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2022 DIGILAW 221 (KER)

State Of Kerala v. P. P Biju S/o Pathrose

2022-03-04

ALEXANDER THOMAS, VIJU ABRAHAM

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JUDGMENT : Alexander Thomas, J. The judgment dated 17.11.2021 rendered by the learned Single Judge, finally disposing of the instant petition (civil), W.P(C) No.14653/2021, by mainly allowing pleas therein, is under challenge in this intra-court appeal filed under Sec.5(i) of the Kerala High Court Act. 2. The appellants herein are the respondents in the above W.P(C). The sole writ petitioner therein is the sole respondent herein. The respondent herein will be referred for convenience as 'the writ petitioner/petitioner'. 3. Heard Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader appearing for the appellants in the W.A/respondents in the W.P(C) and Sri.Vinod Ravindranath, learned counsel appearing for the respondent in the W.A/writ petitioner. 4. The prayers in the writ petition (civil), W.P(C) No.14653/2021 filed by the respondent herein, are as follows : “a) To call for the records leading up to Ext.P7 and to issue a writ of mandamus or any other appropriate writ, order or direction quashing Exhibit P7 issued on behalf of the 2nd respondent; b) To issue a writ of mandamus or any other appropriate writ, order or direction allowing Ext.P3 application directing the 2nd respondent to pay the petitioner the back wages from December, 2019 to 18.02.2021 within a time limit to be fixed by this Hon'ble Court. and c) Pass any other appropriate writ, order or direction which this Hon'ble Court may deem fit to issue and the petitioner may prays from time to time.” 5. The petitioner is an Advocate enrolled on the rolls of the Bar Council of Kerala. As per Ext.P-1 G.O(MS) No.204/2016/Law dated 02.12.2016, the competent authority of the State Government in the Law Department has appointed the petitioner as Government Advocate at the Munsiff Court Centre, Aluva, for a period of three years from the date of assumption of charge or till the attainment of 60 years, whichever is earlier. Two persons including the petitioner have been appointed as Government Advocates for Munsiff Courts, as per Ext.P-1. Incidentally, it is relevant to note that as per para No.3 of Ext.P-1 appointment order, the Government has clearly ordered therein that the predecessors in office, who were to be replaced by the new appointees, shall hand over charges to the newly appointed Advocates forthwith. 6. The petitioner had taken charge as Government Advocate, Munsiff Court, Aluva, as per Ext.P-2 15.12.2016 in pursuance of Ext.P-1. 6. The petitioner had taken charge as Government Advocate, Munsiff Court, Aluva, as per Ext.P-2 15.12.2016 in pursuance of Ext.P-1. There were no complaints whatsoever in regard to the duties and responsibilities discharged by the petitioner as Government Advocate. Going by the terms and conditions of Ext.P-1, the petitioner could have continued for a period of three years from the date of assumption of charge (15.12.2016), which is upto 15.12.2019 or till he attains the age of superannuation, whichever is earlier. It is common ground that going by the date of birth of the petitioner, he was to complete the age of 60 years on 29.11.2019 and this fact was well-known to the Government, District Collector, etc. According to the petitioner, well before the attainment of 60 years of age on 29.11.2019, the petitioner had approached the officials concerned of the Suit Cell of the District Collectorate, Ernakulam, pointing out that he had to demit office on 29.11.2019 and as to what he should do in the matter of handing over charges, since it was learnt that no steps have been taken by the Government to appoint a new Government Advocate in lieu of the petitioner. The petitioner was then apprised by the State officials that since the work of a Government Advocate is sensitive and has to be looked after by an authorized Government Advocate, it is his duty to attend to the work, till a newly appointed Government Advocate replaces him or till any other charge arrangement is made by the authorities, like the District Collector, Law Secretary, etc. The petitioner also learn that no steps were then taken for appointment of a new Government Advocate in lieu of the petitioner. Hence, as part of his duties and responsibilities as an Advocate on the rolls of the Bar Council of Kerala as well as, as a Government Advocate, the petitioner felt that he has to discharge the duties and functions of a Government Advocate at Munsiff Court, Aluva, till a new appointee replaces him or till alternate arrangement by way of additional charge, etc., is ordered by the competent authority like the District Collector, etc. No such alternate arrangements were made, the petitioner thereafter continued for the period from 29.11.2019 onwards, even though he had completed the upper age limit of 60 years on that day. No such alternate arrangements were made, the petitioner thereafter continued for the period from 29.11.2019 onwards, even though he had completed the upper age limit of 60 years on that day. The newly appointed Government Advocate had taken charge in the post held by the writ petitioner, only on 18.02.2021. Hence, the petitioner continued to discharge the duties and functions as Government Advocate for the period from 29.11.2019 upto 18.02.2021. Despite requests, he was not given the monthly remuneration for the period from December, 2019 onwards and inspite of this, he continued to function as Government Advocate in the Munsiff Court Centre. The writ petitioner has submitted Ext.P-3 representation dated 22.09.2020, even before he was relieved from the office on 18.02.2021, requesting for payment of the unpaid remuneration for the period from December, 2019, before the District Collector, Ernakulam, pointing out these aspects and requesting to ensure that the monthly remuneration due to him for the period in question is paid. In response thereto, the District Collector has intimated the petitioner as per Ext.P-4 letter dated 08.03.2021 that, in the absence of directives from the higher authorities for permission to continue the petitioner beyond the term, he has brought the matter to the attention of the higher authorities. The petitioner was then constrained to submit yet another representation as Ext.P-5 dated 30.04.2021 (which is after he was relieved on 18.02.2021), reiterating the abovesaid factual aspects and requesting that the entire unpaid remuneration for the period he has continued beyond 29.11.2019 upto his date of relief on 18.02.2021 should be paid to him, etc. Strangely, by Ext.P-6 letter dated 20.04.2021, the District Government Pleader has requested the petitioner to explain, as to under what circumstances he had continued beyond 29.11.2019, etc. Strangely, by Ext.P-6 letter dated 20.04.2021, the District Government Pleader has requested the petitioner to explain, as to under what circumstances he had continued beyond 29.11.2019, etc. Thereafter, the competent authority of the State Government in the Law Department has issued Ext.P-7 communication dated 07.06.2021, issued on behalf of the Law Secretary, stating that, going by the terms and conditions of the Kerala Government Law Officers (Appointment & Conditions of Service) and Conduct of Cases Rules, 1978 ('KGLO Rules' in short), an incumbent like the petitioner can continue either for a period of three years from the date of assumption of charge or till he attains the age of 60 years, whichever is earlier and that there is no provision in the KGLO Rules to permit the continuance of the incumbent like the petitioner beyond the day on which he has completed 60 years viz., 29.11.2019, etc. This decision of the State Government at Ext.P-7 was essentially under challenge in the above writ proceedings. 7. The respondents 1 & 2 have filed a counter affidavit dated 12.08.2021 in the above W.P(C). Reliance is placed on Ext.R1(a), which is a copy of the KGLO Rules, 1978 and emphasis is made on clause 10(3) and in its proviso, which reads as follows : “clause.10 Method of appointment of Pleaders to do Government work XXX XXX XXX XXX XXX XXX (3) The term of appointment of a Pleader appointed under sub-rule (1) shall ordinarily be for a period of three years. The Government may re-appoint any such person for further period not exceeding three years Provided that the services of any such person shall automatically terminate on his attaining the age of sixty years” On this basis, it is contended that the petitioner could not have legally continued beyond the day on which he attained the age of 60 years, in the facts of this case. 8. Further, Ext.R1(b) has been produced to contend that the District Collector has given a report to the Law Secretary stating that the petitioner was not given any authorization by the District Collector to continue as Government Advocate, Munsiff Court, Aluva Centre, after 29.11.2019. 8. Further, Ext.R1(b) has been produced to contend that the District Collector has given a report to the Law Secretary stating that the petitioner was not given any authorization by the District Collector to continue as Government Advocate, Munsiff Court, Aluva Centre, after 29.11.2019. Ext.R1(c) is the letter dated 04.05.2021, sent by the District Government Pleader, Ernakulam addressed to the Law Secretary, in which it has been inter alia stated in para.3 thereof, that the District Government Pleader has not given any specific express instructions to the petitioner to function as the Government Advocate till alternative arrangements are made, etc. However, para Nos.1 & 2 of Ext.R1(c) letter issued by none other than the District Government Pleader, is quite revealing and the same reads as follows : Para.1 of Ext.R1(c) would clearly reveal that the petitioner had clearly informed the District Government Pleader about the fact that his term is only upto 29.11.2019 and that no alternative arrangements have been made and that therefore, he has been continuing to do the work of Government Advocate, in order to protect the rights and interests of the State as a litigant in that court and that enquiry conducted by the District Government Pleader, has also revealed that as a matter of fact, the petitioner has functioned as Government Advocate, Munsiff Court, Aluva, for the abovesaid period, etc. and these aspects have also been duly informed by the District Government Pleader to the District Collector, as early as on 04.03.2021. 9. The learned Single Judge, after hearing both sides, has held that the stand of the Government in rejecting the payment of the remuneration for the unpaid period in question, is legally not sustainable. The learned Single Judge has clearly noted that the respondents in the W.P(C) have no case whatsoever, that the petitioner was given any instruction to be relieved from the position and not to continue after 29.11.2019. Further that, though the KGLO Rules state that the incumbent can continue for a period of three years from the date of assumption or till the date of completion of 60 years of age, which ever is earlier, those Rules and instructions are silent whatsoever about the scenario like the present case, wherein no replacement is made by the authorities concerned or where no charge arrangements are made. Further, the learned Single Judge has also noted that there is no specific provision in the Rules that even in such a scenario, the Government Advocate should not work thereafter, even if no alternate arrangements are made by the authorities concerned. The learned Single Judge thus held that the petitioner has fully acted bonafide in the best interest of the State Government and the Departments concerned as a litigant before the Civil Court concerned. Further that, there is nothing on record to show that the petitioner has not appeared for the Government and represented the Government during the abovesaid period beyond 29.11.2019 and upto 18.02.2021. Hence, the learned Single Judge has held that the competent authority among the respondents shall immediately pay due remuneration to the petitioner, as per the norm envisaged as per Ext.P-1, after ensuring that the writ petitioner has attended the office during those days and that the abovesaid amounts shall be paid within one month, etc. 10. We have heard both sides in extenso. 11. The main provision contained in Ext.R1(a) KGLO Rules, is the one as per clause.10 and its proviso thereof, as mentioned hereinabove. Both Ext.P-1 appointment order as well as clause.10 and its proviso of Ext.R1(a) Rules would make it clear that an incumbent like the petitioner can continue as Government Advocate for a period of three years from the date of assumption or till he/she attains the age of 60 years, whichever is earlier. No provisions have been made in those Rules, as to how the incumbent should be relieved and whether he shall not work beyond the period, even if no alternative arrangements are made by the Government. Therefore, in the absence of Rules, we have to be guided by certain reasonable parameters, which should regulate the matters in the conduct of litigation, in which State is a party. If, as contended by the appellants, a Government Advocate like the petitioner had immediately left the office on 29.11.2019, even though no alternative arrangements whatsoever have been made by the authorities concerned, then it would have led to the situation, whereby the vital interests of the State and the various Government Departments, as a litigant before the said civil court would have been detrimentally affected. The appellants very well knew that the writ petitioner would attain the age of 60 years on 29.11.2019 and therefore, they were obliged to take steps well in advance to ensure that a regular incumbent is appointed to replace him or to ensure that alternative arrangements are made and necessary instructions should have been given to the petitioner either by the District Collector or by the Law Secretary, so that he could give charge to the nominated person concerned. In that regard, as mentioned earlier in this judgment, the contents of para.3 of Ext.P-1 appointment order are quite revealing and relevant. Para.3 of Ext.P-1 would clearly reveal that the past practice is that the previous incumbents should hand over charge to the newly appointed Government Advocates and thereafter, the newly appointed Government Advocates can assume charge. Further, if as contended by the appellants, if the petitioner had left the responsibility altogether, then vital litigative matters in which the State and the Department are parties, would have been left unattended and very many matters in which State and the Department may be defendant, could have been rendered ex-parte or where State is a plaintiff in any suit or where State and the Department is an applicant in any I.A, in any suit, etc., would have been rendered for dismissal due to default. These are the clear consequences that would follow if the abovesaid stand of the Government as reflected in Ext.P-7 is upheld by this Court. Consequences would be disastrous and highly adverse to the State and the Department. It is also relevant to note that this Court in the decision in Aboobaker v. M.Ratna Singh [ 1992 (1) KLT 41 ], has considered the provisions of the abovesaid KGLO Rules. It has been noted therein the recital in the said Rules that the same are framed under the enabling powers conferred as per the Kerala Public Services Act. But this Court has held in the said decision that a Government Pleader, Public Prosecutor, etc., is not a post under the State Government, but is an office and that therefore, such holders like Government Pleader, Public Prosecutor, etc., cannot be said to be Government servants, who are amenable to Kerala Public Services Act and hence, the abovesaid KGLO Rules, cannot be said to be statutory. So, the said Rules are not statutory but non-statutory rules, having the status of an executive order. 12. Further that, if an incumbent like the petitioner had left the position on 29.11.2019 and suits have been decreed ex-parte against the State and the Department, in which they have been arrayed as defendants or I.As filed by the other side are allowed ex-parte against the State or whether applications filed by the State in the pending suits are dismissed for default, etc., then we would not have been surprised if the appellants had even thought of taking steps to file a complaint before the Bar Council of Kerala against the incumbent concerned for dereliction of duty and in not continuing beyond the term until the alternative arrangements were made. In most of the scenarios of this nature, as in this case, what we see is that the administrative wing wants to evade from its responsibilities. We do not know what are the reasons that prevented the appellants from making arrangements for regular appointment, well in advance, prior to the expiry of the term of the petitioner or at least to ensure that another Government Advocate or Government Pleader of any other court is given additional charge. In these circumstances, the only reasonable option available to an Advocate, like the petitioner, was to fulfill his primary duties as an Advocate on the rolls of the Bar Council of Kerala as well as, as a Government Advocate, which the petitioner has done and for that, now the petitioner is penalised. The appellants have taken advantage of the sincere and devoted service and attitude of the petitioner and is now placing the entire blame on him. We are really pained and agonized at the abovesaid attitude shown by the appellants in this case. The District Government Pleader has also clearly stated in para.1 of Ext.R1(c) that the petitioner had continued beyond the term for the reasons stated therein, in order to protect the vital interest of the State as a litigant before the civil court. 13. We are really pained and agonized at the abovesaid attitude shown by the appellants in this case. The District Government Pleader has also clearly stated in para.1 of Ext.R1(c) that the petitioner had continued beyond the term for the reasons stated therein, in order to protect the vital interest of the State as a litigant before the civil court. 13. Further to avoid any such future confusion, the Law Secretary will immediately examine the matter and after obtaining the advice of the learned Advocate General, will issue necessary instructions to ensure that the gaps in the Rules are appropriately filled, so that it is made clear to the Government Advocate in plain terms that he has to continue, even beyond the term until alternative arrangements are made and that he has to be relieved only after handing over charge to the newly appointed Government Advocate, etc. Necessary instructions and guidelines in that regard, shall be duly framed by the Law Secretary, on the basis of the advice of the learned Advocate General, without any further delay. We also do not find the reasons as to what prompted the respondents in the W.P(C) to file this appeal. Accordingly, we do not find any grounds to interfere with the considered views rendered by the learned Single Judge, as per the impugned judgment. Hence, the appellants will immediately comply with the directions issued by the learned Single Judge in para.4 of the impugned judgment to pay the due amounts to the writ petitioner, as per the norms envisaged in Ext.P-1 and after ensuring that the petitioner has attended the office during the abovesaid period in question and to pay the due amounts, without any further delay, at any rate, within six weeks from the date of receipt of a copy of this judgment. We do not find any valid grounds to interfere with the well-considered verdict of the learned Single Judge in this W.P(C). With these observations and directions, the above Writ Appeal will stand dismissed.