*THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY + WRIT PETITION No.12537 of 2009 % Dated: 31-07-2009 # T. Kumar Babu … Petitioner VERSUS $ The Government of A.P., Law (L) Department, rep., by its Secretary, Legal Affairs, Secretariat Buildings, Hyderabad and ten others. … Respondents ! Counsel for the petitioner : Sri T.Kumar Babu (party in person) ^ Counsel for the respondents : Advocate General <GIST: > HEAD NOTE: ? Cases referred 1. 2006 (4) ALT 66 11. AIR 1983 SC 1235 2. (1963) 33 Company Cases 265 12. (1975) 3 SCC 503 3. AIR 1994 Allahabad 349 13. AIR 1973 SC 303 (1) 4. AIR 1997 SC 3871 (1) 14. AIR 1980 SC 1992 (1) 5. AIR 1974 SC 252 15. AIR 1979 SC 429 (1) 6. (1990) 8 SCC 381 16. AIR 1991 SC 537 7. AIR 2001 SC 80 17. AIR 1994 SC 1654 8. AIR 1989 SC 1899 18. 2003 (6) ALT 30 (DB) 9. AIR 1996 SC 11 (1) 19. (2004) 4 SCC 714 10. (1976) 2 SCC 862 20. (1979) 3 SCC 489 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY FRIDAY, THE THIRTY FIRST DAY JULY, TWO THOUSAND NINE ONLY WRIT PETITION No.12537 of 2009 Between: T.Kumar Babu … Petitioner And: The Government of Andhra Pradesh, Law (L) Department, reptd., by its Secretary, Legal Affairs, Secretariat Buildings, Hyderabad and ten others. … Respondents Counsel for the Petitioner: Sri T.Kumar Babu (party in person). Counsel for the Respondents: Advocate General. This Court made the following: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.12537 of 2009 JUDGMENT:- The petitioner, who is an Advocate by profession, filed this writ petition assailing appointment of respondent Nos.2 to 11 (herein referred to as the p riv a te respondents) vide G.O.Rt.No.958, dated 16.06.2009 as Government Pleaders of this Court as being arbitrary and contrary to the Andhra Pradesh Law Officers (Appointment and Conditions of Service) Instructions 2000 (for short, “the Instructions”) published in G.O.Ms.No.187, dated 06.12.2000. In his affidavit, the petitioner averred that he is an applicant for the post of Law Officer in the High Court of Andhra Pradesh, that by the impugned G.O., respondent No.1 appointed 29 Government Pleaders for the High Court, Andhra Pradesh Administrative Tribunal, Special Court established under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 and the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad for a period of 3 years commencing from 16.06.2009 and that the private respondents are also among the said appointees. He further averred that clause 8 of the Instructions provides that the Law Officers shall ordinarily be appointed for a term of three years. The Law Officers so appointed may be considered for a second term, if the Government are satisfied that they have proven efficiency, high rate of success and good performance and for a third term in exceptional cases and that the private respondents having been initially appointed on 11.06.2004 for a period of three years, their term was extended until further orders and that they were appointed for a third term under the impugned G.O. It is the case of the petitioner that in the absence of the instructions providing for extension of time, the continuance of the private respondents beyond the initial term of three years is deemed to be their appointment for a second term and that their further appointment under the impugned G.O., shall be deemed to be for a third term, which could be done only in exceptional cases as per the abovementioned instructions. T h e petitioner pleaded that the private respondents do not fall under the category of “exceptional cases” and that as they are politically highly influential, they managed to get appointed for a third term by trampling over the rights of other eligible and more meritorious Advocates. According to the petitioner, the private respondents' appointments were made purely for extraneous considerations, but not on merit and suitability. T h e petitioner maintained that though the instructions are not statutory in nature, yet they are binding on the State and its actions are liable to be interfered by this Court, if they are vitiated by mala fides, irrationality, arbitrariness or extraneous considerations. T h e petitioner further pleaded that having framed the instructions, the Government is bound to follow the same. At the stage of admission, this Court felt it appropriate to put respondent No.1 to notice while keeping open the option of issuing notices to the private respondents at a later stage. A detailed counter affidavit is filed by the Secretary to Government of Andhra Pradesh, Legal Affairs on behalf of respondent No.1. The substance of the contents of the counter affidavit is mentioned hereunder. There is no conscious infraction or violation of the instructions. The guidelines contained in the instructions were borne in mind during the process of consultation between the Government and the learned Advocate General and that the engagement of the private respondents is accordingly done. The petitioner is not entitled to seek enforcement of the instructions through a Mandamus in view of the Full Bench Judgment of this Court in S. Nagender vs. Government of Andhra Pradesh[1]. While the Government applied its mind having due regard to the instructions and made the appointments in complete compliance with the said instructions and even if there are any violations or departure from the instructions, the same is in public interest and on the basis of the objective consideration of the performance of each of respondent Nos.2 to 11. It is not correct to state that the private respondents were engaged for a third term, because the extension of their term beyond the initial tenure of three years under G.O.Rt.No.1088, dated 05.07.2007 “until further orders” does not amount to their appointment for a second term and for a tenure of three years within the meaning of clause 8 of the instructions. Therefore, continuance of the private respondents between 05.07.2007 and 16.06.2009 cannot be construed as their appointment for a second term. The parameters applied while considering the suitability of the private respondents are as under: a. Their basic understanding of the law. b. Professional integrity, merit and suitability. c. Promptness in pleadings. d. Demeanor in Court room appearances. e. Quality of assistance to the Courts. f. The rate of success, and g. Efficiency. Each one of the private respondents, on application of the parameters referred to above, was found tobe exceptional and deserving re-engagement. The decision making process leading to the selection and engagement of the private respondents as Law Officers was undertaken with due regard to the guidance offered by the instructions and the appraisal of their performance in the past. The consolidated monthly statements of the government pleaders were forwarded to the Government and all the engagements were made in public interest on a bona fide and objective assessment of their suitability to perform the functions attached to the Law Officer of the Government. No arbitrariness is involved in the said appointments. The allegation that the private respondents are politically highly influential and their appointments trampled over the rights of other eligible and meritorious Advocates are denied. The further allegation that the engagements are made purely on personal or political considerations is denied as untenable and without substance. At the hearing, Sri Kumar Babu, the party-in- person, made strenuous efforts to present his case. He reiterated his plea in the affidavit that the appointment of the private respondents is for a third term. He placed reliance on the judgment of the Punjab and Haryana High Court in National Industrial Corporation Ltd. vs. Registrar of Companies, Punjab[2], the judgment of the Allahabad High Court in Sri Surendra Kumar Gupta vs. State of U.P.[3] and that of the Supreme Court in Collector of Central Excise, Patna vs. Usha Martin Industries[4] in support of his above contention. The petitioner further argued that there is nothing on record to show that the private respondents have exceptional merit for being appointed for the third term. The petitioner also referred to the instructions and submitted that in the absence of the material showing proven efficiency, high rate of success and good performance of the private respondents, which is a sine qua non for appointing Law Officers for the second term, respondent No.1 ought not to have appointed them, even assuming that the private respondents are appointed only for the second term. The petitioner sought to draw a distinction between the instructions and the guidelines and argued that while in the latter case the guidelines were only recommendatory and do not strictly bind respondent No.1 to follow them, in the former case every instruction is binding on the government. In this regard, he placed reliance on Black's Dictionary of Law, 4th Edition and the Chamber's 21st Century Dictionary. He also relied on the judgment of the Supreme Court in Laljee Dubey and others vs. Union of India and others[5]. The petitioner further argued that respondent No.1 having framed its own policy through the instructions is bound by such policy and is therefore liable to carry out the instructions strictly in their letter and spirit. In support of this contention, the petitioner placed reliance on the following judgments – Rameshwar Prasad vs. Managing Director, U.P. Rajkiya Nirman Nigam Limited and others[6], Collector of Central Excise, Patna (4 supra), Centre for Public Interest Litigation and another vs. Union of India and others[7], Asif Hameed and others vs. State of J & K and others[8], Tata Cellular vs. Union of India[9], The General Manager, Mysore State Road Transport Corporation vs. Devraj Urs and another[10], Suman Gupta and others vs. State of J & K and others[11], Dr. Amarjit Singh Ahluwalia vs. The State of Pubjab and others[12], Union of India vs. K.P. Joseph and others[13], M/s. Kasturi Lal Lakshmi Reddy vs. The State of J & K and another[14] and The Manager, Government Branch Press and another vs. D.B. Belliappa[15]. The petitioner further argued that there is a distinction between the administrative decision and administrative action. In the former case, the decision constitutes the policy which binds decision maker and all others and that every administrative action should be in consonance with such administrative decision. He stated that having regard to the sanctity and binding force of the administrative decision every such decision is gazetted terming it as a manuscript (G.O.Ms.), whereas in the case of administrative action, the decisions are not gazetted and are described as documents issued in routine (G.O.Rt.). He sought to distinguish the Full Bench Judgment of this Court in S. Nagender (1 supra) by stating that most of the findings in the said judgment pertain to the only guideline contained in the instructions, namely, clause 7 and that the findings to the extent they pertain to the instructions are contrary to the judgments of the Supreme Court referred to above. Opposing the contentions of the petitioner, the learned Advocate General argued that the appointments of the private respondents are primarily and essentially in the nature of professional engagements and they have no public sanctity. The government formulated instructions and guidelines, which are not statutory and enforceable. The government took into consideration the over all points in the guidelines and decided that there is no need to strictly adhere to the same. An infraction of guidelines need not vitiate the decision. The learned Advocate General maintained that the judgments cited by the petitioner pertain to the cases where rights of parties are involved or largesses are distributed. He submitted that the Full Bench judgment of this Court in S.Nagender (1 supra) is a complete answer to the various contentions raised by the petitioner. He finally submitted that while no formal procedure was followed to assess the efficiency, performance and merit of the private respondents, the Law Secretary and the Advocate General examined all those aspects and recommended to the government on the basis of which the appointments of private respondents were made. Let me first dispose of the contention of the petitioner that the appointment of the private respondents should be deemed to be for a third term. As noted above, though respondent No.1 denied the petitioner’s plea in this regard and maintained that the appointments were for the second term only, I felt it unnecessary to delve into this aspect, since respondent No.1 had taken the stance that on application of the parameters referred to in the counter-affidavit, each of the private respondents was found to be exceptional, deserving re-engagement. Therefore, the appointment of the private respondents can be tested by applying the parameter of exceptional merit needed for appointment for a third term. The linchpin of the petitioner’s argument is that clause 8 of the instructions bind respondent No.1 and violation of the said clause results in invalidation of the appointments of the private respondents. In order to test this contention, it is necessary to briefly delve into the legal position discernible from the decided case law. In Kumari Shrilekha Vidyarthi vs. State of U.P. and others[16] the Supreme Court held that the appointment of District Government Counsel by the State Government cannot be said to be only a professional engagement like between a private client and his lawyer or that it is purely contractual with no public element attached to it, which may be terminated at any time at the sweet will of the Government excluding judicial review, that the presence of the pubic element attached to the office or post of District Government Counsel is sufficient to attract Article 14 of the Constitution and bring the question of validity of termination of appointments of all District Counsel within the scope of judicial review and that the expression “professional engagement” in para 7 of Legal Remembrancer’s (Government Manual governing the appointments of Government counsel) is used to distinguish it from appointment to a post under the Government in the strict sense. The Supreme Court further held that the same, however, does not necessarily mean that a person, who is not a Government servant, holding a post under the Government does not hold any public office and the engagement is purely private with no public element attached to it. While setting aside the termination of Government Pleaders en masse, the Supreme Court held that the Constitution does not envisage or permit unfairness or unreasonableness in State actions in any sphere of its activity contrary to the professed ideals in the Preamble and that exclusion of Article 14 in contractual matters is not permissible in constitutional scheme. In State of U.P. vs. U.P. State Law Officers Association[17] the Supreme Court held that the lawyer of the Government or a public body was not its employee but was a professional practitioner engaged to do the specified work though they are described as their Law Officers and the relationship between the Government and its Law Officers is similar to the relationship between the lawyer and the private client. A Division Bench of this Court in Government of Andhra Pradesh, Law Department, Hyderabad and others vs. Pushpindar Kaur[18] held that the executive instructions regulating the appointments and conditions of service of the Law Officers of the Government of Andhra Pradesh are non-statutory in nature, that the executive instructions were obviously issued by the Government to structure the discretion of those who are involved in the process of making appointments of the Law Officers to represent the State and its instrumentalities and other authorities in various Courts including the High Court of Andhra Pradesh and the Andhra Pradesh Administrative Tribunal and that they are not recruited and appointed into any service as such. In State of U.P. and another vs. Johrimal[19] the Supreme Court held that appointment of Law Officers is in the nature of professional engagement and not an appointment to the civil post, that the executive instructions framed by the State Government are not traceable to the proviso to Article 309 of the Constitution and the persons so appointed discharge public functions. It was further held that the duty of the Law Officers involves an element of public interest, but in engaging them, the concept of public office does not come into play. The three Judge Bench, which decided this case, while emphasizing on the freedom available to the Government in choosing its counsel and absence of any right in any person to claim appointment, however, held as under: “The District Government Counsel represent the States. They, thus, represent the interest of general public before a court of law. The Public Prosecutors while presenting the prosecution case have a duty to see that innocent persons may not be convicted as well as an accused guilty of commission of crimes does not go unpunished. Maintenance of law and order in the society and, thus, to some extent maintenance of rule of law which is the basic fibre for upholding the rule of democracy lies in their hands. The Government counsel, thus must have character, competence, sufficient experience as also standing at the Bar. The need for employing meritorious and competent persons to keep the standard of the high offices cannot be minimized. The holders of the post have a public duty to perform. Public element is, thus, involved therein. The provision of Article 14, however, will be attracted to a limited extent as the functionaries named in the Code of Criminal Procedure are public functionaries. They also have a public duty to perform. If the State fails to discharge its public duty or act in defiance, deviation and departure of the principles of law, the Court may interfere. The Court may also interfere when the legal policy laid down by the Government for the purpose of such appointments is departed from or mandatory provisions of law are not complied with. Judicial review can also be resorted to, if a holder of a public office is sought to be removed for reason dehors the statute.” (Emphasis added) A Full Bench of this Court in S. Nagender (1 supra) in the context of considering the challenge to appointments of some Government Pleaders on the ground of violation of the guidelines and some of the clauses contained in the same instructions, which are the subject matter of the present writ petition, reiterated the legal principle reflected in the previous judgments of the Supreme Court that the appointments of the office of Government Pleader are not to a post borne on the State cadre and is purely contractual and that the instructions do not confer any enforceable right in favour of a third party in order to make the appointments already made in violation of the instructions illegal. It further held that Courts would normally be reluctant to interfere with the assessment of the learned Advocate General barring in exceptional cases where the appointment is palpably against the public interest or mala fide. The Full Bench held that in the absence of any such foundation in the writ petition regarding prejudice to public interest and mala fides, no interference with the appointments was warranted. An analysis of the case law, referred to above, reveals that while in Kumari Shrilekha Vidyarthi (16 supra), the Supreme Court has placed the relationship of the Government and its counsel on a far higher pedestal than that of between a lawyer and his private client, a different note was struck in State of U.P. (17 supra). However, the three Judge Bench judgment in State of U.P. (19 supra) held in unequivocal terms that the holders of the post have a public duty to perform and public element is thus involved therein and that if the State fails to discharge its public duty or acts in defiance, deviation and departure of the principles of law, or legal policy laid down by the Government for the purpose of such appointments is departed, juridical review can be resorted to. The petitioner took pains to convince this Court that though the instructions do not have force of law, they are nevertheless binding on the State Government and the appointments made in deviation of these instructions are liable to be invalidated. The learned Advocate General does not dispute the obligation of the Government to follow the instructions from a broader perspective and maintained that at the same time it is not incumbent upon the Government to scrupulously follow these instructions as if they are statutory provisions. Though I find force in the submission of the petitioner that an instruction stands on a better pedestal than a mere guideline as could be gathered from the meanings from the dictionaries cited and also some of the judgments referred by him, the submission of the learned Advocate General that even such instructions cannot be equated to the status of a statutory provision for strict compliance contains equal merit. A small infraction of the instruction without serious adverse consequences can always be condoned. However, while implementing the policy governing appointments to the posts of Government and Assistant Government Pleaders and other Law Officers, the State Government must adhere to the policy laid down and the norms it professed. The oft quoted passage from the judgment of the Supreme Court in Ramana Dayaram Shetty vs. International Airport Authority of India and others[20], which attained the status of locus classicus is apt to be recalled and reproduced in this context. “It is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was enunciated by Mr. Justice Frankfurter in Viteralli v. Saton (359 U S. 535: Law Ed (Second series) 1012) where the learned Judge said: An executive agency must be rigorously held to the standards by which it professes its action to be judged …... Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed ..... This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword. This Court accepted the rule as valid and applicable in India in A.S. Ahluwalia v. Punjab ((1975) 3 SCR 82: (1975) 3 SCC 503, 504) and in subsequent decision given in Sudhdev v. Bhagatram ((1975) 3 SCR 619: (1975) 1 SCC 421, 462), Mathew, J., quoted the above referred observations of Mr. Justice Frankfurter with approval. It may be noted that this rule, though supportable also as an emanation from Article 14, does not rest merely on that article. It has an independent existence apart from Article 14. It is a rule of administrative law which has been judicially evolved as a check against exercise of arbitrary power by the executive authority. If we turn to the judgment of Mr. Justice Frankfurter and examine it, we find that he has not sought to draw support for the rule from the equality clause of the United States Constitution, but evolved it purely as a rule of administrative law. Even in England, the recent trend in administrative law is in that direction as is evident from what is stated at pages 540-41 in Prof. Wade's “Administrative Law”, 4th edition. There is no reason why we should hesitate to adopt this rule as a part of our continually expanding administrative law. Today with tremendous expansion of welfare and social service functions, increasing control of material and economic resources and large scale assumption of industrial and commercial activities by the State, the power of the executive Government to affect the lives of the people is steadily growing. The attainment of socio- economic justice being a conscious end of State policy, there is a vast and inevitable increase in the frequency with which ordinary citizens come into relationship of direct encounter with State power-holders. This renders it necessary to structure and restrict the