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N Mala was appointed as Government Pleader (in-charge) after the tenure of Gandhiraj as Government Pleader ended last May. The petitioner contends that the new appointment violates applicable orders and Court rulings.
A single judge Bench of Justice V Parthiban today issued notice in a plea moved in Madras High Court challenging a June 20 Puducherry Government order giving one N Mala "Full Additional Charge as Government Pleader (in-charge)."
The petition filed by an Advocate, Karthik through Advocate R Sreedhar contends that the appointment has been made in contravention of "Statutory rules, orders" and Court rulings.
The challenged appointment was made after the term of Gandhiraj as Government Pleader came to end after three years last May.
In this backdrop, the petitioner submits that, "With the expiry of his term, I was under fond hope that the vacancy for the post of Government Pleader would be notified by the Respondents 1 to 4 herein enabling me to apply for the said post."
However, last month, the Puducherry Government notified that appointment of N Mala as the Government Pleader (in charge) on a temporary basis for a period of one year or till the regular Government Pleader is appointed by the Government.
While issuing notice today, the High Court asked the Government authorities to respond to the progress of the formulation of rules when it comes to the appointment of law officers.
In Septmeber 2018, the Bench of the Chief Justice S Manikumar and Justice Subramonium Prasad was told that the draft rules for the appointment of Law Officers for Puducherry would take three more months to finalise.
Appearing for the petitioner side, Advocate Chandrakumar L told Justice Parthiban today that these rules were yet to be notified and that in the meanwhile an ad hoc appointment has been made (which is now under challenge).
In the absence of notified rules, Chandrakumar also argued that it is the Public Prosecutor who should be in charge and that the Government cannot "pick and choose" law officers.
During the preliminary hearing today, the Government responded that it was in the process of formulating the rules. The Court proceeded to post the matter on July 24, while directing the Government to appraise it of at what stage the rule formulation is presently in.
The petitioner has challenged the appointment of N Mala as the Government Pleader (in-charge) on the following grounds:
The petitioner argues that in making such an appointment, the Puducherry Government has intentionally violated mandatory procedure that has been laid down by the Supreme Court in State of Punjab & Anr. v. Brijeshwar Singh Chahal & Anr when it comes to the appointment of law officers in the absence of any rules
Whereas the Government had undertaken to notify the rules for appointment of law officers within a three month period before a Madras High Court Bench, these rules were yet to be finalised or notified. As such, the procedure for appointment of law officers should include the selection of a panel of advocates, which must be then forwarded for approval to the High Court's Chief Justice. The petitioner contends that this procedure has been violated and that Mala was appointed as the Government Pleader without transparency.
A May 2016 Government Order issued by the Puducherry Lieutenant Governor containing regulations has also been cited to buttress the petitioner's case. A clause in this order states that "During the temporary absence of the Government Pleader the Public Prosecutor shall be in charge of the said office.”
Whereas the challenged appointment has been "coloured with the words temprary basis", the petitioner argues that the appointment is intended for an indefinite period. It is further submitted that this intent is reflected in the words “or till the regular Government Pleader is appointed by the Government” in the June 20 notification. "It is also relevant that the absence of the further wordings 'whichever is earlier' would mean that the appointment is intended to be effected perpetually", the petitioner adds.
The Petitioner also contends that the appointment was made unilaterally by Puducherry's Lieutenant Governor Kiran Bedi in violation of Rules 50 and 51 of the Rules of Business of the Government of Pondicherry.
The petitioner points out that these rules mandate that if there is a difference of opinion between the Lieutenant Governor and the Minister-in-charge, the same has to be settled by way of discussion.
It is submitted that on the eve of the expiry of his term as Government Pleader, Gandhiraj had sought for an extension of term and that the same was considered by the Law Minister, who circulated a file on the subject as well.
However, the petitioner contends that, "The Lt.Governor, in consideration of her vested interest, had malafidely chosen to differ with the said decision of Minister of Law Department in extending term of erstwhile Government Pleader."
The petitioner further contends that the challenged appointment is "nothing but an outcome of a bias attitude" given that the former Government Pleader, Gandhiraj had made submissions that did not favour Lieutenant Governor Bedi in the litigation before Madras High Court between Puducherry's elected Government and its Lieutenant Governor.
The matter has been posted to be taken up next on July 24.