M.B. Nagraj v. State of Karnataka

Judgment

1. State of Karnataka Department of Law, Justice & Human Rights, Vidhan Soudha, Bangalore By its Secretary Administration) . .Appellant .

2. Deputy Commissioner. Raichur, Dist: Raichur, . . . Respondents

This Writ Appeal is filed U/s 4 of the Karnataka High Court Act, Praying to set aside the judgment and order dated 10-0U2012 passed in the Writ Petition No.47953/2011 by the Hon’ble Single Judge. This Writ Appeal coming on for Orders this day, N,Kumar J. delivered the following:- JUDGMENT This appeal is preferred by the appellant challenging the order dated 10.01.2012 passed by the learned Single Judge wherein he has declined to set aside the impugned order dated 25.11.201 1 passed vide Annexure E, wherein the earlier order passed by the Government on 03.11.2011 continuing the appellant in the post of District Government Pleader was withdrawn,

2. The appellant is a practicing advocate. The Government of Karnataka appointed him as District Government Pleader at Raichur vide Government Order No. LAW 103 LAC 2008 3 dated 22.08.2008 for a period of 3 years. Before completion of 3 years, on 08.08.2011 he filed an application for his continuation In the post for another period of 3 years. On such request after taking written opinion from the District Judge, Raichur, respondent no.1 passed an order dated

03.11.2011 for his continuation as District Government Pleader for another 3 years.

3. The grievance of the appellant Is that without notice to him and without assigning any reason and against opinion of the District Judge, Raichur at the instigation of unknown persons, respondent no.1 had withdrawn the continuation order dated 03.11.2011 by the Impugned order dated 25.11.2011. Thereafter a direction was Issued to the District Judge to call for application for the post of District Govt. Pleader by giving advertisement. Challenging the said order the appellant has preferred writ petition. His contention in view of Rule 5(5) of Kamataka Law Officers (appointment and conditions of service) Rules, 1977 (for short 1—•• 4 “the Rules” ) when a person appointed as District Government Pleader a period of 3 years he is eligible for re appointment after expiry of such term and he was re appointed for another 3 years and his services cannot be terminated without any justification and without hearing him and therefore the Impugned order Is ifiegal and required to be set aside. However, the learned Single Judge did not accede to the said request and dismissed the writ petition. It is against the said order the present appeal is filed. As the copy of the order passed by the learned Single Judge is not received by him he has preferred this appeal without producing copy of the same.

4. Learned Counsel for the appellant argued the case on merit contending that if the Impugned order is not set aside great injustice would be done to the petitioner!appellant.

5. We have heard the learned Counsel for the appellant. Rule 5(5) of the Rules deals with appointment of Law Officer. Sub Rule (2) of Rule 5 reads as under: “(2) All law officers shall be appointed by the Government and shall hold office during the pleasure of the government. (3) to other provisions contained in Subject 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 3 years, but shall he eligible for re-appointment after the expiry of such term: Provided notwithstanding 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.” A reading of the aforesaid provision makes it clear that Law Officer appointed under this Rule hold the office during the pleasure of the Government. The term of order of appointment governs their service conditions. They shall not hold office for a term not exceeding 3 years and they are also eligible for re-appointment after expiry of such term if after S 6 expiry of such term unless ordered otherwise maximum period for which they can continue in the office held by them is for a period of 12 months. The Apex Court in the case of State of Uttar Prodesh and Others vs Rakesh Kumar Keshart and Another reported in (2011) 5 5CC 341 dealt with the status of a Government Pleader. It was held after noticing various judgment of the Apex Court on the point where it emphasis the nature of office held by a Lawyer vis-à vis the State being in the nature of professional engagement, the Courts are normally chary to overturn any decision unless an exceptional case is made out. The question as to whether the State is satisfied with the performance of its counsel or not 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. An incumbent has no legally enforceable right as such, the action of the State is not renewing the tenure can be subjected to judicial scrutiny inter alia only on the ground 1z 7 that the same was arbitrary. The Court normally would not delve into the records with a view to ascertain as to what implelled the State not to 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 “Wednesburv unreasonableness”.

6. Further it was held it would not be open to such person to file writ petition under Article 226 of the Constitution for compelling the State to utilise their services as advocates irrespective of choice of the State. It was for the State to select its own counsel. More over in the instant case the advocate had held the post of District Government Pleader for a period of 3 years. After the expirv of three years period he was continued as such till his service came to he terminated. His re-appointment was for a period of 3 years or until such order whichever is earlier. Therefore, the appellant’s right flows from this order, When this order expressly states he is continued in service for a period of 3 years or until further IL 8 orders whichever is earlier and the Impugned order is passed withdrawing the earlier order Is strictly in accordance with law. When the State feels they do not need the appellant and did not want to continue him as District Govt. Pleader the appellant cannot force himself upon the State and contend he should be continued. He is not holding any statutory office as such. Even the Statute permits him to hold such office, but it Is at the pleasure of the Government. When the pleasure of Government is invoked no writ petition lies challenging the order where pleasure is given effect to, of course unless it fails within the doctrine of “Wednesbury unreasonableness”. The very fact he was appointed for a period of 3 years and it is only at the stage of his request for re-appointment, the said benefit is given to him and thereafter withdrawn it cannot be said the conduct of the respondent is unreasonable. All advocates who are duly qualified, energetic should get an opportunity to represent the State. Therefore. we do not see any unreasonableness in the impugned order which calls for interference. Therefore the 9 learned Single Judge keeping in mind the aforesaid judgment of the Apex Court as well as the statutory provision has rightly declined to entertain the writ petition. No merit. Writ Appeal is dismissed. Sri Manavendra Reddy, learned Govt. Advocate is permitted to file his memo of appearance within two weeks. SdI UDG sd/ J UL)cZLi Vb I-