Back
1996 Supreme(Bom) 427
IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
B.N. Deshmukh V.K. Barde, JJ.
The State of Maharashtra ..... Appellant.
Versus
Durga s/o. Appa Pawar ...... Respondent.
First Appeal No. 468 of 1996 with Civil Application No. 3561 of 1996, decided on 2-8-1996.
Advocates appeared :
M.S. Phatak, for appellant.
Headnote:Civil Procedure Code, 1908
Section 2(7)-See Maharashtra Law Officer. (Appointment, Conditions of Service and Remuneration) Rules, 1984, Rules 14(3). 14(9) and 15.
Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984
1486 -Rules 14(3). 14(9) and 15CPC, Section 2(7)-Allotment of work to A panel counsel by Government pleader or Advocate General under Articles 226 or 227 of Constitution of India-Filing of application, petitioner or means by Government Pleader in Section 2(7) of CPC-Importance of matter differentiate the category of counsel like A penal or B penal by Advocate General-They appear after Initiation of proceedings, Any proceeding to be initiated in the High Court is to be initiated from the office of the Government Pleader and it is for the Advocate General and/or for the Government Pleaders at Nagpur or Aurangabad as the case may be to allot work to A Panel Counsel. But the initial filing of the memos appeals applications or petitions under Articles 226 and 227 of the Constitution for and on behalf of the Government, has to be done by the Government Pleader and other officers included in the definition of the Government Pleader in Section 2(7) of the Civil Procedure Code. The power is vested with the Advocate General and/or within the respective Government Pleaders to engage A Panel Counsel whenever they found it necessary having regard to the importance of the matter. The selection of the A Panel Counsel is, therefore, left with the discretion of the Advocate General and/ or with the respective Government Pleaders. Having regard to the duties, it is apparent that the question of appearance of A Panel Counselor B Panel Counsel comes in after the proceedings are initiated or filed in the Court. Thereafter only, it is for the Advocate General or the respective Government Pleaders to consider on the basis of merits of the matter, whether they would require assistance of the A Panel or B Panel Counsel A Panel Counsel or B Panel Counsel are appointed qua the matters, But the concerned Government Pleader is answerabk to all the matters of the Government filed at the High Court level.
An appeal on behalf of the State Government through the Executive Engineer, Irrigation Department was med by A Panel Counsel appointed by the Government of Maharashtra. The said appeal was filed on the basis of letter dated 20.6.1996 issued by the In-charge Superintendent (Legal), Government of Maharashtra. Law and Judiciary Department, Aurangabad, in which it was stated that as the Government had decided to entrust the matter to a A Panel Counsel the said Counsel was requested to file the appeal in the High Court. On the question whether the filing of the appeal by the A Panel Counsel was in accordance with the provisions of the Maharashtra Law Officers (Appointment. Conditions of Service and Remuneration) Rules, 1984 and the Rules for Conduct of the Legal Affairs of Government, 1984.
Held, that the appeal med by the A Panel Counsel was not proper and could not be accepted as an appeal filed by the State of Maharashtra or any authority of the State Government Appeal allowed to be withdrawn with liberty to file fresh appeal as per the procedure prescribed.
2.The matter relates to the award of arbitration under section 15 of the Arbitration Act.
3.Shri Phatak had produced before us, a letter addressed to him, signed by incharge Superintendent (Legal) to the Government of Maharashtra, Law Judiciary Department, Aurangabad, dated 20th June 1996, by which Shri Phatak was informed that the Government has decided to file an appeal in above referred Regular Civil Suit No. 223/1996 decided by the Civil Judge (S.D.), Parbhani, on 30th April 1996. In the said letter, it is also mentioned that the Government has also decided to entrust the matter to him as 'A' Panel Counsel. He was, therefore, requested to file Civil Appeal in the High Court at Aurangabad.
4.When the matter had come up on board for admission, we find that the filing of the appeal by the Counsel appointed on 'A' Panel, by the Government of Maharashtra, is not in accordance with the provisions of the Maharashtra Law Officers (Appointment, Conditions of Service Remuneration) Rules, 1984, and the Rules for the Conduct of the Legal Affairs of Government, 1984.
5.Shri Phatak contended that he has acted pursuant to the letter dated 20th June 1996 and filed the appeal. According to him, he has not transgressed the limits provided in the communication dated 20th June 1996.
6.Our attention is invited to the various provisions in this connection. The matter is of great importance as it relates to the organisation of the Government Pleader's office and the overall control over the Government matters in the High Court.
7.It is worthwhile to refer to certain important provisions in this regard.
8.In sub-section (7) of section 2 of the Code of Civil Procedure, 1908, the Government Pleader is defined as follows :
" "Government Pleader" includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader."
9.There is reference to the Government Pleader in Order XXVII, Rule 8-B of the Code of Civil Procedure, 1908, wherein the definitions of the Government and Government Pleader are reiterated. For the purposes of Order XXVII, Rule 8-B the Government Pleader means in relation to any suit by or against a State Government or against a public officer in the service of a State, the State Government and the Government Pleader as defined in Clause (7) of section 2, or such other Pleader as the State Government may appoint, whether generally or specially, for the purposes of this Order.
10.There are rules framed for the appointment, conditions of service, remuneration, etc. for this purpose. The Maharashtra Law Officers Rules, 1984, and the Rules for the Conduct of the Legal Affairs of Government, 1984, are framed for this purpose, prescribing the manner, method and procedure of presenting and conducting the appeals in the High Court.
11.The Government Pleader is defined in Rule 2(j) of the Maharashtra Law Officers (Appointment, Conditions of Services and Remuneration) Rules, 1984, as follows :
" "Government Pleader" means an advocate to that post under these rules by Government in the Law Judiciary Department,---
(i) in relation to the High Court at Bombay,.......
(ii) in relation to the High Court at Nagpur and Aurangabad, to conduct civil cases, appeals, applications, references and petitions including petitions for exercise of powers under Articles 226 and 227 of the Constitution for and on behalf of the State or
