Urmila Tiwary v. State of U. P — 1981 DIGILAW 1104 (ALL)

JUDGMENT K.C. Varma, J. - The petitioner is an Advocate practising in Lucknow On 10th April, 1972 the State Government sanctioned the post of Assistant District Government Counsel (Civil) for District Court in Lucknow. In pursuance of the notification sanctioning the said post, the State Government issued a notification inviting application for the post of Assistant District Government Counsel (Civil), Lucknow. A copy of the notification is Annexure 1 to the writ petition On 3-10-1977 the petitioner applied for the post and in the month of January, 1978, the petitioner was appointed an Assistant District Government Counsel (Civil) in Lucknow. On 3 - 1 1978 petitioner took charge of the post. The appointment was on probation for a period of one year On 12-1-1979 after the expiry of the probationary period, the petitioner was appointed to the said post for a period of three years with effect from 3-1-1979. On 25 - x 1979 after the expiry of four months, the petitioners appointment was terminated by Government Order dated 25-5-1979. The order of termination is Annexure 3 to the writ petition. The order of termination dated 25-5-1979, Annexure 3 was challenged by the petitioner by filing a claim against the State Government under the U.P. Public Service Tribunal Act, 1976. Before the Tribunal, a preliminary objection was raised on behalf of the State that the petitioner was not to Government servant within the meaning of U - P. Public Services Tribunal Act, 1976 as she was not in the service or pay of the State Government. The Public Services Tribunal by order dated 9-7-1979, Annexure IV, held that since the petitioner was not a public servant within the meaning of U.P. Public Services Tribunal Act, 1976 the claim petition was not maintainable and on this finding being recorded, the claim petition was dismissed. The petitioner aggrieved by the order of the Tribunal has come up to this court by means of the present petition and it has been prayed that the order of termination dated 25-5-1979, Annexure 3 to the petition, be quashed by the issue of a writ of certiorari. During the course of the arguments it was also prayed that the order of the Tribunal, Annexure 4 to the petition, be also quashed. 2. During the course of the arguments it was also prayed that the order of the Tribunal, Annexure 4 to the petition, be also quashed. 2. It is not disputed between the parties that the appointment of the petitioner to the said post was made under Chapter VII of the Legal Remembrancer's Manual, 1975 Edition (hereinafter to be referred to as the Manual) It is also not disputed between the parties that the Manual has no statutory force and it is a compilation of Government orders and instructions for the conduct of legal affairs by the State Government. It is also not disputed that the present case is governed by the provisions of the Manual. 3 In order to appreciate the controversy between the parties it would be appropriate to quote Section 2 (b) of the U.P. Public Services Tribunals Act, 1976 which defines a Government servant as follows :- "(b) "public servant" means every person - (i) in the service or pay of the State Government, or remunerated by fees or commission for the purpose of any public duty by the State Government ; or (ii) ............................ " Paragraph 1 and 2 of the Manual provides that the District Government Counsel includes an Additional or Assistant District Government Counsel, and except in respect of criminal work, a subordinate District Government Counsel. Paragraph 7 0 i of the Manual provides that the District Government Counsel are legal practitioners appointed by the State Government to conduct cases 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 by the Government. Paragraph 7 02 (2) of the Manual also provides that the Government may also, wherever, necessary in the interest of efficient and expeditious disposal of business, appoint an Assistant District Government Counsel to assist the District Government Counsel (Civil) in the discharge of his duties Paragraph 7 03 of the Manual provides for the qualifications of District Government Counsel and the Assistant District Government Counsel. The members of the Bar eligible for consideration for the post of Assistant District Government Counsel are those who have at their credit a practice of seven years and the eligible persons may apply for the post when the applications are invited Paragraph 7 06 of the Manual relates to appointment and renewal of the District Government Counsel and the Assistant District Government Counsel. The said paragraph is quoted below "706 Appointment and renewal. - (1) The legal practitioner finally selected by the Government may be appointed District Government Counsel for one year from the date of his taking over charge.............. (2) ................ (3) The appointment of any legal practitioner as a District Government Counsel is only professional engagement terminable at will on either side and is not 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 cause ". 4. A perusal of the above paragraph indicates that the appointment of the Assistant 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. Although a person may be appointed a District Government Counsel for three years, the Government reserves the power to terminate the appointment at any time without assigning any cause. Under paragraph 7 07, the District Government Counsel is required not to participate in political activities so long as they work as such. Paragraph 7 24 of the Manual provides for payment of fees payable to the District Government Counsel. It is contended by Mr. K. B. Sinha, learned counsel for the petitioner that the petitioner is a Government servant within the meaning of U. P Public Service Tribunal Act and the Tribunal committed a manifest error of law in not entertaining the claim of the petitioner. It is further contended that although the petitioners appointment was terminable at any time without assigning any cause, it was incumbent on the State Government to have indicated reasons for termination, more so when four months prior to the termination, the petitioner on completing the probationary period was appointed for a period of three years. It is further contended that although the petitioners appointment was terminable at any time without assigning any cause, it was incumbent on the State Government to have indicated reasons for termination, more so when four months prior to the termination, the petitioner on completing the probationary period was appointed for a period of three years. According to the learned counsel for the petitioner the abrupt termination of the petitioner on the part of the State Government smacks of arbitrariness and if the order of the State Government is arbitrary, it deserves to be quashed by appropriate writ or direction under Article 226 of the Constitution of India. 5. On behalf of the State it has been contended by Mr. B. M. N. Kacher, the Chief Standing Counsel that having regard to the provisions of the Manual, relationship of master and servant is not created between the petitioner and the State, and hence the order of the Public Services Tribunal holding that the petitioner is not a public servant is correct. He, however, also contended that in view of the fact that paragraph 7 06 of the Manual itself provides that the appointment is terminable at any time without showing any cause and further in view of the fact that the petitioner accepted appointment on those conditions it is not legitimate for the petitioner to contend that the appointment could not be terminated otherwise than by giving reasons for termination. 6. In the State of Uttar Pradesh v. Sri Bhola Nath Srivastava and others, (AIR 1972 Allahabad, 460), the appointment of certain law officers appointed by the State Government for conducting cases in the High Court was challenged. In the said decision it was held that Law Officers appointed to conduct cases on behalf of the State Government in the High Court were holders of an office and for holding such an office, it is not necessary that there is relationship of master and servant. The Division Bench deciding the case held that although the Government Advocate and the Deputy Government Advocate were holders of an office, they continued to be members of the legal profession and the relationship between them and the State was essentially that of a counsel and a client. The Division Bench deciding the case held that although the Government Advocate and the Deputy Government Advocate were holders of an office, they continued to be members of the legal profession and the relationship between them and the State was essentially that of a counsel and a client. The principle enunciated in this decision is an authority for the proposition that although an Advocate after he is appointed a District Government Counsel becomes the holder of an office, he cannot be treated as a Government servant as there is no relationship of master and servant between the parties. It is true that the Division Bench decision relates to appointment of Advocates for conducting cases in the High Court but in principle there appears to no difference between the case of Advocate appointed by the State Government for conducting cases in the High Court and Advocates appointed in the District Courts - for conducting cases on behalf of the State Government in the District in so far as the relationship between the State Government and the petitioner is concerned. In both the cases there is no relationship of master and servant and as observed by the Division Bench relationship which is created is that of a counsel and the client. 7. Mr. K. B. Sinha strenuously contended that once it is held that the petitioner is the holder of an office, the relationship of master and servant will exist between the State and the petitioner. In view of the Division Bench decision rendered by this court in State of Uttar Pradesh v. Sri Bhola Nath Srivastava and others (Supra), it is not possible to agree with this contention. The Division Bench has clearly held that the engagement of the petitioner by the State Government for looking after the cases in District Courts creates relationship only that of counsel and the client. In this case, there is no difference between an Advocate appointed to conduct cases in the High Court and an Advocate appointed to conduct cases in the District Courts. In either case, in view of the principles discussed and stated by the Division Bench, the relationship of counsel and client exists when the State appoints an Advocate to conduct its cases on its behalf. In either case, in view of the principles discussed and stated by the Division Bench, the relationship of counsel and client exists when the State appoints an Advocate to conduct its cases on its behalf. The line of reasoning adopted by the Division Bench finds ample support from the decision of the Supreme Court in Guru Gobinda Basu v. Sankari Prasad Ghosal, AIR 1964 SC, 254. The relevant portion is quoted as follows :- "We agree with the High Court that for holding an office of profit under the Government, one need not be in the service of the Government and there need be no relationship of master and servant between them." On a consideration of the relevant provisions of the Manual it appears to be clear that the relationship of master and servant is not created between the petitioner and the State Government. It is another matter that the petitioner is the holder of an office but this is far from saying that the petitioner is a public servant. For the reasons stated above, ant of the view that the order passed by the Public Services Tribunal that the petitioner is not a public servant within the meaning of the U.P. Public Services Tribunal Act does not suffer from any error of law apparent on the face of the record. 8. It was next contended by Mr. K.B. Sinha that even if the petitioner is not a Public Servant and is the holder of an office, the principles of fair play and natural justice demand that before terminating the petitioners appointment reasons should have been given by the State Government for taking this step Mr. K.B. Sinha elaborates his submission by submitting that it is curious that the petitioner after completing the probationary period was found fit for appointment for a period of three years and was actually appointed for the said period but after four months his appointment was abruptly terminated without any ostensible reason. The contention of the learned counsel for the petitioner is that this abrupt termination of petitioners appointment calls for an explanation from the State Government as to why the appointment of the petitioner was terminated so unceremoniously. The contention of the learned counsel for the petitioner is that this abrupt termination of petitioners appointment calls for an explanation from the State Government as to why the appointment of the petitioner was terminated so unceremoniously. I have given my anxious consideration to this aspect of the arguments but it is difficult to accept the submission as the petitioner accepted the appointment on the condition that it was terminable without assigning any cause The language of paragraph 7 06 (3) of the Manual clearly provides for the termination of the appointment without assigning any cause. The petitioner accepted the appointment on this condition and once it is held that the appointment is subject to this condition, it is not possible to agree with the contention of the petitioner that reasons for termination are required to be stated. It is true that such an abrupt termination of the petitioners appointment was not proper and cannot be approved but this court is not in a position to help the aggrieved person like the petitioner who with eyes open accepted the appointment which was terminable at the sweet will of the State Government without assigning any reasons. Mr. Sinha relied upon a large number of cases for establishing the desirability of stating reasons in cases of this nature but it is unnecessary to advert to them in view of the clear language of paragraph 7 06 (3) of the Manual. 9. It was contended on behalf of the petitioner that the order terminating the petitioners appointment was mala fide and was motivated by political considerations. In paragraphs 11 to 15 of the petition, the petitioner has submitted that she belonged to Janta Party and has Bhartiya Jan Sangh leanings, with the fall of the Janta Government and with the advent of the new regime the petitioners appointment was terminated on account of political motivations and this, according to the petitioner, is proved from public utterances and the statements issued by the members of the present Ministry from time to time. In my opinion, the allegation is absolutely vague and cannot be countenanced. The petitioner has failed to place before this court any material from which an inference may be drawn that the action of the State Government was politically motivated. In my opinion, the allegation is absolutely vague and cannot be countenanced. The petitioner has failed to place before this court any material from which an inference may be drawn that the action of the State Government was politically motivated. The bald assertions contained in paragraphs 13 to 15 of the petition are insufficient to make out a case of mala fides on the part of the State Government. 10. For the reasons stated above, I am of the view that there is no merit in this writ petition. It is, accordingly, dismissed but in the circumstances of the case, the costs of this court shall be borne by the parties.