 close the contempt case with a warning to all concerned officers, who are responsible to clear legal fee bills of the Law Officers and Standing counsels be more careful in future.
40) Accordingly, the C.C.No.237 of 2016 is closed placing the unconditional apology tendered by the Respondents on record.
41) There shall be no order as to costs.
42) This Court places appreciation for the assistance
rendered by Sri P. Subash, Kiran Tirumalasetti and Kiran Kumar Vadlamudi, learned counsels on record.
Consequently, the miscellaneous petition, if any, in both the cases, shall stand cancelled.
__________________________ JUSTICE BATTU DEVANAND Dt.15.03.2022 Note: Issue CC today.
B/o PGR 23 HON'BLE SRI JUSTICE BATTU DEVANAND W.P.No.10844 OF 2015 & C.C.No.237 of 2016 Dt: 15.03.2022 PGR