State of Kerala and Others v. RadhaKrishnan Nair G.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 23[RD] DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943** ## **OP(KAT) NO. 15 OF 2022** **ARISING OUT OF THE IMPUGNED FINAL ORDER DATED 01.07.2019 IN O.A NO.2014/2018 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM BENCH** ## **PETITIONERS/RESPONDENTS IN O.A:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT DEPARTMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001, KERALA.** - **2 THE SECRETARY TO THE GOVERNMENT FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001, KERALA.** - **3 THE CHIEF ENGINEER(ADMINISTRATION) PUBLIC WORKS DEPARTMENT, PUBLIC OFFICE BUILDING, MUSEUM P. O., THIRUVANTHAPURAM, PIN – 695001, KERALA.** - **4 THE EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT (ROADS AND BRIDGES), KOLLAM- 691013** - **5 THE ASSISTANT EXECUTIVE ENGINEER PWD BUILDING SUB DIVISION, PUNALUR, KOLLAM, PIN - 691305** - **6 THE ASSISTANT ENGINEER PWD ROADS SECTION, ANCHAL P.O, KOLLAM, PIN – 691306, KERALA.** **SRI.ASOK M.CHERIAN, ADDL.ADVOCATE GENERAL** **SRI. SAIGI JACOB PALATTY, SR.GOVT.PLEADER** O.P(KAT) No.15 of 2022 2 **RESPONDENT/APPLICANT IN O.A:** **RADHAKRISHNAN NAIR G., S/O GOPALAN NAIR CASUAL PART TIME SWEEPER, OFFICE OF THE ASSISTANT ENGINEER, PWD ROAD SECTION, ANCHAL, KOLLAM-691306, RESIDING AT KALEELAZHIKATHU VEEDU, ALAYAMON P.O., KOLLAM – 691 306.** **BY ADVS. M.V.THAMBAN R.REJI THARA THAMBAN B.BIPIN ARUN BOSE SUNEESH KUMAR R.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 23.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P(KAT) No.15 of 2022 3 ## **(CR)** ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** **=================================** ## **O.P(KAT) No.15 of 2022** [ _arising out of the impugned final order dated 01.07.2019 in O.A No.2014/2018 on the file of the KAT, Tvm. Bench_ ] **=================================** Dated this the 23[rd ] day of February, 2022 ## **JUDGMENT** ## **Alexander Thomas, J.** The final order of the Tribunal at Ext.P-3 herein rendered on 01.07.2019 in the instant original application, O.A No.2014/2018 rendered by the Kerala Administrative Tribunal, Thiruvananthapuram Bench is under challenge before us in the original petition filed under Articles 226 & 227 of the Constitution of India. The respondents in the said O.A are the petitioners in this O.P and the sole applicant in the above O.A has been arrayed as the sole respondent in this O.P. 2. The sole applicant in the O.A has filed the instant Ext.P-1 original application, O.A No.2014/2018 before the Kerala Administrative Tribunal, Thiruvananthapuram Bench with the following prayers : - _“i) To issue a declaration that on the basis of Annexure A2 government order, the applicant is entitled regularization as Regular Part-time Sweeper at the office of the Assistant Engineer, PWD Road Section, Anchal, Kollam District, w.e.f_ O.P(KAT) No.15 of 2022 4 _18.06.2001._ - _ii) To issue a further declaration that Annexure A9 government letter issued by the 1[st] respondent is illegal, arbitrary, discriminatory and against the spirit of Annexure A2 government order._ - _iii) To issue a further declaration that Annexure A10 government circular is illegal, arbitrary, discriminatory, against the very purpose of Annexure A2 government order, unsustainable and not applicable to the case of the applicant._ - _iv) To call for the records leading upto Annexure A10 and set aside Annexure A9 and Annexure A10._ - _v) To issue a direction, directing the respondent to regularize the service of the applicant as Regular Part-time Sweeper on the basis of Annexure A2 government order, at the office of the Assistant Engineer, PWD Road Section, Anchal, Kollam District, w.e.f 18.06.2001, with all consequential benefits including arrears of salary and other service benefits._ - _vi) To issue such other orders as this Hon'ble Tribunal may deem fit and proper in circumstances of this case and award exemplary cost of this proceedings to the petitioner.”_ 3. The Tribunal after hearing both sides has rendered the aforementioned impugned Ext.P-3 final order in the said O.A on 01.07.2019, whereby the above O.A has been finally disposed with the clear finding that the applicant herein is fully entitled for getting regularization as Part-Time Sweeper, in terms of para.8 of Annexure-A2 G.O(P)No.501/2005/Fin. dated 25.11.2005, with all consequential benefits. It is the abovesaid verdict of the Tribunal at Ext.P-3 herein that is under challenge in the above original petition filed at the instance of the O.P(KAT) No.15 of 2022 5 State of Kerala and the departmental officers concerned. 4. Heard Sri.Asok M.Cherian, learned Additional Advocate General instructed and assisted by Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the petitioners in the O.P/respondents in the O.A and Sri.M.V.Thamban, learned counsel appearing for the sole respondent in the O.P/sole applicant in the O.A. 5. The original applicant has been engaged as Casual Sweeper in the office of the Assistant Engineer, Public Works Department (Road Section), Anchal, Kollam w.e.f 01.11.1998 on a fixed monthly remuneration. The sweeping area of the said office premises, where the applicant has been employed as Sweeper was 102.94 Sq.M. at the relevant time, as can be seen from Annexure-A1 certificate issued by the Assistant Engineer of the Public Works Department (PWD). For compliance of the directions issued by this Court in the judgment dated 18.06.2004 in W.P(C) No.30927/2003 & 47 other connected cases, the case in _**Mercy** v._ _**State of Kerala**_ [2004 (2) KLT 848], was affirmed by the judgment dated 12.08.2005 of a Division Bench of this Court in W.A No.1863/2004 & connected cases. The competent authority of the State Government has framed a comprehensive scheme for regularization of such Casual O.P(KAT) No.15 of 2022 6 Sweepers, as per Annexure-A2 G.O(P) No.501/2005/Fin. dated 25.11.2005. The main conditions for securing the benefit of regularization as per Annexure-A2 G.O dated 25.11.2005, are that the Casual Sweeper should have been in service as on 25.11.2005 (date of issuance of Annexure-A2 G.O dated 25.11.2005) and the sweeping area of the premises should be 100 Sq.M or above. If these two vital conditions are fulfilled, then it has been ordered by the Government in para.8 of Annexure-A2 G.O that the post of Part Time Sweeper shall be created w.e.f the date of appointment of the incumbent as casual sweeper or from 18.06.2001 (three years prior to the date of the judgment dated 18.06.2004 in W.P(C) No.30927/2003) and that accordingly, the casual sweeper should be regularized in service, with all consequential benefits. So further it appears that in a case where the casual sweeper was not in service as on 18.06.2001, but on a subsequent date, but before 25.11.2005, then the regularization will be effected from the actual date of appointment, which is after 18.06.2001, but before 25.11.2005, as the case may be. A procedure is also prescribed in Annexure-A2 G.O, whereby it is the duty of the head of the office to ensure that the measurement of the sweeping area of the office premises in question is considered, where the O.P(KAT) No.15 of 2022 7 casual sweeper has been employed, in accordance with the norms for measurement laid down in Appendix-1 of that G.O and such measurement has to be done with notice to the affected sweeper and the proforma for getting the benefit of regularization should be duly filled up by the head of the office and the signature of the casual sweeper should also be obtained in the said proforma and then the same has to be forwarded to the Government for getting the benefit of regularization, as ordered above. 6. In the instant case, the office premises, where the applicant was working, was initially functioning in a rented premises as a temporary arrangement. Later, the office premises was shifted to a permanent building of the department. It is common ground that the office premises was functioning in the rented premises at the time of issuance of Annexure-A1 G.O dated 25.11.2005 and thereafter, it was shifted to the permanent premises. As mentioned above, the sweeping area of the office premises as on 25.11.2005, is 102.94 Sq.M as certified by none other than the Assistant Engineer of the Public Works Department. So also, it is common ground that even after shifting of the office premises, the sweeping area was much more, as can be seen from Annexure-A4 certificate dated 04.04.2014, wherein the sweeping area is certified to O.P(KAT) No.15 of 2022 8 be 174.14 Sq.M. and subsequently, as per Annexure-A8 certificate dated 13.06.2017, wherein the sweeping area was then found to be 162.47 Sq.M. Suffice to say, there is no dispute that althroughout, even as from the date of issuance of Annexure-A2 G.O dated 25.11.2005 and thereafter, the sweeping area of the office premises in question was more than the minimum threshold limit of 100 Sq.M., as prescribed in Annexure-A2 G.O. 7. For reasons which are not known, the head of the office had never chosen to adhere to the above procedure of sending the proforma for regularization of the applicant and there was delay in that regard. It is the case of the original applicant that he had made repeated pleas before the departmental officials concerned, which were not acted upon. Ultimately, the departmental officials had taken up the plea for regularization of the applicant, which has now been rejected as per the impugned Annexure-A9 order dated 04.05.2018 issued on behalf of the Government in the Public Works Department on the ground that the plea for regularization is belated going by the stipulations in Government Circular No.19/2016 dated 05.03.2016, etc. This impelled the applicant to challenge the same by filing the instant O.A, which has resulted in the abovesaid verdict. 8. After hearing both sides, it is seen that there is no dispute that O.P(KAT) No.15 of 2022 9 the applicant has fulfilled the necessary conditions for getting the benefit of regularization in terms of Annexure-A2 G.O. There is no dispute that the sweeping area of the office premises in question as on 25.11.2005, was more than the minimum threshold limit of 100 Sq _._ M. So also, there is no dispute that the applicant has been in service as casual sweeper w.e.f. 01.01.1998 onwards. Hence, the Tribunal is fully correct in holding that the applicant is entitled to be regularized as Part Time Sweeper w.e.f. 18.06.2001, as ordered in para.8 of Annexure-A2 G.O dated 25.11.2005. Two main contentions are raised by the petitioners in this O.P in their endeavour to challenge the verdict of the Tribunal. The first contention is that the plea for regularization of the original applicant was received by the higher authorities only some time in 2017. Further that, the Government had issued Circular No.23/2010/Fin. dated 02.03.2010 stipulating therein that the plea for regularization should be made within five years therefrom. Further that, it has been ordered in Annexure-A10 Government Circular dated 05.03.2016 that the said time limit cannot be extended any further. That in the instant case, the application for regularization was received by the higher officials of the Government only belatedly and therefore, the plea for regularization cannot be granted and O.P(KAT) No.15 of 2022 10 that the Tribunal has gone wrong in granting the benefit to the applicant. 9. As regards this contention, it has to be borne in mind that Annexure-A2 G.O dated 25.11.2005 has been issued as a comprehensive scheme for implementing and complying with the directions of this Court, as mentioned in the judgments referred to in Annexure-A2 G.O. It has been consistently held by a Division Bench of this Court in various judgments and that too after considering the scope and ambit of the G.O dated 25.11.2005 that once a scheme as the one in that G.O is framed by the Government for complying with the directions of a constitutional court, then subsequent executive orders cannot be issued by the Government to dilute the scheme itself, which is all the more so, since the regularization has been ordered as a one time measure, subject to the condition that the sweepers should have been in service as on 25.11.2005 and the sweeping area should be 100 Sq.M. or above. Further, there is no insistence in the basic G.O at Annexure-A2 that an application should necessarily be made by the Sweeper concerned. Whereas, the specific onus and responsibility in that regard is placed on at the head of the office, as can be seen from a mere reading of para.8 of Annexure-A2 G.O. It shall be the duty and responsibility of the head of the office to ascertain as to O.P(KAT) No.15 of 2022 11 whether the casual sweeper was in service as on 25.11.2005 and as to whether the sweeping area as on that date is 100 Sq.M. or above. The sweeping area has to be measured in terms of the guidelines in Appendix-1 in Annexure-A2 G.O. The measurement has to be done with notice to the sweeper. Once these formalities are duly completed by the head of the office and it is found that the casual sweeper fulfills the necessary criteria, the head of the office shall get the format prepared in that regard and then the sweeper should sign in the said format regarding the details mentioned therein, either agreeing or disagreeing to the measurement noted therein. It is thereafter, that the head of the office will have to forward the said format, for orders for the regularization of the sweeper to the competent authority. So, the basic burden is on the head of the office going by the scheme framed in terms of Annexure-A2 G.O, which has been issued for complying with the directions issued by this Court in the judgments mentioned therein. So, the time deadline mentioned in para.8 of Annexure-A2 is to be met by the administrative authorities concerned. The Government has very consciously and carefully so ordered since the scheme is for regularization of sweepers, who belong to the weaker sections of the society who may not be fully conscious of their rights and privileges. So, in O.P(KAT) No.15 of 2022 12 a case where the head of the office and the administrative officers concerned abdicate from their duties and responsibilities in complying with Annexure-A2 G.O, then the right conferred on the sweeper cannot be thrown to the winds on account of the lethargy and abdication of duties of the officials concerned. Such an approach would be patently against the norms of reasonableness and non-arbitrariness enshrined in Articles 14 & 16 of the Constitution of India. In that regard, it is to be noted that a Division Bench of this Court in the judgment, as in the one rendered on 07.07.2010 in W.A No.2199/2009, has held that the benefit of the abovesaid G.O dated 25.11.2005, which has been framed as a scheme for complying with the directions of this Court in the judgments referred to therein, cannot be taken away by subsequent executive instructions, etc. Pleas of this nature have been repeatedly dismissed by the Division Bench of this Court in many a case relating to claims of regularization of sweepers in terms of Annexure-A2 herein. Hence, we have no hesitation to overrule and reject the abovesaid contention advanced by the State authorities. 10. The second contention advanced by the petitioners is that at the time of the initial employment of the original applicant and even as on O.P(KAT) No.15 of 2022 13 the date of issuance of Annexure-A2 G.O and also thereafter, the office premises was functioning in a rented building and it is only much later that the office premises was shifted to a permanent building. Hence, it is argued by the petitioners that since the casual sweeper was employed not in a permanent office of the department but only in a rented premises, he cannot be given the benefit of regularization. Such a plea regarding the in-applicability of the scheme, where the casual sweeper was employed to do sweeping work in a rented premises of the government department, has been repelled by a Division Bench of this Court in the judgment rendered on 15.01.2020 in O.P(KAT) No.421/2019. In para.5 of the judgment of the Division Bench of this Court in O.P(KAT) No.421/2019, it has been clearly held that the intention of the Government in issuing the abovesaid G.O(P)No.501/2005/Fin., is to regularize the service of casual sweeper working in Government offices, where the sweeping area is 100 Sq.M. or above and therefore, there cannot be any such discretion, as to whether the office premises was then functioning in a rented premises or whether it was in a permanent building of the department, otherwise it will amount to nothing but hostile discrimination and unreasonable classification. The Division Bench noted in the said judgment that for more than one and half O.P(KAT) No.15 of 2022 14 decades, the office premises in that case was functioning in a rented premises, etc. Yet another contention was also raised by the petitioners that the directions issued by the Tribunal for regularization of the casual sweeper, would amount to violation of the dictum laid down by the Apex Court in the case in _**State of Karnataka** v._ _**Umadevi**_ [AIR 2006 SC 1806]. On consideration of this contention, it is brought to our notice that a similar contention raised on behalf of the State has been repelled by the Division Bench of this Court in the judgment dated 15.01.2020 in O.P(KAT) No.421/2019, as can be seen from a reading of para.6 thereof. Hence, we are constrained to reject the abovesaid objection raised by the petitioners in this case. One last objection is also raised that implementation of the verdict of the Tribunal will entail financial consequences. Once the scheme is framed, then the obligation of the officials to comply with the letter and spirit of the scheme, cannot be avoided in the plea of financial consequences and the financial consequences have already been envisaged and permitted by the scheme, subject to fulfillment of the vital parameters. So this objection also would fail. 11. We are fully in concurrence with the abovesaid considered O.P(KAT) No.15 of 2022 15 views rendered by the Division Bench of this Court in the judgment in O.P(KAT) No.421/2019. Hence, for the abovesaid reasons, we have no option but to overrule and reject the abovesaid contention of the petitioners. In the light of these aspects, we do not find any grounds available in public law to disturb the well-considered verdict rendered by the Tribunal in this case. However, we note that the impugned Ext.P-3 verdict of the Tribunal was rendered as early as on 01.07.2019 and the present O.P(KAT) has been filed before this Court on 19.01.2022. In view of the long delay in the matter, it is ordered that the competent authority among the petitioners/respondents in the O.A, shall ensure the full and effective compliance of the directions issued by the Tribunal in Ext.P-3 verdict, without any further delay, at any rate, within an outer time limit of six weeks from the date of receipt of a certified copy of this judgment. 12. Before parting with this case, we note that very many cases of this nature are being instituted by the State, to challenge the verdicts of the Tribunal granting the benefit of regularization to casual sweepers on the benefit of the abovesaid G.O dated 25.11.2005. Except in one or two matters we have found that almost all the other verdicts of the Tribunal, never required any interference at the hands of this Court. The O.P(KAT) No.15 of 2022 16 regularization ordered in Annexure-A2 G.O is only a one time measure for casual sweepers, who are in service as on 25.11.2005 and where the sweeping area is of the threshold limit of 100 Sq.M. or above. It is the bounden duty of the State to ensure the compliance of the directions of the Tribunal, since what is involved is only compliance of the scheme framed by none other than the Government, as per Annexure-A2 G.O. During the course of the hearing, Sri.M.V.Thamban, learned counsel appearing for the respondent herein/original applicant had apprised us that, due to the long delay in the matter of compliance of the directions of the Tribunal, his party was constrained to initiate contempt of court proceedings before the Tribunal and on two occasions, the Tribunal had specifically asked the State authorities, as to the reasons for the inordinate delay and compliance of the verdict and on those two occasions, it was specifically apprised before the Tribunal by the learned Government Pleader concerned that the learned Advocate General had clearly opined that there is no scope for challenging the present verdict of the Tribunal, etc. Moreover, Sri.M.V.Thamban, learned counsel appearing for the respondent had also brought to our notice about a recent decision of the Apex Court, wherein an issue of regularization of the sweeper of a local O.P(KAT) No.15 of 2022 17 authority was involved and that it has been reportedly observed therein that the ' _Mighty State is fighting against a Sweeper_ ' and that the Apex Court had directed that the legal cost should be deposited by the petitioners in the SLP as a condition precedent for entertaining the said SLP and that cost amount of Rs.50,000/- was directed to be deposited, which was ordered to be released to the Sweeper. The learned counsel for the respondent would also urge that in view of the clear fact that there was no scope for taking any challenge of the verdict of the Tribunal in this case, this Court may impose exemplary costs to be paid by the petitioners, etc. 13. Hence, taking note of the above aspects, we had ordered on 24.01.2022 that the Law Secretary to the Government of Kerala will ascertain the details and file a report before this Court, after perusal of the entire case file, as to whether the learned Advocate General had given opinion not to pursue any challenge as against the verdict of the Tribunal in this case and if so, as to the officials concerned who are responsible for the institution of this original petition. Pursuant to the said direction, the Law Secretary has given a report for the perusal of this Court in a sealed cover. In the light of the view that it is proposed to be taken by us, there is no necessity for us to get into the details of the said report given to us by O.P(KAT) No.15 of 2022 18 the Law Secretary, except to note that it is clearly stated therein that the learned Advocate General/learned Additional Advocate General had opined that there is no scope for filing any original petition before this Court to challenge the abovesaid verdict of the Tribunal. However, we note that the Law Secretary has candidly expressed regret in the matter and has submitted that since the original petition was filed, mainly taking into account the financial repercussions, this Court may take a very sympathetic view in the matter. In the light of the abovesaid sincere stand taken by the Law Secretary, we feel in our discretion not to impose any exemplary costs in this case. However, we are of the firm view that the present trend of the Government officials insisting for mounting challenge against judgments of various Fora, even if the matter is fully covered against them, has to be curbed. It is by now well-established that one of main reasons for the huge increase of arrears in various courts, especially in High Courts, etc., is on account of huge litigation initiated at the instance of the State authorities, even where, the matter is fully covered against the State authorities. The present trend of the Government officials in insisting for challenging verdicts of the fora concerned, even if the matter is fully covered against them, as per the judicial decisions O.P(KAT) No.15 of 2022 19 covering the field or as per the statutory provisions, will have to be discouraged. In this case, we see that the original applicant was fully entitled for the benefits of regularization. Still, an unnecessary challenge was mounted at the instance of the State authorities by filing this O.P. There is also no dispute that both the learned Advocate General as well as the learned Additional Advocate General had repeatedly given advice to the State authorities that there is no scope for challenging the impugned verdict of the Tribunal in this case. Still the present original petition has been filed. In matters of this nature involving Government litigation, there is no doubt that the final word should be with the learned Advocate General, who is the constitutional functionary and principal legal adviser to the State, who is appointed in terms of Article 165 of the Constitution of India. Article 165(2) of the Constitution of India _inter-alia_ prescribes that, it shall be the duty of the Advocate General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force, etc. O.P(KAT) No.15 of 2022 20 14. It may be pertinent to refer to the last part of para.14 as well as paras.17 & 18 of the decision of a Division Bench of this Court in the case in _**Chacko** v._ _**State of Kerala**_ [1998 (1) KLT 907 (DB)], which read as follows : _“14. …................... We have already considered the Law Officers' Rules issued by the Government and the Relevant rules, viz. Rules 3, 4, 19(1), 19(5), 19(6), 19(9), 19(10), 19(11), 21, 61, 69, etc. It is clear from the aforesaid provisions that the Advocate General is the Chief Law Officer of the State and he is in overall charge of all criminal and civil proceedings pertaining to Government in the High Court. The Public Prosecutor, merely because he has been redesignated as Director General of Prosecution, cannot claim superiority or equality with the Advocate General in the discharge of his official functions pertaining to the conduct of cases in the High Court. The AG, as already noticed, is a constitutional functionary of the State whereas the Public Prosecutor is only a statutory law Officer. The rules above referred would show that the Public prosecutor is a member of the establishment of the AG and he is bound by the Law Officers' Rules. The provisions in Chapters III and VIII of the Law Officers' Rules are express and explicit.”_ **==> picture [97 x 36] intentionally omitted <==** _17. We saw that the office of the Advocate General is a very important one and he is discharging constitutional functions. Likewise, the post of Public Prosecutor is also a very important one with regard to criminal proceedings. He has so discharge his statutory functions under the provisions of the Code of Criminal Procedure. The said post also carry distinction of a covetable position. It is to be noticed that the post of Public Prosecutor has been redesignated by the Government as Director General of Prosecution, which will have the same status, facilities, emoluments, rate of monetary benefits, etc. as those of the Advocate General. But at the same time, we cannot ignore the fact that the Advocate General is appointed by the Governor of the State under Art.165 of the Constitution of India and he is a constitutional functionary whose words are binding on the Government. The Government is also well aware of the primacy of the Advocate General vis a vis the Public_ O.P(KAT) No.15 of 2022 21 _Prosecutor (DGP) in criminal matters. The only manner in which paragraph 3 of Ext.R1(b) giving the DGP the same status as of AG is to be construed is that it is for the purpose of exercising his supervisory powers over the Public Prosecutors, Assistant Public Prosecutors, etc. in the district level. This cannot, in our opinion, authorise the Director General of Prosecution to assume the status of the Advocate General, who is constitutional functionary and the only Law Officer recognised by the Constitution of India._ _18. The Supreme Court in Joginder Singh Wasu's case (supra) held that the office of the AG is an exalted one and that he is the Supreme Law Officer of the State. The Supreme Court adverted to the fact that the AG is conferred the right to audience before the Legislature of the State both in the Assembly and the Council under Art.177 of the Constitution of India. The Supreme Court held as follows :_ _“Any concession made by the Government Pleader in the trial court cannot bind the Government as it is obviously always unsafe to rely on the wrong or erroneous or wanton concession made by the counsel appearing for the State unless it is in writing on instruction from the responsible officer. Otherwise it would place undue and needless heavy burden on the public exchequer. But the same yardstick cannot be applied when the Advocate General has made a statement across the bar since the Advocate General makes the statement with all the responsibility.””_ 15. It will also be relevant to note the decision of the Apex Court in ## the case in _**Joginder Singh Vasu**_ v. _**State of Punjab**_ [1994 (1) SCC ## 184], paras.12 to 19 thereof, which read as follows : _“_ _**12** . The office of an Advocate-General is an exalted one. He is the supreme law officer of the State._ _**13** . Article 165 of the Constitution of India reads as under:_ _“165(1). The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate-General for the State._ _(2) It shall be the duty of the Advocate-General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the_ O.P(KAT) No.15 of 2022 22 _governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force._ _(3) The Advocate-General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine.”_ _**14** . This article corresponds to Article 76 which relates to the Attorney General for India. In fact, it closely follows Article 76 except for the omission of clause (3) from this article. Under this article, the Advocate-General is appointed by the Governor._ _**15** . The functions of the Advocate-General are mentioned in clause (2). They are as follows:_ - _(i) to give advice to the Government of a State upon such legal matters as may from time to time be referred to him by the Governor;_ - _(ii) to perform such other duties of a legal character as may from time to time be assigned to him by the Governor;_ - _(iii) to discharge the functions conferred on him by or under this Constitution; and_ - _(iv) to discharge the functions conferred on him by or under any other law for the time being in force._ _**16.** It will be seen that the functions of the Advocate-General include the performance of duties of a legal character which may from time to time be referred to or assigned to him by the Governor._ _**17.** Under clause (3) the Advocate-General shall hold office during the pleasure of the Governor and shall receive such remuneration as the Governor may determine. Under Section 55(3) of the Government of India Act, 1935, the forerunner to this article also, it was provided that the Advocate-General was to hold office during the pleasure of the Governor and was to receive such remuneration as the Governor may determine. Section 55 of the Government of India Act, 1935 reads as under:_ _“55. (1) The Governor of each Province shall appoint a person, being a person qualified to be appointed a judge of a High Court, to be Advocate-General for the_ O.P(KAT) No.15 of 2022 23 _Province._ _(2) It shall be the duty of the Advocate-General to give advice to the Provincial Government upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor._ _(3) The Advocate-General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine.”_ _**18.** Under Article 177 he is conferred the right to audience before the Legislature of a State both in the Assembly and the Council. In fact, he is treated on a par with the Minister. The said article reads as under:_ _“177. Every Minister and the Advocate-General for a State shall have the right to speak in, and otherwise to take part in the proceedings of the Legislative Assembly of the State or, in the case of a State having a Legislative Council, both Houses, and to speak in, andotherwise to take part in the proceedings of, any committee of the Legislature of which he may be named a member, but shall not, by virtue of this article, be entitled to vote.”_ _**19.** Having regard to his high position when any statement or a concession is made by him the courts have always accepted his statement and acted on that. In_ Periyar and Pareekanni Rubbers Ltd. v. State of Kerala _this Court observed:_ _“Any concession made by the government pleader in the trial court cannot bind the Government as it is obviously always unsafe to rely on the wrong or erroneous or wanton concession made by the counsel apearing for the State unless it is in writing on instructions from the responsible officer. Otherwise it would place undue and neddnless heavy burden on the public exchequer. But the same yardstick cannot be applied when the AdvocateGeneral has made a statement across the bar since the AdvocateGeneral makes the statement with all responsibility.””_ 16. On the previous occasion, we had requested Sri.Asok M.Cherian, learned Additional Advocate General, to apprise us regarding the procedure in filing appeals, etc. in government litigations. Sri.Asok O.P(KAT) No.15 of 2022 24 M.Cherian, learned Additional Advocate General has invited our attention to Rule 60 of the Kerala Government Law Officers (Appointment & Conditions of Service) and Conduct of Cases Rules, 1978 (KGLO Rules in short), more particularly, sub-rules 6 & 7 thereof. At the outset, it has to be noted that it is recited in the abovesaid KGLO Rules, 1978 and the same has been framed in terms of Sec.2(1) of the Kerala Public Services Act. It is true that it is recited in the preamble of the abovesaid KGLO Rules, 1978 that the same is framed under the provisions contained in Sec.2(1) of the Kerala Public Services Act, 1968. However, this Court has held in the case in _**Aboobaker** v._ _**M.Ratna Singh**_ [1992 (1) KLT 41] that the Public Prosecutors and Government Pleaders cannot be said to be holders of posts under the service of the Government and that they are only holders of office, etc. Hence, the source of power for framing the KGLO Rules, 1978, cannot be traced to the Kerala Public Services Act, which is meant only for regulating the conditional service of Government servants. So, it is an elementary position of law that the abovesaid KGLO Rules are not statutory rules, but only non-statutory rules having the nature of executive instructions issued by the State Government. Sub-rule 6 & sub-rule 7 of Rule 60 of the KGLO Rules deals with some of the procedural aspects O.P(KAT) No.15 of 2022 25 ## regarding filing of appeal, etc. Sub-rule 6 & sub-rule 7 of Rule 60 provide ## as follows : _“Rule 60 Procedure in regard to Original Petitions and other Civil Proceedings in the High Court -_ **==> picture [168 x 36] intentionally omitted <==** _(6) Copies of judgements, decrees and orders passed in every proceeding of a civil nature in which the Government are a party shall promptly be forwarded to the Administrative Department along with all relevant records by the Advocate General. He shall also simultaneously forward his opinion as to the desirability or otherwise of the decision being challenged in appropriate proceedings before a higher forum. The Administrative Department shall thereupon consult the Suit Section to the Law Department regarding the further action to be taken_ _(7) The Suit Section of the Law Department shall then examine the matter and decide whether it is necessary to have the decision challenged and intimate the decision to the Administrative Department.”_ 17. Sub-rule 6 of Rule 60 stipulates that, after getting the copies of the judgments, decrees, etc., the same shall be forwarded to the Administrative Department, along with all the relevant records by the Advocate General and he shall also simultaneously forward his opinion as to the desirability or otherwise of the decision being challenged in appropriate proceedings before a higher Forum, etc. Thereupon, the Suit Section in the Law Department shall examine regarding the further action O.P(KAT) No.15 of 2022 26 to be taken. Sub-rule 7 of Rule 60 further stipulate that the Suit Section of the Law Department shall then examine the matter and decide whether it is necessary to have the decision challenged and intimate the decision to the Administrative Department. No further provisions are seen covered in the KGLO Rules. Though the abovesaid non-statutory rule may give an impression as if, even the opinion of the learned Advocate General, who is a constitutional functionary, can be overruled by the Law Secretary, who is only an officer of the rank of District Judge appointed on deputation basis, this cannot reflect the correct legal position. The learned Advocate General is a constitutional functionary and the principal legal adviser of the State, who is appointed in terms of Article 165 of the Constitution of India. The advice and opinion of the learned Advocate General, are to be accepted with deference and respect by the administration. Of course, if the Administrative Department pursues the matter and the suit section of the Law Department gives an opinion to file an appeal, etc., then the same can be pursued further, but only after getting concurrence of the learned Advocate General. If the learned Advocate General or any other senior law officer, like the Additional Advocate General authorized by the former, takes the specific stand that appeal need not be pursued, etc., then the said opinion O.P(KAT) No.15 of 2022 27 and advice given by the learned Advocate General/Additional Advocate General, as the case may be, shall ordinarily be binding on the administration. This is all the more so in cases where the matter in issue is covered against the State on the basis of judicial decisions as well as the statutory provisions concerned. If the abovesaid advice of the learned Advocate General is not fully acceptable to the administration, then certainly after getting second opinion from the Law Secretary, they may make a request to the learned Advocate General for re-consideration of the matter and the decision so taken by the learned Advocate General/Additional Advocate General, as the case may be, should be taken as final and binding. Even that need not necessarily be the end of the road. In rare and exceptional cases, even if the matter in issue may be stricty covered by certain judicial decisions, but due to any bonafide reasons, if the State feels that the matter may have to be agitated, then in such an eventuality, it could be resolved, not on the basis of any unilateral decision of the administration. In such rare and exceptional cases, the administrative officials concerned, on the basis of such subsequent advice of the Law Secretary, may get specific approval from the Minister concerned and may make a special request to the learned Advocate O.P(KAT) No.15 of 2022 28 General, for re-considering the matter, after giving cogent and convincing reasons and it is for the learned Advocate General then to look into the matter and give necessary advise to the administration. So in a case of that eventuality where the learned Advocate General has already given opinion twice not to pursue the matter, then the officials concerned cannot directly dictate the further course of action and they will have to get specific sanction and approval from the Minister and a request will have to be made, showing cogent and convincing reasons, to the learned Advocate General through the Principal Secretary to Government of the Administrative Department concerned, for taking recourse to further action, as mentioned hereinabove. It has to be borne in mind that one of the main reasons for the huge pendency of arrears in various courts on account of Government litigations and unnecessary Government litigations has to be avoided to the extent possible, otherwise it would be highly detrimental to public interest as well as to the course of justice. The above observations made by us are only in the context of litigation matters in the High Court. 18. Accordingly, it is ordered that the State of Kerala and its officials, more particularly, the Chief Secretary to Government as well as O.P(KAT) No.15 of 2022 29 the various Principal Secretaries to the various departments concerned as well as heads of the departments and the Law Department, shall meticulously follow the abovesaid procedure. If the abovesaid procedure is violated and if ultimately, the appeal or the legal challenge is rejected by the appellate Forum and costs are ordered, then the State should ensure that such costs are recouped from the Government officials concerned who are personally responsible for the filing of such unnecessary appeals. The learned Advocate General is requested to ensure that the matter is discussed at the highest level of the State Government to ensure that the abovesaid procedure is fully adhered to and complied with by the administrative officials concerned. 19. The upshot of the above discussion may be summed up as follows : (1) The learned Advocate General or the learned Additional Advocate General, if authorized by the former, may forward the necessary case papers and the opinion regarding scope of appeal and such other relied aspects, as envisaged in Rule 60(6) supra, to the Administrative Department concerned. O.P(KAT) No.15 of 2022 30 The Administrative Department may consult with the Law Department and in that regard, it has to be borne in mind that the opinion/advice given by the learned Advocate General/Additional Advocate General, as the case may be, shall ordinarily be binding on the administration. This is all the more so in cases where the matter in issue is covered against the State on the basis of judicial decisions as well as the statutory provisions concerned. (2) If the abovesaid advice of the learned Advocate General is not fully acceptable to the administration, then the Law Secretary may give his opinion in the matter, showing good and valid reasons to depart from the said advice of the learned Advocate General. Thereupon, the Administrative Department concerned may make a request to the learned Advocate General, for re-consideration of the matter and the decision so taken by the learned Advocate General, should be taken as final and binding. - (3) Even the above need not necessarily be the end of the road and in rare and exceptional cases, even if due to bonafide O.P(KAT) No.15 of 2022 31 and valid reasons if the State feels that the matter may have to be agitated in further challenge in litigative proceedings, then in such eventuality, the same is to be resolved not on the basis of any unilateral decision of the Administration. In such rare and exceptional cases, the Administrative officials concerned, on the basis of such subsequent advice that may be given by the Law Secretary with good and valid reasons and after getting the specific approval from the Minister concerned, may make a special request to the learned Advocate General for re-considering the matter. In this regard, the Administrative Department, based on subsequent opinion of the Law Secretary, will have to give good and sufficient reasons for securing the approval of the Minister and only thereafter, with the approval of the Minister concerned, should the matter be taken up before the learned Advocate General. If based on such cogent and convincing aspects, the Administrative Department, after getting prior approval of the Minister concerned, may make a special request to approach the O.P(KAT) No.15 of 2022 32 learned Advocate General, who may then look into the matter and give necessary advice to the Administration. In other words, in a case where the learned Advocate General has already given opinion/advice twice as above, not to pursue the matter in litigative challenge, then the officials concerned cannot directly dictate the further course of action and they will have to get specific sanction and approval of the Minister, along with the subsequent advice of the Law Secretary. As mentioned hereinabove, such a special request, after adhering to the above aspects will have to be addressed by the Principal Secretary to Government in the Administrative Department concerned to the learned Advocate General, for taking recourse to further action, as above. Any such opinion after this prolonged process of consultation as given by the learned Advocate General, should be taken as the last word by the Administration. - (4) It has to be borne in mind that the learned Advocate General is a constitutional functionary and the Principal Law O.P(KAT) No.15 of 2022 33 Officer of the State, in terms of Article 165 of the Constitution of India. The necessity to avoid huge arrears on account of unnecessary Government litigation, has to be borne in mind by all concerned. 20. For ensuring clarity in the matter, the Chief Secretary to Government, after consultation with the learned Advocate General and the higher functionaries concerned, may ensure that the above aspects may be delineated in the form of a circular for the clear and better understanding of all the officials concerned. As already mentioned hereinabove, the directions of the Tribunal, as per Ext.P-3, shall be complied with by the competent authority of the petitioners by granting the benefit of regularization and all consequential benefits therefrom, as ordered hereinabove, without any further delay, at any rate, within a period of six weeks from the date of receipt of a certified copy of this judgment. We find no grounds in public law to interfere with the well-considered verdict of the Tribunal in this case. It is also ordered that the Chief Secretary to Government shall circulate the gist of the directions of this judgment on the abovesaid procedural aspects regarding the filing of appeals, etc. to all the Principal Secretaries to the various Administrative Departments O.P(KAT) No.15 of 2022 34 concerned and various other Heads of the Departments concerned, for necessary information and effective compliance. 21. The Secretary to the learned Advocate General will forward copies of this judgment to all the petitioners in the O.P as well as to the Chief Secretary to the Government and the Law Secretary. With these observations and directions, the above Original Petition will stand dismissed. However, we desist to order exemplary costs in this case, only taking note of the fair and sincere stand taken by Sri.Asok M.Cherian, learned Additional Advocate General and the Law Secretary. **Sd/-** ## **ALEXANDER THOMAS, JUDGE** **Sd/VIJU ABRAHAM, JUDGE** vgd O.P(KAT) No.15 of 2022 35 ## **APPENDIX OF OP(KAT) 15/2022** ## **PETITIONERS' ANNEXURES/EXHIBITS** **ANNEXURE (A1) TRUE COPY OF SWEEPING AREA CERTIFICATE OF THE OFFICE OF ASSISTANT ENGINEER PWD ROAD SECTION, ANCHAL** **ANNEXURE(A2) TRUE COPY OF GO (P) NO 501/2005/FIN DATED 25/11/2005** **ANNEXURE (A3) TRUE COPY OF THE LETTER NO. A10.3269/05 DATED, 1.7.2010 OF THE FOURTH RESPONDENT** - **ANNEXURE (A4) TRUE COPY OF THE LETTER DATED, 4.4.2014 OF THE SIXTH RESPONDENT** - **ANNEXURE (A5) TRUE COPY OF THE LETTER NO. A3.334/2010 DATED, 16.02.2015 OF THE FIFTH RESPONDENT** - **ANNEXURE (A6) TRUE COPY OF THE REPRESENTATION DATED, 26.09.2015 OF THE APPLICANT** - **ANNEXURE (A7) TRUE COPY OF THE LETTER NO. A.S/P.T/2005 DATED, 22.06.2017 OF THE SIXTH RESPONDENT** - **ANNEXURE (A8) TRUE COPY OF THE SWEEPING AREA CERTIFICATE DATED, 13.06.2017 OF THE OFFICE OF THE SIXTH RESPONDENT** - **ANNEXURE (A9) TRUE COPY OF THE LETTER NO. PWD-B1/77/2018PWD DATED, 4.5.2018 OF THE FIRST RESPONDENT** **ANNEXURE (A10) TRUE COPY OF THE GOVERNMENT CIRCULAR NO.19/2016/FINANCE DATED, 5.3.2016** - **EXHIBIT P1 EXIHIBIT P1 COPY OF OA 2014/2018** - **EXHIBIT P2 EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT** 36 ## O.P(KAT) No.15 of 2022 **DATED, 7.3.2019** **EXHIBIT P3** **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 1.7.2019 IN OA NO. 2014/2018 OF THE KERALA ADMINISTRATIVE TRIBUNAL**