Sri B S Yogananda Kumar Vs. The State of Karnataka - Court Judgment

SooperKanoon Citationsooperkanoon.com/1194620
CourtKarnataka High Court
Decided OnSep-04-2017
Case NumberWP 2535/2014
JudgeB.VEERAPPA
AppellantSri B S Yogananda Kumar
RespondentThe State of Karnataka
Excerpt:
1 in the high court of karnataka at bengaluru dated this the04h day of september, 2017 before the hon' ble mr. justice b. veerappa writ petition no.2535/2014(s-res) r between: sri b. s. yogananda kumar, aged49years, s/o late b.v.srinivasa, addl.government advocate, hunsur taluk, mysore district, r/at, no.46, old housing board colony, mysore road, hunsur town, mysore district-570105. ... petitioner (by sri b. s. nagaraj, advocate) and:1. the state of karnataka, represented by its secretary, department of law, parliamentary affairs and human rights, m.s.building, dr.ambedkar veedi, bangalore-560001.2. the additional secretary(adm.2) department of law, parliamentary affairs and human rights, m.s.building, dr.ambedkar veedi, bangalore-560001. 2 3. the deputy commissioner, mysore district, mysore-570001. ... respondents (by smt. shweta krishnappa, aga for r1-r3) …… this writ petition is filed under articles226and227of the constitution of india praying to quash the notification (order) dated71.2014, passed by the r-2 the additional secretary, in ref.no.law/159/lag/2011 at annexure-a. this writ petition coming on for preliminary hearing in ‘b’ group this day, the court made the following: order the petitioner who was appointed by the respondents as an additional government advocate by an order dated 16.03.2013 is before this court for a writ of certiorari to quash the impugned notification dated 07.01.2014 made in ref no.law/159/lag/2011 passed by the second respondent.2. it is the case of the petitioner that he was practicing advocate at hunsur civil court having experience of 18 years in civil and criminal cases and accordingly, the second respondent, by an order dated 16.03.2013 3 appointed him as an additional government advocate, hunsur taluk, mysuru district, for a period of three years or until further orders, whichever is earlier.3. it is the further case of the petitioner that he belongs to hindu vokkaliga community. when there was change of government in the state, at the instance of the chief minister and on the basis of the chief minister’s letter dated 18.09.2013 addressed to the law minister to appoint one swamygowda, s/o late kullegowda, who belongs to the same caste as that of the chief minister, the petitioner was removed from the post of addl. government advocate, by the impugned notification dated, 07.01.2014, produced as per annexure-a. therefore, the petitioner is before this court.4. the respondent/state government filed objections to the writ petition and contended that the very writ petition filed by the petitioner challenging the order 4 dated 07.01.2014 as per annexure-a is not maintainable, as the petitioner was appointed in terms of rule 5(1) of the karnataka law officers (appointment and conditions of service) rules, 1977 (‘1977 rules’ for short), for a period of three years or until further orders, whichever is earlier and all law officers appointed by the government shall hold the office during the pleasure of the government. the state government exercising powers under rule 5(6) of the ‘1977 rules’ passed the impugned notification and the petitioner has no right to continue for a period of three years as an addl. government advocate. therefore, sought for dismissal of the writ petition.5. i have heard the learned counsel for the parties to the lis.6. sri b.s.nagaraj, learned counsel for the petitioner contended that the impugned notification passed by the second respondent as per annexure-a is without notice 5 and an opportunity of being heard to the petitioner and therefore, the same is liable to be quashed. he further contended that the petitioner was appointed as addl. government advocate on 16.03.2013 and was removed on 07.01.2014, within a period of nine months from the date of appointment, based on the letter of the chief minister who recommended to accommodate one swamygowda, s/o kullegowda who belongs to the community to which the chief minister belongs to, and not for the benefit of the state. therefore, he sought to quash the impugned notification passed by the respondents.7. per contra, smt. shwetha krishnappa, learned addl. government advocate for respondents 1 to 3, reiterating the averments made in the statement of objections, contended that the petitioner has no right to challenge the impugned notification passed by the state government exercising powers under rule 5(6) of the 6 ‘1977 rules’. the petitioner’s appointment was made at the pleasure of the government and therefore, petitioner has no right to challenge the said order. admittedly, petitioner has not challenged the ‘1977 rules’. she further contended that the petitioner, though made allegations against the chief minister, has not produced any material document to prove the said allegation. she further contended that though the impugned notification was issued on 07.01.2014, this court has not granted any interim order staying the operation of the said order and one swamygowda was appointed as addl. government advocate, whose appointment is also not challenged by the petitioner in the present writ petition whose term of three years was also completed. therefore, she sought to dismiss the writ petition as not maintainable.8. having heard the learned counsel for the parties, it is not in dispute that the petitioner was appointed as 7 an addl. government advocate by the state government, in exercise of powers conferred under rule 26(2) of the ‘1977 rules’. subsequently, the state government, in exercise of powers conferred under rule 5(6) of the ‘1977 rules’, removed the petitioner from the said post, after following the procedure as contemplated under the ‘1977 rules’ by granting one month retainer fee.9. the provisions of rule 5(6) of the ‘1977 rules’ reads as under: “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 giving one month’s retainer in lieu of such notice).” 10. a plain reading of the above said rules makes it clear that, ‘the state government may terminate the appointment of a law officer without assigning (any 8 reason by giving one month’s notice in writing or by giving one month’s retainer in lieu of such notice)’.11. admittedly, in the present case, the state government has followed the procedure as contemplated under rule 5(6) of the ‘1977 rules’ and had given one month’s retainer fee in lieu of the notice. admittedly, the power of termination of a law officer without assigning reasons under the 1977 rules is not questioned in the present writ petition. the appointment of one swamygowda, is also not questioned and the impugned notification issued by the state government dated 07.01.2014 is in exercise of powers under rule 5(6) of the ‘1977 rules’. though the instant writ petition was filed on 17.01.2014, no interim order was granted by this court staying the impugned notification. the time spent itself and the term of appointment of swamygowda i.e., three years was also expired. virtually the relief sought for is an academic. 9 12. the division bench of this court in the case of s.r.patil vs. state of karnataka, reported in ilr2007kar4653 considering the provisions of rule 5(6) and rule 26(3) of the ‘1977 rules’, held as under: “since the relationship between the government and the government advocate is fiduciary in character and since the government advocate can hold the office only during the pleasure of the government and also in the light of the terms and conditions of appointment order, it was open to the government to terminate the appointee wider rule 5(2) r/w rule 5(6), even before the expiry of the period of appointment’.13. this court in the case of syed mudir agha vs. state of karnataka, rep. by its principal secretary and others reported in ilr2008kar1722 considering the ‘pleasure of the government’, held as under: “7. appointment at the pleasure of the government are not the same as normal or ordinary appointments. the normal or ordinary 10 principles of recruitment applicable to posts governed by chapter i of part xiv of the constitution of india would not apply to the instant appointment being an appointment at the pleasure of the government. the ordinary appointments in public service entail security of tenure which is an essential feature of such appointment. these characteristics are noticeably absent in the instant case.” 8. xxx xxx xxx the “pleasure doctrine” finds a place in several enactments of the karnataka state including the constitution of india. under article 75(2) of the constitution of india, the ministers of the central government hold office during the pleasure of the president. under article 164(1), the ministers in the state will hold office during the pleasure of the governor. similarly, under article 76(1), the president appoints attorney-general of india and in view of clause (4) of the said article, the said office is held during the pleasure of the president. the governors of the states are appointed by the president under articles 155 and 156(1), and the 11 governor holds office during the pleasure of the president”.14. admittedly, in the present case, rule 5(2) of the ‘1977 rules’ clearly depicts that “all law officers shall be appointed by the government and shall hold office during the pleasure of the government”.15. the state government, after following the procedure as contemplated under rule 5(6) of the ‘1977 rules’, has passed the impugned notification. the same is in accordance with law. the petitioner has not made out any ground to interfere with the impugned notification dated 07.01.2014 passed by the state government in exercise of the power under articles 226 and 227 of the constitution of india. accordingly, writ petition is dismissed. sd/- judge kcm
Judgment:

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE04H DAY OF SEPTEMBER, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.2535/2014(S-RES) R BETWEEN: SRI B. S. YOGANANDA KUMAR, AGED49YEARS, S/O LATE B.V.SRINIVASA, ADDL.GOVERNMENT ADVOCATE, HUNSUR TALUK, MYSORE DISTRICT, R/AT, NO.46, OLD HOUSING BOARD COLONY, MYSORE ROAD, HUNSUR TOWN, MYSORE DISTRICT-570105. ... PETITIONER (BY SRI B. S. NAGARAJ, ADVOCATE) AND:

1. THE STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LAW, PARLIAMENTARY AFFAIRS AND HUMAN RIGHTS, M.S.BUILDING, DR.AMBEDKAR VEEDI, BANGALORE-560001.

2. THE ADDITIONAL SECRETARY(ADM.2) DEPARTMENT OF LAW, PARLIAMENTARY AFFAIRS AND HUMAN RIGHTS, M.S.BUILDING, DR.AMBEDKAR VEEDI, BANGALORE-560001. 2 3. THE DEPUTY COMMISSIONER, MYSORE DISTRICT, MYSORE-570001. ... RESPONDENTS (BY SMT. SHWETA KRISHNAPPA, AGA FOR R1-R3) …… THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION (ORDER

) DATED71.2014, PASSED BY THE R-2 THE ADDITIONAL SECRETARY, IN REF.NO.LAW/159/LAG/2011 AT ANNEXURE-A. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING: ORDER

The petitioner who was appointed by the respondents as an Additional Government Advocate by an order dated 16.03.2013 is before this Court for a writ of certiorari to quash the impugned notification dated 07.01.2014 made in Ref No.LAW/159/LAG/2011 passed by the second respondent.

2. It is the case of the petitioner that he was practicing advocate at Hunsur Civil Court having experience of 18 years in civil and criminal cases and accordingly, the second respondent, by an order dated 16.03.2013 3 appointed him as an Additional Government Advocate, Hunsur Taluk, Mysuru District, for a period of three years or until further orders, whichever is earlier.

3. It is the further case of the petitioner that he belongs to Hindu Vokkaliga community. When there was change of Government in the State, at the instance of the Chief Minister and on the basis of the Chief Minister’s letter dated 18.09.2013 addressed to the Law Minister to appoint one Swamygowda, S/o late Kullegowda, who belongs to the same caste as that of the Chief Minister, the petitioner was removed from the post of Addl. Government Advocate, by the impugned notification dated, 07.01.2014, produced as per Annexure-A. Therefore, the petitioner is before this Court.

4. The respondent/State Government filed objections to the writ petition and contended that the very writ petition filed by the petitioner challenging the order 4 dated 07.01.2014 as per Annexure-A is not maintainable, as the petitioner was appointed in terms of Rule 5(1) of The Karnataka Law Officers (Appointment and Conditions of Service) Rules, 1977 (‘1977 Rules’ for short), for a period of three years or until further orders, whichever is earlier and all Law Officers appointed by the Government shall hold the office during the pleasure of the Government. The State Government exercising powers under Rule 5(6) of the ‘1977 Rules’ passed the impugned notification and the petitioner has no right to continue for a period of three years as an Addl. Government Advocate. Therefore, sought for dismissal of the writ petition.

5. I have heard the learned counsel for the parties to the lis.

6. Sri B.S.Nagaraj, learned counsel for the petitioner contended that the impugned notification passed by the second respondent as per Annexure-A is without notice 5 and an opportunity of being heard to the petitioner and therefore, the same is liable to be quashed. He further contended that the petitioner was appointed as Addl. Government Advocate on 16.03.2013 and was removed on 07.01.2014, within a period of nine months from the date of appointment, based on the letter of the Chief Minister who recommended to accommodate one Swamygowda, S/o Kullegowda who belongs to the community to which the Chief Minister belongs to, and not for the benefit of the State. Therefore, he sought to quash the impugned notification passed by the respondents.

7. Per contra, Smt. Shwetha Krishnappa, learned Addl. Government Advocate for respondents 1 to 3, reiterating the averments made in the statement of objections, contended that the petitioner has no right to challenge the impugned notification passed by the State Government exercising powers under Rule 5(6) of the 6 ‘1977 Rules’. The petitioner’s appointment was made at the pleasure of the Government and therefore, petitioner has no right to challenge the said order. Admittedly, petitioner has not challenged the ‘1977 Rules’. She further contended that the petitioner, though made allegations against the Chief Minister, has not produced any material document to prove the said allegation. She further contended that though the impugned notification was issued on 07.01.2014, this Court has not granted any interim order staying the operation of the said order and one Swamygowda was appointed as Addl. Government Advocate, whose appointment is also not challenged by the petitioner in the present writ petition whose term of three years was also completed. Therefore, she sought to dismiss the writ petition as not maintainable.

8. Having heard the learned counsel for the parties, it is not in dispute that the petitioner was appointed as 7 an Addl. Government Advocate by the State Government, in exercise of powers conferred under Rule 26(2) of the ‘1977 Rules’. Subsequently, the State Government, in exercise of powers conferred under Rule 5(6) of the ‘1977 Rules’, removed the petitioner from the said post, after following the procedure as contemplated under the ‘1977 Rules’ by granting one month retainer fee.

9. The provisions of Rule 5(6) of the ‘1977 Rules’ reads as under: “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 giving one month’s retainer in lieu of such notice).” 10. A plain reading of the above said Rules makes it clear that, ‘the State Government may terminate the appointment of a Law Officer without assigning (any 8 reason by giving one month’s notice in writing or by giving one month’s retainer in lieu of such notice)’.

11. Admittedly, in the present case, the State Government has followed the procedure as contemplated under Rule 5(6) of the ‘1977 Rules’ and had given one month’s retainer fee in lieu of the notice. Admittedly, the power of termination of a Law Officer without assigning reasons under the 1977 Rules is not questioned in the present writ petition. The appointment of one Swamygowda, is also not questioned and the impugned notification issued by the State Government dated 07.01.2014 is in exercise of powers under Rule 5(6) of the ‘1977 Rules’. Though the instant writ petition was filed on 17.01.2014, no interim order was granted by this Court staying the impugned notification. The time spent itself and the term of appointment of Swamygowda i.e., three years was also expired. Virtually the relief sought for is an academic. 9 12. The Division Bench of this Court in the case of S.R.Patil vs. State of Karnataka, reported in ILR2007KAR4653 considering the provisions of Rule 5(6) and Rule 26(3) of the ‘1977 Rules’, held as under: “Since the relationship between the Government and the Government Advocate is fiduciary in character and since the Government Advocate can hold the office only during the pleasure of the Government and also in the light of the terms and conditions of appointment order, it was open to the Government to terminate the appointee wider Rule 5(2) r/w Rule 5(6), even before the expiry of the period of appointment’.

13. This Court in the case of Syed Mudir Agha vs. State of Karnataka, Rep. by its Principal Secretary and others reported in ILR2008KAR1722 considering the ‘pleasure of the Government’, held as under: “7. Appointment at the pleasure of the Government are not the same as normal or ordinary appointments. The normal or ordinary 10 principles of recruitment applicable to posts governed by Chapter I of Part XIV of the Constitution of India would not apply to the instant appointment being an appointment at the pleasure of the Government. The ordinary appointments in public service entail security of tenure which is an essential feature of such appointment. These characteristics are noticeably absent in the instant case.” 8. xxx xxx xxx The “pleasure doctrine” finds a place in several enactments of the Karnataka State including the Constitution of India. Under Article 75(2) of the Constitution of India, the Ministers of the Central Government hold office during the pleasure of the President. Under Article 164(1), the Ministers in the State will hold office during the pleasure of the Governor. Similarly, under Article 76(1), the President appoints Attorney-General of India and in view of Clause (4) of the said Article, the said office is held during the pleasure of the President. The Governors of the States are appointed by the President under Articles 155 and 156(1), and the 11 Governor holds office during the pleasure of the President”.

14. Admittedly, in the present case, Rule 5(2) of the ‘1977 Rules’ clearly depicts that “All Law Officers shall be appointed by the Government and shall hold office during the pleasure of the Government”.

15. The State Government, after following the procedure as contemplated under Rule 5(6) of the ‘1977 Rules’, has passed the impugned notification. The same is in accordance with law. The petitioner has not made out any ground to interfere with the impugned notification dated 07.01.2014 passed by the State Government in exercise of the power under Articles 226 and 227 of the Constitution of India. Accordingly, writ petition is dismissed. Sd/- JUDGE kcm