Relationship Between The State And The Assistant Government Pleader Is That Of A Lawyer And Client And Not Of Master And Servant: SC [Read Judgment]
‘Even if some remuneration is attached to the office, he cannot be treated to be under the service of the State Government. The aspects which are essential for establishing a relationship of master and servant are absent.’
The Supreme Court in State Election Commissioner, Bihar Patna vs. Janakdhari Prasad, has upheld a Patna High Court judgment that had held that the engagement of an advocate as an Assistant Government Pleader is a professional engagement and the relationship between the State and that of the Assistant Government Pleader is that of a lawyer and client and not of Master and Servant.
Janakdhari Prasad, a member elected to Panchayath, was disqualified by the State Election commission on the ground that he was holding a post of Assistant Government Pleader under the State Government and was receiving fees for the cases conducted by him from the Government and hence, he would be deemed to be in service of the State.
The Election Commission’s order was set aside by the Patna High Court which differentiated between the nature of appointment of an Assistant Government Pleader from that of a Government Pleader. Following were the reasons mentioned by the High Court to hold that Assistant Government Pleader cannot be said to be in service of the State Government so as to bring him within the mischief of Section 139(l)(c) of the Act.
- So far as the Assistant Government Pleader is concerned, he is appointed to assist the Government Pleader and for the professional work rendered, he is paid remuneration but not paid any retainer fee.
- The Assistant Government Pleader is basically an Advocate on the roll of the State Bar Council and besides giving professional advice to other litigants by virtue of his/her engagement by the State Government, he/she also advises and represents the State Government in Courts of Law.
- The appointment of the Government Pleader is governed by the executive instruction which is a tenure appointment and he remains a legal practitioner for all purpose and intent
- The engagement of an advocate as an Assistant Government Pleader is a professional engagement and the relationship between the State and that of the Assistant Government Pleader is that of a lawyer and client and not of Master and Servant.
- There is neither minimum or maximum age limit for engagement of a person as an Assistant Government Pleader nor there is any age of retirement.
- Assistant Government Pleader is paid fees for the professional work done by him and his remuneration is not fixed in a particular timescale.
- No Discipline Rules govern his conduct and he is bound by same Code of Conduct as any other lawyer.
The Division bench had concurred with the views of the single bench and had dismissed Election commission’s appeal.
No Master-Servant Relationship
The bench headed by the Chief Justice of India Dipak Misra, reiterating the observations made by Constitution Bench in State of Assam and others v. Kanak Chandra Dutta, explained what constitutes service.
It said: “There is a relationship of master and servant between the State and a person holding a post under it. The existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post.”
The bench referred to the judgment in Kumari Shrilekha Vidyarthi and others v. State of U.P. and observed that in the said case it had emphasized on the concept of public element attached to the office or post of Government Pleader and it has not expressed the opinion that they are under the Government service.
“Be that as it may, as has been held by the learned Single Judge and rightly so, there is no master-servant relationship and the respondent was not amenable to any disciplinary proceeding. He has correctly expressed the view that the conduct of the advocate is subject to the discipline of the Bar Council. As we notice, there is nothing on record to show that he was getting any remuneration. Even if some remuneration is attached to the office, he cannot be treated to be under the service of the State Government. The aspects which are essential for establishing a relationship of master and servant are absent. Therefore, the returned candidate could not have been treated to be in service under the State Government.” the bench added, dismissing the appeal.Read the Judgment Here