Karnataka High Court
Dakshayani D/O. Chinnayya Nadurmath vs The State Of Karnataka, on 5 October, 2012
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 5TH DAY OF OCTOBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION No.64718/2012 (S-RES)
BETWEEN:
Smt. Dakshayani,
D/o Chinnayya Nadurmath,
Age: 43 years, Occ: Advocate,
R/o P2/1, PWD Quarters,
Near Darbar Hall,
Behind Dharwad Hotel,
Dharwad - 580 001. ... Petitioner
(By Sri H. Subramanya Jois, Sr.Counsel for
Sri V.R.Datar for Sri Hemanth Kumar L.Havaragi)
AND:
1. The State of Karnataka,
Represented by Chief Secretary to
Government of Karnataka,
Bangalore.
2. State of Karnataka,
By its Secretary,
Department of Law and
Justice and Human Rights,
Vidhana Soudha,
Bangalore - 560 001.
2
3. Deputy Commissioner,
District Dharwad,
Dharwad - 580 001.
4. Sri Ramachandra,
S/o Govindappa Avalakki @ Naidu,
Age: Major, Occ: Advocate,
R/o Bin Govindappa,
Venkatadri plot 46,
6th Cross, Mayor Park,
Lakumanahalli,
Yalakki Shettar Colony,
Dharwad - 580 005. ... Respondents
(By Smt. K.Vidyavati, AGA for R-1 to R-3,
Sri V.P.Kulkarni, Advocate for R-4)
This writ petition is filed under Articles 226 and 227 of the
Constitution of India praying to quash the notification No.LAW
142 LAG 2009 dated 4.6.2012 issued by the respondent No.2
produced herewith as Annexure-P declaring the same as
violative of Articles 14 and 16(1) of the Constitution of India and
the provisions of the Karnataka (Law Officer) appointment and
conditions of Service of Rule. 1977 and etc.
This writ petition being heard and reserved for orders on
12.9.2012 coming on for pronouncement of orders this day, the
Court made the following:
ORDER
The petitioner has raised the challenge to the order, dated 04.06.2012 (Annexure-P) relieving her of her duties as Dharwad District Government Pleader and appointing the fourth respondent in her place.
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2. Sri H. Subramanya Jois, the learned Senior Counsel appearing for Sri V.R.Datar, the learned counsel for the petitioner submits that the impugned order is illegal, as by the very same order the petitioner is removed from the office of the District Government Pleader, the fourth respondent is appointed in her place. The passing of such composite orders is not traceable to any provision of law.
3. He submits that no decision is taken, much less a conscious decision for appointing the respondent No.4 as the District Government Pleader. He submits that the Note No.142 only shows that the Law Minister has given his approval to the appointment of the fourth respondent. On the other hand, no functionary has ever made the proposal for appointing the fourth respondent as the District Government Pleader. That being the case, the question of according the approval would not arise at all. No competent authority has taken the decision. No sanction is given to appoint the fourth respondent as the District Government Pleader.
4. The learned Senior Counsel complains of the violation of Article 14 of the Constitution of India. He submits that the 4 removal of the petitioner smacks of malice. He submits that for political reasons, the petitioner is being removed. He submits that the same is on the basis of the minutes, dated 25.06.2010 (Annexure-C) given by Sri Jagadeesh Shettar, the then Rural Development and Panchayat Raj Minister and the letter, dated 28.06.2010 (Annexure-D) sent by Sri Prahlad Joshi, the Member of Parliament, Dharwad. He also brings to my notice the letter, dated 29.06.2011 (Annexure-F) sent by the Hubli-Dharwad Mahanagara District Unit of Bharathiya Janata Party. He submits that a political party cannot comment on the professional competence of anybody.
5. He complains of the colourable exercise of power. Only to remove the petitioner from the post of the District Government Pleader, the fourth respondent's name is brought in. He also complains that the official respondents have resorted to the method of pick and choose. He submits that as per the report, dated 17.12.2011 (Annexure-M) submitted by the District Judge, the names of five advocates are forwarded with the emphasis that they are in order of preference. In the list of five names, the fourth respondent's name is at the bottom. Without 5 stating for what just reasons, the advocates from Sl.Nos. 1 to 4 are eliminated, the fifth name (the fourth respondent herein) ought not to have been appointed.
6. He submits that as per Rule 5(3) of the Karnataka Law Officers (Appointment and Conditions of Service, Rules) 1977, ('the said Rules' for short), once the services of the District Government Pleader are extended, he or she shall hold the post for three years. The provisions are extracted hereinbelow:
5. Appointment of Law Officers:
(1) ..............
(2) ..............
(3) Subject to the other provisions contained in these rules, unless otherwise ordered in the order of appointment, a person appointed as a law officer shall hold at a time, for a term not exceeding three years, but shall be eligible for re-appointment after the expiry of such term:
Provided that notwithstanding the expiry of the term a law officer shall, unless otherwise ordered, continue in office until fresh appointment is made or for a period of twelve months whichever is earlier."
7. He submits that the District Government Pleader can be removed from the office at any time, if he is found guilty of any 6 act or conduct which is incompatible with his duties as the Law Officer. In the instant case, the petitioner is not even being put on notice; nobody has complained against her.
8. Nextly, the learned Senior Counsel reads out Rule 26(2) of the said Rules to advance the submission that the Government has to go by the remarks made by the District Judge in the appointment of the District Government Pleader. The said provisions are extracted hereinbelow:
"26. Appointment of District Government Pleader, etc., (1) ...............
(2) The Deputy Commissioner shall, whenever required by the Government, invite applications from eligible practising advocates of the place, for the post of District Government Pleaders, Additional District Government Pleaders and Assistant Government Pleaders specifying the date before which such application should be made and forward the applications so received to the District Judge along with his remarks about their suitability for appointment to the concerned post. On receipt of the same, the District Judge shall forward them to the Government in the Department of Law and Parliamentary Affairs appending his remarks regarding his suitability of each of them for the concerned post. The Government shall thereafter make 7 the appointments having regard to the remarks of District Judge and the Deputy Commissioner."
9. The learned Senior Counsel has also relied on this Court's decision in the case of S.H.MOHAN KUMAR vs. STATE OF KARNATAKA reported in ILR 2005 KAR 5517 for advancing the submission that it is incumbent upon the authorities to follow the principles of natural justice and provide an opportunity to the affected persons before passing any order holding him guilty of misconduct. He submits that the duties of a Law Officer cannot be equated to that of a professional, who is engaged by the private client, as the responsibilities entrusted to the Law Officer partake a public character. Any order removing him from service on the basis of allegations made by the third parties would have serious repercussions for him in his future professional career.
10. Sri V.P.Kulkarni, the learned counsel for the respondent No.4 has raised two preliminary objections to the maintainability of this petition.
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11. He submits that the petitioner had filed W.P.No.63773/2012 on 02.06.2012 two days prior to the issuance of the impugned order on 04.06.2012. Subsequent to the filing of the writ petition, the impugned order issued on 04.06.2012, was inserted and the matter was got listed on 07.06.2012. When these things were brought to the notice of this Court, the petitioner withdrew the said writ petition on 02.07.2012.
12. Sri Kulkarni submits that the petitioner has not got the liberty reserved to him by this Court in W.P.No.63773/2012 to file one more writ petition on the same cause of action. He submits that the provisions contained in Order 23 Rule 1 CPC dealing with withdrawal of the suit are applicable for the writ proceedings also. He has also relied on the Apex Court's judgment in the case of SARGUJA TRANSPORT SERVICE vs. STATE TRANSPORT APPELLATE TRIBUNAL, GWALIOR AND OTHERS reported in AIR 1987 SC 88, wherein it is held that if the writ petition is withdrawn without permission to institute the fresh petition, the fresh petition on the same cause of action is not maintainable.
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13. The second preliminary objection raised by Sri Kulkarni is that the petitioner had earlier filed W.P.No.62266/2011 assailing the notification calling for the applications for the appointment of the Government Pleader of Dharwad District. The said writ petition was dismissed by the learned Single Judge by his order, dated 14.03.2011 (Annexure-G). This was confirmed by the Division Bench in its judgment, dated 25.05.2011 passed in W.A.No.6100/2011 holding that the petitioner has no right to challenge the notification calling for applications for the post of District Government Pleader merely because she is an incumbent in the office as on the date of the notification.
14. Sri Kulkarni submits that the petitioner may have sought the liberty to file a fresh petition on the same cause of action, but when the Court has not granted it, what follows from it is that such a sought liberty is impliedly refused. He read out the Explanation 5 to Section 11 of the Code of Civil Procedure. It is as follows:
"Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the 10 purposes of this section, be deemed to have been refused."
15. He brings to my notice that the decision to remove the petitioner from the office of the District Government Pleader and appoint the respondent No.4 are independent of one another. There is no composite decision, as was trying to be made out by the petitioner's side. He further brings to my notice, the Note No.46 put up by the Law Secretary before the Hon'ble Law Minister. The note put up was whether to continue the petitioner's services or call for fresh applications. The Hon'ble Law Minister has made an order for calling for applications at Note No.47.
16. The learned counsel brings to my notice, the Division Bench's judgment in the case of SRI HANUMANTHA RAO KULKARNI vs. THE STATE OF KARNATAKA AND ANOTHER reported in 2008(3) KCCR 1821, wherein it is held that the opinion of the District Judge is not binding on the Government. He submits that the District Judge's opinion is of advisory nature. The learned counsel also sought to draw the support 11 from the Apex Court's Judgment in the case of STATE OF U.P. AND OTHERS vs. U.P. STATE LAW OFFICERS ASSOCIATION AND OTHERS reported in AIR 1994 SC 1654 to buttress his submission that when the relationship between the Government and the Government Pleader is basically of contractual nature, when the rules specifically provide for the appointment and termination of the Government Pleaders at the will of the Government, nobody can claim any vested right that his or her services be continued. He read out the following portions of para-6:
"6. The appointment of lawyers by the Government and the public bodies to conduct work on their behalf, and their subsequent removal from such appointment have to be examined from three different angles, viz., the nature of the legal profession, the interests of the public and the modes of the appointment and removal.
Legal profession is essentially a service-oriented profession. The ancestor of today's lawyer was no more than a spokesman who rendered his services to the needy members of the society by articulating their case before' the authorities that be. The services were rendered without regard to the remuneration received or to be received. With the growth of litigation, lawyering became a full-time occupation and most of the lawyers came to 12 depend upon it as the sole source of livelihood. The nature of the service rendered by the lawyers was private till the Government and the public bodies started engaging them to conduct cases on their behalf. 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 a professional practitioner engaged to do the specified work. This is so even today, 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. He is not bound to tell the court every fact or urge every proposition of law 13 which his client wants him to do, however irrelevant it may be. He is essentially an adviser to his client and is rightly called a counsel in some jurisdictions. Once acquainted with the facts of the case, it is the lawyer's discretion to choose the facts and the points of law which he would advance. Being a responsible officer of the court and an important adjunct of the administration of justice, the lawyer also owes a duty to the court as well as to the opposite side. He has to be fair to ensure that justice is done. He demeans himself if he acts merely as a mouthpiece of his client. This relationship between the lawyer and the private client is equally valid between him and the public bodies.
xxxxxxx xxxxxxxx It would be evident from Chapter V of the said Manual that to appoint the Chief Standing Counsel, the Standing Counsel and the Government Advocate, Additional Government Advocate, Deputy Government Advocate and Assistant Government Advocate, the State Government is under no obligation to consult even its Advocate-General much less the Chief Justice or any of the judges of the High Court or to take into consideration, the views of any committee that " may" be constituted for the purpose. The State Government has a discretion. It may or may not ascertain the views of any of them while making the said appointments. Even where it chooses to consult them, their views are not binding on it. The appointments may, therefore, be made on considerations other than 14 merit and there exists no provision to prevent such appointments. 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. Those who come by the back door have to go by the same door. This is more so when the order of appointment itself stipulates that the appointment is terminable at any time without assigning any reason. Such appointments are made, accepted and understood by both sides to be purely professional engagements till they last. The fact that they are made by public bodies cannot vest them with additional sanctity. Every appointment made to a public office, howsoever made, is not necessarily, vested with public sanctity. There is, therefore, no public interest involved in saving all appointments irrespective of their mode. From the inception some engagements and contracts may be the product of the operation of the spoils system. There need be no legal anxiety to save them."
17. The learned counsel submits that the impugned order does not attach any stigma to the petitioner. It relieves her of 15 her position by giving one month's retainership fee. The same is done in exercise of power conferred by Rule 5(6) and not Rule 5(5) of the said Rules. No reasons are required to be assigned for terminating the services of a Government Pleader. He submits that the Division Bench of this Court in the case of KHUSRO QURAISHI vs. STATE OF KARNATAKA reported in 2012(3) AIR KAR 136, involving more or less similar facts and circumstances, upheld the removal of Chairman of States Minority Commission, as the statute under which he was appointed itself states that the Chairman shall hold power only during the pleasure of the Government.
18. On the grievance of the petitioner that she is being removed for political reasons, Sri Kulkarni states that the Government Pleader's appointment is of political nature only. He brings to my notice that even the petitioner was appointed only on the basis of the recommendations of Dharwad (Urban) M.L.A. Sri Gurappa Bellad and the Member of Parliament from Shimoga Constitutency, Sri D.Y.Raghavendra. He read out Note No.11 from the noting sheet, a copy of which was produced as 16 Annexure-N to the earlier writ petition in W.P. No.62277/2011. They are extracted hereinbelow:
"F PÀÄjvÀAvÉ zsÁgÀªÁqÀ f¯ÉèAiÀÄ f¯Áè ¸ÀPÁðj ªÀQîgÁzÀ ²æêÀÄw zÁæPÁëAiÀÄt a£ÀßAiÀÄå £ÀqÀÆgÀªÀÄoÀ, EªÀgÀ ¸ÉêÁªÀ¢üAiÀÄ£ÀÄß ±ÀºÀgÀ ±Á¸ÀPÀgÁzÀ UÀÄgÀ¥Àà ¨É®èzÀ ºÁUÀÆ ¯ÉÆÃPÀ¸À¨sÁ ¸ÀzÀ¸ÀågÁzÀ ²æà r.ªÉÊ. gÁWÀªÉÃAzÀæ ªÀÄvÀÄÛ G¯ÉèÃTvÀ ¢£ÁAPÀ : 07-01-2010gÀ ¥ÀæzsÁ£À f¯Áè ªÀÄvÀÄÛ ¸ÀvÀæ £ÁåAiÀiÁ¢üñÀgÀ EªÀgÀ ²¥sÁgÀ¹ì£À ªÉÄÃgÉUÉ PÀArPÉ (6)gÀAvÉ ¸ÀzÀj ªÀQîgÀ£ÀÄß ¢£ÁAPÀ : 10-02-2010gÀ C¢ü¸ÀÆZÀ£ÉAiÀÄ°è ¢£ÁAPÀ: 23-04- 2010jAzÀ eÁjUÉ §gÀĪÀAvÉ ªÀÄÆgÀÄ ªÀµÀðzÀ CªÀ¢üUÉ CxÀªÁ ªÀÄÄA¢£À DzÉñÀzÀªÀgÉUÉ EªÉgÀqÀgÀ°è AiÀiÁªÀÅzÀÄ ªÉÆzÀ¯ÉÆà C°èAiÀĪÀgÉUÉ zsÁgÀªÁqÀ f¯ÉèAiÀÄ f¯Áè ¸ÀPÁðj ªÀQîgÀ ºÀÄzÉÝAiÀÄ°è ªÀÄÄAzÀĪÀgɸÀ¯ÁVgÀÄvÀÛzÉ. ¥ÀÄl-17"
19. In the course of rejoinder, Sri Subramanya Jois submits that W.P.No.63773/2012 had to be withdrawn because of the technical errors inadvertently committed by the petitioner's learned counsel on record. He submits that the advocate on record is an inexperienced member of the Bar. He submits that the original prayers in W.P.No.63773/2012 were as follows:
(i) Call for the entire records concerning and connected with the appointment to the post of the 17 District Government Pleader, Dharwad District, Dharwad, in File No.Law 142 LAG 2009, peruse the same and declare and quash the orders dated 28.4.2012 and 17.5.2012 found in paragraphs 142 and 144 of the said file vide Annexure-P declaring the same as violative of Articles 14 and 16(1) of the Constitution and the provisions of the Karnataka (Law Officers) Appointment and Conditions of Services of Rules, 1977, etc.,
(ii) To issue a writ in the nature of prohibition commanding the respondents 1 to 3 from issuing any orders of appointment to the 4th respondent in pursuance of the orders contained in File No.Law 142 LAG 2009, peruse the same and declare and quash the orders dated 28.4.2012 and 17.5.2012 found in paragraphs 142 and 144 of the said file vide Annexure-P.
(iii) Pass such other orders as this Hon'ble Court may deem fit in the circumstances of the case, 18 including the award of the costs of this petition, in the interest of justice and equity."
20. The impugned order, dated 04.06.2012 came to be issued subsequent to the filing of the W.P.No.63773/2012. The prayer had to be incorporated for the quashing of the impugned order. The petitioner's learned counsel on record ought to have filed an I.A. for the amendment of the petition. On the other hand, not knowing the procedure, he straightaway inserted the prayer for the quashing of the impugned order. It is because of this inadvertent error that the earlier writ petition had to be withdrawn. For the innocent mistake on the part of the advocate on record, the petitioner should not be punished, so pleads the learned Senior Counsel.
21. Smt.K.Vidyavathi, the Additional Government Advocate appearing for the respondent Nos.1 to 3 submits that the appointment of the fourth respondent is in accordance with the provisions contained in Rule 26(2) of the said Rules. She submits that the petitioner challenged the notification, dated 26.2.2011 19 (Annexure-L) calling for fresh applications for filling up the office of the District Government Pleader but without any rate of success. Further the petitioner has not made any application in response to the said notification.
22. The learned Additional Government Advocate submits that under Rule 5(2) of the said Rules, all law officers shall hold the office only during the pleasure of the Government. The post in question being a pleasure post, nobody can claim any vested right to be continued as the Government Advocate or Pleader, so submits the learned Addl. Government Advocate.
23. In the course of rejoinder, Shri V.R.Datar, the learned counsel for the petitioner submits that there are no reasons whatsoever for the removal of the petitioner. The petitioner is not notified of the complaint or allegations. Unless the reasons are assigned, the removal of the District Government Pleader cannot be justified. He submits that just because a post is a pleasure post, the incumbent cannot be removed whimsically or arbitrarily. He read out paragraph No.34 of the Apex Court's judgment in the case of B.P.SINGHAL vs. UNION OF INDIA 20 reported in (2010) 6 SCC 331, which is extracted hereinbelow:
"34. The doctrine of pleasure, however, is not a licence to act with unfettered discretion to act arbitrarily, whimsically, or capriciously. It does not dispense with the need for a cause for withdrawal of the pleasure. In other words, "at pleasure" doctrine enables the removal of a person holding office at the pleasure of an authority, summarily, without any obligation to give any notice or hearing to the person removed, and without any obligation to assign any reasons or disclose any cause for the removal, or withdrawal of pleasure. The withdrawal of pleasure cannot be at the sweet will, whim and fancy of the authority, but can only be for valid reasons."
24. He submits that when the post itself has not fallen vacant, the question of appointing the fourth respondent would not arise.
25. Sri Datar submits that it is also the case of the Government that the petitioner is removed from the post, as the complaints are received against her. The learned AGA's submission itself is tantamount to admitting that the impugned removal is stigmatic. 21 The observance of the principles of natural justice has to precede the act of removing the incumbent. In a democratic set-up, the doctrine of pleasure cannot be invoked for removing the incumbent arbitrarily. He read out paras 22 and 24 of the Apex Court's Judgment in B.P.Singhal's case (supra) which are extracted hereinbelow:
"22. There is a distinction between the doctrine of pleasure as it existed in a feudal set-up and the doctrine of pleasure in a democracy governed by the rule of law. In a nineteenth century feudal set-up unfettered power and discretion of the Crown was not an alien concept. However, in a democracy governed by rule of law, where arbitrariness in any form is eschewed, no Government or authority has the right to do what it pleases. The doctrine of pleasure does not mean a licence to act arbitrarily, capriciously or whimsically. It is presumed that discretionary powers conferred in absolute and unfettered terms on any public authority will necessarily and obviously be exercised reasonably and for the public good.
24. It is of some relevance to note that the "doctrine of pleasure" in its absolute unrestricted application does not exist in India. The said doctrine is severely curtailed in the case of government employment, as will be evident from clause (2) of Article 310 and clauses (1) and (2) of 22 Article 311. Even in regard to cases falling within the proviso to clause (2) of Article 311, the application of the doctrine is not unrestricted, but moderately restricted in the sense that the circumstances mentioned therein should exist for its operation. The Canadian Supreme Court in Wells vs. Newfoundland has concluded that "at pleasure" doctrine is no longer justifiable in the context of modern employment relationship."
26. Sri Datar further submits that the petitioner has given up her entire private practice to become the Government Pleader. Just because the appointment is of contractual nature, the petitioner cannot be removed at will. The Government Pleader's post is virtually a civil post, therefore, the protection guaranteed under Article 311 of the Constitution of India has to be extended to the persons appointed as Government Pleaders.
27. He submits that the question of the petitioner applying afresh for the post in question do not arise for two reasons: (a) she was already holding the post, (b) vacancy in the post of District Government Pleader has not arisen. 23
28. Sri Kulkarni, the learned counsel for the respondent No.4 submits that the petitioner has gone far beyond the grounds urged in the writ petition. He submits that the Apex Court's judgment in the case of B.P.Singhal (supra) has no application for appointment and the continuation of the law officers; that the Governor cannot be removed, merely acting on the doctrine of pleasure, cannot be extended to the law offices. In this regard he read out the last part of paragraph No.70 of the said decision.
"......................... Though the Attorney General holds a public office, there is an element of lawyer-client relationship between the Union Government and the Attorney General. Loss of confidence will therefore be a very relevant criterion for withdrawal of pleasure, in the case of a Minister or the Attorney General, but not a relevant ground in the case of a Governor."
29. The submissions of the learned counsel have received my thoughtful consideration. I do not propose to throw out this petition on the preliminary objections raised by the respondent No.4. The filing of the second writ petition on the same cause of 24 action is not normally permissible. But, in the instant case, the first writ petition was withdrawn without inviting any order on merits on account of the technical errors, committed by the inexperienced member of the Bar.
30. Similarly, the unsuccessful attempts made by the petitioner in W.P.No.62266/2011 for assailing the notification calling for the appointment of the Government Pleader of Dharwad District and W.A.No.6100/2011 arising therefrom, would not come in the way of the petitioner challenging the impugned order, because the orders passed in the writ petition and the writ appeal were challenged before the Hon'ble Supreme Court in S.L.P.No.20700/2011. The Hon'ble Supreme Court, while dismissing the said S.L.P. as withdrawn, by its order, dated 08.08.2011 (Annexure-J) had observed that the same will not prevent the petitioner from seeking the remedy, if and when such cause of action arises. By the operation of the doctrine of merger, the orders passed by the learned Single Judge and by the Division Bench of this Court have merged in the order passed by the Apex Court in the said S.L.P. Pursuant to the observation 25 made at the time of disposing the S.L.P., the petitioner is challenging the impugned order. She cannot be shut out from doing so.
31. Basically the following interconnected questions fall for my consideration:(i) Whether the impugned order is illegal and arbitrary? (ii) Whether the impugned order is actuated by malafides? (iii) Whether the non-observance of the principles of natural justice has vitiated the passing of the impugned order?
32. To answer these questions, it is necessary to know the genesis of the appointment of the Government Pleaders. As held by the Apex Court in the case of U.P. State Law Officers Association (supra), the method of appointment is indeed not calculated to ensure that the meritorious alone will be appointed or that the appointment made will not be on considerations other than merit. In the absence of guidelines, the appointments are made purely on personal and political considerations and at times arbitrarily. This being so, those who come to be appointed by such arbitrary procedure can hardly complain that the 26 termination of their appointment is arbitrary. Those who come by the backdoor have to go by the same door. The Apex Court has further observed that from the inception, the Law Officers' appointments are the product of the operation of the spoils system. There need be no legal anxiety to save them.
33. The Apex Court's decision in the U.P. State Law Officers Association (supra) has full application for the facts of this case. As is evident from Note No.11 (Annexure-N in W.P.No.62277/2011), the petitioner was appointed on the basis of the recommendations of Dharwad M.L.A., Gurappa Bellad and the Member of Parliament from Shimoga Constituency, Sri D.Y.Raghavendra. The said note is extracted supra. Now she cannot nurse the grievance that the fourth respondent is being appointed at the instance of Sri Jagadish Shettar and Sri Pralhad Joshi. The initial appointments, their continuation and their termination may be for political reasons only.
34. The petitioner has no legally vested right to demand that her services be continued for a period of three years from 23.11.2010 based on the notification, dated 10.02.2010 (Annexure-B).The said order makes it very clear that the 27 petitioner's services are continued for a period of three years or until further orders, whichever is earlier. The said notification is extracted hereinbelow:
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35. Rule 5(2) of the said Rules unequivocally states that all officers shall be appointed by the Government and shall hold office during the pleasure of the Government. The appointment of the District Government Pleader is only a professional 28 engagement terminable at all. Law is no trade; government briefs are no merchandise.
36. The Division Bench in the case of Khusro Quraishi (supra) has held that once the doctrine of pleasure is invoked, neither the principles of natural justice would step in nor any question of giving an opportunity before removal would arise.
37. This Court's decision in the case of S.H.Mohan Kumar (supra) does not come to the rescue of the petitioner in any way. In the said case, Rule 5(5) of the said Rules was invoked in the order removing the Government Pleader. But in the case on hand, the impugned order is passed in exercise of the power conferred by Rule 5(6) of the said Rules. While the order passed invoking Rule 5(5) of the said Rules attaches stigma to the Government Pleader, the same thing cannot be said in respect of the order terminating the Government Pleader's appointment without assigning any reason and by giving one month's notice or giving one month's retainership fee in lieu of such notice. For invoking Rule 5(5), the observance of the principles of natural justice is a condition precedent. Further, once the order is 29 passed invoking Rule 5(5), the concerned person is not entitled to get one month's retainership fee. On the other hand, if the services are terminated invoking Rule 5(6) of the said Rules, payment of one month's retainership, in the absence of the issuance of notice, becomes a mandatory requirement. The impugned order does not attach stigma to the petitioner. It is in the nature of termination simplicitor.
38. For the ready perusal, the said provisions are extracted again:
"5. Appointment of Law Officers:
(1) ..............
(2) ..............
(3) ................
(4) ................
(5) A law officer shall be liable to be removed from office at any time if he is guilty of any act or conduct which, in the opinion of the Government is contrary to these rules or is incompatible with his duties as such law officer. Decision of the Government in such cases, shall be final.
(6) Save as otherwise provided in sub-rule (5) and subject to the provisions of sub-rule (2), 30 the State Government may terminate the appointment of a law officer without assigning any reason for giving one month's notice in writing or by giving one month's retainer in lieu of such notice."
39. Similarly, the Apex Court's decision in the case of B.P.Singhal (supra) would be of no assistance for the petitioner. What fell for consideration in the said case is whether the removal of Governor is justiciable. In the said case, the Apex Court has taken the considered view that the loss of confidence in the Attorney General would be a relevant criterion for the withdrawal of pleasure. The same principle is applicable to the Government Pleader also.
40. It is also profitable to refer to the Hon'ble Supreme Court's judgment in the case of STATE OF U.P. AND OTHERS vs. RAKESH KUMAR KESHARI (reported in (2011) 5 SCC
341) wherein it is held that the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot compel the State to utilise the services of an advocate irrespective of its choice. It is for the State to engage and dis- engage a counsel.
31
41. The submissions that the composite order for removing the petitioner and appointing the fourth respondent is passed and that no conscious decision is taken to appoint the fourth respondent are meritless. Note No.46 put up by the Law Secretary before the Hon'ble Law Minister is for the decision as to whether to continue the petitioner's services or call for fresh applications. The Hon'ble Minister has made an order calling for the applications at Note No.47. The notification intimating the relieving of the petitioner and appointing the fourth respondent as the Government Pleader does not suffer from any infirmity or illegality.
42. On the slender ground that the fourth respondent's name is at the bottom of the list of five names prepared by the District Judge, the appointment of the fourth respondent as the Government Pleader cannot be quashed. The Apex Court in the case of Hanumantha Rao Kulkarni (supra) held that the recommendations of the District Judge is not binding on the Government. The Government is only required to consider the remarks of the District Judge; the Government cannot dispense 32 with the consultation itself. The Apex Court in the case of U.P. STATE LAW OFFICERS ASSOCIATION (supra) has recognised the wide discretion that the Government has in the matter of appointing the Law Officers. The District Judge's remarks are only regarding the suitability of the candidates for the appointment.
43. That apart, the petitioner has no litigational competence to challenge the fourth respondent's appointment on the ground of the Government not following the order of preference indicated by the District Judge. Such a ground could have been raised only by the advocates found at Sl.Nos.1 to 4 in the list.
44. In the result, I dismiss this petition. No order as to costs.
Sd/-
JUDGE Cm/MD/MKC/MRK