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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.11199 OF 2017 (Arising out of S.L.P.(C) No.2153 of 2016)  

The State of Maharashtra  & Anr. ….Appellant(s)

VERSUS

Kishor M. Gadhave Patil & Ors.       …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal is filed against the final judgment

and  order  dated  16.12.2015  passed  by  the  High

Court  of  Judicature  of  Bombay  Bench  at

Aurangabad  in  Writ  Petition  No.  8951  of  2015

whereby  the  High Court  allowed the  writ  petition

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filed by the respondents herein and made the ‘Rule’

absolute.   

3) The controversy involved in the appeal, which

due to subsequent events, remains confined to very

narrow issues surviving for consideration. However

to  appreciate  what  is  survived,  few  relevant  facts

need mention below.

4) The  appellants  herein-State  of  Maharashtra

and Joint Secretary,  Law & Judiciary Department

were the  respondents whereas the respondent Nos.

1 to 15 herein were the  writ petitioners before the

High  Court  in  a  writ  petition  out  of  which  this

appeal arises.

5) The  respondents  (Total  15)  are  advocates  by

profession  and  have  been  practicing  in  various

Courts  including  Bench  of  the  High  Court  at

Aurangabad (MH). The respondents were appointed

by the State Government as Additional Government

Pleaders  (Addl.GP)/Assistant  Government

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Pleaders(AGP))/Additional  Public  Prosecutors(APP)

for the Bench of the High Court at Aurangabad by

order  dated  05.10.2013  (Annexure-P-1).   Similar

orders of appointment were issued by the State on

different dates in relation to some respondents.  

6) The  respondents  accepted  their  appointment

and started functioning by discharging their duties

as  Addl.GP/AGP/APP  in  Courts  in  terms  of  their

appointment  orders.  However,  by  order  dated

28.08.2015,  the  State  Government  cancelled  the

appointments  of  all  the  respondents  w.e.f

28.08.2015 by taking recourse to the powers under

Rule  30(5)  of  the  Maharashtra  Law  Officers

(Appointments,  Conditions  of  Service  and

Remuneration)  Rules 1984 (hereinafter  referred to

as "the Rules").

7) The  respondents,  felt  aggrieved  of  the  order

dated  28.08.2015,  challenged  its  legality  and

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correctness  in  the  writ  petition  out  of  which this

appeal arises.  

8) By  impugned  order,  the  High  Court  allowed

the  respondents’   writ  petition  and  quashed  the

order  of  cancellation dated 28.08.2015 which has

given rise to filing of this appeal by way of special

leave by the State of Maharashtra.  

9) By interim order dated 29.01.2016, this Court

stayed the operation of the impugned order of the

High  Court.   As  a  result,  the  cancellation  order

dated 28.08.2015 continued to remain in operation

against the respondents.  

10) It is pertinent to mention here, as stated by the

learned  counsel  appearing  for  the  parties,  that

during the pendency of the appeal, the term of the

respondents  on  their  respective  posts  expired  on

different  dates  such  as,  05.06.2010,  09.06.2010,

16.08.2010,  05.10.2010,  09.10.2016  and

22.10.2016.

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11) It is with this background, the question arises

for  consideration is  as to what orders need to be

passed while disposing of  the appeal.  One cannot

dispute that even if the impugned order is upheld,

the writ petitioners (respondents herein) would still

not be entitled to continue any more on the post

because their respective terms have come to an end

by efflux of time during the pendency of this appeal.

It is also not in dispute that the said terms were not

extended by the State and rather curtailed before its

expiry  period  by  issuing  the  cancellation  order

which was impugned in the writ petition.  It is also

not  in  dispute  that  if  the  cancellation  order  is

upheld,  the  question  of  granting  any  relief  to

respondents would not arise.  

12) Heard  Mr.  Kunal  A.  Cheema,  learned  Addl.

Government Pleader for the appellants and Mr. J.P.

Cama,  learned  senior  counsel  and  Mr.  Rahul

Chitnis, learned counsel for the respondents.

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13) Learned counsel for the appellants supported

the  cancellation  order  dated  28.08.2015  and

contended that keeping in view the law laid down by

this Court on the issue in question in several cases

such as  Kumari Shrilekha Vidyarthi & Ors.  Vs.

State of U.P. & Ors.,  (1991) 1 SCC 212  State of

U.P. & Anr. Vs. Johri Mal, (2004) 4 SCC 714 and

State of U.P. & Ors. Vs. Ajay Kumar Sharma &

Anr., (2016) 15 SCC 289, the High Court should not

have quashed the cancellation order.

14) Learned counsel for the respondents, however,

urged that the cancellation order dated 28.08.2015

having been passed under Rule 30(5) by the State,

the same was rightly struck down by the High Court

as being stigmatic and punitive in nature.  

15)  Learned counsel in the alternative submitted

that due to stay operating against the respondents,

they  could  not  work  on  their  respective  posts

though otherwise they were ready to discharge their

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duties.   It  was,  therefore,  urged  that  the

respondents be  paid their  entire  remuneration till

the expiry of their respective terms.

16)  It was also his alternative submission that in

any  event,  the  respondents  be  paid  their

remuneration from the date of stay granted by this

Court  (29.01.2016)  till  the  date  of  expiry  of  their

respective terms.

17) Having  heard  the  learned  counsel  for  the

parties and on perusal of the record of the case, we

are inclined to dispose of the appeal as under.

18) Rules 30 (5) and (6) of the Rules read as under:

“30. Period of Appointment.

(5) A  Law  Officer  shall  be  liable  to  be removed from his office at any time, if he  is  guilty  of  any  act  or  conduct which, in the opinion of Government, in the Law and Judiciary  Department,  is incompatible  with  his  duties  as  such Law  Officer.   The  decision  of Government in the Law and Judiciary Department in such cases shall be final.

(6) Notwithstanding anything contained in sub-rules(2)  and  (3),  but  save  as otherwise  provided  in  sub-rule(5),  the

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appointment of any Law Officer, which is  at  the  pleasure  of  the  Government may  at  any  time,  be  terminated  by Government in the Law and Judiciary Department by giving him one month’s notice or, where any retainer is payable to  such  Law  Officer,  be  terminated forthwith  by  paying  him one  month’s retainer in lieu of such notice.”

19) Having regard to the background facts, nature

of  controversy,  the  subsequent  events  and  the

consequences  which  are  likely  to  result  due  to

subsequent  events  occurring  in  the  case,  we

consider it  just and proper and in the interest of

justice  to  modify  the  order  of  cancellation  dated

28.08.2015  by  treating  the  same  to  have  been

passed  under  Rule  30(6)  of  the  Rules.  In  other

words, the interest of justice would be fully met if

the cancellation order dated 28.08.2015 is held to

have been passed under to Rule 30(6).  

20)  Since  we  have  modified  the  order  dated

28.08.2015 by treating it to have been passed under

Rule  30(6),  the  State  is  directed  to  ensure

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compliance of Rule 30(6) and accordingly pay one

month’s  retainer  in  lieu  of  notice  period  to  each

respondent  as  was  fixed  in  their  respective

appointment letters.  

21) Let  the  amount  be  paid  to  each  respondent

within  3  months  from the  date  of  receipt  of  this

order.

22) We also observe that the State would be free to

consider  the  cases  of  any  of  the  respondents  for

their appointment on any of the post in future, in

case,  if  the  State  so  desires  and  while  so

considering,  the  cancellation  order  dated

28.08.2015 originally passed by the State and now

modified by this Court including any observations

made by the High Court would not come in their

way.

23) With  these  observations  and  the  directions,

this  appeal  stands  finally  disposed  of  leaving  the

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question of law raised by the parties in the appeal

open.   

                 ………...................................J.

[R.K. AGRAWAL]             

                        …... ……..................................J.

        [ABHAY MANOHAR SAPRE] New Delhi; September 05, 2017  

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