ORDER
D.V. Shylendra Kumar, J.
1. This writ petition has come up for orders on the application filed by the newly added respondent seeking for vacating the interim order dated 9.1.2007 which reads as under.
List this matter after ten days. Till then, learned Additional Government Advocate appearing for respondents, on instructions, submitted that the authorities would not precipitate the matter regarding continuation of the petitioners in the post held by them.
The said submission of learned AGA, as above, is placed on record.
The Court Officer is directed to issue the carbon copy of this order to learned AGA, forthwith.
2. Respondent No. 3 though was not a party to the original proceedings, has joined by seeking for impleadment by an application which came to be ordered on 30.7.2007. Though an application for vacating the interim order had been filed simultaneously, the matter was deferred by ten days for hearing on the said application after hearing learned Counsel for the parties. Though the matter had come up for orders earlier, it was adjourned on several occasions and it is taken up now.
3. I have heard Sri. Santhosh Malgowd, learned Counsel for the respondent No. 3 – applicant and Sri Ravindra Patil, learned Counsel for the petitioners.
4. Submission of Sri. Santhosh Malgowd, learned Counsel for respondent No. 3 is that the Government had issued Notification inviting applications for filling up the post of ‘Special Government Pleaders’ in many places in terms of the Notification dated 19.7.2006 [copy at Annexure – D]; that the respondent No. 3 was an applicant for the said post at several places including Jamkhandi; that the process has been gone through and while respondent No. 3 had also been interviewed and when the respondents 1 and 2 were about to make selections, petitioners have approached this Court questioning the very Notification; that in view of the interim order passed by this Court on 9.1.2007, further proceedings have been stalled and the Government is not finalizing the appointment and to the detriment of the respondent No. 3; that the earlier appointment of the petitioners were not after following procedure envisaged, but the present notification and the appointment being after giving due opportunity to all eligible persons, it should be allowed to be completed; that the interim order should be vacated.
5. Sri. Ravindra Patil, learned Counsel for the petitioners countering the submissions, submits that the Notification at Annexure – D inviting applications for filling up the post of ‘Special Government Pleaders’ at the places mentioned therein even as indicated in the preamble was as a sequel to the earlier proceedings of the Government dated 21.2.2006 [copy at Annexure – C]; that the reading of this earlier proceedings dated 21.2.2006 indicates the developments to be in the context of the persons who are functioning as ‘Special Government Pleaders’ and who had already completed six years of tenure, maximum period permitted in terms of Rule 5(4) of the Karnataka Law Officers [Appointment & Conditions of Service] Rules, 1977 [for short the Rules’]; that when the developments took place in the context of making suitable appointment in respect of ‘Special Government Pleaders’ who had already completed six years of tenure in office and the Notification was being issued as a sequel, the Commissioner and Ex-Officio Secretary to the Government, Revenue Department, UKP, Navanagar, Bagalkot, who had caused the issue of Notification under Annexure – D has gone beyond his jurisdiction and has invited applications to fill up the post even in such places where the incumbent Government Pleaders had not completed even minimum period of three years and therefore the Notification is while per se contrary to law, it is also at variance to the very proposal of the Government for filling up the post of Special Government Pleaders’ at places where the incumbent ‘Government Pleaders’ had already completed maximum period of six years and therefore the action under Annexure – D is not tenable and it is to be quashed by issue of a writ of certiorari and interim order having been passed in such circumstances there is no need for vacating the interim order.
6. Sri. Khureshi, learned Additional Government Advocate with reference to the statement of objections filed on behalf of the respondent No. 1 – State, submits that the writ petition itself is not tenable as the petitioners have no grievance and as of now are continuing as ‘Special Government Pleaders’; that if at all if their present tenure is terminated, then only they can be said to have any grievance, but even there the petitioners have no assurance of tenure of service and therefore writ petition cannot be entertained; that the Notification at Annexure-D is sustainable in law and the writ petition is to be dismissed.
7. As the scope of the writ petition is in a very narrow compass, after hearing teamed counsel for the parties, I propose to dispose of the main matter as under:
8. Writ petitioners are persons who had been appointed as ‘Special Government Headers’ and even in terms of the appointment orders at Annexures – A & B, their appointment is until further orders.
9. It is no doubt true that the procedure for appointing such ‘Special Government Pleaders’ is governed by the provisions of the Rules, but neither Rule 5(3) nor Rule 5(4) assure any minimum tenure of office to any Law Officer who is so appointed.
10. Though as understood and submitted by Sri Ravindra Paul, learned Counsel for the petitioner, it may be the understanding of the petitioners that they should be retained for a minimum period of three years and for a maximum period of six years, that is not the meaning one can read into these rules. While an upper limit of six years is placed, there is no minimum period, but may be the Government may consider retaining such persons for minimum period of three years as durable tenure of a counsel for the Government will be in the interest of the Government also, so that the counsel could get acclimatized with the functioning and that may help the performance of the counsel also.
11. Rule – 5 of the Karnataka Law Officers [Appointment & Conditions of Service] Rules, 1977 reads as under:
5. Appointment of Law Officers-
[1] No person shall be eligible for appointment,-
[i] as a Government Advocate or as the State Prosecutor or a Special Counsel unless he has been in practice as an advocate for not less than ten years;
[ii] as a High Court Government Pleader or as a District Government Pleader or as an Additional District Government Pleader unless he has been in practice as an advocate for not less than five years and as a Public Prosecutor unless he has been in practice as an advocate for not less than seven years.
[iii] as an Assistant Government Pleader unless he has been in practice as an advocate for not less than five years but if no such advocate is available for appointment, a person who has been in practice as an advocate for not less than three years may be appointed.
[2]. All law officers shall be appointed by the Government and shall hold office during the pleasure of the Government.
[3] Subject to the other provisions contained in these rules, unless otherwise ordered in the order of appointment, a person appointed as a law officer shall hold office at a time, for a term not exceeding three years, but shall be eligible for reappointment after the expiry of such term.
Provided that notwithstanding the expiry of the term a law officer, shall, unless otherwise ordered, continue in office until fresh appointment is made or for a period of twelve months whichever is earlier.
[4] No person shall ordinarily be eligible for appointment or to continue as a law officer in any one capacity continuously for a period exceeding six years.
[5] A law officer shall be liable to be removed from office at any time if he is guilty of any act or conduct which, in the opinion of the Government is contrary to these rules or is incompatible with his duties as such law officer. Decision of the Government in such cases, shall be final.
[6] Save as otherwise provided in Sub-rule (5) and subject to the provisions of Sub-rule (2) the State Government may terminate the appointment of a law officer without assigning any reason by giving one month’s notice in writing or by going one month’s retained in Hen of such notice.
[7] A law officer may resign his office by giving one months’ notice in writing to the Government.
[The Law Officer intending to resign the office shall be fully responsible for the conduct of the Government litigation during the period of notice and upto the date of his handing over charge of the office. The law officer shall make good the loss if any caused to Government due to failure on his part and shall also be liable for legal action for such failure.]
12. Even the so called minimum period which is referred to as not exceeding three years in Sub-rule (3) of Rule-5 starts with the rider that it is subject to other provisions contained in these rules and unless otherwise ordered in the order of appointment etc.,. Therefore, no minimum tenure can be read into Sub-rule (3) of Rule-5 as contended by learned Counsel for the petitioners.
13. Overall reading of the rule does not indicate any assurance of any length of tenure to any Law Officer but has expressly mentioned in Sub-rule (2) of Rule-5 that all law officers shall be appointed by the Government and shall hold office during the pleasure of the Government If the Government had taken steps to fill up the post by inviting applications and in terms of the qualifications as prescribed under Rule-5 of the rules, no exception can be taken to that course of action, particularly, as such course of action will provide equal opportunity to all eligible persons which is a mandate on the State under Article 16 of the Constitution of India Though no specific procedure appears to have been prescribed under the rules, if the Government for such appointment proposes to give equal opportunity to all eligible persons, persons who had been appointed earlier cannot make a grievance because of such action as they stand the possibility of losing their present position or their tenure being curtailed if fresh appointments are made.
14. Sri. Ravindra Patil, learned Counsel for the petitioners has placed reliance on the single Bench decision of this Court in the case of S.H. Mohan Kumar v. State of Karnataka reported in 2006 (1) KCCR 130 and a decision of the Supreme Court in the case of Kumari Shrilekha Vidyarthi and Ors. v. State of U.P. and Ors. , in support of the submission that the tenure of appointment is not only for minimum period of three years but it cannot be arbitrarily terminated.
15. I have perused the single Bench decision of this Court which was in the context of a termination of the existing appointment of a ‘Special Government Pleader’ like the petitioners. In that case, it was found that the appointment itself was for a period of three years in terms of the appointment order. In the present case, neither Annexure – A nor Annexure – B indicate that it is for the period of three years and therefore the reliance placed on the decision of this Court in S.H. Mohan Kumar’s case supra is of no avail to the petitioners.
16. In so far as reliance placed on Shrilekha’s case supra is concerned, any action found arbitrary will not be sustained. But, in the present case, I do not find any arbitrary action on the part of the respondent No. 1, but an action which is only to be in consonance with the constitutional mandate of Article 16 of the Constitution of India. Such action can never be termed as arbitrary and therefore reliance placed on this case also does not advance the case of the petitioners.
17. That leaves me with the question of the Notification at Annexure-D being inconsistent with the Notification at Annexure – C, in the sense that, the Commissioner has gone beyond the need as indicated under Annexure – C for filling up the post of Special Government Pleaders1 or Law Officers of the State who have completed the maximum tenure of six years and not for filling up other posts etc.,.
18. While it may be so that the action as proposed under Annexure – D is even beyond the contemplation under Annexure – C, but that by itself does not necessarily render Annexure-D bad in law. The proposal is to fill up the post on giving equal opportunity to all persons and when there is no tenure of the term of the Law Officer as indicated in Rule 5(2) and all Law Officers hold the office during the pleasure of the Government, just because the action under Annexure – D is to some extent inconsistent with the proposal under Annexure-C, it does not become bad in law. Be that as it may, if the Commissioner has exceeded his jurisdiction, it is for the petitioners to point out to the Government who is the ultimate authority and it is not necessary for this Court to interfere in such matters, particularly, when the proposed action under Annexure-D is one to bring the Governmental action in conformity with the mandate of Article 16 of the Constitution of India.
19. As pleaded by Sri. Santhosh Malgowd, learned Counsel for respondent No. 3, the interim order has definitely come in the way of finalization of the process of selection in terms of Annexure – D and as I do not find any merit for issuing any writ in favour of the petitioners, interim order granted by this Court on 9.1.2007 is vacated and writ petition itself is dismissed.