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2013 Supreme(Bom) 1493
In the High Court of Bombay at Aurangabad
NARESH H. PATIL & A.I.S. CHEEMA, JJ.
Mahadeo S/o Ramkishan Andhale
Versus
The State of Maharashtra Through The Chief Secretary & Others
Public Interest Litigation No. 45 of 2013
Decided On : 06-08-2013
Advocate Appeared:
For the Petitioner: Party in person.
For the Respondents: S.V. Kurundkar, Government Pleader.
Headnote:Constitution of India - Article 16 - Maharashtra State Public Service Reservation for SC, ST Denotified Tribes (Vimukta Jatis) Nomadic Tribes Special Backwards Categories and Other Backwards Classes Act, 2001 - Reservation in Service. - Since posts of Law Officers in office of Govt. Pleader are tenure posts hence Reservation Policy not attracted to said posts. - 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. 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.
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.
Constitution of India - Article 226 - Delay in issuing appointment orders. - Where there was unnecessary delay in issuing final appointment orders, appointing Law Officers in office of Government Pleader therefore State Govt. directed to issue appointment orders within 6 weeks. - 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. Court did 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.
In respect of the issue concerning the statement made by the deponent that the appointments of Law Officers would be made at the earliest, Court is 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, Court 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 20.6.2012, within six weeks from date of order.
1. 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 M.R. (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 3 rd 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 r
