Appointment Of Law Officers At Advocate General's Office Not Public Employment, No Reservation For Such Professional Engagements: MP High Court

The bench comprising of Justice Sheel Nagu and Justice A.K. Sharma concurred with the decision of the Writ Court, holding that the same was in consonance with Article 16(4) of the Constitution of India and the intent of the M.P. Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994 ("Adhiniyam, 1994"). The Court cited the following reasons for coming to the said conclusion-

• Appointment of Advocate General or any other Law Officer in the Office of Advocate General, is purely professional in nature and that the said relationship cannot be categorized as public employment. Moreover, they are not salaried employees and equivalent to those employees/officers in public employment. They are paid professional charges at a fixed rate, revisable from time to time at the pleasure of the State Government.
• The Advocate General or any other Law Officer in the Office of Advocate General does not hold any particular post since there is no civil post involved.
• There is no employer-employee relationship between the State Government and the Advocate General/Law Officer in the Office of Advocate General.
• The Advocate General or any other Law Officer in the Office of Advocate General are not subject to any service regulations, but are governed purely by the Advocates Act, 1961 and professional ethics while discharging their duties.
• The Adhiniyam, 1994 exclusively relates to Public Services and Posts which means civil post under the State, whereas the appointments of the Advocate General or any other Law Officer in the Office of Advocate General are not against any particular civil post or public service.

In addition to the above, the Court noted that the expression "Public Services and Posts" as defined under Section 2(f) of Adhiniyam, 1994 means the services and posts in any office of the establishment. The Court opined that the Office of the Advocate General does not come within the ambit of the term "Establishment" as defined under Section 2(b) of Adhiniyam, 1994-

The meaning of expression "Establishment" has been limited to the office of the State Government which means all the civil posts created in any of the departments under the State Government. The Office of Advocate General is not a department under the State Government. The Office of Advocate General is neither created under any statutory authority nor constituted under any Act of the State and also under a University or a Company, Corporation or a Cooperative Society, in which at least 51% of the paid up share capital is held by the State Government. The Office of Advocate General is also not a private institution receiving grant-in-aid. More so, the Advocate General or Law Officer in the Office of Advocate General can never be treated as part of work charge or contingency paid establishment or casual appointment.

With the aforesaid observations, the Court held that it saw no reason to hold a view different from that of the Writ Court. Accordingly, the decision of the Writ Court was upheld and the appeal was dismissed.

Case Title : O.B.C. ADVOCATE WELFARE ASSOCIATION v STATE OF M.P. AND ORS

Citation: 2022 LiveLaw (MP) 175

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