TMI Blog1993 (1) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... ong 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 engaging Brief Holders in the High Court was abolished with immediate effect. By yet another order of June 28, 1990, the Government had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 such cases or class of cases as are excluded by the State Government by general or sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aph 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 6.11 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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 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 may like to make. The District Magistrate is also required to recommend the nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 character roll based upon the copy of the confidential reports r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 the public bodies started engaging them to conduct cases on their behalf. The Government and the public bodies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 far-reaching consequences. 18. The mode of appointment of lawyers for the public bodies, therefore, has to be in conformity with the obligation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 Shrilekha Vidyarthi v. State of U.P. (1991) 1 SCC 212 is misplaced for the obvious reason that the decision relates to the appointment of the District Government Counsel and the Additional/Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution 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 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 y ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
