Partly allowed

Mahadeo Ramkishan Andhale v. the State of Maharashtra and Others

Bombay HC6 Aug 2013PIL/45/2013

Case brief

AI extract

What is this about?

The High Court examined a PIL challenging the failure to apply reservation for SC/ST/OBC candidates in Law Officer appointments. The Court rejected the reservation plea but directed the State to finalize appointments within six weeks to ensure delay does not raise fairness issues.

What did the court decide?

The plea for reservation was rejected; the State Government directed to issue appointment orders for Law Officers at Aurangabad Bench within six weeks.

Mahadeo Ramkishan Andhale Vs the State of Maharashtra… — Service and Employment | Bombay HC (2013)

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P.I.L. 45.13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

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PUBLIC INTEREST LITIGATION NO. 45 OF 2013

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Mahadeo S/o Ramkishan Andhale
Age : 59 years, Occ : Social Worker
& practicing Advocate, R/o Ambika Nagar,
Plot No.35, Lane No.5, Mukundwadi,
Aurangabad.

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...PETITIONER

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(PARTY IN PERSON)

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VERSUS

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1. The State of Maharashtra Through The Chief Secretary, Maharashtra State, Mantralaya, Mumbai – 32.

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2. The Principal Secretary, (L.R.), Law & Judiciary Department, Maharashtra State, Mantralaya, Mumbai – 32 Through A.L. Aachliya

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3. The Law Minister, Maharashtra State, Mantralaya, Mumbai – 32.

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4. Joint Secretary, Law & Judiciary Department, Old High Court Building, Adalat Road, Aurangabad.

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...RESPONDENTS

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P.I.L. 45.13

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.....

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Shri Mahadeo Ramkishan Andhale, Party-in-person.
Shri. S.V. Kurundkar, Government Pleader for
Respondents.

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.....

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CORAM: NARESH H. PATIL &
A.I.S. CHEEMA, JJ.
DATE : 6th August, 2013.

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ORAL JUDGMENT :

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1.Rule. Rule made returnable forthwith. By
consent heard finally.

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2.TheParty-in-personShriMahadeo

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Ramkishan Andhale, is a Practicing Lawyer in the

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High Court. The grievance of the petitioner is

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that while making appointments of Law Officers in

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the office of Government Pleader, High Court,

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Aurangabad, the Government of Maharashtra failed

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to consider reasonable representation from Lawyers

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belonging to Scheduled Castes, Scheduled Tribes

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and Other Backward Categories. It was submitted

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P.I.L. 45.13

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that eligible candidates are available belonging

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to these classes for consideration of the
Government for making appointments in the office
of Government Pleader as Government Pleader,
Additional Government Pleader and Assistant
Government Pleader/Additional Public Prosecutor.

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In the submission of Shri Andhale, in the year
2009 one Advocate belonging to Scheduled Caste was
appointed as Assistant Government Pleader in the

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office of Government Pleader, High Court Bench at
Aurangabad. In the present set up, none of the Law
Officers are appointed in the Government Pleader’s
office belonging to Scheduled Castes or Scheduled
Tribe. Shri Andhale made reference to Maharashtra
State Public Service (Reservation from Scheduled
Castes, Scheduled Tribes, De-notified Tribes
(Vimukta Jatis), Nomadic Tribes, Special Backward
Category and Other Backward classes) Act, 2001. It
was submitted that as the Government failed to

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consider Advocates belonging to Scheduled Castes,

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¶39

P.I.L. 45.13

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Scheduled Tribes and Other Backward classes for
providing adequate representation in the

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Government Pleader’s Office, there is resentment
in the minds of the eligible candidates as they
feel deprived of getting opportunity which could
have been made available to them. Shri Andhale
referred to judgment in the case of “Shantinath S.
Patil V/s State of Maharashtra” reported in 2010
All M.R. (Cri) 2993.

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3.By an order dated 6th May, 2013 by framing
three issues, notices were issued to Respondent
Nos. 1 and 2. After obtaining few adjournments,
the Respondent Nos. 1 and 2 filed affidavit in
reply to the Petition, which was drafted on 3rd
August, 2013 through Shri.V.L. Achliya, Principal
Secretary and Remembrancer of Legal Affairs, Law

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and Judiciary Department, Mantralaya, Mumbai. The
deponent contends that the policy of reservation
does not apply to the appointments of Law

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P.I.L. 45.13

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Officers. The said posts are tenure posts and
appointments on these posts are made for specified
period only. Reliance is placed on a reported
judgment in “Govindrao Namdeorao Shirsath V/s The
State of Maharashtra and others” (2001(3) Bom.C.R.

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543). The deponent further contends that such
posts cannot be equated with Civil Posts. It is

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the stand of the State that as these posts are not

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Civil Posts, hence there is no Constitutional
obligationtoprovidereservation.The

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appointments of the persons on these posts are
like a professional engagement, termination of
which is “at will” by either side.

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4.In respect of delay, which has occurred

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in processing the applications invited for the
appointments as Law Officers, the deponent further

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averred that as many as 254 applications were
received. The department has to deal with such
appointments all over the Maharashtra. The process

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P.I.L. 45.13

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of screening and placing it before the High Power
Committee is a cumbersome process and it took time
to make its recommendations to the Government. The
deponent further contends that the recommendation
made by the High Power Committee are already
placed for consideration of the Government. All
efforts would be taken to make appointments
pursuant to Notification dated 20.06.2012 at the
earliest, according to the deponent. It is further
contended that the Government has issued orders
dated 31.07.2013 granting continuation to the
existing Law Officers until further orders or till
appointments pursuant to the notification dated
20.06.2012 are made in order to avoid

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inconvenience.

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5.LearnedGovernmentPleader,Shri.

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Kurundkar submits that the plea raised by Shri.
Andhale for providing reservation in appointing
Law Officers in the office of Government Pleader,

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is legally not valid and reasonable. Reliance is
placed on judgment in “Govindrao Namdeorao Shirsat
V/s State of Maharashtra and others” {2001(3)
Bom.C.R. 543}. In respect of the other issues, the
learned Government Pleader submitted that though
on 7-8 occasions extensions were granted to the
Assistant Government Pleaders working in the
office of Government Pleader, High Court Bench at
Aurangabad, the State Government would finalize
the applications or would issue appointment orders
at the earliest. The learned Government Pleader
preferred not to make any statement in respect of

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any outer limit or time schedule for the
Government to issue appointment orders.

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6.We have considered the plea of petitioner
i.e. party-in-person Shri. Andhale. It is settled

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position that the Law Officers working in the
Government Pleader’s office discharge public
functions and presence of public element is

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P.I.L. 45.13 8

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attached to their office and the posts which they
hold. The applications for appointing Law Officers
in the office of Government Pleader were invited
pursuant to the Notification dated 20.06.2012 and
inspite of more than a year, the Government was
not in a position to issue appointment orders. The
Government was entitled to issue the extension
orders to the Law Officers in the office of
Government Pleader and accordingly existing Law
Officers’ term was extended number of times.

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7.Consideringresponsibleduties,

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obligations and functions which are discharged by

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the Law Officers, it is essential that their term
of appointments period / tenure must be made clear
to them. Granting of extensions for few months
intermittently for a long period of one year would
certainly not do justice to the office of
Government Pleader, High Court Bench at
Aurangabad. We make it clear that it is for the

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P.I.L. 45.13

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State Government to choose and select its Law
Officers and issue appointment orders accordingly.
As long as the Law Officers enjoy the confidence
of the State Government, they could be continued
as Law Officers. As mentioned, the Principal
Secretary in the affidavit in reply has averred
that appointments of the persons on these posts
can be terminated at will by either side.

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8.In view of the above, we are of the view

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that the first submission of the party-in-person

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seeking directions to the State to apply
reservation policy while appointing Law Officer in
the office of Government Pleader is not legally
sustainable.

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9.During the course of hearing it was

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informed that appointment of Law Officers in the
Government Pleader’s Office at Principal Seat of

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Bombay High Court, and at Nagpur Bench of High

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¶80

P.I.L. 45.13

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Court have already been made. We do not find any
convincing reason as to why the State Government

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has not finalized the appointment orders in
respect of Government Pleader’s office at
Aurangabad Bench of High Court. Considering the
responsible duties which are to be discharged by

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the Law Officers in the High Court, it would be
unreasonable not to finalize the appointment
orders for a period of one year. The delay
occurring in issuing final appointment orders to
the Law Officers may unnecessarily raise issues
concerning fairness and transparency in the
decision making process. The Law Officers
represent State in large number of matters of
vital importance contested in High Court. Their
valuable assistance contributes in effective

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dispensation of justice. The office in which the

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Law Officers are appointed and post which is held

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by them involves public element in it. Public

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perception in the working of the office

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P.I.L. 45.13 11

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of Government Pleader deserves to be taken into
consideration by the State Government. We may
refer to the case of State of U.P. and another V/s
Johri Mal {(2004)4 S.C.C. 714}, Kumari Shrilekha
Vidyarthi etc V/s State of U.P. and others (AIR
1991 SC 537) and Jayant Shivajirao Jagdale V/s
State of Maharashtra and others (2010(3) Bom.C.R.
210).

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10.In respect of the issue concerning the
statement made by the deponent that the
appointments of Law Officers would be made at the
earliest, we are of the view that the State
Government shall issue appointment orders within
specified time. Considering the over all facts and
circumstances, the plea raised in the affidavit in
reply filed, we direct the State Government to
issue appointment orders as Law Officers in the
office of Government Pleader attached to High
Court Bench at Aurangabad pursuant to the

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P.I.L. 45.13

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Notification dated 20.06.2012, within six weeks

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from today.

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11.Rule made absolute in the above terms.

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12.Parties to act authenticated copy of the
Judgment.

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sga/

Mahadeo Ramkishan Andhale v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Mahadeo Ramkishan Andhale v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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