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2000 DIGILAW 232 (GAU)

Purnendu Bikash Dhar v. Union of India

2000-07-04

M.L.SINGHAL

body2000
Heard Mr. Purnendu Bikash Dhar, petitioner in person and Mr. KN Bhattacharjee, learned senior counsel for the Union of India, Mr. SM Chakroborty, learned counsel for the respondent No. 2. 2. The petitioner Shri Pumendu Bikash Dhar by order dated 30th July, 1999 was engaged as Senior Central Govt Standing Counsel in the Agartala Bench of the Gauhati High Court for conducting cases. The appointment was for a period of three years or until further orders whichever is earlier. The petitioner has been discharging his functions honestly, diligently as a Senior Central Govt Standing Counsel. All of a sudden by order dated 8th May, 2000, the petitioner's engagement as a Senior Central Govt Standing Counsel has been terminated with immediate effect. No reason whatsoever has been assigned or communicated to the petitioner in his termination order. Hence, the petitioner has challenged the said termination order as arbitrary, unreasonable irrational act, violative of Article 14 of the Constitution. By way of this present writ petition the petitioner has prayed e for quashing the said order. 3. Both the respondents viz Union of India and the new Senior Central Govt Standing Counsel Shri PK Dhar, have defended the petitioner's termination order. The present writ petition is not maintainable. The Government has a discretion for engaging Advocates for the panel of Govt Standing Counsel. It is a trust and confidence which place an important role for engagement of an Advocate to conduct cases on behalf of the Govt, so long as the Govt has confidence in the counsel engaged in a particular case. The appointment of the petitioner is neither public employment nor it is governed by the statutory rules. The petitioners engagement and termination as a Central Govt Standing Counsel is governed by the office memorandum No.F.26(l)/99-Judl dated 24th September, 1999 issued by the Ministry of Law, Justice and Company Affairs, Govt of India. Clause 4 where of provides that such appointment shall be for the period of three years or until further orders whichever is earlier and is terminable at any time without assigning any reason. Under the aforesaid clause 4, the petitioner's engagement has been terminated. The termination of the petitioner as Central Govt Standing Counsel is not violative of Article 14 of the Constitution of India. Under the aforesaid clause 4, the petitioner's engagement has been terminated. The termination of the petitioner as Central Govt Standing Counsel is not violative of Article 14 of the Constitution of India. It is necessary to reproduce the petitioner's engagement order dated 30th May, 1999 and the termination order dated 8th May, 2000, the relevant portions which are as under: “Government of India Ministry of Law, Justice & Company Affairs, Department of Legal Affairs, Judicial Section. ”No.F.36(18)/99-Judl, New Delhi, 30th July, 1999. ORDER The President is pleased to engage Shri Purnendu Bikash Dhar, Advocate as Senior Central Govt Standing Counsel in the Agartala Bench of Gauhati High Court for conducting the Central Govt cases (other than the cases of Income Tax and Railway Departments) and for the conduct of the cases filed against public officers while in the service of the Central Government for a period of three years or until further orders whichever is earlier with immediate effect..” “Government of India, Ministry of Law Justice & Company Affairs, Department of Legal Affairs, Judicial Section. “No.F.36( 14)/2000/CGSC-Judl. New Delhi, 8th May, 2000 ORDER The President is pleased to terminate the engagement of Shri Purnendu Bikash Dhar, Advocate as Senior Central Govt Standing Counsel in the Agartala Bench of Gauhati High Court with immediate effect...” 4. Undisputedly, the petitioner's engagement and termination as Senior Central Govt Standing Counsel is governed by Government of India office memorandum No.F.26(l)/99-Judl dated New Delhi, 24th September, 1999, the relevant clause 4 of which provides as under: “IV Term of Empanelment: Empanelment: The term of empanelment of a counsel would be for a period of three years or until further orders whichever is earlier. Termination of empanelment : The empanelment of the counsel shall be terminable at any time without assigning any reason.” 5. Learned petitioner heavily relied upon the decision of the Supreme Court in Kumari Shrilekha Vidyarthi etc vs. State of UP & others, AIR 1991 SC 537 . In paragraph 13 of the judgment relied upon by the petitioner, the Supreme Court has observed as under: “The learned Additional Advocate General contended that clause 3 of para 7.06 says that the appointment of a District Government Counsel is only professional engagement terminable at will on either side and not appointment to a post under the Government; and the Government has the power to terminate the appointment at any time 'without assigning any cause'. He contended that this power to terminate the appointment at any time without assigning any cause and the clear statement that the appointment is only professional engagement terminable at will on either side is sufficient to indicate that the relationship is the same as that of private client and his counsel. In our opinion, this provision has to be read not in isolation, but in the context in which it appears and along with the connected provisions, already referred. The expression 'professional engagement' is used therein to distinguish it from appointment to a post under the Government in the strict sense. This, however, does not necessarily mean that a person who is not a Government servant holding a post under the Government does not hold any public office and the engagement is purely private with no public element attaching to it. This part of clause 3 of para 7.06 means only this and no more. The other part of clause 3 which enables the Government to terminate the appointment 'at any time without assigning any cause' can also not be considered in the manner, suggested by the learned Additional Advocate General. The expression 'at any time' merely means that the termination may be made even during the subsistence of the term of appointment and 'without assigning any cause' means without communicating any cause to the appointee whose appointment is terminated. However, without assigning any cause is not to ^ be equated with without existence of any cause. It merely means that the reason for which the termination is made need not to be assigned or communicated to the appointee. It was held in Liberty Oil Mills vs. Union of India (1984) 3 SCC 465 : ( AIR 1984 SC 1271 ) that the expression 'without assigning any reason' implies that the decision has to be communicated, but reasons for the decision have not to be stated, but the reason must exist, otherwise, the decision would be arbitrary. The non-assigning of reasons or the non-communication thereof may be based on public policy, but termination of an appointment without the existence of any cogent reason in furtherance of the object for which the power is given would be arbitrary and, therefore, against public policy. The non-assigning of reasons or the non-communication thereof may be based on public policy, but termination of an appointment without the existence of any cogent reason in furtherance of the object for which the power is given would be arbitrary and, therefore, against public policy. Clause 3 of para 7.06 must, therefore, be understood to mean that the appointment of a District Government Counsel is not to be equated with appointment to a post under the Government in the strict sense, which does not necessarily mean that it results in denuding the office of its public character; and that the appointment may be terminated even during currency of the term by only communicating the decision of termination without communicating the reasons which led to the termination. It does not mean that the appointment is at the sweet will of the Government which can be terminated at any time, even e without the existence of any cogent reason during the subsistence of the term. The construction, suggested on behalf of the State of UP of this provision, if accepted, would amount to conceding arbitrary power of termination to the Government, which by itself is sufficient to reject the contention and thereby save it from any attack to its validity.” 6. On the strength of the judgment of the Supreme Court in Shrilekha Vidyarthi's case (supra), the learned petitioner urged that the office of the Govt counsel involves an element attached to public office and it is not open to the Govt to terminate the appointment without assigning any reason, may the reasons be not communicated to the appointee. Some cogent reasons must exists on the record which have pleaded to the termination order, otherwise, the termination of Govt counsel without assigning any reason is arbitrary, irrational and open to challenge. Learned petitioner further placed reliance upon the decision of the Supreme Court in Liberty Oil Mills & others vs. Union of India & others, AIR, 1984 SC 1271, referred in Shrilekha Vidyarthi's case (supra) wherein the Supreme Court has observed that expression without assigning any reason implies that the decision has to be communicated, but reasons for the fa decision have not to be stated, reasons must exist, otherwise the decision would be arbitrary. In the said case the Supreme Court has held as under: (vide para 22) “The next question for consideration is whether the decision to keep in 'abeyance' should be communicated to the person concerned. There can be no two opinions on this. Ours is a Constitutional Government, an open democracy founded upon the rule of law and riot a cloak and danger regimen. It is inconceivable that under our constitutional scheme a decision of the kind contemplated by clause 8B which may have the effect of bringing to a standstill the entire business activity of the person affected and which may even spell ruin to him, should be made and implemented without being communicated to that person. Intertwined is the question of observance of natural justice and how can natural justice be satisfied if the decision is not even communicated ? It would be most arbitrary and quite clearly violative of Articles 14 and 19 (i) (g) of the Constitution if clause 8B is to be interpreted as excluding communication of the decision taken. There is nothing in clause 8B to suggest that the decision is not to be communicated. On the other hand, the expression 'without assigning any reason' implies that the decision has to be communicated, but reasons for the decision have not to be stated. Reasons of course, must exist for the decision since the decision' may only be taken if the authority is satisfied that the grant of licence or allotment of imported goods will not be in the public interest. We must make it clear that' without assigning reasons' only means that there is no obligation to formulate reasons and nothing more. Formal reasons may lead to complications when the matter is still under investigation. So the authority may not give formal reasons, but the skeletal allegations must be mentioned in order to provide an opportunity to the person affected to make his representation. Chapter and verse need not be quoted. Details may not be mentioned and an outline of the allegations should be sufficient.” 7. So the authority may not give formal reasons, but the skeletal allegations must be mentioned in order to provide an opportunity to the person affected to make his representation. Chapter and verse need not be quoted. Details may not be mentioned and an outline of the allegations should be sufficient.” 7. On the contrary, learned counsel for the respondents relied upon latter decision of the Supreme Court in State of UP & others vs. UP State Law Officers Association & others, AIR 1994 SC 1654 wherein Shrilekha Vidyarthi's (supra) has been distinguished and it has been held by the Supreme Court that where no guidelines were provided for appointment of Law Officers engaged by the State Govt and the appointments may be made on consideration other than merits. Order of appointment stipulating that appointment was terminable at any time without assigning any reason, termination of appointment without reasons is not arbitrary. Shrilekha Vidyarthi's case (supra) related to the appointment/termination of District Govt counsel in the State of UP where procedure for appointment has been laid down in the UP Govt Legal Remembrancer's Manual. Under the provisions of the Manual applications are invited by the District Magistrate. The appointment by the Govt on the recommendations of the District Judge, District Magistrate on merits. In respect of appointment of Standing Counsel in the High Court, no procedure/guidelines have been laid down. So, the law laid down by the Supreme Court in Shrilekha Vidyarthi's case (supra) will not apply in the instant case. Further the relationship between the Govt and its engaged lawyer is of public trust, the engagement can be terminated at any time. In paragraph 6 of the judgment the Supreme Court has held as under : “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, layering became a full time occupation and a 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. With the growth of litigation, layering became a full time occupation and a 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, d 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 advisor 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 sides. He has to be fair to ensure that justice is done. 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 sides. He has to be fair to ensure that justice is done. He demeans himself if he acts merely as a mouth piece 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 section 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 in his primary duty. The public bodies are, therefore, under an obligation to the society to take the best possible steps to safeguard its interest. This obligation imposes on them the duty to engage the most competent servants, agents, advisors, spokesman 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 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 mood of such selection. But sometimes the best may not compete or a competent candidates may not be available from among the competitors. An open invitation to the lawyers to compete for the posts is by far the best mood of such selection. But sometimes the best may not compete or a competent candidates may not be available from among the competitors. In such circumstances, the public bodies may resort to other method 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 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. 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 contract may be the product of operational of the spoils system. There need be no legal anxiety to save them. As the facts narrated earlier show, out of 26 respondent-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 any reason. The reliance placed by the respondents in this behalf on Kumari Shrilekha Vidyarthi vs. State of UP (1991) 1 SCC 212 : ( AIR 1991 SC 537 ) is misplaced for the obvious reason that the decision related to the appointment of the District Government counsel and the Additional/Assistant District Government counsel who are the Law Officers appointed by the State a 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. 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 District Judge is required to maintain a character roll and 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 short coming in the work are required to be brought to the notice of the Legal Remembrancer. It will thus be seen that the appointment of two sets of officers viz. the Government counsel in the High Court with whose 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 e 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 in discharged 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 merit and after screening at different levels, the termination of their services is not consistent with the public interests.” 8. What is further, since the appointment of District Government Counsel is made strictly on the basis of comparative merit and after screening at different levels, the termination of their services is not consistent with the public interests.” 8. The judgment of the Supreme Court in State of UP vs. UP State Law Officers Association & others (supra), extracted in extenso above is a complete answer to the various contentions raised by the petitioner. The engagement of the petitioner not being by opening competition, the element of public interest may not be involved therein. The decision of the Supreme Court earlier in Shrikkha VidyarthPs case (supra) does not apply to the appointment of Standing Counsel in the High Court, the Supreme Court in State of UP & others vs. UP State Law Officers Association (supra) has itself distinguished it and had held it inapplicable in the case of appointment of Law Officers in the High Court. The engagement of the petitioner has been terminated under clause IV of the Govt of India of its memorandum No.R36(14)/ 2000/CGSC-Judl, the respondents are fully empowered to do so in terms of the aforesaid memorandum. The learned petitioner argued that the reasons for petitioner's termination may not be communicated to him, but there must be some reason in the record as laid down by the Supreme Court in Liberty Oil Mills vs. Union of India (supra), the said decision the learned petitioner urged is still applicable in the instant case. About the contention of the learned petitioner, it may pointed out that the decision of the Supreme Court in Liberty Oil Mills vs. Union of India (supra) was on different facts and in different context has no application in the instant case, in view of the subsequent decision of the Supreme Court in State of UP & others vs. UP State Law Association (supra). 9. Learned petitioner further argued that he was engaged for a period of 3 years, his engagement has been terminated only after a period of 8 months, the act of the respondents is unreasonable, arbitrary and as such is open of the judicial review. 9. Learned petitioner further argued that he was engaged for a period of 3 years, his engagement has been terminated only after a period of 8 months, the act of the respondents is unreasonable, arbitrary and as such is open of the judicial review. The learned petitioner relied upon the decision of this Court in (1996) 1 GLR 177 (Tulshi Kumar Dutta, M/s K&K Traders vs. North Eastern Coal Fields & others) (1996 (1) GLJ 253); (1996) 3 GLR 155 (Saingura Sailo vs. State of Mizoram & others) (1996 (2) GLJ 153); (1992) 2 GLR 313 (Miss Papari Bharali, Shri Anup Kumar Sharma, Sri Nipon Kumar Sarma, Guwahati Medical College Students' Union vs. State of Assam & others) (1993 (1) GLJ 88); (1992) 2 GLR 342 (M/s Warren Tea Ltd & another vs. State of Assam & others) (1992 (2) GLJ 167) ; of Supreme Court in Indra Sawhney vs. Union of India & others, (2000) 1 SCC 168 , (para 87); (2000) 2 SCC 465 (Chairman, Railway Board & others vs. (Mrs) Chandrima Das & others) (para 9); (2000) 1 SCC 644 (Sub Inspector Rooplal & another vs. Lt. Governor through Chief Secretary, Delhi & others); AIR 1997 SC 3387 (Union of India & another vs. Ganayutham (dead) by LRs, and AIR 1979 SC 1871 (Manindra Prasad Sinha vs. State of Bihar), All these decisions are in different context and in view of the clear law laid down by the Supreme Court in State of UP vs. UP State Law Officers Association & others (supra), have no application in the instant case. 10. The writ petition has no force and, accordingly, fails. The writ petition is dismissed. Cost on parties.