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2007 DIGILAW 139 (KAR)

Hanumantha Rao Kulkarni v. The State of Karnataka

2007-02-27

B.S.PATIL, CYRIAC JOSEPH

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JUDGMENT Cyriac Joseph, J. (Oral) 1. The appellant is the petitioner in Writ Petition No. 11230/2006 which was dismissed by the learned Single Judge. 2. The appellant was appointed as Additional Government Pleader at Yadgiri in Gulbarga District vide Annexure-’A’ notification dated 15.9.2001. The said appointment was for a period of three years from the date of Annexure-’A’ notification or until further orders whichever was earlier. Thereafter, vide Annexure-’B’ notification dated 20.1.2005, the appointment of the appellant was extended for a further period of three years from 15.92004 or until further orders whichever was earlier. Admittedly, Annexures - ‘A’ and ‘B’ notifications were issued under the Karnataka Law Officers (Appointment and Conditions of Service) Rules, 1977 (for short the Rules). It is clear from Annexure - ‘B’ notification that the appointment was not a fresh appointment under Rule 26 of the Rules and that it was only an extension of the period of appointment already given under Annexure - ‘A’ notification. 3. According to Rule 5(3) of the Rules, subject to the other provisions contained in the Rules, unless otherwise ordered in the order of appointment, a person appointed as a Law Officer shall hold office at a time, for a term not exceeding three years, but shall be eligible for re-appointment after the expiry of such term. As per the proviso to the said Rule 5(3), notwithstanding the expiry of the term a Law Officer shall, unless otherwise ordered, continue in office until fresh appointment is made or for a period of 12 months whichever is earlier. 4. In terms of Annexure-’B’ notification, the Government had the power to terminate the appointment of the appellant at any time even before completing the period of three years mentioned in Annexure-’B’ notification. According to Rule 5(2) of the Rules, all Law Officers shall be appointed by the Government and shall hold office during the pleasure of the Government. Since the Law Officer holds office during the pleasure of the Government, the Government is free to terminate the appointment of a Law Officer at any time if the Government decides to dispense with the services of the Law Officer. Rule 5(6) also provides that the State Government may terminate the appointment of a Law Officer without assigning any reason by giving one month’s notice in writing or by giving one month’s retainer fee in lieu of such notice. Rule 5(6) also provides that the State Government may terminate the appointment of a Law Officer without assigning any reason by giving one month’s notice in writing or by giving one month’s retainer fee in lieu of such notice. Invoking the said power under Rule 5(2) and Rule 5(6), the Government issued Annexure-’C’ notification dated 28.7.2006 terminating the appointment and appointing the second respondent as Additional Government Pleader in the place of the appellant. The appointment of the second respondent is said to be under Rule 26(3) and the period of appointment is one year from the date of taking charge or until further orders whichever is earlier. According to Rule 26(3), the Government may in cases of urgency appoint in consultation with the concerned District Judge any Advocate as District Government pleader or Additional District Government Pleader for a period not exceeding one year. 5. The appellant filed the Writ petition challenging Annexure-’C’ notification. However, the learned Single Judge dismissed the Writ Petition holding that there was no merit in the writ Petition. Even though the Writ petitioner placed reliance on the decision of the Supreme Court in KUMARI SHRILEKHA VIDYARTHI AND OTHERS VS. STATE OF U.P. AND OTHERS [ (1991) 1 SCC 212 )], the learned Single Judge held that the petitioner is not similarly placed as a Law Officer of the State of U.P. and hence the ratio of the decision in SHRILEKHA VIDYARTHI’s case does not apply to his case. Aggrieved by the dismissal of the Writ Petition, this Writ Appeal has been filed. 6. As far as termination of appointment of the appellant is concerned, we are of the view that the appellant can continue to hold office only during the pleasure of the Government and that if the Government decides to dispense with his services, he cannot impose his services on the Government and this Court cannot compel the Government to avail of his services also. Annexure-’B’ notification permitted the termination of the appointment of the appellant even before the expiry of the period of three years and therefore, the termination of the appointment of the appellant is in conformity with the terms of the appointment order Annexure-’B’. Hence the appellant cannot question the termination of his appointment and he is liable to quit office pursuant to Annexure-’C’ notification. Hence the appellant cannot question the termination of his appointment and he is liable to quit office pursuant to Annexure-’C’ notification. Rule 5(6) of the Rules empowers the Government to terminate the appointment of a Law Officer without assigning any reason by giving one month’s notice in writing or by giving one month’s retainer fee in lieu of such notice. While issuing Annexure - ‘C’ notification terminating the appointment of the appellant, it was directed to pay one month’s additional retainer’s fee to the appellant in terms of Rule 5(6). Thus the impugned termination of the appointment of the appellant was strictly in accordance with Rule 5(6) of the Rules. Therefore, the challenge against the termination of the appointment of the appellant was liable to be rejected and in our view the learned Single Judge rightly distinguished the case of the appellant from Shrilekha Vidyarthi’s case. 7. However, even though the petitioner had raised the contention in the writ petition that the appointment of the second respondent is in violation of the Karnataka Law Officers (Appointment & Conditions of Service) Rules, 1977, it was not considered by the learned Single Judge in the impugned judgment. The petitioner had contended that the appointment of the second respondent was stated to be under Rule 26(3) of the Rules but the appointment was made in violation of the provisions contained in Rule 26(3) inasmuch as the appointment was made without consulting the District Judge. Rule 26(3) reads thus. “Notwithstanding anything contained in sub-rule-2, but subject to other provisions of these rules, the Government may in cases of urgency appoint in consultation with the concerned District Judge, any Advocate as District Government Pleader or Additional District Government Pleader for a period not exceeding one year”. To consider the above contention, we directed the learned Government Advocate to examine the relevant files and submit whether there was any consultation with the District Judge before appointing the second respondent. After examining the files, learned Government Advocate submitted that there was no such consultation. Learned Counsel for the second respondent also did not state that the appointment of the second respondent was made after consulting the District Judge. Thus it is not disputed that the appointment of the second respondent was not in consultation with the concerned District Judge as required under Rule 26(3) of the Rules. Learned Counsel for the second respondent also did not state that the appointment of the second respondent was made after consulting the District Judge. Thus it is not disputed that the appointment of the second respondent was not in consultation with the concerned District Judge as required under Rule 26(3) of the Rules. In our view, having regard to the scheme of the Karnataka Law Officers (Appointment & Conditions of Service) Rules, 1977 and to the duties and functions of the District Government Pleader and the Additional District Government Pleader, the requirement of consultation with the concerned District Judge has to be held as mandatory. It is to be noted that even for making regular appointment, Rule 26(2) requires that the Deputy Commissioner shall invite applications from eligible practising Advocates of the place, for the post of District Government Pleaders Additional District Government Pleaders and Assistant Government Pleaders specifying the date before which such application should be made and forward the applications so received to the District judge along with his remarks about their suitability for appointment to the concerned post and on receipt of the same, the District Judge shall forward them to the Government in the Department of Law and Parliamentary Affairs appending his remarks regarding the suitability of each of them for the concerned post and the Government shall thereafter make the appointments having regard to the remarks of the District Judge and the Deputy Commissioner. The requirements under Rule 26(2) emphasise and underscore the need for consultation with the District Judge before making the appointment of a District Government Pleader or Additional District Government Pleader. If any appointment of a District Government Pleader or Additional District Government Pleader is made without such a consultation, the appointment is defective and violative of the statutory provisions and therefore, the appointment is liable to be quashed. It is also relevant to mention that according to Rule 5(1) (ii) of the Rules, no person shall be eligible for appointment as a District Government Pleader, or as on Additional Government Pleader unless he has been in practice as an Advocate for not less than ten years. The law makers rightly considered that the district Judge is the best person to certify about the nature and extent of the practice of an Advocate as well as his suitability for appointment as a District Government Pleader or Additional Government Pleader. The law makers rightly considered that the district Judge is the best person to certify about the nature and extent of the practice of an Advocate as well as his suitability for appointment as a District Government Pleader or Additional Government Pleader. It is true that what is required under Rule 26(3) is consultation with the District Judge’ and that the opinion of the District Judge is not stated to be binding on the Government. But the Government is bound to consider the remarks of the District Judge. The Government cannot dispense with the consultation itself, In such circumstances, the appointment of the second respondent is liable to be set aside. 8. Learned Government Advocate submitted that even though there was no prior consultation with the District Judge, there was a post-consultation and the District Judge has opined that the second respondent is suitable for appointment. But the post-consultation cannot validate the invalid appointment of the second respondent. When the Rule requires prior consultation with the District Judge, the Government cannot make appointment without consultation and later resort to post-consultation. Therefore, we are not inclined to save the appointment of the second respondent on the ground that there was a post-consultation in which the District Judge is stated to have opined that the second respondent is suitable for appointment. 9. In the above circumstances, the Writ Appeal is disposed of in the following terms: (i) The order of the learned Single Judge is upheld to the extent it rejected the challenge against the termination of the appointment of the petitioner. (ii) The Writ Petition is partly allowed and Annexure-‘C’ order is quashed to the extent it appointed the second respondent as Additional Government Pleader. (iii) We make it clear that this judgment will not stand in the way of the Government appointing the second respondent as Additional Government Pleader strictly in accordance with the Rules.