Assistant Government Advocate held not to be ‘in service’ of the State Government  

Supreme Court: In a Judgment pronounced by Dipak Mishra, CJ for the Full Court comprising of himself and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ., the Supreme Court held an advocate on the panel of Assistant Government Advocates was not ‘in service’ of the Bihar State Government.

The petitioner, State Election Commissioner (Bihar), filed an appeal against the decision of Patna High Court, wherein the order of the Commission disqualifying Respondent 1 from the post of Member in the Panchayat Samiti was quashed. Respondent 1 was empanelled as an Assistant Government Advocate by the Bihar State Government. The State EC had based its order of disqualifying Respondent 1 on Section 139(1) (c) of Bihar Panchayat Raj Act, 1993 which disqualifies a person from holding the post of Member of the Panchayat Samiti if he is in service of Central or State Government or any local Authority. The State EC held that since Respondent 1 was receiving fees for the cases conducted by him from the Government, he would be deemed to be in service of the State. The Single Judge observed that the appointment of a Government Pleader is governed by an executive instruction which is a tenure appointment; he remains a legal practitioner for all purposes and intent. The relationship between the State and the Assistant Government Pleader is that of ‘lawyer and client’ and not of ‘master and servant’. Further, the expressions “in service” of the State Government and holding “office of profit” in State Government were not synonymous; a person may hold an office of profit in the State but that doesn’t necessarily mean that he is in service of the State Government.

Supreme Court noted that the key word in issue was ‘service’ as mentioned in Section 139(1)(c) and (d). The Court thought it apposite to restate the legal position regarding the distinction between “office of profit” and “service under the Government”. The Court revisited a catena of Judgments to ultimately find favour with the distinction as brought out by the Single Judge. It was observed that conduct of an advocate is subject to discipline of the Bar Council, and as such Respondent 1 was not amenable to any disciplinary proceedings under the State Government. There was no master-servant relationship. Further, even if some remuneration was attached to the office, Respondent 1 could not be treated to be in service of the State Government. In view of such conclusion, the appeal preferred by the State EC was dismissed. [State Election Commissioner, Bihar v. Janakdhari Prasad,2018 SCC OnLine SC 659, decided on 03-07-2018]

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