MANU/SC/0017/1979

Equivalent Citation: AIR1979SC 1871, (1979)4SC C 701, [1980]1SC R759

IN THE SUPREME COURT OF INDIA

Special Leave Petition (Civil) No. 6056 of 1977
Decided On: 20.09.1979
Appellants:Mundrika Prasad Singh
Vs.
Respondent:State of Bihar
Hon'ble Judges/Coram:
P.N. Shinghal and V.R. Krishna Iyer, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: P. Govindan Nair and S.K. Sinha, Advs
For Respondents/Defendant: L.N. Sinha, Attorney General , U.P. Singh and R.B. Mohan,
Advs.
Case Note:
Civil - Government pleader - Section 2 (7) and Order 27 Rules 4, 5B and 8-B of
CPC, 1908 - petitioner was a Government pleader claimed that he was
entitled to get all cases related to land acquisition - after appointment of nine
Assistant Government pleaders Government sent some cases to them instead
of petitioner - Court observed that such claim was against interest of public
and Government pleader being in legal profession has higher dedication to
people - such claim of petitioner was against other Assistant Government
Pleaders appointed because of increase in number of property matters -
petitioner alone will not be able to give proper justice to all matters alone -
held, claim of petitioner through special leave petition was not maintainable.

ORDER
V.R. Krishna Iyer, J.
1 . An unusual grievance of a Government Pleader, the petitioner, ventilated in a writ
petition, was given short shrift by the High Court in a laconic order, but undaunted by
this summary brevity the petitioner has pursued his case to this Court under Article 136.
In utter nudity, his case is a claim of monopoly of all government cases in the Patna
District, including lucrative land acquisition litigation, as part of the professional 'estate'
of a Government Pleader. The, prospective cash value of this heavy crop of cases 'is
estimated by him to be around one lakh of rupees and this secret is perhaps at the back
of this lawyer's litigation. Sri Govindan Nair, appearing for him, has, however, argued
that his client's claim as the sole representative of Government in courts is not a legal
cover for seeking lucre but for vindicating the inviolability of the high public office of
Government Pleader by politicking men in the Secretariat or by practitioners of
favoritism dressed in 'little brief v authority', a deeper issue in which the Bar has a
stake and the Bench must also be concerned. We wholly endorse the view that at some

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vital levels of justice, the Bench may hang limp if the Bar does not represent. Justice to
his office, not love of rupees, was urged as the respectable motivation for his persistent
litigation, Maybe.
2. The fabric of facts, on which the grievance in law rests, may be appreciated first. The
petitioner was admittedly the Government Pleader for the Patna District, 'authorised to
represent' Government in all the civil cases. During the currency of his term a plurality
of nine Assistant Government Pleaders was appointed and one of them was put in
charge of a bunch of land acquisition cases. The petitioner was requested to make over
those briefs to the new nominee. Thereupon, the petitioner challenged the power of
Government, like any other litigant, to appoint any other lawyer except under him and
never by excluding him. He went to the extent of writing to Government :
I am, therefore, unable to comply with your instruction in allowing any
Assistant Government Pleader to work in this case. I shall myself conduct this
case and I have enough time for it.
3. Government wrote back that in future he would not be given such cases. Chagrined
by this loss of income and mayhem to his monopoly he rushed to the High Court for the
universal panacea of a writ. The chemistry of Article 226 is governed by severe rules,
and the High Court declined to dispense the magic remedy. So he has sought special
leave from this Court but Article 136 has its own conditions and limitations. Sans
substantial question of law of public importance which deserves to be decided by the
Supreme Court or at least flaw in law which is fraught with manifest injustice, there is
no other open sea-same for this House of Justice. That password has not been uttered
here, despite exercises in professional martyrdom the petitioner claims to have suffered,
and so we close the door but by a speaking order since counsel's arguments have
centered of the peril to the public office of Government Pleadership with potential
menace to the administration of justice. Mystic muteness, however correct, may
sometimes mislead when plain speech may finally silence.
4 . What is the gravamen of this Government Pleader's legal grievance ? His economic
grievance , however much he may hide it, is the prospective loss of fee from land
acquisition cases which were spirited away. This 'commercial' aspect is an unhappy
temptation against which the legal profession must take care. Having due regard to the
rhetoric and reality surrounding the profession, is an avidity for briefs, because they
yield a lakh of rupees by way of fees, a clean linen to be washed in court ? What, in
essence, is the orientation of the bar ? 'Geared to the people or' a conspiracy against
the laity ?' The politicisation of government pleadership which is a public office and the
lucre-loving appetite for law offices, in the absence of a wholesome ceiling on lawyer's
fees, are issues of moment in a developing society controlled by the politics of skill and
enjoying a legal monopoly.
5. The State of Bihar, like many other States in the country, has an enormous volume of
litigation. Government litigation policy is vital for any State if resources are to be
husbanded to reduce rather than increase its involvement in court proceedings. It is
lamentable that despite a national litigation policy for the States having been evolved at
an all-India Law Ministers' Conference way back in 1972 K.L.T. 80 and despite the
recommendations of the Central Law Commission to promote settlement of disputes
where Government is a party See 54th Report of the law Commission, what we find in
actual practice is a proliferation of government cases in courts uninformed by any such
policy. Indeed, in this country where government litigation constitutes a sizeable bulk of
the total volume, it is important that the State should be a model litigant with accent on

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settlement. The Central Law Commission, recalling a Kerala decision, emphasised this
aspect in 1973 and went to the extent of recommending a new provision to be read as
Order 27 Rule 5B. The Commission observed:
27.9. We are of the view that there should be some provision emphasising the
need for positive efforts at settlement, in suits to which the Government is a
party.
27.10. With the above end in view, we recommend the insertion of the
following rule :-
5-B(1) In every suit or proceeding to which the Government is a party
or a public officer acting in his official capacity is a party, it shall be
the duty of the Court in the first instance, in every case where it is
possible to do so consistently with the nature of the circumstances of
the case, to make every endeavour to assist the parties in arriving at a
settlement in respect of the subject-matter of the suit.
(2) If, in any such suit or proceeding, at any stage it appears to the
court that there is a reasonable possibility of a settlement between the
parties, the court may adjourn the proceeding for such period as it
thinks fit, to enable attempts to be made to effect such a settlement.
(3) The power conferred by Sub-rule (2) is in addition to any other
power of the court to adjourn the proceedings.
6 . The relevance of these wider observations is that avoidable litigation holds out
money by way of fees and more fees if they are contested cases and this lures a lawyer,
like any other homo economicus, to calculate income on a speculative basis, as this
Government Pleader has done in hoping for a lakh of rupees.
7 . We have been taken through the Bihar Government's rubs for fees of Government
Pleaders in subordinate courts. Rule 115 appetises and is unrelated to the quantum or
quality of work involved nor the time spent. Ad valorem calculation in fixing fees for
land acquisition cases has a tendency to promote unearned income for lawyers. The
petitioner here has presumably fallen victim to this proclivity. The time has come for
State Governments to have a second economic look not only at litigation policy but
lawyer's fees rules (like Rule 115 in the Bihar instance) especially in mass litigation
involving ad valorem enormity and mechanical professionalism. Even a ceiling on
income from public sector sources may be a healthy contribution to toning up the moral
level of the professional system. After all, the cost of justice is the ultimate measure of
the rule of law for a groaning people. Government and other public sector undertakings
should not pamper and thereby inflate the system of costs. Maybe, this petition would
not have been filed had the prospect of income without effort not been offered by
Government Rules.
8. A closer look at the legal stand may be helpful. The manifest injustice pleaded by the
Government Pleader (the petitioner) is that the official income, expected from this
heavy harvest of cases, of Rs. 1 lakh was being taken away by a brother practitioner. In
support of this alleged injustice, he has pressed into service Section 2(7) of the CPC
which runs thus :
2(7). 'Government Pleader' includes any officer appointed by the State
Government to perform all or any of the functions expressly imposed by this

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 Code on the Government Pleader and also any pleader acting under the
directions of the Government Pleader.
9. Manifestly, this is an inclusive definition and, read along with Order 27 Rule (4) and
(8)B(c), clearly yields the inference that Government may have as many Government
Pleaders as it likes to conduct its cases even as any client, who has a crowd of cases to
be conducted, my engage a battery of lawyers. Government is in no worse position that
an ordinary litigant and is not bound to encourage monopoly within the profession.
Indeed, the root cause of the petitioner's desire to corner all the litigation of the
Government is that its policy of legal remuneration has no distributive bias nor socially
sober ceiling. Some States have already adopted such a policy. Indeed, the State must
evolve a policy in regard to Its Law Officers which concedes to counsel freedom to
recommend settlement of cases if they feel it just to do so and further practices
distributive justice which preempts the need for adjournment because of absence of
counsel and, lastly, sets a limit on the total fee payable for government work executed.
1 0 . Section 2(7) of the CPC being an inclusive definition allows any number of
Government pleaders. It vests no sole control on one Government pleader over others
and Government is perfectly free to put a particular Government pleader in charge of
particular cases. Each one of them is a Government Pleader and may depute other
lawyers and exercise control over such surrogates. In this view, there is no error in the
summary despatch deservedly given by the High Court to the writ petition whose main
merit was daring novelty.
1 1 . We must state that the learned Attorney General, appearing for the State, was
critical of a lawyer asking for on clinging to briefs and counsel for the petitioner (a
former High Court Chief Justice) rightly slurred over the pecuniary part of the petition
and veneered his submissions with the law of the high office of government
pleadership.
12. We fully appreciate the perspective presented by counsel. But before we come to
that, let it be bluntly stated that if Government does an act offending the public office
filled by a Government pleader what becomes the incumbent in the land of Gandhi is a
dignified renunciation of office, not a chase for the lost briefs through the 'writ' route
Moreover, the legal position is plain. As explained earlier, a bunch of Government
pleaders is perfectly permissible consistently with Section 2(7) and Order 27 Rule (4)
Civil Procedure Code. Nor do the Bihar rules regarding government pleaders help. They
are purely administrative prescriptions and serve as guidelines and cannot found a legal
right, apart from the fact that they do not contradict Government's power to appoint
more than one Government Pleader. Allocation of work or control inter se is an internal
arrangement and we see no error even in that behavior. Not to have provided more
government counsel when the volume of litigation demanded it, would have clogged the
dockets in Court and helped one pleader to corner all the briefs without reference to
expeditious or efficient disposals.
13. Be that as it may, one of the major streams of litigation in which government finds
itself entangled flows from land acquisition. The States' developmental projects which
necessarily must be large, involve acquisition of lands on a large scale. Bihar is no
exception. Since compensation claims come in considerable number before the Civil
courts, several lawyers have to be engaged by the State for expeditious attention to its
court litigation. The State, appreciating this need and with a view to help the court
liquidate the docket explosion, appointed more than one government pleader for every
District, depending on the case flow. Thus, Government Pleaders and Assistant

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Government Pleaders were appointed according to administrative rules of the State.
Each one is a Government Pleader under Section 2(7), CPC.
14. It is heartening to notice that the Bihar Government appoints these lawyers after
consultation with the District Judge. It is in the best interest of the State that it should
engage competent lawyers without hunting for political partisans regardless of
capability. Public offices and Government Pleadership is one shall not succumb to
Tammany Hall or subtler spoils system, if purity in public office is a desideratum. After
all, the State is expected to fight and win its cases and sheer patronage is misuse of
power. One effective method of achieving this object is to act on the advice of the
District Judge regarding the choice of Government pleaders. When there were several
thousand cases in the Patna courts and hundreds of cases before a plurality of tribunals,
it was but right that Government did not sacrifice the speedy conduct of cases by not
appointing a number of pleaders on its behalf, for the sake of the lucrative practice of a
single government Pleader. It is inconceivable how he would have discharged his duties
to the court and to his client if this crowd of land acquisition cases were posted in
several courts more or less at the same time. Adjournment to suit advocates'
convenience becomes a bane when it is used only for augmentation of counsel's
income, resisting democratization and distributel justice within the profession. These
principles make poor appeal to those who count, which is a pity.
15. Coming to the larger submission of counsel for the petitioner, we do recognise its
importance in our era of infiltration of politicking even in forbidden areas. A
Government pleader is more than an advocate for a litigant. He holds a public office.
We recall with approval the observations a Division Bench of the Madras High Court
made in Ramachandran v. Alagiriswami MANU/TN/0279/1961 : AIR1961Mad450 and
regard the view there, expressed about a Government Pleader's office, as broadly
correct even in the Bihar setup.
...the duties of the Government Pleader, Madras are duties of a public nature.
Besides, as already explained the public are genuinely concerned with the
manner in , Which a Government Pleader discharges his duties because, if he
handles his cases badly, they have ultimately to foot the bill.
The Rajasthan case does not take into account all the aspects of the matter.
(36) The learned Advocate General argued that the Government
Pleader, Madras is only an agent of the Government, that his duties are
only to the Government who are his principles and that he owes no
duty to the public at all and that for that reason he would not be the
holder of a Public Office.
(37) It is difficult to accept this view. The contention of the learned
Advocate General may have been less untenable if the duties of the
Government Pleader were merely to conduct in courts cases to which
Government are a party. But, as the rules stand, he has a number of
other duties to discharge. Besides, even if his only duty is the conduct
of cases in which Government have been impleaded, still as explained
more than once before the public are interested in the manner in which
he discharges his duties.
...
(90) I am clearly of opinion that having regard to the fact that the

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 Government Pleader of this Court is employed by the State on
remuneration paid from the public exchequer and having regard to the
various functions and duties to be performed by him in the due
exercise of that office, most of which are of an independent and
responsible character, the office must be held to be a public office
within the scope of a quo warranto proceeding.
I consider that the most useful test to be applied to determine the question is
that laid down by Erle, J. in (1851) 17 QB 149. The three; criteria are, source
of the office, the tenure and the duties. I have applied that test and I am of
opinion that the conclusion that the office is a public office is irresistible.
1 5 . In this view, ordering about a Government Pleader is obnoxious but nothing
savouring of such conduct is made out although we must enter a caveat that
Governments under our Constitution shall not play with Law Offices on political or other
impertinent considerations as it may affect the legality of the action and subvert the rule
of law itself. After all, a Government Pleader and, in a sense, every member of the legal
profession, has a higher dedication to the people.
16. We dismiss the special leave petition but with a sad tag, which is the message of
this martyrdom. Professions shall not be concealed conspiracies with 'effete,
aristocratic, protective coloration', which at the same time enables one to make a
considerable sum of money without sullying his hands with a "job" or "trade". The
remarks of Tabachnik, in 'Professions for the People', about English professions of the
eighteenth century smell fresh. :
One could carry on commerce by sleight of hand while donning the vestments
of professional altruism. To boot, one could also work without appearing to
derive income directly from it. As Reader explains:
The whole subject of payment... seems to have caused professional men acute
embarrassment, marking them- take refuge in elaborate concealment, fiction,
and artifice. The root of the matter appears to lie in the feeling that it was not
fitting for one gentleman to pay another for services rendered, particularly if
the money passed directly. Hence, the device of paying barrister's fee to the
attorney, not to the barrister himself. Hence, also the convention that in many
professional dealings the matter of the fee was never openly talked about,
which could be very convenient, since it precluded the client or patient from
arguing about whatever sum his advisor might eventually indicate as a fitting
honorarium (1966 p. 37).
The established professions-the law, medicine, and the clergy-held (or
continued to hold) estate-like positions :-
The three 'liberal professions' of the eighteenth century were the nucleus about
which the professional class of the nineteenth century was to farm. We have
seen that they were united by the bond of classical education : that their broad
and ill-defined functions covered much that later would crystallize out into new,
specialised, occupations: that each, ultimately, derived much of its standing
with the established order in the State... (1966, p. 23).
17. The time has come to examine the quality of the product or service, control the
price, floor to ceiling, enforce commitment to the people who are the third world
clients, and practise internal distributive justice oriented, on basic social justice so that

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the profession may flourish without wholly hitching the calling to the star of material
amassment immunised by law from the liabilities of other occupations. We do not
suggest that lawyering in India needs a National Commission right now as in England
and elsewhere, nor do we subscribe to the U.S. situation on which the President and the
Chief Justice have pronounced. We quote -
We are over lawyered.... Lawyers of great influence and prestige led the fight
against civil rights and economic justice.... They halve fought innovations even
in their own profession.... Lawyers as a profession have resisted both social
change and economic reform."
(President Carter, May, 1978)
We may well be on our way to a society overrun by hordes of lawyers,
hungry as locusts, and brigades of justices in, numbers, never before
contemplated."
(U.S. Chief Justice Burger)
18. Law Reform includes Lawyer Reform, an issue which the petitioner has unwittingly
laid bare. After all, as Prof. Connel states-
Criticism of relatively conservative institutions in times of social questioning is
hardly a new phenomenon.
(Australian Law Journal, Vol. 51, p. 351)
19. This long judicial journey vindicates the Short High Court order- Dismissed.

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