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PETITIONER:

STATE OF U.P.

Vs.

RESPONDENT:

U.P. STATE LAW OFFICERS ASSN.

DATE OF JUDGMENT25/01/1993

BENCH:

SAWANT, P.B.

BENCH:

SAWANT, P.B.

VENKATACHALA N. (J)

CITATION:

1994 AIR 1654 1994 SCR (1) 348

1994 SCC (2) 204 JT 1994 (1) 225

1994 SCALE (1)254

ACT:

HEADNOTE:

JUDGMENT:

The Judgment of the Court was delivered by

SAWANT,J.-Leave granted in SLP Nos. 14525 and 4912 of 199 1.

2. This group of appeals raises an important question with

regard to the status of the law officers engaged by the

State Government to conduct the cases on its behalf in the

High Court. Incidentally, questions bearing on the

profession of the lawyer, his relationship with his client,

and the relationship of the Government and for that matter

of all the public bodies with the lawyers they engage for

conducting their matters, also fall for consideration.

3. At the relevant time, there were 64 law officers

working for the U.P. State Government in the High Court of

Allahabad including its Lucknow Bench. By an order dated

July 23, 1990, the State Government removed 26 of the said

law officers. Out of these, 9 law officers had been working

for a long time, some of them for more than 15 years. Their

continuation as law officers was till further orders.

Another 11 officers out of the removed officers had been

appointed in 1982-83 and they continued to work till the

date of their removal without renewal of their term. The

remaining six law officers were appointed variously in March

and May 1989 for a period of one year only with a

stipulation that they could be removed any time without

giving any reason whatsoever. Their term had also not been

renewed after the expiry of the initial period of their

appointment. There is no dispute that in cases of all these

26 officers and indeed in cases of all the law officers

appointed in the High Court, the terms of appointment

contained a condition that notwithstanding the period for

which they were appointed, they could be removed at any time

without giving any reason whatsoever.

4. It appears that before issuance of the aforesaid order

of removal dated July 23, 1990, the State Government had

issued another order on May 26, 1990 by which the system of

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engaging Brief Holders in the High Court was abolished with

immediate effect. By yet another order of June 28, 1990,

the Government had authorised the Legal Remembrancer to

appoint special counsel for any special matter before the

High Court. The order also gave him financial and

administrative powers which were earlier exercised by the

Chief Standing Counsel and the Public Prosecutor. He was

further given power to distribute the work to the various

Standing Counsel and the Additional Public Prosecutors.

5. Aggrieved by the order dated July 23, 1990, the law

officers who were removed from their posts, and aggrieved by

the order of May 26, 1990, the then Brief Holders approached

the High Court by a writ petition contending, among other

things, that their removal was against the principles of

natural justice and that they could be removed from their

offices only for valid reasons. The High Court accepted the

contention of the law officers and by its impugned judgment,

quashed the orders removing them from their

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offices. The High Court also quashed the order dated May

26, 1990 passed by the State Government by which the

Government had abolished the system of the engagement of

Brief Holders and directed the respondents to continue the

said system. The High Court further quashed all the fresh

appointments made by the State Government and directed the

payment of remuneration to the officers who were removed,

from the date of their removal. In the course of the

judgment, the High Court has also made observations against

the Legal Remembrancer. These appeals are, therefore,

preferred by the State as well as those who were newly

appointed by the State Government as its law officers.

6. Before we refer to the contentions advanced on both

sides, it would be worthwhile to explain the system which

was prevalent in the State for engaging lawyers to attend to

the government work in the High Court and also the role

assigned to the Legal Remembrancer vis-a-vis the government

lawyers. Chapter V of the Legal Remembrancer's Manual

(hereinafter referred to as the 'Manual') deals with the

Chief Standing Counsel and the Standing Counsel in the High

Court and Chapter VI of the said Manual deals with Brief

Holders in the High Court. Chapter VII deals with District

Government Counsel with whom we are not concerned in the

present appeals. However, that chapter has a bearing on the

contentions advanced before us and we will deal with the

same while discussing the contentions. 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 High Court.

7. Paragraph 5.01 of Chapter V states that there shall be

one Chief Standing Counsel for the High Court at Allahabad

and another for its Lucknow Bench and such number of

Standing Counsel at both the said benches as the State

Government may from time to time appoint. Paragraph 5.02

states that in making the appointments of the Chief Standing

Counsel as well as the Standing Counsel, the State

Government "may, if considered necessary" take into

consideration the views of the Advocate-General or the Chief

Justice or any Judges of the High Court or of any committee

that "may be" constituted for the purpose. Paragraph 5.03

then refers to the responsibility of the Chief Standing

Counsel for conducting the cases. It states that he shall

be responsible for the conduct of all civil cases in the

High Court to which the State Government is a party except

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such cases or class of cases as are excluded by the State

Government by general or special order. It further states

that the Chief Standing Counsel shall work subject to such

general or special directions as may be issued by the

Advocate-General or the Legal Remembrancer from time to

time. Sub-paragraph (2) of the said paragraph states that

the Government may entrust any case of special importance to

the Advocate-General or to a special counsel. Paragraph

5.04 refers to the duties of the Chief Standing Counsel.

These duties include (i) representation of the State or of

any authority within the State in such other civil cases in

which he might be directed or required to appear by the

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Government, the Legal Remembrancer or the High Court; (ii)

to present to the High Court under instructions from the

Legal Remembrancer, appeals, or applications or petitions on

behalf of the State; (iii) to advise the Government or the

Legal Remembrancer when so required in any matter of a civil

nature; (iv) to make suitable arrangements for the conduct

of civil cases in the High Court in accordance with any

general or special order of the Government or the Legal

Remembrancer; (v) to assign cases to the Standing Counsel

and then to the Brief Holders appointed by the Government;

(vi) to report to the Legal Remembrancer the cases in which

the State Counsel had been adversely commented upon by the

High Court; (vii) to procure and submit to the Legal

Remembrancer copies of any judgment or order of the High

Court that the Government may require or where immediate

steps by the State Government are necessary; (viii) to ask

for instructions from the Legal Remembrancer in regard to

the contest of the matters on behalf of the State

Government; (ix) to report to the Legal Remembrancer the

receipt of any process on behalf of the Government and to

furnish him with a copy of the memo of appeal, revision or

application as the case may be; (x) to send his opinion to

the Legal Remembrancer as to whether any case is fit for

further appeal to the Supreme Court and to submit to the

Legal Remembrancer such returns as the latter may from time

to time prescribe or require.

8. Paragraph 5.05 refers to the duties of Standing Counsel

and states that the Standing Counsel shall generally assist

the Chief Standing Counsel in performing his duties and

functions and shall perform such functions and conduct such

cases as may be allotted to them by the Chief Standing

Counsel or by any general or special order of the

Government. Paragraph 5.07 places restriction on private

practice of both the Chief Standing Counsel and Standing

Counsel. It states that they shall not, save with the

special permission, appear against the State in any civil

case or proceeding nor shall they advise any private party

regarding any civil case which might be pending or is likely

to be instituted against the State or any State authority.

It also states that they shall not, without the permission

of the Legal Remembrancer communicate directly or indirectly

to any person or authority the contents of any documents or

convey any information which has come to their possession or

knowledge in the course of their duties in any case in which

they appear on behalf of the State Government. They shall

also not accept any appointment as Director of any company

without the previous sanction of the Government. Paragraph

5.08.requires the Chief Standing Counsel to arrange and

regulate work in such a manner that an adequate number of

Standing Counsel and/or Brief Holders are present in the

High Court on every day on which cases under his charge are

fixed for hearing. Paragraph 5.10 gives power to the State

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Government to transfer the Chief Standing Counsel or any

Standing Counsel from Allahabad to Lucknow and vice versa in

consultation with the Advocate-General for such period and

on such terms as may be determined by the Government. They

may also be asked by the Legal Remembrancer to appear on

behalf of the State

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Government in any civil case in any Court in the State in or

outside Allahabad or Lucknow. Paragraph 5.16 requires that

except when otherwise expressly provided, all communications

between the Government and the Chief Standing Counsel and

the Standing Counsel shall be made through the Legal

Remembrancer except in cases of urgency. But even in such

cases, the copy of the communications shall invariably be

sent to the Legal Remembrancer. It is not necessary to

refer to the other provisions of this chapter.

9. Paragraph 6.02 of Chapter VI which deals with the Brief

Holders in the High Court refers to the appointment of a

panel of Brief Holders in the High Court. It states that

the State Government may in consultation with the Advocate-

General appoint such number of Brief Holders from amongst

the practising advocates in the High Court as it may deem

necessary from time to time to conduct such civil and

criminal cases in the High Court as may be entrusted to

them. The paragraph makes it clear that such appointments "

shall not be deemed to be appointment to any office or post

but only professional engagement which shall be terminable

on either side at will". It requires a minimum of 5 years'

practice at the bar for appointment as a Brief Holder.

Paragraph 6.03 states that a Brief Holder shall ordinarily

be appointed in the first instance for a period not

exceeding one year and that the subsequent appointments may

be for such number of years not exceeding three as the State

Government may deem necessary from time to time. The

remuneration of the Brief Holders is referred to at

Paragraph 6.04. On the civil side, the Brief Holder is

entitled to the same fee as would be payable to a Standing

Counsel for doing similar work and on the criminal side, the

remuneration is mentioned in terms of fee per day

irrespective of the number of cases conducted and the hours

of work put in by him. No salary or any other kind of

monthly remuneration is payable to him. In case of dispute

with regard to the fee, the decision of the Legal

Remembrancer is to be final. Paragraph 6.05 states that it

is the Government Advocate who shall allot criminal cases

and the Chief Standing Counsel who shall allot civil cases

to the Brief Holders and shall also exercise supervision and

control over them. Paragraph 6.06 then states that the

Government Advocate and the Chief Standing Counsel shall

entrust only such cases to the Brief Holders which cannot be

attended to by them or other law officers under them and

which are not required to be conducted personally by them.

It also details classes of cases which shall not,

ordinarily, be entrusted to the Brief Holders. Paragraph

6.07 requires the entrustment of cases to the Brief Holders

by rotation in a manner as may ensure an equitable

distribution of work among all of them except where the

Government Advocate or the Chief Standing Counsel may in the

interest of the better prosecution of cases think it

necessary to depart from the rule. Paragraph 6.1 1 gives

the Brief Holder, the right to private practice and also for

accepting cases against the Government. Paragraph 6.13

refers to the manner of removal of Brief Holder and states

that the Government may at any time without prior notice and

without assigning any reason whatsoever, remove the name of

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the Brief Holder from

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its panel. Paragraph 6.16 prohibits Brief Holders from

participating in any political activity so long as they work

as Brief Holders. The other provisions of the chapter are

not relevant for our purpose.

10. The conditions of service of the Government Advocate and

Additional Government Advocate, Deputy Government Advocate

or Assistant Government Advocate for conducting criminal

matters in the High Court are the same as that of the Chief

Standing Counsel and the Standing Counsel respectively.

11. Since the respondents have relied heavily on a judgment

of this Court in Shrilekha Vidyarthi v. State of U. P. 1

which deals specifically with appointments and removal of

the District Government Counsel and the Additional/Assistant

District Government Counsel, and the appellants have tried

to distinguish the said judgment, it is necessary to examine

the relevant conditions of service of the District

Government Counsel as detailed in Chapter VII of the said

Manual. The District Government Counsel are legal

practitioners appointed by the State Government to conduct

in any court other than the High Court such civil, criminal

or revenue cases on behalf of the State Government as may be

assigned to them either generally or specially (paragraph

7.01). The Government have also the power to appoint

Additional or Assistant District Government Counsel or

Subordinate District Government Counsel to assist the

District Government Counsel (paragraph 7.02). Paragraph 7.03

relates to the appointment of the District Government

Counsel. Whenever the post of any of the District

Government Counsel is likely to fall vacant or when a new

post has been created, the District Magistrate concerned has

to notify the vacancy to the members of the Bar. The

qualification for appointment as a District Government

Counsel, Assistant District Government Counsel and Sub-

District Government Counsel is 10 years', 7 years' and 5

years' practice respectively. The District Magistrate shall

also ask those who want to be considered for appointment to

give their names to him with their particulars such as age,

length of practice at the Bar, proficiency in Hindi, income

tax paid by him on professional income during the last three

years, details of the work handled by them during the

preceding two years duly verified by the court and also to

state whether they have practised on the criminal, civil or

revenue side. The District Government Counsel and the legal

practitioners of the neighbouring districts are also

eligible to be considered for the said post and they have to

forward their particulars through their District Magistrate

who has to offer his own remarks on the particulars so

given. When the names are so received, they have to be

considered by the District Magistrate in consultation with

the District Judge. The District Magistrate has to give due

weight to the claim of the existing incumbents if any, and

has to submit confidentially in the order of preference the

names of the legal practitioners to the Legal Remembrancer.

He has also to give his opinion, particularly, about the

character, professional conduct and integrity of the

candidate and

1 (1991) 1 SCC 212: 1991 SCC (L&S) 742

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forward to the Legal Remembrancer the opinion of the

District Judge on the suitability and merits of each

candidate. The District Magistrate has also to send to the

Legal Remembrancer, the bio data submitted by other

candidates with such comments that he and the District Judge

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may like to make. The District Magistrate is also required

to recommend the name of any person who may be considered

fit by him although he has not formally supplied his

particulars. Paragraph 7.04 then states that on receipt of

the recommendations of the District Magistrate, the Legal

Remembrancer may, if necessary, make such further inquiry

about the candidate as he may deem necessary and then submit

the recommendations of the District Magistrate along with

his own opinion for the orders of the Government whose

decision shall be final. Paragraph 7.06 states that the

legal practitioners who are finally selected by the

Government may be appointed as District Government Counsel

for one year. At the end of the period of one year, the

District Magistrate after consulting the District Judge has

to submit a report on his work and conduct to the Legal

Remembrancer together with the statement of work done by

him. If his work and conduct are found to be

unsatisfactory, the matter has to be reported to the

Government for orders. If the report on his work and

conduct is satisfactory, the appointee may be furnished with

a deed of engagement in Form No. 1 annexed to the Manual and

the engagement is to be for a term not exceeding three

years. The said paragraph makes it explicitly clear that

the appointment of a legal practitioner as District

Government Counsel is only a professional engagement

terminable at will on either side and is not an appointment

to a post under the Government. Accordingly, the Government

reserves the power to terminate the appointment of any

District Government Counsel at any time without assigning

any reason. Paragraph 7.07 bars the District Government

Counsel from participating in political activities.

Paragraph 7.08 deals with the renewal of the term of the

District Government Counsel and states that at least three

months before the expiry of the term, the District

Magistrate shall after consulting the District Judge and

considering the incumbent's past record of work and conduct

and age, report to the Legal Remembrancer together with a

statement of work done by him, whether in his opinion, the

term of appointment of such counsel should be renewed or

not. The District Magistrate has to send along with his own

recommendations, the opinion of the District Judge. While

giving his recommendations for renewal of the term, the

District Judge has to give an estimate of the quality of the

counsel's work from the judicial standpoint, his capacity as

a lawyer and his professional conduct. Similarly, the

District Magistrate while giving his report about the

suitability of the District Government Counsel from the

administrative point of view, has to report on the

candidate's public reputation in general, his character,

integrity and professional conduct. If the Government

agrees with the recommendations of the District Magistrate

for the renewal of the term of the Government Counsel, it

may pass orders for reappointing him for a period not

exceeding three years. If the Government decides not to

reappoint any Government

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Counsel, the Legal Remembrancer may call upon the District

Magistrate to forward fresh recommendations. This procedure

is to be followed on the expiry of every successive period

of renewed appointment. For the above purpose, the District

Magistrate and the District Judge are required to keep a

character roll and maintain a record of the work done by the

District Government Counsel and the capacity displayed by

him in the discharge of his work. The Government (in

Judicial Advice Section) is also required to keep similar

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character roll based upon the copy of the confidential

reports recorded by the District Magistrate and the District

Judge, and forward it to the Legal Remembrancer. The

shortcomings on the part of the District Government Counsel

have at once to be brought to the notice of the Legal

Remembrancer. The District Government Counsel (Civil) is

prohibited altogether from advising or appearing against the

State or Central Government in any civil case pertaining to

the district or the local area to which he is appointed.

However, he may appear against the State or the Central

Government with the prior permission of the Legal

Remembrancer in any civil case in which he has not been

retained by the Government. Subject to this restriction,

the District Government Counsel (Civil) has a right to

private practices

12. The District Government Counsel (Civil) is prohibited

from becoming a counsel of any Municipality or Municipal

Corporation or other local authorities of the area to which

he is appointed. The Assistant District Government Counsel

(Civil) is prohibited from appearing in suits instituted by

private parties against the State or Union of India in

courts in which according to the allocation of work, he is

alone authorised to represent the State. He is, however,

free to take up private cases against the State or Union of

India in other courts. Similar restriction is placed on the

Sub-District Government Counsel. As regards, the District

Government Counsel (Criminal) and Additional District

Government Counsel (Criminal), they are prohibited from

appearing for any private party in any criminal case.

However, with certain exceptions, with the prior approval of

the Legal Remembrancer, they are allowed to appear. Similar

restrictions are placed on District Government Counsel

(Revenue). Paragraph 7.18 states that the District

Government Counsel in a district shall be subject to the

supervision of the Legal Remembrancer as well as the

District Magistrate. Their confidential reports are also to

be submitted by the District Magistrate to the Government

through the Legal Remembrancer. Paragraphs 7.19 to 7.22

deal with the duties of the District Government Counsel

(Civil), (Criminal), (Revenue) respectively. Paragraphs

7.24 and paragraphs 7.26 to 7.45 deal with the fees payable

to the District Government Counsel. Paragraph 7.61 gives

power to the Legal Remembrancer to forfeit the fees payable

to the District Government Counsel in certain cases. The

conditions of service of the Additional/ Assistant

/Subordinate District Government Counsel are similar to

those of the District Government Counsel mutatis mutandis.

13. The appointment of lawyers by the Government and the

public bodies to conduct work on their behalf, and their

subsequent removal from

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such appointment have to be examined from three different

angles, viz., the nature of the legal profession, the

interests of the public and the modes of the appointment and

removal.

14. Legal profession is essentially a service-oriented

profession. The ancestor of today's lawyer was no more than

a spokesman who rendered his services to the needy members

of the society by articulating their case before' the

authorities that be. The services were rendered without

regard to the remuneration received or to be received. With

the growth of litigation, lawyering became a full-time

occupation and most of the lawyers came to depend upon-it as

the sole source of livelihood. The nature of the service

rendered by the lawyers was private till the Government and

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the public bodies started engaging them to conduct cases on

their behalf. The Government and the public bodies engaged

the services of the lawyers purely on a contractual basis

either for a specified case or for a specified or an

unspecified period. Although the 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 a full-time employment.

15. The relationship between the lawyer and his client is

one of trust and confidence. The client engages a lawyer

for personal reasons and is at liberty to leave him also,

for the same reasons. He is under no obligation to give

reasons for withdrawing his brief from his lawyer. The

lawyer in turn is not an agent of his client but his

dignified, responsible spokesman. He is not bound to tell

the court every fact or urge every proposition of law which

his client wants him to do, however irrelevant it may be.

He is essentially an adviser to his client and is rightly

called a counsel in some jurisdictions. Once acquainted

with the facts of the case, it is the lawyer's discretion to

choose the facts and the points of law which he would

advance. Being 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 to 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.

16. Over the years, the public sector has grown

considerably, and with its extension and expansion, the

number of lawyers engaged in the public sector has increased

noticeably so much so that it can truly be said that today

there is a public sector in the legal profession as well.

The expansion of the public sector activities has

necessitated the maintenance of a permanent panel of

lawyers. Some of the lawyers are also in full-time

employment of

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the public institutions as their law officers. The profile

of the legal profession has thus undergone a change.

17. The Government or the public body represents public

interests, and whoever is in charge of running their

affairs, is no more than a trustee or a custodian of the

public interests. The protection of the public interests to

the maximum extent and in the best possible manner is his

primary duty. The public bodies are, therefore, under an

obligation to the society to take the best possible steps to

safeguard its interests. This obligation imposes on them

the duty to engage the most competent servants, agents.,

advisers, spokesmen and representatives for conducting their

affairs. Hence, in the selection of their lawyers, they are

duty-bound to make earnest efforts to find the best from

among those available at the particular time. This is more

so because the claims of and against the public bodies are

generally monetarily substantial and socially crucial with

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far-reaching consequences.

18. 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 merit and not for any other

consideration.

19. It would be evident from Chapter V of the said Manual

that to appoint the Chief Standing Counsel, the Standing

Counsel and the. Government Advocate, Additional Government

Advocate, Deputy Government Advocate and Assistant

Government Advocate, the State Government is under no

obligation to consult even its Advocate-General much less

the Chief Justice or any of the judges of the High Court or

to take into consideration, the views of any committee that

" may" be constituted for the purpose. The State

Government has a discretion. It may or may not ascertain

the views of any of them while making the said appointments.

Even where it chooses to consult them, their views are not

binding on it. The appointments may, therefore, be made on

considerations other than merit and there exists no

provision to prevent such appointments. The method of

appointment is indeed not calculated to ensure that the

meritorious alone will always be appointed or that the

appointments made will not be on considerations other than

merit. In the absence of guidelines, the appointments may

be made purely on personal or political considerations, and

be arbitrary. This being so those who come to be appointed

by such arbitrary procedure can hardly complain if the

termination of their appointment is equally arbitrary.

Those who come by the back door have to go by the same door.

This is more so when the order of appointment itself

stipulates that the appointment is terminable at any time

without assigning any reason. Such appointments are made,

accepted and understood by both

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sides to be purely professional engagements till they last.

The fact that they are made by public bodies cannot vest

them with additional sanctity. Every appointment made to a

public office, howsoever made, is not necessarily, vested

with public sanctity. There is, therefore, no public

interest involved in: saving all appointments irrespective

of their mode. From the inception some engagements and

contracts may be the product of the operation of the spoils

system. There need be no legal anxiety to save them.

20. As the facts narrated earlier show, out of 26

respondents-law officers, the period of contract of nine of

them had expired and they were continued till further

orders. The remaining seventeen had continued after the

expiry of their initial term without even formal orders of

extension. In other words, none of the 26 officers had any

right to hold the office on the date of their removal, even

under the initial terms of appointment which stipulated the

contractual period. This is apart from the fact that the

terms of the contracts also provided that the appointment

could be terminated at any time without assigning reason.

The reliance placed by the respondents in this behalf on

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Shrilekha Vidyarthi v. State of U.P. 1 is misplaced for the

obvious reason that the decision relates to the appointment

of the District Government Counsel and the

Additional/Assistant District Government Counsel who are the

law officers appointed by the State Government to conduct

civil, criminal and revenue cases in 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 are 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 who may come in through the spoils system. It is

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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 July

23, 1990 terminating the services of the respondents-law

officers.

21. Coming now to the High Court's order setting aside the

government order dated May 26, 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

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consultation with the Advocate-General who is its own

officer and from among the advocates 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 overworked 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

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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.

23. In the result, we set aside the judgment of the High

Court and declare that both the orders dated July 23, 1990

and May 26, 1990 are valid and proper. We further hold that

the termination of the appointment of the respondents-law

officers was valid and proper. We also hold that the

direction given by the High Court to the Government to

continue the system of Brief Holders is unjustified and the

same stands quashed. We also set aside the order of the

High Court quashing the fresh appointments and directing

payments to the officers whose appointments were terminated.

The appeals are allowed accordingly. However, in the

circumstances of the case, there shall be no order as to

costs.

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