M.B. Nagraj 5/0 Basappa v. State of Kamataka

ORDER The Government Advocate Sri Manavendra Reddy is directed to take notice for the respondents.

2. The grievance of the petitioner is that his service as a District Government Pleader, Raichur, is abruptly discontinued.

3. Sri Shivakumar Kafloor, the learned counsel petitioner submits that the services of the petitioner were continued only on receiving the satisfactory report from the concerned District Judge. He submits that the impugned order is passed in violation of The Kamataka Law Officers (Appointment and Conditions of Service) Rules, 1977. He read out Rule 5(3), (4), (5) and (6) of the said Rules. They are extracted herein below: Section 5(3): SubJect to the other provisions contained is these rules, unless otherwise ordered in the order of appointment, a person appointed as a law officer shall hold office at a time. for a term not exceeding three years. but shall be eligible for re appointment after the expiry of such term: ASH. 3 Provided that notwithstanding the expiry of the term a law officer small, unless othenvise ordered, continue in office until fresh appointment is made or for a period of (twelve months), whichever is earlier. (4) No person shall ordinarily be eligible for appointment or anyone capacity continuously for a period exceeding six years. to continue as a law officer (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 Government in such cases, shall be final. such law officer. Decision (6) Save as otherwise provided in sub-rule (5) and subject to the provisions of sub-rule (2). State Government may terminate the appointment of law officer without assigning (any reason by gMng one month’s notice in writing or by giving one month’s retainer in lieu of such notice.)

4. With reference to the above Rules. it is the submission of Sri Kafloor that once somebody is appointed as a Law Officer, he is Ii9H. 4 entitled to continue to hold the office for a period of three years. The term can be extended for a further period ol three years. He submits that the petitioner is not guilw of any act or conduct, which warrants his premature termination. The minimum that expected of the Government the issuance of one month’s advance notice, as the same is mandatory under sub—Rule (6) of Rule 5, the provisions of which are extracted hereinabove. He read item No.28 of the file (produced as Annexure ‘0’) to buttress his submission that the Law Minister has already approved the petitioner’s continuation as the District Government Pleader ftr the second term. This approval was accorded afer due application of mind. Now without there beinti any reason or rhyme. petitioner’s services arc bein discontinued. Such a discontinuance attaches stigma to the petitioner, who has 30 years’ standing at the Bar.

5. Per contra. Sri Manavendra Reddv. learned Government Advocate submits that the issue is no more res irttecjra. It is covered by the Apex Court’s judgment in the case of STATE OF UTTAR PRADESH AND OTHERS Vs. RAKESH KUMAR KESH.ARI AND ANOTHER reported in (2011) 5 SCC 341. ABH The relevant paragraphs said Judgment extracted hereinbelow: respondents

22. In view of the provisions quoted from the L.R. Manual above as well as in view of the poor as ADGC performance this Court is of (Criminal) in Ghazlpur District, the opinion that the right of the State Government to engage. disengage and renew the terms of its counsel and Law Officers in keeping with the need t? best safeguard interest public considerations, monetary incumbent and the interest of the Government as the client, will have to be upheld. suitability

31. This Court in the said case has further ruled that so long as in appointing a counsel. the procedure laid down In the L.R Manual Is followed and a reasonable or fair procedure Is interfere the court would normally not adopted, Is emphasised by this with the decision. What Court is that the nature of the office held by a lawyer vts-à-vis the State being in the nature of professional engagement. the courts are normally exceptional case is made out. According to this the question as to whether the State is Court to overturn any decision unless ABut 6 satisfied with the performance of its counsel or is primarily a matter between it and the counsel and the extension of tenure of the Public Prosecutor or the District Counsel should not be compared with the right of renewal under a licence or permit granted under a statute. What Is laid down as firm proposition of law is that an incumbent has no legally enforceable right as such and the action of the State in not renewing the tenure can be subjected to Judicial scrutiny inter alla only on the ground that the same was arbitrary. It is also held that the court normally would not delve into the records with a view to ascertain as to what impelled the State not renew the tenure of the Public Prosecutor or a District Counsel and the Jurisdiction of the courts in a case of this nature would be to invoke the doctrine of Wednesbury unreasonableness”.

34. The choice that of Government and none can claim a right to be appointed because it is a position of great trust and confidence. Article 14. however, in a given case. may be attracted to a limited extent if the State fails to discharge Its public duty or acts in defiance, deviation and departure of the principles of law. AVH.

6. The petitioner or aiiv advocate br that matter has no vested rii.ht that his client must conunue to use his lecial services. This Court cannot superimpose any advocate on am’ client. be it. the Government or a private Iii hant.

7. This Court does not any in1Hntement o1 Karnataka Law Olhc’ers lAppointmern and Conditions of Service) Rules. 1977. The subrule(3) of Rule 5 of the said Rules specilies that the Law Officer shall hold oflice br a term not exceedini. three years: the same is in i I-ic nut 11 rv o1 outer limit. The same cai not be construed to mean that an incumbent is entitled 10 hold the olf cc for a minimum period of three years. Further, the Nol ilication dated 3. 11 .2011 itself stales that. the petitioner’s appointment as District Government Pleader shall continue for a period of three years or until further orders, whichever is earlier. Thereibre, there is no legal impediment in discontinuing the petitioner services even before the expirv of three years.

8. That lhe petilioner has a flawless and blemishless thirty years’ standing at the Bar. does not entitle him to demand his retention as the District Government Pleader as a mailer of riiht. flBH. •0 8 The office in question is a pleasure post and not a tenure post. The plain reading of the impugned order reveals that no allegation is made against the petitioner. Therefore. it is hard to believe that such an order attaches stigma to the petitioner.

9. As far as sub-Rule No.6 is concerned, it confers the power on the Government to terminate appointment of the Law Officer. The words used in the said sub-Rule are ‘the Government may’. Such an enabling power cannot be read down to mean that the Government is obliged to give one month’s notice. Even assuming that the Government is obliged to give one month’s notice, it is only in respect of those law officers, whose tenure is fixed in the appointment order. In the instant case, the appointment order itself says that the petitioner’s services are continued either for a period of three years or until further orders, whichever is earlier. I have no hesitation in holding that giving one month’s advance notice is not a pre-requirement for discontinuing the services of the petitioner. Thus, not finding any merit in this petition, dismissed. No order as to costs. ApI- Sd! 3TJDGE