Bombay High Court
State Of Maharashtra vs Durga S/O Appa Pawar on 2 August, 1996
Equivalent citations: AIR1997BOM137, 1997(3)BOMCR138, 1997(2)MHLJ500
ORDER DESHMUKH, J.
1. This appeal was filed in the High Court by the Advocates, Shri M. S. Phatak, who is admittedly 'A' Panel Counsel appointed by the Government of Maharashtra. The memo of appeal is also signed by Shri Phatak as an Advocate for the appellant. The appellant is the State of Maharashtra, through the Executive Engineer, Irrigation Department, Division Sailu, in the District of Parbhani. This appeal is filed against the respondent, namely, Durga S/o. Appa Pawar.
2. The matter relates to the award of arbitration under Section 15 of the Arbitration Act.
3. Shri Phatak had produced before us, a letter addressed to him, signed by incharge Superintendent (Legal) to the Government of Maharashtra, Law and Judiciary Department, Aurangabad, dated 20th June, 1996, by which Shri Phatak was informed that the Government has decided to file an appeal in above referred Regular Civil Suit No. 223/1996 decided by the Civil Judge (S.D.), Parbhani, on 30th April, 1996. In the said letter, it is also mentioned that the Government has also decided to entrust the matter to him as 'A' Panel Counsel. He was, therefore, requested to file Civil Appeal in the High Court at Aurangabad.
4. When the matter had come up on board for admission, we find that the filing of the appeal by the Counsel appointed on 'A' Panel, by the Government of Maharashtra, is not in accordance with the provisions of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984, and the Rules for the Conduct of the Legal Affairs of Government, 1984.
5. Shri Phatak contended that he has acted pursuant to the letter dated 20th June, 1996 and filed the appeal. According to him, he has not transgressed the limits provided in the communication dated 20th June, 1996.
6. Our attention is invited to the various provisions in this connection. The matter is of great importance as it relates to the organisation of the Government Pleader's office and the overall control over the Government matters in the High Court.
7. It is worthwhile to refer to certain important provisions in this regard.
8. In sub-section (7) of Section 2 of the Code of Civil Procedure, 1908, the Government Pleader is defined as follows:
" "Government Pleader" includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader."
9. There is reference to the Government Pleader in Order XXVII, Rule 8-B of the Code of Civil Procedure, 1908, wherein the definitions of the Government and Government Pleader are reiterated. For the purposes of Order XXVIII, Rule 8-B, the Government Pleader means in relation to any suit by or against a State Government or against a public officer in the service of a State, the State Government and the Government Pleader as defined in clause (7) of Section 2, or such other pleader as the State Government may appoint, whether generally or specially, for the purposes of this Order.
10. There are rules framed for the appointment, conditions of service, remuneration, etc., for this purpose. The Maharashtra Law Officers Rules, 1984, and the Rules for the Conduct of the Legal Affairs of Government, 1984, are framed for this purpose, prescribing the manner, method and procedure of presenting and conducting the appeals in the High Court.
11. The Government Pleader is defined in Rule 2(j) of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984, as follows:
" "Government Pleader" means an advocate to that post under these rules by Government in the Law and Judiciary Department,--
(i) in relation to the High Court at Bombay.....
(ii) in relation to the High Court at Nagpur and Aurangabad, to conduct civil cases, appeals, applications, references and petitions including petitions for exercises of powers under Articles 226 and 227 of the Constitution for and on behalf of the State or its officers and includes an Additional Government Pleader and Assistant Government Pleader and Honorary Assistant to a Government Pleader."
12. Chapter II of the said Rules deals with the Advocate General. In sub-rule (3) of Rule 6, the statutory duties of the Advocate General are provided for. In sub-rule (5), duties as an Advocate are provided for. Sub-rule (6) deals with duties of other Governments. Sub-rule (7) deals with general duties.
Sub-rule (8) deals with charge and distribution of briefs and provides that the Advocate General shall exercise overall supervision over the offices of the Government Pleader, High Court (Original Side) and the Additional Government Pleader, High Court (Appellate Side) at Bombay only in so far as the distribution of briefs and conduct of litigation.
13. Chapter III of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984, deals with the qualifications and appointment of the Government Pleaders and Public Prosecutors.
14. Sub-rule (3) of Rule 14 in Chapter IV of the said Rules provides for the duties as Government Pleader and makes a provision as follows:--
"Unless otherwise provided in these rules the Government Pleader shall act for the State or its officers in respect of the judicial proceedings filed in the Court and shall be the recognised agent of the State or its officers within the meaning of Order XXVII, Rules 2, 4 and 8 read with Order III, Rule 1 of the Code of Civil Procedure; and it shall be the duty of the Government Pleader-
(a) to appear in the Court in any civil suit or appeal or application for review or revision or reference, petition of a civil nature, including petition for exercise of powers under Articles 226 and 227 of the Constitution or any other civil proceeding, as the case may be, to which the State or its officers are parties and the institution or defence of which is undertaken by Government in the Law and Judiciary Department and in all interlocutory or other proceedings arising therefrom and filed in the Court."
15. Similarly the duties as Public Prosecutor in the High Court are incorporated in sub-rule (4) of Rule 14 in Chapter IV of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984.
Sub-rule (9) of Rule 14 of the said Rules prescribes the duty of the Government Pleader or Public Prosecutor and makes a provision as follows:
"Unless otherwise provided in these rules, it shall be the duty of the Government Pleader or Public Prosecutor-
(a) to discharge all the duties of the Government Pleader towards the Government or its officer in regard to matters which are likely to lead to litigation in the Court;
(b) to prepare and settle pleadings or memoranda of appeals or replies or applications or affidavits or counter-affidavits or other documents in the proceedings filed in the Court or the proceedings filed in the Courts of other States or in the Supreme Court, as the case may be;
(c) to ensure that no case is heard by the Court without filing the necessary pleadings or submissions or replies or affidavits or counter-affidavits or other documents indicating clearly the contentions of the Government, both on question of law and facts;
(d) to see that no case is conceded before the Court, such as granting of bail to any accused or any question of fact not conceded in the affidavit or counter-affidavit or any claim against the State without obtaining previous permission, oral or written, of the competent officer of the department concerned or the Remembrancer of Legal Affairs or the Joint Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be:
Provided that, all oral permissions obtained shall be confirmed in writing within seven days from the date of obtaining such permission."
16. Rule 15 of Chapter IV of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984, prescribes the charge and distribution of briefs, and makes a provision as follows:
"(1)(a) The Government Pleader or Public Prosecutor except in the case of the Government Pleader, High Court (Original Side) and the Additional Government Pleader, High Court (Appellate Side) at Bombay or except where there is only one Law Officer) shall be in overall charge of the distribution of briefs amongst this subordinates and Panel Counsel, if any:
Provided that, the distribution shall be subject to any instructions from the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be.
(b) Subject to clause (a), the Government Pleader or Public Prosecutor shall, as a general rule and as far as possible, himself conduct all important civil or criminal cases which involve important law points or involve important policies of the Government or high stakes. While appearing in such matters, he may take the assistance of his subordinate after seeking the sanction of the Remembrancer of Legal Affairs.
(c) Subject to proviso to clause (a) and clause (b), he shall distribute the work equally amongst his subordinates and Panel Counsel. While assigning work he shall see that only one Court is allotted to himself and each of his subordinates or Panel Counsel, as the case may be, during a day. However, under special circumstances or reasons to be recorded in writing, he may allot more than one Court to himself or any of his subordinate or Panel Counsel."
17. The Government has framed separate rules, namely, the Rules for the Conduct of the Legal Affairs of Government, 1984. In Part B of the said Rules, there is a provision for Panel Counsel.
Rule 27 provides that there shall be two Panels of Counsel, namely, 'A' and 'B' Panel Counsel on the Original Side and Appellate Side of the High Court at Bombay. The appointments of the advocates on these Panels shall be made by Government in the Law and Judiciary Department.
Sub-rule (3) of Rule 27 provides for the allotment of work to the Panel Counsel. It is clearly mentioned therein, that the Panel Counsel shall conduct such cases on behalf of the State or its officers which are entrusted to them by the Advocate General. In this context, it is worthwhile to mention other provisions contained, in this regard, with regard to the duties of the Advocate General.
18. In sub-rule (9) of Rule 6 of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984, a provision is made for obtaining assistance for conducting cases, in the following terms:--
"Assistance for conducting cases:
(a) The Advocate General shall be entitled to have the Assistance of any one Junior Counsel from A or B Panel Counsel or the Assistant Government Pleaders of his choice for conducting the cases filed in the High Court (Original or Appellate Side) at Bombay.
(b) Whenever engagement of A Panel Counsel is necessary, he shall in the first reporting letter to Government in the Law and Judiciary Department, communicate about engagement of such counsel, setting out in brief important points involved in the matter to enable Government in the Law and Judiciary Department to accord necessary sanction.
(c) He shall not, except in special circumstances and except with the prior approval in writing of Government in the Law and Judiciary Department, engage more than one A or B Panel Counsel or engage any of the Government Pleaders or the Additional or the Assistant Government Pleaders in any matter."
19. In sub-rule 6(a) of Rule 27 of the Rules for the Conduct of the Legal Affairs of the Government, 1984, it is provided that there shall be a Panel of Counsel, one each, for the High Court at Nagpur and Aurangabad. The appointments of the advocates on these Panels shall be made by Government in the Law and Judiciary Department. While sub-rule 6(c) provides that the Panel Counsel shall conduct such cases on behalf of the State or its officers which are entrusted to them by the Government Pleader concerned in the High Court at Nagpur or Aurangabad, as the case may be.
20. There is a provision made in the rules for the Panel of Special Counsel for the High Court with which we are not presently concerned.
21. The mode, methods and procedure in respect of the working of the Government Pleader's office is elaborately provided for under these rules. The whole purpose seems to be to create uniform pattern in the Government Pleader's office in the High Court of Bombay and its Benches at Nagpur and Aurangabad. The main responsibility is General, followed by the responsibility is entrusted on the shoulders of the Government Pleaders and Additional Government Pleaders at Bombay, Nagpur and Aurangabad. The abovementioned provisions indicate that any proceeding to be initiated in the High Court is to be initiated from the office of the Government Pleader and it is for the Advocate General and/or for the Government Pleaders at Nagpur or Aurangabad, as the case may be, to allot work to 'A' Panel Counsel. But the initial filing of the memos, appeals, applications or petitions under Articles 226 and 227 of the Constitution, for and on behalf of the Government, has to be done by the Government Pleader and other officers included in the definition of the Government Pleader.
22. The power is vested with the Advocate General and/or with the respective Government Pleaders to engage 'A' Panel Counsel whenever they found it necessary having regard to the importance of the matter. The selection of the 'A' Panel Counsel is, therefore, left with the discretion of the Advocate General and/or with the respective Government Pleaders. But having regard to the duties, it is apparent that the question of appearance of 'A' Panel Counsel or 'B' Panel Counsel comes in after the proceedings are initiated or filed in the Court. Thereafter only, it is for the Advocate General or the respective Government Pleaders to consider on the basis of merits of the matter, whether they would require assistance of the 'A' Panel or 'B' Panel Counsel.
23. Our attention was invited by Shri Phatak to sub-rule 1(a) of Rule 15 of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984, wherein a provision is made in respect of distribution of briefs, and the proviso to the said sub-rule provides that the distribution shall be subject to any instructions from the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be. In a given case, it is open for the other authorities of the State Government to consider the entrustment of a brief or matter to 'A' Panel or 'B' Panel Counsel. But that has also to be done through the Advocate General or the concerned Government Pleader. The distribution of allotment of a brief or matter may be instructed by the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government in Law and Judiciary Department. But such instructions are to be forwarded to the Government Pleader and the Government Pleader may act, in a given case, as per the instructions communicated to him under the proviso to sub-rule 1(a) of Rule 15.
In our opinion, these provisions cannot be read in isolation but have to be read with all other provisions. If it is held under the provisions of this proviso, that irrespective of the Advocate General or the Government Pleader concerned, a power is vested in favour of the Counsel appointed as 'A' Panel or 'B' Panel, the filing of the matter may not be known even to the Government Pleader. Thus, the whole scheme as enumerated above, militates against such an interpretation. The entire responsibility of the Government matters is placed on the shoulders of the Advocate General and the respective Government Pleaders and, in a given case, they may seek assistance of 'A' Panel Counsel or 'B' Panel Counsel and, in a particular case, it may be open for the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, to ask or instruct the Government Pleader and/or Additional Government Pleader in the High Court, to have 'A' Panel Counsel looking to the importance of the matter and may further instruct the Government Pleader or the Additional Government Pleader, as the case may be, to appoint a particular person from 'A' Panel. But this has to be routed through the Government Pleader and cannot be independently done. A care is taken to see that the matter emanates from the office of the Government Pleader. The entire control and supervision of the matters filed by the Government, in the High Court, are with the Government Pleader's office. The creation of an independent authority in respect of filing the matters, controlling the matters and supervising the matters may result in chaotic conditions except in cases of matters entrusted to Special Counsel.
24. 'A' Panel Counsel or 'B' Panel Counsel are appointed qua the matters. But the concerned Government Pleader is answerable to all the matters of the Government filed at the High Court level.
25. There are specific provisions made in respect of filing of the memos, petitions, appeals, etc., both, Civil as well as Criminal Sides, including petitions under Articles 226 and 227 of the Constitution of India. Conferring such a right on the 'A' Panel Counsel or 'B' Panel Counsel, in respect of initiating the proceedings or filing the appeals or applications independent of the Government Pleader's office may result in chaotic condition and, in given circumstances, may result in obtaining different and conflicting orders also.
26. In view of this, we are of the opinion that the appeal filed by Shri Phatak, Counsel appointed on 'A' Panel, is not proper and cannot be accepted as the appeals filed by the State of Maharashtra or any authority of the State Government. We make it clear, that we do not find personal fault with filing of appeal by Shri Phatak, in this matter, as he was said to have been instructed by the Government to file the appeal. What we find is that the filing of the appeal by Shri Phatak was not in conformity with the rules in this regard. The procedure is totally flouted in directing Shri Phatak to file the appeal. The instructions or directions contained in the communication dated 20th June, 1996 are quite contrary to the provisions of the Code of Civil Procedure, 1908, as well the provisions of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984, and the Rules for the Conduct of the Legal Affairs of Government, 1984.
27. At this stage, Shri Phatak requested to allow him to withdraw the appeal along with the civil application. Appeal, along with the civil application, allowed to be withdrawn with liberty to file appeal as per the procedure prescribed under the Code of Civil Procedure, 1908, and in the light of the provisions made, in this regard, in the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984, and the Rules for Conduct of the Legal Affairs of Government, 1984.
28. Court-fee be refunded. If any documents are filed along with the appeal or the civil application, they may also be returned to Shri Phatak.
29. Order accordingly.