P. Satyanarayana Murthy, S/o. Krishna Murthy v. State of Andhra Pradesh, Rep. by the Principal Secretary, Dept. of Municipal Administration and Urban Development
2022-08-25
R.RAGHUNANDAN RAO
body2022
DigiLaw.ai
ORDER : As both these writ petitions have been filed by the same petitioner and raise the same issues, they are being disposed of, by way of this common order. 2. The 2nd respondent-Corporation had issued a notification vide proceedings in Rc.No.9421/2007/Legal Cell/C6, dated 09.01.2021, calling for applications for being empanelled as counsels for 8 zones of the 2nd respondent- Corporation. One of the eligibility criteria was that, the applicant should have a minimum experience of 10 years at the bar and should not have crossed the age of 60 years. 3. The petitioner, who is a practicing advocate at Visakhapatnam has challenged the said criteria, by way of W.P.No.4320 of 2021. While the said petition was pending, the respondent again issued a fresh notification, Rc.No.9421/2007/LEGAL CELL, with the same conditions and criteria on 08.07.2022. In view of the fresh notification, the petitioner has again approached this Court, by way of W.P.No.2598 of 2022. 4. The contention of the petitioner is that G.O.Ms.No.187, Law (L), dated 06.12.2000 which is the applicable Government Order, does not stipulate any outer limit of 60 years, for considering any person, for appointment as a Law Officer including Standing Counsels for Corporations. The petitioner would submit that the 2nd respondent could not have made an arbitrary stipulation of a maximum age of 60 years when there was no underlying provision of law requiring such an age limit. As such, the said criteria should be set aside and the petitioner should also be permitted to apply. 5. The 2nd respondent has filed a counter affidavit in which it is stated that the mode and method of appointing Standing Counsel for the Greater Hyderabad Municipal Corporation had been fixed by way of Rules vide G.O.Ms.No.669 MA dated 22.06.1964. Rule 8 of these Rules specified a maximum age limit of 60 years, for panel advocates, for the Municipal Corporation of Hyderabad. The Rules formulated under this G.O., were adopted and substituted as the Rules applicable to the 2nd respondent also by way of G.O.Ms.No.117 dated 16.02.1983. Thereafter, the Government of Andhra Pradesh had also issued a Memo No.15945/N2/2002-01 dated 03.09.2002 informing the 2nd respondent-Corporation that the Commissioner of the 2nd respondent shall finalize the selection of Standing Counsel to the respondent-Corporation in terms of these Rules until they are either amended or replaced. 6.
Thereafter, the Government of Andhra Pradesh had also issued a Memo No.15945/N2/2002-01 dated 03.09.2002 informing the 2nd respondent-Corporation that the Commissioner of the 2nd respondent shall finalize the selection of Standing Counsel to the respondent-Corporation in terms of these Rules until they are either amended or replaced. 6. The 2nd respondent submits that G.O.Ms.No.187 dated 06.12.2020 would not be applicable to the 2nd respondent-Corporation as there were existing Rules available under G.O.Ms.No.669 which had been adopted by way of G.O.Ms.No.117 dated 16.02.1983. 7. In reply, the petitioner contends that even if the provision of G.O.Ms.No.669 were to be made applicable, there is still no bar for appointing a counsel who is older than 60 years as a Standing Counsel of the 2nd respondent- Corporation. It is the contention of the petitioner that Rule 8 which places a maximum age limit of 60 years would apply only to a case where a Standing Counsel is appointed on a retainer. As the advocates empaneled as Standing Counsel are to be paid on the basis of the work done by them and not on a retainer basis, the said Rule would not be applicable. 8. The Rules, for regulating the appointment and payment of fees to the counsels, engaged by the Municipal Corporation of Hyderabad, issued by way of G.O.Ms.No.669 dated 22.06.1964, were issued under the powers conferred by Section 585(2) read with Section 674(J) of the Hyderabad Municipal Corporation Act, 1955. Thereafter, the Government of Andhra Pradesh issued G.O.Ms.No.117, dated 16.03.1983 in exercise of the powers conferred by Section 7(2) of the Visakhapatnam Municipal Corporation Act, 1979 directing that the Rules made under G.O.Ms.No.669 shall apply to Visakhapatnam Municipal Corporation, subject to certain modifications specified in the schedule to the notification. These modifications are only of the short title and substitution of the expression ‘Municipal Corporation of Hyderabad’ with the ‘Municipal Corporation of Visakhapatnam’. 9. G.O.Ms.No.187 dated 06.12.2000 appears to have been issued under the general power of the State under Article 162 of the constitution as there is no specific provision of law mentioned in the said Government Order. It is settled law that the Executive power of the State to issue Government Orders, under Article 162 of the Constitution, would arise only where there is no legislation covering the field.
It is settled law that the Executive power of the State to issue Government Orders, under Article 162 of the Constitution, would arise only where there is no legislation covering the field. In such circumstances, the provisions of G.O.Ms.No.187 would be applicable only where appointments of law officers are sought to be made in the absence of any statutory provision. As Statutory Rules, made under G.O.Ms.No.669 dated 22.06.1964, are made applicable to the 2nd Respondent, by virtue of G.O.Ms.No.117 dated 16.02.1983, the operation of G.O.Ms.No.187, dated 06.12.2000, in relation to appointment of law officers of the 2nd Respondent would stand precluded. 10. The question of whether Rule 8 of the Rules restricts the upper age limit to 60 years would have to be considered now. Rule 8 of the Rules reads as follows : “No person who has been appointed by the Corporation as its Standing Counsel on payment of retaining fee, shall be retained in its service, after he has attained the age of sixty years, or if he accepts employment as legal practitioner against the Corporation.” 11. This Rule prescribes an age limit of 60 years to Advocates who appointed as Standing Counsel on a retainer basis. The logical corollary to this would mean that the said rule would not apply to advocates who are engaged on pay for the work done basis would be outside the purview of this restriction. In the present case, it is the admitted case on both sides that the advocates empanelled for the 8 zones of the Municipal Corporation would be paid as per the work done and there is no fixed retainer being paid to such advocates. Consequently, Rule 8 would not apply to selection of Standing Counsel who are paid according to the work done. 12. In the circumstances, it must be held that the maximum age of 60 years stipulated under Rule 8 would not apply to the present empanelment process and as such, the petitioner and all other counsel, above the age of 60, would also be eligible to apply for being empanelled as a Standing Counsel of the 2nd respondent-Corporation. 13.
12. In the circumstances, it must be held that the maximum age of 60 years stipulated under Rule 8 would not apply to the present empanelment process and as such, the petitioner and all other counsel, above the age of 60, would also be eligible to apply for being empanelled as a Standing Counsel of the 2nd respondent-Corporation. 13. Accordingly, these writ petitions are allowed setting aside the proceedings in Rc.No.9421/2007/Legal Cell/C6, dated 09.01.2021 and proceedings in Rc.No.9421/2007/LEGAL CELL dated 08.07.2022 with a direction to the 2nd respondent-Corporation to undertake a fresh process of empanelment, without insisting on the maximum age limit of 60 years for the panel advocates of the 2nd respondent-Corporation, where they are appointed without a retainer fee. There shall be no order as to costs. Miscellaneous petitions, pending if any, shall stand closed.