Madras High Court Dismisses Plea For Reservation In Appointment Of Law Officers, Says Merit Should Be Sole Consideration

“It cannot be held that reservation – vertical and/or horizontal needs to be provided while appointing the Law Officers by the government. The procedure is laid down. The procedure laid down does not suffer from the vice of arbitrariness, nor it can be said that the procedure is not transparent,” the court observed.

In dismissing the pleas, a bench of Chief Justice SV Gangapurwala and Justice Bharatha Chakravarthy observed that the appointment of Law Officers by the government was not a civil post and the officers were not employees of the Government. Thus, while selecting law officers, the Government had to select the most competent, capable, and meritorious lawyers to represent them as Law Officers.

“In the selection of Law Officers, the government is duty bound to make earnest efforts to choose the best. In view of that, while selecting the Law Officers, merit ought to be the sole consideration. The methodology adopted for selecting the Law Officers naturally has to be transparent and the invitation of the applications should be broad-based, so as to enable the government to select the most competent, capable and meritorious lawyers to represent it as Law Officers. Eventually, they would be safeguarding the public interest,” the court said.

The court was hearing a plea by Thol Thirumaavalavan, President of Viduthalai Cchirutthagal Katchi (VCK) to quash the Government Order bringing in rules relating to the appointment of Law Officers to the High Court of Madras and its bench in Madurai and to frame new rules to ensure transparency, adequate representation to women, scheduled caste, scheduled tribe and minorities.

Thirumaavalavan submitted that even assuming that appointments to the post of Law Officers were temporary, as per an Office Memorandum issued in 1968, reservation for scheduled caste, and scheduled tribe was to be provided in all temporary appointments except the appointments which lasted less than 45 days. Thus, it was submitted that the Appointment of Law Officers of High Court of Madras and its Bench at Madurai (Appointment) Rules, 2017 was arbitrary, unjust, and liable to be quashed.

Thirumaavalavan also challenged the appointment process and submitted that there was no transparency as the basis of selection was not revealed by the government. Thus, it was contended that to uphold the already downtrodden, vulnerable, and oppressed groups of society, a fair and transparent procedure was to be adopted.

The Advocate General, on the other hand, informed the court that the post of Law Officer was not a civil post and they were not employees of the State, but professional practitioners engaged to do specific work by using their expertise. The State relied on the judgment of the Apex Court in Indra Sawney v Union of India wherein it was held that in certain services and positions, it was not advisable to provide for reservation. Concerning the rules, the State informed the court that the appointments were made by following the 2017 Rules.

The court noted that the government, being the custodian of public interest was obligated to protect the public interest to the optimum extent and in the best possible manner. To fulfill this duty, the Government was mandated to engage the best officers based on 'merit.' 

The court also noted that the relationship between the government and the Law Officer was a purely professional one and not that of a master and servant. The court emphasized that the Law Officers were not government servants, not employees.

Since the appointment of the Law Officer was at the pleasure of the government, the court observed that the appointment was not a tenure appointment. Thus, the court observed that Article 16(4) of the Constitution and the reservation policy were not attracted in the present appointments.

Accordingly, the court noted that the procedures already existing were not arbitrary and dismissed the pleas.

Counsel for the Petitioner: Mr.M.Palanimuthu

Counsel for the Respondent: Mr.R.Shunmugasundaram Advocate General assisted by Mr.P.Muthukumar State Government Pleader and Ms.A.G.Shakeena

Counsel for Intervenors: Mr.Kaviyanathan for M/s.Nathan and Associates

Citation: 2023 LiveLaw (Mad) 388

Case Title: Thol Thirumaavalan v The Principal Secretary

Case No: W.P.No.14582 of 2017