THE STATE OF MAHARASHTRA & ANR. versus KISHOR M. GADHAVE PATIL & ORS.

Leave granted.

p. 1023

This appeal is filed against the final judgment and order dated E 16.12.2015 passed by the High Court ofJudicature ofBombay Bench at Aurangabad in Writ Petition No. 8951 of2015 whereby the High Court allowed the writ petition filed by the respondents herein and made the 'Rule' absolute.

p. 1023

The controversy involved in the appeal, which due to subsequent F events, remains confined to very narrow issues surviving for consideration. However to appreciate what is survived, few relevant facts need mention below.

p. 1023

The appellants herein-State of Maharashtra and Joint Secretary, Law & Judiciary Department were the respondents whereas the G respondent Nos. I to 15 herein were the writ petitiOners before the High Court in a writ petition out of which this appeal arises.

p. 1023

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 Government as Additional Government Pleaders (Addi.GP)/ Government Pleaders(AGP))/Additional Public Prosecutors(APP) the Bench of the High Court at Aurangabad by order dated (Annexure-P-1 ). Similar orders of appointment were issued by on different dates in relation to some respondents.

pp. 1023–1024

The respondents accepted their appointment and functioning by discharging their duties as Addi. GP/ AGP/ APP 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.f28.08.2015 by taking recourse to the powers under Rule the Maharashtra Law Officers (Appointments, Conditions and Remuneration) Rules 1984 (hereinafter referred to as "the

p. 1024, margin B

The respondents, felt aggrieved of the order dated 28.08.2015, challenged its legality and correctness in the writ petition out this appeal arises.

p. 1024, margin B

By impugned order, the High Court allowed the respondents' writ petition and quashed the order of cancellation dated which has given rise to filing of this appeal by way of special the State of Maharashtra.

p. 1024, margin D

By interim order dated 29.01.2016, this Court operation of the impugned order of the High Court. As a result, cancellation order dated 28.08.2015 continued to remain in against the respondents.

p. 1024, margin E

It is pertinent to mention here, as stated by the learned appearing for the parties, that during the pendency of the term of the respondents on their respective posts expired on dates such as, 05.06.2010, 09.06.2010, ! 6.08.20 l 0, 05.l 0.20 l 0, and22.10.2016.

p. 1024, margin F

It is with this background, the question arises for consideration is as to what orders need to be passed while disposing of One cannot dispute that even if the impugned order is upheld, petitioners (respondents herein) would still not be entitled any more on the post because their respective terms have GADHAVE PATIL & ORS. [ABHAY MANOHAR SAPRE, end by effiux of time during the pendency of this appeal. It is dispute that the said terms were not extended by the State curtailed before its expiry period by issuing the cancellation order was impugned in the writ petition. It is also not in dispute cancellation order is upheld, the question of granting any respondent~ would_not arise.

pp. 1024–1025, margin G

Heard Mr. Kuna! A. Cheema, learned Addi. Government Pleader for the appellants and Mr. J.P. Cama, learned senior and Mr. Rahul Chitnis, learned counsel for the respondents.

p. 1025, margin B

Learned counsel for the appellants supported the cancellation .order dated 28.08.2015 and contended that keeping in view the down by this Court on the issue in question in several cases Kumari Shrilekha Vidyarthi & Ors. Vs. State ofU.P. & Ors., 1 SCC 212 State ofU.P. & Anr. Vs. Johri Mal, (2004) 4 SCC State of U.P. & Ors. Vs. Ajay Kumar Sharma & Anr., SCC 289, the High Court should not have quashed the cancellation

p. 1025, margin C

Learned counsel for the respondents, however, urged cancellation order dated 28.08.2015 having been passed under by the State, the same was rightly struck down by the High being stigmatic and punitive in nature.

p. 1025, margin D

Learned counsel in the alternative submitted that operating against the respondents, they could not work on their posts though otherwise they were ready to discharge their duties. was, therefore, urged that the respondents be paid their entire remuneration till the expiry of their respective terms.

p. 1025, margin E

It was also his alternative submission that in any respondents be paid their remuneration from the date of stay this Court (29.01.2016) till the date of expiry of their respective

p. 1025, margin F

Having heard the learned counsel for the parties and of the record of the case, we are inclined to dispose of the under.

p. 1025, margin G

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 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."

pp. 1025–1026, margin G

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 ifthe cancellation order dated 28.08.2015 is held to have been passed under to Rule 30(6).

p. 1026, margin D

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 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.

p. 1026, margin E

Let the amount be paid to each respondent within 3 months from the date of receipt of this order.

p. 1026, margin F

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.

p. 1026, margin G

With these observations and the directions, this appeal stands A finally disposed ofleaving the question oflaw raised by the parties in the appeal open.

p. 1027