The Judgment of the Court was delivered by

Jagannadha Rao, C.J:— The question arising in these two Writ Petitions relates to the stage at which, in a similar case in Shrilekha Vidyarthi v. State of Uttar Pradesh ((1991) 1 SCC 212 : AIR 1991 SC 537), the matter was left open for fresh consideration by the Government on the question of termination and appointment of Government Pleaders on individual basis.

2. The following are the facts: OP 10391 of 1991 is filed by M.A Mohammed Ashraf, Advocate-Government Pleader while OP 10826 of 1991 is filed by Thariyan Joseph, Advocate Government Pleader. Petitioner in OP 10391 of 1991 was appointed as a Government Pleader in the High Court of Kerala under an order of the Government dated 26-3-1991 for a period of three years from the date of assumption of charge. On 1-10-1991 he was served with a notice dated 30-9-1991 issued by the Secretary to the Government, Law Department which after referring to the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 (hereinafter called “the Rules”) and in particular to Rule 17 relating to termination, states that the services of the petitioner as Government Pleader have been considered by the Government to be no more necessary for them and that the said service should be terminated immediately. The notice further states that the petitioner is given one month's time in the sense that the appointment shall stand terminated on the expiry of one month from the date of receipt of Ext. P2 notice. Questioning the said notice, petitioner filed the present Writ Petition. In OP 10826 of 1991, the petitioner Mr. Thariyan Joseph was appointed as Government Pleader in the High Court of Kerala on 26-3-1991 for a period of three years from the date he would assume charge. The petitioner therein assumed charge on 3-4-1991. He too received a notice dated 30-9-1991 which after reciting the provisions of the Rules referred to above and Rule 17, proceeded to state that service of the petitioner therein was considered by the Government to be no more necessary for them and that it would stand terminated on the expiry of one month from the date of receipt of the said notice. Petitioner therein, therefore, questioned the above said notice. When the first of the Writ Petitions came up for consideration before the learned single Judge, the same was referred to a Division Bench. Thereafter, the second Writ Petition, referred to above, was directed to be posted alongwith the first Writ Petition. That is how both the writ Petitions have come up before us.

3. Sri K. Balakrishnan, Advocate appeared for the petitioner in OP 10391 of 1991, The submissions were adopted by the counsel in OP 10826 of 1991. Sri Cyriac Joseph, learned Additional Advocate General appeared for the Government. The Government filed counter in the first matter which was treated, by consent of the counsel, as counter in both the cases. At the stage when the stay petitions were taken up, counsel on both sides requested us to dispose of the two Writ Petitions on merits.

4. Though in the Writ Petitions the vires of Rule 17 was questioned and it was also stated that the impugned notice was issued by an authority inferior to the appointing authority, the said contentions were not pressed. The main thrust of the argument of learned counsel for the petitioners, Mr. K. Balakrishnan, was that the proposed termination of the service of the two petitioners as Government Pleaders under the respective individual notices was an arbitrary exercise of power under Rule 17 of the Rules and that it was not a fair and reasonable exercise of power and that it was the result of a change in the government which came into, office in June 1991, after the recent elections. It was also contended that there was no material for the respondents to show either that the services of the petitioners were no longer considered necessary or, as stated in the counter affidavit, that the government did not have confidence in the petitioners. Learned counsel for the petitioners relied mainly on the decision of the Supreme Court in Shrilekha Vidyarthi's case ((1991) 1 SCC 212 : AIR 1991 SC 537) referred to above and contended that the individual orders of proposed termination are liable to struck down as arbitrary exercise of power under Article 14 of the Constitution of India.

5. On the other hand, learned Additional Advocate General contended that the impugned orders were issued in conformity with the principles laid down in the above said decision of the Supreme Court and even if the petitioners had discharged their functions properly, there was no arbitrary exercise of power and that in any event, the government have applied its mind and that this is not a case where, as in the Supreme Court case, the government had passed an omnibus order straightaway terminating the services of the various government pleaders, that this is a case where the government had applied its mind to individual cases of various Government Pleaders. It is also pointed out that out of about 35 Government Pleaders, 15 had resigned. The Government had continued 4 of the Government Pleaders and it was only in regard to the remaining other Government Pleaders that individual notices had been issued. It is argued that the fact that some of the Government Pleaders had been continued and some others were not continued, was a clear indication that the government had applied its mind and had not acted arbitrarily. The termination orders were passed on an assessment of the individual cases of the Government Pleaders. It is also pointed out that in the Supreme Court case, the relevant rules gave a right for renewal unless something was shown against the existing incumbents, but that under the Kerala Rules, there was no right of renewal and each time it was a fresh appointment and the Government had a right under Rule 17 to terminate an appointment even within the original term of appointment. It is contended that the position of a government pleader was a position of confidence between the office-holder and the government and that the government had also considered the question of competence and issued the individual notices. It is, therefore, contended that there are no merits in the two Writ Petitions.

6. The point for consideration is whether the two individual orders of termination of the petitioners in the two Writ Petitions can be said to be unreasonable and arbitrary and violative of Article 14 of the Constitution of India in the light of the principles envisaged by the Supreme Court in Shrileka Vidyarthi's case ((1991) 1 SCC 212 : AIR 1991 SC 537).

7. Before going into the main question, it is necessary to refer to some more facts. The file produced by the Government discloses that sometime after the present government took over in June 1991, initially 15 law officers of whom eight were Senior Government Pleaders, five were Government Pleaders, one Additional Public Prosecutor and one Liaison Officer resigned and the same were forwarded by the learned Advocate General to the government on 17-6-1991 and 18-6-1991 and these resignations were accepted Later, two other officers also resigned. Out of the Government Pleaders who had resigned, government decided to reappoint four of them and in respect of others who had not resigned, government issued individual notices to them. The Note File shows that the government considered the usefulness and acknowledement and dedication to work referred to in the letter of the Advocate General dated 12-7-1991 (pages 49 to 51 of the File) in regard to four existing law officers. The government had also taken note of the relevant statutory rules. The government then took a decision in respect of other officers whose services were decided to be terminated. It was on that basis that termination notices were issued in respect of the petitioners which notices are similar to the notices issued to other officers. The notice reads as follows:

“NOTICE:—

WHEREAS the Government of Kerala have appointed Shri M.A Mohammed Ashraf as Government Pleader, High Court for a period of three years from the date of assumption of charge as per G.O (MS) No. 91/91.Law dated 26-3-1991 subject to the terms and conditions laid down in the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978;

AND WHEREAS under rule 17 of the said Rules, the Government may terminate the appointment of any Government Law Officer at any time before the expiry of the term of appointment, without assigning any reason therefore after giving one month's notice or one month's salary in lieu of such notice;

AND WHEREAS the government consider that the services of Shri M.A Mohammed Ashraf as Government Pleader, High Court is no more necessary for them;

AND WHEREAS the Government have therefore decided that appointment of the said Shri M.A Mohammed Ashraf as Government Pleader, High Court shall be terminated immediately;

NOW THEREFORE, notice is hereby given to Shri M.A Mohammed Ashraf, Government Pleader, High Court that his appointment as Government Pleader, High Court shall stand terminated on the expiry of one month from the date of receipt of this notice.”

8. In the counter affidavit filed by the government sworn to by the Deputy Secretary to the Government, Law Department, it is further clarified that the government decided to terminate the appointment of the petitioners.

“Since the Government do not require his services as Government Pleader any more as the Government do not have the same confidence and trust which they should have in the Lawyer of the State Government. Even assuming that the petitioner was discharging his functions properly and efficiently and that there was no room for any complaint against him regarding his conduct of Government cases, it is open to the Government to terminate his appointment and to appoint persons who are sufficiently competent and in whom Government have sufficient trust and confidence.”

9. It is further clarified in paragraph 9 of the counter that there is no enbloc termination of officer that individual cases have been examined, that the power of termination has been exercised bonafide to subserve public good and terminations were not intended to appoint advocates who were supporters of the government. There is no fraudulent or colourable exercise of powers. The same averments were repeated in paragraphs 22 and 23 of the counter affidavit. It is further stated in paragraph 24 that the decision to terminate the appointment of the petitioners was taken by the Council of Ministers.

10. From the aforesaid facts available from the Note File, the order of termination and the counter affidavit, it appears to us that while a large number of law officers resigned after the change in the Government in June 1991, certain other law officers did not resign and it was in respect of those Government Pleaders that termination orders have been issued. It is also revealed that four of the Government Pleaders who were functioning before June 1991 have been continued. The government also had the benefit of the letter of the Advocate General in regard to the continuance of some Government Pleaders. It appears that so far as the Government Pleaders who were retained, their usefulness and acknowledgement and dedication to work was brought to the notice of the government. It also appears that the government thought that services of the other Government Pleaders whose services were terminated were no longer necessary for the government and that they did not have confidence in them and also that the government wanted to appoint persons who, according to them, were sufficiently competent and in whom the government had “sufficient trust and confidence”.

11. The question that is to be considered now is whether the above said reasons which were taken into account in respect of each of the law officers whose services were terminated, should be considered to be arbitrary and should be struck down applying the principles laid dawn in Shrilekha Vidyarthi's case ((1991) 1 SCC 212 : AIR 1991 SC 537).

12. It is necessary, at this juncture, to examine the facts in Shrilekha Vidyarthi's case. In that case, the Government of State of Uttar Pradesh passed a “general circular” dated 6-2-1990 terminating all existing appointments of Government Counsel in the districts, with effect from 28-2-1990. The circular was issued by the Joint Legal Remembrancer, Government of Uttar Pradesh which merely stated as follows;

“I have been directed to inform you on the subject mentioned above that the Administration has taken a decision to extend the tenure of all the Government Counsel, who are presently working, till 28th February 1990 only and to immediately receive new panels from the District Magistrate for new appointments in their places.”

13. The above order was communicated to all the District Magistrates in the State of Uttar Pradesh. Various other directions were given for calling fresh applications and for preparation of panels. No other reasons were given by the government and, in fact, they relied upon clause (3) of para 7.06 of the Legal Remembancer Manual, 1975 which permitted termination at any time “without assigning any cause”.

14. The Supreme Court observed as follows (at page 546):

“The non-assigning of reasons or the non-communication thereof may be based on public policy, but termination of an appointment without the existence of any cogent reason in furtherance of the object for which the power is given would be arbitrary and, therefore, against public policy…………It does not mean that the appointment is at the sweet will of the government which can be terminated at any time, even without the existence of any cogent reason during the subsistence of the term.”

(emphasis supplied)

15. After referring to various decisions under Article 14 of the Constitution of India and to the applicability of the said Article to invalidate violation of contractual rights exercised by the State or public authorities and after referring to the scope of judicial review, the Supreme Court observed (at page 553):

“That there is a presumption of validity of the State action and the burden is on the person who alleges violation of Art. 14 to prove the assertion. However, were no plausible reason or principle is indicated nor is it discernible and the impugned State action, therefore, appears to be ex facie arbitrary, the initial burden to prove the arbitrariness is discharged shifting onus on the State to justify its action as fair and reasonable. If the State is unable to produce-material to justify its action as fair and reasonable, the burden on the person alleging arbitrariniss must be held to be discharged.”

(emphasis supplied)

16. The Supreme Court then made very important observations which we also have to be kept in mind:

“The wisdom of the policy or the lack of it or the desirability of a better alternative is not within the permissible scope of judicial review in such cases. It is not for the Courts to recast the policy or to substitute it with another which is considered to be more appropriate, once the attack on the ground of arbitrariness is successfully repelled by showing that the act which was done, was fair and reasonable in the facts and circumstances of the case.”

(emphasis supplied)

17. Having laid down the above said principles, the Supreme Court then considered the facts of the case at hand (page 555) and noticed that the initial burden on the petitioner in that case had been discharged by showing that there was “no discernible principle” for the impugned action at the district level throughout the State of Uttar Pradesh since—

“there is nothing in the circular to indicate that such a sweeping action for all districts throughout the State was necessary which made it reasonable to change all Government Counsel in the districts throughout the State, even those whose tenure in office had not expired. Such a drastic action could be justified only on the basis of some extraordinary ground equally applicable to all Government counsel in the districts through the State which is reasonable. No such reason appears in the circular.”

(emphasis supplied)

18. The Supreme Court then went to the question whether the en bloc change was on account of the reasons stated in the circular. They were of the view that the arbitrariness was writ large in the absence of any reason whatsoever in the circular. They again pointed out (at page 556):

“Non-application of mind to individual cases before issuing a general circular terminating all such appointments throughout the State of U.P is itself eloquent, of the arbitrariness writ large on the face of the circular.”

(emphasis supplied)

19. The Supreme Court, therefore, quashed the circular and the termination. The final direction given by the Supreme Court (at page 557) is also important:

“In short, the status quo ante as on 28-2-1990, on which date the impugned circular dated 6-2-1990 was made effective, will be restored and be maintained till change in any appointment is found necessary and is made in the manner prescribed”.

(emphasis supplied)

20. From, the aforesaid judgment of the Supreme Court, the following principles, in so far as they are relevant to the present context, can be gathered. (1) If the termination of the service of all the Government Pleaders is on the basis of an omnibus order which did not contain any reason, then whatever might be the policy in not assigning any reason or in not communicating any reasons, there must exist some cogent reasons for the termination. (2) There is a presumption in favour of the validity of State action and therefore the burden is on the person who alleges violation of Article 14 of the Constitution of India to prove his assertion. (3) However, where no plausible reason or principle is indicated, nor is it discernible, the impugned State action will be ex facie arbitrary and in such cases, the initial burden gets discharged, shifting the onus on the State to justify that its action is fair and reasonable. (4) If the State is unable to produce any ‘material’ to justify its action as being fair and reasonable, the burden resting on the persons alleging arbitrariness must fee held to, be discharged. (5) In the case of an omnibus order of termination applicable to alt the officers, such a drastic action of termination can be justified only on some extraordinary ground applicable to all the officers. (6) Non-application of mind to individual cases before issuing a circular terminating all appointments, is itself eloquent of the arbitrariness writ large on the face of any omnibus order of termination containing no reason. (7) If, however, it is shown by the State that the termination was fair and reasonable in the facts and circumstances of a case, the ground of arbitrariness can be repelled and in such a case, the wisdom of the policy or the lack of it or the desirability of a better alternative is not within the permissible scope of judicial review. It is not for the Courts to recast the policy or to substitute it with another which the Court considers more appropriate. (8) Where, the appointment of a Government Pleader is to be ordinarily renewed, unless something is shown against him, and a procedure is laid down for that purpose, the Government has, of course, to follow such a procedure.

21. Therefore, Shrilekha Vidyarthi's case is to be treated as a case where, on account of a single omnibus order of termination assigning no reasons and on account of no other good reasons being otherwise assigned, the order was treated as ex facie arbitrary or one where arbitrariness was writ large, and the burden held shifted immediately to the State and remained undischarged inasmuch as no valid reasons were given or existed. That case was again not a case of the Government passing individual termination orders, applying the mind to each case separately.

22. In our view, the aforesaid judgment of the Supreme Court is clearly distinguishable on facts. In the case before us, there is no omnibus order of termination applicable to all officers. Out of a large number of Government Pleaders, some resigned, some were continued (by way of fresh appointment orders) and the services of the others were terminated. The continuance of some officers is based on a letter of the Advocate General. The termination of each of the others is stated to be based on a decision of the Council of Ministers that their services are, in fact, not necessary, and because the Government thought that the office, which is position of trust and confidence, was not to be held by them Government, it is stated, wanted to appoint persons in whom it had sufficient confidence and who, according to the Government, had sufficient competence. The case before us is not a case where there is ex facie arbitrariness and there is no question of the burden straightaway being shifted to the State. Even assuming that the burden shifted to the State at some stage, it has, in our view, been sufficiently discharged by the State by assigning various plausible reasons based on Government's policy. Review of the wisdom of such a policy or the lack of it or the desirability of a better alternative is not within the permissible scope of judicial review:

23. While the Supreme Court in Shrilekha Vidyarthi's has stated in what circumstances orders of termination of services of Government Pleaders can be treated as ex facie arbitrary, decisions of this Court have laid down guidelines as to when such termination can be treated as being for good-reasons. We shall now refer to them. It has been stated that a member of the Bar, belongs to a noble and learned profession, and he cannot even submit an application seeking appointment as Government Pleader. The relationship between Government and its counsels is qualitatively different from that between master and servant. It is essentially a position which requires mutual confidence and trust: Mrs. Baby George v. State of Kerala, 1973 K.L.J 923. As such, no member of the profession would (or should) cling on to a file or a client, the moment the client is seen to show the slightets dissatisfaction about counsel's conduct (or services): T.D Rajalakshmi v. State of Kerala. O.P No. 8374 of 1984-F dated 8-10-1984. Going by the rationale of the work which a Government Pleader has to perform, it is (perhaps) only proper that the Government have the power given to them to terminate the services without “assigning” any reason: T.D Rajalakshmi v. State of Kerala, (D.B), W.A No. 497 of 1984 dated 20-11-1984, which, we regard, is to be subject to the condition that valid reasons, in fact otherwise exist, or are discernible, though not actually “assigned” in the order of termination. The relationship being fiduciary is on a higher plane, in a different context and at a different level. Though it may be an office under the State, it is one which necessitates an extraordinary degree of confidence on the part of the State. To compel the State 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 and may also be contrary to public policy: Kunjukrishnan Nair v. State of Kerala. 1988 (2) K.L.T 1015. A lawyer has to be a person in whom the Government has confidence: P.K Kunjukrishnan Nair v. State of Kerala, (DB). W.A No. 240 of 1989 dated 26-6-1989. We shall, therefore, have to judge the impugned notices in the light of the above principles. The reason ‘assigned’ by the Government in the individual notices is that the services of the particular Government. Pleader are considered no longer ‘necessary’. The file produced before us and the counter affidavit show that other reasons, do ‘exist’ or are ‘discernible’. They are that the Government does not have ‘sufficient confidence’ in these Government Pleaders. The Government wants to appoint persons in whom they have ‘sufficient confidence’, and who, according to them are ‘sufficiently competent’. They have, in our opinion, examined individual cases. They have also considered the recommendation of the learned Advocate General as to who should be continued or reappointed. ??? being not cases of an omnibus order where no reasons are either ??? and not being cases where no reasons ‘exist’ or are ‘discernible’, but and ??? where individual notices are given ‘assigning some valid reasons, being such as other reasons do ‘exist’ and are discernible, such reasons ??? with principles laid down by this Court in various rulings, the impugned notices must be held to be not arbitrary and not offending Article 14 of the Constitution of India.

24. The Original Petitions are, therefore, dismissed, but without costs.