Andhra Pradesh High Court - Amravati
Gonuguntla Srikanth, vs The State Of Andhra Pradesh, on 19 December, 2019
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NOs.16472, 19142, 19146, 17363, 17515,
17595 OF 2019
COMMON ORDER:
As the allegations made in all these writ petitions are one and the same, hence, I find it expedient to decide all the petitions by common order. W.P No.16472 of 2019 is taken as a leading petition.
W.P No.16472 of 2019 This writ petition is filed under Article 226 of the Constitution of India, to issue Writ of Mandamus declaring the action of the second respondent in issuing the impugned Memo No.1794/57/G/ 2019 dated 19.09.2019 issued by the respondent No 2 as arbitrary unreasonable contrary to the G.O.Ms.No.187 Law (L) dated 06.12.2000 Circular Memo No. 309 LSP/111/L2/2010 dated 16.10.2010 and in violation of Article 14 of the Constitution of India and consequently quash the impugned Memo No 1794/57/G/ 2019 dated 19.09.2019.
The petitioners were appointed as Government Pleader and Assistant Government Pleaders in various courts in Krishna and Prakasam Districts by separate Government Orders on different dates, as shown in the table.
I II III IV
Name of the petitioner Designation Appointed Year of expiry
by G.O of tenure
1 G. Srikanth AGP for SCJ Court, G.O.Rt.No.26 2021
Vijayawada Dt.10.01.2018
2 Y. Anil Kumar AGP for SCJ Court, G.O.Rt.No.73 2022
Markapur Dt.01.03.2019
3 V. Venkata Rami Reddy AGP for JCJ Court, G.O.Rt.No.59 2022
Giddalur Dt.20.02.2019
4 B. Ravi Kumar AGP for SCJ & JCJ G.O.Rt.No.2 2021
Court, Darsi Dt.02.01.2018
5 M. Prema Leelavathi AGP for JCJ Court, G.O.Rt.No.76 2022
Kanigiri Dt.07.03.2019
MSM,J
WP_16472_2019 & batch
2
6 K. Venkata Lakshmi AGP for SCJ & JCJ G.O.Rt.No.184 2020
Narayana Court, Kandukuru Dt.21.08.2017
7 S. Purna Chandra Rao AGP for SCJ Court, G.O.Rt.No.26 2021
Vijayawada Dt.10.01.2018
8 G. Subba Rao GP for DJ Court, G.O.Rt.No.14 2022
Machilipatnam Dt.07.01.2019
9 P. Baji Sherif Khan AGP for JCJ Court, G.O.Rt.No.319 2021
Gudivada Dt.15.11.2018
10 B. Rama Krishna Rao AGP for SCJ Court, G.O.Rt.No.68 2021
Nandigama Dt.15.03.2018
11 K. Abraham AGP for JCJ Court, G.O.Rt.No.13 2022
Tiruvuru Dt.07.01.2019
12 K. Marshall Stalin AGP for SCJ Court, G.O.Rt.No.26 2021
Vijayawada Dt.10.01.2018
13 A. Someswara Rao AGP for JCJ Court, G.O.Rt.No.207 2020
Gannavaram Dt.14.09.2017
14 M. Pamulu AGP for JCJ Court, G.O.Rt.No.25 2021
Kaikaluru Dt.10.01.2018
The tenure of appointment of these petitioners was for a period of three years from the date of assumption of charge of the post or till the termination of his/her services, whichever is earlier. The petitioners assumed their office on different dates and discharging their duties without any adverse remarks. As the date of assumption of charge of the petitioners is not placed on record, the year of expiry of tenure is shown in Column No.IV.
While the petitioners are discharging their duties in various Courts, the 2nd respondent issued impugned Memo No.1794/57/G/2019 dated 19-09-2019, calling fresh panels for the appointment to the post of Government Pleader and Assistant Government Pleaders in all the districts in the State including Prakasam District and Krishna District. The said action of the 2nd respondent is arbitrary, unreasonable, contrary to Andhra Pradesh Law Officers (Appointment and Conditions of Service), Instructions, 2000, Memo No. 309 dated 16-10-2010 and in violation of Article 14 of the Constitution of India. It is a settled law that every action of the executive authority must be subject to rule of law and informed by reason. So, whatever be the activity of the public authority it should meet the test of Article 14 of the constitution of MSM,J WP_16472_2019 & batch 3 India. No reasons are mentioned in the impugned Memo No. 1794/57/G/2019 dated 19.09.2019 in calling fresh panels for appointment of Government law Officers in the entire State by issuing the impugned memo mentioning the names of the each District. The action of the 2nd respondent is against the rule of law, arbitrary and in violation of the Article 14 of the Constitution of India, even without giving opportunity to the petitioners and other Law officers in the State i.e., Government Pleaders and Assistant Government Pleaders. In the absence of reasons, the impugned action of the State in calling fresh panels to replace the petitioners by appointing other Advocates in place of the petitioners as law Offices of the Government is unauthorized and impermissible. The petitioners were appointed through the valid and legal procedure laid down in the G.O. MS No. 187, Law, dated 06-12-2000, after assessing their ability and efficiency. As such the appointments of the petitioners were based on the evaluation of their efficiency and merit. Instruction No. 5 of Andhra Pradesh Law Officers (Appointment & Conditions of Service) Instructions, 2000, provides the procedure for appointment of Law Officers in the District Courts and City Courts subordinate to High Court. Sub-clause (2) of Instruction No. 5 provides that the District Collector shall prepare a panel of advocates well in advance before the expiry of the term of the incumbents and send the same to the Government to the consideration. Instruction No. 8 of the A.P. Law Officers (Appointment & Conditions of Service) Instructions, 2000 provides that the Law Officers shall ordinarily be appointed for a term of three years. The Law Officers so appointed may consider for second term, if the Government is satisfied that he has proven efficiency, MSM,J WP_16472_2019 & batch 4 high rate of success and good performance and in third time in exceptional cases. The State Government also issued a Circular Memo No. 309 LSP/111/L2/2010 dated 16.10.2010 wherein it was stated in paragraph No. 11 that all the District Collectors are requested to prepare the panel six months before the expiry of the term of the 1aw officers and send panels of Advocates to the Government at least three months before the expiry of the term of the incumbents to make the regular appointment of law officers in time. The impugned action of the 2nd respondent in calling fresh panels much earlier to the period prescribed in Circular Memo No. 309 LSP/112/L2/2010 is arbitrary and illegal and against the Circular Memo No.309 LSP/111/L2/2010 issued by the 2nd respondent. Viewed from any angle the impugned action of the 2nd respondent, calling for fresh panels for the appointment of Government Pleaders and Assistant Government Pleaders is against the Rule of Law, lack of transparency and uninformed by reason. As such the said action respondent is arbitrary, illegal and in violation of Article 14 of Constitution of India. Therefore, the memo issued by the 2nd respondent is liable to be quashed or set aside for the reasons stated above.
The 3rd respondent calling fresh panels from the District & Sessions Judge, Prakasam District Ongole vide file No.Comp No.C5/229798/2019, dated 12/10/2019 for making regular appointment of Law Officers and requested the District & Sessions Judge to furnish the panel of Advocates not less than five names. Similarly, for the The action of the 3rd respondent in requesting the 4th respondent and the action of the Respondent No. 5 in MSM,J WP_16472_2019 & batch 5 requesting the Respondent No. 6 in calling for fresh panels for appointment of Law Officers is at the instance of the 2nd respondent amounts to an abdication of power and as against the instructions issued by the 1st respondent vide G.O.M.S No.187, Law (L) dated 06-12-2000 for the appointment and conditions of Service of Law Officers and the circular memo No. 309 LSP/111/L2 /2010 dated 16-10-2010.
The impugned memo dated 19-09-2019 issued in exercise of the executive power of the State must satisfy Article 14 of the Constitution of India, as the impugned action is arbitrary, it must be struck down. The impugned State action is uninformed by reason in as much discernible principle on which it is based. All the existing posts of Government Pleaders and Assistant Government pleaders in the Districts through out the State of Andhra Pradesh is governed by the Andhra Pradesh Law Officers (Appointment & Conditions of Service) Instruction, vide G.O. No. 187, Law (L) dated 06-12-2000. In case of law officers who are in the first term in office are entitled to be considered for the second term as per the Instruction No. 8(2) and duty is cast upon the respondents to consider the cases of the law officers who served first term in the office as Government Pleaders/Assistant Government Pleaders. The action of the second respondent in taking away the right of the incumbents of the 1st term for the consideration of their cases for the second term is arbitrary and illegal. The action of the second respondent in calling fresh appointment of Law Officers even much before six months to the expiry of the tenures of the petitioners without assigning any MSM,J WP_16472_2019 & batch 6 reason is arbitrary and in violation of Article 14 of Constitution of India.
The specific assertion made by the petitioners is that, mere change of Government is irrelevant to appoint advocates as Government Pleaders and Assistant Government Pleaders replacing the petitioners who are holding public offices is arbitrary and illegal and the petitioners 1 to 7 and 9 to 14 should be allowed to function as Assistant Government Pleaders and the petitioner No. 8 should be allowed to function as Government Pleader for the remaining term. Issue of administrative instructions in exercise of the executive powers of the State will not take away the right conferred on the petitioners. The second respondent caused harassment and mental agony to the petitioners and also to the other law officers in all the Districts in the State. The action of the second respondent amounts to misfeasance in office and the second respondent is liable to pay compensation for the harassment and mental agony caused to the petitioners by issuing the impugned Memo No.1794/57/G/ 2019 dated 19.09.2019, directing the respondents 3 and 6 (Prakasam and Krishna District Collectors) to furnish fresh panel for appointment to the posts of Government Pleaders and Assistant Government Pleaders to the Courts in the respective Districts is highly arbitrary and illegal and exercise of executive authority and therefore, the petitioners approached this Court for grant of relief as stated supra.
The second respondent filed counter denying material allegations while admitting issue of Memo No.1794/57/G/ 2019 dated 19.09.2019, wherein instructions were issued calling for MSM,J WP_16472_2019 & batch 7 appointment for the post of Government Pleaders and Assistant Government Pleaders in various Courts of Prakasam and Krishna Districts in place of these petitioners. It is contended that, this writ petition is liable to be dismissed in limini, as, no cause of action arose and no interference of this Court under Article 226 of the Constitution of India is required, as the Government issued Memo No.1794/57/G/2019 dated 19.09.2019 based on executive instructions calling for fresh panels for the posts of Government Pleaders and Assistant Government Pleaders for the Courts in Prakasam and Krishna Districts. The contention of the second respondent is that, Memo No.1794/57/G/2019 dated 19.09.2019 is in accordance with law and the contention that it is contrary to the instructions issued in A.P. Law Officers (Appointment and Conditions of Service), Instructions, 2000 and Memo No.309 dated 16.10.2019 is devoid of merit and the said contention has no legal foundation.
It is further contended by the second respondent that the fresh panels were called exercising power within the framework of the guidelines issued in Andhra Pradesh Law Officers (Appointment and Conditions of Service) Instructions, 2000 and Memo No.309 dated 16.10.2019, that, there is no element of arbitrariness as to canvass that the aforesaid action in calling for the fresh panels as arbitrary and that calling for fresh panels is within the ambit of instructions issued under G.O.Ms.No.187 dated 06.12.2000.
It is contended that, there is no infraction in the government instructions in calling for the fresh panels by the second MSM,J WP_16472_2019 & batch 8 respondent and it does not amount to violation of fundamental right to interfere by this Court in such instructions while exercising judicial review under Article 226 of the Constitution of India, so as to enforce executive instructions which are non- statutory in nature and unenforceable through writ proceedings. The action of the second respondent in calling for fresh panels is not punitive so as to assign reasons for the action contemplated in the impugned memo. The instructions are general so as to utilize the functioning of the Law Officers for the purpose of defending their cases in effective manner as trust and confidence mentioned in the said conditions and that the petitioners cannot challenge the impugned memo on the ground of unreasonableness in issuing the impugned memo and that the government intended to engage Law Officers so as to effectively defend the cases and pursue the cases on behalf of the Government in the capacity of Law Officer and thereby calling for fresh panels is not an illegality.
It is further contended that, the term of Law Officer is for a period of three years as spelled out under Instruction No. 8 of the said instructions. It is pertinent to state that the said instruction is conditioned by Instruction No.9. Instruction No.9 inter alia stipulates that, notwithstanding anything contained in Instruction No.8, either the Government or the Law Officer may terminate the engagement with one month's notice. Further, the proviso to Instruction No.9, confers power on the government to terminate the engagement by paying one month honorarium in lieu of one month's notice. In the teeth of the said instructions, the term of Law Officer is terminable at the option of either of the parties and MSM,J WP_16472_2019 & batch 9 the word 'engagement' was consciously used in Instruction No.9 of the said instructions which indicates nature of appointment of Law Officers. Therefore, the petitioners have no indefeasible right to continue as Government Pleaders and Assistant Government Pleaders and question the memo issued by the Government in terms of G.O.Ms.No.187 Law dated 06.12.2000 and therefore, the premature writ petition is liable to be dismissed, since this Court cannot exercise power of judicial review under Article 226 of the Constitution of India, at this stage and prayed for dismissal of the writ petition.
During hearing, learned counsel for the petitioners Sri Prabhunath Vasireddy contended that removal of law officers even before completion of their first term on account of change of party in power i.e., Government by issuing the memo impugned in this writ petition and calling for fresh panels from the District Collectors in consultation with the District Judges is nothing but arbitrary exercise of power and contrary to the Rules. Learned counsel for the petitioners while contending that the office of the Law Officer is a public office and therefore the action of the respondents in contemplating to terminate the services of Law Officers from the public office by issuing such memo on account of change of the Government in the State is violative of Article 14 of the Constitution of India. To substantiate his contention, learned counsel for the petitioner placed reliance on the judgment in State of U.P. v. U.P. State Law Officers Association and others1 and 1 (1994) 2 Supreme Court Cases 204 MSM,J WP_16472_2019 & batch 10 drawn attention of this Court to Paragraph No.5 and Kumari Shrilekha Vidyarthi v. State of U.P2.
It is also contended that issue of memo to terminate the services of these petitioners by exercising executive power is contrary to Article 16 of the Constitution of India, when the petitioners are appointed by the Government order, issuing such Government Order in the name of Governor of Andhra Pradesh, calling for fresh panels without terminating the services of these petitioners by a Government Order is a serious illegality, more so, the memo issued by the second respondent is illegal and arbitrary.
Learned counsel for the petitioner further contended that Instruction No.9 is only enabling the government to terminate the services of the law officers with one month notice or by paying one month remuneration to the law officers. Though the Government Pleader was appointed by a Government Order, by exercising power under Executive Instructions i.e Instruction No.9, a Government Pleader can be removed. Therefore, by following the Executive Instructions, such order can be passed and it is not vitiated by any illegality and the judgment of Division Bench in Government of Andhra Pradesh and others v. Smt. Pushpendar Kaur3 is not applicable to the present facts of the case and prayed to set-aside the memo declaring the same as illegal and arbitrary and without authority under law.
Whereas, the learned Advocate General contended that, none of the judgments relied on by the learned counsel for the 2 1991 AIR 537 3 AIR 2004 AP 41 MSM,J WP_16472_2019 & batch 11 petitioners are applicable to the present facts of the case and that the writ petition is premature. Even otherwise, the judgment of the Division Bench of High Court in Government of Andhra Pradesh and others v. Smt. Pushpendar Kaur (referred supra) is straightaway applicable to the present facts of the case and by applying the principle laid down in the above judgment, the writ petition is liable to be dismissed in limini. That apart, the material on record, more particularly, paragraph No.5 of the writ affidavit will not come in the way to exercise such power, as the government did not like to terminate the services of those Law Officers referred in paragraph No.5 of the affidavit.
Learned counsel for the petitioners also contended that, exempting two officers who were appointed by the present political party in power itself indicates malafides on the part of the Government in removal, the action of the respondents contemplating to remove the law officers in the State by arbitrary power, the Court can interfere with such action under Article 226 of the Constitution of India by exercising power under judicial review.
Learned counsel for the petitioners also placed reliance on the judgments of the Supreme Court in support of his contention and they will be discussed at appropriate stage, while deciding the real controversy between the parties.
Considering rival contentions, perusing the material available on record, the point that arises for consideration is as follows:
MSM,J WP_16472_2019 & batch 12 "Whether the petitioners are entitled to continue as Law Officers of various courts mentioned in the table when the State is not inclined to utilize their services as Law Officers. If so, whether the memo issued by Respondent No.2 calling for fresh panels be declared as illegal and arbitrary and whether the same is liable to be set-aside?."
P O I N T:
Undisputedly, the petitioners were appointed as Government Pleaders and Assistant Government Pleaders in various Courts vide different Government Orders mentioned in the table hereinabove and the tenure of the petitioners is not yet expired, still they are continuing as Government Pleaders and Assistant Government Pleaders in various Courts. But, the Government issued Memo No.1794/57/G/ 2019 dated 19.09.2019 duly signed by the Secretary to Government, Legal and Legislative Affairs & Justice, Law Department/second respondent herein, drawing the attention of the Collectors and District Magistrates, Krishna and Prakasam Districts to furnish fresh panels for appointment to the posts of Government Pleader and Assistant Government Pleaders in various courts. These petitioners are the Law Officers shown in the list enclosed to the Memos issued by the second respondent. In pursuance of the Memo issued by the second respondent, the District Collector & District Magistrate, Krishna, Machilipatnam, addressed a letter to the District Judge, Krishna, Machilipatnam dated 10.10.2019 to furnish fresh panel for appointment to the posts of Government Pleader and Assistant Government Pleaders to the Courts in the District specifying the number of advocates to be sent in the panel in each courts and other details. Similarly, the District Collector & District Magistrate, Prakasam District, Ongole MSM,J WP_16472_2019 & batch 13 addressed letter to the District & Sessions Judge, Prakasam District, Ongole vide Comp No.C5/229798/2019 dated 12.10.2019 calling for fresh panels from eligible advocates willing to work as Law Officers in various Courts of the district. Thus, before expiry of the tenure of appointment of these petitioners shown in the table, the second respondent, who is an executive authority issued memo calling for fresh panels when the petitioners were appointed as Law Officers in the Districts referred supra, they are entitled to continue to work in the same capacity till completion of their tenure, subject to certain other requirements specified in the instructions relating to Andhra Pradesh Law Officers (Appointment and Conditions of Service), Instructions, 2000, which came into force vide G.O.Ms.No.187 Law (L) 06.12.2000.
Sri Prabhunath Vasireddy, learned counsel for the petitioners has drawn attention of this Court to the instructions of appointment to work as Law Officers in the District. Instruction No.5 deals with Appointment of Law Officers in the District Courts and City Courts Subordinate to the High Court. Sub-clause (1) says that 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.
Learned counsel for the petitioners relied on sub-clause (2) of Instruction No.5 to contend that the District Collector shall prepare a panel of Advocates well in advance before expiry of the term of incumbents and send the same to the Government for MSM,J WP_16472_2019 & batch 14 consideration, thereby, calling upon the District Collectors to send fresh panels for appointment to the post of Government Pleaders and Assistant Government Pleaders in various Courts of the Districts is pre-mature, since called for fresh panels is before completion of tenure of these petitioners. But, Note (II) of sub- clause (2) of Instruction No.5 made it clear that the Collectors shall, while making recommendation to the Government, furnish the details mentioned therein. Sub-clause (3) of Instruction No.5 further says that, no person shall be eligible for appointment
(a) as Government Pleader unless he has at least ten years of Standing at the Bar;
(b) in as Assistant Government Pleader;-
a. in the Senior Civil Judges Court unless, he has at least seven years of Standing at the Bar; and b. in the Junior Civil Judges Court unless, he has at least five years of Standing at the Bar.
But, more stress is given by the learned counsel for the petitioners to sub-clause (4) of Instruction No.5, which says that, on receipt of a panel sent by the District Collector under sub- instruction (1), the Government in Law Department shall consider the same and appoint one among the panel, as Law Officer for a term prescribed under Instruction No. 8 or call for a fresh panel.
Instruction No.8 prescribed the term of Law officers and according to it, Law Officers shall ordinarily be appointed for a term of three years. The Law Officers so appointed may be considered for a second term, if the Government are satisfied that he has proven efficiency, high rate of success and good MSM,J WP_16472_2019 & batch 15 performance and for a third term in exceptional cases, subject to proviso contained in Instruction No.8.
Taking advantage of Instruction No. 8 of the instructions issued by the Government in G.O.Ms.No.187 Law (L) dated 06.12.2000, it is contended that the petitioners are entitled to continue to discharge their duties as Law Officers in the Courts in which they were appointed for tenure of three years, but sub- clause (4) of Instruction No.5 requires a little elaboration.
Unfettered power is conferred on the Government as per sub-clause (4) of Instruction No.5 to accept the recommendation sent by the District Collector, exercising power under sub-clause (1) or he may call for a fresh panel, if the Government is not willing to appoint any one of the members of the panel as Law Officers. Therefore, it appears that the Government is vested with unfettered power to accept the panel sent by the District Collector-cum- Executive Magistrate or call for a fresh panel.
In the present facts of the case, the petitioners were appointed on different dates as mentioned in Column No.III and their term of three years is likely to be expired on the dates shown in Column No.IV, as such, undisputedly, the tenure of the petitioners is not completed, but, for one reason or the other, the second respondent called for fresh panels during tenure of these petitioners, though the District Collector is under obligation to send the panel within few months before expiry of their tenure on executive instructions of the second respondent.
One of the main contention by the learned Advocate General is that, the relationship between Advocate and Client is based on trust and the relationship that of 'Agent' and 'Principal' and that MSM,J WP_16472_2019 & batch 16 can be terminated at any stage without notice, since the Advocate is representing a party and he has no right to claim his right to continue as an 'Agent' of his client, thereby, it is for the Government to decide whether to engage the services of Law Officers or not and drawn attention of this Court to Instruction No.9 of G.O.Ms.No.187 Law (L) dated 06.12.2000, which deals with Termination of Service. Irrespective of tenure of three years contained in Instruction No. 8, either the Government or the Law Officer may terminate the engagement with one month's notice. Provided that the Government may terminate the engagement by paying one month honorarium in lieu of one month's notice. Thus, it is clear from Instruction No.9 that, engagement of Law Officers can be terminated with one month's notice or by paying one month honorarium in lieu of one month's notice by the Government at any time, irrespective of the term specified in Instruction No.8 of G.O.Ms.No.187 Law (L) dated 06.12.2000. Thus, an exception is carved out by Instruction No.9 to Instruction No.8, as such, unfettered power is conferred on the Government to engage the services of Law Officers with one month's notice or on payment of one month's honorarium in lieu of one month's notice.
The main endeavour of the learned counsel for the petitioners is that, when the petitioners were appointed by an order of the Government issued by exercising power under Article 166 of the Constitution of India, the services of Law Officers cannot be terminated by issuing a memo, calling for fresh panels by the second respondent through the District Collector-cum-District Magistrate.
MSM,J WP_16472_2019 & batch 17 Whereas, learned Advocate General for the State would contend that the executive order can be passed by exercising power under Article 162 of the Constitution of India and Instruction No.9 permits the executive to issue such instructions. Instruction No.9 also permits either the Government or the Law Officer to terminate the engagement with one month's notice and vide G.O.Ms.No.187 Law (L) dated 06.12.2000, every action taken or order passed by the Government need not be in the name of the Governor.
It is pointed out that, in the absence of definition of State Government in the instructions, the statutory provision has to be interpreted with the aid of General Clauses Act. The General Clauses Act, 1897, defines the 'State Government' to mean 'Governor' vide Section 3(60). A statutory functionary of the State Government thus becomes a functionary as Governor and the business of the State Government under Article 166(3) of the Constitution of India, includes such statutory business.
When the State Government meant as Governor, as per Section 3(60) of the General Clauses Act, in view of the language used in Instruction No.9, which deals with termination of service of Law Officers, the termination must be in the name of the Governor by issuing a notice or by paying one month honorarium. Therefore, the Law Secretary/second respondent who is an executive of the State is not entitled to issue any order under Instruction No.9 and in fact, no such notice terminating the services of these petitioners exercising power under Instruction No.9 was issued by the executive/second respondent herein, except calling for fresh panels MSM,J WP_16472_2019 & batch 18 from the Collectors in terms of G.O.Ms.No.187 Law (L) dated 06.12.2000.
The appointments shall be made by the Government i.e. by issuing Government Order in the name of the Governor of Andhra Pradesh. Therefore, calling for panels by the second respondent/Law Secretary from the District Collectors concerned is only an executive act, not a statutory act. But, termination of Law Officers or disengaging the services of Law Officers must be by way of Government Order issued in the name of the Governor under Article 166 of the Constitution of India, but not by passing an executive order, exercising power under Article 162 of the Constitution of India.
As on date, except calling for fresh panels, no further steps have been taken by the Government. But, for one reason or the other, in paragraph No.14 of the counter filed by the second respondent, it is asserted that the memo issued by the Government calling for fresh panel for appointment of Government Pleaders from the concerned District Magistrates cannot be construed and termed as arbitrary and the said memo was issued in exercise of the powers conferred on the Government. Calling for fresh panels would involve the process of claims of all eligible persons including the present holders of the post and as such the same cannot be portrayed as arbitrary and violative of Article 14 of the Constitution of India. The Memo issued by the second respondent to the District Collectors is only an interdepartmental communication between the departments and it is not an order. Therefore, issue of such memo in exercise of the powers conferred MSM,J WP_16472_2019 & batch 19 on the Government by virtue of Article 162 of the Constitution of India, cannot be declared as arbitrary.
A memorandum, more commonly known as memo¸ is a short message or record used for internal communication in a business, and primary form of internal written communication. Therefore, the memo is only internal correspondence between the two branches of the department or two offices, but that is not the communication to the public. Communication to the public is only by way of Gazette notification of the State. The memo cannot be construed as an order, but it is only an interdepartmental communication. Hence, the memo cannot be said to be an executive order, but it is only a communication by the second respondent to the District Collector-cum-District Magistrate.
In Messrs. Ghaio Mal and sons v. State of Delhi and others4, the Supreme Court had an occasion to decide an identical question of issuing memos. The Apex Court while decided the question as to whether the letter in question was the order of the Chief Commissioner or not and held as follows:
"In the first place it is an inter-departmental communication. In the second place it is written with reference to an earlier communication made by the Excise Commissioner, that is to say, ex facie, it purports to be a reply to the latter's letter of August 31, 1954. In the third place the writer quite candidly states that he had been "
directed to say " something by whom, it is not stated. This makes it quite clear that this document is not the order of the Chief Commissioner but only purports to be a communication at the direction of some unknown person-of the order which the Chief Commissioner had made. Indeed in paragraph 7 of the respondents' statement filed in the High Court on February 2,1955, this letter has been stated to have " conveyed the sanction of the Chief Commissioner of the grant of license to the 5th respondent ". A 4 AIR 1959 SUPREME COURT 65 MSM,J WP_16472_2019 & batch 20 document which conveys the sanction can hardly be equated with the sanction itself Finally the document does not purport to have been authenticated in the form in which authentication is usually made. There is no statement at the end of the letter that it has been written " by order of the Chief Commissioner ". For all these reasons it is impossible to read this document as the order of the Chief Commissioner.
In the view we have taken it is not necessary for us to consider whether the action taken under the Excise Act and the rules thereunder was a judicial or an executive action, for even if it were of the latter category the letter of December 14, 1954, cannot be treated as an order properly authenticated to which the presumption raised by Art. 166 of the Constitution will attach. For reasons stated above we hold that there was no valid order granting the L-2 license to Messrs. Gainda Mall Hem Raj and that in the eye of the law the vacancy arising on the closure of the business by Messrs. Army and Navy Stores still remains unfilled. The applications of the appellants and other applicants were for a grant of L-2 license for 1954/ 1955. That year has gone past and accordingly in the changed circumstances we direct the Chief Commissioner to fill up the vacancy caused by the closure of the business by Messrs. Army and Navy Stores by inviting applications from intending licensees including the appellants and Messrs. Gainda Mall Hem Raj and granting the same to the most suitable party. We, therefore, accept this appeal, reverse the order of the High Court and issue a mandamus to the effect aforesaid and also direct the respondents Nos. 1 to 4 to pay the appellants' costs of this appeal and of the proceedings in the High Court out of which this appeal has arisen. Messrs. Gainda Mall Hem Raj are to bear their own costs throughout. Appeal allowed.
For the reasons stated above, the Apex Court held that, there was no valid order granting the L.2 license. The letter in question was an inter-departmental communication written with reference to an earlier communication made by the Excise Commissioner. Ex facie, it purported to be a reply to the Excise Commissioner's letter. Hence, the letter is not an order, but only a memo and not required MSM,J WP_16472_2019 & batch 21 to comply with the requirements under Article 166(2) of the Constitution of India.
From the reading of the principle laid down in the above judgment, the purport of the document under challenge is to be taken into consideration to find out whether it was in the nature of an order or interdepartmental communication. If, it is an order, passed by the State Government, it must be by way of Government Order issued in the name of the Governor of Andhra Pradesh, based on the Business Rules issued by the Governor of State under Article 166(3) of the Constitution of India.
In the present case also, the memos issued by the second respondent impugned in this writ petition to the District Collectors, Krishna and Prakasam Districts is extracted hereunder for better appreciation of the case, to decide whether it is an order or an interdepartmental communication.
GOVERNMENT OF ANDHRA PRADESH
LAW (G) DEPARTMENT
Memo No.1794/57/G/2019 dated 19.09.2019
Sub: LAW OFFICERS - KRISHNA DISTRICT - Furnishing of fresh panels for making regular appointment of Government Law Officers for all sub-ordinate courts in the State - Fresh panels called for - reg.
Ref: 1. G.O.Ms.No.187, Law, dated 06.12.2000.
2. From the Prl. Advisor to the Hon'ble Chief Minister, Letter No.210/Prl.Adv.CM/2019 dated 25.07.2019
3. Note from the Secretary, Law dated 13.09.2019. The attention of the Collector and District Magistrate, Krishna District is invited to the references 2nd and 3rd cited directed to furnish fresh panel for appointment to the posts of Government Pleader and Assistant Government Pleaders to the Courts in the list enclosed.
2. This may be treated as MOST URGENT.
G. MANOHARA REDDY Secretary to Government, Legal and Legislative Affairs & Justice, Law Department To The Collector and District Magistrate, Krishna District Copy to: Prl.Adv. to the Hon'ble Chief Minister P.S. to Secretary to Government, Legal and Legislative Affairs & Justice, Law Department //FORWARDED BY ORDER// MSM,J WP_16472_2019 & batch 22 GOVERNMENT OF ANDHRA PRADESH LAW (G) DEPARTMENT Memo No.1794/57/G/2019 dated 19.09.2019 Sub: LAW OFFICERS - PRAKASAM DISTRICT - Furnishing of fresh panels for making regular appointment of Government Law Officers for all sub-ordinate courts in the State - Fresh panels called for - reg.
Ref: 1. G.O.Ms.No.187, Law, dated 06.12.2000.
2. From the Prl. Advisor to the Hon'ble Chief Minister, Letter No.210/Prl.Adv.CM/2019 dated 25.07.2019
3. Note from the Secretary, Law dated 13.09.2019. The attention of the Collector and District Magistrate, Prakasam District is invited to the references 2nd and 3rd cited directed to furnish fresh panel for appointment to the posts of Government Pleader and Assistant Government Pleaders to the Courts in the list enclosed.
2. This may be treated as MOST URGENT.
G. MANOHARA REDDY Secretary to Government, Legal and Legislative Affairs & Justice, Law Department To The Collector and District Magistrate, Prakasam District Copy to: Prl.Adv. to the Hon'ble Chief Minister P.S. to Secretary to Government, Legal and Legislative Affairs & Justice, Law Department //FORWARDED BY ORDER// The purport of the memo is, request is made to furnish fresh panels of advocates for being appointed as Government Pleaders and Assistant Government Pleaders in various Courts in both the districts and it is numbered as Memo No.1794/57/G/2019 dated 19.09.2019. Such memo was issued based on the letter from Principal Advisor to the Hon'ble Chief Minister vide Letter No.210/Prl.Adv.CM/2019 dated 25.07.2019 and Note from the Secretary, Law dated 13.09.2019. Therefore, the memos impugned in this writ petition is only an interdepartmental communication calling for fresh panels of advocates for appointment to the post of Government Pleader and Assistant Government Pleaders in various Courts of Prakasam and Krishna Districts. Such memo need not be issued in the name of the Governor of Andhra Pradesh in strict adherence to Article 166 of the Constitution of India and it can be MSM,J WP_16472_2019 & batch 23 issued exercising executive power under Article 162 of the Constitution of India.
Chapter II of the Constitution of India deals with 'Executive'. Article 154 says that (1) the Executive Power of State shall be vested in the Governor and shall be exercised by him either directly or through officer subordinate to him in accordance with the Constitution and (2)(a) nothing in this article shall be deemed to transfer to the Governor any functions conferred by any existing law on any other authority, or, (b) prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor. Therefore, by virtue of Clause (2) of Article 154 of the Constitution of India, the orders passed by the State shall be signed by the Executive issuing orders in the name of the Governor, in view of the Business Rules framed by the Governor, exercising power under Article 166(3) of the Constitution of India. But, still, Article 162 of the Constitution of India prescribes certain limitations on the executive powers of the State. The executive power of the State shall extend to the matters with respect to which the Legislature of the State has to make laws, provided that, in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof. Therefore, the laws cannot be made by the executive of the State and such power has to be exercised by the State or Parliament alone calling for fresh panels from the District Collector by issuing memo impugned in this writ petition by the second respondent MSM,J WP_16472_2019 & batch 24 cannot be said to b an order of the Stat to issue the same in the name of the Governor of Andhra Pradesh in exercise of power under Article 166 of the Constitution of India. Of course, it is only an interdepartmental communication between the District Collector-cum-District Magistrate to the Secretary to the State, Law and Legislative Affairs. Therefore, such memo need not be issued in the name of the Governor of Andhra Pradesh, since it is not an order, but only a request made by the Law Secretary to send panel on behalf of the State.
Article 166 of the Constitution of India deals with Conduct of business of the Government of a State and consists of three limbs. Clause (1) says that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. Clause (2) further says that orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order on instruction which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. At the same time, Clause (3) conferred power on the Governor to make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion. Thus, Clause (1) mandates issue of an order by the executive on behalf of the State and it shall in the name of the Governor only and a direction is provided in MSM,J WP_16472_2019 & batch 25 Clause (2) in terms of Rules framed under Clause (3) of Article 162 of the Constitution of India.
An identical situation came up before the Apex Court in various judgments starting from Dattatreva Moreshwar Pangarkar v. The State of Bombay5, wherein the Apex Court observed that, strict compliance with the requirements of Article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of that article are not complied with, the resulting immunity cannot be claimed by the State. This, however, does not vitiate the order itself. Article 166 directs all executive action to be expressed and authenticated in the manner therein laid down but an omission to comply with those provisions does not render the executive action a nullity. Therefore, all that the procedure established by law requires is that the appropriate Government must take a decision as to whether the detention order should be confirmed or not under section 11(1). The same view was reiterated by the Supreme Court in The State of Bombay v. Purshottam Jog Naik6, where it was pointed out that though the order in question then was defective in form it was open to the State Government to prove by other means that such an order had been validly made. This view has been reaffirmed by this Court in subsequent decisions : see Ghaio Mall and Sons v. The State of Delhi (referred supra) and it is, therefore, settled law that provisions of Article 166 of the Constitution are only directory and not mandatory in character and, if they are not complied with, it 5 1952 CriL.J.955 6 1952 CriL.J.1269 MSM,J WP_16472_2019 & batch 26 can be established as a question of fact that the impugned order was issued in fact by the State Government or the Governor.
Relying on the judgment of Dattatreva Moreshwar Pangarkar v. The State of Bombay (referred supra), the Apex Court in M/s. Bijoya Lakshmi Cotton Mills Limited v. State of West Bengal7 referred to the decision in R. Chitralekha v. State of Mysore8, explained the scope of Article 166 of the Constitution of India that, under Article 166 of the Constitution all executive action of the Government of a State shall be expressed to be taken in the name of the Governor, and that orders made in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor and the validity of an order which is so authenticated shall not be called in question on the ground that it is not an order made by the Governor. If the conditions laid down in this Article are complied with, the order cannot be called in question on the ground that it is not an order made by the Governor. It is contended that as the order in question was not issued in the name of the Governor the order was void and no interviews could be held pursuant to that order. The law on the subject is well-settled.
Agreeing with the view expressed in Dattatreva Moreshwar Pangarkar v. The State of Bombay (referred supra) and The State of Bombay v. Purshottam Jog Naik (referred supra), the Constitutional Bench of Supreme Court in M/s. Bijoya Lakshmi Cotton Mills Limited v. State of West Bengal (referred supra), concurred with the view expressed, since the in-charge minister 7 AIR 1967 SUPREME COURT 1145 8 [1964] 6 SCR 368 MSM,J WP_16472_2019 & batch 27 was given power to give standing order regarding disposal of cases in the department under the Rules of Business issued by the Governor exercising power under Article 166(3) of the Constitution of India.
In Gullapalli Nageswara Rao and others v. A.P. State Road Transport Corporation and other9, similar question came up for consideration while deciding the validity of the order of the Government. The Supreme Court after discussing the entire law as to the powers of the executive of the Governor and validity of the orders, passed by the executive in the name of the Governor of Andhra Pradesh, expressed its opinion candidly and observed that, the State Government is an impersonal body and it can only function through the machinery and in the manner prescribed by law. Clause (60) of Section 2 of the General Clauses Act, 1897, defines 'State Government' as respects anything done or to be done after the commencement of the Constitution (VII Amendment) Act, 1956, to mean, in a State, the Governor, and in a Union Territory, the Central Government. Under Article 154(1) of the Constitution, 'the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution'. Article 163 enacts that 'there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion'. Article 166(1) enjoins that 'all executive action of the Government of a State shall be expressed to be taken in the 9 AIR 1959 SUPREME COURT 308 MSM,J WP_16472_2019 & batch 28 name of the Governor'. Sub-clause (2) of that Article says that 'orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor'. And under sub- clause (3), 'the Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion'. In exercise of the powers conferred by Clauses (2) and (3) of Article 166 of the Constitution, the Government of Madras made rules styled as 'The Madras Government Business Rules and Secretariat Instructions'. Rule 9 thereof prescribes that without prejudice to the provisions of Rule 7, the Minister in charge of a department shall be primarily responsible for the disposal of the business appertaining to that department. Rule 21 enacts that except as otherwise provided by any other Rule, cases shall ordinarily be disposed of by or under the authority of the Minister in charge who may, by means of standing order, give such directions as he thinks fit for the disposal of cases in the department. Copies of such standing orders shall be sent to the Governor and the Chief Minister. Rule 11 says that 'all orders or instruments made or executed by or no behalf of the Government of the State shall be expressed to be made or executed in the name of the Governor'. Under rule 12, 'every order or instrument of the Government of the State shall be signed either by a Secretary, an Additional Secretary, a Joint Secretary, a draftsman, a Deputy Secretary, an Under Secretary or an Assistant Secretary to the Government of the State or such MSM,J WP_16472_2019 & batch 29 other officers as may be specially empowered in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument'. The Apex Court further held as follows:
"After the formation of the Andhra State on October 3, 1953, the rules made by the Governor of Madras, under the provisions of the States Reorganization Act, continue to be the rules of the Andhra State till they are amended in accordance with such law. The Governor of Andhra State, in exercise of the powers conferred by clauses (2) and (3) of Article 166 of the Constitution, directed that until other provisions are made in this regard, 'the business of the Government of Andhra be transacted in accordance with the Madras Government Business Rules and Secretariat Instructions in force on the first day of October, 1953'. On October 26, 1956, after the formation of the Andhra Pradesh State, as the Andhra Pradesh was not a new State but a continuation of the Andhra State, though there is change in its name, the business rules of the Andhra State continue to govern the Secretariat of the Andhra Pradesh Government. The effect of the aforesaid provisions may be stated thus : A State Government means the Governor; the executive power of the State vests in the Governor; it is exercised by him directly or by officers subordinate to him in accordance with the provisions of the Constitution; the Ministers headed by the Chief Minister advise him in the exercise of his functions; the Governor made rules enabling the Minister in charge of particular department to dispose of cases before him and also authorizing him, by means of standing orders, to give such directions as he thinks fit for the disposal of the cases in the department. Pursuant to the rule, the record discloses, the Chief Minister, who was in charge of Transport, had made an order directing the Secretary to Government, Home Department, to hear the objections filed against the scheme proposed by the State Transport Authority."
In the facts of the above judgment, a deviation is complained in issuing the order by the executive and the Constitutional Bench of the Apex Court examined the issue of validity of the three deviations of the State Government from fundamental judicial procedure. In the facts of the above judgment, the officer who received the objections of the parties and heard them personally or through their representatives, was the Secretary of the Transport Department. Under the 'Madras Government Business Rules and Secretariat Instructions' made by the Governor under Article 166 of the Constitution, the Secretary of a department is its head. One of the parties to the dispute before the State Government was the Transport Department functioning as a statutory authority under MSM,J WP_16472_2019 & batch 30 the Act. The head of that department received the objections, heard the parties, recorded the entire proceedings and presumably discussed the matter with the Chief Minister before the latter approved the scheme. Though the formal orders were made by the Chief Minister, in effect and substance, the enquiry was conducted and personal hearing was given by one of the parties to the dispute itself. It is one of the fundamental principles of judicial procedure that the person or persons who are entrusted with duty of hearing a case judicially should be those who have no personal bias in the matter. The Apex Court considered the objections raised as to the validity of the order due to non-compliance of requirement under Article 166 of the Constitution of India. But, finally concluded that the order is valid, in view of the Business Rules adopted by the State of Andhra Pradesh, after its bifurcation from the State of Madras, since the Secretary is the executive head of the department and therefore, issue of memo by the second respondent, exercising executive power as per Business Rules of the State of Andhra Pradesh after its bifurcation from Telangana cannot be said to be illegal.
In Raipur Transport Company Private Limited v. The State10, the Division Bench of Madhya Pradesh High Court had an occasion to deal with similar issue and followed the principle laid down in Gullapalli Nageswara Rao and others v. A.P. State Road Transport Corporation and other (referred supra).
In The State of Bihar v. Rani Sonabati Kumari11, a specific issue came up for consideration before the Apex Court as to 10 AIR 1969 MADHYA PRADESH 150 11 AIR 1961 SUPREME COURT 221 MSM,J WP_16472_2019 & batch 31 whether a publication of notification under Section 3(1) of Bihar Land Reforms Act which was treated by Subordinate Judge to be disobedience, had been established to be "the act' of the State. The entirety of the argument on this part of the case was rested on the terms of Article 154(1) of the Constitution of India reading: "The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution". In the said case, It was urged that the publication of the notification was "an executive act" - an exercise of the executive power of the State - and since such a power could be exercised either by the Governor directly or through officers subordinate to him, it could not be predicated, from the mere fact that the notification was purported to be made in the name of the Governor, in conformity with the provisions of Article 166(1) that it was the Governor who was responsible for the notification and not some officer subordinate to him. On this reasoning the further contention was, that unless the respondent proved that it was the Governor himself who had authorised the issue of the notification, the State or the State Government could not be fixed with liability therefore, so as to be held guilty of disobedience of the order of injunction. the process of making an order precedes and is different from the expression of it, and that while Article 166(1) merely prescribes how orders are to be made, the authentication referred to in Article 166(2) indicates the manner in which a previously made order should be embodies. As observed by the Privy Counsel in King Emperor v. Sibnath Banerji12 with reference to the term "executive power" in Chapter 2 12 (1945) L.R. 72 IndAp 241 MSM,J WP_16472_2019 & batch 32 of Part 3 of the Government of India Act, 1935 (corresponding to Part VI, Ch. II of the Constitution) - "the term 'executive' is used in the broader sense as including both a decision as to action and the carrying out of the decision". Further, the Apex Court observed as follows:
"Section 3(1) of the Act confers the powers of issuing notifications under it, not on any officer but on the State Government as such through the exercise of that power would be governed by the rules of business framed by the Governor under Art. 166(3) of the Constitution.
But this does not afford any assistance to the appellant. The order of Government in the present case is expressed to be made "in the name of the Governor" and is authenticated as prescribed by Art. 166(2), and consequently "the validity of the order or instrument cannot be called in question on the ground that it is not an order or instrument made or executed by the Governor"".
34. Authorities have, no doubt, laid down that the validity of the order maybe questioned on grounds other than those set out in that Article, but we do not have here a case where the order of the Government is impugned on the ground that it was not passed by the proper authority. Its validity as an order of Government is not in controversy at all.
35. The only point canvassed is whether it was an order made by the Governor or by someone duly authorised by him in that behalf within Art. 154(1). Even assuming that the order did not originate from the Governor personally, it avails the State nothing because the Governor remains responsible for the action of his subordinates taken in his name.
In Emperor v. Sibnath Banerji (1945) L.R. 72 IndAp 241, already referred to, Lord Thankerton pointing out the distinction between delegation by virtue of statutory power therefore and the case of the exercise of the Governor's power by authorized subordinates under the terms of s. 49(1) of the Government of India Act, (corresponding to Art. 154(1)), said :
"Sub-s. 5 of s. 2 (of the Defence of India Act, 1939) provided a means of delegation in the strict sense of the word, namely, a transfer of the power or duty to the officer or authority defined in the sub-section, with a corresponding divestiture of the Governor of any responsibility in the matter, whereas under s. 49(1) of the Act of 1935, the Governor remains responsible for the action of his subordinates taken in his name."
The principles laid down in catena of decisions referred above made it clear that, any order of the State Government must be in the reference of the Governor of the State, but, they cannot be invalidated merely because it was not authenticated under MSM,J WP_16472_2019 & batch 33 Article 166(2) of the Constitution of India and it must be read with reference to Business Rules formulated by the Governor of the State, exercising power under Clause (3) of the Constitution of India.
Learned counsel for the petitioners also relied on the judgment of Supreme Court in Bachhittar Singh v. The State of Punjab13 wherein, it was observed that, Article 166(1) of the Constitution requires that all executive action of the Government of a State shall be expressed in the name of the Governor. Clause (2) of Article 166 provides for the authentication of orders and other instruments made and executed in the name of the Governor. Clause (3) of that Article enables the Governor to make rules for the more convenient transaction of the business of the Government and for the allocation among the Ministers of the said business. What the appellant calls an order of the State Government is admittedly not expressed to be in the name of the Governor. It is also observed that, before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by Clause (1) of Article 166 and then it has to be communicated.
Learned counsel for the petitioner while contending that the second respondent is incompetent to call for panels from the Collectors of Krishna and Prakasam Districts by exercising executive power, drawn attention of this Court to the judgment of Apex Court in Kumari Shrilekha Vidyarthi v. State of U.P (referred supra), where the writ petitioners were appointed as Government Counsel (Civil, Criminal, Revenue) by the State of 13 1963 AIR 395 MSM,J WP_16472_2019 & batch 34 Uttar Pradesh. By its circular dated 6.2.1990 the State terminated the appointment of all Government Counsel with effect from 28.2.1990 as District Government Counsel in all the districts even though those appointments were all individual and liable to be struck down under Article 14 of the Constitution of India. The Apex Court concluded that, viewed in any manner, the impugned circular dated 06.02.90 is arbitrary. It terminates all the appointments of Government Counsel in the districts of the State of Uttar Pradesh by an omnibus order, even though these appointments were all individual. No common reason applicable to all of them justifying their termination in one stroke on a reasonable ground has been shown. The submission on behalf of the State of Uttar Pradesh at the hearing that many of them were likely to be re-appointed is by itself ample proof of the fact that there was total non-application of mind to the individual cases before issuing the general order terminating all the appointments. This was done in spite of the clear provisions in the L.R. Manual laying down detailed procedure for appointment, termination and renewal of tenure and the requirement to first consider the existing incumbent for renewal of his tenure and to take steps for a fresh appointment in his place only if the existing incumbent is not found suitable in comparison to more suitable persons available for appointment at the time of renewal. In the case of existing appointees, a decision has to be first reached about their non- suitability for renewal before deciding to take steps for making fresh appointments to replace them. None of these steps were taken and no material has been produced to show that any existing incumbent was found unsuitable for the office on objective MSM,J WP_16472_2019 & batch 35 assessment before the decision to replace all by fresh appointees was taken. The prescribed procedure laid down in the L.R. Manual which has to regulate exercise of this power was totally ignored. In short, nothing worthwhile has been shown on behalf of the State of U.P. to support the impugned action as reasonable and non- arbitrary. The impugned circular must, therefore, perish on the ground of arbitrariness which is an available ground for judicial review in such a situation. Ground of streamlining the conduct of Government cases and effective prosecution thereof cannot be reasonable basis for the drastic and sweeping action throughout the State, particularly when the provisions in the Legal Remembrancer's manual provide ordinarily for renewal of the tenure of the appointees. It would be too much to assume that every Government Counsel in all the districts of the State of U.P was required to be replaced in order to streamline the conduct of government cases especially when the State itself allege that many of them were to be re-appointed.
There is no dispute with regard to question of law that State cannot terminate the services of all the Government Pleader or Assistant Government Pleaders by a pen stroke for different reasons. More curiously, in the present case, all the Assistant Government Pleaders are proposed to be removed by calling for fresh panels from the District Collectors, who were appointed by the political party in power. On account of change of political party in power in the State, the Government might have taken this exercise, obviously for different reasons, which cannot be explained in the present writ petition, in view of the limited scope. No doubt, if the petitioners were removed from service as on date by virtue of MSM,J WP_16472_2019 & batch 36 memo impugned in this writ petition issued by the second respondent, the principle laid down in Kumari Shrilekha Vidyarthi v. State of U.P (referred supra), can be applied to the present facts of the case. But, the petitioners were not removed by the memo impugned in this writ petition and it is only an interdepartmental correspondence. Even though the District Collector sent recommendations in consultation with the Principal District Judge of Prakasam and Krishna Districts, it is only a recommendation, but not an order. Therefore, the principle laid down in the above judgment cannot be applied to the present facts of the case.
Learned counsel for the petitioners also placed reliance on another judgment of Allahabad High Court in Vijay Shankar Mishra v. State of U.P14. The Allahabad High Court by relying upon the judgment of P.L. Dhingra v. Union of India15 wherein, it was observed that, normally the petitioner had a right to remain as an Additional Government Advocate for the period of full three years for which he had been appointed. As he was removed before the expiry of the period of three years, that would amount to punishment and removal within the meaning of Article 311(2) of the Constitution of India. In Suresh Prakash Agarwal, Advocate v. State of U.P16, the Allahabad High Court took a similar view and the Division Bench of the High Court of Allahabad also relied on the judgment of the Apex Court in Kumari Shrilekha Vidyarthi v. State of U.P (referred supra) and concluded that, such removal 14 1999 Cril.L.J. 521 15 AIR 1958 SC 36 16 1970 All.L.J 351 MSM,J WP_16472_2019 & batch 37 of government pleaders before completion of tenure is an arbitrary exercise of power.
In the same judgment, the Allahabad High Court also relied on the judgment of Mudrika Kumar Sinha v. State of Bihar17 wherein, it was held that, it is, therefore, futile to equate the office of the Public Prosecutor with a political office. The Public Prosecutor holds a public office and is charged with the duties of so acting as to best serve the interest of administration of justice. His appointment is not due to his political affiliation, but in recognition of his merit as a competent and honest lawyer. He is not to be directed by the Government, and in all cases must give his honest opinion. He is appointed by the Government, but is also an officer of the Court and, therefore, fairness, objectivity and impartiality are the hall marks of that office.
Taking advantage of the law laid down in Mudrika Kumar Sinha v. State of Bihar (referred supra) and Kumari Shrilekha Vidyarthi v. State of U.P (referred supra), the Allahabad High Court allowed the writ petition declaring the action of the third respondent therein as arbitrary and it is a product of spoil system.
The law declared by the Apex Court in the judgment with regard to appointment of State Government Counsels and Public Prosecutors is not in dispute, but later, there is a little change in the march of law.
In M.T. Khan and others v. Government of Andhra Pradesh18, the Apex Court had an occasion to deal with the appointment of Advocate General to the High Court and in paragraph 19 of the judgment, the Apex Court observed that, the 17 AIR 1979 SC 1871 18 (2004) 2 Supreme Court Cases267 MSM,J WP_16472_2019 & batch 38 matter relating to the appointment of a legal practitioner by a Government may be subject-matter of a legislation. The State by amending the provisions of Sections 24 and 25 of the Code of Criminal Procedure may make a law regulating the appointment of the Public Prosecutor or Additional Public Prosecutor. Such a law can also be made for regulating appointment of other State counsel. In absence of any legislation in this behalf, various States have laid down executive instructions. Thus, the State in exercise of its jurisdiction under Article 162 of the Constitution of India, is, in our considered view, competent to appoint a lawyer of its choice and designate him in such manner as it may deem fit and proper. Once it is held that such persons who are although designated as Additional Advocate Generals are not authorised to perform any constitutional or statutory functions, indisputably such an appointment must be held to have been made by the State in exercise of its executive power and not in exercise of its constitutional power. Consequently, Additional Advocate General so appointed is not in constitutional scheme and does not hold constitutional office.
In another judgment, the Apex Court in State of Uttar Pradesh v. Rakesh Kumar Keshari19, an identical question regarding appointment of Government Pleaders came up for consideration and the Apex Court decided the scope of service contract, appointment/renewal of service contract engaging the services of professional, more particularly, the District Counsel or the Public Prosecutor. The Court held that, the Office of the Public Prosecutor is not a civil post. In a post of District Counsel or the 19 (2011) 5 Supreme Court Cases 341 MSM,J WP_16472_2019 & batch 39 Public Prosecutor, no status is conferred on the incumbent. The nature of the office held by a lawyer vis-à-vis the State being in the nature of professional engagement, the Courts are normally chary to overturn any decision unless an exceptional case is made out. The question as to whether the State is satisfied with the performance of its counsel or not, is primarily a matter between it and the counsel and the extension of licence or permit granted under a statute. An incumbent has no legally enforceable right as such and the action of the State in not renewing the tenure can be subjected to judicial scrutiny inter alia only on the ground that the same was arbitrary. The court normally would not delve into the records with a view to ascertain as to what impelled the State not to renew the tenure of the Public Prosecutor or a District Counsel and the jurisdiction of the courts in a case of this nature would be to invoke the Doctrine of "Wednesbury unreasonableness".
The Apex Court also referred to the judgments in State of U.P. v. Johri Mal20 and Special Reference No.1 of 199821, wherein the Apex Court succinctly held that, it was not open to the respondents to file writ petition under Article 226 of the Constitution for compelling the appellants to utilise their services as advocates irrespective of choice of the State. It was for the State to select its own counsel. The High Court committed a grave error in setting aside the order of the State Government calling upon the District Magistrate to send another panel/list for appointment to the two posts of ADGC (Criminal) and also discussed about the executive instructions, but not the law.
20
(2004) 4 SCC 714 21 (1998) 7 SCC 739 MSM,J WP_16472_2019 & batch 40 If, the principles in State of U.P. v. Johri Mal (referred supra) and State of Uttar Pradesh v. Rakesh Kumar Keshari (referred supra) are applied to the present facts of the case, it is for the Government to appoint advocate of its own choice and the Court cannot insist the government to engage or disengage the services of any individual advocate to defend or support the government. In those circumstances, the Court cannot compel to engage the services of an advocate which can be issued as a professional engagement and it is left open to the State to choose an advocate of its choice, such power has to be exercised judiciously, but not arbitrarily.
In another judgment, in State of U.P. v. U.P. State Law Officers Association and others (referred supra), the Apex Court was of the view that appointment of any legal practitioner as a District Government Counsel is only professional engagement terminable at will on either side and is not appointment to a post under the Government. Accordingly the Government reserves the power to terminate the appointment of any District Government Counsel at any time without assigning any reason.
It would be evident from the executive instructions vide G.O.Ms.No.187 Law (L) dated 06.12.2000 known as Andhra Pradesh Law Officers (Appointment and Conditions of Service), Instructions, 2000. Instruction No.9 conferred absolute power on the State or the counsel to terminate the engagement with one month's notice or by paying one month's honorarium in lieu of one month's notice. These instructions are only executive instructions, since there is no legislation prescribing the procedure for appointment of Government Pleaders and Assistant Government MSM,J WP_16472_2019 & batch 41 Pleaders. Though, the term of Law Officer is three years vide Instruction No.8, but it is subject to Instruction No.9 only. Therefore, the State Government is under no obligation and it is unnecessary to consult anyone to exercise power under Clause No.9, since the appointments may, therefore, be made on considerations other than 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 backdoor 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. (vide State of U.P. v. U.P. State Law Officers Association and others (referred supra)). In the same judgment, the Apex Court did MSM,J WP_16472_2019 & batch 42 not agree with the principle laid down in Kumari Shrilekha Vidyarthi v. State of U.P (referred supra). Thus, it is clear from the laid down by the Apex Court that the engagement of services of an advocate by the State is only the choice of the Government and the advocate cannot compel the government to engage his services or continue to engage his services.
One of the contentions raised by the learned counsel for the petitioners is that, panel can be called for well in advance before expiry of the original term of office of the Government Pleader, in view of the executive instructions vide G.O.Ms.No.187 Law (L) dated 06.12.2000. Instruction No.5 (1) & (2) is relevant for the purpose of deciding this question, the same is extracted hereunder:
"Appointment of Law Officers in the District Courts and City Courts Subordinate to the High Court:-
(1) 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.
(2) The District Collector shall prepare a panel of Advocates well in advance before expiry of the term of incumbents and send the same to the Government for consideration."
No doubt, as seen from sub-clause (2) of Instruction No.5, the District Collector shall prepare a panel on behalf of the advocates well in advance before the expiry of the term of incumbents and send the same to the Government for consideration. But, in most of the cases of these petitioners, the term did not come to an end and their term and tenure will expire on the relevant years mentioned in Column No.IVof the table. The MSM,J WP_16472_2019 & batch 43 word "well in advance" does not mean that, within a short time after their appointment. Therefore, calling for fresh panels by the second respondent from the District Collectors appears to be for extraneous reasons. However, it is the duty of the District Collector to prepare a panel of advocates well in advance and forward the same to the Government for consideration. But, on the basis of interdepartmental communication i.e. memo, the act of the second respondent/Law Secretary herein cannot be said to be arbitrary.
In any view of the matter, as discussed above, the engagement of services of these petitioners is purely a professional engagement. The services of these petitioners were not yet terminated, thereby, the question of exercise of arbitrary power in calling for panels by the second respondent from the District Collectors of Krishna and Prakasam Districts does not arise. At the same time, the memo impugned in this writ petition is only an interdepartmental communication and it does not amount to automatic disengagement or termination of the services of the Government Pleaders or Assistant Government Pleaders in Krishna and Prakasam Districts, as such, the writ petition is premature and thereby, this Court cannot issue a Writ of mandamus, setting aside the impugned Memo No.1794/57/G/ 2019 dated 19.09.2019 issued by the second respondent, calling for panels from the District Collector-cum-District Magistrate, Krishna and Prakasam Districts, since it is not an order.
In the result, W.P.No.16472 of 2019 is dismissed. No costs.
MSM,J WP_16472_2019 & batch 44 W.P. NOs.19142, 19146, 17363, 17515, 17595 OF 2019 In view of the detailed order passed in W.P.No.16472 of 2019, all these writ petitions are also liable to be dismissed.
In the result, W.P. Nos.19142, 19146, 17363, 17515, 17595 of 2019 are also dismissed. No costs.
However, the petitioners in all the writ petitions are at liberty to redress their grievance before appropriate/competent authority, in case their services are terminated at appropriate stage.
Consequently, miscellaneous petitions pending, if any in all the writ petitions, shall also stand dismissed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:19.12.2019 sp