Punjab-Haryana High Court
Keshav Kaushik vs State Of Haryana & Others --Respondents on 23 September, 2011
Author: Permod Kohli
Bench: Permod Kohli
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
R.A. No.119 of 2010 in
CWP No. 9157 of 2008
Date of Decision: 23.9.2011.
Keshav Kaushik --Applicant/Petitioner.
Versus
State of Haryana & others --Respondents
CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI.
HON'BLE MR. JUSTICE K.KANNAN.
Present:- Mr. Ashok Aggarwal, Sr. Advocate with
Mr. Alok Jain, Advocate for applicant-review petitioner.
Mr. Anupam Gupta, Advocate.
Mr. Sumeet Goel, Advocate for respondents no.3, 7, 8, 10, 11,
14 & 16.
Mr. Sanjiv Pandit, Advocate.
Mr. V.K. Jindal, Addl. A.G., Haryana.
***
PERMOD KOHLI.J This review application has been filed invoking review jurisdiction of this Court for modification/clarification of the judgement dated 18.5.2010 passed by this Court in a bunch of writ petitions being C.W.P No.9157 of 2008 titled as Keshav Kaushik Vs. State of Haryana and others and connected petitions.
Respondent-writ petitioner has resisted the review application. Precise facts and circumstances leading to the filing of this review application are that the applicant, who was arrayed as respondent no.9 in almost every petition was declared ineligible amongst four others for the post of Additional District & Sessions Judge in the State of Haryana for R.A. No.119 of 2010 in CWP No. 9157 of 2008 -2- which selection/appointment was made and set aside vide the impugned judgement.
In one of the writ petition CWP No.17137 of 2008 titled as Baldev Singh Vs. State of Haryana & others specific allegations were made against him that he was working as Assistant Advocate General in the office of Advocate General, Punjab and being a whole time employee and in Govt. service was ineligible for appointment as Additional District & Sessions Judge. Despite being a party-respondent and duly served in all the petitions the applicant chose not to file any reply. To the contrary a specific statement was made on 24.9.2008 adopting the reply filed by the High Court.
The High Court as respondent no.2 in the writ petition, though, filed a detailed reply, did neither defend this respondent by any specific averment about the nature of his employment in the office of Advocate General nor even pleaded anything about his eligibility, except that it was contended that a Committee of Judges found selectees eligible for the post. No record in respect to the applicant showing his eligibility was placed as there was none with the High Court which is evident from the written reply filed by the High Court in the present review application. In the review application, it has been disclosed that the applicant had not attached the appointment letter dated 30.3.2007 with his application form at the time of applying for the post of Additional District & Sessions Judge, although, in the meeting of the Judges held on 25.4.2008, he was considered as eligible.
In the absence of any reply or record before the Court, this Court had no option but to consider the applicant ineligible in the light of the allegations contained in the Baldev Singh's case. R.A. No.119 of 2010 in CWP No. 9157 of 2008 -3- The applicant has not taken a different stand in the review application. In para 4, it has been pleaded that the applicant had reasonable belief that nothing has been pleaded against him and therefore no necessity to file any written statement or any document pertaining to his eligibility. At the same time in last part of paras 4 and 5, it has been pleaded that the lapse was unintentional and bonafide and in absence of serious contest by the applicant, the facts could not be brought to the notice of the Court which in the perception of the applicant were very material and have important bearing on the matter in controversy and goes to the root of the case. It is further pleaded that, if, such facts would have been brought to the notice of the Court, it would have enabled this Court to arrive at a conclusion different than the one taken regarding the applicant. It is also stated that the High Court also did not produce any record pertaining to the nature and status of his appointment in Advocate General's office under the same impression.
The applicant has now placed on record his appointment letter dated 30.3.2007 (Annexure RA9/1) as Deputy Advocate General with the review application. On the basis of the aforementioned appointment letter, it is contended that the nature of appointment of the applicant was purely contractual in nature and did not attract the rigor of Govt. service and thus falls within the exception carved out by the Court in the judgement under review. Mr. Ashok Aggarwal, learned Senior Advocate appearing for the applicant has referred to paras 71 and 75 of the judgement under review, wherein specific findings have been returned in respect to the ineligibility of the applicant. In para 75 of the judgement, the applicant is held to be possessing less than 7 years practice at the Bar before his engagement as R.A. No.119 of 2010 in CWP No. 9157 of 2008 -4- Law Officer, whereas in para 71, it has been held that ineligibility is not attached to other category of Law Officers, who are practicing lawyers and are engaged on behalf of the Govt. or any other organization/authority even on salary to appear on their behalf either under any contractual arrangement or on case to case basis, without subjecting themselves to the conditions of the regular Govt. employment such as the Advocate General, Additional Advocate General etc. In order to controvert the first finding regarding the ineligibility for having less than 7 years of practice, it has been pointed out that the applicant was granted license as an Advocate in the year 1994 and he continued to practice up to December, 1999 and again from January, 2003 to 1.4.2007. To substantiate this fact, reliance is placed upon the certificate dated 9.5.2007 (Annexure RA9/2), issued by the Punjab & Haryana High Court Bar Association, Chandigarh. This document is also for the first time produced in the present review application. From the perusal of the aforesaid certificate, it is seen that the applicant had about 5 years of spell as a practicing Advocate from 1994 to December, 1999 and again for about 4 years from January, 2003 to 1.4.2007. Nothing is indicated about the period from December, 1999 to December, 2002. Whether during this period the applicant had suspended his license or otherwise is not revealed at all. However, keeping in view the two spells, he is definitely having more than 7 years of practice at the Bar prior to his engagement as Deputy Advocate General. On this count, it is sought to be argued that the findings recorded by the Court are contrary to the actual fact which constitutes an error apparent on the face of the record. We do not subscribe to this contention for the simple reason that no material whatsoever was placed on R.A. No.119 of 2010 in CWP No. 9157 of 2008 -5- record in the reply of the High Court even to establish that he was having more than 7 years of practice at the time of his selection. To the contrary it is stated that since there was no specific allegation, it was not necessary for the applicant to have even established this fact. Once the eligibility of the person is challenged and the person is a party then it becomes necessary for him to come forward and at least file a reply in support of his eligibility or place on record relevant material.
We are prepared to assume, on the basis of the assertion made with reference to the documentary evidence now placed that the applicant was having 7 years practice at the Bar and was eligible on this count. The petitioner will have to rule out his ineligibility on other count.
In support of the plea of eligibility, the applicant has heavily relied upon the appointment letter, referred to above, which has now been produced for the first time in the review application. Admittedly, this document was not placed before us at the hearing of the writ petitions. The document was admittedly in possession and control of the applicant. No valid reason has been shown for non-production of the document in the writ petition or exercise of due diligence or any other circumstance which might have prevented the applicant from placing this document on record. The other side has raised an objection regarding the maintainability of the review application on the ground that the applicant has failed to show due diligence for non-production of document before the Writ Court. It has been contended that the applicant was negligent in not filing the written statement and placing the material on record. It is further sought to be impressed upon that there is no error apparent on the face of the record warranting exercise of review jurisdiction.
R.A. No.119 of 2010 in CWP No. 9157 of 2008 -6- The High Court while exercising jurisdiction under Article 226 of the Constitution of India is a Court of Plenary Jurisdiction as also a Court of Record as provided under Article 215 of the Constitution and thus possesses inherent power to correct its own record and also to exercise the review jurisdiction in appropriate cases apart from the provisions of Order 47 Rule I of the C.P.C. Thus, the maintainability of the review application should not retain us further taking a liberal and realistic approach. To do justice, we do not want to dwell upon the question of maintainability and exercise of review jurisdiction in the matter.
This leaves us to the only question relating to the status and nature of the applicant's appointment as a Deputy Advocate General in the office of Advocate General, Punjab. On such examination, if, the answer to the question raised by the applicant is in affirmative, the review application has to be allowed otherwise it deserves dismissal.
To understand the nature of the applicant's appointment as Deputy Advocate General, terms and conditions of his employment/appointment are necessarily to be examined. Terms and conditions of the applicant's appointment as Deputy Advocate General are being reproduced hereunder:-
"GOVERNMENT OF PUNJAB DEPARTMENT OF HOME AFFAIRS AND JUSTICE (Judicial-1 Branch) Sr. No. Name Address
7. Dinesh Kumar Mittal #222, Advocate Society, Sector 49-A, Chandigarh, 98889-20001 Memo No.8/2/07-4Judl. (1)/970.
Dated, Chandigarh the 30.3.2007.
Subject: Appointment as Law Officers in the office of R.A. No.119 of 2010 in CWP No. 9157 of 2008 -7- Advocate General, Punjab.
Reference subject noted above.
2. You are hereby appointed as Deputy Advocate General, Punjab in the office of Advocate General, Punjab at Chandigarh on contract basis with immediate effect up to 31.3.2008 on the following terms and conditions:-
1. That your appointment will be contractual in nature and you will be paid pay scale of Rs.18400-22400+600 NPA and usual allowances.
2. That the period of contract stated above will be terminated at any time by giving one month's notice on either side or contract fee for that period in lieu thereof.
3. You will have to do all criminal, civil and misc. works assigned to you by the Advocate General, Punjab or by the govt. and you will not be allowed to do private practice whatsoever.
4. Your appointment would be against a non-pensionable post on contractual basis and you will not be entitled to any benefits, viz. Pension, gratuity, encashment of leave etc.
5. In the matter of leave and travelling allowances, you will be governed by the Rules and instructions issued there under by the Govt. of Punjab from time to time for contractual appointments.
6. You will work in any Court/Tribunal etc. under the overall supervision and control of the Advocate General, Punjab.
You are requested to take over the charge with effect from 04.04.2007 (forenoon).
Sd/-
Under Secretary Home (s)."
Subject of the aforesaid letter relates to "appointment of Law Officers in the office of Advocate General, Punjab". In para 2 this appointment is as Deputy Advocate General up to 31.3.2008. On inquiry, it is revealed by Mr. Aggarwal on instructions that this appointment was renewed further. The applicant applied for the post of Additional R.A. No.119 of 2010 in CWP No. 9157 of 2008 -8- District & Sessions Judge while serving as Deputy Advocate General and was also selected and appointed during his continuance on the said post. Under condition no.1 of the appointment letter, the appointment is shown to be contractual in nature but in a regular pay scale of Rs.18,400-22,400/-. In addition to placing the applicant in a regular pay scale, he was also granted Rs.600/- as non-practicing allowance and usual allowances. Condition no.2 deals with the termination of the contractual appointment by one month's notice from either side or even contract fee for the period of notice. Condition no.3 is significant. The applicant was required to do all criminal, civil and miscellaneous works assigned to him by the Advocate General, Punjab or by the Govt. and there is a complete embargo upon his right to do private practice whatsoever. Condition no.4 lays down that his appointment is against the non-pensionable post on contractual basis without any benefit of pension, gratuity or leave encashment etc. However, as per condition no.5 leave and travelling allowances are admissible as per the Govt. instructions for contractual appointments in the Govt. of Punjab. Condition no.6 further provides that working of the applicant is under the overall supervision and control of the Advocate General, Punjab. He was finally asked to take over the charge w.e.f. 4.4.2007.
This document is the sheet anchor of the applicant's case. Referring to the above conditions, it is vehemently argued by Mr. Aggarwal that the nature of the appointment of the petitioner is purely contractual without any right to pension, gratuity or leave encashment and was for a period of one year which was renewed by a separate appointment letter after the expiry of the initial one year and the appointment terminable by one month's notice, cannot be construed to be a regular permanent employment R.A. No.119 of 2010 in CWP No. 9157 of 2008 -9- of the Govt. attracting the rigor of Article 233 of the Constitution of India. It is stated that the applicant was not a regular Govt. employee as the conditions of appointment do not contain the essential trappings of Govt. service, that too, regular Govt. service so as to incur disqualification under law. According to Mr. Aggarwal the applicant is entitled to the benefit of the judgement itself without venturing to other areas and issues. Referring to the observations made in para 71 of the judgement under review, wherein the Law Officers engaged on contractual basis even on salary by the Govt., Corporations or otherwise are said to be eligible and do not attract the ineligibility, it is argued that the conditions of service which are usually attached to the Govt. service like mode and method of selection by advertisement, promotion, pension, gratuity, leave encashment etc. are absent from the terms of engagement of the applicant with the Govt. It is further submitted that since the applicant continues to hold the Advocate's license, he is not deemed to be in Govt. service so as to earn disqualification or ineligibility under Article 233 of the Constitution of India.
To the contrary Mr. Anupam Gupta, learned counsel appearing for the respondents has referred to paras 30 and 31 of the judgement under review to rebut the contentions raised by Mr. Aggarwal. It is sought to be contended that the service of the applicant was regular full time Govt. service, notwithstanding its tenure or use of the expression "contractual" in the appointment letter. The applicant was not a free lancer Advocate to appear on behalf of any other litigant and the letter (Annexure RA9/2) clearly describes that it is an appointment against an available post borne on the cadre of service in the office of Advocate General and is not a mere R.A. No.119 of 2010 in CWP No. 9157 of 2008 -10- engagement for a case or cases on behalf of the State.
We have heard learned counsel appearing for the parties at length.
The conditions incorporated in the appointment letter dated 30.3.2007 are peculiar in nature. By virtue of condition no.1, though, the applicant's appointment is shown to be contractual in nature but it is in a regular pay scale prescribed for the post. A pay scale inter alia includes annual increments. Rather, the applicant was being paid non-practicing allowance which means that notwithstanding possession of a valid license of Advocate, he is not entitled to practice. A conjoint reading of conditions no.1 and 3 do indicate that the appointment of the applicant as Deputy Advocate General is a "Captive" appointment and the applicant had no freedom of practice as an Advocate during the period of contractual appointment, though, he is not entitled to pension, gratuity and leave encahsment but all other allowances which inter alia include even the Dearness Allowance on the salary are not excluded. Placement of the applicant in a graded pay scale, non-practicing allowance, other allowances and total restriction on his right to practice as an Advocate are all indicators of a Govt. service. The appointment in the Govt. service may be of different kinds. There can be a regular permanent appointment, a temporary appointment or a contractual appointment. It all depends upon the tenure of the appointment. A temporary or a contractual employee may not be entitled to all the benefits available to a regular permanent Govt. employee but he does not cease to be a govt. employee, if, other conditions known to service jurisprudence are satisfied. A contractual appointment is not unknown to the service jurisprudence.
R.A. No.119 of 2010 in CWP No. 9157 of 2008 -11- Now a days the Govt. is resorting to contractual appointments in various fields and under the new scheme effective from 2004 in most of the services the job is not pensionable. That does not change the nature of the appointment and even a contractual appointment or a temporary employee becomes member of a service of the Govt. The conditions incorporated in appointment letter further indicate that applicant has to do only such cases as may be assigned to him by the Advocate General or the Govt. He has no discretion or choice of briefs. He cannot practice as an Advocate for which he was paid non-practicing allowance. His appointment is against a post. All these conditions carry the trappings of Govt. service, may be for a limited tenure.
The entire issue considered in the judgement under review was the ineligibility in the teeth of Article 233 of the Constitution of India which envisages two important ingredients:
(1) Not a member of any service under the Central or the State Govt.
(2) A practicing Advocate/Pleader.
Notwithstanding the fact that the appointment of the applicant was contractual in nature, it does not cease to be an appointment in a service and on account of various conditions imposing complete restriction on the practice, he ceases to be a practicing Advocate or a Pleader. In the judgement under review, this Court also relied upon Division Bench judgements of this Court rendered in cases of Mrs. Nirmal Yadav Vs. The State of Haryana reported as 1992 RSJ, 314, Dr. Ms. S.K. Bhatia Vs. State of Punjab reported as 1998 (1) SCT 514. In S.K. Bhatia's case (supra) the Hon'ble Division Bench of this Court considered the status of an R.A. No.119 of 2010 in CWP No. 9157 of 2008 -12- Assistant Advocate General and a Deputy Advocate General in the State of Punjab. A similar plea was raised that the appointment is contractual one which was negated by the Hon'ble Division Bench. Hon'ble Justice G.S. Singhvi (as his lordship then was) speaking for the Bench observed as under:-
"In fact, the very first condition of the orders of appointment issued in favour of the petitioner declares that she will be whole time Govt. employee. I am not suggesting that the Govt. is not empowered to engage counsel on contract basis to contest cases on its behalf in different courts. In fact, the notification dated 3.3.1980 shows that the posts of Advocate General and Additional Advocate General were contractual in nature but having decided to employee the Assistant Advocate General and Deputy Advocate General as regular employees of the Govt., the non-official respondents are not entitled to plead that their engagement is contractual in nature. The purpose of incorporating Clause (vii) of the order dated 28.4.1986 and Clauses 5(a) and (b) in the order dated 11.4.1991 appears to be to deny the benefits, which are otherwise admissible to Govt. employees on retirement, but incorporation of these clauses is not sufficient to hold that the petitioner had been engaged on contract of personal service. The fact that the petitioner was appointed in regular time scale, benefit or annual grade increments was given to her, she was called upon to exercise option under the revised pay rules and the fact that the Annual Confidential Report were recorded from time to time go a long way to negate the case set up by the respondents that the petitioner's appointment was in the nature of a contract of personal service and as such the Writ Petition is not maintainable."
We are not convinced with the contentions of Mr. Aggarwal that the appointment of the applicant was purely contractual in nature and did not attract the rigor of Article 223 of the Constitution of India. We are of the considered view that this review application deserves to be rejected.
We order accordingly.
R.A. No.119 of 2010 in CWP No. 9157 of 2008 -13- All those respondents, whose selection/appointment was set aside by this Court have already approached the Hon'ble Supreme Court in S.L.Ps No.17793-17797 of 2010 and the Hon'ble Supreme Court passed the following interim order:-
"Till further orders, services of the petitioner as Additional District & Sessions Judge shall not be terminated. However, till further orders, he will not sit in Court and decide matters.
Place the petition on 2nd August, 2010."
The applicant being similarly situated, we allow the applicant benefit of above order for a period of two months.
(PERMOD KOHLI) JUDGE (K.KANNAN) JUDGE 23.9.2011.
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