Law officers case full order tssj bench THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM and THE HONOURABLE MRS.JUSTICE S.ANANTHI W.P.(MD) No.9830 of 2021 and W.M.P.(MD) Nos.7554, 7556 & 7557 of 2021 A.Kannan … Petitioner. appears that on permission being granted by the Registry of this Court, on Saturdays, the learned Advocates are permitted to come in a restricted manner to open the Chambers in order to collect the case bundles. Therefore, if the respondents address a letter to the Registrar General of this Court requesting permission to enter the premises for the purpose of affixing notices in the respective Advocates / Bar Associations, such permission shall be granted by the Registrar General. Though affixing notices in the Notice Boards of the respective Advocates / Bar Associations may not fully serve the purpose on account of the present lock down, yet since few number of Advocates would be visiting the Chambers Block, they can be put on notice board about the oncoming selection. Before we part, we wish to observe that due care and caution be taken by the respondents in conducting the selection process and appointing counsels to appear for the State Government, so that, effective assistance could be given to the Courts.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Date of Reserving the Order
Date of Pronouncing the Order
07.06.2021
16.06.2021

CORAM:

THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
and
THE HONOURABLE MRS.JUSTICE S.ANANTHI

W.P.(MD) No.9830 of 2021
and
W.M.P.(MD) Nos.7554, 7556 & 7557 of 2021

A.Kannan … Petitioner

~vs~

1.The State of Tamilnadu
Rep.by its Chief Secretary
Secretariat
Chennai~600 009

2.The Principal Secretary to
Govt. of Tamilnadu
Public (Law Officers) Department
Secretariat
Chennai~600 009

3.The Selection Committee for
Appointment of Government Law Officers
Rep.by its Chairman, the Advocate General
O/o.Advocate General
High Court Campus
Chennai~600 104

4.The High Court of Madras
Rep.by its Registrar General
High Court Campus
Chennai~600 104

5.The Director General of Police
Head of Police Force
No.4, Dr.Radhakrishnan Salai
Mylapore
Chennai~600 004

6.The Secretary to Government of Tamilnadu
Home (Courts~IV) Department
Secretariat, Chennai~600 009

7.The Bar Council of Tamilnadu and Puducherry
Rep.by the Secretary
High Court Campus
Chennai~600 104 … Respondents

PRAYER: Petition filed under Article 226 of the Constitution of India, to
issue a writ of certiorarified mandamus to call for the entire records
pertaining to the impugned Government Order in G.O.(Ms) No.590, Public (Law
Officers) Department, dated 04.09.2019, which made the amendment appointment
of Law Officers of High Court of Madras and its Bench at Madurai
(Appointment) Rules, 2017 and quash the same as ilegal, against the Rules
2017 and against the directives made in the verdict of the Hon-ble First
Bench of Madras High Court in W.P.No.12951 of 2017, dated 28.04.2018 and
consequently, direct the respondents 1 to 3 to appoint the law officers in
the High Court of Madras and its Bench at Madurai in consonant with the
verdict of the Apex Court in a case reported in (2016) 3 MLJ 776 (SC) and by
duly adhering the Appointment of Law Officers of High Court of Madras and its
Bench at Madurai (Appointment) Rules, 2017 as amended on 2018 and to follow
the judgment of the Hon-ble First Bench of Madras High Court in W.P.No.12951
of 2017, dated 28.05.2018 in letter and spirit by inviting applications from
all eligible advocates aspiring for the said posts by issuing a notification
providing equal opportunity to them by assessing their suitability and
professional competency by adopting a selection process by way of a
competitive examination with regard to the practice in the High Court such as
independent drafting and pleading on their own or in the alternate to follow
a transparent selection process in a manner known to law by adhering
requirements of Article 14 and 16 of the Constitution of India by uploading
all stages of the selection processes in the official website of the second
respondent within a time limit fixed by this Court and to direct the fifth
respondent to upload the antecedent reports of the law officers appointed in
the Police Department-s official website and to direct the seventh respondent
to upload the details of the law officers, their academic qualification and
pendency of disciplinary proceedings in the official website of the Bar
Council of Tamilnadu.

For Petitioner : Mr.A.Kannan, Party~in~Person

For Respondents : Mr.R.Shanmugasundaram
Advocate General for R1 to R3, R5 & R6

O R D E R

T.S.SIVAGNANAM, J.

This writ petition filed by a practising Advocate before this Court, styled
as a public interest litigation, seeks for issuance of a writ of
certiorarified mandamus to quash G.O.Ms.No.590, Public (Law Officers)
Department, dated 04.09.2019, by which certain amendments were made to the
Law Officers of High Court of Madras and its Bench at Madurai (Appointment)
Rules, 2017 (hereinafter, referred to as ?the Rule and the amended Rule?).

2. According to the petitioner, the impugned amended Rule is against the
directions issued by the Honourable First Bench of this Court in W.P.No.12951
of 2017, dated 28.04.2018, in the case of V.Vasanthakumar vs. The Chief
Secretary, Government of Tamil Nadu and therefore, seeks for a direction upon
the respondents 1 to 3 to appoint law officers for this Court in consonance
with the verdict of the Honourable Supreme Court in the case of State of
Punjab vs. Brijeshwar Singh Chahal [(2016) 3 MLJ 776 (SC)] by inviting
applications from all eligible advocates aspiring for the said post, by
issuing a notification providing equal opportunity to them, by assessing
their suitability and professional competency by adopting a selection process
by way of competitive examination with regard to the practice in the High
Court, such as, independent drafting and pleading on their own or in the
alternate, to follow a transparent selection process in the manner known to
law by adhering to the requirements of Articles 14 and 16 of the Constitution
of India, by uploading all stages of the selection process in the official
website of the second respondent within a time limit fixed by this Court and
to direct the fifth respondent to upload the antecedent reports of the law
officers appointed in the Police Department-s official website and to direct
the seventh respondent to upload the details of the law officers, their
academic qualification and pendency of disciplinary proceedings in the
official website of the Bar Council of Tamil Nadu.

3. We have heard Mr.A.Kannan, appearing in person and Mr.R.Shanmugasundaram,
learned Advocate General appearing for the respondents 1 to 3, 5 & 6.

4. Before we proceed to consider the contentions advanced before us, much of
which had been pleaded in the affidavit filed in support of the writ
petition, we need to take note of certain averments made by the petitioner in
the accompanying affidavit, more particularly, in Paragraph No.10 of the
affidavit, wherein, the petitioner would state that there is no necessity
warranting the State Government to appoint counsels temporarily to represent
the Government before the High Court both at the Principal Seat and the
Madurai Bench, which is not permissible under the Rules and that the State
Government is doing things, which cannot be directly done and the appointment
of the Law Officers with the different nomenclature will also cast more
financial burden on the State Government, more particularly, during the
pandemic period.

5. In the typed set of papers filed along with the writ petition, the
petitioner has enclosed the copies of the Government Orders in G.O.Ms.No.277,
Public (Law Officers) Department, dated 13.05.2021; G.O.Ms.No.292, Public
(Law Officers) Department, dated 28.05.2021 and G.O.(Ms) No.216, Home
(Courts~IV) Department, dated 31.05.2021. These Government Orders are not
impugned in the writ petition. Therefore, we are not required to test the
correctness of the said Government Orders and all allegations and aspersions
cast upon such temporary appointments have to be necessarily eschewed and are
accordingly, eschewed. The Government Orders clearly state that on a request
made by the learned Advocate General, the Government of Tamil Nadu had
appointed counsels for the Government to appear in civil and criminal cases
temporarily until the law officers are selected and appointed in terms of the
Rules.

6. The learned Advocate General, who appeared before this Court through video
conferencing, has also mentioned that those appointments are to enable the
Government to represent before this Court and to ensure that the proceedings
before this Court are not in any manner affected on account of absence of law
officers for the State. Thus, we will proceed to decide this writ petition
with regard to the prayer sought for and examine as to whether the amended
Rule is against the directives issued in the case of V.Vasanthakumar (supra)
and as to whether the consequential directions sought for by the petitioner
are sustainable.

7. V.Vasanthakumar, a practising Advocate before this Court, filed a writ
petition as a public interest litigation challenging the 2017 Rules published
in the Government Gazette, dated 29.04.2017 and also sought for an order of
injunction to restrain the State Government from appointing law officers to
represent the State before the Constitutional Courts, Subordinate Courts
etc., without following a transparent procedure.

8. The Honourable First Bench of this Court, after taking note of various
provisions of the 2017 Rules and also noting the submissions of the
petitioner and by placing reliance on the decision of the Honourable Supreme
Court in the case of State of Punjab vs. Brijeshwar Singh Chahal [(2016) 3
MLJ 776 (SC)], pointed out that there is no specific challenge to the Rule 4,
which lays down the eligibility for appointment to the various categories of
Government law officers and that the said petitioner has only challenged the
method of appointment of law officers stipulated in Rule 5 and in particular,
Rule 5(4) thereof. Further, it was pointed out that the petitioner therein
has also impugned Rule 7(1) providing for removal of Government law officers
without reason by giving one month-s notice or on payment of one month-s
retainer fee in lieu of such such notice, as unreasonable. After considering
the submissions, it was held that Rule 5(4) does not confer unbridled power
on the Advocate General and the Advocate General is only to make preliminary
scrutiny of the applications received from eligible lawyers and forward the
names of all eligible candidates to the Government, after a preliminary
enquiry. Further, it was pointed out that no appointment should be made
either for pursuing a political purpose or for giving some undue advantage to
any section.

9. Further, it was pointed out that no lawyer has a right to be appointed as
a Government law officer, but, every eligible lawyer has a right to be
considered for appointment, if he / she offers himself / herself for such
appointment. Further, the task of selection being in the exclusive arena of
the Government and / or its instrumentalities, judicial review of such
appointments would be limited only to examining whether the process of
appointment is vitiated by any illegality, irregularity, perversity or
irrationality as held by the Honourable Supreme Court in the case of
Brijeshwar Singh Chahal (supra).

10. Further, it was held that the Court would not sit in appeal to re~assess
and / or make a comparative assessment of the merits of the candidates as
long as the method of appointment did not suffer from any infirmity.
Further, noting that under the 2017 Rules, the Advocate General forwards the
names of the eligible candidates, after which a Selection Committee
comprising of the Advocate General and three Secretaries of the State
Government make the selection and the selection is made by a panel and not by
the Advocate General alone. Noting that the Rules do not contain any
guidelines with regard to the mode and method of the selection from out of
the eligible candidates forwarded by the Advocate General, direction was
issued to the State Government to formulate and / or frame definite
guidelines for the manner and / or criteria of selection of advocates to the
post of Government law officers and in particular, the mode of giving
weightage to the Court appearances, advocacy, legal acumen, quality of
drafting pleadings, reported and unreported judgments, academic background,
integrity, behaviour, general reputation etc., for all future appointments
and as and when Government law officers are selected, applications should be
invited from eligible advocates by putting up notices in the recognized Bar
Associations. Thus, in the said decision neither Rule 5(4) nor Rule 7(1) of
the 2017 Rules, which were challenged before the Court, were struck down or
in other words, their validity was upheld. The direction issued to the State
Government was to formulate and / or frame guidelines for the manner and / or
criteria of selection of advocates to the post of law officers. The Judgment
was delivered by the Honourable First Bench on 28.04.2018. Admittedly, there
have been several appointments post the decision and it is not clear as to
whether there was any challenge to any of such appointments made after the
decision.

11. Be that as it may, the State Government, by G.O.Ms.No.590, Public (Law
Officers) Department, dated 04.09.2019, brought about certain amendments to
the 2017 Rules. We shall refer to these Rules as the amended Rules. The
petitioner has not questioned the insertion of words ?Additional Public
Prosecutor? in sub~clause (b) of Rule 4(i) nor there is any challenge to the
insertion of sub~clause (h) in Rule 4(i), which prescribes the eligibility
for a person to be appointed as an Additional Advocate General. There is no
challenge to sub~rule (I) to Rule 4(i), which stipulates the eligibility for
appointment as Government Pleader or Public Prosecutor or Special Government
Pleader or Additional Public Prosecutor. Likewise, there is no challenge to
sub~clause (j) in Rule 4(i), which stipulates the eligibility for appointment
as Additional Government Pleader. Essentially, the challenge is to sub~
clause (k) in Rule 4(i), which stipulates the eligibility for being appointed
as Government Advocates. The amended Rule states that subject to Rule 8, no
person shall be eligible for appointment in the High Court as a Government
Advocate unless he furnishes a letter given by his senior to the effect that
he has assisted him and worked in the High Court for not less than three
years. The petitioner appearing in person would submit that the amendment
has ignored the directions issued in the case of V.Vasanthakumar (supra) and
on account of the amendment, a person can be appointed as a Government
Advocate merely by furnishing a letter given by his senior to the effect that
he had assisted him and worked in the High Court for not less than three
years and such a procedure is not a fair procedure. Furthermore, the
amendment has diluted the decision in the case of V.Vasanthakumar (supra),
which is binding upon the State and it would amount to contempt of Courts.
Furthermore, the impugned amendment has denied equal opportunity to the
meritorious candidates to be considered for appointment as law officers
representing the State in the High Court of Madras and its Madurai Bench.

12. Other arguments were advanced by the petitioner with regard to the
consequences, which will occur if inexperience advocates are appointed as law
officers and that it would affect the administration of justice of this
Court. Several other submissions were made by the petitioner by referring to
the decision in the case of Brijeshwar Singh Chahal (supra) and certain other
decisions of this Court, wherein very pointed observations were made with
regard to the manner of selection of law officers and importance to have
efficient law officers to defend the State and also to give effective
assistance to the Court.

13. After elaborately considering the submissions of the petitioner, we are
of the considered view that the amended Rule does not in any manner dilute or
interfere with the directions issued in the case of V.Vasanthakumar (supra).
As noted above, in V.Vasanthakumar-s case, the Honourable First Bench held
that Rule 5(4) does not confer unbridled power on the Advocate General.
Further, the challenge to Rule 7(1) was also not entertained. The directions
issued were to frame guidelines stipulating the criteria of selection of
advocates to the post of Government law officers. What the State has done is
to frame a Rule, which definitely has to be placed in a higher pedestal than
the guideline as the Rule has been notified in the Tamil Nadu Government
Gazette.

14. As mentioned above, there is no serious challenge to the amended Rule
with regard to the eligibility criteria fixed for candidates to be eligible
for being appointed as Additional Advocate General, Government Pleader,
Public Prosecutor, Special Government Pleader, Additional Public Prosecutor
or Additional Government Pleader. The main focus is on the eligibility of an
advocate to be considered for appointment as Government Advocate. The
petitioner would contend that mere furnishing a letter by a senior stating
that his junior has assisted him in the High Court for three years is not
proper and it would lead to various other sequences. As pointed out in the
case of V.Vasanthakumar (supra), task of selection of Government Advocates is
in the exclusive arena of the Government and / or its instrumentalities,
judicial review of such appointments would be limited only to examining as to
whether the process of appointment is vitiated by any irregularity,
illegality, perversity or irrationality. These observations were made taking
note of the Judgment of the Honourable Supreme Court in the case of
Brijeshwar Singh Chahal (supra). Admittedly, this writ petition has not been
filed challenging any appointment orders issued to the Government law
officers. Rather, the challenge is to the amendment to the 2017 Rules, which
was notified in the Tamil Nadu Government Gazette on 04.09.2019. Therefore,
in our considered view, the second limb of the prayer sought for by the
petitioner, namely, the consequential directions sought for by the
petitioners are pre~mature.

15. While on this, we take note of the submissions of the learned Advocate
General that temporary appointments have been made to enable the Government
to be represented before the Court and also to ensure that the Court
proceedings are not affected on account of the non~availability or non~
appearance of Government counsels. The learned Advocate General would
further state that the procedures stipulated under the Rules would be
followed while making appointments in terms of the Rules. Therefore, it is
too early for the petitioner to presume and assume certain things and that
all actions, which may occur at a future point of time, would be not
sustainable. Such inference or conclusion cannot be arrived at by the
petitioner especially when the appointment process is yet to begin. Thus, we
need to examine as to whether the amended Rule stipulating the eligibility
criteria for an advocate to be considered for appointment as Government
Advocate is illegal, arbitrary, irrational and discriminatory.

16. Even during the course of hearing of the writ petition, we have pointed
out to the petitioner that it is a matter of pride and prestige for a young
member of the Bar to have his name included in the vakalat. Very often, it
takes more than three years for a young member of the Bar to be included in
the bottom of the list of names of advocates in the vakalat filed by the
office of the senior. When we pointed out this, the petitioner contended the
advocate concerned should at least file one case in his own name, especially
when they had an experience of three years in the Bar. The legal profession
is governed by precedents. Equally so, practice of law is guided and
cultivated by a learning process under the pupillage of a senior. It is said
that race horses are identified from the stable, from which they come.
Equally, the lawyers for their life are identified with the senior under whom
they are trained. If we are to accept the argument of the petitioner, then
we would be undermining the statement, which a senior would made for his
junior while certifying that he worked and assisted him in the matters before
this Court for a period of three years. To the best of the knowledge of this
Court, every senior would always cherish and be proud of the achievements of
his / her juniors when they occupying various positions. Therefore, the
petitioner should give utmost credence and solemnity to the letter given by
the senior certifying that his junior instructed him in the matters before
this Court for a period of three years. Thus, we find that there is no
irrationality or illegality or arbitrariness nor any discrimination in Rule
4(i)(k) for it to be struck down.

17. As mentioned above, the learned Advocate General has submitted before
this Court that the process of selection is yet to begin and every care would
be taken to select and appoint the best candidates in a fair and transparent
manner, in accordance with law and in consonance with the observations made
by the Honourable Supreme Court in the case of Brijeshwar Singh Chahal
(supra) and by the Honourable First Bench of this Court in the case of
V.Vasanthakumar (supra).

18. In the light of the above, the prayer sought for by the petitioner to
quash G.O.Ms.No.590, Public (Law Officers) Department, dated 04.09.2019, is
rejected. With regard to the consequential relief sought for by the
petitioner, we taken note of the submissions made by the learned Advocate
General that the process of appointment of Government counsels is yet to
begin and that the temporary appointments have been made to facilitate the
smooth conduct of the proceedings before this Court. These submissions are
placed on record.

19. The learned Advocate General expressed certain difficulties in issuing
the notification inviting applications for various categories of law officers
on account of the present pandemic situation. In this regard, the learned
Advocate General has drawn our attention to the Rules, which stipulate the
method of appointment of law officers etc. and also invited our attention to
the directions issued in the case of V.Vasanthakumar (supra). It is
submitted by the learned Advocate General that the respondent ? State would
adhere to the Rules, which have been framed and also proceed in accordance
with the observations and directions issued in the case of V.Vasanthakumar
(supra).

20. Further, it is submitted by the learned Advocate General that on account
of the pandemic situation and that the Advocates / Bar Associations, both in
the Principal Seat and the Madurai Bench, have been closed, the respondents
would not be in a position to put up the notice inviting applications from
eligible Advocates to be considered for appointment as Government law
officers in the Notice Boards of the respective Advocates / Bar Associations.
In this regard, the learned Advocate General referred to Paragraph No.18 of
the order in the case of V.Vasanthakumar (supra).

21. Ever since end of March, 2020, the Court proceedings have been conducted
through virtual mode and that information are also disseminated virtually,
the learned members of the Bar no longer get hard copies of the daily cause
lists and the cause lists are viewed / downloaded from the website. The
virtual hearing is also activated by the learned members of the Bar by
clicking the active link provided in the cause list portal. Therefore, we
find that there may not be much difficulty for the respondent ? State to make
known to the members of the legal fraternity that applications are being
invited for appointment to various categories of law officers in the State.
That apart, currently, all recruitment agencies, including Tamil Nadu Public
Service Commission, call for applications by publishing notification in the
Website of the TNPSC / Government and conduct recruitments online.
Therefore, there can be no difficulty in giving wide publicity by issuing
paper publication, sending messages and in turn, the respective Advocates /
Bar Associations can inform their members about the forthcoming selection.
In addition, the State Government can upload the information in the relevant
official website and also, if necessary, issue a press release.

22. It appears that on permission being granted by the Registry of this
Court, on Saturdays, the learned Advocates are permitted to come in a
restricted manner to open the Chambers in order to collect the case bundles.
Therefore, if the respondents address a letter to the Registrar General of
this Court requesting permission to enter the premises for the purpose of
affixing notices in the respective Advocates / Bar Associations, such
permission shall be granted by the Registrar General. Though affixing
notices in the Notice Boards of the respective Advocates / Bar Associations
may not fully serve the purpose on account of the present lock down, yet
since few number of Advocates would be visiting the Chambers Block, they can
be put on notice board about the oncoming selection. Before we part, we wish
to observe that due care and caution be taken by the respondents in
conducting the selection process and appointing counsels to appear for the
State Government, so that, effective assistance could be given to the Courts.

23. In the result, while rejecting the prayer sought for by the petitioner to
quash G.O.Ms.No.590, Public (Law Officers) Department, dated 04.09.2019, the
writ petition stands disposed of with the above directions. No costs.
Consequently, connected miscellaneous petitions are closed.

[T.S.S., J.]
[S.A.I., J.]
16.06.2021
Index : Yes / No
Internet : Yes / No

Note :
In view of the present lock down owing to COVID~19 pandemic, a web copy of
the order may be utilized for official purposes, but, ensuring that the copy
of the order that is presented is the correct copy, shall be the
responsibility of the advocate / litigant concerned.
krk

To:
1.The Chief Secretary,
State of Tamilnadu,
Secretariat, Chennai~600 009.

2.The Principal Secretary to
Govt. of Tamilnadu,
Public (Law Officers) Department,
Secretariat, Chennai~600 009.

3.The Chairman, the Advocate General,
Selection Committee for
Appointment of Government Law Officers,
O/o.Advocate General,
High Court Campus,
Chennai~600 104.

4.The Registrar General,
High Court of Madras,
High Court Campus,
Chennai~600 104.

5.The Director General of Police,
Head of Police Force,
No.4, Dr.Radhakrishnan Salai,
Mylapore, Chennai~600 004.

6.The Secretary to Government of Tamilnadu,
Home (Courts~IV) Department,
Secretariat, Chennai~600 009.

7.The Secretar,
Bar Council of Tamilnadu and Puducherry,
High Court Campus,
Chennai~600 104.

T.S.SIVAGNANAM, J.
and
S.ANANTHI, J.

krk

ORDER
IN
W.P.(MD) No.9830 of 2021
and
W.M.P.(MD) Nos.7554, 7556 & 7557 of 2021

16.06.2021

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