Madhya Pradesh High Court
The State Of Madhya Pradesh vs Ashok Kumar Padeyar on 20 May, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
WRIT APPEAL No. 628 of 2025
THE STATE OF MADHYA PRADESH AND OTHERS
Versus
KAILASH HANS
Appearance:
Shri Piyush Mathur - Senior Advocate appeared as Amicus Curiae.
Shri Suyash Prapanna - Advocate for the appellants.
Shri Vishwajit Joshi - Additional Advocate General for the State.
WITH
WRIT APPEAL No. 612 of 2025
THE STATE OF MADHYA PRADESH AND OTHERS
Versus
ASHOK KUMAR PADEYAR
Appearance:
Shri Piyush Mathur - Senior Advocate appeared as Amicus Curiae.
Shri Suyash Prapanna - Advocate for the appellants.
Shri Vishwajit Joshi - Additional Advocate General for the State.
WRIT APPEAL No. 629 of 2025
THE STATE OF MADHYA PRADESH AND OTHERS
Versus
JAGDISH LOT
Appearance:
Shri Piyush Mathur - Senior Advocate appeared as Amicus Curiae.
Shri Suyash Prapanna - Advocate for the appellants.
Shri Vishwajit Joshi - Additional Advocate General for the State.
WRIT APPEAL No. 630 of 2025
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 20-05-2025
19:15:36
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THE STATE OF MADHYA PRADESH AND OTHERS
Versus
BAPULAL LOT
Appearance:
Shri Piyush Mathur - Senior Advocate appeared as Amicus Curiae.
Shri Suyash Prapanna - Advocate for the appellants.
Shri Vishwajit Joshi - Additional Advocate General for the State.
WRIT APPEAL No. 631 of 2025
THE STATE OF MADHYA PRADESH AND OTHERS
Versus
RAM CHANDRA LOT
Appearance:
Shri Piyush Mathur - Senior Advocate appeared as Amicus Curiae.
Shri Suyash Prapanna - Advocate for the appellants.
Shri Vishwajit Joshi - Additional Advocate General for the State.
WRIT APPEAL No. 632 of 2025
THE STATE OF MADHYA PRADESH AND OTHERS
Versus
RAMSWARUP PANWAR
Appearance:
Shri Piyush Mathur - Senior Advocate appeared as Amicus Curiae.
Shri Suyash Prapanna - Advocate for the appellants.
Shri Vishwajit Joshi - Additional Advocate General for the State.
WRIT APPEAL No. 633 of 2025
THE STATE OF MADHYA PRADESH AND OTHERS
Versus
PRAKASH KALOSIYA
Appearance:
Shri Piyush Mathur - Senior Advocate appeared as Amicus Curiae.
Shri Suyash Prapanna - Advocate for the appellants.
Shri Vishwajit Joshi - Additional Advocate General for the State.
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 20-05-2025
19:15:36
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WRIT APPEAL No. 634 of 2025
THE STATE OF MADHYA PRADESH AND OTHERS
Versus
MUKESH KANDARE
Appearance:
Shri Piyush Mathur - Senior Advocate appeared as Amicus Curiae.
Shri Suyash Prapanna - Advocate for the appellants.
Shri Vishwajit Joshi - Additional Advocate General for the State.
WRIT APPEAL No. 635 of 2025
THE STATE OF MADHYA PRADESH AND OTHERS
Versus
SANJAY CHANAL
Appearance:
Shri Piyush Mathur - Senior Advocate appeared as Amicus Curiae.
Shri Suyash Prapanna - Advocate for the appellants.
Shri Vishwajit Joshi - Additional Advocate General for the State.
Reserved on : 07.05.2025
Delivered on : 20.05.2025.
ORDER
Per: Justice Vivek Rusia
Regard being had to the similitude of the controversy involved
in the aforesaid appeals, they have been heard analogously and disposed
of by this common order.
02. State of Madhya Pradesh through Principal Secretary,
Commissioner and Joint Director of Public Health & Family Welfare
Department and Chief Medical & Health Officer, Mandsaur have filed
these writ appeals by engaging counsel privately bypassing the office of
Advocate General of the State of M.P., to challenge the order passed by
Writ Court in Writ Petition No.16057 of 2020 (Kailash Hans v/s State
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of Madhya Pradesh and others) decided on 13.12.2023, whereby the
CMO, Mandsaur has been directed to consider the representation of the
petitioner and pass the order for grant of benefit after completion of 10
years of service from the date of initial appointment.
03. On 15.04.2025 these writ appeals came up for admission and
the Bench made a query that "the State of M.P. or its department could
file a writ appeal before High Court by engaging a private counsel".
We directed Shri Vishwajit Joshi, Additional Advocate General,
to look into the matter and also appointed Shri Piyush Mathur, learned
senior counsel, as amicus curiae to assist this Court.
04. Shri Piyush Mathur, learned senior counsel submits that Article
166(3) of the Constitution of India authorizes the Government to make a
rule for more convenient transaction of the business of the Government
of the State and for the allocation amongst the Minister of the said
business in exercise of power conferred under Article 166(2) & (3) of
the Constitution of India. The Government of M.P. published the
business (Allocation) Rules and amended them from time to time. As
per Rule 2, the business of the Government will be transacted through
various departments in which 'Law and Legislative Affairs' is at serial
No.XXI. As per Rule 3, the business of the Government shall be
classified and distributed between the Secretariat Department in the
manner specified in the schedule appended to these rules.
05. It is further submitted that in the Law and Legislative
Department, there are three wings, namely, Part A - Legal Advising
Wing, Part B - Litigation Wing and Part C - Legislative Wing. Clause
11 and Part A deals with the authorization of officers to execute
contracts and assurance of property on behalf of the Governor and
authorization of officers to sign, verify plaints or written statements in
suits by or against the State Government. Part B deals with the
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Government litigations, Advocate General, Government pleaders and
Public Prosecutors. According to Mr. Mathur, learned senior counsel, as
per the Business (Allocation) Rules, every litigation on behalf of or
against the Government shall be through the officer authorized on an
authorization by the Advocate General and Government Advocates on
the advice of the Law and Legislative Affairs Department.
06. Shri Mathur, learned senior counsel, further submits that the
State Government has framed and published M.P. State Litigation
Management Policy, 2018 in M.P. Gazette dated 11.05.2018. As per
Clause 26.5 of the Policy, in each case, there will be a proper and quick
certification of the need to file an appeal by the Government Advocate
through the Office-In-Charge. As per Clause 26.7, no separate
permission from the Law Department would be needed in case of review
of any order passed by the Court, and if the Advocate General or the
Department concerned considers it necessary, the officer-in-charge shall
file the same with permission of the Advocate General / Department
concerned. Likewise, Clause 26.8 authorises the Collector / District
Authority concerned in cases involving the Government land/property
under the administrative control of the Collector / District Authority.
The Collector shall keep the Head of the Department concerned duly
informed of the decisions taken by him with respect to the filing of
appeals/revision/SLPs, etc., against any adverse order/judgment
concerning the Government land/property. Therefore, to some extent,
this policy authorises the concerned department to decide to file an
appeal or revision in a Court that too only in case of filing of review.
But in every case, the permission from the department and the Advocate
General would be necessary.
07. Shri Suyash Prapanna, learned counsel who has filed this
petition, submits that by virtue of Section 29, 30 & 34 of the Advocates
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Act, 1961, he is entitled to practice as an Advocate in all the Courts,
including the Hon'ble Supreme Court. Since the appellants have
engaged him by signing the vakalatnama, hence he has filed these writ
appeals.
08. Shri Vishwajit Joshi, learned Addl. Advocate General appearing
for the State submits that by virtue of Section 79(B) of The Code of
Civil Procedure, 1908 (hereinafter referred as "the Code"), in a suit by
or against the State Government, the authority to be named as plaintiff
or defendant, as the case may be. He further submits that under Order
XXVII Rule (1) & (2) of the Code also in any suit by or against the
Government, the plaint or written statement shall be signed by such
person as the Government may, by general or special order, appoint in
this behalf, and shall be verified by any person whom the Government
may so appoint and who is acquainted with the facts of the case. A
person being an ex officio or otherwise authorised to act for the
Government in respect of any judicial proceeding shall be deemed to be
a recognised agent by whom appearances, acts and applications under
this Code may be made or done on behalf of the Government. Rule 8B
of Order XXVII defines 'Government' and 'Government pleader' in
relation to any suit by or against the Central Government, or against a
public officer in the service of the Government, the Central Government
and such pleader as that Government may appoint whether generally or
specifically for the purposes of this Order. Therefore, these writ appeals
are not liable to be entertained as it is not filed by the Office of A.G. and
without approval and opinion of the law department of the State
Government.
Appreciations and Conclusion
09. The petitioner has filed copy of note-sheet, written by
Ramprakash Gupta, Additional Secretary of Law and Legislative
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Department contains of which reveals that the Deputy Advocate General
gave an opinion that looking to the delay in filing appeal and less chance
of success, the order passed by the Writ Court is liable to be complied
with. Learned Secretary opined that permission cannot be given for
filing the writ appeal before the Division Bench of the High Court, even
if the department wants to file an appeal, they are free to file an appeal
at their own expense. It appears that on the basis of such note-sheet, vide
letter dated 19.02.2025, the Regional Director, Health Services, Ujjain
authorised the CMHO, Mandsaur to contact a counsel and file a writ
appeal. Thereafter, vide letter dated 21.02.2025, the CMHO engaged
Shri Suyash Prapanna Advocate and authorized him to file these writ
appeals on a payment of counsel fees and expenses from the budget of
the department.
10. Under Article 165 of the Constitution of India, the Governor of
each State shall appoint a person who is qualified to be appointed a
Judge of a High Court to be Advocate General for the State. It shall be
the duty of the Advocate General to give advice to the Government of
the State upon such legal matters, and to perform such other duties of a
legal character, as may from time to time be referred or assigned to him
by the Governor, and to discharge the functions conferred on him by or
under this Constitution or any other law for the time being in force. The
Advocate General shall hold the office during the pleasure of the
Governor and shall receive such remuneration as the Governor may
determine. In order to contest the case on behalf of or against the State,
the Government appoints Additional Advocate Generals, Deputy
Advocate Generals, Government Advocates and Deputy Government
Advocates in the Office of Advocate General.
11. As per Article 166(1) of the Constitution of India, all the
executive action of the Government of a State shall be expressed to be
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taken in the name of the Governor and the Governor shall make a rule
for the more convenient transaction of the business of the Government
of the State and the allocation among Ministers of the said business.
Therefore, in exercise of the power conferred under Article 166 of the
Constitution of India, the Government of M.P., General Administration
Department, framed Business (Allocation) Rules. The business of the
State has been allocated to 47 Secretariat Departments, in which the
General Administration Department is at serial No. I and Law &
Legislative Affairs are at serial No.XXI. There is a provision for the
establishment of a secretariat headed by the Principal Secretary in each
department. Every order of the Government of M.P. shall be issued in
the name of Governor signed by Chief Secretary, Additional Chief
Secretary, Principal Secretary, Secretary, Additional Secretary, Joint
Secretary and Deputy Secretary, etc.
12. The Law and Legislative Affairs Department has been divided
into 3 parts, namely, Part A - Legal Advising Wing, Part B - Litigation
Wing and Part C - Legislative Wing. Clause 11 deals with the
authorization of officers to execute contracts and assurance of property
on behalf of the Governor and authorization of officers to sign, verify
plaints or written statements in suits by or against the State Government.
Clause 19 deals with the legal advice and opinion. Clause 21 deals with
the sanction of the prosecution under Section 19 of the Prevention of
Corruption Act, 1988 and under Section 197 of the Code of Criminal
Procedure, 1973. The Litigation Wing is in Part B in where the Office
of Advocate General, Government pleaders and Public Prosecutors are
there. Therefore, it is clear from the aforesaid provisions of the Business
(Allocation) Rules that all the legal proceedings by or against the
Government shall be in the Court through the office of the Advocate
General, Government pleaders, Law Officers, etc. If any legal opinion is
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required, the Government shall take an opinion from the Advocate
General / Addl. Advocate General / Dy. Advocate General, etc.
13. In pursuance of the recommendation of the 13th Finance
Commission, the Government of M.P. has framed the M.P. State
Litigation Management Policy, 2018, for improvement in the manner
the litigation is being managed and conducted by the State Government
and to transform the State Government into an efficient and model
litigant. This litigation policy has been made applicable to all
Government departments, public sector undertakings, and statutory
bodies of the State that are directly or indirectly involved in the
litigation pending before the Court / Tribunal. The Government
departments and their functionaries, Law Officers, Government
counsels, are the stakeholders in this policy. It provides that for effective
implementation of the case as soon as the opinion of the institution of
the case matter is received by the department or the department decides
to institute a case or prefer an appeal, it will be incumbent upon the
Collector concerned to appoint a suitable officer as in-charge of the case
who will be authorized to sign the vakalatnama / affidavit. The Secretary
of the department may also appoint the officer-in-charge of the case. It is
mandatory for the Law Officer concerned to extend full cooperation to
the officer-in-charge of the case. Annexure 1 is attached to this policy,
describing the conduct of the officer-in-charge in the office of the
Advocate General / Government pleader / Public Prosecutor. The
Annexure 1 is reproduced below:
Functions and duties of the officer in-charge of the case
Conduct of the officer in-charge of the case should conform to
the following norms:-
(i) After receiving the letter of appointment, the officer in-
charge shall study the case file, prepare a brief note of the
facts and before contacting the Office of Advocate General,
collect all the necessary information, documents/data,
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circulars, notifications, etc. pertaining to the matter involved.
(ii) The officer in-charge shall also make necessary
communication and coordination with the Legal Cell of the
Department so as to ensure that he is well equipped with the
relevant information and documents pertaining to the case.
(iii) The officer in-charge before arriving at the office of the
Advocate General shall first contact the Nodal Officer of the
Department, share the details of the case and obtain the
current status of the case before getting the file marked from
the Office of Advocate General.
(iv) The officer in-charge shall contact the Law Officer to
whom the file is marked on the same day and shall follow the
instructions given by the Law Officer in respect of the case in
hand. In case, he could not get the return/ appeal/concerned
proceedings prepared or filed on the same day, he shall get an
endorsement about the next date from the concerned Law
Officer with specific reasons.
(v) The officer in-charge shall not keep the file of the office of
Advocate General unnecessarily in his custody after leaving
the office.
(vi) The officer in-charge shall be responsible for making
immediate communication to the concerned departmental
authority through the Legal Cell about any instructions given
by the Office of Advocate General.
(vii) The officer in-charge shall be given direct access to the
head of the Legal Cell so as to ensure that no unnecessary
delay is caused in transmitting the information/documents to
the Office of Advocate General to facilitate the speedy
disposal of cases.
(viii) The officer in-charge shall be responsible to handle each
case assigned to him till the litigation is completely set at rest.
He shall constantly monitor the court proceedings in relation
to the cases assigned to him and send the monthly status
report in this regard to the Legal Cell of concerned
department.
(ix) It shall be the personal responsibility of the officer in-
charge to ensure that the cases are properly defended in the
courts of law.
(x) Officer in-charge will be appointed by mentioning the
Designation first and in case of transfer or retirement of such
officer, he/she shall hand over entire record of the cases before
demitting his/her office to his/her successor, who shall
continue to be the officer in-charge. The successor officer
shall immediately report to the head of Legal Cell about such
change under due intimation to the Nodal officer.
(xi) In case any adverse order is passed in a particular case, it
shall be personal responsibility of the officer in-charge to
immediately contact the office of Advocate General with the
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certified/authentic copy of the order so as to seek necessary
opinion and to act in accordance with opinion forthwith,
keeping in mind the aspect of limitation.
(xii) Any lapse on the part of the officer in-charge in respect
of the case assigned to him shall be treated to be
misconduct/dereliction from duties and appropriate
departmental action in terms of the provisions contained under
M.P. Civil Services (Conduct) Rules, 1965 and M.P. Civil
Services (CCA) Rules, 1966 shall be attracted against him/her.
14. According to the aforesaid, after receiving the letter of
appointment, the officer-in-charge shall visit the Office of Advocate
General for filing a case or defending a case against the Government by
filing a return/ reply. Clause 26 of the Policy of 2018 deals with the
filing of appeal. Clause 26 is reproduced below:
26. FILING OF APPEALS
26.1. Appeals will not be filed against ex-parte ad interim
orders uniess stakes are very high or the order is against
public interest. Attempt must be made to first get the order
vacated. An appeal will be filed against an order only if the
order is not vacated and the continuation of such order causes
prejudice especially in matters of vital public importance.
26.2. Appeals must be filed intra court in the first instance.
Direct appeals to the Supreme Court must not be resorted to
except in extraordinary cases.
26.3. Given that Tribunals are meant to remove the loads from
Courts, a challenge to orders of Tribunals should be an
exception and not a matter of routine.
26.4. In Service Matters, appeals will generally not be filed in
cases where:
(i) The matter pertains to an individual grievance
which does not cause any major repercussion;
(ii) The matter pertains to a case of pension or
retirement benefits without involving any principle
and without setting any precedent or financial
implications beyond Rs. 5 lacs.
26.5. In each case, there will be proper and quick certification
of the need to file an appeal by the Government Advocate and
the office-in-charge. Such certification will contain brief but
cogent reasons in support thereof. At the same time, reasons
will also have to be recorded as to why it was not considered
fit or proper to file an appeal.
26.6. The offices of the Advocate General and Legal
Remembrancer, while giving their opinion for filing an
appeal/ further appeal, shall mention the substantial question
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of law involved in the cases, where the appeal lies only when
a substantial question of law is involved and not on facts.
26.7. No separate permission from law department would be
needed in case of Review of any order passed by the Court, if
Advocate General the Department concerned considers fiting
it necessary. The officer in-charge shatt file the same with
permission of the Advocate General/Department concerned.
26.8. In the cases involving Government land/properties under
the administrative control of the Collector/ District Authority,
the Collector /District Authority will be competent to allow
filing of appeals/ revisions in consultation with the
government lawyer where any adverse order/judgement,
disallowing the claim of the government, is passed by the
court. However, if the Collector/District Authority concerned
on the advice of the government advocate, finds that the
appeal/revision need not be filed, he shall submit a detailed
report duly supported by the opinion of the government
advocate, to the Head of the Department who will consider the
matter and take appropriate decision. The Collector/ such
District Authority shall keep the Head of the Department
concerned duly informed of the decisions taken by him with
respect to filing of appeals/revision/SLPs, etc., against any
adverse order/judgement concerning the Government
land/property.
15. It is clear from the aforesaid provisions of the litigation policy
for filing any petition or appeal or review, revision, etc., the permission
from Law Department as well as the Office of Advocate General will be
necessary. No suit, petition, appeal (civil or criminal) can be filed on
behalf of the State or against the State without opinion from the Law
Department and by the Office of Advocate General, Government
pleader, Public Prosecutor, etc.
16. In view of the above discussion, we are of the opinion that once
the Advocate General or any Government Advocate forms an opinion
that it is not a fit case to contest before the Court of law, the concerned
department may take legal opinion from the Law and Legislative
Department of the State. Even if the Law Department declines to give an
opinion to file an appeal, the concerned Head of the Department may
decide to file a case before the Court by way of petition / appeal /suit,
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etc., by recording its satisfaction in the note-sheet. The Head of the
Department shall appoint an officer-in-charge who shall contact the
Advocate General for filing a petition / appeal /suit, etc. or reply to
contest the case on behalf of the Government. In such an event, the
office of Advocate General shall not refuse. No other private lawyer can
file an appeal or case against the Government or on behalf of the
Government. Therefore, these writ appeals filed through Suyash
Prapanna Advocate are not liable to be entertained. Accordingly, all the
present Writ Appeals are dismissed.
17. In view of the above, the Head of the Department of Public
Health & Family Welfare Department may record its opinion and
satisfaction to file writ appeals. If he forms an opinion, he shall appoint
the officer-in-charge to file writ appeals through the office of the
Additional Advocate General at Indore.
18. The valuable assistance rendered by Shri Piyush Mathur,
learned senior counsel as amicus curiae and Shri Vishwajit Joshi,
Additional Advocate General is appreciated and recorded.
19. A copy of this order be sent to the Principal Secretary of the
General Administrative Department, Government of M.P. and the
Advocate General of M.P. for implementation.
20. Let a photocopy of this order be kept in all the aforesaid
connected writ appeals.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
Divyansh
