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K. Bheema Raju and anr. Vs. Government of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 5587 of 1979
Judge
Reported inAIR1981AP24
ActsConstitution of India - Articles 14, 16, 226 and 309; Andhra Pradesh Law Officers (Recruitment, Conditions of Service and Remuneration) Rules, 1967 - Rules 2, 5, 6 and 7
AppellantK. Bheema Raju and anr.
RespondentGovernment of Andhra Pradesh and ors.
Appellant AdvocateT. Ramakrishna Rao, Adv.
Respondent AdvocateGovt. Pleader and ;K. Ramaswamy, Adv.
DispositionPetition allowed
Excerpt:
.....of service and remuneration) rules,1967 and articles 226 and 309 of constitution of india - assistant government pleaders appointed without consulting district judge - rule requires recommendation of district judge - appointment not valid as district judge not consulted. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds..........procedure laid down for eligibility and selection in respect of recruitment of law officers in the district courts and city courts and in practice and by convention the district collector in all other districts of andhra pradesh before making appointment of assistant government pleaders in the courts outside the district headquarters calls for a panel of advocates suitable for the said appointment from the judicial officers of those courts situated outside the district headquarters and the said procedure was in tune with rules 5 and 6 as the judicial officers of those courts know the merit and ability of the advocates practising in their courts. according to him, it was only in west godavari district that there was a significant departure from the said healthy convention and the.....
Judgment:

Reddy, J.

1. The petitioners are advocates practising in the Civil and Criminal Courts at Tanuku. A Court of Subordinate Judge-cum-Assistant Sessions Judge and a Court of District Munsiff are located in Tanuku. The Bar at Tanuku has a strength of about 45 members.

2. Consequent on the expiry of the term of office of the Assistant Government Pleader for the Courts of the Subordinate Judge and District Munsif at Tanuku held by one Y. Rajagopal Rao, the said post of Assistant Government Pleader fell vacant on 12-8-1978. This post has to be filled up by direct recruitment from the Bar i.e., the Legal practitioners of the District under Rule 7 (a) of the Andhra Pradesh Law Officers (Recruitment. Conditions of Service and Remuneration) Rules. 1967, hereinafter referred to as 'the Law Officers Recruitment Rules'. The District Collector West Godavari, by his letter dated 29-6-1978 requested the Tahsildar to send up proposals through the Revenue Divisional Officer, Kovvur to fill up the post of Assistant Government Pleader. The Tahsildar, Tanuku, invited applications from the members of the Bar at Tanuku in the prescribed pro forma. About 18 advocates practising at Tanuku including the second petitioner submitted the bio data in the prescribed form to the Tahsildar, Tanuku. Some members of the Bar protested against this procedure of calling for applications by the Tahsildar instead of calling for a panel of names from the Judicial Officers of the Civil Courts at Tanuku. Some members of the Bar like the first petitioner did not apply. The Tahsildar. on receipt of the applications, it appears, recommended a panel of 4 names to the Revenue Divisional Officer. Kovvur, keeping the previous incumbant's name i.e., Y. Rajagopal Rao as the first name in the panel and the name of the third respondent viz., I. Rama Krishna Rao as the second. The District Collector, on a consideration of the proposals submitted by the Tahsildar appointed the 3rd respondent as the Assistant Government Pleader, in his proceedings Roc. No. 3.7349/78 dated 6-8-1978 for a period of three years from the date of appointment. By the said order, Ramakrishna Rao was also requested to execute an agreement on Rs. 5 non-judicial stamp in the form prescribed under the Law Officers Recruitment Rules. In this writ petition the legality of the said appointment of Assistant Government Pleader is assailed.

3. The learned counsel for the petitioners firstly submits that Rule 7 of the Law Officers Recruitment Rules confers a blanket power on the District Collector without laying down any guidelines or criteria for eligibility or the criteria for selection to the post of Assistant Government Pleader to be followed by the appointing authority in making the appointment of Assistant Government Pleader. According to him, Rule 6 prescribed the procedure laid down for eligibility and selection in respect of recruitment of Law officers in the District Courts and City Courts and in practice and by convention the District Collector in all other Districts of Andhra Pradesh before making appointment of Assistant Government Pleaders in the Courts outside the District headquarters calls for a panel of Advocates suitable for the said appointment from the Judicial Officers of those Courts situated outside the District Headquarters and the said procedure was in tune with Rules 5 and 6 as the Judicial Officers of those Courts know the merit and ability of the Advocates practising in their courts. According to him, it was only in West Godavari District that there was a significant departure from the said healthy convention and the Collector in West Godavari District calls for a panel of Advocates from the Tahsildar of the Taluq headquarters through the Revenue Divisional Officer. According to him, it was an arbitrary exercise of power giving rise to unpredictability and uncertainty bordering on the whims and fancies of the District Collector to make appointments of Law Officers of his choice without any legal basis or principles. Thus it is contended that Rule 7 confers an unbridled and unfettered and absolute power on the District Collector in respect of the appointment of Law Officers, inasmuch as it does not either lay down any guidelines for selection of the advocates from the Bar or provides any machinery or procedure for selection on any known principles of law. Therefore, such conferment of blanket power of appointment on the District Collector under Rule 7, it is argued, was violative of the fundamental rights of the petitioners under Articles 14 and 16 of the Constitution.

4. Secondly, the learned counsel for the petitioners pleads that Rule 7 (c) of the Law Officers Recruitment Rules was amended by G. O. Ms. No. 1314 dated 25-8-1977 and that under the amended form of agreement which has to be executed by the person appointed as Assistant Government Pleader under Rule 7 (c) the recommendation of a candidate by the District Judge is a condition precedent for the appointment of Assistant Government Pleader. Therefore it is submitted, any appointment of Assistant Government Pleader made without such recommendation is illegal.

5. On the other hand, the learned Government Pleader submits that a Division Bench of this Court in W. P. No. 6089 of 1978 on 4-7-1979 upheld the constitutional validity of Rule 5 in respect of the appointment of Law Officers in the High Court by the Government from the Bar, that Rule 5 is in the same terms as Rule 7, and, therefore, the contention that Rule 7 is violative of Articles 14 and 16 is no longer res integra, As regards the second contention that the recommendation of a candidate by the District Judge concerned is a condition precedent for the appointment of Assistant Government Pleader under Rule 7 after the amendment by G. O. Ms. No. 1314 dated 25-8-1977, the learned Government Pleader submits that under Chapter XVII of the Revenue Manual of West Godavari District, norms have been prescribed for the appointment of Assistant Government Pleaders in Annexure V of the said Manual, that the appointment of Assistant Government Pleaders is on the recommendations of the Tahsildar and the Revenue Divisional Officer in accordance with the instructions contained in the Revenue Manual, and that the appointment made without the re-commedation of the District Judge is not ultra vires of Rule 7.

6. Therefore, the two questions that arise are: (1) whether Rule 7 of the Law Officers Recruitment Rules is violative of Articles 14 and 16 of the Constitution; and (2) whether the procedure adopted by the District Collector, West Godavari, in the appointment of Assistant Government Pleader is violative of Rule 7.

7. It would be more convenient to take up the second question first and examine its depth and soundness. It is, therefore, necessary to look at the relevant rules in the Law Officers Recruitment rules:

8. By G. O. Ms. No. 1487 dated 31st August, 1967 the Law Officers (Recruitment, Conditions of Service and Remuneration) Rules, 1967, were issued by the Governor of Andhra Pradesh in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and in supersession of all previous orders on the subject. Rule 2 (i) defines 'Assistant Government Pleader' to mean, a person appointed by the District Collector to conduct cases in the Courts of Subordinate Judges and in the Courts of District Munsiffs. Rule 2 (iv) defines 'Government Pleader' to mean, a person appointed for work on the civil side in the High Court of Andhra Pradesh or District Court in any administrative Court and includes an Additional Government Pleader and an Assistant Government Pleader. Under Rule 2 (vii) 'Law Officer' is defined to mean, a law officer appointed to conduct cases on behalf of the Government and includes a Government Pleader, and a Public Prosecutor. Rule 5 prescribes the procedure for the appointment of Law Officers in the High Court, while Rule 6 prescribes the procedure for the appointment of Law Officers in the District Courts and City Courts subordinate to the High Court. Rule 7 which is more relevant for our purpose deals with the appointment of Assistant Government Pleaders in the Courts of Subordinate Judges situated outside the district headquarters and in the Courts of District Munsiffs. Rule 7 reads as follows:

7. Appointment of Assistant Government Pleaders in the Courts of Sub-Judges situated outside the district headquarters and in the courts of District Munsiffs:-- (1) In the case of appointments of Assistant Government Pleaders in the Courts of Subordinate Judges, situated outside the district headquarters and in the courts of District Munsiff -

(a) Appointment shall be made by the District Collector concerned from among the legal practitioners of the district for an initial term of three years which may be followed by reappointment for a second term of three years if the work of the law officer concerned is satisfactory, there being no further reappointment, though, in exceptional cases, the appointment for a third term may also be made;

Note: A person who is holding an office of a member in a Municipal Corporation, Municipal Council, or Committee, Zilla Parishad. Panchayat Samithi or any other local authority shall not be eligible for appointment so long as he holds that post.

(b) nersons over sixty years of age shall not be ordinarily reappointed:

(c) the person appointed shall be required to execute an agreement in writ-tag in the form given in Appendix-I.

(2) The service of the Assistant Government Pleaders appointed under sub-rule (1) shall be terminable on two months' notice, in writing on either side,

9. By G. O., Ms. No. 1314, dated 25-8-1977 the Law Officers Recruitment Rules, 1967 were amended and by the said amendment, the form of agreement given in the Appendix under Rule 7 (c) of the Rules was substituted. The form of Agreement now reads:

'The agreement for rendering service to the State in all suits or petitions entrusted to Sri..... for and on behalf of the State of Andhra Pradesh.

This agreement executed by Sri..... son of ..... Advocate practicing at ...... in favour of the Governor of Andhra Pradesh represented by the District Collector ....... ...... being the Chief Executive Authority of the District empowered to enter into and sign the agreement on behalf of the Governor of Andhra Pradesh representing the State of Andhra Pradesh.

Whereas Sri ..... And whereas the candidature of Sri ..... on recommendation having been made by the District Judge ..... the District Collector ........ had agreed that his services may be retained by the Government to appear, conduct and defend or prosecute for and on behalf of the State of Andhra Pradesh in all the suits, applications or all other proceedings connected with or incidental thereto in the court of ..... and that he agreed to abide by the terms and conditions prescribed hereunder.

(i) to (ix) .....'

10. It is the contention of the learned counsel for the petitioners that the agreement which forms part and parcel of Rule 7 (c) specifically envisages the appointment of an Assistant Government Pleader on the recommendation of the District Judge concerned in all the Districts in the State of Andhra Pradesh, and the practice followed by the District Collectors, while making the appointments of Assistant Government Pleaders in the Courts outside the District Headquarters is by calling for a panel of advocates suitable for the said appointments from the presiding officers of those Courts situated outside the District Headquarters, and that the said well established practice and procedure incorporated in Rule 7 (c) has been violated only in West Godavari Disk The agreement prescribed under Rule 7 (c) by the amendment to the Law Officers Recruitment Rules made under G. O. Ms. No. 1314 dated 25-8-1977 clearly envisages recommendation of a candidate by the District Judge for appointment as an Assistant Government Pleader. Indeed it recites that 'the District Collector had agreed for the appointment only on recommendation having been made by the District Judge.' In other words, in the absence of a recommendation of a candidate by the District Judge the Collector would not have agreed for the retention of his services by the Government to appear, contend, defend and prosecute on behalf of the State. It appears to us that Rule 7 (c) and the form prescribed therein is based on the salutary principle that the presiding officers of the Court have the occasion to assess the preformance of the practising advocates, better than the executive officials who have no occasion to watch their work. The Supreme Court in Mundrika Prasad v. State of Bihar, : [1980]1SCR759 dealing with the Bihar Government's Law Officers Rules, which provide for consultation of the District Judge, observed:

'It is heartening to notice that the Bihar Government appoints these lawyers after consultation with the District Judge. It is in the best interest of the State that, it should engage competent lawyers without hunting for political partisans regardless of capability. Public offices -- and Government Pleadership is one -- shall not succumb to Tammany Hall or subtler spoils system, if purity in public office is a desideratum. After all, the State is expected to fight and win its cases and sheer patronage is misuse of power. One effective method of achieving this object is to act on the advise of the District Judge regarding the choice of Government Pleaders.'

11. We have no doubt in our minds that although the rule does not ' specifically provide for consultation or recommendation of the District Judge in the matter of appointment of Assistant Government Pleaders, the clause regarding the recommendation of the District Judge was incorporated in the form of agreement prescribed under the Rule to achieve the object of obtaining the services of competent lawyers without hunting for political partisans regardless of capability which alone would be the result in case the appointment is made purely on the recommendation of the local Revenue Officials. However, the learned Government Pleader attempts to uphold the appointment of the third respondent on the ground that the Collector who is the competent authority to appoint under Rule 7 has made the appointment, and that Rule 7 does not contemplate consultation with any judicial officer. According to him, as per Part II Chapter 17 of the District Revenue Manual, the Collector has to follow the administrative guidelines provided therein, and therefore, the appointment of the third respondent made after following the administrative guidelines provided by the West Godavai District Revenue Manual Part II is unquestionable. We do not think that the contention of the learned Government Pleader is well merited.

12. The preamble of the Law Officers Recruitment Rules clearly says that the rules made by the Governor of Andhra Pradesh in exercise of powers conferred by the proviso to Article 309 of the Constitution of India are in supersession of all previous orders on the subject. Annexure V of the Revenue Manual was issued on 8-9-1966 long prior to the issue of the G. O. Ms. No. 1487 dated 31st August, 1967, under which the aforesaid rules under Article 309 were framed. Therefore, the norms prescribed by the Annexure V of Revenue Manual were no longer in force.

13. The learned Government Pleader, however, submits that the petitioners are not entitled to the relief under Article 226 of the Constitution as they are guilty of laches and lack of bona fides. He submits that the third respondent was appointed as Assistant Government Pleader on 6-8-1978 and the writ petition filed by the petitioners was on 6-8-1979 without any explanation and so for the unexplained delay in approaching this Court, the writ petition ought to have been dismissed in limine. The learned counsel further pleads that the petitioners are advocates and they were all acquainted with the procedure in making the appointments and so they ought to have been more vigilant in approaching this Court at the earliest point of time, Placing reliance on the decision of the Supreme Court reported in Tilokchand Motichand v. H. B. Munshi : [1969]2SCR824 he submits that the avoidable delay of the petitioners disentitles them to invoke the discretionary remedy under Article 226 of the Constitution. In any event, he submits that one Suryanarayana Murthy, Advocate, earlier filed W. P. No. 4612 of 1978 and then he withdrew that writ petition on 27-3-1979 and filed another W. P. No. 2904 of 1979 which was dismissed in limine on 6-4-1979 and that the present writ petition was filed on 6-8-1979 only under the instigation of the said Suryanarayana Murthy and therefore it was not a bona fide one. It is true that one Suryanarayana Murthy earlier filed the aforesaid two writ petitions, the first of which i.e., W. p. No. 4612 of 1978 was dismissed as withdrawn and the second was dismissed with the observation that the petitioner viz., Suryanarayana Murthy was himself an applicant for the post and furnished bio data in the precribed form and came forward with the writ petition, because he did not succeed in his attempt to get the post of Assistant Government Pleader. The Bench observed:

'Having failed in his attempt to get the appointment of the Assistant Government Pleader although he also submitted his application to the Tahsildar, Tanuku, with his bio data, he has rushed to this Court to file this writ petition with a view to see that the 5th respondent, the successful candidate, should not function as the Assistant Government Pleader, Tanuku. His aim and object seems to be that though he has not got the appointment of the Assistant Government Pleader, Tanuku he should see that the 5th respondent should not get that job for which he tried and failed. From the very admitted facts, we are of the view that his application is also not bona fide.'

14. Therefore, under these circumstances this Court held that the application filed by the said Suryanarayana Murthy was not a bona fide one. But in this case, the first peittioner was not an applicant for the post and in fact he had protested against the procedure adopted by the District Collector in the matter of appointment of the post of Assistant Government Pleader by calling for applications by the Tahsildar. Therefore, in such circumstances, it in not possible to hold that this writ petition filed by the 1st petitioner is not a bona fide one nor are we prepared to hold that the writ petition is vitiated by avoidable delay and is liable to be rejected. It is true that being Advocates the petitioners ought to have approached this Court much earlier, but in a matter which involves the fundamental right to public office and violation of legal procedure to be adopted in the matter of appointment to public office -- and it is now well settled that the post of Law Officer is a public office under the State within the meaning of Article 16 of the Constitution -- we do not think that the delay should deter us in granting the discretionary relief and rendering justice. (Vide Trilokchand v. Munshi, : [1969]2SCR824 ). We have, therefore, no hesitation in rejecting the contention of the learned Government Pleader and in declaring that the procedure followed in the appointment of the third respondent as Assistant Government Pleader is in violation of Rule 7 (c) of the Law Officers Recruitment Rules. The said appointment is, therefore, quashed and the District Collector, West Godavari, is directed to make a fresh appointment after consultation with the District Judge in conformity with the Rules. The 3rd respondent shall, however, be continued in office until such fresh appointment is made.

15. In view of the conclusion we have reached on the second question, we refrain to express our opinion on the first question, whether Rule 1 is violative of Articles 14 and 16 of the Constitution.

16. The Writ Petition is therefore, allowed with costs. Advocate's fee Rs. 250. Rule1 shall pay the costs.

17. The learned Government Pleader makes an oral application for leave to appeal to the Supreme Court of India. In our opinion no substantial question of law of general importance which requires to be decided by the Supreme Court of India is involved in this case. The Application is therefore, rejected.


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