Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11
PETITIONER:
STATE OF U.P.
Vs.
RESPONDENT:
U.P. STATE LAW OFFICERS ASSN.
DATE OF JUDGMENT25/01/1993
BENCH:
SAWANT, P.B.
BENCH:
SAWANT, P.B.
VENKATACHALA N. (J)
CITATION:
1994 AIR 1654 1994 SCR (1) 348
1994 SCC (2) 204 JT 1994 (1) 225
1994 SCALE (1)254
ACT:
HEADNOTE:
JUDGMENT:
The Judgment of the Court was delivered by
SAWANT,J.-Leave granted in SLP Nos. 14525 and 4912 of 199 1.
2. This group of appeals raises an important question with
regard to the status of the law officers engaged by the
State Government to conduct the cases on its behalf in the
High Court. Incidentally, questions bearing on the
profession of the lawyer, his relationship with his client,
and the relationship of the Government and for that matter
of all the public bodies with the lawyers they engage for
conducting their matters, also fall for consideration.
3. At the relevant time, there were 64 law officers
working for the U.P. State Government in the High Court of
Allahabad including its Lucknow Bench. By an order dated
July 23, 1990, the State Government removed 26 of the said
law officers. Out of these, 9 law officers had been working
for a long time, some of them for more than 15 years. Their
continuation as law officers was till further orders.
Another 11 officers out of the removed officers had been
appointed in 1982-83 and they continued to work till the
date of their removal without renewal of their term. The
remaining six law officers were appointed variously in March
and May 1989 for a period of one year only with a
stipulation that they could be removed any time without
giving any reason whatsoever. Their term had also not been
renewed after the expiry of the initial period of their
appointment. There is no dispute that in cases of all these
26 officers and indeed in cases of all the law officers
appointed in the High Court, the terms of appointment
contained a condition that notwithstanding the period for
which they were appointed, they could be removed at any time
without giving any reason whatsoever.
4. It appears that before issuance of the aforesaid order
of removal dated July 23, 1990, the State Government had
issued another order on May 26, 1990 by which the system of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11
engaging Brief Holders in the High Court was abolished with
immediate effect. By yet another order of June 28, 1990,
the Government had authorised the Legal Remembrancer to
appoint special counsel for any special matter before the
High Court. The order also gave him financial and
administrative powers which were earlier exercised by the
Chief Standing Counsel and the Public Prosecutor. He was
further given power to distribute the work to the various
Standing Counsel and the Additional Public Prosecutors.
5. Aggrieved by the order dated July 23, 1990, the law
officers who were removed from their posts, and aggrieved by
the order of May 26, 1990, the then Brief Holders approached
the High Court by a writ petition contending, among other
things, that their removal was against the principles of
natural justice and that they could be removed from their
offices only for valid reasons. The High Court accepted the
contention of the law officers and by its impugned judgment,
quashed the orders removing them from their
210
offices. The High Court also quashed the order dated May
26, 1990 passed by the State Government by which the
Government had abolished the system of the engagement of
Brief Holders and directed the respondents to continue the
said system. The High Court further quashed all the fresh
appointments made by the State Government and directed the
payment of remuneration to the officers who were removed,
from the date of their removal. In the course of the
judgment, the High Court has also made observations against
the Legal Remembrancer. These appeals are, therefore,
preferred by the State as well as those who were newly
appointed by the State Government as its law officers.
6. Before we refer to the contentions advanced on both
sides, it would be worthwhile to explain the system which
was prevalent in the State for engaging lawyers to attend to
the government work in the High Court and also the role
assigned to the Legal Remembrancer vis-a-vis the government
lawyers. Chapter V of the Legal Remembrancer’s Manual
(hereinafter referred to as the ’Manual’) deals with the
Chief Standing Counsel and the Standing Counsel in the High
Court and Chapter VI of the said Manual deals with Brief
Holders in the High Court. Chapter VII deals with District
Government Counsel with whom we are not concerned in the
present appeals. However, that chapter has a bearing on the
contentions advanced before us and we will deal with the
same while discussing the contentions. Suffice it for the
present to bear in mind that the appointment and conditions
of engagement of District Government Counsel have been dealt
with in the said Manual separately from the appointment of
the Chief Standing Counsel, Standing Counsel and Brief
Holders in the High Court.
7. Paragraph 5.01 of Chapter V states that there shall be
one Chief Standing Counsel for the High Court at Allahabad
and another for its Lucknow Bench and such number of
Standing Counsel at both the said benches as the State
Government may from time to time appoint. Paragraph 5.02
states that in making the appointments of the Chief Standing
Counsel as well as the Standing Counsel, the State
Government "may, if considered necessary" take into
consideration the views of the Advocate-General or the Chief
Justice or any Judges of the High Court or of any committee
that "may be" constituted for the purpose. Paragraph 5.03
then refers to the responsibility of the Chief Standing
Counsel for conducting the cases. It states that he shall
be responsible for the conduct of all civil cases in the
High Court to which the State Government is a party except
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11
such cases or class of cases as are excluded by the State
Government by general or special order. It further states
that the Chief Standing Counsel shall work subject to such
general or special directions as may be issued by the
Advocate-General or the Legal Remembrancer from time to
time. Sub-paragraph (2) of the said paragraph states that
the Government may entrust any case of special importance to
the Advocate-General or to a special counsel. Paragraph
5.04 refers to the duties of the Chief Standing Counsel.
These duties include (i) representation of the State or of
any authority within the State in such other civil cases in
which he might be directed or required to appear by the
211
Government, the Legal Remembrancer or the High Court; (ii)
to present to the High Court under instructions from the
Legal Remembrancer, appeals, or applications or petitions on
behalf of the State; (iii) to advise the Government or the
Legal Remembrancer when so required in any matter of a civil
nature; (iv) to make suitable arrangements for the conduct
of civil cases in the High Court in accordance with any
general or special order of the Government or the Legal
Remembrancer; (v) to assign cases to the Standing Counsel
and then to the Brief Holders appointed by the Government;
(vi) to report to the Legal Remembrancer the cases in which
the State Counsel had been adversely commented upon by the
High Court; (vii) to procure and submit to the Legal
Remembrancer copies of any judgment or order of the High
Court that the Government may require or where immediate
steps by the State Government are necessary; (viii) to ask
for instructions from the Legal Remembrancer in regard to
the contest of the matters on behalf of the State
Government; (ix) to report to the Legal Remembrancer the
receipt of any process on behalf of the Government and to
furnish him with a copy of the memo of appeal, revision or
application as the case may be; (x) to send his opinion to
the Legal Remembrancer as to whether any case is fit for
further appeal to the Supreme Court and to submit to the
Legal Remembrancer such returns as the latter may from time
to time prescribe or require.
8. Paragraph 5.05 refers to the duties of Standing Counsel
and states that the Standing Counsel shall generally assist
the Chief Standing Counsel in performing his duties and
functions and shall perform such functions and conduct such
cases as may be allotted to them by the Chief Standing
Counsel or by any general or special order of the
Government. Paragraph 5.07 places restriction on private
practice of both the Chief Standing Counsel and Standing
Counsel. It states that they shall not, save with the
special permission, appear against the State in any civil
case or proceeding nor shall they advise any private party
regarding any civil case which might be pending or is likely
to be instituted against the State or any State authority.
It also states that they shall not, without the permission
of the Legal Remembrancer communicate directly or indirectly
to any person or authority the contents of any documents or
convey any information which has come to their possession or
knowledge in the course of their duties in any case in which
they appear on behalf of the State Government. They shall
also not accept any appointment as Director of any company
without the previous sanction of the Government. Paragraph
5.08.requires the Chief Standing Counsel to arrange and
regulate work in such a manner that an adequate number of
Standing Counsel and/or Brief Holders are present in the
High Court on every day on which cases under his charge are
fixed for hearing. Paragraph 5.10 gives power to the State
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11
Government to transfer the Chief Standing Counsel or any
Standing Counsel from Allahabad to Lucknow and vice versa in
consultation with the Advocate-General for such period and
on such terms as may be determined by the Government. They
may also be asked by the Legal Remembrancer to appear on
behalf of the State
212
Government in any civil case in any Court in the State in or
outside Allahabad or Lucknow. Paragraph 5.16 requires that
except when otherwise expressly provided, all communications
between the Government and the Chief Standing Counsel and
the Standing Counsel shall be made through the Legal
Remembrancer except in cases of urgency. But even in such
cases, the copy of the communications shall invariably be
sent to the Legal Remembrancer. It is not necessary to
refer to the other provisions of this chapter.
9. Paragraph 6.02 of Chapter VI which deals with the Brief
Holders in the High Court refers to the appointment of a
panel of Brief Holders in the High Court. It states that
the State Government may in consultation with the Advocate-
General appoint such number of Brief Holders from amongst
the practising advocates in the High Court as it may deem
necessary from time to time to conduct such civil and
criminal cases in the High Court as may be entrusted to
them. The paragraph makes it clear that such appointments "
shall not be deemed to be appointment to any office or post
but only professional engagement which shall be terminable
on either side at will". It requires a minimum of 5 years’
practice at the bar for appointment as a Brief Holder.
Paragraph 6.03 states that a Brief Holder shall ordinarily
be appointed in the first instance for a period not
exceeding one year and that the subsequent appointments may
be for such number of years not exceeding three as the State
Government may deem necessary from time to time. The
remuneration of the Brief Holders is referred to at
Paragraph 6.04. On the civil side, the Brief Holder is
entitled to the same fee as would be payable to a Standing
Counsel for doing similar work and on the criminal side, the
remuneration is mentioned in terms of fee per day
irrespective of the number of cases conducted and the hours
of work put in by him. No salary or any other kind of
monthly remuneration is payable to him. In case of dispute
with regard to the fee, the decision of the Legal
Remembrancer is to be final. Paragraph 6.05 states that it
is the Government Advocate who shall allot criminal cases
and the Chief Standing Counsel who shall allot civil cases
to the Brief Holders and shall also exercise supervision and
control over them. Paragraph 6.06 then states that the
Government Advocate and the Chief Standing Counsel shall
entrust only such cases to the Brief Holders which cannot be
attended to by them or other law officers under them and
which are not required to be conducted personally by them.
It also details classes of cases which shall not,
ordinarily, be entrusted to the Brief Holders. Paragraph
6.07 requires the entrustment of cases to the Brief Holders
by rotation in a manner as may ensure an equitable
distribution of work among all of them except where the
Government Advocate or the Chief Standing Counsel may in the
interest of the better prosecution of cases think it
necessary to depart from the rule. Paragraph 6.1 1 gives
the Brief Holder, the right to private practice and also for
accepting cases against the Government. Paragraph 6.13
refers to the manner of removal of Brief Holder and states
that the Government may at any time without prior notice and
without assigning any reason whatsoever, remove the name of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11
the Brief Holder from
213
its panel. Paragraph 6.16 prohibits Brief Holders from
participating in any political activity so long as they work
as Brief Holders. The other provisions of the chapter are
not relevant for our purpose.
10. The conditions of service of the Government Advocate and
Additional Government Advocate, Deputy Government Advocate
or Assistant Government Advocate for conducting criminal
matters in the High Court are the same as that of the Chief
Standing Counsel and the Standing Counsel respectively.
11. Since the respondents have relied heavily on a judgment
of this Court in Shrilekha Vidyarthi v. State of U. P. 1
which deals specifically with appointments and removal of
the District Government Counsel and the Additional/Assistant
District Government Counsel, and the appellants have tried
to distinguish the said judgment, it is necessary to examine
the relevant conditions of service of the District
Government Counsel as detailed in Chapter VII of the said
Manual. The District Government Counsel are legal
practitioners appointed by the State Government to conduct
in any court other than the High Court such civil, criminal
or revenue cases on behalf of the State Government as may be
assigned to them either generally or specially (paragraph
7.01). The Government have also the power to appoint
Additional or Assistant District Government Counsel or
Subordinate District Government Counsel to assist the
District Government Counsel (paragraph 7.02). Paragraph 7.03
relates to the appointment of the District Government
Counsel. Whenever the post of any of the District
Government Counsel is likely to fall vacant or when a new
post has been created, the District Magistrate concerned has
to notify the vacancy to the members of the Bar. The
qualification for appointment as a District Government
Counsel, Assistant District Government Counsel and Sub-
District Government Counsel is 10 years’, 7 years’ and 5
years’ practice respectively. The District Magistrate shall
also ask those who want to be considered for appointment to
give their names to him with their particulars such as age,
length of practice at the Bar, proficiency in Hindi, income
tax paid by him on professional income during the last three
years, details of the work handled by them during the
preceding two years duly verified by the court and also to
state whether they have practised on the criminal, civil or
revenue side. The District Government Counsel and the legal
practitioners of the neighbouring districts are also
eligible to be considered for the said post and they have to
forward their particulars through their District Magistrate
who has to offer his own remarks on the particulars so
given. When the names are so received, they have to be
considered by the District Magistrate in consultation with
the District Judge. The District Magistrate has to give due
weight to the claim of the existing incumbents if any, and
has to submit confidentially in the order of preference the
names of the legal practitioners to the Legal Remembrancer.
He has also to give his opinion, particularly, about the
character, professional conduct and integrity of the
candidate and
1 (1991) 1 SCC 212: 1991 SCC (L&S) 742
214
forward to the Legal Remembrancer the opinion of the
District Judge on the suitability and merits of each
candidate. The District Magistrate has also to send to the
Legal Remembrancer, the bio data submitted by other
candidates with such comments that he and the District Judge
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11
may like to make. The District Magistrate is also required
to recommend the name of any person who may be considered
fit by him although he has not formally supplied his
particulars. Paragraph 7.04 then states that on receipt of
the recommendations of the District Magistrate, the Legal
Remembrancer may, if necessary, make such further inquiry
about the candidate as he may deem necessary and then submit
the recommendations of the District Magistrate along with
his own opinion for the orders of the Government whose
decision shall be final. Paragraph 7.06 states that the
legal practitioners who are finally selected by the
Government may be appointed as District Government Counsel
for one year. At the end of the period of one year, the
District Magistrate after consulting the District Judge has
to submit a report on his work and conduct to the Legal
Remembrancer together with the statement of work done by
him. If his work and conduct are found to be
unsatisfactory, the matter has to be reported to the
Government for orders. If the report on his work and
conduct is satisfactory, the appointee may be furnished with
a deed of engagement in Form No. 1 annexed to the Manual and
the engagement is to be for a term not exceeding three
years. The said paragraph makes it explicitly clear that
the appointment of a legal practitioner as District
Government Counsel is only a professional engagement
terminable at will on either side and is not an 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. Paragraph 7.07 bars the District Government
Counsel from participating in political activities.
Paragraph 7.08 deals with the renewal of the term of the
District Government Counsel and states that at least three
months before the expiry of the term, the District
Magistrate shall after consulting the District Judge and
considering the incumbent’s past record of work and conduct
and age, report to the Legal Remembrancer together with a
statement of work done by him, whether in his opinion, the
term of appointment of such counsel should be renewed or
not. The District Magistrate has to send along with his own
recommendations, the opinion of the District Judge. While
giving his recommendations for renewal of the term, the
District Judge has to give an estimate of the quality of the
counsel’s work from the judicial standpoint, his capacity as
a lawyer and his professional conduct. Similarly, the
District Magistrate while giving his report about the
suitability of the District Government Counsel from the
administrative point of view, has to report on the
candidate’s public reputation in general, his character,
integrity and professional conduct. If the Government
agrees with the recommendations of the District Magistrate
for the renewal of the term of the Government Counsel, it
may pass orders for reappointing him for a period not
exceeding three years. If the Government decides not to
reappoint any Government
215
Counsel, the Legal Remembrancer may call upon the District
Magistrate to forward fresh recommendations. This procedure
is to be followed on the expiry of every successive period
of renewed appointment. For the above purpose, the District
Magistrate and the District Judge are required to keep a
character roll and maintain a record of the work done by the
District Government Counsel and the capacity displayed by
him in the discharge of his work. The Government (in
Judicial Advice Section) is also required to keep similar
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11
character roll based upon the copy of the confidential
reports recorded by the District Magistrate and the District
Judge, and forward it to the Legal Remembrancer. The
shortcomings on the part of the District Government Counsel
have at once to be brought to the notice of the Legal
Remembrancer. The District Government Counsel (Civil) is
prohibited altogether from advising or appearing against the
State or Central Government in any civil case pertaining to
the district or the local area to which he is appointed.
However, he may appear against the State or the Central
Government with the prior permission of the Legal
Remembrancer in any civil case in which he has not been
retained by the Government. Subject to this restriction,
the District Government Counsel (Civil) has a right to
private practices
12. The District Government Counsel (Civil) is prohibited
from becoming a counsel of any Municipality or Municipal
Corporation or other local authorities of the area to which
he is appointed. The Assistant District Government Counsel
(Civil) is prohibited from appearing in suits instituted by
private parties against the State or Union of India in
courts in which according to the allocation of work, he is
alone authorised to represent the State. He is, however,
free to take up private cases against the State or Union of
India in other courts. Similar restriction is placed on the
Sub-District Government Counsel. As regards, the District
Government Counsel (Criminal) and Additional District
Government Counsel (Criminal), they are prohibited from
appearing for any private party in any criminal case.
However, with certain exceptions, with the prior approval of
the Legal Remembrancer, they are allowed to appear. Similar
restrictions are placed on District Government Counsel
(Revenue). Paragraph 7.18 states that the District
Government Counsel in a district shall be subject to the
supervision of the Legal Remembrancer as well as the
District Magistrate. Their confidential reports are also to
be submitted by the District Magistrate to the Government
through the Legal Remembrancer. Paragraphs 7.19 to 7.22
deal with the duties of the District Government Counsel
(Civil), (Criminal), (Revenue) respectively. Paragraphs
7.24 and paragraphs 7.26 to 7.45 deal with the fees payable
to the District Government Counsel. Paragraph 7.61 gives
power to the Legal Remembrancer to forfeit the fees payable
to the District Government Counsel in certain cases. The
conditions of service of the Additional/ Assistant
/Subordinate District Government Counsel are similar to
those of the District Government Counsel mutatis mutandis.
13. The appointment of lawyers by the Government and the
public bodies to conduct work on their behalf, and their
subsequent removal from
216
such appointment have to be examined from three different
angles, viz., the nature of the legal profession, the
interests of the public and the modes of the appointment and
removal.
14. Legal profession is essentially a service-oriented
profession. The ancestor of today’s lawyer was no more than
a spokesman who rendered his services to the needy members
of the society by articulating their case before’ the
authorities that be. The services were rendered without
regard to the remuneration received or to be received. With
the growth of litigation, lawyering became a full-time
occupation and most of the lawyers came to depend upon-it as
the sole source of livelihood. The nature of the service
rendered by the lawyers was private till the Government and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11
the public bodies started engaging them to conduct cases on
their behalf. The Government and the public bodies engaged
the services of the lawyers purely on a contractual basis
either for a specified case or for a specified or an
unspecified period. Although the contract in some cases
prohibited the lawyers from accepting private briefs, the
nature of the contract did not alter from one of
professional engagement to that of employment. The lawyer
of the Government or a public body was not its employee but
was a professional practitioner engaged to do the specified
work. This is so even today, though the lawyers on the
full-time rolls of the Government and the public bodies are
described as their law officers. It is precisely for this
reason that in the case of such law officers, the saving
clause of Rule 49 of the Bar Council of India Rules waives
the prohibition imposed by the said rule against the
acceptance by a lawyer of a full-time employment.
15. The relationship between the lawyer and his client is
one of trust and confidence. The client engages a lawyer
for personal reasons and is at liberty to leave him also,
for the same reasons. He is under no obligation to give
reasons for withdrawing his brief from his lawyer. The
lawyer in turn is not an agent of his client but his
dignified, responsible spokesman. He is not bound to tell
the court every fact or urge every proposition of law which
his client wants him to do, however irrelevant it may be.
He is essentially an adviser to his client and is rightly
called a counsel in some jurisdictions. Once acquainted
with the facts of the case, it is the lawyer’s discretion to
choose the facts and the points of law which he would
advance. Being a responsible officer of the court and an
important adjunct of the administration of justice, the
lawyer also owes a duty to the court as well as to the
opposite side. He has to be fair to ensure that justice is
done. He demeans himself if he acts merely as a mouthpiece
of his client. This relationship between the lawyer and the
private client is equally valid between him and the public
bodies.
16. Over the years, the public sector has grown
considerably, and with its extension and expansion, the
number of lawyers engaged in the public sector has increased
noticeably so much so that it can truly be said that today
there is a public sector in the legal profession as well.
The expansion of the public sector activities has
necessitated the maintenance of a permanent panel of
lawyers. Some of the lawyers are also in full-time
employment of
217
the public institutions as their law officers. The profile
of the legal profession has thus undergone a change.
17. The Government or the public body represents public
interests, and whoever is in charge of running their
affairs, is no more than a trustee or a custodian of the
public interests. The protection of the public interests to
the maximum extent and in the best possible manner is his
primary duty. The public bodies are, therefore, under an
obligation to the society to take the best possible steps to
safeguard its interests. This obligation imposes on them
the duty to engage the most competent servants, agents.,
advisers, spokesmen and representatives for conducting their
affairs. Hence, in the selection of their lawyers, they are
duty-bound to make earnest efforts to find the best from
among those available at the particular time. This is more
so because the claims of and against the public bodies are
generally monetarily substantial and socially crucial with
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11
far-reaching consequences.
18. The mode of appointment of lawyers for the public
bodies, therefore, has to be in conformity with the
obligation cast on them to select the most meritorious. An
open invitation to the lawyers to compete for the posts is
by far the best mode of such selection. But sometimes the
best may not compete or a competent candidate may not be
available from among the competitors. In such
circumstances, the public bodies may resort to other methods
such as inviting and appointing the best available, although
he may not have applied for the post. Whatever the method
adopted, it must be shown that the search for the
meritorious was undertaken and the appointments were made
only on the basis of the merit and not for any other
consideration.
19. It would be evident from Chapter V of the said Manual
that to appoint the Chief Standing Counsel, the Standing
Counsel and the. Government Advocate, Additional Government
Advocate, Deputy Government Advocate and Assistant
Government Advocate, the State Government is under no
obligation to consult even its Advocate-General much less
the Chief Justice or any of the judges of the High Court or
to take into consideration, the views of any committee that
" may" be constituted for the purpose. The State
Government has a discretion. It may or may not ascertain
the views of any of them while making the said appointments.
Even where it chooses to consult them, their views are not
binding on it. The appointments may, therefore, be made on
considerations other than merit and there exists no
provision to prevent such appointments. The method of
appointment is indeed not calculated to ensure that the
meritorious alone will always be appointed or that the
appointments made will not be on considerations other than
merit. In the absence of guidelines, the appointments may
be made purely on personal or political considerations, and
be arbitrary. This being so those who come to be appointed
by such arbitrary procedure can hardly complain if the
termination of their appointment is equally arbitrary.
Those who come by the back door have to go by the same door.
This is more so when the order of appointment itself
stipulates that the appointment is terminable at any time
without assigning any reason. Such appointments are made,
accepted and understood by both
218
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.
20. As the facts narrated earlier show, out of 26
respondents-law officers, the period of contract of nine of
them had expired and they were continued till further
orders. The remaining seventeen had continued after the
expiry of their initial term without even formal orders of
extension. In other words, none of the 26 officers had any
right to hold the office on the date of their removal, even
under the initial terms of appointment which stipulated the
contractual period. This is apart from the fact that the
terms of the contracts also provided that the appointment
could be terminated at any time without assigning reason.
The reliance placed by the respondents in this behalf on
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11
Shrilekha Vidyarthi v. State of U.P. 1 is misplaced for the
obvious reason that the decision relates to the appointment
of the District Government Counsel and the
Additional/Assistant District Government Counsel who are the
law officers appointed by the State Government to conduct
civil, criminal and revenue cases in any court other than
the High Court. Their appointments are made through open
competition from among those who are eligible for
appointment and strictly on the basis of merit as evidenced
by the particulars of their practice, opinions of the
District Magistrate and the District Judge and also after
taking into consideration their character and conduct.
Their appointment is in the first instance for one year. It
is only after their satisfactory performance during that
period that a deed of engagement is given to them, and even
then the engagement is to be for a term not exceeding three
years. The renewal of their further term again depends upon
the quality of work and conduct, capacity as a lawyer,
professional conduct, public reputation in general, and
character and integrity as certified by the District
Magistrate and the District Judge. For the said purpose,
the District Magistrate and the District Judge are required
to maintain a character roll and a record of the work done
by the officer and the capacity displayed by him in
discharge of the work. His work is also subject to strict
supervision. The shortcomings in the work are required to
be brought to the notice of the Legal Remembrancer. It will
thus be seen that the appointment of the two sets of
officers, viz., the Government Counsel in the High Court
with whom we are concerned, and the District Government
Counsel with whom the said decision was concerned, are made
by dissimilar procedures. The latter are not appointed as a
part of the spoils system. Having been selected on merit
and for no other consideration, they are entitled to
continue in their office for the period of the contract of
their engagement and they can be removed only for valid
reasons. The people are interested in their continuance for
the period of their contracts and in their non-substitution
by those who may come in through the spoils system. It is
219
in these circumstances that this Court held that the
wholesale termination of their services was arbitrary and
violative of Article 14 of the Constitution. The ratio of
the said decision can hardly be applied to the appointments
of the law officers in the High Court whose appointment
itself was arbitrary and was made in disregard of Article 14
of the Constitution as pointed out above. What is further,
since the appointment of District Government Counsel is made
strictly on the basis of comparative merits and after
screening at different levels, the termination of their
services is not consistent with the public interests. We
are, therefore of the view that the High Court committed a
patent error of law in setting aside the order dated July
23, 1990 terminating the services of the respondents-law
officers.
21. Coming now to the High Court’s order setting aside the
government order dated May 26, 1990 by which the Government
had abolished the system of Brief Holders, and instead the
power was given to the Legal Remembrancer to appoint special
counsel for special matters, we are of the view that the
High Court has committed a still graver error. As has been
pointed out above, Chapter VI of the said Manual deals with
the system of appointing a panel of Brief Holders in the
High Court. The appointment of the lawyers on the panel of
Brief Holders is made by the State Government only in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
consultation with the Advocate-General who is its own
officer and from among the advocates of the High Court who
have completed a minimum of five years practice at the Bar.
The selection of Brief Holders is not made after open
competition. Their appointment is purely at the discretion
of the State Government. The Brief Holders are further
appointed to handle that work which cannot be attended to by
the Government Advocate and Chief Standing Counsel. No
salary or any other kind of monthly remuneration is payable
to them. They are paid per brief handled by them. They are
not barred from private practice or from accepting cases
against the Government. It will thus be apparent that their
appointment is in supernumerary capacity. It is
necessitated because there may be work which cannot be
attended to by the Government Advocate and the Chief
Standing Counsel. They are not assured of any regular work
much less any regular fee or remuneration. They get briefs
only if the Government Advocate and Chief Standing Counsel
are overworked and not otherwise. They are like ad hoc
counsel engaged for doing a particular work when available.
Their only qualification is that they are on the panel of
the counsel to be so appointed for handling the surplus
work. We are, therefore, at a loss to understand as to how
any fault can be found with the Government if the Government
has now thought it fit to abolish the said system and to
appoint each time special counsel for special cases in their
place.
22. It is evident from the tenor of the High Court judgment
that the Legal Remembrancer has been made a special target
and has been treated almost like the villain of the piece.
The judgment ignores that the Legal Remembrancer as a
responsible officer and part of the Government always had a
role to play in the appointments of the counsel, in the
distribution of the work among them and also in supervising
their work and in sanctioning
220
their bills. For this purpose, we have referred to the
relevant provisions of Chapters V, VI and VII of the Manual
in extenso Even a cursory reading of the said chapters will
show that no material additional power has been vested in
him by the Government on account of the present measures.
In any case, if the Government has chosen to do so, the
Legal Remembrancer can hardly be blamed for the same.
Certainly he does not deserve the kind of compliments which
the High Court has chosen to pay him. The comments and
observations made against him are, therefore, both
unjustified and unfortunate.
23. In the result, we set aside the judgment of the High
Court and declare that both the orders dated July 23, 1990
and May 26, 1990 are valid and proper. We further hold that
the termination of the appointment of the respondents-law
officers was valid and proper. We also hold that the
direction given by the High Court to the Government to
continue the system of Brief Holders is unjustified and the
same stands quashed. We also set aside the order of the
High Court quashing the fresh appointments and directing
payments to the officers whose appointments were terminated.
The appeals are allowed accordingly. However, in the
circumstances of the case, there shall be no order as to
costs.
225