Raghubir Singh v. State Of Rajasthan

Rajindar Sachar, J.:— The petitioner took his Bachelor of Laws Degree in 1933 and after having practised in Hardoi in U.P and Kota, jointed the Government service in the erstwhile princely State of Kota as Attendance Officer, Compulsory Education. On formation of State of Rajasthan the petitioner was absorbed as a Regional Inspector Loc-il Bodies and in the year 1962 was absorbed as an Assistant Registrar, Cooperative Societies. The petitioner retired at reaching the age of superannuation with effect from 1-7-67.

2. The Government of Rajasthan by its order dated 1-5-63 appointed the petitioner as a Government Advocate to represent the Government in the cases btfore Page: 409the Rajasthan State Cooperative Tribunal, Jaipur on a fixed monthly retainer of Rs. 400/- for a period of six months.

3. This period was later on extended from 4-5-68 to 4-5-71 and further extended to 3-5-74. The last order passed on 23-1-74 extended the period of the petitioner's appointment from 4-5-74 to 3-5-77. However on 1-3-75 the Government passed the impugned order in which it was stated that the service of the petitioner was no longer required and therefore the services were being dispensed with after giving one month's notice. The petitioner has challenged the in pugned order in the present writ petition.

4. The main contention in the writ petition and which is urged by Mr. Calla learned counsel for the petitioner very forcibly is that the petitioner held a civil post under the State of Rajasthan and as he was holding a fixed term appointment upto 3-5-77 his services could not have been terminated without holding an inquiry against him. He contended that a person who has been appointed for a fixed term is entitled to be retained till the end of that period, and relied on Dabesh Chandra Dass v. Union of India (1969 S.L.R 485) and Dr. Umrao Mai Mathur v. State of Rajasthan (1975 W.L.N 383). The further contention also is that is in the reply to the writ petiton filed by the State it is stated that the petitioner was not continued in his appointment because his work was found unsatisfactory. It was incumbent on the State to hold an inquiry and he refers me to K.N Phadais v. State of Maharashtra ((1971) 1 SCC 790 : A.I.R 1971 S.C 998) for the proportion that even in the case of a tempirary servant if a stigma is cast, holding of inquiry is necessary. The assumption underlying these arguments is undoubtedly that the petitioner hold a civil post under the State of Rajasthan and therefore was entitled to an opportunity as provided by Article 311. In my view the assumption is unwarranted. The relationship between the petitioner and the Government was that of a client and the lawyer. He was appointed to appear before the Rajasthan State Cooperative Tribunal. No doubt he was to be paid a monthly retainer but by that process the petitioner did not come to hold a civil post nor did he become a servant under the State. He continued to bj a lawyer who had been engaged by the State to appear before the Tribunal for a particular period. In State of Rajasthan v. Madanswarup (A.I.R 1960 Rajasthan 138) the plaintiff was engaged as a Government Advocate for 5 years with effect from November 1947, by Government of Bikaner. But the Government terminated hi’ seivice on 7th February 1950. This was challenged by the plaintiff, but was rejected. The Division Bench held that when a legal practtiioner has been engaged by the State for conducting its cases in the particular district or the whole State and the Government styles him as a Government Advocate hardly makes any difference to the real position of such practitioner and the precise relationship is that of a counsel and a client and he does not become a member of the civil services or holder of the civil servant's pos at any relevant time and that the contract between the two parties is entirely professional contract and did not involve the relationship of a master and a servant.

5. Similarly in B.V Chalanathi v. State of Andhra Pradesh (1970 S.L.R 192) it has been held that an Advocate who was appointed as an Additional Public Prosecutor does not hold a civil post and the relationship is that of a client and a lawyer and not that or a master and a servant. It also held that the pablic prosecutor does not hold a civil post within the meaning of Article 311 of the Constitution. It is apparent that as the petitioner does not hold a civil pjst he cannot invoke the provisions of Article 311 or insist on holding an inquiry against him under the service mles. It may be that if the petitioner is aggrieved and feels that he has been relieved earlier to the contracted period he may seek any other remedy that may be available to him; but certainly a remedy by way of a writ petition asking for being allowed to continue to represent the State as a Government Advocate before the Tribunal is not available to him in these proceedings. It would be an extraordinary situation if this Court was to force on the S ate, which is in the position of a client, the petitioner as a lawyer, because it would be a basic contradiction of this confidential relationship to force any lawyer on an unwilling client. The State has already taken the stand that it has found the work unsatisfactory and that is why it did not want to continue with the petitioner, I am not concerned with the justification or otherwise of this stand by the Scate or whether this act would amount to breach of contract, because even if it does the Page: 410remedy for that cannot be asked for by the petitioner under Article 226. Mr. Calla had however urged that in a case of breach of contract the remedy can be available under Article 226 and had referred me to D.F.O South Kheri v. Ram Snehi ((1971) 3 SCC 864 : A.I.R 1973 S.C 205). That case is clearly distinguishable because in that case the Divisional Forest Officer had passed an order against the contractor without giving him a hearing and their Lordships of the Supreme Court held that as his action was under a statute the contractor was entitled to a hearing before an order was passed against him. D.F.O South Kheri's case only lays down that writ petition would be if where the action challenged was of a public authority invested with statutory powers.

6. In Jogendra Bahadur v. Senior Supdt. of post Offices (1972 S.L.R-799) it was held that an extra departmental agent holds a civil post. I can see no relevancy of this case. In State of U.P v. Sri Bhola Nath (A.I.R 1972 All. 460) it was held that the post of Government Advocates are offices under the State and Art. 16 is applicable. But even in that case it was accepted that the relationship was that of a client and a counsel but I therefore do not see how this authority in any way helps him. One of the contention urged also was that the order giving extension was by the Governor while the impugned order has been passed by the Deputy Secretaty. There is no merit in this because it is stated in the reply that Deputy Secretary is also under the rules of business to au thenticate the order and it therefore cannot be taken that the order has not passed by the competent authority.

7. The last argument of Mr. Calla was that even if it be held that it was a contractual relationship, the petitioner is entitled to a hearing because it is the State which is relieving the petitioner from contract. The suggestion being that the State even if it enters into the contractual relationship like any other individual is bound to follow the rules of natural justice and give a hearing to a person before cancelling a contract. There is no warrant for such a provision.

8. In a case of contract the position of state is no different from that of the ordinary citizen, and no greater rights, the liabilities can be placed on State unless they flow from the contract itself. Mr. Galla lefers State of Orissa v. Binapani Dei (AIR 1967 S.C 1269). That was a case of a Government servant where age had been deteimined without giving a hearing and all that was said that even if an order is administrative in character hearing to the concerned person must be given where administrative order involves civil consequences. It has no applicability.

9. In my view therefore the petitioner has misconceived his remedy. There is no merit in the petition and the same is therefore dismissed with no order as to costs.