Reservation policy not applicable to law officers engaged by the government: Madras High Court

Law officers engaged by the government do not hold a civil post and, therefore, the reservation policy mandated under Article 16(4) of the Constitution will not be applicable to such appointments, the Madras High Court has held..A Bench of Chief Justice SV Gangapurwala and D Bharatha Chakravarthy said that the relationship between the government and law officers it appointed was not that of a master and servant. Further, the government, the Court said, was duty bound to appoint only the most “competent, capable and meritorious lawyers” to represent it in courts and therefore, “merit must be the sole criterion” for such appointments.“As the Law Officers engaged by the government do not hold a civil post, nor the relationship of master and servant exists, Article 16(4) of the Constitution of India would not be applicable. The criterion to apply the reservation policy would not be attracted,” the High Court said..The Court dismissed a Public Interest Litigation (PIL) filed in 2017 by local political leader Thol Thirumavalavan seeking horizontal and vertical reservation for women and those belonging to the Scheduled Caste (SC) and the Scheduled Tribe (ST) communities in appointment as law officers of the Madras High Court and the subordinate courts in Tamil Nadu..The PIL petitioner had argued that the Constitution mandated such reservation even in temporary posts. He claimed that the State of Telangana provided for reservation for women, SC/ST, and minority candidates seeking appointment as law officers.Advocate M Palanimuthu, who appeared for Thirumavalavan, sought a declaration that the Appointment of Law Officers of the High Court of Madras and its Bench at Madurai (Appointment) Rules, 2017 was arbitrary..Advocate General R Shunmugasundaram, who appeared for the State government, opposed the PIL and argued that lawyers cannot be considered as government employees and that the post of a law officer was not a civil post. Every law officer appointed by the government was a professional practitioner engaged to do a specific work by using his or her legal expertise, the AG had argued..After hearing the arguments, the Bench noted,"The relationship between an advocate and his client is uberrima fides, i.e., one of active confidence and trust. The government is the custodian of public interest. It is the obligation and the duty of the government to protect the public interest to its optimum extent and in the best possible manner. This duty mandates the government to engage the most proficient, competent and capable persons to represent it, inter alia, the public interest. Ergo, in the selection of Law Officers, the government is duty bound to make earnest efforts to choose the best. In view of that, while selecting the Law Officers, merit ought to be the sole consideration...".The Court held that reliance could not be placed on government orders and office memoranda providing for reservation even to contractual employees. These would apply to those who are in employment of the government or the local bodies or the institutions, it said."However, as discussed supra, the engagement of the Law Officers by the government is not on a civil post and these Law Officers are not the employees of the government. In view of the aforesaid discussion, it cannot be held that reservation – vertical and/or horizontal needs to be provided while appointing the Law Officers by the government. The procedure is laid down. The procedure laid down does not suffer from the vice of arbitrariness, nor it can be said that the procedure is not transparent,” the order stated..[Read Order]