S.M. Chaligepi vs State of Karnataka and Others

Aravind Kumar, J.—Heard Sri S.P. Kandagal, learned counsel appearing for the petitioner. Perused the case papers.

Petitioner herein was appointed as an Additional Government Pleader for a period of three years by order dated 11.08.2010. Subsequently, by notification dated 27.04.2013, it was extended for a period of three years or until further orders whichever is earlier vide notification Annexure-A.

First respondent by communication dated 30.08.2014 directed the District Magistrate to collect applications through District Judge, Bagalkot, from eligible advocates along with the opinion of the District Judge vide Annexure-B for being appointed as Additional Government Pleader. Accordingly, District Magistrate, Bagalkot, vide communication dated 27.10.2014 addressed to the District Judge requested the District Judge to forward the list of eligible advocates. Accordingly, District Judge is said to have forwarded the list as per Annexure-C to the District Magistrate which also contained the name of petitioner and the District Magistrate in turn forwarded the same to the 1st respondent by communication dated 27.10.2014 Annexure - D. First respondent by order dated 07.02.2015 Annexure - E appointed 2nd respondent as District Government Pleader, Bagalkot, in place of petitioner and under the impugned order itself, petitioner was relived of his duties. Aggrieved by said order appointing 2nd respondent as District Government Pleader and relieving the petitioner of his duties vide order dated 07.02.2015 Annexure-E, petitioner is before this Court challenging the same.

It is the contention of Mr. S.P. Kandagal, learned counsel appearing for the petitioner that termination amounts to removal within the meaning of Article 311 (2) of the Constitution of India and services of the petitioner could not have been terminated before the completion of extended period of his term and such removal amounts to stigma. As such, impugned order is liable to be quashed.

Having heard the learned counsel appearing for the petitioner and on perusal of the records, this Court is of the considered view that present petition does not merit admission and it is liable to be rejected at the threshold for the reasons that would be unfold hereinbelow.

Somewhat in similar circumstances, the Hon''ble Apex Court in the case of State of U.P. and others Vs. U.P. State Law Officers Association and others, has held where the appointment order of Law Officers engaged by the State to conduct cases on its behalf in High Court itself stipulated that their appointments were terminable without assigning any reasons, such termination of their appointments without any reason cannot be held to be arbitrary. It has been held by the Hon''ble Apex Court to the following effect:

"6. The appointment of lawyers by the Government and the public bodies to conduct work on their behalf, and their subsequent removal from 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. 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 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. 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. 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 the public institutions as their law officers. The profile of the legal profession has thus undergone a change.

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 far-reaching consequences. 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.

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 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.

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 Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, 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 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 23.07.1990 terminating the services of the respondent-law officers."

Keeping the above laid down principles by the Hon''ble Apex Court in mind, when facts in the instant case are examined, it can be noticed that petitioner herein was appointed as Additional Government Pleader in Bagalkot District as per the Karnataka Law Officers (Appointment and Conditions of Service) Rules, 1977 (for short ''Rules'') initially for a period of three years from the date of taking charge which undisputedly was 11.08.2010. Before the said period coming to an end appointment of the petitioner came to be extended for a further period of three years vide order dated 27.04.2013 Annexure-A. The said order would clearly indicate that the renewal is for a period of three years or "until further orders". Even before the expiry of said three years stipulated under Annexure-A, impugned order dated 07.02.2015 Annexure-E came to be passed by 1st respondent in exercise of its power vested under Rule 26(2) of the Rules. Sub rule (6) of Rule 5 enables the State Government to terminate the services of Law Officers without assigning any reason by giving one month''s notice in writing or by giving one month''s retainer-fee in lieu of such notice as the case may be. It is by virtue of said Rule, impugned order came to be passed terminating the appointment of petitioner by paying one month''s retainer fee in lieu of notice of termination and also appointing 2nd respondent by impugned order. Perusal of the impugned order does not even remotely suggest that it can be termed as one with stigma. It is a termination simplicitor and as such, no infirmity can be found in the order of termination.

When the State does not require the services of an advocate who had been appointed as an Additional Government Pleader, the dignified profession from which the petitioner hails from, demands and commands that he should put in his papers rather than litigating the matter in courts over such termination which may not bring good name to either himself or to the noble profession.

For the reasons assigned hereinabove, I do not find any merit in this writ petition. Accordingly, it stands rejected.