Appointment of Judicial Officers to Solicitor General’s Office is not public employment, no reservations for such professional engagements: MP High Court

The High Court of Madhya Pradesh recently upheld its decision to reject a petition seeking reservations in the appointment of lawyers to the office of the Attorney General.

The Court observed that such an appointment is an engagement of a professional by the state government for a professional fee, whereas the reservations contemplated by Article 16(4) of the Constitution are limited in their application to jobs/services/public positions.

The bench made up of Judge Sheel Nagu and Justice AK Sharma concurred with the decision of the Writ Court, finding that it was in line with Article 16(4) of the Constitution of India and for MP Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994 (“Adhiniyam, 1994”). The Court cited the following reasons for reaching the said conclusion-

  • The appointment of the General Counsel or any other judicial officer within the Office of the General Counsel is purely professional in nature and said relationship does not qualify as public employment. Moreover, they are not salaried employees and assimilated to employees/officers of the public service. They are paid professional fees at a fixed rate, subject to review from time to time at the discretion of the state government.
  • The General Counsel or any other judicial officer in the General Counsel’s office does not hold any particular office since there is no civil office involved.
  • There is no employer-employee relationship between the state government and the General Counsel/Court Officer of the Office of the General Counsel.
  • The Solicitor General or any other solicitor in the Solicitor General’s Office is not subject to any Rules of Service but is governed solely by the Solicitors and Professional Ethics Act 1961 in the performance of their duties.
  • The Adhiniyam of 1994 is exclusively for public services and positions, which means a civil position under the state, while the appointments of the Advocate General or any other judicial officer in the office of the Advocate General are not not against a particular civilian position or public service.

In addition to the above, the Court noted that the term “public services and positions” as defined in Section 2(f) of the Adhiniyam, 1994 means services and positions in any office of the establishment . The Court held that the Office of the Advocate General does not fall within the scope of the term “establishment” as defined in Section 2(b) of Adhiniyam, 1994-

The meaning of the term “establishment” has been restricted to the office of the state government, which means all civilian positions created in any of the departments under the state government. The Office of the General Counsel is not a department of the state government. The Office of the General Counsel is neither created under any statutory authority nor incorporated under any law of the State and also under a university or corporation, partnership or cooperative society, in which at least 51% of the paid-up share capital is owned by the state government. The General Counsel’s Office is also not a subsidized private institution. Further, the General Counsel or General Counsel’s Office Legal Counsel can never be treated as part of the workload or paid-for-continge facility or casual appointment.

In view of the above observations, the Court considered that it saw no reason to have a different view from that of the Court of Writs. Accordingly, the decision of the Write Court was affirmed and the appeal was dismissed.

Case title: OBC ADVOCATE WELFARE ASSOCIATION v STATE OF MP AND ORS

Click here to read/download the judgment

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