Ranjit Guha Niyogi v. STATE OF WEST BENGAL — 1979 DIGILAW 69 (CAL)

JUDGMENT 1. IN this rule arising out of an application under Article 226 of the constitution, the petitioner, an Inspector of police attached to the Calcutta Police directorate, challenges the appearance of Mr. Arun Prakas Chatterjee, standing Counsel, on behalf of the complainant, Srimati Archana Guha, in a criminal proceeding before the learned chief Metropolitan Magistrate, Calcutta started on her complaint against him and other Police personnel at the relevant time alleged to have been attached to the Special cell, Detective Department, Lal Bazar. Srimati Archana Guha who is respondent No. 5 in this rule filed a petition on August 20, 1977 in the Court of the Chief Metropolitan Magistrate, Calcutta aleging that the aforesaid persons committed intense torture on her during July 18 to July 20, 1974 at the Special Cell in the Lal Bazar police Head Quarters where she was brought from her residence earlier resulting to an almost paralysis of her lower limbs. On this petition the learned magistrate took cognizance of the offence and issued process against the accused persons giving rise to Case No. C/3285/77 under Section 166, 330/34, 331/34 and 509 of the Indian Penal code. In this proceeding Mr. Arun prakas Chatterjee who in his official designation as the Standing Counsel, high Court is respondent No. 3 in this rule represented the complainant and conducted the case on her behalf against accused persons Who it was alleged are Public Servants though he had been and is a Counsel appointed by the state to defend the state and public servants. 2. IT was stated that the act of mr. Chatterjee in so appearing was in violation of the provisions of Sections 2 and 3 of the West Bengal Appropriation (No. 2) Act, 1977 (West Bengal Act XIX of 1977). Further the conduct of Mr. Chatterjee was also in violation of Rule 45 of the Legal remembrancer's Manual, Second Edition, 1971, for as a Legal Adviser to the state he is not competent to hold briefs against the State and its officers in discharge of their official duties. On these grounds it was submitted that appropriate Writs should issue restraining Mr. Chatterjee from advising a private party and holding her brief in the aforesaid proceeding pending the hearing of the application. On this application this Court issued a Rule on August 16, 1978 on the state of West Bengal as also on Mr. On these grounds it was submitted that appropriate Writs should issue restraining Mr. Chatterjee from advising a private party and holding her brief in the aforesaid proceeding pending the hearing of the application. On this application this Court issued a Rule on August 16, 1978 on the state of West Bengal as also on Mr. Chatterjee and others to show cause why appropriate writs as prayed for should not issue but no interim order was granted. It will appear that in the mean time the accused persons have been committed to the Court of Session and mr. Chatterjee by an order of the government dated the 6/8, January 1979 has been appointed to conduct the prosecution on behalf of the complainant obviously under the provisions of section 225 of the Criminal Procedure code. In this state of affairs it would prima facie appear that instant Rule has become infructuous in view of the subsequent orders of the learned Chief metropolition Magistrate committing the accused persons to the Court of session. But in view of the elaborate arguments raised at the Bar on the questions of law involved therein and the possible effect of the decision even in respect of the Sessions trial we proceed to examine if the conetntions raised by the petitioner are sustainable in law. 3.THE Legal Remembers's Manual as it appears, is a compilation of executive orders and instructions passed from lime to time, as will appear from the preface of the First Edition of the manual dated May 9, 1930 which is to the following effect : - "the necessity to get together a Legal Remembrancer's Manual has been felt for many years by officers of this Government as also by officers outside this Province. The office has developed in many directions and the various rules and orders are scattered in different files. It is hoped that difficulty will be removed by the Manual. " The Second Edition came out in. 1971 and it was noted in the preface; as follows : - "since 1930 there has been many a change. The most important of such changes has been the commencement of the Constitution which has created the great institution viz. the Supreme Court of India. It has also conferred on the high Courts new powers to issue writs of various kinds in enforcement of Fundamental Rights and for other purposes. The most important of such changes has been the commencement of the Constitution which has created the great institution viz. the Supreme Court of India. It has also conferred on the high Courts new powers to issue writs of various kinds in enforcement of Fundamental Rights and for other purposes. There has also been a spate of various welfare legislation in the wake of the Constitution. All these have meant an enormous increase in the volume of work of Legal Remembrancer who is not only to interpret the laws and rules for all administrative departments but is also to help them in their litigations in different Courts. To meet the needs of these changes new rules have been framed from time to time and old rules have been modified and adapted as and when necessary. Most of these rules and orders lie scattered in different files and am attempt has been made to get them all together in this volume. Whenever any rule has been found to be ambiguous, it has been recast to make the meaning clear. On some matters new rules have been framed in the course of the revision of the manual. Care has been taken to see that all Government order up to date are incorporated in the volume. " Rule 45 of the Manual is as follows : "45. Limitations of the Office.-The Senior Government Advocates/Standing Counsel and the Junior government Advocates/junior Standing Counsel, as condition of their service, are debarred from : (i) advising or holding briefs against the State; (ii) defending accused persons in criminal Prosecutions; (iii) advising private parties in cases in which they are likely to be called on to advise the government; and (iv) accepting appointment as Director of a company without the sanction of the Government. " About the authority of this Manual the Court enquired of the learned additional Advocate General who appeared with Mr. Asit Banerjee. Advocate, representing Mr. Chatterjee, the Standing Counsel; as also the State of West Bengal and also of Mr. Arun Prakas Chatterjee, standing Counsel, who appeared with Mr. Samar Dutta, Advocate, on behalf of respondent No. 5 the complainant, Srimati Archana guha, and they submitted that these rules in the Manual have no statutory basis. On further enquiry of the Legal Remembrancer through the learned Counsel a letter which is set out below, was produced in court. No. 15649 HCIH-4472/78 Dated 21. Samar Dutta, Advocate, on behalf of respondent No. 5 the complainant, Srimati Archana guha, and they submitted that these rules in the Manual have no statutory basis. On further enquiry of the Legal Remembrancer through the learned Counsel a letter which is set out below, was produced in court. No. 15649 HCIH-4472/78 Dated 21. 12. 1978. From : The Superintendent and Remembrancer of Legal Affairs, Government of West Bengal, To : Shri Arun Prokas Chatterjee, Ld. Standing Counsel West Bengal . Subject : Civil Revision No. 4988 (w) /78, Ranjit Guha Neogi vs. State of West Bongsl and others. Sir, With reference to your letter datted 18. 12. 78, I was to state that there is nothing to indicate that Legal Remembrancer's Manual has a statutory basis. Yours faithfully. Sd . Illegible 21. 12. 78. For Legal Remembrancer, West Bengal . As a corollary it was submitted that if the rules of the Manual had no statutory basis, the petitioner had no right to invoke the Writ jurisdiction of this Court for any relief. 4. MR. Arun Kumar Dutt, appearing with Mr. Rabindra Nath Pal and subodh Kumar Bhattacharyya, learned counsel for the petitioner produced before me a copy of the notification dated april 3, 1941 issued by the Governor under the provisions of Section 241 (2) (b) of the Government of India Act, 1955 whereby rules were framed regulating recruitment to the post of the senior Standing Counsel and the junior standing counsel Bengal and the conditions of service of the persons appointed to the said posts. The rules in excerpts are as follows : - "no. 1309 J.-3rd April 1941.-In exercise of the power conferred by clause (b) of sub-section (2)of section 241 of the Government of India Act, 1935, and of all other powers enabling him in that behalf, the Governor is pleased to make the following rules regulating (1) the recruitment to the posts of the Senior Standing Counsel, Bengal; and the Junior Standing Counsel, Bengal and (2) the conditions of services of persons appointed in the said posts, namely :- I.- Recruitment. 1. The Standing Counsel and the junior Standing Counsel shall be included among the legal advisers of the Government of bengal. II.- Conditions of service. 4. The Standing Counsel shall receive a monthly retainer of Rs. 800 and the Junior Standing counsel a monthly retainer of rs. 500/- 5. 1. The Standing Counsel and the junior Standing Counsel shall be included among the legal advisers of the Government of bengal. II.- Conditions of service. 4. The Standing Counsel shall receive a monthly retainer of Rs. 800 and the Junior Standing counsel a monthly retainer of rs. 500/- 5. Duties without fees.- The duties covered by the monthly retainer are :- (a) either or both to act independently or as junior or juniors to the Advocate General in all cases in ordinary or Extraordinary Original Jurisdiction of the high Court in which the Advocate General is bound to appear without fees; (b) to draw pleadings and settle affidavits and petitions, if necessary, in all actions in which either or both acts or act independently or may be required to act as junior or juniors to the advocate General; (c) the Standing Counsel to conduct the prosecution at the High court Sessions of all murder and political cases and such other important cases only as the Provincial Government or the Judge presiding at the sessions might require him to conduct; (d) either or both to advise the provincial Government when required; (e) either or both to settle on behalf of the Provincial government all important contracts, deeds and bounds of indemnity: (f) the Junior Standing Counsel to act independently or as the junior to the Standing Counsel at the Criminal Sessions of the high Court and generally to assist the Standing Counsel. " 6. In eases and appeals outside those covered by retainers in which either or both the Senior or the Junior Standing Counsel appears or appear as junior pr juniors to the Advocate general the Senior and the junior Standing Counsel shall receive up to 20 Gms. and up to 10 Gms. respectively as fees. When either the Senior or the Junior Standing Counsel appears alone or as a leader the senior and the junior Standing Counsel shall receive upto 30 Gms. and upto 15 Gms. respectively as fees. The fees under this paragraph shall be fixed on each occasions, having regard to the nature and importance of the case. The consultation fee of the senior and the Junior Standing counsel shall be 5 and 3 gold mohurs, respectively. 7. and upto 15 Gms. respectively as fees. The fees under this paragraph shall be fixed on each occasions, having regard to the nature and importance of the case. The consultation fee of the senior and the Junior Standing counsel shall be 5 and 3 gold mohurs, respectively. 7. The conditions laid down in paragraphs 5 to 7 under the sub-heading "2-Advocate General" at page 14 of Chapter 1 of the Legal Remembrancer's manual, 1930 Volume I, are also applicable in the cases of the senior Standing Counsel and the Junior Standing Counsel. By order of the Governor, sd.-A. L. Blank, secy, to the Govt. of Bengal. " According to Mr. Dutt at the time the Constitution came in force this notification governed the conditions of service of the Standing Counsel where by the rules in paragraphs 5 to 7 under the sub-heading "2-Advocate-General" at page 14 of chapter I of the Legal, Remembrancer's Manual, 1930, Volume I, became also applicable to the Senior standing Counsel and the Junior Standing Counsel. It appears that by collection slip No. 59, rules of Section 2 of chapter I (Advocate-General) were substituted in 1937-38 Clause 7 whereof is as follows : "7. His limitations.-The Advocates-General as conditions of his service is debarred from - (i) Advising or holding briefs against the Province; (ii) Defending accused persons in criminal prosecutions unless specially authorised by the governor. [e.g., in a private prosecution in which Government is not interested.] (iii) Advising private parties in cases in which he is likely to be called on to advise the governor; and (iv) Accepting appointment as a director in any Company without the sanction of the Governor. The Officer himself must, however, be the judge as to whether he can, or cannot under rule (iii) advise on a question of law any private party who applies to him". 5. ACCORDING to Mr. Dutt when the Constitution came into force on January 26, 1950 the above provisions were existing laws which also became the laws of the land under Article 372 (1), of the constitution. He referred to the decision in Edward Mills Co. Ltd. v. State of Ajmer, AIR 1955 S. C. 25, wherein it has been held that the words "law in force" as used in Article 372 are wide enough to include not merely legislative enactment but also any legislation or order which has the force of law. He referred to the decision in Edward Mills Co. Ltd. v. State of Ajmer, AIR 1955 S. C. 25, wherein it has been held that the words "law in force" as used in Article 372 are wide enough to include not merely legislative enactment but also any legislation or order which has the force of law. In view of the above position even assuming that the Legal Remembrancer's Manual, 1971 is a compilation of executive instructions in so far as the limitations of office relating to the Advocate-General were extended to the Senior Standing counsel and other legal advisers to the government mentioned therein, the conditions of service contained in the notification of April 13, 1941 continued to govern the Senior Standing Counsel in respect of matters thereby covered. 6. MR. Gupta, learned Additional advocate General, as also Mr. Chatterjee referred to several decisions and contended that the above notification had no application to the office of the senior Standing Counsel inasmuch as there is and can be no control by the government in the matter of the discharge of duties by the aforesaid legal advisers. In other words, it was contended that the Government had no manner of control over such advisers in regard to the discharge of their official duties so that in the absence of administrative control there could be no relationship of master and servant between them which, according to the learned Counsel, can only bring them within the abmit of section 241 of the Government of India act, 1935 or Article 309 of the Constitution. They have also submitted that the aforesaid Legal Advisers have also the right to refuse any brief that may be offered to them by the Government and there is no compulsion requiring them to act in alt matters which may be referred to them. This right of refusal is a feature which could clearly indicate that they, the aforesaid Legal advisers though retainers, are not servants of the Government and as such there can be no notification in respect of such Advisers either under Section 241 of the Government of India Act, 1935 or article 309 of the Constitution, which would only apply to Government, servants, so that there was no legal prohibition in his accepting the brief of a private party like the respondent No. 5. 7. 7. ABOUT the right of a council to refuse to accept any brief offered by the Government at his discretion, it may be stated that Counsel can always refuse a brief but such refusal must be for good and substantial reasons. Under the Advocates Act, 1961, Section 49, rules have been framed by the Bar council of India in respect of standard of professional conduct and etiquette. The rules enjoin that Counsel is bound to accept any brief in courts or tribunals where he professes to practice but special circumstances may justify his refusal to accept a particular brief. He may therefore refuse a brief which will cause embarrassment to him for very many reasons. Thus when the State offers a brief to its Law Adviser, it will be possible for him to say on appropriate occasions that he will not accept the brief which for certain reasons may even remain undisclosed. Such right of refusal of lawyers to accept briefs accordingly, in my opinion, is no criterion or test for holding that such Law advisers are not servants of the Government, as it a special feature attached to the legal profession having regard to the duties the lawyers are required to discharge. 8. WE shall now consider the decisions cited at the bar. Mr. Chatterjee strongly relied on the decision in State of Rajasthan vs. Madanswarup, AIR 1960 Rajasthan 138, in which the Court was considering a claim for compensation in a suit against the Government filed by a legal practitioner for premature termination of his appointment as a Government Advocate. The legal practitioner was engaged till October 1947 to be in charge of the sessions work in the High Court at Bikaner and appeals arising from such cases on fixed salary under a scale for five years with right of civil practice. The appointment was under the State of Bikaner, and continued alter the state merged into the united State of Rajasthan and was further allowed to continue, after the Palt b State of Rajasthan was formed under the Constitution, until February 11, 1950 when the service was terminated. Modi and Bhandari, JJ. the learned Judges constituting the Division Bench held that the State of Rajasthan was entitled to the benefit of the doctrine of frustation as by an appropriate legislative enactment, the Bikaner High Court had been abolished. Modi and Bhandari, JJ. the learned Judges constituting the Division Bench held that the State of Rajasthan was entitled to the benefit of the doctrine of frustation as by an appropriate legislative enactment, the Bikaner High Court had been abolished. Modi J. was further of opinion, relying on an earlier decision of the same High Court that, a public prosecutor could say that he was a member of the civil service or holder of a civil post, if he was to give his whole time to the Government and to give up practice as Advocate altogether. It was further held that the precise relationship between the plaintiff and the former state of Bikaner was that of a standing counsel and his client and that the plaintiff was never a member of the civil service of Bikaner or holder of civil post at any relevant time and Article 311 was not attracted in such cases while the contracts between the Government and the lawyer were purely professional contracts. His Lordship further observed, a view not considered by the other learned Judge as necessary, that it is hardly possible for a legal practitioner on the roils of a High Court to be both a practitioner and a member of a permanent service of a State, as it is elementary that so soon as he becomes a member of such service he just have his practice suspended which was never done. Further the mere circumstance that instead of receiving any separate fees for each case conducted by him, he was offered monthly honorarium which he accepted was hardly something which could affect his true position as a legal practitioner and convert him into member of a permanent service. The correct position, it was held is that persona like the plaintiff continue to be legal practitioners on the roils, of the high Court and they have the right to practice in all courts in the State subject to the conditions that they can not appear against the Government and to certain other conditions which militate against a proper performance of the duties which they had undertaken for the state. Reliance was also placed on the decision in B. V. Chalapathi v. State of Andhra Pradesh, 1970 S. L. R. 192 Madras wherein Chinnppa Reddy, j, observed as follows: - "the relationship of master and servant must exist before a person can claim to hold a civil post under a State' and therefore entitled to protection of Article 311 of the Constitution. Now, an advocate who is appointed as Public prosecutor does not cease to be an advocate. He will continue to be on the roll of the Bar Council and will continue to be amenable to he disciplinary jurisdiction of the Ban Council. He does not place the whole of his time or all his services at me disposal of the Government. Except that he cannot appear, against the State in Criminal cases he is free to practice in all the courts in the land. His position, as well as the position of other Law Officers in relation to the Government is not that of a servant and master but rather that a lawyer and litigant or counsel and client. The Government while it has the right to make the appointment of a Public Prosecutor and stipulate and pay his remuneration, has no right to control the method of his doing work". The Court relied on the decision in the State of Uttar Pradesh v. A. N. Singh, AIR 1965 S. C. 360, wherein the following proposition was laid clown : "whether in a given case the relationship 0f master and servant exists is a question of fact, which must be determined on a consideration of ail material and relevant circumstances having a bearing on that question. In general, selection by the employer, coupled with payment by mm of remuneration or wages, the right to control the method of work and a power to suspend or remove from employment are indicative of the relation of master and servant. But co-existence of all those indicia is not predicated in every case to make the relation one of master and servant. In special classes of employment a contract of service may exist, even in the absence of one or more indicia. But co-existence of all those indicia is not predicated in every case to make the relation one of master and servant. In special classes of employment a contract of service may exist, even in the absence of one or more indicia. But ordinarily the right of an employer to control the method to doing the work, and the power of superintendence and control may be treated as strongly indicative of the relation of master and servant, for that relation imports the power not only to direct the doing of some work but also the power to direct the manner in which the work is to be done. If the employer has the power, prima facie, the relation is that of master and servant. " The Supreme Court in the decision in the State of Assam vs. Kanak chandra Dutta, A. I. R. 1967 S. C. 884, laid down : "a post is a service or employment. A person holding a post under a State is a person serving or employed under the state, see the marginal notes to Article 309, 310 and 311. The heading and the sub-heading of Part XIV and chapter I emphasise the element of service. There is relationship of master and servant between the State and a person said to be holding a post under it. The existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment of it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact; in each case whether there is such a relation between the states and the alleged holder of the post. " Even though the Moujader received as remuneration commission on collection of Government dues and was not a whole time employee, the Court held that the state had the power and the right to select and appoint him, he was under the control of the Deputy commissioner holding an office on the revenue side with onerous duties in connection with the affairs of the state land such office had an independent existence apart from the incumbent. There was thus, it was held, a relationship of master and servant between the State and him and he was a person serving or employed under the state. 9. IN the Superintendent of Post office vs. P.K. Rajamma, A.I.R. 1977 S.C. 1677, it was held that the extra departmental agents connected with, the postal department whose conditions of service are governed by the Rules of 1965 hold Civil posts under the union of India as contemplated under article 311 though they are outside the regular civil services. These agents under the rules work under the direct control and supervision of the authorities who obviously have the right to control the manner in which they must carry out their duties. There can be no doubt, it was held, that the relationship Between the postal authorities and the extra departmental agents is one of master and servant. 10. ACCORDING to the decision in a, N. Singh's case as also in Kanak chandra Dutta's case, it is not necessary that to be in Government Service one must have a full time employment or receive a fixed remuneration in a scale or otherwise, for such person may hold a part time employment or may receive a commission instead of a salary and presence of some of the indicia mentioned therein like selection and appointment, suspension, dismissal control of the manner and method or doing work will be sufficient to make a person a Government servant. Section 24 of the Advocates Act, 1961, refers to the person who may be admitted as Advocates. The provisions thereof in terms or by implication do not provide that a government servant cannot be an Advocate or a person on becoming a Government servant must of necessity suspend or discontinue his practice as a lawyer in Court. The right of a Government employee to practice as Advocate in Courts will depend on the terms and conditions of his employment under the Government. The right of a Government employee to practice as Advocate in Courts will depend on the terms and conditions of his employment under the Government. Rule 18 of the Legal remembrancer's Manual, 1971 provides that the advocate-General is the Chief Legal adviser of the Government and will hold office during the pleasure of the governor and will receive a monthly retainer; under Rule 23 the Advocate-General, as condition of his service, is debarred, inter alia, from advising or holding briefs against the State, defending accused persons in criminal prosecutions or advising private parties in cases in which he is likely to be called on to advise the Government, These, by implication, suggest that the Advocate-General subject to the aforesaid limitations is free to appear and plead as Advocate in Courts on behalf of private parties, so that, his service in the Government is not a whole time employment. Rules 25 of the Manual provide that the Government Pleader, high Court will be appointed by the government in the judicial department in consolation with the Advocate-General and is a gazetted but not whole time officer of the Government with a monthly retainer and will hold office during the pleasure of the Governor. Similarly Rule 40 provides that senior Government Advocate Standing counsel, Junior Government Advocates junior Standing Counsel shall be appointed by the Government in the judicial department and they shall hold office during the pleasure of the governor. While they will receive monthly retainer, they are gazetted but not whole time Government Servants. There is no restriction in Rule 45 of the Legal Remembrancer's Manual, 1071 in respect of the conditions of service of law advisers of the Government that such advisers of the Government, who receive a retainer fee, against acceptance of private, as opposed to state, briefs, in matters not against the State or where the State is not interested, or where the State may not seek their advice where it is not concerned. There is therefore no warrant in law for the proposition that it is not possible for a legal practitioner on the rolls of a High court to be both a legal practitioner and a member of a permanent but part time service of State as such legal advisers nor will it be a correct proposition to say that as soon as an Advocate becomes a part time member of service under the Government he must have bug practice suspended, since, everything depends on the terms and conditions of the Government employment, though there will no such opportunity for a whole time Government servant. The West Bengal Service rules framed by the Governor by notification No. 1136-F dated March 24. 1964 in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India which came into force from April 1, 1964 contemplate a law officer holding one of the following posts (i) an Advocate-General, (ii) a standing Counsel, (iii) a Government or Assistant Government Advocate and (iv) a Government Solicitor with a pay fixed at a definite rate hut as his whole time is not retained for the service of Government he is entitled to leave on certain calculations (Rule 214) while Rule 215 provides for leave of law officers who are whole time government servants. Rule 15 provides that unless in any case it is otherwise provided, the whole time of a Government servant shall be at the disposal of the Government so that it will not be possible for whole time law officers (in rules synonimous with law advisers) to be otherwise engaged except as he may be engaged by the Government but for part time law officers of the government there is no prohibition against their being engaged by private parties followed by consequent appearance in courts and tribunals on their behalf subject however to the limitations therein provided. 11. THE limitations of office of the standing Counsel of the Government have been duly provided for under the authority of Section 241 (2") of the government of India" Act, 1935. Such limitations being created under statutory powers by the competent authority are accordingly enforceable in law by issue of appropriate writs by the High court, apart from the provisions of the legal Remembrancer's Manual, 1971 wherein the limitations have also been incorporated. 12. Such limitations being created under statutory powers by the competent authority are accordingly enforceable in law by issue of appropriate writs by the High court, apart from the provisions of the legal Remembrancer's Manual, 1971 wherein the limitations have also been incorporated. 12. WE shall now consider if the rules framed from time to time and compiled in the said Manual are statutory. Under Article 166 (3) of the Constitution. Rules of Business have been framed by the Governor by notification No. 1209 A. R. dated June 5, 1965. Rule 6 provides that a department shall ordinarily consist of a Secretary to the government who shall be the official head of the department. It is further provided therein that the work of a. department may be divided between two or more Secretaries. Under Rule 19 of the Rules of Business, except as otherwise provided by any rule, cases shall ordinarily be disposed of by or under the authority of the Minister-in-charge who may by means of Standing orders give such directions as he thinks fit, for disposal of cases in the department. We have not been shown any standing Orders except those of subsequent date July 5, 1977 framed by the judicial Department a department under Rule 4 and the First Schedule. We shall assume that no such orders have been framed at the material time. Even so the Legal Rememberancer is the ex-officio Secretary of the Judicial 'department of the Government, and is thus the head of the department in respect of works under his charge. The works includes the manner and mode of control over litigations in courts or tribunals or matters in which the State is a party or is otherwise interested. If the rules of the Manual cover such category of subjects and have the approval aid imprint of the Legal Remembrancer, as the publication by him of the Manual on revision by the successive holders of the office indicates, there is no reason why the rules complied in the Manual should not be accepted as Statutory rules as being deemed to be framed by the official head of the department in matters under his charge under authority of the Rules of Business framed under Article 166 (3) of the Constitution. In coming to this decision, the Court as much as the Government are not bound by the interpretation of law or a conclusion on a question of law by a government Officer, as held in P.H. Avari vs. State of West Bengal 62 C.W.N. 278. Accordingly, notwithstanding the views of the Legal Remembrancer it may be possible to hold that rules of the Manual are statutory being created by the competent authority under power vested in such authority by law, though I rest my decision on the Government notification under Section 241 (1) (b) referred to above. Mr. Chatterjee further contended that the legal advisers must not be deemed to be Government servant, as the master i.e., the Government has no control over the legal advisers in discharge of their duties or to regulate the manner in which such works should the done. The legal advisers will conduct the cases entrusted to them in such manner and they deem fit and proper and there can be no command on them by the Government for conduct of the case in a particular manner nor and they obliged to obey any such command. Since control over the servant in respect of the manner of performance of his works is an essential feature of master and servant relationship, absence of such control it was contended, is indicative of the position that there can be no such relationship between the government and the legal advisers. 13. IT may be interest to refer to the decision in Union of India v Sankalchand AIR 1977 S. C. 2328, in which chandrachud, J. (as his lordship then was) observed in respect of the Judges of the High Court that their pledge of office is that : - "they shall uphold the Constitution and the laws' not the commands of the executive. Thus there is a fundamental distinction, between the master and servant relationship as is generally understood and the relationship between the Government and High Court judges. They, the Judges of he high Court, are not Government servants in the ordinary signification of that expression. " The position of the High Court judges is altogether a different concept in that, as noted in the decisions, they hold constitutional offices over which the Government has no control apart from the discharge of their duties of office even in regard to tenure and all, other incidents of service. " The position of the High Court judges is altogether a different concept in that, as noted in the decisions, they hold constitutional offices over which the Government has no control apart from the discharge of their duties of office even in regard to tenure and all, other incidents of service. Similar, by and large, is the position of the Advocate-General under Article 165 of the constitution though in regard to the tenure of office and its remuneration the provisions are otherwise which however have no material bearing in regard to the status of office. 14. IN Kanak Chandra's case the supreme Court restated the proposition that presence of all or some of the following indicia as the right of appointment, payment of remuneration the control of the method and manner of doing the work, suspension and dismissal may be indicative of the relationship of master and servant between the parties. Even if the master has no control over the method or manner of doing the work, in the context of the nature of the work an employee is required to perform, it cannot be said that there is no such relationship if any or more of other indicia be present. In case of judicial officer, or officers vested with quasi-judicial powers, the government cannot order or command judgments or order of its choice or impose its views on judgments or orders which such officers will pass according to their conscience and on appreciation of facts and law in matters before them. Even for such judicial officers regarding recruitment and other terms and conditions of service, the Government has framed rules under proviso to Article 309 of the constitution. Such rules from time to time have been the subject matter of scrutiny in High Courts as well as in the supreme Court and rules have always been accepted as being duly framed under the law governing the service of such officers. If the control of the method or manner of doing the work were the essential criteria for determining the relationship of master and servant between the Government and its employees, the judicial officers or other officers exercising quasi-judicial powers would cease to be the Government servants. But the position is so, so that it cannot be held that the existence of such control only irrespective of other indicia will establish the relationship of master and servant. But the position is so, so that it cannot be held that the existence of such control only irrespective of other indicia will establish the relationship of master and servant. The existence of some or other indicia therefore are also material to establish such relation and all will depend on the facts and circumstances of each case in the context of the existence of all or any of such indicia for establishing the such relationship of master and servant. In consequence the fact that the legal advisers conduct cases according to their wisdom and conscience without any control from the Government, when some or any other indicia referred to above are present, does not make them any other then Government servants. We are conscious that, there is an odium attached to the concept of servant who has to obey the lawful commands of his master. While this may be true in respect of servants as commonly understood, the position of the Government servants stand on a different footing. The terms and conditions of Government servants are regulated and determined by statutory rules which are as much binding on the employee as on the Government, though the Government may unilaterally alter the same under statutory authority. The relationship of the Government servant and with the Government is thus one of status created by statute and not of master and servant as understood in common parlance. 15. IT will therefore be proper and accurate to describe a Government servant in civil service and as the holder of a civil post in the Government who is governed by statutory rules of service binding on the employer as well. It was held in Inland Revenue Commissioners vs. Hambrook, 1956 (1) All. E. R 807 (10) following Attorney General for new South Wales vs. Perpetual Trustee co. (Ltd). 1955 (1) All E. R. 846 that an established civil servant is more properly described as an officer in the civil employment of the Government or as a holder of an office than as a. servant (See Halsbury's Laws of England, third Edition, Vol-25. Article 87. (Ltd). 1955 (1) All E. R. 846 that an established civil servant is more properly described as an officer in the civil employment of the Government or as a holder of an office than as a. servant (See Halsbury's Laws of England, third Edition, Vol-25. Article 87. In our Constitution in Articles 309 to 310 a Government employee have been described variously as persons, appointed to public services or posts in connection with affairs of the Union or State, members of a defence service or a civil service, or all India service or as holding civil posts, (Article 311) and such description is in tune with the modern concept of employees in the Government. The law advisers like the Standing counsel, even though they have the right and discretion to conduct their cases as they may deem fit free from government control, they are still hold. ers of public office: holding civil post in the Government under the terms provided in the rules framed for them and not Government servants in the ordinary signification of "servants". 16. THE next question that requires consideration is whether there has been any violation of the provisions of the Statutory rules in accepting a private brief against public officers, as contended by Mr. Dutt. It would appear that the answer to this question depends on a consideration as to whether the petitioner as his colleagues who were the accused persons in the criminal trial are entitled to the protection under rule 45 of the Legal Remembrancer's Manual which set of rules, as we have already seen, appear to be and have been made statutory. There can be little doubt that a public officer as holder of a civil post as here is certainly entitled to protection against prosecution with out sanction for all acts done in the discharge of his official duty. It has been held by the Supreme Court. In matajog Dobey v. H. C. Bhari, AIR 1956 S. " C. 44, as follows : - "what we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that. it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation. it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation. There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. " Several cases on the issue have been reviewed in Birendra Nath Mukherjee vs. State of West Bengal, A.I.R. 1973 cal. 94, and the position seems to be that if the offence alleged is not directly or integrally connected with official duties, there can be no protection and only when it is either within the scope and directly or integrally connected with the official duty or even in excess of it, that protection can be claimed. The same view was taken in Bhagwan prasad Srivastava vs. N. P. Mishra, air 1969 S. C. 686, and it was held that the impugned act and the official duty must be so inter-related that one could reasonably take that it was done by the accused in the performance of the official duty though possibly in excess of the needs and requirements of the situation. Of course in these cases the court was concerned with the question of sanction for criminal prosecution against a public officer under section 197 of the Code of Criminal Procedure 1898. Even so, the principles estatlished therein clearly indicate that a public officer merely because he is a public officer will not be entitled to protection for any act which is not inextricably directly and intergrally connected with the discharge of his official duty though it may be in excess of it. Coming to the case before us, the allegations are that respondent No. 5 was tortured by the accused persons and the charges against them are under the ordinary penal laws of the land, under various section of the Indian Penal code unconnected with the discharge of official duty. On the allegations it is obvious that the alleged offences could not be in the discharge of official duty and not merely in excess of it. If it was so, it could not be said that the offenders were entitled to protection in respect thereof as public officers. On the allegations it is obvious that the alleged offences could not be in the discharge of official duty and not merely in excess of it. If it was so, it could not be said that the offenders were entitled to protection in respect thereof as public officers. In such case they cease to be part of the State in respect of the alleged offences, so that as at present advised there appears to be no impediment for the law advisers of the State to conduct the case on behalf of any private party wherein these persons have been alleged as perpetrators of such crime. There is therefore no illegality on the part of Mr. Chatterjee in breach of his office duty as the Standing Counsel of the State for accepting: the brief on, behalf of respondent No. 5 against the alleged commission of offences under the penal laws of the land on the part of the accused persons which are unconnected with the discharge of official duty. It is accordingly held that: there has been no violation of the provisions of rule 45 as it now stands of the legal Remembrancer's Manual, 1971 on the part of Mr. Chatterjee as the Standing Counsel of the State. 17. THE last contention of Mr. Dutt relates to the alleged violation of the provisions of the Appropriation Act: it is provided in the West bengal Appropriation (No. 2) Act, 1977 in the schedule under Revenue account, A-General Services, (a)Organs of State Serial No. 4, Administration of Justice, that the sums provided therein should be spent in respect of services and purposes mentioned in column 2 of the schedule which is the administration of justice. In the detailed revenue account the administration of justice in serial No. 214 (XI.)includes Legal Advisers and Counsel, section 3 of the Act says that the sums authorised to be paid and applied from and out of the Consolidated Fund of west Bengal by the Act shall be appropriated for the services and purposes expressed in the Schedule in relation to the year ending on the thirty-first day of March, 1978. We have already seen that this contention would have the force if the accused persons could be said to be acting in discharge of official duty in respect of the Commission of the alleged offences, and it is nobody's case that the Standing Counsel has been remunerated by the State for acting on behalf of respondent No. 5. In fact it has been expressly stated in the affidavit filed by Mr. Chatterjee that no such remuneration has been accepted by him. There is therefore no violation of the provisions of the West Bengal Appropriation (No. 2) Act, 1977 as alleged. 18. IN the view I have taken this rule fails and it is accordingly discharged. There will be no order as to costs. I may add here that I am now expressing, as I cannot any opinion about the truth or otherwise of the allegations made by the complainant against the accused persons as such matters are exclusively in the domain of the Court of Session where the accused persons will now face the trial. Rule discharged no costs.