Bombay HC sets aside en masse termination of Law Officers on change of Government [Read Judgment]

In a recent decision, Aurangabad Bench of Bombay High Court has set aside en masse termination of Law Officers of the State, terming it as “arbitrary and illegal”. The Officers had been accused of indulging in conduct incompatible with their duties as a Law Officer, after they had filed a Contempt Petition against the State.

The Bench reiterated the principle that the right to judicial remedies for redressal of either personal or public grievance is a constitutional right and the Law Officers who had a fixed tenure of engagement, could not be considered to be a different or inferior class, to whom such right is unavailable. The operation of the judgment was however suspended up to January 31, 2016.

The Bench, comprising Justice P.R. Bora and Justice R.M. Borde, observed, “Contempt Petition was filed under the bona fide belief that the State or the Officers of Law & Judiciary Department have violated order of the Court. The Officers of the law & Judiciary Department or the State Government need not be so touchy on account of presentation of contempt by the petitioners. It is a right of an individual to adopt and take recourse to legal remedies for redressal of his/her grievance. If petitioners, under bona fide belief, feel that the Law & Judiciary Department has not observed directions of the Court, issued in earlier judgment (W.P. No. 3258 of 2015), and availed of legal remedies available in law by presenting contempt petitions, it cannot be said that such act of the petitioners is incompatible with their duties. It is an extreme action on behalf of the State to brand them as guilty of committing any act or conduct, which is claimed to be incompatible with their duties.”

The Court was hearing a petition filed by Mr. Kishor M. Gadhave Patil, along with several Public Prosecutors. Even though the tenure provided under their appointment orders would not have expired till June 2016, their appointment was terminated by the State Government in exercise of powers under Rule 30(5) of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984.

They had contended that after the change of the ruling party pursuant to Maharashtra Legislative Assembly elections, the newly formed Government intended to install Law Officers of their choice by removing present Law Officers working in the High Court as well as in the subordinate Courts. Consequently, an advertisement was issued on March 13 2015, which contained a clause which had an effect of terminating engagement of Law Officers automatically from the date of issuance of fresh appointment orders. It was contended that it is impermissible for the State Government to discontinue engagement of the existing Law Officers, without observing the procedure prescribed under Rule 30.

On the contrary, the State Government had averred that the nature of relationship between the State Government and Government Advocate is akin to a litigant and advocate. Hence, it is open for the State Government to discontinue engagement of their advocates at any time. It was further emphasized by the State that even for the completion of their tenure, they have to appear before the Interview Panel after tendering an application, as required in the advertisement.

The condition of automatic termination was directed to be quashed by a Division Bench of the Bombay High Court. This order was challenged by a Special Leave Petition before the Supreme Court. However, the State later withdrew the Petition.

Following this, the Petitioners had preferred a Contempt Petition against the State, objecting to the Act of the State in calling upon them to appear for the interview.

The engagement of Government Advocates/ Public Prosecutors was then brought to an end, taking recourse to Rule 30 (5), which empowers the Government to remove a Law Officer, if he is guilty of any act or conduct, which in the opinion of the Government, is incompatible with his duties as a Law Officer.

The State had contended that the act of the Petitioners in filing the Contempt Petitions was incompatible with their duties as a Law Officer. The Court however, rejected this contention. “The act of presentation of contempt petition by the petitioners cannot be construed to be an act incompatible with their duties as Law Officers since duties have been prescribed under the Rules and it has not been demonstrated that the act of the petitioners is violative of any of the duties prescribed under Rule 14,” it observed.

Read the Judgment here.