Holding

Section 2(7) of the CPC is an inclusive definition that allows the State to appoint multiple Government Pleaders and to assign cases to them; the government's appointment of Assistant Government Pleaders and allocation of land‑acquisition matters was lawful.

Summary

M. P. Sinha, the Government Pleader for Patna district, was authorized to represent the State in all civil matters. When the Bihar Government appointed nine Assistant Government Pleaders and assigned a large batch of land‑acquisition cases to one of them, Sinha refused to hand over the briefs, claiming an exclusive right to conduct all government cases and alleging loss of income. He filed a writ petition, which the Patna High Court dismissed, and then sought special leave under Article 136 of the Constitution. The Supreme Court held that Section 2(7) of the Code of Civil Procedure provides an inclusive definition of "Government Pleader" permitting the State to appoint multiple pleaders and to allocate cases among them, and that the Bihar Rules are merely administrative guidelines that do not confer a legal right. Consequently, the government's action was lawful and the petition was dismissed.

Issues considered

The scope of Section 2(7) of the Code of Civil Procedure regarding the definition of "Government Pleader" and whether it confers exclusivity.
Whether the State may appoint Assistant Government Pleaders and allocate specific cases to them.
Whether the Bihar Rules on Government Pleaders create any enforceable right for a Government Pleader.
Whether the petition raises a question of public importance warranting special leave under Article 136.

Legislation cited

Code of Civil Procedure, 1908s. 2(7), s. Order 27 Rule 4, s. Order 27 Rule 8(c)

Subjects

Government PleaderSection 2(7) CPCAssistant Government PleaderLand acquisition litigationLitigation policyLawyer's feesPublic officeSpecial Leave PetitionArticle 136

Judgment

,,

759

MUNDRIKA PRASAD SINHA A
v.
STATE OF BIHAR
September 20, 1979
(V. R. KRISHNA _IYER AND P. N. SH!NGHAL, JJ]
Advocate-Appointed as Govenunent Pleader to conduct all Govenunent B
cases-Government, if has pawer to appoint Assistant Government Pleaders
<lnd 1vithdraw cases from Government Pleader.
· The petitioner, who was an Advocate, was authorised by the Government to
represent it in. all the civil cases in a district court. Considering the pendency
of a large number of Government cases before courts and tribunals the Govern-
ment appointed nine Assistant Government Pleaders during the term of office c
of the petitioner as Government Pleader and asked him to nlake over all the
land acquisition cases to one of the Assistant Government Pleaders. The
petitioner refused to comply with the Government's instructions and stated
that he would himself conduct all the cases. The Government, however, stuck
to it.S stand. His writ petition impugning the Government's decision was· dis-
missed by the High Court.
D
Dismissing the petition under Art. 136.
liELD : 1. The definition of Government Pleader contained in s. 2 (7) of
the Code of Civil Procedure is an inclusive definition which, read along with
O. 21, rr. 4 and 8(c) clearly yields the inference that Government may have as
many Government Pleaders as it likes to conduct its cases. The section vests
no sole control on one Government Pleader over others and the Government is
perfectly free to put a particular GOvernment Plearler in charge of particular E
cases. Government Pleaders and Assistant Government Pleaders who had been
appointed according to administrative rules of the State are Goyernment
Pleaders \Vithin the meaning of the definition in s. 2(7) of the Code. Each
one of them may dopute other lawyers and exercise control over such surro-
gates. l763 G; 764 CJ
2. The Bihar Rules regarding Government Pleaders, which are purely ad- F
miniitrati~e prescriptions and which serve as guidelines and on which no
legal right can be founded do not help the petitioner. The allocation of work;
or control inter se is an inl:Crnat arrangement and there is no error in the
behaviour of the Government. [764 F-Gl
3. When there were several thousand cas~s in the courts in the State and
hundreds of cases before Tnbunals it was but right that Government did not G
sacrifice the speedy, conduct of case. by not appointing a number of pleaders.
ft is inconceivable_ how the petitioner would have discharged his duties to the
court and to the client of this crowd of land acquisition cases was posted jn
"Several courts more or less at the same time. [765 D~EJ
:W Ramachandran v. A.lagiriswami, A.I.R. 1961 Madras 450, approved.
[1. Despite the national litigation policy evolved by the All India Law H
Ministers' Conference in 1957 end the recommendation of the Law Com-
tnlsSion there is still a pio!iferaticn of government ·case. in courts uninformed
\

760 SUPREME COURT REPORTS (1980) 1 S.C.R.

A by such policy. It is important that the State should be a model litigant with
accent on settlement. Time has come for State Gov~rnments to have a
second look, not only at the litigation policy but lawyers' fees rules e_specially
in mass litigation involving ad valorem calculations in fixing fees in land
acquisition cases. [762 B; 763 CJ

2. The politicisation of Government Pleadership which is a public office is
an issue of moment in a developing society controlled by the politics of skill 1
and enjoying a legal monopoly. It is a healthy practice. that the Government
appoints these lawyers after consultation with the District Judge. Governnlents
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 sub~
vert the rule of law itself [765 CJ '

C CIVIL APPELLATE JURISDICTION Special Leave Petition (Civil)
No. 6056 of 1979.
From the Judgment and Order dated 12-7-1979 of the Patna
High Co'urt in C.W.J.C. No. 1618/79.
P. Govindan Nair and S. K. Sinha for the Petitioner.
D'
L. N. Sinha, Attorney G'neral, U. P. Singh and R. B. . Mahton
for the Respondent.
The Order of the Cour was delivered by
I •
KRISHNA IYER, J. An unusual grievance of a Government Plea-
E der, the petitioner, ventilated in a writ petition, was given short
shrif~ by the High Court in a laconic order, but undaunted by this
summa,y brevity the petitioner has pursued his case to this Court nnder
Article 136. In utter nudity, his ca&l'is a claim of monopoly of all
government cases in the Patna District, including lucrative land acquisi-
tion litigation, as part of the professional 'estate' of a Government Plea-
F der. 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
G
public office of Government Pleader by politicking men in the
Secretariat or by practitioners of favouritism dressed in 'little brief
authority', a deeper issue in which the Bar has a stake and the
Bench must also be concerned. We wholly endorse !he view that
at some. vital levels of justice, the Besh Bench may hang limp if the Bar
B does not represent. Justice to his office, not love of rupees, was
~rg~d as the respectable motivation for his persistent litigation,
M~ybe.
M. P. SINHA v. BllIAR (Krishna Iyer, !.) 761
.
The· fabric of facts, on which the grievance in law rests, may be A
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 wa_s 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 nomi- B
nee. Thereupon, the petitioner challenged the power of Govern-
ment, 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 instruc- c
tion in allowing any Assistant Government Pleader to work
in this case. I shall myself conduct this case and I have
enough time for it"
Government wrote back that in future he would not be given such
cases. Chagrined by this loss of income and mayhem to his monopoly D
he rushed to the High Court for the uniyersal 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 limi-
. tations. Sans substantial questk>n of law of public importance which
deserves to be decided by the Supreme Court or at least flaw in Jaw E
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 petiti.oner claims
to have suffered, and so we close the door but by a speaking order
since counsel's arguments have centred on the peril to the public offi-
ce of Government Pleadership with polential menace to the admini- F
stration of justice. Mystic muteness, however correct, may sometimes
,.,.
".1,,_l mislead when plain speech may finally silence.
What is the gravamen of this Government Pleader's legal grie-
vance? His economic grievence, however much he may hide it, is the
prospective loss of fee from land acquisition c_ases which were spirited G
• away. TI1is '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 Iakh 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 govern- H
ment pleadership which is a public office and the lucre-loving appetite
for law offices, in the absence of a who_lesome ceiling on lawyer's fees,
762 SUPREME COURT REPORTS [1980] 1 S.C.R.

A are issues of moment in a developing s_ociety controlled by the politics i,_ ' .
of skill and enjoying a legal monopoly.
The State of Bihar, like many other States in the country, has an
enormous volume of litigation. Govermnent litigation policy is vital
for any State if resources are to be husbanded to reduce rather than
B increase its involvement in court proceedings. It is lamenfao1e that
despite a national litigation policy for the States having been evolved
at an all-India Law Ministers' Conference way back in 1957 (') and
despite the recommendations of the Central Law Commission to pro-
mote settlement of disputes where Government is a party( 2 ), what we
find in actual practice is a proliferation of government cases in courts
c uninformed by any such policy. Indeed, in this country wherei govern-
ment litigation constitutes a sizeable bulk of the total volume, it is
important that the State should be a model litigant. with accent on
settlement. The Central Law Commission, recalling a Kerala decision,
emphasised this aspect in 1973 and went to the extent of recommend-
i.1g a new provision to be read as Order 27 Rule SB. The Commis-
D sion observed :
"27.9. We are of the view th~t there should be some
provision emphasising the need for positive efforts at settle-
ment, in suits to which the Government is a party.
27.10. With -the above end in view, we recommend
E the insertion of the following rule : -
5'B(l) In every Suit or proceeding to which the
Government is a party or a public officer acting in his official
cap:rcity 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,
F to make every endeavour to as~ist. 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 ~tage it
appears to the court that there is a reasonable possibility
of a settlement between the parties, the court may adjourn
G the proceeding f.or such peri~ as it thinks fit, fo enable
attempts to be made to effect such a settlement. "
(3) The power conferred by snb-rule (2) is in addition
to any other power of the court to adjourn the proceedings."
The relevance of these wider observations is that avoidable litiga-
tion holds out money by way oUees and more fees if they are contested
H
(!) 1972 K. L. T. 74 at p. 80
(2) See 54th Report of the Law Commission
M. P. SINHA v. BUIAR (Krishna Iyer,].) 763

cases m:d this lures a l'!,wyer, like any other homo economicus, to cal- A
culate income on a speculative basis, as this Government Pleader bas
done in hoping for a lakh of rupees.
We have been taken through the Bibar Government's rules for fees
of Government Pleaders in subordinate courts. Rule 115 appetises
and is unrelated to the· quantum or quality of work inv01ved nor the B
time spent. Ad valorem calculation in fixing fees for land acquisition
cases has a tendency to promote unearned income for lawyers. The
petitione.r here has presumably fallen victim to this proclivity. The time
has come for State Governments to have a seconci economic look not
only at litigation policy but lawyer's fees rules (like rule 115 in the
• Bihar instanc<:) especially in mass litigation involving ad valorem c
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. Go-
vernment and other public sector undertakings should not pamper and
D
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.
A closer look at the legal stand may be helpful. The manifest
injustice plea<jod by the Government Pleader (the petitioner)· is that
the official income, expected from thl• heavy harvest of cases, of
Rs. 1, lakh was being taken away by a brother practitioner. In sup-
port of this alleged injustice, he has pressed into service section 2(7)
of the Code of Civil Procedure which runs thus :
"2(.7) . . 'Government Pleader' includes any officer
apponited by the St~.te Government to perform all or any F
of the functions expressly imposed by this Code on the GoF
ernmenr Pleader and also any pleader acting ·under the
· directions of the Government Pleader."
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
G

conduct its cases even as any client, wbo has a crowd of cases to
be conducted, my engage a battery of lawyers. Government is in nd
worse posi)ion that an ordinary litigant and is not bound .to encour-
age monopoly within the profession. Indeed, the root cause of the
petitioner's desire to comer all the litigation of the Government is H
that its policy of legal remuneration bas no ·distributive bias nor
socially sober ceiling. Some States have already adopted such ·a
764 SUPREME COURT REPORTS (1980] 1 S.C.ll.

policy. Indeed, the State must evolve a policy in regard to its Law
Officers which concedes to counsel freedom to recommend settle-
ment of cases if th.ey feel it. just to do so and further practises distri-
butive 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.
B
Section 2(7) of the Code of Civil Procedure being an inclusive de-
finition allows any number of Government pleaders. It vests no sole
control .o'n one Government pJeader over others and Gov_emment is
perfectly free to put a par_ticular Government pleader in 'charge of
particular cases. Each one of them is a Government Pleader and may
c depute other lawyers and exercise control over such surrogates.. In this •
view, the:re is no error in the summary despatch deservedly. given by
. the High Court t.o the writ petition whose main merit was daring no-
velty.
We must state that the learned Attorney General, appearing for
D the State, was critical of a lawyer asking for or 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 sub-
missions with the law of the high .office of gevernrnent pleadership.
We fully appreciate the perspective presented by counsel. But be-
E fore we come to that, let it be bluntly stated that if Government does
an act offending the publice office filled by a Government pleader what
becomes the incumbent in the land of Gandhi is a dignified renuncia-
tion of office, not a chase ~or the lost briefs through. the 'writ' route.
Moreover, the legal p06ition is plain.· As explained earlier, a bunch of
Government pleaders is perfectly permissible consistently with S~ction
F 2(7) and Order 27 rule (4) Civil Procedure Code. Nor do the Bihar
rules rega<ding government pleadei:s help. They are purely administra-
tive 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 Q.overnment Pleader. Allocation of work or
control inter se is· an intl'rnal arrangement and we see no error even
G in that behaviour. Not to have provided more government counsel
when the ¥Cilurne of litigation demanded it, would have clogged the
dockets in Court and helped one pleader to corner all the briefs with-
out reference to expeditious or efficient disposals.
Be that as it may, one of the major streams of litigation in which
a 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 corn-
M. P. SINHA v. BIHAR (Krishna Iyer, J.) 765

pensation claims come in considerable number befOl'e the Civil courts, A
several lawyers have to be engaged by the State for expeditious. atten-
tion 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 GC!Vernment
Pleaders were appointed according to administrative rules of the State. B'.
Each one is a Government Pleader under Sec.2(7), Code of Civil
Procedure.
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 with- CJ
out hunting for political partisans regardless of capability. Public offi-
ces--and Government Pleadership is one-shall not succumb to
Tammany Hall or subtler spoils system, if purity in public office i~
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 D
regarding the choice of Government pleaders. When there were seve-
ral thousand cases in the Patna courts and hundreds of cases before a
plurality of tribunals, it was but right that Government did not sacri-
fice the. speedy conduct of cases by not appointing a number of ple~
ders on its behalf, for the sake of the lucrative practice of a single
government Pleader. It is inconceivable how he would have discharged E
his duties to the court and to his client if this crowd of land acqui-
sition cases were posted in several courts more or Jess at the same
time. Adjournment_ to suit advocates' convenience becomes a bane
when it is used only for augmentation of counsel's income, resisting
democratisation and distributial jusitce within the profession. These' F
principles make poor appeal to those who count. which is a pity.
. 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
foc a litigant. He holds a public office. We recall with approval
the observations a Division Bench of the Madras High Court made G
in Ramachandran v. Alagiriswami( 1) and regard the view there,
expressed about a Government Pleader's office, as broadly correct
even in the Bihar set-up.
" .... the duties of the Government Pleader, Madras
are duties of a public nature. Besides, as already explain- H
ed the public are genuinely concerned with the manner in
(1} A. I.. R. l 961 Madras 450
766 SUPREME COURT REPORTS [1980] 1 s.c.a.

A which a Government Pleader discharges his duties becaUBe, ·
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 Gov-
B
ernment, that his duties are only to the Governmtnt 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 conten-
c tion 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
D 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
E fact that the Government Pleader of this court is employed
by the State on remuneration paid from the public exche-
quer 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 cha-
racter, the office must be held to be a public office within
F 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 te&t
G and I am of opinion that the conclusion that the office is
a public office is irresistible".
In this view, ordering about a Government Pleader is obnoll:ious
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
H it may affect the legality of the action and subvert the rule of law
itself. After all, a Government Header and, in a sense, every mem-
ber of the legal profession, has a higher dedication to the people.
M. P. SINHA v. BIHAR (Krishna Iyer, J.) 767

We dismiss the special leave petition but with a sad tag, which is A
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 bis hands with a "job" or "trade". 111e remarks of
Tabacbnik, in 'Professions for the People', about English professions
of the eighteenth century smell fresh :
"One could carry on commerce by sleight of band
while donning tho vestments of professional altruism. To
boot, one could also work without appearing to derive in-
come directly from it. As Reader explains :
The whole subject of payment. ..... seems to have C
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 D
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). E
The established professions-the law, medicine, and
the clergy~held (or continued to hold) estate-like posi-
tions : -
The three 'liberal professions' of the eighteenth century
were the nucleus about which the professional class of the F
nineteenth century was to form. 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)."
G

The time has com<; 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 distribu-
- tive justice oriented on basic social justice so that the profession may
flourish without wholly hitching the calling to the star of material H
anwsment immunised by law from the liabilities of other occupa-
tinris. We do not suggest that lawyering in India needs a National
768 SUPREME COURT REPORTS [1980] 1 s.c.R.

A 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 law:ijered. . . . . . Lawyers of great in-
fluence and prestige led the fight against civil rights and
economic justice. . . . . . They h:ll\\e fought innovations
B
even in their own profession. . . . . . Lawyers as a profes-
sion have resisted both social change and economic
reform."
(President Carter, May, 1978)
"We may well be on our way to a society overrun by
c hordes of lawyers, hungry as locusts, and brigades of
justices in numbe:rs, never before contemplated."
(U.S. Olief Justice Burger)
Law Reform includes Lawyer Reform, an issue which the peti-
tioner has unwittingly laid bare. Afier all, as Prof. Connel
D states-
"Criticism of relatively conservative lnstitutions in
times of social questioning is hardly a new phenomenon."
(Australian Law Journal, Vol. 51, p. 351)

This long judicial journey vindicates the Short High Court
E
order- Disnlissed.

P.B.R. Petition dismissed.

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•