Mundrika Prasad Sinha Vs. State of
Bihar [1979] INSC 191 (20 September 1979)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
SHINGAL, P.N.
CITATION: 1979 AIR 1871 1980 SCR (1) 759 1979
SCC (4) 701
CITATOR INFO :
RF 1991 SC 537 (15)
ACT:
Advocate-Appointed as Government Pleader to
conduct all Government cases-Government, if has power lo appoint Assistant
Government Pleaders and withdraw cases from Government Pleader.
HEADNOTE:
The petitioner, who was an Advocate, was
authorised by the Government to represent it in all the civil cases in a
district court. Considering the pendency of a large number of Government cases
before courts and tribunals the Government appointed nine Assistant Government
Pleaders during the term of office of the petitioner as Government Pleader and
asked him to make over all the land acquisition cases to one of the Assistant
Government Pleaders. The petitioner refused to comply with the Government's
instructions and stated That he would himself conduct all the cases. The
Government, however, stuck to its stand. His writ petition impugning the
Government's decision was dismissed by the High Court.
Dismissing the petition under Art. 136.
HELD: 1. The definition of Government Pleader
contained in s. 2(7) of the Code of Civil Procedure is an inclusive definition
which, read along with O. 21, rr. 4 and 8(c) clearly yields the inference that
Government may have as many Government Pleaders as it likes to conduct its
cases.
The section vests no sole control on one
Government Pleader over others and the Government is perfectly free to put a
particular Government Pleader in charge of particular cases.
Government Pleaders and Assistant Government
Pleaders who had been appointed according to administrative rules of the State
are Government Pleaders within the meaning of the definition in s. 2(7) of the
Code. Each one of them may depute other lawyers and exercise control over such
surrogates. [763 G; 764 C]
2. The Bihar Rules regarding Government
Pleaders, which are purely administrative prescriptions and which serve as
guidelines and on which no legal right can be founded do not help the
petitioner. The allocation of work or control inter se is an internal
arrangement and there is no error in the behaviour of the Government. [764F-G]
3. When there were several thousand cases in
the courts in the State and hundreds of cases before Tribunals it was but right
that Government did not sacrifice the speedy conduct of cases by not appointing
a number of pleaders. It is inconceivable how the petitioner would have
discharged his duties to the court and to the client of this crowd of land
acquisition cases was posted in several courts more or less at the same time.
[765D-E] Ramachandran v. Alagiriswami, A.I.R. 1961 Madras 450, approved.
[1. Despite the national litigation policy
evolved by the All India Law Ministers' Conference in 1957 and the
recommendation of the Law Commission there is still a proliferation of
government cases in courts uninformed 760 by such policy. It is important that
the State should be a model litigant with accent on settlement. Time has come
for State Governments to have a second look, not only at the litigation policy
but lawyers' fees rules especially in mass litigation involving ad valorem
calculations in fixing fees in land acquisition cases. [762 B; 763 CI
2. The politicisation of Government
Pleadership which is a public office is an issue of moment in a developing
society controlled by the politics of skill and enjoying a legal monopoly. It
is a healthy practice that the Government appoints these lawyers after
consultation with the District Judge. Governments under our Constitution shall
not play with law offices on political or other impertinent considerations as
it may affect the legality of the action and subvert the rule of law itself
[765 C]
CIVIL APPELLATE JURISDICTION: Special leave
Petition (Civil) No. 6056 of 1979.
From the Judgment and Order dated 12-7-1979
of the Patna High Court in C.W.J.C. No. 1618/79.
P. Govindan Nair and S.K. Sinha for the
Petitioner.
L.N. Sinha, Attorney General, V.P. Singh and
R.B. Mahton for the Respondent.
The Order of the Court was delivered by
KRISHNA IYER, J. An unusual grievance of a Government Pleader, the petitioner,
ventilated in a writ petition, was given short shrift by the High Court in a
laconic order, but undaunted by this summary brevity the petitioner has pursued
his case to this Court under Article 136. In utter nudity, his case is a claim
of monopoly of all government cases in the Patna District, including lucrative
land acquisition litigation, as part of the professional 'estate' of a
Government Pleader. The prospective cash value of this heavy crop of cases is
estimated by him to be around one lakh of rupees and this secret is perhaps at
the back of this lawyer's litigation. Sri Govindan Nair, appearing for him,
has, however, argued that his client's claim as the sole representative of
Government in courts is not a legal cover for seeking lucre but for vindicating
the inviolability of the high public office of Government Pleader by
politicking men in the Secretariat or by practitioners of favouritism dressed
in 'little brief authority', a deeper issue in which the Bar has a stake and
the Bench must also be concerned. We wholly endorse the view that at some vital
levels of justice, the Besh Bench may hang limp if the Bar does not represent.
Justice to his office, not love of rupees, was urged as the respectable
motivation for his persistent litigation, may be.
761 The fabric of facts, on which the
grievance in law rests, may be appreciated first. The petitioner was admittedly
the Government Pleader for the Patna District, 'authorised to represent'
Government in all the civil cases.
During the currency of his term a plurality
of nine Assistant Government Pleaders was appointed and one of them was put in
charge of a bunch of land acquisition cases. The petitioner was requested to
make over those briefs to the new nominee. Thereupon, the petitioner challenged
the power of Government, like any other litigant, to appoint any other lawyer
except under him and never by excluding him. He went to the extent of writing
to Government:
"I am, therefore, unable to comply with
your instruction in allowing any Assistant Government Pleader to work in this
case. I shall myself conduct this case and I have enough time for it."
Government wrote back that in future he would not be given such cases.
Chagrined by this loss of income and mayhem to his monopoly he rushed to the
High Court for the universal panacea of a writ. The chemistry of Article 226 is
governed by severe rules, and the High Court declined to dispense the magic
remedy. So he has sought special leave from this Court but Article 136 has its
own conditions and limitations. Sans substantial question of law of public
importance which deserves to be decided by the Supreme Court or at least flaw
in law which is fraught with manifest injustice, there is no other open
sea-same for this House of Justice. That password has not been uttered here,
despite exercises in professional martyrdom the petitioner claims to have
suffered, and so we close the door but by a speaking order since counsel's
arguments have centered on the peril to the public office of Government Pleader
ship with potential menace to the administration of justice. Mystic muteness,
however correct, may sometimes mislead when plain speech may finally silence.
What is the gravamen of this Government
Pleader's legal grievance ? His economic grievance, however much he may hide
it, is the prospective loss of fee from land acquisition cases which were
spirited away. This 'commercial' aspect is an unhappy temptation against which
the legal profession must take care. Having due regard to the rhetoric and
reality surrounding the profession, is an avidity for briefs, because they
yield a lakh of rupees by way of fees, a clean linen to be washed in court ?
What, in essence, is the orientation of the bar ? 'Geared to the people or' a
conspiracy against the laity ? 'The politicisation of government pleadership
which is a public office and the lucre-loving appetite for law offices, in the
absence of a wholesome ceiling on lawyer's fees, 762 are issues of moment in a
developing society controlled by the politics of skill and enjoying a legal
monopoly.
The State of Bihar, like many other States in
the country, has an enormous volume of litigation. Government litigation policy
is vital for any State if resources are to be husbanded to reduce rather than
increase its involvement in court proceedings. It is lamentable that despite a
national litigation policy for the States having been evolved at an all-India
Law Ministers' Conference way back in 1957 and despite the recommendations of
the Central Law Commission to promote settlement of disputes where Government
is a party, what we find in actual practice is a proliferation of government
cases in courts uninformed by any such policy. Indeed, in this country where
government litigation constitutes a sizeable bulk of the total volume, it is
important that the State should be a model litigant with accent on settlement.
The Central Law Commission, recalling a Kerala decision, emphasised this aspect
in 1973 and went to the extent of recommending a new provision to be read as
Order 27 Rule 5B. The Commission observed:
"27.9. We are of the view that there
should be some provision emphasising the need for positive efforts at
settlement, in suits to which the Government is a party.
27.10. With the above end in view, we
recommend the insertion of the following rule:- 5-B(1) In every suit or
proceeding to which the Government is a party or a public officer acting in his
official capacity is a party, it shall be the duty of the Court in the first
instance, in every case where it is possible to do so consistently with the
nature of the circumstances of the case, to make every endeavour to assist the
parties in arriving at a settlement in respect of the subject-matter of the
suit.
(2) If in any such suit or proceeding, at any
stage it appears to the court that there is a reasonable possibility of a
settlement between the parties, the court may adjourn the proceeding for such
period as it thinks fit, to enable attempts to be made to effect such a
settlement.
(3) The power conferred by sub-rule (2) is in
addition to any other power of the court to adjourn the proceedings." The
relevance of these wider observations is that avoidable litigation holds out
money by way of fees and more fees if they are contested 763 cases and this
lures a lawyer, like any other homo economics, to calculate income on a
speculative basis, as this Government Pleader has done in hoping for a lakh of
rupees.
We have been taken through the Bihar
Governments rules for fees of Government Pleaders in subordinate courts. Rule
115 appetises and is unrelated to the quantum or quality of work involved nor
the time spent. Ad valorem calculation in filing fees for land acquisition
cases has a tendency to promote unearned income for lawyers. The petitioner
here has presumably fallen victim to this proclivity. The time has come for
State Governments to have a second economic look not only at litigation policy
but lawyer's fees rules (like rule 115 in the Bihar instance) especially in
mass litigation involving ad valorem enormity and mechanical professionalism.
Even a ceiling on income from public sector sources may be a healthy
contribution to toning up the moral level of the professional system. After
all, the cost of justice is the ultimate measure of the rule of law for a
groaning people. Government and other public sector undertakings should not
pamper and thereby inflate the system of costs. Maybe, this petition would not
have been filed had the prospect of income without effort not been offered by
Government Rules.
A closer look at the legal stand may be
helpful. The manifest injustice pleaded by the Government Pleader (the
petitioner) is that the official income, expected from this heavy harvest of
cases, of Rs.. 1 lakh was being taken away by a brother practitioner. In
support of this alleged injustice, he has pressed into service section 2(7) of
the Code of Civil Procedure which runs thus:
"2(7). '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."
Manifestly, this is an inclusive definition and, read alongwith Order 27 Rule
(4) and (8) B(c), clearly yields the inference that Government may have as many
Government Pleaders as it likes to conduct its cases even as any client, who
has a crowd of cases to be conducted, my engage a battery of lawyers.
Government is in no worse position that an ordinary litigant and is not bound
to encourage monopoly within the profession. Indeed, the root cause of the
petitioner's desire to corner all the litigation of the Government is that its
policy of legal remuneration has no distributive bias nor socially sober
ceiling. Some States have already adopted such a 764 policy. Indeed, the State
must evolve a policy in regard to its Law Officers which concedes to counsel
freedom to recommend settlement of cases if they feel it just to do so and
further practises distributive justice which preempts the need for adjournment
because of absence of counsel and, lastly, sets a limit on the total fee
payable for government work executed.
Section 2(7) of the Code of Civil Procedure
being an inclusive definition allows any number of Government pleaders. It
vests no sole control on one Government pleader over others and Government is
perfectly free to put a particular Government pleader in charge of particular
cases.
Each one of them is a Government Pleader and
may depute other lawyers and exercise control over such surrogates. In this
view, there is no error in the summary dispatch deservedly given by the High
Court to the writ petition whose main merit was daring novelty.
We must state that the learned Attorney
General, appearing for the State, was critical of a lawyer asking for or
clinging to briefs and counsel for the petitioner (a former High Court Chief
Justice) rightly slurred over the pecuniary part of the petition and veneered
his submissions with the law of the high office of government pleadership.
We fully appreciate the perspective presented
by counsel. But before we come to that, let it be bluntly stated that if
Government does an act offending the public office filled by a Government
pleader what becomes the incumbent in the land of Gandhi is a dignified
renunciation of office, not a chase for the lost briefs through the 'writ'
route. Moreover, the legal position is plain. As explained earlier, a bunch of
Government pleaders is perfectly permissible consistently with Section 2(7) and
Order 27 rule (4) Civil Procedure Code. Nor do the Bihar rules regarding
government pleaders help. They are purely administrative prescriptions and
serve as guidelines and cannot found a legal right, apart from the fact that
they do not contradict Government's power to appoint more than one Government
Pleader. Allocation of work or control inter se is an internal arrangement and
we see no error even in that behaviour. Not to have provided more government
counsel when the volume of litigation demanded it, would have clogged the
dockets in Court and helped one pleader to corner all the briefs without
reference to expeditious or efficient disposals.
Be that as it may, one of the major streams
of litigation in which government finds itself entangled flows from land
acquisition. 'The States' developmental projects which necessarily must be
large, involve acquisition of lands on a large scale. Bihar is no exception.
Since com- 765 pensation claims come in considerable number before the Civil
courts, several lawyers have to be engaged by the State for expeditious
attention to its court litigation. The State, appreciating this need and with a
view to help the court liquidate the docket explosion, appointed more than one
government pleader for every District, depending on the case flow. Thus,
Government Pleaders and Assistant Government Pleaders were appointed according to
administrative rules of the State. Each one is a Government Pleader under Sec.
2(7), Code of Civil Procedure.
It is heartening to notice that the Bihar
Government appoints these lawyers after consultation with the District Judge.
It is in the best interest of the State that it should engage competent lawyers
without hunting for political partisans regardless of capability. Public
offices and Government Pleadership is one-shall not succumb to Tammany Hall or
subtler spoils system, if purity in public office is a desideratum. After all,
the State is expected to fight and win its cases and sheer patronage is misuse
of power. One effective method of achieving this object is to act on the advice
of the District Judge regarding the choice of Government pleaders. When there
were several thousand cases in the Patna courts and hundreds of cases before a
plurality of tribunals, it was but right that Government did not sacrifice the
speedy conduct of cases by not appointing a number of pleaders on its behalf,
for the sake of the lucrative practice of a single government Pleader. It is
inconceivable how he would have discharged his duties to the court and to his
client if this crowd of land acquisition cases were posted in several courts
more or less at the same time. Adjournment to suit advocates' convenience
becomes a bane when it is used only for augmentation of counsel's income,
resisting democratisation and distribution justice within the profession. These
principles make poor appeal to, those who count, which is a pity.
Coming to the larger submission of counsel
for the petitioner, we do recognise its importance in our era of infiltration
of politicking even in forbidden areas. A Government pleader is more than an
advocate for a litigant.
He holds a public office. We recall with
approval the observations a Division Bench of the Madras High Court made in
Ramachandran v. Alagiriswami and regard the view there, expressed about a
Government Pleader's office, as broadly correct even in the Bihar set-up.
" .... the duties of the Government
Pleader, Madras are duties of a public nature. Besides, as already explained
the public are genuinely concerned with the manner in 766 which a Government
Pleader discharges his duties because, if he handles his cases badly, they have
ultimately to foot the bill. The Rajasthan case does not take into account all
the aspects of the matter.
(36) The learned Advocate General argued that
the Government Pleader, Madras is only an agent of the Government, that his
duties are only to the Government who are his principles and that he owes no
duty to the public at all and that for that reason he would not be the holder
of a Public office.
(37) It is difficult to accept this view. The
contention of the learned Advocate General may have been less untenable if the
duties of the Government Pleader were merely to conduct in courts cases to
which Government are a party. But, as the rules stand, he has a number of other
duties to discharge. Besides, even if his only duty is the conduct of cases in
which Government have been impleaded, still as explained more than once before
the public are interested in the manner in which he discharges his duties.
...... ...... ......
(90) I am clearly of opinion that having
regard to the fact that the Government Pleader of this court is employed by the
State on remuneration paid from the public exchequer and having regard to the
various functions and duties to be performed by him in the due exercise of that
office, most of which are of an independent and responsible character, the
office must be held to be a public office within the scope of a quo warranto
proceeding.
I consider that the most useful test to be
applied to determine the question is that laid down by Erle, J.
in (1851) 17 QB 149. The three criteria are,
source of the office, the tenure and the duties. I have applied that test and I
am of opinion that the conclusion that the office is a public office is
irresistible".
In this view, ordering about a Government
Pleader is obnoxious but nothing savouring of such conduct is made out although
we must enter a caveat that Governments under our Constitution shall not play
with Law Offices on political or other impertinent considerations as it may
affect the legality of the action and subvert the rule of law itself.
After all, a Government Pleader and, in a
sense, every member of the legal profession, has a higher dedication to the
people.
767 We dismiss the special leave petition but
with a sad tag, which is the message of this martyrdom. Professions shall not
be concealed conspiracies with 'effete, aristocratic, protective coloration',
which at the same time enables one to make a considerable Sum of money without
sullying his hands with a "job" or "trade". The remarks of
Tabachnik, in 'Professions for the People', about English professions of the
eighteenth century smell fresh:
"One could carry on commerce by sleight
of hand while donning, the vestments of professional altruism.
To boot, one could also work without
appearing to derive in come directly from it. As Reader explains:
The whole subject of payment...... seems to
have caused professional men acute embarrassment, marking them take refuge in
elaborate concealment, fiction, and artifice. The root of the matter appears to
lie in the feeling that it was not fitting for one gentleman to pay another for
services rendered, particularly if the money passed directly. Hence, the device
of paying barrister's fee to the attorney, not to the barrister himself. Hence,
also the convention that in many professional dealings the matter of the fee
was never openly talked about, which could be very convenient, since it
precluded the client or patient from arguing about whatever sum his advisor
might eventually indicate as a fitting honorarium (1966 p 37).
The established professions-the law,
medicine, and the clergy-held (or continued to hold) estate-like positions:-
The three 'liberal professions' of the eighteenth century were the nucleus
about which the professional class of the nineteenth century was to form. We have
seen that they were united by the bond of classical education: that their broad
and ill-defined functions covered much that later would crystallize out into
new, specialised, occupations: that each, ultimately, derived much of its
standing with the established order in the State. (1966, p. 23)." The time
has come to examine the quality of the product or service, control the price,
floor to ceiling, enforce commitment to the people who are the third world
clients, and practise internal distributive justice oriented on basic social
justice so that the profession may flourish without wholly hitching the calling
to the star of material amassment immunised by law from the liabilities of
other occupations. We do not suggest that lawyering in India needs a National
768 Commission right now as in England and elsewhere, nor do we subscribe to
the U.S. situation on which the President and the Chief Justice have
pronounced. We quote- "We are over lawyered....... Lawyers of great
influence and prestige led the fight against civil rights and economic
justice.. They have fought innovations even in their own profession... Lawyers
as a profession have resisted both social change and economic reform."
(President Carter, May, 1978) "We may well be on our way to a society
overrun by hordes of lawyers, hungry as locusts, and brigades of justices in
numbers, never before contemplated." (U.S. Chief Justice Burger) Law
Reform includes Lawyer Reform, an issue which the petitioner has unwittingly
laid bare. After all, as Prof.
Connel states- "Criticism of relatively
conservative institutions in times of social questioning is hardly a new
phenomenon." (Australian Law Journal, Vol. 51, p. 351) This long judicial
journey vindicates the Short High Court order- Dismissed.
P.B.R. Petition dismissed.
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