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P.K Kunjukrishnan Nair v. State Of Kerala And Others
Factual and Procedural Background
The petitioner was appointed Additional Government Pleader, Quilon by the State Government on 3-7-1986 for a period of three years from the date of assumption of charge. The appointment was made subject to the rules issued on 25-1-1978 (as amended) governing conditions of service, duties and remuneration. The petitioner assumed charge and joined duty on 14-7-1986. By a notice (Ext. P3) dated 13-9-1988 the State Government informed the petitioner that his appointment would stand terminated on the expiry of one month from receipt of that notice. The petitioner challenged the termination and, in the process, contended that Rule 17 of the relevant Rules is unconstitutional as violative of Articles 14 and 16 of the Constitution and void under Section 23 of the Indian Contract Act. The petition seeking relief against the termination was heard and the court delivered the opinion summarized here.
Legal Issues Presented
- Whether Rule 17 of the relevant Rules (which permits the Government to terminate the appointment of a Government Law Officer at any time before expiry of the term without assigning any reason, subject to one month's notice) is unconstitutional as violative of Article 14 of the Constitution (equality) and Article 16 (equality of opportunity in public employment).
- Whether Rule 17 is void under Section 23 of the Indian Contract Act for being contrary to public policy.
- Whether the termination communicated by Ext. P3 (one month's notice under Rule 17) is legally sustainable, and whether the petitioner is entitled to relief (including reinstatement or other remedy) on the grounds argued.
Arguments of the Parties
Petitioner's Arguments
- Rule 17 grants the Government an arbitrary power to terminate a Government Law Officer's appointment before the expiry of the term without assigning any reason, contrary to public policy and hence unconstitutional.
- The office of Government Pleader or Additional Government Pleader is an office under the State; therefore, rules governing termination must comply with Articles 14 and 16. For this proposition the petitioner relied on the Division Bench decision in Mrs. Baby George v. State of Kerala (1973 Ker LJ 923).
- The petitioner relied on three Supreme Court decisions (West Bengal State Electricity Board v. Desh Bandhu Ghosh; Central Inland Water Transport Corpn. Ltd. v. Brojo Nath; O.P. Bhandari v. Indian Tourism Development Corpn. Ltd.) which, as argued, struck down rules allowing termination-with-notice as arbitrary and violative of Article 14 (and contrary to public policy).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mrs. Baby George v. State of Kerala, 1973 Ker LJ 923 | Held that the office of Government Pleader is an office under the State for the purpose of Art.16; addressed the procedure of appointment (panel recommended by Advocate-General) and whether open advertisement is essential. | The court noted this decision recognized the office as under the State but also accepted that appointment from the Advocate-General's panel can afford sufficient guarantee against arbitrariness. The opinion relied on its distinction between appointment procedure and the present termination issue. |
| In Re An Advocate, AIR 1962 SC 1337 | Condemned an advocate's act of offering services for the office of Counsel on record as unprofessional; used to show calling for applications may be inconsistent with professional ethics. | Cited in support of the proposition that certain posts (law officers) may not appropriately be filled by open-market advertisement and applications, reinforcing that special procedure may be justified for these offices. |
| Dr. S.T. Venkkataiah Thimmaiah v. State of Mysore, AIR 1969 Mys 186 | Authority for the proposition that appointment by selection or otherwise than by calling for applications does not necessarily offend Art.16. | Used along with other decisions to support the view that selection-based appointments for law officers need not violate Art.16. |
| Kartar Singh Rai v. State of Punjab, AIR 1970 Punj 112 | Decision supporting that appointment not by open advertisement need not violate Art.16. | Referenced to show precedent for upholding selection-based appointments in sensitive posts. |
| State of Uttar Pradesh v. Bholanath Srivastava, AIR 1972 All 460 | Upheld appointment of Government Pleaders made on recommendation of the Advocate-General as not violative of Art.16. | Invoked to support the reasonableness of appointment from Advocate-General's panel and to counter petitioner's argument under Art.16. |
| West Bengal State Electricity Board v. Desh Bandhu Ghosh, (1985) 3 SCC 116 : AIR 1985 SC 722 | Struck down a regulation (Regulation 34) permitting immediate termination with payment in lieu of notice; held arbitrary, enabling discrimination and violative of Art.14. Relied on prior decisions including S.S. Muley v. J.R.D. Tata. | The court distinguished that line of authorities on the ground that those cases involved master-and-servant employment relationships, whereas the present case involves a fiduciary client-counsel relationship; accordingly, those precedents did not control the present outcome. |
| S.S. Muley v. J.R.D. Tata, 1980 Lab IC 11 (Bombay High Court) | Struck down a similar rule in the Air India Employees' Service Regulations; cited by the Supreme Court in Desh Bandhu Ghosh. | Mentioned as part of the jurisprudence relied on by petitioner but not treated as directly governing because the court distinguished the nature of the relationship in the present case. |
| Central Inland Water Transport Corpn. Ltd. v. Brojo Nath, AIR 1986 SC 1571 | Held that a rule authorising termination of service with notice was arbitrary and contrary to public policy. | Noted by the court as part of the petitioner’s relied authorities but distinguished on facts and relationship type (master-servant vs. client-counsel fiduciary relationship). |
| O.P. Bhandari v. Indian Tourism Development Corpn. Ltd., AIR 1987 SC 111 | Struck down a rule permitting termination-with-notice as violative of Art.14; court in that case did not order reinstatement. | Referred to by petitioner; the court observed the decision but treated it as distinguishable because of differences in the nature of the employment/relationship. |
| State of J. & K. v. T.N. Khosa, AIR 1974 SC 1 | Principle that classification is primarily for the legislature or the statutory authority; classifications must rest on a reasonable basis to be constitutionally valid. | Applied to support the proposition that different standards of termination may reasonably be applied to different posts depending on nature and duties; the court used it to justify classification of law officers for special treatment. |
| O.P. No. 8374 of 1984 (opinion of Sukumaran, J. referenced) | Observation that the office of a Government Pleader is one of utmost trust and confidence; the relationship differs from ordinary civil servants. | Quoted to underscore that a law officer occupies a fiduciary position and that immediate termination on notice is proper given the trust-based relationship. |
| W.A. No. 497 of 1984 (Division Bench confirming O.P. 8374/84) | Specific consideration of Rule 17 and observation that it is proper the Government have the power to terminate without assigning reasons, subject to notice. | Relied upon to reinforce the court's conclusion that Rule 17 is appropriate given the nature of a Government Pleader's duties. |
Court's Reasoning and Analysis
The court proceeded in structured steps, grounded in the distinctions that the opinion itself draws between types of employment relationships and in the authorities cited:
- Distinguishing precedent: The court acknowledged the Supreme Court decisions relied on by the petitioner (which struck down termination-with-notice rules as arbitrary in employment contexts) but distinguished them on the factual and legal basis that those cases involved a pure master-and-servant employment relationship. The court held that those precedents were therefore not directly applicable to the present case.
- Character of the office: The court emphasized that while the office of Government Pleader is an office under the State, the nature of the relationship between the State and a Government law officer is essentially that of litigant and lawyer — a fiduciary, trust-based relationship that is qualitatively different from ordinary employment. The opinion cited a Division Bench decision (Baby George) and observations made in O.P. No. 8374/84 to demonstrate that a law officer occupies a sensitive position where mutual confidence and trust are essential.
- Professional ethics and appointment procedure: The court referred to In Re An Advocate and the reasoning in Baby George to note that calling for applications for sensitive law-officer posts can be inconsistent with professional ethics; appointments from a panel recommended by the Advocate-General afford a sufficient safeguard against arbitrariness for Art.16 purposes.
- Reasonableness of classification: Relying on general principles (including the quoted passage from Willis on Constitutional Law and the Supreme Court decision in State of J. & K. v. T.N. Khosa), the court explained that classification (i.e., treating law officers differently from ordinary public servants in matters of termination) is permissible provided the classification rests on a reasonable basis tied to legitimate public interests. The court found such a reasonable basis here — namely the fiduciary nature of the client-counsel relationship and the sensitivity of the work.
- Application to Rule 17: Given the fiduciary nature of the relationship and the need for the Government to have confidence in its law officers, the court held that a rule permitting termination on reasonable notice (Rule 17) does not amount to an arbitrary denial of equal protection or opportunity under Articles 14 and 16, nor is it contrary to public policy under Section 23 of the Contract Act. The court emphasized that Rule 17 requires one month's notice, and the State is bound by the Rules to give that notice.
- Absence of stigma or mala fides: The court noted that the termination effected by Ext. P3 was a plain termination (not a dismissal with stigma) and that the petition did not disclose adequate factual material to support an allegation of mala fide political motivation. In the absence of such supporting facts, the court found no basis to invalidate the termination.
In summary, the court applied the principles distinguishing fiduciary law-officer relationships from ordinary employment, relied on prior local decisions endorsing Rule 17 for law officers, and applied constitutional classification jurisprudence to find Rule 17 reasonable and constitutionally valid in the present context.
Holding and Implications
Holding:
The Original Petition is dismissed.
Implications and direct effects:
- The termination effected by Ext. P3 (one month's notice under Rule 17) is sustained as legally valid in the circumstances of this case.
- No relief (such as reinstatement) was granted to the petitioner; the petition was dismissed and there was no order as to costs.
- The court treated Rule 17 as constitutionally permissible given the fiduciary nature of the government-lawyer relationship and did not hold that the rule created an arbitrary power in breach of Articles 14 or 16. The opinion distinguished earlier Supreme Court decisions invalidating similar termination rules in ordinary employment contexts and therefore does not purport to extend or overrule those authorities; it rests on a factual and classificatory distinction for law officers.
- No broader new precedent was announced beyond the court’s application of existing authorities and principles to the particular facts; the decision's direct effect is the dismissal of the petition and confirmation of the termination on one month's notice.
Petition dismissed.
1. Petitioner was appointed Additional Government Pleader, Quilon by the State Government on 3-7-1986 for a period of three years from the date of assumption of charge. The order makes it clear that the conditions of service, duties, remuneration etc. of the petitioner will be governed by the rules issued on 25-1-1978 as amended from time to time. He joined duty on 14-7-1986. By Ext. P3 dated 13-9-1988, State Government issued notice to him that his appointment shall stand terminated or the expiry of one month from the date of receipt of the notice. The termination is now challenged. In the process petitioner also contends that R. 17 of the Rules aforesaid is unconstitutional being violative of Arts. 14 and 16 of the Constitution and being void under S. 23 of the Contract Act.
2. Rule 17 of the Rules aforesaid reads as follows:
“Notwithstanding anything contained in these rules, the Government may terminate the appointment of any Government Law Officer, other than a Special Government Pleader or Special Public Prosecutor at any time before the expiry of the term of his appointment without assigning any reason therefor:
Provided that such termination shall not be effected unless one month's notice in writing has been given to him.”
It is in accordance with this rule that the petitioner's appointment has been terminated with one month's notice.
3. Learned counsel would contend that the power vested in the Government under R. 17 is an arbitrary power contrary to public policy and, therefore, void and unconstitutional. Learned counsel submitted that the office of the Government Pleader or an Additional Government Pleader is an office under the State and for this purpose, relied on the decision of a Division Bench of this court in Mrs. Baby George v. State of Kerala, 1973 Ker LJ 923.
4. In the above case constitutionality of the procedure adopted by the State Government in proceeding to appoint Government Pleaders in the High Court without inviting applications and based only on the panel submitted by the Advocate General was challenged as violative of Art. 16 of the Constitution. In that connection, the Division Bench held that the office of the Government Pleader is an office under the State for the purpose of Art. 16 of the Constitution. However, the court sustained the procedure adopted observing as follows:
“While selections made openly and in the full glare of publicity afford the best guarantee against arbitrariness and capriciousness of actions put through in the secrecy of an office-chamber, there may well be certain highly specialised and sensitive posts or offices selections to which may not altogether be appropriately made by the ‘open-market’ method. It is here that we have to take note too of the decision in In Re An Advocate, AIR 1962 SC 1337 where an advocate's action in offering his services for the office of Counsel on record for a State was condemned as unprofessional. That seems to rule out calling for applications in this sphere as inconsistent with the ethics of a noble and learned profession. In the light of the above principles, we are unable to endorse the broad submission of the petitioner's counsel that the right to have vacancies advertised and thereafter to make applications for the post is an essential ingredient of Art. 16(1) of the Constitution.
Judicial decisions have also taken the view that an appointment by selection, or by a process otherwise than by calling for applications, does not necessarily offend Art. 16; See Dr. S.T Venkkataiah Thimmaiah v. State of Mysore, AIR 1969 Mys 186, Dr. Kartar Singh Rai v. State of Punjab, AIR 1970 Punj 112 and The State of Uttar Pradesh v. Bholanath Srivastava, AIR 1972 All 460. In the last of these, the appointment of Government Pleaders made on the recommendation of the Advocate General was sustained as not violative of Art. 16 of the Constitution.
We think that the fact that the appointment of Government Pleader is made out of a panel recommended by the Advocate-General affords sufficient guarantee against arbitrariness, and the Violation of Art. 16 of the Constitution.”
5. Learned counsel for the petitioner placed reliance on three decisions of the Supreme Court. First of these is West Bengal State Electricity Board v. Desh Bandhu Ghosh (1985) 3 SCC 116 : (AIR 1985 SC 722). In that case Electricity Board terminated the services of an officer with immediate effect on payment of three months' salary in lieu of three months' notice on the strength of Regulation 34 of the Board's Regulations which enables such action. The Court held Regulation 34 arbitrary in nature and that it suffered from the vice of enabling discrimination, naked hire and fire rule and violative of Art. 14. The Supreme Court relied on the decision in S.S Muley v. J.R.D Tata 1980 Lab IC 11 where the Bombay High Court had struck down a similar rule in the Air India Employees' Service Regulations.
6. The next decision is that in Central Inland Water Transport Corpn. Ltd. v. Brojo Nath, AIR 1986 SC 1571. In that case also rule authorising termination of service with notice was successfully challenged and the court held that it was arbitrary and contrary to public policy. The last of decisions relied on is O.P Bhandari v. Indian Tourism Development Corpn. Ltd. AIR 1987 SC 111. A similar rule in the Indian Tourism Development Corporation (Conduct, Discipline and Appeal) Rules was struck down as violative of Art. 14 of the Constitution. But it is significant to note that though in this decision that rule was struck down it did not order reinstatement to any position.
7. It appears to me that the present case is wholly distinguishable from the above decisions. The above decisions dealt with situations where the relationship between the two parties was purely master and servant relationship. It is true that the office of the Government Pleader is an office of the State. But it cannot be said that it reflects pure master and servant relationship, assuming that it reflects any such relationship. Relationship in this case is essentially that of a litigant and a lawyer. As indicated by the Division Bench of this, Court in Baby George's case 1973, Ker LJ 923, a member of the Bar belongs to a noble and learned profession. He cannot even submit an application seeking appointment of Government Pleader as that would be unprofessional. The relationship between Government and Government Pleader is qualitatively different from that between master and servant. It is essentially a position which requires mutual confidence and trust. As observed by brother Sukumaran, J. in O.P No. 8374 of 1984:
“The petitioner fills in an office as a member of the learned profession. That office is essentially one of utmost trust and confidence. And no member of the profession would cling on to a file or to a client, the moment the client is seen to show the slightest dissatisfaction about counsel's conduct. In that sense, the case is different from an ordinary probationary civil servant or persons of that stature.”
8. In W.A No. 497 of 1984, a Division Bench confirmed the judgment in O.P 8374/84. The Division Bench specifically considering R. 17 of the Rules observed:
“Rule 17 of the relevant rules provides for termination of appointment without assigning any reason. Not only that, going by the nature of the work a Government Pleader has to perform it is only proper that the Government have the power given to them under R. 17.”
9. The special features of relationship between government and law officers are sufficient to indicate that law officers cannot be treated on a par with government employees or public servants. That would justify special treatment of law officers. Is this classification justified or reasonable? It is stated in Willis on ‘Constitutional Law’ that:
“It is a matter for judicial determination but in determining the question of reasonableness the Courts must find some economic, political, or other social interest to be secured, and some relation of the classification to the objects sought to be achieved. In doing this the courts may consider matters of common knowledge, matters of common report, the history of the times, and to sustain it they will assume every state of facts which can be conceived of as existing at the time of legislation” and many different classifications of persons have been upheld as constitutional. A law applying only to one person or class of persons is constitutional if there is sufficient basis or reason for it.”
10. In State of J. & K. v. T.N Khosa, AIR 1974 SC 1, it was observed: “Classification is primarily for the legislature or for the statutory authority charged with the duty of framing the terms and conditions of service; and if looked at from the stand point of the authority making it, the classification is found to rest on a reasonable basis it has to be upheld” and “……… discrimination is the essence of classification and does violence to the constitutional guarantee of equality only if it rests on an unreasonable basis.”
11. In the very nature of things relationship between State and law officers cannot be equated to that of master and servant; it is on a higher plane, in a different context and at a different level. No doubt the office of the Government Pleader is an office under the State. But the office is one which necessitates an extraordinarily high degree of confidence on the part of the State Government and it appears to me that to compel the State Government to continue to deal with a law officer irrespective of other circumstances would be an arbitrary imposition of a service of a law officer on the Government; that may also be contrary to public policy.
12. In regard to condition of service relating to mode of termination of appointment of public servants, there could be varying standards to be applied to different posts depending on the nature of the posts and duties attached to such posts. Classification of persons holding sensitive positions in public employment in the matter of termination of service is certainly reasonable and justified by public interest. In view of the fiduciary nature of client-counsel relationship between State and law officer, a provision that the State shall be entitled to terminate the engagement of counsel on notice cannot be regarded as discriminatory or arbitrary or violative of Arts. 14 and 16 of the Constitution. An advocate is not justified in clinging on to any case, notwithstanding the indication of the client that he no longer wants the service of the counsel. The mere fact that the relationship is expressed to be salaried employment does not in any manner affect or alter the nature of the relationship. No advocate will be justified in dictating terms to the client as to the period of notice terminating the engagement. The notice, of course, shall be reasonable and the termination of the engagement shall be subject to the rights of the legal practitioner. A government law officer is not in any better position. State which has made the Rules is bound by provisions of the Rules and, therefore, obliged to give notice. Rule 17 cannot be held to be arbitrary or opposed to public policy.
13. Termination involved in Ext. P3 is a termination pure and simple. It involves no stigma. It cannot, therefore, lead to any legal grievance on the part of the petitioner. It is further argued that the action is mala fide based on political consideration. There are no adequate facts disclosed in the petition to support the case of mala fides.
14. In these circumstances, the Original Petition deserves to be and is hereby dismissed. In the circumstances, there will be no order as to costs.
Petition dismissed.
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