Singh Wasu Vs. State of Punjab  INSC 466 (29 October 1993)
S. (J) MOHAN, S. (J) VENKATACHALLIAH, M.N.(CJ) CITATION: 1994 SCC (1) 184 JT
1993 (6) 259 1993 SCALE (4)289
Judgment of the Court was delivered by MOHAN, J.- The appellant was appointed
Advocate-General of the State of Punjab by the President of India by Notification No. 1178-2JJ-72 dated January 24, 1972. The terms of appointment are that
he would be paid salary of Rs 1,500 per month and that in the matter of his
duties and other terms he will be governed by the rules framed under Article
165 of the Constitution of India vide Notification No. 8746-JJ-53/38717 dated July 6, 1953 amended from time to time. Clause
(f) of para 6 of the 1953 Notification reads thus:
In civil writ cases and in letters patent appeals arising therefrom which shall
not be considered as civil miscellaneous cases, the fee shall be one hundred
rupees for civil writ or letters patent appeal." 2.Thus, the fee of the
Advocate-General was fixed at Rs 100 for each writ petition. Even though a
number of writ petitions are disposed of on the same point of law or facts or
even when the matter is covered by an earlier 186 judgment he would be entitled
to the fee amounting to a sum equivalent to the number of writ petitions
disposed of, multiplied by Rs 100.
appellant was receiving fees as per these stipulations for over three years.
However, on August 27,
1975 he was visited
with the following communication:
(JAILS & JUDICIAL) DEPARTMENT NOTIFICATION 7th August, 1975
No:12679-2JJ-75/25572.-In exercise of the powers conferred by Article 165 of
the Constitution of India and all other powers enabling him in this behalf, the
Governor of Punjab is pleased to make the following rules further to amend the
rules regulating the remuneration and duties of the Advocate- General published
with Punjab Government Notification No: 8746-JJ-53/38717, dated July 6, 1953
[hereinafter referred to as the Advocate-General Punjab (Remuneration and Duties)
Rules, 1953], namely:
rules may be called the Advocate- General 'Punjab (Remuneration and Duties) (First Amendment) Rules, 1975.
the Advocate-General Punjab (Remuneration and Duties) Rules, 1953, in rule 6 or
clause (f), the following shall be substituted namely:
in civil writ cases, letter patent appeals and in applications for getting
certificate of fitness for appeal to the Supreme Court arising from such civil
writ cases and appeals, which shall not be considered as civil miscellaneous
cases the fee shall be one hundred rupees per such civil writ or letters patent
appeal or application, as the case may be: Provided that in respect of such
cases- (a) which are decided by one judgment on account of common questions of
law or fact being involved; or (b) which are decided on the basis of an earlier
judgment on account of being covered by that judgment;
fee shall be payable only in one case in which main judgment is delivered and
one half of the fee shall be payable in each connected case subject to the
condition that total fee payable in the main case as well as in the connected
cases shall not exceed one thousand rupees.' R.P. Ojha Secretary to Government,
Punjab, Home Department." 4.As a
result of this, the fee payable in cases which are decided by one judgment, in
batch cases, or on the basis of an earlier judgment on account of the matter
being covered, would be only Rs 100. In any event, the total fee was not to
exceed Rs 1,000 where the matters are covered by a prior judgment. The
appellant protested to the Chief Minister about the alteration of fee structure
which resulted in substantial reduction and requested that the 187 enforcement
of the notification may be kept in abeyance. A further reminder in this regard
was issued on October
result of these, a meeting was convened on July 14, 1976 by the Home Secretary to Government
of Punjab to consider the issue in the presence of the appellant.
suggestions were made in the course of a detailed discussion. The appellant,
however, insisted on the restoration of original terms. By a communication
dated September 8/10, 1976 he conveyed his views to the Secretary, Home
Department, Government of Punjab. The appellant would have it that the terms
for restoring fee structure found favour with the Government. To that effect a
proposal was made by the Home Department and was submitted to the then Chief
Minister who accepted the proposal to revoke the notification dated August 7,
1975 and the file was marked to the Secretary for issue of orders. But, the Law
Department advised that the matter be placed before the Cabinet. The Cabinet
resolved that a Sub-Committee might look into the matter and report back to the
Cabinet. At this stage, the Congress Government went out of office on April 30, 1977.
the exit of Congress Government, the State of Punjab came under President's Rule. The appellant offered to
resign his post. However, he was requested to continue till the formation of
the new Government. Eventually, his resignation was accepted on June 24, 1977. Even before this, on June 8, 1977 the Governor on the advice of his Adviser,
took a decision to scrap the resolution of the Cabinet and to refer the matter
to the two member Sub- Committee in relation to the fixation of fee of the
Advocate General. The appellant protested against this by his letter dated June
10/14, 1977. After the formation of the new Government, the matter was taken up
by the appellant with the new Government. He also requested the successor Advocate-General
to take up the matter with the Chief Minister in July 1977.
bills on account of the writ petition conducted by the appellant for the months
August 1975 to May 1977 which were prepared according to the original scale of
fees were returned by the Under Secretary (Home) to the appellant on August 17,
1977. He was asked to present the bills according to the terms of the
notification dated August
7, 1975. Thereafter
the appellant spoke to the Advocate- General, Punjab. He also wrote a letter to him on November 15, 1977. The further letters dated February 16, 1978 and March 25, 1978 also proved fruitless. The appellant received a cryptic
reply on May 5, 1978 to the following effect:
The Home Secretary to Government, Punjab.
Joginder Singh Wasu, Ex. Advocate-General, Punjab, 86, Sector 2, Chandigarh.
No.: 5054-2JJ-78/13944 Dated: 5-5-1978.
Reference your letters dated February 16, 1978
and March 25, 1978 regarding clearance of your pending
are requested to send revised fee bills in accordance with the amendment issued
vide Punjab Government Notification No. 12679- 2JJ-72/25572, dated August 7, 1975.
Under Secretary Home, For Home Secretary to Government, Punjab. 2/5"
Thereupon, he preferred Civil Writ Petition No. 2252 of 1978. That was
dismissed in limine by judgment dated May 24, 1978. Hence, this appeal by special
leave to appeal.
learned counsel for the appellant submits that under Article 165 of the
Constitution of India the appellant was appointed as Advocate-General. Having
regard to the terms of clause (2) of that article once an Advocate-General is
appointed on certain terms in relation to the fees given to him an assurance as
to the terms of employment is given.
terms cannot be interfered with unilaterally. Even assuming that the Governor
under Article 165 can make any rule in relation to the fees of the
Advocate-General, the impugned notification dated August 7, 1975 cannot have retrospective operation.
said notification dated August
7, 1975 was signed
only by the Chief Minister on behalf of the Government. It was never placed
before the Cabinet nor was it approved as such. An alteration or amendment of
the terms must necessarily be considered and approved by the Cabinet;
it will be invalid. In any event, the impugned notification was passed behind
the back of the appellant and, therefore, it is invalid.
opposition to this, learned counsel for the respondent would state that where
essentially the position of the parties is that of an advocate and a client it
is open to the client to stipulate a particular fee. Should the appellant be
unwilling, nothing prevents him from giving up his position as
Advocate-General. As a matter of fact, where no effort is made in relation to
disposal of cases like batch cases or in cases which are covered by earlier
decisions the Government thought fit that it will not only be prudent but also
just to award one single fee. When the appellant ventilated his grievances a
specific conference was convened at a high level and it was found that no
revision was warranted. To contend that it is not possible for the Government
to alter the fees would amount to ignoring the wording of the article. Since
the Advocate- General is to discharge the functions in accordance with the law
for the time being in force, once a power is given to fix the fees, the
corresponding power to alter the fees from time to time is equally available.
There is no necessity for the matter to be approved by the entire Cabinet.
office of an Advocate-General is an exalted one.
the supreme law officer of the State.
Article 165 of the Constitution of India reads as under:
(1). 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.
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.
Advocate-General shall hold office during the pleasure of the Governor, and
shall receive such remuneration as the Governor may determine." 14.This
article corresponds to Article 76 which relates to the Attorney General for India. In fact, it closely follows
Article 76 except for the omission of clause (3) from this article. Under this
article, the Advocate-General is appointed by the Governor.
functions of the Advocate-General are mentioned in clause (2). They are as
give advice to the Government of a State upon such legal matters as may from
time to time be referred to him by the Governor;
perform such other duties of a legal character as may from time to time be
assigned to him by the Governor;
discharge the functions conferred on him by or under this Constitution; and
(iv)to discharge the functions conferred on him by or under any other law for
the time being in force.
will be seen that the functions of the Advocate- General include the
performance of duties of a legal character which may from time to time be
referred to or assigned to him by the Governor.
clause (3) the Advocate-General shall hold office during the pleasure of the
Governor and shall receive such remuneration as the Governor may determine.
Under Section 55(3) of the Government of India Act, 1935, the forerunner to
this article also, it was provided that the Advocate- General was to hold
office during the pleasure of the Governor and was to receive such remuneration
as the Governor may determine. Section 55 of the Government of India Act, 1935
reads as under:
(1) The Governor of each Province shall appoint a person, being a person
qualified to be appointed a judge of a High Court, to be Advocate-General for
shall be the duty of the Advocate- General to give advice to the Provincial
Government upon such legal matters, and to perform such 190 other duties of a
legal character, as may from time to time be referred or assigned to him by the
Advocate-General shall hold office during the pleasure of the Governor, and
shall receive such remuneration as the Governor may determine." 18.Under
Article 177 he is conferred the right to audience before the Legislature of a
State both in the Assembly and the Council. In fact, he is treated on a par
with the Minister. The said article reads as under:
Every Minister and the Advocate-General for a State shall have the right to
speak in, and otherwise to take part in the proceedings of the Legislative
Assembly of the State or, in the case of a State having a Legislative Council,
both Houses, and to speak in, and otherwise to take part in the proceedings of,
any committee of the Legislature of which he may be named a member, but shall
not, by virtue of this article, be entitled to vote." 19.Having regard to
his high position when any statement or a concession is made by him the courts
have always accepted his statement and acted on that. In Periyar and Pareekanni
Rubbers Ltd. v. State of Kerala' this Court observed:
concession made by the government pleader in the trial court cannot bind the
Government as it is obviously always unsafe to rely on the wrong or erroneous
or wanton concession made by the counsel appearing for the State unless it is
in writing on instructions from the responsible officer. Otherwise it would
place undue and needless heavy burden on the public exchequer. But the same
yardstick cannot be applied when the Advocate-General has made a statement
across the bar since the Advocate-General makes the statement with all responsibility."
20.The relationship between the Advocate-General and the State Government is
essentially that of an Advocate and a client in relation to his appearance in
court and arguing the case before the court on behalf of the State. No doubt,
the appellant came to be appointed on certain terms envisaged under
notification dated July
6, 1953. It did
stipulate Rs 100 for each of the writ petitions irrespective of the fact
whether it was a batch case or cases covered by the earlier judgments of the
court. But we are unable to accept the contention of the appellant that the
notification can never be amended. In fact, the notification clearly stipulates
"as amended from time to time". Therefore, the fees fixed in clause
6(f) under notification dated July 6, 1953
cannot remain unaltered. In passing, we may observe that to accept the argument
of the appellant would mean it cannot be amended even for enhancing the fees.
It so happens in this case there is a reduction of fees. That it should remain
static for all times to come is an argument which we find difficult to accept.
Nor can it be contended that during his term it cannot be changed at all. No
doubt, the appellant was greatly affected by the 1 (1991) 4 SCC 195, 209: AIR
1990 SC 2192, 2199-2200 191 amendment proposing one set of fees in batch cases
as well as cases covered by earlier judgments. It also requires to be noted
that a meeting was convened on July 14, 1976
for rationalisation and revision of fees payable to the Advocate-General and
the law officers. The matter was discussed at some length. Before these
conclusions could fructify into a rule, the then Government fell down. Once, as
observed above, the relationship between the parties, namely, the
Advocate-General and the State is that of an advocate and a client, a client
may propose the fees. It is open to the advocate to stipulate a higher fee. If
that is not agreed to he cannot compel the client that he must be entrusted
with the brief for him to conduct on the fee stipulated by him. May be, the State
Government, for reasons best known to itself, is not agreeable to the old fee
structure. The position of the State vis-a-vis the Advocate-General may be
described in the words of William Shakespeare:
worth is unknown, Although his height be taken." 21.But the
Advocate-General cannot say that he shall be continued on the same terms of
appointment. He no doubt asked the State Government as W.S. Gilbert said:
heart of grace, Thy steps retrace." 22.But once that is not forthcoming he
will have to bid goodbye as Alfred De Musset said:
moi me tourmente:
can't help it, the idea torments me." 23.We have already referred to the
letter dated May 5,
1978 wherein the
appellant was requested to send the revised bill for the work done by him. The
appellant shall send the revised bill as per that request. Within four weeks
from the date of receipt of revised bill, the entire amount due to him shall be
calculated in accordance with the amended Notification No. 126792JJ-75/25572
dated August 7, 1975 and shall be paid to him together
with interest @ 12% per annum.
obliged to award interest since the Government had the benefit of use of the
said amount for a long number of years.
to the above direction, the civil appeal is dismissed. However, there shall be
no order as to costs.