*THE HON'BLE SRI JUSTICE P.S. NARAYANA +W.P.No.14863 OF 2004 % 06--4-2006 # S. Nagender .. Petitioner And $ The Government of A.P. rep. By its Principal Secretary and 29 others .. Respondents <GIST: >HEAD NOTE: ! Counsel for petitioners : Sri Thimothy and Sri Tarakam ^ Counsel for respondents : Advocate General and Sri Srinivas Reddy ?CASES REFERRED : 2001(2) SCC 365 2 2001(1) SCC 118 3 AIR 1982 S.C. 149 4 2000(1) ALT 46 5 AIR 1993 S.C. 477 6 AIR 1995 A.P. 248 7 AIR 1999 S.C. 3471 8 1994(3) ALT 41 (DB) 9 (1991) 1 SCC 212 10 1994(2) SCC 204 11 2002(6) ALD 387 12 2003(6) ALD 214 13 2004(4) SCC 714 14 2004(4) SCC 748 15 1998(7) SCC 654 16 1984(1) Lab. & I.C.1053 17 1992(3) ALT 99 (FB) 18 AIR 1967 S.C. 884 19 AIR 1991 S.C. 537 20 AIR 1994 S.C. 1654 21 1991(1) SCC 319 22 1972 SLR 477 (Allahabad) 23 1973(2) An.W.R. 119 24 1969(2) An.W.R. 465 25 AIR 1986 S.C. 210 26 AIR 1986 S.C. 431 27 AIR 1965 S.C. 280 28 AIR 1964 S.C. 1854 291992(3) SCC 526 30 AIR 1990 S.C. 1031 31 1995(5) SCC 482 32 2002(3) L.S. 397 33 AIR 1964 S.C. 254 34 AIR 1961 S.C. 564 35 AIR 1979 S.C. 1628 36 AIR 1980 S.C. 1789 37 AIR 1976 S.C. 490 38 AIR 1974 S.C. 2249 39 AIR 1952 S.C. 181 40 AIR 1970 S.C. 679 41 1991(1) SCC 212 42 1994(2) SCC 204 43 2004(3) ALD 411 44 2004(5) ALT 634 45 2004(3) ALT 17 46 1995(2) SCC 117 47 2003(8) SCC 440 48 (2001(3) SCC 635 = AIR 2001 S.C. 1447) 49 (AIR 2000 S.C. 2487 = 2000(6) SCC 608) 50 2002(6) SCC 252 = AIR 2002 S.C. 2642 51 2004(7) SCC 670 52 AIR 2003 S.C. 1344 = 2003(4) SCC 289 53 2003(5) SCC 437 54 2005(1) ALT 69 55 AIR 1987 S.C. 251 56 AIR 1991 S.C. 1153 57 AIR 1997 S.C. 128 58 2003(12) SCC 627 = AIR 2004 S.C. 1194) 59 2004(2) SCC 150 = AIR 2004 S.C. 1402 60 (2002) 4 SCC 638 61 AIR 1962 S.C. 1183 62 (2004) 2 SCC 173 63 (2003) 6 SCC 675 64 (2004) 3 SCC 682 65 AIR 1950 S.C. 222 66 AIR 1954 S.C. 440 67 AIR 1966 S.C. 81 68 1995(2) SCC 584 69 1995(5) SCC 457 70 1995(1) SCC 421 HON’BLE SRI JUSTICE J.CHELAMESWAR HON'BLE SRI JUSTICE P.S. NARAYANA HON’BLE SRI JUSTICE B.SESHASAYANA REDDY W.P.No.14863 of 2004 & W.P.M.P.No.7444 of 2005 (per P.S.Narayana.,J) “The profession of law is called a noble profession. It does not remain noble merely by calling it as such unless there is a continued, corresponding and expected performance of this noble profession” observed the Apex Court in Satish Sharma Vs. Bar Council of A.P. . In Ramon Services Pvt. Ltd. Vs. Subhash Kapoor the learned Judges held that the lawyers are a force for the preservance and strengthening of Constitutional Government as they are guardians of the modern legal system. While dealing with the locus standi of lawyers in maintaining the Public Interest Litigation in relation to the matters concerned with the independence of judiciary in S.P. Gupta and others Vs. President of India and others it was held that there can be no doubt that the practicing lawyers have a vital interest in the independence of the judiciary and if any unconstitutional or illegal action is taken by the State or any public authority which has the effect of impairing the independence of the judiciary, they would certainly be interested in challenging the Constitutionality or illegality of such action. I n Venkat Rao Vs. Deputy Transport Commissioner and Secretary, Regional Transport Authority, Kakinada a learned Judge of this Court while dealing with the aspect of role of lawyers, observed at paras 47, 48 and 49 : “In view of the general importance of the question as to the Role of Lawyers, I propose to make few observations before parting away with the case. A lawyer is an integral part of administration of justice. Courts to a very large extent depend upon the learning, scholarship and wisdom of the Counsel appearing in matter. The Courts lean heavily upon the Counsel for guidance. True, every Advocate has right to give such advice to his client, which he bona fide believes to be true and correct. It may be part of his duty. But he has important responsibilities to the Court as well as to his client. A lawyer cannot be viewed as a hired gun. The Advocate is more than a mouthpiece. He owes allegiance to a higher cause. In the same case (1) supra – Rondel Vs. Worsley (1957(1) QB 443) Lord Pearce observed “that a lawyer has a duty to use the weapons of advocacy ‘in the pursuit of justice and to elucidate the truth in the public interest with an approach which is as based in favour of his client’s contentions, as public considerations allow (1969 1 AC 191). He becomes an officer of the Court and, like the Court itself, an instrument or agency to advance the ends of justice.” The experience of the Courts suggest that they rely heavily upon the integrity and fairness of the Counsel in the presentation of the case and drafting of the pleadings. In Rondel’s case Lord Morris observed that “to a certain extent every advocate is an amicus curiae”. Such is the importance attached to the legal profession by the Court. No Advocate has any right to withhold any material information and the relevant facts which may have bearing upon the result of the lis before the Court. There is no such privilege conferred upon any Counsel. Advocates are not entitled to advise their clients to withhold or suppress material information and relevant facts from the Court. The duty of an advocate is on the other hand is to advise the litigants to state all relevant facts.” 2. The question raised in the present Writ Petition is in relation to the appointment of Government Pleaders in Andhra Pradesh High Court, Andhra Pradesh Administrative Tribunal etc., on the ground that certain appointments are illegal, contrary to the Rules, non- compliance of the different conditions specified by the relevant Rules inclusive of inadequate representation to the Scheduled Castes and Scheduled Tribes etc., despite the rule of reservation which is expected to be followed in such appointments. SUBMISSIONS OF SRI THIMOTHY : 3. Sri Thimothy, the learned Counsel representing the petitioners had traced the historical background relating to the appointment of Law Officers in the High Court, Administrative Tribunal etc., and would maintain that public element is attached to these offices or the posts and hence necessarily the Rules in force may have to be followed. The learned Counsel also made certain submissions relating to the eligibility criteria, the condition relating to the Income-tax assessments and on facts pointed out that certain of the Government Pleaders do not satisfy the eligibility criteria. Several factual aspects had been narrated at length and Rules 4(3)(c), (7), 12, 13 14 of G.O.Ms.No.187 dated 6-12-2000 had been specifically pointed out. The learned Counsel also made certain submissions relating to the aspect of employment and appointment and also the aspect of public office, civil post and tenure post and the tests to be satisfied in relation to either a public office or a civil post. The learned Counsel also pointed out to Articles 60, 162 and 335 of the Constitution of India and would maintain that having framed the Rules the Government is bound to follow the Rules and the stand taken by the Government that these are only guidelines, definitely cannot be accepted since once such Rules are framed by them even in exercise of Article 162 of the Constitution of India though not under Article 309 of the Constitution of India, the Government is bound to follow such Rules and cannot escape taking a stand that those are mere executive instructions and hence not binding on the Government. The learned Counsel also made certain submissions relating to the policy, change of policy and the parameters and the limitations in this regard in relation to the power of the Government and also the power of the Courts to interfere with such decisions. The learned Counsel while making further submissions would maintain that as far as the violation of Presidential Order and zonalisation is concerned the said question needs no serious consideration at the hands of this Court. However, the learned Counsel would comment that in the light of the definition of “Law Officer” all the posts cannot be treated as one unit and there are separate categories and these are to be treated as separate units and horizontal and vertical reservations are to be given. The Counsel also would draw the attention of this Court to the preamble of the Constitution of India and stressed on the aspect of social justice. The learned Counsel pointed out to relevant portions of the counter affidavit and also the reply affidavits filed and would contend that it is clear that certain of the Government Pleaders are having less than three years I.T. Assessments and in this view of the matter also these appointments are to be held as invalid. The learned Counsel also placed reliance on the decision of the Apex Court in Indra Sawhney Vs. Union of India and also the decision of the Full Bench of this Court in A.P. State Backward Class Welfare Association Vs. State of A.P.Backward Classes Welfare (P-2) Department and Ajit Singh Vs. State of Punjab . The learned Counsel also placed strong reliance on a Judgment of the Division Bench of this Court in W.A.Nos.139 & 140 of 2003 (State of A.P. Vs. Lakshma Reddy and others, dated 16-9-2005) and would contend that in the light of the same, the instructions laid down in G.O.Ms.No.187 to be followed. The learned Counsel pointed out that the words “at least three years” in the Instruction 4(3)(c) to be understood as immediately preceding three years and there cannot be any discontinuity thereof. The learned Counsel also pointed out that certain had produced only bank challans and certain had filed certificates and at any rate whatever may be the interpretation that can be given to the words “at least three years”, respondents 13, 23, 24 and 29 are not eligible for appointment and this would show that there was total non-application of mind while making the appointments. The learned Counsel also placed reliance on certain other decisions to substantiate his contentions. SUBMISSIONS OF SRI TARAKAM : 4. Sri Tarakam, the learned Senior Counsel representing the implead- petitioner in W.P.M.P.No.7444/20045 would maintain that in the light of the facts narrated in detail, the implead-petitioner is vitally interested in the present lis and hence the implead-petitioner to be brought on record. The learned Senior Counsel while further elaborating his submissions had made a serious attempt to draw a distinction between ‘instructions’ and ‘rules’ which may be issued by the Government in exercise of powers under Article 162 of the Constitution of India. The learned Senior Counsel would maintain that the expression ‘rules’ would stand definitely on a higher footing when compared to the ‘instructions’ and hence the violation of such rules to be viewed with all seriousness by Courts of law. The learned Senior Counsel also pointed out to the percentage of reservation in the old rule and the present rule. The learned Senior Counsel also would contend that the office of the Government Pleader is a public office and hence whether it is a civil post or not would be irrelevant for the purpose of Articles 15 and 16 of the Constitution of India and the term ‘office’ would be sufficient. The learned Senior Counsel also pointed out to the fact that the rules of the year 1967 were framed while exercising powers under Article 309 of the Constitution of India and also had traced the series of events and the relevant G.Os. in this regard commencing from the beginning till G.O.Ms.No.187 dated 6- 12-2000. The learned Counsel in elaboration had pointed out to G.O.Ms.Nos.14, 15, 55, 57, 118, 158, and G.O.Rt.No.1575 and also would comment that having introduced the rule of reservation at a particular point of time, when the same is withdrawn without any acceptable reason the same is bad in law. The learned Counsel also pointed out to Article 16(4) of the Constitution of India and would contend that it is no doubt an enabling provision but in the light of rule 22 of A.P. State and Subordinate Service Rules, in the light of the background of the different Constitutional provisions, the rule of reservation is bound to be followed even in the appointments of Government Pleaders. The learned Senior Counsel also would maintain that the original rules were made with a view to translate the Constitutional philosophy into a reality and this Constitutional imperative to be followed and the Counsel also pointed out to the decision of the Cabinet in this regard and withdrawal of the same without any justifiable reason. The learned Counsel also would contend that making or unmaking of rule to be based on a valid reason, if not arbitrariness would come in and the same would be violative of Article 14 of the Constitution of India. The learned Senior Counsel also would point out that though in policy matters the power of judicial review would be limited, when there is infraction of the Constitutional provisions when the Court is satisfied relating to the arbitrariness the said decisions also can be set at naught by Courts of law. The learned Counsel also in detail pointed out to several of the present Rules governing the field and Articles 15, 16 and 338 of the Constitution of India. The learned Counsel also pointed out to G.O.Ms.No.118, which was kept in abeyance in G.O.Rt.No.1575 without any just or proper reason. The learned Counsel also placed reliance on certain decisions. SUBMISSIONS MADE BY ADVOCATE GENERAL : 5 . The learned Advocate General while making elaborate submissions would maintain that the appointments of respondents 2 to 30 in the Writ Petition as Government Pleaders are being questioned on certain grounds and in the light of the fact that an endeavour should be made to follow these rules as far as possible these rules cannot be said to be mandatory since merit and suitability also may have to be taken into consideration and as far as possible the guidelines specified in the rules may have to be followed. The learned Advocate General also had explained the Presidential Order in detail and would contend that the same is not relevant in the present context but however since an attempt was made to touch this aspect the same is being explained. The learned Counsel also had pointed out that 1967 Rules were framed under Article 309 of the Constitution of India. The historical events by virtue of which the old rules had undergone a metamorphosis ultimately culminating into the present Rules had been explained in detail. The directions given by the learned single Judge of this Court in W.P.No.9652/83 and subsequent thereto the view expressed by the Division Bench in V. Ramesh Vs. Government of Andhra Pradesh also was explained in detail. The relevant provisions of the Constitution of India and the rules had been pointed out in detail. It was specifically pointed out that G.O.Ms.No.187 as such had not been challenged but what had been challenged is the violation thereof and hence the limited question which may have to be decided is that whether these rules can be said to be mandatory or these rules are to be followed as far as possible in the light of the language employed in the rules. The Judgment of the Division Bench of this Court in the decision referred (8) supra was explained in detail. Under what circumstances W.P.No.2003/2000 was disposed of by the learned Judge of this Court also had been explained. The concept of “office”, “public office”, “post”, “civil post”, relevancy of Articles 309, 310, 311, 15, 16 and 162 of the Constitution of India and also Rules 4 and 7 of the rules specified in G.O.Ms.No.187 and the relevant rules and the State and Subordinate Service Rules also had been pointed out. The learned Advocate-General no doubt explained the zonalisation vis-à-vis the Presidential Order and would comment that in the light of the stand taken by the Counsel for the writ petitioner, lengthy submissions need not be advanced on this aspect. However, the merit and suitability to be observed had been stressed. The decisions Shrilekha Vidyarthi Vs. State of U.P. and State of U.P. Vs. U.P. State Law Officers Association had been well explained and it was contended that these decisions were rendered in the light of the arbitrary actions on the touchstone of Article 14 of the Constitution of India. The learned Advocate General also would submit that in Indra Sawhney’s case referred (5) supra the concept of technical posts had been discussed and the reservations to such posts had been deprecated and if the role of lawyers if taken into consideration these posts require specialization in the field of law and hence these can be treated as technical posts. The ratio and the observations made in Indra Sawhney’s case referred (5) supra had been highlighted and the relevant portions of several decisions of this Court also had been brought to the notice of this Court. The learned Advocate General also had stressed on the words “every endeavour to be made” and also the words “as far as possible” and would contend that in the light of the same it cannot be said that the observance of these rules either can be said to be imperative or mandatory. The learned Counsel also would maintain that even if certain of the respondents prima facie do not satisfy the requirement of being income tax assessees for at least three years prior to their appointments, as on today such respondents also satisfy the requirement and hence inasmuch as these are only instructions more in the nature of guidelines, on that ground the directions prayed for cannot be granted. Reliance also had been placed on P.Sesha Rao Vs. Government of Andhra Pradesh , Government of Andhra Pradesh Vs. Pushpinder Kaur , State of U.P. Vs. Johri Mal , State of U.P. Vs. Netra Pal Singh and Rajendra Singh Vs. State of U.P. to substantiate his contentions. Submissions of Sri Srinivas Reddy : 6. The learned Counsel representing the Government Pleaders had taken this Court through the counter affidavit filed by the Government and also in detail would explain what would be an Assessment Year for the purpose of reckoning Income-tax Assessments and had pointed out to the relevant portions of the counter affidavit filed by Ms.Rekha Prasad in particular. The learned Counsel also had explained the position of respondents 13, 23, 24 and 29 and also explained about the income tax assessments in relation to respondents 4 and 21. The learned Counsel also would maintain that the intention in specifying the requirement of being an income tax assessee may have to be taken into consideration. The Counsel also would maintain that the words “at least three years” may have to be interpreted as any three years prior to the appointment. Some additional material relating to the Income Tax assessments of Sri Suryanarayana and Sri Janakiram Reddy also had been produced and certain submissions were made in this regard. The learned Counsel also had drawn the attention of this Court to Section 2(7), Section 139(4) of the Income Tax Act and had explained that in the facts and circumstances of the case, the respondents are not disqualified from being appointed as Government Pleaders. The learned Counsel also would submit that in the light of the stand taken by the Government in the counter affidavit and also in the light of the material placed before this Court, it can be taken that none of the appointments are in violation of the Rules aforesaid and even otherwise it is for the Government to see and act in conformity with the said Rules and these Rules being only executive instructions cannot be enforced by issuance of positive directions while exercising the writ jurisdiction. The learned Counsel also pointed out to variations in the counter affidavit filed by the Government and also in the counter affidavits filed by the respective Government Pleaders and would contend that in the light of the clear stand taken by the Government Pleaders the Writ Petition is liable to be dismissed. 7. Heard the Counsel on record. 8. A practicing Advocate belonging to Scheduled Caste (C) category and having a standing of about 12 years at the Bar had filed the Writ Petition praying for issuance of a writ, order or direction more in the nature of writ of mandamus calling for connected records relating to the appointment of respondents 2 to 30 as Government Pleaders of High Court of Andhra Pradesh, A.P. Administrative Tribunal, Land Grabbing Court, Central Administrative Tribunal and declare the same as illegal, improper, unjust, contrary to law and violative of Articles 15(4), 16(4) and 335 of the Constitution of India, set aside the appointments and direct the 1st respondent to make appointments by following Rule 4(3)(c), Rule 7(a), 7(b), 7(c), 7(d) of G.O.Ms.No.187, Law Department, dated 6-12-2000 and A.P. Public Employment (Organization of Local Cadres and Regulation of Direct Recruitment) Order 1975 and pass such other suitable orders. 9. The writ petitioner pleaded in the affidavit filed in support of the Writ Petition as hereunder : It was stated that the 1st respondent by G.O.Rt.No.994 to 1019, Law (L) Department dated 10-6-2004 had appointed 26 Government Pleaders in the High Court of A.P. and A.P. Administrative Tribunal and they are as follows : S.No. Name Category Native District 1 Mrs.Niraja Sudhakar Reddy O.C. Chittoor 2 R.Satyanarayana Raju O.C. East Godavari 3 SriAddepalli Suryanarayana O.C. East Godavari 4 Sri D.Panduranga Reddy O.C. Kurnool 5 Sri Gande Anandam O.C. Medak 6 Sri Katikaneni Ramesh O.C. Hyderabad 7 Sri M.Vishnuvardhan Reddy O.C. Nalgonda 8 Sri K.K.Mahinder Reddy O.C. Karimnagar 9 Sri P.Lakshma Reddy O.C. Medak 10 Sri N.Ashok Kumar B.C. Mahaboobnagar 11 Sri N.Muralidhar Reddy O.C. Nellore 12 Ms.S.Rekha Prasad O.C. Anantapur 13 Sri D.S.N.V. Prasada Babu O.C. West Godavari 14 Sri Fazal Yousufuddin B.C. Hyderabad 15 Sri Sripada Prabhakar O.C. Hyderabad 16 Sri P.Vinod Kumar S.C. Hyderabad 17 Sri E.Seshagiri Rao B.C. Khammam 18 Ms.Kambhampati Malleshwari O.C. Prakasam 19 Sri K.Janakiram Reddy O.C. Kurnool 20 Sri Korrapati Subba Rao O.C. Prakasam 21 Sri A.Giridhar Rao O.C. Mahaboobnagar 22 Sri S.Ganghadara Reddy O.C. Cuddapah 23 Sri Godi Babji S.C. West Godavari 24 Ms.B.V. Seshaveni O.C. East Godavari 25 Sri Ch.Srinivas O.C. Krishna 26 Sri G.Seenakumar B.C. Chittoor It was further stated that the 1st respondent on 29-6-2004 had appointed two Government Pleaders in Land Grabbing Court and one Government Pleader in Central Administrative Tribunal and they are as follows : S.No. Name Category Native District 27 Sri A.Abhishek Reddy O.C. Ranga Reddy 28 Sri J.Satya Prasad S.C. East Godavari 29 Sri D.Y. Shetty B.C. East Godavari It was stated that these appointments are governed by G.O.Ms.No.187, Law Department, dated 6-12-2000 and as per rule 4(3) of the said G.O. no person shall be included in the panel for the appointment as Government Pleader or Special Counsel unless he (a) has atleast 10 years standing as an Advocate of a High Court or two or more such High Courts in succession (b) is below 65 years of age on the date of inclusion in the panel, and (c) is an income tax assessee for a period of atleast 3 years prior to his appointment, or (d) has practiced at the Bar for a period of five years in the case of appointment of members of the A.P. Higher Judicial Service or the A.P. Secretariat Service. It was stated that Rule 7 of the