A.M.Shah vs State of J&K and Ors.

In this writ petition, petitioner prays for direction to respondents to permit him to continue to work as a Standing counsel for service Selection

Board for Srinagar Wing of the High Court, The main submission made in the petition are that the petitioner was appointed as Standing Counsel on

20.10.1998 by respondent No. 4 to represent the interest of the respondents in the litigation before this Court. The Chairman of SSB could, not

terminate the services of the petitioner as a standing counsel, at his back, without notice. The services of the petitioner were terminated on

whimsical grounds without any competence and sanction from General Administrative Department/Law Department of the State. In view of the

Government order Rule 20 of SRO 1994.

The petitioner being aggrieved of the action of termination of his retainer ship prays that the respondents be directed to quash order No.

178SSB of 2000 dated 29.09.2000 vide which new Legal Team has been appointed and act upon the order No. 578ID (Estt.) of 1999 dated

20.05.1999. The petitioner further prays that respondents be directed to pay Rs. 20,000/ as retainer ship fee, Rs. 10.000/ as fee for each case

and incidental charges of Rs. 1000/ per case.

The stand by the respondents is that appointment of an Advocate as a standing counsel by the respondents does not constitute public

appointment within the meaning of Article 16 (2) (i) of the Constitution. The relationship of an Advocate is regulated by the provisions of the

Advocates Act and every client has a right to choose the advocate of his choice. The retainership of the petitioner was only for a period of one

year and after the expiry of the said period, the petitioner has no right to compel the respondents to continue with the retainership arrangement in

disregard of the legal rights of the respondents to choose the counsel of their choice.

Heard learned counsel for the par ties and perused the entire material placed on record.

The submission of learned counsel for the petitioner that simply because there is no mention of duration of retainership in the initial order of

appointment No. 578 ID (Estt.) of 1999 dated 20.05.1999. therefore, the services of the petitioner as retainer could not be terminated, cannot be

allowed for multiplereasons. Respondent No. 4, SSB. admittedly a wing of the State is a litigant before the Courts and all litigants, not only, have

constitutional guarantee to select the counsel of their choice, but also, freedom to change the Advocates whenever they feel to do so. While

upholding this view, the Apex Court has gone a step further and ob served that once the litigant decides to change his Advocate, the Advocate is

under obligation to return the brief to the client. This view has been taken by the Apex Court in judgement reported in SRJ 113, the relevant

portion of which reads as under :

A litigant must have the freedom to change his advocate when he feels the advocate engaged by him is not capable of espousing his cause

efficiently or that his conduct in prejudicial to the interest involved in the list, or for any other reason. For whatever reason, if a client does not want

to continue the engagement of a particular advocate it would be a professional requirement consistent with the dignity of the profession that he

should return the brief to the client, it is time to hold that such obligation is not only a legal duty but a moral imperative.

Learned counsel for the petitioner has submitted that in view of the judgement of the Apex Court in Kumari Shrilekha Vidyarthi etc. vs. state of

U.P. and others, reported in Supreme Court Service Rulings, the petitioner is entitled to continue as Standing Counsel for the respondents

department.

The judgement of the Supreme Court has been carefully perused. With due respects, the judgement is distinguish able and does not apply to the

facts of the present case. Before the Hon'ble Supreme Court, the petition was filed in which renewal of tenure of, all the existing Government

Counsels and calling of new penal for new appointments, was under consideration and the Apex Court while scrutinizing the action of the State

observed that the State must show that the orders have not been passed on whims or caprice and are not arbitrary or unreasonable in violation of

rules and norms governing the controversy.

From the perusal of the order under which the petitioner was taken as standing counsel, it is manifestly dear hot the engagement was purely for

personal service. A contract of personal service cannot be enforced as held by the Supreme Court in case titled Executive Committee of U.P.

State Warehousing Corp., Lucknow vs. Chandra Kiran Tyagi reported in AIR 1970 SC 1244, the relevant portion of which is reproduced as

under :

Normally a contract of personal service will not be enforced by an order for specificperformance nor will it be open for a sevant to refuse to

accept the repudiation of a contract of service by his master and say that the contract has never been terminated. The remedy of the employee is a

claim for damages for wrongful dismissal or for breach of contract. But then; a statutory status is given to an employee and there has been a

violation of the provisions of the statute while terminating the services of such an employee, the latter will be eligible to get the relief of a declaration

that the order is null and, void and that the he continues la be in service, as it will not then be a mere case of a master terminating the services of a

servant. The exceptions to the normal rule that no declaration to enforce a contract of personal service will toe, granted are:

(1) a public servant. who has been dismissed from service in contravention of Article 311

(2) reinstatement of a dismissed worker under Industrial Tribunal's.;

(3) a statutory body when it has acted in breach of a mandatory obligation, imposed by statute.

(4) The engagement of an by the State does not constitute a statutory appointment. There is no legal requirement to advertise the posts and no one

has a vested right to claim, consideration for appointment even if he is otherwise eligible. The petitioner cannot and should not have projected his

grievance, if the respondents selected some other advocate. which in the opinion of the respondents, would serve and safeguard their interest in an

effective and satisfactory manner.

As the petition is devoid of any merit, the same is dismissed alongwith connected CMP(s).