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IN THE HIGH COURT OF KARNATAKA

CIRCUIT BENCH AT DHARWAD

DATED THIS THE 5TH DAY OF OCTOBER, 2012

BEFORE

THE HON’BLE MR. JUSTICE ASHOK B. HINCHIGERI

WRIT PETITION No.64718/2012 (S-RES)

BETWEEN:

Smt. Dakshayani,

D/o Chinnayya Nadurmath,Age: 43 years, Occ: Advocate,

R/o P2/1, PWD Quarters,Near Darbar Hall,

Behind Dharwad Hotel,Dharwad – 580 001. … Petitioner

(By Sri H. Subramanya Jois, Sr.Counsel for

Sri V.R.Datar for Sri Hemanth Kumar L.Havaragi)

AND:

1. The State of Karnataka,Represented by Chief Secretary to

Government of Karnataka,Bangalore.

2. State of Karnataka,

By its Secretary,

Department of Law andJustice and Human Rights,

Vidhana Soudha,Bangalore – 560 001.

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3. Deputy Commissioner,District Dharwad,

Dharwad – 580 001.

4. Sri Ramachandra,S/o Govindappa Avalakki @ Naidu,

Age: Major, Occ: Advocate,R/o Bin Govindappa,

Venkatadri plot 46,6th Cross, Mayor Park,

Lakumanahalli,Yalakki Shettar Colony,

Dharwad – 580 005. … Respondents

(By Smt. K.Vidyavati, AGA for R-1 to R-3,

Sri V.P.Kulkarni, Advocate for R-4)

This writ petition is filed under Articles 226 and 227 of theConstitution of India praying to quash the notification No.LAW

142 LAG 2009 dated 4.6.2012 issued by the respondent No.2produced herewith as Annexure-P declaring the same as

violative of Articles 14 and 16(1) of the Constitution of India andthe provisions of the Karnataka (Law Officer) appointment and

conditions of Service of Rule. 1977 and etc.

This writ petition being heard and reserved for orders on12.9.2012 coming on for pronouncement of orders this day, the

Court made the following:

O R D E R

The petitioner has raised the challenge to the order, dated

04.06.2012 (Annexure-P) relieving her of her duties as Dharwad

District Government Pleader and appointing the fourth

respondent in her place.

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2. Sri H. Subramanya Jois, the learned Senior Counsel

appearing for Sri V.R.Datar, the learned counsel for the

petitioner submits that the impugned order is illegal, as by the

very same order the petitioner is removed from the office of the

District Government Pleader, the fourth respondent is appointed

in her place. The passing of such composite orders is not

traceable to any provision of law.

3. He submits that no decision is taken, much less a

conscious decision for appointing the respondent No.4 as the

District Government Pleader. He submits that the Note No.142

only shows that the Law Minister has given his approval to the

appointment of the fourth respondent. On the other hand, no

functionary has ever made the proposal for appointing the fourth

respondent as the District Government Pleader. That being the

case, the question of according the approval would not arise at

all. No competent authority has taken the decision. No sanction

is given to appoint the fourth respondent as the District

Government Pleader.

4. The learned Senior Counsel complains of the violation

of Article 14 of the Constitution of India. He submits that the

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removal of the petitioner smacks of malice. He submits that for

political reasons, the petitioner is being removed. He submits

that the same is on the basis of the minutes, dated 25.06.2010

(Annexure-C) given by Sri Jagadeesh Shettar, the then Rural

Development and Panchayat Raj Minister and the letter, dated

28.06.2010 (Annexure-D) sent by Sri Prahlad Joshi, the Member

of Parliament, Dharwad. He also brings to my notice the letter,

dated 29.06.2011 (Annexure-F) sent by the Hubli-Dharwad

Mahanagara District Unit of Bharathiya Janata Party. He submits

that a political party cannot comment on the professional

competence of anybody.

5. He complains of the colourable exercise of power. Only

to remove the petitioner from the post of the District

Government Pleader, the fourth respondent’s name is brought

in. He also complains that the official respondents have resorted

to the method of pick and choose. He submits that as per the

report, dated 17.12.2011 (Annexure-M) submitted by the District

Judge, the names of five advocates are forwarded with the

emphasis that they are in order of preference. In the list of five

names, the fourth respondent’s name is at the bottom. Without

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stating for what just reasons, the advocates from Sl.Nos. 1 to 4

are eliminated, the fifth name (the fourth respondent herein)

ought not to have been appointed.

6. He submits that as per Rule 5(3) of the Karnataka Law

Officers (Appointment and Conditions of Service, Rules) 1977,

(‘the said Rules’ for short), once the services of the District

Government Pleader are extended, he or she shall hold the post

for three years. The provisions are extracted hereinbelow:

5. Appointment of Law Officers:

(1) …………..

(2) …………..

(3) Subject to the other provisions contained in

these rules, unless otherwise ordered in the order of

appointment, a person appointed as a law officer shall

hold at a time, for a term not exceeding three years, but

shall be eligible for re-appointment after the expiry of

such term:

Provided that 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

twelve months whichever is earlier.”

7. He submits that the District Government Pleader can be

removed from the office at any time, if he is found guilty of any

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act or conduct which is incompatible with his duties as the Law

Officer. In the instant case, the petitioner is not even being put

on notice; nobody has complained against her.

8. Nextly, the learned Senior Counsel reads out Rule 26(2)

of the said Rules to advance the submission that the

Government has to go by the remarks made by the District

Judge in the appointment of the District Government Pleader.

The said provisions are extracted hereinbelow:

“26. Appointment of District Government Pleader, etc.,

(1) ……………

(2) The Deputy Commissioner shall, whenever

required by the Government, 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. 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 his suitability of each of them for the

concerned post. The Government shall thereafter make

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the appointments having regard to the remarks of

District Judge and the Deputy Commissioner.”

9. The learned Senior Counsel has also relied on this

Court’s decision in the case of S.H.MOHAN KUMAR vs. STATE

OF KARNATAKA reported in ILR 2005 KAR 5517 for

advancing the submission that it is incumbent upon the

authorities to follow the principles of natural justice and provide

an opportunity to the affected persons before passing any order

holding him guilty of misconduct. He submits that the duties of a

Law Officer cannot be equated to that of a professional, who is

engaged by the private client, as the responsibilities entrusted to

the Law Officer partake a public character. Any order removing

him from service on the basis of allegations made by the third

parties would have serious repercussions for him in his future

professional career.

10. Sri V.P.Kulkarni, the learned counsel for the

respondent No.4 has raised two preliminary objections to the

maintainability of this petition.

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11. He submits that the petitioner had filed

W.P.No.63773/2012 on 02.06.2012 two days prior to the

issuance of the impugned order on 04.06.2012. Subsequent to

the filing of the writ petition, the impugned order issued on

04.06.2012, was inserted and the matter was got listed on

07.06.2012. When these things were brought to the notice of

this Court, the petitioner withdrew the said writ petition on

02.07.2012.

12. Sri Kulkarni submits that the petitioner has not got the

liberty reserved to him by this Court in W.P.No.63773/2012 to

file one more writ petition on the same cause of action. He

submits that the provisions contained in Order 23 Rule 1 CPC

dealing with withdrawal of the suit are applicable for the writ

proceedings also. He has also relied on the Apex Court’s

judgment in the case of SARGUJA TRANSPORT SERVICE vs.

STATE TRANSPORT APPELLATE TRIBUNAL, GWALIOR AND

OTHERS reported in AIR 1987 SC 88, wherein it is held that if

the writ petition is withdrawn without permission to institute the

fresh petition, the fresh petition on the same cause of action is

not maintainable.

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13. The second preliminary objection raised by Sri Kulkarni

is that the petitioner had earlier filed W.P.No.62266/2011

assailing the notification calling for the applications for the

appointment of the Government Pleader of Dharwad District. The

said writ petition was dismissed by the learned Single Judge by

his order, dated 14.03.2011 (Annexure-G). This was confirmed

by the Division Bench in its judgment, dated 25.05.2011 passed

in W.A.No.6100/2011 holding that the petitioner has no right to

challenge the notification calling for applications for the post of

District Government Pleader merely because she is an incumbent

in the office as on the date of the notification.

14. Sri Kulkarni submits that the petitioner may have

sought the liberty to file a fresh petition on the same cause of

action, but when the Court has not granted it, what follows from

it is that such a sought liberty is impliedly refused. He read out

the Explanation 5 to Section 11 of the Code of Civil Procedure.

It is as follows:

“Explanation V.- Any relief claimed in the plaint, which

is not expressly granted by the decree, shall for the

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purposes of this section, be deemed to have been

refused.”

15. He brings to my notice that the decision to remove the

petitioner from the office of the District Government Pleader and

appoint the respondent No.4 are independent of one another.

There is no composite decision, as was trying to be made out by

the petitioner’s side. He further brings to my notice, the Note

No.46 put up by the Law Secretary before the Hon’ble Law

Minister. The note put up was whether to continue the

petitioner’s services or call for fresh applications. The Hon’ble

Law Minister has made an order for calling for applications at

Note No.47.

16. The learned counsel brings to my notice, the Division

Bench’s judgment in the case of SRI HANUMANTHA RAO

KULKARNI vs. THE STATE OF KARNATAKA AND ANOTHER

reported in 2008(3) KCCR 1821, wherein it is held that the

opinion of the District Judge is not binding on the Government.

He submits that the District Judge’s opinion is of advisory

nature. The learned counsel also sought to draw the support

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from the Apex Court’s Judgment in the case of STATE OF U.P.

AND OTHERS vs. U.P. STATE LAW OFFICERS ASSOCIATION

AND OTHERS reported in AIR 1994 SC 1654 to buttress his

submission that when the relationship between the Government

and the Government Pleader is basically of contractual nature,

when the rules specifically provide for the appointment and

termination of the Government Pleaders at the will of the

Government, nobody can claim any vested right that his or her

services be continued. He read out the following portions of

para-6:

“6. The appointment of lawyers by the Government

and the public bodies to conduct work on their behalf,

and their subsequent removal from such appointment

have to be examined from three different angles, viz.,

the nature of the legal profession, the interests of the

public and the modes of the appointment and removal.

Legal profession is essentially a service-oriented

profession. The ancestor of today's lawyer was no more

than a spokesman who rendered his services to the needy

members of the society by articulating their case before'

the authorities that be. The services were rendered

without regard to the remuneration received or to be

received. With the growth of litigation, lawyering became

a full-time occupation and most of the lawyers came to

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depend upon it as the sole source of livelihood. The

nature of the service rendered by the lawyers was private

till the Government and the public bodies started

engaging them to conduct cases on their behalf. The

Government and the public bodies engaged the services

of the lawyers purely on a contractual basis either for a

specified case or for a specified or an unspecified period.

Although the contract in some cases prohibited the

lawyers from accepting private briefs, the nature of the

contract did not alter from one of professional

engagement to that of employment. The lawyer of the

Government or a public body was not its employee but

was a professional practitioner engaged to do the

specified work. This is so even today, though the lawyers

on the full-time rolls of the Government and the public

bodies are described as their law officers. It is precisely

for this reason that in the case of such law officers, the

saving clause of Rule 49 of the Bar Council of India Rules

waives the prohibition imposed by the said rule against

the acceptance by a lawyer of a full-time employment.

The relationship between the lawyer and his client is

one of trust and confidence. The client engages a lawyer

for personal reasons and is at liberty to leave him also,

for the same reasons. He is under no obligation to give

reasons for withdrawing his brief from his lawyer. The

lawyer in turn is not an agent of his client but his

dignified, responsible spokesman. He is not bound to tell

the court every fact or urge every proposition of law

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which his client wants him to do, however irrelevant it

may be. He is essentially an adviser to his client and is

rightly called a counsel in some jurisdictions. Once

acquainted with the facts of the case, it is the lawyer's

discretion to choose the facts and the points of law which

he would advance. Being a responsible officer of the court

and an important adjunct of the administration of justice,

the lawyer also owes a duty to the court as well as to the

opposite side. He has to be fair to ensure that justice is

done. He demeans himself if he acts merely as a

mouthpiece of his client. This relationship between the

lawyer and the private client is equally valid between him

and the public bodies.

x x x x x x x

x x x x x x x x

It would be evident from Chapter V of the said Manual

that to appoint the Chief Standing Counsel, the Standing

Counsel and the Government Advocate, Additional

Government Advocate, Deputy Government Advocate and

Assistant Government Advocate, the State Government is

under no obligation to consult even its Advocate-General

much less the Chief Justice or any of the judges of the

High Court or to take into consideration, the views of any

committee that " may" be constituted for the purpose.

The State Government has a discretion. It may or may

not ascertain the views of any of them while making the

said appointments. Even where it chooses to consult

them, their views are not binding on it. The appointments

may, therefore, be made on considerations other than

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merit and there exists no provision to prevent such

appointments. The method of appointment is indeed not

calculated to ensure that the meritorious alone will always

be appointed or that the appointments made will not be

on considerations other than merit. In the absence of

guidelines, the appointments may be made purely on

personal or political considerations, and be arbitrary. This

being so those who come to be appointed by such

arbitrary procedure can hardly complain if the termination

of their appointment is equally arbitrary. Those who come

by the back door have to go by the same door. This is

more so when the order of appointment itself stipulates

that the appointment is terminable at any time without

assigning any reason. Such appointments are made,

accepted and understood by both sides to be purely

professional engagements till they last. The fact that they

are made by public bodies cannot vest them with

additional sanctity. Every appointment made to a public

office, howsoever made, is not necessarily, vested with

public sanctity. There is, therefore, no public interest

involved in saving all appointments irrespective of their

mode. From the inception some engagements and

contracts may be the product of the operation of the

spoils system. There need be no legal anxiety to save

them.”

17. The learned counsel submits that the impugned order

does not attach any stigma to the petitioner. It relieves her of

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her position by giving one month’s retainership fee. The same is

done in exercise of power conferred by Rule 5(6) and not Rule

5(5) of the said Rules. No reasons are required to be assigned

for terminating the services of a Government Pleader. He

submits that the Division Bench of this Court in the case of

KHUSRO QURAISHI vs. STATE OF KARNATAKA reported in

2012(3) AIR KAR 136, involving more or less similar facts and

circumstances, upheld the removal of Chairman of States

Minority Commission, as the statute under which he was

appointed itself states that the Chairman shall hold power only

during the pleasure of the Government.

18. On the grievance of the petitioner that she is being

removed for political reasons, Sri Kulkarni states that the

Government Pleader’s appointment is of political nature only. He

brings to my notice that even the petitioner was appointed only

on the basis of the recommendations of Dharwad (Urban) M.L.A.

Sri Gurappa Bellad and the Member of Parliament from Shimoga

Constitutency, Sri D.Y.Raghavendra. He read out Note No.11

from the noting sheet, a copy of which was produced as

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Annexure-N to the earlier writ petition in W.P. No.62277/2011.

They are extracted hereinbelow:

“F PÀÄjvÀAvÉ zsÁgÀªÁqÀ f¯ÉèAiÀÄ f¯Áè ¸ÀPÁðj ªÀQîgÁzÀ ²æêÀÄw

zÁæPÁëAiÀÄt a£ÀßAiÀÄå £ÀqÀÆgÀªÀÄoÀ, EªÀgÀ ¸ÉêÁªÀ¢üAiÀÄ£ÀÄß ±ÀºÀgÀ

±Á¸ÀPÀgÁzÀ UÀÄgÀ¥Àà ¨É®èzÀ ºÁUÀÆ ¯ÉÆÃPÀ¸À s̈Á ¸ÀzÀ¸ÀågÁzÀ ²æà r.ªÉÊ.

gÁWÀªÉÃAzÀæ ªÀÄvÀÄÛ G É̄èÃTvÀ ¢£ÁAPÀ : 07-01-2010gÀ ¥ÀæzsÁ£À f¯Áè

ªÀÄvÀÄÛ ¸ÀvÀæ £ÁåAiÀiÁ¢üñÀgÀ EªÀgÀ ²¥sÁgÀ¹ì£À ªÉÄÃgÉUÉ PÀArPÉ (6)gÀAvÉ ¸ÀzÀj

ªÀQîgÀ£ÀÄß ¢£ÁAPÀ : 10-02-2010gÀ C¢ü¸ÀÆZÀ£ÉAiÀÄ°è ¢£ÁAPÀ: 23-04-

2010jAzÀ eÁjUÉ §gÀĪÀAvÉ ªÀÄÆgÀÄ ªÀµÀðzÀ CªÀ¢üUÉ CxÀªÁ ªÀÄÄA¢£À

DzÉñÀzÀªÀgÉUÉ EªÉgÀqÀgÀ°è AiÀiÁªÀÅzÀÄ ªÉÆzÀ¯ÉÆà C°èAiÀĪÀgÉUÉ zsÁgÀªÁqÀ

f¯ÉèAiÀÄ f¯Áè ¸ÀPÁðj ªÀQîgÀ ºÀÄzÉÝAiÀÄ°è ªÀÄÄAzÀĪÀgɸÀ¯ÁVgÀÄvÀÛzÉ.

¥ÀÄl-17”

19. In the course of rejoinder, Sri Subramanya Jois

submits that W.P.No.63773/2012 had to be withdrawn because

of the technical errors inadvertently committed by the

petitioner’s learned counsel on record. He submits that the

advocate on record is an inexperienced member of the Bar. He

submits that the original prayers in W.P.No.63773/2012 were as

follows:

(i) Call for the entire records concerning and

connected with the appointment to the post of the

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District Government Pleader, Dharwad District,

Dharwad, in File No.Law 142 LAG 2009, peruse

the same and declare and quash the orders dated

28.4.2012 and 17.5.2012 found in paragraphs

142 and 144 of the said file vide Annexure-P

declaring the same as violative of Articles 14 and

16(1) of the Constitution and the provisions of the

Karnataka (Law Officers) Appointment and

Conditions of Services of Rules, 1977, etc.,

(ii) To issue a writ in the nature of prohibition

commanding the respondents 1 to 3 from issuing

any orders of appointment to the 4th respondent

in pursuance of the orders contained in File

No.Law 142 LAG 2009, peruse the same and

declare and quash the orders dated 28.4.2012

and 17.5.2012 found in paragraphs 142 and 144

of the said file vide Annexure-P.

(iii) Pass such other orders as this Hon’ble Court may

deem fit in the circumstances of the case,

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including the award of the costs of this petition, in

the interest of justice and equity.”

20. The impugned order, dated 04.06.2012 came to be

issued subsequent to the filing of the W.P.No.63773/2012. The

prayer had to be incorporated for the quashing of the impugned

order. The petitioner’s learned counsel on record ought to have

filed an I.A. for the amendment of the petition. On the other

hand, not knowing the procedure, he straightaway inserted the

prayer for the quashing of the impugned order. It is because of

this inadvertent error that the earlier writ petition had to be

withdrawn. For the innocent mistake on the part of the advocate

on record, the petitioner should not be punished, so pleads the

learned Senior Counsel.

21. Smt.K.Vidyavathi, the Additional Government Advocate

appearing for the respondent Nos.1 to 3 submits that the

appointment of the fourth respondent is in accordance with the

provisions contained in Rule 26(2) of the said Rules. She submits

that the petitioner challenged the notification, dated 26.2.2011

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(Annexure-L) calling for fresh applications for filling up the office

of the District Government Pleader but without any rate of

success. Further the petitioner has not made any application in

response to the said notification.

22. The learned Additional Government Advocate submits

that under Rule 5(2) of the said Rules, all law officers shall hold

the office only during the pleasure of the Government. The post

in question being a pleasure post, nobody can claim any vested

right to be continued as the Government Advocate or Pleader, so

submits the learned Addl. Government Advocate.

23. In the course of rejoinder, Shri V.R.Datar, the learned

counsel for the petitioner submits that there are no reasons

whatsoever for the removal of the petitioner. The petitioner is

not notified of the complaint or allegations. Unless the reasons

are assigned, the removal of the District Government Pleader

cannot be justified. He submits that just because a post is a

pleasure post, the incumbent cannot be removed whimsically or

arbitrarily. He read out paragraph No.34 of the Apex Court’s

judgment in the case of B.P.SINGHAL vs. UNION OF INDIA

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reported in (2010) 6 SCC 331, which is extracted

hereinbelow:

“34. The doctrine of pleasure, however, is not a

licence to act with unfettered discretion to act arbitrarily,

whimsically, or capriciously. It does not dispense with the

need for a cause for withdrawal of the pleasure. In other

words, “at pleasure” doctrine enables the removal of a

person holding office at the pleasure of an authority,

summarily, without any obligation to give any notice or

hearing to the person removed, and without any

obligation to assign any reasons or disclose any cause for

the removal, or withdrawal of pleasure. The withdrawal of

pleasure cannot be at the sweet will, whim and fancy of

the authority, but can only be for valid reasons.”

24. He submits that when the post itself has not fallen

vacant, the question of appointing the fourth respondent would

not arise.

25. Sri Datar submits that it is also the case of

the Government that the petitioner is removed from

the post, as the complaints are received against her.

The learned AGA’s submission itself is tantamount to

admitting that the impugned removal is stigmatic.

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The observance of the principles of natural justice has to

precede the act of removing the incumbent. In a democratic

set-up, the doctrine of pleasure cannot be invoked for removing

the incumbent arbitrarily. He read out paras 22 and 24 of the

Apex Court’s Judgment in B.P.Singhal’s case (supra) which are

extracted hereinbelow:

“22. There is a distinction between the doctrine of

pleasure as it existed in a feudal set-up and the doctrine

of pleasure in a democracy governed by the rule of law.

In a nineteenth century feudal set-up unfettered power

and discretion of the Crown was not an alien concept.

However, in a democracy governed by rule of law, where

arbitrariness in any form is eschewed, no Government or

authority has the right to do what it pleases. The

doctrine of pleasure does not mean a licence to act

arbitrarily, capriciously or whimsically. It is presumed

that discretionary powers conferred in absolute and

unfettered terms on any public authority will necessarily

and obviously be exercised reasonably and for the public

good.

24. It is of some relevance to note that the “doctrine

of pleasure” in its absolute unrestricted application does

not exist in India. The said doctrine is severely curtailed

in the case of government employment, as will be evident

from clause (2) of Article 310 and clauses (1) and (2) of

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Article 311. Even in regard to cases falling within the

proviso to clause (2) of Article 311, the application of the

doctrine is not unrestricted, but moderately restricted in

the sense that the circumstances mentioned therein

should exist for its operation. The Canadian Supreme

Court in Wells vs. Newfoundland has concluded that “at

pleasure” doctrine is no longer justifiable in the context of

modern employment relationship.”

26. Sri Datar further submits that the petitioner has given

up her entire private practice to become the Government

Pleader. Just because the appointment is of contractual nature,

the petitioner cannot be removed at will. The Government

Pleader’s post is virtually a civil post, therefore, the protection

guaranteed under Article 311 of the Constitution of India has to

be extended to the persons appointed as Government Pleaders.

27. He submits that the question of the petitioner applying

afresh for the post in question do not arise for two reasons: (a)

she was already holding the post, (b) vacancy in the post of

District Government Pleader has not arisen.

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28. Sri Kulkarni, the learned counsel for the respondent

No.4 submits that the petitioner has gone far beyond the

grounds urged in the writ petition. He submits that the Apex

Court’s judgment in the case of B.P.Singhal (supra) has no

application for appointment and the continuation of the law

officers; that the Governor cannot be removed, merely acting on

the doctrine of pleasure, cannot be extended to the law offices.

In this regard he read out the last part of paragraph No.70 of the

said decision.

“……………………. Though the Attorney

General holds a public office, there is an element of

lawyer-client relationship between the Union

Government and the Attorney General. Loss of

confidence will therefore be a very relevant criterion

for withdrawal of pleasure, in the case of a Minister

or the Attorney General, but not a relevant ground in

the case of a Governor.”

29. The submissions of the learned counsel have received

my thoughtful consideration. I do not propose to throw out this

petition on the preliminary objections raised by the respondent

No.4. The filing of the second writ petition on the same cause of

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action is not normally permissible. But, in the instant case, the

first writ petition was withdrawn without inviting any order on

merits on account of the technical errors, committed by the

inexperienced member of the Bar.

30. Similarly, the unsuccessful attempts made by the

petitioner in W.P.No.62266/2011 for assailing the notification

calling for the appointment of the Government Pleader of

Dharwad District and W.A.No.6100/2011 arising therefrom,

would not come in the way of the petitioner challenging the

impugned order, because the orders passed in the writ petition

and the writ appeal were challenged before the Hon’ble Supreme

Court in S.L.P.No.20700/2011. The Hon’ble Supreme Court,

while dismissing the said S.L.P. as withdrawn, by its order, dated

08.08.2011 (Annexure-J) had observed that the same will not

prevent the petitioner from seeking the remedy, if and when

such cause of action arises. By the operation of the doctrine of

merger, the orders passed by the learned Single Judge and by

the Division Bench of this Court have merged in the order passed

by the Apex Court in the said S.L.P. Pursuant to the observation

25

made at the time of disposing the S.L.P., the petitioner is

challenging the impugned order. She cannot be shut out from

doing so.

31. Basically the following interconnected questions fall for

my consideration:(i) Whether the impugned order is illegal and

arbitrary? (ii) Whether the impugned order is actuated by

malafides? (iii) Whether the non-observance of the principles of

natural justice has vitiated the passing of the impugned order?

32. To answer these questions, it is necessary to know the

genesis of the appointment of the Government Pleaders. As held

by the Apex Court in the case of U.P. State Law Officers

Association (supra), the method of appointment is indeed not

calculated to ensure that the meritorious alone will be appointed

or that the appointment made will not be on considerations other

than merit. In the absence of guidelines, the appointments are

made purely on personal and political considerations and at

times arbitrarily. This being so, those who come to be appointed

by such arbitrary procedure can hardly complain that the

26

termination of their appointment is arbitrary. Those who come

by the backdoor have to go by the same door. The Apex Court

has further observed that from the inception, the Law Officers’

appointments are the product of the operation of the spoils

system. There need be no legal anxiety to save them.

33. The Apex Court’s decision in the U.P. State Law

Officers Association (supra) has full application for the facts

of this case. As is evident from Note No.11 (Annexure-N in

W.P.No.62277/2011), the petitioner was appointed on the basis

of the recommendations of Dharwad M.L.A., Gurappa Bellad and

the Member of Parliament from Shimoga Constituency, Sri

D.Y.Raghavendra. The said note is extracted supra. Now she

cannot nurse the grievance that the fourth respondent is being

appointed at the instance of Sri Jagadish Shettar and Sri Pralhad

Joshi. The initial appointments, their continuation and their

termination may be for political reasons only.

34. The petitioner has no legally vested right to demand

that her services be continued for a period of three years from

23.11.2010 based on the notification, dated 10.02.2010

(Annexure-B).The said order makes it very clear that the

27

petitioner’s services are continued for a period of three years or

until further orders, whichever is earlier. The said notification is

extracted hereinbelow:

PÀ£ÁðlPÀ ¸ÀPÁðgÀ PÀ£ÁðlPÀ ¸ÀPÁðgÀzÀ ¸ÀaªÁ®AiÀÄ,

¸ÀASÉå: ¯Á 142 J¯ïJf 2009 «zsÁ £À ¸ Ëzs À ,

¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ:

10.02.2010

C¢ü¸ÀÆZÀ£É

²æêÀÄw zÁPÁë¬Ät a£ÀßAiÀÄå £ÀqÀÆgÀªÀÄoÀ, EªÀgÀ£ÀÄß PÀ£ÁðlPÀ PÁ£ÀÆ£ÀÄ C¢üPÁjUÀ¼À

(£ÉêÀÄPÁw ªÀÄvÀÄÛ ¸ÉêÁ µÀgÀvÀÄÛUÀ¼ÀÄ) ¤AiÀĪÀÄUÀ¼À 1977 gÀ°è£À µÀgÀwÛUÀ½UÉƼÀ¥ÀlÄÖ

¢£ÁAPÀ: 23.04.2010 jAzÀ eÁjUÉ §gÀĪÀAvÉ ªÀÄÆgÀÄ ªÀµÀðUÀ¼À CªÀ¢üUÉ CxÀªÁ

ªÀÄÄA¢£À DzÉñÀzÀªÀgÉUÉ EªÉgÀqÀgÀ°è AiÀiÁªÀÅzÀÄ ªÉÆzÀ¯ÉÆà C°èAiÀĪÀgÉUÉ zs Á gÀª Á q À f¯ÉèAiÀÄ

f¯Áè ¸ÀPÁðj ªÀQîgÀ ºÀÄzÉÝAiÀÄ°è ªÀÄÄAzÀĪÀgɸÀ¯ÁVzÉ.

PÀ£ÁðlPÀ gÁdå¥Á®gÀ DzÉñÁ£ÀĸÁgÀ

ªÀÄvÀÄÛ CªÀgÀ ºÉ¸Àj£À°è,

(E.²ªÁ£ÀAzÀ)

¸ÀPÁðgÀzÀ C¢üãÀ PÁAiÀÄðzÀ²ð (DqÀ½vÀ-1)

PÁ£ÀÆ£ÀÄ, £ÁåAiÀÄ ªÀÄvÀÄÛ ªÀiÁ£ÀªÀ ºÀPÀÄÌUÀ¼À E¯ÁSÉ.

35. Rule 5(2) of the said Rules unequivocally states that all

officers shall be appointed by the Government and shall hold

office during the pleasure of the Government. The appointment

of the District Government Pleader is only a professional

28

engagement terminable at all. Law is no trade; government

briefs are no merchandise.

36. The Division Bench in the case of Khusro Quraishi

(supra) has held that once the doctrine of pleasure is invoked,

neither the principles of natural justice would step in nor any

question of giving an opportunity before removal would arise.

37. This Court’s decision in the case of S.H.Mohan Kumar

(supra) does not come to the rescue of the petitioner in any

way. In the said case, Rule 5(5) of the said Rules was invoked

in the order removing the Government Pleader. But in the case

on hand, the impugned order is passed in exercise of the power

conferred by Rule 5(6) of the said Rules. While the order passed

invoking Rule 5(5) of the said Rules attaches stigma to the

Government Pleader, the same thing cannot be said in respect of

the order terminating the Government Pleader’s appointment

without assigning any reason and by giving one month’s notice

or giving one month’s retainership fee in lieu of such notice. For

invoking Rule 5(5), the observance of the principles of natural

justice is a condition precedent. Further, once the order is

29

passed invoking Rule 5(5), the concerned person is not entitled

to get one month’s retainership fee. On the other hand, if the

services are terminated invoking Rule 5(6) of the said Rules,

payment of one month’s retainership, in the absence of the

issuance of notice, becomes a mandatory requirement. The

impugned order does not attach stigma to the petitioner. It is in

the nature of termination simplicitor.

38. For the ready perusal, the said provisions are extracted

again:

“5. Appointment of Law Officers:

(1) …………..

(2) …………..

(3) …………….

(4) …………….

(5) A law officer shall be liable to be removed

from office at any time if he is guilty of any

act or conduct which, in the opinion of the

Government is contrary to these rules or is

incompatible with his duties as such law

officer. Decision of the Government in such

cases, shall be final.

(6) Save as otherwise provided in sub-rule (5)

and subject to the provisions of sub-rule (2),

30

the State Government may terminate the

appointment of a law officer without

assigning any reason for giving one month’s

notice in writing or by giving one month’s

retainer in lieu of such notice.”

39. Similarly, the Apex Court’s decision in the case of

B.P.Singhal (supra) would be of no assistance for the

petitioner. What fell for consideration in the said case is whether

the removal of Governor is justiciable. In the said case, the Apex

Court has taken the considered view that the loss of confidence

in the Attorney General would be a relevant criterion for the

withdrawal of pleasure. The same principle is applicable to the

Government Pleader also.

40. It is also profitable to refer to the Hon’ble Supreme

Court’s judgment in the case of STATE OF U.P. AND OTHERS

vs. RAKESH KUMAR KESHARI (reported in (2011) 5 SCC

341) wherein it is held that the High Court in exercise of its

jurisdiction under Article 226 of the Constitution of India cannot

compel the State to utilise the services of an advocate

irrespective of its choice. It is for the State to engage and dis-

engage a counsel.

31

41. The submissions that the composite order for

removing the petitioner and appointing the fourth respondent is

passed and that no conscious decision is taken to appoint the

fourth respondent are meritless. Note No.46 put up by the Law

Secretary before the Hon’ble Law Minister is for the decision as

to whether to continue the petitioner’s services or call for fresh

applications. The Hon’ble Minister has made an order calling for

the applications at Note No.47. The notification intimating the

relieving of the petitioner and appointing the fourth respondent

as the Government Pleader does not suffer from any infirmity or

illegality.

42. On the slender ground that the fourth respondent’s

name is at the bottom of the list of five names prepared by the

District Judge, the appointment of the fourth respondent as the

Government Pleader cannot be quashed. The Apex Court in the

case of Hanumantha Rao Kulkarni (supra) held that the

recommendations of the District Judge is not binding on the

Government. The Government is only required to consider the

remarks of the District Judge; the Government cannot dispense

32

with the consultation itself. The Apex Court in the case of U.P.

STATE LAW OFFICERS ASSOCIATION (supra) has

recognised the wide discretion that the Government has in the

matter of appointing the Law Officers. The District Judge’s

remarks are only regarding the suitability of the candidates for

the appointment.

43. That apart, the petitioner has no litigational

competence to challenge the fourth respondent’s appointment on

the ground of the Government not following the order of

preference indicated by the District Judge. Such a ground could

have been raised only by the advocates found at Sl.Nos.1 to 4 in

the list.

44. In the result, I dismiss this petition. No order as to

costs.

Sd/-

JUDGE

Cm/MD/MKC/MRK