V. Veerasamy v. The Government of Tamil Nadu rep. by its Secretary to Government & Another
2008-08-25
K.K.SASIDHARAN
body2008
DigiLaw.ai
Judgment :- This writ petition is directed against the proceedings dated 31.08.2000 on the file of the first respondent as well as the proceedings dated 21.09.2000 on the file of the second respondent, whereby, the service of the petitioner as Additional Government Pleader at Dharmapuri was terminated. 2. The factual matrix necessary for the disposal of the writ petition are as under Cause of action (a) The petitioner is a practicing lawyer at Dharmapuri and he was appointed as Additional Government Pleader in the District of Dharmapuri as per proceedings dated 011. 1996. The period of appointment prescribed was for a term of three years. Subsequently, on 210. 1999, the appointment was renewed until further orders. Accordingly, the petitioner has been discharging his duties to the best of his ability. A total number of 1204 cases were pending with the office of the Government Pleader at Dharmapuri and the petitioner took earnest efforts in scrutinizing the papers and conducting the matter effectively and as such, about 744 cases were disposed of during his tenure. (b) While so, the District Collector as per report dated 23.07.2000 informed the Government that there was revenue loss to the Government on account of the conduct of land acquisition cases. Ultimately, the service of the petitioner was terminated as per the impugned order even without settling his fees and aggrieved by the said proceeding, the petitioner has come up with the writ petition. Nil defence:- .3. Even though the writ petition was admitted and rule nisi was ordered as early as on 010. 2000, the respondents have not filed counter affidavit in answer to the contentions raised in the writ petition. .Impugned Order 4. It is found from the impugned order dated 31.08.2000 that the service of the petitioner as Additional Government Pleader was terminated with effect from the date of service of the said order. Subsequently, as per order dated 21.09.2000, the petitioner was paid his retainer fee of Rs.1,000 and he was directed to hand over charge to the new Government Pleader appointed in his place and report the same to the first respondent. .5. It is trite that the Government like any other litigant is entitled to appoint its own counsel to represent the Government before the Courts and tribunals.
.5. It is trite that the Government like any other litigant is entitled to appoint its own counsel to represent the Government before the Courts and tribunals. Section 2(7) of the Code of Civil Procedure gives an inclusive definition to the term "Government Pleader” and as per the said definition, Government Pleader includes any officer appointed by the State Government to perform all or any of the functions express if imposed by the Code of Civil Procedure on the Government Pleader and also any pleader acting under the directions of the Government Pleader. .Nature of appointment .6. Appointment of the Government Pleader being at the pleasure of the concerned Government, it is not possible for the Government Pleader so appointed to contend for the position that the Government has no jurisdiction to terminate his appointment. The Government is also a litigant like any other litigant. It is within their jurisdiction to appoint a person of their choice as their counsel. Nobody has got a right to say that he should be appointed as Government Pleader or in case of such appointment as Government Pleader, to continue in office even after the termination of appointment or after the expiry of the term. The very nature of the office is such that the Government Pleader continues so long as the Government have confidence in him. Even though the Government Pleader has no right to continue in office even after his termination, the Government is not expected to send them unceremoniously and with a stigma. .Noble profession;- 7. Legal profession is considered to be a very noble profession, requiring maintenance of high standard of professional ethics and the lawyer should be vigilant to uphold the dignity of profession. The regulations framed by the Bar Council of India prohibits soliciting work and the said principle equally applies to a Government Pleader and as such, Government Pleader is not entitled to continue in office in spite of the decision taken by the Government to terminate his appointment. .8. Entrustment of a brief with a lawyer is nothing but an engagement and it is upto the client to engage a lawyer of his or her choice. The same is the position with the Government also and the Government is entitled to appoint a counsel of their choice to conduct the Government litigation before the Courts/Tribunals.
.8. Entrustment of a brief with a lawyer is nothing but an engagement and it is upto the client to engage a lawyer of his or her choice. The same is the position with the Government also and the Government is entitled to appoint a counsel of their choice to conduct the Government litigation before the Courts/Tribunals. The appointment of Government Pleader is only for a fixed term, to be renewed from time to time at the option of the concerned Government. It is not an appointment to a particular post under the State or Central Government and the appointment is also at the pleasure of the concerned Government. .9. The appointment of Government Pleader being an engagement, there is no right of renewal inherent in such appointment. It is upto the Government to decide as to whether they should renew the appointment of a Government Pleader and no writ of mandamus could be issued to the Government to renew such appointment. However, the State is also expected to be fair in their dealings with the Government Pleaders. .Legal Position 10. In the State of State of U.P. v. Johri Mal [JT 2004 Sppl. SCC 443: (2004) 4 SCC 714 ) the Apex Court considered the appointment of public prosecutor within the meaning of Sec.24 of Cr.P.C. and held thus : Government as a Client/Litigant "40. So long as in appointing a counsel the procedures laid down under the Code of Criminal Procedure are followed and a reasonable or fair procedure is adopted, the court will normally not interfere with the decision. The nature of the office held by a lawyer vis-a-vis the State being in the nature of professional engagements, the courts are normally chary to overturn any decision unless an exceptional case is made out. The question as to whether the State is satisfied with the performance of its counsel or not is primarily a matter between it and the counsel. The Code of Criminal Procedure does not speak of renewal or extension of tenure. The extension of tenure of Public Prosecutor or the District Counsel should not be compared with the right of renewal under a licence or permit granted under a statute. The incumbent has no legal enforceable right as such.
The Code of Criminal Procedure does not speak of renewal or extension of tenure. The extension of tenure of Public Prosecutor or the District Counsel should not be compared with the right of renewal under a licence or permit granted under a statute. The incumbent has no legal enforceable right as such. The action of the State in not renewing the tenure can be subjected to judicial scrutiny inter alia on the ground that the same is arbitrary. The courts normally would not delve into the records with a view to ascertain as to what impelled the State not to renew the tenure of a Public Prosecutor or a District Counsel. The jurisdiction of the courts in a case of this nature would be to invoke the doctrine of "Wednesbury unreasonableness" as developed in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn [1947 (2) All ER 640. 43. The State, however, while appointing a counsel must take into account the following fundamental principles which are required to be observed that good and competent lawyers are required to be appointed for: (i) good administration of justice; (ii) to fulfill its duty to uphold the rule of law; (Hi) its accountability to, the public; and (iv) expenditure from the taxpayers money. 44. Only when good and competent counsel are appointed by the State, the public interest would be safeguarded. The State while appointing the Public Prosecutors must bear in mind that for the purpose of upholding the rule of law, good administration of justice is imperative which in turn would have a direct impact on sustenance of democracy. No appointment of Public Prosecutors or District Counsel should, thus, be made either for pursuing a political purpose or for giving some undue advantage to a section of the people. Retention of its counsel by the State must be weighed on the scale of public interest. The State should replace an efficient, honest and competent lawyer, inter alia, when it is in a position to appoint a more competent lawyer. In such an event, even a good performance by a lawyer may not be of much importance. 71. The District Government Counsel appointed for conducting civil as also criminal cases hold offices of great importance. They are not only officers of the court but also the representatives of the State. The court reposes a great deal of confidence in them.
In such an event, even a good performance by a lawyer may not be of much importance. 71. The District Government Counsel appointed for conducting civil as also criminal cases hold offices of great importance. They are not only officers of the court but also the representatives of the State. The court reposes a great deal of confidence in them. Their opinion in a matter carries great weight. They are supposed to render independent, fearless and non-partisan views before the court irrespective of the result of litigation which may ensue. 72. The Public Prosecutors have greater responsibility. They are required to perform statutory duties independently having regard to various provisions contained in the Code of Criminal Procedure and in particular Section 328 thereof. 73.... 74. The District Government Counsel represent the State. They, thus, represent the interest of the general public before a court of law. The Public Prosecutors while presenting the prosecution case have a duty to see that, innocent persons may not be convicted as well as an accused guilty of commission of crime does not go unpunished. Maintenance of law and order in the society and, thus, to some extent maintenance of rule of law which is the basic fibre for upholding the rule of democracy lies in their hands. The Government Counsel, thus, must have character, competence, sufficient experience as also standing at the Bar. The need for employing meritorious and competent persons to keep the standard of the high offices cannot be minimised. The holders of the post have a public duty to perform. Public element is, thus, involved therein. 75. In the matter of engagement of a District Government Counsel, however, a concept of public office does not come into play. However, it is true that in the matter of counsel, the choice is that of the Government and none can claim a right to be appointed. That must necessarily be so because it is a position of great trust and confidence. The provision of Article 14, however, will be attracted to a limited extent as the functionaries named in the Code of Criminal Procedure are public functionaries. They also have a public duty to perform. If the State fails to discharge its public duty or acts in defiance, deviation and departure of the principles of law, the court may if interfere.
The provision of Article 14, however, will be attracted to a limited extent as the functionaries named in the Code of Criminal Procedure are public functionaries. They also have a public duty to perform. If the State fails to discharge its public duty or acts in defiance, deviation and departure of the principles of law, the court may if interfere. The court may also interfere when the legal policy laid down by the Government for the purpose of such appointments is departed from or mandatory provisions of law are not complied with. Judicial review can also be resorted to, if a holder of a public office is sought to be removed for reason dehors the statute." Unfortunate situation :- 11. The order impugned in the present writ petition shows that the service of the petitioner was terminated forthwith and the District Collector was directed to pay the retainer fee to the petitioner. Even though the petitioner has no right to continue in office, the respondents owe a duty to him to settle his fees. It is true that the Government have got the right to appoint their counsel. The said authority has got a corresponding duty to settle the fees payable to the outgoing Government Pleader. The Government should recognize the service rendered by a particular lawyer during his service as Government Pleader aid settle his bills as expeditiously as possible and in all cases, within a reasonable time. It is quite unfortunate that the lawyers have to approach the Court either by way of filing writ petition or by filing civil suit for the purpose of collecting their fees and the Government also opposes such litigation like an adversary. Therefore, in all fairness, the Government should try to settle the fees payable to the Government Pleaders whose appointment comes to an end either by efflux of time or by termination for valid reason. Individual case: - 12. In the present case, the fees due to the petitioner has not been paid and the said reason appears to be the main cause for the petitioner to come up with the present writ petition. In such circumstances, I am of the view that though no interference warranted in the impugned order, the respondents should take earnest efforts to settle the fees due to the petitioner as expeditiously as possible. Direction 13.
In such circumstances, I am of the view that though no interference warranted in the impugned order, the respondents should take earnest efforts to settle the fees due to the petitioner as expeditiously as possible. Direction 13. In the result, the writ petition is disposed of by directing the respondents to pay the entire fees due to the petitioner as expeditiously as possible and in any case within a period of twelve weeks from the date of receipt of a copy of this order. The writ petition is disposed of subject to the above direction.