THE STATE OF MAHARASHTRA & ANR.versusKISHOR M. GADHAVE PATIL & ORS.

                         [2017] 8 S.C.R. 1021


            THE STATE OF MAHARASHTRA & ANR.                               A
                                  v.
              KISHOR M. GADHAVE PATIL & ORS.
                   (Civil Appeal No. 11199 of2017)
                       SEPTEMBER 05, 2017                                 B

   (R.K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.(
         Maharashtra Law Officers (Appointments, Conditions of
 Service and Remuneration) Rules, 1984 - r.30(5)(6) - Respondents
 were appointed by the State Government as Additional Government          C
 Pleaders (Addl.GP)/Assistant Government Pleaders (AGP)/
 Additional Public Prosecutors (APP) for a Bench of the High Court
 - Respondents accepted their appointment and started functioning
 by discharging their duties in Courts in terms of their appointment
 orders - However, the State Government passed an order and
 cancelled the appointments of.all the respondents by taking recourse     D
 to the powers u/r.30(5) of the Rules -Aggrieved, respondents filed
 writ petition before High Court, which quashed the order of
 cancellation - On appeal, held: During the pendency of the appeal,
 the term of respondents on their respective posts had expired on
 different dates - Now, that even if the impugned order of High Court
 is upheld, the respondents would still not be entitled to continue       E·
·anymore on the post because their respective terms have come to an
 end by efjlux of time during the pendency of the appeal - Further,
 if the cancellation order is upheld, the question of granting any
 relief to respondents would not arise - In the facts and circumstances
 of the case, iflwould be just and proper and in the interest ofjustice   F
 to modify the order of cancellation by treating the same to have
 been passed u/r.30(6) of the Rules - Since, order has been modified
 by treating it to have been passed ulr.30(6), the State directed to
 ensure compliance of r.30(6) and accordingly pay one months
 retainer ·in lieu of notice period to each respondent as was fixed in    G
 their respective appointment letters - Service Law - Cancellation
 of appointments.
       Disposing of the appeal, the Court
     HELD: 1. Even if the impugned order of the High Court is
upheld, the respondents would still not be entitled to continue H
                            1021
1022           SUPREME COURT REPORTS                     [2017] 8 S.C.R.


 A any more on the post because their respective terms have come
   to an end by efflux of time during the pendency of this appeal. It
   is also not in dispute that the said terms were not extended by
   the State and rather curtailed before its expiry period by issuing
   the cancellation order which was impugned in the writ petition
 B before the High Court. It is also not in dispute that if the
   cancellation order is upheld, the question of granting any relief
   to respondents would not arise. (Para 111 (1024-G-H; 1025-A-Bl
          2. Having regard to the background facts, nature of
   controversy, the subsequent events and the consequences which
   are likely to result due to subsequent events occurring in the
 C case, it would be just and proper and in the interest of justice to
   modify the order of cancellation by treating the same to have
   been passed under Rule 30(6) of the Maharashtra Law Officers
   (Appointments, Conditions of Service and Remuneration) Rules,
   1984. In other words, the interest of justice would be fully met if
 D the cancellation order is held to have been passed under to Rule
   30(6). (Para 19) [1026-D-EJ
         3. Since, the order dated 28.08.2015 has been modified by
   treating it to have been passed under Rule 30(6), the State is
   directed to ensure compliance of Rule 30(6) and accordingly pay
 E one month's retainer in lieu of notice period to each respondent
   as was fixed in their respective appointment letters. [Para 201
   (1026-F)
             4. The State would be free to consider the cases of any of
       the respondents for their appointment on any of the post in future,
 F     in case, if the State so desires and while so considering, the
       cancellation order dated 28.08.2015 originally passed by the State
       and now modified by this Court including any observations made
       by the High Court would not come in their way. (Para 22) (1026-
       G-H)
             Kumari Shrilekha Vidyarthi & Ors. v. State of U.P &
 G
             Ors. (1991) 1 SCC 212: (1990) 1 Suppl. SCR 625 ;
             State of U.P & Am: v. Johri Mal (2004) 4 SCC 714 :
             (2004) 1 Suppl. SCR 560 ; State of U.P & Ors. v. Ajay
             Kumar Sharma & Am: (2016) 15 SCC 289 - referred
             to.
 H
   THE STATE OF MAHARASHTRA & ANR. v. K.ISHOR M.                            I023
               GADHAVE PATIL & ORS.

                        Case Law Reference                                  A
      [1990) 1 Suppl. SCR 625          referred to        Para 13
      [2004) 1 Suppl. SCR 560          referred to        Para 13
      c2016) 15 sec 2s9                referred to        Para 13
                                                                            B
    · CIVIL APPELLATE JURISDICTION : Civil Appeal No.11199
of2017.
       From the final Judgment and Order dated 16.12.2015 passed by
the High Court of Judicature of Bombay, Bench atAurangabad in Writ C
PetitionNo.8951/2015.
      Kuna! A. Cheema, Addi. Govt. Adv., Bishant Ramakantrao
Katneshwarkar, Adv. for the Appellants.
     J.P. Cama, Sr. Adv., Rahul Chitnis, Aaditya A. Pantle, Chander
Shekhar Ashri, Dilip Annasaheb Taur, Amol V. Deshmukh, Advs. for the D
Respondents.
      The Judgment of the Court was delivered by
      ABHAY MANOHAR SAPRE, J. I. Leave granted.
      2. This appeal is filed against the final judgment and order dated    E
16.12.2015 passed by the High Court ofJudicature ofBombay Bench at
Aurangabad in Writ Petition No. 8951 of2015 whereby the High Court
allowed the writ petition filed by the respondents herein and made the
'Rule' absolute.
       3. The controversy involved in the appeal, which due to subsequent    F
events, remains confined to very narrow issues surviving for
consideration. However to appreciate what is survived, few relevant
facts need mention below.
      4. The appellants herein-State of Maharashtra and Joint Secretary,
Law & Judiciary Department were the respondents whereas the G
respondent Nos. I to 15 herein were the writ petitiOners before the
High Court in a writ petition out of which this appeal arises.
      5. The respondents (Total 15) are advocates by profession and
have been practicing in various Courts including Bench of the High Court
                                                                            H
1024             SUPREME COURT REPORTS                             [2017) 8 S.C.R.


 A at Aurangabad (MH). The respondents were appointed by the State
   Government as Additional Government Pleaders (Addi.GP)/Assistant
   Government Pleaders(AGP))/Additional Public Prosecutors(APP) for
   the Bench of the High Court at Aurangabad by order dated 05.10.2013
   (Annexure-P-1 ). Similar orders of appointment were issued by the State
 B on different dates in relation to some respondents.

              6. The respondents accepted their appointment and started
       functioning by discharging their duties as Addi. GP/AGP/APP in Courts
       in terms of their appointment orders. However, by order dated 28.08.2015,
       the State Government cancelled the appointments of all the respondents
.c     w.e.f28.08.2015 by taking recourse to the powers under Rule 30(5) of
       the Maharashtra Law Officers (Appointments, Conditions of Service
       and Remuneration) Rules 1984 (hereinafter referred to as "the Rules").

          7. The respondents, felt aggrieved of the order dated 28.08.2015,
   challenged its legality and correctness in the writ petition out of which
 D this appeal arises.

             8. By impugned order, the High Court allowed the respondents'
       writ petition and quashed the order of cancellation dated 28.08.2015
       which has given rise to filing of this appeal by way of special leave by
       the State of Maharashtra.
 E
             9. By interim order dated 29.01.2016, this Court stayed the
       operation of the impugned order of the High Court. As a result, the
       cancellation order dated 28.08.2015 continued to remain in operation
       against the respondents.
 F            10. It is pertinent to mention here, as stated by the learned counsel
       appearing for the parties, that during the pendency of the appeal, the
       term of the respondents on their respective posts expired on different
       dates such as, 05.06.2010, 09.06.2010, ! 6.08.20 l 0, 05.l 0.20 l 0, 09.l 0.2016
       and22.10.2016.
 G
              11. It is with this background, the question arises for consideration
       is as to what orders need to be passed while disposing of the appeal.
       One cannot dispute that even if the impugned order is upheld, the writ
       petitioners (respondents herein) would still not be entitled to continue
       any more on the post because their respective terms have come to an
 H
    THE STATE OF MAHARASHTRA & ANR. v. KISHOR M.                              1025
   GADHAVE PATIL & ORS. [ABHAY MANOHAR SAPRE, J]

end by effiux of time during the pendency of this appeal. It is also not in A
dispute that the said terms were not extended by the State and rather
curtailed before its expiry period by issuing the cancellation order which
was impugned in the writ petition. It is also not in dispute that if the
cancellation order is upheld, the question of granting any relief to
respondent~ would_not arise.
                                                                              B
      12. Heard Mr. Kuna! A. Cheema, learned Addi. Government
Pleader for the appellants and Mr. J.P. Cama, learned senior counsel
and Mr. Rahul Chitnis, learned counsel for the respondents.

        13. Learned counsel for the appellants supported the cancellation C
.order dated 28.08.2015 and contended that keeping in view the law laid
 down by this Court on the issue in question in several cases such as
 Kumari Shrilekha Vidyarthi & Ors. Vs. State ofU.P. & Ors., (1991)
 1 SCC 212 State ofU.P. & Anr. Vs. Johri Mal, (2004) 4 SCC 714 and
 State of U.P. & Ors. Vs. Ajay Kumar Sharma & Anr., (2016) 15
 SCC 289, the High Court should not have quashed the cancellation order. D

      14. Learned counsel for the respondents, however, urged that the
cancellation order dated 28.08.2015 having been passed under Rule 30(5)
by the State, the same was rightly struck down by the High Court as
being stigmatic and punitive in nature.
                                                                               E
       15. Learned counsel in the alternative submitted that due to stay
operating against the respondents, they could not work on their respective
posts though otherwise they were ready to discharge their duties. It
was, therefore, urged that the respondents be paid their entire
remuneration till the expiry of their respective terms.                        F
      . 16. It was also his alternative submission that in any event, the
 respondents be paid their remuneration from the date of stay granted by
 this Court (29.01.2016) till the date of expiry of their respective terms.

        17. Having heard the learned counsel for the parties and on perusal G
 of the record of the case, we are inclined to dispose of the appeal as
 under.

        18. Rules 30 (5) and (6) of the Rules read as under:

                                                                               H
1026            SUPREME COURT REPORTS                          [2017] 8 S.C.R.


 A           "30. Period of Appointment.

             (5) A Law Officer shall be liable to be removed from his
             office at any time, if he is guilty of any act or conduct which,
             in the opinion of Government, in the Law and Judiciary
             Department, is incompatible with his duties as such Law
 B           Officer. The decision of Government in the Law and
             Judiciary Department in such cases shall be final.
             (6) Notwithstanding anything contained in sub-rules(2) and
             (3), but save as otherwise provided in sub-rule(5), the
             appointment of any Law Officer, which is at the pleasure of
 c           the Government may at any time, be terminated by
             Government in the Law and Judiciary Department by giving
             him one month's notice or, where any retainer is payable to
             such Law Officer, be terminated forthwith by paying him
             one month's retainer in lieu of such notice."
 D        19. Having regard to the background facts, nature of controversy,
   the subsequent events and the consequences which are likely to result
   due to subsequent events occurring in the case, we consider it just and
   proper and in the interest of justice to modify the order of cancellation
   dated 28.08.2015 by treating the same to have been passed under Rule
 E 30(6) of the Rules. In other words, the interest ofjustice would be fully
   met ifthe cancellation order dated 28.08.2015 is held to have been passed
   under to Rule 30(6).
               20. Since we have modified the order dated 28.08.2015 by treating
       it to have been passed under Rule 30(6), the State is directed to ensure
 F     compliance of Rule 30(6) and accordingly pay one month's retainer in
       lieu of notice period to each respondent as was fixed in their respective
       appointment letters.
             21. Let the amount be paid to each respondent within 3 months
       from the date of receipt of this order.
 G        22. We also observe that the State would be free to consider the
   cases of any of the respondents for their appointment on any of the post
   in future, in case, if the State so desires and while so considering, the
   cancellation order dated 28.08.2015 originally-_passed by the State and
   now modified by this Court including any observations made by the High
 H Court would not come in their way.
   THE STATE OF MAHARASHTRA & ANR. v. KISHOR M.                              1027
  GADHAVE PATIL & ORS. [ABHAY MANOHAR SAPRE, J]

       23. With these observations and the directions, this appeal stands A
finally disposed ofleaving the question oflaw raised by the parties in the
appeal open.

Ankit Gyan                                             Appeal disposed of.