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2020 Supreme(MP) 914
MADHYA PRADESH HIGH COURT (INDORE BENCH)
Vandana Kasrekar, J.
Pawan Kumar Joshi - Appellant
Versus
State Of Madhya Pradesh & Ors. - Respondent
Writ Petition No. 5376 of 2019
Decided On : 07-01-2020
Shri Praveen Kumar Pal, for the Appellant; Shri R.S. Chhabra, Additional Advocate General with Shri Mudit Maheshwari, Learned Panel Lawyer, Shri Amit Bhatia, Shri G.P. Singh, Shri Aniket Naik, Shri Pratyush Mishra, Shri Vibhor Khandelwal, for the Respondent
The appointment of a Government Advocate is purely a professional engagement and the petitioner has no legally enforceable right to claim the appointment as a matter of right.
Headnote:
Appointment - Government Advocate - Section 24(7) of Cr.P.C - [Appointment, Government Advocate, Section 24(7) of Cr.P.C] - The court dismissed the petition challenging the appointment of Law Officers, stating that the appointment of a Government Advocate is purely a professional engagement and the petitioner has no legally enforceable right to claim the appointment as a matter of right. The State Government is acting as a client and engages its own counsel to defend the interest of the Government. The Law Officers are engaged on an adhoc basis and their performances are reviewed by the Advocate General and Additional Advocate Generals. The court held that the guidelines issued by the State Government regarding the appointment of Law Officer are neither merely an executive instruction nor a statutory rule and cannot be interfered with unless arbitrary, mala fide, or in violation of any statutory provision.
Fact of the Case:
The petitioner challenged the appointment of Law Officers by the State Government, claiming that the appointees did not fulfill the eligibility criteria of having 10 years of professional practice before the High Court and did not appear in a minimum of 20 cases before the Court in the last three years. The State Government argued that the appointment of Law Officers is purely a professional engagement and the petitioner has no legally enforceable right to claim the appointment as a matter of right.
Finding of the Court:
The court found that the appointment of a Government Advocate is purely a professional engagement and the petitioner has no legally enforceable right to claim the appointment as a matter of right. The State Government is acting as a client and engages its own counsel to defend the interest of the Government. The Law Officers are engaged on an adhoc basis and their performances are reviewed by the Advocate General and Additional Advocate Generals.
Issues: The issues revolved around the eligibility criteria for the appointment of Law Officers and whether the petitioner had a legally enforceable right to claim the appointment as a matter of right.
Ratio Decidendi: The court held that the appointment of a Government Advocate is purely a professional engagement and the petitioner has no legally enforceable right to claim the appointment as a matter of right. The State Government is acting as a client and engages its own counsel to defend the interest of the Government. The Law Officers are engaged on an adhoc basis and their performances are reviewed by the Advocate General and Additional Advocate Generals. The court also emphasized that the guidelines issued by the State Government regarding the appointment of Law Officer are neither merely an executive instruction nor a statutory rule and cannot be interfered with unless arbitrary, mala fide, or in violation of any statutory provision.
Final Decision: The court dismissed the petition challenging the appointment of Law Officers, stating that the appointment of a Government Advocate is purely a professional engagement and the petitioner has no legally enforceable right to claim the appointment as a matter of right. The State Government is acting as a client and engages its own counsel to defend the interest of the Government. The Law Officers are engaged on an adhoc basis and their performances are reviewed by the Advocate General and Additional Advocate Generals. The court held that the guidelines issued by the State Government regarding the appointment of Law Officer are neither merely an executive instruction nor a statutory rule and cannot be interfered with unless arbitrary, mala fide, or in violation of any statutory provision.
ORDER
1. The petitioner has filed the present petition under Article 226 of the Constitution of India, challenging the order dated 31.1.2019 (Annexure P/6) passed by the respondent No.2, thereby appointing the respondents Nos.3 to 7 on the post of Government Advocate and Dy. Government Advocate in the Office of Advocate General.
2. The petitioner is an Advocate under the definition of the Advocates Act and member of the High Court Bar Association and also a regular practitioner being an Advocate before the High Court of M.P. Bench at Indore since 2002 i.e. almost for last more than 16 years and recently last three years the petitioner has appeared in more than 100 cases as an Advocate. When the petitioner came to know that the applications were invited from the office of the Additional Advocate General, Indore for appointment of Law Officer for the State of M.P. to appear before the High Court, as per rules in a form Annexure A/1. The said application form also contained rules and principles containing eligibility/procedure for the appointment of Law Officer. As per the said rules/principles, for appointment to the post of Additional/Deputy Advocate General/Government Advocate/Deputy Government Advocate one must have a minimum experience of 10 years or more practicing as an Advocate before the High Court at respective Benches and second condition as per clause 10 of Annexure A/1, that he has to submit minimum list of 20 cases with evidence in which the candidate has appeared in the last three years. These are the two eligibility criteria/requirement for the appointment on the post of Law Officer. As the petitioner, who has fulfilled the above criteria has submitted his application as per rules in the given format in Annexure A/1 along with all supporting documents before the Additional Advocate General Office, Indore. As per the Rules No.3, the respondent Nos. 1 and 2 for the appointment of the Law Officer have to see the experience of the person being a practitioner for the High Court Advocate, work experience and eligibility and goodwill. Contrary to this Rule, the respondent No.2 has issued the order dated 31.1.2019 appointing the Law Officer for the Advocate General Office Jabalpur, Indore and Gwalior. However, name of the petitioner does not find in the said appointment order and contrary to the rule, the respondent Nos. 3 to 7 have appointed as Law Officers. It has further been submitted that the respondent Nos. 3 to 7, who have been appointed as Law Officers are not eligible for appointment of the said post because they did not fulfill the criteria as prescribed under the rules. These respondents No. 3 to 7 did not have requisite experience of 10 years for appointment on the said post and also the respondent No.7 does not have 20 cases in the last three years. Therefore, the respondents are ineligible for the post on which they have appointed. Being aggrieved with the said order, the petitioner has filed the present petition.
3. Learned counsel for the petitioner has submitted that the impugned order has been passed without any application of mind or without considering the eligibility of the candidate. That, the State Government has issued a Circular dated 28.2.2013 which contains the eligibility qualification of the person to be appointed on the post of Additional/Deputy Advocate General/Government Advocate/Deputy Government Advocate must have a minimum experience of 10 years or more practicing as an Advocate before the High Court and they should have appeared in minimum 20 cases in last three years. He submitted that none of the private respondents i.e. respondent Nos. 3 to 7 has fulfilled the criteria. Therefore, the appointment order of the respondent Nos. 3 to 7 deserves to be quashed.
4. The respondent Nos. 1 and 2 have filed their reply and in the reply, they have stated that the appointment of the Law Officers by the State Government is purely a professional engagement. The holder of the post of the Law Officer
