Public Interest Litigation No. 45 of 2013

6th August, 2013

Petitioner Counsel: Shri MAHADEO RAMKISHAN ANDHALE
Respondent Counsel: Shri. S.V. KURUNDKAR

Cases Cited:
Shantinath S. Patil Vs. State of Maharashtra, 2010 ALL MR (Cri) 2993 [Para 3]
Govindrao Namdeorao Shirsath Vs. The State of Maharashtra and others, 2001(3) Bom.C.R. 543 [Para 3,5]
State of U.P. and another Vs. Johri Mal, (2004)4 SCC 714 [Para 9]
Kumari Shrilekha Vidyarthi etc Vs. State of U.P. and others, AIR 1991 SC 537 [Para 9]
Jayant Shivajirao Jagdale Vs. State of Maharashtra and others, 2010(2) ALL MR 208=2010(3) Bom.C.R. 210 [Para 9]

JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith. By consent heard finally.

2. The Party-in-person Shri Mahadeo Ramkishan Andhale, is a Practicing Lawyer in the High Court. The grievance of the petitioner is that while making appointments of Law Officers in the office of Government Pleader, High Court, Aurangabad, the Government of Maharashtra failed to consider reasonable representation from Lawyers belonging to Scheduled Castes, Scheduled Tribes and Other Backward Categories. It was submitted that eligible candidates are available belonging to these classes for consideration of the Government for making appointments in the office of Government Pleader as Government Pleader, Additional Government Pleader and Assistant Government Pleader/Additional Public Prosecutor. In the submission of Shri Andhale, in the year 2009 one Advocate belonging to Scheduled Caste was appointed as Assistant Government Pleader in the office of Government Pleader, High Court Bench at Aurangabad. In the present set up, none of the Law Officers are appointed in the Government Pleader's office belonging to Scheduled Castes or Scheduled Tribe. Shri Andhale made reference to Maharashtra State Public Service (Reservation from Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward classes) Act, 2001. It was submitted that as the Government failed to consider Advocates belonging to Scheduled Castes, Scheduled Tribes and Other Backward classes for providing adequate representation in the Government Pleader's Office, there is resentment in the minds of the eligible candidates as they feel deprived of getting opportunity which could have been made available to them. Shri Andhale referred to judgment in the case of "Shantinath S. Patil V/s State of Maharashtra" reported in 2010 ALL MR (Cri) 2993.

3. By an order dated 6th May, 2013 by framing three issues, notices were issued to Respondent Nos. 1 and 2. After obtaining few adjournments, the Respondent Nos. 1 and 2 filed affidavit in reply to the Petition, which was drafted on 3rd August, 2013 through Shri.V.L. Achliya, Principal Secretary and Remembrancer of Legal Affairs, Law and Judiciary Department, Mantralaya, Mumbai. The deponent contends that the policy of reservation does not apply to the appointments of Law Officers. The said posts are tenure posts and appointments on these posts are made for specified period only. Reliance is placed on a reported judgment in "Govindrao Namdeorao Shirsath V/s The State of Maharashtra and others" (2001(3) Bom.C.R. 543). The deponent further contends that such posts cannot be equated with Civil Posts. It is the stand of the State that as these posts are not Civil Posts, hence there is no Constitutional obligation to provide reservation. The appointments of the persons on these posts are like a professional engagement, termination of which is "at will" by either side.

4. In respect of delay, which has occurred in processing the applications invited for the appointments as Law Officers, the deponent further averred that as many as 254 applications were received. The department has to deal with such appointments all over the Maharashtra. The process of screening and placing it before the High Power Committee is a cumbersome process and it took time to make its recommendations to the Government. The deponent further contends that the recommendation made by the High Power Committee are already placed for consideration of the Government. All efforts would be taken to make appointments pursuant to Notification dated 20.06.2012 at the earliest, according to the deponent. It is further contended that the Government has issued orders dated 31.07.2013 granting continuation to the existing Law Officers until further orders or till appointments pursuant to the notification dated 20.06.2012 are made in order to avoid inconvenience.

5. Learned Government Pleader, Shri. Kurundkar submits that the plea raised by Shri. Andhale for providing reservation in appointing Law Officers in the office of Government Pleader, is legally not valid and reasonable. Reliance is placed on judgment in "Govindrao Namdeorao Shirsat V/s State of Maharashtra and others" {2001(3) Bom.C.R. 543}. In respect of the other issues, the learned Government Pleader submitted that though on 7-8 occasions extensions were granted to the Assistant Government Pleaders working in the office of Government Pleader, High Court Bench at Aurangabad, the State Government would finalize the applications or would issue appointment orders at the earliest. The learned Government Pleader preferred not to make any statement in respect of any outer limit or time schedule for the Government to issue appointment orders.

6. We have considered the plea of petitioner i.e. party-in-person Shri. Andhale. It is settled position that the Law Officers working in the Government Pleader's office discharge public functions and presence of public element is attached to their office and the posts which they hold. The applications for appointing Law Officers in the office of Government Pleader were invited pursuant to the Notification dated 20.06.2012 and in spite of more than a year, the Government was not in a position to issue appointment orders. The Government was entitled to issue the extension orders to the Law Officers in the office of Government Pleader and accordingly existing Law Officers' term was extended number of times.

7. Considering responsible duties, obligations and functions which are discharged by the Law Officers, it is essential that their term of appointments period / tenure must be made clear to them. Granting of extensions for few months intermittently for a long period of one year would certainly not do justice to the office of Government Pleader, High Court Bench at Aurangabad. We make it clear that it is for the State Government to choose and select its Law Officers and issue appointment orders accordingly. As long as the Law Officers enjoy the confidence of the State Government, they could be continued as Law Officers. As mentioned, the Principal Secretary in the affidavit in reply has averred that appointments of the persons on these posts can be terminated at will by either side.

8. In view of the above, we are of the view that the first submission of the party-in-person seeking directions to the State to apply reservation policy while appointing Law Officer in the office of Government Pleader is not legally sustainable.

9. During the course of hearing it was informed that appointment of Law Officers in the Government Pleader's Office at Principal Seat of Bombay High Court, and at Nagpur Bench of High Court have already been made. We do not find any convincing reason as to why the State Government has not finalized the appointment orders in respect of Government Pleader's office at Aurangabad Bench of High Court. Considering the responsible duties which are to be discharged by the Law Officers in the High Court, it would be unreasonable not to finalize the appointment orders for a period of one year. The delay occurring in issuing final appointment orders to the Law Officers may unnecessarily raise issues concerning fairness and transparency in the decision making process. The Law Officers represent State in large number of matters of vital importance contested in High Court. Their valuable assistance contributes in effective dispensation of justice. The office in which the Law Officers are appointed and post which is held by them involves public element in it. Public perception in the working of the office of Government Pleader deserves to be taken into consideration by the State Government. We may refer to the case of State of U.P. and another V/s Johri Mal {(2004)4 S.C.C. 714}, Kumari Shrilekha Vidyarthi etc V/s State of U.P. and others (AIR 1991 SC 537) and Jayant Shivajirao Jagdale V/s State of Maharashtra and others (2010(3) Bom.C.R. 210) : [2010(2) ALL MR 208].

10. In respect of the issue concerning the statement made by the deponent that the appointments of Law Officers would be made at the earliest, we are of the view that the State Government shall issue appointment orders within specified time. Considering the over all facts and circumstances, the plea raised in the affidavit in reply filed, we direct the State Government to issue appointment orders as Law Officers in the office of Government Pleader attached to High Court Bench at Aurangabad pursuant to the Notification dated 20.06.2012, within six weeks from today.

11. Rule made absolute in the above terms.

12. Parties to act authenticated copy of the Judgment.

Ordered accordingly.