K.J. George v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HON'BLE THE CHIEF JUSTICE MRS. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN FRIDAY, THE 22ND DAY OF FEBRUARY 2013/3RD PHALGUNA 1934 ## **W.P.(C).No.27358 of 2012 (T)** ----------------------------------------------------- PETITIONER:- --------------------- K.J.GEORGE, AGED 63 YEARS, S/O. K.S. JOSEPH, ADVOCATE, RESIDING AT KUNNUMPURATH HOUSE, MANATH ROAD, VAZHAKKALA, KAKKANAD.P.O., KOCHI - 30. BY ADVS.SRI.JOHN JOSEPH (ROY) SRI.P.A.CHANDRAN RESPONDENTS:- ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. ## 2. THE ADVOCATE GENERAL, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 018. R1 &R2 BY SPECIAL GOVERNMENT PLEADER SMT.GIRIJA GOPAL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/02/2013, THE COURT ON 22/02/2013, DELIVERED THE FOLLOWING:- W.P.(C).NO.27358 OF 2012 ## **APPENDIX** PETITIONER'S EXHIBITS:------------------------------------EXT.P1 - TRUE COPY OF THE BIO-DATA SUBMITTED TO THE 2ND RESPONDENT DATED 9.10.2011. EXT.P2 - TRUE COPY OF THE CASTE CERTIFICATE NO.K.DIS/17479/87/A7 DATED 31.12.1987. EXT.P3 - TRUE COPY OF THE APPLICATION SUBMITTED TO THE HON'BLE CHIEF MINISTER DATED 16.05.2011. EXT.P4 - TRUE COPY OF THE SEPARATE LIST THAT CONSISTED ONLY 6 PERSONS. - EXT.P5 - TRUE COPY OF THE RELEVANT PAGE OF THE GENERAL LIST PREPARED BY THE ADVOCATE GENERAL DATED 26.12.2011. - EXT.P6 - TRUE COPY OF THE COVERING LETTER DATED 26.12.2011. EXT.P7 - TRUE COPY OF THE LIST NO.21566/B1/12/LAW OF QUALIFIED ADVOCATES FOR THE APPOINTMENT OF GOVT. LAW OFFICERS DATED 12.01.2012. RESPONDENT'S EXHIBITS:- ----------------------------------------NIL. - true copy - Manjula Chellur, C.J. & K.Vinod Chandran, J. -------------------------------------W.P.(C).No.27358 of 2012 -------------------------------------Dated this, the 22[nd] day of February, 2013 ## JUDGMENT ## K.Vinod Chandran,J.: The petitioner, an Advocate practising before this Court, styles himself as a _pro bono publico_ and raises the issue of there being no adequate representation of Scheduled Caste/Schedule Tribe candidates among the Government Pleaders appointed by the Government to conduct cases on its behalf before this Court. 2. We are not convinced that this is a public interest litigation, since the petitioner himself a member of the Scheduled Tribe community, is one of the Advocates who was included in the panel sent by the Advocate General; but was not appointed by the Government. The petitioner contends that the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 prescribes, by proviso to Rule 4, for appointment of Scheduled Caste/Scheduled Tribe candidates and the same having not been followed, prays for the following reliefs:- (i) To issue a declaration that Scheduled Caste and Scheduled Tribes are constitutionally entitled to get WP(C).No.27358/2012 **- 2 -** adequate reservation in the appointment of Government Law Officer in the High Court of Kerala under the Kerala Public Service Act and the Government Law Officers Rules. - (ii) To issue a writ of mandamus commanding the respondents to comply with the mandatory Rules and Reservation as applicable in the public appointments in respect of Scheduled Caste/Scheduled Tribe Advocate in the matter of appointment of Government Law Officers in the Hon'ble High Court and to consider the eligibility of the petitioner for appointment as requested in Ext.P1 and P2. - (iii) To issue a writ of mandamus to consider all other Scheduled Caste/Scheduled Tribe Advocates who are serially numbered in Ext.P3 as 37,171, 236, 348, 468 and 525 as members of SC and Serial No.136 as ST for appointment as Government Law Officers or Special Government Pleaders or Standing Counsels as the case may be”. Prayer (ii), according to us, takes away the above case from the ambit of a Public Interest Litigation. 3. We are also not convinced that there is any mandatory rule for reservation of Scheduled Caste and Scheduled Tribe candidates in the appointments made as per the aforementioned rules and the State cannot be compelled to appoint Advocates who, according to the State, may not be fit to handle cases on their behalf. WP(C).No.27358/2012 **- 3 -** Primarily the proviso to Rule 4 only mandates inclusion of at least two names of Scheduled Caste/Scheduled Tribe candidates for every ten vacancies reported. The rule along with its proviso is extracted hereunder:- ## **“4. Method of appointment of Government Law** **Officers in the High Court:-** Appointment as Public Prosecutor, Senior Government Pleader, Government Pleader and Liaison Officer shall be made by the Government from a panel of names of Advocates furnished by the Advocate General. Appointment as Public Prosecutor shall be made in consultation with the High Court. Provided that in furnishing the panel of names, the Advocate General shall include at least two names of Scheduled Castes/Scheduled Tribes Communities for every ten vacancies reported”. 4. The Government has filed a counter affidavit, contending that 110 Advocates were appointed as Government Pleaders/Special Government Pleaders/Senior Government Pleaders from a panel forwarded by the learned Advocate General. It is also an admitted fact that 21 persons belonging to Scheduled Caste and Scheduled Tribe candidates found a place in the panel list which, according to us, complied with the proviso to Rule 4, going by the number of persons WP(C).No.27358/2012 **- 4 -** who were eventually appointed. However, from among the 21 SC/ST candidates, only 6 were appointed by the Government to conduct their cases. 5. We notice that the term of appointment of Government Law Officers in the High Court, as per Rule 6, is only for a period of three years, however, with the right conferred on the Government to make re-appointments for a further period not exceeding three years at a time. Rule 17 also provides for termination of appointment before the expiry of the term of his appointment without assigning any reasons therefor on the sole condition that the termination shall be with one month's notice or one months salary in lieu of such notice. 6. A Division Bench of this Court had, in _**Mohammed Ashraff v. State of Kerala**_ **[1991 (2) KLT 818],** considered Rule 17 in the context of termination of services of certain Government Pleaders being challenged as violative of Article 14. We extract paragraph 16 of the said judgment: “While the Supreme Court in Shrilekha Vidyarthi's has stated in what circumstances orders of termination of services of Government Pleaders can be treated as ex facie arbitrary, decisions of this Court have laid down guidelines as to when such termination can be treated as being for good reasons. We shall now refer to them. It has been stated that a member WP(C).No.27358/2012 **- 5 -** of the Bar, belongs to a noble and learned profession, and he cannot even submit an application seeking appointment as Government Pleader. The relationship between Government and its counsels is qualitatively different from that between master and servant. It is essentially a position which requires mutual confidence and trust: Mrs.Baby George v. State of Kerala, 1973 KLJ 923. As such, no member of the profession would (or should) cling on to file or a client, the moment the client is seen to show the slightest dissatisfaction about counsel's conduct (or services): T.D.Rajalakshmi v. State of Kerala, O.P.No.8374 of 1984-F dated 8.10.1984. Going by the rationale of the work which a Government Pleader has to perform, it is (perhaps) only proper that the Government have the power given to them to terminate the services without “assigning” any reason: T.D.Rajalakshmi v. State of Kerala, (D.B.), W.A.No.497 of 1984 dated 20.11.1984, which, we regard, is to be subject to the condition that valid reasons, in fact otherwise exist, or are discernible, though not actually “assigned” in the order of termination. The relationship being fiduciary is on a higher plane, in a different context and at a different level. Though it may be an office under the State, it is one which necessitates an extraordinary degree of confidence on the part of the State. To compel the State to continue to deal with a Law Officer irrespective of other circumstances would be an arbitrary imposition of a service of a Law Officer on the Government and may also be contrary to public policy: Kunjukrishnan Nair v. State of Kerala, 1988 (2) KLT 1015. A lawyer has to be a person in whom the WP(C).No.27358/2012 **- 6 -** Government has confidence: P.K.Kunjukrishnan Nair v. State of Kerala, (D.B.), W.A.No.240 of 1989 dated 26.6.1989”. 7. We are in perfect agreement with the declarations made in the various judgments cited therein that though the post of Government Pleader is an officer under the State, it is one necessitating an extraordinary degree of confidence and the relationship is qualitatively different from that between a master and servant. Just as no Advocate is expected to retain a brief against the desire of a client, a Government Pleader also holding a position of trust _vis-a-vis_ the Government cannot hold the same against the wishes of the Government. That is what the Division Bench held in the context of termination as provided in Rule 17. As in termination so in appointment. The traditions and values ingrained in the legal profession over the years frowns down upon solicitation of work which is also statutorily prohibited by Section VI of Chapter II of Part VI of the Bar Council of India Rules. The right to be represented by a counsel of one's choice is a right enshrined in Chapter III of the Constitution of India. Such privilege also cannot be denied to the Government who, at any given point of time, going by sheer numbers, is the party litigant in the maximum number of litigations. WP(C).No.27358/2012 **- 7 -** 8. It is also apposite that another Division Bench, considering the “actual practice” contemplated by the aforementioned rules had again occasion to consider the role of the Government Pleader in _**George Varghese v. State of Kerala**_ **[2002 (2) KLT 263]** and it was held so: _“It is in public interest that government Law Officers are selected only from amongst qualified and competent persons so that interests of the State and the public is not prejudicially affected”._ It was also held that if sufficient number of Scheduled Caste/ Scheduled Tribe candidates are not available to be included in the panel to be recommended to the State Government, such a deficiency could not be treated as non-compliance with the proviso to Rule 4. We have also noticed that in the instant case the proviso was complied with. However, in appointing the Government Pleaders to conduct the cases before this Court, the Government exercised its discretion and appointed persons of its choice, who, according to the Government, are trustworthy and competent. That is not to say for a moment that the Advocates excluded are not trustworthy; but they do not enjoy the confidence of the State and the State's policies being subject of maximum number of litigations before this Court, it is not for this Court WP(C).No.27358/2012 **- 8 -** to direct appointment of persons belonging to any community or group, especially in the context of there being no rules of reservation for the appointment. The appointment, in any event, is not a regular appointment. We are convinced that neither can the private grievance of thepetitioner be redressed; nor is there any discernible public interest. In the circumstances stated above, we dismiss the writ petition as being devoid of merit, leaving the parties to suffer their respective costs. Sd/Manjula Chellur, Chief Justice Sd/K.Vinod Chandran, Judge vku/ - true copy -