Supreme Court of India
JOGINDER SINGH WASUversusTHE STATE OF PUNJAB
- Citation
- 1993 INSC 352
- Decided
- 29 October 1993
Holding
The fee schedule for the Advocate General is amendable, and the State may lawfully apply the 1975 amendment, so the Advocate General cannot claim entitlement to the original fee rates for the entire term.
Summary
Joginder Singh Wasu, the Advocate General of Punjab, was appointed under a 1953 notification fixing his fee at Rs 100 per civil writ or letters‑patent appeal. In 1975 the State issued an amendment reducing fees for batch cases and capping total fees at Rs 1,000. Wasu protested, submitted bills based on the original rates, and was asked to revise them per the new rules; his subsequent writ petition was dismissed, leading to this appeal. The Supreme Court held that the fee schedule in the 1953 notification is amendable, as it expressly provides for alteration "from time to time," and the State may lawfully change the fees during the Advocate General’s term. The relationship between the Advocate General and the State is likened to that of a client and advocate, allowing the client to stipulate fees, which the Advocate General may accept or reject. Consequently, the Court ordered the amount due to be calculated under the 1975 amendment with interest, and dismissed the appeal.
Issues considered
- The fee provisions fixed under the 1953 notification can be altered during the Advocate General's term.
- The validity and retrospective effect of the 1975 amendment notification on Advocate General's remuneration.
- The nature of the relationship between the Advocate General and the State and its impact on fee determination.
- Whether the State can unilaterally modify the Advocate General's fee structure without cabinet approval.
Legislation cited
- Constitution of Indias. Article 165, s. Article 177
- Government of India Act, 1935s. Section 55
Subjects
Advocate Generalremunerationfee amendmentArticle 165client‑advocate relationshipstate governmentcontractual termsjudicial officer remuneration
Judgment
A JOGINDER SINGH WASU
v.
THE STATE OF PUNJAB
OCTOBER 29, 1993
B [M.~. VENKATACfiAUAH, CJ AND$; MOl:IAN; J.)
.
Constitution of lhdla, ·195f} : Articles 165, 177-Advocate General---
terms of fees for cases conducted by him-field, tan be altered even during
his term-:R.elationship between Advocate General and State Govern-
C ment-Explained. ·
The Advocate General Punjab (Remuneration & Duties) Rules, 195J:
Rule 6(f) .'Notification No. 8746-ll-53/38717 dated 6.7.1953 and amended
by Notification No. 12679-211-75125572 dated 7.8.1975-Tenns of fees in
relation to cases to be conducted by Advocate Genera~Subsequent change
D in-Held, Advocate General cannot say that he shall be continued on the
same terms of appointment.
The appellant was appointed as Advocate General of the respondent-
State. In terms of para 6(f) orthe Notification No. 8746-JJ-53/38717 dated
E 6.7.1953, containing the rules framed under Article 165 of the Constitution,
his fees was fixed at Rs. 100 for each clVil writ case or letters patent appeal
arising therefrom even when a number of writ cases were disposed of on
the same point of law or facts or the matter was covered by an eariler
judgment.
p Subsequently, the appellant received Notification No. 12679-2JJ·
75/25572 dated 7.8.1975, which substituted Rule 6(f) of the Advocate
General Punjab (Remuneration of Duties) Rules, 1953, to the effect that
for each civil writ case, letters patent appeal, and application for certificate
of fitness for appeal to the Supreme Court arising from such civil writ case
or appeal, the fee would be Rs.100 provided that when a number of such
G cases were decided by one judgment either because of common questio'1 of
law or fact being involved therein or on account of the case being covered
by an earlier judgment, full fee would be payable only in one case in which
the main judgment was delivered and one half of the fee would be payable
in each connected case subject to the condition that the fee payable in main
H case as well as hi the connected cases would not exceed Rs. 1000. 'lbe
486
J.S. WASU v. STATE 487
appellant protested and requested the State Government to keep in A
abeyance the enforcement of the notification. He submitted the fee-bills for
the cases conducted by him from August 1975 to May 1977 according to
the original scale of fee. These bills were returned to him with a request
to send revised fee-bills in accordance with the notification dated 7.8.1975.
Thereupon, he flied a writ petition before the High Court which dismissed B
the same in limine. Hence, the appeal by special leave.
lt was contended on behalf or the respondent-State that under
Article 165 or the Constitution once a power was given to fix the fees, the
corresponding power to alter the fees from time to time was equally
available and; as the position of the parties was that of an Advocate and C
a client, it was open to the client to stipulate a particular fee.
Dismissing the appeal, this Court
HELD : 1.1. The fee in respect of the cases to be conducted by the
Advocate General, fixed in para 6(t) under Notification dated 6.7.1953 D
cannot remain unaltered. Nor can it be said that during his term it cannot
be changed at all. Though the appellant came to be appointed on certain
terms envisaged under Notification dated 6.7.1953, it cannot be said that
the notification can never be amended. The Notification clearly stipulates
'as amended from time to time'. (495-A·B·C] E
1.2. The relationship between the Advocate General and the State
Government is essentially that or an advocate and a client in relation to
his appearance in court and arguing the case before the court on behalf
or the State. A client may propose the fees. It is open to the advocate to
stipulate a higher fee. If that is not agreed to, he cannot compel the client F
that he must be entrusted with the brief, for him to conduct on the
stipulated fee by him. When the State Government is not agreeable to the
old fee structure, the Advocate General cannot say that he shall be con·
tinned on the same terms of appointment. (494-H, 495-E, GJ
This Court directed that the amount due to the appellant shall be
G
calculated in accordance with the amended Notification dated 7.8.1975,
and shall be paid to him together with interest @ 12% per annum. (496-C]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3202 of
~. H
488 SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.
A From the Judgment ~nd Order dated 24.5.78 of the Punjab and
Haryana High Court in C.W.P.No. 2252 of 1978.
M.S. Gujra anq T.S. Arora for the Appellant.
MOHAN, J. The appellan~ was appointed Advocate General of the
State of Punjab by the President of India by Notification No. 1178-21J-72
dated 24th January, 1972. The terms of appointment are that he would be
C paid salary of Rs. 1,500 per month and that in the matter of his duties and
other terms he will be governed by the rules framed under Article 165 of
the Constitution of India vide Notification No. 8746-JJ-53/38717 dated 6th
July, 1953 amended from time to time. Clause (t) of para 6 of the 1953
Notification reads thus :
D
"(t) In Civil Writ cases and in letters patent Appeals arlsing
therefrom which shall not be considered as civil miscellaneous
cases, the fee shall be one hundred rupees .for civil writ or letters
patent appeal."
E Thus, the fee of the Advocate General was fixed at Rs. 100 for each
writ petition. Even though a number of writ petitiorui are disposed of on
the same point of law or facts or even when the matter is covered by an
earlier judgment he would be entitled to the fee amounting to a sum
equivalent to the number of writ petitions disposed of, multiplied by Rs.
F 100..
The appellant was receiving fees as per these stipulations for over
three years. However, on 27th August, 1975 he was visited with the follow-
ing comm'1!1ication :
G "H9ME (JAILS & JUDICIAL) DEPARTMENT
NOTIFICATION
The 7th August, 1975.
No.: 12679-21J-75/25572. - In exercise of the powers conferred by
H Article 165 of the Constitution of India and all other powers_
J.S. WASUv. STATE [MOHAN,J.) 489
enabling him in this behalf, the Governor of Punjab is pleased to A
make the following rules further to amend the rules regulating the
remuneration and duties of the Advocate General published with
Punjab Government Notification No. 8746-JJ-53/38717, dated the
6th July 1953 (hereinafter referred to as the Advocated General
Punjab Remuneration and duties) Rules, 1953, namely:
B
1. These rules may be called the Advocate General Punjab
(Remuneration and Duties) (First Amendment) Rules, 1975.
2. In the Advocate General Punjab (Remuneration and Duties)
Rules, 1953, in rule 6 or clause (t), the folfowing shall be substituted C
namely:
"(t) in civil writ cases, letter patent appeals and in applications
for getting certificate of fitness for appeal to the Supreme Court
arising from such civil writ cases and appeals, which shall not be
considered as civil miscellaneous cases the fee shall be one D
hundred rupees per such civil writ or letters patent appeal or
application, as the case may be - provided that in respect of such
cases-
(a) which are decided by one judgment on account of common
questions of law or fact being involved; of E
(b) which are decided on the basis of an earlier judgment on
account of being covered by that judgment; full fee shall be payable
only in one case in which main judgment is delivered and one half
of the fee shall be payable in each connected case subject to the
condition that total fee payable in the main case as well as in the F
connected cases shall not eX<:eed one thousand rupees. ·
R.P. Ojha
Secretary to Government, Punjab,
Home Department." G
As a result of this, the fee payable in cases where it is decided by
one judgment, in batch cases, or on the basis of an earlier judgment on
account of the matter being covered, would be only Rs. 100. In any event,
the total fee was not to exceed Rs. 1,000 where the matters are covered by
a prior judgment. The appellant protested to the Chief Minister about the H
490 SUPREME COURT REPORTS (1993] SUPP. 3 S.C.R.
A alteration of fee structure which resulted in substantial reduction and
requested that the enforcement of the Notification may be kept in
abeyance. A further reminder in this regard was issued on October the 1st,
1975.
As a result of these, a meeting was convened on 14th July, 1976 by
B the Home Secretary to Government of Punjab to consider the issue in the
presence of the appellant. Several suggestions were made in the course of
a detailed discussion. The appellant, however, insisted on the restoration
of original terms. By a communication dated 8/lOth September,1976 he
conveyed his views to the Secretary, Home Department, Government of
C Punjab. The appellant would have it that the terms for restoring fee
structure found favour with the Government. To that effect a proposal was
made by the Home Department and was submitted to the then Chief
Minister who accepted the proposal to revoke the Notification dated 7th
August, 1975 and file was marked to the Secretary for issue of orders. But,
D the Law Department advised that the matter be placed before the Cabinet.
The Cabinet resolved that a Sub-Committee might look into the matter and
report back to the Cabinet. At this stage, the Congress Government went
out of office on April, the 30th, 1977.
With the exit of Congress Government, the State of Punjab came
E under President's Rule. The appellant offered to resign his post. However,
he was requested to continue till the formation of the new Government.
Eventually, his resignation was accepted on June 24, 1977. Even before this,
on June 8, 1977 the Governor on the advice of his Adviser, took a decision
to scrap the resolution of the Cabinet and to refer the matter to the two-
F member Sub-Committee in relation to the fixation of fee of ·th~ Advocate
General. The appellant protested against this by his letter dated 10/14th
June, 1977. After the formation of the new Government, the matter was
taken up by. the appellant with the new Government. He also req'1ested
the successor Advocate General to take up the matter with the Chief
Minister in July, 1977.
G
The bills on account of the writ petition conducted by the appenlnt
for the months of August 1975 to May 1977.which were prepared according
to the original scale of fees were returned 1zy the Under Secretary (Home)
to the appellant on August 17, 1977. He was· asked to present the bills
H according to the terms of the Notification dated 7th August, 1975. There·
J.S. WASUv. STATE [MOHAN,J.) 491
after the 'appellant spoke to the Advocate General, Punjab. He also wrote A
a letter to him on 15th Novembe~, 1977. The further letters dated February
16, 1978 and March 25, 1978 also proved fruitless. The appellant received
a cryptic reply on 5.5.78 to the following effect :
"From
B
The Home Secretary to Government, Punjab.
To
Shri Joginder Singh Wasu,
Ex : Advocate General Punjab, c
86, Sector 2, Chandigarh.
Memo No: 5054-211-78/13944
Dated 5.5.78.
Reference your letters dated 16.2.78 and 25:3.78 regarding D
clearance of your pending fee bills.
2. YOU are requested to send revised fee bills in accordance with
the amendment issued vi.de Punjab Government notification No.
12679-2JJ-72125572, dated 7.8.78. E
sd/-
Under Secretary Home,
For Home Secretary to
Government, Punjab. 2/5"
F
Thereupon, he preferred civil writ petition No. 2252 of 1978. That
was dismissed in limine by judgment dated 24.5.78. Hence, this appeal by
special leave to appeal.
The learned counsel for the appellant submits that under Article 165
of the Constitution of India the appellant was appointed as Advocate G
· General. Having regard to the terms of clause (2) of that Article once an
Advocate General is appointed on certain terms in relation to the fees
given to him an assurance as to the terms of employment is given. Such
-·terms cannot be interfered with unilaterally. Even assuming that the Gover-
nor under Article 165 can make any rule relation to the fees of the H
492 SUPREME COURT REPORTS [1993) SUPP.1 S.C.R. ~
A .Advocate General, the impugned Notification 4ated August 7, 1975 cannot
have retrospective operation.
The said Notification dated August 7, 1975 was signed only by the
Chief Minister on behalf of the Government. It was never placed before
the Cabinet nor was it approved as such. An alteration or amendment of
B the terms must necessarily .be considered and approved by the Cabinet;
otherwise it will be invalid. In any event, the impugned Notification was
passed behind the back of the appellant and, therefore, it is invalid.
In opposition to this, learned counsel for the respondent would state
c where essentially the position of the patties is that or an Advocate and a
client it is open to the client to stipul!lte a particular fee. Should the
appellant be unwilling, nothing prevents him from giving up his position as
Advocate General. As a matter of fact, where no effort is made in relation
to disposal of cases like batch cases or in cases which are covered by Garlier
decisions the Government thought· fit that it will not only be prudent but
D also just to award one singe fee. When the appellant ventilated his grievan-
ces a specific conference was convened at a high level and it was found
that no revision was warranted. To contend that it is not possible for the
Government to alter the fees would amount to ignoring the wording of the
Article. Since the Advocate General is to discharge the functions in ac-
E cordance with the law for the time being in force, once a power is given to
fix the fees, the corresponding power to alter the fees from time to time is
equally available. There is no necessity for the matter to be approved by
the entire Cabinet.
The Office of an Advocate General is an exalted one. He is the
F supreme law officer of the State.
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 the appointed a Judge of a High Court to be
G 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
H to time be referred or assigned to him by the Governor, and to
J.S. WASU v. STATE (MOHAN, J.) 493
discharge the functibns conferred on him by or under this Con- A
stitution 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."
B
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.
The functions of the Advocate-General are mentioned in clause (2). C
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; D
(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 E
(iv) to discharge the functions conferred on by him or under any
other law for the time being in force.
It will be seen that the functions of the Advocate-General include .
the performance of duties of a legal character which may ti:om time to time F
be referred to or assigned to him by the Governor.
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 G
Act, 1935, the fore-runner to this Article also, it was provided that the
Advocate-General was to hold office during the pleasure of the Gove~nor
and was to receive such remuneration as the Governor may determine.
Section 55 of the Government of India Act, 1935 reads as under :
"SS. (1) The Governor of each Province shall appoint a person, H
494 SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.
A being a person qualified to be appointed a judge of a High Court,
to be Advocate-General for the 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
B 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."
c 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
D
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, and otherwise to take part in the proeeedings 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."
E
Having regard to his high position when any statement or a conces-
sion is made by him the courts have always accepted his statement and
acted on that. In Periyar and Pareekanni Rubber Ltd. v. State of Kera/a, AIR
(1990) SC 2i92 at 2199- 2200, this Court observed:
F "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 or
instructions from the responsible officer. Otherwise it would place
G 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 responsibility."
The relationship between the Advocate General and State Govem-
H ment is essentially that of an advocate and a client in relation to his
J.S. WASUv. STATE [MOHAN,J.] 495
appearance in court and arguing the case before the Court on behalf of A
the State. No doubt, the appellant came to be appointed on certain terms
envisaged under notification dated 6th July, 1953. It did stipulate Rs. 100
for each of the writ petition irrespective of the fact whether it was a batch
.case or cases covered by the earlier judgments of the court. But we are
unable to accept the contention of the appellant that the notification can
never be amended. In fact, the notification clearly stipulates "as amended B
from time to time." Therefore, the fees fixed in clause 6(t) under notifica-
tion dated 6th July, 1953 cannot remain unaltered. In passing, we may
observe to accept the argument of the appellant would mean it cannot be
amended even for enhancing the fees. It so happens in this case there is a
reduction of fees. That it should remain static for all times to come is an C
argument which we find difficult to accept. Nor can it be contended that
during his terins it cannot be changed at all. No doubt, the appellant was
greatly affected by the amendment proposing one set of fees in batch cases
·as well as cases covered by earlier judgments. It also requires to be noted
that a meeting was convened on 14th July, 1976 for rationalisation and
revision of fees payable to the Advocate General and the law officers. The D
matter was discussed at some length. Before these conclusions could
fructify into a rule, the then Government fell down. Once, as observed
above, the relationship between the parties , namely, the Advocate General
and the State is that of an Advocate and a client, a client may propose the
fees. It is open to the Advocate to stipulate a higher fee. If that is not
agreed to he cannot compel the client that he must be entrusted with the E
brief for him to conduct on the stipulated fee by him. May be, the State
Government, for reasons best known to itself, is not agreeable to the old
fee structure~ The position of t}le State vis-a-vis the Advocate General may
be described in the words of William Shakespeare :
"Whose worth is unknown, F
Although his height be taken."
But the Advocate-General cannot say that he shall be continued on
the same terms .of appointment. He no doubt asked the State Government
as W .S. Gilbert said :
G
"Take heart of grace,
They steps retrace."
But once that is not forthcoming he will have to bid good bye as
Alfred De Musset said : H
496 SUPREME COURT REPORTS {1993] SUPP. 3 S.C.R.
A "Malgre moi me tourmente :
I can't help it,
the idea torments me."
We have already referred to the letter dated 5.5.1978 wherein the
B appellant was requested to send the revised bill for the work done by him.
The appellant shall send the revised bill as per that request. Within four
weeks from the date of receipt of revised bill, the entire amount due to
him shall be calculated in accordance with the amended notification No.
12679~2JJ-";3/25572 dated 7.8.1975 and shall be paid to him together with
interest @ 12% per annum. We are obliged to award interest since the
C Government had the benefit of use of the said amount for a long number
of years.
Subject to the above direction, the Civil Appeal is dismissed. How-
ever, there shall be no order as to costs.
R.P. Appeal Dismissed.
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