Case: State of U.P Vs. U.P. State Law Officers' Association

any court other than the High Court. Their appointments are made through open competition from among those who are eligible for appointment and strictly on the basis of merit as evidenced by the particulars of their practice, opinions of the District Magistrate and the District Judge and also after taking into consideration their character and conduct. Their appointment is in the first instance for one year. It is only after their satisfactory performance during that period that a deed of engagement is given to them, and even then the engagement is to be for a term not exceeding three years. The renewal of their further term again depends upon the quality of work and conduct, capacity as a lawyer, professional conduct, public reputation in general, and character and integrity as certified by the District Magistrate and the District Judge. For the said purpose, the District Magistrate and the District Judge is required to maintain a character roll and a record of the work done by the officer and the capacity displayed by him in discharge of the work. His work is also subject to strict supervision. The shortcomings in the work are required to be brought to the notice of the Legal Remembrancer. It will thus be seen that the appointment of the two sets of officers viz., the Government Counsel in the High Court with whom we are concerned and the District Government Counsel with whom the said decision was concerned, are made by dissimilar procedures. The latter are not appointed as a part of the spoils system. Having been selected on merit and for no other consideration, they are entitled to continue in their office for the period of the contract of their engagement and they can be removed only for valid reasons. The people are interested in their continuance for the period of their contracts and in their non- substitution by those whom may come in through the spoils system. It is in these circumstances that this Court held that the wholesale termination of their services was arbitrary and violative of Article 14 of the Constitution. The ratio of the said decision can hardly be applied to the appointments of the law officers in the High Court whose appointment itself was arbitrary and was made in disregard of Article 14 of the Constitution as pointed out above. What is further, since the appointment of District Government Counsel is made strictly on the basis of comparative merits and after screening at different levels, the termination of their services is not consistent with the public interests. We are, therefore, of the view that the High Court committed a patent error of law in setting aside the order dated 23.7.1990 terminating the services of the respondent-law officers.21. Coming now to the High Courts order setting aside the Government Order dated 26.5.1990 by which the Government had abolished the system of Brief Holders, and instead the power was given to the Legal Remembrancer to appoint special counsel for special matters, we are of the view that the High Court has committed a still graver error. As has been pointed out above, Chapter VI of the said Manual deals with the system of appointing a panel of Brief Holders in the High Court. The appointment of the Lawyers on the panel of Brief Holders is made by the State Government only in consultation with the Advocate General who is its own officer and from among the advocate of the High Court who have completed a minimum of five years practice at the Bar. The selection of Brief Holders is not made after open competition. Their appointment is purely at the discretion of the State Government. The Brief Holders are further appointed to handle that work which cannot be attended to by the Government Advocate and Chief Standing Counsel. No salary or any other kind of monthly remuneration is payable to them. They are paid per brief handled by them. They are not barred from private practice or from accepting cases against the Government. It will thus be apparent that their appointment is in supernumerary capacity. It is necessitated because there may be work which cannot be attended to by the Government Advocate and the Chief Standing Counsel. They are not assured of any regular work much less any regular fee or remuneration. They get briefs only if the Government Advocate and Chief Standing Counsel are over worked and not otherwise. They are like ad hoc counsel engaged for doing a particular work when available. Their only qualification is that they are on the panel of the counsel to be so appointed for handling the surplus work. We are, therefore, at a loss to understand as to how any fault can be found with the Government if the Government has now thought it fit to abolish the said system and to appoint each time special counsel for special cases in their place.22. It is evident from the tenor of the High Court judgment that the Legal Remembrancer has been made a special target and has been treated almost like the villain of the piece. The judgment ignores that the Legal Remembrancer as a responsible officer and part of the government always had a role to play in the appointments of the counsel, in the distribution of the work among them and also in supervising their work and in sanctioning their bills. For this purpose, we have referred to the relevant provisions of Chapters V, VI and VII of the Manual in extenso. Even a cursory reading of the said chapters, will show that no material additional power has been vested in him by the Government on account of the present measures. In any case, if the Government has chosen to do so, the Legal Remembrancer can hardly be blamed for the same. Certainly he does not deserve the kind of compliments which the High Court has chosen to pay him. The comments and observations made against him are, therefore, both unjustified and unfortunate.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Suffice it for the present to bear in mind that the appointment and conditions of engagement of District Government Counsel have been dealt with in the said Manual separately from the appointment of the Chief Standing Counsel, Standing Counsel and Brief Holders in the Highthe 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 ag 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 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.The mode of appointment of lawyers for the public bodies, therefore, has to be in conformity with the obligation cast on them to select the most meritorious. An open invitation to the lawyers to compete for the posts is by far the best mode of such selection. But sometimes the best may not compete or a competent candidate may not be available from among the competitors. In such circumstances, the public bodies may resort to other methods such as inviting and appointing the best available, although he may not have applied for the post. Whatever the method adopted, it must be shown that the search for the meritorious was undertaken and the appointments were made only on the basis of the merits and not for any otherbeen selected on merit and for no other consideration, they are entitled to continue in their office for the period of the contract of their engagement and they can be removed only for valid reasons. The people are interested in their continuance for the period of their contracts and in their nonsubstitution by those whom may come in through the spoils system. It is in these circumstances that this Court held that the wholesale termination of their services was arbitrary and violative of Article 14 of the Constitution. The ratio of the said decision can hardly be applied to the appointments of the law officers in the High Court whose appointment itself was arbitrary and was made in disregard of Article 14 of the Constitution as pointed out above. What is further, since the appointment of District Government Counsel is made strictly on the basis of comparative merits and after screening at different levels, the termination of their services is not consistent with the public interests. We are, therefore, of the view that the High Court committed a patent error of law in setting aside the order dated 23.7.1990 terminating the services of theofficers.21. Coming now to the High Courts order setting aside the Government Order dated 26.5.1990 by which the Government had abolished the system of Brief Holders, and instead the power was given to the Legal Remembrancer to appoint special counsel for special matters, we are of the view that the High Court has committed a still graver error. As has been pointed out above, Chapter VI of the said Manual deals with the system of appointing a panel of Brief Holders in the High Court. The appointment of the Lawyers on the panel of Brief Holders is made by the State Government only in consultation with the Advocate General who is its own officer and from among the advocate of the High Court who have completed a minimum of five years practice at the Bar. The selection of Brief Holders is not made after open competition. Their appointment is purely at the discretion of the State Government. The Brief Holders are further appointed to handle that work which cannot be attended to by the Government Advocate and Chief Standing Counsel. No salary or any other kind of monthly remuneration is payable to them. They are paid per brief handled by them. They are not barred from private practice or from accepting cases against the Government. It will thus be apparent that their appointment is in supernumerary capacity. It is necessitated because there may be work which cannot be attended to by the Government Advocate and the Chief Standing Counsel. They are not assured of any regular work much less any regular fee or remuneration. They get briefs only if the Government Advocate and Chief Standing Counsel are over worked and not otherwise. They are like ad hoc counsel engaged for doing a particular work when available. Their only qualification is that they are on the panel of the counsel to be so appointed for handling the surplus work. We are, therefore, at a loss to understand as to how any fault can be found with the Government if the Government has now thought it fit to abolish the said system and to appoint each time special counsel for special cases in their place.22. It is evident from the tenor of the High Court judgment that the Legal Remembrancer has been made a special target and has been treated almost like the villain of the piece. The judgment ignores that the Legal Remembrancer as a responsible officer and part of the government always had a role to play in the appointments of the counsel, in the distribution of the work among them and also in supervising their work and in sanctioning their bills. For this purpose, we have referred to the relevant provisions of Chapters V, VI and VII of the Manual in extenso. Even a cursory reading of the said chapters, will show that no material additional power has been vested in him by the Government on account of the present measures. In any case, if the Government has chosen to do so, the Legal Remembrancer can hardly be blamed for the same. Certainly he does not deserve the kind of compliments which the High Court has chosen to pay him. The comments and observations made against him are, therefore, both unjustified and unfortunate.