Allahabad High Court Flags Inadequately Briefed Govt Counsels, Last-Minute Case Allocation; Seeks UP Law Dept Response
The Allahabad High Court has raised concerns about the manner in which cases are allocated to Government Counsel, observing that files are often handed over at the last minute, leaving counsel with little or no time to prepare for the matter.
A bench of Justice Vinod Diwakar said the recurring difficulty was "impeding the course of justice" and observed that merely replacing Government Counsel was not the solution.
The Court said what was required was a policy laying down a procedure to regulate the work of Law Officers, fixing accountability and ensuring sustained training.
The Court also flagged the practice of preparing counter-affidavits, observing that they are sometimes prepared by Government Counsel who do not appear in the concerned Court and are therefore unfamiliar with the proceedings and deliberations in the matter.
Against this backdrop, the Court sought a response from the Principal Secretary, Law Department, Government of Uttar Pradesh, on various aspects of the system.
Briefly put, the Bench was dealing with a writ petition in which a counter-affidavit had been filed before the Court by a Standing Counsel. However, the affidavit had been prepared by another Government Counsel who was not posted in the Court and had not appeared in the matter.
The Court noted that this was not the first occasion when a counter-affidavit had been prepared by a Government Counsel who had never been posted in the Court and never appeared in the matter.
Flagging the disconnect, the Bench observed thus:
"The counsel who prepares the counter affidavit is not aware of the deliberations that have taken place in Court, of the arguments advanced by the petitioner, or of the queries put by the Court; nor will he be present to assist the Court when the matter is next listed. Conversely, the counsel who appears and argues is unfamiliar with the record upon which the counter affidavit was prepared, and has taken no instructions from the officer concerned".
The Allahabad High Court further observed that "more often than not", the contents of a counter-affidavit sworn by a Government officer amount to a "bare denial" of the facts asserted in the petition.
The Court described the exercise as “routine and mechanical” and said it was undertaken "without application of mind". It said such a counter-affidavit "serves no purpose" and does not assist the Court in reaching the issue involved in the petition.
The Court further observed that the Government Counsel defending the State bears no accountability in such a situation, having neither prepared the affidavit nor perused the record on which it is based.
It added that when confronted with a query, such counsel may be unable to respond because the reports on which the affidavit was prepared have not been made available to him.
The Court also expressed concern about the allocation of cases to Government Counsel, noting that there was no procedure for allocating cases in advance. The Bench observed:
"The files are distributed by the Court Incharge within the Court itself, on the date of hearing and during the course of hearing, or at times shortly before the commencement of proceedings. The files being handed over on each date in Court, no time whatever is left for preparation".
The Court noted that, on most occasions, Government Counsel are only able to read the instructions and are unable to address the issue when confronted with their contents, as the material is placed before them for the first time in Court.
It further noted that a limited number of Government Counsel prepare counter-affidavits but do not ordinarily appear in Court and are consequently unfamiliar with the proceedings, deliberations and requirements of the Court. The Bench observed that the practice had continued for "more than a decade".
Importantly, it also noted that it has been submitted before it that considerations 'extraneous' to the merits govern the selection of the limited panel of advocates entrusted with the preparation of counter affidavits.
The bench, however, refrained from setting out those reasons, "in the interest of the institution and of the dignity of the office of the Law Officers". It, however, said that it was necessary that the practice itself be examined by the competent authority
The Court also referred to frequent changes of counsel and inadequate briefing, observing that cases are nominated at the last moment, counsel are inadequately briefed and records are either not made available in advance or their availability remains uncertain.
"Anyone who is present in the Court may pick the file lying on the table and stand before the Court without reaslizing his responsibility…Such a state of affairs cannot be permitted to continue", the bench remarked
The Court stressed that the office of Advocate General, Additional Advocate General, Chief Standing Counsel or Government Advocate is not a matter of "status or privilege", but "a responsibility entrusted to an advocate" to defend Government officers, particularly field officers.
Government Counsel represent the State Government and its departments and are expected to assist the Court "fairly, responsibly and effectively".
The Bench said adequate preparation, a complete record, knowledge of pleadings and previous orders, and compliance with Court directions are “basic and indispensable requirements.”
It further observed that failure to ensure proper briefing and timely availability of records consumes judicial time and causes "avoidable adjournments and delay in adjudication".
The Court said the issue required administrative examination and was not limited to the inability of an individual counsel to assist the Court on one particular date.
It concerned the State's mechanism for allocation of cases, briefing, preparation of counter-affidavits and effective conduct of Government litigation.
Therefore, the bench directed the Law Department's Principal Secretary to personally examine the matter and file a personal affidavit addressing the existing procedure for nomination and allocation of cases to Government Counsel.
The affidavit must also address the administrative considerations behind maintaining a separate panel of counsel for preparing counter-affidavits who neither appear nor conduct the cases, the rationale for changing counsel on successive dates, allocation of files by the Court In-charge during hearing, accountability and custody of files and the financial, legal and procedural aspects involved.
The Court further asked whether a procedure could be evolved to avoid Government officers having to remain at Prayagraj for preparation of counter-affidavits and whether liaison officers could be designated in departments to receive instructions and ensure that they reach Government Counsel and the Court in time through electronic means.
The Principal Secretary has been directed to appear before the Court on September 15, 2026 at 2 PM, either personally or through video conferencing.
The Court clarified that his presence was required only to assist the Court and that no adverse opinion had been formed against him or any Law Officer.
Case title - Neetu Agarwal & Another vs. State of U.P. And 5 Others