Supreme Court of India
STATE OF U.P. AND ORS. ETCversusU.P. STATE LAW OFFICERS ASSOCIATION AND ORS. ETC.
- Citation
- 1994 INSC 28
- Decided
- 25 January 1994
- Disposal
- Appeal(s) allowed
- Bench
- P B SAWANT
Holding
The State Government’s orders terminating the law officers’ appointments and abolishing the brief‑holder system were valid and proper, as the appointments were contractual engagements terminable at will and not protected by Article 14.
Summary
The Uttar Pradesh State Government appointed law officers and brief holders on contracts that allowed termination at any time without cause. The government later abolished the brief‑holder system and removed 26 law officers, prompting the officers to file a writ alleging violation of Article 14 and natural justice. The Allahabad High Court set aside the removal orders and directed reinstatement and payment of remuneration. On appeal, the Supreme Court examined the nature of these appointments, the requirement to select the most meritorious under Article 14, and the discretionary power of the State in appointing and terminating such contractual engagements. It held that the appointments were professional contracts terminable at will, not protected by Article 14, and that the government’s orders were valid and proper. Consequently, the High Court’s judgment was set aside and the appeals were allowed.
Issues considered
- The validity of terminating law officers appointed on contracts that allow removal at any time without reason under Article 14 of the Constitution.
- Whether the abolition of the brief‑holder system by the State Government is lawful.
- Whether the appointment process for law officers and brief holders complies with the constitutional requirement to select the most meritorious.
- Whether the High Court erred in quashing the removal orders and directing reinstatement and payment.
- The scope of the Legal Remembrancer’s powers in the appointment and supervision of government counsel.
Legislation cited
- Bar Council of India Ruless. Rule 49
- Constitution of Indias. Article 14
Subjects
Article 14law officersbrief holdersappointment and removalnatural justicepublic sector legal servicescontractual engagementLegal RemembrancerUttar Pradeshhigh court
Judgment
A STATE OF U.P. AND ORS. ETC.
v.
U.P. STATE LAW OFFICERS ASSOCIATION AND ORS. ETC.
+
JANUARY 25, 1994
B [P.B. SAWANT AND N. VENKATACHALA, JJ.]
Constitution of India, 1950: Article 14-Law Officers and Brief Holders
appointed by State Government to conduct its cases in High Court-Removal
of-Held, valid and proper as their appointment was itself arbitrary and was
c made in disregard of the Articl~The mode of appointment of lawyers for
public bodies has to be in conjormity with the obligation case on them to
select the most meritorious.
Legal Remembrancer's Manual: Chapters V and VI-Law Officers and
Brief Holders for conducting cases in High Court-Appointment of-Terms
D of contract stipulating that appointment could be terminated at any time
without assigning reason-Held, such appointments are made, accepted and
understood by both sides to be purely professional engagements till they last.
,.
Professional Engagement: Legal profession-Nature of-Appointment
of Law Officers for public bodies-Modes of appointment and removal-
E Obligation cast on public bodies to select the most meritorious--Held, an
open invitation to lawyers to compete is by for the best mode of selection-ln
certain circumstances method of inviting and appointing the best available
may be adopte~Whatever the method adopted, it must be shown that search
for meritorious was undertaken and appointments were made only on the
F basis of merit and not for any other consideration.
The State Government of Uttar Pradesh engaged lawyers as Chief ·
Standing Counsel, Standing Counsel on the civil side and Government
Advocate, Additional Government Advocate, Deputy Government Advocate
and Assistant Government Advocate on the Criminal side, to attend to the
G Government work in the High Court of Allahabad and its Lucknow Bench.
The terms of appointment of these Law Officers contained a condition that
notwithstanding the period for which they were appointed, they could be
removed at any time without giving any reason whatsoever. The Govern- 1--
ment also appointed Brief Holders frolJl amongst the practising advocates
H to conduct such civil and criminal cases in the High Court as would be
348
STATEOFU.P. v. U.P.LAWOFFICERSASSN. 349
entrusted to them, with the stipulation that-such appointment would not A
be deemed to be appointment to any office or post but only professional
engagement to be terminated on either side at will.
The State Government by its order dated 26.5.1990 abolished the
system of engaging Brief Holders in the High Court with immediate effect
and by order dated 23.7.1990 removed 26 out of its 64 Law Officer working B
in the High Court. By yet another order dated 28.6.1990 the Government
authorised the Legal Remembrancer to appoint special counsel and gave
him financial and administrative powers which were earlier exercised by
the Chief Standing Counsel and the Public Prosecutor. He was also given
power to distribute the work to various Standing Counsel and Additional C
Public Prosemtors.
The Law Officers and the Brief Holders filed a Writ Petition before
the High Court contending that their removal was against the principles
of natural justice and that they could be removed from their officer only
for valid reasons. D
The High Court allowed the Writ Petition and quashed the ord~s
dated 25.5.1990 and 23.7.1990 as also all the fresh appointments made by
the State Government, and directed payment of remuneration to th~w
Officers who were removed. It also made observations against the ilgaI
Remembrancer. E
The State and the newly appointed Law Officer filed appeals, by
special leave, before the Court,
Allowing the appeals, this Court
F
HELD: 1. Both the orders dated 23.7.1990 and 26.5.1990 passed by
the State Government terminating the appointment of the respondent-Law
Officers and abolishing the system of Brief Holders respectively are valid
and proper. The High Court committed a patent error of law in setting
aside the two orders. The judgment of the High Court is set aside. Conse- G
quently, the order of the High Court quashing the fresh appointments and
directing payment to officers whose appointments were terminated is set
[ aside, and its direction to the Government to continue the system of the
Brief Holders stands quashed. [367-D-E]
2.1. Chapter V of the Legal Remembrancer's Manual indicates that H
350 SUPREME COURT REPORTS {1994] 1 S.C.R.
A to appoint the Chief Standing Counsel, Standing Counsel and the Govern·
ment Advocate, Additional Government Advocate, Deputy Government
Advocate and ¥sistant Government Advocate, the State Government is
under no obligation to consult even its Advocate General much less the
Chief Justice or any Judges of the High Court or to take into consideration,
the views of any Committee that 'may' be constituted for the purpose. Even
B where it chooses to consult them, their views are not binding on it. The
method of appointment is indeed not calculated to ensure that the
meritorious alone will always be appointed or that the appointments made
will not be on considerations other than merit. In the absence of guidelines,
the appointments may be made purely on personal or political considera·
c ti on~and be arbitrary. This being so, those who come to be appointed by
suchJ arbitrary procedure, can hardly complain of termination of their
appointment, particularly, when the order of appointment itself stipulates
that the appointment is terminable at any time without assigning any
reason·!such appointments are made, accepted and understood by both
D sides to be purely professional engagements till they last. [364-B-E]
2.2. In the instant case, out of 26 respondent-Law Officers, the period
of contract of nine of them had expired and they were continued till further
orders. The remaining 17 had continued after the expiry of their initial
term without even formal orders of extention. None of the 26 officers had
E any right to hold the office on the date of their removal, even under the
initial terms of appointment which stipulated the contractual period. The
terms of the contracts also provided that the appointment could be ter·
minated at any time without assigning any reason. Besides, the appoint·
ment of these Law Officers itself was arbitrary and was made in disregard
of Article 14 of the Constitution. [364-H; 365-A-G]
F
Kumari Shrilekha Vidyarthi & Ors. v. State of Uttar Pradesh and Ors.,
[1991) 1 S.C.C. 212, inapplicable.
2.3. The fact that the appointment of Law Officers are made by
G public bodies cannot vest them with additional sanctity. Every appoint·
ment made to a public office, howsoever made, is not necessarily vested
with public sanctity. There is, therefore, no public interest involved in
saving all appointments irrespective of their mode. From the inception
some engagements and contracts may be the product of the operation of
H the spoils system. There need be no legal anxiety to save them. [364-G]
STATEOFU.P. v. U.P.LAWOFFICERSASSN. 351
2.4. The District Government Counsel being selected strictly on merit A
+ and for no other consideration, and after screening at different levels, as
envisaged by Chapter VII of the Legal Remembrancer's Manual, are
entitled to continue in their officer for the period of the contract of their
engagement and they can be removed .only for valid reasons. Termination
of their services otherwise is not consistent with the public interest. The
people are interested in their continuance for the period of their contracts
B
and in their non-substitution by those who may come through the spoils
system. [365-F-G]
-I Kumari Shrilekha Vidyarthi and Ors. v. State of Uttar Pradesh and Ors.,
[1991) 1 S.C.C. 212, reiterated. C
3. The Government cannot be said to have erred in abolishing the
system of brief holders and in taking a decision to appoint each time
special counsel for special cases in their place. The Brief Holders, being
advocates of the High Court, are empanelled by the State Government, as
envisaged by Chapter VI of the Manual only in consultation with the D
Advocate General. Their selection is not made after open competition.
Their appointment is in supernumerary capacity, purely at the discretion
of the State Govt. They are appointed to handle the work that may be
surplus with the Government Advocate and Chief Standing Counsel. No
salary or any other kind of monthly remuneration is payable to them. They E
are paid per brief handled by them. They are not barred from private
practice or from accepting cases against the Government. They are like ad
hoc counsel engaged for doing a particular work when available. [366-D-F]
4.1. The appointment of lawyers by the Government and the public
bodies to conduct work on their behalf and their subsequent removal from F
such appointment involves the nature of the legal profession, the interest
of the public and the mode of appointment and removal. [362-8)
4.2. Legal profession is essentially a service oriented profession.
Though the lawyers on the full-time rolls of the Government or the public
bodies are described as their Law Officers, the Government and public G
bodies engage their services purely on a contractual basis either for a
specified case or for a specified or unspecified period. Although the
contract in some cases prohibits the lawyers from accepting private briefs,
the nature of the contract does not alter from one of professional engage-
ment to that of employment. The lawyer of the Government or a public H
352 SUPREME COURT REPORTS (1994] 1 S.C.R.
A body is not its employee but is a professional practitioner engaged to do
the specified work. It is precisely for this reason that in the case of such ~
Law Officers, the saving clause of Rule 49 of the Bar Council of India Rules
waive~ the prohibition imposed by the said rule against the accepta~ce by
a lawyer of a full-time employment. [362-C-F)"
B 4.3. The relationship between the lawyer and his client is one of trust
and confidence. The client engages a lawyer for personal reasons and is
at liberty to leave him also, for the same reasons. He is under no
obligation to give reasons for withdrawing his brief from his lawyer. The
Lawyer in tum is not an agent of his client but his dignified responsible
C spokesman. He is essentially an advisor to his client and is rightly called
a counsel in some jurisdictions. [362-G-H]
4.4. Being a responsible officer of the Court and an important
adjunct of the administration of justice, the lawyer also owes a duty to the
Court as well as to the opposite side. He has to be fair to ensure that
D justice is done. He demeans himself if he acts merely as a mouthpiece of
his client. This relationship between the lawyer and the private client is
equally valid between him and the public bodies. [363-B]
4.5. The mode of appointment of lawyers for the public bodies has
to be in conformity with the obligation cast on them to select the most
E meritorious. An open invitation to the lawyers to compete for the posts is
by far the best mode of such selection. But sometimes the best may not
compete or a competent candidate may not be available from among the
competitors. In such circumstances, the public bodies may resort to other
methods such as inviting and appointing the best available, although he
F may not have applied for the post. Whatever the method adopted, it must
be shown that the search for the meritorious was undertaken and the
appointments were made only on the basis of the merit and not for any
other consideration. [363-G-H; 364-A]
5. The judgment of the High Court ignores that, as envisaged by
Chapters V, VI and VII of the Manual of Legal Remembrancer, the Legal
Remembrancer, being a responsible officer and part of the Government,
always had a role to play in the appointments of the counsel, in the
distribution of the work among them and also in supervising their work . r-
and in sanctioning their bills. No material additional power has been
H vested in him by the Government by orders dated 25.5;1990, 28.6.1990 and
STATEOFU.P. v. U.P.LAWOFFICERSASSN. [SAWANT,J.] 353
. 23.7.1990. In any case, if the Government has chosen to do so, the Legal A
Remembrancer can hardly be blamed for the same. The comments and
observations made by the High Court against the Legal Remebrancer are
both unjustified and unfortunate. (367-A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeals No. 662-68 of
1991 etc. etc. B
·From the Judgment and Order dated 12.11.1990 of the Allahabad
High Court in W.P. No. 22578, 12942, 24928/89, 19731, 20188, 20183, 20182
-<r- of 1990.
D.V. Sehgal, B.S. Chauhan, Ms. Alica Agrawal, AK. Goel, R.B. c
Misra, Manoj Swarup and Ms. Lalitha Kohli for the Appellants.
G.L. Sanghi, K.K. Venugopal, Mohan Pandey, R.D. Upadhyay, Sub-
hash Chandra Jain, S.K. Misra, Sunil Ambwani, M.V. Goswami, N. Kaushik
and S. Razvi for the Respondents.
D
The Judgment of the Court was delivered by
SAWANT, J. Leave granted in S.L.P. Nos. 14525 and 4912 of 1991.
1. This group of appeals raises an important question with regard to E
the status of the law officers engaged by the State Government to co11duct
the cases on its behalf in the High Court. Incidentally, questions bearing
on the profession of the lawyer, his relationship with his client, and the
relationship of the Government and for that matter of all the public bodies
with the lawyers they engage for conducting their matters, also fall for
consideration. F
2. At the relevant time, there were 64 law officers working for the
Uttar Pradesh State Government in the High Court of Allahabad including
its Lucknow Bench. By an order dated 23.7.1990, the State Government
removed 26 of the said law officers. Out of these, 9 law officers had been
working for a long time, some of them for more than 15 years. Their G
continuation as law officers was till further orders. Another 11 officers of
the removed officers had been appointed in 1982-83 and they continued to
work till the date of their removal without renewal of their term. The
remaining six law officers were appointed variously in March and May,
1989 for a period of one year only with a stipulation that they could be H
354 SUPREME COURT REPORTS (1994) 1 S.C.R.
A removed any time without giving any reason whatsoever. Their term had
also not been renewed after the expiry of the initial period of their
appointment. There is no dispute that in cases of all these 26 officers and
indeed in cases of all the law officers appointed in the High Court, the
terms of appointment contained a condition that notwithstanding the
B period for which they were appointed, they could be removed at any time
without giving any reason whatsoever.
3. It appears that before issuance of the aforesaid order of removal
dated 23.7.1990, the State Government had issued another order on
26.5.1990 by which the system of engaging Brief Holders in the High Court
C was abolis!ied with immediate effect. By yet another order of 28.6.1990, the
Government had authorised the Legal Remembrancer to appoint Special
Counsel for any special matter before the High Court. The order also gave
him financial and administrative powers which were earlier exerr,ised by
the Chief Standing Counsel and the Public Prosecutor. He was further
D given power to distribute the work to the various Standing Counsel and the
Additional Public Prosecutors.
4. Aggrieved by the order dated 23.7.1990, the law officers who were
removed from their posts, and aggrieved by the order of 26.5.1990, the then
Brief Holders approached the High Court by a writ petition contending,
E among other things, that their removal was against the principles of natural
justice and that they could be removed from their officers only for valid
reasons. The High Court accepted the contention of the law officers and
by its impugned judgment, quashed the orders removing them from their
offices. The High Court also quashed the ordd dated 26.5.1990 passed by
p the State Government by which the Government had abolished the system
of the engagement of Brief Holders and directed the respondents to
continue the said system. The High Court further quashed all the fresh
appointme.nts made by the State Government and directed the payment of
remuneration to the officers who were removed, from the date of their
removal. In the course of the judgment, the High Court has also made
G observations against the Legal Remembrancer. These appeals are, there-
fore, preferred by the State as wel: as those who were newly appointed by
the State Government as its law officers.
5. Before we refer to the contentions advanced on both sides, it
H would be worthwhile to explain the system which was prevalent in the State
STATEOFU.P. v. U.P.LAWOFFICERSASSN.(SAWANT,J.] 355
for engaging lawyers to attend to the Government-work in the High Court A
and also the role assigned to the Legal Remembrancer vis-a-vis the
Government lawyers. Chapter V of the Legal Remembrancer's Manual
(hereinafter referred to as the 'Manual') deals with the Chief Standing
Counsel and the Standing Counsel in the High Court and Chapter V1 of
the said Manual deals with Brief Holders in the High Court. Chapter VII
deals with District Government Counsel with whom we are not concerned B
in the present appeals. However, that chapter has a bearing on the cont'!n-
tions advanced before us and we will deal with the same while discussing
the contentions. Suffice it for the present to bear in mind that the appoint-
ment and conditions of engagement of District Government Counsel have
been dealt with in the said Manual separately from the appointment of the C
Chief Standing Counsel, Standing Counsel and Brief Holders in the High
Court.
6. Paragraph 5.01 of Chapter V states that there shall be one Chief
Standing Counsel for the High Court at Allahabad anJ another for its D
Lucknow Bench and such number of Standing Counsel at both the said
. ~· Benches as the State Government may from time to time appoint. Para-
graph 5.02 states that in making the appointments of the Chief Standing
Counsel as well as the Standing Counsel, the State Governmt:nt "may, if
considered necessary" take into consideration the views of the Advocate
General or the Chief Justice or any Judges of the High Court or of any E
Committee that "may be" constituted for the purpose. Paragraph 5.03 then
refers to the· responsibility of the Chief Standing Counsel for conducting
the cases. It states that he shall be responsible for the conduct of all civil
cases in the High Court to which the State Government is a party except
such cases or class of cases as are excluded by the State Government by F
general or special order. It further states that the Chief Standing Counsel
shall work subject to such gene<ral or special directions as may be issued
by the Advocate General or the Legal Remembrancer from time to time.
Sub-paragraph (2) of the said paragraph states that the Government may
entrust any case of special importance to the Advocate General or to a
Special Counsel. Paragraph 5.04 refers to the duties of the Chief Standing G
Counsel. These duties include (i) representation of the State or of any
authority within the State in such other civil cases in which he might be
directed or required to appear by the Government, the Legal Remembran-
cer or the High Court; (ii) to present to the High Court under instructions
from the Legal Remembrancer, appeals, or applications or petitions on H
'
356 SUPREME COURT REPORTS [1994] 1 S.C.R.
A behalf of the State; (iii) to advise the Government or the Legal
Remembrancer when so required in any matter of a civil nature; (iv) to
make suitable arrangements for the conduct of civil cases in the High Court +
in accordance with any general or special order of the Government or the
Legal Remembrancer; (v) to assign cases to the Standing Counsel and then
B to the Brief Holders appointed by the Government; (vi) to report to the
Legal Remembrancer the cases in which the State Counsel had been
adversely commented upon by the High Court; (vii) to procure and submit
to the legal Remembrancer copies of any judgment or order of the High
Court that the Government may require or where immediate steps by the
State Government are necessary; (viii) to ask for instructions from the
C Legal Remembrancer in regard to the contest of the matters on behalf of
the State Government; (ix) to report to the Legal Remembrancer the
receipt of any process on behalf of the Government and to furnish to him
with a copy of the memo of appeal, revision or application as the case may
be; (x) to send his opinion to the Legal Remembrancer as to whether any
D case is fit for further appeal to the Supreme Court and to submit to the
Legal Remembrancer such returns as the latter may from time to time
prescribe or require.
7. Paragraph 5.05 refers to the duties of Standing Counsel and states
that the Standing Counsel shall generally assist the Chief Standing Counsel
E in performing. his duties and functions and shall perform such functions
and conduct such cases as may be. allotted to them by the Chief Standing
Counsel or by any general or special order of the Government. Paragraph
5.07 places restriction on private practice of both the Chief .Standing
Counsel and Standing Counsel. It states that they shall not, save with the
F special permission, appear against the State in any civil case or proceeding
nor shall they advise any private party regarding any civil case which might
be pending or is likely to be instituted against the State or any State
authority. It also states that they shall not, without the permission of the
Legal Remembrancer communicate directly or indirectly to any person or
authority the contents of any documents or ~onvey any information which
G has come to their possession or knowledge in the course of their duties in
any case in which they appear on behalf of the State Government. They
shall also not accept any appointment as Director of any company without
the previous sanction of the Government. Paragraph 5.08 requires the -r·
Chief Standing Counsel to arrange and regulate work in such a ~~1.anner
H that an adequate number of Standing Counsel and/or Brief Holders are
...........
STATEOFU.P. v. U.P.LAWOFFICERSASSN.[SAWANT,J.] 357
present in the High Court on every day on which cases under his charge A
are fixed for hearing. Paragraph 5.10 gives power to the State Government
to transfer the Chief Standing Counsel or any Standing Counsel from
Allahabad to Lucknow and vice versa in consultation with the Advocate
General for such period and on such terms as may be determined by the
Government. They may also be asked by the Legal Remembrancer to B
appear on behalf of the State Government in any civil case in any Court in
the State in or outside Allahabad or Lucknow. Paragraph 5.16 requires that
except when otherwise expressly provided, all communications between the
Government and the Chief Standing Counsel and the Standing Counsel
shall be made through the Legal Remembrancer except in cases of urgency.
But even in such cases, the copy of the communications shall invariably be C
sent to the Legal Remembrancer. It is not necessary to refer to the other
provisions of this chapter.
8. Paragraph 6.02 of Chapter VI which deals with the Brief Holders
in the High Court refers to the appointment of a panel of Brief Holders D
in the High Court. It states that the State Government may in consultation
-+- with the Advocate General appoint such number of Brief Holders from
amongst the practicing advocates in the High Court as it may deem
necessary from time to time to conduct such civil and criminal cases in the
High Court as may be entrusted to them. The paragraph makes it clear
that such appointments "shall not be deemed to be appointment to any E
office or post but only professional engagement which shall be terminable
on either side at will." It requires a minimum of 5 years' practice at the bar
for appointment as a Brief Holder. Paragraph 6.03 states that a Brief
Holder shall ordinarily be appointed in the first instance for a period not
exceeding one year and that the subsequent appointments may be for such F
number of years not exceeding three as the State Government may deem
necessary from time to time. The remuneration of the Brief Holders is
referred to at Paragraph 6.04. On the civil side, the Brief Holder is entitled
to the same fee as would be payable to a Standing Counsel for doing similar
work and on the criminal side, the remuneration is mentioned in terms of
fee per day irrespective of the number of cases conducted and the hours G
of work put in by him. No salary or any other kind of monthly remuneration
is payable to him. In case of dispute with regard to the fee, the decision of
the Legal Remembrancer is to be final. Paragraph 6.05 states that it is the
Government Advocate who shall allot criminal ca&es and the Chief Stand-
ing Counsel who sha 11 allot civil cases to the Brief Holders and shall also H
358 SUPREME COURT REPORTS [1994] 1 S.C.R.
A exercise supervision and control over them. Paragraph 6.06 then states that
the Government Advocate and the Chief Standing Counsel shall entrust
only such cases to the Brief Holders which cannot be attended to by them +
oi other law officers under them and which are not required to be con-
ducted personally by them. It also details classes of cases which shall not,
ordinarily, be entrusted to the Brief Holders. Paragraph 6.07 requires the
B entrustment of cases to the Brief Holders by rotation in a manner as may
ensure an equitable distribution of work among all the of them except
where the Government Advocate or the Chief Standing Counsel may in the
interest of the better prosecution of cases think it necessary to depart from
the rule. Paragraph 6.11 gives the Brief Holder, the right to private practice "j--·
c and also for accepting cases against the Government. Paragraph 6.13 refers
to the manner of removal of Brief Holder and states that the Government
may at any time without prior notice and without assigning any reason
whatsoever, remove the name of the Brief Holder from its panel. Paragraph
6.16 prf·hibits Brief Holders from participating in any political Brief
D Holders from participating in any political activity so long as they work as
Brief Holders. The other provision of the chapter are not relevant for our
purpose.
9. The conditions of service of the Government Advocate and Addi-
tional Government Advocate, Deputy Government Advocate or Assistant
E Government Advocate for conducting criminal matters in the High Court
are the same as that of the Chief Standing Counsel and the Standing
Counsel respectively.
10. Since the respondents have relied heavily on a judgment of this
p Court in Kumari Shrj.lekha Vidyarthi and Others v. State of Uttar Pradesh
others, [1991] 1 S.C.C. 212, which deals specifically with appointments and
removal of the District Government Counsel and the AdditionaVAssistant
District Government Counsel, and the appellants have tried to distinguish
the said judgment, it is necessary to examine the relevant conditions of
service of the District Government Counsel as detailed in Chapter VII of
G the said Manual. The District Government Counsel are legal practitioners
appointed by the State Government to conduct in any court other than the
High Court such civil, criminal or revenue cases on behalf of the State
Government as may be assigned to them either generally or specially r-
(Paragraph 7.01). The Government have also the power to appoint Addi-
H tional or Assistant District Government Counsel or Subordinate District
STATE OFU.P. v. U.P. LAW OFFICERS ASSN. [SAWANT,J.] 359
Government Counsel to assist the District Government Counsel (Para- A
graph 7.02). Paragraph 7.03 relates to the appointment of the District
-+ Government Counsel. Whenever the post of any of the District Govern-
ment Counsel is likely to fall vacant or when a new post has been created,
the concerned District Magistrate has to notify the vacancy to the members
of the Bar. The qualification for appointment as a District Government B
Counsel, Assistant District Government Counsel and Sub-District Govern-
ment Counsel is 10 years', 7 years', and 5 ye.ars' practice respectively. The
District Magistrate shall also ask those who want to be considered for
appointment to give theil' names to him with their particulars such as age,
length of practice at the Bar, proficiency in Hindi, income tax paid by him
on professional income during the last three years, details of the work C
handled by them during the preceding two years duly verified by the court
and also to state whether they have practiced on the criminal, civil or
revenue side. The District Government Counsel and the legal practitioners
of the neighboring districts are also eligible to be considered for the said
post and they have to forward their particulars through their District D
Magistrate who has to offer bis own remarks on the particulars so given.
When the names are so received, they have to be considered by the District
Magistrate in consultation with the District Judge. The District Magistrate
has to give due weight to the claim of the existing in~mbents if any, and
has to submit confidentially in the order of preference the names of the E
legal practitioners to the Legal Remembrancer. He has also to give bis
opinion, particularly, about the character, professional conduct and in-
tegrity of the candidate and forward to the Legal Remembrancer the
opinion of the District Judge on the suitability and merits of each can-
didate. The District Magistrate has also to send to the Legal Remembran-
cer, the bio data submitted by other candidates with such comments that
F
he and the District Judge may like to make. The District Magistrate is also
required to recommend the name of any person who may be considered
fit by him although he has not formally supplied has particulars. Paragraph
7.04 then states that on receipt of the recommendations of the District
magistrate, the Legal Remembrancer may, if necessary, make such further G
inquiry about the candidate as he may deem necessary and then submit the
recommendations of the District Magistrate along with his own opinion for
the orders of the Government whose c_-cision shall be final. Paragraph 7.06
states that the legal practitions who are finally selected by the Government
may be appointed District Government Counsel for one year. At the end H
360 SUPREME COURT REPORTS [1994) 1 S.C.R.
A of the period of one year, the District Magistrate after consulting the
District Judge has to submit a report on his work and conduct to the Legal
Remembrancer together with the statement of work done by him. If his +
work and conduct are found to be unsatisfa<'.tory, the matter has to be
reported to the Government for orders. ff the report on his work and
conduct is satisfactory, the appointee may be furnished with a deed of
B
engagement in From No. 1 annexed to the manual and the engagement is
to be for a term not exceeding three years. The said paragraph makes it
explicitly clear that the appointment of a legal practitioner as District
Government Counsel is only a professional engagement terminable at will
on either side and is not an appointment to a post under the Government.
C Accordingly, the Government reserves the power to terminate the appoint-
ment of any District Government Counsel at any time without assigning
any reason. Para 7.07 bars the District Government Counsel from par-
ticipating in political activities. Paragraph 7.08 deals with the renewal of
the term of the District Government Counsel and states that at least three
D months before the expiry of the term, the District Magistrate shall after
consulting the District Judge and considering the incumbent's past record
of work and conduct and age, report to the Legal Remembrancer together
with a statement of work done by him, whether in his opinion, the term of
appointment of such counsel should be renewed or not. The District
E Magistrate has to send along with his own recommendations, the opinion
of the District Judge. While giving his recommendations for renewal of the
term, the District Judge has to give an estimate of the quality of the
counsel's work from the judicial standpoint, his capacity as a lawyer and
his professional conduct. Similarly, the District Magistrate while giving his
report about the suitability of the District Government Counsel from the
F administrative point of view, has to report on the candidate's public reputa-
tion in general, his character, integrity and professional conduct. If the
'Government agrees with the recommendations of the District Magistrate
for the renewal of the term of the Government Counsel, it may pass orders
for rr-appointing him for a period not exceeding three years. If the Govern-
G ment decides not to reappoint any Government Counsel, the Legal
Remembrancer may call upon the District Magistrate to forward fresh
recommendations. This procedure is to be followed on the expiry of every
successive period of renewed appointment. For the above purpose, the
District Magistrate and the District Judge is required to keep a character
H roll and maintain a record of the work done by the District Government
STATEOFU.P. v. U.P.LAWOFFICERSASSN.[SAWANT,J.] 361
Counsel and the capacity displayed by him in the discharge of his work. A
+ The Government (in Judicial Advice section) is also required to keep
similar character roll based upon the copy of the confidential reports
recorded by the District Magistrate and the District Judge, and forward it
to the Legal Remembrancer. The shortcomings on the part of the District
Government Counsel have all one to be brought to the notice of the Legal B
Remembrancer. The District Government Counsel (Civil), is prohibited
altogether from advising or appearing against the State or Central Govern-
ment in any civil case pertaining to the district or the local area to which
he is appointed. However, he may appear against the State or the Central
Government with the prior permission of the Legal Remembrancer in any
civil case in which he has not been retained by the Government. Subject C
to this restriction, the District Government Counsel (Civil), has a right to
private practice.
11. The District Government Counsel (Civil) is prohibited from
becoming a counsel of any Municipality or Municipal Corporation or other D
-- local authorities of the area to which he is appointed. The Assistant District
Government Counsel (Civil) is prohibited from appearing in suits instituted
by private parties against the State or Union of India in courts in which
according to the allocation or work, he is alone authorised to represent the
State. He is, however, free to take up private cases against the State or E
Union of India in other courts. Similar restriction is placed on the Sub-Dis-
trict Government Counsel. As regards, the District Government Counsel
(Criminal) and Additional District Government Counsel (Criminal), they
are prohibited from appearing for any private party in any criminal case.
However, with certain exceptions, with the prior approval of the Legal
F
Remembrancer, they are allowed to appear. Similar restrictions are placed
on District Government Counsel (Revenue). Para 7.18 states that the
District Government Counsel in a district shall be subject to the supervision
of the Legal Remembrancer as well as the District Magistrate. Their
confidential reports are also to be submitted by the District Magistrate to
the Government. through the Legal Remembrancer. Paragraphs 7.19-7.22 G
deal with the duties of the District Government Counsel (Civil), (Criminal),
(Revenue) respectively. Paragraphs 7.24 and paragraphs 7.'26-7.45 deal
with the fees payable to the District Government Counsel. Para 7.61 gives
power to the Legal Remembrancer to forfeit the fees payable to the
District Government Counsel in certain cases. The conditions of service of H
362 SUPREME COURT REPORTS [1994) 1 S.C.R.
A the Additional/Assistant/Subordinate District Government Counsel are
similar to those of the District Government Counsel mutatis mutandis. +
12. The appointment of lawyers by the Government and the public
bodies to conduct work on their behalf, and their subsequent removal from
such appointment have to be examined from three different angles viz., the
B nature of the legal profession, the interests of the public and the modes of
the appointment and removal.
13. Legal profession is essentially a service-oriented profession. The
ancestor of to-day's· lawyer was no more than a spokesman who rendered
C his services to the needy members of the society by articulating their case
before the authorities that be. The services were rendered without regard
to the remuneration received or to be received. With the growth of litiga-
tion, lawyering became a full-time occupation and most of the lawyers came
to depend upon it as the sole source of livelihood. The nature of the service
D rendered by the lawyers was private till the government and the public
bodies started engaging them to conduct cases on their behalf. The govern-
ment, and the public bodies engaged the services of the lawyers purely on
a contractual basis either for a specified case or for a specified or an
unspecified period. Although the contract in some cases prohibited the
la\\yers from accepting private briefs, the nature of the contract did not
E alter from one of professional engagement to that of employment. The
lawyer of the Government or a public body was not its employee but was
professional practitioner engaged to do the specified work. This is so even
to-day, though the lawyers on the full-time rolls of the government and the
public bodies are described as their law officers. It is precisely for this
p reason that in the case of such law officers, the saving clause of Rule 49 of
the Bar Council of India Rules, waives the prohibition imposed by the said
rule against the acceptance by a lawyer of a full-time employment.
14. The relationship between the lawyer and his client is one of trust
and confidence. The client engages a lawyer for personal reasons and is at
G liberty to leave his also, for the same reasons. He is under no obligation to
give reasons for withdrawing his brief from his lawyer. The lawyer in turn
is not an agent of his client but his dignified, responsible spokesman. He
is not bound to tell the court every fact or urge every proposition of law
which his client wants him to do, however irrelevant it may be. He is
H essentially an advisor to his client and is rightly called a counsel in some
STATEOFU.P. v. U.P.LAWOFFICERSASSN.[SAWANT,J.] 363
jur:isdictions.. Once acquainted with the facts of the case, it is the fawyer's A
discretion to choose the facts and the points of law which he would
advance. Being a responsible officer of the court and an important adjunct
of the administration of justice, the lawyer also owes a duty to the court as
well as to the opposite side. He was to be fair to ensure that justice is done.
He demeans himself if he acts merely as a mouthpiece of his client. This B
relationship between the lawyer and the private client is equally valid
between him and the public bodies.
15. Over the years, the public sector has grown considerably, and
with its extension and expansion, the number of lawyers engaged in the
public sector has increased noticeably, so much so, that it can truly be said C
that to-day there is a public sector in the legal profession as well. The
expansion of the public sector activities has necessitated the maintenance
of a permanent panel of lawyers. Some of the lawyers are also in full-time
employment of the public institutions as their law officers. The profile of
the legal profession has thus undergone a change.
D
- - 16. The Government or the public body represents public interests,
and whoever is in charge of running their affairs, is no more than a trustee
or a custodian of the public interests. The protection of the public interests
to the maximum extent and in the best possible manner is his primary duty.
The public bodies are, therefore, under an obligation to the society to take E
the best possible steps to safeguard its interests. This obligation imposes
on them the duty to engage the most competent servants, agents, advisors,
spokesmen and representatives for conducting their affairs. Hence, in the
selection of their lawyers, they are duty-bound to make earnest efforts to
find the best from among those available at the particular time. This is p
more so because the claims of and against the public bodies are generally
monetarily substantial and socially crucial with far-reaching consequences.
17. The mode of appointment of lawyers for the public bodies,
therefore, has to be in conformity with the obligation cast on them to select G
the most meritorious. An open invitation to the lawyers to compete for the
posts is by far the best mode of such selection. But sometimes the best may
not compete or a competent candidate may not be available from among
the competitors. In such circumstances, the public bodies may resort to
other methods such as inviting and appointing the best available, although
he may not have applied for the post. Whatever the method adopted, it H
364 SUPREME COURT REPORTS [1994) 1 S.C.R.
A must be shown that the search for the meritorious was undertaken and the
appointments were made only on the basis of the merit and not for any
other consideration.
+
18. It would be evident from Chapter V of the said Manual that to
appoint the Chief Standing Counsel, the Standing Counsel and the Govern-
B ment Advocate, Additional Government Advocate, Deputy Government
Advocate and Assistant Government Advocate, the State Government is
under no obligation to consult even its Advocate General must less the
Chief Justice or any judges of the High Court or to take into consideration,
the views of any committee that "may" be constituted for the purpose. The
.,.. -·
c State Government has a discretion. It may or may not ascertain the views
of any of them while making the said appointments. Even where it chooses
to consult them, their views are not binding on it. The appointments may,
therefore, be made on considerations other than merit and there exists no
provision to prevent such appointments. The method of appointment is
D indeed not calculated to ensure that the meritorious alone will always be
appointed or that the appointments made will not be on considerations
other than merit. In the absence of guidelines, the appointments may be
made purely on personal or political considerations, and be arbitrary. This
being so those who come to be appointed by such arbitrary procedure, can
hardly complain if the termination of their appointment is equally arbitrary.
E Those who come by the backdoor have to go by the same door. This is
more so when the order of appointment itself stipulates that the appoint-
ment is terminable at any time without assigning any reason. Such appoint-
ments are made, accepted and understood by both sides to be purely
professional engagements till they last. The fact that they are made by
public bodies cannot vest them with additional sanctity. Every appointment
F
made to a public office, howsoever made, is not necessarily vested with
public sanctity. There is, therefore, no public interest involved in saving all
appointments irrespective of their mode. From the inception some engage-
ments and contracts may be the product of the operation. of the spoils
system. There need be no legal an.'cir-ty to save them.
G
19. As the facts narrated earlier show, out of 26 respondent-law
officers, the period o~ contract of nine of them had expired and they were
continued till further orders. The remaining seventeen had continued after
the expiry of their initial term without even formal orders of extension. In
H other words, none of the 26 officers had any right to hold the office on the
STATEOFU.P. v. U.P. LAW OFFICERS ASSN. [SAWANT,J.] 365
date to their removal, even under the initial terms of appointment which A
stipulated the contractual period. This is apart from the fact that the terms
of the contracts also provided that the appointment could be terminated
at any time without assigning reason. The reliance placed by the respon-
dents in this behalf on Kumari Shrilekha Vidyarthi and Ors. v. State of Uttar
Pradesh and Ors., [1991] 1 S.C.C. 212, is misplaced for the obvious reason
that the decision relates to the appointment of the District Government B
Counsel and the Additional/Assistant District Government Counsel who
are the law officers appointed by the State Government to conduct civil,
criminal and revenue cases in any court other than the High Court. Their
appointments are made through open competition from among those who
are eligible for appointment and strictly on the basis of merit as evidenced
by the particulars of their practice, opinions of the District Magistrate and
c
the District Judge and also after taking into consideration their character
and conduct. Their appointment is in the first instance for one year. It is
only after their satisfactory performance during that period that a deed of
engagement is given to them, and even then the engagement is to be for a
term not exceeding three years. The renewal of their further term again D
--- depends upon the quality of work and conduct, capacity as a lawyer,
professional conduct, public reputation in general, and character and
integrity as certified by the District Magistrate and the District Judge. For
the said purpose, the District Magistrate and the District Judge is required
to maintain a character roll and a record of the work done by the officer
and the capacity displayed by him in discharge of the work. His work is E
also subject to strict supervision. The shortcomings in the work are re-
quired to be brought to the notice of the Legal Remembrancer. It will thus
be seen that the appointment of the two sets of officers viz., the Govern-
ment Counsel in the High Court with whom we are concerned, and the
District Government Counsel with whom the said decision was concerned,
F
are made by dissimilar procedures. The latter are not appointed as a part
of the spoils system. Having been selected on merit and for no other
consideration, they are entitled to continue in their office for the period of
the contract of their engagement and they can be removed only for valid
reasons. The people are interested in their continuance for the period of
their contracts and in their non-substitution by those who may come in G
through the spoils system. It is in these circumstances that this Court held
that the wholesale termination of their services was arbitrary and violative
of Article 14 of the Constitution. The ratio of the said decision can hardly
be applied to the appointments of the law officers in the High Court whose
appointment itself was arbitrary and was made in disregard of Article 14
H
366 SUPREME COURT REPORTS [1994] 1 S.C.R.
A of the Constitution as pointed out above. What is further, sinae the ap-
pointment of District Government Counsel is made strictly on the basis of
comparative merits and after screening at different levels, the termination +
of their services is not consistent with the public interests. We are, there-
fore of the view that the High Court committed a patent error of law in
setting aside the order dated 23.7.1990 terminating the services of the
B respondent-law officers.
20. Coming now to the High Court's order setting aside the Govern-
ment Order dated 26.5.1990 by which the Government had abolished the
system of Brief Holders, and mstead the power was given to the Legal
C Remembrancer to appoint special counsel for special matters, we are of
the view that the High Court has committed a still graver error. As has
been pointed out above, Chapter VI of the said Manual deals with the
system of appointing a panel of Brief Holders in the High Court. The
appointment of the lawyers on the panel of Brief Holders is made by the
State Government only in consultation with the Advocate General who is
D its own officer and from among the advocates of the High Court who have
completed a minimum of five years practice at the Bar. The selection of
Brief Holders is not made after open competition. Their appointment is
purely at the discretion of the State Government. The Brief Holders are
further appointed to handle that work which cannot be attended to by the
Government Advocate and Chief Standing Counsel. No salary or any other
E kind of monthly remuneration is payable to them. They are paid per brief
handled by them. They are not barred from private practice or from
accepting cases against the Government. It will thus be apparent that their
appointment is in supernumerary capacity. It is necessitated because there
may be work which cannot be attended to by the Government Advocate
F and the Chief Standip.g Counsel. They are not assured of any regular work
much less any regular fee or remuneration. They get briefs only if the
Government Advocate and Chief Standing Counsel are over worked and
not otherwise. They are like ad hoc counsel engaged for doing a particular
work when available. There only qualification is that they are on the panel
of the counsel to be so appointed for handling the surplus work. We are,
G therefore, at a loss to understand as to how any fault can be found with
the Government if the Government has now thought it fit to abolish the
said system and to appoint each time special counsel for special cases in
their place.
H 21. It is evident from the tenor of the High Court judgment that the
STATEOFU.P. v. U.P.LAWOFFICERSASSN.[SAWANT,J.) 367
+ Legal Remembrancer has been made a special target and has been treated A
almost ·like the villain of the piece. The judgment ignores that the Legal
Remembrancer as a responsible officer and part of the government always
had a role to play in the appointments of the counsel, in the distribution
of the work among them and also in supervising their work and in sanction-
ing their bills. For this purpose, we have referred to the relevant provisions B
of Chapters V, VI and VII of the Manual in extenso. Even a cursory
reading of the said chapters, will show that no material additional power
has been vested in him _by the Government on account of the present
measures. In any case, if the Government has chosen to do so, the Legal
Remembrancer can hardly be blamed for the same. Certainly he does not
deserve the kind of compliments which the High Court has chosen to pay C
him. The comments and observations made against him are, therefore, both
unjustified and unfortunate.
22. In the result, we set aside the judgment of the High Court and
declare that both the orders dated 23.7.1990 and 26.5.1990 are valid and
proper. We further hold that the termination of the appointment of the D
respondent-law officers was valid and proper. We also hold that the
direction given by the High Court to the Government to continue the
system of Brief Holders is unjustified and the same stands quashed. We
also set aside the order of the High Court quashing the fresh appointments
and directing payments to the officers whose appointments were ter- E
minated. The appeals are allowed accordingly. However, in the circumstan-
ces of the case, there shall be no order as to costs.
R.P. Appeals allowed.
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