VIJAY KUMAR VIMAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) These four writ applications have been preferred invoking the extraordinary writ jurisdiction of this Court under Article 226 of the Constitution of India, challenging the Bihar Law Officers (Engagement) Rules, 2017 (hereinafter referred to as "the Rules, 2017").

(2.) The petitioners are seeking a declaration that the Rules, 2017 is ultra vires to Article 14 of the Constitution of India read with Section 30 of the Advocates Act, 1960 (hereinafter referred to as the "Act"). The Rules, 2017 has been challenged on the grounds inter alia that certain provisions of the Rules, 2017 are in complete conflict with the procedures prescribed and the guidelines issued by the Hon'ble Supreme Court in the case of State of Punjab and another vs. Brijeshwar Singh Chahal & Anr., 2016 6 SCC 1, is fit to be declared void ab initio. In CWJC No.19057 of 2017 challenge is also based on the alleged violation of Section 4 of Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991 (hereinafter referred to as "the Act, 1991") as the Rules, 2017 does not provide for reservation for differentlyabled persons and for women of all categories. Submissions of the Petitioners.

(3.) Mr. Dinu Kumar, learned counsel leading the arguments assisted by Mrs. Anju Mishra, Advocate and Mrs. Sikha Roy, Advocate, has taken this Court through the various provisions of the Rules, 2017 published in Bihar Gazette (Extraordinary) dated 30th October, 2017, placed at Annexure-1 to CWJC No.16891 of 2017. Earlier in course of hearing of the writ applications when attention of this Court was drawn towards the fact that the Rules, 2017 has been framed by the Government of Bihar in exercise of its power under Article 309 of the Constitution of India taking as if the Law Officers/Government Counsel are holders of civil posts and there would be a relationship of employer and employee, this Court raised certain queries with regard to the action of the State in taking recourse to Article 309 of the Constitution of India for framing of the Rules, 2017 and it was indicated prima-facie that framing of Rules under Article 309 of the Constitution of India may lead to certain consequences, and may confer a status on the Law Officers/Government Counsel, and further with reference to the judgment of the Hon'ble Madras High Court in W.P. No. 12951 of 2017 (V. Vasanthakumar, Advocate vs. the Chief Secretary, Government of Tamil Nadu) decided on 28.04.2018 when the Government Counsel was called upon to seek instruction and address this Court as to what the State Government has to say with regard to the principles now laid down in the case of V. Vasanthakumar, Advocate, the State Government has filed a third Supplementary Counter Affidavit sworn on 15.05.2018. The statements made in Paragraph 3 of the third Supplementary Counter Affidavit filed on behalf of the State Respondent Nos.3 and 4 reads as under:- "That the present supplementary counter is being filed to answer the query made by this Hon'ble Court vide order dated 09.03.2018 as to whether the Government is willing to amend the Bihar Law Officers (Engagement) Rules, 2017 to be one under Article 162 of the Constitution of India. That it is humbly submitted that as per the advice of the learned Advocate General, Government of Bihar the notification dated 30th October, 2017, the Bihar Law Officers (Engagement) Rules, 2017 is being rectified and it has been decided to notify the Bihar Law Officers (Engagement) Rules, 2017 under proviso to Article 309 of the Constitution of India read with Article 162 of the Constitution."