SUKH DEV AHLUWALIA Vs. STATE OF H.P.

JUDGEMENT

(1.) The petitioner is a practising advocate at Bilaspur. He has a standing of about thirty -three years at the Bar The Administrator of the Municipal Committee of the New Bilaspur Township offered him appointment as Municipal Advocate on monthly emoluments of Rs. 220, including Munshiana, with effect from July 10, 1980 vide Annexure PA, dated July 9, 1980, The petitioner accepted the offer and started functioning as Municipal Advocate from July 10, 1980. Be it stated that the petitioners appointment, as such, really amounted to a retainership on behalf of the Municipal Committee for conducting the cases for and against it and that the relationship between the two was not that of master and servant. The monthly emoluments of the petitioner were later on enhanced to Rs. 300 per month vide order, dated September 15, 1981, Annexure P -B. Prior thereto, the petitioner was already holding appointment as part -time Legal Adviser -cum -Lawyer for the Municipal Committee, Shri Naina Devi Ji on a monthly honorarium of Rs. 110, including Munshiana, on and with effect from June 1, 1976 vide Annexure P -C. The said appointment also was a retainership offered to and accepted by the petitioner for conducting cases for and against the said Municipal Committee and involved no employment in the traditional sense.

(2.) The State Government in the Local Self Government Department sent a communication, dated June 12, 1986 Annexure P -D, to the Adminis trator of the Municipal Committees of New Bilaspur Township and Shri Naina Devi Ji, stating that it had been "decided by the government" to engage respondents No. 3 and 4 as counsel for both those Municipal Committees and requesting that the case for fixing reasonable honorarium for them be moved for the approval of the Government. The Administrator of the New Bilaspur Township Municipal Committee vide his communication, dated July 21, 1986 Annexure P -E, pointed out to the State Government that the petitioner, who was the senior -most counsel, was engaged by the then Administrator of the Municipal Committee as a part -time legal adviser and Advocate after considering the names of different Advocates and that he had been attending to the legal work of the Municipal Committee with utmost satisfact on and no case of the Municipal Committee was lost during the period of his retainership. The Administrator stated that there was no justification to make any change in the existing arrangement and that if any junior counsel were to be appointed in his place, the Municipal Committee was likely to suffer. The State Government sent a brief reply, dated August, 23, 1986 Annexure P -F, stating that the Administrator should comply with the Government decision communicated to him earlier and send the proposal for fixing a reasonable remuneration for the Advocates whose names were suggested earlier. Further correspondence was exchanged between the Government and the Administrator seeking and making clarifications. Ultimately, on October 27, 1986 the third respondent was appointed as part -time Municipal Counsel of the Municipal Committee of New Bilaspur Township vide Annexure P -J. The petitioner has challenged the said appointment in the present petition.

(3.) The main ground of challenge to the impugned appointment is that the Administrator, who is a statutory officer, has not acted on his own judgment or in his individual discretion while revoking the existing arrangement and making the fresh appointment and that he acted at the behest or under the dictates of the State Government which had no power, authority and jurisdiction to issue a direction to the Municipal Committee through its Administrator to act accordingly. It has been expressly stated in the petition,however, that the petitioner is not very anxious to continue with the assignment/retainership" but has filed the petition in view of the fact that the manner in which the retainership was terminated and the new arrangement was forced upon the Municipal Committee through its Administrator did not disclose a "healthy trend" and it was "a reflection on the class of Advocates as a whole". In other words, the petition is in the nature of a test case. In view of the ground of challenge as aforesaid, the State Government was specifically directed to file an affidavit -in -reply tracing the source of power and the reason which had weighed in issuing the impugned directions in the public interest, if any, to the Administrator of the Municipal Committee,