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2012 DIGILAW 4660 (MAD)

V. P. Radhakrishnan v. State of Tamil Nadu Rep By Its Principal Secretary Home Department Govt of Tamil Nadu Chennai

2012-11-09

N.PAUL VASANTHAKUMAR

body2012
Judgment :- 1. The prayer in the writ petition is to quash the order dated 4.6.2012 and direct the respondents to issue necessary orders to continue the petitioner's professional services under the respondents as earlier. 2. According to the petitioner, he is a practicing Advocate at Panruti having experience of more than 12 years. After considering the petitioner's bar experience and worthiness, the second respondent, with the consent of the first respondent, appointed him as Law Officer/Pleader for Government as Additional Public Prosecutor, Assistant Sessions Court, Panruti, by order dated 13.8.2010. The petitioner's said appointment is now cancelled by order dated 4.6.2012 and the said order is challenged in this writ petition. 3. When the matter was argued on an earlier occasion, the learned counsel for the petitioner submitted that the petitioner was not even paid the legal fees payable for the works rendered by him and without paying the said dues, the impugned order of termination has been passed. Hence, the matter was adjourned for enabling the respondents to pay the Retainer fee arrears as well as legal dues, based on which, a sum of Rs.2,51,752/- was paid by way of cheque dated 17.9.2012. 4. The learned counsel for the petitioner filed an additional affidavit stating that a sum of Rs.37,552.17 is payable and the difference in the bill is Rs.59,815/- and total amount payable including interest is Rs.97,367.17. The details as to how the said amount arrived at is also mentioned in the additional affidavit by way of Statement of Accounts, which was filed on 4.10.2012. A sum of Rs.2,51,752/-is already paid as early as on 17.9.2012 and the petitioner is claiming the balance amount of Rs.97,367.17. The second respondent is directed to consider the said claim made by the petitioner and pass orders based on the additional affidavit already filed by the petitioner, within a period of four weeks from the date of receipt of copy of this order. Insofar as the impugned order dated 4.6.2012 is concerned, the petitioner cannot compel the respondents to engage him as a counsel. 5. The said issue is already considered by the Supreme Court in the decision reported in 2011 (5) SCC 341 (State of Uttar Pradesh and Others vs. Rakesh Kumar Keshari and Another). Insofar as the impugned order dated 4.6.2012 is concerned, the petitioner cannot compel the respondents to engage him as a counsel. 5. The said issue is already considered by the Supreme Court in the decision reported in 2011 (5) SCC 341 (State of Uttar Pradesh and Others vs. Rakesh Kumar Keshari and Another). In the said case, it is held that the choice of the counsel is for the Government and none can claim a right to be a counsel. The order of the High Court in ordering renewal of appointment was held as grave error. paragraphs 35 to 37, read as follows:- "Needless to state that the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot compel the State to utilize the services of an advocate irrespective of its choice. It is for the State to select its own counsel. The impugned order of the High Court is set aside. The appeal is accordingly, allowed." 36. Thus it was not open to the respondents to file writ petition under Article 226 of the Constitution for compelling the appellants to utilize their services as advocates irrespective of choice of the State. It was for the State to select its own counsel. In view of the poor performance of the respondents in handling/conducting criminal cases, this Court is of the opinion that the High Court committed a grave error in giving direction to the District Magistrate to forward better particulars of 10 candidates whose names were included in the two panels prepared pursuant to advertisement dated 16.01.2004 and in setting aside order dated 7.9.2004 of the Principal Secretary to the Chief Minister, U.P. calling upon the District Magistrate to send another panel/list for appointment to the two posts of A.D.G.C. (Criminal). 37. The directions given by the High Court in the impugned judgment run contrary to the well-settled principles of law and therefore cannot be upheld. Thus, the appeal deserves to be allowed. 38. For the foregoing reasons the appeal succeeds. The Judgment dated 11.07.2005 rendered by the Division Bench of High Court of Allahabad in Civil Miscellaneous Writ Petition No. 28444 of 2005 is set aside" 6. Applying the said judgment to the facts of this case, the impugned order cannot be found fault with. Hence, the impugned order is upheld. 38. For the foregoing reasons the appeal succeeds. The Judgment dated 11.07.2005 rendered by the Division Bench of High Court of Allahabad in Civil Miscellaneous Writ Petition No. 28444 of 2005 is set aside" 6. Applying the said judgment to the facts of this case, the impugned order cannot be found fault with. Hence, the impugned order is upheld. The petitioner is directed to hand over all the bundles, which are in his custody to the person authorised by the second respondent to receive the bundles immediately. The writ petition is disposed of accordingly. No costs. Connected miscellaneous petition is closed.