O.B.C. Advocates Welfare ... vs The State Of Madhya Pradesh
2022 Latest Caselaw 6452 MP

                       IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                            BEFORE : HON'BLE SHRI JUSTICE VIVEK AGARWAL


                                       ORDER RESERVED ON : 06/4/2022
                                   ORDER PRONOUNCED ON : 29/04/2022



                                   WRIT PETITION No. 19492 of 2020
                           Between:-
                           O.B.C. ADVOCATES WELFARE ASSOCIATION
                           Through SECRETARY RAMBHAJAN LODHI
                           ADVOCATE HOUSE NO.1432, STREET NO.4,
                           BAI KA BAGICHA, GHAMAPUR,
                           JABALPUR (MADHYA PRADESH)
                                                                  .....PETITIONER
                           (BY SHRI RAMESHWAR SINGH THAKUR, SHRI VINAYAK
                           PRASAD SHAH, SHRI UDAY KUMAR, SHRI PRASHANT
                           CHOURASIYA, SHRI GOPAL SHRIVAS, SHRI PARMANAND
                           SAHU, SHRI ASHOK CHOURASIYA, MS ANJANI KORI, SHRI
                           OM PRAKASH PATEL, SHRI TRILOKI SONKAR, SHRI LALJI
                           KUSHWAHA, SHRI ROOM SINGH MARAVI, ADVOCATES, )

                           AND
                           THE STATE OF MADHYA PRADESH
                           THROUGH SECRETARY LAW AND LEGISLATIVE AFFAIRS
                      1.
                           DEPARTMENT MANTRALYA VALLABH BHAWAN BHOPAL
                           (M.P.) (MADHYA PRADESH)
                           PRINCIPAL/UNDER SECRETARY
                      2.   GENERAL ADMINISTRATION DEPARTMENT VALLABH
                           BHAWAN BHOPAL (M.P.) (MADHYA PRADESH)
                           PRINCIPAL SECRETARY
                           SOCIAL WELFARE DEPARTMENT MINISTRY OF SOCIAL
                      3.
                           JUSTICE AND WELFARE MANTRALAYA VALLABH BHAWAN
                           BHOPAL (M.P.) (MADHYA PRADESH)
                           PRINCIPAL SECRETARY B.O.C AND MINORITY WELFARE
                      4.
                           DEPTT. VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
                           PRINCIPAL SECRETARY
                      5.   SC AND ST WELFARE DEPARTMENT MANTRALAYA,
                           VALLABH BHAWAN, BHOPAL M.P. (MADHYA PRADESH)
                           ADVOCATE GENERAL OFFICE
                      6.
                           HIGH COURT CAMPUS JABALPUR (MADHYA PRADESH)
                                                               .....RESPONDENTS
                           (BY SHRI SHIV KUMAR SHRIVASTAVA, GA FOR STATE)




                       This writ petition has come up for hearing and the Court

                                          has passed following:

Signature
 SAN      Not
Verified

Digitally signed by
TARUN KUMAR
SALUNKE
Date: 2022.04.29
18:17:29 IST
                                  2



                           ORDER

This writ petition is filed by the O.B.C Advocates

Welfare Association challenging the legality and validity of

order dated 07/11/2020 (Annexure P-1) passed by the

Government of M.P, Law & Legislative Affairs Department,

deciding petitioner's representation in compliance of the

direction contained in order of the High Court dated

04/09/2020 passed in W.P No. 7660/2020.

2. Petitioner's contention is that earlier they had

filed W.P No. 7660/2020 claiming a direction to provide

representation/reservation to the members of the backward

class while appointing government advocates for Supreme

Court/High Court/District Court/Special Courts etc.

3. The High court in W.P No.7660/2020 passed order

dated 04/09/2020 and had directed the O.B.C Advocates

Welfare Association to submit their representation to the State

Government and the Advocate General of the State and in turn

directed the authorities to decide the same within a period of

3 months.

4. It is submitted that vide impugned order dated

07/11/2020, their representation is rejected informing them

that the post of Government Advocate is not a public

employment, therefore the provisions of the M.P Lok Seva

(Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade

Vargon Ke Liye Arakshan) Adhiniyam, 1994 (hereinafter in

short referred as Adhiniyam of 1994) are not applicable. It is

also informed to the representatives of the petitioner that

Order No.74Q/21-Ba(do) dated 21/03/2007 and order

No.634/21-Ba(do) 07/1071 dated 05/03/2007 are not in regard

to the reservation but in regard to the preference.

5. Learned counsel for the petitioner submits that

Annexure P-1, is ultra virus to sections 2(b), 2(f) as well as

section 4 of Adhiniyam of 1994.

6. It is submitted that Clause (f) of Section 2 of

Adhiniyam of 1994, defines "Public Services and Posts" means

the services and posts in any office of the establishment.

7. "Establishment" is defined in Clause (b) of Section

2 of Adhiniyam of 1994, means "any office of the State

Government or of a local authority or statutory authority

constituted under any Act of the State for the time being in

force, or a University or a company, corporation or a co-

operative society in which not less than fifty-one percent of the

paid up share capital is held by the State Government or the

institutions receiving grant-in-aid or any cash grant from the

State Government and includes a work charge or contingency

paid establishment and such establishments in which casual

appointments are made but does not include the

establishments covered under Article 30 of the Constitution".

8. Reliance is placed on the judgment of the

Supreme Court in the case of Kumari Shrilekha Vidyarthi &

others Vs. State of M.P & others, 1991 (1) SCC 212 to

buttress their claim for reservation. It is submitted that

conduct of the respondents in ignoring candidates/practicing

lawyers belonging to the O.B.C/S.C/ST for the post in question

i.e. the post to be filled up in the office of Advocate General is

violation of Article 14, 16(4) and 46 of the Constitution.

9. It is submitted that in case of Minerva Mills Vs.

Union of India, (1980) 3 SCC 625, it is held that "The

significance of the perception that Parts III and IV together

constitute the core of commitment to social revolution and

they, together, are the conscience of the Constitution, is not a

hollow formality but is to be given affect. Similarly, reliance is

placed on State of Kerala Vs. N.M Thomas (1984) 4 S.C.C

251, wherein it is held that "The concept of equality of

opportunity in matters of employment is wide enough to

include within it compensatory measures to put the

members of the Scheduled Castes and Scheduled Tribes at

par with the members of other communities which would

enable them to get their share of representation in public

service.

10. It is submitted that since there is violation of the

constitutional mandate, therefore, impugned order is violative

of provisions contained in the Adhiniyam of 1994 and

consequently prayer is made to direct the respondent

authorities to implement the Adhiniyam of 1994 in letter and

spirit for appointment to the posts of Law officers in the office

of Advocate General of M.P, district courts, and tribunals.

11. Shri Shiv Kumar Shivastava, learned G.A supports

the impugned order and submits that there is no infirmity in

the impugned order calling for any indulgence.

12. After hearing learned counsel for the parties and

going through the record of the present case, firstly the

provisions of Adhiniyam of 1994 in its preamble provides that

"for the reservation of vacncies in public services and posts in

favour of the persons belonging to the Scheduled Castes,

Scheduled Tribes and other Backward Classes of citizens and

for matters connected therewith or incidental thereto."

13. Section 4(2) of Adhiniyam of 1994, reads as

under:-

"(2) Subject to other provisions of this Act there shall be reserved for the persons belonging to the Scheduled Castes, Scheduled Tribes and other Backward Classes, at the stage of direct recruitment in public services and posts."

14. Therefore the first issue is whether posts in the

office of Advocate General/district courts/special courts are

filled up through direct recruitment in which reservation

principle is to be applied. Another issue is whether there is

violation of Article 14 and 16 of the Constitution, which

respectively provides for equality before the law and equality

of opportunity in the matters of public employment.

15. Controversy which has been raised by the

petitioner has been already dealt with by various High Courts.

The High Court of Punjab & Haryana in case of C.W.P No.

19914/2011 (Tarsem Lal Advocate Vs. The Chief

Secretary to the Government of Punjab & others)

decided on 04/11/2011 was ceased of similar matter, where

practising advocates had made a plea for issuance of writ of

mandamus to the respondents and State Government of

Punjab to apply the reservation policy of the State for

Scheduled castes and Backward classes to the office of

Advocate General, Punjab and to operate the reservation

roster and the prescribe percentage on the posts of Assistant

Advocate General and Deputy Advocate General, Punjab It was

also prayed that the Punjab Scheduled Castes and Backward

Classes (Reservation in Services) Act, 2006 should be made

applicable to the office of Advocate General, Punjab.

16. In case of State of U.P Vs. U.P State Law

Officers Association (supra), the Supreme Court has held in

para 14 and 15, which reads as under:-

"14. Legal profession is essentially a service- oriented profession. The ancestor of to-day's lawyer was no more than a spokesman who rendered his services to the needy members of the society by articulating their case before the authorities that be.

The services were rendered without regard to the

remuneration received or to be received. With the growth of litigation, lawyering became a full-time occupation and most of the lawyers came to depend upon it as the sole source of livelihood. The nature of the service rendered by the lawyers was private till the government and the public bodies started engaging them to conduct cases on their behalf. The government, and the public bodies engaged the services of the lawyers purely on a contractual basis either for a specified case or for a specified or an unspecified period. Although the contract in some cases prohibited the lawyers from accepting private briefs, the nature of the contract did not alter from one of professional engagement to that of employment. The lawyer of the Government or a public body was not its employee but was professional practitioner engaged to do the specified work. This is so even to-day, though the lawyers on the full-time rolls of the government and the public bodies are described as their law officers. It is precisely for this reason that in the case of such law officers, the saving clause of Rule 49 of the Bar Council of India Rules, waives the prohibition imposed by the said rule against the acceptance by a lawyer of a full- time employment.

15. The relationship between the lawyer and his client is one of trust and confidence. The client engages a lawyer for personal reasons and is at liberty to leave

his also, for the same reasons. He is under no obligation to give reasons for withdrawing his brief from his lawyer. The lawyer in turn is not an agent of his client but his dignified, responsible spokesman. He is not bound to tell the court every fact or urge every proposition of law which his client wants him to do, however irrelevant it may be. He is essentially an advisor to his client and is rightly called a counsel in some jurisdictions. Once acquainted with the facts of the case, it is the lawyer's discretion to choose the facts and the points of law which he would advance. Being a responsible officer of the court and an important adjunct of the administration of justice, the lawyer also owes a duty to the court as well as to the opposite side. He was to be fair to ensure that justice is done. He demeans himself if he acts merely as a mouthpiece of his client. This relationship between the lawyer and the private client is equally valid between him and the public bodies."

17. Similarly in case of State of U.P Vs. Ramesh

Chandra Sharma (1995) 6 SCC 527, the Hon'ble Supreme

Court in para 5, has held that appointment of legal

practitioner is only professional engagement which reads as

under:-

"5. In view of the clear provision in clause (3) of para 7.06 that the `appointment of any legal practitioner as a District Government Counsel is only professional engagement', it is difficult to appreciate the submission for which sustenance is sought from the provisions contained in the same Manual. The appointment being for a fixed term and requiring express renewal in the manner provided in the Manual, there is no basis to contend that it is not a professional engagement of a legal practitioner but appointment to post in Government service which continue till attaining the age of superannuation. In the earlier decisions of this Court including Shrilekha Vidyarthi (supra), the appointment of District Government Counsel under the Manual has been understood only as a professional engagement of a legal practitioner.

18. The High Court of Punjab placing reliance on the

decision of the Supreme Court in case of State of U.P Vs. U.P

State Law Officers Association , (1994) 2 SCC 204 in para

14 and 15 held that the issue as was raised by practicing

Advocates is squarely covered by the decision of the Supreme

Court in State of U.P Vs. U.P State Law Officers Association

(supra) and therefore refused to show indulgence in the

matter. The Division Bench of Punjab & Haryana High Court

also held that no legal right has been demonstrated by the

petitioner which vests in him and which is enforceable or any

legal obligation on the State to appoint law officers on reserve

roster point and prescribed percentage of reservation in direct

recruitment for Group A, Group B and Group C posts

mentioned in the '2006 Act'.

19. Thus reading aforesaid judgments, it is evident

that a lawyer of the Government or a public body is not its

employee but a legal practitioner engaged to do specific work.

Similarly arguement of legal practitioner as District

government counsel is only a professional engagement where

appointment is for a fixed term requiring renewal in the

matter provided in the manual, which reads in a manner, it is

only a professional engagement of a legal person and not

appointment to a post in government service.

20. A Three Judges Bench of the Andhra Pradesh High

Court in case of S. Nagender Vs. Government of A.P

represented by its Principal Secretary, Law Department

& others, 2006 (4) ALT 66; 2006 0 Supreme Court (AP)

481, also had occassion to deal with the question in relation to

appointment of Government pleaders in Andhra Pradesh High

Court, Andhra Pradesh Administrative Tribunal etc.

21. The Andhra Pradesh High Court held that

eventually, the responsibility of the Advocate General, who is

not only the first Law Officer of the State, but also a de jury

member of the Cabinet is to choose the right counsel to

represent the Government in the courts. It is further held that

courts would normally be reluctant to interfere with the

assessment of the learned Advocate General barring an

exceptional case whether the appointment is palpably against

the public interest or malafide.

22. The question which was raised before the Andhra

Pradesh High Court was in relation to the appointment of

Government Pleader in Andhra Pradesh High Court, Andhra

Pradesh Administrative Tribunal etc.on the ground that there

is non compliance of different conditions specified by the

relevant Rules inclusive of inadequate representation to the

Scheduled Castes and Scheduled Tribes etc, despite the rule

of reservation which is expected to be followed in such

appointment.

23. Argument putforth by the learned counsel for the

petitioner therein was that notwithstanding provisions of

Articles 162 and 335 of the Constitution of India, once State

had framed the Rules the Government is bound to follow the

Rules and the stand taken by the Government that these are

only guidelines, definitely cannot be accepted since once such

Rules are framed by them, even in exercise of Artice 162 of the

Constitution of India though not under Article 309 of the

Constitution of India. It was also submitted that the office of

the Government Pleader is a public office and hence whether

it is a civil post or not would be irrelevant for the purpose of

Articles 15 and 16 of the Constitution of India and the term

'office' would be sufficient. Learned Advocate General on the

other hand, placed reliance on the case of Indra Sawhney

Vs. Union of India, AIR 1993 SC 477 and submitted that in

Indra Sawhney's case (supra) the concept of technical posts

had been discussed and the reservations to such posts had

been deprecated and if the role of lawyers is taken into

consideration these posts require specialization in the field of

law and hence these can be treated as technical posts.

24. In case of Indra Sawhney Vs. Union of India

(supra) the majority view of the Supreme Court is :-

"While on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. In such situations, it may not be advisable to provide for reservations. For example, technical posts in Research and Development Organizations/ Departments/Institutions, in specialities and super- specialities in Medicine, engineering and other such courses in Physical Sciences and Mathematics, in defence services and in the establishments connected therewith. Similarly, in the case of posts at the higher echelons e.g. Professors (in Education), Pilots in Indian Airlines and Air India, Scientists and Technicians in nuclear and space application, provision for reservation would not be advisable." We find that the post of a Law Officer is also one of such posts as considered by the Supreme Court in the said case to be inappropriate for making a provision for reservation. In the light of these facts, the provision now made in the impugned Executive Instructions for giving preferential treatment to persons belonging to B.C., S.C. or S.T. class cannot be said by the inadequate for

satisfying the requirement of Article 16(4) of the Constitution, if any. "

25. Thus the complete reading of the judgment leaves

no matter of doubt that Full Bench of Andhra Pradesh has held

that appointment of Law Officer is regulated by Executive

Instructions and the executive instructions regulating the

appointment and conditions of service of the Law Officers of

the Government of Andhra Pradesh are not statutory in their

nature. Those executive instructions were issued by the

Government to structure the discretion of those who are

involved in the process of making appointments of Law

Officers to represent the State and its instrumentalities and

other authorities in various Courts including the High Court of

Andhra Pradesh and the Andhra Pradesh Administrative

Tribunal. The Law officer so appointed in the High Court or

other judicial forum functioning under the general

superintendence and control of the Advocate-General. Those

executive instructions leaves no manner of doubt the Law

Officers are engaged to represent the State and its

instrumentalities and other authorities in the cases entrusted

to them for and on behalf of the Government and other

authorities. They are not recruited and appointed into any

service as such. The services of the Advocates are engaged

and hired by the Government for a specified period and some

cases are entrusted to them to represent the State and its

agencies in the Courts. They are not paid any salary. The

Government Pleaders appointed in the High Court of Andhra

Pradesh and the Andhra Pradesh Administrative Tribunal or in

any State level Court or Tribunal are paid a consolidated

honorarium.

26. That the Adhiniyam of 1994 under Clause 4(2)

talks of reservation in public service and posts as has been

discussed by the High Court of Andhara Pradesh (supra).

There is no recruitment and appointment of a government

advocate may be called by any nominclature into any service

but engagement, thus it is evident that since there is no direct

recruitment to the office of various categories of law officer,

provisions of Adhiniyam of 1994 providing for percentage of

reservation to posts will not be applicable to the facts of the

present case.

27. Even when tested on the touch stone of Article 14

of the Constitution, it is evident that Article 14 provides for

equality before law. It provides that State shall not deny to any

person equality before law or equal protection of law within

teritory of India. The consept of equality is a positive concept.

It is not the case of the petitioner that they being member of

the particular category have been denied consideration for

engagement as a lawyer to represent government. Thus

Article 14 of the Constitution would apply when invidious

discrimination is meted out to equals and similarly

circumstanced without any rational basis or relationship in

that behalf as has been held in case of Bondu Ramaswamy

& Ors vs Bangalore Development Authority & others,

(2010) 7 SCC 129. But in the present case, it is not the case

of the petitioner's that there is any invidious discrimination

and none of the persons belonging to the under previlaged

sections have been given representation dehors their merit.

28. Article 16 of the Constitution talks of equality of

opportunity in matters of public employment. Article 16 (4) of

Constitution provides that State shall not be prevented from

making any provision for reservation of appointments or posts

in favour of any backward class of citizens. In the present

case, no provision has been made for reservation while

engaging services of a counsel by the State.

29. In a case of relationship between a doctor and

patient or a client and lawyer, neither the patient nor the

client can be forced to visit a particular doctor or a lawyer and

the service, which is rendered is personally professional and

the relationship is of utmost trust and faith therefore, neither

a patient nor a client can be forced to see a particular doctor

or lawyer. There cannot be any reservation in the matter of

such contractual engagement, where appointments are not

made but services are hired on certain remuneration.

30. The Punjab & Haryana High Court in case of

Tarsem Lal Advocate Vs. The Chief Secretary to the

Government of Punjab & others (supra) has held that "it is

well settled that no mandamus can be issued by the writ court

to the State to grant or create reservation. Article 16(4-A) is

an enabling provision which leaves the State free to grant

reservation according to its wisdom. Adequacy or inadequacy

of reservation and reservation to be consistent with efficiency

of administration are matters for the Government to consider

and decide. The Court cannot compel the State to create

reservation in the office of Advocate General, and to make

appointments following the rule of reservation and roster. A

client cannot be forced to engage a particular counsel. It is the

free choice of a litigant as to who should represent him in a

court of law. The Government before the court is itself a

litigant and client of law officers appointed by it. Choice of

counsel is a matter of personal faith, trust and belief. No

counsel can be thrust on an unwilling client. The petitioner's

right to practice the profession of law is not affected by State

not applying rule of reservation and roster in the office of the

Advocate General..............We feel strongly that reservation of

any kind in such office is insupportable on logic and

experience. "

31. Similar view has been taken by a Full Bench of

Andhra Pradesh High court in case of S. Nagender Vs.

Government of A.P represented by its Principal

Secretary, Law Department & others (supra), where it is

held that the services of the Advocates are engaged and hired

by the government for a specified period and some cases are

entrusted to them to represent the State and its agencies in

the courts. They are not paid any salary. The Law Officers of

the State are engaged to represent the State and its

instrumentalities and other authorities in the cases entrusted

to them for and on behalf of the Government and other

authorities. They are not recruited and appointed into any

service as such.

32. Law laid down by the Supreme Court in Kumari

Shrilekha Vidyarthi & others Vs. State of M.P & others

(supra) is not applicable to the facts of the present case. This

judgement is on the aspect of non-approval of arbitrary action

of removal even in the matter of contractual engagement.

Thus ratio of this decision will not benefit the petitioners.

33. In case of Kalyan Singh Vs. State of U.P, 1962

AIR SC 1183, it is held that a mandamus is available against

any public authority including administrative and local bodies,

and it would lie to any person, who is under a duty imposed by

a statue or by a common law to do a particular act. In order to

obtain a writ or order in the nature of mandamus, the

applicant has to satisfy that he has legal right to the

performance of a legal duty by the party against whom the

mandamus is sought and such right must be subsisting on the

date of the petition. The duty that may be enjoined by the

mandamus must be one imposed by the constitution, a statue,

common law or by rule or order having force of law.

34. Thus taking into consideration limitations and

also a fact that Article 16(4) of the Constitution of India, as

held by the Andhra Pradesh High Court is an enabling

provision and it is for the concerned government to take a

policy decision in relation thereto. There is no constitutional

imperative in relation to strict enforcement of the reservation

in the appointments of Government Pleaders of the High

Court, etc.

35. Thus, this Court is of the opinion that provisions

of Adhiniyam of 1994 will not be applicable because it only

provides for reservation of vacancies in public services and

posts and not in the matter of engagement of a counsel, which

is purely a contractual and individualistic relationship. There

is no violation of the provisions of the Act of 1994 or of Article

14 and 16 of the Constitution.

36. Thus, to conclude and keeping in mind aforesaid

judgements, I am of the opinion that engagement of a lawyer

by the State and its intrumentalities, is not a recruitment or

appointment into any service or any post but an engagement

for a specified period for some specified cases to represent the

State and its instrumentalities in the court cannot attract and

should not attract provisions of reservation, keeping in mind

the law laid down in case of Indra Sawhney Vs. Union of India

(supra). Therefore, petition fails and is dismissed.

(VIVEK AGARWAL) JUDGE tarun