The state government has submitted before the Bombay High Court in affidavit that lawyers cannot allege discrimination if court staff or staff of the advocate general's office or the staff of government pleader's office are being allowed to travel in local trains and buses.
The affidavit was filed on behalf of the State by Kishor Raje Nimbalkar, Secretary, Disaster management, Relief And Rehabilitation in a PIL filed by advocates Chirag Chanani, Vinay Kumar, and Sumit Khanna seeking declaration of services rendered by lawyers in the list of 'essential services' for ease of travel during the lockdown.
Petitioners contended that lawyers practicing in various Courts at Mumbai and suburbs are restricted from commuting by local train as their profession is not included in the list of essential services enumerated in the circular issued by the Divisional Railway Manager's office.
Asserting that the said PIL is not maintainable and tenable in law, the 19-page affidavit states-
"So far as Mumbai and MMR region is concerned, at least with effect from June 4, 2020 there are no travel restrictions in place preventing travelling in a single vehicle and following precautionary measures such as wearing masks etc. Resultantly I say that the advocates can travel by private vehicle if they either want to visit their offices or visit any court premises for attending the hearing or for the purpose of filing of matters, physical or otherwise.
I therefore say that, thus, and all the advocates can carry on their profession and there is no restriction on it, much less unreasonable restrictions and certainly not a total ban or prohibition. I say that the state government has not imposed any hindrance in carrying on the legal profession by advocates. I thus say that neither any fundamental right nor any legal right of the petitioners is being infringed so as to give rise to filing of the present petition. On this ground alone, the present petition deserves to be dismissed."
Pointing to the situation in Maharashtra with regard to the Covid-19 pandemic, Nimbalkar stated in the affidavit that local transport like buses and local trains are being allowed to ply with limited number of passengers so as to avoid any risk of overcrowding, specially in trains and subsequent spread of Covid-19.
Moreover addressing contentions made by the petitioners regarding discrimnation being caused to them as court staff and staff of the Advocate General's office and the staff of the Government Pleader's office are allowed to travel in local trains, State has responded-
"Petitioners have alleged discrimination being caused to them since the staff of Government Pleader's office, the office of Advocate General as well as staff of the High Court are being permitted to travel by local train. It is alleged that the respondents are unreasonably classifying between Government Pleaders, who themselves are lawyers who undertake private practice like the petitioners.
In this regard it is humbly submitted that the State Government has allowed the staff of the aforesaid three offices who are not themselves lawyers or advocates. It is not that Government Pleaders who are advocates and lawyers themselves are allowed to travel by local trains. In my humble submission there cannot be any comparison between the staff of the aforesaid three offices on one side and lawyers/advocates on the other side as the aforesaid classes are completely different and therefore the petitioners cannot allege discrimination by making the aforesaid allegations or otherwise "
Moreover, referring to the order dated July 10 passed by another bench in a petition with similar prayers, state reiterated what the Court had observed which was that as per the Maharashtra Essential Services Act, 2017, it is within the exclusive domain of the State Legislature to legislate as to whose services will be included into essential services.
Advocate Shyam Dewani appeared for the petitioners and sought a week's time to file a rejoinder. Court granted the request and posted the matter for hearing on July 31.
Click Here to Download Affidavit