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PETITIONER: MUNDRIKA PRASAD SINHA

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT20/09/1979

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. SHINGAL, P.N.

CITATION:  1979 AIR 1871            1980 SCR  (1) 759  1979 SCC  (4) 701  CITATOR INFO :  RF         1991 SC 537  (15)

ACT:      Advocate-Appointed as Government Pleader to conduct all Government  cases-Government,   if  has   power  lo  appoint Assistant  Government   Pleaders  and  withdraw  cases  from Government Pleader.

HEADNOTE:      The petitioner,  who was an Advocate, was authorised by the Government  to represent  it in all the civil cases in a district court.  Considering the  pendency of a large number of  Government   cases  before   courts  and  tribunals  the Government  appointed  nine  Assistant  Government  Pleaders during the  term of  office of  the petitioner as Government Pleader and  asked him to make over all the land acquisition cases to  one of  the  Assistant  Government  Pleaders.  The petitioner  refused   to  comply   with   the   Government’s instructions and  stated That  he would  himself conduct all the cases.  The Government, however, stuck to its stand. His writ  petition   impugning  the  Government’s  decision  was dismissed by the High Court.      Dismissing the petition under Art. 136. ^      HELD: 1. The definition of Government Pleader contained in s.  2(7) of  the Code  of Civil Procedure is an inclusive definition which,  read along  with O.  21, rr.  4 and  8(c) clearly yields  the inference  that Government  may have  as many Government  Pleaders as  it likes to conduct its cases. The section  vests no sole control on one Government Pleader over others  and the  Government is  perfectly free to put a particular Government Pleader in charge of particular cases. Government Pleaders  and Assistant  Government Pleaders  who had been  appointed according to administrative rules of the State are  Government Pleaders  within the  meaning  of  the definition in  s. 2(7)  of the  Code. Each  one of  them may depute  other   lawyers  and   exercise  control  over  such surrogates. [763 G; 764 C]      2. The Bihar Rules regarding Government Pleaders, which are purely  administrative prescriptions  and which serve as guidelines and on which no legal right can be founded do not help the petitioner. The allocation of work or control inter

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se is  an internal  arrangement and there is no error in the behaviour of the Government. [764F-G]      3. When there were several thousand cases in the courts in the  State and  hundreds of cases before Tribunals it was but right  that Government  did  not  sacrifice  the  speedy conduct of  cases by not appointing a number of pleaders. It is inconceivable  how the  petitioner would  have discharged his duties  to the  court and to the client of this crowd of land acquisition  cases was posted in several courts more or less at the same time. [765D-E]      Ramachandran v.  Alagiriswami, A.I.R.  1961 Madras 450, approved.      [1. Despite  the national  litigation policy evolved by the All  India Law  Ministers’ Conference  in 1957  and  the recommendation of  the  Law  Commission  there  is  still  a proliferation of government cases in courts uninformed 760 by such  policy. It  is important that the State should be a model litigant  with accent on settlement. Time has come for State Governments  to have  a second  look, not  only at the litigation policy but lawyers’ fees rules especially in mass litigation involving  ad valorem calculations in fixing fees in land acquisition cases. [762 B; 763 CI      2. The  politicisation of  Government Pleadership which is a  public office  is an  issue of  moment in a developing society controlled  by the  politics of skill and enjoying a legal monopoly. It is a healthy practice that the Government appoints these  lawyers after consultation with the District Judge. Governments  under our  Constitution shall  not  play with  law   offices  on   political  or   other  impertinent considerations as  it may  affect the legality of the action and subvert the rule of law itself [765 C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Special  leave  Petition (Civil) No. 6056 of 1979.      From the  Judgment and  Order dated  12-7-1979  of  the Patna High Court in C.W.J.C. No. 1618/79.      P. Govindan Nair and S.K. Sinha for the Petitioner.      L.N. Sinha,  Attorney  General,  V.P.  Singh  and  R.B. Mahton for the Respondent.      The Order of the Court was delivered by KRISHNA IYER,  J.  An  unusual  grievance  of  a  Government Pleader, the  petitioner, ventilated in a writ petition, was given short shrift by the High Court in a laconic order, but undaunted by this summary brevity the petitioner has pursued his case  to this  Court under Article 136. In utter nudity, his case  is a  claim of monopoly of all government cases in the Patna  District, including  lucrative  land  acquisition litigation, as  part  of  the  professional  ’estate’  of  a Government Pleader. The prospective cash value of this heavy crop of  cases is  estimated by him to be around one lakh of rupees and  this secret  is perhaps  at  the  back  of  this lawyer’s litigation.  Sri Govindan  Nair, appearing for him, has, however,  argued that  his client’s  claim as  the sole representative of  Government in courts is not a legal cover for seeking  lucre but  for vindicating the inviolability of the high  public office of Government Pleader by politicking men in  the Secretariat  or by  practitioners of favouritism dressed in ’little brief authority’, a deeper issue in which the Bar has a stake and the Bench must also be concerned. We wholly endorse  the  view  that  at  some  vital  levels  of justice, the  Besh Bench  may hang  limp if the Bar does not

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represent. Justice  to his  office, not  love of rupees, was urged as  the  respectable  motivation  for  his  persistent litigation, Maybe. 761      The fabric  of facts,  on which  the grievance  in  law rests,  may   be  appreciated   first.  The  petitioner  was admittedly the  Government Pleader  for the  Patna District, ’authorised to represent’ Government in all the civil cases. During  the  currency  of  his  term  a  plurality  of  nine Assistant Government  Pleaders was appointed and one of them was put  in charge of a bunch of land acquisition cases. The petitioner was  requested to  make over  those briefs to the new nominee.  Thereupon, the petitioner challenged the power of Government, like any other litigant, to appoint any other lawyer except  under him and never by excluding him. He went to the extent of writing to Government:           "I am,  therefore,  unable  to  comply  with  your      instruction  in   allowing  any   Assistant  Government      Pleader to  work in  this case.  I shall myself conduct      this case and I have enough time for it."      Government wrote  back that  in future  he would not be given such  cases. Chagrined  by this  loss  of  income  and mayhem to  his monopoly  he rushed to the High Court for the universal panacea of a writ. The chemistry of Article 226 is governed by  severe rules,  and the  High Court  declined to dispense the  magic remedy.  So he  has sought special leave from this  Court but  Article 136 has its own conditions and limitations. Sans  substantial question  of  law  of  public importance which deserves to be decided by the Supreme Court or at  least flaw  in law  which is  fraught  with  manifest injustice, there is no other open sea-same for this House of Justice. That  password has  not been  uttered here, despite exercises in professional martyrdom the petitioner claims to have suffered,  and so  we close  the door but by a speaking order since  counsel’s arguments  have centered on the peril to  the   public  office   of  Government  Pleadership  with potential menace  to the  administration of  justice. Mystic muteness, however  correct, may sometimes mislead when plain speech may finally silence.      What is the gravamen of this Government Pleader’s legal grievance ? His economic grievance, however much he may hide it, is  the prospective  loss of  fee from  land acquisition cases which  were spirited away. This ’commercial’ aspect is an unhappy  temptation against  which the  legal  profession must take  care. Having  due  regard  to  the  rhetoric  and reality  surrounding  the  profession,  is  an  avidity  for briefs, because  they yield a lakh of rupees by way of fees, a clean  linen to  be washed in court ? What, in essence, is the orientation  of the  bar ?  ’Geared to  the people or’ a conspiracy  against  the  laity  ?  ’The  politicisation  of government pleadership  which is  a public  office  and  the lucre-loving appetite  for law  offices, in the absence of a wholesome ceiling on lawyer’s fees, 762 are issues  of moment  in a developing society controlled by the politics of skill and enjoying a legal monopoly.      The State  of Bihar,  like many  other  States  in  the country, has  an enormous  volume of  litigation. Government litigation policy is vital for any State if resources are to be husbanded  to reduce rather than increase its involvement in court  proceedings.  It  is  lamentable  that  despite  a national  litigation  policy  for  the  States  having  been evolved at  an all-India  Law Ministers’ Conference way back in 1957  and despite  the recommendations of the Central Law Commission  to   promote  settlement   of   disputes   where

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Government is  a party, what we find in actual practice is a proliferation of  government cases  in courts  uninformed by any such  policy. Indeed,  in this  country where government litigation constitutes  a sizeable bulk of the total volume, it is  important that  the State  should be a model litigant with accent  on  settlement.  The  Central  Law  Commission, recalling a  Kerala decision, emphasised this aspect in 1973 and went to the extent of recommending a new provision to be read as Order 27 Rule 5B. The Commission observed:           "27.9. We  are of  the view  that there  should be      some  provision   emphasising  the  need  for  positive      efforts at settlement, in suits to which the Government      is a party.           27.10. With  the above  end in  view, we recommend      the insertion of the following rule:-           5-B(1) In  every suit  or proceeding  to which the      Government is a party or a public officer acting in his      official capacity  is a  party, it shall be the duty of      the Court in the first instance, in every case where it      is possible  to do  so consistently  with the nature of      the circumstances  of the case, to make every endeavour      to assist  the parties  in arriving  at a settlement in      respect of the subject-matter of the suit.           (2) If  in any  such suit  or proceeding,  at  any      stage  it   appears  to  the  court  that  there  is  a      reasonable possibility  of  a  settlement  between  the      parties, the  court may adjourn the proceeding for such      period as  it thinks fit, to enable attempts to be made      to effect such a settlement.           (3) The power conferred by sub-rule (2) is in      addition to any other power of the court to adjourn the      proceedings."      The relevance  of  these  wider  observations  is  that avoidable litigation holds out money by way of fees and more fees if they are contested 763 cases  and   this  lures  a  lawyer,  like  any  other  homo economics, to  calculate income  on a  speculative basis, as this Government  Pleader has  done in  hoping for  a lakh of rupees.      We have  been taken through the Bihar Governments rules for fees  of Government Pleaders in subordinate courts. Rule 115 appetises  and is unrelated to the quantum or quality of work involved  nor the time spent. Ad valorem calculation in filing fees  for land  acquisition cases  has a  tendency to promote unearned income for lawyers. The petitioner here has presumably fallen  victim to  this proclivity.  The time has come for  State Governments  to have  a second economic look not only  at litigation policy but lawyer’s fees rules (like rule  115   in  the   Bihar  instance)  especially  in  mass litigation involving  ad  valorem  enormity  and  mechanical professionalism. Even a ceiling on income from public sector sources may be a healthy contribution to toning up the moral level of  the professional  system. After  all, the  cost of justice is  the ultimate  measure of  the rule  of law for a groaning  people.   Government  and   other  public   sector undertakings should  not  pamper  and  thereby  inflate  the system of  costs. Maybe,  this petition  would not have been filed had  the prospect  of income  without effort  not been offered by Government Rules.      A closer  look at  the legal  stand may be helpful. The manifest injustice  pleaded by  the Government  Pleader (the petitioner) is  that the official income, expected from this heavy harvest  of cases, of Rs.. 1 lakh was being taken away by a  brother  practitioner.  In  support  of  this  alleged

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injustice, he  has pressed  into service section 2(7) of the Code of Civil Procedure which runs thus:           "2(7). ’Government  Pleader’ includes  any officer      appointed by the State Government to perform all or any      of the  functions expressly imposed by this Code on the      Government Pleader  and also  any pleader  acting under      the directions of the Government Pleader."      Manifestly, this  is an  inclusive definition and, read alongwith Order 27 Rule (4) and (8) B(c), clearly yields the inference  that  Government  may  have  as  many  Government Pleaders as  it likes  to conduct  its  cases  even  as  any client, who  has a crowd of cases to be conducted, my engage a battery  of lawyers.  Government is  in no  worse position that an  ordinary litigant  and is  not bound  to  encourage monopoly within  the profession.  Indeed, the  root cause of the petitioner’s  desire to corner all the litigation of the Government is  that its  policy of legal remuneration has no distributive bias  nor socially  sober ceiling.  Some States have already adopted such a 764 policy. Indeed,  the State must evolve a policy in regard to its Law  Officers  which  concedes  to  counsel  freedom  to recommend settlement  of cases if they feel it just to do so and further  practises distributive  justice which  preempts the need  for adjournment because of absence of counsel and, lastly, sets a limit on the total fee payable for government work executed.      Section 2(7)  of the  Code of  Civil Procedure being an inclusive  definition   allows  any   number  of  Government pleaders. It vests no sole control on one Government pleader over others  and Government  is  perfectly  free  to  put  a particular Government pleader in charge of particular cases. Each one  of them  is a  Government Pleader  and may  depute other lawyers  and exercise control over such surrogates. In this view,  there  is  no  error  in  the  summary  despatch deservedly given  by the  High Court  to the  writ  petition whose main merit was daring novelty.      We  must  state  that  the  learned  Attorney  General, appearing for the State, was critical of a lawyer asking for or clinging  to briefs  and counsel  for the  petitioner  (a former High  Court Chief  Justice) rightly  slurred over the pecuniary part  of the petition and veneered his submissions with the law of the high office of government pleadership.      We  fully   appreciate  the  perspective  presented  by counsel. But  before we  come to  that, let  it  be  bluntly stated that  if Government  does an act offending the public office filled  by a  Government  pleader  what  becomes  the incumbent in  the land of Gandhi is a dignified renunciation of office,  not a  chase for  the lost  briefs  through  the ’writ’ route.  Moreover, the  legal position  is  plain.  As explained  earlier,   a  bunch  of  Government  pleaders  is perfectly permissible  consistently with  Section  2(7)  and Order 27  rule (4)  Civil Procedure  Code. Nor  do the Bihar rules regarding  government pleaders  help. They  are purely administrative prescriptions  and serve  as  guidelines  and cannot found a legal right, apart from the fact that they do not contradict  Government’s power  to appoint more than one Government Pleader.  Allocation of  work or control inter se is an  internal arrangement and we see no error even in that behaviour. Not to have provided more government counsel when the volume of litigation demanded it, would have clogged the dockets in  Court and  helped one  pleader to corner all the briefs  without   reference  to   expeditious  or  efficient disposals.      Be that  as  it  may,  one  of  the  major  streams  of

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litigation in  which government finds itself entangled flows from land  acquisition. ’The  States’ developmental projects which necessarily  must be  large,  involve  acquisition  of lands on a large scale. Bihar is no exception. Since com- 765 pensation claims  come in  considerable  number  before  the Civil courts,  several lawyers  have to  be engaged  by  the State for expeditious attention to its court litigation. The State, appreciating  this need  and with  a view to help the court liquidate  the docket  explosion, appointed  more than one government  pleader for every District, depending on the case  flow.   Thus,  Government   Pleaders   and   Assistant Government   Pleaders    were   appointed    according    to administrative rules  of the State. Each one is a Government Pleader under Sec. 2(7), Code of Civil Procedure.      It is  heartening to  notice that  the Bihar Government appoints these  lawyers after consultation with the District Judge. It  is in  the best  interest of  the State  that  it should  engage   competent  lawyers   without  hunting   for political partisans regardless of capability. Public offices and Government  Pleadership  is  one-shall  not  succumb  to Tammany Hall  or subtler  spoils system, if purity in public office is a desideratum. After all, the State is expected to fight and  win its  cases and  sheer patronage  is misuse of power. One  effective method  of achieving this object is to act on the advice of the District Judge regarding the choice of Government  pleaders. When  there were  several  thousand cases in  the Patna  courts and  hundreds of  cases before a plurality of tribunals, it was but right that Government did not sacrifice  the speedy conduct of cases by not appointing a number  of pleaders  on its  behalf, for  the sake  of the lucrative practice  of a  single government  Pleader. It  is inconceivable how he would have discharged his duties to the court and  to his  client if  this crowd of land acquisition cases were posted in several courts more or less at the same time. Adjournment  to suit  advocates’ convenience becomes a bane when  it is  used only  for augmentation  of  counsel’s income, resisting  democratisation and  distributial justice within the profession. These principles make poor appeal to, those who count, which is a pity.      Coming to  the larger  submission of  counsel  for  the petitioner, we  do recognise  its importance  in our  era of infiltration of  politicking  even  in  forbidden  areas.  A Government pleader  is more than an advocate for a litigant. He holds  a public  office.  We  recall  with  approval  the observations a  Division Bench of the Madras High Court made in Ramachandran  v. Alagiriswami  and regard the view there, expressed about  a Government  Pleader’s office,  as broadly correct even in the Bihar set-up.           " ....  the  duties  of  the  Government  Pleader,      Madras are  duties of  a  public  nature.  Besides,  as      already explained  the public  are genuinely  concerned      with the manner in 766      which  a   Government  Pleader  discharges  his  duties      because, if  he handles  his  cases  badly,  they  have      ultimately to  foot the  bill. The  Rajasthan case does      not take into account all the aspects of the matter.           (36) The  learned Advocate General argued that the      Government Pleader,  Madras is  only an  agent  of  the      Government, that  his duties are only to the Government      who are  his principles and that he owes no duty to the      public at  all and that for that reason he would not be      the holder of a Public office.           (37) It  is difficult  to accept  this  view.  The

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    contention of  the learned  Advocate General  may  have      been less  untenable if  the duties  of the  Government      Pleader were merely to conduct in courts cases to which      Government are a party. But, as the rules stand, he has      a number of other duties to discharge. Besides, even if      his  only  duty  is  the  conduct  of  cases  in  which      Government have been impleaded, still as explained more      than once  before the  public  are  interested  in  the      manner in which he discharges his duties.      ......              ......              ......           (90) I am clearly of opinion that having regard to      the fact  that the  Government Pleader of this court is      employed by  the State  on remuneration  paid from  the      public exchequer  and  having  regard  to  the  various      functions and  duties to be performed by him in the due      exercise of  that office,  most  of  which  are  of  an      independent and  responsible character, the office must      be held to be a public office within the scope of a quo      warranto proceeding.           I consider that the most useful test to be applied      to determine the question is that laid down by Erle, J.      in (1851)  17 QB 149. The three criteria are, source of      the office,  the tenure  and the duties. I have applied      that test  and I am of opinion that the conclusion that      the office is a public office is irresistible".      In this  view, ordering  about a  Government Pleader is obnoxious but  nothing savouring of such conduct is made out although we  must enter  a caveat that Governments under our Constitution shall not play with Law Offices on political or other  impertinent  considerations  as  it  may  affect  the legality of  the action  and subvert the rule of law itself. After all,  a Government  Pleader and,  in  a  sense,  every member of  the legal  profession, has a higher dedication to the people. 767      We dismiss  the special  leave petition  but with a sad tag, which  is the  message of  this martyrdom.  Professions shall  not   be   concealed   conspiracies   with   ’effete, aristocratic, protective coloration’, which at the same time enables one  to make  a considerable  Sum of  money  without sullying his  hands with  a "job" or "trade". The remarks of Tabachnik, in  ’Professions for  the People’,  about English professions of the eighteenth century smell fresh:           "One could  carry on  commerce by  sleight of hand      while donning,  the vestments of professional altruism.      To boot,  one could  also  work  without  appearing  to      derive in come directly from it. As Reader explains:           The whole  subject of  payment...... seems to have      caused professional  men acute  embarrassment,  marking      them take refuge in elaborate concealment, fiction, and      artifice. The  root of the matter appears to lie in the      feeling that  it was  not fitting  for one gentleman to      pay another  for services rendered, particularly if the      money passed  directly. Hence,  the  device  of  paying      barrister’s fee  to the  attorney, not to the barrister      himself.  Hence,  also  the  convention  that  in  many      professional dealings  the matter  of the fee was never      openly talked  about, which  could be  very convenient,      since it  precluded the  client or patient from arguing      about  whatever   sum  his   advisor  might  eventually      indicate as a fitting honorarium (1966 p 37).           The established professions-the law, medicine, and      the clergy-held  (or  continued  to  hold)  estate-like      positions:-           The three  ’liberal professions’ of the eighteenth

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    century were  the nucleus  about which the professional      class of  the nineteenth  century was  to form. We have      seen that  they were  united by  the bond  of classical      education: that  their broad  and ill-defined functions      covered much that later would crystallize out into new,      specialised,  occupations:   that   each,   ultimately,      derived much of its standing with the established order      in the State. (1966, p. 23)."      The time has come to examine the quality of the product or service,  control the  price, floor  to ceiling,  enforce commitment to  the people  who are  the third world clients, and practise internal distributive justice oriented on basic social justice  so that  the profession may flourish without wholly  hitching   the  calling  to  the  star  of  material amassment immunised  by law  from the  liabilities of  other occupations. We do not suggest that lawyering in India needs a National 768 Commission right  now as in England and elsewhere, nor do we subscribe to  the U.S.  situation on which the President and the Chief Justice have pronounced. We quote-           "We are  over  lawyered.......  Lawyers  of  great      influence and  prestige led  the  fight  against  civil      rights  and   economic  justice..   They  have   fought      innovations even  in their own profession... Lawyers as      a profession  have  resisted  both  social  change  and      economic reform."      (President Carter, May, 1978)           "We may well be on our way to a society overrun by      hordes of  lawyers, hungry  as locusts, and brigades of      justices in numbers, never before contemplated."      (U.S. Chief Justice Burger)      Law Reform  includes Lawyer  Reform, an issue which the petitioner has  unwittingly laid  bare. After  all, as Prof. Connel states-           "Criticism of relatively conservative institutions      in  times   of  social  questioning  is  hardly  a  new      phenomenon."      (Australian Law Journal, Vol. 51, p. 351)      This long  judicial journey  vindicates the  Short High Court order- Dismissed. P.B.R.    Petition dismissed. 769